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24225
AGREEMENT INFORMATION AGREEMENT NUMBER 24225 NAME/TYPE OF AGREEMENT GALLERY AT WEST BRICKELL, LLC/ DESCRIPTION HOME LOAN AGREEMENT/RETAIN THE 3RD LIEN POSITION SUBJECT TO APPROVAL BY THE HOUSING & COMMERCIAL LOAN COMMITTEE ON SEPTEMBER 28, 2022 EFFECTIVE DATE ATTESTED BY TODD B. HANNON ATTESTED DATE 9/7/2022 DATE RECEIVED FROM ISSUING DEPT. 1/9/2023 NOTE HOME LOAN AGREEMENT FOR THE GALLERY AT WEST BRICKELL, LLC This HOME Investments Partnerships Program ("HOME Program") Loan Agreement (this "Loan Agreement" or "Agreement") for The Gallery at West Brickell is dated as of this 1frilay of December, 2022, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter the "C" or "Lender"), and THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company (hereinafter the "Project Sponsor" or "Borrower"). FUNDING SOURCE: HOME Program AMOUNT: $3,000,000.00 in HOME Investment Partnership ("HOME") Funds RESOLUTION: The City of Miami Housing and Commercial Loan Committee ("HCLC") approval of July 30, 2021, July 19, 2022, and September 29, 2022 PROJECT NAME: The Gallery at West Brickell PROJECT TYPE: New Construction of a Rental Project PROJECT SPONSOR: The Gallery at West Brickell, LLC, a Florida limited liability company LAND OWNER: TERM OF THE AGREEMENT: AFFORDABILITY PERIOD: HOME ASSISTED UNITS: PROPERTY ADDRESS: IDIS NUMBER: SCI NUMBER: Miami -Dade County, a public body, corporate and politic See Section 1.19 Thirty (30) years commencing on the Closeout of the project Ninety-three (93) of the Affordable residential units shall be HOME Assisted Units for eligible individuals; all ninety-three (93) of the HOME Assisted Units shall be occupied by Very Low -Income Households during the Affordability Period. 201 Southwest 10 Street, Miami, Florida 33130 4048 91-04048 Page 1 of 40 EXHIBITS ATTACHED HERETO AND INCORPORATED HEREIN: Exhibit "A" Legal Description Exhibit "B" Scope of Work/Project Schedule Exhibit "C" Budget Exhibit "D" Form of Disbursement Agreement Exhibit "E" Affirmative Marketing Procedures and Responsibilities Exhibit "F" Form of Mortgage and Security Agreement Exhibit "G" Form of Declaration of Restrictive Covenants Exhibit "H" Form of Rent Regulatory Agreement Exhibit "I" Signage Requirements Exhibit "J" Additional Insurance Requirements Schedule A Schedule of Permitted Senior Financing RECITALS WHEREAS, the Project Sponsor is the leasehold owner of a long-term leasehold estate of the real property ("Property") described in Exhibit "A." The Project Sponsor is constructing a 29-floor high-rise residential affordable housing project known as The Gallery at West Brickell (the "Project"), that will increase the supply of rental housing units for Very Low Income Households (50% of AMI), by providing additional affordable rental units. WHEREAS, on July 30, 2021, July 19, 2022, and September 29, 2022 the City's Housing and Commercial Loan Committee ("HCLC") approved an allocation of HOME Investment Partnerships Program funds in the amount of $3,000,000.00 for the hard and soft construction costs of the affordable rental housing Project (the "HOME Funds"); and WHEREAS, the City and the Project Sponsor intend and agree that the HOME Funds be subject to the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the mutual covenants and obligations herein contained, and subject to the terms and conditions hereinafter stated, the parties hereto understand and agree as follows: ARTICLE I DEFINITIONS The City and the Project Sponsor hereby agree that the capitalized terms used herein shall have the meanings set forth below unless the context requires otherwise: Page 2 of 40 1.1 Affordability Period: The period of time that the Assisted Units must remain Affordable, in compliance with 24 CFR §92.252, 24 CFR §92.254, the Covenant, and the Rent Regulatory Agreement. The Affordability Period for this Project is thirty (30) years, commencing on the Close -Out of the Project. 1.2 Affordable: A project or unit that satisfies the requirements set forth in 24 CFR Part 92. 1.3 Close -Out of the Project: The date on which the Project has obtained all of the required Certificate(s) of Occupancy and all HOME Assisted Units have been leased to eligible HOME tenants. 1.4 Contract Records: Any and all books, records, documents, information, data, papers, letters, materials, electronic storage data and media, whether written, printed, computerized, electronic or electrical, however collected or preserved which are or were produced, developed, maintained, completed, received or compiled by or at the direction of the Project Sponsor or any Project contractor or subcontractor relating to the use of the HOME Funds in carrying out the duties and obligations required by the terms of this Agreement, including, but not limited to, financial books and records, ledgers, drawings, maps, pamphlets, designs, electronic tapes, computer drives and diskettes or surveys. 1.5 Effective Date: December l "f , 2022. 1.6 HUD: The United States Department of Housing and Urban Development. 1.7 HOME Assisted Units, or Assisted Units: Of the Project's total four hundred sixty five (465) units, there will be ninety-three (93) HOME Assisted Units or Affordable units that must be occupied by eligible households/individuals. All ninety-three (93) of the Affordable units shall be allocated for Very Low -Income Households. The payable rents on the HOME Assisted Units are subject to the Covenant and the Rent Regulatory Agreement. Page 3 of 40 1.8 HOME Loan Documents, or Loan Documents: Further restrictions apply to the HOME Assisted Units as provided in and this Agreement, the Covenant, the other HOME Loan Documents and the Legal Requirements, as applicable. The HOME Assisted Units shall remain Affordable throughout the Affordability Period. This Agreement and all other documents that may now or hereafter evidence or secure the HOME Funds together with other documents executed in connection therewith or presented by the Project Sponsor to the City in connection therewith or herewith, including but not limited to Exhibits D, F, G, H, and the Note, and all amendments, extensions and renewals to any of the foregoing. 1.9 HOME Funds, or, the Loan: The loan in the amount of $3,000,000.00 from the City to the Project Sponsor for Project construction. 1.10 HOME Program: The program created by the National Affordable Housing Act of 1990 to strengthen public/private partnerships to provide more Affordable housing to qualified persons. 1.11 HOME Requirements: The requirements contained in this Agreement, 24 CFR Part 92 and any other requirements imposed by the City. 1.12 Legal Requirements: All federal, state and local laws, regulations and requirements relating or pertaining to the HOME Loan and/or the Project, and any requirements imposed by the City. 1.13 Very Low -Income Household: Annual income does not exceed fifty percent (50%) of the median income for the area, as determined by HUD, with adjustments and certain exceptions as provided in 24 CFR Part 92. 1.14 Project: The Gallery at West Brickell is new construction consisting of a 29-floor residential high-rise building located at 201 Southwest 10 Street, Miami, Florida 33130. The project will have a total of four hundred sixty five (465) units. The ninety-three (93) Affordable HOME Assisted Units shall be occupied by eligible tenants, as Page 4 of 40 1.15 Property: 1.16 OMITTED. 1.17 Permitted Senior Financing: 1.18 Term: 1.19 The Covenant: 1.20 The Note: 1.21 The Mortgage described herein, and shall be comprised of fifty- four (54) studio/one-bathroom apartment units, and thirty-nine (39) one bedroom/one bathroom apai lucent units. The Building on the Property shall be constructed in accordance with the Project Schedule/Scope of Work and the plans and specifications (attached hereto and incorporated herein as Exhibit "B"), that will provide affordable housing opportunities in accordance with HUD income guidelines. The real property located at 201 Southwest 10 Street, Miami, Florida 33130, in the County of Miami- Dade, State of Florida, on which the Project is being constructed, as legally described in Exhibit "A," attached hereto and incorporated herein. See Section 2.3(B), 5.17 and Schedule A. The period commencing on the Effective Date hereof and ending at the expiration of the Affordability Period, unless this Agreement is terminated sooner as provided for herein. A Declaration of Restrictive Covenants to be recorded in the Public Records of Miami -Dade County, Florida to ensure that the HOME Assisted Units will qualify and remain Affordable during the Affordability Period. The Amended and Restated Promissory Note of even date herewith evidencing the Loan, executed by the Project Sponsor in favor of the City. The Amended and Restated Leasehold Mortgage and Security Agreement collateralizing the Loan, executed by the Project Sponsor, a copy of which is attached hereto and incorporated herein as Exhibit "F." Page 5 of 40 ARTICLE II HOME FUNDS Upon satisfaction of all conditions set forth herein, the City shall disburse the HOME Funds to the Project Sponsor for the purposes herein set forth. 2.1 Use of Funds. The Gallery at West Brickell Project is new construction consisting of a 29-floor residential building located at 201 Southwest 10 Street, Miami, Florida 33130. The Project consists of a total of four hundred sixty five (465) units. Ninety- three (93) will be HOME Assisted Units for Very Low -Income for a period of thirty (30) years, commencing at the Close -Out of the Project. The ninety-three (93) HOME Assisted Units shall be occupied by eligible individuals; the HOME Funds shall be used for certain development costs and for construction hard costs of the Project, in accordance with the Scope of Work/Project Schedule attached hereto and incorporated herein as Exhibit "B" and the Budget attached hereto and incorporated herein as Exhibit "C." 2.2 Disbursement. The HOME Funds shall be disbursed in accordance with the Budget attached hereto and incorporated herein as Exhibit "C" and in the manner set forth in that certain Disbursement Agreement, of even date herewith, to be entered into by the City and the Project Sponsor (the "Disbursement Agreement") a copy of which is attached hereto as Exhibit "D". The Project Sponsor shall not request disbursement of such Funds until such Funds are needed for payment of eligible costs. The amount of each request for disbursement must be limited to the amount needed for the payment of eligible costs. The Project Sponsor agrees and affirms that any expenditure of the HOME Funds will be in compliance with the requirements of 24 CFR §92.206. Project Sponsor acknowledges and affirms that Fifty Thousand and 00/100 Dollars ($50,000.00) of the HOME Funds was awarded to the Project for, and may be used by the City to cover, certain costs incurred by the City in connection with the Project. 2.3 Repayment of HOME Funds. Repayment by the Project Sponsor of principal, accrued interest, and other costs and charges set forth in the HOME Loan Documents shall be deferred to the end of the Affordability Period, at which time the accrued interest and principal shall be due and payable. Upon the expiration of the Affordability Period, the HOME Loan will be repaid as follows: A. This HOME Funds construction loan shall bear interest at the rate of zero percent (0%) during the construction of the project. Upon the Close -Out of the Project, the loan will be converted to a 30- year permanent loan that shall bear interest at the rate of three percent (3%) per annum thereon. The principal and any accrued interest will be deferred to the end of the thirty (30) year Affordability Period, at which time the principal and all accrued interest are due and payable. At the sole discretion of the City, the interest or principal payments, or both, may be waived. Page 6 of 40 B. The Project Sponsor shall not agree to any transaction or agreement that will create additional mandatory superior payments without the City's prior written approval other than as set forth on Schedule "A" attached hereto and made a part hereof C. Notwithstanding any provision herein to the contrary, in the event that the Project Sponsor shall: (i) Meet all of its obligations hereunder and under all of the HOME Loan Documents executed in connection herewith; (n) (m� (iv) Commence construction of the Project within six (6) months from the Effective Date of this Agreement; Obtain all required certificates of occupancy for the Project, within thirty-six (36) months from the Effective Date; Rent all HOME Assisted Units to Low -Income and Very Low- Income Households in accordance with the requirements of this Agreement, within eighteen (18) months after the issuance of certificates of occupancy for the Project, but in no event later than fifty-four (54) months from the Effective Date; (v) Throughout the Affordability Period, rent the HOME Assisted Units to Very Low Income Households in accordance with the requirements of this Agreement, the Rent Regulatory Agreement and the other HOME Loan Documents; and (vi) Throughout the Affordability Period, comply with all applicable HOME Requirements and all applicable requirements hereof and in the other HOME Loan Documents; then, in such event, the City may, in its sole and absolute discretion, cancel all remaining indebtedness on the Loan, cancel the Note (and deliver, or cause to be delivered, the cancelled original Note to the Project Sponsor), and satisfy the Mortgage (and prepare and record a satisfaction of the Mortgage in the Public Records of Miami -Dade County, Florida). D. Notwithstanding any provision herein to the contrary, the amount of the HOME Funds disbursed hereunder, together with all interest accrued thereon, shall become due and payable upon the occurrence of an Event of Default (which continues beyond all applicable notice and cure periods) as described in Article VII below. 2.4 Commitment Fee: Project Sponsor agrees to pay the City a $5,000.00 commitment fee prior to the disbursement of any HOME Funds. ARTICLE III Page 7 of 40 DISBURSEMENT REQUIREMENTS 3.1 CONDITIONS OF DISBURSEMENT OF HOME FUNDS. The City shall not be obligated to disburse the HOME Funds unless and until the City has received the following: 3.1.1 Title Insurance. A title insurance commitment issued by a title insurance company acceptable to the City identifying the City's insurable interest, the Project Sponsor's leasehold estate in the Property, together with copies of all instruments which appear as exceptions therein. The title commitment and policy shall be issued without exceptions, except for those exceptions permitted by the City, and shall include such affirmative coverage as the City shall require. 3.12 Survey. An original current survey of the Property made by a registered surveyor satisfactory to the City and the title company and containing such certifications as the City and the title company may require. 3.13 Zoning. Evidence that the Property and the proposed improvements comply with all applicable zoning ordinances. 3.1.4 HOME Program. Evidence of the Project Sponsor's satisfactory compliance with all of the applicable requirements of the HOME Program, pursuant to 24 CFR Part 92, as hereinafter detailed. 3.15 Corporate Documents. (a) The operating agreement, or its equivalent, and a good standing certificate for the Project Sponsor and its Manager, certified by the appropriate governmental authority. (b) Resolutions, and incumbency certificates, or, in the case of a partnership, their equivalent, for the Project Sponsor and its Manager certified by the Corporate Secretary or other authorized signer, authorizing the consummation of the transactions contemplated hereby, all satisfactory to the City. (c) Evidence satisfactory to the City that Project Sponsor and any partner of such entity, is qualified to receive funds under the HOME Program in accordance with the accordance with the HOME Requirements. 3.1.6 Insurance Policies. The Project Sponsor shall obtain and furnish evidence of insurance coverage as the City may require in connection with the Project, which may include, but is not limited to, the following: (a) Commercial General Liability with limits of not less than $1,000,000.00 per occurrence and $2,000,000.00 aggregate, protecting against property Page 8 of 40 (b) damage, advertising injury claims, personal injury and bodily injury, including death. The insurance policy shall be written on a primary and non- contributory basis and shall further list the City as an additional insured. Business Auto Liability affording coverage on all owned autos, including hired and non -owned auto exposures with limits of $1,000,000 per accident. The City shall be listed as an additional insured. (c) Workers' Compensation and Employer's liability coverage subject to the statutory limits as required by the laws of the State of Florida ("State"). The Project Sponsor shall be required to obtain and maintain at all times the insurance coverage outlined under this Section, and shall further furnish evidence to the City of such. In addition, the Project Sponsor shall require its contractors to furnish certificates of insurance in accordance to Exhibit "J." To the extent available from the applicable insurance company, all such policies shall provide the City with a written notice of cancellation or material change from the insurer not less than thirty (30) days prior to any such cancellation or material change, and all such policies shall be written by insurance companies satisfactory to the City. Failure of the Project Sponsor to submit all required evidence of the specified insurance coverage fourteen (14) calendar days prior to the start of Project shall delay the disbursement of the HOME Funds. 3.1.7 Operative Documents. This Agreement, the Covenant, the Note, the Mortgage, the Rent Regulatory Agreement, the Disbursement Agreement, the other HOME Loan Documents, and all other HOME Documents, shall be duly and lawfully executed by the Project Sponsor and in recordable form, where appropriate. 3.1.8 Appraisal. A current appraisal of the Property made by a member of the American Institute of Real Estate Appraisers. 3.1.9 List of Contractors and Subcontractors. A list of all of the Project Sponsor's subcontractors and contractors as of the date of execution of this Agreement, and copies of all contracts in excess of $10,000 for the performance of services or the supply of materials in connection with the Project to be funded pursuant to this Agreement. 3.1.10 Compliance with HOME Requirements. All other documents required by the HOME Program evidencing compliance with HOME Requirements. 3.1.11 Firm Commitments for Construction Financing. Evidence of firm commitments for a construction/permanent loan(s) as provided for in the Budget, attached hereto as Exhibit "C" and made a part hereof. Page 9 of 40 3.1.12 Evaluation of Project Costs. The evaluation of the Project's costs as prepared by an independent engineer/general contractor, engaged by the Project Sponsor, that supports the total projected construction costs of the Project. 3.1.13 First Source Hiring Agreement. If applicable, an executed First Source Hiring Agreement between the Project Sponsor and the City. 3.1.14 Historic Preservation Review. All applicable requirements of the State of Florida Historic Preservation Department shall have been met prior to the disbursement of any funds hereunder. 3.1.15 Environmental Report. The Project Sponsor shall submit all information requested by the City with respect to the Project including, but not limited to, Phase I and Phase II Environmental Assessment Reports, as applicable. 3.1.16 Audit Report. The Project Sponsor shall submit audit reports, as are required herein, to the City. 3.1.17 Personnel Policies and Administrative Procedure Manuals. The Project Sponsor shall submit detailed documents describing the Project Sponsor's internal organizational structure, property management and procurement policies and procedures, personnel management, accounting policies and procedures, etc. Such information shall be submitted to the City within thirty (30) days of the execution of this Agreement and prior to the disbursement of any funds hereunder. 3.1.18 Certificate Regarding Lobbying. Such Certificate Regarding Lobbying as may be requested by the City. 3.1.19 Certificate Regarding Debarment, Suspension, and Other Responsibility Matters. Such Certificate Regarding Debarment, Suspension and Other Responsibility Matters as may be requested by the City. 3.120 Public Entity Crime Affidavit. Such Public Entity Crime Affidavit as may be required by the City. 3.121 Environmental Clearance. Project construction must not commence, nor will any HOME Funds be advanced, nor are any costs to be incurred, until satisfactory completion of an environmental review and receipt by the City of a release of funds from HUD under 24 CFR Part 58. HOME Funds will not be disbursed until the Removal of Grant Condition is received by the City from HUD. 3.122 All other documents required by the City. 3.123 Project Sponsor Compliance. The Project Sponsor shall be in full compliance with the requirements of previously funded City projects that are either under construction or in their affordability periods, including, but not limited to, the Page 10 of 40 requirements of applicable Office of Management and Budget ("OMB") Circular(s) and any other reporting and insurance requirements imposed by the City for those projects. ARTICLE IV HOME PROGRAM REOUIREMENTS The Project Sponsor shall comply with all applicable requirements of the HOME Program as provided in 24 CFR Part 92 including, but not limited to, the following HOME Requirements: 4.1 GENERAL. 4.1.1 The Project Sponsor shall maintain current documentation that its activities qualify under the HOME Requirements. 4.1.2 The Project Sponsor shall ensure that any expenditure of the HOME Funds will be in compliance with the requirements of 24 CFR §92.206. 4.1.3 The Project Sponsor shall comply with all the non-discrimination requirements of 24 CFR §92.350. 4.1.4 The Project Sponsor shall comply with the affirmative marketing requirements specified in Exhibit "E" attached hereto and incorporated herein; further the Project Sponsor shall annually report to the City on all actions taken to comply with said requirements as same are specified in Exhibit "E". 4.1.5 The Project Sponsor shall comply with all applicable provisions of 24 CFR Part 92, including, but not limited to: (i) the displacement, relocation and acquisition requirements of 24 CFR §92.353; (ii) the labor requirements of 24 CFR§92.354; (iii) the conflict of interest provisions prescribed in 24 CFR §92.356(f), in addition to the conflict of interest provisions specified under Section 6.7 of this Agreement; and (iv) shall carry out each Project activity in compliance with all other applicable Federal laws and regulations. 4.1.6 The Project Sponsor shall ensure that, upon completion of the Project and throughout the Affordability Period, the Project meets the property standards contained in 24 CFR §92.251 and the lead -based paint requirements of 24 CFR §92.355 and 24 CFR Part 35, subparts A, B, J, K, M and R. 4.1.7 Throughout the Affordability Period the Project Sponsor shall comply with all Project housing quality standards imposed by the City. 4.1.8 The Project Sponsor agrees that throughout the Affordability Period, Page 11 of 40 Rents and tenant incomes for the HOME Assisted Units shall be monitored by the City. 4.1.9 The Project Sponsor shall comply with the project requirements of 24 CFR Part 92, subpart F, as applicable in accordance with the type of project assisted. 4.1.10 Attendance at citizen participation committees/meetings, provided the Project Sponsor is provided reasonable notice of such committees/meetings. 4.1.11 The Project Sponsor shall, to the greatest extent possible, give Low - Income residents of the service community opportunities for training and employment. 4.1.12 The Project Sponsor shall ensure and maintain documentation that conclusively demonstrates that each activity assisted in whole or in part with HOME Funds is an activity that benefits Very Low Income Households. 4.2 REAL PROPERTY. 4.2.1 Any real property that was acquired or improved in whole or in part with HOME Funds received from the City shall be either: (a) Used to complete one of the HOME eligible activities as required by and defined in 24 CFR Part 92 for such period of time as determined by the City based on the eligible activity. (b) Disposed of in a manner that results in the City being reimbursed for the amount of the current fair market value of the Property as may be determined by the City in its sole and absolute discretion, less any proportionate portion of the value attributable to expenditures of non -HOME funds for the acquisition, or improvement, of the Property. (c) If not used in accordance with paragraph (a) above, then that shall constitute an Event of Default and Project Sponsor shall pay to the City an amount equal to the amount of HOME Funds disbursed at the time of default plus accrued interest. 4.2.2 All real property purchased in whole or in part with funds for this Agreement with the City, or transferred to the Project Sponsor after being purchased in whole or in part with funds from the City, shall be listed in the property records of the Project Sponsor and shall include: a legal description; size; address and location; owner's name if different from the Project Sponsor; information on the transfer or disposition of Page 12 of 40 the property; and a map indicating whether property is in parcels, lots, or blocks and showing adjacent streets and roads. The property records shall describe the programmatic purpose for which the property was acquired and identify the HOME activity that will be completed. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the HOME activity that will be completed. 4.3 PERSONAL PROPERTY. 4.3.1 Definitions. (a) Personal Property. Personal Property of any kind except real property: (b) 1) Tangible. All personal property having physical existence. 2) Intangible. All personal property having no physical existence such as patents, inventions and copyrights. Non -expendable Personal Property. Tangible personal property of a non- consumable nature, with a value of $500.00 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility, or another piece of equipment. (c) Expendable Personal Property. All tangible personal property other than non -expendable property. 4.3.2 Requirements. The Project Sponsor shall comply with the non -expendable personal property requirements stated below: (a) All non -expendable personal property purchased in whole or in part with funds from this and previous contracts with the City shall be listed in the property records of the Project Sponsor and shall include: a description of the property; location; model number; manufacturer's serial number; date of acquisition; funding source; unit cost; property inventory number; information on its condition; and information on the transfer, replacement, or disposition of the property. (b) (c) All non -expendable personal property purchased in whole or in part with funds from this and previous contracts with the City shall be inventoried annually by the Project Sponsor and an inventory report submitted to the City when and as requested by the City. The inventory report shall include the elements listed in Paragraph 4.3.2(a), above. Ownership of all non -expendable personal property purchased in whole or in part with funds given to the Project Sponsor pursuant to the terms of this Agreement shall vest in the City. Page 13 of 40 4.4 DISPOSITION. The Project Sponsor shall obtain the prior written approval of the City for the disposition of real property, expendable personal property and non -expendable personal property purchased in whole or in part with funds given to the Project Sponsor or its subcontractors pursuant to the terms of this Agreement, and shall dispose of all such property in accordance with instructions from the City. Those instructions may require the return of all such property to the City. 4.5 SUBCONTRACTS AND ASSIGNMENTS. 4.5.1 The Project Sponsor shall ensure that all subcontracts and assignments funded with HOME Funds hereunder: (a) (b) (c) (d) Identify the full, correct, and legal name of all parties; Describe the activities to be performed; Present a complete and accurate breakdown of its price component; Incorporate a provision requiring compliance with all applicable regulatory and other requirements of this Agreement, including but not limited to the City's Minority Procurement Ordinance, and with any other conditions and/or approvals that the City may deem necessary. The requirements of this subparagraph apply to subcontracts and assignments in which parties are engaged to carry out any eligible substantive programmatic service, as may be defined by the City, set forth in this Agreement. The City shall in its sole and absolute discretion determine when services are eligible substantive programmatic services and subject to the audit and record- keeping requirements described in this Agreement; and (e) Incorporate the language of the Certificate Regarding Lobbying executed in connection herewith. 4.5.2 The Project Sponsor shall incorporate in all consultant and other subcontracts funded with HOME funds hereunder the following provision: "[The Project Sponsor] is not responsible for any insurance or other fringe benefits, e.g., social security, income tax withholding, retirement or leave benefits, for [the Consultant] or employees of [the Consultant], that are normally available to direct employees of [the Project Sponsor]. [The Consultant] assumes full responsibility for the provision of all insurance and fringe benefits for himself/herself/itself and employees retained by [the Consultant] in carrying out the Scope of Services provided in this subcontract." 4.5.3 The Project Sponsor shall be responsible for monitoring the contractual Page 14 of 40 performance of all subcontracts. 4.5.4 The Project Sponsor shall submit to the City for its review and confirmation any subcontract engaging any party who agrees to carry out any substantive programmatic activities, to ensure its compliance with the requirements of this Agreement. The City's review and confirmation shall be obtained prior to the release of any funds for the Project Sponsor's subcontractor(s). 4.5.5 The Project Sponsor shall receive written approval from the City prior to either assigning or transferring any obligations or responsibility set forth in this Agreement. 4.5.6 Approval by the City of any subcontract or assignment shall not under any circumstances be deemed to be the City's agreement to incur any obligations in excess of the total dollar amount agreed upon in this Agreement. 4.5.7 The Project Sponsor and its subcontractors shall comply with the Davis -Bacon Act, if applicable, the Copeland Anti -Kick Back Act, the Contract Work Hours and Safety -Standards Act, the Lead -Based Paint Poisoning Prevention Act, the Residential Lead Based Paint Hazard Reduction Act of 1992 (and implementing regulations at 24 C.F.R. Part 35) and any other applicable laws, ordinances and regulations. 4.5.8 If the City requests it, the Project Sponsor shall submit to the City, for written prior approval, all proposed Solicitation Notices, Invitations for Bids, and Requests for Proposals. 4.6 REPORTING OBLIGATIONS. 4.6.1 The Project Sponsor shall submit the following as required by the City: 4.6.1.1 Progress Reports. The Project Sponsor shall submit status reports and projected completion dates to describe the progress made by the Project Sponsor in achieving each of the objectives identified in Exhibit "B" attached hereto. The Project Sponsor shall also submit an Earned Income Report in such form as may be required by the City. Both the Progress Report and the Earned Income Report shall be provided to the City on a quarterly basis. 4.6.12 Inventory Report. The Project Sponsor shall furnish such reports on the Project real property, as specified in Paragraph 4.2 hereof, as may be requested by the City. 4.6.13 Affirmative Action Plan. The Project Sponsor shall report to the City such information relative to the equality of Project employment opportunities whenever requested by the City. Page 15 of 40 4.6.14 Assurance of Compliance with Section 504 of the Rehabilitation Act. The Project Sponsor shall report on its compliance with Section 504 of the Rehabilitation Act, whenever requested by the City. 4.6.15 Affirmative Marketing Plan and Report. The Project Sponsor shall report to the City, annually, on all actions taken to comply with the affirmative marketing requirements provided in Exhibit "E" attached hereto. 4.6.1.6 List of Subcontractors. The Project Sponsor shall provide a list of all Project contractors and subcontractors, and copies of all contracts in excess of $10,000 for the performance of services or the supply of materials in connection with the Project. 4.6.1.7 Previously Funded City Projects. The Project Sponsor shall comply with (i) all applicable reporting requirements relating to the Project Sponsor's previously funded City projects which are under construction or in the Affordability Period, including, without limiting the foregoing, OMB A-133; and (ii) all applicable insurance requirements relating to such other previously funded projects of the Project Sponsor. 4.6.1.8. Audits, Other Information and Records. Q The Project Sponsor shall submit to the City an audit conducted by an independent certified public accountant or firm of independent certified public accountants in accordance with generally accepted auditing standards, including audited financial statements and a report on compliance with laws and regulations based on the audit of financial statements. Two copies of each such audit must be delivered to the City no later than six (6) months following the end of each Project Sponsor fiscal year. Each such audited financial statement is to be for the 12 months ending December 31 and shall include: a. Comparative Balance Sheet with prior year and current year balances; b. Statement of revenue and expenses; c. Statement of changes in fund balances or equity; d. Statement of cash flows; and e. Notes The financial statements shall be accompanied by a certification of the Project Sponsor as to the accuracy of such financial statements. Page 16 of 40 (n) A late fee of $500.00 will be assessed by the City for failure to submit any of the required audited financial statements or the certification each year as required. At the request of the City, the Project Sponsor shall also furnish to the City unaudited financial statements of the Project Sponsor, certified by the Project Sponsor's principal financial or accounting officer, covering such financial matters as the City may request, including without limitation, monthly statements with respect to the Project. The Project Sponsor shall maintain all Contract Records in accordance with generally accepted accounting principles, procedures, and practices, which records shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the City pursuant to the terms of this Agreement. (m) The Project Sponsor shall ensure that the Contract Records shall be at all times subject to and available for full access and review, inspection or audit by the City and federal personnel and any other personnel duly authorized by the City. (iv) The Project Sponsor shall include in all Project subcontracts, each of the record keeping and audit requirements detailed in this Agreement. The City shall in its sole discretion determine when services are subject to the audit and recordkeeping requirements described above. The Project Sponsor shall submit to the City all reports described in this Section 4.6, and all other reports that the City may reasonably require, in such form, manner and frequency as the City may require to monitor the progress of the Project and the Project Sponsor's performance and compliance with this Agreement, the Rent Regulatory Agreement, the other HOME Loan Documents and all Legal Requirements. 4.6.2 Federal, State and County Laws and Regulations. 4.6.2.1 The Project Sponsor shall comply with all applicable provisions of federal, state, county and City laws, regulations, rules and administrative requirements, such as OMB Circular No. A-122, OMB Circular No. A-110, OMB Circular No. A-21, and OMB Circular No. A-133, which are incorporated herein by reference, as they may be revised from time to time. Page 17 of 40 4.6.2.2 The Project Sponsor shall comply with all applicable federal laws and regulations, including, but not limited to: 24 CFR Part 92; 24 CFR Part 85, Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246 which requires equal employment opportunity; and with the Energy Policy and Conservation Act (Pub. L. 94-163) which requires mandatory standards and policies relating to energy efficiency. 4.6.2.3 If the amount payable to the Project Sponsor pursuant to the terms of this Agreement is in excess of $100,000.00, the Project Sponsor shall comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act of 1970 (42 U.S.C. 7401 et. seq.), as amended; the Federal Water Pollution Control Act (33 U.S.C. 1251), as amended; Section 508 of the Clean Water Act (33 U.S.C. 1368); Environmental Protection Agency regulations (40 CFR Part 15); and Executive Order 11738. 4.7 ADDITIONAL HOME FUNDING. The Project Sponsor acknowledges that under the HOME Program, additional HOME funds may be committed to the Project up to one (1) year after "Project Completion", but the amount of HOME funds in the Project may not exceed the per -unit subsidy amount established in 24 CFR Part 92. The City may, in its sole discretion, de -obligate the HOME Funds from the Project, if by no later than six (6) months from the date of approval of the HOME Funds, the Borrower has failed to obtain all funding commitments represented to HCLC. ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PROJECT SPONSOR The Project Sponsor represents and warrants to the City as follows: 5.1 Organization and Existence. The Project Sponsor is a Florida limited liability company, duly organized, validly existing and in good standing under the laws of the State of Florida, and has full power and authority to conduct its business as presently conducted, to receive the HOME Funds, and to own, operate and develop the Project. Page 18 of 40 The Project shall comply with all applicable HOME Requirements. The Project Sponsor has full power and authority to perform the provisions hereof and of its agreements and undertakings with the City and to perform the transactions contemplated hereby, and such execution and performance have been duly authorized by all necessary corporate or other approvals and actions. 52 Correctness of Documents. The cost estimates, Budget, schedules, and all other documents furnished to the City in accordance with the HOME Program, this Agreement, and/or the other HOME Loan Documents, are true and correct in all material respects and accurately set forth the facts contained therein and neither misstate any material fact nor, separately or in the aggregate, fail to state any material fact necessary to make the statements made therein not misleading. 53 Absence of Proceedings, Actions and Judgments. There are no conditions, circumstances, events, agreements, documents, instruments, restrictions, actions, suits or proceedings pending or threatened against or affecting the Project Sponsor, the Project or the Property which could adversely affect the Project Sponsor's ability to comply with the HOME Program, complete or operate the Project or to perform its obligations hereunder or which would constitute an Event of Default hereunder or under the other HOME Loan Documents regardless of the giving of notice or the passage of time or both. There are no outstanding or unpaid judgments or arbitration awards against the Project Sponsor. 5.4 Non -Default. The Project Sponsor is not in default or violation with respect to any Legal Requirement, nor is it in default under or in material breach of any instrument or agreement to which it is a party or by which it otherwise may be bound. The execution and delivery of this Agreement and the other HOME Documents, the consummation of the other transactions contemplated hereby, and the ownership and development of the Project as contemplated hereby and by the other HOME Documents: (i) do not and will not conflict with or result in violation of any Legal Requirement or in the breach or default under any indenture, contract, agreement or other instrument to which the Project Sponsor is a party or by which it may be bound; and (ii) have been duly authorized by all necessary actions and approvals, whether corporate or otherwise. 5.5 Valid Obligations. This Agreement and all of the other HOME Loan Documents, when executed and delivered, shall constitute the duly authorized, legal, valid and binding obligations of the Project Sponsor and will be enforceable in accordance with their respective terms. 5.6 Marketable Title. The Project Sponsor has good and marketable leasehold title to the Property, subject only to: (a) the exceptions and other matters set forth in that certain Title Insurance Commitment (Order Number 10772285) issued by Fidelity National Title Insurance Company, effective as of September 12, 2022, at 8:00 am, as endorsed. (collectively, the "Title Commitment and Exceptions"); and (b) from time to time, the granting of utility and similar easements on a non -material portion of the Property to utility and similar service providers for the installation and maintenance of utility and similar service equipment and components. Page 19 of 40 5.7 Compliance. The completion and use of the Project in accordance with the Scope of Work will comply fully with all Legal Requirements, and with all limitations on the use of the Project, or any other condition, grant, easement, covenant, or restriction, whether recorded or not. All necessary approvals, permits and licenses for the construction, operation, and use of the Project have been unconditionally obtained and are in full force and effect, or if the present state of construction of the Project does not allow such issuance, then such approvals, permits and licenses will be issued when the Project is completed. 5.8 Encroachments. When completed in accordance with the Scope of Work, the Project will not encroach upon any building line, setback line, side yard line or other recorded or visible easements or other easements of which the Project Sponsor is aware which exists (or which the Project Sponsor has reason to believe may exist) with respect to the Project other than set forth in the Title Commitment and Exceptions. 5.9 Scope of Work. The Scope of Work is complete in all respects, and contains all details requisite for the Project which, when built and equipped in accordance therewith, shall be ready for the intended use and occupancy thereof. 5.10 Leases. There are no leases, tenancies, licenses or agreements for use of any part of the Property other than as specifically disclosed to and approved by the City, which, for avoidance of doubt (and which the City hereby acknowledges and agrees), are limited to the leases for the rental of each HOME Assisted Unit each which may be entered into from time to time. 5.11 Pending Assessments. The Project Sponsor has no knowledge of any pending or proposed governmental action that would impair the operation or value of the Project or result in a special assessment against the Project. 5.12 Waste. The Project Sponsor shall not commit or suffer waste or negligence on the Project. 5.13 Fraud. No fraud by the Project Sponsor has occurred in the qualification of the Project, the Project Sponsor and/or the Property under the HOME Program, the negotiation of this Agreement and the other HOME Documents, nor in the transactions contemplated hereby. 5.14 No Casualty. No part of the Property and/or the Project has been damaged or has been subjected to condemnation or other proceedings, and, to the best of the Project Sponsor's knowledge and belief, no such proceedings have been threatened. 5.15 No Changes. There have been no material adverse changes in projected costs and expenses of or from the Project or in the occupancy of the Property or any other features of the transactions contemplated hereby as submitted to the City. 5.16 Compliance with Laws and Regulations. The Project Sponsor will comply at all times with all Legal Requirements. The Project Sponsor will comply at all times with the HOME Requirements affecting the ownership, use, construction, lease and operation of the Proj ect. Page 20 of 40 5.17 Other Project Financing. The Project Sponsor has not applied for nor received, and does not otherwise have available, in connection with the Project any other financing/funding, except for those funds, loans and/or loan commitment previously identified in writing to, and approved by, the City on September 29, 2022 (which funds include, without limitation, those certain funds in the amount of $3,120,900 from the School Board of Miami - Dade County). The Project Sponsor has not applied for nor received, and does not otherwise have available, in connection with the Project any other senior financing/funding, except for those funds, loans and/or loan commitment set forth on the attached Schedule A (the "Permitted Senior Financing"). 5.18 Reaffirmation. Each of the representations and warranties set forth in this Article shall be true at all times and the acceptance of the HOME Funds hereunder by the Project Sponsor shall be deemed to be a reaffirmation of each of the representations and warranties given in this Agreement. ARTICLE VI PROJECT SPONSOR'S AND OWNER'S OBLIGATIONS 6.1 Scope of Work. The Project Sponsor shall perform the Scope of Work as set forth herein and on Exhibit "B" attached hereto. Project Sponsor shall: (a) meet all of its obligations hereunder and under all of the HOME Loan Documents executed in connection herewith, (b) commence construction within six (6) months from the Effective Date of the contract, (c) within eighteen (18) months after the issuance of the certificates of occupancy for the Project, but in no event later than fifty- four (54) months from the Effective Date, rent all ninety-three (93) HOME Assisted Units to Very Low -Income Households in accordance with the requirements of this Agreement, (d) throughout the Affordability Period, rent the HOME Assisted Units to Very Low Income Households in accordance with the requirements of this Agreement, the Rent Regulatory Agreement, and the other HOME Loan Documents; and (f) throughout the Affordability Period, comply with all applicable HOME Requirements and all applicable requirements hereof and in the other HOME Loan Documents with regard to the HOME Assisted Units. The tenant's portion of rents charged for HOME Assisted Units shall be limited as set forth in the Rent Regulatory Agreement executed in connection herewith. 6.2 Reporting Obligations. The Project Sponsor shall submit to the City all reports as described in Section 4.6 hereof, and all other reports that the City may reasonably require, in such form, manner, and frequency as the City may reasonably require to monitor the progress of the Project and the Project Sponsor's performance and compliance with this Agreement and all Legal Requirements. 6.3 Retention of Records. The Project Sponsor shall retain all Contract Records for five (5) years after the expiration of the Affordability Period (hereinafter referred to as the "Retention Period") subject to the limitations set forth below: (a) If the City or the Project Sponsor has received or given notice of any Page 21 of 40 kind indicating any threatened or pending litigation, claim or audit arising out of the activities relating to the Project or the Scope of Work or under the terms of this Agreement, the Retention Period shall be extended until such time as the threatened or pending litigation, claim or audit is, in the sole and absolute discretion of the City, fully, completely and finally resolved. (b) The Project Sponsor shall allow the City or any person authorized by the City full access to and the right to examine any of the Contract Records during the required Retention Period. (c) The Project Sponsor shall notify the City in writing, both during the pendency of this Agreement and after its expiration termination, as part of the final closeout procedure, of the address where all Contract Records will be retained. 6.4 Provision of Records. All of the Contract Records are subject to the provisions of Chapter 119, Florida Statutes, commonly referred to as the "Public Records Law". The Project Sponsor shall provide to the City, upon request, all Contract Records. The requested Contract Records shall become the property of the City without restriction, reservation, or limitation on their use and shall be made available by the Project Sponsor at any time upon request by the City. The City shall have the unlimited right to all books, articles, or other copyrightable materials developed in the performance of this Agreement, including, but not limited to, the right of royalty -free, non-exclusive, and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, the Contract Records for public purposes. Should Project Sponsor determine to dispute any public access provision required by Florida Statutes, then Project Sponsor shall do so at its own expense and at no cost to the City. IF PROJECT SPONSOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO PROJECT SPONSOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT AS A PUBLIC CONTRACT, PLEASE CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS AT TELEPHONE NUMBER 305-416-1800, EMAIL: PUBLICRECORDS@MIAMIGOV.COM, AND MAILING ADDRESS: PUBLIC RECORDS C/O OFFICE OF THE CITY ATTORNEY, 9TH FLOOR, MIAMI RIVERSIDE CENTER, 444 S.W. 2ND AVENUE, MIAMI, FLORIDA 33130 OR THE CITY'S DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT'S CUSTODIAN OF RECORDS AT 2ND FLOOR, 14 NORTHEAST 1ST AVENUE, MIAMI, FLORIDA 33132. If the Project Sponsor receives funds from, or is under regulatory control of, other governmental agencies and those agencies issue monitoring reports, regulatory examinations, or other similar reports, the Project Sponsor shall provide a copy of each such report and any follow- up communications and reports to the City immediately upon such issuance unless such disclosure is a violation of those agencies' rules. 6.5 Prior Approval. Except for encumbering the Property as required to obtain the permitted financing as set forth in Section 5.17 of this Agreement, Schedule A and Schedule B Page 22 of 40 attached, the Project Sponsor shall obtain the City's prior written approval prior to undertaking any of the following with respect to the Project and/or the Property: (a) the sale, assignment, pledge, transfer, hypothecation or other encumbrance or disposition of any proprietary or beneficial interest in the Project Sponsor, the Project or the Project Sponsor's estate in the Property, or any change in the operating control of the Project Sponsor, which shall require the prior approval of the City's HCLC or the City Commission, as appropriate (b) Except in the case of repair or replacement caused by normal wear and tear, and otherwise due to casualty or condemnation in accordance with the terms of this Agreement, the disposition of any real property or any expendable personal property or non -expendable personal property as defined in Paragraph 4.3.1. (c) (d) Any proposed Solicitation Notice, Invitation for Bids or Request for Proposals. The disposal of any Contract Records during the Retention Period. 6.5.1 Director of Housing and Community Development of the City of Miami shall have the discretion to approve and authorize, by way of Memorandum to the City Manager, the execution of necessary documents to further Project Close -Out, provided, however, that no material terms are affected. 6.6 Monitoring. The Project Sponsor shall permit the City and other persons duly authorized by the City to inspect all Contract Records, facilities, goods, and activities of the Project Sponsor that are in any way connected to the activities undertaken pursuant to the terms of this Agreement, and/or to interview any clients, employees, subcontractors, or assignees of the Project Sponsor. Following such inspection or interviews, the City will deliver to the Project Sponsor a report of its findings. The Project Sponsor will rectify all deficiencies cited by the City within the period of time specified in the report, or provide the City with a reasonable justification for not correcting the deficiencies. The City will determine, in its sole and absolute discretion, whether or not the Project Sponsor's justification is acceptable. 6.7 Conflict of Interest. A. The Project Sponsor is aware of the conflict of interest laws of the City of Miami (Code of the City of Miami, Florida, Chapter 2, Article V), of Miami -Dade County, Florida (Code of Miami -Dade County, Florida, Section 2-11.1), and of the State of Florida (as set forth in Florida Statutes), and with the HOME Program conflict of interest rules (24 C.F.R. §92.356), all as amended, and agrees that it will fully comply in all respects with the terms thereof and any future amendments. B. The Project Sponsor covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City. The Project Sponsor further covenants that, in the performance of this Agreement, no person or entity having such Page 23 of 40 conflicting interest shall be utilized in respect to the Scope of Work or services provided hereunder. Any such conflict of interest(s) on the part of the Project Sponsor, its employees or associated persons or entities must be disclosed to the City. C. The Project Sponsor shall disclose any possible conflicts of interest or apparent improprieties of any party under or in connection with the Legal Requirements, including the standards for procurement. D. The Project Sponsor shall make any such disclosure to the City in writing and immediately upon the Project Sponsor's discovery of such possible conflict. The City's determination regarding the possible conflict of interest shall be binding on all parties. E. No employee, agent, consultant, elected official or appointed official of the City, exercising any functions or responsibilities in connection with the City's HOME Program or this Agreement, or who is in a position to participate in the decision -making process or gain inside information regarding HOME -assisted activities, has any personal financial interest, direct or indirect, in this Agreement, the proceeds hereunder, the Project or the Project Sponsor, either for themselves or for those with whom they have family or business ties, during their tenure or for one year thereafter. 6.8 Related Parties. The Project Sponsor shall report to the City the name, purpose for and any other relevant information in connection with any related -party transaction. The term "related party transaction" includes, but is not limited to, a transaction or relationship between the Project Sponsor and a for -profit or nonprofit subsidiary or affiliate organization, an organization with an overlapping board of directors, and an organization for which the Project Sponsor is responsible for appointing memberships. The Project Sponsor shall report this information to the City upon forming the relationship, or if already formed, shall report such relationship prior to or simultaneously with the execution of this Agreement. Any supplemental information shall be promptly reported to the City no later than in the next required Progress Report, as described above. 6.9 Publicity and Advertisements. The Project Sponsor shall ensure that all publicity and advertisements prepared and released by the Project Sponsor, such as pamphlets and news releases, related to activities funded by this Agreement, and all events carried out to publicize the accomplishments of any activities funded by this Agreement, recognize the City as one of its funding sources. 6.10 Procurement. The Project Sponsor shall make a positive effort to procure supplies, equipment, construction, or services to fulfill this Agreement from minority and women owned businesses, and to provide these sources the maximum feasible opportunity to compete for subcontracts to be performed pursuant to this Agreement. To the maximum extent feasible, these businesses shall be located in or owned by residents of the community development areas designated by the City. 6.11 Additional Funding. The Project Sponsor shall not procure any other financing in connection with the Project or the Property without the prior written consent of the City, other than those financings disclosed to the City in writing as of the date hereof, which, for avoidance of doubt, are provided for in Section 5.17 of this Agreement. Page 24 of 40 6.12 Reversion of Assets. The Project Sponsor shall return to the City upon the expiration or termination of this Agreement any HOME Funds on hand, any funds or accounts receivable attributable to the HOME Funds, and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the Project Sponsor by the City. Any funds not earned by the Project Sponsor prior to the expiration or termination of this Agreement, as described and provided for in OMB Circular No. A-122, shall be retained by the City. 6.13 Repayment of Funds Procedures. If, after notice and the expiration of any applicable cure period, for any reason during the Affordability Period any HOME Assisted Unit fails to comply with the Affordability requirements of 24 CFR Part 92, the Project Sponsor shall repay to the City all funds received by the Project Sponsor pursuant to this Agreement, and interest thereon as provided in the HOME Note. 6.14 Affirmative Marketing. The Project Sponsor shall comply with the affirmative marketing requirements and procedures provided on Exhibit "E" attached hereto and made a part hereof. Project Sponsor shall comply with the requirements of the affordable housing notice to City Officials in City of Miami Ordinance #13491. 6.15 Section 3 Clause. The Project Sponsor shall comply with the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended (12 U.S.C. 1701u): (A) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (Section 3.) The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by Section 3, shall to the greatest extent feasible, be directed to Very Low Income Households, particularly persons who are recipients of HUD assistance for housing. (B) The parties to this contract agree to comply with HUD's regulations in 24 CFR Part 75, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 75 regulations. (C) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or worker's representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to Page 25 of 40 (D) hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 75, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 75. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR Part 75 require employment opportunities to be directed, were not filed to circumvent the contractor's obligations under 24 CFR Part 75. (F) Noncompliance with HUD's regulations in 24 CFR Part 75 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. (G) With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self - Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with Section 7(b). 6.16 Signage, Acknowledgement, Publicity. During the Term of this Agreement, the Project Sponsor shall furnish signage identifying the Project and shall acknowledge the contribution of the City by incorporating the seal of the City and the names of the City commissioners and officials in all documents, literature, pamphlets, advertisements, and signage, permanent or otherwise in accordance with Section 6.9 hereof. All such acknowledgments shall be in a form acceptable to the City, as provided on Exhibit "I" attached hereto and made a part hereof. All publicity and advertisements prepared and released by the Project Sponsor related to the Project, such as pamphlets and news releases, and all events carried out to publicize the Page 26 of 40 Project, shall recognize the City as one of the Project's funding sources. 6.17 Costs Incurred By the City. Notwithstanding any other provision of this Agreement, the Project Sponsor understands and agrees that $50,000.00 of the HOME Funds were awarded to the Project for, and were used by the City to cover, costs incurred by the City on behalf of the Project. Such costs may include, but are not limited to, environmental advertising costs, recording fees, and project delivery. 6.18 Affirmative Action. The Project Sponsor shall not discriminate on the basis of race, color, national origin, sex, religion, age, sexual orientation, marital or family status or handicap/disability in connection with its performance under this Agreement or in connection with the occupancy of any HOME Assisted Unit. Age discrimination and discrimination against minor dependents are also not permitted. 6.19 Previously Funded City Projects. The Project Sponsor shall comply with: (1) all applicable reporting requirements relating to previously funded City projects which are under construction or in the Affordability Period, including OMB A-133, and (2) all applicable insurance requirements relating to such projects. 6.20 Compliance with Safety Precautions. The Project Sponsor shall allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of such laws, rules, regulations and ordinances. The Project Sponsor shall have no recourse against the City, its agents, or representatives for the occurrence, non- occurrence or result of such inspection(s), and shall obtain the affirmative acknowledgment of the Project Sponsor, for the benefit of the City, that the Project Sponsor shall have no recourse against the City, its agents, or representatives for the occurrence, non-occurrence or result of such inspection(s). Simultaneously with the submission of the first draw request to the City, the Project Sponsor shall contact the City's Risk Management Depaitinent Safety Unit in writing to coordinate such inspection(s). The Project Sponsor shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, the Project Sponsor shall take affirmative steps to ensure nondiscrimination in the employment of disabled persons. 6.21 Draw Requests. Each Request for Disbursement of hard costs must be signed by the Project Sponsor, the architect for the Project and the contractor, and each Request for Disbursement of soft costs must be signed by the Project Sponsor, as more fully set forth in the Disbursement Agreement. The City shall not fund any draw request in an amount that exceeds the City's initial contribution percentage of the entire development cost of the project. Five percent (5%) of each draw request will be retained until the City has received as part of Page 27 of 40 the Close-out of the Project, at the Project Sponsor's sole cost, a Final Cost Certification prepared by an independent certified public accountant, which must be acceptable to the City in both form and substance. 6.22 Insurance Proceeds. Notwithstanding anything to the contrary contained herein or in the other HOME Loan Documents, the Project Sponsor may make insurance proceeds available for the restoration and repair of the Property and the Project if all of the following conditions are met: (i) the Project Sponsor is not in breach or default of any provision of the Mortgage or any other loan document between the Project Sponsor and Lender; (ii) the Project Sponsor determines that there will be sufficient funds, through insurance proceeds and contributions by the Project Sponsor, to (a) restore and repair the Property and the Project to a condition as close as reasonably possible to what previously existed, and (b) meet all operating costs and other expenses, payments for reserves and loan repayment obligations relating to the Property and the Project until completion of the restoration and repair of the Property and/or the Project to a condition as close as reasonably possible to what previously existed; (iii) the Project Sponsor determines that the rental income of the Project, after restoration and repair to a condition as close as reasonably possible to what previously existed, will be sufficient to meet all operating costs and other expenses, payments for reserves and loan repayment obligations relating to the Project, and (iv) the Project Sponsor has received the City's written concurrence with such determination. 6.23 Condemnation Proceeds. Notwithstanding anything to the contrary contained herein or in the other HOME Loan Documents, the Project Sponsor may make proceeds of condemnation available for the restoration and repair of the Property and the Project if all of the following conditions are met: (i) the Project Sponsor is not in breach or default of any provision of the Mortgage or any other HOME Loan Document; (ii) the Project Sponsor determines that there will be sufficient funds, through condemnation proceeds and contributions by the Project Sponsor, to (a) restore and repair the Property and the Project to a condition as close as reasonably possible to what previously existed, due consideration given to the portion of the Property and the Project taken, and, (b) meet all operating costs and other expenses, payments for reserves and loan repayment obligations relating to the Project until completion of the restoration and repair of the Property and the Project to a condition as close as reasonably possible to what previously existed, due consideration given to the portion of the Property and the Project taken; and (iii) the Project Sponsor determines that the rental income of the Project, after restoration and repair of the Property and the Project to a condition as close as reasonably possible to what previously existed, due consideration given to the portion of the Property and the Project taken, will be sufficient to meet all operating costs and other expenses, payments for reserves and loan repayment obligations relating to the Project, and (iv) the Project Sponsor has received the City's written concurrence with such determination. ARTICLE VII DEFAULT 7.1 The happening of any one or more of the following events shall constitute an Event of Default: Page 28 of 40 (a) Failure of any of the HOME Assisted Units to remain Affordable at any time during the Affordability Period. (b) If any term, condition or representation contained in this Agreement or any of the other HOME Loan Documents is materially untrue, substantially inaccurate or incomplete when made, or, if there is a material misrepresentation of fact or fraud contained in any document(s) submitted in support of this Agreement. (c) The substantial discontinuance of the construction of the Project for a period of fourteen (14) days which discontinuance is, in the sole determination of the City, without satisfactory cause. (d) Except as set forth in each of Sections 5.6, 5.17, and 6.5 of this Agreement, the sale, assignment, pledge, transfer, hypothecation or other encumbrance or disposition (except due to repair or replacement for normal wear and tear, and as a result of casualty or condemnation in accordance with this Agreement) of any proprietary or beneficial interest in the Project Sponsor's estate in the Property, or any change in operating control of the Project Sponsor, without the prior approval of the City's HCLC or the City Commission, as appropriate. (e) In the event that the City reasonably determines that the Project is not being constructed in a good and workmanlike manner in accordance with the Scope of Work, or that the Project Sponsor is failing to comply promptly with any requirement or notice of violation of law issued by or filed by the City or any depai tnuent of any governmental authority having jurisdiction over the Project Sponsor or the Property. (f) (g) (h) (i) Failure by the Project Sponsor to comply with any material term, covenant, obligation, or provision of this Agreement or any of the HOME Loan Documents, or the occurrence of an event of default under any of the other HOME Loan Documents. Any change in zoning requirements or zoning classification of the Property initiated by the Project Sponsor, which in the City's sole discretion would materially interfere with the completion of construction of the Project or the ultimate operation of the Project as contemplated herein. In the event that the City reasonably determines that there exists an event of default under and pursuant to the terns of any other agreement or obligation of any kind or nature whatsoever of the Project Sponsor to the City, direct or contingent, whether now or hereafter due, existing, created or arising, which default continues beyond all applicable notice and cure periods. Project Sponsor declares bankruptcy and/or becomes insolvent, which Page 29 of 40 shall result in immediate acceleration of the Loan's repayment in full. (j) City and Project Sponsor acknowledge that a senior mortgage default, which constitutes a "Event of Default" under such senior mortgage unless waived by the Senior Lender, constitutes and Event of Default under this Loan Agreement and the other Loan Documents, In such an event, City may pursue any and all of its remedies. ARTICLE VIII REMEDIES 8.1 Upon the occurrence of any Event of Default, the City shall have the absolute right to refuse to disburse any undisbursed portion of the Loan. The City shall provide written notice of the occurrence of an Event of Default to the Project Sponsor, after which the Project Sponsor shall have thirty (30) days to cure said default (except for the events described in Section 7.1 (b) and (d) above for which the aforementioned cure period shall not apply). In the event a default which is permitted to be cured cannot practicably be cured within thirty (30) days, the Project Sponsor shall have such additional time as may be required to effect a cure, so long as (a) the cure is commenced within thirty (30) days and is diligently prosecuted and (b) the lack of a cure during such continuing cure period has no material adverse effect on the Project. The City agrees to accept a cure of any default committed by the Project Sponsor, which cure is tendered or effected by the Investor, as if such sure had been tendered or effected by the Project Sponsor. If an Event of Default shall continue uncured for a period of thirty (30) consecutive days following written notice thereof to the Project Sponsor (except for the events described in Section (b) and (d) above for which the aforementioned cure period shall not apply and except for cures which are continuing as provided in the preceding paragraph), and subject to the provisions of the last paragraph of this Section, the City shall have the absolute right, at its option and election and in its sole discretion to: (a) Specific Performance. Institute appropriate proceedings to specifically enforce performance of the terms and conditions of this Agreement; (b) Recapture of HOME Funds. Demand that the Project Sponsor reimburse the City for the HOME Funds disbursed to the Project Sponsor pursuant to this Agreement. The Project Sponsor shall reimburse City in the amount of the HOME Funds disbursed to the Project Sponsor pursuant to this Agreement, subject to any limitations contained in the HOME Note and/or Mortgage concerning Borrower's or Project Sponsor's liability for amounts due under the HOME Loan Documents. (c) Other Remedies. Exercise any other right, privilege or remedy available to the City as may be provided by applicable law, or in any of the other HOME Documents. Page 30 of 40 It is understood and agreed that the occurrence of an event of default under Section 7.1 (b) or (d) shall immediately entitle the City to exercise any of the above described remedies without the need to give the Project Sponsor notice thereof or the opportunity to cure. The rights and remedies of the City hereunder shall be cumulative and not mutually exclusive, and the City may resort to any one or more or all of said remedies without exclusion of any other. No party other than the City, whether the Project Sponsor or a material man, laborer, subcontractor or supplier, shall have any interest in the HOME Funds withheld because of a default hereunder, and shall not have any right to garnish or require or compel that payment thereof be applied toward the discharge or satisfaction of any claim or lien which any of them may have. Notwithstanding the foregoing, in the event of an Event of Default under Section 7.1(j) above, which default relates to the Permitted Senior Financing, but does not otherwise constitute a default under the Loan Documents, such Event of Default shall be waived by the City in the event that the Senior Lender waives such default under the Permitted Senior Financing, but only upon submission to the City of such waiver by Senior Lender. 8.2 In addition to any other remedies provided for herein or in any of the other Loan Documents, upon the occurrence and during the continuation of an Event of Default: (a) All sums outstanding under the Note shall bear interest at the highest rate allowable by law from the date of disbursement, without notice to the Project Sponsor or any guarantor or endorser of the Note and without any affirmative action or declaration on the part of the City; (b) (c) The Restrictive Covenant shall remain as a restriction on the Property throughout the Affordability Period; and The Project Sponsor, Borrower, Project developer, managing partner(s) of the Project Sponsor, and/or other individuals, principals and/or other entities as determined by the City, will be debarred from receiving any City funding for a period of five (5) years. ARTICLE IX INDEMNIFICATION 9.1 The Project Sponsor shall indemnify, hold harmless, and defend the City, its officers, agents, directors, and/or employees, from liabilities, damages, claims, suits, losses, judgments, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness, negligent act or omission, or intentional wrongful misconduct of Project Sponsor and persons employed or utilized by Project Sponsor in the performance of this Agreement. Project Sponsor shall, further, hold the City, its officials and/or employees, harmless for, and defend the City, its officials and/or employees against, any civil actions, statutory or similar claims, injuries or damages arising or resulting from the permitted work, even if it is alleged that the City, its officials and/or employees were negligent. These indemnifications shall survive the term of this Agreement. In the event that any action or Page 31 of 40 proceeding is brought against the City by reason of any such claim or demand, the Project Sponsor shall, upon written notice from the City, resist and defend such action or proceeding by counsel satisfactory to the City. The Project Sponsor expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Project Sponsor shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, agents and instrumentalities as herein provided. The indemnification provided above shall obligate the Project Sponsor to defend, at its own expense, to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at the City's option, any and all claims of liability and all suits and actions of every name and description which may be brought against the City whether performed by the Project Sponsor, or persons employed or utilized by Project Sponsor. This indemnity will survive the cancellation or expiration of the Agreement. This indemnity will be interpreted under the laws of the State of Florida, including without limitation and interpretation, which conforms to the limitations of §725.06 and/or §725.08, Florida Statutes, as applicable. The Project Sponsor shall require all Sub -contractor agreements, if applicable, to include a provision that they will indemnify the City. The Project Sponsor agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Project Sponsor in which the City participated either through review or concurrence of the Project Sponsor's actions. In reviewing, approving or rejecting any submissions by the Project Sponsor or other acts of the Project Sponsor, the City in no way assumes or shares any responsibility or liability of the Project Sponsor or Sub -contractor under this Agreement. ARTICLE X TERMINATION The Project Sponsor acknowledges that this Agreement may be terminated if the Project Sponsor materially fails to comply with the terms contained herein. 10.1 Termination Because of Lack of Funds. In the event the City does not receive from its funding source funds to finance this Agreement, or in the event that the City's funding source de -obligates the funds allocated to finance this Agreement, the City may terminate this Agreement upon not less than twenty-four (24) hours prior notice in writing to the Project Sponsor. Said notice shall be delivered by certified mail, return receipt requested, or by in person delivery with proof of delivery. The City shall determine, in its sole and absolute discretion, whether or not funds are available. 10.2 Termination for Breach. The City may terminate this Agreement, in whole or in part, in the event the City reasonably determines that the Project Sponsor is not making (or causing to be made) sufficient progress with regard to the construction of the HOME Assisted Units (thereby endangering its ultimate performance under this Agreement) or is not complying with any material term or provision of this Agreement, following notice and the expiration of the applicable cure period(s). Page 32 of 40 The City may terminate this Agreement, in whole or in part, in the event that the City reasonably determines that there exists an event of default under and pursuant to the terms of any other agreement or obligation of any kind or nature whatsoever of the Project Sponsor to the City, direct or contingent, whether now or hereafter due, existing, created or arising, which event of default has continued beyond any applicable cure period. 10.3 Upon the occurrence of an Event of Default and the expiration of any cure period (in those circumstances for which a cure period is otherwise provided in this Agreement), and unless the Project Sponsor's breach is waived by the City in writing, the City may, by written notice to the Project Sponsor, terminate this Agreement upon not less than twenty-four (24) hours prior written notice. Said notice shall be delivered by certified mail, return receipt requested, or by in person delivery with proof of delivery. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement. The provisions hereof are not intended to be, and shall not be, construed to limit the City's right to legal or equitable remedies. ARTICLE XI SUSPENSION 11.1 The City may, for reasonable cause, suspend the Project Sponsor's authority to obligate funds under this Agreement and/or withhold payments to the Project Sponsor, pending necessary corrective action by the Project Sponsor, and may include: (a) Ineffective or improper use of the HOME Funds by the Project Sponsor; (b) Failure of the Project Sponsor to comply with any material term or provision of this Agreement; (c) Failure of the Project Sponsor to submit any documents required by this Agreement; or (d) The Project Sponsor's submittal of incorrect or substantially incomplete documents. 112 The determinations and actions described in paragraph 11.1 above may be applied to all or any part of the activities funded pursuant to this Agreement. 113 The City will notify the Project Sponsor in writing of the type of action taken pursuant to this Article, by certified mail, return receipt requested, or by in person delivery with proof of delivery. The notification will include the reason(s) for such action, any conditions relating to the action, and the necessary corrective action(s). ARTICLE XII MISCELLANEOUS 12.1 Enforcement Methods. As a means of enforcing compliance with the HOME Page 33 of 40 Program, the City may utilize any enforcement measures it deems necessary. 122 Renegotiation or Modification. Modification of provisions of this Agreement shall be valid only when in writing and signed by the parties hereto. The parties agree to modify this Agreement if the City determines, in its sole and absolute discretion, that federal, state, and/or local governmental revisions of any applicable laws or regulations, or increases or decreases in budget allocations, make changes to this Agreement necessary. The City shall be the final authority in determining whether or not funds for this Agreement are available due to federal, state and/or local governmental revisions of any applicable laws or regulations, or increases or decreases in budget allocations. 123 Right to Waive. The City may, for good and sufficient cause, as determined by the City in its sole and absolute discretion, waive provisions of this Agreement or seek to obtain such waiver from an appropriate authority. Waiver requests from the Project Sponsor shall be in writing. A waiver shall not be construed to be a modification of this Agreement. 12.4 Budget and HOME Eligibility Activity Title Revisions. Revisions to the Budget shall be made in writing, and approved in writing by the City; however, such revisions shall not necessitate an amendment hereto unless the amount of the HOME Loan to be granted hereunder is changed, or unless otherwise required by the City. A revision to the HOME eligibility activity titles under which this Agreement's objectives are classified shall not require an amendment hereto. 12.5 Disputes. In the event an unresolved dispute exists between the Project Sponsor and the City, the City shall refer the issue, including the views of all interested parties and the recommendation of the City, to the City Manager, his designee, or such other official of the City who shall be authorized to exercise the authority of the City Manager in this regard (the "City Manager") for determination. The City Manager will issue a determination within thirty (30) calendar days of receipt of a written request for resolution of the dispute and so advise the City and the Project Sponsor. In the event additional time is necessary, the City Manager will notify the interested parties within the thirty (30) day period that additional time is necessary. The Project Sponsor agrees that the City Manager's determination shall be final and binding on all parties, subject only to judicial review. 12.6 Headings. The article and paragraph headings in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 12.7 Proceedings. The Agreement shall be construed in accordance with the laws of the State of Florida and any proceedings arising between the parties in any manner pertaining or relating to this Agreement shall, to the extent permitted by law, be held in Miami -Dade County, Florida. 12.8 Notices and Contact. All notices under this Agreement shall be in writing and addressed as follows: To City: City of Miami Page 34 of 40 Depaitluent of Housing and Community Development One Flagler Building 14 Northeast 1st Avenue, Second Floor Miami, Florida 33132 Attn: George Mensah, Director With Copy To: Victoria Mendez City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 To Project Sponsor: The Gallery at West Brickell, LLC 2850 Tigertail Ave, Ste 800 Miami, FL 33133 Attn: Tony Del Pozzo With Copy to: Brian J. McDonough Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, FL 33130 Except as otherwise provided in this Agreement, notice shall be deemed given upon hand delivery or five (5) business days after depositing the same with the U.S. Postal Service. The address or designated representative of the parties may be changed by notice given in accordance with this section. The Project Sponsor shall at any time and from time to time upon the request of the City, at Project Sponsor's sole cost and expense, execute, acknowledge and deliver such further notices and other documents and perform such other acts as may, in the opinion of the City, be necessary, desirable or proper to carry out more effectively the purposes of this Agreement and the other Loan Documents. 12.9 Conflicts with Applicable Laws. If any provision of this Agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified, or to be deleted if modification is inappropriate, to cause the provision to be consistent with the law or regulation. However, the obligations under this Agreement, as modified, shall continue and all other provisions of this Agreement shall remain in full force and effect. 12.10 Entire Agreement. This Agreement and its Exhibits and Schedules described as follows contain all the terms and conditions of the Agreement between the parties: Exhibit "A" Legal Description Exhibit "B" Scope of Work /Project Schedule Exhibit "C" Budget Page 35 of 40 Exhibit "D" Exhibit "E" Exhibit "F" Exhibit "G" Exhibit "H" Exhibit "I" Exhibit "J" Schedule A Schedule B Form of Disbursement Agreement Affirmative Marketing Procedures and Responsibilities Form of Mortgage and Security Agreement Form of Declaration of Restrictive Covenants Form of Rent Regulatory Agreement Signage Requirements Additional Insurance Requirements Permitted Senior Financing Permitted Junior Financing 12.11 WAIVER OF JURY TRIAL. NEITHER THE PROJECT SPONSOR NOR ITS SUBCONTRACTOR(S), NOR ANY OTHER PERSON LIABLE FOR THE RESPONSIBILITIES, OBLIGATIONS, SERVICES AND REPRESENTATIONS HEREIN, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE PROJECT SPONSOR, THE PROJECT'S SUBCONTRACTORS OR ANY OTHER PERSON OR ENTITY SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ENTITIES, OR ANY OF THEM. NEITHER THE PROJECT SPONSOR NOR THE PROJECT'S SUBCONTRACTORS, NOR ANY OTHER PERSON OR ENTITY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THE PROVISIONS HEREOF SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER PARTY TO THIS AGREEMENT HAS IN ANY MANNER AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES. 12.12 HCLC Award Memoranda. The award memoranda and decisions of the HCLC dated July 30, 2021, July 19, 2022, and September 29, 2022 (collectively, the "Award Memoranda") are hereby incorporated by reference. To the extent of any conflict between the Award Memoranda and the HOME Loan Documents and when interpreting the intent of the HOME Loan Documents, whichever provision is strictest will control. 12.13 Governing Law and Venue. This Agreement shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Agreement must be brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami -Dade County is not convenient. 12.14 OMITTED 12.15 Increase in Project Costs. In the event that the Project's costs increase by ten percent (10%) or more of the Budget that is attached as Exhibit "C", and Project Sponsor is Page 36 of 40 unable to secure the requisite funding to cover the additional expense within 60 days before the Project's construction commences, then the City is permitted to recommend to HCLC that the HOME Funds should be de -obligated for this Project. 12.16 Tenant Lottery. The selection of eligible tenants to occupy the HOME Assisted Units shall be from the results of a tenant lottery, which shall be conducted with a representative of the City of Miami present. In addition, the Project Sponsor and the HOME Assisted Units shall comply with the requirements of the City of Miami Ordinance #13645 regarding Resident Preference. 12.17 Costs, Including Attorney's Fees. The Project Sponsor agrees to pay when due for which an invoice is provided, all reasonable costs and expenses in connection with the administration or monitoring of compliance with this Agreement and all related documents and any other documents which may be delivered in connection with this Agreement or the transactions contemplated hereby, including, without limitation, the reasonable fees and out of pocket expenses of the City and of counsel and any agents or consultants for the City, with respect thereto, in connection with the administration or monitoring of this Agreement and such other documents as may be delivered in connection herewith. In addition, the Project Sponsor shall pay any and all stamps and other taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement and such other documents as may be delivered in connection herewith, and agrees to save the City harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees. In the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Agreement, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. 12.18 The Borrower has represented that no Florida documentary stamps or intangible taxes are required to paid on the Note or the Mortgage. The Borrower hereby agrees to indemnify and to defend and hold the Lender and all of its affiliates, successors, and assigns harmless against any and all documentary stamp taxes and intangible taxes, if any, imposed assessed or claimed as a result of or arising out of: (i) Lender's acceptance and/or ownership of the Note or Mortgage (or any other loan document pertaining to the loan referenced to therein); or (ii) the execution or delivery of the Note and the Mortgage (or any other loan document pertaining to the loan referred to therein) (it being understood that any reference herein to documentary stamp taxes and intangible taxes include any and all penalties, interest and attorneys' fees incurred by the Lender in connection therewith), and the Borrower agrees to pay any and all such documentary stamp taxes or intangible taxes upon demand. In the event of a failure by the Borrower to pay such documentary stamp taxes and intangible taxes upon demand and should the Lender elect to pay the same, all such charges shall be secured by the lien of the Note and the Mortgage and shall bear interest at the Default Rate, as provided in the Note, from the date of advance by the Lender until paid by the Borrower. The provisions of this Section shall survive repayment of the Notes and the satisfaction of the Note and Mortgage so long as a claim may be asserted by the State of Florida or any of its agencies. 12.19 The Borrower's obligations pursuant to this Agreement shall be binding upon Page 37 of 40 and inure to the respective heirs, personal and legal representatives, trustees and successors and assigns of the Parties hereto, including each and every such Party's past and present parent, subsidiary, affiliate or predecessor entities, any and all entities by which or under a name by which any Party has been known or has done business, and any and all of his, hers, its and/or their respective past and present officers, commissioners, directors, principals, trustees, administrators, agents, attorneys, accountants, insurers, reinsurers, servants, employees, shareholders, members, managers, partners, heirs, and representatives. 1220 Counterparts and Electronic Signatures. 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 electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 1221 The parties hereto agree that the Loan will be non recourse except that the exceptions to non -recourse liability applicable to any Permitted Senior Financing shall also apply to this Loan. [Signature Pages to Follow] Page 38 of 40 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. PROJECT SPONSOR: 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: 1.9011 WITNESSES Print Name: I- .rr;Sc^ i?E, tL#1\� Print Name: Lv ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE Print Name: Tony Del Pozzo Title: Vice President The foregoing instrument was a owledged bef r me by means ofTI sical presence or O online notarization, this 36 ' day of ,12022 by Tony Del Pozzo as Vice President of The Gallery at West Brickell Manager, LLC, a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liability company. He is personally known to me or has produced as identification. (NOTARY PUBLIC SEAL) °`APY PGe� VANESSA PILOTO *' *' MY COMMISSION # NH 213353 EXPIRES: February 18, 2026 i)crt Signature of Person Taking Acknowledgment (Printed, Typed, or Stamped Name of Notaibl& 1 1 k Page 39 of 40 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. ATTEST: odd Hann Date: APPROVD AS AND REQUIRE By/ Alin -Marie S Director of ► SURANCE anagement APPROVED AS TO DEPARTMENTAL REQUIREMENTS: CITY: CITY OF MIA State of Florida By: a municipal corporation of the Arthur NoriegV, City Manager APPROVED AS TO FORM CORRECTNESS: By: \ \ Victor Mendez City Attorney 6FP' epartment of Housing and elopment Page 40 of 40 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY Parcel 1- Leasehold 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. EXHIBIT "B" SCOPE OF WORK /PROJECT SCHEDULE WORK SCOPE / DEVELOPMENT SCHEDULE The Gallery at West Brickell The Gallery at West Brickell is new construction development consisting of a 29-story high-rise building located at 201 SW 10 Street Miami, FL 33130. The project will have a total of Four Hundred Sixty -Five (465) units that will consist of Fifty -Four (54) studio/one- bathroom units; Two Hundred Forty -Six (246) one-bedroom/one-bathroom units; One Hundred Thirty -Seven (137) two-bedroom/two-bathroom units; and twenty-eight (28) three-bedroom/two-bathroom units. Ninety -Three (93) units will be HOME -assisted units serving Public Housing residents (RAD/Section 18 Blend Program). Of the remaining Three Hundred Seventy -Two (372), non -city assisted dwellings; Seventy (70) units will be set aside for households earning at/or less than 140% of Area Median Income ("AMI"), and Three Hundred -Seven (307) units will be unrestricted to income levels ("Market Rate"). In addition, the project will include a 12-story structured parking garage for the tenants. Estimated Date Building Permitting (Permit Ready) March 2022 Start of Construction September 2022 Construction Completion September 2025 Commence Affirmative Marketing October2025 Initial Lease -Up (Leasing Activities Commence) October 2025 Stabilized Occupancy September 2026 EXHIBIT "C" BUDGET APPLICANT: The Gallery at West Brickell, LLC CITY OF MIAMI DEPARTMENT OF COMMUNITY DEVELOPMENT SOURCES AND USES: NEW CONSTRUCTION/REHABILITATION AFFORDABLE RENTAL HOUSING PROJECT NAME: The Gallery at West Brickell Evidence of source must be included Financing Sources: Specify Name Lien Poistion: First Mortgage Second Mortgage Third Mortgage Fourth Mortgage Fifth Mortgage - - - Total Project CHASE (Tax -Exempt) CHASE (Taxable) City of Miami HOME Miami -Dade County HOME Miami -Dade County Surtax School Board Contribution (Premenant) Tax Credit Equity Investment Deferred Developer Fee Land Acquisition $ 1,627,500 S - $ - $ - $ - $ - $ - $ 1,627,500 $ - Hard Costs $ 86,673,537 $ 80,223,537 $ - $ 2,950,000 $ 2,000,000 $ 1,500,000 $ - $ - $ - Construction ( incl. Site work) Parking Garage $ 14,769,000 $ 11,648,100 $ - $ - $ - $ - $ - $ 3,120,900 $ - Construction Contingency $ 5,782,225 $ 4,773,985 $ 1,008,240 $ - $ - $ - $ - $ - $ - Construction Supervision $ 14,201,955 $ - $ 14,201,955 $ - $ - $ - $ - $ - $ - Owner lD Upgrade Package $ 1,725,000 $ - $ 1,725,000 $ - $ - $ - $ - $ - $ - Total Hard Costs S 123,151,717 $ 96,645,622 $ 16,935,195 $ 2,950,000 $ 2,000,000 S 1,500,000 $ - $ 3,120,900 $ - Soft Costs $ 2,128,200 $ - $ - $ - $ - $ - $ - $ 2,128,200 $ - Architect& Engineering Fees Impact & School Fees / AIPP $ 3,863,256 $ - $ 3,863,256 $ - $ - $ - $ - $ - $ - Permits/Fees $ 508,306 $ 508,306 $ - $ - $ - $ - $ - - $ - $ - Legal Fees $ 590,000 $ - $ 590,000 $ - $ - $ - $ - $ - $ - Soils / Environmental / Utility Fees $ 1,205,832 $ - $ - $ - $ - $ - $ - $ 1,205,832 $ - Appraisal/Surveys/PCR $ 56,475 $ - $ - $ - $ - $ - $ - $ 56,475 $ - Insurance: Construction Period / P&P Bonds $ 3,722,259 $ 2,612,594 $ 664,898 $ - $ - $ - $ - $ 444,767 $ - Marketing / Advertising Fees $ 250,000 $ - $ 250,000 $ - $ - $ - $ - $ - $ - Loan Closing /Financing Fees $ 5,959,508 $ - $ 5,959,508 $ - $ - $ - $ - $ - $ - Interest/Reserves&Escrows $ 13,894,427 $ - $ 13,894,427 $ - $ - $ - $ - $ - $ - Title Insurance $ 507,213 $ - $ - $ - $ - $ - $ - $ 507,213 $ - Temporary Parking Relocation Fees $ 759,419 $ - $ - $ - $ - $ - $ - $ 759,419 $ - FF & E / Amenities Package $ 1,233,478 $ 1,233,478 $ - $ - $ - $ - $ - $ - $ - For Use by City: City incurred costs $ 50,000 $ - $ - $ 50,000 $ - $ - $ - $ - $ - Other Soft Costs $ 1,243,526 $ - $ 1,243,526 $ - $ - $ - $ - $ - $ - Developer Fees & Overhead $ 28,446,744 $ - $ - $ - $ - $ - $ - $ 559,961 $ 27,886,783 Soft Cost Contingency $ 599,191 $ - $ 599,191 $ - $ - $ - $ - $ - $ - Total Soft Costs $ 65,017,832 $ 4,354,378 $ 27,064,805 $ 50,000 $ - $ - $ - $ 5,661,866 $ 27,886,783 Total Project Cost $ 189,797,049 $ 101,000,000 $ 44,000,000 $ 3,000,000 $ 2,000,000 $ 1,500,000 $ - 0 10,410,266 $ 27,886,783 EXHIBIT "D" FORM OF DISBURSEMENT AGREEMENT 0 DISBURSEMENT AGREEMENT FOR THE GALLERY AT WEST BRICKELL, LLC This Disbursement Agreement for HOME Investment Partnerships Program ("HOME") funds ("Disbursement Agreement") is made as of this day of , 2022 by and between THE GALLERY AT WEST BRICKELL, LLC, a Florida_ limited liability company ("Project Sponsor"), and the CITY OF MIAMI, a municipal corporation of the State of Florida ("City'). RECITALS WHEREAS, the Project Sponsor is developing a project known as The Gallery at West Brickell ("Project"), that will increase -the supply of rental housing units for Very Low Income Households in the Brickell neighborhood of Miami, Florida; and WHEREAS, on July 30, 2021, the City's Housing and Commercial Loan Committee ("HCLC") approved an allocation of HOME Investment Partnerships Program funds in the amount of three million dollars and no cents ($3,000,000.00) to the Project Sponsor for the Project's hard and soft construction costs ("HOME Funds"); and WHEREAS, the funding commitment of the City to the Project Sponsor for the HOME Funds is more fully described in that certain HOME Loan Agreement of even date herewith (the "HOME Agreement"); and WHEREAS, the Project Sponsor and the City desire to establish the mechanism whereby the Project Sponsor will apply to receive the HOME Funds; NOW, THEREFORE, for and in consideration of the Project Sponsor's construction and development of the Project and the reciprocal agreements set forth herein, the Project Sponsor and the City agree as follows: ARTICLE I DISBURSEMENT PROCEDURE c•, 1.1 The HOME Agreement establishes the conditions to the City's obligation to loan the HOME Funds to the Project Sponsor. The Project Sponsor may not request disbursement of funds pursuant to this Disbursement Agreement until such funds are needed for the reimbursement of eligible costs. Provided the City is obligated to disburse the HOME Funds pursuant to the HOME Agreement, the City will disburse such funds in accordance with this Article I. 1.2 The Project Sponsor shall submit draw requests for the HOME Funds, which draw requests will be submitted not more frequently than one (1) time per month. The City shall not fund any draw request in an amount that exceeds the City's initial contribution percentage of the entire development cost of the Project. The Project Sponsor will submit or cause to be submitted the following documentation to the City: (a) Hard Costs: (i) A written request for disbursement, in a form acceptable to the City ("Request for Disbursement"), setting forth such details concerning construction of the Project as the City shall require, including: the amount paid to date to the general contractor constructing Page 1 of 6 the Project ("Contractor") and pursuant , to the contract for the construction of the Project between the Project Sponsor and the Contractor ("Construction Contract"); the amounts, if any, paid directly by the Project Sponsor to subcontractors of the Contractor and material men; the amount then currently payable to the Contractor, broken down by trades; the amounts paid on account of the Contractor's construction fee; and the balance of the construction costs which will remain unpaid after the payment of the amount currently payable. (ii) Any Request for Disbursement must be submitted to the City by no later than the thirtieth (30th) day of each month. Each Request for Disbursement must be signed by the Project Sponsor, the architect for the Project and the Contractor. (iii) Applications for receiving HOME Funds for reimbursement of hard costs will include a memorandum of advance and such architectural documents as the City may require. The City Inspector, as described in Section 1.3 hereof ("City Inspector"), shall be required to certify with each draw request: the amount of work on the Project that has been completed; the good and acceptable workmanship of the Contractor and its subcontractors; compliance with approved final plans and specifications of the Project; and such other matters as the City may require. Lien waivers/releases shall be submitted to the City Inspector for review and approval before each disbursement. If the City requires that its title insurance policy be updated, the Project Sponsor shall also submit to the title insurance company all lien waivers/releases in connection with each proposed draw. All costs associated with the title insurance company updating the title insurance policy shall be paid by the Project Sponsor. (b) Soft Costs: (i) A Request for Disbursement, in a form acceptable to the City, together with: (a) original invoices of those costs for which the Project Sponsor is requesting disbursement (If 50% or less of a soft cost is being requested from the City, a copy of the invoice can accompany the Request for Disbursement.), and (b) copies of the Project Sponsor's checks in payment of each soft cost for which disbursement is being requested. (ii) Within thirty (30) days of the date of each Request for Disbursement, the Project Sponsor shall submit to the City copies of its cancelled checks confirming final payment of each cost included in such Request for Disbursement. (iii) Each Request for Disbursement of soft costs must be signed by the Project Sponsor. (c) Such other information and documents as the City may require. (d) Each Request for Disbursement shall constitute a representation and certification by the Project Sponsor and the Contractor to the City that: (i) The materials have been physically incorporated into the Project, free of liens and security interests, and that the construction of the Project to date has been performed substantially in accordance with the drawings and specifications and in a first- class workmanlike manner; Page 2 of 6 (ii) All governmental licenses and permits required by the Project as then completed have been obtained and are available for inspection by the City; (iii) The Project as then completed does not violate any law, ordinance, rule, regulation, or order or decree of any court or governmental authority; and (iv) No Event of Default has occurred and is continuing, and there is no continuing default -under the Construction Contract. (v) The Project Sponsor, the Contractor and each subcontractor has complied with all Federal, state and local laws and regulations relating to labor standards and with HUD Handbook 1344.1. (vi) Such other information and documents as the City may reasonably require. 1.3 The City Inspector will review the work that is incorporated into the Project and for which each Request for Disbursement of the HOME Funds is submitted. The City Inspector will review and approve the final plans and specifications for the Project and will review and approve the draw requests based on the percentage of work completed. The City Inspector's reviews, approvals, and conclusions shall be for the sole benefit of the City. All construction change orders must receive the prior written approval of the City Inspector. Change orders that have not received the prior written approval of the City Inspector shall not be approved for payment/ reimbursement by the City. 1.4 Within ten (10) working days of its receipt of a Request for Disbursement delivered pursuant to Section 1.2 hereof and without attempting to verify the completeness of same, the City will notify the City Inspector of the need to inspect the progress of construction work at the Project (the "Notification") and shall forward to the City Inspector the Request for Disbursement that has been delivered by the Project Sponsor. 1.5 The City Inspector shall complete its inspection and submit its report to the City within five (5) working days of receipt of the Notification. 1.6 If the City finds the materials submitted by the Project Sponsor and the report of inspection by the City Inspector to be satisfactory to the City and in accordance with the HOME Agreement, the City shall fund to the Project Sponsor the sum requested by the Project Sponsor or such lower sum as the City deems appropriate. 1.7 The City shall fund disbursements of the HOME Funds by no later than fourteen (14) working days after it has received both the Request For Disbursement, in the form required by Section 1.2 hereof, and the inspection report of the City Inspector, in the form required by Sections 1.2 and 1.3 hereof, provided that all necessary documentation is complete and correct. 1.8 The City shall retain five percent (5%) of the HOME Funds allocated to the Project Sponsor until it has received confirmation that the project has issued a Certificate of Occupancy, and at the Project Sponsor's sole cost, a Final Cost Certification prepared by an independent certified public accountant, both in form and substance acceptable to the City. 1.9 The City reserves the right to refuse to fund any disbursement request(s) in the event that the City determines that the Project and/or the Project Sponsor are not in compliance with any local, state or federal law or requirement. Page 3 of 6 1.10 Disbursements for other than hard costs, if permitted pursuant to the HOME Agreement, shall be made in accordance with the City of Miami Department of Housing and Community Development Disbursement of Funds Checklist. ARTICLE II MISCELLANEOUS 2.1 This Agreement may only be amended in writing by all the parties hereto. 2.2 This Disbursement Agreement, the HOME Agreement and the other documents executed by the parties in connection therewith constitute the entire agreement between the parties hereto and no other agreements or representations, unless incorporated in this Disbursement Agreement, shall be binding upon any of the parties hereto. 2.3 All capitalized terms not defined herein shall have the meanings provided in the HOME Agreement. 2.4 In the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Disbursement Agreement, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. 2.5 This Disbursement 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 Disbursement Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Disbursement 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 electronic signature agrees to promptly execute and deliver to the other parties an original signed Disbursement Agreement upon request. Page 4 of 6 [Signatures on the Following Page] IN WITNESS WHEREOF, this Disbursement Agreement has been executed by the Project Sponsor and the City on the date first above written. WITNESSES: Print Name: Vic.rtisOn WEr3641 Print Name: L„l' l r iv►tinir STATE OF FLORIDA } COUNTY OF MIAMI-DADE } SS: PROJECT SPONSOR: 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: Print Name: Tony Del Pozzo Title: Vice President Date: ACKNOWLEDGMENT The foregoing ignt was ac owled ed Wore me by means of [la'physical presence or E online notarization this day of cSf , 2022 by Tony Del Pozzo, as Vice President of The Gallery at West Brickell Manager, LLC, a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liability company, who is personally known to me or has produced as identification. - VANESSA PILOTO *- MY COMMISSION # NH 293353 ;,F^oQ EXPIRES: February 18, 2026 , OF FV.• .. ... r.... - kikvA.0,P1,11) Print Name: vkA.o &so r( o46 Notary Public, State of Florida at large Page 5 of 6 IN WITNESS WHEREOF, this Disbursement Agreement has been executed by the Project Sponsor and the City on the date first above written. ATTEST: odd B. Hannon City Clerkp Date: 1 %/010 APPROVED AS TO FORM AND CORRECTNESS: Victoria endez City Attorney CITY: City of Miami, a municipal corporation of the State of Flo • •'a Bv: Arthur No ga V City Manager #10797005 v2 Page 6 of 6 EXHIBIT "E" AFFIRMATIVE MARKETING PROCEDURES AND RESPONSIBILITIES Note to all applicants/respondents: This form was developed with Nuance, the official HUD software for the creation of HUD forms. HUD has made available instructions for downloading a free installation of a Nuance reader that allows the user to fill-in and save this form in Nuance. Please see http://portal.hud.00v/hudportal/documents/huddoc?id=nuancereaderinstall.pdf for the instructions. Using Nuance software is the only means of completing this form. Affirmative Fair Housing Marketing Plan (AFHMP) - Multifamily Housing U.S. Department of Housing and Urban Development Office of Fair Housing and Equal Opportunity OMB Approval No. 2529-0013 (exp.1 /31 /2021) la. Project Name & Address (including City, County, State & Zip Code) The Gallery at West Brickell 201 SW 10th Street Miami, Florida 33130 lb. Project Contract Number lc. No. of Units TBD Id. Census Tract 465 66.02 1e. Housing/Expanded Housing Market Area Housing Market Area: City of Miami Expanded Housing Market Area: Miami -Dade County 1f. Managing Agent Name, Address (including City, County, State & Zip Code), Telephone Number & Email Address TRG Management Company, LLP; 2200 North Commerce Parkway, Suite 100, Weston, FL 33326 Phone: 305-442-8628; Fax: 305-442-8895 1g. Application/Owner/Developer Name, Address (including City, County, State & Zip Code), Telephone Number & Email Address The Gallery at West Brickell, LLC/ Alberto Milo, Jr./2850 Tigertail Avenue, Suite 800, Miami, Florida 33133 Phone: 305-460-9900/amilo@relatedgroup.com 1 h. Entity Responsible for Marketing (check all that apply) El Owner 2Agent Other (specify) Position, Name (if known), Address ( including City, County, State & Zip Code), Telephone Number & Email Address Marilyn Pascual, Co -President, 2200 North Commerce Parkway, Suite 100, Weston, FL 33326 Phone: 954-243-0602/mpascual@relatedgroup.com 1i. To whom should approval and other correspondence concerning this AFHMP be sent? Indicate Name, Address (including City, State & Zip Code), Telephone Number & E-Mail Address. Gilda Femandez, VP, 2200 North Commerce Parkway, Suite 100, Weston, FL 33326 Phone: 305-442-8628 Ext. 116/gilda.femandez@relatedgroup.com 2a. Affirmative Fair Housing Marketing Plan Plan Type Initial Plan Reason(s) for current update: Date of the First Approved AFHMP: New Construction 2b. HUD -Approved Occupancy of the Project (check all that apply) 0 Elderly Family 0 Mixed (Elderly/Disabled) Disabled 2c. Date of Initial Occupancy 10/01/2025 2d. Advertising Start Date Advertising must begin at least 90 days prior to initial or renewed occupancy for new construction and substantial rehabilitation projects. Date advertising began or will begin For existing projects, select below the reason advertising will be used: 07/01/2025 To fill existing unit vacancies ❑ To place applicants on a waiting list 0 (which currently has To reopen a closed waiting list ❑ (which currently has 0 individuals) individuals) Previous editions are obsolete Page 1 of 8 Form HUD-935.2A (12/2011) 3a. Demographics of Proedt and Housing Market Area Complete and submitWorksheet 1. 3b. Targeted Marketing Activity Based on your completed Worksheet 1, indicate which demographic group(s) in the housing market area is/are least likely to apply for the housing without special outreach efforts. (check all that apply) ❑ White 0 American Indian or Alaska Native DAsian Q Native Hawaiian or Other Pacific Islander ❑ Hispanic or Latino 0 Families with Children ❑ Other ethnic group, religion, etc. (specify) ❑✓ Black or African American ❑ Persons with Disabilities 4a. Residency Preference Is the owner requesting a residency preference? If yes, complete questions 1 through 5. If no, proceed to Block 4b. (1) Type Please Select Type No (2) Is the residency preference area: The same as the AFHMP housing/expanded housing market area as identified in Block le? Please Select Yes or No The same as the residency preference area of the local PHA in whose jurisdiction the project is located? (3) What is the geographic area for the residency preference? Please Select Yes or No N/A (4) What is the reason for having a residency preference? N/A (5) How do you plan to periodically evaluate your residency preference to ensure that it is in accordance with the non-discrimination and equal opportunity requirements in 24 CFR 5.105(a)? N/A Complete and submit Worksheet 2 when requesting a residency preference (see also 24 CFR 5.655(c)(1)) for residency preference requirements. The requirements in 24 CFR 5.655(c)(1) will be used by HUD as guidelines for evaluating residency preferences consistent with the applicable HUD program requirements. See also HUD Occupancy Handbook (4350.3) Chapter 4, Section 4.6 for additional guidance on preferences. 4b. Proposed Marketing Activities: Community Contacts Complete and submit Worksheet 3 to describe your use of community contacts to market the project to those least likely to apply. 4c. Proposed Marketing Activities: Methods of Advertising Complete and submit Worksheet 4 to describe your proposed methods of advertising that will be used to market to those least likely to apply. Attach copies of advertisements, radio and television scripts, Internet advertisements, websites, and brochures, etc. Previous editions are obsolete Page 2 of 8 Form HUD-935.2A (12/2011) 5a. Fair Housing Poster The Fair Housing Poster must be prominently displayed in all offices in which sale or rental activity takes place (24 CFR 200.620(e)). Check below all locations where the Poster will be displayed. Rental Office Real Estate Office ❑ Model Unit ❑ Other (specify) 5b. Affirmative Fair Housing Marketing Plan The AFHMP must be available for public inspection at the sales or rental office (24 CFR 200.625). Check below all locations where the AFHMP will be made available. Q✓ Rental Office Real Estate Office ❑ Model Unit EI Other (specify) 5c. Project Site Sign Project Site Signs, if any, must display in a conspicuous position the HUD approved Equal Housing Opportunity logo, slogan, or statement (24 CFR 200,620(f)). Check below all locations where the Project Site Sign will be displayed. Please submit photos of Project signs. 0 Rental Office El Real Estate Office p Model Unit 0 Entrance to Project Other (specify) The size of the Project Site Sign will be 3' x 5' The Equal Housing Opportunity logo or slogan or statement will be 4" x 4" 6. Evaluation of Marketing Activities Explain the evaluation process you will use to determine whether your marketing activities have been successful in attracting individuals least likely to apply, how often you will make this determination, and how you will make decisions about future marketing based on the evaluation process. TRG Management will review our waiting list and current resident demographics and compare these to the census demographics for our community. In doing so, we will determine if those populations least likely to apply to the property are now more represented on the waiting list as well as the current residents and will evaluate our marketing efforts if improvements are necessary. Advertisements for available units will be placed in the Miami Herald and the Miami Times to target Asian and Black or African American residents. For American Indian or Alaskan Native residents, a monthly letter will be sent to Seminole Tribe of Florida in order to market to that community. For Native Hawaiian or Pacific Islander residents, a monthly letter will be sent to the Asian Pacific Islander American Public Affairs in order to market to that community. There will be opportunities for residents of the targeted population in The Gallery at West Brickell. The non -subsidized units will be available to the general public and marketing/outreach will be provided as indicated below. Previous editions are obsolete Page 3 of 8 Fomi HUD-935.2A (12/2011) 7a. Marketing Staff What staff positions are/will be responsible for affirmative marketing? Property Manager, Regional Manager and Compliance Manager. 7b. Staff Training and Assessment: AFHMP (1) Has staff been trained on the AFHMP? Yes (2) Has staff been instructed in writing and orally on non-discrimination and fair housing policies as required by 24 CFR 200.620(c)? (3) If yes, who provides instruction on the AFHMP and Fair Housing Act, and how frequently? Yes At least once a year or more if needed. Outside compliance in-house training. (4) Do you periodically assess staff skills on the use of the AFHMP and the application of the Fair Housing Act? (5) f yes, how and how often? Yes Review the AFHMP annually to ensure it is up to date and that all staff are aware of their responsibilities regarding • marketing the property. 7c. Tenant Selection Training/Staff (1) Has staff been trained on tenant selection in accordance with the project's occupancy policy, including any residency preferences? Yes (2) What staff positions are/will be responsible for tenant selection? Property Manager and Regional Manager. 7d. Staff Instruction/Training: Describe AFHM/Fair Housing Act staff training, already provided or to be provided, to whom it was/will be provided, content of training, and the dates of past and anticipated training. Please include copies of any AFHM/Fair Housing staff training materials. Employees are trained by private companies at least once a year, outsourced by TRG Management Company and on-line training seminars. Previous editions are obsolete Page 4 of 8 Form HUD-935.2A (12/2011) 8. Additional Considerations Is there anything else you would like to tell us about your AFHMP to help ensure that your program is marketed to those least likely to apply for housing in your project? Please attach additional sheets, as needed. TRG Management Company mandates that all employees attend continuing education classes to ensure Fair Housing and Equal Opportunity requirements are met and to acquire the skills necessary to implement adequate AFHMP and tenant selection procedures. 9. Review and Update By signing this form, the applicant/respondent agrees to Implement Its AFHMP, and to review and update its AFHMP in accordance with the Instructions to item 9 of this form In order to ensure continued compliance with HUD's Affirmative Fair Housing Marketing Regulations (see 24 CFR Part 200, Subpart M). I hereby certify that all the information stated herein, as well as any information provided in the accompaniment herewith, Is true and accurate. Warning: HUD will prosecute false claims and statements. Conviction may result in criminal and/or civil penalties. (See 18 U.S.C. 1001, 1010, 1012; 31 U.S.C. 3729, 3802). Signature of person submitting this Plan & Date of Submission (mm/dd/yyyy) 19 Name (type or print) Tony Del Pozzo Title & Name of Company Vice President - The Gallery at West Brickell, LLC For HUD -Office of Housing Use Only Reviewing Official: For HUD -Office of Fair Housing and Equal Opportunity Use Only Approval 0 Disapproval Signature & Date (mm/dd/yyyy) Signature & Date (mm/dd/yyyy) Name (type or print) Title Name (type Or print) Title Previous editions are obsolete Page 5 of 8 Form HUD-935.2A (12/2011) Public reporting burden for this collection of information is estimated to average six (6) hours per initial response, and four (4) hours for updated plans, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. This agency may not collect this information, and you are not required to complete this form, unless it displays a currently valid Office of Management and Budget (OMB) control number. Purpose of Form: All applicants for participation in FHA subsidized and unsubsidized multifamily housing programs with five or more units (see 24 CFR 200.615) must complete this Affirmative Fair Housing Marketing Plan (AFHMP) form as specified in 24 CFR 200.625, and in accordance with the requirements in 24 CFR 200.620. The purpose of this AFHMP is to help applicants offer equal housing opportunities regardless of race, color, national origin, religion, sex, familial status, or disability. The AFHMP helps owners/agents (respondents) effectively market the availability of housing opportunities to individuals of both minority and non -minority groups that are least likely to apply for occupancy. Affirmative fair housing marketing and planning should be part of all new construction, substantial rehabilitation, and existing project marketing and advertising activities. An AFHM program, as specified in this Plan, shall be in effect for each multifamily project throughout the life of the mortgage (24 CFR 200.620(a)). The AFHMP, once approved by HUD, must be made available for public inspection at the sales or rental offices of the respondent (24 CFR 200.625) and may not be revised without HUD approval. This form contains no questions of a confidential nature. Applicability: The form and worksheets must be completed and submitted by all FHA subsidized and unsubsidized multifamily housing program applicants. INSTRUCTIONS: Send completed form and worksheets to your local HUD Office, Attention: Director, Office of Housing Part 1: Applicant/Respondent and Project Identification. Blocks la, 1b, lc, lg, lh, and 1i are self- explanatory. Block ld- Respondents may obtain the Census tract number from the U.S. Census Bureau (http://factfinder2.census.qov/main.html) when completing Worksheet One. Block 1e- Respondents should identify both the housing market area and the expanded housing market area for their multifamily housing projects. Use abbreviations if necessary. A housing market area is the area from which a multifamily housing project owner/agent may reasonably expect to draw a substantial number of its tenants. This could be a county or Metropolitan Division. The U.S. Census Bureau provides a range of levels to draw from. An expanded housing market area is a larger geographic area, such as a Metropolitan Division or a Metropolitan Statistical Area, which may provide additional demographic diversity in terms of race, color, national origin, religion, sex, familial status, or disability. Block If- The applicant should complete this block only if a Managing Agent (the agent cannot be the applicant) is implementing the AFHMP. Part 2: Type of AFHMP Block 2a- Respondents should indicate the status of the AFHMP, i.e., initial or updated, as well as the date of the first approved AFHMP. Respondents should also provide the reason (s) for the current update, whether the update is based on the five-year review or due to significant changes in project or local demographics (See instructions for Part 9). Block 2b- Respondents should identify all groups HUD has approved for occupancy in the subject project, in accordance with the contract, grant, etc. Block 2c- Respondents should specify the date the project was/will be first occupied. Block 2d- For new construction and substantial rehabilitation projects, advertising must begin at least 90 days prior to initial occupancy. In the case of existing projects, respondents should indicate whether the advertising will be used to fill existing vacancies, to place individuals on the project's waiting list, or to re -open a closed waiting list. Please indicate how many people are on the waiting list when advertising begins. Previous editions are obsolete Page 6 of 8 Form HUD 935.2A (12/2011) Part 3 Demographics and Marketing Area. "Least likely to apply" means that there is an identifiable presence of a specific demographic group in the housing market area, but members of that group are not likely to apply for the housing without targeted outreach, including marketing materials in other languages for limited English proficient individuals, and altemative formats for persons with disabilities. Reasons for not applying may include, but are not limited to, insufficient information about housing opportunities, language barriers, or transportation impediments. Block 3a - Using Worksheet 1, the respondent should indicate the demographic composition of the project's residents, current project applicant data, census tract, housing market area, and expanded housing market area. The applicable housing market area and expanded housing market area should be indicated in Block 1e. Compare groups within rows/across columns on Worksheet 1 to identify any under -represented group(s) relative to the surrounding housing market area and expanded housing market area, i.e., those group(s) "least likely to apply" for the housing without targeted outreach and marketing. If there is a particular group or subgroup with members of a protected class that has an identifiable presence in the housing market area, but is not included in Worksheet 1, please specify under "Other." Respondents should use the most current demographic data from the U.S. Census or another official source such as a local government planning office. Please indicate the source of your data in Part 8 of this form. Block 3b - Using the information from the completed Worksheet 1, respondents should identify the demographic group(s) least likely to apply for the housing without special outreach efforts by checking all that apply. Part4 - Marketing Program and Residency Preference (if any). Block 4a - A residency preference is a preference for admission of persons who reside or work in a specified geographic area (see 24 CFR 5.655(c)(1)(ii)), Respondents should indicate whether a residency preference is being utilized, and if so, respondents should specify if it is new, revised, or continuing. If a respondent wishes to utilize a residency preference, it must state the preference area (and provide a map delineating the precise area) and state the reason for having such a preference. The respondent must ensure that the preference is in accordance with the non- discrimination and equal opportunity requirements in 24 CFR 5.105(a) (see 24 CFR 5.655(c)(1)). Respondents should use Worksheet 2 to show how the percentage of the eligible population living or working in the residency preference area compares to that of residents of the project, project applicant data, census tract, housing market area, and expanded housing market area. The percentages would be the same as shown on completed Worksheet 1. Block 4b - Using Worksheet 3, respondents should describe their use of community contacts to help market the project to those least likely to apply. This table should include the name of a contact person, his/her address, telephone number, previous experience working with the target population(s), the approximate date contact was/will be initiated, and the specific role the community contact will play in assisting with affirmative fair housing marketing or outreach. Block 4c - Using Worksheet 4, respondents should describe their proposed method(s) of advertising to market to those least likely to apply. This table should identify each media option, the reason for choosing this media, and the language of the advertisement. Alternative format(s) that will be used to reach persons with disabilities, and logo(s) that will appear on the various materials (as well as their size) should be described. Please attach a copy of the advertising or marketing material. Part 5 — Availability of the Fair Housing Poster, AFHMP, and Project Site Sign. Block 5a - The Fair Housing Poster must be prominently displayed in all offices in which sale or rental activity takes place (24 CFR 200.620(e)). Respondents should indicate all locations where the Fair Housing Poster will be displayed. Block 5b -The AFHMP must be available for public inspection at the sales or rental office (24 CFR 200.625), Check all of the locations where the AFHMP will be available. Block 5c -The Project Site Sign must display in a conspicuous position the HUD -approved Equal Housing Opportunity logo, slogan, or statement (24 CFR 200.620(f)). Respondents should Indicate where the Project Site Sign will be displayed, as well as the size of the Sign and the size of the logo, slogan, or statement. Please submit photographs of project site signs. Previous editions are obsolete Page 7 of Form HUD-935.2A (12/2011) Part 6 - Evaluation of Marketing Activities. Respondents should explain the evaluation process to be used to determine if they have been successful in attracting those individuals identified as least likely to apply. Respondents should also explain how they will make decisions about future marketing activities based on the evaluations. Part 7- Marketing Staff and Training. Block 7a -Respondents should identify staff positions that are/will be responsible for affirmative marketing. Block 7b - Respondents should indicate whether staff has been trained on the AFHMP and Fair Housing Act. Please indicate who provides the training and how frequently. In addition, respondents should specify whether they periodically assess staff members' skills in using the AFHMP and in applying the Fair Housing Act. They should state how often they assess employee skills and how they conduct the assessment. Block 7c - Respondents should indicate whether staff has been trained on tenant selection in accordance with the project's occupancy policy, including residency preferences (if any). Respondents should also identify those staff positions that are/will be responsible for tenant selection. Block 7d - Respondents should include copies of any written materials related to staff training, and identify the dates of past and anticipated training. Part 8 - Additional Considerations. Respondents should describe their efforts not previously mentioned that were/are planned to attract those individuals least likely to apply for the subject housing. Part 9 - Review and Update. By signing the respondent assumes responsibility for implementing the AFHMP. Respondents must review their AFHMP every five years or when the local Community Development jurisdiction's Consolidated Plan is updated, or when there are significant changes in the demographics of the project or the local housing market area. When reviewing the plan, the respondent should consider the current demographics of the housing market area to determine if there have been demographic changes in the population in terms of race, color, national origin, religion, sex, familial status, or disability. The respondent will then determine if the population least to likely to apply for the housing is still the population identified in the AFHMP, whether the advertising and publicity cited in the current AFHMP are still appropriate, or whether advertising sources should be modified or expanded. Even if the demographics of the housing market area have not changed, the respondent should determine if the outreach currently being performed is reaching those it is intended to reach as measured by project occupancy and applicant data. If not, the AFHMP should be updated. The revised AFHMP must be submitted to HUD for approval. HUD may review whether the affirmative marketing is actually being performed in accordance with the AFHMP. If based on their review, respondents determine the AFHMP does not need to be revised, they should maintain a file documenting what was reviewed, what was found as a result of the review, and why no changes were required. HUD may review this documentation. Notification of Intent to Begin Marketing. No later than 90 days prior to the initiation of rental marketing activities, the respondent must submit notification of intent to begin marketing. The notification is required by the AFHMP Compliance Regulations (24 CFR 108.15). The Notification is submitted to the Office of Housing in the HUD Office servicing the locality in which the proposed housing will be located. Upon receipt of the Notification of Intent to Begin Marketing from the applicant, the monitoring office will review any previously approved plan and may schedule a pre -occupancy conference. Such conference will be held prior to initiation of sales/rental marketing activities. At this conference, the previously approved AFHMP will be reviewed with the applicant to determine if the plan, and/or its proposed implementation, requires modification prior to initiation of marketing in order to achieve the objectives of the AFHM regulation and the plan. OMB approval of the AFHMP includes approval of this notification procedure as part of the AFHMP. The burden hours for such notification are included in the total designated for this AFHMP form. Previous editions are obsolete Page 8of8 Form HUD-935.2A (12/2011) Worksheet 1: Determining Demographic Groups Least Likely to Apply for Housing Opportunities (See AFHMP, Block 3b) in the respective columns below, indicate the percentage of demographic groups among the projects residents, current project applicant data, census tract, housing market area, and expanded housing market area (See instructions to Block le). If you are a new construction or substantial rehabilitation project and do not have residents or project applicant data, only report information for census tract, housing market area, and expanded market area. The purpose of this information is to identify any under -representation of certain demographic groups in terms of race, color, national origin, religion, sex, familial status, or disability. If there is significant under -representation of any demographic group among project residents or current applicants in relation to the housing/expanded housing market area, then targeted outreach and marketing should be directed towards these individuals least likely to apply. Please indicate under -represented groups in Block 3b of the AFHMP. Please attach maps showing both the housing market area and the expanded housing market area. Demographic Characteristics Projects Residents Project's Applicant Data Census Tract Housing Market Area Expanded Housing Market Area %White 0 0 95.1% 65.6% 75.1% % Black or African American 0 0 3.1% 21.4% .17.4% % Hispanic or Latino 0 0 N/A 85.7% 68.5% % Asian 0 0 N/A 0.4% 1.6% % American Indian or Alaskan Native 0 0 N/A 0.4% 0.2% % Native Hawaiian or Pacific Islander 0 0 N/A 0.0% 0.0% %Persons with Disabilities 0 0 i N/A i12.5% 10.4% % Families with Children under the age of 18 0 0 N/A 25.2% 28.8% Other (specify) 0 0 0 0 0 Worksheet 2: Establishing a Residency Preference Area (See AFHMP, Block 4a) Complete this Worksheet if you wish to continue, revise, or add a residency preference, which is a preference for admission of persons who reside or work in a specified geographic area (see 24 CFR 5.655(c)(1)(ii)). If a residency preference is utilized, the preference must be in accordance with the.non-discrimination and equal opportunity requirements contained in 24 CFR 5.105(a). This Worksheet will help show how the percentage of the population in the residency preference area compares to the demographics of the project 's residents, applicant data, census tract, housing market area, and expanded housing market area. Please attach a map clearly delineating the residency preference geographical area. Demographic Characteristics Project's Residents (as determined in Worksheet 1) Project's Applicant Data (as determined in Worksheet 1) Census Tract (as determined in Worksheet 1) Housing Market Area (as determined in Worksheet 1) Expanded Housing Market Area (as determined in Worksheet 1) Residency Preference Area (if applicable) % White % Black or African American % Hispanic or Latino % Asian American Indian or Alaskan Native % Native Hawaiian or Pacific Islander % Persons with Disabilities % Families with Children under the age of 18 Other (specify) Worksheet 3: Proposed Marketing Activities —Community Contacts (See AFHMP, Block 4b) For each targeted marketing population designated as least likely to apply in Block 3b, identify at least one community contact organization you will use to facilitate outreach to the particular population group. This could be a social service agency, religious body, advocacy group, community center, etc. State the names of contact persons, their addresses, their telephone numbers, their previous experience working with the target population, the approximate date contact was/will be initiated, and the specific role they will play in assisting with the affirmative fair housing marketing. Please attach additional pages if necessary. Targeted Populatlon(s) Community Contact(s), Including required information noted above. American Indian or Alaskan Native Seminole Tribe of Florida Attn: Mittchell Cypress - President 6300 Sterling Road, Hollywood, Florida 33024; Phone: 954-966-6300 Founded in 1957. Monthly letter will be sent. Asian Asian American Justice Center Attn: Jiny Kim - Vice President, Policy and Programs 1620 L Street NW #1050, Washington, DC 20036; Phone: 202-296-2300 ext. 141 Founded in 1991. Monthly letter will be sent. Native Hawaiian or Pacific Islander Asian Pacific Islander American Public Affairs Attn: Matusamy Swami - President P.O. Box 770322, Orlando, FL 3287; Phone: 916-928-8988 Founded in 2001. Monthly letter will be sent. Black or African American African American Cultural Society Attn: Edmund G. Pinto, Jr. P.O, Box 350607 Palm Coast FL 32135., Phone 386-447-7030 Founded in 1991. Monthly letter will be sent. Worksheet 4: Proposed Marketing Activities — Methods of Advertising (See AFHMP, Block 4c) Complete the following table by identifying your targeted marketing population(s), as indicated in Block 3b, as well as the methods of advertising that will be used to market to that population. For each targeted population, state the means of advertising that you will use as applicable to that group and the reason for choosing this media. In each block, in addition to specifying the media that will be used (e.g., name of newspaper, television station, website, location of bulletin board, etc.) state any language(s) in which the material will be provided, identify any alternative format(s) to be used (e.g. Braille, large print, etc.), and specify the logo(s) (as well as size) that will appear on the various materials. Attach additional pages, if necessary, for further explanation. Please attach a copy of the advertising or marketing material. • Targeted Population(s)--> Methods of Advertising . Targeted Population: Targeted Population: Targeted Population: Newspaper(s) Tenants that under Miami Herald/Miami Times qualify the program requirements Radio Station(s) TV Station(s) Electronic Media Tenants that TRG Management Website qualify under the program requirements Bulletin Boards Brochures, Notices, Flyers . Other (specify) - Resident Referral Tenants that qualify under the program requirements 1 EXHIBIT "F" FORM OF MORTGAGE Prepared by, and after recording, return to: Victoria Mendez, Esq. City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 201 Southwest 10 Street, Miami, Florida 33130 Note to Recorder: This Mortgage is given to secure financing under Part V of Chapter 420 of the Florida Statutes and is exempt from taxation pursuant to Section 420.513, Florida Statutes. AMENDED AND RESTATED LEASEHOLD MORTGAGE AND SECURITY AGREEMENT FOR THE GALLERY AT WEST BRICKELL, LLC THIS AMENDED AND RESTATED LEASEHOLD MORTGAGE AND SECURITY AGREEMENT ("Mortgage"), is executed and delivered the day of , 2022 by THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company, whose address is 2850 Tigertail Ave, Suite 800, Miami, FL 33133 ("Mortgagor"), to the CITY OF MIAMI, a municipal corporation of the State of Florida, with offices at 444 S.W. 2nd Avenue, Miami, Florida 33130-1910 ("Mortgagee"). RECITALS WHEREAS, on July 30, 2021, July 19, 2022, and , 2022 the Mortgagee approved an allocation of Three Million and 00/100 Dollars ($3,000,000.00) in HOME Investment Partnerships Program ("HOME") funds for construction of residential apartment units in the Brickell neighborhood of Miami, Florida ("Project"); and WHEREAS, Mortgagor made, executed and delivered to RUDG Investor, LLC, a Florida limited liability company ("RUDG") that certain Leasehold Mortgage and Security Agreement for The Gallery at West Brickell, LLC (Placeholder Mortgage) dated as of , 2022, by Mortgagor in favor of RUDG, recorded on , 2022, in Official Records Book , Page ; as affected by Mortgage Subordination Agreement by and among RUDG, The Bank of New York Mellon Trust Company, N.A., as Fiscal Agent and JPMorgan Chase Bank, N.A., and consented to by Mortgagor, dated as of , recorded in official Records Book , Page , all of the Public Records of Miami - Dade County, Florida (the "Placeholder Mortgage"); and WHEREAS, on even date herewith, RUDG has assigned all of its right, title and interest in and to the Placeholder Mortgage to Mortgagee, and Mortgagee has accepted the assignment of the Placeholder Mortgage; and WHEREAS, Mortgagor and Mortgagee desire to amend and restate the Placeholder Mortgage in its entirety as hereinafter provided. WHEREAS, Mortgagor has delivered to Mortgagee that certain Amended and Restated HOME Promissory Note for The Gallery at West Brickell, LLC, of even date herewith, made by Mortgagor in favor of Mortgagee (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, and together with any and all renewals, Page 1 of 12 replacements, extensions, modifications, substitutions, future advances and any other evidence of indebtedness evidenced by said Amended and Restated Promissory Note) ("Note"), which Note evidences the indebtedness in the amount of Three Million and 00/100 Dollars ($3,000,000.00) in HOME funds which are restricted by certain other documents that are executed of even date herewith such as the Loan Agreement, Declaration of Restrictive Covenants, Disbursement Agreement, Rent Regulatory Agreement, and the Note (the "Loan"). NOW THEREFORE, in consideration of the making of the Loan by Mortgagee and the covenants, agreements, representations and warranties set forth in this Mortgage: WITNESSETH THAT: FOR GOOD AND VALUABLE CONSIDERATION, as set forth in the above recitals that are hereby incorporated by reference, the receipt and sufficiency of which are hereby acknowledged, and also in consideration of the aggregate sum named in the promissory note from the Mortgagor in favor of the Mortgagee, in the original principal amount of Three Million and 00/100 Dollars ($3,000,000.00) (hereinafter referred to as the "Note"), the Mortgagor does grant, bargain sell, alien, remise, release, convey and confirm unto the Mortgagee, in leasehold interest, that certain tract of land which the Mortgagor is now seized and possessed and in actual possession, situate in Miami -Dade County, State of Florida, located at 201 Southwest 10 Street, Miami, Florida 33130, legally described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN TOGETHER WITH all structures and improvements now and hereafter located thereon, the rents, issues and profits thereof, all furniture, furnishings, fixtures and equipment now located thereon, and also all gas and electric fixtures, heaters, air conditioning, equipment, machinery, motors, baths, tubs, sinks, water closets, faucets, pipes and other plumbing and heating fixtures, refrigerators, blinds, and other window treatments, which are now or may hereafter pertain to or be used with, in or on said premises, and which, even though they be detached or detachable, are and shall be deemed to be fixtures and accessions to the freehold and a part of the realty, and all additions thereto and replacements thereof, which real property, improvements and personalty shall hereinafter collectively be referred to as the "Mortgaged Property". TO HAVE AND TO HOLD the same, together with all tenements and hereditaments and appurtenances, unto the Mortgagee in leasehold estate. The Mortgagor does covenant with the Mortgagee that Mortgagor is indefeasibly seized of a leasehold estate in the Mortgaged Property; that the Mortgagor has full power and lawful right to convey the leasehold estate in the Mortgaged Property as aforesaid; that the Mortgaged Property is free from all encumbrances except as specified on Exhibit "B" attached hereto and incorporated herein; that the Mortgagor will make such further assurances to perfect the leasehold estate to the Mortgaged Property in the Mortgagee as may reasonably be required; and that the Mortgagor does hereby fully warrant title to the Mortgaged Property, and will defend the same against the lawful claims of all persons whomsoever. Page 2of12 PROVIDED ALWAYS, that if the Mortgagor shall pay unto the Mortgagee or otherwise perform and fulfill its obligations with respect to the indebtedness and obligations evidenced by the Note, and shall perform, comply with and abide by each and every one of the stipulations, agreements, conditions and covenants of the Note, this Mortgage, the Covenant, the Disbursement Agreement, the Rent Regulatory Agreement, and the Loan Agreement dated of even date herewith by and between Mortgagee, as lender therein, and Mortgagor, as borrower therein (the "Agreement" or "Loan Agreement") and all other loan documents executed in connection herewith and therewith (hereinafter jointly referred to as "the Loan Documents"), then this Mortgage and the estate thereby created shall cease and be null and void. AND THE MORTGAGOR HEREBY COVENANTS AND AGREES AS FOLLOWS: 1. PERFORMANCE OF NOTE AND MORTGAGE. The Mortgagor shall pay or otherwise fully perform its obligations with respect to the payment of all and singular the principal, interest and other sums of money payable by virtue of the Note and this Mortgage, or either, promptly on the days when the same severally become due and payable, and shall perform, comply with and abide by each and every of the stipulations, agreements, conditions and covenants set forth in the Note, this Mortgage and the Loan Documents. 2. TAXES AND OTHER CHARGES. The Mortgagor shall pay when due and payable and before any interest, charge or penalty is due thereon, without any deduction, defalcation or abatement, all taxes, assessments, levies, liabilities, obligations, encumbrances, water and sewer rents and all other charges or claims of every nature and kind which may be imposed, suffered, placed, assessed, levied, or filed at any time against this Mortgage, the Mortgaged Property or any part thereof or against the interest of the Mortgagee therein, or which by any present or future law may have priority over the indebtedness secured hereby either in lien or in distribution out of the proceeds of any judicial sale, without regard to any law heretofore or hereafter to be enacted imposing payment of the whole or of any part upon the Mortgagee; and insofar as any such tax, assessment, levy, liability, obligation or encumbrance is of record, the same shall be promptly satisfied and discharged of record and the original official document (such as, for instance, the tax receipt or the satisfaction paper officially endorsed or certified) shall be placed in the hands of the Mortgagee no later than such dates; provided, however, that if, pursuant to this Mortgage or otherwise, the Mortgagor shall have deposited with the Mortgagee before the due date thereof sums sufficient to pay any such taxes, assessments, levies, water and sewer rents, charges or claims, and the Mortgagor is not otherwise in default, they shall be paid by the Mortgagee; and provided further, that if the Mortgagor in good faith and by appropriate legal action shall contest the validity of any such items or the amount thereof, and shall have established on its books or by deposit of cash with the Mortgagee, as the Mortgagee may elect, a reserve for the payment thereof in such amount as the Mortgagee may require, then the Mortgagor shall not be required to pay the item or to produce the required receipts: (a) while the reserve is maintained; and (b) so long as the contest operates to prevent collection, is maintained and prosecuted with diligence, and shall not have been terminated or discontinued adversely to the Mortgagor. The Mortgagor shall furnish the Mortgagee with annual receipted tax bills evidencing payment within ninety (90) days from their initial due date. Page 3of12 3. INSTALLMENTS FOR INSURANCE, TAXES AND OTHER CHARGES. Without limiting the effect of Paragraphs 2 or 5 hereof, the Mortgagee may require the Mortgagor to pay to the Mortgagee, monthly with the monthly installments of principal and interest, an amount equal to one -twelfth (1/12) of the annual premiums for the insurance policies referred to hereinabove and the annual real estate taxes, water and sewer rents, any special assessments, charges or claims and any other item which at any time may be or become a lien upon the Mortgaged Property prior to the lien of this Mortgage; and on demand from time to time the Mortgagor shall pay to the Mortgagee any additional sums necessary to pay the premiums and other items, all as estimated by the Mortgagee. The amounts so paid shall be used in payment thereof if the Mortgagor is not otherwise in default hereunder. No amount so paid shall be deemed to be trust funds but may be commingled with general funds of the Mortgagee, and no interest shall be payable thereon. If, pursuant to any provision of this Mortgage, the whole amount of the unpaid principal debt becomes due and payable, the Mortgagee shall have the right, at its election, to apply any amount so held against the entire indebtedness secured hereby. At the Mortgagee's option, the Mortgagee from time to time may waive, and after any such waiver may reinstate, the provisions of this Paragraph requiring monthly payments. 4. ATTORNEYS' FEES AND COSTS. Subject to Paragraph 11, in the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Mortgage, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. 5. INSURANCE. The Mortgagor shall keep the buildings and improvements now or hereafter erected on the Mortgaged Property continuously insured under a policy or policies providing coverage on an "all risk" basis, in a sum not less than full insurable value or replacement cost valuation„ including coverage for windstorm, hail, and flood insurance if applicable, in a company or companies acceptable to the Mortgagee. Such policy shall also include coverage for Law and Ordinance and Loss of Rents with a maximum policy deductible on windstorm, hail and flood of 5%. In addition; the Mortgagor agrees to continuously maintain Commercial General Liability with limits of $1,000,000 per occurrence, $2,000,000 policy aggregate protecting against bodily injury and property damage arising from claims involving premises and operations, products and completed operations, personal and advertising injury liability, and hired and non owned automobile exposures. In addition, the Mortgagor shall furnish Umbrella Liability coverage with limits of at least $2,000,000 per occurrence, $2,000,000 policy aggregate. The policy or policies of insurance contained herein shall list the Mortgagee as an additional insured on all third party liability policies and loss payee as to property, and be held by and be payable to the Mortgagee. In the event any sum of money becomes payable under such policy or policies, the Mortgagee shall have the option to receive and apply the same on account of the indebtedness secured by this Mortgage or to permit the Mortgagor to receive and use it, or any part thereof, for other purposes, without thereby waiving or impairing any equity lien or right under or by virtue of this Mortgage. In the event the Mortgagor fails to procure and maintain the insurance coverage required hereby, the Mortgagee may procure and pay for such insurance or any part thereof, without waiving or affecting its option to foreclose this Mortgage, or any right thereunder. Each and every such payment made by the Mortgagee shall be secured by this Mortgage; shall be due and payable on demand; and, shall bear interest from the date each such payment is made at the maximum rate permitted by Page 4 of 12 law. Notwithstanding any provision contained herein, Mortgagee will not exercise its option to receive and apply the insurance funds to the indebtedness if there has not been an event of default under the Loan Documents and Mortgagor demonstrates there are sufficient funds to rebuild, repair or restore the improvements on the Mortgaged Property. 6. CARE OF THE MORTGAGED PROPERTY. The Mortgagor shall exercise reasonable care in the maintenance of the Mortgaged Property, and shall not permit, commit or suffer any waste, impairment or deterioration of the Mortgaged Property or any part thereof In the event the Mortgagor fails to keep the Mortgaged Property in good repair, the Mortgagee may make such repairs as it may deem necessary in its sole discretion for the proper preservation thereof, and the full amount of each such payment shall be due and payable with interest at the maximum rate permitted by law on demand, and shall be secured by the lien of this Mortgage. 7. EXISTING/OTHER MORTGAGES AND OBLIGATIONS. Any default in the payment or terms and conditions of any existing or other mortgage(s), or any modification of, and/or acceptance of future advances from, any existing or other mortgage(s), other than in connection with the Permitted Senior Financing, without the notice and prior written approval of Mortgagee, shall constitute a default hereunder and the Mortgagee, at its option, may declare all sums due and payable and accelerate the entire indebtedness. The Mortgagee may, at its option, and without waiving its right to accelerate the indebtedness hereby secured and to foreclose the same, pay either before or after delinquency any or all of those certain obligations required by the terms hereof to be paid by the Mortgagor for the protection of the Mortgage security or for the collection of the indebtedness hereby secured. All sums so advanced or paid by Mortgagee shall be charged into the mortgage account, and every payment so made shall bear interest from the date thereof at the delinquent rate specified in said Mortgage Note, and become an integral part thereof, subject in all respects to the terms, conditions and covenants of the aforesaid Promissory Note, and this Mortgage, as fully and to the same extent as though a part of the original indebtedness evidenced by said Note and secured by this Mortgage, excepting however, that said sums shall be repaid to the Mortgagee within fifteen (15) days after demand by the Mortgagee to the Mortgagor for said payment. 8. INSPECTION. The Mortgagee, and any persons authorized by the Mortgagee, shall have the right at any time, upon reasonable notice to the Mortgagor, to enter the Mortgaged Property at a reasonable hour to inspect and photograph its condition and state of repair, subject to the rights of tenants under the terms of their leases. 9. ACCELERATION OF MATURITY. That (a) in the event of any breach of this Mortgage, or default on the part of the Mortgagor which is not cured within thirty (30) days following written notice from the Mortgagee, or if such default cannot practicably be cured within thirty (30) days, then within such additional time as may be required to effect a cure, so long as (i) the cure is commenced within thirty (30) days and is diligently prosecuted and (ii) the lack of a cure during such continuing cure period has no material adverse effect on the Mortgaged Property, or (b) in the event any of said sums of money herein referred to be not promptly and fully paid within fifteen (15) days next after the same severally become due and payable, without demand or notice; or (c) in the event each and every stipulation, agreement, Page 5 of 12 condition and covenants of the Note, this Mortgage, or any of the Loan Documents, are not duly, promptly and fully performed, discharged, executed, effected, completed, complied with and abided by, following the applicable notice and cure periods; or (d) in the event the Mortgagor shall fail, within ten (10) days written notice by the Mortgagee to execute a Mortgagor's certificate in favor of any assignee or prospective assignee of the Mortgagee's interest hereunder which certificate shall contain such acknowledgments, affirmations, and covenants as may be reasonably required to enable the Mortgagee to assign their interest hereunder, or (e) upon the rendering by any court of last resort of a decision that an undertaking by the Mortgagor as herein provided to pay taxes, assessments, levies liabilities, obligations and encumbrances is legally inoperative or cannot be enforced, or (f) in the event of the passage of any law changing in any way or respect the laws now in force for the taxation of mortgages or debts secured thereby, or the manner of collection of any such taxes, so as to materially adversely affect this Mortgage or the debt secured hereby; or (g) in the event there exists an event of default under and pursuant to the terms of any other obligation of any kind or nature whatsoever of the Mortgagor to the Mortgagee, direct or contingent, whether now existing or hereafter due, existing, created or arising, then in either or any such event, the said aggregate sum mentioned in said Note then remaining unpaid, with interest accrued, and all other fees and charges due in connection therewith, and all monies secured hereby shall become due and payable forthwith, or thereafter, at the option of the Mortgagee or successor mortgagee hereof, as fully and completely as if all of the sums of money were originally stipulated to be paid on such day, anything in the Note and/or in this Mortgage to the contrary notwithstanding; and thereupon or thereafter, at the option of the Mortgagee or successor mortgagee hereof, without notice or demand, suit at law or in equity, therefore, or thereafter begun, may be prosecuted as if all money secured hereby had matured prior to its institution. 10. NO ADDITIONAL FINANCING. The Mortgagor hereby covenants and agrees that Mortgagor shall not procure any other financing in connection with the Mortgaged Property without the prior written consent of the Mortgagee other than financings disclosed to the Mortgagee in writing as of the date hereof. 11. DEFENSE OF MORTGAGED PROPERTY AND MORTGAGE. If any action or proceeding shall be commenced by any person other than the Mortgagee, and the Mortgagee is made a party, or in which it shall become necessary for the Mortgagee to defend or take action to uphold or defend the lien of this Mortgage, all sums paid or incurred by the Mortgagee for the expense of any litigation, including court costs and reasonable attorneys' fees incurred in any trial, appellate, and bankruptcy proceedings, to prosecute or defend the rights and liens created by this Mortgage shall be paid by the Mortgagor, together with interest thereon at the maximum rate permitted by law from the date thereof, and any such sum and interest thereon shall be a claim upon the Mortgaged Property, attaching or accruing subsequent to the lien of this Mortgage, and shall be secured by the lien of this Mortgage. 12. CONDEMNATION. In the event the Mortgaged Property or any part thereof shall be condemned under the power of eminent domain, the Mortgagee shall have the right to demand that all damages awarded for such taking be paid to the Mortgagee and shall be entitled to receive same, up to the aggregate amount then remaining unpaid on the Note and this Mortgage, and any such sums shall be applied to the payments last payable thereof. Page 6 of 12 13. SUBROGATION. To the extent of the indebtedness of the Mortgagor to the Mortgagee as described in the Note, the Mortgagee shall be subrogated to the lien and the rights of the owners and holders of each and every mortgage, lien or other encumbrance on the Mortgaged Property which is paid or satisfied, in whole or in part, out of the proceeds of the Note. The respective liens of such mortgages, liens or other encumbrances shall be and are hereby security for the Note, as if they had been regularly assigned, transferred, and delivered unto the Mortgagee, notwithstanding the fact that the same may be set aside and canceled of record. It is the intention of the parties hereto that the prior mortgages, liens or other encumbrances will be satisfied and canceled of record by the holders thereof at or about the time of the recording of this Mortgage. 14. APPOINTMENT OF RECEIVER. At any time while a suit is pending to foreclose or to reform this Mortgage or to enforce any claims arising hereunder, the Mortgagee may apply to a court of appropriate jurisdiction for the appointment of a receiver, and such court shall forthwith appoint a receiver of the Mortgaged Property, including all and singular the income, profits, rents, issues and revenues from whatever source derived. The receiver shall have all the broad and effective functions and powers in anywise entrusted by a court to a receiver, and such appointment shall be made by such court as an admitted equity and as a matter of absolute right to the Mortgagee without reference to the adequacy or inadequacy of the value of the Mortgaged Property, or to the solvency or insolvency of the Mortgagor or the Defendants. All income, profits, rents, issues and revenues collected by the receiver shall be applied by such receiver according to the lien of this Mortgage, and the practice of such court. 15. NO TRANSFER OF MORTGAGED PROPERTY. It is expressly agreed that should the Mortgagor convey title to the Mortgaged Property or, except as set forth in the Loan Agreement, any legal or equitable interest therein, to any person, firm or corporation or shall permit or create any further encumbrances upon the Mortgaged Property without the prior written approval of the Mortgagee to such conveyance or encumbrance, all sums outstanding under the Note and secured by this Mortgage shall become immediately due and payable, at the option of the Mortgagee. 16. LEASES AFFECTING MORTGAGED PROPERTY. The Mortgagor shall comply with and observe its obligations as landlord under all leases affecting the Mortgaged Property or any part thereof. Upon request, the Mortgagor shall furnish promptly to the Mortgagee executed copies of all such leases now existing or hereafter created. The Mortgagor shall not accept payment of rent more than one (1) month in advance without the prior written consent of the Mortgagee. Nothing contained in this Section or elsewhere in this Mortgage shall be construed to make the Mortgagee a mortgagee in possession unless and until the Mortgagee actually takes possession of the Mortgaged Property either in person or through an agent or receiver. To the extent not provided by applicable law, each lease of the Mortgaged Property, shall provide that, in the event of the enforcement by the Mortgagee of the remedies provided for by law or by this Mortgage, the lessee thereunder will, if requested by the Mortgagee or by any person succeeding to the interest of the Mortgagee as the result of said enforcement, automatically become the lessee of any such successor in interest, without any change in the terms or other provisions of the respective lease; provided, however, that said successor in interest shall not be bound by (i) any payment of rent or additional rent for more than one (1) month in advance, except prepayments in the nature of security for the performance by said Page 7 of 12 lessee of its obligations under said lease not in excess of an amount equal to one (1) month's rental, or (ii) any amendment or modification in the lease made without the consent of the Mortgagee or any successor in interest. Each lease shall also provide that, upon request by said successor in interest, the lessee shall execute and deliver an instrument or instruments confirming its attornment. 17. ASSIGNMENT OF RENTS, ISSUES AND PROFITS. The Mortgagor does hereby bargain, sell, transfer, assign, convey, set over and deliver unto the Mortgagee, as security for the payment and performance of all the terms and conditions of the Note and this Mortgage, and any and all amendments, extensions and renewals thereof, all Leases affecting the Mortgaged Property or any part thereof now existing or which may be executed at any time in the future during the life of this Mortgage, and all amendments, extensions and renewals of said leases and any of them, and all rents and other income which may now or hereafter be or become due or owing under the Leases, and any of them, on account of the use of the Mortgaged Property, it being intended hereby to establish a complete transfer of the leases hereby assigned and all the rents and other income arising thereunder and on account of the use of the Mortgaged Property unto the Mortgagee, with the right, but without the obligation, to collect all of said rents and other income which may become due during the life of the Note and this Mortgage. The Mortgagor agrees to deposit with the Mortgagee upon demand such leases as may from time to time be designated by the Mortgagee. Although it is the intention of the parties that this shall be a present assignment, it is expressly understood and agreed, anything herein contained to the contrary notwithstanding, that the Mortgagee shall not exercise any of the rights or powers herein conferred upon it until a default shall occur under the terms and provisions of the Note and this Mortgage, but upon the occurrence of any default the Mortgagee shall be entitled, upon notice to the tenants, to all rents and other amounts then due under the leases and thereafter accruing, and this Mortgage shall constitute a direction to and full authority to the tenants, lessees or other occupants of the premises (hereinafter collectively referred to as the "Tenants") to pay all said amounts to the Mortgagee without proof of the default relied upon. The Tenants are hereby irrevocably authorized to rely upon and comply with any notice or demand by the Mortgagee for the payment to the Mortgagee of any rental or other sums which may be or thereafter become due under the leases, or for the performance of any of the Tenants undertakings under the leases and shall have no right or duty to inquire as to whether any default under this Mortgage has actually occurred or is then existing. 18. MORTGAGE CONSTITUTES SECURITY AGREEMENT. This Mortgage also constitutes a security agreement as defined under the Uniform Commercial Code. The Mortgagor hereby grants to the Mortgagee a security interest in and to all furniture, furnishings, equipment, machinery, and personal property of every nature whatsoever now owned or hereafter acquired by the Mortgagor located upon the Mortgaged Property together with all proceeds therefrom and as further described in an exhibit to the Security Agreement of even date herewith, if any. The Mortgagor shall execute any and all documents as the Mortgagee may request, including, without limitation, financing statements pursuant to the Uniform Commercial Code as adopted by the State of Florida, to preserve and maintain the priority of the lien created hereby on property which may be deemed personal property or fixtures. The Mortgagor hereby authorizes and empowers the Mortgagee to execute and file on behalf of the Mortgagor all financing statements and refiling and continuations thereof as the Mortgagee deems necessary or advisable to create, preserve or protect said lien. The Mortgagor and Mortgagee expressly agree Page 8 of 12 that the filing of a financing statement shall never be construed as in anywise derogating from or impairing the express declaration and intention of the parties hereto that all such personality located on or utilized in connection with the real property encumbered by this Mortgage shall at all times and for all purposes, in all proceedings both legal and equitable, be deemed a part of the real property encumbered by this Mortgage. 19. CARE OF PROPERTY. (a) The Mortgagor shall preserve and maintain the Mortgaged Property in good condition and repair. Except for: (i) repairs or replacements for ordinary wear and tear or in the ordinary course of management of the Mortgaged Property; (ii) tenant or similar improvements and upgrades; and (iii) repairs, replacements, or other restorations in the event of a casualty or condemnation that are performed in accordance with the Loan Agreement, the Mortgagor shall not remove, demolish, alter or change the use of any building, structure or other improvement presently or hereafter on the Land constituting any part of the Mortgaged Property without the prior written consent of the Mortgagee. The Mortgagor shall not permit, commit or suffer any waste, impairment or deterioration of the Mortgaged Property or of any part thereof, and will not take any action which will increase the risk of fire or other hazard to the Mortgaged Property or to any part thereof. The Mortgagor shall comply with all applicable local, state, and federal regulations in regards to the Property. (b) Except as otherwise provided in this Mortgage, no fixture, personal property or other part of the Mortgaged Property shall be removed, demolished or altered, without the prior written consent of the Mortgagee. The Mortgagor may sell or otherwise dispose of, free from the lien of this Mortgage, furniture, furnishings, equipment, tools, appliances, machinery, fixtures or appurtenances, subject to the lien hereof, which may become worn out, undesirable or obsolete, only if they are replaced immediately with similar items of at least equal value which shall, without further action, become subject to the lien of this Mortgage. 20. MORTGAGE SECURES INDEBTEDNESS. It is expressly agreed and understood that this Mortgage secures the indebtedness and the obligation of the Mortgagor to the Mortgagee with respect to the Note, as the same is evidenced by the Note, and all renewals, extensions and modifications thereof. This Mortgage shall not be deemed released, discharged or satisfied until the entire indebtedness evidenced by the Note is paid in full. 21. MORTGAGEE'S REMEDIES CUMULATIVE. The Mortgagor agrees that all rights of the Mortgagee hereunder shall be separate, distinct, and cumulative, and that none shall be in exclusion of the other, and that no act of the Mortgagee shall be construed as an election to proceed under any provision of covenant herein to the exclusion of any other, notwithstanding anything herein to the contrary. 22. FUTURE ADVANCES. Pursuant to the laws of the State of Florida, this Mortgage shall secure not only the existing indebtedness evidenced by the Note, but also such future advances as may be made by the Mortgagee to the Mortgagor in accordance with the Note, this Mortgage, or any other Loan Document executed in connection herewith, whether or not such advances are obligatory or are to be made at the option of the Mortgagee, or otherwise, and as are made within twenty (20) years from the date hereof, to the same extent as if such Page 9 of 12 future advances were made on the date of the execution of this Mortgage. The total amount of indebtedness that may be so secured may decrease or increase from time to time, but the total unpaid balance so secured at one time shall not exceed one and a half times the face amount of the Note, plus interest thereon, and any disbursements made for the payment of taxes, levies or insurance on the Mortgaged Property with interest on such disbursements at the rate designated in the Note to apply following a default thereunder. 23. INDEMNIFICATION. The Mortgagor hereby protects, indemnifies, defends, and saves harmless the Mortgagee, its officers, directors, agents and employees, from and against any and all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) imposed upon, incurred by or asserted against the Mortgagee or any of such persons by reason of (a) ownership of any interest in the Mortgaged Property or any part thereof, (b) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Mortgaged Property or any part thereof or the adjoining sidewalks, curbs, vaults and vault space, if any, streets or ways, (c) any use, disuse or condition of the Mortgaged Property or any part thereof, or the adjoining sidewalks, curbs, vaults and vault space, if any, or any streets or ways, (d) any failure on the part of the Mortgagor to perform or comply with any of the terms hereof or of any of the Loan documents executed in connection herewith, or any inaccuracy in any representation or warranty made by the Mortgagor herein or in any of the Loan Documents executed in connection herewith, (e) any necessity to defend any of the right, title or interest conveyed by this Mortgage, (f) the performance of any labor or services or the furnishing of any materials or other property in respect of the Mortgaged Property or any part thereof, (g) any subsidence or erosion of any part of the surface of the Mortgaged Property, including any shoreline or any bank of any river, stream, creek, lake, ocean or other water source, or (h) the location or existence of asbestos or any toxic or hazardous waste, chemicals, materials or substance on, at, in or under the Mortgaged Property or any part thereof. If any action, suit or proceeding is brought against the Mortgagee, or any of its officers, directors, agents or employees, for any such reason, the Mortgagor, upon the request of such party, will, at the Mortgagor's expense, cause such action, suit or proceeding to be resisted and defended by counsel satisfactory to the Mortgagee or such person. Any amounts payable to an indemnified party under this Section which are not paid within ten (10) days after written demand therefor shall bear interest at the default rate of interest provided in the Note from the date of such demand, and such amounts, together with such interest, shall be indebtedness secured by this Mortgage. The obligations of the Mortgagor under this Section shall survive any defeasance of the Mortgage. 24. HAZARDOUS MATERIALS. The Mortgagor agrees that it will not use, generate, store or dispose of Hazardous Materials on the Mortgaged Property. For purposes hereof, "hazardous materials" include (but are not limited to) materials defined as "hazardous waste" under the Federal Resource Conservation and Recovery Act and similar state laws, or as "hazardous substances" under the Federal Comprehensive Environmental Response, Compensation and Liability Act and similar state laws. Hazardous materials include (but are not limited to) solid, semi -solid, liquid or gaseous substances that are toxic, ignitable, corrosive, carcinogenic or otherwise dangerous to human, plant or animal health and well-being. Examples of hazardous waste include paints, solvents, chemicals, petroleum products, batteries, transformers, and other discarded man-made materials with hazardous characteristics. The Mortgagee shall have all remedies at law and equity for failure of the Mortgagor to carry out the Page 10 of 12 foregoing obligation, including but not limited to specific performance, damages, reasonable attorneys' fees and court costs. This provision shall survive payment of the Note and termination of this Mortgage. 25. REPRESENTATIONS AND WARRANTIES. In order to induce the Mortgagee to make the Loan evidenced by the Note, the Mortgagor represents and warrants that: (a) there are no actions, suits or proceedings pending or threatened against or affecting the Mortgagor or any portion of the Mortgaged Property, or involving the validity or enforceability of this Mortgage or the priority of its lien, before any court of law or equity or any tribunal, administrative board or governmental authority, and the Mortgagor is not in default under any other indebtedness or with respect to any order, writ, injunction, decree, judgment or demand of any court or any governmental authority; (b) the execution and delivery of the Note, this Mortgage and all other Loan Documents do not and shall not (i) violate any provisions of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award applicable to the Mortgagor or any other person executing the Note, this Mortgage or other Loan Documents, nor (ii) result in a breach of, or constitute a default under, any indenture, bond, mortgage, lease, instrument, credit agreement, undertaking, contract or other agreement to which the Mortgagor or such other person is a party or by which either or both of them or their respective properties may be bound or affected; (c) the Note, this Mortgage and all other Loan Documents constitute valid and binding obligations of the Mortgagor and any other person executing the same, enforceable against the Mortgagor and such other person(s) in accordance with their respective terms; (d) there is no fact that the Mortgagor and any guarantor(s) of the Loan have not disclosed to the Mortgagee in writing that could materially adversely affect their respective properties, business or financial conditions or the Mortgaged Property or any other collateral for the Loan; (e) the Mortgagor and any guarantor(s) of the Loan have duly obtained all permits, licenses, approvals and consents from, and made all filings with, any governmental authority (and the same have not lapsed nor been rescinded or revoked) which are necessary in connection with the execution and delivery of this Mortgage and any other Loan Document, the making of the Loan, the performance of their respective obligations under any Loan Document, or the enforcement of any Loan Document; and that all such representations and warranties shall survive the closing of the Loan and any bankruptcy proceedings. 26. SEVERABILITY OF INVALID PROVISIONS. In the event any provision of the Note and or this Mortgage should be held unconstitutional, illegal or unenforceable for any reason, such provision shall not affect, alter, or otherwise impair any other provision of the Note and or this Mortgage. 27. NO WAIVER. It is expressly agreed and understood that a waiver by the Mortgagee of any right or rights conferred to it hereunder with regard to any one transaction or occurrence shall not be deemed a waiver of such right or rights to any subsequent transaction or occurrence. It is further agreed that any forbearance or delay by the Mortgagee in the enforcement of any right or remedy hereunder shall not constitute or be deemed a waiver of such right or remedy. 28. GOVERNING LAW AND VENUE. This Mortgage shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Mortgage must be Page 11 of 12 brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami -Dade County is not convenient. 29. HEADINGS. The headings of the articles, sections, paragraphs and subdivisions of this Mortgage are for convenience and ease of reference only, and are not to be considered a part hereof, and shall not limit or otherwise affect any of the terms or provisions hereof. 30. GENDER AND NUMBER. In this Mortgage and the Note it secures, the singular shall include the plural and the masculine shall include the feminine and neuter. 31. PARTIES BOUND; NO ORAL MODIFICATIONS. Each and every of the terms, covenants and conditions contained herein shall be binding upon the parties hereto and their successors, heirs, assigns and devisee. This Mortgage is not subject to modification other than by a written document or instrument executed by the party or parties to be charged with such modification. 32. CAPITALIZED TERMS. All capitalized terms not defined herein shall have the meanings provided in the Loan Agreement and the Exhibits thereto. 33. WAIVER OF TRIAL BY JURY. THE MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS MORTGAGE, OR ANY OF THE LOAN DOCUMENTS OR THE FINANCING CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE EXTENDING THE LOAN SECURED BY THIS MORTGAGE. [SIGNATURE ON FOLLOWING PAGE] Page 12 of 12 IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand and seal the day and year first above written. WITNESSES: Print Name: l rr...0A Print Name. L.v .: (:v%l�wv- STATE OF FLORIDA 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 ay Print Name: Tony Del P'ozzo Title: Vice President Date: ACKNOWLEDGMENT COUNTY OF MIAMI-DADE ) SS: ��-- The foregoing instrument v s acknowledged .bef re me by means of physical presence or online notarization this 3� ay of ., 2022 by Tony Del Pozzo, as Vice O l� �-S President of The Gallery at West Brickell Manager, LLC, a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liability company, who is personally known, to me or has produced as identification. ttntRr.+t.0 S"^:+:r?'rC �FG.-0.r7rA.T�.0.i.:�faui,nD VANESSAPILOTO •*_ MY COMMISSION # HH 213353 EXPIRES: February 10, 2028 Notary Public, State of Florida at large EXHIBIT A Legal Description of The Property Parcel 1- Leasehold 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. EXHIBIT B Permitted Encumbrances on the it lortgag,ed Propertv All permitted encumbrances on the Property are described in that certain Title Insurance Commitment Order Number ) issued by Fidelity National Title Insurance Company, effective as of , as endorsed. at 8:00 a.m. EXHIBIT "G" FORM OF COVENANT Prepared by, and after recording return to: Victoria Mendez, Esq. City Attorney, City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 201 Southwest 10 Street, Miami, Florida 33130 DECLARATION OF RESTRICTIVE COVENANTS FOR THE GALLERY AT WEST BRICKELL This Declaration of Restrictive Covenants for The Gallery at West Brickell ( "Covenant") made this day of _ , 2022 ("Effective Date") by THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company ("Project Sponsor"), is in favor of the CITY OF MIAMI, a municipal corporation of the State of Florida ("City"). RECITALS WHEREAS, the Project Sponsor is the long term lessee of the property legally described in Exhibit "A," attached hereto and incorporated herein ("Property"); and WHEREAS, the Project Sponsor hereby agrees and covenants that the following described property shall be subject to the provisions, covenants, and restrictions contained herein; and WHEREAS, this Covenant is made for the express benefit of the City of Miami, a Florida municipal corporation ("City"), and it shall remain in full force and effect until released by the City; and WHEREAS, the City has loaned three million dollars ($3,000,000.00) in HOME Investment Partnerships Program ("HOME") funds to Project Sponsor ("Loan") in order to develop the Project, as more particularly described below; and WHEREAS, the Project Sponsor is developing a project that will increase the supply of rental housing units for Very Low Income Households in the community known as Brickell (hereinafter referred to as the "Project"), which consists of the new construction of a 29-floor high- rise residential building on the Property; and WHEREAS, the Project consists of a total of four hundred sixty five (465) residential apartment units, of which a total of ninety-three (93) residential apartment units are HOME - assisted units (the "HOME -Assisted Units"); and WHEREAS, the HOME -Assisted Units are all subject to the terms, covenants, and restrictions contained herein; and WHEREAS, the City's lending of funds for the Project is subject to that certain HOME Investment Partnerships Program Loan Agreement for The Gallery at West Brickell ("Loan Page 1 of 7 Agreement") and the other loan documents of even date herewith between the City and the Project Sponsor (collectively the "Loan Documents"); and WHEREAS, Project Sponsor desires to make a binding commitment to assure that the HOME -Assisted Units and the Property in general are maintained and operated in accordance with the provisions of the Loan Documents and this Covenant; and WHEREAS, Project Sponsor, as a condition for receiving the Loan funds to construct the Project is required to record in the Public Records of Miami -Dade County, Florida, this Covenant obligating the Project Sponsor, its successors, transferees, and assigns to maintain and operate the Property in accordance with this Covenant and the Loan Documents; and WHEREAS, the Project Sponsor hereby declares that this Covenant shall be and is a covenant running with the Property and, unless released by the City, is binding on the Property for the entire Affordability Period, as defined herein, and is not merely a personal covenant of the Project Sponsor; and NOW THEREFORE, Project Sponsor voluntarily covenants and agrees that the HOME- Assisted Units and the Property in general shall be subject to the following restrictions that are intended and shall be deemed to be covenants running with the land and binding upon Project Sponsor, and its heirs, transferees, successors and assigns as follows: Section 1. Recitals: The recitals and findings set forth in the preamble of this Covenant are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. Use of Property: There shall be a total of ninety-three (93) HOME - Assisted Units in the Project that shall remain Affordable for eligible tenants in compliance with this Covenant and the Rent Regulatory Agreement between City and Project Sponsor of even date herewith. All ninety-three (93) HOME Assisted Units shall remain Affordable to Very Low Income Households for the period of time commencing on the date of the Close -Out of the Project and ending thirty (30) years thereafter (the "Expiration of the Affordability Period"). The ninety-three (93) HOME -Assisted Units shall consist of fifty-four (54) studio/one bathroom apartment units, and thirty-nine (39) one bedroom/one bathroom apartment units. "Very Low Income" shall mean a household whose annual income does not exceed fifty percent (50%) of the median income for the area, as determined by the U.S. Department of Housing and Urban Development, with adjustments and certain exceptions as provided in 24 CFR Part 92. The period of time that the Assisted Units must remain Affordable, in compliance with 24 CFR §92.252, 24 CFR §92.254, this Covenant, and the Rent Regulatory Agreement. The Affordability Period for this Project is thirty (30) years, commencing on the Close -Out of the Project. Section 3. Term of Covenant: This Covenant is a covenant running with the land. This Covenant shall remain in full force and effect and shall be binding upon the Project Sponsor, its successors and assigns from the Effective Date until the Expiration of the Affordability Period. Upon the Expiration of the Affordability Period, this Covenant shall immediately lapse and be of no further force and effect without the necessity of any other written document or instrument. Notwithstanding the foregoing, upon the Expiration of the Affordability Page 2 of 7 Period, the City shall prepare for recording an instrument evidencing the expiration of and other termination of this Covenant in the Public Records of Miami -Dade County, Florida. Section 4. Prohibited. Conveyances: Except as provided in the Loan Documents, including the Permitted Senior Financing described therein, the Project Sponsor covenants and agrees not to encumber or convey its interest in the Project, Property, or any portion thereof, without City's prior written consent as required by the Loan Agreement. For the purposes of this Covenant, any change in the ownership or control of the Project Sponsor, which is not permitted under the Loan Documents, shall be deemed a conveyance of an interest in the Project. Section 5. Repayment`. Upon Default: The Project Sponsor covenants and agrees that in the event (i) of the sale or conveyance of any interest in the Project and/or the Property without City's prior written consent as required by the Loan Documents (except as otherwise provided in the Loan Documents), or (ii) that the Project Sponsor ceases to exist as an organization, (iii) or there is a material breach of a term to this Covenant (and such breach is not cured in compliance with the terms of the Loan Agreement), the Project Sponsor shall immediately make payment to the City in an amount equal to the full amount of Loan funds disbursed and outstanding, with interest thereon as provided in the Note, all Program Income (as defined in 24 CFR Part 92) derived from or in connection with the Project, the Property and/or the Loans, and all unpaid fees, charges and other obligations of the Project Sponsor due under any of the HOME Loan Documents. Section 6. .Inspection_ and Enforcement:: It is understood and agreed that any official inspector of the City shall have the right any time during normal working hours to enter and investigate the use of the Property to determine whether the conditions of this Covenant are in compliance, subject to the rights of residential tenants under their leases. Section 7. Amendment and Modification:; This Covenant may be modified, amended, or released as to any portion of the Property by a written instrument executed by the City and the Project Sponsor or their respective successors -in -interest. Should this instrument be modified, amended, or released, the City Manager, or such person who hereafter is delegated such authority, shall execute a written instrument in recordable form to be recorded in the Public Records of Miami -Dade County, Florida, effectuating and acknowledging such modification, amendment, or release. Section 8. Definitions: All capitalized terns not defined herein shall have the meanings provided in the HOME Loan Agreement. Section 9. Severability: Invalidation of one of the provisions of this Covenant by judgment of Court shall not affect any of the other provisions of the Covenant, which shall remain in full force and effect. Section 10. Recordation:. This Covenant shall be filed of record among the Public Records of Miami -Dade County, Florida, at the sole cost and expense of the Project Sponsor. Section 11. Deed Restriction/Covenant. Running with the Land. Any and all requirements of the laws of the State of Florida that must be satisfied in order for the provisions of this Covenant to constitute a deed restriction and covenant running with the land shall be Page 3 of 7 satisfied in full, and any requirements or privileges of estate are intended to be satisfied, or in the alternate, an equitable servitude has been created to insure that these restrictions run with the land. For the term of this Covenant, each and every contract, deed, or other instrument hereafter executed conveying the Property or portion thereof shall expressly provide that such conveyance is subject to this Covenant, provided, however, that the covenants contained herein shall survive and be effective regardless of whether such contract, deed, or other instrument hereafter executed conveying the Property or portion thereof provides that such conveyance is subject to this Covenant. Section 12. G'overning Law :and Venue. This Covenant shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Covenant must be brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami -Dade County is not convenient. Section 13. Floating Uiiits: HOME -Assisted Units shall be handled as "Floating Units," as described in 24 CFR 92.252(j): "In a project containing HOME -assisted and other units, the participating - jurisdiction may designate fixed or floating HOME units. This designation must be made at the time of project commitment. Fixed units remain the same throughout the period of affordability. Floating units. are changed to maintain conformity with the requirements of this section during the period of affordability so that the total number of housing units meeting the requirements of this section remains the same, and each substituted unit is comparable in terms of size, features, and number of bedrooms to the originally designated HOME -assisted unit." Section 14. Costs, Including Attorney!s':tees. In the event of litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Covenant, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. [Signature Page Follows] Page 4 of 7 IN WITNESS WHEREOF, the Project Sponsor has caused this Declaration of Restrictive Covenants to be executed by its duly authorized officers and the corporate seal to be affixed hereto on the day and year first above -written. PROJECT SPONSOR: THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company WITNESSES: By: The Gallery at West Brickell Manager, LLC, a Florida limited liability company, its manager Print Name: 1+-0'rR o» iietS kt, By: Print Name: Li 'Flu; ',L.:A.-. STATE OF FLORIDA `79.x Print Name: Tony Del Pozzo Title: Vice President Date: ACKNOWLEDGMENT } COUNTY OF MIAMI-DADE } SS: The foregoing instrument jas ackno led ed b f re me by means of ©" physical presence or El online notarization this �' My of 2022 by Tony Del Pozzo, as Vice President of The Gallery at West Brickell Manager, LLC, a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liability company, who is personally known to i or has produced as identification. \ alma. VANESSA PILOTO MY COMMISSION # NH 213353 EXPIRES: February 15, 2026 Print Name: CLIA6SiCt I `(- J S Notary Public, State of Florida at large Page 5 of 7 ATTEST: 011CMALletAir odd Hanno Date: CITY OF MIAMI, a municip • 1 corporation of the State of Florida Bv. Arthur oriega V L it Mana'er APPROV. AS TO dNCE APPROVED AS TO FORM AND REQUIREMENTS ORRE • sOf Anri-Marie Sha e Victol Mendez Director of Ris Mana_ement City Attorney Page 6 of 7 -(4-z Exhibit A Legal Description :Of The Property Parcel 1- Leasehold 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. Page 7 of 7 # 10795089 v5 EXHIBIT "H" RENT REGULATORY AGREEMENT Prepared by, and after recording, return to: Victoria Mendez, Esq. City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 201 Southwest 10 Streets Miami, Florida 33130 RENT REGULATORY AGREEMENT FOR THE GALLERY AT WEST BRICKELL THIS RENT REGULATORY AGREEMENT ("Regulatory Agreement") is entered into this day of _ , 2022, between THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company ("Borrower") and the CITY OF MIAMI, a municipal corporation of the State of Florida ("City"). The execution of this Regulatory Agreement by the Borrower is in connection with the loan of HOME Investment Partnerships Program ("HOME") funds ("Loan"), secured by certain loan documents to be executed in connection therewith ("Loan Documents"), for the construction of that certain project known as The Gallery at West Brickell ("Project"). The Project will be a twenty nine -story high-rise building located at 201 Southwest 10 Street, Miami, Florida 33130 ("Property"). In accordance with the requirements set forth in (i) that certain HOME Loan Agreement executed by the Borrower and the City for the HOME funds (the "Loan Agreement"), and (ii) the other Loan Documents of even date therewith between the Borrower and the City, ninety-three (93) Project units are considered "HOME -Assisted Units" and all of the HOME -Assisted Units are subject to the restrictions provided herein. The ninety-three (93) HOME -Assisted Units shall be "floating" units, meaning that they are not specifically designated units, but that any ninety- three (93) of the total four hundred sixty five (465) Project units shall be, at any one time, in compliance with the requirements set forth herein. Borrower hereby agrees to the following terms, conditions and covenants until the Expiration of the Affordability Period: (1) Occupancy Requirements. The HOME -Assisted Units shall be made available to tenants who qualify under the occupancy requirements of 24 CFR Part 92 (hereinafter referred to as the "Regulation"). The HOME -Assisted Units are subject to the restrictions provided therein and herein, including, but not limited to, the following: All ninety-three (93) HOME Assisted Units shall remain Affordable to Very Low Income Households for the period of time commencing on the date of the Close -Out of the Project and ending thirty (30) years thereafter (the "Expiration of the Affordability Period"). As defined in the Regulation, Very Low -Income Households have annual incomes -that do not exceed fifty percent (50%) of area median income, as determined by the U.S. Department of Housing and Urban Development ('HUD") and adjusted for family size. (2) Maximum Rent Levels. The rents charged on all of the HOME -Assisted Units shall be subject to the Regulation. Gross monthly rent charged on HOME -Assisted Units occupied by tenants identified as Very -Low Income Households are subject to the maximum Page 1 of 9 LOW HOME Rent published annually by HUD for each locality. The LOW HOME Rent maximums for leases signed in Miami, Florida effective as of June 15, 2022 are as follows: No. of HOME- No. of -Bedrooms No. of Bathrooms Low HOME Rent Maximum Assisted Units 54 (50% AMI) Studio 1 $853 39 (50% AMI) 1 1 $914 The foregoing maximum rents include tenant paid utilities. Maximum rents will be reduced for the amount of the applicable HUD Utility Allowance for any utilities paid by the tenant. In no event will the monthly rent on a HOME -Assisted Unit exceed thirty percent (30%) of the applicable percentage of area median income set forth in Paragraph 1 above. Rents shall not be adjusted for changes in income or HUD published maximums until lease renewal. In the event that the HOME Assisted Units are also benefitted from a federal or state rent subsidy program, then the rents outlined above may be set at the applicable rent standard established by that rent subsidy program in compliance with 24 CFR 252 (b)(2). (3) Income Re -certification. Tenant income for HOME -Assisted Units shall be certified by the Borrower annually on the anniversary of each tenant's lease and maintained in the tenant file, subject to inspection by the City, in accordance with this Regulatory Agreement. (4) Deposits and Pre -payments. Borrower shall not require, as a condition of occupancy or leasing of any HOME -Assisted Unit, any other consideration or deposit from the tenant, except for the prepayment of one month's rent and plus a security deposit not to exceed one additional month's rent. (5) Prohibited Lease Provisions. The Borrower's leases for HOME -Assisted Units shall not contain any of the following provisions: a. Agreement to be sued. A tenant lease may not contain a provision whereby the tenant agrees to be sued, admits guilt or consents to judgment in favor of the landlord in a lawsuit brought in connection with the lease. b. Agreement regarding treatment of property. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may take, hold or sell personal property of the tenant household without notice and a court decision. This prohibition does not apply to personal property remaining in the HOME -Assisted Unit after the tenant has moved out. Page 2 of 9 c. Waiver of notice. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may institute a lawsuit without notice to the tenant. d. Waiver of legal proceedings. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may evict the tenant or a household member without instituting a civil court proceeding in which the tenant has the opportunity to present a defense or before a court decision on the rights of the parties. e. Waiver of a jury trial. A tenant lease may not contain a provision whereby the tenant agrees to waive any right to a jury trial. f. Waiver of right to appeal a court decision. A tenant lease may not contain a provision whereby the tenant agrees to waive the tenant's right to appeal or otherwise challenge in court a court decision in connection with the lease. g. Agreement to pay legal costs, regardless of outcome. A tenant lease may not contain a provision whereby the tenant agrees to pay attorney's fees or other legal costs even if the tenant wins the court proceeding brought by the landlord against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. h. Excusing owner from responsibility. A tenant lease may not contain a provision whereby the tenant agrees not to hold the landlord or the landlord's agents legally responsible for any action or failure to act, whether intentional or negligent. (6) Annual Reporting. Each year, on the anniversary of the issuance of the certificate of occupancy/certificate of completion for the Project, and at other times at the request of the City, the Borrower shall furnish occupancy reports in a form approved by the City, and shall provide the City with such other information as may be requested by the City relative to income, expenses, assets, liabilities, contracts, operations, and condition of the Project and/or the HOME - Assisted Units. (7) Inspections. The Borrower agrees to submit the HOME -Assisted Units to an annual re -inspection to insure continuing compliance with all applicable housing codes, federal and local housing quality standards and regulatory requirements. The Borrower will be furnished a copy of the results of each inspection within thirty (30) days of completion, and will be given thirty (30) days thereafter to correct any deficiencies or violations. At any time other than an annual inspection, the City may, in its discretion, inspect any HOME -Assisted Unit. The Borrower and the tenant will be provided with the results of the inspection and the time and the method of compliance and corrective action that must be taken. (8) Record -keeping. The Property, the Project, including the HOME -Assisted Units, equipment, buildings, plans, offices, apparatus, devices, books, contracts, records, documents, Page 3 of 9 and other papers relating thereto shall at all times be maintained in reasonable condition for proper audit and shall be subject to examination and inspection at any reasonable time by the City. Borrower shall keep copies of all written contracts and other instruments which affect the HOME -Assisted Units, all or any of which may be subject to inspection and examination by the City. Specifically, the foregoing includes all records, calculations and information necessary to support tenant occupancy eligibility and monthly rental charges in addition to all leases and written notices to tenants with respect to the terms of this Regulatory Agreement, as required by this Regulatory Agreement. (9) Default. Upon the occurrence of a violation of any provision of this Regulatory Agreement, the City shall give written notice thereof to the Borrower, by registered or certified mail, addressed to the Borrower's address as stated in this Regulatory Agreement, or to such other address(es) as may subsequently, upon appropriate written notice thereof to the City, be designated by the Borrower. In the case of a Borrower which is a corporation or partnership, notices may also be sent by the City to the address of the corporation's chief executive officer or to all general partners, as applicable, at the City's discretion. If such violation is not corrected to the City's satisfaction, within thirty (30) days after the date such notice is mailed, or within such further time as the City reasonably determines is necessary to correct the violation, without further notice the City may declare a default under this Regulatory Agreement and under the Loan Agreement and the Loan Documents executed in connection therewith, and may proceed to initiate any or all remedies at law or in equity provided for in the event of a default under such agreements and Loan Documents. All notices under this Regulatory Agreement shall be in writing and addressed as follows: To Borrower: With Copy to: To City: With Copy To: The Gallery at West Brickell, LLC 2850 Tigertail Ave, Suite 800 Miami, FL 33133 Brian J. McDonough Stearns Weaver Miller Weissler Alhadeff and Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, FL 33130 . 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 Victoria Mendez Office of the City Attorney, City of Miami 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130-1910 Page 4 of 9 (10) Fines. Upon the occurrence of a violation of any provision of this Regulatory Agreement, and regardless of the nature of the violation, the City will assess a flat monthly fine in the amount of Fifty Dollars and no/cents_($50.00) per HOME -Assisted Unit that is the subject of such violation up to a maximum of Five Thousand Dollars and no/cents ($5,000.00) per month, for each month the violation is not corrected, and pay same over to the City. The remedy for violation provided in this section of this Regulatory Agreement is cumulative with any and all remedies at law or in equity provided in the event of a default under this Regulatory Agreement and/or the Loan Documents. (11) Tenant Notice. Borrower agrees during the term of this Regulatory Agreement, to furnish each tenant of a HOME -Assisted Unit, at the execution or renewal of any lease or upon initial occupancy, if there is no lease, with a written notice in the following form: The rent charged for your apartment and the services included in that rent are subject to a Rent Regulatory Agreement between the landlord and the City of Miami, for the term of the Affordability Period. A copy of the Rent Regulatory Agreement will be made available by the landlord to each tenant upon request. If there is no lease for a HOME -Assisted Unit, Borrower shall maintain a file copy of such notice delivered to the tenant, with a signed acknowledgement of receipt by the tenant. All such notices to tenants will be made available for inspection upon request by the City. (12) No Conflict with Loan Documents. The provisions of this Regulatory Agreement are in addition to, and do not amend, alter, modify, or supersede in any respect, the provisions of the mortgage and/or any of the other Loan Documents executed in connection with the Loan. (13) Partial Invalidity. The invalidity of any paragraph or provision of this Regulatory Agreement shall not affect the validity of the remaining paragraphs and provisions hereof. (14) Term. This Regulatory Agreement shall be effective until the Expiration of the Affordability Period. On the Expiration of such period, this Regulatory Agreement shall immediately lapse and be of no further force and effect without the necessity of any other written document or instrument. Notwithstanding the foregoing, upon such Expiration, the Borrower shall be permitted to prepare and record an instrument evidencing the expiration of and other termination of this Regulatory Agreement in the Public Records of Miami -Dade County, Florida. (15) Definitions. All capitalized terms used herein and not otherwise defined shall have the meanings provided in the Regulation and/or in the Loan Agreement. (16) Exclusion of Commercial Spaces. Notwithstanding anything to the contrary in this Regulatory Agreement or in the Loan Agreement, it is expressly understood and agreed that the Regulation and all other terms, conditions, restrictions, and requirements of this Regulatory Agreement shall exclude, and shall not apply to, or otherwise restrict or affect, the operation, maintenance, leasing, improvement, base rent and other additional rent determination and collection, and all other aspects of the Borrower's management, leasing, and ownership of all or any portion of the commercial and retail spaces located in the Project, if applicable. , Page 5 of 9 (17) Severability. Invalidation of one of the provisions of this Regulatory Agreement by judgment of Court shall not affect any of the other provisions of the Regulatory Agreement, which shall remain in full force and effect. (18) Recordation. This Regulatory Agreement shall be filed of record among the Public Records of Miami -Dade County, Florida, at the sole cost and expense of the Borrower. (19) Governing Law and Venue. This Regulatory Agreement shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Regulatory Agreement must be brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami -Dade County is not convenient. (20) Counterparts. This Regulatory 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 Regulatory Agreement. 'The parties shall be entitled to sign and transmit an electronic signature of this Regulatory 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 electronic signature agrees to promptly execute and deliver to the other parties an original signed Regulatory Agreement upon request. (21) Attorney's Fees. In the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Regulatory Agreement, each party shall be responsible for its own attorney's fees; costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. [Signature Page Follows] Page 6 of 9 THIS REGULATORY AGREEMENT has been executed and delivered as of the day and year first above written. WITNESSES: PROJECT SPONSOR: 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 P By: 9t'C, Print Name: 14-ceiso^ 14er3hcv,4Z Print Name: Tony Del Pozzo Title: Vice President Date: Print Name: L., "r( vi Laid' ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE ) SS: The foregoing instrument m ackno 'edged be'ore me by means of Q'physical presence or 0 online notarization this day ofllo/(a Y , 2022 by Tony Del Pozzo, as Vice President of The Gallery at West Brickell Manager, LLC, a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liability company, who is personally known to me or has produced as identification. VANESSAPILOTO aN, MY COMMISSION # HH 213353 � P EXPIRES: February 15, 2026 JJd Print Name: f OAncet, P1t0 t Page 7 of 9 THIS REGULATORY AGREEMENT has been executed and delivered as of the day and year first above written. ATTEST: Todd B. Hannon City Clerk Date: 9l�/aoaa� APPROVED AS TO FORM AND CORRECTNESS: Victoria I0 ndez City Attorney CITY: CITY OF MIAMI, a municipal corporation of the State of Florida By: Arthur No ga V. City Manager Page 8 of 9 Exhibit A Legal Description Of The Property Parcel 1- Leasehold 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. Page 9 of 9 #10795750 v4 EXHIBIT "I" SIGNAGE REQUIREMENTS Font size: 86 pt Building Better Neighborhoods Name of Project second line third and final Francis Suarez Mayor Alex Diaz de la Portilla District 1 Ken Russell District 2 Joe Carollo District 3 Manolo Reyes District 4 Christine King District 5 Arthur Noriega, V City Manager Project Construction Cost: X $ , `,XXX,>0<X City Contribution $ X,XXX,XXX Font size: 230 pt Font size: 314 pt Font size: 168 pt www.miamigov.com Font size: 192 pt 305.416.2080 Housing & Com unity Development This project is located in District X represented by City of Miami Commissioner INSERT NAME HERE 4' x 8' Pressure Sensitive 2 mil cast vinyl overmounted with 3 mill mylar and mounted to 1/2"mdo with varnished or painted back Font: Akzidenz Grotesk • Pantone Reflex Blue C 1 ▪ Pantone 117 C • Pantone 871 C • Black Font size: 175 pt Font size: 165 pt Font size: 270 pt EXHIBIT "J" ADDITIONAL INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE CONSTRUCTION REQUIREMENTS HOME LOAN AGREEMENT FOR THE GALLERY AT WEST BRICKELL, LLC I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an Additional Insured Contingent and Contractual Liability Premises and Operations Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as additional insured Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 2,000,000 Aggregate $ 2,000,000 City of Miami listed as an additional Insured. Coverage is excess follow form over all liability polices contained herein. V. Payment and Performance Bond $TBD City of Miami listed as Obligee VI. Builders' Risk Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $25000 All other Perils 5% maximum on Wind/Hail and Flood City of Miami listed as loss payee A. Coverage Extensions: As provided by carrier The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. SCHEDULE A PERMITTED SENIOR FINANCING (i) Bond loan from the Housing Authority of Miami -Dade County, Florida ("HFA") in the amount of $101,000,000.00, evidenced by a promissory note in favor of the HFA, and secured by a mortgage in favor of the HFA, as assigned to The Bank of New York Mellon Trust Company, N.A. (ii) Construction loan from JPMorgan Chase Bank, N.A. ("Chase") in the amount of $44,000,000, evidenced by a promissory note in favor of Chase and secured by a mortgage in favor of Chase. #10795722 v7 ALLONGE • ALLONGE TO PROMISSORY NOTE DATED k. _/;;1'; 2022 IN THE PRINCIPAL AMOUNT OF THREE 1 LION AND NO/100 DOLLARS ($3,000,000.00) EXECUTED BY THE GALLERY AT WEST BRICKELL, LLC, A FLORIDA LIMITED LIABILITY, PAYABLE TO RUDG INVESTOR, LLC, A FLORIDA LIMITED LIABILITY COMPANY For value received, pay to the order of CITY OF MIAMI, a Florida municipal corporation, its successors and assigns. Dated as of the #10933626 vl RUDG INVESTOR, LLC, a Florida limited liability company By: qd. Name: Tony Del Pozzo Title: Vice President [Allonge to Placeholder Promissory Note] AMENDED AND RESTATED PROMISSORY NOTE (HOME FUNDS) FOR THE GALLERY AT WEST BRICKELL, LLC Miami, Florida $3,000,000.00 December (, 2022 The following Amended and Restated Promissory Note (the "Note") by THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company ("Maker") in favor of CITY OF MIAMI, a Florida municipal corporation ("Lender") amends, restates and consolidates that certain Promissory Note (the "Original Note") in the original principal amount of Three Million and 00/100 Dollars ($3,000,000.00) dated September 7, 2022, executed by Maker in favor of RUDG Investor, LLC, a Florida limited liability company (the "Assignor"). The Original Note was assigned by the Assignor to Lender pursuant to that certain Allonge and Assignment of Mortgage and Promissory Note dated of even date herewith. FOR VALUE RECEIVED the undersigned, Maker, at 2850 Tigertail Ave, Suite 800, Miami, FL 33133, promises to pay to the order of Lender, at 444 S.W. 2nd Avenue, Miami, Florida 33130, or such other location or address as the Lender may direct from time to time, the principal sum of Three Million and 00/100 Dollars ($3,000,000.00), together with interest thereon on funds outstanding as indicated on Attachment 1 hereto. This Promissory Note evidences a Loan from the Lender to the Maker for development costs for The Gallery at West Brickell, a rental Project, as described more fully in that certain HOME Loan Agreement between the Maker and the Lender of even date herewith ("HOME Loan Agreement"). All capitalized terms not defined herein shall have the meanings provided in the HOME Loan Agreement and the exhibits thereto. This Promissory Note is secured by that certain Amended and Restated Leasehold Mortgage and Security Agreement ("HOME Mortgage") and the other Loan Documents of even date herewith executed in favor of the Lender, relating to real property located at 201 Southwest 10 Street, Miami, Florida 33130 ("Property"). All sums advanced hereunder together with accrued interest thereon and all other sums due hereunder shall become immediately due and payable, without notice or demand, upon the occurrence of any one or more of the following events of default, subject to any applicable cure period as provided in the HOME Loan Agreement: (a) the Maker's failure to promptly pay in full any payment of principal or interest due under this Promissory Note; (b) the Maker's failure to pay any insurance premium when due; (c) the dissolution, termination of existence, insolvency of, business failure, appointment of a receiver for any part of the property or assignment for the benefit of creditors by, or the commencement of any proceedings under any bankruptcy or insolvency laws, by or -against any maker hereof which shall continue beyond any applicable cure period set forth in the HOME Loan Agreement; (d) any uncured breach, following the giving of notice of Page 1 of 6 breach and the expiration of any applicable cure period(s), by the Maker of any of the terms, covenants or conditions set forth in the HOME Loan Agreement, the HOME Mortgage, the Declaration of Restrictive Covenants, or any of the other Loan Documents executed in connection therewith, or any other instrument, document or agreement which secures, collateralizes or otherwise pertains to the Loan evidenced by this Promissory Note; or (e) upon the occurrence of an Event of Default as provided in the HOME Loan Agreement. Upon the occurrence of any of the foregoing events, and in addition to any other remedies provided in the Home Loan Agreement, the amount of the Funds disbursed, together with interest accrued thereon at the rate provided herein, all Program Income (as defined in 24 CFR Part 92) and all unpaid fees, charges and other obligations of the Maker due under any of the Loan Documents, shall, at Lender's option, be immediately due and payable. Any property of any maker hereof now or hereafter in the possession of the Lender, may at all times be held and treated as collateral and security for the payment of this Promissory Note and all other indebtedness or liability, direct or indirect, joint or several, absolute or contingent, now existing or hereafter created, acquired or contracted, of the Maker to the Lender. The Lender may apply or set-off any funds or other sums against said liabilities at any time in the case of the Maker(s). No delay or omission on the part of the Lender in the exercise of any right hereunder shall operate as a waiver of such right or of any other right under this Promissory Note. A waiver by the Lender of any right or remedy conferred to it hereunder on any one occasion shall not be construed as a bar to, or waiver of, any such right and/or remedy as to any future occasion. The Maker agrees that in the event each and every of the terms and conditions of this Promissory Note or any instrument which secures or collateralizes the payment of the sums hereunder is not duly performed, complied with, or abided by, subject to applicable notice and cure period(s) set forth in the HOME Loan Agreement, the whole of said indebtedness then outstanding shall thereupon, at the option of the Lender, become immediately due and payable, as provided in the HOME Loan Agreement. If this Promissory Note becomes in default and is placed in the hands of an attorney for collection, then each Party hereto shall bear its own respective costs, expenses, and attorney's fees. The indebtedness evidenced by this Promissory Note is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by (i) the Promissory Note in the original principal amount of $101,000,000.00 issued by Maker and made payable to the Housing Authority of Miami -Dade County, Florida, and together with its successors and assigns, including, without limitation, The Bank of New York Mellon Trust Company, N.A. (the "Senior Lender"), to the extent and in the manner provided in that certain Mortgage Subordination Agreement dated as of September 1, 2022 and recorded in Official Records Book 33374, Page 179 of the Public Records of Miami -Dade County, Florida, between the Senior Lender, Chase (as defined herein) and Assignor, and consented to by the Maker (the "Subordination Agreement") and (ii) the Promissory Note in the original principal amount of $44,000,000.00 issued by Maker and made payable to JPMorgan Chase Bank, N.A. ("Chase"), to the extent and in the manner provided in the Subordination Agreement. The Mortgage and other documents securing this Promissory Note are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions as more fully set forth in the Subordination Agreements. The rights and remedies of the Lender and Page 2 of 6 each subsequent holder of this Promissory Note under the Mortgage securing this Promissory Note are subject to the restrictions and limitations set forth in the Subordination Agreements. Each subsequent holder of this Promissory Note shall be deemed, by virtue of such holder's acquisition of this Promissory Note, to have agreed to perfonn and observe all of the terms, covenants and conditions to be performed or observed by the "Subordinate Lender" under the Subordination Agreements. The Maker and all persons now or hereafter becoming obligated or liable for the payment hereof, do jointly and severally waive demand, notice of non-payment, protest, notice of dishonor and presentment. The Maker does not intend or expect to pay, nor does the Lender intend or expect to charge, collect or accept, any interest greater than the highest legal rate of interest which may be charged under any applicable law. Should the acceleration hereof or any charges made hereunder result in the computation or earning of interest in excess of such legal rate, any and all such excess shall be and the same is hereby waived by the Lender, and any such excess shall be credited by the Lender to the balance hereof. Each Maker, endorser, or any other person, firm or corporation now or hereafter becoming liable for the payment of the Loan evidenced by this Promissory Note, hereby consents to any renewals, extensions, modifications, releases of security or any indulgence shown to or any dealings between the Lender and any party now or hereafter obligated hereunder, without notice, and jointly and severally agree that they shall remain liable hereunder notwithstanding any such renewals, extensions, modifications or indulgences, until the debt evidenced hereby is fully paid. The Maker agrees to pay a late charge equal to ten percent (10.0%) of each payment of principal and/or interest which is not paid within five (5) days of the date on which it is due. In the event that any payment is returned on account of insufficient or uncollected funds, the Maker shall additionally be liable for a return check charge of five percent (5.0%) of the amount of the check and Lender may require that all future payments be made by cashier's check. Any payment of principal and/or interest due under this Promissory Note which is not promptly paid on the date such payment becomes due, shall bear interest at the highest rate allowable by law ("Default Rate") commencing on the date immediately following the day upon which the payment was due. Upon the occurrence of any event of default as defined herein or an Event of Default as defined in the HOME Loan Agreement, all sums outstanding under this Promissory Note shall thereon immediately bear interest at the Default Rate from the date of disbursement, without notice to the Maker or endorser of this Promissory Note, and without any affirmative action or declaration on the part of the Lender. In the event of the sale of Project or the Property in violation of the requirements set forth in the HOME Loan Agreement, all sums outstanding under this Promissory Note shall bear interest at the highest rate allowable by law from the date of disbursement, without notice to the Maker or endorser of this Promissory Note, and without any affirmative action or declaration on the part of the Lender. This Promissory Note shall be construed and enforced according to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws or comity. Any action pursuant Page 3 of 6 to a dispute under this Promissory Note must be brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami -Dade County is not convenient. This Promissory Note shall not be changed, modified, terminated, or discharged in whole or in part, except by an instrument in writing signed by the Maker and the Lender or their respective successors or assigns. Except as provided in the Loan Documents, this Promissory Note is a non -recourse obligation of the Maker and its members and neither Maker nor its members have personal liability for repayment of the Loan. THE MAKER OF THIS PROMISSORY NOTE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS PROMISSORY NOTE OR ANY LOAN DOCUMENT(S) EXECUTED IN CONNECTION HEREWITH, OR THE FINANCING CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER EXTENDING THE LOAN EVIDENCED BY THIS PROMISSORY NOTE. [Signature Page Follows] Page 4 ,of 6 IN WITNESS WHEREOF, the Maker has hereunto set its hand and seal the day and year first above written. Maker:: The Gallery at West Brickell, LLC, a Florida limited liability company WITNESSES: By: The Gallery at West Brickell Manager, LLC, a Florida limited liability company, its manager evs2,- „,„ Qua,/ Print Name: WA(( SOS i-lec5.6",4Z By: L Print Name: Tony Del Pozzo Title: Vice President Date: Print Name: L1 . Tr iv; iA.vt. ACKNOWLEDGMENT STATE OF FLORIDA } COUNTY OF MIAMI-DADE } SS: The foregoing instruine t s acknowled ed b¢fore me by means of physical presence or ❑ online notarization this ''day of r, 2022 by Tony Del Pozzo, as Vice President of The Gallery at West Brickell Manager, LL , a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liability company, who is personally known to me or has produced as identifiat on. `.SHAY PUB`.. VANESSAPILOTO :* MY COMMISSION # RH 213353 a4 _ `�•a'= EXPIRES: February 1$, 2026 Print ame: 111W4 ,04b ayu&s.a ((0+6 Notary Public, State of Florida at large Page 5 of 6 Attachment 1 The Gallery at West Brickell at 201 Southwest 10 Street, Miami, Florida 33130 Payment of principal, interest, and all other charges, expenses, and fees set forth in the Loan Documents shall be deferred and no payments of principal and interest shall be due until the end of the Affordability Period (as defined in the HOME Loan Agreement). Interest on Principal outstanding shall accrue as follows: The Principal of this Promissory Note shall bear interest at the rate of zero percent (0%) from the Effective Date until the Close -Out of the Project (as defined in the HOME Loan Agreement). Upon the Close -Out of the Project, the loan will be converted to a permanent loan that shall bear interest at the rate of three percent (3%) per annum simple interest only, with the entire principal balance and any accrued and unpaid interest and other charges due at the end of the Affordability Period. The City may, at its sole discretion, forgive all remaining indebtedness and other sums due on the Loan and release all documents given as collateral security for no additional consideration at its maturity. If during the Affordability Period any HOME Assisted Unit fails to comply, beyond any applicable notice and cure period, with the affordability requirements of the HOME Program, the HOME Loan Agreement and/or the other Loan Documents, the Maker shall repay to the Lender all funds received by the Maker pursuant to this Promissory Note, all unpaid interest accrued thereon, all Program Income derived therefrom or in connection therewith, and all unpaid fees, charges and other obligations of the Maker due under any of the Loan Documents. #10795426 v6 Page 6 of 6 t This Instrument Was Prepared By: Brian J. McDonough, Esq. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler St., Suite 2200 Miami, Florida 33130 1110933681 v2 30364-1032 CFN: 20220948582 BOOK 33512 PAGE 3500 DATE:12/21/2022 09:09:14 AM HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY ASSIGNMENT OF MORTGAGE AND PROMISSORY NOTE THIS ASSIGNMENT OF MORTGAGE AND PROMISSORY NOTE (the "Assignment"), made and entered into as of the 4(r1' day of December, 2022, by RUDG INVESTOR, LLC, a Florida limited liability company, with offices at 2850 Tigertail Avenue, Suite 800, Miami, FL 33133 in favor of CITY OF MIAMI, whose address is 444 S.W. 2nd Avenue, Miami, Florida 33130 (the "Assignee"). WHEREAS, on September 7, 2022, THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company (the "Company") executed and delivered unto Assignor a Promissory Note in the original principal amount of Three Million Dollars ($3,000,000.00) (the "Original Note"); WHEREAS, Assignor is the Mortgagee under that certain Leasehold Mortgage and Security Agreement (the "Original Mortgage") executed by the Company, as Mortgagor therein, which Original Mortgage was recorded on September 8, 2022 in Official Records Book 33374, Page 25, of the Public Records of Miami -Dade County, Florida, and encumbers the property more particularly described in Exhibit "A" attached hereto and made a part hereof; and WHEREAS, as a condition to Assignee making a loan in the amount of Three Million And 00/100 Dollars ($3,000,000.00) to the Company, which loan will be evidenced by an Amended and Restated Promissory Note (the "Note"), which will amend and restate the Original Note, Assignee requires that Assignor execute this Assignment in favor of Assignee for the assignment of the Original Note and the Original Mortgage. NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable considerations, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. The recitals hereinabove contained are true and correct. 2. Assignor hereby assigns, transfers, and sets over unto Assignee all of its right, title and interest in the Original Mortgage and the Original Note, for the purpose of providing additional security for the payment of the Note in favor of Assignee. -1- CFN: 20220948582 BOOK 33512 PAGE 3501 3. Immediately upon the execution of this Assignment, this Assignment shall become absolute and the Assignee shall thereafter be recognized as the Mortgagee under the Original Mortgage and the holder under the Original Note. 4. The Assignor covenants and represents unto Assignee that it is the owner of the Original Mortgage and Assignor has not assigned, pledged or hypothecated or otherwise transferred or encumbered the Original Mortgage, or any part thereof, or any of its right, title, claim and interest therein. 5. The Assignor agrees to execute and deliver to the Assignee, at any time or times during which this Assignment shall be in effect, such further instruments as the Assignee may deem necessary to make effective or more effective the assignment of the rights of the Assignor assigned to the Assignee hereby and the covenants of the Assignor herein contained. 6. The terms, covenants and conditions contained herein shall bind the Assignor and his heirs, executors, personal representatives, successors and assigns and shall inure to the benefit of the Assignee, its successors and assigns. 7. No change, amendment, modification, cancellation or discharge hereof shall be valid unless the Assignee shall have consented thereto in writing. [SIGNATURE APPEARS ON FOLLOWING PAGE] -2- #10933681 v2 30364-1032 CFN: 20220948582 BOOK 33512 PAGE 3502 IN WITNESS WHEREOF, the Assignor has caused these presents to be executed on the day and year first hereinabove written. STATE OF FLORIDA : SS COUNTY OF MIAMI-DADE ASSIGNOR: RUDG INVESTOR, LLC, a Florida limited liability company By: .-191r7 Tony Del Pozzo, Vice President The foregoing instrument was lcl 1edged before me by means of I1Yphysical presence or ❑ online notarization, this 0b day of 1 , 2022 by Tony Del Pozzo, as Vice President of RUDG INVESTOR, LLC, a Floria limited liability company, on behalf of the limited liability company, who is personally known to me or has produced a valid driver's license as identification. Noi'ary Public State of Florida at Large VANESSA PILOTO MY COMMISSION # HH 213353 EXPIRES: February 16, 2026 My commission expires: -3- 410933681 vl 30364-1032 CFN: 20220948582 BOOK 33512 PAGE 3503 EXHIBIT "A" LEGAL DESCRIPTION Parcel 1- Leasehold 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. A-1 #10933681 vl 30364-1032 CFN: 20220948587 BOOK 33512 PAGE 3538 DATE:12/21/2022 09:09:14 AM HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY 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: December 14, 2022 Location: The Gallery at West Brickell City of Miami Miami -Dade County, Florida Mortgage Subordination Agreement (City - County) (The Gallery at West Brickell) CFN: 20220948587 BOOK 33512 PAGE 3539 MORTGAGE SUBORDINATION AGREEMENT THIS MORTGAGE SUBORDINATION AGREEMENT (this "Agreement") is made as of the 14th day of December, 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 and 00/100 ($3,000,000.00) (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 and 00/100 ($3,000,000.00) (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 Two Million Dollars and 00/100 ($2,000,000.00) consisting of HOME Investment Partnership funds (the "HOME Debt") which shall be evidenced by (i) a Promissory Note dated September 7, 2022 in the original principal amount of $2,000,000.00 (the "HOME Note"), and secured by that certain Leasehold Mortgage and Security Agreement and Assignment of Leases, Rents and Profits dated September 7, 2022 and recorded on September 8, 2022 in Official Records Book 33374, Page 45, 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 One Million Five Hundred Thousand Dollars and 00/100 ($1,500,000.00) 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 September 7, 2022 in the original principal amount of $1,500,000.00 (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 September 7, 2022 and recorded on September 8, 2022 in Official Records Book 33374, Page 115, 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 (City - County) (The Gallery at West Mickel') CFN: 20220948587 BOOK 33512 PAGE 3540 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 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 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. 2 Mortgage Subordination Agreement (City - County) (The Gallery at West Brickell) CFN: 20220948587 BOOK 33512 PAGE 3541 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. Subordinate Mortgagee further agrees that its agreement to subordinate hereunder shall not extend to any new mortgage debt which is for the purpose of refinancing all or any part of the Senior Debt (including reasonable and necessary costs associated with the closing and/or the refinancing) that has not been previously approved by Subordinate Mortgagee; and that all, after approval, the terms and covenants of this Agreement shall inure to the benefit of any holder of any such refinanced debt; and that all references to the Senior Debt, the Senior Note, the Senior Mortgage, the Senior loan documents and Senior Mortgagee shall mean, respectively, the refinance loan, the refinance note, the mortgage securing the refinance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance note. 7. 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. 8. 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. 3 Mortgage Subordination Agreement (City - County) (The Gallery at West Brickell) CFN: 20220948587 BOOK 33512 PAGE 3542 Bilzin Sumberg Baena Price & Axelrod LLP 1450 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attention: Terry Lovell, Esq. 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. Assistant County Attorney 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 ls` 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 4 Mortgage Subordination Agreement (City -County) (The Gallery at West Brickell) CFN: 20220948587 BOOK 33512 PAGE 3543 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. 9. 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. 10. 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. 11. This Agreement shall be immediately binding upon the parties hereto and their respective heirs, personal representatives, executors, administrators, successors and assigns. 12. 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, 13. 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. 14. 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. 5 Mortgage Subordination Agreement (City - County) (The Gallery at West Brickell) CFN: 20220948587 BOOK 33512 PAGE 3544 15. 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 electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 16. 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. 17. 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) CFN: 20220948587 BOOK 33512 PAGE 3545 IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. ATTESTED: ['odd B. Ham City Clerk STATE OF FLORIDA )SS: COUNTY OF MIAMI-DADE SENIOR MORTGAGEE: CITY OF MIAMI, a Florida municipal corporation Bv: ARTHUR NORI '; A V City Manager Sworn to and subscribed. before me by [check one] O means of physical presence or ( ) remote audio-visual means, this 1 day of . e.pke 1 194 7 , 2022, by ARTI-iU 11 GA V, as City manager of City of Miami; a Florida municipal corporation. He i 4 ersol�ally known t ne or has produced as identification. My Commission Expires: 'i{,::-- ^ 15S10K# s0� '' FAY COFAfA u 2, 2023 ;,�r +'�` �sy' � �E ry Pu�ty�¢ryrhtets APPROVED AS TO LEGAL FORM AND CORRECTNESS: Vic'tria Mendez, City Attorney Mortgage Suboniination Agreement (City - County) (The Gallery at West Brickell) Note ublic, State of Florida Print Stamp Name Commission No.: [Signature Page to Mortgage Subordination Agreement] CFN: 20220948587 BOOK 33512 PAGE 3546 SUBORDINATE MORTGAGEE: MIAMI-DADE COUNTY, a political subdivision of the State of Florida By: Name: Morris Copeland` Title: Chief Community Services Officer Approved for fiirrn and 1 - sufficiency By: STATE OF FLORIDA COUNTY OF MIAMI-DADE Terrence A. Smith Assistant County Attorney The foregoing instrument was a, knowledgec before me by means of hysical presence or ❑ online notarization, this 2- ay of. , 2022, y Morris Copeland, Chief Community Services Officer, for Miami -Dade County, a political subdivision of the State of Florida. YVONNE RAMIREZ A Notary Public -State of Florida ��'t$' My Commiss n Exl (rest " January 13, 2027 Notary Public, State of Florida personally Known or 0 Produced Identification Type of Identification Produced Mortgage Subordination Agreement (City - County) (The Gallery at West Brickell) [Signature Page to Mortgage Subordination Agreement] CFN: 20220948587 BOOK 33512 PAGE 3547 WITNESSES: i`6 Print: 1.1,cr r\ Print: L�%.t_ Tr;v;kr 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: ilon, Tony Del Pozzo, Vice President Address: 2850 Tigertail Avenue, Suite 800 Miami, Florida 33133 Attention: Tony Del Pozzo ss.: [SEAL] The foregoing instrument was a la wl.edged b fore me by means of Ip + hysical presence or ❑ online notarization, this day of '1 , 2022 by Tony Del Pozzo, as Vice President of The Gallery at West Brickell Manager, 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. — ame typed, printed or stamped) itle or rank) erial number, if any) Mortgage Subordination Agreement (City - County) (The Gallery at West Brickell) [Signature Page to Mortgage Subordination Agreement] CFN: 20220948587 BOOK 33512 PAGE 3548 SCHEDULE A Parcel 1- Leasehold 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 CFN: 20220948584 BOOK 33512 PAGE 3507 DATE:12/21/2022 09:09:14 AM HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY Prepared by, and after recording return to: Victoria Mendez, Esq. City Attorney, City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 201 Southwest 10 Street, Miami, Florida 33130 DECLARATION OF RESTRICTIVE COVENANTS FOR THE GALLERY AT WEST BRICKELL This Declaration of Restrictive Covenants for The Gallery at West Brickell ( "Covenant") made this h-1 of December, 2022 ("Effective Date") by THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company ("Project Sponsor"), is in favor of the CITY OF MIAMI, a municipal corporation of the State of Florida ("City"). RECITALS WHEREAS, the Project Sponsor is the long term lessee of the property legally described in Exhibit "A," attached hereto and incorporated herein ("Property"); and WHEREAS, the Project Sponsor hereby agrees and covenants that the following described property shall be subject to the provisions, covenants, and restrictions contained herein; and WHEREAS, this Covenant is made for the express benefit of the City of Miami, a Florida municipal corporation ("City"), and it shall remain in full force and effect until released by the City; and WHEREAS, the City has loaned three million dollars ($3,000,000.00) in HOME Investment Partnerships Program ("HOME") funds to Project Sponsor ("Loan") in order to develop the Project, as more particularly described below; and WHEREAS, the Project Sponsor is developing a project that will increase the supply of rental housing units for Very Low Income Households in the community known as Brickell (hereinafter referred to as the "Project"), which consists of the new construction of a 29-floor high- rise residential building on the Property; and WHEREAS, the Project consists of a total of four hundred sixty five (465) residential apartment units, of which a total of ninety-three (93) residential apartment units are HOME - assisted units (the "HOME -Assisted Units"); and WHEREAS, the HOME -Assisted Units are all subject to the terms, covenants, and restrictions contained herein; and WHEREAS, the City's lending of funds for the Project is subject to that certain HOME Investment Partnerships Program Loan Agreement for The Gallery at West Brickell ("Loan Page 1 of 7 CFN: 20220948584 BOOK 33512 PAGE 3508 Agreement") and the other loan documents of even date herewith between the City and the Project Sponsor (collectively the "Loan Documents"); and WHEREAS, Project Sponsor desires to make a binding commitment to assure that the HOME -Assisted Units and the Property in general are maintained and operated in accordance with the provisions of the Loan Documents and this Covenant; and WHEREAS, Project Sponsor, as a condition for receiving the Loan funds to construct the Project is required to record in the Public Records of Miami -Dade County, Florida, this Covenant obligating the Project Sponsor, its successors, transferees, and assigns to maintain and operate the Property in accordance with this Covenant and the Loan Documents; and WHEREAS, the Project Sponsor hereby declares that. this Covenant shall be and is a covenant running with the Property and, unless released by the City, is binding on the Property for the entire Affordability Period, as defined herein, and is not merely a personal covenant of the Project Sponsor; and NOW THEREFORE, Project Sponsor voluntarily covenants and agrees that the HOME- Assisted Units and the Property in general shall be subject to the following restrictions that are intended and shall be deemed to be covenants running with the land and binding upon Project Sponsor, and its heirs, transferees, successors and assigns as follows: Section 1. Recitals: The recitals and findings set forth in the preamble of this Covenant are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. Use of Property: There shall be a total of ninety-three (93) HOME - Assisted Units in the Project that shall remain Affordable for eligible tenants in compliance with this Covenant and the Rent Regulatory Agreement between City and Project Sponsor of even date herewith. All ninety-three (93) HOME Assisted Units shall remain Affordable to Very Low Income Households for the period of time commencing on the date of the Close -Out of the Project and ending thirty (30) years thereafter (the "Expiration of the Affordability Period"). The ninety-three (93) HOME -Assisted Units shall consist of fifty-four (54) studio/one bathroom apartment units, and thirty-nine (39) one bedroom/one bathroom apartment units. "Very Low Income" shall mean a household whose annual income does not exceed fifty percent (50%) of the median income for the area, as determined by the U.S. Department of Housing and Urban Development, with adjustments and certain exceptions as provided in 24 CFR Part 92. The period of time that the Assisted Units must remain Affordable, in compliance with 24 CFR §92.252, 24 CFR §92.254, this Covenant, and the Rent Regulatory Agreement. The Affordability Period for this Project is thirty (30) years, commencing on the Close -Out of the Project. Section 3. Term of Covenant: This Covenant is a covenant running with the land. This Covenant shall remain in full force and effect and shall be binding upon the Project Sponsor, its successors and assigns from the Effective Date until the Expiration of the Affordability Period. Upon the Expiration of the Affordability Period, this Covenant shall immediately lapse and be of no further force and effect without the necessity of any other written document or instrument. Notwithstanding the foregoing, upon the Expiration of the Affordability Page 2 of 7 CFN: 20220948584 BOOK 33512 PAGE 3509 Period, the City shall prepare for recording an instrument evidencing the expiration of and other termination of this Covenant in the Public Records of Miami -Dade County, Florida. Section 4. Prohibited Conveyances: Except as provided in the Loan Documents, including the Permitted Senior Financing described therein, the Project Sponsor covenants and agrees not to encumber or convey its interest in the Project, Property, or any portion thereof, without City's prior written consent as required by the Loan Agreement. For the purposes of this Covenant, any change in the ownership or control of the Project Sponsor, which is not permitted under the Loan Documents, shall be deemed a conveyance of an interest in the Project. Section 5. Repayment Upon Default: The Project Sponsor covenants and agrees that in the event (i) of the sale or conveyance of any interest in the Project and/or the Property without City's prior written consent as required by the Loan Documents (except as otherwise provided in the Loan Documents), or (ii) that the Project Sponsor ceases to exist as an organization, (iii) or there is a material breach of a term to this Covenant (and such breach is not cured in compliance with the terms of the Loan Agreement), the Project Sponsor shall immediately make payment to the City in an amount equal to the full amount of Loan funds disbursed and outstanding, with interest thereon as provided in the Note, all Program Income (as defined in 24 CFR Part 92) derived from or in connection with the Project, the Property and/or the Loans, and all unpaid fees, charges and other obligations of the Project Sponsor due under any of the HOME Loan Documents. Section 6. Inspection and Enforcement: It is understood and agreed that any official inspector of the City shall have the right any time during normal working hours to enter and investigate the use of the Property to determine whether the conditions of this Covenant are in compliance, subject to the rights of residential tenants under their leases. Section 7. Amendment and Modification: This Covenant may be modified, amended, or released as to any portion of the Property by a written instrument executed by the City and the Project Sponsor or their respective successors -in -interest. Should this instrument be modified, amended, or released, the City Manager, or such person who hereafter is delegated such authority, shall execute a written instrument in recordable form to be recorded in the Public Records of Miami -Dade County, Florida, effectuating and acknowledging such modification, amendment, or release. Section 8. Definitions: All capitalized terms not defined herein shall have the meanings provided in the HOME Loan Agreement. Section 9. Scverability: Invalidation of one of the provisions of this Covenant by judgment of Court shall not affect any of the other provisions of the Covenant, which shall remain in full force and effect. Section 10. Recordation: This Covenant shall be filed of record among the Public Records of Miami -Dade County, Florida, at the sole cost and expense of the Project Sponsor. Section 11. Deed Restriction/Covenant Running with the Land. Any and all requirements of the laws of the State of Florida that must be satisfied in order for the provisions of this Covenant to constitute a deed restriction and covenant running with the land shall be Page 3 of 7 CFN: 20220948584 BOOK 33512 PAGE 3510 satisfied in full, and any requirements or privileges of estate are intended to be satisfied, or in the alternate, an equitable servitude has been created to insure that these restrictions run with the land. For the term of this Covenant, each and every contract, deed, or other instrument hereafter executed conveying the Property or portion thereof shall expressly provide that such conveyance is subject to this Covenant, provided, however, that the covenants contained herein shall survive and be effective regardless of whether such contract, deed, or other instrument hereafter executed conveying the Property or portion thereof provides that such conveyance is subject to this Covenant. Section 12. Governing Law and Vcnue. This Covenant shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Covenant must be brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami -Dade County is not convenient. Section 13. Floating Units. HOME -Assisted Units shall be handled as "Floating Units," as described in 24 CFR 92.252(j): "In a project containing HOME -assisted and other units, the participating jurisdiction may designate fixed or floating HOME units. This designation must be made at the time of project commitment. Fixed units remain the same throughout the period of affordability. Floating units are changed to maintain conformity with the requirements of this section during the period of affordability so that the total number of housing units meeting the requirements of this section remains the same, and each substituted unit is comparable in terms of size, features, and number of bedrooms to the originally designated HOME -assisted unit." Section 14. Costs, Including: Attornev's Fees. In the event of litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Covenant, each party shall ' be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. [Signature Page Follows] Page 4 of 7 CFN: 20220948584 BOOK 33512 PAGE 3511 IN WITNESS WHEREOF, the Project Sponsor has caused this Declaration of Restrictive Covenants to be executed by its duly authorized officers and the corporate seal to be affixed hereto on the day and year first above -written. PROJECT SPONSOR: THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company WITNESSES: By: The Gallery at West Brickell Manager, LLC, a Florida limited liability company, its manager Print Name: By: Print Name: Ho(rjw. STATE OF FLORIDA Print Name: Tony Del Pozzo Title: Vice President Date: ACKNOWLEDGMENT } COUNTY OF MIAMI-DADE } SS: The foregoing nstrumcnt. cc acknow edged b re me by means. of physical presence or ❑ online notarization this...A "day of 2022 by Tony Del Pozzo, as_ Vice President of The Gallery at West 13riciccll Manager, LL ., a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liabil ty company, who. isjrsonally known to. or has produced as identification, VAJ ESSi1 PMLOTO MY COMWSSIotJ i 11H 213353 EXPIRES:fabruary 18,2028 Print Nartle: Aca. Notary Public, State of Florida at large Page 5 of 7 CFN: 20220948584 BOOK 33512 PAGE 3512 ATTEST: By: Date: CITY OF MIAMI, a niuuigijal corporation of the State of Florida eri:.: ,' / / APPROVER AS TO,1NSYfij�'NC APPROVED AS TO FORM AND REQUIREMENTS ,:CORREC°yfONS / //7 • Alin -Marie Simi e Victoria -Mendez Director of Risl ianag m.ent City Attorney Arthur Noriega V, City Manager (LP Page6of7 CFN: 20220948584 BOOK 33512 PAGE 3513 Exhibit A Lezal Ilescription Of The Property Parcel 1- Leasehold 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. Page 7 of 7 410978710 vi CFN: 20220948585 BOOK 33512 PAGE 3514 DATE:12/21/2022 09:09:14 AM HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY Prepared by, and after recording, return to: Victoria Mendez, Esq. City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 201 Southwest 10 Street, Miami. Florida 33130 RENT REGULATORY AGREEMENT FOR THE GALLERY AT WEST BRICKELL THIS RENT REGULATORY AGREEMENT ("Regulatory Agreement") is entered into this 1 L. { day of December, 2022, between THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company ("Borrower") and the CITY OF MIAMI, a municipal corporation of the State of Florida ("City"). The execution of this Regulatory Agreement by the Borrower is in connection with the loan of HOME Investment Partnerships Program ("HOME") funds ("Loan"), secured by certain loan documents to be executed in connection therewith ("Loan Documents"), for the construction of that certain project known as The Gallery at West Brickell ("Project"). The Project will be a twenty nine -story high-rise building located at 201 Southwest 10 Street, Miami, Florida 33130 ("Property"). In accordance with the requirements set forth in (i) that certain HOME Loan Agreement executed by the Borrower and the City for the HOME funds (the "Loan Agreement"), and (ii) the other Loan Documents of even date therewith between the Borrower and the City, ninety-three (93) Project units are considered "HOME -Assisted Units" and all of the HOME -Assisted Units are subject to the restrictions provided herein. The ninety-three (93) HOME -Assisted Units shall be "floating" units, meaning that they are not specifically designated units, but that any ninety- three (93) of the total four hundred sixty five (465) Project units shall be, at any one time, in compliance with the requirements set forth herein. Borrower hereby agrees to the following terms, conditions and covenants until the Expiration of the Affordability Period: (1) Occupancy Requirements. The HOME -Assisted Units shall be made available to tenants who qualify under the occupancy requirements of 24 CFR Part 92 (hereinafter referred to as the "Regulation"). The HOME -Assisted Units are subject to the restrictions provided therein and herein, including, but not limited to, the following: All ninety-three (93) HOME Assisted Units shall remain Affordable to Very Low Income Households for the period of time commencing on the date of the Close -Out of the Project and ending thirty (30) years thereafter (the "Expiration of the Affordability Period"). As defined in the Regulation, Very Low -Income Households have annual incomes that do not exceed fifty percent (50%) of area median income, as determined by the U.S. Department of Housing and Urban Development ('HUD") and adjusted for family size. (2) Maximum Rent Levels. The rents charged on all of the HOME -Assisted Units shall be subject to the Regulation. Gross monthly rent charged on HOME -Assisted Units occupied by tenants identified as Very -Low Income Households are subject to the maximum Page 1 of 9 CFN: 20220948585 BOOK 33512 PAGE 3515 LOW HOME Rent published annually by HUD for each locality. The LOW HOME Rent maximums for leases signed in Miami, Florida effective as of June 15, 2022 are as follows: No. of HOME- No. of Bedrooms No. of Bathrooms Low HOME Rent Maximum Assisted Units 54 (50% AMI) Studio 1 $853 39 (50% AMI) 1 1 $914 The foregoing maximum rents include tenant paid utilities. Maximum rents will be reduced for the amount of the applicable HUD Utility Allowance for any utilities paid by the tenant. In no event will the monthly rent on a HOME -Assisted Unit exceed thirty percent (30%) of the applicable percentage of area median income set forth in Paragraph 1 above. Rents shall not be adjusted for changes in income or HUD published maximums until lease renewal. In the event that the HOME Assisted Units are also benefitted from a federal or state rent subsidy program, then the rents outlined above may be set at the applicable rent standard established by that rent subsidy program in compliance with 24 CFR 252 (b)(2). (3) Income Re -certification. Tenant income for HOME -Assisted Units shall be certified by the Borrower annually on the anniversary of each tenant's lease and maintained in the tenant file, subject to inspection by the City, in accordance with this Regulatory Agreement. (4) Deposits and Pre -payments. Borrower shall not require, as a condition of occupancy or leasing of any HOME -Assisted Unit, any other consideration or deposit from the tenant, except for the prepayment of one month's rent and plus a security deposit not to exceed one additional month's rent. (5) Prohibited Lease Provisions. The Borrower's leases for HOME -Assisted Units shall not contain any of the following provisions: a. Agreement to be sued. A tenant lease may not contain a provision whereby the tenant agrees to be sued, admits guilt or consents to judgment in favor of the landlord in a lawsuit brought in connection with the lease. b. Agreement reaarding treatment of property. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may take, hold or sell personal property of the tenant household without notice and a court decision. This prohibition does not apply to personal property remaining in the HOME -Assisted Unit after the tenant has moved out. Page 2 of 9 CFN: 20220948585 BOOK 33512 PAGE 3516 c. Waiver of notice. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may institute a lawsuit without notice to the tenant. d. Waiver of legal proceeding,. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may evict the tenant or a household member without instituting a civil court proceeding in which the tenant has the opportunity to present a defense or before a court decision on the rights of the parties. e. Waiver of a jtu-y trial. A tenant lease may not contain a provision whereby the tenant agrees to waive any right to a jury trial. f. Waiver of right to appeal a court decision. A tenant lease may not contain a provision whereby the tenant agrees to waive the tenant's right to appeal or otherwise challenge in court a court decision in connection with the lease. g. Agreement to pay legal costs, regardless of outcome. A tenant lease may not contain a provision whereby the tenant agrees to pay attorney's fees or other legal costs even if the tenant wins the court proceeding brought by the landlord against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. h. Excusing owner from responsibility. A tenant lease may not contain a provision whereby the tenant agrees not to hold the landlord or the landlord's agents legally responsible for any action or failure to act, whether intentional or negligent. (6) Annual Reporting. Each year, on the anniversary of the issuance of the certificate of occupancy/certificate of completion for the Project, and at other times at the request of the City, the Borrower shall furnish occupancy reports in a form approved by the City, and shall provide the City with such other information as may be requested by the City relative to income, expenses, assets, liabilities, contracts, operations, and condition of the Project and/or the HOME - Assisted Units. (7) hispections. The Borrower agrees to submit the HOME -Assisted Units to an annual re -inspection to insure continuing compliance with all applicable housing codes, federal and local housing quality standards and regulatory requirements. The Borrower will be furnished a copy of the results of each inspection within thirty (30) days of completion, and will be given thirty (30) days thereafter to correct any deficiencies or violations. At any time other than an annual inspection, the City may, in its discretion, inspect any HOME -Assisted Unit. The Borrower and the tenant will be provided with the results of the inspection and the time and the method of compliance and corrective action that must be taken. (8) Record -keeping. The Property, the Project, including the HOME -Assisted Units, equipment, buildings, plans, offices, apparatus, devices, books, contracts, records, documents, Page 3 of 9 CFN: 20220948585 BOOK 33512 PAGE 3517 and other papers relating thereto shall at all times be maintained in reasonable condition for proper audit and shall be subject to examination and inspection at any reasonable time by the City. Borrower shall keep copies of all written contracts and other instruments which affect the HOME -Assisted Units, all or any of which may be subject to inspection and examination by the City. Specifically, the foregoing includes all records, calculations and information necessary to support tenant occupancy eligibility and monthly rental charges in addition to all leases and written notices to tenants with respect to the terms of this Regulatory Agreement, as required by this Regulatory Agreement. (9) Default. Upon the occurrence of a violation of any provision of this Regulatory Agreement, the City shall give written notice thereof to the Borrower, by registered or certified mail, addressed to the Borrower's address as stated in this Regulatory Agreement, or to such other address(es) as may subsequently, upon appropriate written notice thereof to the City, be designated by the Borrower. In the case of a Borrower which is a corporation or partnership, notices may also be sent by the City to the address of the corporation's chief executive officer or to all general partners, as applicable, at the City's discretion. If such violation is not corrected to the City's satisfaction, within thirty (30) days after the date such notice is mailed, or within such further time as the City reasonably determines is necessary to correct the violation, without further notice the City may declare a default under this Regulatory Agreement and under the Loan Agreement and the Loan Documents executed in connection therewith, and may proceed to initiate any or all remedies at law or in equity provided for in the event of a default under such agreements and Loan Documents. All notices under this Regulatory Agreement shall be in writing and addressed as follows: To Borrower: With Copy to: To City: With Copy To: The Gallery at West Brickell, LLC 2850 Tigertail Ave, Suite 800 Miami, FL 33133 Brian J. McDonough Stearns Weaver Miller Weissler Alhadeff and Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, FL 33130 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 Victoria Mendez Office of the City Attorney, City of Miami 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130-1910 Page 4 of 9 CFN: 20220948585 BOOK 33512 PAGE 3518 (10) Fines. Upon the occurrence of a violation of any provision of this Regulatory Agreement, and regardless of the nature of the violation, the City will assess a flat monthly fine in the amount of Fifty Dollars and no/cents ($50.00) per HOME -Assisted Unit that is the subject of such violation up to a maximum of Five Thousand Dollars and no/cents ($5,000.00) per month, for each month the violation is not corrected, and pay same over to the City. The remedy for violation provided in this section of this Regulatory Agreement is cumulative with any and all remedies at law or in equity provided in the event of a default under this Regulatory Agreement and/or the Loan Documents. (11) Tenant Notice. Borrower agrees during the term of this Regulatory Agreement, to furnish each tenant of a HOME -Assisted Unit, at the execution or renewal of any lease or upon initial occupancy, if there is no lease, with a written notice in the following form: The rent charged for your apartment and the services included in that rent are subject to a Rent Regulatory Agreement between the landlord and the City of Miami, for the term of the Affordability Period. A copy of the Rent Regulatory Agreement will be made available by the landlord to each tenant upon request. If there is no lease for a HOME -Assisted Unit, Borrower shall maintain a file copy of such notice delivered to the tenant, with a signed acknowledgement of receipt by the tenant. All such notices to tenants will be made available for inspection upon request by the City. (12) No Conflict with Loan Documents. The provisions of this Regulatory Agreement are in addition to, and do not amend, alter, modify, or supersede in any respect, the provisions of the mortgage and/or any of the other Loan Documents executed in connection with the Loan. (13) Partial Invalidity. The invalidity of any paragraph or provision of this Regulatory Agreement shall not affect the validity of the remaining paragraphs and provisions hereof. (14) Term. This Regulatory Agreement shall be effective until the Expiration of the Affordability Period. On the Expiration of such period, this Regulatory Agreement shall immediately lapse and be of no further force and effect without the necessity of any other written document or instrument. Notwithstanding the foregoing, upon such Expiration, the Borrower shall be permitted to prepare and record an instrument evidencing the expiration of and other termination of this Regulatory Agreement in the Public Records of Miami -Dade County, Florida. (15) Definitions. All capitalized terms used herein and not otherwise defined shall have the meanings provided in the Regulation and/or in the Loan Agreement. (16) Exclusion of Commercial Spaces. Notwithstanding anything to the contrary in this Regulatory Agreement or in the Loan Agreement, it is expressly understood and agreed that the Regulation and all other terms, conditions, restrictions, and requirements of this Regulatory Agreement shall exclude, and shall not apply to, or otherwise restrict or affect, the operation, maintenance, leasing, improvement, base rent and other additional rent determination and collection, and all other aspects of the Borrower's management, leasing, and ownership of all or any portion of the commercial and retail spaces located in the Project, if applicable. Page 5 of 9 CFN: 20220948585 BOOK 33512 PAGE 3519 (17) SeverabiIity. Invalidation of one of the provisions of this Regulatory Agreement by judgment of Court shall not affect any of the other provisions of the Regulatory Agreement, which shall remain in full force and effect. (18) Recordation. This Regulatory Agreement shall be filed of record among the Public Records of Miami -Dade County, Florida, at the sole cost and expense of the Borrower. (19) Governing Law and Venue. This Regulatory Agreement shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Regulatory Agreement must be brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami -Dade County is not convenient. (20) Counterparts. This Regulatory 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 Regulatory Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Regulatory 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 electronic signature agrees to promptly execute and deliver to the other parties an original signed Regulatory Agreement upon request. (21) Attorney's Fees. In the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Regulatory Agreement, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. [Signature Page Follows] Page 6 of 9 CFN: 20220948585 BOOK 33512 PAGE 3520 THIS REGULATORY AGREEMENT has been executed and delivered as of the day and year first above written. WITNESSES: PROJECT SPONSOR: 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: Print Name: rf mac." i ^i94 .t-z Print Name: Tony Del Pozzo Title: Vice President Date: Print Name:- Lv4c. hQ" ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE ) SS: The foregoing instrument was acknowledged befpre me by means of ©.physical presence or 0 online notarization this 36�dy of , 2022 by Tony Del Pozzo, as Vice President of The Gallery at West Brickell Manager, LLC, a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liability company, who is personally known to me or has produced as identification. VANESSA MOT O S'- {��' MY COMM1SS101d#1.0.1213353 EXPIRES: Februusy'10, 2025 Print Name: v CtY J-c5 SG MAtftb Page 7 of 9 CFN: 20220948585 BOOK 33512 PAGE 3521 THIS REGULATORY AGREEMENT has been executed and delivered as of the day and year first above written. ATTEST: Todd B. Hannoc-- City Clerk 17 Date: APPROVED AS TO FORM AND CORRECTNESS: • t ,Y Victorian endez City Attorney CITY: CITY OF MIAMI, a municipal corporation of the State of Florida By: Arthur IN/zIg ga V, City Manager Page 8 of 9 CFN: 20220948585 BOOK 33512 PAGE 3522 Exhibit A Legal Description OI" The Property Parcel 1- Leasehold 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. Page 9 of 9 #10795750 v5 CFN: 20220948586 BOOK 33512 PAGE 3523 DATE:12/21/2022 09:09:14 AM HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY Prepared by, and after recording, return to: Victoria Mendez, Esq. City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 201 Southwest 10 Street, Miami, Florida 33130 Note to Recorder: This Mortgage is given to secure financing under Part V of Chapter 420 of the Florida Statutes and is exempt from taxation pursuant to Section 420.513, Florida Statutes. AMENDED AND RESTATED LEASEHOLD MORTGAGE AND SECURITY AGREEMENT FOR THE GALLERY AT WEST BRICKELL, LLC THIS AMENDED AND RESTATED LEASEHOLD MORTGAGE AND SECURITY AGREEMENT ("Mortgage"), is executed and delivered the i ; i d `' day of December, 2022 by THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability company, whose address is 2850 Tigertail Ave, Suite 800, Miami, FL 33133 ("Mortgagor"), to the CITY OF MIAMI, a municipal corporation of the State of Florida, with offices at 444 S.W. 2nd Avenue, Miami, Florida 33130-1910 ("Mortgagee"). RECITALS WHEREAS, on July 30, 2021, July 19, 2022, and September 29, 2022 the Mortgagee approved an allocation of Three Million and 00/100 Dollars ($3,000,000.00) in HOME Investment Partnerships Program ("HOME") funds for construction of residential apartment units in the Brickell neighborhood of Miami, Florida ("Project"); and WHEREAS, Mortgagor made, executed and delivered to RUDG Investor, LLC, a Florida limited liability company ("RUDG") that certain Leasehold Mortgage and Security Agreement for The Gallery at West Brickell, LLC (Placeholder Mortgage) dated as of September 7, 2022, by Mortgagor in favor of RUDG, recorded on September 8, 2022, in Official Records Book 33374, Page 25; as affected by Mortgage Subordination Agreement by and among RUDG, The Bank of New York Mellon Trust Company, N.A., as Fiscal Agent and JPMorgan Chase Bank, N.A., and consented to by Mortgagor, dated as of September 1, 2022, recorded on September 8, 2022 in official Records Book 33374, Page 179, all of the Public Records of Miami -Dade County, Florida (the "Placeholder Mortgage"); and WHEREAS, on even date herewith, RUDG has assigned all of its right, title and interest in and to the Placeholder Mortgage to Mortgagee, and Mortgagee has accepted the assignment of the Placeholder Mortgage; and WHEREAS, Mortgagor and Mortgagee desire to amend and restate the Placeholder Mortgage in its entirety as hereinafter provided. WHEREAS, Mortgagor has delivered to Mortgagee that certain Amended and Restated HOME Promissory Note for The Gallery at West Brickell, LLC, of even date herewith, made by Mortgagor in favor of Mortgagee (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, and together with any and all renewals, replacements, extensions, modifications, substitutions, future advances and any other evidence of Page 1 of 15 IP10978703 v2 CFN: 20220948586 BOOK 33512 PAGE 3524 indebtedness evidenced by said Amended and Restated Promissory Note) ("Note"), which Note evidences the indebtedness in the amount of Three Million and 00/100 Dollars ($3,000,000.00) in HOME funds which are restricted by certain other documents that are executed of even date herewith such as the Loan Agreement, Declaration of Restrictive Covenants, Disbursement Agreement, Rent Regulatory Agreement, and the Note (the "Loan"). NOW THEREFORE, in consideration of the making of the Loan by Mortgagee and the covenants, agreements, representations and warranties set forth in this Mortgage: WITNESSETH THAT: FOR GOOD AND VALUABLE CONSIDERATION, as set forth in the above recitals that are hereby incorporated by reference, the receipt and sufficiency of which arc hereby acknowledged, and also in consideration of the aggregate sum named in the promissory note from the Mortgagor in favor of the Mortgagee, in the original principal amount of Three Million and 00/100 Dollars ($3,000,000.00) (hereinafter referred to as the "Note"), the Mortgagor does grant, bargain sell, alien, remise, release, convey and confirm unto the Mortgagee, in leasehold interest, that certain tract of land which the Mortgagor is now seized and possessed and in actual possession, situate in Miami -Dade County, State of Florida, located at 201 Southwest 10 Street, Miami, Florida 33130, legally described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN TOGETHER WITH all structures and improvements now and hereafter located thereon, the rents, issues and profits thereof, all furniture, furnishings, fixtures and equipment now located thereon, and also all gas and electric fixtures, heaters, air conditioning, equipment, machinery, motors, baths, tubs, sinks, water closets, faucets, pipes and other plumbing and heating fixtures, refrigerators, blinds, and other window treatments, which are now or may hereafter pertain to or be used with, in or on said premises, and which, even though they be detached or detachable, are and shall be deemed to be fixtures and accessions to the freehold and a part of the realty, and all additions thereto and replacements thereof, which real property, improvements and personalty shall hereinafter collectively be referred to as the "Mortgaged Property". TO HAVE AND TO HOLD the same, together with all tenements and hereditaments and appurtenances, unto the Mortgagee in leasehold estate. The Mortgagor does covenant with the Mortgagee that Mortgagor is indefeasibly seized of a leasehold estate in the Mortgaged Property; that the Mortgagor has full power and lawful right to convey the leasehold estate in the Mortgaged Property as aforesaid; that the Mortgaged Property is free from all encumbrances except as specified on Exhibit "B" attached hereto and incorporated herein; that the Mortgagor will make such further assurances to perfect the leasehold estate to the Mortgaged Property in the Mortgagee as may reasonably be required; and that the Mortgagor does hereby fully warrant title to the Mortgaged Property, and will defend the same against the lawful claims of all persons whomsoever. Page 2 of 15 CFN: 20220948586 BOOK 33512 PAGE 3525 PROVIDED ALWAYS, that if the Mortgagor shall pay unto the Mortgagee or otherwise perform and fulfill its obligations with respect to the indebtedness and obligations evidenced by the Note, and shall perform, comply with and abide by each and every one of the stipulations, agreements, conditions and covenants of the Note, this Mortgage, the Covenant, the Disbursement Agreement, the Rent Regulatory Agreement, and the Loan Agreement dated of even date herewith by and between Mortgagee, as lender therein, and Mortgagor, as borrower therein (the "Agreement" or "Loan Agreement") and all other loan documents executed in connection herewith and therewith (hereinafter jointly referred to as "the Loan Documents"), then this Mortgage and the estate thereby created shall cease and be null and void. AND THE MORTGAGOR HEREBY COVENANTS AND AGREES AS FOLLOWS: 1. PERFORMANCE OF NOTE AND MORTGAGE. The Mortgagor shall pay or otherwise fully perform its obligations with respect to the payment of all and singular the principal, interest and other sums of money payable by virtue of the Note and this Mortgage, or either, promptly on the days when the same severally become due and payable, and shall perform, comply with and abide by each and every of the stipulations, agreements, conditions and covenants set forth in the Note, this Mortgage and the Loan Documents. 2. TAXES AND OTHER CHARGES. The Mortgagor shall pay when due and payable and before any interest, charge or penalty is due thereon, without any deduction, defalcation or abatement, all taxes, assessments, levies, liabilities, obligations, encumbrances, water and sewer rents and all other charges or claims of every nature and kind which may be imposed, suffered, placed, assessed, levied, or filed at any time against this Mortgage, the Mortgaged Property or any part thereof or against the interest of the Mortgagee therein, or which by any present or future law may have priority over the indebtedness secured hereby either in lien or in distribution out of the proceeds of any judicial sale, without regard to any law heretofore or hereafter to be enacted imposing payment of the whole or of any part upon the Mortgagee; and insofar as any such tax, assessment, levy, liability, obligation or encumbrance is of record, the same shall be promptly satisfied and discharged of record and the original official document (such as, for instance, the tax receipt or the satisfaction paper officially endorsed or certified) shall be placed in the hands of the Mortgagee no later than such dates; provided, however, that if, pursuant to this Mortgage or otherwise, the Mortgagor shall have deposited with the Mortgagee before the due date thereof sums sufficient to pay any such taxes, assessments, levies, water and sewer rents, charges or claims, and the Mortgagor is not otherwise in default, they shall be paid by the Mortgagee; and provided further, that if the Mortgagor in good faith and by appropriate legal action shall contest the validity of any such items or the amount thereof, and shall have established on its books or by deposit of cash with the Mortgagee, as the Mortgagee may elect, a reserve for the payment thereof in such amount as the Mortgagee may require, then the Mortgagor shall not be required to pay the item or to produce the required receipts: (a) while the reserve is maintained; and (b) so long as the contest operates to prevent collection, is maintained and prosecuted with diligence, and shall not have been terminated or discontinued adversely to the Mortgagor. The Mortgagor shall furnish the Mortgagee with annual receipted tax bills evidencing payment within ninety (90) days from their initial due date. Page 3 of 15 CFN: 20220948586 BOOK 33512 PAGE 3526 3. INSTALLMENTS FOR INSURANCE, TAXES AND OTHER CHARGES. Without limiting the effect of Paragraphs 2 or 5 hereof, the Mortgagee may require the Mortgagor to pay to the Mortgagee, monthly with the monthly installments of principal and interest, an amount equal to one -twelfth (1/12) of the annual premiums for the insurance policies referred to hereinabove and the annual real estate taxes, water and sewer rents, any special assessments, charges or claims and any other item which at any time may be or become a lien upon the Mortgaged Property prior to the lien of this Mortgage; and on demand from time to time the Mortgagor shall pay to the Mortgagee any additional sums necessary to pay the premiums and other items, all as estimated by the Mortgagee. The amounts so paid shall be used in payment thereof if the Mortgagor is not otherwise in default hereunder. No amount so paid shall be deemed to be trust funds but may be commingled with general funds of the Mortgagee, and no interest shall be payable thereon. If, pursuant to any provision of this Mortgage, the whole amount of the unpaid principal debt becomes due and payable, the Mortgagee shall have the right, at its election, to apply any amount so held against the entire indebtedness secured hereby. At the Mortgagee's option, the Mortgagee from time to time may waive, and after any such waiver may reinstate, the provisions of this Paragraph requiring monthly payments. 4. ATTORNEYS' FEES AND COSTS. Subject to Paragraph 11, in the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Mortgage, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. 5. INSURANCE. The Mortgagor shall keep the buildings and improvements now or hereafter erected on the Mortgaged Property continuously insured under a policy or policies providing coverage on an "all risk" basis, in a sum not less than full insurable value or replacement cost valuation„ including coverage for windstorm, hail, and flood insurance if applicable, in a company or companies acceptable to the Mortgagee. Such policy shall also include coverage for Law and Ordinance and Loss of Rents with a maximum policy deductible on windstorm, hail and flood of 5%. In addition, the Mortgagor agrees to continuously maintain Commercial General Liability with limits of $1,000,000 per occurrence, $2,000,000 policy aggregate protecting against bodily injury and property damage arising from claims involving premises and operations, products and completed operations, personal and advertising injury liability, and hired and non owned automobile exposures. In addition, the Mortgagor shall furnish Umbrella Liability coverage with limits of at least $2,000,000 per occurrence, $2,000,000 policy aggregate. The policy or policies of insurance contained herein shall list the Mortgagee as an additional insured on all third party liability policies and loss payee as to property, and be held by and be payable to the Mortgagee. In the event any sum of money becomes payable under such policy or policies, the Mortgagee shall have the option to receive and apply the same on account of the indebtedness secured by this Mortgage or to permit the Mortgagor to receive and use it, or any part thereof, for other purposes, without thereby waiving or impairing any equity lien or right under or by virtue of this Mortgage. In the event the Mortgagor fails to procure and maintain the insurance coverage required hereby, the Mortgagee may procure and pay for such insurance or any part thereof, without waiving or affecting its option to foreclose this Mortgage, or any right thereunder. Each and every such payment made by the Mortgagee shall be secured by this Mortgage; shall be due and payable on demand; and, shall bear interest from the date each such payment is made at the maximum rate permitted by Page 4 of 15 CFN: 20220948586 BOOK 33512 PAGE 3527 law. Notwithstanding any provision contained herein, Mortgagee will not exercise its option to receive and apply the insurance funds to the indebtedness if there has not been an event of default under the Loan Documents and Mortgagor demonstrates there are sufficient funds to rebuild, repair or restore the improvements on the Mortgaged Property. 6. CARE OF THE MORTGAGED PROPERTY. The Mortgagor shall exercise reasonable care in the maintenance of the Mortgaged Property, and shall not permit, commit or suffer any waste, impairment or deterioration of the Mortgaged Property or any part thereof. In the event the Mortgagor fails to keep the Mortgaged Property in good repair, the Mortgagee may make such repairs as it may deem necessary in its sole discretion for the proper preservation thereof, and the full amount of each such payment shall be due and payable with interest at the maximum rate permitted by law on demand, and shall be secured by the lien of this Mortgage. 7. EXISTING/OTHER MORTGAGES AND OBLIGATIONS. Any default in the payment or terms and conditions of any existing or other mortgage(s), or any modification of, and/or acceptance of future advances from, any existing or other mortgage(s), other than in connection with the Permitted Senior Financing, without the notice and prior written approval of Mortgagee, shall constitute a default hereunder and the Mortgagee, at its option, may declare all sums due and payable and accelerate the entire indebtedness. The Mortgagee may, at its option, and without waiving its right to accelerate the indebtedness hereby secured and to foreclose the same, pay either before or after delinquency any or all of those certain obligations required by the terms hereof to be paid by the Mortgagor for the protection of the Mortgage security or for the collection of the indebtedness hereby secured. All sums so advanced or paid by Mortgagee shall be charged into the mortgage account, and every payment so made shall bear interest from the date thereof at the delinquent rate specified in said Mortgage Note, and become an integral part thereof, subject in all respects to the terms, conditions and covenants of the aforesaid Promissory Note, and this Mortgage, as fully and to the same extent as though a part of the original indebtedness evidenced by said Note and secured by this Mortgage, excepting however, that said sums shall be repaid to the Mortgagee within fifteen (15) days after demand by the Mortgagee to the Mortgagor for said payment. S. INSPECTION. The Mortgagee, and any persons authorized by the Mortgagee, shall have the right at any time, upon reasonable notice to the Mortgagor, to enter the Mortgaged Property at a reasonable hour to inspect and photograph its condition and state of repair, subject to the rights of tenants under the terms of their leases. 9. ACCELERATION OF MATURITY. That (a) in the event of any breach of this Mortgage, or default on the part of the Mortgagor which is not cured within thirty (30) days following written notice from the Mortgagee, or if such default cannot practicably be cured within thirty (30) days, then within such additional time as may be required to effect a cure, so long as (i) the cure is commenced within thirty (30) days and is diligently prosecuted and (ii) the lack of a cure during such continuing cure period has no material adverse effect on the Mortgaged Property, or (b) in the event any of said sums of money herein referred to be not promptly and fully paid within fifteen (15) days next after the same severally become due and payable, without demand or notice; or (c) in the event each and every stipulation, agreement, Page 5 of 15 CFN: 20220948586 BOOK 33512 PAGE 3528 condition and covenants of the Note, this Mortgage, or any of the Loan Documents, arc not duly, promptly and fully performed, discharged, executed, effected, completed, complied with and abided by, following the applicable notice and cure periods; or (d) in the event the Mortgagor shall fail, within ten (10) days written notice by the Mortgagee to execute a Mortgagor's certificate in favor of any assignee or prospective assignee of the Mortgagee's interest hereunder which certificate shall contain such acknowledgments, affirmations, and covenants as may be reasonably required to enable the Mortgagee to assign their interest hereunder, or (e) upon the rendering by any court of last resort of a decision that an undertaking by the Mortgagor as herein provided to pay taxes, assessments, levies liabilities, obligations and encumbrances is legally inoperative or cannot be enforced, or (f) in the event of the passage of any law changing in any way or respect the laws now in force for the taxation of mortgages or debts secured thereby, or the manner of collection of any such taxes, so as to materially adversely affect this Mortgage or the debt secured hereby; or (g) in the event there exists an event of default under and pursuant to the terms of any other obligation of any kind or nature whatsoever of the Mortgagor to the Mortgagee, direct or contingent, whether now existing or hereafter due, existing, created or arising, then in either or any such event, the said aggregate sum mentioned in said Note then remaining unpaid, with interest accrued, and all other fees and charges due in connection therewith, and all monies secured hereby shall become due and payable forthwith, or thereafter, at the option of the Mortgagee or successor mortgagee hereof, as fully and completely as if all of the sums of money were originally stipulated to be paid on such day, anything in the Note and/or in this Mortgage to the contrary notwithstanding; and thereupon or thereafter, at the option of the Mortgagee or successor mortgagee hereof, without notice or demand, suit at law or in equity, therefore, or thereafter begun, may be prosecuted as if all money secured hereby had matured prior to its institution. 10. NO ADDITIONAL FINANCING. The Mortgagor hereby covenants and agrees that Mortgagor shall not procure any other financing in connection with the Mortgaged Property without the prior written consent of the Mortgagee other than financings disclosed to the Mortgagee in writing as of the date hereof. 11. DEFENSE OF MORTGAGED PROPERTY AND MORTGAGE. If any action or proceeding shall be commenced by any person other than the Mortgagee, and the Mortgagee is made a party, or in which it shall become necessary for the Mortgagee to defend or take action to uphold or defend the lien of this Mortgage, all sums paid or incurred by the Mortgagee for the expense of any litigation, including court costs and reasonable attorneys' fees incurred in any trial, appellate, and bankruptcy proceedings, to prosecute or defend the rights and liens created by this Mortgage shall be paid by the Mortgagor, together with interest thereon at the maximum rate permitted by law from the date thereof, and any such sum and interest thereon shall be a claim upon the Mortgaged Property, attaching or accruing subsequent to the lien of this Mortgage, and shall be secured by the lien of this Mortgage. 12. CONDEMNATION. In the event the Mortgaged Property or any part thereof shall be condemned under the power of eminent domain, the Mortgagee shall have the right to demand that all damages awarded for such taking be paid to the Mortgagee and shall be entitled to receive same, up to the aggregate amount then remaining unpaid on the Note and this Mortgage, and any such sums shall be applied to the payments last payable thereof. Page 6 of 15 CFN: 20220948586 BOOK 33512 PAGE 3529 13. SUBROGATION. To the extent of the indebtedness of the Mortgagor to the Mortgagee as described in the Note, the Mortgagee shall be subrogated to the lien and the rights of the owners and holders of cach and every mortgage, lien or other encumbrance on the Mortgaged Property which is paid or satisfied, in whole or in part, out of the proceeds of the Note. The respective liens of such mortgages, liens or other encumbrances shall be and are hereby security for the Note, as if they had been regularly assigned, transferred, and delivered unto the Mortgagee, notwithstanding the fact that the same may be set aside and canceled of record. It is the intention of the parties hereto that the prior mortgages, liens or other encumbrances will be satisfied and canceled of record by the holders thereof at or about the time of the recording of this Mortgage. 14. APPOINTMENT OF RECEIVER. At any time while a suit is pending to foreclose or to reform this Mortgage or to enforce any claims arising hereunder, the Mortgagee may apply to a court of appropriate jurisdiction for the appointment of a receiver, and such court shall forthwith appoint a receiver of the Mortgaged Property, including all and singular the income, profits, rents, issues and revenues from whatever source derived. The receiver shall have all the broad and effective functions and powers in anywise entrusted by a court to a receiver, and such appointment shall be made by such court as an admitted equity and as a matter of absolute right to the Mortgagee without reference to the adequacy or inadequacy of the value of the Mortgaged Property, or to the solvency or insolvency of the Mortgagor or the Defendants. All income, profits, rents, issues and revenues collected by the receiver shall be applied by such receiver according to the lien of this Mortgage, and the practice of such court. 15. NO TRANSFER OF MORTGAGED PROPERTY. It is expressly agreed that should the Mortgagor convey title to the Mortgaged Property or, except as set forth in the Loan Agreement, any legal or equitable interest therein, to any person, firm or corporation or shall permit or create any further encumbrances upon the Mortgaged Property without the prior written approval of the Mortgagee to such conveyance or encumbrance, all sums outstanding under the Note and secured by this Mortgage shall become immediately due and payable, at the option of the Mortgagee. 16. LEASES AFFECTING MORTGAGED PROPERTY. The Mortgagor shall comply with and observe its obligations as landlord under all leases affecting the Mortgaged Property or any part thereof. Upon request, the Mortgagor shall furnish promptly to the Mortgagee executed copies of all such leases now existing or hereafter created. The Mortgagor shall not accept payment of rent more than one (1) month in advance without the prior written consent of the Mortgagee. Nothing contained in this Section or elsewhere in this Mortgage shall be construed to make the Mortgagee a mortgagee in possession unless and until the Mortgagee actually takes possession of the Mortgaged Property either in person or through an agent or receiver. To the extent not provided by applicable law, each lease of the Mortgaged Property, shall provide that, in the event of the enforcement by the Mortgagee of the remedies provided for by law or by this Mortgage, the lessee thereunder will, if requested by the Mortgagee or by any person succeeding to the interest of the Mortgagee as the result of said enforcement, automatically become the lessee of any such successor in interest, without any change in the terms or other provisions of the respective lease; provided, however, that said successor in interest shall not be bound by (i) any payment of rent or additional rent for more than one (1) month in advance, except prepayments in the nature of security for the performance by said Page 7 of 15 CFN: 20220948586 BOOK 33512 PAGE 3530 lessee of its obligations under said lease not in excess of an amount equal to one (1) month's rental, or (ii) any amendment or modification in the lease made without the consent of the Mortgagee or any successor in interest. Each lease shall also provide that, upon request by said successor in interest, the lessee shall execute and deliver an instrument or instruments confirming its attornment. 17. ASSIGNMENT OF RENTS, ISSUES AND PROFITS. The Mortgagor does hereby bargain, sell, transfer, assign, convey, set over and deliver unto the Mortgagee, as security for the payment and performance of all the terms and conditions of the Note and this Mortgage, and any and all amendments, extensions and renewals thereof, all Leases affecting the Mortgaged Property or any part thereof now existing or which may be executed at any time in the future during the life of this Mortgage, and all amendments, extensions and renewals of said leases and any of them, and all rents and other income which may now or hereafter be or become due or owing under the Leases, and any of them, on account of the use of the Mortgaged Property, it being intended hereby to establish a complete transfer of the leases hereby assigned and all the rents and other income arising thereunder and on account of the use of the Mortgaged Property unto the Mortgagee, with the right, but without the obligation, to collect all of said rents and other income which may become due during the life of the Note and this Mortgage. The Mortgagor agrees to deposit with the Mortgagee upon demand such leases as may from time to time be designated by the Mortgagee. Although it is the intention of the parties that this shall be a present assignment, it is expressly understood and agreed, anything herein contained to the contrary notwithstanding, that the Mortgagee shall not exercise any of the rights or powers herein conferred upon it until a default shall occur under the terms and provisions of the Note and this Mortgage, but upon the occurrence of any default the Mortgagee shall be entitled, upon notice to the tenants, to all rents and other amounts then due under the leases and thereafter accruing, and this Mortgage shall constitute a direction to and full authority to the tenants, lessees or other occupants of the premises (hereinafter collectively referred to as the "Tenants") to pay all said amounts to the Mortgagee without proof of the default relied upon. The Tenants are hereby irrevocably authorized to rely upon and comply with any notice or demand by the Mortgagee for the payment to the Mortgagee of any rental or other sums which may be or thereafter become due under the leases, or for the performance of any of the Tenants undertakings under the leases and shall have no right or duty to inquire as to whether any default under this Mortgage has actually occurred or is then existing. 18. MORTGAGE CONSTITUTES SECURITY AGREEMENT. This Mortgage also constitutes a security agreement as defined under the Uniform Commercial Code. The Mortgagor hereby grants to the Mortgagee a security interest in and to all furniture, furnishings, equipment, machinery, and personal property of every nature whatsoever now owned or hereafter acquired by the Mortgagor located upon the Mortgaged Property together with all proceeds therefrom and as further described in an exhibit to the Security Agreement of even date herewith, if any. The Mortgagor shall execute any and all documents as the Mortgagee may request, including, without limitation, financing statements pursuant to the Uniform Commercial Code as adopted by the State of Florida, to preserve and maintain the priority of the lien created hereby on property which may be deemed personal property or fixtures. The Mortgagor hereby authorizes and empowers the Mortgagee to execute and file on behalf of the Mortgagor all financing statements and refiling and continuations thereof as the Mortgagee deems necessary or advisable to create, preserve or protect said lien. The Mortgagor and Mortgagee expressly agree Page 8 of 15 CFN: 20220948586 BOOK 33512 PAGE 3531 that the filing of a financing statement shall never be construed as in anywise derogating from or impairing the express declaration and intention of the parties hereto that all such personality located on or utilized in connection with the real property encumbered by this Mortgage shall at all times and for all purposes, in all proceedings both legal and equitable, be deemed a part of the real property encumbered by this Mortgage. 19. CARE OF PROPERTY. (a) The Mortgagor shall preserve and maintain the Mortgaged Property in good condition and repair. Except for: (i) repairs or replacements for ordinary wear and tear or in the ordinary course of management of the Mortgaged Property; (ii) tenant or similar improvements and upgrades; and (iii) repairs, replacements, or other restorations in the event of a casualty or condemnation that are performed in accordance with the Loan Agreement, the Mortgagor shall not remove, demolish, alter or change the use of any building, structure or other improvement presently or hereafter on the Land constituting any part of the Mortgaged Property without the prior written consent of the Mortgagee. The Mortgagor shall not permit, commit or suffer any waste, impairment or deterioration of the Mortgaged Property or of any part thereof, and will not take any action which will increase the risk of fire or other hazard to the Mortgaged Property or to any part thereof. The Mortgagor shall comply with all applicable local, state, and federal regulations in regards to the Property. (b) Except as otherwise provided in this Mortgage, no fixture, personal property or other part of the Mortgaged Property shall be removed, demolished or altered, without the prior written consent of the Mortgagee. The Mortgagor may sell or otherwise dispose of, free from the lien of this Mortgage, furniture, furnishings, equipment, tools, appliances, machinery, fixtures or appurtenances, subject to the lien hereof, which may become worn out, undesirable or obsolete, only if they are replaced immediately with similar items of at least equal value which shall, without further action, become subject to the lien of this Mortgage. 20. MORTGAGE SECURES INDEBTEDNESS. It is expressly agreed and understood that this Mortgage secures the indebtedness and the obligation of the Mortgagor to the Mortgagee with respect to the Note, as the same is evidenced by the Note, and all renewals, extensions and modifications thereof. This Mortgage shall not be deemed released, discharged or satisfied until the entire indebtedness evidenced by the Note is paid in full. 21. MORTGAGEE'S REMEDIES CUMULATIVE. The Mortgagor agrees that all rights of the Mortgagee hereunder shall be separate, distinct, and cumulative, and that none shall be in exclusion of the other, and that no act of the Mortgagee shall be construed as an election to proceed under any provision of covenant herein to the exclusion of any other, notwithstanding anything herein to the contrary. 22. FUTURE ADVANCES. Pursuant to the laws of the State of Florida, this Mortgage shall secure not only the existing indebtedness evidenced by the Note, but also such future advances as may be made by the Mortgagee to the Mortgagor in accordance with the Note, this Mortgage, or any other Loan Document executed in connection herewith, whether or not such advances are obligatory or are to be made at the option of the Mortgagee, or otherwise, and as are made within twenty (20) years from the date hereof, to the same extent as if such Page 9 of 15 CFN: 20220948586 BOOK 33512 PAGE 3532 future advances were made on the date of the execution of this Mortgage. The total amount of indebtedness that may be so secured may decrease or increase from time to time, but the total unpaid balance so secured at one time shall not exceed one and a half times the face amount of the Note, plus interest thereon, and any disbursements made for the payment of taxes, levies or insurance on the Mortgaged Property with interest on such disbursements at the rate designated in the Note to apply following a default thereunder. 23. INDEMNIFICATION. The Mortgagor hereby protects, indemnifies, defends, and saves harmless the Mortgagee, its officers, directors, agents and employees, from and against any and all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) imposed upon, incurred by or asserted against the Mortgagee or any of such persons by reason of (a) ownership of any interest in the Mortgaged Property or any part thereof, (b) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Mortgaged Property or any part thereof or the adjoining sidewalks, curbs, vaults and vault space, if any, streets or ways, (c) any use, disuse or condition of the Mortgaged Property or any part thereof, or the adjoining sidewalks, curbs, vaults and vault space, if any, or any streets or ways, (d) any failure on the part of the Mortgagor to perform or comply with any of the terms hereof or of any of the Loan documents executed in connection herewith, or any inaccuracy in any representation or warranty made by the Mortgagor herein or in any of the Loan Documents executed in connection herewith, (e) any necessity to defend any of the right, title or interest conveyed by this Mortgage, (f) the performance of any labor or services or the furnishing of any materials or other property in respect of the Mortgaged Property or any part thereof, (g) any subsidence or erosion of any part of the surface of the Mortgaged Property, including any shoreline or any bank of any river, stream, creek, lake, ocean or other water source, or (h) the location or existence of asbestos or any toxic or hazardous waste, chemicals, materials or substance on, at, in or under the Mortgaged Property or any part thereof. If any action, suit or proceeding is brought against the Mortgagee, or any of its officers, directors, agents or employees, for any such reason, the Mortgagor, upon the request of such party, will, at the Mortgagor's expense, cause such action, suit or proceeding to be resisted and defended by counsel satisfactory to the Mortgagee or such person. Any amounts payable to an indemnified party under this Section which are not paid within ten (10) days after written demand therefor shall bear interest at the default rate of interest provided in the Note from the date of such demand, and such amounts, together with such interest, shall be indebtedness secured by this Mortgage. The obligations of the Mortgagor under this Section shall survive any defeasance of the Mortgage. 24. ' HAZARDOUS MATERIALS. The Mortgagor agrees that it will not use, generate, store or dispose of Hazardous Materials on the Mortgagcd Property. For purposes hereof, "hazardous materials" include (but are not limited to) materials defined as "hazardous waste" under the Federal Resource Conservation and Recovery Act and similar state laws, or as "hazardous substances" under the Federal Comprehensive Environmental Response, Compensation and Liability Act and similar state laws. Hazardous materials include (but are not limited to) solid, semi -solid, liquid or gaseous substances that are toxic, ignitable, corrosive, carcinogenic or otherwise dangerous to human, plant or animal health and well-being. Examples of hazardous waste include paints, solvents, chemicals, petroleum products, batteries, transformers, and other discarded man-made materials with hazardous characteristics. The Mortgagee shall have all remedies at law and equity for failure of the Mortgagor to carry out the Page 10 of 15 CFN: 20220948586 BOOK 33512 PAGE 3533 foregoing obligation, including but not limited to specific performance, damages, reasonable attorneys' fees and court costs. This provision shall survive payment of the Note and termination of this Mortgage. 25. REPRESENTATIONS AND WARRANTIES. In order to induce the Mortgagee to make the Loan evidenced by the Note, the Mortgagor represents and warrants that: (a) there are no actions, suits or proceedings pending or threatened against or affecting the Mortgagor or any portion of the Mortgaged Property, or involving the validity or enforceability of this Mortgage or the priority of its lien, before any court of law or equity or any tribunal, administrative board or governmental authority, and the Mortgagor is not in default under any other indebtedness or with respect to any order, writ, injunction, decree, judgment or demand of any court or any governmental authority; (b) the execution and delivery of the Note, this Mortgage and all other Loan Documents do not and shall not (i) violate any provisions of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award applicable to the Mortgagor or any other person executing the Note, this Mortgage or other Loan Documents, nor (ii) result in a breach of, or constitute a default under, any indenture, bond, mortgage, lease, instrument, credit agreement, undertaking, contract or other agreement to which the Mortgagor or such other person is a party or by which either or both of them or their respective properties may be bound or affected; (c) the Note, this Mortgage and all other Loan Documents constitute valid and binding obligations of the Mortgagor and any other person executing the same, enforceable against the Mortgagor and such other person(s) in accordance with their respective terms; (d) there is no fact that the Mortgagor and any guarantor(s) of the Loan have not disclosed to the Mortgagee in writing that could materially adversely affect their respective properties, business or financial conditions or the Mortgaged Property or any other collateral for the Loan; (e) the Mortgagor and any guarantor(s) of the Loan have duly obtained all permits, licenses, approvals and consents from, and made all filings with, any governmental authority (and the same have not Iapsed nor been rescinded or revoked) which are necessary in connection with the execution and delivery of this Mortgage and any other Loan Document, the making of the Loan, the performance of their respective obligations under any Loan Document, or the enforcement of any Loan Document; and that all such representations and warranties shall survive the closing of the Loan and any bankruptcy proceedings. 26. SEVERABILITY OF INVALID PROVISIONS. In the event any provision of the Note and or this Mortgage should be held unconstitutional, illegal or unenforceable for any reason, such provision shall not affect, alter, or otherwise impair any other provision of the Note and or this Mortgage. 27. NO WAIVER. It is expressly agreed and understood that a waiver by the Mortgagee of any right or rights conferred to it hereunder with regard to any one transaction or occurrence shall not be deemed a waiver of such right or rights to any subsequent transaction or occurrence. It is further agreed that any forbearance or delay by the Mortgagee in the enforcement of any right or remedy hereunder shall not constitute or be deemed a waiver of such right or remedy. 28. GOVERNING LAW AND VENUE. This Mortgage shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Mortgage must be Page 11 of 15 CFN: 20220948586 BOOK 33512 PAGE 3534 brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami -Dade County is not convenient. 29. HEADINGS. The headings of the articles, sections, paragraphs and subdivisions of this Mortgage are for convenience and ease of reference only, and are not to be considered a part hereof, and shall not limit or otherwise affect any of the terms or provisions hereof. 30. GENDER AND NUMBER. In this Mortgage and the Note it secures, the singular shall include the plural and the masculine shall include the feminine and neuter. 31. PARTIES BOUND; NO ORAL MODIFICATION'S. Each and every of the terms, covenants and conditions contained herein shall be binding upon the parties hereto and their successors, heirs, assigns and devisee. This Mortgage is not subject to modification other than by a written document or instrument executed by the party or parties to be charged with such modification. 32. CAPITALIZED TERMS. All capitalized terms not defined herein shall have the meanings provided in the Loan Agreement and the Exhibits thereto. 33. WAIVER OF TRIAL BY JURY. THE MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS MORTGAGE, OR ANY OF THE LOAN DOCUMENTS OR THE FINANCING CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE EXTENDING THE LOAN SECURED BY THIS MORTGAGE. [SIGNATURE ON FOLLOWING PAGE] Page 12 of 15 CFN: 20220948586 BOOK 33512 PAGE 3535 IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand and seal the day and year first above written. WITNESSES: Print Name: c-t, suA F1� �51ut.•+r Fz. Print Na (v:teur STATE OF FLORIDA 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: 9.,J Print Name: Tony Del 1 ozzo Title: Vice President Date: ACKNOWLEDGMENT COUNTY OF MIAMI-DADE ) SS: The foregoing instrument v Itd'pliy s ackno. !edged be re me by means of sical presence or El online notarization this 3b"' day of kL S' , 2022 by Tony Del Pozzo, as Vice President of The Gallery at West Brickell Manager, LLC, a Florida limited liability company, the manager of The Gallery at West Brickell, LLC, a Florida limited liability company, who is personally known to me or has produced as identification. °A+-t-• VANESSAPILOTO MY COMMISSION # HH 213353 off 0 - EXPIRES: February 15, 2026 Priv t ame: O. rS.SGi. l O 411 Notary Public, State of Florida at large CFN: 20220948586 BOOK 33512 PAGE 3536 EXHIBIT A Legal Description of The Properly Parcel 1- Leasehold 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. CFN: 20220948586 BOOK 33512 PAGE 3537 a aa5 EXHIBIT B Permitted Encumbrances on the Mortgaged Property All permitted encumbrances on the Property are described in that certain Title Insurance Commitment Order Number 10772285) issued by Fidelity National Title Insurance Company, effective as of September 12, 2022 at 8:00 a.m.