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HomeMy WebLinkAbout24457AGREEMENT INFORMATION AGREEMENT NUMBER 24457 NAME/TYPE OF AGREEMENT WYNWOOD WORKS MTZ, LLC & OMNI CRA DESCRIPTION NON-PROFIT GRANT AGREEMENT/AFFORDABLE RENTAL UNITS EFFECTIVE DATE May 25, 2023 ATTESTED BY TODD B. HANNON ATTESTED DATE 5/24/2023 DATE RECEIVED FROM ISSUING DEPT. 5/24/2023 NOTE Q N5-7 NON-PROFIT GRANT AGREEMENT THIS NON-PROFIT GRANT AGREEMENT (the "Agreement") is dated as of the 2 5- clay of May, 2023, by and between Wynwood Works MTZ, LLC, a Florida limited liability company (the "NON-PROFIT") and the Omni Redevelopment District Community Redevelopment Agency, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"). RECITALS A. The CRA has entered into an Agreement for Development of Property with an Effective Date of November 24, 2020, as amended (the "Development Agreement"), with Wynwood Works, LLC, a Florida limited liability company ("Owner"), with respect to the development of a project consisting of approximately 120 affordable rental units on the property described on Exhibit "A" attached hereto (the "Property") as more particularly described in the Development Agreement. B. Pursuant to the terms of the Development Agreement, the CRA has agreed to make a grant in an amount of Nine Million Nine Hundred Thousand and No/100 Dollars ($9,900,000.00) (the "CRA Contribution") to the NON-PROFIT which CRA Contribution will be loaned by the NON-PROFIT to the Owner pursuant to the terms of the Development Agreement, this Agreement and that certain Funding Agreement of even date herewith by and among the Owner and the NON- PROFIT. C. In accordance with the Non -Profit Loan Documents, as such term is hereinafter defined, the proceeds of the Non -Profit Loan, as such term is hereinafter defined, shall be delivered to The Bank of New York Mellon Trust Company, N.A. (the "Trustee"), the trustee on behalf of the Housing Finance Authority of Miami -Dade County, Florida, as issuer of the Housing Finance Authority of Miami -Dade County, Florida Multifamily Mortgage Revenue Bonds, Series 2023A (Wynwood Works) and Housing Finance Authority of Miami -Dade County, Florida Multifamily Mortgage Revenue Bonds, Series 2023B (Wynwood Works) (collectively the "Tax -Exempt Bonds"), to be held and disbursed pursuant to loan documents relating to the Tax -Exempt Bonds (collectively, the "Tax -Exempt Bond Documents"). D. The NON-PROFIT and the CRA desire to enter into this Agreement to set forth the terms and provisions pursuant to which the CRA will make the CRA Contribution to the NON-PROFIT and the NON-PROFIT will loan the CRA Contribution to the Owner. NOW THEREFORE, for and in consideration of $10.00 and other good and valuable consideration and the covenants and agreements hereinafter set forth, the parties agree as follows: 1. RECITALS. The Recitals to this Agreement are true and correct and are incorporated herein by reference and made a part hereof. 2. DEFINED TERMS. All defined terms utilized in this Agreement but not defined in this Agreement shall have the meaning ascribed to said terms in the Development Agreement. 1 3. GRANT. Subject to the satisfaction of the Conditions Precedent, as hereinafter defined, the CRA agrees to make the CRA Contribution to the NON-PROFIT. The CRA and the NON-PROFIT acknowledge and agree that the CRA Contribution is a grant and not a loan to the NON-PROFIT and that no portion of the CRA Contribution shall be repaid to the CRA. 4. USE OF CRA CONTRIBUTION. NON-PROFIT covenants and agrees to use the CRA Contribution solely for the purpose of loaning the CRA Contribution to the Owner in accordance with the terms and provisions of the Non -Profit Loan Documents and the Development Agreement. The NON-PROFIT acknowledges and the CRA and the Owner agree that the CRA shall, at the request of the Owner, fund the CRA Contribution directly to the Trustee to be held and disbursed pursuant to the terms of the Tax -Exempt Bond Documents. None of the proceeds of the CRA Contribution to the NON-PROFIT or any proceeds of the repayment of the Non -Profit Loan to the NON-PROFIT will be allocated for federal income tax purposes by the NON-PROFIT to the direct or indirect payment of any debt service on any obligation the interest payable on which is excluded from gross income for federal income tax purposes. In connection with the disbursement by the NON-PROFIT of any part of the proceeds of the CRA Contribution to the Owner pursuant to the Non -Profit Loan Documents or of any part of the proceeds of any repayment of the Non -Profit Loan, the NON-PROFIT will obtain the agreement of the Owner or other receipt of such funds, as the case may be, to the effect that (i) none of the proceeds of the CRA Contribution to the Owner or other recipient, as the case may be, pursuant to the Non -Profit Loan Documents or of any part of the proceeds of any repayment of the Non -Profit Loan will be allocated for federal income tax purposes by such recipient to the direct or indirect payment of any debt service on any obligation the interest payable on which is excluded from gross income for federal income tax purposes, and (ii) that such recipient will obtain a similar agreement from any subsequent recipient of any such proceeds. 5. TERMS OF LOAN TO THE OWNER. The NON-PROFIT covenants and agrees to loan to the Owner the CRA Contribution (the "Non -Profit Loan") in accordance with the terms and provisions of the loan documents, which shall be in a form agreed upon between the Owner and the NON-PROFIT (the "Non -Profit Loan Documents"). 6. CONDITIONS PRECEDENT. The obligations of the CRA to make the CRA Contribution to the NON-PROFIT is subject to the satisfaction or waiver of the following conditions precedent (the "Conditions Precedent") on or before the Closing Date: (a) All of the CRA Conditions Precedent set forth in Section 12 of the Development Agreement have either been satisfied or waived by the CRA. (b) The closing of the transaction contemplated by the Development Agreement shall be consummated simultaneously with the funding of the CRA Contribution. parties. Documents. (c) The Tax -Exempt Bond Documents has been executed by the appropriate (d) The Owner and the NON-PROFIT have executed the Non -Profit Loan 2 In the event the Conditions Precedent are not satisfied or waived by the CRA on or before the Closing Date, the CRA may either (i) terminate this Agreement, in which event the parties shall be released from all further obligations under this Agreement, or (ii) waive the conditions and proceed in accordance with this Agreement. The funding of the Non -Profit Loan shall be conclusive evidence of the satisfaction of, or CRA's waiver of, the Conditions Precedent. 7. REPRESENTATIONS OF THE CRA. The CRA makes the following representations: (a) The CRA is duly organized and validly existing under the laws of the State of Florida and has full power and capacity to own its properties, to carry out its business as presently conducted by the CRA and perform its obligations under this Agreement. (b) The CRA's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the CRA is a party or by which the CRA or the CRA's properties may be bound or affected. (c) This Agreement constitutes the valid and binding obligation of the CRA enforceable against the CRA in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 8. REPRESENTATIONS OF THE NON-PROFIT. The NON-PROFIT makes the following representations: (a) The NON-PROFIT is a limited liability company duly organized and validly existing under the laws of the State of Florida and has full power and capacity to carry out its business as currently conducted and to enter into the transactions contemplated by this Agreement. (b) The execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which it is a party or by which it may be bound or affected. (c) The sole member of the NON-PROFIT (i) is an organization described in Section 501(c)(3) of the Code, (ii) has received a letter or other notification from the Internal Revenue Service to that effect and such letter or other notification has not been modified, limited or revoked, (iii) is in compliance with all terms, conditions and limitations, if any, contained in such letter or other notification, it being expressly represented that the facts and circumstances which form the basis of such letter or other notification as represented to the Internal Revenue Service continue to exist, (iv) is exempt from federal income taxes under Section 501(a) of the Code and (v) is not controlled in any way by the Owner, the CRA, the City of Miami, Florida or Miami -Dade County, Florida, or the State of Florida within the meaning of Treasury Regulation § 1.150-1(b). (d) The NON-PROFIT has all requisite power and authority necessary to own, lease and operate its properties, to carry on its activities as now conducted and as presently proposed to be conducted and is, or will be, duly authorized to operate and loan the proceeds, under the laws, rulings, regulations and ordinances of the State of Florida and the departments, agencies and political subdivisions thereof. (e) Neither the execution and delivery of this Agreement and the other documents contemplated thereby to which the NON-PROFIT is a party or the consummation of the transactions contemplated thereby nor the fulfillment of or compliance with the provisions of any of the other documents contemplated thereby, will conflict with or result in a breach of or constitute a default by the NON-PROFIT under any applicable law or ordinance of the State of Florida or any applicable political subdivision thereof or of the NON-PROFIT's articles of organization or operating agreement, or any limited liability company restriction or any agreement or instrument to which the NON-PROFIT is a party or by which it is bound, or result in the creation or imposition of any lien of any nature upon any of the property of the NON-PROFIT under the terms of any such law, ordinance, articles of organization or operating agreement, restriction, agreement or instrument except as permitted by this Agreement. (f) The NON-PROFIT covenants that it (i) shall not perform any act or enter into any agreement which would adversely affect its federal income tax status and shall conduct its operations in the manner which conforms to the standards necessary to qualify the NON-PROFIT as a charitable organization within the meaning of Section 501(c)(3) of the Code or any successor provisions of federal income tax law. (g) The NON-PROFIT does not anticipate or have any intention or obligation to make any repayments to the CRA for repayment of the CRA Contribution. (h) Proceeds of the CRA Contribution will not be used to pay fees and expenses of the NON-PROFIT. (i) This Agreement constitutes the valid and binding obligation of the NON-PROFIT enforceable against the NON-PROFIT in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 9. ASSIGNABILITY. The rights and obligations under this Agreement may not be assigned by the NON-PROFIT without prior written approval of the CRA, which may be granted or withheld in the sole discretion of the CRA. 10. NOTICES. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by band, sent by recognized overnight courier (such as Federal Express), sent by another method provided herein or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope and addressed as follows: 4 If to NON-PROFIT: Wynwood Works MTZ, LLC c/o Mt. Zion Developments, Inc. 301 N.W. 9th Street Miami, FL 33136 Attention: Larry D. Capp With a copy to: GreenSpoon Marder Brickell World Plaza 600 Brickell Avenue, Suite 3600 Miami, FL 33131 Attention: Will Prince, Esq. If to CRA: Omni Redevelopment District Community Redevelopment Agency Attention: Executive Director, Jason Walker 1401 North Miami Avenue, 2nd Floor Miami, FL 33136 With a copy to: Office of the City Attorney City of Miami 444 S.W. 2nd Avenue 9th Floor Miami, FL 33130 Attn: Victoria Mendez, General Counsel And with a copy to: Staff Counsel Omni Redevelopment District Community Redevelopment Agency 1401 North Miami Avenue, 2nd Floor Miami, FL 33136 Notices personally delivered or sent by fax shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the date delivery is refused. 11. MISCELLANEOUS. (a) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties to 5 this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be construed against any one of the parties hereto. (b) In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. (c) In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. (d) In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and Paragraph headings shall be disregarded. (e) All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. (f) (g) County. Time shall be of the essence for each and every provision of this Agreement. This Agreement may not be recorded in the Public Records of Miami -Dade [Signatures on Following Pages] 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. CRA: OMNI REDEVELOPMENT DISTRICT COMMUNITY DEVELOPMENT AGENCY By: umberto Gonzalez, Ex ATTEST: annon, Clerk of the Board ector APPROVED FOR LEGAL SUFFICIENCY: ,64,,ca.06 Yi , General Counsel I;-oc c Srn -64 7 NON-PROFIT: WYNWOOD WORKS MTZ, LLC, a Florida limited liability company By: Mt. Zion Developments, Inc., a Florida not for profit corporation, its manager By: Name: Larry D. Capp Its: President EXHIBIT "A" Legal Description PARCEL A: LOT 7, BLOCK 3, LESS THE WEST 20 FEET THEREOF, OF BAY VIEW ADDITION TO MIAMI, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK B, AT PAGE 107 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. PARCEL B: BEGIN AT THE NORTHWEST CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TOWNSHIP 53 SOUTH, RANGE 41 EAST, MIAMI-DADE COUNTY, FLORIDA; THENCE RUN SOUTH 85 FEET; THENCE RUN EAST TO THE RAILROAD RIGHT OF WAY OF THE FLORIDA EAST COAST RAILWAY; THENCE RUN NORTHERLY ALONG SAID RIGHT OF WAY 85 FEET, MORE OR LESS, TO A POINT DIRECTLY EAST OF THE POINT OF BEGINNING; THENCE RUN WEST 135 FEET, MORE OR LESS, TO THE POINT OF BEGINNING, LESS THE WEST 35 FEET THEREOF. PARCEL C: COMMENCING AT A POINT 85 FEET SOUTH OF THE NORTHWEST CORNER OF THE SOUTH 1/2 OF SOUTH 1/2 OF SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TOWNSHIP 53 SOUTH, RANGE 41 EAST; THENCE RUN SOUTH 100 FEET; THENCE RUN EAST PARALLEL WITH THE NORTH BOUNDARY OF SAID SOUTH 1/2 OF THE SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TO THE WEST LINE OF THE RIGHT OF WAY OF THE FLORIDA EAST COAST RAILWAY COMPANY; THENCE RUN IN A NORTHERLY DIRECTION AND ALONG THE WEST LINE OF THE RIGHT OF WAY OF THE FLORIDA EAST COAST RAILWAY COMPANY TO A POINT DUE EAST OF THE POINT OF BEGINNING; THENCE RUN WEST AND PARALLEL WITH THE NORTH BOUNDARY OF SAID SOUTH 1/2 OF SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25 TO THE PLACE OR POINT OF BEGINNING, LYING AND BEING IN MIAMI-DADE COUNTY, FLORIDA; EXCEPTING FROM THE ABOVE MENTIONED TRACT, 20 FEET OFF THE WEST SIDE OF SAID PROPERTY CONVEYED TO THE CITY OF MIAMI FOR STREET PURPOSES AS SHOWN BY DEED RECORDED IN DEED BOOK 361, AT PAGE 355, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, AND ALSO LESS THE WEST 15 FEET THEREOF FOR ADDITIONAL RIGHT-OF-WAY. SAID LANDS ALSO KNOWN AS: A PORTION OF LOT 7, BLOCK 3, OF BAY VIEW ADDITION TO MIAMI, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK B, AT PAGE 107 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; AND A PORTION OF THE SOUTH 1/2 OF THE SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TOWNSHIP 53 SOUTH, RANGE 41 EAST; MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF THE SOUTH 1/2 OF THE SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TOWNSHIP 53 SOUTH, RANGE 41 EAST; THENCE RUN N 89°55'17" E FOR 35.00 FEET TO THE POINT OF BEGINNING; THE NEXT DESCRIBED LINE BEING ALONG A LINE 35 FEET EASTERLY OF THE CENTER LINE OF NORTH MIAMI AVENUE, THENCE N 00°16'34" E FOR 34.42 FEET TO A POINT ON THE NORTH LINE OF LOT 7; THENCE S 89°50'00" E ALONG SAID NORTH LINE OF LOT 7, FOR 108.40 FEET TO THE WESTERLY RIGHT OF WAY OF THE FLORIDA EAST COAST RAILWAY COMPANY, THENCE S 13°53'30" W ALONG SAID RIGHT OF WAY FOR 225.63 FEET; THENCE S 89°55'17" W ALONG A LINE SOUTHERLY OF AND PARALLEL WITH THE NORTH BOUNDARY OF SAID SOUTH 1/2 OF SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25 FOR 55.29 FEET, THENCE N 00°16'31" E ALONG THE LINE 35 FEET EASTERLY OF CENTER LINE NORTH MIAMI AVENUE FOR 185.00 FEET TO THE POINT OF BEGINNING. 7695541.7