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AGREEMENT 'INFORMATION AGREEMENT NUMBER 23731 NAME/TYPE OF AGREEMENT BRISAS DEL ESTE APARTMENTS, LLC DESCRIPTION INTERCREDITOR AGREEMENT/EXECUTION OF THE LOAN DOCUMENTS/MATTER ID:21-1391/#26 EFFECTIVE DATE November 8, 2021 ATTESTED BY TODD B. HANNON ATTESTED DATE 12/8/2021 DATE RECEIVED FROM ISSUING DEPT. 12/15/2021 NOTE /?c.4Z_44�.(J.,�?-4- Z CITY OF MIAMI DOCUMENT ROUTING FORM ORIGINATING DEPARTMENT: Housing and Community Development DEPT. CONTACT PERSON: Maria T. Ason EXT. 1971 NAME OF OTHER CONTRACTUAL PARTY/ENTITY: Brisas del Este, LLC IS THIS AGREEMENT A RESULT OF A COMPETITIVE PROCUREMENT PROCESS? TOTAL CONTRACT AMOUNT: $ o FUNDING INVOLVED? ❑ YES ® NO TYPE OF AGREEMENT: ❑ MANAGEMENT AGREEMENT ❑ PROFESSIONAL SERVICES AGREEMENT ❑ GRANT AGREEMENT ❑ EXPERT CONSULTANT AGREEMENT ❑ LICENSE AGREEMENT ❑ YES // NO ❑ PUBLIC WORKS AGREEMENT 0 MAINTENANCE AGREEMENT ❑ INTER -LOCAL AGREEMENT ❑ LEASE AGREEMENT ❑ PURCHASE OR SALE AGREEME OTHER: (PLEASE SPECIFY) Loan Documents PURPOSE OF ITEM (BRIEF SUMMARY): Execution of the loan documents in connection with the Brisas del Este Apartments.. COMMISSION APPROVAL DATE: / / FILE ID: N/A ENACTMENT NO.: ( lE 2 AC-01/2) IF THIS DOES NOT REQUIRE COMMISSION APPROVAL, PLEASE EXPLAIN.. LOw-- 27 ;.," ROUTING INFORMATION ." = Date PLEAS • RINT AND SIGN APPROVAL BY DEPARTMENTAL DIRECTOR 11/3/21 George Mer SIGNATUP a . , f y,.. Duran s ----/ SUBMITTED TO RISK MANAGEMENT ! j i"C-4/ Ann -Marie Sharpe %' SIGNATURE: LJ f SUBMITTED TO CITY ATTORNEY / -- 2_ j / Via r Iele SIG -�— APPROVAL BY ASSISTANT CITY MANAGER `�,�61 PRINT — r+ cc -� SIGNATURE:-- -- / RECEIVED BY CITY MANAGER tl /51 Art Noriega SIGNATURE: (.) % �� 1) ONE ORIGINAL TO CITY CLERK, 2) ONE COPY TO CITY ATTORNEY'S OFFICE, 3) REMAINING ORIGINAL(S) TO ORIGINATING DEPARTMENT }i ) t a�/ PRINT: SIGNATURE:. PRINT: SIGNATURE: PRINT: SIGNATURE: J44 i >4._ 44 ( oN PLEASE ATTACH THIS ROUTING FORM TO ALL DOCUMENTS THAT REQUIRE EXECUTION BY THE CITY MANAGER HOME LOAN AGREEMENT FOR BRISAS DEL ESTE APARTMENTS, LLC This HOME Investments Partnerships Program ("HOME Program") Loan Agreement this "Loan Agreement" or "Agreement") for Brisas Del Este Apartments is dated as of this � day of llfovtys4 2021, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter the "City" or "Lender"), and BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company (hereinafter the "Project Sponsor" or "Borrower"). FUNDING SOURCE: HOME Program AMOUNT: $1,000,000.00 in HOME Investment Partnership Funds RESOLUTION: The City of Miami Housing and Commercial Loan Committee ("HCLC") approval of April 16, 2021 PROJECT NAME: PROJECT TYPE: PROJECT SPONSOR: LAND OWNER: TERM OF THE AGREEMENT: AFFORDABILITY PERIOD: HOME ASSISTED UNITS: PROPERTY ADDRESS: IDIS NUMBER: 4 )� 00 SCI NUMBER: EXHIBITS ATTACHED HERETO AND INCORPORATED HEREIN: Brisas Del Este Apartments New Construction of a Rental Project Brisas Del Este Apartments, LLC, a Florida limited liability company Miami -Dade County, a public body, corporate and politic duly organized and existing under the laws of the State of Florida See Section 1.19 Thirty (30) years commencing on the Closeout of the Project Thirty (30) of the Affordable Units shall be HOME Assisted Units for eligible individuals; twenty-four (24) of the HOME Assisted Units shall be allocated for Low Income Households; six (6) of the HOME; Assisted Units shall be allocated for Very Low -Income Households 3000 Northwest 18 Avenue, Miami, Florida 33142 Page 1 of 41 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 owner of a long-term leasehold estate ub the real property ("Property") described in Exhibit "A." The Project Sponsor is constructing an eight -story mid -rise residential affordable housing project known as Brisas Del Este Apartments (the "Building"), that will increase the supply of rental housing units for Very Low and Low Income Households (ranging from 50% to 80% of AMI), by providing additional affordable rental units. WHEREAS, on April 16, 2021, the City's HCLC approved a loan of HOME Program funds in the amount of $1,000,000.00 for the hard and soft construction costs of the affordable rental housing Project; 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: 1.1 Affordability Period: The period of time that the Assisted Units must remain Affordable, in compliance with 24 CFR §92.252 and 24 CFR §92.254. The Affordability Period for this Project will be thirty (30) years, commencing on the Close -Out of the Project. Page 2 of 41 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: 1.4 Contract Records: 1.5 Effective Date: 1.6 Omitted 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. 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. The Date on which the Agreement has been signed by the City Manager and attested to by the City Clerk. 1.7 HUD: The United States Department of Housing and Urban Development. 1.8 HOME Assisted Units, or Assisted Units: Of the Project's total one hundred sixty-one (161) units, there will be thirty (30) HOME Assisted Units or Affordable units for households/individuals. Twenty-four (24) of the Affordable units shall be allocated for Low Income Households; and six (6) 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. 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 Page 3 of 41 1.9 HOME Loan Documents, or Loan Documents: 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. 1.10 HOME Funds, or, the Loan: The loan in the amount of $1,000,000.00 from the City to the Project Sponsor for Project construction. 1.11 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. 1.12 HOME Requirements: The requirements contained in this Agreement, 24 CFR Part 92 and any other requirements imposed by the City. 1.13 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. 1.14 Low -Income Household: Annual income does not exceed eighty percent (80%) of the median income for the area, as determined by HUD with adjustments and certain exceptions as provided in 24 CFR Part 92. 1.15 Very Low -Income Household: 1.16 Project: 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. Brisas Del Este Apartments is new construction consisting of a 8-floor residential mid -rise building located at 3000 Northwest 18 Avenue, Miami, Florida 33142. The project will have a total of one hundred sixty-one (161) units. The thirty (30) Page 4 of 41 1.17 Property: 1.18 Permitted Senior Financing: 1.19 Term: 1.20 The Covenant: 1.21 Omitted Affordable HOME Assisted Units shall be occupied by eligible tenants, as described herein, and shall be comprised of fifteen (15) one bedroom/one bathroom apartment units, and fifteen (15) two bedroom/one- bathroom apartment 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 3000 Northwest 18 Avenue, Miami, Florida 33142, 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. a. Bond Loan from the Housing Finance Authority of Miami -Dade County, Florida, in the amount of $27,250,000, as assigned to The Bank of New York Mellon Trust Company, N.A., as Fiscal Agent, which shall be reduced to not greater than $13,300,000 at the conversion to permanent financing; and b. Community Development Block Grant --Disaster Relief loan from Florida Housing Finance Corporation in the amount of $5,000,000; and c. Surtax/HOME loan from Miami -Dade County in the amount of $4,000,000, as more particularly described in 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. Page 5 of 41 1.22 Omitted 1.23 The Note: 1.24 The Mortgage The Promissory Note of even date herewith evidencing the Loan, executed by the Project Sponsor in favor of the City. The 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." 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 Brisas Del Este Apartments Project is new construction consisting of an 8-floor residential building located at 3000 Northwest 18 Avenue, Miami, Florida 33142. The Project consists of a total of one hundred sixty one (161) units. Thirty (30) will be HOME Assisted Units for Very Low -Income and Low -Income Households for a period of thirty (30) years, commencing at the Close -Out of the Project. Th thirty (30) HOME Assisted Units shall be occupied by for 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 Page 6 of 41 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 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 armum 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. 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; (ii) Commence construction of the Project within six (6) months from the Effective Date of this Agreement; (iii) Obtain all required certificates of occupancy for the Project, within eighteen (18) months from the Effective Date; (iv) Rent thirty (30) HOME Assisted Units to Low -Income and Very Low - Income Households in accordance with the requirements of this Agreement, within twelve (12) months after the issuance of certificates of occupancy for the Project, but in no event later than thirty (30) months from the Effective Date (v) Throughout the Affordability Period, rent the HOME Assisted Units to Low -Income Households and 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 HOME Note (and deliver, or cause to be delivered, the cancelled original HOME 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). Page 7 of 41 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 as described in Article VII below and the continuance of such Event of Default beyond the applicable cure period, if any. 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 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. 3.1.2 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. 3.1.3 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. 3.1.5 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. Page 8 of 41 (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 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. (b) 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 Page 9 of 41 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. 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. 3.1.20 Public Entity Crime Affidavit. Such Public Entity Crime Affidavit as may be required by the City. Page 10 of 41 3.1.21 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. 3.1.22 All other documents required by the City. 3.1.23 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 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 REQUIREMENTS 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. Page 11 of 41 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, 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 Low -Income and 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. Page 12 of 41 (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 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: 1) Tangible. All personal property having physical existence. 2) Intangible. All personal property having no physical existence such as patents, inventions and copyrights. (b) 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; Page 13 of 41 information on its condition; and information on the transfer, replacement, or disposition of the property. (b) 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. (c) 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. 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) Identify the full, correct, and legal name of all parties; (b) Describe the activities to be performed; (c) Present a complete and accurate breakdown of its price component; (d) 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. Page 14 of 41 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 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 Page 15 of 41 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. 4.6.1.2 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. 4.6.1.4 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. 4.6.1.5 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. (i) 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 Page 16 of 41 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. 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. (ii) 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. (iii) 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. Page 17 of 41 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. 4.6.2.2 The Project Sponsor shall comply with all applicable federal laws and regulations such as: 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) Page 18 of 41 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. 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. 5.2 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. 5.3 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. Page 19 of 41 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 Order Number ) issued by Fidelity National Title Insurance Company, effective as of , 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. 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. Page 20 of 41 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 Project. 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 as 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 twelve (12) months after the issuance of the certificates of occupancy for the Project, but in no event later than thirty (30) months from the Effective Date, rent all thirty (30) HOME Assisted Units to Low -Income Households, Very Low -Income Households in accordance with the requirements of this Agreement, (d) throughout the Affordability Period, rent the HOME Assisted Units to Low -Income Households and 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 Page 21 of 41 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 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. Page 22 of 41 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 and Schedule A 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) Any proposed Solicitation Notice, Invitation for Bids or Request for Proposals. (d) The disposal of any Contract Records during the Retention Period. (e) Notwithstanding the foregoing or any other provision of this Agreement or any other Loan Documents, and subject to the requirements of the following provisions of this Section 6.5 (e), it shall not be an Event of Default under this Agreement and the consent of the City is not required for (i) the transfer of the interests in Project Sponsor owned by Bank of America, N.A., its successors and assigns (collectively, "Investor") to an affiliate of Investor in accordance with the terms of Project Sponsor's operating agreement, as such agreement may be amended from time to time (the "Operating Agreement"), so long as affiliate has the same managerial rights, authority, and obligations as the Investor, and the affiliate, and its officers, directors, executives, employees, members, or agents (collectively, "Officers") have not been debarred or suspended by the City, the State, or the federal government, and provided that neither said affiliate, nor any of its Officers have been charged with and convicted of a public entity crime within the past 60 months, or (ii) the transfer of the ownership interests in Investor, so long as the managing member, general partner or controlling shareholder of Page 23 of 41 Investor is an affiliate of the Investor and has the same rights, authority, and obligations of Investor, and the affiliate, and its Officers have not been debarred or suspended by the City, the State, or the federal government, and provided that neither said affiliate, nor any of its Officers have been charged with and convicted of a public entity crime within the past 60 months. For the purposes of Section 6.5(e) of this Agreement, "public entity crime" and "convicted" are defined in paragraph § 287.133, Florida Statutes Any transfer or removal/replacement described in the previous paragraph hereto shall be subject to the following requirements: (A) the term "affiliate" shall mean any entity of which a majority of the voting interests is owned, directly or indirectly, by Investor, (B) any such transfer or removal/replacement shall be in compliance with all applicable conflict of interest requirements, the Legal Requirements and any other applicable requirements of this Agreement, and (C) the Project Sponsor shall provide, or cause the Investor to provide the City with written notice of such transfer or removal/replacement at least 15 days prior to its occurrence. 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 conflicting interest shall be utilized in respect to the Scope of Work or services provided hereunder. Any such conflict of Page 24 of 41 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 25 of 41 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 low income and very low income persons, 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 Page 26 of 41 minimum number and job titles subject to 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. (D) 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. Page 27 of 41 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 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 Department 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 Page 28 of 41 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 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. Page 29 of 41 7.1 of Default: ARTICLE VII DEFAULT The happening of any one or more of the following events shall constitute an Event (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 department of any governmental authority having jurisdiction over the Project Sponsor or the Property. (f) 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. (g) 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. Page 30 of 41 (h) 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. Project Sponsor declares bankruptcy and/or becomes insolvent, which shall result in immediate acceleration of the Loan's repayment in full. 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 an 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 7.1 (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 Page 31 of 41 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. 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 forgoing, 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) The Restrictive Covenant shall remain as a restriction on the Property throughout the Affordability Period; and (c) 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 Page 32 of 41 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 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 Page 33 of 41 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). 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. Page 34 of 41 11.2 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. 11.3 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 Program, the City may utilize any enforcement measures it deems necessary. 12.2 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. 12.3 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 Page 35 of 41 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 Department 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: Brisas Del Este Apartments, 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, Page 36 of 41 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" Exhibit "B" Exhibit "C" Exhibit "D" Exhibit "E" Exhibit "F" Exhibit "G" Exhibit "H" Exhibit "I" Exhibit "J" Schedule A Legal Description Scope of Work /Project Schedule Budget 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 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 April 16, 2021 ("Award Memoranda") are hereby incorporated by reference. To the extent Page 37 of 41 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 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's obligations pursuant to this Agreement shall be binding upon 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 Page 38 of 41 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. 12.19 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. 12.20 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. 12.21 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. [Signature Pages to Follow] Page 39 of 41 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. PROJECT SPONSOR: BRISAS DEL ESTE APARTMENTS, A FLORIDA LIMITED LIABILITY COMPANY By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager By: 7.1 IV - Print Name: Tony Del Pozzo Title: Vice President WITNESSES Print Name _ 04rialiEue Print Name: e a ,-e l,' 0 e 7 ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of fI physical presence or Cl online notarization, this 14 day of O , 2021 by Tony Del Pozzo as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company.,ie is personally known to me or has produced as identification. (NOTARY PUBLIC SEAL) 1iY P' •. DESIREE FAULKNER _°/•`��1��, Notary Public • State of Florida ;4,' Commission N GG 320239 I* n° My Comm. Expires Apr 13, 2023 Bonded through National Notary Assn. Signature of Person Taking Acknowledgment (Printed, Typed, or Stamped Name of Notary Page 40 of 41 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed' by their undersigned officials as duly authorized. ATTEST: CITY: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Ann -Marie S arp Vict a endez Director of ' 'sk anagement City A ey Arthur N ega V, City Manager APPROVED AS TO FORM AND CORRECTNESS: By: J�Z-- Page 41 of 41 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida. being more particularly described as follows: BEGIN at the NE Corner of said Tract "A'; thence SO2°3010"E along the East Boundary Line of said Tract "A", said line also being the West Right of Way Line of NW 18th Avenue, for 297.08 feet; thence 887°42'42' W for 17.28 feet to a Point of Curvature of a circular curve to the left, concave to the Southeast; thence Southwesterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Pont of Tangency; thence S37°25'01 HW for 21.88 feet; thence NO2°37'25"W for 87,95 feet; thence S87°551011 W along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A for 115.28 feet; thence NO2°30'42"W for 241.00 feet -thence N87°55'01"E along the North Boundary Line of said Tract "A", for 178A2 feet to the Point of Beginning. EXHIBIT "B" SCOPE OF WORK /PROJECT SCHEDULE WORK SCOPE / DEVELOPMENT SCHEDULE Brisas del Este Apartments Brisas del Este Apartments is new construction consisting of an eight -story mid -rise building located in a vacant parcel within a public housing property known as the Three Round Towers project at 3000 NW 18 Avenue, Miami in the Allapattah neighborhood. The project will have a total of one hundred sixty-one (161) units comprising of seventy- seven (77) one-bedroom/one-bathrooms units and eighty-four (84) two-bedroom/two- bathroom units. Thirty (30) units will be HOME -assisted for low and very low-income households. On -site parking will be available for the tenants. Estimated Date Building Permitting (Permit Ready) December 2021 Start of Construction January-2022 Construction Completion July-2023 Commence Affirmative Marketing April-2023 Initial Lease -Up (Leasing Activities Commence) July-2023 Stabilized Occupancy December-2023 EXHIBIT "C" BUDGET City of Miami - Department of Community Development COST ALLOCATION REPORT APPLICANT & PROJECT NAME: Brisas del Este Apartments, LLC & Brisas del Este Apartments Financing Sources: Specify Name Total Project % City HOME Tax -Exempt Bonds FHFC CDBG Miami -Dade County Surtax Deferred Developer Fee Equity Investment Land Acquisition (City Owned Lot) 402,500 1% - 402,500 Hard Costs 21,735,000 990,000 18,745,000 2,000,000 Construction (New Construction) 47% Site Work 1,177,467 3% - 1,177,467 Parking Garage 3,200,000 7% - 3,200,000 GC Fees 3,655,745 8% - 3,033,212 622,533 Contingency 1,488,411 3% 1,488,411 Total Hard Costs 31,256,623 67% 990,000 23,266,623 5,000,000 2,000,000 - - Soft Costs 779,430 779,430 Arch Design, Civil Engineering 2% Impact & School Fees 234,316 1% 234,316 Permits / Fees 430,856 1% 430,856 Legal 411,950 1% 100,000 311,950 Licenses / Environmental / Util Fees 157,579 0% 157,579 Appraisal / Surveys 57,500 0% 57,500 Insurance: Construction Period 503,976 1% 503,976 Marketing / Advertising 50,000 0% 50,000 Loan Closing / Financing Fees 1,273,004 3% 530,060 742,944 Interest / Carrying Costs 2,391,763 5% 1,362,656 1,029,107 Title Insurance & Recording 160,562 0% 160,562 Taxes 52,585 0% 52,585 Construction Acctg 50,000 0% 50,000 For Use by City: City incurred costs 10,000 0% 10,000 Other Soft Costs 1,282,221 - 282,221 1,000,000 Developer's Fees & Overhead 6,958,190 15% - 1,894,545 5,063,645 Soft Cost Contingency 181,722 0% - 181,722 Total Soft Costs 14,985,654 32% 10,000 4,830,877 - 1,000,000 1,894,545 7,250,232 Total Project Cost 46,644,777 100% 1,000,000 28,500,000 5,000,000 3,000,000 1,894,545 7,250,232 Total Square Footage Total Cost per S/F Total Units Number of City Units Percent of City Units to Total Units City Subsidy Per Assisted Unit 108,367 430.43 161 30 19% 33,333 EXHIBIT "D" FORM OF DISBURSEMENT AGREEMENT DISBURSEMENT AGREEMENT FOR BRISAS DEL ESTE APARTMENTS, LLC This Disbursement Agreement for HOME Investment Partnerships Program ("HOME") funds ("Disbursement Agreement") is made as of this T day of'0(�t , 2021 by and between BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company (hereinafter the "Project Sponsor"), and the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter the "City"). RECITALS WHEREAS, the Project Sponsor is developing a project known as Brisas del Este Apai liuents (the "Project"), that will increase the supply of rental housing units for Very Low and Low Income Households in the Allapattah neighborhood of Miami, Florida; and WHEREAS, on April 16, 2021, the City's Housing and Commercial Loan Committee ("HCLC") approved an allocation of HOME Investment Partnerships Program funds in the amount of One Million Dollars and No Cents ($1,000,000.00) to the Project Sponsor for the Project's hard and soft construction costs (the "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 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 Request for Disbursement, in a form acceptable to the City, 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 the Project (the "Contractor") and pursuant to the contract for the construction of the Project between the Project Sponsor and the Contractor (the Page 1 of 6 "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, 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; (ii) All governmental licenses and permits required by the Project as then completed have been obtained and are available for inspection by the City; Page 2 of 6 (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 (the "Allocation Retainage") 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. [Signatures on the Following Page] Page 4 of 6 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: Autths- 4/0 Eq. Print Name: _ C a /^d 4t 01_ to Co 4 ( STATE OF FLORIDA COUNTY OF MIAM[-DADE } SS: PROJECT SPONSOR: Brisas del Este Apartments, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager By: 19,1(,/ Print Name: Tony Del Pozzo Title: Vice President Date: IC04214 ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means of physical presence or ❑ online notarization this _ E. t• day of _ pi4A/ , 2021 by Tony Del Pozzo, as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company, who is personally known to me or has produced as identification. ::�iiiYPu'••. DESIREE FAULKNER ?° r:! Notary Public - State of Florida .a'•'o�o° Commission # GG 320239 yF n\•° `• My Comm. Expires Apr 13, 2023 Bonded through National Notary Assn. Print,evar� 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: Todd B. Hanno City Clerk Date: `1 ($ /4.03.. APPROVED AS TO FORM AND CORRECTNESS: Victendez City Attorney CITY: City of Miami, a municipal corporation of the State of Florida By: hur $, riega V City Manager Page 6 of 6 EXHIBIT "E" AFFIRMATIVE MARKETING PROCEDURES AND RESPONSIBILITIES Note to all applicants/respondents: This Corm 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 hit Jl. ortal.hud. ,ovlhudi orlaUdocumentsThuddoc?id=noancereaderinstaii, df 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 Dsveiopmsnt Office of Fair Housing and Equal Opportunity 1e. Project Name & Address (including City, County, Seale &Zip Cods) Krises del Este Apartments 3000 NW 18 Avenue Miami, Miami Dade County, Florida 33142 OMB Approval No. 2629-0013 (exp.1131/2021) lb. Project Contract Number 1a No. of Units TBD 161 Id. Cone Tract 1 le. I-lousing/Expanded Housing Market Ares Housing Market Arse: City of Miami Expanded Housing Market Area: Miami -Dade County IL Meneging Agent Name, Address (including City, County, Stab & bp Cede), Teleph0ne Number & Email Auddr.aa ITRG Management Company, LLP; 2200 North Commerce Parkway, Suite 100. Whalen, FL 33326 e: 305-442-8828; Fax: 305.442-8896 fflg. App(includingon/Ownsr/Dsysloper Name. Address (including City, County, State &Zip Code) Telephone Number & Email Address !Brian del Este Apartments, LLC/Aberto Milo, JrJ315 S. Biscayne Blvd., Miami. Miami -Dade County. Florida 33131 !Phone: 305-460-9900/ amiloOrrslatedgroup.com 1 h. Entity Responsible liar Nerkefing (check all that apply) Ei Owner m Agent Other (specify) Position, Name (if brown), Address ( including City, County, Stele & Zp Coda), Telephone Number & Email Address MIAlyn Pascual, Co -President. 2200 N Commerce Pkwy, Sulte 100, Weston, FL 33320 Phone: 964-243-0602/ mpaawalerelatedyroup.com 11. To whom should approval and other correspondence concerning this AFHMP be sent? kdea1 Name, Address (including City, Slats &Zit Code), Telephone Number & E-Mall Address. Gtde Fem endez, VP, 2200 N Commerce Parkway, Ste 100, Weston FL 33320 Phone: 306-442-8628 Ext.116/ glda fwrtandezzrelatedgroup.00m 2a. Affkmative Fair Housing Marketing Wan Plan Type Initial Plan Date of she Fist Approved AFHMP: ( j Reason(s) for current update: INaw Gortstnrclion 2b. HUD -Approved Ooeupahay of the Prejsat (check el that apply) ❑ Elderly p Firefly Mixed (Elderly/Disabled) Disabled 2c. Date of initial Occupancy 12/01/2022 Previous editions are obsolete 2d. Advertising Start Date Advertising must begin of least 90 days prior to initial or renewed occupancy for new construction and substantial rehablikatbn projects. Date advertising began or will begin 109/02/2022 For exiling pro)acta, select below the reason advertising will be used: To IS1 extstktg unit vacancies ID To place applicants on a walking list (which cumenlly has To reopen a dosed waling list 0 (which currently has 0 Individuals) Indmduais) Page 1of8 F°`vage°7') 3s. Demographics of Project and Housing Market Ares Complete and submit Worksheet 1 3b. Targeted Marketing Activity Based on your completed Worksheet 1, indicate which demographic group(s) In the housing market area is/arc least likely to apply for the housing without special outreach efforts. (dnec k eh that apply) 0 White 0 Mencen Intim or Alaska Naive fa Asian IZI Black or Alfcan American Native Hawaiian or Other Pacific Islander p Hispanic a Latino ❑ Persons with Disabilities QFaledles YAM Ciiktnen Dater ethnic group, religion. eta (specify)1 4a Residency Preference Is the owner requesting a residency preference? If yes, complete questions 1 through 5. (Yes 1f no, proceed to Block 4b. (1) Type [New (2) Is the residency preference area: The same as the AFHMP hous)nglexpended housing market area as identified in Block le? [Yes The same as the residency preference area of the local PHA in whose Jurisdiction the project is located? Nes (3) What is the geographic area for the residency preference? Miami -Dade County (4) What is the reason for having a residency preference? The operating boundary for Miami -Dade Public Housing Agency (5) How do you plan to periodically evaluate your residency preferenoe b ensure that it Is in accordance with the non-aaasnatason and equal opportunity requirements in 24 CFR 5.105(a)? TRG Management Company employees are trained to handle al Fair Housing end Discrimination situations. Executive Management, Regional Ma -lagers and Compliance department staff monitor all employees on a regular basis to ensure non-discrimination and Equal Opportunity requirements are met. Complete and submit Worksheet 2 when requesting a residency (reference (see also 24 CFR 6.655(cX1)) 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 debate your use at community contacts to market the project to those least likely to apply. Previous editions are obsolete Page 2 of 8 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, websiles, and brochures, etc Plf (12/2011) fag 6s. 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. a Rental Office ❑ Real Estate Office ❑ Mode Ur* 0 Other (spay) 5b.Afflrmative Fair Housing Marketing Plan The AFHMP must be available for public inspection at the pies or rental office (24 CFR 200.625). Check below all locations where the AFHMP will be rnade available. m Rental Oftbe Real Estate Office EIMOdel (bait EI Other (specify) f 5c. Project Sits Sign Project Site Signs, if any, must display in a conspicuous position 111e HUD approved Equal Housing Opportunity logo, slogan, or statement (24 CFR 200.620(f)). Check below all bcations where the Project Site Sign we be displayed. Please submit photos of Project signs. m Rental Office Real Estate Office Model Unit Entrarroe b Project D Other (specify) The size of the Project Site Sign will be [3' x The Equal Housing Opportunity logo or sbgan or statement wii be 14• I x I' -1 s 8. Evaluuatlon of Marketing Activities Explain the evaluation process you win use to determine whether your marketing activities have been successful rn attracting individuals least likely to apply, how often you will make this determination, and how you will make decisions about future marketng based on the evaluation process. TRG Management Company will review our waiting 1st 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 waling 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 Amencan residents For American Indian or Alaska Native residents, a monthly letter wit 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 Atiairs in order to market to that community There will be opportunities for residents of the targeted population in Brisas del Este Apartments_ The non -subsidized units will be evadable to the general public and marketing/outreacb wit be provided as Indicated below. Previous edbons are obsolete Page 3 of 8 Form HUD-9352A (122011) Page 305 78. Marketing Staff What staff positions are/will be responsible for affirmative marketing-7 (Property Manager, Regional Manager and Compliance Manager 7b. Staff Training and Assessment AFHMP (1) Has staff been trained on the AFHMP? Nes 1 (2) Has staff been Instructed in writing and orally on non-discrimination end fair housing policies as required by 24 CFR 200.620(c)? Yes (3)1f yes, who provides instruction on the AFHMP and Fair Housing Act, and how frequently? lAt bast 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? Yes (5) H yes, how and how often? Review the AFHMP annually to ensure it is up to date and that all staff are aware of their responsibilities regarding markndng of the property. 7c. Tenant Selection TrainIngIStall (1) Has staff been trained on tenant selection in accordance with the project's occupancy policy, including any residency preferences? Yes 1 (2) What staff positions are/will be responsible for tenant selection? Property Manager and Regional Manager 7d. Sbff InstructloWTraining: Describe AFHM/Fair Housing Act staff training, already pmvided 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 AFHMIFair Housing staff training materials. rEmployees are trained by private companies at least once a year, outsourced by TRG Management Company and on4ine training seminars. Previous eons are obsolete Page 4 of II Form HUD-9352A (1212011) Page 306 8. Additional Conslde►atloosIs there anything else you would Ilke 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. 0. Revrlew 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). l 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. Convection 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 submifdng this PTan &bete of Submission ,mm7dd yyyy Name (type or print) ony del Po¢=o 07 / I-t Zo20 tle & Name of Company Vice President - Brisas del Este Aparbnents, LLC For HUD -Office of Housing Use Only Reviewing Official For HUD -Office of Fair Housing and Equal Opportunity Use Only LiApproval t__i Disapproval Signature & Date (mrn/dd/yyyy) Signature & Date (mnvdd/yyyy) Name YPe o pnnt) Title Previous editions are obsolete Page 5 of 8 imps.. t pnra) Tills Form HUD-935.2A (12/2011) Page 307 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 end reviewing the collection of information. This agency may not collect this information, and you are not required to complete Oils forrn, unless it displays a currently valid Office of Management and Budget (OMB) control number. Purpose of Fonn: 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) forrn 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 rehabettation, and existing project marketing and advertising activities. An AFHM program. as specified in this Plan, shill be in effect for each multifamily project throughout the lite of the mortgage (24 CFR 200.620(a)). The AFHMP, ono, 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 FtiA subsidized and unsubsidized multifamily housing program applicants. INSTRUCTIONS: Send completed tom and wortcaheets to your local HID Office, Attention: Director, Office of Housing Part 1: Applicant/Respondent and Project identification. Blocks la. lb, lc, 1 g, 1 h, and 11 are self- explanatory. Block 1d• Respondents may obtain the Carus tact number from the U.S. Census Bureau (htt ://factfinder2.census _lov/main.htnd) ration completing Worksheet One. Block le- Respondents should identify both the housing market area and the expanded housing market area for their multifamily housing projects. Use abbreviations It 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 stacks, or disability. Block tf- The applicant should complete this block only if a Managing Agent (the agent cannot be the applicant) is implementing the AFHMP. Previous editions are obsolete 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 aft 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 end 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 fiq existing vacancies, to place Individuals on the project's waiting list, or to re -open e closed waiting list. Please indicate how many people are on the waiting list when advertising begins. Page 6 of 8 Form HUD 935.2A (12/2011) Page 308 Worksheet 1: Determining Demographic Groups Least Likely to Apply for Housing Opportunities (tie* AFHMP, Block 3b) In the respective columns below, indicate the percentage of demographic groups among the project's residents, current project applicant data. census tract, housing market area, and expanded housing market area (Sae 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 tor 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, rational orign, religion, sex, familial status, Of 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 stowing both the housing market area and the expanded housing market area. hrojec Demographic emogra oe Ch s Applicant D Census Tract Housing Market Area Expanded Ares % While 0 0 89.0 85.8 73.8 1 % Bieck or African American 0 0 20.2 21.4 18.9 % Hispanic or Latino 0 0 8g'6 85.7 65.0 %Asian 0 0 0 0.4 1.5 % Amencen Indian or Alaskan Native 0 II0 0.8 0.4 0.2 % Native Hawaiian or Pacific Islander -- 0 0 0 0 0 °%Perseus vAh Disab8 as 0 0 18.7 12.5 10,4 % Farriles cot Children under the aged 18 0 0 24.5 25.2 28.80 Other (specify) 0 o n 0 0 Page 311 Worksheet 2: Establishing a Residency Preference Area (See AFHMP, Block 4a) Complete this Worksheet If you wish to continue, revise, of add a residency preference, which is a preference for admission of wan who reside or work in a specified geographic area (see 24 CFR 5,655(c)(1)(0), If a residency preference is utilized, the prefersnus must be in accordance wrth the non-discrimination end equal opportunity requirements contained on 24 CFR 5.105(a). This Worksheet will help show how the percentage of the populalion in the residency preference area compares to the demographics of the project % residents, applicant data, census tract, housing market mvm, and expanded housing market area. Please attach a map elearty delineating the residency preference geographical area. Demographic Pro►ect's Praisers Characteristics Residents Applicant Data (as determined as determined n Worksheet 1) on Worksheet 1) % White a1N-'1 �Hsusing MYk t Expanded (as datenritsd I`• Area (as Housing Market In Worksheet 1 determined Area 1) in Worksheet 1) (es determined in Worksheet 1) Residency PwMenee Arse app) % Bledc or Africa American % Hispanic or Latino % Asian % American Indian or Alaskan Native % Native Hawaiian or Pacific islander % Persona alth Disab ties % Panties with Children under the age of 18 Other (specify) iL Page 312 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 waslwkl be initialed, and the Specific role they will play in assisting with the affirmative fair housing marketing. Please attach additional pages if necessary Targeted Population(s) Community Contact(s), Including required information noted above. American Indian or Alaska Native Seminole Tribe of Florida Attn• Mitchell 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, Wastrngotn, DC 20036; Phone: 202-296-2300 ext. 141 Founded in 1991. Monthly letter will be sent Native Hawaiian or Pacific Islander Black or African American 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 IWtar will be sent. Afican 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. Page 313 Worksheet 4: Proposed Marketing Activities - Methods of Advertising (See AFHMP, Block 4c) Complete the falowing table by identifying your targeted marketing popuiation(s), as indicated in Block 3b, as wel 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 wit 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. &elle, large print, etc.), and specify the logo(s) (es 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(e)-4 Targeted Population: Targeted Population: Methods of Advertising 1 Nswspapst(s) Targeted Population: Miami HeratdfAIami Times Tenants that quality under the program requirements Radio Station(s) TV Stetion(s) IlEleetroniC Media TRG Management Websi*e Tenants that quality under the program requirements Bulletin Beards Brochures, Notices, Flyers Other s • cif Resident Referral Tenants that qualify under the program requirements —J Page 314 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: 3000 Northwest 18 Avenue, Miami, Florida 33142 Note to Recorder: This mortgage is given to secure the financing of housing under Part V of Chapter 420 of the Florida Statutes and is exempt from taxation pursuant to Section 420.513 Florida Statutes. LEASEHOLD MORTGAGE AND SECURITY AGREEMENT FOR BRISAS DEL ESTE APARTMENTS, LLC THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the "Mortgage"), is executed and delivered the O' day of Thri arta2t , 2021 by BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company, whose address is 2850 Tigertail Ave, Suite 800, Miami, FL 33133 (hereinafter referred to as the "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 (hereinafter called "Mortgagee"). RECITALS WHEREAS, on April 16, 2021, the Mortgagee approved an allocation of One Million and 00/100 Dollars ($1,000,000.00) in HOME Investment Partnerships Program ("HOME") funds for construction of affordable residential apartment units in the Allapattah neighborhood of Miami, Florida ("Project"); and WHEREAS, Mortgagor has delivered to Mortgagee that certain HOME Promissory Note for Brisas del Este Apartments, 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 indebtedness evidenced by said Promissory Note) (the "Note"), which Note evidences the Indebtedness in the amount of One Million and 00/100 Dollars ($1,000,000.00) 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 One Million and 00/100 Dollars ($1,000,000.00) (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 Page 1 of 12 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 3000 Northwest 18 Avenue, Miami, Florida 33142, 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, forever. The Mortgagor does covenant with the Mortgagee that Mortgagor is indefeasibly seized of the Mortgaged Property in leasehold estate; that the Mortgagor has full power and lawful right to convey the Mortgaged Property in leasehold estate 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 fee simple title to the Mortgaged Property in the Mortgagee as may reasonably be required; and that the Mortgagor does hereby fully warrant the leasehold title to the Mortgaged Property, and will defend the same against the lawful claims of all persons whomsoever. 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 same date herein the other loan documents 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, Page 2 of 12 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. 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. Page 3 of 12 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 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 Page 4 of 12 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, 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 period as may be provided in the Agreement; 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 (f) 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 Page 5 of 12 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. 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 may be set forth in Section 6.5 of the Loan Agreement, or 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 Page 6 of 12 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 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 Page 7 of 12 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 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, Page 8 of 12 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 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 Page 9 of 12 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 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 otherperson(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 Page 10 of 12 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 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 11 of 12 IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand and seal the day and year first above written. WITNESSES: Print Name:_ CGro6" STATE OF FLORIDA } COUNTY OF MIAMI-DADE } SS: MORTGAGOR: BRISAS DEL ESTE APARTMENTS, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager o. 1.9til., Print Name: Tony Del Pozzo Title: Vice President Date: ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means of physical presence or ❑ online notarization this ? Co day of cl-ob*p _ , 2021 by Tony Del Pozzo, as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company, who is personally known to me or has produced as identification. ,roti*RY i'4 DESIREE FAULKNER ? Notary Public • State of Florida :,12\, j Commission k GG 320239 1 ;or °: My Comm. Expires Apr 13, 2023 Bonded through National Notary Assn. Pri Notary Public, State of Florida at large EXHIBIT A Legal Description of The Property A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: BEGIN at the NE Corner of said Tract "A"; thence S02°30'10"E along the East Bounden,' Line of said Tract "A", said line also being the West Right of Way Line of NW 18th Avenue, for 297.013 feet; thence S87°42'42"W for 17.28 feet to a Point of Curvature of a circular curve to the left, concave to the Southeast; thence Southwesterly along the arc of saki curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Point of Tangency; thence S37°25101"W for 21.88 feet; thence N02687'25"W for 87.95 feet; thence S87655'01"W along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence N0219'42'W for 241.00 feet; thence N87"55'01 "E= along the North Boundary Line of said Tract "A", for 17SA2 feet to the Point of Beginning. EXHIBIT B Permitted Encumbrances on the Mortgaged Property All permitted encumbrances on the Property are described in that certain Title Insurance Commitment (Order Number )No. issued by Fidelity National Title Insurance Company, effective as of , as endorsed. at 8:00 a.m. HUD PROVISIONS RIDER Modifying City of Miami Loan Documents (Brisas del Este Apartments) This Rider is attached to and made a part of the Leasehold Mortgage and Security Agreement (the "Mortgage") given by Brisas del Este Apartments, LLC ("Mortgagor"), in favor of City of Miami, a municipal corporation of the State of Florida (the "City" or the "Lender") and hereby modifies that document in addition to the Loan Documents as defined in the City's Loan Agreement (collectively, the City Mortgage and Loan Documents are referred to herein as "City Loan Documents") by and between Mortgagor and the City. 1. Inconsistent Provisions. If the provisions of this Rider are inconsistent with the provisions of the City Loan Documents, the provisions of this Rider shall be controlling. 2. Defined Terms. Capitalized terms not defined herein are as defined in the City Loan Documents. 3. Regulatory and Operating Agreement — Public Housing Units. The parties hereto acknowledge that thirty (30) of the dwelling units to be developed on the land shall be subject to that certain Regulatory and Operating Agreement between Miami -Dade County ("Authority") and Mortgagor of approximately even date herewith (the "Regulatory and Operating Agreement") and shall be operated as public housing units in accordance therewith ("Public Housing Units"). Mortgagor shall be required to comply with the Public Housing Requirements (as defined in the Regulatory and Operating Agreement) as they relate to the Public Housing Units, including any restrictions that may be more restrictive than those herein. 4. HUD Regulatory Documents. The Lender acknowledges that the HUD Declaration of Trust and Restrictive Covenants and Regulatory and Operating Agreement (collectively, the "HUD Regulatory Documents") will be recorded prior to any of the recordable City Loan Documents and the Mortgagor will be required to comply with the terms and conditions of the HUD Regulatory Documents, including any restrictions that may be more restrictive than those herein. 5. Subordination to HUD Regulatory Documents. The lien on the land pursuant to the City Mortgage is subordinate and subject to the HUD Regulatory Documents. 6. Permitted Encumbrances. Lender hereby acknowledges that it has no objection to the permitted encumbrances as set forth in Schedule B of the title insurance policy delivered to the Lender at the time of recording of the City Mortgage. 7. Restoration Upon Casualty or Condemnation. Notwithstanding anything contained in the City Loan Documents to the contrary, restoration shall be determined in a manner consistent with Section 9 of the Mixed Finance Amendment to Consolidated Annual Contributions Contract, dated of approximately even date herewith, as amended by the First Rider to the Mixed Finance Amendment to Consolidated Annual Contributions Contract. {D1135806.DOC / 2 #9974937 vl 30364-1093 DC233-168} or operating subsidy shall only be utilized in accordance with the Regulatory and Operating Agreement and any Project reserves which contain public housing rent or operating subsidy shall be utilized in accordance with the Regulatory and Operating Agreement. 9. HUD Preemption Clause. The parties hereto acknowledge and agree that, notwithstanding any other requirement to the contrary, HUD's Conflict Clause will prevail, control, and govern in instances of conflict between the Federal Public Housing Requirements and any other requirement to the contrary in any of the legal documents entered into by the parties as part of this transaction, including the City Loan Documents 10. HUD Conflicts Clause. To the extent that any of the City Loan Documents is in conflict with the requirements of the United States Housing Act of 1937, as amended, Federal regulations, and the Annual Contributions Contract, as amended, (the "Federal Public Housing Requirements"), such Federal Public Housing Requirements shall control and govern in such instances of conflict. 11. Recording. This Rider shall be recorded as an attachment to the City Mortgage. 12. Notices. Any notices of Mortgagor default provided pursuant to the Loan Documents shall also be provided to the Authority and as follows: If to the Authority, to: And a copy to: And a copy to: {D1135806.DOC / 2 #9974937 vl 30364-1093 DC233-168} Miami -Dade County c/o Miami -Dade Public Housing and Community Development 701 N.W. 1st Court, 16th Floor Miami, FL 33136 Attn: Michael Liu, Director Miami -Dade County Attorney's Office 111 N.W. 1st Street, Suite 2810 Miami, FL 33128 Attn: Terrence A. Smith, Assistant County Attorney Reno & Cavanaugh, PLLC 455 Massachusetts Avenue, NW, Suite 400 Washington, DC 20001 Attn: Efrem Levy, Esq. LENDER'S INITIALS 471/ MORTGAGOR'S INITIALS:'7 UW" 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: 3000 Northwest 18 Avenue, Miami, Florida 33142 DECLARATION OF RESTRICTIVE COVENANTS FOR BRISAS DEL ESTE APARTMENTS This Declaration of Restrictive Covenants for Brisas Del Este Apartments (the "Covenant") made this day of ) i , e , 2021 ("Effective Date") by BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company (hereinafter referred to as "Project Sponsor"), is in favor of the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as the "City"). RECITALS WHEREAS, the Project Sponsor is the owner of a leasehold estate in the property legally described in Exhibit "A," attached hereto and incorporated herein; 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 ("City"), a Florida municipal corporation. It shall remain in full force and effect until released by the City; and WHEREAS, the City has loaned $1,000,000.00 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, among other things, increase the supply of rental housing units for Very Low and Low Income Households in the community known as Allapattah (hereinafter referred to as the "Project"), which consists of the new construction of a 8-floor mid -rise residential building located at 3000 Northwest 18 Avenue, Miami, Florida 33142, as legally described in Exhibit "A" (hereinafter referred to as the "Property"). The Project consists of a total of one hundred sixty one (161) residential apartment units. A total of thirty (30) residential apartment units are HOME -assisted units (the "HOME - Assisted Units") developed on the Property, and are all subject to the terms, covenants, and restrictions contained herein; and WHEREAS, the City's allocation of funds for the Project is subject to that certain HOME Investment Partnerships Program Loan Agreement for Brisas Del Este Apartments (the "HOME Loan Agreement" or "Loan Agreement") and 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 Page 1 of 7 obligating the Project Sponsor, its successors, transferees, and assigns to maintain and operate the Property in accordance with 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, 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 thirty (30) HOME Assisted Units in the Project that shall remain Affordable for eligible tenants. Six (6) of the thirty (30) HOME Assisted Units shall remain Affordable to Very Low Income Households, and twenty-four (24) of the thirty (30) units shall remain Affordable to 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 thirty (30) HOME Assisted Units shall consist of fifteen (15) one bedroom/one bathroom apartment units, and fifteen (15) two 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. "Low Income" shall mean a household whose annual income does not exceed eighty percent (80%) of the median income for the area, as determined by the U.S. Depaitment of Housing and Urban Development, with adjustments and certain exceptions as provided in 24 CFR Part 92. 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. The Affordability Period of this Project is thirty (30) years commencing on Close -Out of the Project. 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 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 Page 2 of 7 Loan Documents), or (ii) that the Project Sponsor ceases to exist as an organization, 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. 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 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 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 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, Page 3 of 7 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 Fees. In the event 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. WITNESSES: PROJECT SPONSOR: BRISAS DEL ESTE APARTMENTS, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager rint Name: 4 - By: Print Name: aro-C(' h�I tc? 2"7, STATE OF FLORIDA COUNTY OF MIAMI-DADE Print Name: Tony Del Pozzo Title: Vice President Date: D\ 20ZA ACKNOWLEDGMENT } } SS: The foregoing instrument was acknowledged before me by means of physical presence or 0 online notarization this 'y(, day of - tic 4ro6x/ ., 2021 by Tony Del Pozzo, as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company, who is personally known to has produced as identification. .o�iR' PoB •.. DESIREE FAULKNER _ • ' �1�\ Notary Public - State of Florida `ac Jac Commission 11 GG 320239 ."••ape tti9.-•` My Comm. Expires Apr 13, 2023 P '' Bonded through National Notary Assn. Page 5 of 7 UP�U'to . Prin Notary Public, State of Florida at large ATTEST: Todd Harm Date: APPROVED A CO i /4—Ann-Marie Director of ement CITY OF MIAM Florida By: Arthur Noriega V, ity Manager municipal corporation of the State of APPROVED AS TO FORM AND REQUIREMENTS Vic 3t Mendez City Attorney Page 6 of 7 Exhibit A Legal Description Of The Property A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded In Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: BEGIN at the NE Corner of said Tract "A"; thence SD2°30'10"E along the East B©und-:ry Line of said Tract "A", said line also being the West Right of Way Line of NW 18th Avenue, for 297.08 feet; thence S87°42'42'W for 17.28 feet to a Point of Curvature of a circular curve to the left, concave to the Southeast; thence Southwesterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Point of Tangency; thence S37°25101' W for 21.88 feet; thence NO2°37'25"W for 87.95 feet; thence S87655'01"W along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence NO2°30'42" W for 241.00 feet; thence N87 °55'01 "E along the North Boundary Line of said Tract t'A", for 1 78A2 feet to the Point of Beginning. Page 7 of 7 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: 3000 Northwest 18 Avenue, Miami, Florida 33142 RENT REGULATORY AGREEMENT FOR BRISAS DEL ESTE APARTMENTS THIS RENT REGULATORY AGREEMENT ("Regulatory Agreement") is entered into this , day of ,n10 u,{re,c , 2021, between BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company (hereinafter referred to as "Borrower") and the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as the "City"). The execution of this Regulatory Agreement by the Borrower is in connection with the loan of HOME Investment Partnerships Program ("HOME") funds, (the "Loan"), secured by certain loan documents to be executed in connection therewith (the "Loan Documents"), for the construction of a total of one hundred sixty one (161) residential apartment units. Thirty (30) of the residential apartment units will be HOME -assisted units (the "HOME -Assisted Units") of that certain project known as Brisas Del Este Apartments (hereinafter referred to as the "Project"). The Project will be a eight -story mid -rise building located at 3000 Northwest 18 Avenue, Miami, Florida 33142 (hereinafter referred to as the "Property"). In accordance with the requirements set forth in (i) that certain HOME Loan Agreement to be 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, thirty (30) Project units are considered "HOME -Assisted" and all of the HOME -Assisted Units are subject to the restrictions provided herein. The thirty (30) HOME -Assisted Units shall be "floating" units, meaning that they are not specifically designated units, but that any thirty (30) of the total one hundred sixty-one (161) Project units shall be, at any one time, in compliance with the HOME - Assisted requirements set forth herein. Borrower hereby agrees to the following terms, conditions and covenants until the end 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: Six (6) of the HOME Assisted Units shall be occupied by Very Low - Income Households. 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. The remaining twenty-three (24) HOME - Assisted Units shall be occupied by Low -Income Households. As defined in the Regulation, Low -Income Households have annual incomes that do not exceed eighty percent (80%) of the median income for the area, as determined by 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 Page 1 of 9 occupied by tenants identified as Very -Low Income are subject to the maximum LOW HOME Rent published annually by HUD for each locality. Gross monthly rent charged on HOME -Assisted Units occupied by tenants identified as Low - Income are subject to the maximum HIGH HOME Rent published annually by HUD. The HIGH and LOW HOME Rent maximums for leases signed in Miami, Florida effective as of June 1, 2021 are as follows: No. of HOME- No. of Bedrooms No. of Bathrooms High HOME Rent Maximum Low HOME Rent Maximum Assisted Units 6 (50% AMI) 1 1 -- $857 9 (80% AMI) 1 1 $1,094 -- 6 (50% AMI) 2 2 -- $1,028 9 (80% AMI) 2 2 $1, 316 -- 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: Page 2 of 9 g• 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. 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. 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. Page 3 of 9 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, 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: Brisas Del Estate Apartments, 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 Page 4 of 9 14 Northeast 1st Avenue, Second Floor Miami, Florida 33132 Attn: George Mensah, Director With Copy To: Victoria Mendez Office of the City Attorney, City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 (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 Page 5 of 9 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 Documents. (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. (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 Owner. (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::: Print Name: ca,o f; h{ rc,77,' STATE OF FLORIDA } COUNTY OF MIAMI-DADE } SS:: PROJECT SPONSOR: BRISAS DEL ESTE APARTMENTS, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager By: 9.f(4_,-. Print Name: Tony Del Pozzo Title: Vice President Date: 1�� i20n,1 ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means of ® physical presence or ❑ online notarization this Z (o day of 0 (a obRl , 2021 by Tony Del Pozzo, as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company, who is personally known to me or has produced _as identification. aq�iva� •.. DESIREE FAULKNERw '?9%1' Notary Public - State of Florida ,�, Commission tt GG 320239 • '.� or \°' My Comm. Expires Apr 13, 2023 .. Bonded through National Notary Assn. Notary Public, State of Florida at large Page 7 of 9 THIS REGULATORY AGREEMENT has been executed and delivered as of the day and year first above written. ATTEST: Todd B. Hann City Clerk Date: 11 ,D-Cg- 1 APPROVED AS TO FORM AND CORRECTNESS: Vicendez City Attorney CITY: CITY OF MIAMI, a municipal corporation of the State of Flo • a By: Arthur Noriega V City Manager Page 8 of 9 Exhibit A Legal Description Of The Property A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: BEGIN at the NE Corner of said Tract "A"; thence SO2°30'10"E along the East Boundary Line of said Tract "A", said line also being the West Right of Way Line of NW 18th Avenue, for 297.08 feet; thence S87°42'42"W for 17.28 feet to a Point of Curvature of a circular curve to the lett, concave to the Southeast; thence Southwesterly along the arc of saki curve, having for its elements a radius of41.00 feet, a central angle of 50°17'42", for an arc distance of 35.90 feet to a Point of Tangency; thence S37°25'01"W for 21,88 feet; thence NO2°37'25"W for 87.95 feet; thence S87°55'01"W along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence NO2°30°42' Vlf for 241,00 feet; thence N87°55'01"E along the North Boundary. Line of said Tract "A", for 178A2 feel to the Point of Beginning. Page 9 of 9 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 Jeffrey Watson District 5 Arthur Noriega, V City Manager Project Construction Cost: $ X,XXX,XXX City Contribution $ X,XXX,XXX www.miamigov.com 305.416.2080 &o ng _ y Com lop�� Devet 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: 230 pt Font size: 314 pt Font size: 168 pt Font size: 192 pt Font size: 175 pt Font size: 165 pt Font size: 270 pt EXHIBIT "J" ADDITIONAL INSURANCE REQUIREMENTS EXHIBIT J INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE- Brisas del Este Apartments 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 included as an Additional Insured Employees included as insured Independent Contractors Coverage Contractual Liability Waiver of Subrogation Premises/Operations Explosion, Collapse and Underground Hazard Incidental Medical Malpractice Loading and Unloading Mobile Equipment (Contractors Equipment) whether owned, leased, Borrowed, or rented by the contractor or employees of the contractor 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 included as an Additional Insured Insurance Exhibit 1 III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V. Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit $ 1,000,000 Each Occurrence $ 1,000,000 Aggregate $ 2,000,000 VI. Owners Contractors Protective A. Limits of Liability Each Occurrence $ 1,000,000 Aggregate $ 1,000,000 VII. Performance Bond Obligee Rider — City of Miami VIII. Builders' Risk (Project Sponsor or General Contractor) A. Limits of Liability- to be determined by according the terms of the Construction contract. B. Endorsements Required • "All Risk Form • Non -Reporting Form -Completed Value • Specific Coverage (Project Location and Description) • Loss or Damage to building material, and property of every kind and description, including insured's property to be used in, or incidental to construction Insurance Exhibit 2 • Business Interruption • Boiler and Machinery • Transit • Foundation Coverage • Scaffolding and Forms Coverage • Plans, Blueprints, and Specifications coverage • Collapse • Flood, including inundation, rain, seepage, and water damage • Earthquake • Subsidence • Windstorm including hurricane • Freezing and Temperature Extremes or changes coverage • Ordinance or buildings laws • Theft or Burglary • Coverage for loss arising out of Faulty Work or Faulty Materials • Coverage for loss arising out of Design Error or Omission • Testing • Debris Removal • Soft (Additional Financing) Costs Coverage • Replacement Cost Valuation • Coinsurance Requirements Waived • Maintenance of Insurance Coverage through warranty period 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. 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. Insurance Exhibit 3 1 SCHEDULE A PERMITTED SENIOR FINANCING (i) Bond Loan from the Housing Finance Authority of Miami -Dade County, Florida (the "Senior Lender"), in the amount of $27,250,000, as assigned to The Bank of New York Mellon Trust Company, N.A., as Fiscal Agent, which shall be reduced to not greater than $13,300,000 at the conversion to permanent financing, and (ii) Community Development Block Grant Disaster Relief loan, in the original principal amount of $5,000,000, from Florida Housing Finance Corporation, evidenced by a Promissory Note and secured by a Mortgage both from Maker in favor of the Florida Housing Finance Corporation, and (iii) Miami -Dade County ("County") Surtax/HOME funds in the original principal amount of $4,000,000, evidenced by a Promissory Note and secured by a Mortgage both from Maker in favor of the County 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: 3000 Northwest 18 Avenue, Miami, Florida 33142 7')ZclS61g4.San'tom1 111111111111111111111111111111111111111111111 GFN 21021 R0883164 OR BK 32867 Pss 467-475 (9Pss) RECORDED 11/23/2021 14:17:37 HARVEY RUVIN, CLERK OF COURT MIAMI-DADE COUNTY, FLORIDA RENT REGULATORY AGREEMENT FOR BRISAS DEL ESTE APARTMENTS THIS RENT REGULATORY AGREEMENT ("Regulatory Agreement") is entered into this J 'day of uj , 2021, between BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company (hereinafter referred to as "Borrower") and the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as the "City"). The execution of this Regulatory Agreement by the Borrower is in connection with the loan of HOME Investment Partnerships Program ("HOME") funds, (the "Loan"), secured by certain loan documents to be executed in connection therewith (the "Loan Documents"), for the construction of a total of one hundred sixty one (161) residential apartment units. Thirty (30) of the residential apartment units will be HOME -assisted units (the "HOME -Assisted Units") of that certain project known as Brisas Del Este Apartments (hereinafter referred to as the "Project"). The Project will be a eight -story mid -rise building located at 3000 Northwest 18 Avenue, Miami, Florida 33142 (hereinafter referred to as the "Property"). In accordance with the requirements set forth in (i) that certain HOME Loan Agreement to be 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, thirty (30) Project units are considered "HOME -Assisted" and all of the HOME -Assisted Units are subject to the restrictions provided herein. The thirty (30) HOME -Assisted Units shall be "floating" units, meaning that they are not specifically designated units, but that any thirty (30) of the total one hundred sixty-one (161) Project units shall be, at any one time, in compliance with the HOME - Assisted requirements set forth herein. Borrower hereby agrees to the following terms, conditions and covenants until the end 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: Six (6) of the HOME Assisted Units shall be occupied by Very Low - Income Households. 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. The remaining twenty-three (24) HOME - Assisted Units shall be occupied by Low -Income Households. As defined in the Regulation, Low -Income Households have annual incomes that do not exceed eighty percent (80%) of the median income for the area, as determined by 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 Page 1 of 9 Book32867/Page467 CFN#20210883164 Page 1 of 9 occupied by tenants identified as Very -Low Income are subject to the maximum LOW HOME Rent published annually by HUD for each locality. Gross monthly rent charged on HOME -Assisted Units occupied by tenants identified as Low - Income are subject to the maximum HIGH HOME Rent published annually by HUD. The HIGH and LOW HOME Rent maximums for leases signed in Miami, Florida effective as of June 1, 2021 are as follows: No. of HOME- No. of Bedrooms No. of Bathrooms High HOME Rent Maximum Low HOME Rent Maximum Assisted Units 6 (50% AMI) 1 1 -- $857 9 (80% AMI) 1 1 $1,094 -- 6 (50% AMI) 2 2 -- $1,028 9 (80% AMI) 2 2 $1, 316 -- 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: Page 2 of 9 Book32867/Page468 CFN#20210883164 Page 2 of 9 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. 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. 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. g. Page 3 of 9 Book32867/Page469 CFN#20210883164 Page 3 of 9 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, 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: Brisas Del Estate Apartments, 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 Page 4 of 9 Book32867/Page470 CFN#20210883164 Page 4 of 9 14 Northeast 1 S` Avenue, Second Floor Miami, Florida 33132 Attn: George Mensah, Director With Copy To: Victoria Mendez Office of the City Attorney, City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 (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 ofMiami, 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 Page 5 of 9 Book32867/Page471 CFN#20210883164 Page 5 of 9 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 Documents. (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. (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 Owner. (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 Book32867/Page472 CFN#20210883164 Page 6 of 9 THIS REGULATORY AGREEMENT has been executed and delivered as of the day and year first above written. WITNESSES: Print Name: 0.)41E A2E2 Print Name: Jilin <.'sre cP?, STATE OF FLORIDA } COUNTY OF MIAMI-DADE } SS: PROJECT SPONSOR: BRISAS DEL ESTE APARTMENTS, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager By: Print Name: Tony Del Pozzo Title: Vice President Date:iaM ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means oft"d'physical presence or O online notarization this 76, day of 0(1-p�it/ , 2021 by Tony Del Pozzo, as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company, who is personally known to me or has produced as identification. AL,k, DESIREE FAULKNER )Notary Public State of Florida �P Commission # GG 320239 orn. My Comm. Expires Apr 13, 2023 Bonded through National Notary Assn. Notaty'Public,State of Florida at large Page 7 of 9 Book32867/Page473 CFN#20210883164 Page 7 of 9 THIS REGULATORY AGREEMENT has been executed and delivered as of the day and year first above written. CITY: CITY OF MIAMI, a municipal corporation of the State of Flo By: Todd:B Hawq'" ,C4Terle':j;;" Date:", AV a.i APPROVED AS TO FORM AND CORRECTNESS: City Attorney Arthur No ega V City Manager Page 8 of 9 Book32867/Page474 CFN#20210883164 Page 8 of 9 OR BK 328457 PG 475 LAST PAGE Exhibit A Legal Description Of The Property A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particu arty described as follows: BEGIN at the NE Corner of said Tract "A": thence S02°30'10"E along the East Boundary Line of said Tract "A", said line also being the West Right of Way Line of NW18th Avenue, for 297.013 feet; thence S87°42'42"W for 17.28 feet to a Point of Curvature of a circular curve to the left, concave to the Southeast; thence Southwesterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42`, for an arc distance of 35.99 feet to a Point of Tangency; thence S37°25'01"W for 21.88 feet; thence NO2°37'25"W for 87.95 feet; thence S87°55*01"W along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence NO2°30'42'W for 241.00 feet; thence N87'55"01 "E along the North Boundary Line of said Tract "A", for 178.42 feet to the Point of Beginning. Page 9 of 9 Book32867/Page475 CFN#20210883164 Page 9 of 9 $1,000,000.00 PROMISSORY NOTE (HOME FUNDS) FOR BRISAS DEL ESTE APARTMENTS, LLC Miami, Florida 40Vi,rz /-e-t cr , 2021 FOR VALUE RECEIVED the undersigned, BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company (hereinafter referred to as the "Maker") at 2850 Tigertail Ave, Suite 800, Miami, FL 33133, promises to pay to the order of the CITY OF MIAMI, a Florida municipal corporation (hereinafter referred to as the "Lender"), at 444 S.W. 2"d Avenue, Miami, Florida 33130, or such other location or address as the Lender may direct from time to time, the principal sum of One Million and 00/100 Dollars ($1,000,000.00), 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 Brisas del Este Apartments, a rental Project, as described more fully in that certain HOME Loan Agreement between the Maker and the Lender of even date herewith (the "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 Leasehold Mortgage and Security Agreement (the "HOME Mortgage") and the other Loan Documents of even date herewith executed in favor of the Lender, relating to real property located at 3000 Northwest 18 Avenue, Miami, Florida 33142 (the "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 Loan Documents: (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 or guarantor 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 breach and the expiration of any applicable cure period(s), by the Maker of any of the terns, 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 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 or guarantor 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 Page 1 of 6 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), but only with respect to matured liabilities in the case of guarantors. 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) Bond Loan from the Housing Finance Authority of Miami -Dade County, Florida (the "Senior Lender"), in the amount of $27,250,000, as assigned to The Bank of New York Mellon Trust Company, N.A., as Fiscal Agent, which shall be reduced to not greater than $13,300,000 at the conversion to permanent financing, to the extent and in the manner provided in that certain Mortgage Subordination Agreement dated on or about the date hereof, between the Senior Lender and the Maker (collectively, the "Subordination Agreement"), and (ii) Community Development Block Grant Disaster Relief loan, in the original principal amount of $ 5,000,000, from Florida Housing Finance Corporation, evidenced by a Promissory Note and secured by a Mortgage both from Maker in favor of the Florida Housing Finance Corporation, and (iii) Miami -Dade County ("County") Surtax funds in the original principal amount of $4,000,000, evidenced by a Promissory Note and secured by a Mortgage both from Maker in favor of the County. 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 Agreement, if any. The rights and remedies of the lender and 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 Agreement. 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 perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement. 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 Page 2 of 6 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 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 any guarantor 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 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 any guarantor 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 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 both parties hereto, or their respective successors or assignees. 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 Page 3 of 6 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. WITNESSES: Print Name: ttie i,�v Print Name: Cu roc, - ACKNOWLEDGMENT STATE OF FLORIDA } COUNTY OF MIAMI-DADE } SS: MAKER: BRISAS DEL ESTE APARTMENTS, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager By: Print Name: Tony Del Pozzo Title: Vice President Date: i (A?`i` The foregoing instrument was acknowledged before me by means of 9'_f physical presence or ❑ online notarization this 2.4 clay of 064-c6 .f , 2021 by Tony Del Pozzo, as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company, who is personally known to me or has produced as identification. 4 DESIREE FAULKNER Notary Public - State of Florida Commission N GG 320239 ?o` My Comm. Expires Apr 13, 2023 Bonded through National Notary Assn. ❑tN `l, ary ' ablic, e of Florida at large Page 5 of 6 Attachment 1 Brisas del Este Apartments at 3000 Northwest 18 Avenue, Miami, Florida 33142 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 Loan Agreement). Interest on Principal outstanding shall accrue as follows: The Principal of this Promissory Note shall bear zero percent (0%) from the Effective Date until the Close -Out of the Project. 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 cure period, with the affordability requirements of the applicable funding source, the Agreement and/or the other Loan Documents, the Maker shall repay to the Lender all funds received by the Maker pursuant to this Agreement, 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. Page6of6 CFN 2021R0883165 OR BK 32867 Pss 476-492 (17Pss) RECORDED 11/23/2021 14:17:37 Prepared by, and after recording, return to: HARVEY RUVIN, CLERK OF COURT Victoria Mendez, Esq. MIAMI-DADE COUNTY, FLORIDA City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 3000 Northwest 18 Avenue, Miami, Florida 33142 Note to Recorder: This mortgage is given to secure the financing of housing under Part V of Chapter 420 of the Florida Statutes and is exempt from taxation pursuant to Section 420.513 Florida Statutes. LEASEHOLD MORTGAGE AND SECURITY AGREEMENT FOR BRISAS DEL ESTE APARTMENTS, LLC THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the "Mortgage"), is executed and delivered the 1 Mr day of i\jpettfiler, 2021 by BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company, whose address is 2850 Tigertail Ave, Suite 800, Miami, FL 33133 (hereinafter referred to as the "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 (hereinafter called "Mortgagee"). RECITALS WHEREAS, on April 16, 2021, the Mortgagee approved an allocation of One Million and 00/100 Dollars ($1,000,000.00) in HOME Investment Partnerships Program ("HOME") funds for construction of affordable residential apartment units in the Allapattah neighborhood of Miami, Florida ("Project"); and WHEREAS, Mortgagor has delivered to Mortgagee that certain HOME Promissory Note for Brisas del Este Apartments, 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 indebtedness evidenced by said Promissory Note) (the "Note"), which Note evidences the Indebtedness in the amount of One Million and 00/100 Dollars ($1,000,000.00) 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 One Million and 00/100 Dollars ($1,000,000.00) (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 Page 1 of 12 1-)4, Book32867/Page476 CFN#20210883165 Page 1 of 17 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 3000 Northwest 18 Avenue, Miami, Florida 33142, 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, forever. The Mortgagor does covenant with the Mortgagee that Mortgagor is indefeasibly seized of the Mortgaged Property in leasehold estate; that the Mortgagor has full power and lawful right to convey the Mortgaged Property in leasehold estate 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 fee simple title to the Mortgaged Property in the Mortgagee as may reasonably be required; and that the Mortgagor does hereby fully warrant the leasehold title to the Mortgaged Property, and will defend the same against the lawful claims of all persons whomsoever. 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 same date herein the other loan documents 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, Page 2 of 12 Book32867/Page477 CFN#20210883165 Page 2 of 17 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. 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. Page 3 of 12 Book32867/Page478 CFN#20210883165 Page 3 of 17 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 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 Page 4 of 12 Book32867/Page479 CFN#20210883165 Page 4 of 17 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, 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 period as may be provided in the Agreement; 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 (f) 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 Page 5 of 12 Book32867/Page480 CFN#20210883165 Page 5 of 17 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. 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 may be set forth in Section 6.5 of the Loan Agreement, or 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 Page 6 of 12 Book32867/Page481 CFN#20210883165 Page 6 of 17 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 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 attomment. 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 Page 7 of 12 Book32867/Page482 CFN#20210883165 Page 7 of 17 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 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, Page 8 of 12 Book32867/Page483 CFN#20210883165 Page 8 of 17 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 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 Page 9 of 12 Book32867/Page484 CFN#20210883165 Page 9 of 17 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 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 Page 10 of 12 Book32867/Page485 CFN#20210883165 Page 10 of 17 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 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 11 of 12 Book32867/Page486 CFN#20210883165 Page 11 of 17 IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand and seal the day and year first above written. WITNESSES: Print Name: Cu`t 4Z40e7— Print Name: t• a r-.7G• n e ca77-: STATE OF FLORIDA COUNTY OF MIAMI-DADE ) SS: MORTGAGOR: BRISAS DEL ESTE APARTMENTS, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager By: 104 Print Name: Tony Del Pozzo Title: Vice President Date: A 2101202.1 ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means ofQphysical presence or ❑ online notarization this 2 I day of O L olz-A7 . 2021 by Tony Del Pozzo, as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company, who is personally known to me or has produced as identification. . ,•,jtY°��' DESIREE FAULKNER I 0 ?Z*'` n Notary Public - State of Florida ' ;;� �pi Commission # GG 320239 .?or tea°' My Comm. Expires Apr 13, 2023 F Bonded through National Notary Assn. me: Nota bite, a e of Florida at large Book32867/Page487 CFN#20210883165 Page 12 of 17 EXHIBIT A Legal Description of The Propertv Parcel 1 - Leasehold: A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: BEGIN at the NE corner of said Tract "A"; thence S02°30'10"E along the East boundary line of said Tract "A", said line also being the West Right of Way line of NW 18th Avenue, for 297.08 feet; thence S87°42'42"W for 17.28 feet to a Point of Curvature of a circular curve to the left, concave to the Southeast; thence Southwesterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Point of Tangency; thence S37°25'01"W for 21.88 feet; thence NO2°37'25"W for 87.95 feet; thence S87°55'01"W along a line parallel with and 241 feet South of the North boundary line of said Tract "A", for 115.28 feet; thence NO2°30'42"W for 241.00 feet; thence N87°55'01"E along the North boundary line of said Tract "A", for 178.42 feet to the Point of Beginning. Parcel 2 - Non -Exclusive Easement: Together with that certain non-exclusive easement for the benefit of Parcel 1 as set forth in that certain Access, Amenities and Parking Agreement and Easement by and among Three Round Tower A, LLC, a Florida limited liability company, Three Round Tower B and C, LLC, a Florida limited liability company, and Brisas Del Este Apartments, LLC, a Florida limited liability company recorded October 17, 2017 in Official Records Book 30720, Page 2455, as amended and restated by Amended and Restated Access, Amenities and Parking Agreement and Easement dated August 11, 2020, recorded August 17, 2020, in Official Records Book 32053, Page 1214, over, under and across the following described property: The South 360 feet of Tract "A", in FORMAN SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 90, Page 99, of the Public Records of Miami -Dade County, Florida. AND A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Corner of said Tract "A"; thence S87°55'01"W along the North Boundary Line of said Tract "A", for 178.42 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence S02°30'42"E for 241.00 feet; thence N87°55'01"E along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence S02°37'25"E for 87.95 feet; thence S37°25'01"W for 95.77 feet; thence S03°16`42"E for 166.16 feet; thence S42°31'43"E for 60.25 feet; thence S87°48'07"W for 228.50 feet; thence NO2°28'42"W along the West Boundary Line of said Tract "A", for 615.28 feet to the NW Corner of said Tract "A"; thence N87°55'01"E along the North Boundary Line of said Tract "A", for 133.20 feet to the Point of Beginning. AND Book32867/Page488 CFN#20210883165 Page 13 of 17 A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Corner of said Tract "A"; thence S02°30'10"E along the East Boundary Line of said Tract "A", said line also being the West Right of Way Line of NW 18th Avenue, for 297.08 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue S02°30'10"E along said East Boundary Line of Tract "A", also being the West Right of Way Line of NW 18th Avenue, for 317.57 feet; thence S87°48'07"W for 83.37 feet; thence N42°31'43"W for 60.25 feet; thence NO3°16'42"W for 166.16 feet; thence N37°25'01"E for 117.65 feet to a Point of Curvature of a circular curve to the right, concave to the Southeast; thence Northeasterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Point of Tangency; thence N87°42'42"E for 17.28 feet to the Point of Beginning. Parcel 3 - Non -Exclusive Easement: Together with that certain non-exclusive easement for the benefit of Parcel 1 as set forth in that certain Easement Agreement by and between Three Round Towers B and C, LLC, a Florida limited liability company and Brisas Del Este Phase Two, LLC, a Florida limited liability company, dated August 11, 2020, recorded August 17, 2020, in Official Records Book 32053, Page 1232, as amended by that certain Amended and Restated Easement and Sublease Agreement by and among Three Round Towers B and C, LLC, a Florida limited liability company, Brisas Del Este Phase Two, LLC, a Florida limited liability company, and Brisas Del Este Apartments, LLC, a Florida limited liability company, to be recorded in the Public Records of Miami -Dade County, Florida, over and across the following described property: A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Corner of said Tract "A"; thence S87°55'01"W along the North Boundary Line of said Tract "A", for 178.42 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence S02°30'42"E for 241.00 feet; thence N87°55'01"E along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence S02°37'25"E for 87.95 feet; thence S37°25'01"W for 95.77 feet; thence S03°16'42"E for 166.16 feet; thence S42°31'43"E for 60.25 feet; thence S87°48'07"W for 228.50 feet; thence NO2°28'42"W along the West Boundary Line of said Tract "A", for 615.28 feet to the NW Corner of said Tract "A"; thence N87°55'01"E along the North Boundary Line of said Tract "A", for 133.20 feet to the Point of Beginning. Book32867/Page489 CFN#20210883165 Page 14 of 17 EXHIBIT B Permitted Encumbrances on the Mortgaged Property All permitted encumbrances on the Property are described in that certain Title Insurance Commitment, Order Number 8865652, Issuing Office File No. 30364.1093, Revision No. 9, issued by Fidelity National Title Insurance Company effective as of October 12, 2021 at 8:00 a.m. #9974894 v2 30364-1093 Book32867/Page490 CFN#20210883165 Page 15 of 17 HUD PROVISIONS RIDER Modifying City of Miami Loan Documents (Brisas del Este Apartments) This Rider is attached to and made a part of the Leasehold Mortgage and Security Agreement (the "Mortgage") given by Brisas del Este Apartments, LLC ("Mortgagor"), in favor of City of Miami, a municipal corporation of the State of Florida (the "City" or the "Lender") and hereby modifies that document in addition to the Loan Documents as defined in the City's Loan Agreement (collectively, the City Mortgage and Loan Documents are referred to herein as "City Loan Documents") by and between Mortgagor and the City. 1. Inconsistent Provisions. If the provisions of this Rider are inconsistent with the provisions of the City Loan Documents, the provisions of this Rider shall be controlling. 2. Defined Terms. Capitalized terms not defined herein are as defined in the City Loan Documents. 3. Regulatory and Operating Agreement — Public Housing Units. The parties hereto acknowledge that thirty (30) of the dwelling units to be developed on the land shall be subject to that certain Regulatory and Operating Agreement between Miami -Dade County ("Authority") and Mortgagor of approximately even date herewith (the "Regulatory and Operating Agreement") and shall be operated as public housing units in accordance therewith ("Public Housing Units"). Mortgagor shall be required to comply with the Public Housing Requirements (as defined in the Regulatory and Operating Agreement) as they relate to the Public Housing Units, including any restrictions that may be more restrictive than those herein. 4. HUD Regulatory Documents. The Lender acknowledges that the HUD Declaration of Trust and Restrictive Covenants and Regulatory and Operating Agreement (collectively, the "HUD Regulatory Documents") will be recorded prior to any of the recordable City Loan Documents and the Mortgagor will be required to comply with the terms and conditions of the HUD Regulatory Documents, including any restrictions that may be more restrictive than those herein. 5. Subordination to HUD Regulatory Documents. The lien on the land pursuant to the City Mortgage is subordinate and subject to the HUD Regulatory Documents. 6. Permitted Encumbrances. Lender hereby acknowledges that it has no objection to the permitted encumbrances as set forth in Schedule B of the title insurance policy delivered to the Lender at the time of recording of the City Mortgage. 7. Restoration Upon Casualty or Condemnation. Notwithstanding anything contained in the City Loan Documents to the contrary, restoration shall be determined in a manner consistent with Section 9 of the Mixed Finance Amendment to Consolidated Annual Contributions Contract, dated of approximately even date herewith, as amended by the First Rider to the Mixed Finance Amendment to Consolidated Annual Contributions Contract. {Dl 135806.DOC / 2 #9974937 vl 30364-1093 DC233-168} Book32867/Page491 CFN#20210883165 Page 16 of 17 OR BK 32867 PG 492 LAST PAGE or operating subsidy shall only be utilized in accordance with the Regulatory and Operating Agreement and any Project reserves which contain public housing rent or operating subsidy shall be utilized in accordance with the Regulatory and Operating Agreement. 9. HUD Preemption Clause. The parties hereto acknowledge and agree that, notwithstanding any other requirement to the contrary, HUD's Conflict Clause will prevail, control, and govern in instances of conflict between the Federal Public Housing Requirements and any other requirement to the contrary in any of the legal documents entered into by the parties as part of this transaction, including the City Loan Documents 10. HUD Conflicts Clause. To the extent that any of the City Loan Documents is in conflict with the requirements of the United States Housing Act of 1937, as amended, Federal regulations, and the Annual Contributions Contract, as amended, (the "Federal Public Housing Requirements"), such Federal Public Housing Requirements shall control and govern in such instances of conflict. 11. Recording. This Rider shall be recorded as an attachment to the City Mortgage. 12. Notices. Any notices of Mortgagor default provided pursuant to the Loan Documents shall also be provided to the Authority and as follows: If to the Authority, to: And a copy to: And a copy to: {D1135806.DOC / 2 49974937 vl 30364-1093 DC233-168} Miami -Dade County c/o Miami -Dade Public Housing and Community Development 701 N.W. 1st Court, 16th Floor Miami, FL 33136 Attn: Michael Liu, Director Miami -Dade County Attomey's Office 111 N.W. 1st Street, Suite 2810 Miami, FL 33128 Attn: Terrence A. Smith, Assistant County Attorney Reno & Cavanaugh, PLLC 455 Massachusetts Avenue, NW, Suite 400 Washington, DC 20001 Attn: Efrem Levy, �1Esq. LENDER'S INITIALS 471 MORTGAGOR'S INITIALS: (/O Book32867/Page492 CFN#20210883165 Page 17 of 17 111111111111111111111111111111111111111111111 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: 3000 Northwest 18 Avenue, Miami, Florida 33142 CFN 2021 R08831 63 OR BK 32867 P9s 460-466 (7Pss) RECORDED 11/23/2021 14:17:37 HARVEY RUVIN, CLERK OF COURT MIAMI-DADE COUNTY, FLORIDA 32 4, yie DECLARATION OF RESTRICTIVE COVENANTS FOR BRISAS DEL ESTE APARTMENTS This Declaration of estrictive Covenants for Brisas Del Este Apartments (the "Covenant") made this ISM day of �s, 2021 ("Effective Date") by BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company (hereinafter referred to as "Project Sponsor"), is in favor of the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as the "City"). RECITALS WHEREAS, the Project Sponsor is the owner of a leasehold estate in the property legally described in Exhibit "A," attached hereto and incorporated herein; 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 ("City"), a Florida municipal corporation. It shall remain in full force and effect until released by the City; and WHEREAS, the City has loaned $1,000,000.00 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, among other things, increase the supply of rental housing units for Very Low and Low Income Households in the community known as Allapattah (hereinafter referred to as the "Project"), which consists of the new construction of a 8-floor mid -rise residential building located at 3000 Northwest 18 Avenue, Miami, Florida 33142, as legally described in Exhibit "A" (hereinafter referred to as the "Property"). The Project consists of a total of one hundred sixty one (161) residential apartment units. A total of thirty (30) residential apartment units are HOME -assisted units (the "HOME - Assisted Units") developed on the Property, and are all subject to the terms, covenants, and restrictions contained herein; and WHEREAS, the City's allocation of funds for the Project is subject to that certain HOME Investment Partnerships Program Loan Agreement for Brisas Del Este Apartments (the "HOME Loan Agreement" or "Loan Agreement") and 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 Page 1 of 7 Book32867/Page460 CFN#20210883163 Page 1 of 7 obligating the Project Sponsor, its successors, transferees, and assigns to maintain and operate the Property in accordance with 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, 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 thirty (30) HOME Assisted Units in the Project that shall remain Affordable for eligible tenants. Six (6) of the thirty (30) HOME Assisted Units shall remain Affordable to Very Low Income Households, and twenty-four (24) of the thirty (30) units shall remain Affordable to 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 thirty (30) HOME Assisted Units shall consist of fifteen (15) one bedroom/one bathroom apartment units, and fifteen (15) two 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. "Low Income" shall mean a household whose annual income does not exceed eighty percent (80%) 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. 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. The Affordability Period of this Project is thirty (30) years commencing on Close -Out of the Project. 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 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 Page 2 of 7 Book32867/Page461 CFN#20210883163 Page 2 of 7 Loan Documents), or (ii) that the Project Sponsor ceases to exist as an organization, 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. 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 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 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 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, Page 3 of 7 Book32867/Page462 CFN#20210883163 Page 3 of 7 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 Fees. In the event 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 Book32867/Page463 CFN#20210883163 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. WITNESSES: PROJECT SPONSOR: BRISAS DEL ESTE APARTMENTS, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager Print Name: By: Print Name: ` �d C. 'H r �o e r� STATE OF FLORIDA COUNTY OF MIAMI-DADE Print Name: Ton9 ilr/ y Del Pozzo Title: Vice President Date: (,d210 ACKNOWLEDGMENT } ) SS: The foregoing instrument was acknowledged before me by means of L9' ssical presence or 0 online notarization this L.4 day of Q( , 2021 by Tony Del Pozzo, as Vice President of Brisas del Este Apartments Manager, LLC, a Florida limited liability company, the manager of Brisas del Este Apartments, a Florida limited liability company, who is personally known to me or has produced as identification. DESIREE FAULKNER ( ;:e . ;':, Notary Public - State of Florida Prin �P; Commission # GG 320239 1 ''Eor n- '' My Comm. Expires Apr 13, 2023 Bonded through National Notary Assn, Page 5 of 7 Notaryublic, State of Florida at large Book32867/Page464 CFN#20210883163 Page 5 of 7 ATTEST J CITY OF MIAMI, a . nicipal corporation of the State of / Florida Todd Hanno Date: APPROVED AS TO CORRECT By: Arthur Noriega V, y Manager CE APPROVED AS TO FORM AND REQUIREMENTS Ann-Merie Sh. .' Vidt 1Vlendez Director of Risk a : gement City Attorney Page 6 of 7 Book32867/Page465 CFN#20210883163 Page 6 of 7 OR SK 32867 PG 466 LAST PAGE Exhibit A Legal Description Of The Property A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: BEGIN at the NE Corner of said Tract "A"; thence S02°30'10"E along the East Boundary Line of said Tract "A", said line also being the West Right of Way Line of NW 18th Avenue, for 297.08 feet; thence S87°4242"W for 17.28 feet to a Point of Curvature of a ocular curve to the left, concave to the Southeast; thence Southwesterly along the arc of saki curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Paint of Tangency; thence 537°25'01 "W for 21.88 feet; thence NO2°37'25"W for 87.95 feet; thence S87°55'01'W along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence NO2°30'42"W for 241.00 feet; thence N87'55'01 "E along the North Boundary Line of said Tract "A", for 178.42 feet to the Point of Beginning. Page7of7 Book32867/Page466 CFN#20210883163 Page 7 of 7 1111111 11111 11111 11111 11111 11111 11111 1111 1111 TFIIS INSTRUMENT PREPARED BY AND RETURN TO: Junious D. Brown III, Esq. Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 SUBORDINATION AGREEMENT CFN 2021R0883167 OR BK 32867 Pss 514-532 (19Pss) RECORDED 11/23/2021 14:17:37 HARVEY RUVIN, CLERK OF COURT MIAMI-DADE COUNTY, FLORIDA ABOVE SPACE RESERVED FOR RECORDING PURPOSES ONLY (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) THIS SUBORDINATION AGREEMENT (this "Agreement") is made and entered into as of November 19, 2021, by and among (i) FLORIDA HOUSING FINANCE CORPORATION, a public corporation and a public body corporate and politic duly created and existing under the laws of the State of Florida ("Senior Lender"), (ii) CITY OF MIAMI, a municipal corporation of the State of Florida (the "Subordinate Lender") (which term as used in every instance shall include Subordinate Lender's successors and assigns), and (iii) BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company ("Borrower"). RECITALS A. Senior Lender has issued a loan to the Borrower under Florida Housing Finance Corporation Request for Applications 2019-102, in effect as of July 30, 2019 ("RFA"), and the Community Development Block Grant Disaster Recovery ("CDBG-DR") Program, Section 420.5087, Fla. Stat., and governed by the rules of Florida Housing Finance Corporation, as codified at Chapter 67-53, Fla. Admin. Code, in effect as of August 20, 2009 (collectively, including the RFA, the "Rule"), in the original principal amount of FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00) (the "Senior Loan"). The Senior Loan has been secured by a Leasehold Mortgage and Security Agreement dated as November 19, 2021, made by Borrower to and in favor of Senior Lender, and to be recorded in the Public Records of Miami -Dade County, Florida (the "Senior Security Instrument") on a multifamily rental housing development located on certain real property in Miami -Dade County, Florida, known as Brisas del Este Apartments (the "Property"). The Property is more fully described in Exhibit "A" attached hereto. The Borrower's obligation to repay the Senior Loan is evidenced by a Promissory Note, dated November 19, 2021 and maturing May 19, 2045 (the "Senior Note"). Subordination Agt (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page514 CFN#20210883167 Page 1 of 19 B. The Borrower has requested that Senior Lender permit the Subordinate Lender to make a separate subordinate loan of funds to Borrower in the principal amount of ONE MILLION AND NO/100 (S1,000,000.00) (the "Subordinate Loan"), and secure the Subordinate Loan by placing a separate mortgage lien against the Property. C. The Senior Lender has agreed to permit the Subordinate Lender to make the Subordinate Loan and to place a separate subordinate mortgage lien against the Property subject to all of the conditions contained in this Agreement. NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate Lender to make the Subordinate Loan to the Borrower and to place a subordinate mortgage lien against the Property, and in consideration thereof, the Senior Lender, the Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a Senior Loan Default has occurred under the Senior Loan; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under either of the loans comprising the Subordinate Loan. Each Default Notice shall specify the default upon which such Default Notice is based. "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. Subordination Agt (City of Miami) 2 (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page515 CFN#20210883167 Page 2 of 19 "Senior Lender" means the Person named as such in the first paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Senior Note after the date of this Agreement. "Senior Loan Default" means the occurrence of an "Event of Default" as that term is defined in the Senior Loan Documents. "Senior Loan Documents" means the Senior Note, the Senior Security Instrument and all other documents evidencing, securing or otherwise executed and delivered in connection with the Senior Loan. "Subordinate Lender" means the Person named as such in the first paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Agreement" means that certain HOME Loan Agreement by and between the Borrower and the Subordinate Lender governing the loaning of the proceeds of the Subordinate Loan to the Borrower. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Security Instrument, the Subordinate Loan Agreement, the Subordinate Rental Regulatory Agreement, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Note" means the Promissory Note made by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. "Subordinate Rental Regulatory Agreement" means, collectively, that certain (i) Rental Regulatory Agreement, and (ii) Declaration of Restrictive Covenants, each by and between the Borrower and the Subordinate Lender pertaining to the operation of the Property. "Subordinate Security Instrument" means the Leasehold Mortgage and Security Agreement encumbering the Property as security for the Subordinate Loan, of which the Subordinate Lender will cause to be recorded among the applicable land records. 2. Permission to Place Mortgage Liens Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the Senior Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to record the Subordinate Security Instrument and other recordable Subordinate Loan Documents against the Property (which are subordinate in all Subordination Agt (City of Miami) 3 (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page516 CFN#20210883167 Page 3 of 19 respects to the lien of the Senior Security Instrument, other than as set forth herein) to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 are not true and correct on both of those dates, the provisions of the Senior Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower and Subordinate Lender Representations and Warranties. The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) The Borrower makes the following representations and warranties to the Senior Lender: (1) Subordinate Note. The Subordinate Note contains substantially the following provision: "The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of all amounts then due and payable (including, but not limited to, all amounts due and payable by virtue of any default or acceleration or upon maturity) with respect to the indebtedness evidenced by the Promissory Note dated as of even date herewith, in the original principal amount of $5,000,000.00 executed by Maker and payable to Florida Housing Finance Corporation (the "Senior Lender"), to the extent and in the manner provided in that certain Subordination Agreement dated as of even date herewith, between the Holder of this Note, the Senior Lender and the Maker (the "Subordination Agreement"). The rights and remedies of the payee and each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of this Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the "Subordinate Lender" under the Subordination Agreement." (2) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and Borrower is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (3) Subordinate Loan Term. The term of the Subordinate Note does not end before the term of the Senior Note. 4 Subordination Agt (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page517 CFN#20210883167 Page 4 of 19 (4) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Senior Lender prior to the date of this Agreement. Upon execution and delivery of the Subordinate Loan Documents, Borrower shall deliver to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (b) The Subordinate Lender makes the following representations and warranties to the Senior Lender: (1) Subordinate Note. The Subordinate Note contains substantially the following provision: "The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of all amounts then due and payable (including, but not limited to, all amounts due and payable by virtue of any default or acceleration or upon maturity) with respect to the indebtedness evidenced by the Promissory Note dated as of even date herewith, in the original principal amount of $5,000,000.00 executed by Maker and payable to Florida Housing Finance Corporation (the "Senior Lender"), to the extent and in the manner provided in that certain Subordination Agreement dated as of even date herewith, between the Holder of this Note, the Senior Lender and the Maker (the "Subordination Agreement"). The rights and remedies of the payee and each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of this Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the "Subordinate Lender" under the Subordination Agreement." (2) Subordinate Loan Term. The term of the Subordinate Note does not end before the term of the Senior Note. (3) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Senior Lender prior to the date of this Agreement. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the Senior Loan Documents, and (ii) the Subordinate Security Instrument and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Senior Security Instrument and the other Senior Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the Senior Security Instrument and the other Senior Loan Documents (including but not limited to, all sums advanced for the purposes of (1) protecting or further securing the lien of the Senior Security Instrument, curing defaults by the Subordination Agt (City of Miami) 5 (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page518 CFN#20210883167 Page 5 of 19 Borrower under the Senior Loan Documents or for any other purpose expressly permitted by the Senior Security Instrument, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of the advance payment by Subordinate Lender of real estate taxes, casualty insurance premiums or other monetary obligations of the Borrower to protect the Property, the Subordinate Lender, by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, acquires by right of subrogation or otherwise a lien on the Property which would (but for this subsection) be senior to the lien of the Senior Security Instrument, then, in that event, such lien shall be subject and subordinate to the lien of the Senior Security Instrument, only to the extent of the amount advanced, provided that Subordinate Lender gives Senior Lender prior written notice of its intent to advance sums for real property taxes and/or casualty insurance. (c) Payments Before Senior Loan Default. Until the Subordinate Lender receives a Default Notice of a Senior Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After Senior Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a Senior Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Security Instrument) without the Senior Lender's prior written consent excluding, however, such sums which were due and owing and received by the Subordinate Lender prior to receipt of said notice or the time it otherwise acquires knowledge of the Senior Loan Default. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Security Instrument) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the Senior Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4(d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies 6 Subordination Agt (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page519 CFN#20210883167 Page 6 of 19 the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the Senior Loan Documents in accordance with the provisions of the Senior Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the applicable Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4(e), shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the applicable Subordinate Loan. (f) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five (5) Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice provided, however that the Subordinate Lender shall be entitled, during such 60-day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents. All amounts paid by the Senior Lender in accordance with the Senior Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Senior Security Instrument. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder unless and until it has given the Senior Lender at least 60 days' prior written notice; during such 60 day period, however, the Subordinate Lender shall be entitled to exercise and enforce all other rights and remedies available to the Subordinate Lender under the Subordinate Loan Documents and/or under applicable laws. Notwithstanding anything to the contrary in this Section 5(b), during such 60 Subordination Agt (City of Miami) % (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page520 CFN#20210883167 Page 7 of 19 day period, Subordinate Lender shall be entitled to exercise its rights to enforce covenants and agreements of the Borrower relating to income, rent or affordability restrictions. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a Senior Loan Default under the Senior Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Senior Loan Documents in the same manner as in the case of any other Senior Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the Senior Loan Documents, any Senior Loan Default under the Senior Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the Senior Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such Senior Loan Default. 6. Default Under Senior Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five (5) Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the Senior Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such Senior Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60-day period to continue to pursue its remedies under the Senior Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non -monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the Senior Loan Documents. In the event that such a non -monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a Senior Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the applicable Subordinate Security Instrument. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a Senior Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the Senior Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the Senior Security Instrument to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the Senior Security Instrument. At any time after a Senior Loan Default is determined to constitute a default under Subordination Agt (City of Miami) g (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page521 CFN#20210883167 Page 8 of 19 the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any Senior Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior Lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from such Senior Loan Default shall be deemed cured and the applicable Subordinate Loan shall be retroactively reinstated as if such Senior Loan Default had never occurred. 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the Senior Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the Senior Security Instrument and the Subordinate Security Instrument, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Senior Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any Senior Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the Senior Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the Senior Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right, after ten (10) business days' notice to Senior Lender, to advance funds to cure Senior Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Security Instrument for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fire or other casualty resulting in damage to all Subordination Agt (City of Miami) 9 (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page522 CFN#20210883167 Page 9 of 19 or a portion of the Property (collectively, a "Casualty"), at any time or times when the Senior Security Instrument remains a lien on the Property the following provisions shall apply: (1) The Subordinate Lender, in its sole capacity as lender, hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the Senior Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) All proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Senior Loan) in the manner set forth in the Senior Security Instrument; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the Senior Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the Senior Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the Senior Loan Documents have been paid in full, it will not, without the prior_ written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the Senior Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. 9. Modification or Refinancing of Senior Loan. In an Event of Default or threatened, imminent default, under the Senior Loan Documents, the Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the Senior Loan Documents, including any provision requiring the payment of money, without the prior approval of Subordinate Lender. Subordinate Lender further agrees that its agreement to subordinate Subordination Agt (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) 10 Book32867/Page523 CFN#20210883167 Page 10 of 19 hereunder shall not extend to any new mortgage debt which is for the purpose of refinancing all or any part of the Senior Loan (including reasonable and necessary costs associated with the closing and/or the refinancing) that has not been previously approved by Subordinate Lender; 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 Loan, the Senior Note, the Senior Security Instrument, the Senior Loan Documents and Senior Lender 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. 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non -defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two (2) days after mailing in the United States), addressed to the respective parties as follows: Senior Lender: with a copy to: Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Attention: Executive Director Phone: (850) 488-4197 Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 Attention: Junious D. Brown III, Esq. Phone: (850) 224-4070 Email: jbrown(a,ngn-tally.com Subordination Agt (City of Miami) 11 (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page524 CFN#20210883167 Page 11 of 19 Subordinate Lender: City of Miami Department of Housing and Community Development One Flagler Building 14 Northeast 1st Avenue, Second Floor Miami, Florida 33132 Attention: George Mensah, Director with a copy to: Borrower: with a copy to: with a copy to: City of Miami Office of the City Attorney 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 Attention: Victoria Mendez Telephone: (305) 416-1800 Email: law@miamigov.com Brisas del Este Apartments, LLC c/o The Related Group 2850 Tigertail Avenue, Suite 800 Miami, Florida 33133 Attention: Tony Del Pozzo Email: tony@relatedgroup.com Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street Suite 2200, Museum Tower Miami, Florida 33130 Attention: Brian J. McDonough Telephone: (305) 789-3200 Email: bmcdonougha,stearnsweaver.com Bilzin Sumberg Baena Price & Axelrod LLP 1450 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attention: Terry Lovell Email: tlovell@bilzin.com Borrower's Investor Member: Bank of America, N.A. 225 Franklin Street Boston, Massachusetts 02110 Attention: Tax Credit Asset Management (Brisas del Este Apartments) Telephone: (617) 346-0130 Email: LIHTCreporting@bofa.com Subordination Agt (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) 12 Book32867/Page525 CFN#20210883167 Page 12 of 19 with a copy to: Holland & Knight 10 St. James Avenue Boston, Massachusetts 02116 Attention: Sara C. Heskett, Esq. Telephone: (503) 243-5860 Email: sara.heskett@hklaw.com Any party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 12. General. (a) Assignment/Successors. This Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's permission for the placement of the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Subordinate Lender Executes Solely In Capacity As Lender. Subordinate Lender executes this Agreement solely in its capacity as a lender toward the Property. Nothing contained in this Agreement is intended, nor will it be construed, to in any way restrict, limit or govern the rights of Subordinate Lender 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 Borrower or the Property to the same extent as if it were not a party to this Agreement. Therefore, nothing contained herein shall affect Subordinate Lender's ability to lawfully (i) enforce the City of Miami Code of Ordinances, (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, or (iv) exercise any other rights and powers outside its role of Subordinate Lender. (e) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments Subordination Agt (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) 13 Book32867/Page526 CFN#20210883167 Page 13 of 19 and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Security Instrument is subordinate to the lien, covenants and conditions of the Senior Security Instrument, or to further evidence the intent of this Agreement. (f) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (g) Governing Law and Venue. This Agreement shall be governed by the laws of the State of Florida. Any dispute arising under, in connection with or related to this Agreement or related to any matter which is the subject of this Agreement shall be subject to the exclusive jurisdiction of the state and/or federal courts located in Miami -Dade County, Florida or Leon County, Florida. (h) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (i) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the Senior Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or an assignment in lieu of foreclosure of, or the exercise of a power of sale contained in, the Senior Security Instrument; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or an assignment in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Security Instrument, but only if such acquisition of title does not violate any of the terms of this Agreement. (j) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. [COUNTERPART SIGNATURE PAGES TO FOLLOW] Subordination Agri (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) 14 Book32867/Page527 CFN#20210883167 Page 14 of 19 COUNTERPART SIGNATURE PAGE TO SUBORDINATION AGREEMENT (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. WITNESSES: Print: Print: wL I-f E 61113 nk 44)(9401 STATE OF FLORIDA COUNTY OF LEON SENIOR LENDER: FLORIDA HOUSING FINANCE CORPORATION David R. Westcott Managing Director of Homeowner Programs [SEAL] The foregoing instrument was acknowledged��. • re me by means of P physical presence or 0 online notarization, this a6 ` day of 40 Il jek•1• • , 2021, by DAVID R. WESTCOTT, as Managing Director of Homeowner Programs of the FLORIDA HOUSING FINANCE CORPORATION, a public corporation and a public body corporate and politic duly created and existing under the laws of the State of Florida, on behalf of Florida Housing. Said person is (check one) Erpersonally known to me or ❑ has produced a valid driver's license as identification. [Notary Seal] DONNA R. PHILLIPS Notary Public • State of Florida Commission # HH 019659 o+, d Comm. Expires Jul 27, 2024 n My Bonded through National Notary Assn. Signature of person taking acknowled:y ent Name (typed, printed or stamped): Title or Rank: Serial number (if any): S-1 Book32867/Page528 CFN#20210883167 Page 15 of 19 COUNTERPART SIGNATURE PAGE TO SUBORDINATION AGREEMENT (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. [SEAL] ATTEST: Todd Hannolerk Date: it I lat)r- By: a Mendez, 6ity£Attorney SUBORDINATE LENDER: CITY OF MIAMI, a municipal corporation of the State of Florida By: Arthur Noriega City Manager STATE OF FLORIDA COUNTY OF MIAMI-DADE App oved as to form and correctness: tii The foregoing instrument was acknowledged before me by means of physical presence or ❑ online notarization, this c day of ► /oembe,� , 2021, by ARTHUR NORIEGA as City Manager of the CITY OF MIAMI, a municipal corporation of the State of Florida, on behalf of said municipal corporation. Said person is (check one) personally known to me or ❑ has produced a valid driver's license as identification. [Notary Seal] SANDRA GILBERT ••.6 MY COMMISSION # HH 112572 V EXPIRES: April 20, 2025 nor . Banded ThN Notary Public Underwrilmt Title or Rank: Serial number (if any): S-2 Book32867/Page529 CFN#20210883167 Page 16 of 19 COUNTERPART SIGNATURE PAGE TO SUBORDINATION AGREEMENT (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. WITNESSES: Print: A)GkY Print: Atrite in -is l STATE OF FLORIDA COUNTY OF MIAMI-DADE BORROWER: BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company By: Brisas Del Este Apartments Manager, LLC, a Florida limited liability company, its manager By: 'l9J Tony Del Pozzo, Vice President Address: c/o The Related Group 2850 Tigertail Avenue, Suite 800 Miami, Florida 33133 The foregoing instrument was acknowledged before me by means of CI' physical presence or Cl online notarization, this 24 day of Qc&,,f- , 2021, by TONY DEL POZZO, as Vice President of BRISAS DEL ESTE APARTMENTS MANAGER, LLC, a Florida limited liability company, the Manager of BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liab'lity company, on behalf of the limited liability companies. Said person is (check one) identification. personally known to me or D has produced a valid driver's license as [Notary Seal] 'i�',. DESIREE FAULKNER :°�) `: Notary Public • State of Florida ;� Commission ttGG 320239 '• For n`' My Comm. Expires Apr 13, 2023 Bonded through National Notary Assn. Signature of person taking acknowledgment---, --- Name (typed, printed or stamped)r A yet, -1—Ctt, 4 1,t)-1/ Title or Rank: %'l.o.,...* VA.!" Serial number (if any): 32o2-S1 S-3 Book32867/Page530 CFN#20210883167 Page 17 of 19 EXHIBIT "A" LEGAL DESCRIPTION (Brisas del Este Apartments) Parcel 1 - Leasehold: A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: BEGIN at the NE corner of said Tract "A"; thence S02°30'10"E along the East boundary line of said Tract "A", said line also being the West Right of Way line of NW 18th Avenue, for 297.08 feet; thence S87°42'42"W for 17.28 feet to a Point of Curvature of a circular curve to the left, concave to the Southeast; thence Southwesterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Point of Tangency; thence S37°25'01 "W for 21.88 feet; thence NO2°37'25"W for 87.95 feet; thence S87°55'01 "W along a line parallel with and 241 feet South of the North boundary line of said Tract "A", for 115.28 feet; thence NO2°30'42"W for 241.00 feet; thence N87°55'01"E along the North boundary line of said Tract "A", for 178.42 feet to the Point of Beginning. Parcel 2 - Non -Exclusive Easement: Together with that certain non-exclusive easement for the benefit of Parcel 1 as set forth in that certain Access, Amenities and Parking Agreement and Easement by and among Three Round Tower A, LLC, a Florida limited liability company, Three Round Tower B and C, LLC, a Florida limited liability company, and Brisas Del Este Apartments, LLC, a Florida limited liability company recorded October 17, 2017 in Official Records Book 30720, Page 2455, as amended and restated by Amended and Restated Access, Amenities and Parking Agreement and Easement dated August 11, 2020, recorded August 17, 2020, in Official Records Book 32053, Page 1214, over, under and across the following described property: The South 360 feet of Tract "A", in FORMAN SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 90, Page 99, of the Public Records of Miami -Dade County, Florida. AND A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Comer of said Tract "A"; thence S87°55'01 "W along the North Boundary Line of said Tract "A", for 178.42 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence S02°30'42"E for 241.00 feet; thence N87°55'01 "E along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence S02°37'25"E for 87.95 feet; thence S37°25'0l "W for 95.77 feet; thence S03°16'42"E for Subordination Agt (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) Book32867/Page531 CFN#20210883167 Page 18 of 19 OR BIG 32867 PG 532 LAST PAGE 166.16 feet; thence S42°31'43"E for 60.25 feet; thence S87°48'07"W for 228.50 feet; thence NO2°28'42"W along the West Boundary Line of said Tract "A", for 615.28 feet to the NW Corner of said Tract "A"; thence N87°55'01 "E along the North Boundary Line of said Tract "A", for 133.20 feet to the Point of Beginning. AND A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Corner of said Tract "A"; thence S02°30'10"E along the East Boundary Line of said Tract "A", said line also being the West Right of Way Line of NW 18th Avenue, for 297.08 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue S02°30' 10"E along said East Boundary Line of Tract "A", also being the West Right of Way Line of NW 18th Avenue, for 317.57 feet; thence S87°48'07"W for 83.37 feet; thence N42°31'43"W for 60.25 feet; thence NO3°16'42"W for 166.16 feet; thence N37°25'01"E for 117.65 feet to a Point of Curvature of a circular curve to the right, concave to the Southeast; thence Northeasterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Point of Tangency; thence N87°42'42"E for 17.28 feet to the Point of Beginning. Parcel 3 - Non -Exclusive Easement: Together with that certain non-exclusive easement for the benefit of Parcel 1 as set forth in that certain Easement Agreement by and between Three Round Towers B and C, LLC, a Florida limited liability company and Brisas Del Este Phase Two, LLC, a Florida limited liability company, dated August 11, 2020, recorded August 17, 2020, in Official Records Book 32053, Page 1232, as amended by that certain Amended and Restated Easement and Sublease Agreement by and among Three Round Towers B and C, LLC, a Florida limited liability company, Brisas Del Este Phase Two, LLC, a Florida limited liability company, and Brisas Del Este Apartments, LLC, a Florida limited liability company, to be recorded in the Public Records of Miami -Dade County, Florida, over and across the following described property: A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Corner of said Tract "A"; thence S87°55'01 "W along the North Boundary Line of said Tract "A", for 178.42 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence S02°30'42"E for 241.00 feet; thence N87°55'01 "E along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence S02°37'25"E for 87.95 feet; thence S37°25'01"W for 95.77 feet; thence S03°16'42"E for 166.16 feet; thence S42°31'43"E for 60.25 feet; thence S87°48'07"W for 228.50 feet; thence NO2°28'42"W along the West Boundary Line of said Tract "A", for 615.28 feet to the NW Comer of said Tract "A"; thence N87°55'01 "E along the North Boundary Line of said Tract "A", for 133.20 feet to the Point of Beginning. Subordination Agt (City of Miami) (Brisas del Este Apartments / CDBG-DR / RFA 2019-102 / 2020-056D) A-2 Book32867/Page532 CFN#20210883167 Page 19 of 19 THIS INSTRUMENT PREPARED BY, RECORDED AND RETURN TO: Holland & Knight LLP 31 West 52nd Street New York, New York 10019 Attention: Kathleen M. Furey, Esq. 111111111111111111111111111111111111111111111 CFN 2021R0883166 OR BK 32867 Pss 493-513 (21Pss) RECORDED 11/23/2021 14:17:37 HARVEY RUVIN, CLERK OF COURT MIAMI-DADE COUNTY. FLORIDA (Reserved) SUBORDINATION AGREEMENT (City Loan) This SUBORDINATION AGREEMENT ("Agreement") is entered into this 19th day of November, 2021 (the "Effective Date"), by and between, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, with a representative corporate trust office in Jacksonville, Florida ("Senior Lender") and CITY OF MIAMI, a municipal corporation of the State of Florida ("Subordinate Lender"). RECITALS A. BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company organized under the laws of the State of Florida ("Borrower") is the owner of certain land located in Miami -Dade County, Florida, described in Exhibit A ("Land"). The Land is improved with a multifamily rental housing project ("Improvements"). B. HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, a public body corporate and politic duly created, organized and existing under the laws of the State of Florida ("Governmental Lender"), the original holder of the Senior Note, has made a loan to Borrower in the original principal amount of Twenty Seven Million Two Hundred Fifty Thousand and No/100 Dollars ($27,250,000.00) ("Senior Loan") upon the terms and conditions of a Construction Phase Project Loan Agreement dated as of November 1, 2021 and a Project Loan Agreement dated as of November 1, 2021 (together, the "Protect Loan Agreement") among Governmental Lender, Senior Lender (in its capacity as Fiscal Agent under the Funding Loan Agreement (defined below)) and Borrower in connection with the Mortgaged Property. The Senior Loan is secured by a Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated as of November 1, 2021 ("Senior Mortgage") encumbering the Land, the Improvements and related personal and other property described and defined in the Senior Mortgage as the "Mortgaged Property." C. Pursuant to a HOME Loan Agreement dated as of the Effective Date between Subordinate Lender and Borrower ("Subordinate Loan Agreement"), Subordinate Lender has made or is making a loan to Borrower in the original principal amount of $1,000,000 ("Subordinate Loan"). The Subordinate Loan is or will be secured by a Leasehold Mortgage and Security Agreement dated as Subordination Agreement (City Loan) Book32867/Page493 CFN#20210883166 Page 1 of 21 of the Effective Date ("Subordinate Mortgage") encumbering all or a portion of the Mortgaged Property. D. The Senior Mortgage will be recorded in the real property records of Miami -Dade County, Florida ("Recording Office") The Subordinate Mortgage will be recorded in the Recording Office at following the recording of the Senior Mortgage. E. The Senior Note was assigned by the Governmental Lender to Senior Lender as security for the loan made by the Initial Funding Lender (as defined below) to the Governmental Lender pursuant to the Funding Loan Agreement (the "Funding Loan"). The Senior Mortgage was assigned by the Governmental Lender to Senior Lender as security for the Funding Loan pursuant to an Assignment of Security Instrument dated as of the date hereof to be recorded in the Recording Office contemporaneously herewith. F. Subject to the terms and conditions of that certain Forward Loan Purchase Agreement (the "Forward Loan Purchase Agreement") dated as of the Effective Date among Borrower, Bank of America, N.A., a national banking association ("Initial Funding Lender"), and Barings Affordable Housing Mortgage Fund 111 LLC, a Delaware limited liability company ("Permanent Funding Lender"), Initial Funding Lender shall subsequently assign and deliver the documents comprising the Funding Loan to the Permanent Funding Lender and, in connection therewith, the Senior Note (as defined herein) and the Senior Mortgage will be amended and restated, and thereafter assigned to the Fiscal Agent ("Conversion"). G. Upon Conversion, the Funding Lender shall have the right to amend and restate the Senior Note and the Senior Mortgage, and the right to amend, waive, postpone, extend, renew, replace, reduce or otherwise modify any provision of any of the Senior Loan Documents (as defined herein), without notice to or the consent or joinder of the Subordinate Lender. Notwithstanding the foregoing, if the Funding Lender amends and restates the Senior Note or Senior Mortgage to increase the amount of the Senior Indebtedness, Funding Lender shall not do so without notice to or the consent or joinder of the Subordinate Lender. H. The execution and delivery of this Agreement is a condition of Funding Lender's consenting to Subordinate Lender's making of the Subordinate Loan and Borrower's granting of the Subordinate Mortgage. AGREEMENT NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: 1. Definitions. The following terms, when used in this Agreement (including, as appropriate, when used in the above recitals), will have the following meanings. The terms "Condemnation," "Imposition Reserve Deposits," "Impositions," "Leases," "Rents" and "Restoration," as well as any term used in this Agreement and not otherwise defined in this Agreement, will have the meanings given to those terns in the Senior Loan Agreement. "Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency, composition, restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or custodianship action or proceeding under any federal or state law with respect to Borrower, any Subordination Agreement (City Loan) Page 2 Book32867/Page494 CFN#20210883166 Page 2 of 21 guarantor of any of the Senior Indebtedness, any of their respective properties, or any of their respective partners, members, officers, directors, or shareholders. "Borrower" means all persons or entities identified as "Borrower" in the first Recital of this Agreement, together with their successors and assigns, and any other person or entity who acquires title to the Mortgaged Property after the date of this Agreement; provided that the tern "Borrower" will not include Senior Lender or Funding Lender if Senior Lender or Funding Lender acquires title to the Mortgaged Property. "Casualty" means the occurrence of damage to or loss of all or any portion of the Mortgaged Property by fire or other casualty. "Construction Disbursement Agreement" means the Construction Disbursement Agreement dated as of the Effective Date by and between the Borrower and Initial Funding Lender. "Continuing Covenant Agreement" means the Continuing Covenant Agreement to be executed by Borrower and Permanent Funding Lender at Conversion. "Enforcement Action" means any of the following actions taken by or at the direction of Subordinate Lender: the acceleration of all or any part of the Subordinate Indebtedness, the advertising of or commencement of any foreclosure or trustee's sale proceedings, the exercise of any power of sale, the acceptance of a deed or assignment in lieu of foreclosure or sale, the collecting of Rents, the obtaining of or seeking of the appointment of a receiver, the seeking of default interest, the taking of possession or control of any of the Mortgaged Property, the commencement of any suit or other legal, administrative, or arbitration proceeding based upon the Subordinate Note or any other of the Subordinate Loan Documents, the exercising of any banker's lien or rights of set-off or recoupment, or the exercise of any other remedial action against Borrower, any other party liable for any of the Subordinate Indebtedness or obligated under any of the Subordinate Loan Documents, or the Mortgaged Property. "Enforcement Action Notice" means a Notice given from Subordinate Lender to Senior Lender and Funding Lender, following one or more Subordinate Mortgage Default(s) and the expiration of any applicable notice or cure periods, setting forth in reasonable detail the Subordinate Mortgage Default(s) and the Enforcement Actions proposed to be taken by Subordinate Lender. "Funding Lender" shall mean Initial Funding Lender prior to Conversion and Permanent Funding Lender from and after Conversion, and any successor holder of the Governmental Note. "Funding Loan Agreement" means the Funding Loan Agreement dated as of November 1, 2021 among Funding Lender, Governmental Lender and Senior Lender. "Governmental Note" means the Multifamily Note delivered by the Governmental Lender evidencing the Funding Loan. "Lien" means any lien, encumbrance, estate or other interest, recorded against or secured by the Mortgaged Property. "Loss Proceeds" means all monies received or to be received under any insurance policy, from any condemning authority, or from any other source, as a result of any Condemnation or Casualty. Subordination Agreement (City Loan) Page 3 Book32867/Page495 CFN#20210883166 Page 3 of 21 "Notice" means all notices, requests, demands, consents, approvals or other communication pursuant to this Agreement provided in accordance with the provisions of Section 10. "Regulatory Agreement" means, collectively, that certain (i) Rental Regulatory Agreement, and (ii) Declaration of Restrictive Covenants, each by and between the Borrower and the Subordinate Lender pertaining to the operation of the Property. "Senior Indebtedness" means the "Indebtedness" of Borrower as evidenced by the Senior Loan Documents. "Senior Lender" is defined above. When any other person or entity becomes the legal holder of the Senior Note, such other person or entity will automatically become Senior Lender. "Senior Loan Agreement" collectively means, prior to Conversion, the Construction Phase Project Loan Agreement and the Construction Disbursement Agreement. From and after Conversion, "Senior Loan Agreement" means the Project Loan Agreement and/or the Continuing Covenant Agreement. "Senior Loan Documents" collectively means prior to Conversion, the "Construction Phase Project Loan Documents" as defined in the Construction Disbursement Agreement. From and after Conversion, "Senior Loan Documents" shall mean the "Financing Documents" as defined in the Continuing Covenant Agreement, as such documents may be amended. "Senior Mortgage Default" means any act, failure to act, event, condition, or occurrence which constitutes, or which with the giving of Notice or the passage of time, or both, would constitute, an "Event of Default" as defined in the Senior Loan Documents. "Senior Note" means, prior to Conversion, the Construction Phase Project Note dated as of the Effective Date by Borrower in favor of Governmental Lender and assigned to Initial Funding Lender. From and after Conversion, "Senior Note" means the Project Note as defined in the Continuing Covenant Agreement. "Subordinate Indebtedness" means all sums evidenced or secured or guaranteed by, or otherwise due and payable to Subordinate Lender pursuant to, the Subordinate Loan Documents. "Subordinate Lender" means the person or entity named as such in the first paragraph of this Agreement and any other person or entity who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Documents" means the Subordinate Mortgage, the Subordinate Note, the Subordinate Loan Agreement, the Regulatory Agreement and all other documents at any time evidencing, securing, guaranteeing, or otherwise delivered in connection with the Subordinate Indebtedness, as such documents may be amended. "Subordinate Mortgage Default" means any act, failure to act, event, condition, or occurrence which allows (but for any contrary provision of this Agreement) Subordinate Lender to take an Enforcement Action. "Subordinate Note" means the promissory note or other evidence of the Subordinate Indebtedness and any replacement of the Subordinate Note. Subordination Agreement (City Loan) Page 4 Book32867/Page496 CFN#20210883166 Page 4 of 21 "Surplus Cash" means, with respect to any period, any revenues of Borrower remaining after paying, or setting aside funds for paying, all the following: (i) All sums due or currently required to be paid under the Senior Loan Documents, including any reserves and Imposition Reserve Deposits. All reasonable operating expenses of the Mortgaged Property, including real estate taxes, insurance premiums, utilities, building maintenance, painting and repairs, management fees, payroll, administrative expenses, legal expenses and audit expenses (excluding any developer fees payable with respect to the Mortgaged Property). 2. Subordinate Lender's Representations and Warranties. (a) Subordinate Lender represents and warrants that each of the following is true as of the date of this Agreement: (i) Subordinate Lender is now the owner and holder of the Subordinate Loan Documents. (ii) No Subordinate Mortgage Default has occurred and is continuing. (iii) The current unpaid principal balance of the Subordinate Indebtedness is $1,000,000. (iv) No scheduled payments under the Subordinate Note have been prepaid. (b) Without the prior written consent of Senior Lender, Subordinate Lender will not do any of the following: (i) Pledge, assign, transfer, convey, or sell any interest in the Subordinate Indebtedness or any of the Subordinate Loan Documents. (ii) Take any action which has the effect of increasing the Subordinate Indebtedness, except to cure a Senior Mortgage Default as contemplated under Section 5(a) of this Agreement. (iii) Accept any prepayment of the Subordinate Indebtedness. 3. Terms of Subordination. (a) Agreement to Subordinate. The Subordinate Indebtedness is and will at all times continue to be subject and subordinate in right of payment to the prior payment in full of the Senior Indebtedness. Each of the Subordinate Loan Documents is, and will at all times remain, subject and subordinate in all respects to the liens, terms, covenants, conditions, operations, and effects of each of the Senior Loan Documents. Subordination Agreement (City Loan) Page 5 Book32867/Page497 CFN#20210883166 Page 5 of 21 (b) Subordination of Subrogation Rights. If Subordinate Lender, by indemnification, subrogation or otherwise, acquires any Lien on any of the Mortgaged Property, then that Lien will be fully subject and subordinate to the receipt by Senior Lender of payment in full of the Senior Indebtedness, and to the Senior Loan Documents, to the same extent as the Subordinate Indebtedness and the Subordinate Loan Documents are subordinate pursuant to this Agreement. (c) Payments Before Senior Loan Default. Until the occurrence of a Senior Mortgage Default, Subordinate Lender will be entitled to retain for its own account all payments of the principal of and interest on the Subordinate Indebtedness pursuant to the Subordinate Loan Documents; provided that Subordinate Lender expressly agrees that it will not accept any such payment that is made more than 10 days in advance of its due date and provided further that Subordinate Lender will not accept any payment in an amount that exceeds 75% of then available Surplus Cash. (d) Payments After Senior Loan Default or Bankruptcy. (i) Immediately upon Subordinate Lender's receipt of Notice or actual knowledge of a Senior Mortgage Default, Subordinate Lender will not accept any payments of the Subordinate Indebtedness, and the provisions of Section 3(d) of this Agreement will apply. (ii) If Subordinate Lender receives any of the following, whether voluntarily or by action of law, after a Senior Mortgage Default of which Subordinate Lender has actual knowledge (or is deemed to have actual knowledge as provided in Section 4(c)) or has been given Notice, such will be received and held in trust for Senior Lender: (A) Any payment, property, or asset of any kind or in any form in connection with the Subordinate Indebtedness. (B) Any proceeds from any Enforcement Action. (C) Any payment, property, or asset in or in connection with any Bankruptcy Proceeding. (iii) Subordinate Lender will promptly remit, in kind and properly endorsed as necessary, all such payments, properties, and assets described in Section 3(d)(ii) to Senior Lender. Senior Lender will apply any payment, asset, or property so received from Subordinate Lender to the Senior Indebtedness in such order, amount (with respect to any asset or property other than immediately available funds), and manner as Senior Lender determines in its sole and absolute discretion. (e) Bankruptcy. Without the prior written consent of Senior Lender, Subordinate Lender will not commence, or join with any other creditor in commencing, any Bankruptcy Proceeding. In the event of a Bankruptcy Proceeding, Subordinate Lender will not vote affirmatively in favor of any plan of reorganization or liquidation unless Senior Lender has also voted affirmatively in favor of such plan. Subordination Agreement (City Loan) Page 6 Book32867/Page498 CFN#20210883166 Page 6 of 21 4. Default Under Subordinate Loan Documents. (a) Notice of Subordinate Loan Default and Cure Rights. (i) Subordinate Lender will deliver to Senior Lender and Funding Lender a copy of each Notice delivered by Subordinate Lender pursuant to the Subordinate Loan Documents within 5 Business Days of sending such Notice to Borrower. Neither giving nor failing to give a Notice to Senior Lender or Funding Lender pursuant to this Section 4(a) will affect the validity of any Notice given by Subordinate Lender to Borrower. (ii) For a period of 90 days following delivery to Senior Lender of an Enforcement Action Notice, Senior Lender will have the right, but not the obligation, to cure any Subordinate Mortgage Default. However, if such Subordinate Mortgage Default is a non -monetary default and is not capable of being cured within such 90-day period and Senior Lender has commenced and is diligently pursuing such cure to completion, Senior Lender will have such additional period of time as may be required to cure such Subordinate Mortgage Default or until such time, if ever, as Senior Lender takes either of the following actions: (A) Discontinues its pursuit of any cure. (B) Delivers to Subordinate Lender Senior Lender's written consent to the Enforcement Action described in the Enforcement Action Notice. (iii) Senior Lender will not be subrogated to the rights of Subordinate Lender under the Subordinate Loan Documents as a result of Senior Lender having cured any Subordinate Mortgage Default. (iv) Subordinate Lender acknowledges that all amounts advanced or expended by Senior Lender in accordance with the Senior Loan Documents or to cure a Subordinate Mortgage Default will be added to and become a part of the Senior Indebtedness and will be secured by the lien of the Senior Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. (i) In the event of a Subordinate Mortgage Default, Subordinate Lender will not commence any Enforcement Action until 90 days after Subordinate Lender has delivered to Senior Lender and Funding Lender an Enforcement Action Notice. During such 90-day period or such longer period as provided in Section 4(a), Subordinate Lender will be entitled to seek specific performance to enforce covenants and agreements of Borrower relating to income, rent, or affordability restrictions contained in the Regulatory Agreement, subject to Senior Lender's right to cure a Subordinate Mortgage Default set forth in Section 4(a). (ii) Subordinate Lender may not commence any other Enforcement Action, including any foreclosure action under the Subordinate Loan Documents, until the earlier of: (A) The expiration of such 90-day period or such longer period as provided in Section 4(a). Subordination Agreement (City Loan) Page 7 Book32867/Page499 CFN#20210883166 Page 7 of 21 (B) The delivery by Senior Lender to Subordinate Lender of Senior Lender's written consent to such Enforcement Action by Subordinate Lender. (iii) Subordinate Lender acknowledges that Senior Lender may grant or refuse consent to Subordinate Lender's Enforcement Action in Senior Lender's reasonable discretion. At the expiration of such 90-day period or such longer period as provided in Section 4(a) and, subject to Senior Lender's right to cure set forth in Section 4(a), Subordinate Lender may commence any Enforcement Action. (iv) Senior Lender may pursue all rights and remedies available to it under the Senior Loan Documents, at law, or in equity, regardless of any Enforcement Action Notice or Enforcement Action by Subordinate Lender. No action or failure to act on the part of Senior Lender in the event of a Subordinate Mortgage Default or commencement of an Enforcement Action will constitute a waiver on the part of Senior Lender of any provision of the Senior Loan Documcnts or this Agreement. (c) Cross Default. Subordinate Lender acknowledges that a Subordinate Mortgage Default constitutes a Senior Mortgage Default. Accordingly, upon the occurrence of a Subordinate Mortgage Default, Subordinate Lender will be deemed to have actual knowledge of a Senior Mortgage Default. If Subordinate Lender notifies Senior Lender and Funding Lender in writing that any Subordinate Loan Default of which Senior Lender has received Notice has been cured or waived, as determined by Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Mortgaged Property pursuant to its rights under the Senior Loan Documents, any Senior Loan Default under the Senior Loan Documents arising solely from such Subordinate Loan Default will be deemed cured, and the Senior Loan will be reinstated. 5. Default Under Senior Loan Documents. (a) Notice of Senior Loan Default and Cure Rights. (i) Senior Lender or Funding Lender will deliver to Subordinate Lender a copy of any Notice sent by Senior Lender or Funding Lender to Borrower of a Senior Mortgage Default within 5 Business Days of sending such Notice to Borrower. Failure of Senior Lender or Funding Lender to send Notice to Subordinate Lender will not prevent the exercise of Senior Lender's rights and remedies under the Senior Loan Documents. (ii) Subordinate Lender will have the right, but not the obligation, to cure any monetary Senior Mortgage Default within 30 days following the date of such Notice. During such 30-day period Senior Lender will be entitled to continue to pursue its remedies under the Senior Loan Documents. (iii) Subordinate Lender may, within 90 days after the date of the Notice, cure a non - monetary Senior Mortgage Default if during such 90-day period, Subordinate Lender keeps current all payments required under the Senior Loan Documents. If such a non - monetary Senior Mortgage Default creates an unacceptable level of risk relative to the Mortgaged Property, or Senior Lender's secured position relative to the Mortgaged Property, as determined by Senior Lender in its sole discretion, then during such 90-day period Senior Lender may exercise all available rights and Subordination Agreement (City Loan) Page 8 Book32867/Page500 CFN#20210883166 Page 8 of 21 remedies to protect and preserve the Mortgaged Property and the Rents, revenues and other proceeds from the Mortgaged Property. (iv) All amounts paid by Subordinate Lender to Senior Lender to cure a Senior Mortgage Default will be deemed to have been advanced by Subordinate Lender pursuant to, and will be secured by the lien of, thc Subordinate Mortgage. Notwithstanding anything in this Section 5(a) to the contrary, Subordinate Lender's right to cure any Senior Mortgage Default will terminate immediately upon the occurrence of any Bankruptcy Proceeding. (b) Release of Mortgaged Property. (i) Subordinate Lender consents to and authorizes any future release by Senior Lender of all or any portion of the Mortgaged Property from thc lien, operation, and effect of the Senior Loan Documents. Subordinate Lender waives to the fullest extent permitted by law, all equitable or other rights it may have in connection with the release of all or any portion of the Mortgaged Property, including any right to require Senior Lender to do any of the following: (A) To conduct a separate sale of any portion of the Mortgaged Property. (B) To exhaust its remedies against all or any portion of the Mortgaged Property or any combination of portions of the Mortgaged Property or any other collateral for the Senior Indebtedness. (C) To proceed against Borrower, any other party that may be liable for any of the Senior Indebtedness (including any general partner of Borrower if Borrower is a partnership), all or any portion of the Mortgaged Property or combination of portions of the Mortgaged Property or any other collateral, before proceeding against all or such portions or combination of portions of the Mortgaged Property as Senior Lender determines. (ii) Subordinate Lender consents to and authorizes, at the option of Senior Lender, the sale, either separately or together, of all or any portion of the Mortgaged Property. Subordinate Lender acknowledges that without Notice to Subordinate Lender and without affecting any of the provisions of this Agreement, Senior Lender may do any of the following: (A) Extend the time for or waive any payment or performance under the Senior Loan Documents. (B) Modify or amend in any respect any provision of the Senior Loan Documents. (C) Modify, exchange, surrender, release, and otherwise deal with any additional collateral for the Senior Indebtedness. 6. Conflicts. If there is any conflict or inconsistency between the terms of the Subordinate Loan Documents and the tenns of this Agreement, then the terms of this Agreement will control. Borrower acknowledges that the terms and provisions of this Agreement will not, and will not be deemed to do any of the following: Subordination Agreement (City Loan) Page 9 Book32867/Page501 CFN#20210883166 Page 9 of 21 (a) Extend Borrower's time to cure any Senior Loan Default or Subordinate Loan Default. (b) Give Borrower the right to receive notice of any Senior Loan Default or Subordinate Loan Default, other than that, if any, provided, respectively under the Senior Loan Documents of the Subordinate Loan Documents. (c) Create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 7. Rights and Obligations of Subordinate Lender Under the Subordinate Loan Documents and of Senior Lender under the Senior Loan Documents. (a) Insurance. (i) All requirements pertaining to insurance under the Subordinate Loan Documents (including requirements relating to amounts and types of coverages, deductibles and special endorsements) will be deemed satisfied if Borrower complies with the insurance requirements under the Senior Loan Documents and of Senior Lender and Funding Lender. (ii) All original policies of insurance required pursuant to the Senior Loan Documents will be held by Senior Lender or Funding Lender. (iii) Nothing in this Section 7(a) will preclude Subordinate Lender from requiring that it be named as a mortgagee and loss payee, as its interest may appear, under all policies of property damage insurance maintained by Borrower with respect to the Mortgaged Property, provided such action does not affect the priority of payment of Loss Proceeds, or that Subordinate Lender be named as an additional insured under all policies of liability insurance maintained by Borrower with respect to the Mortgaged Property. (b) Condemnation or Casualty. In the event of a Condemnation or a Casualty, the following provisions will apply: (i) Subject to Section 9 of this Agreement, the rights of Subordinate Lender (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Condemnation or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Condemnation or a Casualty, will be and remain subordinate in all respects to Senior Lender's rights under the Senior Loan Documents, and Subordinate Lender will be bound by any settlement or adjustment of a claim resulting from a Condemnation or a Casualty made by Senior Lender. (ii) All Loss Proceeds will be applied either to payment of the costs and expenses of Restoration or to payment on account of the Senior Indebtedness, as and in the manner determined by Senior Lender in its sole discretion; provided however, Senior Lender agrees to consult with Subordinate Lender in determining the application of Casualty proceeds. In the event of any disagreement between Senior Subordination Agreement (City Loan) Page 10 Book32867/Page502 CFN#20210883166 Page 10 of 21 Lender and Subordinate Lender over the application of Casualty proceeds, the decision of Senior Lender, in its sole discretion, will prevail. (iii) If Senior Lender or Funding Lender holds Loss Proceeds, or monitors the disbursement of Loss Proceeds, Subordinate Lender will not do so. Nothing contained in this Agreement will be deemed to require Senior Lender to act for or on behalf of Subordinate Lender in connection with any Restoration or to hold or monitor any Loss Proceeds in trust for or otherwise on behalf of Subordinate Lender, and all or any Loss Proceeds may be commingled with any funds of Senior Lender. (iv) if Senior Lender elects to apply Loss Proceeds to payment on account of the Senior Indebtedness, and if the application of such Loss Proceeds results in the payment in full of the entire Senior Indebtedness, any remaining Loss Proceeds held by Senior Lender will be paid to Subordinate Lender unless another party has asserted a claim to the remaining Loss Proceeds. (c) Modification of Subordinate Loan Documents. Subordinate Lender agrees that, until the principal of, interest on and all other amounts payable under the Senior Loan Documents have been paid in full, it will not, without the prior written consent of Senior Lender, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the tcrm of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terns in a manner that creates an adverse effect upon Senior Lender or Funding Lender under the Senior Loan Documents. If Subordinate Lender either (i) amends the Subordinate Loan Documents in the manner set forth above or (ii) assigns the Subordinate Loan without Senior Lender's consent then such amendment or assignment will be void ab initio and of no effect whatsoever. (d) Modification of Senior Loan Documents. Senior Lender may amend, waive, postpone, extend, renew, replace, reduce or otherwise modify any provisions of the Senior Loan Documents without the necessity of obtaining the consent of or providing Notice to Subordinate Lender, and without affecting any of the provisions of this Agreement. Notwithstanding the foregoing, Senior Lender may not modify any provision of the Senior Loan Documents that increases the Senior Indebtedness without the consent or joinder of the Subordinate Lender, except for increases in the Senior Indebtedness that result from advances made by Senior Lender to protect the security or lien priority of Senior Lender under the Senior Loan Documents or to cure defaults under the Subordinate Loan Documents. (e) Commercial or Retail Leases. If requested, Subordinate Lender will enter into attornment and non -disturbance agreements with all tenants under commercial or retail Leases, if any, to whom Senior Lender has granted attornment and non -disturbance, on the same terms and conditions given by Senior Lender. (f) Consent Rights. Whenever the Subordinate Loan Documents give Subordinate Lender approval or consent rights with respect to (i) change orders, (ii) changes to the budget for the construction of the Improvements (iii) changes to the plans and specifications for the Improvements, (iv) changes the Architecture Contract (as defined in the Construction Disbursement Agreement), or (v) changes to the Construction Contract (as defined in the Construction Disbursement Agreement), and a right of approval or consent for the same or Subordination Agreement (City Loan) Page 11 Book32867/Page503 CFN#20210883166 Page 11 of 21 (g) substantially the same matter is also granted to Senior Lender or Funding Lender pursuant to the Senior Loan Documents or otherwise, Senior Lender's or Funding Lender's approval or consent or failure to approve or consent will be binding on Subordinate Lender. None of the other provisions of Section 7 are intended to be in any way in limitation of the provisions of this Section 7(f). Escrows. Except as provided in this Section 7(g), and regardless of any contrary provision in the Subordinate Loan Documents, Subordinate Lender will not collect any escrows for any cost or expense related to the Mortgaged Property or for any portion of the Subordinate Indebtedness. However, if Senior Lender or Funding Lender is not collecting escrow payments for one or more Impositions, Subordinate Lender may collect escrow payments for such impositions; provided that all payments so collected by Subordinate Lender will be held in trust by Subordinate Lender to be applied only to the payment of such Impositions. (h) Certification. Within 10 days after request by Senior Lendcr or Funding Lendcr, Subordinate Lender will furnish Senior Lender and Funding Lender with a statement, duly acknowledged and certified setting forth the then -current amount and terms of the Subordinate Indebtedness, confirming that there exists no default under the Subordinate Loan Documents (or describing any default that does exist), and certifying to such other information with respect to the Subordinate Indebtedness as Senior Lender may request. 8. Refinancing. Subordinate Lender agrees that its agreement to subordinate under this Agreement will extend to any new mortgage debt which is for the purpose of refinancing all or any part of the Senior Indebtedness (including reasonable and necessary costs associated with the closing and/or the refinancing, and any reasonable increase in proceeds for rehabilitation in the context of a preservation transaction). All terms and covenants of this Agreement will inure to the benefit of any holder of any such refinanced debt, and all references to the Senior Loan Documents and Senior Lender will mean, respectively, the refinance loan documents and the holder of such refinanced debt. 9. Governmental Powers. Nothing in this Agreement is intended, nor will it be construed, to in any way limit the exercise by Subordinate Lender of its governmental powers (including police, regulatory and taxing powers) with respect to Borrower or the Mortgaged Property to the same extent as if it were not a party to this Agreement or the transactions contemplated by this Agreement. 10. Notices. (a) Any Notice required or permitted to be given pursuant to this Agreement will be in writing and will be deemed to have been duly and sufficiently given if (i) personally delivered with proof of delivery (any Notice so delivered will be deemed to have been received at the time so delivered), or (ii) sent by a national overnight courier service (such as FedEx) designating earliest available delivery (any Notice so delivered will be deemed to have been received on the next Business Day following receipt by the courier), or (iii) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any Notice so sent will be deemed to have been received on the date of delivery as confirmed by the return receipt), addressed to the respective parties as follows: Notices intended for Senior Lender will be addressed to: Subordination Agreement (City Loan) Page 12 Book32867/Page504 CFN#20210883166 Page 12 of 21 The Bank of New York Mellon Trust Company, N.A. 4655 Salisbury Road, Suite 300 Jacksonville, Florida 32256 and a copy to (for informational purposes only): Akerman LLP 50 N. Laura Street, Suite 3100, Jacksonville, FL 32202 Attention: Peter Dame, Esq. Phone: (904) 598-8676 Email: peter.dame@akennan.com Notices intended for Subordinate Lender will be addressed to: City of Miami Department of Housing and Community Development One Flagler Building 14 Northeast 1" 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 Notices intended for Funding Lender will be addressed to: Bank of America, N.A. 101 East Kennedy Blvd., 6`'' Floor P.O. Box 31590 Tampa, Florida 33602 Mail Stop: Attention: CREB Loan Administration With a copy to: Holland & Knight LLP 31 West 52nd Street New York, New York 10019, Attention: Kathleen M. Furey, Esq. After Conversion: Barings Affordable Housing Mortgage Fund III LLC, ISAOA, ATIMA Subordination Agreement (City Loan) Page 13 Book32867/Page505 CFN#20210883166 Page 13 of 21 c/o Barings Multifamily Capital LLC 5800 Tennyson Parkway Suite 200, Plano, TX 75024 Attention: Finance Group Loan Servicing With copies to: Barings LLC, its Investment Adviser One Financial Plaza Hartford, CT 06103 Attention: Legal Department Mortgage Loan No. LAF 1 18 and Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attention Brian C. Eades, Esq. (b) Any party, by Notice given pursuant to this Section 10, may change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses, for its Notices, but Notice of a change of address will only be effective upon receipt. Neither party will refuse or reject delivery of any Notice given in accordance with this Section 10. 11. Miscellaneous Provisions. (a) Assignments/Successors. This Agreement will be binding upon and will inure to the benefit of the respective legal successors and permitted assigns of the parties to this Agreement. Except for Funding Lender, no other party will be entitled to any benefits under this Agreement, whether as a third -party beneficiary or otherwise. This Agreement may be assigned at any time by Senior Lender to any subsequent holder of the Senior Note. (b) No Partnership or Joint Venture. Nothing in this Agreement or in any of the Senior Loan Documents or Subordinate Loan Documents will be deemed to constitute Senior Lender or Funding Lender as a joint venturer or partner of Subordinate Lender. (c) Further Assurances. Upon Notice from Senior Lender or Funding Lender, Subordinate Lender will execute and deliver such additional instruments and documents, and will take such actions, as are required by Senior Lender or Funding Lender to further evidence or implement the provisions and intent of this Agreement. (d) Amendment. This Agreement may be amended, changed, modified, altered or terminated only by a written instrument signed by the parties to this Agreement or their successors or assigns. (e) Governing Law. This Agreement will be governed by the laws of the State in which the Land is located. Subordination Agreement (City Loan) Page 14 Book32867/Page506 CFN#20210883166 Page 14 of 21 (f) Severable Provisions. If any one or more of the provisions contained in this Agreement, or any application of any such provisions, is invalid, illegal, or unenforceable in any respect, the validity, legality, enforceability, and application of the remaining provisions contained in this Agreement will not in any way be affected or impaired. (g) Tenn. The tern of this Agreement will continence on the date of this Agreement and will continue until the earliest to occur of the following events: (i) The payment of all the Senior Indebtedness; provided that this Agreement will be reinstated in the event any payment on account of the Senior Indebtedness (whether by or on behalf of Borrower, as proceeds of security or enforcement of any right of set-off or otherwise) is for any reason repaid or returned to Borrower or its insolvent estate, or avoided, set aside or required to be paid to Borrower, a trustee, receiver or other similar party under any bankruptcy, insolvency, receivership or similar law. In such event, any or all of the Senior Indebtedness originally intended to be satisfied will be deemed to be reinstated and outstanding to the extent of any repayment, return, or other action, as if such payment on account of the Senior Indebtedness had not been made. (ii) The payment of all the Subordinate indebtedness other than by reason of payments which Subordinate Lender is obligated to remit to Senior Lender pursuant to this Agreement. (iii) The acquisition by Senior Lender or by a third -party purchaser of title to the Mortgaged Property pursuant to a foreclosure of, deed in lieu of foreclosure, or trustee's sale or other exercise of a power of sale or similar disposition under the Senior Mortgage. (iv) With the prior written consent of Senior Lender, without limiting the provisions of Section 4(b)(iv), the acquisition by Subordinate Lender of title to the Mortgaged Property subject to the Senior Mortgage pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale under) the Subordinate Mortgage. (h) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. (i) Entire Agreement. This Agreement represents the entire understanding and agreement between the parties regarding the matters addressed in this Agreement, and will supersede and cancel any prior agreements regarding such matters. (j) Authority. Each person executing this Agreement on behalf of a party to this Agreement represents and warrants that such person is duly and validly authorized to do so on behalf of such party with full right and authority to execute this Agrcemcnt and to bind such party with respect to all of its obligations under this Agreement. (k) No Waiver. No failure or delay on the part of any party to this Agreement in exercising any right, power, or remedy under this Agreement will operate as a waiver of such right, power, or remedy, nor will any single or partial exercise of any such right, power or remedy Subordination Agreement (City Loan) Page 15 Book32867/Page507 CFN#20210883166 Page 15 of 21 (I) (m) preclude any other or further exercise of such right, power, or remedy or the exercise of any other right, power or remedy under this Agreement. Remedies. Each party to this Agreement acknowledges that if any party fails to comply with its obligations under this Agreement, the other parties will have all rights available at law and in equity, including the right to obtain specific performance of the obligations of such defaulting party and injunctive relief. Funding Lender's Rights to Control. Notwithstanding anything herein to the contrary, pursuant to the Senior Mortgage and Section 6.03 of the Funding Loan Agreement, all acts, consents, approvals and undertakings of Senior Lender hereunder shall be solely at the written direction of the Funding Lender. The parties hereto acknowledge and agree that Funding Lender is a third party beneficiary of this Agreement, with full rights as such. (n) Notwithstanding anything herein to the contrary, Subordinate Lender agrees that in the event of the Senior Lender waives a Senior Mortgage Default and continues to make advances under the Senior Loan Documents, Subordinate Lender will continue to make advances of the Subordinate Loan notwithstanding such Senior Mortgage Default. [SIGNATURE AND ACKNOWLEDGMENT PAGES FOLLOW' 'REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] Subordination Agreement (City Loan) Page 16 Book32867/Page508 CFN#20210883166 Page 16 of 21 IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. STATE OF FLORIDA SENIOR LENDER: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. By: Nathan Turner, Vice President ACKNOWLEDGMENT } COUNTY OF DUVAL } SS: The foregoing instrument was acknowledged before me this 2nd day of November, 2021 by means of physical presence or ❑ online notarization, by Nathan Turner, Vice President of THE BANK OF NEW YORK MELLON TRUST COMPANY, a national association, on behalf of the association. He/she is personally known to me or has produced as identification. Subordination Agreement (City Loan) S-1 e: Steph hie Greene -Matthews Notary Public, State of Florida at large Book32867/Page509 CFN#20210883166 Page 17 of 21 SUBORDINATE LENDER: ATTEST: odd Hannon, Date: STATE OF FLORIDA } CITY OF MIAMI, a municipal corporation of the State of Florida By: Arthur Noriega V, pity Manager APPROVED AS TO FORM AND CORRECTNESS: By: is Mendez City Attorney ACKNOWLEDGMENT COUNTY OF MIAMI-DADE } SS: The foregoing instrument was cknowledged before me by means of sic yal presence or 0 online notarization this 5 day of LOteonit4% , 2021 by Arthur Noriega, as City Manager and on behalf of City of Miami, who is personally known to me or has produced as identification. Subordination Agreement (City Loan) S-2 Notary Public, State of Florida at large Book32867/Page510 CFN#20210883166 Page 18 of 21 CONSENT OF BORROWER pv,i4ktf Borrower acknowledges receipt of a copy of this Subordination Agreement, dated ®etober ! , 2021, by and between THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. and FLORIDA HOUSING FINANCE CORPORATION and consents to the agreement of the parties set forth in this Agreement. BRISAS DEL ESTE APARTMENTS, LLC, a Florida limited liability company By: Brisas del Este Apartments Manager, LLC, a Florida limited liability company, its manager By: Tony Del Pozzo Vice President ACKNOWLEDGMENT STATE OF FL� COUNTY OF _ The foregoing instrument was acknowledged before me by means of l�physical presence or 0 online notarization this 9 day of October, 2021 by Tony Del •o ., Jr., Vice President, on behalf of Brisas del Este Apartments Manager, LLC, the Manager of B s F del Este Apartments, LLC, who is personally known to me or has produced ,/ r; identification. Subordination Agreement (City Loan) Name (typed or printed): A utbiLczu GA.0 NOTARY PUBLIC in and for the State of Florida Residing at ditZo.4i fitaft�lR. My appointment expires: el(/o /2022 S-3 it Notary Public State of Florida Andrew Cohn My Commission GG 246271 t. -wa �i Expires 08/07/:. 22 c Book32867/Page511 CFN#20210883166 Page 19 of 21 EXHIBIT A LEGAL DESCRIPTION Parcel 1 - Leasehold: A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: BEGIN at the NE corner of said Tract "A"; thence S02°30'10"E along the East boundary line of said Tract "A", said line also being the West Right of Way line of NW 18th Avenue, for 297.08 feet; thence S87°42'42"W for 17.28 feet to a Point of Curvature of a circular curve to the left, concave to the Southeast; thence Southwesterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Point of Tangency; thence S37°25'O1"W for 21.88 feet; thence NO2°37'25"W for 87.95 feet; thence S87°55'01"W along a line parallel with and 241 feet South of the North boundary line of said Tract "A", for 115.28 feet; thence NO2°30'42"W for 241.00 feet; thence N87°55'01"E along the North boundary line of said Tract "A", for 178.42 feet to the Point of Beginning. Parcel 2 - Non -Exclusive Easement: Together with that certain non-exclusive easement for the benefit of Parcel 1 as set forth in that certain Access, Amenities and Parking Agreement and Easement by and among Three Round Tower A, LLC, a Florida limited liability company, Three Round Tower B and C, LLC, a Florida limited liability company, and Brisas Del Este Apartments, LLC, a Florida limited liability company recorded October 17, 2017 in Official Records Book 30720, Page 2455, as amended and restated by Amended and Restated Access, Amenities and Parking Agreement and Easement dated August 11, 2020, recorded August 17, 2020, in Official Records Book 32053, Page 1214, over, under and across the following described property: The South 360 feet of Tract "A", in FORMAN SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 90, Page 99, of the Public Records of Miami -Dade County, Florida. AN D A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Corner of said Tract "A"; thence S87°55'01"W along the North Boundary Line of said Tract "A", for 178.42 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence S02°30'42"E for 241.00 feet; thence N87°55'01"E along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence S02°37'25"E for 87.95 feet; thence S37°25'01"W for 95.77 feet; thence S03°16'42"E for 166.16 feet; thence S42°31'43"E for 60.25 feet; thence S87°48'07"W for 228.50 feet; thence NO2°28'42"W along the West Boundary Line of said Tract "A", for 615.28 feet to the NW Corner of said Tract "A"; thence N87°55'01"E along the North Boundary Line of said Tract "A", for 133.20 feet to the Point of Beginning. Subordination Agreement (City Loan) A-1 Book32867/Page512 CFN#20210883166 Page 20 of 21 OR BK 32867 PG 513 LAST PAGE AND A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Corner of said Tract "A"; thence S02°30'10"E along the East Boundary Line of said Tract "A", said line also being the West Right of Way Line of NW 18th Avenue, for 297.08 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence continue S02°30'10"E along said East Boundary Line of Tract "A", also being the West Right of Way Line of NW 18th Avenue, for 317.57 feet; thence S87°48'07"W for 83.37 feet; thence N42°31'43"W for 60.25 feet; thence NO3°16'42"W for 166.16 feet; thence N37°25'01"E for 117.65 feet to a Point of Curvature of a circular curve to the right, concave to the Southeast; thence Northeasterly along the arc of said curve, having for its elements a radius of 41.00 feet, a central angle of 50°17'42", for an arc distance of 35.99 feet to a Point of Tangency; thence N87°42'42"E for 17.28 feet to the Point of Beginning. Parcel 3 - Non -Exclusive Easement: Together with that certain non-exclusive easement for the benefit of Parcel 1 as set forth in that certain Easement Agreement by and between Three Round Towers B and C, LLC, a Florida limited liability company and Brisas Del Este Phase Two, LLC, a Florida limited liability company, dated August 11, 2020, recorded August 17, 2020, in Official Records Book 32053, Page 1232, as amended by that certain Amended and Restated Easement and Sublease Agreement by and among Three Round Towers B and C, LLC, a Florida limited liability company, Brisas Del Este Phase Two, LLC, a Florida limited liability company, and Brisas Del Este Apartments, LLC, a Florida limited liability company, to be recorded in the Public Records of Miami -Dade County, Florida, over and across the following described property: A portion of Tract "A" of "FORMAN SUBDIVISION", according to the Plat thereof, as recorded in Plat Book 90, at Page 99, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: COMMENCE at the NE Corner of said Tract "A"; thence S87°55'01"W along the North Boundary Line of said Tract "A", for 178.42 feet to the POINT OF BEGINNING of the parcel of land hereinafter described; thence S02°30'42"E for 241.00 feet; thence N87°55'01"E along a line parallel with and 241 feet South of the North Boundary Line of said Tract "A", for 115.28 feet; thence S02°37'25"E for 87.95 feet; thence S37°25'01"W for 95.77 feet; thence S03°16'42"E for 166.16 feet; thence S42°31'43"E for 60.25 feet; thence S87°48'07"W for 228.50 feet; thence NO2°28'42"W along the West Boundary Line of said Tract "A", for 615.28 feet to the NW Corner of said Tract "A"; thence N87°55'01"E along the North Boundary Line of said Tract "A", for 133.20 feet to the Point of Beginning. Subordination Agreement (City Loan) A-2 Book32867/Page513 CFN#20210883166 Page 21 of 21