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HomeMy WebLinkAbout26278AGREEMENT INFORMATION AGREEMENT NUMBER 26278 NAME/TYPE OF AGREEMENT GALLERY AT LUMMUS PARC, LLC & MIAMI-DADE COUNTY DESCRIPTION MORTGAGE SUBORDINATION AGREEMENT/LOAN TO FINANCE PORTION OF COSTS OF CONSTRUCTION/MATTER ID: 24-2614 #15 EFFECTIVE DATE ATTESTED BY TODD B. HANNON ATTESTED DATE 8/31/2026 DATE RECEIVED FROM ISSUING DEPT. 9/1/2026 NOTE atfi.Ac6 Prepared by and After recording, return to: Miami -Dade County Department of Housing and Community Development 701 NW 15t Court, Suite 1400 Miami, Florida 33136 Attention: Director MORTGAGE SUBORDINATION AGREEMENT MIAMI-DADE COUNTY CITY OF MIAMI AND GALLERY AT LUMMUS PARC, LLC Dated as of: Location: , 2026 Miami -Dade County, Florida Mortgage Subordination Agreement MORTGAGE SUBORDINATION AGREEMENT THIS MORTGAGE SUBORDINATION AGREEMENT (this "Agreement") is made as of the day of , 2026, among CITY OF MIAMI, Florida municipal corporation, and its successors and/or assigns (collectively, the "Subordinate Mortgagee"), MIAMI-DADE COUNTY, a political subdivision of the State of Florida, and its successors and/or assigns (the "Senior Mortgagee"), and GALLERY AT LUMMUS PARC, LLC, a Florida limited liability company (the "Mortgagor"). RECITALS WHEREAS, the Senior Mortgagee has agreed to make a loan to the Mortgagor in the principal amount of up to Five Million Dollars ($5,000,000) (the "Senior Debt"), the proceeds of which shall be used to provide funds to finance a portion of the costs of the construction of 214 residential units (the "Project"), generally known as The Gallery at Lummus Parc located in the City of Miami, Miami -Dade County, Florida and more particularly described on Schedule A attached hereto (the "Premises"); and WHEREAS, the Senior Debt shall be evidenced by a Promissory Note dated as of the date hereof in the principal sum of Five Million Dollars ($5,000,000) (as may be modified, amended or replaced from time to time, the "Senior Note"), and secured by that certain Amended and Restated Leasehold Mortgage and Security Agreement dated as of the date hereof (as may be modified, amended or replaced from time to time, the "Senior Mortgage"); and WHEREAS, the City made a loan to the Mortgagor in the aggregate principal amount of Three Million Dollars ($3,000,000) consisting of AMERICAN RESCUE PLAN ACT OF 2021 ("ARPA") FUNDS (the "Subordinate Debt") which shall is evidenced by a Promissory Note dated May 26, 2026 in the original principal amount of $3,000,000 (the "Subordinate Note"), and secured by that certain Leasehold Mortgage and Security Agreement and Assignment of Leases, Rents and Profits dated May 26, 2026 and recorded on June 1, 2026 in Official Records Book 35329;;Page 318, of the Public Records of Miami -Dade County, Florida (the "Subordinate T1VIort g a e" and � g g ); uI e i'' WHEREAS, the Subordinate Mortgagee has agreed that the Subordinate Mortgages and -Subordinate- Debt are and shall be junior to the rights of the Senior Mortgagee under the Senior -Mortgage and Senior Debt. :NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration each to the other in -hand paid, the receipt and sufficient of which are hereby acknowledged, the parties hereby covenant and agree that: 1. The Subordinate Mortgages and all other documents executed and/or delivered in connection therewith and the Subordinate Debt as now or hereafter held by Subordinate Mortgagee shall be subject and subordinate in all respects to the lienof the Senior Mortgage and all other documents executed and/or delivered in connection therewith (including, Mortgage Subordination Agreement without limitation that certain Rent Regulatory Agreement executed by Mortgagor and Senior Mortgagee, to be recorded in the Public Records of Miami -Dade County, Florida) and to the Senior Debt, regardless of when funds may be advanced thereunder or in relation thereto, and to any extensions, renewals, modifications, amendments and replacements thereof. For the avoidance of doubt, the lien, security interest, and rights of the Senior Mortgagee are and shall at all times be first -priority on all collateral and proceeds, whether now owned or hereafter acquired, and this subordination extends to all protective and future advances, interest (including default interest), fees, costs, expenses, swap/hedge obligations, and any amendments or restatements, provided that no such extension, renewal, modification, amendments, replacement, or restatement, by or of the Senior Lender, including, in particular but without limitation, any release of collateral or other property shall affect the rights of Subordinate Mortgagee under the Subordinate Loan Documents. 2. The Subordinate Mortgagee will not ask, demand, sue for, take or receive from the Mortgagor, by set-off or in any other manner, the whole or any part of any monies, principal or interest, now or hereafter owing under the Subordinate Debt, nor any security therefor, unless and until all Senior Debt shall have been fully paid with interest. Provided, however, unless and until' a default or event of default shall have occurred under the Senior Debt, that the Subordinate Mortgagee may receive and the Mortgagor may pay on the stated dates of payment thereof (but not through acceleration, demand or prepayment) the regular payments due under the Subordinate Debt if, at the time of making such payment and immediately after giving effect thereof, no default or event of default shall have occurred and be continuing under the terms of the Senior Mortgage. Any payment received by Subordinate Mortgagee in violation of this Agreement shall automatically be deemed received in trust for Senior Mortgagee without any further action by any party. 3. The Mortgagor covenants not to pay to the Subordinate Mortgagee the whole or any part of any monies, principal or interest, now or hereafter owing under the Subordinate Debt, nor any security therefor, in contravention of the terms of this Agreement. 4. In the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Mortgagor or the proceeds thereof, to creditors of the Mortgagor, or upon any indebtedness of the Mortgagor, by reason of the liquidation, dissolution or other winding up of the Mortgagor or the Mortgagor's business, or any sale, receivership, insolvency or bankruptcy proceeding, or assignment for the benefit of creditors, or any proceeding by or against the Mortgagor for any relief under any bankruptcy or insolvency law or laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, compositions or extensions, then and in any such event any payment or distribution of any kind or character, either in cash, securities, other property, all collateral proceeds (including insurance, condemnation awards, and business interruption), guaranty payments, avoidable transfers, or any proceeds of claims or causes of action, which shall be payable or deliverable upon or with respect to any or all of the Subordinate Debt shall be paid or delivered direct to the Senior Mortgagee for application on the Senior Debt, due or not due, of the Mortgagor to the Senior Mortgagee until such Senior Debt shall have first been fully paid and satisfied and said satisfaction shall have been acknowledged in writing by the Senior Mortgagee, after which time any such payment or distribution shall be applied to the Subordinate Debt. 2 Mortgage Subordination Agreement 5. Except as permitted under paragraph 2 hereof, should any payment or distribution or security or proceeds thereof be received by the Subordinate Mortgagee upon or with respect to any Subordinate Debt prior to the satisfaction of all of the Senior Debt, the Subordinate Mortgagee will forthwith deliver the same to the Senior Mortgagee in precisely the form received (except for the endorsement or assignment of the Subordinate Mortgagee where necessary), for application on any Senior Debt, due or not due, and until so delivered, the same shall be held in trust by the Subordinate Mortgagee as property of the Senior Mortgagee. In the event of the•failure of the Subordinate Mortgagee to make any such endorsement or assignment, the Senior Mortgagee, or any of its officers or employees, are hereby irrevocably authorized to do so. 6. The Subordinate Mortgagee will not assign or transfer to others any claim the Subordinate Mortgagee has or may have against the Mortgagor while any Senior Debt remains unpaid, unless such assignment or transfer is made expressly subject to this Agreement. 7. Any notice, request or demand, including, but not limited to, copies of all notices of default, reservation of rights, or enforcement actions under the Subordinate Mortgage, that are given or made under this Agreement or the Subordinate Mortgage shall be in writing and shall be hand delivered or sent by Federal Express or other reputable courier service or by postage prepaid registered or certified mail, return receipt requested and shall be deemed to have been given or refused (as indicated on the receipt) and addressed as follows: If to the Mortgagor: GALLERY AT LUMMUS PARC, LLC c/o The Related Group of Florida 2850 Tigertail Avenue, Suite 800 Miami, Florida 33133 Attention: Tony Del Pozzo with copies to: Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Museum Tower 150 W. Flagler Street, Suite 2200 Miami, Florida 33130 Attention: Brian J. McDonough, Esq. Bilzin Sumberg Baena Price & Axelrod LLP 1450 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attention: Terry Lovell, Esq. If to the Subordinate Mortgagee: City of Miami: 3 Mortgage Subordination Agreement Department of Housing and Community Development 444 S.W. 2nd Avenue Miami, FL 33130-1910 Attn: Victor Turner, Director With Copy To: George K. Wysong III City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 If to the Senior Mortgagee: Miami -Dade County 111 N.W. First Street, 29th Floor Miami, Florida 33128 Attention: County Mayor with copies to: and Miami -Dade County Attorney 's Office 111 N.W. First Street, Suite 2810 Miami, Florida 33128 Attention: Terrence A. Smith, Esq. Assistant County Attorney Miami -Dade County Housing and Community Development Department 701 NW 1st Court, 14th Floor Miami, Florida 33136 Attention: Director It being understood and agreed that each party will use reasonable efforts to send copies of any notices to the addresses marked "with a copy to" hereinabove set forth, provided, however, that failure to deliver such copy or copies shall have no consequence whatsoever as to any notice made to any of the parties hereto. Each party to this Agreement may designate a change of address by notice given, as herein provided, to the other parties fifteen (15) days prior to the date such change of address shall become effective. 4 Mortgage Subordination Agreement 8. All obligations and liabilities of the Mortgagor to the Senior Mortgagee under the Senior Debt shall be deemed to have been made or incurred in reliance upon this Agreement, and the Subordinate Mortgagee expressly waives all notice of the acceptance by the Senior Mortgagee of the subordination provisions of this Agreement, and the Subordinate Mortgagee expressly waives reliance by the Senior Mortgagee upon the subordination herein provided for. 9. No waiver shall be deemed to be made by the Senior Mortgagee of any of its rights hereunder unless the same shall be in writing signed on behalf of the Senior Mortgagee, and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall not impair the rights of the Senior Mortgagee or the obligations of the Subordinate Mortgagee to the Senior Mortgagee in any other respect at any other time. 10. This Agreement shall be immediately binding upon the parties hereto and their respective heirs, personal representatives, executors, administrators, successors and assigns. 11. This Agreement may only be modified, amended or changed by an agreement in writing signed by the parties hereto, and may only be released, discharged or satisfied of record by an agreement signed by the Senior Mortgagee. 12. The Subordinate Mortgagee covenants and agrees that until such time as the Senior Debt has been fully paid and satisfied, it will not modify, amend, restate, supplement, waive, forgive, refinance or replace the Subordinate Mortgage or Subordinate Debt without the prior written consent of the Senior Mortgagee, nor commence any action or proceeding for the enforcement of the collection of the Subordinate Debt or the foreclosure of the Subordinate Mortgages without providing at least sixty (60) days prior written notice to Senior Mortgagee. For a period of 60 days following delivery to Senior Mortgagee of such 60-day written notice, Senior Mortgagee 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 60-day period and Senior Mortgagee has commenced and is diligently pursuing such cure to completion, Senior Mortgagee will have such additional period of time as may be required to cure such Subordinate Mortgage default or until such time, as Senior Mortgagee takes either of the following actions: (A) Discontinues its pursuit of any cure. (B) Delivers to Subordinate Mortgagee Senior Mortgagee's written consent to the enforcement action described in the 60-day written notice. (C) At the expiration of the one hundred twenty days following Senior Mortgagee's receipt of the written notice. 13. Nothing contained in this Agreement is intended, nor will it be construed, to in any way restrict, limit or govern the rights of Subordinate Mortgagee under circumstances, including but not limited to (i) when acting in its capacity as a sovereign, (ii) when exercising its governmental powers (including police, regulatory and taxing powers), (iii) when exercising its 5 Mortgage Subordination Agreement powers to take by eminent domain, or (iv) when acting in its capacity as an enforcement authority with respect to Mortgagor or the Property to the same extent as if it were not a party to this Agreement. Therefore, nothing contained herein shall affect Subordinate Mortgagee's ability to lawfully (i) enforce any ordinances in the City of Miami, Florida, (ii) take property and give just compensation for said taking, (iii) to be compensated if the Property is taken by a sovereign other than the City of Miami, Florida or (iv) exercise any other rights and powers outside its role of Subordinate Mortgagee. Notwithstanding the foregoing, nothing in this Section shall impair or diminish the contractual obligations of Subordinate Mortgagee in its capacity as lender or otherwise affect the priority of the Senior Mortgage. 14. The provisions of this Agreement shall survive foreclosure of the Senior Mortgage, deed in lieu of foreclosure, acquisition of title by Senior Mortgagee, transfer of the Senior Loan Documents, bankruptcy proceedings, and any restructuring of the Senior Debt. 15. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 16. The undersigned hereby irrevocably and unconditionally waive any and all right to trial by jury in any action, suit or counterclaim arising in connection with, out of or otherwise relating to this Agreement. 17. This Agreement shall be construed, interpreted, enforced and governed by and in accordance with the laws of the State of Florida. If any provision shall be held prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating any other provision of this Agreement. Any dispute arising under or in connection with the Agreement or related to any matter which is the subject of the Agreement shall be subject to the exclusive jurisdiction of the state and/or federal courts located in Miami - Dade County, Florida. [Signature Pages Follow] 6 Mortgage Subordination Agreement IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. ATTEST: Juan Fernandez-Barquin, Clerk of the Court and Comptroller By: (Deputy Clerk Signature) Print Name: Date: STATE OF FLORIDA COUNTY OF MIAMI-DADE SENIOR MORTGAGEE: MIAMI-DADE COUNTY, a political subdivision of the State of Florida By: Name: Title: Approved by County Attorney as to form and legal sufficiency. By: Terrence Smith Assistant County Attorney The foregoing instrument was acknowledged before me by means of 0 physical presence or 0 online notarization, this day of , 2026, by , as , for Miami -Dade County, a political subdivision of the State of Florida. He is 0 personally known to me or 0 has produced as identification. Signature Printed Name Notary Public, State of Florida Mortgage Subordination Agreement [Signature Page to Mortgage Subordination Agreement] odd B. Han City Clerk STATE OF FLORIDA )SS: COUNTY OF MIAMI-DADE SUBORDINATE MORTGAGEE: CITY OF MIAMI, a Florida municipal corporation By: James Rey City Manager Sworn to and subscribed before me by [check one] (4 means of physical presence or ( ) remote audio-visual means, this 3 day of 2k — , 2026, by James Reyes, as City manager of City of Miami, a Florida municipal corporation. He is impersonally known to me or as identification. 0 has produced My Commission Expires: 4 Notary Public State of Florida i 4 Gabrielle Bravo I 4 1111 My Commission HH 835210 1 4 Expires 8/14/2030 I APPROVED AS TO LEGAL FORM AND CORRECTNESS: pti George K. Wysong III" ,sq. City Attorney Nota ' ublic Print or Stamp ' ame Commission No.: .4-1' 1Lkp-3 Mortgage Subordination Agreement [Signature Page to Mortgage Subordination Agreement] MORTGAGOR: GALLERY AT LUMMUS PARC, LLC a Florida limited liability company By: Gallery at Lummus Parc Manager, LLC a Florida limited liability company its manager STATE OF FLORIDA ss.: COUNTY OF MIAMI-DADE By: 9a(V Tony Del Pozzo, Vice President The foregoing instrument was acknpp,n,w�� ledged before me by means of physical presence or ❑ online notarization, this o2�)l" d y of Sa' , 2026 by Tony Del Pozzo, as Vice President o Gallery at Lummus Parc Manager, LLC, a Florida limited liability company, the manage f Gallery at Lummus Parc, LLC on behalf of the limited liability company, who is personally known to me or ❑ has produced a valid driver's license as identification. [Notary Seal] (Name typed, printed or stamped) (Title or rank) (Serial number, if any) Mortgage Subordination Agreement [Signature Page to Mortgage Subordination Agreement] SCHEDULE A LEGAL DESCRIPTION Leasehold Estate created by that certain Ground Lease dated February 28, 2023 and executed by Miami -Dade County, Florida, a Political Subdivision of the State of Florida, (Landlord), and Gallery at Lummus Parc, LLC, a Florida limited liability company, (Tenant), as amended, and as evidenced by that certain Memorandum of Lease recorded June 1, 2026 in Official Records Book 35329, Page 310, of the Public Records of Miami -Dade County, Florida, demising for a term of years, the following property, to wit: Lots 15, 16, 17 and 18, LESS the East 20.00 feet of said Lot 18, in Block 109-N, of A. L. Knowlton's MAP OF MIAMI, according to the Plat thereof recorded in Plat Book B, at Page 41, of the Public Records of Miami -Dade County, Florida; LESS that portion thereof deeded to the City of Miami by Warranty Deed dated November 4, 1939 recorded in Deed Book 2013, at Page 480 (Clerk's File No. M-51118), according to the Public Records of Miami -Dade County, Florida. Mortgage Subordination Agreement A - 1 au Al s. #I4895123 v2