Backup Documents 06/25/2024 Item #16D 1 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO 1 6 D 1
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
**NEW** ROUTING SLIP
Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the
exception of the Chairman's signature,draw a line through routing lines#1 through#2,complete the checklist,and forward to the County Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1. Carrie Kurutz Community and Human CK 6.17.24
Services
2. County Attorney Office— DPP County Attorney Office
)/ak t 6/27/2-Y
3. BCC Office Board of County
Commissioners Gil 177 A5151 C/2 7/2 V
4. Minutes and Records Clerk of Court's Office /'fia707Zk
4/49-7/94
Pij
PRIMARY CONTACT INFORMATIO
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the addressees
above,may need to contact staff for additional or missing information.
Name of Primary Staff Carrie Kurutz,Grant Coordinator 239.252.2644
Contact/ Department
Agenda Date Item was 6.25.24 Agenda Item Number INSERT AGENDA ITEM# 1 D./q
Approved by the BCC NOT MINUTE TRACK#
Type of Document MOU FOR U.S.TREASURY(SLFRF) Number of Original MOU(3 copies)
Attached FUNDED ACTIVITIES INCLUDING MOU Documents Attached
(MHP BEMBRIDGE,LLC);PROMISSORY
NOTE;DECLARATION OF RESTRICTIVE
COVENANTS; KEYBANK
SUBORDINATION AGRMNT
PO number or account Complete with PO#or Account#if there is
number if document is an associated cost such as recording cost or
to be recorded Fed EX Cost
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A" in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
I. Does the document require the chairman's original signature STAMP OK
2. Does the document need to be sent to another agency for additional signatures? If yes,
provide the Contact Information(Name;Agency;Address;Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be Yes
signed by the Chairman,with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's N/A
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the Yes
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's Yes
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip N/A
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of your deadlines!
8. The document was approved by the BCC on above date and all changes made during N/A is not
the meeting have been incorporated in the attached document. The County an option for
Attorney's Office has reviewed the changes,if applicable. this line.
9. Initials of attorney verifying that the attached document is the version approved by the N/A is not
BCC,all changes directed by the BCC have been made,and the document is ready for the an option for
Chairman's signature. this line.
**** Please send copy to Minutes & Records and one to Subrecipient. Thank you.
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Collier County Revolving !Affordable Workforce
Loan Fund for Local Housing(1075)
Housing Trust Fund
Loan Amount $893,826.24
Business-Name MHP Bembridge, LLC
UEI# !PVR4MA3 FA9J 7
EIN# 85-0589593
Term of the Loan 30 Years from Date of
Disbursement
MEMORANDUM OF UNDERSTANDING BETWEEN COLLIER COUNTY
AND
IMHP BEMBRIDGE,LLC
FOR DEVELOPMENT OF AFFORDABLE HOUSING
THIS MEMORANDUM OF UNDERSTANDING (this "MOU") is executed 25th day of June
2024, (to be effective as of!March 3, 2021, by and between Collier County, a political subdivision of the
State of Florida,("COUNTY")having its principal address at 3339 Tamiami Trail Fast,Naples,FL 34112,
and MHP Bembridge, LLC,a Florida limited liability company, ("DEVELOPER" and, together with the
COUNTY, collectively, the "Parties"), having its principal office at 777 Brickell Avenue, Suite 1300,
Miami, Florida 331311.
WHEREAS, the Board approved Fiscal Year 2022-23 Adopted Budget, establishing Affordable
Workforce Housing Fund (1075) to further affordable housing initiatives and to provide flexible funding
for affordable housing, which may be leveraged against public and private funding sources including
General Fund transfers used for Affordable Housing incentives and to assist various projects, sectors, and
varying income levels; and
WHEREAS, the COUNTY desires to establish a Revolving Loan Fund within the Affordable
Workforce Housing Fund(1075) dedicated for Collier County to mitigate the high cost of construction in.
Collier County and to further the goal of developing Affordable Housing in Collier County; and
WHEREAS, pursuant to this Memorandum of Understanding, the COUNTY is undertaking
certain activities to assist the community in developing affordable housing; and
WHEREAS, the DEVELOPER has requested for, and based on the information provided by the
DEVELOPER, is qualified to receive a loan; and
WHEREAS, the COUNTY and the DEVELOPER wish to set forth the responsibilities and
obligations, affordability covenants, and terms of the loan, of each in the undertaking of the Revolving
Loan Fund within the Affordable Workforce Housing(1075).
NOW, THEREFORE, in consideration of the covenants and terms of the Memorandum of
Understanding herein contained, and for other good and valuable consideration, the Parties hereby agree
that the COUNTY will provide a loan, in the amount of the Loan Amount to be repaid(the"Loan")to the
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DEVELOPER in connection with the construction of the Development,(as defined below)upon and subject
to all general conditions, terms, covenants herein set forth, the receipt and sufficiency of which is mutually
acknowledged, and the Parties further agree as follows.
1.1 TERMS OF THE LOAN AND AFFORDABILITY PERIOD
Terms of the Loan. The Loan shall be subject to the terms prescribed within that certain
Promissory Note dated ............... i(the "Note" or "Promissory Note"). The terms of the Note
will include that the annual interest rate of the Loan shall be zero percent (0%) during the period
commencing on the date of the Note and ending on the seventeenth (17th) anniversary thereof
(years 0 through 17 of the term of the Note) and five percent (5%) during the period commencing
on the first (1st)day after the seventeenth (17th)anniversary of the date of the Note and ending on
the maturity date of the Note (years 18 through 30 of the term of the Note), a thirty(30)year term,
and that the maturity date and an amortization loan schedule of repayment, as included in the
Promissory Note, is incorporated herein by reference.
Terms Governing the Affordability Period. The affordability period applicable to the Project
will be 30 years (the "Affordability Period") from, (Date of Disbursement, and
the terms governing such Affordability Period will be included in that certain Declaration of
Restrictive Covenants for EKOS on Santa Barbara entered into on June 25th, 2024 and recorded
in the Official Records Book L _ i, Page ! j, of the Public Records of
Collier County, Florida (the "Declaration" or "Declaration of Restrictive Covenants"). The
Declaration is incorporated herein by reference.
Affordable Housing Requirements are detailed in Part V of this MOU.
1.2 LOAN AND SPECIAL CONDITIONS
The obligation of the COUNTY to make the Loan is subject to the following conditions precedent.
A. Execution of this Memorandum of Understanding
B. The DEVELOPER must submit the following checked policies to the COUNTY within
sixty(60) days of execution of this MOU:
• Affirmative Action/ Equal Opportunity Policy
• Conflicts of Interest Policy
Sexual Harassment Policy
• Section 504 of the Rehabilitation Act of 1973/ADA Policy
• Govemmentwide Requirements for Drug-Free Workplace Policy
• Statutes and Regulations Prohibiting Discrimination Policy, et al.
• Hatch Act Policy
• Protections for Whistleblowers Policy
• Increasing Seat Belt Use in the United States Policy
• Reducing Text Messaging While Driving Policy
C. Annual Developer Training- Pertinent DEVELOPER staff assigned to the administration
of,and implementation of the Project established by this MOU,shall attend all COUNTY-
offered Developer training relevant to the Project, including Fair Housing and Income
mienrk
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Certification, as determined by the Loan Coordinator, or Compliance Supervisor, not to
exceed three(3)sessions annually
D. DEVELOPER will accomplish the following checked project tasks:
Maintain access to the County's designated grant software system to upload
Exhibit B,Annual Progress Reports(Exhibit C), Status Reports, and Narratives.
Maintain and provide to the COUNTY, as requested, beneficiary and/or income
certification documentation.
® Maintain Eligibility Documentation, retained at DEVELOPER's location or the
Property
E. Performance Deliverables
Program Deliverable Deliverable Supporting Submission Schedule
Documentation
Special Loan Condition Policies [Policies as stated in this MOIJ [Within sixty(60)days of MOU
(Section 1.2) execution
Insurance [Insurance Certificate,pursuant !Within thirty(30)days of MOU
to section 3.10 of this MOU. execution and annually within
thirty(30)days of renewal
Annual Progress Report Exhibit C Annually,October 31 s
Financial Audit Annual Audited Financial nually,within one hundred-
Statements eighty(180)days after
December 31'Fiscal Year End!
Register of Tenant Income and Summary of Tenant Income, !within 30 days after the
Rent Income Limit. Rent and Rent disbursement of the Loan and
Limit,by unit(Rent Roll) annually thereafter October 31st
until the end of the Affordability
Period)
F. Loan Repayment Deliverables
Payment Deliverable Payment Supporting Documentation Submission Schedule
Project Component 1:;Cost of Submission of supporting documents !,Submission of one
eligible impact fee must be provided,as evidenced by as invoice within 30
evidenced by proof of payment, days of signing this
invoice(s),and any other additional document
documentation as requested,along with
Exhibit B.,and any other additional
documentation as requested. (Exhibit B)
1.3 PERIOD OF PERFORMANCE
DEVELOPER shall pay eligible impact fees during the period beginning on March 3, 2021, and
ending at the end of the Affordability Period, !unless terminated earlier in accordance with
provisions of Paragraph 3.8, Defaults, Remedies, and Termination. In accordance with Florida
Statutes and Federal law, DEVELOPER may expend funds authorized by this MOU, only for the
payment of the eligible impact fees(being reimbursed by the Loan)paid by DEVELOPER during
the aforementioned period.
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if DEVELOPER complies with all requirements set forth herein, this Memorandum of
Understanding shall terminate on j 12054.Notwithstanding the foregoing,the
COUNTY expressly reserves and does not waive its right to recover any damages arising from or
relating to DEVELOPER's breach of this Memorandum of Understanding, the Promissory Note,
and/or Declaration of Restrictive Covenants, which occurred in whole or in part before said
termination.
1.4 MEMORANDUM OF UNDERSTANDING AMOUNT
The COUNTY agrees to make available 'EIGHT HUNDRED NINETY-THREE THOUSAND,
EIGHT HUNDRED TWENTY-SIX DOLLARS and TWENTY-FOUR CENTS($893,826.24)1 for
use by DEVELOPER during the term of the Memorandum of Understanding(hereinafter,shall be
referred to as the"Funds").
The County Manager or designee may extend the term of this MOU for a period of up to 180 days
after the end of the MOU. Extensions must be authorized, in writing, by formal letter to the
DEVELOPER from the COUNTY.
Until approved by the COUNTY for loan adherence to any and all applicable requirements,except
where disputed for noncompliance, payment will be made upon receipt of a properly completed
invoice and in compliance with section 218.70, Florida Statutes, otherwise known as the "Local
Government Prompt Payment Act."
1.5 DEBT REPAYMENT
Any funds paid to DEVELOPER in excess of the amount to which DEVELOPER is finally
determined to be authorized to retain under the terms of this MOU; that are determined by the
COUNTY to have been misused: or that are determined by the COUNTY to be subject to a
repayment obligation and have not been repaid by DEVELOPER shall constitute a debt to the
COUNTY.
Any debts determined to be owed to the COUNTY must be paid promptly by DEVELOPER. A
debt is delinquent if it has not been paid by the date specified in COUNTY's initial written demand
for payment,unless other satisfactory arrangements have been made. The COUNTY will take any
actions available to collect such a debt.
1.6 NOTICES
Notices required by this MOU shall be in writing and delivered via mail (postage prepaid),
commercial courier,personal delivery,or sent by facsimile or other electronic means. Either party
may change the address to which notices are to be sent to it by giving written notice of such change
to the other party in the manner herein provided for giving notice.Any notice,request,instruction,
or other document delivered or sent as aforesaid shall be effective on the date of delivery or sending.
All notices and other written communications under this MOU shall he addressed to the individuals
in the capacities indicated below,unless otherwise modified by subsequent written notice.
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COLLIER COUNTY ATTENTION:Director,Community and Human Services Division
Collier County Community and Human Services Division
3339 Tamiami Trail East, Suite 213
Naples,Florida 34112
Telephone: 239-252-2273
DEVELOPER ATTENTION:
MHP Bembridge,LLC
c/o McDowell Housing Partners, LLC
777 Brickell Avenue, Suite 1300
Miami, Florida 33131
I
Email: cshear@mcdhousin .com
telephone: (786)577-9837
(ATTENTION: Christopher Shear{
"Remainder of Page Intentionally Left BlankJ
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PART II
LOAN CONTROL
REQUIREMENTS
2.1 AUDITS
During the term of this MOU, DEVELOPER shall submit to the COUNTY Annual Audited
Financial Statements,one hundred eighty(180)days after the DEVELOPER's fiscal year end.The
COUNTY will conduct an annual financial and programmatic review.
DEVELOPER must clear any deficiencies noted in the auditor's findings, provided to the
COUNTY by DEVELOPER and pursuant to 2 CFR § 200.516,within 30 days after receipt of the
report. DEVELOPER's failure to comply with the requirements of this section will constitute a
violation of this MOU.
2.2 RECORDS AND DOCUMENTATION
DEVELOPER shall maintain sufficient records and retain and make such records available in
accordance with those standards promulgated by 2 CFR § 200.334—.338, as applicable to
DEVELOPER as a non-federal entity,to determine compliance with the requirements of this MOU,
and all other applicable laws and regulations.This documentation shall include, but is not limited
to,the following:
A. All records required by Chapter 119, Florida Statutes.
B. DEVELOPER agrees to execute such further documents as may be required by law or prepared
by the COUNTY to confirm DEVELOPER's MOU.
C. DEVELOPER shall make available at any time upon request by COUNTY,all reports,plans,
surveys,information, documents,maps,books, records,and other data procedures developed,
prepared,assembled,or completed by DEVELOPER for this MOU. Materials identified in the
previous sentence shall be in accordance with generally accepted accounting principles
(GAAP), procedures, and practices, which sufficiently and properly reflect all revenues and
expenditures of Funds provided directly or indirectly by this MOU,including matching funds.
These records shall be maintained to the extent of such detail as will properly reflect all net
costs,direct and indirect labor,materials,equipment,supplies and services,and other costs and
expenses of whatever nature for which reimbursement is claimed under the provisions of this
MOU.
D. Upon completion of all work contemplated under this MOU, copies of all documents and
records relating to this MOU shall be surrendered to COUNTY, if requested. In any event,
DEVELOPER shall keep all documents and records in an orderly fashion, in a readily
accessible,permanent, and secured location for five(5)years after the date of the later of the
Affordability Period or final loan payment. If any litigation,claim,or audit is started before the
expiration date of the five (5) year period, the records will be maintained until all litigation,
claim, or audit findings involving these records are resolved. If DEVELOPER ceases to exist
after the closeout of this MOU, it shall notify the COUNTY in writing, of the address where
the records are to be kept, as outlined in chapter 119, Florida Statutes. Wherever practicable,
such records should be collected, transmitted, and stored in open and machine-readable
formats. Should DEVELOPER possess any public records, it shall meet all requirements for
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retaining public records and transfer, at no cost to COUNTY, all public records in
DEVELOPER's possession upon termination of the MOU and destroy any duplicate exempt
and/or confidential public records that are free from public records disclosure requirements.
All such records stored electronically must be provided to the COUNTY in a format that is
compatible with the COUNTY's information technology systems.
COUNTY may request transfer of records of long-term value at the end of the five (5) year
retention period. Wherever practicable, such records should be collected, transmitted, and
stored in open and machine-readable formats.
1F DEVELOPER HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE DEVELOPER'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS MOU, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT 239-252-2679,
Michael.Brownlee(a?,colliercountvfl.Eov,3299 Tamiami Trail E,Naples FL 34112.
E. DEVELOPER shall provide the public with access to public records on the same terms and
conditions that the COUNTY would provide the records and at a cost that does not exceed the
cost provided in Chapter 119, Florida Statutes or as otherwise provided by law. DEVELOPER
shall ensure that exempt and/or confidential public records that are free from public records
disclosure requirements are not disclosed except as authorized by Florida Statutes.
F. Notwithstanding any provision in the Loan Documents to the contrary, DEVELOPER agrees
that the failure or delay by the COUNTY in giving any notice or statement hereunder or under
any other Loan Document, or any inaccuracy therein or incompleteness thereof, shall not in
any way alter or affect the absolute and unconditional obligation of DEVELOPER to pay and
perform in full, the obligations set forth hereunder, but any action taken or not taken by
DEVELOPER as a direct result of such lack or delay of notice, or of DEVELOPER's good
faith reliance upon a material inaccuracy therein or the material incompleteness thereof,as the
case may be,shall not in and of itself,and to the extent thereof,constitute an Event of Default
hereunder, so long as the DEVELOPER does not otherwise have or receive written notice or
actual knowledge of the material contents or substance of such notice, or of the intended
substance of any inaccurate or incomplete notice,as the case may be,and DEVELOPER acts,
at all times, in good faith.
2.3 MONITORING
DEVELOPER agrees that COUNTY may carry out no fewer than one(1)annual on-site monitoring
visit and evaluation activities, as determined necessary. At the COUNTY's discretion, a desktop
review of the activities maybe conducted in lieu of an on-site visit.The continuation of this MOU
is dependent upon satisfactory evaluations. DEVELOPER shall, upon the request of COUNTY,
submit information and status reports required by COUNTY to evaluate said progress and allow
for completion of required reports.DEVELOPER shall allow COUNTY to monitor DEVELOPER
on site. Such site visits may be scheduled or unscheduled, as determined by COUNTY. For such
site visits, the COUNTY will provide the DEVELOPER at least one business day prior written
notice before conducting a site visit.
At any time during normal business hours and as often as the COUNTY(and/or its representatives)
may deem necessary, DEVELOPER shall make available for review, inspection, or audit, all
records,documentation,and any other data relating to all matters covered by the MOU.
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The COUNTY will monitor the performance of DEVELOPER in an attempt to mitigate fraud,
waste, abuse, or non-performance, based on goals and performance standards, as stated with all
other applicable laws, regulations, and policies governing the Funds provided under this MOU.
Substandard performance, as determined by COUNTY, will constitute noncompliance with this
MOU. If corrective action is not taken by DEVELOPER within a reasonable period after being
notified by COUNTY,MOU suspension or termination procedures will be initiated.DEVELOPER
agrees to provide the Florida Auditor General, the COUNTY, the COUNTY's internal auditor(s),
or their representatives access to all records related to performance of activities in this MOU.
2.4 PREVENTION OF FRAUD,WASTE,AND ABUSE
DEVELOPER shall establish, maintain, and utilize the Fraud, Waste, and Abuse Policy required
under Section 1.2B of this MOU to prevent,detect,and correct incidents of fraud,waste,and abuse
in the performance of this MOU,and provide the proper and effective management of all Program
and Fiscal activities of the MOU. DEVELOPER'S Fraud,Waste,and Abuse Policy required under
Section 1.2B of this MOU and all transactions and other significant events related to this MOU and
its performance shall be clearly documented, and the documentation shall be readily available for
monitoring by COUNTY.
DEVELOPER shall provide COUNTY with complete access to all its records, employees, and
agents for the purpose of monitoring or investigating the performance of the MOU. DEVELOPER
shall fully cooperate with COUNTY's efforts to detect, investigate, and prevent fraud, waste,and
abuse. COUNTY shall be provided instant and complete access, without warning, to all records,
employees, and agents of the DEVELOPER upon reasonable articulatable suspicion of
DEVELOPER malfeasance or fraud,for the purpose of investigating the performance of the MOU.
DEVELOPER understands that making false statements or claims in connection with this award is
in violation of State of Florida law regardless of whether the state has title to the money or property.
DEVELOPER may not discriminate against any employee or other person who reports to
COUNTY,or to any appropriate law enforcement authority,a violation of the terms of this MOU,
or any law or regulation if the report is made in good faith.
2.5 CORRECTIVE ACTION
Corrective action plans may be required for noncompliance, nonperformance, or unacceptable
performance under this MOU. Penalties may be imposed for failure to implement or to make
acceptable progress on such corrective action plans.
To effectively enforce COUNTY Resolution No. 2013-228, COUNTY has adopted an escalation
policy to ensure continued compliance by Subrecipients, Developers, or any entity receiving loan
funds from COUNTY. COUNTY's policy for escalation for noncompliance is as follows:
I. Initial noncompliance may result in the COUNTY issuing Findings or Concerns to
DEVELOPER,which will require DEVELOPER to submit a corrective action plan to the
COUNTY within 15 days following issuance of the report.
a. Any pay requests that have been submitted to the COUNTY for payment will be held
until the corrective action plan has been submitted.
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•
b. COUNTY will be available to provide Technical Assistance (TA) to DEVELOPER,
as needed,to correct the noncompliance issue.
2. If DEVELOPER fails to submit the corrective action plan to the COUNTY in a timely
manner, COUNTY may require DEVELOPER to return a portion of the awarded loan
amount.
a. COUNTY may require DEVELOPER to return upwards of 5 percent of the award
amount,at the discretion of the Board.
b. DEVELOPER may be denied future consideration as set forth in Resolution No.2013-
228.
3. If DEVELOPER remains noncompliant or repeats an issue that was previously corrected
and has been informed by COUNTY of their substantial noncompliance by certified mail,
the COUNTY may require DEVELOPER to return a portion of the awarded loan amount.
a. COUNTY may require DEVELOPER to return to the COUNTY upwards of 10 percent
of the award amount,at the discretion of the Board.
b. DEVELOPER will be considered in violation of Resolution No.2013-228.
4. If after repeated notification, DEVELOPER continues to be substantially noncompliant,
COUNTY may recommend the MOU or award be terminated.
a. COUNTY will make a recommendation to the Board to immediately terminate the
contract or MOU. DEVELOPER will be required to repay all Funds disbursed by
COUNTY for the terminated project.
b. DEVELOPER will be considered in violation of Resolution No.2013-228.
If DEVELOPER has multiple agreements with the COUNTY,and is found to be noncompliant,the
above sanctions may be imposed across all awards,at the Board's discretion.
2.6 REPORTS
During the term of this MOU, DEVELOPER shall submit annual progress reports to the COUNTY
on the 31st day of October annually,commencing October 31,2024.As part of the report submitted
at the end of the project,DEVELOPER agrees to include a comprehensive final report covering the
agreed-upon Program objectives. Exhibit C is a reporting form to be used in fulfillment of this
requirement. Other reporting requirements may be required by the County Manager or designee if
the Program changes,the need for additional information or documentation arises by requirement
of the Federal Government, and/or legislative amendments are enacted. Reports and/or requested
documentation not received by the due date shall be considered delinquent and may be cause for
default and termination of this MOU. If approved by the COUNTY prior to submission, such
approval not to be intentionally delayed, DEVELOPER may satisfy these other reporting
obligations by submitting similar reports required of the DEVELOPER by Florida Housing Finance
Corporation
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PART III
TERMS AND CONDITIONS
3.1 SUBCONTRACTS
No part of this MOU may be assigned or subcontracted without the written consent of the
COUNTY, except for transfers permitted under the terms of the Declaration of Restrictive
Covenants,which consent,if given at all,shall be at the COUNTY's sole discretion and judgment.
Any assignee shall be bound by all the terms of this assigned document and its accompanying Loan
Documents.
3.2 GENERAL COMPLIANCE
DEVELOPER agrees to comply with all applicable laws, regulations, and policies governing the
Funds provided under this MOU.DEVELOPER further agrees to utilize Funds available under this
MOU to supplement rather than supplant funds otherwise available.
3.3 INDEPENDENT CONTRACTOR
Nothing contained in this MOU is intended to,or shall be construed in any manner,as creating or
establishing the relationship of employer/employee between the parties. DEVELOPER shall
always remain an"independent contractor"with respect to the services to be performed under this
MOU. The COUNTY shall be exempt from payment of all Unemployment Compensation, FICA,
retirement, life and/or medical insurance, and Workers' Compensation Insurance, as the
DEVELOPER is independent from the COUNTY.
3.4 AMENDMENTS
The COUNTY and DEVELOPER may amend this MOU, at any time, provided that such
amendments make specific reference to this MOU, are executed in writing, signed by a duly
authorized representative of each organization, and approved by the COUNTY'S governing body.
Such amendments shall not invalidate this MOU, nor relieve or release the COUNTY or
DEVELOPER from its obligations under this MOU.
The COUNTY may, in its discretion, amend this MOU to conform with Federal, State, or Local
governmental guidelines, policies, available funding amounts, or other reasons. If such
amendments result in a change in the funding,the scope of services, or schedule of activities to be
undertaken as part of this MOU, such modifications will be incorporated only by written
amendment,signed by both COUNTY and DEVELOPER.
No modification or waiver of any provision of the Loan Documents, and the Declaration of
Restrictive Covenants,nor consent to any departure by DEVELOPER therefrom shall in any event
be effective unless the same shall be in writing,and such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. No failure or delay on the part of the
COUNTY in exercising any right, power, or privilege hereunder or under the Loan Documents
shall operate as a waiver thereof,nor shall a single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right,power, or privilege.
3.5 INDEMNIFICATION
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To the maximum extent permitted by Florida law, DEVELOPER shall indemnify and hold
harmless the COUNTY, its officers, agents, and employees from any and all actual, third party
claims, liabilities, damages, losses, costs, and causes of action, including but not limited to,
reasonable attorneys' and paralegals' fees, which arise out of an act or omission, to the extent
caused by the negligence,recklessness,or intentionally wrongful conduct of DEVELOPER or any
of its agents,officers,servants,employees,contractors,patrons,guests,clients,licensees,invitees;
or any persons acting under the direction, control, or supervision of the DEVELOPER in the
performance of this MOU. This indemnification obligation shall not be construed to negate,
abridge,or reduce any other rights or remedies,which otherwise may be available to an indemnified
party or person described in this paragraph. DEVELOPER shall pay all such actual third party
claims and losses of any nature whatsoever in connection therewith and shall defend all suits in the
name of the COUNTY and shall pay all actual third party costs (including reasonable attorney's
fees) and judgments which may issue thereon. This Indemnification shall survive the termination
and/or expiration of this MOU. This section does not pertain to any incident arising from the
negligence of COUNTY where it is more than 50% at fault. The foregoing indemnification shall
not constitute a waiver of sovereign immunity beyond the limits set forth in section 768.28,Florida
Statutes. This section shall survive the expiration of termination of this Iv1OU.
3.6 COUNTY RECOGNITION
DEVELOPER agrees that all notices, infornrational pamphlets, press releases, advertisements,
descriptions of activity related to EKOS on Santa Barbara ("the PROJECT") including but not
limited to research reports, and similar public notices, whether printed or digitally prepared and
released by DEVELOPER for, on behalf of, and/or about the EKOS on Santa Barbara ("the
PROJECT")shall include the statement:
"FINANCED IN PART BY COLLIER COUNTY COMMUNITY AND HUMAN
SERVICES DIVISION"
and shall appear in the same size letters or type as the name of the DEVELOPER. This design
concept is intended to disseminate key information regarding the development team to the general
public.
3.7 DEBARMENT AND SUSPENSION
DEVELOPER certifies that neither it, nor its principals, are presently debarred, suspended,
proposed for debarment, declared ineligible, or voluntarily excluded from participation in this
transaction by any Federal Department or agency; and, that DEVELOPER shall not knowingly
enter into any lower tier contract, or other covered transaction, with a person who is similarly
debarred or suspended from participating in this covered transaction, as outlined in OMB
Guidelines to Agencies on governmentwide Debarment and Suspension(non-procurement),2 CFR
Part 180, including the requirement to include a term or condition in all lower tier covered
transactions(contracts and subcontracts described in 2 CFR Part 180, subpart B)that the award is
subject to 2 CFR Part 180 and Treasury's implementing regulation at 31 CFR Part 19.
3.8 DEFAULTS,REMEDIES,AND TERMINATION
This MOU may be terminated for convenience by either the COUNTY or DEVELOPER,in whole
or in part, at any time prior to the disbursement of the Funds to the DEVELOPER,by setting forth
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the reasons for such termination, the effective date, and, in the case of partial terminations, the
portion to be terminated. However, in the case of a partial termination, at any time prior to the
disbursement of the Funds to the DEVELOPER, if the COUNTY determines that the remaining
portion of the award will not accomplish the purpose for which the award was made,the COUNTY
may terminate the award in its entirety.This MOU may also be terminated,at any time prior to the
disbursement of the Funds to the DEVELOPER, if the award no longer effectuates the program
goals or COUNTY priorities.
The following actions or inactions by DEVELOPER shall constitute an"Event of Default"under
this MOU if, following the DEVELOPER's receipt of written notice from the COUNTY of such
actions or inactions,the DEVELOPER fails to cure such actions or inactions within thirty(30)days
after written notice thereof is received by the DEVELOPER from the COUNTY provided,
however,that if any action or inaction cannot reasonably by cured within thirty(30)days,or in the
event of issues of health, safety, or welfare, twenty-four(24) hours, DEVELOPER shall have an
additional period of time as is reasonably necessary, as reasonably determined by the County
Manager or designee,to cure such actions or inactions:
A. Failure to comply with any of the rules, regulations, or provisions referred to herein, or such
statutes, regulations, executive orders, and guidelines, policies, or directives as may become
applicable at any time.
B. Failure,for any reason,to fulfill in a timely and proper manner its obligations under this MOU.
C. Ineffective or improper use of Funds provided under this MOU.
D. Submission of reports to the COUNTY that are incorrect or incomplete in any material respect.
E. Submission of any false certification.
F. Failure to materially comply with any terms of this MOU.
G. Failure to materially comply with the terms of any Loan Documents between the COUNTY
and DEVELOPER relating to the project.
H. DEVELOPER assigns this MOU or any money advanced hereunder or any interest herein.
1. Any representation or warranty made herein or in any report, certificate, financial statement,
or other instrument furnished in connection with this MOU or the Loan shall prove to be false
when made in any material respect.
J. If material adverse changes occur in the financial condition of the DEVELOPER at any time
during the MOU,and DEVELOPER fails to cure this adverse condition within thirty(30)days
from the date written notice is sent by the COUNTY.
In the event of any Event of Default by DEVELOPER under this MOU,which is continuing beyond
the expiration of all applicable notice, grace, and cure periods, the COUNTY may seek any
combination of one or more of the following remedies:
A. Require specific performance of the MOU,in whole or in part.
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B. Require immediate repayment to the COUNTY of all Funds that DEVELOPER has received
under this MOU,as set forth in Section 1.4.
C. Apply sanctions, if determined by the COUNTY to be applicable.
D. Stop all payments,until identified deficiencies are corrected.
E. Terminate this MOU by giving written notice to DEVELOPER specifying the effective date of
such termination. If the MOU is terminated by the COUNTY, as provided herein,
DEVELOPER shall have no claim of payment or benefit for any incomplete project activities
undertaken under this MOU.
F. CREA The Harmony on Santa Barbara,LLC,its successors or assigns,shall have the right,but
not the obligation,to cure any and all Borrower default or Event of Default,and the COUNTY
shall accept such cure as if it was tendered by the Borrower.
3.9 !INTENTIONALLY OMITTED]
3.10 INSURANCE
DEVELOPER shall not commence any work or services pursuant to this MOU until all required
insurance, included in Exhibit A has been obtained. Said insurance shall be carried continually
during DEVELOPER's performance under the MOU.
3.11 LOAN CLOSEOUT PROCEDURES
DEVELOPER's obligation to the COUNTY shall not end until all closeout requirements are
completed. DEVELOPER may close out the project with the COUNTY after the expiration of the
MOU and completion of the Affordability Period. !Activities during this closeout period shall
include,but are not limited to making final payments,payment of all interest due,and determining
the custodianship of records.
3.12 DISCRIMINATION AND CIVIL RIGHTS COMPLIANCE
DEVELOPER agrees that no person shall be excluded from the benefits of, or be subjected to,
discrimination under any activity carried out by the performance of this MOU based on race,color,
disability, national origin, religion, age, familial status, or sex. Upon receipt of evidence of such
discrimination,the COUNTY shall have the right to terminate this MOU.
3.13 OPPORTUNITIES FOR SMALL AND MINORITY/WOMEN OWNED BUSINESS
ENTERPRISES
DEVELOPER will take all necessary affirmative steps to assure that minority businesses,women's
business enterprises, and labor surplus area firms are used, when possible, in accordance with 2
CFR 200.321.
3.14 CIVIL RIGHTS REQUIREMENTS
DEVELOPER shall comply with Title VI of the Civil Rights Act of 1964, which prohibits
recipients of federal financial assistance from excluding from a program or activity, denying
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benefits of,or otherwise discriminating against person on the basis of race,color,or national origin
(42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury's Title VI
regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this
MOU. Title VI also includes protection to persons with "Limited English Proficiency" in any
program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as
implemented by the Department of the Treasury's Title VI regulations,31 CFR Part 22,and herein
incorporated by reference and made a part of this MOU.
3.15 CONFLICT OF INTEREST
DEVELOPER covenants that no person under its employ, who presently exercises any functions
or responsibilities in connection with the Project, has any personal financial interest, direct or
indirect, in the Project areas or any parcels therein,which would conflict in any manner or degree
with the performance of this MOU, and DEVELOPER will not employ or subcontract any person
having any conflict of interest. DEVELOPER also covenants that it will comply with all Conflict
of Interest provisions of State and County statutes,regulations,ordinances,or resolutions governing
conflicts of interest.
DEVELOPER will notify the COUNTY,in writing,and seek COUNTY approval prior to entering
into any contract with an entity owned in whole or in part by a covered person,or an entity owned
or controlled in whole or in part by the DEVELOPER. The COUNTY may review the proposed
contract to ensure that the contractor is qualified, and the costs are reasonable. Approval of an
identity of interest contract will be in the COUNTY's sole discretion.This provision is not intended
to limit DEVELOPER's ability to self-manage the projects using its own employees.
Any possible conflict of interest on the part of the DEVELOPER, its employees,or its contractors
shall be disclosed, in writing, to COUNTY provided however, that this paragraph shall be
interpreted in such a manner so as not to unreasonably impede the statutory requirement that
maximum opportunity be provided for employment and participation of low-and moderate-income
residents of the project target area.
3.16 INCIDENT REPORTING
If DEVELOPER provides services to clients under this MOU, DEVELOPER shall report to the
COUNTY any knowledge or reasonable suspicion of abuse,neglect,or exploitation of a child,aged
person,or disabled person.
During the term of this MOU,DEVELOPER will notify the COUNTY via phone call(pursuant to
Section 1.6 of the MOU)or email to the COUNTY's Director of Community and Human Services,
of any substantial,controversial,or newsworthy incidents which will have a material adverse effect
on the COUNTY within one (1) business day after DEVELOPER receives actual notice of the
occurrence of such an event.DEVELOPER will submit an incident report to the COUNTY within
five(5)business days after DEVELOPER receives actual notice of the occurrence of such an event,
using the Collier County Standard Developer Incident Report Form.
3.17 SEVERABILITY
Should any provision of the MOU be determined to be unenforceable, or invalid, such a
determination shall not affect the validity or enforceability of any other section or part thereof.
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3.18 WAIVER
The COUNTY'S failure to act with respect to a breach by DEVELOPER does not waive its right
to act with respect to subsequent or similar breaches.The COUNTY'S failure to exercise or enforce
any right or provision shall not constitute a waiver of such right or provision.
3.19 MISCELLANEOUS
DEVELOPER and COUNTY each binds itself, its partners, successors, legal representatives, and
assigns of such other party in respect to all covenants of this MOU.
DEVELOPER represents and warrants that the financial data,reports,and other information on the
Project that it furnished to the COUNTY are accurate and complete as of the date such information
was furnished,and financial disclosures fairly represent the financial position of the DEVELOPER
as of the date of such financial disclosures.
DEVELOPER agrees that should any report, certificate, financial statement, or other instrument
furnished by DEVELOPER in connection with this MOU or the Loan be subsequently amended in
any material respect, DEVELOPER shall provide a copy of such amended document to the
COUNTY within(30)thirty days after DEVELOPER receives such amended document.
DEVELOPER certifies that it has the legal authority to receive the Funds under this MOU and that
its governing body has authorized the execution and acceptance of this MOU. The DEVELOPER
also certifies that the undersigned person has the authority to legally execute and bind
DEVELOPER to the terms of this MOU.
The section headings and subheadings contained in this MOU are included for convenience only
and shall not limit or otherwise affect the terms of this MOU.
The Loan Documents shall be construed in accordance with and governed by the laws of the State
of Florida,without giving effect to its provisions regarding choice of laws.
All activities authorized by this MOU shall be subject to and performed in accordance with the
provisions of the terms and conditions of this MOU with the COUNTY, all applicable Federal,
State,and Municipal laws,ordinances,regulations,orders,and guidelines.
This MOU, documents ancillary to this MOU, and other related documents entered into in
connection with this MOU are signed when a party's signature is delivered by facsimile,e-mail,or
any other electronic medium. These signatures must be treated in all respects as having the same
force and effect as original signatures.
'Remainder of Page Intentionally Left Blank/
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PART IV
GENERAL PROVISIONS
4.1 Title VI of the Civil Rights Act of 1964(42 USC § 2000(d) et seq., and Treasury's implementing
regulation at 31 CFR Part 22), as amended,Title VIII of the Civil Rights Act of 1968, as amended
https://www.hud.gov/programdescription/title6
4.2 The Americans with Disabilities Act of 1990: Public Law 101-336, 42 U.S.C. Section 12101 et
seq. http://librarv.clerk.house.gov/reference-files/PPL 101 336 AmericansWithDisabilities.pdf
https://www.law.comell.edu/uscode/text/42/12101
4.3 Lobbying: No funds received pursuant to this Agreement may be expended for lobbying the
Legislature,the judicial branch or a state agency.
4.4 Arrest and Conviction Records: State laws restrict use of arrest and conviction records in the
employment context,except when specifically authorized. The DEVELOPER agrees to avoid the
misuse of arrest or conviction records to screen applicants for employment or employees for
retention or promotion that may have a disparate impact based on race or national origin,resulting
in unlawful employment discrimination unless use is otherwise specifically authorized by law.
4.5 False Claim; Criminal, or Civil Violation: DEVELOPER must promptly refer to COUNTY any
credible evidence that a principal, employee,agent, contractor, subcontractor, or other person has
either (i) submitted a false claim for loan funds under the False Claims Act or (ii) committed a
criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or
similar misconduct involving subaward MOU funds.
4.6 Prohibition of Gifts to COUNTY Employees - No organization or individual shall offer or give,
either directly or indirectly, any favor, gift, loan, fee, service, or other item of value to any
COUNTY employee,as set forth in Chapter 112, Part Ill, Florida Statutes,Collier County Ethics
Ordinance No.2004-05,as amended,and County Administrative Procedure 5311.
Florida Statutes-
https://www.lawserver.com/law/state/florida/statutes/florida statutes_chapter 112_part iii
Collier County-
http://www.colliergov.net/home/showdocunent?id=3 5 137
4.7 Order of Precedence-In the event of any conflict between or among the terms of any of the Contract
Documents, the terms of the MOU shall take precedence over the terms of all other Contract
Documents,except the terms of any Supplemental Conditions shall take precedence over the MOU.
To the extent any conflict in the terms of the Contract Documents cannot be resolved by application
of the Supplemental Conditions,if any,or the MOU,the conflict shall be resolved by imposing the
more strict or costly obligation under the Contract Documents upon the Contractor at Owner's
discretion.
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4.8 Venue-Any suit of action brought by either party to this MOU against the other party, relating to
or arising out of this MOU, must be brought in the appropriate federal or state courts, in Collier
County, FL which courts have sole jurisdiction on all such matters.
4.9 Dispute Resolution - Prior to the initiation of any action or proceeding permitted by this MOU to
resolve disputes between the parties,the parties shall make a good faith effort to resolve any such
disputes by negotiation. Any situations when negotiations, litigation and/or mediation shall be
attended by representatives of DEVELOPER with full decision-making authority and by
COUNTY'S staff person who would make the presentation of any settlement reached during
negotiations to COUNTY for approval. Failing resolution, and prior to the commencement of
depositions in any litigation between the parties arising out of this MOU,the parties shall attempt
to resolve the dispute through Mediation before an agreed-upon Circuit Court Mediator certified
by the State of Florida. Should either party fail to submit to mediation as required hereunder, the
other party may obtain a court order requiring mediation under § 44.102, Florida Statutes. The
litigation arising out of this MOU shall be adjudicated in Collier County, Florida,if in state court
and the US District Court, Middle District of Florida, if in federal court. BY ENTERING INTO
THIS MOU, COLLIER COUNTY AND THE DEVELOPER EXPRESSLY WAIVE ANY
RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO,OR ARISING OUT OF,THIS MOU.
https://www.flsenate.gov/Laws/Statutes/2012/44.102
4.10 As provided in § 287.133, Florida Statutes, by entering into this MOU or performing any work in
furtherance hereof; the DEVELOPER certifies that it, its affiliates, suppliers, subcontractors and
consultants who will perform hereunder, have not been placed on the convicted vendor list
maintained by the State of Florida Department of Management Services within the 36 months
immediately preceding the date hereof
This notice is required by§287.133 (3)(a), Florida Statutes.
http://www.leg.state.fl.us/Statutes/index.cfm?App mode=Display Statute&Search String=&UR
L :1200-029910287/Sections/0287.133.html
4.11 Florida Statutes 119.021 Records Retention
http://www.leg.state.fl.us/Statutes/index.cfm?App mode=Display Statute&URL=0100-
0199/0119/Sections/0119.021.html
4.12 Florida Statutes, 119.071,Contracts and Public Records
http://www.leg.state.fl.us/Statutes/index.cfm?App mode=Display Statute&URL=0100-
0199/0119/Sections/0119.071.html
4.13 Those standards promulgated by 2 CFR § 200.334—.338,as applicable to DEVELOPER as a non-
federal entity. https://www.ecfr.gov/current/title-2/subtitle-A/chapter-11/part-200/subpart-
D/subject-group-ECFR4acc l 0e7e3b676f?toc=1
PART V
W
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AFFORDABLE HOUSING REQUIREMENTS
5.1 Affordable Housing Requirements including Loan Provisions and annual Amortization Schedule
are incorporated hereto by reference in the Promissory Note and Declaration of Restrictive
Covenant.
5.2 Tenant Protection Requirements for DEVELOPER
The following program requirements that must be met have been clarified to include four core
requirements:
• Resident income restrictions
• The Affordability Period and related covenant requirements for assisted units
• Tenant protections
• Housing quality standards
(a) 1Resident Income Restrictions—Prior to lease-up and annually thereafter DEVELOPER
must calculate household annual income, Income determinations (see ref. links
provided below). DEVELOPER shall use Annual HUD Income Limits, adjusted-for
household size,to establish resident eligibility.DEVELOPER shall maintain a total of
82 affordable/workforce units restricted in accordance with the Declaration.
Ref.FY 2023 Income Limits Documentation System-- Summary for Collier County,
Florida(huduser.gov)and https://www.huduser.gov/portal/datasets/lihtc.html.
(b) Affordability Period and related covenants — The Affordability Period for this
Memorandum of Understanding is not less than 30 years from the date of disbursement,
as recorded in the Declaration of Restrictive Covenants, and the project or assisted
units are available for occupancy after having received the loan.
(c) Tenant Protections — Except for those leases for DEVELOPER's agent and/or
management company employees or subcontractors that may occupy apartment units
on a month-to-month basis with or without an executed tenant lease, DEVELOPER
will provide a written tenant lease for an initial period of not less than six months.Such
lease may not include the following prohibited lease terms:
I. Memorandum of Understanding by the tenant to be sued,to admit guilt,or
to a judgment in favor of the DEVELOPER;
2. Memorandum of Understanding by the tenant that the DEVELOPER may
take,hold,or sell personal property of household members without notice
to the tenant and a court decision on the rights of the parties. This
prohibition,however,does not apply to a Memorandum of Understanding
by the tenant concerning disposition of personal property remaining in the
housing unit after the tenant has moved out of the unit.The DEVELOPER
may dispose of this personal property in accordance with State law; in a
lawsuit brought in connection with the lease;
3. Memorandum of Understanding by the tenant not to hold the
DEVELOPER or the DEVELOPER's agents legally responsible for any
action or failure to act, whether intentional or negligent;
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4. Memorandum of Understanding of the tenant that the DEVELOPER may
institute a lawsuit without notice to the tenant;
5. Memorandum of Understanding by the tenant that the DEVELOPER may
evict the tenant or household members 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;
6. Memorandum of Understanding by the tenant to waive any right to a trial
by jury;
7. Memorandum of Understanding by the tenant to waive the tenant's right
to appeal,or to otherwise challenge in court,a court decision in connection
with the lease;
8. Memorandum of Understanding by the tenant to pay attorney's fees or
other legal costs even if the tenant wins in a court proceeding by the
DEVELOPER against the tenant. The tenant, however,may be obligated
to pay costs if the tenant loses; and
9. Memorandum of Understanding by the tenant (other than a tenant in
transitional housing)to accept supportive services that are offered.
(d) Termination of tenancy—DEVELOPER may not terminate the tenancy or refuse to
renew the lease of a tenant of rental housing assisted under this Memorandum of
Understanding,except for serious or repeated violation of the terms and conditions of
the lease; for violation of applicable Federal, State, or local law; or for other good
cause. Good cause does not include an increase in the tenant's income.To terminate or
refuse to renew tenancy,the DEVELOPER must serve written notice upon the tenant
specifying the grounds for the action at least 30 days before the termination of tenancy,
except where tenants agree to waive the move-out notice.
(e) Housing quality standards—The DEVELOPER must construct the property so that it
meets state and local codes,ordinances,and zoning requirements at the time of project
completion. Additionally,the housing must meet the accessibility requirements of 24
CFR part 8,which implements Section 504 of the Rehabilitation Act of 1973 (29 USC
794), and Titles 11 and III of the Americans with Disabilities Act (42 USC 12131-
12189),implemented at 28 CFR parts 35 and 36.
(f) Ongoing property standards—The DEVELOPER must maintain the property as decent,
safe, and sanitary housing in good repair throughout the Affordability Period,
according to the HUD National Standards for Physical Inspection of Real Estate
(NSPIRE) administrative procedures. The COUNTY will inspect, or will cause the
property to be inspected, every three (3) years, provided that the NSPIRE property
score is greater than or equal to 80 points, at the previous inspection. Inspections
resulting in a score greater than or equal to 60 points and less than 80 points will be
inspected every two(2)years.If the inspection score is less than 60 points,the property
will be inspected every year.The frequency of inspections will be reassessed after each
inspection.
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5.3 Additional Requirements
Number of Affordable Housing Units and AMI—IFor the purposes hereof,"Development"shall
mean 82-units of affordable housing constructed by the DEVELOPER ("the Borrower") on land
described on Exhibit"A" attached to the Promissory Note and for which 60% AMl shall be the
average of all units. I
Affordability Period-As a new construction rental project,the Affordability Period is that during
which the DEVELOPER must maintain compliance with regulations of thirty (30) years. The
Affordability Period will not commence until all funds have been disbursed per Section 1.1. The
COUNTY will record a covenant running with the Developer's leasehold interest in the land, in
form satisfactory to the COUNTY, that provides a means of enforcement of the affordability
provisions of this Memorandum of Understanding.If necessary,at the determination of the County
Manager or Designee, the DEVELOPER shall execute an amendment to the Declaration that
extends the affordability restrictions to the exact date of expiration of the Affordability Period.
/Signature Page to Follon/
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IN WITNESS WHEREOF,the DEVELOPER and COUNTY, have each respectively, by an
authorized person or agent,hereunder set their hands and seals as of the date first written above.
AS TO COUNTY:
BOARD OF ' NTY COMMISSIONERS OF ATTEST:
COLLIER Y, F 1DA Crystal K. KinzeL-:Clerk
By:
!CH A L. CHAIRPERSO By:
/ Attest as to Chai dub) pu ,Clerk-
Date: 6/ ZS/Z 4/ tom. signature only'
App ive as o o lit-y:
4
Derek!. Pe ' 10�20
Assist. t Co ty Attorney ��
Date: 6/25/2
AS TO DEVELOPER:
MHP BEMBRIDGE, LLC, a Florida limited
liability company
By:MHP Bembridge Member,LLC,a Florida
limited liability company, its Managing
Member
By:
Print Name: W. Patrick McDowell
Title: Chief Executive Officer
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PART VI
EXHIBITS
EXHIBIT A
INSURANCE REQUIREMENTS
DEVELOPER shall furnish to Collier County, do Community and Human Services Division, 3339
Tamiami Trail East, Suite 213, Naples, Florida 34112, Certificate(s) of Insurance evidencing insurance
coverage that meets the requirements below:
1. Workers' Compensation as required by Chapter 440, Florida Statutes,if applicable.
2. Commercial General Liability, including products and completed operations insurance, in the
amount of$1,000,000 per occurrence and$5,000,000 aggregate.Collier County must be shown as
an additional insured with respect to this coverage.
3. Automobile Liability Insurance covering all owned, non-owned and hired vehicles used in
connection with this MOU, in an amount not less than $1,000,000 combined single limit for
combined Bodily Injury and Property Damage,if applicable.
DESIGN STAGE (IF APPLICABLE)
In addition to the insurance required in I —3 above,a Certificate of Insurance must be provided as follows:
4. Professional Liability Insurance,in the name of DEVELOPER or the licensed design professional
employed by DEVELOPER, in an amount not less than $1,000,000 per occurrence/$1,000,000
aggregate providing for all sums which DEVELOPER and/or the design professional shall become
legally obligated to pay as damages for claims arising out of the services performed by
DEVELOPER or any person employed by DEVELOPER in connection with this MOU. This
insurance shall be maintained for a period of two(2)years after the final Certificate of Occupancy
is issued.
CONSTRUCTION PHASE (1F APPLICABLE)
In addition to the insurance required in 1 —4 above,DEVELOPER shall provide,or cause its Subcontractors
to provide, original certificates indicating the following types of insurance coverage prior to any
construction:
5. Completed Value Builder's Risk Insurance on an "All Risk" basis, in an amount not less than
100 percent of the insurable value of the building(s)or structure(s).The policy shall be in the name
of Collier County and DEVELOPER.
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6. In accordance with the requirements of the Flood Disaster Protection Act of 1973(42 U.S.C.4001),
DEVELOPER shall ensure that, for activities located in an area identified by the Federal
Emergency Management Agency(FEMA) as having special flood hazards,flood insurance under
the National Flood Insurance Program is obtained and maintained, as a condition of financial
assistance for acquisition or construction purposes(including rehabilitation).
OPERATION/MANAGEMENT PHASE(IF APPLICABLE)
After the Construction Phase is completed and occupancy begins,the following insurance must be kept in
force throughout the duration of the loan and/or MOU:
7. Workers' Compensation as required by Chapter 440,Florida Statutes.
8. Commercial General Liability including products and completed operations insurance in the
amount of$1,000,000 per occurrence and$5,000,000 aggregate.Collier County must be shown as
an additional insured with respect to this coverage.
9. Automobile Liability Insurance covering all owned, non-owned and hired vehicles used in
connection with this MOU in an amount not less than $1,000,000 combined single limit for
combined Bodily Injury and Property Damage.
10. Property Insurance coverage on an"All Risk"basis, in an amount not less than 100 percent of the
replacement cost of the property. Collier County must be shown as a Loss payee, with respect to
this coverage A.T.I.M.A.
11. Flood Insurance coverage for at least the amount of the Funds for those properties found to be
within a flood hazard zone, for the full replacement value of the structure(s) or the maximum
amount of coverage available through the National Flood Insurance Program (NF1P). The policy
must show Collier County as a Loss Payee A.T.I.M.A.
EXHIBIT B
COLLIER COUNTY COMMUNITY & HUMAN SERVICES
1[23-SOC-01106/1853805/1]MHP BEMBRIDGE,LLC
AHTF23-01 Revolving Loan Fund EKOS on Santa Barbara
Collier County Affordable Housing Impact Fees Page 23 of 25j 0
16D 1
SECTION I: REQUEST FOR PAYMENT
SUBRECIPIENT Name: MHP Bembridge,LLC
SUBRECIPIENT Address: 777 Brickell Avenue, Suite 1300, Miami,FL 33131
Project Name: HTF Revolving Loan Fund EKOS on Santa Barbara
Project No: AI-ITF ES23-01 EKOS on Santa Barbara Payment#
Total Payment Minus Retainage
Period of Availability: March 3,2021 through; ; 2054
Period for which the Agency has incurred the indebtedness I j through j
SECTION II: STATUS OF FUNDS
Developer County Approved
1.Total Loan Amount Awarded j$ $
2.Total Amount of Previous Payments $ $
By signing this report,I certify to the best of my knowledge and belief that this request for payment is true,
complete and accurate, and the expenditures, disbursements and cash receipts are for the purposes and
objectives set forth in the term and conditions of the Federal award. I am aware that any false,fictitious,or
fraudulent information, or the omission of any material fact, may subject me to criminal, civil, or
administrative penalties for fraud, false statements, false claims or otherwise (U.S. Code Title 18, Section
1001 and Title 31, Sections 3729-3730 and 3801-3812; and/or Title VI, Chapter 68, Sections 68.081-083,
and Title XLVI Chapter 837, Section 837-06).
Signature Date
Title
Authorized Developer's Representative Loan Reviewer(County)
County Division Director
[23-SOC-01106/1853805/1] MHP BEMBRIDGE, LLC
AHTF23-01 Revolving Loan Fund EKOS on Santa Barbara
Collier County Affordable Housing Impact Fees Page 24 of 2 0
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16D 1
EXHIBIT C
ANNUAL PROGRESS REPORT
Report Period:
Fiscal Year:
Total Funds Repaid for Report Period:
MOU Number: AHTF23-01
DEVELOPER Name: MHP Bembridge, LLC
Program: jHTF Revolving Loan Fund(1075) for Impact Fees
Contact Name:
Contact Telephone Number:
2. Project Progress:
Describe your progress and any impediments experienced during the reporting period.
By signing this report, 1 certify to the best of my knowledge and belief that the information contained in
this report is true, complete and accurate. I am aware that any false, fictitious, or fraudulent information,
or the omission of any material fact,may subject me to criminal,civil,or administrative penalties for fraud,
false statements,false claims or otherwise(U.S. Code Title 18, Section 1001 and Title 31, Sections 3729-
3730 and 3801-3812).
Signature: Date:
Printed Name:
Title: j
NOTE: This form subject to modification based on Treasury guidance.
Your typed name here represents your electronic signature.
1[23-SOC-01106/1853805/1]MHP BEMBRIDGE, LLC
AHTF23-01 Revolving Loan Fund EKOS on Santa Barbara
Collier County Affordable Housing Impact Fees Page 25 of 251 0
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ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP 1 6 D 1
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
**NEW** ROUTING SLIP
Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the
exception of the Chairman's signature,draw a line through routing lines#1 through#2,complete the checklist,and forward to the County Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1. Carrie Kurutz Community and Human CK 6.17.24
Services
2. County Attorney Office— DPP County Attorney Office
DA-klfilh 6/ 7/ Y
3. BCC Office Board of County Commissioners 1I /S 4/27/ZV �j�
4. Minutes and Records Clerk of Court's Office I( ! /a 1-"'1
ii/31 aoa-tf
PRIMARY CONTACT INFORMATIO
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the addressees
above,may need to contact staff for additional or missing information.
Name of Primary Staff Carrie Kurutz,Grant Coordinator 239.252.2644
Contact/ Department
Agenda Date Item was 6.25.24 Agenda Item Number INSERT AGENDA ITEM# ` ,,TJ,1,b
Approved by the BCC NOT MINUTE TRACK#
Type of Document MOU FOR U.S.TREASURY(SLFRF) Number of Original 3 copies of each:
Attached FUNDED ACTIVITIES INCLUDING MOU Documents Attached • Promissory Note
(MHP BEMBRIDGE,LLC);PROMISSORY • Declaration of
NOTE;DECLARATION OF RESTRICTIVE
COVENANTS; KEYBANK Restrictive
SUBORDINATION AGRMNT Covenants
• KeyBank
Subordination
Agreement
PO number or account Complete with PO#or Account#if there is
number if document is an associated cost such as recording cost or
to be recorded Fed EX Cost
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A"in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
1. Does the document require the chairman's original signature STAMP OK
2. Does the document need to be sent to another agency for additional signatures? If yes,
provide the Contact Information(Name;Agency;Address;Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be Yes
signed by the Chairman,with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's N/A
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the Yes
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's Yes
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip N/A
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of your deadlines!
8. The document was approved by the BCC on above date and all changes made during N/A is not
the meeting have been incorporated in the attached document. The County ''" an option for
Attorney's Office has reviewed the changes,if applicable. this line.
9. Initials of attorney verifying that the attached document is the version approved by the N/A is not
BCC,all changes directed by the BCC have been made, and the document is ready for the --3 an option for
Chairman's signature. this line.
**** Please send copy to Minutes & Records and one to Subrecipient. Thank you.
16D 1
PROMISSORY NOTE
(unsecured)
EKOS on Santa Barbara
Date:I S(in.e I I 1, 2024 (Date of Disbursement)
Amount: $893,826.24
FOR VALUE RECEIVED, the undersigned, MHP Bembridge,LLC, a Florida limited liability company,
hereinafter referred to as"Borrower,"having its principal office at 777 Brickell Avenue, Suite 1300,Miami,
Florida 33131,promises to pay to the order of Collier County,Florida, a political subdivision of the State of
Florida, hereinafter referred to as "Lender", having its principal address at c/o Office of the County Attorney,
3299 Tamiami Trail East,Suite 800,Naples,FL 34112, or its successors,the original principal amount of Eight
Hundred Ninety-Three Thousand Eight Hundred Twenty-Six Dollars and Twenty-Four cents ($893,826.24)
(the"Loan").
LOAN PAYMENT: Borrower shall pay the outstanding principal of the indebtedness evidenced by this
Promissory Note("Note"),and all other charges and indebtedness provided herein, at the times and in the
manner provided in this Note. The term of this Note is thirty(30)years and matures thirty(30)years from
the date of disbursement,on! L,te 11 j, 2054(the"Maturity Date"). During the period commencing
on the date of this Note and ending on the seventeenth (17th) anniversary thereof(years 0 through 17 of
the term of this Note),the interest rate on this Note shall be zero percent(0%)and no payments of principal
or interest shall be due. During the period commencing on the first (1st) day after the seventeenth (17t1i)
anniversary of the date of this Note and ending on the Maturity Date (years 18 through 30 of the term of
this Note), interest shall accrue on the outstanding principal amount of the Note at the per annum interest
rate equal to five percent (5%) and Borrower shall make payments of interest only on or before the
anniversary of the date of disbursement of each year commencing with the year in which the seventeenth
(17th) anniversary of the date of this Note occurs. On the Maturity Date, any outstanding principal amount
of the indebtedness evidenced by this Note and accrued, but unpaid, interest (if any) shall be due and
payable. Notwithstanding anything to the contrary and for avoidance of doubt, there will be no required
payments of the principal amount of the indebtedness evidenced by this Note until the Maturity Date.
Further notwithstanding anything to the contrary, this Note and the principal amount of the indebtedness
evidenced by this Note may, but shall not automatically be, forgiven at the sole and absolute discretion of
the Lender on or by the Maturity Date.
DEFAULT&ACCELERATION:Lender shall have the optional right to declare the amount of the total
unpaid balance hereof to be due and forthwith payable in advance of the Maturity Date of any sum due or
installment, as fixed herein,upon the occurrence of any event or failure to perform in accordance with any
of the terms and conditions in this Note, after any applicable notice and opportunity to cure, as provided
in that certain Memorandum of Understanding (the "MOU") between the parties entered into June 11 th,
2024, and subject to that certain Subordination Agreement by and between U.S. Bank Trust Company,
National Association, a national banking association, successor-in-interest to U.S. Bank National
Association, as bond trustee for the benefit of KeyBank National Association, a national banking
association, as holder of the Bonds, its successors and assigns and Collier County, entered into on June
11th, 2024 (the"Keybank Subordination").
ESTOPPEL/WAIVER: Failure of Lender to declare a default shall not constitute a waiver of such
default. Upon default, this Note will accrue interest at the highest rate permissible under applicable law
(the"Default Rate").
[23-SOC-01106/1853806/1] Page 1 of 5 p
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16D 1
PREPAYMENT:Borrower reserves the right to prepay at any time all or part of the principal amount of this
Note without the payment of penalties or premiums, with such prepayments subject to the Keybank
Subordination. Any prepayments of this Note, prior to default, shall be first applied to reduce the principal
amount of this Note and second to the payment of interest,if any,and does not negate the affordability period,
as defined in the MOU and Declaration.
COLLECTION COSTS: If suit is instituted by Lender to recover this Note,Borrower agree(s)to pay all
reasonable out of pocket costs of such collection including reasonable attorney's fees and court costs.
PARTIES: The words "Borrower"and"Lender"in this Note shall be construed to include the respective
heirs, personal representatives, successors, and assigns of the Borrower and the Lender.
SUBORDINATION: The right of the Lender to payment of the indebtedness evidenced by this Note is
and will at all times be subordinate to the rights of the holders of all loans comprising the Senior Mortgage
Loan (as defined in the following paragraph hereafter) and to the extent provided in any subordination
agreement that may be entered into by and among the Lender and any of the Senior Mortgagees (any
holder of a Senior Mortgage Loan(s)). This Note is and shall be subject and subordinate in all respects to
the liens, terms, covenants, and conditions set forth in such Senior Mortgage Loan Documents (those
documents of the Senior Mortgage Loans) and any subordination agreement(s), including the Keybank
Subordination.
For the purposes of this Note,"Senior Mortgage Loans"shall mean(i)that certain$12,500,000 loan made
by Florida Housing Finance Corporation ("Florida Housing") to the Borrower (the "First Mortgage
Loan"), (ii) any loan obtained by Borrower for the purpose of refinancing the First Mortgage Loan, and
(iii)that certain $7,800,000 loan by Florida Housing to the Borrower in connection with the Community
Development Block Grant—Disaster Recovery Program governed by 42 U.S.C. Section 5301, et seq.,the
2018 State of Florida Action Plan for Disaster Recovery and 24 C.F.R. Part 570 (the "Second Mortgage
Loan"), obtained by the Borrower in connection with the Borrower's financing of that certain affordable
housing, 82-unit residential building located at 4640 Santa Barbara Blvd., Naples, Collier County,
Florida and more commonly known as EKOS on Santa Barbara.
CONSTRUCTION AND VENUE: Each of the Borrower and Lender covenants and agrees that any and all
legal actions arising out of or connected with this Note shall be instituted in the Circuit Court of the Twentieth
Judicial Circuit, in and for Collier County, Florida, or in the United States District Court for the Middle
District of Florida,as the exclusive forums and venues for any such action,subject to any right of either party
to removal from state court to federal court(or vice versa),which is hereby reserved,and each of the Borrower
and Lender further covenants and agrees that it will not institute any action in any other forum or venue and
hereby consents to immediate dismissal or transfer of any such action instituted in any other forum or
venue. This Note is entered into within, and with reference to the internal laws of the State of Florida,and
shall be governed,construed,and applied in accordance with the internal laws(excluding conflicts of law)
of the State of Florida.
LOAN MEMORANDUM OF UNDERSTANDING (MOU): This Note is subject to the terms and
conditions of that certain MOU, and the terms and conditions of such MOU are incorporated by reference
herein to the same extent, force, and effect as if they were fully set forth herein. The terms of the MOU and
this Note should be construed in such manner as not to render any term meaningless or void. However, in
the event of a conflict between the terms of this Note and the MOU,the MOU shall govern.
LOAN PROVISIONS
• The loan has a term of not less than 30 years; and
• The affordable housing project being financed has an affordability period of not less than 30 years
after the project or assisted units are available for occupancy; and
[23-SOC-01106/1853806/1] Page 2 of 5 0
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16D
• For loans to finance projects expected to be eligible for the low-income housing credit (LIHTC)
under section 42 of the Internal Revenue Code of 1986 (the Code), the project owner must agree,
as a condition for accepting such a loan, to waive any right to request a qualified contract (as
defined in section 42(h)(6)(F) of the Code); and
• The project owner must agree to repay any loaned funds and interest to the entity that originated
the loan at the time the project becomes non-compliant, including if such project ceases to satisfy
the requirements to be a qualified low-income housing project (as defined in section 42(g) of the
Code) or a qualified residential rental project(as defined in section 142(d)of the Code),or if such
project fails to comply with any of the requirements of the extended low-income housing
commitment that are described in section 42(h)(6)(B)(i)-(iv) of the Code.
NONRECOURSE: Notwithstanding anything to the contrary, the Loan evidenced by this Note is
nonrecourse to the Borrower and its members, managers, officers, employees, agents, and affiliates and
none of Borrower,its members,managers,officers,employees,agents,or affiliates shall have any personal
liability for the payment of any portion of the indebtedness evidenced by this Note.
THIS NOTE ARISES OUT OF OR IS GIVEN TO SECURE THE REPAYMENT OF A LOAN
ISSUED IN CONNECTION WITH THE FINANCING OF AFFORDABLE HOUSING AND IS
EXEMPT FROM INTANGIBLE TAX PURSUANT TO SECTION 420.513(1), FLORIDA
STATUTES.
IN WITNESS WHEREOF, this Note has been duly executed by Borrower as of the day and year first
written above.
MHP Bembridge,LLC, a Florida limited
liability company
Witness#1 Signature By: MHP Bembridge Member,LLC,a Florida
limited liability company, its Managing
Member
Witness#1 Name Printed or Typed 11111
By:
W. Patrick McDowell
Witness#1 Post Address Chief Executive Officer
Witness#2 Signature
Witness#2 Name Printed or Typed
Witness#2 Post Address
[23-SOC-01106/1853806/1] Page 3 of 5
�'P
16D 1
PROMISSORY NOTE
EKOS ON SANTA BARBARA
Exhibit"A"
Legal Description
A PARCEL OF LAND LOCATED IN SECTION 4, TOWNSHIP 50 SOUTH, RANGE 26 EAST,
COLLIER COUNTY, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCE AT THE WEST QUARTER CORNER OF SECTION 4, TOWNSHIP 50 SOUTH,
RANGE 26 EAST, COLLIER COUNTY, FLORIDA; THENCE NORTH 88°49'24" EAST, A
DISTANCE OF 60.00 FEET TO THE EASTERLY RIGHT OF WAY LINE OF SANTA
BARBARA BOULEVARD, OF COLLIER COUNTY, FLORIDA; THENCE SOUTH 01°02'25"
EAST ALONG THE SAID EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA
BOULEVARD, A DISTANCE OF 120.00 FEET TO THE POINT OF BEGINNING OF THE
PARCEL OF LAND HEREIN DESCRIBED;THENCE NORTH 88°50'38"EAST LEAVING THE
SAID EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD, A
DISTANCE OF 343.48 FEET; THENCE SOUTH 00°47'41" EAST, A DISTANCE OF 481.27
FEET; THENCE SOUTH 88°55'35" WEST, A DISTANCE OF 341.42 FEET TO A POINT OF
THE EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD; THENCE
NORTH 01°02'25" WEST ALONG THE SAID EASTERLY RIGHT OF WAY OF SANTA
BARBARA BOULEVARD, A DISTANCE OF 480.77 FEET TO THE POINT OF BEGINNING.
[23-SOC-01106/1853806/1] Page 4 of 5 ()__-s()'
1 6 D 1
PROMISSORY NOTE
EKOS ON SANTA BARBARA
Exhibit "B"
Amortization Schedule
Amoriti2oticn Payment Schedule
Due Date Beginning Balance interest Principal !Ending Balance Payment Due
2025 5 893,626.24 $ - 5 - 5 693,826.24 5
2026 893,326.24 893,826,24
2027 893,826.2,1 - 8893,826.24
2028 893,826.24 - - 693,826.24
2029 893,826.24 - 893,626.24 •
2C3C 893,826.24 - - 393,826.24 -
2031 893,826.24 - 893,826,24
2032 893,826.24 - - 893,826.24 -
2033 693,826.24 - - 693,826.24
2034 893.826,24 - 893.626.24
2035 693,826.24 693.826,24 -
2036 8,93.626.24 - 89 ,826.24 -
2037 8893.826.24 - 893,826.24
2038 893,826.24 - 893,826.24
2039 S93.826.24 - 893,826.24
2040 293,8 26.24 - - 893,626.24 •
2041 893,826.24 - 893,826.24 -
2042 393,826.24 44,691.31 - 893,826.24 44,691.51
2043 893,626.24 44,691.31 - 89 3,326.24 44,691.31
2044 893,826.24 44,691.31 - 693,826.24 44,691.3:
2045 893,826.24 44,691.31 - 893,826.24 44,691.31
2046 893,826.24 44.691.31 - 893,826.24 44,691.3._
2047 893,826.2.4 44,691.3'1 - 893,826.24 44,691.31
2048 893,826.24 44,691.31 - 895,826.24 44,691.31
2049 693,626.24 44.691.31 - 893,826.24 44,691.31
2050 693,826.24 44,691.31 - 893.826.24 44,691.51
2051 893,826.24 44.691.31 - 893,826.24 44.691.31
2052 893,826.24 44,691.31 - 893,826.24 44..691.31
2053 893.826.24 44,691.31 893.826.24 44,691.31
2054 893,826.24 44,691.31 893,826.24 936.517.55
Total 5 580,987.06 $ 693,826.24 4 $ 1,474,613..30
Assumptions
• nc pa 5 893..826.24
-ern(years) 30
Annual Interest(yea 0%
Annual Interest(yea 5%
Principal forgiven No
[Due date shall be modified to reflect the Date of Disbursement and yearly thereafter]
[23-SOC-01106/1853806/1] Page 5 of 5
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16D 1
DECLARATION OF RESTRICTIVE COVENANTS FOR
EKOS ON SANTA BARBARA
This Declaration of Restrictive Covenants for EKOS on Santa Barbara (the "Covenant")
made this 11th day of June 2024 (the "Effective Date") by MHP BEMBRIDGE, LLC, a Florida
limited liability company(hereinafter referred to as"Project Sponsor"), having its principal office
at 777 Brickell Avenue, Suite 1300, Miami, Florida 33131, is in favor of Collier County, Florida
(hereinafter referred to as the "County"), having its principal address at c/o Office of the County
Attorney, 3299 Tamiami Trail East, Suite 800,Naples, FL 34112. Project Sponsor and the County
are sometimes collectively referred to as the"Parties" and singularly referred to as"Party."
RECITALS
WHEREAS,the Project Sponsor is the owner of a leasehold interest in the property legally
described in Exhibit"A", attached hereto and incorporated here ("Property"); and
WHEREAS, the Project Sponsor hereby agrees and covenants that the Project Sponsor's
leasehold interest in the Property (the "Leasehold Estate") shall be subject to the provisions,
covenants, and restrictions contained herein; and
WHEREAS, this Covenant is made for the express benefit of the County, and it shall
remain in full force and effect until released by the County; and
WHEREAS, the County has made an unsecured loan in the original principal amount of
[Eight Hundred Ninety-Three Thousand Eight Hundred Twenty-Six Dollars and Twenty-Four
Cents ($893,826.24)] from the Affordable Workforce Housing Fund (1075) established by the
County to Project Sponsor ("Loan") in connection with the construction of 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 affordable rental housing units in the community,to be known as EKOS on
Santa Barbara (hereinafter referred to as the "Project"), which consists of the new construction of
an affordable 82-unit residential building located at 4640 Santa Barbara Blvd., Naples, Collier
County, Florida; and
WHEREAS, the Project consists of a total of eighty-two (82) affordable residential
apartment units ("Units"); and
WHEREAS, the County's allocation of funds for the Project is subject to that certain
Promissory Note for EKOS on Santa Barbara dated fc,.a e 11 I, 2024 ("Promissory Note"),
Memorandum of Understanding Between Collier County and MHP Bembridge, LLC for
Development of Affordable Housing entered into June 11th, 2024 ("MOU"), and this Declaration
of Restrictive Covenants, all between the County and the Project Sponsor(collectively the"Loan
Documents"); and
[23-SOC-01106/1853804/1] Page 1 of 7
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16D 1
WHEREAS, the Board of County Commissioners approved the Loan Documents at its
meeting on June 11th, 2024, Agenda Item No. 16,0. 1 i' and the Clerk, as Custodian of the
Board's minutes and records holds the Loan Documents in trust; and
WHEREAS, Project Sponsor desires to make a binding commitment to assure that the
Project is maintained and operated in accordance with the provisions of the MOU and this
Covenant; and
WHEREAS, Project Sponsor, as a condition for receiving the Loan funds, is required to
record in the Public Records of Collier County, Florida, this Covenant obligating the Project
Sponsor, its successors, and assigns to maintain and operate the Project 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 Project Sponsor's Leasehold Estate and,unless released by the County,
is binding on the Project Sponsor's Leasehold Estate for the entire Affordability Period,as defined
herein, and is not merely a personal covenant of the Project Sponsor; and
NOW THEREFORE, Project Sponsor voluntarily covenants and agrees that the Project
shall be subject to the following restrictions that are intended and shall be deemed to be covenants
running with the Project Sponsor's Leasehold Estate and binding upon Project Sponsor, and its
heirs, transferees, successors and assigns as follows:
TERMS:
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: Not less than one hundred percent (100%) of the Units in the
Project shall be rent-restricted and occupied by households whose annual income does not exceed
an imputed income limit as defined in the Internal Revenue Code section 42(g). At least 40% of
the rent-restricted units in the project must be occupied by households whose income is no more
than 60%of AMI.The Project Sponsor must assign an imputed income limit to each rent-restricted
unit, and the imputed income limits must be a factor of ten between twenty percent and eighty
percent (20%, 30%, 40%, 50%, 60%, 70% or 80%) of area annual gross median income. The
average of imputed income limit for all rent-restricted Units shall not exceed sixty percent(60%)
of area annual gross median income.Area annual gross median income is the gross median income
for Collier County, Florida, adjusted for family size, as determined annually by the U.S.
Department of Housing and Urban Development, and in compliance with any extended low-
income housing (as such term is defined in Section 42(h)(6)(B) of the Internal Revenue Code) or
similar agreement entered into by Project Sponsor in connection with the Project as described in
the Memorandum of Understanding (Section 5.2). Rent-restricted Units means the gross rent for
the Unit cannot exceed thirty percent(30%) of the imputed income limit for that Unit. Additional
requirements for qualified low-income housing projects are enumerated in Internal Revenue Code
section 42(g) and the same are incorporated herein by reference.
Section 3. Term of Covenant: This Covenant is a covenant running with the Project
Sponsor's Leasehold Estate. This Covenant shall remain in full force and effect and shall be
[23-SOC-01106/1853804/1] Page 2 of 7
GPO
16D 1
binding upon the Project Sponsor, its successors, transferees, and assigns from the Effective Date
until the expiration of the Affordability Period. The Affordability Period of this Project will be
thirty (30)years commencing on( I, 2024 (the Date of Disbursement) as stated in the
MOU(the "Affordability Period"). Upon the expiration of the Affordability Period, this Covenant
shall immediately lapse and be of no further force and effect without the necessity of any other
written document or instrument. Notwithstanding the foregoing, upon the expiration of the
Affordability Period, the County shall prepare for recording an instrument evidencing the
expiration of and other termination of this Covenant in the Public Records of Collier County,
Florida.
Section 4.Prohibited Conveyances: Except as provided in the Loan Documents,the Project
Sponsor covenants and agrees not to transfer, sell, or otherwise assign its interest in the Project or
Leasehold Estate to a third party which is unaffiliated with any of the members of the Project
Sponsor or their respective members and/or affiliates (a "Prohibited Transfer") without the
County's prior written consent.
Notwithstanding anything to the contrary, and for avoidance of doubt, the following shall
be permitted and shall not require the written consent of the County:
(i) the transfer of the Project or the Project Sponsor's Leasehold Estate to an affiliate of
MHP Bembridge Member, LLC, a Florida limited liability(the"Managing Member") or
an affiliate (including a trust) of any member of the Managing Member,
(ii) the recording of a lien or encumbrance against the Project, the Leasehold Estate, or any
portion thereof, in connection with any financing for the Project, including any
refinancing,
(iii) the entering into of any agreements, licenses, leases, or otherwise with governmental
and/or non-governmental entities for the purpose of operating and/or developing the
Property (including, but not limited to, agreements/licenses/leases and agreements
agreements/licenses with cable and other service providers),
(iv) the encumbering of the Project, the Leasehold Estate, or any portion thereof with an
extended low-income housing commitment (as such term is defined in Section
42(h)(6)(B)of the Internal Revenue Code)for low-income housing tax credits,or similar
agreements required under Section 42 of the Internal Revenue Code,
(v) the leasing of the Units in the ordinary course of business,
(vi) the transfer of the membership interests of the members of the Project Sponsor among
each other,
(vii) the transfer of the membership interests of the investor member and/or special member
of the Project Sponsor, either directly or indirectly,to an affiliate of the investor member
of the Project Sponsor, as well as any transfers with CREA The Harmony on Santa
Barbara, LLC,
[23-SOC-01106/1853804/1] Page 3 of 7
16D 1
(viii)the transfer of the interests of the investor member and/or special member of the Project
Sponsor to the Managing Member or an affiliate of the Managing Member (or of its
members),
(ix) the transfer of the membership interest of the Managing Member in the Project Sponsor
to an affiliate(including a trust) of any member of the Managing Member,
(x) any transfer by W. Patrick McDowell ("McDowell"), Kenneth P. Lee ("Lee"), or
Christopher Shear ("Shear" and, together with McDowell and Lee, collectively the
"Managing Member Principals"), or any of their respective trusts or affiliates, of their
respective interests in the Project Sponsor to any one or more of the Managing Member
Principals or their respective trusts or affiliates,
(xi) any transfers, conveyances, encumbrances, or liens permitted under the terms of the
documents relating to any loan which is senior in priority to the Loan per the MOU, and
(xii) the removal of the Managing Member in accordance with the operating agreement of the
Project Sponsor.
For avoidance of doubt,the County hereby acknowledges and consents to any liens and/or
encumbrances affecting the Project and/or the Leasehold Estate existing as of the Effective Date.
Section 5. Repayment Upon Prohibited Transfer: The Project Sponsor covenants and
agrees that in the event of a Prohibited Transfer without County's prior written consent(except as
otherwise provided in the Loan Documents),the Project Sponsor shall, subject to the rights of any
senior lenders, immediately make payment to the County in an amount equal to the then-full
outstanding principal amount of the Loan funds disbursed and outstanding, with interest thereon
as provided in the Promissory Note, if any, and all unpaid fees, charges and other obligations of
the Project Sponsor due under any of the Loan Documents.
Section 6. Inspection and Enforcement: Subject to the MOU, it is understood and agreed
that any official inspector of the County 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 in whole or in part by a written instrument executed on behalf of the County and the
Project Sponsor, or their respective successors-in-interest. Should this instrument be modified,
amended or released, the County shall execute a written instrument in recordable form to be
recorded in the Public Records of Collier 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 Promissory Note.
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.
[23-SOC-01106/1853804/1] Page 4 of 7
16D 1
Section 10. Recordation: This Covenant shall be filed of record among the Public Records
of Collier County, Florida, at the sole cost and expense of the Project Sponsor.
Section 11. Covenant Running with the Leasehold Estate: 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 restriction and covenant running with the Project Sponsor's Leasehold Estate 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
Project Sponsor's Leasehold Estate. For the term of this Covenant, each and every contract, deed,
or other instrument hereafter executed conveying the Project Sponsor's Leasehold Estate or
portion thereof shall be deemed to 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 Project
Sponsor's Leasehold Estate 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 Collier
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 Collier County is not convenient.
Section 13. Costs, Including Attorney's Fees: In the event litigation, arbitration, or
mediation, between the Parties, 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, final settlement, or final judgment.
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
as of the day and year first above-written.
WITNESSES: PROJECT SPONSOR:
MHP BEMBRIDGE, LLC, a Florida limited
liability company
Print Name:
Post Office Address: By: MHP Bembridge Member, LLC, a Florida
limited liability company, its Managing
Member
Print Name:
Post Office Address:
B411111
y:
Print Name: W. Patrick McDowell
Title: Chief Executive Officer
Page 5 of 7
PO
16D 1
PROJECT SPONSOR'S ADDRESS:
MHP Bembridge,LLC
c/o McDowell Housing Partners, LLC
777 Brickell Avenue, Suite 1300
Miami, FL 33131
Attention: Christopher Shear
ACKNOWLEDGMENT
STATE OF FLORIDA )
COUNTY OF )
The foregoing instrument was acknowledged before me by means of physical presence this
day of , 2024 by W. Patrick McDowell as Chief Executive Officer of MHP
Bembridge Member, LLC, the managing member of MHP Bembridge, LLC. He is personally
known to me or has produced as identification.
Notary Public Signature
r:,'/ 7 ;i t , ' ,j: ?.)
Notary Public Printed Name
Notary Public Serial Number
AS TO COUNTY:
`','" � BOARD OF COUNTY COMMISSIONERS
Attest: � `- �: .
CRYSTAL K. KINZEL,,CLERK COLLIER CO TY, FLORIDA
i // By:
deputy ClerkMest as•{i,C -irm- ' Chri all, Chairman
.iigpatur- • iy
Appr as orm and Legality:
'4• Derek . Pe 4124'
Assist nt Co ,ty Attorney .
[23-SOC-01106/1853804/1] Page 6 of 7
GP
1 6 D 1
Exhibit"A"
Legal Description of the Property
A PARCEL OF LAND LOCATED IN SECTION 4, TOWNSHIP 50 SOUTH,RANGE 26 EAST,
COLLIER COUNTY, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCE AT THE WEST QUARTER CORNER OF SECTION 4,TOWNSHIP 50 SOUTH,
RANGE 26 EAST, COLLIER COUNTY, FLORIDA; THENCE NORTH 88°49'24" EAST, A
DISTANCE OF 60.00 FEET TO THE EASTERLY RIGHT OF WAY LINE OF SANTA
BARBARA BOULEVARD, OF COLLIER COUNTY, FLORIDA; THENCE SOUTH 01°02'25"
EAST ALONG THE SAID EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA
BOULEVARD, A DISTANCE OF 120.00 FEET TO THE POINT OF BEGINNING OF THE
PARCEL OF LAND HEREIN DESCRIBED; THENCE NORTH 88°50'38" EAST LEAVING
THE SAID EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD, A
DISTANCE OF 343.48 FEET; THENCE SOUTH 00°47'41" EAST, A DISTANCE OF 481.27
FEET; THENCE SOUTH 88°55'35" WEST, A DISTANCE OF 341.42 FEET TO A POINT OF
THE EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD; THENCE
NORTH 01°02'25" WEST ALONG THE SAID EASTERLY RIGHT OF WAY OF SANTA
BARBARA BOULEVARD,A DISTANCE OF 480.77 FEET TO THE POINT OF BEGINNING.
[23-SOC-0 1 1 06/1 853 804/1] Page 7 of 7
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16D 1
DRAFT 05/30/2024
Prepared by. and after recording
return to:
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
Attention: David 1v1. Lewis, Esq,
Doc. Stamp Tax: $0.00
Intangibles Tax: $0.00
SUBORDINATION AGREEMENT
FOR SUBORDINATE LOAN NOT SECURED
BY MORTGAGED PROPERTY
(Revised 3-15-2022)
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4882-)767-3I49
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Property Name: EKOS on Santa Barbara
SUBORDINATION AGREEMENT
FOR SUBORDINATE LOAN NOT SECURED
BY MORTGAGED PROPERTY
(Revised 3-15-2022)
THIS SUBORDINATION AGREEMENT ("Agreement") is entered into this 11th day of June
2024 (the "Execution Date"), by and between (i) U.S. Bank Trust Company, National
Association, a national banking association, successor-in-interest to U.S. Bank National
Association, as bond trustee (the "Bond Trustee") for the benefit of KeyBank National
Association, a national banking association, as holder of the Bonds, its successors and assigns
("Holder"; and together with Bond Trustee, the "Senior Lender"); and (ii) Collier County,
Florida. a subdivision of the State of Florida ("Subordinate Lender").
RECITALS
A. MHP Bembridge, LLC, a Florida limited liability company ("Borrower") is the
owner of a leasehold interest in certain land located in Collier County, Florida described in
Exhibit A ("Land"). The Land is improved with a multifamily rental housing project
("Improvements").
B. Borrower and Holder are parties to a certain Construction Loan and Permanent
Loan Agreement dated as of December 22, 2021 (as amended, the "CLPLA").
C. On or about December 1, 2021, the Florida Housing Finance Corporation, a public
corporation constituting a public body corporate and politic created,organized, and existing under
the laws of the State of Florida(with its successors,the"Issuer"), issued its Multifamily Mortgage
Revenue Bonds, 2021 Series P(The Harmony on Santa Barbara) in the amount of$12,500,000.00
(the "Bond") under and pursuant to a Trust Indenture, dated as of December 1, 2021 (the"Trust
Indenture"), by and between Issuer and Bond Trustee.
D. In connection with financing the Project, Borrower requested, and pursuant to the
terms of the CLPLA,Holder agreed,that Holder purchase the Bond in the amount of up to Twelve
Million Five Hundred Thousand and No/100 Dollars ($12,500,000.00). The Issuer is using the
proceeds of such purchase to make a loan to the Borrower in the amount of up to Twelve Million
Five Hundred Thousand and No/100 Dollars ($12,500,000.00) (the "Senior Loan") pursuant to
the terms of a certain Loan Agreement dated as of December 1, 2021 (as amended, modified or
supplemented, the "Bond Loan Agreement"; and together with the CLPLA, the "Senior Loan
Agreement") by and among the Issuer, the Bond Trustee and the Borrower. The Senior Loan is
evidenced by a Promissory Note dated December 22, 2021, executed by Borrower to the order of
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Issuer in the maximum principal amount of the Senior Loan (the "Senior Note"). Issuer has
assigned the Note to Bond Trustee for the benefit of Holder, as the owner of the Bond.
E. The Senior Loan is secured by a Leasehold Mortgage, Assignment of Leases and
Rents, Assignment of Contracts, Security Agreement, and Fixture Filing given by Borrower in
favor of Issuer and recorded in the Official Records of Collier County, Florida (the "Recording
Office"), on December 30. 2021, at Book 6065, Page 1 ("Senior Mortgage") encumbering the
Borrower's interest in the Land, the Improvements and related personal and other property
described and defined in the Senior Mortgage as the "Mortgaged Property."
F. Issuer assigned its interests in the Senior Mortgage to the Bond Trustee for the
benefit of Holder pursuant to an Assignment of Leasehold Mortgage and Collateral Loan
Documents dated as of December 22, 2021, and filed with the Official Records of Collier County.
Florida on January 6, 2022, at Book 6067, Page 2927.
G. Pursuant to a Promissory Note dated as of the Execution Date given by Borrower
to the order of Subordinate Lender(the "Subordinate Note"), Subordinate Lender has made or is
making a loan to Borrower in the original principal amount of $893,826.24 ("Subordinate
Loan"). In connection with the Subordinate Loan, Borrower is also executing in favor of
Subordinate Lender a certain Declaration of Restrictive Covenants for EKOS on Santa Barbara
dated as of the Execution Date ("Subordinate Covenant") encumbering all or a portion of the
Mortgaged Property.
H. The Subordinate Loan is an unsecured loan and is not secured by an interest in or
lien upon the Mortgaged Property. Except for the Subordinate Covenant(which will be recorded
in the Recording Office following the recording of the Senior Mortgage), no other document
evidencing the Subordinate Loan is or will be recorded.
I. The execution and delivery of this Agreement is a condition of Senior Lender's to
Subordinate Lender's making of the Subordinate Loan and Borrower's granting of the Subordinate
Covenant.
AGREEMENT
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is
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:
"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 guarantor of any of the Senior Indebtedness, any of their
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4882-1767-3149 O
16D 1
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 teen "Borrower" will not include Senior Lender if Senior Lender acquires title to
the Mortgaged Property.
"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
seeking of default interest, 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, or any other party liable for
any of the Subordinate Indebtedness or obligated under any of the Subordinate Loan
Documents.
"Enforcement Action Notice" means a Notice given from Subordinate Lender to Senior
Lender following one or more Subordinate Loan Default(s) after the expiration of any
applicable notice or cure periods provided for in the Subordinate Loan Documents, setting
forth in reasonable detail the Subordinate Loan Default(s) and the Enforcement Actions
proposed to be taken by Subordinate Lender.
"Lien"means any lien, encumbrance, estate or other interest, recorded against or secured
by the Mortgaged Property.
"Notice" means all notices, requests, demands, consents, approvals or other
communication pursuant to this Agreement provided in accordance with the provisions of
Section 10.
"Senior Indebtedness" means the "Indebtedness" as defined in the Senior Loan
Agreement.
"Senior Lender" means the "Lender" as defined in the Opening Paragraph. When any
other person or entity becomes the legal holder of the Senior Note and/or the Bond (as
applicable), such other person or entity will automatically succeed to their respective
interests as the Senior Lender.
"Senior Loan Documents" means the "Loan Documents" as defined in the CLPLA, 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 CLPLA or the Bond Loan Agreement.
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"Senior Note" means the "Senior Note" as defined in the Recitals of this Agreement,
together with any other evidence of the Senior Indebtedness and any replacement of the
Senior Note.
"Subordinate Covenant" has the meaning given in the Recitals.
"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 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 Loan Documents"means the Subordinate Note,the Subordinate Covenant,
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 Note" means the "Subordinate Note" as defined in the Recitals of this
Agreement, together with any other evidence of the Subordinate Indebtedness and any
replacement of the Subordinate Note.
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 Loan Default has occurred and is continuing.
(iii) The current unpaid principal balance of the Subordinate Indebtedness is
$893,826.24.
(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:
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4882-1767-3149 O
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(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.
(b) Subordination of Subrogation Rights. if Subordinate Lender, by indemnification,
subrogation or otherwise, acquires any Lien in 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 Mortgage Default. Until the occurrence of a Senior
Mortgage Default, Subordinate Lender will be entitled to retain for its own account
all regularly scheduled 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.
(d) Payments After Senior Mortgage 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:
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(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) 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 Loan
Default or commencement of an Enforcement Action will constitute a
waiver on the part of Senior Lender of any provision of the Senior Loan
Documents or this Agreement.
(iv) 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, subject, however, to the Board of County
Commissioners' standard process, as required by applicable state law, to
cause such remission and/or endorsement. 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.
4. Default Under Subordinate Loan Documents.
(a) Notice of Subordinate Loan Default and Cure Rights.
(i) Subordinate Lender will deliver to Senior 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 pursuant to this
Section 4(a) will affect the validity of any Notice given by Subordinate
Lender to Borrower.
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(ii) Senior Lender will have the right, but not the obligation, to cure any
Subordinate Loan Default,until such time,if ever, as Senior Lender delivers
to Subordinate Lender Senior Lender's Notice of written consent to an
Enforcement Action described in an Enforcement Action Notice given by
Subordinate Lender as a consequence of a Subordinate Loan Default.
(iii) Subordinate Lender acknowledges that all amounts advanced or expended
by Senior Lender to cure a Subordinate Loan 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) Subordinate Lender may not commence any Enforcement Action under the
Subordinate Loan Documents, until after:
(A) Subordinate Lender has delivered to Senior Lender an Enforcement
Action Notice with respect to such Enforcement Action.
(B) The delivery by Senior Lender to Subordinate Lender of Senior
Lender's written consent to such Enforcement Action by
Subordinate Lender.
(ii) Senior Lender will advise Subordinate Lender whether Senior Lender
consents to the Enforcement Action by Subordinate Lender within 180 days
following Senior Lender's receipt of the Enforcement Action Notice
(failure of Senior Lender to provide written consent to the Enforcement
Action within such 180-day period constitutes Senior Lender's refusal of
such consent). Subordinate Lender acknowledges that Senior Lender may
grant or refuse consent to Subordinate Lender's Enforcement Action in
Senior Lender's sole and absolute discretion.
(iii) Subordinate Lender acknowledges that the provisions of this Section 4(b)
are fair and reasonable under the circumstances, that Subordinate Lender
has received a substantial benefit from Senior Lender having granted its
consent to the Subordinate Loan, and that Senior Lender would not have
granted such consent without the inclusion of these provisions in the
Agreement.
(c) Cross Default. Subordinate Lender acknowledges that a Subordinate Loan Default
constitutes a Senior Mortgage Default. Accordingly, upon the occurrence of a
Subordinate Loan Default, Subordinate Lender will be deemed to have actual
knowledge of a Senior Mortgage Default. If Subordinate Lender notifies Senior
Lender in writing that any Subordinate Loan Default of which Senior Lender has
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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 Mortgage 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) Cure Rights.
(i) Subordinate Lender will have the right, but not the obligation, to cure any
Senior Mortgage Default during such period of time, if any, as Borrower is
permitted by the terms of the Senior Loan Documents to cure a Senior
Mortgage Default.
(ii) Subordinate Lender will not be subrogated to the rights of Senior Lender under
the under the Senior Loan Documents by reason of Subordinate Lender having
cured any Senior Mortgage Default.
(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 the 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.
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(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.
(c) Termination Upon Foreclosure. Subject only to Section 5(d), below, the lien of the
Subordinate Loan Documents will automatically terminate upon 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.
(d) Priority of Subordinate Covenant. Senior Lender and Subordinate Lender hereby
agree that, notwithstanding anything to the contrary set forth elsewhere herein,
following a foreclosure under the Senior Mortgage,a trustee's sale or other exercise
of a power of sale or similar disposition under the Senior Mortgage, or the
acceptance by Senior Lender of a deed to the Mortgaged Property in lieu of such a
foreclosure, trustee's sale, or similar disposition (each, a "Foreclosure Action"),
the Subordinate Covenant shall survive and the successor owner of the Mortgaged
Property shall acquire the Mortgaged Property subject to all of the terms and
conditions of the Subordinate Covenant, except as otherwise expressly provided in
this Section 5(d) as follows:
(i) No successor owner shall be obligated under the Subordinate Covenant to make
any payment under,or to otherwise comply with,any of the other Subordinate Loan
Documents.
(ii) The Foreclosure Action and the transfer of the Mortgaged Property pursuant to the
Foreclosure Action will not violate the limitations on transfers in the Subordinate
Covenant or require the approval of the Subordinate Lender. Neither the successor
owner initially acquiring title to the Mortgaged Property as a result of a Foreclosure
Action, nor its immediate successor in interest, shall be subject to any of the
limitations upon creation of indebtedness nor creation of any lien securing
indebtedness set forth in the Subordinate Covenant; provided that any subsequent
mortgagee or lienholder with respect to such indebtedness agrees that in the event
of foreclosure or deed in lieu of foreclosure, the transferee under such foreclosure
agrees that it will take subject to the Subordinate Covenant: and provided further
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that all other subsequent encumbrances shall be subject to Subordinate Lender's
approval under the Subordinate Covenant. Any sale, assignment or transfer of the
Mortgaged Property following a transfer pursuant to a Foreclosure Action shall be
subject to Subordinate Lender's rights under the Subordinate Covenant to approve
such transfer, except that Subordinate Lender agrees that its decision to approve
any such sale, assignment or other transfer will be based solely upon whether the
proposed transferee is qualified to manage and operate affordable housing projects
similar to the Mortgaged Property, and the Subordinate Lender will not
unreasonably withhold,delay or condition its consent to any such proposed transfer.
(iii) No successor owner would be obligated to pay, or otherwise have any liability for
or in connection with, any claim by Subordinate Lender for liquidated damages,for
indemnification or for damages in connection with any breach of any term or
provision of the Subordinate Covenant first occurring prior to the date upon which
such successor owner acquired title to the Mortgaged Property.
(iv) No successor owner shall be required to cure any default under the Subordinate
Covenant first occurring prior to the date upon which such successor owner
acquired title to the Mortgaged Property, except that each successor owner shall be
required to cure continuing defau1llts under the Subordinate Covenant related to the
Mortgaged Property; provided further, however, that each such successor owner
shall have 180 days after the date upon which it acquires title to the Mortgaged
Property to cure such continuing defaults, or, if any such continuing default is not
reasonably susceptible to a cure by such owner within such period, to commence
curing such default (and in such latter case, such owner shall thereafter
continuously and diligently pursue the cure of such default to completion).
(v) All reserve requirements imposed by the Subordinate Covenant shall, after any
Foreclosure Action, be deemed satisfied so long as comparable reserves are
established and held by the applicable successor owner's lenders; and
(vi) The Subordinate Lender, after a Foreclosure Action, shall not unreasonably
withhold, delay or condition any consent or approval contemplated by the
Subordinate Covenant.
6. Conflicts. If there is any conflict or inconsistency between the terms of the Subordinate
Loan Documents and the terms 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:
(a) Extend Borrower's time to cure any Senior Mortgage Default or Subordinate Loan
Default.
(b) Give Borrower the right to receive notice of any Senior Mortgage 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.
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7. Rights and Obligations of Subordinate Lender Under the Subordinate Loan
Documents and of Senior Lender under the Senior Loan Documents.
(a) 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 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
Senior 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.
(b) 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.
(c) Consent Rights. Whenever the Subordinate Loan Documents give Subordinate
Lender approval or consent rights with respect to any matter,and a right of approval
or consent for the same or substantially the same matter is also granted to Senior
Lender pursuant to the Senior Loan Documents or otherwise, Senior 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(c).
(d) Certification. Within 10 days after request by Senior Lender, Subordinate Lender
will furnish Senior 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: (a) Freddie Mac, any entity that is authorized
or licensed to underwrite, originate and deliver loans to Freddie Mac and any other
governmental agency who is the holder of any such refinanced debt, without the need for
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any new or further subordination agreement so long as such refinanced debt is assigned to
Freddie Mac within twelve (12) months of the date thereof, or(b) any other 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:
KeyBank National Association
4910 Tiedeman Road
Mailcode OH-01-51-05
Brooklyn, Ohio 44144
Attention: Community Development Lending
Telephone: (216) 689-5383
Fax: (216) 370-6307
U.S. Bank Trust Company, National Association
6410 Southpoint Parkway, Suite 200
Jacksonville, FL 322161
Attention: Vicki B. Bellamy
Telephone: (904) 358-5382
Email: vicki.bellamy@usbank.com
Notices intended for Subordinate Lender will be addressed to:
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Collier County, Florida
3339 Tamiami Trail East
Building H, Suite 211
Naples, FL 34112
Attention: Director. Community& Human Services
Telephone: 239-252-2486
(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. 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 as a joint venturer or partner of Subordinate Lender.
(c) Further Assurances. Upon Notice from Senior Lender, Subordinate Lender will
execute and deliver such additional instruments and documents, and will take such
actions, as are required by Senior 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.
(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.
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(g) Term. The term of this Agreement will commence 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 is avoided, set aside,rescinded or repaid by Senior Lender as
described in Section 2(e) of this Agreement.
(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.
(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
Agreement 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 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.
(I) 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.
(in) Mortgaged Property-Specific Agreement. Nothing in this Agreement is intended,
nor will it be construed, to in any way to have an effect on any lease, covenant.
Subordination Agreement Page 14
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agreement, or any other document by and between the Subordinate Lender and
Borrower not attached or subject to the stated Mortgaged Property, including but
not limited to, other properties in Collier County that the Borrower develops or will
develop, as well as the underlying ground lease between Collier County (in its
capacity as fee owner,and not in its capacity as Subordinate Lender)and Borrower.
[SIGNATURE AND ACKNOWLEDGMENT PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
Execution Date.
WITNESSES: SENIOR LENDER(HOLDER):
KeyBank National Association, a national banking
ei
�����y� � association
ame: Irl,;e liti ckS
Address: 40/ ) K'e de A ...____
/r co ki.lri Og WAY By: y,
Name: 'Ted Robinson
Title: Vice President
\('L'!,,iv A !I
Name: e'Li;'t '✓1WAV'k\
Address: W= i 1t) *law`
oh 1viLy1 ot 4'U44-
STATE OF O H I O )
) SS:
COUNTY OF CUYAHOGA)
The foregoing instrument was acknowledged before me this 23rd day of
May , 2024, by means of IX physical presence or ❑ online notarization, by
Ted Robinson , a(n) Vice President of KeyBank
National Association,a national banking association,on behalf of the national banking association.
Said person is [ ] personally known to me or [ ] has produced a valid driver's license as
identification.
[SEAL] ' � / C:k:I.A.t a¢,_.
Notary Public ,
Print Name: L.Mu,,�C c Zo-Lkcv\, Cc S'
Commission Expires: (.?t--1 `1 )4-•
N.tWie .y, LAURIE ZACHARIAS
?. Notary Public, Stare of Ohio
` : . -.,_-u :�,;-A Commission No. 2018-RE-757050
��^"' ,%': `; ` b/ My Commission Expires
� F', o?�' December 19, 2028
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WITNESSES: SENIOR LENDER(BOND TRUSTEE):
U.S. Bank Trust Company, National Association, a
national banking association, successor-in-interest to
Name: eryl Lear U.S. Bank National Association, as bond trustee
Address: 6410 Southpoint Parkway,
Suite 200 --�`
Jacksonville, Florida 32216 By:
Name: Vicki B. Bellamy l/
Title: Vice President
1601-11-P)—
Name: De or Lamb
Address: 6410 Southpoint Parkway,
Suite 200
Jacksonville, Florida 32216
STATE OF FLORIDA )
SS:
COUNTY OF DUVAL )
The foregoing instrument was acknowledged before me this day of
, 2024, by means of Chysical presence or ❑ online notarization, by
Vicki B. Bellamy, a(n) Vice President of U.S. Bank Trust Company, National Association, a
national banking association, on behalf of the national banking association. Said person is [✓]'
personally known to me or [ ] has produced a valid driver's license as identification.
[SEAL] dai . & /Ll
Notary Public
Print Name: Ihc wl4Clerrc
'�' ' LATASHA MCKLEVEY4 � y
Notary Public-State of Florida I Commission Expires: iy dl)./Cd'
:'� Commission#HI-I 284668 / f
4 • "- '' My Comm.Expires Jul 5,2026
imilimmosampoixik
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WITNESSES: SUBORDINATE LENDER:
BOARD OF C U TY COMMISSIONERS,
COLLIER Y, FL,RID
Name:
Address: By: I' d
Name: Ch al
Title: Chairman
Name: Approved as to Form and Legality:
Address:
ATTEST:
CRYSTAL K KINZki -CLERKuy Print a ze: D. Perry, Esq. - •
Title: ssist nt County Attorney <0\���
DEPUTY,CLERK'.A as a1 n's
ignature only
S TE OF FLORIDA )
SS:
COUNTY COLLIER )
The foregoing strument was acknowledged before me this I lth day of Jtme 2024, by
means of physical- present , y Chris Hall, Chairman of the Board of County Commissioners,
Collier County, Florida, on beha f the County. Said person is personally known to me.
Notar ublic
Print Name:
Commission Expires:
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CONSENT OF BORROWER
Borrower acknowledges receipt of a copy of this Subordination Agreement, dated
T,'i (( , 2024, by and among U.S. Bank Trust Company, National Association, a
national banking association, successor-in-interest to U.S. Bank National Association, as bond
trustee for the benefit of KeyBank National Association,a national banking association,as holder
of the Bonds: and Collier County, Florida, a subdivision of the State of Florida, and consents to
the agreement of the parties set forth in this Agreement.
WITNESSES: BORROWER:
MHP BEMBRIDGE, LLC, a Florida limited liability
company
Nam C1ey `�µr(Atit/tN
Address: -1J�?? �,,�(tc(( Ave S-�6 1390 By: MHP Bembridge Member, LLC, a Florida
/1{art+i f✓L, 3�13( limited liability company, its Managing Member
By: (
Name: Print Name: W. Patric_k N cI mar •`
Address: 7 17 q,,,Lke(( Ave, Sfr.1300 Title: Chief Executive Officer
/iav�1() F� 1/04
STATE OF 1—Ivci; j )
SS:
COUNTY OFWor
fl; E )
The foregoing instrument was acknowledged before me this 341day of .i itvtC
2024, by means ofphysical presence or ❑ online notarization, by W. Patrick McDowell, Chief
Executive Officer of MHP Bembridge Member, LLC, a Florida limited liability company, the
Managing Member of MHP Bembridge, LLC, a Florida limited liability company, on behalf of
the limited liability company. Said person is J personally known to me or [ ] has produced a
valid driver's license as identification.
[SEAL]
N6tary Puie-1 JANEr KAY DETERS Print Name:`1 Gfl 1-fit,1
:�y�f Notary Public•State o4 Florida
r'= Commission a'11433E71 Commission Expires: C2-li 9 7
?•n ' My Comm.Expires Aug 16,Z0Z7
3oncee through National Notary Assn.
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EXHIBIT A
LEGAL DESCRIPTION
The land referred to herein below Is situated in the County of Collier, State of Florida,and described as
follows:
A PARCEL OF LAND LOCATED IN SECTION 4, TOWNSHIP 50 SOUTH, RANGE 26 EAST, COLLIER
COUNTY, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE WEST QUARTER CORNER OF SECTION 4, TOWNSHIP 50 SOUTH, RANGE 26 EAST,
COLLIER COUNT!, FLORIDA; THENCE NORTH 88°49'24" EAST, A DISTANCE OF 60.00 FEET TO THE
EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD, OF COLLIER COUNTY, FLORIDA;
THENCE SOUTH 01°02'25" EAST ALONG THE SAID EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA..
BOULEVARD, A DISTANCE OF 120.00 FEET TO THE POINT OF BEGINNING OF THE PARCEL OF LAND
HEREIN DESCRIBED; THENCE NORTH H 88°50'38" EAST LEAVING THE SAID EASTERLY RIGHT OF WAY
LINE OF SANTA BARBARA BOULEVARD,A DISTANCE OF 343,48 FEET; THENCE SOUTH 00°47'41" EAST,
A DISTANCE OF 481.27 FEET; THENCE SOUTH 88°55'35" WEST, A DISTANCE OF 341.42 FEET TO A
POINT OF THE EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD; THENCE NORTH
01°02'25' WEST ALONG THE SAID EASTERLY RIGHT OF WAY OF SANTA BARB.ARA. BOULEVARD, A
DISTANCE OF 480.77 FEET TO THE POINT OF BEGINNING.
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