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HomeMy WebLinkAboutExhibit 1This instrument prepared by and when recorded return to Olga Ramirez-Seijas, Esq City Attorney's Office City of Miami 444 SW 2"d Avenue Miami, Florida 33130 (Space Above For Recorder's Use Only) AMENDED DECLARATION OF RESTRICTIONS The undersigned is the Owner of the real property (the "Property") located in Miami -Dade County, Florida, legally described in Exhibit "A". See Exhibit "A" attached hereto and by this reference made a part hereof. The City of Miami (the "City") conveyed the Property to the Owner pursuant to that certain Purchase and Sale Agreement dated May 30, 2003, as amended (the "Agreement"); Pursuant to the Agreement, the Owner represented that it would develop the Property in three separate phases (each, a "Phase", and collectively, the "Phases") consistent with the site plan. In addition, and as a specific part of the consideration for the City's entering into the Agreement, the Owner agreed that the two residential Phases would be restricted solely to development of residential condominiums which would be sold predominantly as affordable housing, (each, a "Residential Phase") and one Phase would be developed as a commercial component consisting of approximately 80,000 square feet of commercial space (the "Commercial Component"). The Owner has also represented that it would commence construction of at least one (1) of the Residential Phases prior to commencement of construction of the Commercial Component. Simultaneously with the conveyance of the Property, Owner executed a Declaration of Restrictions, recorded March 22, 2005 in Official Records Book 23191, Pages 1541-1546 of the Public Records of Miami -Dade County, Florida (the "Original Covenant") to assure, among other things that at least 74 of the 99 units in each Residential Phase shall be sold predominantly as affordable housing units. At Owner's request, the City has agreed, by Resolution No. 05- adopted December , 2005, to reduce the number of required ors:Document 839 0S 19ti.3(.I 1 affordable housing units to 28 and to provide a minimum of 24 units as workforce housing units, as defined in the Resolution. Owner hereby amends the Original Covenant in its entirety, to read as set forth herein, and by joinder hereof, the City consents to such amendment. IN ORDER TO ASSURE the City that the representations made to it by the Owner regarding development of the Property will be abided by the Owner, the Owner freely, voluntarily and without duress makes this Declaration of Restrictions (the "Declaration") covering and running with title to the Property as follows: (1) Development of Condominium. The Owner hereby confirms, stipulates and agrees that each Residential Phase shall contain ninety- nine residential condominium units and shall be subject to the affordable housing requirements set forth in Paragraph 3 below. (2) Timint of Construction. The Owner hereby agrees that construction of at least one Residential Phase shall commence prior to commencement of construction of the Commercial Component, and conclusive compliance with this provision for the purposes hereof shall be sufficiently evidenced by (i) closing of a construction loan for the Residential Phase, (ii) eitherdirect evidence of sufficient additional equity to complete construction of such Residential Phase or certification from the institutional construction lender of availability of such necessary equity, (iii) full building permit for the Residential Phase and (iv) physical commencement of the work. Affordable Housing and Workforce Housing. The Owner hereby agrees that at least 28 of the 99 units in each Residential Phase (the "Affordable Housing Units") shall be sold predominantly as affordable housing units to individual third party purchasers who meet the following affordable housing income test criteria: (i) at least four (4) units must be sold to families whose income does not exceed 50% of the median income for Miami -Dade County, Florida, (ii) at least eighteen (18) units must be sold to families whose income does not exceed 80% of the median income for Miami -Dade County, Florida and (iii) at least six (6) units must be sold to families whose income does not exceed 120% of the median income for Miami -Dade County. Florida. Additionally, Owner agrees that at least ten (10) units shall be sold to families whose income does not exceed 150% of the median income for Miami -Dade County and at least fourteen (14) units will be sold to families whose income does not exceed 170% of the median income for Miami -Dade County, Florida ("Workforce Housing Units"). In the event that Owner is unable to obtain, after good faith effort, additional HOME Funds (i.e., governmental grants or other economic incentives) in the amount of $1,200,000 for the development of the second Residential Phase, then all of the (3) ors:Document 839 (2) 2 Affordable Housing Units in the second Residential Phase shall be sold to purchasers who meet the affordable housing income test criteria set forth in subparagraph, 3(iii) above. In order to ensure compliance with the requirements of this paragraph, the Owner shall obtain a written and sworn affidavit, in the form attached hereto as Exhibit "B", from the purchaser of each of the 28 Affordable Housing Units, certifying and confirming to the City the purchaser's compliance with the above described affordable housing income test criteria and, for at least the twenty four (24) Workforce Housing Units, in each Residential Phase, a written and sworn affidavit, from the purchaser of each such unit, in the form attached hereto as Exhibit "C", certifying and confirming to the City the purchaser's compliance with the applicable workforce housing income test criteria. For each Residential Phase, the Owner hereby represents that it shall not convey more than forty-seven (47) condominium units to third party purchasers who do not meet the above mentioned income criteria and the Owner shall provide a written and sworn affidavit for each of those units certifying that such unit purchaser is one of the permitted forty-seven (47) purchasers not required to meet the criteria set forth in this paragraph, (4) Continuous Construction. Upon commencement of construction of each Phase construction thereof shall be maintained on a continuous basis in good faith in order to timely complete construction of such Phase. (5) Covenant Against Assjgnment. The Owner shall not convey title to any Phase or any ownership interest in the Owner and/or the Property without the prior written consent of the City in its sole and absolute discretion (subject to the limitations related to the second residential Phase provided hereinafter). Notwithstanding the foregoing, the City's consent shall be deemed granted and the Owner shall be entitled to assign and convey interests in the Property under the following circumstances: (a) any assignment to a wholly owned subsidiary or affiliate of the Owner; (b) any assignment of a minority equity interest in the Owner to a third party investor, based on the City's eligibility requirements set forth below; (c) any conveyance to any institutional construction lender providing construction financing for such Phase or any institutional permanent lender providing financing for such Phase and/or any of their assigns or successors in title, and (d) any conveyance in accordance with the provision of Paragraph (3) of this Declaration. No assignment permitted by this paragraph (other than pursuant to Sub -paragraph (d) hereinabove) shall in anyway release the requirements of this Declaration. From and after the issuance of a certificate of occupancy for the first Residential Phase and the Commercial Component, the Owner may assign its interests in or title ors:Document 839 (2) 3 to the second Residential Phase with the City's prior written approval, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Owner expressly agrees that minority equity third party investors shall have not, as of the time when the assignment occurs or approval of the City is requested: (i) committed a material breach under any lease or other written agreement with City; (ii) had any criminal felony convictions within the immediately preceding ten (10) years, (iii) had a reputation (as evidenced by newspaper articles or other media reports of the mainstream press which are not subsequently retracted) for corrupt or unlawful business dealings; (iv) been named on any terrorist list; or (v) otherwise have been previously barred from doing business with the City. (6) Term. This Declaration is to run with the land and shall be binding on all parties and all persons claiming under it until all of the Affordable and Workforce Housing Units have been built, sold and conveyed to individual third party purchasers qualifying pursuant to the requirements of Paragraph (3) above, provided however, that each separate condominium unit shall be deemed released from the provisions of this Declaration upon recordation in the public records of Miami -Dade County, Florida, of a release by the City. Time is of Essence. The Owner acknowledges and agrees that time is of the essence with respect to each and every provision of this Declaration. (9) Covenant Running with the Land. This Declaration on the part of the Owner shall constitute a covenant running with the land and shall be recorded in the public records of Miami -Dade County, Florida and shall remain in full force and effect and be binding upon the Owner, and its successors and assigns until such time as the same is modified or released pursuant to the terms hereof. These restrictions during their lifetime shall be a restriction and limitation upon all present and future owners of the real property and for the public welfare. Modification Amendment Release. This Declaration may be modified, amended or released as to the land herein described, or any portion thereof, by a written instrument executed by the Owner and the City, or as described in Paragraph (6) hereof. (10) Enforcement. Enforcement shall be by action against any parties or person violating, or attempting to violate, any provision of this Declaration. This Declaration, and the acceptance hereof by the City, is not intended and should not be construed to confer any rights on any third parties other than the Owner and the City. The prevailing ors:Document 839 (2) 4 party in any action or suit, pertaining to or arising out of this Declaration, shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the Court may adjudge to be reasonable for the services of its attorney, at trial and appeal. This enforcement provision shall. be in addition to any other remedies available at law or in equity or both. (11) Remedies. Each party hereto shall have all rights, remedies and privileges available at law or in equity. All rights, remedies and privileges granted herein shall be deemed to be cumulative and the exercise of any one or more shall neither be deemed to constitute an election of remedies, nor shall it preclude either party from exercising such other additional rights, remedies or privileges. (12) Severability. invalidation of any one of these covenants, by judgment or Court, in no way shall affect any of the other provisions which shall remain in full force and effect. (13) Recording. This Declaration shall be filed of record in the public records of Miami -Dade County Florida at the cost of the Owner. 200 ors:Document 839 (2) 5 Signed, witnessed, executed and acknowledged this day of 200 Witnesses: limited STATE OF FLORIDA COUNTY OF MIAMI-DADE } } Wagner Square, LLC, a Florida liability company, By: Name: Title: (SEAL) The foregoing instrument was acknowledged.'' before me this day of , 200 by , as -..-.of Wagner *pare, pare, LLC, a Florida limited liability company,: on behalf of the limited liability company, who is personally known to me or produced a valid driver's license as idOptification. .My Commission Expires: SEAL] Notary Public Sign Name: Print Name: Serial No. (None, if blank): [NOTARIAL ors:Document 839 (2) 6