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
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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)
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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
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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
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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
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Signed, witnessed, executed and acknowledged this day of
200
Witnesses:
limited
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
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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
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