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HomeMy WebLinkAboutExhibitAMENDMENT NO. 2 TO THE AGREEMENT BETWEEN CITY OF MIAMI AND FLAGLER FIRST CONDOMINIUMS, L.L.C. This Amendment is entered into this day of , 2006 (the "Amendment") by and between the City of Miami, a municipal .corporation of the State of Florida (the "City") and Flagler First Condominiums, L.L.C., a Florida limited liability company, having its offices at 48 East Flagler Street, Penthouse-5, Miami, Florida 33131 ("FFC"), joined by Old Centrust Building Partnership, a Florida general partnership, for the purpose of modifying that certain Agreement between the City and FFC dated December 23, 2002 (the "Agreement"). WHEREAS, FFC has undertaken the redevelopment of an affordable housing condominium project, known as Flagler First Condominium, located at 101 East Flagler Street, Miami, Florida, to consist of no less than ninety (90) affordable residential condominium units and approximately 7,000 square feet of retail space (the "Project"); and WHEREAS, in connection therewith, the City allocated $1,800,000 foie Project redevelopment expenses (the "Grant"), as set forth more fully in the Ag ipment; and WHEREAS, the Grant is subject to the terms and conditions c tained in various Grant documents, including, but not limited to, the Agreement, the Note and the Mortgage and Security Agreement (the "Mortgage") executed in connection therewith, WHEREAS, in accordance with the Agreement, FFC is required to obtain the Project certificates of occupancy and sell eighty-one (81) of the Project's residential condominium units by June 23, 2005; and WHEREAS, pursuant to City Commission Resolution 05-0371, adopted June 9, 2005 and Amendment No. 1 to the Agreement, dated June 15, 2005, the City and FFC agreed to an extension, until December 23, 2006, for FFC to obtain the Project certificates of occupancy and sell eighty-one (81) of the Project's residential condominium units. (Collectively, the Agreement, the Note, the Mortgage and Amendment No. 1, and any and all other documents executed in connection with the Grant, are hereinafter referred to as the "Grant Documents".) ; and WHEREAS, FFC experienced delays in conducting extensive structural testing as required by the City (including complete asbestos abatement), in vacating tenants and in bringing the building's premises to current hurricane/wind load and fire code requirements, which has resulted in a delay in the completion of the plans not initially contemplated; and WHEREAS, FFC experienced unexpected further delays due to further structural work required, hurricane preparations in 2005, sidewalk construction taking place on Flagler Street it:Document 50208 (5) 1 causing significant delays in the construction, and the difficulties associated with this site without the use of a staging area; and WHEREAS, for the aforesaid reasons FFC has requested an extension until June 30, 2007 for the receipt of Project certificates of occupancy and the sale of, eighty-one (81) of the Project's residential condominium units; and WHEREAS, the City and FFC desire and agree to amend the Agreement and the other Grant Documents as hereinafter provided; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and FFC agree as follows: 1. Each and every of the above recitals is true and correct. 2. FFC acknowledges that the outstanding principal balance on the Grant is $ 3. The Grant Documents are hereinafter amended: (a) To provide that FFC shall satisfy the following requirements on or before June 30, 2007: (i) obtain all required certificates of occupancy and/or certificates of completion (as appropriate) for the Project, and (ii) ,sell no less than eighty-one (81) of \ the residential condominiums in the Project in accordance with the requirementt.of Section 2502 of the Zoning Ordinance of the City of Miami, Florida, provided that the unsold units as of May 26, 2005 (listed on Exhibit "B" attached) will not be priced in excess otwo hundred thousand dollars ($200,000); and (b) To provide that in the event that, on or before June 30, 2007, FFC has not: (i) obtained all required certificates of occupancy and/or certificates of completion (as appropriate) for the Project, and (ii) sold no less than eighty-one (81) of the residential condominiums in the Project in accordance with the requirements of the Grant Documents, as amended hereby, then, in such event: (x) interest shall be charged on the amount Grant funds disbursed and outstanding for the period beginning on December 23, 2006 and continuing thereafter until both requirements described above have been fully satisfied, (y) interest shall be charged at the Federal Reserve Bank Prime Rate in effect on June 30, 2007, and (z) FFC shall pay such interest to the City beginning on July 30, 2007 for the period from December 23, 2006 until June 30, 2007, and every 30 days thereafter for the preceding 30 day period or any part thereof until both requirements set forth above have been fully satisfied. 4. FFC represents, warrants and confirms to the City that: (i) the Agreement as modified hereby is a valid obligation of FFC enforceable in accordance with its terms and is binding upon FFC, and its successors, assigns and administrators without any claim, defense of off -set or other sum due, pending or existing; (ii) all of the terms, covenants, conditions, representations, warranties and agreements contained in the Mortgage are hereby ratified and confirmed in all respects; (iii) certain obligations imposed on FFC under the Grant Documents shall continue to be secured by the Mortgage without novation or interruption; and (iv) the Mortgage is a valid obligation of Old Centrust Building Partnership enforceable in accordance it:Document 50208 (5) 2 with its terms and is binding upon Old Centrust Building Partnership, and its successors, assigns and administrators without any claim, defense of off -set or other sum due, pending or existing. 5. Except as modified herein, all terms and conditions of the Grant Documents shall remain in full force and effect. 6. If any provision of this Amendment conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified, or to be deleted if modification is inappropriate, to cause the provision to be consistent with the law or regulation. However, the obligations under this Amendment shall continue and all other provisions of this Amendment shall remain in full force and effect. 7. This Amendment shall be construed, interpreted, enforced and governed by and in accordance with the laws of the State of Florida. 8. This Amendment sets forth the entire agreement between the parties and supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral between the parties relating to the subject matter herein. 9. All capitalized terms used but not defined herein shall have their respective meanings set forth in the Grant Documents. 10. Waiver of Jury Trial. Neither FFC, nor any assignee, suecessor, heir or personal representative of FFC, nor any other person or entity, shall seek a jury trial in any lawsuit, proceeding, counterclaim or any other litigation proced('re-based upon or arising out of any of the Grant Documents and/or this Amendment, or the Oalings or the relationship between or among such persons or entities, or any of them. Neither FTC, nor any other person or entity will seek to consolidate any such action in which a jury trial has been waived with any other action. The provisions of this paragraph have been fully discussed by the parties hereto, and the provisions hereof shall be subject to no exceptions. No party to this Amendment has in any manner agreed with or represented to any other party that the provisions of this paragraph will not be fully enforced in all instances. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 to the Agreement on the day and year first above written. Witness: Print Name: Flagler First Condominiums, L.L.C., a Florida limited liability company By: Old Centrust Building Partnership, Florida general partnership, Sole Member By: Sergio Rok, Managing Partner Date: it:Document 50208 (5) 3 ATTEST: City of Miami, a municipal corporation of the State of Florida Priscilla A. Thompson, City Clerk Date: APPROVED AS TO FORM AND CORRECTNESS: Jorge L. Fernandez, City Attorney By: Date: Pedro G. Hernandez, City Manager Old Centrust Building Partnership, a Florida general partnership, joins in the execution of this Amendment No 2. as the owner of the Property (referred to in the Agreement as the "Property Owner") for the purpose of confirming its agreement to: (1) the amendments herein provided, and, (2) continue to comply with all obligations and requirements of the Grant Documents relating to the Property and the imp ovvments thereon that constitute all or any part of the Project. Old Centrust Building Partnership represents, warrants and confirms to the City that: (i) all of the terms, covenants, conditions, representations, warranties and agreements contained in the Mortgage are hereby ratified and confirmed in all respects; (ii) certain obligations imposed on FFC under the Grant Documents shall continue to be secured by the Mortgage without novation or interruption; and (iii) the Mortgage is a valid obligation of Old Centrust Building Partnership enforceable in accordance with its terms and is binding upon Old Centrust Building Partnership, and its successors, assigns and administrators without any claim, defense of off -set or other sum due, pending or existing. Witness: Print Name: IT-Flagler Amendment No. 2-09.13-06 Old Centrust Building Partnership, a Florida general partnership By: Sergio Rok, Managing Partner Date: it:Document 50208 (5) 4 STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) Before me, the undersigned authority, personally appeared, as, of , to me well known to be the person described in and who executed the foregoing instrument and who acknowledged to and before me that he/she executed said instrument under oath, and for the purposes therein expressed. Witness my hand and official seal in the County and State last aforesaid this day of , 2006. PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC NAME OF NOTARY PUBLIC STATE OF FLORIDA Did Take An Oath Did Not Take An Oath Personally Known Produced I.D. Type of I.D. Produced: My Commission Expires: 9.- STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) Before me, the undersigned authority, personally appeared, as, of , to me well known to be the person described in and who executed the foregoing instrument and who acknowledged to and before me that he/she executed said instrument under oath, and for the purposes therein expressed. Witness my hand and official seal in the County and State last aforesaid this day of , 2006. PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC NAME OF NOTARY PUBLIC STATE OF FLORIDA Did Take An Oath Did Not Take An Oath Personally Known Produced I.D. Type of I.D. Produced: My Commission Expires: it:Document 50208 (5) 5 STATE OF FLORIDA) COUNTY OF MIAMI-DADE ) Before me, the undersigned authority, personally appeared, } to me well known to as, of be the person described iaede utedxsaidensd trumene gunderoing noathmandent and forvho the purposesetherein ged to and before me that he/she expressed. Witness my hand and official seal in the County and State last aforesaid this day of , 2006. PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC NAME OF NOTARY PUBLIC STATE OF FLORIDA Did Take An Oath ~rDid Not Take An Oath Personally Known Produced I.D. Type of I.D. Produced: My Commission Expires: 6 it:Document 50208 (5)