HomeMy WebLinkAboutExhibitThis instrument prepared by
and when recorded return to
Olga Ramirez-Seijas. Esq.
City Attorney's Office
City of Miami
444 SW 2nd Avenue
Miami. Florida 33130
(Space Above For Recorder's Use Only)
THIRD 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 108,000 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.
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At Owner's request, the City Commission, on December 15, 2005, adopted
Resolution No. 05- 0736 authorizing an amendment to the Original Covenant to
reduce the number of required affordable housing units to 28 and to provide a
minimum of 24 units as workforce housing units, as described in the Amended
Declaration of Restrictions dated May 9, 2006, recorded July 12, 2006 in Official
Records Book 24712, Page 396, of the Public Records of Miami -Dade County,
Florida (the "First Amendment") .
At Owner's request, due to ' market conditions, on March 8, 2007 the City
Commission adopted Resolution No. 07-0147 reducing the total number of residential
units under each Phase from 99 to 52, to eliminate market rate housing units but maintain
the required 24 workforce and 28 affordable housing units in each tower ; and
As a result of site plan requirements, it has been determined that the first
Residential Phase will consist of 56 residential units and the second Residential Phase
will consist of 48 residential units, ingtead of each having 52 residential units, thereby
requiring a modification of the Second Amended Declaration of Restrictions; filed May
25, 2007 as recorded in Official Records Book 25651, Page 2954 of the Public Records
of Miami -Dade County, Florida (the "Second Amendment").
At Owner's request, the Miami City Commission, on , 2007 adopted
Resolution No. 07- authorizing a reallocation of the total number of
residential units in each Phase so that the first Residential Phase would have at least 56
units consisting of at least 28 affordable housing units and 28 work force units, and the
second Residential Phase will have at least 48 residential units, consisting of at least 28
affordable housing units and 20 work force units, to adjust to the configuration of the
structures to be built in each Residential Phase, as shown on the site plan.
Owner hereby amends the Original Covenant, as amended by the First
Amendment and the Second Amendment, 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 the first Residential Phase shall contain at
least fifty-six (56) residential condominium units and the second
Residential Phase shall contain at least forty-eight (48) residential
condominium units, and shall be subject to the affordable housing
requirements set forth in Paragraph 3 below.
(2) Timing of Construction. The Owner hereby agrees that construction
of the first Residential Phase shall commence prior to commencement
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(3)
of construction of axle Commercial Component, and conclusive
compliance with this provision for the purposes hereof shall be
sufficiently evidenced liy (i) closing of a construction loan for the first
Residential Phase, (ii) either direct 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 & Workforce Housing. The Owner hereby
agrees that at least 28 of the 56 units in the first Residential Phase and
28 of the 48 units in the second 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 twelve (12) units in the first
Residential Phase, and eight (8) units in the second Residential Phase
shall be sold to families whose income does not exceed 150% of the
median income for Miami -Dade County and at least sixteen (16) units
in the first Residential Phase, and twelve (12) unitsin the Second
Residential Phase 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.,
governmentalgrants or, other economic incentives) in the amount of
$1,200,000 for the development of the second Residential Phase, then
all of the 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 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 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.
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(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 Assignment. 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
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
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(7)
(9)
provisions of this Declaration upon recordation in the public records
of Miami -Dade County, Florida, of a release by the City.
1
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.
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 Amendthent 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 a>ftempting 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
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 hereii 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.
(.
) Recording. This Declaration shall be filed of record in the public
records of Miami -Dade County Florida at the cost of the Owner.
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Signed, witnessed, executed and acknowledged this day of
2007_.
Witnesses: Wagner Square, LLC, a Florida
limited liability company
Print Name:
Print Name:
TATE OF FLORIDA
COUNTY OF MIAMI-DADE
}
}
By:
Name:
Title:
(SEAL)
The foregoing instrument was acknowledged before me this day of
, 2007 by , as of Wagner
Square, LLC, a Florida limited liability company, on ,behalf of the limited liability
company, who is personally known tb me or produced a valid driver's license as
identification.
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
State of Florida at Large (Seal)
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