Loading...
HomeMy WebLinkAboutExhibitAMENDMENT NO. 3 TO THE AGREEMENT BETWEEN CITY OF MIAMI AND FLAGLER FIRST CONDOMINIUMS, L.L.C. This Amendment is entered into this day of , 2008 (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"), 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 for Project redevelopment expenses (the "Grant"), as set forth more fully in the Agreement; and WHEREAS, the Grant is subject to the terms and conditions contained 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, Amendment No. 1 to the Agreement, dated June 15, 2005, City Commission Resolution 06- 0733, adopted December 14, 2006 and Amendment No. 2 dated February 8, 2007, the City and FFC agreed to an extension, until June 30, 2007, 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, Amendment No. 1 and Amendment No. 2, and any and all other documents executed in connection with the Grant, are hereinafter referred to as the "Grant Documents".); and WHEREAS, FFC has experienced further delays, which have resulted in a delay in the completion of the project; and WHEREAS, for the aforesaid reasons FFC has requested an extension until June 30, 2008 for the receipt of Project certificates of occupancy and until June 30, 2010 for the sale of all of the Project's residential condominium units; and it: Document 115993 1 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 of the Grant is $1,800,000. 3. The Grant Documents are hereinafter amended: (a) To provide that on or before June 30, 2008, FFC shall obtain all required certificates of occupancy and/or certificates of completion, as appropriate, for the Project. (b) To provide that on or before June 30, 2010, FFC shall sell all of the residential condominiums in the Project in accordance with the requirements of the Grant Documents, as amended hereby. (c) To provide that in the event that on or before June 30, 2008 FFC has obtained all required certificates of occupancy and/or certificates of completion, as appropriate, for the Project, then, in such event, interest shall cease to be charged on the amount of Grant funds disbursed as of the date of issuance of all such certificates of occupancy and/or certificates of completion. (d) To provide that in the event that on or before June 30, 2010 all of the residential condominiums in the Project have not been sold in accordance with the requirements of the Grant Documents, as amended hereby, then, in such event, FFC shall pay to the City $72,000 for each of the twenty-five (25) City Assisted Units identified in the Declaration of Restrictive Covenants, a copy of which is attached hereto as Exhibit A (the "Covenant"), that remains unsold as of that date. Such payment shall be made on or before July 15, 2010. For the purposes hereof, the term "sold" shall mean that title and possession to such residential condominium unit shall have been conveyed to such homebuyer. (e) To provide that resale restrictions will be imposed on the twenty-five (25) City Assisted residential condominium units in the Project, as described more fully in the Covenant. 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) 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 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. it: Document 115993 2 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, successor, 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 procedure based upon or arising out of any of the Grant Documents and/or this Amendment, or the dealings or the relationship between or among such persons or entities, or any of them. Neither FFC, 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 115993 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: Julie O. Bru, City Attorney IT-Flagler Amendment No. 3-04-08; 4-15-08 By: Date: Pedro G. Hernandez, City Manager it: Document 115993 STATE OF FLORIDA ) COUNTY OF MIAM1-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 , 2008. 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: 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 2008. 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 1.D. Type of I.D. Produced: My Commission Expires: it: Document 115993 This Instrument Prepared By and Return To: Ilene Temchin, Esq. City of Miami Office of the City Attorney 444 S.W. 2"d Avenue Miami, Florida 33130-1910 DECLARATION OF RESTRICTIVE COVENANTS Exhibit A This Declaration of Restrictive Covenants (the "Covenant") made as of the day of , 2008 by Flagler First Condominiums, L.L.C., a Florida limited liability company (hereinafter the "FFC"), is in favor of the City of Miami, a municipal corporation of the State of Florida (hereinafter the "City"). RECITALS WHEREAS, FFC has undertaken the redevelopment of an affordable housing condominium project, known as Flagler First Condominium, 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, the Project is located at 101 East Flagler Street, Miami, Florida, legally described on Exhibit 1 hereto (the "Property"). WHEREAS, in connection therewith, the City allocated $1,800,000 for Project redevelopment expenses (the "Grant); and WHEREAS, the Grant is subject to the requirements of that certain Agreement between the City and FFC, dated December 23, 2002, joined by Old Centrust Building Partnership, a Florida general partnership, Amendment No. 1 to the Agreement, dated June 15, 2005, Amendment No. 2, dated February 8, 2007 and Amendment No. 3, dated the date hereof (the Agreement, Amendment No. 1, Amendment No. 2 and Amendment No. 3 are jointly referred to herein as the "Agreement"); and WHEREAS, in accordance with the requirements of the Agreement, the twenty-five (25) residential condominium units identified on Exhibit 2 hereto (the "City Assisted Units") are subject certain resale restrictions for a period of thirty (30) years; and it: Document 115993 6 WHEREAS, FFC desires to make a binding commitment to assure that the City Assisted Units are sold in accordance with the provisions of this Covenant. NOW THEREFORE, FFC voluntarily covenants and agrees that the City Assisted Units shall be subject to the following restrictions that are intended and shall be deemed to be covenants running with the land and binding upon FFC, and its heirs, successors and assigns as follows: Section 1. 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. Term of Covenant: For each City Assisted Unit identified on Exhibit 2 hereof, this Covenant shall remain in full force and effect and shall be binding upon FFC, its successors and assigns, from the date hereof until thirty (30) years from the date of FFC's sale of such City Assisted Unit to a homebuyer at a sales price not in excess of ninety percent (90%) of the median Dade County new housing sales price at the time of the sale, as described more fully below in section 4 hereof (the "Covenant Period"). Section 3. Use of Property: Throughout the Covenant Period, the City Assisted units shall be sold at a sales price not in excess of ninety percent (90%) of the median Dade County new housing sales price at the time of the sale. Section 4. FFC covenants and agrees that each deed conveying a City Assisted Unit to a homebuyer shall contain the following restrictive covenant: "Until thirty (30) years from the date hereof (the "Covenant Period"), this property shall be sold at a sales price not in excess of ninety percent (90%) of the median Dade County new housing sales price at the time of the sale. Notwithstanding the foregoing, an owner of this property may sell it during the Covenant Period without regard to the restriction contained in the previous paragraph hereto upon repayment to the City of Miami (the "City") of the City funded subsidy for this property, in the amount of $72,000 (the "Recapture Requirement"), provided, however, that for each year that this property is owned by a homebuyer who purchased the property at a sales price not in excess of ninety percent (90%) of the median Dade County new housing sales price at the time of the sale, such Recapture Requirement shall be reduced by 3.33%. For the purposes hereof, the term "year" shall mean the period of time commencing one year from the date hereof, and on each subsequent anniversary thereof. " Section 5. Except as provided in the Agreement, FFC covenants and agrees not to encumber or convey any interest in the Project and/or the Property without the prior written consent of the City. For the purposes of this Covenant, any change in the ownership or control of FFC shall be deemed a conveyance of an interest in the Project. it: Document 115993 7 Section 6. FFC covenants and agrees that in the event (i) of the sale or conveyance of any interest in the Project and/or the Property without the City's prior written consent (except as provided in the Agreement), or (ii) that FFC ceases to exist as an organization, FFC shall immediately make payment to the City in an amount equal to the full amount of Grant disbursed and outstanding, all interest due thereon, and all unpaid fees, charges and other obligations of FFC due under any of the Grant documents. Section 7. Inspection and Enforcement: It is understood and agreed that any official inspector of the City shall have the right any time during normal working hours to enter and investigate the use of the Project to determine whether the conditions of this Covenant are being complied with. Section 8. Amendment and Modification: This Covenant may be modified or amended as to any portion of the Project by a written instrument executed on behalf of the City and by the then owner of the fee simple title to the land to be affected by such modification or amendment. 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. Section 10. Recordation: This Covenant shall be filed of record among the Public Records of Miami -Dade County, Florida, at the sole cost and expense of FFC. Section 11. This Covenant is a covenant running with the land. Thirty (30) years from the date of FFC's sale of each City Assisted Unit to a homebuyer at a sales price not in excess of ninety percent (90%) of the median Dade County new housing sales price at the time of the sale, this Covenant shall lapse and be of no further force and effect as to that City Assisted Unit. Section 12. All capitalized terms not defined herein shall have the meanings provided in the Agreement. IN WITNESS WHEREOF, FFC has caused this Declaration of Restrictive Covenants to be executed by its duly authorized officer 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 115993 8 ACKNOWLEDGMENT STATE OF FLORIDA )SS: COUNTY OF MIAMI-DADE ) THE FOREGOING INSTRUMENT was acknowledged before me on this day of , 2008 by , as of , on behalf of , who is personally known to me or who produced as identification and did/did not take an oath. Signature of Notary Public, State of Florida Printed Name of Notary Public My Commission Expires: it: Document 115993 9 EXHIBIT 1 Legal Description it: Document 115993 10 Exhibit 2 City Assisted Units 408 908 507 409 1008 607 508 506 707 509 606 807 608 706 907 609 806 1007 708 906 306 709 1006 808 407 it: Document 115993 11