HomeMy WebLinkAboutExhibitThis instrument prepared by
and when recorded return to
Olga Ramirez-Seijas, Esq.
City of Miami
City Attorney's Office
444 SW 2nd Ave. Suite 945
Miami, Florida 33130
(Space Above For Recorder's Use Only)
THIRD AMENDED DECLARATION OF RESTRICTIONS AND REVERTER
The undersigned is the Owner of the following described real property (the
"Property"), lying, being and situated in Miami -Dade County, Florida, and legally
described as:
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 (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, as more particularly described
below (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").
Simultaneously with the conveyance of the Property, Owner executed a
Declaration of Restrictions and Reverter recorded March 22, 2005 in Official
Records Book 23191, Page 1536-1540, of the Public Records of Miami -Dade
County, Florida (the "Original Declaration").
At Owner's request, the Miami City Commission, on December 15, 2005,
adopted Resolution No. 05-0736 authorizing a reduction in the number of required
affordable housing units in each Residential Phase from 52 to 28 affordable housing
units and 24 workforce housing units, while maintaining the total number of
residential units in each Residential Phase at 99.
ors:Document Third Amended Declaration of Restrictions and Reverter
At Owner's request, the Miami City Commission, on March 8, 2007 adopted
Resolution No. 07-0147 authorizing a further reduction in the total number of residential
units under each Phase from 99 to 52, thereby eliminating all the market rate housing
units but maintaining the required 24 workforce and 28 affordable housing units in each
tower, as provided in the Amended Declaration of Restrictions and Reverter filed May
25, 2007 at Official Records Book 25651, Page 2947, of the Public Records of Miami -
Dade County, Florida (the "Amended Declaration"). Resolution No. 07-0147 also
authorizes and directs the Owner to commence construction of the first Residential Phase
not later than June 10, 2008.
At Owner's request, the Miami City Commission, on October 11, 2007 adopted
Resolution No. 07-0588 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 workforce units, and the second Residential
Phase will have at least 48 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.
At Owner's request, the Miami City Commission, on June 5, 2008 adopted Resolution
No. 08- authorizing an extension of the date for commencement of
construction of at least one (1) of the Condominiums by from June 10, 2008 to
September 8, 2008.
Owner hereby amends the Original Declaration and the Amended
Declaration in its entirety, to extend the commencement date of construction of at
least one (1) of the Condominiums to September 8, 2008 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 Third Amended
Declaration of Restrictions (the "Declaration") covering and running with the title
to the Property as follows:
(1) Development of Condominium. The Owner hereby confirms, stipulates and
agrees that, in accordance with the site plan, two of the Phases shall be used
solely and exclusively as residential condominiums (the "Condominiums")
consisting of at least fifty—six (56) units and at least forty-eight (48) units,
respectively, subject to the affordable housing requirements set forth in the
Declaration of Restrictions dated March 10, 2005, recorded March 22, 2005
in Official Records Book 23191, Pages 1541-1546 of the Public Records of
Miami, Dade County, Florida, as amended by Amended Declaration of
Restrictions recorded July 12, 2006 in Official Records Book 24712, Pages
396-405, of the Public Records of Miami, Dade County, Florida, the Second
Amended Declaration of Restrictions filed May 25, 2007 at Official Records
Book 25651, Page 2954, of the Public Records of Miami -Dade County, Florida,
and the Third Amended Declaration of Restrictions, of even date herewith and
ors:Document Third Amended Declaration of Restrictions and Reverter
being recorded in the Public Records of Miami -Dade County, Florida,
simultaneously herewith.
(2) Covenant to Build and Timing. But for the Owner's agreement to develop
the Property as stated above in an efficient and timely manner, the City
would not have conveyed the Property to Owner. As such, the Owner hereby
agrees that (a) it shall commence construction of at least one (1) of the
Condominiums by September 8, 2008, such construction to be evidenced by
(i) closing of a construction loan, (ii) either direct evidence of sufficient
additional equity to complete construction of such Condominium or
certification from the institutional construction lender of availability of such
necessary equity, (iii) full building permit for the Condominium and (iv)
physical commencement of the work, and (b) Owner shall not be entitled to
commence construction of the Commercial Component prior to
commencement of at least one of the Condominium phases.
(3)
Reverter. In the event of a violation of Paragraph 2 above, the City shall be
entitled, (a) upon written notice to Owner and (b) upon reimbursement to
Owner as provided below, to cause title to the Property to revert to the City,
whereupon (i) Owner agrees to execute all documents necessary or desirable
to effectuate the reversion of title and (ii) the City shall pay to the Owner
out-of-pocket costs expended by Owner in connection with the
environmental remediation of the Property (as substantiated by Owner with
reasonable supporting documentation) in accordance with the project budget,
subject to a cap of $1,619,000.00, less any funds previously disbursed to
Owner by the City. Owner hereby appoints the City as its attorney -in -fact
with full power to execute and deliver, on Owner's behalf, all documents
necessary or desirable to effectuate the above reversion of title, should
Owner fail or refuse to do so.
Anything to the contrary notwithstanding, the City shall execute and deliver
to Owner a Release of Declaration of Restrictions and Reverter
simultaneously with (i) Owner's closing on a construction loan, and (ii)
presentation to the City of evidence that owner has complied with the
requirements of paragraph 2(a) hereof by delivering to the City the
following: (a) evidence of physical commencement of construction of the
first Condominium; (b) evidence of sufficient additional equity to complete
construction of such Condominium or certification from the institutional
construction lender of the availability of such necessary equity and; (c) a
copy of a full building permit for the Condominium. The form of Release
and Termination of Declaration of Restrictions and Reverter to be executed
by the City is attached hereto as Exhibit "B".
(4) 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.
ors:Document Third Amended Declaration of Restrictions and Reverter
(5)
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.
(6) 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 otherwise in
accordance with the provisions of Paragraph 3 herein.
(7)
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 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.
(8) Remedies. Each party 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.
(9)
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.
(10) Recording. This Declaration shall be filed of record in the public records
of Miami -Dade County, Florida at the cost of the Owner.
ors:Document Third Amended Declaration of Restrictions and Reverter
Signed, witnessed, executed and acknowledged this day of
2007.
Witnesses: Wagner Square, LLC, a Florida limited
liability company,
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
} SS:
By:
Print Name:
Title:
(SEAL)
The foregoing instrument was acknowledged before me this day
of , 2008 by , as _ of Wagner
Square, 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 identification.
Notary Public
Print Name:
Commission Expires:
ors:Document Third Amended Declaration of Restrictions and Reverter
JOINDER
The City of Miami, a municipal corporation of the State of Florida, hereby joins
in the foregoing Amended Declaration of Restrictions and Reverter for the sole purpose
of consenting to the recordation of this instrument.
Attest: City of Miami,
A municipal corporation
Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager
STATE OF FLORIDA
COUNTY OF MIAMI-DADE }ss:
The foregoing instrument was acknowledged before me this _ day
of , 2008 by Pedro G. Hernandez, City Manager of the City of
Miami, who is personally known to me or produced a valid driver's license as
identification.
NOTARY PUBLIC
Sign:
Print:
My Commission Expires:_____
State of Florida at Large (Seal)
Approved as to Form and Correctness:
Julie O. Bru, City Attorney U"'
ors:Document Third Amended Declaration of Restrictions and Reverter