HomeMy WebLinkAboutDeclaration of Rest. CovenantsReturn recorded copy to:
City of Miami
Office of Zoning
444 S.W. 2nd Avenue, 4th Floor
Miami, FL 33130-1910
Document prepared by:
[Preparer Information]"**
DECLARATION OF RESTRICTIVE COVENANTS
FOR AFFORDABLE HOUSING RENTAL DEVELOPMENTS
This Declaration of Restrictive Covenants (the "Declaration") made this day of
, 2014, by [PROPERTY OWNER'***, a Florida Limited Liability company
("Owner") having an address at [ADDRESS'***, Mia►mi, Florida 33147, in favor of CITY
OF MIAMI, a municipal corporation of the State of Florida ("City"), having an address at
444 SW 2nd Avenue, Miami, Florida 33130.
WHEREAS, Owner hereby covenants that Owner is lawfully seized of that certain
real property located in the City of Miami, Miami -Dade County, Florida, assessed under
Folio Number: ***, legally described in Exhibit "A", attached
hereto and incorporated herein (the "Property"); that Owner intends to construct a multi-
family residential structure containing # of units (***) units with all units set aside for
residents qualifying for occupancy pursuant to Section 42 of the Internal Revenue Code,
including parking and additional amenities (collectively, the "Project"); and
WHEREAS, Owner has applied to City for the deferral of [AMOUNT TO BE
DEFERRED"*** and No/100 Dollars ($***,****.00) in building permit fees (hereafter
"building permit fee[s]") otherwise applicable to these Units, pursuant to the
requirements for deferral of building permit fees for extremely low income ("ELI")
affordable housing as set forth in the City of Miami Code of Ordinances (the "Code"),
including specifically, but not limited to Sections 10-5(b) and 13-16; and
WHEREAS, pursuant to Section 10-5(b) of the Code, a condition of the deferral
of building permit fees for affordable housing is that Owner must reasonably ensure that
the Project is reserved for "Affordable Housing" that also qualified as ELI as defined in
Section 10-5(b) of the Code and Section 3 herein; and
WHEREAS, Owner desires to defer said building permit fees until such time as
the Property no longer qualifies as an ELI affordable housing development pursuant to
Section 42 of the Internal Revenue Code, as described in Section 3, below; and
JMS Doc. No.: 504675
1
WHEREAS, the Owner, has submitted an eligible and timely Petition for an ELI
affordable housing deferral of building permit fees determination under Sections 10-5(b)
and 13-16 of the Code, which is found by City staff to be acceptable; and
WHEREAS, the Owner affirms that in the event certain units are later individually
purchased or owned, by establishing a condominium or co-operative under applicable
laws of the State of Florida, or any similar re -designation of the property, this
Declaration shall no longer apply and the building permit fees shall be due and payable
promptly at such time; and
WHEREAS, the Owner affirms that all portions of the development that do not
qualify for this deferral shall be paid in full prior to issuance of a building permit; and
WHEREAS, Owner, in fulfillment of that obligation hereby places certain
restrictions on the use of the Property;
NOW, THEREFORE:
1. Recitals. The recitals set forth above are true and correct and are
incorporated into this Declaration.
2. Covenant Running with the Land. This Declaration shall constitute a
covenant running with the land and be binding upon the Owner, its successors, heirs,
representatives and assigns, effective upon recordation in the Public Records of Miami -
Dade County, Florida, for an initial term of thirty (30) years. If the Owner remains in
compliance herewith, the term hereof may be extended for successive periods of ten
(10) years by recordable document executed by Owner and City, in form approved by
the City Attorney, unless sooner terminated in accordance with the provisions of this
Declaration including, without limitation, § 4. These restrictions shall be for the benefit
of, and a limitation upon, all present and future owners of the Property and for the public
welfare. This Declaration shall also serve as the ELI affordable housing building permit
fee deferral agreement under Sections 10-5(b) and 13-16 of the Code.
3. Restriction. Owner hereby declares that the Property shall be held,
maintained, transferred, sold, conveyed and owned subject to the following designations
and restrictive covenants:
Owner hereby agrees that [AMOUNT TO BE DEFERRED1
and No/100 Dollars ($***,***.00) in building permit and/or
administrative fees (the "building permit fees") have been
deferred for the construction of # of units (***) units of
affordable housing. In consideration, the Owner shall ensure
that the aforementioned units shall be rented to persons of
JMS Doc. No.: 504675
2
the general public qualifying for occupancy of affordable
housing, as defined herein and pursuant to the provisions of
Section 42 of the United States Internal Revenue Code. The
Project shall be qualified as "Affordable Housing" and "ELI"
so long as all units are rent -restricted and occupied by
households whose income does not exceed eighty percent
(30%) of area median income for Miami -Dade County,
adjusted for household size, as determined by the
Department of Housing and Urban Development on an
annual basis.
4. Termination. City, at the request of Owner or its successor or assigns,
shall cause a release of this Declaration to be executed and recorded in the Official
Records of Miami -Dade County, Florida upon payment of the building permit fees. The
City Manager or his successor is authorized to execute a release of this Declaration
upon payment of the building permit fees. Any release shall be in recordable form
acceptable to the City Attorney.
5. Monitoring. It is understood and agreed that any official inspector of the
City may after written notice have the right at any time during normal business hours to
enter upon the Property for the purpose of investigating the use of the Property and for
determining whether the conditions of this Declaration are being in compliance. An
action to enforce the terms and conditions of this Declaration may be brought by the
City and may be by action at law or in equity against any person or persons, entity or
entities, violating or attempting to violate the terms of this Declaration, either to restrain
violations or to recover the building permit fees. This enforcement provision shall be in
addition to any other remedies available under the law.
6. Non -Compliance. The building permit fees shall be come due and
payable by the then -current owner of the Project if and when it does not comply with
Section 3 herein after notice and 90 days to cure. Subject to applicable notice and cure
provisions, such payment shall be made in full within thirty (30) days following the date
on which the Project no longer qualifies as ELI Affordable Housing. Late payments
shall accrue interest at 18%0 per annum until fully paid. In the event the City or its
agents must institute a civil action to collect any funds due or enforce any obligation
under this instrument then City shall be entitled to recover its court costs and
reasonable attorneys' fees.
7. Modification or Termination. Any modification or deferral of any
provision of this Declaration shall not be effective unless modification or deferral is in
recordable form and signed by the Owner and the City, in form acceptable to and
signed by the City Attorney.
JMS Doc. No.: 504675
3
8. Costs. This Declaration, modifications, amendments, or releases
thereof, shall be recorded in the Public Records of Miami -Dade County, Florida, at the
cost of the Owner, and shall become effective upon recordation. The Owner shall
furnish a recorded copy of this Declaration to the City Department of Hearing Boards
within thirty (30) days of recordation. In the event the City or its agents must institute a
civil action to collect any funds due or enforce any obligation under this instrument then
City shall be entitled to recover its court costs and reasonable attorneys' fees.
9. Applicable Laws. Owner shall comply with all provisions of this
Declaration and of Chapters 10 and 13, City of Miami Code, as amended and all other
applicable Federal, State, and local laws, rules, and regulations, including without
limitation those related to affordable housing and the City of Miami Zoning Ordinance.
Any violation of said laws shall be deemed a violation of this Declaration.
10. City Funded Projects. In the event Owner receives any funding from
the City in the form of HOME, SHIP, CDBG or other subsidy, this Covenant shall be
interpreted to comport with all such City funding documents including but not limited to
any applicable Rent Regulatory Agreement or Declaration of Restrictive Covenants;
provided, however, in the event of any conflict between the terms of this Covenant and
the terms of the City funding documents, the terms of the document which imposes the
more stringent requirements shall control.
11. Subordination. This Agreement is subordinate to any mortgage loans
on the Property made by any governmental entity or agency made after the execution of
this covenant.
12. Headings. The article and paragraph headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. Governing Law. The Agreement shall be construed in accordance with
the laws of the State of Florida and any proceedings arising between the parties in any
manner pertaining or relating to this Agreement shall, to the extent permitted by law, be
held in Miami -Dade County, Florida.
14. Entire Agreement. This Declaration incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings
applicable to the matters relating to the ELI affordable housing building permit fee
deferral of the City and the parties agree that there are no other commitments,
agreements, or understandings concerning the ELI affordable housing building permit
fee deferral of this Declaration that are not contained in this Declaration. Accordingly,
the parties agree that no deviation from the terms hereof shall be predicated upon any
prior representation or agreements whether written or oral. It is further agreed, that no
JMS Doc. No.: 504675
4
modification, amendment, or alteration in the terms or conditions contained herein shall
be effective unless contained in a written document utilizing the same formalities as
were used in the execution of this Declaration.
15, Notice. Any notice required to be given herein shall be given by personal
delivery or by certified U.S. mail at the address specified below or at such other address
as may be specified in writing by the parties.
DEPARTMENT
Zoning Administrator
City of Miami
444 SW 2nd Avenue
Fourth Floor
Miami, Florida 33130
With a copy to:
Office of the City Attorney
City of Miami
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
JMS Doc. No,: 504675
OWNER
[OWNER NAME]
Address ***
Miami, Florida 331***
Attention:
With a copy to:
[IF APPLICABLE]
C/O
(SIGNATURES ON FOLLOWING PAGES)
5
Signed, witnessed, executed and acknowledged this day of , 2016.
Witnesses:
Print Name:
Print Name:
STATE OF )
)SS
COUNTY OF
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of
, 2016, by [OWNER], Personally Known or Produced Identification
Type of Identification Produced
My Commission Expires:
JMS Doc, No.; 504675
Print or Stamp Name:
Notary Public, State of
Commission No.:
6
CITY OF MIAMI, a municipal
corporation of the State of Florida
ATTESTED:
By:
Todd B. Hannon Daniel J. Alfonso
City Clerk City Manager
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
Sworn to and subscribed before me this day of
2016, by Daniel J. Alfonso, as City Manager of City of Miami, a municipal corporation of
the State of Florida. He is personally known to me or has produced
as identification.
My Commission Expires:
Notary Public, State of Florida
Print or Stamp Name
Commission No.:
Approved: Approved:
Community Development Department
(if applicable due to City of Miami
Community Development Dept. funding)
Approved as to legal form and correctness:
Victoria Mendez, Esq.
City Attorney
JMS Doc. No.: 504675
7
Zoning Administrator
JMS Doc. No.: 504675
EXHIBIT "A"
LEGAL DESCRIPTION
-8
JOINDER BY MORTGAGEE
(Where Applicable)
The undersigned (Name of Lending
Institution) , as Mortgagee
under that certain (Name of empowering
instrument) (the "Mortgage") dated this day of
, 20 , and recorded in Official. Records Book Page
of the Public Records of Miami -Dade County, Florida, covering all/or a portion of the
property described in the foregoing Affordable Housing Covenant (the "Covenant") does
hereby acknowledge that the terms of the Covenant are and shall be binding upon the
undersigned and its successors in title.
IN WITNESS WHEREOF, these presents have been executed this
day of , 20 .
(COMPANY NAME)
By:
Name:
Title:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
BEFORE ME, the undersigned authority, this day appeared
known by me to be the (Title) of (Name of Company) , a
(Company's tax designation, i.e. Florida Corporation) and he acknowledged to and
before me that she/he executed the said instrument, acting in his said official capacity, for and as to the
act and deed of said corporation and in its name, for the uses and purposes therein mentioned, and after
being duly authorized and directed. He is: [ ] personally known to me, or [ ] produced
as identification.
WITNESS my hand and official Seal in the County and State aforesaid, on this, the day of
20
My Commission Expires:
JMS Doc. No.: 504675
9
Notary Public State of Florida
Print Name
Return recorded copy to:
City of Miami
Office of Zoning
444 S.W. 2nd Avenue, 4th Floor
Miami, FL 33130-1910
Document prepared by:
DECLARATION OF RESTRICTIVE COVENANTS
FOR AFFORDABLE HOUSING DEVELOPMENTS
This Declaration of Restrictive Covenants (the "Declaration") made this day of
, 2015, by ***, a Florida Limited Liability company
("Owner") having an address at 3800 NW 22 Avenue, Miami, Florida 33142, in favor of
CITY OF MIAMI, a municipal corporation of the State of Florida ("City"), having an
address at 444 SW 2nd Avenue, Miami, Florida 33130.
WHEREAS, Owner hereby covenants that Owner is lawfully seized of that certain
real property located in the City of Miami, Miami -Dade County, Florida, assessed under
Folio Number: , legally described in Exhibit "A", attached
hereto and incorporated herein (the "Property"); that Owner intends to construct a
[INSERT # OF UNITS1*** set aside for residents qualifying for occupancy pursuant to
Section 42 of the Internal Revenue Code, including parking and additional amenities
(collectively, the. "Project"); and
WHEREAS, Owner has applied to City for the deferral of [AMOUNT TO BE
DEFERRED1*** and No/100 Dollars ($***) in building permit fees (hereafter "building
permit fees") otherwise applicable to this Unit, pursuant to the requirements for deferral
of building permit fees for extremely low income ("ELI") affordable housing as set forth
in the City of Miami Code of Ordinances (the "Code"), including specifically, but not
limited to Sections 10-5(b) and 13-16; and
WHEREAS, pursuant to Section 10-5(b) of the Code, a condition of the deferral
of building permit fees for ELI affordable housing is that Owner must reasonably ensure
that the Project is reserved for "Affordable Housing" that also qualifies as ELI as defined
in Section 10-5(b) of the Code and Section 3 herein; and
WHEREAS, Owner desires to defer said building permit fees until such time as
the Property no longer qualifies as an ELI affordable housing development pursuant to
Section 42 of the Internal Revenue Code, as described in Section 3, below; and
JMS Doc. No.: 528413-00
1
WHEREAS, the Owner, has submitted an eligible and timely Petition for an ELI
affordable housing deferral of building permit fees determination under Section 10-5(b)
and 13-16 of the Code, which is found by City staff to be acceptable; and
WHEREAS, the Owner affirms that all portions of the development that do not
qualify for this deferral shall be paid in full prior to issuance of a building permit; and
WHEREAS, Owner, in fulfillment of that obligation hereby places certain
restrictions on the use of the Property;
NOW, THEREFORE:
1. Recitals. The recitals set forth above are true and correct and are
incorporated into this Declaration.
2. Covenant Running with the Land. This Declaration shall constitute a
covenant running with the land and be binding upon the Owner, its successors, heirs,
representatives and assigns, effective upon recordation in the Public Records of Miami -
Dade County, Florida, for an initial term of thirty (30) years. If the Owner remains in
compliance herewith, the term hereof may be extended for successive periods of ten
(10) years by recordable document executed by Owner and City Manager, in form
approved by the City Attorney, unless sooner terminated in accordance with the
provisions of this Declaration including, without limitation, Section 4. These restrictions
shall be for the benefit of, and a limitation upon, all present and future owners of the
Property and for the public welfare. This Declaration shall also serve as the ELI
affordable housing building permit fee deferral agreement under Sections 10-5(b) and
13-16 of the Code.
3. Restriction. Owner hereby declares that the Property shall be held,
maintained, transferred, sold, conveyed and owned subject to the following designations
and restrictive covenants;
Owner hereby agrees that [AMOUNT TO BE DEFERRED]***
and No/100 Dollars $***) in building permit fees (the "building
permit fees") have been deferred for the construction of
[INSERT # OF UNITS1*** of ELI affordable housing. In
consideration, the Owner shall ensure that the
aforementioned unit[s] shall be sold to persons of the
general public qualifying for occupancy of affordable
housing, as defined herein and pursuant to the provisions of
Section 42 of the United States Internal Revenue Code. The
Project shall be qualified as ELI "Affordable Housing" so long
as the unit[s] is/are owned and occupied by households
JMS Doc, No.: 528413-00
whose income does not exceed eighty percent (30%) of area
median income for Miami -Dade County, adjusted for
household size, as determined by the Department of
Housing and Urban Development on an annual basis.
4. Termination. City, at the request of Owner or its successor or assigns,
shall cause a release of this Declaration to be executed and recorded in the Official
Records of Miami -Dade County, Florida upon payment of the building permit fees. The
City Manager or his successor is authorized to execute a release of this Declaration
upon payment of the building permit fees. Any release shall be in recordable form
acceptable to the City Attorney.
5. Monitoring. It is understood and agreed that any official inspector of the
City may after written notice have the right at any time during normal business hours to
enter upon the Property for the purpose of investigating the use of the Property and for
determining whether the conditions of this Declaration are being in compliance. An
action to enforce the terms and conditions of this Declaration may be brought by the
City and may be by action at law or in equity against any person or persons, entity or
entities, violating or attempting to violate the terms of this Declaration, either to restrain
violations or to recover the building permit fees. This enforcement provision shall be in
addition to any other remedies available under the law.
6. Non -Compliance. The building permit fees shall be come due -and
payable by the then -current owner of the Project if and when it does not comply with
Section 3 herein after notice and 90 days to cure. Subject to applicable notice and cure
provisions, such payment shall be made in full within thirty (30) days following the date
on which the Project no longer qualifies as ELI Affordable Housing. Late payments
shall accrue interest at 18% per annum until fully paid. In the event the City or its
agents must institute a civil action to collect any funds due or enforce any obligation
under this instrument then City shall be entitled to recover its court costs and
reasonable attorneys' fees.
7. Modification or Termination. Any modification or deferral of any
provision of this Declaration shall not be effective unless modification or deferral is in
recordable form and signed by the Owner and the City Manager, in form acceptable to
and signed by the City Attorney.
8. Costs. This Declaration, modifications, amendments, or releases
thereof, shall be recorded in the Public Records of Miami -Dade County, Florida, at the
cost of the Owner, and shall become effective upon recordation. The Owner shall
furnish a recorded copy of this Declaration to the City Department of Hearing Boards
within thirty (30) days of recordation. In the event the City or its agents must institute a
JMS Doc. No.: 528413-00
3
civil action to collect any funds due or enforce any obligation under this instrument then
City shall be entitled to recover its court costs and reasonable attorneys' fees.
9. Applicable Laws. Owner shall comply with all provisions of this
Declaration and of Chapters 10 and 13, City of Miami Code, as amended and all other
applicable Federal, State, and local laws, rules, and regulations, including without
limitation those related to affordable housing and the City of Miami Zoning Ordinance.
Any violation of said laws shall be deemed a violation of this Declaration.
10. City Funded Projects. In the event Owner receives any funding from
the City in the form of HOME, SHIP, CDBG or other subsidy, this Covenant shall be
interpreted to comport with all such City funding documents including but not limited to
any applicable Rent Regulatory Agreement or Declaration of Restrictive Covenants;
provided, however, in the event of any conflict between the terms of this Covenant and
the terms of the City funding documents, the terms of the document which imposes the
more stringent requirements shall control.
11. Subordination. This Agreement is subordinate to any mortgage loans
on the Property made by any governmental entity or agency made after the execution of
this covenant.
12. Headings. The article and paragraph headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. Governing Law. The Agreement shall be construed in accordance with
the laws of the State of Florida and any proceedings arising between the parties in any
manner pertaining or relating to this Agreement shall, to the extent permitted by law, be
held in Miami -Dade County, Florida.
14. Entire Agreement. This Declaration incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings
applicable to the matters relating to the ELI affordable housing building permit fee
deferral of the City and the parties agree that there are no other commitments,
agreements, or understandings concerning the ELI affordable housing building permit
fee deferral of this Declaration that are not contained in this Declaration. Accordingly,
the parties agree that no deviation from the terms hereof shall be predicated upon any
prior representation or agreements whether written or oral. It is further agreed, that no
modification, amendment, or alteration in the terms or conditions contained herein shall
be effective unless contained in a written document utilizing the same formalities as
were used in the execution of this Declaration.
JMS Doc. No.: 528413-00
4
15. Notice. Any notice required to be given herein shall be given by personal
delivery or by certified U.S. mail at the address specified below or at such other address
as may be specified in writing by the parties.
DEPARTMENT
Zoning Administrator
City of Miami
444 SW 2nd Avenue
Fourth Floor
Miami, Florida 33130
With a copy to:
Office of the City Attorney
City of Miami
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
JMS Doc. No.: 528413-00
OWNER
[OWNER NAME]
Address ***
Miami, Florida 331***
Attention:
With a copy to:
[IF APPLICABLE]
C/O
(SIGNATURES ON FOLLOWING PAGES)
5
Signed, witnessed, executed and acknowledged this day of , 2016.
Witnesses:
Print Name:
Print Name:
STATE OF
COUNTY OF
)SS
OWNER:
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of
2016, by , as , on behalf of
Personally Known or Produced Identification
Type of Identification Produced
My Commission Expires:
JMS Doc, No.: 528413-00
Print or Stamp Name:
Notary Public, State of
Commission No.:
6
ATTESTED:
CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Todd B. Hannon Daniel J. Alfonso
City Clerk City Manager
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
Sworn to and subscribed before me this day of
2016, by Daniel J. Alfonso, as City Manager of City of Miami, a municipal corporation of
the State of Florida. He is personally known to me or has produced
as identification.
My Commission Expires:
Notary Public, State of Florida
Print or Stamp Name
Commission No.:
Approved: Approved:
Community Development Department Zoning Administrator
Approved as to legal form and correctness:
Victoria Mendez, Esq.
City Attorney
JMS Doc. No,: 528413-00
7
EXHIBIT "A"
LEGAL DESCRIPTION
JMS Doc. No.: 528413-00
JOINDER BY MORTGAGEE
(Where Applicable)
The undersigned (Name of Lending
Institution) , as Mortgagee
under that certain (Name of empowering
instrument) (the "Mortgage") dated this day of
20 , and recorded in Official Records Book , Page
of the Public Records of Miami -Dade County, Florida, covering all/or a portion of the
property described in the foregoing Affordable Housing Covenant (the "Covenant") does
hereby acknowledge that the terms of the Covenant are and shall be binding upon the
undersigned and its successors in title.
IN WITNESS WHEREOF, these presents have been executed this
day of , 20
MORTGAGEE***
By:
Name:
Title:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
BEFORE ME, the undersigned authority, this day appeared
known by me to be the (Title) of (Name of Company) , a
(Company's tax designation, i.e. Florida Corporation) and he acknowledged to and
before me that she/he executed the said instrument, acting in his said official capacity, for and as to the
act and deed of said corporation and in its name, for the uses and purposes therein mentioned, and after
being duly authorized and directed. He is: [ ] personally known to me, or [ ] produced
as identification.
WITNESS my hand and official Seal in the County and State aforesaid, on this, the day of
, 20
My Commission Expires:
JMS Doc. No.: 528413-00
9
Notary Public State of Florida
Print Name