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HomeMy WebLinkAbout24458AGREEMENT INFORMATION AGREEMENT NUMBER 24458 NAME/TYPE OF AGREEMENT WYNWOOD WORKS, LLC & OMNI CRA DESCRIPTION DECLARATION OF RESTRICTIVE COVENANTS FOR WYNWOOD WORKS/AFFORDABLE HOUSING APARTMENT COMPLEX EFFECTIVE DATE May 25, 2023 ATTESTED BY TODD B. HANNON ATTESTED DATE 5/24/2023 DATE RECEIVED FROM ISSUING DEPT. 5/24/2023 NOTE Prepared by, and after recording return to: Victoria Mendez, Esq. City Attorney, City of Miami General Counsel, Omni CRA 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 2035, 2037 and 2043 North Miami Avenue, Miami, Florida DECLARATION OF RESTRICTIVE COVENANTS FOR WYNWOOD WORKS This Declaration of Restrictive Covenants for Wynwood Works (this "Covenant" or the "Declaration") made this 257-day of May, 2023 by WYNWOOD WORKS, LLC, a Florida limited liability company, at 2100 Coral Way, Suite 405, Miami, FL 33145 (hereinafter referred to as "Developer"), is in favor of the OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes, with a principal office located at 1401 N. Miami Avenue, Miami, FL, 33136 (hereinafter the "CRA"). RECITALS WHEREAS, the Developer is the Fee Simple Holder of the property legally described in Exhibit A, attached and incorporated hereto (the "Property"); and WHEREAS, the Developer hereby agrees and covenants that the Property shall be subject to the provisions, covenants, and restrictions contained herein; and WHEREAS, this Covenant is made for the express benefit of the CRA, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes, its lawful successors in interest and assigns. This Covenant shall remain in full force and effect until released by the CRA in accordance with the terms hereof; and WHEREAS, the Developer is developing an affordable housing apartment complex with approximately 120 apartment units (individually, an "Apartment Unit" and collectively, the "Apartment Units") and approximately 4,550 square feet of ground floor commercial space (the "Commercial Space") which shall be known as Wynwood Works (the "Project"); and WHEREAS, Developer desires to make a binding commitment to assure that the Project and the Property in general are maintained and operated in accordance with the provisions of the Agreement for Development of Property dated as of November 5, 2020, as amended (the "Development Agreement") and this Covenant. WHEREAS, Developer, as a condition for receiving the award for the development of the Property is required to record in the Public Records this Covenant obligating the Developer, its successors, and assigns to maintain and operate the Property in accordance with the Development Agreement; and 0 WHEREAS, the Developer hereby declares that this Covenant shall be and is a covenant running with the Property and, unless released by the CRA, is binding on the Property for the entire Term (as such term is defined below), and is not merely a personal covenant of the Developer; and NOW THEREFORE, Developer voluntarily covenants and agrees that each individual Apartment Unit and the Property in general shall be subject to the following restrictions that are intended and shall be deemed to be covenants running with the land and binding upon Developer, and its heirs, successors and assigns as follows: Section 1. Recitals: 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. Definitions: The following terms shall have the respective meanings set forth below: "Applicable Income Limit" means, with respect to Lower -Income Tenants, the applicable income limit set forth in the definition of "Lower -Income Tenants" herein, with respect to "Modest -Income Tenants" the applicable income limit set forth in the definition of "Modest - Income Tenant" herein and with respect to Moderate -Income Tenants, the applicable income limit set forth in the defmition of "Moderate -Income Tenants" herein. "Available Units" means residential units in the Project that are actually occupied and residential units in the Project that are unoccupied and have been leased at least once after becoming available for occupancy, provided that a residential unit that is not available for occupancy due to renovations is not an available unit and does not become an available unit until it has been leased for the first time after the renovations are completed. "Commercial Space Master Lease" shall mean that certain Master Lease Agreement dated as of even date herewith, by and between Developer, as Landlord thereunder, and Commercial Space Master Lease Tenant, as Tenant thereunder, whereby Developer leases to Commercial Space Master Lease Tenant all of the Commercial Space at the Project. "Commercial Space Master Lease Tenant" means Wynwood Works Manager, LLC, a Florida limited liability company, an affiliate of Developer. "Commercial Subtenants" shall mean subtenants of Commercial Space Master Lease Tenant, in connection with the Commercial Space. "CRA Commercial Rent Payment" shall have the meaning set forth in Section 6 of this Covenant. "Lower -Income Tenants" means one or more natural persons or a family, whose income, does not exceed thirty percent (30%) of the then current median family income for Miami -Dade County, Florida ("County"), Standard Metropolitan Statistical Area, as published annually by the Department of Housing and Urban Development ("HUD"), including adjustments for family size. "Moderate -Income Tenants" means one or more natural persons or a family, whose income, does not exceed, one hundred twenty percent (120%) of the then current median family income for the County, Standard Metropolitan Statistical Area, as published annually by HUD, including adjustments for family size. 2 "Modest -Income Tenants" means one or more natural persons or a family, whose income, does not exceed fifty percent (50%) of the then current median family income for the County, Standard Metropolitan Statistical Area, as published annually by HUD, including adjustments for family size. Section 3. Use of Property/Project Restrictions: All of the Apailnient Units (other than one or two units that may be occupied by a resident manager and/or maintenance personnel) will be rented or available for rent on a continuous basis to members of the general public, and the Developer will not give preference to any particular class or group of persons in renting the Apaitnient Units in the Project, except to the extent that units are required to be leased or rented to Lower -Income Tenants, Modest -Income Tenants or Moderate -Income Tenants. The Developer may reduce the total number of Apartment Units by up to 15% with the approval by the CRA Executive Director. Subject to the terms of this Covenant, the Developer hereby covenants that during the Term, (i) at least ten percent (10%) of the Available Units (i.e., 12 units) shall be occupied by Lower -Income Tenants; (ii) at least ten percent (10%) of the Available Units (i.e., 12 units) shall be occupied by Modest -Income Tenants; and (iii) the balance of the Available Units (i.e., 96 units) may be occupied by Moderate -Income Tenants. For purposes of this Covenant, a unit occupied by an individual or family who at the commencement of the occupancy of such unit is a Lower -Income Tenant, Modest -Income Tenant or Moderate -Income Tenant shall be counted as occupied by a Lower -Income Tenant, Modest -Income Tenant or a Moderate -Income Tenant, as the case may be, during such individual's or family's tenancy in such unit, even though such individual or family ceases to be a Lower -Income Tenant, Modest -Income Tenant or a Moderate -Income Tenant, as the case may be. In addition, a vacant unit that was occupied by a Lower -Income Tenant, Modest - Income Tenant or a Moderate -Income Tenant shall be counted as occupied by a Lower -Income Tenant, Modest -Income Tenant or a Moderate -Income Tenant, as the case may be, until it is reoccupied other than for a temporary period of not more than thirty-one days, at which time the unit shall be considered to be occupied by a Lower -Income Tenant, Modest -Income Tenant or a Moderate -Income Tenant only if the individual or family then occupying the unit satisfies the definition of a Lower -Income Tenant, Modest -Income Tenant or a Moderate -Income Tenant, as the case may be. Section 4. Term of Covenant: This Covenant is a covenant running with the land. This Covenant shall ,remain in full force and effect and shall be binding upon the Developer, its successors and assigns from the date hereof until fifty (50) years from the effective date of the Development Agreement (the "Term"). Upon the expiration of the Term, this covenant shall automatically terminate; and, the CRA shall prepare and submit for recording an instrument evidencing the expiration of and other termination of this Covenant in the Public Records of Miami -Dade County, Florida. Section 5. Prohibited Conveyances: Except for the Commercial Space Master Lease or as otherwise expressly and specifically provided in the Development Agreement, including the allowed additional financing described therein, and any refmancing thereof, the Developer covenants and agrees not to encumber or convey any interest through sale or lease in the Project, the Property, or any portion thereof, without the prior written consent of the CRA as provided for in the Development Agreement except that the Developer may enter into easements needed for the 3 development of the Project and tenant leases relating to the Project's Apartment Units and the Commercial Space or finance or refinance the debt relating to the Property. The CRA is entitled to the right of first refusal described in Section 18.2 of the Development Agreement in the event of a sale of the Property as set forth below in this Section 5. For the purposes of this Covenant, any change in the ownership or control of the Developer (other than a Greystone Equity Foreclosure (as defined below)), which is not permitted under the Development Agreement or under any other agreement between the Developer and the CRA including this Agreement, shall be deemed a conveyance of an interest in the Project. Notwithstanding the foregoing or anything to the contrary contained herein or in the Development Agreement, the following shall be expressly permitted hereunder, shall not constitute a sale or transfer and shall not require the written consent of the CRA: (i) a Greystone Equity Foreclosure, or (ii) a transfer by RBC Community Investments, LLC, an Illinois limited liability company (together with its successors and assigns, "Investor Member"), of its membership interests in the Developer in accordance with the terms of the Developer's Amended and Restated Operating Agreement dated as of even date herewith (the "Operating Agreement") or the Purchase Option Agreement between the Developer, Wynwood Works Manager, LLC, a Florida limited liability company, the Investor Member and RBC Community Investments Manager II, Inc., a Delaware corporation, and for the avoidance of doubt, the foregoing transfers shall not give rise to the CRA's right of first refusal set forth in Section 18.2 of the Development Agreement. As used herein, the term "Greystone Equity Foreclosure" means a foreclosure by Greystone Affordable Development RE Holdings LLC, a Delaware limited liability company (or its affiliate) ("Greystone Developer"), upon the membership interests of Wynwood Works Manager, LLC, a Florida limited liability company ("Magellan Partner") in the Developer, pursuant to the terms and provisions of that certain Pledge and Security Agreement, dated of even date herewith, given by Magellan Partner in favor of Greystone Developer, and the Operating Agreement. Notwithstanding anything to the contrary set forth in the Development Agreement, including without limitation Article 18, in the event of a Greystone Equity Foreclosure, the CRA right of first refusal set forth in Section 18.2 of the Development Agreement shall not apply. If, at any time prior to the expiration of the Term of this covenant, Developer shall receive a bona fide offer to purchase all of the Property that Developer desires to accept (the "Offer"), Developer shall promptly provide a copy of such Offer to the CRA and the CRA shall have forty- five (45) days after receipt of such Offer (the "Offer Response Period") to elect to purchase the Property on the terms and conditions set forth in the Offer. If the CRA elects to so purchase the Property, the CRA shall give to Developer written notice thereof ("Acceptance Notice") within the Offer Response Period. If CRA delivers an Acceptance Notice as provided herein, then Developer and CRA shall, within thirty (30) days after such delivery, enter into a purchase and sale agreement pertaining to the purchase and sale of the Property (the "Purchase and Sale Agreement"), reflecting the exact terms of the Offer. The parties agree to act reasonably and cooperatively in negotiating, executing and delivering the Purchase and Sale Agreement. If the CRA fails to deliver an Acceptance Notice during the Offer Response Period, then the CRA shall be deemed to have elected to not purchase the Property. In the event that either (i) the CRA shall fail to timely deliver an Acceptance Notice or (after timely delivering an Acceptance Notice) the CRA shall fail to timely execute the Purchase and Sale Agreement, or (ii) the CRA shall elect (or shall be deemed to elect) not to so purchase the Property during the Offer Response Period, then the Developer may thereafter sell the Property to the person or entity making such Offer without offering it to CRA. 4 Section 6. Commercial Space Master Lease/CRA Payment. CRA hereby acknowledges the terms of the Commercial Space Master Lease. CRA agrees that the calculation of the CRA Payment shall only be based on the rent that the Commercial Space Master Tenant receives from the Commercial Subtenants. CRA further agrees that any sums paid to the CRA by the Commercial Space Master Lease Tenant shall, for purposes of the Development Agreement, be deemed to be a CRA Payment paid by the Developer. All references hereunder to the terms: (i) Commercial Subtenants, shall have the same meaning as the term "Retail Tenants" for purposes of the Development Agreement, and (ii) Commercial Space, shall have the same meaning as the term "Retail Space" for purposes of the Development Agreement. Section 7. Inspection and Enforcement: It is understood and agreed that any official inspector of the CRA or the City of Miami may have the right at any time during normal working hours of the CRA or the City of Miami's inspector, provided that proper advance notice is given to tenants of occupied units, to enter upon the Property for the purpose of investigating the use of the Property, and for determining whether the conditions of this Declaration and the requirements of the City's building and zoning regulations are being complied with. An action to enforce the terms and conditions of this Declaration may be brought by the CRA or the City of Miami and may be by action at law or in equity against any party or person violating or attempting to violate any covenants of this Declaration or provisions of the building and zoning regulations, either to restrain violations or to recover damages. This enforcement provision shall be in addition to any other remedies available under the law. Each party shall bear their own attorney's fees and related legal costs. Section 8. Amendment and Modification: This Covenant may only be modified, amended, or released as to any portion of the Property by a written instrument executed on behalf of the CRA and the Developer. Should this instrument be modified, amended or released, the Executive Director shall execute a written instrument in recordable form to, be recorded in the Public Records of Miami -Dade County, Florida, effectuating and acknowledging such modification, amendment, or release. Such instrument shall be in a form acceptable to the CRA. Section 9. Definitions: All capitalized terms not defined herein shall have the meanings provided in the Development Agreement. Section 10. Severability: Invalidation of one of the provisions of this Covenant by judgment of Court shall not affect any of the other provisions of this Covenant, which shall remain in full force and effect. Section 11. Recordation: This Covenant shall be filed among the Public Records of Miami - Dade County, Florida, at the sole cost and expense of the Developer. Developer shall furnish a certified copy of the recorded Declaration to the CRA and the Office of the City Attorney within thirty (30) days of recordation. This Covenant shall be promptly submitted for recordation by the Developer within ten (10) days of its date of full execution. Section 12. Deed Restriction/Covenant Running with the Land. This Covenant touches and concerns the Property, it shall run with the land, and be binding on the Developer, its heirs, successors, and assigns. Any and all requirements of the laws of the State of Florida that must be satisfied in order for the provisions of this Covenant to constitute covenants running with the land shall be satisfied in full, and any requirements or privileges of estate are intended to be satisfied, or in the alternate, an equitable servitude has been created to insure that these restrictions run with 5 the land. During the Term of this Covenant, each and every contract, deed, or other instrument hereafter executed conveying the Property or portion thereof shall expressly provide that such conveyance is subject to this Covenant, provided, however, that the covenants contained herein shall survive and be effective regardless of whether such contract, deed, or other instrument hereafter executed conveying the Property or portion thereof provides that such conveyance is subject to this Covenant. Section 13. Governing Law and Venue. This Covenant shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action or proceeding pursuant to a dispute under this Covenant must be brought and maintained in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative -dispute resolution mechanism, will take place in this venue. The parties both waive any defense that venue in Miami - Dade County is not convenient. Each party will, bear their own respective attorneys fees and consultant and similar costs and expenses. Section 14. Counterparts; Electronic Signatures. This Agreement may be executed in three or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same agreement. This Agreement may be executed in counterparts, each of which shall be an original as against either party whose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original. The parties shall be entitled to sign and transmit an electronic signature on this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 15. Conflicting Terms. In the event any of the terms, provisions, or otherwise anything else set forth in this Covenant (including, but not limited to, the description of the Commercial Space or the square footage thereof) conflicts with anything set forth in the Development Agreement, this Covenant shall govern. [Signature Pages Follow] 6 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. "Developer" WYNWOOD WORKS, LLC, a Florida limited liability company By: WYNWOOD WORKS MANAGER, LLC, a Florida limited liability company, its manager By: MAGELLAN HOUSING LLC, a Florida limited liability company, its manager FIRST WITNESS: By: Print Name: Nikul A. Inamdar, Member SECOND WITNESS: Print Name: ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE THE FOREGOING INSTRUMENT was acknowledged before me by means of 0 physical presence or 0 online notarization on this day of , 2023 by Nikul A. Inamdar, a member of Magellan Housing LLC, a Florida limited liability company, the manager of Wynwood Works Manager, LLC, a Florida limited liability company, the manager of Wynwood Works, LLC, a Florida limited liability company, on behalf of the limited liability companies, who is personally known to me or who produced a as identification. My Commission Expires: 7 Signature of Notary Public, State of Florida Printed Name of Notary Public ATTEST: Todd B. City Clerk Date: APPROVED AS TO LEGAL FORM AND CORRECTNESS: ce i.zr i sScnI* l•a\\oC GencmFGe.ufiseley 8 OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY By: Humberto Gonzalez Executive Director APPROVED A RI}QUIREM Ann -Ma Directo e Sh of Ri rpe k Management Exhibit A Legal Description of the Property Addresses: 2035, 2037 and 2043 North Miami Avenue, Miami, Florida Folios: 01-3125-000-0130 — 2035 North Miami Avenue 01-3125-000-0100 — 2037 North Miami Avenue 01-3125-016-0400 — 2043 North Miami Avenue Full Legal Description: PARCEL A: LOT 7, BLOCK 3, LESS THE WEST 20 FEET THEREOF, OF BAY VIEW ADDITION TO MIAMI, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK B, AT PAGE 107 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. PARCEL B: BEGIN AT THE NORTHWEST CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4 OF N THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TOWNSHIP 53 SOUTH, RANGE 41 EAST, MIAMI-DADE COUNTY, FLORIDA; THENCE RUN SOUTH 85 FEET; THENCE RUN EAST TO THE RAILROAD RIGHT OF WAY OF THE FLORIDA EAST COAST RAILWAY; THENCE RUN NORTHERLY ALONG SAID RIGHT OF WAY 85 FEET, MORE OR LESS, TO A POINT DIRECTLY EAST OF THE POINT OF BEGINNING; THENCE RUN WEST 135 FEET, MORE OR LESS, TO THE POINT OF BEGINNING, LESS THE WEST 35 FEET THEREOF. PARCEL C: COMMENCING AT A POINT 85 FEET SOUTH OF THE NORTHWEST CORNER OF THE SOUTH 1/2 OF SOUTH 1/2 OF SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TOWNSHIP 53 SOUTH, RANGE 41 EAST; THENCE RUN SOUTH 100 FEET; THENCE RUN EAST PARALLEL WITH THE NORTH BOUNDARY OF SAID SOUTH 1/2 OF THE SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TO THE WEST LINE OF THE RIGHT OF WAY OF THE FLORIDA EAST COAST RAILWAY COMPANY; THENCE RUN IN A NORTHERLY DIRECTION AND ALONG THE WEST LINE OF THE RIGHT OF WAY OF THE FLORIDA EAST COAST RAILWAY COMPANY TO A POINT DUE EAST OF THE POINT OF BEGINNING; THENCE RUN WEST AND PARALLEL WITH THE NORTH BOUNDARY OF SAID SOUTH 1/2 OF SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25 TO THE PLACE OR POINT OF BEGINNING, LYING AND BEING IN MIAMI-DADE COUNTY, FLORIDA; EXCEPTING FROM THE ABOVE MENTIONED TRACT, 20 FEET OFF THE WEST SIDE OF SAID PROPERTY CONVEYED TO THE CITY OF MIAMI FOR STREET PURPOSES AS SHOWN BY DEED RECORDED IN DEED BOOK 361, AT PAGE 355, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, AND ALSO LESS THE WEST 15 FEET THEREOF FOR ADDITIONAL RIGHT-OF-WAY. SAID LANDS ALSO KNOWN AS: A PORTION OF LOT 7, BLOCK 3, OF BAY VIEW ADDITION TO MIAMI, ACCORDING TO THE 9 `5 PLAT THEREOF, AS RECORDED IN PLAT BOOK B, AT PAGE 107 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; AND A PORTION OF THE SOUTH 1/2 OF THE SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TOWNSHIP 53 SOUTH, RANGE 41 EAST; MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF THE SOUTH 1/2 OF THE SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25, TOWNSHIP 53 SOUTH, RANGE 41 EAST; THENCE RUN N 89°55'17" E FOR 35.00 FEET TO THE POINT OF BEGINNING; THE NEXT DESCRIBED LINE BEING ALONG A LINE 35 FEET EASTERLY OF THE CENTER LINE OF NORTH MIAMI AVENUE, THENCE N 00°16'34" E FOR 34.42 FEET TO A POINT ON THE NORTH LINE OF LOT 7; THENCE S 89°50'00" E ALONG SAID NORTH LINE OF LOT 7, FOR 108.40 FEET TO THE WESTERLY RIGHT OF WAY OF THE FLORIDA EAST COAST RAILWAY COMPANY, THENCE S 13°53'30" W ALONG SAID RIGHT OF WAY FOR 225.63 FEET; THENCE S 89°55'17" W ALONG A LINE SOUTHERLY OF AND PARALLEL WITH THE NORTH BOUNDARY OF SAID SOUTH 1/2 OF SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 25 FOR 55.29 FEET, THENCE N 00°16'31" E ALONG THE LINE 35 FEET EASTERLY OF CENTER LINE NORTH MIAMI AVENUE FOR 185.00 FEET TO THE POINT OF BEGINNING. 7335998.13 10