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HomeMy WebLinkAbout23081AGREEMENT INFORMATION AGREEMENT NUMBER 23081 NAME/TYPE OF AGREEMENT OMNI CRA & N.R. INVESTMENTS 11, LLC DESCRIPTION RENT REGULATORY AGREEMENT/UNI TOWER 70 NE 17TH STREET, 90 NE 17TH STREET & 1642 NE 1ST AVENUE, MIAMI, FLORIDA/FILE ID: 6717/CRA-R-20-0001 EFFECTIVE DATE May 21, 2020 ATTESTED BY TODD B. HANNON ATTESTED DATE 5/22/2020 DATE RECEIVED FROM ISSUING DEPT. 5/22/2020 NOTE Prepared by, Marc D. Sarnoft Esq. Shutts & Bowen LLP 200 S. Biscayne Blvd., Suite 4100 Miami, Florida 33131 After recording return to: Victoria Mdndez, Esq. City Attorney, City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property Address: 70 NE 17th Street, Miami, Florida, 90 NE 17th Street, Miami, Florida, 1642 NE F4 Avenue, Miami, Florida RENT REGULATORY AGREEMENT FOR UM TOWER THIS RENT REGULATORY AGREEMENT ("Reunlatorv:Aereement'-') is entered into this 21day of May , 2020, between N.R. INVESTMENTS 11, LLC, a Florida limited liability company, its assigns or successors in interest, with a principal office located at 1111 Park Centre Boulevard, Suite 450, Miami Gardens, Florida 33169 (hereinafter refereed to as "Developer") and the OMNI COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created by the City of Miami (the "Ci�t ") in 1987 pursuant to Florida Statutes Section 163,356, with a principal office located at 1401 N. Miami Avenue, 2°a Floor, Miami, Florida 33136 (hereinafter the "CRA"). The execution of this Regulatory Agreement by the Developer is in connection with and contingent on the grant (the "Grant") and use of CRA funds, as authorized pursuant to Resolution No. CRA-R-20-0001 adopted April 9, 2020, subject to the terms and conditions provided in the Economic Incentive Agreement to be executed by the Developer and the CRA (the "Agreement''), for the construction of a total of two hundred fifty-two (252) residential apartment units. All two hundred fifty-two (252) of the units will be CRA-assisted units (the "CRA-Assisted Units") of that certain project known as Uni Tower located at 70 NE 17th Street, 90 NE 17th Street, and 1642 NE lSt Avenue, Miami, Florida (the "Project"). In accordance with the requirements set forth in (i) the Agreement for the Funds and the Incentive Payments based on the Incremental TIF (each of those terms as defined in the Agreement) the Project creates, and (ii) the other documents of even date therewith between the Developer and the CRA, all two hundred fifty-two (252) units are considered "CRA-Assisted" and all of the CRA-Assisted Units are subject to the restrictions provided in this Regulatory Agreement recorded on the subject property as legally described on Exhibit "A" of this Regulatory Agreement, attached and incorporated herein by this reference. The Project will, during the Affordability Period (as defined below), maintain the following unit mix structure: 1 of 12 Unit -Mix Unit Type 1 No. of Units AMI (as defined below) Studio -10_-- , 0 60 /o Studio 19 80% Studio _29 __ _ 100%_ Studio 38 -120% Studio 92 140% 1 Bedroom 3 60% 1 Bedroom 6 80% 1 Bedroom 9 _ 100% _ 1 Bedroom 12 120% 1 Bedroom 30.._ 140% 2 Bedroom 4 140% Total: 252 Developer hereby agrees to the following terms, conditions and covenants until the end of the Affordability Period: (1) New -Tenant Occupancy Requirements. When an existing tenant vacates its unit, such unit shall thereafter be made available to tenants who qualify under the occupancy requirements of the CRA-Assisted Unit requirements as set forth in this Regulatory Agreement as follows: a. Maximum Rent Levels. The rents charged on all CRA-Assisted Units shall be subject to this Regulatory Agreement. The monthly base rent charged on CRA- Assisted Units as described by the Unit Mix are subject to the maximum income levels and maximum rents published by the United States Department of Housing and Urban Development ("HUD") based on the adjusted median income, as adjusted for family size, established by HUD for Miami -Dade County, Florida (as adjusted by HUD from time to time, the "AMI"). In no event will the monthly base rent on a CRA-Assisted Unit exceed the maximum rent levels as provided for in this Paragraph (1)(a). The monthly base rents shall not be adjusted for changes in tenants income or HUD published maximum rents prior to the expiration of each tenant's then current term, excluding any future renewal options or extensions, if any, or the termination of such lease, as applicable. Subject to Sections 5.5 and 13 of the Agreement, the Project will maintain the Unit -Mix until either a) December 31, 2038 if the CRA is terminated after March 31, 2030, but before 2047 or b) July 7, 2047 if the life of the CRA is extended to July 7, 2047. As HUD adjusts the AMI, the Projects income level restrictions and rents will be adjusted accordingly. b. Income Re -certification. Tenant income restrictions for CRA- Assisted Units shall be certified by the Developer annually on the anniversary of each tenant's lease and maintained in the tenant file, subject to inspection by the CRA, in accordance with Paragraph (4) of this Regulatory Agreement. 2 of 12 c. Deposits and Pre -payments. Developer shall not require, as a condition of occupancy or leasing of any CRA-Assisted Unit, any other consideration or deposit from the tenant, except for the prepayment of one month's rent, a security deposit not to exceed one additional month's rent and, if applicable, a one-time pet fee not to exceed Three Hundred Dollars ($300.00). (2) Prohibited Lease Provisions. The Developer's leases for CRA- Assisted Units shall not contain any of the following provisions: a. Agreement to be sued. A tenant lease may not contain a provision whereby the tenant agrees to be sued, admits guilt or consents to judgment in favor of the landlord in a lawsuit brought in connection with the lease. b. Agreement regarding treatment of property. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may take, hold or sell personal property of the tenant household without notice and .a court decision. This prohibition does not apply to personal property remaining in the unit after the tenant has moved out. c. Waiver of notice. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may institute a lawsuit without notice to the tenant. d. Waiver of legal_proceedings. A tenant lease may not contain a provision whereby the tenant agrees that the landlord may evict the tenant or a household member without instituting a civil court proceeding in which the tenant has the opportunity to present a defense or before a court decision on the rights of the parties. e. Waiver of right to appeal a court decision. A tenant lease may not contain a provision whereby the tenant agrees to waive the tenant's right to appeal or otherwise challenge in court a court decision in connection with the lease. f. Agreement to pay legal costs, regardless of outcome. A tenant lease may not contain a provision whereby the tenant agrees to pay attomey's fees or other legal costs even if the tenant wins the court proceeding brought by the landlord against the tenant. The tenant, however, may be obligated to pay the attomey's fees and costs if the tenant loses the court proceeding brought by the tenant or landlord. g• Excusing owner from -.responsibility-. A tenant lease may not contain a provision whereby the tenant agrees not to hold the landlord or the landlord's agents legally responsible for any gross negligence or willful misconduct. 3 of 12 (3) Annual Reporting. Each year, on the anniversary of the issuance of the certificate of occupancy/certificate of completion for the Project or Close -Out of the Project in accordance with the Agreement, and at other times at the request of the CRA (but in no event more than three (3) times in any twelve (12) month period), the Developer shall furnish occupancy reports in a form approved by the CRA, and shall provide the CRA with such other information as may be reasonably requested by the CRA relative to the Project's ongoing compliance with this Regulatory Agreement related to Unit Mix and the tenants' income certification. (4) Inspections. The Developer agrees to submit the CRA-Assisted Units to an annual re -inspection to ensure continuing compliance with all applicable housing codes, federal and local housing quality standards and regulatory requirements. The Developer will be furnished a copy of the results of each inspection within thirty (30) days of completion, and will be given thirty (30) days thereafter to correct any deficiencies or violations (provided however, in the event that the deficiencies or violations are not of a type which can be resolved in thirty (30) days, the Developer shall have an additional sixty (60) days of time to correct the same so long as Developer is diligently endeavoring to cause such correction). At any time, other than an annual inspection, the CRA may, in its discretion, inspect any CRA-Assisted Unit. The Developer and the tenant will be provided with the results of the inspection and the time and the method of compliance and corrective action that must be taken. All inspections by the CRA shall (1) be done during normal business hours, (2) upon at least seventy-two (72) hours prior notice to the Developer and tenant, and (3) in a manner so as to not materially interfere with the tenant's occupancy of the CRA- Assisted Unit. (5) Record -keeping. Developer shall keep copies of all records, calculations and information necessary to support tenant occupancy eligibility and monthly rental charges in addition to all leases and written notices to tenants with respect to the terms of this Regulatory Agreement. (6) Default. Upon the occurrence of a violation of any provision of this Regulatory Agreement, the CRA shall give written notice thereof to the Developer, by registered or certified mail, FedEx or similar overnight courier (with tracking confirmation), addressed to the Developer's address as stated in this Regulatory Agreement, or to such other address(es) as may subsequently, upon appropriate written notice thereof to the CRA, be designated by the Developer. In the case of a Developer which is a corporation or partnership, notices may also be sent by the CRA to the address of the corporation's chief executive officer or to all general partners, as applicable, at the CRA's discretion. If such violation is not corrected to the CRA's reasonable satisfaction, within thirty (30) days after the date such notice is delivered (as evidenced by tracking information or USPS return receipt), without further notice the CRA may declare a default under this Regulatory Agreement and under the Agreement executed in connection therewith, and may proceed to initiate any or all remedies at law or in equity provided for in the event of a default under such Agreement this Regulatory Agreement. If the violation cannot practicably be cured within thirty (30) calendar days, then, upon written request, the Developer shall have an additional sixty (60) calendar days to cure the event of default. No additional time to cure shall be 4of12 follows: granted unless the Developer can show good cause for its inability to cure the event of default and the CRA, in writing, grants in whole or with conditions the Developer's written request for additional time to cure the violation, such approval not to be unreasonably withheld. All notices under this Regulatory Agreement shall be in writing and addressed as To Developer: With Copy to: To CRA: With Copy to: N.R. Investments 11, LLC. 1111 Park Center Blvd., Suite 450 Miami Gardens, Florida 33169 Attention: Terry Wellons, Manager Shutts & Bowen LLP 200 S. Biscayne Blvd., Suite 4100 Miami, Florida 33131 Attention: Marc D. Sarnoff, Esq. Omni Community Redevelopment Agency 1401 North Miami Avenue Miami, Florida 33136 Attn: Jason Walker, Executive Director Victoria Mendez General Counsel Office of the City Attorney, City of Miami 444 S.W. 2nd Avenue Miami, Florida 33130-1910 (7) Fines. Upon the occurrence (and continuance beyond applicable grace, notice and/or cure periods) of a violation of any provision of this Regulatory Agreement, and regardless of the nature of the violation, the CRA will assess (commencing upon the expiration of the applicable grace, notice and/or cure period) a flat monthly fine in the amount of Fifty Dollars and no/cents ($50.00) per CRA- Assisted Unit that is the subject of such violation up to a maximum of Five Thousand Dollars and no/cents ($5,000.00) per month, for each month the violation is not corrected, and pay same over to the CRA. The Developer shall pay said fines to the CRA, or its successor, within thirty (30) calendar days of receiving notice of the fines assessed against the Developer. If the Developer fails to pay the fines within thirty (30) calendar days of receiving notice, then the CRA shall withhold the amount of fines due and owing from Incentive Payments in subsequent years. The remedy for violation provided in this section of this Regulatory Agreement is cumulative with any and all remedies at law or in equity provided in the event of a default under this Regulatory Agreement and the Agreement. (8) Tenant Notice. Developer agrees, during the Term (as defined in Section 13) of this Regulatory Agreement, to furnish each tenant of a CRA-Assisted 5 of 12 Unit, at the execution or renewal of any lease or upon initial occupancy, if there is no lease, with a written notice in the following form: The rent charged for your apartment and the services included in that rent are subject to a certain Rent Regulatory Agreement between the landlord and the Omni Community Redevelopment Agency, for the term of the Affordability Period (as defined in such Rent Regulatory Agreement). A copy of the Rent Regulatory Agreement will be made available by the landlord to each tenant upon request. If there is no lease for a CRA-Assisted Unit, Developer shall maintain a file copy of such notice delivered to the tenant, with a signed acknowledgement of receipt by the tenant. All such notices to tenants will be made available for inspection upon request by the CRA. (9) No Conflict with the Agreement. The provisions of this Regulatory Agreement are in addition to, and do not amend, alter, modify, or supersede in any respect, the provisions of the Agreement executed in connection with the Grant and TIF Incentive Payments. (10) HUD Provisions and Restrictions, i. In the event of any conflict between any provision contained elsewhere in the Restrictive Covenant, this Regulatory Agreement and the Agreement and any provision contained in this Section 10, the provision contained in this Section 10 shall govern and be controlling in all respects as set forth more fully herein. ii. The following terms shall have the following definitions: "Code" means the Internal Revenue Code of 1986, as amended. "HUD" means the United States Department of Housing and Urban Development. "HUD Regulatory Agreement" means the Regulatory Agreement between Borrower and HUD with respect to the Project, as the same may be supplemented, amended or modified from time to time. "Lender" means Walker & Dunlop, LLC, its successors and assigns. "Mortgage Loan" means the mortgage loan made by Lender to the Borrower pursuant to the Mortgage Loan Documents with respect to the Project. "Mortgage Loan Documents" means the Security Instrument, the HUD Regulatory Agreement and all other documents required by HUD or Lender in connection with the Mortgage Loan. "National Housing Act" means the National Housing Act of 1934, as amended. "Program Obligations" has the meaning set forth in the Security Instrument. 6 of 12 "Residual Receipts" has the meaning specified in the HUD Regulatory Agreement. "Security Instrument" means the mortgage or deed of trust from Borrower in favor of Lender, as the same may be supplemented, amended or modified. "Surplus Cash" has the meaning specified in the HUD Regulatory Agreement. iii. Developer covenants that it will not take or permit any action that would result in a violation of the Code, Program Obligations (the Mortgage Loan Documents and Program Obligations are collectively referred to herein as the "HUD Requirements"), Restrictive Covenant, this Regulatory Agreement or Agreement. In the event of any conflict between the provisions of the Restrictive Covenant, this Regulatory Agreement or the Agreement and the provisions of the HUD Requirements, HUD shall be and remains entitled to enforce the HUD Requirements. Notwithstanding the foregoing, nothing herein limits the CRA's ability to enforce the terms of the Restrictive Covenant, this Regulatory Agreement or the Agreement, provided such terms do not conflict with statutory provisions of the National Housing Act or the regulations related thereto. The Developer represents and warrants that to the best of Developer's knowledge the Restrictive Covenant, this Regulatory Agreement and the Agreement impose no terms or requirements that conflict with the National Housing Act and related regulations. iv. Developer and the CRA acknowledge that Developer's failure to comply with the covenants provided in the Restrictive Covenant, this Regulatory Agreement and the Agreement does not and shall not serve as a basis for default under the HUD Requirements, unless a default also arises under the HUD Requirements. v. In enforcing the Restrictive Covenant, this Regulatory Agreement and the Agreement the CRA will not file any claim against the Project, the Mortgage Loan proceeds, any reserve or deposit required by HUD in connection with the Security Instrument or HUD Regulatory Agreement, or the rents or other income from the property other than a claim against available surplus cash of the Developer or for specific performance under the Restrictive Covenant, this Regulatory Agreement or the Agreement. vi. For so long as the Mortgage Loan is outstanding, Developer and CRA shall not further amend the Restrictive Covenant, this Regulatory Agreement and the Agreement, with the exception of clerical errors or administrative correction of non -substantive matters, without HUD's prior written consent. vii. Subject to the HUD Regulatory Agreement, the CRA may require the Developer to indemnify and hold the CRA harmless from all 7of12 loss, cost, damage and expense arising from any claim or proceeding instituted against CRA relating to the covenants set forth in the Restrictive Covenants, this Rent Regulatory Agreement, provided, however, that Developer's obligation to indemnify and hold the CRA harmless shall be limited to available surplus cash and/or residual receipts of the Developer. viii. The provisions of this Regulatory Agreement including this Section 10 will be incorporated by reference into the Agreement. (11) Conflict with HUD Reporting Requirements and Forms. In the event there is any conflict regarding the reporting requirements, forms, or records in this Regulatory Agreement, the Agreement and the HUD requirements, the HUD requirements, forms or records, as applicable, will control. (12) Partial Invalidity: The invalidity of any paragraph or provision of this Regulatory Agreement shall not affect the validity of the remaining paragraphs and provisions hereof. (13) Term. This Regulatory Agreement shall be effective until the expiration of the Affordability Period. On the expiration of such period, this Regulatory Agreement shall immediately lapse and be of no further force and effect without the necessity of any other written document or instrument. Notwithstanding the foregoing, upon such expiration, the Developer shall be permitted to prepare and record an instrument evidencing the expiration of and other termination of this Regulatory Agreement in the Public Records of Miami -Dade County, Florida. (14) Definitions. All capitalized terms used herein and not otherwise defined shall have the meanings provided in the Regulation or the Agreement. (15) Exclusion of Commercial Spaces. Notwithstanding anything to the contrary in this Regulatory Agreement or in the Agreement, it is expressly understood and agreed that the Regulation and all other terms, conditions, restrictions, and requirements of this Regulatory Agreement shall exclude, and shall not apply to, or otherwise restrict or affect, the operation, maintenance, leasing, improvement, base rent and other additional rent determination and collection, and all other aspects of the Developer's management, leasing, and ownership of all or any portion of the commercial and retail spaces located in the Project, if applicable. (16) Severability. Invalidation of one of the provisions of this Regulatory Agreement by judgment of Court shall not affect any of the other provisions of the Covenant, which shall remain in full force and effect. (17) Recordation. This Regulatory Agreement shall be filed of record among the Public Records of Miami -Dade County, Florida, at the sole cost and expense of the Developer within fifteen (15) calendar days after all parties have executed this Regulatory Agreement. 8 of 12 (18) Governing Law and Venue. This Regulatory Agreement 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 pursuant to a dispute under this Regulatory Agreement must be brought 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 shall bear its own attorneys' fees and costs. (19) Counterparts,. Electronic _ Signatures.. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Facsimile, .pdf and other electronic signatures to this Agreement shall have the same effect as original signatures. (20) Waiver . of Jury Trial.. Developer and the CRA hereby knowingly, irrevocably, voluntarily, and intentionally waive any right either may have to a trial by jury in respect to any action, proceeding, claim, or counterclaim based on this Regulatory Agreement and/or the Project, or arising out of, under, or in connection with this Agreement, the Project, any renewal(s) hereof, any amendment, extension, or modification of this Regulatory Agreement, or any other agreement executed between the parties in connection with this Regulatory Agreement, the Project or any other course of conduct, course of dealing, statements (whether verbal or written), or any other actions of any party hereto. This waiver is a material inducement for the CRA and the Developer to enter into this Regulatory Agreement. THIS RENT REGULATORY AGREEMENT has been executed and delivered as of the day and year first above written. [Signature Page Follows] [Remainder of page intentionally left blank] 9of12 IN WITNESS WHEREOF, the parties hereto have caused this Regulatory Agreement to be executed by their undersigned officials as duly authorized. DEVELOPER WITNESSES: N.R. Investments 11, LLC. 1111 Park Center Blvd., Suite 450 Miami Gardens, Florida 33169 Attention: Terry Wellons, Managing Member STATE OF FLORIDA COUNTY OF MIAMI DADE N.R. INVESTMENTS 11, LLC, a Florida limited liability company By: Name: Terry Wellons Title: Manager ACKNOWLEDGEMENT The foregoing instrument was acknowledged before me by means of ® physical presence or ❑ online notarization, this 9.A day of , 2020, by Terry WelIons, as Manager of N.R. INVESTMENTS 11, LLC, a Fiona Iiability company, on behalf of the limited liability company, who is personally own to me or gas produced as identification. My Commission Expires: , State of Florida 10 of 12 IN WITNESS WHEREOF, the parties hereto have caused this Regulatory Agictnient to be executed by their undersigned officials as duly authorized. ATTEST CRA: OMNI COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created by the City of Miami pursuant to Florida Statutes Section 163.356 ("CRA") / 1. .....-------," By: Todd Hannon, the Board Jasoi Walker, Executive Director Date: 5 / Da(aDaa APPROVED AS TO INSURANCE REQUIREMENTS Ann -Marie Sharpe Director of Risk Management APPROVED AS TO FORM AND CORRECTNESS Victoria XEA (Matter ID: 20-821) General Counsel 11 of 12 Exhibit A Legal Description of the Properties at 70 NE 17m Street; 90 NE 17th Street, and 1642 NE 18" Avenue, Miami;.Florida Full Legal Description Parcel 1: Lot 1, less the North 10 feet, and the East 10 feet, Block 8, Robbins, Graham and Chillingsworth Addition North Miami, according to the Plat thereof, as recorded in Plat Book "A", Page 49 1/2, of the Public Records of Miami -Dade County, Florida, together with the East 1/2 of the 10 foot vacated alley right of way adjacent to and abutting the West line of said Lot 1, less the North 10 feet. Parcel 2: Lots 3 and 4, less the East 10 feet of Lot 4, Block 8, Robbins, Graham and Chillingsworth Addition North Miami, according to the Plat thereof, recorded in Plat Book "A", Page 49 1/2, of the Public Records of Miami -Dade County, Florida, together with that portion of the 10 foot vacated alley right of way situated between said Lots 3 and 4. Parcel 3: Lot 2, less the North 10 feet, Block 8, of Robbins, Graham and Chillingsworth Addition North Miami, according to the Plat thereof, as recorded in Plat Book !Al, Page 49 1/2, of the Public Records of Miami -Dade County, Florida and the Westerly 5 feet of a 10 foot alley vacated by City of Miami Ordinance No. 13492 "Mas Index" 23H10 Ordinance and Vacation recorded in Official Records Book 29757, Page 1686, Official Records Book 29778, Page 3598, Official Records Book 29877; Page 4214 and in Official Records Book 30125, Page 2511, all of the Public Records of Miami -Dade County, Florida, lyingadjacent to Lot 2, Block 8, of Robbins, Graham and Chillingsworth Addition North Miami, according to the Plat thereof, as recorded in Plat Book "A", Page 49 1/2, of the Public Records of Miami -Dade County, Florida, and being bound of the North by an extension of a line 10 feet Southerly of the North boundary line of Lot 2, Block 8, extending Easterly for 5 feet and on the South by an extension of the Southerly boundary line of Lot 2, Block 8, Easterly for 5 feet. 12 of 12