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HomeMy WebLinkAbout23829AGREEMENT INFORMATION AGREEMENT NUMBER 23829 NAME/TYPE OF AGREEMENT OMNI CRA & 14TH STREET DEVELOPMENT, LLC DESCRIPTION DECLARATION OF RESTRICTIVE COVENANTS/INCREASE SUPPLY OF RENTAL HOUSING UNITS AT 14TH STREET DEVELOPMENT APARTMENTS/FILE ID: 10631/CRA-R-21-0044 EFFECTIVE DATE March 28, 2022 ATTESTED BY TODD B. HANNON ATTESTED DATE 3/28/2022 DATE RECEIVED FROM ISSUING DEPT. 3/28/2022 NOTE 2359 Prepared by, and after recording return to: Victoria Mendez, Esq. City Attorney, City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305) 416-1800 Property folio numbers: 01-3136-005-1110; 01-3136-005-1070; 01-3136-005-1060; 01-3136-005-1180; 01-3136- 005-1151; 01-3136-005-1150; 01-3136-005-1140; 01-3136-005-1130; 01-3136-005-1090 DECLARATION OF RESTRICTIVE COVENANTS FOR 14TH STREET DEVELOPMENT, LLC This Declaration of Restrictive Covenants for 14TH STREET DEVELOPMENT, LLC (the "Covenant") made this 23 day of March, 2022 by 14TH STREET DEVELOPMENT, LLC, a Florida limited liability company (hereinafter referred to as "Project Sponsor"), 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" or "Lender"). RECITALS WHEREAS, the Project Sponsor is the owner of the property legally described in Exhibit "A," attached hereto and incorporated herein (the "Property"); and WHEREAS, the Project Sponsor 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, and it shall remain in full force and effect until released by the CRA in accordance with the terms hereof; and WHEREAS, the Project Sponsor is developing a project that will increase the supply of rental housing units in the community to be known as 14th STREET DEVELOPMENT APARTMENTS (hereinafter referred to as the "Project" or the `Building"), which consists of the construction of a mixed -use project consisting of approximately Three Hundred Ninety Eight (398) residential units of which One Hundred Twenty (120) units are affordable housing units ( the "CRA-Assisted Units") in the County of Miami -Dade, State of Florida, legally described in Exhibit "A"; and WHEREAS, the CRA has loaned Fifteen Million and 00/100 Dollars ($15,000,000.00) to Project Sponsor in order to develop the Project; and WHEREAS, all of the CRA Assisted Units will be maintained as affordable units as specified in the Loan Documents, as defined herein, for the duration of the Affordability Period. During the Affordability Period, as defined herein, the Project must maintain the following unit mix structure: forty (40) units affordable to residents at sixty 60% of Area 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"), which shall consist of four (4) studio units, thirty-three (33) 1 1-bedroom units, and three (3) 2-bedroom units; eighty (80) units affordable to residents at 80% AMI, which shall consist of six (6) studio units, sixty seven (67) 1-bedroom units, and seven (7) 2-bedroom units (the "Unit -Mix"); and WHEREAS, the Affordability Period is the period of time that the Project Sponsor shall maintain the rents charged on all CRA-Assisted Units as described by the Unit Mix in the Rent Regulatory Agreement (as defined in the Forgivable Loan Agreement), the Affordability Period shall begin when Substantial Completion of the Project occurs, and the Project Sponsor shall maintain the Unit Mix, as defined in the Rent Regulatory Agreement, of even date herewith between CRA and Project Sponsor, until July 7, 2047, subject to the terms and conditions of the Forgivable Loan Agreement, or earlier termination of the Forgivable Loan Agreement as otherwise provided herein (as applicable, the "Expiration of the Affordability Period"); and WHEREAS, the CRA's allocation of funds for the Project is subject to that certain Forgivable Project Loan Agreement for 14th Street Development, LLC effectively dated of even date herewith (the "Forgivable Loan Agreement") and other loan documents of even date herewith between the CRA and the Project Sponsor, including but not limited to the Rent Regulatory Agreement and this Covenant (collectively, the "Loan Documents"); and WHEREAS, Project Sponsor desires to make a binding commitment to assure that the CRA Assisted Units and the Property in general are maintained and operated in accordance with the provisions of the Loan Documents and this Covenant; and WHEREAS, Project Sponsor, as a condition for receiving the Loan funds to construct the Project is required to record in the Public Records this Covenant obligating the Project Sponsor, its successors, transferees, and assigns to maintain and operate the Property in accordance with the Loan Documents; and WHEREAS, the Project Sponsor 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 during the entire Affordability Period, unless otherwise terminated pursuant to the Loan Documents or this Covenant, and is not merely a personal covenant of the Project Sponsor; NOW THEREFORE, Project Sponsor voluntarily covenants and agrees that the CRA Assisted Units 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 Project Sponsor, 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. Use of Property: The Project shall be developed and consist of approximately Three Hundred Ninety -Eight (398) residential units of which One Hundred Twenty (120) units are affordable housing units on the Property. The Project must at all times during the Affordability Period maintain the Unit -Mix as defined in the Rent Regulatory Agreement, and the CRA Assisted Units shall be occupied with eligible tenants in accordance with the Rent Regulatory Agreement and this Covenant. Section 3. 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 Project Sponsor, its successors and assigns from the date hereof until the expiration of the Affordability Period, unless otherwise terminated or released pursuant to the Loan Documents or this Covenant. Upon the 2 expiration of the Affordability Period this covenant shall automatically terminate; however, the CRA shall prepare for recording an instrument evidencing the expiration of and other termination of this Covenant in the Public Records of Miami -Dade County, Florida. Section 4. Repayment Upon Default: The Project Sponsor covenants and agrees that in the event (i) of the sale or conveyance of any interest in the Project and/or the Property without prior written consent as required by the Loan Documents (except as otherwise provided in the Loan Documents), or (ii) of the Event of Default under the Loan Documents which is not cured within the applicable cure period or otherwise waived by the CRA or (iii) that the Project Sponsor ceases to exist as an organization, the Project Sponsor shall immediately make payment to the CRA in an amount equal to the full amount of Loan funds disbursed and outstanding, with interest thereon as provided in the Note, and all unpaid fees, charges and other obligations of the Project Sponsor due under any of the CRA Loan Documents. Section 5. Inspection and Enforcement: It is understood and agreed that any official inspector of the CRA shall have the right to review the Project Sponsor's compliance with this Covenant, the other Loan Documents, Rent Regulatory Agreement and the Economic Incentive Agreement pursuant to the terms and conditions of such review provided therein. Section 6. Amendment and Modification: This Covenant may be modified, amended, or released as to any portion of the Property by a written instrument executed on behalf of the CRA and the Project Sponsor or their respective successors in interest. 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. Section 7. Definitions: All capitalized terms not defined herein shall have the meanings provided in the Forgivable Loan Agreement. Section 8. 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 9. Recordation: This Covenant shall be filed of record among the Public Records of Miami -Dade County, Florida, at the sole cost and expense of the Project Sponsor. Section 10. Deed Restriction/Covenant Running with the Land. 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 a deed restriction and covenant 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 ensure that these restrictions run with the land. For 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 in accordance with the term of this Covenant or the Loan Documents as described above 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 11. 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 pursuant to a dispute under this Covenant must be brought in Miami- 3 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. Section 12. Floating Units. CRA-Assisted Units shall be handled as "Floating Units," as described in 24 CFR 92.252(j): "In a project containing CRA-assisted and other units, the participating jurisdiction may designate fixed or floating CRA units. This designation must be made at the time of project commitment. Fixed units remain the same throughout the period of affordability. Floating units are changed to maintain conformity with the requirements of this section during the period of affordability so that the total number of housing units meeting the requirements of this section remains the same, and each substituted unit is comparable in terns of size, features, and number of bedrooms to the originally designated CRA-assisted unit." Section 13.Additional Financing and Transfer. Developer and the CRA hereby agree and acknowledge that Developer may obtain senior mortgage financing from a lender or lenders secured by a mortgage on the Project to be recorded in the Official Records of Miami -Dade County. Any additional financing shall provide notice to the CRA and such lenders shall acknowledge the rights of the CRA as evidenced by all documents of even date herewith. The Rent Regulatory agreement shall not be subordinated or terminated except upon the terms of the CRA agreements of even date herewith. Notwithstanding the foregoing, the CRA will not subordinate beyond a 3rd priority lien to any senior financing. Except for encumbering the Property as required to obtain the Permitted Senior Financing as set forth in Section 5.17 of this Forgivable Loan Agreement and Schedule A attached to the Forgivable Loan Agreement, the Project Sponsor shall obtain the CRA's prior written approval prior to undertaking any of the following with respect to the Project and/or the Property: (a) The sale, assignment, pledge, transfer, hypothecation or other encumbrance or disposition of any proprietary or beneficial interest in the Project Sponsor, the Project or the Project Sponsor's estate in the Property, or any change in the operating control of the Project Sponsor, which shall require the prior written approval of the Executive Director of the CRA (such approval not to be unreasonably withheld, conditioned or delayed). (b) Except in the case of repair or replacement caused by normal wear and tear, and otherwise due to casualty or condemnation in accordance with the terms of this Agreement, the disposition of any real property or any expendable personal property or non -expendable personal property as defined in Paragraph 4.3.1 of the Forgivable Loan Agreement. (c) Any proposed Solicitation Notice, Invitation for Bids or Request for Proposals. (d) The disposal of any Contract Records during the Retention Period. 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. WITNESS Print Name: get r % .)Q1C. STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) PROJECT SPONSOR: 14TH STREET DE ' LOPMENT, LLC, a - Florida limited liab' ity company By: Name: Nir Shosha Title: Manager Date: o3b9/ 22 ACKNOWLEDGMENT THE FOREGOING INSTRUMENT was acknowledged before me by means of 3 r4ysical presence or 0 online notarization on this 28 day of March, 122 by Nir Shoshani, as Manager of 14th Street Development, LLC on behalf of such limited li.'. !ity company, who is personally know e or who produced a 1 10 1` as identification. My Commission Expires: 151202c Signature of Not ry Public, State of Florida MatiD Ow 19P Notary Public State of Florida Maria Camila Daza My Commission HH 118357 moo' Expires 04/18/2025 Printed Name of Notary Public 5 IN WITNESS WHEREOF, the parties hereto have caused this Covenant to be executed by their undersigned officials as duly authorized. ATTEST: By: d Hannon, -r • e Board Date: 3 facqaoaa- CRA: OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes ("CRA") By: H. Bert Gonzalez , Execut APPROVED AS TO-r is • NCE APPROVED AS TO FORM AND CORRECTNESS: REQUIREM7S Ann -Mari Sh - rpe Director . f R'sk Management V'!toria Mendez General Coun el 6 2.3922c' Exhibit A Legal Description Of The Property Folio 01-3136-005-1110: Lot 7 and the North 20 feet of Lot 10, Block 16, "NORTH MIAMI", (also known as ROBBINS, GRAHAM AND CHILLINGSWORTH SUBDIVISION) according to the plat thereof, as recorded in Plat Book "A", Page 49 %, of the Public Records of Miami -Dade County, Florida, less the West 10 feet of said Lot 7 and further less the West 10 feet of the North 20 feet of said Lot 10, Block 16. Folio 01-3136-005-1060: Lot 2, Block 16, Robbins -Graham & Chillingsworth, also known as North Miami, less the West 10 feet thereof, according to the plat thereof, as recorded in Plat Book A, Page 49 %, of the Public Records of Miami -Dade County, Florida. Folios 01-3136-005-1070 and 01-3136-005-1090: Lots 3 and 6 in Block 16, of ROBBINS, GRAHAM, & CHILLINGSWORTH'S SUBDIVISION, according to the Plat thereof, as recorded in Plat Book "A" at Page 49 %, of the Public Records of Miami -Dade County, Florida, less the West 10 feet thereof. Folios 01-3136-005-1130; 01-3136-005-1140; 01-3136-005-1150; 01-3136-005-1151; 01-3136- 005-1180: Lots 5, 8, 9 and 12 in Block 16, of ROBBINS, GRAHAM & CHILLINGWORTH'S SUBDIVISION, of the South % of the South % of the Northeast % of the Southeast 1/4 of the Northeast 1/ of Section 36, Township 53 South, Range 41 East; the same being commonly known as "North Miami", according to the Plat thereof, as recorded in Plat Book "A", at Page 49 %, of the Public Records of Miami -Dade County, Florida. 7