LTC 086-2016 State and County Funding Agreements for the Allen Apartments e-A- MIAMIBEACH
OFFICE OF THE CITY MANAGER
NO. LTC# 086-2016 LETTER TO COMMISSION
TO: Mayor Philip Levine and Members o the City I immission
FROM: Jimmy L. Morales, City Manager
DATE: March 1, 2016
SUBJECT: State and County Funding Agreem nts for the Allen Apartments
The purpose of this Letter To Commission is to provide you with the rehabilitation funding
agreements for the Allen Apartments as requested by Commissioner Kristen Rosen Gonzalez.
The Allen Apartments, a property owned by Miami Beach Community Development Corporation
(MBCDC), received funds for the property's rehabilitation from a variety of sources including the
City, Miami-Dade County, Florida Housing Finance Corporation and private financing from Great
Florida Bank. Attached please find the funding agreements between MBCDC and Florida Housing
Finance Corporation and Miami-Dade County as requested.
If you have any questions, please see me.
JLM/KGB/MLR/ARB
• 1111111111111111111111111111111111111111111111
CEN 200 9RO:19 779'
OR Bk 27082 Pss 4333. - 4348; (16P9s)
• RECORDED 11/16/2004 08:51=28
THIS INSTRUMENT PREPARED BY HARVEY RUVI T CLERK OF COURT
C
MIAMI-DADE COUNTY, FLORIDA
AND AFTER RECORDING TO BE
RETURNED TO:
Junious D.Brown III,Esq.
Nabors,Giblin&Nickerson,P.A.
1500 Mahan Drive,Suite 200
Tallahassee,Florida 32308
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
LAND USE RESTRICTION AGREEMENT
(The Allen Apartments/EHCL/2008-002E)
THIS LAND USE RESTRICTION AGREEMENT (this "Agreement") is made and
entered into as of November 10, 2009,by and between MBCDC: THE ALLEN, LLC, a Florida
Iimited liability company.(hereinafter called the "Borrower"), and the FLORIDA HOUSING
FINANCE CORPORATION, a public corporation arid a public body corporate and politic duly
created and existing under the laws of the State of Florida(hereinafter called."Florida Housing") .
(which term as used in every instance shall include Florida Housing's successors and assigns).
RECITALS
•
WHEREAS,Florida Housing was created and organized pursuant.to and in accordance
with the provisions of the Florida Housing Finance Corporation Act, Chapter 420, Part V, Fla.
Stat., as amended (the "Act"), for the purpose among others,'of financing residential rental
- housing projects that will provide decent,safe and sanitary housing for individuals or families of
very low,low,moderate or middle income in the State of Florida(the"State");and
WHEREAS, Borrower has applied to Florida Housing for a loan under the Elderly
Housing Community Loan("EHCL") Program, Section 420.5087,Florida Statutes, and the rules
of the Florida Housing Finance Corporation, codified at Chapter 67-32, Florida Administrative
Code (the "Rule") (the"EHCL Program" or"Program") thereunder, in the principal amount of
SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS($750,000) (the"Loan")to
be used by Borrower for the purpose of providing rehabilitation and/or permanent financing for a
39-unit development known as The Allen Apartments (the"Development") on property located
• in Miami-Dade County, Florida (the "County") on the real property owned by the Borrower
more particularly described on Exhibit"A"attached hereto and made a part hereof(the"Land");
and
•
•
WHEREAS,the Borrower has agreed to provide and set aside for a continuous period of
thirty(30) years from the date of this Agreement(i) for the first 15 years of the 30-year period,
not less than twenty-five percent (25%) of the units (10 units) within the Development shall be
Land Use Restriction Agreement
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MICE/2008-0025
1LP
rented to households who shall have a household income less than or equal to thirty-three percent
(33%) of the area median gross income for the County.or the State or the metropolitan statistical
area in which the Development is located, whichever median income is the greatest, adjusted for
family size(the "Area Median Income") ("Extremely Low-Income Persons or Households"), and
(ii) for the first 15 years of the 30-year period, not less than seventy-five percent (75%) of the
units (remaining units) within. the Development shall be rented to households who shall have a
household income less than or equal to fifty percent (50%) of the Area Median Income ("Very
Low-Income Set Asides"), for a total set-aside of one hundred percent (100%) of the units in the
Development, and (iii) for the remaining 15 years of the 30-year period, one hundred percent
(100%) of the units within the Development shall be rented to households who shall have a
household income less than or equal to fifty percent (50%) of the Area Median Income. The
units within the Development shall be rented in accordance with the requirements of an Elderly
Development(as defined herein).
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration,the receipt and sufficiency of which are
hereby acknowledged, Florida Housing and the Borrower do hereby contract and agree as
follows:
ARTICLE I
Definitions and Interpretation. Unless otherwise expressly provided herein or unless the
context clearly requires otherwise, the following terms shall have the respective meanings set
forth below for all purposes of this Agreement.
"Act" means the Florida Housing Finance Corporation Act as found in Chapter 420,Part
V, of the Florida Statutes.
"Board" means the Board of Directors of Florida Housing.
"Construction Loan Agreement" means the Construction Loan Agreement, of even date
herewith, among the Borrower, Florida Housing and the Servicer, as amended and supplemented
from time to.time.
"County" means Miami-Dade County,Florida.
"Development" means the Improvements to be constructed/rehabilitated on the Land, the
residential rental buildings, the Land and all personal property and fixtures from time to time
attached thereto.
"Elderly" means persons 62 years of age or older. With respect to the EHCL Program,
persons meeting the Federal Fair Housing Act requirements for Elderly shall be considered
Elderly.
"Elderly Development" means a development wherein (1) all units are intended for, and
solely occupied by, persons 62 years of age or older, or (2) at least eighty percent (80%) of the
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EHCU200S.002E
units shall be occupied or held available for occupancy by at least one (1) resident that is 55
years of age or older. The Borrower may choose either of the options above at any time to
remain in compliance with the Land Use Restriction Agreement and its amendments. For option
(2) above, the Development must publish and adhere to policies and procedures that demonstrate
its intent to operate as housing for persons 55 years of age or older, in accordance with the
factors listed in 24 G.F.R. Part 100.306 and Section 760.29(4)(b), Florida Statutes, and may
exclude from occupancy persons 18 years of age or younger from any unit in this circumstance.
. "Improvements" means all the work accomplished on the Development associated with
the provision of life and safety improvements, including, specifically, (i) conversion of six (6)
regular units to three (3) ADA-compliant units, (ii) electrical wiring upgrades, and (iii)
replacement of existing elevator.
"Loan" means the mortgage loan in the original principal amount of$750,000.00 from
Florida Housing as lender to the Borrower with respect to the Development to be made in
accordance with the Note secured by the Mortgage for the purpose of financing the rehabilitation
of the Development.
"Loan Documents" means this Agreement, the Construction Loan Agreement, the
Mortgage, the Note, the Completion Guaranty, the Environmental Indemnity Agreement, and all
other documents evidencing or securing the Loan.
"Mortgage shall mean the Mortgage and Security Agreement of even date herewith from
the Borrower in favor of Florida Housing granting a mortgage lien on and security interest in
Borrower's leasehold estate in the Land, the buildings and equipment constituting the
Development and the rents and income therefrom and securing the obligation of the Borrower
under the Construction Loan Agreement and the Note, as amended and supplemented from time
to time.
"Note" means the Promissory Note of even date herewith in the original principal amount
of$750,000.00 with the Borrower as payor and Florida Housing as payee thereunder, evidencing
the Loan to the Borrower pursuant to the Construction Loan Agreement and the Mortgage, as
may be amended or supplemented from time to time.
"Scrvicer" means First Housing Development Corporation of Florida, a Florida
corporation. -
"State" shall mean the State of Florida.
"Superior Mortgage" means, collectively, the following loan(s) (if any) evidenced and
secured by mortgage loan documents made by a lender(each a"Superior Mortgagee")to finance
a portion of the costs of the improvements which loan(s) is secured by a lien superior to the
Mortgage:
GREAT FLORIDA BANK is the holder of that certain Mortgage, Assignment of Rents
and Security Agreement dated as of September 15, 2008, from Borrower to Great Florida Bank,
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L•HCV2008-0025
•
recorded in Official Records Book 26572, Page 458, of the Public Records of Miami-Dade
County, Florida, as amended by that certain Mortgage Modification Agreement dated as of
March 15, 2009, between Borrower and Great Florida Bank, securing a first mortgage loan in the
original principal amount of $500,000, to be reduced to $263,300 using $236,700 of Loan
proceeds at the time of completion of rehabilitation, and the MIAMI BEACH
REDEVELOPMENT AGENCY is the holder of that certain Declaration of Restrictive
Covenants dated as of April 30, 2007 made by Borrower and securing a second mortgage loan in
the original principal amount of $3,469,347.50, as increased to"the principal amount of
$3,565,672.
"Tema of this Agreement" means the term determined pursuant to Article VIII hereof.
"Very Low-Income Persons or Households" means one or more natural persons or a
family, not including students, who (a) if residing in a development using tax-exempt bond
financing for the first mortgage,have incomes which meet the income eligibility requirements of
Section 8 of the United States Housing Act of 1937, as amended; or (b) if residing in a
development using taxable financing for the first mortgage, have total annual gross household
income which does not exceed 50 percent (50%) of the median income adjusted for family size
or 50 percent (50%) of the median income adjusted for family size for households within the
metropolitan statistical area (MSA), or, if not within an MSA, within the county in which the
person or family resides, or within the State of Florida, whichever is greater, or(c) if residing in
a Development using the federal Low Income Housing Tax Credit, have incomes which meet the
income eligibility requirements of Section 42 of the Internal Revenue Code of 1986, as amended.
ARTICLE II
Affordable Housin for Elderl Persons. Florida Housing and the Borrower hereby
declare their understanding and intent that, during the Term of this Agreement, the Development
is to be owned, managed and operated according to the terms and conditions of the Act, the
Program thereunder,this Agreement and all Loan Documents. To that end, the Borrower hereby
represents,covenants and agrees as follows:
2.1. That the Development is being constructed or substantially rehabilitated for the
purpose of providing rental housing, and the Borrower, its successors or assigns, shall own,
manage, and operate the Development exclusively as multifamily rental housing;
2.2 That under this Agreement, for a period of not less than thirty(30) years from the
date of this Agreement,the units shall be set-aside as follows:
(a) (i) For the first 15 years of the 30-year period, not less than twenty-
five percent (25%) of the units (10 units) within the Development
shall be rented to households who shall have a household income
less than or equal to thirty-three percent(33%) of the Area Median
Income,and
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EHCL/2008-002E
(ii) for the first 15 years of the 30-year period, not less than seventy-
five percent (75%) of the units (remaining units) within the
Development shall be rented to households who shall have a
household income less than or equal to fifty percent (50%) of the
Area Median Income ("Very Low-Income Set Asides"), for a total
set-aside of one hundred percent (100%) of the units in the
Development.
(iii) For the remaining 15 years of the 30-year period, one hundred
percent (100%) of the units within the Development shall be rented
to households who shall have a household income less than or
equal to fifty percent(50%)of the Area Median Income.
(b) The units within the Development shall be rented in accordance with the
requirements of an Elderly Development.
Should the Development cease to meet the requirements in this Section 2.2, the Loan
shall become due and payable at the option of Florida Housing.
2.3. That the Development shall be rehabilitated, operated and maintained in
accordance with the requirements of an Elderly Development;
2.4. That during the Term of this Agreement, the Borrower will not convert the
Development to condominium or co-operative ownership;
2.5. That the Borrower shall not discriminate on the basis of race, religion, color, sex,
familial status, national origin or disability in the lease, use or occupancy of the Development.
Age discrimination and discrimination against minor dependents, except when units are
specifically being held for the Elderly, are also not permitted;
2.6. That the Borrower will immediately withdraw from circulation any advertisement
determined by Florida Housing to violate or be inconsistent with its policies, with respect to
promoting rental housing for Elderly persons, and consents to the remedy of specific
performance;
2.7. That the Development as of the date hereof is located entirely within the limits of
the County.
The provisions of this Article II shall run with the Land and shall remain in effect during
the Term of this Agreement; provided, however, the Borrower may be discharged from its
obligations under Articles II and III hereof to the extent that the same are assumed by any
successor in interest to the Borrower pursuant to Article VII hereof.
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EHCU2008-002E
ARTICLE III
with Florida Compliance With Program Requirements. In order to comply ��ith the Act and Fl or-
Housing's rules and regulations thereunder and with Chapter 67-32, the Borrower hereby
that, during
covenants and agrees t urg the Term of this Agreement:
3.1. The units in the Development shall be set aside as provided in Paragraph 2.2 of
this Agreement.
3.2. The Borrower and its successors in interest shall at all times operate the
Development in conformity with all federal, state and local laws, rules, regulations, ordinances
and orders which may be applicable to the Development, including but not limited to HUD's
rules and regulations, the Federal Fair Housing Act as implemented by 24 C.F.R. Part 100, and
Titles II and III of the Americans With Disabilities Act of 1990 as implemented by 28 C.F.R.
Part 35, and the Florida Americans With Disabilities Accessibility Implementation Act, as
amended.
3.3. The Borrower shall annually certify to Florida Housing (to the attention of the
Multifamily Loans Administrator):
(a) using the certification form attached hereto as Exhibit "B", no later than
the twenty-fifth (25th) day of the month following the end of the Development's fiscal
year,the following:
(i) that all terms and conditions set forth in this Agreement, the
Construction Loan Agreement,and the Mortgage have been satisfied; and
(ii) that all taxes and insurance premiums that came due have been
paid;and -
(iii) that all replacement reserve funds required-by the Mortgage and
the Construction Loan Agreement have been retained.
ARTICLE IV
Indemnification. The Borrower hereby covenants and agrees that it shall indemnify,hold
harmless and defend Florida Housing and its directors, officers, members, officials, employees
and agents from and against (i) any and all claims arising from any act or omission of the
Borrower or any of its agents, contractors, servants, employees or licensees in connection with
the Loan Documents or the Development, or arising out of the construction/rehabilitation,
operation and/or management of the Development or the granting of the Loan to the Borrower;
and (ii) all reasonable costs, counsel fees, expenses or liabilities incurred in connection with any
such claim or proceeding brought thereon as such fees, costs, expenses or liabilities become due.
In the event that any action or proceeding is brought against Florida Housing, or any of its
directors, officers, members, officials, employees, or agents with respect to which indemnity
may be sought hereunder, the Borrower, upon written notice from the indemnified party, shall
Land Use Restriction Agreement 6
The Allen Apartments
EHCL'2008-002E
assume the investigation and defense thereof, including the employment of counsel and the
payment of all expenses. This provision shall survive the termination of this Agreement. The
indemnified party shall have the right to participate in the investigation and defense thereof and
may employ separate counsel with or without the approval and consent of the Borrower.
ARTICLE V
Consideration. In addition to other purposes, Florida Housing has authorized and made
the Loan to the Borrower as an inducement to the Borrower to operate the Development as set
forth in Paragraph 2.2. of this Agreement. In consideration of the issuance of the Loan by
Florida Housing for the foregoing purposes, Florida Housing and the Borrower have entered into
this Agreement.
ARTICLE VI
Reliance. In performing its duties hereunder, Florida Housing may rely upon statements
and certificates of the Borrower, and tenants of the Development believed to be genuine and to
have been executed by the proper person or persons,and upon audits of the books and records of
the Borrower pertaining to occupancy of the Development. In addition, Florida Housing may
consult with counsel, and the opinion of such counsel shall be full and complete authorization
and protection with respect to any action taken or suffered by Florida Housing in good faith and
in conformity with the opinion of such counsel. The Borrower may rely upon certificates of
tenants of the Development reasonably believed to be genuine and to have been executed by the
proper person or persons.
ARTICLE VII
Sale, Transfer or Refinancing of Development. The Loan, as to both principal and
interest, together with all other obligations under the Loan Documents, shall be assumable upon
sale,transfer or refinancing of the Development if the following conditions.
7.1. The proposed owner of the Development meets or satisfies the eligibility
requirements imposed by the Request for Proposals;
7.2. The proposed owner of the Development agrees to maintain all set asides and
other requirements of the Loan for the period originally specified or longer, and agrees to assume
the Borrower's obligations under this Agreement and the Loan Documents;and
7.3. The proposed owner receives a favorable recommendation from Florida Housing's
credit underwriter and approval by the Board of Directors of Florida Housing.
In the event the above-stated conditions are not met, the Loan as to both principal and
interest, as well as all other obligations due or accrued under the Loan Documents, shall be due
in full upon the sale, transfer or refinancing of the Development unless the consent of Florida
Housing shall have been obtained or the transfer is otherwise permitted under the Loan
Documents.
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EHCIl200S-002E
ARTICLE VIII
Term. This Agreement shall become effective upon its execution and delivery and shall
remain in full force and effect for thirty(30) years from the date of this Agreement,unless earlier
terminated pursuant to Article XII.
ARTICLE IX
Damage, Destruction or Condemnation of the Development. In the event that the
Development is damaged or destroyed or title to the Development, or any part thereof, is taken
by any governmental body through the exercise or the threat of the exercise of the power of
eminent domain, (subject to the rights of the Superior Mortgagee, if any, and the provisions of
the Superior regarding same),the Borrower shall deposit with Florida Housing
Superior Mortgage, if a n y,re ar g g
any insurance proceeds or any condemnation award, and shall promptly commence to rebuild,
replace, repair or restore the Development in such manner as is consistent with the Loan
Documents. Florida Housing shall make any such insurance proceeds or condemnation award
moneys available to provide funds for such restoration work. In the event that the Borrower fails
to commence or to • complete the rebuilding, repair, replacement or restoration of the
Development after notice from Florida Housing, Florida Housing shall have the right,in addition
to any other remedies granted in the Loan Documents or at law or in equity, to repair, restore,
rebuild or replace the Development so as to prevent the occurrence of a default hereunder.
ARTICLE X
Enforcement. If the Borrower defaults(by its action or inaction) in the performance of its
obligations under this Agreement or breaches any covenant, agreement or warranty of the
Borrower set forth in this Agreement, and if such default remains uncured for a period of thirty
(30) days after notice thereof shall have been given by Florida Housing to the Borrower (or for
an extended period approved.by Florida Housing if such default stated in such notice can be
corrected, but not within such thirty (30) day period, and if the Borrower commences such
correction within such thirty (30) day period, and thereafter diligently pursues the same to
completion within such extended period), then Florida Housing may terminate all rights of the
Borrower under this Agreement and may take any other action at law or in equity or otherwise,
whether for specific performance of any covenant in this Agreement or such other remedy as
may be deemed most effectual by Florida'Housing to enforce the obligations of the Borrower
with respect to the Development. If a default by the Borrower under this Agreement is not cured
within a reasonable time, Florida Housing shall institute foreclosure proceedings against the
Development,but only as provided in the Mortgage.
Notwithstanding any of the foregoing, Florida Housing will have the right to seek
specific performance of any of the covenants and requirements of this Agreement concerning the
construction and operation of the Development. •
•
ARTICLE XI
Recording and Filing; Covenants to Run with the Land.
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EHCLJ2008-002E
•
11.1. Upon execution and delivery by the parties hereto, the Borrower shall cause this
Agreement and all amendments and supplements hereto to be recorded and filed in the Official
Public Records of the County and in such manner and in such other places as Florida Housing
may reasonably request, and shall pay all fees and charges incurred in connection therewith.
11.2. This Agreement and the covenants contained herein shall run with the land and
shall bind, and the benefits shall inure to, respectively, the Borrower and Florida Housing and
their respective successors and assigns during the Term of this Agreement.
ARTICLE XII
Subordination and Foreclosure. In the event of a foreclosure and sale of the Land or
receipt of a deed in lieu of foreclosure pursuant to a default under the Superior Mortgage, if any,
related to the Development, this Agreement shall be null and void and of no further force and
effect, provided, however, that if a "Related Party" to the Borrower as defined in the Internal
Revenue Code should purchase the Development following a foreclosure or a deed in lieu of
foreclosure, the use restrictions shall be reinstated as of the date of transfer to any such Related
Party. • •
ARTICLE XIII
Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State,both substantive and governing remedies.
ARTICLE XIV
Notice and Effect. All notices and other communications to be made or permitted to be
made hereunder shall be in writing and shall be delivered to the addresses shown below or to
such other addresses that the parties may provide to one another in accordance herewith. Such
notices and other communications shall be given by any of the following means: (a) personal
service; (b) national express air courier, provided such-courier maintains written verification of
actual delivery; or (c) facsimile. Any notice or other communication given by the means
described in subsection (a) or (b) above shall be deemed effective upon the date of receipt or the
date of refusal to accept delivery by the party to whom such notice or other communication has
been sent. Any notice or other communication given by the means described in subsection (c)
above shall be deemed effective the date on which the facsimile transmission occurs or if such
date is not a business day on the business day immediately following the date on which the •
facsimile transmission occurs.
Florida Housing: Florida Housing Finance Corporation
227 North Bronough Street, Suite 5000
Tallahassee,Florida 32301-1329 •
Attention: Executive Director
Telephone No.: (850) 488-4197
Fax No.: (850) 488-9809
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EHCU2008-002E
with a copy to: Nabors, Giblin&Nickerson,P.A.
1500 Mahan Drive,Suite 200
Tallahassee,Florida 32308
Attention: lunious Brown,Esquire
Telephone No.: (850) 222-4070
Fax No.: (850)222-2198 •
Borrower: MBCDC: The Allen, LLC
2001 Washington Avenue
Miami,Florida 33139
Attention: Karl Kennedy
Telephone No.: (305) 538-0090
Fax No.: (305) 538-2863
with a copy to: Shutts&Bowen LLP
1500 Miami Center
201 S. Biscayne Boulevard
Miami,Florida 33131
Attention: Robert Cheng, Esq.
Phone: (305)358-6300
Fax: (305)381-9982
Servicer: First Housing Development Corporation of Florida
1715 N.Westshore Boulevard, Suite 700
Tampa,Florida 33607
Attention: Ed Busansky •
Telephone No.: (813)289-9410
Fax No.: (813) 289-5580
Any addressee may change its address by giving the other parties hereto notice of such
change of address in accordance with the foregoing provisions.
ARTICLE X'V
Miscellaneous.
15.1. Unless the context clearly requires otherwise,words of the masculine gender shall
be construed to include correlative words of the feminine and neuter genders and vice versa, and
words of the singular number shall be construed to include correlative words of the plural
number and vice versa. This Agreement and all the terms and provisions hereof shall be
construed to effectuate the purposes set forth herein and to sustain the validity hereof.
15.2. The terms and phrases used in the recitals of this Agreement have been included
for convenience of reference only and the meaning, construction and interpretation of all such
terms and phrases for purposes of this Agreement shall be determined by references to Article I
of this Agreement. The titles and headings of the sections of this Agreement have been inserted
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. I
for convenience of reference only and are not to be considered a part hereof and shall not in any
way modify or restrict any of the terms or provisions hereof and shall never be considered or
• or in ascertaining intent,if
given any effect in construing this Agreement or any provision hereof o g ,
any questions of intent shall arise.
15.3. If any provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining portions shall not in any way be affected or
impaired.
15.4. This Agreement may be simultaneously executed in multiple counterparts, all of
which shall constitute one and the same instrument and each of which shall be deemed to be an
original.
15.5. The provisions of Section 5.5 of the Mortgage are incorporated herein by this
reference.
[COUNTERPART SIGNATURE PAGES TO FOLLOW]
•
•
Land Use Restriction Agreement 11 .
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COUNTERPART SIGNATURE PAGE FOR
LAND USE RESTRICTION AGREEMENT
(The Allen Apartments/EHCL/2008-002E)
IN WITNESS WHEREOF, Florida Housing and the Borrower have caused this
Agreement to be executed and delivered on their behalf by their duly authorized representatives ,
as of the date first set forth above.
ATTEST: MBCDC: THE ALLEN,LLC,a Florida limited
liability company
By: Miami Beach Community Development
Corporation,a Florida not-for-profit
corporation,its sole member/manager
•
ilh
�; B
By: By:
Name: =s).c..-1-1-e r.4,-,e..4 . Roberto Datorre,President
Title: 4- ' r 1�.er
. f
STATE OF FLalgZID4
COUNTY OF 1)(1I1C
The foregoing instrument was acknowledged before me this 7 2 day of
October, 2009,by ROBERTO DATORRE, as President of the MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION, a Florida not-for-profit corporation, the sole member and
managing member of MBCDC: THE ALLEN, LLC, a Florida limited liability company, on
behalf of the not-for-profit corporation and the limit d liability company. Said person is
personally known to me or has produced a valid driver's icensys identification.
/44:i.===1-z-,=,_ ��77.. -°- Notary ublic,, tate of Florida
`�i'r J�¢n �13:1"(3Y U8127/i ie of Fw.�td Print Name: 1 may 7 oi, I i i S—C6
. L'4" a,L,.,,.1,..s:,:,v;00589125 My Commission Expires:� :��.._._._.-.-_ __ -- My Commission No.: 1
Land Use Restriction Agreement
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PAGE COUNTERPART SIGNATURE PAGE FOR
LAND USE RESTRICTION AGREEMENT
(The Allen Apartments/EHCL/2008-002E)
IN WITNESS WHEREOF, Florida Housing and the Borrower have• caused this
Agreement to be executed and delivered on their behalf by their duly authorized representatives
as of the date first set forth above.
FLORIDA HOUSING: •
FLORIDA HOUSING FINANCE
CORPORATION
Kevin L.Tatreau
Director of Multifamily Development
Programs
WITN'S ,S: / oer
Print name. , , ,i' -'4 ,r
-
�// . ( �1
P it nan�.e: _ • ea✓
STATE OF FLORIDA
COUNTY OF LEON
instrument was acknowledged before me on this 0.-eA day of October,
The foregoing g
2009, by Kevin L. Tatreau, as Director of Multifamily Development Programs of FLORIDA
HOUSING FINANCE CORPORATION, on behalf of said corporation. Such person is
personally known to me or has produced a valid d 'ver's cense as identification.
• f „-
4 .. - ,_. dAidtA •
�'' �
i r% JADE
'�-; M.OLIVER tary Public, State of Florida
c= Commission,DD 621850 Print Name:
.! =
' Expires December 12 2010
''S i � sarnsalttm IrcyFai awnme 415-231; My Commission Expires:
My Commission No.:
Land Use Restriction Agreement
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•
EXHIBIT"A"
Legal Description
Commencing at the NE corner of Block G as shown on the Plat of the resubdivision of Blocks G,
H,J and Triangular Tract as recorded in PIat Book 6, at Page 102, of the Public Records of Dade
County, Florida, thence run Northwesterly along the Southerly line of 21st street 225 feet to a
point; thence run in a Southwesterly direction along a line parallel to an 225 feet distant Westerly
from the Westerly line of Sheridan (now Park) Avenue 124.91 feet at the point of beginning of
the Tract of land herein described; thence continue along the last mentioned course a distance of
124.91 feet to the Northerly line of 20 street; thence run a Northwesterly direction along the
Northerly line of 20th Street a distance of 31.29 feet of the'point of curvature, P.C. of a circular
curve; thence run along the arc of a circular curve deflecting to the right and having for its
elements a central angle of 68.04 degrees and a radius of 30 feet a distance of 35.64 feet to the
point of tangency P.T. of said circular curve, said P.T. being on the Easterly line of Washington
Avenue; thence run tangent to the last mentioned circular curve along the Easterly line of
Washington Avenue a distance of 114.4 feet to a point; thence run in a Southeasterly direction
along a line parallel to and 124.91 feet distant Northerly from the Northerly line of 20th Street a
distance of 101.85 feet to the point of beginning of the tract of land herein described.
•
•
•
•
Land Use Restriction Agreement
The Allen Apartments
EHCU2008-002E A-1
•
EXHIBIT "B"
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
Re: THE ALLEN APARTMENTS/EHCL/2008-002E
The undersigned Authorized Borrower Representative of and on behalf of MBCDC:
THE ALLEN LLC, a public body corporate and politic duly created and existing under the laws
of the State of Florida(the`Borrower"),has read and is thoroughly familiar with the provisions
of the various loan documents associated with the making of a loan. by-FLORIDA HOUSING
FINANCE CORPORATION ("Florida Housing") to Borrower for the rehabilitation of The Allen
Apartments, in the principal amount of SEVEN HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($750,000) (the"Loan"), such documents including:
•
1. The Land Use Restriction Agreement, dated as of November 10, 2009, by and
between the Borrower and Florida Housing;
• 2. The Mortgage and Security Agreement, dated as of November 10, 2009, from the
Borrower to Florida Housing; and
3. The Construction Loan Agreement, dated as of November 10; 2009, by and
among the Borrower, Florida Housing and First Housing Development
Corporation of Florida(the"Servicer").
The undersigned hereby certifies that the Borrower is in full compliance with the
following requirements and is not in default under any of the following, except as set forth
below:
(i) that all terms and conditions set forth in the Land Use Restriction
Agreement, the Construction Loan Agreement and the Mortgage and
Security Agreement have been satisfied;
(ii) that all taxes and insurance premiums that came due have been paid by the
Borrower (and attached to this certificate are receipts evidencing such
payments); and
(iii) that all replacement reserve funds required by the Mortgage and Security
Agreement and by the Construction Loan Agreement have been retained
by the Borrower and reserved in a segregated bank account designated for
such funds..Attached to this certificate is a copy of the current bank
statement for the account (dated within 30 days of the date hereof) as
-evidence thereof.
Land Use Restriction Agreement
The Allen Apartments
EHCU2008-002E B-1
OR Bk 77082_ PG 434.9
LAST PAGE
The undersigned certifies that the Borrower is in default under the following documents:
(if none,please so state):
Date: /0 2 2 ' G,
MBCDC: THE ALLEN,LLC,a Florida limited
-liability company
By: Miami Beach Community Development
Corporation,a Florida not-for-profit
corporation,its sole member/manger
By: .�
Roberto ' ident
•
Land Use Restriction Agreement
The Allen Apartments
EltCU2OO8-OO2E C-2
• 1111111 11111 11111 1111111111 11111 11111 11111111
CFN 201180668005
OR Bk 27848 Pas 426? - 42771 (9ass)
• This Instrument Prepared By: RECORDED 10/05/2011 12:22:13
HARVEY R
Brenda Kuhns Neuman,Esq. i1VI)t► CLERK OF COURT
ptIAttl—DADE COUNTY' FLORIDA
Record and Return to:
Miami-Dade County
Department of Housing and Community Development
Overtown Transit Village North
701 NW r"Conn,tai°Floor
Miami,Florida 33136
Attention: Cynthia Brannon
MIAMI-DADE COUNTY
RENTAL REGULATORY AGREEMENT
WHEREAS,pursuant to Resolution No.R-1071-09 adopted by the Miami-Dade County
Board of County Commissioners, on September 1, 2009, MIAMI-DADE COUNTY
(hereinafter referred to as the "County" or"DHCD") is authorized to loan FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($500,000.00),of SURTAX,.Junds,or funding source
that the County in its sole discretion shall determine,(hereafter referred to as the"County Loan")
to MBCDC:THE ALLEN, LLC, a Florida limited liability company, its heirs, successors and
assigns (hereinafter referred to as the "Owner")for the purposes outlined and pursuant to the
conditions set forth in the Promissory Note,Mortgage and Security Agreement,Assignment of
Leases, Rents and Profits, the Loan Agreement, and the 2010 Surtax Agreement between the
County and the Owner and the Note In favor of the County executed simultaneously with this
Rental Regulatory Agreement(the"Agreement")(hereinafter referred to as"Loan Documents");
and
WHEREAS, in connection with receipt of the County Loan, the Owner agrees to
maintain the rents at certain prescribed rates,as set forth in this Agreement;and
NOW,THEREFORE, for and in consideration of Ten dollars ($10.00), the promises
and covenants contained in this eement and for other good and valuable consideration
received and acknowledged this/."day ofSVOTOof e,2011, the Owner, whose address is
945 Pennsylvania Avenue,Miami Beach,Florida 33139,its successors and assigns,and Mianii-
Dade County, a political subdivision of the State of Florida (the"County")having a principal
address of 111 NW First Street,Miami,Fl.33128,Attn:County Mayor,through its Department
of Housing and Community Development(DHCD)hereby agree as follows:
PROPERTY ADDRESS: 2001 Washington Avenue
Miami Beach,Fl.33139
LEGAL DESCRIPTION
01?PROPERTY: The real property legally described and attached hereto in Exhibit
A and located in Miami-Dade County (hereinafter referred to as
the"Property")
DWELLING UNITS: 39 units
1
Book278481Page4269 CFN#2011 0668005 Page 1 of 9
W11NESSEdH:
I. Owner agrees with respect to the Property for the period beginning on the date of
recordation of the Loan Documents,and ending on the last day of the thirtieth(30th)year
after the year in which the Project is completed,that:
a) Ten(10)of the units must have rents for very-low income families(33%of area
median income), twenty-eight (28) units for low or moderate income families
(60%of the area median income)and one(I)unit for low or moderate income
families(50%of the area median income)adjusted for family size,minus tenant-
paid utilities. Accordingly, the maximum initial approved rental rates for this
property are indicated in Exhibit B attached hereto. In the case of Section 8 units,
the HUD approved contract rent is allowed.
b) This Agreement shall be a recorded restrictive covenant on the Property, and all
buildings and other improvements"constructed or to be constructed thereon
(collectively, the "Project"). The subject matter of this Agreement and the
covenants set forth herein touch and concern the Property. It is the intent of the
parties that this Agreement and the covenants set forth herein run with the
Property. This Agreement shall be binding on the Property, the Project, and all
n
portions thereof, and upon any purchaser, grantee,transferee,owner or l essee or
any portion thereof, and on the heirs, executors, administrators, devisees,
successors and assigns of any purchaser, grantee, owner or lessee and on any
other person or entity having any right,title or interest in the Property,the Project,
or any portion thereof,for the length of time that this Agreement shall be in force.
Owner hereby makes and declares these restrictive covenants which shall run with
the title to said Property and be binding on the Owner and its successors in
interest, If any, for the period stated In the preamble above, without regard to
payment or satisfaction of any debt owed by Owner to the County or the
expiration of any Contract between the Owner and the County.
c) The above rentals will include the following services to each unit: refrigerator,
small range/oven, wood cabinets,new through-wall HVAC air conditioning, one
bathroom with typical plumbing fixtures including a sink with small vanity,
tub/shower and toilet. Five of the room will solely include shower and will be
ADA accessible,window treatments,cable or satellite TV hook-up,window sills,
steel exterior entry door frames, double compartment kitchen sink, vinyl tile in
kitchen, new bathroom cabinets, new plumbing fixtures in the kitchen and
bathroom,ceramic tile in bathrooms and ceiling fans. Owner will be responsible
for trash pick-up.
d) Owner agrees that upon any violation of the provisions of this agreement, the
County,through its agent,DHCD may give written notice thereof to the Owner,
by registered mall,at the address stated in this agreement,or such other address or
addresses as may subsequently be designated by the Owner in writing to DHCD,
and in the event Owner does not cure such default(or take measures reasonably
2
61)
Book27848/Page4270 CFN##20110668005 Page 2 of 9
satisfactory to DHCD to cure such default),within thirty(30)days after the date
of notice, or within such further time as DHCD may determine Is necessary for
correction, DHCD may, without further notice, declare a default under the
Mortgage and/or this Agreement, and effective upon the date of such default,
DHCD may:
i) Declare the whole indebtedness under the Note evidencing the Loan
immediately due and payable and then proceed with foreclosure of the
Mortgage;
11) Apply to any court,County,State or Federal,for any specific performance
of this agreement;for an injunction against the violation of this agreement;
or for such relief as may be appropriate since the injury to DHCD arising
from a default remaining uncured under any of the terms of this agreement
would be irreparable, and the amount of damage would be difficult to
ascertain,
Notwithstanding the foregoing,the County hereby agrees that any cure of
any default made or tendered by the Owner's managing member,Miami
Beach Community Development Corporation,Inc.,shall be deemed to be
a cure by Owner and shall be accepted or rejected on the same basis as If
made or tendered by Owner. Copies of all notices which are sent to
Owner under the terms of this Agreement shall also be sent to Miami
Beach Community Development Corporation, Inc., 945 Pennsylvania
Avenue,Miami Beach,Florida 33139.
e) Owner further agrees that it will,during the term of this Agreement: furnish each
resident at the time of initial occupancy, a written notice that the rents to be
charged for the purposes and services included in the rents are approved by the
County pursuant to this Agreement; that they will maintain a file copy of such
notice with a signed acknowledgment of receipt by each resident; and, that such
notices will be made available for inspection by the County during regular
business hours.
f) Owner agrees that the unit shall meet the energy efficiency standards promulgated
by the Secretary of the United States Department of Housing and Urban
Development (hereafter "HUD"), the Florida Housing Finance Corporation
(hereafter"FHFC"),and/or Miami-Dade County,as applicable.
II. DHCD and Owner agree that rents may increase as median income increases as published
by HUD. Any other adjustments to rents will be made only if DHCD (and HUD if
applicable), in their sole and absolute discretion, find any adjustments necessary to
support the continued financial viability of the project and only by an amount that DHCD
(and HUD if applicable)determine is necessary to maintain continued financial viability
of the project.
Owner will provide documentation to justify a rental increase request not attributable to
increases in median income. Within thirty(30) days of receipt of such documentation,
3
Book27848/Page4271 CFN#20110668005 Page 3 of 9
DHCD will approve or deny,as the case may be,in its sole and absolute discretion,all or
a portion of the rental increase in excess of the amount that is directly proportional to the
most recent increase in Median Annual Income. In no event,however,will any increase
directly proportional to an increase in Median Annual Income be denied.
III. Except as otherwise noted, all parties expressly acknowledge that DHCD shall
perform all actions required to be taken by Miami-Dade County pursuant to
Paragraphs 4,5,6 and 7,hereof for the purpose of monitoring and implementing all
the actions required under this Agreement. In addition,thirty(30) days prior to the
effective date of any rental increase,the Owner shall furnish DHCD with notification
provided to tenants advising them of the increase.
IV. Occupancy Reports.
The Owner shall, on an annual basis,furnish DHCD with an occupancy report, which
provides the following information:
A) List of all occupied apartments,Indicating composition of each resident family,as
of the end date of the reporting period. Composition includes,but is not limited
to:
1. Number of residents per units.
2. Area median Income(AIM)per unit.
3. Race,Ethnicity and age per unit(Head of Household).
4. Number of units serving special need clients.
5. Gross Household Rent
6. Maximum rent per unit.
13) A list of all vacant apartments,as of the end date of the reporting period.
C) The total number of vacancies that occurred during the reporting period.
D) The total number of units that were re-rented during the reporting period,stating
family size and income.
E) The Owner shall upon written request of DHCD allow representatives of DHCD
to review and copy any and all of its executed leases with tenant residing on the
Property.
4
Book27848/Page4272 CPN#20110668005 Page 4 of 9
V. Inspections
Pursuant to 421 J.S.C.§ 12755,the Owner shall maintain the Property in compliance with
all applicable federal housing quality standards,receipt of which is acknowledged by the
Owner, and contained in Sec. 17-1, et seq.,Code of Miami-Dade County,pertaining to
minimum housing standards(collectively,"Housing Standard?).
A) DHCD shall annually inspect the Property, including all dwelling units and
common areas, to determine if the Property is being maintained in compliance
with federal Housing Quality Standards and any applicable Dade County
Minimum Housing Codes. The Owner will be furnished a copy of the results of
the inspection within thirty (30) days, and will be given thirty (30) days from
receipt to correct any deficiencies or violations of the property standards of the
Dade County Minimum Housing Codes or Housing Standards.
13) At other times,at the request of the Owner or of any tenant,DHCD may inspect
any unit for violations to the property standards of any applicable Dade County
Minimum Housing Codes or Housing Standards. The tenant and the Owner will
be provided with the results of the inspection and the time and method of
compliance and corrective action that must be taken.
C) The dwelling units shall contain at least one bedroom of appropriate size for each
two Persons.
VL Lease Agreement,Selection Policy and Management Plan
Prior to initial rent-up and occupancy,the Owner will submit the following documents to
DHCD:
A) Proposed form of resident application.
B) Proposed foam of occupancy agreement.
C) Applicant screening and tenant selection policies.
D) Maintenance and management plan which shall include the following
information:
1. A schedule for the performance of routine maintenance such as up-
keep of common areas,extermination services,etc.
2. A schedule for the performance of non-routine maintenance such
as painting and reconditioning of dwelling units, painting of building
exteriors,etc.
3. A list of equipment to be provided in each dwelling unit.
4. A proposed schedule for replacement of dwelling equipment.
5
. 031
Book27848/Page4273 CFN#20110668005 Page 5 of 9
5. A list of tenant services,if any,to be provided to residents.
The Owner agrees that the County has the right to refer eligible applicants for housing.
The Owner shall not deny housing opportunities to eligible,qualified families,including
those with Section 8 Housing Choice Vouchers,unless the Owner is able to demonstrate
a good cause basis for denying the housing as determined by DHCD in its sole and
absolute discretion
VII. Financial Reports
A) Annually,the Owner shall transmit to the County a certified annual
operating statement showing project income,expenses,assets,liabilities,
contracts,mortgage payments and deposits to any required reserve accounts(the
"Operating Statement").
DHCD will review the Operating statement to insure conformance with all
provisions contained in this Agreement.
B) The Owner will create a reserve for maintenance to be funded$300.00 per
unit per year. This reserve may be combined with reserve accounts required by
any other parties making loans to Owner and will be deemed satisfied by any
deposits made by Owner in accordance with loan documents$300.00 per unit per
year.
VIII, Action By or Notice to the County
Unless specifically provided otherwise herein,any action to be taken by,approvals made
by, or notices to or received by the County required by this Agreement shall be taken,
made by,given or delivered to:
Department of Housing and Community Development
701 N.W. 1 Court
1e Floor
Miami,Florida 33136
Attn:Director
Copy to:
Miami-Dade County Attorney's Office
111 N.W.1 Street
Suite 2810
Miami,Florida 33128
or any of their successor agencies or departments.
6
Book278481Page4274 . CFN#20110668005 Page 6 of 9
- IX. Recourse:
In the event of a default by the Owner under this Agreement, Lender shall have all
remedies available to it at law and equity.
IN WITNESS WHEREOF, County and Owner have caused this Agreement to be
executed on the date first above written.
OWNER:
MBCDC:The Allen LW
a Florida limited liability company
By:Miami Beach Community Development,Inc.
its managing member
By:,
Rob o ,President
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE)
The foreg i Rental R gulat y Agreement was sworn to,subscribed and acknowledged
before me this ay of ,2011,by Roberto Y)atorre,President of Miami Beach
Community De opment Corpora on Inc., a Florida not-for-profit corporation as managing
member of MBCDC:The Alien,LLC,a Florida limited liability company, on behalf of and as
an act of that limited liability company. Ile is personally known to me or has produced
satisfactory identification
ss" Notary Pub c State of fbn0• _
ap '+' Mette Pneda
:kV) My Cgmmeb51On DD8087
Expiresoln2t2a�2 !Voter Public
• < Florida at Large
MIAMI-D• ,FLORIDA
By:
CARLOS A.GIMENBZ
I' COUNTY MAYOR
ATTEST:
HARVEY RUYIN,CLERK
By:
DEPUTY CLERK
7
61)
Book27848/Page4275 CFN#20110668005 Page 7 of 9
. •
EXHIBIT"A"
j 1EGAL DESCRIPTIOO
Commencing at the NB comer of Block G as shown on the Plat of the resubdivision of Blocks 0,
H,I and Triangular Tract as recorded in Plat Book 6,Page 102,of the Public Records of Dado
County, Florida,run Northwesterly along the Southerly line of 21st street 225 feet to a point;
thence run in a Southwesterly direction along a line parallel to an 225 feet distant Westerly from
the Westerly line of Sheridan (now park)Avenue 124.91 feet at the point of beginning of the
Tract of land herein described; thence continue along the last mentioned course a distance of
124.91 feet to the Northerly line of 20 street; thence run a Northwesterly direction along the
Northerly line of 20th Street a distance of 31.29 feet of the point of curvature,P.C.of a circular
curve; thence run along the arc of a circular curve deflecting to the right and having for its
elements a central angle of 68.04 degrees and a radius of 30 feet a distance of 35.64 feet to the
point of tangency P.T.of said circular curve,said P.T.being on the Easterly line of Washington
Avenue; thence run tangent to the last mentioned circular curve along the Easterly line of
Washington Avenue a distance of 114.4 feet to a point;thence run in a Southeasterly direction
along a line parallel to and 124.91 feet distant Northerly from the Northerly line of 20th Street a
distance of 101.85 feet to the point of beginning of the tract of land herein described.
•
8
Book27848/Page4276 CFN#20110668005 Page 8 of 9
OR BF( 27848 PG 4277
LAST PAGE
AM-MU
Rents:
Number of Units Type Gross Rent Utility Net Rent
26 Studio/1 bath $616 57 $559
10 Studio/1 bath $406 57 $349
`2 lbedroom/1 bath $660 69 $591
1 tbedroomll bath $660 69 $591
At the discretion of the County,up to twenty percent(20%)of the rental units,per project,may be
designated for Housing Choice Voucher (Section 8) subsidy, either project-based or tenant-based.
The Owner shall not deny housing opportunities to eligible, qualified Housing Choice Voucher
(Section 8)applicants referred by the County, unless good cause is documented by the Owner and
submitted to the County.
•
NOTE: LOAN DOCUMENT INFORMATION TO BB
PROVIDED FOLLOWING RECORDING OF
MORTGAGE
Mortgage Document No: Date Recorded: /0'JSs' 1
Book Number:_ DM Page Number: tiZQ
County: MIAMI DADE
State: FLORIDA
9
th
Book27848/Page4277 CFN#20110668005 Page 9 of 9