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HomeMy WebLinkAboutResolution Zoning 98-Z- 24 RESOLUTION NO, 98- Z-'l.lf A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING FLOOR AREA RATIO BONUS FOR PROJECT APPROVED BY RESOLUTION NO, 98-Z-9, LOCATED AT 18101-18145 COLLINS AVENUE AND ACCEPTING THE AGREEMENT ATTACHED AS EXHIBIT "A" AND THE BEACH ACCESS AGREEMENT ATTACHED THERETO AS EXHIBIT "B" IN ACCORDANCE WITH SECTION 33-222 OF THE CODE OF MIAMI-DADE COUNTY; PROVIDING FORAN EFFECTIVE DATE. WHEREAS, as D.P. Colonial, LLC, received an approval of a special exception site plan approval to permit a proposed multi-family housing development, located at 18101-18145 Collins Avenue, consisting of an apartment-hotel apartment building, permitting various non-use variances, providing that the floor area ratio be 2.5 and a density of 50 units per acre be approved subject to certain conditions in Resolution No. 98-Z-9; and WHEREAS, applicant wishes to avail themselves of the floor area ratio bonus offered by Section 33-222 ofthe Code of Miami-Dade County as adopted by Section 8.3 ofthe City of Sunny Isles Beach by granting a 45- foot easement; NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, THAT: 1. The agreement attached as Exhibit "A" and the easement agreement attached thereto as Exhibit "B" be and the same as hereby approved in accordance with the terms of Section 33- 222 of the Code of Miami-Dade County as adopted by the City of Sunny Isles Beach. 2. This Resolution shall become effective upon adoption. ~~ ~ David Samson, Mayor -1- APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Vote: l.\ - \ Mayor Samson Vice Mayor Turetsky Commissioner Iglesias Commissioner Kauffman Commissioner Morrow Attachment( s) Floor Area Ratio Bonus Res-- DP Colonial ~(Yes) --1L... (Yes) V'(Yes) _(Yes) V (Yes) Moved by: ~~ Seconded by: . ... ~ ~a..A _(No) _(No) _(No) yo' (No) _(No) -2- ., .' , ~~t I 8398 PG 3768 AGREEMENT 98R61.3355 1998 DEe: 21 07:3-4 THIS AGREEMENT is made and entered into as of the ~ day ofO~ 1998, by and between D.P. COLONIAL, LLC, a Florida limited liability company ("Colonial") and THE CITY OF SUNNY ISLES BEACH, a Florida municipal corporation (the "City"). R E C I TAL S: A WHEREAS, Colonial is the developer of a certain apartment, apartment/hotel, and/or condominium project to be located on that certain property lying and situate in Sunny Isles Beach, Miami-Dade County, Florida, and more particularly described on Exln'bit "A" attached hereto (the "Project"); B. WHEREAS, in connection with the City's approval of the Project, Colonial has agreed to grant and create, and the City desires to obtain, on the terms and conditions hereinafter set forth, an Easement over and across a portion of the property for the purposes hereinafter set forth; NOW, THEREFORE, for Ten and No/100 ($10.00) Dollars and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and with the intent to be legally bound, Colonial and the City hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Delivery of Easement. Provided that the City issues to Colonial, its successors or assigns, a Certificate of Occupancy/ies for the Project with a Floor Area Ratio of 2.7, Colonial agrees to execute and deliver to the City the Beach Access Easement Agreement (the "Easement Agreement") attached hereto as Exhibit "B" to allow non- exclusive pedestrian and official ingress and egress over a portion of the property owned by Colonial, which portion ofproperty shall be at least 45 feet wide, inclusive of a 12' easement descn'bed in that City resolution approving the Project, all as more particularly set forth in the Beach Access Easement Agreement. In the event, however, that Grantor does not request a certificate of occupancy/ies for buildings or structures on the Property that are in excess of a 2.5 Floor Area Ratio, then this Agreement shall be of no further force and effect. In the event that Colonial seeks certificates of occupancy for buildings or structures on the Property that in excess of a 2.5 floor area ratio but less than a 2.7 floor area ratio, then the legal description of the Beach Access Easement shall be modified to reduce the size of said easement area by a ratio of 1 square foot of easement area for each 2 square feet of floor area ratio below 2.7, the location of such reduction in square footage to be mutually agreed upon by the parties. ~, .. ~tt '8398 l'G 3769 3. Binding Effect. This Agreement shall be binding upon Colonial and the City, and their respective successors and assigns. 4. Attorneys' Fees. If any legal action, proceeding, arbitration or hearing is brought by either party to this Agreement to resolve a dispute hereunder or to enforce the terms and conditions hereot: then the prevailing party shall be entitled to recover reasonable attorneys' fees and court costs incurred at trial and all appellate levels. 5. Miscellaneous. The parties further agree as follows: (a) The parties acknowledge and agree that this Agreement is fully and adequately supported by consideration and is fair and reasonable. The parties further acknowledge and agree that: (i) each party has had the opportunity to consult with, and has in fact consulted with, such professionals, experts and legal counsel of its choice as such party may have desired with respect to all matters settled and resolved herein, (ii) each party has participated fully in the negotiation and preparation of this Agreement, and (ill) each party has carefully reviewed this Agreement and is entering into same freely. Accordingly, this Agreement shall not be more strictly construed against either party. (b) Each party represents and warrants to the other that the execution and delivery of this Agreement has been duly approved by all requisite corporate and/or partnership action (as applicable) required to be taken by such party. ( c) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. (d) In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. ( e) In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and paragraph headings shall be disregarded. (t) All of the exhibits attached to this Agreement are incorporated in, and made a part ot: this Agreement. 6. Entire Agreement. This Agreement constitutes the full and entire agreement and understanding between the parties with respect to the subject matter hereot: and there are no agreements, representations or warranties except as specifically set forth herein. All prior discussions, negotiations, and writings of any kind between Colonial and the City are fully merged into this Agreement and are to be construed to be of no further force or effect, it being the -2- , ~~~ I 8398 PG 3770 intention of the parties that this Agreement shall serve as the sole and entire expression of their agreement and understanding. This Agreement may not be amended or modified except by an instrument in writing signed by the party against whom enforcement of such amendment or modification is sought. EXECUTED as of the day and year first above written. Witnesses: D.P. COLONIAL LLC, a Florida Limited Liability Company By: \L ry-Fl~ By: ~ . t9 ~ ~~ \\tS;f,; ~ Approved' as to form and sufficiency ~~.~ 1 Attorney - 3 - ~~t 18398 PG 377 f EXHIBIT "A" The North 350 feet of Tract "P", AMENDED PLAT OF NORTH BISCA YNE BEACH, according to the Plat thereof: recorded in Plat Book 44, Page 43, of the Public Records of Dade County, Florida, AND The South 100 feet of the South 200 feet of Tract "0", measured at right angles to the South boundary of said Tract "0", of the AMENDED PLAT OF NORTH BISCAYNE BEACH, according to the Plat thereof: recorded in Plat Book 44, Page 43, of the Public Records of Dade County, Florida. EXHIBIT "B" This instrument prepared by (or under the supervision of), and after recording should be returned to: ~~t I 8398 PC 3772 Clifford A. Schulman, Esq. Greenberg Traurig 1221 Brickell Avenue Miami, Florida 33131 S ace Reserved for Clerk of Court BEACH ACCESS EASEMENT AGREEMENT THIS BEACH ACCESS EASEMENT AGREEMENT (the "Agreement") is made and entered into as of the ~ day of c)du~, 19j!, by and between D.P COLONIAL LLC, a Florida limited liability company ("Grantor"), having an address of 89 5th Avenue, 11th Floor Rear, New York, New York 10003, and THE CITY OF SUNNY ISLES BEACH, a municipal corporation existing under the laws of the State of Florida ("Grantee"), having an address of c/o City Manager, 17070 Collins Avenue, Suite 250, Sunny Isles Beach, Florida 33360. R E C ! I 8 ~ S: WHEREAS, Grantor is the developer of a certain apartment and apartment/hotel project to be known as located on that certain property lying and situate in Sunny Isles Beach, Miami-Dade County, Florida, and more particularly described on Exhibit "A" attached hereto (the "Project"); WHEREAS, Grantor is the owner of the portion of the Project more particularly described in Exhibit "B" attached hereto and by this reference made a part hereof (the "Easement Parcel") and WHEREAS, in connection with Grantee's approval of the Project, Grantor has agreed to grant and create, and Grantee desires to obtain, on the terms and conditions hereinafter set forth, an Easement (as hereinafter defined) over and across the Easement Parcel for the purposes hereinafter set forth. ~~t I 8398 PC 3773 NOW THEREFORE, Grantor, in consideration of Ten ($10,00) Dollars, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee hereby agree as follows: 1, Recitals, The foregoing recitals are true and correct and are incorporated herein as if repeated at length, 2, Grant of Easement. Grantor hereby grants to Grantee a non-exclusive easement (the "Easemenf') in favor of Grantee over and across the Easement Parcel solely for: (a) pedestrian ingress and egress from Collins Avenue to the beach lying easterly of the Easement Parcel between the hours of 9:00 a,m, and 9:00 p.m, (eastern standard time), and (b) the personnel of the police and fire departments and other governmental authorities having jurisdiction over the Easement Parcel while engaged in the performance of their official duties. Grantee may permit members of the public to also use the Easement Parcel to the same extent as the Grantee as provided in clause (a) above. 3. Desion, Construction and Maintenance of Easement Parcel and Improvements. Grantor and its successors and assigns shall have the exclusive right to design, build, furnish and maintain any and all improvements (including but not limited to landscaping, irrigation and lighting) located within the Easement Parcel. The design of and any and all materials to be used for any and all improvements within the Easement Parcel shall be presented to the Grantee for its approval prior to construction of such improvements, which approval shall not be unreasonably withheld or delayed. Grantor shall at all times maintain the Easement Parcel (including any and all improvements which may be constructed thereon from time to time) in good condition and in a safe, clean and reasonably attractive manner, In the event that Grantor fails to maintain the Easement Parcel in the condition described in this Section 3, then the Grantee may give notice of default to the Grantor, and the Grantor shall have thirty (30) days following the date of receipt of such notice to restore the Easement Parcel to the required condition, or in the event the restoration cannot be completed within such thirty (30) day period, to commence restoration and diligently pursue same to completion, In the event that the Grantor fails to restore or commence restoration and diligently pursue same within such thirty (30) day period, then the Grantee may restore the Easement Parcel to its required condition and thereafter, the Grantor shall reimburse the Grantee for the reasonable costs of such restoration within thirty (30) days following receipt by the Grantor of a reasonably documented invoice for same. Notwithstanding the foregoing, in the event that any repairs, replacements or maintenance is required as result of Grantee's misuse or neglect of the -2- ~~t I 8398 PG 3774 Easement Parcel, said repairs, replacements and/or maintenance shall be the obligation of the Grantee at the Grantee's sole cost and expense. 4. Mechanic's Liens, Grantee shall keep the Easement Parcel (and all portions thereof) at all times free of mechanics' and/or construction liens and any other liens for labor, services, supplies, equipment or materials purchased or procured, directly or indirectly, by or for Grantee. Grantee agrees that it will promptly pay and satisfy all liens of contractors, subcontractors, mechanics, laborers, materialmen and others of like character, and will indemnify the Grantor against all liabilities, expenses, costs and charges, including, without limitation, bond payments for release of liens and attomeys' fees and costs reasonably incurred in and about the defense of any suit in discharging the Easement Parcel (or any portion thereof) from any liens, judgments or encumbrances, caused or suffered by or through Grantee, In the event any such liens shall be made or filed, Grantee shall bond against or discharge same within thirty (30) days after receiving written notice of the filing of same, Grantee shall not have any authority to create any liens for labor or material on the Easement Parcel and all persons contracting with Grantee for the perfonnance of any services, supply of any materials or provision of any labor for any work done in, on or around the Easement Parcel, and all materialmen, contractors, suppliers, mechanics and laborers ~re hereby charged with notice that they must look solely to Grantee to secure payment of any bill for work done or materials fumished at the request or instruction of Grantee. 5. Compliance With Laws. The beneficiaries of the Easement shall at all times observe in the use of the Easement Parcel all applicable municipal, county, state and federal laws, ordinances, codes, statutes, rules and regulations. 6, Reservation, Grantor hereby reserves all rights of ownership in and to the Easement Parcel which are not inconsistent with the Easement, including, without limitation: (a) the right to grant further non-exclusive easements on, over and/or across the Easement Parcel (Le. utility and/or access easements), (b) the right to use the Easement Parcel for all uses not interfering or inconsistent with the uses permitted herein, including, but not limited to: vehicular access and ingress and egress to, over, and from the Easement Property and the Property; service access to, over and from the Easement Property and the Property; installation, maintenance and use of utility facilities and access therefore and maintenance thereof; the right to conduct any activity upon the Easement Parcel which promotes the security of the Easement Parcel or the Property or any persons or property located thereon, to the extent permitted by applicable law, as long as public access to the beach through the Easement Parcel is reasonably maintained during the hours of operation noted hereinabove; -3- ~~t I 8398 PG 3775 and the right to construct and maintain any signs within the Easement Parcel as may be permitted by applicable law; and (c) the exclusive right to design, build, furnish and maintain any and all improvements (including but not limited to landscaping and lighting) located within the Easement Parcel. 7, Indemnification, Subject to the provisions of Section 768,28, Florida Statutes, Grantee hereby agrees, and all parties by virtue of their use of the Easements shall be deemed to have agreed, to jointly and severally indemnify, defend and hold harmless the Grantor (and all of its members, officers, directors, employees, successors and assigns) from and against any and all liabilities, damages, claims, costs or expenses whatsoever (including all reasonable attorneys' fees and costs whether suit be brought or any appeals be taken therefrom) arising from, growing out of or connecting in any way with any improper use of the Easement and the Easement Parcel. The grantor hereby agrees, and all parties by virtue of their use of the Easements shall be deemed to have agreed, to jointly and severally indemnify, defend and hold harmless the Grantee (and all of its members, officers, directors, employees, successors and assigns) from and against any and all liabilities, damages, claims, costs or expenses whatsoever (including all reasonable attorneys' fees and costs whether suit be brought or any appeals be taken therefrom) arising from, growing out of or connecting in any way with failure of the Grantor to maintain the Easement and the Easement Parcel as provided in Section 3. 8. Enforcement. The provisions of this Agreement may be enforced by all appropriate actions at law and in equity by the Grantor and/or the respective fee owners from time to time of the Project, with the prevailing party in any such action entitled to reimbursement of reasonable attorneys' fees and costs incurred at trial and all appellate levels, 9. Construction, The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation hereof. All of the parties to this Agreement have participated fully in the negotiation of this Agreement, and accordingly, this Agreement shall not be more strictly construed against anyone of the parties hereto, In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. 10. Notices. Any and all notices required or desired to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand or three (3) business days after deposit in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to the applicable party to the address set -4- ~~t 18398 PG 3776 for such party set forth at the top of this Agreement (or to such other address as either party shall hereafter specify to the other in writing). 11. Severability. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed in full force and effect. 12. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, 13. Amendments: Termination. This Agreement may not be amended, modified or terminated except by written agreement of the parties hereto. Further, no modification or amendment shall be effective unless in writing and recorded in the Public Records of Miami- Dade County, Florida; provided, however, to the extent that any portion of the Project is submitted to the condominium form of ownership (each portion to referred to as a "Condominium Parcel"), then, as to that portion or portions, the instrument of amendment or modification shall be executed by the applicable condominium association(s) in lieu of the fee owners of the Condominium Parcel(s) of the respective properties and their mortgagees, 14. Entire Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supercedes all prior agreements, understandings and arrangements, both oral and written, between the parties with respect thereto. IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement day and year first above written.:.----- D,P Colonial LLC, a Florida ::ned Iia~\~ Name: ~ ~1..'" Title: ~ \....'- fPrt "-,4e(. [CORPORATE SEAL] The foregoing Agreement was acknowledge OrA-r~ c....., 19!i9. by M. Oe'l.e.k me this L day of , as of STATE OF FLORIDA ) )ss. COUNTY OF MIAMI-DADE ) - 5 - .. ~~t I 8398 PG 3777 D.P Colonial LLC, a Florida limited liability company. is personally kno~*.""""""A ~~~~ e, ~~~II~ [NOTARIAL ~'X~~~~~...tSS"ON~...~ ~ r. "'7 .. ~ ~ .. ~ ..'-" . 7g,. . S ~ .~ V' """lP \ ~ :* : . 30 ::. ... .*- - . . = %~ \. Ice 435560 j II ~-g.. ~ "~'''''A'' '(to;- ..t..~!iO ~.~.:;; 7:f......u ..~~# ~ A. ...... 1\11 ..c.Y,~ ~ fl8i:.....~ (), .,. ~/!u~~~\" ~,~ APPROVED AS TU'",",,",~ND CORRECTNESS: ~._~ AlTORNEY ~perSOnallY appeared before me and Notary: ~ Print Name: t; tt Dr-~ Notary Public, State of Florida My Commission Expires: S -( -0.. ~ off'lClAl. ~ecQRDS ~ ,"^,,~p IN "...... (ibC)"I~ RE"'''''' ,ou"'" of' ~QII. v."lI'tllP "1~'Jt'1 f\\N\~~t ~..,...@ MIAMI/SCHULMANCl958562Ikjmq03l.DOC/1 Gm.98 -6-