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HomeMy WebLinkAboutResolution Zoning 98-Z- 28 RESOLUTION NO. 98-Z-28 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING THE REQUEST OF CASTELITA INVESTMENT CORP,/M & N PROPERTIES, L.L.c./D.P. CARAVAN L.L.C. FOR NON USE VARIANCES, SUBJECT TO CERTAIN CONDITIONS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Castelita Investment Corp.1M & N Properties L.L.C./D.P. Caravan L.L.C., has applied to the City Commission of the City of Sunny Isles Beach for the following: 1. Special Exception for site plan approval to permit an apartment development. 2. Non Use Variance oflot coverage requirements to permit proposed development with a lot coverage of 49% (40% permitted). 3. Non Use Variance of floor area ratio (F.A.R.) requirements to permit a floor area ratio of 2.916 for the proposed development, provided request is made to the City to accept dedication of an 80 ft. easement to acquire F.A.R. bonus increase in accordance with Sec. 33.222 to reduce F.A.R. requirement to 2.5 (2.0 F.A.R. permitted). 4. Non Use Variance of setback requirement to permit proposed building to setback 146 ft (179 ft required) from the rear (east) property line. 5. Non Use Variance of setback requirement to permit proposed building to setback 31.16 ft (202 ft required) from the interior side (south) property line and setback 87.67 ft ( 131 ft required) from the interior side (north) property line. 6. Non Use Variance of height requirements to permit proposed building with a height varying from (24 floors )256.33 ft to (39 floors)396.33 ft ( 76.21 ft to 370 ft permitted height). SUBJECT PROPERTY: Tract 'D' of Amended plat of North Biscayne Beach Pb 44 Pg 42 of the public records of Dade County, said North and South property lines extend Easterly to the Erosion Control Line, said line recorded in Pb 134 Pg 47 ofthe public records of Dade County. ADDRESS: 19101-19111-19115 Collins Avenue; and WHEREAS, a public hearing of the City Commission was advertised and held as required by law and all interested parties concerned in the matter were heard, and upon due and proper Resolution 98-Z-28/Castelita -1- consideration having been given to the matter and to the positive recommendations of both the Zoning and Code Administrator and the Building Official; NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, THAT: 1. Items 1 through 6, requests for Non Use Variances, are hereby approved subject to the following conditions: A. Item 6 on Page 1 of this Resolution is hereby amended to read as follows: "Non Use Variance of height requirements to permit proposed building with a height varying from 256.33 ft to 396.33 ft. B. That a site plan be submitted to and meet with the approval of the Building Official upon the submittal of an application for a building permit; said plans to include among other things but not limited thereto, location of structure or structures, types, sizes and location of signs, light standards, off street parking areas, exits and entrances, drainage, walls, etc. C. That in the approval of the plan, the same be substantially in accordance with that submitted for hearing entitled "Aventura Beach Chateau Resort Condominium', prepared by Kobi Karp Architects, Interior Designers dated 7-1-98 consisting of 10 pages, plans entitled "Survey for Dezer Properties Co.", prepared by Zurwelle Whittaker, Inc. dated stamped received 7-1-98 and plans entitled "Aventura Beach Chateau Resort Condominium", prepared by Witkin Design Group dated 8-11-98 consisting of 2 pages. D. That the use be established and maintained in accordance with the approved plans. E. That the applicant submit to the Building Official for its review and approval a landscaping plan which indicates the type and size of plant material prior to the issuance of a building permit and to be installed prior to the issuance of a Certificate of Use and Occupancy. F. That a recordable agreement be submitted to and meet with the approval of the Building Official providing for permanent and safe access for pedestrian and vehicular traffic within the development and particularly for fire, police, health and sanitation and other public service personnel and vehicles, Such agreement shall be executed by the property owners and any and all parties having an interest in the land, such as mortgages, etc. and its improvements. G. That in the event of multiple ownership a homeowners' association be established in accordance with applicable regulations to assure that all common areas and facilities for the use of the residents shall be maintained in continuous and satisfactory manner, and without expense to the general taxpayer of the City of Resolution 98-Z-28/Castelita -2- Sunny Isles Beach. H. That the applicant comply with all conditions and requirements of the Department of Environmental Resources Management (DERM), the Fire Department and the Florida Department of Transportation. I. That the applicant construct an appropriate barrier between the construction and adjoining properties in order to minimize blowing of sand and debris. J. That the applicant will abide by all City and County ordinances relating to the hours of operation for construction commencement and termination. K. That the applicant will use their best effort to minimize vibration and noise during the construction of the project. L. That the provide a proffer a covenant to pro-rata share of undergrounding utilities along the frontage of the property on the public right of way, pro-rata share for Collins Avenue beautification and for dedication of easement for beach access. M. The developer should be required to provide landscape improvements at and within the AlA right of way corridor to increase the effectiveness of the buffer zone between this development and the low density residential district located directly to the west ofthis project. Such improvements should be consistent and compatible with plans prepared by the City's Landscape Architect. N. No parking garage structure which exceeds 1/2 story or 6 feet above the public sidewalk grade should be permitted within 75 feet of the Collins Avenue property line. (It is important to note that, under the existing Dade County zoning code as adopted by the City, parking garages are not counted towards FAR, There impact is, therefore, in excess of the FAR granted for the main structure. Consequently, it is necessary to insure that this increased building bulk is properly distributed and adequately buffered so that it does not create incompatible scale differentials at the right of way which will tend to dwarf pedestrian activities and otherwise render the right of way inhospitable. Additionally, it is necessary for the City to insure that the configuration of the parking garage does not nullify the setback buffers and other development features intended to protect the community as a whole from the impacts of this developments bulk and scale). O. No parking garage structure should be permitted within any proffered easement. P. No portion of the proposed parking garage structure should be visible from the Collins Ave right of way. The entire front setback should be bermed and fully landscaped to insure that the front setback provides an adequate buffer necessary to mitigate the impacts ofthe increased bulk and scale ofthe proposed structure from adj acent pedestrian activities as well as from the low density residential property to Resolution 98-Z-28/Castelita -3- the west. Q. Pedestrian safety improvements including, but not limited to traffic lights, additional crosswalks, safety fencing, signage and the like within the public right of way should be mandated to insure the accessibility of the proffered easement and to insure the safety of the residents who wish to utilize the proffered access easements.( This condition is especially important due to the location of the northern easement at the confluence of two major roadways (i.e. Collins Ave & The William Lehman Causeway). R. No wall, fence or visual obstruction of any kind shall be placed within 25 feet of the Collins Ave. public right of way and no such wall or fence shall in any way obstruct an access easement. No portion of an access easement shall be utilized for vehicular access to the parking garage or to main structure loading docks etc, S. Paving within the front setback shall consist of pavers or other decorative materials approved by the Building Official. Under no circumstances shall asphaltic concrete or plain concrete be utilized as paving in the front setback. (This is intended to mitigate the visual impacts of so large a scale development upon the adjacent land uses). T. The proffered access easements shall be fully landscaped and public facilities including, but not limited to benches, lighting, public restrooms and foot showers shall be provided or constructed by the developer therein according to a plan approved by the Building Official. The developer shall not be required to pay for the use of electricity or water by the public after the completion of initial construction but, he will construct the necessary infrastructure to including water lines, plumbing and electrical service as will be necessary to make the easement fully operational. (By law, the grant of any FAR bonus based upon the grant of access to the ocean or the bay shall consist of improved access easement/s). U. The developer must agree to finance his pro-rata share of long term beach re- nourishment costs which may be required as a consequence of the impacts that this development will have upon the erosion ofthe adjacent public beach, V. No walls or fences shall be constructed within 15 feet of the public beach along the rear property line unless the wall or fence is buffered from the beach by a transition boardwalk at least 15 feet in width running from side property line to side property line along the rear property line. The buffer may be constructed within the public right of way at the developers sole cost provided he obtains permission from all necessary public authorities. Alternately, if permission cannot be obtained at the time of construction, the developer may opt to escrow an appropriate sum equal to the cost of the buffer so that the City can construct the boardwalk buffer at a later date when permission can be obtained. Should permission not be obtainable within a twenty year period of the commencement of construction, the funds would be Resolution 98-Z-28/Castelita -4- returned to the developer along with any accrued interest that the escrowed funds may have earned during that period. This provision is deemed necessary to insure that the bulk and scale ofthis proposed project does not intrude upon the usability of the beach, to improve north-south accessibility for handicapped individuals using the access easement to the beach and, to insure that there is an appropriate transition between the beach and the built environment. W. This project site is located within the Coastal High Hazard Area in a Class I evacuation zone. It is therefore necessary for the developer to mitigate adverse impacts which his project may have upon the feasibility ofthe City's Coastal Hazard Mitigation Strategy. All overhead utilities adjacent to the public right of way should be placed underground in order to insure the public safety during an evacuation procedure and to insure the ability of the City to restore public utility service subsequent to a storm event. 2. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 17th day of December, 1998. CITY OF SUNNY ISLES BEACH, FLORIDA ::I~C1j~ David Samson, Mayor ATTEST: ~(~\~ :J"4~":,' ';.., '..~ "~-.'~~~~", '~'Richard Browrt-Morilla, City Clerk / , .- . , Resolution 98-Z-28/Castelita -5- APPROVED AS TO FORM AND LEGAL SUFFICIENCY: VOTE: 0( \htA.~ ~~ moved and ~l~ ~ seconded approval of the requested zoning odifications, and upon a roll call the vote was ~ -.lL. in favor: Mayor Samson Vice Mayor Turetsky Commissioner Iglesias Commissioner Kauffman Commissioner Morrow Resolution 98-Z-28/Castelita ~es ~es 5;es ~: no no no no no -6- This instrument prepared by (or under the supervision of), and after recording should be returned to: , , , ;" Laurence T. Lewitas, Esq. 89 Fifth Avenue New York, New York 10003 99R306758 1999 JUN H l1:Yt DOCSTPDEE 0.60 SURTX (~~5 HARVEY RUVIN, CLERK DADE COUNTY, FL (Space Reserved for Clerk of Court) BEACH ACCESS EASEMENT AGREEMENT THIS BEACH ACCESS EASEMENT AGREEMENT (the "Agreement") is made and entered into as of the Il~ day of December 1998, by and between CASTELITA INVESTMENT CORP., a Delaware Corporation, M & N PROPERTIES L.L.c., a Florida Limited Liability Company, and DEZER PROPERTIES 291 L.L.c., a New York Limited Liability Company, Michael Dezertzov and Neomi Dezertzov ("Grantor"), having an address of 89 5th Avenue, 11th Floor, 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. RECITALS: WHEREAS, Grantor is the developer of a certain apartment project to be known as ~ I vVt> 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 portions of the Project more particularly described in Exhibit "B" attached hereto and by this reference made a part hereof (the "Easement Parcels"); and ~\~/ WHEREAS, in connection with Grantee's approval of the Project, Grantor has d () grant and create, and Grantee desires to obtain, on the terms and conditions hereinafter se two Easements (as hereinafter defined) over and across the respective Easement Parcels for the purposes hereinafter set forth. 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. Thetoregoing 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 "Easement") in favor of Grantee over and across the Easement Parcels solely for: (a) pedestrian ingress and egress from Collins Avenue to the beach lying easterly of the Easement Parcel and (b) the personnel of the police and fire departments and other governmental authorities having jurisdiction over the Easement Parcels while engaged in the performance of their official duties. Grantee may permit members of the public to also use the Easement Parcels to the same extent as the Grantee as provided in clause (a) above. 3. Design. Construction and Maintenance of Easement Parcels 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 Parcels. The design of and any and all materials to be used for any and all improvements within the Easement Parcels 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 Parcels (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 Parcels 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 Parcels 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 . . ," , ., , " , 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 Easement Parcels, 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 Parcels (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 attorneys' fees and costs reasonably incurred in and about the defense of any suit in discharging the Easement Parcels (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 Parcels and all persons contracting with Grantee for the performance of any services, supply of any materials or provision of any labor for any work done in, on or around the Easement Parcels, and all materialmen, contractors, suppliers, mechanics and laborers are hereby charged with notice that they must look solely to Grantee to secure payment of any bill for work done or materials furnished at the request or instruction of Grantee. 5, Com,pliance With Laws. The beneficiaries of the Easement shall at all times observe in the use of the Easement Parcels all applicable municipal, county, state and federal laws, ordinances, codes, statutes, rules and regulations. 6. Reservation. Grantor hereby reserves the rights of ownership in and to the Easement Parcels which are not inconsistent with the Easement, including, without limitation: " , 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 Parcels which promotes the security of the Easement Parcels or the Property or any persons or property located thereon, to the extent permifted by applicable law, as long as public access to the beach through the Easement Parcels is reasonably maintained; and the right to construct and maintain any signs within the Easement Parcels 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 Parcels. 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 Parcels. 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 Parcels 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 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 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 Assi~s, 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 amo parties with respect to the subject matter hereof and supercedes all prior agreem , ' .. ..~... '~ "' understandings, and arrangements, both oral and written, between the parties with respec ~JM'(. thereto. 15. IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as of the day and year first above written, CASTELITA INVESTMENT CORP" ---f1t-G~' Print Name: ~1~A'2 10Q~I\Jt'A- ::elawVl\L Name: h.\ \ clo.-eJ De--ZbY"" Title: ?e~s llj6",r( M & N PROPERTIES L.L.C., ~Lup , Print Name: r m,-tL W 'i:-{tJ 0It- a Florida Limited iability Company BY:~'\ Name: rnl~~ f)eu:-.r Title: f\1 frlJ. D i R.. cr.c- It>Je_ - DEZER PROPERTIES 291 L.L.C. ~J#' > Print Name: P trzip__ W f 1J4J'C12- By: imi:~panY Name: ' l c...ho.d be.z.-~ Title: f4~. J)(R~L~ " , . " DEZER PROPERTIES 291 L.L.C. A New York Limited Liability Company BY: BY: ~\~\ Michael Dezertzov BY: Yl~~ a.+-- Neomi Dezertzov ~ EXHIBIT "A" LEGAL DESCRIPTION Tract "D" of the AMENDED PLAT OF NORTH BISCAYNE BEACH, according to the Plat thereof, as recorded in Plat Book 44, at Page 42t of the Public Records of Dade County, Florida, measured at right angles to the South line of said Tract; AND that strip of land lying between the Dade County Bulkhead Line and High-water line of the Atlantic Ocean and lying between the Prolongation East of the North and South boundary :==lines of the parcel of land together with all commmFlaw and statutory riparian rights and/or littoral rights appertaining thereto. ,~ . . . EXHIBIT "B" . . A Proposed Easement over the south 25.00 Feet as measured at right angles to the -south line of Tract "D", amended plat of North Biscayne Beach, recorded in Plat Book 44, at Page 42 ofthe Public Records of Miami-Dade County, Florida. Begin (P.O.B.) at the Southwest Corner of the above referenced Tract "D" and run N. 860 58' 06" E., along the SouthJine of Tract "D", a distance of 434.43 feet to the~rosion Control Line of the AtlantIc Ocean, said line recorded in Plat Book 134, at Page 47 of the public records of Miami-Dade County, Florida; thence run N. 3001 '22" E, along said Erosion Control Line, a distance of25.14 feet; thence run S. 86058' 06" W. parallel with and 25.00 feet North of the South line of said Tract of said Tract "D", a distance of 434.41 feet to the Westerly line of Tract "D", also being the Easterly line of State Road A-1-A, A.K,A State Road #140 and Ocean Boulevard; thence run South along the Westerly line of Tract "D", a distance of 25.14 feet to the Point of Beginning (P,O.B.); Easement contains 10,859 square feet.::t or 0.25 acres.::t. AND A Proposed Easement over the North 82.00 feet as measured at right angles to the North Line of Tract "D", amended Plat of North Biscayne Beach, recorded in Plat Book 44, at Page 42 of the public records of Miami-Dade County, Florida. Begin (P.O,B.) at the Northwest corner of said Tract "D", said point being on the Easterly right of way of State Road A-1-A, A.K.K. State Road # 140 and Ocean Boulevard; and run N. 88003' 56" E, along the North line of Tract "D", a distance of 433.33 feet to the intersection of the Erosion Control Line of the Atlantic Ocean, said line recorded in Plat Book 134, Page 47 of the public records of Miami-Dade County, Florida; thence run S. 3'01' 22" W. along the Erosion Control Line 82.46 feet to a point; thence run S. 88"03' 56" W. a distance of 433.24 to the Easterly right of way of said State Road A-l- A, along the Westerly line of Tract "D", a distance of74.70 feet to a point; thence run N. ]054'26" E. along the Westerly line of Tract "D", along the Easterly line of State Road A-1-A, a distance of 7.74 feet to the Point of Beginning (p.0.B.), Easement contains 35,586 square feet.::t or 0,82 acres .::t. 12/10/1998 17:15 305'3453737 KOBI KARP ARCHITECTS PAGE 02 d _WI ~T: ,lOINDER BYMORTGAGEE FOR BACH ACCESS AGBJr,EMEN ~~. The undersigned, Colonial Bank., Mortgagee, under those certain mortagages recorded in Official Records Book 17896 at Page 907 and Official Records Book 17896 at Page 928 of the Public Records of Miami-Dade County. Florida, covering a1Uor a portion of the property described as Exhibit "B" in the foregoing agreement, does herby acknowledge that the terms of this agreement are and shall be binding upon the undersigned and its successors in title, but does not assume nor shall mortgagee have any liability for pe.rfonnance of grantor's obligations thereunder. Mortgagee executed this joinder solely to subject lien of its mortgage to the easement. IN WITNESS WHEREOF, these presents have been executed this I 7 day o~c.e)vJ b..Rr .19 9 r . ~s~y .' ?LONlAL.8~~ORTOAGEE (Irr~Y ,~L /~~ PrintName l1n'1dA/4- 0;.."W1 Print Name: rR/~H7JJf/J ;:J. ])#1//< Print TItle: Vt~.e- /" P /'-tf? 5, AG;j)fh~ - Print Name; /vie ThflfL Bec.f elL. . . . STATE" OF FL I H ORIDA CO ~REB CERTIFY th : . ~~TY OF DADE orIgin '/ a 'I-"s Is , I .d in th' a ?~P" f h IS office on ,I(i ~ · mYh ~d,n . ,A., 19~ UVI" ' Of, Icial Seal it CL': . - of Circuit and C OuntyCourh O.C. STATE OF FLORIDA COUNTY OF DADE ) ) SSe ) The foregoing instrument was acknowledged before me this L2- day of (};~JAA, ' 19~, by (lAA"~/NV) 14. ~as I~ /~ of C6lOrrlal Bank, Mortgagee, on behalf of said Mortgage~ He/She is personally known to me or has produced as identification and did take an oath, Name: My Commission Expires: No,: Commission [NOTARIAL SEAL] PEREZ ttt CCMMJBU)N' CC 578481 EXPlfES: AuguIl20. 2000 IlondId lIlnI NGIIIY NlIc \blIIWIlllllI _ .. , " " 99R306745 1999 JUN 1+ 11:29 DECLARATION OF RESTRICTIVE COVENANTS KNOW ALL MEN BY THESE PRESENTS that the undersigned, being the owner of the following described property, ,lying, being and situated in Dade County, Florida, to wit: ',. I See Exhibit A attached hereto In order to assure the City Commission of Sunny Isles Beach, Florida, that the representation made to them by the Owner in connection with Application Z-97-000126(C) will be abided by, freely, voluntarily and without duress, make the following Declaration of Restrictive Covenants ("Declaration") coveringcand running with the above-described real property: That in order to achieve approval for the proposed condominium project as indicated in the plans entitled A ventura Beach Chateau Condominiums prepared by Kobi Karp Architecture and Interior Design sheets , dated 6/5/98, and plans entitled Aventura Beach Chateau Schematic Landscape Plan, prepared by Andy Witkin, dated said plans filed with the City of Sunny Isles Beach Zoning Department, the undersigned, or their successors in interest, will abide by the following covenants which are voluntarily proffered: 1. Substantial Accordance With Approved Plans. The property shall be developed substantially in accordance with the spirit and intent of the Approved Plans, prepared by Kobi Karp Architecture and Interior Design, noted above, and as otherwise modified by the terms of this Declaration. 2. Impact Fees. The Owners shall pay all applicable impact fees at the time of application for building permit or application for certificate of use and occupancy as per the City's Code, 3. Underground Utilities. Owner agrees to pay a prorata share of the cost to the city of under grounding utility lines in the public rights-of-way on Collins Avenue based on linear feet of frontage of the Owner's property and 250 feet of the property to the north of Owner's properly (Aventura Beach Club) in an amount not to exceed $375 per lineal foot of Owner's frontage and Aventura Beach Club frontage (not to exceed 250 feet) on Collins Avenue. This sum shall be payable prior to issuance of certificates of occupancy by the City. These funds shall be earmarked and segregated by the City to be applied solely for the purpose of converting utility lines on Collins Avenue to underground facilities, The City shall determine, in its sole discretion, the schedule for commencement of this undergrounding activity, not to exceed five (5) years from the date hereof, In the event the City does not proceed with this project within said time-frame, the City shall return the sum volunteered hereunder to the Owner. The Owner reserves the right during construction to work directly with FPL and other utility companies to underground the utilities. ~ CCJtbt~ ~ CUll "0 t ~ , 4, Collins Avenue Beautification. The Owner voluntarily agrees to pay a share of the cost of landscaping by the City as provided by a landscaping plan developed b City's landscape architect in an amount not to exceed $95 per lineal foot of Owner's fronta Collins Avenue. That sum shall be based on the linear feet of frontage of Owner's property. The funds shall be payable prior to the issuance of certificates of occupancy by the City and shall be earmarked and segregated by the City to be applied solely for the purpose of landscape and beautification of Collins Avenue, The City shall determine, in its sole discretion, the schedule for this landscaping activity, but in no event to exceed five (5) years from the date hereof. In the event the City does not proceed with this project within said time-frame, the City shall retufn the sum volunteered hereunder to the Owner. 5. Public Access. The Owner agrees to provide public access to the beach substantially in accordance with the Approved Plans. 6. Landscapin~, Owner shall provide landscape improvements at and within the AlA right of way corridor to increase the effectiveness of the buffer zone between this development and the low density residential district located directly to the west of this project. Such improvements shall be consistent and compatible with plans prepared by the City's Landscape Architect. 7. Gara~e. No parking structure which exceeds 'l2 story or 6 feet above the public sidewalk grade shall be permitted within 75 feet ofthe Collins Avenue property line. No parking garage structure shall be permitted within any proffered easement. No portion of the proposed parking garage structure shall be visible from the Collins Avenue right of way. The entire front setback shall be bermed and fully landscaped to insure that the front setback provides an adequate buffer necessary to mitigate the impacts of the increased bulk and scale of the structure from adjacent pedestrian activities as well as from the low density residential property to the west. 8. Pedestrian Improvements. The Owner agrees to provide pedestrian safety improvements including, but not limited to traffic lights, additional crosswalks, safety fencing, signage and the like within the public right of way to insure the accessibility of the proffered easement and to insure the safety of the residents who wish to utilize the proffered access easements. 9. Ri~ht of Way. No wall, fence or visual obstruction of any kind shall be placed within 25 feet of the Collins Avenue public right of way and no such wall or fence shall in any way obstruct an access easement. No portion of an access easement shall be utilized for vehicular access to the parking garage or to main structure loading docks, etc., except as indicated on the approved plans. 10. Pavers. Paving within the front setback shall consist of pavers or other decorative materials approved by the Building Official. Under no circumstances shall asphaltic concrete or plain concrete be utilized as paving in the front setback. 11. Easements. The proffered access easements shall be fully landscaped public facilities including, but not limited to benches, lighting, public restrooms and foot sh shall be provided or constructed by the Owner therein according to a plan approved ~ (J Building Official. The Owner shall not be required to pay for the use of electricity or water by the public after the completion of initial construction but will construct the necessary infrastructure to include water lines, plumbing and electrical service as will be necessary to make the easement fully operational. 12. Beach Renourishment. Owner agrees to finance his pro-rata share of long term beach renourishment costs as determined by the City which may be required as a consequence of the impacts that this development will have upon the erosion ofthe adjacent public beach. 13. Beach Buffers. The Owner agrees that no walls or fences shall be constructed within 15 feet of the public beach along the rear property line unless the wall or fence is buffered from the beach by a transition boardwalk at least 15 feet in width running from side property line to side property line along the rear property line. The buffer may be constructed within the public right of way at the Owner's cost provided he obtains permission from all necessary public authorities. Alternately, if permission cannot be obtained at the time of construction, the Owner may opt to escrow an appropriate sum equal to the cost of the buffer so that the city can construct the boardwalk buffer at a later date when permission can be obtained. Should permission not be obtainable within a twenty year period of the commencement of construction, the funds would be returned to the Owner along with any accrued interest that the escrowed funds may have earned during that period. This provision is deemed necessary to insure that the bulk and scale of this proposed project does not intrude upon the usability of the beach, to improve north-south accessibility for handicapped individuals using the access easement to the beach and, to insure that there is an appropriate transition between the beach and the built environment. 14. Coastal Zone. This project site is located within the Coastal High Hazard Area in a Class I evacuation zone. The Owner agrees to mitigate adverse impacts which his project may have upon the feasibility of the City's Coastal Hazard Mitigation Strategy. All overhead utilities adjacent to the public right of way should be placed underground in order to insure the public safety during an evacuation procedure and to insure the ability of the City to restore public utility service subsequent to a storm event. 15. Covenant Running with the Land. These restrictions during their lifetime shall be for the benefit of, and limitation upon, all present and future owner(s) of the real property and for the public welfare. This Declaration, on the part of the Owner, shall constitute a covenant running with the land and may be recorded in the public records of Dade County, Florida, and shall remain in full force and effect and be binding upon the undersigned, and their heirs, successors and assigns until such time as the same is modified or released, pursuant to the terms hereof. 16, Imn.. This Declaration shall be binding on all parties and all persons claiming under them for a period of thirty (30) years from the date this Declaration is recorded, afte '", which time it shall be extended automatically for successive period of ten (10) years each, . c~~" an instrument signed by the then Owner(s) of more than fifty (50%) percent of the subj "'b property, or more than fifty (50%) percent of the unit owners or the Condominium Ass ~ has been recorded agreeing to change the Declaration in whole, or in part, provided that the Declaration has first been modified or released by the City of Sunny Isles Beach. 17. Modification. Amendment and Release. This Declaration may be modified, amended or released as to the land herein described, or any portion thereof, by a written instrument executed by the then Owner(s) of more than fifty (50%) percent of the subject real property, or more than fifty (50%) percent of the unit owners or the Condominium Association petitioning for such modification, amendment, or release, provided that the same is also approved by the City Commission after public hearing. The Approved Plans which are the subject of this Declaration may be modified without such petition or approval as long as such changes are determined by the City to be in substantial compliance with the Approved Plans. Should this Declaration of Restrictive Covenants be so modified, amended or released, the Director of the Sunny Isles Beach Zoning Department, or the Executive Officer or the successor of such department, or in the absence of such Director or Executive Officer, by his Assistant in charge of the office in his absence, shall forthwith execute a written instrument effectuating and acknowledging such modification, amendment or release. 18. Enforcement. Enforcement shall be by action against any parties or persons violating or attempting to violate any provision of this Declaration. This Declaration, and the acceptance hereofby the City, is not intended and should not be construed to confer any rights on any third parties other than the Owner and the City. The prevailing party in any action or suit pertaining to or arising out of this Declaration, shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the Court may order to be reasonable for the services of its attorney, at trial and appeal. This enforcement provision shall be in addition to any other remedies available at law, or in equity or both. 19. Authorization to Withhold Permits and Inspections. In the event of noncompliance with any provision herein, in addition to any other remedies, the City is hereby authorized to withhold any further permits or refuse to make inspections until such time as this Declaration is complied with or appropriately modified, amended or released, in the manner and mode set forth herein. 20. Severability. Invalidation of anyone of these covenants, by judgment of a court of competent jurisdiction, shall in no way affect any of the other provisions, which shall remain in full force and effect. 21. Recording. This Declaration shall be filed of record in the public records of Dade Count, Florida, at the cost to the Owner. ~t=~~' - Print Name: ~ ~_ \) t(:(tv'tU2- ~\\ - By: ~j~' Print Name: tt-~~, (lkh{ Name: Michael Dezertzov Title: (V). ~lt.eJ De..~u,v'_ By: \!~ Ch? Name: Neomi Dezertzov Title: t1 Q~ 5)€-~e<'+z.oV The foregoing Agreement was ackn~wledged before me this \ , day of Jlrf'llJlrftVJ 19 ii, by r""(.~o.e\ ~< , as PfC-fillJfbtJ1- of Caste lit a Investment Corp., a Delaware Corporation.:rb pre "}eM-k-e\ N'IS .DR' v ev 's Lu:.. ~JJ 5tz. . Nomry: ~ ~ I A A A....-,.-j..... - . J, Print Name: fVVI/ I fT~-W /VlfliUr- [NOTARIAL SEAL] MATTHEW MARK Notary Public, State of New York No, 01MA5075211 Qualified in New York County Commission Expires Marcil 31.1999 Notary Public, State of New York My Commission Expires: -0/31 I ~ 1 I The foregoing Agreement was acknowledged before me this \ , day of rf;tVv~y, 19j1,by Ml~ ,()e3ev- ,as M/tt-!sf(' DI~fM&N I Properties L.L.C" a Florida Limited Liability Company.:r:O f..-e~+e..J 1J ~~ J) Rive! ~ cotJlt1j:. L I c. e-V\ se.. ' ~ c~lI. ('10 'N C". 'u 'el tf &It MATTHEW MARK Notary Public. State of New York No. OlMA5075211 Quali~jed in New York County CommIssIOn Expires March 31. 1999 Notary: 1, /J J1':) !Uvvv PrinIN~ ~ Notary Public, State of New Y ~rZk ~ My Commission Expires: :? _3 [L'1 f [NOTARIAL SEAL] The foregoing AgreemenFwas acknowledged before me this -1L day of 'J'I/#1I1rP-Lf, 1911,by M\c.-~~ ~u/ ,as 1\\JttJ.l>IIt~ ofDEZER PROPPERTIES 291 L.L.C" a New York Limited Liabil' y Company. IO l?""e~eV\k.,l N,/ 1) R-l \I e ("0;. L \ GeV\ ,,:>e.. , [NOTARIAL SEAL] Notary: MATTHEW MARK Notary Public. State of New York No. OlMA5075211 Quaiified in New York County Commission Expires March 31. 1999 Nol:uy Public, Slale of New Yor~ / My Commission Expires: ;,/:. I 91 The foregoing Agreement was acknowledged before me this ; t day of J'f/fV (/1rfU{ 19 C(1, by tv' \ ~ ~el ~e.A-z.o V ,-as-- I D prec;.eV\+.eJ NYs DR.\\1~'S L\L.efi\t;.e, [NOTARIAL SEAL] ~ Notary: Print Name: ~-W MIrfllL- MATTHEW MARK Notary Public. State of New York No. OlMA5075211 Qualified in New York County Commission Expires March 31. 1999 Nol:uy Public, Slate of New YO' My Commission Expires: ? 31/9 ~ I I The foregoing Agreement was acknowledged before me this ~day of 19f1, by jJ~ De-2-'eA'Z~ \ D foc-eSeN\-te~ N't ~f2..\\)er' S ,a~ L \ C.€V\<;e.. ~v~, ~ MATTHEW MARK Notary Public, State of New York No. 01MA5075211 Qualified in New York County Commission Expires March 31. 1999 Nomry: )M;J;/lvv-- Print Narte: ~ fVl~ Notary Public, State of New York My Commission Expires:~ /?/ /99 rNOl'iffiYlPMMAL 1 Nblary Public, State of New York No. 01MA5075211 Qualified in New York County Commission Expires March 31. 1999 APPROVED AS TO FORM AND CORRECTNESS: ~~ EXHIBIT "A" LEGAL DESCRIPTION Tract "D" of the AMENDED PLAT OF NORTH BISCAYNE BEACH, according to the Plat thereof, as recorded in Plat Book 44, at Page 42, of the Public Records of Dade County, Florida, measured at right angles to the South line of said Tract; AND that strip of land lying between the Dade County Bulkhead Line and High-water line of the Atlantic Ocean and lying between the Prolongation East of the North and South boundary =lines of the parcel of land together with all common=law and statutory riparian rights and/or littoral rights appertaining thereto. 12/16/1998 17:15 3059453737 KOSI KARP ARCHITECTS PAGE 03 The undersigned, Colonial Bank, Mortgagee, under those certain mortgages recorded in Official Records Book 17896 at Page 907 and Official Records Book 17896 at Page 928 of the Public Reconb; of Miami-Dade County, Florida, covering all/or a portion of the property described in the foregoing agreement, does hereby acknowledge that the terms of this agreement are and sbaJl be binding upon the undersigned and its successors in title, but does not assume nor shall mortgagee have any liability for performance of grantor's obligations thereunder. Mortgagee executed this joinder solely to subject lien of its mortgage to the easement. IN WITNESS WHEREOF, these presenm have been executed this / 7 day of '7?e?e'l:!:! hr- .19fr . WITNESSES: /' Cv,y j ~ ~mN~ An7LtwP 0;~~ r~zoEE Print Name: ht:./~d #. ])-#v0 PtintTitle: I//tt::-e- ;Jr~, ~,ij(~~ Print Name: Me D()[u2. Ref:.leR .. , . STATE OF FLORIDA ) ) SSe COUNTY OF DADE ) The foregoing instrument was acknowledged before me this LZ day of IJ~ , 19!ft:., by fZuJvv.d A D~ as //AA..t ~./~....u of Colonial Bank, Mortgagee, on behalf of said Mortgagee. He/She is personally known tome or has produced and did take an oath, as identification Name: My Commission Expires: No.: Commission [NOTARIAL SEAL] "'':;.\n:.:,, BARBARA MUNOZ PEREZ .':"fa;- ""t\ MY COMMISSKlN' OC 678481 ,i. ~~ i EXPIIES: AuguIt 20, 20lllI ~?~ if~- IlandId 1lIu NolIIy NIIIc \RIIlWlftIlI ." ..,' -.'