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HomeMy WebLinkAboutResolution Zoning 99-Z- 39 RESOLUTION NO. 99-Z-39 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA APPROVING THE REQUEST OF TANGIERS BEACH ASSOCIATES FOR NON USE VARIANCES, SUJBECT TO CERTAIN CONDITIONS; PROVIDING AN EFFECTIVE DATE. WHEREAS, Tangiers Beach Associates has applied for the following: 1. Non Use Variance of Lot Coverage requirements to permit proposed development with a lot coverage of 41 % (40% permitted). 2. Non Use Variance of Floor Area Ratio (F.A.R.) to permit a proposed development with a total F.A.R and bonuses of 4.52 (maximum 2.5 F.A.R. and possible F.A.R bonuses for a total F.A.R. of 3.41 permitted)(20% amenities bonus pursuant to Section 33-222(4)(b)(i) is calculated in the total bonus and floor area ratio). 3. Non Use Variance of Setback requirements to permit the proposed tower to setback 25.67 ft (37.24 ft. required) from the interior side south property line and setback 31.33 ft (37.24 ft required) from the interior side north property line. 4. Non Use Variance of Setback requirements to permit the proposed roof deck of parking garage to setback 3.67 ft (20 ft. required) from the interior side (south) property line. 5. Non Use Variance of Zoning Regulations to permit a 20 ft wide view corridor (25ft required). 6. Non Use Variance of Zoning Regulations to permit the minimum floor area for dwelling units varying from 556 sq ft to 613 sq ft (750 sq ft minimum required). 7 Non Use Variance of Parking Regulations to permit 250 parking spaces ( 304 parking spaces required). 8. Non Use Variance of Parking Regulations to permit 70 parking spaces to be tandem (none permitted). Plans are on file and may be examined in the Building, Planning and Zoning Department of the City of Sunny Isles Beach entitled "Bellagio" prepared by Kobi Karp Architects Interior Designers, consisting of 15 sheets, dated 9/22/99 and landscape plans entitled "Bellagio," prepared by Witkin Design Group Dated 10/8/99. SUBJECT PROPERTY: North 116.66 ft of South 216.66 ft of Tract "I", measured at right angles to the south boundary line of said Tract "f' of amended plat of North Biscayne Beach, recorded in PB 44 PG 42. ADDRESS: 18695Collins Ave. Resolution No.99-Z-39 1 12/9/99 Agenda Item 6A - .Tangiers Bellagio Beach Resort. 09/06/01 5:02 PM LMD:ch 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 consideration having been given to the matter; NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, THAT: 1. The Applicant's request for Non Use Variances, Items 1 through 8 are hereby approved subject to the following conditions: a. 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 to, location of structure or structures, types, sizes and location of signs, light standards, off-street parking areas, exits and entrances, drainage, walls, etc. b. That in the approval of the plan, the same be substantially in accordance with that submitted for hearing entitled "Bellagio" prepared by Kobi Karp Architects Interior Designers, consisting of 15 sheets, dated 9/22/99 and landscape plans prepared by Witkin Design Group dated 10/8/99. c. That the use be established and maintained in accordance with the approved plans. d. Item 2 Non Use Variance of Floor Area Ratio (F.A.R.) is amended to permit maximum F.A.R. of3.8 (excluding computation of the garage) and plans must be modified to reflect the changes. Applicant is hereby directed to provide evidence of bonus performance pursuant to Section 33.222(5) of Ordinance no. 99-84 (RU-4A Ordinance). e. The applicant agrees that there shall not be the sale, conveyance, or long- term lease or sublease (for more than six (6) months) of five (5) percent or more cumulatively, of the units to the same buyer, lessor or sublessor. and that the proposed hotel use will further comply with all other requirements ofthe City's RU-4A Ordinance. f. That the applicant provides plans meeting with the approval of the Zoning Director 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. . g. The applicant provide a Declaration of Non-Modifiable Restrictive Covenants that the property will remain an apartment/hotel with rental apartments and all services regularly provided by a hotel, including daily linen services, front desk, valet and all services connected with a hotel operation. Resolution No.99-Z-39 2 12/9/99 Agenda Item 6A - .Tangiers BelIagio Beach Resort. 09/06/01 5:02 PM LMD:ch h. That the applicant provide a Declaration of Restrictive Covenant acceptable to the Zoning Director that the property will be accessible for the use of the hotel/condo 24 hours a day and that all parking of vehicles shall be through a 24-hour valet. 1. That the applicant submit to the Department, for review and approval, a landscaping plan which indicates an easement (such easement to be proffered by the applicant in recordable form) along Collins Avenue front setback to enable the implementation of the streetscape plan currently being designed. The type and size of plant materials shall coordinate with the forthcoming streetscape plan, prior to the issuance of a building permit, and shall be installed prior to the issuance of a Certificate of Use and Occupancy. J. That the applicant obtain a Certificate of Use and Occupancy from the City, upon compliance with all terms and conditions, subject to cancellation upon violation of any of the conditions. 2. This Resolution shall become effective upon adoption. L,,,,_ By: ~ '^-... ,j>'<"!f')K ,.,.. '. ".~: ~'" t.-,~', _:::_ "~i;';~' -\' ~:{9:'~'1?'/< Aitp~~b'As TO FORM AND LEGAL SUFFICIENCY: VOTE: Commissioner Iglesias moved and Commissioner Turetsky seconded approval of the requested zoning modifications, and upon a roll call the vote was 5 -0 in favor: ~es_no lLYes_no ~:-:~ ~es_no Mayor Samson Vice Mayor Morrow Commissioner Iglesias Commissioner Kauffman Commissioner Turetsky Resolution No.99-Z-39 12/9/99 Agenda Item 6A - .Tangiers Bellagio Beach Resort. 09/06/01 5:02 PM LMD:ch 3 STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) I, RICHARD BROWN-MORILLA, Clerk of the City of Sunny Isles Beach, Florida, do hereby certify that the above and foregoing is a true and correct copy of Resolution No. 2000-Z-39 adopted by the City Commission at its meeting held on the 9th day of December, 1999. Issued this /O-ti-;;ay of 4-~ ,2001. Resolution No.99-Z-39 4 12/9/99 Agenda Item 6A - .Tangiers Bellagio Beach Resort. 09/06/01 5:02 PM LMD:ch ....) :!. :. ~ '::.:' ~vL-~ 'E..--~~ Ri hard Brown-Morilla, Ci~}:~' n /. , ,/.; '" . ;.. \. ..,." -.,.'."1".....,'.:..,._..f,~;' ~"'\... ' ,.l ') \~' f". ~.' J.( ~ A . ". Q"-, '. / /'",:,,\ .' ". ...1/) i' .;. '. '\ .'~ This instrument was prepared by: Name: Mark A. Rothenberg, Esq. Address: Bercow & Radell, P.A. 200 S. Biscayne Boulevard, Suite 850 Miami, FL 33131 (Space reserved for Clerk) DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENT WHEREAS, the undersigned Owner holds the fee simple title to the land in Miami- Dade County, Florida, described in Exhibit" A", attached hereto, and hereinafter called the "Property," located at 18695 Collins Avenue, which is supported by the attorney's opinion attached as Exhibit "B", and IN ORDER TO ASSURE the City of Sunny Isles Beach ("City or Grantee") that the representations made by the Owner during consideration of Application No. 299-17 will be abided by the Owner freely, voluntarily and without duress makes the following Declaration of Restrictions ("this Declaration") covering and running with the Property: (1) Development in Accordance With Plans. Owner agrees that the Property shall be developed substantially in accordance with the plans previously submitted, prepared by Kobi Karp Architects Interior Designers entitled, "Bellagio", dated the 22nd day of September, 1999, consisting of 15 sheets, and landscape plans entitled "Bellagio" prepared by Witkin Design Group, dated the 8th day of October 1999, said plans being on file with the City of Sunny Isles Beach, and by reference made a part of this Declaration. Notwithstanding the foregoing, the maximum Floor Area Ratio for development in accordance with the foregoing plans shall be 3.8 (excluding computation of the garage). (2) Hotel/Condominum Use. Owner agrees that the hotel/condominium use will be established and maintained in accordance with the approved plans referenced ill paragraph 1 and that the Property will be accessible on a twenty-four (24) hour a day basis as a hotelj condominium. Owner further agrees that services typically provided by a hotel including but not limited to daily linen service, front desk, valet, and similar services, typically provided in a hotelj condominium shall be provided in accordance with the hotel/ condominium use established on the Property. (3) Accessibility /Parking. Owner agrees that the property will be accessible for the use of the hotel/condominium 24 hours a day. Owner further agrees that all parking of vehicles shall be through a 24-hour valet. This provision shall be inapplicable to service/delivery vehicles or emergency/utility vehicles. (4) RU-4A Ordinance. Owner agrees that the hotel/condominium use of the Property shall comply with all of the requirements of the City's RU-4A Ordinance. (5) Pedestrian/Vehicular Access. Owner agrees to provide permanent and safe access for pedestrian and vehicular traffic within the Property. Without limiting the foregoing, access shall be provided at all times for fire, police, health, sanitation and other public service personnel and vehicles employed and utilized by the City. (6) Grant of Easement. The undersigned owner ("Grantor") does hereby grant and convey to the City of Sunny Isles ("Grantee") the following non-exclusive easements: (i) pedestrian ingress to and egress from the public beach, specifically described on the attached Exhibit "C" (the "Access Easement") and (ii) a 10' landscape easement (the "Landscape Easement") running along the western property line (the "Landscape Easement"). The Landscape Easement shall permit such reasonable and necessary penetrations for driveways and pedestrian access as approved by the City Zoning and Code Administrator, over, across, and upon the Access Easement and the Landscape Easement (collectively hereinafter referred to as the "Easement Property"). (7) Promptly upon substantial completion of the construction of improvements upon the Property, Grantor, at Grantor's expense, will plant and thereafter maintain landscaping on the Easement Property as may be reasonably be required by Grantee pursuant to the applicable requirements of the streetscape master plan of the City of Sunny Isles Beach or as otherwise approved by Grantee. (8) Grantor shall be solely responsible for the maintenance of the Easement Property, at Grantor's expense. (9) These grants of easement shall not become effective until the City issues a final certificate of use and occupancy for the development described in Section 1 above. (10) Restoration of the Easement Property. After any installation by Grantee of permitted facilities within the Easement Property or any subsequent repairs or maintenance thereof, the Grantee, its employees, representatives or contractors (collectively, "Grantee's Party ") shall remove all equipment and other property placed on the Easement Property by or for the Grantee, fill and level all ditches, ruts, and depressions caused by Grantee's Party, and remove all debris resulting therefrom. The Grantee shall restore the surface of the Easement Property ,as applicable, as near to its original conditions as may be possible, all within a reasonable time after the installation, repair and/ or maintenance of such facilities. (11) Reservations by Grantor. Grantor hereby reserves the right to use the Easement Property for any purpose that shall not interfere with Grantee's use the Easement Property as set forth and created herein, including, without limitation, the right to grant further easements on, over, under, or across the Easement Property. Grantor shall not construct or permit to be constructed any structures or obstructions on or over the Easement Property that would interfere with the Grantee's use under this Easement. (12) Indemnification. For $10.00 and other separate consideration, receipt of which is hereby acknowledged, Grantee hereby indemnifies and agrees to defend and fully indemnify and hold harmless Grantor from and against any and all liabilities, damages, claims, demands, costs, and expenses (including reasonable attorney's fees and court costs at all trial and appellate levels) arising from or in connection with the use of the Easement Property by the Grantee and by all citizens, residents, visitors, and guests of the Grantee. (13) City Inspection. As further part of this Declaration, it is hereby understood and agreed that any official inspector of the City of Sunny Isles Beach, or its agents duly authorized, may have the privilege at any time during normal working hours of entering and inspecting the use of the premises to determine whether or not the requirements of the building and zoning regulations and the conditions herein agreed to are being complied with. (14) Covenant Running with the Land. This Declaration shall constitute a covenant running with the land and shall be recorded, at the Owner's expense, in the public records of Miami-Dade County, Florida and shall remain in full force and effect and be binding upon the undersigned Owner, and their successors and assigns until such time as the same is modified or released, as provided herein. (15) Modification, Amendment, Release. The easements granted in this Declaration shall be perpetual in duration, and shall not be changed, altered or amended except by instrument in writing executed by the Owner and the City or their respective successors and assigns, provided that the same is also approved by the City Commission after public hearing. Should this Declaration be so modified, amended, or released, the Director of City Department of Planning and Code Administration, or the executive officer of 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. (16) Enforcement. Enforcement shall be by action against any parties or person violating, or attempting to violate, any covenants. 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 adjudge to be reasonable for the services of its attorney. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. (17) Presumption of Compliance. Where construction has occurred on the Property or any portion thereof, pursuant to a lawful permit issued by the City, and inspections made and approval of occupancy given the City, then such construction, inspection and approval shall create a rebuttable presumption that the buildings or structures thus constructed comply with the intent and spirit of this Declaration. (18) Authorization for City to Withold Permits and Inspections. In the event the terms of this Declaration are not being complied with, in addition to any other remedies available, the City is hereby authorized to withhold any further permits, and refuse to make any inspections or grant any approvals, until such time as this declaration is complied with. (19) Election of Remedies. All rights, remedies and privileges granted herein shall be deemed to be cumulative and the exercise of anyone or more shall neither be deemed to constitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other additional rights, remedies, or privileges. (20) Severability. Invalidation of anyone of these covenants, by judgment of the court, shall not 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 Miami-Dade County, Florida at the Owner's cost following the adoption by the City Commission of a resolution approving the application. SIGNATURE PAGES TO FOLLOW Witnesses: TANGIERS BEACH ASSOCIATES: a Florida General Partnership. Signature By: Signature Print Name Print Name Signature Print Title Print Name STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE I HEREBY CERTIFY, that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared on behalf of Tangiers Beach Associates, and that he/she acknowledged executing the foregoing document, freely and voluntarily. Said person is _ personally known to me, or_ has produced (specify type of identification, i.e., driver's license and number, state of issue, etc.) and who _ did, or_ did not, take an oath. WITNESS my hand and official seal in the County and State last aforesaid this _ day of ,2000. Print of Stamp Name: Notary Public, State of Florida at Large Commission No.: My Commission Expires: EXHIBIT A Legal Description The North 116.66 ft. of South 216.66 ft. of Tract "I", measured at right angles to the south boundary line of said Tract "I" of amended plat of North Biscayne Beach, as recorded in Plat Book 44, Page 42. EXHIBIT C Pedestrian Access Easement The North 20' of the North 116.66 ft. of South 216.66 ft. of Tract "I", measured at right angles to the south boundary line of said Tract "I" of amended plat of North Biscayne Beach, as recorded in Plat Book 44, Page 42 as shown on the plans referenced herein. "... OPINION OF TITLE EXHIBIT 1}3 TO: City of Sunny Isles Beach With the understanding that this Opinion of Title is furnished to the City of Sunny Isles Beach (the "City"), as inducement for acceptance of a Covenant covering the real property, hereinafter described, it is hereby certified that I have examined Fidelity National Title Insurance Company's Title Policy No. 5332-84424, and Endorsement No. 1 thereto, and Attorney's Title Insurance Fund Title Computer Printouts covering the period from the beginning through July 15, 2001, at 11:00 p.m. (the "Effective Date"), of the following described real property: All of TANGIERS RESORT, A MOTEL CONDOMINIUM, according to the Declaration of Condominium thereof, as recorded in Official Records Book 13036, at Page 3240, ofthe Public Records of Miami-Dade County, Florida, and all exhibits and amendments thereto. a/k/ a Condominium Unit Nos. 102 through 112, 114 through 141, 200 through 212, 214 through 237, 300, 400 and 500, of TANGIERS RESORT, A MOTEL CONDOMINIUM, according to the Declaration of Condominium thereof, as recorded in Official Records Book 13036, at Page 3240, of the Public Records of Miami-Dade County, Florida, and all exhibits and amendments thereto. I am ofthe opinion that on the last mentioned date, the fee simple title to the above-described real property was vested in: TANGIERS BEACH ASSOCIATES, a Florida general partnership Subject to the following encumbrances, liens and other exceptions (If "none" please indicate): 1. RECORDED MORTGAGES: Mortgage Deed executed by Tangiers Beach Associates, in favor of Ocean Bank, dated June 10, 1999, recorded June 11, 1999, in Official Records Book 18647, at Page 4065, as modified by Modification and Ratification of Mortgage and Note Agreement and Spreader Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated August 3, 1999, recorded August 6, 1999, in Official Records Book 18727, at Page 2421, Mortgage Modification Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated January 19,2000, recorded January 27,2000 in Official Records Book 18962, Page 1001; and Mortgage Modification Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated July 2, 2001, recorded July 10, 2001 in Official Records Book 19769, Page 2678. 2. RECORDED CONSTRUCTION LIENS. CONTRACT LIENS AND JUDGMENTS: NONE 1 3. GENERAL EXCEPTIONS: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey and inspection of the premises. 4. Any lien, or right to a lien, for service, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Taxes or special assessments which are not shown as existing liens by the public records. 6. Any claim that any portion of said lands are sovereign lands of the State of Florida, including submerged, filled or artificially exposed lands and lands accreted to such lands. 7. Taxes and Assessments for the year 2001 and subsequent years, which are not yet due and payable. 4. SPECIAL EXCEPTIONS: 8. All of the terms, conditions, provisions, easements and covenants contained within the Declaration of Condominium of Tangiers Resort, a Motel Condominium, together with all exhibits and amendments attached thereto, filed October 1, 1986, in Official Records Book 13036, at Page 3240. 9. Declaration of Use executed by Tangiers Associates, filed November 13, 1986 in Official Records Book 13083, at Page 423. 10. Riparian or littoral rights are neither guaranteed nor insured. 11. Rights, if any, of the public, acquired by previous adverse use or by virtue of local custom with respect to the special nature of seaside beaches, to use any part of the land seaward of the natural line of vegetation or of the extreme high water line, as a public beach or recreation area. 12. Survey James D. Reeves, President of Zurwelle Whittaker, Inc. RLS No. P.S.M. 2194, dated February 15, 1999, Job No. 81529-99 discloses: a. Wood Power pole in the Northwest comer of the premises; b. 2' x 1335' wide CBS wall along north line ofthe premises; c. 5.5' chain link fence along north line of the premises; d. Double 4' CBS wall and planter along north line (near Northeast comer) of the premises; NOTE: this wall encroaches on North adjoining property by 0.38'; e. Atlantic Ocean and Erosion Control Line along East line of the premises; f 0.36' Brick Planter along South line of the premises (Near Southeast comer); 2 g. 4.5' X 2' CBS wall along South line of the premises; h. 8.5' chain line fence along South line of the premises; NOTE: this fence contains a 0.4' encroachment on the South adjoining property; 1. Planter area along South line of the premises with the bottom wall encroaching by 0.07' 0 the South adjoining property; J. 7.2' concrete walk outside and along West line of the premises. 6. Mortgage Deed executed by Tangiers Beach Associates, in favor of Ocean Bank, dated June 10, 1999, recorded June 11, 1999, in Official Records Book 18647, at Page 4065, as modified by Modification and Ratification of Mortgage and Note Agreement and Spreader Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated August 3, 1999, recorded August 6, 1999, in Official Records Book 18727, at Page 2421, and Mortgage Modification Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated January 19, 2000, recorded January 27,2000 in Official Records Book 18962, Page 1001. 7. Assignment of Leases, Rents and Profits between Tangiers Beach Associates and Ocean Bank, dated June 10, 1999, recorded June 11, 1999 in Official Records Book 18647, Page 4076, as modified by Modification and Ratification of Mortgage and Note Agreement and Spreader Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated August 3, 1999, recorded August 6, 1999, in Official Records Book 18727, at Page 2421, and Mortgage Modification Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated January 19, 2000, recorded January 27,2000 in Official Records Book 18962, Page 1001. 8. UCC-l Financing Statement executed by Tangiers Beach Associates, recorded Jooe 11, 1999 in Official Records Book 18647, Page 4080, as modified by Modification and Ratification of Mortgage and Note Agreement and Spreader Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated August 3, 1999, recorded August 6, 1999, in Official Records Book 18727, at Page 2421, and Mortgage Modification Agreement executed by Tangiers Beach Associates in favor of Ocean Bank, dated January 19,2000, recorded January 27, 2000 in Official Records Book 18962, Page 1001. 9. UCC-l Financing Statement executed by Tangiers Beach Associates, filed'Iune 17, 1999 under Florida Secretary of State's File No. 990000137256. 10. Collateral Assignment of Tax Certificates executed by A.F.R.C. Realty Corp. in favor of Colonial Bank, dated September 18, 2000, recorded October 2, 2000 in Official Records Book 19305, Page 4253. ALL OF THE RECORDING REFERENCES ARE TO THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA UNLESS OTHERWISE NOTED. 3 .... I I I HEREBY CERTIFY that I have reviewed all the aforementioned encumbrances and exceptions. Therefore, it is my opinion that the following party must join in the Covenant in order to make the agreement a valid and binding covenant on the lands described herein. Special Exception Number Name Interest Ocean Bank Mortgagee 6 The following is a description of the aforementioned abstract and its continuations: Company Certifying Period Covered Fidelity National Title Insurance Company Owner's Policy of Title Insurance No. 5332-84424 Beginning through August 9, 1999 @ 12:01 a.m. Endorsement NO.1 to Fidelity National Title Insurance Company Owner's Policy No. 5332-84424 August 9, 1999 through January 27,2000 at 12:37 p.rn. Attorneys' Title Insurance Company Computer Updates January 27,2000 @ 12:37 p.m. through July 15,2001 @ 11:00 p.m. I HEREBY CERTIFY that the legal description contained in this Opinion of Title coincides with, and is the same as, the legal description in the proffered, recordable covenant. This opinion is intended solely for the benefit of the City of Sunny Isles Beach (the "City") and can only be relied on by the City for the purposes set forth herein and by no other person and for any other purpose. This Opinion is given as of the Effective Date and we assume no obligation as to any facts, circumstances or instruments that may hereafter be placed in the public records or come to our attention or any changes in law that may hereafter occur. 4 f . I, the undersigned, further certify that I am an attorney-at-law duly admitted to practice in the State of Florida and a member in good standing of the Florida Bar. Respectfully submitted this 31 st day of July, 2001. LFE RENNERT LER, P.A. 100 Southeast 2nd Street, Suite 3500 Miami, Florida 33131 G:\ShamiraIR IRado\ T angiers\OpinionoITitleREVSunnylsles,doc 5