HomeMy WebLinkAboutExhibit B CovenantDocument prepared by:
Office of City Attorney
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130-1910
Return Recorded Copy to:
City of Miami
Planning Department, Attn: Planning Director
444 S.W. 2nd Avenue, 3rd Floor
Miami, FL 33130-1910
Folio No(s): 01-3207-020-0310
(Space Above for Recorder's Use Only)
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS (the "Declaration"), made this __ day
of , 2021, by PELICAN HARBOR SEABIRD STATION, INC., a Florida not -for -
profit corporation having offices at 1279 NE 79th Street Causeway, Miami, Florida 33138 (the "Owner"), in
favor of the City of Miami, Florida, a municipality of the State of Florida (the "C�").
WHEREAS, Owner holds fee -simple title to certain property in the City of Miami, Florida, located
at 399 NE 82nd Terrace (Folio No. 01-3207-020-0310), legally described and depicted in Exhibit "A" attached
hereto and a part hereof (the "Proper "); and
WHEREAS, Owner submitted an application for a Future Land Use Map ("FLUM") amendment
and rezoning of a portion of the Property from its current FLUM and zoning designations of Medium
Density, Multi -Family Residential and Sub -Urban Transect Zone Open M-O) to Medium -Density Restricted
Commercial and General Urban Zone Limited (T4-L) (the "Applications''); and
WHEREAS, Owner as an inducement to the City's approval of the Applications voluntary proffers
this Declaration and the limitations on the future development of the Property outlined herein; and
NOW, THEREFORE, the Owner, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, voluntarily covenants and agrees that the Property shall be subject to the
following restrictions that are intended and shall be deemed to be a covenant running with the land and
binding upon the Owner of the Property, and its heirs, grantees, successors, and assigns as follows:
1. Recitals. The recitals and findings set forth in the preamble of this Declaration are hereby
adopted by reference thereto and incorporated herein as if fully set forth in this Section.
2. Use Restriction(sl: City and Owner both acknowledge and agree that the Owner's intended
use of the Property is properly characterized as a "Civic" and "Community Facility" given its community -
oriented objectives performed by the Owner, which is a not -for -profit organization, for the benefit of the
general public and the non-commercial nature of the facility. A copy of the City's confirmation of the
nature of the proposed Use is enclosed as Exhibit "B" which exhibit is attached hereto and made a part
hereof.
A. Community Facility Use. Notwithstanding the provisions of Article 4, Table 3 of
Miami 21, as the same may be amended from time -to -time, Owner hereby agrees to limit its use of the
Property during the term of this Declaration as follows:
i. Limitation on Uses/Activities. Owner shall solicit a Warrant from the City for the
operation of a Community Facility on the Property. Said Community Facility shall serve as the corporate
headquarters for the Owner and consist of or house the following: (i) office space for the Owner's staff; (ii)
a wildlife hospital for the provision of medical and surgical care for sick, injured or orphaned native
animals; (iii) indoor boarding facilities for sick, injured or orphaned native birds and wildlife; (iv) outdoor,
screened pens for the boarding of recovering or permanently disabled native birds and wildlife; and (v)
indoor and outdoor general purpose spaces for the hosting of small gatherings or educational
programming consistent with the charitable mission of the Owner.
ii. Limitation on Services Rendered. Owner further covenants and agrees to provide
medical or surgical care for injured or sick native birds and wildlife exclusively for charitable purposes and
the preservation animals which are native to the local community. Owner shall neither accept nor render
services to domesticated pets, domesticated farm animals or exotic birds for treatment or care at the facility
on its Property.
iii. Limitation on Fee for Services. Owner further covenants and agrees that it shall
neither solicit nor accept any fee for service or such other financial consideration from members of the
general public (i.e. a consumers) in exchange for its provision of medical, surgical or boarding services to
native birds and wildlife on the Property. Nothing herein, however, shall be construed to preclude the
Owner from soliciting charitable contributions or grants from individual donors, foundations,
governmental agencies, or the like for the provision of medical or surgical care, including boarding, for sick
or injured, native birds and wildlife in furtherance of its charitable mission.
B. Maximum Capacity. Owner and City acknowledge that the demand for Owner's
services fluctuates from year-to-year. Notwithstanding the foregoing, Owner hereby covenants and agrees
to limit its capacity for the provision of boarding services to those areas identified within the proposed
building and within open air, screened pens which shall be limited to not more than ten percent (10%) of
the Property's Lot Area.
C. Public Access. Members of the general public shall be permitted access to the portions
of the Property located north of N.E. 8411, Street via a path accessible from the Property's Frontage at the
intersection of N.E. 411, Avenue & 841h Street. To the extent Owner procures access rights to all or a portion
of the waterfront immediately abutting the Property to the North, Owner shall extend access to members
of the general public under the same terms and conditions. Members of the general public shall be
authorized to access the Property during the Declarant's normal operating hours (presently Monday
through Sunday from 9 A.M. to 5 P.M.) or on such other dates or during such other hours as the Owner
may establish in its sole discretion.
D. Conditions. The above -listed limitations on the future use of the Property shall be
reflected as conditions to the Warrant solicited by the Owner for the desired Community Facility Use.
3. Effective Date. The provisions of this Declaration shall become effective upon their recordation
in the Public Records of Miami -Dade County, Florida. These restrictions shall be for the benefit of, and a
limitation upon, all present and future owners of the Property and for the public welfare.
4. Term of Declaration. This Declaration shall remain in full force and effect for a period of thirty
(30) years from the date this instrument is recorded in the Public Records, after which time they shall be
automatically extended for successive periods of ten (10) years, unless modified, amended or released prior
to the expiration thereof and in accordance with the terms of Section 5.
5. Inspection & Enforcement. It is understood and agreed that any official inspector of the City
of Miami may have the right at any time during normal working hours of the City of Miami's inspector to
enter upon the Property for the purpose of investigating the use of the Property, and for determining
whether the conditions of this Declaration and the requirements of the City's building and zoning
regulations are being complied with. An action to enforce the terms and conditions of this Declaration may
be brought by the City and may be by action at law or in equity against any party or person violating or
attempting to violate any covenants of this Declaration or provisions of the building and zoning
regulations, either to restrain violations or to recover damages. This enforcement shall be in addition to
any other remedies available under the law.
6. Cumulative. All rights, remedies, and privileges gained herein shall be deemed to be
cumulative and the exercise of any one 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 as may be available to it.
7. Amendment, Modification, Release. This instrument may be amended, modified or released
as to any portion or all of the Property only after the occurrence of a public hearing before, and approval
from, the City Commission. Any amendment, modification, or release shall be executed by the Planning
Director and the Zoning Administrator, or their successor or designee, and be in a form acceptable to the
City Attorney. In the event the majority of the properties abutting the Property are redesignated to a
designation of General Urban Transect Zone Limited (T4-L) or greater during the term of this Declaration,
this Declaration shall be of no further force and effect and shall no longer bind the Owner, or their heirs or
MSiLiL X IAS
8. Severability. Invalidation of any one of these covenants by judgment of a Court shall not affect
any other provisions of the Declaration, which shall remain in full force and effect.
9. Recording. This Declaration shall be filed of record among the Public Records of Miami -Dade
County, Florida, at the cost of the Owner, within thirty (30) days of the acceptance by the City. The Owner
shall furnish a copy of the recorded Declaration to the City Department of Hearing Boards within thirty
(30) days of recordation.
10. Counterparts/Electronic Signature. This Declaration may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall
together constitute but one and the same Declaration. The parties shall be entitled to sign and transmit an
electronic signature of this Declaration (whether by facsimile, PDF or other e-mail transmissions), which
signature shall be binding upon the party whose name is contained therein. Any party providing an
electronic signature agrees to promptly execute and deliver to the other parties an original signed
Declaration upon request.
11. Vested Rights. Nothing in this Declaration shall be construed to create any vested rights
whatsoever to the Declarant, its successors, or assigns.
[SIGNATURE PAGES TO FOLLOW]
Signed, witnessed, executed, and acknowledged this _ day of , 2020.
PELICAN HARBOR SEABIRD STATION, INC., a
Florida Not -for -Profit Corporation
0
Witness:
Print Name:
Title:
Print Name:
Print Name:
STATE OF FLORIDA }
} SS
COUNTY OF MIAMI-DADE }
The foregoing instrument was acknowledged before me this day of
2020, by , as of PELICAN HARBOR SEABIRD STATION, INC., a Florida not -for -
profit corporation. Personally known or Produced Identification
Type of Identification Produced
Print or Stamp Name:
Notary Public, State of
My Commission Expires:
APPROVED AS TO CONTENTS:
Cesar Garcia -Pons, AICP, LEED AP
Planning Director
Daniel Goldberg, Esq.
Zoning Administrator
APPROVED AS TO LEGAL
FORM AND CORRECTNESS:
Victoria Mendez, Esq.
City Attorney
MORTGAGEE JOINDER
GROVE BANK & TRUST, whose mailing address is 2701 S. Bayshore Drive, Miami, FL 33133
(hereinafter, "Lender'), which is the owner and holder of the following described mortgage documents
(the "Lender Documents'):
That certain Mortgage, executed by PELICAN HARBOR SEABIRD STATION, INC., a
Florida not -for -profit corporation, in favor of Lender, recorded on July 29, 2020, in the
Official Records Book 32027, at Page 264, in the Public Records of Miami -Dade County,
Florida,
Hereby agrees to subordinate the lien on the Lender Documents to the terms of the Declaration.
WITNESSES:
Name:
Printed Name:
Name:
Printed Name:
By:
Name:
LENDER:
GROVE BANK & TRUST, a Florida For -
Profit Corporation
The foregoing instrument was acknowledged before me this day , 20J by
, as , of Grove Bank & Trust, a Florida for -profit corporation, who
is personally known to me, or has produced a as identification.
Printed Name:
Notary Public
My Commission Expires:
EXHIBIT "A"
LEGAL DESCRIPTION
A portion of Lot 19 of "TUTTLES SUBDIVISION", according to the plat thereof as recorded
in Plat Book B, at Page 3, of the Public Records of Miami -Dade County, Florida, lying South
of South line of the Little River and West of the Westerly Right -of -Way line of the Florida
East Coast Railroad Right -of -Way, being more particularly described as follows:
Commence at the Southwest corner of said Lot 19; thence run East, along the South Line
of said Lot 19, for a distance of 162.00 feet to the Point of Beginning of parcel of land
hereinafter to be described; thence continue East, along said South line of Lot 19, for a
distance of 60.00 feet to the point of intersection with the Westerly Right -of -Way line of the
Florida East Coast Railroad Right -of -Way, said point being a point of curve bearing S. 84'
06' 06" E. to the center of said curve, having for its elements a Radius of 1960.08 feet and a
central angle of 19' 13' 34"; Thence run Northeasterly along the arc of said circular curve,
concave to the Southeast, (also being said Westerly right-of-way line), for an arc distance
of 657.73 feet to a point of tangency of said circular curve (said point bears N. 64' 52' 32"
W. from the center of said curve); Thence run N. 25' 07' 28" E. for a distance of 14 feet,
more or less, to the Southerly water's edge of the Little River; Thence meandering
Northwesterly and Westerly, along said Southerly water's edge, for a distance of 338 feet
more or less to a point of intersection with the Easterly line of Lot 13 of "FLORA DEL RIO",
according to the plat thereof as record in Plat Book 42, at Page 38, of the Public Records of
Miami -Dade County, Florida; Thence run S. 00' 08' 06" W., along said Easterly line of Lot
13 and its Southerly extension, for a distance of 172 feet more or less to the Southeast corner
of the Right -of -Way of N.E. 8411, Street, as shown on the recorded plat of "FLORA DEL
RIO", according to the plat thereof as recorded in Plat Book 42, at Page 38, of the Public
Records of Miami -Dade County, Florida; Thence run West, along the Southerly line of said
right-of-way of N.E. 8411, Street, for a distance of 20.00 feet to a point of intersection with
the Easterly Right -of -Way line of N.E. 411, Avenue, as shown on said recorded plat of
"FLORA DEL RIO"; Thence run S. 00' 08' 06" W. along said Easterly Right -of -Way line of
N.E. 41h Avenue, for a distance of 692.50 feet to the Point of Beginning.
Said described parcel of land lying and being situated in Miami -Dade County, Florida.
Parcel Identification Number: 01-3207-020-0310
LESS
A parcel of land in Lot 19, of the subdivision of the Northwest one -quarter (NW 1/4) of
Section 7, Township 53 South, Range 42 East, according to the plat thereof as recorded in
Plat Book B, Page 3, Miami -Dade County, Florida, Public Records, (commonly known s
Tuttle Subdivision); said parcel of land being more specifically described as follows:
Commencing at the Northeast (NE) corner of Lot 13, Flora -del -Rio, a subdivision in the
Northwest one -quarter (NW 1/4) of Section 7, Township 53 South, Range 42 East, according
to the Plat thereof as recorded in Plat Book 42, Page 38, Miami -Dade County, Florida,
public records; said point being the point of beginning, bear South 2°20'23" East, along the
east line of said Lot 13, a distance of 178 feet, more or less; thence, North 87°31'31" East, a
distance of 20 feet; thence, North 2°20'23" West, a distance of 141.56 feet; thence, North
89°43'32"East, a distance of 45.98 feet; thence, South 25°39'25" East, a distance of 179.79
feet; thence, South 67°42'29" East, a distance of 83.3 feet, more or less, to a point of
intersection with the northwesterly right-of-way line of the Florida East Coast Railway
Company; thence, Northeasterly along the said Railway right-of-way line to a point of
intersection with the south bank of the Little River Canal; thence, Northwesterly along that
said south canal bank to the point of beginning.
TITLE COMMITMENT PER OLD REPUBLIC NATIONAL TITLE INSURANCE
COMPANY
COMMITMENT NUMBER: 20007284,
COMMITMENT REVISED DATE: BANDARY 23. 2020 to 7.45 A.M.
SCHEDULE B PART 11
EXCEPTIONS
ITEM NO. 1
DEFECTS, LIENS, ENCUMBRANCES, ADVERSE CLAIMS OR OTHER MATTERS, IF
ANY CREATED, FIRST APPEARING IN THE PUBLIC RECORDS OR ATTACHING
SUBSEQUENT TO THE EFFECTIVE DATE HEREOF BUT PRIOR TO THE DATE THE
PROPOSED INSURED ACQUIRES FOR VALUE OF RECORDTHE ESTATE OR
INTEREST OR MORTGAGE THEREON COVERED BYTHIS COMMITMENT. (NOTA
SURVEYOR MATTER)
ITEM NO. 2
RIGHTS OR CLAIMS OF PARTIES IN POSSESSION.(NOT A SURVEYOR MATTER)
ITEM NO. 3
GO N SIR UCTIO N, MECHANICS, GO N TRAGIC R S' OR MATE RIALM E N'S LIEN
CLAIM S, I F ANY, WHERE NO NOTICE THEREOF APPEARS 0 F RECORD. (NOT A
SURVEYOR MATTER)
ITEM NO. 4
GENERAL OR SPECIALTAXES AND ASSESSMENTS REQUIREDTO BE PAID IN THE
YEAR 2020 AN D SUBSEQUENT YEARS.. (NOT A SURVEYOR MATTER)
ITEM NO. 5
ANY LIEN PROVIDED BY COUNTY ORDINANCE OR BY CH. 159, F.S., IN FAVOR OF
ANY CITY, TOW N, VILLAGE 0 R PORT AUTHORITY, FOR U N PAI D SERVICE
CHARGES FOR SERVICES BY ANY WATER SYSTEMS, SEWER SYSTEMS OR GAS
SYSTEMS SERVING THE LAND DESCRIBED HEREIN; AND ANY LIEN FOR WASTE
FEES IN FAVOR OFANY COUNTY OR MUNICIPALITY. (NOTA SURVEYOR
MATTER)
ITEM NO. 6
NTENTIO NALLY DELETED
ITEM NO.
NTENTIO NALLY DELETED.
ITEM NO. 8
DECLARATION OF RESTRICTIVE COVENANTS RECOR RED IN OFFICIAL RE GO R DS
BOOK 25862, PAGE 3302, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY,
FLO RI DA, WHICH GO NTAI NS PROVISIONS CREATING EASEMENTS. (NOT
PLOTTABLE)
ITEM NO. 9
NTENTIO NALLY DELETED
ITEM NO. 10
RIPARIAN AND LITTORAL RIGHTSARE NOT INSURED. (AS SHOWN)
ITEM NO. 11
ANY PORTION OFTHE LAND LYING WATERWARD OF THE MEAN HIGH WATER
LINE OF LITTLE RIVER, AND LANDS ACCRETED THERETO.(AS SHOWN)
ITEM NO. 12
RIGHTS OF LESSEES UNDER UNRECORDED LEASES(NOTA SURVEYOR MATTER)
CONTACT PHONE NUMBERS:
LAND DEVELOPMENT N: (305)4L 2z
OTYOFMMMhSANMNG&DONINGfWS)4L BSS
FOLIO NUMBER:
STATEMENT OF ENCROA CHMENTS:
THERE ARE NOABOVE GROUND ENCHRDACHMENTS
NO EARTH MOVING WORK, BUILDING
CONSTRUCTION OR BUILDING ADDITIONS HAVE
BESUN TICED.
THERE IS NO PHYSICAL EVIDENCE THAT THE SITE
WAS EVER USED AS A SOLID WASTE DUMP, SUMP
OR SANITARY LANDFILL.
LAND AREA:
102, ASF S0,11 I— ACRES)
reoolerremovmn112.5' o..dm 4
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UTILITY COMPANIES:
Honda Power& HILL 305-377 6108
Water & Sewer-NIFTA RINCON 305372 6639
ZONED:
T3-0- RESIDENTIAL SINGLE FAMILYAND
TWO FAMIL YRESIDENCE (DUPLEX)
SITE
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DIGITALLY SIGNED PRINTED COPIES
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Tree Table Information Provided by:
Pelican Harbor Seabird Station
Alison Walker (ISA FL-9317A)
August 9, 2020
H COlManamaCE
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EXHIBIT "B"
ZONING USE INTERPRETATION
From:
Goldberg, Daniel
To:
Javier Fernandez
Cc:
Garcia -Pons, Cesar; Sorice, Elia; Shedd, Ryan; Ellis, Jacqueline; Montes, Eduardo
Subject:
RE: Animal Clinic Use
Date:
Wednesday, July 28, 2021 9:51:16 AM
Attachments:
imaae002.Dna
SECURITY NOTE: *This email has originated from OUTSIDE of SMGQ Law. Please exercise caution with attachments
and links *
Javier,
Apologies for replying to a two month old e-mail but for the benefit of Planning staff as they process
your rezoning, I am in agreement with your analysis below. Since this is non-commercial, with no fee
being charged for care of these animals it is more akin to a Community Facility and because these
aren't pets or domesticated animals this more squarely fits as a Community Facility. Even if,
orguendo, this were an Animal Clinic (a General Commercial Use), that is allowed by Right in the T4-L
transect. A Community Facility is by Warrant, allowing for a review by Planning of the proposed use,
assuming the change in zoning occurs.
Daniel S. Goldberg, Esq.
to"N Zoning Administrator
Office of Zoning
,ka 444 SW 2"d Avenue, 2"dFloor
Miami, FL 33130
Phone: (305)416-1442
From: Javier Fernandez <jfernandez@smgglaw.com>
Sent: Monday, May 17, 2021 10:33 AM
To: Goldberg, Daniel <DaGoldberg@miamigov.com>
Cc: Garcia -Pons, Cesar <CGarciaPons@miamigov.com>
Subject: RE: Animal Clinic Use
CAUTION: This is an email from an external source. Do not click links or open attachments unless
you recognize the sender and know the content is safe.
Dan:
Good morning. I greatly appreciate your taking the time to speak with me this morning about PHHS
proposed use. I trust our conversation resolved your questions/concerns. Should you have any further
questions, please do not hesitate to contact me at your earliest convenience.
In the interim, I will follow-up with Cesar about pending modifications to our draft covenant that we
must resubmit.
All the best,
Javier
JAVIER E. FERNANDEZ, ESQ.
SMATTORNkYS SMGQL AW.Com
G Q,._
SANCHEZ-MEDINA, GONZALEZ. QUE ADA.
L
201 Alhambra Circle I Suite 1205 1 Coral Gables, Florida 33134-5107
Office:305.377.1000 Ext. 116 1 Cell: 305.761.2274
;fernandez@smgglaw.com I SMGOLAW.com
From: Javier Fernandez
Sent: Friday, May 14, 2021 6:46 PM
To: Daniel Goldberg (dgoldberg(@miamigov.com) <dgoldberg(@miamigov.com>;
cgarciapons(@miamigov.com
Subject: Animal Clinic Use
Dan & Cesar:
Good evening. As a follow-up to your discussion regarding Pelican Harbor's proposed use, I would like
to share the following observations:
1. PHSS is a not -for -profit organization. We believe the use is Civic Use, specifically a Community
Facility, as the use will be operated by not -for -profit organization for a community -oriented
purpose or objective, specifically environmental education and the preservation of natural
wildlife, which we believe can be fairly characterized as for the primary benefit/service to the
general public.
2. While a primary element of PHSS' services is medical/surgical care for injured or sick animals,
none of those services are offered in exchange for a fee or is PHSS soliciting business from
members of the general public as a for -profit animal clinic would. We provide services to injured,
native animals exclusively (not domesticated pets or animals). No fees are assessed/charged for
the service rendered.
3. An Animal Clinic use is defined in s. 1.2 of the Code as follows:
Animal Clinic: A facility which provides medical and surgical care for sick animals, including overnight
boarding and may include overnight boarding for seven (7) or less healthy animalsall within a
completely enclosed building. See Section 1.1 (Commercial, General Commercial).
Even assuming for the sake of argument that our use should be characterized as Commercial in
nature, the concern around the limitation on the number of animals only applies to the boarding of
healthy animals. To clarify, we do not charge a fee to keep a healthy or sick animal overnight. We do not
also offer boarding services to the general public. That said, the definition of an Animal Clinic use
contains no limitation on the number of sick animals that may be boarded overnight. The limitation on
the boarding of up to seven (7) animals at such a Use applies only to healthy animals. I believe a proper
reading of the use requires such a distinction as when the definition of an Animal Kennel is read in pari
materia with its clinic counterpart a failure to account for such a distinction would render the inclusion of
the word "healthy' in the Animal Clinic Use definition a surplusage.
Let me know when we can schedule a time to discuss this on Monday. I look forward to putting this
issue to rest with your help.
Sincerely,
Javier
JAVIER E. FERNANDEZ, ESQ.
SM ATTORNFYS SMGQLAW.Com
G Q
SANCHEZ-MEDINA. GONZALEZ. QUESADA.
LAGS. GG+MEZ _. MACHADO LL-P
201 Alhambra Circle I Suite 1205 1 Coral Gables, Florida 33134-5107
Office:305.377.1000 Ext. 116 1 Cell: 305.761.2274
ifernandez@smgglaw.com I SMGOLAW.com
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tom
imram