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HomeMy WebLinkAboutSubmittal-Proposed Declaration of Restrictive CovenantsSUBMTTED INTO TF4 PU3LIC RECORD FOR ITEM '2 1.7 ON7-v-ok July 17, 2008 Pierre Sands, President Village West Homeowners PO Box 331389 Coconut Grove, FL 33133 TUCKER GIBBS ATTORNEY AT LAW 2980 MCFARLANE ROAD P.O. Box 1050 ocoNuT GROVE, FLORIDA 33133 TELEPHONE (305) 448-8486 FACSIMILE (305) 448-0773 VIA RECEIVED 2808 JUL 17 PM 120 00 PRJSCEL L CLErR`'h,i?$pN CITY OF MIAMI. FL HAND DELIVERY and Tenants Association Re: Pointe Group Advisors - Proposed Declaration of Restrictive Covenants Dear Mr. Sands: Attached please find the Declaration of Restrictive Covenants ("Declaration") regarding the development of the property bounded generally by Thomas Avenue, Plaza Street, Florida Avenue and Margaret Street. This is the property for which Pointe Group Advisors seeks the change in land use and zoning that the city commission will decide at its July 24, 2008 meeting. My clients are still waiting for a prioritized list of items the Village West Homeowners and Tenants Association ("HOTA") wants included in the Declaration. This Declaration includes issues that were provided to us last month and that were not prioritized. Because the city commission requested that my clients prepare a Declaration prior to its next meeting and that meeting is next Thursday, I have prepared the attached document. This Declaration is modeled on the existing Declaration of Restrictive Covenants for the CVS property on Grand Avenue. The only substantial differences are as follows: 1. Section 6 of the Declaration allows for the owner to amend the Declaration only after (a) 75% of the property owners within 500 feet of the property approve in writing and (b) the city commission approves. The CVS Declaration requires (a) 100% approval of property owners within 375- feet of the property to amend and (b) city commission approval. 2. Section 2.D. of the Declaration requires a six- foot high wall separating the R-1 zoned property from the SD-2 zoned property. The CVS Declaration f� oo RoG z- Jt� i -• tiL r CL:,,J 1 requires an eight -foot wall separating the single-family uses from the commercial uses. Because the wall in our case is on the property line it cannot be more than six -feet without a variance. In the CVS case the entire property from Grand to Florida Avenue is zoned SD-2 so an "internal" wall can be eight -feet without a variance. Understand that we will apply for the variance, but we cannot guarantee that it will be approved. It is up to the city to grant it. My clients remain available to work with you to prepare this Declaration, but we need your list of issues to complete our work. We look forward to discussing this with you and presenting the Declaration to the city commission on July 24. Sincerely, W. Tucker Gibbs cc: Honorable Joe M. Sanchez, Commission Chairman Honorable Angel Gonzalez, Commissioner Honorable Tomas P. Regalado, Commissioner Honorable Marc Sarnoff, Commissioner Honorable Michelle Spence -Jones, Commissioner Pedro Hernandez, City Manager Julie 0. Bru, City Attorney Priscilla Thompson, City Clerk Jim McMaster Peter Gardner, Pointe Group Advisors 2 Submitted into the public record in connection with item PZ.17 on 07-24-08 Priscilla A. Thompson City Clerk This instrument was prepared by: Name: W. Tucker Gibbs, Esq. W. Tucker Gibbs, P.A. Address: 2980 McFarlane Road, Suite 205 Coconut Grove, Florida, 33133 Submitted into the public record in connection with item PZ.17 on 07-24-08 Priscilla A. Thompson City Clerk (Space reserved for Clerk) DECLARATION OF RESTRICTIVE COVENANTS This Declaration of Restrictive Covenants (the "Declaration") made this day of July, 2008, by GV Bimini, LLC, and (hereinafter referred to as the "Owner"), is in favor of the City of Miami, Florida, a municipality located within the state of Florida (hereinafter referred to as the "City"). WITNESSETH WHEREAS, the Owner sought and obtained a land use change and rezoning for its property located at and being legally described as: (See attached Exhibit "A") ("Property") WHEREAS, on July 24, 2008 the City of Miami City Commission approved the land use change to Restricted Commercial and the rezoning of the Property to an SD-2 Coconut Grove Central Commercial District Overlay as more specifically set forth in Exhibit "B" attached hereto; WHEREAS, the Owner is desirous of making this voluntary binding commitment to benefit the City of Miami Submitted into the public record in connection with item PZ.17 on 07-24-08 Priscilla A. Thompson City Clerk as well as the neighbors within the 500 foot radius of the Property that assures that the Property shall be developed in accordance with the provisions of the site plan set forth in Exhibit "C" attached hereto, or as authorized pursuant to a subsequently approved Major Use Special Permit (`EMUS P") ; NOW THEREFORE, the Owner 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, successors and assigns as follows: Section 1. The recitals and findings set forth in the recitals of this Declaration are hereby adopted by reference thereto and incorporated herein as if fully set forth in this section. Section 2. The Owner hereby makes the following voluntary declarations running with the land concerning the use of the Property: A. The Property shall be used solely as set forth in the site plan attached hereto as Exhibit "C" as approved on July 24, 2008 either by a Class II permit or as authorized pursuant to a 2 of 8 subsequently approved MUSP on this property and the adjoining property owned by Owner. B. In no event shall the commercial zoning boundary line be located closer to Florida Avenue on the north and Thomas Avenue to the south than as depicted on Exhibit "B." C. If the Owner or any successor applies to the city for a substantial change to the site plan shown on Exhibit "C" or a substantial change to a site plan on the Property approved by any subsequent MUSP said application shall be made only after written approval of 75% of the owners of real property within 500-feet of the Property. Substantial change shall be as defined in section 2215.1 of the City of Miami Zoning Ordinance 11000 in effect at the date of execution of this document. D. Commercial uses abutting residential uses shall be buffered from abutting single-family, duplex and townhouse uses by a six (6)-foot high wall unless the city permits an eight(8)-foot high wall in that location. 3 of 8 Submitted into the public record in connection with item PZ.17 on 07-24-08 Priscilla A. Thompson City Clerk E. The single family homes on Florida Avenue and townhouses on Thomas Avenue depicted in Exhibit "B" shall comply with the design standards set forth in the SD-28 zoning overlay district as of the date of the recordation of this Declaration. F. The single family homes on Florida Avenue and townhouses on Thomas Avenue depicted in Exhibit "B" shall be completed and receive final certificates of occupancy within 12 months of the issuance of the final certificates of occupancy for the buildings within the commercially zoned portion of the property. G. The undersigned further agrees that these conditions, restrictions and limitations shall be deemed covenants running with the land, shall be recorded in the Public Records of Miami -Dade County by the Owner within thirty (30) days of the non -appealable approval of the land use change and the non -appealable approval of the rezoning and acceptance of this Declaration by the city. The Owner shall provide the city with a recorded copy of this Declaration within sixty (60) days of the recordation of that document. 4 of 8 Submitted into the public record in connection with item PZ.17 on 07-24-08 Priscilla A. Thompson City Clerk The site plan set forth in Exhibit "B" includes a 40,000 square -foot grocery store. In the event that the City amends the zoning ordinance to permit a 40,000 square -foot grocery store as planned ("Amendment") and in the event that no permit is submitted for a grocery store within 24 months of the final approval of the Amendment the Owner shall not object if the City seeks to rezone the Property to its original classification. Section 3. Effective Date. If the City of Miami Commission approves the land use change and the change of zoning, and after said approval has become final and non - appealable, this Declaration shall constitute a covenant running with the title to the Property and be binding upon the Owner(s), its successors and assigns. These restrictions shall be a limitation upon all present and future owners of the Property and for the benefit of the public welfare. Section 4. Term of Covenant. This voluntary covenant on the part of the Owner shall remain in full force and effect and shall be binding on the owner of the Property, its successors and assigns for the initial period of thirty 5 of 8 Submitted into the public record in connection with item PZ.17 on 07-24-08 Priscilla A. Thompson City Clerk (30) years from the date this Declaration is recorded in the public records of Miami -Dade County and shall be automatically extended for successive periods of ten (10) years thereafter. Section 5. Inspection and 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 entering and investigating the use of the Property to determine whether the conditions of this Declaration and requirements of the city's building and zoning regulations are being met. An enforcement action may be brought by the City or any neighbor within 500 feet of the property by action in 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. The prevailing party in the action or suit shall be entitled to recover costs and reasonable attorney's fees. This enforcement provision shall be in addition to any other remedies available under the law. Section 6. Amendment, Modification and Release. This instrument may be modified, amended, or released as to any Submitted into the public record in connection with item PZ.17 on 07-24-08 Priscilla A. Thompson City Clerk 6 of 8 portion of the Property by a written instrument executed by the then Owner of the fee -simple title to the land to be affected by such modification, amendment or release, providing that same has been approved by the City of Miami City Commission after a public hearing, which public hearing shall (including any requirements for public notice) be applied for at the expense of the Owner. However, the Owner shall not seek such modification, amendment, or release without first having obtained the written approval of 75% of the owners of real property within 500-feet of the Property. Upon approval of such modification amendment or release as specified herein, the Director of the City of Miami's Planning and Zoning Department, or his/her successor, shall execute a written instrument in recordable form effectuating and acknowledging such modification, amendment or release. Such instruments shall be in a form acceptable to the City of Miami City Attorney. Section 6. Severability. Invalidation of any one of these covenants by judgment of Court shall not affect any of the other provisions of the Declaration, which shall remain in full effect. Submitted into the public record in connection with item PZ.17 on 07-24-08 7 of 8 Priscilla A. Thompson City Clerk Section 7. Recording. This Declaration shall be filed of record among the Public Records of Miami -Dade County, Florida, at the cost of the Owner. Signed, witnessed, executed and acknowledged on this day of July, 2008. Witnesses: OWNER Signature Print Name Address: Signature Print Name STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by , on behalf of the corporation. S/he is ❑ personally know to me or ❑ has produced as identification. Witness my signature and official seal this day of June, 2008, in the County and State aforesaid. My Commission Expires: Notary Public Print Name 8 of 8 Submitted into the public record in connection with item PZ.17 on 07-24-08 Priscilla A. Thompson City Clerk