HomeMy WebLinkAboutSubmittal-Elvis Cruz-Settlement Agreement and Declaration of Restrictive Covenants111111111111111111111111.11111111111111111111
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CFO," 201tea-t o 8341.a
OR Rk 29277 Pss 4160 - 4212; (53was)
RECORDED 03/20/201.4 15:23:55
HARVE"Y RUVIth CLERK OF COURT
I'fIhti:C-DADE COUNTYt FLORIDA
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SETTLEMENT AGREEMENT
City Clerk
This Settlement Agreement ("Agreement") is entered into between (1) Momingside Civic
Association, Inc., a Florida not -for -profit corporation, which for all purposes of this Agreement
includes the following individual Appellant Morningside Neighborhood residents in their
respective individual capacities: Rod Alonso, Rob Stebbins, Scott Crawford, and Elvis Cruz,
jointly and severally, (collectively referred to for both the Momingside Civic Association, Inc.
and the named individual Appellants as "Morningside"); (2) Bayside 5101, LLC, a Florida
Limited Liability Company ("Bayside"), as successor in interest to Chetbro, Inc., a Florida
corporation ("Chetbro" or "Developer"):; and (3) the City of Miami, a Florida municipal
corporation ("City"). Morningside, Bayside, and the City are collectively referred to as the
"Parties."
RECITALS
WHEREAS, Bayside is the owner of the properties located at 5101 Biscayne Boulevard
(Folio No. 01-3129-018-00702) and 5125 Biscayne Boulevard (Folio No, 01-3219-017-0090)
located in the City of Miami, Florida, which are more particularly described in the Warranty
Deed attached hereto as Exhibit "A", (collectively, the "Property");
WHEREAS, on or about July 21, 2004, the Director of the City's Planning and Zoning
Department, pursuant to Article 15, Sections 609.3, 1512, and 923.2 of City Zoning Ordinance
11000, issued Class II Special Permit No.2003-0309 ( "Class II") to Chetbro;
WHEREAS,the Class II authorized the new construction of a mixed use building at the
Property to include 63 residential units, 87.4 feet in height, 8 floors, 89 parking spaces, and
87,275 square feet of residential floor area (1.72 FAR), as more particularly described in the
attached Exhibit "B" and as analyzed for Gross Floor Area ("GFA") in, to tied
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"Bayside Motel Approved Project Floor Areas," dated December 2, 2013, prepared by DB Lewis
Architecture and Design attached hereto as Exhibit "C";
WHEREAS, Morningside appealed the issuance of the Class II to the City's Zoning and
Appeals Board ("Zoning Board") and on October 4, 2004, the Zoning Board issued Resolution
ZB 2004-0928 denying Morningside's appeal;
WHEREAS, Morningside then appealed the Zoning Board's decision to the City
Commission and, on November 18, 2004, the City Commission adopted Resolution 04-01208
reversing the decision of the Zoning Board;
WHEREAS, the Developer appealed to the Appellate Division of the Eleventh Judicial
Circuit Court in and for Miami -Dade County and on July 14, 2006 the Court quashed the
decision of the City Commission and remanded the matter to the Commission for further
proceedings;
WHEREAS, on February 28, 2008, the City Commission granted the Class II subject to
a further height reduction for the project of 35 feet from the previously approved height;
WHEREAS, the Developer appealed again to the Appellate Division of the Eleventh
Judicial Circuit Court in and for Miami -Dade County and on November 13, 2008, the Circuit
Court affirmed the Miami City Commission's decision;
WHEREAS, the Developer appealed to the Third District Court of Appeal of Florida and
in an opinion dated October 7, 2009 and reported as Dougherty v. City of Miami, 23 So. 3d I56
(Fla. 3d DCA 2009), the Court of Appeal granted certiorari and quashed the decision of the
Circuit Court remanding back to the City Commission;
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WHEREAS, on remand from the second appeal, the City Commission conducted a de
novo review and on May 27, 2010, again imposed a 35-foot height limitation on the development
of the Property;
WHEREAS, upon appeal, the Developer was denied relief by the Circuit Court and
appealed to the Third District Court of Appeal of Florida and, in an opinion dated April 25, 2012
and reported as Dougherty v. City of Miami, 89 So. 3d 963 (Fla. 3d DCA 2012), the Court of
Appeal granted the Developer's writ of certiorari and quashed the decision of the Circuit Court;
WHEREAS, upon remand from the Third District Court of Appeal, the City Commission
approved Resolution No.13-0013 denying Morningside's appeal and affirming the decision of
the Zoning Board, in accordance with the opinion •of the Third District Court of Appeal,
approving the Class II for the development of 63 residential units, 87.4 feet in height, 8 floors, 89
parking spaces, and 87,275 square feet of FAR, consistent with the plans attached hereto as
Exhibits B and
WHEREAS, the existing two-story historic structure (a/Ida Bayside Motor Inn Motel)
located on the Property consists of 13,511 square feet;
WHEREAS, the Miami Modem/Biscayne Boulevard Historic District ("MiMo District")
was established by the City Commission on June 6, 2006;
WHEREAS, Morningside and the City have raised concerns regarding the potential
impact of the Project on the MiMo District and surrounding neighborhoods;
WHEREAS, Bayside recognizes that Morningside and the City have concerns regarding
the potential impact of the Project on the MiMo District and surrounding neighborhoods; e ,....,
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WHEREAS, Bayside wishes to mitigate the Project's perceived impact on the MiMo
District and surrounding neighborhoods by agreeing to certain conditions and knowingly and
voluntarily forgoing certain development rights as granted in the Class II;
WHEREAS, the Parties amicably desire to resolve all of the concerns, issues, claims,
rights, and entitlements raised by Morningside and the City with respect to the development of
the Property, including the height of the proposed building as approved in the Class II;
WHEREAS,on October 22, 2009 , the City has legislatively instituted,. in the applicable
sections of Chapter 23 of the City Code and the Miami 21 Zoning Ordinance, a height restriction
of 35-feet for new buildings or structures developed within the boundaries of the MiMo District;
WHEREAS,the City has created the Transfer of Development Rights ("TDRs")
program, set forth in Section 23-6 of the City Codeto encourage new construction and
improvements to existing structures located within the boundaries of the MiMo District and to
redress the loss of property rights to those property owners Located within the MiMo District by
the imposition of the 3S-foot height limitation; and,
NOW, THEREFORE, in reliance upon the recitals stated above, and in consideration of
the mutual covenants, conditions, and agreements contained herein, each Party hereto, on its own
behalf, and on behalf of the entities specifically noted or referred to herein, intend to be legally
bound, stipulate, and agree as follows:
1. Recitals. The foregoing recitals are true, correct, and incorporated herein by
reference and no Party shall raise, and each Party expressly knowingly and voluntarily waives,
any defense to the enforcement of this Agreement based on any assertion that it is unenforceable
for any reason whatsoever, including, without limitation, public policy considerations.
2. In consideration of the terms of this Agreement, the City agrees as foljes�
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A. Release by the City. The City hereby releases, acquits, satisfies, and
discharges Bayside and Morningside from any and all claims, demands,
liabilities, debts, judgments, damages, expenses, actions, causes of action, or
suits related to the issuance of the Class II and various related appeals, or any
alleged violations of the City's Laws and Ordinances that the City may have,
may have had, or does now have to bring against Bayside and Morningside
which involves this Class II Permit that was granted for the Property.
B. Transfer of Development Rights. The City agrees that in order to encourage
the preservation of the historic Property and to minimize the impact of the
development of the Property on the MiMo District and surrounding
neighborhood, as permitted under the Class II, Bayside will be allowed to
transfer the available unused development rights of the approved Class II in
exchange for Bayside's withdrawal and abandonment of the Class II Special
Permit and forfeiture of rights to issuance of a building permit pursuant to the
Class II. Specifically, the City agrees to issue a TDR Certificate•of Eligibility
("COE") and Certificate(s) of Transfer ("COT''), subject to the following:
(a) The Property qualifies as eligible contributing resource for the purposes of
participating in the T DR program.
(b) The TDR process will go through the standard reviews for the issuance of
the respective COE and COT as appropriate. To the extent required by
Chapter 23 of the City Code of Ordinances, as amended, Bayside will
apply to the Historic and Environmental Preservation Bch aX for
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approval of the rehabilitation project prior to receiving any TDR
certification.
(c) The Property is legally vested under Zoning Ordinance 11000 and the SD-
9 zoning designations for development of 118,755 GFA of structure.
(d) The City recognizes the additional costs and requirements associated with
the rehabilitation of this historic property and, in the unique circumstances
and extensive litigation over the Property as set forth in this Settlement
Agreement, shall in this particular instance, permit a multiplier of not
more than four (4.0) times the unused floor area or unused development
rights in order to calculate the amount of TDRs allowed to be transferred
to an eligible receiving site.
(e) The City agrees that the unused available development rights for the
Property will be issued pursuant to a COE for a total of not more than
459,528 square feet of unused available TDR for the Property, to be
calculated as follows:
--) (i) TDR Multiplier. 118,755 square feet of GFA Pursuant to Class II
x 4.0 TDR Multiplier = 475,020 square feet.
(ii) Total Unused Development Rights Available for Transfer:
475,020 square feet minus 15,492 square feet of existing historic
structure located on the Property == 459,528 square feet of Total
Unused Development Rights Available for Transfer.
(iii)In all other respects, Bayside will comply with all ts,
conditions, safeguards, and stipulations of the Citki
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Ordinance, Section 23-6 of the City Code, which is deemed as
being incorporated by reference as though set forth in full herein.
3. In consideration of the terms of this Agreement, Bayside agrees as follows:
A. Release by Bayside. Bayside hereby releases, acquits, satisfies, and
discharges the City, its officials and employees, and Morningside from
any and all claims, demands, liabilities, debts, judgments, damages,
expenses, actions, causes of action or suit related to the issuance of the
Class II and various related appeals or any alleged violations of Bayside's
property rights that Bayside may have, may have had, or may hereafter
bring against the City andfor Morningside.
B. Indemnification of the City. Bayside agrees to indemnify, defend, save
and hold harmless the City, its officials and employees from any claims,
demands, liabilities, losses, causes of action of any nature whatsoever
arising out of or in connection with the Agreement, the granting of the
TDR COE, TDR COT, building permits, or any other approval or any part
thereof, and from any past, present, or future, development or use of the
Property as referenced in this Agreement, and additionally from and
against all costs, fees, expenses, liabilities, any ordtas, penalties, damages,
judgments, or decrees which may be entered and from and against all
costs, attorneys' fees (inclusive of trial, appellate, and administrative
proceedings), expenses, and liabilities incurred in the defense of such
claim or in the investigation thereof.
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C. Binding Agreement. Bayside expressly understands and agrees that this
Agreement shall be binding upon Bayside, and also upon its heirs,
successors in interest, or assigns and shall be a condition implied in any
conveyance or other instrument affecting the title to the Property or any
portion thereof. This Agreement shall be recorded in the public records of
the Miami -Dade County by Bayside and its own cost and expense and
shall serve as a covenant running with this Property. Bayside
acknowledges that its representations and affirmations contained in this
Agreement touch and concern the Property. Bayside will submit a
certified copy of the recorded Agreement to the Planning Director within
thirty (30) days of the date the Agreement is recorded with a copy to the
City Attorney's Office.
D. Discontinuation of Appeals.Bayside further, on its own behalf and as the
successor in interest or assignee of the original Appellants in the Circuit
and Appellate Courts, Lucia Dougherty on behalf of Contract vendee J.
Laurence Eisnenberg, Trustee hereby affirms to the City, its officials and
employees and to Momingside that all appeals and proceedings styled
Dougherty v. City of Miami and Morningside Civic Association, Inc., et
al., Petitioners vs. Miami City Commission, City of Miami. et. al. (Circuit
Court Appellate Division, 11th Judicial Circuit Case No. 13-055 AP) is
included in this Agreement and is rendered moot upon final approval of
this Agreement. The current appeal being pursued byy 141Mgi
f`
relating to the Dougherty v. City of Miami will be dismissedwith:prejudice
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by Momingside as it is also mooted by this Agreement. Any other
Appellate, administrative, or trial proceedings that are related to the
subject matter of this Agreement will be dismissed with prejudice with
each respective party to bear its own costs and attorneys' fees. Each party
to the current appeal currently pending between Dougherty and
Momingside, as they are identified above, will bear their own respective
costs and attorneys' fees.
E. Withdrawal of Class II Special Permit. Bayside agrees
that upon the issuance of the COE for the TDRs for the Property as set
forth herein and in order to minimize the impact of the development of the
Property, as pe„uitted under the Class II, Bayside will withdraw and
abandon the Class II Special Permit and knowingly and voluntarily forfeits
and relinquishes its rights to the issuance of a building permit pursuant to
the Class II.
1. Transfer of Development Rights. Bayside expressly
agrees to adhere to the requirements for the preservation of eligible
historic resources using the provisions of the TDR Application
process as required under Section 23-6(8) of the City Code and any
other applicable provisions in Chapter 23 of the City Code of
Ordinances, as amended, including but not limited to the
following:
o cc
a. Bayside will transfer or sell the TDRs issued fdt'0
to an eligible receiving T6 zoned property;
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b. Bayside will provide an "existing conditions report"'evaluating
the condition of the Property; and
c. Bayside will provide a "maintenance plan" for the repair and
maintenance of those items that have been identified as
deficient, deteriorated, or non-existent in the existing
conditions report.
Bayside expressly agrees to file and record a restrictive covenant
for the Property in a form acceptable to the City Nanning Director
or authorized designee and the City Attorney as to legal form and
pursuant to the provisions of Section 23-6(11) of the City Code of
Ordinances, as amended, within thirty (30) days of execution of the
first Purchase and Sales Agreement for the sale or transfer of the
Property's TDRs to an eligible receiving site.
4. In consideration of the terms of this Agreement, Morningside agrees as follows:
A. Release by Morninaside. Morningside hereby releases, acquits, satisfies and
discharges Bayside and the City, its officials and employees, from any and all
claims, demands, liabilities, debts, judgments, damages, expenses, actions, causes
of action' or suit related to the issuance of the Class II and various related appeals,
or any alleged violations of the City's Laws and Ordinances that Morningside
may have, may have had, or may hereafter bring against Bayside and/or the City,
its officials and employees.
B. Transfer of Development Rights.In exchange for Bayside's withclp,,r1; A.l�
Class II Special Permit and forfeiture of rights to a buildingtpe;
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development of the Property pursuant to the Class II, Momingside will not oppose
approval of this Agreement, Bayside's TDR application, COE, COT, or any other
approvals required to complete the TDR applications for the Property as set forth
herein, including any approvals that may be required from the City's HEPB and
issuance of building permits for the renovation of the Property.
5. Jurisdiction/Venue. Each Party agrees that the Circuit Court of the Eleventh
Circuit of Miarni-Dade County, Florida shall have exclusive jurisdiction to enforce and/or
interpret any of the terms and conditions of this Agreement, and may submit any disputes arising
under this Agreement by filing an action at law with that court for determination in accordance
with Florida Iaw. In order to expedite the action at law under this section the Parties knowingly
and voluntarily waive their rights to demand a jury trial in any action brought under this section.
Each party shall bear its own attorneys' fees, providing, however, this does not apply if the City
must institute an action to compel Bayside to indemnify the City pursuant to Section 3(B) of this
Agreement in which instance Bayside shall pay the City's attorneys' fees,
6. Entire Agreement/Amendment. This Agreement, including its recitals,
conditions, and releases contains all of the terms and conditions agreed upon by the Parties,
relating to its subject matter, and supersedes any and all prior and contemporaneous agreements,
negotiations, correspondence, understandings, and communications of the Parties, whether oral
or written, respecting the subject matter of this Agreement. This Agreement may be amended or
modified only in writing signed by all Parties hereto. This Agreement shall not be modified by
any oral statement, communication, agreement, course of conduct, or by anything other than'a
writing signed by all the Parties.
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7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the respective successors, heirs, grantees, and/or assigns of the Parties.
8. Authorization. Each person executing this Agreement on each Patty's behalf has
been duly authorized to sign on behalf of the respective Party and to bind each Party to the terms
of the Agreement.
9. Non -Admission of Liability. The Parties agree that neither this Agreement nor
anything contained herein shall constitute or is to be construed as an admission by the Parties of
a violation of any federal, state, or local statute, any state or municipal code, or as evidence of
any other liability, wrongdoing, or unlawful conduct. The Parties acknowledge that they have
entered into this Agreement to avoid the costs and expenses of continued litigation and to settle
disputed claims.
10. Notice. All communications concerning this Agreement shall be in writing by
certified mail, return receipt requested (or by telex, telegram, or telecopy if properly confirmed
in writing by certified mail, return receipt requested) and shall be addressed to the Parties and
their representatives as shown below:
If to Bayside:
Lucia Dougherty, Esq.
Carlos R. Lago, Esq.
Greenberg Traurig, P.A.
333 Avenue of the Americas
Suite 4400
Miami, Florida 33131
Telephone: (305) 579-0603
Facsimile: (305) 961-5603
doughertyl@gtlaw.com
lagoc@gtlaw.com
gtlaw.com
-and -
Avra Jain
888 Biscayne Boulevard
Suite 100
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If to Morningside:
Elvis Cruz
631 NE 57 Street
Miami, Florida 33137
Telephone: 305-754-1420
ElvisCruz@mac.com
-and -
Luis Fernandez, Esq.
2250 SW 3 Avenue
Suite 303
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If to the City:
Johnny Martinez
City Manager
City of Miami
444 S.W. 2°d Avenue
Miami, Florida 33130
Telephone: 3 05-416-102 5
Facsimile: 305-416-1019
j ohnnymartinezOiniiami gov.com
-and
Victoria M$ndez,
City Attorney¶c
444 S.W. 2na Aveipe'+
13
Miami, Florida 33132
Telephone:
Facsimile:
11.
S r&&ttral into the pr:' Z •
record is)
opt City Cie.dc
Miami, Florida 33129
Telephone: 305-854-5 9 5 5
Facsimile: 305-854-5324
lfernandezlaw@aol.com
Miami, Florida 33130
Telephone: 305-416-1800
Facsimile: 305-416-5071
vmendez@miamigov.com
Execution.This Agreement may be executed by the Parties in counterpart
originals with the same force and affect as if fully and simultaneously executed as a single
original document. Fully executed duplicate originals of this Agreement shall be distributed to
the Parties.
12. Effective Date,The "Effective Date" of this Agreement shall be the date this
Agreement has been executed by all Parties,
13. Severability. If any section, part of section, paragraph, clause, phrase, or word of
this Agreement is declared invalid, the remaining provisions of this Agreement shall not be
affected.
14. No Third Party Beneficiaries. Bayside, Momingside, Chetbro, and the City
agree that it is not intended that any provision of this Agreement establishes a third party
beneficiary giving or allowing any claim or right of action whatsoever by any third party under
this Agreement.
15. City Commission Approval.This Agreement requires the approval of the Miami
City Commission.
16. Entire Agreement.This Agreement along with the attached Exhibits A, B, C and
D which are made a part hereof, constitute the sole and only agreement of the Parties relating to
the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the
other as of its date. Any prior agreements, promises, negotiations,
expressly set forth in this Agreement are of no force or effect.
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IN WITI ES$ }WHEREOF, the Parties have executed this Agreement,
ATTEST: CITY OF IYIIAMI, a Florida Municipal
(SEAL: Todd annon, ity Clerk) Corporation ("CITY")
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
By:
Jo Martin=z, PE
Its:
City Manager
Dated: N-- -4—t4.
The foregoing instrument was acknowledged before me this 02L1 day of __4-"_'-�—i_-
201,1,1 by LID kn,` , as the tthd
, respectively, of CITY OF MIAMI, a Florida Municipal Corporation
who appeared before me and is personally known to me, or has produced
as identification, anal' chid take an oath.
NOTARY:
My commission Expires:
0FE1.JA E. PEREZ
MY COMMISSION s EE 109268
EXPIRES:
E1ub2015
weTMut August
AS TO LEGAL FORM
ESS:
endez
ity Attorney
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Print Name:
Notary Public, : tate of Florida at Large
(Notarial Seal)
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BAYSIDE 5101, LLC, a Florida Limited
Liability Company ("Bayside ")
By:
21 •7 1
Dated:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE )
S br itliti into the pry
rccord -or iy;'nra(s)
0�1
ATTEST:
(SEAL:
City CleAt
`i tucr4
..' HOtar, PuDHc . Sta}e
c, Cafids[ BEDS 2 8 0i?
i►'
'f The foregoing instrument was acknowledged before me this 1 day of
201$ by A-vrM q- Nat-) awl. ----' , as the Mews) 0-'44-1r aad
respe by ly, of BAYSIDE 5101, LLC, a Florida Limited Liability
Company, who appeared before me and is personally known to me, , or has —produced
as identification, and did take an oath.
My commission Expires: NOTARY:
Print Name:
Notary Public, State of Florida at Large
(Notarial Seal)
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MORNFNGSIDE CIVIC ASSOCIATION ATTEST: ,
INC., a Florida Non Profit Corporation (SEAL:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this (Pday of 201*-by
, as the i n of MORNINGSIDE CIVIC
ASSOCIATIO INC., a Florida Non ofit Corporation who appeared before me and is
perso e, or has produced ation, and did
take an oath.
My commission Expires: NOTARY:
Print Nam
3OSSt�F �/�� Notary P( blic, '• Florida at Large
-`.••'�p`� GOMMis.;?6 �� (Notarial Se
o=. ' tjp4e b s' .
J'
�9tit
fi•.' `1f�9 �: Z
04,14/
016tttt til flit!!v
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Subtu'ttoi Tito the 1 =f. ie
record for ii. n;) Z.ILt
on I ZZ it City Cle:'it 111111111111111111111111111111111111111111111
This instrument prepared by:
Carlos R. Lago, Esq.
Greenberg Tra urig
333 Avenue of the Americas, Suite 4400
Miami, FL 33131
CFN 2014-R0690503
OR Bk 29336 P9s 2071 - 2090; (20p9s)
RECORDED 10/03/2014 14:56:40
HARVEY RUVIN, CLERK OF COURT
MIAMI-DADE COUNTY, FLORIDA
(Space Reserved for Clerk )
DECLARATION OF RESTRICTIVE COVENANTS
This Declaration of Restrictive Covenants (the "Declaration") made this a, day of
September 2014, by BAYSIDE 5101, LLC, a Florida limited liability company (hereinafter
referred to as the "Owner"), including its successors and assigns, is in favor of the CITY OF
MIAMI, a municipal corporation located within the State of Florida (hereinafter referred to as
the "City").
PREAMBLE
WHEREAS, the Owner sought and obtained a determination of eligibility by the
Historic Environmental and Preservation Board ("HEPB") of the City in accordance with Section
23-6 City of Miami Code of Ordinances, as amended ("City Code"), for the properties located at
5125 and 5101 Biscayne Boulevard, Miami, Florida 33137 (hereinafter collectively referred to as
the "Sending Property") and legally described in the attached hereto as Exhibit "A" (Folio Nos.
01-3129-017-0090 and 01-3129-018-0070), as located within the City's Miami Modern /
Biscayne Boulevard Historic District ("MiMo District"); and
WHEREAS, the Sending Property has a net lot size of approximately 118,755 square
feet and is presently developed with a two-story historically designated and contributing building
(a/k/a Bayside Motor Inn Motel) consisting of approximately 15,492 square feet of existing
building area; and
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WHEREAS, on January 9, 2014, the Miami City Commission approved Resolution No.
R-14-0015 authorizing a Settlement Agreement between and among the Owner, the City, the
Morningside Civic Association, Inc., a Florida not -for -profit corporation, and various residents
of the area, resolving more than a decade of litigation between the parties regarding the
development of the Sending Property and concluding and agreeing that the Sending Property is
eligible for the transfer of a total of 459,528 square feet of unused development rights available
for transfer to eligible receiving site(s), as stipulated in that certain Settlement Agreement, as
recorded on August, 20, 2014 in Official Records Book 29277, at Page 4160, of the Public
Records of Miami -Dade County, Florida (the "Settlement Agreement"); and
WHEREAS, on March 25, 2014, the City issued Certificate of Eligibility No. TDR-
2014-04 pursuant to the approved Settlement Agreement, authorizing a total of 459,528 square
feet of available transfer of development rights to unknown eligible "Receiving Site(s)" in
accordance with Chapter 23 of the City Code and Section 3.14 of Ordinance 13114, the City
Zoning Code ("Miami 21"); and
WHEREAS, on February 4, 2014, the City's Historic and Environmental Preservation
Board ("HEPB") approved Resolution No. HEPB-R-14-006 issuing a Special Certificate of
Appropriateness for the restoration, partial demolition and additions to the Sending Property; and
WHEREAS, the Owner desires to make a voluntary binding commitment to assure that
the Sending Property shall be preserved and maintained in accordance with the provisions of this
Declaration and the City Code, including but not limited to, all applicable provisions of Section
23-6, entitled "Transfer of Development Rights".
2
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NOW THEREFORE, the Owner voluntarily and knowingly covenants and agrees that
the Sending Property shall be subject to the following declarations and restrictions, which shall
be deemed a covenant running with and touching and concerning the land and binding upon the
Owner of the Sending Property, its heirs, successors and assigns as follows:
Section 1. The recitals are hereby incorporated as if fully set forth herein.
Section 2. The Owner hereby makes the following voluntary declarations running
with and touching the land regarding the Sending Property:
(a) Any construction on the Sending Property shall be completed pursuant to
the Special Certificate of Appropriateness as approved by the HEPB pursuant to Resolution No.
HEPB-R-14-006. Any proposed construction outside of the scope of work approved by an
existing Certificate of Appropriateness shall be completed pursuant to the issuance of a
Certificate of Appropriateness to be approved by either the City of Miami's Historic Preservation
Officer (the "Historic Preservation Officer") or the HEPB, as required by Chapter 23 of the City
Code. All work shall be done in accordance with the Secretary of the Interior Standards and the
City of Miami Design Guidelines for Historic Resources. The building shall be preserved and
maintained in accordance with the Existing Conditions & Improvement Report and the
Maintenance Schedule Report attached hereto as composite Exhibit "B".
(b) The Sending Property shall be maintained to a standard consistent with the
City Building Department's standards for "Forty (40) year recertification".
(c) The requirements set forth in Section 2 shall be binding upon the Owner,
its heirs, successors, grantees and assigns.
3
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(d) Notice of any change in ownership of the Sending Property shall be
provided to the Historic Preservation Officer within 30 days of the date of such transfer.
(e) The Receiving Property shall be located in a T6 Transect zone and must
be eligible to participate in the Public Benefits Bonus Program. The Receiving Property shall
have recorded against its title, in the Public Records of Miami -Dade County, Florida, a
Certificate of Transfer indicating the amount of square footage of development rights transferred
thereto.
(f) In the event that the development rights are transferred from the Sending
Property to an eligible Receiving Property, written notice by an addendum to this Declaration
shall be recorded on the Sending Property. The recording of the addendum as to the Sending
Property and the Certificate of Transfer as to the Receiving Property shall be done within thirty
(30) days of such transfer and a copy shall be provided to the Historic Preservation Officer of the
City.
Section 3. Effective Date. This Declaration shall become effective upon
recordation in the Public Records of Miami -Dade County, Florida, and shall continue in effect
for a period of thirty (30) years after the date of such recordation, after which time it shall be
extended automatically for successive periods of ten (10) years. This instrument shall constitute
a covenant running with the land on the Sending Property and shall be binding upon the Owners,
their successors and assigns. These restrictions shall be a limitation upon all present and future
Owners of the Sending Property and shall be for the public welfare, as part of the preservation of
buildings within the Miami Modern/Biscayne Boulevard Historic District. Certificates of
4
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Transfer created and amended pursuant to the transfer of development rights included in this
Declaration shall also be recorded on the Receiving Properties once identified, as notice to the
public of the transfer.
Section 4. Modification, Amendment, Release. This instrument may only be
modified, amended, or released as to the Sending Property, or any portion thereof, by a written
instrument executed by the then Owner(s) of the Sending Property, including joinders by all
mortgagees, if any, provided that the same is also approved in writing by the Historic
Preservation Officer, the Director of the Planning Department, the Zoning Director or its
designated representative, and with legal form approved by the City Attorney.
Section 5. Inspection and Enforcement. This Declaration may be enforced by any
means provided by law. An enforcement action may be brought by the City 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, but attorney's fees shall not be awarded against the City. The
City may also enforce this Declaration pursuant to City Code Chapter 2, Article X, entitled
"Code Enforcement". This enforcement provision shall be in addition to any other remedies
available under the law.
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.
5
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Section 7. Recording. This Declaration shall be filed of record among the Public
Records of Miami -Dade County, Florida, at the Owner's expense within ten (10) days of
execution by the City. The Owner shall furnish a certified copy of the recorded Declaration to
the Historic Preservation Officer within thirty (30) days of its recordation. Certificates of
Transfer created and amended by the Owner and pursuant to the transfer of development rights
included in this Declaration shall also be recorded upon the Receiving Properties once they are
identified. The Owner shall likewise furnish a certified copy of the recorded Certificate of
Transfer to the Historic Preservation Officer within thirty (30) days of its recordation.
Section 8. Miscellaneous Provisions. This Declaration shall be construed and
enforced according to the laws of the State of Florida. Venue in any proceeding between the
parties shall be in Miami -Dade County, Florida. Each party waives any defense, whether
asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient
venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts
and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any
rights to a jury trial. Title and paragraph headings are for convenient reference and are not part
of this Agreement. No waiver of breach of any provision of this Declaration shall constitute a
waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall
be effective unless made in writing. This Declaration constitutes the sole and entire agreement
between the parties hereto. No modification or amendment hereto shall be valid unless in
writing and executed according to Section 4 herein.
[Signature Pages to Follow]
6
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Oil City Citric
Signed, witnessed, executed and acknowledged on this `C day of S4picut,iVa, 2014.
Witnesses:
By:
—6L—
Name: W 0-11cLA_
STATE OF FLORIDA
COUNTY OF MIAMI DADE
BAYSIDE 5101, LLC, a Florida limited liability
company
By:
The foregoing instrument was acknowledged before me thisZddaay of "�f't r 2014 by
Avra Jain, as Manager of Bayside 5101, LLC, a Florida limited liability company. She is ❑
personally known to me or,0"has produced S r, ve rs , as identification, and
did take an oath.
My Commission Expires:
MIA 184061046v1
Notary Public State of Florida a/t Large
Print Name
moo` "°4'• WANDA RODR:GUEZ
Notary Public • State of Florida
F My Comm. Expires Mar 7, 2016
'%;,; A •' Commission # EE 177058
Book29336/Page2077 CFN#20140690503
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APPROVED AS TO FORM AND
CORRECTNESS:
VMFNDEZ
City Attorney
\ o\ `\\(
APPROVED AS TO ZONING
REQUIREMENTS:
NE S. HEGEDUS
Zoning Administrator
MIA 184081046v1
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record 'or i sia;s) VLS, �l
oil r 1 W 17.b . City Clerk
APPROVED AS TO HEPB ORDINANCE
FOR TDR:
/4?1
MEGANtROSS SCHMITT
Historic Preservation Officer
APPROVED AS TO PLANNING
GUIDELINES:
RANCISCO r:A IA
Director of Planning and Zoning
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S3Uti►' t d into the p? c (�
record for i> im s)
on \ ((,2,� (,� . City Cleric
JOINDER BY MORTGAGEE
The undersigned, JDV Bayside, LLC, a Florida limited liability company, as Mortgagee
under the following mortgage:
Mortgage, Assignment of Leases and Rents and Security Agreement dated November
12, 2013, in favor of JDV Bayside, LLC, a Florida limited liability company, and
recorded on November 14, 2013 in Official Records Book 28912, Page 251 of the Public
Records of Miami -Dade County, Florida;
covering all/or a portion of the property described in the foregoing Declaration of Restrictive
Covenant, does hereby acknowledge that the terms of this Declaration of Restrictive Covenants
are and shall be binding upon the undersigned and its successors in title. No liability is
undertaken by the undersigned by the execution and delivery of this Joinder.
Signed, witnessed, executed and acknowledged on this 3 day of Secproaecz, 2014.
Witnesses:
By:
Name:
CeIsr'.om a (Aswt�
By: �v
Name: W a -A d 4, Gt ice( q G �---
JDV BAYSIDE, LLC, a Florida limited liability
company
By:
Joseph Del Vecchio, its Manager
STATE OF FLort,,,
COUNTY OF HE let, -1jp,44
The foregoing instrument was acknowledged before me this 3 day of S,Q2014 by
Joseph Del Vecchio, as Manager of JDV Bayside, LLC, a Florida limited liability company. He is ❑
personally known to me or.Erhas produced ail k[F.rs , as, identification, and
did take an oath.
Notary rublic State of Tl (jy 1 cL
t,u an d_ 6L,
My Commission Expires: Print Name
Error! Unknown document property name.
•""O0( WANDA RODRIGUEZ
,�,\ • c Notary Public - State of Florida
1 e s� , My Comm. Expires Mar 7, 2016
•,' Commission * EE 177058
Book29336/Page2079 CFN#20140690503
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