HomeMy WebLinkAboutExhibit CThis instrument is prepared by
(and after recording)
please return this instrument to:
Simon Ferro, Esq.
Gunster, Yoakley & Stewart, P.A.
600 Brickell Avenue, Floor 35
Miami, Florida 33131
Reserved for Recording
DECLARATION OF RESTRICTIVE COVENANTS
WHEREAS, the undersigned, Miami Riverview Apartments, Inc. (` Owner"), holds
the fee simple title to approximately 5.24 acres of land in the City of Miami, Florida (the
"City"), described in Exhibit "A," attached to this Declaration (the "Property"), which
statement as to title is supported by the attorney's opinion attached to this Declaration as
Exhibit "B";
WHEREAS, the Owner sought and obtained a rezoning ("Rezoning") pursuant to
Ordinance No. ("Ordinance") for the Property, which is located at 2501
and 2507, N.W. 161' Street Road, Miami, Florida;
WHEREAS, Policy PA -3.1.9 of the Miami Neighborhood Comprehensive Plan
requires that all new residential development located along the Miami River be the subject
of a recorded covenant acknowledging and accepting the presence of the existing Working
Waterfront 24- hour operations, as permitted; and
WHEREAS, the Port of Miami River has a designated Federal Navigable Channel
featuring numerous job generating businesses, including International Shipping Terminals,
Boatyards, Marinas, Tug Boat Basins, Commercial Fishing, etc.
NOW THEREFORE, in order to assure the City, and other stakeholders, that the
representations made by the Owner during the City's consideration of the Land Use
Application will be abided by the Owner, its successors and assigns, freely, voluntarily,
and without duress, makes the following Declaration of Restrictions covering and running
with the Property:
1) This Declaration of Restrictions satisfies the requirement set forth in Policy PA -
3.1.9 of the Miami Neighborhood Comprehensive Plan.
2) Owner recognizes that legally permitted existing Working Waterfront 24-hour
operations currently exist proximate to the Property. Therefore, Owner agrees:
(a) not to object or otherwise attempt to impede any legally permitted Working
Waterfront 24-hour operations;
(b) to provide all future tenants and prospective owners of the Property notice
of the existing Working Waterfront 24-hour operations and will include a
provision to agree not to object to legally permitted Working Waterfront
24- hour operations in each lease and or Condominium Sale Documents;
(c) that it is solely the Owner's responsibility to design its structures to
accommodate legally permitted Working Waterfront 24-hour operations;
and
(d) that it will not pursue any claims for liability, loss or damage, whether
through litigation or otherwise, against permittees engaging in Working
Waterfront 24-hour operations, related to, noise, smoke, fumes, federally
regulated bridge openings, and/or other quality of life issues that might
result from legally permitted Working Waterfront 24-hour operations.
3) Approval of the Ordinance shall not result in a net loss of the number of recreational
wet -slips along the Miami River, except as required by the United States Coast Guard,
the Miami -Dade County Department of Regulatory and Economic Resources, or as
required by other regulating agencies with appropriate jurisdiction.
Covenant Running with the Land. This Declaration on the part of the Owner shall
constitute a covenant running with the land and may be recorded, at 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 heirs, successors and assigns until such time
as the same is modified or released. These restrictions during their lifetime shall be for the
benefit of, and limitation upon, all present and future owners of the real property and for the
benefit of the City of Miami and the public welfare. The Owner, and their heirs, successors
and assigns, acknowledge that acceptance of this Declaration does not in any way obligate or
provide a limitation on the City.
Term. This Declaration is to run with the land and shall be binding on all parties and
all persons claiming under it for a period of thirty (30) years from the date this Declaration is
recorded after which time it shall be extended automatically for successive periods of ten (10)
years each, unless an instrument signed by the, then, owner(s) of the Property has been
recorded agreeing to change the covenant in whole, or in part, provided that the Declaration
has first been modified or released by the City of Miami.
Modification, Amendment, Release. This Declaration of Restrictions may be
modified, amended or released as to the land herein described, or any portion thereof, by a
written instrument executed by the then owner(s) of the fee simple title to the Property, or any
portion thereof, provided that the same is reviewed by the Miami River Commission for an
advisory recommendation and approved by the City Commission of the City of Miami, Florida.
Should this Declaration be so modified, amended, or released, the Director of the Department
of Planning and Zoning or the executive officer of a successor department, or, in the absence
of such Director or executive officer, by his or her assistant in charge of the office in his/her
office, shall execute a written instrument effectuating and acknowledging such modification,
amendment, or release.
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 his attorney. This enforcement provision shall be in addition to any other remedies
available at law, in equity or both.
Election of Remedies. All rights, remedies and privileges granted 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.
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 by the City, then such construction, inspection and approval shall
create a rebuttable presumption that the buildings or structures thus construct d comply with
the intent and spirit of this Declaration.
Severability. Invalidation of any one of these covenants, by judgment of Court, shall
not affect any of the other provisions which shall remain in full force and effect. However, if
any material portion is invalidated, the City shall be entitled to revoke any approval predicated
upon the invalidated portion
Recordation and Effective Date. This Declaration shall be filed of record in the
public records of Miami -Dade County, Florida at the cost of the Owner following the approval
of the Application. This Declaration shall become effective immediately upon recordation.
Notwithstanding the previous sentence, if any appeal is filed, and the disposition of such
appeal results in the denial of the Application, in its entirety, then this Declaration shall be null
and void and of no further effect. Upon the disposition of an appeal that results in the denial
of the Application, in its entirety, and upon written request, the Director of the Planning and
Zoning Department or the executive officer of the successor of said department, or in the
absence of such director or executive officer by his/her assistant in charge of the office in
his/her absence, shall forthwith execute a written instrument, in recordable form,
acknowledging that this Declaration is null and void and of no further effect.
Acceptance of Declaration. The Owner acknowledges that acceptance of this
Declaration does not obligate the City in any manner, nor does it entitle the Owner to a
favorable recommendation or approval of any application, zoning or otherwise, and the City
Commission retains its full power and authority to deny each such application in whole or in
part and decline to accept any conveyance.
Owner. The term Owner shall include all heirs, assigns, and successors in interest.
[Execution Pages Follow]
MIA ACTIVE 4473501.1