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Easement with Rudy Perez and Elizabeth Perez zo(Q,- Z ci(oo I{!IIl1[III{!f 111[IIII 11f I{f I[111f11f I{f1 IIII (_EN 2022R0047472 This instrument prepared by, and after recording OR BYE 32964 F9s 1662-1672 (11F9s) return to: RECORDED 01/14/2022 11:54:34 iARVEY RUVIN CLERK OF COURT MIAMI-DADECOUNTY? FLORIDA Name: Gisela Torres Senior Assistant City Attorney Address: Office of City Attorney City of Miami Beach 1700 Convention Center Dr., 4th Floor Miami Beach, Florida 33139 DECLARATION OF RESTRICTIVE COVENANTS AND EASEMENT THIS DECLARATION OF RESTRICTIVE COVENANTS AND EASEMENT ("Declaration"), made this day of , 2021, by Rudy Perez and Elizabeth Perez, his wife ("Owner(s)"), in favor of the City of Miami Beach, Florida, a municipality of the State of Florida ("City"). WITNESSETH : WHEREAS, the Owners hold fee-simple title to certain property in the City of Miami Beach, Florida, located at 7605 Collins Avenue, Miami Beach, Florida, legally described in Exhibit "A" attached hereto and made a part hereof(the "Property"); and WHEREAS, the Owners have obtained title to a portion of the former right-of-way known as Airosa Way (Atlantic Way), legally described in Exhibit "B" attached hereto and made a part hereof (the "Restricted Property"), during the vacation of said right-of-way, approved pursuant to City of Miami Beach Resolution No. 2016-29605, and memorialized in that certain Quit Claim Deed from the City to Owners (the "Quit Claim Deed") recorded contemporaneously with the recording of this Declaration; and WHEREAS, Owners have voluntarily agreed with the City Commission of the City of Miami Beach to the following Declaration of Restrictive Covenants; and Page 1 of 8 WHEREAS, the Owners are desirous of making a binding commitment to assure that the Restricted Property shall be developed in accordance with representations and commitments made to the City Commission. NOW, THEREFORE, the Owners voluntarily covenant and agree that the Restricted Property shall be subject to the following restrictions that are intended and shall be deemed to be covenants running with the land for the Property and Restricted Property, and binding upon the Owners, their successors in interest and assigns, as follows: 1. 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. The Owners acknowledge that the Restricted Property is encumbered by a perpetual, non-exclusive underground utility easement in favor of the City, its employees, licensees, agents, successors and assigns, as the City may, in its discretion, deem necessary within the Restricted Property ("Easement Area"), together with the right of ingress and egress upon, over and across the Restricted Property, reserved by the City in that certain Quit Claim Deed accompanying this Declaration. As such, Owners agree that the Restricted Property may be utilized by Owners to serve the Property as a parking area or other similar use; provided however, that Owners may not construct, install or place any permanent or habitable structures on or over the Easement Area. Any structures placed on or over the Easement Area may be removed, upon reasonable notice to Owners by the City, in connection with the City's use of the Easement Area. In connection with any work performed within the Easement Area, the City shall restore the work area upon completion of the work to the same condition or better than as existed prior to the commencement of the City's work. Page 2 of 8 3. This voluntary Declaration shall remain in full force and effect and shall be binding upon the Owners of the Property and Restricted Property, and their successors in interest and assigns for an initial period of thirty (30) years from the date this instrument is recorded in the public records, and shall be automatically extended for successive periods of ten (10) years, unless modified, amended or release prior to the expiration thereof. 4. This Declaration may be modified, amended or released as to any portion of the Property or Restricted Property by a written instrument executed by the then owners 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 Beach City Commission, or such other board with jurisdiction over the matter, at a public hearing, which public hearing shall be applied for by and at the expense of the Owners. Should this instrument be so modified, amended or released the City Manager, or his successor, or other administrative officer with jurisdiction over the matter, shall execute a written instrument in recordable form effectuating and acknowledging such modification, amendment or release. 5. Invalidation of any provision of this Declaration by judgment of Court shall not affect any of the other provisions of this Declaration, which shall remain in full force and effect. 6. This Declaration shall be recorded in the Public Records of Miami-Dade County, Florida, at the cost of the City. 7. It is understood and agreed that any official of the City of Miami Beach has the right at any time during normal business hours of entering and investigating the use Page 3 of 8 of the Property, to determine whether the conditions of this Declaration and the requirements of the City's building, zoning and land development regulations are being complied with. 8. An action to enforce the terms and conditions of this Declaration may be brought by the City and may be, at law or in equity, against any party or person violating or attempting to violate any provision of this Declaration or provisions of the building, zoning or land development regulations, either to restrain violations or to recover damages. The prevailing party in the action shall be entitled to recover costs and reasonable attorneys' fees, at all levels of trial and appeal. This enforcement provision shall be in addition to any other remedies available under the law. IN WITNESS WHEREOF, the said Owner has signed and sealed these presents the day and year first above written. Signed, sealed and delivered Owner: in the presence of: W. nesses: /I Lt,r✓�uA �A 1 By: int Name: i S (Zpti1 Rudy Pere By:�i��2-0LAI /45 - Print Name: Andrt5 Jzrmaiec Elizabeth Perez STATE OF FLORIDA) COUNTY OF MIAMI-DADE) The foregoing instrument was acknowledged of rq me this by means of [ ] physical presence or [ ] online notarization this 4 day of )G-� , , 2021 by Rudy Perez and Elizabeth Perez, his wife, who are V personally known to me or who have produced as identification. h ‘0,.....„,,,,„ ‘I WOO My Commission ExpirE*. .•c "! '�st7Jotary Public, State of Florida APPROVED AS TO I' � FORM & LANGUAGE%ma's °;�u Q;,w ` pe•�� & FOR EXECUTION�p/ i��i��/'SI TE1OF0- '���`�Page 4 of 8 LCity Attorney Date [INTENTIONALLY OMITTED] Page 5of8 CONSENT OF MORTGAGEE AND SUBORDINATION OF MORTGAGE The undersigned, holder of that certain Mortgage Deed dated December 8, 2017, and recorded in Official Records Book 30807, at Page 3352, of the Public Records of Miami-Dade County, Florida, as amended, encumbering the real property to be subjected to the foregoing Declaration of Restrictive Covenants and Easement made by Rudy Perez and Elizabeth Perez, his wife, in favor of the City of Miami Beach, Florida, hereby consents to said Declaration of Restrictive Covenants and Easement, and agrees that the lien of said Mortgage deed shall be subject and subordinate to the terms of said Declaration of Restrictive Covenants and Easement. IN WITNEWHEREOF, the undersigned has set his hand and seal this 03 day of , 2021. Truist Bank f/k/a SunTrust Bank B - Print Name: STATE OF FLORIDA ) ss: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me--by In ans o ] physical presence or [ ] online notarization this day of ///3 , 2021 by as �^dktr �G�jt Twist Bank f/k/a SunTrust Bank, who personally appeared be ore me and i personally known me or produced as identification. [NOTARIAL SEAL] L, Print Na 1 l � Notary Public, State of Florida �r : `e, UDIA STEINER My commission expires: _ Notary Public,State of Florida Commission#HH 23266 MY comm.expires July 23,2024 Page 6 of 8 EXHIBIT A PROPERTY Lot 6, Block 10, of ALTOS DEL MAR NO. 1, according to the Plat thereof, as recorded in Plat Book 31, at Page 40, of the Public Records of Miami-Dade County, Florida. Folio: 02-3202-004-0450 7605 Collins Avenue Page 7 of 8 EXHIBIT B RESTRICTED PROPERTY EASEMENT AREA Being a portion of"Airoso (Atlantic) Way", 30 feet in width, as shown on the "Corrected Plat Altos Del Mar No. 1", as recorded in Plat Book 31, Page 40, of the Public Records of Miami-Dade County, Florida, and lying in a portion of Government Lot 2, Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami-Dade County, Florida, being more particularly described as follows: The Westerly half of"Airoso (Atlantic) Way", lying easterly of and adjacent to Lot 6, Block 10, according to said "Corrected Plat Altos Del Mar No. 1". Containing 750 square feet more or less. Page 8 of 8 RESOLUTION NO. 2016-29605 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, ON SECOND AND FINAL READING OF THIS RESOLUTION AND FOLLOWING A DULY NOTICED PUBLIC HEARING, PURSUANT TO SECTION 82- 37(A), OF THE CITY CODE, THE VACATION OF ATLANTIC WAY BETWEEN 76TH STREET AND 77TH STREET, CONSISTING OF A 30-FOOT WIDE RIGHT-OF-WAY, CONTAINING APPROXIMATELY 9,000 SQUARE FEET IN TOTAL AREA, ATTACHED HERETO AS EXHIBIT "A," AS SHOWN ON THE CORRECTED PLAT "ALTOS DEL MAR NO. 1," RECORDED IN PLAT BOOK 31 AT PAGE 40, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, AND LYING IN A PORTION OF GOVERNMENT LOT 2, SECTION 2, TOWNSHIP 53 SOUTH, RANGE 42 EAST, CITY OF MIAMI BEACH, IN FAVOR OF THE CITY OF MIAMI BEACH AND THE OWNERS OF 7605 COLLINS AVENUE; AND CONDITIONING THE VACATION ON THE OWNERS OF 7605 COLLINS AVENUE'S EXECUTION OF A COVENANT RUNNING WITH THE LAND THAT THE VACATED PROPERTY IDENTIFIED IN EXHIBIT "A" NOT BE CONSTRUCTED WITH HABITABLE SPACE DUE TO THE EXISTING NON- EXCLUSIVE PERPETUAL EASEMENT ALONG THE LENGTH OF THE VACATED AREA. WHEREAS, the City holds a right-of-way dedication to Atlantic Way, between 76th Street and 77th Street, consisting of a 30 foot wide right-of-way, containing approximately 9,000 square feet (as set forth in the sketch attached as Exhibit "A" hereto), which is reflected in the Corrected Plat "Altos Del Mar No. 1", recorded in Plat Book 31, at page 40, of the Public Records of Miami-Dade County, and lying in a portion of Government Lot 2, Section 2, Township 53 South, Range 42 East, City of Miami Beach, and approved by the City as a Right-of-Way (hereinafter "City Right-of-Way"); and WHEREAS, other than the adjacent residential property owned by the owners of 7605 Collins Avenue, all the other land surrounding Atlantic Way is owned by the City and designated for park use; and WHEREAS, the City desires to improve the Altos Del Mar Park and to vacate the City Right-of-Way; and WHEREAS, the City has obtained the consent of the owners of 7605 Collins Avenue to the vacation and, by operation of law, they would obtain title to half of the City Right-of-Way fronting their property (15' feet by 50') and the remainder, fronting City property, would remain titled in the City; and WHEREAS, Section 177.085, Florida Statutes, provides that, upon the abandonment of a right-of-way, all rights to the former right-of-way revert to the owners of the lots abutting such right-of-way; and WHEREAS, a City may vacate roads when the vacation is in the public interest, or when the street is no longer required for public use and convenience; and WHEREAS, the vacation of the City Right-of-Way serves a public purpose of improving Altos del Mar Park; and WHEREAS, there is an existing non-exclusive utility easement along the City Right-of-Way which shall remain, and shall be identified on the respective deeds for the property owners of 7605 Collins Avenue and the City; and WHEREAS, the property owners of 7605 Collins Avenue shall covenant not to build a habitable structure over the non-exclusive easement area; and WHEREAS, pursuant to the City's existing administrative policies and procedures to consider the vacation of the City streets, alleys, and/or rights-of-way, which also require compliance with Article II, Sections 82-36 through 82-40 of the City Code (which establish procedures governing the sale or lease of public property), the following requirements must be satisfied: 1) The title of the Resolution approving the proposed vacation shall be heard by the City Commission on two separate meeting dates, with the second reading to be accompanied by a duly noticed public hearing, in order to obtain citizen input into the proposed vacation; 2) The proposed vacation shall be transmitted to the Finance and Citywide Projects Committee for its review; 3) In order for the City Commission and the public to be fully appraised of all conditions relating to the proposed vacation, the City's Planning Department shall prepare a written planning analysis, to be submitted to the City Commission concurrent with its consideration of the proposed vacation; and 4) The City shall obtain an independent appraisal of the fair market value of the property proposed to be vacated (Note: This provision may be waived by a 5/7`h vote of the City Commission, finding that the public interest is served by waiving such condition); and WHEREAS, at the July 13, 2016 City Commission Meeting, the City Commission waived the competitive bidding requirements and appraisal requirements of City Code Section 82-39(a) be waived as, by operation of law, the adjacent property owners (property owners of 7605 Collins Avenue and the City) are the only entitled parties to which the vacated right-of-way can be conveyed; and WHEREAS, pursuant to City Code Section 82-38, the Planning Department is required to prepare a planning analysis relating to the six (6) elements for vacating City Property and shall produce said written report prior to final City Commission action on the proposed vacation; and WHEREAS, the Planning Department produced the Planning Analysis on April 13, 2016 and determined that the six(6) criteria elements have been satisfied; and WHEREAS, although the City's procedures for the lease of sale or sale of public property also require an advertised public bidding process, the City Commission also, on July 13, 2016, waived this requirement, by 5/7`h vote finding, in this case and due to the nature of the law pertaining to the vacation of right-of-way, that the public interest is best served by waving such conditions; and WHEREAS, on July 13, 2016, the Mayor and City Commission approved the proposes vacation on first reading; and set the second reading/public hearing; waived OP BK. 32964 PG 1672 LAST PAGE the 5/7th vote, the competitive bidding and appraisal requirements and referred the matter to the Finance and Citywide Projects Committee; and WHEREAS, the Finance and Citywide Projects Committee heard this item at their September 30, 2016 meeting and recommended vacating the existing right-of-way. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission of the City of Miami Beach, Florida, approve, on second and final reading of this resolution and following a duly noticed public hearing, pursuant to section 82-37(a), of the City Code, the vacation of Atlantic Way between 76th Street and 77th Street, consisting of a 30-foot wide right-of-way, containing approximately 9,000 square feet in total area, attached hereto as exhibit "A," as shown on the corrected plat "Altos Del Mar No. 1," recorded in plat book 31 at page 40, of the public records of Miami-Dade County, and lying in a portion of Government lot 2, section 2, Township 53 South, Range 42 East, City of Miami Beach, in favor of the City of Miami Beach and the owners of 7605 Collins Avenue; and conditioning the vacation on the owners of 7605 Collins Avenue's execution of a covenant running with the land that the vacated property identified in exhibit "A" not be constructed with habitable space due to the existing non-exclusive perpetual easement along the length of the vacated area. PASSED and ADOPTED this /9 day of odhoer , 2016. dY7 PHI P LE ��`��, MAYOR ATTEST: 221B APPROVED AS TO C 6 �1 3� CI! FORM& LANGUAGE RAFAEL E. GRANAD I, CI Pr. RK y �,� &FOR XECUTION $� ':INCORP . K- I 40 jrORATED: 11 \c....... x City Attorney Date •C. . q4,� ,H 24,,..