HomeMy WebLinkAboutVACATION AGREEMENT
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VACATION AGREEMENT
THIS VACATION AGREEMENT (the Agreement) is entered into as of this
J 3 llJ) day of Ftf'~l_IOlf\'''' , 2005 between the CITY OF MIAMI BEACH, FLORIDA
(City) and AR & J SOBE, LLC, a Florida Limited Liability Company
("Developer") .
RECITALS:
A. Developer anticipates constructing a project (the "Project") on the
land bordered by 5th Street, 6th Street, Alton Road and Lenox Avenue (which
includes the Alley, as defined below) containing a grocery store and other retail,
commercial, office and/or restaurant uses and parking garage.
B. In connection therewith, Developer has requested a vacation of
City's rights to the Alley (as hereafter defined).
C. Developer and City have reached agreement as to the terms and
conditions for vacating the Alley.
NOW, THEREFORE, in consideration of the sum of ten (10) dollars and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in further consideration of the mutual covenants and
obligations hereinafter set forth, the parties do hereby agree as follows:
1 ) Recitals
The foregoing Recitals are true and correct and are incorporated herein by
reference.
2) Definitions
Alley - means that certain parcel of property subject to a right-of-way
easement held by the City containing approximately 7,800 square feet and
legally described on Exhibit A, attached hereto.
Grocery Lease - means a binding lease entered into by Developer
having a minimum term of ten (10) years for not less than 40,000 square
feet of retail area within the Project with a national or regional grocery
supermarket chain which will unconditionally (subject to customary
contingencies for Substantial Completion, as that term is customarily
defined by the chief building official of the City of Miami Beach, and
performance by Developer of its construction obligations under the
Grocery Lease) obligate the tenant to initially open for business as a
grocery supermarket in the entire leased premises upon completion of the
Project.
Commence Construction or Commencement of Construction -
means the commencement of major work (such as installing pilings or
pouring foundations) for the construction of the Project. Any and all
preliminary site work (including, without limitation, any environmental
remediation and ancillary demolition or site preparation work, including
installation of forms for foundations) shall not be deemed to be
Commencement of Construction.
Unavoidable Delays - means delays due to strikes, slowdowns, lockouts,
acts of God, inability to obtain labor or materials, war, enemy action, civil
commotion, fire, casualty, catastrophic weather conditions, eminent
domain, a court order which actually causes a delay (unless resulting from
disputes between or among the party alleging an Unavoidable Delay,
present or former employees, officers, members, partners or shareholders
of such alleging party or affiliates (or present or former employees,
officers, partners, members or shareholders of such affiliates) of such
alleging party, unusual permitting or inspection delay, or another cause
beyond such party's control or which, if susceptible to control by such
party, shall be beyond the reasonable control of such party. Such party
shall use reasonable good faith efforts to provide notice to the other party
not later than ten (10) days after such party knows of the occurrence of an
Unavoidable Delay; provided, however, that either party's failure to notify
the other of the occurrence of an event constituting an Unavoidable Delay
within such ten (10) day period shall not alter, detract from or negate its
character as an Unavoidable Delay or otherwise result in the loss of any
benefit or right granted to the delayed party under this Agreement. In no
event shall (i) any party's financial condition or inability to fund or obtain
funding or financing constitute an Unavoidable Delay with respect to such
party, and (ii) any delay arising from a party's (or its affiliate's) default
under this Agreement constitute an Unavoidable Delay with respect to
such party's obligations hereunder. The times for performance set forth in
this Agreement (other than for monetary obligations of a party) shall be
extended to the extent performance is delayed by Unavoidable Delay,
except as otherwise expressly set forth in this Agreement.
3) Transit Facilitv Dedication Area and Transit Facilitv Dedication Area
Finishes: Elevator
(a) The Transit Facility Dedication Area shall be a transit element
which, at City's option, shall be dedicated and conveyed to the City, and
designed and constructed by Developer, initially intended to be used as a
mass transit intermodal stop/pedestrian waiting area.
-2-
The parties agree that the City shall have the option, but not the
obligation, to purchase the Transit Facility Dedication Area for the sum of
$ 333,333 (which sum represents an agreed upon amount by the parties
to compensate Developer for the loss of rentable space within the Project
as a result of the inclusion of the Transit Facility Dedication Area). If, but
only if, the City exercises its option to acquire the Transit Facility
Dedication Area Developer shall be obligated to construct the Transit
Facility Dedication Area and the Transit Facility Dedication Area Finishes,
as described in Exhibit C, attached hereto, as part of the Project and City
shall be obligated to make the contributions for such items as set forth
herein.
The City's option to purchase the Transit Facility Dedication Area shall
commence upon receipt of written notice from the Developer; provided,
however, that Developer shall deliver such written notice not later than
forty-five (45) days prior to Commencement of Construction. Thereafter,
the City shall have forty-five (45) days from receipt of said written notice to
exercise its option to purchase the Transit Facility Dedication Area (and if
City does not exercise its option within such 45 day period, the option shall
be deemed waived).
The Transit Facility Dedication Area shall be located at the northwest
corner of the Project, the legal description of which will be prepared prior
to conveyance to reflect the area noted and labeled in Exhibit 8, attached
hereto, but only between the height of street grade and approximately 11
feet above street grade (it being understood and agreed that Developer
shall retain the portions below grade for underground footings,
foundations, utilities and the like, and shall retain the portion above
approximately 11 feet for improvements to be located over the Transit
Facility Dedication Area).
If the City exercises its option to acquire the Transit Facility Dedication
Area, Developer shall design the Transit Facility Dedication Area, and the
Transit Facility Dedication Area Finishes and shall complete construction
thereof prior to Substantial Completion of the Project. The Transit Facility
Dedication Area Finishes shall include those items described on Exhibit C
hereto.
(b) At the City's option, such option to be exercised within forty-five
(45) days of receipt of written notice from the Developer (but Developer
shall deliver such notice not later than forty-five (45) days prior to
Commencement of Construction), the Developer shall also design and
construct an additional Elevator Pit and Shaft within the Project and install
an elevator therein to service the Transit Facility Dedication Area
(hereinafter referred to as the Elevator) and shall execute and deliver an
easement as hereinafter specified. If City dos not exercise its option
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within such 45 day period, the option shall be deemed waived. If City
exercises its option, Developer shall complete construction of the Elevator
prior to Substantial Completion of the Project.
(c) The City's contributions for the (i) Transit Facility Dedication Area
and Transit Facility Dedication Area Finishes and (ii) the Elevator, shall be
as follows:
i) If City exercises its option to acquire the Transit Facility
Dedication Area, City shall pay a Purchase Price, in the
amount of $333,333, for Transit Facility Dedication Area,
which shall be the extent of the City's contribution for the
land (based on the loss of rentable retail footage to
accommodate the area), plus City will fund a total amount
equal to the actual hard and soft costs of the Transit Facility
Dedication Area Finishes, not to exceed $118,204.80.
ii) If City exercises its option to acquire the Elevator, the City
will fund a total amount equal to the actual hard and soft
costs pertaining to the Elevator, not to exceed $356,187.60.
The City shall not be obligated to fund any other costs of
Developer's Project hard and/or soft costs. In the event that the cost of
construction of the Transit Facility Dedication Area, Transit Facility
Dedication Area Finishes and the Elevator exceed the City's
contribution(s) for same, as set forth in this Agreement, Developer shall be
solely responsible for payment of, and shall pay, all excess costs.
The amount to be paid by City at the times hereinafter specified
shall be computed based upon the maximum amount that Developer could
be entitled to receive under the terms of this Agreement, but Developer
shall, within thirty (30) days after Substantial Completion of the Project,
provide to City a reconciliation of (and City shall have the right to review
and confirm) the actual hard and soft costs of the Transit Facility
Dedication Area Finishes and Elevator and Developer shall within such
thirty (30) day period provide payment to City for any refund owed to City
on account thereof.
The City shall fund its contribution to the Transit Facility Dedication
Area, at the time (the "Conveyance Date") of the dedication and
conveyance of the Transit Facility Dedication Area to the City, which will
take place no later than the Commencement of Construction of the Project
and the issuance by the City Manager of the recordable instrument(s)
stating that the Conditions provided for in Paragraph 4 of this Agreement
have occurred, such that no further reversion of the Alley to the City is
possible. City shall fund its contribution to the Transit Facility Dedication
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Area Finishes as follows: 50% upon the Conveyance Date and 50% upon
completion of the Transit Facility Dedication Area Finishes. City shall fund
its contribution to the Elevator as follows: 50% upon the Conveyance
Date and 50% upon the date that the Elevator is completed and is placed
in operation.
The form of the dedication and conveyance of the Transit Facility
Dedication Area shall be by Deed, a copy of which is attached hereto as
Exhibit D.
Developer shall maintain, repair and replace, or cause to be
maintained, repaired and replaced, all portions of the Transit Facility
Dedication Area, Transit Facility Dedication Area Finishes, and the
Elevator (for purposes of this paragraph only, collectively referred to as
the Facilities) in a first class manner. Routine day-to-day maintenance of
the Facilities shall be at Developer's sole cost and expense and shall
include, but not be limited to, Developer's obtaining a service contract
(having such terms that are consistent with recognized industry standards)
for the maintenance of the Elevator, which contract shall also be approved
by the City, such approval not to be unreasonably withheld. The City shall
reimburse Developer for any repair and replacement items with respect to
the Facilities (which shall include any repairs not covered by the service
contract for maintenance of the Elevator); the City's reimbursement
obligations shall be in accordance with an annual line item budget,
addressing repair and replacement issues related to the Facilities, which
budget shall be prepared and mutually agreed upon by the parties and
shall be reconciled annually. Notwithstanding anything contained in this
paragraph, the City shall in no way be responsible for taxes or insurances
on the Project, which costs shall be the sole responsibility of Developer.
Based upon the agreed upon terms set forth in the preceding
paragraph, the parties shall negotiate and execute an agreement in
recordable form specifically delineating their respective responsibilities
with respect to maintenance, repair and replacement of the Facilities, no
later than the date on which the City exercises its option for the Facilities.
4) Conditions for Reverter of Allev
The Alley shall automatically and without further action revert to City, but
in confirmation thereof Developer shall promptly, on written demand,
execute and deliver to City a Quit Claim Deed (subject to no liens on
encumbrances created by through or under Developer or its successors in
title), if any of the following Conditions (the Conditions) shall occur (the
City Manager is authorized and directed to promptly confirm by recordable
instrument signed by the City Manager that any or all of the Conditions
have been satisfied, if such be the case):
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a. In the event that Developer shall not have entered into a
Grocery Lease, as that term is defined in Paragraph 2 of
this Agreement, (i) on or before the Outside Date (which
shall be defined as the date which is eighteen (18)
months after the effective date of this Agreement or the
date of Commencement of Construction (the
Construction Commencement Date), whichever is
earlier), which unconditionally (except for typical
contingencies for Substantial Completion and
performance by Developer of its construction obligations
under the Grocery Lease) obligates Developer to lease
not less than 40,000 square feet (although approximately
44,000 square feet is contemplated) to a national or
regional grocery store for use as a grocery supermarket
and which obligates the tenant (under the Grocery
Lease) to initially open for business as a grocery
supermarket in the entire Grocery Lease Premises upon
substantial completion of construction; or
b. In the event Developer shall not have Commenced
Construction of the Project on or before September 1 st,
2006, subject to extension for Unavoidable Delays, or the
first construction draw funding of Developer's Project
construction loan has not occurred within six (6) months
after Commencement of Construction, subject to
extension for Unavoidable Delays (but, in respect to the
condition for funding of the first Project construction draw,
the reverter of the Alley shall abate as long as
construction is proceeding and shall be deemed waived
upon funding of the first Project construction draw,
whenever it occurs); or
c. In the event the Project is substantially modified from the
Project approved by the Historic PreseNation Board and
Design Review Board, as referenced in the respective
Board orders issued in August 2004, and attached as
Exhibits E, and E hereto (interior reconfigurations to
change or reduce parking areas and/or add/reconfigure
leaseable space shall not be deemed a modification of
the Project approved as aforestated, except where any
such interior reconfigurations (i) may result in a change to
the Project Floor Area Ratio (F.A.R.) beyond that which is
permitted as of the Effective Date of this Agreement,
and/or (ii) may result in a modification to the Project
exterior fa9adelelevations from those approved in the
-6-
attached August 2004 Board orders). Notwithstanding
the preceding sentence, nothing in this Agreement shall
be deemed or construed to relieve and/or release the
Project from future jurisdiction of any City regulatory
authority, including but not limited to the Historic
Preservation and/or Design Review Board ; or
d. Provided City has timely exercised its option to purchase
same and tenders payment for same, in the event that
Developer does not dedicate and convey the Transit
Facility Dedication Area to the City on or before the
Commencement of Construction.
5) Utilities
Developer shall, at its sole cost and expense, be responsible for (i) the
relocation and/or removal of any utilities currently occupying the Alley; or
(ii) making such other arrangements, such as the granting of utility
easements, as may be required by the owners of utility equipment
currently occupying the Alley.
6) Bond
Developer shall require that its General Contractor provide a Payment and
Performance Bond for the Project. Developer shall deliver evidence of the
existence of the Payment and Performance Bond for the Project to the
City prior to the issuance of the Building Permit for the Project.
7) Vacation Notice and Quit Claim Deed
The City shall properly execute a Notice of Vacation of Alley in a form to
be recorded in the Public Records of Miami-Dade County, Florida, along
with a Quit Claim Deed evidencing the vacation of the Alley, and shall
deliver the Notice and the Quit Claim Deed to the Escrow Agent as
provided in Paragraph 8, as soon as practicable following approval of the
Vacation of the Alley and of this Agreement by the Mayor and City
Commission, but in no event later than the Commencement of
Construction for the Project.
8) Escrow
The City Attorney's Office shall act as Escrow Agent and shall hold all of
the documents provided for in this Agreement and shall not deliver said
documents to either party until the requirements of this Agreement have
been met, where upon such documents shall be promptly delivered to the
party for whose benefit they were given.
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Following approval of the Vacation of the Alley and of this Agreement by
the Mayor and City Commission, but in no event later than the
Commencement of Construction for the Project, Developer shall deliver
the following documents to the City Attorney's Office:
1) A Quit Claim Deed for the Transit Facility Dedication Area, if
City elects to require same.
2) A non-exclusive easement, in form and substance
reasonably acceptable to the City and Developer, for the
Elevator and public access thereto, if City elects to have
Developer install the Elevator.
3) The agreement contemplated in the last paragraph of
Section 3 above.
The City shall deliver the following documents to the City Attorney's Office:
1 ) Notice of Vacation of the Alley
2) Quit Claim Deed for the Alley
3) Full payment of the purchase price for the Transit Facility
Dedication Area and full payment for the costs of installing
the Transit Facility Dedication Area Finishes and Elevator, to
the extent City has elected to require/have Developer install
same.
4) The agreement contemplated in the last paragraph of
Section 3 above.
In the event that any of the Conditions have not been satisfied within the
time frames permitted by this Agreement, or that any of Developer's
required documents required pursuant to this paragraph have not been
delivered to the City Attorney's Office within the time period specified
herein, then the City Attorney's Office shall return the documents to the
party that initially executed the documents and the vacation of the Alley
shall be deemed null and void, and the City and Developer shall have no
liability to each other, and each party shall be responsible for its own cost.
9) Costs
The Developer shall be responsible for the cost of documentary stamps
and/or other tax imposed on the conveyances contemplated by this
Agreement.
10) Documentation
The parties hereto warrant and represent to each other that they and the
individuals executing this Agreement and any documentation used to
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affect the intent hereof have full power and authority to enter into this
Agreement and to execute the documentation used herein on behalf of
their respective party. Each party shall execute and deliver to the other
party such documentation as either party may reasonably request from
time to time to affect the terms and intent of this Agreement.
11) Attorney's Fees
In the event either party brings an action to enforce this Agreement, the
prevailing party shall be entitled to recover all costs and reasonable
attorney's fees incurred in pursuing such action including cost and fees on
appeal.
12) BindinQ AQreement
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, their successors and assigns.
13) Notices
All notices, consents, waivers, directions, requests or other instruments of
communications provided for under this Agreement, shall be deemed
properly given if, and only if, delivered personally or sent by registered or
certified U.S. mail, postage pre-paid, as follows:
IF TO CITY:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Attorney
With copies to:
IF TO DEVELOPER:
AR & J SOBE, LLC
c/o Berkowitz Development
2665 So. Biscayne Drive
Suite 1200
Coconut Grove, Florida 33133
Attention: Jeffrey L. Berkowitz
With copies to:
David E. Sacks, Esquire
Pathman Lewis, LLP
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One Biscayne Tower, Suite 2400
Two So. Biscayne Blvd.
Miami, Florida 33131
The Developer and the City may change the above mailing address at any
time upon giving the other party written notification. All notices under this
Agreement must be in writing.
14) Governinq Law and Exclusive Venue
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, both substantive and remedial, without
regard to principles of conflict of laws. The exclusive venue for any
litigation arising out of this Agreement shall be Miami-Dade County,
Florida, if in state court, and the U.S. District Court, Southern District of
Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT,
DEVELOPER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER
PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
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IN WITNESS WHEREOF, City and Developer intending to be legally
bound, have executed this Vacation Agreement as of the day and year first
above written.
WITNESSES:
,
i
I
OF MIAMI BEACH,
IDA, a municipal
r ion of the State of Florida
~'E~
~r;;;h~~~L
Print Name ta~--rl, 'J:,/frYI (C.~
By: r;;~ p~~
Robert Parcher, City Clerk
[SEAL]
STATE OF FLORIDA
)
) SS:
COUNTY OF MIAMI-DADE )
The for going instrument was acknowledged before me this ~,.tf-day of
, 2005, by David Dermer, as Mayor, and Robert archer, as
City lerk, of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of
the State of Florida, on behalf of such municipal corporation. They are
personally known to me or produced valid Florida driver's licenses as
identification :--
'~I~fY.~~ KERRY HERNANDEZ
f.f y..~ MY COMMISSION # DD 175491
~'.......gl EXPIRES: May 3, 2007
~m~,n<'" Bonded Thru Notary Public Undarwriters
/4~
Notary f6ublic
~ oY'lI/eY'J1tll/de2-
Print Nariel
My Commission Expires:
APPROVED AS TO
FORM & LANGUAGE
- 11 - & FOR EXECUTION
WITNESSES:
AR&J SOBE PARTNERS LLC, a
Florida limited liability company, by
Berkowitz Limited Partnership, its
manager by Berk itz, LLC, its general
partner
~~
By:
. erkowitz, Manager
_E~
"/ f\St.-1/ ~
. ELEj
STATE OF FLORIDA
)
) S8:
)
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this _~ day of
t-AA fl..G l:L, 2005, by Jeffrey L. Berkowitz, as manager of Berko~LC, as
general partner of Berkowitz Limited Partnership, as manager of AR&J SOBE,
LLC, a Florida corporation, a Florida limited liability company, on behalf of such
limited liability company. He is personally known to me or produced a valid
Florida driver's license as identification.
~~g. ~~
N ary Pu IC
Print Name
My Commission Expires:
R~a\, Yasmio S. Bey
\~ j My CommiSSiOn 00271356
01'" Expwes December 01, 2007
- 12 -
exhibit A
Legal Description of Alley
That certain 20 foot wide alley, bounded on. the east by the west boundary of Lots
1 through 8, Block 104, Ocean Beach Florida Addition No.3 according to the plat
tllereof as recorded in Plat Book 2, Page 81 of the Public Records of Miami-Dade
County, Florida; bounded on the west by the east line of Lots 9 through 16, of said
Block 104; bOl.U1ded on ~e north by the north line of Lot 1 of said Block 104
projected westerly; and bounded on the south by the north line of the south 10 feet
of Lot 8 of said Block 104 projected westerly
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Exhibit C
Tmosit Facility Dedication Area Improvements
Sidewalk
Column Finishes
Tile Wall Finish
Canopy
Design and Contractor Fees rolated thereto
Exhibit 0
Form. of Deed for Dedication
P~.pU~ by lUll! nturn tOI
A:enold. A. Brawn, Eaq,
ailz~ sumb.~9 a.aU. P.ricc , AXelrad ~p
2500 W.~OVi. riftanc1a1 e.~:.~
Miam1. 'lorida 33131
Part of Folio Nos.:
SPECIAL WARRANTY :DE:Etl (WIR RESERVA'J:'ION OF EASEMENT RIGH'l'Sl..
THIS SPECIAL WARRANTY PEED, mnde as of the _ day of
A.D., 200_, :by AA&3 Sobe, LLC, a Flo:dcla limited liability c::ompany,
party of the first part, whose post office address is 0/0 Berkowitz
Oevelopment, 2665So~th Bayshore nrive, Suite 1200, Coconut Grove,
Florida 33133, hereinafter called the Grantor, to The City of Miam!
Beach, a Florida munic::ipal corporation, party of the second part, whose
post office address is 1700 Convention Center Drive, Miami Beach,
Florida 33139, Attn~ City Manaser, and whose Federal Identification No.
is , hereinafter called the Grantee (wherever ~sed
hQrein the term "Grantor'! and "Grantee" include all the parties to the
instrument and the heirs, legal representatives and assigns of
individuals, and the s~~cessors and assigns of corporations):
WITNESSETH: That Grantor, for and in consideration of the sum of
Ten Dollars ($10.00) and other valua:ble c::onsideration, the receipt and
adequacy of whic:h are hereby ac::knowledged, hereby grants, bargains,
sells, aliens, remises, releases, conveys and confirms unto the
Grantee, all that certain land situate in Miarni.~ade Co~ty, Florida,
viz:
[Insert legal description for Transit Fac::ility
Dedi~ation Area]
Su.bject to:
1. Taxes and assessments for the year 200_ and aU:bsequent
years.
2. Zoning and other gover.nmental rules, regulations and
ordinances.
3. Easements and restrictions of record, if any, without intent
to reimpose or reinstate same hereby.
4. Fac::ts whic::h a current anc1 accurate surveyor visual
inspection of the property might disclose.
TOGETHER. with all the tenements, ~ere~litaments and appurtenances
thereto belonging or in anywiaeappertaining.
TO HAVE AND TO HO~ the same in fee simple forever.
It is th~ intent of Grantor, by this instrument, to convey to
Grantee the above descri:bed property for a pUblic mass transit
intermodal stop pedestrian waiting ~ea. It is expressly provided that
if and when said ~e shall be lawf~lly and permanently discontinued,
the title to the abov~ described property shall immediately revert to
Grantor, its successors and assigns, and Grantor, its successors and
assigns shall have the right to immediately re-possess same.
Grantor reserves a pe~etual easement for the erection of columns
to support the improvements from time to time located above said
property, and for ~tility and drainage facilities within said columns,
in loc::ations reasonably approved by Grantee that will not materially
adversely interfere with the use of said property for its intended
pUblic mass transit intermodal stop pedestrian waiting area. Said
easemen~ shall include all rights reasonably necessary to enable
Grantor to install, maintain, repair and replace from time to time, the
facilities and items that Grantor is permitted to install in, above or
below said property.
AND Grantor hereby c::ovenants with Grantee that Grantor is
lawfully seized of said property in fee simple and has good right and
lawful authority to sell and convey said property; and hereby warrants
the title to said property and will defend the same against the lawful
claims of all persons claiming :by, through or under said Grantor.
IN WITNESS WHEREOF, Grantor has caused this instrument to be
exeeueed as of the day and year first above written.
Signed, sealed and delivered
in the presence of:
AR&~ Sobe, LLC, a
Florida limited lla:bility
c::ompany, by Berkowitz Limited
Partnership, its manager, by
Berkowit%, L~C, its general
partner
Sign Name:
Print Name:
Sign Name:
Print Name:
By:
Jeffrey ~. Berkowitz, Manager
STA'J:'E OF
ss:
COUNTY OF
The foregoing instrument was acknowledged before me this ____ day
of , 200_, by Jeffrey L. Berkowitz, as Manager of
Berkowitz, LLC, as general partner of Be.kowitz ~imited Partnership, as
manager of AR&J Sooe, LLC. a ?lorida limited liability company, in the
capac1ty aforestated; suCh person is personally known to me or has
pro~u=ed a driver's license as 1dent1f1caeion.
My Commission Expires:
Sign Name:
Print Name:
Nota:ry P1.1blic
Serial NO. (none if :blank) :
[NO'rAAIAL SEAL]
HISTORIC PRESERVATION BOARD
City of Miami Beach, Florida
MEETING DATE:
August 17, 2004
FILE NO:
2164
PROPERTY:
501 Alton Road - 5th and Alton Shoppinq Center
LEGAL:
Lots 1 through 16, in Block 104, Ocean Beach FI, Addition No, 3 as recorded
in Plat Book 2, Page 81, of the Public Records of Miami-Dade County, Florida.
IN RE:
The Application for a Certificate of Appropriateness for the demolition of two
(2) existing one (1) and two (2) story buildings, the partial demolition of one
(1) two (2) story building, and the construction of a vertical retail center
encompassing an entire city block, including three (3) levels of retail
integrated into a seven (7) story parking garage.
ORDER
The applicant, A&R Sobe, L.L.C., filed an application with the City of Miami Beach Planning
Department for a Certificate of Appropriateness.
The City of Miami Beach Historic Preservation Board makes the following FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing and
which are part of the record for this matter:
A. The three (3) existing subject structures are located within the Ocean Beach Local Historic
District. The pharmacy structure is designated contributing in the Miami Beach Historic
Properties Database, and the other two (2) structures are non-contributing.
B, Based on the plans and documents submitted with the application, testimony and
information provided by the applicant, and the reasons set forth in the Planning Department
Staff Report, the project as submitted is consistent with the Certificate of Appropriateness
Criteria in Section 118-564(a)(1) of the Miami Beach Code, is not consistent with
Certificate of Appropriateness Criteria b, d, e, and f in Section 118-564(a)(2) of the Miami
Beach Code, is not consistent with Certificate of Appropriateness Criteria c, d, e, h, j. and
k in Section 118-564(a)(3) of the Miami Beach Code, and is not consistent with Certificate
of Appropriateness Criteria for Demolition 8 and 9 in Section 118-564(f)(4).
C. The project would be consistent with the criteria and requirements of section 118-564 if
the following conditions are met:
Exhibit E
ril
Page 2 of7
HPB File No, 2164
Meeting Date: August 17, 2004
1, Revised elevation, site plan and floor plan drawings shall be submitted to and approved
by staff; at a minimum, such drawings shall incorporate the following:
a. The design of southwest corner, including the curving blank wall, shall be further
developed, in a manner to be reviewed and approved by staff.
b, The area to the east of the 5th Street circulation core shall be further studied, in a
manner to be reviewed and approved by staff,
c, The southeast corner of the proposed structure shall be further studied, subject
to the review and approval of staff,
d. All upper levels of the Retail Galleria, if provided, shall be consistent with the
second level and shall be subject to the review and approval of staff.
e. The location and number of display cases at ground level along Alton Road and
6th Street shall be minimized and subject to the review and approval of staff,
f. The north and west exterior walls of the historic structure shall be reconstructed,
and limited penetrations shall be allowed to connect the original structure with
adjacent new retail space, The remainder of the structure shall be fully renovated
and restored in accordance with all historic documentation and shall be painted
with an earth tone color, which contrasts the new structure,
g. The finish of the steps of the entrance stair tower fronting Fifth Street shall
consist of finished concrete or similar surface, and shall be consistent with the
floor pattern at the entrance lobby, in a manner to be reviewed and approved by
staff.
h. All glazing on the subject structure shall be clear.
i. The final exterior color scheme shall be consistent with the submitted renderings
and shall be subject to the review and approval of staff, and shall require a
separate permit.
j. All storefront kneewalls on the south elevation shall have a maximum height of
12 inches.
k, The northern portion of the first level of the west elevation (MacArthur Station)
shall be activated in some manner through the implementation of display cases
for public art or interactive transit information; such cases shall have a minimum
depth of three (3') feet.
G>f()IIl
<,
Page 3 of 7
HPB File No, 2164
Meeting Date: August 17, 2004
I. The horizontality of the first two (2) levels of the south elevation shall be
further studied in order to better anchor the upper floors to the ground, in a
manner to be reviewed and approved by staff.
m. The quality of stucco shall be highly controlled; the stucco system to be
utilized shall be reviewed and approved by staff prior to the issuance of a
Building Permit.
2. A revised landscape plan, prepared by a Professional Landscape Architect,
registered in the State of Florida, and corresponding site plan, shall be submitted to
and approved by staff. The species type, quantity, dimensions, spacing, location
and overall height of all plant material shall be clearly delineated and subject to the
review and approval of staff, At a minimum, such plan shall incorporate the
following:
a. 5th Street:
i. The installation of any new Zahedi Date Palms (Phoenix d. ' zahedi' )
on city property shall be permitted only if an executed and recorded
covenant is submitted, which addresses the property owners'
perpetual responsibility for the maintenance, and if necessary, cost
of replacement of such landscape material. Palms would be
replaced by the property owner regardless of cause, whether by
accident, vandalism or natural causes, The new Date Palms shall
match the existing Date Palms in size, with a minimum 20' clear
trunk.
ii. The crape myrtles on 5th Street shall be replaced with a flowering
tree suitable to south Florida, with an overall height of 16' and
spread of 8', The sidewalk planting cut out shall have a minimum
size of 6' x 6'for all large trees.
b, Lenox Avenue:
I. The proposed Royal Palms shall have a minimum gray wood size of
20'.
c. 6th Street:
I. Proposed Veitchia shall be replaced with the designated street tree
for 6th Street which is Coconut Palms, The proposed Silver
Buttonwood shall be replaced with Mahogany trees on 6' x 6' cut
outs with tree grates.
oll\
Page 4 of 7
HPB File No. 2164
Meeting Date: August 17, 2004
d, All exterior walkways and driveways shall consist of decorative pavers, set
in sand or other equally semi-pervious material, subject to the review and
approval of staff.
e, All landscape areas abutting driveways and parking areas shall be defined
by decorative bollards.
f. A fully automatic irrigation system with 100% coverage and an automatic
rain sensor in order to render the system inoperative in the event of rain.
Right-of-way areas shall also be incorporated as part of the irrigation
system.
g. The landscape plan shall satisfy all requirements as specified in Chapter
l8A of the Miami-Dade County Code. A landscape table shall be provided
on final landscape plans addressing all minimum quantity and native
requirements, subject to the review and approval of staff.
h, Backflow preventors and any other type of utility device shall not be
permitted within any required yard or any area fronting a street or sidewalk,
The location of backflow preventors, siamese pipes or FPL boxes, if any,
and how they are screened with landscape material from the right-of-way,
shall be indicated on the plans and shall be subject to the review and
approval of staff.
3, All existing exterior utilities lines and poles facing any public or private street right-of-
way shall be placed underground, The placement of the underground utilities shall be
coordinated with the landscape architect in order to prevent interference with the
installation of any proposed landscape.
4, All building sign age required by code to be approved by the Design Review Board
shall be subject to the review and approval of the Design Review Board.
5, A traffic mitigation plan, which addresses all roadway Level of Service (LOS)
deficiencies relative to the concurrency requirements of the City Code, if required, shall
be submitted prior to the issuance of a Building Permit and the final building plans shall
meet all other requirements of the Land Development Regulations of the City Code.
6, Manufacturers drawings and Dade County product approval numbers for all new
windows, doors and glass shall be required, prior to the issuance of a building permit,
7, All roof-top fixtures, air-conditioning units and mechanical devices shall be clearly noted
on a revised roof plan and shall be screened from view, in a manner to be approved by
staff .
cnw
Page 5 of 7
HPB File No, 2164
Meeting Date: August 17, 2004
8, Revised drawings, with corresponding color photographs, that are separate from the
construction documents, drawn to scale and clearly documenting the existing
conditions of the subject building, shall be submitted, Such drawings and photographs
shall include all four elevations and interior floor plans of the building, as well as a site
plan.
9. An historic analysis of the existing structure, inclusive of a photographic and written
description of the history and evolution of the original building on site, shall be
submitted to and approved by staff, prior to the issuance of a Building Permit; such
historic analysis shall be displayed prominently within the public area of the structure,
in a location to be determined by staff.
10, All new and altered elements, spaces and areas shall meet the requirements of the
Florida Accessibility Code (FAC).
11 , The project shall comply with any landscaping or other sidewalk/street improvement
standards as may be prescribed by a relevant Urban Design Master Plan approved prior
to the completion of the project and the issuance of a Certificate of Occupancy.
12. The applicant may be required to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee. Based on a
preliminary review of the proposed project, the following may be required by the
Public Works Department:
a. Remove/replace sidewalks, curbs and gutters on all street frontages, if
applicable.
b, Mill/resurface asphalt in rear alley along property, if applicable,
c. Provide underground utility service connections and on-site transformer
location, if necessary.
d. Provide back-flow prevention devices on all water services.
e. Provide on-site, self-contained storm water drainage for the proposed
development,
f. Meet water/sewer concurrency requirements including a hydraulic water model
analysis and gravity sewer system capacity analysis as determined by the
Department and the required upgrades to water and sewer mains servicing this
project.
g. Payment of City utility impact fees for water meters/services.
h. Provide flood barrier ramps to underground parking or minimum slab elevation
to be at highest adjacent crown road elevation plus 8".
11
Page 6 of 7
HPB File No. 2164
Meeting Date: August 17,2004
I. Right-af-way permit must be obtained from Public Works,
j. All right-of-way encroachments must be removed,
k, All planting/landscaping in the public right-of-way must be approved by the
Public Works and Parks Departments.
13. A drawn plan and written procedure for the proposed demolition shall be prepared and
submitted by a Professional Structural Engineer, registered in the State of Florida,
which fully ensures the protection of the public safety, as well as the protection of the
existing structure on the subject site and all existing structures adjacent to the subject
site during the course of demolition,
14. The Certificate of Appropriateness for Demolition shall only remain in effect for the
period of time that there is an active Certificate of Appropriateness for the associated
new construction on the subject property.
15, The Final Order shall be recorded in the Public Records of Miami-Dade County, prior to
the issuance of a Building Permit.
16. The Final Order is not severable, and if any provision or condition hereof is held void or
unconstitutional in a final decision by a court of competent jurisdiction, the order shall
be returned to the Board for reconsideration as to whether the order meets the criteria
for approval absent the stricken provision or condition, and/or it is appropriate to
modify the remaining conditions or impose new conditions.
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for this matter,
and the staff report and analysis, which are adopted herein, including the staff recommendations which
were amended by the Board, that the Certificate of Appropriateness is GRANTED for the above-
referenced project subject to those certain conditions specified in paragraph C of the Findings of Fact
(Condition Nos. 1-16, inclusive) hereof, to which the applicant has agreed.
No building permit may be issued unless and until all conditions of approval as set forth herein have
been met. The issuance of a Certificate of Appropriateness does not relieve the applicant from
obtaining all other required Municipal, County and/or State reviews and permits, including zoning
approval. If adequate handicapped access is not provided, this approval does not mean that such
handicapped access is not required or that the Board supports an applicant's effort to seek waivers
relating to handicapped accessibility requirements.
When requestinQ a buildinQ permit. three (3) sets of plans approved by the Board. modified in
accordance with the above conditions. as well as annotated floor plans which clearly delineate the
Floor Area Ratio (FAR) calculations for the proiect. shall be submitted to the PlanninQ Department, If all
of the above-specified conditions are satisfactorily addressed, the plans will be reviewed for building
permit approval. Two (2) sets will be returned to you for submission for a building permit and one (1)
set will be retained for the Historic Preservation Board's file.
-rlJA
Page 7 of 7
HPB File No. 2164
Meeting Date: August 17,2004
If the Full Building Permit is not issued within eighteen (18) months of the meeting date at which this
Certificate of Appropriateness was granted and construction does not commence and continue in
accordance with the requirements of the applicable Building Code, the Certificate of Appropriateness
will expire and become null and void, unless the applicant, prior to expiration of such period, makes
application to the Board for an extension of time; the granting of any such extension of time shall be at
the discretion of the Board, At the hearing on any such application, the Board may deny or approve the
request and modify the above conditions or impose additional conditions. Failure to comply with this
Order shall subject the Certificate of Appropriateness to Section 118-564, City Code, for revocation or
modification of the Certificate of Appropriateness.
day of ,5f..fem~, 20f!1,
Dated this
(~
BY:
THOMAS R. MOO Y, AICP
DESIGN AND PRESERVATION MANAGER
FOR THE CHAIR
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
The ..., foregoing instrument was acknowledged before me this I f.(,1/ day of
S ~~ 6611 2~ by Thomas R. Mooney, Design and Preservation Manager, Planning
Department, City of Miami Beach, Florida, a Florida Munici~ I Corporation, behalf of the
Corporation, He is personally known to me. /'/o,! ; ~
-------- ' VI
NOTARY PUBL C f.
Miami-Dade County, Florida
My commission expires:
~'\. ChalfeaA Taft
\",,"' My CommIssion 00233174
EJcPlres July 17, 2007
, TJrf- i
Approved As To Form: fl~ L /7/
Legal Department: 7~ ( 'i-It( -0 V
Filed with the Clerk of tht?'Historic Preservation Board on J r ( 'fro...,
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F:\PLAN\$DRB\DRB04\AugDRB04\2164. fO.doc
cn\V
DESIGN REVIEW BOARD
City of Miami Beach, Florida
MEETING DATE:
August17,2004
IN RE:
The Application for Design Review Approval for the demolition of two (2) existing
one (1) and two (2) story buildings, the partial demolition of one (1) two (2) story
building, and the construction of a vertical retail center encompassing an entire
city block, including three (3) levels of retail integrated into a seven (7) story
parking garage,
FILE NO:
17667
PROPERTY:
501 Alton Road - 5th and Alton ShODPinq Center
ORDER
The applicant, A&R Sobe, L.L.C., filed an application with the City of Miami Beach Planning Department
for Design Review Approval.
The City of Miami Beach Design Review Board makes the following FINDINGS OF FACT, based upon
the evidence, information, testimony and materials presented at the public hearing and which are part of
the record for this matter:
A. Based on the plans and documents submitted with the application, testimony and information
provided by the applicant, and the reasons set forth in the Planning Department Staff Report, the
project as submitted is not consistent with Design Review Criteria 4, 5, 6, 7, 10, 12, 13, 15, and
16 in Section 118-251 of the Miami Beach Code.
B. The project would be consistent with the criteria and requirements of section 118-251 if the
following conditions are met:
1. Revised elevation, site plan and floor plan drawings shall be submitted to and approved
by staff; at a minimum, such drawings shall incorporate the following:
a, The design of southwest corner, including the curving blank wall, shall be further
developed, in a manner to be reviewed and approved by staff,
b. The area to the east of the 5th Street circulation core shall be further studied, in a
manner to be reviewed and approved by staff.
c. The southeast corner of the proposed structure shall be further studied, subject
to the review and approval of staff.
d. All upper levels of the Retail Galleria, if provided, shall be consistent with the
second level and shall be subject to the review and approval of staff.
e. The location and number of display cases at ground level along Alton Road and
6th Street shall be minimized and subject to the review and approval of staff.
f. The north and west exterior walls of the historic structure shall be reconstructed,
and limited penetrations shall be allowed to connect the original structure with
Exhibit E
~
Page 2 of 5
Meeting Date: August 17, 2004
ORB File No. 17667
adjacent new retail space. The remainder of the structure shall be fully renovated
and restored in accordance with all historic documentation and shall be painted
with an earth tone color. which contrasts the new structure.
g. The finish of the steps of the entrance stair tower fronting Fifth Street shall
consist of finished concrete or similar surface, and shall be consistent with the
floor pattern at the entrance lobby, in a manner to be reviewed and approved by
staff,
h. All glazing on the subject structure shall be clear,
i. The final exterior color scheme shall be consistent with the submitted renderings
and shall be subject to the review and approval of staff, and shall require a
separate permit.
j. All storefront kneewalls on the south elevation shall have a maximum height of
12 inches.
k, The northern portion of the first level of the west elevation (MacArthur Station)
shall be activated in some manner through the implementation of display cases
for public art or interactive transit information; such cases shall have a minimum
depth of three (3') feet.
I. The horizontality of the first two (2) levels of the south elevation shall be further
studied in order to better anchor the upper floors to the ground, in a manner to be
reviewed and approved by staff.
m, The quality of stucco shall be highly controlled; the stucco system to be utilized
shall be reviewed and approved by staff prior to the issuance of a Building
Permit.
2. A revised landscape plan. prepared by a Professional Landscape Architect, registered in
the State of Florida, and corresponding site plan, shall be submitted to and approved by
staff. The species type, quantity, dimensions. spacing, location and overall height of all
plant material shall be clearly delineated and subject to the review and approval of staff.
At a minimum, such plan shall incorporate the following:
a, 5th Street:
i. The installation of any new Zahedi Date Palms (Phoenix d. 'zahedi') on
city property shall be permitted only if an executed and recorded
covenant is submitted. which addresses the property owners' perpetual
responsibility for the maintenance, and if necessary, cost of replacement
of such landscape material. Palms would be replaced by the property
owner regardless of cause, whether by accident, vandalism or natural
causes. The new Date Palms shall match the existing Date Palms in
size, with a minimum 20' clear trunk.
ii. The crape myrtles on 5th Street shall be replaced with a flowering tree
suitable to south Florida, with an overall height of 16' and spread of 8',
The sidewalk planting cut out shall have a minimum size of 6' x 6'for all
large trees,
1{
Page 3 of 5
Meeting Date: August 17, 2004
DRB File No, 17667
b, Lenox Avenue:
i. The proposed Royal Palms shall have a minimum gray wood size of 20'.
c, 6th Street:
i. Proposed Veitchia shall be replaced with the designated street tree for
6th Street which is Coconut Palms, The proposed Silver Buttonwood
shall be replaced with Mahogany trees on 6' x 6' cut outs with tree
grates.
d. All exterior walkways and driveways shall consist of decorative pavers, set in
sand or other equally semi-pervious material, subject to the review and approval
of staff.
e. All landscape areas abutting driveways and parking areas shall be defined by
decorative bollards.
f, A fully automatic irrigation system with 100% coverage and an automatic rain
sensor in order to render the system inoperative in the event of rain, Right-of-
way areas shall also be incorporated as part of the irrigation system.
g. The landscape plan shall satisfy all requirements as specified in Chapter 18A of
the Miami-Dade County Code, A landscape table shall be provided on final
landscape plans addressing all minimum quantity and native requirements,
subject to the review and approval of staff,
h. Backflow preventors and any other type of utility device shall not be permitted
within any required yard or any area fronting a street or sidewalk, The location of
backflow preventors, siamese pipes or FPL boxes, if any, and how they are
screened with landscape material from the right-of-way, shall be indicated on the
plans and shall be subject to the review and approval of staft.
3. All existing exterior utilities lines and poles facing any public or private street right-of-way shall
be placed underground. The placement of the underground utilities shall be coordinated with
the landscape architect in order to prevent interference with the installation of any proposed
landscape.
4. All building signage required by code to be approved by the Design Review Board shall
be subject to the review and approval of the Design Review Board.
5, A traffic mitigation plan, which addresses all roadway Level of Service (LOS) deficiencies
relative to the concurrency requirements of the City Code, if required, shall be submitted prior
to the issuance of a Building Permit and the final building plans shall meet all other
requirements of the Land Development Regulations of the City Code,
6, Manufacturers drawings and Dade County product approval numbers for all new windows,
doors and glass shall be required, prior to the issuance of a building permit.
7, All roof-top fixtures, air-conditioning units and mechanical devices shall be clearly noted on a
revised roof plan and shall be screened from view, in a manner to be approved by staff.
8, All new and altered elements, spaces and areas shall meet the requirements of the Florida
Accessibility Code (FAC).
~
Page 4 of 5
Meeting Date: August 17, 2004
ORB File No. 17667
9. The project shall comply with any landscaping or other sidewalk/street improvement
standards as may be prescribed by a relevant Urban Design Master Plan approved prior to
the completion of the project and the issuance of a Certificate of Occupancy,
10. The applicant may be required to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee, Based on a
preliminary review of the proposed project, the following may be required by the Public
Warks Department:
a, Remove/replace sidewalks, curbs and gutters on all street frontages, if
applicable.
b, Mill/resurface asphalt in rear alley along property, if applicable,
c. Provide underground utility service connections and on-site transformer location,
if necessary.
d, Provide back-flow prevention devices on all water services,
e. Provide on-site, self-contained storm water drainage for the proposed
development.
f, Meet water/sewer concurrency requirements including a hydraulic water model
analysis and gravity sewer system capacity analysis as determined by the
Department and the required upgrades to water and sewer mains servicing this
project.
g. Payment of City utility impact fees for water meters/services.
h. Provide flood barrier ramps to underground parking or minimum slab elevation to
be at highest adjacent crown road elevation plus 8".
i. Right-of-way permit must be obtained from Public Works.
j. All right-of-way encroachments must be removed.
k. All planting/landscaping in the public right-of-way must be approved by the Public
Works and Parks Departments.
11. The Final Order is not severable, and if any provision or condition hereof is held void or
unconstitutional in a final decision by a court of competent jurisdiction, the order shall be
returned to the Board for reconsideration as to whether the order meets the criteria for
approval absent the stricken provision or condition, and/or it is appropriate to modify the
remaining conditions or impose new conditions,
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for this matter, and
the staff report and analysis, which are adopted herein, including the staff recommendations which were
amended by the Board, that the Application for Design Review approval is GRANTED for the above-
referenced project subject to those certain conditions specified in Paragraph B of the Findings of Fact
(Condition Nos, 1-11, inclusive) hereof, to which the applicant has agreed,
]il
Page 5 of 5
Meeting Date: August 17, 2004
ORB File No, 17667
No building permit may be issued unless and until all conditions of approval as set forth herein have been
met. The issuance of Design Review approval does not relieve the applicant from obtaining all other
required Municipal, County and/or State reviews and permits, including zoning approval. If adequate
handicapped access is not provided, this approval does not mean that such handicapped access is not
required or that the Board supports an applicant's effort to seek waivers relating to handicapped
accessibility requirements.
When requestinq a buildino permit, three (3) sets of plans approved bvthe Board, modified in accordance
with the above conditions, as well as annotated floor plans which c1earlv delineate the Floor Area Ratio
(FAR) calculations for the proiect, shall be submitted to the Plannino Department. If all of the above-
specified conditions are satisfactorily addressed, the plans will be reviewed for building permit approval.
Two (2) sets will be returned to you for submission for a building permit and one (1) set will be retained for
the Design Review Board's file.
If the Full Building Permit is not issued within eighteen (18) months of the meeting date at which this
Design Review Approval was granted and construction does not commence and continue in accordance
with the requirements of the applicable Building Code, the Design Review Approval will expire and
become null and void, unless the applicant, prior to expiration of such period, makes application to the
Board for an extension of time; the granting of any such extension of time shall be at the discretion of the
Board. At the hearing on any such application, the Board may deny or approve the request and modify the
above conditions or impose additional conditions, Failure to comply with this Order shall subject the
Design Review Approval to Section 118-258, City Code, for revocation or modification of the Design
Review Approval.
Dated this
{i{
day of
5e fTEfJJ~ 20!if-
DESIGN REVIEW BOARD
THE CIT F MIAMI AC
Approved As To Form:
Legal Department:
~
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Filed with the Clerk of the Design Review Board on
( t9-Il{-DY
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F :\PLAN\$DRB\DRB04 \AugDRB04\ 17667. fO.doc
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