Declaration Regarding the Maintenance of Paver Sidewalk System & Trees/Landscaping Improvements Within the Right-of-Way
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MIAMI-DADE COlINTY, FLORIDA
This instrument was prepared by:
Name: Alan W. Levine, Esq.
Address: Levine & Partners, P.A.
1110 Brickell Ave., 7th Floor
Miami, FL 33131
(Space reserved for Clerk)
DECLARATION REGARDING THE MAINTENANCE OF PAVER SIDEWALK
SYSTEM AND TREES/LANDSCAPING IMPROVEMENTS WITHIN THE RIGHT-OF-
WAY
THIS DECLARATION REGARDING MAINTENANCE OF SIDEWALK AND
TREESjLANDSCAPING IMPROVEMENTS (the "Declaration") is made this _ day of
, 2006, by Florida Development Associates, Ltd., a Florida limited partnership (the
"Owner") and the Bentley Bay Condominium Association, Inc. a Florida not-for-profit
corporation (the " Association") in favor of the City of Miami Beach, Florida, a
municipality of the State of Florida (the "City").
WITNESSETH:
WHEREAS, the Owner holds fee-simple title to the real property (the Master
Parcel") as legally described in Exhibit" A" attached hereto and as described in that certain
Declaration of Condominium for the Bentley Bay Condominium which was recorded on
March 31, 2005 in Official Records Book 23222, at Page 1234, of the Public Records of
Miami-Dade County, Florida (the "Declaration of Condominium"); and
WHEREAS, the Owner has constructed the condominium project known as the
"Bentley Bay Condominium" upon the Master Parcel (the "Project") and, in connection
~. . h the construction of the Project, Owner has installed a brick paver sidewalk and k
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driveway system (collectively, the "Paver System") and Trees, Landscaping and Tree
Grates (collectively, the "Landscaping") upon the public sidewalks located along West
Avenue which is a Public Right-of-Way abutting the Project and within the Master Parcel
over existing utility easements ("Right-of-Way and Utility Easement Area"); and
WHEREAS, the brick paver system within the Right-of-Way and Utility Easement
Area is not a standard system and material used by the City within the right-of-ways; and
WHEREAS, the Association has been formed by the Owner to act as the governing
body for the Project and is responsible for maintaining the common elements of the
Project, all as more particularly provided in the Declaration of Condominium; and
WHEREAS, the City has requested a covenant from the Owner and Association to
insure that the Paver System and Landscaping installed by or on behalf of the Owner will
be maintained in a satisfactory manner in perpetuity without cost or obligation to the City
for as long as the City does not require its removal and replacement with a typical concrete
sidewalk or asphalt paving system.
NOW, THEREFORE, the Owner and Association voluntarily covenant and agree
that the Master Parcel shall be subject to the following provisions that are intended and
shall be deemed to be covenants running with the land and binding upon the Owner and
Association, their successors in interest and assigns, as follows:
1. Preamble. 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.
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2. Membership in Association. The Owner and its successors and assigns, shall
automatically be members of the Association for as long as the Association shall remain in
existence. The Owners, as well as their successors or assigns, shall be required to be
members of the Association and shall remain subject to the burdens and benefits of
membership for as long as the Association shall remain in existence.
3. Maintenance Obligations.
The Association shall be required to perform
maintenance on all of the Paver System as necessary from time to time to insure that the
Paver System shall, at all times, remain in proper condition. Such maintenance obligation
shall include the repair and/ or replacement of broken or cracked brick pavers and
maintaining the Paver System in a level condition so as not to create a tripping hazard for
pedestrians. The Owners or Association shall be responsible to restore the Paver System
and Landscaping within a reasonable time not exceeding 30 calendar days, following
"Acts of Nature" or a permitted Utility Company or Contractor's maintenance, repair
and/ or replacement of any portion of the curbs, gutters, storm drains, utility facilities,
roadways or other improvements abutting and/or lying under the Paver System, all of
which are located within the City's Right-of-Way and Utility Easement Area. The City,
Utility Company or Contractor shall make all necessary effort to salvage and store on site
the Paver System salvageable material and shall provide a temporary restoration surface
with a City standard material such as cement or asphaltic concrete.
4. Failure to Maintain Improvements. In an instance where the City has determined
after reasonable investigation that the Association has not adequately maintained the
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Paver System, or following an inspection the City determines that the surface elevations
vary more than :l: 1/4" under a 10 ft straightedge, or when the City's Parks Department
deems that Landscaping is not properly maintained and after having given the
Association at least thirty (30) calendar days written notice of and opportunity to cure the
condition of the Paver System and/ or Landscaping, the Owner and Association
acknowledge that the City, as the affected local government, has the power and standing
to initiate, or intervene in, any proceeding relevant to the condition or maintenance of the
Paver System and/ or Landscaping. The Owner and Association and their respective
successors and assigns hereby forever waive any objection to such standing, initiation or
intervention by the City (after notice and an opportunity to cure as set forth above).
Further, the City has the right to terminate this covenant and replace the paver system
within the right-of-way, following the 30 calendar days written notice. All replacement
expenses incurred by the City shall be reimbursed by Owner or Association. Any expenses
for restoration not reimbursed to the City shall constitute a lien against the Project. Owner
and Association do not reserve any procedural rights to dispute the City's Notice to
Terminate.
5. City's Power to Compel Maintenance. Subject to thirty (30) calendar days notice of
and opportunity to cure the condition of the Paver System and/ or Landscaping, the
Owner and Association acknowledges the power of the City to take actions to require the
Owner and/ or Association to maintain the Paver System and/ or the Landscaping
according to reasonable minimum maintenance standards that are applicable to other such
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similar improvements within the City, including repair and/ or replacement of the Paver
System and/or Landscaping at Owner or Association's expense, and/or trim, remove or
replace Landscaping as may be necessary, should the Owner or Association fail to perform
their obligation to achieve such minimum maintenance standards. All such repair,
maintenance or replacement expenses incurred by the City shall be reimbursed by Owner
or Association. Any expenses for restoration not reimbursed to the City shall constitute a
lien against the Project
6. No City Financial Obligation or Third Party Beneficiaries. The Owner and
Association acknowledge that the City has and will have no financial obligations or
liability for the improper maintenance of the Paver System and/ or Landscaping, which
are appropriately within the obligations of the Owner and Association to maintain as
provided herein. It is the intention of the parties hereto that no third party beneficiary
rights are created or acknowledged through this Declaration.
7. Term of Declaration. This voluntary Declaration shall remain in full force and effect
and shall be binding upon the Association and Owner, 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 released prior to the expiration thereof or terminated
by the City with a 30 calendar day written notice.
8. Modification. This Declaration may be modified, amended or released as to any
portion of the property encumbered by this Declaration by a written instrument executed
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by the then owner of the fee-simple title to the land to be affected by such modification,
amendment or release providing that same has been approved by the Director of the
Public Works Department. Should this instrument be so modified, amended or released
the Director of the Public Works Department, 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.
9. Severability. 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.
10. Recording. This Declaration shall be recorded in the Public Records of Miami-Dade
County, Florida, at the cost of the Owner.
11. City Inspection. It is understood and agreed that any official inspector of the City
may have the right at any time during normal working hours of investigating the use and
development of the Paver System and/ or Landscaping, to determine whether the
conditions of this Declaration and the requirements of the City's building, zoning, land
development regulations and minimum construction and maintenance standards relating
to the Paver System and Landscaping are being complied with. The minimum
construction standards shall be according to the latest Technical Specifications of ICPI
(Interlocking Concrete Pavement Institute) Standards for the Paver System
12. Hold Harmless and Indemnification. The Owner and Association agree to hold
harmless, indemnify and defend the City and its elected and appointed officials, and
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employees ("City"), from and against any and all actions, lawsuits, claims, liabilities,
damages, judgments, sums of money, losses and expenses, in law or in equity, including,
but not limited to, attorneys' fees and costs at the trial court and all appellate levels, which
may arise or be alleged to have arisen in connection with the approval, installation and
maintenance of the Paver System on or abutting the subject public right-of-way. The City
shall have the right to select counsel at rates then prevailing in Miami-Dade County,
whose fees and costs the Owner and Association will pay.
13. Enforcement. An action to enforce the terms and conditions of this Declaration
relating to the Paver System and/ or Landscaping may be brought by the City and may be
by action at law or in equity against any Owner or the Association, their successors and
assigns violating or attempting to violate any such provision of this Declaration, either to
restrain violations or to recover damages. The prevailing party in the action or suit shall
be entitled to recover costs and reasonable attorneys' fees, at alllevcls of trial and appeal.
This enforcement provision shall be in addition to any other remedies available under the
law.
IN WITNESS WHEREOF, the Owner and Association have duly executed this
Declaration as of the day and year first above written.
[Signature Page Follows]
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Signed, Sealed and Delivered
In Our Presence:
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Dated
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OWNER:
FLORIDA
ASSOCIATES,
partnership
DEVELOPMENT
LTD., a Florida limited
By: Bentley Bay GP Corp., a Florida
corporation, as its General partner
By:
Name:
Title:
ASSOCIATION:
~
BENTLEY BAY CONDOMINIUM
ASSOCIATION, INC. a Florida not-for-
profit corporation
By:
Name:
Title:
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STATE OF FLORIDA )
) SS
COUNTY OF MIAMI-DADE )
THE FOREGOING INSTRUMENT was acknowledged before me this 20 day of S ",/.lie. .
2006 by B~~ 'f l€. t"h}~A.L , as "lA-N).QI-h~lsr/2}(1)tf- of Bentley Bay GP Corp., as General
Partner of FLORIDA DEVELOPMENT ASSOCIATES, LTD., a Florida limited partnership.
~She is personally known to me or lug preaeeea ~
ideRtifieatien.
~L .jlJ{:IfjJ
~RY PUBLIC. State of Florida
Print Name: ~,J Cr. f..{CGrI L..L
My Commission Expires:
"..... Notary Public Slale 01 FloMda
! ~-...... Karen G McGill
\;. 3 My CommISsion 00389394
0,1'-' ExpiresOl/24/2009
STATE OF FLORIDA
)
) SS
)
COUNTY OF MIAMI-DADE
THE FOREGOING INSTRUMENT was acknowledged before me this 20 day of
.j vJJ~ . 2006 by 6AiJ)..'( 6. HO/OJ-{AL . as f'e.eS\i)~ 'j' of BENTLEY
~Y CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation.
<1::!9fShe is personally known to me Qr ha:l pluJuLt:J -
A& ide:utifi~atiBn.
My Commission Expires:
[~.. .....- Nota.ryPUb.lic.StaleoIFlorida
j t.6 ~ Karen G McGill
;.,,::y.j' My CommISSion 00389394
.. D. '" Expires 01/2412009 _
cI(!)J4 i /}t 'jjJJ
NOTARY PUBLIC. State of Florida
Print Name: .+{A('?~ Ct. "rCrILL
F:\atto\HELG\Forms covenants\Covenants\Bentley Bay\CMB Maintenance covenant w landscaping.052606.dl.-X:
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Exhibit A
Legal Description of Master Parcel
Lots 1 and 2 and the Outlot, in Block 1, of "AMENDED PLAT OF FLEETWOOD
SUBDIVISION" according to the plat thereof, as recorded in Plat Book 28 at Page 34 of the Public
Records of Miami-Dade County, Florida: TOGETHER WITH the right-of-ways vacated per
Resolution No. 90-19880 passed and adopted January 17, 1990; TOGETHER WITH Lots 26 and 27
or "AMENDED PLAT OF AQUARIUM SITE RESUBDIVISION", according to the plat thereof as
recorded in Plat Book 21 at Page 83 of the Public Records of Miami-Dade County, Florida. Said
lands lying in and being in the City of Miami Beach, Florida. Said lands containing 69,321 square
feet more or less.
AND
Lots 24 and 25, of 'AMENDED PLAT OF AQUARIUM SITE RESUBDIVISION", according to
the plat thereof as recorded in Plat Book 21 at Page 83 of the Public Records of Miami-Dade
County, Florida; TOGETHER WITH that certain twenty-five (25) foot wide strip of land lying to
the South of said Lot 24 between said :Lot 24 and Lots 20, 21, 22, and 23, of 'AMENDED PLAT
OF AQUARIUM SITE RESUBDIVISION", according to the plat thereof as recorded in Plat Book
21 at Page 83 of the Public Records of Miami-Dade County, Florida. Said lands lying in and being
in the City of Miami Beach, Florida. Said lands containing 15,181 square feet more or less.
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