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HomeMy WebLinkAboutDeclaration Regarding the Maintenance of Paver Sidewalk System .;1005- zl'fq~ This instrument was prepared by: Name: Gary A Saul, Esq. Address: Greenberg Traurig, PA. 1221 Brickell Avenue 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 MAINTENANQE OF SIDEWALK AND TREES/LANDSCAPING rl"" Ai 'f IMPROVEMENTS (the "Declaration") is made this.11 day of fit L 2001. by TRG-Alaska I, Ltd., a Florida Limited Partnership (the "Developer") and the City of Miami Beach, Florida, a municipality of the State of Florida (the "City"). WITNESSETH: WHEREAS, the Developer holds fee-simple title to the real property (the "Master Parcel") as legally described in Exhibit "A" attached hereto upon which it is constructing a multi-story residential condominium building to be known as Apogee, a Condominium (the "Condominium" or the "Project"), which shall be created by the recordation of a Declaration of Condominium for Apogee, a Condominium in the Public Records of Miami-Dade County, Florida (the "Declaration of Condominium"); and WHEREAS, pursuant to the Declaration of Condominium and the provisions of the Florida Condominium Act (Chapter 718, Florida Statutes), Apogee Condominium Association, Inc., a Florida not-for- profit corporation (the "Association) has been established as the association for the Condominium to govern the common elements and to act on behalf of all of the owners of the Master parcel with respect to all matters of common interest to the owners; and WHEREAS, in connection with the construction of the Project, Developer has installed a brick paver sidewalk and driveway system (collectively, the "Paver System") and Trees, Landscaping and Tree Grates (collectively, the "Landscaping") upon the public sidewalks located along South Pointe Drive 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 City has requested a covenant from the Developer to insure that the Paver System and Landscaping installed by or on behalf of the Developer 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 Developer voluntarily covenants and agrees 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 Developer and the Association, as and to the extent provided herein, and 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. 2. Membership in Association. From and after the time that the Declaration of Condominium is recorded in the public records of Miami-Dade County, all record Unit Owners in the Condominium, as defined in the Declaration of Condominium, 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 Developer, until such time as the Declaration of Condominium is recorded in the public records of Miami-Dade County, and the Association after such time (as applicable, the "Applicable Maintenance Party") shall be required to perform maintenance on all of the Paver System and Landscaping as necessary from time to time to insure that the Paver System and Landscaping shall, at all times, remain in proper condition. Such maintenance obligation shall include, without limitation, 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 Applicable Maintenance Party shall be responsible to restore the Paver System and Landscaping within a reasonable time not exceeding thirty (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 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 Applicable Maintenance Party has not adequately maintained the Paver System, or following an inspection the City determines that the surface elevations vary more than :t y.." under a 10ft straightedge, or when the City's Parks Department deems that Landscaping is not properly maintained and after having given the Applicable Maintenance Party at least thirty (30) calendar days written notice of and opportunity to cure the condition of the Paver System and/or Landscaping, the Applicable Maintenance Party acknowledges 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 Applicable Maintenance Party and their respective successors and 2 assigns hereby forever waives 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 thirty (30) calendar days written notice, with a City standard material, such as cement or asphaltic concrete, and replace or remove all or any portion of the Landscaping. All replacement expenses incurred by the City shall be reimbursed by the Applicable Maintenance Party. Any expenses for restoration, replacement, and/or removal not reimbursed to the City shall constitute a lien against the Project. Developer and Association do not reserve any procedural rights to dispute the City's Notice to Terminate. 5. Remedies and Enforcement; City's Right to Self-Help. Subject to thirty (30) calendar days notice of and opportunity to cure the condition of the Paver System and/or Landscaping, the Applicable Maintenance Party acknowledges the power of the City to take any and all actions to require the Applicable Maintenance Party to maintain, restore, and/or repair the Paver System and/or the Landscaping according to reasonable minimum maintenance standards that are applicable to other such similar improvements within the City, including repair and/or replacement of the Paver System and/or Landscaping at Applicable Maintenance Party's expense, and/or trim, remove or replace Landscaping as may be necessary, should the Applicable Maintenance Party fail to perform its obligation to achieve such minimum maintenance standards. All such repair, maintenance or replacement expenses incurred by the City shall be reimbursed by Applicable Maintenance Party. Additionally, if following notice by the City, the Applicable Maintenance Party fails to cure or take actions required with respect to the maintenance, restoration, and repair of the Paver System and/or Landscaping, the City may take action and initiate self-help to correct the problem, in which event the Applicable Maintenance Party shall be required to reimburse the City for any expenses incurred by the City therefrom. 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 Developer and Association, as and to the extent permitted herein, 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 Developer and/or 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, as and to the extent provided herein, and Developer, 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 thirty (30) 3 calendar day written notice. Notwithstanding anything herein contained to the contrary, the City understands and agrees that from and after the creation of the Condominium, as evidenced by the recordation of the Declaration of Condominium in the Public Records of Miami-Dade County, Florida, Developer shall be fully released from any further obligations hereunder, and that all such obligations shall, upon the recordation of the Declaration of Condominium, be deemed assumed by the Association. 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 by the then owner of the fee- simple title to the land to be affected by such modification, amendment or release (provided, however, that if at that time, the Declaration of Condominium has been recorded, same shall be executed by the Association's Board in lieu of (and on behalf on 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 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 Developer. 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 Developer, until such time as the Declaration of Condominium has been recorded in the Public Records of Miami-Dade County, Florida, and thereafter, the Association, agree to hold harmless, indemnify and defend the City and its elected and appointed officials, and 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, attomeys' 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 4 County, whose fees and costs the Developer, until such time as the Declaration of Condominium has been recorded in the Public Records of Miami-Dade County, Florida, and thereafter, the 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 the Developer or the Association, as and to the extent of their respective liability hereunder, 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 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 Developer and City have duly executed this Declaration as of the day and year first above written. [Signature Page Follows] 5 Signed, Sealed and Delivered In Our Presence: ,()/ (, / "--- : ""At' ~~~~f~;iitcA-~L11 ..- , / I);~r . 1 DEVELOPER: TRG-Alaska I, Ltd., a Florida limited partnership By: TRG ALASKA I, Inc., a Florida corporation, as its General partner 6 Date STATE OF FLORIDA ) SS COUNTY OF MIAMI-DADE THE FOREGOING INSTRUMENT was acknowledged before me this ~/ day of 200ft!by, as of TRG ALASKA I, Inc., as General Partner of TRG-Alaska I, LTD., a Florida limited partn{rship. He/She is personally known to me or has produced as identification. -- ----~ --- STATE OF FLORIDA A^ "'l My Commission Expires: ) COUNTY OF MIAMI-DADE ) -0 (;_0' . THE FOREGOING INSTRUMENT was acknowledged before me this 11 day of~, 2006 by ])4 VI 01 De...rt1tU8s ~lM(Dr-' of the City of Miami Beach. He~ is personally known to me or has produced vI as identification. I ) SS My Commission Expires: NOTA PUBLIC State of Flo a Print Name: Li I r,'qN ~ t.XJ,Qmf .4Fr.~::~Jf;,.~ ULLIAN BEAUCHAMP ~..(~;i\~ MY COMMISSION It DD 530416 ~~~~; EXPIRES: April 29, 2010 'lff., r"l" Bonded Thru NolalY Public Underwriters 7 Exhibit A Legal Description of Master Parcel A Parcel of land located in Section 10, Township 54 South, Range 42 East, City of Miami Beach, Miami- Dade County, Florida, and being more particularly described as follows: Commence at the Northeast corner of Lot 3, Block 8, SOUTH BEACH PARK as recorded in Plat Book 6 at Page 77 of the Public Records of Miami-Dade County, Florida; Thence S8r38'57"W for 41.08 feet to a point on the Westerly line of a 100.00 foot right of way per Official Book 12566 page 2910 for Washington Avenue said point being the Point of Beginning of the hereinafter described parcel of land; Thence S10047'36"Walong said 100.00 foot right of way and it's Southwesterly extension for 239.73 feet being a non-tangent point on a circular curve concaved to the Northeast and whose radius point bears N11002'53"W; thence Westerly and Northwesterly along a 214.07 foot radius curve leading to the right through a central angle of 7r10'29" for an arc distance of 288.35 feet to a non-tangent point on a circular curve concaved to the Northeast and whose radius point bears N62037'08"E; thence Northwesterly along a 104.49 foot radius curve leading to the right through a central angle of 11054'26" for an arc distance of 21.72 feet to a point on the South line of said Lot 3; Thence S8r37'54"W along the south line of said Lot 3 for 165.46 feet; Thence N32013'24"W for 92.05 feet to a point on the North line of said Lot 3; Thence N8r38'57"E along said North line for 150.03 feet; Thence N02001'10"W along the Southerly extension of the Easterly right of way line of Jefferson Avenue as shown on the plat of "OCEAN BEACH ADDITION No. 3" Plat Book 2 Page 81 of said public records, for 132.00 feet to a point on the South right of way line of South Pointe Drive, also being the North line of said Section 10; Thence N8r38'57"E along said right of way for 384.43 feet to a point on the Northerly extension of said Westerly line of 100.00 foot right of way; Thence S10047'36"W along said Westerly line for 135.43 feet to the Point of Beginning. 8