HomeMy WebLinkAbout02/01-02/2006
City rnnunl_Inn
Susan Gottlieb, Mayor
A ~he City of
~ventura
Q
City MJUlyer
Eric M. Soroka, ICMA.CM
Zev Auerbach
Bob Diamond
Billy Joel
Harry Ho1zberg
Michael Stern
Luz Urbaez Weinberg
elf]' Cleric
Teresa M. Soroka, MMC
City Attmnev
Weiss Serota Helfman
Pastoriza Cole & Boniske
AGENDA
FEBRUARY 1, 2006 6 p.m.
Government Center
19200 WeBt Country Club Drive
Aventura,Florida 331SO
1. CALL TO ORDER\ROLL CALL
2. PLEDGE OF ALLEGIANCE
3. ZONING HEARING: QUASI-JUDICIAL PUBLIC HEARING - Please be advised that the following item on the
Commission's agenda is quasi-judicial in nature. If you wish to object or comment upon this item, please infonn the Mayor when she
requests public comments. An opportunity for persons to speak on this item will be made available after the applicant and staff have
made their presentations. All testimony, including public testimony and evidence, will be made Wlder oath or affirmation. Additionally,
each person who gives testimony may be subject to cross-examination. If you refuse either to be cross-examined or to be sworn, your
testimony will be given its due weight. The general public will not be permitted to cross-examine witnesses, but the public may request
the Commission to ask questions of staff or witnesses on their behalf. Persons representing organizations must present evidence of their
authority to speak for the organization. Further details of the quasi-judicial procedures may be obtained from the Cleric
RESOLUTION OF THE CITY COMMISSION OF THE CITY OF A VENTURA,
FLORIDA, CONCERNING MORATORIUM WAIVER APPLICATION OF
SHEFAOR/TARRAGON, LLLP, PERTAINING TO LINCOLN POINTE PROPERTY
CONSISTING OF 8.77 '" ACRES LOCATED AT 17900 NORTHEAST 31ST COURT IN
THE CITY OF AVENTURA; GRANTING APPLICATION FOR WAIVER OF
MORATORIUM ORDINANCE NUMBER 2005-07, SO AS TO PERMIT
REDEVELOPMENT OF THE PROPERTY TO A PROJECT CONSISTING OF A
TOTAL OF FOUR HUNDRED SIXTY (460) DWELLING UNITS, INCLUDING A
TWENTY EIGHT (28) STORY RESIDENTIAL TOWER WITH AN OVERALL
HEIGHT OF NOT GREATER THAN THREE HUNDRED FIFfEEN (315') FEET;
PROVIDING FOR AN EFFECTIVE DATE
4. ADJOURNMENT
SCHEDULE OF FUTURE MEETINGS/EVENTS
COMMISSION MEETING
FEBRUARY 7, 2006
6 P.M.
This meeting is open to the public. In accordance with the Americans with Disabilities Act of 1990, all persons who are disabled
and who need special accommodations to participate in this meeting because of that disability should contact the Office of the City
Clerk, 305-466-8901, not later than two days prior to such proceeding. One or more members of the City of Aventura Advisory
Boards may be in attendance. Anyone wishing to appeal any decision made by the Aventura City Commission with respect to any
matter considered at such meeting or hearing will need a record ofthe proceedings and, for such purpose, may need to ensure that a
verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be
based. Agenda items may be viewed at the Office of the City Clerk, City of Aventura Government Center, 19200 W. Country Club
Drive, Aventura, Florida, 33180. Anyone wishing to obtain a copy of any agenda item should contact the City Clerk at 305-466-
8901.
CITY OF AVENTURA
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
TO: City Commission
FROM: Eric M. Soroka, I
City Manager
BY: Joanne Carr, AIC
Planning Director
DATE: January 24,2006
SUBJECT: Application for Waiver under Section 3 of
Moratorium Ordinance No. 2005-07
Lincoln Pointe, 17900 NE 31 Court, Aventura
(01-WA-06)
February 1, 2006 City Commission Meeting Agenda Item 3
THE REQUEST
The applicant, Shefaor/Tarragon LLLC, is requesting a waiver under Section 3 of
Moratorium Ordinance No. 2005-07 to permit redevelopment of the property known as
Lincoln Pointe for a project consisting of a total of 460 dwelling units including a 28
story residential tower with an overall height of 315 feet. (See Exhibit #1 for Applicant's
Letter of Intent).
HISTORY OF THE PROJECT
The property is currently comprised of a three story, 285 rental residential unit
development built in 1991. The applicant submitted a site plan application on
December 15, 2004, revised on February 14, 2005 to permit redevelopment of the
property in accordance with the RMF4 zoning for a project consisting of 526 residential
units in a 40 story tower.
On June 7, 2005, the City Commission passed Ordinance No. 2005-07 which imposed
a moratorium on the issuance of development orders and development permits for
residential and commercial properties within the City, located east of Biscayne
Boulevard. This ordinance was passed to ensure that no development approvals or
permits were issued while the City Commission was preparing the Evaluation and
Appraisal Report (EAR) for the City's Comprehensive Plan and any resulting
amendments to the Land Development Regulations.
The site plan application made in December of 2004, revised in February of 2005,
was under review at the time of the moratorium ordinance and therefore affected by the
ordinance. The result is that the applicant has been temporarily unable to redevelop
the property from its current composition of apartment buildings into a multi family
condominium and townhouse community as proposed in its site plan application.
The moratorium ordinance provides that an applicant affected by the moratorium may
either file an application to demonstrate vested rights or file an application for waiver
from the moratorium for approval of a specific property based on criteria set out in the
ordinance.
Under the vested rights provisions of the moratorium ordinance, the applicant sought to
demonstrate that it possessed vested rights to redevelop the property during the
pendency of the moratorium. The application for vested rights was denied by the City
Commission by Resolution No. 2005-48.
MORATORIUM WAIVER
The applicant has now made application under the waiver provisions of the moratorium
ordinance which provides that the City Commission may, after a public hearing held
pursuant to City Code, grant a waiver to the moratorium and authorize issuance of a
development order for a specific building, where the City Commission determines that
based upon substantial competent evidence, the following criteria are satisfied:
1. That the specific use or activity requested will not detrimentally affect the
preparation and implementation of the Comprehensive Plan and LDR
amendments;
2. That the specific use or activity will be compatible with surrounding land uses;
and
3. That the specific use or activity will not impair the public health, safety or welfare.
The application made under the waiver provision of Ordinance No. 2005-07 has been
revised from the original project containing 526 units in a 40 story building to 460 units,
44 of which will be townhomes, in a 28 story, 315 foot tall building.
All documents required by the application form have been submitted. The application
has been noticed in accordance with the City Code and may now be considered by the
City Commission as to compliance with the waiver criteria. In the event that the
application is granted by the Commission, the attached proposed Resolution provides
for the redevelopment of the property to be subject to the conditions imposed on the
property pursuant to the Settlement Agreement of January 19, 2006 between the
applicant and the City.
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fY.HtBiT #/
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
A PARTNERSHIP OF PROFESSIONAL ASSOCIATIONS
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500. MIAMI, FLORIDA 33131-5340
TELEPHONE: (305) 374-7580 . FAX: (305) 374-7593
E-MAIL: INFOOBIl..ZIN.COM . WWW.BILZIN.COM
January 23, 2006
I?tet//lto
COIif, J4N I J
'MUN/i!' 2000
DE/lELOPMENi
Joanne Carr, Planning Director
City of A ventura
19200 West Country Club Drive
4th Floor
A ventura, Florida 33180
Re: LETTER OF INTENT
Application of Shefaorffarral!on LLLP for Waiver from Moratorium
Ordinance Pursuant to Section 3 of Ordinance No. 2005-07
Dear Ms. Carr:
This firm represents Shefaorrrarragon, LLLP as the owner of the property located a1 17900
NE 31st Court, in the City of A ventura and generally known as Lincoln Pointe. This letter
constitutes the Letter of Intent accompanying "Public Hearing Application Pursuant to Section 3,
Ordinance No. 2005-[07]" by Shafaor/Tarragon, LLLP wlllch seeks a waiver from the moratorium
established by Ordinance No. 2005-07.
The proposed Lincoln Pointe Development ("Redevelopment") consists of 460 residential
units including a minimIUTI of 44 townhomes for a density of 52.45 units per acre. It will include a
residential tower of up to 28 stories. Total height, including equipment, will no1 exceed 315 feet.
Willie 1he proposed redevelopment will provide additional housing, and enhanced quality of life, i1
does not maximize the development of the property under the present RMF4 zoning, to which the
applicant believes it is entitled by virtue of the doctrines of vested rights and estoppel. I
The present zoning on the property, wlllch permits 60 units per acre, would allow 526 units
in a building up to 400 feet in height plus equipment height. The Redevelopmen1 would result in a
reduction of 66 units and approximately 100 feel in height. The proposed amendments to the Land
Development Regulations promulgated in connection with the pending moratorilUTI ("LDR
Amendments") would allow 45 units per acre, 25 stories and 250 feet in height (plus equipment) as '
a matter of right. Upon conditional use approval, the LDR Amendments would allow 60 dwelling
units per acre and 30 stories or 300 feet, plus equipment. Such approval would 1hus allow 526'
units, the same nlUTIber presen1ly allowed under RMF4 zoning, and 300 feet in height plus,
equipment height. This would equal or exceed the Redevelopment. As compared to the
Redevelopment, the present zoning would thus allow over 14% more density and over 30% more
height. AsslUTIing conditional use approval under the LDR Amendments, those regulations would
similarly allow over 14% more density than the Redevelopment, 2 additional stories, and an equal
or greater overall height. '
Because the Redevelopmen1 constitutes a considerable reduction in density and height from
I The Applicant reserves, and does not waive, the right to assert any and all rights in any and all
litigation and other proceedings, in the event that the waiver is not finally approved.
BII.ZIN SUMBERG BAENA PRIC.~ & AXEL.ROD L.L.P
Joanne Carr, Planning Director
January 23, 2006
Page 2
that to which the developer believes it is entitled under the presen1 zoning, and because the proposal
does not exceed what could be approved under the proposed regula1ion amendments, the
Redevelopment will not detrimentally affec1 preparation and implementation of the regulations
contemplated by the moratorium ordinance. To the contrary, when considered in its totality, the
Redevelopment is in accord with the goals of the moratorium and the proposed regulation
amendments.
The moratorium is related 10 the preparation of an evaluation and appraisal report (the
"EAR") for the City's comprehensive plan, to be implemented through land development
regulations. "[Major] issues" to be addressed during the EAR process include redevelopment,
housing, emergency management, transportation, intergovernmental coordination and quality of
life. "[R]emedial measures" to be focused upon during 1he moratorium include traffic concurrency,
redevelopmen1 guidelines, building height, and emergency management.
The present developmen1 on the property consists of 285 units of older rental apartments,
whereas the con1emplated redevelopment will consist of 460 new units under condominium
ownership. The Redevelopment will result in the updating and modernization of housing,
consist~n1 with the presen1 building code requirements, including larger unit sizes, thus contributing
to quality of life While the increase in total units above those presently in existence will support
the goal of providing housing, the reduction from the maximum allowed by the present zoning, and
potentially under the LDR Amendments, will contribute to the goals of reducing traffic and easing
attendan1 emergency evacua1ion issues. The increase in height, with the vas1ly improved views,
will enhance quality of life, as will the inclusion of substantially more green space than in the
previously submitted site plan. The reduction from the height allowed by the present zoning will
address the issue of building height set forth in the moratorium ordinance and will assure
compatibility in that the height of the tower will be no greater than the highest structure in the
vicinity, including Williams Island.. The foregoing aspects of the development 1herefore are
supportive of the issues of redevelopment, housing, quality of life, building height, compatibility
and emergency management addressed by the ordinance.
In connection with the project the developer has committed to make a contribution of
$150,000, which, inter alia, will support enhancemen1 of transportation facilities. Additionally, the
developer has addressed the City's desire for a widening and improvement of the off-site entry drive
to the north of the property line by committing to make a contribu1ion of$IOO,OOO to be used by the
City in the acquisition of the rights necessary to effect these improvements. Altematively, the City
may use these funds for the media center at the A ventura Charter School. The developer has also
committed to fund the aforementioned improvements (estimated at $350,000) in the event that thetCity goes forward with this project. These contributions directly address the issues of
transportation and emergency management, in addition to positively affecting the goals of
redevelopment, housing, and quality of life.
MIAMI 970048.1 7592420873
BIL.ZIN SUM6ERG BAENA PRIC~ & AXEL.ROO L.L.P
Joanne Carr, Planning Director
January 23,2006
Page 3
In conclusion, 1he Redevelopment will be compatible with surrounding land uses and will
not impair the public health, safety or welfare. To the contrary, the redevelopment will constitute
an enhancemen1 in these respects. The reques1ed waiver from the moratorium ordinance meets the
waiver requirements of the moratorium ordinance for these reasons and because it will not
detrimentally affect the prepara1ion and implementation of the Growth Management Regulations
contemplated by Ordinance 2005-07, but will support the City's objectives in this regard.
We respec1fully reques1 approval of the moratorium waiver application.
Very truly yours,
..-----.-:',
<~. \...~-
/
Stanley B. . e
,
MIAMI 970048.1 7592420873
RESOLUTION NO. 2006-
RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF A VENTURA, FLORIDA, CONCERNING
MORATORIUM WAIVER APPLICATION OF
SHEFAOR/TARRAGON, LLLP, PERTAINING TO
LINCOLN POINTE PROPERTY CONSISTING OF 8.77 :l:
ACRES LOCATED AT 17900 NORTHEAST 31ST COURT
IN THE CITY OF AVENTURA; GRANTING
APPLICATION FOR WAIVER OF MORATORIUM
ORDINANCE NUMBER 2005-07, SO AS TO PERMIT
REDEVELOPMENT OF THE PROPERTY TO A PROJECT
CONSISTING OF A TOTAL OF FOUR HUNDRED SIXTY
(460) DWELLING UNITS, INCLUDING A TWENTY
EIGHT (28) STORY RESIDENTIAL TOWER WITH AN
OVERALL HEIGHT OF NOT GREATER THAN THREE
HUNDRED FIFTEEN (315') FEET; PROVIDING FOR AN
EFFECTIVE DATE
WHEREAS, pursuant Section 3 of Ordinance No. 2005-07 (the "Moratorium
Ordinance") Shefaor/Tarragon, LLLP (the "Owner" or "Applicant") has applied for a waiver
of the Moratorium Ordinance (the "Waiver") in order to permit redevelopment of Lincoln
Pointe (the "Property"), approximately 8.77 acres located at 17900 N.E. 31st Court, Aventura;
and
WHEREAS, following proper notice, the City Commission has held a public hearing
on the Waiver Application, as provided by the Moratorium Ordinance and the City's Land
Development Regulations; and
WHEREAS, the City Commission hereby finds that the grant of the Waiver is
consistent with the Comprehensive Plan of the City of A ventura; and
WHEREAS, the City Commission, in accordance with the procedures and criteria
provided by Section 3 "Waivers" of the Moratorium Ordinance, hereby finds and determines
that the criteria of Section 3 of the Moratorium Ordinance have been met by the Applicant, to
the extent that the Waiver is granted herein.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS:
Section 1. Recitals AdoDted. That each of the above stated recitals is hereby
adopted and confirmed.
Section 2. Waiver Granted. That pursuant to Section 3 of the Moratorium
Ordinance, the application for Waiver is hereby granted for the Property which is described on
Exhibit "A" attached hereto, subject to the condition that the redevelopment shall be
accomplished in accordance with the obligations and conditions which have been imposed upon
Applicant, in the event of this Waiver being granted, pursuant to the Applicant-City Settlement
Agreement of January 19,2006.
Section 3. ImDlementation. That the City Manager is hereby authorized to cause the
issuance of permits in accordance with the approvals and conditions herein provided, and
pursuant to the City's Land Development Regulations in effect and applicable as of the date of
this resolution without the application of the moratorium, and to indicate such approvals and
conditions upon the records of the City, and to take any action which is necessary to implement
this Resolution.
Section 4. Effective Date. That this Resolution shall become effective immediately
upon adoption hereof.
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The foregoing Resolution was offered by Commissioner
, who
moved its adoption. The motion was seconded by Commissioner
, and
upon being put to a vote, the vote was as follows:
Commissioner Bob Diamond
Commissioner Harry Holzberg
Commissioner Zev Auerbach
Commissioner Michael Stern
Commissioner Luz Urbilez Weinberg
Vice Mayor Billy Joel
Mayor Susan Gottlieb
PASSED AND ADOPTED this 1st day of February, 2006.
Susan Gottlieb, Mayor
Attest:
Teresa M. Soroka, MMC
City Clerk
Approved as to Form and Legal Sufficiency:
City Attorney
Filed in the Office of the City Clerk this _ day of February 2006.
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EXHIBIT A
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LEGAL DESCRIPTION
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Tract D of ADMIRAL'S PORT SECTION ONE, according to the plat thereof, recorded in
Plat Book 113,Page 51, Public Records of Miami-Dade County, Florida.
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SETTLEMENT AGREEMENT
SHEFAORfIARRAGON, LLLP, a Florida Limited Liability Limited Partnership (the
"Developer") with joinder by A VENTURA TARRAGON GP, LLC, a Florida Limited Liability
Company, AVENTURA TARRAGON LP, LLC, a Florida Limited Liability Company,
SHEFAOR BH, LLC, a Florida Limited Liability Company, TARRAGON SOUTH
DEVELOPMENT CORP., a Nevada corporation, (collectively and individually referred to
herein as the "Joining Parties"), and the CITY OF A VENTURA, FLORIDA, a Florida municipal
corporation (lhe "City"), hereby enter in10 this Settlement Agreemen1 (the "Agreement"),
effective as of January 19,2006, as follows:
RECITALS
(A)
(B) below.
1.
Developer is the owner of the Property which is described in paragraph
2. City is a duly organized Florida municipal corporation.
3. The Joining Parties are each an entity which is listed and included herein
as a signatory to 1his Agreement for the purpose of binding that entity to the provisions of
paragraph 13 herein.
(B) Developer is the current fee simple owner of title in and to that certain 8.77 acre:!:
parcel located at 17900 Northeast 3ls1 Court, in the City of Aventura, Florida, which parcel is
currently developed as an 285 unit apartment complex built in 1991, commonly referred to as
"Lincoln Pointe", and is described on Exhibit "A", a copy of which is attached hereto and by this
reference is made a part hereof (the "Property");
(C) The City has zoning jurisdiction over lands in the City, including the Property;
(D) The Property is zoned RMF4 under Section 31-143 of the City's Land
Development Regulations (the "LDR");
(E) Pursuan1 10 Ordinance Number 2005-07 (the "Moratorium Ordinance") as
adopted by the City Commission on June 7, 2005, the Developer has been temporarily unable to
redevelop the Property from its current composition of apartmen1 buildings into a multi-family
condominium and townhouse community pursuant to the existing RMF4 zoning;
(F) Pursuant to the Moratorium Ordinance, Developer sought to demonstrate that it
possessed the vested rights to redevelop the Property during the pendency of the moratorium
pursuant to the vested rights provisions of the Moratorium Ordinance;
(G) Pursuant to Resolution Number 2005-48, the City Commission, after a public
hearing, denied the vested righ1s application of Developer;
(H) On October 7, 2005, Developer filed a Petition for Writ of Certiorari seeking to
challenge Resolution Number 2005-48 pursuant to Certiorari proceedings styled as
Shefaor/Tarragon, LLLP vs. City of Aventura, Florida, Case No. 05-392-AP, in the Appellate
Division of the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County,
Florida (the "Appellate Litigation"). Further, pursuant to action filed in Circuit Court of the
Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, Case No. 05-20125 CA 06,
styled as ShefaorlTarragon, LLLP vs. City of Aventura, et al., (the "Original Litigation")
Developer filed a complaint seeking to overturn Resolution No. 2005-48, and sought to establish
its vested rights to redevelopment of the property with a building consisting of five hundred
twenty six (526) units and forty (40) slories in height (collectively, the "Litigation");
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(I) The Appellate Litigation has been stayed by the Court pending resolution of the
Original Litigation;
(J) The City has responded to the complaint in the Original Litigation by seeking its
dismissal;
(K) The Developer and City believe that the Litigation, in all likelihood, would be
highly contested, fact intensive and costly;
(L) In an effort to reach an amicable resolution of the Litigation, Developer and the
City have participated in settlement negotiations in an effort to establish a framework for the
potential resolution of any and all claims and defenses raised or which migh1 be raised in the
Litigation;
(M) The signatories to this Agreement represent and warrant to each other that they
have the full power and authority of their principals to execute and perform their respective
obligations under this Agreement and, where appropriate, have obtained the requisite authority to
enter into this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE
GOOD AND VALUABLE CONSIDERATION WHICH EACH PARTY
ACKNOWLEDGES TO HAVE BEEN RECEIVED FROM THE OTHER, THE CITY
AND DEVELOPER, WITH JOINDER BY EACH OF THE ENTITIES DESCRIBED AS
THE JOINING PARTIES IN PARAGRAPHS (A)(3) ABOVE, HEREBY AGREE AS
FOLLOWS:
TERMS OF SETTLEMENT
1. Each of the above. stated Recitals is hereby adopted and confirmed.
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2.
(a)
Developer shall, in accordance with Section 3 "Waivers" of the
Moratorium Ordinance, file a waiver application (the "Waiver Application") with the City, in
order to enable the Developer to be authorized to implement the redevelopment described in
paragraphs 7 and 8 herein, subject to the approval of 1he Waiver Application by City
Commission.
(b) Developer recognizes that in order for the Waiver Application to be
granted, subs1antial competent evidence must be presented to the City Commission which
demonstrates that the specific use or activity requested by the Waiver Application will not
detrimentally affect the preparation and implementation of the Growth Management Regulations
(as defined in the Moratorium Ordinance), will be compatible with surrounding land uses, and
will not impair the public health, safety or welfare.
3. The parties recognize thaI the consideration of the Waiver Application for a
waiver of the provisions of the temporary moratorium, as established by the Moratorium
Ordinance, constitutes a quasi judicial action and decision of the City Commission, and 1hat
accordingly, the Ci1y Commission does not hereby commit itself to approve or grant the Waiver
Application, but instead simply agrees to process and consider said Waiver Application in
accordance with the applicable requirements of law as provided by the City Moratorium
Ordinance criteria pertaining to the grant or denial of a Waiver Application. The decision to
grant or deny the Waiver Application shall be based solely upon the substantial competent
evidence presented during the course of the quasi judicial proceedings in accordance with
Section 34-31 of the City Code.
4. (a) In the event that the Waiver Application is granted by the City
Commission, the City shall provide for site plan and building permit plan review by the City on
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an expedited basis at no additional supplemental charge to Developer. This shall not impair or
waive the normal site plan review fees and building permit plan review and inspection fees, but
shall solely waive the special charge which is generally imposed for expedited review by the
City. Further, in the event that the Waiver Application is granted, City commits itself to
expeditiously process, consider, and issue decisions regarding any necessary additional City
approvals, in accordance with law.
(b) Further, in the event that the Waiver Application is approved by the City
Commission, all requests for, and issuance of, City development approvals shall be in
accordance with the City's Land Development Regulations in effect at the time of the filing of
the Waiver Application.
(c) In the event that the Waiver Application is approved by the City
Commission, it is recognized that the preliminary si1e plan submitted in connection with the
Waiver Application is necessarily conceptual, subject to additional detail being provided by
Developer and to Developer's right to make revisions, and that the Waiver Application site plan
reflects development that, if the Waiver Application is granted, is permissible in accordance with
the City's land development regulations which will be applicable as specified in this Agreement.
Accordingly, if the Waiver Application is granted, the City agrees that in reviewing subsequent
revisions to the preliminary site plan and the details thereof, the Developer shall be allowed
reasonable flexibility within the parameters of the applicable land development regulations
which are specified herein, and that the City shall process all applications which are aimed at
finalizing the site plan in an expedited manner without supplemental charges for expedited
review. However, nothing in this paragraph (c) shall be construed in any manner which enables
5
Developer to exceed the building height and number of dwelling units which are expressly stated
in this Agreement.
5. Upon final approval, if any, of the Waiver Application by the City Commission,
so that the redevelopment of the Property may occur in accordance with the provisions described
herein, the ordinances of the City, and applicable law, and following the expiration of the time
for an appeal from the grant of the Waiver Application by any interested party (or, if an appeal or
other contest is pursued, upon the final disposition thereof), the Developer and the City shall file
a joint motion for a further stay of the Appellate Litigation pending the issuance, in accordance
wi1h law, of a City building permit for the foundation of the Tower. Upon the granting of the
further stay, the Developer shall file a Notice of Dismissal of the Original Litigation without
prejudice. Except as specified in paragraph 12, each party agrees to bear its own attorney's fees
and costs. Upon issuance of the City building permit for the foundation of the Tower, the
Developer shall file a Notice of Dismissal of the Appellate Litigation, with prejudice. Each party
agrees to bear its own attorney's fees and costs, except as specified in paragraph 12. The term
"appeal" as used in this Agreement includes certiorari and other appella1e judicial review.
6. In the event that the Waiver Application is not granted, or in the event that the
Waiver Application is granted but does not become final because of adverse court action, the
parties shall be permitted to pursue any rights and remedies they possess, unless otherwise
specified herein.
7. The redevelopment of Lincoln Pointe (the "Development") to be constructed shall
not exceed four hundred sixty (460) dwelling units of which number a total of at least forty four
(44) shall be townhouse units. None of the townhouse units shall be located in the four hundred
sixteen (416) unit Tower unless directly accessible from an exterior, non-lobby of Tower
6
entrance. Townhouses also may be situated abutting the outside of the base or lower levels of
the Tower (and be directly accessible from an exterior, non-lobby of Tower entrance) or as an
adjunct of the parking garage, but not as free-standing buildings. All of the aforemen1ioned
townhouse units, whether or not within the Tower, may each have up to a three level floor plan.
8. The single tower building (the "Tower") to be constructed at the Development
shall not exceed a height of twenty-eight (28) stories, but may reach an overall height of not
greater than three hundred fifteen (315') feet including all habitable spaces, mechanical and other
building equipment, apparatus and non-habitable spaces or architectural features, so as to achieve
a height which is compatible with development in the vicini1y. It is recognized that the twenty
eighth (28th) slory of the Tower may consist of penthouse units which may each have a two level
floor plan. Further, it is recognized that other stories of the Tower may have units which have a
two level floor plan.
9. In the event that the Waiver Application is granted and becomes final and not
subject to appeal or further appellate review, Developer agrees that it shall not seek to obtain any
conditional use approval under the Ci1y's presently pending amendments to the City's Land
Development Regulations, in the event of the adop1ion of said pending amendments to the Land
Development Regulations, for the purpose of establishing a height or density which exceeds the
height and density which is expressly set forth in this Agreement.
10. (a) In order to facilitate the acquisition of the necessary rights, right of way, or land
from the owners of that certain one-half (1/2) acre"' of property (the "Easement Area"), as
described on Exhibit "B", a copy of which is attached hereto and incorporated herein, the City
shall diligently utilize its good faith reasonable efforts to obtain the right to enable the Easement
Area to be converted to a public road and to be improved as described in paragraph II below.
7
(b) This obligation of the City, as described in paragraph IO(a) above, shall be
subject to the condition precedent that the Developer first deposits with the City, pursuant to an
escrow agreement which is approved by the City Attorney and Developer's Attorney, the sum of
One Hundred Thousand ($100,000.00) Dollars with a mutually agreeable local escrow agent, to
be utilized by the City for obtaining any necessary City interest in the Easement Area.
(c) Developer shall, at no charge to City, convey any of its interests in the Easement
Area to City to the extent necessary to establish a public road once all other necessary interests
are obtained by City. The instrument of conveyance used by Developer may provide for a
reversion of Developer's interest if the Improvements described in paragraph 11 are not
implemented and completed by City in accordance with this Agreement.
(d) In the event that it is not necessary for the City to utilize all of these escrow
funds for such purpose, City shall utilize the escrow funds for the benefit of the Media Center at
City's Charter School.
11. (a) Developer shall diligently pursue, and shall use its reasonable good faith
efforts to obtain, any and all necessary governmental approvals (the "Approvals"), including but
not limited to the approval of the Miami-Dade County DERM, for the upgrade and improvement
(the "Improvements") to the Easement Area so as to facilitate the service of 1he Easement Area
as the access road for the Development and for other existing developments in the vicinity. The
Improvements shall include widening of the road surface, installation of lighting, upgrade of
drainage, installation of a sidewalk and safety barriers as may be required, any necessary
modification of the DERM wetland conservation easement, all as described in the preliminary
plan (the "Plan"), a copy of which is at1ached hereto as Exhibit "C" and incorporated herein,
subject to the City Manager's and DERM's approval of the final Plan. The Approvals shall be
8
sought by Developer for a period of no less than two hundred seventy (270) days following the
date that the Waiver approval becomes final and is no longer subject to appeal or further
appellate review. The City shall cooperate with the efforts of Developer in obtaining the
necessary Approvals.
(b) If the Easement Area is obtained by City and the Approvals are obtained by
Developer, the Improvements shall be implemented at the sole reasonable cost and expense of
Developer by City's construction of the Improvements prior to the issuance of a Final Certificate
of Occupancy for the Development. Alternatively, by mutual written agreement, Developer and
City, acting through the City Manager, may provide for the Improvements to be constructed
directly by Developer through Developer's contractors, pursuant to the final Plan. Developer
shall be responsible to provide, at its sole cost and expense, all design, planning, surveying and
engineering work for the Improvements. In the event that the Waiver Application is granted, the
City shall not take any action concerning the acquisition of the Easement Area or the
implementation of the Improvements of the Easement Area which would cause the authorized
Development of the Property not to comply with all applicable City codes, rules or regulations.
(c) In order to secure its commitments hereunder concerning the Improvements,
Developer shall provide to City a letter of credit for the benefit of the City in an amount which is
not less than Three Hundred Fifty Thousand ($350,000.00) Dollars. Developer shall be
responsible for any reasonable additional cost which is necessary to implement the
Improvements in accordance with the final Plan. In the event that the reasonable costs of the
Improvements exceed Three Hundred Fifty Thousand ($350,000.00) Dollars, the Developer shall
increase the Letter of Credit to include said costs. Upon completion of the Improvements and
the fulfillment of Developer's obligation to fund the Improvements or in the event, consistent
9
with this Agreement, the Improvements are not constructed, the Letter of Credit shall terminate,
and that fact shall not interfere with Developer's ability to obtain all Development approvals.
(d) In the event that the Approvals are not obtained by Developer, the City shall, at
the City Manager's discretion, still be authorized to draw upon the letter of credit in an amount
not to exceed City's reasonable cost in accomplishing the Improvements, up to the full Three
Hundred Fifty Thousand ($350,000.00) Dollar limit of the letter of credit upon City obtaining the
Approvals within two (2) years after the grant of the Waiver or after the Waiver becomes final
and no longer subject to any appeal or appellate review proceedings.
(e) The form of the letter of credit shall be subject to approval by the City
Attorney and Developer's attorney and shall have a term of not less than three (3) years or for
three (3) years with renewals. The letter of credit shall be provided by Developer to City as a
condition precedent to the issuance of any City building permit for 1he Development.
12. As a condition precedent to the issuance of any building permit for the
Development, Developer shall contribute an additional sum of One Hundred Fifty Thousand
($150,000.00) Dollars to the City. This contribution shall be utilized by the City for the purpose
of City transit system improvements (including enhancement of shuttle bus services or off-set of
cost of operation of the shuttle bus service of the City), and reimbursement of the City's legal
fees related to the Litigation.
13. Effective upon issuance of a City building permit for the foundation ofthe Tower,
Developer and each of the Joining Parties shall execute and deliver to City releases waiving and
relinquishing any and all causes of action or claims against the City and City's officers (whether
elected or appointed), agents, employees and Commissioners, which in any way arises out of or
pertains to the Litigation or to the moratorium, or to the zoning, land use or other development
10
status of the Property. Further, in the event that the Original Litigation is dismissed as provided
in paragraph 5, but that Developer, notwithstanding City's compliance with City's obligations
pursuant to this Agreement, fails to diligently apply for or determines not to apply for a City
building permit for the foundation of the Tower on or before a date which is one hundred eighty
(180) days after the dismissal of the Original Litigation, because of a change of Developer's
plans, a change of circumstances or otherwise, (Developer not being obligated by this Agreement
to apply for a building permit for the foundation of the Tower within any specific time),
Developer and each of the Joining Parties shall still be obligated to execute and deliver to City
the releases described above upon written demand by the City, and Developer shall a1 that time
provide for dismissal of the Appellate Litigation, with prejudice. Each party agrees to bear its
own attorney's fees and costs related to such Appellate Litigation, except as specified in
paragraph 12. However, the City Manager may approve an extension of the one hundred eighty
(180) day time period which is stated above in this paragraph 13, upon demonstration of good
cause. The ex1ension approval shall not be unreasonably withheld by the City Manager. The
form of the releases shall be drafted by the City Attorney, consistent with this Agreement, and
shall be subject to the review and approval of the Developer's attorney. The Developer's
at10rney's review and approval of the releases shall not be unreasonably withheld or delayed.
Notwithstanding any other provision of this Agreement, the releases shall not pertain to any
rights under this Agreement or to matters occurring after the effective date hereof.
14. The City recognizes that at the quasi judicial hearing on the Waiver Application,
it shall not generally be permissible for the City to seek to obtain additional concessions from
Developer, beyond those set forth in this Agreement, but that instead, at such hearing, the City
Commission shall simply determine, in accordance with the criteria of Section 3 of the
11
Moratorium Ordinance, whether to grant or deny the Waiver Application. This shall not be
construed in any manner which is contrary to paragraphs (2) and (3) of this Agreement or in any
manner which is prohibited by law.
15. This Agreemen1 is a product of settlement negotiations. No evidence of the
actions proposed herein, including any presentations in any public forum related to the approval
and implementation of these terms and conditions, shall be admissible by either party on the
merits of the claims in the Litigation. However, this shall not prevent or preclude any of the
parties herein from utilizing this Agreement and the record of the public hearing conducted on
the Waiver Application envisioned herein in any challenge to or defense of the decision made or
actions taken upon said Waiver Application by the City Commission or claim or defense
pertaining thereto, or in providing the Courts with a slatus report or explanation of delays in the
Litigation, or in addressing the issue of exhaustion of administrative remedies. The intent of this
paragraph is to avoid the use of this Agreement as an admission against the interest of any party
hereto and not to foreclose any claim or defense that may arise subsequent to the effective date
of this Agreement.
16.
(a)
This Agreement, and any of the specific items, covenants, and conditions
contained herein, may not be waived, changed, al1ered or modified except by an instrument in
writing signed by all the parties against whom enforcement of such change is sought. The City
Manager shall be authorized 10 act for the City in the implementation of subparagraphs (a) and
(b) of this paragraph 16 upon approval of the City Attorney as to the form and legal sufficiency
of such action by the City Manager.
(b) The parties recognize that by their nature certain paragraphs of this
Agreement shall only be applicable ifthe Waiver Application is granted, becomes final and is no
12
longer subject to appellate litigation or appellate review. The parties may, by supplemental
agreement, enumerate those provisions.
17. The parties agree that this Agreement shall be rendered binding only upon
execution by all ofthe parties hereto.
18. The "Effective Date" of this Agreemen1 shall be January 19, 2006. The term of
this Agreement commences upon the effective date and ends upon completion of the
redevelopment provided for herein, unless otherwise stated.
19. Wherever possible, each provision of this Agreement shall be interpreted in such
manner as to be effec1ive and valid under applicable law, but if any provision of this Agreement
shall be prohibited or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Agreement, provided that the material purposes of this
Agreement can be determined and effectuated. This severability provision shall not operate to
impair, limit or affec1 any specific provisions of this Agreemen1 that are expressly inter.
dependent.
20. This Agreement shall be binding on the parties and their successors or assigns.
The rights, benefits and detriments inuring to Developer under 1his Agreement shall be freely
assignable at the sole election of Developer, and shall run with the Property.
21 This Agreement shall in all respects be construed in accordance with the laws of
the State of Florida applicable to contracts made and to be performed wholly within the State of
Florida. Venue for any litigation hereunder shall be in the Circuit Court of the Eleventh Judicial
Circuit in and for Miami.Dade County, Florida.
13
~. -
22. This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same Agreement. Delivery
of an executed counterpart of a signature page to this Agreement by facsimile shall be effective
as delivery of a manually executed counterpart of this Agreement.
23. This Agreement shall be deemed to have been jointly drafted by the parties, and in
construing and interpreting this Agreement, no provision shall be construed and interpreted for or
against any of the parties because such provision or any other provision of the Agreement as a
whole is purportedly prepared or requested by such party.
24. In the event that the City Commission, in accordance with the City Moratorium
Ordinance criteria, grants the Waiver Application, the parties hereto shall cooperate and work
together to defend the action of the City Commission in the event of any challenge by any other
person, firm or en1ity. Further, in such event, during the course of any such challenge to 1he City
Commission decision, Developer and the Joining Parties shall take no action to further pursue
the Litigation identified in Recitals paragraph (H) above, prior to the final adjudication of any
such challenge, unless compelled to do so by court order.
25. (a) Time is of the essence of this Agreement.
(b) Developer shall file the Waiver Application with City on or before
Monday, January 23,2006.
(c) City agrees to hold a quasi judicial hearing and reach a decision upon the
Waiver Application no later than Midnight, Thursday, February 2, 2006, and to issue a written
decision 10 be rendered no la1er than on Friday, February 3, 2006.
14
STIPULATED AND AGREED BY:
SHEFAORlTARRAGON, LLLP,
a Florida limited liabili1y limited
partnership
By: Aventura Tarragon GP, LLC, a
Florida limited liability company,
its sole general partner
By: Tarragon South Development
Corp., a Nevada Corporation,
its sole member
By:
Name:
Title:
A VENTURA TARRAGON GP, LLC,
a Florida limited liability company
By: Tarragon South Development Corp.
By:
Print:
Title:
A VENTURA TARRAGON LP, LLC,
a Florida limited liability company
By: Tarragon South Development Corp.
By:
Print:
Title:
CITY OF A VENTURA, FLORIDA,
a Florida municipal corporation
By:
Eric M. Soroka, City Manager
ATTEST:
By:
City Clerk
Pursuant to Resolution No. 2006-07
Approved as to form and legal sufficiency
for the use and reliance of the City of
Aventura only:
By:
City Attorney
15
SHEFAOR BH, LLC,
a Florida limited liability company
By: Plainvest, Inc., a Florida corporation
co-manager
By:
Print:
Title:
By: Estate Field Group, Inc., a Florida
corporation, co-manager
By:
Print:
Title:
TARRAGON SOUTH DEVELOPMENT CORP.
By:
Print:
Title:
F:/328.058/Lincoln Pointe Settlement Documents/Final Version of Settlement Agreement 1.25.06
16
APPLICANT REPRESENTATIVE AFFIDAVIT
Pursuant to Section 31-71(b)(2)(i) of the CITY 01 Aventura Land Development Code, this Applicant Representative Affidavit is hereby made and
submitted. The undersigned authonzed representative of the individual or enlily applying for the Development Permit, which is identified in the accompanying
application, and the owner of the property subject to the application (if different) hereby lists and identifies all persons representing the individual or entity
applying for Ihe Development Permit in connection with the application, as follows:
Name
Re/ationship (i.e. Anomeys, Architects. Landscape
Architects, Engineers, Lobbyists. Etc.)
.R.T. Brinkley. 11. Developer
Dan Fortin. Jr.. EnQineer
JaCQues Claudio Stivelman. Developer
James P. Kelley. Developer
Gilbert Benhamou. Developer
Clifford Schulman. ESQuire/Attorney
Stanley B. Price. ESQuire/Attorney
James R. Helman. Developer
Robert L. Krawcheck. ESQuire/Attorney
Charles H. Benson. Architect
Brian S. Adler. ESQuire/Attorney
Marcv Kammerman. Developer
Carl Skiles. EnQineer
(Attach Additional Sheets II Necessary)
NOTICE: ANY STATEMENT OR REPRESENTATION MADE BY ANY PERSON LISTED ON THE APPLICANT REPRESENTATIVE AFFIDAYIT
SHALL BE BINDING UPON THE INDIVIDUAL OR ENTITY APPLYING FOR THE DEVELOPMENT PERMIT AND THE OWNER OF
THE SUBJECT PROPERTY. APPLICANTS AND AFFIANTS ARE ADVISED TO TIMELY SUPPLEMENT THIS AFFIDAVIT
PURSUANT TO SEC. 31.71(B)(2)(1V) OF THE CITY'S LAND DEVELOPMENT REGULATtONS IN THE CITY CODE, IN THE EVENT
THAT PRIOR TO CONSIDERATION OF THE APPLICATION BY THE CITY BOARD OR COMMISSION, THE INFORMATION
PROYIDED IN THE AFFIDAVIT BECOMES INCORRECT OR INCOMPLETE.
WITNESS MY HAND THIS :l3olDAYOF T,L//VI/,4/i! Y .2006.
I
AUTHORIZED REPRESENTATIVE OF APPLICANT: OWNER
SHEFAORITARRAGON, LLLP, a Florida limited
liability limited partnership
By: Aventura Tarragon GP, LLC,
its General Partner
By: Tarragon South Development
C p., its Ma ging Member
By:
Marcy am rman
Executive Vice President
12
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavit is made pursuant 10 Section 31-71(b)(2)(ii} of Ihe City of Aventura Land Development Code. The undersigned Affiant hereby discloses that:
(mark with 'x' applicable portions only)
[XII. Affiant does not have a Business Relationship with any member of the City Commission or any City Advisory Board to which
the application will be presented.
1]2. Affiant hereby discloses that it does have a Business Relationship with a member of the City Commission or a City Advisory
Board to whicf1lhe application will be presented. as follows:
{Usl name of Commissioner or Advisory Board Member} who serves on the
(List City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
[l1. Member of City Commission Of Board holds an ownership interest in excess of 1% of total assets or capital stock
of Applicant or Representative;
[] ii. Member of City Commission or Board is a partner, co-shareholder (as to shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
[J Iii. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professional working from the same office or for the same employer as the member of the City Commission or
Board;
(I iv. A City Commissioner or Board member IS a Client of the Applicant or Representative:
(l v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10.000.00 01 the business of the member 01 the City Commission or Board (or
his or her employer) in a given calendar year;
I ] vi. The member of the City Commission or Board is a Customer of the Applicanl or Representative and transacts
more than $25,000.00 of the business of the Applicant or Representative in a given calendar year.
WITNESS MY HAND THIS 23AY OF .J fhr ,2006.
By:
T}Y!j: A ~
V ------- (Signature)
ULMAN
'The terms "Business Relationship,' "Client,' "Customer," "Applicant,' "Representative" and "tnterested Person" are defined in
Section 2-395 of the Aventura City Code.
25
MIAMI 971853.2 7592420873
WITNESS MY HAND THIS ')~jDAY OF 71/ 1'.I(,(/Nl Y
I
REPRESENTATIVE: (Listed on Business Relationship Affidavit)
.2006.
By: (Signature) By: (Signature)
R.T. BRINKLEY, II DAN FORTIN, JR.
Developer Engineer .
~I~~e)
By: (Signature) By:
JACQUES CLAUDIO STIVELMAN LI FORD SCHULMAN
Developer Affomey
By: (Signature) By: (Signature)
GILBERT BENHAMOU CHARLES H. BENSON
Developer Architect
By: (Signature) By: (Signature)
STANLEY B. PRICE JAMES P. KELLEY
ANomey Developer
By: (Signature) By: (Signature)
BRIAN S. ADLER MARCY KAMMERMAN
Affomey Devetoper
By: (Signature) By: (Signature)
ROBERTL.KRAWCHECK JAMES R. HELMAN
ANomey Developer
By: (Signature)
CARL SKILES
Engineer
NOTE: 1) Use duplicate sheets if disclosure information for Representative varies
2) Applicants and Affiants are advised to timely supplement this Affidavit pursuant to Sec. 31-71 (b)(2)(iv) of
the City's Land Development Regulations in the City Code, in the event that prior to consideration of the
application by the City Board or Commission, the infonnation provided in the Affidavit becomes incorrect or
incomplete.
28
MIAMI 971853.2 7592420873
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me. the unde~igned authority, personally appeared, ROBERT L. KRAWCHECK, the Affiant, who being first by me duly sworn, did swear or affirm that he/she
executed this Affidavit fortl'le purposes stated therein and that it is true and correct
ROBERT L KRAWCHECK
SWORN TO AND SUBSCRIBED before me this _ day of
,2006
Notary Public State of Florida At large
Printed Name of Notary
My commission expires:
STATE OF FLORIDA
COUNTY OF BROWARD
Before me, the unde~igned authority, personal~ appeared, JAMES R. HELMAN, the Affiant, who being first by me duly sworn, did swear or affirm that he/she
execu1ed this Affidavit for the purposes stated therein and that it IS true and correct.
JAMES R. HELMAN
SWORN TO AND SUBSCRIBED before me this _ day of
2006
Notary Public State of Florida At Large
Printed Name of Notary
My commission expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me, the unde~igned au1hority, personally appeared, CLIFFORD SCHULMAN, the Affiant. who being first by me duly sworn, did swear or afFllm that he/she
executed this Affidavit for the purposes stated therein and thalli Is true and correct.
#y...~
R,/"
. .
'~,<'- ',$
"'?0If1.<f'
Notary Public Stale of Flonda
leyla M Lucas
My CommISSIon 00448676
Expires 09/24/2009
aJ
~\....''n''-'' , CLIFF
SWORN TO AND SUBSCRIBED before me llii.::13 day 0' ~2006
Nola
31
MIAM/971853.2759242DB73
o
BUSINESS RELATIONSHIP AFFIDAVIT'"
this Affidavit Is made pUllluant to SectIon 31-71(b)(2)(1ij of the City of Aventura Land Development Code. The undellllgned Affiant hereby discloses that:
(mat1< with ')( applicable portions only)
pql. Affiant does nol have a Business Relationship with any member 01 the City Commission or any City Advisory Boerd to which
the application wDl be presented.
[ ] 2. AfliaI1t hereby discloses that It does have e Business Relationship with a member 01 the City Commission or a CRy Advisory
Board to which the application will be presented, as follows:
(Ust name 01 Commissioner or Advisory Board Membe~ who serves on the
(Ust City Commission or City Advisory Board upon which member serves).
The nalum 01 the Business Relationship Is as lolows:
[] 1. Membar of City Commission or Board holds an ownership int8fllSl in excess of 1 % of total assets or capital stock
of Applicant or Representeliva;
[J ii. Member of City Commission or Board Is a partner, oo-shamholder (as to shares 01 a corporation which are not
listed on any naIional or mglonlil sloe!< exchange) or joint v80turer with the Applicant or ReP!85antatlve In any
business venture;
[) 111. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professional .WOI1<lng from the same office or for the same employer as the member of the City Commission or
Board;
[] Iv. A City Commissioner or Board member Is a CII~ Of the Applicant or Represel)lll1lve;
[] v. The Applicant or Representatlve is a Customer 01 the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of tha City Commission or Board (or
his or her employe~ In a given eelendar yea"
II vi. The mamber of the City Commission or Board Is a Customer of the Applicant or Representative and transacts
more thoo $25,000.00 of the business of the Applicant or Represeo1ative in a given calendar year.
WITNESS MY HAND THIS 20 OA Y OF --::JA...~......' I . 2006.
I
APPLICANT REPRESENT A TI\lE:
By:A-1 . n ~ ~""'''re)
R.T.BkINKLEY,)lI - ~~"""'"
DeVJloper
'The tenns "Business Relationship: "Client: "Customer: "Applicant: "ReprBsent~" and "InterBsted Person" arB defined in
Section 2-395 ofthe Awmtuta City Code,
14
MIAMI 971853.1 7592420873
BUSINESS RELATIONSHIP AFFIDA VIT*
This Affidavit is made pursuant to Section 31-71(b)(2)(ii) of the City of Aventura Land Development Code. The undersigned Affiant hereby discloses that:
(mark with 'x' applicable portions only)
[X] 1. Affiant does not have a Business Relationship with any member of the City Commission or any City Advisory Board to which
the application will be presented.
I ] 2. Affiant hereby discloses that it does have a Business Relationship with a member of the City Commission or a City Advisory
Board 10 which the application will be presented, as follows:
(List name of Commissioner or Advisory Board Member) who serves on the
(List City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
[] i. Member of City Commission or Board holds an ownership interest in excess of 1 % of total assets or capital stock
of Applicant or Representative;
[J ii. Member of City Commission or Board is a partner, co-shareholder (as to shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
[] iii. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professional working from the same office or for the same employer as the member of the City Commission or
Board;
I] iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
[] v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) in a given calendar year;
[ ] vi. The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more than $25,000.00 of Ihe business of the Applicant or Representalive in a given calendar year.
WITNESS MY HAND THIS Q3 DAYOF T.,..,~..'1 .2006.
APP~TREPRES~NT
By: CJ\.::-:: .~ /......
STANLEY PRICE
Attorney -
(Signature)
'The terms "Business Relationship,' "Client," "Customer." "Applicant,' "Representative" and "Interested Person" are denned in
Section 2-395 of the Aventura City Code.
15
MIAMI 971853.2 7592420873
o
BUSINESS RELA TrONSHIP AFFIDA Vlr*
This Affidavit Is made pursuant to SectIon 31-71(b)(2)(IQ of the City of Aventura Land Development Code, The undersigned Affiant hereby discloses that:
(mar1\ willi "t applicable portions only)
[Xl 1. Affiant does lli1! have a Business Relationship wfth any member of the City Commission or any City Advisory Board 10 which
the eppllcalicn will be presented.
[ ] 2. Affiant hereby discloses that ft does have a Business Relationship wIlh a member 01 the City Commission or a City AdvlsOTY
Boani to which the application will be presentad, as follows:
(Ust name of CommlS$loner or Advisory Board Member) who serves on the
(Ust City Commission or CIty Advisory Board upon which member 88l'1es).
The nature of the Business Relationship Is as toUows:
I J i. Member of City Commission or Board holds an ownership Interest In eiaJess of 1 % of total assets or capital stock
Of Appicant or Representative;
[] II. Member of City Commlsskln or Boarrl is a partner, co-shareholdar (as to shares of a corporation which ere not
listed on any natlon~1 or regional stock exchange) or joInlventurer with the Applicant or Representative in any
business venture;
[] iii. The AppI1cant or Representative is a Clen! of a mamber of the City Commission 01' Board or a Client of another
professional working from the same office or for the same employer as the member of the City Commission or
Board;
[] Iv. A City Commissioner or Board member is a Client of the ApplicElll or Representative;
[J v. The Appllcent or Representative Is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City CommIssion or Board (or
his or her employer) In a given calendar year,
[] vi. The member of the Cfty Commission or Board Is a Customer of the Applicant or Representative and transacts
more than $25,000.00 of the business of the Applicant or Represantatlve in a 91ven calendar year.
WITNESS MY HAND THIS 2.0 DAYOF -r;i,..v,a.r-I. .2006.
.
8y:
Slgnmura)
'The tenns 'Business Relationship,' 'Client,' 'Customer,' 'Applicant: 'Representative' end 'Interested Person' are defined In
Section 2-395 offhe Aventum City Code.
16
MIAMI 971853.1 7592420873
..,..--.---.-
-...,..-
fa
BUSINESS RELA rlONSHIP AFFIOA vIr
This Affidavits made pursuant to SecIlen 31-71(bX2XIi) of the City of Aventum Land Development Code. The UIldelslgned Affiant hereby discloses that:
(mark with .~ applicable portions only)
{X] 1. Affiant does !!Q! have e Business Relaijonshlp wllh any member of the City Commlssloo or any City Advisory Board to which
the appllcallon win be presented. .
I J 2. Affiant hereby discloses that Ii does have a Business Relationship with a member of the City Commission or a City Advisory
Board 10 which the applicaijon will be presented, as follows:
(Ust name of Commissioner 01 Advisory Board Member) who serves on the
(Uat City Commission or City Advisory Board upon which member serves).
The nature of the Business RelaijOnshlp Is as follows:
I J i. Member of City Commission or Board holds en ownership Interest in excess of 1% of Iotalassets or capital stock
of Applicant or Representative;
.
[] II. Member of Clly Commission or Board Is a partner, CQo5haraholder (as to shares of a corporation which ara not
listed en any national or regional stock exchange) 01' joint venturer with the Applicant or Representative In any
business venture;
I J iii. The Applicant or Representative Is a Client of a member of the City Commission or Board or a Clioot of another
professional working Inim the same ofIIce or for the same employer as the member of the City Commission or
Board;
[] Iv. A City Commissioner or Board member Is a Client of the Applicant or Representative;
I) v. The Applicant or Representative Is a Customer of the member 01 the City Commission or Board (or of his or her
employe~ and transacts marathan $10,000.00 of the business of the member of the City Commission or Board (or
his or her emp~ in a given calendar year,
I J vi. The member 01 the City Commissloo or Board Is a CUSlomef of the Applicant or Representative and transacts
more than $25,000.00 of the business of the Applicant or Representative In a.given calendar year.
DTHI&;t...Q....DAYOF ~"'I\....c""""' 2006.
\
GI~
Deve/Vr i
*The terms 'Bus/nJs Relationship,' 'Client,' 'Customer,' 'Applicant,' 'Representative' and 'Intarested Person' al9 defined in
Sectfon 2.395 of the Aventulll City Code.
SiglllllwB)
APPI:.ICANT R
By:
17
MIAMI 911853.1 7592420873
BUSINESS RELATIONSHIP AFFIDA VIT*
This Affidavit is made pursuant to Section 31-71(b)(2)(ii) of the City of Aventura Land Development Code. The undersigned Affiant hereby discloses that:
(marl< with 'x' applicable portions only)
[X] 1. Affiant does not have a Business Relationship with any member of the City Commission or any City Advisory Board to which
the application will be presented.
[ ] 2. Affiant hereby disctoses that it does have a Business Relationship with a member of the City Commission or a City Advisory
Board to which the application will be presented. as follows:
(List name of Commissioner or Advisory Board Member) who serves on the
(List City Commission or City Advisory Board upon which member serves).
The nature ot the Business Relationship is as follows:
[] i. Member of City Commission or Board holds an ownership interest in excess of 1% of total assets or capital stock
of Applicant or Representative;
I] ii. Member of City Commission or Board is a partner, co-shareholder (as to shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
[] iii. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professional worl<ing from the same office or for the same employer as the member of the City Commission or
Board;
[ ] iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
[] v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10.000.00 of the business of the member of the City Commission or Board (or
his or her employer) in a given calendar year;
I] vi. The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more than $25,000.00 at the business of the Applicant or Representative in a given calendar year.
WtTNESS MY HAND THIS )4' DAY OF
~/'-.-
,2006.
APPLICANT REPRESENTATIVE:
---r')? ~
By: ~
BRIAN . ADLER
Affomey
(Signalure)
'The terms "Business Relationship," "Client," "Customer," "Applicant," "Representative" and "Interested Person" are defined in
Section 2-395 of the Aventura City Code.
18
MIAMI 971853.2 7592420873
o
BUSINESS RELATIONSHIP AFFIDA VI,..
This AflIdavll Is made plJSuant 10 Section 31-71(b){2)(lij of the City of Aventura Land Development Code. The undelslgned Affiant hereby discloees that:
(marl< with 'x' eppllcable portions only)
(X] 1. AffIant does not have a Business Relallonshlp with any member of Ihe City Commission or any City AdvIsory Board 10 which
the application wll be presented.
[ ] 2. Affiant hereby discloses that II does have a Business Relationship with a member of the City CommlsskJn or a City Advisory
Board 10 which the application will be presented, as follows:
(Ust name of Commissioner or Advisory Board Member) who serves on the
(Usl City Commission or City Advisory Board Upon which member servas),
The nature of the Business Relationship is as follows:
I) i. Member of Clly Commission or Board holds an ownBlShlp ilterest in excess of 1% of total assets or capital sloc~
of Applicant or Representative;
[] II. Member of City Commission or Board is e pallner, co-shareholder (as to shares of a corporation which are nol
listed on any national or regional slack exchange) or joint venturer with the Applicant or Representative In any
business venture;
I] IIi. The Applicant or Representative Is a Client of a member of the City Commission or Board or a Client of another
professkJnal working from the same office or for lhe same employer as the member of the City Commission or
Board;
[] Iv. A city Commissioner or Board member is a Cllentofthe Applicant or Represenlallve;
II v. The Applicant or Representative is a CUs10nler of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) In a given calendar year;
[] vI. The member of the City Commission or Board Is a Customer of the Applicant or Representalive and transaCts
more \han $25,000.00 of the business of the Applicant or Representative In a given calendar year.
WITNEss MY HAND THIS~ DAY OF ::IA..lu~t ,2006,
Signature)
"The terms "Business Relationship: "Client: 'Customer: "Applicant: "Representative" and "Interested' Palllon" are defined In
Section 2-395 of the AventUIll City Code.
20
MtAMI 971853.1 7592420873
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavit is made pursuant to Section 31-71(b}(2)(ii) of the City of Aventura land Development Code. The undersigned Affiant hereby discloses that:
(mark with .x' applicable portions only)
pq 1. Affiant does not have a Business Relationship with any member of the City Commission or any Coy Advisory Board to which
the applicalion will be presented.
( ] 2. Affiant hereby discloses that it does have a Business Relationship with a member of the City Commissioo or a City Advisory
Board to which the application will be presented, as follows:
(UsI name of Commissioner or Advisory Board Member) who serves on the
(list City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
[} i. Member of City Commission or Boafd holds an ownership interest in excess of 1% of total assets or capital stock
of Applicant or Representative;
II ii. Member of City Commission or Board is a partner, co-shareholder (as to shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
[1 Hi. The Applicant or Representative Is a Client of a member of the City Commission or Board or a CHent of another
professional working from the same office or for lhe same employer as the member of the City Commission Of
Board;
II iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
[I v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) in a given calendar year;
I ] vi. The member of the City Commission Of Board is a Customer of the Applicant or Representative and transacts
more than $25,000.00 of Ihe business of the Applicant or Representative in a given calendar year.
NO 523 OAYOFV4J;M V,2006
(
(Signature)
'The terms "Business Relationship: 'Client: "Customer.' "Applicant: "Representative' and "Interested Person' are defined in
Section 2-395 of the Aventura C"y Code.
21
MIAMI 971853.2 7592420873
BUSINESS RELA rlONSHIP AFFIDA VIP
This Affidavit is made pursuant to Section 31-71(b)(2)(ii) of the City of Aventura Land Development Code. The undersigned Affiant hereby discloses that:
(mark with "x' applicable portions only)
IX] 1. Affiant does not have a Business Relationship with any member of the City Commission or any City Advisory Board to which
the application will be presented.
[ ] 2. Affiant hereby discloses that it does have a Business Relationship with a member of the City Commission or a City Advisory
Board to which the application will be presented, as follows:
(List name of Commissioner or Advisory Board Member) who serves on the
(List City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
I J i. Member of City Commission or Board holds an ownership interest in excess of 1 % of total assets or capital stock
of Applicant or Representative;
[] ii. Member of City Commission or Board is a partner, co-shareholder (as to shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
[J iii. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professional working from the same office or for the same employer as the member of the City Commission or
Board;
I J iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
I J v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) in a given calendar year;
I J vi. The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more than $25~.00 of the business of the Applicant or Representative in a given calendar year.
WITNESS MY HAND THISL4j~ OF r~' 2006.
APPLICANT REPRE NT A TIVE:
By:
(Signature)
'The terms "Business Relationship," "Client," "Customer," "Applicant," "Representative" and "Interested Person" are defined in
Section 2-395 of the Aventura City Code.
22
MIAMI 971853.2 7592420873
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavit is made pursuant to Section 31-71(b)(2)(ii) of the City of Aventura Land Development Code. The undersigned Affiant hereby discloses that:
(mark with .x. applicable portions only)
[X] 1. Affiant does not have a Business Reiationship with any member of Ihe City Commission or any City Advisory Board to which
the application wili be presented.
[ ] 2. Affiant hereby discloses that il does have a Business Relationship with a member of the City Commission or a City Ad~sory
Board to which Ihe application will be presented, as follows:
(Ust name of Commissioner Of Advisory Board Member) who serves on the
(Ust City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
[1 i. Member of City Commission or Board holds an ownership interest in excess of 1% of total assets or capital stock
of Applicant or Representative;
[] iL Member of City Commission Of Board is a partner, co-shareholder (as 10 shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicanl or Representative in any
business venture;
[1 m. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professional working from the same office or for the same employer as the member of the City Commission or
Board;
[] iv. A City Commissioner or Board member is a Client of the Applicant or Representative:
[1 v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more Ihan $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) in a given calendar year;
The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more than $25,00000 ot t~ness of the Applicant or Representalive In a given calendar year
WITNESS MY HAND TH~ DAY OF 'J- '! ,2006
PLlCANT REPRES T1 LL- (
[J vi.
(~JgmJlUlt1)
"The terms 'Business Relationship: "Client: "Customer: "Applicant: 'Representative' and 'Interested Person" are defined in
Section 2-395 of the Aventura City Code.
23
MIAMI 971853.2 7592420873
fa
BUSINESS RELATIONSHIP At=FIDA VIT*
This Affldavllls made pursuant to Section 31-71(bX2)(II) of the City of Aventura Lend Development Code. The undersigned Affiant hereby dlsd<lses thal:
(mar1< with 'x' applicable por1Jons only)
[X] 1. Afflent does not hava a Busin..s Relationship with any member of the City Commission or any City Advisory Board to which
lhe applicalion wlli be presented.
[ ) 2. AffIant hereby discloses that It does have a Business Relationship with a member of the City Commission or a City Advisory
Board to which the application will be presented, as follows:
(Us! name of Corrunissloner or Advisory Board Member) who serves on the
(Ust City Commission or City Advisory Board upon whlcl1 member sarves).
The natura of the Business Relationship Is as follows:
[] I. Member of City Commission or Bcam hold. an ownership Interest In excess of 1% of total assets or capl1al slack
of AppIlcant or RepresentaUve;
[) iI. Member of City Commission or Board is a partner, ClHlhareholder (as to shares of a corporation whJcl1 are not
listed on sny national or regional stod< exchange) 'or Joint venturer with the Applicant or Representative In any
busIness venture;
[I iiI. Tha Applicant or Representatlva is a Client of a member of tha City Commission Of BoamOf a Client of another
professional WllI1<lng from the same ofIIce or for the same emploYllf as the member of the City Commission Of
Bcam;
[] Iv. A City Commissioner or Boam member Is a Client of the Applicant or Representative;
I] v. The Applicant Of RepresentatIve is a CUstomllf of the member of the City Commission or Board (or of his or her
employer) ~d transacts more !han $10,000.00 of tile business of the member 01 the City Commission or Beam (or
his or hllf employer) In a given caiendaJ year;
[] vi. The member of the City Commission or Boamls a Customer of the Applicant or Representative and transacls
more than $25.000.00 of the business of the App6cant or Representative in a given calendar year.
DAY OF Jr>>1 (/() { .2006.
By: Signature}
'The terms 'Business Relationship: 'Client: 'Custome,: 'Appllcent: 'Representative' and 'Interested Person' are danned In
Saction 2-395 of/ha Aventum City Code.
25
MIAMI 971853.1 7592420873
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavil is made pursuant to Section 31-71(b)(2)(ii) of the City of Aventura Land Development Code. The undersigned Affiant hereby discloses that
(mart< with 'x' applicable portions only)
[X] 1. Affiant does not have a Business Relationship with any member of the City Commission or any City Advisory Board to which
the application will be presented.
[ ] 2. Affiant hereby discloses that it does have a Business Relationship with a member of the City Commission or a City Advisory
Board to which the application will be presented. as foliows:
(Ust name of Commissioner or Advisory Board Member) who serves on the
(List City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
[ I i. Member of City Commission or Board holds an ownership interest in excess of 1 % of total assets or capital stock
of Applicant or Representative;
[J ii. Member of City Commission or Board is a partner, co-shareholder (as 10 shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
II lii. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professionai V/Qrt<ing from the same office or for the same employer as the member of Ihe City Commission or
Board;
[J iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
[J v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of Ihe City Commission or Board (or
his or her employer) in a given calendar year;
[] vi. The member of the City Commission or Board is a Customer of fhe Applicant or Representative and transacts
more Ihan $25.000.00 of the business of the Applicant or Representative in a given calendar year.
WITNESS MY HAND THIS 13( J DAY OF ~. 2006.
T REPRESENT ;rIVE:
(Signature)
By:
Rey KA MERMAN
veloper
WITNESS MY HAND THIS ~ DAY OF 1~ I\~. 2006.
TY WNER:
(Signature)
'The terms 'Business Relelionship,' 'Client,' 'Customer," 'Applicent," 'Representative' and "Interestad Person" are defined in
Section 2.395 of the Aventura Cdy Code.
26
MIAMI 971 B53.2 7592420873
WITNESS MY HAND THIS 2.;./ DAY OF 'j ItNV AIl'/, 2006.
- f
REPRESENTATIVE: (Listed on Business Relationship Affidavit)
By: (Signature)
R.T. BRINKLEY, II
Developer
By: (Signature)
JACQUES CLAUDIO STIVELMAN
Developer
By: (Signature)
GILBERT BENHAMOU
Developer
By: (Signature)
STANLEY B. PRICE
Attorney
By: (Signature)
BRIAN S. ADLER
Attorney
By: (Signature)
ROBERT L. KRAWCHECK
Attorney
By: (Signature)
CARL SKILES
Engineer
By:
(Signature)
DAN FORTIN. JR.
Engineer
By: (Signature)
CLIFFORD SCHULMAN
Attorney
By:
By:
By:
(Signature)
NOTE: 1) Use duplicate sheets if disclosure information for Representative varies
2) Applicants and Affiants are advised to timely supplement this Affidavit pursuant to Sec. 31-71 (b)(2)(iv) of
the City's Land Development Regulations in the City Code, in the event that prior to consideration of the
application by the City Board or Commission, the information provided in the Affidavit becomes incorrect or
incomplete.
MIAMI 971853.2 7592420873
27
WITNESSMYHANDTHIS :]OT'6'AYOF TIrNt/A/ZY,2oo6.
- /
REPRESENTATIVE: (Listed on Business Relationship Affidavit)
By: (Signature) By: (Signature)
DAN FORTIN. JR.
Engineer
By: (Signature) By: (Signatulll)
10 STlVELMAN CLIFFORD SCHULMAN
ANomey
By: (Signatulll) By: (Signature)
GILBERT BENHAMOU CHARLES H. BENSON
Developer Architect
By: (Signeture) By: (Signatulll)
STANLEY B. PRICE JAMES P. KELLEY
ANomey Dave/oper
By: (Signatulll) By: (Signatulll)
BRIAN S. ADLER MARCY KAMMERMAN
ANomey Developer
By: (Signatulll) By: (Signatulll)
ROBERT L. KRAWCHECK JAMES R. HELMAN
ANomey Daveloper
By: (Signatulll)
CARL SKILES
Engineer
NOTE: 1) Use duplicate sheets If disclosure information for Representative varies
2) Applicants and Affiants are advised to timely supplement this Affidavit pursuant to Sec. 31.71 (b )(2)(iv) of
the City's Land Development Regulations in the City Code. in the event that prior to consideration of the
application by the City Board or Commission, the information provided in the Affidavit becomes incorrect or
incomplete.
27 A-
MIAMI 971853.2 7592420873
WITNESSMYHANDTHISZD DAYOF Ja-'1"'''''''1 .2006.
REPRESENTATIVE: (Listed on Business Relationship Affidavit)
~-""'l~-r
B . /. -) ~
R. . BRINKLEY, II
Developer
By:
(Signature)
lffi. DlO STIVELMAN
By:
By:
By:
(Signature)
By'
By: (Signature)
CLIFFORD SCHULMAN
Attornay
By:
JAMES P. KELLEY
Dave/oper
By:
MARCY KAMMERMAN
Developer
(Signature)
(Signature)
By: ~R iL(SignatureJ
Dave f-
" -; -- ,,-
CHARL S H. BENSON
Archltact
NOTE: 1) Use duplicate sheets if disclosure Information for Representative varies
2) Applicants and Affiants are advised to timely supplement this Affidavit pursuant to Sec. 31-71(b)(2)(iv) of
the City's Land Development Regulations in the City Code, in the event that prior to consideration of the
application by the City Board or Commission, the information provided in the Affidavit becomes incorrect or
incomplete. .
MIAMI 971853.1 7592420873
27 13
NOT ARIZA TION PROVISION
STATE Of FLORIDA
COUNTY OF MIAMI-DADE
Before me, the undersigned authority, personally appeared, R.T. BRINKLEY, II, the Affiant, who being fllSt by me duty sworn, did swear or affirm that helshe
executed this Affidavit for the purposes sta1ed therein and that it is true and COJTeCl
R.T. BRINKLEY. II
SWORN TD AND SUBSCRIBED before me th~ _ day 01
,2006,
Notary Public Stale 01 Florida Alla'lle
Printed Name of Notary
My commis$k)n expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
JACQUES CLAUDIO STIVELMAN
SWORN TO AND SUBSCRIBED before me th~ 2U day 01 1(V1 U~.06.
'~\~~';""" MtlLlE AMADOR
0," ~,,\ NotaryPubIic.SlIleofF_
I, .jMyCommissionElqllrosJlHI14.2009
;14. C...-.OO440815 Pnnte<lNameolNoleryl~
~ tIYfI~<r~~ Bonded National Notary "-'. My commission expires.
Before me, the u~~ned authon~, persooal~ appeared. JACQUES CLAUDIO STIVELMAN, the Affian\ who being first by me
he/she executed this Affidavit for the purposes stated therein and that it is true and correct.
STATE Of FLORIOA
COUNTY OF MIAMI-OADE
Bolore me, the unders~ne<l authority. personany appeared, GILBERT BENHAMOU. the Aflian\ who beil19 first by me du~ sworn. d~ swear or affm that helshe
executed this Affidavit for the purposes stated therein and that it is true and correct.
GILBERT BENHAMOU
SWORN TO AND SUBSCRIBED before me this _ day of
,2006.
Notary Public State of Florida At la'lle
Printed Name of Notary
My commission e:q>ires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me. the undersigned authority, personally appeared, STANLEY B. PRICE, the Affiant, whO being first by me duly sworn, did swear or afftrm that helshe
executed this AffIdavit for the purposes stated therein and that it is true and correct
STANLEY B. PRICE
SWORN TO AND SUBSCRIBED before me th~ _ day of
.2OIJ6.
Notary Public State of Flor\da At Large
Prinled Name of Notary
My commission expires:
28
MIAMI 9718532 7592420873
__ _..__ ~_ ._._ _...... _n' .___. __.~.,_.__.,_. _ _______..._.n..._..________....._.._ .. ._~____ ...__.._. --..
NOTARIZATION PROVISION
STATE OF FLORIDA
COUN'TY OF MIA~-DADE
BefOre me, the undarslgned authority, p"""nally appeared, R.T. BRINKLEY, II, tho AflIalll. who being filst by me dUy sworn, did swear or eftInn thIlI he/she
executedth.AffidavllforthepUlJloses_1hemlnandthat~lstrueandco""c1. ~ '~' _ .
~-,.G ~_--.!.L
/'(' R.T,BRNKLEY,II Ro.-r.13 iN )::..\..ey::u:..
SWORNTOANDSU8SCRI8EDbeforamethls~daYol.::JAAI{'l4zr' r2~ /'?' '___
No1aIY Pub~S1ata ofliol1da At Large
Plin1Bd Name of NoIaIY
My comrrissJon expires:
fI;~~
. '==~a:'llD.
STATE OF FLORIDA
COUN'TY OF MIAMI-DADE
Bafora me. the undo..~ned authority. pelllonaly appeared, JACQUES CLAUDIO STlVELMAN. the Afllan\ who being first by me duly swom. did .....r or afl1nn 1ha1
he/she executad this Af1Idavk for the purp.... sIatad theraln ond that k Is true and conecl.
JACQUES CLAUDIO ST1VElMAN
SWORN TO AIoIl SUBSCRIBED before me this _ dill' of
.2006.
Notary Public S1afe of FloIIla At Largo
Prlnfad Name of NofalY
My commission expires:
STATE OF FLORIDA
COUNlY OF MIAMI-DADE
GIL
SWORN TO AND SUBSCRIBED before melhls~dOY ~J4J..,~ 2006.
ColI.II"" D048I315
Bonded By NIIonII-,.....
8efore me, the undelS\lned &uthorily, pelSOnaly appeared. GIL8ERT BENHAMOU. lho Affi
executad this Afl1davIl for the purposes _ therein ond that ~ Is true and GOITllCI.
STATE OF FlORIDA
COUNTY OF MIAMI-DADE
8efore me, the undBlSlgnod authorItY. personaly appeored, STANLEY 8. PRICE. the Affiant, who being ~~ swom, did sweer or offinn that helshe
..ecutad this Affidav~Iorthe purposes sIatad theraln and thaWs trua and correct. C1 () ~ ,/
a :.;,i~
ST~NL~~
SWORN TO AND SUBSCRIBED befora methB dO day of M 2006.
NoIa'!P Ic
C/.../
Plin1Bd Name of otary
My commisskm expires:
28A
''!<'l:'!iIi'ilJo,..
::~. --~..,
g.{ W
'l9.;.,.....~/
'1J4/("r:;:;-'
EUZABETH ORTIZ
MY COMMISSION I DO 164469
EXPIRES: December 17, 2006
BoodedThruPlcharnln~rarteeAgency
MIAMI 971853.1 759242()873
STATE OF FLORIDA
COUNTY OF MIAt.'l-DADE
Belare ma, tha undalS\lnod authorlly, peISOl1lllly appeared, BRIAN S. ADLER, 1I1e Affiant. YIl10 beII1g filSl ma duly sworn, did swear or afIim ihat he/sha exacu1ed
this Alfidavlt fcr1he purposes sla1ed theraln and I1at h ~ tJUa and conect. ~~-
B
SWORN TO AND SUBSCRIBED before me 111s30 day~ 2006.
""""" ELIZABETH ORTIZ ~~'e' ':~'i?~a 7/ i-
/iA!!"'''~i\ MY COMMISSION I DO 164469 Pnnted Nama of Notary
,'i. n EXPIRES: IleC<>mber 17, 2006 My commission ~nl...:
~'. ....si!~~ BonOedThruPichardlnSulanceAgel1C)' "'"I"
#,'i,.ar;;f;\o.;-"
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me. the unda!S\lned authoilty. pelSOl18lly appeared, CARL SKILES, tha Afflailt. who being fillll by me duly sworn, did _, or aflInn thai helsh. executed
th~ AflJdavRforthe purposes a1a\ed therein end thatals tIla and eomlCI.
CARL SKILES
SWORN TO AND SUBSCRIBED beIore mathls _ day of
2006.
Notary Public Slale of Fbrlda At LArga
Pl1nted Nama of NoIary
My commission expl...:
STATE OF FLORIDA
COUNTY OF MIAMH:lADE
Before me, tha underep aul1oilty, personally appeared. DAN FORT
executed this AlIIdavit lor tha purposes stated thlll81nand that k Is tnJe and
Affiant who b~ng fim by me duly sworn. did swear or aflInn that helshe
SWORNTOANDSUBSCRIBED_methis tD day~lI~
DAN FORTIN. JR.
2006. G ///2
~~ ~
NoIary S of FIO!ida At LArge
----
P~nted Name of Notary
My commission expirao:
GlJ ::,:='.1lB1I1111
~..~ E>qliIwtMon:h 1l8. 2007
STATE OF flORIDA
COUtoITY OF MIAMI.DADE
Before me, the undarslgned autlioilty, pelllOnally appeared,
executed this Aflldal4llorlho purposes staled 1hereilanci that hi. true and correct.
the AfII.nI, who being fllSl by me duly swom. did ....., or efIiTm th.t he/she
SWORN TO AND SUBSCRIBED before me \hI. _ day of
.2006.
Notary Public S1a1e of Florida At LArge
Pnnted Name of Notary
29
MIAMI 971 B53.1 7592420873
--.--_..._~---.--------------_..-
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me. the undersigned authority, personally appeared, BRIAN S. ADLER, the Affiant, who belng first by me duly sworn, did swear or affm that heJshe executed
this Affidavit for the purposes stated therein and that" is true and correct
BRIAN S. ADLER
SWORN TO AND SUBSCRIBED belore fT'<l tho _ day of
2006.
Notary Pubftc State of Florida At Large
Printed Name of Notary
My commission expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me, the undersigned authority, personally appeared, CARL SKilES, the Affiant, who being fll'St by me dUly sworn. did swear or affinn that hefshe executed
this Affidavit for the purposes stated !herein and that it is lrue and correct.
CARL SKILES
SWORN TO AND SUBSCRIBED belore me this _ day 01
.2006.
Notary Public State of Florida At large
Printed Name of Notary
My commission expires:
STATE OF FLORIDA
COllNTY OF MIAMI-DADE
Before me, the undersigned authorily, personally appeared, DAN FORTIN, JR., the Affiant. who being first by me duly sworn, did swaar or affirm that helshe
executed this Affidavit for the purposes slated therein and that it is true and correct.
DAN FORTIN. JR.
SWORN TO AND SUBSCRIBED belore fT'<l this _ day 01
.2006.
Notary Public State of Florida At Large
Printed Name of Notary
My commission expires:
e duly sworn, did swear or affirm that he/she
STATE OF FLORIDA
COUNTY OF BROWARD
Before me, the undersigned authority, personally appeared, JAMES P. KELLEY
executed this Affidavit for the purposes stated therein and that it is true and correct.
SWORN TO AND SUBSCRIBED before me this 7~ day
.:nAHY PLllUC-SfAJE OF FLORIDA
~!) ',., Lisette Alonso
".', l Commission # DD432582
, Expires: MAY 22, 2009
Bonded Thru Atlrmtic Bonding Co., Inc.
1~V\<Jf)K{ 2006~ . _
AAH>'tbc C~)
~ry.PUbl;C state of FloJida A~~e ')
/\ "Sf" .tt--P cy\:::{
Ponled NafT'<l 01 Notary ~ ",,\ ) OO~
My commISSIOn expires:.. . tro'- J -- .
29 f'r
MIAMI 971853.2 7592420873
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me, tI1e undersigned authonty, personally appeared, ROBERT L. KRAWCHECK. the Affiant,. 0 being first by me duly swom, did swear or affirm Ihat he/she
executed this Affidavit for the purposes stated therein and that it is true and correct. ,- "';?"" F
A /A/~-
, ROBERT L. KRAWCHECK
SWORN TO AND SUBSCRIBED before me thi,dO day Ol~, 2006.
'~-:;;;'~'"
!~'''b.'''ih
~~t~
."~'r'*'o/
'r.r,,~
EUZABElH ORTIZ l
MY COMMISSION I DD 164469
EXPIRES: Dec<lmber 17, 2006
BondedThruPlctlard'osura~A90ncy ._;
of Flonda At Large ..-r/' , I
t3J.-/;;<.AtJ-l//'r
Printed Name of Notary
My commission expires:
..-....'
STATE OF FLORIDA
COUNTY OF BROWARD
Before me, the undersigned authority, personally appeared, JAMES R. HELMAN, the Affiant, who being first by me duly sworn, did swear or affirm thaI he/she
executed this Affidavit for the purposes stated therein and that it is true and correct.
JAMES R. HELMAN
SWORN TO AND SUBSCRIBED before me this _ day 01
.2006.
Notary Public State of Florida At Large
Printed Name of Notary
My commission expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me, the undersigned authority, personally appeared, CLIFFORD SCHULMAN, the Affiant, who being first by me duly swom, did swear or affirm that he/she
executed this Affidavit for the purposes stated therein and that it is true and correct.
CLIFFORD SCHULMAN
SWORN TO AND SUBSCRIBED belore me tI1is _ day 01
,2006.
Notary Public State of Florida At Large
Printed Name of Notary
My commission expires:
30
MIAMI 971853.2 7592420873
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Before me, the undersigned authority, personally appeared, ROBERT l. KRAWCHECK, the Affian~ who being first by me duly sworn, did swear oraflirm that he/she
executed this Affidavit for the purposes stated therein and that it is true and correct.
ROBERT L. KRAWCHECK
SWORN TO AND SUBSCRIBED before me this _ day of
2006.
Notary Public State 01 Florida At Large
Printed Name of Notary
My commission expIres:
STATE OF FLORIDA
COUNTY OF BROWARD
Belore me, the undersigned authority, personally appeared, JAMES R. HEUMN, the AffIan
executed thIs Affidavit for the purposes stated therein and that it Is true and correct.
SWORN TO AN~'?;WflitY&ffi.~&"r~~oR'lffA'f
, fi <f Lisette Alonso
('1flJ CD~ssion # DD43258~
\sc.:( Fxpues: MAY 22, 2009
,d~'''-''''' _ _d d ;\tlantic Boodinl CO,! Inc.
cz~
Nota1 Public State of FtoJi<ja At.Lll'9.i cy\ q' \
( ck'++ -<2 If-! JJ
Printed Name of Nota~ ~ .? ., 200er
My commISSion eKptres: . ~,--{ CJ J
STATE OF FLORIDA
COUNTY OF MIAM~DADE
Before me, the unders~ned authority, personally appeared, CLIFFORD SCHULMAN, the Affiant, who being first by me duly sworn, did swear or affirm that heJshe
executed this Affidavit for the purposes stated therein and that it is true and correct
CLIFFORD SCHULMAN
SWORN TO AND SUBSCRIBED betore me this _ day of
.2006.
Notal)' Public State of Florida Al Large
Printed Name of Nota~
My commission expires:
30 A
MIAMI 971853.2 7592420873
Before me, the undelSlgned aulhotlly, peraonally eppo.red. CHARlES H. BENS
exeeu1ed this Aftldavtt for the purpooea s1a1ed \lloIe1n and that Mis true end eolT1lCl.
e duly sworn, did swear or aflInn that he/she
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
CHARLES H. BENSON
SWORN TOANO SUBSCRIBED boIore me thVc day ofjMJ 2006.
STATE OF FLORIDA
COUNTY OF BROWARD
BeIonl me, the undolSlgned authorl1y, poraonally appeared, MARCY KAMMERMAN. tha Afllent, who bel1g first by ma duly sworn. lI<I swear or aflinn that he/she
IlXllCIiad Ihls Aflldavlt tor the PUf1lO6" stated therein end Ihat h is true end eonacl.
MARCY KAMMERMAN
SWORN TO AND SUBSCRIBED before molhls _ day of
2006.
NotaJy Pubic SIllIe of Florida At Lalge
Pdrm.d Nome of Notal'f
My eommlssim "",1",",
3]
MIAMI 971853.1 7592420873
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Belore me, the undersigned authority. personally appeared, CHARLES H. BENSON, the Affiant who being first by me duly sworn, did swear Of affirm that he/she
executed this Affidavit for the purposes stated therein and that it is true and correct
SWORN TO AND SUBSCRIBED before me this _ day 01
CHARLES H. BENSON
2006.
Notary PubUc State of Florida At Large
Printed Name 01 Notary
My commission expires:
ST ATE OF FLORIDA
COUNTY OF BROWARD
Before me. the undersigned authority. personally appeared, MARCY KA
executed this Affidavit for the purposes stated therein and that jt is true and correct.
SWORN TO AND SUBSCRIBED before rro lhisJ.:3~y O~i:)
MIAMI 971853.2 7592420873
...,..'''''"'~."
~~~\~~Xft
PrinleiCl Name 0 0 ry..
My commission expires:
~y ~ Kathleen S Markell
! J e My Commission 0017&076
'~!;I Expilel March 09, 2007
314
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavit is made pursuant to Section 31-71(b)(2)(ii} of the City of Avenlura Land Development Code.
(mark with 'x' applicable portions only)
~
The undersigned Affiant hereby discloses that
Affiant does not have a Business Relationship with any member of the City Commission or any City Advisory Board to whicrl
the application will be presented.
[ 12. Affiant hereby discloses that it does have a Business Relationship with a member of the Cily Commission or a City Advisory
Board to which the application will be presented, as follows'
(List name of Commissioner or Advisory Board Member) who serves on the
(List City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows
[1 i, Member of City Commission or Board holds an ownership inierest in excess of 1 % of total assets or capital stock
of Applicant or Representative;
[J ii. Member of City Commission or Board is a partner, co-shareholder (as to shares 01 a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
[J iii. The Applicant or Representative is a Client of a member of the City .commission or Board or a Client of another
professional working from the same office or for the same employer as the member of the City Commission or
Board;
I] iv. A City CommIssioner or Board member is a Client of the Applicant or Representative;
I] v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) in a given calendar year:
[1 vi. The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more than $25,000.00 of the business of the Applicant or Representative in a given calendar year.
WITNESS MY HAND THISJ2{tDAY OF'} lL'I'. . 200_,(;, DO'~ ..J~; A...
rch ser ~~HA~
NOTARY PUBLIC OF NEW JERSEY
By Signature) QUALlFIEO IN MORRIS COUN1Y
Name: (Print) My Co",""," . <'mires 1213/07
Title: Co ,";: II (Print)
WITNESS MY HAND TH1SLYO\AY OF -:s 0. 0. ,200/"
~
By: (Signature)
Name .e.< ...0..." 'tJ\.. C:;~t:>\g.( (Print)
Tille: (. E () ,,_(Print)
'The terms "Business Relationship," "Client," "Customer," 'Applicant," "Representalive" and "tnterested Person" are defined in
Section 2-395 of the Aventura City Code.
STATE Of ~)
COUNTY OF t::'..sl5~
Before me, the undersigned authority, personally appeared~('o.'4\~. ~~V the Affiant, who being first by me duly sworn, did swear or affirm that
he/she execuled this Aflldavll for Ihe purposes steted lherein end Ihat Ills true and conecl
NOTARIZATION PROVISION
i:.) ;
Notary Public State of
Printed Name of Notary
My commission expires:
i)~~
DOLORES HAVEl
NOTARY PUBLIC OF NEW JERSEY
aUALIAED IN MORRIS COUNlY
My Commission Expires 12/3/07
AFFIANT
SWORN TO AND SUBSCRIBED before meth~ ~ ~y of "S"CA f"... ,200_-6
STATE OF FLORIDA )
COUNTY OF MIAM~DADE)
Before me, Ule unders~ned authority, personanyappeared
he/she executed this Affidavlt for the purposes stated therein and that It Is true and correct.
the Affiant, who being first by me duly sworn, did swear or affirm that
AFFIANT
SWORN TO AND SUBSCRIBED before melhls _ day of
.200_.
Fi
Notary Public Stale of Floride At large
Printed Name of Notary
My commission expires:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE)
Before me, the undersigned authority, personally appeared
he/she executed this Affidavit for the purposes stated therein and that n is true and correct.
the Affiant, who being first by me duly sworn, did swear or afflnn that
AFFIANT
SWORN TO AND SUBSCRIBED before me this _ day of
,200_.
Notary Public Slale of Florida At large
Printed Name of Notary
My commIssion expires:
STATE Of FLORIDA )
COUNTY OF MIAMI-DADE)
. Before me, the undersigned authority, personally appeared
halshe executed this Atndavtt for the purposes stated therein and thaI It is true and correct
the Affiant, who being first by me duly sworn, did swear or afflnn that
':'.
AFFIANT
SWORN TO AND SUBSCRIBED before me this _ dey of
,200_.
Notary Public State of Florida At Large
Printed Name of Notary
My commission expires:
~...T
01/27/2005 09:34
3054555505
UPTOWN MARINA LOFTS
PAGE 02/05
e
BUSINESS RELATIONSHIP AFFIDA YIT*
This Affidavit is mede pursuanl to Section 31.71(b)(2)(1I) of Ihe City of Avenlura Lend Development Code. The undersigned Affiant hereby disclosos th.t:
(m.rk with 'x' applicable ponions only)
1Xl1. Affiant does !lll1 have a Busine.. Relationship wilh any member of the City Commission or any City AdVl""ry Board 10 which
the application will be presented.
[ )2. Affiant hereby disclose' Ihat it doos have a 8uslnes' Relalionship w~h a member of the City Commission or a City Advisory
Board to which the appllcalion will be presented, as follows:
(Wst ~me of Commissioner 01' Advisory Board Member) who serves on the
(List City Commission or City Advisory 80ard upon which member ""rves).
The nature of ttle Business Relationship is as follOlNs:
[I i. Member of City Commission or Soard holds .n ownership Interest in ex""s of t % of lolal assels or capital slocl<
of Applicant or Representative;
{I ii. Member of City Commission or Boerd Is a partner. c,,"shareholder (as to ,hares of a corporation which are nol
IIs1ed on any nationa! or regIonal stock exc;:hange) or Joint venlurer with the Applicant or RepresentatIve In any
business ven1ure;
[] ili. The A~plicant or Representative is a Client of B member ot 1he CI!y Commission or BDard or a Cllent of ",nattier
professior'lal working from the same office or for the same employer as the member of the City CommissIon or
Boarn;
I] Iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
11 v. The Applicanl or Rop",,,,,nlallve Is a Customer of Ihe member of Ihe City Commission or Board (orof his or her
employer) and transacts morll than $10,000.00 of lIIe business af Ihe member afthe Chy Commission or Soard (or
his or her employer) in a given calendar year;
[ J vi. The member of the Clly Commission or Board is a Cuslomer of Ih. Applicanl or Rap",sent.ti'. and Iransacts
more then $25,000.00 of the busin..s oIlhe Applicanl or Represenlatlve In a given celendar year.
WITNESS MY HAND THIS z.., DAYOF 7...."......1 .2006.
::~d~ ~
CARL SKILES
Engineer
1~lgn.lure)
'The terms "Busin.ss Relationship: .Client: 'Customer: "Applicant: "Representative" and "Intemsted Person" are de~ned in
Seotion 2-395 of the Aventu," City Code.
19-A
MIAMI 971853.2 7592420873
.
'~--~--T-.-..-~_.~..
----r
01/27/2005 Og:34
3054555505
UPTOWN MARINA LOFTS
PAGE 03/05
WITNESS MY HAND THIS 2;/ DAY OF ~ 4NV 1l1l.4 .2006.
/
REPRESENTATIVE: (Listed on Business Relationship Affida~l)
By: (Signature) By: (Signature)
R.T. BRINKLEY. II DAN FORTIN, JR.
Developer EnginHr
By: (Sl9na'ur.) By: (Slr/natu",!
JACQUES CLAUDIO STIVELMAN CLIFFORD SCHULMAN
Developer Attorney
By: (Signsw,") By;
GILBERT BENHAMOU
DevelOper
By: (Signatu,") (Signatul9)
STANLEY B. PRICE
AllDm.y
By: (Signstu",)
BRIAN S. ADLER
Attomey
By: (Signa/urn) By: (Signatu,")
ROBERT L. KRAWCHECK
~
B . nature)
CARL SKILES
Engineer
NOTE: 1) Use duplicate shll8ls If disclosure in10rmation for Rap.....nt.ti.e vanO$
2) Applies,n,. .nd Atl'ionts arc .dvi,od to timely supplement this Affidavit pursuant 10 See. 3 1.71 (b)(2Xiv) of
the City's Land Development RcgutatiQTIs in the City Code, in the event that prior to consideration of the
application by the City Boord or Commission, the information provided in the Affidavit becomes incorrect or
incomplete.
27 -Co
MIAMI 971853.2 7592420873
01/27/2005 09:34
3054555505
UPTOWN MARINA LOFTS
PAGE 05/05
_,."..._...___...._,.~"......,_"". '-0.."", ...__.. __... __ ._._._._'-__...._.... -...
"R_"_R___''''''_'_'___ ,_,___,_ :,~...'_
SlATE oF FlORIDA
COU1m' OF MIAMI-DACE
BlIIoro..., tho ,"",.IS~ IIlIIhDlfly, p.nonony appearod. BRIAN S. AotER, tl1e A~tII8r1l, who betnglllsl ""'dull """"" (lid .....'o,oflimthot......._
~Amo.'IIIforlho__II1.IIlk1.nd1llol~181l'U..nd"'lTOCI. - ~ ~
B . ACllER
BWOR~ TO AND SUBSC1\!SED bokn me ,,~Q d"~ 2006, r
NoloJyPbllIlcS ofF~A1J.a/lll1I'~;
LF: ~ 04!-?"".6LtY/G /......
PI1nIod~.ot'NollJy
My commirlalol1..pl"",
....-:l.v...., ELlZABElllllllTlZ
'~'D':"""'> t.\YGO!o\MISS\aN#DD'~
";. :> E)lPlF1Es:O""mb"17,~~
~i.r... ,~Tln'U1"\d'JII1d'n~IftrlCl"
--r'.iff.,foi"
STATE OF FLOFlIOA
CtlUNTY OF MlAMI.tWlE
)
l
Before mo,lI1e 1IIJlIoi:ll!lnod allll1ollty, 1I""""1Iy oppeorod, CARL SKlLE~ loot by ll1Il ouly........ did """",or ofIIrm lho,h%l1O uecullld
1hf'AlIIdavRlor1l1o"""""",slak!dlllll/1inand\halIIoIniOandcomi:l '" ~~
CARL SKILES
lLw /J .
211ll8.. / 'J
, kFI ;; Ldl
NotlIJy Public sta'ol ol Fbrlda Al Li.gO
PI\mlld No....ol NtlIaJy
Mye,,,n.*''''' ....1"":
SWORNTO IIND SUBSCllI9E1l bolO.. mo1h~ d 01
~,: SUSAN P. KiPN
~ );J. MY COMMISSION #Dm07\R4
"'0~ EXPIRES: Aprtl Ob. lOOK
I.~.~~t~(il~.n [-I N(}tar~; lJ"'''LM ^--'SOC. C<l
",.<",_".."._'"\.'-'_ ~ ."."_"'" ",''-,",.f'"
IOTA'lECfFtORIllII
COUtm' Of "'IAMI.QADI!
_ me, 1110 ......UO 3llI1aly, """"",",I\' Oppoalll<l, DAN FOR!JIi..oIIIo, ., AIlIant who bolng flral Of m" du~ """"" did ...... or IIfIIIm 1het hoIoh.
"O"'iI!<lIhllAIIdoviI""lhePUJPOll"'ll!lIiIld_ln.ndlll8l.b""~ ~~~~ ~
DAN FORTIN. JR. '
SWORNTOANOSUBSCRIBEDbIllorumo.t6 dll)'~1I1lll1 2OCtI. r~ . ---
IoIoIaJy oIFP<1doAtLaI1JO
PilnlodN....oI_Jy
My """"",,*,n ....:
5lJ-~ .
. . ..,._..r .eel,n-
~.~ EllIlM_OO.DJ7
!!TATeOfFl.ORI!lA
COUNTY OF MlAMI.QAD~
BlIfom mo, the und""lgnod allll1ilrll)/, _lllIlIy IJlflOBmd,
...r1I\DdtioMlldavll for \he p_1IilIIod 111_ and.1hlll R 10 "'" and_
'tho AIllant, w!lo baing 11101 by me dUly......, did _, or _ 1118I h...h.
SWORN 'to AtoIO SUBSCRIBED bafDro me \hI. _ dIIY of
2D08.
NDlaJy PullllcSlOIIl of fllXlda At Largo
Pnnlold N_ofNotary
29 -"b
MIAMI9718~3.1 7592420873
- -- .. -..._y_.. '....T-- -- --- ~-'--'"T"'~'''''' ""f"-""-
.
flfifiL/Z!:: D
,bf r ~-~
RESOLUTION NO. 2006-08
RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF A VENTURA, FLORIDA, CONCERNING
MORATORIUM WAIVER APPLICATION OF
SHEFAORffARRAGON, LLLP, PERTAINING TO
LINCOLN POINTE PROPERTY CONSISTING OF 8.77 :t:
ACRES LOCATED AT 17900 NORTHEAST 31ST COURT
IN THE CITY OF A VENTURA; GRANTING
APPLICATION FOR WAIVER OF MORATORIUM
ORDINANCE NUMBER 2005-07, SO AS TO PERMIT
REDEVELOPMENT OF THE PROPERTY TO A PROJECT
CONSISTING OF A TOTAL OF FOUR HUNDRED SIXTY
(460) DWELLING UNITS, INCLUDING A TWENTY EIGHT
(28) STORY RESIDENTIAL TOWER WITH AN OVERALL
HEIGHT OF NOT GREATER THAN THREE HUNDRED
FIFTEEN (315') FEET; PROVIDING FOR AN EFFECTIVE
DATE
WHEREAS, pursuant Section 3 of Ordinance No. 2005-07 (the "Moratorium
Ordinance") Shefaor/Tarragon, LLLP (the "Owner" or "Applicant") has applied for a waiver of
the Moratorium Ordinance (the "Waiver") in order to permit redevelopmen1 of Lincoln Pointe
(the "Property"), approximately 8.77 acres located at 17900 N.E. 31st Court, Aventura; and
WHEREAS, following proper notice, the City Commission has held a public hearing on
the Waiver Application, as provided by the Moratorium Ordinance and the City's Land
Development Regulations; and
WHEREAS, the City Commission hereby finds that the grant of the Waiver is consis1ent
with the Comprehensive Plan of the City of A ven1ura; and
WHEREAS, the City Commission, in accordance with the procedures and criteria
provided by Section 3 "Waivers" of the Moratorium Ordinance, hereby finds and determines that
the criteria of Section 3 of the Moratorium Ordinance have been me1 by the Applicant, to the
extent that the Waiver is granted herein.
Resolution No. 2006-08
Page 2
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS:
Section 1. Recitals AdoDted. That each of1he above stated recitals is hereby adopted
and confirmed.
Section 2. Waiver Granted. That pursuant to Section 3 of the Moratorium Ordinance,
the application for Waiver is hereby granted for the Property which is described on Exhibit "A"
attached hereto, subject 10 the condition that the redevelopment shall be accomplished in
accordance with the obligations and conditions which have been imposed upon Applicant, in the
event of this Waiver being granted, pursuant to the Applicant-City Settlement Agreement of
January 19, 2006, and subject to the condition that the Applicant shall prepare and present 10 the
City Manager on or before March 15,2006, an alternative building layout design, for acceptance
and approval at the City Commission's discretion, which provides for not more than four hundred
sixty (460) dwelling units, as authorized herein, but which includes a reconfiguration of the
residential Tower to a Tower building width which is generally not to exceed 400 feet and to a
height no1 10 exceed thirty five (35) stories. If the Commission does not approve said alternate
building layout design within thirty (30) days of submittal, the initial Tower design which is set
forth in the Waiver Application shall be further revised to mee1 the concerns of the City
Commission and the initial Tower design of approximately 900 feet in width shall not be used.
In considering said alternative building layou1 design for the purpose of determining whe1her 1he
above-described reconfiguration should be approved, the City Commission shall utilize the
public hearing procedures which are provided by Section 31-71 of 1he City Code, and shall make
2
Resolution No. 2006-08
Page 3
said determination by subsequent Resolution of the City Commission. The subsequent
Resolution of the City Commission shall not exceed the scope of the purpose of the
considera1ion of the alternative building layout design.
Section 3. Imnlementation. That the City Manager is hereby authorized to cause the
issuance of permits in accordance with the approvals and conditions herein provided, and
pursuant 10 the City's Land Development Regulations in effect and applicable as of the date of
this resolution without the application of the moratorium, and 10 indicate such approvals and
conditions upon the records of the City, and to take any action which is necessary 10 implement
this Resolu1ion.
Section 4. Effective Date. That this Resolution shall become effective immediately
upon adoption hereof.
The foregoing Resolution was offered by Commissioner Holzberg, who moved its adoption.
The motion was seconded by Vice Mayor Joel, and upon being put to a vote, the vote was as
follows:
Commissioner Zev Auerbach
Commissioner Bob Diamond
Commissioner Harry Holzberg
Commissioner Michael Stem
Commissioner Luz UrOOez Weinberg
Vice Mayor Billy Joel
Mayor Susan Gottlieb
~
~
~
ves
ves
~
no
3
Resolution No. 2006-08
Page 4
PASSED AND ADOPTED this 2nd day of February, 2006.
Susan Gottlieb, Mayor
Attest:
Teresa M. Soroka, MMC
City Clerk
Approved as to Form and Legal Sufficiency:
City Attorney
Filed in the Office of the City Clerk this 3rd day of February 2006.
City Clerk
4
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
.Q /JCJ fa
I .
City of Aventura City Commission Meeting Date
Agenda Item No. 3
Date of Verbal Communication: ::/;" n t/Pd/ :3 C! - "Fe,,{ /-1/""7 -::- ;)?' "''''
Identity of Person or Entity Making Communication:
/V't/7?/c-'rc.r/S Der->-O:>7, 0'7" (V',LL/q;tooS /'--;,-./<",,cV -/Jqd?oC/y-s
/
(,:?,rc-- v7c,
Subject and Substance of Communication:
06,<",7>077" .6~'o'o/ /./..;>P.>- '7~",,//""';r~ rC".H. 'T,-,S"7/v?-70'-
v ""'? ./ CP .-'
Filed this
I
day of
Respectfully,
Commissioner or Board Member
receiving communication:
-
>)-;,6",~. 7. // /" d'.-- c 7d
Name ~",.6e;r c!J/p':>-.v,n<V
C /7"i:--r::/ ~~J
~Signature /~
/: ,_.
. J[)
" ' 2P. /'f .1-
\ I' ,./ I ,I /
Ii /'. 6-..' ',!\~
Te~ sa M. Soroka; MMP, City Clerk
" I '''-._
'-'
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
City of Aventura City Commission Meeting Date
Agenda Item No. 3
Date of Verbal Communication: }'If ~ ~
Identity of 'person or Entity Making Communication:
V~
Subject a~e O~;::~c::tion:
Filed this
I day of
Respectfully,
:J.t/o c-
Commissioner or Board Member
receiving communic tion:
Name
'i?J LL V .:JD c. L-
Sh9nature
4~~ 0
, II , <10 .
i //
f.
T resa M. Sorok
/) \
D.ISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
City of Aventura City Commission Meeting Date
#- '/-cf cf
Agenda Item No.
!)
Date of Verbal Communication: 0 /- ..2 '1- J &'
Identity of Person or tity Making C
Ii it/u~ ~
Subject and Substance of COl1}munication:
"L' /.-u <' 0 / ,.u
~ ; .v~1?
,,/
~/
Respectfully,
Filed this
J
day of
Commissioner or Board Member
receiving communication:
/1/;/I/,< V 4,dz~~?
Name ' > / .: ./,~~7
./~ ..r.~.----_' /' A'
signatcJr~C '/;:r/'-:: ~/
~ ./;
,jJf7MtUJ.f ,/loA (,. ('! I)
I / ~ ~cU/~
Ter~S'E(M. Soroka, Mfv1C, City Clerk
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
City of Aventura City Commission Meeting Date {; d - 0 /~ cf G
Agenda Item No. .3
Date of Verbal Communication:
('J ~ - c7 /- c1- c:
Identity of Person or Entity Makin
/
mmunica.1ioJJ;. /
U /,rJ',v / fi, A'
Subject and Substance of . ommunication-2._
" c,;,.v'O,,'1/~
~ ~
t?(/:~) C J /1'/ 10// ~~, 71? !/ /;:f, /
/ ,
Respectfully,
Filed this
I
Commissioner or Board Member
receiving communication:
~,2fC v Af{~kd C/
me / ' /
Na e . ~.--').~~
" ..... -:/
r' ........~-;,. ~..~... ~.?
Signaturel F 7 i/
(
~. r.
I /, 2tJo'i. ! Ii
/ \' '.
" ./ } //
, It. iL!~(h
;reresa M. SQ('ok~, M C, City Clerk
day of
--_/
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
City of Aventura City Commission Meeting Date cf ,~ - (7 / - c/ 6'
Agenda Item No. ?
Date of Verbal Communication: () d - {J / - (/ 6'
Identity of Person or Entity Makin~communication:
/J'tr / ;7?' // r v tJ.e/
/
Subject and Sub~ce of C.9mm~icatio.!1-
'-~/ ,urd /,.v 10 1Jl/ /.-1Z-
,
. ~;
..fA ~ r m fi7R' ".v T ,nv
.
'I"Y I~XA
Respectfully,
Commissioner or Board Member
receiving communication:
Filed this
I day of
~R,", v ~bkK tf-
I / f
Name /"._-, _ ~
-'~ .~~
,_>(!"::?~ / c1/Z-~
Yhature . - ~.---
~ ~/ ,L!>O~.I;
i. ,~:Jt/\G- )~~~~
feresa M. Soroka, MMC, City Clerk
'-" ~/
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
City of Aventura City Commission Meeting Date 1 J - (:1 j- t:1 6
Agenda Item No. 7
Date of Verbal Communication: tI ~ - tJ / - c/ C;
Identity of Person or Entity Making Communication:
12 a -,
/lA/ v ~ //,;v
"
Subject and~stance of Commu~icati.on:
~/'# C {1~ j~J( "vf..-e
f~ c.~ //(..R.v /'C~;#'; /l~
, / '
Respectfully,
Filed this
! day of
Commissioner or Board Member
receiving communication:
///.e /{./ ,4~ ~/G ?
Name /~ .'.'/~- )4-.
Signat:r~(=an~, 7c ~/?/
~ . ./(
':::f~' L)ooh./)
/:JtClG/J(,l !~,
/Tetesa M. S6roka,~MC, City Clerk
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
City of Aventura City Commission Meeting Date
Agenda Item No. 3
::&.1/'><.L-C../t....; c;! 0200 C.,
~ I
~tL
Date of Verbal Communication: '~-W1.kLj dr:f
o
Identity of Person or Entity Making Communication:
IY}.e. tlf. ~~1~-
Subject and Substance of Communication:
v;! fwd t-/cUJ ~ ~ ~ d
J tf'7I.-<<-e~,! ) 9 t .
~14'-~~
,
Respectfully,
Commissioner or Board Member
receiving communication:
Filed this
Ignature
I day of c:J-..L/AAu'/Atf ' ..2oo.t;-;,:
f
T esa M. Soroka, MMC, City Clerk
a/C.
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
City of Aventura City Commission Meeting Date ~~ndl ;If .;2tJc) 0
Agenda Item No.
.5
Date of Verbal Communication:
1/.2t?/t70
, ,
Identity of Person or Entity Making Communication:
fJ}e. I?tt..{.~ !ftit~~1
Subject and Substance of Communication:
~ 7f:U,au..'[) et .t1t~n_~.Je<-ftffi0 CbULI
.. A keJ . ~:.r4CLt.f2V,V-GI /J.A
VJI) .u) ""1 . ~L:- /U-,v I 'J .
() f' .
Respectfully,
/YlM tAL
CCJYJt 1Uuz.~uhL/
Filed this
/
Commissioner or Board Member
receiving communication:
:s" "J ~~..
/~ .~ /l'CJ& IC
ignature ( 1
c9~L';7 ' .. c4JO t, I
~ .C- .~~~~
T resa M. Soroka, MMC, City Clerk
day of
/
01/27/2005 09:34
3054555505
UPTOWN MARINA LOFTS
PAGE 02/05
1-t.e.M... ~ ~
.
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavil is made pursuant 10 Section 31-71(b)(2XH) of Ihe City of Aventura Land Developmant Code. The und....igned Affiant hereby discloses th.t:
(mBI'k with 'x' applicable ponions only)
IX! t. Afflanl does Dlll have a Business RelaUonship wilh any membel of lhe City Commission or any City AdVisory Board to wllIch
the application will be presented.
I J 2. Affiant hereby discloses that il does have a Buslne" Relationship with a member of the City Commission or a City Advisory
Board to whioh Iha applleation will be presenled, as follows:
:;
(Ust -name of Commissioner or Advisory Board Member) wIlo serves on the
(List City Commission or City Advisory Board upon whioh member ..rve,).
The nature of the Business Relationship is as follows:
[ I i. Member of City Commission or Board holds an ownership Inleresl in ex,,".. of I"!. of total assets 01' capital slocl<
of Applicant 01' Representativa:
{] Ii. Member of City CommlssiOll or Board I, a partner. oo-shareholder (as to shares 01 a corporation which ara not
listed on any nalional or regional steck ..change) 01' Joint venlurer with the Applicanl or Representatl,e In any
business ventu~; ,
[] ili. Th. Applioant or Representativ. is . Client of a member of the City Commission or Board or a Client of another
pItl/esslor1ai wor'<ing from the same offICE! or for the same employer as the member of the City Commission or
Boam:
I] Iv. A City Commissioner or Board member is a Client of the Applicant or Representati,e:
I] v. The Applicant or Representative Is a Customer of Ihe member of the City Commission 0< Boan:! (OI"of his or her
employer) end transacts monllhan $10,000.0001 th. buslne.s ofth. member of the ClIy Commission or Board lor
his or heromployer) in a given calendar year,
I J vi. The member of the Cny Commission or Board is a Customer of tha Applicant or Represenlati"" and Iransacts
more than $25,000.00 of tho business of the Applicanl 01' Represenlatlve in a given calendar year.
WITNESS MY HAND THIS z.~ DAYOF T"'''V'''f'''j ,2006.
:~~~J
CARL SKILES
Engin$er
I",gnetura)
"The lenns 'Bus;ness Relationship," 'Client: "Customer: 'Applicant: "Representalive" and 'Interested Person" are defined in
SB(;tion 2-395 of the Aventura City Corie.
19-A
MIAMI 971853.2759242087:>
01/27/2006 09:34
3054666606
UPTOWN MARINA LOFTS
PAGE 03/05
WrrNESSMYHANDTHIS ;},31 DAY OF ~ANV.sJ!..'1 2006.
I
REPRESENTATIVE: (Usted on Business Relationship Affidavit)
By:
(Signature)
By:
(SignatU1e)
R.T. BRINKlEY. 11
Developer
DAN FORTIN, JR.
Engineer
By:
(Slgnalure)
JACQUES CLAUDIO STIVELMAN
Developer
By:
{Signature}
CLIFFORD SCHULMAN
Afforney
BY:
{Signature}
By:
Signature}
By:
{Signature}
{Signature}
GILBERr BENHAMOU
Dsveloper
By:
{Signalure}
STANLEY B. PRICE
AlIwnoy
BRIAN S. ADLER
AlIomey
By: (SigllSture)
ROBERT L KRAWCHEcK
/"'forny ./ /2 ~ ~
aL~ture)
CARL SKILES
Engineer
(Signature)
NOTE: 1) Use duplicate ahlllllslf disclosure information for Ropr..ontative varies
2) Applicants and At1'ianlS an: advisod to timely supplementthls Affidavitpursuanllo Sec. 31.71(bX2Xiv) of
the City's Land Development Regulations in the City Code, in the event that prior to consideration of the
application by the City Boo:d Qf Commission, the infoflnation provided in the Affidavit becomes inc.orrec:t or
incoml'le[e.
27 -Co
MIAMI 971853.2 7592420873
01/27/2005 09:34
3054555505
UPTOWN MARINA LOFTS
PAGE 05/05
._.__......_. _.....M._......_".,.__ ""___._.._....,._'_"":""_.~ .~_.~, .,_.. --.,. --. .---..---....-... -- .'_._.~--. ...---.----..,..'.,-----...---- "'---'-
stATE or: Fl.ORIOA
COU1m' Of """"""All5
Sobo n., "" UIId.~ 0lIIhDc1II. pOrolnltf IPPUrod. BRIAN s.AIll.ER,1ho A~lIIonI, wtJa betng1lllt modli( """"". dIf _.ror_lhothelol1oll:l\lCll1llll
1ItIAlIlda...tor1ho_&tlIlodtholllkl.nd1luJtftlotnJ.aml_. ~ ----= .
. B . ADLER
BWORNToAIIDSUBSCRle~Dbolllromil\~ 1"f~2006' r
~P'e' ~~1/i.
Pr1ntod~.O(NDlIlry
MrCOl11l11illo","""""~
STATE Of' FLOIlIDA )
CCUNTY Of MII\~E )'
Bel,,", 111ll.1he 1Dlo,*nod ouIhollty. pe"Of1IIIy _I"', CARlSKlLE~""'byl1'Ol dul)' """"',.......,...or _1I1I1_....,,1IlcI
lId'AlIIdovRfarll1o",""""",OUIEdlhllAlln.ndlhalllol'uBandcomid. /": ~~
CARl. SK1l.ES .
-~ ~
h../ .
~ryPublcSIG oIFbItclI t .. .
l'l11l!d N.....or tl<>Iary
Mr""""'*""'" up"
~#."..... SUSAN P. .
hi. MY COMMISSION # DD307184
.".,..... EXPIRES, April 06. 2008
1.~r~;':~wT~F' i-1. 1\ataryOiscounl AssQ<;. Co.
"'!"j''\.f'.''.~- ~ ......-." ...."'....
SWORN1OAIID&UBSCRlllEDb.lb'''lO''~ d '"
!;TA'lE Of FLDIl1llA
COUtm' Of MIAMI-DADE
_ me, 1l1Ir \I1dll\091lld auI!aIly. p<nclllIIIy eppooIod, DAN FOR~ , AftIont who b'*'ll1lro1 by ... d"~ ""'"" nil! .- or oIlI:m 1hGl hB/.118
......b!<llIl&lIIdM.IorIhoP_""k!d_...lilIlI1ollbW~ ~~~/I~ ....4
DAN FORTIN, JR. ,/
SWORtl TO AIIP SUllSCRlll8lbllllllumBI1is to day~lIlW 2OOlI. ~F . _____
NolaI)' '" Rold. At Loi1J8
~_"'JlaIory
My~--
6t--~ .
. . ..,.-.....J ,DBlan-
~.tI ~_1lO.2DlI7
STAte Of Fl.ORttlA
I:OlMY Of MIr\M-OAD~
Bm", me, lI10 ~"1lIrS1good ~, _noIIy IpIl8I\Ied,
...C2If8dIlillAtlld"",,""1ho p___IIId.N\llowelllll_
1.1ho-'lllonl, who being lIr&llly... diJIJ_ did _0I'11I1rm1!18l he/Ilh.
SWORN 10 AND SLESCllIBEllIB!ulo 1110 Ililt_ doY aI
2D06.
NoloryPu*_lllFI_"tI.oJgB
PrfniodNorneol'NalBry
29 -~
MIAMI971853.1159242.0873
Page 10fl
Teresa Soroka
From: HAROLD RICHMAN [hrichman@hotmail.com]
Sent: Wednesday, February 01, 2006 1 :49 PM
To: zauerbach; bdiamond; hholzberg; bjoel; mstern; Iweinberg
Cc: Susan Gottlieb
Subject: Re: Lincoln Pointe
1 February, 2006
All City of Aventura Commissioners;
As a new resident of Williams Island, I strongly protest your action concerning the above referenced
project. I am appalled a1 your total disregard for the welfare, safety, and the right of enjoyment to which
we are entitled.
I ask that you reconsider your poor decision and allow a 60 day continuance to enable a proper Impact
Study to be done, to appropriately guide a future resolution to this most serious matter which affects so
many people in the surrounding area.
I commend our Mayor, Susan Gottlieb, for her courageous stand against this abhorren1 decision made by
all of you. I am sure that it will be remembered at the next election.
Sincerely,
A. Richman
6000 Island Blvd.
Unit 2503
Aventura, FL
2/1/2006
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
luzweinberg@aol.com
Wednesday, February 01,2006 9:44 AM
Teresa Soroka
Subject: Fwd: Lincoln Pointe
Teresa, please add this to the list. I just picked it up from my private email.
Thanks,
Luz
-----Original Message---n
From: Marshall1231
To: Judge RD
Cc: LuzWeinberg
Sent: Tue, 31 Jan 2006 9:46: 16 PM Eastern Standard Time
Subject: Lincoln Pointe
1/31/06
Dear Bob;
I appeal to your judicious predisposition to sponsor a motion to continue the quasi-judicial hearing tomorrow night
for a ieast sixty (60) to allow the publiC and interested parties to prepare and present evidence on the issues
subject of the proposed Settlement Agreement with the ShefaorlTaggagon, the developer, to wit, whether or
not .....the specific use or activity requested by the Waiver Application [of the Moratorium] will not detrimentally
affect the preparation and implementation of the Growth Management Regulations.... will be compatible with
surrounding land uses., and will not impair the public health. safety or welfare."
How can the Commission make such a determination in a period between January 23, 2006. (the date of the
Application For the Waiver) and February 2nd when no one. except the developer, has time to prepare for the
..triai"? Is the public being afforded due process? Or are we on a Railroad?
We just had a presentation at the 1 000 Building by the architect and attorneys for the developer. This is a building
gOO feet iong (3 football fields) and 28 stories high, wrapping the entire Lincoln Point peninsula and eliminating
the sunset for the 7000. 6000, 4000 and 3000, Buildings. The garage will accommodate 1000 vehicles. NE 183rd
cannot support the existing traffic and Peninsula II coming on line in a year or 2 with 300 +/- more units and 1000
more cars.
Remember, you had the foresight to advocate the Moratorium, I urge you to follow through to effect its purposes.
Keith
P.S. Tonight The Wms Island POA unanimously approved a resolution to retain counsel to request the
Commission to continue the hearing because the proposed Settlement Agreement also effects the POA's
property rights in the NE 31st Court, the entry Road to Biscayne Cove and Lincoln Pointe.
2/1/2006
January 23, 2006
YD~0
\~iSt Vf
[4Y f J,/\ cJ R ~
Kt: L L ~ P- Nt
:, \ ,A. 11 5Joq
rL )'5f60
T""' r
--
City of Aventura Government Center
19200 West Country Club Drive
Aventura, FL 33'180
RE: Applicant Shefaorrrarragon LLP request for a waiver from Section 3
of Moratorium Ordinance No. 2005-07
Gentlemen:
The purpose of this letter is to object to any waiver to the Moratorium
Ordinance #2005-07 to permit redevelopment of the property known as
Lincoln Pointe. .
The reason for the above request is that we have one narrow exit to l,lS 1
that in itself poses a risk to the present residents of this "cui de sac': in'case
of an emergency evacuation. In addition to this, parking is so limited at the
present time, that adding new unlimited residents with multiple cars to this
small contained compound is against any reasonable accommodation. I
am sure the Fire Department is not compl~cent to this proposal.
. .
As it is right now, the above two reasons make for the present population a
stressful moving in and out a daily chore specially in rush hours. The lines
trying to get out to US1 is incredible, compounded by the STOP sign near
the exit. Add to that the snow birds yearly move to this area, brings the
whole daily episode to a chaotic exercise.
I hope this letter will. be placed on record, as an absolute negative to a
waiver from Section 3 of the Moratorium Ordinance.
01~ ~iiw.~
JAN 27 2006
OFFICE Qf r tit
CITY M.A.NAGfR
~ -
- -
,
. .
::....~
~:.-
"'IfIt
,qrf; fJ--r; Vf.,ll/ / _ Z. 3~ 0 ?, /
. c~;y of f/r6,J\u~q (;cvtfl,mUvT L'tiUf6~1
<:20tH.fY/ lJ(t}jry tCrJc"J...oPI11C'fJ/ cbfPI.:
r.Cf' f;R t: IV C c: 70', .: ~ b F I7DK (1~R..1Q1G:::' :'1 p .1.:.....
fllVCo/..1II POII')/O .:.
j:.
1/J R6F6Rc.l1Jc(;' 10 R,E{J2//€- ~PtYj6/UT Dr)'
'FRoPG'RTr !<lVvU.HV fl9:. 1'j./tVeJ",nJ POltV!t: .J
uJ t5' Tho I il ~C7,? i ItJ €n C f! u'L- fJ rr 5 I I
C.oOflJPiwt; ::Dls{J6Rt:t:.fI7t::IIJT. J
. --
lJJ;' fOSi..i~l!e fROft5~TI0\JIA~"V~ t-v iff <:.~
5 lJ PJQ..(} U tV. :D IAI b fiR. 61-1S 1M'€, Gv1j" 6-11J () u T
of do f/J rR.b~ ~~ we c iTf IS f1)..,I{[f)..!JJi
o OGR 1;>0 P u !.f7T t;: )J -
~/I// Cc: REJv(~
t:JAI)~ /} f/~ ~{nlru Coo c!f,./I'l.._
rO(';Ji eA5!. f1riiv-r::RA
-
:. :....-
-.:.:---0-
~
Page 3 of3
Jan 26 2006
Ellis Paul Sammartino
29 Lillian Place
Glendora N.J. 08029
This letter concerns the application of "Lincoln Pointe" I 7900NE 31 Court, City of A ventura.
I'm sorry I cannot attend 1he meeting on Feb, I 2006 bu1 I'm very concerned for the already
crowded situation in our neighborhood and definitely need no more buildings of any kind.
I'm hoping that i1 will be voted down and slow the construction in our community.
In 1986 I bough1 my apartment in the Tower building 18181 31'" C1 .
Cordially
(tGPJ.~
I
1/25/2006
Moises Pitchon & Adela Pitchon
18151 NE 31 Ct, Apt 1001
Aventura, Florida, 33160.2600
Tel.: 305-9329710 Fax: 305-6925860 Email: Qelardin@abbmail.com
C(:J C,ry 1.-_
T~S.
ToCL.- c.c.-.-
O-.,....l t..l.I.
January 23, 2006
F
City of Aventura Government Center
19200 West Country Club Drive
Aventura, FL 33i80
RE: Applicant Shefaor/Tarragon LLP request for a waiver from Section 3
of Moratorium Ordinance No. 2005-07
Gentlemen:
The purpose of this letter is to object to any waiver to the Moratorium
Ordinance #2005-07 to permit redevelopment of the property known as
Lincoln Pointe.
The reason for the above request is that we have one narrow exit to US1
that in itself poses a risk to the present residents of this "cui de sac" in case
of an emergency evacuation. In addition to this, parking is so limited at the
present time, that adding new unlimited residents with multiple cars to this
small contained compound is against any reasonable accommodation. I
am sure the Fire Department is not complacent to this proposal.
As it is right now, the above two reasons make for the present population a
stressful moving in and out a daily chore specially in rush hours. The lines
trying to get out to US1 is incredible, compounded by the STOP sign near
the exit. Add to that the snow birds yearly move to this area, brings the
whole daily episode to a chaotic exercise.
I hope this letter will be placed on record, as an absolute negative to a
waiver from Section 3 of the Moratorium Ordinance.
I remain,
Since y yo s,
Moises PI c o~ne Cove, Clipper Bldg, Apt. 1001
Copy to Clipper Bldg. Management. .
JAN 2 4 2006
OFfICE OF THE
lOllY MANAGElt
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
Cc:
Sylvia R Garcia 2 [sylviargarcia2@comcast.net]
Tuesday, January 31,20069:04 PM
mstern
Susan Gottlieb
Subject: Lincoln Pointe building proposal
Dear Commissioner.
We want to express our opposition to the Lincoln Pointe proposal for the 28-floor, 450-plus residence "solution" to
their building issues with the City.
1) The area cannot viably absorb the resulting exorbitant traffic volume should the developers go
ahead, endangering Williams Island residents' access to emergency services such as medical, fire and police
responses.
2) Issues regarding property rights of the Williams Island community cannot be settled between the City and the
developers without involvement of the Island community.
We urge you to vote against this latest proposal and support adherence to the new planning limits on new
construction.
Sylvia & Argelio Garcia
2000 Island Blvd, Apt 909
Williams Island,
Aventura, FL
2/1/2006
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
Sylvia R Garcia 2 [sylviargarcia2@comcast.net]
Tuesday, January 31,20068:50 PM
Susan Gottlieb
Subject: Lincoln Pointe building
Dear Mayor Gottlieb,
We want to express our support for your reported position against the Lincoln Pointe proposal for the 28-floor,
450-plus residence "solution" to their building issues with the City.
We urge you to vote against this latest proposal and continue supporting adherence to the new planning limits on
new construction.
Sylvia & Argelio Garcia
2000 Island Blvd, Apt 909
Williams Island,
Aventura, FL
2/1/2006
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
Cc:
Sylvia R Garcia 2 [sylviargarcia2@comcast.net]
Tuesday, January 31,20069:02 PM
hholzberg
Susan Gottlieb
Subject: Lincoln Pointe building proposal
Dear Commissioner,
We want to express our opposition to the Lincoln Pointe proposal for the 28-floor, 450-plus residence "solution" to
their building issues with the City.
1) The area cannot viably absorb the resulting exorbitant traffic volume should the developers go
ahead, endangering Williams Island residents' access to emergency services such as medical, fire and police
responses.
2) Issues regarding property rights of the Williams Island community cannot be settled between the City and the
developers without involvement of the Island community.
We urge you to vote against this latest proposal and support adherence to the new planning limits on new
construction.
Sylvia & Argelio Garcia
2000 Island Blvd, Apt 909
Williams Island,
Aventura, FL
2/1/2006
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
Cc:
Sylvia R Garcia 2 [sylvlargarcia2@comcast.net]
Tuesday, January 31,20069:05 PM
Iweinberg
Susan Gottlieb
Subject: Lincoln Pointe building proposal
Dear Commissioner.
We want to express our opposition to the Lincoln Pointe proposal for the 28-floor, 450-plus residence "solution" to
their building issues with the City.
1) The area cannot viably absorb the resulting exorbitant traffic volume should the developers go
ahead, endangering Williams Island residents' access to emergency services such as medical, fire and police
responses.
2) Issues regarding property rights of the Williams Island community cannot be settled between the City and the
developers without involvement of the Island community.
We urge you to vote against this latest proposal and support adherence to the new planning limits on new
construction.
Sylvia & Argelio Garcia
2000 Island Blvd, Apt 909
Williams Island.
Aventura. FL
2/1/2006
Page 1 of 1
Teresa Soroka
From: Sylvia R Garcia 2 [sylviargarcia2@comcast.net]
Sent: Tuesday, January 31,20069:03 PM
To: bjoel
Cc: Susan Gottlieb
Subject: Lincoln Pointe building proposal
Dear Commissioner,
We want to express our opposition to the Lincoln Pointe proposal for the 28-fioor, 450-plus residence "solution" to
their building issues with the City.
1) The area cannot viabiy absorb the resulting exorbitant traffic volume should the developers go
ahead, endangering Williams Island residents' access to emergency services such as medical, fire and police
responses.
2) Issues regarding property rights of the Williams Island community cannot be settled between the City and the
developers without involvement of the Island community.
We urge you to vote against this latest proposal and support adherence to the new planning limits on new
construction.
Sylvia & Argelio Garcia
2000 Island Blvd. Apt 909
Williams Island.
Aventura, FL
2/1/2006
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
Cc:
Sylvia R Garcia 2 [sylviargarcia2@comcast.net]
Tuesday, January 31,20069:02 PM
bdiamond
Susan Gottiieb
Subject: Lincoln Pointe building proposal
Dear Commissioner,
We want to express our opposition to the Lincoln Pointe proposal for the 28-fioor, 450-plus residence "solution" to
their building issues with the City.
1) The area cannot viably absorb the resulting exorbitant traffic volume should the developers go
ahead. endangering Williams Island residents' access to emergency services such as medical. fire and police
responses.
2) Issues regarding property rights of the Williams Island community cannot be settled between the City and the
developers without Involvement of the Island community.
We urge you to vote against this iatest proposal and support adherence to the new planning limits on new
construction.
Sylvia & Argelio Garcia
2000 Island Blvd. Apt 909
Williams Island,
Aventura, FL
2/1/2006
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
Cc:
Sylvia R Garcia 2 [sylviargarcia2@comcast.net]
Tuesday, January 31,20069:00 PM
zauerbach
Susan Gottlieb
Subject: Lincoln Pointe building proposal
Dear Commissioner,
We want to express our opposition to the Lincoln Pointe proposal for the 28-floor. 450-plus residence "solution" to
their building issues with the City.
1) The area cannot viably absorb the resulting exorbitant traffic volume should the developers go
ahead, endangering Williams Island residents' access to emergency services such as medical, fire and police
responses.
2) Issues regarding property rights of the Wiliiams Island community cannot be settled between the City and the
developers without involvement of the Island community.
We urge you to vote against this latest proposal and support adherence to the new planning limits on new
construction.
Sylvia & Argelio Garcia
2000 Isiand Blvd, Apt 909
Williams Island.
Aventura, FL
2/1/2006
Subj:
Date:
From:
To:
Lincoln Point and Minto development
1/20/20063:58:40 P.M. Eastern Standard Time
anweisz@bellsouth.net
bjoel@galenetwork.com, judgeRD@aol.com
Dear Sirs:
The purpose of this E-Mail is to clearly state my opposition to your
decision to allow the construction of a high rise at Lincoln Point
as well as your previous decision on the Minto Developers Building.
Your positive vote on these two matters is clearly against the
interests of the present inhabitants of Williams Island but even
worse it is against the interests of all of the residents of Aventura,
who will see their "city of excellence" converted into an ugly and
untenable "Manhattan South".
Just because you are threatened by a lawsuit from the developers
of Lincoln Point, you dont have to run like frightened chickens and
do their bidding.
When we elected you as comissioners, we entrusted you with the
common good and not with the increase of the taxable property
base which means more money in the coffers of the city of Aventura.
I urge you to deny final approval to the developer of Lincoln Point
and act accordingto your sworn duty of defending the interests of
the city of Aventura and its residents.
Yours Trutly,
Andres Weisz
2800 Island Blvd.
Apt. 3002
Friday, January 20, 2006 America Online: Cupecoyx
Page 1 of 1
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Page 1 of2
Subj: A ROOM WITH NO VIEW
Date: 1/20/20062:59:14 P.M. Eastern Standard Time
From: kriya108@comcast.net
To: thesydneystyle@aol.com
Greetings Islanders:
The email below is from Mediterranean Village resident Burton Young. It
seems that two of our Aventura City Commissioners. Bob Diamond of the 3000
Building and Billy Joel of the 2600 Building have voted against Williams
Island residents in favor of the Lincoln Point Developer and allowing the
Lincoln Point Tower project to be built across from Williams Island adjacent
to Biscayne Cove Condominium.
For those of you who would personally like to ask your 2 fellow Williams
Island residents/City Commissioners (Billy & Bob) what motivated them to
vote against the interests of Williams Islanders, who helped to elect them
into office to begin with, you may email them directly at the following
email addresses. You may recall that it was the Aventura City Commissioners
that also voted to give Minto the green light too.
BOB DIAMOND judgeRD@aol.com
BILLY JOEL bjoel@galenetwork.com
Every single apartment on Williams Island that has windows that face west,
north, or northwest will lose part of their view by this purported 40 story
tower. It should add about 1000 cars going through our 183rd street
intersection in front of our front gate. Many apartments may also be cast
into the shadows during the early afternoon. It remains to be seen to what
extent the Island Club pool, Med Village Pool, and 6000 pools will be
affected by early afternoon shadows.
George Tower
Williams Island Residents Coalition
1NI0wners.com
>
>
> ---- Original Message -----
>
> From: Burton Young <mailto:BYoung@ybkglaw.com>
>
> To: bill steiner <mailto:Shestein@bellsouth.net> ; Carol Epstein
> <mailto:epsl67@bellsouth.net> ; INIDC306@bellsouth.net; Ed Davis
> <mailto:EdwardDDavis@aol.com> ; George Tower <mailto:krlya108@comcast.net>
> ; H. Joel Rahn <mailto:Jomarahn@bellsouth.net> ; Harvey Spear
> <mailto:harveyspear@yahoo.com> ; hman305@comcast.net; Janet Laine
> <mailto:JSKLLONE@aol.com> ; Kuttler. Myles <mailto:SmileK@aol.com> ; Robert
> Kramer <mailto:AJUB26@yahoo.com> ; Sydney Davis
> <mailto:TheSydneyStyle@aol.com> ; Abe3000@aol.com ; akluger@kpkb.com ;
> alvin.epstein@ubs.com; daa1318@aol.com; EdwardDDavis@aol.com;
> wfelder@bellsouth.net
>
> Sent: Thursday. January 19, 2006 5:29 PM
>
> Subject: Lincoln Point
>
>
> I was just advised that the Aventura Commission within the last 24 hours gave
Friday, January 20, 2006 America Online: Cupecoyx
Page 2 of2
> a pass and a release from the Temporary Moratorium for the construction of a
> multi-unit project at Lincoln Point. The vote was 5-1 with the Mayor being
> the only vote in opposition. Evidently. the Developer threatened to sue or
> did sue in order to escape the restraints of the temporary moratorium and the
> City thought it best to, in effect, cave.
>
> I was told that the City Attomey advised that a negotiated settlement was
> the better option since if the City did not prevail then the project at
> Lincoln Point would be more extensive. I was further told that there will be
> another Commission Meeting for this becomes final.
>
> This e-mail is just informational. It is not my purpose to lead a charge of
> protest...but it does not take a Rhodes Scholar to affirm what I. and many
> others. warned about before. The Temporary Moratorium was a political fake
> because it allowed exceptions. And now. the exceptions that it did allow, a
> majority of our Commissioner's are waiving under the banner of a
> "Settlement".
>
> When we see what will happen to the present residents at Lincoln Point. the
> residents of Williams Island when the Minto project starts, and with the
> present construction underway at the end of Williams Island Blvd.. there
> will be created a major threat to our health, welfare and safety (and almost
> additional traffic problems that will be permanent in nature).
>
> It just boggles the mind that a majority of our Commissioner's can make
> judgments. wittingly or unwittingly, like this one which is so deleterious
> to the people that they represent. The argument that a negotiated settlement
> is better than risking an adverse Court judgment in a situation such as this
> is nothing more than a bunch of hogwash. They should take a risk for the
> people that they represent. If the City lost and Lincoln Point was able to
> construct a larger project the same would not be much worse than the project
> that the City is no caving in on. It will be a nightmare either way. It was
> a logical and it would have been a courageous "people" act for our
> Commissioner's to take a risk that our Courts would come down on the side of
> the people which our Courts try to do when the health, welfare and safety of
> the people are involved. The Courts did so before. And the likelihood is
> that they would do it again. But our Commissioners don't seem to have that
> confidence and appear to be on another political track. And that is truly
> unfortunate. Burton Young
>
>
--- End of Forwarded Message
Friday, January 20, 2006 America Online: Cupecoyx
Page I of2
Subj: Fwd: Lincoln Point
Date: 1/19/20067:55:50 P.M. Eastern Standard Time
From: Abe3000@aol.com
To: bjoel@galenetwork.com. JudgeRD@aoLcom
~ Tell me this isn't true, and if it is, what the justification may be?
.'7; AI Epstein
Return-Path: <BYoung@ybkglaw.com>
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Content -class: urn :content-classes: message
MIME-Version: 1.0
Content-Type: multipart/alternative;
boundary="--- _= _NextPart_001_01C61 D4B. 79F0626C"
Subject: RE: Lincoln Point
X-MimeOLE: Produced By Microsoft Exchange V6.5.7226.0
Date: Thu, 19 Jan 2006 17:55:43 -0500
Message-ID: <254CE1CFAB598C48BE61 07 A88A8BD0581 D5873@server2.lawoffice1.local>
X-MS-Has-Attach:
X-MS- TNEF-Correlator:
Thread-Topic: Lincoln Point
thread-index: AcY dSsM7mjNuXGIES3KYaWKxgJt4ewAAsohw
From: "Burton Young" <BYoung@ybkglaw.com>
To: "Wilma Felde~' <wfelder@bellsouth.net>.
"bill steine~' <Shestein@bellsouth.net>,
"Carol Epstein" <epst67@bellsouth.net>.
"David Cohen" <widc306@bellsouth.net>.
"Ed Davis" <EdwardDDavis@aoLcom>,
"George Towe~' <kriya108@comcast.net>,
"Harvey Spea~' <harveyspear@yahoo.com>,
"Henry Kramarz" <hman305@comcast.net>,
"Janet Laine" <JSKLLONE@aoLcom>, "Kuttler, Myles" <SmileK@aoLcom>,
"Robert Krame~' <AJUB26@yahoo.com>,
"Sydney Davis" <TheSydneyStyle@aoLcom>. <Abe3000@aol.com>.
<akluger@kpkb.com>, <alvin.epstein@ubs.com>,
"David Aronowitz" <DAA1318@aoLcom>
X-AOL-IP: 70.148.135.218
X-Mailer: Unknown (No Version)
And well as it should be. Maybe that will stir them into some type of positive action. I was advised that our two
Williams Island Commission members voted for releasing Lincoln Point from the Temporary Moratorium and to
allow the structure to be built. Burton
From: Wilma Felder [mailto:wfelder@bellsouth.net]
Sent: Thursday, January 19, 2006 5:56 PM
To: Burton Young; bill steiner; Carol Epstein; David Cohen; Ed Davis; George Tower; Harvey Spear; Henry
Kramarz; Janet Laine; Kuttler, Myles; Robert Kramer; Sydney Davis; Abe3000@aol.com; akluger@kpkb.com;
alvin.epstein@ubs.com; David Aronowitz
SUbject: Re: Lincoln Point
Friday, January 20, 2006 America Online: Cupecoyx
Page 2 on
For the residents in 1000,2000, and Villa Flora, this is their Minto.
-- Original Message -
From: Burton Young
To: bill steiner; Carol Epstein; WlDC306@bellsouth.net ; Ed Davis; George Tower; H. Joel Rahn ; Harvey
Spear; hman305@comcastnet; Janet Laine; Kuttler. Myles; Robert Kramer; Sydney Davis;
Abe3000@aol.com; akluger@kpkb.com; alvin.epstein@ubs.com ; daa1318@aol.com;
EdwardDDavis@aol.com; wfelder@bellsouth.net
Sent: Thursday, January 19, 2006 5:29 PM
Subject: Lincoln Point
I was just advised that the Aventura Commission within the last 24 hours gave a pass and a release from the
Temporary Moratorium for the construction of a multi-unit project at Lincoln Point The vote was 5-1 with the
Mayor being the only vote in opposition. Evidently. the Developer threatened to sue or did sue in order to
escape the restraints of the temporary moratorium and the City thought it best to, in effect. cave.
I was told that the City Attorney advised that a negotiated settlement was the better option since if the City did
not prevail then the project at Lincoln Point would be more extensive. I was further told that there will be
another Commission Meeting for this becomes final.
This e-mail is just informational. It is not my purpose to lead a charge of protest...but it does not take a
Rhodes Scholar to affirm what I, and many others, warned about before. The Temporary Moratorium was a
political fake because it allowed exceptions. And now, the exceptions that it did allow. a majority of our
Commissione~s are waiving under the banner of a "Settlement".
When we see what will happen to the present residents at Lincoln Point. the residents of Williams Island
when the Minto project starts, and with the present construction underway at the end of Williams Island Blvd..
there will be created a maiorthreat to our health, welfare and safety (and almost additional traffic problems
that will be permanent in nature).
It just boggles the mind that a majority of our Commissione~s can make judgments. wittingly or unwittingly,
like this one which is so deleterious to the people that they represent The argument that a negotiated
settlement is better than risking an adverse Court judgment in a situation such as this is nothing more than a
bunch of hogwash. They should take a risk for the people that they represent If the City lost and Lincoln
Point was able to construct a larger project the same would not be much worse than the project that the City
is no caving in on. It will be a nightmare either way. It was a logical and it would have been a courageous
"people" act for our Commissioner's to take a risk that our Courts would come down on the side of the people
which our Court's try to do when the health, welfare and safety of the people are involved. The Court's did
so before. And the likelihood is that they would do it again. But our Commissione~s don't seem to have that
confidence and appear to be on another political track. And that is truly unfortunate. Burton Young
Friday, January 20, 2006 America Online: Cupecoyx
Page I of I
Subj: L1COLN POINT DEVELOPMENT
Date: 1/20/2006 7:59:55 P.M. Eastern Standard Time
From: myrashear@bellsouth.net
To: bjoel@galenetwork.com
TRAiTOR-TRAiTOR-TRAITOR! YOU AND DIAMOND SHOULD BE ASHAMED OF YOUR
ACTION!REGARDLESS OF WHAT THE DEVELOPER THREATENED! GET A PAiR OF
CAJONES!!!!!!!!!!!
MYRA SHEAR AND BRAD WALTERS
FREE Emoticons for your emaill Click Here!
,;::,~"'.:..~.~"'" @f,~ ~..(). ~~".
...' . . I~.. ....
.. _ ..r
Friday, January 20, 2006 America Online: Cupecoyx
Page 10f6
BILLY JOEL
From:
To:
Sent:
Subject:
"jerry." <jeruco3@bellsouth.net>
"DIAMOND, BOB" <JUDGERD@AOL.COM>; "JOEL. BILLY" <BILLY JOEL 13@GMAIL.COM>
Friday, January 20, 2006 10:44 PM
Fw: apparently, you two were not copied on this GT email/Fabric
Congratulations. You're now on Fabric's radar screen. He has totally lost it based on all his emails in the
last 2.3 weeks.
jerry...
---- Original Message ---
From: Phrases1@aol.com
To: JERUC03@bellsouth.net
Sent: Friday, January 20, 2006 9:54 PM
Subject: apparently. you were not copied on this GT email/Fabric
nnn Forwarded Message
From: DOCFAB2000@aol.com
Date: Fri, 20 Jan 2006 18:57:33 EST
To: kriya108@comcast.net
Cc: mindy279@msn.com, psquire22@msn.com, Spbaron@aol.com,
DHELEN572@aol.com, SnavePJ@aol.com, HGaventura@aol.com,
DONDBG52@aol.com, Joelhillman@aol.com, Houtkin@yahoo.com,
Jakepaulen@aol.com, jross@gbacllc.com, DRTRUPPMAN@aol.com,
BReich@williamsislandclub.com, CVidueira@Huizenga.com,
DAA1318@aol.com, DBSUTTIN98@aol,com,
Greg Ba n kh urst@wcicommunities.com, J EB2800@aol.com,
jjlgarcia@dadeschools.net, lI_allen@bellsouth,net,
mferna ndez@williamsislandclub.com, mjm@mindnet.org,
RodLWhite@aol.com, RSlavin3000@aol.com, ASher41569@aol.com,
bob. flo. werner@hwhome.com, Bubbe4838@aol.com, nskatty@aol.com,
DRHUGH@aol.com, HaIZelman1@aol.com, HENRILEVI@aol.com,
HStern4317@aol.com, LenoreT18@aol.com, Marfurshie@aol.com,
M MeisterM@aol.com, Silverpenni@aol.com, BYoung@ybkglaw.com,
JSKLLONE@aol.com, TheSydneyStyle@aol.com,
sgottl ieb@cityofaventura.com
Subject: Lincoln Point Tower Project
Hi Folks:
Unless you don't already know, the Aventura City
Commission voted
1/21/2006
Page 2 of6
5:1 to permit the Lincoln Tower project to proceed. A
very disappointing
turn around from the September 2005 meeting. Our
Mayor was the
only dissenting vote. I was not there and I am relying
upon Burton
Young, Esq.'s representations which I have no reason
to doubt.
I attended the Aventura City Commission meeting of
9/6/05 and actually
testified in front of the Commission along with many
other William Islanders.
I was later subpoenaed based upon my testimony.
The lawyers for Lincoln
Point Tower jerked my chain and actually served me
on Thanksgiving Day.
The sum and essence of my testimony was to revolve
about information
others testified to but perhaps failed to recognize the
importance. I still believe as I did then that the issues
I raised might be very important. If
not... why then was I subpoenaed? I was very
thankful that Phil Vova, Esq. assisted me in the
subpoena matter.
Someone mentioned that residential roadways must
be minimally 36-feet
wide and commercial roadways must be greater than
50-feet. It was my
1/21/2006
Page 3 of6
understanding that there is room for the 36-foot
roadway but not for a 50-
foot wide roadway. The wheels began to churn and
then I got up to
testify.
I asked what the definition of a residential v
commercial dwelling. I
wanted to know what constituted a commercial
enterprise? I asked if
anyone knew if this project requested approval for any
commercial
enterprises within the Lincoln Point Tower either now
or anytime in the
future? I asked if anyone knew if a cafe, barber shop,
beauty salon, dry cleaners would be located within this
building? I then asked if a Spa
were in this building and they sold services and
beauty supplies would
that constitute a commercial enterprise? What about
the valet service,
is it run by the building or does an outside enterprise
control it? If any
valets accept monies is this considered an acceptable
fee for service?
Will a car wash service be located in this Building? Will
they have
a Limo service? These possibilities seem almost
endless.
Absolutely, no one addressed my questions or
1/21/2006
Page 4 of 6
even commented
from the City Commission. However, the attorneys
for Lincoln Point
must have known that I was onto something and that
is why they
subpoenaed me. Wouldn't it be wonderful, if
something so simple could
help our cause. I understand that perhaps I am naive
but realistically... there might be something there. I
am just not savvy enough with Condo/Florida Law and
zoning issues to be a torch carrier. Perhaps one
of the recipients of this email would be the right
person to carry this torch.
I still feel very strong about my testimony and believe
that someone smarter
than I with a good solid legal background might be
able to make this
concept fly. Of course, I don't know the law and have
no idea what legal
cases have set the standards for case law on this
matter. But... just think... regardless of the City
Commission actions/in-actions if Lincoln Point
Tower was classified as a commercial enterprise based
upon any of the businesses mentioned then it would
no longer be up to the City Commission to determine
its fate. If they need a 50-foot wide street and there
isn't room they would have to look to the waterway
which would require major rezoning and a lot of
permissions (Army Corp. of Engineering) particularly if
dredging
1/21/2006
Page 5 of6
might be involved.
So, I ask you again... what constitutes a
commercial enterprise? I suspect (but lack the
knowledge) that I am probably off the mark. We
really need to seek alternative solutions.
Most of us remember what our Commissioners said
during this meeting.
After the meeting, I emailed all of the Commissioners
including the City Manager. The only response I
received was from Eric Soroka the City Manager
informing me that he really couldn't comment since
there
appeared to be imminent litigation.
I really don't think that the threat of litigation was the
primary concern or that
we might lose a hundred million dollars +/- (I
seriously doubt). Certainly, an astute attorney could
tie this matter up in the Courts for many years. I
really think that the Commissioners might have
abandoned their original views
since it would probably impact significantly on their
personal lives. I think that they personally didn't
wish to be tied up perhaps for several years in and out
of Depositions and in and out of Court. I think there
possibly was a selfish motive. The folks of Williams
Island need to make certain that those elected
officials that we entrusted to properly represent the
1/21/2006
Page 6 of6
majority of us be held accountable. Most certainly
these elected officials certainly knew
how the majority of Williams Islanders wanted
them to vote. At the September meeting most of
the Commissioners seemed to give lip service
to proceeding in a proactive manner against Lincoln
Point and now just a
few months later there has been a 180 in their
thinking. What happened during this interim? Do we
need to investigate exactly how and why there
was this change of direction? Did our Commissioners
base their decision
on facts, did they base their decision on their
constituency, what exactly did they base their decision
on? Inquiring minds want to know. If you are as
much in the dark as I am then please contact your
City Commissioner
and share their answers with the rest of us less
informed individuals. The Mayor should be
complimented for holding her ground and we need to
wait and see the reasoning behind all the other
Commissioners decisions.
Bob
Robert K. Fabric, M.D.
------ End of Forwarded Message
1/21/2006
Page 1 of 1
BILLY JOEL
From:
To:
<Fpm1@aol.com>
<Joelhillman@aol.com>; <RodLWhite@aol.com>; <JEB2800@aol.com>; <Plwines@aol.com>;
<Marfurshie@aol.com>; <REDJOYCEBLUE@aol.com>; <mirskym@bellsouth.net>;
<JLGarcia@dadeschools.net>; <CVidueira@Huizenga.com>; <ILallen@bellsouth.net>;
<jtabacinic@bellsouth.net>; <houtkin@yahoocom>
Sunday, January 22, 2006 5:42 PM
Re: Lincoln Pointe matter
Sent:
Subject:
Joel,
I agree.
The POA must convene a special meeting regarding this issue prior to the commissions meeting on February
1 st as suggested by Jonathan Evans.
It should be held giving the POA enough time to circulate the petition and speak to the Presidents and Boards
of the surrounding communities.
Frank
In a message dated 1/22/20065:26:22 PM Eastern Standard Time. Joelhillman writes:
I suggest that the POA circulate petitions to all buildings in WI, requesting that all residents sign a
petition against the development, and stating that any commissioner that votes for the proposal should
not be comfortable in assuming that he/she will have the vote of our community at the next election. If
our 2000 units and Point East submit such a petition, my guess is that the commissioners will have
second thoughts on approving the prospect.
That will hit them where it hurts.
Joel
> This message is intended only for the use of the addressee and may contain
> Information that is PRIVILEGED and CONFIDENTIAL.
> If you are not the intended recipient, you are hereby notified that any
> Dissemination of this communication is strictly prohibited.
> If you have received this communication in error. please
> Erase all copies of the message and its attachments and notify us
> Immediately. Thank you.
1/23/2006
Subj: A PUBLIC INVITATION TO BILLY & BOB
Date: 1/22/20064:57:29 P.M. Eastern Standard Time
From: kriya108@comcast.net
To: judgeRD@aol.com, bjoel@galenetwork.com
DEAR COMMISSIONER:
I AM ISSUING A PUBLIC INVITATION TO COMMISSIONER BOB DIAMOND OF THE 3000
BUILDING AND COMMISSIONER BILLY JOEL OF THE 2600 BUILDING TO SHOW UP AT OUR
NEXT TOWN HALL MEETING ON WI TO ANSWER RESIDENTS' QUESTIONS AS TO WHY YOU
VOTED AGAINST YOUR NEIGHBORS, WHO ELECTED YOU INTO OFFICE, IN FAVOR OF THE
DEVELOPERS INTERESTS WHO DO NOT LIVE HERE.
GEORGE TOWER
WI RESIDENTS COALITION
Monday, January 23, 2006 America Online: Cupecoyx
Page I of I
Page 1 of1
Subj: Your vote against Williams Island residents
Date: 1/23/200611:18:16 AM. Eastern Standard Time
From: gubaliz@comcast.net
To: judgeRD@aOl.com, bjoel@galenetwork.com
CC: kriya108@comcast.nel
Dear Mr. Diamond & Mr. Joel:
It has been a shame that you put both votes in favor of the construction of Lincoln Point Towers. Why did
you give your votes in favor? You must to be in our next Town Hall meeting on Feb.1st at 6000 Bldg. and
explain to all of Williams Island residents your position. I hope that you consider your votes for the next
meeting. Sincerely,
Gustavo Diliz
1000 Building #1408
FREE @ Click Here
Monday, January 23, 2006 America Online: Cupecoyx
Page 1 of 1
Subj: Lincoln Point
Date: 1/22/20061 :01 :24 P.M. Eastern Slandard Time
From: HShapley@aol.com
To: JudgeRD@aol.com, bjoel@galenetwork.com
CC: condominium1@belisoulh.nel, davidedenw@gmail.com, hhkatz@holmail.com,
Ii_alien@belisoulh.nel, michael. homslein@att.nel. scottkranz@slralegica.nel,
lim@lcdinvestmenls.com
Dear Bob and Bill,
I respectfully request that you advise me as to why you both voted for the Lincoln Point
project to go forward?
It is a shame that the City council voted yes (with only the Mayor voting no) to approve
Lincoln Point. We Islanders were all so happy this summer, when we went to to the
Council meeting and the developer was thwarted. The entire council voted against the
developer except you Billy, when you voted for further compromise negations, and one
other Council member.
We face a nightmare between the construction period of Lincoln and Minto and then the
enormous amount of additional traffic if Lincoln is built.
Please advise your reasoning.
I have been told that there will be a another Council meeting on 2/1/06, at which there will
be another vote on Lincoln point.
If this is so please change your vote and stop Lincoln Point.
Sincerely,
Harvey Shapley
cc: 1000 Island Blvd BOD
Sunday, January 22, 2006 America Online: Cupecoyx
Subj: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
Date: 1/23/2006 2:51 :22 A.M. Eastern Standard Time
From: kriya108@comcast.nel
To: kriya108@comcast.nel
Greelings ISlanders:
Firsl, my apologies in nol being able 10 include ali your emails (10 avoid
redundancy) in lhis matter. I have been bombarded wilh more emails aboul
lhis issue about Bob Diamond - Billy Joel - Lincoln Poinl than I even
received aboul Minlo lasl year and with good reason since I have been
informed lhal Lincoln Poinl Tower should sland much bigger lhan any olher
building on WI and in lhe vicinity.
I HAVE ALREADY SENT A PUBLIC INVITATION TO COMMISSIONER BOB DIAMOND OF THE
3000 BUILDING AND COMMISSIONER BILLY JOEL OF THE 2600 BUILDING TO SHOW UP AT
OUR NEXT TOWN HALL MEETING ON WI TO ANSWER RESIDENTS' QUESTIONS AS TO WHY
THEY VOTED AGAINST THEIR NEIGHBORS, WHO ELECTED THEM INTO OFFICE, IN FAVOR
OF THE DEVELOPERS INTERESTS WHO DO NOT LIVE HERE.
Bob Diamond's email addressis:judgeRD@aol.com
Billy Joel's email addressis:bjoel@galenetwork.com
I think the POA should distribute a letter to each unit owner about Lincoln
Point Tower so we are ali informed and on the same page. This way everyone
will know aboul il since mosl of the people on Williams Island do nol know
aboul it. We need better communicalion.
One can only wonder how Minto is going to advertise their apartments for
sale since I suspecl thaI half of ali the units in Minto may lose their
unobstructed water views and lighl from the sun. We must watch carefuliy 10
see what disclosures lhey make to prospective buyers. Could lhis be why
Minto has not broken ground yet or announced any pricing for the apartments?
Who knows.
I have attached the July 18, 2005 letter from Biscayne Cove President
Madeline Giardelia. Mr. Gurland discussed lhe matter allhe Board meeling
over the summer and handed her letter to Jonathan Evans at that meeting and
requested Jonathan Evans to foliow up with her. Jonathan Evans did not
respond 10 her. We need 10 build bridges 10 our neighbors and work logether
wilh lhem for the benefit of ali. This is a perfecl example.
Below is a 1/22 email from Med Village residenl Burton Young, Esq. involving
Bob Diamond & Billy Joel.
ToAIi:
Finaliy, it seems as if there is some resemblance of a realization thaI
the "Ox" thaI is being "gored" belongs to everyone living in Aventura,
especialiy in lhe Williams Island area (sans lhe Developer(s). Perhaps now
then "everyone" will mobilize into a massive voting force that will send a
clear message to the Aventura Commission that actions such as their the vote
10 exclude lhe Lincoln Point projecl from lhe Temporary Moralorium was lhe
"Iasl slraw" and is jusl not acceptable. The Mayor is to be commended for
her dissenting vote.
The very same Commission enacted a weakened Temporary Moralorium (over
our slrong objection lhe Commission excluded certain building projecls on
lhe grounds that the Developer's rights were "vested"). Our Commission
then and stili do refuse to recognize lhal the residents of this Community
Monday, January 23, 2006 America Online: Cupecoyx
Page 1 of6
Page 2 of6
also have "vested" rights to live in an environment that ensures our
heallh, welfare and safety which vesled righls seem 10 equal, if nol
supersede, a Developers' vested rights.
Now our elecled Commissioner's (excepllhe Mayor) weaken lhe
Temporary Moralorium even more by granling anolher pass 10 anolher Developer
(Lincoln Point) because they were sued by the Developer. Simply, the City
"caved". Candidly, to me that action is a public insult as it is offensive
to one credulity. The reason lhey assign is lhal since lhe Developer sued
lhe City may lose and lhen lhe Developer would be enlilled 10 build a larger
project. Certainly, there are risks in any litigation. But how much of a
risk in this litigation? And is it a risk lhat should be taken?
I have confidence in our Court's and in lhe Rule of Law. Laws are
enacted 10 prolecl the rig hIs of the public. II is the Public Policy of
this State and most other States to protect and preserve the Publics health,
welfare and safety.
One must ask whether the Commissions had a legal opinion from their
City Attomey whether the Temporary Moratorium, as weak as it is, would
withsland a legal attack. They should have. If they did not, then someone
missed lhe boat. (I personaliy urged thaI they seek an Attorney General's
opinion...and lhey refused. Lesl we forget, lhey did seek anolher Opinion
from Special Counsel. It is logical to assume that they would not have
adopted the Temporary Moratorium if their lawyers counseled was infirm.) So
whal caused a change lhal would juslify lhem caving to lhis Developer?? Or
was il jusl anolher acl of poor legislative judgment?
In sum, hopefuliy the people of this Community will protest the
Commission's untoward action(s) in a massive Town Hali type meeting and
lhereafter converge in mass at the Commission Meeting. If the Commission's
majorily fail once again 10 heed the expressed will of their Constiluenls,
ali available legal options should be considered for proper redress.
Again, lhe issue is the "OX" of ALL of the resident voters of lhe
entire City. Any mass meeting and/or coordinaled effort should include our
neighbors at Point East, the Waterways (Poinl). etc.
My besl to ali, Burton Young
The foliowing is my 1/21 email to POA President Carlos Videuira:
Carlos:
I am forwarding 1000 Board Member Harvey Shapley's email to you because he
raises a good queslion aboul what can be done. How wili the POA protect
residents' interests from this monslrosity? How will this affecl property
values?
I spoke with Biscayne Cove President Madeline Giardelia and they are hiring
land use attorney W. Tucker Gibbs to represenl their association to fighl
Lincoln Poinle. They are ready 10 talk 10 lhe POA and have been for a long
time. Being thaI the POA owns NE 31st Court I wonder iflhere is any way 10
use lhat to our advantage. Can we instali a drawbridge, toli booth, oil
slick machine or maybe narrow lhe road by 80%? (grin)
This issue affects more lhan half of ali unil owners on Williams Island and
ALL of lhe unit owners because of lhe influx of another 1000 vehicles coming
through our intersection on 183rd Street nol counting hundreds more vehicles
Monday, January 23, 2006 America Online: Cupecoyx
on top of that from Pennisnsula II and Minto. What effect will having
anolher 1000 vehicles in close proximity 10 our fronl gate do 10 our desire
to close the open lane and change the front gate entrance and traffic flow?
Whal happens in case of an emergency?
I have copied some olher residents on lhis email in lhe hope lhal we may be
able 10 pul our heads logelher and come up wilh a solulion.
George
The foliowing is Frank Mengrone's email to Keith Marshali (6000 POA Rep)
Keith Marshali,
Laurie Alien has added the Lincoln Pointe matter (see excerpts below) to lhe
Agenda of lhe upcoming POA Town Hali meeling at lhe 6000 building.
She suggesls as many people as possible attend lhe Town Hali meeling at lhe
6000 building 10 show the resident's concems about the development of
Lincoln Pointe.
She will contact Mayor Susan Gottlieb and requesls lhal we ali encourage
Billy Joel and Bob Diamond 10 attend.
The POA board musl take a stand on this issue for the Williams Island
Residenls.
This cannot be accomplished by a smali group of residenls trying 10 raise
money to fig hI the issue, lhe POA board musllake on lhis issue as a
representative body and invite the surrounding communities join us, thus
creating a massive block of voters that Aventura wili not be able to dismiss
and will also vindicale Mayor Susan Gottlieb for her vole against lhe
Lincoln Poinle project.
The POA board must commission a study to look at the accumulative adverse
effects this will have on the safety and welfare of the Wiliiams Island
residents.
One of lhe consequences of this issue wili be thaI you will never be able to
drive on or off Williams Island, that includes fire, safety and ambulance
vehicles.
The findings of the committee can be used as lhe cause of aclion 10 go into
court.
In addition 10 the above, as a direcl result of the Minto and Lincoln Pointe
development our property values will surely depreciate.
If you cannol get 10 Wiliiams Island, or when you can, you have to navigale
lhru hundreds of lrucks and workers, combined wilh lhe loss of "Quiel
Enjoymenf' of your home, as weli as the obvious safety issues, Williams
Island will lose a great deal of its appeal.
Si ncerely,
Frank Mengrone
Ediled Excerpl from lhe 1-19-06 Burton Young email
>1 was jusl advised lhat lhe Avenlura Commission wilhin lhe lasl24 hours gave a
pass and a release from lhe Temporary Moralorium for lhe conslruclion of a
multi-unit project at Lincoln Point. The vote was 5-1 with the Mayor being the
only vote in opposition. Evidently, the Developer threatened to sue or did sue
in order 10 escape lhe reslrainls of lhe lemporary moralorium and lhe City
lhought il best 10, in effecl, cave.
Edited Excerpl from 1-21-06 Laurie Alien email
>> I have added an Agenda item 10 lhis matter. I suggest that you encourage as
many people as possible 10 attend the Town Hali meeting at 6000 building 10 show
the residenfs concerns aboul the development of Lincoln Pointe.
I will invile Susan, bul who should realiy attend is Bob Diamond and Billy
Monday, January 23, 2006 America Online: Cupecoyx
Page 3 of6
Page 4 of 6
Joel.
Edited Excerpt from 1-21-06 George Tower email
>>1 spoke with Biscayne Cove President Madeline Giardelia and lhey are hiring
land use attorney W. Tucker Gibbs to represent their association to fight
Lincoln Pointe. They are ready to talk to the POA. Being that the POA owns NE
31 sl Court I wonder if lhere is any way to use thaI to our advanlage.
The foliowing is an email from 1000 POA Rep Laurie Alien 10 Frank Mengrone:
Frank
I have added an Agenda ilem 10 this matter. I suggest lhat you encourage as
many people as possible to attend the Town Hali meeling al6000 building to
show lhe resident's concerns aboullhe developmenl of Lincoln Pointe.
I will invite Susan, bul who should really attend is Billy Joel, Bob
Diamond. In fact, we should insisl they attend. Start an email campaign 10
lhal effort, and shame lhem inlo it.
Laurie
Dr. Bob Fabric's reply 10 Frank Mengrone below:
Hi Frank:
I couldn't be any more in agreement. Terrific email!
It is time for our POA to show their cahones (to use a comment
from Laurie Alien). This should be an issue thaI the entire POA
Board unanimously slands "behind" and if nol we need 10 kick lhose
in disagreemenl in lheir "behind" and gel rid of lhem ASAP as nol
represenling their own constituency.
I agree ... we should aliow lhose Commissioners lhal voled for
Lincoln Point 10 explain themselves or aliow lhem to change lheir
vole. If this isn't accomplished then one only wonders if there is
a process to remove a Commissioner that votes against his
constiluency. Certainly, any Commissioner thaI votes for and
continues to vote for Lincoln should consider his Avenlura polilical
life over ... even the one that wants to run for Mayor against
S. Gottlieb.
Your commenls were ali on poinl and I am in lolal agreemenl wilh
you. I am thankful thaI we have folks on lhe Island lhat are like you
and are as articulate in expressing themselves. Thank you.
Bob
Robert K. Fabric, M.D.
From Eddie Barrocas on 1/22
> I will be very willing to show my support on this issue and attend the
> meeling as weli as encourage olhers 10 do so, thanks for getting me inlo lhe
> information loop.
> Feel free to counl on Patty and me for any help that may be needed.
>
> Eddie Barrocas
Monday, January 23, 2006 America Online: Cupecoyx
Page 5 of6
Finally I think that we should not forget our new neighbors in Bella Mare
who may nol have been around lasl year when I firsl raised this issue.
Please make it a point to ex1end yourselves to our new neighbors in 6000 in
the spirit of neighborly brolherhood. I am including an email below from a
new 6000 resident. - George Tower
22 January, 2006
AIi,
Today's e-mail communiques were my first knowledge of this situation. I
think the best way to make an impact on the Commission would be a pelition
(left in each building on Wiliiams Island) signed by as many people as
possible. This could have an effect on the oulcome by delivering illo lhe
Commission, better than merely going to the meeting and speaking and be
side-slepped and ignored.
I, 100, would be wiliing 10 help in any way I can.
Harold Richman
Belia Mare
The following two emails have been senl to lhe two City Commissioners, Bob
Diamond & Billy Joel, who voted against residenfs interests in favor of the
Develope~s interest. They are Bob Diamond of the 3000 Building and Billy
Joel of lhe 2600 Building.
The foliowing was sent by Harvey Shapley, a Director of the 1000 Building
Board.
Dear Bob and Bili,
I respectfully request that you advise me as to why you both voted for the
Lincoln Point project 10 go forward?
II is a shame lhallhe City council voled yes (wilh only lhe Mayor voling
no) to approve Lincoln Point. We Islanders were ali so happy lhis summer,
when we went to to the Council meeting and the developer was thwarted. The
entire council voted against lhe developer excepl you Billy, when you voted
for further compromise negalions, and one olher Council member.
We face a nighlmare between the construction period of Lincoln and Minto and
then the enormous amount of additional traffic if Lincoln is built.
Please advise your reasoning.
I have been told that there will be a another Council meeting on 2/1/06, at
which lhere wili be another vole on Lincoln point.
If lhis is so please change your vole and slop Lincoln Point.
Sincerely,
Harvey Shapley
cc: 1000 Island Blvd BOD
The foliowing was sent by 2800 resident Andres Weisz to Bob Diamond & Billy
Joel
Dear Sirs:
Monday, January 23, 2006 America Online: Cupecoyx
Page 6 of6
The purpose of this E-Mail is to clearly state my opposition to your
decision to aliow lhe conslruction of a high rise al Lincoln Poinl
as weli as your previous decision on the Minto Developers Building.
Your positive vote on lhese two matters is clearly againsl the
interests of the presenl inhabitants of Wiliiams Island but even
worse it is againsllhe inlerests of ali of lhe residents of Avenlura,
who will see their "city of excelience" converted into an ugly and
untenable "Manhattan Soulh".
Jusl because you are lhrealened by a lawsuil from lhe developers
of Lincoln Point, you don'l have to run like frighlened chickens and
do lheir bidding.
When we elecled you as commissioners, we entrusled you wilh the
common good and nol wilh lhe increase of lhe laxable property
base which means more money in the coffers of the city of Aventura.
I urge you to deny final approval to the developer of Lincoln Poinl
and acl according 10 your sworn duty of defending lhe inleresls of
the city of Avenlura and ils residenls.
Yours Truly,
Andres Weisz
2800 Island Blvd.
Apt. 3002
Islanders. Ilhink lhe time has come to hold every Avenlura Commissioner
publicly accounlable including, Bob Diamond & Biliy Joel, for what lhey have
done. If they have a legitimate reason for abandoning the very residents
(who elected them to prolect us) I am sure we would like 10 hear whal they
have 10 say.
Those of you who have media contacts and expertise may wish to give this
some thought. The time has come to draw the line in the sand with our
Commissioners and 10 do so openly before lhe eyes of lhe public.
George Tower
Wiliiams Island Residents Coalition
Monday, January 23, 2006 America Online: Cupecoyx
Page 1 of3
BILLY JOEL
From:
To:
Sent:
Subject:
"Teresa Soroka" <SorokaT@cityofavenlura.com>
<biliyjoeI13@gmail.com>
Saturday, January 21, 2006 11 :08 AM
FW: Avenlura Sections 34-40 and 34-34
From: David M. Wolpin [mailto:DWolpin@wsh-law.com]
Sent: Fri 1/20/20063:48 PM
To: Teresa Soroka
Cc: Eric M. Soroka
Subject: FW: Aventura Sections 34-40 and 34-34
Teresa- in lighl of lhe upcoming quasi judicial hearing on lhe Moralorium Waiver applicalion, please forward lhis
email and lhe attached Cily Code excerpllo each of lhe Commission members as a reminder 10 comply wilh
lhe public slalemenl and conducl reslriclions of Sec. 34-40, and wilh lhe ex parte communicalion reslriclions
and disclosure requiremenls of Sec. 34-34. Please refer any queslions 10 me . Thanks for your assistance.
Ilmid \1. Wolpin. 1-:,'1.
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2()6:'i S. B,l) "hol\: Drive. Suik -l-.::'O
ivliallll.I:1 33133
DWolpin@wsh-law.com
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disclosure cnp) ing., diQrihuliol1. use. PI' ,Hl) aclilJJl Ill" rL'liancl' \11l Ihi" l'(1l11lllll11ii..'iltiul1 i" 'itricll: prllllihikd. !r:- ill] !Jil\'C
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From: Tara L. Gould
Sent: Friday, January 20, 2006 3:25 PM
To: David M. Wolpin
SUbject: Aventura Sections 34-40 and 34-34
Sec. 34-34. Ex-parte communications.
1/21/2006
Page 2 of3
(a) Except as otherwise specified herein, this section is adopted to follow the disclosure processes of
F.S. S 286.0115(1), and shall be construed so as to be consistent therewith.
(b) Except for the specific issue which is the subject of a pending quasi-judicial matter for which an
application has been filed with the City pursuant to section 34-32 of this Code, any Commissioner may
choose to discuss the merits of any proposed project or development on which action may be taken by
the Conunission with any person not otherwise prohibited by statute, charter provision, section 34-40 or
other ordinance, if the Conunissioner complies with the applicable procedures of paragraph (c) and (d)
of this section 34-34. As to any specific issue which is the subject of a pending quasi-judicial matter for
which an application has been filed with the City pursuant to section 34-32, outside of the public hearing
Conunissioners are prohibited from discussing the merits of the specific issue for which approval is
sought by the pending application with any person other than the City staff. The term "specific issue", as
used in this paragraph, refers to the specific variance, conditional use, rezoning, site plan, plat approval
or like item for which approval is sought, rather than referring to the general matter, as opposed to the
merits, of the proposed project or development itself. Notwithstanding any contrary provision of this
paragraph (b), the prohibitions of this paragraph (b) shall not apply to applicant conferences with the
City Manager which are attended by individual Conunissioners (no more than one Conunissioner at
each conference) provided that the City Manager first finds and certifies in writing that the application
concems a project of significant impact, and schedules such conferences. The term "project of
significant impact," as used in this paragraph, means a project which has the potential to substantially
enhance or substantially impair the public health, safety or welfare.
(c) Compliance with the procedures of this section 34-34 shall remove any presumption of prejudice
arising from ex-parte communication with any Commissioner.
(1) Oral communications. The subject of the communication and the identity of the person, group, or
entity with whom the communication took place shall be disclosed and made a part of the record before
final action on the application. At the quasi-judicial hearing the person or persons responsible for the ex-
parte communication, any party to the hearing and any participant shall have the opportunity to contest
the accuracy of the matters disclosed.
(2) Written communications. Any written communication related to an application pending before the
Commission shall be forwarded to the appropriate staff for inclusion in the official file for the
application, and shall be disclosed on the record before final action on the matter. It shall be the
responsibility of the applicant to review the official file periodically to determine whether written ex-
parte communications have been placed in the official file.
(3) Investigations and site visits. Except as provided in paragraph (b) above, Commissioners may
conduct investigations and site visits and may receive expert opinions regarding a quasi-judicial action
pending before them. However, in any event, such activities shall not be presumed prejudicial to the
action if the existence and subject matter of the investigations, site visits, or expert opinions is made a
part of the record before final action on the matter and an opportunity for the parties and participants to
respond is provided prior to or at the hearing.
(d) Commissioners must make disclosures of their ex-parte communications (regardless of whether or
not such ex-parte communications are prohibited by paragraph (b) above) before or during the public
meeting at which a vote is taken on the application to afford persons a reasonable opportunity to refute
or respond to the communication.
(Ord. No. 2001-06, S 3, 6-5-01; Ord. No. 2002-28, S 2,11-12-02)
1/21/2006
~ -
Page 3 of3
Sec. 34-40. Public statements by Commissioners.
(a) The Mayor and Commissioners shaH each avoid publicly expressing their intention, either directly
or indirectly, to vote for or against a pending quasi-judicial matter or working to influence public
opinion upon a pending quasi-judicial matter, prior to hearing held pursuant to City Code section 34-32.
A quasi-judicial matter is pending when an application has been filed pursuant to City Code section 34-
32.
(b) The failure to comply with the restriction provided in paragraph (a) of this section shall not
invalidate any action or decision of the City Commission so long as the decision or action ofthe City
Commission is supported by competent substantial evidence of record as required by law.
(c) Any members of the City Commission violating the standard of conduct set forth above shall be
subject to public censure by the City Commission, subject to rules adopted by the City Commission
providing the accused Commissioner with a fair hearing, including an opportunity to be heard. The
Commission reserves the right, by subsequent ordinance to prospectively implement other sanctions, in
the event that the sanction provided for above is not effective in implementing the purposes of this
section.
Tara L. Gould. Esq.
\VL'IS'i SL'!"oUt I lei fman
P,l'.;lori/<l Cok 8..: Boni"kc PA,
~6()" S. Ba) s!lor(' Dri\L\ Suik .J:?O
!v1iami. IT ~3133
TGould@wsh-law.com
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dckt;.,' the 111(''''''<I)2,c. aloilg \\ ilh ,1J1~ ,nt,ILhtlh.'i)t<..,
1/21/2006
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
Joanne Carr
Thursday, January 26, 2006 5:07 PM
Teresa Soroka
Subject: Lincoln Poinle Waiver
For your records, Sandra Kasindorf, residenl al Biscayne Cove, 18151 NE 31st Court, Apartmenl1616, Aventura,
is opposed 10 the waiver due 10 lraffic congestion and emergency access concerns.
Joanne Carr, AIC?
Planning Director
City of Aventura
/9200 West Country Club Drive
Aventura, FL 33180
(305) 466-8940
1/27/2006
Page 1 of1
Teresa Soroka
From: Joanne Carr
Sent: Wednesday, January 25, 2006 1 :56 PM
To: Teresa Soroka
Cc: Eric M. Soroka
Subject: Objeclion 10 Moralorium Waiver
Ms. Yon a Keliman, 18151 NE 31 Court, Apartmenl809 (Biscayne Cove) cailed January 24,200610 voice her
objeclion 10 lhe granling of a waiver for lhe Lincoln Poinle project.
Joanne Carr, AICP
Planning Director
City of Ayentura
19200 West Country Club Dr;ye
Ayentura, FL 33180
(305) 466-8940
1/25/2006
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AVEAfnJflA - "Pi. ~31hO
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Eric M. Soroka
From:
Teresa Soroka
Sent: Monday, January 23, 2006 12:05 PM
To: Eric M. Soroka
SUbject: FW BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Attachments: BiscayneCov[2].pdf; forward.dal
From: Susan Gottlieb [mailto:skgmiami@comcast.net]
Sent: Mon 1/23/2006 11: 14 AM
To: laurie alien; Teresa Soroka
Subject: Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
----- Original Message -----
From: <ll_allen@bellsouth.net>
To: <skgmiami@comcast.net>
Sent: Monday, January 23, 2006 9:23 AM
Subject: [Fwd: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
> Susan,
>
> As you can tell from the following, there has been much talk about recent
> decision and you are being heartily applauded. Please read the following
> so you can ascertain the temperature of the Island. If you would like to
> attend the town hallmeeting, i will keep you informed of the date, as
> there has been talk of rescheduling it to accomodate the council meeting
>aI50.
>
> Best regards,
>
> Laurie Allen
>>
>>From: George Tower <kriyaI08@comcast.net>
>>Date: 2006/01/23 Mon AM 03:06:37 EST
>>To: Sydney Davis <thesydneystyle@ao1.com>
>> Subject: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
>>
>> Greetings Islanders:
>>
>> First, my apologies in not being able to include all your emails (to
>> avoid
>>redundancy) in this matter. I have been bombarded with more emails about
>>this issue about Bob Diamond - Billy Joel - Lincoln Point than I even
>>received about Minto last year and with good reason since I have been
>> informed that Lincoln Point Tower should stand much bigger than any other
>>building on WI and in the vicinity.
>>
>> I HAVE ALREADY SENT A PUBLIC INVITATION TO COMMISSIONER BOB DIAMOND OF
>> THE
>> 3000 BUILDING AND COMMISSIONER BILLY JOEL OF THE 2600 BUILDING TO SHOW UP
>>AT
1/23/2006
Page 1 of8
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Page 2 of8
>> OUR NEXT TOWN HALL MEETING ON WI TO ANSWER RESIDENTS' QUESTIONS AS TO WHY
>> THEY VOTED AGAINST THEIR NEIGHBORS, WHO ELECTED THEM INTO OFFICE, IN
>>FAVOR
>>OF THE DEVELOPERS INTERESTS WHO DO NOT LIVE HERE.
>>
>> Bob Diamond's email addressis:judgeRD@aol.com
>> Billy Joel's em ail addressis:bjoel@galenetwork.com
>>
>> I think the POA should distribute a letter to each unit owner about
>> Lincoln
>> Point Tower so we are all informed and on the same page. This way
>> everyone
>>will know about it since most of the people on Williams Island do not
>> know
>> about it. We need better communication.
>>
>> One can only wonder how Minto is going to advertise their apartments for
>> sale since I suspect that half of all the units in Minto may lose their
>>unobstructed water views and light from the sun. We must watch carefully
>>to
>> see what disclosures they make to prospective buyers. Could this be why
>> Minto has not broken ground yet or announced any pricing for the
>> apartments?
>> Who knows.
>>
>> I have attached the July 18,2005 letter from Biscayne Cove President
>> Madeline Giardella. Mr. Gurland discussed the matter at the Board
>> meeting
>>over the summer and handed her letter to Jonathan Evans at that meeting
>> and
>>requested Jonathan Evans to follow up with her. Jonathan Evans did not
>>respond to her. We need to build bridges to our neighbors and work
>> together
>>with them for the benefit of all. This is a perfect example.
>>
>>
>>Below is a 1/22 email from Med Village resident Burton Young, Esq.
>> involving
>> Bob Diamond & Billy Joel.
>>
>>To All:
>> Finally, it seems as if there is some resemblance ofa realization
>>that
>>the "Ox" that is being "gored" belongs to everyone living in Aventura,
>> especially in the Williams Island area (sans the Developer(s). Perhaps
>> now
>>then "everyone" will mobilize into a massive voting force that will send
>>a
>>clear message to the A ventura Commission that actions such as their the
> > vote
>>to exclude the Lincoln Point project from the Temporary Moratorium was
>>the
>> "last straw" and is just not acceptable. The Mayor is to be commended
>> for
>>her dissenting Yote.
>>
>> The very same Commission enacted a weakened Temporary Moratorium
>> (over
>>our strong objection the Commission excluded certain building projects on
>>the grounds that the Developer's rights were "vested"). Our Commission
>>then and still do refuse to recognize that the residents of this
1/23/2006
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Page 3 of8
>> Community
>>also have "vested!! rights to live in an environment that ensures our
>>health, welfare and safety which vested rights seem to equal, ifnot
>> supersede, a Developers' vested rights.
>>
>> Now our elected Commissioner's (except the Mayor) weaken the
>>Temporary Moratorium even more by granting another pass to another
>> Developer
>>(Lincoln Point) because they were sued by the Developer. Simply, the City
>>"caved". Candidly, to me that action is a public insult as it is
>> offensive
>>to one credulity. The reason they assign is that since the Developer sued
>>the City may lose and then the Developer would be entitled to build a
>> larger
>>project. Certainly, there are risks in any litigation. But how much of
>>a
>>risk in this litigation? And is it a risk that should be taken?
>>
>> I have confidence in our Court's and in the Rule of Law. Laws
>> are
>>enacted to protect the rights of the public. It is the Public Policy of
>>this State and most other States to protect and preserve the Publics
>> health,
>>welfare and safety.
>>
>> One must ask whether the Commissions had a legal opinion from
> > their
>>City Attorney whether the Temporary Moratorium, as weak as it is, would
>>withstand a legal attack. They should have. If they did not, then someone
>>missed the boat. (1 personally urged that they seek an Attomey General's
>> opinion...and they refused. Lest we forget, they did seek another
>> Opinion
>>from Special Counsel. It is logical to assume that they would not have
>>adopted the Temporary Moratorium if their lawyers counseled was infirm.)
>> So
>>what caused a change that wouldjustity them caving to this Developer??
>>Or
>> was it just another act of poor legislative judgment?
>>
>> In sum, hopefully the people of this Community will protest the
>>Commission's untoward action(s) in a massive Town Hall type meeting and
>>thereafter converge in mass at the Commission Meeting. If the
>> Commission's
>>majority fail once again to heed the expressed will of their
>> Constituents,
>> all available legal options should be considered for proper redress.
>>
>> Again, the issue is the "OX" of ALL of the resident voters of the
>>entire City. Any mass meeting and/or coordinated effort should include
>> our
>>neighbors at Point East, the Waterways (Point). etc.
>>
>> My best to all, Burton Young
>>
>>---------------------------------------------------------------------------
>> The following is my 1/2 I emaii to POA President Carlos Videuira:
>>
>> Carlos:
>>
>> I am forwarding 1000 Board Member Harvey Shapley's email to you because
>>he
1/23/2006
----.----r-----.~
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Page 4 of 8
>> raises a good question about what can be done. How will the POA protect
>>residents' interests from this monstrosity? How will this affect
> > property
>> values?
>>
>> I spoke with Biscayne Cove President Madeline Giardella and they are
> > hiring
>>land use attorney W. Tucker Gibbs to represent their association to fight
>> Lincoln Pointe. They are ready to talk to the POA and have been for a
>> long
>>time. Being that the POA owns NE 31st Court I wonder if there is any way
>>to
>>use that to our advantage. Can we install a drawbridge, toll booth, oil
>> slick machine or maybe narrow the road by 80%? (grin)
>>
>> This issue affects more than half of all unit owners on Williams Island
>> and
>>ALL of the unit owners because of the influx of another 1000 vehicles
>> coming
>>through our intersection on I 83rd Street not counting hundreds more
> > vehicles
>>on top of that from Pennisnsula II and Minto. What effect will having
>> another 1000 vehicles in close proximity to our front gate do to our
> > desire
>>to close the open lane and change the front gate entrance and traffic
>> flow?
>> What happens in case of an emergency?
>>
>> I have copied some other residents on this email in the hope that we may
>>be
>> able to put OUf heads together and come up with a solution.
>>
>>
>> George
>>
>>
>>The following is Frank Mengrone's email to Keith Marshall (6000 POA Rep)
>>
>>Keith Marshall,
>>Laurie Allen has added the Lincoln Pointe matter (see excerpts below) to
>>the
>>Agenda of the upcoming POA Town Hall meeting at the 6000 building.
>> She suggests as many people as possible attend the Town Hall meeting at
>>the
>>6000 building to show the resident's concerns about the development of
>>Lincoln Pointe.
>> She will contact Mayor Susan Gottlieb and requests that we all encourage
>> Billy Joel and Bob Diamond to attend.
>> The POA board must take a stand on this issue for the Williams Island
>> Residents.
>>This cannot be accomplished by a small group of residents trying to raise
>>money to fight the issue, the POA board must take on this issue as a
>>representative body and invite the surrounding communities join us, thus
>> creating a massive block of voters that A ventura will not be able to
>> dismiss
>>and will also vindicate Mayor Susan Gottlieb for her vote against the
>> Lincoln Pointe project.
>>The POA board must commission a study to look at the accumulative adverse
>>effects this will have on the safety and welfare of the Williams Island
>> residents.
>>One of the consequences of this issue will be that you will never be able
1/23/2006
-..H-T.~.._._---
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Page 5 of 8
>>to
>>drive on or off Williams Island, that includes fire, safety and ambulance
>> vehicles.
>>The findings of the committee can be used as the cause of action to go
>> into
> > court.
>> In addition to the above, as a direct result ofthe Minto and Lincoln
>> Pointe
>>development our property values will surely depreciate.
>>Ifyou cannot get to Williams Island, or when you can, you have to
>> navigate
>>thru hundreds of trucks and workers, combined with the loss of "Quiet
>> Enjoyment" of your home, as well as the obvious safety issues, Williams
>> Island will lose a great deal of its appeal.
>> Sincerely,
>>Frank Mengrone
>>Edited Excerpt from the 1-19-06 Burton Young email
>>
>>>1 was just advised that the Aventura Commission within the last 24 hours
>>>gave a
>> pass and a release from the Temporary Moratorium for the construction of
>>a
>>multi-unit project at Lincoln Point. The vote was 5-1 with the Mayor
>>being the
>>only vote in opposition. Evidently, the Developer threatened to sue or
>> did sue
>>in order to escape the restraints of the temporary moratorium and the
>> City
>>thought it best to, in effect, cave.
>>
>>Edited Excerpt from 1-21-06 Laurie Allen email
>>
>>>> I have added an Agenda item to this matter. I suggest that you
> > > > encourage as
>>many people as possible to attend the Town Hall meeting at 6000 building
>>to show
>>the resident's concerns about the development of Lincoln Painte.
>> I will invite Susan, but who should really attend is Bob Diamond and
>>Billy
>> Joel.
>>
>>Edited Excerpt from 1-21-06 George Tower email
>>
>>>>1 spoke with Biscayne Cove President Madeline Giardella and they are
>> >>hiring
>> land use attorney W. Tucker Gibbs to represent their association to fight
>> Lincoln Pointe. They are ready to talk to the paA. Being that the paA
>>owns NE
>>3Ist Court I wonder if there is any way to use that to our advantage.
>>
>>
>> The following is an email from 1000 paA Rep Laurie Allen to Frank
>> Mengrone:
>>
>> Frank
>>1 have added an Agenda item to this matter. I suggest that you encourage
>>as
>>many people as possible to attend the Town Hall meeting at 6000 building
>>to
>> show the resident's concerns about the development of Lincoln Pointe.
>>
1/23/2006
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Page 6 of8
>> I will invite Susan, but who should really attend is Billy Joel, Bob
>>Diamond. In fact, we should insist they attend. Start an email campaign
>>to
>>that effort, and shame them into it.
>>
>> Laurie
>>
>> Dr. Bob Fabric's reply to Frank Mengrone below:
>>
>> Hi Frank:
>>
>>1 couldn't be any more in agreement. Terrific email!
>>
>> It is time for our POA to show their cahones (to use a comment
>> trom Laurie Allen). This should be an issue that the entire POA
>>Board unanimously stands "behindll and if not we need to kick those
>>in disagreement in their "behind" and get rid of them ASAP as not
>>representing their own constituency.
>>
>> I agree ... we should allow those Commissioners that voted for
>> Lincoln Point to explain themselves or allow them to change their
>>vote. If this isn't accomplished then one only wonders if there is
>>a process to remove a Commissioner that votes against his
>> constituency. Certainly, any Commissioner that votes for and
>>continues to vote for Lincoln should consider his Aventura political
>> life over ... even the one that wants to run for Mayor against
>> S. Gottlieb.
>>
>>Your comments were all on point and I am in total agreement with
>>you. I am thankful that we have folks on the Island that are like you
>>and are as articulate in expressing themselves. Thank you.
>>
>> Bob
>> Robert K. Fabric, M.D.
>>
>>From Eddie Barrocas on 1/22
>>
>>> I will be very willing to show my support on this issue and attend the
>>> meeting as well as encourage others to do so, thanks for getting me
>>> into the
>>> infonnation loop.
>>> Feel free to count on Patty and me for any help that may be needed.
>>>
>>> Eddie Barrocas
>>
>>
>> Finally I think that we should not forget our new neighbors in Bella Mare
>>who may not have been around last year when I first raised this issue.
>> Please make it a point to extend yourselves to our new neighbors in 6000
>>in
>>the spirit of neighborly brotherhood. I am including an email below from
>> a
>>new 6000 resident. - George Tower
>>
>> 22 January, 2006
>>
>>AII,
>>
>>Todais e-mail communiques were my first knowledge of this situation. I
>>think the best way to make an impact on the Commission would be a
>> petition
1/23/2006
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Page 7 of8
>>(Ieft in each building on Williams Island) signed by as many people as
>>possible. This could have an effect on the outcome by delivering it to
>>the
>> Commission, better than merely going to the meeting and speaking and be
>> side-stepped and ignored.
>>
>> I, too, would be willing to help in any way I can.
>>
>> Harold Richman
>> Bella Mare
>>
>>
>>
>>The following two emails have been sent to the two City Commissioners,
>> Bob
>> Diamond & Billy Joel, who voted against resident's interests in favor of
>>the
>> Developer's interest. They are Bob Diamond of the 3000 Building and
>>BilIy
>>Joel of the 2600 Building.
>>
>>The following was sent by Harvey Shapley, a Director of the 1000 Building
> > Board.
>>
>> Dear Bob and Bill,
>>
>> I respectfully request that you advise me as to why you both voted for
>>the
>> Lincoln Point project to go forward?
>>
>> It is a shame that the City council voted yes (with only the Mayor voting
>>no) to approve Lincoln Point. We Islanders were all so happy this summer,
>>when we went to to the Council meeting and the developer was thwarted.
>> The
>> entire council voted against the developer except you Billy, when you
>> voted
>> for further compromise negations, and one other Council member.
>>
>>We face a nightmare between the construction period of Lincoln and Minto
>> and
>>then the enormous amount of additional traffic if Lincoln is built.
>>
>> Please advise your reasoning.
>>
>> I have been told that there will be a another Council meeting on 2/1/06,
>>at
>>which there will be another vote on Lincoln point.
>> If this is so please change your vote and stop Lincoln Point.
>>
>> Sincerely,
>> Harvey Shapley
>>
>> cc: 1000 Island Blvd BOD
>>--------------------------------
>>The following was sent by 2800 resident Andres Weisz to Bob Diamond &
>>BilIy
>> Joel
>>
>> Dear Sirs:
>>The purpose of this E-Mail is to clearly state my opposition to your
>> decision to allow the construction of a high rise at Lincoln Point
1/23/2006
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
Page 8 of 8
>> as well as your previous decision on the Minto Developers Building.
>> Your positive vote on these two matters is clearly against the
>>interests of the present inhabitants of Williams Island but even
>>worse it is against the interests of all of the residents of Aventura,
>>who will see their "city of excellence" converted into an ugly and
>>untenable "Manhattan South".
>>
>> Just because you are threatened by a lawsuit from the developers
>>of Lincoln Point, you don't have to run like frightened chickens and
>>do their bidding.
>>
>>When we elected you as commissioners, we entrusted you with the
>>common good and not with the increase of the taxable property
>>base which means more money in the coffers of the city of Aventura.
>> I urge you to deny final approval to the developer of Lincoln Point
>>and act according to your sworn duty of defending the interests of
>>the city of Aventura and its residents.
>>
>>Yours Truly,
>>
>>Andres Weisz
>> 2800 Island Blvd.
>> Apt. 3002
>>
>>
>>Islanders. I think the time has come to hold every Aventura Commissioner
>>publicly accountable including, Bob Diamond & Billy Joel, for what they
> > have
>>done. If they have a legitimate reason for abandoning the very residents
>>(who elected them to protect us) I am sure we would like to hear what
>> they
>>have to say.
>>
>>Those of you who have media contacts and expertise may wish to give this
>> some thought. The time has come to draw the line in the sand with our
>>Commissioners and to do so openly before the eyes of the public.
>>
>>
>>George Tower
>> Williams Island Residents Coalition
>>
>>
>>
>
1/23/2006
~
CONDOMINIUM-ASSOCIATION, INC.
J~ 18, 2005
Dr. SI8ven GuIlnl
PresideIt
7000 Island Bodevln CondomirUn 4~
70001s1and BoUevad
AYllIIlIn, Fl33180
Ow Mr. GlItInd:
Inlllllng ~ you at.. SUlIlIU'OIl of Mr. George Towerwilh whom I have been clscussing fro some line the
pc II~ of negc'llIlllll......rIIBIll betneI. BIsc8rne Cove Co..iIlihm and WIIams Island conc:emlng Ihe
0lIl8IHp and... ofNE 31" eo..talrelales ~ the proposed cI8vIlIopmeIt of the Lincoln PoinIB ~.
Mr. Tower has Inb.,led me lilt Iesidenm of your Idding woUd be 8lMneIy lIIJec:tad by such del.eIopment.
My Board ... made seYllnlI ~ ... over the yecn ~ open a cIaIogue wilh the WIIa.~ Island Property Owner's
,A_lllllon l.di'IJ this ClJIIIOIU1iIJ. AppIoldh 1 'J 10 y&lQ ago, SanIJeI Brodyfomw Board TI88SlI1lI'. wroIB
10 your Property o.ws ," 110cllllon. Two (2) yellS IIgO. Charles Sparroc:k Board VIce-President. made wrbaI
ruquesIs ~ your PlllpeltJ Owner's "SlIJdalrJn. BoIh IelIIIII went lIMlSWlllK
For,...~ Cove ConIbliuun'" cleaned and llIlliullil.ed 31" Qxrt We daIy clean the road from
debris; pIIIIIy m,j,lIli.1he ....... and we provide the IighIng on 1he road as WIll
On behalf of1he Board of Dir1lcbI of Biflcayne Cove ConcIontiIn I wodd Ib ~ InvIIIIl you or a'IY olh<< qualified
resIdIIllreprlll Uhe(s) tom MIaI..1sIand ~ meet wIIIl me ~ discuIs wars lhatwe may bin a sAIBg1c
aIlIIce ~ expIcn 011' IIIIluIIr benelUlII (IOllI of ~ the I8SIdenIs of boIh.llIsca)'ne Cove Condolrinlum IIld
WIIams Island tom.. pRlp08lld del. LLpIl1lllltofthe UncoIn Pl*1Ia propeI1r. Tbat de\ alopment would seIIllI1IIy
obsN:t I1IIdMIs' ... torn your Island lIind OII'buIcIng and, menlmpo.., negaIveIy ~act our pllIpeI'tv
vBues.
I am aIIo wIIng ~ come and meet willi you and the other buIcIng PRlllideIlIs on WIIams Island ~ discuss this
ftIIher. As 1lIighba(.1O COIIlb1i1i11ns we only stand ~ benelit from eslablsNng III open Ine of COIlII'IInIcaIlon
wIIIl one 1IIOlher.
I may be IU:hed atthe oIIice (305) 935-C565 or at my eel (305) 775-3043.
Sincerely,
.;;( ...
'. ..#~ .&.d.- :~IL",-f./u~
MlIdeIrM. Gill dIel. I
Biscarne Cove CoIIcb...un Board PresideIt
18151 N.E. 31 Court 0 SuIte 101 o'Aventura, Aorida 33160 0 305-935-45650 Fax 933-5833
tyl~ ~
~
. T erega Soroka
Attachments:
Susan Gottlieb [skgmiami@comcast.net]
Monday, January 23,2006 11 :15 AM
laurie alien; Teresa Soroka
Fw: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
BiscayneCov[2].pdf; forward.dal
From:
Sent:
To:
Subject:
1t1
BiscayneCov[2].pdf forward.dat (66 B)
(381 KB)
~.m
....
..~
----- Original Message -----
From: <11 allen@bellsouth.net>
To: <skgmIami@comcast.net>
Sent: Monday, January 23, 2006 9:23 AM
Subject: [Fwd: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER]
> Susan,
>
> As you can tell from the following, there has been much talk about recent
> decision and you are being heartily applauded. Please read the following
> so you can ascertain the temperature of the Island. If you would like to
> attend the town hallmeeting, i will keep you informed of the date, as
> there has been talk of rescheduling it to accomodate the council meeting
> also.
>
> Best regards,
>
> Laurie Allen
>>
>> From: George Tower <kriyal08@comcast.net>
>> Date: 2006/01/23 Man AM 03:06:37 EST
>> To: Sydney Davis <thesydneystyle@aol.com>
>> Subject: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
>>
>> Greetings Islanders:
>>
>> First, my apologies in not being able to include all your emails (to
>> avoid
>> redundancy) in this matter. I have been bombarded with more emails about
>> this issue about Bob Diamond - Billy Joel - Lincoln Point than I even
>> received about Minto last year and with good reason since I have been
>> informed that Lincoln Point Tower should stand much bigger than any other
>> building on WI and in the vicinity.
>>
>> I HAVE ALREADY SENT A PUBLIC INVITATION TO COMMISSIONER BOB DIAMOND OF
>> THE
>> 3000 BUILDING AND COMMISSIONER BILLY JOEL OF THE 2600 BUILDING TO SHOW UP
>> AT
>> OUR NEXT TOWN HALL MEETING ON WI TO ANSWER RESIDENTS' QUESTIONS AS TO WHY
>> THEY VOTED AGAINST THEIR NEIGHBORS, WHO ELECTED THEM INTO OFFICE, IN
>> FAVOR
>> OF THE DEVELOPERS INTERESTS WHO DO NOT LIVE HERE.
>>
>> Bob Diamond's email address is:
>> Billy Joel1s email address is:
judgeRD@aol.com
bjoel@galenetwork.com
>>
>> I think the POA should distribute a letter to each unit owner about
>> Lincoln
1
>> Point Tower so we are all informed and on the same page. This way
.>> everyone
>> will know about it since most of the people on Williams Island do not
>> know
>> about it. We need better communication.
>>
>> One can only wonder how Minto is going to advertise their apartments for
>> sale since I suspect that half of all the units in Minto may lose their
>> unobstructed water views and light from the Bun. We must watch carefully
>> to
>> see what disclosures they make to prospective buyers. Could this be why
>> Minto has not broken ground yet or announced any pricing for the
>> apartments?
>> Who knows.
>>
>> I have attached the July 18, 2005 letter from Biscayne Cove President
>> Madeline Giardella. Mr. Gurland discussed the matter at the Board
>> meeting
>> over the summer and handed her letter to Jonathan Evans at that meeting
>> and
>> requested Jonathan Evans to follow up with her. Jonathan Evans did not
>> respond to her. We need to build bridges to our neighbors and work
>> together
>> with them for the benefit of all. This is a perfect example.
>>
>>
>> Below is a 1/22 email from Med Village resident Burton Young, Esq.
>> involving
>> Bob Diamond & Billy Joel.
>>
>> To All:
>> Finally, it seems as if there is some resemblance of a realization
>> that
>> the "Ox" that is being "gored" belongs to everyone living in Aventura,
>> especially in the Williams Island area (sans the Developer(s). Perhaps
>> now
>> then "everyone" will mobilize into a massive voting force that will send
>> a
>> clear message to the Aventura Commission that actions such as their the
>> vote
>> to exclude the Lincoln Point project from the Temporary Moratorium was
>> the
>> "last straw" and is just not acceptable. The Mayor is to be commended
>> for
>> her dissenting vote.
>>
>> The very same Commission enacted a weakened Temporary Moratorium
>> (over
>> our strong objection the Commission excluded certain building projects on
>> the grounds that the Developer's rights were "vestedll). Our Commission
>> then and still do refuse to recognize that the residents of this
>> Community
>> also have "vested" rights to live in an environment that ensures our
>> health, welfare and safety which vested rights seem to equal, if not
>> supersede, a Developers' vested rights.
>>
>> Now our elected Commissioner's (except the Mayor) weaken the
>> Temporary Moratorium even more by granting another pass to another
>> Developer
>> (Lincoln Point) because they were sued by the Developer. Simply, the city
>>"caved". Candidly, to me that action is a public insult as it is
>> offensive
>> to one credulity. The reason they assign is that since the Developer sued
>> the City may lose and then the Developer would be entitled to build a
>> larger
>>project. Certainly, there are risks in any litigation. But how much of
>> a
2
>> risk in this litigation? And is it a risk that should be taken?
. >>
>>
I have confidence in our Court's and in the Rule of Law. Laws
>> are
>> enacted to protect the rights of the public. It is the Public Policy of
>> this State and most other States to protect and preserve the Publics
>> health,
>> welfare and safety.
>>
>> One must ask whether the Commissions had a legal opinion from
>> their
>> City Attorney whether the Temporary Moratorium, as weak as it is, would
>> withstand a legal attack. They should have. If they did not, then someone
>> missed the boat. (I personally urged that they seek an Attorney GeneralIs
>> opinion. ..and they refused. Lest we forget, they did seek another
>> Opinion
>> from Special Counsel. It is logical to assume that they would not have
>> adopted the Temporary Moratorium if their lawyers counseled was infirm.)
>> So
>> what caused a change that would justify them caving to this Developer??
>> Or
>> was it just another act of poor legislative judgment?
>>
>> In sum, hopefully the people of this Community will protest the
>> Commission's untoward action(s) in a massive Town Hall type meeting and
>> thereafter converge in mass at the Commission Meeting. If the
>> Commission'S
>> majority fail once again to heed the expressed will of their
>> Constituents,
>> all available legal options should be considered for proper redress.
>>
>> Again, the issue is the "OX" of ALL of the resident voters of the
>> entire City. Any mass meeting and/or coordinated effort should include
>> our
>> neighbors at Point East, the Waterways (Point). etc.
>>
>>
>>
>> ---------------------------------------------------------------------------
>> The following is my 1/21 email to POA President Carlos Videuira:
My best to all, Burton Young
>>
>> Carlos:
>>
>> I am forwarding 1000 Board Member Harvey Shapley1s email to you because
>> he
>> raises a good question about what can be done. How will the POA protect
>> residents1 interests from this monstrosity? How will this affect
>> property
>> values?
>>
>> I spoke with Biscayne Cove President Madeline Giardella and they are
>> hiring
>> land use attorney W. Tucker Gibbs to represent their association to fight
>> Lincoln pointe. They are ready to talk to the POA and have been for a
>> long
>>time. Being that the POA owns NE 31st Court I wonder if there is any way
>> to
>> use that to our advantage. Can we install a drawbridge, toll booth, oil
>> slick machine or maybe narrow the road by 80%? (grin)
>>
>> This issue affects more than half of all unit owners on Williams Island
>> and
>> ALL of the unit owners because of the influx of another 1000 vehicles
>> coming
>> through our intersection on 183rd Street not counting hundreds more
>> vehicles
>> on top of that from pennisnsula II and Minto. What effect will having
3
>> another 1000 vehicles in close proximity to our front gate do to our
>> desire
>> to close the open lane and change the front gate entrance and traffic
>> flow?
>> What happens in case of an emergency?
>>
>> I have copied some other residents on this ernail in the hope that we may
>> be
>> able to put our heads together and come up with a solution.
>>
>>
>> George
>>
>>
>> The following is Frank Mengrone's email to Keith Marshall (6000 POA Rep)
>>
>> Keith Marshall,
>> Laurie Allen has added the Lincoln pointe matter (see excerpts below) to
>> the
>> Agenda of the upcoming POA Town Hall meeting at the 6000 building.
>> She suggests as many people as possible attend the Town Hall meeting at
>> the
>> 6000 building to show the resident's concerns about the development of
>> Lincoln Painte.
>> She will contact Mayor Susan Gottlieb and requests that we all encourage
>> Billy Joel and Bob Diamond to attend.
>> The POA board must take a stand on this issue for the Williams Island
>> Residents.
>> This cannot be accomplished by a small group of residents trying to raise
>> money to fight the issue, the POA board must take on this issue as a
>> representative body and invite the surrounding communities join us, thus
>> creating a massive block of voters that Aventura will not be able to
>> dismiss
>> and will also vindicate Mayor Susan Gottlieb for her vote against the
>> Lincoln Pointe project.
>> The POA board must commission a study to look at the accumulative adverse
>> effects this will have on the safety and welfare of the Williams Island
>> residents.
>> One of the consequences of this issue will be that you will never be able
>> to
>> drive on or off Williams Island, that includes fire, safety and ambulance
>> vehicles.
>> The findings of the committee can be used as the cause of action to go
>> into
>> court.
>> In addition to the above, as a direct result of the Minto and Lincoln
>> pointe
>> development our property values will surely depreciate.
>> If you cannot get to williams Island, or when you can, you have to
>> navigate
>> thru hundreds of trucks and workers, combined with the loss of IlQuiet
>> Enjoyment" of your home, as well as the obvious safety issues, williams
>> Island will lose a great deal of its appeal.
>> Sincerely,
>> Frank Mengrone
>> Edited Excerpt from the 1-19-06 Burton Young email
>>
>> >1 was just advised that the Aventura Commission within the last 24 hours
>> >gave a
>> pass and a release from the Temporary Moratorium for the construction of
>> a
>> multi-unit project at Lincoln Point. The vote was 5-1 with the Mayor
>> being the
>> only vote in opposition. Evidently, the Developer threatened to sue or
>> did sue
>> in order to escape the restraints of the temporary moratorium and the
>> City
4
>> thought it best to, in effect, cave.
.>>
>> Edited Excerpt from 1-21-06 Laurie Allen email
>>
>> >> I have added an Agenda item to this matter. I suggest that you
>> >> encourage as
>> many people as possible to attend the Town Hall meeting at 6000 building
>> to show
>> the resident's concerns about the development of Lincoln Painte.
>> I will invite Susan, but who should really attend is Bob Diamond and
>> Billy
>> Joel.
>>
>> Edited Excerpt from 1-21-06 George Tower email
>>
>> >>1 spoke with Biscayne Cove President Madeline Giardella and they are
>> :>>hiring
>> land use attorney W. Tucker Gibbs to represent their association to fight
>> Lincoln Pointe. They are ready to talk to the POA. Being that the POA
>> owns NE
>> 31st Court I wonder if there is any way to use that to our advantage.
>>
>>
>> The following is an email from 1000 POA Rep Laurie Allen to Frank
>> Mengrone:
>>
>> Frank
>> I have added an Agenda item to this matter. I suggest that you encourage
>> as
>> many people as possible to attend the Town Hall meeting at 6000 building
>> to
>> show the resident's concerns about the development of Lincoln Painte.
>>
>> I will invite Susan, but who should really attend is Billy Joel, Bob
>>Diamond. In fact, we should insist they attend. Start an email campaign
>> to
>> that effort, and shame them into it.
>>
>> Laurie
>>
>> Dr. Bob Fabric's reply to Frank Mengrone below:
>>
>> Hi Frank:
>>
>> I couldn't be any more in agreement. Terrific email!
>>
>> It is time for our POA to show their cahones (to use a comment
>> from Laurie Allen). This should be an issue that the entire POA
>> Board unanimously stands "behind'! and if not we need to kick those
>> in disagreement in their "behind" and get rid of them ASAP as not
>> representing their own constituency.
>>
>> I agree... we should allow those Commissioners that voted for
>> Lincoln Point to explain themselves or allow them to change their
>> vote. If this isn't accomplished then one only wonders if there is
>> a process to remove a Commissioner that votes against his
>> constituency. Certainly, any Commissioner that votes for and
>> continues to vote for Lincoln should consider his Aventura political
>> life over ... even the one that wants to run for Mayor against
>> S. Gottlieb.
>>
>> Your comments were all on point and I am in total agreement with
>> you. I am thankful that we have folks on the Island that are like you
>> and are as articulate in expressing themselves. Thank you.
>>
>> Bob
>> Robert K. Fabric, M.D.
5
>>
.>> From Eddie Barrocas on 1/22
>>
>> > I will be very willing to show my support
>> > meeting as well as encourage others to do
>> > into the
>> > information loop.
>> > Feel free to count on Patty and me
on this issue and attend the
so, thanks for getting me
for any help that may be needed.
>> >
>> > Eddie Barrocas
>>
>>
>> Finally I think that we should not forget our new neighbors in Bella Mare
>> who may not have been around last year when I first raised this issue.
>> Please make it a point to extend yourselves to our new neighbors in 6000
>> in
>> the spirit of neighborly brotherhood. I am including an email below from
>> a
>> new 6000 resident. - George Tower
>>
>> 22 January, 2006
>>
>> All,
>>
>> Today's e-mail communiques were my first knowledge of this situation. I
>> think the best way to make an impact on the Commission would be a
>> petition
>> (left in each building on williams Island) signed by as many people as
>> possible. This could have an effect on the outcome by delivering it to
>> the
>> Commission, better than merely going to the meeting and speaking and be
>> side-stepped and ignored.
>>
>> I, too, would be willing to help in any way I can.
>>
>> Harold Richman
>> Bella Mare
>>
>>
>>
>> The following two emails have been sent to the two City Commissioners,
>> Bob
>> Diamond & Billy Joel, who voted against resident's interests in favor of
>> the
>> Developer's interest. They are Bob Diamond of the 3000 Building and
>> Billy
>> Joel of the 2600 Building.
>>
>> The following was sent by Harvey Shapley, a Director of the 1000 Building
>> Board.
>>
>> Dear Bob and Bill,
>>
>> I respectfully request that you advise me as to why you both voted for
>> the
>> Lincoln Point project to go forward?
>>
>> It is a shame that the
>> no) to approve Lincoln
>> when we went to to the
>> The
>> entire council voted against the developer except you Billy, when you
>> voted
>> for further compromise negations, and one other Council member.
City council voted yes (with only the
Point. We Islanders were all so happy
Council meeting and the developer was
Mayor voting
this summer,
thwarted.
>>
>> We face a nightmare between the construction period of Lincoln and Minto
>> and
6
>>.then the enormous amount of additional traffic if Lincoln is built.
'>>
>> Please advise your reasoning.
>>
>> I have been told that there will be a another Council meeting on 2/1/06,
>> at
>> which there will be another vote on Lincoln point.
>> If this is so please change your vote and stop Lincoln Point.
>>
>> Sincerely,
>> Harvey Shapley
>>
>> cc: 1000 Island Blvd BOD
>> --------------------------------
>> The following was sent by 2800 resident Andres Weisz to Bob Diamond &
>> Billy
>> Joel
>>
>> Dear Sirs:
>> The purpose of this E-Mail is to clearly state my opposition to your
>> decision to allow the construction of a high rise at Lincoln Point
>> as well as your previous decision on the Minto Developers Building.
>> Your positive vote on these two matters is clearly against the
>> interests of the present inhabitants of Williams Island but even
>> worse it is against the interests of all of the residents of Aventura,
>> who will see their llcity of excellence II converted into an ugly and
>> untenable llManhattan Southll.
>>
>> Just because you are threatened by a lawsuit from the developers
>> of Lincoln Point, you don't have to run like frightened chickens and
>> do their bidding.
>>
>> When we elected you as commissioners, we entrusted you with the
>> common good and not with the increase of the taxable property
>> base which means more money in the coffers of the city of Aventura.
>> I urge you to deny final approval to the developer of Lincoln Point
>> and act according to your sworn duty of defending the interests of
>> the city of Aventura and its residents.
>>
>> Yours Truly,
>>
>> Andres Weisz
>> 2800 Island Blvd.
>> Apt. 3002
>>
>>
>> Islanders. I think the time has come to hold every Aventura Commissioner
>> publicly accountable including, Bob Diamond & Billy Joel, for what they
>> have
>>done. If they have a legitimate reason for abandoning the very residents
>> (who elected them to protect us) I am sure we would like to hear what
>> they
>> have to say.
>>
>> Those of you who have media contacts and expertise may wish to give this
>> some thought. The time has come to draw the line in the sand with our
>> Commissioners and to do so openly before the eyes of the public.
>>
>>
>> George Tower
>> Williams Island Residents Coalition
>>
>>
>>
>
7
Subj: Fw: left off Bisc Cove letter attached to GT email no Gurland's a busy beaver!
Date: 1/23/20067:42:41 A.M. Eastem Standard Time
From: jeruc03@bellsouth.n~.
To: JUDGERD@AOLCOM, ARL4271027@AOLCOM
cc: BILLYJOEL13@GMAIL.COM
FYI...
jerry...
--- Original Message ----
From: Phrases1@aol.com
To: RodLWhile@aol.com ; SnavePJ@aol.com ; JEB2800@aol.com ; JERUC03@belisouth.net ;
HARIAN@aol.com ; BReich@williamsislandclub.com
Sent: Monday, January 23, 20066:44 AM
SUbject: left off Bisc Cove letter attached 10 GT email ... Gurland's a busy beaver!
Monday, January 23, 2006 America Online: Ar14271027
Page 10f2
Page 2 01'2
July 18, 2005
Dr. Sleven GIAIIIld
PresideIt
7OO0lolond Bcul....d Co_nium__
7000 I5Imd Bculll\llllll
Av8nlura, FU316~
newtJr. Gurln:
I 8m writing to \'llU alllle suggedon of Mr. George TOWIlr. wllllllll ta/G been ~gtto _nthe
PillI&IlIUlr ofnegollaklg an agreement beIweelll!lscavne eM Conoomillium 811il Willems lslallilCl:llWl1In;J toe
o.rner.l~ lIIlcl_ orNE 31" Court"' ft roIatIGlD the prcposed dlmlIopIll8n1 of the UncGIn Paim plllllerty.
Mr. T:lWl!t hl!llinftnncd me that reslden.s of Y:lUf ouilrliny WUII1d be i1d"","'y ~ by:;ur;ll develIpl.-enl
My Board lIaS Ill. ~ aIIIlnlns CNertlle \Ie81'S 1D ()JlerI a dil1lDOue urilh tle Williams !slalll Property OiiMr's
AssOClation..,rdf1g t1Is opportunity. AppruxinaIEIy 10 J'lIIIllIGO, SarnJeI BrollyfCm1er BoaId TIllaIlUIllf. wroID
1D JOII' PIllPI!l1:Y OM-eI"s A'lIOCialioIl. TIIIO 12) ,ears ago, Gha1ls Spamlck lloarIlllic8-l'nlsillent. nIllIe IISt'blll
roquo&l&1Dyour ~ Owru'. AsSlldallon. BoIIIIetltn ~ .n.~.
For jIMII Blsca,ne Cove CoIllIlrMium h~ ~d m1111lin1ait18d 31- Com. We diiIy c'-r the roidflun
debris; ~y Illlil'llllnthe '-ndo.i.....'II iIIII we proyicIIllhe IlgIllInG on the/'lllllllll weI.
Onbel1oldlh. Board of llireclrn of~ DcNe CMIomIdum I would lire III _ JIOU or.., _ q_
lIlSldeli represelllaIIl'I(sI film WlllII"& I$I8lld ., meet wi4h me 1D dillCllS$ lI'lI)'S that "'lIl!Ir Iorm a llr1l8gic
e11i1rw;e III uplole OIH"I"ltJblllly bllle1icl8l 9011101 poolecIny the ~1Is oIbol1dlloc.)'lIIO Cow CoodCllnllMlm anc:
WillIam. Istlnd6um lI1e pnlIIOllld oIiwIopnIIlII 01118 LInooIn PoInlt~. TlIadevlilapmen: \OOlAd _~.
ollWld 1llIIde'llS' .tellS Bum jW' Island ana 011" bullClng alii, more IrqMlr1allllf', negallueIy ~ lll1' prqJeI\'
.ahles.
I am;riso willi", III corr.e end meet'lllilll \'llU 0IId the ofIer braiclny PreSiden'.s on Wliams IslMd b disCIlSS ttls
furt!l8r. All neiglQlring CGIlIIomiW1ls we.1lIy sland to berm!!rc:rn estllllslling IllI GPetlIne d aanmurlcaIo.,
willi one another.
I mer be reachlld It 1he oIIice \305) 935-4665 or It my mil (3Cl5) TlSJ043,
SinCl!ll!ly.
/:z~~~~.#5
Mldaline GllJdIelc
El~ Co,", Orlndoninillm Ilo8rd I"rosIdent
18151 N.r:. 31 (\'111- :'jui~ JOJ ."^..mnlJ'B. Flortda :rrNI . :lOo-9J5-1:,6b. f~. ~~3-~~B3
Monday, January 23, 2006 America Online: Arl4271027
Page 1 of2
Subj:
Date:
From:
To:
Fwd: Lincoln Point
1/19/20067:55:13 P.M. Eastern Standard Time
Abe3QQO
bjoel@galenetwork.com, Judge RD
Teli me this isn't lrue, and if il is, whallhe justificalion may be?
AI Epstein
Forwarded Message:
Subj: RE: Lincoln Point
Date: 1/19/20066:01:10 P.M. Easlern Slandard Time
From: BYoung@ybkglaw.com
To: wfelder@belisouth.net, Shestein@bellsouth.net, epst67@beilsouth.net, widc306@belisouth.net,
EdwardDDavis@aol.com, kriya 1 08@comcast.net, harveyspear@yahoo.com,
hman305@comcasl.nel, JSKLLONE@aol.com, SmileK@aoLcom, AJUB26@yahoocom,
TheSydneyStyle@aol.com, Abe3000@aol,com, akluger@kpkb.com, alvin.epstein@ubs.com,
DAA1318@aol.com
Sent from the Internet (Details)
And weli as il should be. Maybe lhal wili slir lhem inlo some type of posilive aclion. I was advised lhal our two
Wiliiams Island Commission members voled for releasing Lincoln Point from lhe Temporary Moralorium and 10
aliow lhe slruclure 10 be buill. Burton
From: Wilma Felder [mailto:wfelder@belisouth.net]
Sent: Thursday, January 19, 2006 5:56 PM
To: Burton Young; bill steiner; Carol Epstein; David Cohen; Ed Davis; George Tower; Harvey Spear; Henry
Kramarz; Janet Laine; Kutt1er, Myles; Robert Kramer; Sydney Davis; Abe3000@aol.com; akluger@kpkb.com;
alvin.epstein@ubs.com; David Aronowitz
SUbject: Re: Lincoln Point
For lhe residents in 1000,2000, and Villa Flora, lhis is their Minto.
--- Original Message --
From: Burton Young
To: bili sleiner ; Carol Epstein; WIDC306@bellsoulh.nel ; Ed Davis; George Tower; H. Joel Rahn ; Harvey
Spear; hman305@comcast.nel; Janel Laine; Kuttler, Myles; Robert Kramer; Sydney Davis;
Abe3000@aoLcom; akluger@kpkb.com; alvin.epslein@ubs.com; daa1318@aol.com;
EdwardDDavis@aol.com ; wfelder@belisouth.net
Sent: Thursday, January 19, 2006 5:29 PM
Subject: Lincoln Point
I was jusl advised lhat lhe Aventura Commission within the last 24 hours gave a pass and a release from the
Temporary Moratorium for the conslruction of a multi-unit projecl al Lincoln Point. The vote was 5-1 with lhe
Mayor being the only vote in opposilion. Evidently, lhe Developer lhreatened to sue or did sue in order 10
escape the restrainls of the temporary moratorium and the City lhoughl it best 10, in effect, cave.
I was told thaI the City Attorney advised thaI a negotiated settlemenl was the better oplion since if the City did
nol prevaillhen lhe projecl at Lincoln Poinl would be more extensive. I was further lold thaI there will be
anolher Commission Meeting for this becomes final.
This e-mail isjuslinformational.llis not my purpose 10 lead a charge of protesl...bul il does nollake a
Rhodes Scholar 10 affirm whall, and many others, warned about before. The Temporary Moratorium was a
political fake because il aliowed exceptions. And now, the exceptions lhal il did aliow, a majority of our
Commissioner's are waiving under lhe banner of a "Settlemenl".
When we see what will happen to the present residents at Lincoln Point, the residents of Wiliiams Island
when lhe Minto project starts, and with the present conslruction underway at the end of Williams Island Blvd.,
lhere wili be crealed a maiQrthreat 10 our heallh, welfare and safety (and almost addilionallraffic problems
Friday, January 20, 2006 America Online: Judge RD
Page 2 01'2
that wili be permanent in nature).
It jusl boggles the mind that a majority of our Commissioner's can make judgments, wittingly or unwittingly,
like this one which is so deleterious to the people that they represent. The argument that a negotiated
settlemenl is better lhan risking an adverse Court judgmenl in a silualion such as lhis is nOlhing more lhan a
bunch of hogwash. They should lake a risk for the people thaI they represent. If lhe City 1051 and Lincoln
Poinl was able 10 conslrucl a larger project lhe same would nol be much worse than the projecl thaI the City
is no caving in on. II wili be a nighlmare eilher way. It was a logical and it would have been a courageous
"people" act for our Commissioner's to take a risk that our Courts would come down on the side of the people
which our Court's lry 10 do when lhe health, welfare and safety of the people are involved. The Court's did
so before. And lhe likelihood is lhallhey would do il again. Bul our Commissioner's don'l seem to have lhal
confidence and appear 10 be on anolher polilicallrack. And thaI is lruly unfortunate. Burton Young
Friday, January 20, 2006 America Online: Judge RD
Subj: Lincoln Point and Minto development
Date: 1/20/2006 3:58:34 P.M. Eastern Standard Time
From: anweisz@bellsouth.ne'
To: bjoel@galenetwork.com, judgeRD@aOl.com
Dear Sirs:
The purpose of this E-Mail is to clearly state my opposition to your
decision to allow the construction of a high rise at Lincoln Point
as well as your previous decision on the Minto Developers Building.
Your positive vote on these two matters is clearly against the
interests of the present inhabitants of Williams Island but even
worse it is against the interests of all of the residents of Aventura,
who will see their "city of excellence" converted into an ugly and
untenable "Manhattan South".
Just because you are threatened by a lawsuit from the developers
of Lincoln Point, you dont have to run like frightened chickens and
do their bidding.
When we elected you as comissioners, we entrusted you with the
common good and not with the increase of the taxable property
base which means more money in the coffers of the city of Aventura.
I urge you to deny final approval to the developer of Lincoln Point
and act accordingto your sworn duty of defending the interests of
the city of Aventura and its residents.
Yours Trutly,
Andres Weisz
2800 Island Blvd.
Apt. 3002
Friday, January 20, 2006 America Online: Judge RD
Page 1 of 1
Page lof2
Subj: A ROOM WITH NO VIEW
Date: 1/20/20062:59:14 P.M. Eastern Standard Time
From: knya108@comcast.ne"
To: kriya108@comcast.net
Greetings Islanders:
The email below is from MedilerraneanVillage residenl Burton Young. II
seems that two of our Aventura City Commissioners, Bob Diamond of lhe 3000
Building and Silly Joel of lhe 2600 Building have voted against Williams
Island residents in favor of the Lincoln Poinl Developer and aliowing lhe
Lincoln Poinl Tower projecllo be buill across from Williams Island adjacenl
to Biscayne Cove Condominium.
For those of you who would personaliy like to ask your 2 feliow Williams
Island residenlslCity Commissioners (Billy & Bob) whal molivaled them 10
vote againsl the interesls of Williams Islanders, who helped 10 elecllhem
inlo office to begin with, you may email them directly allhe foliowing
email addresses. You may recalilhat il was the Avenlura City Commissioners
that also voted to give Minlo the green lighl too.
BOB DIAMOND judgeRD@aol.com
BILLY JOEL bjoel@galenetwork.com
Every single apartmenl on Williams Island that has windows that face wesl,
north, or northwest wililose part of their view by this purported 40 slory
lower. It should add about 1000 cars going lhrough our 183rd street
interseclion in fronl of our fronl gale. Many apartments may also be casl
into the shadows during lhe early afternoon. It remains to be seen to what
extent the Island Club pool, Med Village Pool, and 6000 pools will be
affecled by early afternoon shadows.
George Tower
Wiliiams Island Residents Coalition
Wlowners.com
>
>
> - Original Message ---
>
> From: Burton Young <mailto:BYoung@ybkglaw.com>
>
> To: bill sleiner <maillo:Sheslein@belisouth.nel> ; Carol Epstein
> <maillo:epst67@belisouth.nel> ; WlDC306@belisoulh.net ; Ed Davis
> <maillo:EdwardDDavis@aol.com> ; George Tower <maillo:kriya108@comcast.net>
> ; H. Joel Rahn <mailto:Jomarahn@belisoulh.net> ; Harvey Spear
> <maillo:harveyspear@yahoo.com> ; hman305@comcast.nel ; Janel Laine
> <mailto:JSKLLONE@aOl.com> ; Kuttler, Myles <maillo:SmileK@aol.com> ; Robert
> Kramer <maillo:AJUB26@yahoo.com> ; Sydney Davis
> <maillo:TheSydneyStyle@aol.com> ; Abe3000@aol.com ; akluger@kpkb.com ;
> alvin.epstein@ubs.com; daa1318@aOl.com; EdwardDDavis@aOl.com;
> wfelder@belisouth.nel
>
> Sent: Thursday, January 19, 20065:29 PM
>
> Subject: Lincoln Poinl
>
>
> I was just advised lhal the Aventura Commission wilhin the lasl 24 hours gave
Friday, January 20, 2006 America Online: Judge RD
Page 2 01'2
> a pass and a release from the Temporary Moratorium for the construction of a
> multi-unit project al Lincoln Point. The vote was 5-1 with lhe Mayor being
> the only vole in opposilion. Evidently, lhe Developer threatened 10 sue or
> did sue in order to escape the restraints of the temporary moratorium and the
> City thought it best to, in effect, cave.
>
> I was told thaI the City Attorney advised thaI a negotiated sett1emenl was
> the better option since if lhe City did not prevail then lhe projecl al
> Lincoln Poinl would be more extensive. I was further lold that there will be
> another Commission Meeling for lhis becomes final.
>
> This e-mail isjuslinformalional.llis not my purpose 10 lead a charge of
> protest...but it does not take a Rhodes Scholar to affirm what I, and many
> olhers, warned about before. The Temporary Moratorium was a political fake
> because it aliowed exceplions. And now, the exceptions thaI it did aliow, a
> majority of our Commissioner's are waiving under lhe banner of a
> "Setllemenl".
>
> When we see whal will happen 10 lhe presenl residents at Lincoln Point, lhe
> residents of Wiliiams Island when lhe Minto project starts, and with the
> presenl conslruction underway at the end of Williams Island Blvd., lhere
> wili be created a major lhreat to our health, welfare and safety (and almost
> additional traffic problems thaI wili be permanent in nalure).
>
> It just boggles the mind lhat a majority of our Commissioner's can make
> judgments, wittingly or unwittingly, like this one which is so delelerious
> 10 lhe people lhat they represent. The argumenl that a negoliated settlemenl
> is better than risking an adverse Court judgment in a situalion such as lhis
> is nothing more than a bunch of hogwash. They should take a risk for lhe
> people that lhey represent. If lhe City 1051 and Lincoln Poinl was able to
> conslruct a larger project lhe same would nol be much worse lhan the projecl
> lhat the City is no caving in on. It will be a nightmare either way. It was
> a logical and il would have been a courageous "people" acl for our
> Commissioner's to lake a risk lhat our Courts would come down on the side of
> the people which our Courts try to do when the health, welfare and safety of
> lhe people are involved. The Courts did so before. And the likelihood is
> lhat lhey would do it again. Bul our Commissioners don't seem to have lhat
> confidence and appear to be on anolher political track. And lhal is truly
> unfortunate. Burton Young
>
>
-- End of Forwarded Message
Friday, January 20, 2006 America Online: Judge RD
Page 20f3
Dear Sir:
I am a fellow owner at Williams Island and I am shock to hear that you voted against the
interest, healt and well being of the residents of the Island where you yourself live.
I can not understand why someone would do something to hurt himself and his neighbors
We elected people, so we tought, that would stand up to anybody, defending our rights to
peacefulI and healty life in a community such as Williams Island, but it looks like we made
mistake and we did exactly the opposite.
I strongly urge you to reconsider your position to STOP the Lincoln Point Tower project, s.
our healt and way of life wont be affected by this developers.
Trully yours
Dr. Israel Kleiman
1000 Island Blvd.
apt 703
Friday, January 20, 2006 America Online: Judge RD
Subj: A ROOM WITH NO VIEW==Que passe?
Date: 1/20/20063:16:38 P.M. Eastern Standard Time
From: HGavemuf2
To: bjoel@galenetwork.com
CC: Judge RD
In a message dated 20101/2006 2:59:12 P.M. Eastern Standard Time.
kriya108@comcast.netwrites:
Forwarded Message:
Subj: A ROOM WITH NO VIEW
Dale: 1/20/20062:59:12 P.M. Eastern Slandard Time
From: kriya108@comcast.nel
To: kriya108@comcast.net
Sent from the Internet (Details)
Greetings Islanders:
The email below is from Mediterranean Village resident Burton Young. It
seems that two of our Aventura City Commissioners, Bob Diamond of the 3000
Building and Billy Joel of the 2600 Building have voted against Williams
Island residents in favor of the Lincoln Point Developer and allowing the
Lincoln Point Tower project to be built across from Williams Island adjacent
to Biscayne Cove Condominium.
For those of you who would personally like to ask your 2 fellow Williams
Island residents/City Commissioners (Billy & Bob) what motivated them to
vote against the interests of Williams Islanders, who helped to elect them
into office to begin with, you may email them directly at the following
email addresses. You may recall that it was the Aventura City Commissioners
that also voted to give Minto the green light too.
BOB DIAMOND judgeRD@aol.com
BILLY JOEL bjoel@galenetwork.com
Every single apartment on Williams Island that has windows that face west,
north, or northwest will lose part of their view by this purported 40 story
tower. It should add about 1000 cars going through our 183rd street
intersection in front of our front gate. Many apartments may also be cast
into the shadows during the early afternoon. It remains to be seen to what
extent the Island Club pool, Med Village Pool, and 6000 pools will be
affected by early afternoon shadows.
George Tower
Williams Island Residents Coalition
Wlowners.com
Friday, January 20, 2006 America Online: Judge RD
Page I 01'3
Page 2 01'3
>
>
> ----- Original Message -----
>
> From: Burton Young <mailto:BYoung@ybkglaw.com>
>
> To: bill steiner <mailto:Shestein@bellsouth.net> ; Carol Epstein
> <mailto:epst67@bellsouth.net> ; WIDC306@bellsouth.net ; Ed Davis
> <mailto:EdwardDDavis@aol.com> : George Tower <mailto:kriya108@comcast.net>
> ; H. Joel Rahn <mailto:Jomarahn@bellsouth.net> ; Harvey Spear
> <mailto:harveyspear@yahoo.com> ; hman305@comcast.net ; Janet Laine
> <mailto:JSKLLONE@aol.com> ; Kuttler, Myles <mailto:SmileK@aol.com> ; Robert
> Kramer <mailto:AJUB26@yahoo.com> ; Sydney Davis
> <mailto:TheSydneyStyle@aol.com> ; Abe3000@aol.com ; akluger@kpkb.com ;
> alvin.epstein@ubs.com ; daa1318@aol.com ; EdwardDDavis@aol.com ;
> wfelder@bellsouth.net
>
> Sent: Thursday, January 19, 2006 5:29 PM
>
> Subject: Lincoln Point
>
>
> I was just advised that the Aventura Commission within the last 24 hours gave
> a pass and a release from the Temporary Moratorium for the construction of a
> multi-unit project at Lincoln Point. The vote was 5-1 with the Mayor being
> the only vote in opposition. Evidently, the Developer threatened to sue or
> did sue in order to escape the restraints of the temporary moratorium and the
> City thought it best to, in effect, cave.
>
> I was told that the City Attorney advised that a negotiated settlement was
> the better option since if the City did not prevail then the project at
> Lincoln Point would be more extensive. I was further told that there will be
> another Commission Meeting for this becomes final.
>
> This e-mail is just informational. It is not my purpose to lead a charge of
> protest...but it does not take a Rhodes Scholar to affirm what I, and many
> others, warned about before. The Temporary Moratorium was a political fake
> because it allowed exceptions. And now, the exceptions that it did allow, a
> majority of our Commissioner's are waiving under the banner of a
> "Settlement".
>
> When we see what will happen to the present residents at Lincoln Point, the
> residents of Williams Island when the Minto project starts, and with the
> present construction underway at the end of Williams Island Blvd.. there
> will be created a major threat to our health, welfare and safety (and almost
> additional traffic problems that will be permanent in nature).
>
> It just boggles the mind that a majority of our Commissioner's can make
> judgments, wittingly or unwittingly. like this one which is so deleterious
> to the people that they represent. The argument that a negotiated settlement
Friday, January 20, 2006 America Online: Judge RD
> is better than risking an adverse Court judgment in a situation such as this
> is nothing more than a bunch of hogwash. They should take a risk for the
> people that they represent. If the City lost and Lincoln Point was able to
> construct a larger project the same would not be much worse than the project
> that the City is no caving in on. It will be a nightmare either way. It was
> a logical and it would have been a courageous "people" act for our
> Commissioner's to take a risk that our Courts would come down on the side of
> the people which our Courts try to do when the health, welfare and safety of
> the people are involved. The Courts did so before. And the likelihood is
> that they would do it again. But our Commissioners don't seem to have that
> confidence and appear to be on another political track. And that is truly
> unfortunate. Burton Young
>
>
------ End of Forwarded Message
Friday, January 20, 2006 America Online: Judge RD
Page 3 of3
Subj: FW: Lincoln Point
Date: 1/20/20064:33:51 P.M. Eastern Standard Time
From: Stuart@gelierdesrgngroup.corr
To: bjoel@galenetworkcom, Ar14271027@aOl.com
GELLER DESIGN GROUP, ING.
20774 WEST DIXIE HIGHWA Y
AVENTURA FL 33180
TEL (305) 937-0111
FAX (305) 932-1912
email: stuart@geflerdesigngroup.com
From: GloralOO@aol.com [mailto:GloraIOO@aol.com]
Sent: Friday, January 20, 2006 8:24 AM
To: DESIDER120@aim.com; Ezg123@aol.com; fjwerner@belisouth.net; CGHH23@aol.com;
MMeisterM@aol.com; ONL YELEANOR@aol.com; SOSPOWELL@aol.com; MRosen4496@aol.com;
PSS502@aol.com; RMS@AbramsAnton.Com; SkinKor40@aol.com; Stuart@gellerdesigngroup.com;
RMSwarte@aol.com; bob.f1o.wemer@hwhome.com; wfelder@belisouth.net; Jakepaulen@aol.com
Subject: Fwd: Lincoln Point
FYI !!!
NO FURTHER COMMENT IS DUE
From: <JSKLLONE@aOl.com>
To: <breich@mycingular.blackberry.nel>,
<CGHH23@aoLcom>,
<widc306@belisoulh.nel>,
<lmc1403@earthlink.nel>,
<DICKROSS5@aol.com>,
<Dicsan 1 OOO@aol.com>,
<Phrases1@aol.com>,
<SnaveP J@aol.com>,
<hfriedman@belisoulh.nel>,
<JLGarcia1@DadeSchools.nel>,
<GloraIOO@aol.com>,
<DONDBG52@aol.com>,
<HARIAN@aOl.com>,
<SWEETPJRJ@aol.com>,
<Jeri3000@aol.com>,
<LNat2@aol.com>,
<LenoreT18@aol.com>,
<TobyNLevin@aol.com>,
<rpmeyer1 013@holmail.com>,
<MKart78796@aol.com>,
<annenepo@brownandbigelow.com>,
<OlgaPalmer@aol.com>,
<PSS502@aol.com>,
<smcnally@williamsislandclub.com>,
<loge36@belisouth.nel>,
<Bodybuilde@aOl.com>,
<CaroIiD333@aol.com>,
<RodLWhile@aol.com>
Subject: Fwd: Lincoln Poinl
Dale: Thu, 19 Jan 200618:46:55 -0500
Friday, January 20, 2006 America Online: Arl4271027
Page lof3
ni\:;1.; L U1 J
Message-ID: <ee.23f1 97f4.31017eef@aol.com>
MIME-Version: 1.0
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boundary="---= _NextPart_000_0043_01 C61 DDF .341 AEC50"
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FYI..
janel
From: "Wilma Felder" <wtelder@belisoulh.nel>
To: "Burton Young" <BYoung@ybkglaw.com>,
"bili steine~' <Sheslein@belisoulh.net>,
"Carol Epstein" <epst67@belisouth.net>,
"David Cohen" <widc306@belisouth.nel>,
"Ed Davis" <EdwardDDavis@aol.com>,
"George Towe( <kriya108@comcasl.net>,
"Harvey Spea~' <harveyspear@yahoo.com>,
"Henry Kramarz" <hman305@comcast.nel>,
"Janel Laine" <JSKLLONE@aol.com>,
"Kuttler, Myles" <SmileK@aol.com>,
"Robert Krame~' <AJUB26@yahoo.com>,
"Sydney Davis" <TheSydneyStyle@aol.com>,
<Abe3000@aol.com>,
<akluger@kpkb.com>,
<alvin.epstein@ubs.com>,
"David Aronowitz" <DAA1318@aol.com>
References: <254CE1 CF AB598C48BE61 07 A88A8BD0581 D5870@server2.lawoffice1.local>
Subject: Re: Lincoln Point
Date: Thu, 19 Jan 2006 17:55:42 -0500
Message-ID: <002d01 c61 d4b$7a67g800$7301 a8cO@wilmady4ignvwm>
MIME-Version: 1.0
Contenl-Type: multipartlallernalive;
boundary="--= _NextPart_000_003F _01C61DDF.34187B50"
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X-AOL-IP: 205.152.59.64
For lhe residenls in 1000,2000, and Villa Flora, lhis is lheir Minlo.
---- Original Message ----
From: Burton Young
To: bili sleiner ; Carol Epslein ; WIDC306@belisoulh.nel ; Ed Davis; George Tower; H Joel Rahn ; Harvey
Spear; hman305@comcasl.nel; Janet Laine; Kuttler, Myles; Robert Kramer; Sydney DavIs;
Abe3000@aol.com; akluger@kpkb.com; alvin.epstein@ubs.com; daa1318@aol.com;
EdwardDDavls@aol.com ; wtelder@belisouth.net
Sent: Thursday, January 19, 2006 5:29 PM
SUbject: Lincoln Poinl
I was just advised thallhe Avenlura Commission wilhin lhe lasl 24 hours gave a pass and a release from lhe
Temporary Moralorium for lhe construclion of a multi-unit project al Lincoln Point. The vole was 5-1 wilh the
Mayor being lhe only vole in opposilion. Evidently, lhe Developer threalened 10 sue or did sue in order 10
escape lhe reslrainls of lhe temporary moralorium and lhe City thought il besl to, in effect, cave.
Friday, January 20, 2006 America Online: Arl4271027
Page j 01 j
I was lold that lhe City Attorney advised lhat a negotiated settlemenl was the better oplion since if the City did
not prevail then the project at Lincoln Point would be more extensive. I was further lold lhallhere will be
another Commission Meeting for this becomes final.
This e-mail isjuslinformalional.llis nol my purpose 10 lead a charge of protest...bul it does not take a
Rhodes Scholar to affirm whall, and many olhers, warned aboul before. The Temporary Moralorium was a
polilical fake because il aliowed exceptions. And now, the exceplions that il did aliow, a majority of our
Commissioner's are waiving under lhe banner of a "Settlement".
When we see what will happen 10 the presenl residents al Lincoln Point, lhe residenls of Williams Island when
lhe Minlo project starts, and wilh lhe presenl conslruction underway al the end of Wiliiams Island Blvd., there
will be crealed a mtl.ior lhreallo our health, welfare and safety (and almosl addilionallraffic problems
that will be permanent in nalure).
It jus I boggles lhe mind lhal a majority of our Commissione~s can make judgmenls, wittingly or unwittingly,
like lhis one which is so delelerious to lhe people lhal they represent. The argument lhal a negolialed
settlemenl is better lhan risking an adverse Court judgment in a siluation such as lhis is nothing more than a
bunch of hogwash. They should lake a risk for the people lhal they represent. If lhe City 1051 and Lincoln
Poinl was able to conslrucl a larger project lhe same would not be much worse lhan the project thallhe City
is no caving in on. II will be a nighlmare eilher way. It was a logical and it would have been a courageous
"people" acl for our Commissione~s 10 take a risk thaI our Courts would come down on lhe side of lhe people
which our Court's lry to do when lhe health, welfare and safety of the people are involved. The Court's did
so before. And lhe likelihood is lhal they would do il again. Bul our Commissioner's don't seem to have that
confidence and appear to be on another politicallrack. And lhal is truly unfortunale. Burton Young
Friday, January 20, 2006 America Online: Arl4271 027
Page I of I
Subj: Lincoln Point
Date: 1/21/200612:47:06 P.M. Eastern Standard Time
From: Chaz41SC
To: Judge RD
If il is true lhal you voled FOR lhe Lincoln Poinl projecl, I would like 10 know why. This wili bring more traffic 10
an already ugly and disturbing problem that we are experiencing now. With LaVogue it wili be even worse and
now another high rise.......... Being a Williams Island residenll thought you would have more respect for whal
was once a beautiful and lranquil place 10 live.. We now live wilh dirt, conslruclion and lraffic thaI is impossible.
I would be interesled is your explanalion if you did vole as I heard.
Sincerely,
Susan Zingale
Saturday, January 21, 2006 America Online: Judge RD
Page I of 6
Subj: Fw: apparently, you two were not copied on this GT emaillFabric
Date: 1/20/200610:54:10 P.M. Eastern Standard Time
From: jeruco3@bellsouth.ne'
To: JUDGERD@AOLCOM, BILLYJOEL 13@GMAILCOM
Congratulations. You're now on Fabric's radar screen. He has totally lost it based on all his emails in the
last 2-3 weeks.
jerry...
--- Original Message -----
From: Phrases1@aol.com
To: JERUC03@belisouth.net
Sent: Friday, January 20, 2006 9:54 PM
Subject: apparently, you were nol copied on this GT emaillFabric
------ Forwarded Message
From: DOCFAB2000@aol.com
Date: Fri, 20 Jan 2006 18:57:33 EST
To: kriya 1 08@comcast.net
Cc: mindy279@msn.com, psquire22@msn.com, Spbaron@aol.com,
DHELEN572@aol.com, SnavePJ@aol.com, HGaventura@aol.com,
DONDBG52@aol.com, Joelhillman@aol.com, Houtkin@yahoo.com,
Jakepaulen@aol.com, jross@gbacllc.com, DRTRUPPMAN@aol.com,
BReich@williamsislandclub.com, CVidueira@Huizenga.com,
DAA1318@aol.com, DBSUTTIN98@aol.com,
Greg Ba n kh urst@wcicommunities.com, J EB2800@aol.com,
jjlgarcia@dadeschools.net, II_a Ilen@bellsouth.net,
mferna ndez@williamsislandclub.com, mj m@mindnet.org,
RodLWhite@aol.com, RSlavin3000@aol.com, ASher41569@aol.com,
bob.flo.werner@hwhome.com, Bubbe4838@aol.com, nskatty@aol.com,
DRHUGH@aol.com, HaIZelman1@aol.com, HENRILEVI@aol.com,
HStern4317@aol.com, LenoreT18@aol.com, Marfurshie@aol.com,
MMeisterM@aol.com, Silverpenni@aol.com, BYoung@ybkglaw.com,
JSKLLONE@aol.com, TheSydneyStyle@aol.com,
sgottlieb@cityofaventura.com
Subject: Lincoln Point Tower Project
Hi Folks:
Unless you don't already know, the Aventura City
Commission voted
5:1 to permit the Lincoln Tower project to proceed. A
Saturday, January 21, 2006 America Online: Judge RD
Page 2 01'6
very disappointing
turn around from the September 2005 meeting. Our
Mayor was the
only dissenting vote. I was not there and I am relying
upon Burton
Young, Esq.'s representations which I have no reason
to doubt.
I attended the Aventura City Commission meeting of
9/6/05 and actually
testified in front of the Commission along with many
other William Islanders.
I was later subpoenaed based upon my testimony.
The lawyers for Lincoln
Point Tower jerked my chain and actually served me
on Thanksgiving Day.
The sum and essence of my testimony was to revolve
about information
others testified to but perhaps failed to recognize the
importance. I still believe as I did then that the issues
I raised might be very important. If
not ... why then was I subpoenaed? I was very
thankful that Phil Vova, Esq. assisted me in the
subpoena matter.
Someone mentioned that residential roadways must
be minimally 36-feet
wide and commercial roadways must be greater than
50-feet. It was my
understanding that there is room for the 36-foot
Saturday, January 21, 2006 America Online: Judge RD
Page 3 of6
roadway but not for a 50-
foot wide roadway. The wheels began to churn and
then I got up to
testify.
I asked what the definition of a residential v
commercial dwelling. I
wanted to know what constituted a commercial
enterprise? I asked if
anyone knew if this project requested approval for any
commercial
enterprises within the Lincoln Point Tower either now
or anytime in the
future? I asked if anyone knew if a cafe, barber shop,
beauty salon, dry cleaners would be located within this
building? I then asked if a Spa
were in this building and they sold services and
beauty supplies would
that constitute a commercial enterprise? What about
the valet service,
is it run by the building or does an outside enterprise
control it? If any
valets accept monies is this considered an acceptable
fee for service?
Will a car wash service be located in this Building? Will
they have
a Limo service? These possibilities seem almost
endless.
Absolutely, no one addressed my questions or
even commented
Saturday, January 21, 2006 America Online: Judge RD
l'age 'f or 0
from the City Commission. However, the attorneys
for Lincoln Point
must have known that I was onto something and that
is why they
subpoenaed me. Wouldn't it be wonderful, if
something so simple could
help our cause. I understand that perhaps I am naive
but realistically... there might be something there. I
am just not savvy enough with Condo/Florida Law and
zoning issues to be a torch carrier. Perhaps one
of the recipients of this email would be the right
person to carry this torch.
I still feel very strong about my testimony and believe
that someone smarter
than I with a good solid legal background might be
able to make this
concept fly. Of course, I don't know the law and have
no idea what legal
cases have set the standards for case law on this
matter. But... just think... regardless of the City
Commission actions/in-actions if Lincoln Point
Tower was classified as a commercial enterprise based
upon any of the businesses mentioned then it would
no longer be up to the City Commission to determine
its fate. If they need a 50-foot wide street and there
isn't room they would have to look to the waterway
which would require major rezoning and a lot of
permissions (Army Corp. of Engineering) particularly if
dredging
might be involved.
Saturday, January 21, 2006 America Online: Judge RD
So, I ask you again... what constitutes a
commercial enterprise? I suspect (but lack the
knowledge) that I am probably off the mark. We
really need to seek alternative solutions.
Most of us remember what our Commissioners said
during this meeting.
After the meeting, I emailed all of the Commissioners
including the City Manager. The only response I
received was from Eric Soroka the City Manager
informing me that he really couldn't comment since
there
appeared to be imminent litigation.
I really don't think that the threat of litigation was the
primary concern or that
we might lose a hundred million dollars +/- (I
seriously doubt). Certainly, an astute attorney could
tie this matter up in the Courts for many years. I
really think that the Commissioners might have
abandoned their original views
since it would probably impact significantly on their
personal lives. I think that they personally didn't
wish to be tied up perhaps for several years in and out
of Depositions and in and out of Court. I think there
possibly was a selfish motive. The folks of Williams
Island need to make certain that those elected
officials that we entrusted to properly represent the
majority of us be held accountable. Most certainly
these elected officials certainly knew
Saturday, January 21, 2006 America Online: Judge RD
J U.b.... '-' "'"
how the majority of Williams Islanders wanted
them to vote. At the September meeting most of
the Commissioners seemed to give lip service
to proceeding in a proactive manner against Lincoln
Point and now just a
few months later there has been a 180 in their
thinking. What happened during this interim? Do we
need to investigate exactly how and why there
was this change of direction? Did our Commissioners
base their decision
on facts, did they base their decision on their
constituency, what exactly did they base their decision
on? Inquiring minds want to know. If you are as
much in the dark as I am then please contact your
City Commissioner
and share their answers with the rest of us less
informed individuals. The Mayor should be
complimented for holding her ground and we need to
wait and see the reasoning behind all the other
Commissioners decisions.
Bob
Robert K. Fabricr M.D.
------ End of Forwarded Message
Saturday, January 21, 2006 America Online: Judge RD
I.age I 01 I
Subj:
Date:
From:
To:
cc:
WHY?
1/20/20067:41:56 P.M. Eastern Standard Time
barigood@weblv.ne
!udgeRD@AOl.com
~joel@galenetwork.com
Genllemen,
Why? Why did you vote againsl yourself and your neighbors? Is there no honor or loyalty in you? We shali
ali suffer for your vote. This was inexcusable !!
A Neighbor
3
Saturday, January 21, 2006 America Online: Judge RD
Page I 01 lj
Subj:
Date:
From:
To:
cc:
Fwd: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
1/23/200612:06:14 P.M. Eastem Standard Time
1 ___d.'_.__
!fl ;:! ~.~~t:'~~~:;':.:.' ,~::'~~o_ __
, judgeRD@aol.com
': bjoel@galenetwork.com
Subj: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
Date: 1/23/2006 3:21:55 A.M. Eastern Standard Time
From:., .,C.:::::.-C:::::: ,,-
To: ,,,,,,,,,;:;:;;...,,, ....
Sent from the Internet ,nH ri,;'.'
Grecr:nas :~:2na2r~
f!fst. mv aDoloUles In not bemu able to include all vour emails (to avoid
. .
reaundancvl In this matter. I have been bombarded with more emalls about
thiS Issue about Bob ulamona - billY Joel - LinCOln r-'Olnt man I even
received about Minto last year and with good reason since I have been
IlIfunnea mat LinCOln POint T ower shOUld stand much bigger than any ather
bUilding on WI and In the VIcinity.
I HAVE ALREADY SENT A PUBliC iNViTATiON TO CO(vHv1iSSiUf'li:::.R bUb UIAiviUi\ju VI
Ti-iE
3000 BUILDING AND COMMISSIONER BILLY JOEL OF THE 2600 BUILDING TO SHOW
UP Al
OUR NEXT TOWN HALL MEETING ON WI TO ANSWER RESIDENTS' QUESTIONS AS
TO WHY
THFY VOTED AGAINST THEIR NEIGHRORS WHO ELECTED THEM INTO OFFICE IN
FAVOR
OF THE DEVELOPERS INTERESTS WHO DO NOT liVE HERE
Bob Diamond's email addressis:judgeRD@aol.com
Rill\! 1""I'c: "m::!il::!rlrlr"c;s is: bioe!@qalenetwork.com
I think the POA should distribute a letter to each unit owner about Lincoln
Point Tower so we are all informed and on the same page. This way everyone
will know about it since most of the people on Williams Island do not know
about it. We need better communication.
One can only wonder how Minto is going to advertise their apartments for
Page 1. ot IS
sale since I suspect that half of all the units in Minto may lose their
unobstructed water views and light from the sun. We must watch carefully to
see what disclosures they make to prospective buyers. Could this be why
Minto has not broken ground yet or announced any pricing for the apartments?
Who knows.
I have attached the July 18, 2005 letter from Biscayne Cove President
Madeline Giardella. Mr. Gurland discussed the matter at the Board meeting
over the summer and handed her letter to Jonathan Evans at that meeting and
reauested Jonathan Evans to follow UP with her. Jonathan Evans did not
respond to her. We need to build bridges to our neighbors and work together
with them for the benefit of all. This is a perfect example.
Below is a 1/22 email from Med Village resident Burton Young, Esq. involving
Bob Diamond & Billy Joel.
To All:
Finally, it seems as if there is some resemblance of a realization that
the "Ox" that is being "gored" beiongs to everyone living in Aventura,
especially in the Williams Island area (sans the Developer(s). Perhaps now
then "everyone" will mobilize into a massive voting force that will send a
clear message to the Aventura Commission that actions such as their the vote
to exclude the Lincoln Point project from the Temporary Moratorium was the
"last straw" and is just not acceptable. The Mayor is to be commended for
her dissenting vote.
The very same Commission enacted a weakened Temporary Moratorium (over
our strong objection the Commission excluded certain building projects on
the grounds that the Developer's rights were "vested"). Our Commission
then and still do refuse to recoanize that the residents of this Community
also have "vested" rights to live in an environment that ensures our
health, welfare and safety which vested rights seem to equal, if not
supersede, a Developers' vested rights.
Now our elected Commissioner's (except the Mayor) weaken the
Temporary Moratorium even more by granting another pass to another Developer
(Lincoln Point) because they were sued by the Developer. Simply, the City
"caved". Candidly, to me that action is a public insult as it is offensive
to one creduiity. The reason they assign is that since the Developer sued
the City may lose and then the Developer would be entitled to build a larger
project. Certainly, there are risks in any litigation. But how much of a
risk in this litigation? And is it a risk that should be taken?
I have confidence in our Court's and in the Rule of Law. Laws are
enacted to protect the rights of the public. It is the Public Policy of
this State and most other States to protect and preserve the Publics health,
welfare and safety.
One must ask whether the Commissions had a legal opinion from their
,.r__~..J__. T_._~_____ "'..., "'''f''I'' A'.___--=__ A__l:.__. T._..J__ nn
City Attorney whether the Temporary Moratorium, as weak as it is. would
withstand a legal attack. They should have. If they did not, then someone
missed the boat. (I personally urged that they seek an Attorney General's
opinion".and they refused. Lest we forget, they did seek another Opinion
from Special Counsel. It is logical to assume that they would not have
adopted the Temporary Moratorium if their lawyers counseled was infirm.) So
what caused a change that would justify them caving to this Developer?? Or
was it just another act of poor legislative judgment?
In sum, hopefully the people of this Community will protest the
Commission's untoward action(s) in a massive Town Hall type meeting and
thereafter converge in mass at the Commission Meeting. If the Commission's
majority fail once again to heed the expressed will of their Constituents,
all available legal options should be considered for proper redress
Again, the issue is the "OX" of ALL of the resident voters of the
entire City. Any mass meeting and/or coordinated effort should include our
neiahbors at Point East. the Waterwavs (Point). etc.
My best to all, Burton Young
The following is my 1/21 email to POA President Carlos Videuira:
Carlos:
I am forwarding 1000 Board Member Harvey Shapley's email to you because he
raises a good question about what can be done. How will the POA protect
residents' interests from this monstrosity? How will this affect property
values?
I spoke with Biscayne Cove President Madeline Giardella and they are hiring
land use attorney W. Tucker Gibbs to represent their association to fight
Lincoln Pointe. They are ready to talk to the POA and have been for a long
time. Being that the POA owns NE 31st Court I wonder ifthere is any way to
use that to our advantage. Can we install a drawbridge, toll booth, oil
slick machine or maybe narrow the road by 80%? (grin)
This issue affects more than half of all unit owners on Williams Island and
ALL of the unit owners because of the influx of another 1000 vehicles coming
through our intersection on 183rd Street not counting hundreds more vehicles
on too of that from Pennisnsula II and Minto. What effect will havina
another 1000 vehicles in close proximity to our front gate do to our desire
to close the open lane and change the front gate entrance and traffic flow?
What happens in case of an emergency?
I have copied some other residents on this email in the hope that we may be
able to put our heads together and come up with a solution.
l'age.J 011)
rage '+ 01 "
George
The following is Frank Mengrone's email to Keith Marshall (6000 POA Rep)
Keith Marshall,
Laurie Allen has added the Lincoln Pointe matter (see excerpts below) to the
Agenda of the upcoming POA Town Hall meeting at the 6000 building.
She suggests as many people as possible attend the Town Hall meeting at the
6000 building to show the resident's concerns about the development of
Lincoln Pointe
She will contact Mayor Susan Gottlieb and requests that we all encourage
Billy Joel and Bob Diamond to attend.
The POA board must take a stand on this issue for the Williams Island
Residents.
This cannot be accomplished by a small group of residents trying to raise
money to fight the issue, the POA board must take on this issue as a
representative body and invite the surrounding communities join us, thus
creating a massive block of voters that Aventura will not be able to dismiss
and will also vmdicate Mayor Susan Gottlieb for her vote against the
Lincoln Pointe project.
The POA board must commission a study to look at the accumulative adverse
effects this will have on the safety and welfare of the Williams Island
residents.
One of the consequences of this issue will be that you will never be able to
drive on or off Williams Island, that includes fire, safety and ambulance
vehicles.
The findings of the committee can be used as the cause of action to go into
court.
In addition to the above, as a direct result of the Minto and Lincoln Pointe
development our property values will surely depreciate.
If you cannot get to Williams Island, or when you can, you have to navigate
thru hundreds of trucks and workers, combined with the loss of "Quiet
Enjoyment" of your home, as well as the obvious safety issues, Williams
Island will lose a great deal of its appeal.
Sincerely,
Frank Mengrone
Edited Excerpt from the 1-19-06 Burton Young email
>1 was just advised that the Aventura Commission within the last 24 hours gave a
pass and a release from the Temporary Moratorium for the construction of a
multi-unit project at Lincoln Point. The vote was 5-1 with the Mayor being the
only vote in opposition. Evidently, the Developer threatened to sue or did sue
in order to escape the restraints of the temporary moratorium and the City
thought it best to, in effect, cave.
Edited Excerpt from 1-21-06 Laurie Allen email
>> I have added an Agenda item to this matter. I suggest that you encourage as
many people as possible to attend the Town Hall meeting at 6000 building to show
the resident's concerns about the development of Lincoln Pointe
I will invite Susan, but who should really attend is Bob Diamond and Billy
Joel.
Edited Excerpt from 1-21-06 George Tower email
>>\ spoke with Biscayne Cove President Madeline Giardella and they are hiring
land use attorney W. Tucker Gibbs to represent their association to fight
Lincoln Pointe. They are ready to talk to the POA. Being that the POA owns NE
31 st Court I wonder if there is any way to use that to our advantage.
Page:' ot lS
The following is an email from 1000 POA Rep Laurie Allen to Frank Mengrone
Frank
I have added an Agenda item to this matter. I suggest that you encourage as
many people as possible to attend the Town Hall meeting at 6000 building to
show the resident's concerns about the development of Lincoln Pointe.
I will invite Susan, but who should really attend is Billy Joel. Bob
Diamond. In fact. we should insist they attend. Start an email campaiqn to
that effort, and shame them into it.
Laurie
Dr. Bob Fabric's reply to Frank Mengrone below:
Hi Frank:
i couldn't be any more in agreement. Terrific email!
It is time for our POA to show their cahones (to use a comment
from Laurie Allen). This should be an issue that the entire POA
Board unanimously stands "behind" and if not we need to kick those
in disagreement in their "behind" and get rid of them ASAP as not
representing their own constituency.
I agree ... we should allow those Commissioners that voted for
Lincoln Point to explain themselves or allow them to change their
vote. If this isn't accomplished then one only wonders if there is
a process to remove a Commissioner that votes against his
constituency. Certainly, any Commissioner that votes for and
continues to vote for Lincoln should consider his Aventura political
life over ... even the one that wants to run for Mayor against
S. Gottlieb.
Your comments were all on point and I am in total agreement with
you. I am thankful that we have folks on the Island that are like you
and are as articulate in expressing themselves. Thank you.
Bob
Robert K. Fabric, M.D
From Eddie Barrocas on 1/22
> I will be very willing to show my support on this issue and attend the
> meeting as well as encourage others to do so, thanks for getting me into the
> Information loop.
> Feel free to count on Patty and me for any help that may be needed.
~
> Eddie Barrocas
Finally I think that we should not forget our new neighbors in Bella Mare
who may not have been around last year when I first raised this issue.
Please make it a point to extend yourselves to our new neighbors in 6000 in
the spirit of neighborly brotherhood. I am including an email below from a
new 6000 resident. - George Tower
22 January, 2006
All,
Today's e-mail communiques were my first knowledge of this situation. I
think the best way to make an impact on the Commission would be a petition
(left in each building on Williams Island) signed by as many people as
possible. This could have an effect on the outcome by delivering it to the
Commission, better than merely going to the meeting and speaking and be
side-stepped and ignored.
I. too, would be willing to help in any wav I can.
Harold Richman
Bella Mare
The following two emails have been sent to the two City Commissioners, Bob
Diamond & Billy Joel, who voted against resident's interests in favor of the
Developer's interest. They are Bob Diamond of the 3000 Building and Billy
Joel of the 2600 Building.
The following was sent by Harvey Shapley, a Director of the 1000 Building
Board.
Dear Bob and Bill,
I respectfully request that you advise me as to why you both voted for the
Lincoln Point project to go forward?
.Page t> 01 IS
It is a shame that the City council voted yes (with only the Mayor voting
no) to aporove Lincoln Point. We Islanders were all so happy this summer.
when we went to to the Council meeting and the developer was thwarted. The
entire council voted against the developer except you Billy, when you voted
for further compromise negations, and one other Council member.
We face a nightmare between the construction period of Lincoln and Minto and
then the enormous amount of additional traffic if Lincoln is built.
Please advise your reasoning
I have been told that there will be a another Council meeting on 2/1/06, at
which there will be another vote on Lincoln point.
If this is so please change your vote and stop Lincoln Point.
Sincerely,
Harvey Shapley
cc: 1000 Island Blvd BOD
The following was sent by 2800 resident Andres Weisz to Bob Diamond & Billy
Joel
Dear Sirs:
The purpose of this E-Mail is to clearly state my opposition to your
decision to allow the construction of a high rise at Lincoln Point
as well as your previous decision on the Minto Developers Building.
Your positive vote on these two matters is clearly against the
interests of the present inhabitants of Williams Island but even
worse it is against the interests of all of the residents of Aventura,
who will see their "city of excellence" converted into an ugly and
untenable "Manhattan South".
Just because you are threatened by a lawsuit from the developers
of Lincoln Point, you don't have to run like frightened chickens and
do their bidding.
When we elected you as commissioners, we entrusted you with the
common good and not with the increase of the taxable property
base which means more money in the coffers of the city of Aventura.
I urge you to deny final approval to the developer of Lincoln Point
and act according to your sworn duty of defending the interests of
the city of Aventura and its residents.
Yours Truly.
Andres Weisz
2800 Island Blvd.
Apt. 3002
Page lOllS
Islanders. I think the time has come to hold every Aventura Commissioner
publicly accountable including, Bob Diamond & Billy Joel, for what they have
done. If they have a legitimate reason for abandoning the very residents
(who elected them to protect us) I am sure we would like to hear what they
have to say.
Those of you who have media contacts and expertise may wish to give this
some thought. The time has come to draw the line in the sand with our
Commissioners and to do so openly before the eyes of the public.
George Tower
Williams Island Residents Coalition
1.1f........,lnu l........nn.... ")1: 1{\{\;:;: ^ .............;nn A....l:....""'. In...1...,,,,, on
t'age /) 01 /)
Page 1 of 1
Subj: Fwd: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
Date: 1/23/2006 9: 11: 18 A. M. Eastern Standard Time
From: SODaroc
To: Judge RD
Forwarded Message:
Subj: Re: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
Date: 1/23/2006 9:09:36 A.M. Easlern Standard Time
From: Spbaron
To: kriya108@comcast.nel
Before condemning Bob Diamond and Billy Joel, I feel you should have asked them why they took their
position. I'm happy to hear thaI you are taking that position now, You wili find out that lhey reduced lhe number
of unils, saved liligation money and made the besl deal they could.
Rember it was a 6 to 1 vote.Alilhose commissioners couldn't be wrong.
1.,1..............1"'.., T........~~n_' '")'1 '"loot;: A..............:........ 1\...1;...,... T......I..,.,.,. nn
Subj: fw: left off Bisc Cove letter attached to GT email ... Gurland's a busy beaverl
Date: 1/23/2006 7:42:41 AM. Eastern Standard Time
From: jeruc03@belisouth.ne'
To: JUDGERD@AOL.COM,ARL4271027@AOL.COM
CC: BILLYJOEL13@GMAIL.COM
FYI...
jerry...
--- Original Message ---
From: Phrases1@aol.com
To: RodLWhile@aoLcom ; SnavePJ@aol.com ; JEB2800@aoLcom ; JERUC03@belisouth.nel ;
HARIAN@aol.com ; BReich@williamsislandclub.com
Sent: Monday, January 23, 20066:44 AM
Subject: left off Bisc Cove letter attached to GT email ... Gurland's a busy beaver!
~lfnnil'.:ll" T'.:lInl1!:lru ')1. ,)()flh. A.mPMt'o;:I ()"l,np.o Tntiop 'Rn
Page I ot L
Page 2 01 2
J", 18, 2005
Dr. Sleven Gud...~
President
7000 loIond BculeVald CorldIluOni.... '""",,1aIon
7ODO IsIllld Bllll'-d
AvItlbJra. FL 33100
lJe.~fr. Gurt.l!r.d:
I 8m writing to yar alllle suggerionof Me Georte TCl'MlrlM\llv.4lom I taYll beell di8cus8ingfro _ 3rnethe
possIlIlIly orll8llOllalno III agreement beMen ~ne eo.e ConClOmitlllllll8l1ll WIIIlImS IlI8nd concenm, fte
~"ll$!l'"4> und UI8 or NE 31" Coli! III ij reIaIIs ID 111II propolled dewiIopI1l6n1 or Ihe LiIICClIn PCintll prolll!lty.
Mr. Tower he inlo111ll<l.... lhlIl resldell:S oI';jI[J uuiIIing.....d be ud1llr.iol7l11f1:1."ko'J b,:;u:IJ dowoIJprr..nt
My Board Ita) rl1ad:1aeverll ~ CMlrtlle "'MID oPen a dllo!lllll",ith t1le \\I.li8I'IIs 1s/1IllI PrOPeI1Y 0WneI"~
A&soei..... qgardi1g '*OPpot1unily. """'"".,.ablI.10 j'8ln .. SlmJoI Brody_Board TIllIlEUIllf, wrllID
1D lOlI'l'ro/llll\Y OM\e(s ASsa:iab. TIIIO (2) ,en IlIJO, ChanIs SpllmlCk IloIrd ~ IMIe vetblll
roquoslslD}'OIJI' PnIpeIlrOwnllr'sAsSllCllllon. BoIr ~urent\lf[al1$W!lllld.
For \'M'S Blscayne <:ewe CondlrDniUOl hi15 delIIIIId .. mainlBin8d 31" Cout. We doily ci8lln the IOlIdtuR
dobris; paItlIIly mantalnthe ~ lIIIlI we ptGYide Ihe IlghIIns on bfllllld . urel
On .......ortho Bollld 01 ~ d IliIc;ejne Cove CoIlClOmldum I WOUld lib ID ilMlll JOII or lIlY oIlIr ljllIIi1ie\I
IlIllIdeIi rep____ __I$ialld III meet wiIh me 1D discuss "'lII'S....lII8 me, Iam>. stralegic
alliance to ~ our DrJIJJIIIy benlficlal gaal '" JII....g.. ~ dballlliricoyr.. Co.e Cunl!OlrlOvmane
Williams Island 1i1lon the ~ dowIopll8lll DIlle LIncoln PailllI pRlpe/tf. T1Ill dmiIopm&n: 'IlWd_~
aIJO"uct 11lIIde'lls' v/eor.ifrum jW"..rand and OU' bulking 1IId. more l_rlanIly, neglIIIwIy hlpacl OU' IlfqJl!f\I
,,_..
I am aIGo ilIIing to llOIl'.e end meet. JllU aod.. oller builclng I're$ijenI.s 011 Wllams Island b discuss INs
furtll8l'. As neiglrbori1lg 00IIIIllri1lilnls roe only stand to benefilfrtm estalllslling III cpen IDe d cal1I'I1lIIicaI~
will one anolher.
IlIl8y be reach!ld ..1he olIice (J05) \l35-Wl5 or al my mn (3OS) 17$.3G43-
Sl1C81l!1'(.
./:z~A.L~~</Q
Mild... Gla'dIelc
B"scayne eo.., CrlodllUinium IloIWd I"resldent
18151 N.C. :n C'1l.1. Sui.M 10J ....\..'P.'I"l'Jra, Flortda :j:JiNI . :J05-9..i5-1tl(:.o~. f:.x 9~3.)833
M()nrl~v I~ml~rv?"l ?OO/\ Am"ri,,~ Onlin,,' Inrl"" RD
Subj: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
Date: 1/23/2006 3:21 :56 AM. Eastern Standard Time
From: kriya108@comcast.ne-
To: kriya108@comcastnet
Greetings Islanders:
Firsl, my apologies in nol being able 10 include ali your emails (10 avoid
redundancy) in lhis matter. I have been bombarded wilh more emails aboul
this issue about Bob Diamond - Biliy Joel - Lincoln Point lhan I even
received about Minlo lasl year and with good reason since I have been
informed lhat Lincoln Point Tower should sland much bigger lhan any olher
building on WI and in lhe vicinity.
I HAVE ALREADY SENT A PUBLIC INVITATION TO COMMISSIONER BOB DIAMOND OF THE
3000 BUILDING AND COMMISSIONER BILLY JOEL OF THE 2600 BUILDING TO SHOW UP AT
OUR NEXT TOWN HALL MEETING ON WI TO ANSWER RESIDENTS' QUESTIONS AS TO WHY
THEY VOTED AGAINST THEIR NEIGHBORS, WHO ELECTED THEM INTO OFFICE, IN FAVOR
OF THE DEVELOPERS INTERESTS WHO DO NOT LIVE HERE.
Bob Diamond's email addressis:judgeRD@aol.com
Biliy Joel's email addressis:bjoel@galenetwork.com
I think lhe POA should distribute a letter to each unit owner aboul Lincoln
Point Tower so we are ali informed and on the same page. This way everyone
wili know aboul il since most of lhe people on Williams Island do nol know
aboul it. We need better communication.
One can only wonder how Minlo is going to advertise their apartmenls for
sale since I suspect lhat half of ali the unils in Minto may lose their
unobstrucled water views and Iighl from the sun. We must walch carefully 10
see what disclosures lhey make to prospective buyers. Could lhis be why
Minlo has not broken ground yet or announced any pricing for the apartments?
Who knows.
I have attached the July 18, 2005 letter from Biscayne Cove Presidenl
Madeline Giardelia. Mr. Gurland discussed lhe matter at lhe Board meeling
over the summer and handed her letter to Jonathan Evans at lhat meeting and
requesled Jonathan Evans 10 foliow up with her. Jonathan Evans did nol
respond 10 her. We need 10 build bridges 10 our neighbors and work together
with them for lhe benefil of all. This is a perfecl example.
Below is a 1/22 email from Med Viliage resident Burton Young, Esq. involving
Bob Diamond & Billy Joel.
ToAIi:
Finaliy, it seems as if lhere is some resemblance of a realization lhat
the "Ox" that is being "gored" belongs to everyone living in Avenlura,
especialiy in the Williams Island area (sans the Developer(s). Perhaps now
then "everyone" will mobilize into a massive voting force that will send a
clear message 10 the Avenlura Commission lhal actions such as lheir the vole
10 exclude the Lincoln Poinl projecl from the Temporary Moratorium was the
"last straw" and is jusl not acceplable. The Mayor is 10 be commended for
her dissenting vote.
The very same Commission enacted a weakened Temporary Moratorium (over
our slrong objection the Commission excluded certain building projects on
lhe grounds lhat lhe Developer's rights were "vesled"). Our Commission
lhen and slili do refuse 10 recognize that the residents of this Community
Page 1 of6
rag'" J:.. Vi U
also have "vested" rights to live in an environment that ensures our
health, welfare and safety which vested rights seem 10 equal, if not
supersede, a Developers' vested rights.
Now our elected Commissioner's (except the Mayor) weaken the
Temporary Moratorium even more by granting another pass 10 another Developer
(Lincoln Poinl) because they were sued by the Developer. Simply, lhe City
"caved". Candidly, to me that action is a publiC insult as it is offensive
10 one credulity. The reason they assign is that since the Developer sued
the City may lose and lhen lhe Developer would be entitled 10 build a larger
project. Certainly, lhere are risks in any litigation. Bul how much of a
risk in this litigation? And is it a risk that should be taken?
I have confidence in our Court's and in the Rule of Law. Laws are
enacted to protect lhe rights of the public. It is the Public Policy of
lhis State and mosl other Slales 10 prolect and preserve the Publics health,
welfare and safety.
One must ask whelher the Commissions had a legal opinion from their
City Attorney whelher the Temporary Moralorium, as weak as il is, would
wilhstand a legal attack. They should have. If they did not, lhen someone
missed lhe boat. (I personaliy urged lhat they seek an Attorney General's
opinion...and they refused. Lesl we forgel, lhey did seek anolher Opinion
from Special Counsel. It is logical to assume that they would nol have
adopted the Temporary Moralorium if their lawyers counseled was infirm.) So
what caused a change thaI would juslify lhem caving 10 this Developer?? Or
was it just another act of poor legislative judgment?
In sum, hopefuliy the people of this Community will protesllhe
Commission's unloward action(s) in a massive Town Hali type meeling and
lhereafter converge in mass al the Commission Meeling. If lhe Commission's
majority fail once again 10 heed lhe expressed will of their Conslituents,
ali available legal options should be considered for proper redress.
Again, the issue is lhe "OX" of ALL of lhe residenl volers of the
entire City. Any mass meeting andlor coordinaled effort should include our
neighbors al Point East, the Waterways (Poinl). elc.
My best 10 ali, Burton Young
-.----.---------..---.----.---------
The foliowing is my 1/21 emaillo POA President Carlos Videuira:
Carlos:
I am forwarding 1000 Board Member Harvey Shapley's email to you because he
raises a good question aboul what can be done. How wililhe POA protect
residents' interests from lhis monstrosity? How wili this affecl property
values?
I spoke with Biscayne Cove President Madeline Giardelia and they are hiring
land use attorney W. Tucker Gibbs to represent their association to fighl
Lincoln Pointe. They are ready to talk to the POA and have been for a long
lime. Being thallhe POA owns NE 3151 Court I wonder if lhere is any way 10
use lhat to our advantage. Can we instali a drawbridge, toli booth, oil
slick machine or maybe narrow lhe road by 80%? (grin)
This issue affecls more than half of ali unit owners on Wiliiams Island and
ALL of the unil owners because of the influx of anolher 1000 vehicles coming
through our intersection on 183rd Streel not counling hundreds more vehicles
rage j 01 0
on top of that from Pennisnsula II and Minlo. What effecl will having
another 1000 vehicles in close proximity 10 our front gale do 10 our desire
to close the open lane and change the front gate entrance and traffic flow?
Whal happens in case of an emergency?
I have copied some other residenls on lhis email in the hope that we may be
able 10 pul our heads together and come up with a solution.
George
The foliowing is Frank Mengrone's email to Keith Marshali (6000 POA Rep)
Keilh Marshali,
Laurie Alien has added the Lincoln Pointe matter (see excerpts below) to the
Agenda of lhe upcoming POA Town Hali meeting at lhe 6000 building.
She suggests as many people as possible attend lhe Town Hali meeling al the
6000 building to show the resident's concerns about the development of
Lincoln Poinle.
She wili contacl Mayor Susan Gottlieb and requesls that we ali encourage
Billy Joel and Bob Diamond to attend.
The POA board rnusllake a sland on this issue for lhe Williams Island
Residents.
This cannol be accomplished by a sma Ii group of residents lrying 10 raise
money 10 fight lhe issue, the POA board must take on this issue as a
representalive body and invite the surrounding communities join us, lhus
creating a massive block of volers that Aventura will not be able to dismiss
and will also vindicate Mayor Susan Gottlieb for her vole againsl the
Lincoln Pointe project.
The POA board musl commission a sludy 10 look allhe accumulative adverse
effects this will have on the safety and welfare of the Williams Island
residents.
One of lhe consequences of this issue wili be thaI you will never be able to
drive on or off Wiliiams Island, lhat includes fire, safety and ambulance
vehicles.
The findings of the committee can be used as the cause of action 10 go into
court.
In addition to the above, as a direct resull of the Minlo and Lincoln Pointe
development our property values will surely depreciate.
If you cannot gel to Williams Island, or when you can, you have 10 navigale
thru hundreds of trucks and workers, combined wilh the loss of "Quiel
Enjoyment" of your home, as weli as the obvious safety issues, Williams
Island will lose a great deal of its appeal.
Sincerely,
Frank Mengrone
Edited Excerpl from lhe 1-19-06 Burton Young email
>1 was just advised lhat lhe Aventura Commission wilhin lhe lasl24 hours gave a
pass and a release from the Temporary Moralorium for the construction of a
multi-unit projecl al Lincoln Point. The vote was 5-1 with the Mayor being the
only vote in opposition. Evidently, the Developer threalened to sue or did sue
in order to escape the restraints of lhe temporary moratorium and the City
lhought it best to, in effecl, cave.
Edited Excerpt from 1-21-06 Laurie Alien smail
>> I have added an Agenda item to lhis matter. I suggest that you encourage as
many people as possible 10 attend lhe Town Hali meeting al6000 building 10 show
the resident's concerns aboul the development of Lincoln Poinle.
I will invite Susan, bul who should realiy attend is Bob Diamond and Billy
Page 4 ot6
Joel.
Edited Excerpt from 1-21-06 George Tower email
>>1 spoke with Biscayne Cove President Madeline Giardella and they are hiring
land use attorney W. Tucker Gibbs to represent their association to fig hI
Lincoln Poinle. They are ready to talk to the POA. Being lhat lhe POA owns NE
31 st Court I wonder if lhere is any way to use that to our advantage.
The following is an email from 1000 POA Rep Laurie Allen 10 Frank Mengrone:
Frank
I have added an Agenda item to this matter. I suggesllhat you encourage as
many people as possible to attend the Town Hali meeting at 6000 building to
show the residenl's concerns about the development of Lincoln Poinle.
I wili invite Susan, but who should realiy attend is Billy Joel, Bob
Diamond. In fact, we should insisl they attend. Start an email campaign to
that effort, and shame them into it.
Laurie
Dr. Bob Fabric's reply to Frank Mengrone below:
Hi Frank:
I couldn't be any more in agreement. Terrific email!
It is time for our POA 10 show their cahones (10 use a commenl
from Laurie Alien). This should be an issue that lhe entire POA
Board unanimously stands "behind" and if nol we need 10 kick lhose
in disagreement in their "behind" and get rid of them ASAP as not
representing lheir own consliluency.
I agree ... we should aliow lhose Commissioners lhat voled for
Lincoln Point 10 explain lhemselves or aliow them to change lheir
vole. If this isn't accomplished lhen one only wonders if lhere is
a process 10 remove a Commissioner thaI votes againsl his
constituency. Certainly, any Commissioner lhat votes for and
conlinues 10 vote for Lincoln should consider his Avenlura political
life over ... even the one that wants to run for Mayor againsl
S. Gottlieb.
Your comments were ali on poinl and I am in total agreement with
you. I am thankful that we have folks on the Island thaI are like you
and are as articulate in expressing themselves. Thank you.
Bob
Robert K. Fabric, M.D.
From Eddie Barrocas on 1/22
> I wili be very willing to show my support on lhis issue and attend lhe
> meeling as weli as encourage others to do so, thanks for getting me inlo lhe
> information loop.
> Feel free to count on Patty and me for any help lhat may be needed.
>
> Eddie Barrocas
Page 5 of6
Finaliy I think that we should not forgel our new neighbors in Belia Mare
who may nol have been around last year when I firsl raised lhis issue.
Please make it a point to extend yourselves to our new neighbors in 6000 in
the spirit of neighborly brotherhood. I am including an email below from a
new 6000 resident. - George Tower
22 January, 2006
AIi,
Today's e-mail communiques were my first knowledge of lhis siluation. I
lhink the best way 10 make an impacl on lhe Commission would be a petilion
(left in each building on Williams Island) signed by as many people as
possible. This could have an effect on the outcome by delivering it 10 lhe
Commission, better than merely going to the meeting and speaking and be
side-stepped and ignored.
I, 100, would be willing 10 help in any way I can.
Harold Richman
Belia Mare
The foliowing two emails have been senllo lhe two City Commissioners, Bob
Diamond & Biliy Joel, who voted against residenl's inleresls in favor of lhe
Developer's interest. They are Bob Diamond of the 3000 Building and Biliy
Joel of lhe 2600 Building.
The foliowing was senl by Harvey Shapley, a Direclor of the 1000 Building
Board.
Dear Bob and Bili,
I respectfuliy request thaI you advise me as 10 why you bolh voled for the
Lincoln Point project to go forward?
It is a shame lhal the City council voted yes (with only lhe Mayor voling
no) to approve Lincoln Point. We Islanders were ali so happy this summer,
when we wenllo 10 lhe Council meeling and the developer was lhwarted. The
entire council voted againsl the developer excepl you Billy, when you voled
for further compromise negations, and one other Council member.
We face a nighlmare between the construction period of Lincoln and Minlo and
then lhe enormous amount of addilional traffic if Lincoln is built.
Please advise your reasoning.
I have been lold thaI there wili be a anolher Council meeting on 2/1/06, al
which there wili be another vote on Lincoln point.
If this is so please change your vole and stop Lincoln Point.
Sincerely,
Harvey Shapley
cc: 1000 Island Blvd BOD
The fOllowing was sent by 2800 residenl Andres Weisz to Bob Diamond & Billy
Joel
Dear Sirs:
- -"<':;>
The purpose of this E-Mail is to clearly state my opposition to your
decision 10 aliow the construction of a high rise at Lincoln Point
as weli as your previous decision on the Minto Developers Building.
Your positive vote on these two matters is clearly against the
interests of the present inhabitants of Williams Island but even
worse il is againsllhe inleresls of ali of the residenls of Avenlura,
who wili see their "city of excelience" converted into an ugly and
untenable "Manhattan Soulh".
Just because you are lhreatened by a lawsuil from the developers
of Lincoln Point, you don'l have to run like frighlened chickens and
do their bidding.
When we elected you as commissioners, we entrusted you with the
common good and not with the increase of the taxable property
base which means more money in the coffers of the city of Aventura.
I urge you 10 deny final approval 10 lhe developer of Lincoln Poinl
and acl according to your sworn duty of defending the inlerests of
the city of Aventura and ils residents.
Yours Truly,
Andres Weisz
2800 Island Blvd.
Apt. 3002
Islanders. Ilhink the time has come 10 hold every Avenlura Commissioner
publicly accountable including, Bob Diamond & Biliy Joel, for what lhey have
done. If lhey have a legitimale reason for abandoning lhe very residents
(who elected them to protect us) I am sure we would like to hear what they
have to say.
Those of you who have media contacls and expertise may wish to give lhis
some thought. The time has come to draw lhe line in the sand wilh our
Commissioners and 10 do so openly before the eyes of lhe public.
George Tower
Williams Island Residenls Coalilion
~;f{\nr1~v hmll!:llnT ')1 ')00" AnlP'r1C'!:lI ()nlinp' Tllr10P Rn
i ....0- .. ...... -
Subj: Lincoln Point
Date: 1/22/2006 1 :00:30 P.M. Eastern Standard Time
From: HShapley
To: JJ.lgg~BO, bjQE!l@galene!Worl<.CQ[Il
CC: CQngorninium1@bellsouthnet, c!ily[geQenw@gmail.com, hhkag@hQtmaiLcom,
"_alien@belisouth.nel, michael.homslein@att.nel, scottkranz@slralegica.nel,
tim@tcdinveslments.com
Dear Bob and Bill,
I respectfully request that you advise me as to why you both voted for the Lincoln Point
project to go forward?
It is a shame that the City council voted yes (with only the Mayor voting no) to approve
Lincoln Point. We Islanders were all so happy this summer, when we went to to the
Council meeting and the developer was thwarted. The entire council voted against the
developer except you Billy, when you voted for further compromise negations, and one
other Council member.
We face a nightmare between the construction period of Lincoln and Minto and then the
enormous amount of additional traffic if Lincoln is built.
Please advise your reasoning.
I have been told that there will be a another Council meeting on 2/1/06, at which there will
be another vote on Lincoln point.
Ifthis is so please change your vote and stop Lincoln Point.
Sincerely,
Harvey Shapley
cc: 1000 Island Blvd BOD
"\If........~"'.., T......H"'_' "'1'1 "'loot: A..............-:.....'" r\...1;......... T,,~.......... on
lU-5.......L '-"-"-_
Subj: Fwd: Lincoln Pointe matter
Date: 1/22/2006 10:29:02 A.M. Eastern Standard Time
From: LenoreT18
To: Judge RD
BOB,
THOUGHT YOU WOULD WANT TO SEE THIS
lHLenore
Forwarded Message:
Subj: Lincoln Pointe matter
Date: 1/22/200610:02:15 A.M. Eastem Standard Time
From: Fpm1
To: Marshali1231
CC: ClaireL77, RMSwarte, BemieS96, DOCFAB2000, BYoung@ybkglaw.com, DBSUTTIN98,
dif1900@yahoo.com, Houtkin@yahoo,g>rn, HSbaQl~y, Marf~l'llbie, P!;Qujre:22@rnsn.com, SnavePJ,
ILalien@belisoulh.nel, mirskym@belisoulh.nel, Detlrn10:2i', QICKRQsSg, roser3@yahoo.com,
mnrgorr@yahoo.com, LenoreT18, DAA1318, kriya108@comcast.nel, BETH-ROB@webtv.net,
LSG1000, larry@bardintl.com, Leneepapa, S5rf, cvidueira@huizenga.com,
GregBankhursl@Wcicommunities.com, EBarrocas, hank@aqua.nel, replicaitaly@earthlink.nel,
sammy@wheremindscreate.com
Keith Marshali,
Laurie Allen has added lhe Lincoln Pointe matter (see excerpts below) to lhe Agenda of the upcoming POA
Town Hali meeting al the 6000 building.
She suggests as many people as possible attend the Town Hali meeling allhe 6000 building to show the
resident's concerns about the development of Lincoln Poinle.
She wili conlact Mayor Susan Gottlieb and requests lhat we ali encourage Biliy Joel and Bob Diamond 10
attend.
The POA board must take a stand on this issue for the Williams Island Residents.
This cannol be accomplished by a small group of residents lrying 10 raise money 10 fight lhe issue, lhe POA
board must take on lhis issue as a represenlalive body and invite the surrounding communilies join us, thus
creating a massive block of voters lhat Aventura will not be able to dismiss and will also vindicate Mayor Susan
Gottlieb for her vole against the Lincoln Poinle project.
The POA board must commission a study to look al the accumulative adverse effects this wili have on lhe
safety and welfare of the Williams Island residents.
One of lhe consequences of lhis issue will be lhat you will never be able to drive on or off Williams Island,
that includes fire, safety and ambulance vehicles.
The findings of lhe committee can be used as lhe cause of aclion 10 go into court.
In addition 10 lhe above, as a direct result of the Minto and Lincoln Pointe development our property values will
surely depreciale.
If you cannot gel to Williams Island, or when you can, you have 10 navigale lhru hundreds of trucks and
workers, combined with lhe loss of "Quiel Enjoymenf' of your home, as weli as the obvious safety issues,
Williams Island wililose a great deal of its appeal.
Sincerely,
Frank Mengrone
Edited Excerpt from the 1-19-06 Burton Young email
J.A,.,..........1...'U T............_T'1'1 '1f\f\t: A......."'...;"'... 11.....1;....."'.1......1......'" Dn
.l.Uo................ -
>1 was just advised that the Aventura Commission within the last 24 hours gave a pass and a release from the
Temporary Moralorium for the construclion of a multi-unit project at Lincoln Point. The vote was 5-1 with the
Mayor being the only vote in opposition. Evidently, the Developer lhrealened to sue or did sue in order 10
escape the restraints of lhe lemporary moralorium and the City thoughl il besllo, in effect, cave.
Edited Excerpt from 1-21-G6 Laurie Allen email
>> I have added an Agenda item to this matter. I suggest that you encourage as many people as possible 10
attend lhe Town Hali meeting at 6000 building to show lhe resident's concerns about the development of
Lincoln Pointe.
I wili invile Susan, bul who should realiy attend is Bob Diamond and Billy Joel.
Edited Excerpt from 1-21-46 George Tower emall
>>1 spoke with Biscayne Cove President Madeline Giardelia and lhey are hiring land use attomey W. Tucker
Gibbs to represenl their association 10 fight Lincoln Poinle. They are ready to talk to lhe POA. Being thaI the
POA owns NE 31st Court I wonder if there is any way 10 use lhallo our advanlage.
> This message is inlended only for lhe use of the addressee and may conlain
> Informalion thaI is PRIVILEGED and CONFIDENTIAL.
> If you are not lhe inlended recipient, you are hereby notified thaI any
> Disseminalion of this communication is strictly prohibiled.
> If you have received this communication in error, please
> Erase ali copies of the message and its attachments and nolify us
> Immediately. Thank you.
~A................t..", T..............., '1'1 '100;:;;: ^ .........""~...... r\.....I;....."". T......t........ Dn
Monday, January 30, 2006 America Online: Judge RD
Re: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
Page I of2
Subj: Fwd: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
Date: 1/23/2006 2:33:22 P.M. Eastern Standard Time
From: Spoaror
To: Judge RD
Forwarded Message:
Subj: Re: BOB DIAMOND-BILLY JOEL-LINCOLN POINT TOWER
Date: 1/23/2006 2:25:21 P.M. Easlern Standard Time
From: kriya108@comcaSl.nel
To: Spbaron@aoLcom
Sent from the Internet (Delails)
On 1/23/069:09 AM, "Spbaron@aol.com" <Spbaron@aol.com> wrote:
Before condemning Bob Diamond and Billy Joel, I feel you should have
asked them why they took their position. I'm happy to hear that you are
taking that position now, You will find out that they reduced the number
of units, saved litigation money and made the best deal they could.
Rember it was a 6 to 1 vote.AII those commissioners couldn't be wrong.
Stan. Why don't you stand up and explain that to all your neighbors at
the Town Hall meeting? Make sure to wear a raincoat when you do ;-)
The explanation that you offer is unacceptable and I am sure that your
neighbors will be the first ones to let you know that.
Sounds like typical political patter. If the Commissioners expect the
public to buy that then they are deluding themselves.
The only thing that I believe is that they made the best deal that they
could. The only question is the best deal for "who"?
In time Bob and Billy may regard this as their Waterloo.
Ultimately the press will decide this issue as it goes way deeper than
just Lincoln Point.
Monday, January 30, 2006 America Online: Judge RD
Page I of I
Subj: Fwd: WED. NIGHT AVENTURA COMMISSION MEETING WITH BOB DIAMOND AND BILLY
JOEL
Date: 1/29/200612:08:50 AM. Eastem Standard Time
From: Cupecoyx
To: Judge RD
Forwarded Message:
Subj: WED. NIGHT AVENTURA COMMISSION MEETING WITH BOB DIAMOND AND BILLY JOEL
Date: 1/28/20067:22:50 P.M. Eastern Standard Time
From: knya108@comcast.nel
To: Sydney@TheSydneySlylecom
Sent from the Internet (Details)
RE: WED. NIGHT AVENTURA COMMISSION MEETING WITH BOB DIAMOND AND BILLY JOEL
Greetings Islanders:
I have been receiving inquiries from some of you aboul when lhe Aventura
City Commission meeting will be held that will decide the fate of the
Lincoln Point Project.
I have attached the meeting notice. According to it the development is for
460 units with a maximum heighl of 315 feel.
II will be held at Aventura City Hali on Wednesday February 1 st at 6PM. It
will be a short meeting as Lincoln Point is the only item on the agenda.
You may check with your fronl desk about possible WI shuttle service 10 City
Hali.
Please attend this meeting and share your thoughts directly with Billy-Bob
and the other Commissioners who want 10 vole in favor of granting a waiver
from the Moratorium 10 the developer of Lincoln Point Tower.
There is a Williams Island Town Hali meeting on lhe same nighl beginning al
7PM in the 1000 building. Those of you who wish to attend that meeting
after the one at City Hali should be able to do so.
George Tower
Williams Island Residents Coalition
Monday, January 30, 2006 America Online: Judge RD
Teresa Soroka
From:
Sent:
To:
Subject:
Susan Gottlieb [skgmiami@comcast.net]
Wednesday, February 01, 2006 3:04 PM
Teresa Soroka
Fw: Fwd: COMMISSION MEETING TONIGHT-BE THERE]
Attachments:
Fwd: COMMISSION MEETING TONIGHT-BE THERE; forward.dal
~
~
Fwd: COMMISSION forward.dat (64 B)
~ErnNG TONIGH..
----- Original Message -----
From: <11 allen@bellsouth.net>
To: <skgmIarni@corncast.net>
Sent: Wednesday, February 01, 2006 1:41 PM
Subject: [Fwd: Fwd: COMMISSION MEETING TONIGHT-BE THERE]
>
>>
>> From: Joelhillman@aol.com
>> Date: 2006/02/01 Wed AM 08:34:43 EST
>> To: RodLWhite@aol.com, JEB280Q@aol.com, Plwines@aol.coffi,
>> Marfurshie@aol.com,
>> REDJOYCEBLUE@aol.com, mirskym@bellsouth.net,
>> JLGarcia@dadeschools.net,
>> CVidueira@Huizenga.com, 11 allen@bellsouth.net,
>> jtabacinic@bellsouth.net, houtkin@yahoo.com,
>> alvin.epstein@ubs.com,
>> Abe3000@aol.com, alan_frent@yahoo.com, JudgeRD@aol.com,
>> jeruco3@bellsouth.net, DOCFAB2000@aol.com, RowenaReich@aol.com,
>> jlevim@yahoo.com, larry@bardintl.com, Spbaron@aol.com,
>> ARGLD@aol.com,
>> IrvBoren@aol.com, dcale@rogers.com, gavetica@bellsouth.net,
>> SHANONTIMO@aol.com, vmanica@tafts-nemo.org, CIFeingold@aol.com,
>> Ltjmiami@aol.com, szjaffe@yahoo.com, Stanfordk@aol.com,
>> MarianLevi@aol.com, ALUBY126@aol.com, Barb4273@aol.com,
>> by77@comcast.net, stanmit2@msn.com, milaricardo@uol.com.br,
>> arnpr@ec-red.com, Reneeloui@aol.com, leslik@bellsouth.net,
>> vanessalm@hotmail.com, consultjern@bellsouth.net,
>> glshear@allstream.net,
>> ASher41569@aol.com, Silverpenni@aol.com,
>> joannesol@bellsouth.net,
>> hsternberg@herbko.com, pappy87@bellsouth.net, DRHUGH@aol.com,
>> werner_r@bellsouth.net, HPodolsky@aol.com, Jakepaulen@aol.com,
>> RMSwarte@aol.com, MMeisterM@aol.com, msilverl@gate.net,
>> LenoreT18@aol.com, RSACKS545@aol.com, SGRACHLIN@aol.com,
>> RTas863551@aol.com, paubie.arnenkes@menkes.com,
>> Myriarn55@aol.com,
>> KHHI00741@aol.com, jross@gbacllc.com, imsal@webtv.net,
>> HalZelrnanl@aol.com, Garnmyg5@aol.com, Tencaratz@aol.com,
>> Tuliorabinovich@aol.com, WenFab@aol.com, Ar14271027@aol.com,
>> Bubbe4838@aol.com, Ezg123@aol.com, DANYELIA@aol.com,
>> ARYELIA@aol.com,
>> nskatty@aol.com
>> CC: EdwardDDavis@aol.com
>> Subject: Fwd: COMMISSION MEETING TONIGHT-BE THERE
>>
>> Please see George Towers email and sketch, as well as my response
>> directly
1
>> to Bob Diamond and Billy Joel.
>>
>> All of you are effected by this monstrous project, proposed to be built
>> in
>> our face. I suggest that each and everyone of you direct an email to
>> both Bob
>> and Billy Joel expressing your feelings on the subject.
>>
>> Their ernail addresses are:
>>
>> Bob Diamond. ...judgerd@aol.com (mailto:Diamond. ...judgerd@aol.com)
>> Billy Joel.. ... .... .BJOEL@galenetwork.com
>> (mailto:Joel.. ....... .BJOEL@galenetwork.com) -
>>
>> I give them both the benefit of the doubt, and suggest that they were not
>> properly informed as to the complete insanity of a project of this scope.
>>
>> This is for your own best interests, so write!
>>
>> jrhillman
>>
>>
>
2
Page 1 of 1
Teresa Soroka
From: Joelhiliman@aol.com
Sent: Wednesday, February 01, 2006 7:37 AM
To: JudgeRD@aol.com; BJOEL@galenetwork.com
Cc: CVidueira@Huizenga.com
Subject: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Attachments: COMMISSION MEETING TONIGHT-BE THERE
IF the attached sile plan, showing lhe immense building purported 10 be lhe proposed Lincoln Pain I building is
anywhere near accurale, I cannol undersland how you could have supported lhis project. I cannol, by any
slrelch of lhe imaginalion, believe lhallhe mosl vile, and corruplible Cily Board couid condone lhe conslruclion
of a monsler like lhal anywhere, leI alone in lhe face of lhe communily lhal pul you bolh in office.
If you persisl in approving the aClion, I for one sureiy hope lhallhe POA wili make every effort to fighl this ung-
dly decision, regardless of lhe cosllo our communily.
I ask you, as sensible people, and residenls of Wiiliams Island, 10 vole down lhe aclion allonighls meeling. The
projecl is a pure lravesly.
Joel
2/1/2006
Teresa Soroka
From:
Sent:
To:
Subject:
George Tower [kriya108@comcast.net]
Wednesday, February 01, 2006 3;24 AM
Sydney
COMMISSION MEETING TONIGHT-BE THERE
Attachments:
Island.pdf
~
Island.pdf (249 KB)
Greetings Islanders:
Those of you who were at the Lincoln Point Town Hall meeting in the 1000 Bldg. last night
may have been surprised to hear just how large the proposed Lincoln Point project may be.
An attorney and architect from the Lincoln Point Developer made a presentation to
residents at the request of POA President Carlos Vidueira.
We were told that the new IIsmaller version" of the building will stand up to 315 feet
high and up to 900 feet long. To put this into perspective, a building of that size would
stand as high as the 6000 building (Bella Mare) and would be longer than the Titanic.
(This is not a joke)
I have attached a photo. The yellow line shows the approximate footprint of the building
(not drawn to scale) .
POA Representative Harvey Houtkin surmised that if the property on Williams Island is
worth approximately 1.5 billion dollars then even a 10% loss of property value due to the
loss of views from apartments is equal to 150 million dollars in damages that we may
suffer as a result.
Our POA Board unanimously voted to hire an attorney to represent us at the City Commission
meeting. Our POA should be commended for taking quick action especially President Carlos
Vidueira.
Biscayne Cove Condominium has already hired Land Use attorney Tucker Gibbs to represent
them.
Unfortunately Billy-Bob did not show up despite the invitations to the meeting extended to
them by POA President Carlos Vidueira nor did they send a message to their neighbors
attending the meeting nor did they answer the emails that Islanders, including yours
truly, sent to them.
It is imperative that you attend the City of Aventura Commission meeting tonight (Wed.) at
6 PM at Aventura City Hall. Island shuttle buses will begin running to City Hall at 5 PM
and will bring residents back home.
The City Commission is scheduled to vote tonight on a deal that the City made with the
Lincoln Point developer without including us as a party to the deal. Billy-Bob and the
other Commissioners intend on granting an exemption from the building moratorium to the
the developer of Lincoln Point. That deal includes a stunning provision for the City of
Aventura to make reasonable efforts to convert NE 31st Court into a public road. {this
road currently owned by our POA stretches from 1B3rd St. past Biscayne Cove into Lincoln
Point} Part of that road can be seen in the attached photo marked in red. The process may
require the City to seize our road from us (against our will) through eminent domain which
would benefit the developer of the Lincoln Point property. As you know NE 31st Court,
which we paid for and was included in the $17,000,000 Clubs purchase deal, is considered a
very valuable and highly coveted road since it is the only road going into Lincoln Point.
What could possibly motivate Billy-Bob to act against the best interests of Islanders that
they were elected to represent and protect since they live here too? As you recall Billy
lives in the 2600 building and Bob lives in the 3000 building.
1
3 QUESTIONS:
1. Why do Billy Joel and Bob Diamond intend to vote in favor of such a lopsided deal that
might force us to have our valuable property taken away from us by the City of Aventura?
2. Why did Bob Diamond and Billy Joel fail to include Williams Island as a party to this
agreement since we are directly impacted and involved in it since we own the road in
question?
3. Why did Billy-Bob fail to inform their constituents here on the Island about this
unfair deal that they were supporting behind our backs? Had it not been for Med Village
resident, Burton Young, Esq. sounding the alarm bell and POA President Carlos Vidueirals
swift actions to inform residents and aggressively protect our interests would you have
known about this situation?
It is incumbent upon our Commissioners to answer these reasonable questions especially
since they refused to attend last night's meeting with their neighbors in a friendly and
informal setting.
That is why your attendance is SO IMPORTANT.
George Tower
williams Island Residents Coalition
2
- \-
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~ \ ,..:,'
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Page 1 of 1
Subj: CITY COMMISSIONERS EMAILS Re:60 Day Continuance -
Date: 2/1/200611:28:19 AM. Eastern Standard Time
From: BETH-ROB@webtv.net
To: Fpm1@aol.com
CC: MarshaIi1231@aOl.com, Ii_alien@belisouth.net, ClaireL77@aol.com, RMSwarte@aOl.com,
BernieSg6@aOl.com, DOCFAB2000@aOl.com, DBSUTTIN98@aoLcom, dif1900@yahoo.com,
Houlkin@yahoo.com, HShapley@aol.com, Marfurshie@aol.com, psquire22@msn.com,
mirskym@belisouth.net, Debm1027@aol.com, DICKROSS5@aol.com, roser3@yahoo.com,
mnrgorr@yahoo.com, LenoreT18@aol.com, DAA 1318@aoLcom, LSG1000@aOl.com,
larry@bardinll.com, Leneepapa@aOl.com, S5rf@aOl.com, cvidueira@huizenga.com,
GregBankhursl@wcicommunilies.com, EBarrocas@aol.com, hank@aqua.net,
replicailaly@earthlink.nel, sammy@wheremindscreale.com, wfelder@belisoulh.nel,
Sheslein@belisoulh.nel, epst67@belisoulh.nel, WlDC306@belisoulh.nel,
EdwardDDavis@aol.com, Jomarahn@belisoulh.nel, harveyspear@yahoocom,
hman305@comcast.nel, JSKLLONE@aol.com, SmileK@aol.com, AJUB26@yahoo.com,
TheSydneyStyle@aol.com, Caplinscov@aol.com, Jeruc03@Belisoulh.nel,
MarleneSlernberg@Yahoo.com, BarbaraBt2000@aol.com, Laurie. Wynn@UBS.com,
Fattamama@aol.com, Miamibil@aoLcom, HAKALI@aoLcom, PSS502@aOl.com,
Molady@belisouth.net, MarieHinderliter@aol.com, Michael. Hornstein@att.nel,
DANYELlA@aol.com, HMisrahi@Yahoo.com, CMVdesigns@Yahoo.com,
BJoel@GaleNetwork.com, Coslanzo@belisoulh.nel, ScottKranz@Slralegica.nel,
Domowitz@Belisoulh.nel, MKart78796@aol.com, BYoung@ybkglaw.com, SnavePJ@aol.com,
RodLWhile@aol.com, JLGarcia1@DadeSchools.nel, BReich@WilliamslslandClub.com,
JEB2800@aol.com, Dorfmanfe@aoi.com, Arl4271 027@aol.com, rschneider@abramsanlon.com,
BPS2706@aol.com, Joelhiliman@aol.com, RowenaReich@aol.com, WlMGR3000@aoi.com,
Jeri3000@aol.com, Dargelo@beliamareassocialion.nel
1. GO TO GOOGLE : CITY OF AVENTURA - COMMISSIONERS -
2. Requesl60 Day Continuance for IMPACT Sludy
3. Sign PETITIONS at Security Desk in your Buildings.
4. Avenlura City Hali TONITE @ 6PM. Shuttles picking up @ each building
starting @ 5PM.
5. SAY A PRAYER ThaI WE Prevail...
PATRICIA
Patricia Robinson Bethuel, CEO,CCFC
Claude Gaslon Bethuel, CPCE
Hospilality & Tourism Associates
-Induslry Marketing Since 1981 -
TASTE OF AMERICA (R)
Gourmel Getaways (tm)
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Tomorrow's Money: Today!
T. 305933.4005 F: 305933.9094
Tasle_America@wetv.net
Wednesday, Februlll}' 01, 2006 America Online: Cupecoyx
Page 1 of 1
Subj: Lincoln Point
Date: 2/1/2006 11 :53:20 A.M. Eastern Standard Time
From: HalZelman1@aol.com
To: bjoel@galenetworkcom, JudgeRD@aol.com
Hi Bob @ Billy
I Have lived al WI. For pasl17years. Ilhink lhe world of bolh you fine
gentlemen, I have supported bolh of you in ali your endeavers regarding WI..
It bothers me 10 hear people speak badly about both of you. Would you be kind
enough to give me an explanation as 10 why you voted the way you did. I would
like 10 stand up for you when lhe subjecl comes up.
Best Regards
Hal Zelman
E-mail halze.man1@aOl.com
Wednesday, February 01, 2006 America Online: Cupecoyx
Page 1 of2
Subj: Re: Lincoln Pointe
Dale: 2/1/20069:48:10 AM. Eastern Standard Time
From: BETH-ROB@webtv.net
To: Fpm1@aoLcom
CC: MarshaIi1231@aoLcom, Ii_alien@belisoulh.nel, ClaireL77@aol.com, RMSwarte@aoLcom,
BernieSg6@aoLcom, DOCFAB2000@aol.com, DBSUTTIN98@aoLcom, dif1900@yahoo.com,
Houlkin@yahoo.com, HShapley@aOl.com, Marfurshie@aoLcom, psquire22@msn.com,
mirskym@belisoulh.nel, Debm1027@aol.com, DICKROSS5@aol.com, roser3@yahoo.com,
mnrgorr@yahoo.com, LenoreT18@aol.com, DAA 1318@aoLcom, LSG1000@aol.com,
iarry@bardinlLcom, Leneepapa@aol.com, S5rf@aol.com, cvidueira@huizenga.com,
GregBankhursl@wcicommunilies.com, EBarrocas@aol.com, hank@aqua.nel,
replicaitaly@earthlink.nel, sammy@wheremindscreale.com, wfelder@beiisoulh.nel,
Sheslein@belisoulh.nel, epst67@belisoulh.nel, WlDC306@belisoulh.net,
EdwardDDavis@aol.com, Jomarahn@belisouth.net, harveyspear@yahoo.com,
hman305@comcasl.nel, JSKLLONE@aol.com, SmileK@aol.com, AJUB26@yahoocom,
TheSydneyStyle@aol.com, Caplinscov@aol.com, Jeruc03@Belisoulh.nel,
MarleneSlernberg@Yahoo.com, BarbaraBt2000@aol.com, Laurie. Wynn@UBS.com,
Fattamama@aol.com, Miamibil@aol.com, HAKALI@aol.com, PSS502@aoLcom,
Molady@belisoulh.nel, MarieHinderliler@aol.com, Michael. Hornslein@att.nel,
DANYELlA@aoLcom, HMisrahi@Yahoocom, CMVdesigns@Yahoo.com,
BJoel@GaleNetwork.com, Coslanzo@belisoulh.nel, ScottKranz@Slralegica.nel,
Domowitz@Belisoulh.nel, MKart78796@aol.com, BYoung@ybkglaw.com, SnavePJ@aol.com,
RodL While@aol.com, JLGarcia1@DadeSchools. nel, BReich@WiliiamslslandClub.com,
JEB2800@aol.com, Dorfmanfe@aol.com, Arl4271 027@aol.com, rschneider@abramsanlon.com,
BPS2706@aol.com, Joelhiliman@aol.com, RowenaReich@aol.com, W1MGR3000@aol.com,
Jeri3000@aol.com, Dargelo@beliamareassocialion.nel
Good Moming Frank!
Weli - Articlaled ...
Please Read Our Email of this moming re:Petitions For The 60-day
Continuance FAXED to every Building [ 4 Pages coliected at lasl nile's
Meeting! ]
& the Request 10 George for Emails 10 Mayor Gottlieb & ALL Commissioners
re: said Continuance.
ALSO: Phil Vova should get Biscayne Cove Residenls [ And, The Peninsula
& the other affecled BUILDINGS] 10 secure lhe same Pelitions from THEIR
Residents. The Businesses facing Biscayne should ALSO be included!
We empathize lhat lhese Developers spenl $ 50 Million - however, lhey
made a gross error in Judgemenl in choosing a Neighborhood lhat is
already exceeding the density levels .... AND, if they proceed to
liligale, WI- our Neighbors - and the City of Avenlura needs to
Counler-Sue !
PERIOD I!!!
Stili Truly Concerned,
PATRICIA
Palricia Robinson Belhuel, CEO,CCFC
Claude Gaslon Belhuel, CPCE
Hospitality & Tourism Associates
- Industry Marketing Since 1 981 -
TASTE OF AMERICA (R)
Wednesday, February 01, 2006 America Online: Cupecoyx
Page 2 of2
Gourmet Getaways (tm)
Tasleful Tuesdays (tm)
FANTASY FEASTS - Any Nite
Global Funding Group
Tomorrow's Money: Today!
T: 305 933.4005 F: 305 933.9094
Taste_America@wetv.net
Wednesday, February 01, 2006 America Online: Cupecoyx
BILLY JOEL
Page 1 of2
From:
To:
Sent:
Subject:
"jerry." <jeruc03@belisouth.nel>
"JOEL, BILLY" <BILL YJOEL13@GMAIL.COM>
Wednesday, February 01, 2006 8:20 AM
Fw: TONITE ! CITY COMMISSION MEETING: BE THERE !!!
Someone else in the act. I'm moving to Alaska!
jerry...
----- Original Message -----
From: "Bethue1- Patricia & Claude" <BETH-ROB@webtv.net>
To: <Fpm l@aol.com>; <Marshalll231@aol.com>; <11_ allen@bellsouth.net>;
<ClaireL 77@aol.com>; <RMSwarte@aol.com>; <BemieS96@aol.com>;
<DOCF AB2000@aol.com>; <DBSUTTIN98@aol.com>; <difl900@yahoo.com>;
<Houtkin@yahoo.com>; <HShapley@aol.com>; <Marfurshie@aol.com>;
<psquire22@msn.com>; <mirskym@bellsouth.net>; <Debm I 027@aol.com>;
<DlCKROSS5@aol.com>; <roser3@yahoo.com>; <mnrgorr@yahoo.com>;
<LenoreT18@aol.com>; <DAA 1318@aol.com>; <BETH-ROB@webtv.net>;
<LSG 1 OOO@aol.com>; <larry@bardintl.com>; <Leneepapa@aol.com>;
<S5rf@aol.com>; <cvidueira@huizenga.com>;
<GregBankhurst@wcicommunities.com>; <EBarrocas@aol.com>; <hank@aqua.net>;
<replicaitaly@earthlink.net>; <sammy@wheremindscreate.com>;
<wfelder@bellsouth.net>; <Shestein@bellsouth.net>; <epst6 7@bellsouth.net>;
<WIDC306@bellsouth.net>; <EdwardD Davis@aol.com>; <Jomarahn@bellsouth.net>;
<harveyspear@yahoo.com>; <hman305@comcast.net>; <JSKLLONE@aol.com>;
<SmileK@aol.com>; <AJUB26@yahoo.com>; <TheSydneyStyle@aol.com>;
<Joelhillman@aol.com>; <CaplinsCov@aol.com>; <Jeruc03@Bellsouth.net>;
<MarleneStemberg@Yahoo.com>; <BarbaraBT2000@aol.com>; <LynLevy41 @aol.com>;
<Laurie. Wynn@UBS.com>; <Fattamama@aol.com>; <Miami Bil@aol.com>;
<LinSON4@aol.com>;<Hakali@aol.com>; <PSS502@aol.com>;<CupercoyX@aol.com>;
<Molady@bellsouth.net>; <MarieHinderliter@aol.com>;
<Michael.Hornstein@att.net>; <Dany El ia@aol.com>; <HM israhi@Yahoo.com>;
<CMV designs@Yahoo.com>; <BJoel@GaleNetwork.com>; <Costanzo@bellsouth.net>;
<ScottKranz@Strategica.net>; <Domowitz@Bellsouth.net>; <MKAR T78796@aol.com>;
<BY oung@ybkglaw.com>; <Fpm l@aol.com>; <SnaveP J@aol.com>;
<RodL White@aol.com>; <JLGarcial@DadeSchools.net>;
<BReich@WilliamslslandClub.com>; <JEB2800@aol.com>; <DorfmanFE@aol.com>;
<Arl427I 027@aol.com>
Sent: Wednesday, February 01, 2006 7:55 AM
Subject: TONlTE ! CITY COMMISSION MEETING: BE THERE !!!
From: BETH-ROB@webtv.net(Bethuel - Patricia & Claude) Date: Wed,
Feb 1,2006, 7:36am To: kriyal08@comcast.net(GeorgeTower),
CVidueira@Huizenga.com Cc: Sydney@TheSydneyStyle.com (Sydney) Subject:
COMMISSION MEETING TONIGHT - BE THERE I!!
2/1/2006
Great Recap, George!
Please let EVERY Resident know that each Building on the Island received
a FAX of the PETITION To The Avenlura City Commission to grant a 60-day
Continuance at their Commission Meeting this evening Re: the Lincoln
Point Project.
Last Nte's Meeting generated 4 Pages ... We should be armed with 40 OR
400 !
Why not ask Phil Vova to get Biscayne Cove to do the same, as well as
Peninsula & the other Buildings affected?
This Morning: EVERYONE Should Emai1 the Request For the 60-day
Continuance TO MAYOR GOTTLIEB & EVERY COMMISSIONER. Can YOU provide
their Emails ???
Lastly : Can we - as affected parties - send an Email to Burton Young,
pleading for his assistance ONE LAST TIME in this most critical Battle
For The Peaceful Survival of our Beloved Williams Island ???
Truly Concemed,
PATRICIA & CLAUDE
Patricia Robinson Bethuel, CEO,CCFC
Claude Gaston Bethuel, CPCE
Hospitality & Tourism Associates
- Industry Marketing Since 1981 -
TASTE OF AMERICA (R)
Gourmet Getaways (tm)
Tasteful Tuesdays (tm)
F ANT ASY FEASTS - Any Nite
Global Funding Group
Tomorrow's Money: Today!
T : 305 933.4005 F: 305 933.9094
Taste _ America@wetv.net
Page 2 of2
2/1 /2006
; . .. ..... ..4...l.
. , ,_:_-::-.,1_...
,.-~
.~' "
.. '~\,.. \
.~ I~'
~.. \ .""
;,~.
Page I of I
BILLY JOEL
From:
To:
Sent:
Subject:
"jerry." <jeruco3@belisoulh.nel>
"JOEL, BILLY" <BILLY JOEL 13@GMAIL.COM>
Wednesday, February 01, 2006 7:00 AM
Fw: We do live in the land of lunatics
fyi....
jerry...
---- Original Message --
From: Phrases1@aol.com
To: JERUC03@belisoulh.nel
Sent: Tuesday, January 31, 2006 11 :00 PM
Subject: We do live in the land of lunatics
Lincoln Pointe now will be an almost 900 foot wraparound the edge of the property building of 315 feet in
height ... equivalent to a wall from the start of the property and around to the water's edge across from
1000. ... an abomination. What a farce! Since a football field is ...
2/1/2006
Page lof3
BILLY JOEL
From:
To:
Sent:
Attach:
Subject:
"jerry." <jeruco3@belisouth.nel>
"JOEL, BILLY" <BILLY JOEL 13@GMAIL.COM>
Wednesday, February 01, 2006 7:46 AM
Island.pdf
Fw: Commission Meeling Tonight-BeThere
Billy...take a moment read this and look at the aerial view...
jerry...
----- Original Message ----
From: Phrases1@aol.com
To: RodLWhite@aol.com ; BReich@wiliiamsislandclub.com ; SnavePJ@aol.com ; JEB2800@aol.com ;
JERUC03@belisoulh.nel ; HARIAN@aol.com
Cc: Ffraynd@aoLcom ; Miamibil@aol.com ; JSKLLONE@aoLcom
Sent: Wednesday, February 01, 2006 7:26 AM
Subject: GT: Commission Meeting Tonighl-BeThere
Date:
COMMISSION MEETING
TONIGHT-BE THERE
2/1/2006 3:26:19 A.M.
Eastern Standard Time
kriyal08@comcast.net
thesydneystyle@aol.com
Subject:
From:
To:
Greetings Islanders:
Those of you who were at the Lincoln Point Town Hall meeting in the 1000
Bldg. last night may have been surprised to hear just how large the
proposed Lincoln Point project may be. An attorney and architect from the
Lincoln Point Developer made a presentation to residents at the request of
POA President Carlos Vidueira.
We were told that the new "smaller version" of the building will stand up
to 315 feet high and up to 900 feet long. To put this into perspective, a
building of that size would stand as high as the 6000 building (Bello More)
and would be longer than the Titanic. (This is not a joke)
I have attached a photo. The yellow line shows the approximate footprint of
the building (not drawn to scale).
POA Representative Harvey Houtkin surmised thot if the property on Williams
Island is worth approximately 1.5 billion dollars then even a 10'>'0 loss of
property value due to the loss of views from apartments is equal to 150
million dollars in damages that we may suffer os 0 result.
Our POA Board unanimously voted to hire an attorney to represent us at the
City Commission meeting. Our POA should be commended for taking quick
2/1/2006
Page 2 of3
action especially President Carlos Vidueiro.
Biscayne Cove Condominium has already hired Land Use attorney Tucker Gibbs
to represent them.
Unfortunately Billy-Bob did not show up despite the invitations to the
meeting extended to them by POA President Carlos Vidueira nor did they send
a message to their neighbors attending the meeting nor did they answer the
emails that Islanders, including yours truly, sent to them.
It is imperative that you attend the City of Aventura Commission meeting
tonight (Wed.) at 6 PM at Aventura City Hall. Island shuttle buses will
begin running to City Hall at 5 PM and will bring residents bock home.
The City Commission is scheduled to vote tonight on a deal that the City
made with the Lincoln Point developer without including US as a party to the
deal. Billy-Bob and the other Commissioners intend on granting an exemption
from the building moratorium to the the developer of Lincoln Point. That
deal includes a stunning provision for the City of Aventura to make
reasonable efforts to convert NE 31st Court into a public road. (this road
currently owned by our POA stretches from 183rd St. post Biscoyne Cove into
Lincoln Point) Part of that road can be seen in the attached photo marked in
red. The process may require the City to seize our road from US (against
our will) through eminent domain which would benefit the developer of the
Lincoln Point property. As you know NE 31st Court, which we paid for and
was included in the $17,000,000 Clubs purchase deal, is considered a very
valuable and highly coveted road since it is the only road going into
Lincoln Point. What could possibly motivate Billy-Bob to act against the
best interests of Islanders that they were elected to represent and protect
since they live here too? As you recall Billy lives in the 2600 building
and Bob lives in the 3000 building.
3 QUESTIONS:
1. Why do Billy Joel and Bob Diamond intend to vote in favor of such a
lopsided deal that might force US to hove our valuable property taken away
from us by the City of Aventura?
2. Why did Bob Diamond and Billy Joel fail to include Williams Island as a
party to this agreement since we are directly impacted and involved in it
since we own the road in question?
3. Why did Billy-Bob fail to inform their constituents here on the Island
about this unfair deal that they were supporting behind our backs? Had it
not been for Med Village resident, Burton Young, Esq. sounding the alarm
bell and POA President Carlos Vidueira' s swift actions to inform residents
and aggressively protect our interests would you hove known about this
situation?
2/1/2006
Page 3 of3
It is incumbent upon our Commissioners to answer these reasonable questions
especially since they refused to attend last night's meeting with their
neighbors in a friendly and informal setting.
That is why your attendance is SO IMPORTANT.
George Tower
Williams Island Residents Coalition
2/1/2006
To: Commissioner Billy Joel
From: Residents Carlos and Wendy Pagan
2600 Island Blvd. #2905
Aventura, FL 33160
January, 31 2006
Dear Mr. Joel,
We understand that the City of Aventura has gotten itself between a rock and a hard
place with regards to the proposed Lincoln Pointe Project. We request that you as a
free man, swom to represent our citizens, give us a chance to be heard. It's the only
fair thing to do given the speed and stealth of the developers on this project. Give us 90
days for an evaluation of the traffic and emergency planning issues on 183rd Street.
Since Hurricane Wilma, there is new evidence to consider regarding the wind tunnel
effect of the proposed tower near the Minto tower and our Williams Island buildings.
These might end up literally being life and death issues for us here on the Island. It
will cost very little, relatively speaking, for us to be granted a continuance. This
exploratory motion does not put you in any additional jeopardy.
The Lincoln Point 28-story very long wall is not an acceptable compromise to the
original design. There is still time to do the right thing Billy. If the City of Aventura
made a legal mistake in trying to follow the voters clearly implied mandale for a
building moratorium, then let's consider taking the hit together, as a community!
Given the size and scale of the Aventura City budget and coffers we can afford to take
this painful penalty if it saves our city from certain gridlock, a plummeting quality of
life and property values.
Billy the voters will forgive the commission for the mistake on legal technicality, but
not for an out and out corruption of the democratic process in these matters.
We urge you to do the right thing, not the expedient thing. There is a transcending
court of reckoning on this that is well beyond the scope of the City of A ventura. Please
save us from this nightmare on 183rd street. We leave open the possibility that you
will choose for the democratic principal and ethic. Please consider the long range
impact of this decision, please vote for the continuance. If the continuance is not on the
floor, would you please bring it up as a resolution? You can champion the fair and just
thing to do.
Thankyou, ?~ .
~ Wend~ Pagan
305-936-0355 Home office.
I'
d'\j~\ ~1 L--
1
Page 1 of 1
BILLY JOEL
From:
To:
Sent:
Subject:
"Teresa Soroka" <SorokaT@cityofavenlura.com>
<biliyjoeI13@gmail.com>
Wednesday, February 01,2006 8:57 AM
FW: Lincoln Pointe building proposal
From: Sylvia R Garcia 2 [mailto:sylviargarcia2@comcast,netj
Sent: Tuesday, January 31, 2006 9:03 PM
To: bjoel
Cc: Susan Gottlieb
SUbject: Lincoln Polnte building proposal
Dear Commissioner,
We want to express our opposition to the Lincoln Pointe proposal for the 28-floor, 450-plus residence "solution" to
their building issues with lhe City.
1) The area cannot viably absorb lhe resulling exorbitant traffic volume should lhe developers go
ahead, endangering Wiliiams Island residents' access 10 emergency services such as medical, fire and police
responses.
2) Issues regarding property rig hIs of lhe Williams Island community cannol be settled between lhe City and lhe
developers withoul involvemenl of lhe Island community.
We urge you to vote against this latesl proposal and support adherence to the new planning limits on new
construclion.
Sylvia & Argelio Garcia
2000 Island Blvd, ApI 90g
Williams Island,
Avenlura, FL
2/1/2006
Page 1 of 1
Subj: Re: Lincoln Pointe
Date: 2/1/200610:10:07 A.M. Eastern Standard Time
From: Fpm1@aol.com
To: BETH-ROB@webtvnet
CC: MarshaIi1231@aol.com, Ii_alien@belisouth.nel, ClaireL77@aoLcom, RMSwarte@aoLcom,
BernieS96@aoLcom, DOCFAB2000@aol.com, DBSUTTIN98@aoLcom, dif1900@yahoo.com,
Houlkin@yahoo.com, HShapley@aOl.com, Marfurshie@aoLcom, psquire22@msn.com,
mirskym@belisoulh.nel, Debm1027@aol.com, DICKROSS5@aol.com, roser3@yahoo.com,
mnrgorr@yahoo.com, LenoreT18@aol.com, DAA1318@aoLcom, LSG1000@aol.com,
larry@bardintl.com, Leneepapa@aol.com, S5rf@aol.com, cvidueira@huizenga.com,
GregBankhursl@wcicommunilies.com, EBarrocas@aol.com, hank@aqua.nel,
replicailaly@earthlink.nel, sammy@wheremindscreale.com, wfelder@belisoulh.nel,
Sheslein@bellsoulh.nel, epst67@belisoulh.nel, WlDC306@belisoulh.nel,
EdwardDDavis@aol.com, Jomarahn@belisoulh.nel, harveyspear@yahoo.com,
hman305@comcasl.nel, JSKLLONE@aol.com, SmileK@aol.com, AJUB26@yahoo.com,
TheSydneyStyle@aol.com, Capiinscov@aol.com, Jeruc03@Belisoulh.nel,
MarleneSternberg@Yahoo.com, BarbaraBt2000@aol.com, Laurie. Wynn@UBS.com,
Fattamama@aol.com, Miamibil@aoLcom, HAKALI@aol.com, PSS502@aol.com,
Moiady@belisoulh.nel, MarieHinderliler@aol.com, Michael. Hornslein@att.nel,
DANYELlA@aoi.com, HMisrahi@Yahoo.com, CMVdesigns@Yahoo.com,
BJoel@GaleNetwork.com, Coslanzo@belisoulh.nel, ScottKranz@Slralegica.nel,
Domowitz@Belisoulh.nel, MKart78796@aol.com, BYoung@ybkglaw.com, SnavePJ@aol.com,
RodL While@aol.com, JLGarcia1 @DadeSchools.nel, BReich@WiliiamslslandClub.com,
JEB2800@aol.com, Dorfmanfe@aol.com, Arl4271 027@aol.com, rschneider@abramsanlon.com,
BPS2706@aol.com, Joelhillman@aOl.com, RowenaReich@aOl.com, WlMGR3000@aOl.com,
Jeri3000@aol.com, Dargelo@bellamareassocialion.nel
Patricia,
We should conlacl via email our district commissioners Biliy Joel, Bob Diamond, Luz Weinberg and Zev
Auerbach and leI them know thallhey have 10 answer for lheir aclions on approving lhe Lincoln Poinle "IRON
CURTAIN" and their lotal disregard for lhe welfare and safety of lheir consliluenls as weli as placing us in
jeopardy of losing a piece of Wiliiams Island to eminent domain.
We should also send accolades and our show of support to Susan Gottlieb for standing up for our rights when
ali of lhe commissioners turned on her and us.
By way of this email, I am requesting the email addresses of the aforementioned.
Sincerely,
Frank Mengrone
> This message is intended only for the use of the addressee and may contain
> Information that is PRIVILEGED and CONFIDENTIAL.
> If you are nollhe inlended recipienl, you are hereby nolified lhal any
> Dissemination of lhis communicalion is slriclly prohibited.
> If you have received this communication in error, please
> Erase ali copies of the message and its attachments and notify us
> Immedialely. Thank you.
Wednesday, February 01, 2006 America Online: Cupecoyx
Page 1 of 1
Teresa Soroka
From:
Sent:
To:
luzwelnberg@aol.com
Wednesday, February 01, 20064:45 PM
Teresa Soroka
Subject: Fwd: COMMISSION MEETING TONIGHT-BE THERE
-----Original Message-----
From: DAA1318
To: Fpml; bjoel@galenetwo; Judge RD; LuzWeinberg
Cc: Marshali1231; "_a"en@be"south.net; ClaireL77; RMSwarte; BernieS96; DOCFAB2000;
DBSUTTIN98; dif1900@yahoo.com; Houtkin@yahoo.com; HShapley; Marfurshie;
psquire22@msn.com; mirskym@belisouth.net; Debml027; DICKROSS5; roser3@yahoo.com;
mnrgorr@yahoo.com; LenoreT18; LSG1000; larry@bardintl.com; Leneepapa; S5rf;
cvidueira@huizenga.com; GregBankhurst@wcicommunities.com; EBarrocas; hank@aqua.net;
re plica italy@earthlink.net; sa m my@wheremindscreate.com; wfelder@bellsouth.net;
Shestein@bellsouth.net; epst6 7@bellsouth.net; WIDC306@bellsouth.net; EdwardDDavis;
Jomarahn@bellsouth.net; harveyspear@yahoo.com; hman305@comcast.net; JSKLLONE; SmileK;
AJUB26@yahoo.com; TheSydneyStyle; Caplinscov; Jeruc03@Bellsouth.net;
MarieneSternberg@Yahoo.com; BarbaraBt2000; Laurie.Wynn@UBS.com; Fattamama; Miamibil;
HAKALI; PSS502; Mol ady@bellsouth.net; MarieHinderliter; MichaeI.Hornstein@att.net; DANYELIA;
H Misra hi@Yahoo.com; CMVdesig ns@Yahoo.com; BJoel@GaleNetwork.com;
Costanzo@bellsouth.net; ScottKranz@Strategica.net; Domowitz@Belisouth.net; MKart78796;
BYoung@ybkglaw.com; SnavePJ; RodLWhite; JLGarcial@DadeSchools.net;
BReich@WilliamsIslandClub.com; JEB2800; Dorfmanfe; Ar14271027;
rschneider@abramsanton.com; BPS2706; Joelhillman; RowenaReich; WIMGR3000; Jeri3000;
da rgelo@bellamareassociation.net; BETH- RO B@webtv.net
Sent: Wed, 1 Feb 2006 3:52:40 PM Eastern Standard Time
Subject: Re: COMMISSION MEETING TONIGHT-BE THERE
Billy Joel and Bob Diamond:
We the People of Williams Island collectively say SHAME on Both of you.
Perhaps you should consider resigning from the Aventura city council
and allow representatives who will protect the interests of their constituents take
your place.
David Arnowitz
(former supporter and campaign donator)
2/1/2006
Page 1 of2
Teresa Soroka
From: iuzweinberg@aol.com
Sent: Wednesday, February 01, 2006 4:45 PM
To: Teresa Soroka
Subject: [SPAM_ALERT] Fwd: COMMISSION MEETING TONIGHT-BE THERE
Importance: Low
-----Original Message-----
From: Fpm1
To: bjoel@galenetwo; Judge RD; LuzWeinberg
Cc: Marshall1231; "_a"en@be"south.net; ClaireL77; RMSwarte; BernieS96; DOCFAB2000;
DBSUTTIN98; dif1900@yahoo.com; Houtkin@yahoo.com; HShapley; Marfurshie;
psquire22@msn.com; mirskym@bellsouth.net; Debm1027; DICKROSS5; roser3@yahoo.com;
mnrgorr@yahoo.com; LenoreT18; DAA1318; LSG1000; larry@bardintl.com; Leneepapa; S5rf;
cvidueira@huizenga.com; GregBankhurst@wcicommunities.com; EBarrocas; hank@aqua.net;
replicaitaly@earthlink.net; sammy@wheremindscreate.com; wfelder@bellsouth.net;
Shestein@bellsouth.net; epst67@bellsouth.net; WIDC306@bellsouth.net; EdwardDDavis;
Jomarahn@bellsouth.net; harveyspear@yahoo.com; hman305@comcast.net; JSKLLONE; SmileK;
AJUB26@yahoo.com; TheSydneyStyle; Caplinscov; Jeruc03@Bellsouth.net;
MarleneSternberg@Yahoo.com; BarbaraBt2000; Laurie.Wynn@UBS.com; Fattamama; Miamibil;
HAKALI; PSS502; Molady@bellsouth.net; MarieHinderliter; MichaeI.Hornstein@att.n et; DANYELIA;
HMisrahi@Yahoo.com; CMVdesigns@Yahoo.com; BJoel@GaleNetwork.com;
Costanzo@bellsouth.net; ScottKranz@Strategica.net; Domowitz@Bellsouth.net; MKart78796;
BYoung@ybkglaw.com; SnavePJ; RodLWhite; JLGarcia1@DadeSchools.net;
BReich@WilliamsIslandClub.com; JEB2800; Dorfmanfe; Ar14271027;
rschneider@abramsanton.com; BPS2706; Joelhillman; RowenaReich; WIMGR3000; Jeri3000;
da rgelo@bellamareassociation.net; BETH - RO B@webtv.net
Sent: Wed, 1 Feb 2006 1:00:15 PM Eastern Standard Time
Subject: COMMISSION MEETING TONIGHT-BE THERE
Biliy Joel, Bob Diamond and Luz Weinberg,
I concur wilh Joel Hillman.
This projecl is a disgrace, and your lolal disregard for lhe residenls eftecled by lhis monslrosily baffles lhe mind.
Be advised lhal Tonighl, if you do nol vole down lhis maller, we will requesl a conlinuance from lhe Avenlura
commission on lhe Lincoln Poinle (LP) maller.
You should be aware lhallhe residenls (lhe volers lhal elecled you 10 office) of Williams Isiand
vehemently oppose lhe LP Project.
My wife, myself and everyone allhe meeling lasl nighl were appalied allhe unveiling of lhe 28 story 1.000 foot
lanD "Iron Curtain" calied Lincoln Poinle developmenllhal willlhrow Williams Island (WI) inlo mid-day
darkness.
We were shocked and dismayed 10 hear lhal part of lhe agreemenllhe Avenlura commissioners made wilh LP
was 10 offer lhem property owned by WI and 10 slale in lhe agreemenllhal if WI did nol agree 10 selilhe property
lhey would condemn lhe property and lake/seize our property via lhe unconscionable law of eminenl domain.
We sland behind Mayor Susan Golllieb for slanding up for our rig hIs when ali of lhe olher commissioners lurned
on her and us.
I reilerale Joel Hiliman's cali for you 10 vole down lhe Lincoln Poinle Maller allonight's meeling
Frank Mengrone
3000 Island Blvd.
Forwarded Message:
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Dale: 2/1/20067:36:43 AM Easlern Slandard Time
2/112006
Page 2 of2
From:
To:
cc:
Joelhiliman
JU9ill! RQ, BJOEJ,,@g?lenetwork.com
CVidu eiraCW Hu iZ!109Sl_: GPrT)
IF the attached site plan, showing the immense building purported to be lhe proposed Lincoln Point building is
anywhere near accurale, I cannol undersland how you couid have supported lhis project. I cannol, by any slrelch
of the imagination, believe lhat lhe most vile, and corruptible City Board could condone lhe construction of a
monsler like lhal anywhere, leI alone in lhe face of lhe communily lhal pul you bolh in office.
If you persisl in approving lhe aClion, I for one surely hope lhallhe POA wili make every effort 10 fighllhis ung-dly
decision, regardless of lhe cosllo our communily.
I ask you, as sensible people, and residenls of Wiliiams Island, 10 vole down lhe aclion allonighl's meeling. The
projecl is a pure lravesly.
Joei
> This message is inlended only for lhe use of lhe addressee and may conlain
> Informalion lhal is PRIVILEGED and CONFIDENTIAL.
> If you are nollhe inlended recipienl, you are hereby nolified lhal any
> Disseminalion of lhis communicalion is slriclly prohibiled.
> If you have received lhis communicalion in error, piease
> Erase ali copies of lhe message and ils attachmenls and nolify us
> Immedialeiy. Thank you.
2/1/2006
30 January, 2006
To: City of Aventura, Community Development Department
From: Mary L. Peck, a property owner in Point East
Re: Proposed redevelopment of 17900 NE 31st Ct
Gentlemen:
Last summer, I was forced out of my affordable rental in Hollywood due to a
condo conversion in which I felt it would not be sensible to participate. After
deciding to buy an apartment, tumed my attention to the City of Aventura. While
the availability of property was a factor, I also bought here in Aventura, and
particularly here at Point East, in no small part because I felt that any city wise
enough to impose a moratorium on development would come out of that
moratorium with a restored sense of community. Now I see that I discounted the
desire of politicians to increase their tax base above all other considerations.
Let me start by saying I'm not one of the paranoid crowd of seniors who
descended on the planning meeting intent on keeping our property here from
being "confiscated". Nor do I fail to recognize the need of the city to grow, at
least a bit, in the coming years, and that such growth must come from higher
density building. I am, in principle, in favor of such building, because it preserves
such small amount of wild space as remains in South Florida, rather than
allowing it to be paved over for yet another Spanish Colonial tract.
No, I don't like the idea of a high rise being built to the east of my east-facing
property and blotting out my sun. No, I don't care for the idea that even more
cars will be dumped out on Biscayne to slow my commute. But my objections
center on where my story started, which is the loss of the rental properties in
Lincoln Pointe.
If we lose our middle class rental properties, where are new citizens to locate
while they pick the neighborhood that's right for them? Where will our public
safety officers, hospital workers and schoolteachers live? Not in purchased
housing here, not on the salaries we pay them. How about our children as they
leave home and set up housekeeping? They will all flee to West Broward 'burbs,
leaving Aventura a city of long time owners aging in place, and wealthy transients
who see this as a place to winter, not their real home at all.
In short, this policy, which you think will grow our community, will only lead to a
higher population of investors and snowbirds which has no sense of "community"
at all. Please reconsider your decision. Thank you for your time.
R~S UIl9'-~' _____
Mary . Pe~
2980 Point East Drive 0-501
Aventura, FL 33160
MarvLPeck<Cv.aol.com
Page 1 of 1
Arleen Llanes
From: Teresa Soroka
Sent: Thursday, February 02, 2006 3:12 PM
To: Arleen Llanes
Subject: FW: Tonighls Meeling re: Lincoln Poinl
From: Jose Tabacinic [mailto:jose@arnetusa.com]
Sent: Thu 2/2/2006 2:59 PM
To: JudgeRD@aol.com; BJOEL@galenetwork.com; Susan Gottlieb; zxauerbach@cityofaventura.com; hholzberg; Iweinberg;
mstern
Cc: RodLWhite@aol.com; JEB280Q@aol.com; Plwines@aol.com; Marfurshie@aol.com; REDJOYCEBLUE@aol.com;
mirskym@belisouth.net; JLGarcia@dadeschools.net; CVidueira@Huizenga.com; I,-allen@belisouth.net; jtabacinic@belisouth.net;
houtkin@yahoo.com; Joelhillman@aol.com
SUbject: Tonights Meeting re: Lincoln Point
Dear Commissioners of Aventura:
I am a resident of Williams Island at the 7000 Island Building.
I urge you NOT to approve the Lincoln Point Project which you are about to vote tonight. If the project has
any legal right, I am sure you can work out some type of settlement in order to avoid the traffic disgrace it
will become if the building goes through. You have the responsibility to protect the way of life of the
residents of Aventura and you will be doing a big real estate mistake, such as the one in Lohemanns, if you
go ahead and approve this project.
I am sure that you understand the implications of this project, as most of you live nearby the proposed
project and are today submitted to traffic jams in the 183rd street.
If you decide to go ahead and approve the project, I will support as a member of the Property Owners
Association of Williams Island to invest in legal fees whatever will be necessary to oppose the building and
I will not forget those who voted in favor of the project during future elections times.
Jose Tabacinic
jtabaci nic@bellsouth.net
305 - 682 1577
2/2/2006
Teresa Soroka
Subject:
Bethuel - Patricia & Claude [BETH-ROB@webtv.nel]
Thursday, February 02,200610:04 AM
BETH-ROB@webtv.net; kriya108@comcast.net; Fpm1@aol.com; MarshaIi1231@aOl.com;
Ii_alien@belisouth.net; ClaireL77@aol.com; RMSwarte@aOl.com; BernieS96@aOl.com;
DOCFAB2000@aol.com; DBSUTTIN98@aol.com; dif1900@yahoo.com;
Houlkin@yahoo.com; HShapley@aol.com; Marfurshie@aol.com; psquire22@msn.com;
mirskym@belisouth.net; Debm1027@aOl.com; DICKROSS5@aOl.com; roser3@yahoo.com;
mnrgorr@yahoo.com; LenoreT18@aOl.com; DAA1318@aOl.com; LSG1000@aOl.com;
larry@bardintl.com; Leneepapa@aol.com; S5rf@aol.com; cvidueira@huizenga.com;
GregBankhurst@wcicommunities.com; EBarrocas@aol.com; hank@aqua.net;
replicaitaly@earthlink.net; sammy@wheremindscreate.com; wfelder@bellsouth.net;
Shestein@belisouth.net; epst67@belisouth.net; WIDC306@belisouth.net;
EdwardDDavis@aol.com; harveyspear@yahoo.com; hman305@comcast.nel;
JSKLLONE@aol.com; SmileK@aol.com; AJUB26@yahoo.com; TheSydneySlyle@aol.com;
Caplinscov@aol.com; Jeruco3@Belisouth.net; MarleneSternberg@Yahoo.com;
BarbaraBt2000@aOl.com; Laurie.Wynn@UBS.com; Fattamama@aol.com;
Miamibil@aol.com; HAKALI@aol.com; PSS502@aol.com; Moiady@belisouth.net;
MarieHinderliter@aoi.com; Michael.Hornstein@att.net; DANYELIA@aol.com;
HMisrahi@Yahoo.com; CMVdesigns@Yahoo.com; BJoel@GaleNetwork.com;
Costanzo@belisouth.net; ScollKranz@Stralegica.net; Domowitz@Belisouth.net; MKart78796
@aol.com; BYoung@ybkglaw.com; SnavePJ@aol.com; RodLWhile@aol.com; JLGarcia1
@DadeSchools.net; BReich@WilliamslslandClub.com; JEB2800@aol.com;
Dorfmanfe@aOl.com; ArI4271027@aol.com; rschneider@abramsanton.com; BPS2706
@aol.com; Joelhillman@aol.com; RowenaReich@aol.com; WIMGR3000@aOl.com; Jeri3000
@aol.com; Dargelo@beliamareassociation.net; Susan Gottlieb; mstern; Iweinberg; zauerbach;
RDiamond@CityofAventura.com; bjoel
TONITE'S City Of Avenlura Commission Meeting: 6PM -
From:
Sent:
To:
Lincoln Point Strategy TONITE :
Good Morning Carlos !
First I and foremost : I want to Congratulate you on your creative enforcement for the
decorum - and efficiency - of our Meetings. WHERE WERE YOU TWO YEARS AGO ???
Now: Re: my telephone call from Billy Joel :
1. He advised me that tonite's Continuance must be applied for by our Attorney.
2. Tonite's Commission Vote: To waive - or to stay the Moratorium [ which ends 2/7 !
3. IF they waive the Moratorium I the Settlement negotiated last month by 6 Commissioners
permits 28 [ vs 40 ] stories - with 416 units & 44 town homes.
4. If the Moratorium is stayed [ until 2/7 ) , the Developer will have the right to regain
their ORIGINAL position of 40 stories - 525 Units.
5. This Developer was given this Code more than 10 years ago by Dade County BEFORE the
City of Aventura was incorporated. [The Question to ask : WHY our former Commissioners did
not address the RAMPANT growth issues ??? ]
6. Our present Commissioners have drafted a NEW LDR Code that LIMITS our city's future
growth via" Existing units ".
7. The Comission just saw the Architect's rendering: Billy called it a " monstrosity"
II There is NO way the Commission will pass it ! "
8. The Developer can sue the city for $ 100 Million. All the affected communities [ and
1
the City ] can Counter-sue FOR MANY MILLIONS MORE !
Once it gets into the hands of a Judge: it's a 50 -50 shot!
9. There does need to be a detailed IMPACT Study rei an additional 300 to 500 cars a day
on a small one - lane road . { Question : How many cars per day now ? ]
10. Altho the standards for MINTO differ, it also must be reviewed - with the same
demanding scrutiny.
LASTLY : I called you yesterday BECAUSE I had sent Petitions - asking for a Continuance -
to every Building for the Residents to sign. The Managers said they needed YOUR OK !
Please Advise If You Will Make That Happen...
PATRICIA
patricia Robinson Bethuel, CEO,CCFC
Claude Gaston Bethuel, CPCE
Hospitality & Tourism Associates
- Industry Marketing Since 1981 -
TASTE OF AMERICA (R)
Gourmet Getaways (tm)
Tasteful Tuesdays (tm)
FANTASY FEASTS - Any Nite
Global Funding Group
Tomorrow's Money: Today
T : 305 933.4005 F: 305 933.9094
Taste America@wetv.net
2
Teresa Soroka
From:
Sent:
To:
Subject:
Belhuel - Palricia & Claude [BETH-ROB@webtv.net]
Thursday, February 02, 2006 10:46 AM
bdiamond
Fwd; TONITE'S City Of Aventura Commission Meeting: 6PM -
Attachments:
TONITE'S Cily Of Aventura Commission Meeting: 6PM -
L::....I
TONITE'S City Of
Aventura Comm...
Good Morning Bob !
What a pity Williams Island - and the other communities affected by the Lincoln Point
development - are impacted 80 dramatically - AND negatively !
Hopefully, I have stated the FACTS as related to me last evening by Billy Joel- and, I
will do so again at tonight's Commission Meeting
My sense is that THIS Developer used poor judgement in investing $ 50 Million in a
neighborhood that was already exceeding appropriate density levels
Let's PRAY for the wisest - and most judicious - SOLUTION,
PATTY
1
Page 1 of2
Teresa Soroka
From: Teresa Soroka
Sent: Thursday, February 02, 2006 1 :11 PM
To: 'Joelhillman@aol.com'
Subject: RE: [SPAM_ALERT] Tonights Meeting reo Lincoln Point
The City Commission has asked that I respond to your email.
Thank you for your interest in the City of Aventura. Your comments will be placed in the
City's file regarding this matter.
From: Joelhiliman@aoJ.com [mailto:Joelhiliman@aoJ.com]
Sent: Thursday, February 02, 2006 12:58 PM
To: JudgeRD@aol.com; BJOEL@galenetwork.com; Susan Gottlieb; zxauerbach@cityofaventura.com;
hholzberg; Iweinberg; mstern
Cc: RodLWhite@aol.com; JEB2800@aol.com; Plwines@aol.com; Marfur5hie@aOl.com;
REDJOYCEBLU E@aol.com; mirSkym@belisouth.net; J LGarcia@dadeschools.net; CVidueira@Huizenga.com;
Ii_alien@belisouth.net; jtabacinic@belisouth.net; houtkin@yahoo.com
Subject: [SPAM_ALERT] Tonight5 Meeting re: Lincoln Point
Importance: Low
My name Is Joel Hiliman, and I reside in the 3000 Bldg. at Wiliiams Island.
I received an email the other day, conlaining an architects site plan of the proposed project for Lincoln Point.
But first, I am an architect by profession, and a real estate developer, with about $750,000,000 of projects
deveioped and owned over the past 45 years. My projects were primarily in Chicago, but also in Pittsburgh,
Aspen, Phoenix, and many other cilies. I have deall with every imaginable form of govern men I, from staff up to
and including the Mayors of lhe communities.
When you incorporated the City of Aventura, you had the basis of a world class community, anchored by
Turnberry, Wiliiams Island, an extensive Mali, and many other outstanding projects. I am perfectiy aware of the
fact that certain properties were 'grandfathered in' from unincorporated Dade County, and that your position has
been that there is little that can be done to their 'vested rights'. For your information, many cities, Chicago
amongst them, have down zoned entire areas when it was determined that the then present
infrastructure was inadequate to support the zoning. They took action in order to support the health
and welfare of their communities. As much as they would like to accommodate the developers of major
projects, they had the internal fortitude to stand up to any litigation that might be forth coming. It
appears that your board is not made of the same stuff that they were.
IF the site plan, showing the immense building purported to be the proposed Lincoln Point building is anywhere
near accurate, I cannot understand how you, as representatives of our community, and who live in our
community could have supported the approval of this project. A building lhat is 900' long? Furthermore, you
have unilateraliy offered to oblain property rightfuliy owned by Wiliiams Island and make it available to the
developers of that absurdly overdeveloped property. And it is my understanding that you have indicated thai
you will condemn the property if necessary. And what purpose do you think will be served by acquiring by
slrong arm, that roadway, when lhe real problem as far as traffic is concerned is the one lane stretch of 183rd
Street 10 Biscayne. Think about lhal when you go 10 court to defend lhe action that will come from your
neighbors.
You have choked the community by approving every project that has come your way. 188th Street wili be an
urban nightmare. You approved an enormous and totaliy ugly property across from Moe's. The design is one
that is used by low cost housing develop men Is on lhe outskirts of Paris. Disgusting. The traffic generated from
these projecls have only two outlets to Biscay, lhal being Miami Gardens Drive and 191 st Street. The traffic will
2/2/2006
Page 2 of2
undoubtedly seek to use 183rd as an alternative, and the congestion will be beyond imagination.
You have a fiduciary responsibility to protect lhe health and welfare of our community. If you are worried aboul
a law suit from the developer of Lincoln Point, think twice about it. You may end up with a law suit from
everyone in site. I for one, will campaign our community to raise a very, very substantial amount of money to
take you ali to task, both corporately and individualiy.
I ask you, as sensible people, to vote down the action at tonight's meeting. The project is a pure travesty. The
traffic problems are monumental as is, lets not add to the problem.
Joel
2/2/2006
Page 1 of 1
Teresa Soroka
1 .
Q ~ tv M),\ I :bt J/\
From;
Sent:
To:
David M. Wolpin [DWolpin@wsh-law.com]
Monday, January 23, 2006 11 :10 AM
Teresa Soroka
@9
Ce: Eric M. Soroka
Subject: Lincoln Polnte
Teresa- I recommend that any emails or other correspondence received from citizens or others by any
commission member concerning lhe Waiver Application should be forwarded 10 you as a public record for
compilation and placement into the record of disciosures of ex parte communications at lhe Waiver application
hearing. Please again forward to each commission member the forms utilized for disclosure of ex parte
communications.
Needless to say, no member of the commission should allend any forums or discussions concerning the matter
prior to the Commission public hearing on the Waiver Application Item.
Please forward a copy of this email to each member of the Commission.
Thanks.
WEISS
SEROTA
HELFMAN
PASTORlZA
COLEl!<
BONISKE,I!A.
Ua"id 1\'1. \Volpin. E~q.
\Vciss Snow Helfman
Pastoriza Cole & Honiskc. P.A.
26()5 S. Bayshorc Dri\'(', Suite 420
Miami. FL .~J 1J.~
DW oloin(Q)wsh-Iaw.colJ)
Tel: ,105.,54.0XOO
Fax: 3()5~t\54-2_l,r,
This tlll'ss<'lge. together with ,my' attachmellts. is inlcllded nnl: for the addrcssL'c. It Illay' contain information which is legally
privileged. confidential and cxclllrt from disclosure. [I' YOLl arc not till' intended rccipiL'lll. you arc hcn..'by' notified thai allY
disclosure. copying. distribution. lIse. or <lny aClion or reliance on this communication is strictly prohihited. If )/OLl have
fl'ccivL'd this e-mail ill error, pkasL' notIfy thl' scndcl i11l1llcdiJIL'ly hy lekpholll' (~05~S54-()SOO) or h,y rdurn L'-maiJ and
delete the message, along with any attachmellts.
1/25/2006
tt CoMfIJ. J':J5/~~AJ
From: David M. Wolpin [mailto:DWolpin@wsh-law.com]
Sent: Fri 1/20/2006 3:48 PM
To: Teresa Soroka
Cc: Eric M. Soroka
Subject: FW: Aventura Sections 34-40 and 34-34
Teresa- in light of the upcoming quasi judicial hearing on the Moratorium Waiver application, please forward this
email and lhe attached City Code excerpl to each of the Commission members as a reminder to comply with
the public statement and conducl restrictions of Sec. 34-40. and with lhe ex parte communicalion restrictions
and disclosure requirements of Sec. 34-34. Please refer any queslions to me . Thanks for your assistance.
I>avid ~1. \Volpin. t:sq.
\Veiss Serota Heltillan
Pastoriza Cole & r~oniskl.\ P.A.
2(6) S. Bayshore Drivc. Suite 410
Miami, FI .B 133
DWolpin(ii)wsh-law.com
Tel: .1()5-~54-()~()()
I'ax: .1()5-~54-2.12.1
This mcssag.c. together with any attachments. i::; Intended ollly ror the ,H.idrcss('c. It may contain information \vhich is 1cgall~
privileged, confidential and C\cmrt from disclosure. If YOll ,lrc not the intcnded rccipicnL YOll arc hereby notified that any
disclosure. copying. diqributioll. use, (Jr any action nr r(,,'liaJlcc 011 this communication is strictly prohibited. If you have
received this e-mail inerror.pk>asc notify the sender i1l11llccilalt'I)' hy klephonl' (:.O."-X)4-0ROO) or by return ('-mail and
delete the message. along \vith any atlachmcnh.
From: Tara L. Gould
Sent: Friday, January 20, 2006 3:25 PM
To: David M. Wolpin
Subject: Aventura Sections 34-40 and 34-34
Sec. 34-34. Ex-parte communications.
1/25/2006
FW: Aventura Sections 34-40 and 34-34
Page 2 of3
(a) Except as otherwise specified herein, this section is adopted to follow the disclosure processes of
F.S. ~ 286.0115(1), and shall be construed so as to be consistent therewith.
(b) Except for the specific issue which is the subject of a pending quasi-judicia] matter for which an
application has been filed with the City pursuant to section 34-32 of this Code, any Commissioner may
choose to discuss the merits of any proposed project or development on which action may be taken by
the Commission with any person not otherwise prohibited by statute, charter provision, section 34-40 or
other ordinance, if the Commissioner complies with the applicable procedures of paragraph (c) and (d)
ofthis section 34-34. As to any specific issue which is the subject of a pending quasi-judicia] matter for
which an application has been filed with the City pursuant to section 34-32, outside of the public hearing
Commissioners are prohibited from discussing the merits ofthe specific issue for which approval is
sought by the pending application with any person other than the City staff. The term "specific issue", as
used in this paragraph, refers to the specific variance, conditional use, rezoning, site plan, plat approval
or like item for which approval is sought, rather than referring to the genera] matter, as opposed to the
merits, of the proposed project or development itself. Notwithstanding any contrary provision of this
paragraph (b), the prohibitions of this paragraph (b) shall not apply to applicant conferences with the
City Manager which are attended by individual Commissioners (no more than one Commissioner at
each conference) provided that the City Manager first finds and certifies in writing that the application
concerns a project of significant impact, and schedules such conferences. The term "project of
significant impact," as used in this paragraph, means a project which has the potentia] to substantially
enhance or substantially impair the public health, safety or welfare.
(c) Compliance with the procedures of this section 34-34 shall remove any presumption of prejudice
arising from ex-parte communication with any Commissioner.
(I) Oral communications. The subject of the communication and the identity of the person, group, or
entity with whom the communication took place shall be disclosed and made a part of the record before
final action on the application. At the quasi-judicia] hearing the person or persons responsible for the ex-
parte communication, any party to the hearing and any participant shall have the opportunity to contest
the accuracy of the matters disclosed.
(2) Written communications. Any written communication related to an application pending before the
Commission shall be forwarded to the appropriate staff for inclusion in the official file for the
application, and shall be disclosed on the record before final action on the matter. It shall be the
responsibility of the applicant to review the official file periodically to determine whether written ex-
parte communications have been placed in the official file.
(3) Investigations and site visits. Except as provided in paragraph (b) above, Commissioners may
conduct investigations and site visits and may receive expert opinions regarding a quasi-judicial action
pending before them. However, in any event, such activities shall not be presumed prejudicial to the
action if the existence and subject matter of the investigations, site visits, or expert opinions is made a
part of the record before final action on the matter and an opportunity for the parties and participants to
respond is provided prior to or at the hearing.
(d) Commissioners must make disclosures of their ex-parte communications (regard]ess of whether or
not such ex-parte communications are prohibited by paragraph (b) above) before or during the public
meeting at which a vote is taken on the application to afford persons a reasonable opportunity to refute
or respond to the communication.
(Ord. No. 200]-06, 9 3, 6-5-0]; Ord. No. 2002-28, 9 2, ] ]-]2-02)
1/25/2006
FW; Aventura Sections 34-40 and 34-34
Page 3 of3
Sec. 34-40. Public statements by Commissioners.
(a) The Mayor and Commissioners shall each avoid public)y expressing their intention, either directly
or indirectly, to vote for or against a pending quasi-judicial matter or working to influence public
opinion upon a pending quasi-judicial matter, prior to hearing held pursuant to City Code section 34-32.
A quasi-judicia) matter is pending when an application has been filed pursuant to City Code section 34-
32.
(b) The failure to comply with the restriction provided in paragraph (a) of this section shall not
invalidate any action or decision of the City Commission so long as the decision or action ofthe City
Commission is supported by competent substantial evidence of record as required by law.
(c) Any members of the City Commission violating the standard of conduct set forth above shall be
subject to public censure by the City Commission, subject to rules adopted by the City Commission
providing the accused Commissioner with a fair hearing, including an opportunity to be heard. The
Commission reserves the right, by subsequent ordinance to prospectively implement other sanctions, in
the event that the sanction provided for above is not effective in implementing the purposes of this
section.
T:H<t I.. (;nuld. ES(I.
Wei"" Scrnl;lllclrman
Pa'itori/<l Cok' &: Honiskc. P.A.
2(1(1) S. BJyshorc Drive. Suill' 420
Miami, n._ ~~ I ~3
EiQ~ld@wsh-law.co!!1
Tel: .105-854-0800
I'"'' .105-854-2323
This message. together \"ilh any all,-H.:hllll"nts. is intcnded only f(lr till' addn.:'sscc. It may (ontain Information \\hich is legally
privileged. confidential and e.\empt from disclosure. If YOll ar.: not lhl:.~ intended recipknt ~i()L1 arc hereby notified that any
disclosure. copying. distribution. use. or nny action or rcli<lllCC 011 this communication is strictly prohibited. If ~iOU have
received this ('-mail in ('ITOr. please Ilotif~i tilt' scndel im1l1l'dialcly' by tclcplH)I1c (.l,O~-X~4-0X()O) nr hy. return c-mail and
delete the lllessage. along \",jth any attachments.
1/2512006
City of Aventura City Commission Meeting Date
}//Y!~ (,
Agenda Item No.
:3
Date of Verbal Communication:
III { () C
.
Identity of Person or Entity Making Communication:
('AI? &05 Lf /DVL / R../l
Subject and Substance of Communication:
L-( rVr;r:JL!1/ '!)//]/rc
R ~: iJ.. j'lt:;!, tJ PC /2... -
fD~{/ fJa I
Respectfully,
Commissioner or Board Member
receiving cOT unication:
Filed this y-- day of
Name
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
&"<~.~.
'.... 7!{i'~-.'.'-\ ....-~.-..l':.i'I.. .....
I.~.',
~, '.
0Iy ~f E'~;I'
City of Aventura City Commission Meeting Date
Agenda Item No. 7
Date of Verbal Communication: i /} r ) 0 ~ ........ .J.) I /0'
Identity of Person or Entity Making Communication:
V JZ!ouUS
Subject and Substance of Communication:
_It.. \..."f VV\ \G ~ ih.... ') Ik L (Lvi'. '1 C c,vv' e d Vl/7crJ5
yYlUSI n(-/1/~1 'p""'-uJ('cT
Respectfully,
Commissioner or Board Member
receiving communication:
~tJ (jcJf.VC":,4c<
Name, ~D
Signatur~
Filed this ~ day of Fe h ' ,)00(, ..
DISCLOSURE OF VERBAL CONTACT
Ordinance 96-09
Fe~ I
;) G Ct~
City of Aventura City Commission Meeting Date
Agenda Item No. J:
Date of Verbal Communication:
Identity of Person or Entity Making Communication:
('v1 i1-!7e( /-JJvr" {y/or/}/h"-"v
Subject and Substance of Communication:
L I ~(OCrJ ,j/':'!-J1'.J:L - (c..';<-f?(Jh_ 1<E J ...5..\ l <=-
Lv ft- )' f+ c;-I?F'- sl /JJ/ (d7/~(_
Filed this~ day of
Respectfully,
Commissioner or Board Member
receiving communication:
-Z -<?\J ff u-e rzJl 4 C (
Nam~)
Sign' _
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Page I of I
Subj: JOEL HILLMAN'S EMAIL TO BILLY-BOB
Date: 2/1/200610:57:21 P.M. Eastern Standard Time
From: kriya108@comcasl.net
To: kriya108@comcasl.net
Greetings Islanders:
Here is an email that I received today from Joel Hillman in response to my
email memo about Lincoln Point. It contains his email to Billy Joel and Bob
Diamond.
George Tower
Wiliiams Island Residents Coalition
for your information. Your memo was outstanding. The entire community should
let both of our representatives know of their feelings on this matter. This
is one good use of email.
Joel
From: Joelhillman@aOl.com
Date: Wed, 1 Feb 2006 07:36:43 EST
To: JudgeRD@aol.com, BJOEL@galenetwork.com
Cc: CVidueira@Huizenga.com
Subject: Fwd: COMMISSION MEETING TONIGHT-BE THERE
If the attached site plan, showing the immense building purported to be the
proposed Lincoln Point building is anywhere near accurate, I cannot
understand how you could have supported this project. I cannot, by any
stretch of the imagination, believe that the most vile, and corruptibie City
Board could condone the construction of a monster like that anywhere, let
alone in the face of the community that put you both in office.
If you persist in approving the action, I for one surely hope that the POA
will make every effort to fight this ung-dly decision, regardless of the
cost to our community.
I ask you, as sensibie people, and residents of Williams Island, to vote
down the action at tonight's meeting. The project is a pure travesty.
Joel
Thursday, February 02, 2006 America Online: Cupecoyx
Page 1 of1
BILLY JOEL
From:
To:
Sent:
Subject:
"jerry." <jeruc03@belisouth.net>
"JOEL, BILLY" <BILLY JOEL 13@GMAIL.COM>
Wednesday, February 01, 2006 4:31 PM
Fw: COMMISSION MEETING TONIGHT-BE THERE
WHAT AN AH. OF ALL HE SHOULD BE THE LAST PERSON TO WRITE SOMETHING LIKE THIS.
jerry..
-- Original Message -
Subject: Fw: COMMISSION MEETING TONIGHT-BE THERE
---- Original Message -----
From: DAA1318@aol.com
To: Fpm1@aol.com; bjoel@galenetwo; JudgeRD@aol.com; LuzWeinberg@aOl.com
Cc: MarshaIi1231@aol.com; Ii_alien@belisoulh.net; ClaireL77@aol.com; RMSwarte@aol.com;
BernieS96@aol.com; DOCFAB2000@aol.com; DBSUTTIN98@aol.com; dif1900@yahoo.com;
Houtkin@yahoo.com ; HShapley@aol.com ; Marfurshie@aOl.com ; psquire22@msn.com ;
mirskym@bellsouth.net; Debm1027@aol.com; DICKROSS5@aol.com; roser3@yahoocom;
mnrgorr@yahoo.com; LenoreT18@aol.com; LSG1000@aol.com; larry@bardinll.com; Leneepapa@aol.com;
S5rf@aol.com ; cvidueira@huizenga.com ; GregBankhurst@wcicommunities.com ; EBarrocas@aol.com ;
hank@aqua.nel; replicailaly@earthlink.net; sammy@wheremindscreate.com; wfelder@belisouth.net;
Sheslein@belisouth.net; epsI67@belisouth.net; WlDC306@belisouth.net; EdwardDDavis@aol.com;
Jomarahn@belisouth.net ; harveyspear@yahoo.com ; hman305@comcast.net ; JSKLLONE@aol.com ;
SmileK@aol.com ; AJUB26@yahoo.com ; TheSydneyStyle@aol.com ; Caplinscov@aol.com ;
Jeruc03@Bellsouth.nel ; MarleneSlernberg@Yahoo.com ; BarbaraBt2000@aol.com ; Laurie.Wynn@UBS.com ;
Fattamama@aol.com ; Miamibil@aol.com ; HAKALI@aol.com ; PSS502@aol.com ; Molady@belisoulh.net ;
MarieHinderliter@aol.com ; Michael.Hornstein@attnel ; DANYELlA@aol.com ; HMisrahi@Yahoocom ;
CMVdesigns@Yahoo.com; BJoel@GaleNetwork.com; Costanzo@belisouth.net; ScottKranz@Strategica.net;
Domowitz@Belisouth.net; MKart78796@aol.com ; BYoung@ybkglaw.com ; SnavePJ@aol.com ;
RodLWhile@aol.com; JLGarcia1@DadeSchools.nel; BReich@WilliamslslandClub.com; JEB2800@aol.com;
Dorfmanfe@aol.com; ArI4271027@aol.com; rschneider@abramsantoncom; BPS2706@aol.com;
Joelhiliman@aol.com ; RowenaReich@aol.com ; WlMGR3000@aOl.com ; Jeri3000@aol.com ;
dargelo@beliamareassocialion.nel; BETH-ROB@webtv.net
Sent: Wednesday, February 01, 2006 3:52 PM
Subject: Re: COMMISSION MEETING TONIGHT-BE THERE
Billy Joel and Bob Diamond:
We the People of Williams Island collectively say SHAME on Both of you.
Perhaps you should consider resigning from the Aventura city council
and allow representatives who will protect the interests of their constituents take
your place.
David Amowitz
(former supporter and campaign donator)
2/1/2006
-r -
Page 1 of 1
From: Sylvia R Garcia 2 [sylviargarcia2@comcast.net]
Sent: Tuesday, January 31,20069:02 PM
To: bdiamond
Cc: Susan Gottlieb
Subject: Lincoln Pointe building proposal
;<.).-D~
tlM~I~cL
cd~.
Teresa Soroka
Dear Commissioner,
We want to express our opposilion to the Lincoln Pointe proposal for lhe 28-floor, 450-plus residence "solution" 10
their building issues with the City.
1) The area cannot viably absorb the resulting exorbilant traffic volume should lhe developers go
ahead, endangering Williams Island residents' access to emergency services such as medical, fire and police
responses.
2) Issues regarding property rights of the Wiliiams Isiand community cannot be settled between lhe City and the
deveiopers without involvement of the Isiand community.
We urge you to vote against lhis iatest proposal and support adherence to the new planning iimils on new
construction.
Sylvia & Argelio Garcia
2000 Island Blvd, Apt 909
Williams Island,
Aventura, FL
2/1/2006
.lJ 1tft/CIil)
Page 1 of 1
Teresa Soroka
From: Joanne Carr
Sent: Thursday, January 26, 2006 5:07 PM
To: Teresa Soroka
Subject: Lincoln Pointe Waiver
For your records, Sandra Kasindorf, resident at Biscayne Cove, 18151 NE 31" Court, Apartment 1616, Aventura,
is opposed to the waiver due to traffic congestion and emergency access concerns.
Joanne Carr. AICP
Planning Director
City of A ventura
19200 West Country Club Drive
Aventura, FL 33180
(305) 466-8940
1/27/2006
Page 3 of3
since they live here too? As you recall Billy lives in the 2600 building
and Bob lives in the 3000 building.
3 QUESTIONS:
1. Why do Biliy Joel and Bob Diamond intend to vote in favor of such a
lopsided deal that might force us to have our valuable property taken away
from us by the City of Aventura?
2. Why did Bob Diamond and Billy Joel fail to include Williams Island as a
party to this agreement since we are directly impacted and involved in it
since we own the road in question?
3. Why did Billy-Bob fail to inform their const~uents here on the Island
about this unfair deal that they were supporting behind our backs? Had it
not been for Med Village resident, Burton Young, Esq. sounding the alarm
beli and POA President Carlos Vidueira's swift actions to inform residents
and aggressively protect our interests would you have known about this
situation?
It is incumbent upon our Commissioners to answer these reasonable questions
especialiy since they refused to attend last night's meeting with their
neighbors in a friendly and informal setting.
That is why your attendance is SO IMPORTANT.
George Tower
Wiliiams Island Residents Coalition
Thursday, February 02, 2006 America Online: Judge RD
Page 2 on
Forwarded Message:
Subj: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/20064:21:22 A.M. Eastern Standard Time
From: kriya108@comcastnet
To: Sydney@TheSydneyStylecom
Sent from the Internet (Details)
Greetings Islanders:
Those of you who were at the Lincoln Point Town Hali meeting in the 1000
Bldg. last night may have been surprised to hear just how large the
proposed Lincoln Point project may be. An attorney and architect from the
Lincoln Point Developer made a presentation to residents at the request of
POA President Carlos Vidueira.
We were told that the new "smalier version" of the building wili stand up
to 315 feet high and up to 900 feet long. To put this into perspective, a
building of that size would stand as high as the 6000 building (Belia Mare)
and would be longer than the Titanic. (This is not a joke)
I have attached a photo. The yeliow line shows the approximate footprint of
the building (not drawn to scale).
POA Representative Harvey Houtkin surmised that if the property on Williams
Island is worth approximately 1.5 billion doliars then even a 10% loss of
property value due to the loss of views from apartments is equal to 150
million doliars in damages that we may suffer as a result.
Our POA Board unanimously voted to hire an attorney to represent us at the
City Commission meeting. Our POA should be commended for taking quick
action especialiy President Carlos Vidueira.
Biscayne Cove Condominium has already hired Land Use attorney Tucker Gibbs
to represent them.
Unfortunately Biliy-Bob did not show up despite the invitations to the
meeting extended to them by POA President Carlos Vidueira nor did they send
a message to their neighbors attending the meeting nor did they answer the
emails that Islanders, including yours truly, sent to them.
It is imperative that you attend the City of Aventura Commission meeting
tonight (Wed.) at 6 PM at Aventura City Hali. Island shuttle buses will
begin running to City Hali at 5 PM and wili bring residents back home.
The City Commission is scheduled to vote tonight on a deal that the City
made with the Lincoln Point developer without including us as a party to the
deal. Biliy-Bob and the other Commissioners intend on granting an exemption
from the building moratorium to the the developer of Lincoln Point. That
deal includes a stunning provision for the City of Aventura to make
reasonable efforts to convert NE 31st Court into a public road. (this road
currently owned by our POA stretches from 183rd 51. past Biscayne Cove into
Lincoln Point) Part of that road can be seen in the attached photo marked in
red. The process may require the City to seize our road from us (against
our will) through eminent domain which would benefit the developer of the
Lincoln Point property. As you know NE 31st Court, which we paid for and
was included in the $17,000,000 Clubs purchase deal, is considered a very
valuable and highly coveted road since it is the only road going into
Lincoln Point. What could possibly motivate Billy-Bob to act against the
best interests of Islanders that they were elected to represent and protect
Thursday, February 02, 2006 America Online: Judge RD
Page 1 of3
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/20068:34:43 A.M. Eastern Standard Time
From: Joelhillmar
To: RodLWhite, JEB2800, Plwines, MOlrfurshie, REDJOYCEBLUE, mirskym@beliSQuthnel.
JLGarcia@dadeschools.nel, CVidueira@Huizenga.com, Ii_allen@belisouth.nel,
Itabacinic@belisouth.net, houtkin@yahoo.com, alvin.epstein@ubs.com, Abe3000,
alan_frent@yahoo.com, Judge RD, jeruc03@belisouth.net, DOCFAB2000, RowenaReich,
jlevim@yahoocom, larry@bardintLcom, Spbaron, ARGLD, IrvBoren, dcale@rogers.com,
gavetica@belisouthnet, SHANONTIMO, vmanica@tafts-nemo.org, CIFeingold, Lti miami,
szjaffe@yahoo.com, Stanfordk, MarianLevi, ALUBY126, Barb4273, by77@comcastnet,
stanmit2@msn.com, milaricardo@uoLcom.br, ampr@ec-red.com, Reneeloui, leslik@belisoulhnet,
vanessa1m@hotmaiLcom, consultjem@belisouth.net, glshear@alistream.net, ASher41569, Silver
penni, joannesol@belisouth.nel. hsternberg@herbko.com, pappy87@belisouth.nel. DR HUGH,
werner_r@bellsouth.net, HPodolsky, Jakepaulen, RMSwarte, MMeislerM, msilver1@gate.net,
LenoreT18, RSACKS 545, SGRACHLlN, RTas863551, paubie.amenkes@menkes.com, Myriam55,
KHH100741, jross@gbacllc.com, imsa1@webtv.net, HalZeiman1, Gammyg5, Tencaratz,
Tuliorabinovich, WenFab, Arl4271 027, Bubbe4838, Ezg123, DANYELlA, ARYELlA, nskatty
CC: EdwardDDavis
Please see George Towers email and sketch, as weli as my response directly to Bob Diamond and Biliy JoeL
AIi of you are effected by this monstrous project, proposed to be built in our face. I suggest that each and every
one of you direct an email to both Bob and Billy Joel expressing your feelings on the subject.
Their email addresses are:
Bob Diamond....judgerd@aoLcom
Billy JoeL........ BJOEL@galenetworkcom
I give them both the benefit of the doubt, and suggest that they were not properly informed as to the complete
insanity of a project of this scope.
T!!!$ !$ for yoyrQW(! Pe$t ;(!~.t$., $0 I!Vritel
jrhillman
Forwarded Message:
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/20067:36:43 A.M. Eastern Standard Time
From: Joelhillman
To: Judge RD, BJOEL@galenetworkcom
CC: CVidueira@Huizengacom
IF the attached site plan, showing the immense building purported to be the proposed Lincoln Point building is
anywhere near accurate, I cannot understand how you could have supported this project. I cannot, by any
stretch of the imagination, believe that the most vile, and corruptible City Board could condone the construction
of a monster like that anywhere, let alone in the face of the community that put you both in office.
If you persist in approving the action, I for one surely hope that the POA wili make every effort to fight this ung-
dly decision, regardless of the cost to our community.
I ask you, as sensible people, and residents of Wiliiams Island, to vote down the action at tonights meeting. The
project is a pure travesty.
Joel
Thursday, February 02, 2006 America Online: Judge RD
Page I of I
Subj: See Attached
Date: 2/1/20069:33:31 A.M. Eastern Standard Time
From: Abe300r
To: Judge RO, bjoel@galenetwork.com
CC: cvidueira@huizenga.com
Bob & Billy:
For the first time in many months, I must agree with George Tower; I was at the meeting last night and I could
not have summed it up any better. This project should not move forward at this time. I urge you both to
reconsider your position and convey this message to the rest of the commission.
AI Epstein
Thursday, February 02, 2006 America Online; Judge RD
Page 1 of1
Subj: Lincoln Point
Date: 2/1/20069:57:26 A.M. Eastern Standard Time
From: larrybard1@vanoo.c('-
To: iudgerd@aol.com
Dear Bob,
Last night I attended the POA MEETING in the 1000 building to hear from my
elected representatives and their guests from Lincoln Point.
I was hoping that you and Billy Joel would be present to hear what is happening
on Williams Island.....our home I!!!!!
I implore you to continue the moratorium on any further building on our island, or
on adjacent property, where the escape routes, in case of a horrible hurricane
would cause evacuation. And, the evacuation is hampered by too many cars !!!
Last year I had spoken to you about over building, which you informed me that
there was nothing that the commission could do, as it was "grandfathered" in
by previous commissioners. To go ahead with this new building, could be
something of a catastrophe in the near future !!!!
To delay any further building, would make our homes safer 11I11I111I III II II!
Regards,
Larry Bard
Thursday, February 02, 2006 America Online: Judge RD
- "..........-
Page 3 of 3
The City Commission is scheduled to vote tonight on a deal that the City
made with the Lincoln Point developer without including us as a party to the
deal. Billy-Bob and the other Commissioners intend on granting an exemption
from the building moratorium to the the developer of Lincoln Point. That
deal includes a stunning provision for the City of Aventura to make
reasonable efforts to convert NE 31st Court into a public road. (this road
currently owned by our POA stretches from 183rd St. past Biscayne Cove into
Lincoln Point) Part of that road can be seen in the attached photo marked in
red. The process may require the City to seize our road from us (against
our wili) through eminent domain which would benefit the developer of the
Lincoln Point property. As you know NE 31st Court, which we paid for and
was included in the $17,000,000 Clubs purchase deal, is considered a very
valuable and highly coveted road since it is the only road going into
Lincoln Point. What could possibly motivate Billy-Bob to act against the
best interests of Islanders that they were elected to represent and protect
since they live here too? As you recali Biliy lives in the 2600 building
and Bob lives in the 3000 building.
3 QUESTIONS:
1. Why do Billy Joel and Bob Diamond intend to vote in favor of such a
lopsided deal that might force us to have our valuable property taken away
from us by the City of Aventura?
2. Why did Bob Diamond and Billy Joel fail to include Williams Island as a
party to this agreement since we are directly impacted and involved in it
since we own the road in question?
3. Why did Billy-Bob fail to inform their constituents here on the Island
about this unfair deal that they were supporting behind our backs? Had it
not been for Med Village resident, Burton Young, Esq. sounding the alarm
beli and POA President Carlos Vidueira's swift actions to inform residents
and aggressively protect our interests would you have known about this
situation?
It is incumbent upon our Commissioners to answer these reasonable questions
especialiy since they refused to attend last night's meeting with their
neighbors in a friendly and informal setting.
That is why your attendance is SO IMPORTANT.
George Tower
Wiliiams ISland Residents Coalition
Thursday, February 02, 2006 America Online: Judge RD
Page 2 on
CC: CVidueira@Huizenga.com
IF the attached site plan, showing the immense building purported to be the proposed Lincoln Point building is
anywhere near accurate, I cannot understand how you could have supported this project. I cannot, by any
stretch of the imagination, believe that the most vile, and corruptible City Board could condone the construction
of a monster like that anywhere, let alone in the face of the community that put you both in office.
If you persist in approving the action, I for one surely hope that the POA will make every effort to fight this ung-
dly decision, regardless of the cost to our community.
I ask you, as sensible people, and residents of Williams Island, to vote down the action at tonights meeting. The
project is a pure travesty.
Joel
Forwarded Message:
Subj: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/20064:21:22 AM. Eastern Standard Time
From: kriya108@comcast.net
To: Sydney@TheSydneyStyle.com
Sent from the Internet (Details)
Greetings Islanders;
Those of you who were at the Lincoln Point Town Hali meeting in the 1000
Bldg. last night may have been surprised to hear just how large the
proposed Lincoln Point project may be. An attorney and architect from the
Lincoln Point Developer made a presentation to residents at the request of
POA President Carlos Vidueira.
We were told that the new "smalier version" of the building wili stand up
to 315 feet high and up to 900 feet long. To put this into perspective, a
building of that size would stand as high as the 6000 building (Belia Mare)
and would be longer than the Titanic. (This is not a joke)
I have attached a photo. The yeliow line shows the approximate footprint of
the building (not drawn to scale).
POA Representative Harvey Houtkin surmised that if the property on Wiliiams
Island is worth approximately 1.5 billion doliars then even a 10% loss of
property value due to the loss of views from apartments is equal to 150
million doliars in damages that we may suffer as a result.
Our POA Board unanimously voted to hire an attorney to represent us at the
City Commission meeting. Our POA should be commended for taking quick
action especialiy President Carlos Vidueira
Biscayne Cove Condominium has already hired Land Use attorney Tucker Gibbs
to represent them.
Unfortunately Billy-Bob did not show up despite the invitations to the
meeting extended to them by POA President Carlos Vidueira nor did they send
a message to their neighbors attending the meeting nor did they answer the
ernails that Islanders, including yours truly, sent to them.
It is imperative that you attend the City of Aventura Commission meeting
tonight (Wed.) at 6 PM at Aventura City Hall. Island shuttle buses will
begin running to City Hali at 5 PM and will bring residents back home.
Thursday, February 02,2006 America Online; Judge RD
Page 1 of3
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/200611 :03:49 A.M. Eastern Standard Time
From: HalZelman-
To: Judge RD
Hi Bob,
As you know I have lived at w.1. for 17 years and I supported you in ali your endeavers through the years. I
need to know why you are supporting Lincoln Point. When people speak negatively about your vote, I truly try
to support you. I would greatly appreciate if you would e-mail your reasoning to me.
Best Regards
Hal Zelman
apt. 806 E-mail halzelman1@aol.com
Forwarded Message:
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/20068:34:43 A.M. Eastern Standard Time
From: Joelhillman
To: RodLWhile, JEB2800, Plwines, Marfurshie, REDJOYCEBLUE, mirskym@belisouth.net,
JLGarcia@dadeschools.net, CVidueira@Huizenga.com, Ii_alien@belisouth.net,
jtabacinic@bellsouthnet, houtkin@yahoo.com, alvinepstein@ubscom, Abe3000,
alan_frent@yahoo.com, Judge RD, jeruc03@belisouth.net, DOCFAB2000, RowenaReich,
jlevim@yahoo.com, larry@bardintlcom, Spbaron, ARGLD, IrvBoren, dcale@rogerscom,
gavetica@bellsouthnet, SHANONTIMO, vmanica@tafts-nemoorg, CIFeingold, Ltj miami,
szjaffe@yahoo.com, Stanfordk, MarianLevi, ALUBY126, Barb4273, by77@comcast.net,
stanmit2@msn.com, milaricardo@uolcom.br, ampr@ec-red.com, ReneeloUl, leslik@bellsouth.net,
vanessa1 m@hotmailcom, consultjem@belisouth.net, glshear@alistream.net, ASher41569, Silver
penni, joannesol@belisouthnet, hsternberg@herbko.com, pappy87@belisouthnet, DR HUGH,
werner_r@belisouth.net, HPodolsky, Jakepaulen, RMSwarte, MMeisterM, mSllver1@gatenet,
LenoreT18, RSACKS 545, SGRACHLlN, RTas863551, pauble.amenkes@menkescom, Myriam55,
KHH 1 00741, jross@gbacllccom, imsa1@webtv.net, HalZelman1, Gammyg5, Tencaratz,
Tuliorabinovich, WenFab, Arl4271 027, Bubbe4838, Ezg123, DANYELlA, ARYELlA, nskatty
CC: EdwardDDavis
Please see George Towers email and sketch, as weli as my response directly to Bob Diamond and Billy Joel.
AIi of you are effected by this monstrous project, proposed to be built in our face. I suggest that each and every
one of you direct an email to both Bob and Billy Joel expressing your feelings on the subject.
Their email addresses are:
Bob Diamondjudgerd@aolcom
Billy Joel. ... .BJOEL@galenetworkcom
I give them both the benefit of the doubt, and suggest that they were not properly informed as to the complete
insanity of a project of this scope.
T!!1.l$c_for Y-Qur Qwnb'lItlnD.lVlI~1H! w~
jrhillman
Forwarded Message:
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/2006 7:36:43 A.M. Eastern Standard Time
From: Joelhiliman
To: Judge RD, BJOEL@galenetworkcom
Thursday, February 02, 2006 America Online; Judge RD
Page 2 01'2
I ask you, as sensible people, and residents of Wiliiams Island, to vote down the action at tonight's meeting.
The project is a pure travesty.
Joel
> This message is intended only for the use of the addressee and may contain
> Information that is PRIVILEGED and CONFIDENTIAL.
> If you are not the intended recipient, you are hereby notified that any
> Dissemination of this communication is strictly prohibited.
> If you have received this communication in error, please
> Erase ali copies of the message and its attachments and notify us
> Immediately. Thank you.
Thursday, February 02, 2006 America Online: Judge RD
TO.. -_
Page 1 of2
Subj: COMMISSION MEETING TONIGHT -BE THERE
Date: 2/1/20061:00:15 P.M. Eastem Standard Time
From: Fa"..'
To: bjoel@galenetwo, Judge RD, LuzWeinberg
cc: Marshali1231, Ii_alien@belisouthnet, ClaireL77, RMSwarte, BernieS96, DOCFAB2000,
DBSUTTIN98, dif1900@yahoo.com, Houtkin@yahoocom, HShapley, Marfurshie,
psquire22@msn.com, mirskym@bellsouth.net, Debm1027, DICKROSS5, roser3@yahoo.com,
mnrgorr@yahoo.com, LenoreT18, DAA1318, LSG1000, larry@bardintl.com, Leneepapa, S5rf,
cvidueira@huizenga com, GregBankhurst@wcicommunities.com, EBarrocas, hank@aquanet,
replicaitaly@earthlink.net, sammy@wheremindscreate.com, wfelder@belisouth.net.
Shestein@bellsouthnet, epst67@bellsouth.net, WIDC306@bellsouth.net, EdwardDDavls,
Jomarahn@bellsouth.net, harveyspear@yahoo.com, hman305@comcast.net, JSKLLONE, SmileK,
AJUB26@yahoo.com, TheSydneyStyle, Caplinscov, Jeruc03@Belisouth.net.
MarleneSternberg@Yahoo.com, BarbaraBt2000, LaurieWynn@UBS.com, Fattamama, Miamibil,
HAKALI, PSS502, Molady@belisouth.net, MarieHinderliter, MichaeI.Hornstein@att.net, DANYELlA,
HMisrahi@Yahoo.com, CMVdesigns@Yahoo.com, BJoel@GaleNetworkcom,
Costanzo@bellsouth.net, ScottKranz@Strategica.net, Domowitz@Bellsouth.net, MKart78796,
BYoung@ybkglaw.com, SnavePJ, RodLWhite, JLGarcia1@DadeSchoolsnet,
BReich@WiliiamslslandClub.com, JEB2800, Dorfmanfe, Ar14271027,
rschneider@abramsanton.com, BPS2706, Joelhillman, RowenaReich, WlMGR3000, Jeri3000,
dargelo@beliamareassociation.net, BETH-ROB@webtv.net
Billy Joel, Bob Diamond and Luz Weinberg,
I concur with Joel Hillman.
This project is a disgrace, and your total disregard for the residents effected by this monstrosity baffles the
mind.
Be advised that Tonight, if you do not vote down this matter, we will request a continuance from the Aventura
commission on the Lincoln Pointe (LP) matter.
You should be aware that the residents (the voters that elected you to office) of Wiliiams Island
vehemently oppose the LP Project.
My wife, myself and everyone at the meeting last night were appalied at the unveiling of the ~_" story 1.000
foot long "Iron Curtain" calied Lincoln Pointe development that wili throw Williams Island (WI) into mid-<lay
darkness.
We were shocked and dismayed to hear that part of the agreement the Aventura commissioners made with LP
was to offer them property owned by WI and to state in the agreement that if WI did not agree to seli the
property they would condemn the property and take/seize our property via the unconscionable law of eminent
domain.
We stand behind Mayor Susan Gottlieb for standing up for our rights when ali of the other commissioners
turned on her and us.
I reiterate Joel Hiliman's cali for you to vote down the Lincoln Pointe Matter at tonight's meeting
Frank Mengrone
3000 Island Blvd.
Forwarded Message:
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/2006 7:36:43 AM Eastern Standard Time
From: Joelhillman
To: Judge RD, BJOEL@galenetwork.com
CC: CVidueira@Huizenga.com
IF the attached site plan, showing the immense building purported to be the proposed Lincoln Point building is
anywhere near accurate, I cannot understand how you could have supported this project. I cannot, by any
stretch of the imagination, believe that the most vile, and corruptible City Board could condone the construction
of a monster like that anywhere, let alone in the face of the community that put you both in office.
If you persist in approving the action, I for one surely hope that the POA will make every effort to fight this ung-
dly decision, regardless of the cost to our community.
Thursday, February 02, 2006 America Online: Judge RD
Subj: URGENT ALERT - MEETING POSTPONED
Date: 2/1/20063:00:58 P.M. Eastern Standard Time
From: kriya108@comcasln~.
To: thesydneystyle@aoLcom
Greetings Islanders:
I JUST CHECKED WITH THE CITY AND FOUND OUT THAT THE COMMISSIONERS HAVE
CHANGED THE DATE FOR THE MEETING AT CITY HALL.
IT WILL NOT BE HELD TONIGHT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
IT WILL BE HELD TOMORROW NIGHT (THURSDAY) AT 6 PM!!!!!!!!!!!!!!!!!!
YOU MAY ALSO ATTEND THE WILLIAMS ISLAND TOWN HALL MEETING IN THE 1000
BUILDING TONIGHT AT 7 PM.
PLEASE TELL YOUR NEIGHBORS AND ASK YOUR MANAGER TO POST A SIGN IN THE LOBBY
OF EACH BUILDING
George Tower
Williams Island Residents Coalition
Thursday, February 02, 2006 America Online: Judge RD
Page 1 of 1
Page 1 of 1
Subj: Re: COMMISSION MEETING TONIGHT-BE THERE
Date: 211/20063:52:40 P.M. Eastern Standard Time
From: DAA131f
To: Fpm1, bjoel@galenetwo, Judge RD, LuzWeinberg
ce: Marshali1231, Ii_alien@bellsouthnet, ClaireL77, RMSwarte, BernieS96, DOCFAB2000,
DBSUTTIN98, dif1QOO@yahoo.com, Houlkin@yahoo.com, HShapley, Marfurshie,
psquire22@msn.com, mirskym@bellsouth.net, Debm1027, DICKROSS5, roser3@yahoocom,
mnrgorr@yahoo,com, LenoreT18, LSG1000, larry@bardintl.com, Leneepapa, S5rf,
cvidueira@huizenga.com, GregBankhurst@wcicommunities.com, EBarrocas, hank@aqua.net,
replicaitaly@earthlink,net. sammy@wheremindscreate.com, wfelder@belisouth.net.
Shestein@bellsouthnet, epst67@belisouth.nel, WIDC306@belisouthnel, EdwardDDavis,
Jomarahn@belisouthnet, harveyspear@yahoo.com, hman305@comcastnet, JSKLLONE, SmileK,
AJUB26@yahoo,com, TheSydneyStyle, Caplinscov, Jeruc03@Belisouth,net.
MarleneSternberg@Yahoo.com, BarbaraBt2000, Laurie.Wynn@UBS.com, Fattamama, Miamibil,
HAKALI, PSS502, Molady@belisoulh.nel, MarieHinderliter, MichaeLHornstein@alt.nel, DANYELlA,
HMisrahi@Yahoo,com, CMVdesigns@Yahoo.com, BJoel@GaleNetwork.com,
Costanzo@bellsoulh,nel, ScottKranz@Strategica.net, Domowltz@Belisouth.net, MKart78796,
BYoung@ybkglaw.com, SnavePJ, RodLWhile, JLGarcia1@DadeSchools.nel,
BReich@VV1liiamslslandClubcom, JEB2800, Dorfmanfe, Arl4271 027,
rschneider@abramsanton,com, BPS2706, Joelhillman, RowenaReich, WIMGR3000, Jeri3000,
dargelo@beliamareassociation.net, BETH-ROB@webtv.net
Billy Joel and Bob Diamond:
We the People of Williams Island collectively say SHAME on Both of you.
Perhaps you should consider resigning from the Aventura city council
and allow representatives who will protect the interests of their constituents take
your place.
David Arnowltz
(fonner supporter and campaign donator)
Thursday, February 02, 2006 America Online: Judge RD
Page I of I
Subj: Requesting Continuance of Tonights Vote
Date: 2/1/2006 11 :57:05 AM. Eastern Standard Time
From: Sydney@TheSvdnevSlVIe.coc
To: bdiamond@cityofaventura.com, judgeRD@aol.com
Hi Bob:
I'm requesting that you vote to for a continuance on the waivers for the Lincoln Point Project so that the residents
of Williams Island can more fuliy study the issue of the access to our property that we recently purchased for
funds in excess of 17 million doliars.
Thank you,
Sydney!
The Sydney! Style
Direct: 305.613.3010
Fax: 305.466.3020
Sydney@TheSydneyStyle.com
www.TheSydneyStylecom
Confidentiality Notice; This e-mail contains information that is confidential. It is intended for the
exclusive use of the individual or entity to whom it is addressed. If you are not the named recipient,
disclosure or distribution of the information transmitted herewith is strictly prohibited and may be
subject to legal restriction or sanction. Please notify the sender, by return e-mail or telephone, of
any unintended recipients and delete the original message without making any copies.
Thursday, February 02, 2006 America Online: Judge RD
Page 1 ofl
Subj: Requesting Continuance of Tonights Vote
Date: 2/1/2006 11 :57:05 A.M. Eastern Standard Time
From: Sydney@TheSvdnev51V1e.cc-
To: bdlamond@cityofaventura.com, judgeRD@aolcom
Hi Bob:
I'm requesting that you vote to for a continuance on the waivers for the Lincoln Point Project so that the residents
of Williams Island can more fuliy study the issue of the access to our property that we recently purchased for
funds in excess of 17 million do liars.
Thank you,
Sydney!
The Sydney! Style
Direct: 305.613.3010
Fax: 305.466.3020
Syd ney@TheSydneyStyle.com
www.TheSydneyStyle.com
Confidentiality Notice: This e-mail contains information that is confidential. It is intended for the
exclusive use of the individual or entity to whom it is addressed. If you are not the named recipient,
disclosure or distribution of the information transmitted herewith is strictly prohibited and may be
subject to legal restriction or sanction. Please notify the sender, by return e-mail or telephone, of
any unintended recipients and delete the original message without making any copies.
Wednesday, February Ol, 2006 America Online: Judge RD
Page 2 01'2
I ask you, as sensible people, and residents of Wiliiams Island, to vote down the action at lonighl's meeting.
The project is a pure travesty.
Joel
> This message is intended only for the use of the addressee and may contain
> Information that is PRIVILEGED and CONFIDENTIAL.
> If you are not the intended recipient, you are hereby notified that any
> Dissemination of this communication is strictly prohibited.
> If you have received this communication in error, please
> Erase ali copies of the message and its attachments and notify us
> Immediately. Thank you.
Wednesday, February 01, 2006 America Online: Judge RD
Page 1 of2
Subj: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/20061:00:15 P.M. Eastern Standard Time
From: Fo"".
To: bjoel@galenetwo, Judge RD, LuzWeinberg
cc: Marshali1231, li_allen@beIiSQulh.net, ClaireL77, RMSwarte, BernleS96, DOCFAB2000,
DBSUTTIN98, dif1900@yahoo.com, Houtkin@yahoo.com, HShapley, Marfurshie,
psquire22@msn.com, mirskym@balisouth.nal, Dabm1027, DICKROSS5, rosar3@yahoo.com,
mnrgorr@yahoo.com, LenoreT18, DM1318, LSG1000, larry@bardintl.com, Leneepapa, S5rf,
cvidueira@huizenga.com, GregBankhurst@wcicommunities.com, EBarrocas, hank@aQuanet,
raplicailaly@earthlink.net. sammy@wharamindscraala.com, wfaldar@belisouth.net,
Shestein@belisouth.net, epst67@bellsouthnet, WIDC306@belisouth.net, EdwardDDavls,
Jomarahn@bellsouthnet, harveyspear@yahoocom, hman305@comcastnet, JSKLLONE, SmileK,
AJUB26@yahoo.com, TheSydneyStyle, Caplinscov, Jeruc03@Belisouth.net.
MarleneSternberg@Yahoocom, BarbaraBt2000, Laurie.Wynn@UBS.com, Fattamama, Miamlbil,
HAKALI, PSS502, Molady@belisouthnet, MarieHinderliter, MichaeLHornstein@attnat, DANYELlA,
HMisrahi@Yahoo.com, CMVdesigns@Yahoo.com, BJoel@GaleNetworkcom,
Costanzo@belisoulh.nel, ScollKranz@Strategica.net, Domowitz@Bellsouthnet, MKart78796,
BYoung@ybkglaw.com, SnavePJ, RodLWhite, JLGarcla1@DadeSchoolsnet,
BReich@WilliamslslandClub.com, JEB2800, Dorfmanfe, Arl4271 027,
rschneider@abramsanton.com, BPS2706, Joelhillman, RowenaReich, W1MGR3000, Jeri3000,
dargelo@beliamareassociation.net, BETH-ROB@webtv.net
Billy Joel, Bob Diamond and Luz Weinberg,
I concur with Joel Hillman.
This project is a disgrace, and your total disregard for the residents effected by this monstrosity baffles the
mind.
Be advised that Tonight, if you do not vote down this matter, we will request a continuance from the Aventura
commission on the Lincoln Pointe (LP) matter.
You should be aware that the residents (the voters that elected you to office) of Williams Island
vehemently oppose the LP Project.
My wife, myself and everyone at the meeting last night were appalied at the unveiling of the :III story 1.QOO
footJO!ljl"lronC1!I1aIn.. calied Lincoln Pointe development that will throw Williams Island (WI) into mid-day
darkness.
We were shocked and dismayed to hear that part of the agreement the Aventura commissioners made with LP
was to offer them property owned by WI and to state in the agreement that if WI did not agree to seli the
property they would condemn the property and take/seize our property via the unconscionable law of eminent
domain.
We stand behind Mayor Susan Gottlieb for standing up for our rights when ali of the other commissioners
tumed on her and us.
I reiterate Joel Hillman's cali for you to vote down the Lincoln Pointe Matter at tonight's meeting
Frank Mengrone
3000 Island Blvd.
Forwarded Message:
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/20067:36:43 AM Eastem Standard Time
From: Joelhillman
To: Judge RD, BJOEL@galenetworkcom
CC: CVidueira@Huizengacom
IF the attached site plan, showing the immense building purported to be the proposed Lincoln Point building is
anywhere near accurate, I cannot understand how you could have supported this project. I cannot, by any
stretch of the imagination, believe that the most vile, and corruptible City Board could condone the construction
of a monster like that anywhere, let alone in the face of the community that put you both in office.
If you persist in approving the action, I for one surely hope that the POA wili make every effort to fight this ung-
dly decision, regardless of the cost to our community.
Wednesday, February 01, 2006 America Online: Judge RD
Page 2 of2
I ask you, as sensible people, and residents of Williams Island, to vote down the action at tonight's meeting.
The project is a pure travesty.
Joel
> This message is intended only for the use of the addressee and may contain
> Information that is PRIVILEGED and CONFIDENTIAL.
> If you are not the intended recipient, you are hereby notified that any
> Dissemination of this communication is strictly prohibited.
> If you have received this communication in error, please
> Erase ali copies of the message and its attachments and notify us
> Immediately. Thank you.
Wednesday, February 01, 2006 America Online: Judge RD
Page 10f2
Subj: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/2006 1:00:15 P.M. Eastern Standard Time
From: Fa""
To: bjoel@galenetwo, Judge RD, LuzWeinberg
CC: Marshali1231, II_alien@belisouthnet, ClaireL77, RMSwarte, BernieS96, DOCFAB2000,
DBSUTTIN98, dif1900@yahoo.com, Houlkin@yahoo.com, HShapley, Marfurshle,
psquire22@msn.com, mirskym@belisouth.net, Debm1027, DICKROSS5, roser3@yahoo,com,
mnrgorr@yahoo.com, LenoreT18, DM1318, LSG1000, larry@bardintl.com, Leneepapa, S5rf,
cvidueira@huizenga.com, GregBankhurst@wcicommunities.com, EBarrocas, hank@aqua.net,
replicaitaly@earthlinknet, sammy@wheremindscreate,com, wfelder@belisouth.net,
Shestein@bellsouth.net, epst67@bellsouth.net, WI DC306@bellsouth.net, EdwardDDavis,
Jomarahn@bellsouth,net, harveyspear@yahoo,com, hman305@comcastnet, JSKLLONE, SmileK,
AJUB26@yahoo,com, TheSydneyStyle, Caplinscov, Jeruc03@Belisouthnet,
MarleneSternberg@Yahoo,com, BarbaraBt2000, Laurie,VVynn@UBScom, Fatlamama, Miamibil,
HAKALI, PSS502, Molady@belisouth,net, MarieHinderliter, MichaeI.Hornstein@att.net, DANYELlA,
HMisrahi@Yahoo,com, CMVdesigns@Yahoo,com, BJoel@GaleNetworkcom,
Costanzo@bellsouth.net, ScottKranz@Strategica,net, Domowitz@Belisouth.net, MKart78796,
BYoung@ybkglaw.com, SnavePJ, RodLWhite, JLGarcia1@DadeSchools,nel,
BReich@WilliamslslandClub.com, JEB2800, Dorfmanfe, Ar14271027,
rschneider@abramsanton.com, BPS2706, Joelhillman, RowenaRelch, WIMGR3000, Jen3000,
dargelo@beliamareassociation.net, BETH-ROB@weblv.net
Billy Joel, Bob Diamond and Luz Weinberg,
I concur with Joel Hillman.
This project is a disgrace, and your total disregard for the residents effected by this monstrosity baffles the
mind.
Be advised that Tonight, if you do not vote down this matter, we wili request a continuance from the Aventura
commission on the Lincoln Pointe (LP) matter.
You should be aware that the residents (the voters that elected you to office) of Williams Island
vehemently oppose the LP Project.
My wife, myself and everyone at the meeting last night were appalied at the unveiling of the 28 sJQrx..1Jl.QO
foot long "lr~!1_Curtai!l" calied Lincoln Pointe development that will throw Williams Island (WI) into mid-<lay
darkness.
We were shocked and dismayed to hear that part of the agreement the Aventura commissioners made with LP
was to offer them property owned by WI and to state in the agreement that if WI did not agree to seli the
property they would condemn the property and take/seize our property via the unconscionable law of eminent
domain.
We stand behind Mayor Susan Gottlieb for standing up for our rights when ali of the other commissioners
turned on her and us.
I reiterate Joel Hillman's cali for you to vote down the Lincoln Pointe Matter at tonight's meeting
Frank Mengrone
3000 Island Blvd.
Forwarded Message:
Subj: Fwd: COMMISSION MEETING TONIGHT-BE THERE
Date: 2/1/2006 7:36:43 AM Eastern Standard Time
From: JoelhilimBn
To: Judge RD, BJOEL@galenetwork,com
CC: CVidueira@Huizenga,com
IF the attached site plan, showing the immense building purported to be the proposed Lincoln Point building is
anywhere near accurate, I cannot understand how you could have supported this project. I cannot, by any
stretch of the imagination, believe that the most vile, and corruptible City Board could condone the construction
of a monster like that anywhere, let alone in the face of the community that put you both in office.
If you persist in approving the action, I for one surely hope that the POA wili make every effort to fight this ung-
dly decision, regardless of the cost to our community.
Wednesday, February 01, 2006 America Online: Judge RD
Subj: URGENT ALERT - MEETING POSTPONED
Date: 2/1/20063:00:58 P.M. Eastern Standard Time
From: kriya 1 08rQJcomcasI '"
To: IheSydneystyle@aol.com
Greetings Islanders:
I JUST CHECKED WITH THE CITY AND FOUND OUT THAT THE COMMISSIONERS HAVE
CHANGED THE DATE FOR THE MEETING AT CITY HALL.
IT WILL NOT BE HELD TONIGHT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
IT WILL BE HELD TOMORROW NIGHT (THURSDAY) AT 6 PM!!!!I!!!!!!!!!!!!!
YOU MAY ALSO ATTEND THE WILLIAMS ISLAND TOWN HALL MEETING IN THE 1000
BUILDING TONIGHT AT 7 PM.
PLEASE TELL YOUR NEIGHBORS AND ASK YOUR MANAGER TO POST A SIGN IN THE LOBBY
OF EACH BUILDING
George Tower
Williams Island Residents Coalition
Wednesday, February 01, 2006 America Online: Judge RD
Page 1 of 1
bLlbmlltl'c.l..!>'1
"fP1, CA. d ..j
TRANSPORT ANALYSIS PROFESSIONALS, INC.
8701 S.W. 1371h AVENUE' SUITE 210' MIAMI. FL 33183-4498 . TEL 305/385-0777 . FAX 305/385-9997
FAX & MAIL
June 9, 2005
Mr. Thomas Brinkley
Shefaor Development, Inc.
2999 NE 191" Street, Suite 803
A ventura, Florida 33180
RE: Lincoln Pointe
Traffic Impact Review
Updated Response
Dear Mr. Brinkley;
The City of Aventura's traffic consultant, Tinter Associates, hlC. (subconsultant to Craven
Thompson), has requested response comments to their attached May 11th critique ofT AP's February
10,2005 traffic impact statement. TAP was able to clarify our understanding of certain items in Ms.
Danielsen's letter in conversation with her last week and obtain ongoing development activity from
City staff on June 3,'d (see attached fax from Ms. Scarlet Tenen). To facilitate review, the following
responds to each item in the order presented in Ms. Danielsen's review letter. This update
supersedes my May 23nlletter to you.
1. Modified Development Plan
The modified development plan provides an approximate 350 to 400 foot separation along
the common shared private accessway between the proposed Lincoln Pointe garage entrance
and the nearest existing cOlU1ection serving Biscayne Cove immediately north of Lincoln
Pointe. This is ample separation and vastly superior to the relatively short separation that
exists. Additionally. the redevelopment plan will eliminate multiple existing connections
and backout parking along the shared accessway to provide considerably fewer conflicts and
a more effective and efficient means of access.
As you confirmed with me last week, a very minor aligtU11ent adjustment (as suggested by the
City's consultant) will be made to the drive connection linking the north/south accesswayto
the proposed garage main entrance to achieve a more direct and straight connection between
the two. The minor alignment adjustment will be developed during the final design and
construction documentation process. This straighten linkage will be not only easier for those
entering and exiting the garage to negotiate. but the minor alignment adjustment to the
C0lll1ector will also provide a more easily recognized and natural assignment of right of way
for all who traverse all or a pOliion of this ShOji east/west linkage realigned perpendicular to
the garage face.
Planning' Design and Engineering Accident Reconstruction Stots of Florida EB 3766
Mr, Thomas Brinkley
June 9, 2005
Page 2
2. Existing Traffic Conditions
Nonnally, an analysis of existing (and/or future) conditions would use base volumes adjusted
to peak season conditions if the adjustment is necessary (and, as noted in Ms. Danielsen's
con'espondence, there is question whether it would be necessalY), The combination oflikely
daily variations and seasonal variations to data collected in the peak season does not warrant
protracted adjustment of December data on the basis offactors that would be highly suspect
for application to the very localized intersection of NE 31" Court alld Williams Islalld
Boulevard, which has neither alielial chal'acteristics nor extensive road network continuity.
Seasonal adjustment factors for nOlih Dade arterials compiled by FDOT from vohune data
extracted on FDOT alierials show a seasonal factor of 1.00 for counts made 12/12-12/18/04
and a combined peak season factor of 0.974 for that year. (See attached FDOT weekly
factors.) This translates to less than a 3% adjustment (2% if using 2003 FDOT statistics) to
raw data collected by TAP. Given this limited magnitude of adjustment for arterial traffic,
the location of this intersection and the non-arteriai nature of the traffic using the
intersection, a seasonal adjustment does not seem neceSSalY or necessarily applicable.
It is common practice in many South Florida municipalities and counties to incl1,lde seasonal
adjustment factors if they are significant, ,1nd further, for intersection allalyses of principal
alierials with residential collectors, to apply scasonal factors directly to principal arterial
through movements and a factor providing only half the variation for turning movements to
and from the collector roadways. If this practice is applied to the localized intersection of
NE 31" Court and Williams Island Bouleval'd, the adjustment would be less than 1.5%.
For relatively low peak hour intersection tUl1ling movement volumes, this adjustment
amounts to less than 5 vehicles per hour for observed movements of 300 vph or less. All
AM and PM peak hour tuming movement data collected in December were below 300 vph
for allY movement.
Thus, no seasonal adjustment appeal'ed wan'anted to the data collected in December 2004.
No adjustments were made in TAP's original analysis. Nonetheless, to provide a more
conservativ.e analysis and to account for other seasonal abnonnalities in relation to TAP's
December data as well as to take into consideration "n01111al background traffic increases" (in
a geographic area not prone to having unexplained "n01111al" background growth in 8lmual
traffic levels), a composite factor of 5% has been applied in the llpdated analyzes described
under the fOlllih item below, Signalized Intersection Operation.
3. Site Traffic
We concur that our original analysis was intentionally perfonned to represent a "worst case"
overestimation in likely redevelopment traffic, which subseq1.1entlyprovided a "conservative"
analysis offuture conditions.
~..-_._-""--.....T
Mr. Thomas Brillkley
June 9, 2005
Page 3
4. Signalized Intersection Operation
From the initial date ofT AP's project i11Volvement and December 2004 traffic data collection
and analyses, it has always been our understanding that the developers intend to commence
site redevelopment within four to six months from the date of City approval of the pending
application.
As best 1 can recall, City staff were contacted by phone early on to asceliain whether there
were any active construction proj ects nearing completion in the area that would substantially
influence future traffic at the NE 31" COUli and Williams Island Boulevard intersection,
Many were planned and others included renovations. However, an updated list of approved
but not yet built and occupied development projects was recently obtained from the
appropriate City staff member (see attached listing faxed June 31"\1). Four approved residential
projects will affect traffic at the subject intersection.
Traffic was estimated for each of the four approved but not yet fully build out and occupied
projects by using standard ITE procedures m1d assuming full occupancy during future peak
seasons for these luxury condominiums and townl10mes. Traffic estimates for each of the
four development projects and a sunU11ary tabulation of their peak hour traffic are attached.
Traffic for three of the four "other development" projects will be oriented to and from the
east leg of the Williams Island Boulevard and NE 31 st Court intersection. No intemal trip
satisfaction for these new projects within the Williams Islm1d community was assumed. In
the case of the Peninsula Phase 11 development, altemate access routes are available, and to
provide a conservative analysis offuture 'intersection operations (i.e., likely overestimation of
futme traffic), 70% oftbe traffic to be generated by Peninsula Phase 11 at fi.Ill occupancy is
assumed to be oriented to m1d from the north leg of the Williams Islm1d Boulevard and NE
31 sL Avenue intersection.
Traffic for these fom residential projects was convelied to intersection turning movements by
using the relati ve tum percentages found in the existing tuming movement count for the two
primm)' access routes available. For example, new traffic entering Williams Island can have
its primary access as an eastbound through movement or as a southbound left tUlU at the
subject intersection. The resulting peak hom tuming movement traffic volumes for these
approved development projects is shown in the centel' columns of the attached table of
existing and futLlre intersection traftic.
Before analyses ofillture intersection operations were undertaken, a composite 5% increase
to existing tUl11ing movements was applied. This composite factor is believed to amply
compensate for any concems about seasonal variation'(discussed earlier) and "nom1al"
background growtb. This intersection is located within an area not influenced by
"background growth" (otherwise unaccounted for "no1111al" annual increase in traffic levels).
No adjustment appears neceSSal)' in sllch cases, but a 5% composite increase has been
inch.lded.
'--'Y-'T'
-"---, ""--T-'
T
Mr. Thomas Brinkley
June 9, 2005
Page 4
Intersection operations during future AM and PM peak hours were analyzed for two different
conditions: with and without the Lincoln Pointe redevelopment. The future peale hour
turning moVement demands for both evaluation scenarios are shown in various colunIDs of
the same table discussed above. Documentation of the existing turning movements and the
Lincoln Pointe redevelopment traffic increment shown in this attached table were included
with TAP's Febmary submittal.
Level of Service analyses were perfOlmed using HCS software that replicates procedures
described in the latest edition of the TRE Highway Capacity Manual. The f01U. peale h01U'
printouts are attached. For each peak hour, identical signal phasing and signal timing was
assumed in the nlture analyses of "with" and "without" Lincoln Pointe redevelopment. A
summary tabulation of Level of Service results is attached.
Future intersection Level of Service "C" operations are achieved in all cases. All movements
(or lane groups) operate in the acceptable Level of Service "B" to "C" range in both
scenarios. With one very minor exception, the level of service for individual turning
movements (or lane groups) are identical for the peak hour scenalios without Lincoln Pointe
redevelopment traffic and those with Lincoln Pointe redevelopment. The exception is for the
extremely low volume westbound left tum movement in the AM peak hour that shifts from
Level of Service "B" to "C" when the Lincoln Pointe redeVelopment traffic increment is
included. The level of service shift is due to the "without project" traffic condition being at
the 20-second delay cusp between LOS "B" and "C", and a calculated change of 0.1 seconds
in average delay separates the "with" and "without" Lincoh1 Pointe redevelopment scenarios.
In all cases, satisfactory Levels of Service are achieved in these future peak season peak hour
conditions.
5. NE 3151 Com"!
It appears that the City's Clt11"ent interpretation of the definition for that which constitutes a
"private street" versus that which has been a plivate or joint accessway (for many years plioI'
to there being a City of A ventura) is more of a legal interpretation than a traffic engineering
design concem. From a traffic and transportation engineel1ng perspective, what is proposed
as pm"! of the redevelopment plm1 for tbe nortb/soLlth accessway along the east side of this
property will more than adequately accommodate vehicular, pedestrian and fire-rescue
(emeIgency) vehicular needs.
Mr. Thomas Brinkley
lIme 9, 2005
Page 5
We trust the above responses address and clarify each item in the City tTaffic consultant's May 11th
letter regarding the. Lincoln Pointe application.
Very truly yours,
TRANSPORT ANALYSIS PROFES~~ON^2J INC.
~~c'7Z~
David C. Rl1inard, P.E.
Plincipal
DCR/ja/4572
Attachment
cc: Stanley Price, Esq.
Scarlet Tenen
Suzalme Danielsen. P,E.
~y-t 1-01
._0
, .
2.01
Q6:1lpm From-Blllln 3Q8 m 8146 T-m P.DOGIOI\ H6\
.......~
. iI ~\.: Tinter A55ociates, 1IIe. · Tralispon:ation EIl=
)~~ ........ Comolt...;.1 B~d, Bto3ll1'1'1,I.o_dolo, PL ))309' '~l~~HS~'l'.. ~)41""12' """"'.~...,.....,
May 11. 2005
MI. Joanna Carr, AI CF
OIlY 01 Avenwra
19200 West CountJy Clull Oriv.:
Avlllltllra, FlQritla 33180 .
RiO: UNCCI.N POINT!:
TINiER ASSOOIATES. INC. PROJt;:;CT NO. 01...2DS1W
Oear Ms. Cllrr.
A5 ,.qut$ted by :tOur offiCla. and In accordanca wltfl our contrad: with Crewn Thompson and
Asloclat..s, Inc., this Ilrm hall examlnacl a Trafftc: Impaot SMly preplll'e(ll:lY TllInsporl Analysis
?rll1eulonals, Inc. In FebnJary of this ~r. The raport acldreas.. ll'aml>rl!llated Impaell
UJoClilltad With development at' 526 ccndomlnlum units en prop'lf~ currently OCCUplM by the
2ss.unlt LIncoln Polnte rental c:ornl71unlly. 'n1e prcperty prcpolllld for redeVlllopment wllh this
applcatlon Is locatacl south of WllllalNllsland il>lJlevard (N.Eo 1 S3" Slreat) Irnmc:dIIlMIy west on
N.~ 31" Court within rnunlclPIIllimlts of tile City 01 Avantu.... In aCOOrdanoe w!th our ~vlew the
followl/lll c"mmenlll!l~ offered:
NlocliflE,d ReclevCllopm"nt Plan
'. Access to 1I1e propClSed Uncoln Polnte development wm. aocordlns to ti'la ~Ite plan, be
seeomprillhed th/'Q~gh one,. two-way eecus 10Cll1lon servin; the on-slle pandng
liS raga. A clrcultlr drive WIth e pcrte ClOchere. Ii Water f8aUirv. IInd an eddllione1llaragll
access polnl pn:lVlcles a secondary ecoeseloartlon approxlmatltly 240 1eetscUlll at'the
primary glll'lga Ingresllifllgr_ IQI:OItlon. 'T!',. .1Imlna1lcn 01 m~ltlllle exl&tfng Il....EIS$ .
locations and bllCloooUl parking alcng the priVate I'l:lad ehtll"lld wl1h the Slsgayne Cove
rosldenilal development shculd serve to eKmlnate pl21entlll pclntll gf !;Clnlll\:t anti
provide Illr II more efficlenl accesSWllY.
,
. The Appllesnl snould, however, comment on the drlveway orrssl shown on the site plan
at the northem Boc&SI Iocs~on and the rasullll\g mllnlllJVer required jQ enter and exit
the PIlfklng !tarllge from me private rOad.
Exlsllnll TmIlc: CQlIdllicna
- FOrier to analyzin; the turning movemmt dalll collectecl In Ceoemller of last Y8111' the
Applicant should acljU$llhe volumes, If neces,ary, to relied peak saason condltIDn..
T ,;H;:.Q~aQO~
uot~on~~.uo~ u~o~~n
dOT 120 1'0 I::T 0;"1.1
May-Ir-Ol 08:11pm From-Bllzln
101 m SUS
T-SIO p.OOr/OII F-SSI
.
City of AventUI'B
May 11, 2001l
Page 2
Sit. 'rnoffic;:
. A review of Ihe vIp llen'ra~en me\hcdclaQY shellls the Applicant hl!!I pl'Ovlded a
OO~ju'M1live lnalysis in cl/iltllrmlnlnll lldl:lllionel hfflc.related impaell usoclaled wllh
the proposed development.
Sillnalt=ecllnrereec:tloh Operlltioh
. Prior to ~)'llriT19 Pl'Oj~-I1l1ateel tl'amC ont.o lIXiSllnll tramc volumes, the Applicant should
edelr." expected proJecI bulldout of the rrINI dl\llllopment. background groWlli, If any,
anel tra1!ic from approved but unbullt development If eppreprfate,
The Appllgant has sub/lllllea tI 'lllletlvely consl!:l"VIItlVlo sllJdy that showalha lralllo slenll stUdlel.l
cUNllnUy operalu IS! Lavel of Sam;. '0' IInd Is expected to continue to operate within thelia
p3l'llrTl8tSTl upon bulldout of lhll Wnl;Oln ""'Int. .eclevelopmln~ Th.. Applicant s"ovld, howevw.
address the COr'lCllmll ""Pr..snd above prior to I$llU8nca of da plan approval by your slaft.
In previous elisCl.IAlorl$ wllt1 your slBff ccn:c::m ha$ bien expresallld rellltMl to the adequacy of
N.!:. 31" Court conne;tlnll the Unooln Polnta davalClpment = WIlil8ms Island eoul.v~rd. It Is
my underslandlnSl N.e. 31" Court south of W1l1lams IslQnd Boulevard Is a private I'tlad, Seotlon
31-2aa filntt\lll~ 'SUbdl'llalon Design Slandarda' clearly states Itlat pr1118te local Slreets meyonly
be parmlllcel WIthin the City when thll dulan Bnd construction at such streets mllela or el\~S
the minimum slllnd.r<la 8nd spaolflcat!cms as olltllnllCl within the l.PR'a for public 8tnsets,
Sectlon' 31-2.32 further requires the geomilltrlc design of strllD to c:onforrn to Ihe mlnlml.lm
standards eetabllshed by lhe Manual of Un!fcllTn Minimum Standards for,Oaslgn, Constructlon_
1I1'1ll Melnlllnanoe for SlTlKllll ano Highways, prepared by the Florlda Ollpar:tmant at
Trenspolt8llon and A Polley on Oelllgn at UrbBn H1llhWeys and Arterial Streets pr"PlIred by the
Ama~ean ASSOClStion of street Highway and Transpo~~on O\'I!cIal9 (AA.SHiQ). City .taff
andlor the CIty's cllill engln!:"ring oClnsullant .hCluld raview 11111 site plal'l for OClnforrnancl to
these mnderdli If deemed IIPpUc:able. ..'
The above slzrlsments summllril::e ellr flndlnllB rel1lllYll lQ 111' request fOr Site Plan approval of
lh. proposed r'deVIIlopment. Aa alWays, should you have CluestiOllll rellllrd1r1i our review
plaaao do not ha.llatB 10 ccntBd mt directly.
very tflll)' yoU,.,
d-:'8'~ ~
J. Suzanne Ollnll:llsen, P.E,
Stlnlor Pro.l9c:t Engineer
JSO:fml
WIZlII:Il1D1I1bI..:lQl'wIl1.;a.!'....'K
T"mt.r Assoclaie5, IDe. t Ttansponatloll Enilrlem
~.d
T gllj,QNIQO~
uot~on~~~uo~ u~o~dn
dOT ':/0 QO llT ~"I.l
Jun 03 05 08:54a
p.l
City of Aventura
Community Development Department
19200 West Country Club Drive
Aventura, FL 33180
Telephone: (305) 466-S940
Fax; (305) 466-3277
Fax
To; Dave Rynard
From: Scarlet Tensn
Fax:
305-365-9997
Pages: 4 Inc. cover page
Date: June 3, 2005
Phone:
Re: Lincoln Polnte
o Urgent X !'or Review Cl PI_ Comm_ Cl PI.... Reply
Cl P_ Recycle
. Comm.nts: Forwarding a list of current development projects within
Aventura. This list contains more Information than you may need
for Uncoln PoInte, however, you may ftnd it us.,.,1 for other traffic
studies within our City.
Thank you.
.1111"'\ n~ n~ nR! ~4..
I. Residential Development:
Name & Address
Uptown Marina Lofts
3025 NE 188 Street
The Atrium at AVCDtura
3131 NE 188 Street
Artech Residences
3020 NE 188 Street
Eastside at A ventura
3000 NE 188 Street
The Venture
NE 29 Avenue at
NE 187 Street
3030 at Aventura
3030 NE 188 Street
Terzetto
NE 28 Court at
NE 185 Street
Alaqua
3001 NE 185 Street
Development Projects
City of Aventura
Develooer
Investura LLC
Claudio Stivelman
305-935-5050
Venaventura LLC
Len Edelman
954-614-0264
InvesturaLLC
as above
Venaventura LLC
as above
The Related Group
John Chappalear
305-460-9900
3030 Associates Ltd.
c/o Stan Price (attorney)
305-350-2374
Merco Group
Homero Muerelo
305-409-3645
GDC
Mike Mulhall
407-478-7600
p."
Tvoe/Status of Development
II story condominium
216 units
under construction
II story condominium
192 units
plan approved
7 story condominium
25 I units
plan approved
7 story condominium
39 units
under construction
7 story and II story
condominium buildings
500 units
under construction
7 story condominium
45 units
plan approved
North parcel: 17 to 19 story
condominium with 205 units
South parcel: 62 3-story
Townhomes and 13 story
condominium loft with 138
units - plan approved
4 - 7 story condominium
193 units
under construction
- ----y-....T--- --..'---""1" ,.---y---
.
.1Ij,., n~ n~ n~, ~4..
The Pare at Turnberry Isle
19400 Turnberry Way
Turnberry Village
19000 & 20000 East
Country Club Drive
A ventura Marina
Hidden Bay Phase II
NE 190 Street
Minto at Williams Island
4100 Island Boulevard
The Hamptons South
20201 East Country
Club Drive
The Peninsula Phase II
3251 NE 183 Street
Bella Mare
6000 Island Boulevard
Villa Flora
1500 Island Boulevard
Cabi Developers
305-466-1810
Tumberry Associates
305-937-6200
The Related Group
as above
Minto Developers
Craig Unger
954-978-5342
Boca Developers
Brian Street
954-418-0208
Boca Developers
as above
WCI
Jim Klecker
305-936-0936
Vintage Homes
Ken Weitz
561-496-7899
IT. Commercial Develonment
Name & Address
Aventura Hospital
20900 Biscayne Boulevard
Deve/oDer
A ventura Hospital
David Carbone, CEO
305-682-7100
p,~
21 story condominium
111 units
under construction
14 story condominium
410 units
under construction
12-19 story condominium
126 units
25-32 story condominium
252 units
under construction
24 story condominium
70 units
plan approved
25 story condominium
250 units
under constructton
29 story condominium
220 units
plan approved
30 story condominium
210 units
under construction
16 3-story townhomes
under construction
TYDelSta/us of DevelaDmen/
9 story, 293,790 sq ft wing
addition to existing hospital
Plus separate 5 story, 103,000
sq ft office building with 6
level parking garage - under
construction
.111,., n~ n~ nR! ~~:a
".4
Harbour Centre A ventura Int. Business 8600 sq ft retsil building
18850 NE 29 Avenue Centre Ltd. under construction
Stan Price (attorney)
305-350-2374
A ventura Corporate Center ACClGP Development 6 story, 56,800 sq ft
20801-20803 Biscayne Ltd. Office building with
Boulevard Liliana Ribero attached 5 story parking
305-891-7987 garage - plan approved
One A ventura Executive G & D A ventura LL 10 story, 127,000 sq. ft.
Centre Avi Weintraub office building with
NE 30 A venue between 305-557-9398 7 level parking garage
plan approved
HochsteinlKane Medical H & K Development LLLP 10 story, 56,800 sq. ft.
Building Eric Kane medical office building
954-270-2241 plan approved
Gateway Office Center Gary Cohen 4 story, 35,650 sq. ft.
NE 185 Street 305-935-9206 office building
under construe/ion
March, 2005
Prill1 Date: May/1712005 Florida Department of Transportation
Transportation Statistics Offioe
2004 Peak Season Factor Cateaor)' Report
MIAMI-DADE NORTH MOO' . 0,~7
Catelory: 8700 . ~ 1!!!!!. ~ .~
1 01/01/2004 - 01/03/2004 1.00 1.03
2 01/04/2004 - 01/10/2004 1.00 1.03
3 01/11/2004 - 01/17/2004 0,99 1.02
4 01/18/2004 - 01/24/2004 0,99 1.02
5 01/25/2004 . 01/31/2004 0.99 1.02
. 6 02/01/2004.02/07/2004 0.98 1.01
. 7 02/08/2004.02/14/2004 0,98 1.01
. 8 02/15/2004 - 02/21/2004 0,97 1.00
. 9 02/22/2004 - 02/28/2004 0.97 1.00
. 10 02/29/2004 - 03/06/2004 0,97 1.00
. 11 03/07/2004.03/13/2004 0,97 1.00
. 12 03/14/2004" 03/20/2004 0.96 0,99
. 13 03/21/2004 - 03/27/2004 0.97 1.00
. 14 . 03/2812004 - 04/03/2004 0,97 1.00
. 15 04/04/2004 - 04/10/2004 0.98 1.01
. 16 04/1112004 - 04/17/2004 0.98 1.01
. 17 04/1812004 . 04/24/2004 0.98 1.01
. 18 04/25/2004.05/01/2004 0.98 1.01
19 05/02/2004 . 05/08/2004 0.99 1.02
20 05/09/2004.05/15/2004 0.99 1.02
21 05/16/2004 - OS/22/2004 0.99 1.02
22 OS/23/2004 . OS/29/2004 0,99 1.02
23 05/30/2004 - 06/05/2004 0,99 1.02
24 06/06/2004 . 06/12/2004 1.00 1.03
25 06/13/2004 - 06/19/2004 1.00 1.03
26 06/20/2004 - 06/26/2004 1.01 1.04
27 06/27/2004 - 07/03/2004 1.02 1.05
28 07/0412004 - 07/10/2004 1.03 1.06
29 07/11/2004.07/17/2004 1.04 1.07
30 07/18/2004 - 07/24/2004 1.04 1.07
31 07/25/2004 - 07/31/2004 1.03 1.06
32 08/01/2004 - 08/07/2004 1.03 1.06
33 08/08/2004 - 08/14/2004 1.02 1.05
34 08/15/2004 - 08/21/2004 1.02 1.05
35 08/22/2004.08/28/2004 1.03 1.06
36 08/29/2004 . 09/04/2004 1.04 1.07
31 09/05/2004 - 09/11/2004 1.05 1.08
38 09/12/2004.09/18/2004 1.06 1.09
39 09/19/2004 - 09/25/2004 1.05 1.08
40 09/26/2004 . 10/02/2004 1.03 1.06
41 10/03/2004 -10/09/2004 1.01 1.04
42 10/10/2004 -10/16/2004 1.00 1.03
43 10/17/2004.10/23/2004 1.00 1.03
44 10/24/2004 - 10/30/2004 1.00 1.03
45 10/31/2004 . 11/06/2004 1.01 1.04
46 11/07/2004 - 11/13/2004 1.01 1.04
47 11/14/2004 - 11/20/2004 1.01 1.04
48 1l!21/2004.11/27/2004 1.01 1.04
49 11/28/2004 - 12/04/2004 1.01 1.04
SO 12/05/2004 - 12/11/2004 1.00 1.03
51 12/12/2004 - 12/18/2004 1.00 1.03
52 12119/2004 - 12/25/2004 1.00 1.03
53 12/26/2004. 12/3112004 0.99 1.02
Note: "." indicates peak season week
Page
. Print Date: luM/2112004 Florida Oepartmcnt ofTransportlltion
Transportation Statistics Omce'
Z003 Peak Season Factor Categ~ry Report
MIAMI-DADIt NORTH MOCF . 0.99
Cateaol')'l 8700 JY.!!!i. ~ SF ~
1 01/01/2003 .01/04/2003 1.01 1.02
2 0110512003.0111112003 1.01 1.02
3 0111212003,01118/2003 1.02 1.03
4 01/19/2003.01125/2003 1.01 1.02
5 01/26/2003 - 02/0112003 1.00 1.01
6 02/02/2003 . 02/0812003 0,99 1.00
. 7 02/09/2003 .02/15/2003 0.98 0,99
. 8 02/16/2003 . 02122/2003 0,99 1.00
. 9 02/23/2003 . 03/01/2003 0.99 1.00.
. 10 03/02/2003 . 03/08/2003 0,99 1.00
. II 03/09/2003 . 03/15/2003 1.00 1.01
. 12 03/16/2003 . 03/22/2003 0,99 1.00
. 13 03/2312003 . 03/2912003 0,99 1.00
. 14 03130/2003 . 04/05/2003 0.99 1.00
. 15 04/06/2003 .04112/2003 0.99 1.00
. 16 04/13/2003 .04/1912003 0.99 1.00
. 17 04/20/2003 . 04/26/2003 0.99 1.00
. 18 04/27/2003.05/03/2003 0,99 1.00
. 19 05/04/2003 .05/10/2003 0.99 1.00
20 05/11/2003 .05/17/2003 0.99 1.00
21 05/18/2003 . OS/24/2003 0.99 1.00
22 OS/25/2003 . 05131/2003 0,99 1.00
23 06/01/2003.06/07/2003 0.99 1.00
24 06/08/2003 . 06/14/2003 1.00 1.01
25 06115/2003 . 06/21/2003 1.00 1.01
26 06/22/2003 . 06/28/2003 1.00 1.01
27 06/29/2003 ; 07/05/2003 1.00 1.01
28 07/06/2003.07/12/2003 1.01 1.02
29 07/13/2003.07/19/2003 1.01 1.02
30 07/20/2003.07/26/2003 1.01 1.02
31 07/27/2003.08/0212003 1.02 1.03
32 08/03/2003 . 08/09/2003 1.02 1.03
33 08/10/2003.08/16/2003 1.02 1.03
34 08/17/2003 . 08/23/2003 1.02 1.03
35 08/24/2003 . 08130/2003 1.02 1.03
36 08/31/2003 . 09/06/2003 1.02 1.03
37 09/07/2003 . 09/13/200~ 1.01 1.02
38 09/14/2003 . 09/20/2003 1.01 1.02
39 09/21/2003.09/27/2003 1.01 1.02
40 09/28/2003. 10/04/2003 1.01 1.02
41 10/05/2003.10/11/2003 1.01 1.02
42 10/12/2003.10/18/2003 1.00 1.01
43 10/19/2003 . 10/25/2003 1.00 1.01
44 10/26/2003 . 11101/2003 1.01 1.02
45 11/02/2003 . 11/08/2003 1.01 1.02
46 11/09/2003. 11/15/2003 1.01 1.02
47 11/16/2003 . 11/22/2003 1.01 1.02
48 11/23/2003. 11/29/2003 1.01 1.02
49 11/30/2003 . 12/06/2003 1.01 1.02
50 12/07/2003.12/13/2003 1.01 1.02
51 12/14/2003.12/20/2003 1.01 1.02
52 12/21/2003.12/27/2003 1.01 1.02
53 12128/2003.12/31/2003 1.02 1.03
Nete: "." Indicates pcsk 'OI...n week
Page
Bella Mare - 6000 Island Blvd
Summary of Trip Generation Calculation
For 210 Occupied Dwelling Units of Luxury Residential Condo / Townhouse
June 07, 2005
Average
Rate
Standard
Deviation
Adjustment
Factor
Driveway
Volume
Avg. Weekday 2-Way Volume
7-9 AM Peak Hour Enter
7-9 AM Peak Hour Exit
7-9 AM Peak Hour Total
4-6 PM Peak Hour Enter
4-6 PM Peak Hour Exit
4-6 PM Peak Hour Total
AM Pk Hr, Generator! Enter
AM Pk Hr, Generator, Exit
AM Pk Hr, Generator, Total
PM Pk Hr, Generator, Enter
PM Pk Hr, Generator, Exit
PM Pk Hr, Generator, Total
Saturday 2-Way Volume
Saturday Peak Hour Enter
Saturday Peak Hour Exit
Saturday Peak Hour Total
Sunday 2-Way Volume
Sunday Peak Hour Enter
Sunday Peak Hour Exit
Sunday Peak Hour Total
0.00
0.11
0.37
0.48
0.42
0.24
0.66
0.22
0.46
0.68
0.45
0.30
0.75
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
o
23
77
100
87
51
138
46
97
143
95
63
158
o
o
o
o
o
o
o
o
Note: A zero indicates no data available.
The above rates were calculated from these equations:
24 - Hr. 2-Way Volume: 0, R^2 = 0
7-9 AM Peak Hr. Total: LN(T) = .76LN(X) + .54
R^2 0.93 , 0.23 Enter I 0.77 Exit
4-6 PM Peak Hr. Total: T = .78(X) + -25.38
R^2 0.99 0.63 Enter, 0.37 Exit
AM Gen Pk Hr. Total: T = .71(X) + -6.31
R^2 0.98 , 0.32 Enter, 0.68 Exit
PM Gen Pk Hr. Total: LN(T) = 1. 22LN (X) + -1.46
R^2 = 0.98 , 0.6 Enter I 0.4 Exit
Sat. 2-Way Volume: 0, R^2 0
Sat. Pk Hr. Total: 0
R^2 = 0 , 0 Enter, 0 Exit
Sun. 2-Way Volume: 0, R^2 0
Sun. Pk Hr. Total: 0
R^2 = 0 , 0 Enter I 0 Exit
Source: Institute of Transportation Engineers
Trip Generation, 7th Edition, 2003.
TRIP GENERATION BY MICROTRANS
- _.....- T
- .-- "--r
...~.._..
Minto at Williams Island - 4100 Island Blvd
Summary of Trip Generation Calculation
For 70 Occupied Dwelling Units of Luxury Residential Condo / Townhouse
June 07, 2005
Avg. Weekday 2-Way Volume
7-9 AM Peak Hour Enter
7-9 AM Peak Hour Exit
7-9 AM Peak Hour Total
4-6 PM Peak Hour Enter
4-6 PM Peak Hour Exit
4-6 PM Peak Hour Total
AM Pk Hr, Generator, Enter
AM Pk Hr, Generator, Exit
AM Pk Hr, Generator, Total
PM Pk Hr, Generator, Enter
PM Pk Hr, Generator, Exit
PM Pk Hr, Generator, Total
Saturday 2-Way Volume
Saturday Peak Hour Enter
Saturday Peak Hour Exit
Saturday Peak Hour Total
Sunday 2-Way Volume
Sunday Peak Hour Enter
Sunday Peak Hour Exit
Sunday Peak Hour Total
Average
Rate
Standard
Deviation
Adjustment
Factor
Driveway
Volume
0.00
0.14
0.48
0.62
0.26
0.15
0.42
0.20
0.42
0.62
0.35
0.24
0.59
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
Note: A zero indicates no data available.
The above rates were calculated from these equations:
24 - Hr. 2-Way Volume: 0, R^2 ~ 0
7-9 AM Peak Hr. Total: LN(T) = .76LN(X) + .54
R^2 0.93 0.23 Enter, 0.77 Exit
4-6 PM Peak Hr. Total: T ~ .78(X) + -25.38
R^2 0.99 , 0.63 Enter, 0.37 Exit
AM Gen Pk Hr. Total: T = . 71 (X) + -6.31
R^2 0.98 , 0.32 Enter 1 0.68 Exit
PM Gen Pk Hr. Total: LN (T) ~ 1. 22LN (X) + -1.46
R^2 = 0.98 , 0.6 Enter, 0.4 Exit
Sat. 2-Way Volume: 0, R^2 0
Sat. Pk Hr. Total: 0
R^2 = 0 , 0 Enter, 0 Exit
Sun. 2-Way Volume: 0, R^2 0
Sun. Pk Hr. Total: 0
R^2 = 0 , 0 Enter, 0 Exit
o
10
33
43
18
11
29
14
30
43
25
17
41
o
o
o
o
o
o
o
o
Source: Institute of Transportation Engineers
Trip Generation, 7th Edition, 2003.
TRIP GENERATION BY MICROTRANS
- -y-- T
T
..,. T'"
Villa Flora - 1500 Island Blvd
Summary of Trip Generation Calculation
For 16 Occupied Dwelling Units of Luxury Residential Condo / Townhouse
June 07, 2005
Average
Rate
Standard
Deviation
Adjustment
Factor
Driveway
Volume
Avg. Weekday 2-Way Volume
7-9 AM Peak Hour Enter
7-9 AM Peak Hour Exit
7-9 AM Peak Hour Total
4-6 PM Peak Hour Enter
4-6 PM Peak Hour Exit
4-6 PM Peak Hour Total
AM Pk Hr, Generator, Enter
AM Pk Hr, Generator, Exit
AM Pk Hr, Generator, Total
PM Pk Hr, Generator, Enter
PM Pk Hr, Generator, Exit
PM Pk Hr, Generator, Total
Saturday 2-Way Volume
Saturday Peak Hour Enter
Saturday Peak Hour Exit
Saturday Peak Hour Total
Sunday 2-Way Volume
Sunday Peak Hour Enter
Sunday Peak Hour Exit
Sunday Peak Hour Total
0.00
0.13
0.43
0.56
0.35
0.20
0.55
0.21
0.44
0.65
0.39
0.26
0.65
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.75
0.00
0.00
0.74
0.00
0.00
O.BI
0.00
0.00
O. BI
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
o
2
7
9
6
3
9
3
7
10
6
4
10
o
o
o
o
o
o
o
o
Note: A zero indicates no data available.
Source: Institute of Transportation Engineers
Trip Generation, 7th Edition, 2003.
TRIP GENERATION BY MICROTRANS
-"---"'-.-..'T
The Peninsula Phase II - 3251 NE 183 St
Summary of Trip Generation Calculation
For 220 Occupied Dwelling Units of Luxury Residential Condo! Townhouse
June 07, 2005
Avg. Weekday 2-Way Volume
7-9 AM Peak Hour Enter
7-9 AM Peak Hour Exit
7-9 AM Peak Hour Total
4-6 PM Peak Hour Enter
4-6 PM Peak Hour Exit
4-6 PM Peak Hour Total
AM Pk Hr, Generator, Enter
AM Pk Hrf Generator, Exit
AM Pk Hr, Generator, Total
PM Pk Hr, Generator, Enter
PM Pk Hr, Generator, Exit
PM Pk Hr, Generator, Total
Saturday 2-Way Volume
Saturday Peak Hour Enter
Saturday Peak Hour Exit
Saturday Peak Hour Total
Sunday 2-Way Volume
Sunday Peak Hour Enter
Sunday Peak Hour Exit
Sunday Peak Hour Total
Average Standard Adjustment Driveway
Rate Deviation Factor Volume
0.00
0.11
0.36
0.47
0.42
0.25
0.66
0.22
0.46
0.68
0.46
0.30
0.76
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1.00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
1. 00
Note: A zero indicates no data available.
The above rates were calculated from these equations:
24-Hr. 2-Way Volume: 0, R^2 ~ 0
7-9 AM Peak Hr. Total: LN(T) ~ .76LN(X) + .54
R^2 0.93 0.23 Enter, 0.77 Exit
4-6 PM Peak Hr. Total: T = .78 (X) + -25.38
R^2 0.99 , 0.63 Enter, 0.37 Exit
AM Gen Pk Hr. Total: T = .71 (X) + -6.31
R^2 0.98 , 0.32 Enter, 0.68 Exit
PM Gen Pk Hr. Total: LN(T) = 1.22LN(X) + -1.46
R^2 ~ 0.98 , 0.6 Enter, 0.4 Exit
Sat. 2-Way Volume: 0, R^2 0
Sat. Pk Hr. Total: 0
R^2 = 0 , 0 Enter, 0 Exit
Sun. 2-Way Volume: 0, R^2 0
Sun. Pk Hr. Total: 0
R^2 ~ 0 , 0 Enter, 0 Exit
o
24
80
103
92
54
146
48
102
150
lOa
67
167
o
o
o
o
o
o
o
o
Source: Institute of Transportation Engineers
Trip Generation, 7th Edition, 2003.
TRIP GENERATION BY MICROTRANS
-..-..........-y---
Other Development Traffic
Potentially Affecting NE 31st Ct & Williams Is. Intersection
Approved or Under Construction (Not Yet Occupied)
Peak Hour Volume
Development Direction AM PM
In 23 87
Belia Marc Out 77 21
Total 100 138
Minto at In 10 18
Williams Island Out 33 .11
Total 43 29
In 2 6
Villa Flora Out Z ~
Total 9 9
Subtotal In 35 111
(to/from Oul 117 65
east leg) Total 152 176
Peninsula"
Phase II
(to/fm north leg)
In
Out
Total
23
80
103
92
54
146
Other
Deveiopment
Total
In
Out
Total
58
197
255
203
119
322
" Approximately 70% of volume indicated estimated to affect this
intersection; 30% project traffic estimated to use alternate route
to/from north and east of project entrance on NE 31st Avenue.
70% assigned as turning movements at Wm. Is Blvd. to/from north leg.
AIi other development volumes above assigned 100% to/from east leg
- ----Y T
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- . SHORT REPORT
General Information Site Information
Intersection NE 31 CI & Williams Is.
II.nalyst DCR Blvd.
Agency or Co. Transport Analysis Area Type All other areas
Date Performed DB/DB/OS Jurisdiction A ventura / Miami-Dade
ime Period AM Peak Hour County
Analvsis Year Future without Project
Volume and Timinlllnput
EB WB NB SB
LT TH RT LT TH RT LT TH RT LT TH RT
Num. of Lanes 1 1 1 1 1 1 0 1 0 1 1 0
Lane group L T R L T R LTR L TR
Volume (vch) 77 335 53 4 342 121 163 45 1 87 16 132
% Heavy veh 0 0 0 0 0 0 0 0 0 0 0 0
PHF 0.83 0.83 0.83 0.92 0.92 0.92 0.76 0.76 0.76 0.87 0.87 0.87
Actuated (P/Al P P P P P P P P P P P P
Startup lost time 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
Ext. eft. oreen 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
~rrival type 3 3 3 3 3 3 3 3 3
Unit Extension 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0
Ped/Bike/RTOR Volume 0 6 0 31 0 0 0 77
Lane Width 12.0 12.0 12.0 12.0 12.0 12.0 12.0 12.0 12.0
Parkin g/Grade/P arking N 0 N N 0 N N 0 N N 0 N
Parking/hr
Bus stops/hr 0 0 0 0 0 0 0 0 0
Unit Extension 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0
Phasino EB Only EW Perm 03 04 NS Perm 06 07 08
iming G - 8.0 G - 37.0 G- G- G - 42.0 G- G= G-
Y - 3 Y - 5 Y- Y= Y= 5 Y= Y= Y=
Duration of Analysis (hrs) - 0.25 :;vcle Lenoth C - 100.0
Lane Group Capacity, Control Delay, and LOS Determination
EB WB NB SB
o.dj. fiow rale 93 404 57 4 372 98 274 100 81
Lane group cap. 386 912 775 369 703 598 572 501 705
v/c ratio 0.24 0.44 0.07 0.01 0.53 0.16 0.48 0.20 0.11
Green ratio 0.48 0.48 0.48 0.37 0.37 0.37 0.42 0.42 0.42
Unif. delay d1 15.7 17.2 14.0 19.9 24.7 21.1 21.1 18.4 17.7
Delay factor k 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50
Increm. delay d2 1.5 1.6 0.2 0.1 2.8 0.6 2.9 0.9 0.3
PF factor 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000
Control delay 17.2 18.7 14.2 20.0 27.5 21.7 23.9 19.3 18.0
Lane group LOS B B B B C C C B B
f\pprch. delay 18.0 26.3 23.9 18.7
f\pproach LOS B C C B
Intersec. delay 21.8 Intersection LOS C
HCS2000™
Copyright 0 2000 University of Florida, All Rights Reserved
Version4.le
-------
.' . . SHORT REPORT
Generallnformation Site Information
I nterseetion NE 31 Ct & Williams Is.
Analyst DCR Blvd.
~gency or Co. Transport Analysis ~rea Type All other areas
Date Performed 06/06/05 Jurisdiction Aventura I Miami-Dade
"'ime Period AM Peak Hour County
lA.nalvsis Year Future with ProJect
Volume and Timino InDut
EB WB NB SB
LT TH RT LT TH RT LT TH RT LT TH RT
Num. of Lanes 1 1 1 1 1 1 0 1 0 1 1 0
Lane group L T R L T R LTR L TR
~olume (voh) 77 335 82 6 342 121 250 69 2 87 25 132
% Heavv veh 0 0 0 0 0 0 0 0 0 0 0 0
PHF 0.83 0.83 0.83 0.92 0.92 0.92 0.76 0.76 0.76 0.87 0.87 0.87
!Actuated (PIA) P P P P P P P P P P P P
StartuD lost time 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
Ext. eft. oreen 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
!ArrivaltvDe 3 3 3 3 3 3 3 3 3
Unit Extension 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0
Ped/Bike/RTOR Volume 0 9 0 31 0 0 0 77
Lane Width 12.0 12.0 12.0 12.0 12.0 12.0 12.0 12.0 12.0
P a rking/G rade/Parki ng N 0 N N 0 N N 0 N N 0 N
Parking/hr
Bus stops/hr 0 0 0 0 0 0 0 0 0
Unit Extension 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0
Phasina EB Ontv EW Perm 03 04 NS Perm 06 07 08
G - 8.0 G - 37.0 G- G= G = 42.0 G- G- G=
Imlng y - 3 y= 5 y- y- y= 5 y- y- y-
Duration of Analvsis Ihrs\ - 0.25 tveie Lenoth C - 100.0
Lane Grouo Caoacitv. Control Delav. and LOS Determination
EB WB NB SB
Adj. flow rate 93 404 88 7 372 98 423 100 92
Lane group cap. 386 912 775 369 703 598 559 477 716
vie ratio 0.24 0.44 0.11 0.02 0.53 0.16 0.76 0.21 0.13
Green ratio 0.48 0.48 0.48 0.37 0.37 0.37 0.42 0.42 0.42
Unif. delay d1 15.7 17.2 14.3 20.0 24.7 21.1 24.7 18.4 17.8
Delay factor k 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50
Increm. delay d2 1.5 1.6 0.3 0.1 2.8 0.6 9.2 1.0 0.4
PF factor 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000
Control delay 17.2 18.7 14.6 20.1 27.5 21.7 33.9 19.4 18.1
Lane group LOS B B B C C C C B B
~pprch. deiay 17.9 26.2 33.9 18.8
lA-pproach LOS B C C B
Intersec. deiay 24.4 Intersection LOS C
HCS2000™
Copyright 0 2000 University of Florida, All Rights Reserved
Version 4.1e
-..... ,.
T "-"T'
. . " SHORT REPORT
Generallnformation Site Information
Intersection NE 31 Ct & Williams Is.
Co.nalyst DCR Blvd.
Agency Dr CD. Transport Analysis Area Type All other areas
Date Performed 06106/05 urisdiclion A ventura / Miami-Dade
ime Period PM Peak Hour County
"nalvsis Year Future without Proiect
Volume and Timino Inout
EB WB NB SB
LT TH RT LT TH RT LT TH RT LT TH RT
Num. of Lanes 1 1 1 1 1 1 0 1 0 1 1 0
Lane group L T R L T R LTR L TR
Volume (voh) 178 292 106 6 354 115 80 29 7 205 61 127
% Heavv veh 0 0 0 0 0 0 0 0 0 0 0 0
PHF 0.93 0.93 0.93 0.92 0.92 0.92 0.79 0.79 0.79 0.76 0.76 0.76
Actuated7P/A1 P P P P P P P P P P P P
Startuolost time 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
Ext. eff~reen 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
Arrival tvoe 3 3 3 3 3 3 3 3 3
Unit Extension 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0
Ped/Bike/RTOR Volume 0 16 0 22 0 1 0 62
Lane Width 12.0 12.0 12.0 12.0 12.0 12.0 12.0 12.0 12.0
Pa rking/Grade/P arki ng N 0 N N 0 N N 0 N N 0 N
Parking/hr
Bus stops/hr 0 0 0 0 0 0 0 0 . 0
Unit Extension 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0
Phasino EB Onlv EW Perm 03 04 NS Perm 06 07 08
Timing G - 10.0 G - 37.0 G- G- G = 40.0 G- G- G-
y = 3 Y - 5 y- y= Y - 5 y= y- y=
Duration of Analvsis 'hrs' - 0.25 Cvcle Lenath C 100.0
Lane GrouD CaDacitv. Control Delav. and LOS Determination
EB WB NB SB
IAdj. fiow rate 191 314 97 7 385 101 146 270 166
Lane group cap. 413 950 808 400 703 598 492 514 701
!vIe ratio 0.46 0.33 0.12 0.02 0.55 0.17 0.30 0.53 0.24
Green ratio 0.50 0.50 0.50 0.37 0.37 0.37 0.40 0.40 0.40
Unit. delay d1 15.8 15.0 13.3 20.0 24.9 21.2 20.4 22.8 19.9
Delay factor k 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50
Increm. delay d2 3.7 0.9 0.3 0.1 3.1 0.6 1.5 3.8 0.8
PF factor 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000
Control delay 19.5 15.9 13.6 20.1 27.9 21.8 22.0 26.6 20.7
Lane group LOS B B B C C C C C C
Apprch. delay 16.7 26.6 22.0 24.3
Approach LOS B C C C
Ilntersec. delay 22.0 Intersection LOS C
HCS2000™
Copyright 0 2000 Universily of Florida, All Rights Reserved
Version4.1e
-..............,.
_...... ,...,. ..,. .....".
. . . . SHORT REPORT
Generallnformation Site Information
Intersection NE 31 Ct & Williams Is.
Analyst OCR Blvd.
Agency or Co. Transport Analysis Area Type All other areas
~,ate Performed 06/06/05 Jurisdiction A ventura / Miami-Dade
ime Period PM Peak Hour County
!o-nalysis Year Future with Proiect
Volume and Timina Inout
EB WB NB SB
LT TH RT LT TH RT LT TH RT LT TH RT
Num. of Lanes 1 1 1 1 1 1 0 1 0 1 1 0
Lane group L T R L T R LTR L TR
~oiume (voh) 178 292 149 9 354 115 110 40 10 205 86 127
% Heavv veh 0 0 0 0 0 0 0 0 0 0 0 0
PHF 0.93 0.93 0.93 0.92 0.92 0.92 0.79 0.79 0.79 0.76 0.76 0.76
IActuated (PIA) P P P P P P P P P P P P
Startuo lost time 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
Ext. eft. a reen 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
IArrivallvOe 3 3 3 3 3 3 3 3 3
Unit Extension 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0
Ped/Bike/RTOR Volume 0 22 0 22 0 1 0 62
Lane Width 12.0 12.0 12.0 12.0 12.0 12.0 12.0 12.0 12.0
P arking/Grade/Parki ng N 0 N N 0 N N 0 N N 0 N
Parking/hr
Bus stops/hr 0 0 0 0 0 0 0 0 0
Unit Extension 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0
Phasina EB Onlv EW Perm 03 04 NS Perm 06 07 08
Timing G - 10.0 G = 37.0 G- G- G = 40.0 G= G= G-
y= 3 Y = 5 y- y- Y - 5 y= y= y
Duration of AnalVsis (hrs) - 0.25 Cvcle Lenath C - 100.0
Lane Graue Caeacitv. Control Delav, and LOS Determination
EB WB NB SB
o,dj. flow rate 191 314 137 10 385 101 201 270 199
Lane group cap. 413 950 808 400 703 598 438 489 711
vie ratio 0.46 0.33 0.17 0.03 0.55 0.17 0.46 0.55 0.28
Green ratio 0.50 0.50 0.50 0.37 0.37 0.37 0.40 0.40 0.40
Unif. delay d1 15.8 15.0 13.7 20.0 24.9 21.2 22.0 23.1 20.3
Delay factor k 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50
Increm. delay d2 3.7 0.9 0.5 0.1 3.1 0.6 3.4 4.4 1.0
PF factor 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000 1.000
Control delay 19.5 15.9 14.1 20.1 27.9 21.8 25.5 27.5 21.3
Lane group LOS a a a c C C C C C
Apprch. delay 16.6 26.5 25.5 24.9
Approach LOS a c c C
II ntersec. delay 22.5 Intersection LOS C
HCS2000™
Copyright 0 2000 University of Florida, All Rights Reserved
Version4.1e
. '
Future AM & PM Peak Hour Level of Service
NE 31st Court & Williams Island Boulevard Intersection
With & Without Lincoln Pointe Redevelopment
Int. Veh. AM Peak Hour PM Peak Hour
Approach Mvt. Without With Without With
Left C C C C
NB Thru C C C C
Right C C C C
Approach C C C C
Left B B C C
SB Thru B B C C
Right B B C C
Approach B B C C
Left B B B B
EB Thru B B B B
Right B B B B
Approach B B B B
Left B C C C
WB Thru C C C C
Right C C C C
Approach C C C C
T otall ntersection C C C C
Note: Some movements representative of approach lane group. See details on
individual vehicle delay and level of service calculation report printout sheels.
.')UOf~1 '-r-tA.....vj
CJpI->l/U'If-
TRANSPORT ANALYSIS PROFESSIONALS, INC,
8701 S.W. 137lh AVENUE' SUITE 210 . MIAMI. FL 33183-4498' TEL 305/385-0777' FAX 305/385-9997
FAX & MAIL
Mr. Thomas BIinkley
Shefaor Development, Inc.
2999 NE 191" Street, Suite 803
Aventura, Florida 33180
February 10, 2005
RE: Lincoln Pointe Redevelopment
Modified Site Plan Dated 02-10-05
Traffic Analysis Update
Dear Mr. Brinkley:
Transport Analysis Professionals, Inc. (TAP) has investigated traffic conditions related to the
proposed Lincoln Pointe redevelopment plan. This letter report relates to the site plan dated
February 10,2005, which substantially modifies the original re-development site plan filed with the
City of Aventura on December 14, 2004.
The focus of our traffic investigation involves existing and future operations at the signalized
inteIsection ofWillianls Island Boulevard and NE 31" Court and connections to the access drive that
Lincoln Pointe shares with Biscayne Cove.
Modified Redevelopment Plan
The existing Lincoln Pointe development is a gated residential complex containing a total of 285
apartment units in five buildings. It shares a common private access with the Biscayne Cove
complex immediately north. The shared north/south accessway on the east side of these sites fonns
the south leg (NE 31st Court) at the signalized intersection of Williams Island Boulevard (NE l83rd
Street) and NE 31st Avenue.
The proposed redevelopment consists of demolition of the existing apartment buildings at Lincoln
Pointe and replacing them with one structure having 526 condominium units. The existing Lincoln
Pointe parking lot connections to the shared north/south private accessway will be replaced with a
single connection to a new parking garage. The new curvilinear alignment of the access drive within
Lincoln Pointe will terminate at the southern end of the site via a circular drive at the main entrance
to the new condominium building. The garage entrance is located about 340 feet south of the north
property line (north line of Tract D). The near edge of the circular drive and the garage entrance are
separated by more than 240 feet. (See modified site plan dated February 10, 2005.)
Existing Traffic Conditions
All vehicular traffic entering or leaving Lincoln Pointe passes through the intersection ofNE 3151
Court and Williams Island Boulevard. The intersection is signalized and currently operates "offline"
from others on the Miami-Dade Traffic Control System. The existing phasing and timing plan is
attached.
Planning' Design and Engineering' Accident Rsconstructlon . State of Florida EB 3766
Mr, Thomas Brinkley
Febroary 4, 2005
Page 2
Weekday morning and afternoon peak period traffic volumes were collected at the intersection in
mid-December 2004. The turning movement data are attached. Predominate traffic movements are
east-west along NE 183rd Street.
On the existing Lincoln Pointe site, multiple parking lot connections are made to the shared
north/south accessway. The north parking lot connection is immediately south of the north property
line and is separated from a nearby Biscayne Cove drive connection by approximately 90 feet
measured between centerlines, or about 50 feet measured between the nearest edges of the two
connections.
Site Traffic
The latest seventh edition of Trip Generation published by the Institute of Transportation Engineers
(ITE) was used to estimate the increase in traffic at Lincoln Pointe. ITE provides a number of
techniques to estimate traffic for the existing and proposed land uses involved. For example,
apartments can be evaluated as one generic type or as low-rise or high-rise apartment units. IrE
provides both trip generation rates per residential unit or equations to make trip estimates for each
apartment type. Residential condominiums can be evaluated in a similar fashion, either as a single
group or as sub categories of low rise, high-rise or luxury condominiums.
TAP used both ITE rates and equations to estimate daily and peak hour traffic for the existing and
proposed uses. To provide a "worst case" demand situation for testing future operations at the
signalized intersection of Williams Island Boulevard and NE 31st Court, the ITE method that results
in the lower traffic volume estimate for existing uses was chosen and the higher trip estimating
method for future conditions was selected. This results, intentionally, in likely overstatement of
future demands and modest understatement of existing demands.
The existing and future site traffic volumes derived by these methods are indicated in Table 1. The
trip generation printouts for existing and future site uses are included as attachments.
Table 1
Existing and Future Trip Generation
Lincoln Pointe
Time Frame Direction Existina Future Chanae
In 931 1541 610
Daily Out 931 1541 610
Total 1862 3082 1220
AM Peak In 28 68 40
Hour Out 115 227 112
Total 143 295 152
PM Peak In 113 184 71
Hour Out 61 105 44
Total 174 289 115
Mr. Thomas Brinkley
February 4, 2005
Page 3
The increases in Lincoln Pointe traffic indicated in Table I were added to the existing volumes of
traffic measured at the intersection of Williams Island Boulevard and NE 31 ,j Court. The increases
were distributed proportionally to existing turning movements to and from the NE 31" Court leg of
the intersection.
Signalized Intersection Operations
The Williams Island Boulevard and NE 31" Court intersection was evaluated using software that
supports the Highway Capacity Manual method of analysis. The level of service results for both
existing and future conditions is shown in Table 2. The analysis printouts are attached.
This intersection, along with hundreds of other signalized locations throughout Miami-Dade will be
integrated into an updated traffic-responsive system in the future. The updated system is in the
developmental stage and our analysis assumes the existing signal equipment will remain in place
(i.e., "off-line") for a few years after the Lincoln Pointe redevelopment plan is completed and reaches
mature occupancy. Only modest signal timing adjustments that would normally and routinely be
made by County traffic engineers were assumed for the capabilities and limitations of the existing
signal equipment at this intersection.
Table 2
Existing and Future Level of Service
NE 31st Court and Williams Island Boulevard
PM Peak
Hour
Average Delay (sec.) Level of Service
Approach Existina F utu re Existina F utu re
Northbound 24.9 33.9 C C
Southbound 19.7 19.8 B B
Eastbound 15.8 15.6 B B
Westbound 23.8 23.8 C C
Intersection 20.4 23.4 C C
Northbound 21.2 24.1 C C
Southbound 22.1 22.4 C C
Eastbound 14.8 14.8 B B
Westbound 24.8 24.8 C C
Intersection 20.4 20.8 C C
Period
AM Peak
Hour
Accessway Connections
The Lincoln Pointe redevelopment site plan modification dated February 10, 2005, eliminates the
existing north connection to the common accessway shared with Biscayne Cove. The separation
between the Biscayne Cove south connection to the shared accessway and the proposed Lincoln
Pointe garage entrance is slightly more than 400 feet. TIus future separation between connections
along the private accessway is greater than City of AventuIa code requirements applicable to multi-
family paIking lot driveway connections to public streets: no closer than 50 feet to a street
inteIsection and spaced no closer than ISO feet along collector streets or 330 feet along arterial
streets.
Mr. Thomas Brinkley
February 4,2005
Page 4
Conclusions
The "worst case" Lincoln Pointe redevelopment traffic increases used in this analysis represent about
a 55% AM and 40% PM increase in ttlming movements to and from NE 31 st Court at the Williams
Island Boulevard intersection. The intersection will continue to provide Level of Service C operating
conditions in the future. Acceptable levels of service exist on each approach and will continue to be
acceptable with the Lincoln Pointe redeveloped proposed.
The redevelopment plan includes ample separation between the Lincoln Pointe garage entrance and
the circular drive to the south and between the garage entrance and the nearest Biscayne Cove access
cOlmection to the north. Operation of each element will be independent and the functional influence
areas of each will not overlap.
Should you want to discuss our findings in greater detail, please do not hesitate call me.
Very truly yours,
TRANSPORT ANALYSIS PROFESSIONALS, INC.
a~c::~
David C. Rhinard, P.E.
Principal
DCRlja/4572
Attachments
cc; Stanley Price, Esq. (w/attachments)
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8701 SW 137thAViNtJE, SUTB210
MIAMI, FLORlDA 33183-4498
(305) m 0777 Of!lc. (305) m 9997 '
PUINIIIlCl :4S72NE31@183AM
SIll Ced, : 45723077 .
SlIrIOIll : 1211sn004
lap No :2
IlIIITImt l.ol\
lilt rom : 10 :
Inllrslollon os :00 15 4' 30 163 4 :143 ~ 65 334 1" 43 0 1 199 58 '9' 9 ' 41
VOIUIIII 76 400 1096
Plrolll! 46,6 9.' '!,8 18.4' I., 7U U 19,! 71,9 21,6 0,0 O.! 14.! 73,0 ',3 10.3
VOIUIIII 76 15 42 30 163 4 :143 ~ 65 334 155 43 0 1 199 58 ,g, 9 41 400 1096
Voluma 28 , 11 5 46 0 63 1 '0 90 29 8 0 0 37 17 8l 3 16 121 294
Pllle'lotor 0,932
Hllhlnl, 08:15 08:00 08:15 08:45
Vol\lllll II 4' 12 12 46 3 66 3 19 91 49 16 0 0 65 17 8l 3 16 121
Polle 'Ioter 0,886 0,918 0,765 0,826
1"'"''
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----;--'-- ---_ ~_.______ __.._______..'..a__'.._...
8701 SW 137th AVENUE, StJIT.E 210
MIAMI, FLORIDA 3318304498
(30') m 0777 Ofl'I.OI (30') m 9997
FUcN_ : 4572NE31@183PM
811I CoclI : 45723077
8l1rll)IlI : 12/1512004
Pap No :2
l..nlln l.oIl
ur rtfI'l I " :
In_clio. 16:30 58 46 39 294 6 290 18 76 390 76 28 ' I 6 III 109 216 21 80
Volume 151 426 1221
Percenl 51.4 19,7 15,6 13,3 U 74.4 4.6 19,5 68.5, 25.2 0,9 5,4 25,6 50,7 4,9 18.8
Volum. 151 58 46 39 294 6 290 18 76 390 76 28 I 6 111 109 216 21 80 426 1221
Volume 45 26 16 10 97 I 73 8 17 99 24 10 0 1 35 26 55 10 24 115 346
Peak FaclOr 0,882
Hlihlnl, 17:15 16:30 17:15 17:15
Volume 45 26 16 10 97 1 80 2 23 106 24 10 0 35 26 55 10 24 115
Peak F..tot 0,751 0,920 0,793 0.926
'11II"'
~~: T~: ~
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~~- 111&':10041:11:00 PM -h
ah II .rill
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qpl.CT.IJ
- ...........".
~in=o~n fointe Redevelopment -- &xiatinq
s~ary of Trip Generetion Ca~o~~ation
For 2BS Dwellinq Onits of Apartments
Deoember 16, 2004
Avera;e Standard Adjustment Driveway
aate Deviation Faotor Vo~ume
Avq, Weekday 2-Way Volume
7-9 AM feak Hour Enter
7-9 AM Peak Hour Exit
7-9 AM Peak Hour Total
4-6 PM Peak Hour Enter
4-6 PM Peak Hour Exit
4-6 PM Peak Hour Tota~
AM fk Hr, Generator, &nter
AM fk Hr, Generator, &xit
AM fk Hr, Generator, Total
PM Pk Hr, Generator, Enter
fM Pk Hr, Generator, Exit
PM Pk Hr, Generator, Total
Saturday 2-Way Volume
Saturday Peak Hour Enter
Saturday feak Hour Exit
Saturday feak Hour Tota~
Sunday 2-Way Volume
Sunday Peak Hour Enter
Sunday feak Hour Exit
Sunday Peak Hour 'Total
6.54
0,10
0.40
0.50
0.40
0,21
0,61
0.16 '
0.39
0.54
'0.40
0.26
0.66
6.95
0.00
0,00
0,48
, 6.07
0,00
0.00
0.00
0,00
0,00
0,00
0,00
0,00
0,00
0,00
0,00
0.00
0.00
0,00
0.00
0,00
0,00
0,00
0.00
0,00
0.00
0.00
0,00
0.00
1.00
1.00
1.00
1.00
1.00
1.00
1,00
1. 00
1,00
1.00
1,00
1,00
1,00
1.00
1. 00
1,00
1,00
1.00
1.00
1.00
1,00
1963
29
115
143
113
61
~74
45
110
155
115
74
189
1961
o
o
136
1729
o
o
o
Note: A zero 'indicates no data available.
The above rates were calculated from these equations:
24-Hr, 2-way Volume:
7-9 AM Peak Hr, Total:
4-6 PM.feak Hr. Total:
AM Gen fk Hr. Total:
fM Gen fk Hr. Total:
Sat. 2-Way Volume:
Sat. fk Hr. Tota~:
Sun. 2-way Volume:
Sun. fk Hr. Total:
T. 6.01(X) + ~50.35, R^2. 0,88
T. .49(X) + 3,73
R^2. 0.83, 0.2 Enter, 0,8 Exit
T. .55(X) + 17.65
R^2. 0.77, 0.65 Enter, 0.35 &xit
T. .53(X) + 4,21
R^2 - 0,82, 0,29 Enter, 0,71 Exit
T. ,6(XI ~ 17,52
R^2. 0.8, 0,61 Enter, 0.39 Exit
T - 7.S5(X) + -256.19, R^2 - 0.S5
T. .41(X) + 19.23
R^2 - 0.56, 0 Enter, 0 Exit
T. 6.42(X) + -101.12, R^2. 0.82
o ,
R^2. 0, 0 Enter, 0 Exit
Source: Institute of Transportation &nqineers
Trip Generation, 7th Edition,. 2003,
TRIf GENERATION S~ MICROTRANS
~~nooln pointe Redevelopment -- FUture
Summary of Tr~p Generat~on Calculation
For ~26 Occup~ed'Dwell~nq On~ts of ~uxury Rel~dentill Condo / Townnouse
Oecember 16, 2004
Averaqe Standard Adjustment Driveway
Rate Oeviation Faoto:: Volume
Avq. Weekday 2-Way Volume 0,00 0.00 1.00 0
7-9 AM Peak Hour Enter 0,13 0,00 1.00 68
7-9 AM feak Hour Ex1t 0.43 0.00 1.00 226
7-9 AM Peak Hour Total 0.56 0.75 1.00 295
4-6 PM Peak Hour Enter 0.35 0.00 1.00 184
4-6 PM Peak Hour Exit 0,20 0,00 1.00 105
4-6 PM Peak Hour Total 0,55 0,74 1.00 289
AM Pk Hr, Generator, Enter 0,21 0.00 1.00 110
AM Pk Hr, Generator', Exit 0.44 0.00 1.00 231
AM Pk Hr, Generator, Total 0.65 0, S1 1.00 342
PM Pk Hr, Gene::ato::, Ente:: 0.39 0.00 1.00 205
PM Pk Hr, Gene::ator, Exit 0.26 0.00 1.00 137
PM Pk Hr, Generator, Total 0.65 O. Sl 1.00 342
Saturday 2-Way Volume 0.00 0.00 1.00 0
Saturday Peak Hou:: Ente:: 0,00 0.00 1.00 0
saturday 'Peak Hour Exit 0,00 0,00 1,00 0
SaturdaY Peak Hour Total 0.00 0,00 1,00 0
Sunday 2-way Volume 0,00 0,00 1.00 0
sunday Peak Hour Ente:: 0.00 0.00 1.00, 0
Sunday Peak Hou:: Exit 0.00 0.00 1.00 0
Sunday Peak Hcu:: Total 0,00 , 0.0,0 1.00 0
Note: A ze::o indicates no data available.
Sour.ce: Institute of ,Transportation Enqineen ,
Trip Generation, 7tn Edition, 2003.
TRIP GENERATION B~ MICROTRANS
t.incoln pointe Redevelopment ,-- Future
summary of ~rip Generation Calculation
For 526 Occupied ewellinq Cnite of t.uxury Reeidential Condo I ~ownhouee
Cecember 16, 2004 .
Averaqe Standard Adjl>ltment Criveway
P.ate Oeviation Faotor Velume
Avq. Weekdey 2-Way Velume 0.00 0,00 l.OO 0
7-9 AM peak Hour Enter 0.09 0.00 l.OO U
7-9 AM P.a~ Hour Exit 0.29 0.00 1.00 155
7-9 AM P.a~ Hour ~otal 0,39 0.00 1,00 20l ,
4-6 PM Plak HOl>r Enter 0.46 0.00 l,OO 242
4-6 PM Peak HOl>r Exit 0.27 0.00 l,OO 142
4-6 PM Peak Hour ~otal 0.73 0,00 1,00 39S
AM Pk Hr, Generator, Enter 0.22 0,00 , l,OO 117
AM Pk Hr, Generator, Exit 0.47 .0,00 l,OO 250
AM Pk Hr, Generator, Total 0,70 0,00 1.00 367
PM Pk Hr, Generator, Enter 0.55 0.00 1.00 291
PM Pk Hr, Generator, Exit 0.37 0.00 1,00 194
PM Pk Hr, Generator, Total . 0.92 0.00 1.00 485
Satl>rday 2-Way Volume 0,00 0.00 1,00 0
satl>rday Peak HOl>r Enter 0,00 0,00 1,00 0
Saturday Peak Hour Exit 0,00 0,00 l,OO 0
Saturday Peak Hour Total 0.00 0,00 1.00 0
Sunday 2-way Volume 0,00 0.00 1,00 0
Sunday Peak Hour Enter 0.00 0.00 1.00 0
SI>nday Plak HOl>r Exit 0.00 0.00 1.00 0
Sunday Peak Hour Total 0,00 0,00 1,00 0
. Note: A zero indioatee no data available.
The above rates were calculated from these equations:
24-Hr. 2-Way Volume: 0, 1'.^2 - 0
7-9 AM Pesk Hr. Total: LN(T) - .76LN(X) + ,54
1'.^2 - 0.93, 0.23 Entlr, 0.77 Exit
4-6 PM Plak Hr. Total: T - .78(X) + -25,38
R^2 - 0.99, 0.63 Enter, 0.37 Exit
AM Gen Pk Hr, Total: T - .71(X) + -6.31
1'.^2. 0,98, 0,32 Enter, 0.68 Exit
PM Gen Pk Hr, Total: t.N(T) - 1.22LN(X) + -1.46
R^2 - 0,98, 0.6 Enter, 0,4 Exit
Sat, 2-way Volume: 0, 1'.^2 - 0
Sat, Pk Hr. Total: 0
1'.^2 - '0, 0 Enter, 0 Exit
Sun, 2-way Volume: 0, R^2 - 0
Sun, Pk Hr, Total: 0
R^2. 0, 0 Enter, 0 Exit
Source: Inetitute of Transportation Enqineers
Trip Generation, 7th Edition, 2003.
TRIP GENERATION BY MICROTRANS
Linooln pointe Re~evelopment -- Future
. Summary' of Trip Glneration Calculation
For 526 cwellinq Onits of Resi~ential Condominium / Townhouse
Clcemkit: 16, 2004
Average Stan~ar~ Ad.jlutment Driveway
Rate Deviation Factor Vol'.llt\e
Avq. Weekday 2-Way Volume s.as 3.09 1.00 3082
7-9 AM Peak Hour Enter . 0,07 0,00 1,00 37
7-9 AM Plak Hcur Exit 0.37 0.00 1,00 195
7-9 AM Peak Hour .Total 0.44 0.69. 1,00 231
4-6 PM Peak Hour Enter 0.35 0.00 1.00 184
4-6 PM Peak Hour Exit 0.17 0.00 1.00 89
4-6 PM .peak Hour Total. 0.52 0.75 1.00 274
AM Pk Sr, Generator, Enter o.oa 0.00 1;00 42
AM Pk Hr, Generator, Exit 0,36 0.00 1,00 189
AM Pk Hr, Generator, Total 0.44 O. sa 1.00 231
PM Pk Hr, Generator, Enter 0,33 0.00 1,00 174
PM Pk Hr, Generator, Exit 0,19 0.00 1,00 100
PM pk'Hr, Generator, Total 0.52 0.75 1,00 274
Saturday 2~Way Volume 5.67 3.10 1.00 2982
Saturday Peak Hour Enter 0,25 0.00 1.00 132
Saturday Peak Hour Exit 0,22 0.00 1.00 11S
Saturday Peak Hout Total 0.47 0.71 1,00 24'1
Sunday 2-Way Volume 4.84 2.71 1.00 2546
Sunday Peak Hour Enter 0.22 0.00 1.00 116
Sunday' peak Hour Exit 0.23 0.00 1,00 121
sun~ay Peak Hour Total 0,45 0.70 1.00 237
Note: A zero indicates no data available.
Source: Institute of Transportation Enqineers
Trip Generation, 7th Edition, 2003.
TRIP GENERATION BY MICROTRANS
" Lincpln fointl Rec:levelopment -- Future
Summary of Trip Glneration Calculation
For 526 OWellinq Onite of leeidential Condominium / ~ownhousl
Olcember 16, 2'0'04
Avera;e Stanclarc:l Ad:ju.stment . Criveway,
!\ate Ceviation Factor Vol\llt\e
Av;. W.ekday 2-Way Volu.me 5.00 0,00 1.00 2632
7-9 AM Peak Hour Enter 0,06 0,0'0 1,0'0 33
7-9 AM Peak Hour Exit '0.31 0,00 1.00 162
7-9 AM Peak Hour Total 0.37 '0,'00 1,0'0 195
4-6 PM peak Hour Enter 0,30 0,0'0 1.00 157
4-6 PM Peak Hour Exit 0,15 0,00 '1.00 77
4-6 PM Peak Hour Total 0,45 0,'00 1,00 235
AM pk Hr, Generator, Enter 0,'07 0.00 1.00 36
AM Pk Hr, Generator, Exit 0.31 0,00 1.00 166
,AM Pk Hr, Generator, Total 0,36 0,00 1.00 202
PM Pk Hr, Generator, Enter 0,26 0,00 1.00 139
PM Pk Hr, Generator, Exit 0.15 0,00 . 1,00 76
pM Pk Hr, Generator, Total 0,41 0.00 1,00 217
Saturc:lay 2-Way Volume 4. 43 0,00 1,00 2332
Saturc:lay Peak Hour Enter 0.20 0,00 1.00 105
Saturc:lay Peak Hour Exit 0.17 0,00 1.00 90
saturday Peak Hour Total 0.37 0.00 1.00 195
Sunday 2-Way Volu.me 3.el 0.00 1.00 2004
Sunday Peak Hour Enter 0.16 0.00 1.00 64
Su.nday Peak Hour Exit 0.17 0,00 1,00 67
Su.nday Peak Hour Total 0,33 0.00 1.00 171
Note: A zero indicates no data available,
The above 'rates were calculated from theee equational
24-Hr. 2-Way Vol\llt\e: . LN(T) . .65LN(X) + ,2.55, R^2 - '0.63
7-9 AM Peak Hr. Total: LN('l') . . SI.N (XI + .26
R^2 - 0.76 , 0.17 Enter, 0.63 Exit
4-6 PM Peak Hr. Total: LN('l') . .62LN(X) + .32
1\^2 - 0.6 , 0.67 Enter, 0.33 Exit
,AM Gen Pk Hr, Total : LN('l') . .62LN(XI + .17
R^2 . 0.6 , 0,16 Enter, 0.82 Exit
PM Gen Pk Hr. Tot 1.1 : 'I' - .34 (Xl + 36.31
1\"'2 - 0.63 , 0,64 Enter, 0.36 Exit
Sat. 2-Way Volume: T - 3,62 (Xl + 427,93, R^2 - 0.84
Sat, Pk Hr, 'l'otal: 'I' - ,29 (X) + 42.63
R^2 - 0.84 , 0,54 Enter, 0,(6 Exit
Su.n. 2-Way Vol\llt\e: T - 3.13(X) + 357,26, R^2 - 0.88
Sun. Pk Hr, Total: T - .23(X) + 50,01
1\^2 - 0,78 , 0.49 Enter, 0.51 Exit
Source: Institute of Transportation Enqineers
Trip Generation, 7th Edition, 2003,
TI\IP GENEI\ATIONBt MICI\OTI\ANS
-.. . _u_ ...._...._.._..
Analyst ' OCR t:~'Cijon NE 31 Ct_~ Wllttams tl,
Blvd.
~g.ncy or Co, Tl'lnsport Analyals I TYlle All other IreS8
Dlte Performed 12/2012004 JurI'dlcllon Av,ntul'Il MI,ml.O,d,
"'1m. Period PM Puk 110llr Oounty
.A.nalvele Vear Future
Volume end "'Imina In"ut
. . EB WB NB SB
L.T TH RT L.T TH RT L.T TH RT LT TH RT
Num, of L.an.. 1 1 1 1 1 1 '0 1 0 1 1 0
Lane group l. T R l. 'T R LTR L TR
~Iume (vohl 109 216 144 9 290 94 106 39 10 181 63 88
'10 Heaw veh 0 0 0 0 0 0 0 0 0 0 0 0
PHF 0,93 0,93 0,93 0.92 0.92 0,92 0,79 0,79 0,79 . 0,78 0,76 0.76
ctuated (F/Al P P P P P P P P P P P P
tartuoloet time 2,0 2,0 2.0 2.0 2.0 2.0 2,0 2,0 2.0 I.
Ext. elf, oreen 2,0 2,0 2.0 2.0 2.0 2.0 2,0 2.0 2.0
Arrival IVee 3 3 3 3 3 3 3 3 3
Unit EXtenelon .' 3,0 3,0 3,0 3.0 3,0 3,0 3,0 3,0 3.0
Ped/BlkelRTOR Volume 0 21 0 18 0 1 0 46
Lane WIdth 12,0 12,0 12.0 12,0 12,0 12.0 12.0 12,0. 12,0
Perklng/arade/Perklng N 0 N N 0 N N 0 N N 0 N
Parklng/hr'
Bus etops/hr 0 0 0 0 0 0 0 0 0
. Unit Extension 3.0 3,0 3.0 3.0 3,0 3,0 3.0 3.0 3.0
Phaslno EB Onlv EW Perm 03 04 NS Perm 06 07 OS
rrlmlng a. 10,0 a. 37,0 a. a. a. 40,0 a. a. a.
Y.3 Y.5 y" y" Y.5 y. y. y.
Duration 01 Analvele Ihrs · 0.25 SE:le Lenath C" 100,0
LIne GrouD CIDlel tv. Control Dellv. and LOS Determlnltlon
EB WB NB SB
Ad], flow rate 117 232 132 10 315 83 194 199 160
L.ane group cap. 489 980 808 432 703 898 474 492 724
Ie ratio .0,25 0,24 0,18 0,02 0.45 0,14 0.41 0.40 0.22
Green ratio . 0,80 0.80 0.80 0,37 0.37 0.37 0,40 0,40 0.40
U nl1, delay d 1 14,4 14.2 13,8 20.0 23,8 20,9 21,8 21,8 19.7
Delay fact!lr k 0,80 0,80 0.80 0.80 MO 0,80 0,80 0,80 0,50
I nerem, delay d2 1,3 0,8 0.4 0.1 2,1 0,8 2.8 2.8 0.7
PF factor . 1,000 1,000 1.000 1.000 1,000 1,000 1,000 1.000 1.000
Control delay 18.8 14,8. 14.0 20,1 28.9 21,4 24.1 23.9 20.4
Lane group L.OS 8 8 8 C C C C C C
Apprch, delay 14.8 . 24.8 24,1 22.4
Approach LOS 8 C C C
Intersec, delay 20.8 Intersection LOS C
HCSJDDDTM
Copyrlrht e 2000 Unlvemty .rFI.rlda, Al1ll.lrhlllW"".d
. -.'-'''---T
--.----T ;,-
T
V."I.n 4.le
SHORT REPORT
alnll'll Infonnltlon !it, Infonn'tJon
"tll'lletio" NE J1 at 5 Wllllama lB.
"'nRlyst . OCR Blva,
"'geney or Co. . Transporl Analysis ..re. Type All other araa,
Date Performed 12/2312004 urlldlotlon A ventura / Mlaml.alde
Ime P.erlod AM Peek Hour County
Pin.lvsls Year. Exl,tlna
Volume and Tlmln" Inl'lut
E8 we NB SB
LT TH RT LT TH RT LT TH RT LT TH RT
Num, of Lanes . 1 1 1 1 1 1. 0 1 0 1 . 1 0
Lane group L T R L T R LTR L TR
Volume Ivehl 68 292 60 4 243 87 166 43 1 78 16 72
% Heaw veh 0 0 0 0 0 0 0 0 0 0 0 0
PHF 0,83 0.83 0,83 0,92 0,92 0.92 0,78 0,78 0,78 0,87 0,87 0,87
l6.etuated IPIAl P P P P P P P P P P p. P
~artue lost time 2.0 2,0 2.0 2.0 2.0, 2.0 2,0. 2,0 2,0
Ext, eff. areen 2,0 2,0 2.0 2,0 2.0 2,0 2,0 2.0 2.0
[Arrive I Ivee 3 3 3 3 3 3 3 3 . 3
IUnlt extension 3.0 3.0 3,0 3.0 3.0 3.0 3,0 3.0 3.0
Pedl61kelRTOR Volume 0 9 0 22 0 0 0 42
Lane Width 12.0 12.0 12,0 12.0 12,0 12,0 12,0 12,0 12.0
parklng/Cl rade/Perklng N 0 N N 0 N N 0 N N 0 N
Parklng/hr
6usstops/hr 0 0 0 0 0 0 0 0 0
Unit extension 13.0 3.0 3,0 3.0 . 3,0 3.0 3.0 3,0 3,0
Phaslna 5B Onlv EW Perm 03 04 NS Perm oa 07 . OS
~Imlng G. 10.0 cl II 37.0 a. all a.. 40,0 a. a. G..
Y.3 y. /5 y. y. y. /5 y. y. Y..
Duration of Analvsls Ihrs · 0,2/5 levcle Lenath C . 100,0
Lane GrouD CaDacl~ Control Oelav. and LOS Determination
56 W6 . N6 S6
..dJ, flow rate 70 362 49 4 284 71 282 87 61
Lans group cap. 511 960 808 387 703 698 582 4/52 884
vie ratio 0,14 0,37 0.08 0,01 0,38' 0,12 0,47 0,18 0,07.
Green ratio 0,50 0,50 0.60 0,37 0,37 0,37 0,40 0,40 0,40
Unlf, delay d1 13.8 16.3 12,9 19.9 23.0 20.8 22,1 19,4 18.5
Delay factor k 0,50 0.50 0,50 0.50 0.50 0.50 0.50 0,50 0.50
Increm, dellY d2 0,8 1,1 0,1 0.0 1,5 0.4 2.8 0,8 0,2
PF factor 1.000 1,000 1,000 1,000 1.000 1,000 1,000 1,000 1.000
Control delay 14,2 18.5 13,0 20,0 24,/5 21.2 24,9 20,2 18./5
Line group LOS B B B B C C C C B
IA-pprch. delay 15,/5 23,8 24,9 19.7
IA-pproeeh LOS B C C S
Intereee. delay 20,4 Intersection LOS C
HCSIOOO'rM
Copyrlaht 0 2000 tJni.."Itj' otPlorld~ AIi P.llhu P.u.",.d
Vlrlion..\
'. ,
SHORT REPORT
:;.n.rallnformatlon i!!ta Information
I nler.ecUon NES1 t & WilliAm. I.,
..nllyst OCR Blvd,
..;ency or Co, Trsnsport AnalysIs ..rea Type All ther erea.
Cat. Performed 12/2312004 . urlsdlctlpn A ventu .-IM/am/-Oad. .
Ime Period PM Peak Hour ~~nty .
...nllvlll Year 1st/ria .
. Volume and Tlmlna Inl>ut
EB we B SB
l.T TH RT l.T TH RT l.T H RT l.T TH RT
Num. of L.lnes. 1 1 1 1 1 1 0 0 1 1 0 I
l.an. group L T R L T R LTR L TR
Volume rvoh) 109. 218 101 6 290 94 76 2B 7 161 58 85
% Helw veh 0 0 0 0 0 0 0 Q 0 0 0 0
PHF 0,93 0.93 0.93 . 0,92 0,92 0,92 0,79 0.79 0,79 0,76 0,76 0,76
Actuated (PIAl P P .p P P P P f p p p p
Startu" lost time 2,0 2,0 2.0 2.0 2.0 2,0 210 2.0 2.0
Ex!. eff, areen 2,0 2..0 2.0 2,0 2,0 2,0 20 2.0 2.0
Arrival tvl>e 3 3 3 3 3 3 3 3
Unit extension 3,0 3.0 3:0 3,0 3.0 3,0 ,0 3,0 3,0
Ped/Blke/RTOR Volume 0 21 0 18 0 I 1 0 46
L.ane Width 12,0 12,0 12,0 12.0 12.0 12.0 12.0 12.0. 12.0
Parklnc/Grade/Parklng N 0 N N .0 N N 0 N. N 0 N
Parklnglhr
BU8 8top8/hr 0 0 0 0 0 0 0 0
Unit Exten810n 3.0 3.0 3,0 3,0 3,0 3,0 .0 3.0 3,0
Phaalntl EB Onlv EW Perm 03 04 NS Perm OS 07 08
rrlmlng G = 10,0 G = 37,0 G. G= G. 40.0 G= i G=. G.
. Y= 3 y= 5 y= y= Y.5 y= I Y= y.
Duretlon of Analvala rhre = 0.25 Cvele I!enath C. 100,0
Lane Groul:! CaDael tv. Control Delav. and LOS Determination T
EB WB N/! SB
Vo.dJ, flow rete 117 232 86 7 31/5 83 13~ 199 127
l.ene group oap, 469 960 808 432 . 703 598 63~ 517 714
Ie ratIo 0.26 0.24 0,11 0.02 0.45 0,14 0,28 0.38 0,18
Green ratio 0.50 0,50 0./50 0.37 0,37 0.37 0.4$ 0.40 0.40
Unlf, delay d 1 14.4 14,2 13,2 20.0 23.8 20.9 20.1 21,3 19.4
Delay faetor k 0.50 0,50 0,50 0,50 0.50 0.50 O,5Q 0.50 0.50
Iner.m. d.lay d2 1,3 0.8 . 0,3 0.1 2.1 0,5 1,~ 2,2 0.5
PF factor 1,000 1.000 1.000 1,000 1,000 1.000 1.000 1,000 1,000
Control delay 16,6 14,8 13.5 20,0 25,9' 21,4 21,2 23.4 19,9
l.ane group l.OS B B B 0 0 0 oj 0 B
Appreh, delay 14,8 24,8 21,2 i 22.1
Approach l.OS B 0 0 ! 0
Inlersee, delay 20,4 Intersection LOS I 0
/((;$1000™
CopyNsht 0 '000 tlnI.."Ill' or Florida, AIil'JSh~ ~...rvod
V'''lo.4.I
SHORT REPORT .
~n.rallnformltlon ~t. Inform.tlon NE 31 Ct & Wllllaml II.
~naiYlt nlerseoHon
OCR Blvd.
~genoy or 00. Transport Analysis ~a Type All other a1'88S
~,ate Performed. 12/2312004 ~urledlotion Aventura I M/aml-Dede
AM Peek Hour Oounty
Ime Period l4nalvlll Year.
Futura
Volum. and T1mln'" In"ut
E8 . we N8 sa
L.T TH RT L.T TH RT L.T TH RT L.T TH RT
Num, of Lanee 1 1 1 1 1 1 0 1 0 1 1 0
Lane group L T R L T R LTR L TR
1V0lume (vohl 68 292 79 8 243 87 242 67 2 76 24 72
'10 Heaw veh 0 0 0 0 0 0 0 0 0 0 0 0
PHF 0,83 0,83 0.83 0,92 0.92 0,92 0,78 0,76 0.7S 0,87 0,87 0,S7
1A0tuated (P/Al P P P ,p P P P P P P P P
Startuo lost time 2.0 2,0 2,0 2,0 2.0 2.0 2,0 2.0 2,0
ext. efr. creen 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0
rrlval !vo. 3 3 3 3 3 3 3 3 3
Unit Extenelon 3.0 3.0 3.0 3,0 3.0 3,0 3.0 3.0 3,0
Ped/Blke/RTOR Volume 0 9 0 22 0 0 0 42
Lane Width 12,0 12,0 12.0 12,0 12.0 12.0 12.0 12,0 12.0
Parking/a rade/Parklng N 0 N N 0 N N 0 N N 0 N
Parklno/hr
Bus stops/hr 0 0 0 0 .0 0 0 0 0
Unit Extension 3.0 3,0 3,0 3,0 3.0 3.0 3,0 3.0 3.0
Phasln'" EB Onlv EW Perm 03 04 NS Perm OS 07 08
1mlng a.. 10.0 a.. 37,0 a- a- a - 40,0 a- a. a.
Y= 3 y= 6 y- y.. y. s V" V. V-
Duration of Analvsls (hrs) .. 0,26 Cyole Lenoth 0 .. 100,0 ,
Lane GrouD CaDacltv, Control Delav. and LOS Determination ,
. EB WB NB SB .
Ad], flow rate 70 352 84 7 284 71 409 87 62
Lane group osp, 511 960 808 387 703 698 5Se 462 S9S
Ie ratio 0,14 0,37 0.10 0.02 0,38. 0.12 0.74 0,19 0,09
Green ratle 0.60 0.60 0,60 0.37 0,37 0.37 0.40 0.40 0,40
Unlf, delay d1 13.5 1S,3 13,2 20.0 . 23.0 20.8 2M 19.5 18,7
Delay faetor k 0,50 0,50 0.50 0,50 0,50 0.50 0,50 0.50 0.50
Inerem. delay d2 0,8 1,1 0,3 0,1 1,5 0.4 8,4 0.9 0.3
PF faetor 1.000 1.000 ' 1.000 1,000 1,000 1.000 1,000 1,000 1.000
Control delay 14.2 16,6 13.4 20,1 24.6 21,2 33,9 20.4 18.9
L.ane group L.OS B B B 0 C 0 0 0 B
Appreh, delay 15,6 23,8 33,9 19.8
Approaoh LOS S .C C S
Interseo, delay 23,4 Interseotlon L.OS C
HCSJOOOTM
CoPYrllhlO 2000 \.In!""I!)' o{Plorlda, All RJlh~ r.oHrv,d
-.-........... .,..
Vorrion4.11
. . SHORT REPORT
Generlllnformltlon Sit. Information .
Inlll1lcllon NE 31 Ot is WIllIams Is,
~nalyst DCR Blvd,
6.gency or Co. Trsnsporl An.lysls Area Type AI/ other sress
Cllte Pllrformed 12/2312004 JurisdiCtion Aventure I Mlsml-Osds
Ime PeriOd PM Peak Hour County
Analvsls Year . Future
Volum. and Tlmln" In"ut
es WB NB SB
L.T TH RT L.T TH RT L.T TH RT L.T TH RT
Num. of L.anes 1 1 1 1 1 1 a 1 a 1 1 a
L.ane gJ'Qup l. T R l. T R l.TR l. TR
Volume (v"h\ 10.9 218 144 9 290. 94 10.8 39 10. I1S1 83 8S
. % Heaw veh a a a a a a a a a a a a
PHF 0.,93 0..93 0..93 0.,92 0..92 0.,92 0..79 0.,79 0.,79 0..78 0.,78 0.,78
IActuated-rP/A\ P P P P P P P P P P P .p
Startu" lost time --:- 2.0. 2,0. 2.0. 2,0. 2,0. 2.0. 2,0. 2,0. 2,0.
Ext. eff.orean 2.0. 2,0. 2,0. 2,0. 2.0. 2,0. 2.0. 2.0. 2,0.
IArrlva[lVOe 3 3 3 3 3 3 3 3 3
Unit extension 3,0. 3,0. 3.0. 3.0. 3.0. 3,0. 3.0. 3,0. 3,0.
Ped/Blke/RTOR Volume a 21 a 18 a 1 a 48
L.ane Width . . 12,0. 12,0. 12,0. 12.0. 12.0. 12,0. 12,0. 12,0. 12,0
~rklng/arade/Parklnc N a. . N .N a N N a N N a N
Parklng/hr
Bus stops/hr a a a a a a a a a
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Phasin" EB Onlv EW Perm 0.3 0.4 NS Perm 06 0.7 0.6
Imlng a. 10.,0. CO" 37,0. a. a. CO" 40.,0. a. co.. a-
y- 3 Y.8 y. y. y. 8 y. IY. y..
Duration of Analvsls (hrs = 0..28 Cvcle L.encrth C - 10.0..0.
Lane Grouo Caolol tv. Control Delav. Ind LOS Determination
EB WB NB SB
Ad], flow rate 117 232 132 10. 31S 83 194 199 180.
L.ane group cap. 489 9Sa 808 432 70.3 898 474 492 724
"fc ratio 0.,28 0..24 0..18 0..0.2 0.,46 0.,14 0.,41 0.,40. 0.,22
. ~reen ratio 0..80. 0..80. 0..50. 0..37 . 0.,37 0..37 0..40. 0.,40. 0.,40.
Unlf, delay d1 14,4 14,2 13.6 20.,0. 23.8 20.,9 21,S 21.5. 19.7
Delay factork . 0.,50. 0..50. . 0..50. 0..50. 0..50. 0..50. 0.,50 0.,50. 0..50.
Increm, delay d2 1,3 0.,8 0..4 0.1 2,1 0.5 2.8 2.5 0,7
PF factor 1.000. 1,00.0 1,00.0 1,00.0 1.000 1,000 1.0.00 1,.0.00. 1.00.0.
Control delay 16.8 14.8 14,0. 20..1 25.9 21,4 24.1 23,9 20.,4
. B B B C C C C
L.ane group L.OS C C
v.,pptch, delay 14.8 24.8 24.1 22,4
~pproach L.OS B C C C
Intersec, delay 20.,8 Intersection L.OS C
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IN THE ELEVENlH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY,
FLORIDA
Case No.
Lower Tribunal Resolution No. 2005-48
SHEFAORffARRAGON, LLLP,
a Florida Limited Liability Limited Partnership,
Petitioner,
vs.
THE CITY OF A VENTURA, a
Florida municipal corporation and
[all persons who spoke at public
hearing]
Respondents.
INDEX TO APPENDIX
BILZIN SUMBERG BAENA
PRICE & AXELROD LLP
Attorneys for Petitioner
200 South Biscayne Boulevard
Suite 2500
Miami, Florida 33131-2336
Telephone: (305) 374-7580
Facsimile: (305) 374-7
0.. ~.
By: 0
By:
Stanley rice
FIO,~O. ',43648
./ ~~, ..#
ItObert . Krawcheck
Florida BarNo. 128019
MIAMI 933612,17592420873
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE: eOULEVARD, SUITE 2500 . MIAMI, FL.ORIDA 33131-5340
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IN THE ELEVEN1H JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY,
FLORIDA
Case No.
Lower Tribunal Resolution No. 2005-48
SHEFAOR/TARRAGON, LLLP,
a Florida Limited Liability Limited Partnership,
Petitioner,
vs.
THE CITY OF A VENTURA, a
Florida municipal corporation and
[all persons who spoke at public
hearing]
Respondents.
INDEX TO APPENDIX
BILZIN SUMBERG BAENA
PRICE & AXELROD LLP
Attorneys for Petitioner
200 South Biscayne Boulevard
Suite 2500
Miami, Florida 33131-2336
Telephone: (305) 374-7580
Facsi~e: (305~~
.By: O~ ~
Stanley ~ice '.
FJ,O~idaB, No. 143648
By: . ' ~.,#
R'obert . Krawcheck
Florida Bar No. 128019
MIAMI 933612,1 7592420873
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE: BOULEVARD. SUITE 2500 . MIAMI, FLORIDA 33131-5340
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INDEX TO APPENDIX
Paee No.
1. Resolution No. 205-48, denying vested rights,
adopted September 6, 2005 and filed in the
City Clerk's Office September 7, 2005. ...........................................001-002
2. Petitioner's Letter of September 6, 2005
to the City Commission, introduced at vested
rights hearing, making special appearance under
protest and reserving all rights with regard to Vested
Rights process. ............,.......................... ...... ........................ ............... 03-004
3. Transcript of V ested Rights hearing, September 6, 2005.................. 005-085
4. Ordinances of the City of Aventura.
(a) Ordinance No. 2005-07 adopted June 7, 2005
imposing moratorium. .,.".",.,..',.", "..,."..'"...,..,.,." "."....,....,..., ,.., ".086-093
(b) Ordinance 99-10 rezoning Petitioner's
property to RMF4. ...........,....,.,..........................,......,.............. 094-098
(c) Articles of City of Aventura Zoning Code
(i) Article II "Definitions and Rules of
Construction." .............................................................. 099-112
(ii) Article V "Development Review Procedures".....(c)(ii) 001-022
(iii) Article VIII "Off-Street Parking, Loading,
and Driveway Standards," ............................... (c)(iii) 001-015
(iv) Article XII "Nonconforming Uses and
Structures." .......................................................(c)(iv) 001-003
5.
Memorandum from City Manager to City Commission
dated April 8,2005 pertaining to potential moratorium
and attaching April 8, 2005 memorandum from City's
Attorney to Mayor and Commissioners. ..........................................113-129
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cOO SOUTH BISCAYNE BOULEVARD, SUITE 2500 . MIAMI, F"LORIOA 33131-5340
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6.
Contents of hearing notebook introduced into the record by Petitioner's
counsel, Mr. Price at the vested rights hearing of September 6, 2005.
(a) Table of Contents to Hearing Notebook.................................. 130-131
(b) Agenda- The City of Aventura September 6,2005.............. 132-137
(c) Letter to Eric Soroka from Brian Adler, dated
August 18,2005, regarding Notice of Appeal of
Denial of V ested Rights.................................................................. 138
(d) Determination on Vested Rights Application
by City Manager executed August 17,2005...........................139-142
(e) City of Aventura Notice of Development
Permit and Development Order Moratorium
Advertisement. ......................................................................... 143-144
(f) Vested Rights Submittal- Lincoln Pointe.
Letter to Eric Soroka from Stanley Price,
dated June 8, 2005 with attachments. ....................................145-150
(i) Letter to Brian Adler from Joanne Carr
dated April 7, 2005, regarding Folio No.
28-2210-050-0020. ........................................................ 151-152
(ii) Affidavits of James M. Cauley, Jr., Jacques
Claudio Stivelman, Gilbert Benhamou. ........................ 153-156
(iii) Financial Expenditures.................................................. 157-159
(iv) Lincoln Pointe Tarragon Management, Inc.
Thirteen Month Income Statement April 15, 2005. ............. 160
(v) Letter to Joanne Carr from Carter McDowell
dated April 28, 2005......................................................161-164
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARO, SUITE: 2500 . MIAMI, FLORIDA 33131.5340
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(vi) Letter to Brian Adler from Joanne Carr dated
April 14, 2005 regarding Case File No.
04-SP-05 with attached letter dated 3/25/05
from Brian Adler to Joanne Carr. .................................165-167
(vii) Letter to Joanne Carr from Suzanne
Danielsen of Tinter Associates, Inc. dated
May 11,2005. .............................................................168-169
(viii) Additional Correspondence
(1) Letter to Joanne Carr from Carter McDowell
dated April 19, 2005 regarding the
appeal of Administrative Decisions........................... 170
(2) Letter to Eric Soroka from Carter McDowell
dated April 19, 2005 regarding the Appeal
of Administrative Decision Regarding Requirements
Related to Driveway Entrance to Lincoln
Pointe Property. ................................................. 171-173
(3) Letter to David Wolpin from Brian Adler
dated February 7, 2005 regarding
Application for Administrative Site Plan
Approval. ...........................................................174-192
(4) Letter to David Wolpin from Brian Adler
dated March 2, 2005 regarding improvement
on driveway on adjacent property....................... 193-197
(5) Letter to David Wolpin from Brian Adler
dated March 16,2005. .....................................198-200
(g) Letter to Claudio Stivelman from Joanne Carr
dated March II, 2004 regarding Land Development
Regulations, ...........................,...............................................201- 206
(h) Letter to Joanne Carr from Brian Adler
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200 SOUTH 61SCAYNE BOULEVARD, SUITE 2500 . MIAMI, FLORIDA 33131-5340
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dated March 31, 2004 regarding letter dated
March 11,2004 to Claudio Stivelman. ...............,...................207-209
7.
Items introduced into the record by Petitioner's attorney, Mr. Schulman at
the vested rights hearing on September 6,2005.
(a) Affidavit of James Cauley, President ofTarragon..................210-211
(i) Exhibit "A" to Affidavit - Purchase and
Sale Agreement & Amendment to Purchase
and Sale Agreement. ..................................................... 212-271
(ii) Exhibit "B" to Affidavit - Financial Statements
from Tarragon on Lincoln Pointe.................................. 272-280
(b) Partnership Agreement between Aventura Tarragon and
Shefaor. ............................................,..................................... 281-324
(c) Special Warranty Deed for Property. ......................................325-370
(d) SEC Filing for Tarragon Corporation. .................................. 371-432
8. Motion for Stay of Certiorari Proceedings Pending Outcome
of Related Litigation .............,...............,..,..'...............,...... ................ 433 -444
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MIAMI 933612,] 7592420873
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
ZOO SOUTH BISCAYNE BOULEVARD, SUITE 2500 . MIAMI, F"LORIDA 33131-5340
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RESOLUTION NO. 2005-48
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA CONCERNING VESTED
RIGHTS APPLICATION AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City Commission has heard the appeal of the City Manager's
denial of the Vested Rights application concerning Lincoln Pointe,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Section 1. Based upon the evidence submitted, the Commission finds that the
Applicant has not established vested rights under the Moratorium Ordinance,
Section 2. The Moratorium Ordinance shall continue to apply to the Lincoln
Pointe property,
Section 3. This Resolution shall become effective immediately upon its
adoption,
The foregoing Resolution was offered by Commissioner Diamond, who moved its
adoption. The motion was seconded by Mayor Gottiieb. and upon being put to a vote,
the vote was as follows:
Commissioner Bob Diamond yes
Commissioner Billy Joel no
Commissioner Harry Holzberg no
Commissioner Michael Stern yes
Commissioner Luz Urbaez Weinberg yes
Vice Mayor Zev Auerbach yes
Mayor Susan Gottlieb yes
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Resolution No. 2005-48
Page 2
PASSED AND ADOPTED thl, " ,., of S.ptem""'. 2005 ~
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"'SUSAN GOTTUEe, MAYOR
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CITY ATTORNEY
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Filed/; he Office one Citr Clerk this 7th day of September, 2005.
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
A PARTNERSHIP OF PROFESSIONAL ASSOCIATIONS
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 . MIAMI, FLORIDA 3.3131-63<40
TELEPHONE: (305) 37<4-71580 . FAX: (305) 37.....715.3
E-MAIL: INf'OOBILZIN.COM . WWW.8ILZIN.COM
MIAMI. TALLAHASSEE
September 6, 2005
Madame Mayor and
City Commissioners of the City of Aventura
Government Center
19200 West Country Club Drive
Aventura, Florida 33180
Re: Lincoln Pointe (for distribution at time of hearing)
Dear Mayor Gottlieb and Members of the City Commission:
This firm represents Shefaorrrarragon, LLLP in connection with the Property located at 179
NE 31 st Court, A ventura, Florida, commonly known as Lincoln Pointe (the "Property"), The Property
is adversely impacted by City of Aventura Ordinance No. 2005-07 ("Ordinance") providing for a
moratorium and what is labeled a vested rights procedure, and by other actions, of the city delaying
re-development of the Property, It is our position that the Ordinance is invalid and deficient in
various respects and that our client has been damaged and continues to incur damages both by the
Ordinance and by other delays. Nevertheless, our client continues to cooperate with the City by
seeking an amicable resolution of various issues, and also by exhausting any potential administrative
remedy or opportunity for correction, We have therefore filed a vested rights application and taken
an appeal to the City Commission from the decision of the City Manager. We do so by special
appearance, under protest, and to avoid any potential claim that we have not exhausted
administrative remedies.
We expressly reserve, and do not waive, any and all rights, objections and claims pertaining
to the ordinance and to the vested rights process. We reserve the right to seek any and all judicial
relief and remedies at any time in either the state or federal courts, Our objections and claims
include, but are not limited to, the invalidity of the moratorium, the lack of authority and jurisdiction
of the City to "adjudicate" all types ofvested rights under the ordinance and to otherwise attempt to
limit our right of access to the courts and to judicial remedies, the insufficiency of the elements of
vested rights as set forth in the ordinance, deprivation of procedural and substantive due process, and
the violation of our client's constitutionally protected right to equal protection of the law,
MIAMI 923742,3 7592420873
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B~LZIN SUMBERG BAENA PRICE & AXELROD LLP
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September 6, 2005
Page 2
We repeat: (a) our desire to achieve a prompt resolution of this matter; and (b) the fact that
we have filed, and are going forward, with a vested rights application and appeal only under the
conditions, reservations, and objections expressed herein,
Very truly yours,
~7? e~-
Stanley B. Price
SBP/mc
Ene!.
cc: Eric Soroka, City Manager
David Wolpin, City Attorney
MIAMI 923742,3 7592420873
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8 19200 West Country Club Drive
Aventura, Florida 33180
9 Tuesday, September 6, 2005
6:00 p.m. - 9:00 p.m.
THE CITY OF A VENTURA
COMMISSION MEETING
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CERTIFIED COpy
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SUSAN GOTTLIEB, MAYOR
COMMISSIONER ZEV AUERBACH
COMMISSIONER BOB DIAMOND
COMMISSIONER HARRY HOLZBERG
15 COMMISSIONER BILLY JOEL
COMMISSIONER MICHAEL STERN
16 COMMISSIONER LUZ URBAEZ WEINBERG
17 CITY MANAGER ERIC M. SOROKA
CITY CLERK TERESA M. SOROKA
18 CITY ATTORNEY DAVID H. WOLPIN, ESQ.
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2 APPEARANCES:
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STANLEY B. PRICE,ESQUIRE
7 BILZIN SUMBERG BAENA PRICE & AXELROD, LLP
200 S. Biscayne Boulevard
8 Suite 2500
Miami, Florida 33131
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MAYOR GOTTLIEB: Now we will go back. You
can tell Commissioner weinberg she can return.
Aright, David, we want to discuss this
consideration and the appeal.
MR. WOLPIN:
t will read the title and the
City Manager will have a statement.
Item 6A, consideration of property owner's
appeal of denial of vested rights under
moratorium ordinance concerning Lincoln pointe
Development..
At this time the city Manager would just
like to briefly introduce his decision that he
made in the matter in accordance with the city
Moratorium Ordinance.
MAYOR GOTTLIEB: You are speaking for the
ciity staff report now, right?
MR. SOROKA: This is actually a different
item than a regular item. What this is is
under the moratorium ordinance developers have
the opportunity to file an application for
vested rights. That was one of the procedures
that we built into the ordinance.
This particular developer in a complaint
filed a vested rights determination application
on June 7, 2005. When that application comes
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in the administration reviews the application
in consultation with the City Attorney and
renders a decision whether it's vested or not.
Then they have the opportunity to appeal the
City Manager's decision based on that same
ordinance.
As I said, we reviewed the evidence that
the applicant submitted very extensively and
based on the criteria that's set forth in the
ordinance we determined the applicant has not
established vested rights in the subject
property.
The applicant failed to demonstrate that a
government act or a government approval was
obtained prior to the effective date of the
moratorium ordinance. The applicant failed to
demonstrate that the applicant detrimentally
relied in good faith by making a substantial
change in position or incurring such extensive
obligations and expenses. The applicant failed
to demonstrate that it would be highly
inequitable to deny the rights to complete the
development.
The April 7, 2000 letter which they refer
to, the 2004 letter, that the applicant states
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it relied upon as being a governmental act of
development approval was simply a confirmation
of the existing zoning and does not constitute
a governmental act of approval by the City.
Pursuant to the moratorium ordinance the
applicants filed an appeal to the City
Commission regarding my decision to deny the
vested rights and maintain that the moratorium
remain in effect to this property.
MAYOR GOTTLIEB: Thank you, Mr. Manager.
Are there any questions from the Commission
before we begin the public hearing part of
this?
No.
Alright. Let's open it up to the public
hearing. Will the applicant please state your
name and address for the record and give any
evidence you have.
MR. PRICE: Thank you very much, Madam
Mayor, members of the Commission. My name is
Stanley Price. I'm with the law firm of Bilzin
Sumberg Baena Price & Axelrod, 200 South
Biscayne Boulevard, Miami, Florida. I
represent a limited liability partnership,
Scheafour Taragon, who is the owner of the
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property. With me is my co-counsel Cliff
Schulman with Greenberg Traurig, and my
partners Brian Adler and Rober Trauchek who are
here to help with the presentation.
Initially, let me state for the record
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that we have to make a record, and I say most
7 respectfully while we disagree with the
8 Manager's decision that does not mean we
9 disrespect, and we have high regard for the
10 Manager as well with the advice of the City
11 Attorney. We just differ with their opinion.
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I would like to layout a presentation
this evening which will address why we differ
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from their interpretation.
In addition, most respectfully, we reserve
the right to challenge the moratorium that was
imposed by the City. We do not believe the
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18 moratorium properly addresses the concerns that
19 were raised by the commission, and we reserve
20 our rights to challenge that in a separate
21 proceeding.
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communicate with you prior to this meeting, I
have submitted a letter to the Mayor and
Counsel and I have given it to the Clerk which
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reserves our right to challenge whatever we
need to challenge as a result of this process.
We are here on special appearance.
We do not
believe that we should even have to be here
based upon the facts of this case, but I will
proceed to address the issues before you. And
I trust once again we will do it in a fashion
that will just layout the facts that we
believe to be relevant to this case.
The nature of this hearing is an appeal of
the Manager's decision relating to vested
rights. As you know, you have a process. You
enacted a moratorium.
Your city Attorney ~n
his memorandum dated April 8, 2005 did a
wonderful job explaining what a moratorium is,
what the rights of the parties are, the need to
have a vested rights/equitable estoppel
proceeding as part of your ordinance, that is
what constitutes a legally enacted ordinance.
Where we take issue with the City in
regards to this ordinance is that you have
adopted a series of standards which claim to be
equitable estoppel rather than vested rights,
but then you put in a separate provision which
is different, most respectfully, than the City
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Attorney's opinion to you on April 8, 2005.
On page B of that opinion the City
Attorney lays out the test for equitable
estoppel, and that is, a good faith reliance
upon an act or omission of government resulting
in an expenditure of funds and a change of
position.
We claim that we have met all of that
criteria. We claim, most respectfully, that
the City either intentionally or
unintentionally delayed the processing of this
application to delay this until a moratorium
ordinance was created. We will layout the
facts to demonstrate that to you.
r will take approximately ten minutes of
the presentation, Mr. Schulman will take the
remaining period of time.
Specifically, as any responsible developer
would do in terms of the going forward with a
plan of development within a municipality, the
first stop you make is at your Community
Development Department or Planning and zoning
Department. You want to know what your rights
are. You want to know what rights you have
inherent in the property.
,
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So last April we inquired of your
Community Development Department in regard to
what is the zoning on the property and what
rights do we have in regard to that zoning.
The property is about 8.77 acres.
It's
located at 17900 Northwest 31st Court in the
City of Aventura. The zoning letter that we
got, and once again we understand that is not a
development permit, but the zoning letter that
we received indicated that we were able to
develop up to 60 units per acre which would
permit 526 dwelling units on this property and
we were permitted under your code to build a
building not to exceed 40 stories or 400 feet.
Based upon that letter substantial dollars
to the tune of $41 million was expended to
purchase this property. We had constant
meetings with your professional staff. We
filed plans with your professional staff back
in December, and our original plan called for
us, as many of you are aware, there are four
low rise buildings on this property, the rental
units. Our original plan was to preserve two
of the buildings on the site and build one
tower on this property.
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After discussions it with Staff we filed
that application. After we filed the
application we were advised for the first time
that the interpretation of the City is that if
you affect any portion of a piece of property
you must bring the entire property into
conformity with your zoning code.
I don't believe your code says that, but
my clients after we cogitated in regard to that
statement we went back to the drawing board.
We felt rather than have to -- and because
many of the units at Lincoln pointe do not meet
the minimum square footage requirement under
your code that exist today, and because the
parking spaces are not of the size that are in
your code today, the City was requiring us to
go back and re-stripe all the parking spaces,
build additional parking spaces in the new
tower for the existing building and file for a
variance, which under your code requires a
legal hardship, a variance as to the size of
the individual units.
After reviewing that opinion of Staff and
determining at that point not to challenge that
legal conclusion of staff we went back to the
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drawing board and we gave notice to the tenants
in that building to vacate the property, and
Mr. Schulman will touch upon what that cost,
and came back with a new plan for one high-rise
building on the site.
That application was filed and under your
process we met with Staff and at first meeting
of Staff we were told you can't go forward
because we have zoning in progress.
I said,
zoning in progress as to what? Said, well,
zoning in progress as to our parking
requirements as to garages in buildings and
therefore you can't go forward because we have
zoning in progress.
Approximately 50 days later, after we
demonstrated to Staff that the discussions
relating to parking garages in this city were
only addressing commercial structures and not
residential structures, they finally agreed
that zoning in progress should not apply to
this property in regard to parking.
50 days,
50 days to convince Staff of something that
Staff should have a handle on.
So we started processing again.
And we
are waiting for your traffic consultant. We
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are waiting for your police department to
comment on our application. An additional 60
days goes by. Mr. Schulman and I do our work
in the City. We know of no project that I have
ever handled that took 60 days to get a traffic
report or a police report. We get police
reports in five to ten days. But 60 days go
by. Is that a coincidence or is it the fact
that the issue of moratorium has surfaced as a
campaign issue in this City.
And what has occurred? We first were
delayed 60 days and then another 60 days and
then finally we are told, you can't go forward
because the driveway going into your project
has to be at least 50 feet in size.
We ask where is this interpretation coming
from? He says, well, we believe all streets in
the City have to be at least 50 feet.
Now, on three separate occasions over a 45
day period we submit three detailed letters to
the City showing them that your own code
provides for driveways into projects should not
exceed 36 feet, which is what we have. We have
shown,them the case law on the subject matter
and we point out most respectfully to your
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Staff that the driveway in question is not part
of our plan.
It's not on our property, it's
not owned by us and in J.968 and in 1969 a
variance was obtained when the original
williams Island plan was submitted to the
County to permit this size roadway in the City
which is now the City of Aventura as part of
the entire williams Island development which
included Atlas Terminal, which includes now
Lincoln pointe, which includes what is now
Williams Island and the like.
There was one
comprehensive rezoning of all of this property
back in '68 and '69.
We asked on three separate occasions in
writing, and I have submitted all of this
documentation, tell us where we are wrong. The
response was deafening.
Not one of the three
letters has ever been officially answered by
the City.
We got verbal confirmation, no, we want
you to go to 50 feet and we then point out most
respectfully to the City that your code,
Section 3J.-171 and 31-172, which deals with
driveway standards and this is what this is,
provide that the maximum widths of any driveway
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for multi-family residential development shall
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not exceed 36 feet in width.
can be. Yet staff says no.
It's as clear as
You need a
4
variance.
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We also point out to them, most
respectfully, that Section 31-3B5, which by the
way is totally emasculated by your
interpretation that any time you touch any
portion of the property you have to bring it in
total conformity with the code, you have an
entire section of your code on nonconforming
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uses.
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Nonconforming uses are uses which were
legal at the time of the enactment but because
of a change in code no longer are permitted.
We have a 1968, 1969 resolution that
permitted this driveway in this configuration.
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But once again, let me repeat to you.
The
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driveway in question is not on our property.
It's not owned by us, it's not on our site
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plan.
It's a connecting driveway to get to
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Williams Island Boulevard.
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This is tantamount to telling the Aventura
Mall if they add additional square feet to the
mall that they have to improve that road
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because there is a likelihood that people who
will go to the additional stores in the mall
will have to take that driveway, that private
driveway.
This, most 'respectfully, is a variance
free project. The purpose of this hearing
tonight is not to determine whether this is a
good project or this is a project that the
public should have input as to whether they are
to approve it or not to approve it. This
hearing is about your own code and the sanctity
what equitable estoppel is all about.
Let me point out two other points before I
sit down. The City has felt compelled that
zoning in progress is now a means of achieving
an end which we say is illegal. The City
presently is using its zoning in progress
ordinances to create illegal moratoriums in
regard to processing.
A case in point. On the 22nd day of April
2005 the City Clerk published in a newspaper of
general circulation ~ notice of zoning in
progress. Now, zoning in progression is
supposed to acquaint people in this community
and property owners in this community that a
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specific set of ordinances are going to be
enacted so be careful if you start processing
an application because you may get caught up.
What is your zoning in progress code
excuse me, your zoning in progress note saying.
This is to inform the general public what's
corning. Amendments to the land development
,
regulations are being considered and may be
proposed relative to redevelopment guidelines.
Redevelopment guidelines. Now I could
stand up here for five hours and tell you what
possibly could go into redevelopment
guidelines, but the general public is not
informed, has no reasonable way of ascertaining
,
what you are thinking about.
If you were talking about redevelopment
guidelines as to height that's fine, say it.
But redevelopment guidelines is such a broad
term that no reasonable person could ever
ascertain what you mean by it, and yet staff is
telling people now that you may file an
application, but if we change our code in the
future without telling them specifically what
they are changing you are going to be stuck.
That's not the function of zoning in progress,
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it should not be the function of zoning
in
progress.
Most respectfully, I had this
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conversation with the City Attorney and when I
saw this first come out and once again I don't
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know what has occurred since that conversation,
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but we are told that this also is going to face
us directly.
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The sum and substance of our argument is,
most respectfully, once again, that we believe
that under case law of the State of Florida
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that you have a project as a matter of right.
You can't be intentionally or unintentionally
delayed for the creation of a moratorium to
prevent you from developing your property.
Our equitable estoppel is predicated upon
what we believe, once again, bad faith by the
City in processing our application.
I would just like to read to you one case
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from the Third District Court of Appeal.
The
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case is Dade County versus Jason, it's a 1973
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I'm sure Mr. Wolpin is familiar with the
case.
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case, but it's 278 So. 2nd 311.
In that
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particular case an individual came into Dade
County and said, I want to develop a high-rise
building on Key Biscayne.
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COMMISSIONER DIAMOND: Do we have a copy
of this opinion?
MR. PRICE:
I'll be happy to hand it up to
you. Can I just read from it?
COMMISSIONER DIAMOND:
Please go right
ahead.
MR. PRICE:
In this particular case the
developer came forward with a high-rise
building in Key Biscayne, was told he had
zoning to go forward with it, he submitted
plans, the plans did not require any variance
and he shows up at the counter at 11:30 in the
morning to submit an application for his
building permit. The Clerk says, I'm going out
to lunch now, please come back right after
lunch.
He comes back after lunch and at 12
o'clock that afternoon the County Manager
imposed a moratorium on development to Key
Biscayne. The courts said very clearly the
applicant should have been entitled to a permit
authorizing the construction of the number of
units that would have been permitted to
construction if the permit had been issued when
they were entitled to it.
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We state respectfully the driveway issue
can't be the reason we are being held up at
this point in time.
It's not our property.
It's not on the application. Everything that
we have done is in good faith. We have no
variances as a result of our application and we
state most respectfully -- I'm sorry, that we
believe we through the doctrine of equitable
estoppel has relied on good faith on an act or
omission of government and we have
substantially, substantially, we are talk~ng
about now out-of-pocket expenses of well over
$1.5 million and potential sales of this
property of well in excess of $100 million.
We take this very, very seriously. We
trust that you would too and I thank you for
the opportunity to address you.
MAYOR GOTTLIEB: Thank you, Mr. Price.
Mr. Schulman.
I
I
MR. SCHULMAN: Madam Mayor, members of the
Commission, Cliff Schulman, same suit, 1221
Brickell Avenue, Miami, Florida.
Stan and I agreed that today Stan would be
the good guy and I would be the, bad guy.
If he
was the good guy, boy you got something coming.
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This is a very serious matter, no doubt
about it, but Paul Harvey would also tell you,
let me tell you the rest of the story.
We have a series of documents that I asked
my associate, Javier, to give Mr. Wolpin and
the City Clerk.
I'm not going to go through
them extensively, but by affidavit of James
Pauly, who is here today rather than Taragon
South, we prepared a number of documents to
tell you what the rest of the story is.
Basically, one of the elements or some of
the elements that we have to meet if we could
focus in on that, the ordinance requires us to
show you there has been a substantial change in
position or that we have incurred such expenses
or obligation and expensive one that it would
be highly inequitable not to allow a project
like this not to be approved.
Let me emphasize what Stanley indicated.
To continue to go through your review process,
because right now your moratorium puts a halt
on any further review, whether it be
administrative or otherwise. We are asking you
to allow this project to continue with the
review. We will show you by a series of
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3
documents, which include the financial
expenditures of this developer since acquiring
this property. The amount of rentals that were
lost during the course of vacating the
property, the deed to the property, the
contract of -- the mortgage for the property
and the purchase and sale agreement as well as
the filing with the securities and Exchange
Commission which are in the packet with Mr.
Wolpin. They will show you this. Here is the
\
minor change in position that this developer
basically took based upon the acts or omissions
of the City. Number one, they acquired the
property for -- let me correct Stanley, $47
million approximately a year and a half before
your moratorium, and I will show you the time
line.
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They received a mortgage for the property
for $40 million. They terminated approximately
50% of the leases of the people who are tenants
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21 of the property in anticipation of the property
22 being vacated and redeveloped. They entered
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into a sales agreement to sell this property
for $85.2 million, which sale is jeopardized by
what is taking place with the moratorium.
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They reported to the SEe that the property
was developable as was indicated by the letter
in April from the City for 526 units.
~
They lost in rentals alone $1.2 million
through July of 2005. They expended to date
excluding interest costs on the mortgage $2.1
million. They are, of course, obligated if
they can to sell the property for $85.2
million, but you may find this hard to believe.
If this moratorium is not lifted, if this
moratorium is staying in effect, they will lose
a valid and outstanding contract to sell this
____, __u,_____
property for $85.2 million which would be a
loss to them of $38 million.
What are we talking about when we talk
about equities. The equities that Stanley
mentioned to you, we use highfalutin words,
some of the courts have gotten down to what is
really this vested rights equitable estoppel.
One court said vested rights and equitable
estoppel is very simple to understand. You
don't change the rules of the ball game in the
9th inning. When you are losing or when things
are looking bad, you don't say, okay, instead
of three outs now you got four outs or two
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,
outs. That when government asks people to come
to them and basically says we want your
development, we want zoning, we will tell you
what your rights are, you don't say after
someone expended $47 million, taken out a $40
million mortgage, entered into a contract for
purchase and sale to sell the property, oh,
never mind. As Gilda Radner would say, never
mind. It don't work out like that.
So what happened in this case as will be
shown by this very brief time line. The
purchase and sale of this property for $47
million took place in February of 2004, a year
and a half before your moratorium.
The joint venture was formed and the
mortgage was obtained in August of 2004 and the
property was basically deeded in August of
2004.
And in April of 2005, two months before
your moratorium, the present owner entered into
a contract to sell the property assuming 526
dwelling units pursuant to the letter of the
City and the FAR that was permitted at the time
for $85.2 million, and the first reading of
your moratorium ordinance wasn't until May, and
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your moratorium did not go into effect until
June.
So the property was sold, mortgaged,
contract, purchase and sale before your
moratorium ever took effect, but now it's
captured in the 9th inning bya change in the
rules of the ball game.
Let me tell you what that means in very
blunt terms. There are certain remedies that
people have when government does these things.
And in this case there are really three, I
believe, available options.
One is that you will vote unanimously in
favor of our vested rights appeal tonight.
Okay, next. (Laugher.)
Litigation is always a possibility.
That's not a threat, that's a fact, Jack,
especially when the numbers of dollars that we
are talking about could fund my law firm for at
~east a day and a half. Big money.
Three, negotiation.'
Let's deal with the one called litigation.
I used to be a litigator. My clients always
would say to me, what are the guarantees? What
can you guarantee me about litigation?
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Let me tell you about litigation in this
case and what the guarantees are. One,
litigation will happen, of that there can be no
doubt. There is too much money involved. The
lenders may foreclose on the property. There
may be even more drastic financial consequences
as a result of the defaulted $40 million loan.
Litigation, you will find, and I'm sure
the Mayor knows this having lived in litigation
city and been on the Board of the City of Miami
Beach at one point in time, is time consuming.
That's the easy part. It's costly, that's a
guarantee.
Anybody who has litigated will tell you
that the results are unpredictable. You have
one of the finest city attorneys not only in
this county but in this state.
If he gives you
an opinion you will 100% win any litigation I
would be stunned, because he is too good of an
attorney. Litigation is unpredictable. Anyone
can win on any given Sunday.
It's true in
football and it's true in litigation.
Next guarantee. Justice for whatever the
reason, however we define justice, is not
always achieved unfortunately in our system.
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But it is guaranteed that the potential results
of any such litigation would be enormous,
drastic whoever wins and whoever loses.
If the City wins the consequences to the
developer, the banks, the buyers and the
sellers would be enormous. And if the City
loses the impact upon the electorate, the
taxpayer, would likewise be enormous with
numbers that we are talking about.
Litigation only disrupts businesses and
the goings of government, we know that, and it
creates a negative atmosphere in the community
and of course I would be bereft in my duty to
you if I did not say the only one and the only
one who wins in litigation are the lawyers.
That's the only truism as to who wins.
And so we got either a favorable vested
rights determination that may be a result
tonight. Litigation which is a guarantee if
not, or the possibility of sitting down and
trying to work things out.
We tried to meet with the Manager and City
Attorney and with respect to both of them, in
good faith, they told us they needed to come
here, we needed to make a presentation to you
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to try to impress upon you the importance of
this.
This City has been very blessed. The
amount of litigation because of damn good legal
advice you got from the City Attorney this City
had during the last ten years had been minimal,
very minimal. This is a big one coming your
way. It's not a category one this is a
category five, of that I can guarantee you
because of the enormity of the numbers which
are involved.
We believe, most sincerely, we have met
all of your criteria. we believe, number two,
that the drastic possibility here of litigation
is not something that any of my clients nor I
nor Stanley would enjoy, but nonetheless that
unfortunately may be the only way to solve this
particular matter, although experience has
shown in other places that the best litigation
is no litigation.
That sometimes negotiation
is the best way to solve a problem, and the
issue of settlements are when both people walk
away from the table mutually dissatisfied.
That is the definition of a good settlement,
okay. But litigation someone is going to win
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and someone is going to lose and it's a crap
shoot.
We believe it would be highly inequitable
for this City to have led this developer into
this situation where all the developer is
doing, keeping in mind that this property was
originally zoned for over 600 dwelling units by
Miami Dade County.
Instead only approximately 250 rental
units, small units were built, and the proposal
before the City would be for 526 dwelling
units, well below the original zoning by Miami
Dade County for this particular property.
Eastward ho and redevelopment is the
f~ture of, this City as well as others in the
urban core rather than urban sprawl and this
City passed the resolution urging the Dade
County commission to oppose attempts at urban
sprawl and instead to encourage urban
redevelopment.
Well, this is your first project of major
urban redevelopment in this City, and
unfortunately it may be also one of the first
projects that results in major litigation.
Respectfully, we would ask you to
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favorably look upon our vested rights
determination and grant our appeal and overturn
the City Manager. Failing that, send the
parties back to the negotiating table to try to
work this out to avoid the only sure winners
being the lawyers in this particular matter.
I thank you for your attention. We are
here to answer questions you have.
MAYOR GOTTLIEB: Thank you, Mr. Schulman.
As always very eloquent as was Mr. Price.
Any other comments? Any other people who
would like to speak, members of the public in
favor of this?
And normally I give you three minutes.
Since the two attorneys had more time we will
try to be lenient and we will try to be fair.
Anyone who would like to speak opposing the
project come to the podium, give your name,
your address Mr. Price.
MR. PRICE: I would just like to add to
the record in this case the videotape of the
first and second readings of your moratorium
ordinance and the report of your police chief
in regard to traffic and the report from, I
believe, the City Manager with regard to that.
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MAYOR GOTTLIEB: Fine, that would be fine.
Again, this is for the record. There is a
court reporter and that's why you are adding
all these things.
Please, when each one of you speak I would
appreciate it if you would not repeat what was
said by the person before you. Thank you.
Your name.
MS. SAUNDRY: My name is Della Saundry,
7000 Island Boulevard.
In all deference to the
esteemed members of Greenberg & Traurig, I
would like to know is it possible, as has
happened so many times before, that the
developer entered into a bad contract without
having all of his papers together? Is it
possible that the Commission has overlooked
something?
MAYOR GOTTLIEB: That's a question. Thank
you.
Please, your name.
MS. ROELICH: Leslie Roelich.
I live at
the Clipper Building, Biscayne Cove, 18151
Northeast 31st Court, and I would like to say
that you think you are a force five hurricane,
Mr. Schulman, you just wait, because I'm going
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to speak not from the paper, not from the rule
book, not from the code book but from the
heart.
I have lived in Biscayne Cove for 16
years. I have seen Williams Island Boulevard
go from being a lovely quiet street to being a
thoroughfare with duelling Jaguars and
Rolls-Royces and Jeep Cherokees careening into
each other, people walking their dogs in all
directions, highrises going up every which way.
I nave seen the corner of Biscayne
Boulevard and Williams Island Boulevard become
a parking lot in the morning where cars
congregate half a mile long snaking to get out
to Biscayne to get to their respective
destinations.
I have seen this little wonderful 36 foot
driveway, or whatever it is that you say is
adequate for your 526 units, being totally
inadequate to the people who live in Biscayne
Cove and thereabouts.
(Applause. )
And I have seen it filled with water at
the first hint of a storm. I have seen people
walking their dogs howling on the curbside
because people are coming through 50 miles an
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hour.
There is no place to expand it, to widen
it. There is no place to lengthen it.
I don't
know where you are going to put the people in
those 526 units, but you know where I would
like you to put them right now.
Now, I would like to address the problem
of Hurricane Katrina, the late unlamented
Hurricane Katrina.
This is an island on which you are
proposing to build your 526 unit 40 story
building. That island is now just on the verge
of being over populated.
I understand right on
Williams Island itself is a 70 story building
going up, The peninsula is starting to build
its second tower, and that is going to add more
to the congestion, more to the traffic. As you
know if you have gone down Williams Island
Boulevard or up Williams Island Boulevard, it's
basically a two lane highway with a median
filled with trees.
MAYOR GOTTLIEB: Please try to wrap it up.
MS. ROELICH: Okay, sure.
If there is an
over 40 mile an hour wind and I came home
during Hurricane Katrina that night and the
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trees were already over the road, how are you
going to get those people off the island, how?
How are you going to get them back on.
Ilm going to tell you if this Council
passes the resolution and lets you build your
40 story tower they know where we are going to
speak and that will be at the ballot box and
you will all be out of a job coming next
election, okay. (Applause.)
MAYOR GOTTLIEB: Okay. Try to keep it on
the subject of the building and obviously you
are all coming here against.
MR. MARSHAL: My name is Keith Marshal.
I'm general counsel for Biscayne Cove
Condominium Association.
MAYOR GOTTLIEB:
Can't hear you.
Speak
louder into the microphone.
MR. MARSHAL:
I'm Keith Marshal, general
counsel to Biscayne Cove Condominium
Association. We are here tonight not to make a
legal argument and challenge eminent land use
planning attorneys, but we have the president
of the Biscayne Cove Condominium Association
that would like to bring some factual matters
to the attention of the Commission.
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MAYOR GOTTLIEB: Thank you very much.
MR. MARSHAL:
I want to introduce Madeline
Giordello, who has been a resident of Biscayne
Cove for 17 years, and for the sake of
expedience we all know lawyers know what
leading questions are, but it's going to serve
a useful purpose here so as not to protract the
evening.
Madeline is under oath so I'm going to
repeat the information was provided to me by
Biscayne Cove for the sake of expedience.
Q There are 592 units in Biscayne Cove now.
A That's correct.
Q You park over a thousand cars?
A That's correct.
Q Your demographics are changing from
retirees to active young couples who have children
in school and are two income families going in and
out of that Northeast 31 Court daily, morning and
afternoon?
A That's correct.
Q 31st Court is a narrow two lane road?
A Yes, it is.
Q That floods dramatically in rain fall?
A Yes.
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Q You find that leaving the premises there
is a light at the corner and sometimes it takes 3 or
4 lights before you can get through?
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That's correct.
5
You are in a flood zone and in an
6 emergency you have to negotiate that flooded road
7 through Northeast and that's the only egress and
8 ingress that you have?
9
A
That's true.
10
Q
You feel that an additional 2 or 300 units
11 at the end of your street which is Lincoln pointe
12 would aggravate the conditions that you are faced
16
with today?
A That's true.
Q Is there anything you would like to say to
the Commissioners?
17
A
Yes. Madeline Giordello, president of
18 Biscayne Cove. To allow a building this size,
19 whether it's 40 stories, or 20 stories in this area
20 we feel would jeopardize all of our residents in
21 Biscayne Cove, not only of Biscayne Cove but the
22 surrounding areas.
23 The impact of this project would bring
24 tremendous safety issues. We have, as the young
lady said, tremendous amount of cars coming in and
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out of our driveways as it is. We have elderlies
taking their walk, walking their dogs, children
3 riding bicycles. This would be disastrous with an
4 additional 500 some odd apartments going up.
5 Also the health issues, the safety
6 issues. Not only the, light on 31st Court but the
7 light on Williams Island Boulevard at 2:30, 3:30
8 in the afternoon you cannot get through that road.
9 It's just horrendous. Total gridlock.
10
This gridlock would cause disaster as we
all know if we had to evacuate the area, just like
what happened with Katrina there are other storms
coming and they will keep coming. This will be
devastating to the area. We need your help from
the City of Aventura, the Commissioners, to not
allow this building to be built on this particular
11
12
15
16
17 land. It would really be devastating to all of
18 us. And I think you thank you for your time.
19 (Applause.)
20
MAYOR GOTTLIEB: Thank you very much
21 Mr. Marshal.
22
MR. MARSHAL: Biscayne Cove is not opposed
to development per say, but the infrastructure
23
24 needs to be there to accommodate it. At this
point we feel it's not.
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MAYOR GOTTLIEB: Thank you, Mr. Marshal.
Mr. Price, you have already had your --
MR. PRICE:
I have to state an objection
for the record.
MAYOR GOTTLIEB:
I have to give you the
right to object for the record.
MR. WOLPIN: He has the right to object.
MR. PRICE:
Standing objection. Once
again, we are here tonight on an appeal of the
Manager's decision on vested rights, not
whether this is a good project, whether the
people like it or not. Any of that testimony
is irrelevant to the issue before you tonight.
That's a standing objection.
MR. WOLPIN: Ms. Mayor, just so it's clear
on the record, as the Commission knows the
decision before the Commission tonight is
whether or not to uphold the City Manager's
decision that the applicant has not established
vested rights and that therefore the temporary
moratorium needs to apply to this property.
MAYOR GOTTLIEB:
I appreciate that,
Mr. Wolpin, but nothing says we cannot as a
Commission listen to these people.
MR. WOLPIN: Not at all.
Please proceed.
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MAYO~ GOTTLIEB: I'm going to proceed that
way. I want to hear what these people have to
say.
MR. TOWER: Good evening. My name is
George Tower.
I live in 7000 Island Boulevard,
Williams Island.
I would like to address some things. I do
think it's very relevant for people to stand
up, for taxpayers to stand up and to express
their opinions.
I would like to address two issues here
this evening. Number one, the fear issue as a
motivational tool for the developer to get what
they want.
I stood before you before and I
have not agreed with some of the things you
have done, but regardless whatever side of the
fence I sit on, the one thing that I have never
seen this Commission do is kowtow in fear and
to allow itself to be manipulated by anyone
holding the threat of a lawsuit over it.
That's the first thing. Your track record
in that respect is pretty well established.
Number two, there has been a lot of
mention and discussion about vested rights.
And again, I'm not going to approach this from
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a legal perspective since I'm not an attorney.
But from a humanitarian perspective I must
wonder what about the vested rights of the
taxpayers who comprise this good city. What
about our rights for our welfare, for our
safety, for our health, for maintaining the
quality of our life.
It appears that this at its very core is a
very, very simple equation. On one hand you
have what may be perceived as the need for
profit or greed or whatever label you give it
on the part of the developer. On the other
side of the fence you have the need for
citizens who continue to pay their taxes
religiously to basically hope that they will be
protected not from other people's need to make
a profit but so that they will have a sense of
safety when they walk across the street. I'm
not going to go down the whole list of what the
issues are, the other speakers have addressed
them quite eloquently.
But all I say is for me, I think I speak
for a lot of people in this room that the value
of one human life, whether it's an ambulance to
rescue the person having a heart attack,
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whether it's someone who cannot evacuate form
the island in the event of flood or whatever is
worth not only $47 million not only $85 million
but it's in fact priceless.
So the decision before you this everything
is one between a price tag and the value of
human life, which is priceless. Thank you.
(Applause. )
MS. STONE: My name is Barbara Stone and
I'm an attorney. I'm here on behalf of my
mother and on behalf of my brother who live in
Biscayne Cove.
I'm also a real estate broker
and I live in Manhattan and I have been before
many city planning meetings and I have never
seen such a free for all like we are
experiencing in this city.
What is going on right now with regard to
development is what could only be called a
frenzy of development. Every little square
inch of land that someone could possibly get
their hands on is being grabbed up for
development in total and complete disregard for
public interest of the people that live here
and their welfare as well as for the zoning use
ordinances.
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This City could be the standard by which
all other communities are built.
It's a young
city, they could control the growth, pay
attention to the community's needs and instead
what's happening is that we got greedy
developers coming in and grabbing ahold of
whatever they want and doing whatever they
think that they can get away with and
complaining later on.
These are is sophisticated guys. They
made a bad bargain. So be it, I applaud this
prior gentleman who came out and said, why
should 50% of this proposal, their presentation
be made in trying to intimidate the
Commissioners by threatening litigation.
The community owners could do the same
thing and say, well, on the other hand we will
threaten litigation if this is passed.
As we heard this evening we heard a great
deal of talk about Katrina, which basically
wiped out an entire community. What hasn't
been put on the table as much is the fact that
the city officials knew that the levees that
were built in New Orleans were built too low
and they were heading for a national
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catastrophe. They needed some kind of support
and construction that was not done.
Here it's put directly in front of us. We
are potentially facing a situation where we
don't have the infrastructure. We don't have
the roads for our own citizens to come in and
out much less have emergency vehicles coming in
and out of these one lane highways. We would
be completely blocked off if we have a storm
and the trees are knocked down, or if there is
electrical poles knocked down.
There is no possible benefit or advantage
to the community by allowing this developer to
continue. As I said, they made a bad real
estate deal and they have to live by it. There
is no reason
we put a moratorium in place
and there is no reason to have this chipped
away.
Thank you for your time. (Applause.)
MAYOR GOTTLIEB: Thank you very much. If
it has already been said you don't have to feel
like you need to repeat it. We have good ears.
We are hearing everything.
MR. FABRIC: My name is Bob Fabric, 15
year resident 2000 building Williams Island. I
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have a question to address, a simple question
regarding the driveway being 35 or 36 feet
versus 50 feet, and with all due respect to our
esteemed colleagues here I would like to know
whether or not in this residential development
there is going to be any commercial business
such as a spa that charges for profit. A
coffee shop that is entitled to a profit, a car
wash or dry-cleaning establishment that will be
there for profit.
If there is commercialism in
the building, is that an exception or must they
then adhere to the 50 foot drive.
MR. LOWE: Scott Lowe, property owner.
Three points. Number one, I was able to learn
this evening what vested property, equitable
estoppel is so I do thank Cliff Schulman for
that, because I do not know what was being
said.
Having been a unit owner and following
this issue I can tell you I did not follow it
very closely.
I work and I raise a family.
So
for me having listened to this it really comes
down to are we going to trust the City
Commissioners or excuse me, City Manager
Soroka, City Attorney, because they have before
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you a recommendation not to give them vested
property rights. These are the folks that we
entrust to review these types of things. They
are the people that you have gone to for
quality advice since the City has started and
they are recommending to you unanimously that
you do not provide vested property rights. I
encourage Commissioners Auerbach and
Commissioner Weinberg to very much champion
this cause and not provide them that vested
property rights. Thank you very much.
MAYOR GOTTLIEB: Thank you. Before you
begin, were you sworn in by the City. Anyone
else who is going to speak must be sworn in.
So please, the gentleman behind, were you sworn
in also? Are you intending to speak? Were you
sworn in earlier.
Please, again, name for the record. Don't
repeat what was said.
MS. REISCH: Rouina Reisch, I'm a unit
owner at 3000 Island Boulevard.
,
I was rather ~urprised to hear Mr. Price
mention that you don't answer his letters. I
thought I was special. It seems like an
unfortunate practice of the City, and I think I
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mentioned in one of my e-mails to the
Commission something that was not unlike what
Mr. Schulman said about the importance of
communication, negotiation, trying to reach
resolution in the benefit of trying to avoid
litigation. I hope in going forward the City
will keep that in mind.
MAYOR GOTTLIEB: Thank you.
MR. CASTALDO: My name is Gerard Castaldo.
I live in Biscayne Cove.
I'm here from New
York.
I just moved last year and I hear so
many people speak about making profit and I
admire them. They are very good businessman.
I saw the numbers up there. Those numbers
makes me jealous, but there is no government
agency who guarantees any business in this
country a profit.
You should at this point check the
situation as a traffic and as a environmental
damage. I never heard anybody talking about
environmental damage.
In New York they stopped the West Side
Highway. Nobody was living other than downtown
who was people was liking on the edge of West
Side Highway, but they stopped. The West Side
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Highway was a state and city project, just
because of environmental damage. We killed the
fish in the water. We are killing lot of
fishing now.
When they build building they destroy
trees. They eliminate what cleans the water,
cleans the atmosphere.
I don't think there is
so much room in Williams Island to build
anything else.
Besides the infrastructure, traffic which
wouldn't permit road, another 500 apartment in
there. And I'm very good driver, believe me.
I have to waste a lot of time and usually I
used to get in and out from New York. Over
here I can't get out, there is no way, there is
only one road. I cannot play my tricks of good
driving.
But you make these people build again
that's another reason too.
Once they build
that 40 story building in front of the Clipper
and the Tower they will put those two building
behind shadow complete every day. The sun
won't go through. You will create mold growing
on the building. Mold kills people, affects
people life, affects people health.
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If people health is secondary to business
these people that want to make a killing, I
mean I admire them. They made a killing. One
killing is enough. Don't make another killing
and kill the people over here. (Applause.)
MAYOR GOTTLIEB: Thank you. Were you
sworn in earlier?
MS. ALLEN: Yes, I was. My name is Lori
Allen. I live on Williams Island, the 1000
building.
When we were being threatened with
litigation, litigation would be based on the
proposed profit of $38 million. Real estate is
highly speculative at this time and the $38
million that's, you know, it's not a sure
thing. I would be -- Mr.' Schulman also I would
be suspect of his due diligence and his
research because he quoted Gilda Radner as
saying she will say, never mind. Gilda Radner
has been dead for many years.
MAYOR GOTTLIEB: Any other comment? I
don't see anyone else in the public.
Is there
anything else? Ladies and gentlemen, please
listen. This is very important to us, to
everybody sitting here as well as the people in
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the audience.
Anything that staff feels they need to add
at this time, Mr. Soroka, Mr. Wolpin?
MR. SOROKA: No, I don't believe so.
MR. WOLPIN: Not at this time, just to
remind the Commission that the issue before
them is whether or not to uphold the decision
of the City Manager, and the Commission has the
duty to apply the ordinance as written with the
criteria that are set forth in the City
Manager's decision document.
The Commission has the authority to either
grant the appeal, deny the appeal or remand the
matter back to the City Manager for further
review.
MAYOR GOTTLIEB: Having had no further
comments from the public I'm going to close
this.
MR. PRICE: Rebuttal?
MR. WOLPIN: You can allow him to present
a brief final argument.
MAYOR GOTTLIEB: Alright.
you a brief final argument.
MR. PRICE: Thank you very much. Mayor,
I will allow
members of the Commission, once again, I trust
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you understand that these issues are not easy
to argue in front of a community
elected
community where the community feels very
strongly about an issue.
So I would appreciate, once again, you
understand that this is a record that has to be
made and while you may feel it offensive that I
object to some of the testimony, I have to
preserve that right if we are going to proceed
to another tribunal and I hope you respect
that.
Let me just state in summary. Number one,
the proposed application we filed with this
City well in advance of your moratorium
ordinance was totally consistent with your
comprehensive plan. We were not seeking any
rezoning. We were consistent with your zoning
codes, your land development regulations.
And let me just state a couple of facts
about Biscayne Cove. Biscayne Cove was
approved in 1968 and 1969 in the same zoning
resolution that Lincoln pointe was approved.
The difference was that Biscayne Cove full
development at 592 units at 9.52 acres, which
is density of 62.2 units per acre, which is a
,
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much greater density than we are seeking with
our application. ,
And once again, it's nice to be the first
one on the block and not want anybody else on
the block, but what we have proposed to the
City is a density less than what presently
exists at Biscayne Cove.
Let me state also the traffic report which
took two months to get indicated that the level
of service that exists today is level of
service C, and with our development the level
of service would remain at C. That's your
traffic report, not ours.
And finally, if we go back to the first
hearing on the moratorium ordinance, the City
Manager felt compelled to respond to concerns
raised by the community as to emergency
evacuation and whether the existing roadway
system serves the public in that area.
I asked for that to be made part of the
record. I'm repeating that request. Your
police chief indicated that he can properly
serve that community now and project it with
the density that's being projected.
Once again, we believe that we have met
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the code. We believe, and let me state what
equitable estoppel is by another court in the
State of Florida, you can't invite someone on
to the welcome mat and then pull the mat from
under them.
We respectfully ask that you overturn the
City Manager. Thank you.
MAYOR GOTTLIEB: Thank you, Mr. Price. I
believe that will close the public hearing.
UNIDENTIFIED VOICE: We haven't had a
closing argument like this gentleman just had.
MAYOR GOTTLIEB:
I asked prior to this if
anyone from else from the public wished to
speak. He spoke as an attorney on advice of
our attorney. I asked several times, I
believe, and everybody from the public who
wished to speak was sworn in and addressed and
since there are no further comments from the
public --
UNIDENTIFIED VOICE: I would like to
respond to what he said. We didn't have a
chance.
MAYOR GOTTLIEB: This is not a chance to
respond. He is an attorney representing his
client. We have our attorneys who will respond
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to him.
I'm closing this portion of the public
hearing and now the Commission, I know we have
a lot to discuss, and a lot to digest and our
City Attorney is here.
Remember, again, just as they are creating
a public record I just want to remind everybody
we too are creating a public record for what
happens in the future.
Mr. Diamond, I see you.
COMMISSIONER DIAMOND:
If I may, I just
have a few questions to ask Mr. Price, if you
would, Mr. Price.
You gave us this case that you cite is the
leading case on point, that's the Dade County
versus Jason.
MR. PRICE: Yes, sir.
COMMISSIONER DIAMOND: You indicate this
is precisely the issue involved.
MR. PRICE: We believe that there was an
undue delay that was caused by the City which
made it impossible to get our permit because of
the pending imposition of the moratorium.
COMMISSIONER DIAMOND: The case you cited,
I am looking at the language very clearly it
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says that the fact that the landowner had
completed all the necessary perquisites
entitling them to the permit as of 11:30 a.m.
In this case you haven't completed what was
required. You hadn't obtained site plan
approval. There was still documentations that
were required. That's a significant
difference.
MR. PRICE: The significant difference,
sir, is that because of what the City imposed
upon us, a false interpretation of a zoning in
progress, a undue waiting period for your
police and traffic reports to be done, we would
have been through your process well in advance.
We are arguing to you today that we met
all of the criteria of your code. That's why
we believe the Jason case is applicable.
COMMISSIONER DIAMOND: ' One more question.
The ,leading case in moratorium as you are aware
is the WCI Communities versus Coral Springs
case.
MR. PRICE: That's not the leading case,
sir, it's Hollywood Beach.
COMMISSIONER DIAMOND: In that case it was
a recent case in connection with it the
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developer had proceeded similarly and was
seeking significant moneys in connection with
the sale of their contemplated properties, et
cetera, and they were well along the way but
they had not received site plan approval. The
court upheld the moratorium as against WCI.
Where do you distinguish your case?
MR. PRICE: I'll distinguish it very
easily, sir, because, once again, we believe we
can demonstrate and we will demonstrate that
the City intentionally delayed the processing
of our application and the City acted in bad
faith in regard to imposing certain burdens of
proof upon us which should not have been the
staff -- you can't tell me the staff did not
know that your zoning in progress related to
parking garages only applied to commercial
property. We had to point that out to them and
take two months to go throught that. We say
most respectfully we met all the criteria of
your code. We were delayed, delayed, delayed
until this moratorium went into effect and now
all of sudden we are put in this process and
once again we suggest the Jason case is right
on point. Thank you.
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Page 55
MAYOR GOTTLIEB: Alright. Commissioner
Joel and Commission Weinberg.
COMMISSIONER JOEL: After listening to
everything that was said tonight I would like
to go on record before I make a motion I want
to make, that I'm not in favor of this 40 story
building and I would never vote for this 40
story building.
However, there is potential for litigation
here which we all know and we never know what a
court will do and they may rule on 40 stories.
There is four more months to go on this
moratorium, approximately four more months.
Therefore, I would like to make the
following motion.
I would like to make a
motion to remand this item back to the City
administration in order to negotiate a project
that would be less height and density by the
developer. ' Whatever the results, please,
whatever the results are, it would have to come
back to the City Commission for approval or
denial at a public hearing.
So that we really don't have anything to
lose by putting it through negotiations. I
don't feel that we should leave this open for
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Page 56
any court right now. There is approximately
four more months, like I said. Let's go for
some negotiation.
So if I can get a second to that motion.
COMMISSIONER HOLZBERG: You have a second.
MAYOR GOTTLIEB: Who seconded it?
COMMISSIONER HOLZBERG:
I did.
MAYOR GOTTLIEB: Commission Holzberg
seconded it.
COMMISSIONER DIAMOND: May I be heard on
the motion?
MAYOR GOTTLIEB: The motion takes
precedence. Excuse me. Is there anybody else?
COMMISSIONER AUERBACH:
I have a question.
MAYOR GOTTLIEB: Before you go on the
motion I believe that Luz had a comment and
then Zev and then you can speak to the motion.
Let's try to get there in an orderly fashion.
You have a motion on the floor however.
COMMISSIONER WEINBERG: I'm going to be
cautious in my comments not because I'm
intimidated by any threats of litigation or
because I'm intimidated by retaliation come
election day in 2008 for myself, because I want
to be sensitive to both sides.
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I'm raising three school aged kids and
they will tell you I'm not easily intimidated.
To the residents, I remind you that we too
are residents and as I was commissioned by the
gentleman in the blue shirt to champion his
cause, because I'm a Clipper resident at
Biscayne Cove, I too drive on 31st Court and I
too sit on the gridlock and I too sit on the
flooded street after a short drizzle. So I go
through what you go through as well. So I'm
sensitive to that.
My concerns however also include this
Commission's responsibility to you to keep us
out of litigation, and those of you who sat
through the moratorium process will remember
that most of my questions and concerns through
those many meetings we had on the moratorium
had to do with the potential for litigation.
So I'm sensitive to that as well.
That said, I did have a couple of
questions for Cliff Schulman on your time line,
if you will put that time line back up.
Recalling the two major exceptions that
the moratorium held, and correct me if I'm
wrong, David, site plan approval and vested
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rights took precedence. Anyone with site plans
or vested rights was not included in the
moratorium. I have two short questions, Cliff.
MR. SCHULMAN: Yes, ma'am.
COMMISSIONER WEINBERG: Where in that time
line would you have sought to obtain site plan
approval. Where in that time line would you
have sought to have obtained vested rights arid
why was it not done?
MR. SCHULMAN: The application for site
plan approval was initially filed December
2004. That would have been in between here and
here. So that was approximately seven months
ago.
COMMISSIONER WEINBERG: This is what you
claim was delayed.
MR. SCHULMAN: Excuse me, nine months ago.
And, by the way, I do know Gilda Radner has
passed away unfortunately.
COMMISSIONER WEINBERG: Yes, I'm sure we
are very sensitive to that.
MR. SCHULMAN: I didn't put that in the
time line.
COMMISSIONER WEINBERG: This is what you
claim was delayed, that process?
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MR. SCHULMAN: From that period of time
basically nine months went by and the site plan
was not diligently processed.
Instead it was
delayed, deferred, some letters answered --
excuse me, written but not answered, well
beyond and I practice in the City as long as
Mr. Price, longer than any project I ever dealt
with.
COMMISSIONER HOLZBERG: Mr. Price claims
that perhaps they were delayed because there
were thoughts of a moratorium.
you said?
Is that what
MR. SCHULMAN: Yes.
COMMISSIONER WEINBERG: On the moratorium
issue it was brought up in the February '05
meeting.
MR. SCHULMAN: Things slowed down. We
filed in December and things slowed down in
February, March, April.
That's when the
slowdown occurred.
It may be merely
coincidental.
COMMISSIONER WEINBERG: Once the issue of
a moratorium came up in February '05 wouldn't
your next step be to try to obtain vested
rights?
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MR. SCHULMAN: At that point in time the
moratorium wasn't passed until June. So the
vested rights provision did not exist until
, June.
COMMISSIONER WEINBERG: Okay. That's all.
MAYOR GOTTLIEB: Zev and then Commissioner
Diamond on the motion. You ~re not speaking on
the motion.
COMMISSIONER AUERBACH: No.
MAYOR GOTTLIEB: You are making a comment.
COMMISSIONER AUERBACH: I have a question
for Mr. Schulman or Mr. Price. The Pinnacle
deal, the Pinnacle sale, was in April 2005,
correct?
MR. SCHULMAN: That's correct.
COMMISSIONER AUERBACH: You are saying the
delays, the delays, the delays dated way back
before April 2005.
MR. SCHULMAN: The application was filed
in December. The Pinnacle deal was inked in
April .
COMMISSIONER AUERBACH: Did you disclose
to the Pinnacle people that you are concerned
about delays, delays, delays?
MR. SCHULMAN: We disclosed to the
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Pinnacle people what was going on at the City
during that period of time yes.
COMMISSIONER AUERBACH: So if what you are
saying today is accurate, that you were
concerned about the delays, you would have
disclosed to them about the delays, why did
they go forward with the deal?
MR. SCHULMAN: We also disclosed to them
that the City had indicated to us that the
project was capable of being approved at 526
units with a floor area ratio of 2.0 which was
the zoning in effect at the time, and the deal
was contingent upon getting that zoning and
that floor area arrangement.
COMMISSIONER AUERBACH: At that point the
City still didn't commit to that and you still
didn't receive your police reports. So what
you are expressing as concerns about obvious
delays didn't seem to be an issue when you
inked the deal with Pinnacle.
MR. SCHULMAN: I don't necessarily see
that. In all honesty, I think your first
workshop on the matter was in April or May.
COMMISSIONER AUERBACH: My point is I
don't think they were obvious delays, they were
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not intentional delays. You were going through
the process.
MR. SCHULMAN: We respectfully disagree
and we think the record will show that.
MAYOR GOTTLIEB: Mr. Diamond on the
motion.
COMMISSIONER DIAMOND:
Yes. On the motion
I will briefly address the position and then on
the motion itself.
The issue before us is the appeal in
connection with the finding by our City Manager
that the applicant had failed to demonstrate
that there had been a government active
approval in connection with this matter, site
plan approval.
It's clear in this case they did not have
that. They were simply along in the process as
WCI was. I think if you send it back for
further conferences I think it's sending the
wrong message.
It also delays the applicant's
right of appeal because during that period of
time it stays it.
In my opinion our attorney has given an
opinion in connection with this matter that the
moratorium should apply to this property
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without question. Accordingly -- (Applause.)
My clear feelings about the matter is that
the applicant should be denied. I think the
moratorium should stand.
I speak against the motion only because of
the fact that you your message was to refer it
back for further discussion, et cetera. I
think it should simply be denied. (Applause.)
MAYOR GOTTLIEB: This will shock people.
I'm in complete agreement with Commissioner
Diamond on this issue.
I believe that we have
gone through this very carefully when we
decided to enact a moratorium, and in addition
at the time of enacting the moratorium there
were some buildings that I was not happy about
that were going to be excluded from the
moratorium, and my suggestion with the blessing
of this commission we went further and hired
outside counsel to further investigate the fact
that this building, particularly the one that
many residents were upset about, the moratorium
did not apply.
This particular building, Commissioner
Diamond was absolutely correct, was not part of
this moratorium.
I see nothing in this appeal
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process that does not support the City Manager.
I do not believe that anything was done in any
manner, form or fashion that was unfair to the
people who have chosen to buy that property,
and frankly, to continue to negotiate from 40
stories to whatever number already gives the
impression the City is going to do something on
that property that might not be in keeping with
what I think the City wants.
Governments are not entities that should
not have some sense of leeway. Things that
were appropriate in the 1970s, '60s and 50 I S
are not necessarily appropriate today.
(Applause. )
We now look at this one corridor. We are
looking at tall buildings. We have just gone
through a disaster. I'm sure that the people
will rebuild New Orleans will not rebuild the
levees the same way they built it.
I'm confident that if we had a blank slate
we would look at Williams Islands, The
Peninsula, of which I'm a resident, Biscayne
Cove which many of the people are residents and
Williams Island, and we would look and say,
perhaps if we had another way of doing it we
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might as well do it.
As far as I'm concerned I think the City
acted in good faith.
I think the government
zoning, Cliff, I respectfully disagree, and
again, these are not personal issues. You are
representing your client.
We are representing
the people of this City, and frankly what
happened during that time is that there was an
election. I think the election spoke loud and
clear about the direction of the City of
Aventura.
Having said that, government zoning is not
a game and we have got to do what we feel is
right. That's why they have court, and I'm not
afraid to go to court on this issue.
(Applause. )
I realize litigation is expensive. I
believe we have a good City Attorney. They
have a fine staff.
If they feel they need
extra help, anybody else they want to hire,
that's a decision Mr. Wolpin will make.
Whatever he feels he wants to do, but I feel
that we will represent this City in an
extraordinary fashion and we will do what has
to be done and the court will decide and we
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will see from there what the next step is.
I cannot support Commissioner Joel's
resolution.
(Applause. )
Mr. Stern.
COMMISSIONER STERN: Very quick question.
Eric and David, obviously you made this
decision. For me it boils down to how strong
do you really feel about your decision? Do you
feel very strong? Do you feel borderline
strong?
MR. WOLPIN: To answer that question, I
provide -- to answer that directly. The
function of the City Manager under the
moratorium ordinance is to receive evidence as
presented by the applicants at that point and
to make a decision based on that evidence.
Once the City Manager has done, that is,
has received my legal advic~ and has issued his
order as has been done, it's not appropriate
for the Manager to comment further on that nor
for myself as to the direct merits of that.
The item is now in your court as the
quasi-judicial body, and under our ordinance it
simply says that once an appeal is filed based
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upon the evidence submitted at the hearing you
would make a determination as to whether or not
the applicant has established vested rights.
So it really would not be appropriate for
us to state -- to answer your question as to
yes or no directly, because then that's like
you are prejudicing your record and over
emphasizing the Manager's decision.
So it's
your decision to make. You have the authority
to adopt the motion that has been made.
Alternatively you have the authority to
adopt the motion of holding the decision of
denial, or you have a third option actually,
third option of reversing the City Manager's
decision and grant the vested rights
determination.
The immediate point, the only item on the
floor, is the pending motion which has been
made and seconded and is well within the range
of discretion of the Commission.
MAYOR GOTTLIEB: However, David, when we
discussed the moratorium you decided that this
particular development was not vested.
MR. WOLPIN: Well, that's a different
matter. When the moratorium ordinance was
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created, and I'm glad you brought that up, it's
a good point, the moratorium ordinance itself
had exemptions written into it. One of the
exemptions was that if someone had a site plan
approval they were exempted from the temporary
hold of the moratorium.
If someone had a
vested rights agreement, and the important word
is agreement, they were exempted and those
refer to those certain agreements that were
entered into several years ago. When the new
land development was created in 1999 the
developers were given a chance to show vested
rights at that time.
So those are the vested rights agreements
that are referred to in the moratorium
ordinance. For example, one of those that had
a vested rights agreements was the Minto
project as well as several others.
MAYOR GOTTLIEB: But this one did not have
either one of those and that is why at that
time you recommended they were not part of the
project that you would recommend.
MR. WOLPIN: What was done at the time of
the moratorium was that it was recognized this
site, the Lincoln Pointe site, did not fall
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under the exemption categories; however, the
Lincoln pointe property as well as any others
has a right to apply for vested rights
recognition, but it's their burden of proof to
prove the vested rights.
They have to show there has been an action
of government upon which they relied, that they
relied on that in good faith, and if so
detrimentally relied that it would really be
inequitable and unfair to apply the moratorium
ordinance to them. That's their burden.
It must be kept in mind why we are here
today is not whether or not the project will be
built, but whether or not the moratorium
applies. The moratorium is only a temporary
hold while the City creates new regulation.
MAYOR GOTTLIEB: Commissioner Weinberg.
COMMISSIONER WEINBERG:
I just want
clarification. There are two motions with two
seconds on the floor.
MR. WOLPIN: There is only one motion.
MAYOR GOTTLIEB:
It's Commissioner Joel's
motion.
MR. WOLPIN: The motion of Commissioner
Joel, Billy Joel, was to remand this matter to
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the City Manager for the purpose of negotiating
a development which would be of less height and
less density with the matter coming back to the
City Commission for a further public hearing
following the remand action of the City
Manager.
MAYOR GOTTLIEB: And we had a second.
MR. WOLPIN:
Seconded by Commissioner
Holzberg.
MAYOR GOTTLIEB: Commissioner Joel wants
to speak on it and Commissioner Diamond.
COMMISSIONER JOEL:
I would just like to
reiterate the fact that I'm not in favor of a
40 story building, but there is nothing wrong
with negotiation.
As a businessman I have negotiated many,
many times. This will come back to the
Commission for a yes or no. So why start legal
action unnecessarily until we see what the City
comes up with and that was my main point.
MAYOR GOTTLIEB: No discussion. This is
strictly on the Commission. Mr. Diamond.
COMMISSIONER DIAMOND: Two things. Number
one, with regard to the point you are raising,
parties are always free at any stage to sit
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down and negotiate, assuming, and my belief is
hopefully this is turned down and an appeal is
filed, there may very well along the way be
some discussion about settlement. That's a
possibility, but that's between the parties and
I don't think we should mandatorily enforce
that situation. That's number one.
Number two, our attorney brought up
something very important to a full
understanding of this entire matter and that
was this. Mr. Wolpin spoke about the Minto
situation.
I think that's critically important as it
applies to this. When that was brought up our
good attorney indicated that the in the Minto
situation that developer had both vested rights
and agreement with the City in 1999, plus site
plan approval. His opinion in that ,matter was
because that developer had both of those. The
City was powerless to put it under the
moratorium and with his caution if we dared to
put it under the moratorium he cautioned us
about the fact that the City could be held
responsible for multi-millions of dollars of
damages. That was a critical difference in
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connection with that case. He then indicated
specifically hls opinion that Lincoln pointe
was subject to the moratorium. So,
respectfully, it's a world of difference and,
respectfully, we should follow that advice,
uphold the moratorium and apply it to this
situation. (Applause.)
MAYOR GOTTLIEB: Commissioner Auerbach.
COMMISSIONER' AUERBACH:
I'm going to give
my opinion. I'm responsible to do that. I
don't want to let our government off the hook
on this:
This is not a good guy, bad guy issue
between the developer and the community,
between the condo residents and the developer
or between the developer and the City
Commission.
This problem of over building is really a
problem of under planning that happened years
and years ago in Dade County. We have a chance
today to correct it and we have to do so
appropriately.
I think at this point in time, even
against the fear of litigation, we have to go
forward with the effort of limitation.
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So I'm supporting the moratorium, but I
just want to make the case clear, this is
not -- the developers are not the enemies. We
all have rights here, but at this point in time
we have to determine the right from the wrong.
So I'm supporting the moratorium. (Applause.)
MAYOR GOTTLIEB: I'm going to call the
question with one further comment before I do
that, and that is that no one likes to
litigate, it's costly, et cetera. Many
settlements are made on courthouse steps.
There are perhaps some ways to work this out
but certainly not at this particular point in
time. We will have to hear from a judge. You
will appeal, we will appeal. Who knows what
will happen here.
The project as it stand is totally
incompatible with the rest of Aventura. On
that basis I do not support negotiations to go
from 40 to 28 or whatever, because I just think
that it's a pointless venue to go from 500
units to 400 units. This is a much bigger
issue. We have to stand the ground and take
the position we took. (Applause.)
Call the questions. Those in favor --
,
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COMMISSIONER HOLZBERG:
Can you hold on
one moment, please.
I didn't put my hand up.
I always wait for the end.
MAYOR GOTTLIEB:
I'm sorry, I won't ever
call a question until I look your way.
COMMISSIONER HOLZBERG:
I'm a hundred
percent with Billy Joel on this. You don't
understand, and people here in this audience
don't understand what litigation is.
I have listened to you people for two
hours and very quietly didn't laugh or didn't
jOke at anything that you put out on the floor.
I have been on this Commission for ten years
and I don't want to be insulted by you people
because I want to make a statement.
MAYOR GOTTLIEB: Ladies and gentlemen,
please.
, COMMISSIONER HOLZBERG: Where were you ten
years ago when we were building this city? I
never saw anyone of you in this audience.
I'll get excited here. Not one of you was ever
in this audience. Now you are here because
it's in your backyard. But the whole city is
your backyard.
It's three and a half square
miles long and don't think that just because
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they are doing it in your backyard that you
should be insulted by it.
UNIDENTIFIED VOICE: How dare you --
MAYOR GOTTLIEB: Ladies and gentlemen,
please.
COMMISSIONER HOLZBERG: Why don't you give
me the right to speak?
MAYOR GOTTLIEB: They will give you the
right to speak or they will be asked to leave.
There is a certain respect on this commission
table and this gentleman is a Commissioner and
he has a right to speak and then we will vote.
It is unnecessary to come up and back with this
conversation.
COMMISSIONER HOLZBERG: Thank you.
In 1995 Florida legislation passed two
pieces of legislation, one called the Burt
Harris Act, which was called the Private
Property Rights Protection Act and the Florida
Land Use and Environmental Dispute Resolution
Act. This act ascends -- I will say the
majority of the lawyers in zoning have sent
their grandchildren to college because of this
act. There has been ten cases on the beach and
not one went to court.. Every single one was
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They have a right.
I'm not arguing they
are morally right.
I'm not giving that to
them. But saying that they should build a 40
story building is not right, but they have a
right to go under this act and go into
litigation. So you people don't understand
what litigation means here. It means drawn
out, tremendous amount of expenses for the
City. That's why I agree with Billy Joel on
this, that we should go back and negotiate on
this.
This is not going to go away just because
tonight we say let it go we, don't agree with
their vested rights, we don't agree with this.
It's not going away.
So I think really, my fellow
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Commissioners, take another look at this and go
through negotiations rather than go through
li tigation.
MAYOR GOTTLIEB: Thank you. There being
no other comments I think it's time to vote.
MR. WOLPIN: Just to once again reiterate
directly to make sure the Commission does
understand that they do have the discretion
within the scope of the existing city
moratorium ordinance to either grant or to
either approve or not approve the motion before
the commission.
I just want to make sure the
Commission understands that you have discretion
to approve the motion that's presently in front
of you.
MAYOR GOTTLIEB: But does not the motion
made by Commissioner Joel take precedence
first?
MR. WOLPIN: His motion is the only one on
the floor.
MAYOR GOTTLIEB: We have to vote that up
or down and then make the next motion, right,
then make the next motion. Right now we have
to vote on this particular motion.
MR. WOLPIN: What I'm addressing myself is
Network Reporting Corporation
(305) 358-8188 (888) 358-8188
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to that motion. This proposed motion on the
floor now is a lawful motion and it's a motion
that's within the lawful power and discretion
of the City Commission to grant based on what's
been presented.
MAYOR GOTTLIEB: Essentially that's the
motion to go back and to renegotiate and bring
it back to this Commission. We have a lawful
motion and a second. D,o we need a roll call
for this?
MR. WOLPIN: Yes.
CITY CLERK SOROKA: Mr. Holzberg?
COMMISSIONER HOLZBERG: Yes.
CITY CLERK SOROKA: Mr. Joel?
COMMISSIONER JOEL: Yes.
CITY CLERK SOROKA: Mr. Stern?
COMMISSIONER STERN: No.
CITY CLERK SOROKA: Ms. weinberg?
COMMISSIONER WEINBERG: No.
CITY CLERK SOROKA: Vice Mayor Auerbach?
COMMISSIONER AUERBACH: No.
CITY CLERK SOROKA: Mr. Diamond?
COMMISSIONER DIAMOND: No.
CITY CLERK SOROKA: Mayor Gottlieb?
MAYOR GOTTLIEB: No.
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Commissioner Diamond you have another
motion? Make the motion.
COMMISSIONER DIAMOND: I move the motion
that the application in connection with this
matter be denied.
MAYOR GOTTLIEB: Do I have a second on
that?
MR. WOLPIN: Just to clarify, while in
that light. It would be a motion to deny the
appeal upon finding that the applicant has not
established vested rights.
MAYOR GOTTLIEB: Fine. Do I have second?
I'm giving the gavel over to the Vice Mayor and
I'll be happy to second the motion.
COMMISSIONER AUERBACH: Do I get to hit
this.
MAYOR GOTTLIEB: You can hit anyone you
want.
Alright, roll call. Again, all in
favor -- it has to be a roll call.
CITY CLERK SOROKA: Ms. Weinberg?
COMMISSIONER WEINBERG: Yes.
CITY CLERK SOROKA: Mr. Stern?
COMMISSIONER STERN: Yes.
CITY CLERK SOROKA: Mr. Joel?
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COMMISSIONER JOEL: No.
CITY CLERK SOROKA: Mr. Holzberg?
COMMISSIONER HOLZBERG: No.
CITY CLERK SOROKA: Mr. Diamond?
COMMISSIONER DIAMOND: Yes.
CITY CLERK SOROKA: Vice Mayor Auerbach.
COMMISSIONER AUERBACH: Yes.
CITY CLERK SOROKA: Mayor Gottlieb?
MAYOR GOTTLIEB: Yes.
(Applause. )
MAYOR GOTTLIEB: We will take a few
minutes break.
(The hearing was concluded.)
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J 1
2 C E R T I FIe ATE
3
4 THE STATE OF FLORIDA
5 COUNTY OF DADE
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8 I Thomas R. Neumann, Registered Professional
9 Reporter, State of Florida at large, certify that I
10 was authorized to and did stenographically report
11
the foregoing proceedings and that the transcript is
a true and complete record of my stenographic notes.
Dated this 19th day of September, 2005.
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Thomas R. Neumann, Court Reporter
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ORDINANCE NO. 2005- 07 '
AN ORDINANCE OF THE CITY OF A VENTURA,
FLORIDA (THE "CITY"), PROVIDING FOR. IMPOSITION
OF A MORATORIUM ON ISSUANCE OF DEVELOPMENT
ORDERS AND DEVELOPMENT PERMITS WITIDN THE
CITY CONCERNING DEVELOPMENT WHICH IS
PROPOSED ON PROPERTY LOCATED EAST OF
BISCAYNE BOULEVARD WITHIN ANY RESIDENTIAL
OR COMMERCIAL ZONING DISTRICTS OF THE CITY;
PROVIDING FOR WAIVER, VESTED RIGHTS, APPEALS,
EXHAUSTION OF ADMINISTRATIVE REMEDIES,
APPLICABILITY, SEVERABILITY; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City Commission is presently working through its consultants and staff
on the study and preparation of an Evaluation and Appraisal Report (the ';EAR") for the City's
Comprehensive Plan which, upon implementation, when coupled with any necessary
amendments to the City's Comprehensive' Plan and Land Development Regulations ("LOR's"),
shall serve to further guide land use and development, so that the public health, welfare and
safety is protected and the aesthetic and visual qualities ofthe City are further enhanced and are
protected from impairment; and
WHEREAS, the City has previously identified the following major issues that will be
addressed during the EAR process:
. Development and Redevelopment
. Housing
. Emergency Management
. Transportation
. Intergovernmental Coordination
. Quality of Life; and
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WHEREAS, during the moratoriwn provided for in this Ordinance, the City shall focus on
the Study and fonnulation of remedial measures related to the following areas which need to be
addressed during the EAR process:
1. Traffic concurrency;
2. The Town Center land use designation;
3. Redevelopment guidelines;
4. Building height;
5. Emergency management; and
WHEREAS, an important element of the City's growth management strategy concerns
the necessity to be prepared to handle ihe substantial likelihood of an emerging trend for
extensive redevelopment activities arising within the City; and
WHEREAS; the City Commission desires to insure that during the pendency of the
. necessary study activity, presently underway, for the formulation and implementation of the
EAR and the remedial measures referenced herein, that additional development orders and
development permits are not issued in the City for any development within the scope of the
moratorium which is described herein, so that once the EAR and any resulting Comprehensive
Plan amendments, and LOR amendments (collectively, the "Growth Management Regulations")
are prepared and implemented, such Growth Management Regulations will be fully effective in
accomplishing the City's lawful purposes; and
WHEREAS, in accordance with Section 31-31 of the City Code of the City, the City
Commission has been designated as the local planning agency for the City pursuant to Section
163.3174, Florida Statutes; and
WHEREAS, the City Commission has reviewed the moratorium regulations set forth in
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this Ordinance and has determined that such moratorium regulations are. consistent with the
applicable provisions of the Comprehensive Plan of the City; and
WHEREAS, in enacting the moratorium regulations provided for herein, the: City
Commission has been guided by the advice of the City Attorney and City Manager as set forth in
the City Attorney's Memorandum of April 8, 2005 entitled "Potential Moratorium".
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF A VENTURA, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adonted. That each of the above stated recitals is hereby
adopted and confirmed.
Section 2. Moratorium 1m Dosed: AnDlicahilitv
A. That during the time that this Ordinance is in effect, as specified in Section 7
below, there shall be a moratorium upon the issuance of Development Orders and Development
~ Permits, as those terms are defined in Section 163.3164, Florida Statutes, (collectively
"Development Orders") concerning development on any property in the City which is located
east of Biscayne Boulevard in any areas of that portion of the City which are presently zoned
residential or commercial. For purposes of this Ordinance, the term "zoned residential", as used
herein, includes all of those residential zoning districts which are listed in Section 3 I -143 of the
City Code. For purposes of this Ordinance, the term "zoned commercial", as used herein,
includes all of those zoning districts which are listed in Section 31-144 and Section 31-145 of the
City Code.
B. That notwithstanding anything to the contrary above, this moratorium shall not
apply to:
1. any public purpose project which is required by any government entity; and
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any office buildings of a height which does not exceed ten (10) stories; and
3. any development f~ which a building permit or any required site plan approval
has been issued prior to the imposition of this moratorium; and
4. any development which is protected from a change in municipal ordinances to the
extent provided by Section 163.3233, Florida Statutes, for those statutory
development agreements which have been previously entered into; and
5. the construction, renovation or improvement of (i) individual single family
homes; or (ii) retail or office space within the confines of existing buildings; or
(iii) non-occupiable structures, including signs, cable television or
telecommunication facilities; and
6. work for the decoration of the exterior of an existing structure or for the
improvement of the interior of existing dwelling units; and
7. improvements authorized by administratively approved amendments to site plans
referenced in paragraph (3) above, so long as said improvements do not increase
the intensity or density of development or adversely impact traffic conditions; and
8.
community facilities listed in Sec. 31-147(a)(1) of the City Code which constitute
a permitted or conditional use in the proposed location; and
9.
a new anchor tenant and ancillary supportive retail space at an existing regional
mall, not to exceed an additional 225,000 square feet, provided that City
recommended and mutually agreed upon traffic flow entrance modifications on
Biscayne Boulevard are explored and implemented; and
10. the construction, renovation or improvement of recreational facilities, restaurants,
lounges, clubhouses or health and fitness spas, which constitute lawful accessory
uses designed to serve existing multi-family buildings; and
11. the reconstruction of marinas and dry dock storage facilities on the condition that,
upon the issuance of a building permit for such reconstruction, any and all rights
to develop such property for residential use shall terminate pursuant to a
recordable covenant which is accepted by the City Manager.
Section 3. Waivers. That the City Commission, after a public hearing held pursuant to
City Code Section 31-71 and 34-31, et. seq., may grant a waiver to the moratorium provided
above and authorize the issuance of Development Orders for a specific building, where the City
Commission determines that based upon substantial competent evidence, the specific use or
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activity requested by the waiver application will not detrimentally affect the preparation and
implementation of the Growth Management Regulations, will be compatible with surrounding
land uses, and will not impair the public health, safety or welfare.
Section 4. Vested Ril!hts.
(A) That nothing in this ordinance shall be construed or applied to abrogate the vested
right of a property owner to complete development :where the property owner demonstrates each
of the following:
(1) A governmental act of development approval was obtained prior to the
effective date of this Ordinance; and
(2) Upon which the property owner has detrimentally relied, in good faith, by
making such a substantial change in position or incurring such extensive obligadons and
expenses; and
(3) That it would be highly inequitable to deny the property owner the right to
complete the development.
(B) That, except as provided by paragraph (C) below, any property owner claiming to
have vested rights under this Section 4 must file an application with the City Manager for a
vested rights detennination within 30 days after the effective' date of this Ordinance. The
application shall be accompanied by a fee of $1,500.00 and contain a sworn statement as to the
basis upon which the vested rights are asserted, together with documentation required by the City
Manager and other documentary evidence supporting the claim. The City Manager shall review
the application and based upon the evidence submitteo>shall make a ,determination as to whether
the property owner has established vested rights, The City Manager's decision shall be subject toc
appeal, by only the applicant for a vested rights determination, to the City Commission by notice
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of appeal filed with the City Manager within ten (10) days after the City Manager's written
decision. In the eVent of a timely appeal, the City Commission shall hold a public hearing on the
appeal pursuant to City Code Section 31-71 and City Code Section 34-31, et.scq., andbascd
upon the evidence submitted shall make a determination as to whether or not the property owner
has established vested rights. To the extent that a property owner demonstrates vested rights, the
moratoriwn shall not be applied.
(C) That any property owner c1ainting vested rights under this Section 4 by virtue of a
Vested Rights Determination Agreement with the City which was issued pursuant to City Code
Section 31-3(b), shall not be subject to this moratoriwn and shall be authorized to apply for
Development Orders in accordance with the Vested Rights Determination Agreement, by filing a
copy of the Vested Rights Determination Agreement with the City Manager, accompanied by a
letter which references this paragraph (C), within thirty (30) days after the effective date of this
Ordinance.
Section 5. ADDeals. That appeals from final decisions by the Commission under
Section 3 or Section 4 of this Ordinance shall be by the filing of a Petition for Certiorari in the
Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County in accordance with
the Florida Rules of Appellate Procedure for the review of the quasi-judicial rulings ofmunicipaI
agencies.
Section 6. Exhaustion of Administrative Remedies. That no property owner claiming
that this Ordinance as applied constitutes or would constitute a temporary or permanent taking of
private property or an abrogation of vested rights may pursue such claim in court unless he or
she has first exhausted the administrative remedies provided in this Ordinance.
Section 7. Term. That the moratorium imposed by this Ordinance is temporary and
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~ shall be effective for a period of one hundred eighty (180) days from adoption hereof, unless
dissolved earlier by the City Commission. Further. the moratorium shall automatically dissolve
'upon the adoption of the Growth Management Regulations, the fonnulation and adoption of
which shall be expeditiously pursued. The duration of the moratorium may be reasonably
extended,if necessary, for up to an additional sixty (60) day period by Resolution of the City
Commission.
Section 8. Effective Date. That this Ordinance shall be effective immediately upon
adoption on second reading.
The foregoing Ordinance was offered by Commissioner Joel who moved its adoption on
first reading. This motion was seconded by Vice Mayor Auerbach and upon being put to a vote,
the vote was as follows:
,
Commissioner Bob Diamond
Commissioner Harry Holzberg
Commissioner Billy Joel
Commissioner Michael Stern
Commissioner Luz Urbaez Weinberg
Vice Mayor Zeil Auerbach
Mayor Susan Gottlieb
YES
YES
YES
YES
YES
YES
YES
The foregoing Ordinance was offered by Commissioner Bo1.zberR
who
moved its adoption on second reading. This motion was seconded by Commissioner
Di8l101ld
and upon being put to a vote, the vote was as follows:
Commissioner Bob Diamond
Commissioner Harry Holzberg
Commissioner Billy Joel
Commissioner Michael Stem
Commissioner Luz Urbaez Weinberg
Vice Mayor Zev Auerbach
Mayor Susan Gottlieb
,
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YES
YES
YES
YES
YES
YES
YES
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PASSED AND ADOPTED on first reading this 3rd day of May, 2005.
PASSED AND ADOPTED on second reading this 7U1 day of June, 2005.
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Susan Gottlieb, Mayor
APPROVED AS TO FORM AND LEGAL SUFFICIENCY
FOR THE USE AND RELIANCE OF THE CITY ONLY:
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CITY ATIORNEY
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ORDINANCE NO. 99-10
AN ORDINANCE OF THE CIlY OF AVENTURA, FLORIDA, ADOPTING
THE ZONING MAP AS REQUIRED BY THE LAND DEVELOPMENT
REGULATIONS; PROVIDING FOR REZONING OF ALL PROPERTY IN
THE CITY OF AVENTURA IN CONFORMANCE WITH THE ZONING
DESIGNATIONS CONTAINED ON THE ZONING MAP; PROVIDING FOR
INCLUSION IN THE CODE AND AN EFFECTIVE DATE.
WHEREAS, the City's Land Development Regulations require the preparation of an
official zoning map to implement the Land Development Regulations; and
WHEREAS, the City has held numerous Workshop Meetings and obtained
extensive input and participation by the public through these meetings; and
WHEREAS, a new zoning map has been prepared by the City Manager for the
proper preservation of the public peace, health. safety, and \oY8lfare of the City; and
WHEREAS, the City Commission, sitting as the Local Planning Agency pursuant to
City Code Section 34-1, has held a public hearing upon the Zoning Map and has
recommended adoption of the Zoning Map to the City Commission; and
WHEREAS, the City Commission has held public hearings upon the adoption of the
Land Development Regulations pursuant to this Ordinance; and
WHEREAS, in accordance with the City's procedures and Section 166,041, Fla.
Stat, public notice has been given of the public hearings for the proposed passage of this
Ordinance adopting the Zoning Map as required by the Land Development Regulations.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted, That the recitals set forth above are hereby adopted
and incorporated herein.
Section 2. Adoption of Zonina Map. That the Zoning Map attached as Exhibit
"A" is adopted as the official zoning map of the City of Aventura, and that all property within
the City is hereby rezoned in accordance with the Zoning Map.
Section 3. Repeal of Zonina MaD and Desianations. That the Zoning Map that
was adopted by Section 8.03 of the City Charter (the Miami-Dade County Zoning Map),
along with any amendments thereto, is hereby repealed and replaced as of the effective
date of this Ordinance.
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Ordinance No. 99-10
Page 2
Section 4. Conflicts. That all ordinances and parts of ordinance in conflict
herewith are hereby repealed insofar as they are inconsistent or in conflict with the
provisions of this ordinance or the land Development Regulations, and the land
Development Regulations shall replace the provisions of the Miami-Dade County Zoning
Code to the fullest extent allO'Ned by law. However, the repeal of ordinances and the
replacement of the Miami-Dade County Zoning Code shall not affect any offense or act
committed or done or any penalty or forfeiture incurred, or any contract or right established
or accruing before the effective date of this ordinance,
Section 5. Inclusion in the Code.. It is the intention of the City Commission, and
it is hereby ordained thatlhe provisions of this Ordinance shall become and made a part of
the Code of Aventura, Florida; that the sections of this Ordinance may be renumbered or
relettered to accomplish such intentions; and that the v.crd "Ordinance" shall be changed to
"Section" or other appropriate mrd.
Section 6. Effective Date. That this ordinance shall be in full force and effect on
the date of passage and adoption.
The foregoing Ordinance was offered by Commissioner Holzberg, who moved its
adoption on first reading. The motion was seconded by Vice Mayor Rogers-Libert, and
upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Harry Hollberg
Commissioner Jeffrey M. Perlow
Vice-Mayor Patricia Rogers-Libert
Mayor Arlhll' I. Snyder
yes
no
yes
yes
yes
no
yes
The foregoing Ordinance was offered by Vice Mayor Rogers-Libert, who moved its
adoption on second reading. The motion was seconded by Commissioner Holzberg, and
upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Harry Holzberg
Commissioner Jeffrey M. Perlow
Vice-Mayor Patricia Rogers-Libert
Mayor Arthur I. Snyder
absent
yes
yes
yes
yes
yes
yes
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Ordinance No. 99-10
Page 3
PASSED on first reading this 1st" day of June, 1999.
PASSED AND ADOPTED on second readi
ATTEST:
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CITY CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
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PROPOSED AVENTURA.ZONING MAP
(PENDING COMPREHENSIVE PLAN AMENDMENTS)
u-_.
RESIOCNTIAL SINGLE ,AMIL Y DISTRICT
RESIDENTIAL SINGLE ,AMIL Y DISTRICT
MUL TI-, AHIL Y MEDIUM DENSITY RESIOCNTlAL
MUl TI-,AHIL Y MEDIUM DENSITY RESIDENTIAL
MUl TI-,AMIL Y HIGH DENSITY RESIDENTIAL
NElliHBORHDlJD BUSINESS DISTRICT
COMMUNITY BUSINESS DISTRICT
HEAVY BUSINESS DISTRICT
TOliN CENTER DISTRICT
TOliN CENTER MARINE DISTRICT
O,nCE PARK DISTRICT
MEDICAL O,nCE DISTRICT
MI LIGHT INDUSTRIAL DISTRICT
_ COMMUNITY ,ACILlTlES DISTRICT
ROS;e, RECREATION OPEN SPACE
eNS CONSERV A TlDN DISTRICT
_ UTILITIES DISTRICT
CMS
eNS
Note: Subjed. lo adoption 01 an enabling amendment to the
comprehensive plan. &he following parcels are revised to
the ZoRng d1stJ1ct listed bek7.v:
~ District
"I MO, Medal Olfice Distnct
2 B 1, Neighborhood Buainess Distncl
3 81, Neighborhood Business Distrid
4 Te2. Town Center Marine DIsttld
5 82, Commlrity Business District
Pending the adoption of the above described
comprehensive plan amendment each ,parcel shall be
designated as shown on the above Avenb.n Zoning Map
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AVENTURAZONING MAP
RESIDENTIAL SINGLE FAMILY DISTRICT
RESIDENTIAL SINGLE FAMILY DISTRICT
MULTI-FAMILY MEDlUH DENSITY.RESIDENTlAL
MUL TI-FAMIL Y MEDIUM DENSITY RESIDENTIAL
MULTI-FAMILY HIGH DENSITY RESIDENTIAL
NEIGHBORHOOD BUSINESS DISTRICT
COMMUNITY BUSINESS DISTRICT
HEAVY BUSINESS DISTRICT
TDVN CENTER DISTRICT
TlNN CENTER MARINE DISTRICT
OFFICE PARK DISTRICT
MEDICAL OFFICE DISTRICT
LIGHT INDUSTRIAL DISTRICT
COMMUNITY FACILITIES DISTRICT
RECREATION OPEN SPACE
CONSERVATION DISTRICT
UTILITIES DISTRICT
eNS
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ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION
Page 1 of14
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ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION
Sec. 31-21. Definitions.
For the purposes of this chapter, the following words, terms and phrases shall have the meaning
herein set out. When these definitions include restrictions, conditions or limitations, such
restrictions, conditions or limitations shall be subject to enforcement upon the same basis as
other provisions of these Land Development Regulations.
Accessory use or accessory building shall mean a use of land or of a building or portion thereof
customarily incidental and subordinate to the principal use of the land or building and located on
the same lot with the principal use.
Addition (to an existing building) shall mean any walled and roofed expansion to the perimeter
of a building in which the addition is connected,by a common load-bearing wall other than a fire
wall. Any walled and roofed addition which is connected by a fire wall or is separated by
independent perimeter load-bearing walls shall constitute new construction.
Adult use shall mean any place in which a principal use is the exchange--for consideration in any
form, monetary or otherwise, for profit or not-for-profit--of materials or exhibitions, including
but not limited to, books, magazines, photographs, performances, videotapes, electronic media,
or movies, which have as their dominant theme matters depicting, describing, demonstrating or
relating to completely or to opaquely covered human genitals or pubic regions, buttocks, or
female breasts below a point immediately above the top of the areola, or human male genitals in
a discernibly turgid state, even if completely and opaquely covered, or which have as their
dominant theme matters depicting, describing, demonstrating or relating to human genitals in a
state of sexual stimulation or arousal, acts of human masturbation, sexual intercourse or sodomy,
or the fondling or other erotic touching of human genitals, pubic regions, buttocks or female
breasts.
Places which are considered adult uses shall include the location of any organization, association
or establishment, including any public or private enterprise, club, bar, lounge or nightclub in
which a principal use is the exchange--for consideration in any form, monetary or otherwise, for
profit or not-for-profit--of materials or exhibitions, including but not limited to, books,
magazines, photographs, performances, videotapes, electronic media, or movies, which have as
their dominant theme matters depicting, describing, demonstrating or relating to completely or
opaquely covered human genitals or pubic regions, buttocks, or female breasts below a point
immediately above the top of the areola, or human male genitals in a discernibly turgid state,
even if completely and opaquely covered, or which have as their dominant theme matters
depicting, describing, demonstrating or relating to human genitals in a state of sexual stimulation
or arousal, acts of human masturbation, sexual intercourse or sodomy, or the fondling or other '
erotic touching of human genitals, pubic regions, buttocks or female breasts.
Airport or heliport shall mean any area of land, or any manmade object or facility located
thereon, which is used, or intended for use, for the landing and takeoff of fixed wing aircraft or
vertical takeoff or landing of aircraft and any appurtenant areas which are used, or intended for
use, for airport buildings or other airport facilities or rights-of-way, together with all airport
buildings and facilities located on that area.
Alcoholic beverage shall mean any distilled spirit, liquor, beer or wine as defined by F.S. ~
561.01(4).
Alcoholic beverage sales C. D.P. beer and wine shall mean the sale of alcoholic beverages,
specifically limited to beer and/or wine, by an establishment licensed by the Florida Division of
Alcoholic Beverages and Tobacco for consumption on the premises (C.O.P.) of the
establishment selling the alcoholic beverages.
Alcoholic beverage sales c.o.P. beer. wine and liquor shall mean the sale of alcoholic
beverages, which may include beer, wine and/or liquor, by an establishment licensed by the
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ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION
Page 2 of 14
Florida Division of Alcoholic Beverages and Tobacco for consumption on the premises (C.O.P.)
of the establishment selling the alcoholic beverages.
Alcoholic beverage sales A.P.S. beer and wine shall mean the sale of alcoholic beverages,
specifically limited to beer and/or wine, by an establishment licensed by the Florida Division of
Alcoholic Beverages and Tobacco as an alcoholic package store (A.P.S.) for consumption off the
premises of the establishment selling the alcoholic beverages.
Alcoholic beverage sales A.P.S. beer. wine and liquor shall mean the sale of alcoholic beverages,
which may include beer, wine and/or liquor, by an establishment licensed by the Florida
Division of Alcoholic Beverages and Tobacco as an alcoholic package store (A.P.S.) for,
consumption off the premises of the establishment selling the alcoholic beverages.
Alley shall mean a through public right-of-way less than 25 feet in width which affords only a
secondary means of access to abutting property and commonly located to the rear or side of a
property.
Antenna shall mean a transmitting and/or receiving device mounted on a telecommunications ,
tower, building or structure and used in telecommunications (personal wireless) services that
radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies,
wireless communications signals and other communications signals including directional
antennas such as panel and microwave dish antennas, and omni-directional antennas such as
whips, but excluding radar antennas, amateur radio antennas and satellite earth stations.
Antenna dish, dish antenna, [or] satellite dish shall mean an antenna with a concave shape used
for the reception and/or transmission of radio signals to and from satellites.
Antenna tower shall mean a structure used to support an antenna at some height above the
ground.
Application for development approval shall mean a written request for approval of a proposed
use and for issuance of a development order, including, but not limited to, applications for
approval of permitted uses, plats, conditional uses, rezonings, site plans and variances, etc.
Area of special flood hazard shall mean that area within a community in the 100-year floodplain.
Assisted livingfacility (ALF) shan mean any facility, licensed by the State of Florida, which
undertakes to provide for a period exceeding 24 hours, housing, food service, personal services,
limited nursing services or limited mental health services to unrelated persons.
Attached residential shall mean a building with a common roof that houses more than one
dwelling unit.
Attached commercial shall mean a building with a common roof that houses more than one
commercial tenant.
Attached residential lot shall mean a fee simple ownership lot for the purpose of an attached
dwelling unit. These housing unit product types may include, but are not limited to, fee simple
duplex and townhouse units.
Attached residential--Multifamily shall mean a group of two or more dwelling units which are,
attached by one or more bearing walls. These housing unit product types include garden
apartments, townhouse units and may include other attached units.
Attached residential--Minimum lot area per unit shall mean the minimum required lot area of
any attached residential lot within a development parcel.
Awning shall mean a rooflike cover that is temporary or portable in nature and that projects from
the wall of a building. The purpose of an awning is to shield a doorway or window from the
elements.
Bars. lounges and nightclubs shan mean a commercial establishment whose primary business is
the sale of alcoholic beverages for consumption on premises and where under 50 percent of
gross receipts are related to food service. Bottle clubs as defmed by Florida Statutes shall also be
included.
Base flood shan mean the flood having a one percent chance of being equaled or exceeded in any
given year.
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Bottle clubs. See Bars, lounges and nightclubs.
BufJeryard shall mean an area of landscaping and open space around the perimeter of a
development parcel, or an area adjacent to a parking lot which is used to screen differing land
uses from each other. In some instances butferyards may also be used to satisfy minimum yard
requirements.
Building shall mean any structure, either temporary or permanent, having a roof, and used or
built for the shelter or enclosure of persons, animals, personal property or property of any kind.
This definition shal1 include tents, awnings or vehicles situated on private property and serving'
in any way the function of a building but shall not permit the use of temporary structur,es except
as provided in section 31-75 of this chapter.
Building code shall mean the South Florida Building Code, Miami-Dade County edition, as
amended.
Building envelope shall mean that area of the footprint of the primary building and parking
structures on site. A line forming the boundary of the footprint shall not be broken and all
buildings within the footprint shall be attached or touching SQ as to form a continuous surface
area.
Canal shall mean a body of water having a width of 100 feet or less for linear areas in excess of'
200 feet in length and used principally for the conveyance of water.
Canopy. See Awning.
Capacity shall mean the capability of a facility to serve the needs of a user such as the number of
vehicles a road Can safely and sufficiently carry.
Capital improvements shall mean the planning of, engineering for, acquisition ofland or
equipment, and the construction of improvements and facilities with a useful life of at least three
years, but does not include routine maintenance.
Carport shall mean a structure intended for vehicle storage not completely enclosed by walls.
Child or adult care center shall mean an enterprise involving the care of five or more children
and/or senior adults at one and the same time, either by day or night, which children and/or
senior adults are not foster children or related by blood or marriage to the operator. Adult care
centers shall not include those uses meeting the definition of assisted living facilities or nursing
home. .
Church. See religious facility.
City Manager shall mean the chief executive officer of the City as defined by the City Code who
shall have such duties as are legally prescribed.
Commercial recreation shall mean a business, or zoning district whose primary purpose is
recreational activities. Commercial recreation provides for major public and private commercial
recreational, civic and cultural facilities which offer recreational opportunities to residents and
tourists. Commercial recreation uses include but are not limited to sports arenas, racetracks,
theme parks, amusement parks and golf courses. Commercial recreation uses may include movie
theaters, bowling centers, health clubs, pool halls, spas or video arcades if they are accessory
uses to the main recreational uses.
Commercial use shall mean any use whose primary purpose is retail sales or professional offices
and services and that is not considered a heavy commercial use. Commercial uses may include,
but not be limited to: financial institutions; medical facilities; personal services; restaurants;
entertainment uses; smal1 appliance repair; printing; studios and galleries; instructional
businesses; and recreational uses such as movie theaters, bowling centers, health clubs, pool
halls, or video arcades. Uses permitted in this category shall be consistent with the City of
A ventura Comprehensive Plan and implementing regulations.
Commission shall mean the City Commission of the City of Aventura.
Community Development Director shall be the director of the Community Development
Department as appointed by the City Manager.
Comprehensive Plan [or] Plan shall mean the City of Aventura's Comprehensive Plan as adopted
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by Ordinance No. 98-27 and as may be amended from time to time.
Conditional use shall mean uses which may be allowed under certain circumstances in a
particular zoning district after review and approval by the City Commission.
Condominium shall mean the form of real estate ownership defined by the Florida Condominium
Act, F.S. ch. 718, as amended from time to time.
Contiguous shall mean next to, abutting, or touching and having a boundary, or portion thereof,
that is common to both properties.
Density or gross density shall mean the number of residential dwelling units or rooms allocated
to the project divided by the total project acreage. See also Density. net.
Density, net shall mean the number of residential dwelling units divided by the net parcel area.
Detached residential shall mean an individual residential dwelling that is not attached to another
dwelling unit.
Detached residential--Minimum lot area per unit shall mean the minimum required lot area of
any detached residential lot within a development parcel.
Developer shall mean any person, corporation, partnership, other legal entities or a governmental
agency, undertaking any development as defmed in these LDRs.
Development shall mean the carrying out of any building activity or rnining operation, the
making of any material change in the use or appearance of any structure or land, Or the dividing
of land into parcels. The following activities or uses shall be taken for the purposes of these
regulations to constitute "development":
(1) A reconstruction, alteration of or material change in the extent or appearance of a structure
on land.
(2) A change in the intensity of use of land, such as an increase in the number of dwelling
units in a structure or on land, or an increase in the number of businesses, manufacturing
establislunents, or offices.
(3) Alteration of a shore or bank of a lake, pond, or canal, including any "coastal construction"
as defmed in F.S, ~ 161.021.
(4) Commencement of drilling, mining, or excavation on a parcel ofland, except to obtain soil
samples.
(5) Demolition of a structure.
(6) Clearing ofland as an adjunct of construction.
(7) Deposit of refuse, solid or liquid waste, or fill on a parcel of land.
The following operations or uses shall not be construed for the purpose of these regulations to
involve "development":
(1) Work by a highway or road agency or railroad company for the maintenance of a road or
railroad track, if the work is carried out on land within the boundaries of the right-of-way.
(2) Work by any utility and other persons engaged in the distribution or transmission of gas,
water, sewerage, or electricity, for the purpose of inspecting, repairing, renewing, or constructing
within any established rights-of-way any sewers, mains, pipes, cables, utility tunnels,
powerlines, towers, poles, tracks, or the like.
(3) Work for the maintenance, renewal, or alteration of any structure, if the work affects only
the interior or the color of the structure or the decoration of the exterior of the structure.
(4) The use of any structure or land devoted to dwelling uses for any purposes customarily
incidentalto enjoyment of the dwelling.
(5) A change in the ownership or form of ownership of any parcel or structure.
(6) The creation or termination of rights of access, riparian rights, easements, covenants
concerning development of land, or other rights in land.
(7) The use of any land for the purpose of growing plants, crops, trees, and other agriculture or
forestry products; raising livestock; or for other agricultural purposes.
(8) A change in use of a structure from a use within a zoning district to another use in the
same zoning district.
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Development includes all other development customarily associated with it unless otherwise
specified. When appropriate to the context, development refers to the act of development or to
the result of development. Reference to any specific operation is not intended to mean that the
operation or activity when part of other operations or activities, is not development. Reference to
particular operations is not intended to limit the generality of this defInition.
Development agreement shall mean an agreement between an individual, partnership,
corporation or other governmental entity and the City for the express purpose of defining
responsibilities, scope of work, costs, payments, credits and any other relevant items relating to
the development of real property or municipal facilities. A development agreement may take the
form of any legally valid contract approved by the City Manager, City Attorney or designee.
Development approval, development order or development permit shall mean any building
permit, site plan approval, conditional use approval, temporary use permit, subdivision approval,
change ofland use district boundary, plan amendment, or any other official action to grant, deny
or grant with conditions, issued by any official, commission, or board of the City having the
effect of permitting development. See also F.S. ~ 163.3164.
Development parcel shall mean a parcel of land and water used for residential or non-residential
structures, accessory structures, utilities, rights-of-way, easements, agriculture, open space and
other public or private uses.
Dish antenna. See Antenna dish.
Divided roadway shall mean a street where the opposing directional lanes of traffic are separated
by a median or center turn lane.
Drive-through or Drive-thru shall mean a facility designed to accommodate pickup of food,
merchandise or services by a motor vehicle momentarily at rest in a driveway expressly designed
for that purpose. -
Duplex unit shall mean two dwelling units connected by a one-hour or greater fire-resistive wall.
Dwelling unit(s) shall mean a house, apartment, or condominium unit, trailer, group of rooms, or
a single room intended for occupancy as separate living quarters with direct access from the
outside of the building or through a common hall and with complete kitchen facilities for the
exclusive use of the occupants, including rental units contained in a multi-unit structure or
complex which are licensed by the State Department of Business Regulation, Division of Hotels
and Restaurants, as "apartments", "rental condominiums" and "retirement housing" .
Emergency shaH mean any occurrence, or threat thereof, whether accidental or natural, caused by
man, in war or peace, which results or may result in substantial injury or harm to the population
or substantial damage to or loss of property or public funds as declared by the City Manager or
designee.
Engineering construction permit shaH mean a permit issued by the City Engineer prior to the
construction of any public improvements on public or private property.
Excavation shall mean removal or recovery by any means whatsoever of soil, rock,minerals,
mineral substances or organic substances other than vegetation from water or land on or beneath
the surface therefore ,or beneath the land surface whether exposed or submerged.
Exceptional hardship shaH mean a burden on a property owner that substantiaHy differs in kind
or magnitude from the burden imposed on other similarly-situated property owners in the same
land use district as a result of adoption of these LDRs.
Fire code shall mean the South Florida Building Code and other codes adopted by the City of
A ventura for the prevention or control of fires.
FAA shall mean the Federal Aviation Administration.
Fence shall mean an artificiaHy constructed barrier of any material or combination of materials
erected to enclose, screen, or separate areas.
Finished elevation shall mean the proposed elevation of the land surface of a site after
completion of all site preparation work.
Flood or flooding shaH mean a general and temporary condition of partial or complete
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ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION
Page 6 of 14
inundation of normally dry land areas from the overflow of tidal waters or the unusual and rapid
accumulation of runoff of surface waters from any surface.
Flood Insurance Rate Map (FIRM) shall mean the official map on which the Federal Emergency
Management Agency has delineated both the areas of special flood hazard and the risk premium
zones applicable.
Floodplain shall have the same meaning as Area of specialjlood hazard.
Floodproojing shall mean a combination of structural and/or non-structural additions, changes,
or adjustments to properties or structures subject to flooding which will reduce or eliminAte
flood damages to properties, water and sewer facilities, structures, and contents of buildings.
Floor area shall mean the sum of the gross horizontal areas of each story of the principal
building, measured from the exterior walls or from the centerline of party walls, including the
floor area of accessory uses and of accessory buildings and structures.
Floor area ratio (FAR) shall mean the number calculated by dividing the gross floor area of the
building (or buildings) on a lot by the gross area of that lot.
Footprint shaH mean a continuous surface area composed of building foundation(s).
Freestanding commercial shaH mean a structure used for commercial uses which does not share
common walls or a roof with another building. '
Front facade area shaH mean the area of a structure's or business' front surface area. The facade
area shall include doors and windows. The facade area shall not include canopies, overhang
areas or other architectural embeHishments.
Front street at street corners, or in other situations where a lot abuts more than one street, the
front street shall be the street upon which the lot address is based. If no address has been
assigned, then the side upon which the lot has the least frontage is the front street. In the case of
unusual lot configurations, the front street shall be as determined by the community development
director.
Functional integrity shall mean the completeness and natural stability of an assemblage of native
plants and animals as indicated by measures of continuity, species diversity, species
interdependence and biomass. ,
Future Land Use Map or Land Use Plan shaH mean the adopted Future Land Use Map of the
Land Use Element of the City of Aventura Comprehensive Plan, as defined in Rule 9J-5 of the
Florida Administrative Code.
Golf course shaH mean a nine- or eighteen-hole golf course, and driving ranges. Club facilities
such as locker rooms, restaurants and lounges, pro shops, and other accessory uses are
considered part of a golf course.
Governmental agency shall mean:
(1) The United States or any department, commission, agency, or other instrumentality
thereof;
(2) The State of Florida or any department, commission, agency, or other instrumentality
thereof;
(3) Any local government or any department, commission, agency, or other instrumentality
thereof; or
(4) Any school board or other special district, authority, or governmental entity.
Grade shaH mean the highest natural elevation of the ground surface, prior to construction,
measured from the crown or curb of the nearest road at the center of the property, whichever is
, higher.
Gross acre or gross area shaH mean the total area of a parcel including land and water.
Gross jloor area (GF A) shall mean the floor area inside of the exterior walls including elevators,
stair wells, common corridors, trash rooms, common lobbies, common rest rooms, meter rooms
and ancillary power equipment rooms.
Ground disturbing activity shaH mean excavation or removal of vegetation.
Hazardous materials shaH have the same meaning as that found in the South Florida Building
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Code.
Height shall mean the vertical distance between the finished elevation at the center of the front
of the building to the highest point of the roof surface, excluding mechanical equipment,
chimneys, spires, steeples, radio or television antenna, flag poles, solar apparatus and utility
poles. The height of a structure shall be measured to the mean height between eaves and ridge
for a gable, hip and gambrel roof and to the highest point, excluding parapet, of a flat roof and to
the deckline of a mansard roof.
Home occupation shall mean a business or occupation conducted, for limited business activities
in a residential district.
Hospital shall mean a medical facility which provides for both inpatient and outpatient treatment
and has overnight accommodations, wherein professional services concerning personal health of
humans are administered by medical doctors, chiropractors, osteopaths, optometrists, dentists or
any other such profession, which may lawfully be practiced in the State of Florida.
Hotel shall mean a commercial establishment which provides temporary overnight sleeping
accommodations for the general public. No more than five percent of the individual hotel units
shall be occupied for more than 90 continuous days by the same occupant of the hotel unit (the
"duration of stay restriction"). It shall constitute a violation of this duration of stay restriction to
allow any person to attempt to circumvent this provision by: relocating to another unit in the
same hotel; or by allowing a person to temporarily check out of the hotel and subsequently re-
register or check back into the hotel for such purpose. Principal access to all rental rooms shall
be through an inside lobby or office supervised by a person in charge at all hours. Other typical
hotel services must be offered including daily linen and maid service, and receipt and
disbursement of keys and mail by the attendant at the desk in the lobby or office, for the
occupants of the hotel. No hotel facility shall be converted to or used as a multi-family
residential dwelling. Compliance with the restrictions, conditions or limitations set forth in this
definition, shall be certified by the licensee at the time of issuance and renewal of the applicable
City occupational license. '
Land shall mean the earth, at or below the surface, that lies above mean high water for water
bodies.
Land use shall mean:
(1) The development that has occurred on land; or
(2) The development that is proposed on land; or
(3) A use that is permitted or permissible on the land under the Plan, or element or portion
thereof, or LDRs.
Light industrial use shall mean an industrial use for the manufacture, fabricating, processing,
converting, warehousing, distribution, wholesaling, altering and assembling of products,
repairing, packaging or treatment of goods, the nature of which is that it will not cause or result
in; dissemination of dust, smoke, noxious gas, fumes, odor, noise, vibration, or excessive light
beyond the boundaries of the lot on which the use is conducted; menace by reason of fire,
explosion, or other physical hazards; harmful discharge of waste materials including hazardous
materials; or unusual traffic hazards or congestion due to type or amount of vehicles required by
or attracted to the use.
Local planning agency (LPA) in accordance with Ordinance 96-27 of the City of Aventura, the
City Commission has been designated as the Local Planning Agency for the City pursuant to
F.S. ~ 163.3174.
Lot shall mean a designated parcel, tract, or area ofland established by plat, subdivision, or as
otherwise permitted by law, to be separately owned, used, developed, or built upon. A lot has an
assigned number, letter or other name through which it may be identified.
Lot of record shall mean either a lot or contiguous lots which exist, under single ownership at the
time of adoption of this chapter, and which are part ofa subdivision, the plat of which has been
recorded in the Public Records of Miami-Dade County; or any parcel ofland not part of a
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subdivision, that has been officially recorded by deed in the Public Records of Miami-Dade
County; provided that the deed for the lot or parcel was recorded prior to the effective date of
zoning in the area where the lot is located.
Lowest floor shall mean the lowest enclosed area (including basement) of a structure. An
unfinished or flood resistant enclosure, used solely for parking of vehicles (such as a garage or
carport), building access, or storage in any area other than a basement area, is not considered the
building's lowe~ floor.
Master Zoning Plan shall mean a Master Zoning Plan submitted and approved according to the
requirements of this chapter.
Mean sea level shall mean the average height of the sea for all stages of the tide. It is used as a
reference for establishing various elevations within the floodplain. For the purposes of these
regulations, the term is synonymous with National Geodetic Vertical Datum (NGVD).
Motel shall mean a commercial establishment which provides overnight sleeping
accommodations for the public. Principal access to all rental rooms shall be from the outside and
parking spaces shall be oriented in such a manner so as to facilitate direct access from such units
to the automobiles of the renters.
Multi-family residential dwelling shall mean any group of more than four dwelling units
occupying a single building site, composed of one or more buildings.
Municipalfacilities shall mean facilities provided by the City to serve the residents of the City.
These facilities may include police and fire department stations; municipal utilities including but
not limited to water and wastewater plants, pumping facilities, and disposal facilities; municipal
offices; city parks; civic and cultural buildings or any other uses which the City Commission
finds serve the residents of the City.
Net acre or net parcel area shall mean the total area of a development parcel less water bodies,
jurisdictional wetlands, rights-of-way, and land dedicated or reserved for public parks (excluding
tot lots and private recreation areas).
Net density. See Density, net.
Netfloor area (NFA) shall mean the floor area inside of the exterior walls excluding elevators,
stair wells, common corridors, trash rooms, common lobbies, common rest rooms, meter rooms,
ancillary power equipment rooms, and all rooms with ceilings less than six feet high.
New construction shall mean the commencement of construction on or after the effective date of
these LDRs.
Nonconforming lot of record shall mean a lot of record which does not meet the area or width
requirements of these regulations for the zoning district in which it is located.
Nonconforming structure shall mean a structure lawfully established prior to and existing on the
effective date of these regulations, or any amendment hereto which renders the structure
nonconforming, which no longer conforms to the requirements of these regulations for the
zoning district in which it is located.
Nonconforming use shall mean a use lawfully established prior to and being conducted on the
effective date of these regulations, or any amendment hereto which renders the use
nonconforming, which no longer conforms to the requirements of these regulations for the
zoning district in which it is located.
Nursery school shall mean any structure, lot or premise maintained or operated for the training
and/or care (other than medical care) of pre-school age children.
Nursing home or home for the aged shall mean any facility, licensed by the State of Florida,
which undertakes to provide for a period exceeding 24 hours, nursing care, personal care or
custodial care to unrelated persons, who by reason of illness, physical infirmity or advanced age
require such services but does not include any place providing care and treatment primarily for
the acutely ill.
Office shall mean a use where the clerical, administrative, financial or consulting aspects of
business, professional, medical or governmental services are conducted. Office uses shall
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ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION
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include, but not be limited to; financial institutions, insurance offices, medical offices, or
business consulting services. Office shall not include the retail sale of merchandise, industrial
uses or recreational uses.
Officer or official shall mean an officer or official of the City of A ventura.
Office park shall mean a zoning district and land use district whose primary purpose is to permit
planned office complexes in a campus-like atmosphere with substantial buildings and ample
open space.
Open space shall mean any area ofland and/or water, which is open and unobstructed from the
ground to the sky including wetland mitigation areas and areas maintained in a natural and
undisturbed character. Open space shall include private parks, bufferyards, common landscaped
areas. Open space shall also include bicycle and pedestrian paths external to a development
parcel. Open space shall not include submerged areas below the control water elevation
(exclusive of wetland areas), or areas covered with buildings, parking areas, driveways and other
paved areas.
Outdoor lighting shaH mean any light source that is instaHed or mounted outside of an enclosed
building, excluding street lights within a right-of-way.
Owner shall mean any part owner, joint owner, tenant in common, tenant in partnership, joint
tenant or tenant by the entirety with legal or beneficial title in whole or in part of a building or
land.
Parcel shall mean a contiguous lot or tract ofland owned and recorded as the property of the
same person or persons or controHed by a single entity.
Permeable area [or] pervious area shall mean any portion of the ground unobstrUcted by a
surface which prevents the natural seepage of water into the ground.
Person shall mean an individual, corporation, governmental agency, business trust, estate, trust,
partnership, association, two or more persons having a joint or common interest, or any other
legal entity.
Plan. See Comprehensive Plan.
Platted lot shaH mean a lot which is identified on a recorded plat.
Plot. See Lot.
Previously ownedjewelry shaH mean any item of personal property or object of value previously
owned or used, which is not sold as new, and which is a watch or which contains one or more
diamonds, emeralds, rubies, sapphires or other precious gemstone.
Previously owned precious metals means any item of personal property or object of value,
previously owned or used, which is not sold as new, and which contains gold, silver, platinum or
other precious metal.
Principal building shall mean a building which is occupied by, and devoted to, a principal use or
an addition to an existing principal building which is larger than the original existing building. In
determining whether a building is of primary importance, the use of the entire parcel shall be
considered. There may be more than one principal building on a parcel.
Pub. See Restaurant.
Public buildings and uses shaH mean office and service buildings, uses, or facilities owned or
operated by a governmental agency.
Public utility shall mean any publicly owned, franchised or regulated facility for rendering
electrical, gas, communications, transportation, water supply, sewage disposal, drainage, garbage
or refuse disposal and fire protection to the general public.
Recreational vehicle shaH mean a vehicle or portable structure built on a chassis, without
permanent foundation, which can be towed, hauled or driven and primarily designed as
temporary living accommodation for travel, recreation, or vacation use, including but not limited
to, travel trailers, truck campers, camping trailers, and motor homes.
Rehabilitation centers shall mean any facility for the treatment and rehabilitation of drug
dependents as defined in F.S. ch. 397.
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Religious facility shall mean any church, synagogue, denominational or ecclesiastical
organization having an established place for worship in the City at which nonprofit religious
services and activities are regularly conducted.
Residence or residential use shall mean used or intended for use exclusively for dwelling
purposes, as applied to any lot, plat, plot, parcel, tract, area or building, but not including hotel
rooms.
Restaurant shall mean a commercial establishment where food and beverages are primarily
ordered from individual menus, served at tables, and consumed on premises.
Retail shall mean establishments engaged in selling goods or merchandise directly to the
ultimate consumer for personal or household consumption and rendering services incidental to
the sale of such goods.
Right-of-way shall mean all land dedicated for public transportation, whether public or private.
Road capacity shall mean the maximum number of vehicles which can pass over a given section
of a roadway, during a given time period under prevailing traffic conditions as defined in the
current version of the Highway Capacity Manual.
Sale shall mean the exchange of a good, service, product or other item for consideration,
regardless of the form that consideration takes.
Satellite dish See Antenna dish.
Schools shall mean an institution for instruction and learning whether public or private;
including pre-schools, grade schools, middle schools, high schools, colleges and universities,
however not including private schools of professional training or day care centers.
Setback shall have the same meaning as Yard.
Sidewalk shall mean a concrete pedestrian path no less than four feet in width which runs
parallel to and within a right-of-way; or connects two or more non-residential parcels; or
connects a parking area to the entrance of a building.
Single-family shall mean a one-family detached dwelling utilized for individually owned one-
family homes.
Small scale development shall have the same meaning given in F.S. ch. l63.3187(1)(c)1 et seq.
Street or road, arterial shall mean a route providing service, which is relatively continuous, and
of relatively high traffic volume, long average trip length, high operating speed, and high
mobility'importance. Arterial roads shall generally be those roads which provide access from
collector roads, non-residential driveways or limited access highways. A street having that
meaning given in F.S. ~ 334.03(15), as may be amended from time to time. Also any street
designated as a state principal arterial, state minor arterial or minor arterial according to the
Transportation Element of the Comprehensive Plan.
Street or road, collector shall mean a route providing service which is of relatively moderate
average traffic volume, moderate average trip length and moderate average operating speed.
Such a route also collects and distributes traffic between local roads or arterial roads and serves
as a linkage between land access and mobility needs. Also any street designated as an urban
collector or local urban collector in the Transportation Element of the Comprehensive Plan.
Street or road, local shall mean a road designated and maintained primarily to provide access to
abutting residential property. A local street or road is of limited continuity and is not intended for
through traffic. A local street or road is not a major street or road.
Street or road, major shall mean any street or road with a right-of-way greater than or equal to
60 feet. Also any street designated as a State principal arterial, State minor arterial, minor
arterial, urban collector, local urban collector, or any future roadway indicated as having more
than two lanes by the year 2015 according to the Transportation Element of the Comprehensive
Plan. See also Street or road, arterial and Street or road, collector.
Street or road, minor shall mean any street or road with a right-of-way less than 60 feet. See also
Street or road, local.
Street or road, private shall mean a street that has not been accepted by the City, Miami-Dade
108
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County or the State of Florida for public right.of.way purposes.
Street or road. public shall mean a street that has been accepted by the City, Miami-Dade
County or the State of Florida for public right-of-way purposes.
Structure shall mean anything constructed, installed, or portable, the use of which requires a
location on a parcel of land. It includes fixed or movable buildings which can be used for
housing, business, commercial, storage, agricultural, or office purposes, either temporarily or
permanently. Structure also includes roads, driveways, walkways, paths, fences, patios, decks,
swimming pools, tennis courts, poles, pipelines, transmission lines, tracks, signs, cisterns, sheds,
docks, and other accessory construction.
Subdivision shall mean the division of property into two or more lots, parcels, tracts, blocks,
sites, units or any other division of land, or if the establislunent of new streets and alleys is
involved, any division of such parcel. The term includes resubdivisions and, when appropriate to
the text, relates to the process of subdividing or to the lands or areas subdivided.
Substantial improvement shall mean any repair, reconstruction or improvement of a structure
conducted within any 12-month period, the cost of which equals or exceeds 50 percent of the
predestruction reconstruction value of the structure, as determined by the Property Appraiser of
Miami-Dade County, either (1) before the improvement or repair is started, or (2) if the structure
has been damaged and is being restored, before the damage occurred. For the purposes of this
definition, substantial improvement is considered to occur when the first alteration of any wall,
ceiling, floor, or other structural part of the building commences, whether or not that alteration
affects the external dimension of the structure. The term does not, however, include either (I)
any project for improvement of a structure to comply with existing state or local health, sanitary
or safety code specifications which are necessary solely to assure safe living conditions, or (2)
any alteration of a structure listed on the National Register of Historic Places, the State Inventory
of Historic Places, or any inventory oflocal historic places.
Telecommunicationfacilities shall mean any facility that is used to provide one or more
telecommunications services, including, without limitation, radio transmitting
telecommunications towers, other supporting structures, and associated facilities used to transmit
telecommunications signals. An open video system is not a telecommunications facility to the
extent that it provides only video services; a cable system is not a telecommunications facility to
the extent that it provides only cable service. Also, [ telecommunication facilities ] includes any
antenna or broadcast equipment located outdoors which is used for telecommunications and not
otherwise defined as a dish antenna.
Temporary uses shall mean uses that are required in the construction phase of development or
are uniquely temporary or seasonal in nature, including: Christmas tree sales, contractors' model
homes, contractors' project offices, project sales offices, seasonal sales of farm produce,
carnivals and tent meetings or events.
Total floor area. See Gross floor area.
Townhouse shall mean more than two attached dwelling units that are constructed adjacent to
each other and not one on top of another. These dwelling unit types may include tri-plex and
four-plex structures.
Trafficways Plan shall mean the Dade County Trafficways Plan or any subsequently adopted
Major and Collector Street Plan of the City of Aventura.
Tree survey shall mean a document meeting the requirements of21-HH F.A.C., which can be
overlaid directly upon a site plan and must provide, at a minimum, the following information:
(1) The location plotted by accurate techniques, in relation to all proposed development, of all
existing non-nuisance trees which are proposed to be destroyed, relocated, impacted, or
preserved;
(2) The common and scientific names of each tree; and
(3) The DBH of each tree, or if a multiple trunk tree, the sum DBH for all trunks.
Trip shall mean a one-way movement of vehicular travel from an origin (one trip end) to a
109
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ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION
Page 12 of 14
destination (the other trip end). For the purposes of these provisions, trip shall have the meaning
which it has in commonly accepted traffic engineering practice and which is substantially the
same as that definition in the ITE Trip Generation Manual, current edition.
Trip generation shall mean the total number of vehicle trip ends produced by a specific land use
or activity.
Useable open space shall mean common land areas, either landscaped or developed as active
recreational, but not located within or on top of a residential structure.
Variance shall mean a grant of relief from the requirements of these regulations which permits
construction in a manner otherwise prohibited by these regulations where specific enforcement
would result in unnecessary hardship.
Vehicular use area shall mean areas on a parcel ofland used for traffic circulation and parking
which include, but are not limited to, driveways, parking spaces and access aisles, stacking areas
and by-pass lanes for drive-through windows, or outdoor retail sales and display areas for new or
used cars, trucks, boats or recreational vehicles.
Warehouse shall mean a business or building used primarily for storage and distribution of
goods and materials by manufactures, wholesalers, and distributors.
Warehouse - selfstorage shall mean a business or building used primarily for storage of
materials and personal goods by businesses and persons. A warehouse - self storage building is
leased in small increments to businesses and persons which do not conduct any business activity
from the leased area and do not require an occupational license pursuant to the City Code.
Wetland shall mean that land which is subject to F.S. ~ 373.019.
Wetland mitigation shall mean compensation for, or replacement of, lost or impacted wetland
areas and functional values by the creation of new wetland areas or by the enhancement or
preservation of existing wetland areas.
Wetland mitigation bank means an area designated and licensed for the purpose of providing
compensation for wetland impacts, and includes a resource analysis, credit assignment system
and long term maintenance plan that assures persistence of the mitigation bank and the wetland
functional values.
Yard shall mean an open area between a structure and a parcel, lot or street easementlright-of-
way line which is within a parcel boundary; or that area within a parcel between a building and
another building. 1bis area shall be unoccupied and unobstructed from the ground upward,
except for permitted encroachments otherwise allowed in these LDRs. In measuring a required
yard, the horizontal distance from the furthermost projection of the main building shaH be used.
Yard, front shall mean a yard extending across the full width of the plot between the front plot
line and the required set back line. Every required front yard shall be measured at the closest
point between the lot or parcel line and the structure. See also Front street.
Yard, rear shall mean a yard extending across the full width of the plot between the rear plot line
and the required set back line. Every required rear yard shall be measured at the closest point
between the lot or parcel line and the structure.
Yard. required shall mean a front, side or rear yard, in which no structure shall be erected except
as permitted by these LDRs. Required yards for a building shall not overlap the required yards of
another building.
Yard, side shall mean a yard extending from the front yard to the rear yard, between the side plat
line and the required set back line. Every required side yard shall be measured at the closest
point between the lot or parcel line and the structure.
Zoning parcel shall mean a parcel ofland zoned for a specific zoning district by adoption of the
Official Zoning Map or a parcel of land rezoned by ordinance.
(Ord. No. 99-09, ~ l(Exh. A, ~ 201), 7-13-99; Ord. No. 2001-15, ~ 1, 10-2-01; Ord. No. 2002-
07, ~ 1,3-5-02; Ord. No. 2002-14, ~ 1,6-4-02; Ord. No. 2002-22, ~ 1,9-3-02; Ord.No. 2005-01,
~ I, 1-4-05)
110
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Page 13 of 14
, .
Sec. 31-22. Rules of construction.
In the interpretation of the language of these LDRs, the rules set out in this section shall be
observed unless such construction would be inconsistent with the manifest intent of the City
Co'mmission.
(1) Generally. Tenns used in these regulations, unless otherwise specifically provided, shall
have the commonly understood meanings, per definition contained within the Plan, or the
meaning reasonably ascribed to them by the City Commission.
In the interpretation and application of any provision of these regulations, the provision shall be
held to be the minimum requirement adopted for the promotion of the public health, safety,
comfort, convenience and general welfare. Where any provision of these LDRs imposes greater
restrictions upon the subject matter than a general provision imposed by another provision of
these regulations or other City ordinance, the provision imposing the greater restriction or
regulation shall be deemed to be controlling.
(2) Computation of time. The time within which an act is to be performed and completed shall
be computed by excluding the first and including the last day; if the last day is a Saturday,
Sunday or legal holiday recognized by the City, that day shall be excluded.
(3) Administrative delegation of authority. Whenever a provision of these LDRs requires any
City officer or employee to do some act or perform some duty, these Land Development
Regulations shall be construed to authorize delegation to professional-level subordinates to
perform the required act or duty unless the terms of the provision'or section specify otherwise.
Following any reorganization of the structure or duties of existing departments, authority shall
be delegated to the appropriate successor department or division.
(4) Gender. Words importing the masculine gender shall be construed to include the feminine
and neuter.
(5) Non-technical and technical words. Words and phrases shall be construed according to the
common and approved usage of the language. Technical words and phrases and such others as
may have acquired a particular and appropriate meaning in law shall be construed and
understood according to such meaning.
(6) Number. A word importing the singular number may extend and be applied to several
persons or things as well as to one person or thing. The use of the plural number shall be deemed
to include any single person or thing.
'(7) Shall, may. The word "shall" is mandatory; "may" is permissive.
(8) Tense. Words used in the past or present tense include the future as well as the past or
present
(9) Written or in writing. The term "written" or "in writing" shall be construed to include any
representation of words, letters or figures, whether by printing or otherwise:
(10) Year. The word "year" shall mean a calendar year, unless otherwise indicated.
(11) Day. The word "day" shall mean a calendar day, unless otherwise indicated.
(12) Boundaries. Interpretations regarding boundaries of zoning districts shown on the
Official Zoning Map shall be made in accordance with the following:
a. Centerlines as boundaries. Where district boundaries appear to follow centerlines of streets,
alleys, easements, railroads and the like, they shall be construed as following such centerlines.
b. Property lines and the like as boundaries. Where district boundaries appear to follow street
edge, lot, property or similar lines, they shall be construed as following such lines.
c. Boundaries in or adjacent to bodies of water.
1. Where district boundaries appear to follow shorelines or centerlines of bodies of water, they
shall be construed as following such shore lines or centerlines. In case of change in shore lines or
course or extent of water, the boundaries shall be construed as moving with the change.
2. Boundaries indicated as entering any body of water, but not continuing to intersect with
other zoning boundaries or with the limits of jurisdiction of the City, shall be construed as
extending in the direction in which they enter the body of water to intersect with other zoning
111
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ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION
Page 140f14
. .
boundaries or with the limits of jurisdiction.
d. Boundaries indicated as parallel to or extensions offeatures listed. Where district
boundaries are indicated as parallel to or extension of features listed above, they shall be so
construed.
e. Dimensions. Where dimensions are not otherwise indicated on or by the Official Zoning
Map, the scale of the map shall govern.
f. Variation of actual location from mapped location. Where physical or cultural features
existing on the ground are at variance with those shown on or by the Official Zoning Map, the
actual location shall govern.
(Ord. No. 99-09, ~ l(Exh. A, ~ 202), 7-13-99)
Sees. 31-23--31-30. Reserved.
112
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
Page 1 of22
ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
Sec. 31-71. Procedures of general applicability.
(a) Who may file, An application for approval of a development permit may be filed only by
the owner of the land affected by the development permit or an agent of the owner specifically
authorized by the owner to file such an application. In the case of an amendment to the
Comprehensive Plan or Official Zoning Map, an application may be filed by the property owner
or the City of Aventura.
(b) Application requirements.
(1) Every application for a development permit shall be in a form specified by the Community
Development Department and shall be accompanied by a fee, as established from time to time by
the City, to defray the costs of processing and reviewing the application and the required notice.
The application shall be prepared in the appropriate number of copies, accompanied by such
plans, data, or documents specified by the application form or by the Community Development
Director.
(2) The application form shall include each of the following additional items:
a. Applicant representative affidavit. Each individual or entity applying for a development
permit must submit, with the application, an "applicant representative affidavit". The affidavit
must be on,a form provided by the City and be signed by an authorized representative of the
individual or entity applying for the development permit, and the owner of the property subject
to the application (if different), whose signatures must be notarized. The form for the affidavit
shall be prepared and distributed by the Community Development Director or his or her
designee, and shall identify all persons representing the individual or entity applying for the
development permit in cOImection with the application, including, but not limited to, all
attorneys, architects, landscape architects, engineers and lobbyists (the "representatives"). Any
statement or representation made by any person listed on the applicant representative affidavit
shall be binding upon the individual or entity applying for the development permit and the owner
of the subject property.
b. Business relationship affidavit, Each individual or entity applying for a development permit,
the owner of the property subject to the application, and each individual or entity appearing on
the applicant representative affidavit (including representatives) must submit, with the
application, a "business relationship affidavit." The affidavit must be on a form provided by the
City and be signed by an authorized representative of the individual or entity submitting the
affidavit, whose signature must be notarized. The form for the affidavit shall be prepared and
distributed by the Community Development Director or his or her designee, and shall require the
individual or entity providing the affidavit to disclose whether it has any business relationships
with any member of the City Commission or any City Advisory Board to which the application
will be presented, and, if so, disclose the identity of the City Commission or City Advisory
Board Member with which the individual or entity submitting the affidavit has a business
relationship and the nature of the business relationship.
c. Definition. The term "business relationship," as used herein, is defined in section 2-395 of
the City Code.
d. Duty to supplement affidavits, If, at any time prior to City Advisory Board or City
Commission consideration of an application for a development permit, the information contained
in any applicant representative affidavit or business relationship affidavit becomes incorrect or
incomplete, the person or entity submitting the affidavit must supplement the affidavit and, if the
supplementation requires the submission of additional applicant representative affidavits or
business relationship affidavits, ensure that such affidavits are also filed with the City. If any
supplementary affidavits are submitted less than seven days before the application is scheduled
for consideration by the City Commission or any City Advisory Board, the application may be
(cHii) 001
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withdrawn by the Community Development Director or his or her designee, and placed on a
subsequent agenda.
(c) Preapplication coriference, The Community Development Director shall, upon request of
the applicant, schedule and hold preapplication conferences for the purpose of reviewing the
proposed development prior to the formal submission of an application for development
approval. Formal application or filing of an application and plans with the Community
Development Department is not required for the preapplication conference. Failure of staff to
identify any requirements at a preapplication conference shall not constitute waiver of the
requirement by the decision-making body.
(d) Filing of applications. The Community Development Director shall establish application
filing deadlines and a review schedule for all applications. All applications for a development
permit filed with the Cornmunity Development Department shall be reviewed to determine
whether the application is complete.
If an application is incomplete the Community Development Department shall notify the
applicant in writing of the deficiencies. An application for development approval may not be
scheduled for public hearing until all required information has been submitted and the required
review agencies have completed their review.
Once an application is filed, from the time of filing of the application until the time of
preparation and distribution to the Commissioners of the City Manager's written
recommendation as part of the Commission Agenda item, pursuant to paragraph (e) of this
section, no applicant or applicant representative shall contact the City's professional staff (other
than the City Manager) concerning the application except in writing or except to respond to
specific requests from the City's professional staff.
(e) Public hearing and notices procedures. All public hearing and notice requirements shall be
provided in accordance with the provisions ofF.S. S 163.3184(15) for a change to the city's
adopted Future Land Use Map, F.S. S 166.041 for adoption of ordinances and resolutions, and
the City's quasi-judicial legislation as may be amended. When an application for a district
boundary change, changes in zoning regulations, appeals of administrative decisions, conditional
or temporary uses and variances is filed, it shall promptly be set for public hearing before the
City Commission. Written recommendations of the City Manager or his designee shall be
developed and such recommendations shall become a part of the hearing file and record, and
open for public inspection, Notice of the time and place of the public hearing describing the
nature of the application and street address of the property shall be published in a newspaper of
general circulation in the City not less then ten days prior to the public hearing. A courtesy
notice containing substantially the same information set forth in the published notice may be
mailed to the property owners ofrecord located within a radius of300 feet of the property
described in the application or such greater distance as the City Manager may prescribe;
provided, however, that failure to mail or receive such courtesy notice shall not affect action or
proceedings taken under this section. The property shall be posted no later than ten days prior to
the hearing in a manner conspicuous to the public, by a sign or signs containing information
concerning the application including but not limited to the applied for zoning action and the time
and place of the public hearing. All costs of advertising, mailing and posting shall be borne by
the applicant.
(f) Rescheduled meeting dates. Public hearings for applications may be deferred or continued
by the City Commission to a meeting date certain. The City Commission may waive further
notice except as provided for by F.S. ch. 166.
(g) Examination and copying of application and other documents, At any time during normal
business hours of the City, upon reasonable request, any person may examine an application for
development approval and materials submitted in support of or in opposition thereto. Copies of
such materials shall be made available upon prepayment of the appropriate fee and within a
reasonable time.
(c)(ii) 002
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
Page 3 of22
(h) Resubmission of applications after denial. An application for development 9.pproval m9.Y
not be resubmitted for reconsideration to the City Commission for a period of one year after the
date on which an application for the same development approval has been denied by City
Commission.
(i) Reliance on information presented by applicant, The City and its departments, boards and
agencies shall have the right to rely on the accuracy of statements, documents and all other
information presented to them by the applicant or his agent, in review of an application for
development approval issued.
G) Restriction upon variance and other development applications. Under those circumstances
in which work has been done or a use has been established or conducted without obtaining the
necessary building permit or development order, no application for a variance, conditional use,
temporary use, new use or site plan approval (the "approval") related to such work or to such use
may be considered by the City Commission, unless the zoning violation which resulted from the
conduct of such work or the establishment or conduct of such use, is first abated and removed, so
as to remedy the violation of the City's LDRs. Abatement and removal is required prior to the
application being heard by the City Commission.
Under those circumstances in which a permit or development order was issued for the conduct of
work or the establishment or conduct of a use, but which nevertheless gives rise to the necessity
for an approval application because of non-compliance with permit or development order
conditions or otherwise, no approval application shall be heard by the City Commission unless
the applicant has first posted with the City a satisfactory surety or cash bond. The bond shall be
in a form approved by the City Attorney, in an amount of penal sum approved by the City
Manager, and shall provide for removal of the structure, facility or the cessation of the use which
gave rise to the zoning violation necessitating the approval application, upon denial of the
application.
(k) Quasi-judicial proceedings, The following applications are quasi-judicial and shall comply
with the City's quasi-judicial legislation:
(1) Site specific rezoning.
(2) Conditional use applications.
(3) Variances, including, but not limited to: trees, signs, setback, distance requirements
between buildings or other variances permitted by this chapter.
(4) Development of regional impact.
(5) Any other development approval deemed to be quasi-judicial by the City Attorney.
(I) Time limit. Within one year after the Commission takes affirmative action approving an
application for a variance, conditional use, other quasi-judicial zoning approval (other than a
rezoning) or site plan approval (the "approval"), the approval must be utilized in accordance with
its terms. In the event that the approval is not timely utilized, the approval by the Commission
shall automatically expire and shall be considered void and of no effect. When taking affirmative
action to approve an application, the Commission may extend the time limitations set forth
above, by specifically authorizing a longer period oftime for utilization of the approval.
Additionally, the Commission may grant a time extension for utilization of the approval upon a
showing of good cause in an application for extension of time filed prior to the expiration of the
initial time period. An approval shall be deemed to have been utilized if the use pursuant thereto
shall have been established, or if a building permit has been issued, acted upon and the
development to which such approval is an integral part is progressively and continuously carried
to conclusion.
(m) Prior approvals. All approvals which have been granted prior to the effective date of this
chapter, shall be null and void and of no further force or effect if not utilized within one year
after the effective date of this chapter, unless vested rights are demonstrated pursuant to section
31-3(b)(2). The foregoing provision of this paragraph shall not apply if the governmental
resolution granting the approval expressly established a specific time limitation for utilizing the
(c)(ii) 003
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
Page 4 of 22
approval. In such instances, the time limitation established by such resolution shall prevail.
(Ord. No. 99-09, ~ l(Exh. A, ~ 501),7-13-99; Ord. No. 2001-11, ~ 2, 9-4-01; Ord. No. 2002-28,
~ 1, 11-12-02)
Sec. 31-72. Pennitted uses.
(a) Purpose, Pennitted uses are considered to be fundamentally appropriate within the district
in which they are located and are deemed to be consistent with the Comprehensive Plan. These
uses are permitted as of right, subject to the required pennits and procedures described in this
section. Permitted uses require final site plan review and approval for compliance with the
standards applicable to a particular pennitted use as provided in these LDRs.
(b) Permits required, Except as explicitly provided herein, no use designated as a pennitted
use in this chapter shall be established until after the person proposing such use has applied for
and received all required development pennits which may include; final plat approval, site plan
approval, a building pennit and a certificate of occupancy, all pursuant to the requirements of
these LDRs.
(Ord. No. 99-09, ~ 1(Exh. A, ~ 502),7-13-99)
Sec. 31-73. Conditional uses.
(a) Purpose, Conditional uses are generally compatible with the other land uses pennitted in a
zoning district but, because of their unique characteristics or potential impacts on the
surrounding neighborhood and the City as a whole, require individual review as to their location,
design, configuration, and/or operation for the particular use at the particular location proposed,
as well as the imposition of individualized conditions in order to ensure that the use is
compatible with the surrounding neighborhoods and appropriate at a particular location.
(b) Application requirements, No use designated as a conditional use shall be established until
after such use has received approval under the provisions of this section and has received all
other pennits required by these LDRs. An application for conditional use approval shall be filed
with the Community Development Department on fonns provided. The application shall include:
(1) A preliminary site plan, meeting the technical requirements for a final site plan.
(2) An application fee, as may be established from time to time by the City Commission.
(3) A written and graphic summary of the proposed project.
(4) Ownership affidavit and owner's sworn to consent, if applicable.
(5) Current certified survey.
(c) General standards of review. In addition to the standards set forth in these LDRs for the
particular use, all proposed conditional uses shall meet each of the following standards:
(1) The proposed use shall be consistent with the Comprehensive Plan;
(2) The establishment, maintenance or operation of the proposed use shall not be detrimental
to or endanger the public health, safety, or general welfare;
(3) The proposed use shall be consistent with the community character of the immediate
neighborhood of the proposed use;
(4) Utilities, roadway capacity, drainage, and other necessary public facilities, including
police, fire and emergency services, shall exist at the City's adopted levels of service, or will be
available concurrent with demand as provided for in the requirements of theses LDRs;
(5) Adequate measures exist or shall be taken to provide ingress and egress to the proposed
use in a manner that minimizes traffic congestion in the public streets;
(6) The establishment of the conditional use shall not impede the development of surrounding
properties for uses pennitted in the zoning district; and
(7) The design ofthe proposed use shall minimize adverse effects, including visual impacts, of
the proposed use on adjacent property through the use of building orientation, setbacks, buffers,
landscaping and other design criteria.
(d) Review by City Commission. The Community Development Department shall detennine
(c)(ii) 004
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
Page 5 of22
whether the proposed use complies with the general standards of review and use regulations and
development standards and all other applicable development regulations. The Community
Development Director shall transmit to the City Manager a copy of the written staff report
summarizing the facts of the ' case including all relevant documents and recommendations. The
City Manager shall schedule the proposed conditional use application for the next available
Commission meeting providing the required notice procedures are met.
(1) Public hearing. The City Commission shall hold one public hearing on the proposed
conditional use request.
(2) Action by City Commission. In considering a conditional use request the City Commission
shall review the proposed conditional use, the general purpose and standards of review set forth
in this section, the report and recommendation of the administration and any oral and written
comments received at the public hearing. Based upon the record developed at the public
hearings, the City Commission may:
a. By resolution approve the proposed conditional use with or without conditions;
b, Deny the proposed conditional use. '
(3) Conditions, The City Commission may attach such conditions to the approval as it deems
necessary to ensure the proposed use conforms to the standards set forth in the general standards
of review and to prevent or minimize adverse effects on other property in the neighborhood. The
City Commission may also require formal approval of a final site plan prior to the issuance of
building permits.
(e) Effect of approval or denial.
(1)' Eligibility to apply for building permit, etc, Approval of the application for conditional use
by the City Commission authorizes the applicant to proceed with any necessary applications for
site plan approval, building permits and other permits which the City may require for the
proposed development. No permit shall be issued for work which does not comply with the
terms of the conditional use approval.
(2) Expiration of conditional use approval. Unless otherwise provided in the approval, the
approval of a conditional use application shall be void if the recipient does not obtain a building
permit for the proposed development within 12 months after the date of the approved resolution.
An applicant who has obtained conditional use approval may request an extension of this time
period by filing within the 12-month period a letter stating the reasons for the request. The City
Commission may, by resolution or motion at a regular meeting, grant one extension of up to six
months for good cause shown by the applicant.
(3) Recision of approval by abandonment of use. Any discontinuation of an approved
conditional use for a period of 180 consecutive days shall constitute abandonment and shall
rescind the approval of the conditional use.
(f) Amendments and alterations to approved conditional uses.
(1) Except as provided under section 31-73(f)(2), any expansion to an approved conditional
use and any addition to or expansion of an existing conditional use shall require the same
application, review and approval as required under this section for the original approval of the
conditional use.
(2) Minor changes in the site plan or design details of an approved conditional use which are
consistent with the standards and conditions applying to the conditional use and which do not
result in additional external impacts, such as a minor shift in the location of a building or
structure, the realignment of parking spaces and aisles, the relocation of a driveway and the like,
may be approved by the City Manager or his designee without obtaining additional approvals.
Such minor changes will be submitted at building permit application in the form of a revised site
plan along with a copy of the originally approved site plan, clearly indicating the proposed minor
changes. No increase in the intensity, creation of variances or change in use shall be considered a
, minor change for the purposes of this section.
(Ord. No. 99-09, ~ l(Exh. A, ~ 503), 7-13-99)
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Sec. 31-74. New uses.
Those uses or enterprises similar to those enumerated in the Business (B) or Industrial (M)
Districts will be permitted in the B or M Districts which permits one or more similar uses;
provided the Community Development Director finds that such new use is not more
objectionable than the enumerated uses in such district, is similar thereto and will be compatible
therewith. No use that is enumerated in any B or M District will be permitted in a more
restrictive district.
(Ord. No. 99-09, ~ l(Exh. A, ~ 504),7-13-99)
Sec. 31-75. Temporary uses.
(a) Permit required. No temporary use or structure which is not otherwise treated as a
permitted use or conditional use in a particular zoning district and which is not otherwise
prohibited shall be conducted or erected without a temporary use or structure permit. This
section shall not override, and shall not substitute for, any other section of the LDR which
requires another type of permit, certificate, or approval.
(b) Review and approval. An application for temporary use shall be submitted and reviewed in
conformance with the procedures of general applicability. Notice and public hearing
requirements shall not apply to temporary use or structure permits. The payment of an
application fee, established by the City Commission, shall be included with the application for a
temporary use permit. Applications for a temporary use or structure permit shall be reviewed and
approved by the City Manager or his designee, who may impose reasonable conditions upon the
temporary use or structure permit.
The establishment of the following uses shall require a temporary use, structure permit or special
events permit issued by the City.
(1) Construction office trailers for a development project with final site plan approval.
(2) Construction materials storage, processing and fabrication for a development project with
site plan approval.
(3) Construction equipment storage for a development project with site plan approval.
(4) Temporary sales offices and model homes established for the express purpose of marketing
a real estate development project with the site plan approval. The offices and model homes shall
, be located on and limited to the property which is being marketed for sales.
(5) Attended modular trailers for the purpose of collecting, storing or distributing goods on
private property. Unattended facilities are prohibited in any zoning district.
(6) Garage sales.
(7) Seasonal sales lots offering Christmas trees, pumpkins, flowers and the like; however, no
temporary permit shall be issued for sales within public rights-of-way, and fireworks sales shall
be subject to Fire Department approval.
(8) Sidewalk or parking lot sales by City licensed businesses.
(9) Non-City sponsored fireworks displays and shows.
(10) Carnivals, fairs, concerts, circuses or similar events.
(11) Modular trailers or portables for the purpose of temporary facility(ies) only for public or
private educational purposes for student classrooms and administrative space, for a development
project with final site plan approval. The temporary facility(ies) shall be located on and limited
to the property which is the subject of the final site plan approval. The maximum time limit for
use of the temporary facility(ies) shall be 18 months from the date of final site plan approval and
shall be subject to the provisions of subsection (d) of this section. A removal bond in the amount
of $5,000.00 for each structure, in a form approved by the City Attorney, shall be required from
the applicant prior to issuance of a permit for the temporary facility(ies).
(c) Maximum time limit, A maximum time limit shall be established for all temporary uses
based on the minimum amount oftime needed to conduct the permitted activity. Temporary uses
(c)(ii) 006
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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and structures related to real estate development projects shall not be maintained longer than the
time necessary to complete the construction of the project (issuance of the [mal certificate of
occupancy).
(d) Revocation of permits. Any temporary use which becomes a nuisance, violates the
conditions of the permit or is in violation of the LDR shall be revoked by the City Manager. Any
temporary use which endangers the public health or safety shall be revoked immediately by the
City Manager.
(e) Exemptions, No permit for temporary use or structure will be required when such use or
structure is part of a construction project by or for the City.
(f) General criteria and limitations for temporary use permits.
(I) The temporary use must be compatible with the surrounding land uses;
(2) A parking problem must not be created. If off-site parking is to be utilized, permission
must be in writing from the owner of the property utilized.
(3) An applicant may not receive a temporary use permit on the same property more than three
times within a calendar year, unless approved by the City Manager or his designee.
(4) The temporary use must not endanger the public health or safety of the citizens or
businesses of the City of Aventura.
(Ord. No. 99-09, ~ l(Exh. A, ~ 505),7-13-99; Ord. No. 2002-14, !l2, 6-4-02)
Sec. 31-76. Variances.
(a) Purpose and scope. The variance process is intended to provide limited relief from the
requirements of the LDR in those cases where strict application of those requirements will create
a practical difficulty or unnecessary hardship, as distinguished from a mere inconvenience,
prohibiting the use of land in a manner otherwise allowed under the LDR. Variances shall not be
granted to allow the establishment of a use or density which is not otherwise allowed in a zoning
district or which would change the zoning district classification of any or all of the affected
property .
(b) Application requirements. An application for a variance shall be filed by the owner of the
property upon which the variance is requested or their designated representative. The application
shall be on a form provided by the Community Development Director and shall include an
application fee as established by the City Commission,
( c) Staff review. The Community Development Department shall review the application to
evaluate whether the proposed variance complies with the general purpose and standards set
forth in this section for the granting of variances. The Community Development Director shall
compile a written staff report summarizing the facts of the case including all relevant documents.
The complete application and staff report prepared pursuant to this section shall be transmitted to
the City Manager as provided herein.
(d) Review by City Commission. The City Manager shall schedule the proposed variance
application for the next available Commission meeting providing the required notice procedures
are met.
(1) Public hearing, The City Commission shall hold one public hearing on the proposed
variance.
(2) Action by City Commission. In considering whether to approve or deny the application, the
City Commission shall review the application, the general purpose and standards set forth in this
section for the granting of variances, staff reports, and any oral and written comments received at
the public hearing.
(e) Standards of review. A variance shall be granted only where competent and substantial
evidence presented in the particular case shows that all of the of the following are met:
(I) The particular physical surroundings, shape, topographical condition, or other physical or
environmental condition of the specific property involved would result in a particular hardship
upon the owner, as distinguished from a mere inconvenience, if the regulations were carried out
(c)(ii) 007
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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literally.
(2) The conditions upon which the request for a variance is based are unique to the parcel and
would not be generally applicable to other property within the vicinity.
(3) The alleged difficulty or hardship is not economic and has not been deliberately created to
establish a use or structure which is not otherwise consistent with the LDR.
(4) The granting of the variance will not be detrimental to the public welfare or injurious to
other property or improvements in the vicinity.
(5) The proposed variance will not substantially increase the congestion in the public streets,
or increase the danger of fire, or endanger the public safety, or substantially diminish or impair
property values within the vicinity.
(f) Conditions. In granting a variance, City Commission may impose such conditions and
, restrictions upon the premises benefited by a variance as may be necessary to comply with the
standards set out in this Section and to prevent or minimize adverse effects on other property in
the neighborhood.
(g) Expiration of approval. The approval of a variance shall be void if the recipient does not
obtain a building permit or other development order for the proposed use within 12 months after
the granting of the variance. An applicant who has obtained approval of a variance may request
an extension of this time within the original approval period. The City Commission may, at a
regular or special meeting, grant up to a six-month extension request for good cause shown by
the applicant.
(h) Amendments and alterations to approved variances.
(I) Except as provided under section 3l-76(h)(2), any expansion to an approved variance and
any addition to or expansion of an existing variance approval shall require the same application,
review and approval as required under this section for the original approval of the variance.
(2) Minor changes in the site plan or design details of an approved variance which are
consistent with the standards and conditions applying to the variance and which do not result in
additional external impacts, such as a minor shift in the location of a building or structure, the
realignment of parking spaces and aisles, the relocation of a driveway and the like, and landscape
changes may be approved by the City Manager or his designee without obtaining additional
approvals. Such minor changes will be submitted at building permit application in the form of a
revised site plan along with a copy of the originally approved site plan, clearly indicating the
proposed minor changes. No increase in the approved variance, creation of variances or change
in use shall be considered a minor change for the purposes of this section.
(i) Administrative variances. An administrative variance for setbacks, open space and parking
requirements may be granted by the City Manager or his designee only when competent and
substantial evidence is presented and the particular case shows that all of the following have
been met:
(1) The particular variance created is a direct result of a dedication of private property to the
City as requested by the City.
(2) The alleged difficulty or hardship is not economic and has not been deliberately created to
establish a use or structure which is not otherwise consistent with the LDR.
(3) The granting ofthe variance will not be detrimental to the public welfare or injurious to
other property or improvements in the vicinity.
(4) The proposed variance will not substantially increase the congestion in the public streets,
or increase the danger of fire, or endanger the public safety, or substantially diminish or impair
property values within the vicinity.
(Ord. No. 99-09, ~ l(Exh. A, ~ 506), 7-13-99)
Sec. 31-77. Amendments to the Land Development Regulations and Official Zoning Map.
(a) Purpose, The purpose of this section is to provide a uniform procedure concerning the
review of and proposals for amendments to these regulations and zoning designations, to provide
(c)(ii) 008
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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for the continued integrity of these regulations; to adapt to changes in the community; and to
allow the public an adequate opportunity to be heard concerning issues arising under or
incidental to these regulations and amendments hereto. Whenever the public necessity,
convenience, general welfare or good zoning practice and planning techniques require, the City
Commission may, by ordinance duly adopted in accordance with the procedures set forth herein,
amend and/or supplement the LDRs, the zoning district boundaries or classifications of property
now or hereafter established or by amendment hereto. All amendments of the LDRs or Map shall
be consistent with the adopted Comprehensive Plan.
(b) Initiation. An amendment to the text of the LDRs may be initiated by the City Manager or
the City Commission. Any affected person may apply to the City to amend the text of the LDRs.
An amendment to the Zoning Map may be initiated by the City of A ventura or by any person
owning property within the area proposed for change on the Official Zoning Map subject to the
payment of an application fee to cover the cost of processing the application.
(c) Application requirements, Applications for amendment to the Zoning Map and text of the
LDR shall be on an application form specified by the Community Development Director. All
applications filed shall be processed according to the LDRs. The information in the application
shall address the standards of sections 3l-77(f) and 31-77(g) as well as the standards for a
specific zoning district.
(d) Review by stafJ. The Community Development Department shall review applications for
amendment to the text of the LDRs and amendments to the official zoning map and compile a
written report which summarizes the facts of the case including all relevant documents, and
evaluates the proposed amendment with the general purpose and standards set forth in this
section. The Community Development Director shall transmit a copy of the staff report to the
City Manager.
(e) Review by City Commission. The City Manager shall schedule the proposed amendment for
the next available City Commission meeting providing the required notice procedures are met.
The City Commission shall review all amendments to the Official Zoning Map and amendments
to the text of the Land Development Regulations.
(1) Public hearing. In order to adopt an Ordinance the City Commission shall comply with the
notice and procedures set forth in F.S. ch. 166 and the public hearing shall be conducted in
accordance with the provisions of this chapter.
(2) Action by City Commission. In considering an amendment to the text of the LDR or the
Official Zoning Map, the City Commission shall review the proposed amendment, the general
purpose and standards set forth in this section, the report and recommendation of the
administration, and any oral and written comments received at the public hearing. Based upon
the record developed at the public hearings, the City Commission may:
a. Adopt the proposed amendment with or without modifications; or
b. Grant another zoning classification consistent with the Future Land Use Map designation
and Comprehensive Plan;
c. Reject the proposed amendment; or
d. Refer the matter to the administration for further consideration.
(f) Standards for reviewing proposed amendments to the Official Zoning Map. In deciding
whether to recommend approval of a proposed amendment, the Administration and the City
Commission shall determine whether or not:
(1) The proposed amendment is consistent with goals, objectives and policies of the City's
Comprehensive Plan.
(2) The proposed zoning district is compatible with the surrounding area's zoning designation
(s) and existing uses.
(3) The subject property is physically suitable for the uses permitted in the proposed district.
(4) There are sites available in other areas currently zoned for such use.
(5) If applicable, the proposed change will contribute to redevelopment ofan area in
(c)(ii) 009
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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accordance with an approved redevelopment plan.
(6) The proposed change would adversely affect traffic patterns or congestion.
(7) The proposed change would adversely impact population density such that the demand for
water, sewers, streets, recreational areas and facilities, and other public facilities and services
would be adversely affected.
(8) Whether the proposed change would have an adverse environmental impact on the vicinity.
(9) Whether the proposed change would adversely affect the health, safety, and welfare of the
neighborhood or the City as a whole.
(g) Standards for reviewing proposed amendments to the text of the LDR. In deciding whether
to recommend approval of a proposed text amendment, the administration and the city
commission shall consider whether or not:
(I) The proposed amendment is legally required.
(2) The proposed amendment is consistent with the goals and objectives of the Comprehensive
Plan.
(3) The proposed amendment is consistent with the authority and purpose of the LDR.
(4) The proposed amendment furthers the orderly development of the City.
(5) The proposed amendment improves the administration or execution of the development
process.
(h) Zoning in progress, applicability, temporary hold on permits and licenses.
(1) Purpose. The zoning in progress doctrine ("zoning in progress" ) generally allows the
City to apply, on a retroactive basis, changes to zoning regulations or to the zoning district status
of property, to previously approved or currently in process development applications. ,
Additionally, the zoning in progress allows a temporary hold on permits and licenses if there is
a change in zoning, which is already in progress, that would affect the permit or license.
(2) Initial adoption of Land Development Regulations, Zoning in progress shall be applied to
the initial adoption of this chapter in the following manner:
a. Zoning in progress shall not be applied to the extent that vested rights are established
pursuant to the procedure set forth in section 31-3(b)(3).
b. Zoning in progress shall not be applied to complete and pending applications for
development permits which have been filed with the City before February 18, 1999.
c. Zoning in progress shall apply to applications for development approval which were filed
with City after the cut-off date established in b. above, and such application must comply with
the criteria ofthe chapter, except as provided in a. above.
d. Zoning in progress shall not apply to the grant of any moratorium waiver specifically
granted by the City Commission.
(3) Future amendments to LDR, When an amendment in the LDR or in the application of any
particular zoning district classification to land is being considered, the City may impose a
temporary hold on any development applications pending before the City with respect to the area
or the zoning regulatory text which is the subject of the amendment. The hold shall commence
upon the date that notice of zoning in progress is published in a newspaper of general
circulation in the City and shall continue in effect for a period from the date of notice until the
subject change, with or without amendments, shall have been approved or disapproved by the
City Commission or for a period of three months, whichever is sooner, unless such development
application would be in conformity with the more restrictive of the existing zoning district status
or the zoning district regulations as compared to the proposed zoning district status or zoning
district regulations, An affected person may appeal the City staff's application of this provision to
the City Commission for review by the City Commission by filing a notice of appeal with the
City Manager.
(Ord. No. 99-09, ~ I(Exh. A, ~ 507),7-13-99)
Sec. 31-78. Subdivision plat approval.
(c){ii) 010
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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(a) Purpose. The purpose of this section is to establish the procedures and requirements for
obtaining approval of a plat of subdivision as defined by F .S. ch. 177.
(b) Plat required. Whenever land is subdivided in the City a plat must be recorded in the
Official Records of Miami-Dade County. No plat of subdivision lying within the City of
A ventura shall be recorded in the Official Records of Miami-Dade County prior to approval by
the City Commission. No building permit shall be issued unless a final plat has been approved by
the City Commission, Furthermore, no certificate of occupancy shall be issued prior to the final
plat, including the parcel or parcels of land on which a building will be constructed, has been
recorded in the Official Records of Miami-Dade County.
A building permit may be issued for an essential governmental facility after preliminary plat
review where the City Commission fmds that immediate construction of the governmental
facility is essential to the health, safety, or welfare of the public and where the City determines
that public facilities and services will be available at the adopted level of service standards
concurrent with the impact of development of the governmental facility. A certificate of
occupancy shall not be issued until the plat is recorded.
(c) Conformity to Comprehensive Plan. No plat application shall be considered by the City
unless the original site and the lots to be created are in conformance with the City's adopted
Comprehensive Plan.
(d) Preliminary plat, advice and comment at developer's option. Upon request of the applicant
and payment of an application fee, a preliminary plat may be reviewed by the Community
Development Department. The comments and advice of staff, however, shall not be binding on
the City or County or be construed to create any right for the developer to rely on said
comments. Review of a preliminary plat shall be done in a reasonable time with specific notice
to the developer as to what constitutes a reasonable time under the existing facts and
circumstances at the time of submission.
(e) Tentative plat review. All tentative plats prepared for review by Miami-Dade County must
be approved by the City prior to submission to the County. A tentative plat shall show on a map
all of the facts and data required by the various City departments to determine whether the
proposed layout of the land in the subdivision is satisfactory from the standpoint of the public
health, safety and welfare,
(1) Tentative plat application requirements. The tentative plat and application shall be filed
with the Community Development Department on forms provided by the department. The
application shall be submitted in accordance with the required number of copies and with an
application fee as established by the City. The following information shall be part of the tentative
plat application unless waived by the Community Development Director:
a. Proposed subdivision name and identifying title, the name of the City, and the section,
township and range.
b. Location of property lines, existing easements, buildings, watercourses, elevations, permits
and other essential features.
c. The names of all subdivisions immediately adjacent.
d. The location of any existing sewers and water mains, or any underground or overhead
utilities, culverts and drains on the property to be subdivided.
e. Location, names and present widths of existing and proposed streets, highways, alleys,
parks and other open public spaces as well as similar facts regarding property immediately
adjacent.
f. The width and location of any street or other public ways or places shown on the City or .
County Trafficways Plan within or adjacent to the area to be subdivided, and the width and
locations of all streets or other public ways proposed by the developer.
g. Date offield survey, north point and geographic scale.
h. Legal description and plan of proposed layout made and certified by a Florida licensed land
surveyor.
(c)(ii) 011
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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i. The proposed lot lines with approximate dimensions and, in the case of odd or irregularly
shaped lots, suggested location of building setback lines.
j. Where the tentative plat submitted covers only a part of the subdivider's entire holding, a
master tentative plat of the prospective future street system of the unsubdivided part is required,
and the street system of the unsubmitted part will be considered in the light of adjustments and
connection with the street system of the plat submitted.
k. The numbering of all lots, blocks and the lettering of all tracts shall be shown on the
tentative plat. All lots or tracts shall be numbered or lettered progressively. All blocks shall be
progressively numbered except that blocks in numbered additions bearing the same name shall
be numbered consecutively throughout the several additions.
I. A location map at the scale of one inch equals 300 feet showing existing and proposed
rights-of-way.
(2) Additional required information. In addition to the plat and application form, the applicant
shall submit the following information:
a. A complete and current ownership and encumbrances report.
b. A lot parcel analysis, including the smallest lot size, largest lot size, number of lots, acreage
in each parcel, and number of parcels.
c. The applicable base flood elevation information.
d. A list of all easements and rights-of-way to be vacated.
e. Copies of all land development and environmental licenses and permits applied for
including water management, and dredge and fill permits.
(3) Additional information to be provided at option of director. In addition to the information
required with all tentative plat applications, the Community Development Director may request
the following information if it is determined necessary to ascertain the adequacy of public
facilities and consistency with the Comprehensive Plan or LDRs:
a. A sealed current topographic survey ("plat survey"). The plat survey shall cover the entire
area being platted and extend a minimum of 100 feet beyond the plat limits. The surveyor shall
certifY that the survey meets the requirements of this section. The plat survey shall contain at a
minimum the following information:
1. Property boundaries;
2. Existing watercourses, canals and bodies of water within or adjacent to the plat limits;
3. Existing easements within or adjacent to the plat limits and the purposes for which the
easements have been established; ,
4, Existing streets and alleys on or adjacent to the tract, including name and right-of-way
width;
5. All encumbrances and restrictions specifi~d within the owner and encumbrance report.
b. Written confirmation from all utilities franchised to operate in the City relative to the
adequacy of proposed easements shown on the plat and their ability to co-exist with other
utilities which may be placed within the easement.
c. Schematic subdivision improvement plans for the improvements necessary to bring water,
sewer and public access to the project, including all off-site improvements required by the
platting process, shall be submitted in conformance with this code.
d. Legal documents in draft form ensuring perpetual maintenance of any private roads, parking
areas, landscaped areas, drainage systems, wetland mitigation areas and other common areas.
e. An original title certificate or an attorney's opinion of title, and a tax letter or receipt from
Miami-Dade County.
f. Miami-Dade County DERM environmental review and res1.\1ting comments.
(4) Checking and investigating tentative plats. The applicant shall pay such fees, as may be
prescribed, for checking the tentative plat and investigating such matters concerning it as may be
required by law and this chapter.
(f) Final plat review, All final plats prepared for review by Miami-Dade County must be
(c)(ii) 012
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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approved by the City prior to submission to the County. No application for fmal plat will be
accepted by the City without approval of a corresponding tentative plat by Miami-Dade County.
The final plat shall have incorporated all changes or modifications as required to make the
tentative plat conform to City and Miami-Dade County requirements. Otherwise, it shall
conform to the tentative plat, and it may constitute only that portion of the approved tentative
plat which the applicant proposes to record within one year, provided that such portion conforms
with all requirements of these LDRs and meets the approval of the City and Miami-Dade
County.
(1) Format affinal plats. The final plat shall be prepared by a land surveyor registered in the
state. The final plat shall be clearly and legibly drawn to a sheet size of 30 inches by 36 inches
and to a scale of sufficient size to be legible, with letters and numbers to be no smaller than one-
eighth of an inch in height. The final plat, insofar as preparation is concerned, shall comply with
all applicable regulations and State laws dealing with the preparation of plats.
(2) Final plat application requirements, The final plat and application shall be filed with the
Community Development Department on forms provided by the department. The application
shall be submitted along with the required number of copies and an application fee as established
by the City. The recording costs for legal documents and fees for notification shall be paid prior
to and as a condition for the plat to be submitted for public hearing before the City Commission.
The following information shall be part of the final plat unless waived by the Director:
a. Name of the subdivision. The plat shall have a title or name. The title of the plat shall
include the name of the City and the section, township and range of which such platted land is a
subdivision. The Community Development Department shall disapprove any name or title which
is similar to the name of any previously approved plat in the City and which may cause
confusion.
b. Deed description. There shall be printed upon the plat a full and detailed description of the
land embraced in the map or plat showing the township and range in which such lands are '
situated and the section and part of sections platted and a location sketch showing the plat's
location in reference to the closest centers of each section embraced within the plat. The
description must be so complete that from it, without reference to the plat, the starting point can
be determined and the outlines run. If a subdivision of a part of a previously recorded plat is
made, the previous lots and blocks to be resubdivided shall be given. If the plat is a resubdivision
of the whole of a previously recorded plat, the fact shall be so stated. Vacation of previously
platted lands must be accomplished in the manner provided by law.'
c. Names of adjacent subdivisions.
d. Names or numbers and width of streets immediately adjoining plat.
e. All plat boundaries.
f. Bearings and distances to the nearest established street lines, section comers or other
recognized permanent monuments which shall be accurately described on the plat.
g. Municipal, township, county or section lines accurately tied to the lines of the subdivision
by distance and bearing,
h. Accurate location of all monuments.
1. Length of all arcs, radii, internal angles, points of curvature and tangent bearings.
j. Where lots are located on a curve or when side lot lines are at angles less than 87 degrees or
more than 93 degrees, the width of the lot at the front building setback line shall be shown.
k. The name or numbering and right-of-way width of each street or other right-of-way shown
on plat.
1. The numbering of all lots and blocks shown on the plat. All lots shall be numbered either by
progressive numbers, or in blocks progressively numbered except that blocks in numbered
additions bearing the same name shall be numbered consecutively throughout the several
additions. Excepted parcels must be marked "not part of this plat."
m. Plat restrictions to restrict type and use of water supply; type and use of sanitary facilities;
(c)(ii) 013
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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use and benefits of water areas and other open spaces and odd-shaped and substandard parcels;
resubdiyjsion of parcels as "platted," and restrictions of similar nature.
n. All areas reserved or dedicated for public purposes. No strip or parcel of land shall be
reserved by the owner, unless the same is sufficient in size and area to be of some practical use
or service.
o. The dimensions of all lots and angles or bearings.
p. Minimum building setback lines where required by ordinance.
q. Location, dimension and purpose of any easements.
r. Certification by a registered surveyor to the effect that the plat represents a survey made by
him, and that all monuments shown thereon actually exist, and that their location is correctly
shown.
s, An acknowledgment by the owner of his adoption of the plat, and of the dedication of
streets and other public areas and the consent of any mortgage holders to such adoption and
dedication. If existing right-of-way is to be closed, purpose of closing must be stated on the plat.
t. The signature and seal of the City. Provided, however, that where property is being replatted
the signature of the City shall be affixed or denied pursuant to the procedures established in F.S.
S 177.10 I, unless the vacation of prior plats has previously been validly accomplished.
(3) Other data required. The following information is required to be submitted at the time of
final plat application, but shall not be a part of the final plat:
a. The surveyor shall show on the face of the plat (or shall certify on a separate sheet, not to be
recorded in the public records) the Florida State Plane Coordinates (current readjustment) of at
least two of the permanent reference monuments shown on the plat. This requirement may be
waived by the Director if any portion of the land encompassed by the plat is more than one mile
from the nearest station shown on the list on file in the Dade County Public Works Department's
Survey Office, as updated; or all stations within one mile of the plat have been lost. A copy of
the certified comer record (as defined in F.S. S 177.503, for the comers used shall be provided
with the fmal plat.
b. Current opinion oftitle from any attorney authorized to practice law in this State.
c. Certification from the City Department of Finance and Miami-Dade County that all taxes
and assessments have been paid on the land within the proposed subdivision or receipted tax
bills.
d. If a zoning change is involved, certification that the change requested has been approved
and is in effect, and that the size of lots and other features shown on the plat conform to all
zoning requirements.
e. Certification from the City Engineer that all required improvements within the public right-
of-way have been completed or that the municipality is holding sufficient bond for the
completion of the improvements.
f. Any restrictive covenants desired by the developer so long as they do not violate existing
ordinances.
(4) Review by City Commission. All final plats must be submitted to the City Commission for
approval. No final plat, however, shall be scheduled for said approval until the plat and all
supporting documentation required under this section have been received by the staff and
reviewed under the authority contained in this chapter. The Community Development Director
shall submit the report to the City Manager, for transmittal to the City Commission. The City
Commission shall approve the final plat, as recommended by staff, if the plat is found to be in
conformance with these regulations, and issue a resolution setting forth such approval.
(g) Endorsement offinal plat, Upon approval of the final plat by the City Commission, the
final plat shall be endorsed by the City Manager and attested to by the City Clerk. The
Community Development Director shall forward the signed original of the final plat to the
applicant for County approval.
(I) Effect of dedication. A plat containing dedications of any interest in property, when
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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properly recorded, shall constitute a sufficient, irrevocable conveyance to vest all legal and
equitable interests in the parcels of land so dedicated, to be held by the City in trust and the
approval of the plat by the City Commission shall have the force and effect of an acceptance of
said legal and equitable interest. However, nothing herein shall be construed to create any
obligation on the part of the city to perform any act of construction or maintenance within a
dedicated area unless or until that obligation is voluntarily planned, budgeted and implemented
by !he City.
(h) Requirements for final city signature. Prior to fmal City signature upon a plat for
recordation the developer shall have executed approved agreements if required by the City
concerning the payment of the developer's share of required public facilities and any other
requirements of the final plat approval. The subdivider shall also provide one or more copies of
the final plat, to the City in a format deemed acceptable by the City Engineer.
(i) Time limitations offinal plat approval. The burden is on the property owner to either record
the plat within 12 months of City Commission approval or request from the City Conunission,
prior to expiration, one extension of no more than six months. The burden is also on the property
owner to record the plat within the time specified by Miami-Dade County. Failure to record
within the time specified by either the City of A ventura or Miami-Dade County shall render the
approval of said plat null and void.
G) Enforcement provisions.
(I) Recording of plat, No plat shall be recorded in the Public Records of Miami-Dade County
or have any validity whatsoever until it shall have been approved in a manner prescribed herein
and the final plat shall incorporate all changes or modifications required by the City
Conunission. In the event any such unapproved subdivision is recorded it shall be considered
invalid and the City may institute proceedings to have it stricken from the Public Records of
Miami-Dade County, Florida at the property owner's cost.
(2) Permits. The City's Chief Building Official shall not issue any building permit for any
occupiable structure to be constructed within the City unless and until said official receives a
certification from the Community Development Director that the provisions of this section have
been met. Prior to and as a condition of securing said certification, the petitioner for plat
approval, or the successors in interest, shall file a reproducible mylar of the duly recorded plat
with the City.
(3) Public improvements. The City hereby determines it to be public policy that the City shall
withhold all public improvements and services of any nature, including the maintenance of
streets and the furnishing of sewerage facilities and water services from all subdivisions which
have not been approved and from all areas dedicated to the public which have not been accepted
by the City Conunission in the manner prescribed by the LDRs.
(4) Revision of plat after approval, After approval by the City Conunission but prior to
recording any plat in the Public Records of Miami-Dade County, the petitioner shall provide to
the Conununity Development Director a copy of the subject plat reflecting all corrections and/or
modifications which may have been made subsequent to the plat approval by the City
Conunission.
The Conununity Development Director shall then review the plat to determine if any revisions or
modifications have been made that are contrary to or inconsistent with the approval of the City
Conunission.
After review, the Community Development Director will provide the petitioner with a letter
which will either authorize recordation of the revised plat or require that the revised plat be
returned to the City Commission.
(5) Failure to satisfy conditions of approval. The failure to satisfy conditions of approval,
whether conditions precedent or subsequent to recordation, shall be reported to the City
Manager, If upon written notice by the City Manager the applicant fails to correct the failures the
City Commission shall be notified. The City Commission upon notice to the property owner
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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shall hold a public hearing. If the City Commission finds that the conditions have not been
satisfied, the City Commission shall take immediate corrective action to ensure compliance.
(k) Modifications to recorded plats, The modifications listed in this section may be
accomplished upon a finding by the City Manager that the regulations of this section have
otherwise been met and through the payment of any fees for the cost of processing. The
following types of development shall be deemed exempt and not subject to the provisions of the
mandatory platting requirements of this code:
(I) The dedication ofland or any interest in land to any governmental agency, entity or
political subdivision.
(2) The division of a duplex zoned platted lot to permit individual ownership in conformance
with all applicable zoning and Building Code provisions.
(3) The combination oflots and/or portions oflots to create a common building site provided
that the property owner presents a unity of title or declaration in lieu thereof recordable in the
public records of Miami-Dade County, Florida either:
a. Identifying the boundaries of the building site and the intent to develop and convey as one
site or parcel in perpetuity or so long as the proposed use exists or;
b. Where the property owner presents a declaration in lieu of a unity of title recordable in the
public records of Miami-Dade County, Florida that:
1. Identifies the boundaries of the building site;
2. Provides that the subject site will be developed in accordance with the approved site plan
and that no modification shall be effectuated without the written consent of the then owner(s) of
the phase or portion of the property for which modification is sought, and the City Manager. The
City Manager's approval determination shall be made pursuant to section 31-790) of the City's
Land Development Regulations. Should the City Manager withhold such approval, the then
owner( s) of the phase or portion of the property for which modification is sought shall be
permitted to seek such modification by application to modify the plan or covenant at public
hearing before the City Commission;
3. If the subject property will be developed in phases, that each phase will be developed in
accordance with the approved plan, except as otherwise modified pursuant to section 3l-78(k)(3)
b.2 hereof.
4. In the event of multiple ownerships subsequent to site plan approval, that each of the
subsequent owners shall be bound by the terms, provisions and conditions of the declaration in
lieu of unity of title. The owner shall further agree that he or she will not convey portions of the
subject property to such other parties unless and until the owner and such other party (parties)
shall have executed and mutually delivered, in recordable form, an instrument to be known as an
"easement and operating agreement" which shall contain, among other things:
a. Easements in the common area of each parcel for ingress to and egress from the other
parcels;
b. Easements in the common area of each parcel for the passage and parking of vehicles;
c. Easements in the common area of each parcel for the passage and accommodation of
pedestrians;
d. Easements for access roads across the common area of each parcel to public and private
roadways;
e. Easements for the installation, use, operation, maintenance, repair, replacement, relocation
and removal of utility facilities in appropriate areas in each such parcel;
f. Easements on each such parcel for construction of buildings and improvements in favor of
each such other parcel;
g. Easements upon each such parcel in favor of each adjoining parcel for the installation, use,
maintenance, repair, replacement and removal of common construction improvements such as
footings, supports and foundations;
h. Easements on each parcel for attachment of buildings;
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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i. Easements on each parcel for building overhangs and other overhangs and projections
encroaching upon such parcel from adjoining parcel such as, by way of example, marquees,
canopies, lights, lighting devices, awnings, wing walls and the like;
j. Appropriate reservation of rights to grant easements to utility companies;
k. Appropriate reservation of rights to road rights-of-way and curb cuts;
I. Easements in favor of each such parcel for pedestrian and vehicular traffic over dedicated
private ring roads and access roads; and
m. Appropriate agreements between the owners of the several parcels as to the obligation to
maintain and repair all private roadways, parking facilities, common areas and common facilities
and the like.
These provisions or portions thereof may be waived by the City Manager if they are not
applicable to the subject property. The provisions of the easement and operating agreement shall
not be amended without prior written approval of the Office of the City Attorney. In addition,
such easement and operating agreement shall contain such other provisions with respect to the
operation, maintenance and development of the property as to which the parties thereto may
agree or the City Manager may require, all to the end that although the property may have
several owners, it will be constructed, conveyed, maintained and operated in accordance with the
approved site plan and in a coordinated and unified manner.
C. The declaration shall be in effect for a period of 30 years from the date the documents are
recorded in the public records of Miami-Dade County, Florida, after which time they shall be
extended automatically for successive periods of ten years unless released in writing by the
owners and the City Manager, acting for and on behalf of the City of Aventura, Florida, upon the
demonstration and affirmative finding that the same is no longer necessary to preserve and
protect the property for the purposes herein intended.
d. Enforcement of the declaration shall be by action at law or in equity with costs and
reasonable attorney's fees to the prevailing party.
e. No combination shall be approved where approval would allow a violation of any other
provision of this chapter.
(4) The division of a nonresidential zoned platted parcel into not more than two parcels, when
the City determines that a new public right-of-way or parcel access is not required. In this
instance, the Community Development Department and Engineering Division may require that
any or all of the following items be provided and approved:
a. Current survey.
b. Sketch plat.
C. Master parking plan.
d. Secondary access plan.
e. Alley; access, drainage, utility, planting, or other easements.
f. Paving and drainage plan.
g. Sewer and water plans.
(I) Recorded plat, No change to a recorded plat shall be created and no development is
undertaken except in conformance with the recorded plat or as specifically allowed in this
section.
(Ord. No. 99-09, S I (Exh. A, S 508),7-13-99; Ord. No. 2002-21, S 1,9-3-02)
Sec. 31-79. Administrative site plan review.
(a) Required. Except as provided in section 3l-80(c), application for site plan approval for all
developments shall be submitted to the Community Development Department for review and
approval prior to the issuance of building permits. The Community Development Department
shall evaluate the site plan as it relates to conformance to the LDR and Comprehensive Plan, and
shall consider internal site vehicular circulation, ingress and egress, conformance with the
character of the surrounding area, general layout of the site, architectural design of the structures,
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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and whether the development gs presented will enhance the quality of life in the City of A ventura
and promote the health, safety and welfare of its citizens.
(b) Application required. Application for administrative site plan review and approval shall be
submitted to the City in writing by the property owner or authorized representative on fonns
provided by the Community Development Department. A fee as established by the City
Commission shall be paid by the applicant.
(c) Exempt development. The following activities shall not require submission of a site plan
pursuant to this section.
(1) The deposit and contouring of fill on land.
(2) Construction of a single-family home on an existing single-family lot.
(3) Construction of a single residential duplex on an existing residential duplex lot.
(4) Accessory uses which would not increase plot coverage of the principal structure.
(5) Land clearing activity done in compliance with a valid land clearing permit issued pursuant
to the LDR and a City engineering permit.
(6) Demolition.
(d) General site plan application requirements, All site plans must be prepared, signed and
sealed by one or more of the following professionals.
(1) A landscape architect registered by the State of Florida.
(2) An architect registered by the State of Florida.
(3) A civil engineer registered by the State of Florida.
(4) A land surveyor registered by the State of Florida.
(e) Preliminary site plan submission requirements. An application for preliminary site plan
review shall include 12 sets of folded and collated plans containing the following:
(I) On-site sealed current (within 30 days) survey prepared by a Florida registered land
surveyor, certified as to meeting the requirements of Chapter 21HH-6, Florida Administrative
Code. At a minimum the survey shall show the property's topography, water bodies, easements,
rights-of-way, existing structures and paved areas. This survey shall be based upon ownership
and encumbrance report and shall so be stated on the survey itself.
(2) A tree survey is required if there are indications of existing native tree species on the site
when development is proposed within City areas of particular concern as identified in the City's
Comprehensive Plan. The tree survey shall comply with the following minimum standards:
a. Tree surveys shall be prepared by and bear the seal of a registered land surveyor licensed to
practice in the State of Florida. Tree species shall be identified by a registered landscape
architect licensed to practice in the State of Florida.
b. Surveys shall delineate property boundaries, easements, rights-of-way, bodies of surface
water, and protected trees or groupings of trees. The species of trees to be removed or relocated
shall be identified. In the case of a groupings of trees, the predominant species mix and estimated
number shall be identified. Trees or areas of vegetation which are required to be preserved shall
be delineated. Areas infested with prohibited or controlled plant species shall also be delineated
and identified. Surveys shall also indicate such other information as may be required by the
Community Development Department that is reasonable and necessary for the adequate
administration of this section.
(3) Site development plans (Scale to be I "=20' unless prior approval is received otherwise)
shall include in proper form, detail, dimension and scale, the following:
a. The location, size, and height of all buildings, walls, fences, walkways, driveways, parking
areas and loading areas.
b. The building and floor plan, including roof plan.
c. Location, character and enclosure of all outside facilities for waste storage and disposal.
d. Exterior elevations with material and color designation.
e. Preliminary landscaping plan (signed and sealed by a Florida registered landscape
architect) .
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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f. Location, size, character, height and orientation of all signs.
g. Placement, height, and fixture design of all exterior lighting fixtures and certification by a
registered professional engineer or registered architect that exterior lighting, as designed will not
exceed the footcandle levels at the adjacent private property lines.
h. Off-site sketch including, but not limited to, locations of structures, utilities, rights-of-way
and curb cuts within 300 feet of the subject property.
i. Information as to all perimeter buffer requirements for adjacent properties.
J. A master site plan is required for all phased development.
k. Site data information including but not limited to zoning districts, required and proposed
FAR, lot coverage, open space, parking, building height, density, setbacks and lot size
information.
(t) Final site planjiling. A final site plan shall only be filed following a determination by the
Director of Community Development that the preliminary site plan is in substantial conformance
with the LDRs. A final site plan shall be approved prior to issuance of any building permit. Final
site plan review shall include 12 sets of revised plans folded and collated containing the same
items as required for Preliminary Site Plan review plus the following:
(1) Details of all types of parking spaces provided.
(2) All signage locations, types and details.
(3) Complete landscapeplan (signed and sealed by a Florida registered landscape architect).
Plans shall include required and provided quantities of plant materials.
(4) Engineering plans (scale to be I "=20' unless prior approval is received otherwise)
including water, sewer, paving and drainage and utility locations.
(5) Locations and details of all entry features (if applicable).
(g) Review. In reviewing plans, City staff shall require that the development satisfies the
following criteria and submit a report to the City Manager:
(1) All applicable codes of the City. The goals, objectives, policies and other applicable
requirements of the City's Comprehensive Plan.
(2) Approved and accepted architectural and engineering design concepts.
(3) Consistency with the aesthetic character of the City.
(4) Dedication or conveyance of property for public rights-of-way as necessary to comply with
the Trafficways Plan and other applicable City plans.
(h) Approval. The City Manager or his designee shall approve or disapprove of administrative
site plan applications within sixty (60) days after staff review.
(i) Approvedplans. An approved site plan shall remain valid for a period of 12 months from
the date of approval. If no building permit is issued within the 12-month time period, the site
plan shall be considered null and void. Additionally, if at anytime building permits lapse the site
plan shall be considered null and void. A six-month extension may be granted by the City
Manager or his designee if the applicant shows good cause in obtaining building permits.
G) Site plan revisions. Where a proposed revision of an approved site plan affects the overall
design and layout or where the proposal will require review under this section, the fee for
processing the revision shall be the same as the initial submittal. All other revisions shall require
a minor modification processing fee as established by the City Commission. The City Manager
shall have the discretion based on the above guidelines to determine whether a proposed revision
is major or minor. A major site plan revision requires complete final site plan review and
approval.
(k) Engineering plans. No building permit shall be issued for any approved site plan unless
and until all final engineering plans for water, sewer, roadway and drainage systems are
approved by the City's engineer and a permit for same has been issued. Prior to the issuance of a
building permit the applicant shall provide a copy of the approved site plan, on disc, in a format
compatible with the City's engineering applications.
(I) Mylar copy of approved site plans required. Following City sign off, but prior to the
(c)(ii) 019
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
Page 20 of22
issuance of a building permit, a Mylar copy of the approved site plan shall be submitted to the
Community Development Department. The Mylar shall be in the same scale and identical to the
approved site plan.
(m) Conformanc~ with approved site plans. Prior to the issuance of a Certificate of
Occupancy, two as-built surveys shall be submitted to the Community Development Department.
The as-built surveys shall be in the same scale as the approved site plan Mylar. In case of any
conflicts the approved site plan shall prevail.
(Ord. No. 99-09, 9 l(Exh. A, 9 509),7-13-99)
Sec. 31-80. Engineering permits.
(a) Purpose. The review of engineering plans and subdivision plans by the City's Community
Services Department and the issuance of the appropriate permits is required to ensure that all
work is performed in conformance with accepted engineering standards and practices, and City
specifications; and that all work is completed in a timely manner.
(b) Engineering construction permit. No land development activity including: clearing and
grubbing; filling or excavation work; road construction; underground utility installation and/or
rehabilitation; and/or other activity shall commence without first obtaining engineering plan
approval, an engineering construction permit, and paying the appropriate fee and bond as
required.
(c) Engineering excavation permit. No excavation shall commence without first obtaining
engineering plan approval of the excavation activity, an engineering excavation permit, and
paying the appropriate fee and bond as required.
(d) Annual permit for mining. quarrying or excavation. An annually renewable engineering
permit issued in accordance with the regulations of this chapter shall not be transferable and shall
be obtained prior to commencing any resource extraction activity pursuant to this chapter. Said
permit shall be renewed on the first day of each calendar year, subject to compliance with all
City requirements and regulations and the payment of any required fees and bond as required.
(e) Engineering right-ol-way crossing permits. No right-of-way crossings that involve the
cutting or removal of pavements shall commence without first obtaining plan approval, an
engineering right-of-way crossing permit, and paying the appropriate fee and bond as required.
(f) Revocation of engineering permits. The City shall revoke an engineering permit pursuant to
any of the following situations:
(1) City final plat approval has expired.
(2) The security posted with the City to guarantee the construction of the subdivision
improvements is in default or has expired.
(3) Failure to commence engineering construction within one year of the date of the
engineering permit issuance and/or lapse of the engineering work on the site for a period of
greater than three consecutive months when there is no active City building construction permit
in effect on the site.
(4) The absence of a designated developer's engineer of record for a period of seven
consecutive calendar days. Said engineer shall be as defined in F.S. ch. 471, representing the
developer, in responsible charge of the permitted engineering work at all times. (Any successive
developerlbuilder's engineer for the job shall be able to document and produce, upon request,
evidence that he or she has, in fact, repeated all the work done by the original engineer , per the
requirements of Chapter 61015 - 27.001 of the Florida Administrative Code.)
(5) Failure to maintain a safe building site as determined by the Chief Building Official in
accordance with City Code,
The Community Services Director or his designee shall notify the developer in writing that it
intends to revoke an engineering permit. The developer may appeal the decision to the City
Manager.
(Ord. No. 99-09, 9 l(Exh. A, 9 510),7-13-99)
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
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Sec. 31-81. Review of building permits.
(a) Purpose and applicability. The building permit and certificate of occupancy represent the
last point in the development review process. All other approvals, permits and certificates
required by the LDR must be applied for and obtained before an application for a building permit
may be considered for approval by the City. The South Florida Building Code as amended, is
hereby adopted as the regulation governing the construction of buildings and structures in the
City. Any qualified applicant desiring a permit to be issued by the Building Official as required,
shall file an application in writing on a form provided by the Community Development
Department for that purpose. No development shall occur until and unless the Building Division
has issued a building permit.
(b) Application requirements, Each application shall describe the land on which the proposed
work is to be done, by legal description and address; shall show the use or occupancy of the
building or structure; shall be accompanied by plans and specifications as required; shall state the
value of the proposed work; shall give such other information as reasonably may be required by
the Building Official and the South Florida Building Code to describe the proposed work; and
shall be attested by the qualified applicant and property owner.
(c) Action by Community Development Department, The Building Official shall review all
applications for building permits or certificates of occupancy for compliance with t1ie provisions
of the LDR, the City Code and the South Florida Building Code, as amended. The Building
Division shall issue a building permit if the applicant demonstrates that the proposed
development is in compliance with all applicable codes.
(d) Permit card. Upon approval of plans, specifications and application for permit and the
payment of the required fee, the Building Official shall issue a permit. With each permit, the
Building Official shall issue a permit card which shall bear the description of the property, the
nature of the work being done, the name of the owner and contractor and other pertinent
information; and such card shall be maintained in a conspicuous place on the front of the
premises affected thereby during the hours of work in progress and available on demand for
examination by the Building Official.
(Ord. No. 99-09, S l(Exh. A, S 511), 7-13-99)
Sec. 31-82. Certificates of occupancy.
(a) Purpose and effect. No new building or structure shall be used or occupied unless and until
a certificate of occupancy or completion has been issued by the Building Division. No addition
or structural alteration to any existing building or structure, other than a single-family detached
dwelling, shall be used or occupied until and unless a certificate of occupancy or certificate of
completion has been issued by the Building Division. No new non-residential use, and no change
in the occupancy of an existing non-residential use, shall be established until and unless a
certificate of occupancy or completion has been issued by the Building Division.
(b) Standards and review. A certificate of occupancy shall be issued only after the premises
have been inspected and found to comply with all applicable standards and requirements for the
zoning district in which it is located, and that the use or structure conforms to the plans and
specifications for which the building permit was issued.
(c) Action by Building Division. The certificate of Occupancy or completion shall be issued, or
notice shall be given to the applicant specifYing the reasons a certificate of occupancy or
completion carmot be issued, no later than 14 days from the date the application is made by the
qualified permit holder requesting issuance of certificate of occupancy or completion. No
certificate of occupancy or completion shall be issued until all inspections have been approved
by all required City and County departments. The certificate of occupancy or completion may be
issued in the following forms:
(1) Partial certificate of occupancy. A certificate of occupancy for less than the entire built-
(c)(ii) 021
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ARTICLE V. DEVELOPMENT REVIEW PROCEDURES
Page 22 of22
out space in any given project may be issued, provided that basic life safety concerns have been
provided for.
(2) Conditional/temporary certificate of occupancy, In situations where life-safety concerns
have been provided for, a certificate of occupancy conditioned upon the completion of specific
enumerated items may be issued.
(d) Contents of certificate, Every certificate of occupancy or completion shall be dated, shall
state the use or occupancy of the land or structure involved, shall state that the use or occupancy
complies with the terms of this chapter, shall state any conditions that may be applicable and
shall be approved by and signed by the Building Official.
( e) Posted notice of issuance. Every certificate of occupancy required by virtue of a change in
use or occupancy in a non-residential zoning district shall be permanently posted in a prominent
place on the premises at all times.
(Ord. No. 99-09, S l(Exh. A, S 512), 7-13-99)
Sec. 31-83. Appeals.
(a) Purpose and applicability. This section is intended to provide for appeals from the
decisions of decision-making and administrative bodies having development approval authority
under the LDR or from any written order, requirement, decision, determination, or interpretation
made by an administrative official in the enforcement of these regulations. The right to appeal
pursuant to this section is limited to the applicant for a development permit who believes he has
been aggrieved by a decision, The authority to decide appeals shall be as specified herein.
(b) Filing of application and notice of appeal, An application and notice of appeal authorized
under the provisions of this section shall be filed with the City Manager. Applications shall be
filed within 15 days of the signing of the written order, requirement, decision, determination, or
interpretation of the LDRs. If an application is filed, the City Manager shall then make a
determination of completeness.
( c) Review. Upon receipt of a complete application the City Manager shall review the
application and schedule a public hearing to be conducted by the City Commission. The City
Manager shall forward a copy of the application to the City Commission together with a report
and recommendation summarizing the facts of the case, any relevant documents and any
comments received on the application.
(d) Action by the City Commission. A public hearing shall be held by the City Commission to
consider the application. The applicant shall be advised in writing of the hearing date and time.,
The City Commission shall review the application, the report and recommendation of the
administration and consider the evidence and testimony provided at the hearing. After the public
hearing is held, the City Commission shall issue a written decision and order granting the relief
sought in the application, with or without conditions, or denying the appeal.
(e) Appeal of an order of the City Commission. Appeals from any decision of the City
Commission made pursuant to the LDRs shall be in accordance with Rule 9.190, Florida Rules
of Appellate Procedure.
(Ord. No. 99-09, S l(Exh. A, S 513), 7-13-99)
Secs. 31-84--31-110. Reserved.
(c)(ii) 022
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS Page 1 of 15
ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS
Sec. 31-171. Off-street parking and loading standards.
(a) General. Every building, use or structure, instituted or erected after the effective date of
this chapter shall be provided with off-street parking facilities in accordance with the provisions
of this section for the use of occupants, employees, visitors or patrons. Such off-street parking
facilities shall be maintained and continued as an accessory use as long as the main use is
continued.
(I) Existing buildings. Where a building existed at the effective date of this article such
building may be moderrnzed, altered or repaired, provided there is no increase in floor area or
capacity and there is no change of occupancy, without providing the total number of required
parking spaces.
Where a building or use, which existed at the effective date of this article is enlarged in floor
area, volume, capacity or space occupied, off-street parking facilities as specified herein shall be
provided for the additional floor area, volume, capacity or space so created or so occupied.
Where a building or use which existed at the effective date of this chapter is changed in use or
occupancy, additional off-street parking facilities shall be provided to the extent that the off-
street parking required by this section for the new use or occupancy exceeds the off-street
parking which would have been required for the previous use or occupancy had the regulations
of this section been applicable thereto. For the purposes of this section a change of use or
occupancy shall mean a change from one category of off-street parking requirements to another
such category.
It shall be unlawful for an owner or operator of any building, structure or use affected by this
section to discontinue, change or dispense with, or to cause the discontinuance or reduction of
the required parking facilities apart from the discontinuance, sale or transfer of such structure or
use, without establishing alternative vehicle parking facilities which meet the requirements of
this section. It shall be unlawful for any person to utilize such building, structure or use without
providing the off-street parking facilities to meet the requirements of and be in compliance with
this article.
(2) Proximity of off-street parking. Required off-street parking spaces shall be located on the
same parcel they are intended to serve. As an alternative, they may be located on a separate
parcel not more than 300 feet from the use they are intended to serve provided the owner of said
parking areas shall enter into a written agreement with the City of whereby the land providing
the parking area shall be joined with the primary site and shall not be sold or disposed of except
in conjunction with the sale of the building the parking area serves so long as these parking
facilities are required. Said agreement shall be recorded at the expense of the owner and shall run
with the land and shall bind the heirs, successors, and assigns of said owner. In approving off-
site parking, the City Manager must find that the off-site parking facility is reasonably located in
relation to the use it is intended to serve, based upon such factors as the type offacility, likely
purpose of the trip to the facility, distance from the use intended to be served, and any physical
barriers which must be crossed to reach the use to be served. Parking spaces backing into a main
drive aisle adj acent to the front of buildings shall be discouraged.
(3) Parking plan required, A parking plan shall be provided with all applications for
development approval which shall clearly and accurately designate the required parking spaces,
required landscaped areas and planter islands, access aisles and driveways and the relationship of
the parking to the uses or structures the spaces are intended to serve.
(4) Required handicapped spaces. Parking spaces for disabled persons shall be provided in
accordance with F.S. ch. 553, pI. V, as amended from time to time.
(5) Parking spaces for persons transporting young children and strollers. Parking spaces
specifically designed for persons transporting young children under the age of three and strollers,
(c)(iii) 001
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS Page 2 of 15
shall be encouraged for all uses other than single-family, duplex or townhouse.
a. The following number of spaces are recommended:
TABLE INSET:
Regular Spaces Stroller Spaces
Up to 100
101to 500 ~
~ to 1,000 13
jover 1,000 lOne additional space for each 500 parking spaces over 1,000
b. Location of parking spaces. Such spaces should be located as closely as possible to parking
spaces designated for the physically handicapped and/or disabled persons; provided however,
parking spaces designated for the physically handicapped and/or disabled persons must take
precedence. Where no parking spaces designated for the physically handicapped and/or disabled
persons have been provided, parking spaces for persons transporting young children and strollers
should be located on the shortest accessible route of travel from adjacent parking to an accessible
entrance.
c. Signage and markings. All parking spaces for persons transporting young children and
strollers should be prominently outlined with green paint and posted with an approved
permanent above-ground sign which shall conform to the figure entitled "Baby Stroller Parking
Sign". The bottom of the sign must be at least five feet above grade when attached to a building,
or seven feet above grade for a detached sign.
(6) Size and character or required parking. The following design requirements shall be
observed for off-street parking:
a. Size; parking stalls. Each parking space required and provided pursuant to the provisions of
this article shall be not less than nine feet in width and 18 feet in length. See figure 31-172(2).
b. Size; enclosed garage areas. All one car garages shall provide a single parking space of
nine feet by 18 feet free from all obstructions. All two-car garages shall provide two parking
spaces consisting of an 18-foot by l8-foot unobstructed space.
c. Striping. All parking spaces shall be divided with painted double lines except for single-
family homes, zero lot line developments, townhouses and duplexes where the parking spaces
are on a single-family site or as otherwise permitted in this chapter. See figure 31-171(2).
d. Accessibility. In all zoning districts, the width of access aisles and driveways shall be
substantially in conformance with the standards set forth in figure 31-171(1). Every space shall
be accessible without driving over or through another parking space. Parking stalls abutting the
same continuous drive aisle shall have the same angle and orientation. Drive aisles shall be one-
way only which are less than 24 feet wide or which abut parking stalls with angles less than 90
degrees. Parking stall angles and drive aisle direction of flow may change only when the drive
aisle is interrupted by a circulation drive or structure.
MINIMUM SPACE REQUIREMENTS
AT
VARIOUS PARKING ANGLES FOR SELF-PARKING FACILITIES
TABLE INSET:
(cHiii) 002
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'A' S' C' 0' E'
Pai1<ing Parldng ~tali isle ~urb
!"'ngle ~1dth Pepth Width ength F' Overall
~O. ~,O' 16,8' 12,0' 18.0' 5,6'
1'15. ~,O' 19,0' 13,0' 12,7' 1,0'
too. til.O' 0,1' 18,0' 10.4' 8,2'
~. ~,O' 18,0' 24.0' ,0' 30.0'
GRAPHIC LINK (notavailable): FIGURE 31-171(1)
PARKING STALL DETAILS
TABLE INSET:
~. PARKING
GRAPHIC LINK (not available):
~5. PARKING
FIGURE 31-171(2)
e. Composition. Driveways in "RS" zoning districts shall be surfaced with concrete. Except
where specified above, parking facilities, including access aisles and driveways, shall be
surfaced with brick, asphalt or concrete surfacing maintained in a smooth, well-graded condition.
f. Drainage. All off-street parking facilities shall be drained so as not to cause any nuisances
on adjacent or public property. Such drainage facilities shall be arranged for convenient access
and safety of pedestrians and vehicles in accordance with standards set forth in these regulations.
g. Curbing. The use of freestanding wheel stops is prohibited in all parking areas. All parking
stalls shall be fronted with a continuous Type D or Type F concrete curbing between six and
nine inches high.
h. Parking lot islands. The islands formed by the interior of continuous curbing must be
landscaped in accordance with the provisions of this chapter. Islands with impervious surfaces
are prohibited, although the location of sidewalks inside of islands is allowable if an equal
amount oflandscaped surface is provided. Islands at the front of parking spaces must allow a
clear zone of20 inches to allow for bumper overhang. Lateral islands separating parking spaces
must be provided at least every nine spaces in width.
(7) Parking setback. The edge of all parking pavement and access roads (not including
driveway connections to a street) shall be set back a minimum often feet from the right-of-way
of all streets. This setback distance shall be landscaped in conformance with these regulations.
(8) Landscaping of off-street parking, Parking structures and surface parking lots shall be
landscaped in accordance with the provisions of these regulations.
(b) Amount of off-street parking. The minimum number of parking spaces to be provided and
maintained for each use or occupancy shall be as follows:
(I) Residential singlejamily detached and residential duplex:
a. Garage spaces. Each dwelling unit is required to provide a minimum of one parking space
in a fully enclosed, attached private garage. Dwelling units with four or more bedrooms are
required to provide a minimum of two parking spaces in a fully enclosed, private garage,
Conversion of the garage into living area is prohibited.
b. Exterior spaces. All dwelling units shall provide a minimum of one unenclosed parking
space. Dwellings with three or more bedrooms shall provide two unenclosed parking spaces.
Parking spaces shall not be located so as to require a parked vehicle to interfere with sidewalk
(c)(iii) 003
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS Page 4 of 15
travel lines. '
(2) Residential townhouse.
a. Garage spaces. Each dwelling unit is required to provide a minimum of one parking space
in a fully enclosed, attached private garage. Conversion of the garage into living area is
prohibited.
b. Exterior spaces. Each dwelling unit shall provide a minimum of one unenclosed parking
space. Dwelling units with four or more bedrooms shall provide two unenclosed parking spaces.
Parking spaces shall not be located so as to require a parked vehicle to interfere with sidewalk
travel lines.
(3) Residential multifamily.
a. 1 1/2 parking spaces shall be provided for each efficiency unit or one bedroom unit.
b. Two parking spaces shall be provided for each unit with two or more bedrooms or one
bedroom unit with den or study.
c. In addition to the above, multiple-family buildings of over 35 feet in height or with more
than 20 dwelling units shall be required to provide supplemental guest parking space equal to a
minimum of five percent of the spaces otherwise required.
(4) Other residential buildings.
a. Dormitories, fraternities: One parking space for each bed.
b. Hotels and motels, including clubs: One parking space for each sleeping room. If, in
addition to sleeping rooms, there are other uses operated in conjunction with and/or as part of the
hotel/motel, additional off-street parking spaces shall be provided for such other uses as would
be required by this section if such uses were separate from the hotel/motel to the extent of:
1. 35 percent of the required off-street parking for retail stores, offices, services,
establishments, bars, restaurants, dining rooms, night clubs or cabarets.
2. 50 percent of the required off-street parking for conference facilities, ballrooms, banquet
halls, meeting rooms or auditoriums.
c. Housingfor elderly requiring little or no special care, including retirement communities or
adult retirement communities: One parking space for each dwelling unit plus one space for each
employee on the day shift.
d. Housingfor elderly or others requiring moderate special care, including adult congregate
living facilities, assisted living facilities. extended care facilities and long-term care facilities:
One-half of one space per bed plus one space for each employee on the day shift.
e. Housingfor the elderly or others requiring extensive special care. including nursing homes
and hospices: One-half parking space per bed and one parking space per employee on day shift.
f. Integrated livingfacilitiesfor the elderly incorporating multiple care environments.
including continuing care retirement communities: Parking requirements to be calculated from
individual comp<;>nents based on c. through e. above.
(5) Non-residential: Amusement and recreational facilities.
TABLE INSET:
musement center, )ne space per 200 square feet gross floor area,
eneral
renas and stadiums )ne space per four seats or one space per 200 square feet gross floor area,
8asebalVsoftball diamonds
o spaces per diamond,
~uditorium One space per four seats or one space per 200 square feet gross floor area, whichever is greater.
(c)(iii) 004
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS Page 5 of 15
Batting cages W<J spaces per cage.
Billiard/pool center :lne space per 150 square feet gross floor area.
Bowling center "our spaces per lane, plus any restaurant, lounge and retail component.
~lnemalmovie theatre One space per four seats.
ommunity Centers One space per 250 square feet gross floor area.
nongQVemmentaij
;CUrts, outdoor (tennis,
andball, racquetball, etc.) hree spaces per court.
Dance hall One space per four seats or one space per 200 square feet gross floor area, whichever is greater,
Dance school One space per 200 square feet gross floor area,
Goil course our spaces per hole, plus driving range and dubhouse facilities (retail, restaurant, etc,)
Golf driving range TWO spaces per tee station.
Indoor court facimy ~our spaces per court, plus spa, restaurant, lounge or retail,
ive spaces, plus one space for each two slips, plus one space for each ten dry storage spaces, plus one space
lAarinas, commercial or each 350 square feet of indoor display space of boats for sale, plus one space for each 1500 square feet of
JUtdoor dispiayof boats for saie, plus any retail or restaurant space, For parking of cruise or charter
assengers, see 'Non-residential: Miscellaneous' subsection,
Miniature golf course Three spaces per hole.
h-heatre, live pertormance One space per four seats or one space per 200 square feet gross floor area, wllichever Is greater.
~wimming pool, Poe space per 50 square feel of water, plus retail, spa, or restaurant.
p,mmercial
(6) Non-residential: Community and educationalfacilities.
TABLE INSET:
ommunity centers One space per 250 square feet gross floor area,
~hild or adull care facilities >ee: 'Schools, nursery.'
Day care facilities ;ee: 'Schools, nursery.'
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(C)(III) 005
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS Page 6 of 15
Fraternal buildings, lodges, union halls ~ne space per 100 square feel gross floor area,
Colleges and universities, business and ~ne space per classroom plus one space adult per student or one space per ten seats of largest
professional schools ssembly room (i1 applicable), whichever is larger,
Government offices One space per 300 square feet gross floor area.
Hospitals wo spaces per bed, plus outpatient medical clinic and outpatient medical offices, iI any,
Ubralies One space per 350 square feet gross floor area,
Museums One space per 350 square feet gross floor area,
iPost offices bne space per 100 square feet of public service area plus one space per employee,
Isanltariums, orphanages, homes for the isee: 'Other residential buildings,'
'nflrm
ischools, elementary ive spaces plus one space per classroom or one space per ten seats of largest assembly room,
f,vt,ichever is larger,
Ischools, middle I-'ve spaces plus one space per classroom or one space per ten seats of largest assembly room,
f,vt,ichever is larger,
Ischools, nursery ive spaces plus one per employee or one space per 400 square feet gross floor area, whichever
s larger,
Schools, high I,. en spaces plus one space per classroom plus one space for each five students or one space
:>er ten seats of largest assembly room, whichever is larger.
chool, vocational lve spaces plus one space per classroom plus one space per student.
(7) Non-residential: Industrial, manufacturing and warehousing uses.
TABLE INSET:
Building supplies, sale of One space per 400 square feet gross floor area,
Contractor shops (general, electrical, piuming, One space per 400 square feet gross floor area,
oofing, air conditioning)
Construction equipment, sales or rental One space per 400 square feet gross floor area plus one space per 1000 square feet
outdoor display or storage,
Distribution terminals One space per 500 square feet gross floor area,
Manufacturing One space per 800 square feet gross floor area,
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS Page 7 of 15
Marine supplies, wholesale One space per 500 square feet gross floor area,
Medical supplies, wholesale pne space per 500 square feet gross floor area,
Research and testing laboratories Pne space per 500 square feet gross floor area,
ir rucks, heavy: sales or rental )ne space per 500 square feet gross floor area plus one s'pace per each 2000 square
eet of display or storage,
~eW-storage warehouses Jne space per 5000 square feet gross floor area plus one space per 300 gross flOOf
rea for office plus two spaces for living quarters,
Iwarehouses Jne space per 1000 square feet gross floor area,
(8) Non-residential.. Offices, medical and professional. (For office buildings over 150,000
square feet, see "Large Office Buildings" subsection)
TABLE INSET:
Business and professional offices Pne space per 300 square feet gross flOOf area,
Health institutions p.,e space per 300 square feet gross flOOf area,
Medical and dental offices Jne space per 300 square feet gross floor area,
Medical and dental dinics Jne space per 300 square feet gross floor area,
Research and testing laboratories Jne space per 500 square feet gross flOOf area,
ir elemarketers One space per 100 square feet gross floor area,
irravel agencies One space per 300 square feet gross floor area,
Veterinarians, animal hospitals One space per 300 square feet gross floor area,
(9) Large office buildings. A large office building must meet the following criteria: 1) Contain
a minimum of 150,000 square feet of total gross floor area for the building; 2) Restrict the
ultimate occupancy of the building to a minimum of two-thirds office uses; 3) Exclude cinemas
or theatres.
a. One parking space for each 300 square feet of 80 percent of the gross floor area, and
b. One parking space for each 200 square feet for 12.5 percent of the gross floor area, and
c. One parking space for each 75 square feet for 7.5 percent of the gross floor area.
In addition, a credit often percent of the total parking requirement shall be deducted from the
actual number of spaces calculated in the above formula.
(10) Non-residential: Restaurants, lounges and other food and drink establishments. (When
located in shopping centers over 40,000 square feet, see also "Shopping Centers" subsection)
TABLE INSET:
(c)(iii) 007
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS Page 8 of15
Bars, beer gardens, cocktail lounges, pubs, taverns, nightdubs One space per 100 square feet gross floor area.
afetenas One space per 200 square feet gross floor area,
offee and pastry store, coffeehouses One space per 200 square feel gross floor area,
)ellcatessens pne space per 200 square feet gross floor area,
ast food restaurants pne space per 200 square feet gross floor area,
Ice cream panor Poe space per 200 square feet gross floor area,
Restaurants, traditional pne space per 200 square feet gross floor area,
Open air seating for restaurants and bars shall be calculated at fifty percent of the square footage
of the area. Open air seating is defined as follows:
a. Any seating area which is not air-conditioned, and
b. Any seating area with or without a roof where a maximum of two sides are open or consist
of a substantially nonrigid material such as, but not limited to, canvas or screening.
(J 1) Non-residential: Retail stores and personal services. (For stores in shopping centers over
40,000 square feet, see "Shopping Centers" subsection.)
TABLE INSET:
~rt galleries Jne space per 350 square feet gross floor area,
nimal hospitals, See: 'Offices and medical offices.'
elerinanans
uction glllleries One space per 250 square feet gross floor area, or one space per three seals, in assembly or auditorium
rea, whichever is larger.
ulornatic teller machines olx spaces for first machine, four spaces (stand alone) for each additional machine,
.
,utomobile repair garages Three spaces plus three spaces per service bay,
_utomobile rental ive spaces, plus one space for each 25 parking spaces for vehide invenlory,
_utomobile sales Poe space per 300 square feet of interior area (not induding service bays) plus one space for each 35
parking spaces for vehlde inventory plus four spaces for ead! service bay,
h-hree spaces, plus one space per 200 square feet of convenience store, induding cashiering area, plus four
Automobile service station paces per service or washing bay, plus three spaces per automatic teller machine, plus any restaurant use,
!'Iutomobile washes, hand and our spaces plus eight stacking spaces per line or station,
~utomatic
(c)(iii) 008
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDARDS Page 9 of 15
akenes )ne space per 250 square feet gross floor area,
arber and beauty shops we spaces per chair or one space per 150 square feet gross floor area if not provided,
Banks, other similar flnancial One space per 200 square feet grass floor area, pius four spaces per ATM,
nstitutions
Building and home repair pne space per 300 square feet gross floor area, supplies,
Butcher Shops lne space per 250 square feet gross floor area,
.
'arpat, tile and other floor One space per 500 square feet gross floor area,
::overings retaii stores
Convenience store One space per 200 square feet gross floor area,
Dry cleaners and laundries, One space per 200 square feet gross floor area,
ake-in
Drugstores and pharmacies Poe space per 200 square feet gross floor area.
Furniture stores lne space per 500 square feet gross floor area,
Funeral homes, mortuaries even spaces per 1000 square feet grass floor area,
rocery stores One space per 200 square feet gross floor area,
Hardware stores One space per 300 square feet gross floor area,
Laundry, seil service .75 spaces per each wash machine and clothes dryer,
Liquor store, package stores )ne space per 150 square feet gross floor area,
Marine supplies One space per 300 square feet gross floor area,
Service station See; 'Automobile service station,'
wimming pool supplies One space per 300 square feet gross floor area,
II other retaii uses One space per 250 square feet gross floor area,
(12) Non-residential: Large Shopping Centers and/or Mixed-Use Developments,
a. Shopping centers over 40,000 square feet in gross floor area may use the following
generalized parking values:
I. One parking space for each 225 square feet of gross floor area in shopping centers with less
than 200,000 square feet of gross leasable area.
(c)(iii) 009
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY ST ANDA... Page 10 of 15
2. One parking space for each 200 square feet of gross floor area in shopping centers with
200,000 square feet or more of gross leasable area.
Shopping centers which have gross floor areas under 200,000 square feet may use the
generalized parking values only ifno more than ten percent of gross leasable area occupied by
anyone or any combination of the following uses:
1. Bars.
2. Beer gardens.
3. Cafes.
4. Cafeterias.
5. Cocktail lounges.
6. Convenience stores.
7. Night clubs.
8. Restaurants.
9. Taverns.
10. Theaters.
At the discretion of the Community Development Director, shopping centers utilizing the
generalized parking values may be required to enter into a covenant or other site plan restriction
mandating adherence to this requirement.
b. Shopping centers and/or mixed-use developments may apply for approval of shared
parking. The petition for shared parking shall include an independent parking study in a form
acceptable to the City, which includes but is not limited to, information indicating that the
shopping center and/or mixed-use development uses are such that a sufficient disparity in peak
demand for parking spaces exists to support the concept of shared parking.
At the discretion of the Community Development Director, shopping 'centers and/or mixed-use
developments utilizing shared parking may be required to enter into a covenant or other site plan
restriction restricting the size, mix or location of uses within the shopping center and/or mixed-
use development.
c. Parking requirements for shopping centers not meeting these criteria shall be calculated on a
use by use basis.
(13) Non-residential: Miscellaneous uses.
a. Places of worship: One parking space per four seats in the largest assembly area.
b. Parking for passengers of cruise boats. charter boats. water taxis or ferries: One per seat
capacity of boats served.
(14) Calculating required parking spaces:
a. Uses not specifically mentioned: The requirements for off-street parking for any uses not
specifically listed in this section shall be the same as provided in this section for the use most
similar to the one sought, as determined by the Community Development Department.
b. Fractional spaces: When units or measurements determining number of required off-street
parking spaces result in requirement of fractional space, any such fraction equal to or greater
than one-half shall require a full off-street parking space.
c. Mixed uses: In the case of mixed uses, the total requirements for off-street parking shall be
the sum of the requirements of the various uses computed separately, and off-street parking
space for one use shall not be considered as providing the required off-street parking for any
other use.
d. Measurements:
1. For the purposes of this chapter, gross floor area (GFA) shall mean the floor area inside of
the exterior walls including elevators, stairwells, common corridors, trash rooms, common
lobbies, common restrooms, meter rooms and ancillary power equipment rooms.
2. For the purposes of this article, net floor area (NF A) shall mean the floor area inside of the
exterior walls excluding elevators, stairwells, common corridors, trash rooms, common lobbies,
common restrooms, meter rooms, ancillary power equipment rooms, and all rooms with ceilings
(c)(iii) 010
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRIVEWAY STANDA... Page II of 15
less than six feet high.
3. For the purposes of this article, total floor area (IF A) shall mean the same as gross floor
area.
4. ,In hospitals, bassinets shall not count as beds.
5. In stadiums, sport arenas, places of worship and other places of assembly in which
occupants utilize benches, pews or other similar seating facilities, each 20 lineal inches of such
seating shall be counted as one seat for the purpose of computing off-street parking
requirements.
6. In outdoor display areas for vehicle sales or rental, only areas designated for vehicle
parking shall be measured. Driveway aisles and landscaped medians are not intended to be
included in the measured area.
(c) Use of permitted facilities. ,
(1) Permitted use. Parking spaces approved in accordance with this chapter may be used for
the intermittent parking of licensed motor vehicles of employees, occupants, owners, tenants or
customers utilizing the building or use served by said required parking space, Supplemental
parking (parking facilities provided but not required) may be used for any purpose related to the
use of the building it serves, subject to the conditions hereinafter set forth.
(2) Limitations on use of required parkingfacilities. The following uses and activities shall
not be permitted in required parking facilities:
a. Parking to serve an off-site building unless in accordance with an off-site parking
agreement approved by the City in accordance with this chapter.
b. Storage, repair or display of any vehicles, equipment or merchandise, except as may be
approved by the City through a temporary use permit.
c. Parking of vehicle, which, due to its size, shape, contents or location creates an obstruction,
safety hazard or nuisance.
d. Parking of vehicles outside of designated parking areas approved on a site plan.
(d) Off-street loading.
(I) General provisions, Adequate space for loading and imloading of materials, goods or
things, and for delivery and shipping, shall be provided and maintained on the same plot as the
building which it serves.
Where any structure is enlarged or any use is extended so that the size of the resulting occupancy
comes within the scope of this section, the full amountof off-street loading space shall be
supplied and maintained for the structure or use in its enlarged or extended size. Where the use
of a structure or land or any part thereof is changed to a use requiring an off-street loading space,
such space shall be supplied and maintained to comply with this section.
For the purposes of this section, an off-street loading space shall be an area at the grade level at
least ten feet wide by 25 feet long with fourteen foot vertical clearance. Each off-street loading
space shall be directly accessible from a street or alley without crossing or entering any other
required loading space, and shall be arranged for convenient and safe ingress and egress by
motor truck and/or trailer combination. Such loading space shall also be accessible from the
interior of any building it is intended to serve.
(2) Specifications. The following minimum conditions shall apply; additional conditions may
be imposed as part of a conditional use or final site plan approval. Off-street loading spaces shall
be provided and maintained in accordance with the following schedule:
a. For each retail store, storage warehouse, wholesale establishment, industrial plant, factory,
freight terminal, market, restaurant, funeral home, laundry, dry cleaning establishment or similar
building or use which has an aggregate gross floor area of:
TABLE INSET:
(c)(iii) 011
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRlVEW A Y STANDA... Page 12 of 15
,000 square feel to 25,000 square feet 1 space
5,000 square feet to 60,000 square feel spaces
50,000 square feet to 120,000 square feel spaces
120,000 square feet to 200,000 square feel . spaces
00,000 square feet to 290,000 square feet spaces
-
Ius for each additional 90,000 square feel over 290,000 square feet or major fraction thereof 1 space
b. Convenience store: 1 space
c. For each multiple dwelling, hotel or motel which has a number of dwelling or hotel/motel
units of:
TABLE INSET:
5 to 50 units 1 space
Over 50 to 200 unKs spaces
kNer 200 units b spaces
Such loading spaces shall not be located in the required front yard.
d. For each auditorium, convention hall, exhibition hall, museum, hotel, office building, sports
arena, stadium, hospital or similar use which has an aggregate gross floor area of:
TABLE INSET:
Over 20,000 square feel but not over 40,000 square feet
1 space.
Plus for each additional 60,000 square feet over 40,000 square feet or major fraction thereof,
1 space
The loading requirements for any unspecified use shall be that which is required for similar
specified uses.
e. Off-street loading facilities supplied to meet the needs of one use shall not be considered as
meeting off-street loading needs of any other use.
f. No area or facilities supplied to meet the required off-street parking facilities for a use shall
be for, or be deemed to meet, the requirements of this section for off-street loading facilities.
g. Nothing in this section shall prevent the collective, joint or combined provision of off-street
loading facilities for two or more buildings or uses, provided that such off-street loading
facilities are equal in size and capacity to the combined requirements of the several buildings or
uses and arranged as to be usable thereby.
h. Plans for buildings or uses requiring off-street loading facilities under the provisions of this
section shall clearly indicate the location, dimensions, clearances and access of all such required
off-street loading facilities.
(e) Drive-through service windows. Businesses that provide a drive-through service are
required to provide a drive-through service lane or lanes, whether for stacking or queuing, as
separate and distinct lanes from the circulation lanes necessary for entering or exiting the
(c)(iii) 012
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ARTICLE VIII. OFF-STREET PARKING, LOADING AND DRlVEW A Y STANDA... Page 13 of 15
property. Each drive-through lane shall be separated from other on-site lanes. Each such drive-
through lane shall be curbed, striped, marked or otherwise distinctly delineated. A separate and
distinct escape lane shall be provided. A public street or alley shall not be counted as an escape
lane. Drive-through lanes and escape lanes shall not conflict, or otherwise hamper access, to or
from any parking space. Pedestrian walkways shall be clearly separated from drive-through
lanes.
(1) Specifications. Stacking spaces necessary for the provisions of drive-through lanes shall be
detennined using the following table. Stacking area shall be provided at the first required
stopping area, such as the ordering board of a restaurant. If a second stopping area is required,
such as a delivery and cashiering window, auxiliary stacking area shall be provided in the
indicated amounts.
TABLE INSET:
Type of Facility Primary Stacking uxiliary Slacking
!,\ulomatic teller machine per service lane 1 per service lane
~ank per service lane 1 per service lane
~ar wash ~ per service lane per service lane
~ accessory use 3 per service lane 1 per service lane
atehouse per resident lane
per vishorlane
Laundry, dry deanars per service lane 1 per service lane
Pharmacies per service lane 1 per service lane
Restaurant per service lane per service lane
W"ideo rental S per service lane 1 per service lane
(Ord. No. 99-09, ~ l(Exh. A, ~ 801), 7-13-99; Ord. No. 2002-07, ~ 2, 3-5-02)
Sec. 31-172. Driveway standards.
(a) De~ign. Driveway locations, cross-sections and grades shall be installed in accordance
with this section, approved engineering plans, and the South Florida Building Code as amended
from time to time. Driveway access to the street system shall be according to the Subdivision
Design Standards, Street Layout contained in these regulations.
(b) Intersection with streets. Driveways for residential lots shall not encroach into the street
comer radius of two intersecting streets, or be closer than 25 feet to the intersection of extended
right-of-way lines. Driveways for multifamily and non-residential parking lots shall not intersect
a street comer radius, or be closer than 50 feet to the intersection of extended right-of-way lilies,
(c) Separation between driveways,
(I) Residential lots: Driveways for single-family residential lots shall be separated by a
(c)(iii) 013
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minimum of ten feet.
(2) Multifamily and nonresidential parcels: Driveways for multifamily residential parcels and
nonresidential parcels on collector roads shall be separated by no less than 150 feet of
landscaped frontage. Driveways for multifamily residential parcels and nonresidential parcels on
arterial roads shaH be separated by no less than 330 feet oflandscaped frontage.
(d) Maximum width. The maximum width of any driveway measured at the right-of-way line
shall not exceed the foHowing:
(1) Single-family and duplex residential: 20 feet in width for straight driveways. Circular
driveways may be permitted with a total of 30 feet in width, with no portion of the driveway
being wider than 20 feet at the right-of-way line.
(2) Multifamily residential: 36 feet in width per driveway, except that driveways containing a
curbed landscaped median may be permitted up to 48 feet in width per driveway. The total
number of driveways aHowed shall be limited to the number aHowed by the plat, or the approved
site plan.
(3) Non-residential: 36 feet in width per driveway, except that driveways containing a curbed
landscaped median may be permitted up to 48 feet in width per driveway. Large Shopping
Centers and Large Office Buildings are permitted driveways up to 48 feet in width per driveway,
except that driveways containing a curbed landscaped median may be permitted up to 56 feet in
width per driveway. The total number of driveways allowed shall be limited to the number
aHowed by the plat, or the approved site plan.
(e) Minimum size. Driveways for single-family and duplex structures in all residentially zoned
districts shaH have a minimum width of 18 feet and a minimum length of20 feet providing that
such 20 feet shaH be clear of sidewalks and roadway easements within the confines of the
subject parcel unless otherwise specified in these regulations. Driveways for three-car garages
shall have a minimum width of26 feet.
(f) Proximity to property lines, Except for, fee simple attached residential, and joint use
accessways, driveways shall not be located closer to a property line than the following:
(I) Single-family and duplex residential: Five feet.
(2) Multifamily residential: Ten feet or the bufferyard requirement contained in these
regulations, whichever is greater
(3) Nonresidential: The width of a required bufferyard, or if no bufferyard is required, ten feet
to another nonresidential parcel or 15 feet to a residential parcel.
(g) Paving. Driveways shall be paved with a hard, dust-free paving material complying with
the South Florida Building Code, as amended from time to time. Lots within Residential Single
(RS) Family Zoning Districts, shall utilize portland concrete material as a minimum for
driveways and aprons. Asphalt material is not permitted. In all other zoning districts all driveway
connections (aprons) shall be paved with Type Sol asphaltic concrete or other material approved
by City's Engineer.
(h) Clear sight triangles. All driveways and street intersections shall provide clear sight
triangles in both directions as follows:
(1) Measurement: Clear sight triangles on both sides of all driveways, medians and at all street
intersections shall be measured as follows:
a. Two major streets: 20 feet along the right-of-way lines from the intersection of two major
streets.
b. Major streetllocal street: 20 feet along the right-of-way lines from the intersection of a
major street with a local street.
c. Two local streets: 20 feet along the right-of-way lines from the intersection of two local
streets.
d. Driveway/major street: 20 feet along the right-of-way lines from the intersection of a
driveway with a major street.
e. Driveway/local street: Ten feet along the right-of-way line from the intersection of a
(c)(iii) 014
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driveway with a local street.
f. No parking areas shall be permitted within clear sight triangles.
(2) Landscaping: The area within any clear sight triangle shall be planted and maintained in a
way that provides clear visibility from a height of 30 inches to a height of eight feet above the
crown of the street. Vegetation shall be trimmed so that no limbs or foliage extend into the
required visibility area.
(Ord. No. 99-09, ~ l(Exh. A, ~ 802), 7-13-99)
Secs. 31-173--31-190. Reserved.
(c)(iii) 015
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AKl1CLE XlI. NONCONFORMING USES AND STRUCTURES
Page 1 on
ARTICLE XII. NONCONFORMING USES AND STRUCTURES
Sec. 31-271. Purpose and scope.
The purpose of this chapter is to regulate and limit the development and continued existence of
uses, structures, and lawful lots established prior to the effective date of these LDRs which do
not conform to the requirements of these LDRs. Many non-conformities may continue, but the
provisions of this chapter are designed to curtail substantial investment in nonconformities and
to bring about their eventual improvement or elimination in order to preserve the integrity of
these regulations and the character of the City. Any nonconforming use, structure, or lot which
lawfully existed as of the effective date of these LDRs and which remains nonconforming, and
any use, structure, or lot which has become nonconforming as a result of the adoption of these
LDRs or any subsequent amendment to these LDRs may be continued or maintained only in
accordance with the terms of this chapter.
(Ord. No. 99-09, ~ l(Exh. A, ~ 1201),7-13-99)
Sec. 31-272. Expansion of nonconforming use or structure.
A nonconforming use or structure shall not be expanded or extended beyond the floor area or lot
area that it occupied on the effective date of these LDRs or the effective date of any amendment
to these LDRs rendering such use nonconforming, except as provided for development
determined to have vested rights pursuant to subsection 31-3(b )(2).
(Ord. No. 99-09, ~ 1(Exh. A, ~ 1202),7-13-99; Ord. No. 2002-07, ~ 6, 3-5-02)
Sec. 31-273. Discontinuation or abandonment of a nonconforming use or structure.
If a nonconforming use or structure is discontinued or abandoned, whether intentionally or not
for a period of 90 consecutive days, including any period of discontinuation or abandonment
before the effective date of these LDRs, then that use or structure shall not be renewed or re-
established and any subsequent use of the lot or structure shall conform to the use regulations of
the land use district in which it is located.
(Ord. No. 99-09, ~ l(Exh. A, ~ 1203),7-13-99; Ord. No. 2002-07, ~ 7, 3-5-02)
Sec. 31-274. Change of use.
A nonconforming use may be changed to a permitted use or conditional use for'the zoning
district in which the property is located subject to the review and approval requirements of the
appropriate zoning district and Conditional Uses Regulations contained in these LDRs.
(Ord. No. 99-09, ~ l(Exh. A, ~ 1204),7-13-99)
Sec. 31-275. Repair or reconstruction of nonconforming structure.
(a) Ordinary repairs and maintenance may be made to a nonconforming structure. The
Community Development Department shall determine what constitutes "ordinary repairs and
maintenance", in accordance with the criteria that such repairs and maintenance do not
substantially alter the structure, result in a change of occupancy of the structure or contravene or
circumvent other provisions hereof.
(b) If a nonconforming structure is destroyed or damaged by a fire, flood, windstorm, or
similar abnormal and identifiable event, and the cost of restoring the structure to its condition
which existed immediately prior to the event does not exceed 50 percent of the cost of replacing
the entire structure, then the structure may be restored to its original nonconforming condition,
provided that a building permit is secured and reconstruction is started within 365 days from the
date of the damage, and such reconstruction is diligently pursued to completion prior to the
expiration of building permits.
(c) If a nonconforming structure is destroyed or damaged by a fire, flood, windstorm, or
(c)(iv) 001
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ARTICLE XII. NONCONFORMING USES AND STRUCTURES
Page 2 of3
similar abnormal and identifiable event, and the cost of restoring the structure to its condition
existing inunediately prior to the event exceeds 50 percent of the cost of replacing the entire
structure, then the structure shall not be restored unless the structure as restored, and the use
thereof, will thereafter conform to all requirements of the zoning district in which it is located.
Notwithstanding the above, structures may be restored when all of the criteria listed below are
met.
(I) Provides no greater height, provides no greater number of dwelling units (as to residential
structures) and no greater quantity of square feet of gross floor area (as to commercial structures)
than that which lawfully existed immediately prior to the event of destruction; and
(2) Requires a variance, if any, only from setbacks, lot coverage, height, floor area ratio,
motor vehicle parking area, landscaping, open-space or similar criteria, if the grant of such
variance would result in development which is still compatible with surrounding uses and
structures and does not result in restoring a non-conforming land use which is specifically
prohibited as a use by the LDRs. Compatibility shall be determined upon application for a
variance pursuant to section 31-76, except that the specific compatibility criteria described below
shall be used in lieu of the wmecessary hardship standard of section 31-76(e).
(3) In accordance with paragraph (2) above, restoration shall be found to be compatible if each
of the elements for which a variance is necessary, when balanced with all features of the
proposed restoration, do not impair the purposes of these LDRs in assuring that the grant of a
variance:
a. Maintains the basic intent of the LDRs;
b. Is not detrimental to the appearance of the community as protected by the LDRs;
c. Is compatible with the surrounding land uses and structures and is not detrimental to the
community .
(d) The restriction upon restoration and rebuilding which is provided by subsection (c) above,
shall not apply to damages or destruction to any residentially developed property which damage
or destruction is caused by a hurricane or other natural disaster affecting a substantial portion of
the community and not primarily affecting an isolated property or development. This provision
is intended to avoid disruption of housing availability and to avoid inconvenience to the
residential population.
(e) The restriction upon restoration and rebuilding which is provided by subsection (c) above,
shall not apply to damages or destruction to any property within a Community Facility zoning
district or commercially developed property which damage or destruction is caused by a
hurricane or other natural disaster affecting a substantial portion of the community and not
primarily affecting an isolated property or development. This provision concerning
commercially developed property shall not be applicable to the City's redevelopment area
described on Exhibit" 1 " attached hereto and incorporated herein [by reference]. This provision
concerning commercially developed property is intended to avoid disruption of economic
resources and employment centers within the City so as to assure continued economic growth
and development. This subsection (e) shall not be applicable to sign structures.
(Ord. No. 99-09, ~ l(Exh. A, ~ 1205),7-13-99; Ord. No. 99-15, ~ 1, 10-5-99)
Editor's note: Exhibit "I" ofOrd. No. 99-09, ~ l(Exh. A), adopted July 13, 1999, as referred to
in ~ 31-275(e) above, has not been included within this Code, but may be found on file in the
office of the City Clerk.
Sec. 31-276. Alteration or enlargement of nonconforming structure.
(a) Except as provided in this section, a nonconforming structure shall not be enlarged in any
manner or undergo any structural alteration unless to make it a conforming structure. Such
alteration or enlargement may be permitted provided that:
(1) The enlargement or alteration itself conforms to the requirements of these regulations; and
(2) The total structure as enlarged or altered does not diminish the total required yard area or
(c)(iv) 002
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ARTICLE XII. NONCONFORMING USES AND STRUCTURES
Page 3 oD
exceed the maximum density or intensity limit for the applicable district; and
(3) The use of the structure is conforming; and
(4) The property owner or developer secures conditional use approval for the enlargement or
addition in accordance with the procedures in these LDRs.
(b) This section shall not bar an alteration or, enlargement which is authorized by subsection
31-3(2)b., concerning vested rights, under those circumstances in which the right to alter or
enlarge an existing lawfully nonconforming structure is vested.
(Ord. No. 99-09, ~ l(Exh. A, ~ 1206),7-13-99)
Sec. 31-277. Moving of nonconforming structure.
A nonconforming structure shall not be moved in whole or in part to any other location unless
every portion of such structure and the use thereof is made to conform with all requirements for
the district to which such structure is moved. The moving of the structure also shall comply with
the requirements of other applicable City regulations.
(Ord. No. 99-09, ~ l(Exh. A, ~ 1207),7-13-99)
Sec. 31-278. Nonconforming lots of record.
(a) Subdivision of nonconforming lots. When two or more contiguous, vacant, nonconforming
lots of record are in a single ownership, if such lots are subdivided, they must be subdivided in
such manner as will make them conforming. If this is impossible or impractical the City
Commission may grant such variance from this requirement in conformance with the
requirements of subsection 31-76(e) of these regulations.
(Ord. No. 99-09, ~ l(Exh. A, ~ 1208),7-13-99)
(c)(iv) 003
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CITY OF AVENTURA
.
OFFICE OF THE CITY MANAGER
MEMORANDUM
FROM:
TO:
DATE:
. SUBJECT: Pending Development Summary
,~,'
, In order to assist the City Commission in their deliberations regarding the pcitential
moratorium, the attached document outlines a summary of pending developments. The
list does not include projects that have obtained a building pel'lTlit.
The summary categorie.s projects are as follows:
1. Projects with Site Plan Approval and Vested Rights Agreement
2, Projects with Vested Rights Agreements.
, 3. ' Projects with Development Agreements,
4. Projects with Site Plan Approval.
5. Application filed with the City without Site Plan Approval.
6. Vacant land, no application on file.
7., Potential redevelopmer:lt sites whereby owners have made inquiries with
the City.
A review of the summary will be presented at the April 21, 2005 Workshop Meeting. If
you have any questions, please feel free to contact me. '
EMS/act
Attachment
cc: David Wolpin, Esq., City Attomey
Joanne Carr, Planning Director
CC01337-05
,
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CITY 01= AVENTUAA
Pending Development Summary
PROJECTS WITH SITE PLAN APPROVAL AND VESTED RIGHTS
AGREEMENTS '
1. Minto Communities Condominiums (Williams Island)
, RMF4 Zoning Distrid
41 Dei Island Blvd
2. Peninsula Condominiums Phase 2
RMF4 Zoning Distrid
3251 NE 183 Street
3, Villa Flora Town Homes (Williams Island)
RMF4 Zoning District
1500 Island Blvd
PROJECTS WITH VESTED RIGHTS AGREEMENTS
1. Turnberry Village Shops
RMF4 Zoning,Distrid
East Country Club and Yacht Club Way
~
2. Two Islands
RS2
Williams Island
PROJECTS WITH DEVELOPMENT AGREEMENTS
.1 Aventura Landings,
RMF4 Zoning District
NE 28 Court and Miami Gardens Drive
PROJECTS WITH SITE PLAN APPROVAL
1, Hochstein and Kane Medical Office Building
MO Zoning District
21420 Biscayne Blvd.
2. Aventura Business Center
OP Zoning Distrid
NE 30 Avenue between NE 209 Street and NE 210 Street
3. Aventura Corporate Center Phase 3
OP Zoning Distrid
NE 30 Avenue between Waterways Blvd and NE 209 Street
)
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4, 3030 at Aventura
3030 NE 188 Street
5. Uptown Express "Artech Residences"
RMF3A & B Zoning Districts
3020 NE188 Street
,6, The AtriulTi atAventura
RMF3B Zoning District
3131 NE 188 Street
7, Embassy Suites
B2 Zoning District
1865-1 Biscayne Blvd
8. Aventura Medical Arts Building
, MO Zoning District ,
, Biscayne Blvd and NE 2,11 Street
APPLICATIONS ON FILE
WITHOUT SITE PLAN,APPROVAL
.
p."
1. Aventura Professional Tower (Embassy Suites Revision)
B2 Zoning District '
18651 Biscayne Blvd.
2. Lincoln Pointe Redevelopment
RMF4 Zoning District ,
17900 NE 31 ,Court
3, Aventura Corporate Center Phase 4
OP Zoning District' '
20808 Biscayne Blvd
4. Tauber School Expansion (Com'11unity Facilties)
B2 Zoning District
20400 NE 30 Avenue
5, The Bay Club Redevelopment-
(The Parc Central Aventura Tower \II)
RMF4 Zoning District
3300 NE 191 Street and 192 Street
6. Isla Del Sol (Canal behind Berlin Park)
CNS District '
3560 NE 207 Street
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VACANT LAND
NO APPLICATION ON FILE
1. Six Acre Site at end of 188111 Street
OP Zoning District
3250 NE 188 street
2, Various vacant lots in the Medical Office District
MO District
3. Gulfstream
B2 and MO Zoning Districts
'Biscayne Blvd and NE 213 Street
4. Turnberry Parcel atthe Mall
B2 Zoning
Biscayne Blvd and Aventura Blvd
5. Turnberry Parcels on Biscayne
82 Zoning
Biscayne Blvd and NE 203 Street
6. Vacant land on Waterways Blvd
B2 Zoning
Waterways Blvd and NE 30 Avenue
POTENTIAL REDEVELOPMENT SITES WHEREBY OWNERS
HAVE MADE INQUIRES WITH CITY.
1. Suntrust Bank
82 Zoning District
Aventura Blvd and W. Country Club Dr.
2, The Waterways Shops
, B2 Zoning District
3565 NE 207 Street
3. Hi Lift Marina
TC2 Zoning District
2890 NE 187 Street
4. Coscan Sales Center
RMF4 Zoning District
3750 Yacht Club Drive
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,:Gtiedes Cole &Bdiiiske; 'P.A,
Memo.
To: Mayorand Commissioners
From: David'M. Wolpin r,1v,
Date: April 8,2005
Re: Potential Moratorium {;:.,
I. Introduction
The City Commission has requested that we research and prepare a legal opinion on the
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feasibility of enacting, via ordinance, a temporary moratorium upon the issuance of development
orders and development permits within the Ci~. Accordingly, the purpose of this Memorandum
is to examine the feasibility of imposing a moratorium and to discuss the applicable legal issues
,so that the City Commission may determine whether or not to request that we prepare a proposed
moratorium ordinance for consideration by the City Commission.
ll. Background of Morntorium Concept
Recently, the United States Supreme Court endorsed the use of temporary moratoria as a
growth management tool of local government. In Tahoe-Sierra Preservation Counci~ Inc. v.
. "
Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L.Ed 2d 517 (2002), the
United States Supreme Court found that a temporary moratorium imposed by a regional planning
agency to maintain the status quo while studying the impact of development on Lake Tahoe and .
APR 1 1 2005
OFflCEOFTHE
CllY MANAGER
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.. formulating a strategy for assuring environmentaIly sound growth, was- not itself a taking of
private property rights.
Although mora1Oria have been used as a tool of growth management by local
govenunents for many years, there was a substantial time period during which several attempted
moratoria in Florida were stricken down by the Courts for defects in procedure or process. See
City ofSanibel v. Buntrock, 409 So.2d 1073 (Fla. 2d DCA 1981), review denied,Al7 So.2d 428;
City of Gainesville v. GNV Im>estments, 413 So2d 770 (Fla. 1st DCA 1982); Franklin County v.
Leisure Properties. l1d, 430 So.2d 475 (Fla 1st DCA 1983), review denied, 440 So.2d 352 (FJa.
1983).
An example of a recent Florida appellate court opinion in which a local government
.
moratorium was upheld is the case of WCI Communities. Inc. v. CiIy of Coral Springs, 885 So.2d
912 (4th DCA 2004), in which the Court upheld a nine month moratorium during which the City
studied and adopted new multi-family zoning regulations governing setbacks, building shape,
parking, sidewalks and landscaping. ' However, even before the Lake Tahoe or Coral Springs cases,
many courts throughout the nation had upheld temporary moratorium ordinances.!
Prior to the Lake Tahoe case, the landmark case whicb had been frequently cited as setting
forth the prerequisites to the valid exercise of the moratorium power, is the case of Almquist v. Town
If More importantly, the City of Aventura has a history of successfully imposing moratorium
ordinances for appropriate durations and purposes and has done so on three (3) occasions, including
Ordinance No. 96-12 (providing for initial six month moratorium on billboards pending completion
of the City's billboard regulations); Ordinance No. 97-22 (providing for initial six month
moratorium in marina area and hospital area pending completion of the City's first Comprehensive
Plan) and Ordinance No. 98~20 (providing six month initial moratorium on residential buildings
over a specified height). '
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of Marshan, 245 N.W.2d 819 (Minn. 1976). In a scholarly opinion upholding a moratorium, tQe
Minnesota Supreme Court in Almquist identified the five prerequisites to valid moratoria, including:
I. The moratoriwn ordinance must be adopted in good faith;
2. The moratorium ordinance must not be discriminatory;
3. The moratorium ordinance must be oflimitCd duration;
4. The moratorium ordinance must be appropriate to the development of a
comprehensi ve zoning plan; and ,
5. The city council must act promptly to adopt the plan.
See Paul R. Gougelman, Moratoria and Interim Growth Management, Florida Environmental and
Land Use Law, Section 5 (January; 1994):
The Courts recognize that the purpose of a moratorium is to enable a local government to
maintain the status quo while regulations are being developed and implemented to address and
remedy a problem which poses a tl1Teat to the public health, safety and welfare. The justification for
creating a moratorium is to assure tile effectiveness of new regulations which are to be developed.
The legal concept is that if uses which are contrary to new regulations are allowed to be commenced
during the period in which such new regulations are actively developed and implemented, the
pmpose of the new regulations may be defeated. In short, lawful moratoriums are intended to
2{ In Almquist, the town of Mar shan, an agricultural community, imposed a six month development
moratorium when faced with several proposals for the widespread conversion of farm acreage into
single family development. Faced with the specter of a drastic change in the nature of the
comrmmity, and the inability of the community to provide infrastructure and services which would
be demanded by a conversion from the low impact agricultural use to the high impact and demand
, of extensiveresidential development, which would change the very nature of the rural community,
the town of Marshan implemented a six month moratorium on development pending the adoption of
a comprehensive zoning plan.
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address and prevent the problem of "locking the stable after the horse is stolen". See Downham v.
City Council afAlexandria, 58 F2d 784, 788 (E.D. Wa.l932).
Once a significant problem is identified and a study of the remedy for the problem is in
progress, there is ample justification for a moratorium as being necessary to preserve the status q\1O.
One of the key requirements for adoption of a moratorium is that there be an identification of an
existing problem which is within the authority oflocal government to solve or attempt to solve and
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of the necessity and means to develop remedial measures to address such problem. As noted in
"Moratoria and Interim Grov,,1h Management":
Before drafting a moratorium ordinance, the practitioner should
determine exactly what the City or County is trying to accomplish.
A simple reaction to the problem .is to institute a moratorium on the
issuance of building permits. A better approach is to examine what
the City or County is trying to encourage, discourage, and achieve
and to determine precisely what type of moratorium is needed. (page
5-4).
It is further observed that:
A proper relationship betWeen a moratorium and a, growth
management problem can exist if the moratorium is put into effect to
study the grov,,1h management problem and a good faith effort is
made to find solutions and enact remedial ordinances. Virtually'
every case of a development permit moratorium involves a local
government enacting a moratorium to stop conditions from getting
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out of control while a study committee examines a, growth
management problem and proposes remedial ordinances. (page 5-
23).
m. Studv Is Underwav
It must be recognized that a moratorium is simply a means for maintaining the status quo
while problems are studied and remedial measures are developed and implemented. A moratorium
is not an end result It is simply a planning tool intended to serve as a means to facilitate the
achieving of a desired end result
Presently, within the City, a growth management study is already underway in the form of
the presently in progress evaluation and appraisal report ("EAR") work for the update of the City's
Comprehensive Plan in accordance with Chapter 163, Florida Statutes. It is expected that the EAR
will be completed by December, 2005, pursuant to the, City's contract with the City's planning
consultants. A key component of the EAR is to study existing and anticipated growth management
problems and to help'develop remedial amendments to the Comprehensive Plan and to the Land
Development Regulations. The City has previously identified the following major issues that will be
addressed during the EAR process:
. Development and Redevelopment
. Housing
. Emergency Management
. Transportation
. Intergovernmental Coordination
. Quality of Life
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IV. Proposed Moratorium Parameters
It is our opinion that if the Commission decides to do so as a matter of discretionary
legislative policy, it is feasible to impose a moratorium in order to enable the Conunission to study
the peninent issues and to determine whether to enact additional growth management regulations.
If the City Commission determines that it is necessary to institute a moratorium, after consulting
",'ith the City Manager it is recommended that the moratorium be focused upon the study and
formulation of remedial measures related to the following areas which need to be addressed during
the EAR process:
Traffic Concurrency;
(1)
(2)
(3)
(4)
(5), Emergency Management.
In addition, the moratorium should be confined to development on any property located east
of Biscayne Boulevard in all areas which are zoned residential or zoned commercial. The
moratorium may, be imposed for an initial term of six (6) months in order to enable substantillI
completion of the major work of the EAR and the formulation of remedial measures. Further, staff
also recommends that the moratorium should not apply to':
1. any public purpose proj ect which is required by any government entity; and
2. any office buildings of a height which does not exceed ten (10) stories; and
The Town'Center land use designation;
Redevelopment Guidelines;
Building Height; and
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any development for which a building permit or any required site plan approval
has been issued prior to the imposition of this moratorium;3 and '
4. any development which is protected from a change in municipal ordinances to the
extent provided by Section 163.3233,. Florida Statutes, for those statutory
development agreements which have been previously entered into; and
\
5. the constrUction, renovation or improvement of (i) individual single family
, homes; or (ii) retail or office space "'~thin the confines of existing buildings; or
(iii) non-occupiable strUctures, including signs, cable television or
telecommunication facilities; and
6. work for the decoration of the exterior of an existing structure or for the
improvement of the interior of existing dwelling units; and
7. improvements authorized by administratively approved amendments to site plans
referenced in paragraph (3) above, so long as ,said improvements do not increase
the intensity or density of development or adversely impact traffic conditions; and
8. community facilities listed in Sec. 31~147(a)(1) of the City Code which constitute ,
a permitted or cond}tional use in the proposed location.
Accordingly, after research of the pertinent legal issues, it is our opinion that it is feasible to declare
and impose a moratorium upon the issuance of development orders and development permits based
on the parameters which are described abo~e.
V. Status of Development within the City
In determining the feasibility and scope of a potential moratorium, we are mindful of the
development status of the City. The City is presently almost essentially developed. Accordingly,
any moratorium'must be tailored to achieve growth management goals which are feasible. Much of
the remaining undeveloped portions of the City have previously been granted approvals by Miami-
3; Imposition of a moratorium upon development which has already received building permits
or any required site plan approval may render the moratorium vulnerable to judicial challenge.
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.. Dade County, prior to the creation of the City in 1995. Accordingly, pursuant to the Land
Development Regulations (the "LDRs") of the City, those undeveloped parcels that obtained vested
rights from the County lind complied with the vested rights application requirements of the LORs
are protected by Vested Rights Agreements which have been issued pursuant to City Code Section
31-3(b).4 The presently remaining undeveloped parcels within the City which an; governed by ,
Vested Rights Agreements under City Code Section 31-3(b) include:
1. Turnberry U Site at Yacht Club Way and East Country Club D~ve;
2. Phase n ofTlie Peninsula on NE 183 Street;
3. The 4100 site on Williams Island. .
While the use and development of private property is generally subject to compliance with
the body of government regulations, as those regulations change from time to time, the Courts have'
..
long recogni:?:ed an exception to the strict application of changed laws, under the doctrine of
equitable estoppel or vested rights. The doctrine of vested rights operates to limit a local
governments exercise of its zoning powers and immunizes a development from, subsequently
enacted zoning laws. when applicable. In order for this legal doctrine to apply and for vested rightS
to be established, a property owner must demonstrate that:
a. relying in good faith;
b. upon some act or omission of the local government;
c. the property owner has made such a substantial change in position or incurred such
extensive obligations and expenses that it would be highly inequitable and
4/ The City has successfully used these vested rights agreements as a means ofnllITov.'ing
down or limiting those vested rights which developers previously had obtained from Miami-
Dade County prior to the creation of the City.
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manifestly unjust to pennit the govemment to destroy the rights of the property
owner by applying a subsequent regulation.
See. Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975); Monroe
Coumy \I. Ambrose. 866 So.2d, 707 (Fla. 3d DCA 2004). When equitable estoppel applies, rights
are treat~ as vested and protected. City Code Section 3 l-3(b)(2) is specifically founded upon this
equitable estoppel- vested rights concept.
VL Other Essential Inuedients of Moratorium Ordinance
Any, moratorium ordinance should contain two provisions which are essential to assuring
tlllit the ordinance does not operate in an unlawful manner. Those two provisions are:
I, a vested rights provision; and
2. a waiver provision.
The purpose of a vested rights provision is to make sure that a proposed moratorium does
not unlawfully cut off or impair vested rights or rights protected by equitable eStoppel. The
destrUction ofvested rights may subject the municipality to monetary liability under Florida law as
well as under !ederallaw.
The purpose of a waiver provision is to assure that, during the course of any moratorium.,
waivers for development permits may be given, subject to appropriate procedures, for those projeCts
which are not inconsistent with the proposed regulations 10 be developed. In short, if a proposed
use is not inconsistent ",ith the regulations \\mch are being developed or does not create the type of
problem which the proposed regulations are intended to address, then there is no valid reason to
subject such property to a moratorium. A waiver enables a harmless project to proceed. A waiver
provision is created in recognition that the imposition of a moratorium which is done \\oith a net so
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'~ broad that it captures items which do not pose the risk intended to be addressed by the new
regulations, may be challenged as an unlawful moratorium which does not serve the pUblic health,
safety or we1fare.
Each of the three prior moratoria orcfulances o~ the City had both a vested rightS provision
and a waiver provision. Inclusion of such provisions helps to avoid the judicial invalidation of the
moratorium.
VIL Other Issues.
A In preparing this Memorandum, we have examined whether the imposition of a
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moratorium would serve to enable an effective rate of growth ordinance approach (the "ROGO") to
be adopted as a lawful means of dela)-ing the implementation of development which is protected by
vested rights, ROGO ordinances attempt to set an annual cap on the quantity of new square footage
of development Our law firm has been inv,olved in the implementation of ROGO for certain
municipalities in Momoe County. However; those areas in Monroe County are subject to unique
statutory provisions as an area of critical state concern under Sec, 380.0552, F.S., and to special
Florida Department of Community Affairs (the "DCA") oversight arising from Comprehensive Plan
review proceedings related to hurricane evacuation issues. Sec. 380.0552, F.S., is predicated on the
may be further studied.
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B.
Additionally, we have examined whether the 1995 enactment by the Florida
legislature, of the Private Property Rights Protection Act, (the "Bert Harris Act") creates any
impediment to any proposed moratorium. The Bert Harris Act protects private property from an
interference which is short of a "taking" but constitutes an "inordinate burden". 1n an article
published in the Florida Bar Journal, shortly after creation of the Bert Harris Act, Jane Hayman,
then serving as Deputy General Counsel for the Florida League of Cities, astutely cautioned that:
Cities and counties in Florida must take a second look at how they
regulate and impact land. Some local governments will engage in
extensive fiscal impact analysis prior to promulgating any new land
development regulations to avoid litigation under the Harris Act.
Other local governments will make adjustments to the impact of
newly promulgated regulations as claims are filed by land owners.
And other local governments may simply refuse to make land use
changes or may litigate. It is also expectedCh. 95-181 will increase
public confusion concerning preservation of private property rights,
require cities and counties to adjust existing local zoning and
development approval, and appeal processes, and incur additional
administrative expense, promote costly litigation, and further
encumber our already overburdened system. See 70 Fla. Bar J.
(January, 1996).
Those early warnings have proven to generillly be correct and the Bert Harris Act has impacted
certain municipal decisions. See, Royal World Metropolitan, Inc. v. City of Miami Beach, 863
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So.2d 320 (Fla,3d DCA 2004); rev. denied (Fla. Feb. 08, 2005) (holding that sovereign immunity
does not bar a Bert Harris Act claim).
However, the Bert Harris Act defmes an "inordinate burden" as one that is permanent and
not merely a temporary impact A moratorium, by its very nature, is a temporary measure. In
assessing the feasibility and scope of any potential moratorium, we have been guid~ by the
, recognition tllat any moratorium must be confined to serving a purpose which is within the scope of
the City's authority and serves to facilitate the remediation of a growth management problem, while
respecting private property rights. Accordingly, any impact of the Bert Harris Act would be further
examined at the time that any new permanent growth management regulations are formulated.
VIIL Conclusion
Accordingly, for the reasons indicated above, if the City Commission decides to request us
to prepare a proposed moratorium ordinance for consideration by the City CoInmission, we would
recommend that the moratorium ordinan<;e be confined to enabling the study and development of
growth management regulations pertaining to the items enumerated in Section IV above, as part of,
the pending EAR process, and that the moratorium shall contain the waiver and vested rights
protection provisions.
Please advise us if there are any questions on this matter.
Cc:
Eric M, Soroka, City Manager
Joanne Carr, Planning Director
Nancy Stroud, Esq.
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Lincoln Pointe
HEARING NOTEBOOK
, 1.
Agenda - The City of Aventura September 6, 2005
2. Letter'to Eric Soroka from Brian Adler, dated August 18, 2005, regarding Notice
of Appeal of Denial of Vested Rights. '
3. ' Determination on Vested Rights Application
4. City of Aventura Notice of Development Permit and Development Order
Moratorium Advertisement
5. Vested Rights Submittal- Lincoln Pointe. Letter to Eric Soroka from Stanley
Price, dated June 8, 2005 with attachments. '
(a) Letter to Brian Adler from Joanne Carr dated April 7, 2005,
regarding Folio No. 28-2210-050-0020.
(b) Affidavits of James M. Cauley, Jr., Jacques Claudio Stivelman,
Gilbert Benhamou.
(c) Financial Expenditures.
(d) Lincoln Pointe Tarragon Management, Inc. Thirteen Month Income
Statement April 15, 2005.-
(e) Letter to Joanne Carr from Carter McDowell dated April 28, 2005. '
(f) Letter to Brian Adler from Joann~ Carr dated April 14, 2005
regarding Case File No. Q4-SP-05 with attached letter dated
3/25/05 from Brian Adler t9 Joanne Carr.
(g) Letter to Joanne Carr from Suzanne Danielsen of Tinter
Associates, Inc. dated May 11, 2005.
(h)
(1) Letter to Joanne Carr from Carter McDowell dated April 19,
2005 regarding the appeal of Administrative Decisions.
(2) Letter to Eric Soroka from Carter McDowell dated April 19,
2005 regarding the Appeal of administrative Decision
Regarding Requirements and Related to Driveway Entrance
to Lincoln Pointe Property.
MIAMI 924600.\ 7592420873
1
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(3) Letter to David Wolpin from Brian Adler dated February 7,
2005 regarding Application for Administrative Site Plan
Approval. .
(4) Letter to David Wolpin from Brian Adler dated March 2, 2005
regarding improvement on driveway on adjacent property.
(5) Letter to David Wolpin from Brian Adler dated March 16,
2005.
6. Letter to Claudio Stivelman from Joanne Carr dated March 11, 2004ragarcling
Land Development Regulations.
7. Letter to Joanne Carr from Brian Adler dated March 31, 2004 regarding letter
dated March 11, 2004 to Claudio Stivelman. '
MIAMI 924600.1 7592420873
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Or ("'.A~.,.l-1-_
Susan Gottlieb, Mayor
Zcv A.aha""
Bob Diamond
Bmy Joel ,
Harry Hobbcrg
Michad Stem
Luz U,bO.. Weinberg
A~e City of
r-\..ventura
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Eric M. Soroka, ICMA.cM
av '"'-&
T...... M. s....o..... MMC
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W.ScrotllHelfman
Putonz. Cole II< Bonloke '
AGENDA
SEPTEMBER 6, 200S 6 PM
Government Cenlel'
19200 West Counb'y Club Drive
Aventura. Florida 33110
1, CALL TO ORDER\ROLL CALL
2, PLEDGE OF ALLEGIANCE
3. AGENDA: Request for DeletionsIEmergency Additions
4, SPECIAL PRESENTATIONS: Certificates of Appreciation to sponsors of ACES
Smart, Boards
5. CONSENT AGENDA: Malte" included under the Consent Asenda arc self-explanatory and arc not
expected to require discussion or review. hems will be enacted by one malion. If di5C\Jssion is desired by any
member of the Commission. that item must be removed from the Consent Agenda and .considered separalely.
A. APPROVAL OF MINUTES:
July 6, 2005 Commission Meeting
July 21, 2005 Commission Meeting
July 21,2005 Workshop Meeting
July 26, 2005 Commission Meeting
B, A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA, EST ABLISmNG A RANKING OF
FIRMS TO PERFORM AUDITING SERVICES; AUTHORIZING
THE CITY MANAGER OF THE CITY OF AVENTURA,
FLORJDA, ON BEHALF OF SAID CITY, TO NEGOTIATE FOR
SAID SERVICES; AUTHORIZING THE CITY MANAGER TO
DO ALL THlNGS NECESSARY TO CARRY OUT THE AIMS OF
THlS RESOLUTION; AND PROVIDING AN EFFECTIVE DATE.
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF AVENTURA,FI..ORIDA, APPROVING THAT CERTAIN
"AGREEMENT CONCERNING COMMERCIAL ADVERTISING
SIGN,CHARTER SCHOOL REVENUE", BETWEEN THE CITY
OF A VENTURA AND CLEAR CHANNEL OUTDOOR. INC.,
C,
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CONCERNING PROCESSING OF APPLICATION FOR
AMENDMENT OF CONDITION APPLICABLE TO
PREVIOUSLY APPROVED BILLBOARD; PROVIDING FOR A
PORTION OF COMMERCIAL ADVERTISING REVENUE TO
BE UTILIZED FOR CITY OF A VENTURA CHARTER SCHOOL
PROGRAM, IN THE EVENT THAT MODIFICATION OF
CONDITION IS AUTHORIZED BY 'rHE CITY COMMISSION;
PROVIDING FOR IMPLEMENTATION; PROVIDING FOR
EFFECTIVE DATE.
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF AVENTURA, FLORIDA, AUTHORIZING THE CITY
MANAGER ON BEHALF OF THE CITY TO EXECUTE AND
OTHERWISE ENTER INTO THE ATTACHED MUTUAL AID
AGREEMENT BETWEEN THE CITY OF A VENTURA, AND
THE CITY OF FLORIDA CITY FOR LAW ENFORCEMENT
ACTIVITIES; AUTHORIZING THE CITY MANAGER TO DO
ALL THINGS NECESSARY TO CARRY OUT THE AlMS OF
THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE
DATE.
E.
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA, AUTHORIZING THE CITY
MANAGER ON BEHALF OF THE CITY TO EXECUTE AND
OTHERWISE ENTER INTO THE ATTACHED MUTUAL AID
AGREEMENT BETWEEN THE CITY OF A VENTURA AND
THE VILLAGE OF BAL HARBOUR FOR LAW
ENFORCEMENT ACTIVITIES; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO CARRY
OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING '
FOR AN EFFECTIVE DATE.
F. A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA, AUTHORIZING THE CITY
MANAGER ON BEHALF OF,THE CITY TO EXECUTE AND
OTHERWISE ENTER INTO THE A IT ACHED MUTUAL AID
AGREEMENT BETWEEN THE CITY OF A VENTURA AND
THE CITY OF SUNNY ISLES BEACH FOR LAW
ENFORCEMENT ACTIVITIES; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO CARRY
OUT THE AIMS OF THIS, RESOLUTION; AND PROVIDING
FOR AN EFFECTIVE DATE.
G. A RESOLUTlQN OF THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA, AUTHORIZING THE CITY
MANAGER ON BEHALF OF THE CITY TO EXECUTE AND
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OTHERWISE ENTER INTO THE ATTACHED MUTUAL,AID
AGREEMENT BETWEEN THE CITY OF A VENTURA AND
THE CITY OF NORTH MIAMI FOR LAW ENFORCEMENT
ACTIVITIES; AUTHORIZING THE CITY MANAGER TO DO
ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF
THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE
DATE.
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA, AUTHORIZING THE CITY
MANAGER TO EXECUTE THE ATIACHED WORK
AUTHORlZATION NO. 01-0103-056 FOR PROFESSIONAL
DESIGN SERVICES FOR THE MIAMI GARDENS DRIVE
EXTENSION PROJECT BY AND BETWEEN THE CITY OF
AVENTURA AND CRAVEN THOMPSON AND ASSOCIATES,
INC,; AND PROVIDING AN EFFECTIVE DATE.
I.
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA A WARDING AND LETTING A
BID/CONTRACT FOR BID NO. 05-07-27-2, CUSTODIAL
SERVICES FOR CITY FACILITIES TO KELLY JANITORIAL
SYSTEMS, INC. AT THE ANNUAL BID PRICE OF S166,654.32;
AUTHORIZING THE CITY MANAGER TO EXECUTE
ASSOCIATED CONTRACTS; AUTHORIZING THE CITY
MANAGER TO TAKE NECESSARY AND EXPEDIENT ACTION
TO CARRY OUT THE AIMS OF THIS RESOLUTION;
PROVIDING FOR THE APPROPRIATION AND ALLOCATION
OF FUNDS FOR SAID BID AWARD; AND PROVIDING FOR AN
EFFECTIVE DATE.
J, A RESOLUTION OF THE CITY COMMISSION OF THE, CITY
OF AVENTURA, FLORIDA DECLARING CERTAIN
PROPERTY LISTED UNDER THE ASSETS OF THE CITY AS
SURPLUS TO THE NEEDS OF THE CITY; DESCRIBING THE
MANNER OF DISPOSAL; AUTHORIZING THE CITY
MANAGER TO DO ALL' THINGS NECESSARY TO CARRY
OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING AN
EFFECTIVE DATE,
6. ZONING HEARINGS:
I
QUASI-JUDICIAL PUBLIC HEARINGS - Please be odvised1hal!he roIlowina items en !he C_len\..... ...
quasi-judicial in 1'llCUrt. 1f)'OU wish toobjeet or commc:nl upon III)' oflhesc ilCn'6., please inform 1hc M.)'OC' when he rcquescs
public: comments. kl opportunity for persons to spca1c on cac::b item Will be mactc available after 1hc ."plicanl and Ilafl'have
l'nadc their presentations en each i\em, AlllcslimcJ'l)'. indudm, JILIbtic: IcsIimony.and evidence, Will be made under 0IIh or
.mm.tion. Additionllly, each person who gives Icstimm)' rnI)' be IUbject to crms-cumtnation. Ir you rd,. either 10 be
CfOIS-examinc:d Of 10 be: sworn. your leSlimon)' will be liven ils due wciahL The Bcrlcral public will noI be permitted ID
cross-cxami~ wilneSScS, but the public may request Ihc C~ssitn 10 uk questions of staff or wimcsses onlhcir behlU:
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_ _ling O<pniza."", IT1JS\ pn:scnl cvidenc:< .ftheir authority to Ipeok for the orpnization. I'uJ1ba- _Is 0(
the quISi.judic:ial pnxeduna tIS)' be o*ined rrom the (.."Jck.
A, CONSIDERATION OF PROPERTY OWNER'S APPEAL OF
DENIAL OF VESTED RIGHTS UNDER MORATORIUM
ORDINANCE CONCERNING UNCOLN POINTE
DEVELOPMENT
B. A RESOLUTION OF. THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA,' APPROVING A SIGN VARIANCE
FOR WILLIAMS ISLAND PROPERTY OWNERS'
ASSOCIATION TO PERMIT EIGHT DIRECTIONAL SIGNS ON
ISLAND BOULEVARD MEASURING SIX SQUARE FEET IN
AREA, WHERE, DIRECTIONAL SIGNS MEASURING A
MAXIMUM OF FOUR SQUARE FEET ARE PERMITTED BY ,
CODE; PROVIDING AN EFFECTIVE DATE.,
'.
C. A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA, GRANTING CONDITIONAL USE
APPROVAL TO PERMIT DRY CLEANING ON PREMISES FOR
PROPERTY LOCATED AT 20708 BISCAYNE BOULEVARD,
A VENTURA; PROVIDING AN EFFECTIVE DATE.
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D. A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA, APPROVING A SIGN V ARlANCE
FOR MIAM] BEACH HEALTH CARE LTD D/B/A AVENTURA
HOSPITAL AND MEDICAL CENTER CAMPUS BUILDINGS
TO PERMIT ONE PRIMARY MONUMENT SIGN AT THE
CORNER OF THE HOSPITAL CAMPUS AT 20900 BISCAYNE
BOULEVARD' MEASURING ]8 FEET HIGH AND 148.5
SQUARE FEET IN AREA WHERE A PRIMARY MONUMENT
SIGN MEASURING 15 FEET HIGH AND 65 SQUARE FEET IN
AREA IS PERMITTED BY CODE; A SIGN VARIANCE TO
PERMIT A SECONDARY MONUMENT SIGN AT THE
COMPREHENSIVE CANCER CENTRE AT 20950 NE27 COURT
MEASURING 68 SQUARE FEET, _ WHERE SECONDARY
MONUMENT SIGNS MEASURING 6S SQUARE FEET ARE
PERMITTED BY CODE; A SIGN VARIANCE TO PERMIT A
SECOND WALL SIGN ON THE SOUTH SIDE OF THE
IAVENTURA HOSPITAL AND MEDICAL CENTER AT 20900
BISCAYNE BOULEVARD MEASURING 144 SQUARE FEET,
WHERE ONLY ONE SIGN PER ELEVATION IS PERMITTED
BY CODE; A SIGN VARIANCE TO PERMIT A SECOND WALL
SIGN ON THE EAST ELEVATION OF THE AVENTURA
PHYSICIANS BUlLDlNG AT 21800 NE 28 AVENUE
MEASURING 65 SQUARE FEET WHERE ONLY ONE SIGN
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PER ELEVATION IS PERMITTED BY CODE; PROVIDING AN
EFFECTIVE DATE.
7,
ORDINANCES: FIRST READING/PUBLIC INPUT:
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AN ORDINANCE OF THE CITY OF A VENTURA, FLORIDA;
AMENDING THE CITY CODE BV AMENDING ARTICLE VII
"CODE OF EmICS" OF CHAPTER :z "ADMINISTRATION",
BY AMENDING SECTION 2-396 "FURTHER ETlDCS
STANDARDS; PROHIBITIONS AND RESTRICTIONS" AT
PARAGRAPH ,(C) "FURTHER RESTRICTIONS ON
TRANSACTIONS" BY RENUMBERING AND REVISING
EXISTING SUBPARAGRAPlI (III) TO BE SUBPARAGRAPH (Iv)
AND' BY CREATING A NEW SUBPARAGRAPH (Hi) TO '
PROHIBIT INVOLVEMENT OF CITY PUBLIC OFFICERS AND
EMPLOYEES IN CERTAIN INVESTMENTS AND IN CERTAIN
REAL ESTATE TRANSACTIONS; AND BY CREATING
ARTICLE IX "CAMPAIGN FINANCE, RESTRICTIONS" OF
CHAPTER 2 "ADMlNISTRATION" OF THE CITY CODE, BY
CREATING SECTION 2-420 "PROHIBITED CAMPAIGN'
CONTRIBUTIONS, FROM VENDORS", TO CREATE
RESTRICTIONS UPON THE MAKING OR RECEIPT OF
POLITICAL CAMPAIGN CONTRIBUTIONS FROM OR
WHICH ARE DELIVERED, SOLICITED OR PROVIDED BY
VENDORS OF THE CITY; PROVIDING FOR DEFINITIONS;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
PENALTY; PROVIDING FOR INCLUSION IN CODE; AND
PROVIDING FOR AN EFFECTIVE DATE,
8. PUBLIC HEARING: ORDINANCES: SECOND READING: None.
9. RESOLUTIONS - PUBLIC HEARING: None
10,OTHER BUSINESS: None
11 ,PUBLIC COMMENTS
12,REPORTS
13,ADJOURNMENT
SCHEDULE OF FUTURE MEETlNGSIEVENTS
I" BUDGET PUBLIC HEARING SEPTEMBER 8, 2005
COMMISSION WORKSHOP SEPTEMBER 15,2005
2ND BUDGET PUBLIC HEARING SEPTEMBER 22, 2005
6P.M, '
10 A.M.
6 P.M.
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This mminl is open to the public. In ltCCordancc with the Americans wiOl Disabilities Act or 1990. ,U persons who are di..bled
and who need special accommodations to participlllc in thi. meetinl because or that disability should eontac:t chc OffICe or the (."k1
Clerk. 30500166-8901. ROlla.... than lWO d.yo priOt 10 luch ptoCCCding. One or ""'"' membets .fthe Cily.f Aven.... Ad"'"
Boards ~y be in attc:ndancc. Anyone wishinS to appeal any decision made by Ihc Avcntura City Commission with rapccllo all)'
IT8ttcr eonsidercd at such mcctins or hcarinS -Mil need a record of Ox: proccedinJS Ind, for such purpose. 1T18)' need to ~ 1hIt.
verbatim RlCOrd of the p~inp is made. which record includes the testimony Ind evidence upon which the appeal is 10 be
bIsed. AFndo it,... moybe viewed" the OfT.... oftheCi1)lCIetk.Ci1)l.f loven_ OovcmmentC...... 19200 W. CouaIJyClub
Dri.e, Avenlura. Florida. 33180. Anyone wishinllO obtain. copy .fony 'lend. item should contacllh, City CIat.1 J05-466.
1901.
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
A. PARTNERSHIP or PROf'ESSIONA!- ASSOCIATIONS
200 SOUTH BISCAYNE BOUL-EVAAD, SUITE 2500. MIAMI, FLORIDA 33131-153040
TELEPHONE: (305) 37+-71580 . ,.AX: (305) 374-71583
E-MAIL: IN...O..ILZIN.COM . WWW._ILZIN.C:OM
Briall S. Adler
Direct DUd: (305) 350-2351
Direct Fax: (305) 351~2206
EmaU: badlerl@bUtin.cDm
M lAM I . TALLAHASSEE
August 18, 2005
VIA HAND-DELIVERY
Eric Soroka, City Manager
City of A ventura
19200 West Country Club Drive - 5th Floor
Aventura, Florida 33180
Re: Lincoln Pointe
Notice of Appeal of Denial of Vested Rigbts
Dear Mr. Soroka:
This firm represents Shefaorffarragon, LLLP in connection with the Property located at
179 NE 31" Court, Aventura, Florida, commonly known as Lincoln Point. Please consid!:f this
our formal Notice of Appeal, pursuant to Section 4(b) of Ordinance No. 2005-07, commonly
referred to as the City of A ventura Moratorium Ordinance.
I would appreciate the City placing us in the next available agenda to be heard before the
City Commission.
Thank you for your attention to the foregoing.
v cry truly yours,
~i--.
Brian S. .JCr
BSAIka
cc:
Joanne Carr, City Planner
Claudio Stivelman
Gilbeit Benhamou
To;m Brinkley
Stanley B. Price, Esq.
MIAMI 919849.1 7592420873
138
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DETERMINATION ON VESTED RIGHTS APPLICATION
TO:
Stanley B. Price, Esquire
Bilzin Sumberg Baena ~rice & Axelrod, P.A.
200 South Biscayne Boulevard, Suite 2500
Miami, Florida 33131
RE:
June 7, 2005 Vested Rights Application (the "Application") for Lincobi
Painte (the "Property") Filed on Behalf' of Property Owner (the
"Applicant")
L
DECISION,
Pursuant to City of Aventura Ordinance No, 2005-Q7 (the "Moratorium
Ordinance" or the "Ordinance"), I have reviewed the' above-described Application
pursuant to the Moratorium Ordinance, in, accordance with Section 4 of the Ordinance,
Based iJpon the evidence submitted and the criteria set forth in .the Or~ce, I have
determined that the Applicanthas not established vested rights under Section 4(a) ana. (b)
of the Ordinance.
n. FINDINGS,'
A. Based upon the Application and the evidence submitted by the Applicant,
I find that the Applicant bas failed to demonstrate any' ~ all of the
following:
1. that, a' gove=ental act of development approval was, obtained
prior to the effective date of the Moratorium Ordinance; and
2. that upon which the Applicant has detrimentally relied in good
faith by making suCh a substantial change in position or incurring
such extensive obligations and expenses; and
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3.
that it would be highly inequitable to'deny the Applicant the right
tb complete the development
, None of these three (3) interdependent cr:iteria have been satisfied.
B. Further, without in any way limiting the basis or grounds for my decision,
I find thatthe Applic~t's attempt to rely upon the April1, 2004 letter'of
the City, which is attached as Exhibit " A" of the Application; as bc~ a
governmental act of development approval, is misplaced: To the contrary, ,
I find that tqe letter of April 7, 2004 is simply a routine confirmation of '
the then existing zoning and does not in any' 'way constifute 'a
.'-"
, governmental act of development approval by the City.
m. MORATORIUM CONTINUES TO APPLY,
As a result of my decision that the Applicant has not established vested rights purSulint to
the Moratorium Ordinance, please be advised that the: moratorium imposed. by the
Ord!nance continues to apply to the Property.
IV. RIGHT OF APPEAL.
Jv.[y decision as City Manager is subject to 'appeal by the Applicant to the City
, .
Commission by Notice of Appeal filed with me within ten (10) clays after the date oftbis
written decision. Please be advised that in the event of a lim;e1y appeal, thC City
Commission shall hold a public hearing on the appeal pursuant to, City Code SCction 31 ~
71 and City Code Section 34-31" et. seq.; and based upon the evidence submitted' shall
make a determination as to whether or not the Applicant has established vested rights. To
the extent that the City Commission, upon any such, appeal, determines that the Applicant
demonstrates vested rights, the Moratorium Ordinance shall not be applied.
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v. WAIVER.
Additionally, please be, advised that pursuant to Section 3 "Waivers" of the
Ordinance, the Applicant may apply to the City Commission for a waiver of the
moratorium. If you desire to pursue such waiver, it is first .necessary that the City's'
app.lication form be, completed and submitted to the City's Coriununity Development
Department for'processing.
PLEASE GOVERN YOURSELF ACCORDINGLY.
Executed this,l'Ith day of August, 2005.
. ,
, CITY OF A VENTURA
By:
esa sorMc
proved ~ and legal sufficiency:
N~
, City Attorney
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Eric M. Soroka
City Manager
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CERTIFICATE OF SERVICE
, ,
I HEREBY CERTIFY that a true ~d correct copy of the above and foregoing'
-Determination on Vested Rights Application was' furnished, by U.S; Mail, postage
prepaid addressed to Stanley B. Price, Esq" Bilzin Sumberg Baena Price & Axelrod,
P A; 200 South Biscayne Boulevard, Suite 2500, Miami, Florida 33131 and that a copy'
was faxed t~ Mr. Price !it (305) 350-2204, this ~y of Au~2005.
, ( l k" :
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the office of the City Clerk of the City of Aventura
Cc:
City Attorney
Joanne Carr, Planning Director
erk:
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08/30/2005 16:35
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3054663277
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CITY CF AIIENTTRA
PAGE 01/02'
O' CITY OF AVENTURA
~ NOTICE Of DEVELOPMENT
',:.....~ PERMIT AND DEVELOPMENT
ORDER MORATORIUM '
""'" ~ - ond.......,.... ,--..., "'!Itf Ia,
lIllI5:" ,
Public Notice I.! hetuby given lhallhe City of AVenUJra CIty
~mls:iion win meet in a publle heartno on TueBday. Jun.
7, 2005 at 6:00 p.m. to QlhSider Iinel adoption of Ill.
foIlllWfng Ordinance;
AN ORblNANCE OF THE CITY OF AIlEIiTlIRA,
flDRIDA (THe, .em"). PROVIDING FOR
IMPOSnJON OF A MORATORIUM ON ISSUANCE OF
DEVELOPMENT ORDERS AIIO DEVELOPMENT
PERM/1l. WI11lIN THE em CONCERNING
, IlEVfl:OPMENT WIlieR IS PROPOSED ON PROPfIITY
l.DCJ\TED EAST Of BISCAYNE BOUlEVARD WITHIN
ANY RESIOENTlAI. OR COMMERCIAL ZONING
DISlllICTS OF THE CITY; PROVIDING FOR WAIVER,
VESTED RIGH'IS, APPEALS, EXIIAUSTION OF
AOMIIUSTllATIYE REMElJIES, APPlICABlUTY,.
SEVERABIUTl; AND PROVIDING FOR AN El'FEC11VE
DATE: . . '
(se. map below' lot $ubject ."'" which 18 bounlled ll'1
Biscayne BouIovonl On the west 8IIl by the City Dmil$ on
the IlOI1h, toull1l1Ml 8BSt) ,
TIle Public HeIlring wm be held at City 01 Aventuro
Government Cenler, 19200 West Counlry Club Drive,
Aventul1l, Florida, 33180. The pruPOSed Ord'lIIance may
be Inspected by the public at the Ofllce oIlI1e CIty CIeI1c,
t9200 Welt Counlly 0141 Drive, Aventura, Florida.
Intmsted p;rtie. may appear at !he Public Hearing and be
heW willi I1specl 10 IIle prlljlll!lell Ordlnance.
In IlCcOrdance with the Amertcans with DI$lbflltles /v;I <<
1990, en persona who 11ft d'.sabled aml who need special
eccornmod.Uona to oartidpalt i'1 Uris proceeding becauso
of that disabnlty ahouId contact the OlrlCa 01 the CIty Clerl<.
(305) 466-8901, dOllalar Ihan two business days PIlot to
suchprnc:aedings.
" a peraatl decides 10 appeol any decision made by !he City
Commission with tespecl to any matter considered at a
I'IIBtlting or hearing" thet person wlft need a I1COrd of the
plOceedings and, lor such purpose, may need Ie ensure
that a .....batim record of the proceedings is mada, which
retalI incIudtls the testimony ancl eviaence UpOn which the
eppnl isla be besecl.
Teresa M, So.o..., CMC, CIty C1etk
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3.054663277
CITY CF AVENTTRA
PAGE 02/02
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l!tht :mmamimtrat~ _
Puhlished Dailv
MlAMI,PLORIDA
&1'ATEOFFLORIDA
COUNTY OF DADE
Before !he undersigned authority personally appeared:
MARIA ANGEL
Who on oath !hat she is
ADVERTISING OFFICE MANAGER
Of the Miami Herod Publishing Company, a daily newspaper at Miarolln Dade County,
Florida; that the advertisement for.
~j b.t of AlIentuiV-
was published in said newspaper in the issUe of: .
fllio.-n; Herolc~ fno.L{ I~) ~oo5
Affiant further says that the Miami Hereld is a newspaper published at Miami, in the u1d
. Dade County, Florida, and Ih.a.t the said newspaper bas heretofore been continuously
published in said Dade County, Florida, each day IIId bas been entered as -=cnd clllSS
mail matter at the post office in Miami, in said Dade County, Florida, for a period of one
year nelt pxeceding tbe first publication of the attached copy of advertisement. .
~ANO:- D
Sworn to and subscribed before me
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USAANNHERNAND .
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A.D. 2005
UM
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900 West 49110 Stlftl, SuI" soo. HlIlooh, FL330U
J,w,'Il..;..rU.].H1rl
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BIL:llN SUMBERG SAENA ~RICE & AXELROD LLP
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~ P.....TNE"SHI~ 0,. PRO'EasIONAL ASSOCI..."ONS
aoo $OUTH BISCAYNE BOULEVARD. SUITE &tK)O.. MIAMI, FLORIDA a3131-S3~
TELE~HONE: (305) 37.......7S~O .. "AX: (305) 374-7!583
E-MAIL: INP'OOBILZlN.COM . WWW.8ILZIt4.CON
loll IAN I . TALLAHASSEE
. SIoIq J/. Pri<t, P.A-
DI.." Dlok 30S/S5~74
DlNa PII%: JtJSlnH
.....0: ..~n"'lI.emJI
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J\U1c 8, 2005
VIA HAND DEUVERY
Erie Soroka, City Manager
City of Aventura
Government Center
19200 W. Co\U1try Club Drive
Aventura, Florida 33180
R,e: Vested Rights Submittal - Lincoln Pointe
Dear Mr. Soroka:
Please find cnelosed three copies of our vested rights submittal for the Lincoln Pointe
property.
Please advise us at your earliest convenience regarding any filing fee that may be
associated with this submittal.
Respectfully youri,
%
Stanley .
SBPII'RG/eo
Enelosure
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SMnky B. Price, P.A.
DIndDial: 3051350-2374
DInd FlU: 30512204
s..-.U: sprlu@blhJn.com
June 7, 2005
Eric Soroka, City Manager
City of Aventura
Government Center
19200 W. Country Club Drive
Aventura, Florida 33180
Re: Vested Rights Submittal- Lincoln Pointe
Dear Mr. Manager:
This firm represents the owner ("Applicant") of the property known as Lincoln Pointe
("Property") in connection with a pending application for administrative site plan approval
("Application"). Pursuantto Section 4 ("Vested Rights") of the City's recently enacted
moratorium Ordinance No. 2005- ("Ordinance"), Applicant respectfully submits this
application for a vested rights determination. In fue alternative, Applicant requests a waiver
pursuant to the provisions of Section 3 of the Ordinance.
. Section 4 of the Ordinance in effect incorporates the well-established legal doctrine of
equitable estoppel. I Under Florida law a property owner can demonstrate that the government is
equitably estopped from denying those rights where a property owner has (1) relied in good
faith; (2) upon some act or omission of government; and (3) has made such a substantial charige
in position or has. incurred. such extensive obligations. that it would be highly inequitable .and
unjust to destroy the property owner's rights. Hollywood Beach Hotel Co. v. City of Hollywood
Beach, 329 So. 2d 10, 15-16 (FIa. 19'76). .
We respectfully submit that each and every element of the doctrine of equitable estoppel
. is applicable to the Application and that the subject application for a vested rights determination
should be approved. It is further submitted that the City has intentionally delayed the
administrative approval of the Application and that it would be highly inequitable and unjust to
permit the City to benefit from such inappropriate activities.
A. The.Property and Proposed Redevelopment
I The Doctrine of Equitable Estoppel has a different legal standard than a vested rights detennination. The City has
elected to utilize the equitable estoppcl standard.
MlAM1887170.2 7592420873
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Eric Soroka, City Manager
June 7, 2005 .
Page 2
The Lincoln Pointe Property (the "Property") consists of approximately 8.77 +/- acres
located at 17900 N.W. 31" Court in the City of Aventura. The Property is zoned RMF4 and is
designated Medium-High Density in the City's Comprehensive Plan. . The zoning and .land USe
designationS authorize development of the Property af up to 60 dwelling units per acre, and
therefore, based on the size of the site, would p=it development of 526 residential dwelling
units. Further, the RMF4 zoning district allows development of up to 40 stories and 400 feet
The proposed redevelopment does not require any variances, the Application meets the City's
Code in. all relevant respects, and the legal and factual .circumstances satisfy the criteria of
Section 4(A) of City ordinance No. 2005-
B. History of Property.
The Property is located a~ the southern portion of Admiral's Port to the west of Williams
Island. The Property represents Tract D of Admiral's Port; The Property was approved for
development.in 1968 along with Tracts C and F ()f Admiral's Port,. the latter tracts being
generally known as Biscayne Cove. The Property was .Iocated within the jurisdictional
boundaries of umncorporated Dade County at that time and was zoned RU-4A in.accordance
with the provisions of the Code of Metropolitan DadeColinty? Lincoln Pointe was constructed
in 1991.. .
Lincoln Pointe was developed pursuant to a zoning approval granted in 1968 under
Resolution No. Z-267-68.3 Resolution No. Z-267-68 rezoned a substantial portion of what now
comprises the City of A ventura. This resolution covered jroperties east of Biscayne Boulevard
from Northeast 163n1 Street on the south, to Northeast 215 Street on the north. . ..
Under the RU-4A zoning district, actual density liVas permitted at up to 67 units peracrc:
based on the square footage of the proposed condominiums. Accordingly, under the prior Dade
County Code, the Property was approved to be developed with 659 units. .
C.. Property owner's good faith reliance on City's acts and .omissions, and
substantial monetary expenditures incurred as a result thereof.
As the City is aware, beginning in March and April, 2004, the Applicant approached the
City regarding the potential redevelopment of the Property. At that time, the City issued an April
7, 2004, letter, attached hereto as Exhibit A, advising that the Property could be redeveloped in
accordance with City requirements at a density of 60 units per acre for a total of 526 units.
2 The RU-4A zoning ordinance was adopted in 1957. See nade County Ordinance No. 57-19. . .
. 'As discussed at greater length in Paragraph D, said zoning resolution approved a series of private roads, driveways
and accessways. .
M1AMI 887170.2 7592420873
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Eric Soroka, City Manager
June 7, 2005.
Page 3
In reliance on the zoning of the Property and the City's letter, in August 2004, the
Applicant obtainCd financing,4 acquired the Property for $41,000,000.00 and embarked on the
preparation of the site plan. Accompanied by counsel, Applicant then met with the City. on
numerous occasions and presented various draft site plans for the City's review. Ultimately,asa.
. result of those pre-filing meetings and discussions, our office filed a formal Application for Site
Plan Approval with the City, on December 14, 2004. Thereafter, after meeting again on
numerous occasions with City staff betwce.en December of 2004 and mid-February of 2005,
Applicant, through its architects, modified the proposed plans. Our office submitted a
Supplemental Letter of Intent on February 16, 2005.
In preparing the Application and the requested modifications to . the Application, .
Applicant necessarily expended substantial financial resources and likewise incurred substantial
finaIl(;iallosses. For example, among other expenditures, our. client obtained surveys and site
plans, hired architects, engineers, surveyors, and other professionals, and pmd the City's filing
fee.s These reliance-expenditures alone, set forth in Exhibit C, constitute a.monetary outlay of
approximately $1,630,299.22. Moreover, in reliance upon the City's acts and representations
Applicant began vacating (i.e., not renewing viable leases) units in anticipation of the site plan
application approval and eventual redevelopment of the Property. This activity by itself has
caused Applicant to incur approximately $868,126 in vacancy losses - See Exhibit D, attached
hereto. Further, the City's continued acts of bad faith and unreasonable delays with regard to the
processing of the Application have increased the Applicant's financial expenditures and losses.
D. City's acts, omissions, and unreasonable delays
· See Affidavits of James M Cauley, Jacques aaudio Stivelman, and Gilbert BeDhamou, which conclusively
establish that each relied, in part, upon the City's April 7,2004, correspondenee for pwposes of evaluating whether
the redevelopment of the Lincoln Pointe Property constituted a viable economic decision.
5 Exlnbit C, attached hereto, sets forth pertinent exp;"'ditures which include, among others: (i) Sieger Suarez
. Architectural, 9/23/04 - 05/0212005 at approximately $31,556.64; (ii) Architectural Allianee Landscape Fee,
11/05/2004 & 1211412004 at approximately $10,023.03; (iii) hiterior Design Fee, 1II0512oo4.at $10,000.00; (iv)
Survey Fee, 913012004 & 5/01/2005 at approximately $9,953.80; (v) Fortin Leavy, Skiles, Inc. Surveying,
1111012004 - 12/0912004 .at approximately $2,076.31; (vi) Traffic Engineer, 05/0112005 at approximately
$4,202.05; (vii) Property Inspections, 913012004 & 11/0512004 at $2,000,00; (viii) Other Consultants Fees;
09/08/2004 ~ 1110512004 at approximately $26, 831.81; (ix) Patriot Surveying and Mapping; 1011112004 &
0210112005 at approximately 6,980.00; (x) City of Aventura Application Fee, 12114/2004 at $3,377.00; (x) Legal
Fees, 04/2212004 -03/1512005 at approximately $91, 794.13; (xi) GFA International Asbestos Testing, 10131/2004,
at $1,400.00; and, (xii) Lender Interest, 09130/2004 - 0413012005 at approximately $1,430,104.45. Approximate
Total = $1,630;299.22
MIAMI 887170.2 7592420873
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Eric Soroka, City Manager
Juile 7, 200S
Page 4
The City is acting, and has been acting, in bad faith manufacturing reasons to delay oui'
client's proposed project.6 For instance, in late January or early February of 200S, the City
advised for the first time (regarding an issue that was never raised during prior meetings with the
City when the original revisions of the site plan were shown to the City for review) that the
Property's entrance drive must conform to current City standards in order to issue site plan .
approval on the property. This is despite the fact that the entrance drive is a private driveway, it
is not a public road, it is owned by unrelated private parties, it is not a part of the application,
and it is a previously platted, separate grandfathered parcel.' In addition, subsequent to. our
office's February 16, 2005, Supplemental Letter of Intent. submittal, the City advised that the
Property.is subject to "zoning in progress" as it relates to parking garages, and, therefore, the
application could not be processed. Nearly a month and halflater, after contipued delay, the City
receded from its assertion regarding parking garages in an April 14, 2005, letter, attached hereto.
as Exhibit F. Finally, our repeated requests to obtain copies of the City's police and traffic
review (required for our client's application to proceed) were not made available until mid-May,
2005.8 .We are not aware of any other project that was not furnished a timely response :from the
City's .very capable Police Department.
In addition to the foregoing, the. City has now sought to impose an additional "zoning in
progress". as to all redevelopment plans in the City. We have previously filed a letter of
objection with the City (attacbed hereto as ExhIbit II) asserting that said attempt to impose
"zoning in progress" violates the law and fails to give any ascertainable standards on which a
reasonable person can make judgments or base his OTher actions. Said attempt at "zoning in.
progress" creates a de facto moratorium that is not authorized by law and has not been properly
adopted by the City, thereby violating Constitutional principles of Due Process.
E. Conclusion
· See correspondence from oUr office to the City, attached hereto as Exhibit E, which summarizes the City's
numerous attempts to delay approval of our client's site plan application..
7 Pursuant to Dade County Zoning Resolution Z-267-68 adopted on October 17,1968, all streets and accessways (all
which were private in ownership) were approved, subject to recordable agreement providing for permanent and safe
. access for pedestrian and vehicular traffic within the. development This recordable agreement bas governed the
development of all the lands now known as Williams Island, Atlas Terminal, .Lincoln Pointe, and other existing
developments, covered by the 1968 Resolution. In fact, the 1968 Zoning Resolution specifically creates approval of
. all private roads within the development including the subject accessway. As such, said approval c1early.falls within .
the defmition of a non-conforming use under Article XII of the City's Land Development Regulations. Therefore,
the private accessway may be continued as provided by.Sec. 33-271 of the City's Land Development Regulations.
· We note that when the traffic review (attached hereto as Exhibii G) was finally made available, it demonstrated
that based on the "traffic-related impacts associated with development of526 condominium units" on the Property, .
our elient's "conservative study... shows the traffic signal studied currently operates at Level of Service 'e and is
expected to continue to operate within these parameters upon buildout of the Lincoln Pointe redevelopment."
MIAMI 887170.27592420873
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Eric Soroka, City Manager
June 7, 2005 .
Page 5
In Town of Largo v. Imperial Homes Corporation, 309 So. 2d 571 (Fla. 2d DCA 1975),
the property owner relied on the existing zoning classification in acquiring land and preparing a
development plan: The property owner had expended $310,000 for land acquisition and $69,000
in architectural fees, interest, taxes, sewer permits and development costs when it first received
notice that the Town was contemplating a change in zoning. The court held that the Town was
equitably estopped from denying the property owner its right to use its land as it intended. The .
Court held that the property owner's reliance on the existing zoning was justified,
notwithstanding the fact that the property .owner had not obtained a building permit, nor had
physical changes been made to the land. The court rejected the Town's argument that the
property owner's reliance was not justified because there was "zoning in progress." To the
contrary, th.e court found that the property owner had relied in good faith on. the existing zoning
and incurred substantial expenditures before the Town gave notice that it was contemplating
changes. ..
Similarly; in this case, the Applicant relied in good faith on the existing zoning and the .
City's letter of April 7, 2004. Applicant acquired the .Property in August, 2004, and incurred
substantial expenditures in the ensuing months. The City did not initiate its various attempts to
invoke. "zoning. in progress" or otherwise thwart the development process until after the
Applicant submitted the Application. On the basis of the Imperial Homes case and other Florida
precedents, therefore, Applicant is entitled to a determination of ve.sted rights and the City is
equitably estopped to deny those rights.
Accordingly, . we respectfully suggest that the doctrine of equitable estoppel clearly
provides that the Application is not. subject to the subsequently enacted moratorium, that
Applicant is entitled to a determination of vested rights and that the Application should be
granted.
SBPrrRG/mp
Enclosure
MIAMI 887170.2 7592420873
Respectfully yours,
Stanley B. Price
150
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A ventura
Governmenr Center.
19200 West Country Club Drive
Aventura, Florida 33180
J-M. Puu
MAY
April 7, 2004
CoJoOlISSJqNI
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BoB 0.-:
HAuv Hot.ZBl
MANNY Oaos
Via Facsimile (3051351-2206 and ReQular U.S. Mail
Mr: Brian AcI1er
Attorney at law
BilzinSumberg Dunn Price & Axelrod llP
2500 First Union Financial Center
Miami, Florida 33131-2336
Eax: M. So..
Qry MAIW
Re: Lincoln Pointe Apartments
17900 NE 31 Court, Aventura
Folio Number 28-2210-050-0020
Dear Sir:
Further to my letter of March 11, 2004 addressed to Mr. Claudio Stivelman and
your letter in response dated March 31, 2004, this is to advise that I have
reviewed your letter and its attachments with the City Attorney. Based on the
research of County records that you have presented, it appears that the Biscayne
. Cove development on Tracts C and F of the Plat of Admiral's Point Section One.
did not use any density from the Lincoln Point development site on Tract F of that
plat. .
Redeveiopment of the, Lincoin Pointe property would be subject to the City's
Land Development Regulations. The property is located in the RMF4. zoning.
district which allows a maximum of 60 dwelling units per acre. Based on the lot
area of 8.769 acres in the Miami-Dade Property Appraiser's records, a maximum
of 526 units may be permitted. This number of units is subject to confirmation of
the lot area by survey and opinion of title and is further subject to all. si.te .
development criteria of the RMF4 zoning district and other applicable sections of
the City's land Development Regulations.
PHONE: 305-466-8900 . FAX: 305-466-8939
www.cityofaventura.com
151
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Please be advised that additional use and site restrictions may be in force as a
result of Miami-Dade County or City of Aventura legislative resolutions, restrictive
covenants, platting or site plan approval conditions, .
Joanne Carr, AICP
Planning Director
C.C.: Eric M. Soroka, ICMA-CM
City Manager
David Wolpin, Esq., City Attorney
152
AFFIDAVIT OF JAMES M CAULEY. JR.
~
STATE OF FLORIDA
)
) ss:
)
COUNTY OF BROW ARD
Before me, the undersigned authority duly authorized to take oath in this State and
County stated above, this day personally appeared JAMES MCAULEY, JR., who has
been first duly sworn, deposes and says:
I. My name is JAMES M CAULEY, JR., I am over eighteen (18) years of
age and have personal knowledge of the facts contained herein.
2. I am the President of Tarragon South Development Corp. ("Tarragon").
3. buring the Spring of 2004, Shefaor Development, LLC ("Shefaor")
provided Tarragon information relating to a potential joint venture redevelopment of the
Lincoln Pointe property located at 17900 N .E. 31't Court, A ventura, Florida ("Property").
4. As part of examining the joint venture redevelopment of the Property,
Tarragon began meeting with the City of Aventura officials in May of 2004, to confirm
both the existing zoning on the Property and the details of an April 7, 2004, letter from
Ms. Joanne Carr to Mr. Brian Adler, attached as Exhibit "A".
-I
5. Tarragon relied on the City's representations regarding the letter
referenced in paragraph 4 and in subsequent meetings with City Staff before deciding to
invest in the Property and entering into the August 19,2004, Shefaorrrarragon LLLP,
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing with
EuroHypo AG ("Mortgage") for the Property, the Mortgage being recorded in Official
Records Book 22595 at page 4035 of the Public Records of Miami-Dade County,
Florida Further, Tarragon continued to rely upon the City's representationS while
preparing and revising the site plan for the redevelopment of the Property.
FURTHER AFFIANT SA YETH NA
STATE OF FLORIDA )
)SS:
COUNTY OF BROW ARD . )
-I
:r.e foregoing instrument was acknowledged before me this --'- day of .
U IUt- . .2005, JAMES MCAULEY, JR:, who is personally known
to me or who has produced a Florida driver's licens 1identifi ation. C1w ~
SOL:.RY Pt."BUC.51.1JI Of n.oiID.~ . .
~ Carolina Cordoba .0..
. Commission #D0409383 Name: ( ,.J,.. ~ D
IrplreI: MAR. 21, 2009 C .. N \:>"b CLOq .... c. 3-
..,ndKnr>AlIaatlclodln,c:c.,lnc. OImmSSlon 0.: ~ ()
Notary Public, State of Florida
My Commis~ion Expires:
MIAMI 896340.17592420873
153
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~un-07-05 11:57u FrOll-Bllzin
305 375 6146
T-124 P.002/003 F-020
AFFIDAVIT OF .lAC DES CL
STATE OF FLORIDA )
) ss:
COUNTY OF BROW ARD )
IO STlVELMAN
Before me, the undersigned authority duly a
County stated above, this day personally appeared JA
has been first duly sworn, deposes and says:
1. My name is JACQUES CLAUDIO S
of age and have personal knowledge of the facl$ contain
orized to take oath in this State and
QUES CLAUDIO STIvELMAN,. who .
2. I am the President of Shefaor Developm 1, LLC ("Shefaor").
3. During the Spring of 2004, Shefaor De elopment, Ltc ("Shefaor") approached
the City of Aventura ("City") regarding the potenti redevelopment of the Uncoln Pointe
property located at 17900 N.E. 31s' CoUrt, A ventura, Flo . da ("PrOpeny').
4. . A$ part of examining tbe potential for viable redevelopment of the Property,
Shefaor continued meeting with the City officials throu out the Spring and Summer of 2004 to .
confirm both the existing zoning on the Property and th details of an April 7, 2004, letter from
Ms. Joanne Carr to Mr. Brian Adler, attached as Exhibit A".
5. tntimately, Shefaor. relied on the Ci representations regarding the Jetter
referenced in paragraph 4 before it entered into the Au t 19,2004, Shefaortrarragon i.LLP,
Mortgage, Assignment of Leases and Renl$, Securi Agreement and FiXture Filing. with
EuroHypo AG ("Mortgage") for the Property, the Mort ge being recorded in Official ReCords
Book 22595 at page 4035 of the Public Records of 'ami-Dade County, Florida. Further,
throughout 2004 and 2005, Shefaor continued tQ rely upon the City's representations while
preparing and revising the site plan for the redevelopmen of the Property.
FURTIIER AFFIANT SA YETII NAUG
STATE OF FLORIDA
JACQUES
STlVELMAN
COUNTY OF BROW ARD
)
) S5: CS':\" 1:2-
)
The foregOing instrument was acknowledged
, 2005, CLAUDIO STIVElMAN., who is p
a Florida drivers license as identification.
~'I::>.. lilADYS OTERO
W~'j.':",}' MY COMMISSION 100178114
"\1' . : EXPIRES: January 15, 2007
....'<ill _llw....,""""""""""
...,.
me this-2- daYOf~
lly known .to me or who has produced
MIAMI 896429.1 7592420873
154
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Jun-OT-G511 :5Tu Froi-Billln
305 3T5 6146
T-124 P.003/003 F-020
My Commission Expires:
Notary Pu lie, Sto.te ofl'torida
\7~53O\18S4S\ 11638634 v I
611105 1I"~ AM
MIAMI 896429.1 7S92420873
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AFFIDAVIT OF GILBERT BENHAMOU
STATE OF FLORIDA
)
) SS:
) .
..
COUNTY OF BROW ARD
Before me, the undersigned authority dUly authorized to take oath in this State and
County stated above, this day personally appeared GILBERT BENHAMOU, who has been first
duly sworn, deposes and says:
1. My name is GILBERT BENHAMOU, I am over eighteen (18) years of age and
have personal knowledge of the facts contained herein.
2. I am the CEO of Shefaor Development, LLC ("Shefaor").
3. During the Spring of 2004, Shefaor Devi:1opment, LLC ("Shefaor") approached
the City of Aventura ("City") regarding the potential redevelopment of the Lincoln Pointe
property located at 17900 N.E. 3151 Court, A ventura, Florida ("Property").
4. kl part of examining the potential for a viable redevelopment of the Property,
Shefaor continued meeting with the City officials throughout the Spring and Summer of 2004 to
confiim both the existing zoning on the Property and the details of an April 7, 2004, letter from
Ms. Joanne Carr to Mr. Brian Adler, attached as Exhibit" A".
S.Shefaor relied on the City's representations regarding the letter referenced in
paragraph 4 before it entered . into the August 19, 2004, Shefaorrrarragon LLLP, Mortgage,
klsignment of Leases and Rents, Security Agreement and Fixture Filing with EuroHypo AG
("Mortgage") for the Property, the Mortgage being recorded in Official Records Book 22595 at
page 4035 of the Public Records of Miami-Dade County, Florida. Further, throughout 2004 and
2005, Shefaor continued to rely upon the City's representations while preparing and revising the
site plan for the redevelopment of the Property.
FURTHER AFFIANT SA YETI! NAUGHT.
,
GILBERT B
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI-DADE )
o~e me this (P day of -1~
ly known to me or wh as produced a
The foregoing instrument was acknowledged b
. . 2005, GILBERT BENHAMOU, who is pers
Florida driver's license as identification.
~""'''' QL-\DYS OTERO
tr':b.-".:. MY COMMISSION I 00178114
~~%l EXPIRES: January 15, 2007
~~:m;t..~- BondIdThruNrAllyNllcI.kdlrwltllrl
Name:
Commis ion No.:
Notary P blic, State of Florida
My Commission Expires:
MlAM1896767.\ 7592420873
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Ullalf1VU'fl-002
lSlla.r.I Uac.s.. ~
c.-. MIAq_t Total
T.....t... ClPL1_ln Pta-U52
T...fUc SDtllllU 'total
....part tar s.n Caad ar I'...put
a. CaIlU 'S'r....t.&'.... 10/D4
s-p.cU.... 'oul
'&'I..r:...C1PL1"coa1.I> ......1152
un.rur
Un-M4U
,bwIUI2-M44'
'....wllISI.".'
h.ctil\9/'roc:...i...'atd
m.eu or 'oareu.lt Coati - U
05-12__
-,
-.
1..lto.l00." .JC ".
I.HO.DOO._ .JC 1n
41.ooD.l.....,..
....:I1..111CN
....201-.2..4
1.111.41 .. 4111 U..J1-1104
2.S1!..OO .. "" .U-21-It04
1.4n.u.
'.'21.n .. "" .itoll"21G1
S.I'I.M .. ".. ......ato.
I."S.'" .. 20..' 11___11G4
I.'U.U .. .... 11-....1_
I.no.u .. .... 11-H-lto.
..no.a. >> .... 11-....2104
20."20."- >> .... U-H-IH4
S.'S:I.1I- AI' .... U___1104
I..H.IS .. '12' u-n-I'"
11.1,"..,. AI' .... P-l000l00t
. ',ns." .. IOn DS-ll-IOO&.
...,......U IOn ....1I~1..
:111........
SU.I' .. .... lI-n-l"'.
Ul." .. IOn U-12-200s
In...... >> .... ....11-1001
lu,.n.
140..' .. . "1' ....st-11IlN
u'.n .. ... 01-10-1...
'I,.U .. ,... 11-st-20IM
1".1.:1 .. ".. q...Q-IIU
'.n .. .... 11.....-2...
.... .. 141. 11.....-1...
.... .. .... 11.......IDlI4
112.aD .. .... U.......IDlM
12.'1 .. .... 11......1004
121." .. .... 11-.....1004
~.u-.... .... 11......1004
111.... AI" .... 11......1004
n.TS- AI' .... 11-&-1014
12.11 .. S413. H-G1-aOl$
1.SU.1'"
11.0H.DD .. n.. D-Q1"10I5
1..00.01 .. IOn 010-11..1001
1.100.00- .... '"' 11-12-aOOI
11..G.00-
lst.OD .. ..., ."'11-100'
'1.00 .. ..n Di-lI-aDOS
"71.00- AP ..n o-lI-IOOS
lU..... AI' IOn ....1I..IOOS
....
a.DOD.. .. .... 1~ll.'0M
1.00000.OJ .. .12. u-n-I".
10.OZJ..S.
10.001.. .. .... l"SI-IOO.
11.toO.GO'"
..l2.... .. ... 0I-1...a004
2SJ.I' .. ".. II-Ol.IOOS
..nl.l.
1.u.s.oo .. '"' ....1I-1.S
1.05....... ..... OI-U..l101
....
15.... .. .... 12-11-100.
uS'.n .. ".. u.n.llI.
1.1U." ". .141 ~I"'III.
2..,1.11.
2,.00... .. 441. I1-U-l111
IU.SO .. .... l1-o:1-aOOI
".00 .. .... ""1-1~1lI
:I,J:r7.H-
..202." .. "" .ll..aOOl
4,101.S...
S.OOO.1O .. ... Ofo.JO-l004
1.000..... .x: '12' 1"'11-1004
1,000.00-
211.n.JC n04
H-OI-IOOI
41..00 U U07
all.1O U U07
111.10- U . SIlO'
451.00->> 'lien
010-12-1001
.U-2001
05-12_looS
01-12-1001
111."-
I,U3.11 o1C '11
DI-Sl-loo4
,........~I...
.aa...1.... J.IalCUI "%IS
S!!
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l!!.!!
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!IE!
1-M--tDD CeMu1t..~
1M-O...U04.Je ...t
,.......2.4 .Je ...t
........1-;1..4 .a:: ...t
11......2..4 .a:: ...t
. 1...1...2104>> ...t
CII U"D-lIll14,. ...t.
. 11.....ID04,. ...t.
l.......DO c..- ~_
CII la-naID04>> ...,
. 1...U..1104......'
. 1...n"11D4. ..n
CI a...l"ZIOI AI' ...t ,
1.~ JilIIpU_Q_ & Ilppll"...u r_.
.. U..l....2104>> c.1t.
. u-a.lllM>> ...t.
.. 11-14-2104'" ...t.
. 12-14..1104>> ..It.
l-D1-1..aac:
o '11-1'-:2D04>> ...t
o 11-1"'1104 >> ...t
o 11-2"'2104 >> ...t
o 11..1....2104 >> ...t
o 11-11-200" AI' ...,
1...,..... Ll.o__. h""uI:bIpact.-ocIIu
o .....S0-2..4.JC: ..."
1"01-010 "'11
o M-01-2IOS .JC _"
(II "-22-2004",_...
1-0"'0" 'r & I:
o .....01-21D4.JC...t
. 11-0-2104 ill: _t
:a......lI0Mlc.,t..lrWer
. 0...01-2104.JC_t
~'.'. .c...Dewu.,....' CH~
~0..2004.x:_t
. 10 Laad
. .....22a2104>>...t
III I14-Z2.2'04JU1_.t
.O.....2105>>_t
l-....DSCl.U..JIIpp~.1a
o ......1-ZI05.x:_
.
.
n-lfoaae.5 AI' _t
Ualfoa21OSJUI_t
1-0.-1" CIoII~cnc
o 11-0...10.. .x IOIt
1-....200~
.ll-'''21O&JUI_t
. 01..U..lIllSJUI_.t
1-0..... Alb-.ta. T..tuII
. . '''')1.2104 >> _
l-ot-IO' "1I.c ".bU...
. ....S..2104.x_t
1-0...."' ....d And Aoreoo_~
o 10-12-1104>>_1t
o O.......ZDO...x:_t
. 11-"'2104 tJC _t
. U-Ol.200,,>>_t
. DlI-1'-21D$JUI_t.
1"u.-otl4 1004 .. T..
o 01-:11-2104 .x _t
. 11-22-2104>>_t
1-1....010c-rual.l'Dpa&'tJ
all 11"22-2104>>_t.
~'N"""""'"
..I_.0....:n.2OD4.JCCClCC
t"I)-lOO r.111MCi.ft9 r_
o O.-:I1-2004.7C_.t
o 01"01-2005 JC ca.t
o 0i-01-200ltJCcoct
---Y'- ~'
Wt "'tl' Ot-O...2005
.-.
Dclcri.DUOfl
....Ml.Ml ....It' COMtilt X.:
!lpIMl1alt'DJ"_liJlt
DlC-lllu.... ~.DC.I..te.
Pau:t.et ....rMrt... .. Mappt....
"ubt IuorMJ1., .. Mapp1..
PaU1.et.. .......J1IItI... Mapp1D9
"t.c.1.c ......J1III .. Mapping
M1......c-t'
C1tJ.CIiInM.III'I
C1t.,.1 JW.tm
ettJd"""'~..n
Ml-.-Dadc c..tJ
M1.m"DU1 C-tJ
1I1.m-DHD Cooat.J
M1.-1-o.da Ceuty
M1..u.-Dadac:.-1:J
ra-...-.c.. "d._, I 1tlcat.1l. "'
r~CI,'.d,"'.I"nd.Il.1'A
.nlDDec....d_. I ItIl'Dt.k. I'A
aI'DII4....Ca~a1
.1b1.a......q.._.
.:11&.111I ........ "ana
8cead ... Ca..al
koIcI....ea..al
lID. %IIlI'I:INld'lCIML
1I.chorri......
1I........McC1..llJ.Itll.t.h.
1l........McCl...llJ.~'t.Il..
... CDuat)' Tn Call_tol
lti.n.io.clltT..eollact.llc
158
X._1,="
N-201
1501
0I!2...10/Z!l
m
m
'"
'"
11140"
12140..
121404
U1404
UU04-A
11210'-.
1U.0.....
112.04-.
112".....
DU204
OU204
042204
5..301
".u
IJU3
1..1U
S.UI'
""2'
nUli
l1D104
,'21'11
u.2004~Uli2
.nOO...UI2
ill: ..U.1.. "" tlllll
f&'lnMcUDD t..ypo. 1Ilclud..h
...u
!!!!!I.
~ m!!!:e
~
Di.U .t "'ull1t Coau - lot
Di.u ot ......ll1t Coau - lot
lIt..u ot ....c...1t c.ou - lot
a. Co.IU TC.....t.cnod 10104
15$2-ColU..lu..u
n~-l"pKU'D
UU-Caloall1UIIU
c...liltcaU-otHc TDul
U5I"PI,,'040'.0U
11I..,11552-'co)10..0.-0Ili
.UI1-....).04D..Olloli
UI2_'I'D),D401_0Sl
CDMo ~U TDul
UU~l1cau...r..
. UU-Ilppl1ccU...,..
11lW!15'2-llppllcaU.. he
UU"""",UcaU""r..
IIppU...Q_ & ....nva1.D ... 'Iot&1 .
1>>2-rt.n a.uc 1.1t... .lu
1551~..c."'c...C)'Jleri._
IIlWI U52-ccmc...uolMJ' 1Iw1D\l
l5I2-ConCUlC'ncy hvt._
1_IU'2~C_....u...C)' Aevt._
-~..,
1'1U... 1'''
Lt........ ..&'II1Ull....R-ou.aC TDul
''1_1.1' c::nu.-lJl n..-lIU
1I11-Lotal ._
...... .....
m.u 01 "'",ll1t Coat... .. II
en Coau 'I.c."d_CDd 10104
...t'ht:a1
1I1.u of ",c.1I1t c..u - LI'
Mlcllet__J,,",ul
DUU of '".",v.i.t C.aU .. yo
.--...,....c Coau~ Total
1552-).09.11'_
Ill"lllli2~La.al t_
1!52~utu 3UIU.OOot
LulIt'Tata1
Tz,_I.cClPL1_11l'tc-15Sl1
U52-I1I'U/20'U
11l_IU~2-.nt2./20n3
.n. _I'DV~ Total
en Co.IU 'Ic....t.cc....10/04
......... .....
u52-133253.0oo4
U52-c.lt Mt.I' 33253.0004
n.a....a..g btal
1552-'n:J"..-l10'
~t.D.....t..1ag'Tat.a1
......Ila1....
PIItl:l.1c 1le1.u._ Total.
lU2-'C1t.antli301
Dht.c .f ...uu1t c..ta .. Lt
eu c..u Tl....I.ll"cDlll 10/04
1552-13'141-0051
lW..r11.UII41"0051
LDtal JWI Acc_Uat-otllu Total
U TAX I'MlMnDII
tol1o .2122100100020
2004 .. "Il Total
.0110.01-101415
~ccU1 'nputy 'rotal
PU.&QUI,L PIlOPDn TAlC I'IIlIQ.T10
l"...,.......-GIJoac"tal.
nlWlClNC; or 1'VIlClP.SE
.....lld,...tAc::qui.1tt....Co.It.I
'IoAdj..n.Acofu.1dU...c:..u
1'1",,,,,t... rc.'rou1
H..U......
-,
-
l~..DI.1O "" ... ...:t1-I....
11..1..0.1.1 "" .., ....~2-2....
'2)0.'" "" .... ....U-2004
2.'",0.U "" ,... 1~U-2"4
I~SOCl... .. .... 11......1004
:t~OOO.to .. .... 11.....101.
IIO~" .. .... 11..J,a-10Cl4
16.'31.11'
1.410." .. .... U......IOOot
.5.UO.....'" .... U__"2"4
....0.01. '" .... 11-01"1."
lOCI.. .. .... D-10-1101
6...0....
1M." .. .... .12.....-1....
S.'''.ID .. tN. 11-14-2"4
J.3"..... At .... .1-....2001
I.an... .. .... '1-D-2oo5
S.Ul.....
..... .. .... 11-2...2004
1.10... .. SIU 11-1'''200''
1.10.....'" ,... U..2...,.....
...... .. .... 11-2"'2""
210..... ,.. 41'" 12-21-2004
.2....
lID.. "" OM .......1114
lM.ID"
2.ln.n "" 17.. a-D1-201S
I,."S.M .. .." 11-M-I,"
2'.2U.I1'
2."6..' "" .., ....1i-2.....
U'.M "" W. 1...'1-1....
~.O.....I..
I.DIG.DO "" .., .l-li-2004
..000.co.
l00~OM." "" .., II-U-IOO4
100.0H.'"
24~"..1D .. .." U-ot..2OM
2...111..... At .." 11-04-2004
...... .. .." U-2)-2005
....ID"
a".Dh.1I "" .... .....1..1...
'~IM... .. .... U-lI-UOI
..1M.....>> ..n U-12-I'"
21.01l.sa'
I~.a.. "" U" 1"'U-2...
...U.U.
4.....11 .. .... U.......U04
1.140.31 .. un g..Ol..I...
'.'26.4"
1.40Cl.DO .. "'. 12-1')-2114
1.400.'to
US... "" ... .......,'"
u.....
1.000.10 .. 411' 11-1'''1''
2.411.10 "" .., H-Il"I.4
nil." "". u" lD-n-.....
12."'.U .. 41n 12..2'-1004
12.'..... .. .." ....u.u..
SO.2....U.
S24.'...S....x no .1-:11-2104
SU.OI'." .. 'In 11-U-loot
1."0.3......2.
3.$1'.21 .. s.n 11..0-1004
:11.1".21'
1.40..4.... .x ... 11-201-2104
2,401.4)-"
54Z.Ul.1I "" no 01":11..1004
121,ltl.U-07C 10" 14-'.....2015
142.s.01.n-,JC u.. 04.S0-2OO1
)14.531.n.
--
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o n-n-:lOOIo oX ...t.
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o n.Jl-IOM <<...t
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o 11"')1-1OCII<<.....
o 1II-1"'1OIl5 Ie _"
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D ....~I.. ole __
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o ....U-I004 K...1.
o ''''0-:11(104 ole _n
o n-u...,.... oK __
o ...1...1004.1C.....
'0 10-11-111M .JC ...1.
D 11-'0-"'" .1C _t
o U1-U-IH4I oR: .Nt
o 'l-U-Ioa ole_lit.
o U...a"'IOOS .1C ...t
o u-.al-IOIIS oX _I.
o .........,ou.x._n.
1..1...... __ I 1KuMt
o .."'1-20114 oX:-..1.
o ....II-ID04.JC_t
o ...Io-IIHM oX: _
o "-U-I004.x: cion
o 0'_.0-'004 .x_n
o lWl-lOO4 on: aft
o 11"'0-10" .x..t
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o ....1....,004 .JC...I.
o "-11-10" ox: ..n
o ....'...'IOO4.JC...t
o 10-'1-t004 .x: '_It
o 11-11"'014 Ie _
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o U-Il-I_N oJIC ~
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10-11-11I14 oJC -c.
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12-11-1004 .x: _t
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.:t-ll-ltlU .x: _t
....U-IOU oX --.
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....So-l"4 .JC _t
It-II-10M oX _to
n-Io-IOM oX _t
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....1...2OU.x:_t
U.11-2OU .Ie _t
...Io-IOU .Ie ...
~ '0 .ItbU..
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0t-II..J004 oX _t
o ,~. 0..1O-I004.1e_t
.0 0'-11"1004 oX con;
. 0 O..IO-IOH.JC COlt
o 11-11-2014 ok con
o 11-1"'2004 ~C_t
o 12-11..2004.x:con
o 01-:11-2001.x: CDlt
o U-21-IOOS.JC_t
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._,
bllet1IUII
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111004-1
159
......-
-.
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...u
-
IllIltJ
_. !l! Imll
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be ,u...1oot con-ltupltJpo 1_ IM.'''.OD .. ".. 10-11-100'
,. ~..__...,.1&1 .O....,H....
1..U....t ....... 101.2".414 .. ... ....10-100.
l..tuut bp. Oc:t,,,,,, ... 114,44'.13 .. U,. U-JO-I....
b.La,l."t. bp a..c:. 04 11',121.13 .. 1411 U..S,l-lD04
lnb....t .., ,)... 'DS Ul.IU.1O .. "10 Dl-;IJ-IOCIII
l..u....tllllPl'.a. D5 lM,I1'.U .. - .1..1...1001
InU....t hp MIUl O!ll 111.'41." .. .... D-n-'''!!'
IIUC..t&a:pllpdl0) 2N.12'.1I .. 244. ....J..I~
.......... 11 ,-.1 1,4JO.l04..Uo..
~Oll1ftconf'CllMUH ..n..lo .. no ....11..1...
~ DJ.S'ft con raa .na&O' I.Ul." .. ,.. ....:aJ-IOO.
WllCAft DIIIft eon raa OIUIo1"04 1,.1." .. '" ....11.:.1...
All..u Di.td,....uw.. Coat 1.'n.'l" .. ... ....st-l...
A.l~t.oI D1.tdnt.llbll Coot. 1.':111.'" .. 1IU 100Il-'0lH
All_u Dind"..ub1. Celt. l,m.D .. .... 11-__100'
lUll1Co1U Ilht.dntDJ. _t 1.'11." .. .... 12-,11"1004
~ DlllftlBUTNlLl: can 1.14'." .. ".. 01..J11-1..1
~OIS!'ll.llU'tNllo&can tn.11 .. U.. 02-1"'1101.
~.g Di.'-.cibu~"". c..t 'M.U .. un h-:l1"'DOI
A1l_u Di.ul....~. Coat "1.111 .. 14., ....a..-1001
un-..., Ioi-.J.n ...... 10.M .. .m .......1-.001
"t 7Ilul 1I.llO.'"
JIILUlCJlTI DJ.S!'II.IIMITMU: COft ,..... .. '" ....11-1..4
~U 01"'" con ". .JUN&04 1.1U.n .. n. ....11-1...
A!.I.OCAU Dl"" COST raa .JU1,'104 ..... .. ... ....111-100.
AJ.ll1Co1"" Dhtlr.l.ntUlo c..t .,1.1' .. .... ...:M-lOO.
lUl._U Db"-",,u..ullll Cpt In.lI .. .". lo-SJ-I...
~."" Di.uUI.~' Cpt 111.1' .. .... 11-__2004
JUl....."" ll1.t..u.u~. _t. III." .. ..,. 11->>.-.00'
JIII.UICA'It. DISTaIBUTMLI: can 14.1." .. ".. .1-11-1..1
ALl,DCAU Dln1l1""MU: can 1M." .. U.. q..1....00I
AU_U O1.tdlNt.Mle c..t lH." .. un D-11-100!!.
All_U O1.U.l.n.....l. eo.t ...... .. 10' ..-att-IDDI .
........ ..... I..M....
JI.l,UICIIlft DJ..TIIIM1'1ML1 can ...... .. ,n .....11-1004
~ DJ.8ft, COST ... MIQ' 04 ,.S..I" .. ". ,....11-2004
ALLClCI'&ft DJ.8ft, con ... o1'UHI04 IU... .. n. ....11-1..4
ALLOOI2'I DJ.1Ift COft ". oJUI304 ....410 .. 10' .....11_100""
JUloc.l"" O1aU.l.buubll Cpt ".... .. ... 0......1004
All....... Di.tdbutuJ. c.n '11... .. .'" 10-11-'"4
JUlouu Dl.uUNt.Ul. Cpt .... .. .. .... u-n-I....
All......u..U.l.nt.llll._t .I'.a .. .... 12-:111-''''
AJ.1,OICU'Z OIS!'ll.IIllTMLI: COft 141." .. ".. 01-.11-1001
Jl.1.1,CICM'IE: DJ.STaIIU'lMu: can 1SI." .. U.. n-J...IODI
All_'" D1a"d.liNt.Dl. CoNt ,..." .. ..n oS.31-IOOI
UI2~""'R 1M." .. .... 12......:1100.
~/l.t.........'I'.tal '.04'.".
~D1ft'llIIllnNlLl:CDI1' .... .. ,n ....11-1004
~mmconl'Oll.:lUll&04 1.11 .. ,.. .....11-.CICM
JILJDCk'K DJ.Sft COlT ". 0IUI01"04 .... .. '" 01-11-1004
AlllOClU DJ,..uUnlu.llle Coat .... .. ... 0....10-1'"
A1l_'-1 Dl.td,bu......lI Coat. ,..,. .. .'" 1~.1I-:IIOO4
ell' c..u ,..:....,...... 10/04 1.4".N .. .... 1~11-:II""
All...,;te Dbtd_tabl. Coat. 1.'70 .. .... 11-__1'"
Alloc.... ll1aUUIo.Italll. _t .... .. .... 12-11-1'"
IUlaoPt. m..'u.l.but.lb1. ClIIt ... .. un O-II-:IIIOJ
...t. c:..UI1 htal I.US.l"
~ OIIlftIW'!'.uJ& con' UI." .. ;" ....11.......
ALIol:lQn OII'ft eon PCIlt Mr 04 110." .. ". ....:11-1004
AIoLOCI'n D11'ft COS'I' ,.. ~O4 .1..0 .. ,.. .....1l-IOOt
JU.LQCIIoft DJ...... con "* oNLY., 4U... .. ,,, .....11-1...
All....t. D.l.n....l.b..tabl. Coat U'.'1 .. ... ....:10-1...
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/it PARTNERSHIP 0" ~"O"ESSIONAL ASSOCIATIONS
200 SOUTH 81SCAYNE BOULEVARO. SUITE 2&00. MIAMI, P'LORIClA 33131-83<40
TELEPHONE: (308) 374-71180 . "'AX: (308) 37<4-7..3
E-MAIL: INI"OOSILZIN.COM . WWW.BILZIN.COM
Carter N. McDoweU, P..4.
Direct Dial: (30S) 3S()..23SS
Direct FDX: (30S) 3S1-2239
Email: cmcdowelJ@bilr.Jn.com
April 28, 2005
VIA FACSIMILE
Jqanne Carr, Planning Director
City of A ventura
19200 West Country Club Drive
4th Floor
Aventura, Florida 33180
Re: Lincoln Pointe
Dear Ms. Carr:
This firm represents the owner of the Lincoln Pointe property. As you know, our clients.
and the City of Aventura ("Aventura") have had ongoing discussions regarding the
redevelopment of the Lincoln Pointe site since March 2004. On April 7, 2004, the City of
Aventura issued a letter advising that the Lincoln Pointe property may be developed with up to
526 residential units. In reliance on thi.s letter, in August 2004, our client acquired the property
for $41,000,000 and embarked on the preparation of site plans.
Thereafter, our client met with City staff on numerous occasions and presented various
draft site plans for the City's review.
After numerous pre-filing meetings with the City, on December 14, 2004, our office filed
a formal Application for Site Plan Approval which incorporated a proposed site plan proposing
the demolition of two of the four existing structures, keeping the remaining two structures and
proposing the addition of a modern new building. The total proposed density was 5.26 units; in
accordance with the City's April 7, 2004 letter. Our client obtained surveys, site plans, and paid
the City's filing fee. Despite the fact that the City was aware the existing residential units were
approximately 500 square feet and therefore a valid non-conforming use, we were advised by the
City that if the site was modified in any way for proposed redevelopment, that 1) the remainder
of the site would have to comply with current City code or 2) the applicant would be required to
seek a variance from the City Commission. Granting of such a variance would require a
hardship under the City Code, a standard that would be almost impossible to meet. Although our
client did not agree with the City's position regarding non-conforming uses, our client followed
the City's direction and revised the site plan to eliminate all four of the current buildings and
proposed a single tower meeting the City's Code requirement, the revised application presented a
variance-free site plan.
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City of A ventura
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On February 16, 2005, our office submitted a Supplemental Letter of Intent with the
revised plans. The revised site plan was designed with a single building and attacbed parking
garage in accordance with the City Code and similar to other projects that bad been approved
under the Code. The City then advised that the site is subject to "Zoning in Progress" as it relates
to parking garages and that the parking garage must be incorporated into and no larger than the
footprint of the building. We requested clarification on this issue but were advised that it is
unclear what the City Commission intended with the parking garage and therefore the City was
unable to advise if the application would meet the intent of the City Commission at the time of
adoption.
. .
In direct response to the City's assertion that the property was subject to Zoning in
Progress as it relates to the parking garage, our client thereafter provided for a revised the site
plan to provide residential units atop the parking garage such that the entire garage waS within
the building's residential core; .
On March 7, 2005, the City conducted its development review meeting regard.ID.g the
further revised application, and provided draft staff comments at the meeting. Comment number
one of the City's General Comment advised that the City has published notice of "Zoning in
Progress" relating to parking structures. The City further advised that until the issue was
discussed and an ordinance passed, it cannot be determined if the proposed site plan complies
with the intent of the City Commission as it relates to Zoning in Progress. Our client revised the
site plan to comply with the City's explanation of the proposed parking garage ordinance even
though $ere was not even a draft ordinance to follow, and incOIporated the garage into the .
building envelope, yet the City staff advised that as they were not sure what the ultimate
ordinance would entail, and essentially any building with a parking structure wason bold until
the City acted on the parking garage issue. The City instituted a de facto moratorium. The net
effect was to unduly delay the application. This is not the intent of Zoning in Progress, does not
meet the lawful criteria for an emergency moratorium and does not evidence good faith by the
City.
In response, our office obtained a copy of the audio cassette tape of the commission
workshop. From the cassette tape, we discerned that the Zoning in Progress should not even
. apply to residential structures. We submitted a letter to the City detailing that in fact Zoning in
Progress related to .parking garages did not apply to the residential structures, and pointing out.
that during the workshop, the City specifically advised that it only applied to the office park, MO
and B2 districts. The City on April 14, 2005 issued a letter agreeing with this position and
receded from its previous stance that the application could not be processed based on Zoning in
Progress.
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March 25, 2005
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progress is published in a newspaper of general circulation in the City and shall continue. in
effect for a period from the date of notice until the subject change, with or without amendments,
shall have been approved or disapproved by the City Commission or for a period of three
months, whichever is sooner."
The notice of zoning in progress is only applicable to the office park, MO and the B2
districts, and therefore does not apply to the LincolnPointe property. Additionally, if the City
determines that the proposed zoning in progress, in fact, does apply to the Lfucoln Pointe
property, which we do not concede, the Lincoln Pointe application was filed December 14, 2004.
. The notice, which commences the effective date of the zoning in progress, was not published
until January 18, 2005. Therefore, we respectfully submit that the zoning in progress does not
comply to the pending application by Lincoln Pointe.
Finally, should the City determine that residential structures are subject to the zoning in
progress, and that the zoning in progress in fact applies to the Lincoln Pointe proposed
development, which again we do not concede, a review of the site Plan reveals that the proposed
structure in fact conforms to the definition of building envelope as drafted in the proposed
.ordinance.
Thank you for your attention' to the foregoing. If you have any questions regarding the
attached, please contact me at 305-350-2351.
BSAlwp
cc: David Wolpin
Tom Brinkley
Stanley B. Price
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May 11, 2005
Ms. Joanne Carr, A1CP
CIty of Avenlura .
19200 west Country Club Drive.
Aventura, F:loricla 33180
RE: LINCOLN POINTE
TINTER ASSOCIATES. INC. PROJECT NO. 01.2051W
Dear Ms. Carr.
As Iequested by your office, and in accordance with oUr contract with Craven Thompson and
Associall!s, Inc.. this firm has examined e Traflic.lmpacl Study prepared by Transport Analysis
Professionals, Ino. in February of this Yl!8r. The report addresses traflic-related Impacts
associated with development of 526 condominium units on property currently ocaJpied by 1he
2B5-unh Lincoln Pointerental communhy. The property proposed for redevelopment with this
appfication is located south of WiDiams Island Boulevard (N.E. 183'" Street) immediately west of
N.E. 31a.Court within municipal nmils of the City of Aventura. In accordance with our review the
following comments are offered:
Mod"rfied Redevelopment Plan
.. Access to the proposed Uncoln Pointe development wID, according to the site plan, be
aCcomprlShed through one,. two-way access location serving the on-slte parking
garage. A cirClilar drive with a porte cochere, a Water feature, and an addltiol)8lgarage
access point provides a secondary access location approximately 240 feet south of the
primary garage Ingress/egress location. The elimination of multiple existing ac:cess
locations and back-oUl parking along the private road shared with the Biscayne Cove
residential developmenl should serve to enminate potential points of conflict and
provide lor II more efficient accesswey. .
. The Applicant should, however, comment on the driveway offset shown on the site plan
at the northern access location and the resulting maneuver required to enter and exit
the parking garage from the private road.
Existing TrafIlc Condiliona
. Prior to analyzing the turning movemenl data collected in December of last year the
Applicant should adjust the volumes, If.necessary. to reffect peak season conditions.
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May 11, 2005
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Site Traffic
. A review of the trip generation methodology shows the Applicant has provided a
conservalive analysis in determining addHional traffIC-related impacts associated with
the proposed development.
Signalized Intersection Operation
. Prior to layering project-relaled traffic onto existing traffic volumes. the Applicant should
address expected project buildout of the new development, background growth. If any,
and traffic from approved but unbullt development, If appropriate.
The Applicant has submilled a relatively conservative study that shows the traffic signal studied
currendy operates al Level of Service 'C' and is expected to continue to operate within these
parameters upon bulldout of the Uncoln polnte redevelopment The Applicant should. howe\llll".
address the concerns expressed above prior to issuance of site plan approval by your staff.
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In previous discussions wllh your staff concem has been expressed relative 10 the adequacy of
N.E. 31 - Court connecting the Lincoln Pointe development to Williams Island Boulevard. It Is
my understanding N.E. 31- Court soulhofWilliams Island Boulevard is a private road. Section
31-232 enlllled 'Subdlvislon DeSign Standards' clearly states that private local slreets may only
be permitted within the Cily when the design and construction of such streets meets or exceeds
the minimum standards and specifications as ouUined within the LOR's for public streets.
Section 31-232 further requires the geometric design of streets to conform to the minimum
standards established by Iha Manual of Uniform Minimum Standards for. Design, Construction,
and Maintenance for Streets and Highways, prepared by the Florida Department of
Transportation and A Policy on Design of Urban HighWays and Arterial Streets prepared by the
American Association of Street Highway and Transportation Officials (AASHTO). City staff
and/or the CIty's civil engineering consultant should review the. site plan for conformance to
these standards Ifdeemed applicable. ,"T
The above statements summarize our findings relative to the request for Site Plan approval of
the proposed redevelopmenl As always, should you have. questions regarding our review
please do not hesitate 10 contact me directly.. .
Very truly yours,
~3~~
J. Suzanne Danielsen, P.E.
Senior Project Engineer
JSD:fmt
waDD1....\o2D!I1~WOS~_R
Tmter Associates, IDe. . Transportation Engineers
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BILZIN SUMBE:RG BAENA PRICE; & AXE;LROC LLP
It. P.....TNE..SHIP-OP' PftOf'ESSIONAL ASSOCIATIONS
1:00 SOUTH BISCATHE BOULEVARD, SUITE 2.00 . MIAMI. ,.LORIO... 33131~:l40
-TELE"HONE: (3011) 37.-71580 . ..AX: (3OIJ) 37'-'-71583
E."'AIL: INP'OOSIL%IM.COM . WWW.IIIUIN.COM
Car/er N. M cDoweU, P.If.
.Direct Dial: (305) 350-2355
Direct F= (305) 351-2239
. EmaU: bad11lr@bi!:.in.com
April ~9; 2005
Jom .Carr, Planning Dir~or
. City of A ventura .
19200 West Country Club Dri",e
4th Floor .
, A ventura, Florida 33180
. Re: Appeal of Administrative Decision
Dear Ms. Carr:
I attach our appeal of administrative decision as it relates to the Lincoln Pointe driveway
issue. I also attach our .client's check in the amount of $650.00 representing the filing fee for 91e
appeal along with the req\lisite mailing labels required with the appeal. . .
Thank you for.your attention to the foregoing.
.
. ..
"twp
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BILZIN SUMBE:RG BAENA PRICE: & AXELROC LLP
. A PA"TNERSHIP 0,. PROrESSICN""", .....CCIATION.
1:00 SOUTH III.SCAYNE BOULEVARD. SUITI: I!:BOO. MIAMI, F.'LORIDA 33131-&340
TELEPHONE: (305) 37....-71580 . ,..-,x: (305) 374-71183
E...MAIL: INF'OOIlILZIN.COM . wwW.BILZIN.COM
. Corter N. McDowdJ, .P.A.
Direct Dia/: (305) 350-2355
l>/rect Fox: (305) 351-2239
EmIlU: cmcdowell@blWn.com
April 19, 2005
Erik Soroka, City Manager
City of A ventura
.19200 West COUJltry Club Drive - 4th Floor.
Aventura, Florida 33180
Re: Appeal or Administrative Decision Regarding Requirements Related to
Driveway Entrance to Lincoln Pointe Property
Dear Mr. Soroka:
Please consider. this our formal request, pursuant to Section .3.1-83; to .appal the
intCIJlreiation of the City of Aventurais Plannirig Director and City Attomey canc;emingthe need
'to widen an existing private driveway in order to redevelop the Lincoln Pointe property.
. . .
This appeal involves the City's purported requirement for improvement of a private
access drive leading to the subject property. On February 7, 2005 (Exhibit A), March 2, 2005
(Exhibit B) and March 16, 2005 (Exhibit C), we submitted letters with documentation and case,
Jaw supporting our contention that it is inappropriate and not. supported by the City Code for the
City to seek to require the applicant to widen and improve to current City standards. a private.
previously platted, already existing private drive (as opposed to ~ public or private street),
.especially where the drive was originally approved to service approximately 20% more units
than being sought on the Lincoln Pointe property. The d1jve .is owned by private. parties over
which oUr client has no control and no eminent domain authority, and the private drive is not a
public street.. .. .
While we have not received a formal written response from the City of Aventura to our
letters, we have beeiudvised that a written determination. from the City will. be forthcoming
advising our office that the City does not agree with out intCIJlretation and that. as part of the .
redevelopment of the Lincoln Pointe property we will be required to improve the private drive to
a 50 foot roadway. .
Not only is the subject requirement .unsupported by the City's Code bilt is resriltingin
extended delay of the administrative approval of the Lincoln Pointe development during a time
when the City is .seeking to enact a moratorium. Further, the result of this interpretation is to
require the application to proceed to public hearing when it otherwise is entitled to administrative
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ApriU9,2005
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approval to require redevelopment of the property to proceed "[or City Commission approval at a
public hearing when the redevelopment of the property is entitled to administrative site" plan
approval. .
As the City is aware, beginning in March and April, 2004, the City was approached with...
the potential redevelopment of the Lincoln Pointe property. At that time, the CitY of Aventura"
.issued a letter advising that the property may be redeveloped so that any remaining City
. requirements at a density of 60 units per acre for a total of 526 units~
. . Thereafter, our office and the developer met several times with .the City witl:i proposed
site plans and as a result of those meetings filed an application with the City of Aventura for
administrative site plan approval on December 14, 2004. 1brough this process, we have been
met with a series of obstaCles though the project meets the City's Code. .
. Please note that in our appeal, we intend to rely on the City of Aventura. CodeSectioDS
31-111 and 31-172 regarding "driveway standards" which provides that the maximum width of
anv drivewavfor multi-familv residential developments shall not exceed 36 feet in width as
opposed to the City's purported requirement that Ii 50 foot wide right of way be provided.
Additionally, we intend to rely on Sections 31-231 and 31-232 regarding the defmition of streets
versus driveways, as well as Section 31-78, regarding .when platting is required. It is our
contention that because there is no subdivision of land, no replat is required and the existing
driveway is therefore .grandfathered as Ii non-conforming lot of record and that improvement of .
the private property should not be.a requirement.of an. application on adjacent private property .
owned by third parties. We therefore also intend to rely on private sections 31-271 through 31-
278. .
. Further, we intend to rely on Section 31c3(b)(5) which provides that the provision of the
LDRs "shall not affect development for which a building permit has beeilissued .on or before the
effective. date of the initial adoption .of these LDRs . . . ."
Because the roadway was completed and is not being sought to be altered as part of our
development, the City is without jurisdiction by its own. code to require alterations or
improvements to that property. .
Based on the foregoing, we respectfully request the City Commission ;reverse the
decision of the Planning .DiTector and City Attorney that redevelopment of the Lincoln Pointe
property will require the widening of a private road over which the applicant has .no oWIiership or _
control. Such a requirement if enforced would clearly constitute an inordinate burden upon and a
taking of ~rivate property.
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Erik Soroka, City Manager
City of A ventura
April 19, 2005
Page 3.
Thank you fo~ your attention to the foregoing.
CNMIwp
i:C: Joanne Carr, City Planner
Claudio Stivehnan
Tom Brinkley
David Wolpin, Esq"
Stanley B.. Price, Esq.
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BILZIN SUMBERG 8AENA PRIC.E.~ AXELROD LLP .
A PARTNERSHIP or PAonaa'ONAL ....SOCIAT.ON.
ZOO BOUTH BISCATHE .OULrv....O. BUtTE eaco. 'MiAMI. ,.LC?'UQA >>1~1"'~
TE.U.flHONC1 (308) >>'4-7880 . ,AX: taOB) a7.-'..,a
E.-MAIL: IN"OGIlILZIN.COM . WWW.BIUIN.COM
Bri.nS. Adlu, P.A.
Direct Dial: (305) 350.2351
Direr:/ Fax: (305) 351.2206
Em.a: badlet@blWiLe:oM
February 7, 2005
. ...vIA FACS1MD..E
David ,?>,olpin, Esquire
Weiss Serota Helfman et al.
;2665 South Bayshore Drive
SuiJe 420 . .
Miami, Florida 33133.
,/
Re: Li1lcoln Poin'e Application for Adminis,rative Si'e PIa,. ApproVlIl.
17900N.E. 31" Court ('he "Property")
Dear Mr. WoJpin:
I. BACKGROUND
The above Property is cunently the subject of an application for Administrative Site PIIID
Approval with tbe City of A ventura. Please allow this letter to further support the reasons
presented .on the telepbone to you and to Ms. Carr regarding why. improvement to the private .
access drive leading to the Property should not be included as a condition. to oUr client's
approval.
.. n. CURRENT USES
The Property cunently houses .four sep~ate nonconfonning residential bufldings. The
City delermined that if our client seeks to redevelop any portion of the Property,. all structures
and uses (including existing .par~ng) must be 1) brought up to Code, even if this meant
demolishing all structures on site; or 2) approved with a variance through the public hearing
process; or 3) bring ihe existing structures into.compliance With the Code. AB the City is aware,
the current existing residential units .consist of 500 square foot units. In preparing revised pl8n.s
fo.r its pending application for. Administrative Site Plan Approval, our client has "decided to seek
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a single building Without any variances as the currcDt units and parking do not meet Code.1
Tlnis, our client is bringing nonconforming structures and uses into compliance with the City's
LDRs. .
. m. NON-CONFORMING LOT
The Property lies at the southern end of a peninsula, and itself has no direct access.to a
public road and therefore has no frontage on the public street. The Property's sole vc.bicular
access is through a non-exclusive easement ingress and egress and utilities.
. .
.Article xn of the City of Aventunl Code, Sections 31-271 through 31.278. govern
nonconforming lots. The majority of these provisions. address. nonconforming.l!!!a and
nonconforming structures. as opposed to nonconforming lots.
The current lot is a nonconforming lot in that its physicaJ charact;mstics do not mcct the.
requirements of the City of A ventura Code in that the Property does not front .on a public roali.
A nonconforming l.Q1, as distin~ished from a nonconformilig use or structure. is a .finite parcel.
of property. This lot was planed prior to the adoption of the Amended City's Land Developmc:nt .
. Regulations. (nLDRs"). Sections 3) .272 through. 31.277 of the Code .governs expansion,
discontinuation, abandonment, change, repair, reconstruction, alteration, enlargement or moving
of nonconforming uses and structures. The CIty's Code distinguishes between nonconforming
uses and structures on the one hand, and nonconforming lots on the other, in' that a property .
owner has greater control over the edifices contained on the Property but is constrained. by the
physical characteristics gQverning of the land itself. A properly plaited lot, especially one like
.Lincoln Pointe which is .Iand locked by other propertieS at the. south ~d of a peninsula, and
which only has access through an easement, does not afford the same control to the property
oWner. The property owner CBJUlot exercise eminent domain rights similar to 8 .governins
municipality such that it can improve an adjacent private property or acquire private property
from an unwilling SeBer or constraine~ by a recorded conservation easement.
The City's Code address nonconforming lots (as opposed to uses and structures) under
.two provisions. Section 31-271 provides:
Any nonconforming use, structure,. or 121 which lawfully existed as of the.
effective date of these LDRs and which remains nonconforming, and an:y
use, structure, or 121 which lias become nonconforming as 8 result of the .
adoption of these LDRs or any subsequeni amendment to these LDRs may
1 Our client's decision 10 C~nstruCI a single structure was paniall)' based OD the delennination \hat r~onfjguring the
existing StruCIUrc:l 10 meet Ibe City's Code would provide unilS that, while meeting the Ci1y's Code, would _
produce a marketable floor plan al an acceptable .price commanded by the cwrenl market place.
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Febrwuy 7, 2005
Page 3
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be continued or maintained only in accordance with tpe terms of this .
chapter. (Emphases supplied).
Redevelopment of a platted lot with uses and structures that conform to the City's Code is in .
accordance with the rererenc~ chapter. . .
Additionally, Section. 31-278, entitled Nonconforming Lots of Record. governs
subdivision of nonconfonning lots when two or more contiguous, vacailt nonconforming lots of
record arc in. a single ownership. By clarifying that it is governing lots that are under a single
ownership, the City, in adopting its Code, inherently recognized that a property QWJler only has .
control over lots or properties that are under its ownership. . .
The sllbj ect property is a nonconfonniJig lot that is the subject of a current application.:
. The entrance drive that the City is requesting be improved as a condition to the administrative
.site plan approval is actually not a .public roadway but private property, outside the legal
. description of the subject application and outside. the ownership or control of the applicant. The
subject lot is a nonconforming lot of record that was properly. platted in 1979 as . Tract D
Admiral's Port, Section 1, Plat Book 113,.Page.51.and remains a properly and legally planed .
parcel. This property is .alegal pennissible lot. Importantly, as you will note from a copy of the
.. attacbed plat, the Easement also .was planed .as a separate parcel and was recorded of record.
Our client does not seek to alter .the lot-but to maintain the lot, (as opposed to the uSes .or
s\11lctures on the lot), in its elisting condition and therefore redevelopment would comply with
.,section 31-271 of the Code of the City of A ventura governing nonconfonning lots. Had this
been an application to subdivide the lots; then the Citj possibly could assert that Section 31-232
applies. and the drive must eonform to the City Code. However, a clear distinction must be
drawn ~etweCD I) seeking development approval on an existing properlyplattcd, noncOnf~rming.
. lot; and 2) the subdivision ofJot. The provisions regarding. access drives. .are. addressed under
Sections 31-232 of the City Code governing subdivision oflots. Our. client is not presenting an
application to subdivide the lot.
Redevelopment of the subject parcel should not be treated diffeiently than development
of this parcel had it been vacant. It would be potentially confiscatory for the City to take the
poSition that the subject parcel, if vacant, could not be developed without a variance as this is a
legally existing, properly platted, nonconforming .lot. .
'.
The City's request would be akin to requiring thePublix adjacent to Aventura Mal] to
improve the Aventura Mall ring road, which is owned by a separate entity, solely becaUse the
Publix site will be partially accessed from the private ring road over and across an easement.
This would leave a private property owner at the whim of an adjacent propertY owner.
...,.
.
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QIL~INSUMetRG BAtN~ PRICl. AXELROD LLP
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David Wolpin, Esquire
February 7, 2005
Page 4
IV. CONSERVATION EASEMENT
Additionally, not only is driveway (1) not a part of the legally existing platted Jot, (2) not
. . under the control of OUT client, (3).not under t,Pe ownership of OUT client, but (4) is &Iso subject to
other regulatory governing agencies. In 1984, the ~iami-Dade County Department 'of
Environmental Resources Management ("DERM") acquired a conservation easement on the
private drive. The effect of the conservation easement is to limit the area within which the drive
. .access may be developed. While the County and DERM did not take title to the prop'CIty SubjeCt
to tbe Conservation easement, the portion of the property under the conservation easement is
subject to regulatory taking su.ch that the expansion of the drive is not only outside our clicnt~s
control because of ownership reasons but is otherwise restricted by another government .a~ency..
V.. ADDITIONAL LEGAL SUPPORT
Both under Florida law and the national prevailing view, legal nonconforming uses. and
lots are. constitutionaliy protected vested property Interest that may not be terminated unless until
the property owner has evidenced the relinquishment or abandonment of. that propet'ty right for
some other use of the property. Our client is seeking to redevelop the. Property. which is .contrary
to the relinquishment or abandonment of property rights associated with.the pared. OfparticUJar
importance to the Lincoln Pointe site, is the Florida case of Lewis v. City of A11antic Beach. 467
So.2d 75.] (Fla. I"' DCA 1985). This case reviews .the fundamental constitutional principals that
mandate provision for la'Yfully established land uses that predate. zoning regulations or in this
. case that are rendered nonconfonning by govenunental action. Though dealing. .with. a
. nonconforming use, this case is instructive for the Lincoln Pointe drive. . In Lewis. the Court
reversed the City's effort to terminate a .nonconforming lounge. The City's.ordinance was silent.
on what events would trigger tennination providing neither for intentional ab.andoniDent nor .
specified period of disuse. The Ci.ty had intelpreted its own ordinance 10 require termination of
the lounge upon evidence that the operating tenant had attempted to sell his liquor license and
had closed down the lounge. The CoUrt rejected these grounds as insufficient to terminate the
lounge use. The tenant's unsuccessful attempt to transfer or sell the underlying liquor license to a
. differenttenant in the Court's view did not signify a decision to forever forego the lounge use nor
was cessation of the use sufficient when the City had prevented transfer of the liquor Hcense by.
failing to certify the nonconforming use as lawful. Similarly, the requirement for the
conservation easement to DERM, on the access road to Lincoln Pointe, calUllit"be construed
. within the penumbra of our client's control in order to rCquire a variance for the drive.
Perhaps even more instructive is the. case of Connor v. Chanhassen. ..81 NW.2d 789
(Minn. 19S7).In Connor. the zoning ordinance sought. to deny theplaintifi's the right to resume
their nonconfonning business use of the premises after partial condemnation by the sta~e. The
court "found that .ordinance was an unreasonable police regulation under state and fedcril
constitutions. Under Connor. the courts stated that if condemnation serves to activate a
MlAMI 855869.1 7592420873
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8IL~IN SUMlltRG BAENA Pille" AXrLJlM .LLIl
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David Wolpin, Esquire
February 7, 2005
Page S
prolu"bition of a zoning ordinance so. as to deprive the owners with the right.to. Continue .the
operation of the business in their remaining portion of the track, it would constitute an
unreasonable and unconstitutional police regulati.on. ..
The City's regulations provide. for property to be brought further into compliance with the.
City's .Code. by the eventual improvement .or elimination of nonconfonnities: Our client is
seel;.ing to remove four nonconforming Structures on the Property and replace them with a single
conforming structUres including meeting the City's minimum unit size.. However, the City's
proposed intelJlretation of the Code require our client .to conduct offsite improvements on.
pIoperty not owned, controlled or part of iti application precludes our client from r.eplacing -the.
current nonconforming buildings on the site within a conforming development. Additionally,
because there is a conservation easement across the subjeCt drive, the City may unreasonably be
imposing an impossible condition on our client.
VI. REQUEST
Based on the foregoing, we -respectfully request that the City reevaluate its position that.
our client, in order to seek administrative development approval for a conforming stnicture on its
site, must conduct improvements on: I) private property; 2) that is not the subject of the
application; 3) that is owned by an unrelated. private entity; 4} on legally existing, properly
platted parcel; and 5) that .is the subject of a preexisting lawfully in place conservation easement
in favor of a controlling governmental body. .
While our client is willing to assist in -the improvement of the drive, it would: be .
. inequitable to include a condition that required approval of an adjacent property owner .and
possibly an impossible condition given DERM's conservation easement.
Shoul~ you have any questions regarding this request, please contact me at (~05) 350-
. 2351.
. BSAlph
cc: Joanne Carr (via facsimile) .
Tom Brinkley (via facsimile)
Stanley~. Price, Esq.
MIAMI 855869.1 7592420173
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10 fOR.AD1STANCE at' 7'1.45 f1n:T; THENCE RUN S 00' 'Ol". 45" E FDa
DISTANCE OF 63,112 n;t::T '1'0 'fHt:: J'OINT OF IN.TI::RSECTION,WTIii.THE AR(
orA Cn.CULAR CURVE CONCAVE 'ro. TilE SOUTHWEST, THE CtNnll OF WHl(
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SOUTHEASTERLY Al.ONe; THE ARC at' SAID CIRCULAR CURVE'..CONCAVE TOTI
SOUTHI.'J:ST, HAVING A RADlUS OF 308,00 FEET, T~ROiJQH'.I." .cENTllAL.
ANGLE OF 33' 26' 20". f"OI{. AN AIIC DlST~CE' OF 179.7$"' FEET TO A
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THE RIGHT; 'fHENl:& KUN :iOU"UgA::'I'&RLY ALONG THE f.I!,C '-BF ..!lA.ID
CIRCULAR CUIWE.1'O 1'111> II1CIIT HAVING A RAOIU.S..O'- .~~iI,~~6 'FEET,
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A STRlP OF UPLAND. AND SUllMl;ll.CEO LAND 40 FEE'l' .1~ ~lP.;tM:;lli ,;ii~:::NB. ~
1/4 OF SECTION 10, 'rOIJNSHII' 52 SOUTH, RANCE 41. ~.~i"~ p'APE,..cq.~'j,
FLORIDA,. LYING 15 .J.'t:ET WA'l'I!RWARDAND 25 TEET, LAN.QW~RQ~'91':oIE'~
HIGH WATER LINE OF "HE NeR'1'H LACOON AT W1LL1~d:~D..,.:; Jl~J!i'i':?:::
HORr. PARTICULARLY OVoSC1U liEU AS .'OLLOWS I,. '~..":!",, ',ifJi!ii. "..{-l...~,-~".. ..;"
. .' . .. ., . .......il<lo;t-. ...~.:-q,.. t
COl1l'\ENCE AT TilE NOR'I'H~H::iT CURNI::K OF THE NE 1nt. OF. SUp' SECT-ION'" .
101 THENCE RUN N 89M 57' 1S" E ALONG THE NORTH LINE',Of. T1U~,'J.fE JJ~
OF SAID SE.CT10N 10 I;oQR ^ IHSTANCJ:: OF :594.22 Ff;l!:T :to TtiE POlli';t' OF
INTERSECTION WITH "I\E AI(C O~' A CIRCULAR CURVE CONCAVE TO THE .
NORTHEAST, 'rH~ Ct:Nn:R 01' \IllICit. ~&ARS N 48" 43' OS" E 'FROM' S"'ID '
. POINT OF INTl:RSl:CTll)NI 'rlll:NCE RUN SOUTHEASTERLY ALONG THE 'AIlC OF
SAID. CIRCUl.AR ClIIlVl': COl'll:^VI~ "U 'mE NORTHEAST, .IiAVI~GA RADt.US 010'
, .250;00 ,'Elo:T, TlIl{l)UWI " C"N'I'RAI. ANGLE OF S" 44" 52~".FQ.' All 4Jl,C ' .'
DISTANCI:: O~. 25.011 1"I::~:TI 'I'IIJ':NC~: IIUN S 89" S7':',1~'t.W.~Na,:~"t . ;.
. SOtlTH LINE O~' 'rHI~ No'K:ru 1 U.OO "~;ET. OF THE NE-j.J4t. O,"\S"',ID :'FECTIOIf
. 101t'OR A rnST^NC~: u... 7~.lj~ .n:t:"r; THENCE RUN S .-OO".,O~' .4".s!'~J FOR i
Dl$TANCE OF 63.82. n:E1' to 'rilE t'111NT OF INnR~i.CTJg" -"i1TJHrHt!.....~c.
or.1 A CI RCULAR. CURVI': CONCA VI:: TO 'rilE SOUTHWEl\T ,f: TI:J.1:.~.1>~tlT~R> O"\Wli1ct
BQ.RS S 17M 10' 54" W ,.,HOM SAID POINT QrINTf;fiS1!.ct~Q!ll;',"l'li~: J\~
SOUTHEASTERLY ALONt: THK Aile O~' SAID C1.R"CU~R,;,;(;.u.li:v.ti~NCAV;f;{.tf.9.:.,1.li,J
SOUTH\.1EST, HA VI NO . ^ !tAl.) I US OF :lO8. 00 FECT,: T~~.~~.fEN:;rM,!r:;L':.
ANGLE OE 33. 26' 20". }."(lIt AN ARC DISTANC~. 0(,,~~..;.9j~'~.5t;~~;~9'~'''', .
POINT OF CO/WOUND CURVA"UK~ WITH THE ARC 6F':.~./(:I.n~.j.I~:"CIJ\~!\',TPJ.
THE RIGHT; THENCE IIUN llOIJ'l'llEASTERLY ALONG THE:.,'~o-.::pr~.pD;,~::~~.:.. )
CIRCULAR CURVE 'I'/) 'I"H~: III GIl'I' HAVINC. A RADIUS :P1:"~~!,,~(, 't~r:rl~.: '., .'
" THROUGH A CI::N'rRAl. ANGL~ Ot' :J2" 211' 46" fOR: JJf.U'iff.~ l.>J,firA.lip~:--.Ill'~;f":~
20,6,66 nET; TllliNC!! KUN S 06 M ~~ I 00" Ei T1J/~~~;~~ '.-:pt!. ~;;:::'.i
Di;<SCRlBED CURVE, .")R A nlS'rANC~ OF 243.00 f.E~~.!~~..~~,..;".
N Is:! M 06' 00" t.: .'oa A Ill.S1'ANCE OF 50 FEET,.' t1Q'1\~f;P~~~~l~1.i':;~~HE ~,
PqiNT O! INTI::Rs~:c-rlON WI"l'H THE MEAN H1;CH:,,!A.T~R~ t.1~~rf\".\"~~~ p..R."1'I{.
~GOON AT \HLLIAMS ISLAND, SAID POINT ot'.l~rE.~S.~~Ji.:!~tl~. " "
PqlNT OF BEGINNING OF 'I'HI:: IIEREiNDESCR.IBEo..'~;~':'Il;'Q1.':;'$l.P~J.l.'. :..'
SUBMERGED LAND; THtNCE MEANDER NORTHWESTER("~JNiQ\fi ~o/J~R~y.:. fl'''';
ALOHG THe 'HEAN 1I1CII \J^,rl~R l..lNE OF THE tlORTJ:!.(1..J.4;P.P..:.;'. ,::'le'~~iB: ':...:
ISCAND FOR A DISTANCE IJII 5:10 U;SS FEET,"TO.-r.1u~h, . >.. \~!\I.i.. Lfi.:
'.DESCRrBEO STKII' O~. llt'LAll.U AND :iUBHERCED L#.l.D-i'i~'.J,(."t,:: .~,l -\.dtJr-;,' '. h'l. Y,
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ALL THAT PORTION I'll I::ln:1l I". "IlA'r 1.1 ES WES.'fEIlL.V "QF::~IlRirl. !t1..Q".J)l"'~1 I'.
DESCRIBED LINE: .' "'; :,:~.~:!t~'J ':J:'.~~~ ~oI; .
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101 THI::NCE RUN N ll!/" .51' l~" .: ALONG THE NO,RT.... l..I.Ni~.DF'mr::~E 1/~
OF SAID SECTION 10 1'011 ^ D1S1'ANCR OF.594.~~!JtW{-i~~;...Jf;ltr.: ~'f:Of
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NORTH~AST, .THt.: CI::N'f1m O~. WIIICH llEARS'1I 48~".:~-r.~:i!ntr1'19JiL : 9'<:":'::1 '. .
POIH'ri OF IHTI::RSE(.vrION; .Tm:NCt: IIUN SOUTHEASTERIJ.~'ALOIW;~ .~~:~M~:.;Q.f.~~d!' .
SAID /:=IRCULAIt CUItVE GONCIIVt: '1'0 'I'll!:: NORTKEA.S'r, '.}JAVl.w:\':~~ p,'1'U:>.t~r.;v.
250.00 FEET, THROUCIl ^ Ct:N1'KAI. ANGl.E 'OF 5- .44!'~~. ':P~/N.i",;R5iW-;.
DlSTA,NCE OF 25,08 ~'E\!T;'I'Ht::NC\! HUH S .89- 57':. 1~".' W.~~O<.:rI!,,;,i:"."':.
SOUT~ LINE OF THE NOItTK 18. 00 FE~ dF ,THEN~ VI! Q,Jl"30~~ ' l.()fl "i
10 FO,1 A DISTA1lCE OF 79../,5-fl::ET: TllENC&.aUN:.'!i"QO~.-O~.;. ~~1~. ~.4~
DISTAiI'lCE OF. 63,82 .rtET: THI::N(:& RUN N 'n" 10' ;'54f. 1;". - .A;lQ1,,~CJ1'~
OF 2lX,OO FEET TO THE POINT OF INTI::RS!:CTION' WITH:.THl:~'!AR.t;"O~:.!t:'. ,: ~"
CI RC~\.AR CURVE CONCAVE '1'0 THIt SOUTHWEST, 1"E. .CENTIUr'o';;"WlirCK...,;..". ,!
Ill:AJlli s 17" 10' 54" W t'Ro.M SAID POINT QF INTEItS.ECT10.!i"AAo- .'J.'U;. '.'
POINT OF BEGINNING 0.- THt: Ilt:kEIH DeS.CRIIlED LINE, Tt:l.&N~..RU,,"f{~~ - :.
. SOUTHEASTERLY ALONe '1111:: .Alle OF S"ID CIRCUUR CURVlt .qotl.c.AvJt'1'R,:rJU:
SOUTHWEST, HAVING ^ RADIIJS or 3)4.00 FEET, THROUCH A CI:NT~' ." .
ANCl.E OF 33. 26 I 2U". ),'011 AN ARI: DISTANCE 0'. \ 94.93 'FEET 'rO ".!.'
POINT OF COl1l'OUND CUIlVA'I'lIllt: W1'I'II THE ARC OF ^ CIRCUl.A1l. CURVE. ~
THE ~ICHTl THENCE RUN SOlrl'UI::AS"l't:llLY ALOHG THE MC. ~ ~101.D. ;.t::~i:. .
CIRCU\.AR CURVE TO THI:: Ra:HT HAVINC A RADIUS Q.f 390.~6..~~&T"'''~'''' .
THROOGH A CENTRAL ANCI.); ca' 32- 28' 46" FOR AN ARC D1S'1"ANC~AQF.: ....~ .
22\ .lio FEET: THI::N(:lf !tUN ::l 06" 54' 00" E, TANGENT TO''1i~E ~t'i, .'
DESCRIlII':D CUIlVE, i"0I1 A DUiTANCE OF 21,3,OO.'FEE.'1"TO THE..rJlD'C':~!I'HE
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1/4iOF SECTION 10. 'rlJWNSII1P 52 SOUTH.. RANGE.~~'EAST,!.~D~ CPI,l.~!!~:
FLORlDA. LYING 10 f't:1IT YA'I'l::kWARlI AND 20 FEET'.',iUH)W^~DiiO'" ~~qo{l:.AI'
HICH WATER LINE 01' 'rll~ NClItTH LAI:OOH AT Wl1,.1.I~'. :l~.I::.OIJ~~. ~MW::: '
MORE PARTICUU1U,Y D~:CKI bt:D AS t'OLLOWS: .;:~;~~ ,!.~{f:~. :. f' . '. .
....,. "1'.,. ,,,.. n- '0-
o . . '. ::.. 't." '0'" ...."
COHMI::NCE A't THt: NOItTIIWl::S'I' CURNt:lt OF THE HE ,'it,- O.F. ~~lD StctION .
101 'I'HENCE RUN N tl!/" 57' 15" E ALONG THE Noam :L1HE~or. THE HE 114
OF SAID St:CTION 10t"t11l ^ DlliTANCI!; OF.594.12 nUtT TO.T~Ul:..POIHl", OF
. INTEKSECTlOtl WITH THlt ARCO~' '" ClK.CULAll CURVE. CONC4VII:'.TO TlJB'
NORTHEAST, THt: C1:N'n:tt U~' WIIICH 11t:A1lS. H 48" 43' 'OS", E FROIi SAID.
POINT OF INT~K$~C'l'ltIli; '1'IU!NI:ii: I{UN SOUTHEASTERLY ALONG: TlU:' ARC 0.'
SAID CIRCULAR .C:IJRV~ t:ONC:AVlt TO '1'1It: NORTHl::AST, RAVING A RADIUS 010'
250,UO,ft:ET, 'l'III{OUG\I A 1:I!N'rMl. ANGLE OF ~" 41t' 52w:roi AN AIlC
DISTANCE OF 2~.08. .'~:~;T: 'l'IlI::NCt: tUIIC S 89". S7,~ :):i" .\J ,.,u.QNG THE.
SOUTIl LItlE Ot' 'nlE NClR'l'H l11,IlU 1,'e~"T OF THE NE', /4 OF. SA111 S1:CTIOH
10 :FOR A DISTANCE 0.' 79,4.:> ,'el!T: THENCE RUN'Ii,OO". 02' '4S'! f: 'FOR A
,OISTMCE OF 63,tl2 n:~:T '11l ~~1Il POINT QF lNTE~~CTloit. \/lTH''rK' ARC
OF A CIRCULAR CURVE CONC^V~: 1'0. 'rilE SOUTHWES.T, '.THE .CENlr.J>R O.f "WHIC,,".
BEIlRS S 17" 10' 54" Wt'kOH :iAlll POINT OF INTEItS1:CTlDN'1 THt:NpE flUd.
SOUTHI::AS'l'1:RL.Y ALONG 'rHt: AKC at" SAID CIRCUl.i..R '.CIH<.V.E::CQNCAVE 'TO Tlill:
SOUTHWEST, 1"lA V I Nt:. A RAO I US OF :IOll.OO l'};:ET,. !r..tlRQUQII'..i.. 'tt~1~
ANGLE OF,33" 26' ~O". FOR AN AIIC DISTANCE ol(il1!1..l5::.t-JE.'t TQ..~.
POINT OF COMPOUND CIJRVA'I"UKt: W1TH THE A~C OF"A).CIR~"Il~ c-qaYJ;;;1'O..
'l'IIERICHT; THENC~: l<il~ ::i()U'I'IIy.As~n:RLY ALONG THE .j,~ 'ot'SAlD' :;.::
CIRCUU1I. CURVE TO '1'1\1:': .lllCIIT lIAVING A RADIUS. 'Of.; 3-6.4.15~~ fEtor,. .
. THROUGH A Cf.NTRAI. A!leu: O~' n-211' 46" FOR AN ARC''[)1$'l'A"CE OF
. 206.66 F1:ET: 'rIlENC~ HUN S 06" 54' 00. E, TANGl:~...tp:''JlH& ~~T'
DESCRIBED CURVE, fOK A 1l1STANC~; O~' 243.00 FE~T.1 T'~N'CE, lUre.' .
It ~3- 06' 00" E I'OR A DI::i'rANCE.OF 50 FEET, 1'1031: .0lt;'.'-E:Ss. TQ TIUi:
POINT OF INTEKSI::C'ClllN WI"" "HE 1\I::AN HICH WATJ,;R. q.~ OF TH.r< .1'l9,~TK' .
!...AtOON AT WILUAMll ISl.AND: 'l'IiEl'll:E Mr.ANDER..~.O~!PU"~.S,TJ;~~.: '.:' . .
NORTHERLY. NOR'J'Hf:~S'n;H.L"'., I~AS'J'lml.Y AND so.UT.fI~.'rJ;:Rf;":~l'\Q ';tHE
.MEjul .HIGH WATER LINE Ojo~ Tilt: HOK1'I\ !...AG09N A~,;WlLLl~.;~St.A,~Ur;.f.Oll A-
01&. ANCE 0J0' 560 ~"t:I::'f.. ,MIIRt: uR I.~:SS.. TO TH~.,FI-U$.lJt~p WLYI!~t'lh'TO
. DU }'OU.NOING HAY AT 'I'HE NORTH ENIl OF SUO ~P.jl.t'~ . l:J.,'(;O.QW"A,'t..W.l:J;.l.1AHS
lS "D,~ AND 'i'HE "OIN1' m' lJ1:lllNNING OF' THE. HKR.IUH:!i!!1tS,llRUIU~.,'~,{lllf',
. OF! UPLANP AND SUIlMEKGI::O loAND; 'rKt:NCE CONnJiu.~<.TG:,i.M~"D~:.: " ..
S~UTHEASTI::Il1.Y ALl1NO 'I'HE Mf;A" HICH WATER. LIfl.t'.p.(if~':~PIl1H':'~oo~
A WILLIAMS ISLAND t'UR A DISTANCE OF 12.30 f.E~T. MOa.II;.I011; L1."'SS'"TQ
'r E POINT OJ<" IN'fI~R$t::C"l'lON IHTH "H.E CENTI:':II. 1.1~E' O}".tifHS" PEotS.o.rR,l......
Il lOGE TO THE llil.AND IH '11m SOUTH LAGOQN AT'''WILt;l~''lSt.ANB, AND
~~~:N.D OF''rHE 1I~:RElN OI~:;CKIBEl) STRIP'~t~..~~~. ~J~~~~~D ,
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1/"4 OF SECTION 10, TOWNSIIIP 52 SOUTK, RANCE..~.tAs'~~b!.DE~.CQ.l1.NT'l
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of SAID SECTION 10 "'1.)1\ A UIS'I',\NCt: Of' 594.22.. FE&t TO 'rilE f.01NT ,01
INTERSECTION WI'l'ti 'rHK ARC Ot' A CIKCULAR CURVE CONCA.V& TO THE
NORTHEAST, '1'HE Cl::NTl::k IH' UH1I:1I III.....RS N 48. 43' OS" C" .."ItOH..SAlD
POINT OF INTEItS~:C'I'ION; 'r1n:Hclt RUN SOUTHEAS'l'E.II.~'t. ALO~~ TKK ARC 01
SAID CIRCULAIl 1:IfIWt: I;ONCAVV. '1'0 'I'HI! NORTHEAST;' H~VfNC- A RADtUS OJ
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DISTANCE 0....25,08 ,'t::t:-r. 'l'III::NI;1:; IUJH.S 89. 57':15";" ALONe '~E.
SOUTH LINE m' 'mE NOK'1'H 11:1,00 n:!;f OF '1'K!: HE. 1/4 OF. SAIP l;it:c-nOl
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. DISTANCE OF 63.112 n:t:r TU 'I'IIE 1'00NT or ItiT~~j1~CTlOl'l::l.nT1l .XHii: All.'
OF A CUCULAR CURVt: t:UNCAVJ:: '1'0 Tilt: SOUTHWEST; 'TH~'C-=NT~It.OF wHI'
. BEARS S 17" 10' 51,".\.1 t'IWM$AID POINT 0' IN'I'&1l.S~CT.J;Ol'f;.J'Hl:NCt. II.
SOUTHE"AS'l'CRLY. Al.ONC 'J'Ht; AIIC mo !iAID CIRCUl!-lt ..~UJU!E:.c.pHCAYf: TO T
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ANCLE QF .33. 2~' 20", I'OIl..M AKC DISTANCE 0.f.:179:7S',Jo'EET TO A
. POINT OF COMPOUND ClIKVATI/K~: wl'rtl THE ARC QY.'I,1o (:)-IlCU'LA.R t;Uf\Vf: TO
THE )UClIT; THENCE IWN ::lll.lJ'fHEASTI::Kt.Y ALONG THI!: A~~.pY. .SAl-Q:. . .
, CIRCULAR CURVE 1'0 Tilt: RIl:Il"r liAVING A P.ADIU~.Of":36-1o.:.~6 FEiT~'.
'THROUGH A Cl:WfIlAL Alitil.Yo ()~' n. :lll' 46.'. fO.ll..AN J.R9'''OlSTAtiC~. OF
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DESCRiBED CURve, tOOK A DtSTANC\:: OF 243.00. n,&T~:THt,NCE. &pJi .
".83" 06' DO" Ii: t'()R ^ 11I:;TANCE:OF 50 FEET;.~R~,.~~!~EljS';~jI:Q THl!
POINT OF 1N'I0l::KSEC'r!01l WI'fH 'rllt~ 11t:AN HlOlI \J4'N~R'~IHIt0 OF ''1'tlE :liOK";!
LAGOON AT WI LLI AMS I :;l.AND; TllllHC& l'IEANDEB.. tillJ!~II~.jf.ST~Rt.Y ;J;,"s ,;.'
NO.RTlIERL't., NOR'fHI::AS"n;ltLY, t:As'rl::Rl.Y AND $~UTUf.As.T:qtt;:.f ,,~. 'l"KE'.
MEAN HIGH IJATbR LINJ-: O~' 'I'IiE NOIl"rH LACOON AT'~'WI''tl~ 'ISl:A~D" FOI
DISTANCE OF" !>60 . "'Y.ET, HOHt: OR .I.ESS,' TO T~&-1.Fi,ilslfIflG:(CUI..V-ERTS '\'C
, DUMI'OUNDINC. llAY ...'f "IOIIE tlOWrIl END OF' SAID .tlQ~:rtl';~H .....'l'.:~lLUI
. .ISLAllD,"AtlD '1'HI::.I'(lItl'f IH' 111':i:lllNINC OF TIlF.:,li1:REl-N".;?f,;:';CIl8i<P' $TRI
, OF UPI.J,.NO AND SU\lMt::lll:t:D .I.A!'ll>; l'I'IlI~NCE CPNT.J,tlUlf tg"~~DEA~,:'~ .
SQUTIi!:ASTt::RLY ALONG 'rHt: M~;M Hlt,;H \lATER Lltl~~.Or:~~.ij~..tIQRTfJ, LAGOC
AT WILLIAMS ISLAND ~'Oll A U!:;'/'ANCt: OF l230:f..!;t;ri(\~1tf,: 'pR-:t.~SS T(
.THE POINT Ot'IN'r"IlSI~C'I'lOH IJlTIl 11iE Cf:NTEIt.I,.~E;:Q".!TJn:''pf;t).ES,TRlJ
lIRlDCE TO '1'HI-: ISI.ANIl IN 'l"1Il~ ~OIJTII UCOOH A~1W1"LL"1.~ ISI::;6.ND. At
THE END O}.' .THE HI::KE1N OI:::;CMllll~D STRIP OF iJ~W~;:;i\N~. S.VJ\I'I"~~ED
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WITH THE ARC O~' A .1: I Relll_AII I;UK VI:: CONCAVI:: 'fO THE NON'l'tU::AST, 11tt: Ct:tl"1
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. RUN SOUTHEASTERI_'i ALONI: 'l'lm AI<C 01" SAID. CII<CUlAK CURVI:: CONCAV!! 'nr..rl
NORTHEAST, HAVINI: ^ IUII1IU:-i nt' 2:;0,00 t'I::I:."T', THROllGK A. Ct:N'l'kAL ANllJ..: (
S" 4lt' 52M .rOR AM Aile 1I1:;'I'ANCI~ liF 25.0ll ~.t:I:.Mr; TIIENCY. KUN.~ IIi" ).,' i
.'W ALONG 'l'H~ SOU1'1I I.INI:: Ill' '1.1t1~1~'.IIt'J"1l 111.00 )o'J::t-:T lJt'.'(HI! Nt. l/4 .lJ~' :;,,11
SECTION \0 t'OR A DI:iTANCt: IIf 7\1.45.)0'1::1:.'1'; THeNCI:: I<UN $. ou.. 02' 4')" I!
rOR A DISTANCE OF ..3.8.. n:t:'[ '1'0 'rHg.t'oINT .UF [NTI::RSI::CTlON WITH 1'lt~: I
OF A UIRCUUlIt CllllVJ:: CONCAVt: I'll 'rHI:: SOU'1'/lWI::ST, "j'ltE .Ci:':N1.t':K OF WHIClf
tlURS S 17' 10' ~4" W t'Il11M SAIlJ t'0 I 1"l'I' m' lNTI::ll.SE\..~nUN' 'I"HI::NCt: I<IIN
$OU'rHE:ASTI::Rl.Y AI.uIlI: TUt: Altl: .lJI' :iAID CII<CU'lAR CUtWI! CoNCl.VIt TO "111::.
SOUTHUl:ST, HI. VI NI: A /lAJlIIl~ 0)0" )01l.00 Ft:\:."T. THROUGH A Ct:N"fIl.A1. ANtoLt: I
33" 26' 20", rOI< AH IIRI: !)I::"fAN1:t: or 179.75 FU.-r TO A .t'OH~T Ot.. COM 1'0,
CURVATURE \oI11"H 'I'Ht: AIlC Ill' ^ C I tlCUlAR COIlVi:: TO '(HI; KIGHT;. THt:NC~ I(UIt
SOUTHE"'STERL'i Al.OllC 'nu': Alte: 01" SAID CIKCUl.A1t CUMV!:': 'ro THE KIGHTHhV
A RADIUS Ot: 36/j. 5b I'~~:'r, 'l'IIKOIJl:H 11.. Ct:WTIl.AL ANGl.E OF 32M :.til' lob" t'OK
AKC OIS'fANel:: O.~. 206,66 1"l::t:'I'; '1'1It:NCt RUN S06..54' UO" E, TMH.:I-:NT 'n)
THE LAST OESClIlll!!:U (;UKVI':, FOll. A I.lISTAtICE !,IF 2liJ.OO n:"'"T: THJ::NCt: HUN
II 83. 06' 00" E 1"011 A IJr$'J'^NC~: OF 50 1'1::1::1', tIQK~: Olt U:SS. TO '1'HI:': i'1)1
OF IN,TERSECTION wl'm '"ltl( l~t:AN HIGH WATEK LINt: dt THl:: NORTH. LAl;OON;A
_ WILLIAMS ISl.AN\); "liI;NCt:: M~:AN111m NOR1'\iIJ!!:STI::IlLY, NOR'1'HEKLY,
HORTHi::ASTI::RI.'i'- .RA:;,.ICIlLY ANI) SfJlJ'J"IiEASTEKLY ALON~ THE MCAN HICH \I....I.!::K
. LINt. OF Tilt: NOIl,.lt I.Ac.:OUIf A'r WI.I..LIAMS ISLAND FOR ^ U.IS'fANCE OF~60
fEI:."T, MORE OR .U:Sll; 'ra 'l'Ut: )o'I_lISHINC CULVERTS TO I>UtU'OUNOINC bAY. ^1'
"NORTH END .OF .!>AID NI)Il'l"" lJ\\lOON AT IJiLLIAMS ISLAND,. 'l'HI::NC~ CUN"J'INUE
IIE.ANDf.RSOU'I1U;Asn:I<LY AI.UNl: 'l'Il~: MI::AH HICH \lIATt:K LINt: 0"- 'fHl::HuK'fU
LACOON AT WILI.IAM:! ISI.AI'4U t'OIl II. DISTANCE OF.l:00 Jl'itr HOltE OR U:S:!
THE POINT OFIN1'1::II:a:C'flIlN \/1"1'11 'rHE Ct:NTI:':II LINt: ot Tlit: Pt::OESTK1AN
BRI beE TO TIl~ I:lLAllO I Ii "1'111:: SU\!1'H LAGOON AT \ll.Ll.IAt1S ISLAND;. 'fHI::NCF
RUN. SOUTli\It:S'rI~RI.Y 1I1.()NG '1'1Ii:: Cl,N"I'ERLlNE OF SAID PEDESTRI At! BK I PCE t"C.
01~TANCE OF 1!l5 n:I::1', NU II 1-: OK I,ESS TO 1'HE .POINT OF IN'fEltSEC"rJON Wl1
:' THl!: ME.A1l HIGH WA'n:l( I.UIt: IlN :>^l D l:!LAHIJ IN Tltt: SOUTHl.ACOON AT
WlLLIAMS lSLIIND; 1"IIt;NC~: MI':ANIJI:: l NO.R'l'HWt:S'l'EKLY ALONG .'rl~a,; MI!.AIf Hlell
WATER LINt: OFSAlII l~l.ANIJ nut" ^ O\STANCK 01" 12~ FE&"!.TO THIl: t'OINT C
BEC1HNJNQ 01' 'm!:: I\I.R~:lN 1)/':SCK11~t:O LINE; TIit::NCE HEANOJ::K SOUTIlJ::AS'l'EIII
AND "'ESTERLY AI.IlNII 'rln: MI':AN 11I!;H WAn:R 1.111t: 01" SAID. ISLAND t'OR A. .
DISTANCE or 4S0 1'1';1." 'I"IJ 'l'lm I':rm or TilE I\t:RIi:IH Ilt:SCtUbt:U LINE:"
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8IL!INSUMBE:~G SAENA I=lRICE: & AXELROD LLP
A ~""'TNER.M'P OP'.~"orE..IONAL .....aoc:lATION.
. eoc SOUTH BISCATHE eOULEv...t;tC. BUITC.I:800. MIAMI, "LORIDA 3.:s131-a~
TltU:.F'HONE: 13C?S' 3'7+7eao . FAX: ~O.U 37"'7.~
It"",,,"..: IN'O..n"zIN.CO,", . WWW..~LZIN.COM
Brian S. Adler, P.A.
Dl,.cr DUi/: (305) 350-2351
Dlrll:/ Fax: (305) 351-2206
EmaU: b.dler@biWn.CI)/O
,
March 2, 2005
VIA FACSIMILE
David Wolpin, Esquire
Weiss Serota Helfman et aI.
2665 South Bayshore Drive
Suite 420 .
Miami, Florida 33133
Re: Lincoln Poinie .
Improvement on Driveway 0" Adjace"., Property.
Dear Mr. Wolpin:
I attach for your further review a c~y of the case ofCiivNational B~.ofMjami v.Citv,
of Coral Snrin2S (475 So.2d 984 Fla. 4 DCA 1985). We researched the attached case to
confirm it" remams good law in the State of Florida. .
. The anaclied CBSe is instructive on two levels. First, the CBSe stands for the propositiOn .
that certain conditions are more properly imposed during.the planing process. As noted in my.
prior correspondence, the property was preViously planed and therefore any "onditions .rehitcd to
the driveway would have been properly..addressed during approval of the plat. which is valid and
remains in effect. . ,
What is more instructive is the second proposition where the ilial court held ~vaiid ..
condition requiring improvement of an adjacent roadway prior to issuance of a building permiL .
. Specifically, tbe condition requU:ed: . . .. . . . . . .
No building permit for collStTUction will. be. issued until Royal
Palm Boulevard has been improved (widened) to a four (4) lane
roadway in the area .immediately adjacent to this plat. ..
.The court found that to include .such a condition without any indication lis to when or if ..
said portion of th~ roadway would be 4-laned was in the nature of a building moratorium ...
.,
MIAMI 862742.1 7$2420873
193
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, 131~~'I.N SUMIlERG BAtNA PRICE & AXELROC LLP
.
'.
David Wolpin, Esquire.
Marth 2, 2005
Page 2
..
. directed to a specific parcel ofland BI1d without meeting aby of the fonnal requii-enients for wch
moratorium. M such, the court held the condition invalid.
In the instant matter, the proposed condition is even more egregious as it ii outside of ~e
ownership. or control of either the City or the applicant, and therefore, there is no indication .when .
or if the adjacent ~adway could even be expanded. . .
Based on the foregomg, We respectfully request the City. of A ventura not condition
improvement of the adjacent private roadway as a prerequisite to administrative site plm
approval for the subject property or issuance of Ii building permit
Thank you for your ancnlion to tbe foregoing. Should you have any questions regarding
tbe anached, please contact.me at (305) 350-2351.
BSAlph
Very truly youn;,
"{? ?-Y7 ~
Brian S.o~
cc: ...Eric Sorok~ City Manager. (via facsimile)
Joanne Carr (via facsimile)
Tom Brinkley (via facsimile).
StanleyB.Price, Esq.
..
. MIAMI 862742.1 7~92420873
194
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475 So.2d 984
475 So.2d 984, 10 Fla. L. Weekly 2169
(Cite as: 475 S0.2d 984)
C
/ . District Court of Appeal of Florida,
Fourth pistrlcL
CITY NA 1l0NAL BANK OF. MIAMI, as Trustee,
Petitioner,
v.. .
CITY OF coRAL SPRINGS, Florida; Respondent.
No. 85-678.
.Sept. 18, 1985.
Rehearing Denied Oct. 14. 1985.
BIlIllc, as tnlStec. .sougbt ceniorari and mandamus
regarding conditions imposed by city for approval
of plat. for location of convenience store. The
Circuit Coon, Broward County, Linda L. Vitale, J~
approved in part and disapproved in . part city's
~olutiOD which approved proposed plat subject to
three conditiollS. Bank p.<titioned for Writ of
certiorari. The District Coon of Appeal, Hersey,
CJ~ held. that: (1) city validly imposed conditiOD$
rcquirins ten. fOOl buffer strip of landscaped area
along one boundary of plat and requiring entrances
and exits to permit ngbt turn only. end (2)
conditioning Issuance of building. permit upon
imprnvement of adjacent roadway to foudanes was
. appropriately stricken by trial coun.
Ceniorari denied.
West Heaclnotcs
{l] Administrotlve La.. and Procedure C:=763
1 SAk763 Most Cited Cases
Scope of review to be utilized by District Coun. of
Appeal considering order of circuit coun emered 011
review of administrative action is limited to
determination . of whether circuit coun afforded
procedural due process and applied corrccl law.
U.S.C.A. Const.Amend. 14.
12] Zoning and P.lanning C=>375.1
414k375.1 Most Cited Cases
. (Fomierly 414k(75) . .
Once a party compli~ with all legal requirements.
..
Page 2 of4
Pap 1
for platting. there is .no discreriou iD &ovenlmeui
authority to refuse approval of the .pIat.
13] 7.onlng and Planning. (;=382.6
414k382.6 Most Cited Cases
. (Formi:rly 4141<382.1)
City validly imposed as condition of approval of
proposed plal. for convenience store a ten"fOOl
buffer strip of landscaped area along one boundary
of the plat, as rCBSonable. application of section of
eity's code of ordinances.
14] 7.onln& and Planning (;=382.6
414k382.6 Most.Cited Cases
(Fmmerly414k382.1). ..
City's condition for approval of proposed plat for
convenience store, thai all entrances and exits
indicated on the plat would be labeled "RIght Tum
Out Only," was validly based upoa legal.
requirement that applicant demonstrate that then:
will be safe and adequate acc... to. ara sought to
be plallcc!.
15] Zoning and P.lannlng (;=3823
4i4k382.2 Most Cited CaseS
15]7.0nlng ond Planning C:=436.1
414k436.1 Most Cited Cases
(Fonnerly 4l4k436)
City's condition for approval of proposed plat. for .
convenience store, that DO building penttlt for
consnuction would be issued unul adjaeent road
bad been improved to four.lane roadway, was In
nature of building moratorium directed to specific
. parcel of land without. meetin& any of the formal
requirements for such moratorium, and as such, was
appropriately stricken by trial coon, and provision
of trial coun's order penninin& funher hearinp as .
to whCthcr the condition could preclude land_
froni my rc&Sonable use of .its pro~ indefmltely
was proper dctennination. .
161 Administrative Law and Procedure C:=683
15Ak683 Most Cited Cases
Whether or not holding of circuit court Is supported
by subsllintial competent evidence Is Dot
appropriate inquiry by District. Court of Appeal 011.
ceniorari review of administrative actlOll already
reviewed by way of ceniorari in "the lower b1"bunal: .
DistricI Coun Dr Appeal revieWs evidence
presented to circuit coon, and only when order or .
o 2005 ~omsonIWtsl. No ClaiM to Crill. U.S. Govt. WorIcs.
195
.!......lln""' n......1.'" r.nm/dp.1i~r:rv .html?de"r-,atn&format=HTMLE&dataid=B00558000000... 2/4/2005
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475 So.2d 984
475 So.2d 984, 10 FIa. i.. Weekly 2169
(Cite as: 475 So.1d 984) .
judgment has been. entered without any e~mpetcnt
evidence mil)' District Court .of .Appca\ fDld
deputure from essential requiremenlS of law. 011
basis of evidence or lad of it.
'985 G~ L Knight of Gustafson, Stephens,
Feni.s, Forman &. Hal~ 1'.A. Fort Lauderdale,. for
petiliOllCl'.
. John .M. Wynn of Paul J. McDonough, P.A., Coia1
. Springs, for respondent. ..
HERSEY, Chief Judge.
By petition for writ of ceniOIari we. = as1ced to
lCVicw an order of the circuit .coun approving in
part and disapproving in part a resolution adopted
by rC!Jloodent city whieb approved a proposed plat
subjoc\ to three conditions. ... .
On approval of a plat for a Stop.N-Go market to be
localed on Royal Palm Boulevan! in Coral Springs, .
Florida, the city commission imposed the following
conditions: .. .
1. A ten (0) fOOl buffer strip Qandscape area)
will be included 01\ the plat along ilS
northwenerly bouridary;
2. AD entrances and ""ilS indicated on the plat
wt1J be labelled "Rigbt Turn Out Only';
3. No building pennit for construtlion will be
issued until Royal Palm Boulevard has been
improved (widened) to a four (4) lane roadway in
the area immediately adjacent to this plat. .
City National Bank of Miami sought. ceniorari and
mandamus in the circuit coun wbich upheld the .fim
and scc:ond conditions and forth", dircc:ted the city
to "delete condition. No. 3 or provide forther
hearing on said issue." Th. blllk then filed ilS
petition here for further review.
[1] The scope of review to be utilized by a district
coun of appeal coosidering an order of the circuit .
coun entered on review.of administrative action is
limited. to a detennination of whether the circuit
counafl'orded procedlU"a1 due process and 'applled
the cllrTctl law. City of D..rji./d B.o~ v. Voil101lt,
419 So.2d 624 (Fla. 1982); Cherou. CMlSMd
Ston.. Inc. v. City qf Miromar, 421 So.2d 6g4 (FIa.
4th tlCA. 1982). No issues an: raised. based upon
failure of the cirouit court to afford procedural due
process; thus, the sole inquiry is whether the
.
Pasc ~ of4
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correct law was applied.
121 It is c\.ementary that once a part)' eompliea with
all legal requirements fill" plattina there .11 DO
discretioa in govemmeat authority to. refbae
approval of the plat. In Broward COIlI'IIy v. N_
R'G!ty, Inc., 359 So.2d 509 (FIa. 4tb DCA 1~8), .
the proposition was explained in. the followiD&
language: .
AU persons simllllTly situated should be able to
obtain plat .approval lIpoII meetiD& unlflllDl
standards,Otbcrwise, the official approval ~a
plat application would depend UpOD tbe whim or
caprice of the pubUc body iDvolvcd. Yf)Idcy. ill
'986 his work; Law.of SubdivisiODl, I 52, stat..: . .
"Thus,. while. public policy rcqulrcs munlelpal.
eontrol of sueb i1evelopD1eDt; nevertheless, the
authority. of a tOwn to deny a laudownu 11Ie "sbI
. to develop his property by refusing to approve the
.plat of sueb development iJ. by statute, made to
rest upon .pecflic stondards qf 0 SIGN". or
imp/.m'Ming ordJnGflCa, Thereafter, . die
approval or disapproval of the plat on the basis of
controlling standards becomes au administnltive
act. "
Likewise, iD Section 53 of die same work, the
author states: .
"When the natutcs and ordinances have bccu
complied with in making a plat of a subdivision,
the active apptoval by a village board hu bCCD
held to be ministerial, and sueb act may be
. enforced by a wn. of mandamus.'
~
Id. at 5 I 0 (emphasis added);
The petitioner's position Is. that aU lepI
requircmeDIS were met inasmuch as the city
commission" additional requiremcrits were not
properly promulgated staudards and .therefore wen
not legal. Respondent city poiDlS out the existeisce
of cenaiu standards made applicable by virtue ..of lIS
home rule powers, in additiOll to the .Iandscape
standard contail!ed iD a city ordinance applicable to
condition one. Su SCCliOll 166.021, Florida
Statutes.(1983). ..
[3][4] We hold that condition one Is validly
imposed as .a reasonable application of sectlOD
20-513 of the Code of Ordinanc~ of the. City of
Coia1 Springs. ConditioD two is similllTly valid
based upeD the leg.al requircmcilt that UI applicant.
C.200S ThomsonlWest No Claim to Orig. U.s. Govt. Works.
196
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~7 5 So.2d 984
~75 So.2d 984, 10 Fla. L. Weekly 2169
(Cite .,: 475 So.1d 984)
Pace 3
demonstrate thoI there wnt be safe and adequate
ICCCU to l1!e area sought to be platted. Broward
. CoIIIII)I Y. CorGI Ridge Propei1ie.s, Inc., 408 So.2d
W(Fla. 4th DC!> 198\).
. The circultcoun held the third condition invalid 011
lbe basg that
The Coun simply fmds that 10 include such .
condltioil an the plat without any indication in the
retorcI as to when or if said portion of the
roadway will be fciur.laned could preclude 1be.
IlIldoW1ler tom any reasonable use of owtiel'l
property indefinitely. CITY OF CORAL
SPRlNGS accordingly <lirected to delele
.condltion No.3 or pi-ovide further bearing 011 said
issue. ..
[5] Condition three was iD the nature of a buildina
moratorium directed 10 a specific parcel of land and
"ithOUl meeling. any of the formal requirements for
such . moralorilllll. AI such .il. was appropriately.
strickCIL The provision. of . the . order pcrmiuina
further bearings on this Issue was a proper
delenninatlon, Pog. Y. Lin.., 150.:F1a. ~33, 7 So.2d
599 (l9~2). the conn thereby granting panial relief
by wa)' of manclamns.
(6) Wbether:or DOl the boldina of the circuit court
was supponed by subStantial compelent evidence Is
nOl an appropriati ipquiry by. Ibis conn on. ccrtionri
review of' administrative action I!'lrcady reviewed by.
wa)' of ceniorari in the lower lribunaJ. We review
the evidence presented to the circuil conn. and <ioly
wben an order or judgment bas been emored
witbOUl any compclenl evidence may we fmd .
departlU"C from the essential requirements of the Jaw
on Ibe basis of the eviden,," or. lack. of. iL I'indina
DO such deficiency ben: we decline to grant
ceniorari. .
.,
CERTIORAlU DENIED.
DELL and BARKETT, JJ~ concur.
END OF DOCUMENT.
02005 'IbomsonlWesL No Claim to Orig. U.s. GoVl. Works.
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81LZIN $UMBERG 8AENA PRicE & AXELROD LLP
. .... ........TNC".H... O......Cl..~!I'ONAL. ....aoc:lATIO...
zoo SOUT... IlISCAYNE 80ULCVAftD, .urn:: eaoo. M..,.,MI. ,....ORIDA 33131"'~
TELC~HO"E: (:toa) 1I'.....'.ao . FAX: <:toe) a'....'..J1
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E-MAIL: IN'OeIlILZIN.COM . WWW.8ILZIH.COM
Brllllr So Adler, P.A. .
Dlrut DUd: ~OS) 3s"o.23S1
. Dlrut Fax: (30S) 3S1-2206
. EmoU: bodlu@bU:Jn.cllftl
MaTch 16,2005
. VIA FACSIMILE
David Wqlpin, Esquire
Wei$s Serota Helfman et al.
2665 South Bayshorc Drive
Suite 420
Mlaini,F1orida 33133
Re: Lincoln Pointe
Driveway on Adjacent PropeTl)l
DeBT Mr. Wolpin:
This firm representS Lincoln. Point.c in connection With .the application for. site. plan
approval on the proper!)! located at ] 7900 NW 31" Court in the City of A ventura. In furtherance
of.the argwnents espoused in our two prior leners as to why improvement .ofthe private adjacent..
driveway should not be required as a condition of $it.c plan approval for the Lincoln Pointe
property, we asscn the following. . ..
On Marc1i 31, 2004, our office proVided the City with a letter detailing the history of the.
z.oning approvals on the Lincoln Pointe and alljaeent Biscayne Cove properties. As part of the
docwnents provided to the City, we illustrated that the original Lincoln Pointe property was
approved to .be developed with a total of 659 units, which consi$\ed of 624 .Condominium units
. and 35 townhouse units: : I have attac~ed a copy of our march 31, 2004 letter (wit,hout
attachments) for your ease of reference; . ... .
One. of the jUstifications raised by the City of A ventura in colinection with potentially
requiring improvement of the adjacent private driveway for any redevelopment of the Lincoln
Pointe property is the potential increased traffic based on the proposed site plan. It is our
understanding that the .City's position is that .the private driveway was not constructed to.
accommodate the proposed vehicles. As noted in our prior lettcis, the driveway was planed as a
separate parcel and accepted ~y the governing municipal body. As illuStrated in our March 31,
2004 correspondence, the original approval, as pJalled~ and the original entrance road easement,
. MlAMJ 86641'.1 "92420873
198
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David Wolpill, Esquire
March 16,2005
Page 2
as platted, was approved to access 659 units on the Lincoln Pointl: property . and 659 units on the.
Biscayne Cove property.
Therefore, we respectfully submit that the subject Lincoln Pointe property is...
grandfathered lot of record that was approved for access for 659 units to Linco]n Pointe. The
proposed development is seeking to "develop 20% less units than originally approved for the
property. .
BBSed on the foregoing, and cumulatively based on our prior letters dated March 2, 2005,
~ebniary 7,2005 and March 31,"2004, proposed conditions on the improvement of the driveWBY ..
n not legally justified. Thank you for your attention to the foregoing. .AB always, I may be
reached at (305)350-2351. .
v cry truly yours,
BSA/ph
co: Joanne Carr, CitY Planner (via fac$imile)
Eric Soroka, City Manager (via facsimile)
Tom Brii1k1ey(via facsimile)
Claudio StiveJman (via facsimile)
Stanley B. Price, Esq.
"
MIA~I 866415.1 7592420873 .
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IP0022221P 1:2B'i'0"lOS"l1,1:
OB S"lOO SOB"ln"
~TE:04/14/05 CK':2222 TOT~:$650.00""~ BANK:SHEOPERA
PAYEE:CITY OF AVENTURAI~ITYOFAVI
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SHEFAOR OPERATING ACCOUNT
Property Account
SHEFAOR 1330
Invoice
Description
.04142005
LINCOLN POINTE ADHIN~ APPEAL FEE
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200
Amount
650;
650.
. '031:2,,/2904 12:09
30546f l6
I.JPTO.oJN MARINA 1"5
PAGE 02
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City of
A ventura
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P,>;- 'l(~
~''',. .{ & ,,~co
Government Centc:r
19200 West Country Club Drive
Avcntura,F1oridra33180
March 11, 2004
l- M. 1'u.aDtP
.MA~
Claudio Stlvelman
. Planinvest Inc.
2999 NE 191 Street
A.ventura, FL 33180
Re: Lincoln Pointe Apartments
17900 NE 31 Court, Aventura
Falla Number 28-2210-050-0020
Co~
ZavAl'~
J"~ L IlmaN
XII< CollIN
lloa~
HA..... IioI.DaIlO
lMNHr OaDSMAN
li.uc M. Soocl<A
em MAw.oo.
Dear Sir:
f}
Further to your telephone request, this wlll confirm that the above noted property
Is zoned RMF4 (Multi-Family H!gh Density Residential District) according to the
City's Land Development Regulations. The maximum density in this zone Is 60
dwelling units per acre. A copy of Section 31-143(f) of the Code is enclosed for
your reference. The land use designation is Medium-High Density Residential
according to the Future Land Use Map In the City's Comprehensive Plan.
The parking .requirements for residential multi-family developments are contained
.In Section 31-171 (b)(3) of the City's Land Development Regulations. A .Copy of
this section is enclosed. One and one-half parking spaces are required for each
efficiency or one bedroom unit. Two parking spaces are required for each unit.
with two or more bedrooms or one bedroom unit with den or study. In addition,
multi-family buildings over 35 feel in height or with more than 20 dwelling unIts
require guest parking equal to a minimum of five percent of the spaces otherwise
required. The minimum size of parking space. is 9 feet wide by 18 feet iong.
According to the Miami-Dade Property Appraiser, the lot size Is 382,021 square
feet or 8.769 acres. The maximum density at 60 dwelling units per acre would be
526 units. This lot area would have to be confirmed by survey. Development of
the maximum number of units Is also subject to the site development criteria of
the RMF4 district along with all other requirements of the City's Land
Development Regulations. There may also be additional use and site restrictions
as a result of legislative resolutions, restrictive covenants, platting or sile plan
approval conditions, or other items recorded In the public records. .
'1
PHONE' 305-466-8900 . FAX: 305-46~939
www.cltyOfs.IICnturs.com
201
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PAGE 03
The City records contain a paving and drainage plan from 1980 showing ..
development of this parcel and the Biscayne Cove parcel to the north. It appears
that some surface parking may be shared between parcels on this plan. It also
appears that the Blscayne Cove development, on Tracts C and F of the Plat of
AdmIral's Port Section One, Plat Book 113, Page 51, was developed Vl(ith 592
units, or 116 units more than permitted by the then existing County Code, which
was 50 units per acre. Therefore, the parcels may have transferred densltles
between themselves and this would have to be further investigated.. If 116 units ..
were transferred from Tract 0 (Lincoln Pointe) to Tracts C and t= (Blscayne
Cove), this would leave a maximum density for Tract 0 of 410 units (526 @ 60
units per acre minus 116 units transferred to Biscayne Cove).
Please do not hesitate to call me' at (305) 466-8940 If you hav.e any questions.
tJL
Joanne Carr, AtCP
Planning Di~ector
C.c.: Eric M. Soroka, leMA-eM
City Manager
202
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30546r '6
IF'To..JN MARINA. TS
PAGE 04.
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LAND DEVELOPMENT REGULATIONS
f31-143
structures within 300 feel as well as a landscape plan prepared by a Florida licensee!
architect or landscape architect and other .supllOrtUtI documentation u deemed .
necessary by the City Manager or designee. .. .
(I) Midtifami1y Hich. Density Resuuntial Dlstru:ts (RMF4). '!he following regulations shall
apply to all RMF4 District$.
(1) Pu~ of districts. Tbe purpose and intent of this district is to provide suitable s.it.
for the development of welllltanned, environm.entally eompal:1"ble meclium-bij:h den-
a1ty multlfamily residential use in areas consistent with the City's Coll\prehens1ve
Plan Future Land Use ElemfUlt. Densities shall not eneecI. 60 unite per cross acre.. .
(2) UIiU permitted.. No buildin.g or slnlcture, or part thereof. shall ~ erected, altered ~
used., or land used in whole or part fur other than one or more of the fonewing specific
uses:
~
L All uses permitted in the RMF3 District.
b. High rise apartments.
Co All uses permitted in the CF District.
d. Publicly oWned recreation buildings and facilities, playgrounds, ple.yfields and
parks.
e. ALF.
r. Uses accessory to any of the above uses when located on the same. plot.
(3) Site dcllewpm.ent sto.ndarcU.
L .Mlnimum lot area and width:
1. D.uplexcs. townhouses. low-and mid-rise lapartmentsl: M required In the
RMF3 and RMF3A Zoning Districts.
2. Hil:b-rlse apartments: Not less than 100 feet in width and 16,000 square
feet in plot area.
b; Muimum hei,b.t:
1. Dupl_: Two stories or 26 feet..
2. 'Illwnhousec: Three stories or 36 feet..
3. HIgh-rise apartments: 40 storlas or 400 feet.
Each proposed building or structure which exceeds 100 feet in height shall be
designed and situated auch thst the shadow ~ated by the sun at 12:00 noon 011
DeeetU~l' 21 (a sun angle or 41 deenes) wm not fan on any adJacent propq
except for public road rights-of-way. Shadow studies shall be pr:ovided to the
Community Development Department.
Co Plot coveral:e; The combined plot area coveted by ell principal and accessor,y
buildings ..hall not exceed 40 percent of the area of the lot.
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CD31:69
203
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t 31-143 AVENTURA CODE
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d. Setbacks:
1. PWnt yards: Minimum of 25 feet In depth.
2. Side yards:
i. 'Ibwnhouse and duplexes: Principal structure, ten feet-Upon COl'lW'
plots in all :LDnil1l: districts included In this section thero sha11 be ..
front yard as herein specifiecl, and in addition th~, a side yard at
least 20 feet in width on the side of the plot abottin&' on the side.treet.
it Low-, mid- IlJld high-rise apartments: 25 feet in depth.
8. Rear yards: Minimum of 25 feet.
a. Minilllum distances between buildings: Primary use bw1dings shall be separated.
. by at least liD feet at the closest point Dr by the sum of the building helchts
divided by two, whichever is greater.
f. Minimum floor areas: The minimum floor area not includ~ garage or
unairconditioned areas shall be as follow,:
Multiple-family dwelling unit:
Elliclency unit: 800 square feet.
0"" bedroom unit: 900 square feet.
Two bedroom unit: 1050 square feet.
For each additional bedroom in excess of two add 1150 square reet.
Efficiency units shall not exceed 20 percent of the total number ofmuts within a
building.
g. Minimum open space: 49 percent oC the total lot area. Said open space ahall be
unencumbe>:ed with any structure or off-street parking, and shall be 1aXIdscaped
and "'ell maintai.o.ec1 with grass, trees, and shrubbery.
h. AuessibUlty: All multi-family development projects within the zonine district
shall prD"ide a walkway that links buildings and parking areas to onslte
amenities.
.
L Floor area ratio: The floor area ratio shall not exceed the foUowi.nE,providad,
bow ever, that structure parking shan not count as a part of the floor area, bp.t
shall be counted in computing building heilbt.
.~
Heiaht of Buildine .
1 story
2Btory
8 story
.. story
5 cto1:y
6 story
't story
Floor Ana &tlo
0.40
0.60
0.80
1.00
1.20
UO
1.60
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CD31:70
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PAGE 116
LAND DEVELOPMENT REGULATIONS
f 81-144
Hel8ht of Building
FlDor Area Rotio
8 story 1.80
9 story or over 2.00
(4) Abovtground ItoTVoiJe tcw. Abovefl'Ound storage tanks (AST) are pennittecl. as a
conditioo.al use onJ.y as an aceessol')' use and onJ.y for the purpose or 8torinr fuel fOr
emergency cenerators. ABTs JI1ust conform to the followi.nlr requirements:
.. Be of 550 e-allons capacity or less.
b. ~ instaIled and operated und.... a valid pennit from. the Miami-Dada COunt;y
Department or Environmental Resources Man.agem.eut.
Co lle fully screened by a masonry or concrete wall with a self-closing and I()('''''\r
lneUll door or gate. Such wall shall be landscaped in accordanee with the Oil;Y'.
Landscape COOs.
d. Be located in a JI1anner consistent with the site developm.ent standardaof the
RMF4 zoning district.
In$tal1ation of e..n.y AST shall require a building permit frOlJl. the City. AppUcation for
bundini permit .hall be accompanied by a site plan indiestin&' the location oftheAST
relativ-e to property lines, the primary structure seNe<! by th~ AST, ~ other
structures within 300 feet as well as a landscape plan prepared by a Florida Ueonsed
architeet or landscape arcbite<:t and othel'. supporting documentation as deemed
necessary by the City Manager 01' daai&nae.
lOrd. No. 99-09,.~ 1lExh. A, f 703), 7.13-99; Ord. No. 2000-08, f 1,4-4-00)
See. 31-144. Burin.... Zonln!r Districts,
, (a) Purpose. Tbese bllBiness districts are intended to pmvide for co=ercial development In
conformance with the Comprehensive Plan and provide for a variety or :r.oning districts to
accommodate the City's business and eommerce needs. 'nIese Ullung districts may be appUecl
to land designated Business and Office and IndustrialllUld Office on the City's Future Land
Use Map, however, the llBes within this district shall be c:onsistent with, but ma,y be 1D0J:'e
restrlctive than, the eone.sponding Bu,slness and Office and Industrial and Office catearory
permitted uses.
(b) Nel8hborhood BIl$ln...u (Bl) District. This district is intended to provide primari1;r for
retail sales and services to a surrounding neighborhood. Retail stores permitt.ecl therein are
intended to include primarily convenience !roods wbich are usually a daily ~l.ty rOll' a
l"esidentlal neighborhood. Tbe dlstriet is. appropriate Cor location on a collector or an arterial.
roadway.
(1) UkS permittee!. N~ building orlrtrueture, or part thereof, shall be erected, altered or
used., or land used in whole or part for other than one or more of tbe following sPecifie
uses provided the requiremenbl Bet forth elsewhere in this section ~e satisfied:
a. Grocery stores and pharmacies with each ston limited to 2,000 squat'll feet of
total ROOt area.
S..pp. No. B
CD31:71
205
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PAGE 117
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131-171 AVENTURA CODE
b. &:tuior q>a.cu. Each dweUing unit shall Provide a minimum of one wienc1o&ed
parking apace. Dwelling units with folll' or more bedrooll18 .haD Proride two
Wle.ncl~ parkiu,g apaces. P~k.in( Ilp8ces ahal1 DOt be located .0 as to .r'equJre a
parked vehi<:le to interl'ere with sidewalk travel lines.
(3) BesUklltial multi-family.
&. 1 V. p~ spaces shaU be proVided Cor each eflicieo"T unit or OJW bec1room ua1t.
b. Two parldDg spaces aball be provided fOf each unit with two or more bedrooll1.l or
one bedroom. unit with de.n or stu4.Y.
Co In addition to the above, m ultiple-famiJ;y buildioga of over 36 feet in beicbt or
with more than 20 dwel1irlg unite aball be required to pnrvide BUppleme.ntaI IU8lIt
parkillg apace equal to a minimum. or 6ve ptlr'ceAt of the .paces otherwiee
required.
(4) Other I'CcUkntial buildJn&a.
a. Do~ria, {ratl!.miliu: One parltinr apace tor each bed.
b. Boteu. CIld /71(Jteu., including club.: One parking space for each sleeping room. I(
in addition to slB<lping rooms, there are nther uses operated in lXloJunetiOD'1Iith
and/or as put or the hotel/motel, additional off-street parking spaces ahall be
provided for sueb other uses as would be required by this section ifsuch uses were
separate from the hotellmoteI to the extent ot:
1. 85 peroen.t of the requ.ired off-street parking for retail stores, omcee,
services, establishments, bars, restaurants, dining rooll1S, nlrht clubs or
eabarets.
2. 60 percent or the required otr1treet parking fbr conference laclllti..
ballrooms, banquet baUe, meeting rooma or auditoriUDlL
Co Howln,r for e/d.erl)' req~ llttk or 110 sJ>CCi4l care, includbJ6 retWiIwat
communltia or adult I'EtircIMIlt lXlrnmunitia.. One parking !pace tor each
dwelling unit pIuS one space for each emplo,yee on the dllJ' shift.
It Howin8 for elduly or aIM,.. reqwrinc tnod.e~ s~ care, inc1udl'Yl czdult
colIQN.lfate lWlnJl /aci.litia, auis~ ~"lnJl /acilitiu, -Nkd cere (adlitiu tul4
lon;:-krm Ct1t"t /ac11.itia: One-half or ODe 8pace pel' bed plus one apace wr each
employee on the day shUt,
e. HOlUlin8 for t~ elduly Ol" otlw,.. T'efJU.irinc -Il$iw special mre, incl~
NJrsl1l<< home. and ~pi.t:a: One-lWr parking apace per bed and one parking.
apace per employee on ~ shift.
r. 1~ lWln;: /acUilks {or ~ eltkrly incorpo~ multipk ccrr enl/iron-
I1lentB, 1tIClud.in8 continuitlg Ct1t"t r-eW"mellt ~ Parking nquirellll!Dta
to be c:a1culated from individu.s1lXlmponenta based on e. throagb. e. above.,
Supp. No. 4 C031:110
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BILZIN SUMBERG 8AENA PRICE & AXELROD LLP
A PARTNERSHIP 0,. PRO"ESSIONAL ASSOCIATIONS
eoo SOUTH BISCA,YNE: BOULEVARD, SUiTE 21500 -. ""lAMI. P'LORIOA 33131-153040
TELEPHONE: (30S) 37<4-7580 . I"A.X: (308) 37<4-7583
Briu S. Adler, P.A.
Dinct Dial: (305) 350-2351
Dinct FIIX: (305) 351-2206
Emllil: badle1@biWn.com
E.MAIL: INFOOSILZIN.COM . WWW.BIl..ZIN.COM
March 31, 2004
VIA HAND DELIVERY
Joanne Carr, Planning Director
City of A ventura
. 19200 West Country Club Drive
4th 1'1oor
A ventura, Florida 33180
Re: Lincoln Pointe Apartments
Dear Ms. Carr:
In connection with your letter dated M~ch 11, 2004 addressed to Claudio Stivelman at
P1a.ninvest, Inc. regarding the Lincoln Pointe Apartments located at 17900 N.E. 3101 Court,
A vc:ntura, Florida, our office has conducted a. search of the zoning history on the subject
property.
Your letter indicates that there may have been a transfer of density between the Lincoln
Pointe property (Tract D) and the Biscayne Cove property (TractsC and F). This statemeiJ.t was
based on the fact that Biscayne Cove was developed with 592 units, which exceeded the then
existing County Code, which permitted 50 units per acre:
Biscayne Cove was built in 1981 and Lincoln Pointe was built in 1991. The properties.
were designated RU-4A at the time of construction and, therefore, we understand how the City
arrived at the possible conclusion that the properties were limited to 50 units per acre at the tiIDe.
of construction. However, the units were actually being constructed pursuant to a 1968 zoning
approval through Resolution No. Z-267-68. This zoning approval rezoned a substantial portion
of what is known today as the City of Aventura, and covered properties from N.E. 163 Street to
N.E. 215 Street east of Biscayne Boulevard. Attached for your review is Resolution No. Z-267-
68, which encompasses substantial portions of Sections 3 and 10 in Township 52, Range 42.
At the time of the approval, the development was governed under the then existing RU-
4A provisions of the Miami-Dade County Code that were adopted pursuant to Ordinance No. 57-
19.
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alLZIN SUM BERG BAENA PRICE &. AXELROD LLP
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Ms. Joanne Carr
Planning Director
City of Aventura
Page 2
March 31, 2004
On December 5, 1972, after the Lincoln Pointe approval, the Miami-Dade County Board
of County Commissioners adopted Ordinance No. 72-92 which revamped the RU-4A district and
instituted the 50-unit per acre density limitation. Prior to the December 5, 1972 ordinance, the
RU-4A district was more closely related to square footage of the units as opposed to astrict
density limitation. The actual density was permitted at up to 67 units per acre based on the
square footage of the proposed condominiums. Attached for your review' is a copy of the
November 1, 1972 memorandum from Reginald Walters, the then Executive Secretary of the
Miami-Dade County Planning Advisory Board., to the Miami-Dade County Board of County
Commissioners, that accompanied the ordinance amending the RU-4A district. This
memorandum addresses the proposed modifications to the RU-4 and RU-4A districts, and
rcco=ended the 50 dwelling units per acre density cap. Specifically, under Reduction of
Densities, the memorandum details:
The new districts permit a maximum of 50 units per acre for
apartment development and 75 units per acre for hotel and motel .
development replacing the existing district which permits a
possible 67 units per acre for apartment development and even a
higher number of units for hotel and motel.
Because Resolution No. Z-267-68 was approved prior to the 50-unit per acre density cap,
. and is the resolution governing the Biscayne Cove and Lincoln Pointe properties, Biscayne Cove
was able to achieve the 62.18:1: units per acre at the time it was constructed in 1981. In fact, it
appears that both the Biscayne Cove and Lincoln Pointe properties were approved to have 659
units each, with a 304-unit 27-story tower (maximum height of 290 feet), a 320-unit 21-story
tower, a 35-unit townhouse development and a parking garage. I attach for your review a copy
of the portion of the site plan depicting the Biscayne Cove and Lincoln Pointe properties.
The Lincoln Pointe property was constructed pursuant to a substantial compliance
approval issued by Miami-Dade County on June 26, 1989, said substantial compliance approval
being in compliance with Resolution No. Z-267-68.
Therefore, the density enjoyed by the Biscayne Cove development was not based on the.
transfer of density from the Lincoln Pointe property, but actually from the approved Resolution
No. Z-267-68, which predated the 50-unit per acre density limitation, and less than that permitted
under the governing approval.
Based on the foregoing, we respectfully request the City to issue a replacement letter to
the March 11, 2004 correspondence regarding .Lincoln Pointe, which permits the property to be
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
Ms. Joanne Carr
Planning Director
City of A ventura
Page 3
March 31, 2004
developed, subject to any declarations or limitations of record, in substantial compliance with the
approved plans (with 659 units) or in accordance with the current City Code.
Thank you for your attention to this request. Should you have any questions or require. .
additional information, please contact me at 305/350-2351.
Yery truly yours,
~~. =
Brian S. Adler
BSA/mp
Enclosure.
Cc: David Wolpin, Esquire
ClilUdio Stivelman
Stanley B. Price, Esq.
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AFFIDAVIT
STAlE OF FLORIDA
)
) ss:
)
COUNTY OF BROW ARD
BEFORE ME, the undersigned authority duly authorized to take oaths iIi this
State and County, stated above, this day personally appeared James M. Cauley, Jr., who
has first been duly sworn, and deposes and states:
1. My name is JAMES M. CAULEY, JR., I am over the age of eighteen (18)
years and have personal knowledge of the facts contained herein.
2. I am President of Tarragon South Development Corp. ("Tarragon").
3. Shefaorrrarragon, L.L.L.P., a Florida limited liability limited partnership
("Owner''), an affiliate of Tarragon, acquired the property known as Lincoln Pointe on
the 19th day of August, 2004, pursuant to a Purchase and Sale Agreement dated the 27th
day of February, 2004. A true and correct (with deletions) copy of that contract is
attached as Exhibit "A'').
4. Since the time of the acquisition of the property, Aventura Tarragon OP,
LLC, a Florida limited liability company, Aventura Tarragon LP, LLC, a Florida limited
liability company, and Shefaor BH, LLC, a Florida limited liability company, the partners
of Owner, have expended the sums shown on Exhibit "B". These expenditures were
made in good faith reliance upon written assurances of the zoning and permitted density
of the redevelopment of Lincoln Point and include both hard and soft costs incurred and
ULincoln PointelContractlAffidavit of James M. Cauley
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8-31'()S
210
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paid by such parties in acquiring and moving forward with the anticipated development
of the property.
5. In addition, and in good faith anticipation of the redevelopment of 'the
Lincoln Point property, this rental property had leases periodically coming up for
renewal. Due to the pendency of the redevelopment of the site, those leases were not
renewed and for approximately 8 months, the occupancy rate of the site effectively was
under 50%. As a result, Tarragon suffered substantial economic losses.
Executed in Broward County, Florida on )e;sr: ~ 2005.
FURTIffiR AFFIANT SA YETH
NAUGHT.
Sworn and subscribed to before me
-:J ~ who [vf" is personally
day Of~2005 by
known to me or [ ] who produced
as evidence of identity.
. J vJj]Lt I J . tlat{, .(Il_
~YPUBLIC
Name
My Commission Expires:
~a\. Kalhloen S MI_
. ~ . MrCommiuionOO17l1071l
'\t.~ fJlpirM Man:II 011. 2007
ULincoln Pointe/Contract/Affidavit of James M. Cauley
Vcr 1
8.31-05
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EXHIBIT
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "A2I'eement") is made as
of April 21, 2005 ("Effective Date"), by and between AVENTURA TARRAGON GP,
LLC, a Florida limited liability company ("TARR GP"), AVENTURA TARRAGON
LP, LLC, a Florida limited liability company ("IARR LP"), and SHEFAOR BH, LLC,
a Florida limited liability company rShefaor") (TARR GP, TARR LP and Shemor are
collectively referred to berein as "Seller"), and PINNACLE COM:MUNlTIES, L.L.C.,
a New Jersey limited liability company ("~').
WITNESSETH:
In consideration of the mutual covenants and agreements set forth. herein the
parties hereto do hereby agree as follows: .
ARTICLE 1- CERTAIN DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Business Dav" sball mean any day other than a Saturday, Sunday, or anyreCICraI
or state of Florida holiday. If any period expires on a day which is not a. Business Day or
any event or condition is required by the terms of this Agreement to occur or be fulfilled
on a day which is not a Business Day, such period shal1 expire or such event or condition
shall occur or be ful:li11ed, as the case may be, on the next succeeding Business Day.
"Buver's Broker" shall mean collectively, LieblichlKraft, shaina Levin and
Chanie Lipsker.
"Buver's Reports" shall mean the written results.> of any e)Cam;nations,
inspections, investigations, tests, studies, analyses, appraisals, evaluations and/or
investigations prepared by or for or otherwise obtained by Buyer in connection with
Buyer's Due Diligence.
"Buver's Representatives" sball mean Buyer, any direet or indirect owner of any
beneficial interest in Buyer, and any officers, directors, employees, agents,
representatives and attorneys of Buyer or any such direct or .indirect owner of any
beneficial interest in Buyer.
"Closinl!" shall mean the closing of the Transaction.
"C1osiDI! Date" shall mean July 20, 2005 provided that Buyer may extend the
Closing Date one-time for a period of sixty (60) days until September 19,2005 (the "First
Extension Date'') by providing written notice of Buyer's intent to. extend the Closing
Date and delivering the Extension Deposit with Seller on or before the date that is seven
(7) Business Days preceding the then-scheduled Closing Date. Time is of the essence
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with respect to the foregoing date, and in the event Buyer shall fail to timely provide
notice or deposit the Extension Deposit, then Buyer shall be deemed to have elected to
proceed with the Closing as originally scheduled. Notwithstanding anything to the
contrary set forth herein, the Closing Date, the First Extension Date and the date upon
which Buyer must deposit the Extension Deposit shall be extended by the length of any
Moratorium Period (as defined in Section &.5 (g) (ill)) and any Additional Moratorium
Period (as defmed in Section 8.5 (g) (iv)). Buyer shall also have the one-time right to
adjourn the Closing Date for up to five (5) days ("Extension Option"). If Buyer shall
e"ercise the Extension Option, Buyer shall pay directly to Seller (by federal funds wire
transfer) a payment of $13,333 per day for each day the Closing Date is so extended,
which payments shall not be applicable to the Purchase Price and shall be non-refundable
to Buyer except in the event of Seller's default. The Closing Date may also be extended
as expressly provided by this Agreement.
"Closin~ Tax Year" shall mean the Tax Year in which the. Closing Date occurs.
"Confidential Materials" shall mean any books, computer software, records or
files (whether in a printed or electronic format) that consist of or contain any ofthc...
following: appraisals (other than those performed by third parties); budgets; strategic
plans for the Property; internal analyses; information regarding the marketing of the: .
Property for sale; submissions relating to obtaining internal authorization for the sale.of:.
the Partnership Interest by the Seller or any direct or indirect owner of any beneficial
interest in the Seller or the Partnership; attorney-client privileged documents; intcma1
correspondence of the Partnership, any direct or indirect owner of any beneficial interest
in the Partnership, or any of their respective afiiliatcs and correspondence between or
among such parties, except to the extent such information has been made pub~cly
available, provided, however, that the foregoing definition shall only apply to an Asset
Sale and otherwise the term "Confidential Materials" shall apply only to information
regarding the marketing of the Property and/or Partnership Interests for sale,
correspondence, agreements, letters of intent and offers from third parties in connection
with such third parties' negotiation with Seller to purchase the Partnership Interests .
and/or the Property and any attorney-client privileged documents that do not relate solely
to the Partnership Interests and/or the Property and do not compromise attomey-clicnt
privileged documents for any affiliates of Seller.
"Contracts" shall mean all management, consulting, service (other than the
listing agreement for the Real Property), supply, maintenance, utility and commission
agreements (other than locater agreements), all equipment leases, and all <?ther contracts.
subcontracts and agreements relating to the Real Property and the Personal Property and
to which the Partnership (or the Partnership's managing agent) is a party (including all
contracts, subcontracts and agreements relating to the construction of any unfinished
tenant improvements), all of which are described in Exhibit B attached hereto and
incorporated herein by this reference, together with any additional contracts, subcontracts
and agreements entered into in accordance with the terms of Subsection 10.2.1 hereof and
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as the same may be modified or terminated in accordance with the terms of
Subsection 10.2.1.
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"deemed to know" shall have the following meaning:
(a) Buyer shall be "deemed to know" of the existence of a fact or
circumstance to the extent that:
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(i)
Brian M. Stolar or Ken Simons (either, ''Buyer's Designees")
actually knows of such fact or circumstance, or
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such fact or circumstance ilt specifically disclosed by this
Agreement, any Closing documents executed by the Partnership or
Seller for the benefit of Buyer and delivered to Buyer in
connection with the Closing, the Documents, any estoppel
certificate executed by any tenant of the Property and delivered to
Buyer, or any Buyer's Reports.
Buyer shall be "deemed to know" that any Seller's Warranty is untrue,
inaccurate or incorrect to the eXtent that any Buyer's Designee l:!asl/lCtual
knowledge of information at or prior.to Closing which is inconsistent-with .
such Seller's Warranty. .
(ii)
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(b)
"Deposit" shall mean the sum of Three Million Five Hundred Thousand Dollars
($3,500,000.00), consisting of, collectively, the Initial Deposit of One Million
($1,00,000.00), the Secondary Deposit of Two Million Five Hundred Thousand Dollars
($2,500,000.00). In addition; the Deposit will include the Extension Deposit, if made.
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"Desil!llated Emnlovees" shall mean James Kelly, Claudio Stivelman, Gilbert
Benhamou andJamc;s Cauley.
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"Documents" shall mean the documents and instruments applicable to the
Partnership or the Properly or any portion thereof that Seller or any of the other. Seller
Parties deliver or specifically make available to Buyer Designees prior to Closing or
which are otherwise obtained by Buyer prior to Closing, including, but not limited to, the
Title Commitment, the Survey, the Title Documents, and the Property Documents.
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"Due Dilil!ence" shall mean examinations, .inspections, investigations, tests,
studies, analyses, appraisals, evaluations and/or investigations with respect to the
Partnership, the Partnership Interests, the Property, the Documents, and other information
and .documents regarding the Properly, including, without limitation, examination and
review of title matters, applieable land use and zoning Laws and other Laws applicable to
the Partnership Interests, the Properly, the physical condition of the Property, and the .
economic status of the Property.
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"Due Dilil!ence Period" shall mean the period commencing prior to the
execution of this Agreement and expiring on 5:00 p.m. (Eastern Time) on May 6, 2005.
. "Escrow Al!ent" sba1l mean Stewart Title Guaranty Company.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Extension Deposit" shall mean the sum of One Million and No/100 Dollars
($1,000,000.00), which may be delivered by Buyer to extend the Closing Date by
payment directly to Seller via federal funds wire transfer. The Extension Deposit shall be
non-refundable when made, except as otherwise specifically set forth herein.
"MB" shall mean floor area ratio as defined under the zoning Laws for the City
of A ventura, Florida.
"Initial Denosit" shall mean the sum of One Million Dollars ($1,000,000.00),
which has been deposited by Buyer with Escrow Agent in accordance with the terms
hereof.
"Laws" shall mean all municipal, county, state or federal statutes, eodes~'.
ordinances,laws, rules or regulations.
"~" shall mean all leases, licenses, occupancy agreements and/or. similar
occupancy agreements with respect to the Real Property in existence on the Closing Date.
"Liabilities" shall mean, collectively, any and all losses, coSts, damages. claims,
liabilities, expenses, demands or obligations of any kind or nature whatsoever.
"Maior Condemnation" shall mean with respect to any .condemnation or
eminent domain proceedings that occurs after the date hereof, the portion of the Property
that is the subject of such proceedings has a value in excess of Five Hundred Thousand
and no/IOO Dollars ($500,000.00) or adversely affects access to the Project or decreases
the number of residential units or parking spaces in connection with the Project.
"Other Pronerty Ril!hts" shall mean, collectively, the Partnership's interest in
and to all of the following: (a) to the extent that the same are in effect as of the Closing
Date, any and all governmental approvals, entitlements, licenses, permits and other
written authorizations necessary for the use, operation or ownership of the Real Property
and for the development or redevelopment of the Real Property and/or the Project, and
(b) any guaranties and warranties in effect with respect to any portion of the Real
Property or the Persona! Property as of the Closing Date.
"Owner's Title Poliey" shall mean a bring down endorsement of the ALTA
Owner's Policy of title insurance issued by Lawyer's Title Insurance Corporation, Policy
No. A97-0004193 or First American Title Insurance Company, Policy No. 0-211170, in
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the amount of the Purchase Price, or at Buyer's election, a new owner's policy of title
inSurance issued by a national title insurer selected by Buyer.
"Partnership" sba\l mean SHEFAORlfARRAGON, LLLP, a Florida limited
liability limited partnership.
"Partnership Aereement" sba\l mean the Amended and Restated Limited
Liability Limited Partnership Agreement of the Partnership, dated August 19,2004.
"Partnership Ipterests" shall mean 100% of the. ownefSlllp interests in the
Partnership, including, without limitation, all of Seller's right, title and interest in and to
(i) the Partnership; (ll) the Partnership Agreement; ("ill) all assets of the Partnership
including Seller's distributive share of all cash and non-cash profits, income,
distributions, surplus and proceeds of the Partnership attributable to Seller's interest in
the Partnership; (iv) Seller's distributive sbareof Specific properties and assets of the
Partnership upon dissolution or otherwise including the distributive share of all future
cash and non-cash profits, income, distributions, surplus and proceeds of the Partnership
attributable to Seller's interest in the Partnership; and (v) any and all other rights of e.very
kind and character of Seller in and to the Partnership, the assets of the Partnership and
Partnership Agreement, or incident or appurtenant thereto.
"Permitted Exceptions" shall mean and include all of the following, subjeet to
the rights of Buyer to object to matters of title and survey pursuant to Article 4 hereof and
the right of Buyer to terminate this Agreement pursuant to Article 5 and Section 11.2
hereof: (a) applicable zoning and building ordinances and land use regulations,. (b) all
liens, encumbrances, covenants, conditions, restrictions, easements and other matters of
record, except to the extent that the same are caused or created by Seller in violation of
the terms of Subsection 4.2.3. (c) such exceptions to title as are listed on Schedule B of.
the Title Commitment, including the Title Company's staIidani printed exceptions,
Cd) such state of facts as disclosed in a Survey and physical inspection of the Property,
(e) the lien of taxes and assessments not yet.due and payable (it being agreed by Buyer
and Seller that if any tax or assessment is levied or .assessed with respect to the Property
after the date hereof and the owner of the Property has the election to pay such tax or
assessment either immediately or under a payment plan with interest, Seller may elect to
pay under a payment plan, which election sba\l be binding on Buyer), (1) any exceptions
caused by Buyer or any Buyer's Representative, (g) such other exceptions as may be
Removed from the Owner's Title Policy, (h) the rights of the tenants under the Leases, as
tenants only with no options to purchase or rights of first refusal (i) any Property matters
about which Buyer knows or is deemed to know prior to the expiration of the Due
Diligence Period and about which Buyer fails to object (or if objected to, Buyer waives
pursuant to Section 4.2), and G) any matters deemed to constitute additional Permitted
Exceptions under Subsection 4.2.1 hereof.
"Personal Property" shall mean, collectively, (a) all tangible personal property
owned by the Partnership and used in the ownership, operation and maintenance of the
Real Property, and (b) all intangible property, books, records and files of the Partnership
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relating to the Real Property or the Leases; but specifically excluding from the items
described in both clauses (a) and au. any Confidential Materials, any computer software
that is licensed to Seller, and personal property of the management company of the
Partnership. The Personal Property shall specifically include all property described on
Exhibit L attached hereto.
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"Project" shall mean the development and construction upon the Real Property
of a high rise residential condominium complex with a minimum of 526 residential units
and legally required parking.
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"Property" shall mean, collectively, (a) th~ Real Property, (b) the Personal
Property, (c) the Partnership's interest as landlord in all Leases; (d) the Contracts, and
(e) the Other Property Rights.
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"Property Documents" shall mean, collectively, (a) the Leases, (b) the
Contracts, and (c) any other documents or instruments which constitute, evidence or
create any portion of the Property that are available in the public records or have. been
delivered or speeifically made available to Buyer.
"Purchase Price" shall mean the sum of Eighty-Five Million Two HIim:Ired
Thousand Dollars ($85,200,000.00).
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"Real Property" shall mean that certain parcel of real estate located at 17900
N.E. 31" Court, Aventura, Florida and legally descn"bed in Exhibit A attached hereto and
incOIporated herein by this reference, together with all buildings, improvements and
fixtures located thereon and owned by the Partnership as of the Effective. Date and all
right, title and interest, if any, that the Partnership may have in and to all rights, privileges
and appurtenances pertaining thereto including all of Partnership's right, title and interest, '.
if any, in and to all rights-of-way, open or proposed streets, alleys, easements, strips or
gores of land adjacent thereto; provided, however, that in the event of any condemnation
or casualty that. occurs after the date hereof, the term "Real Property" shall not include
any of the foregoing that is destroyed or taken as a result of any such condemnation
proceeding.
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"Remove" with respect to any exception to title shall mean that Seller causes the
Title Company to remove or affirmatively insure over (provided such affirmative
insurance .is commercially reasonable in the applicable circumstance) the same as an
exception to the Owner's Title Policy and any lender's policy for the benefit of Buyer,
without any additional cost to Buyer or such lender, whether such removal or insurance is
made available in consideration of payment, bonding, indemnity of Seller or otherwise.
"fulli!" shall mean all monthly rents and any and all other payments due from
the tenants of the Property under the Leases.
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"ReQuired Removal E:xcelltions" shall mean, collectively, any Title Objections
to the extent (and only to the extent) that the same (a) have not been caused by Buyer or
any Buyer's Representatives, and (b) are either:
(i) liens evidencing monetary encumbrances (other than liens for
non-delinquent general real estate taxes. or assessments not yet due and
payable) ("Monetary Liensj which can be Removed by payment of
liquidated amounts but only if such Monetary Liens have been CIeatedby
written instrument signed by the Partnership or assumed by written
instrument signed by the Partnership,
(ii) liens or encumbrances (including, but not limited to, Monetary Liens)
created by Seller after the date of this Agreement in violation of
Subseetion 4.2.3.,
(ill) fines, liens, judgments or other monetary encumbrances (including, but
.not limited to, Monetary Liens) which can be Removed by payment of .
money not exceeding $500,000.00, or
(iv) liens for work performed by third parties on behalf of, and pursuankto
written and binding agreements with the Partnership at the Real Property
whicb are placed of record after the Objection Date.
"Residential Leases" sball mean all Leases for those tenants of the residential
improvements portion of the Real Property in existence on the Closing Date.
"Secondary Deuosit" shall mean the sum of Two Million Five Hundred
Thousand and No/IOO Dollars ($2,500,000.00), to the extent the same is deposited by
Buyer in accordance with the terms of Subsection 3.1.1 hereof, together with any interest
earned thereon. .
"Seller-Allocated Amounts" shall mean with respect to any condemnation or
eminent domain proeeedings with respect to any portion of the Property that occurs after
the date hereof, (i) the reasonable costs, expenses and fees, including reasonable
attorneys' fees, expenses and disbursements, incurred by the Partnership in connection
with obtaining payment of any award or proc.eeda in connection with any. such
condemnation or eminent domain proceedings, and (ii) any portion of any such award or
proceeds that is alloeable to loss of use of the Property prior to Closing.
"Seller's Broker" shall mean CB Richard Ellis, Inc.
"Seller's Knowledl!e" or words of similar import shall refer only to the actual
knowledge of the Designated Employees and shall not be construed to refer to the
knowledge of any other Seller Party. There shall be no personal liability on the part of
the Designated Employees arising out of any of the Seller's Warranties.
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"Seller Parties" shall mean and include, collectively, (a) Seller and Tarragon
Management, Inc. (cellectively, "Seller" for purposes of the definitian af "Seller
Parties"); (b) its counsel; (c) Seller's Broker, (d) Seller's property manager, (e) any direct
er indirect owner ef any beneficial interest in Seller, (f) any. efficer, directer, emplayee,
er agent of Seller, its ceunsel, Seller's Breker, Seller's property manager or any direct or
indirect owner ef any beneficial interest in Seller; and (g) any ether entity or individual
affiliated errelated in any way to any efthe foregoing.
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"Seller Partnershin Warranties" shall mean those Seller Warranties contained
. in Subsection 9.2.3.
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"Seller's Warranties" shall mean Seller's representations and warranties set
forth in Sectien 9.2. in the Assignment of Partnership Interests, and in the documents
delivered by the Seller at Closing.
"Site Plan Approval" shall have the meaning set forth in Section 8.S.
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"Survev" shall mean a survey ef the Prcperty to be obtained as set forth in
Article 4.
"Tax Year" shall mean the year peried ~ommencing on January 1 of'. each .
calendaI yeaI and ending cn December 31 of each calendar year.
"Title Commitment" shall mean that certain commitment to issue an Owner's
Policy cfTit\e Insurance with respect to the Property to. be issued by the Title Company.
"Title Companv" shall mean a nationally recognized title insurance cOJIlpany
selected by Buyer. .
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"Title Documents" shall mean all documents referred to. on Schedule B af the
Title Commitment as exceptionS to coverage.
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"Title Obiections" shall mean any exceptions to title to which Buyer is entitled
and timely objects in accordance with the terms ofSubsectien 4.2.1(a).
"Transaction" shall mean the transaction centemplated by this Agreement.
ARTICLE 2 - SALE OF PROPERTY
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Seller agrees to. sell, transfer and assign and Buyer agrees to. purchase, aCI:ept and
assume, subject to the terms and cenditiens set forth in this Agreement, all ef Seller's
right, title and interest in and to the Partnership Interests in the Partnership, free and clear
af all liens, claims and encumbrances. Buyer shall have the right to. convert this
Agreement to. a purchase and sale agreement for the Preperty enly ("Asset Salej rather
than a purchase ef the Partnership Interests, prcvided that Buyer delivers written natice to
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Seller at least sixty (60) days prior to the Closing Date of its election to proceed with an
Asset Sale ("Asset Sale Notice''). Upon timely delivery of the Asset Sale Notice, this
Agreement shall be modified to reflect the purchase and sale of the Property by the
Partnership rather than the Partnership Interests. In furtherance of the foregoing, and not
in limitation thereof, this Agreement shall be modified to reflect the deletion of Article
4A. Section 9.2.Hd)"(fI. Section 9.2.3. Section 15.22. Section 15.23 and all references or
representations, covenants and conditions relating to an assignment of the Partnership
Interests, Seller's Partnership Warranties and any Seller indemnities relating thereto. At
Closing, Seller shall deliver a special warranty deed in recordable form for the Real
Property and Seller and Buyer shall each deliver to the other an Assignment of Leases, a
Bill of Sale for the Personal Property and a general assignment of Intangible Property, as
well as such other closing documents as customiuily delivered for an Asset Sale and
reasonably acceptable to both parties. . The Purchase Price shall not be reduced in
connection with an Asset Sale and Buyer shall be solely.responsible and hereby agrees to
pay all transfer taxes, sales taxes, documentary stamp taxeS and similar eharges
applicable to the Asset Sale.
ARTICLE 3 - PURCHASE PRICE
In consideration of the sale of the Partnership Interests to Buyer, Buyer shall .pay :
at the Closing to Seller an amount equal to the Purchase Price, as prorated and adjusted as
set forth in Article 6, Section 7.2, or as otherwise provided under this Agreement.
3.1 Earnest Monev Deposit.
3.1.1 Payment of Deposit. Prior to the date hereof and pursuant to that
certain Letter of Intent dated as of March 8, 2005 between Buyer and Seller.
("LOI"), Buyer has made the Initial Deposit with Escrow Agent. The provisions
of this Agreement with respect to the Initial Deposit supercede the LOI and shall
control. The Initial Deposit shall be refundable to Buyer if Buyer terminates, or is
deemed to have terminated, this Agreement in accordance with Section 5.3
bereof. The Initial Deposit, the Extension Deposit and the Secondary Deposit
shall be held by Escrow Agent and sball be released and/or drawn upon in
accordanee with the provisions of this Agreement. In addition, no later than 5:00
p.m. Eastern Time on the last day of the Due Diligence Period (provided that this
Agreement is not sooner terminated or deemed terminated in accordance with the
terms hereof), Buyer shall make the Secondary Deposit in immediately available
funds with Escrow Agent. The Deposit shall be non-refundable to .Buyer except
in the event Buyer terminates this Agreement in accordance with the tenns hereof
and pursuant to Sections 4.2.Hct 4A.2(b)(j). 8.3. 8.5. 11.2 and 12.1 or as
otherwise specifica1ly provided for herein, in which event all or a portion of the
. Deposit and a1l interest thereon, may be refundable.
3.1.2 Applicable Terms: Failure to Make Deposit. Except.as expressly
otherwise set forth herein, the Deposit shall be applied against the Purchase Price
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on the Closing Date and shall otherwise be held and delivered by Escrow Agent in
accordance with the provisions of Article 13. Notwithstanding any provision in
this Agreement to the contrary, if Buyer fails to timely make the Secondary
Deposit as provided herein, Buyer shall be deemed to have. elected to terminate
this Agreement, the Initial Deposit shall be returned to Buyer and the parties shall
have no further rights or obligations hereundl9' except for obligations which
expressly survive the termination of this Agreement.
3.2 Cash at C1osine. On the Closing Date, Buyer shall pay to Seller an
. amount equal to the Purchase Price in immediately available funds by wire transfer as
more particularly set forth in Section 7.2. as prorated and adjusted as set forth in
Article 6. Section 7.2 hereof, or as otherwise provided under this Agreement, and, as a
portion of such payment, Buyer may cause the Escrow Agent to pay to Seller the portion
of the Deposit held by Escrow Agent in immediately available funds by wire transfer as
more particularly set forth in Section 7.2 hereof. Any portion of the Deposit released to
Seller shall be credited against the Purchase Price at Closing. In no event shall any
interest on the Deposit be credited against the Purchase Price at Closing.
ARTICLE 4 - TITLE MATIERS
4.1 Title to Real Pronertv. Buyer acknowledges that Seller has previously
delivered to Buyer a copy of the Partnership's existing title policy (and all exception
documents .referenced therein) and the existing Survey. Buyer has obtained prior to the
date hereof the Title Commitment and copies of all of the Title Documents and shall
promptly provide Seller copies of the same. Buyer shall order promptly after the date
hereof an update of the existing Survey and/or a new Survey and shall notify Seller when
it receives same and Buyer shall promptly furnish Seller copies of the same.
4.2
Title Defects.
4.2.1 Buver's Obiections to Title: Seller's Obll1!3tions and Ril!bts.
(a) On or before 5:00 p.m. (Eastern Time) on April 21, 200S
("Obiection Date"), Buyer shall have the right to object in writing to any title
and/or survey matters that appear on the Title Commitment, the Survey, and any
supplemental title reports or updates to the Title Commitment or Survey (whether
or not such matters constitute Pennitted Exceptions) (the "Primarv Obiection
Notice~. In addition, after the expiration of the Objection Date, Buyer shall have
the right to object in writing to any survey and/or title matters that are not
Permitted Exceptions and that materially adversely affect Buyer's title to the Real
Property (defined as materially and adversely affecting Buyer's use of the Real
Property for the Project) if such matters appear on any supplemental title reports,
updates to the Surveyor updates to the Title Commitment issued after the
Objection Date and if such matters are placed of record after the effective date of
the Title Commitment received prior to the expiration of the Objection Date, so
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long as such objection is made by Buyer within five (5) Business Days after
Buyer becomes aware of the same (but, in any event, prior to the Closing Date) (a
"Subsequent Obiection Noticc"). Unless Buyer is entitled to and timely objects to
such title matters, all such title matters shall be dcemed to constitute additional
Pennitted Exceptions.
(b) (i) Seller may elect (but shall not be obligated) to Removc or
cause to be Removed any Title Objections that are not Required Removal
Exceptions that are raised in Buyer's Primary Notice Objection and Scller shall
notify Buyer in writing within three (3) Business Days after receipt ~f Buyer's
Primary Objection Notice whether Seller elects to Remove the same ("Seller's
Resoonse'') (and the failure by Seller to provide such notice within threc (3)
Business Days after rcceipt of Buyer's Primary Objection Notice shall be deemed
an election by Seller not tel effect any such cure).
(ii) By depositing the Secondary Deposit in accordance with the
tepns hereof on or before the expiration of the Due Diligence Period, Buyer shall
be deemed to have elected to waive such Title Objections (that arc not required
Removal Exceptions) that Seller has elected not to cure (or deemed so) and such
Title Objections shall be deemed to constitute Pcrmitted Exceptions. and..',the
Closing shall occur as herein provided without any reduction of the Purchase.
Price.
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(c) If this Agreement is not terminated by Buyer in accordance with
the provisions hereof, Seller shall, at Closing, Remove or cause to be Removed
any Title Objections to the extent (and only to the eXtent) that the same constitute
Required Removal Exceptions. In addition, Seller may eleet (but shall not be
obligated) to Remove or cause to bc Removed any other Title Objections. To the .
extent that the same do not constitute Required Removal Exceptions, Seller may
notify Buyer in writing after receipt of Buyer's Subsequent Objection Notice
whether Seller elects to Remove the same (and the failure to provide such noticc
within five (5) Business Days after receipt of Buyer's Subsequent Objection
Notice shall be deemed to constitute an election of Seller not to cffect any such
cure). If Seller elects not to Remove one or more Title Objections that arc not
Required Removal Exceptions (or is deemcd to have so clectcd), then, within fivc
(5) Business Days after Seller's election (but, in any event, prior to thc Closing
Date), Buyer may elect. in writing to either (i) terminate this Agreement, in which
event the Extension Deposit, if applicable and all interest thereon, shall be
automatically paid to Seller (unless Seller shall have elected not to remove or cure
any Title Objection which would materially and adversely affect Buyer's use of
the Real Property for the Project), in which case the Initial Deposit (and Extension
Deposit, if applicable) shall be returned to Buyer and the Secondary Deposit shall
be paid to Buycr and, thereafter, the parties shall have no further rights or
obligations bereunder except for obligations whicb expressly survivc the
tennination of this Agreement, or (il) waive such Title Objections and procced to
Closing. The failure of Buyer to respond in writing within such five Business
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Day period shall be deemed an election by Buyer to waive such Title Objections
and proceed to Closing. Any such Title Objection that is not a Required Removal
Exception so waived (or deemed waived) by Buyer shall be deemed to constitute
a Permitted Exception and the Closing shall occur as herein provided without any
reduction of or credit against the Purchase Price.
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(d) Seller shall be entitled to a reasonable adjournment of the Closing
(not to exceed thirty (30) days) for the purpose of the Removal of any Required
Removal Exceptions or other Title Objections.
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4.2.2 Discbarl!e of Title Exceptions. If on the Closing Date there arc
any Required Removal Exceptions or any other Title Objections which Seller has
elected in writing to pay and discharge, Seller may use any portion of the
Purchase Price to satisfy the same, provided Seller shall cause the Title Company
to Remove the same. .
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4.2j No New Exceptions. From and after the date hereof, Seller shall
not permit the Partnership to execute any deed, contract, easement, restriction,
covenant or other matter affecting title to the Property unless Buyer has received a
copy thereof and has approved the same in writing. If Buyer fails to obj~in
writing to any such proposed instrument within four (4) Business Days."afim
receipt of the aforementioned notice, Buyer shall be deemed to have approved the
proposed instrument Buyer's consent shall not be unreasonably withheld or
delayed with respect to any such instrument that is proposed prior to the end of
the Due Diligence Period. Buyer, in its sole and absolute discretion, shall be
entitled to grant or .withhold its consent with respect to any such instrument.that is
proposed between the end of the Due Diligence Period and the Closing.
4.3 Title Insurance. At Closing, the Title Company shall issue the Owner's
Title Policy to Buyer, insuring that title to the Real. Property is vested in the Partnership
subject only to the Permitted Exceptions. Buyer shall be entitled to request that the Title
Company provide such endorsements (or amendments) to the Owner's Title Policy as
Buyer may reasonably require, provided that (a) such endorsements (or amendments)
shall be at no cost to, and shall impose no additional liability on, Seller (other than in
connection with reasonable and customary Seller's title affidavits), (b) Buyer's
obligations under this Agreement shall Dot be conditioned upon Buyer'~ ability to obtain
such endorsements and, if Buyer is unable to obtain such endorsements, Buyer shall
nevertheless be obligated to proceed to close the Transaction without reduction of or set
off against the Purchase Price, and (c) the Closing shall not be delayed as a result of
Buyer's request.
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ARTICLE 4A - PARTNERSHIP MATTERS
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4A.l Partnership Searcb Matten.
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(a) On or before 5:00 pm. (Eastem Tune) on the Objection Date.
Buyer sball have the right to object in writing to any matters that appear on any
reports concerning the Seller, the Partnership or Partnership Interests (mcluding;
without limitation, UCC searches, judgment searches; litigation searches) whiCh
are liens or other encumbrances on the Partnership Interests ("Partnership Search
Matters"). In addition, after the expiration of the Objection Date, Buyer sball
have the right to object in writing to any Partnership Search Matters if such
matters first appear on any supplemental reports or updates obtained after the
expiration of the Objection Date or if such matters were created or perfected after
the expiration of the Objection Date, so long as such objection is made by Buyer
within five (5) Business Days after Buyer becomes aware of the same (but, in my
event, prior to the Closing Date).
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(b) If this Agreement is not terminated by Buyer in accordance with
the provisions hereof prior to the expiration of the Due Diligence Period, Seller
sbalJ, at or prior to Closing, resolve all Partnership Search Matters to :a.uxcr'.
reasonable satisfaction to whicb Buyer has timely objected pursuant to (a) ahove.
If Seller is unable to resolve any Partnership Search Matters timely objected to by
Buyer prior to or at the Closing to Buyer's reasonable satisfaction, Buyer may, as
its sole remedy and in lieu of all other remedies, at Closing elect to either
(I) terminate this Agreement, in which event the Deposit shall be paid to. Buyer
and the parties sball have no further rights or obligations hereunder exeept for
obligations which expressly S1lIvive the termination of this Agreement, or
(il) waive such Partnership Searcb Matters and the Closing shall occur as herein
provided without any reduction of or credit against the Purchase Price.
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. (c) Seller shall be entitled to a reasonable adjournment of the Closing
(not to exceed thirty (30) days) for the purpose of resolving any Partnership
Search Matters to which Buyer has objected.
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4A.2.2 Discharee of Partnership Search Matten. If on the Closing Date there
are any Partnership Search Matters objected to by Buyer which Seller has elected in
writing to pay and discharge, Seller may direct Escrow Agent to apply any portion of the
Purchase Price to satisfy the same.
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4A.2.3 No Creation of Partnershin Search Matters. From and after the date
hereof, Seller shall not cause or permit the Partnership to execute, me or perfect any
instruments which would be a lien on the Partnership or Partnership Interests.
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4A.2.4 Partnership Matters and Real Property Matten. Nothing in this
Article 4A shall expand the rights and obligations of Buyer and Seller wi:th respect to the
Title Commitment and Survey, as such are set forth in Article 4. This Article 4A is
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intended to address matters relating to the Partnership and Partnership Interests only, as
opposed to Real Property matters.
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ARTICLE 5 - BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY
5.1 Buver's Due Dilil!ence.
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5.1.1 Access to Property. Between the date hereof and the Closing
Date Seller sbaJI cause the Partnership to allow Buyer. and Buyer's
Representatives access to the Property upon reasonable prior notice at reasonable.
times provided (a) such access does not unreasonably interfere with the operation
of the Property or the rights of tenants; (b) Buyer shall not contact any existing
tenant without Seller's prior written consent, not to be unreasonably withheld; and
( c) Seller or its designated representative shall have the right to pre-approve and
be present during any pbysical testing of the Property, such pre-approval not to be
unreasonably withheld. In addition, during the Due Diligence Period Seller will
make or cause to be made available to Buyer for copying, at Buyer's sole cost and
expense, the property files of Seller and the management agent for the Property
and the books and records of the Partnership (other than Confidential Materials).
On written request from Seller, Buyer shall deliver promptly to Seller copies of-all .
Buyer's Reports prepared by third parties, but with no liability for the accuracy
thereof and no representation that Seller or any other party may rely thereon. To
the extent Buyer's due diligence investigations shall damage the Property,. Buyer
shall immediately return the Property to the condition existing prior to any tests
and inspections performed by or on behalf of Buyer. Prior to such time as Buyer
or any of Buyer's Representatives enter the Property, Buyer sbaJI (i) obtain
policies of general liability insurance which insure Buyer and Buyer's
Representatives with liability insurance limits of not less than $2,000,000
combined single limit for personal injury and property damage and name the
Partnership and the Partnership's property manager as additional insureds and
which are with such insurance eompanies, provide such coverages and carry such
other limits as Seller sball reasonably require, and (ii) provide Seller with
certificates of insurance evidencing that Buyer has obtained the aforementioned
policies of insurance.
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5.1.2 Limit on Government Contacts. Notwithstanding any provision
in this Agreement to the contrary, except in connection with the preparation of a
so-called "Phase I" environmental report with respect to the Property or as may
otherwise be required by law, Buyer shall not contact any govenimental official
or representative regarding hazardous materials on or the environmental condition
of the Property without Seller's prior written consent thereto, which consent shall
not be unreasonably withheld or delayed. In addition, if Seller's consent is
obtained by Buyer, Seller shall be entitled to receive at least five (5) days prior
written notice of the intended contact and to have a representative present when
Buyer has any such contact with any governmental official or representative.
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5.2 As-Is. Where-Is. With All Faults Sale. Buyer acknowledges and agrees
as follows:
(a) During the Due Diligence Period, Buyer has conducted (or has
waived its right to conduct), and shal1 continue to conduct, such Due Diligence as
Buyer has deemed or shall deem necessary or appropriate.
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(b) The Partnership Interests, shall be assigned to Buyer and Buyer
shall aceept the Partnership Interests on the Closing Date free and clear of all
liens, claims and encumbrances but otherwise, except as specifically provided
herein, "AS IS, WHERE IS, WITH ALL FAULTS", with no right of setoff or
reduction in the Purchase Price and upon the assignment. of the Partnership
Interests to Buyer (or in the event of an Asset Sale in accordance with the terms
hereof), Buyer shall accept the PIoperty AS IS, WHERE IS, WITH ALL
FAULTS", with no right of setoff or reduction in the Purehase Price, subject to
any surviving representations and warranties and indemnifications set forth
herein.
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.(c) Except for Seller's Warranties, none of the Seller Parties have. or
shall be deemed to have made any verbal or written representations, warranties,
promises or guarantees (whether express, implied, statutory or otherwise) to
Buyer with respect to the Partnership Interests or the Property, any matter set
forth, contained or addressed in the Documents (including, but not limited to, the
accuracy and completeness thereof) or the results of Buyer's Due Diligence;
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(d) Buyer shall independently confum to its satisfaction all
information that it considers material to its purchase of the Partnership Interests
and the Property and the Transaction. The foregoing sentence is not intended to
diminish Seller's Warranties.
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In addition, Buyer expressly understands and acknowledges that it is possible that
Liabilities unknown to Seller and Buyer may exist with respect to the Property and that
Buyer explicitly took that possibility into account in determining and agreeing to the
Purchase Price, and that a portion of such consideration, having been bargained for
between parties with the knowledge of the possibility of such unknown Liabilities shall
be given in exchange for a full accord and satisfaction and discharge of all such
Liabilities. Notwithstanding the foregoing, sueh acknowledgment is not intended to, and
shall not be construed to, (i) effect any contractual assumption of liability as to matters
which are not expressly assumed by Buyer in the documents. executed by the parties in
connection with the Transaction, or (ii) affect or impair any rights or remedies that Buyer
may have against Seller as a result of a breach of any of Seller's Warranties or effect a
waiver or limitation of Seller's indemnification obligations herein set forth.
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5.3 Termination of A!!reement Durin!! Due DlIi!!ence Period. If Buyer, in
its sole and absolute discretion, for any reason or for no reason at all, is not satisfied with
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the results of its Due Diligence during the Due Diligence Period, Buyer may term;nRte
this Agreement by written notice to Seller at any time prior to 5:00 p.m. Eastern Time on
the last day of the Due Diligence Period, and, in the event of such termination, neither
Seller nor Buyer shall have any liability hereunder except for those obligations which
expressly survive the termination of this Agreement and Buyer shall be entitled to
immediate payment of the Initial Deposit. In the event Buyer fails to terminate this
Agreement prior to 5:00 p.m. Eastern Time on the last day of the Due Diligence Period,
Buyer shall be deemed to have elected its rights to terminate this. Agreement in
aecordance with this Article S. If after the expiration of the Due Diligence Period Buyer
conducts further Due Diligence, Buyer acknowledges and agrees that Buyer shall have no
further right to terminate this Agreement with respect to such further Due Diligence or
otherwise in accordance with this Article 5 after the expiration of the Due Diligence
Period., except as may otherwise be provided in this Agreement.
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5.4 Buver's As-Is Certificate. Buyer shall deliver to Seller at the Closing. a
certificate in the form of Exhibit C attached hereto and incorporated herein by this
reference. .
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5.5 Return of Materials. Upon termination of this Agreement pursuant to the
terms of this Agreement, Buyer shall immediately provide Seller with copies of . all.
Property-related surveys, topographical maps, environmental assessments, geotechnical<
studies, architectural and engineer drawings and studies and any other materials prepared
by Buyer or by third-party professionals and consultants, and further, return to Seller all
materials provided to Buyer regarding the Pr9perty and Partnership. .
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ARTICLE 6 - ADJUSTMENTS AND PRORATIONS
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The following adjustments and prorations shall be made at Closing:
6.1 Lease Rentals and Other Revenues.
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6.1.1 Rents. All collected Rents shall be prorated between Seller and
Buyer as of 12:01 a.m. on the Closing Date. Seller shall be entitled to all Rents
attributable to any period .to but not including the Closing Date. Buyer shall be
entitled to all Rents attributable to any period on and after the Closing Date.
Rents not collected as of the Closing Date shall not be prorated at the time of
Closing. All Rents collected by Buyer on or after the. Closing Date shall first be
applied to all amounts due under the Leases at the time of collection (i.e., current
Rents and sums due Buyer as the current 'owner and -landlord) with the balance (If
any) payable to Seller, but only to the extent of amounts delinquent and actually
due Seller, less any costs of collection incurred by Buyer. Buyer shall not have an
exclusive right to colleet the sums due Seller under the Leases and Seller hereby
retains its rights to pursue claims against any tenant under the Leases for sums
due with respect to periods prior to the Closing Date; nrovided. however. that
Seller (i) shall be required to notify Buyer in writing of its intention to commence
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or pursue such legal proceedings; (ll) shall only be permitted to commence or
pursue any legal proceedings after the date which is ninety (90) days after
Closing; and (ill) shall not be permitted to commence or pursue any legal
proceedings against any tenant seeking eviction of such tenant or the termination
of the underlying lease. The terms of the immediately preceding sentence shall
survive the Closing and not be merged therein.
6.1.2 Other Revenues. Revenues from Property operations [other than
Rents (which shall be prorated as provided in Subsection 6.1.1 ), security deposits
. (which will be apportioned as provided in Section 6.6l, and pre-p!lid installments
or other payments under Contracts made to Seller or the Partnership (which shall
be the sole property of Seller)] that are actua11y collected shall be prorated
between Buyer and Seller as of 12:01 a.m. on the Closing Date. Seller shall be
entitled to all such revenues atlnoutable to any period to but not including the
Closing Date and Buyer shall be entitled to all such revenues atlnoutable to any
period on and after the Closing Date. Buyer shall not have an exclUsive right to
collect such revenues and Seller hereby retains its rights to pursue claims against
any parties for S1.UDS due with respect to periods prior to the Closing Date.
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6.2 Intentionallv Deleted.
6.3 Real Estate and Personal Prooertv Taxes.
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6.3.1 Proration of Ad Valorem Taxes. Buyer and Seller shall only
prorate ad valorem real estate and personal property taxes for the Property for the
Closing Tax Year that are billed in November and due no later than April 1 of the
following year, based on the maximum discount available for early payment,
during the Closing Tax Year, regardless of the; year for which such taxes are
assessed. There shall be no proration of ad valorem real estate or personal
property taxCll other than as set forth hereinabove and, as between Buyer and
Seller, Buyer agrees that it shall be solely responsible for all such ad valorem real
estate and personal property taxes from and after the Closing Date and Seller
shall be solely responsible for such ad valorem real estate and personal property
taxes relating to periods prior to the Closing Date. The proration of the ad
valorem real estate and personal property taxes actually due and payable during
the Closing Tax Year shall be ealculated as follows:
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(a) Seller shall be responsible for that portion of such taxes equal to
(i) the total such taxes due and payable during the Closing Tax Year, multiolied
l2Y (ll) a fraction, thenwnerator of which shall be the number of days in the
Closing Tax Year .prior to the Closing Date, and the denominator of which shall
be 365; and
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(b) Buyer shall be responsible for that portion of such taxes equal to
(i) the total such taxes due and payable during the Closing Tax Year, multiolied
l2Y (ii) a fraction, the nwnerator of which shall be the number of days in the
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Closing Tax Year subsequent to and including the Closing Date, and the
denominator of which shall be 365.
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6.3.2 Insufficient Information. If, at Closing, the real estate and/or
personal property tax rate and assessments have not been. set for the taxes due and
payable during the Closing Tax Year, then the proration of such taxes shall be
based upon the rate and assessments for the preceding Tax Year, and such
proration shall be adjusted between Seller and Buyer after Closing upon
presentation of written evidence that the actual taxes due and payable during the
Closing Tax Year differ from the amounts used at Closing and in accordance with
the provisions of Section 6.8. Tarragon shall be jointly and severally liable with
Seller with respeet to any amounts due Buyer pursuant to this Section 6.3.2.
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6.3.3 Snecial Assessments. Seller shall cause the Partnership to pay all
installments of special assessments due and payable prior to the Closing Date and
Buyer shall pay all or eause the Partnership (as conStituted after Closing) to pay
installments of special assessments due and payable on and after the Closing
Date; provided, however. that Seller shall not be required by the foregoing to
cause the Partnership to pay any installments of special assessments which.have
not been confumed or which relate to proj ects that have not been substantially
completed on the date hereof.
6.3.4 Intentionallv Omitted.
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6.3.5 Reassessments. In the event the Property has been asse.ssed for
property tax purposes at such rates as would result in reassessment (i.e., "escape
assessment" or "roll-back taxesj based upon the change in land usage on or after
the Closing Date, Buyer hereby agrees to pay all such taxes and to indemnify and
save Seller hann1ess from and against all Liabilities for such taxes. Such-
indemnity shall survive the Closing and not be merged therein. .
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6.4 Other PronertY Onentin!! Exnenses. Operating expenses for the
Property shall be prorated as of 12:01 a.m: on the Closing Date. Seller shall cause the
Partnership to pay all utility charges and other operating expenses attributable to the
Property to, but not including the Closing Date (except for those utility charges and
operating expenses payable by tenants in accordance with the Leases) and Buyer shall
pay all utility charges and other operating expenses attributable to the Property on or after
the Closing Date. To the extent that the amount of actual consumption of any utility
services is not determined prior to the Closing Date, a proration shall be made at Closing
based on the last avail~ble reading and post-closing adjustments between Buyer and
Seller shall be made within twenty (20) days of the date that actual consumption for such
pre-closing period is determined, which obligation shall survive the Closing and not be
merged therein. The Partnership shall reccive a credit against the Purchase Price at
Closing in the amount of any deposits which the Partnership has with any of the utility
services or companies servicing the Property, provided Seller provides written notice of
the amount and existence thereof.
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6.5 ClosiD2 Costs. Buyer shall pay the following costs and expenses
associated with the following: (a) all costs of Buyer's Due Diligence, including fees due
its consultants and attorneys, (b) all lenders' fees related to any financing to be obtained
by Buyer, (c) the commission due Buyer's Broker, (d) all escrow or closing attendance
charges of the Title Company, (e) all premiums and charges of the Title Company for the
Title Commitment and the Owner's Title Policy (including endorsements), and (1) the
cost of updating the existing Survey. Seller shall pay the following costs lIjld expenses
associated with the Transaction: (i) the commission due Seller's Broker, (il) all fees due
its attorneys, (ui) all costs incurred in connectiol1 with causing the Title Company to
Remove any Required Removal Exceptions or to Remove any other Title Objections to
the extent Seller specifically agrees in writing, at or prior to Closing, to cause Removal of
such matter, it being understood. for purposes of this sentence that nothing in this
Agreement or any prior understanding or agreement of the parties shall be construed to
obligate Seller to so Remove or agree to Remove any such other Title Objections, (iv) all
costs incurred in connection with resolving the Partnership Search Matters, (v) all
transfer taxes, sales taxes, documentary stamp taxes and similar charges, if any,
applicable to the assignment of the Partnership Interests, if applicable to Buyer (but-not
with respect to any financing to be obtained by Buyer), and (vi) the cost of providing the
existing Survey to Buyer. The obligations of the parties under this Section 65)hall
survive the Closing (and not be merged therein) or any earlier tennination of. this
Agreement.
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6.6 Cash Security Deposits. At Closing, Seller shall give Buyer a credit
against the Purchase Price in the aggregate amount of any cash security deposits and
prepaid rent then held by the Partnership under the LellSes, except to the extent a tenant
has vacated and the Partnership was entitled to use the same to offset tenant obligations
under a Lease.
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6.7 Apportiopment Credit. In the event the apportionments to be made at the
Closing result in a credit balance (a) to Buyer, such sum shall be paid at the Closing by
, giving Buyer a credit against the Purchase Price in the amount of such credit balance, or
(b) to Seller, Buyer shall pay the amount thereof to Seller at the Closing by wire transfer
of immediately available funds to the account or accounts to be designated by Seller for
the.payment of the Purchase Price.
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6.8 Delayed Adiustment: Delivery of Operatinl! and. Other Statements. If
at any time following the Closing Date, the amount of an item prorated or credited at
Closing pursuant to this Article 6 shall prove to be incorrect (whether as a result of an
error in calculation or a lack of complete and accurate information as of the Closing), thc
party in whose favor the error was made shall promptly pay to the other party the sum
necessary to correct such error upon receipt of proof of such error, provided that such
proof is delivered to the party.from whom payment is requested on or before one (1) year
after Closing (such period being referred to herein as the "Post Closim! Adiustment
Period''). In order to enable Seller to determine whether any such delayed adjustment is
necessary, Buyer shall provide to Seller current operating and financial statements .(or
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to
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such exeeIJlts thereof as are sufficient to provide the information necessary for the
determination of such adjustments) for the Property no later than the date one (1) month
prior to the expiration of the Post-Closing Adjustment Period. The provisioDS of this
Section 6.8 shall survive the Closing and not be merged therein.
ARTICLE 7 - CLOSING
Buyer and Seller hereby agree that the Tnmsaction shall be consummated as follows:
7.1 Closinl! Date. The parties shall conduct an escrow-style closing through
the Title Company (or such other party selected by Buyer and Seller) so that it will not be
necessary for any party to attend the Closing (Buyer and Seller shall have pre-Closings to
finalize and sign all documents not later than the day prior to Closing. and deliver such
items to the escrow agent).
7.2 Assilmment of Partnershin Interests and Pavment of Purchase Price.
Provided all conditions precedent to Seller's obligations hereunder have been satisfied,
SeHer agrees to convey the Partnership Interests to Buyer, or its designees as specified by
Buyer, upon confirmation of receipt of the Purchase Price by the Escrow Agent.as set
forth below. Provided all conditions precedent to Buyer's obligations hereunder have
been satisfied, Buyer agrees to pay the amount specified in Article 3 by timely delivering
the same to the Escrow Agent no later than 5:00 p.m. Eastern Time on the Closing Date
and causing the Escrow Agent to deposit the same in SeHer's designated account by 5:00
p.m. Eastern Time 011 the Closing Date. In addition, for each full or partial day after 5:00
p.m. Eastern Time on the Closing Date that Seller has not received in its account the
payment specified in Article 3. Buyer shall pay to Seller at Closing (and as a condition
thereto) an amount equal to the per diem proration in accordance with Article 6 for one
(1) day. Notwithstanding the foregoing or anything herein the contrary, Seller shall.have
the right to terminate this Agreement at any time if such payment is not received in
Seller's designated account(s) by 2:00 p.m. Eastern Tune on the day following the
Closing Date.
7.3 Seller's C1osinl! Deliveries. At the Closing, Seller shall deliver or cause
to be delivered the foHowing:
Ca) Assilmment Instrument. The assignment of Partnership Interests
C"Assilmment of Partners hiD Interest'') in the form attached hereto as Exhibit D.
(b) Certificate of Personal ProDertv. A eertificate of personal
property in the form of Exhibit E attached hereto and incorporated herein by this
reference ("Certificate of Personal Prooertvj executed by Seller. .
(c) Certificate of Tenant Leases. A certificate of tenant leases which
shall include the Rent Roll, in the form of Exhibit F attached hereto and
incorporated herein by this reference ("Certificate of Leases'') executed by Seller.
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(d) Certificate of Intan2ible Property. A certificate of the Contracts
and the Other Preperty Rights in the form of Exhibit G attached hereto and
incorperated herein by this reference ("Certificate ef Intamrible Prooertv")
executed by Seller.
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(e) Notice to Tenants and Vendors. A single ferm letter, executed
by Seller, duplicate copies ef which shall be sent by Buyer after Clesing to. each
tenant under the Leases and each vendor under the Contracts, advising the tenants
and venders ef the assignment of Partnership Interests. .
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(f) Non-Foreil!1l Status Affidavit. A nen-fereign status affidavit in
the ferm of Exhibit I attached hereto and incorporated herein by this reference, as
required by Section 1445 of the Internal Revenue Code, executed by Seller and
the Partnership, respectively.
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(g) Evidence of Authoritv. Decumentation to. establish to Buyer's
reasenable satisfaetien the due authorization ef Seller's execution of this
Agreement and all documents contemplated by this Agreement and the
consununation of the Transaction.
(h) Closinl! Statement. A Clesing Statement Agreement in the form
of Exhibit K attached hereto and incerperated herein by this reference. (the
"Closing Statement").
(i) Title Affidavit. A Vendor's Title Affidavit as is reasonably and
customarily required by the Title Company.
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(j) Other Documents. Such other documents as may be reasenably
required by the Title Company or as may be agreed upon by Seller and Buyer to
censummate the Transaction.
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(k) Files and Records. All originals and cepies of all documents,
instruments, agreements and centracts, including, without limitation, the
Partnership Agreement, the Leases, and :the Contracts, relating to the Property, all
of the books, records and files (including electronic files and recerds) and all
permits, Iiceuses, certificates of occupancy, and plans and specificatieus fer the
Real Property, and all reeords relating to the Partnership, to the extent in Seller's
or its agents', managers' and employees' possessien or control;
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(I) Tax Returns. If applicable, duly completed and signed real estate
transfer tax or sales tax retwns and any new Financial Statements fer the
Property, to. the extent.not previously delivered to Buyer.
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(m) Kevs and Oril!inal Documents. Keys to all lecks and other
security devices on the Real Property in Seller's er Seller's building manager's
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possession and originals or, if originals mnot available, copies, of all of the
Property Documents, to the extent not previously delivered to Buyer.
The items to be delivered by Seller in accordance with the terms of this Section 7.3 sha11
be delivered to Escrow Agent no later than 5:00 p.m. Eastem TlDle on the last Business
bay prior to the Closing Date, except that the items in the paragraph entitled ''Keys and
Original Documents" sball be delivered by Seller outside of escrow and shall be deemed
delivered if the same are located at the Property on the Closing Date. .
7.4 Buver Closinl!: Deliveries. At the Closing, Buyer shall deliver or cause to
be delivered the following:
<a) Purchase Price. The Purchase Price, as adjusted for
apportionments and other adjustments required under this Agreement, plus any
other amounts required tobe paid by Buyer at Closing.
(b) In1entionallv Omitted.
(c)
Intentionallv Omitted.
(d) Buver's As-Is .Certificate. . The certificate of Buyer ana' the
assignees under the Assignment of Partnership Interest required under Article 5
hereof.
(e) Evidence of A uthoritv. Documentation to establish to Seller's
reasonable satisfaction the due authorization of Buyer's acquisition of the
Property and the Partnership Interests and Buyer's execution of this Agreement
and the documents required to be delivC:red by Buyer pursuant to this Agreement
and the consummation of the Transaction.
(1) Closinl!: Statement. The Closing Statement.
(g) Other Documents. Such other documents as may be reasonably
required by the Title Company or may be agreed upon by Seller and Buyer to
consummate the Transaction.
(b) Tall Returns. If applicable, duly completed and signed real estate
transfer tax or sales tax returns.
The Purchase Price shall be paid in accordance with the terms of Section 7.2 hereof and
the items to be delivered by Buyer in accordance with the terms of Subsections (d)..(j)
and following of this Section 7.4 shall be delivered to Escrow Agent no later than 5:00
p.m. Eastern Time on the last Business Day prior to. the Closing Date.
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ARTICLE 8 - CONDITIONS TO CLOSING
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8;1 Conditions to SeUer's ObJil!stions. Seller's obligation to close the
Transaetion is conditioned on all of the following. any or all of which may be waived by
Seller by an express written waiver, at its sole option: .
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<a) Renresentations True. All representations and warranties made
by Buyer in this Agreement shall be true and correct in all material respects 0':'-
and as of the Closing Date, as if made on and as of such date except to the extent
they expressly relate to an earlier date;
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(b) Buver's Financial Condition. No petition has been filed by or
against Buyer under the Federal Bankruptcy Code or any similar state or federal
Law, whether now or hereafter existing; and
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(c) Buver's Deliveries Comnlete. Buyer shall have delivered the
funds required hereunder and all of the documents to be executed by Buyer set
forth in Section 7.4 and shall have materially performed all other covenants,
undertakings and obligations, and materially complied with all conditioDS
required by this Agreement, to be performed or complied with by Buyer-at or
prior to the Closing.
8.2 Conditions to Buver's ObJil!ations. Buyer's obligation to close the
Transaction is conditioned on all of the foUowing, any or all of which may be expressly
waived by Buyer in writing, at its sole option:
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(a) Renresentations True. Subject to the provisioDS. of Section 9.3.
all representations and warranties made by Seller in this Agreement, as the same
may be amended as provided in Section 9.3. shall be we and correct in all
material respects on and as of the Closing Date, as if made on and as of such date
except to the extent that they expressly relate to an earlier date;
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(b) Title Conditions Satisfied. At the time of the Closing. title to the
Property shall be vested in the Partnership, subject only to the Pern:iitted
Exceptions as provided in Article 4 of this Agreement;
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(c) Partnershio Matters. At the time of the Closing, the Partnership
Interests sball be free of all liens, claims and encumbrances, subject only to the
Partnership Search Matters waived by Buyer, if any, as provided in Article 4A of
this Agreement;
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(d) SeUer's Deliveries Comolete. Seller sball have delivered all of
the documents and other items required pursuant to Section 7.3 and sball have
perfoImed all other covenants, undertakings and obligations, and complied with
all conditions required by this Agreement, to be performed or complied with by
Seller at or prior to the Closing.
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(e) The Site Plan Approval (as defined in Section 8.~ shall have been
granted and is final, unless waived by Buyer.
(f) . There shall be no material adverse change in the condition of the
Property, reasonable wear and. tear and casualty excepted, and subject to the
provisions of Article 12.
8.3 Waiver of Failure of Conditions Precedent. At any time or times on or
before the date specified for the satisfaction of any condition, Seller or Buyer may elect
in writing to waive the benefit of any such condition set forth in Section 8.1 or Section
8.2. respectively. By closing the Transaction, Seller and Buyer shall be conclusively.
deemed to have waived the benefit of any remaining unfulfilled conditions set forth in
Section 8.1 and Section 8.2. respectively, provided, however, that nothing in this Section
8.3 shall effect or diminsh Seller's and/or Tarragon's obligations under Section 10.2.3.
In the event any of the conditions set forth in Section 8.1 or Section 8.2 are neither
waived nor fulfilled, Seller or Buyer (as appropriate) may exercise such rights and
remedies, if any, that such party may have pursuant to the terms of Article 11 hereof.
Nothing in this Section 8.3 shall be deemed to limit any provisions hereof that expressly
survive Closing. Notwithstanding anything herein to the contrary, including;. b~'.not
limited to Section 11.2. to the extent Buyer is entitled to terminate this Agreement.dueto
a failure to satisfy the condition described in Section 8.2(e) only, then provided all other
Buyer conditions to Closing have been satisfied or waived by Buyer and Buyer is not in
default beyond any specifically applicable notice and cure period, then the Initial Deposit
and Extension Deposit (if any) shall be non-refundable to Buyer and paid to Seller and
the Secondary Deposit shall be refunded to Buyer.
8.4 IntentionaJlv Omitted.
8.5
A nnrovals.
(a) The obligation of Buyer to consummate the acquisition of the
Property is expressly contingent upon Seller obtaining, at Seller's expense ~
following eonsents and approvals (collectively refened to as "Site Plan
Approval''):
. (i) Final approval by the City of A ventura, Florida eCity'') or the
appropriate instrumentality thereof, the Miami-Dade County Department of
Environmental Resources Management and the Shoreline Development Review
Committee, of that certain proposed site plan that includes 526 residential units
and a FAR of2 for the Project and the expiration of all appeals periods without
any Appeal, as defined below, being brought or ifbrought, resolved to the
reasonable satisfaction of Buyer. A copy of the proposed site plan as submitted
by Seller to the City is attached hereto as Exhibit M
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. (ii) The consent of all private third parties . and any
governmental or quasi-governmental agencies having jurisdiction over
improvements to the ingress and egress easement areas servicing the
Projeet as may be required by the City as a condition of the City's eonsent
to the proposed site plan in accordance with subsection (a)(i) above and
the expiration of all appeals periods without any Appeal being brought or
ifbrought, resolved to the reasonable satisfaction of Buyer.
(b) Seller agrees to use its cornmercially reasonable diligent efforts to
obtain the Site Plan Approval. Seller bas made application to the City for the Site
Plan Approval. Buyer shall cooperate with Seller in all respects in obtaining the
Site Plan Approval. Seller (with Buyer's cooperation) shall diligently respond to
Governmental Authorities when said authorities request modifications,
elarifications or additional materials with respect to the issuance of the Site Plan
Approval. Seller shall keep Buyer apprised on a regular basis of its efforts to
obtain the Site Plan Approval. Upon request by Buyer, Seller shall send Buyer
copies of material submissions made to Governmental Authorities in connection
. With obtaining the Site Plan Approval. In the event this Agreement continues in
effect during the pendency of any "Appeal" (which shall mean an appeal brought
by a third party against the granting of the Site Plan Approval in accordance.,with
applicable Laws), Seller shall use its commercially reasonable efforts to cause the
Site Plan Approval to be upheld, and Buyer shall cooperate in such efforts.
(c) If the Approval Date, as defined below, has not occurred on or
prior to the Closing Date, as extended by payment of the Extension Deposit in
accordance with this Agreement, Buyer shall have the right to elect to extend the
Closing Date (the "Approval Extension Option") for successive periods of thirty
(30) days (or less for the last such period) ("Approval Extension Period") until
September 19, 2006 ("Approval Extension Deadline"). Buyer shall make such
election by delivering written notice of its election three (3) Business Days prior
.to the expiration of the then-applicable Approval Extension Period and paying
directly to Seller (by federal funds wire transfer) a payment of Four Hundred
Thousand Dollars ($400,000.00) ("Approval Extension Payment'') for each
Approval Extension Period prior to 5:00 p.ol. (Eastern Time) on the expiration of
the then-applicable Approval Extension Period. Buyer shall deliver written notice
ofits election to make the first Approval Extension Payment no later than ten (10)
Business Days prior to the Closing Date (as extended) ("Extension Notice") and
shall make the Approval Extension Payment on or before 5:00 p.m. (Eastem
Time) on September 19, 2005 as such ;First Extension Oate may be extended as
contemplated in the definition of "Closing Date". The Approval Extension
Payments shall not be applicable to the Purchase Price and shall be non-
refundable to Buyer except in the event of Seller's default and except as otherwise
specifically set forth in this Agreement. To the extent the Approval Date occurs
prior to the expiration of an Approval Extension Period, the Buyer and Seller shall
proceed to Closing in accordance with this Agreement within thirty (30) Business
Days of the Approval Date and.the final Approval Extension Payment shall be
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prorated through the Closing Date. In the event Site Plan Approval is not
obtained by the expiration of the then-applicable Approval Extension Period and.
Buyer has not made aIi Approval Extension Payment in accordance with this
Section 8.5. then Buyer shall be deemed to have elected to terminate this
Agreement, and in such event the Initial Deposit shall be non-refundable to
Buyer; the Extension Deposit and Secondary Deposit shall be promptly paid to
Buyer; and neither party shall thereafter have any further liability or obligations
hereunder except as expressly set forth in the Agreement.
. (d) For purposes of detennining the Closing Date during the Approval
Extension Period, the Site Plan Approval shall be deemed obtained on the date
(the "Approval Date") that Seller's application therefore is formally and finally
approved by the City and the other applicable entities referenced in Section
.8.5(a)(i) above after the expiration of all Appeal periods or resolution of all
Appeals to Buyer's reasonable satisfaction.
( e) Buyer shall have the right to waive the Site Plan Approval
eontingency set forth in this Section 8.5 at any time while this Agreement remains
in effect, by giving written notice thereof to Seller and the parties shall proceed to
Closing within thirty (30) days of delivery of such notice. .
(f) In the event that the Approval Date is after March I, 2006, then
Buyer shall not be obligated to close on the Closing Date if the Real Property is
not vacant of all tenants and other parties in possession, provided Buyer deliv.ers
written notice of its intention to close 65 days prior to the Closing Date. Seller
shall have the right to adjoum the Closing Date until the Real Property is vacant
(and Buyer shall remain obligated to close the Transaction without a reduction of
the Purchase Price) and at such time, the parties shall proceed to Closing within
three (3) Business Days ofvacaney. If Buyer waives the vacancy condition then
the parties proceed to Closing within 30 days of the Approval Date. In no event
shan Seller have an obligation to deliver the Real Property vacant of tenants. to the
extent the Closing Date is on or before March 31, 2006.
(g) (i). To the extent the City enacts a moratorium and as a result
thereof, the FAR of the Property is reduced below 2.0 or the number of permitted
residential units is reduced below 526, then within ten (10) days after the Seller's
written notice to Buyer of the effectiveness of such reduction, Buyer shall be
entitled to terminate this Agreement by delivering written notice thereof to Seller
on or before the expiration of such 10-day period and this Agreement shall be
deemed terminated and the Deposit and any Approval Extension Payments shall
be returned immediately to Buyer and the parties shall have no further obligations
hereunder except those that specifically survive termination of this Agreement. If
Buyer does not deliver the aforementioned notice, Buyer shall be deemed to have
waived its right to terminate this Agreement pursuant to this Section 8.5(1Z)(i). t
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(ii) If at any time during the term of this Agreement the City
proposes to Seller tenns for a site plan that would reduce the FAR of the Property
below 2.0 or the number of permitted residential units below 526 and Se1Jer
would agree to proceed with such proposal, then Seller shall deliver Buyer written
notice of such proposal ("Proposal Noticej, Within five (5) Business Days after
receipt of the Proposal Notice, Buyer shall deliver .written notice to Seller of
Buyer's election to either terminate: this Agreement or proceed to Closing. If
Buyer elects to terminate this Agreement, then the Deposit and any Approval
Extension Payments shall be returned immediately to Buyer and Buyer shall also
have the right to recover the documented, actual, out-of-pocket expenses incurred
by Buyer in connection with this Agreement and Buyer's due diligence
investigation of the Property up to One Million Dollars ($1,000,000.00) in the
aggregate and this Agreement shall be deemed terminated and the parties shall
have no. further obligations hereunder except those. that specifically.. survive
termination of this Agreement. If Buyer elects to proceed to Closing, then the
Site Plan Approval condition set forth in Section 8.5(a) shall be modified to delete
the FAR 2.0 and 526 unit requirements and instead reflect the FAR and/or number
of units set forth in the Proposal Notice. If Buyer fails to timely respond to the
Proposal Notice, Buyer shall be deemed to have elected to "proceed to Closing."
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(Iii) If the City enacts a moratorium that results in the prohibition. or
official tolling of the continued review of the Site Plan application ("Review
Moratorium") by the City and/or the other applicable entities referenced in
Section 8.5(a)(i) above, then the Approval Extension Deadline shall be extended
for 180 days or the number of days the RcMew Moratorium is in effect,
whichever is shorter ("Moratorium Period"). Buyer's obligation to make: any
Approval Extension Payment shall be suspended until the expiration of the
Moratorium Period and no Approval Extension Payments shall be due and
payable during the Moratorium Period. In the event that the Review Moratorium
is fully and finally lifted during the Moratorium Period,.this Agreement shall
immediately upon such lifting continue in effect. In the event that this Agreement
shall continue in effect after the expiration of the MoratoriUD;l Period, either as a
result of the lifting of the Review Moratorium or the exercise of the option in
clause (iv) (A) (1) below, Buyer shall resume payment of the Approval Extension
Payments for each 30 day period for which Buyer exercises its Approval
Extension Option as provided in Section 8.5(c),
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(iv) In the event and only in the event that the Review Moratorium is not
lifted during the Moratorium Period, within five (5) Business Days after the
expiration of the Moratorium Period, Seller shall deliver written notice to Buyer
of Seller's election ("Seller's Election'') to either:
(A) Grant Buyer the option, at Buyer's election, to either:
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(I) proceed with the transaction as contemplated by this Agreement in
accordance with the applicable tenns hereof and authorize the release of the Initial
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Deposit from Escrow Agent to Seller (it being acknowledged that any such release shall
not diminish any rights of Buyer to the return of the Initial Deposit as expressly set forth
in this Agreement); or
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(2) tenninate this Agreement and receive a return of the Deposit and all
interest earned thereon within two (2) Business Days after such election by Buyer,
whereupon this Agreement shall terminate and the parties shall have no further rights or
obligations hereunder except for obligations which expressly survive the termination of
this Agreement;
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J3uyer's election of either (1) or (2) immediately above must occur within five (5)
Blisiness Days after its receipt of Seller's Election, the failure of which shall result in
Buyer electing (1) above. . .
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(B) To have this Agreement continue in effect for an additional period
of time (the "Additional Moratorium Period"} equal to ISO days or the number of
days a Review Moratorium continues in effect, whichever is shorter. J3uyer's
obligation to make the any Approval Extension Payments shall be suspended until
the expiration of the Additional Moratorium Period and no Approval Extension
Payments shall be due and payable during the Additional Moratorium Period.
Upon the expiration of the Additional Moratorium Period, Seller shall, within five
(5) Business Days thereafter, deliver written notice of the Seller's. Election
described in Section 8.5(g)(iv)(A) only and Buyer shall have the right to elect
either option (I) or (2) thereunder and subject to the time period set forth therefor,
provided that, Buyer's right to eleet such option (2) shall only be applicable if a
Review Moratorium is continuing, it being understood that in the event that the
Review Moratorium is fully and finally lifted during the Additional Moratorium
Period, this Ag,.eement shall immediately upon such lifting. continue in effect. In
the evelll that this Agreement shall continue in effect after the expiration of the .
Additional Moratorium Period, Buyer shall resume payment of the Approval
Extension Payments for each 30 day period for which 13uyer exercises its
Approval Extension Option as provided in Section S.5(c),
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Buyer's rights under this Section 8.S(g)(iv) are in addition to and not in lieu of Buyer's
rights under Section 8.S(g)(i).
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ARTICLE 9. REPRESENTATIONS AND WARRANTIES
9.1 Buver's Representations. Buyer represents and \YlUfllllts to the best of
Buyer's knowledge to, and covenants with, Seller as follows:
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9.1.1 Buyer's Authorization. Buyer (and as used in this Section 9.1.1.
the term Buyer includes any general partners or managing members of Buyer)
(a) is duly organized (or formed), validly existing and in good standing under the
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Laws of its State of organizatioJ:!. and, as and to the extent required by Laws for
this Transaction, the State in which the Property is located, (b) is authorized to
consummate the Transaction and fulfi11 all ofits obligations hereunder and under
all documents contemplated hereunder to be executed by Buyer, and (c) has a11
necessary power to execute and deliver this Agreement and a11 documents
contemplated hereunder to be executed by Buyer, and to perform a11 of its
obligations hereunder and thereunder. This Agreement and a11 documents
contemplated hereunder to be executed by Buyet, have been duly authorized by
all requisite partnership, corporate or other required action on the part of Buyer
and are the valid and legally binding obligation of Buyer, enforceable in
accordance with their respective terms. Neither the execution and delivery of this
Agreement and all documents contemplated hereunder to be executed by Buyer,
nor the performance of the obligations of Buyer hereunder or thereunder will
result in the violation of any Law or any provision of the organizational
documents of Buyer or will conflict with any order or decree of any court or
governmental instrumentality of any nature by which Buyer is bound. The
individual(s) executing this Agreement and any Closing documents on behalf of
Buyer have the legal power, right and actual authority to bind Buyer to the terms
hereof and thereof. .
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9.1.2 Buver's Financial Condition. No petition has been ;filed. by "Or
against Buyer under the Federal Bankruptcy Code or any similar state or federal
Law.
9.1.3 Buver's Desll!nee. The Buyer's Designees are the persons
employed or otherwise affiliated with Buyer who have the most significant
knowledge about Buyer's Due Diligence and who are responsible for managing.
overseeing, directing and reviewing Buyer's Due Diligence in connection with the.
Transaction. All Buyer's Reports and other Due Diligence shall be directed and
delivered to Buyer's Designees.
9.1.4 Survival. Buyer's representations shall survive Closing for a
period of 180 days.
9.2 Seller's Representations. Seller represents and warrants to Buyer as
follows:
9.2.1 Seller's Authorization. Seller (and as used in this Section 9.2.1.
the term Seller includes any general partners or managing members of Seller)
(a) is duly organized (or formed), validly existing and in good standing under the
Laws of its State of organization and, as and to the extent required by applicable
Laws, of the State in which the Property is located, (b) is authorized to
consummate the Transaction and fulfill all of its obligations hereunder and under
all documents contemplated hereunder to be executed by Seller, (c) has all
necessary power and authority to execute and deliver this Agreement and all
documents contemplated hereunder to be executed by Seller, and to perform all of
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its obligations hereunder and thereunder, (d) is the sole and beneficial owner of
the Partnership Interests whieh constitute 100% of the ownership interests in the
Partnership and has full and complete title thereto with the right to seD the
Partnership Interests, (e) represents and warrants that there are no liens, pledges or
other encumbrances of any kind against the Partnership Interests and (f) bas Dot
entered into any other agreement to transfer its Partnership Interests or any
portion thereof and there are no undisclosed interests, present or future. in the
Partnership Interests or the Partnership, nor does Seller know of any' assertion of
such interest or any other circumstances which would entitle any person to assert
such an interest. 1ms Agreement and all docwnents contemplated hereunder to
be executed by SeHer, have been duly authorized by all requisite partnership,
corporate or other required action on the part of Seller and are the valid and
legally binding obligation of Seller, enforceable in accordance with their
respeetive terms. Neither the execution and delivery of this Agreement and. all
documents contemplated hereunder to be executed by Seller, nor the performance
of the obligations of Seller bereunder or thereunder will result in the violation of
any Law or any provision of the organizational documents of .Seller or will
conflict with any order or de~ree of any court or governmental instrumentality of
any nature by which Seller is bound. The individual(s) executing this Agreement
and any Closing documents on behalf of Seller have the legal power, right.and
authority to bind such Seller to the terms hereof and thereof. With respect to the
foregoing representations and warranties, each of TARR GP, TARR LP and
Shefaor shall be deemed to make such representations and warranties on its own
behalf only and not on bebalf of any other partner of the Partnership.
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9.2.2 Other Seller's Renresentations.
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(a) Seller and the Partnership are not a party to any litigation,
arbitration or administrative proceeding with any person concerning my
aspect of Property or which affects Seller's rights to the Property.
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(b) As of the date of this Agreement, except for (i) the
Contracts listed in Exblbit B attached hereto, (n) the Leases, and (ill) the
Permitted Exceptions, the Partnership has not entered into any contracts,
subcontracts or agreements affecting the Property that will be binding
upon Buyer.after the Closing.
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(c) Except as listed in Exhibit N attached hereto, the
Partnership has not received any written notice of default from any parties
to the Contracts that has not been cured by the Partnership on or before the
date hereof, nor has the Partnership delivered a written notice of default to
such parties that has not been cured.
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(d) As of the date of this Agreement, the only parties having
possessory rights or tenants under signed Leases at the Property are the
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tenants listed in Exhibit 0 attached hereto and incorporated herein by this
reference. .
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(e) Except as listed in Exbibit N attached hereto, as of the date
of this Agreement and except for violations that have been cured in
aecordance with applicable law, the Partnership has not received any
written notice from any governmental authority with respect to the
violation of any zoning law or ordinance or any other laws with respect to
the Property.
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(f) The rent roll attached as Exhibit 0 and incorporated.
herein by this reference (the "Rent Roll~, including any explanatory
footnotes thereto, is true, correct and complete in all material respects.
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(g) No Rents or Leases have been assigned, transfem:d or
hypothecated by the Partnership, except by virtue of mortgage loan
instruments which shall be paid in full by Seller at or prior to Closing, and
except as set forth in Exhibit B attached hereto with respect to leasing
commission agreements with respect to the Property.
(h) Seller has no environmental reports concerning the
Property in its possession or control, other than those provided to Buyer
during the Due Diligence Period and other than as may be set forth in such
reports, Seller has no actual knowledge, without independent inquiry, of
the presence on or under the Property of !lDy hazardous materials or
hazardous substances, as such tenns are defined in applicable federal and
state environmental laws, in a manner which violates any such laws.
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(i) There are no brokerage agreements with respect to leasing
the Property except for locater agreements agreed to in the normal course
of business whicb payments shall be the responsibility of Seller, provided
such payments relate to leases entered into prior to the Closing Date.
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9.2.3 Seller's PartnershiD Warranties. Seller represents and warrants
to Buyer as follows:
(a) The Partnership Interests constitute. 100% of the ownership
interests in the Partnership, and no person or entity other than Buyer has
any option or right to acquire any interest in the Partnership.
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(b) No written notice, judgment, writ, decree, injunction or order
entered in any action, suit or proceeding from any federal, state, county,
municipal or. other governmental or quasi-governmental agency,
department, board, commission, bureau or other entity or instrumentality
(each, a "Governmental Authoritv") has been received by Seller or the
Partnership of the violation of any applicable federal, state, county,
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municipal or other governmental or quasi-governmental statute, law,
ordinance, judgment, writ, decree, iI\junction, rule, ruling, regulation,
restriction or order relating to the Partnership's organization as an entity or
internal administration (all of the foregoing being hereinafter, collectively
referred to as the "Lellal Reauirelp-entj, which Violation has not been
corrected.
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(c) Except as listed in Exhibit N attached hereto and incorporated
herein by this reference, there is no current or pending litigation,
arbitration or administrative proceeding against or involving the.
Partnership.
(d) There are no employees of Seller or the Partnership whom
Buyer or the Partnership will be obligated to retain or compensate or
provide benefits for after the Closing Date.
(e) The Partnership is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of Florida
and its status is active. The only activities conducted by the Partnership
since its inception have been the acquisition, development, COnstr.\lction,
ownership and operation of the Property and the Partnership owns no
assets other than as disclosed herein.
. (f) The Partnership has at all times since the date of its formation
and through the date hereof; beCIl, held its!:1f out as, claimed to be, and
conducted its business as, a partnership -(as such term is defined in the
Internal Revenue Code of 1986, as amended (the "Code'')) and has at all
times had.a reasonable basis within the meaning of Section 6662 of the
Code for claiming sueb classification. The Partnership has not :liledan
election to be treated as an association taxable as a corporation for United
States federal income tax purposes or for state or local incOme tax
purposes. Neither the Partnership nor Seller has been notified, either by
oral or written communication, of any examination concerning the
classification of the Partnership as a partnership under the Code, or of any
audit or potential audit of the tax return of the Partnership, on a federal,
state or local level.
(g) To Seller's knowledge, neither the Partnership nor any party
comprising Seller is in default in respect of any of its contractual .
obligations relating to the organization of the Partnership as an entity or
internal adnlinistration or affairs of the Partnership (as opposed to the
Property) that would have an adverse affect on the Partnership after the
effectiveness of the transaction contemplated hereby.
(h) All tax returns required by law to be filed by the Partnership
prior to the Closing will be filed (or extensions to file will be obtained and
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such returns will be filed before the expiration of such extensions), and all
taxes, if any, shown on such returns or otherwise determined to be due,
together with any interest or penalties thereon, will have been paid.
(i) The Partnership Agreement remains in full force and effect and
has not been modified or amended other than as set forth in Exbibit J. A
true, complete and cOrrect copy of the Partnership Agreement and its
certificate of limited partnership as amended to date, is attached hereto as .
Exhibit J.
G) Each of TARR GP, TARR LP and Shefaor owns all of its
Partnership Interests. Neither party makes any representation or warranty
concerning the other party's ownership of such other party's Partnership
Interests.
(k) There is not currently pending. and Seller knows of no
threatened (i) audit or investigation of the Partnership with respect to any
liability for income taxes relating to the Partnership for which the
Partnership may be liable or (ll) any threatened claims or assessments for
income taxes against or relating to the Partnership. The Partnership' has
not granted any waiver of any applicable statute of limitations. or any
consent for the extension of the time for the assessment of any tax against
the Partnership that is currently in effect (this shall not include extensions
to file tax returns).
(I) Intentionally omitted.
(m) The Operating and Financial Statements for the Property,
which are attached hereto as Exhibit H are true, correct and complete in
all material respects as of their respective dates.
(n) A1J of the date hereof (or the respective date identified on a
document), the only asset of the Partnership is. the Property and the only
Liabilities of the Partnership, actua1 and contingent, are those relating to
the Property, as fully disclosed herein, including without limitation, the
Leases, Contracts, Permitted Exceptions and Partnership Search Matters
and those set forth on Exhibit H. At Closing, the only asset of the
Partnership is the Property and the only Liabilities of the Partnership,
actual and contingent, are those relating to the Property, as fully disclosed
herein, including without. limitation, the Leases, Contracts, Permitted
Exceptions and Partnership Search Matters and those on the financial and
operating statements and any tax returns delivered to Buyer (and Seller
shall deliver its most recent statements and'tax returns to Buyer).
(0) The Designated Employees are the persons employed or
otherwise affiliated with the Seller who have the most significant
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knowledge about the Partnership, Seller and the Property and whose
knowledge is current with respect thereto.
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(P) The Partnership has duly filed all required Federal, State, local
and any other income, employment, real and personal property, intangible
and documentary stamp tax returns of the Partnership required to be :filed
on or prior to the date hereof (or extensions have been granted), and has
paid all taxes, fees, assessments, interest and penalties due in connection
with such returns. All such returns are true, accurate and complete in all
material respects. The Partnership is current in all other governmental or
quasi-governmental tax returns.
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(q) No Seller bas (i) made a general assignment for the benefit of
creditors, (ii) filed. any voluntary petition in bankruptcy or suffered. the
filing of any involuntary petition by such Sellet's.creditors, (rii) suffered
the appointment of a receiver to take possession of any of the Property or
all, or substantially all, of such Seller's other assets, (iv) suffered the
attachment or other judicial seizure of any of the Property or all, or
substantially all, of such SeHer's other assets, (v) admitted in writing its
inability to pay its debts as they come due, or (vi) made an offeF-. of
settlement, extension or composition to its creditors generally.
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(r) As of the dates of the information on Exbibit H the Property.
all machinery and all fixtures attached to or made a part of the Property
(other than owned by tenants) is now owned or leased and will on the
. Closing Date be owned or leased by the Partnership free and clear of any
conditional bills of sale, chattel mortgages, security agreements or
financing statements or other security interests of any kind except. for the
interests of any secured lender of the Partnership disclosed on the financial
or operating statements attached as Exbibit H.
(s) The Partnership has never adopted or had in effect any
qualified retirement plans; pension plans or other employee benefit plans.
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(t) To our knowledge, the Partnership does not do business in or
derive ineome from any state, local, territorial or foreign taxing
jurisdiction, other than the State of Florida.
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As used in this Section, the words "SeHer's knowledge" relate to each individual
partner's "SeHer's knowledge" on its own behalf and not on behalf of any other
partner in the Partnership. The Designated Employees are the persons employed,
or otherwise. affiliated with the Partnership who have the most significant
knowledge about the Partnership and the Property..
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9.3 General Provisions.
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9.3.1 No Representation As to Leases. Seller does not represent or.
wanant that any particular Lease or Leases will be in force or effect on the
Closing Date or that the tenants will have performed their obligations thereunder.
9.3.2 SeIJer's Warranties Deemed Modified. To thll extent that Buyer
knows or is deemed to know prior to the expiration of the pue Diligence Period
that Seller's Warranties are inaccurate, untrue or incorrect in any way, and Buyer
elects to proceed with this transaction notwithstanding such knowledge, such
Seller's Warranties shall be deemed modified to reflect Buyer's knowledge or
deemed knowledge, as the case may be.
9.3.3 Notice of Breach: SeIJer's Ril!ht to Cure. If after the expiration
of the Due Diligence Period but prior to the Closing, Buyer's Designees obtain
actual knowledge that any of Seller's Warranties are untroe, inaccurate or
incorrect in any material respect, Buyer shall give Selle!, written notice thereof
within five (5) Business Days of obtaining such knowledge (but, in any event,
prior to the Closing). If ator prior to the Closing, Seller obtains actual knowledge
that any of Seller's Warranties are untroe, inaccurate or incorrect in any material
respect, Seller shall give Buyer written notice thereof within five (5) Business
Days of obtaining such knowledge (but, in any event, prior to the Closing): In
either such event, Seller shall have the right to cure the underlying condition
giving rise to such misrepresentation or breach and shall be entitled. to a
. reasonable adjournment of the Closing (not to exceed thirty (30) days) for the
purpose of such cure. If .Seller is unable to so cure any misrepresentation or
breach, then Buyer, as its sole remedy for any and all such materially untrue,
inaccurate or incorrect material representations or warranties, shall elect. either
(a) to waive such misrepresentations or breaches of representa1ions and warranties
and consummate the Transaction without any reduction of or credit against the
Purchase Price, or (b) to terminate this Agreement by written notice given to
Seller on the Closing Date, in which event this Agreement shall be terminated,
any Deposit, together with any interest hereon shall be returned to Buyer, and,
thereafter, neither party shall have any further rights or obligations hereunder
except as provided in any section hereof that by its terms expressly provides that
it survives any tennination of this Agreement or (c) seek specific performance of
this Agreement. If any of Seller's Warranties are untrue, inaccurate or incorrect
but are not, in the aggregate, untrue, inaccurate or incorrect in any material
respect, Buyer shall be deemed to waive such misrepresentation or breach of
warranty, and Buyer shall be required to consummate the Transaction without any
reduction of or credit against the Purchase Price. The untruth, inaccuracy or
incorrectness of Seller's Warranties shall be deemed material only if Buyer's
aggregate damages resulting from the untruth, inaccuracy or incorrectness of
Seller's Warranties are reasonably estimated to exceed SI0,OOO.00.
9.3.4 Survival: Limitation on SeIJer's Liabilitv. Seller's Warranties
shall survive the Closing and not be merged therein for a period of one hundred
eighty (180) days and SeIJer shall only be liable to Buyer hereunder for a breach
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of Seller's Warranties (except Seller's Partnership Warranties) made herein or in
any of the documents executed by Seller at the Closing with respect to which a
claim is made by Buyer against Seller on or before two hundred forty (240) days
after the date of the Closing. Seller's Partnership Warranties shall survive the
Closing for eighteen (18) months. Anything in this Agreement to the contrary
notwithstanding, the maximum aggregate liability of Seller for breaches of
Seller's Warranties shall be limited as set forth in Section IS. IS hereof:
Notwithstanding the foregoing, however, if the Closing occurs, Buyer hereby
expressly waives, relinquishes and releases any right or remedy available to it lit
law, in equity, under this Agreement or otherwise to make a claim against Seller
(or Tarragon Corporation ("Tarral!on'J, as the case may be) for damages thlIt
Buyer may incur, or to rescind this Agreement and the Transaction, as the result
of any of Seller's Warranties being untrue, inaccurate or incoxrect if (a) Buyer
knew or is deemed to know thlIt such representation or warranty was . untrue,
inaccurate or incorrect at the time of the Closing, or (b) Buyer's damages as a
result of such representations or warranties being untrue, inaccurllte or ineorrec:t
arc reasonably estimated to aggregate less than $10,000.00. Nothing in this
Section 9.3.4 shall effect or diminsh Seller's and/or Tarragon's obligations under
Section 10.2.3.
ARTICLE10-COVENANTS
10.1 Buver's Covenants. Buyer hereby covenants as follows:
10.1.1 Confidentialitv. Buyer acknowledges that any information
heretofore or hereafter furnished to Buyer with respect to the Partnership Interests
or the Property has been and will be so furnished on the condition that. Buyer
maintain the confidentiality thereof. Accordingly, Buyer shall hold, and shall
cause Buyer's Representatives to hold, in strict confidence; and Buyer shall not
disclose, and shall prohibit Buyer's Representatives from disclosing, to any other
person without the prior written consent of Seller until the Closing shall have
been consummated, (a) the terms of the Agreement, (b) any of the information in
respect of the Partnership Interests or the Property delivered to or for the benefit
of Buyer whetherby any Buyer's Representatives or by Seller or any of the Seller
Parties, including, but not limited to, any information heretofore or hereafter
obtained by Buyer or any Buyer's. Representatives in connection with its Due
Diligence, and (c) the identity of the Seller, and, if applicable, the identity ofany
direct or indirect owner of any beneficial interest in Seller. In addition, Buyer
hereby agrees that, after Closing, it shall continue to hold, and shall cause Buyer's
Representatives to hold, the terms of this Agreement and the identity of Seller,
and, if applicable, the identity of any direct or indirect owner of any beneficial
interest in Seller in strict confidence, and Buyer shall not disclose, and shall
prohibit Buyer's Representatives from disclosing, such information to any other
person without the prior written consent of Seller. In the event the Closing does
not occur or this Agreement is terminated, Buyer shall promptly return to Seller
all copies of documents containing any of such information without retaining any
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copy thereof or extract therefrom. Notwithstanding anything to the contrary
hereinabove set forth, Buyer may disclose such information (i) on a need-to-know
basis to its employees, members of professional firms serving it or potential
lenders, investors, joint venture partners and unit purchasers, (ii) as required by
applicable'Laws or as any governmental agency may require in order to comply
with applicable Laws, or (ill) to the extent that such information is a matter of
public record. The provisions of this Subsection 10.1.1 shall survive any
termination of this Agreement.
10.1.2 Buver's Indemnitv. In addition to the indemnification set forth in
the Buyers ' As-Is Certificate thlIt Buyer is delivering in connection with the
Closing, Buyer hereby agrees to indemnify, defend, and hold Seller and each of
the other Seller Parties free and hannless from and against any and all Liabilities
(including reasonable attorneys' fees, expenses and disbursements) arising out of
or resulting from (a) the breach of the terms of Subsection 10.I.l or (b) the entry
. on the Real Property and/or the conduct of any Due Diligence by Buyer or any of
Buyer's Representatives at any time prior to the Closing; provided, however, thlIt
Buyer's obligations under this clause (b) shall not apply to the mere discovery of
an pre-existing environmental or physical condition lit the Property. The
foregoing indemnity shall survive the Closing (and not be merged therein) :or, any
earlier termination of this Agreement.
10.2 Seller's Covenants. Seller hereby covenants as follows:
10.2.1 Service. Contracts.
(a) Without Buyer's prior consent, between the date hereof and the
Closing Date Seller shall not permit the Partnership to extend, renew, replace or
modifY any Contract or enter into any new service contract or agreement unless
such Contract, service contract or agreement (as so extended, renewed, replaced
or modified) can be terminated by the owner of the Property without penalty on
not more than thirty (30) days' notice. Seller shall provide Buyer not less than
three (3) Business Days' prior written notice to provide its consent to any such
contract, extension, renewal, replacement or modification. If Buyer fails to object
in writing to any such proposed action within three (3) Business Days lifter receipt
of the aforementioned notice, Buyer shall be deemed to have approved the
proposed action. Buyer's consent shall not be unreasonably withheld or delayed
with respect to any such transaction thlIt is proposed prior to the end of the Due
Diligence Period, but thereafter, Buyer, in its sole and absolute discretion, shall be
entitled to grant or withhold its consent with respect to any such transaction that is
proposed between the end of the Due Diligence Period and the Closing.
(b) On or .before the Closing, Seller shall cause the Partnership to
terminate any management, development, consulting agreements currently in
effect with respect to, the Property and to which the Partnership is a party
including without limitation any agreements with Shefaor Development LLC,
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Aventura Tarragon GP, LLC, and Aventura Tarragon LP, LLC lit the sole cost
and expense of Seller and deliver written evidence thereof. In addition, if Buyer
notifies Seller in writing prior to the expiration of the Due Diligence Period thlIt
Buyer elects to have any other Contracts terminated prior to Closing, Seller shall
use good faith and reasonable efforts to cause the Partnership to terminate such
Contracts so designated by Buyer effective as of thc Closing Date; provided,
however, that in no event shall Seller or the Partnership be required by the
foregoing to pay any sums (or incur any other liability) to the other parties to said
Contracts in connection therewith. If Seller is unable to cause the Partnership to
so terminate the Contracts mentioned in the immediately preceding sentence
effective as of the Closing Date without payment of a termination fee, such
Contracts shall continue to be obligations of the Partnership after Closing.
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10.2.2 Maintenance of Pronerty. Except to the extent Seller is relieved
of such obligations by Article 12 hereof, between the date. hereof and the Closing
Date Seller shall cause the Partnership to maintain and keep the Property in a
manner consistent with the Partnership's past practices with respect to the
Property; nrovided. however. that, subject to Buyer's right to terminate this
Agreement prior to the expiration of the Due Diligence Period in accordance with
the terms of Article 5 hereof, Buyer hereby agrees that, except for breaches.ofthis
Section 10.2.2. Buyer shall accept the Property subject to, and Seller shall have no
obligation to cure, (a) any violations of Laws, or (b) any physical conditions thlIt
would give rise to violations of Laws, whether the same now exist or arise prior to
Closing, except (i) only to the extent that the Partnership is obligated with respect
thereto following demand of one or more tenants of thc Property in accordance
with the terms of their Leases with respect to matters which arise after the Due
Diligence Period and to the extent thllt such repair is consistent with the
Partnership's past practices with respect to the Property and (ii) Seller shall cure
at or prior to Closing any violation of Laws relating to the Property thllt is of
record prior to the Closing Date and for which Seller has received written notice
from Buyer prior to Closing, provided such violation relates to a tenant-occupied
building. Between the date hereof and the Closing Date, Seller will advise Buyer
of any written notice the Partnership receives after the date hereof from any
governmental authority of the violation of any Laws regulating the condition or
use of the Property. Seller shall be entitled to adjourn Closing for up to 30 clays to
cure any violation Seller is specifically required to cure hereunder.
10.2.3 Seller's Indemnitv. Buyer is acquiring all of the Partnership
Interests in the Partnership in lieu of acquiring the assets of the Pl!f1:Ilership. It is
the intention of the parties to this Agreement that neither the Partnership (as
constituted after Closing) nor Buyer shall be responsible for any liabilities,
obligations or undertakings of the Partnership which arose prior to the Closing
Date other than continuing contractual obligations of the Partnership relating to
the Leases, Contracts, Permitted Exceptions, Partnership Search Matters that have
been waived by Buyer in accordance with Article 4A. and liabilities relating to
construction of the improvements (but not the payment for construction werle
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performed prior to the Closing Date pursuant to a written binding agreement
between the Partnership and a third party) and the physical, structural and
environmental condition of the Property. Therefore, as of the Closing Date, Seller
and Tarragon agree to indemnify and hold harmless Buyer and Partnership (as
constituted after Closing) from and against (x) any losses, costs, claims.
liabilities, damages and eicpenses (including, without limitation, interest,
penalties, and reasonable attorneys' fees and disburSements) which the Partnership
or Buyer may suffer, incur or be obligated to perform as a result of any event,
liability, obligation, debt, contract or other commitment of any kind or nature
whatsoever which occurred or arose or a state of facts which existed, or resulted
from an event which occurred or a state of facts which existed, prior to Ciosing
Date, other than the continuing contractual obligations of the Partnership relating
to the Leases, Contracts, Permitted Exceptions and Partnership Search Matters
that have been waived by Buyer in accordance with Article 4A. and liabilities
relating to cotlstruction of the improvements (but not the payment for construction
work performed prior to the Closing Date pursuant to a written binding agreement
between the Partnership and a third party) and the physical, structural and
environmental condition of the Properly and (y) any loss, cost, liability, damage
and expense (including reasonable attorneys fees and disbursements) which the
Buyer may suffer or incur as a result of a breach of any of Seller's Partnership
Warranties. The foregoing indemnity shall not apply with respect to any loss,
liability, cost, damage or expense incurred by Buyer and arising from or related to
the Leases, Contracts, Permitted Exceptions, and Partnership Search Matters that
have been waived by Buyer in accordailce with Article 4A. construction of the
improvements (but not the payment for construction work performed prior to the
Closing Date pursuant to a written binding agreement between the Partnership
and a third party), or the physical, structural or environmental condition of the
Property. The provisions of this Section shall survive the Closing for eighteen
(18) months.
10.2.4 Insurance. Seller shall at all times prior to Closing cause the
Partnership to maintain in effect the casualty and liability insurance currently in
effect with respect to the Real Properly.
10.2.S Indebtedness. Seller shall not permit the Partnership to incur any
new indebtedness, including the conveyance, pledge or encumbrance of the
Partnership Interests, other than trade payables incurred in the ordinary course of
operating the Real Property.
10.2.6 Improvements. Seller shall not permit the Partnership to
commence any improvements or alterations to the Real Property after the date
hereof, other than ordinary repairs and replacements. .
10.2.7 Seller shall hold in strict confidence and shall not disclose to any
other person without the prior written consent of Seller until the Closing shall
have been consummated, (a) the terms of the Agreement and (b) the identity of
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the Buyer, and, if applicable, the identity of any direct or indirect owner of any
beneficial interest in Buyer. In addition, Seller hereby agrees that, after Closing, it
shall continue to hold the terms of this Agreement and the identity of Buyer, and,
if applicable, the identity of any direct or indirect owner of any beneficial interest
in Buyer in strict confidence, and Seller shall not disclose such information to any
other person without the prior written consent of Buyer. Notwithstanding
anything to the contrary hereinabove set forth, Seller may disclose such
information (i) on a need-to-know basis to its employees, members of
professional firms serving it or potential lenders, investors, and joint venture
partners, (ii) as required by applicable Laws or as any governmental agency may
require in order to comply with applicable Laws, or (iii) to the extent that such
information is a matter of public record. The provisions of this Subsection 10.2.7
shall survive any termination of this Agreement. .
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10.2.8. Maintenance of PartnershlD Status and Accountinl! Method.
Seller shall not (i) take or allow any action that would change its classification as
a partnership for federal income tax purposes, or (ii) change its accounting
method for federal income taX purposes.
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10.3.1 Publicitv. Seller and Buyer each hereby covenant and agree thlIt
(a) prior to the Closing neither Seller, the Partnership nor Buyer shall issue any
Release (as hereinafter defined) with respect to the Transaction without the prior
written consent of the other, except to the extent required by applicable Law, and
(b) for the first three months after the Closing, any Release issued by either Seller,
the Partnership or Buyer shall be subject to the review and approval of both
parties (which approval shall not be unreasonably withheld or delayed), except to
the extent required by applicable Law. If either Seller, the Partnership or Buyer is
required by applicable Law to issue a Release, such party. shall, at least two (2)
Business Days prior to the issuance of the same, deliver a copy of the proposed
Release to the other party for its review. As used herein, the term ''Release" shall
mean any press release or public statement with respect to the Transaction or this
Agreement. Notwithstanding the foregoing, after Closing, Buyer or the
Partnership (as constituted after Closing) may issue a Release without Seller's
prior approval so long as neither Seller nor any of the Seller Parties are named in
the Release.
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10.3.2 Broken. Seller and Buyer expressly acknowledge that Seller's
Broker and Buyer's Broker (if any, as defined above) have acted as the exclusive
brokers with respect to the Transaction and with respect to this Agreement. Seller
shall pay any brokerage commission due to Seller's Broker in accordance with the
separate agreement between Seller and Seller's Broker. Buyer shall pay any
brokerage commission due to Buyer's Broker in accordance with the separate
agreement between Buyer and Buyer's Broker. Seller agrees to hold Buyer
harmless and indemnify Buyer from and against any and all Liabilities (including
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reasonable attorneys' fees, expenses and disbursements) suffered or incurred by
Buyer as a result of any claims by Seller's Broker or any other party claiming to
. have represented Seller as broker in connection with the Transaction. Buyer
agrees to hold Seller harmless and indemnify Seller from and against any and all
Liabilities (including reasonable attorneys' fees. expenses and disbursements)
suffered or incurred by Seller as a result of any claims by Buyer's Broker or any
other party claiming to have represented Buyer as broker in connection with the
Transaction.
10.3.3 Tall Protests, Tax Refunds and Creditll. Seller shall have the
right to continue and to control the progress of and to make all decisions with
respect to any contest of the real estate taxes and personal property taxes for the
Property due and payable during the Closing Tax Year and all prior Tax Years.
Buyer shall have the right to control the progress of and to makC all decisions.
with respect to any tax contest of the real estate taxes and personal property taxes
for the Property due and payable during all Tax Years subsequent to the Closing
Tax Year. All real estate and personal property tax refunds and credits received
after Closing with respect to the Property shall be applied in the following order
of priority: first, to pay the costs and expenses (including reasonable attorneys'
fees, expenses and disbursements) incurred in connection with obtaining such tax
refund or credit; second, to pay any amounts due to any past or present tenant of
the Property as a result of such tax refund or credit to the extent required pursuant
to the terms of the Leases; and third, apportioned between Buyer and Seller as
follows:
(a) with respect to any refunds or credits attributable to real
estate and personal property taxes due and payable during the Closing Tax
Year (regardless of the year for which such taxes are assessed), such
refunds and credits shall be apportioned between Buyer and Seller in the
manner provided in Section 6.3:
(b) with respect to any refunds or credits attributable to real
estate and personal property taxes due and payable during any period prior
to the Closing Tax Year (regardless of the year for which such taxes are
assessed), Seller shall be entitled to the entire refunds and credits; and
(c) with respect to any refunds or credits attributable to real
estate and personal property taxes due and payable during any period after
the Closing Tax Year (regardless of the year for which such taxes are
assessed), Buyer shall be entitled to the entire refunds and credits.
10.3.4 Survival. The provisions of this Section 10.3 shall survive the
Closing (and not be merged therein) of this Agreement. .
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ARTICLE 11- FAn.URE OF CONDmONS
11.1 To Seller's Oblll!ations. If, on or before the Closing Date, (i) Buyer is in
default of any of its material obligations hereunder, or ('n) any of Buyer's material
representations or warranties are untrue in any material respect, or (iii) the Closing
otherwise fails to occur by reason of Buyer's failure or refusal to perfonn its obligations
hereunder in accordance with the terms hereof, and such circumstance in (i). (ii) or ('ill)
continues for five (5) days after written notice from Seller to Buyer, which written notice
shall detail such default, untruth or failure, as applicable. then Seller shall hIl.ve the right
to elect, as its sole and exclusive remedy, to (a) terminate this Agreement by written
notice to Buyer; or (b) waive the condition and proceed to close the Transaction (without
any right to specific performance). If this Agreement is so terminated, then Seller sli.a11 be
entitled to the Deposit, together with interest thereon, lis liquidated. damages. and Seller
thereby agrees to waive any and all rights and remedies that Seller may have at law or
otherwise and thereafter neither party to this Agreement shall have any further rights or.
obligations hereunder other than any arising under any section herein which expressly
provides that it survives .the termination of this Agreement.
11.2 To Buver's Oblil!ations. If, at the Closing, (i) Seller is in default of any
of its material obligations hereunder, or (ii) any of Seller's material representations or .
warranties are untrue in any material respect, or (ill) the Closing otherwise fails to occur
by reason of Seller's failure or refusal to perform its obligations hereunder in accordance
with the terms hereof, and timely manner, and such circumstance in (i), (ii) or (iii)
continues for five (5) days after written notice from Buyer to Seller, which written notice
shall detail such default, untruth or failure, as applicable, Buyer shall have the right to
elect, as its sole and exclusive remedy, to (a) terminate this Agreement by written notice
to Seller, promptly after which any Deposit and any Approval Extension Payment shall .
be returned to Buyer, or (b) waive the condition and proceed to close the Transaction, or
(c) seek specific performance of this Agreement. Buyer thereby agrees to waive any and
all other rights and remedies that Buyer may have at law or otherwise. If the Seller
default pursuant to subsection (i), (ii) and/or (ill) above is caused by the willful,
intentional and conscious act or omission of Seller and only in such case, then regardless
of whether Buyer has elected to enforce specific performance under subsection (c) above
or to terminate this Agreement under subsection (a) above, Buyer shall also have the right
to recover the documented, actual out-of-pocket expenses incurred by Buyer in
connection with this Agreement and Buyer's due diligence investigation of the Property
up to One Million Dollars ($1,000,000.00) in the aggregate. AB a condition precedent to
Buyer exercising any right it may have to bring an action for specific performance
hereunder, Buyer must commence such an action within ninety (90) days after the
occurrence of Seller's default. Buyer agrees that its failure to timely commence such an
action for specific performance within such ninety (90) day period shall be deemed a
waiver by it of its right to commence an action for specific performance as well as a
waiver by it of any right it may have to file or record a notice of lis pendens or notice of
pendency of action or similar notice against any portion of the Property. .
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ARTICLE 12 - CONDEMNATION/CASUALTY
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12.1 Ril!ht to Terminate. If, after the date hereof, (a) any portion of the
Property is taken by condemnation or eminent domain (or is the subject of a pending
taking which has not yet been consummated), or (b) any portion of the Property is
damaged or destroyed (excluding routine wear and tear), Seller shall notify Buyer in
writing of such fact promptly after obtaining knowledge thereof. If the Property is the
subjeCt of a Major Condemnation that occurs after the date hereof, Buyer shall have the
right to terminate this Agreement by giving written notice to Seller no later than ten (10)
Business Days after the giving of Seller's notice, and the Closing Date shall be extended,
if necessary,. to provide sufficient time for Buyer to make such election. The failure by
Buyer to so elect in writing to terminate this Agreement within such ten (10) Business
Day period shall be deemed an election not to terminate this Agreement. If this
Agreement is terminated pursuant to this Section 12.1. the Deposit, with all interest
earned thereon,shall be returned to Buyer and, thereafter, this Agreement shall terminate
and neither party to this Agreement shall have any further rights or obligations hereunder
other than any arising under any section herein which expressly provides that it shall
survive the termination of this Agreement.
12.2 Allocation of Proceeds and Awards. Ifa condemnation occurs after the.
date hereof and this Agreement is not terminated as permitted pursuant to the terms of
Section 12.1. then this Agreement shall remain in full force and effect, and at the Closing:
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(a) if the awards or proceeds, as the case may be, have been paid to the
Partnership prior to Closing, Buyer shall receive a credjt at Closing equal to
(i) the amount of any such award on account of such condemnation, less (Ii) an
amount equal to the Seller-Allocated Amounts; and
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(b) to the extent that sucb award or proceeds have not been paid to the
Partnership prior to Closing, Seller shall assign to Buyer at the Closing (without
recourse to Seller) the rights of the Partnership to, and Buyer shall be entitled to
receive and retain, such awards or proceeds; Drovided. however. that within one
(I) Business Day after receipt of such awards or proceeds, Buyer shall pay to
Seller an amount equal to the Seller-Allocated Amounts not previously paid to
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12.3 Insurance. Seller shall cause the Partnership to maintain the property
insurance coverage currently in effect for the Property, or comparable coverage, through
the Closing Date.
12.4 Waiver. The. provisions of this Article 12 shall survive Closing and
supersede the provisions ofany applicable Laws with respect to the subject matter of this
Article 12.
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ARTICLE 13.ESCROVV
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The Initial Deposit, the Extension Deposit and Secondary Dep<>sit and any other sums
(including, without limitation, any interest earned thereon) which the parties agree shall
be held in escrow (herein collectively called the "Escrow Deoosits"), shall be held by the
Escrow Agent, in trust, and disposed of in accordance with the following provisions and
as elsewhere provided in this Agreement:
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13.1 Denosit. The Escrow Agent shall invest the Escrow Deposits in
government insured interest-bearing instruments reasonably satisfactory to both Buyer
and SeIler, shall not commingle the Escrow Deposits with any funds of the Escrow Agent
or others, and shall promptly provide Buyer and Seller with confirmation of the
investments made. Any interest earned on the Escrow Deposits shall be for the benefit of
the party to whom the Deposit is paid.
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13.2 Deliverv. The Escrow Agent is.hereby authorized to automatically deliver.
the Extension Deposit, and all interest thereon, to Seller in accordance with Sections
4.2.Hc), 8.3. ill or as otherwise specifically set forth herein; and simultaneously
therewith, Escrow Agent shall deliver written notice to Buyer and Seller thereof. The
Deposit shall be non-refundable to Buyer except in the event Buyer terminates. this .
Agreement in accordance with the terms hereof and pursuant to Sections 4.2. Hc),
4A.Hb)' 8.3. 8.5. ill and 12.1 or as otherwise specifically provided for herein, in which
event all or a portion of the Deposit and all interest thereon, may be refundable.
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13.3 Failure of C1osinl!. If for any reason the Closing does not occur and
either party makes a written demand upon the Escrow Agent for payment of the Escrow
Deposits which it is holding, the Escrow Agent shall give written notice to. the other party
of such demand. If the Escrow Agent does not receive a written objection from the other
party to the proposed payment within three (3) Business Days after the giving of such
notice, the Escrow Agent is hereby authorized to make such payment. If the Escrow
Agent does receive such written objection within such period, the Escrow AgCnt shall
continue to hold such amount until otherwise directed by written instructions signed by
Seller and Buyer or a final judgment of a court. Notwithstanding the foregoing, if Buyer
terminates this Agreement prior to the expiration of the Due Diligence Period in
accordance with the terms of this Agreement, the Escrow Agent is hereby authorized to
deliver the Initial Deposit, and any interest thereon, to Buyer and simultaneously
therewith Escrow Agent shall deliver a written notice to Seller that such payment has
been made to Seller.
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13.4 Stakeholder. The parties acknowledge that the Escrow Agent is acting
solely as a stakeholder at their request and for their convenience, that the Escrow Agent
shall not be deemed to be the agent of either of the parties, and that the Escrow Agent
shall not be liable to either of the parties for any action or omission on its part taken or
made in good faith, and not in disregard of this Agreement, but shall be liable for its
negligent acts and for any Liabilities (including reasonable attorneys' fees, expenses and
disbursements) incurred by Seller or Buyer resulting from the Escrow Agent's ntistake of.
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law respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer shall
jointly and severally indemnify and hold the Escrow Agent harmless from and against all
Liabilities (including reasonable attorneys' fees, expenses and disbursements) incurred in
connection with the performance of the Escrow Agent's duties hereunder, except with
respect to actions or omissions taken or made by the Escrow Agent in bad faith. in
disregard of this Agreement or involving negligence on the part of the Escrow Agent.
13.5 ~. The party who receives the interest earned on the Deposit shall
pay any income taxes thereon. Buyer represents and warrants to the Escrow Agent that
its taxpayer identification number is 22-3718752.
13.6 Execution Bv Escrow Al!ent. The Escrow Agent has executed this
Agreement in the place indicated on the signature page hereof in order to confum thlIt the
Escrow Agent has received and shall hold the Escrow Deposits, in escrow, and' shall
disburse the Escrow Deposits pursuant to the provisions of this Article 13.
ARTICLE 14 - LEASE EXPENSES
14.1 INTENTIONALLY DELETED.
14.2 Apartment Lessin!!:. Between the date hereof and the Closing DlIte, Seller
shall not permit the Partnership to change its current leasing or management practices
without the prior written approval of Buyer, which approval shall not be unreasonably
withheld or delayed. Seller shall provide Buyer with information outlining any such
. proposed changes to such leasing or management practices, and Buyer shall have three
(3) Business Days to provide written approval or disapproval of such proposed changes; ,
provided, however, that failure of Buyer to respond within such three (3) Business Day
period shall be deemed to constitute approval of such proposed changes. Buyer
acknowledges and agrees that Seller's leasing and management practices may change
prior to Closing due to changes in the leasing market and the intended vacancy for the
Property and these changes do not require Buyer's consent. From and after the Effective
Date, Seller shall not permit the Partnership to, without Buyer's prior written consent in
each instance, which consent shall not be unreasonably withheld and shall be given or
denied within three (3) Business Days after receipt by Buyer of the materialterrns of such
proposed lease, enter into a new lease for space in the Property or renew or extend any
lease (except pursuant to the exercise by a tenant of a renewal, extension or expansion
option contained in such tenant's lease), unless such lease shall have a term that does not
extend beyond March 31, 2006. All new leases entered into by SeIler with a term beyond
March 31, 2006 shall be on a month-to-month basis only. Between the date hereof and,
the Closing Date, Seller will cause the Partnership to cause vacant apartment units at the
Property to. be "made ready" for reletting and occupancy in accordance with Seller's
current standards and timetable for turning units over. It is not the intention of Seller to
have all of the vacant units "made ready" as of the Closing Date, but only those units that
would have been "made ready" in the ordinary course of business and consistent with the
intended vacancy of the Property.
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14.3 Lease Enforcement. The Partnership shall have the right, but not the
obligation (except to the extent that the Partnership's failure to act shall constitute a
waiver of such rights or remedies), to enforce the rights and remedies of the landlord
under any Lease, by summary proceedings or otherwise (mcluding, without limitation,
. the right to remove any tenant), and to apply all or any portion of any security deposits
then held by the Partnership toward any loss or damage incurred by the Partnership by
reason of any defaults by tenants, and the exercise of any such rights or remedies shall
not affect the obligations of Buyer under this Agreement in any manner or entitle Buyer
to a reduction in, or credit or allowance against, the Purchase Price or give rise to any
other claim on the part of Buyer.
ARTICLE 15 - MISCELLANEOUS
15.1 Buyer's AssIl!1lment. Buyer shall have the right to cause Seller to convey
the Partnership Interests to affiliates of Buyer or to affiliates of the owners of. Buyer,
which are directly or indirectly owned in whole or in part by Buyer or by the owners of
Buyer, and which assignees shall be designated in writing by Buyer by the delivery to
Seller of a written assignment of this Agreement pursuant to which Buyer's obligations
hereunder are expressly assumed by such assignee and by delivery to Seller of evidence
reasonably satisfactory to Seller of the valid legal existencc of Buyer's assignee, its
qualification (if necessary) to do business in the jurisdiction in which the Property is
located and of the authority of Buyer's assignec to execute and deliver any and all
documents required of Buyer under the terms of this Agreement, which items shall be
received by Seller not less than three (3) Business Days prior to the Closing Date; .
notwithstanding the foregoing, the exercise of such right by Buyer shall not relieve Buyer
of any <If its obligations and liabilities hereunder including obligations and liabilities
which survive the Closing or the termination of this Agreement, nor shall any such
asSignment alter, impair or relieve such assignee from the waivers, acknowledgements
and agreements of Buyer set forth herein, including, but not limited to, those set forth in
Article 5. Article 9 and Article 10 hereof, all of which are binding upon the -assignee of
Buyer. Except as expressly provided to the contrary. by the immediately preceding
sentence, Buyer shall not assign this Agreement or its rights hereunder to any individual
or entity without the prior written consent of Seller, which consent Seller may grant or
withhold in its sole and absolute discretion, and any such assignment shall be null and
void ab initio. In the event of any permitted assignment by Buyer, any assignec shall
assume any and all obligations and liabilities of Buyer under this Agreement but,
notwithstanding such assumption, Buyer shall continue to be liable hereunder.
15.2 Desle:nation Ae:reement. Section 6045(e) of the United States Internal
Revenue Code and the regulations promulgated thereunder (herein collectively called the
"Renortinl! Requirements") require an information return lobe made to the United States
Internal Revenue Service, and a statement to be furnished to Seller, in connection with.
the Transaction. Escrow Agent is either (i) the person responsible for closing the
Transaction (as described in the Reporting Requirements) or (ii) the disbursing title or
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. escrow company that is most significant in terms of gross proceeds disbursed in
connection with the Transaction (as described in the Reporting Requirements).
Accordingly:
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(a) Escrow Agent is hereby designated as the "Renortinl! Person" (as
defined in the Reporting Requirements) for the Transaction. Escrow Agent shall
perform all duties that arc required by the Reporting Requirements to be
performed by the Reporting Person for the Transaction.
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(b) Seller and Buyer shall furnish to Escrow Agent, in a timely
manner, any information requested by Escrow Agent and necessary .for Escrow
Agent to perform its duties as Reporting Person for the Transaction.
(c) Escrow Agent hereby requests Seller to furnish to Escrow Agent
Sellers correct taxpayer identification number. Seller acknowledges thlIt any
failure by Seller to provide Escrow Agent with Seller's correct taxpayer
identification number may subject Seller to civil or criminal peruilties imposed by
law. Accordingly, Seller hereby certifies to Escrow Agent, , that Sellers correct
taxpayer identification number is TARR GP: 20-1443356; TARR LP: 20-
1443244; SHEFAOR:
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(d) Each of the parties hereto shall retain this Agreement for a" period
of four (4) years following the calendar year during which Closing occurs.
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1S.3 Survivo1lMerl!er. Except for the provisions of this Agreement which are
explicitly stated to survive the Closing, (a) none of the terms of this Agreement shall
survive the Closing, and (b) the delivery of the Assignment and other closing documents
and instruments by Seller and the acceptance thereof by Buyer shall effect a merger, and
be deemed the full performance and discharge of every obligation on the part of Buyer
and Seller to be performed hereunder.
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15.4 Intel!Tation: Waiver. This Agreement, together with the Exhibits hereto,
. embodies and constitutes the entire understanding between the parties with respect to the
Transaction and all prior agreements, understandings, representations and statements, oral
or written, are merged into this Agreement. Neither this Agreement nor any provision
hereof may be waived, modified, amended, discharged or terminated except by an
. instrument signed by the party against whom the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to the extent
set forth in such instrument No waiver by either party hereto of any failure or refusal by
the other party to comply with its obligations hereunder shall be deemed a waiver of any
other or subsequent failure or refusal to so comply. .
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15.5 Governinl! Law. This Agreement shall be governed by, and construed in
accordance with, the, law of the State in which the Real Property is located.
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15.6 Captions Not Bindinl!: Exbibits. The captions in this Agreement are
inserted for reference only and in no way define, describe or limit the scope or intent of
this Agreement or of any of the provisions hereof. All Exhibits attached hereto shall be
incorporated by reference as if set out herein in full.
15.7 Bindinl! Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and permitted assigns..
IS.S Severabilitv. If any term or provision of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement or the application of such tenn or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
15.9 Notices. Any notice, request, demand, consent, approval and other
communications under this Agreement shall be in writing, and shall be deemed duly
given or made at the time and on the date wheD received by facsimile (provided thlIt the
sender of such communication shall orally confirm receipt thereof by the approprillte
parties and send a copy of such communication to the appropriate parties within.,one.(l)
Business Day of such facsimile) or when personally delivered as sbown on a receipt
therefor (which shall include delivery by a nationally recognized overnight delivery
service such as Federal Express, UPS Next Day Air, Purolator Courier or Airborne
Express), to the address for each party set forth below. Any party, by written notice to
the other in the manner herein provided, may designate an address different from thlIt set
forth below.
If to Buver:
Pinnacle Communities, LL.C.
225 Milburn Avenue
Milburn, NJ 07041
Attn: Brian M. Stolar, Esq.
with a copy to:
Pinnacle Communities, L.L.C.
225 Milburn Avenue
Milburn, NJ 07041
Attn: Steve Mairella, Esq.
and to:
Pryor Cashman Sherman & Flynn LLP
410 Park Avenue
New York, NY 10022
Attn: Wayne B. Heicklen, Esq.
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UTo Seller:
Tarragon South Development Corp,
200 East Las OIas Boulevard, Suite 1660
Ft. Lauderdale, FL 33301
Telephone No.: 954-245-3290
Te1ecopyNo.: 9S4-712-125S
Attn: James M. Cauley, Jr.
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with a CODY to:
Tarragon Corporation
177S Broadway, 23M Floor
New York, NY 10019
Telephone No.: 646-3S4-2114
TelecopyNo.: 646-607-9400
Attn: Nancy Miller, Esq.
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1S,10 Counternarts. This Agreement may be executed in counterparts, each of
which shall be an original and all of which counterparts taken together shall constitute
one and the same agreement.
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IS.11 No Recordation. Seller and Buyer each agrees that neither this
Agreement nor any memorandum or notice hereof shall be recorded and Buyer agrees (a)
not to file any notice of pendency or other instrument (other than a judgment) against the
Property or any portion thereof in connection .hercwith and (b) to indemnify Seller
against all Liabilities (including reasonable attorneys' fees, expenses and disbursements)
incurred by Seller by reason of the filing by Buyer of such notice of pendency or other
instrument. Notwithstanding the foregoing, if the same is permitted pursuant to
applicable Laws, Buyer shall be entitled to record a notice of lis pendens if Buyer is
entitled to seek (and is actually seeking) specific performance of this Agreement by
Seller in accordance with the terms of Section 11.2 hereof.
f)
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15.U Additional Al!reements: Furtber Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto shall execute and deliver such
documents as the other party shall reasonably request in order to consummate and make
effective the Transaction; provided, however, that the execution and delivery of such
documents by such party shall not result in any additional liability or cost to such party.
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15.13 Construction. The parties acknowledge that each party and its counsel
have reviewed and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be.
employed in the interpretation of this Agreement or any amendment hereof or Exhibit
hereto.
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15.15 Maximum Al!l!rel!ate Liability. Notwithstanding any provision to the
contrary contained in this Agreement or any documents executed by Seller pursuant
hereto or in connection herewith, the maximum aggregate liability of Seller, Tarragon
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and the Seller Parties, and the maximum aggregate amount which may be awarded to and
collected by Buyer, in connection with the Transaction and the Property, under this
Agreement and under any and all documents executed pursuant hereto or in connection
herewith (including, without limitation, in connection with the breach of any of Seller's
Warranties for which a claim is timely made by Buyer) shall not exceed One Million and
No/IOO Dollars ($1,000,000.00). The provisions of this section shall survive the Closing
(and not be merged therein). Notwithstanding anything to the contrary contained herein,
the maximum aggregate liability of SelIer, Tarragon and the Seller Parties shall not be
limited with respect to a breach of the Partnership Warranties or with respect to such
parties obligations under Section 6.3.2 and/or Section 15.23. Notwithstanding anything
herein to the contrary, Tarragon's obligations hereunder shall relate solely to the
indemnity and obligations set forth in Sections 6.3.2. 10.2.3 and 15.23.
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15.16 Time of The Essence. Time is of the essence with respect to this
Agreement
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15.17 Waiver of Jurv Trial. EACH PARTY HEREBY WAIVES 1RlAL BY
JURY IN ANY PROCEEDINGS BROUGHT BY THE OTHER PARTY IN
CONNECTION W1TII ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE TRANSACTION, TInS AGREE:MENT,. THE
PARTNERSHIP INTERESTS, THE PROPERTY OR THE RELATIONSHIP OF
BUYER AND SELLER HEREUNDER. THE PROVISIONS OF TInS SECTION
SHALL SURVIVE THE CLOSING (AND NOT BE MERGED THEREIN) OR ANY
EARLIER TERMINATION OF TInS AGREEMENT.
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15.18 Facsimile Sil!llatures. Signatures to this Agreement transmitted by
telecopy shall be valid and effective to bind the party so signing. Each party agrees to
promptly deliver an execution original to this Agreement with its actual signature to the
other party, but a failure to do so shall not affect the enforceability of this Agreement, it
being expressly agreed that each party to this Agreement shall be bound by its own
telecopied signature and shall accept the telecopied signature of the other party to this
Agreement
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15.19 Jurisdiction. W1TII RESPECf TO ANY SUIT, ACTION OR
PROCEEDINGS RELATING TO THE TRANSACTION, TInS AGREEMENT, THE
PARTNERSHIP INTERESTS, THE PROPERTY OR THE RELATIONSHIP OF
BUYER AND SELLER HEREUNDER ("PROCEEDINGS") EACH PARTY
IRREVOCABLY (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE COUNTY OF MIAMI-DADE, STATE OF FLORII?A AND THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF FLORIDA, AND
(B) WAIVES ANY OBJECTION wmCH IT MAY HAVE AT ANY TIME TO THE
LA YlNGOF VENUE OF ANY PROCEEDINGS BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT SUCH PROCEEDINGS HAVE BEEN BROUGHT IN
AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO OBJECf,
W1TII RESPECT TO SUCH PROCEEDINGS, THAT SUCH COURT DOES NOT
HAVE JURISDICTION OVER SUCH PARTY. . THE PROVISIONS OF TInS
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SECTION SHALL SURVIVE THE CLOSING (AND NOT BE MERGED THEREIN)
OR ANY EARLIER TERMINATION OF TIllS AGREEMENT.
()
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15.20 Radon Gas. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks to persons
who are exposed to it over a period of time. Levels of radon that have exceeded federal
and state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained through your county health unit.
15.21 Buver's Use of Units. Upon expiration of the Due Diligenl:C Period, .
Buyer shall have the right to occupy one unit of each type, to be selected by Buyer and
subject to availability, pursuant to a standard month-to-month lease at a rental rate of
$100 per month. Buyer may improve such units at its sole expense and discretion;
provided, however, such improvements may not require any structural changes or
changes that increase the demand on any utility systems serving the. Property. At
Closing, Buyer slia11 receive a credit equal to any rent paid to Seller pursuant to this
Paragraph IS.21.
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15.22 Post-Closinl! Access. For a period of five years subsequent to the "Tu
Termination" (i.e., the termination of the Partnership under Section 708(b)(1)(B) of the
Internal Revenue Code resulting from the sale of the Partnership Interest contemplated by
this Agreement), Buyer shall provide access to Seller and its respective employees,
agents and representatives during normal business hours to all documents, books and
records of the Partnership relating to the period prior to the Tax Termination upon
reasopable prior notice to Buyer, and shall have the right to make copies of such
documents, books and records at such Seller's expense.
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15.23 Tax M atten. The filing of the Partnership return for federal and state
income tax for the partial year 2005 ending on the Closing Date shall be Seller's
responsibility. Further, should such returns be audited, Seller shall be responsible for
dealing with, settling and paying any such tax liability owing in connection therewith,
and in such regard Seller and Tarragon Corporation shall indemnify and hold Buyer and
the Partnershijl harmless from and against any and all loss, cost or expense (including
reasonable attorneys' fees and other professional fees) as a result of any liability arising
as a result of any tax audits or with respect to federal or state tax liability for the period of
time prior to the Closing Date. Should Buyer or the Partnership be included in such
audits, Seller shall furnish Buyer or the Partnership with all necessary information to
permit Buyer or the Partnership to respond to the appr.opriate authorities in a timely and
responsive manner. The responsibility of filing the Partnership return for federal and
state income for the partial year commencing on the Closing Date shall be Buyer's
responsibility. Further, should such partial year return be audited, the responsibility for
dealing with, settling and paying any such tax liability shall be Buyer's, and in such
regard Buyer and the Partnership shall hold Seller hannless from and against any and all
loss, cost or expense (including reasonable attorneys fees and other professional fees) as a
result of any liability arising as a result of such audits or with respect to federal or state
income t3x liability for the period of time from and after the Closing Date. Should Seller
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be included in such audits, Buyer shall furnish Seller with all necessary information to
permit Seller to respond to the appropriate authorities in a timely and responsive manner.
Notwithstanding anything to the contrary contained herein, if it is not permissible under
the under the Internal Revenue Code to filc separate incomc tax rcturns for the
Partnership for the period prior to the Closing and the period on and after the Closing. the
parties shall cooperate with each other so as to cause the Partnership's tax returns for
calendar year 2005 to be filed in a timely manner and shall make such elections and/or
allocations as may be required so as to allocate to Seller for income tax purposes all
income, expense and tax credits relating to the period of time prior to the Closing and to
allocate to Buyer all income; expenses and, if permissible, tax credits for the period on
and after the Closing. Upon Buyer's request, Seller agrees to cause the Partnership to
make an election under Section 754 of the Interi1a1 Revenue Code reflecting the Purchase
Price by Buyer. Notwithstanding anything to the contrary set forth herein, Seller's and
Tarragon's obligations under this Section 15.23 shall survive the Closing until six (6)
months after the expiration of the applicable tax statute of limitations.
[REMAINDER OF PAGE INTENTIONALLY LEFf BLANK]
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AVENTl1RA TARRAGON Gr, LLC
By. TllrIgan Scuth opDlaIl Cmp.
II,;
~ <-c.c~,:rll.,
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A VJ.N'I'UU. 'fAlUlAGCm LP, LLC .
By.~:.'-I'~'
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IlBEFAOR BB,' , c., a l'1orIda limheIl
Ilabllltr _I
By; Pl.....k. {est, lIlc., . Plon&a CG. ~lltlw,
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By;
Name'
1itlc:
frQv
Ivo-If"',.,}
By; Esta= Ple.!d
eo.rporllllcc.
ByJ
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to Fk1rida
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PAGE 1/2' RC'ID AT 5/212005 6:51:03 PM ~astem Da~lght TIme]' SVR:NY21a' DNlS:69o\ l' CSID:30Sl666606' DURA nON (mmis):OOo5f
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YnA'i ,) UJoS-
AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Amendment to Purchase and Sale Agreement (this "Amendment'') is
entered into as of May 6, 2005 by and between A VENTURA TARRAGON GP, LLC, a
Florida limited liability company (''1' ARR GP''), A VENTURA TARRAGON LP, LLC,
a: Florida limited liability company ("TARR LP''), and, SHEFAOR DH, LLC, a Florida
limited liability company ("Shefaor'') (TARR GP, TARR LP and Shefaor arc collectively
referred to herein as "Seller''), and PINNACLE COMMUNITIES, L.L.C., a New
Jersey limited liability company ("Buver''). All capitalized terms not otherwise defined
herein shall have the meaning ascribed thereto in the Purchase Agreement (as hereafter
defined).
WHEREAS, the Seller and Buyer have entered into that certain Purchase and
Sale Agreement dated as of April 21,2005 (the "Purchase Agreement"); and
WHEREAS, the parties wish to amend the Purchase Agreement.
NOW THEREFORE, in consideration of the covenlints and conditions contained
herein and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the parties hereto, it is agreed as follows:
1. Initial Deposit. Buyer has or will fund the Initial Deposit to the Escrow
Agent as of the date hereof.
2. DepositlExtension Deposit! Secondary Deposit/Closinli Date. Notwith~ding
anything to the contrary set forth in the Agreement, all references to the Extension
Deposit and First Extension Date shall have no further force and effect, shall be deemed
deleted and Buyer shall not have the extension rights granted therewith and the
"Secondary Deposit" shall mean the sum of1bree Million Five Hundred Thousand and
No!IOO Dollars ($3,500,000.00), to the extent the same is deposited by Buyer in
accordance with the terms of the Agreement, as amended hereby, together with any
interest earned thereon. The term "Deposit" shall be amended to read as follows: "the
sum of Four Million Five Hundred Thousand Dollars ($4,500,000.00), consisting o~
collectively, the Initial Deposit of One Million Dollars ($1,000,000) and the Secondary
Deposit of Three Million Five Hundred Thousand and No/lOO Dollars ($3,500,000.00).
The term "Closing Date" shall be amended so that the first sentence of its definition is
deleted and replaced with the following; "Closing Date shall mean the date.that is one
hundred and fifty days after the Moratorium Termination"; and the following shall be
added to the definition of Closing Date: ''Notwithstanding anything herein or the
Agreement to the contrary, in no event shall the Closing Date extend beyond July 19,
2007.
3.
Moratorium.
(A) Seller and Buyer acknowledge that a moratorium (the "Moratorium") has
been, and shall be. deemed have been, enacted as of May 2, 2005 for purposes of the
Agreement. '
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(B) Notwithstanding anything to the contrary set forth ii:1 the Agreement,
including, without limitation, Section 3.1.1, the Secondary Deposit shall not be due from
Buyer until ten (10) days after Buyer's receipt of an accurate written notice from seller
(the "Moratorium Termination Notice") that the Moratorium Termination (as defined
herein) has occurred, provided,. however, that in the event that any Moratorium Changes.
(as defined herein) have occurred that result in the FAR of the Property being reduced
below 2.0 or the number of pennitted residential units being reduced below 526, then,
within ten (10) days of Buyer's receipt of the Moratorium Termination Notice, Buyer
shall have the right to (i) terminate the Agreement and receive the prompt reimbursement
of the Deposit, together with all interest earned thereon, and thereupon the parties shall
have no further rights or obligations under the Agreement, except for obligationS which
expressly survive the termination of the Agreement, or (ll) deposit the Secondary Deposit
with the Escrow Agent, whereupon the Agreement will continue in full force and effect
in accordance with its terms, except that Site Plan Approval condition set forth in Section.
8.5(a) shall be modified to delete the FAR 2.0 and 526 unit requirements and instead
reflect the FAR and/or number of units set forth in the Moratorium Termination Notice.
Seller covenants to provide the Moratorium Terinination Notice to Buyer promptly after
the occurrence of a Moratorium Tennination together with a detailed explanation of any
Moratorium Changes.
(C) "Moratorium Termination" shall mean that Site Plan Approval review
process by the City and/or any other applicable governmental entities can be resumed.
and:
(a) (1) The Property is finally and effectively exempted from the Moratorium by a
valid written agreement between Seller and the City and/or the other necessary or
appropriate governmental entities or by final and effective order of a court of competent
and final jurisdiction (in each case after the expiration of all appeal periods or resolution
of all appeals to Buyer's reasonable satisfaction) or (2) the Moratorium has finally and
effectively expired by its terms, and
(b) Any and all new or amended zoning, land use and/or similar or related laws
and regulations in any manner related to or arising from the Moratorium Period and the
legislation and/or regulation contemplated with respect thereto ("Moratorium Changesj
have been enacted are then effective and the Site Plan review application can be
submitted or re-submitted for immediate review or such laws and regulations are finally
determined to have no application to the Property.
(0) Section 8.5 (g) (i) is hereby deleted.
(E) Section 8.5 (g) (Hi) is hereby deleted.
(F) Section 8.5(g)(iv) is hereby deleted.
(0) Section 8.5(c) is hereby amended so that the Approval Extension Deadline
is 395 days after the Closing Date and to delete in the third sentence thereof "September
19, 2005 as such First Extension Date may be extended as contemplated in the defmition
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of "Closing Date'~ and to insert in lieu thereof "the then current scheduled Closing
Date." .
4. A DDrovals, Notwithstanding anything to the contrary set forth in the
Agreement, from and after the Moratorium Termination and Buyer's deposit of the
Secondary Deposit, Buyer and not Seller, at Buyer's sole cost and expense, shall have the
right to pursue and directly control the Site Plan Approval process in accordance with
applicable laws and regulations and Seller shall cooperate with Buyer in connection
therewith and Buyer shall do so expeditiously and timely: BUYer (with ~eller's
cooperation) shall diligently respond to Governmental Authorities when said authorities
request modifications, clarifications or additional materials with respect to the issuance of
the Site Plan Approval. Buyer shall keep Seller apprised on a regular basis of its efforts
to obtain the Site Plan Approval. Buyer shall send Seller copies of submissions to be
made to Governmental Authorities in connection with obtaining the Site Plan Approval.
Buyer covenants and agrees that the site plan for the Property for submission to the City
shall reflect the maximum utilization of the development rights granted by the City.
S. Good Faith Deposit. Escrow Agent is hereby directed to.pay directly to
Buyer the $250,000 good faith deposit deposited by Buyer pursuant to that certain.1etter
agreement dated May 2, 2005.
. 6. Apartment Leasinl!:. The March 31, 2006 date referenced in Sections
8.5(1) and 14.2 of the Agreement and the March 1,2006 date referenced in Section 8.5(1)
. .!>f the Agreement shall be extended by the period of time from the date hereof to the
occurrence of the Moratorium Termination.
7. Access. Notwithstanding anything to the contrary set forth in the
Agreement, it shall be a condition precedent to Buyer's obligation to close under the
Agreement and pay the Purchase Price that the Property has vehicular and pedestrian
access for ingress and egress to an open public road.
8. Title Matters. In furtherance of the terms of this Amendment, the third
sentence, clause (i) of Section 4.2.1 (c) of the Agreement is hereby amended by deleting
references to the "Extension Deposit" and replacing such references with the term "Initial
Deposit. Section 4.2.l(b)(ii) of the Agreement is hereby amended by deleting the
reference to the "Secondary Deposit" and replacing such reference with the term "Initial
Deposit." . ..
9. Counterparts/Oril!:inals. .This Amendment may be executed by facsimile
signature and in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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SELLERr
A VE!'i1'URA l' ARlU.GON Gr, LLC
By: Tmagon SOUlh Dev.:1ClplI1eat C9r,p.
By:
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Title:
~
A'VENTURA TARRAGONLP, LLC
lly: Tamson South Dcvclopl11e:l1t qotp.
By:
Name:
Tltlt:
SBEFAOR BB, L.L.C., . Florida lJmltld
llabIllty compall)'
By: Planlnvest, Jnc:., a Florida CO'l""-AtiolI, .
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corpora1lon,
By:
Nmne:
Title:
, ~ a ;Florida
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BUYER:
.PlNNACLE COMMm'l1TIES, LL.c.
By:
.:Name:
Title:
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IN WI1'NESS WHEREOF, each party herao has ca:used this Au1endmint to b. mu; .
executed on its bcha]f on tb.c day and year first ab'DVC wrlttcD. . - :.... : . : . . '.
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A VENTURA TARRAG01i' J;;p,.LLC
By: Tamigon S ~ Cotp.
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IN WITNESS WHEREOF, each party hereto has Clused this Amendment to be duly
executed on its behalf on the day and year first above written.
SELLER:
Name:
Title:
AVENTURA TARRAGON LP, LLC
By: Tarragon South Devclopment COIp.
By:
Name:
Title:
SHEFAOR BH, L.L.C., a Florida limited.
liability: company
By: Planinvest, lnc., a Florida corporation,.
co-manager
By:
Name:
Title:
By: Estate Field G7oup, Inc., a Florida
corporation, co-manager
By:
Name:
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BUYER:.
PINNACLE COMMUNITIES, LL.C.
By:
Name: CL' \.1 (l I I
Title: P '{ \.Ik/I. vv\.. "::. ~it LV-
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EXHIBIT A
LEGAL DESCRIPTION
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Tract D of ADMIRAL'S PORT SECTION ONE, according to the plllt thereof, recorded in
Plat Book 113,Page 51, Public Records of Miami-Dade County, Florida.
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8 ) ~ 101
SHEFAOR TARRAGON, LLLl',
a Florida limited liability limited partnership
LIMITED LlABn..ITY LIMITED l'ARTNERSBIP AGREEMENT
, THIS uM:rnw LIA:Bn..ITY :LIMITED pARTNERSHIP AGREEMENT (this
. Agreement") is made aDd entered into as of the !1!:h day of August 2004, by aDd among
AVENTURA TARRAGON Gr, LLC, Ii Florida 1iJi:lited liability company, having an address
c/o Tarragon South Development .Corp., 200 Bast Las Olas Boulevard, Suite 1660, Fort
Lauderdale, Florida 33301 ("General Partner"); AVENTURA TARRAGON LP, LLC, a
FloPda Jimited liability company, having'an address c/o Tarragon South Development Corp.,
200 Bast Las Olas Boulevard, Suite 1660, Fort Lauderdale, Florida 33301 ("Tarragon LP"), .
aDd SHEFAOR BH, L.L.C., a Florida limited liability company, having an address 2999 NE
191~ Street, Suite 803, Aventura, Florida 33180 ("Shefaor LP").
:RECITALS
\ :
'\
I
I
I
I.,
,
A.. Partncxs have agreed to fOIDl a H,.,.,it...d liability limited partnersbi:p (the
"Partnership") to acquirc,own, develop, finance, sell, lease, 10int ve.Il1\l["e or otherwi,se
dispose of certain real property and the improvements located thereon located in A vemura,
Miami-Dade County, Flo;ida, as more particularly described in Schedule "A" attacb.ed hereta'
. and made a part hereof (the "Property").
B. PartnerS desire to f= the Partnership as a limited liability limited partn~ship
UDder the laws of the Slate of Florida for,the purposes set forth herein, aod, accordingly.
desire to enter into tlJis Agr~cm in order to set forth the termS and conditions of the
business. and a:ffai:rs of 1lle partne.nlbip and to det~,""n~ the rigb!s and obligations of Partners.
\. j
,. I
I
i
NOW, TEERBFORE, Partners, intcnding to be legally bound, hereby agree as
follaws:
"
ARTICLE I.
DEFINITIONS
1.1 M The Florida Revised UDifOIID Limited partnership Act (1986), or any
. similar sncccssor law.
1.2 Admiral's Port. Shall have the.' meaning ascribed to such t= in the
defurltion of Contract.
q Affiliate. Any person or. entity who, directly or indirectly, conlrols, ia
controlled by, or is under common control with, any Partner or any person or entity who ia an.
officer, dh'ector, sharebolder, member or partner of a partner or who is related to any Partner by
blood ormmiage. Thctenn "control"shal1 be defined as provided in Code Section 368(c).
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1.4 AI!l'Ccmcnt Shall have the nleamng asc:ribed to such teIm in the preamble of'this
Agrccmcnt, which definition shall ip.clude this AgreCl=lt in its present form or as amended
from time to time puwaDl to the terms hereof.
1.5 AmendroeotNo.2. Shall have themeaDiDg asc:n'bed to such term in the defurl.tion
of Contract.
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1.6 Anilrtments. Collectively, those two hundred eighty-five (285) reside:otial rental
apartment units located at the Property as of the date helreo.f.
1.7 Banlauolcv. With respect to any PersOD, shall refer to: (a) the appointmcm1 of a
receiver, conservator, rehabilitator or similar officer :fur such PersOD, unless the appointment of
such officer shall be vacated and such officer discharged within one hundred twenty (120) days
of the appointment; (b) the taking of possession of, or the assumption of control over, all or any
substBIltial part of the property of such Person, by any receiver, conservator, rehabilitator or
siJm1ar officer or by the UDited States Government or any agency thereof, unless such property is
relinquished witbiD one hundred twenty (120) days of the taking; (c) the filing of a petition in
baclauptcy or the commencement of any proceeding under any present or future federal or state
law relating to b8llkruptcy, iDsolvency, debt relief or reorganization of debtors by or againSt such
PersoD, provided, that if filed against such PersoD, such petition or proceeding is not dismissed
within rrlncty (90) days of the filing of the petition or the comm en ~.ement of the proceeding;. (d),
the m.1cing of Bll assi"omncnt for the benefit of creditors or a private composition, arrangement or,...
adjostm!:1lt wilh the c:reditors of such PersOD, or (e) lhe co=eIlcemcot of any proceeomgs-
supplementary to the execution of my judgment against such Person, unless such proceeding is
dismissed within ninety (90) days from the date it ",as =enced. .
1.8 Breachin~ Partoer. Shall have the IOe"ning ascribed to such t= iri Section 9.7
hereof.
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. 1.9 Budeet. The pro forma budget in copncction with lhe acquisition, development
andIorcomtructionoftheProject~cdhercto as Schedule ''B". as the same maybe amended..
from time to time by General P Brtncr.
1.10 Cauital Account With respect to mry Partner, the capital account :maintained for
such .partoer in accordance with the rules of Treasury Regulations Section 1.704-1(b)(2)(iv).
Whenever the psrtnership would be p=itted to adjust the Capital Account of. each of the
Partners pursuant to Treasury Regulations Section 1.704-1 (b)(2)(iv)(f) to reflect revaluatioDll of
Partnership propcrty,lbe partoersbip shall so adjust the Capital Account of each of the PaItners.
1: 11 CanItal Contl'lDutions. The amOUDt in cash or property contributed in the
aggregate by each Partner to the capital of the partoersbip for its interest in the Partnership,
including any amounts contn'buted subsequent to such Partner's initial acquisition ofits interest.
1.12 Code. The United States lntema1 Revenue Cod~ of 1986, as amended. A:rIy
reference to a provision of the Code shall be deemed to indicate the corresponding provision of
any fatore Unitad Statcs intemlll rev!:1lue law.
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1.13 Contract Colleatively, purchase aud Sale Agreement, dated as of February 27,
2004, between ASB Avcnmra Holding Company, L.L.C., a Florida limited liability company, as
general partner (''Seller General Partnel"), and The Collective Investment Trust Fot Employee
Benefit Plans _ the Reall!sta!e Fund, as limited partner ("Fund"), collectively, as seller, and
Jacques qIaudio Stivclman, au individual C'Stivelman"), as purchaser, as amended. by
Am~eDt No. 1 to Purchase and Sale Agreement, dated March 31, 2004, between Seller
General partner and 1'1md, collectively, as seller, and Sti'lelman, as purchaser, as further
amended by Amendment No.2 to purchase and Sale Agreement, dated as of May 18, 2004,
between Seller GeneIlll partner and Fund, collectively, as seller, and Tanagon Sou1h
Developmect . Corp., a. Nevada coxpotation ("Tmagon South"), as purchaser (the "AmcndmClllt
No.2"), pursuant to which Amendment No.2, among other things, Stivelman's interest as
porrihDSer under the Contract was assigned to Tarragon South, as :further amended. by
Amendment No.3 to hrcllase and Sale Agreement, dated as of July 29, 2004, by md ""'nng
Seller General partner, Fund, BBREB Holding Company, LLC, a Delaware limited liability
cmnpany, Admiral's l'ort Associates Linritedl'arlnersbip, a Florida limited partn=bip
("Admiral's Port"), conectively, as seller, and Tarragon Soutb, as purchaser, . and as further
smended by Amend1nent No.4 to purchase and Sale Agrement, dated as of August 16, 2004,
between Admiral's l'ort, as seller, and Tmagon South, as purchaser.
1.14 pontrac! Assi=ent A=ement Shall have the meaning ascn"bed to such tenn
in Section 3.1 (a) of this Agreement.
1.15 Dissolvine Event shall have the meaning ascribed to such term in Section 1I.2t
hereof.
1.16 Fiscal Yesr. The periOD beginning on the date oftbis Agreement md ending on
ne=ber 31 of the ssme year, and cacb. calendar twelve (12) month perlod (or such portion.
thereof during which the Partnership is in cxist=e) thereafter.
1.17 Fund. Shall have the meaning ascn'bedto such term in the definition of contract.
1.18 Gain From Sale. Net gain which is recognized for federal income tax pmposcS
resulting from either a Total l'resale or a Total Sale. Any items that are specia1l:y allocated
pursolilltto Article VI hereof shall be excluded from the computation of Gain From Sale.
1.19 GeDer1l1 Partner. Shall have the meaning ascn'bed to such t= in the preamble of
this Agreement, which definition shall refer to A ventura Tarragon GP, LLC, a Florida limited
liability compan;y, Il!Id IIIlY successor or successors thereto or additional general partner(s)
appointed in accordance with the teImS of this Agreement.
. 1.20 Gross Sales. The aggregate amount of all cash received (for the period beginning
with the fonnation of the Partnership unnl the consummation of the closing of the sale of the
final Unit) by the partnership from the partnersbi:p's business operations. and any eamings on.
investments of the partnership.
1.21 ):.and CaPital. Shall have the meaning assigned to such ~ in Section 3.1 (a..) of
this Agreement.
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1.22 Limited partner or Limited Partners. Individually, either TBmLgCln LP, Shefaor LP
or any successor or assign of each who becomes a substituted Limited partner in accordance with
1he tcImS of this Agreement, and, collectively, Tarragon LP, Shefaor LP, and any successor or
assign of the foregoing who becomcs a substituted Limited partner in accordance with the terms
. of this Agi:eemeot.
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1.23. 1Q!ll. Collectively, all loans wbich the Partnership may obtain from any source,
including, without 1imitation, acquisition loans, construction loans and mezz""ine loans, one or
more ofwbichmaybe secured by assets of the PartnerShip, including the Property.
1.24 Material Default. Material Default means the following: (a) if a Partner or ita
Affiliate breaches any material term or condition of an agreement where such breach shall have
continued for a period of thirty (30) days following the receipt by such partner' or Affilia1e of
. written notice specifying the alleged breach; provided, however, if the nature of "the breach is
such fbBj: the breaching partner or its A:fIiliate cimnot reasonably cure the same in suCh thirty (30)
day period; the breaching partner or its A.fIlliate shall not be deemed to be 'in breach if it
commences to cure within such thirty (30) jja.y period and diligently pursues the same to
completion within ninety (90) days following such tbirty (30) day period; or (b) if a partner or its
A:fIilia1e commits any fraud, or willingly and knowinglY steals or embezzles the Partnership
:limds; or (c) a partner or its Affiliate assigns or delegates its duties under an agreement to any.
o1her Person or entity without the prior written consent of the other party thereto other than as
contemplated by such agreement; or (d). if a partner or its Aflilia1e violates in any matenal:.
respect any laws wbich have a material adverse affect on the Project where such. violation shall'.
have continued for a pcrlod of thirty (30) days following the receipt by another Partner .or a.
govemmental agency ofwnttcn notice specifying the alleged violation; provided, however, if'the
nature of the violation is such thai the violating partner cannot reasonably cure the same in such.
thirty (30) day period, 1he violating partner shall not be deemed to be in breach if it co=ences
to core within such thirty (30) day period and diligently pursues the same to completion wifuin.
ninety (90) days following such. thirty (30) day period; or (e) a partner or its Affiliate working in
any capacity on the transaction to which this Agreement relates is dissolved under Florida law
and such.diss01ulion sba11 have continued for a period of sixty (60) days following tho receipt by.
anotlier Partner of wri11en notice specifying the dissolution; or (f) a Partner transfers or sells its
partnership Interests in 1he partnership or merges or consolidates with another c;ntity without t)lc
prior written consent of the other Partners, if required; or (g) if a. Partner. or any of its Affiliates
vohmUrily or involUIItari1y filcs for Banla1Iptl:y.
1.25 Net Cash Flow. All cash received by the Partnership in any Fiscal Year from the
partnership's business operations ancl any earnings on investments of the partnership, less Net
Cash l>roceOOs, Other Proceeds, rcserves and all disbursements [mq1uding; without limitation, the
repayment of principal and interest on loans made to the P artuersbip).
1.26. Net Cash Proceeds. The net cash proceeds received by the partnersbip due to the
sale, exchange or other disposition of all or substantially all of the Project or ~e Property.
1.27 Net Profits and Net Lqsses, Net Profits and Net Losscs mean the taxable income
or loss, as the case may be, for a period as det=ined in accordance with Code Section ?03(a)
computed with the following adjustments:
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o 1.31 Offer l'eriod. Shall have.the meaning ascnoed to such term in Section 4.7 of
this Agreemeut.
1.32 Other ~eeds., The net cash proceeds received by the Partnership due to the
reiiDancing of any JDortgage on, or from any non-liquidating involinrtary CQIlVersion or
disposition of, any portion of any real property, including, without limitation, any dasW\1ty
. insurance proceeds or condemnation awards to the extent that such proceeds exceed any
amomrts required to be applied to pa)'lIlf'Ill of arrj mortgage loan amounts or expended in .
repl!il: or restoration.
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(a) Items of gain, loss and deduction shall be computed based upon the book
values of the Parlnersbip's assets (in accordance with Treasury Regulations Sections 1.704-
1(b)(2)(iv)(g) and 1.704-3(d)) rather than upon the assets' adjusted basis for federal income tax
putposes;
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(b) Any tax-exempt income received by the partnerShip sball be included as
BIl item of groas income; .
(0) 'The amoUD1 of rmy adjustments to the book values Qf any assets of the
partnership pursuant to Code Section 743 shaI1 not be taken into aCccllmt;
(d) A1Jy ex;penditure of the Partnership descnocd in Code Section
70S(a)(l)(B) (including rmy elqlcoditureS treated as being descnoed in Code Section
70S(a)(2)(B) pursuant to Treasury RegulationS under Code Section 704(b)) Shall be treated as a
deductible cx:pense;
(e) 'The amount of gross iIicome and nonrecomse dcdnctions (as de;fined in
Section 6.4(b) hereof) specially allocated to any Partners pursuant to Sections 6.4 and 6.5 hereof
sba11 not be included in the computation; . .
(f) 'The amount of rmy increase (decrease) in fhe book value of an asset
pursoant to Treasmy ltegulatioDS Section 1.704-1(b)(2)(iV)(t) shall be trea.ted as an item of
revenoe (cx:pense); rmli
(g) :Net Profits shall specifically exclude ap.y amounts ~luded in Gain
Prom Sale. .
1.28 Nonrecourse Deductions. Shall have the meaning ascribed to such teIm in
Section 6.4 of this ~ment.
1.29 Off~r. Shall have ~ me'.ning ascribed to such teml in Section 4.7 of 1Dis
Agreement.
1.30 Offer Notice. Shall have the meaning ascnoed to such term ~ Section 4:'" of
this Agreement.
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1.33 }'1l!'lOO: or Partners. . I:ndi.vidually, arrj of General partner or a Limited Partner
and, conectively. General PaJ.tner and Li:aiited Partners.
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1.34 Partner Nonrecourse Debt. Shall have ,the meaning ascn'bcd to such t= in
Section 6.4 of this Agreement.
1.35 fartner Nonrecourse Debt Minimum Gain. Shall have 1he meaning aScribed to
such teIm in Section 6.6 hereof.
1.36 Partnersbitl. Shall have the meaning ascn'bed to such tcml in the Recitals of
this Agreement.
1.37. Partnersbitl Interest. The entire ownership interest of a pprtner in the
Parlnt'T,ih;p at any particular time, including tIre right of such Partner to any llDd all
cfutributions. allocations and other benefits to which such. Partnm' may be enlitled as provided
in this Agreement and 1hc AJ:.t together with the obligations of such Partner to comply with all
of the terms and provisions of this Agreement and the Act, and further including the Capital
AccOUllt of such Partner.
1.38 Partnenbiu Minimum Gain. Shalll1ave the meaning ascn'bed to such te:an in
" Section 6.4 of this Agreeniem.
1.39 Partoersbiti Percentages. The percentage interests of each of Partners in certain, .
ainotmts/matters re~iDg.thePartnersbip, which, as of the date hereof. are as set forth in
Section 3.2 hereof.
1.40 Partnersbiu purooses. Shall have the meaning ascribed to snch te:an in Sectioll
2.2 of this Agreement.
1.41 Penon. An individuill, corpcmdion. trust, association, unincorporated
association, 1imited partnerShip, partnership. limited liability company. joint ventnre or other
e:mity .
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.1.42. Priority Return. A ten peri:ent (10%) simple interest per .,.,mnn cmnulative
IClmJi.
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l.4S Reoffer. Shall have the meaDing ascn'bed to such term in Section 4.7 hereof.
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1.46 Reoffer Period. Shall have the meaning ascnoed to such texm in Section 4.7
hereof.
. 1.47 Sales Proceeds. The net cash proceeds received by the Partnership from either
a Total Presale or a Total Sale.
1.48 Seller. Shall have the me.n;ng ascnoed to such term in the definition of
eomract.
1.49 Seller General Partner. Shall have the meaning ascnoed to sric.h term in the
o"finitinuof Contract:
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1.50 Seller Limited partner. Shall have the meaning ascribed to such term in 1he
o definition of Contract.
1.51 Shefaor Develonment Management A!!!eement. Shall have the meaniIig
ascribed to. such tenn in Section 4.2 hereof.
I 1.S2. Shefaor Develonment Manager. Shall have the meaning ascribed to such term
! 0 in Section 4.2 'hereof.
1.53 Shefaor LP. Shall hilve the meaning ascribed to such term in the preamble..of:.
this Agr~, wllicb definition shall refer to Shefaor EH. L.L.C., a Florida 1iIIJited 1ia.OiI,il:y:'_
complllXY, and my suceessox(s) thereto or assignee(s} thereof who becomes a substitoted:..
Limited Partner in accordance with the temlS of this AgreeIl'P.Tlt.
1.54 Stivelman. Shall have the me."in g ascribed to such term in the definition. of
ContraCt.. StivelmaD is a principal in" pianinvest, :Inc., a Florida' corporation. which
corporation is a co-DlllIl3.ger and member in Shefaor LP .
1.55 Subiect Porchase Price. Shill have. the meaning ascribed to such term in
Section 4.7 of this Agreement. .
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1.56 Tarragon Develo11ment Management Al!Teement. Shall have the meaning
ascribed to such teml in Section 4.3 hereof.
1.57 Tarra!!On DevelQT)ment MaUlU!er. Shall have the me.n;ng ascribed.to such term
in Section 4.3 hereof. .
1.58 Tarragon Leasing: Manag:er. Shall have the meaning ascnoed to such term in
Section 4.3 hereof.
1.59 Tarragon LP. Shall have the meaning ascribed to such term in the Recitals of
this Agreement, wllich definition shall refer to Aventun Tarragon LP. ILC, a Florida limited
liBbi1ity complllXY, and any successor(s) thereto or assignee(s) thereof who becomes a
substituted Limited PartDer in accordance with the terms of this Agreement.
1.60 Tmagon partners. Collectively, General partner and Tarragon LP.\
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1.61 Tarra20n Sooth. Shall have the meatrlng ascribed to such teIlIl in the definition
of ContraCt.. Tarragon South wholly-owDS each of Tarragon Partners.
1.62 Term!!. 'Shall have t1le meaning ascribed to such tetlIl in Section 4.7 hereof.
1.63 Total Presale. The sale of substantially all of the assets of the partnership at
any IiIIl8 before 1hePartD<<ship bas entered into any agreement.for the purchase and sale of .a
Unit. .
1.64 Total Sale. The sale of substantially all of the Partnership at any time after the
partnership has entered inlo at least one agreement for the purchase and sale of a Unit,
:provided, that the net proceeds of such sale are equal to at )east twenty-five percent (25 %) of
the pmjected Gross Sales as contemplated by 1he Budget.
1.65 Trearnrv Rel!Ulations or Treas. Rel(. . A regulsti.on or :regulatiODJ! promulgated
l!DllertheCode. .
1.66 Undistributed Prioritv Return on Caoital. For each applicable Pa:rtner, at arJy
.poilI1 in time, that additional amount that would have to be distn'buted to such partner so that
when considered together with all amounts previously distributed to such partner pursuant to
Sectious 5.2(s), 5.3(c) and 5.5(c) hereof, such partner will have =eived a Priority Retum..on
suchPartner'B Umecoupcd Capital Contn'buti~n outstaDtting from time to time,
1.67 Unit. With respect to the Property and the partnership's business plan. in
CQIJDeCtion th=with, eollecti.ve1y, those condominium units and/or townhomC units to be
located thereon, whether as a result of the conversion of all of some of the Apartments to a
CODdODlinium folJD. of ownership or as a result of the developIIif:nt and construction of new
COIW"""inillm unilll andIor townhome units. .
1.68 Umecomed Canital Contribution. For each applicable Partner, as of any liMe,.
the amount equal to the balance, as of such da~, of an account which shall be maintained and
calcolated for such PaIlDer as follows: All amounts contributed to the Partnership as capital
pursuant to Article 3 hereof by. such partner (meaning that wi!h respect' to ShefaorLP, its
UlJrecouped CllFital Contribution will initially be equal to the Land Capital) sball be added to
the balance of such accoilnt, as and when made; and all distributions to such partner pursuant
to Sections 5.2(b), S.3(d) and 5.5(d) hereof, and those distributions to such Partner pursuant to
Section SA hereof sttn'butable to such partner's UDIecouped Capital Contribution, as
reasonably determined by General Partner, shall be deducted from the balance of ruch
account, as amI when made.
ARTICLE n.
NAME ANI! nTIsINESS OF THE P ARTNERSIDP: OTImR QUALIFICATIONS
2.11'arlnershin Name and Princinal Place of Business. The name of the
partnership shan be Shefaor Tarragon, LLLP, or any o~ name chosen D.-om time to 'lime by
General Partner, provided, that if the Partnership does not continue to elect to be treated as a
Florida limited liability limited partnership pursuant to the provisions of the Act, the name of
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the 1'artnership sba11 be "Shefaor Tarragon, Uc!.". l' artners shall have DO rights to or intcTcst in
the llame of the PaItnersbip. In the event that the name of the ParlDmhip shall be changed,
General partner shall record an appropriate amendmant to this Agreement and any other
documOllts required to be filed to effect such amendment in those jurisdictions in wbicb the
Partnership is or is required to be registered under applicable law. The address and principal
place of business of the partnership shall be do Tarragon South Development COl'p., 200 Bast
Las Olas.Boulevard, Suite 1660, Fort Lauderdale, Florida 33301. General partner may change
such address and principal place ofbusincss from time to time.
2.2 Puroose. The Partnership is organized for the purposes of (a) acquiring,
oWDing, operating, leasing and managing the Property, including, without limitation, tb.e rerrta1
of the Apartments, (b) setting forth a business plan in connection with the future development of
the Property, including, wilhout limitation., the conversion of all or some of the Apartments into
a condominium form of owncrsbip and/or the development and construc:tion of new
condominium units and townhome units, (c) ohtaining all govemmental'liccDScs, certificates
and/or approvals, BSmay be necessary pursuant to all applicable law in connection with tbC
activitics of the partoerSbip.as set forth in this Section, including, without limitation, those
licenses, certificates and BjlPl'Ovals as are necessary to operate an existing apartment proj cot and.
BIX/ and all site plan and other govermnental approvals required as a condition. to . the
contemplated development and construction of the Project, (d) developing, designing and
constructing any other improvClIleD1s upon the Property, (e) financing the acquisition of:the
. Property and the development and constnJl:lion thereof as contemplated hereby by entering into..
one or more Loans, (f) selling, exchanging or otherwise disposing of the Property mdlor:tbcr,
project or any part thereof or interest therein, and (g) engaging in any other activities which are
incidental or related to lbe foregoing, alone or in conjunction with others (collectively, the
''Partnership Pmposcs"). The Partnership shall bllVe all the powers that are necessa:ry to =yo
out the partoersbip Pmposcs.
2..3 Other Omilifications. Partners bave agreed that the Partnership shall exist as a
limited liability limited parfnersllip under the lsws of fue State of FlorisJ.a- In connection
therewith, General :partner is hCl:'hy authorized to :file a Statement of Qualliication for Florida
Limited Liability Limited partnership on behalf of the partnership in the 0fIil;C of the.Se=taxy
of State,.State of Florida. To fue exlerit that the business of the Partnership is conducted in BI1Y
other jurisdiCtions, Gcneral partner is further hereby authorized to :file such ofuer documentalion
under the law.s of such jurisdictions to the extent necessary or desirable to do business in such
. jurisdictions andIor to promote limitation oflia1n1ity for partners in sucbjurisdictions.
2.4 Promotional Materials. partnc:rs agree that advertising. mar'keting,. sales and
promotional Dlaterials of the Project shall describe the Project as a joint venture between
"Tarragon" and "ShcfaQ(. If either Tmagon Partners or Sbefaor LP cease to be a partner, sucl1
Partner's name sball be removed from such advertising, marlceting, salcs and other promotiOnal
matcrlals. .
2.5 Maintenance of Seoarateness. The partnership shall' satisfy customary
partnersbip (or other similar) formalities, inc1ulling the maintenance of partnership (or other
similar) records, including, but not limited to, lbe following:
(a)
Conduct the day to day management of the Partnership in its oWn name;
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(b) Maintain separate partnership records and books of account from any
other entity (mcluding Afliliates) and otherWise observe partnership formalities;.
(c) Prepare the financial statements and books and reco:rds of the
Partnership after the date of creation of the Partnersbip to reflect the separate existence of the
Partnetship from any .o1hcr Person or entity; provided, that the Partnership's assets. aDd
liabilities may be included in a consolidated financial statement issued by m Affiliate of the
partnership; provided, however, that any such consolidated :fiDancial statament will make clear
that the partnership's assets are not available to satisfy the obligations of such .A.ffilia1e, except
as pcmIitted by '!be terms of any loan to '!be partnerShip then outstoTlnm g;
(d) Pay or bear the cost of the .preparation of its financial statements and
have . such financial statemen!s audited by a certified public accoUIlting :firm: that is not
.ffiHotp.d with the Partnership, any member of the parioership or any of their respective
. Affiliates; .
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(e) Maintain its assets separately from the assets of any other person or
o entity (mcluding throug'h the maintenance of a separate bank account);
(f) Conduct all of the partnership's business correspondence and Q~er;.
communication in the Partnership's oWll name lUld on its own stationery;
(g) Not allow its Affiliates tc conduct any of the busiDess of the Partnersbip .
in such Affiliate's name;
(h) PaY its own .1iabilities, losses and expenses only out of its own funds and
. not allow its Affiliates to pay any liabilities of the Partnership out of such Affiliates funds. or
'0 assets;
(i) Maintain an arm's len"ath relationship with its Affiliates other than in
accordance with'the docume.nts executed in connection with a Loan;
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CD . Not guarantee or become obligated for the debts or obligations of any
other cnlity or person or hold out its credit as being available to saJiilfy the obligations of any
otbcr Person or entity, except as perJl!itted by the telIDS of the documents ex.ecuted in
connection with a Loan; .
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(k) Not allow partners of the p~sbip to assume or guarantee or become
obligated for the debts of the Partne.rShip or hold out its credit as being available to satisfy the
obligations of the partnership, except as permitted by. the termS of the documents executed in
connection with a Loan;
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(1) Not acquire or assume the obligations of its Affiliates or allow its
A:fIiliates to acquire obligations of the Partnership, except as peitDitted b1 the terms of the
documenlS executed in connection with a Loan;
(m) To the extent that the partners of the Partnership, the Partnership and
any of their respective .Affiliates share !he same officers and other elDployees, allocate fairly
and reasonably .overhead or other expenses that are l'roperly shared with such. entities,
including, without limitation, shared office space;
(n) To the extent that the partners of the partnerShip, the Partnership and
any of their respective Affiliates jointly contact or do lrosiDess wil:h vendors or service
ptovideIs or share offict space or other ov!:rbead expenses, allocate. fairly, appropriately and
. nonarbilrari1y 0JI'j costs and expenses in=ed in so doing between or among such entities,
with the resul1 that each such entity bears its fair share of all such costs and expenses;
(0) To the extent the Partnership contracts or does bUSiness with vendors or
serviCe provideIs wh~ the goods OI services are wholly or partially for the benefit of its.
Affiliates, allocate fairly, appropriately andnonarbitrarily any costs and expenses illcmred ill
so doing between or among such entities, wil:h the result that each suell enti.ty b!:ar5 its fair
sha:reof all BUell costs and expenses; .
(P). Identify and holcl itself out as a separate and distinct entity from:.ariy"
other Person or emi1y (Ino1niH"g Affiliates);
(q) Correct any known misunderstanding regarding its separate identity fiom
any other Person or entity (mcIuding its Affiliates);
(r) Other than in its consolidated financial statement, not identify" :the
o Partnership as a division or part of 0JI'j other person or entity (lIlCluding Affiliates);
(8) Not enter into or be a party to any tranSaction with any partner of the
partnership. or 0JI'j Affiliate, except in the ordinarY .course of its business and on terms wbich
are inlrinsica.111 fair mxl are no less favorable to it than would be obtained ill a comparable
o aIIIlll'-lengtb transaction with an unrelated third party;
(t) Hold all of its assets in its own name;
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(u) Not pledge its assets for the benefit of any other Person or entity, except
. as pennitted by the termS of 1he documents executed in coDllection with a Loan;
(v) Observe all limited partnership fou:nalities and o1her formalities required
. by its organizational documents; .
(w) Maintain adequate capital in light of its contemplated business
operations;
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(x) Cause transactions and agreements between t1le Partnership, on 1'he ODe
haDd, lllCl any one or more of its AffiliateS, on tbe otber hand (including transactions and
. agreclllents pursuant to which the assets or property of one is used or to be used by the other),
to be eotered into in tile names of the entities that are parties to the transactiou or agreement.
to be fonnally documented in writing and to be approved in advallCe by General partner in.
compliance with this Agreement, except as peIJDitted by the teIIDS of the documents executed
in conntction with a Loan;
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(y) },X,int.in its organization. business and books and records so as to
qualify at all times as a "Real Estate Operating Company" as defined in. the Employee
RetireDJ.ent Income Security M of 1974, including the rules and regulations promulgated
tbereuOOer, as amended; and .
(z) M,;nt.;n its own.separate taX identification number.
.ARTICLE m.
CAPITAL CONTRlBUTIONS AND P AR'rNlrn~PERc:ENTAGES
3.1 Jnitial Caoital Contn'butions.
(a) PurSuant to Amendment No.. 2 and as described in the definition oUbe. '
teIm "Contract". Stive1man has assigned the Contract to Tarragon s01ll:b, and in connection.
therewith, each of. Slivelman and Tmagon South entered into Agreement Regarding
Representalions and Wmanties and Indemnities Regarding Lincoln pointe, dated as ofMa:y 18,
2004 (the "Contract Assignment Agreement"). pursuant to the Contract Assignment Agreement,
amOIlg otberthings, each of Stivelman and Tarragon South contemplated the exec:otion of this
. Agreement. Accordingly, each of partners agre~ t1lat such assignment of t1le Contract shsll be
considered for all pUlposes the initial Clqlital Contn'bution by Shcfaor LP (an Affiliate of
Stivelman) to the capital of the Partnership in exchange for a Capital Accci=t credit equal to
Two Million DollarS ($2,000,000.00) deemed to have been made on the date hereof (the "Land
CBFital"), and it is agreed by Partners :for such pUIposes t1lll!: t1le amount of the Land Capital
represents the fair JDBTket value of such contn'bution.
(b) Each of l'aItners agree that Tarragon Partners have made various
expenditures through the date hereof in fmtherimce\ of the Partnership Purposes in accordance
with the Budget, which amounts shall be deemed to constitute the initial Capital Contributions to
the Partnership by Tarragon Partners. As of the date hereof: the initial Capital Contn"butions of.
Tarragon Partners are as follows: (i) General partner equals $ and (Ii) Tmagon LP
equals $ . Such initial Capital Contn"butions of Tan-agon l' artnors consist of those
smns expended through the d ate hereof: pro rata in accordance with each of T a:rragon Partner's
respective Partnership Percentages, in cash in fmtherance of the partnersbip Purposes by
Tarragon South, which initial Capital Contributions, for purposes of det=ining a Priority
RetolD, shall be a-ned to have been made on the date hereoi
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3.2 partnershiP Percentages. The Partnership Percentages of each partner in the
partnership shall be as follows:
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Name Parmershiu Percenta"e
General P artncr 0.1%
Tarra"on 11' 69.9%
Shcfaor 11' 30.0'10
TOTAL .
3.3 Additional Canital. From time to fune during the teIm of this Agreement, it is
anticipated that General partner (in its sole discretion) shall determine that the Partnersbipwill
requite the eontn"bution of additional funds beyond the initial Capital Contn"butions made by
p srtners as set forth in Secti on 3.1 hereof, provided, that under all circnmstances suc.b.
detemrlnation shall be coDSistent with tbe funding needs of the Partnership as determined by the
Budget A1 sueb time and from fune to time, Tarragon Partners shall provide one hundred
percent (100%) of such funds. The pmties hereto understand, acknowledge and agree that under .
all circumstances during the t= of this AgreeIllCOt, TauagonPartners shall, be obligated to, in
the aggregate, contn"bute a minimum of $3,000,000.00 of cash capital contributions for the
acquisition and development of the Property as conteIDplated hereby pursuant to the Budget.
Furth=orc, with rcspect to the constrUction and development of the portion of the Property
relating to new condominium 1JIlits and tovrohome umts, Tarragon Partners shall, in the
aggregate, contnbutc in cash a minimt!Dl ofone-tbird (113) of the capitBl required therefor
pursuant to the Budget
3.4 Guaranties. AlZTeement to pled"e partnersbio Interests. Partners acknowledge
that the Loans will1ikely require certain guaranties of the payment and performance obligations
of tho l'artnersbip uoder the documents to be eKecuted in connection with such LollDS.
Accordingly, General partner agrees that it or its AffililUes shall execute any such. required
guarantics in fonn and substance satisfactory iIl all respects to General l'artner and/or its
Affiliates with respect to such Loans (but under no circumstances shall any of such guaranties be
guarantics of any other obligations of the partnership). Shefaor LP and its Affiliates shall DOt be
obligated to personally guaranty any obligations of the l'artilersbip lIDder the documen.ts
~ecnted in connection willi tho Loans. In the event that the P artncrsbip shall enter into
documents evidencing or otherwise cxeCllted iIl connection with any m,",7.'7R1'l;ne or other
financing, if so reqcircd by the financial institution providing same, Partners agree (on a ~on-
recour.se basis) to pledge their respective partnersbip iIltcirests to such financial illstitution..
3.5 Jtetum of Caoital Contn"butions. No partner shall be entitled to fue return of its
Capital Contnbutions at any particular time, except upon t,.",,;nation or dissolution of the
partnership or as otherwise exprcssly provided herein. A partner sball not be entitled to ",,",And
or receive property other thm cash at the time of termination or dissolution. Neither General
partner nor any Limited Partner shall be personallY 1iable for the return Dr repayment of all or
any portion of the capital or llndistnbuted profits of any Partner, it being expressly agreed thllt
any such return of capital or .undistnbutcd profits pursuant to this Agreement shall be made
sol ely from the assets (which shall not include any right of contribution from Generall' artnor or
any Limited partner) of the Partner?bip.
ARTICLE IV.
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P ARTN:ERBHIP MANA r.:F.MEl\'T
4.1 Manaecment General partner sball have exclusive responsibility for the
management of the Partnership. General Partner shall devote such time to the affairs and
business of the Partnership as it may from time to time deem necessary or desirable.
4.2 RiEl;)ts and powers of General Partner. Without limiting the gcnera1ity of Section
4.1 hereof and subject to the t= hereof; General partner shall have all of the .rights and powers
which may be possessed by a. gcneral partner in a limited partnership.foxmed under the laws of
the Siate of Florida, which rights and powers are otherwise conferred by ia.w or which are
necessary, advisable or convenient to the discharge of General Partner's duties under tbis
. Agreement and to !he management, direction and control of the business affaiIs of the
Partnership, inc1urling the following rights and powers (provided, that the failure to enumerate
herein any specific rlgbl or power shall not be deemed to imply a limitation on the rights and
powers of General ParllW'): .. . . .
(a) To cngage such employees, agents, attomeys, accountants, consultants,
businesses or other p.ersons or entities as General partner may deem necessary or advisable;
(b) To execute on behalf of the partnersbip an instruments and do=ents as
General Partner may deem necessary or advisable in order to czrry out and fulfill the P artn~bip.
Pmposes;
(0) To acquire and convey partnership Jnterests, :real property and interests
therein, including, witlJout limitation, easements and rights of wit'], and to sell or otherwise
transfer the Partnership's interest in any real property; a conveyance ofreal property held in:the
Partnership name, and any othct instrument affecting title to real property in wbich. the
Partnership has an il)lcrest, sb.a11 be ex.ec:o:led in the Partnership n= by General. Partner;
(d) To borrow IIloney; to make, issue, accept, endorse, bypothecate and
execUte promissory notes, drafts, bills of exchange, loan agreements and other instruments and
evidences of indebtedness; and to secure the payment thereof by mortgage, hypothecation,
pledge or other assignmcnt, or granting of security interesta in all or anypart of the Partnership's
interest in any pioperty then owned or leased or thereafter acquired or leased by the Partnersbip;
an en=brance of real pr6perty held in the Partnership name, and any other instrlllIlent affecting
title to real property in which the Partnership has an interest sball be executed in the Partnership
:name by General partner; . . . .
(e) To enter into, terminate or cancel any agreements, leases, contracts and
undertakings as it may deem necessary or advisable for the conduct of the business of the
partnersbip;
(f) To open, maintain and close bank and other investment accounts and to
draw checks and other orders for the payment of money;
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(g) To take S?ch actions and in= such expenses on behalf of the Partnersbip
as it may deem necessary or advisable in connection with the conduct of the business of the
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Partnership, iDc1uding, but not liJDited to, tbe reimbursement of all reasonable expenditures made
on bebalf oftbe l'artnClShip by General Partner or any other Person; .
(h) To exercise any powe.r ofattoIlley granted by the other Partners on their
behaJe'
(i) To invest any fuDds of the Partnership Dot needed immediately. for
partnership Putposcs in certificates of deposit, investment grade commercial paper, money
market funds, federally insured bank accounts or other similar securities as General Partner may
determine; and
(D To do any act or execute any document on behalf of the Partnership as
it, in its sole discretion, deems necessary, convenient, incidental or appropriate. to the
furtherance of the business of the Partnership.
4.3 GetieraJ partner and Its Affiliates: Other Affiliate Transactions. General
. PartD.crmay employ, or otherwise deal with on behalf of the Pllrtnersb!p or iny Partner,
iDcluding GCDC}:Sl Partner, any Affiliate. or any entUy or Person who is directly or indirectly
iDterested in, or affifuted or connected with, an ~rprise eiJ.gaged in by a 'Partner or an
Affiliate, to sell or purchase goods or perform services, including management services, for
the Partnership, or to make loans to the Partnership; provided, however, that any contract
between the Partnership and any Partner or their respective Affiliates must be on terms .which
are comparable to those obtainable in an arni.S'-length tranSaction.. Notwithstanding anythii1g;,.
to the contrary coutained herein, simultaneously upon the execution of this Agreement. 1he
Partnership will ent& into the following agreements:
(a) Development Management Agreement Regarding Phase 1, dated as of the
date hereof, between the Partnership and T=gon Partners (''Tarragon Development Managet''),
in the form attached hereto as Schedule "C" with respect:to development services rendered by
Tmagon Developroeot Manager in connection with that portion of the Proj ect relating to the
convemon of an or some of the Apartments to a condominium form of ownership (the
"T8II1lgon Developxnell1 Management Agreement").
(b) Development Management Agreement RegllICling phase II, daied as of the
date hereof, between the Partnership and Sbefaor Development, LLC, a Florida limited liability
company ("Shefaor D~elopment Manage.r'), in the form attached bereto as Schedule "D" witil .
respect to development services rendered by Shefaor Development Manager in =ecti.on witil
tbal. portion of the Project relating .to the development and construction of. new condominium
UDits and/or townhome units (the "Sbefaor Development Management Agreemenf');
(c) Management Agreement, dated as of the date hereof, between the
Partnership and Tauagon Management, Inc. a Texas corporation (''Tm'agon Leasing M~ager"),
in the form attaclled hereto as Schedule "E" in connection with leasing and. management
servicc:s rendered by Tmagon Leasing Manager with respect to the Apmtmcnts; and
(d) Consulting Agreement, dated as of the date hereof, by and among the
Partnel'Ship, Sbefaor Development Manager, Stivelman and Gilbert Benhamou in connection
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with a contingent CQ11SIl!ting fee payahle to Shefaor Deve10pmentManager with respect to the
Project
In addition to the foregoing agreements with Affiliates, Partners agree thBt (1) Genera}
Partner or its Affiliate shall be engaged to perfonn accounting and reporting services on behalf
of the Partnersbip for a fce equal to $2,500.00 per month payable in arrears from the date of the
&Cqllisition of the Property and due each calendar month on the first (lll) iiay of each such
calendar month; (ii) General partner or its J>. ffiH.te sball be engaged to perfOIm accounting and
reporting services in connection with the conversion of all or any part of the Apartments IlIld the
. Property to a condominium form of ownership and my construction rela1ed. activities with
respect to the Units (ic. converted and new) for a fee equal to $2,500.00 per month payable in
mrears from the date of the acquisition of the Property and due eac.b calendar month on the :first
(l~ day of each such calendarmontb until the epd of the Fiscal Year in whicb the last Unit is
sold and closed and all accounting reporting and other associated responsibilities for such Piscal
Year IlI'C completed; (ill) General Partner or its Afliliate shall have the right to exclusively
provide and/or arrange for mortgage services for the end loans associaled with the Units with all
feci derived therefrom to accrue solely to the benefit of General Partner' or its Affiliate; and (iv)
if Shefaor LP sbaU elect to perform (or for its Affiliate to perfonn) sales and marketing services
in connection with the sale of new condominium units and/or new townhome =its, wbicb'
election shall be made no later than thirty (30) days after General partner has notified Sbefacir LP
that the Partnership has elected to go forward with the dev~lopmcnt and constIuction of'such
units, Shefaor LP or it; Affiliate, as the Clllle may be, sball be paid a fee equal to two and tbrec:.
quarter perCCDt (2 l'%) of the gross sell out of such units payable pursuant to and in acco:rdance .
with the t=s and provisions of a saleS and marlceting agreement in form and substance
reasonably acceptable to the Partnership and Shefaor LP orits Affiliate, as the case may be..
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4.4 OrMzation and Administration.. General partner shall take all necessary
measures to organize and administer the Partnership, and the partnership shall reimburse General
Partner (or Af!iliates .thereof, as applicable) for expenses incum:d in connection with such.
organizational and administrative ~attcrs.
4.5 General Partner's Duties. General Partner's .~m;";!<\rative duties shall include
(without limitation) bookkeeping, record keeping and .the preparation and filing of tax returns
and tax elections, as may be required or advisable from time to time. In addition, General
partner shall timely file all other funns, documents or writings with respect to the business and
operations of the Partnership thBt shall be required by any governmental agenCy or .autbority
baving apparent jurisdiction to require such forms, documents or other writings. General Partner
may employ attorneys, accountants and other agents to perform all sucb duties. To "the eict=nt
that ~erviccs are provided to the Partn.P directly by General Partner or its Affiliates, the-
Partnership shall pay reasonable. compensation therefor, determined in accordance with
customary rates oflocal professionals or other providers of comparable services and otherwise
set forth in Section 4.3 hereof. .
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4.6 Tax Matters Partner. The Geoeral partner shall be the ''Tax Matters Partner"
p=ant to and as provided in Code Section 6231 and shall have aU of the powers and duties
expressly conferred on the Tax Matters Partner by the Code, as well as those powers and ~ties
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as are Decessary aDd proper for the exercise of the Tax Ma.tters Partner's powers and duties under
tbe Code and applicable law.
4.7 RiEbt of First Offer. In the event that General Partner decides to sell the entire
Project (whether as a Total Sale, a Total Presale or otherwise), prior to putting the Project on the
m8Ikel, General Partner shall offer (an "Offer") to Shefaor LP the right to purchase the entire
Project at a purchase price consistent with the purchase price GeneralPaItner has at such time
elected to offer to third parties and pursuant to material business terms General Partner has then
elected in its sole discretion to disclose to third parties (tbe ''Texms''). General Partner shall
deliver. the Offer in writing to Shefaor LP (which Offer shall be in substantially the fOIIll General
partner is prepared at such time to deliver to third parties) (an"Offer Notice"). In the eVent that
. Sbcfaor LP does DOt accept an Offer by exec:uting a counterPart of the Offer Notice applicable to
such Offer within thirty (30) days of its receipt of such Offer Notice (an "Offer Period"), then
such Offer shall be deemed rejected by Sbefaor LP. Upon the earlier of the date that (x) General
Partner receives notice from Shefaor LP. of its rejection of an Offer Notice and (y) the
tenni:nation Df a particular Offer Period without having an acceptance from Shefaor LP of the
Offer applicable thereto, General partner shall be permitted to then convey the Project to a'third
party in accordance with the Terms, including, without limitation, the purchase price set forth in
the subject Offer Notice (the "Subject Purchase Price"). Notwithstanding anytbing contained
herein to the contrary, in the event that a third party buyer of the Proj ect requests as a result of its
due diligence in connection with the acquisition of the Project for a fair and reasonable reduction
in tbe Subject Purchase Price, General Partner shall reo.ffer (a "Reoffer'') the right to purchase.
the entire Project to ShcfaO! LP at such reduced purchase price. In the event that Shefaor'LP':
does nota.ccept or reject a Reoffer within ten (10) days of the notification of the same by General
Portner (a ''Rcoffer Period''), then such Reoffer shall be deemed rejected by Sbefaor LP. Upon
the expirafion of an applicable Reoffer Period (provided, Shefaor has rejected or been deemed to
have rejected the Reoffer applicable thereto), Genei"al Partner shall b.e permitted in all respects to
agree with a third party purchaser to such reduction without having in any manner or in any way .
to reinstate the right of Shefaor LP tri accept or reject a purchase. of the 1?roj ect for such :reduced
price. In the event that an Offer Dr a Reoffer, as the case may be, is accepted byShefaor LP prior
to the expiration of the Offer Period applicable thereto or the Rcoffer Period applicable thereto,
respectively, the closing in connection with such Offer or Reoffer, as the case may be, shall
occur no 1ster than ninety (90) days following the execution of a purchase and sale agreement by
cach of the Partnersmp and ShefaorLP.
4.8 Shcfaor's Financing Consent RilZht Loan Provided bv General hrtner Affiliate:
Particillatiim Fees to Lenders. Shefaor LP shall have the right to consent to the Partoership
entering into agreements cvid~g.. or otherwise relating to, any Loan, which approval of
Shcfaor LPshall, (x) be based on a final t= sheet containing the material business termB of the
applicable Losn and (y) under ell circomstances not be lIIJTeasonably withheld, delayed Of
.conditioneil. ShefaorLP shan be deemed to be unreasonable in the'event that it does not ~ent
to any Lam for reasons inconsistent in any respect with then current market ii'Nlnr-jng
mrangernenls governing projects similar to the Project and in a similar geographical location as
theproject. In the event that Shefaor LP does not respond to any request for its consea1 as
required by this Section 4.8 within five (5) business days of the date of such request, the consent
of Shefaor LP shall be deemed' given. Notwithstanding anything contained herein to the
~trary, Shefaor LP consents in an respects to the loan to be made by. Eurohypo AG, New Yorlc
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Braoch, to the Partnership simultaneously with the execution and delivery of this Agreem=1.
tho parties agree !bat if General Partner or any of its Affiliates provides a LOan to the
Partnership, such Loan shall be at an interest rate no 'greater than the most favorable market rate
then available for such type of financing by third party institutional lenders, as det=ined by
General Partner in its discretion. Fmtheonorc, in the event that General Partner causes. the
Partnership to obtain B Loan from an institutional third party lender, Partners agree that .llIlY
lender participation fee or a lender percentage of profits shall be structured as an cx:pcnse of
Ta:rragon Partners and not the Partnership.
4.9 Deadlock Resolution: Arbitration. (a) No~thstanding anything contained
herein to the contrary, at such time, if ever, as Partners sball be deadlocked when voting over
a matter that requires their approval pursuant to Section 4.8 of this Agreement or elsewhere in
this Agreement (a "Deadlock'), then PartnerS sball meet to discuss such Deadlock (a
"Deadlock Meeting") within ten (10) days after any Partner sends a notice to the other Partner
which specifies a time, date and place for such Deadlock Meeting; provided, 1hat ~ such
Deadlock Meeting must be beld within Miami-Dade County, Florida, or Broward County,
.Florida. At such Deadlock Meeting, Partners shall use their best efforts to cause each Partoer
(a) to have an opportUniJ:y to present its views on the matter or matters which are the subject
of the applicable Deadlock and (b) to negotiate in good faith in an effort to resolve such
Deadlock. In the event that Partners are unable to resolve the applicable Deadl.ocJc, then. ~ .
Partner may, at its oplion, submit the Deadlock to an arbitrator for a resolution pursuant.: to
clause (b) below.
(b) A Partner shall submit any dispute or claim 1lIlder this Agreement to
arbitration by notifying the other Partner in writing ifp=itted to do so pursuant to the t=s. of
this Agreement. After receipt of such notice, Partners shall have five (5) busmess days to
mutually select an lllbitrator. If Partners cannot mutually select an arbitrator, the llIbitrator shaD.
. be SeIectedin' accordlince with the roles of the American Arbitration Association .in.Miami-:DJl.d!:
County within ten (10) days after such initial five (5) business day period. Each Partner shall
have the opportnnity to submit a written position to the mbitrator and oxal argument for thirty
(30) minutes before the mbitrator. The written position shall be submitted witbin ten .(10)
calendar days from the date an arbitrator is selected and arguments heard with five (5) business
days thereafter. The arbitrators shall rule within ten (10) business days after arguments arid the
:ruling sball be final and binding on the parties and the Partnership, The llIbitrator shall also
determine who will pay its fees and costs and the fees and costs of Partners incuxtcd in
connection with arbitration unless specifically provided otherwise in this Agreement. The
arbitrator should be a person with experience in connection with real estate projects similar to !be
Property and in Miami-Dade County, whether from the business or legal perspective.
ARTICLE V.
DISTRD3UTIONS
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5.1 Limitations. Net Cash Flow, Net Cash Proceeds and Other Proceeds shall be
distn'buted from tinle to time at the discretion of General Partner ev!lluated on a quarterly basis
pursuant to tJie next sentence and make distributions accordingly. The Partnership must have
available to it unencumbered cash funds sufficient for such distribution after taking into account
any reserves deemed necessary by General Partner. .
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5.2 Net Casb Flow. Except as otherwise provided in Section S.4 hereof, any Net
Cash Flow of the PlIrll1ership shall be distributed to Partners in the following order and priority:
(a) First, to Partners, in proportion to their respective Undistn'buted Priority
Rctutn on Capital balances until their respective Undistn'butcd Priority Return on Capital
balances are reduced to zero;
(b) Second, to Partners, in proportion to their respective Unrecouped Capital
Contribution balances lIlI1;il their respective Unrecouped Capital Contn'butio;n. balances are
reduccil to zero; and
(c) Thereafter, to Partners in accordance with their respective Partnership
Percentages.
5.3 Net Casb Proceeds: Other Proceeds. Except as otherwise provided in Section S.4
hereof; distn'butions ofNe! Cash Proceeds and Other Proceeds shall be made in the following
order and priority: .
(a) First, to payment of debts and liabilities of the Partnership which. are then
due and owing, except any expenses or debtll which may be defen-ed in accordance with any
agreement providing for their deferral to the eJ9:cot that the Partnership expects to receive
subsequently Net Cash Proceeds which can be used to satisfy such debts and liabilities, provieed,. "
that 1bis Section 5.3(a) shall not apply in the case of Other Proceeds;
(b) . Second, to'the setting up of reserves (if any), as det.".",;n..;:i by General
Partner, aild, at the expiration of the reserve period, as detcnnined by. General Partner, the
balance of the reserves, if any, shsll be distn'buted as Net Cash Proceeds received at the end of
the reserve period, provided, that this Section 5.3(b) shall not apply in the case of Other
Proceeds;
(c) Third, to Partners, in proportion to thefr respective UndiStn'buted Priority
Return on Capital balances, until their ,respective Undistn"buted Priority Retum on Capital
balances are reduced to =; .
(d) Fourth, to Partners, in proportion to their respective Umecouped Capital
Contn'bution ba1ances, until their respective Unrecouped Capital Contn'bution balances are
reduced to zero; and . '
(e) Thereafter, to Partners in accordance with their respective Partnership
Percentages.
SA Distn'butions upon Liouidation. Notwithstanding anything ,to the contrary set
forth in this Agreement, in the event the Partnership (or a Partner's interest therein) is
"liquidated" within the meaning of Treasurj Regulations Section 1.704-1(b)(2)(ti)(g), then any
distnbutions shall be made pursuant to this Section 5.4 to Partners (or such Partner, as
. appropriate), in accoroance with their positive Capital Account balances in compliance with
Treasury Regulations Section 1.704-1 tb )(2)(ii)(b)(2).
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5.S Sales proceeds. Except as ot\1erwis~ provided in Section 5.4 hereof, distnbutioDS
ofSBles Proceeds shall be made in the following order and priority:
(a) FiIst, to payment of debts and liabilities of the Partnership which are ch1c
and owing, except any ellpenses or debts which may be dderred in accordance with any
agrCCDlcnt providing for their deferral to the extent the partnership expects to receive
subsequently Sales Proceeds which can be used to satisfy such debts .and lia.bilities;,
(b) Second, to the setting up ofTeserves (If any), as detp.Tmined by General
Pilrtner, and, at the ellpiration of the reserve period, as determined by . General Partner, the
balance of the reserves, if any, shall be distdbuted as Sales Proceeds received at the CIld of the
reserve period;
(c) 'Third. to Partners, in proportion to their respective Undistributed PrioritY
Rctnrll on Capital balances, until their respective Undistributed Priority RetaIn on Capital
balances arc reduced to zero;
(d) FoUrth, to Partners, in proportion to their respective Unrecouped Capital
eonm'bution balances, UDlil their reSpective Umecouped Capital' Contnbution balances are
reduced to zero; and
(0) Thereafter, in the case of Sales Proceeds arising from a Total Presale, .1%
to General Partner, 49.9% to Tarragon LP and 50% to Shefwr LP, or in the case Sales Proceedll, .
arising from a Total Sale, .1% to General Partner, 59.9% to Tarragon LP and 40% to ShefaorU'. .
5.6 Withholding. If the Partnership is required by law or regulation to witbhold sod
pay 10 any taxing or other gove=enta1 authority my amount otherwise distnbutable to a
Partner, the Partnership shall be entitled to withhold such amount and the amo"l1Ilt so witbheTd
shall for purposes of det"1J"ining such Partner's Capital Accoun1 be treated as if distributed to
such Partner.
5,7 Generall'rovision. For purposes of calculating a Priority ltetum, the balance of
any applicable amounts shall be determined as of the close of each calendar month and as of the
. daie of any distribution, payment or other event requiring an adjustment to any such item. .
ARTICLE VI.
ALLOCATIONS
6.1 Allocation of Net Losses. Except as otherwise provided herein, Net. Losses
incmred by the Partnership for each Fiscal YeIir shall be allocated to the Partners in theofollowing order and priodty:
(a) First, to Pm"lners in proportion to the am01mt of and until the cumulative
Net Losses allocated to eich (or their predecessors in interest) pursuant to this Section 6.1 (a) for
the current and all prior Fiscal Years are equal to the cumulative Net Profits, if any, allocated to
eacb (or their predecessors in interest) pursuant to Section 62 hereof for all prior Fiscal Years,
and in rfn'erse order of snell prior allocations ofN et Profits;
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(b) Second, to Partners in proportion to their respective parmership
~ercentages until any Partner's Capital Accouut balance equals zero;
(c) . Third, Net Losses shan be divided among and bome by those Partners
with a positive Capital Account balance in accordance with each such Partner's respective
proportionate positive Capital Account balance;
(d) Fourth, once all partners' Capital Accounts arc reduced to. zero, Net
Losses shall be allocated to those Partners who bear the economic risk of such Net Losses in
accordance with Treasury Regulation Section 1.704-2; and
(e) Thereafter, Net Losses shall be allocated to Partners in proportion to 1bei:r
respective Partnership Percentages.
6.2 Allocation orN et Pronts. Except as otherwise provided herein, Net Profits of the
Partnership for each Fiscal Year shall be allocated to partners in the following order.and priority:
(a) First, Net Profits shall be allocated to Partners in proportion to the amount
of and until the cumulative Net Profits allocated to each (or their predecessors in interest)
pursuant to this Section 6.2(a) for the c:urrent and all prior Fiscal Years are equal to the
cumulatiVe Net Losses; if any, allocated to each (or their predecessors in interest) pursuant to
Section 6.1 hereof for all prior Fiscal Years, and in reVerse order of such prior allocations of Net
Losses; .
(b) Second, Net profits shall be alloca:ted to partners in proportion to the
amount of the Priority Return computed with respect to such Partners' respective Umecouped
Capital Contrihution balances during the relevant time period, until such amount of allocated Net
Profi1Bequals the amount of the Priority Retm:n computed with respect to each Partner's
respective Umecouped Capital Contribution balance during the relevant time period; and
(c) Third, Net Profits shall be allocated to Partners in accordance with their
respective l!artncrsbip Percentages.
6.3 Allocation of Gain From Sale. Gain From Sale shll1:l be allocated to Partners in
the fonowing order of priority, after taking into account all Capital AcCOlmt adjustments for the
Fiscal Year during which the subject transaction occurs and other allocations under Article VI
hereof; other thm allocations pursuant to this Section. 63 and distn'butions pursuant to Section
5.4 hereof . .
(a) First, to each of partners in proportion to the amount of and unl11 the
cumulative Net Profits allocated to each pursuant to Section 6.2(a) hereof for the current and all
prior Fiscal Years and the Gain From Sale allocated to each pursuant.to this Section 6.3(a.) are
equal to the cumulative Net Losses, if any, allocated to each pursuant to Section 6.1 hereof for all
prior Fiscal Years, and in reverse order of such prior allocations of Net Losses;
(b) Second, to each of Partners in proportion to the amount of and until th
CUIDlllative Net Profits allocated to each pursuant to Section 6.Z(b) hereof for the current and all
pri?IFiscal Years and the Gain From Sale allocated to each pursuant to this S.ection 6.3(b) are
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equal to the amouD! of the Priority Rctun1 computed with. IeSpect to each Partner's respective
UnrecoupeQ Capital Contribution balance during the relevant thnc period; and
(c} Thereafter, in the case of Gain From Sale arising from a ToW Presale, .1%
to General Partner, 49.9% to Tarragon ll' and 50% to Shefaor LP, or in the case of Gain From
Sale arisU1g from a. To1al Sale, .1 % to General Partner. 59.9% to Tarragon LP and 40% to
Shdaor Ll'.
6.4 Minimum Gain Charl!ebacks and Nonrecourse Deductions.
(a) partnershin Minimmn Gain Chan!eback. Notwithstanding any other .
provisions of this Agreement, in the event that fuere is a net decrease in Partnership Minimum
Gain dcring a tax year, each of Partners shall be allocated itCrns of in=e and gain in
accordmce with Treasury Regulations Section 1. 704-2(f). For purposes of this Agreement, the
t= "Partnersbip Minimum Gain" shall have the meaning set forth in Treasury RegulwOIlS
Section 1.704-:2(b)(2), and any Partner's sharc ofPartne.rsbip Minimum Gain ~all be determined
in accordsnce with Tre.sui'yRegulations .Section 1.704-2(g)(1), This Section 6.4(a) is intended
to comply with the minimum gain chargeback rcquiremeo1 of Treasury RegUlations Section
1.704-:2(f) and sball be interpreted and applied in a manner consistent therewith.
(b) Nonrecomse Deductions. Notwithstanding any other provision of this
Agreement, Nonrecourse Deductions shall be allocated to each of Partners in proportion to.their.,
respective partnership Percentages. "Nonrecourse Deductions" shan have the meaning set:fOrth.
in Treasury RegulatiollS Section 1.704-2(b)(1). This Section 6.4(b) is intended to comply with.
Treasury Regulations Section 1.704-2(e) and shall be interpreted and applied in a T"Rnner
consistent therewith.
(c) Partner Nonrecourse Debl Notwithstanding 8!rJ other provisions of this
Agreement, to the extmt required by Treasury Regulations Section 1.704-2(i), any items of
income, gain, loss or deduction of the Partnership that are attributable to a nomecourse debt of
the Partnership that constitutes "Partner Nonrecourse Debt" asdCDned in Treasury Regulllti.ons
Section 1.704-2(b)(4) [mcluding chargebacks of partner nonrecomse debt minimum'gain) shall
be allocated in accordance with the provisions of Treasmy Regulations Sectio!J. 1. 704-2~. This
Section 6.4(c) is inteDded to satisfy the rcquiremc:nts of Treasury Regulations Section 1.704-2(i)
(mcluding the partner nonrecourse debt minimum gain chargeback requirements) and shall be
interpreted and applied in a manner consistent therewith.
6.5 Qualified Income Offset. Any Limited Partner who unexpectedly receives an
adjoslment, allocation or. distribution described in Treasury Regulations Section 1.704-
1(b)(2)(ii)(d)(4),. (5) or (6) that causes a deficit balance in its Capital Account (adjusted as
provided in Treasury Regulations Section 1.704-1(b)(2)(u')(d)) shall be allocated items of income
and gain in an am01lllt and a manner sufficient to eliminate, to the extent required by the
Treasmy Regulations, such deficit balance as quickly as possible. This Section 6.5 is intended to
comply with the alternate test for economic effect set forth in Treasury Regulations. Section
1.704-:1 (b)(2)(u') (d) and shall be interpreted and applied iI+ a manner CIlnsistent therewith. In. the
event that sny items of income or gain are allocated to one or more Partners pursuant to this
Section 6.5, subsequent items of income, gnin,loss or deduction will first be allocated (subject to
the provisions of Sections 6.4 hereof and this Section 6.5) to. each of Partners.in a manner
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6.6 Disrn'butions of Nonrecourse Liability PToceeds. If, during a taxable year, the
ParlDership makes a disln'bution to any partner that is attributable to the proceeds of any
nonrecourse liability of the Partnership that is aUocable to an increase in Partnership Minimum
Gain pursuant to Treasury Regula.tions Section 1. 704-2(h), then the l' artncrship shall elect, to the
extent pennitted by Treasury Regulations Section 1.704-2(h)(3), to treat such distribution as a
dislo'bution that is not allocable to an increase in Partnership Minimum Gain. To the extCIIt that
such distribution is treated as allocable to an increase in. partnership Minimum Gain or .partner
nonrecourse.debt minimum gain", as defined in Treasury Regulations SeCtion 1.704-2(i}, any
increase in a Partners share of suc:b partnership Minimum Gain (computed in accordance with
Trcasory Regulations Sections 1.704-2(g) and 1.704-2(i}(5)) attributahle to such distn'bution
shall be treated as an item of income allocated to such Partner pursuant to either Section 6.2 or
6.3 that COII'~onds to the subsection of Article 5 hereto pursuant to which the dis1noution was
made. The purpose of the preceding sentence is to avoid a double aUocaJion of Net Profits or
items thereof (including for this purpose only, Gain From Sale) to a.1'artner pursuant to Section
6.2 hereof as a result of (a) an allocation of Net Profits or Gain From Sale pursuant to either
Section 6.2 or 6.3 hereof and (b) an,additional allocation ofitems of income or gain as a. result of
a subsequent "minimum gain chargebac:k" pursuant to Sections 6.4(a) or Section 6.4(c) hereoL
10 addition, General Partner shall ha'\!e the authority to allocate excess non-recourse liabilities. as.
it detem1ines in compliance with Treasury RegulatioDS Section 1.752-3(a)(3).
6.7 General Provisions. Whenever a proportionate part of Partnership Net Profit,
Gain F= Sale or Net Loss is credited or charged to a Partner's Capital Acco1JlJt, every item of
profit, gain, loss, deducDon or credit entering into the computation of such Net Profit, Gain From
Sale or Net Loss, or applicable to the period during which such Net Profit, Gain From Sale or
Net Loss is rcalizcd, shall be considered credited or charged, as the case may be, to such. account
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designed to result in each partner having a Capital Account balance equal to what it would have
bcco had the original aDocation of items of income or gain pursuant to this Section 6.5 not
occmred.
. 6.8 Income Tax Allocations: Authority of Generai Partner to Varv Allocations. Por
purposes oiCade Sections 703 and 704, or any similar tax provision of any state or 'other
jurisdiction, the detcmlination of each Partner's distnoutive share of all items of tax significance,
whether income, gain, loss, deduction or credit for any Fiscal Year shall be made in a=rdance
. With the provisions of Articles 5 and 6 hereof: However, notwithstanding the provisions of
Section 12.3 below, General partner is authorized and directed to allocate income, gain, loss,
deduction or credit (or item thereof) arising in any year differently thm otherwise provided for in
Articles 5 or 6 hereof to the. extent that allocating income, gain, loss, deduction or credit (or item
thereof) in the manner provided for in Articles 5 or 6 hereof would cause the allocations of each
. Partner's distributive share of income, gain, loss, deduction or credit (or item thereof) not to be
pennitted by Section 704(b) of the Code. Any allocation made p\1rs1Jan.t to this Section shall be
deemed to be 8 complete substitute for any allocation otherwise Pl'Ovided for in Articles 5 or 6
llereof and no amendment of this Agreement or approval of any Partner shall be required.
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6.9 Contnbnted Property. In the event that Partnership property is subject to Code
Section 704(c) or is revalued on the books of the Partnership in accordance with Treas. Reg.
Section 1.704-1(b)(2)(iv)(g), each P81tner's Capital Account shall be adjuste~ in accordance with
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Trcas. Reg. Section 1.704-1(b)(2)(iv)(g) for allocations to them of depreciation, amortization and
profit or loss, as comp1llcd for book purposes (and not tax purposes) with respect to such
property. Any gain or loss attn'butable to contn'buted property shall be allocatcd to the
alntn"buting partnerp=ant to Code Section 704{c).
6.10 Election 10 Adiusl Tax Basis. Generall'artner may, but need not, cause the
~artnersbip to make an election or, with the consent of thc Cornmissioner of Intema1. Revenue,
revoke lIII)' such e1ecti01l previously made, under Section 754 of thc Code, to adjust the basis of
Partnership property UIlder Sections 734 and 743 of~e Code. Further, notwithstanding anything
in this Article 6 to the contrary, to the extent an adjustment to the adjusted tax basis of any
PBrtDcrship asset purSUllIlt to Code Section 734(b) or Code Section 743(b) is required. pursullDl:
to Trcasmy Regulation Section 1.704-1(b)(2)(i.v)(m), to be taken into account in determining
Capital Accounts, the amount of such ailjustment to the Capital Accounts shan be treated as an
item of gain (if the adjustment increases the basis of the asset). or loss (if the adjustment
decreases such basis) and such gain or loss shaU be specially allocated to each of Partners in a
IIllIDIlCl consistent with the manner in which each of their Capital Acco1I1lts are required to bc
adjusted pursuant to such section of the Treasury Regulations.
6.11 bisallowed Deduction. Notwithst"tu'ling anything to the contrary contained in
this Agreement, if a deduction is denied by the Internal Revenue Service with respect to any fees
, paid by the Partnership, including any fee paid to an Affiliate of any l'artner, on the basis that
such fee was a distribution to a partner by the Partnersbip,. the l'artncr whQ itself or' whose. .
.Affiliate received such fee sball be specially allocated. an 'amoun1 of gross income equal to the
ammmt of the disallowed deduction.
ARTICLE VII.
RIGHTS. L1A:BILITIESAND OBLIGATIONS OF PARTNERS
7.1 Liability of Limited Partners. Limited 1'l!rtners shall not be bound by, or .
personally liable for, the expenses, liabilities or obligations of the Partnership, except as
expressly BSsumed or expressly guaranteed or as provided under applicable law. Ex.cept as
provided in Article 3 hereof, no l'artner shall be obligated to make a coIJ1nbution of any kind or
am01Jll1 to the capital of the Parfucrship; provided, however, that Partners are obligated to return
a distrlbu,1ion from the P artnersbip to the extent required under applicable law or as otherwise set
forth in Section 3.4 hereof: .
7.2 Role of Limited Partners. Except as otherwisc provided in this AgreClIleut,
Limited Partners shall take no part in, and shall not interfere in any manner with, thc conduct or
control of the business of the P artnersbip and sha1l havc no right or authoriD' to act for or bind
the Partnersbip. 'I'!1e foregoing sball not restrict in any respect any action that may be ~en by a
Limited Partner in its capacity as an officer or director of General Partner, and no such action
ahs11 be deemed or coustrued BS the action of such officer or director in the capacity of a Limitcd
Partner.
7 j Ril!ht to Relv on: Authority of General}' artner. No person dealing with General
partner shall be required to determine its IWthority to make any undertaking on behalf of the
pm1nersbip, or to determine any fact or circumstllllce bearing upon the existence o~ils authority.
Every contract, agrecmcut, lease, promissory note, deed, mortgage or other instrument or
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document executed by General partner shall be conclusive evidence in favor of any and .:very
person relying thereon or claiming thereutlder that:
(a) At the thne of the execution or delivery thereot: the Parlnership was in full
force and effect;
(b) S~ instrument or dOcumCIlt was duly executed in accordance witb the
. terms and provisions oflhis Agreement and is binding upon the Partnership and all Partners; and
(c) . General Partner was duly authorlzedand empowered to execute and
dc1i'ver any and every such instrument or document for and on behalf of the partnership.
7.4 Rights sod Obligations of General Partner. In addition to the rights and
obliga1ions of General Partner as setforth in this Agreement, General Partner shall have those'
. rights and obligations conferred or imposed upon general partners under applicable law, to the
exteDI not inconsistent with the terms hereof.
7.5 Obligation to Act in Good Faith. Gen.eral Partner agrees to act at all times in
. good faith and in such manner as may be required to protect and promote the interests of Limited
Partners. .
7.6 . Indemnification of General Partner.
.
(a) General Partner sh2ll not be liable, responsible or acc01mtable in damages
or otherwise to.any ParlIler for (i) any act or omission perfooned or omitted within the scope of
the anfhorlty confCIrCd on General Partner by this Agreement and in the best interest of the
ParlnerSbip, except for acts which constitute bad faith, gross negligence or will;fu1 misconduct by
General Partner in carrying out its obligations hereunder; ell) General Partner's failure or refusal
to perform any acts, except those expressly :required by or pursuant to the t=.s of. this
Agreement; (iii) General partner's performance of, or omission to perform, any acts on advice of
. legal COlmscl, accountants, consultants or financial advisors to the Partnership; or (iv) the
negligence, dishonesty or bad faith of any agent, consultant, representative, .appraiser or broker
of the Partnership selected, engaged or retained by General Partner in good faith.
(b) In the event of any action, suit or other. legal proceedings, including
. arbitration, instituted or threatened against General Partner or to which General P annei' may be a
party arising out of partnership actions or actions of General Partner in its capacity as such,
.whether such suit, action or proceeding is brought by or on behalf of third parties or by or on
behalf of the Partnmbip or all or any of Partners, individually or as'8. class, or in a derivative or
reJIl"csentative capacity, General partner shall have the right (i) to obtain legal counsel and other
expert counsel at the CXpetlSl; of the Partnership and (ul to defend or participate in any st1ch suit,
action or proceeding at the .expense of the Partnership, and subject to the reimbursememt
obligation, set forth in subsection (c) below, it shall be reimbursed for, indemnified against and
saved hannless by the Partnership from and against any and allliahilitics and reasonable costs
and expenses inc:mred in connection therewith.
(c) In IlllY of the situations descnbed above, General partner shall be entitled
to periodic advances from the Partnership to pay reasonable attorneys' .fees and expenses as they
UnDDlnPaH., VI
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arc in=ed. In the evcul that Geuel...] Partner is ultimately det=ined not to be entitled to
indemnification, it sba1I immediately repay all advances, without interest, to the partnership.
7.7. Outside Activities. General partner shall devote such time and attention to the
:partnership businCSll as may be necessary for the proper perfonnance of its duties. Geo.eral
. Partner and/or its AfIiliatcs may. however, engage or hold interests in other business ventures of
~cry kind and description fOT its own account, whether or not such business ventures are in
direct or indirect competition with the business of the partnership and whether or. Dot the
Partnership also has an interest therein. Neither the Partnership nor any 'of Partners shall have
any rights by virtue of this Agreement in any such business ventures or to the income or profits
derived therefrom. .
ARTICLE VIII.
BOOKS OF ACCOUNT AND REPORTS
g.l Books a:nd Record&. General partner sba11 keep, or cause to be kept, Irt the
principal office of the Partnership (OT at such other office as General partner may designate) trod
and correct books of account, in which shall be entered fully and accurately each and every
transaction of the partnership. Each partner or its designated agent shall, at such PIlrtncr'S
"^pense, at all reasonable times have access te. and the right to make copies of, the bOl;lks rmd
records of the P artae.rship; The books shall be kept in accordanC\\ with accepted Federal income
tax accounting principles, consistently applied, and for a fiscal period which is the calend81: ye=
Financial statements sball be prepared as of the end of each Fiscal Year, and each Partner shall
be entitled to a copy of the statements or a S1JIDIDllIY thereof promptly after the close of e8.ch
. Fiscal Year. General partner shall cause to be prepared and distributed to each Partner,-,~the
close of each Fiscal Year, infonnation necessary to complete the Partner's Federal income tBx
retlIm. In addition, General partner shall prepare and maintain (x) monthly :financial st~t"",,,":ts
(consisting of, among other things as General partIler sba11 deem necessary, balance sheets,
iDcome ststements, general ledgers and job cost ledgers) and (y) comparisons of ~ 10
budgeted resclts and any revised projectionS in connection therewith. In the event that a
govemn;lental entity or my applicable legal rcqnirClnent sba11 require. an. audit of the
partnership's books andrecordS, such audit shall be performed at the partnership's expense.
8.2 :Bankin~. All funds of the Partnership sh~ be held in the name of the Partnemhip
iD one or more accounls. All withdrawals from any bank account or liquidation of any otbe:r
Partnership investment shall be made upon a check or order signed by General Partner, or an
agent designated by General P artn~, from time to time. AU such withdrawn funds shall be used
only for l'artnership PUrposes as provided in this Agreement and iD accordance with the ierms
hereof
ARTICLE IX.
ASSlGNAllu'ITY OF P ARTNERSm:P INTERESTS
9.1 bssil!1lrnent of Interest of a Partner. The parlnership Interest of a Partner may be
assigned, pledged or otherwise transferred only with the prior written consent of the Partners.
Tbe partnership shall not terminate upon the death or dissolution of any Limited Partner.
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9.2 Further Assi=ents Subiect to this A!rrecment. Upon the transfer of a
Partnership Interest to BIlY transferee, the 1ransferee and any sulisequcnt 1ransfcrs of such
Partnership Interest shall be subject to all of the teems and provisions of this Agreement.
9.3 Invalid Transfers. No transfer of a partnership Interest, or any part thereof, in
violation ofthia Article 9 shall be valid or,effective, and the Partnership shall not recognize the
same for the putpose of anocations or distributions of the aggregate income, gain, profit, loss,
deduction, credit or distribution of the Partnership. Except as otherwise provided in tbia
Agreemcnt, no Partner shall be entitled to withdraw from the Partnership or receive a retum of
capital or other distribution pursuant to withdt-awal prior to the t",",,;nafion oftbe Partnership
under Article 11 hereof. . .'
9.4 Riehts of Transferee. Unless admi:ttcd to the Parlnersmp as a Partner in
a=dancc with the provisions. of this Article.9, the transferee of a Parlnersmp Interest, or a part
lhcreo~ shall not be entitled to any .of the rights, powers or privileges of its predecessor in
intereSt, except as otherwise provided by law.
9.5 . Permitted Transferees. Notwithstanding anything to the contrary contained
herein, the parties agree that Ill\)' partner may freely transfer all or my part of their l'artnersbip
Interests to an Affiliate of such Partners.
9.6 MandatorY Withdrawal of Shefaor LP as a I.imited Partner. In the event tha11:he..
Shefaor Development Management Agreement is t...."'in.ted pursuant to Sections 9B. (i) through.
(v) lhcreo~ the parties mntually agree that Shefaor LP will be deemed to have withdrawn as a
l'ertner in the Partncrshlp pursuant to this Agreement and under the Act, effective as of the date
of the termination of !he Shefaor Development Management Agreement In such event, Shefaor
LP will be deemed on.the date of such withdrawal to have surrendered its entire Partnership
lDterests to the Partnership, and to have released the Partnership from any and all claims which
Shdaor LP might otherwise have or thereafter become entitled to assert against the Partnership
or any TllIl'llgon :Partners or their respective Affiliates llIlder the Apt and/or this Agreement..
Shefaor LP acknowledges that in the event of Shefaor LP' s withdrawal under the circumstances
setforth in this Section 9.6, the partnership will be likely to suffer substantial damages as a result
of Shefaor Developer Manager's failure to perform under the Shefaor Development Managemecl:
Agr~ent, and S.hefaor LP understands, acknowledges and agrees that (x) the partneirship shall
have the rigbl to proceed against Shefaor LP' s Affiliates for such damagcs as it suffers as a result
of such failure to perform, (y) all agreements entered into between the :PartnerShip andShefaor
11' and/or its Affiliates pursuant to Section 4.3 and otherwise shall immediately t.....mnRte. and
(z) any and all rigbts for Shefaor LP and/or its Affiliatcs to receive fees and/or . any other
payments under the agreements described in Section 4.3 and otherwise shall immediately cease.
Notwithstanding anything contained herein to the co~trary, any and all fees and/or other.
payments received through the data of such withdrawal or terIiJinalion, as the case may be, by
Shcfaor LP hereunder and by Shefaor LP's Affiliates under the agreements described in Section
4.3 and otherwise shan be deemed earned by such parties and retained by them.
9.7 Affiliate Alrreemeot Material Defaults. Except as set forth in Section 9.6 above
lIDC1 Section 9.8 and Section 9.9 below, in the event that any agreement with the Pllltnership and
a partner or its Affiliate as contemplated by Section 4.3 hereof or otherwise is terminated
pursuant to the tenDS. thereof as a r~lt of suc:b Partner's or its Affiliate's Material Defa:u1t
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thereunder (the "Breaching :Partner'') (x) the Breaching partner's Partnersbip :percentage shaU be
decreased by one-half (1f2), (y) all agreements entered into between the partnership and such
Breac:hing Partner (or its Affiliate) pursumt to Section 4.3 and otherwise shall immediately
. teoninate, and (z) any and all rights of the Breaching Partner's and/or its Af!i1iates to receive
fees and/or any other paymco.ts under the agreements descn'bed in Section 4.3 or otherwise shall
immediately cease. Notwithstanding anything contained herein to the contrary, any and an fees
zmd or other payments received through the date of tem1ination of such agreements descoocd in
the preceding sentence by the Breaching partner and/or itsA:fli]iatcs shall be deemed eamcd by
such parties and retained by them. . . .
9.8 MsndatoT'/ Withdrawal of Tarral!on Partners. In the event that the TlJIrllgon
Development Management Agreement is terminated pursuant to Sections 9B. (i) through (v) .
thereof, the parties mutually agree that Tarragon Partners will be deemed to have withdrawn as
Partners in !be Partnership pursuant to this Agreement and und.er the Act, effective as of the date
of the termination of the Tarragon Development Management Agreement. In such event,
Tarragon Partners will be deemed on the date of such withdrawal to have sun:endered their
respective entire Partnership Interests to the partnership, Mdto have released the Partnership
from any and all claims which Tarragon Partners might otherwise have or the:reaftor become
entitled to assert against the Partnership or Shefaor LP or their respective Affiliates 1lDder the AL;t
and/or this Agreement. Tarragon Partners acknowledge that in the event of Tarragon Partners'
withdrawal under the ciIcumstaIlces set forth in this Section 9.8, the Partnership will be likely to
suffer substsntial damages as a result of Tarragon Developer Manager's failure to perfomi undc:r..."
the Tarragon Development Management Agreement, and TlIITligon Partners understand.
aciknowledge and sgreethat (x) tbe Partnership shBll have the right to proceed against Tarragon
. PartnerS' Affiliates for rocb. damages as it suffers asa result of such failure to perfOIm, (y) all
agreements between tbe Partnersbip and Tarragon Partners and/or its Affiliates pursuant to
Section 4.3 IIlld otherwise shall immediately tenninate, and (z) any and all rights for Tarragon
Partners and/or its AfliIiates to receive fees and/or any other payments under the a.greements
described in Section 4.3 and otherwise shall immediately cease. Notwithstanding anything
contained herein to the contrary, any and all fees and/or other payments received tbrough the
dIlte of such withdrawal or terminations, as the case may be, by Tarragon Partners hereunder and
by Tarragon Partners' Affiliates under the agreements dcscn'bed in Section 4.3 and otherwise
shall be deemed ellIUedby such parties and retained by them.
9Jl MaterialDefaultofGeneral Partner. In the event that General partner shall caUlle
a Material Default to crist nuder!bis Agreement (x) Tarragon LP's Partnership Percentage $all
be reduced to 19.9%, (y) Shefaor ~P's partnership Percentage shall be increased to 80%, and (z)
all dccisions to be made under this Agreement shall require the agreemCD1 of all Partners,
ARTICLE X.
wrrHDRA WAL OF GENERAL PARTNER
10.1 Withdrawal. General partner shall be deemed to b!rve withdrawn from the
Partnership upon its voluntary withdrawal, which shall be effective only after giving a.t least
tlUrty(30) days' prior written notice to Limited Partners, or as otherwise provided under the Act.
10.2 Substitute General P arlner. Upon the withdrawal of General Partner in
accordance with the foregoing Section 10.1; a substitute Genera] partner may be elec:ted in
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accordance with the provisions of the Act within Dinety (90) days by Limited l'artners. If
Limited Partners fall to elect a substitute General Partner by such date, the P artnersmp shall be
dissolved ill accordance 'With Article 11 bereof.
10.3 Conversion of Withdrawinl! General Partner's interest Upon the withdrawal of
General Partner, t1lc interest of the withdrawing General partner shall be converted to tba! of B.
limited partner in the PBrtnership.
ARTICLE XI.
TERM:. DISSOLUTION AND 'WINDING UP
11.1 Term. The term of this Agreement shall commence as of the day and year first
written above and shB1l continue until tenn,nated pursuant to the provisions of this Agreement.
11.2 . DissoJvinJ! Events. kJ. event of dissolution of the P artnembip shall ocaor tIpOn
the earlier of the following (each, a ''Djssolving Event''):
(Il) December 31, 2104;
(b) Subject to Section 7.5 hereof, the decision of General Partner to dissolve
the Partnership;
(c) The failure of Limited Partners to appojnt Il snccessor General PartncJ!, .
pmwmtto Section 10.2 hereof; or
Cd) The sale by the Partnership of all, or substantially all, of the partnersbip's
assets. If the Partnership receives a pvrchase money opligatioD as part of the selling price, the
partnership sh811 continue until the obligation is collected.
11.3 W'mdinl! UP. Upon the occurrence ofa Dissolving Event (other than pursuant to
Subsccti!Jll 1l.2( d) hereof), General Partner shall proceed with dispatch and without any
mmecessary delay to sell or otherwise liquidate all property of the partnersbip. ~y act or ~ent
causing a dissolution of the partnership shall in DO way affect the validity of; or shorten the teml
of, my lease, mortgage, contract or other obligation entered into by or on behalf of thc
partnership. The full rights, powers and authorities of Partners shall continue so long as
appropriate and necessary to complete the process of winding up the business and affairs ofthc
Partnership.
11.4 Anolication of Assets in Windinl! UP. Upon dissolution of the Partnership, the
liquidation proceeds sba11 be applied in the manner and in the priority set forth in Section S.4
. hercoi As a condition to maldng lID)' liqvidating distributiolts to any Partner, all Partners (or a
:Iinaocially respODS1ble Affiliate) agree to execute and dcJiver a mutuaDy acceptable
indemnification agreement whereby such partner (or its Affiliate) agrees to indemnify tbe other
Partners for such ParlDer's pro-rata share (based upon their :respective Partnership Perc=tages)
err my claims, liabilities or costs incurred by. any other partner in connection with my
Partnership busmcss.
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115 Distnoution in Kind. If, on dissolution of the Partnership, General Partner shaU
determine that an immediate sale of part or all of the partnership's assets would be impracticable
or would cause undue loss to Partners, General partner may either defer for a. reasonable time the
liquidation of any assets except those necessary to satisfy lia.bilities of the Partnership (other than
liabilities to Partners) or distnoute to Partners, in lieu of cash, as tenants-in-common IlIll1 in
accordance with their respective Capital Account ~alances, undivided interests in such
Partnership assets as Geoeral Partner deems not suitable for liquidation. Any distributions in
. kind shall be subject to such conditions relating to the disposition and management thereof as
General partner deems reasoDllble and equitable.
11.6 Termination. The :partnership shall terininate when all of its property.sba11 have
been disposed of and the net proceeds and liquid assets, after satisfaction of liabilities to
:partnersllip creditors, sball have beeD dislnouted among each of Partners. AJJ soon as practicable
after the temrlnalion of the P artoership, a. final statement of its assets and liabilities sba11 be
prepared and fuIDished to each ofPartncrs.
ARTICLE XII.
MlSCELT ,ANEOUS
U.1 Firm Name ond GoodwIlL For pmposes of tbis Agreement, no value sball be
placed upon the name of the Partnership, upon the right to its use or upon any goodwill attached
thereto.
12.2 Notices. Any notice provided for by tbis Agreement and any other notice or
oo=unication wbich any party hereto. may wish to send to another party hereto shall be in
writing and shall be deemed given (a) on the day of hand delivery thereof if delivered by
personal delivery, (b) one (1) business day after sent by ovemigbt delivery with a. receipt thereof,
or (c) on the day sent by facsimile with a receipt thereof, addressed to each Partner as set forth on
Scb ednle "F" attached hereto and made a part hereof, or at such other address as any party
hereto shall designate to the partnership in writing.
12.3 Amendments. This Agreement may be amended only by an instrument in wrltiD,g
executed by all Partners.
12.4 Waiver of Action for Partition. SUbject to SevtiOri 115 hereof, if applicable, each
ofthc parties hereto irrevocably waives, during the t= 'ofthe Partnership and during the period
of its lig,uidationfollowin& any diBsolutioll, any right that it may have to maintain. any action for
partition with respect to any assets of the partnership.
12.5 Titles. The titles of the articles and sections herein have been insorted as a IIllLtter
of convenience for reference only, and shall not control or affect the meaning or construction of
any of the t= or provisions hereof. . . .
12.6 Com1Jlete Agreement. This Agreemellt contains the entire understanding between
the pmties and supersedes any prior unOerstBI1dings and agreements between them regarding the
within subject matter. 'There are no representations, agreements, arrangements or
understandings, oral or written, between or among the parties hereto relating to the subject matter
of this Agreement that are not fully expressed herein..
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12.7 Gaverninl! Law. This Agreement and all rights and obligations of the parties
herCUllder shall be governed by the laws of the State of Florida.
12.8 . Number and Gender. The use of the singular herein shall be deemed. to be or
include the plural (and vice-versa), and tlle use of any genders shall be deemed to. include all
genders, wherever appropriate.
12.9 llinmne Effect. This Agreement shall be binding upon, and inure to the benefit
o~ the parties hereto and their respective spouses, heirs, executors, administrators, personal and
legal representatives, successors and p=itted assigns.
. 12.10 Severability. Each article, section and paragraph hereof shall be considered
severable, IlIld if for any reason any article, section or paragraph is determined to be invalid
under corrent or future law, such invalidity shall not impair the operation of or otherwise affect
the valid portions of this Agrcemont .
12.11 Alrreement of Further Execution. At ilIly time Or times, upon the request of
General Partner, the other Partners agree to sign and swear to the certificate required by the Art.,
to sign and swear to any amendment to or cancellation of such certificate whenever such
amendment or CllIlcellation is required by law and to sign and swear to or acknowledge similar
certificates or affidavits or certificates of fictitious :IiIm name or the like (and any amendments or
CllIlCe1latiOOS thereof) required by the laws of the State of Florida, or any other jurisdiction in
which the partnership does, or proposes to do, business,.and callSe the filing of any. of the same
for record whenever such filing shall be required by la.w.
12.12 Countemarts. This Agreement IDBY be exeCuted in one or more counterparts and
by facsimile signatures and each of such count:eIparts shall, for all puxposes, be deemed to be an
origiDal, but a.U of such counterparts shall constitute one and the same instrument.
12.13 Jurisdiction and Venue. The parties acknowledge that a tDbstantial portion of
negotiations, anticipated pcrfoxmance and execution. of this Agreement OCCDIIed or shall occur in
Miami-Dade and Broward County, Florida, and that, therefore, without limiting the jurisdiction
or venue of any other federal or state courts, each of the parties irrevocably and unconditionally
(a) a"arecs that 8IIY suit, action or legal proceeding arising out of or relating to this Agreement
may be brought in the courts of record of the State of Florida, in Miami-Dade County, or the
district court of the United States, for the Southern District of Florida; (b) consents to the
jurisdiction of each such court in any such suit, action or proceeding; and (c) waives any
objection which it may have to the laying of veIIUe of any such suit, action or proceeding in any
of such courts. .'
12.14 Jnteruretation. Each Partner has hlid the opportunity to have this A~ecment
reviewed by counsel and be advised by counsel as to the rights and obligations of General
partner .and Limited Partners, and this Agreement shall not be constrocd or intCIp!:eted more
strictly against one partner than another on the grounds that the Agreement or fIIJY draft thereof
was prepared by a Partner or its counsel.
12.15 personal Liability. Except as otherwise pro:vided in this Agreement, in no
circumstances shall a shareholder, director, officer, partner, 'member, employee, representative,
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, attorney or agent oh Partner be personally liable for any of the obligations of such Partner under
tbis Agreement except to the extent provided in any s~aratc agreement now or hereafter
executed and delivered by any such party.
12.16 EstOlmel Certificate. At any time and from time to time upon not less than. twenty
(20) days' prior written notice from another Partner, each partner shaU execute, acknowledge
and send to such other Partner a statement in writing certifying that this Agreement is
UlllDodified and in :full force and effect (or if there have been modi.fications. that the AgreemClllt
is in full force and effect as modified and statiQ.8 the modifications) 8Ild stating whether or Dot as
. to s1l PartnCl-S any is in defuult of perfomWig any of the t=S contained in this Agreement, and .
if in default, specifying each such default (limited, with respect to the other :party's defaults, to
those defaults of whi ch the certifying partner has knowledge).
12.17 No Third PartY Ri!!hts. Except as otherwise specifically provided in this
Agreement, the provisions ef this AgrecmeIit are for the exclusive b=fit of the Partnership and
Parlners.and no other partY, (including, without limitation, any creditor of the partnersbip) shall
have any right or claim sgainstthe Partnership or my Parlner by reason of these provisions or be
CIlIiitlcd to enforce any pfthese provisions against the partnership or any Partner. :
12.18 No Waiver. . No waiver of any provision of this Agr"eement shall beeft'ective.
. unless it is in writing and signed by the party against whom it is asserted, and any such. written
waiver shall 0Dly be applicable to the specific instance to which it relates and shall not be.,
deemed to be a continuing or future waiver. .
12.19 Further Assurances. The parties hereto wiD execute and deliver such further
instruments and do Bllm further acts and things as roRY be reasonably required to cany out the
intent and purposes of this Agreement. .' .
. 12.20 PrevaiIinE Partv. Jf there arises a dispute in regard to this. Agreement, the
prevailing party shall be entitled to attomeys' fees and costs, including fees regarding mediation,
BIbitration and/or aD judicial actions and appeals. . '
12.21 Time of The Essence. Tune is of the essence with respect to this Agret""'","t
l2.22 WAIVER OF JURY TRIAL. BACH OF THE UNDERSIGNED HEREBY
KNOWINGLY, IRREVOCABLY, VOLUNTARlLY AND INTENTIONALLY WAJVBS ANY
RIGa! IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LlTlGATION
BASED ON TIllS AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY AGREEMENT CONfEMPLATED TO BE EXECUTED
IN CONNECTION WITH THIS AGREEMENT. OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMllNTS (WHETHER VERBAL OR WRl'ITEN) OR
ACTIONS OF IiliY PARTY HERETO.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Agreement, or caused same to be executed on it$ behalf, under seal, by a duly
aulborlzed representative, as of the date first set forth above.
GENERAL l'ARTNER:
A VENTURA TA:RRAOON GP .ILC, B. Florida
limited liability company
~y:
Tmagon Sollth Develop'ment COIp., a
Nevada corporation, its sole Managing
Member
LIMl'l'ED PARTNERS:
TARRAOON LP:
A VENTURA TA:RRAOON LP, LLC, B. Florida
limited liability company
By: . Tarragon South Development Corp., a
Nevada corporation, its sole Managing
Member
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SBEFAORU:
SHEFAORBH, L.L.c.. a Florida limitedliability
company
PlaniDvcst, Inc., aFlori
manager
by:
Name:
Title:
By:
By:
by:
Name:
Title:
corporation, co-
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SCHEDULE" A"
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LEGAL DESCRll"I'ION OF PROPERTY
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THE LAND
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EX.IiltlIT UN'
Tract D of ADMIRAL'S PORT SECTION ONE, according to the plat tbcrcof, recorded in Plat Book
I 13,.Page51, Public R:cozds o.fMiami-Dadc County, Florida
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LEGAL DESCRJI'TION OF PROPERTY
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THE LAND
TractD ofADh~'S PORT SECTION ONE. accmdingtolhc plat thmof, recorded inl'lat Book
113, PageS!, Public Itecoros ofMiami-Da& County, Florida
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BUDGET
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Department of 5t&te 6/5/2004 10:2B PAGE 2/3
RigbtFAX
8
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;:;a~a01:liIDla~1ID~im\:5tm1aaO"1ll00\'lQOIot1~O~iA'nl>;Q"n~OO\;l;mlaOOlai'i5SGT~OD\;Ga""i'iBS~
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~ \:5 I ce:rl:i.f:!' .tbe at.tached :l.s a t=e and correct cop:Y of the 1;ff:l.dav:l.t .and. i}&~
::>~ Ce.rtif:l.cate of Lindted Partnersh:l.p of sIlEFAO:R/~GON, .L!CD., a L:!.m:I.ted ~A
001 partnersbip. organ:l.zed under the laWS o.:f the state oj:. Flcr:l.d.a, f:l.le:d on iJD~
~ ~ugu.t 4, 2004, as shown by the recordscf th:l.s cfj:ice. ~Cl~
~ . ... .. ~
~pti! I further cert:l.:f:!, "the dooument waS electronically'. reoe:\.ved and f:l.led undar [all
i1~ :DX aud:l.t number B04000160319. !l!h:l.s certi:f:l.cate :l.s :l.ssued. :I.n acco:rdance ::;l'ilC
~ "''' -"= ".U. ,,="" ,,,_.. ... ..,-"""..",. "'. ..~ =- i!B"
im1 belOW. ::>.1
~~!l!be document nUlllber of "this l:!.ltdted partne:rsh:l.p :l.s ~0400000:l.~BO. ~a
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~ lluthentication CQde: B041\.0004BB10_080S04-A040.00001280-l/1 ~Q
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Given under my hand and the
Great Seal of tbe state of Florida, .
at !l!allahassee,. the Cap:l.tal, tl>:l.s the
F:I.:ftb day of August, 2004
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DeP&rtment of State B/5/2004 10:2B PAGE 3/3
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FLORIDA DEPARTMENT OF ST.ME
Glenda Eo EooCl
S....~O!stata
. August 5, 2004
. !
SBEnDR/UlUUl-GON, L~.
200 DS~ LAS OLAS BLVD., S~E. 1660.
FOll!!! LAUDEP.DALl!,"J!'L 33301
!rhe Affidavit "and cert.ificat.e of Limit.ed Part.nership of SIIZF=ll/~,
LTD. .were filed. on ~ugust 4, 2D04 and. assigned. document nuw,ar .
A0.4000001280. Please refar to thU nUI!lher whenever corresponding: with
this off!..oe.
,
!rhe certi.fication y01l reqoested. is enclosed.. 'fo:be Qfficia~, the
certi.ficat~on for a certiiied. co11Y mIlst :be attached. to the origina1.
document that was electronically. suhmitted. and. fUed. UDder FAX audit
number B04000160319.
A limited. partnership annual repcrt/uniform buSi.ness. report ",U1. be d.ue
this off:i.ce. between January 1 and Mal' 1 of the year follcndng the .caiendar
ye= of 'the fUe/effect:i.ve date. ~ Federal Employer Identilicat:i.on
(FEI)number w:i.l1. be requ:u:ed before this report can be filed. P1.ease
appll' NOl7 witb t.be Internal Revenue . Service by calling 1-800-829-3676 and
requesting SS-4. "
please be aware if the 1.imited partnership address cbanges, it. is the
reoponsU,Uity of the limited partnership t.o notify this office.
Sboul<i you .have any :further c;rnest:l.o"s concern:l.ng tMs mattar, please
contact this office at. thead.dresS .given belOW.
Jason lIe=iclt
Document Specialist
Registration/Foreign Qualification
Division of Corporations Letter Number: 804A0004BB10
Divisicn of Ca:rpcratians - P.O. :BOX 6327 "oTa11ahassee, Flciida 82814
321
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F8IA1JditNumber:~040001~0319 3 \
TIE'ICATE 011 r..iM;mm P.ARTNERS'Rll'
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SBJLFA.ORIT.~GON, LTD.,
a FlOritla.llmjtT partnership .
The uncle . goed getlf:tnl partner. d~g to foroi a limited pa:rtneJ:~ pmS1Jllnt to
FlOrida :Revised U . Limitad PWexamP tel as set forth i1i Part 1, Qla.pter 6'20 of the
Plorlda SmtlltCS. 3' States the following: . . .. . .. . .
1. ne of tile limited :p~\np is. SHEFAORlT.AlUW3ON, L~. (the
~p"). 'I
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i.. Tl>e addr B of the office of the
1660 I Port Lauder , :Florlcla 33301.
3. The and address of the a~ for serlice of pIocess on'the partnershi:p i.&
AVBNTIJll.b,. T.. N GP. lLC, zoq fast LaB Olas Boullovard. Suite 1660, 'PoIt
Lauderdale. 'FlOIidlr01. : ..-
, 4. The nnm" aDd busineSs addreSS o~: e'Ilch general partDatil; as follows:
. A VENTURA T . aON GP, LLC
200:BastLas Olas ~ TJ1evBId, Saite 1660 '. .
:Port Land~1 Florida 33301. .
. S. The Bi1iDg address of !he l'~ers1rl.p is 200 'East Las alas Baulevsrd, Suite
1660. FortLlItlIicrdi~JIlorida. 33301. J . .
6..'Ihe 1 at date upon wbicll theTerSb:ip will disS01~~ is D=bsr 31, 2104. .
The exe lion of this certificate bjY 'the 1lIld~gD.ed General partner C()DS1itntcs 1m
affirIJlalion l!IllIer th1 penalties .of pCljury tha~ t facts slated herein ate trI18.. . . .
TbiS c~cate of LiI1lited 1'~bip bllS been executed by the sole oc:ocn1 .
Partner ofSHBFAO AlUtAGON. LTD. ~i 4th day of August, ZOO4. . .
G:~ 'PARTNER: .
^ vfINTrJRA TAI:lRAGON' GP. lLC,
a~rldi limited liability complllIY
:8)':\ TAlUtAGON soum DEVBLOl'MSNT
. C01U'., cmpotation, its Manager
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rship iA 200 East Las mas B.ou1BVsrd. Snite
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DBPa.rtlDSnt of Sta.te B1812004 8: 08 PAGE SlS
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FLQP.IDA DEPARTMENT OF sTA.TE
Glenda E- moa
~ o!.Stata
August 9, 2004"
SRE!i'AOP./nroaGON, LLLl?
200 EAS~ LAS-aLAS BLVD., S~E. 1660
FOR'l 1JlDDERDlILE, :FIr 3330:1.
i\.e: Dooument Number: A04000001280
~he statement.of QUa:l.:l.fl.oa.tl.on for SBE:i'AORJ~ON, LLLP, ",as 'f:l.~ed on
August ~, 20~4.
~e oert:l.f:l.eat:l.on you requested is enclosed. ~l.s -document waS
e:l:ecuon.:l.c;a.l+Y reae:l.ved .and f:l.led 'lIDde:r FAX audit number B04000161246.
Should you have any questions regardin9' t.lU.s filin9' I please ",ontaot: thi.s
offiae at caSO) 245-6051.
S:l.ncerely,
Mar sha fboma.s
Document spec:l.alist
Partnership Section
D:l.vis:l.OQ of co~orations
Letter Number: 004A00049225
Division of Corporations . P,O. BOX 6327 _Tallahassee, Flonda 32814
323
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&1g~~~tI~u~~~rW~lJ"'~~mJ,r:;~~/Jl~"''''-~~~~J:i~~f-!.w~~)!I~~~~Qr;
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ikl~ I certifY the attached is a true and correct copy of the statement cif i1D~ .
~ Qualification of. SREFAOR!T1I1U'.AGON, LLLP, filed en August 4, 2004, as sho"\,n~QP
m~ by Ue . records of this oU.ice.. . . .. . m~l..
ilIli! ' _ """,,u, "" ,=_, .,. """.'.00'.'''' ~.,.ed =d fiM ="",J1:
~OII!'AX audit number B04000161246. This certifioate is issued in aocordanoe ml
UO "ith sect:l.on 15.16, J'lori.da statutes, and authenticated by the- code noted '::\1
!;II :below. _ . - ~{i:
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~In~ The document number of this entity is A04000001280. ~
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~rn Authentication Code:. OO.4A0004922S_0B0904-A04000001280-111 iJdii
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Given under my hand and the .
-Great Seal of the state .of Florida,
i"'" at Tallahassee, the Capital, th:l.s the iB]~9J.!!.1
~ ~ N:l.nth day.ofAUgust, 2004 ~
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11111111111I111I11111111I111111111111111I1111
CFN 2004R0733096
OR Bk 22595 PIS ~02~ - ~027; (~P!s)
RECORDED 08/20/200~ 1'151100
DEED DOC T~X 2~6,OOO.60
SURTAX 18~.500.'5
HARVEY RUVIN, CLERK OF COURT
MIAMI-DADE COUNTY, FLORIDA
.
THIS DOCUMENT WAS PREPARED
BY AND AFfER RECORDING IS TO
BE RETURNED TO:
ARVIN J. JAFFE, P.A.
BROAD AND CASSEL
7777 GLADES ROAD
SUITE 300
BOCA RATON, FLORIDA 33434
15117)11"\
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
THAT, ADMIRAL'S PORT ASSOCIATES LIMITED PARTNERSHIP, a
Florida limited partnership, whose mailing address is c/o ASB Capital Management, Inc.,
1919 M Street, NW, Suite 310, Washington, D.C. 20036 ("Grantor"), for and in
consideration of the sum ofTen and No/I 00 Dollars ($10.00) and other good and valuable
consideration in hand paid to the undersigned by SHEFAORffARRAGON, LLLP, a
Florida limited liability limited partnership ("Grantee''), whose maiiing address is 200 East
Las Olas Boulevard, Suite 1660, Fort Lauderdale, Florida 33301, the receipt and
sufficiency of such consideration being hereby acknowledged, has GRANTED,
BARGAINED, SOLD, AND CONVEYED, and by these presents does hereby GRANT,
BARGAIN, SELL, ALIEN, CONVEY and CONFIRM unto Grantee, its successors and
assigns, thaI certain real property being more particularly described in Schedule 1 attached
hereto and made a part hereof for all purposes (the "Property''), subject, however, to taxes
for 2004 and subsequent years, not yet due and payable, and to easements, covenants,
conditions, and restrictions of record set forth' on Schedule 2 attached hereto and made a
part hereof (the "Permitted Encumbrances''); provided, however, that this reference shall
not operate to reimpose any of the same.
TO HAVE AND TO HOLD the Property, together with all and singular the rights,
tenements, heTedilamen~ and appurtenances thereto in any wise belonging, unto Grantee,
its successors and assigns.
Grantor hereby agrees to WARRANT AND FOREVER DEFEND all and singular
the Property unto Grantee, its successors and assigns, against every person whomsoever
lawfully claimingby, through or under Grantor but not otherwise.
-WASHI:4601707.vl
8OC1\REALIiSl\1431n.3
3325310004 1I111XlO4 1:36 PM
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325
Book22595/Page4024
CFN#20040733096
Page 1 of 4
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-.. EXECUTED this l:!. day of August, 2004.
WITNESSES:
SELLER:
ADMIRAL'S PORT ASSOCIATES
LIMITED PARTNERSIDP, a Florida
limited partnership
1c-LJ. .
Prtlt Name: a-.....lU,4.. a...,~". JY.
~7$hi'~~~
By its sole general partner,
ASB Aventura Holding Company, L.L.C., a
Florida limited liability c mpany
'--
By:
Robert B. Bellin er
Manager
District of Columbia)ss:
.~
. I, MAI<.I.I. I/It/rD t-iA "F. ouG , the undersigned notary public in and for the
jurisdiction aforesaid, do certify that Robert B. Bellinger, who is named as Manager for
ASB Aventura Holding Company, L.L.C., a Florida limited liability company, which is
the sole member of ADMIRAL'S PORT ASSOCIATES LIMITED PARTNERSHIP, a
Florida limited partnership, the named grantor in the foregoing and attached instrument,
dated as of August ~ 2004, personally appeared before me in the District of Columbia,
and, said person being personally well known to me as the person named as Manager in
said instrument and acknowledged said instrument to be the act and deed of ADMIRAL'S
PORT ASSOCIATES L1MITED PARTNERSHIP, a Florida limited partnership, and that
he delivered the same as such before me in the jurisdiction aforesaid.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
~
-2-
-WABHI:4601707.v)
326
Book22595/Page4025
CFN#20040733096
Page 2 of 4
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Schedule 1
Property
Tract D, ADMIRAL'S PORT SECTION ONE, according to the Plat thereof; as recorded
in Plat Book 113, page 51, in the public records of Miami-Dade County, Florida.
-WASHI,4601707.vl
327
Book22595/Page4026 CFN#20040733096
Page 3 of 4
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OR BK
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22595
PAGE
PG
402'7
Schedule :z
Permitted Encumbrances
A.
Restrictions, dedications and easements as contained 00 the pIat of Admiral's Port Sectioo One,
recorded in Plat Book 113, Page 5 I, Public Records of Miami.Dade County. Florids.
B.
Terms, conditions and provisions of that certain Agreement by and between Gerald Enterprises, Inc.. et
ai, and Dade County, Florida, recorded in Official Records Book 6138, Page 52, Public Records of
Miami-Dade County, Florids.
C.
Terms, conditions, and provisions of that certain Agreement by and between Saul 1. Morgan, et ai, and
Dade County, Florida, recorded in Official Records Book 6325, Page 546, Public Records of Miami-
Dad. County, Florida.
Tenns. conditions and provisions of Restriction and Covenant recorded in Official Recorda Book.
10549, Page 2467, Public Records of Miami-Dade County, Florida.
Terms, cooditions and provisions of Unity of Title recorded in Official Records Book 10548, Page 443,
Public Records of Miami-Dade County, Florida.
Easement in favor of Florida Power & Light Company set forth in instrument recorded in Official
Records Book 14376, Page 665, Public Records of Miami-Dade County, Florida.
Terms, conditions, and provisions of Agreement for ConstnJction of Sanitary Sewage Facilitiea and for
Disposal of Sanitary Sewage, recorded in Official Records Book 14514, Page 3529, Public Records of
Miami-Dade County, Florida.
Easement in favor of Southern Bell Telephone and Telegraph Company set forth in instrument recorded
in Official Records Book 15029, Page 206, Public Records of Miami-Dade County, Florida.
Easement in favor of Southern Bell Telephone and Telegraph Company set forth in instrument recorded
in Official Records Book 15029, Page 210, Public Records of Miami-Dade County, Florida.
Easemenl in favor of Southern Bell Telephone and Telegraph Company set forth in instrumenl recorded
in Official Records Book 15029, Page 214, Public Records of Miami-Dade County, Florida.
Easement in favor ofSouthcrn Bell Telepbone and Telegraph Company sel forth in instnJment recorded
in Official Records Book 15029, Page 218, Public Records of Miami-Dade County, Florida.
Easement in favor of Miami-Dade County, Florida, set forth in instrument recorded in Ollicial Records .
Book 15069, Page 105, Public Records of Miami-Dade County, Florida.
Easement in favor of City of North Miami Beach Sol forth in instrument recorded in Official Records
Book 15386, Page 1135, Public Records of Miami-Dade County, Florida.
Easement in favor of Southern Bell Telephone and Telegraph Company set forth in instrument recorded
in Official Records Book 15029, Page 202, Public Records of Miami-Dade County, Florida.
-WASHI:4601707.vl
328
Book22595/Page4027
CFN#20040733096
Page 4 of 4
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I 11I1II 1111I lUll III II IJ/II IlIIl IJIlJ 11I1 1111
CFN 200~R0733100
OR.Bk 22595 P's.4035 - 4076; (42"1>
RECORDED OB/20/200~ 1~:51'00
nTG DOC TAX 140,000.00
IHTAHG TAX BO.OOO.OO
. HARVEY RUVIH, CLERK OF COURT
. MIAMI-DADE COUNTY, FLORIDA
Prepared by and after recording return to:
JOHN C. PHELAN
Piper Rudnick LLP
1251 Avenue of the Americas
New York, New York 10020
<t/~~ld~
Dare: August 19,2004
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
FROM
SHEFAOR/TARRAGON, LLLP,
a Florida limited liability limited partnership
Address of Mortgagor.
c/o Tarragon South Development Corp.
200 East Las Olas Boulevard, Suite 1660
Fort Lauderdale, Florida 33301
TO
EUROHYPO AG, NEW YORK BRANCH,
as Administrative Agent for the Lenders (as hereinafter defined)
Address of Mortgagee:
1114 Avenue of the Americas, 29th Floor
New York, New York 10036
Mortgage Amount: $40,000,000.00 _
Location of Premises:
Lincoln Pointe Apartments,
17900N. E. 31" Court
Aventura, Miami-Dade County, Florida
FLORIDA DOCUMENTARY STAMP TAXES IN THE AMOUNT OF SI40,Ooo AND NON.
RECURRING INTANGIBLE PERSONAL PROPERTY TAXES IN THE AMOUNT OF S80.0OO ARE
BEING PAID UPON RECORDATION HEREOF.
329
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Book22595/PanA4m5 r.FN#?00407~~ 100
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING (this "Mortl!al!e") is dated as of
August 19, 2004, and made by SHEFAORffARRAGON LLLP, a Florida limited
liability limited. partnership ("Mortl!al!or") having an office at c/o Tarragon South
Development Corp., 200 East Las Olas Boulevard, Suite 1660, Fort Lauderdale, Florida
33301, Attention: James Cauley,. to and in favor of EUROHYPO AG, NEW YORK
BRANCH, as Administrative Agent for the Lenders, as hereinafter defined (together
with its successors in such capacity "Mortl!al!ee"), with an office at 1114 Avenue of the
Americas, 29th Floor, New York, New York 10036,
W!INE~HIH:
WHEREAS, Mortgagor is the owner of the premises described on Exhibit A
which is annexed hereto and made a part hereof, as of the date of the execution and
delivery of this Mortgage. Mortgagor will borrow up to the Mortgage Amount (as
hereinafter defined) from the Lenders pursuant to the Loan Agreement identified below,
Mortgagor has executed and delivered its note(s), each dated as of the date hereof, to the
Lenders under the Loan Agreement in the aggregate amount of $40,000,000.00 (the
"Mortl!al!e Amount"), obligating Mortgagor to pay the Indebtedness (as hereinafter
defined) or so much thereof as may be advanced from time to time in accordance with the
Loan Agreement. Said notes, as the same may hereafter be amended, modified,
extended, severed, assigned, renewed, replaced or restated, and including any substitute
or replacement notes executed pursuant to Sections 3.05 and l.L.l! of the Loan
Agreement, are hereinafter referred to individually and collectively as the "Note" and is
and are made a part hereof by this reference.
WHEREAS, this Mortgage is intended to constitute: (i) a mortgage deed under
the law of the State of Florida, (ii) a security agreement, financing statement and fixture
filing under the Code (as hereinafter defmed), and (Hi) a notice of assigrunent of rents or
profits under the law of the State of Florida. This Mortgage, in conjunction with the
Assignment of Leases and Rents dated as of the date hereof and given by Mortgagor in
favor of Mortgagee, is also intended to operate and be construed as an absolute present
assignment of the rents, issues and profits of the Mortgaged Property, the Mortgagor
hereby agreeing that subject to the terms hereof the Mortgagee is entitled to receive the
rents, issues and profits of the Mortgaged Property prior to an Event of Default and
without entering upon or taking possession of the Mortgaged Property.
NOW, THEREFORE, in consideration of the foregoing and for TEN AND
NO/IOO Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor and Mortgagee agree as
follows:
330
Book22595/Paae4036
CFN#20040733100
P~nI'! ? nf d?
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CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION
Mortgagor and Mortgagee agree that, unless the context otherwise specifies or
requires, the following terms shall have the meanings herein specified. .
"Books" -- Means, collectively, the books, records, files (including personnel
files) and any customer, mailing or "other" lists which are maintained solely in
connection with the ownership, operation, marketing or promotion of the Premises (and
not any other property), including all computer data bases containing any such
information, exclusive of any personal income tax records of any Person (exclusive of
privileged or confidential information).
"Code" -- Means the Uniform Commercial Code as adopted and applicable in the
State of Florida.
"Eauioment Leases" - Means, collectively, any leases of equipment, furnishings
or other personal property located in the Premises and used in connection with the
operation ofthe Premises together with any rights to the property covered thereby.
"Fixtures" -- Means, collectively, all fixtures attached to and forming a part of the
Premises, including, but not limited to, all heating, lighting, plumbing, drainage,
electrical, air conditioning, and other mechanical fixtures and equipment and systems; all
elevators, escalators, and related motors and boiler pressure systems and equipment; all
ventilating equipment and all incinerating and disposal equipment
"Hazardous Materials" - Means any pollutant, effluents, emISSIOns,
contaminants, toxic or hazardous wastes, existing and future asbestos-containing
materials, including, without limitation, asbestos fibers and friable. asbestos,
polychlorinated biphenyls and any petroleum or hydrocarbon based products or
derivatives and any other hazardous or toxic materials, wastes and substances which are
defined, determined or identified as such in any Laws (as defined in the Loan
Agreement), as any of those terms are defined from time to time hi or for the purposes of
any relevant Environmental Law, rule, regulation, code, permit, order, notice, demand
ietter, or other binding determination having force oflaw,
"Imorovements" - Means all of the Mortgagor's right, title and interest in and to
all structures or improvements, and replacements thereof, to be erected or now or
hereafter forming a part of the Premises, including all Fixtures of every kind and nature
whatsoever forming part of said structures or buildings now or hereafter affixed to the
Premises, including all improvements, structures and improvements of every kind and
description now or hereafter erected or placed thereon and the parking areas; to the extent
that all of the foregoing is owned by Mortgagor, whether now or hereafter placed thereon,
being hereby declared to be real property and are a part of the "Improvements".
-N~WYI:3844816.v9
331
2
Book22595/Paae4037
CFN#20040733100
P~np. ~ nf.:1?
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"Intanl!ibles" - Means all goodwill of the Premises and any tradenames,
trademarks, service marks and logos used in cOMection with the operation of the
Premises which are now or hereafter owned by the Mortgagor.
"Indebtedness" .- Means the principal, interest, fees, late charges and any other
sums payable on, or by reason of the provisions of, the Loan Documents, or payable
under or by reason of any extension, renewal or modification of the Note; any increase or
addition thereto; and all other amounts constituting Obligations as defined in the Loan
Agreement.
"Lease" or "Leases" - Means any lease or leases of all or any portion of the
Premises made by Mortgagor as landlord.
"Lenders" -- Means, collectively, each of the lending institutions which become
"Lenders" pursuant to the Loan Agreement, together with their successors and pennitted
assigns in accordance with the tenns of the Loan Agreement
"Loan" .- Means the aggregate of Advances made by the Lenders to Mortgagor
pursuant to the Loan Agreement and secured hereby.
"Loan Allreement" -- Means that certain Loan Agreement, dated of even date
herewith, among Mortgagor, as borrower, the Lenders, as lender and Mortgagee, as
administrative agent, as the same may hereafter be amended, modified or supplemented
from time to time.
"Miscellaneous Assets" - Means any reserves, bank accounts, accounts
receivable, computer systems and programs, operating systems, technical infonnalion,
claims of any type (including insurance claims), refunds, rebates, utility and other
deposits, to the extent such items are owned by Mortgagor and pertaining to Mortgagor's
ownership, use or operation of the Mortgaged Property.
"Mortl!al!ed Prooertv" - Has the meaning ascribed to such term in the Granting
Clauses hereafter.
"Note" -. Has the meaning ascribed to such term in the Recitals to this Mortgage.
"Personal Prooerty" .. Means all tangible and intangible personal property of
every kind and description (excluding, however, all furnishings, fixtures, equipment and
personal property owned or leased by lessees of the Premises), which is owned by
Mortgagor and now or at any time hereafter attached to, installed or erected on or placed
or situated in or upon, fonning a part of, appurtenant to, used or useful in the construction
or operation of or in connection with, or arising from the use or operation of or in
connection with, or arising from the use or enjoyment of all or any portion of, or from
any Lease or agreement pertaining to, the Premises, and whether located on or off the
Premises, including, without limitation: (i) all water rights appurtenant to the Premises
together with all pumping plants, pipes, flumes and ditches, all rights to the use of water
as well as all rights in ditches for irrigation of the Premises, all water stock relating to the
Premises, shares of stock or other evidence of ownership of any part of the Premises that
~NEWYI:31l44816"~
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332
Book22595/Paae4038
CFN#200407331 nn
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is owned by Mortgagor in common with others, and all documents of membership in any
owners' or members' association or similar group having responsibility for managing or
operating any part of the Premises; (ii) all plans and specifications prepared for
Construction Work and all studies, data and drawings related thereto; and also ali
contracts and agreements of Mortgagor relating to. the aforesaid plans and specifications
or to the aforesaid studies, data and drawings, or to the Construction Work; (iii) tangible
personal property of any kind attached to or located upon and used in connection with the
ownership, maintenance, use or operation of the Premises as afthe date hereof, including,
but not limited to, all furniture, fixtures, construction materials, equipment, signs; all
copy machines, computers, software, facsimile machines and other affice equipment; all
shelving and partitions; all vans, automobiles and other motor vehicles; all carpets,
drapes, beds, furniture, furnishings, televisions, telephones and similar property; all
staves, ovens, freezers, refrigerators, dishwashers, disposals, kitchen equipment and
utensils, tables, chairs, plates and other dishes, glasses, silverware, serving pieces and
other restaurant and bar equipment, apparatuses and utensils; all audiovisual equipment,
banquet equipment and laundry equipment; all artwork and decorations; the foregoing
being exclusive of (a) any personal property leased under the Equipment Leases, and (b)
items belonging to tenants under Leases, if any; (iv) all merchandise, supplies, inventory
and other items used for the operation and maintenance of recreational areas located
within or relating to the Premises, including, without limitation, office supplies and
stationery, advertising and promotional materials, cleaning and maintenance supplies,
paper goods, all machinery, fixtures; furniture and furnishings, decorations and art work,
equipment, supplies, restaurant equipment and supplies; (v) all goods, accounts, general
intangibles, documents, instruments and chattel paper, and all other personal property of
every kind and description, in each case located on or related to the Premises; (vi) all .
substitutions and replacements af, and accessions and additions to, any of the foregoing;
(vii) all sales contracts and agreements, all deposits received from purchasers under sales
contracts and agreements (to the extent permitted by law), deposit receipts, escrow
agreements and other ancillary documents and agreements entered into. with respect to the
sale to any purchasers of any part of the Premises and/or any Unsold Residential Unit,
together with all deposits and other proceeds of the sale thereof (in the case of clauses
(v), (vi) and (vii), as may all subject to the terms of the Loan Documents); (viii) any other
Mortgaged Property which may be construed to be personal property; and (ix) all
proceeds of any of the foregoing, including, without limitatian, proceeds of any voluntary
or involuntary disposition or claim respecting any part thereof (pursuant to judgment,
condemnation award or otherwise) and all goods, documents, general intangibles, chattel
paper and accounts, wherever located, acquired with cash proceeds of any of the
foregoing or praceeds thereof.
"Premises" -- Means the premises described in EXHIBIT A, including all of the
present and future easements, rights-af-way, rights, privileges and appurtenances
(including air, development or utility rights) thereunto belonging or in anywise
appertaining, and all of the estate, right, title, interest, claim or demand whatsoever of
Mortgagor therein and in the streets and ways adjacent thereto either in law or in equity,
in possession or expectancy, now or hereafter acquired, and as used herein shall. unless
the context otherwise requires, be deemed to include the Improvements,
-NEWY I :lS448 i6. v9
4
333
Book22595/Paae4039
CFN#?nn4n7~~ 1 nn
D<>nQ I:; ". A"
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"Recorder's Office" - Means the Office of the Clerk of Court for Miami-Dade
County, Florida.
"Rents" -- Has the meaning ascribed to such term in the Granting Clauses.
"Service Contracts" -- Means the service, maintenance and other agreements in
connection wi~ the operation and maintenance of the Premises.
"Utilities" - Means all rights to water service, sanitary and storm sewer service,
electrical service, gas service, telephone service and any other utilities benefiting the
Premises and all deposits made with or other security given to utility companies by
Mortgagor with respect to the Premises and/or Improvements, and all advance payments
made by Mortgagor with respect thereto and all claims or demands relating to such
deposits and/or other security.
"Warranties" .- Means all warranties, guaranties and indemnities with respect to
the Premises that are. for the benefit of the Mortgagor.
All terms of this Mortgage which are not defined above shall have the meaning
set forth elsewhere in this Mortgage. Capitalized terms not otherwise defmed herein shall
have the respective meanings ascribed thereto in the Loan Agreement.
Except as expressly indicated otherwise, when used in this Mortgage (i) "or" is
not exclusive, (ii) "hereunder", "herein", "hereof" and the like refer to this Mortgage as a
whole, (iii) "Article", "Section" and "Schedule" refer to Articles, Sections and Schedules
of this Mortgage, (iv) terms defined in the singular have a correlative meaning when used
in the plural and vice versa, (v) a reference to a law or statute includes any amendment or
modi fication to, or replacement of, such law or statute and (vi) a reference to an
agreement, instrument or document means such agreement, instrument or document as
the same may be amended, modified or supplemented from time to time in accordance
with its terms and as permitted by the Loan Agreement and other documents executed or
delivered to Mortgagee or the Lenders in connection with the Loan. The cover page and
all Schedules hereto are incorporated herein and made a part hereof. Any table of
contents and the headings and captions herein are for convenience only and shall not
affect the interpretation or construction hereof.
GRANTING CLAUSES
Mortgagor, in consideration of the premises and in order to secure the payment
and performance of the Obligations (including the payment of any sums advanced by
Mortgagee or the Lenders to complete the Improvements to the extent the aggregate of
such sums and any other sums expended pursuant hereto exceed the sum of the Mortgage
Amount), hereby gives, grants, bargains, warrants, remises, releases, conveys, assigns,
transfers, mortgages, hypothecates, deposits, pledges, sets over and confirms unto
Mortgagee WlTHMORTGAGE COVENANTS (and grants to Mortgagee, as secured
party, a security interest in) any and all of Mortgagor's estate, right, title and interest in,
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to and under any and all of the following described property (the "M0l1l!al!ed Prooertv")
whether now owned, held or existing or hereafter acquired:
(i) the Premises;
(ii) the Improvements;
(Hi) the Personal Property;
(iv) the Premises Documents;
(v) Books;
(vi) Equipment Leases;
(vii) . Fixtures;
(viii) Intangibles;
(ix) Miscellaneous Assets
(x) Service Contracts;
(xi) Utilities;
~ (xii) Parking Rights;
(xiii) Warranties;
(xiv) all rents, royalties, issues, profits, revenue, income, recoveries,
reimbursements and other benefits of the Mortgaged Property (hereinafter, the
. "Rents") and all Leases of the Mortgaged Property or portions thereof now or
hereafter entered into by Mortgagor, and to the extent any portion of the Premises
and/or Improvements are leased, all right, tide and interest of Mortgagor
thereunder), including, without limitation, cash or securities deposited thereunder
to secure performance by the lessees of their obligations thereunder, whether such
cash or securities are to be held until the expiration of the terms of such Leases or
applied to one or more of the installments of rent coming due immediately prior to
the expiration of such terms, and including any guaranties of such Leases and any
lease cancellation, surrender or termination fees in respect thereof, together with
any and all tenant and/or furniture, fixture and equipment property insurance
proceeds, to the extent available under such leases, all subject, however, to the
provisions of Section 3.01;
(xv) all deposits made with or other security given to utility companies
by Mortgagor with respect to the Premises and/or Improvements, and all advance
1
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payments of insurance premiums made by Mortgagor with respect thereto and all
claims or demands relating to such deposits, other security and such insurance;
(xvi) all damages, royalties and revenue of every kind, nature and
description whatsoever that Mortgagor may be entitled to receive, either before or
after any default hereunder, from any person or entity owning or having or
hereafter acquiring a right to the oil, gas or mineral rights and reservations of the
Premises, with the right in Mortgagee to receive and receipt therefor and apply the
same to amounts secured hereby, and Mortgagee may demand, sue for and
recover any such payments but shall not be required to do so;
(xvii) all development work product prepared in connection with the
Premises, including, without limitation, all surveys, engineering, drainage, traffic
and soil tests; all water, sewer, gas, electrical and telephone approvals and taps;
all drawings, plans and specifications; and all subdivision, zoning and platting
materials;
(xviii) all of Mortgagor's interest in and to all proceeds and claims arising
on accoWlt of any damage to or taking of the Premises or the Improvements or
. any part thereof, and all causes of action and recoveries for any loss or diminution
in the value of the Premises or the Improvements (in connection with such
damage) or taking, subject, however, to the right of Mortgagor to such proceeds
and claims as provided for in this Mortgage;
(xix) all contracts or agreements (including, without limitation, contracts
with architects or engineers, construction contracts and contracts for the
management, maintenance, leasing or sale of the Premises or Improvements or
portions thereof), contract rights, logos, trademarks, tradenames, copyrights and
other general intangibles used or useful in connection with the ownership,
construction, use, operation or occupancy of the Premises or any part thereof;
(xx) to the extent permitted by law, all licenses (including. but not
limited to, any operating licenses or similar licenses), permits, governmental
approvals, authorities, certificates of occupancy or other certificates required or
used in connection with the ownership, operation, or maintenance of the
Improvements, all governmental permits relating to construction, all names WIder
or by which the Premises or the Improvements may at any time be operated or
known, and all rights to carry on business WIder any such names or any variant
thereof, and similar documents issued by any federal, state, or local government
authority in the name of Mortgagor, any and all reciprocal easement agreements
or declarations of covenants, conditions and restrictions which may benefit or
burden the Mortgaged Property;
(xxi) all bank accounts, and monies therein, of Mortgagor relating to the
Premises, including, without limitation, any accoWlts relating to real estate taxes,
(subject to any rights therein specifically reserved to Mortgagor pursuant to the
terms of the Loan Documents);
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(xxii) all escrow and other accounts held or established by Mqrtgagee
(whether on Mortgagee's books or in any bank or financial institution) pursuant to
any Loan Document (subject to any rights of Mortgagor prior to an Event of
Default specifically provided for in any Loan Document);
(xxiii) any and all contracts of sale with respect to Residential Units by
and between Debtor and purchasers of Residential Units, whether now existing or
hereafter arising; and any and all. down payments, earnest money deposits and/or
release price payments provided by such purchasers under such contracts and
placed in escrow, pursuant to an escrow agreement between Mortgagor and said
escrow agent, together with all of Mortgagor's right, title and interest in, to and
under such escrow agreement, subject however to the right of Mortgagor to
receive and use the same in accordance with the terms of the this Mortgage and
any of the Loan Documents;
(xxiv) any and all contracts and agreements with architects,
subcontractors, engineers, management agents, leasing agents, sales agents,
service and maintenance agents, contractors and. other third parties, including,
without limitation, the Management Agreement, dated the date hereof, by and
between Mortgagor and Tarragon Management, Inc., whether now existing or
hereafter arising, relating to the management, operation, construction, leasing,
sale, maintenance and repair of the Collateral;
(xxv) any and all insurance proceeds Mortgagor may be entitled to
under those insurance policies required hereunder and under the Loan Agreement,
including proceeds from property coverage relating to rents and tenants and
furniture, fixtures and equipment, subject however to those rights of Mortgagor to
receive and use the same as specifically provided for in this Mortgage and any of
the Loan Documents;
(xxvi) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing into cash or liquidated claims, including, without limitation,
Mortgagor's interest in and to proceeds of insurance and condemnation awards
and all rights of Mortgagor to refunds of real estate taxes and assessments,
subject, however, to those rights of Mortgagor to receive and use the same as
specifically provided for in this Mortgage and any of the Loan Documents; and
(xxvii) all other security and collateral of any nature whatsoever, now or
hereafter given by Mortgagor, to secure the payment and perfonnance of the
Indebtedness.
TO HAVE AND TO HOLD unto Mortgagee, its successors and assigns forever.
ARTICLE I
COVENANTS OF MORTGAGOR
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Mortgagor covenants and agrees as follows:
Section 1.01 Warrantv of Title: Power and Authoritv. Mortgagor covenants
and warrants that it has a good and marketable title to an indefeasible fee estate in the
Premises subject to no lien, charge or encumbrance except such as are listed as
exceptions to title in the title policy insuring this Mortgage or which are Permitted Liens
under the Loan Agreement; that it owns or leases the Personal Property, all Leases and
the Rents, in respect of the Mortgaged Property (if any) and all other personal property
encumbered hereby free and clear of liens and claims (except for the Permitted Liens);
and that this Mortgage is and will remain a valid and enforceable first priority lien on the
Mortgaged Property subject only to the exceptions referred to above. Mortgagor has full
power and lawful authority to mortgage the Mortgaged Property in the manner and form
herein done or intended hereafter to be done. Mortgagor will preserve such title arid will
forever warrant and defend the same to Mortgagee and will forever warrant and defend
the validity and priority of this Mortgage against the claims of all persons and parties
whomsoever.
Section 1.02 Flood Hazard Area. Mortgagor represents that neither the
Premises nor any part thereof is located in an area identified by the Secretary of the
United States Department of Housing and Urban Development or by any appiicable
federal agency as having special flood hazards or, if it is, Mortgagor has obtained the
insurance required by Section 1.09.
Section 1.03 Filinl! and Recordinl!.
(a) Filinl! and Recordin~ of Documents. Mortgagor forthwith upon the
execution and delivery hereof, and thereafter from time to time, will cause this Mortgage
and any security instrument creating a lien or evidencing the lien hereof upon the
Personal Property and each instrument of further assurance to be filed, registered and/or
recorded in the land and chattel records of the State of Florida and in such other manner
and in such places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the interests of Mortgagee and the
Lenders in, the Mortgaged Property.
(b) Filinl! and Recordinl! Fees and Other Charl!es. Mortgagor will pay all
filing, registration or recording fees, and all actually incurred reasonable third-party
expenses. incident to the. execution and acknowledgment hereof, any mortgage
supplemental hereto, any security instrument with respect to the Personal Property, and
any instrument of further assurance, and any expenses (including reasonable attorneys'
fees and disbursements) actually incurred by Mortgagee in connection with the Loan and
other obligations secured hereby, and will pay all federal, state, county and municipal
stamp taxes and other taxes (as specifically provided for in the Loan Agreement and
subject to the terms of Section 1.07(c) hereof), duties, imposts, assessments and charges
arising out of or in connection with the execution and delivery of. the Note, this
Mortgage, any mortgage supplemental hereto, any security instrument with respect to the
Personal Property or any instrument of further assurance.
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Section 1.04 Payment and Perfonnance. Mortgagor will punctually pay the
principal and interest and all other sums to become due in respect hereof and of the Note
and the Loan Agreement at the time and place and in the manner specified therein, all in
currency of the United States of America which at that time of such payment shall be
legal tender for the payment of public and private debts. Mortgagor will duly and timely
comply with and perfonn all of the terms, provisions, covenants and agreements
contained in said documents and in all other documents or instruments executed or
delivered by Mortgagor to Mortgagee, Administrative Agent or the Lenders in connection
with the Loan or other obligations secured hereby.
Section 1.05 Maintenance of Existence: Comoliance with Laws. Mortgagor
will, so long as it is owner of all or part of the Mortgaged Property, do all things
necessary to preserve and keep in full force and effect its existence, franchises, rights and
privileges as a business or stock corporation, partnership, limited liability company, trust
or other entity under the laws of the state of its fonnation. Mortgagor will duly and
timely comply with all laws, regulations, rules, statutes, orders and decrees of any
governmental authority or court applicable to it or to the Mortgaged Property or any part
thereof, except to the extent that failure to comply would not be expected to have a
material adverse effect with respect to Mortgagor or the Mortgaged Property.
Section 1.06 After-Acquired Prooertv. All right, title and interest of Mortgagor
in and to all extensions, improvements, betterments, renewals, substitutes and
replacements of, and aU additions and appurtenances to, the Mortgaged Property,
hereafter acquired by, or released to, Mortgagor or constructed, assembled or placed by
Mortgagor on the Premises, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement or
conversion, as the case may be, and in each such case, wi thout any further mortgage,
conveyance, assignment or other act by Mortgagor, shall become subject to the lien
hereof as fully and completely, and with the same effect, as though now owned by
Mortgagor and specifically described in the Granting Clause hereof, but at any and all
times Mortgagor will execute and deliver to Mortgagee any and all such further
assurances, mortgages, conveyances or assignments thereof as Mortgagee may
reasonably require for the purpose of expressly and specifically subjecting the same to
the lien and effect hereof.
Section 1.07 Taxes: Liens: Contest Riahts.
(a) Pavrnent of Taxes and Other Charaes. Mortgagor, from time to time when
the same shall become due and payable prior to delinquency, will pay and discharge all
taxes of every kind and nature (including real and personal property taxes and income,
franchise, withholding, profits and gross receipts taxes, but not including Excluded
Taxes, as defined in the Loan Agreement), all general and special assessments, levies,
pennits, inspection and license fees, all water and sewer rents and charges, all charges for
utilities and all other public charges whether of a like or different nature, imposed upon
or assessed against it or the Mortgaged Property or any part thereof or upon the revenues,
rents, issues, income and profits of the Mortgaged Property or arising in respect of the
construction, occupancy, use or possession thereof. Mortgagor will, upon Mortgagee's
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request, deliver to Mortgagee receipts evidencing the payment of all such taxes,
assessments, levies, fees, rents and other public or private charges imposed upon or
assessed against it or the Mortgaged Property or any portion thereof.
following an Event of Default, Mortgagee may, at its option, to be exercised by
notice to Mortgagor, require the deposit by Mortgagor, at the time of each payment of an
installment of interest or principal under the Note (but no less often than monthly), of an
additional amount sufficient to discharge the obligations under this clause (a) when they
become due. The determination of the amount so payable and of the fractional part
thereof to be deposited with Mortgagee, so that the aggregate of such deposits shall be
reasonably sufficient for this purpose, shall be made by Mortgagee in its sole but
reasonable discretion. Such amounts shall be held by Mortgagee without interest and
applied to the payment of the obligations in respect of which such amounts were
deposited or, at Mortgagee's option, to the payment of said obligations in such order or
priority as Mortgagee shall determine, on or before the respective dates on which the
same or any of them would become delinquent. If one month prior to the due date of any
of the aforementioned obligations the amounts then on deposit therefor shall be
insufficient for the payment of such obligation in full, Mortgagor within ten days after
demand shall deposit the amount of the deficiency with Mortgagee. Nothing herein
contained shall be deemed to affect any right or remedy of Mortgagee under any
provisions hereof or of any statute Or rule of law to pay any such amount and to add the
amount so paid, together with interest at the Prime Based Default Rate, to the
Indebtedness hereby secured.
(b) Pavrnent of Mechanics and Materialmen. Mortgagor will pay, from time
to time when the same shall become due, all lawful claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result in, or permit the creation
of, a lien on the Mortgaged Property or any part thereof,. and in general will do or cause
to be done everything necessary so that the lien hereof shall be fully preserved, at the cost
of Mortgagor and without expense to Mortgagee.
(c) Good Faith Contests. Nothing in this Section 1.07 shall require the
payment or discharge of any obligation imposed upon Mortgagor by this Section so long
as Mortgagor shall in good faith and at its own expense contest the same or the validity
thereof by appropriate legal proceedings or by the posting a bond, which in either event
shall operate to prevent the collection thereof or other realization thereon and the sale or
forfeiture of the Mortgaged Property or any part thereof to satisfy the same; Drovided.
however. that (i) during such contest Mortgagor shall, at Mortgagee's option, provide
security reasonably satisfactory to Mortgagee, assuring the discharge of Mortgagor's
obligation hereunder and of any additional charge, penalty or expense arising from or
incurred as a result of such contest and (ll) if at any time payment of any obligation
imposed upon Mortgagor by clause (a) above shall become necessary to prevent the
delivery of a tax deed or other instrument conveying the Mortgaged Property or any
portion thereof because of non-payment, then Mortgagor shall pay the same in sufficient
time to prevent the delivery of such tax deed or other instrument.
Section 1.08 Intentionallv Deleted.
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Section 1.09 Insurance.
(a) Mortgagor will at all times provide, maintain and keep in force:
(i) policies insuring the Premises, Improvements and Personal
Property against loss or damage by fire, lightning and other risks embraced by
coverage of the type now known as "All Risk Perils" with extensions of coverage
for floods and windstorm, and acts of terrorism, terrorist activities or similar
activities, and including endorsements providing "Demolition and lncre~ed Cost
of Construction" due to the enforcement for laws and ordinances regulating
reconstruction following a loss, and "Replacement Cost" coverage including a
coinsurance waiver and/or" Agreed Amount" endorsement; amounts of insurance
shall equal 100% of the "Replacement Cost Value" of the improvements;
(ii) "Boiler & Machinery" insurance providing coverage for all
mechanical, electrical, and pressure vessel equipment on a "Comprehensive
Replacement Cost" basis;
(iii) policies insuring business interruption and/or loss of rental income
on an "Actual Loss Sustained" basis in amounts not less than one year's rental
income from the Premises and the Improvements and including (for other than
Residential Units) an extended period of indemnity provision providing rent loss
payments for six months after completion of reconstruction following a loss;
covered perils and endorsements shall include those required by paragraphs (i)
and (ii) and above;
(iv) if all or part of the Premises are located in an area identified by the
Secretary of the United States Department of Housing and Urban Development or
by any applicable federal agency as a flood hazard area, flood insurance in an
amount at least equal to the maximum limit of coverage available under the
National Flood Insurance Act of 1968, Drovided, however. that Mortgagee
reserves the right to require flood insurance in excess of said limit if such
insurance is commercially available up to the amount provided in clause (i)
above;
(v) a policy or policies of workers' compensation insurance as
required by workers' compensation insurance laws (including employer's liability
insurance, if requested by Mortgagee) covering all employees of Mortgagor;
(vi) Commercial General Liability insurance covering premises and
operations of the insured in amounts of $1,000.000 per occurrence and
$2,000,000 in the annual aggregate per location;
.(vii) Commercial Automobile Liability providing Owned (if any), Hired
and Non-Owned Automobiles in amounts not less than $1,000,000 per accident;
(viii) Commercial Umbrella Liability insurance in excess of the
foregoing in amounts not less than $50,000,000 (or $100,000,000 until the
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"Construction Certification Date" (as defined in the Loan Agreement)) per
occurrence and in the annual aggregate per location (if the aggregate is shared
among several locations, the amount of insurance required shall be increased to
$100,000,000 per occurrence and in the annual aggregate);
(xi) an environmental insurance policy in the form delivered to
Administrative Agent in connection with the execution and delivery of the Loan
Agreement or in such form and in such coverage amounts as may be reasonably
acceptable to Administrative Agent;
(xii) such other insurance (including, without limitation, garage
liability, liquor liability, flood and windstorm, and similar coverages that are
purchased by prudent owners of similar business operations in the Miami, Florida
area) ; and in such amounts, as may from time to time be reasonably required by
Mortgagee against the same hazards or other insurable hazards; and
(xiii) such insurance as is required under the Condominium Documents
upon the establishment of a condominium association at the Phase I Component.
Upon the establishment of any condominium association with respect to all or any
part of the Improvements, all insurance purchased by said condominium association shall
comply, in all material respects, in form and substance, with the insurance required
. herein. In addition, the Condominium Documents shall require that any Residential Unit
owners with a use which poses special hazards shall purchase insurance for such special
hazards associated with the use and occupancy of their condominium units.
(b) All liability insurance policies under this Section 1.09 shall name
Mortgagee as an "Additional Insured", it being agreed that Mortgagee shall not be named
as an additional insured on any worker's compensation insurance policies. All policies of
insurance required under this Section 1.09 shall be issued by companies having either a
(i) Best's ratings of not less than A-IX or (ii) rated AA or better by the Standard and
Poor's Ratings Group, a division of McGraw-Hili, Inc. (or A or better by the Standard
and Poor's Ratings Group, a division of McGraw-Hili, Inc. with respect to terrorism
insurance coverage) and licensed to conduct business in the Stale of Florida and being
otherwise reasonably acceptable to Mortgagee, shall be subject to the reasonable approval
of Mortgagee as to amount, content, form and expiration date and, except for the liability
policies described above, shall contain a Non-Contributory Standard Mortgagee Clause
and Lender's Loss Payable .Endorsement, or their equivalents, in favor 6fMortgagee, and
shall provide that the proceeds of property damage and rental income loss insurance shall
be payable to Mortgagee. Mortgagee shall be furnished with an original of each policy
required hereunder (with certified copies of each policy to be delivered by Mortgagor in
the event of a claim or material event in excess of the threshold amount set forth in
Section 1.09(c) below), which policies shall provide that they shall not lapse, nor be
modified or cancelled, without thirty days' written notice to Mortgagee. At least thirty
days prior to expiration of any policy required hereunder, Mortgagor shall furnish to
Mortgagee appropriate proof of issuance of a policy continuing in force the insurance
covered by the policy so expiring. Mortgagor shall furnish to Mortgagee, promptly upon
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request, receipts or other satisfactory evidence of the payment of the premiums on such
insurance policies. In the event that Mortgagor does not deposit with Mortgagee a new
certificate or policy of insurance with evidence of payment of premiums thereon at least
thirty days prior to the expiration of any expiring policy, then Mortgagee may, but shall
not be obligated to, procure such insurance and pay the premiums therefor, and
Mortgagor agrees to repay to Mortgagee the premiums thereon promptly on demand,
together with interest thereon at the Prime Based Default Rate; orovided. however, thllt
Mortgagee shall use reasonable efforts to give Mortgagee notice and an oppoitunity to
procure such insurance and pay the premiums thereon prior to Mortgagee doing so, but
Mortgagee's failure to do so shall not affect Mortgagor's obligation to repay the cost of
such premiums to Mortgagee. Mortgagor shall furnish to Mortgagee, promptly upon
request, receipts or other reasonably satisfactory evidence of the payment of the
premiums on such insurance policies.
(c) Mortgagor hereby assigns to Mortgagee all of Mortgagor's interests in and.
to all proceeds of any insurance required to be maintained by this Section 1.09 which
Mortgagor may be entitled to receive for loss or damage to the Premises, Improvements
or Personal Property, including loss of rental income. All such insurance proceeds shall
be payable to Mortgagee, and Mortgagor hereby authorizes and directs any affected
insurance company to make payment thereof directly to Mortgagee. Supplementing the
provisions of Section] .09(0 hereof, to the extent that the reasonably estimated cost to
restore the damage from a casualty is limited to $500,000 or less, Mortgagee will
unconditionally direct all insurance proceeds it receives to Mortgagor for repair, as
appropriate. Mortgagor shall give prompt notice to Mortgagee of any property loss due
to a casualty, whether or not of a kind required to be insured against under the policies to
be provided by Mortgagor hereunder, such notice to generally describe the nature and
cause of such casualty and the extent of the damage or destruction. Mortgagor may
settle, adjust or compromise any claims for loss, damage or destruction, regardless of
whether or not there are insurance proceeds available or whether any such insurance
proceeds are sufficient in amount to fully compensate for such loss or damage, subject to
Mortgagee's prior consent, with such consent not to be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, Mortgagee shall have the right to
join Mortgagor in settling, adjusting or compromising any loss of $500,000 or more.
Mortgagor hereby authorizes the application or release by Mortgagee of any insurance
proceeds under any policy of insurance. subject to the other provisions hereof. The
application or release by Mortgagee of any insurance proceeds shall not cure or waive
any default or notice of default hereunder or invalidate any act done pursuant to such
notice.
(d) In the event of the foreclosure hereof or other transfer of the title to the
Mortgaged Property in extinguishment, in whole or in part, of the Indebtedness secured
hereby, all right, title and interest of Mortgagor in and to any insurance policy, or
premiums or payments in satisfaction of claims or any other rights thereunder then in
force, shall pass to the purchaser or grantee notwithstanding the amount of any bid at
such foreclosure sale. Nothing contained herein shall prevent the accrual of interest as
provided in the Note on any portion of the principal balance due under the Note until
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such time as insurance proceeds are actually received and applied to reduce the principal
balance outstanding.
( e) Mortgagor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this Section
1.09 unless Mortgagee is included thereon as a named insured with loss payable to
Mortgagee under standard mortgage endorsements of the character and to the extent
above described. Mortgagor shall promptly notify Mortgagee whenever any such
separate insurance is taken out and shall promptly. deliver to Mortgagee the policy or
policies of such insurance.
(f) Except for any insurance proceeds which pursuant to the terms of the
Condominium Documents or Section 1.09( c) hereof are to be otherwise applied, held or
payable, any and all monies ("Droceeds") received as payment which Mortgagor may be
entitled to receive for loss or damage to the Premises, hnprovements or Personal Property
under any insurance maintained pursuant to this Section 1.09 (other than proceeds under
the policies required by clause (a)(iii) above) shall be paid over to Mortgagee and, at
Mortgagee's option, either applied to the prepayment of the Note and all interest, and
other sums accrued and unpaid in respect thereof or disbursed from time to time to
Mortgagor in reimbursement of its costs and expenses incurred in the restoration of the
Improvements in the same manner and subject to the same terms and conditions
(including the absence of an Event of Default) as advances of proceeds of the Loan are
made by the Lenders under the Loan Agreement, in either case, less Mortgagee's
reasonable expenses for collecting and. if applicable, disbursing the insurance proceeds,
or otherwise incurred in connection therewith. NotWithstanding the provisions of the
immediately preceding sentence, provided no Event of Default exists hereunder,
Mortgagee agrees to apply any such proceeds received by it to the reimbursement of
Mortgagor's costs of restoring the Improvements. Advances of insurance proceeds shall
be made to Mortgagor from time to time in the same manner and subject to the same
terms and conditions (including the absence of a continuing Event of Default) as
advances customarily required by lenders for advancing construction loans; amounts not
required for such purposes shall be applied, at Mortgagee's option, to the prepayment of
the Note and to interest and other sums accrued and unpaid thereon in such order and
proportions as Mortgagee may elect. In no event shall Mortgagee be required to advance
such proceeds to Mortgagor for restoration unless Mortgagee shall have reasonably
determined that the restoration of the Improvements can be completed by the then
Maturity Date of the Note at a cost which does not exceed the amount of available
insurance proceeds or, in the event that. such proceeds are reasonably determined by
Mortgagee to be inadequate, Mortgagee shall have received from Mortgagor a cash
deposit equal to the excess of said estimated cost of restoration over the amount of said
available proceeds. If Mortgagor makes a cash deposit as required by the immediately
preceding sentence and thereafter upon completion of the restoration if Mortgagee is still
holding any remaining funds from insurance proceeds or Mortgagor cash deposits related
to the restoration, notwithstanding the foregoing provisions of this clause (f), provided no
Event of Default exists and is continuing hereunder, Mortgagee shall return to Mortgagor
an amount equal to the lesser of (x) the amount of such remaining funds or (y) the
amount of such cash deposit made by Mortgagor and any excess not so returned due to
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the existence of an Event of Default to Mortgagor shall reduce the Principal Amount. If
the conditions for the advance of insurance proceeds for restoration set forth above arc
not satisfied within ninety days of Mortgagee's receipt thereof or if the actual restoration
shall not have been commenced within such period, Mortgagee shall have the option at
any time thereafter to apply such insurance proceeds to the payment of the Note and to
interest and other sums accrued and unpaid thereon in such order and proportions as
Mortgagee may elect. Upon subordination of this Mortgage, pursuant to Section 12.03 of.
the Loan Agreement, to the condominium regime to be created by Mortgagor on the
Premises in accordance with Section 6.17 of the Loan Agreement, the tenns and
provisions of this Section 1.09 shall be subject to the restoration requirements of the
condominium documents and the terms of the Condominium Act. Mortgagor shall use
reasonable efforts, to the extent within Mortgagor's control, to have Mortgagee appointed
as the trustee or holder under the Condominium Documents of all hazard insurance
proceeds in each instance where such an insurance trustee is required or permitted under
the Condominium Documents.
Section 1.1 0 Protective Advances. If Mortgagor shall fail to perform any of the
covenants contained herein or in the Loan Agreement (subject to any notice and grace
periods, if any, provided for in the Loan Agreement), Mortgagee may make advances to
perform the same on its behalf and all sums so advanced shall be a lien upon the
Mortgaged Property and shall be secured hereby. Mortgagor will repay on demand all
sums so advanced on its behalf together with interest thereon at the Prime Based Default
Rate. The provisions of this Section shall not prevent any default in the observance of
any covenant contained herein from constituting an Event of Default.
Section 1.11 Inspection and Estoppel Certificates.
(a) Visitation and Inspection. Mortgagor will permit Mortgagee, any of the
Lenders, by their agents, representatives and attorneys, upon reasonable advance notice
and during normal business hours, to visit and inspect all or any part of the Mortgaged
Property. Mortgagor will keep, and will cause Guarantor to keep, adequate records and
books of account in accordance with, (i) in the case of Mortgagor, sound accounting
principles consistently applied, and (ii) in the case of Guarantor, GAAP, and will permit,
and cause Guarantor to permit, Mortgagee, any of the Lenders, by their agents,
accountants and attorneys, to examine its and Guarantor's records and books of account
and make copies thereof or extracts therefrom, and to discuss its or Guarantor's affairs,
finances and accounts with the general partners or officers, as the case may be, of
Mortgagor or Guarantor, at such reasonable times as may be requested by Mortgagee or
any of the Lenders. Mortgagor agrees to cooperate with Mortgagee and the Lenders, and
their agents, representatives, attorneys and accountants, to facilitate the visitations,
inspections and examinations provided for in this paragraph (a).
(b) Estopoel Certificates. Mortgagor, within five business days upon request
in person or within five business days upon request by mail, will furnish a statement. duly
acknowledged, of the amount due for principal and/or interest on the Loan and whether
any offsets, counterclaims or defenses exist against the Indebtedness secured hereby.
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Section 1.12 Maintenance of Premises and Imorovements, Mortgagor will not
commit any physical waste on the Premises or, except in connection with the
Construction Work and as permitted by or contemplated under the Loan Agreement make
any change in the use of the Premises which will in any way increase any ordinary fire or
other hazard arising out of the Construction Work or operation. Mortgagor will, at all
times, maintain the Improvements and Personal Property in good operating order and
condition and will promptly make, from time to time, all repairs, renewals, replacements,
additions and improvements in connection therewith which are needful or desirable to
such end. Except in connection with the Construction Work and as permitted by or
contemplated under the Loan Agreement, the Improvements shall not be demolished or
substantially altered nor shall any Personal Property be removed without the prior written
consent of Mortgagee except where appropriate replacements free of superior title, liens
and claims (other than Permitted Liens) are immediately made of value at least equal to
the value of the removed Personal Property.
Section 1.13 Condemnation. Mortgagor, immediately upon obtaining
knowledge of the institution or pending institution of any proceedings for the
condemnation of the Premises or any portion thereof, will notify Mortgagee thereof.
Mortgagee may, to the extent permitted by law, participate in any such proceedings and
may be represented therein by counsel of Mortgagee's selection. Mortgagor from time to
time will deliver to Mortgagee all instruments reasonably requested by it to permit or
facilitate such participation. In the event of such condemnation proceedings, subject to
applicable laws and subject to the applicable provisions of the Condominium Documents,
the award or compensation payable is hereby assigned to and shall be paid ,to Mortgagee.
Mortgagee shall be under no obligation to question the, amount of any such award or
compensation and may accept the same in the amount in which the same shall be paid.
The proceeds of any award or compensation so received shall, at Mortgagee's option,
either be applied to the prepayment of the Note and all interest and other sums accrued
and unpaid in respect thereof at the rate of interest provided therein and in the Loan
Agreement regardless of the rate of interest payable on the award by the condemning
authority, or held by Mortgagee in an interest-bearing cash collateral account to be
disbursed to Mortgagor from time to time for restoration of the Improvements in the same
manner and subject to the same terms and conditions (including the absence of an Event
of Default) as advances of proceeds of the Loan are made by the Lenders under the Loan
Agreement, in either case, less Mortgagee's reasonable expenses for collecting and, if
applicable, disbursing the award, or otherwise reasonably incurred in connection
therewith. Notwithstanding the provisions of the immediately preceding sentence,
provided no Event of Default exists and is continuing hereunder, Mortgagee agrees to
apply any such condemnation award proceeds received by it to the reimbursement of
Mortgagor's costs of restoring the Improvements. Advances of condemnation award
proceeds shall be made to Mortgagor from time to time in the same manner and subject to
terms and conditions (including the absence of default) as advances customarily required
by lenders for advancing of construction loans; amounts not required for such purposes
shall be applied, at Mortgagee's option, to the prepayment of the Note and to interest and
other sums accrued and unpaid thereon (at the rate of interest provided therein regardless
of the rate of interest payable on the award by the condemning authority), all in such
order and proportions as Mortgagee may elect. In no event shall Mortgagee be required
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to advance such proceeds to Mortgagor for restoration unless Mortgagee shall have
reasonably determined that the restoration of the Improvements to an economically viable
architectural whole can be completed by the Maturity Date of the Note ata cost which
does not exceed the amount of available condemnation award proceeds or, in the cvent
that such proceeds are reasonably determined by Mortgagee to be inadequate, Mortgagee
shall have received from Mortgagor a cash deposit (to be held by Mortgagee in an
interest-bearing cash collateral account on terms and conditions reasonably satisfactory to
Mortgagee) equal to the excess of said estimated cost of restoration over the amount of
said available proceeds. If Mortgagor makes a cash deposit. as required by the
immediately preceding sentence and thereafter upon completion of thc restoration if
Mortgagee is still holding any remaining funds from condemnation awards or Mortgagor '
cash deposits related to the restoration, notwithstanding the foregoing provisions of this
Section 1.13, provided no Event of Default exists hereunder, Mortgagee shall return to
Mortgagor an amount equal to the lesser of (x) the amount of such remaining funds or (y)
the amount of such cash deposit made by Mortgagor and any such exccss shall reduce the
Principal Amount. If the conditions for the advance of condemnation award proceeds for
restoration set forth above are not satisfied within ninety days of Mortgagec's receipt
thereof or if the actual restoration shall not have been commenced within such period,
Mortgagee shall have the option at any time thereafter to apply such condemnation award
proceeds to the payment of the Note and to interest and other sums accrued and unpaid
thereon (at the rate of interest provided therein regardless of the rate of interest payable
on the award by the. condemning authority), all in such order and proportions as
Mortgagee may elect. Mortgagor shall use commercially reasonable efforts and to the
extent it is within Mortgagor's control to have Mortgagee appointed as the trustee or
holder under the Condominium Documents of all condemnation awards in each instancc
where such a trustee is required or permitted under the Condominium Documents.
Section 1.14 Leases. Except as permitted by the Loan Agreement, Mortgagor
will not (i) execute an assignment of the Rents or any part thereof from the Premises
without. Mortgagee's prior consent, (ii) amend or modify any Lease, (Iii) accept
prepayments of any installments of rents to become due under such Leases .more than one
month in advance, except prepayments in the nature of security for the performance of
the lessees thereunder, or (iv) in any other manner materially and adversely impair the
value of the Mortgaged Property or the security hereof.
(a) Mortgagor will not execute any Lease of all or a substantial portion of the
Premises except for Leases which are in accordance with the Loan Agreement and are for
actual occupancy by the lessee thereunder, and will at all times promptly and faithfully
perform, or cause to be performed, all of the covenants, conditions and agreemcnts
contained in all Leases of the Premises or portions thereof now or hereafter existing, on
the part of the lessor thereunder to be kept and performed and will at all times do all
things in a commercially reasonable manner to compel performance by the lessee under
each Lease of all obligations, covenants and agreements by such lessee to be performed
thereunder. If any of such Leases provide for the giving by the lessee of certificates with
respect to the status of such Leases, Mortgagor shall exercise its right to request such
certificates within five days of any demand therefor by Mortgagee and shall deliver
copies thereof to Mortgagee promptly upon receipt.
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(b) Each Lease of the Premises entered into after the date hereof, or of any
part thereof, shall provide that, in the event of the enforcement by Mortgagee of the
. remedies provided for hereby or by law, the lessee thereunder will, upon request of any
person succeeding to the interest of Mortgagor as a result of such enforcement,
automatically become the lessee of said succeSsor in interest, without change in the terms
or other provisions of such Lease, Drovided. however, that said successor in interest shall
not be bound by any payment of rent or additional rent for more than one month in
advance, except prepayments in the nature of security for the performance by said lessee
of its obligations under said Lease. Each Lease entered into after the date hereof shall
also provide that the Lease is subordinate to this Mortgage.
(c) Subject to applicable law, Mortgagor shalI, promptly upon Mortgagee's
request, deposit all tenant security deposits in respect of the Premises into an account
with Mortgagee or as designated by Mortgagee, which deposits shall be held and
disbursed to tenants as required under the terms of their respective Lcases and in
accordance with applicable laws. Prior to receipt of such notice, Mortgagee agrees that
Mortgagor may maintain such deposits with Wachovia Bank.
Section 1.15 Premises Documents. Mortgagor shall (a) do all things
commercially reasonable to cause the due compliance and faithful performance by the
other parties to the Premises Documents with all obligations and agreements by such
other parties to be complied with and performed thereunder, (b) comply with and perform
all of its obligations under thc Premises Documents and (c) deliver promptly to
Mortgagee copies of any notices which it gives or receives under any of the Premises
Documents.
Section 1.16 Utilities. Mortgagor will not, without the prior written consent of
Mortgagee, with such consent not to be unreasonably withheld, conditioned or delayed,
sell or contract to sell, or enter into an option to sell, or exchange, assign, convey, transfer
possession of (including, without limitation, by Lease) or otherwise dispose of all or any
material part of the utilities, utility commitments or other agreements or rights of any
nature relating to the utilities, drainage ditches and/or treatment plants associated with thc
Mortgaged Property. Mortgagor further covenants and agrees that it will take any such
action and execute, acknowledge, deliver and record and/or file any and all instruments
as may be commercially reasonable, desirable or proper to keep any existing or future
utility commitments covering the Mortgaged Property in a current and valid condition
and to keep the existing utility capacity for the Mortgaged Property at or above its present
level. As used herein, the term "utilities" includes, without limitation, water, gas,
electricity and storm and sanitary sewer.
Section 1.17 Collateral Security Instruments. If Mortgagee at any time holds
additional security for any of the Indebtedness secured hereby, it may, subject to the
terms thereof, enforce the terms thereof or otherwise realize upon the same, at its option
either before or concurrently herewith or after a sale is made hereunder, and may apply
the proceeds upon the Indebtedness secured hercby in such order as Mortgagee may
determine, without affecting the status of or waiving any right to exhaust all or any other
security, including the security hereunder, and without waiving any breach or default or
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any right or power whether exercised hereunder or contained herein or in any such other
security. .
Section 1.18 Suits to Protect PropertY. Mortgagor will appear in and defend any
lawful action or proceeding purporting to affect the security of this Mortgage, and/or any
additional or other security for the Indebtedness secured hereby, the interest of
Mortgagee or the rights, powers and/or duties of Mortgagee hereunder; and will pay all
reasonable costs and expenses, including the cost of evidence of title and any and all
reasonable legal fees and expenses of Mortgagee, including, without limitation, any and
all such reasonable fees and expenses incurred in connection with litigation, mediation,
arbitration, other alternative dispute processes, administrative proceedings and
bankruptcy proceedings, and any and all appeals from any of the foregoing, in any action
or proceeding in which Mortgagee may appear or be made a party, including, but not
limited to, foreclosure or other proceeding commenced by those claiming a right to any
part of the Mortgaged Property under subordinate liens, in any action to partition or
condemn all or part of the Mortgaged Property, whether or not pursued to final judgment,
and in any exercise of the power of sale contained herein, whether or not the sale is
actually consummated.
Section 1.19 Reliance on Premises to Fulfill Governmental Reauirements. The
Mortgaged Property includes all right, title and interest in any property necessary to meet
any governmental requirements for the operation of the Improvements. Mortgagor shall
not by act or omission permit any building or other improvement located on any property
other than the buildings in which the Mortgaged Property is located to fulfill any
governmental requirement, and Mortgagor hereby collaterally assigns to Mortgagee any
and all rights to consent to all or any portion of or interest in the Premises to be so used.
Any act or omission of Mortgagor which would result in a violation of this Section shall
be void.
Section 1.20 Tradenames. At the request of Mortgagee, Mortgagor shall
execute a certificate in form satisfactory to Mortgagee listing the tradenames under which
Mortgagor is operating or intends to operatc the Premises, and representing and
warranting that Mortgagor does business under no other tradenames with respect, to the
Premises. Mortgagor shall immediately notify Mortgagee in writing of any change in
said tradenames, and will, upon request of Mortgagee, execute any tradename security
agreements reasonably satisfactory to Mortgagor, additional financing statements and
other certificates revised to reflect the change in tradename.
Section 1.21 Lien Laws. Mortgagor will indemnify and hold Mortgagee and the
Lenders harmless against any loss or lillbility, cost or cxpense, including, without
limitation, any judgments, reasonable attorney's fees, costs of appeal bonds and printing
costs, arising out of or relating to any proceeding instituted by any claimant alleging a
violation by Mortgagor of any applicable lien law.
oSection 1.22 Prohibited Transfer. Except as provided in the Loan Agreement,
the Mortgagor shall not transfer, or agree to transfer (or suffer or permit the transfer or
agreement to transfer), in any manner, either voluntarily or involuntarily, by operation of
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law or otherwise, all or any portion of the Mortgaged Property (other than transfers of
interests not constituting a Change of Control as defined in the Loan Agreement), or any
interest or rights therein (including air or development rights).
ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
Section 2.0 I Events of Default and Certain Remedies. If an Event of Default
shall occur, then and in every such case:
(i) Mortgagee, without notice or demand (unless specifically required
by applicable law), may declare the entire principal of the Note then outstanding
(if not then due and payable), and all accrued and unpaid interest and all other
sums secured hereby, to be due and payable immediately (and upon any such
declaration the principal of the Note and said accrued and unpaid interest and all
other sums secured hereby shall become and be immediately duc and payable,
anything in the Note, this Mortgage or any of the other Loan Documents to the
contrary notwithstanding). .
(ii) Mortgagee, personally or by its agents or attorneys, or by a
receiver appointed by a court of competent jurisdiction, without notice to or
demand upon Mortgagor (unless specifically required by any applicablc law
which is not susceptible of being waived by Mortgagor), without releasing
Mortgagor or any other obligor from any obligation hereunder or under any of
the other Loan Documents and without waiving its right to declare a Default or an
Event of Default as herein provided or impairing any declaration of Default or an
Event of Default or election to cause the Mortgaged Property or any part thereof
to be sold or any sale proceeding predicated thereon, may:
(I) enter into and upon all or any part of the Mortgaged
Property, and each and'every part thereof, and is hereby given a right and
irrevocable license to do so, and may exclude Mortgagor, its agents and
servants wholly therefrom; and having and holding the same, may use,
opemte, lease, manage and control the Mortgaged Property and conduct
the business thereof, either personally or by its superintendents, managers,
agents, servants, attorneys or receivcrs; and upon every such cntry, at the
- expense of the Mortgaged Property, from time to time, either by purchase,
repairs or construction, may protect, maintain and restore the Mortgagcd
Property, whereof it shall become possessed as aforesaid; and complete
the Construction Work and, in the course of such completion, make such
changes in the contemplated Improvements as Mortgagee may deem
desirable and may insure the same;
(2) from time. to time, at the reasonable expense of the
Mortgagor, make all necessary, proper or reasonable repairs, renewals and
replacements and such useful alterations, additions, betterments and
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improvements thereto and thereon as to Mortgagee may seem advisable;
and in every such case Mortgagee shall have the right to managc and
operate the Mortgaged Property and to carry on the business thereof and
exercise all rights and powers of Mortgagor with respect thereto either in
the name of Mortgagor or otherwise as Mortgagee shall deem best;
(3) commence, appear in and/or dcfend any action or.
proceedings purporting to affect the security hereof, and/or any additional
or other security therefor, the interests, rights, powers and/or dutics of
Mortgagee hereunder, whether brought by or against Mortgagor. the
Lenders or Mortgagee;
(4) discharge any encumbrance which in the reasonable
judgment of Mortgagee may affect or appear to affect the security of this
Mortgage, the interests of Mortgagee or the Lenders or the rights, powers
and/or duties of Mortgagee and/or the Lenders hereunder, and any sums
expended for such purposes shall become part of the Indebtedness secured
hereby; and/or
(5) collect and receive the Rents and every part thereof, all of
which shall for all purposes constitute property of Mortgagor; and in
furtherance of such right may collect the rents payable under all Lcases of
the Premises directly from the lessees thereunder upon notice to each such
lessee that an Event of Default exists hereunder accompanied by a demand
on such lessee for the payment to Mortgagee of all rents duc and to
become due under its Lease, and Mortgagor FOR lHE BENEFIT OF
MORTGAGEE AND EACH SUCH LESSEE hereby covenants and
agrees that the lessee shall be under no duty to question the accuracy of
Mortgagee's statement of default and shall unequivocally be authorized to
pay said rents to Mortgagee without regard to the truth of Mortgagee's
statement of default and notwithstanding notices from Mortgagor or any
other person or entity disputing the existence of an Event of Default such
that the payment of rent by the lessee to Mortgagee pursuant to such a
demand shall constitute performance in full of the lessee's obligation
under the Lease for the payment of rents by the lessee to Mortgagor; and
after deducting the expenses of conducting the business thereof and of aU
maintenance, repairs, renewals, replacements, alterations, additions,
betterments and improvements and amounts necessary to pay for taxes,
assessments, insurance and prior or other proper charges upon the
Mortgaged Property or any part thereof, as well as the expenses of any
such receivership and the just and reasonable compensation for the
services of Mortgagee and for all receivers, attorneys, counsel, agents,
clerks, servants and other cmployees by Mortgagee engaged and
employed, Mortgagee, or any such receiver, as. the case may be, shall
apply the moneys arising as aforesaid, first. to the payment of the principal
of the Note, the interest thereon when and as the same shall become
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payable and second, to the payment of any other sums required to be paid
by Mortgagor under this Mortgage and other Loan Documents.
The collection and/or receipt of income, rents, issues, profits and/or proceeds
from the Mortgaged Property by Mortgagee, its agent or receiver, after declaration of an
Event of Default and election to cause all or part of the Mortgaged Property to be sold
under and pursuant to the terms of this Mortgage shall not affect or impair such default or
declaration of default or election to cause all or part of the Mortgaged Property to be sold
or any sale proceedings predicated thereon, but such proceedings may be conducted and
sale effected notwithstanding the receipt and/or collection of any such income, rents,
issues, profits and/or proceeds. Any such income, rents, issues, profits and/or proceeds in
the possession of Mortgagee, its agent or receiver, at the time of sale and not theretofore
applied as provided above, shall be applied in the same manner and for the same purposes
as the proceeds of the sale. Mortgagor agrees to pay to Mortgagee, promptly upon
Mortgagee's demand. all expenses, costs and other amounts incurred by Mortgagee in
connection with any appointment of a receiver, with interest thereon at the Prime Based
Default Rate from the date of expenditure.
(ui) Mortgagee, with or without colly, personally or by its agents or
attorneys, insofar as applicable, may:
(1) sell the Mortgaged Property and all estate, right, title and
interest, claim and demand therein, and right of redemption thcreof,
pursuant to the procedures and powers authorized under Florida law, the
provisions of which are incorporated herein by reference, or by other.
provisions provided by law, at one or more sales, as an entity or in parcels
or parts, and at such time and place, and upon such terms and conditions
and after such notice thereof, as may be required or permitted by law;
and/or
(2) take such steps to protect and enforce its rights whether by
action, suit or proceeding in equity or at law for the specific performance
of any covenant, condition or agreement in the Note, the Loan Agreement,
this Mortgage or in any of the other Loan Documents, or in aid of the
execution of any power herein granted, or for any foreclosure hereunder,
or for the enforcement of any other appropriate legal or equitable remedy
01 otherwise as Mortgagee shall elect; and/or
(3) instituie proceedings for the complete or partial foreclosure
of this Mortgage,
(iv) Mortgagee may proceed as to the Personal Property in accordance
with Mortgagee's rights and remedies in respect to the Mortgaged Property or sell
the Personal Property separately and without regard to the remainder of the
Mortgaged Property in accordance with Mortgagee's rights and remedies
provided by the Code, as well as such other rights and remedies available at law
or in cquity.
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Section 2.02 Adiournment of Sale. Mortgagee may adjourn from time to time
any sale by it to be made hereunder or by virtue hereof by announcement at the timc and
place appointed for such sale or such adjoumed sale or sales; and, except as otherwise
provided by any applicable provision of law, Mortgagee, without further notice or
publication, may make such sale at the time and place to which the same shall be so
adjoumed.
Section 2.03 Other Matters ConcerniDl! Sales and Aoolication of Proceeds.
Upon the completion of any sale or sales made by Mortgagee under or by virtue of this
Article II, Mortgagee, or an officer of any ~ourt empowered to do so, shall execute and
deliver to the accepted purchaser or purchasers a good and sufficient instrument or
instruments conveying, assigning and transferring all estate, right, title and interest in and
to the property and rights sold, but without any covenant or warranty, express or implied.
The recitals in any such instrument of any matters or facts shall be conclusive proof of
the truthfulness thereof. Mortgagee is hereby appointed the true and lawful attorney
irrevocable of Mortgagor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and rights so sold and for
that purpose Mortgagee may execute all necessary instruments of conveyance,
assignment and transfer, and may substitute one or more persons with like powcr,
Mortgagor hereby ratifying and confirming all that its said attorney or such substitutc or
substitutes shall lawfully do by virtue hereof. Nevertheless, Mortgagor, if requested by
Mortgagee, shall ratify and confirm any such sale or sales by executing and delivering to
Mortgagee or to such purchaser or purchasers all such instruments as may be advisable,
in the judgment of Mortgagee, for the purpose, and as may be designated in such requcst.
Any such sale or sales made under or by virtue of this Article II, whether made under the
power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, shall operate to divest all the estate, right,
title, interest, claim and demand whatsoevcr, whether at law or in equity, of Mortgagor in
and to the properties and rights so sold, and shall be a perpetual bar both at law and in '
equity against Mortgagor and against any and all persons claiming or who may claim thc
same, or any part thereof from, through or under Mortgagor.
(a) In the event of any sale or sales made under or by virtue of this Articlc II
(whether made under the power of sale herein granted or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale), the entire principal of,
and interest and other sums on, the Note, if not previously due and payable, and all other
sums required to be paid by Mortgagor pursuant to this Mortgage and the other Loan
Documents may, at Mortgagee's option, be accelerated, whereupon the same shall
immediately, anything in the Note, this Mortgage or any of the other Loan Documents to
the contrary notwithstanding, become due and payable. '
(b) The purchase money, proceeds or avails of any sale or sales made under or
by virtue of this Article II, together with any other sums which then may be held by
Mortgagee under this Mortgage, whether under the provisions of this Article II or
otherwise, shall be applied as follows;
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First: To the payment of the costs, fees and expenses of such sale,
including reasonable compensation to Mortgagee, its agents and counsel, and of
any judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Mortgagee under this Mortgage, and
also including attomeys' fees, expenses and costs of investigation, ail as actually
incurred and including, withoutlirnitation, attomeys' fees, costs and expenses of
investigation incurred in appellate proceedings or in any action or participation in,
or in connection with, any case or proceeding under Chapters 7, 11 or 13 of the
United States Bankruptcy Code or any successor thereto, together with interest at
the Prime Based Default Rate on all advances made by Mortgagee, and of all
taxes, assessments or other charges, except any taxes, assessments or other
charges subject to which the Mortgaged Property shall have been sold.
Second: To the payment of the whole amount then due, owing or unllaid
. upon the Note for principal, interest, with interest on the unpiud principal at thc
Default Rate or the Prime Based Default Rate, as applicable from and after the
happening of any Event of Default described in clause (a) of Section 2.01 from
the due date of any such payment of principal until the same is paid.
Third: To the payment of any other sums required to be paid by
Mortgagor pursuant to any provision of this Mortgage or of the other Loan
Documents, including all expenses, liabili ties and advances made or incurred by
Mortgagee under any thereof or in connection with the enforcement of any
thereof, together with interest at the Prime Bascd Default Rate on all such
advances from the date of expenditure.
Fourth: To the payment of the surplus, if any, to whomsoever may be
lawfully entitled to receive the same, including Mortgagor.
(c) Upon any sale or sales made under or by virtue of this Article II, whethcr
made under the power of sale herein granted or under or by virtue of judicial proceedings.
or of a judgment or decree of foreclosure and sale, Mortgagee may bid for and acquire
the Mortgaged Property or any part thereof and in lieu of paying cash therefor may make
settlement for the purchase price by crediting upon the Indebtedness secured by this
Mortgage the net sales price after deducting therefrom the expenses of the sale and the
costs of the action and any other sums which Mortgagee is authorized to deduct under
this Mortgage.
Section 2.04 Pavment of Amounts Due.
(a) In case an Event of Default shall have happened and be continuing, then,
upon demand of Mortgagee, Mortgagor will pay to Mortgagee the whole amount which
then shall have become due and payablc on the Note, for principal or intercst or any
combination thereof, as the case may be, and after the happening of said Event of Default
will also pay to Mortgagee interest at the Default Rate on the then unpaid principal of the
Note, and the sums required to be paid by Mortgagor pursuant to any provision hereo~ or
of the Loan Agreement, and in addition thereto such further amount as shall be suffiCient
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to cover the costs and expenses of collection, including reasonable compensation to
Mortgagee, its agents and counsel and any expenses incurred by Mortgagee hereunder.
In the event Mortgagor shan fail forthwith to pay all such amounts upon such demand,
Mortgagee shall be. entitled and empowered to institute such action or proceedings at law
or in equity as may be advised by its counsel for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final decree,
and may enforce any such judgment or final decree against Mortgagor and coIlect, out of
the property of Mortgagor wherever situated, as well as out of the Mortgaged Property, in
any manner provided by law, moneys adjudged or decreed to be payable.
(b) Mortgagee shall be entitled to recover judgment as aforesaid either before,
after or during the pendency of any proceedings for the enforcement of the provisions
hereof; and the right,ofMortgagee to recover such judgment shall not be affected by any
entry or sale hereunder, or by the exercise of any other right, power or remedy for the
enforcement of the provisions hereof, or the foreclosure of the lien hereof; and in the
event ofa sale of the Mortgaged Property, and of the application of the proceeds of sale,
as herein provided, to the payment of the Indebtedness hereby secured, Mortgagee shall
be entitled to enforce payment of, and to receive all amounts then remaining due and
unpaid upon, the Note, and to enforce payment of all other charges, payments and costs
due hereunder, under the Loan Agreement or otherwise in respect of the Loan, and shall
be entitled to recover judgment for any portion of the Indebtedness remaining unpaid,
with interest at the Prime Based Default Rate. In case of proceedings against Mortgagor
. in insolvency or bankruptcy or any proceedings for its reorganization or involving the
liquidation of its assets, then Mortgagee shall be entitled to provc the whole amount. of
principal, interest and other sums due upon the Note to the full amount thereof, and all
other payments, charges and costs due hereunder, under the Loan Agreement or
otherwise in respect of the Loan, without deducting therefrom any procecds obtained
from the sale of the whole or any part of the Mortgaged Property, orovided. however. that
in no case shall Mortgagee receive a greater amount than such principal, interest and such
other payments, charges and costs from the aggregate amount of the proceeds of the sale
of the Mortgaged Property and the distribution from the estatc of Mortgagor.
(c) No recovery of any judgment .by Mortgagee and/or the Lenders and no
levy of an execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect, in any manner or to any extent, the lien hereof upon
the Mortgaged Property or any part thereof, or any liens, rights, powers or remedies of
Mortgagee hereunder, but such liens, rights, powers and remedies of Mortgagee shall
continue unimpaired as before.
(d) Any moneys thus collected by Mortgagee under this Section 2,04 shall be
applied by Mortgagee in accordance with the provisions of Section 2.03(bt
Section 2.05 Actions: Receivers. After the happening of any Event of Default
and immediately upon the commencement of any action, suit or other legal proceedings
by Mortgagee to obtain judgment for the principal of, or interest under the Note and other
sums required to be paid by Mortgagor pursuant to any provision hereof or of the Loan
Agreement, or of any other nature in aid. of the enforcement of the Note or hereof or of
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the Loan Agreement, Mortgagor will (a) waive the issuance and service of process and
enter its voluntary appearance in such action, suit or proceeding and (b) if required by
Mortgagee, CONSENT TO THE APPOINTMENT OF A RECEIVER OR RECEIVERS
OF ALL OR PART OF THE MORTGAGED PROPERTY AND OF ANY OR ALL OF
THE RENTS IN RESPECT THEREOF. After the happening of any Event of Default
and during its continuance, or upon the commencement of any proceedings to foreClosc
this Mortgage or to enforce the specific performance hereof or in aid thereof or upon the
commencement of any other judicial proceeding to enforce any right of Mortgagee,
Mortgagee shall be entitled, as a matter of right, if they shall so elect, without the giving
of notice to any other party (unless such notice is expressly required by law) and without
regard to the adequacy or inadequacy of any security for the Indebtedness secured
hereby, forthwith either before or after declaring the unpaid principal of or other sums
evidenced by the Note to be due and payable, to the appointment of such a receiver or
receivers and such receiver or receivers shall have the powers set forth in Section 2.01.
Such appointment may be made either before or after any foreclosure sale without regard
to the solvency or insolvency of Mortgagor at the time of application for such receiver
and without regard to the then value of the Premises and Mortgagee may be appointed as
such receiver.
Section 2.06 Mortl!al!ee's Ril!ht to Possession. Notwithstanding the
appointment of any receiver, liquidator or trustee of Mortgagor, or of any of its property,
or of the Mortgaged Property or any part thereof, Mortgagee shall be entitled to retain
possession and control of all property now or hcreafter held hereunder.
Section 2.07 Remedies Cumulative. No remedy herein conferred upon or
reserved to Mortgagee is intended to be exclusive of any other remedy or remedies, and
each and every such remedy shall be cumulative, and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law, in equity or by statute. No
delay or omission of Mortgagee to exercise any right or power accruing upon any Event
of Default shall impair any such right or power, or shall be construed to be a waiver of
any such Event of Default or any acquiescence therein; and every power and remedy
given hereby to Mortgagee may be exercised from time to time as often as may be
deemed expedient by Mortgagee. Nothing herein or in the Note or the Loan Agreement
shall affect the obligation of Mortgagor to pay the principal of, and interest and other
sums on, the Note and the Loan Agreement in the manner and at the time and place
therein respectively expressed.
Section 2.08 Moratorium Laws. Mortgagor will not at any time insist upon, or
plead, or in any manner whatever claim or take any benefit or advantage of any stay or .
extension or moratorium law, any exemption from execution or sale of the Mortgaged
Property or any part thereof, wherever enacted, now or at any time hereafter in force,
which may affect the covenants and terms of performance hereof, nor claim, take or insist
upon any benefit or advantage of any law now or hereafter in force providing for the
valuation or appraisal of the Mortgaged Property, or any part thereof, prior to any sale or
sales thereof which may be made pursuant to any provision herein, or pursuant to the
decree, judgment or order of any court of competent jurisdiction; nor, after any such sale
or sales. claim or exercise any right under any statute heretofore or hereafter enacted to
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redeem the property so sold or any part thereof and Mortgagor hereby expressly waivcs
all benefit or advantage of any such law or laws, and covenants not to hinder, delay or
impede the execution of any power herein granted or delegated to Mortgagee, but to
suffer and permit the execution of every power as though no such law or laws had been
made or enacted. Mortgagor, for itself and all who may claim under it, waives, to the
extent that it lawfully may, all right to have the Mortgaged Property marshaled upon any
foreclosure hereof.
Section 2.09 Mort~a~or's Use and OccupancY after Default. During the
continuance of any Event of Default and pending the exercise by Mortgagee of its right to
exclude Mortgagor from all or any part of the Premises, Mortgagor agrees to pay the fair
and reasonable rental value for the use and occupancy of the Premises or any portion
thereof which are occupied by Mortgagor or any of its affiliates for such period and, upon
default of any such payment, will vacate and surrender possession of the Premises to
Mortgagee, or to a receiver, if any, and in default thereof may be evicted by any summary
action or proceeding for the recovery of possession of premises for non-payment of rent,
however designated.
Section 2.10 Re~ardin~ Defenses. No action for the enforcement of this
Mortgage or any provision hereof shall be subject to any defense which would not be
good and available to the party interposing the same in an action at law upon the Note.
Section 2.11 Expenses and Indebtedness. In any suit to foreclose this Mortgage
(including any partial foreclosure) or to enforce any other remedy of Mortgagee or the
Lenders under this Mortgage or the Note or other Loan Documents or otherwise in
respect of the Loan, there shall be allowed and included as additional indebtedness in thc
decree for sale or other judgment or decree all expenditures and expenses which may be
paid or incurred by or on behalf of Mortgagee or the Lenders for any and all reasonable
legal fees and expenses of Mortgagee, including, without limitation, any and all such
reasonable fees and expenses incurred in connection with litigation, mediation,
arbitration, other alternative dispute processes, administrative proceedings and
bankruptcy proceedings, and any and all appeals from any of the foregoing, appraiser's
fees. outlays for documentary and expert cvidence, stenographer's charges, publication
costs, and costs (which may be estimated as to items to be expended after cntry of the
decree) of procuring all such abstracts of title, title searches and examinations, title
insurance policies, and similar data and assurances with respect to title and value as
Mortgagee may deem re.asonably necessary either to prosecute such suit or to evidence to
bidders at any sale which may be had p\ll'suant to such decree the true condition of the
title to or the value of the Premises.
Section 2.12 Mort~a~ee's Ri~hts Concernin~ Application of Amounts
Collected. Notwithstanding anything to the contrary contained herein orin the other
Loan Documents, upon the occurrence of an Event of Default, Mortgagee may apply, to
the extent pennitted by law, any amount collected hereunder to principal, interest or any
other sum due under the Note or the Loan Agreement or otherwise in respect of the Loan
in such order and amounts, and to such obligations, as Mortgagee shall elect in its sole
and absolute discretion.
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ARTICLE III
MISCELLANEOUS
Section 3.01 Assilmment of Rents. This Mortgage constitutes a present,
absolute, unconditional and irrevocable assignment of all of the Rents now or hereafter
accruing, and Mortgagor, without limiting the generality of the Granting Clause hereof,
specifically does hereby absolutely, unconditionally and irrevocably assign, transfer and
. set over all of the Rents now or hereafter accruing to Mortgagee, and hereby gives to and
confers upon Mortgagee the right, power and authority to collect such Rents. Mortgagor
irrevocably appoints Mortgagee its true and lawful attorney at the option of Mortgagee at
any time to demand, receive and enforce payment, to give receipts, releases and
satisfactions and to sue, either in the name of Mortgagor or in the name of Mortgagee, for
all such Rents and apply the same to the Indebtedness secured hereby. The aforesaid
assignment shall be effective immediately upon the execution of this Mortgage and is not
conditioned upon the occurrence of any Event of Default hereunder or any other
contingency or event, provided, however,.that Mortgagee hereby grants to Mortgagor the
right and license to collect and receive the Rents as thcy become due, and not more than
one month in advance, so long as no Event of Default exists hereunder. Immediately
upon the occurrencc of any such Event of Default, Mortgagee shall have the right and
power (but not the obligation) to terminate, without regard to its security hereunder and
without notice to or demand upon Mortgagor, the foregoing right and license. Nothing
. contained in this Section 3.01 or elsewherc in this Mortgage, nor the exercise by
Mortgagee of any of its rights or remedies under this Section or elsewhere in this
Mortgage, shall be construed to make Mortgagee a mortgagec-in-possession, or otherwise
responsible or liable in any manner with respect to the Mortgaged Property or the use,
occupancy, enjoyment or operation of all or any portion thereof, unless and until
Mortgagee actually takes possession of the. Mortgaged Property, nor to obligate
Mortgagee to take any action or incur any expense or discharge any duty or liability
under or in respect of any Leases or other agreements relating to the Mortgaged Property
or any part thereof, nor shall appointment of a receiver for the Mortgaged Property or any
part thereof by any court at thc request of Mortgagee or by agreement with Mortgagor or
the entering into possession of the Mortgaged Property or any part thereof by such
receiver be deemed to make Mortgagec a mortgagee-in-possession or otherwise
responsible or liable in any manner with respect to the Mortgaged Property or the use,
occupancy, enjoyment or operation of all or any portion thereof.
Section 3.02 Security A\!1'eement.
(a) To the extent any of the Mortgaged Property is not real property under
applicable law, this Mortgage constitutes a security agreemcnt and/or a fixture filing, as
applicable, with respect to the Personal Property, with Mortgagor as the "debtor" and
Mortgagee as the "secured Dartv", under the Uniform Commercial Code as in effect from
time to time in each applicable jurisdiction. In addition to the rights and remedies
granted to Mortgagee by other applicable law or by this Mortgage, Mortgagee shall have
all of the rights and remedies with respcct to the Personal Property as are granted to 8
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secured party under the Code. Mortgagor will execute and deliver to Mortgagee, in form
and substance reasonably satisfactory to Mortgagee, all additional security agreements,
financing statements and/or other instruments that may from time to time be reasonably
required by Mortgagee to establish and maintain the validity and priority of the security
interest of Mortgagee, or any modification thereof, and wilI pay all reasonable costs and
expenses of any searches reasonably required by Mortgagee. Mortgagor hereby
irrevocably constitutes and appoints Mortgagee the attorney-in-fact of Mortgagor, to
execute, deliver and file with the appropriate filing officer or office such security
agreements, financing statements and/or other instruments as Mortgagee may request or'
require in order to impose and perfect the lien and security interest hereof more
specifically on the Personal Property or any fixtures. Upon Mortgagee's request,
Mortgagor shall promptly and at its expense assemble the Personal Property and make
the same available to Mortgagee at a convenient place acceptable to Mortgagee.
Mortgagor shall pay to Mortgagee on demand, with interest at the Prime Based Default
Rate from the date of expenditure, any and all reasonable expenses, including reasonable
attorneys' fees, incurred by Mortgagee in protecting its interest in the Personal Property
,or any fixtures and in enforcing its rights with respect thereto. Mortgagee may exercise
any or all of the remedies of a secured party available to it under the Uniform
Commercial Code as in effect from time to time in each applicable jurisdiction with
respect to such property, and it is expressly agreed that if upon default after the expiration
of any applicable grace or cure period Mortgagee should proceed to sell or otherwise
dispose of such property in accordance with the provisionS of the Uniform Commercial
Code as in effect from time to time in each applicable jurisdiction, then ten days' notice
by Mortgagee to Mortgagor shall be deemed to be reasonable notice Wlder any provision
of any such Code requiring such notice; orovided, however, that Mortgagee may at its
option dispose of such propertY in accordance with Mortgagee's rights and remedies with
respect to the real property pursuant to the provisions of this Mortgage, in lieu of
proceeding under any such Code. The proceeds of any such sale or disposition, or any
part thereof, may be applied by Mortgagee to the payment of the Indebtedness secured
hereby in such order and proportions as Mortgagee in its discretion shall deem
appropriate.
It is understood and agreed that, in the event that (i) Mortgagor intends' to
purchase any goods which may become fixtures attachcd to the Premises or any part
thereof and (ii) such goods will be subject to a purchase money security interest held by a
seller or any other party:
(x) Mortgagor shall, before cxecuting any security agreement or other document
evidencing such security interest, obtain the prior written approval of Mortgagee which
approval shall not be unreasonably withheld or delayed, and all requests for such written
approval shall be in writing and contain the following information:
(i) a description of the fixtures to be replaced, added to, installed or
substituted;
(ii) the address at which the fixtures will be replaced, added to,
installed or substituted; and
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(iii) the name and address of the proposed holder and proposed amount
of the security interest.
(y) Mortgagor's execution of any such security agreement or other
document evidencing such security interests without Mortgagee's prior written
approval shall be a material breach of Mortgagor's covenants and agreements
under this Mortgage, and shall, at the option of Mortgagee, entitle Mortgagee to
all rights and remedies provided for herein upon default. No consent by
Mortgagee pursuant to this subparagraph shall be deemed to constitute an
agreement to subordinate any right of Mortgagee in fixtures or other property
. covered by this Mortgage.
(b) If at any time Mortgagor fails after applicable notice and grace periods to
make any payment on an obligation secured by a purchase money security interest in the
Personal Property or any fixtures, Mortgagee, at its option, may at any time pay the
amolint secured by such security interest and the amount so paid shall be (i) secured by
this Mortgage and shall be a lien on the MongagedProperty having the same priorities as
the liens and security interests created by this Mortgage and (ii) payable on demand with
interest at the Prime Based Default Rate from the time of such payment.
(c) Mortgagor shaIl give advance notice in writing to Mortgagee of any
proposed change in Mortgagor's name, identity or limited partnership structure and will
cxecute and deliver to Mortgagee, prior to or concurrently with the occurrence of any
such change, all additional financing statements that Mortgagee may require to establish
and maintain the validity and priority of Mortgagee's security interest with respect to any
Mortgaged Property described or referred to herein.
(d) If Mortgagor enters into a separate security agreement with Mortgagee
relating to any of the Personal Property or fixtures, the terms of such security agreement
shall govern the rights and remedies of Mortgagee in. thc event. of default thereunder.
Any breach of or default under any such security agreement shaIl constitute an Event of
Default under this Mortgage.
(e) If the provisions of any Uniform Commercial Code are applicable to any
part of the Mortgaged Property which is sold in combination with or as a part of the
portion of the Mortgaged Property constituting real property, or any part thereof, at one
or more foreclosure sales, any notice requircd under such provisions shall be fully
satisfied by the notice given in execution of the Statutory Power of Sale with respect to
such portion of the Mortgaged Property constituting real property or any part thereof.
(f) A portion of the Mortgaged Property is or is to become Fixtures. To the
extent permitted by applicable law, Mortgagor agrees that the filing of this Mortgage in
the real estate records of the county in which the Mortgaged Property is located shall also
operate from time of filing as a fixture filing with respect to all goods constituting part of
the Mortgaged Property which are or are to become fixtures related to the real estate
described herein, For such purpose, the foIlowing information is set forth:
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(I) Name and Address of Mortgagor:
Shefanrrrarragon LLLP
c/o Tarragon South Development Corp.
200 East Las Olas Boulevard, Suite 1660
Fort Lauderdale, Florida 3330 I
Attn: James Cauley
with a copy to:
Tarragon South Development Corp.
200 East Las Olas Boulevard, Suite 1660
Fort Lauderdale, Florida 33301
Attn: Marcy Kamrnerman, Esq.
with a copy to:
Tarragon Corporation
1775 Broadway, 23n1 Floor
New York, New York 10019
Attn: Todd Minor
(2) Name and Address of Mortgagee:
Eurohypo AG, New York Branch, as Administrative Agent
for itself and other co-lenders
Head of Portfolio Operations
1114 Avenue of the Americas, 29lh Floor
New York, New York 10036
,with a copy to:
Eurohypo AG, Ncw York Branch
Head of Legal Department
1114 Avenue of the Americas, 29th Floor
New York, New York 10036
with a copy to:
Piper Rudnick LLP .
1251 Avenue of the Americas, 29th Floor
New York, New York 10020
Attn: John C. Phelan
(3) This document covers goods which are or are to become fixtures.
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(4) Mortgagor's tax identification number is 61.1474360.
(5) The record owner is Shefaorrrarragon LLLP.
Section 3.03 Subrol!ation. As additional security hereunder, Mortgagee shall be
subrogated to the lien, although released of record, of any and all encumbrances paid out
of the proceeds of the Indebtedness secured by this Mortgage.
Section 3.04 AOlllication of Certain PaYments. In the event that all or any part
of the Mortgaged Property is encumbered by one or more mortgages held by Mortgagee,
Mortgagor hereby irrevocably authorizes and directs Mortgagee to apply any payment
received by Mortgagee in respect of any obligation secured hereby or by any other such
mortgage to the payment of such of said obligations as Mortgagee shall elect in its sole
and absolute discretion (subject to any contrary provisions in the Loan Agreement or this
Mortgage), and Mortgagee shall have the right to apply any such payment in reduction of
principal and/or interest and in such order and amounts as Mortgagee shall clect in its
sole and absolute discretion without regard to the priority of the mortgage securing the
note so repaid or to contrary directions from Mortgagor or any other party.
Section 3.05 Severability. In thc event anyone or more of the provisions
contained herein or in the Note or the Loan Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but this Mortgage shall be
constIUed as if such invalid, illegal or unenforceable provision had never been containcd
herein or therein, orovided. however, that if such provision held to be invalid, illegal or
unenforceable rclates to the payment of any sum under the Note or any other material
monetary sum, then Mortgagee may, at its option, declare the Indebtedness and any other
sums secured hcreby to be immediately due and payable.
Section 3.06 Modifications and Waivers in Writinll. No provision hereof may
be changed, waived, discharged or terminated orally or by means except as provided in
Section 11.10 of the Loan Agreement Any agreement hereafter made by Mortgagor and
Mortgagee relating hereto shall be superior to the rights of the holder of any intervening
or subordinate lien or cncumbrance.
Section 3.07 Notices. All notices, demands; consents, approvals and statements
required or permitted hereunder shall be in writing and shall be given in the manner
provided for in the Loan Agreement.
Section 3.08 Successors and Assil!lls. All of the grants, covenants, terms,
provisions and conditions herein shall run with the land and shall apply to, bind and inure
to the benefit of, the Successors and assigns of Mortgagor and the endorsees, transferees,
successors and assigns of Mortgagee.
Section 3.09 Limitations on Interest. Regardless of any provision contained
. herein or in any of the other Loan Documents, the total liability for payments in the
nature of interest shall not exceed the applicable limits now imposed by any applicable
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state or federal interest rate laws to which Mortgagee and/or the Lenders may be subject
If any payments in the nature of interest, fees and other charges made hereunder or under
the Note or other Loan Documents are held to be in excess of the applicable limits
imposed by any such applicable state or federal interest ratc laws, it is agreed that any
such amount held to be in excess shall be considered payment of principal and other sums
(other than interest) under the Note and the indebtedness evidenced thereby shall be
reduced by such amount in the inverse order of maturity so that the total liability for '
payments in the nature of interest,. fees and other charges shall not exceed the applicable
limits imposed by any such applicable state or federal interest rate laws in compliancc
with the desires of Mortgagor, Mortgagee and the Lenders.
Section 3.1 0 Countemarts. This Mortgage may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to be an
original; and all such counterparts shall together constitute but one and the same
mortgage.
Section 3.1 I The Lenders' Sale of Interests in Loan. Mortgagor recognizes that,
subject to and in accordance with Section 11.12 of the Loan Agreement, any Lender may
selland transfer interests in the Loan to one or more participants or assignees and that all
documentation, financial statements, appraisals and other data, or copies thereof, relevant
to Mortgagor, Guarantor or the Loan, may be exhibited to and retained by any such
participant or assignee or prospective participant or assignee. Financial statements, and
any other material data of a confidential nature which is identified to the Lenders as such
in writing at the time of delivery by Mortgagor to the Lenders, which are delivered to
participants or assignees or prospective participants or assignees shall be delivered by the
Lenders on a confidential basis and on the condition that they be used for no other
purpose than in connection-with the Loan.
Section 3.12 No Merl!er of Interests. Unless expressly provided otherwise, in
the event that ownership hereof and title to the fee and/or leasehold estates in the
Premises encumbered hereby shall become vested in the samc person or entity, this
Mortgage shall not merge in said title but shall continue to be and remain a valid and
subsisting lien on said estates in the Premises for the amount secured hereby.
Section 3.13 No Credit For Taxes. Mortgagor shall not claim or demand or be
entitled to receive any credit or credits on the principal Indebtedness to be secured by this
Mortgage, or on the interest payable thereon, for any part of the taxes assessed against the
Premises and no deduction shall be made or claimed from the taxable value of the
Premises by reason of this Mortgage.
Section 3.14 No Consent to Contracts. Neither Mortgagee nor the Lenders
consents to any contract for labor or materials, and all contracts for labor or materials that
will be let by Mortgagor shall at all times be subordinate to this Mortgage.
Section 3.15 Business Loan. Mortgagor represents and agrees that the
obligations secured hereby: (a) constitute a business loan and (b) are exempted
transactions under the federal Truth-in-Lending Act (15 V.S.C. Section 1601, ~ ~.).
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Book22595/Paae4069
CFN#20040733100
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None of the forgoing is intended, however, to vitiate or in any way detract from the
intention of Mortgagor and Mortgagee to have the laws of-the State of New York apply
in all respects to the construction and enforcement of the Note and Loan Agreement, as
said intention is expressly set forth therein.
Section 3,16 CERTAIN WAIVERS. MORTGAGOR HEREBY EXPRESSLY
AND UNCONDITIONALLY KNOWINGLY, VOLUNTARILY AND
INTENTIONALL Y WAIVES, IN CONNECTION WITII ANY FORECLOSURE OR
SIMILAR ACTION OR PROCEDURE BROUGHT BY MORTGAGEE OR THE
LENDERS ASSERTING AN EVENT OF DEFAULT HEREUNDER, ANY AND,
EVERY RIGHT IT MAY HAVE TO (I) INJUNCTIVE RELIEF, (II) A TRIAL BY
JURY, (III) INTERPOSE ANY COUNTERCLAIM THEREIN, OTIIER THAN A
COMPULSORY COUNTERCLAIM AND (IV) HAVE THE SAME CONSOLIDATED
WITII ANY OTHER OR SEP ARA TE SUIT, ACTION OR PROCEEDING. NOTHING
IN THIS SECTION SHALL PREVENT OR PROHIBIT MORTGAGOR FROM
INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST
MORTGAGEE OR ANY LENDER WITH RESPECT TO ANY ASSERTED CLAIM.
Section 3.17 ADDITIONAL ACKNOWLEDGEMENTS AND WAIVERS. BY
EXECUTION OF THIS MORTGAGE, MORTGAGOR EXPRESSLY AND
UNCONDITIONALLY: (A) ACKNOWLEDGES TIIE RIGHT OF MORTGAGEE TO
ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE NOTE AND ANY
OTHER INDEBTEDNESS IN ACCORDANCE WITII THE LOAN DOCUMENTS
AND THE POWER GIVEN HEREIN. TO MORTGAGEE, TO TIIE EXTENT
PERMITTED BY LAW, TO SELL TIIE MORTGAGED PROPERTY BY
NONJUDICIAL FORECLOSURE UPON DEFAULT BY MORTGAGOR WITHOUT
ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE (INCLUDING,
WITHOUT LIMITATION, ANY NOTICE OF MORTGAGEE'S INTENTION TO
ACCELERATE OR NOTICE OF ACCELERATION) OTHER THAN SUCH NOTICE
(IF ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE
PROVISIONS OF TIIIS MORTGAGE OR BY APPLICABLE LAW; (B) WAIVES
ANY NOTICE OF MORTGAGEE'S INTENTION TO ACCELERATE; (C) WAIVES,
TO THE FULL EXTENT PERMITIED BYLAW, THE RIGHT TO PLEAD ANY
AND ALL STATUTES OF LIMITATION AS A DEFENSE TO ANY DEMAND
SECURED BY OR MADE PURSUANT TO THIS MORTGAGE; (D)
ACKNOWLEDGES THAT MORTGAGOR READ TIIIS MORTGAGE AND ANY
AND ALL QUESTIONS OF MORTGAGOR REGARDING THE LEGAL EFFECT OF
THIS MORTGAGE AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO
MORTGAGOR, AND MORTGAGOR HAS CONSULTED WITH COUNSEL OF
MORTGAGOR'S CHOICE PRIOR TO EXECUTING TmS MORTGAGE; AND (E)
ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF
MORTGAGOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND
WILLINGL Y BY MORTGAGOR AS A PART OF A BARGAINED-FOR LOAN
TRANSACTION AND THAT THIS MORTGAGE IS VALID AND ENFORCEABLE
BY MORTGAGEE AGAINST MORTGAGOR IN ACCORDANCE WITII ALL THE
TERMS, PROVISIONS AND CONDITIONS HEREOF.
-NEWY1:3844816,v9
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Book22595/Paae4070 CFN#20040733100
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Section 3.18 Powers a~d Duties of Administrative Al!ent. In accordance with
and subject to the provisions of the Loan Agreement, the Mortgagee, in its capacity as
Administrative Agent, has the fol1owing powers and duties:
(a) to hold, and serve as Mortgagee under, this Mortgage; to hold, and serve
as mortgagee under, any other real property granted to Mortgagee, in its capacity as
Administrative Agent, with Mortgage Covenants; to hold, and serve as secured party with
respect to, any other collateral pledged to Mortgagee, in its capacity as Administrative
Agent, as additional security pursuant to thc Loan Agreement. or any other Loan
Document; and to take such action with respect to the Mortgage and any such other
mortgage or collateral, as the Mortgagee deems advisable or in the best interest of the
Lenders.
(b) to execute, acknowledge, deliver. and file or record any and all
documents, instruments or certificates which Mortgagee deems advisable to perfect,
preserve, protect or confirm the lien or effectiveness of this Mortgage.
(c) to execute, acknowledge, deliver, and file or record any and all partial
releases, discharges or assignments of, or amendments to, this Mortgage and any other
mortgage or security interest held by Mortgagee, in its capacity as Administrative.Agent,
which the Mortgagee deems advisable or in the best interest of the Lenders.
Every instrument executed and acknowledged by a person who, according to the records
of the Registry in which this Mortgage is recorded, is Administrative Agent undcr thc
Loan Agreement (whether the original Administrative Agent described above or any
successor agent appointed under the Loan Agreement), shall be conclusive evid~ce in
favor of every person relying thereon or claiming thereunder that at the timc of delivery
of such instrument, the Loan Agreement was in full force and cffect and that the
Administrative Agent was duly authorized by the Lenders (or otherwise by the terms of
the Loan Agreement) to execute and deliver such instrument. In addition, any person
dealing with the Mortgaged Property or this Mortgage or the Administrative Agent may
always rely on a certificate signed and acknowledged by a person appearing from the
records of the Registry to be the Administrative Agent under the Loan Agreement as to
whether or not the Loan Agreement has been terminated or amended, as to the authority
of the Administrative Agent to take action with respect to the Mortgaged Property and
this Mortgage, or as to the existence or non-existence of any fact or facts which constitute
conditions precedent to acts by the Administrative Agent.
Section 3.19 Exculpation Section I 1.22 of the Loan Agreement is hercby
incorporatcd by reference.
Section 3.20 Governinl! Law. This Mortgage shall be governed by thc laws of
the State of Florida, without giving effect to the State of Florida's choice of laws
principlcs.-
Section 3.21 Condominium Documents.
-NF.WYI:3844816,v9
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365
BOok22595/PaQe4071
CFN#20040733100
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(a) Mortgagor covenants and agrees that from and after the submission of the
Premises to a condominium regime:
(i) Mortgagor shall perform all of Mortgagor's obligations under the
Condominium Documents, including, without limitation, payment when due of all
dues, common charges and assessments imposed under the Condominium
Documents. If Mortgagor fails to pay any of the same when due after all notice
(if required) and the expiration of any cure periods, Mortgagee may (but shall not
be obligated to) pay the same or any portion thereof and Mortgagor shall
reimburse Mortgagee promptly after written dcmand therefor, for all such
advances. Upon request, Mortgagor shall deliver to Mortgagee receipts for all
such payments made by Mortgagor.
(ii) Unless otherwise instructed by the Administrative Agent,
Mortgagor shall not, except after notice to Mortgagee and obtaining Mortgagee's
prior written consent:
(I) agree or consent to the abandonment or termination of the
Condominium;
(2) except to the extent permitted under the Loan Documents,
agree or consent to the modification, amendment or termination of the
Declaration, unless such vote, consent or exercise will not have a material
adverse effect on the Premises, or Mortgagor's rights under the
Condominium Documents; or
(3) cast any vote, give any consent or exercise any option or
other right it has under any of the Condominium Documents, unless such
vote, consent or exercise will not have a material adverse effect on the
Premises, or Mortgagor's rights under the Condominium Documents.
(b) During the continuance of an Event of Default, Mortgagee may, at
Mortgagee's option, exercise all consent rights, options, voting and other rights accruing
to Mortgagor under the Condominium Documents in the place and stead of Mortgagor
and in order to effectuate the foregoing, for purposes of this Section 3.2Hb) only,
Mortgagor hereby irrevocably appoints Mortgagee as Mortgagor's true and lawful
attorney, which appointment is coupled with an interest and is irrevocable.
(c) Mortgagor shall deliver to Mortgagee a true and complete copy of each
and every notice of default or noncompliance received by Mortgagor with respect to any
obligation of Mortgagor under the Condominium Documents.
Section 3.22 Future Advances. It is agreed that any additional sum or sums
advanced by the then holder of the Note secured hereby to or for the benefit of the
Mortgagor, whether such advances are obligatory or are made at the option of the
Mortgagee, or otherwise, at any time within twenty years from the date of this Mortgage,
or within such lesser period of time as may be provided hereafter by law as a prerequisite
-NEWYI:3S44SI6.v9
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Book22595/P~np.4n7?
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for the sufficiency of actual notice or record notice of the optional future and additional
advances as against the rights of creditors or subsequent purchasers for 'valuable
consideration, with interest thereon at the rate agreed upon at the time of each additional
loan or advance, shall be equally secured and have the same priority as the original
indebtedness secured hereby and be subject to all of the terms and provisions of this
Mortgage, whether or not such additional loan or advance is evidenced by a note of the
Mortgagor and whether or not identified by a recital that is secured by this Mortgage;
provided, however, that the aggregate amount of the principal indebtedness. outstanding
and so secured anyone time shall not exceed Eighty Million and 00/100 Dollars
($80,000,000) plus interest and disbursements made for the payment of taxes, levicsor
insurance on the property covered by this Mortgage and provided further that it is
understood and agreed that this Future Advance provision shall not be construed to
obligate the Mortgagee to make any such additional loans or advances. Nothing herein
shaU obligate the Mortgagee to loan the Mortgagor at anyone time a sum in excess of the
face amount of the Note. It is further agreed that any additional note or notes executed
and delivered under this Future Advance provision shall be included in the word ''Note''
or "Notes" ,whether it appears in the context of this Mortgage.
Section 3.23 Non-Homestead Prooertv. The Mortgagor hereby further warrants
and represents that the Premises is not homestead property. Neither Mortgagor nor any
family member, if Mortgagor is an individual, resides at the Premises.
[Signature on next page]
-NEWYI:l844816,v9
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Book22595/PaQe4073
CFN#20040733100
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IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered
by Mortgagor, intending the same to take effect as a sealed instrument.
SIGNED SEALED AND DELIVERED
7!Xa:~
Print N~ '7f.i1a,~...
~d1RQ ~
t Name ~ ~~ ~..k C(
.-.MOrtgage
SHEF AORlr ARRAGON LLLP, a Florida
limited liability limited partnership
By: Aventura Tarragon GP, LLC, a
Florida limited liability company, its
sole general partner
by: Tarragon South D velopment
Corp" a N evad corporation, its
sole en
/.G-y :JR.
Corporate Seal
[ ]
368
Book22595/Paoe4074 CFN#20040733100
D<>no It n "'; A')
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TABLE OF CONTENTS
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The foregoing instrument was acknowledged before me this ~y of August, 2004, by
-:l ~ ,('.r (.t. 0.... -t" of Tarragon South Development Corp,. a Nevada
corporation, 0 behalf of such entity. He is either personally known to me, or has
produced a 0 driver's license as identification.
~
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(Notarial Seal)
-Monpgc
NEWYI ~aS36Sl.yl I
k~h(\%!~.:~(,
NOTARY PUBLIC
My Commission Expires:
'-";0". _s..._
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369
Book22595/Paae4075 CFN#20()407~~ 1 nn
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OR 8K 22595 PG 4076
LAST PAGE
SCHEDULE A
LEGAL DESCRIPTION
Parcel I: (Fee Parcel)
Tract D of ADMIRAL'S PORT SECTION ONE, according to the plat
thereof, recorded in Plat Book 113, Page 51, Public Records of Miami-
Dade County, Florida.
ParccllI: (Easement Parcel)
IngresslEgress and Utility Easement set forth as Tract E on ADMIRAL'S
PORT SECTION ONE, recorded in Plat Book 113, Page 51, portions of
which are also described as Private Easement' No. I on WILLIAMS
ISLAND SECTION ONE, recorded in Plat Book 120, Page 43, and
Private Easement No. I on WILLIAMS ISLAND AMENDED, recorded
in Plat Book 126, 'Page 49, all of the Public Records of Miami-Dade
County, Florida, LESS AND EXCEPT the right-of-way for N.E. 183rd
Street.
NEWY1:3589905:5:121201ll1
- 41 -
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Book22595/PaQe4076 CFN#20040733100
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IN THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
Case No.
Lower Tribunal Resolution No. 2005-
48
SHEFAORffARRAGON, LLLP,
a Florida limited liability limited
partnership
Petitioner,
vs.
THE CITY OF A VENTURA, a
Florida municipal corporation, et al.
Respondents.
/
MOTION FOR STAY OF CERTIORARI PROCEEDINGS
PENDING OUTCOME OF RELATED LITIGATION
The Petitioner, SHEFAORffARRAGON, LLLP, a Florida limited liability
limited partnership ("Petitioner"), moves the Court to stay the present Certiorari
proceedings until the conclusion of related litigation which may render the present
Certiorari proceedings moot. In support of this Motion the Petitioner would show
the Court as follows:
433
MIAMI 934130,2 7592420873
1On/05 12:38 PM
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE eOULEVARD, SUITE 2!5oo . MIAMI, F"LORIDA 33131-5340
-..
The Petition for Writ of Certiorari in this cause was filed in an abundance of
caution in the event that related proceedings do not render the present Certiorari
proceedings moot. See copy of Circuit Court Complaint (without attachments)
attached hereto as Exhibit "A".
This case involves an 8.77 acre parcel of property in the City of Aventura
known as Lincoln Pointe. The Petitioner expended $47 million to acquire the
property in August, 2004. Petitioner acted in good faith reliance upon the prior
rezoning of the property by the City and upon a letter of the City of Aventura dated
April 7, 2004, confirming that the property "is located in the RMF4 Zoning District
which allows a maximum of 60 dwelling units per acre." A. 151-152.\ After
.~ acquiring the property, Petition expanded additional sums in excess of$1.7 million
while seeking site plan approval for redevelopment of an "as of right project". 2
The site plan approval process was subjected to a series of inordinate and
unexplained delays by the City. The Petitioner believes the delays were in bad
faith, intended to prevent the Petitioner from obtaining the site plan approval to
which it was entitled so that the City could impose a moratorium and halt the
1 The abbreviation "A" followed by page number refers to the Appendix
accompanying the Petition in this cause.
~
2 An "as of right project" is one that can be administratively approved without any
required variances and/or any discretionary approvals by the City Commission
which would require a public hearing.
434
MIAM\934130,27592420873
10/7/05 12:38 PM
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE eOULEvA~O. SUITE 2500 . MIAMI, FLORIDA 33131-5340
4
approval of the project and its development. The City imposed that moratorium
pursuant to Ordinance No. 2005-07, adopted June 7, 2005. A.86-93.
Although the moratorium ordinance contained a purported process for
affected property owners to establish an estoppel, or "vested right," to develop or
redevelop, the Petitioner believes that the City's ordinance is defective for a
multitude of reasons. These reasons include, inter alia, the patent failure of the
City to incorporate the very elements of vested rights/estoppel which the City's
own attorney stated must be included within the ordinance. Although the
Petitioner filed a "vested rights" application, and an appeal to the City Commission
from an adverse decision of the City Manager, the Petitioner did so by special
~ appearance, under protest, reserving any and all rights, objections and claims,
including those claims set forth in the related potentially dispositive de novo
litigation. A. 3-4.
The related litigation in the Circuit Court includes a claim that the City
Commissioners involved in this quasi-judicial matter engaged in prohibited ex
parte communications about this matter. In the case of Jennings v. Dade County,
589 So. 2d 1337 (Fla. 3d DCA 1991) the court held that where it is alleged in de
novo proceedings that there were ex parte communications with the quasi-judicial
tribunal, the affected party cannot be required to seek relief under common law
~
certiorari, The court held:
435
MIAMI 934130,2 7592420873
1On/05 12:38 PM
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH 81SCAYNE BOULEVARD, SUITE 2500 . MIAMI, F'LORIOA 33131-5340
.J
~
[S]ince the content of ex parte contacts is not part of the existing
record, such review would prohibit the ascertainment of the contacts'
impact on the commission's determination, This order [requiring
certiorari proceedings] has the effect then of so radically altering the
relief available to Jennings that it is the functional equivalent of
requiring him to litigate in a different forum. Thus, Jennings' timely
petition activates our COmmon law certiorari jurisdiction because the
order sought to be reviewed (a) constitutes a departure from the
essential requirements of law, and (b) requires him to litigate a
putative claim in a [certiorari] proceeding that cannot afford him
the relief requested and for that reason does not afford him an
adequate remedy. See Tantillo v. Miliman, 87 So.2d 413 (Fla. 1956);
Norris v. Southern Bell Te. & Tel. Co., 324 So.2d 108 (Fla. 3d DCA
1960).
Id at 1340
Accordingly, we hold that the allegation of a prejudicial ex parte
communication in a quasi-judicial proceeding before the Dade County
Commission will enable a party to maintain an original equitable
cause of action to establish its claim. Once established, the offending
party will be required to prove an absence of prejudice.
Id at 1341-42.
Upon the aggrieved party's proof that an ex parte contact occurred, its
effect is presumed to be prejudicial unless the defendant proves the
contrary by competent evidence.
Id at 1341.
The related de novo litigation includes, inter alia, a count alleging a denial
of due process by virtue of prejudicial ex parte communications. Under Jennings,
the Petitioner cannot be limited to pursuing the remedy of common law certiorari.
~ Both the "Jennings" grounds and other grounds for relief that have been, or will be
MIAMI 934130,2 7592420873
lOn/OS 12:38 PM
436
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 . MIAMI, FLORIDA .33131-5340
~
~
~
set forth in the de novo litigation may render the present certiorari proceedings
moot. Separate de novo litigation also includes, or will include, claims that the
moratorium ordinance is constitutionally defective, Like the Jennings claim based
upon ex parte communications, the direct challenges to the facial constitutionality
of the City's moratorium ordinance, including the purported "vested rights" process
contained therein, may not come within the scope of certiorari review of a quasi-
judicial decision.3
While it is necessary for Petitioner to bring the present certiorari proceedings
in an abundance of caution, these proceedings should not be required to go forward
unless and until the Petitioner is finally denied relief in the de novo proceedings.
To go forward at this point would result in the expenditure of judicial resources, as
well as the resources of the Petitioner and the City, in a matter that may well
become moot as a result of the de novo litigation. Under these circumstances this
Court should either stay these proceedings, or hold them in abeyance, until the
conclusion of the de novo litigation. See Solomon v. Gordon, 47 So. 2d 710 (Fla.
1941 ).
3
See Miami-Dade County v, Omnipoint Holdings, Inc" 853 So.2d 195, 198-99
(Fla. 2003).
MIAMI 934130,2 7592420873
lOn/OS 12:38 PM
437
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
ZOO SOUTH BISCAYNE BOULEVARD, SUITE 2500 . MIAMI, F"LORIOA 33131-5340
-.
.
~
Respectfully submitted,
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Boulevard, Suite 2500
Miami, Florida 33131-5340
Attorneys for ICY Limited, Inc.
Telephone: 305-374-7580\
By: 'pa ~~A/1 ___
~~tanley B. Price
Florida Bar No. 143648
By:
MIAMI 934130,2 7592420873
10/7/0512:38 PM
'-7 ~
. / / '
//~ . #~
Rubert L. Krawcheck
Florida Bar No. 128019
438
BILZIN SUMBE:RG BAE:NA PRICE: & AXE:LROD LLP
~oo SOUTH BISCAYNE BOULEVARD, SUITE 2500 . MIAMI, F'LORIOA 33131-5340
('""
'"
r-
~
,....
""
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
mailed this M day of ~'()€.( ,2005 to: David M. Wolpin, Esq., Attorney
for the City of Aventura, Weiss Serota & Helfman, 2665 S. Bayshore Drive, Suite
420, Miami, Florida 33133 and Keith Marshall, Esq., Attorney for Biscayne Cove
Condominium Association, Concord Center, 2999 N.E. 191 Street, Suite 805,
Aventura, Florida 33180.
/~~~d/#
R66ert L. Krawcheck
-...
439
M1AM1934130,27592420873
IOn/OS 12:38 PM
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH SISCAYNE BOULEVARD, SUITE 2500 . MIAMI, FLORIOA 33131-5340
/~ 'R)r----.. .
, i ,1"\ ; r-'\ ,,\\ ,7
.' " I!Q.;.V,
"'::::::7~U' U'
'.
IN THE CIRCUIT COURT OF THE 11 TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL ruRISDICTION DNISION
05-20125 CJr lp
CASE NO.
SHEFAORfTARRAGON, LLLP,
a Florida limited liability limited partnership.
Plaintiff,
v.
-~_.-,-
CITY OF A VENTURA, FLORIDA AND
THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA
I
-\
1
OR\G\N~'-
f\LEO
tl Cl .. 7 'l.~11S
~V'l:'f 'RU'IDI
<Ol~ -
Defendant.
..
COMPLAINT
Plaintiff, SHEFAORlTARRAGON, LLLP, a Florida limited liability limited
partnership, sues Defendants, THE CITY OF A VENTURA FLORIDA, (the "City"),
AND THE CITY COMMISSION ("Commission"), and states as follows:
1. This is an equitable action brought pursuant to the holding in the cause
styled Jennings v. Dade Countv, 589 So. 2d 1337 (Fla, 3Td DCA 1991). A true and
correct copy is attached hereto as Exhibit "A." and made a part hereof.
2. The Plaintiff is a limited liability limited partnership and is the owner of
real property located within the City, commonly referred to as "Lincoln Pointe", located
at 17900 N .E, 31st Court (the "Property"),
3. On or about June 7, 2005, the City, acting through its duly elected
~
~
Commission, enacted Ordinance No. 2005-07, which imposed a moratorium directly
impacting the Property, A true and correct copy is attached hereto as Exhibit "B",
440
{91451OOO18214,1}
HALL, JOSEPH AND LAMB, P.A., PENTHOUSE, 1428 BRICKELL AVENUE, MIAMI, FLORIDA 33131-3491 .TEL. (305) 374-5030. FAX (305) 374-5033
~
~
~
4, Pursuant to Section 4(B) of the Moratorium Ordinance, the Plaintiff filed a
"Vested Rights" application with the City Manager. A true and correct copy of the
Vested Rights Application is attached hereto as Exhibit "C."
5. The City Manager, without notice or hearing, issued a denial of the
Plaintiff's Vested Rights Application on August 17, 2005. See Exhibit "D" attached
hereto.
6, Pursuant to Section 4(B) of the Moratorium Ordinance, the Plaintiff, on
August 18, 2005 filed an appeal of the City Manager's denial of vested rights to the City
Commission, (See Exhibit "E" attached hereto),
7, The appeal of the City Manager's decision, pursuant to the Moratorium
Ordinance, constitutes a quasi-judicial proceeding before the Commission.
8, On September 6, 2005, the Commission conducted a quasi-judicial
hearing and denied the vested rights application of the Plaintiff herein pursuant to
Resolution 2004-48 adopted September 6, 2005, filed September 7, 2005. (See Exhibit
"F" attached hereto),
9, Pursuant to Section 34-34 of the City Code, the Commission is required to
place on the public record of the quasi-judicial hearing, all ex parte communications
relating to the specific issue pertaining to the hearing,
10, The entire Commission, when asked by the City Attorney, indicated that
no ex-parte communications whether oral or written, were engaged in prior to the quasi-
judicial hearing.
11. The City Commission was not under oath when asked by the City
Attorney, as to ex-parte communications.
441
{9145\OOO18214.1}2
HALL. .JosePH AND LAMB. P.A., PENTHOUSE:. 1426 BRICKELL AVENUE, MIAMI, FLORIDA 33131-3491 -TEL. (.305) 374-5030' FAX (.:305) 374-5033
'~
COUNT I - JENNINGS VIOLATION
12. Plaintiff re-aIleges and incorporates paragraphs 1 through 11.
13. Ex-parte communications, prior to a quasi-judicial proceeding are
inherently improper and are anathema to quasi-judicial proceedings.
14. Ex-parte communications prior to quasi-judicial proceedings are denials of
due process pursuant to the Federal and Florida Constitutions.
15, Upon information and belief, the members of the Commission engaged in
ex-parte communications with:
a, neighboring property owners and/or residents who reside in close
~
proximity to the Property;
b, the City Manager and/or his staff; and
C, feIlow members of the Commission.
16. Said ex-parte communications prejudiced the Plaintiff in the quasi-judicial
proceeding, described in Paragraph 8 herein,
17. The City Commission remains prejudiced in this matter.
WHEREFORE, Plaintiff prays for an Order of this Court finding the Defendant
City and/or Commission and/or individual Commissioners engaged in ex-parte
communication, which resulted in prejudice to the Plaintiff. The Court should strike
Resolution No. 2005-48 and provide for a de novo judicial determination of Plaintiff's
right to vested rights/estoppel.
~
..
442
{9145\ooo18214,l} 3
HALL, JOSEPH AND LAMB, P.A., PENTHOUSE, 1426 BRICKE.LL. AVENUE, MIAMI, FL.ORIDA 33131-3491 . Te::L.. (305) 374-5030' FAX (305) 374-5033
'~
COUNT II - SUNSHINE LAW VIOLATION
18.
Plaintiff re-alleges Paragraphs 1 though 17 herein.
19.
Pursuant to Florida Statutes, Chapter 119, the Government in the Sunshine
Law, it is illegal for two or more elected officials to engage in communications directly
or indirectly affecting matters to come before its governmental body for official action,
20. Upon information and belief, two or more Commissioners engaged in
discussions and had communications prior to the September 6, 2005 meeting, which
discussions and communication related to the quasi-judicial hearing described in
Paragraph 8 herein.
WHEREFORE, Plaintiff prays for an Order of this Court finding a Sunshine Law
~
Violation occurred by and between two or more Commissioners of the City and imposing
penalties as provided by law,
COUNT III - INVALIDITY OF SECTION 34-34 OF THE
CODE OF THE CITY OF A VENTURA
21. Plaintiff re-alleges Paragraphs 1 through 20 herein.
22, The holding in Jennings v. Dade County. supra, determined that ex-parte
communications are inherently improper and are an anathema to quasi-judicial hearings.
23, Section 34-34 of the Code of the City authorizes the Commission to
communicate with the City Manager and/or his staff during the pendancy of a quasi-
judicial proceeding,
24, Upon information and belief, both before and subsequent to the decision
.-"
J
'.
by the City Manager on August 17, 2.005 and prior to the Commission meeting of
443
{9145\OOO18214,1}4
HALL, JOSEPH AND LAMB. P.A.. PENTHOUSE, 1428 BRICKE:LL AVENUE, MIAMI. FLORIDA 33131-3491 .TEL. (305) 374-5030. FAX (305) 374-5033
r"\
'"
September 6, 2005, members of the Commission engaged in discussions with the City
Manager, relating to the vested rights application and to his decision of August 17,2005.
25. The discussions described in Paragraph 24 are in direct contravention of
the rule delineated in J ermings, supra,
26. The discussions described in Paragraph 24 were not disclosed on the
public record, nor were they made public by the Commission at the September 6, 2005
meeting of the City Commission.
27. Section 34-34 of the City Code constitutes a violation of due process and
is an unlawful attempt by a legislative body to alter the requirements of due process.
WHEREFORE, Plaintiff seeks an Order of this Court declaring that Section 34-34
of the Code of the City is unconstitutional and an improper interference with the due
('"\.
W
process rights of the Plaintiff and constitutes an illegal infringement upon the powers of
the judiciary.
Respectfully submitted,
HALL, JOSEPH, AND LAMB, P.A.
1428 Brickell Avenue, Penthouse
Miami, Florida 33131
Telephone: (305) 374-5030
Facsimile: (05) 374-5033
By: ?~~c:~
ANDREW C, HALL
Florida Bar No, 111480
f"""
..,
444
{9145\OOOI8214.1 }5
HALL. .JOSEPH AND LAMB, P.A., PENTHOUSE:, 1428 BRlCKE:LL AVENUE, MIAMI, FLORIDA 33131-3491 .TEL. (305) 374-5030. FAX (305) 374-5033
LINCOLN POINTE
HEARING NOTEBOOK FOR 2/2/06
STANLEY B. PRICE, ESQ.
ROBERT L. KRA WCHECK, ESQ.
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE. BOULEVARD, SUITE 2500 . MIAMI, FLORIDA 33131-5340
._m__.__~~___.._._..__.....~_..
I
BILZIN SUMElERG BAENA PRICE & AXELROD LLP
A PARTNERSHIP OF PROFE.SSIONAL. ASSOCIATIONS
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500. MIAMI, FLORIDA 33131-5340
TELEPHONE: (30S) 374-7580
E.-MAIL: INFO@B1LZIN.COM . WWW.BILZ1N.COM
STANLEY B. PRICE, P.A.
OIRECT DIAL. (305) 350-2374
.01RECT FAX (305) 351-2204
E.-MAIL sprice@bllzln.com
January 27,2006
VIA HAND DELIVERY
David Wolpin, Esq.
Weiss Serota Helfman et al.
2665 South Bayshore Drive
Suite 420
Miami, Florida 33133
Re: Settlement Agreement: Shefaor/Tarragon, LLLP and City of Aventura
DearMr. Wolpin:
This letter accompanies six (6) original sets ofthe captioned Settlement Agreement being
hand delivered to you today by courier. lfthese documents meet your approval please have them
executed, place you own initial next to mine in the lower right hand side of each page to the
contract and to all exhibits and return four (4) copies to the undersigned via courier.
Thank you for your cooperation in this matter.
Very truly yours,
Stanley
SBP/jfb
SETTLEMENT AGREEMENT
SHEFAOR/TARRAGON, LLLP, a Florida Limited Liability Limited Partnership (the
"Developer") with joinder by A VENTURA TARRAGON GP, LLC, a Florida Limited Liability
Company, AVENTURA TARRAGON LP, LLC, a Florida Limited Liability Company,
SHEFAOR BH, LLC, a Florida Limited Liability Company, TARRAGON SOUTH
DEVELOPMENT CORP., a Nevada corporation, (collectively and individually referred to
herein as the "Joining Parties"), and the CITY OF A VENTURA~ FLORIDA, a Florida municipal
corporation (the "City"), hereby enter into this Settlement Agreement (the "Agreement"),
effective as of January 19, 2006, as follows:
RECITALS
(A)
(B) below.
1.
Developer is the owner of the Property which is described in paragraph
2. City is a duly organized Florida municipal corporation.
3. The Joining Parties are each an entity which is listed and included herein
as a signatory to this Agreement for the purpose of binding that entity to the provisions of
paragraph 13 herein.
(B) Developer is the current fee simple owner oftitle in and to that certain 8.77 acre :r
parcel located at 17900 Northeast 31st Court, in the City of Aventura, Florida, which parcel is
currently developed as an 285 unit apartment complex built in 1991, commonly referred to as
"Lincoln Pointe", and is described on Exhibit "A", a copy of which is attached hereto and by this
reference is made a part hereof (the "Property");
TERMS OF SETTLEMENT
I. Each of the above-stated Recitals is hereby adopted and confIrmed.
2.
(a)
Developer shall, in accordance with Section 3 "Waivers" of the
Moratorium Ordinance, file a waiver application (the "Waiver Application") with the City, in
order to enable the Developer to be authorized to implement the redevelopment described in
paragraphs 7 and 8 herein, subject to the approval of the Waiver Application by City
Commission.
(b) Developer recognizes that in order for the Waiver Application to be
granted, substantial competent evidence must be presented to the City Commission which
demonstrates that the specific use or activity requested by the Waiver Application will not
detrimentally affect the preparation and implementation of the Growth Management Regulations
(as defmed in the Moratorium Ordinance), will be compatible with surrounding land uses, and
will not impair the public health, safety or welfare.
3. The parties recognize that the consideration of the Waiver Application for a
waiver of the provisions of the temporary moratorium, as established by the Moratorium
Ordinance, constitutes a quasi judicial action and decision of the City Commission, and that
accordingly, the City Commission does not hereby commit itselfto approve or grant the Waiver
Application, but instead simply agrees to process and consider said Waiver Application in
accordance with the applicable requirements of law as provided by the City Moratorium
Ordinance criteria pertaining to the grant or denial of a Waiver Application. The decision to
grant or deny the Waiver Application shall be based solely upon the substantial competent
evidence presented during the course of the quasi judicial proceedings in accordance with
Section 34-31 of the City Code.
4. (a) In the event that the Waiver Application is granted by the City
Commission, the City shall provide for site plan and building permit plan review by the City on
.. -....._-,.---_._.._'_...._.._-~....~~"._,...,.,..........,
an expedited basis at no additional supplemental charge to Developer. This shall not impair or
waive the normal site plan review fees and building permit plan review and inspection fees, but
shall solely waive the special charge which is generally imposed for expedited review by the
City. Further, in the event that the Waiver Application is granted, City commits itself to
expeditiously process, consider, and issue decisions regarding any necessary additional City
approvals, in accordance with law.
(b) Further, in the event that the Waiver Application is approved by the City
Commission, all requests for, and issuance of, City development approvals shall be in
accordance with the City's Land Development Regulations in effect at the time of the filing of
the Waiver Application.
(c) In the event that the Waiver Application is approved by the City
Commission, it is recognized that the preliminary site plan submitted in connection with the
Waiver Application is necessarily conceptual, subject to additional detail being provided by
Developer and to Developer's right to make revisions, and that the Waiver Application site plan
reflects development that, if the Waiver Application is granted, is permissible in accordance with
the City's land development regulations which will be applicable as specified in this Agreement.
Accordingly, if the Waiver Application is granted, the City agrees that in reviewing subsequent
revisions to the preliminary site plan and the details thereof, the Developer shall be allowed
reasonable flexibility within the parameters of the applicable land development regulations
which are specified herein, and that the City shall process all applications which are aimed at
finalizing the site plan in an expedited manner without supplemental charges for expedited
review. However, nothing in this paragraph (c) shall be construed in any manner which enables
Developer to exceed the building height and number of dwelling units which are expressly stated
in this Agreement.
5. Upon final approval, if any, of the Waiver Application by the City Commission,
so that the redevelopment of the Property may occur in accordance with the provisions described
herein, the ordinances of the City, and applicable law, and following the expiration of the time
for an appeal from the grant of the Waiver Application by any interested party (or, if an appeal or
other contest is pursued, upon the fmal disposition thereof), the Developer and the City shall file
a joint motion for a further stay of the Appellate Litigation pending the issuance, in accordance
with law, of a City building permit for the foundation of the Tower. Upon the granting of the
further stay, the Developer shall me a Notice of Dismissal of the Original Litigation without
prejudice. Except as specified in paragraph 12, each party agrees to bear its own attorney's fees
and costs. Upon issuance of the City building permit for the. foundation of the Tower, the
Developer shall file a Notice of Dismissal of the Appellate Litigation, with prejudice. Each party
agrees to bear its own attorney's fees and costs, except as specified in paragraph 12. The term
"appeal" as used inthis Agreement includes certiorari and other appellate judicial review.
6. In the event that the Waiver Application is not granted, or in the event that the
Waiver Application is granted but does not become fmal because of adverse court action, the
parties shall b.e permitted to pursue any rights and remedies they possess, unless otherwise
specified herein.
7. The redevelopment of Lincoln Pointe (the "Development") to be constructed shall
not exceed four hundred sixty (460) dwelling units of which number a total of at least forty four
(44) shall be townhouse units. None of the townhouse units shall be located in the four hundred
si1.'teen (416) unit Tower unless directly accessible from an e1.'terior, non-lobby of Tower
entrance. Townhouses also may be situated abutting the outside of the base or lower levels of
the Tower (and be directly accessible from an exterior, non-lobby of Tower entrance) or as an
adjunct of the parking garage, but not as free-standing buildings. All of the aforementioned
townhouse units, whether or not within the Tower, may each have up to a three level floor plan.
8. The single tower building (the "Tower") to be constructed at the Development
shall not exceed a height of twenty-eight (28) stories, but may reach an overall height of not
greater than three hundred fifteen (315') feet including all habitable spaces, mechanical and other
building equipment, apparatus and non-habitable spaces or architectural features, so as to achieve
a height which is compatible with development in the vicinity. It is recognized that the twenty
eighth (28th) story of the Tower may consist of penthouse units which may each have a two level
floor plan. Further, it is recognized that other stories of the Tower may have units which have a
two level floor plan.
9. In the event that the Waiver Application is granted and becomes fmal and not
subject to appeal or further appellate review, Developer agrees that it shall not seek to obtain any
conditional use approval under the City's presently pending amendments to the City's Land
Development Regulations, in the event of the adoption of said pending amendments to the Land
Development Regulations, for the purpose of establishing a height or density which exceeds the
height and density which is expressly set forth in this Agreement.
10. (a) In order to facilitate the acquisition of the necessary rights, right of way, or land
from the owners of that certain one-half (1/2) acre'"' of property (the "Easement Area"), as
described on Exhibit "B", a copy of which is attached hereto and incorporated herein, the City
shall diligently utilize its good faith reasonable efforts to obtain the right to enable the Easement
Area to be converted to a public road and to be improved as described in paragraph 11 below.
(b) This obligation of the City, as described in paragraph 10(a) above, shall be
subject to the condition precedent that the Developer first deposits with the City, pursuant to an
escrow agreement which is approved by the City Attorney and Developer's Attorney, the sum of
One Hundred Thousand ($100,000.00) Dollars with a mutually agreeable local escrow agent, to
be utilized by the City for obtaining any necessary City interest in the Easement Area.
(c) Developer shall, at no charge to City, convey any of its interests in the Easement
Area to City to the eA1:ent necessary .to establish a public road once all other necessary interests
are obtained by City. The instrument of conveyance used by Developer may provide for a
reversion of Developer's interest if the Improvements described in paragraph 11 are not
implemented and completed by City in accordance with this Agreement.
(d) In the event that it is not necessary for the City to utilize all of these escrow
funds for such purpose, City shall utilize the escrow funds for the benefit of the Media Center at
City's Charter School.
11. (a) Developer shall diligently pursue, and shall use its reasonable good faith
efforts to obtain, any and all necessary governmental approvals (the "Approvals"), including but
not limited to the approval of the Miami-Dade County DERM, for the upgrade and improvement
(the "Improvements") to the Easement Area so as to facilitate the service of the Easement Area
as the access road for the Development and for other existing developments in the vicinity. The
Improvements shall include widening of the road surface, installation of lighting, upgrade of
drainage, installation of a sidewalk and safety barriers as may be required, any necessary
modification of the DERM wetland conservation easement, all as described in the preliminary
plan (the "Plan"), a copy of which is attached hereto as Exhibit "C" and incorporated herein,
subject to the City Manager's and DERM's approval of the final Plan. The Approvals shall be
~ __'_"_______.~___'".___._.,_.~_.,..._",v."
sought by Developer for a period of no less than two hundred seventy (270) days following the
date that the Waiver approval becomes final and is no longer subject to appeal or further
appellate review. The City shall cooperate with the efforts of Developer in obtaining the
necessary Approvals.
(b) If the Easement Area is obtained by City and the Approvals are obtained by
Developer, the Improvements shall be implemented at the sole reasonable cost and expense of
Developer by City's construction of the Improvements prior to the issuance of a Final Certificate
of Occupancy for the Development. Alternatively, by mutual written agreement, Developer and
City, acting through the City Manager, may provide for the Improvements to be constructed
directly by Developer through Developer's contractors, pursuant to the fmal Plan. Developer
shall be responsible to provide, at its sole cost and expense, all design, planning, surveying and
engineering work for the Improvements. In the event that the Waiver Application is granted, the
City shall not take any action concerning the acquisition of the Easement Area or the
implementation of the Improvements of the Easement Area which would cause the authorized
Development of the Property not to comply with all applicable City codes, rules or regulations.
(c) In order to secure its commitments hereunder concerning the Improvements,
Developer shall provide to City a letter of credit for the benefit of the City in an amount which is
not less than Three Hundred Fifty Thousand ($350,000.00) Dollars. Developer shall be
responsible for any reasonable additional cost which is necessary to implement the
Improvements in accordance with the fmal Plan. In the event that the reasonable costs of the
Improvements exceed Three Hundred Fifty Thousand ($350,000.00) Dollars, the Developer shall
increase the Letter of Credit to include said costs. Upon completion of the Improvements and
the fulfillment of Developer's obligation to fund the Improvements or in the event, consistent
. '_-,--~.--..-- ..-~--~-_.- ----_...._,---'.-----_._--,--=-..."~
with this Agreement, the Improvements are not constructed, the Letter of Credit shall terminate,
and that fact shall not interfere with Developer's ability to obtain all Development approvals.
(d) In the event that the Approvals are not obtained by Developer, the City shall, at
the City Manager's discretion, still be authorized to draw upon the letter of credit in an amount
not to exceed City's reasonable cost in accomplishing the Improvements, up to the full Three
Hundred Fifty Thousand ($350,000.00) Dollar limit of the letter of credit upon City obtaining the
Approvals within two (2) years after the grant of the Waiver or after the Waiver becomes final
and no longer subj ect to any appeal or appellate review proceedings.
(e) The form of the letter of credit shall be subject to approval by the City
Attomey and Developer's attorney and shall have a term of not less than three (3) years or for
three (3) years with renewals. The letter of credit shall be provided by Developer to City as a
condition precedent to the issuance of any City building permit for the Development.
12. As a condition precedent to the issuance of any building permit for the
Development, Developer shall contribute an additional sum of One Hundred Fifty Thousand
($150,000.00) Dollars to the City. This contribution shall be utilized by the City for the purpose
of City transit system improvements (including enhancement of shuttle bus services or off-set of
cost of operation of the shuttle bus service of the City), and reimbursement of the City's legal
fees related to the Litigation.
13. Effective upon issuance ofa City building permit for the foundation of the Tower,
Developer and each of the Joining Parties shall execute and deliver to City releases waiving and
relinquishing any and all causes of action or claims against the City and City's officers (whether
elected or appointed), agents, employees and Commissioners, which in any way arises out of or
pertains to the Litigation or to the moratorium, or to the zoning, land use or other development
-,,_....~._- .--..-.-.----.--..-.--....-....-.-.. _....-~"..,.....-~.,--,---
status of the Property. Further, in the event that the Original Litigation is dismissed as provided
in paragraph 5, but that Developer, notwithstanding City's compliance with City's obligations
pursuant to this Agreement, fails to diligently apply for or determines not to apply for a City
building permit for the foundation of the Tower on or before a date which is one hundred eighty
(180) days after the dismissal of the Original Litigation, because of a change of Developer's
plans, a change of circumstances or otherwise, (Developer not being obligated by this Agreement
to apply for a building permit for the foundation of the Tower within any specific time),
Developer and each of the Joining Parties shall still be obligated to execute and deliver to City
the releases described above upon written demand by the City, and Developer shall at that time
provide for dismissal of the Appellate Litigation, with prejudice. Each party agrees to bear its
own attorney's fees and costs related to such Appellate Litigation, except as specified in
paragraph 12. However, the City Manager may approve an extension of the one hundred eighty
(180) day time period which is stated above in this paragraph 13, upon demonstration of good
cause. The extension approval shall not be unreasonably withheld by the City Manager. The
form of the releases shall be drafted by the City Attorney, consistent with this Agreement, and
shall be subject to the review and approval of the Developer's attorney. The Developer's
attorney's review and approval of the releases shall not be unreasonably withheld or delayed.
Notwithstanding any other provision of this Agreement, the releases shall not pertain to any
rights under this Agreement or to matters occurring after the effective date hereof.
14. The City recognizes that at the quasi judicial hearing on the Waiver Application,
it shall not generally be permissible for the City to seek to obtain additional concessions from
Developer, beyond those set forth in this Agreement, but that instead, at such hearing, the City
Commission shall simply determine, in accordance with the criteria of Section 3 of the
Moratorium Ordinance, whether to grant or deny the Waiver Application. This shall not be
construed in any manner which is contrary to paragraphs (2) and (3) of this Agreement or in any
manner which is prohibited by law.
15. This Agreement is a product of settlement negotiations. No evidence of the
actions proposed herein, including any presentations in any public forum related to the approval
and implementation of these terms and conditions, shall be admissible by either party on the
merits of the claims in the Litigation. However, this shall not prevent or preclude any of the
parties herein from utilizing this Agreement and the record of the public hearing conducted on
the Waiver Application envisioned herein in any challenge to or defense of the decision made or
actions taken upon said Waiver Application by the City Commission or claim or defense
pertaining thereto, or in providing the Courts with a status report or explanation of delays in the
Litigation, or in addressing the issue of exhaustion of administrative remedies. The intent ofthis
paragraph is to avoid the use of this Agreement as an admission against the interest of any party
hereto and not to foreclose any claim or defense that may arise subsequent to the effective date
of this Agreement.
16.
(a)
This Agreement, and any of the specific items, covenants, and conditions
contained herein, may not be waived, changed, altered or modified except by an instrument in
writing signed by all the parties against whom enforcement of such change is sought. The City
Manager shall be authorized to act for the CilJ:' in the implementation of subparagraphs (a) and
(b) of this paragraph 16 upon approval of the City Attorney as to the form and legal sufficiency
of such action by the City Manager.
(b) The parties recognize that by their nature certain paragraphs of this
Agreement shall only be applicable ifthe Waiver Application is granted, becomes fmal and is no
longer subject to appellate litigation or appellate review. The parties may, by supplemental
agreement, enumerate those provisions.
17. The parties agree that this Agreement shall be rendered binding only upon
execution by all of the parties hereto.
18. The "Effective Date" of this Agreement shall be January 19,2006. The term of
this Agreement commences upon the effective date and ends upon completion of the
redevelopment provided for herein, unless otherwise stated.
19. Wherever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Agreement, provided that the material purposes of this
Agreement can be determined and effectuated. This severability provision shall not operate to
impair, limit or affect any specific provisions of this Agreement that are expressly inter-
dependent.
20. This Agreement shall be binding on the parties and their successors or assigns.
The rights, benefits and detriments inuring to Developer under this Agreement shall be freely
assignable at the sole election of Developer, and shall run with the Property.
21 This Agreement shall in all respects be construed in accordance with the laws of
the State of Florida applicable to contracts made and to be performed wholly within the State of
Florida. Venue for any litigation hereunder shall be in the Circuit Court of the Eleventh Judicial
Circuit in and for Miami-Dade County, Florida.
22. This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same Agreement. Delivery
of an executed counterpart of a signature page to this Agreement by facsimile shall be effective
as delivery of a manually executed counterpart of this Agreement.
23. This Agreement shall be deemed to have been jointly drafted by the parties, and in
construing and interpreting this Agreement, no provision shall be construed and interpreted for or
against any of the parties because such provision or any other provision of the Agreement as a
whole is purportedly prepared or requested by such party.
24. In the event that the City Commission, in accordance with the City Moratorium
Ordinance criteria, grants the Waiver Application, the parties hereto shall cooperate and work
together to defend the action of the City Commission in the event of any challenge by any other
person, fIrm or entity. Further, in such event, during the course of any such challenge to the City
Commission decision, Developer and the Joining Parties shall take no action to further pursue
the Litigation identifIed in Recitals paragraph (H) above, prior to the fInal adjudication of any
such challenge, unless compelled to do so by court order.
25. (a) Time is of the essence of this Agreement.
(b) Developer shall fIle the Waiver Application with City on or before
Monday, January 23, 2006.
( c) City agrees to hold a quasi judicial hearing and reach a decision upon the
Waiver Application no later than Midnight, Thursday, February 2, 2006, and to issue a written
decision to be rendered no later than on Friday, February 3, 2006.
STIPULATED AND AGREED BY:
SHEF AORff ARRAGON, LLLP,
a Florida limited liability limited
partnership
By: Aventura Tarragon GP, LLC, a
Florida limited liability company,
its sole general partner
By:
A VENTURA TARRAGON GP, LLC,
a Florida limited liability company
By: Tarragon South Development Corp.,
a Nevada corporation, its sole
m~liImember
bY:-S$j4~t~
Executive Vice President
AVENTURA TARRAGON LP,LLC,
a Florida limited liability company
By: Tarragon South Development Corp., a
Nevada corporation, its sole managing
me~e .
by: . (IIa,r ~.(ll~(JJJA10.1l410v1
Mar~''-V'',^,"'
Executive Vice President
CITY OF A VENTURA, FLORIDA,
a Florida municipal corporation
By:
Eric M. Soroka, City Manager
ATTEST:
By:
City Clerk
Pursuant to Resolution No. 2006-
Approved as to form and legal sufficiency
for the use and reliance of the City of
Aventura only:
By:
City Attorney
SHEF AOR BH, LLC,
a Florida limited liability company
By: Plainvest, Inc., a Florida corporation
co-manager
By:
Print:
Title:
By: Estate Field Group, Inc., a Florida
corporation, co-manager
TARRAGON SOUTH DEVELOPMENT CORP., a
Nevada c 0 ation
~.
/JU11
F:/328.058ILincoln Painte Settlement DocumentslFinal Version of Settlement Agreement 1.25.06
SHEFAOR BH, LLC, .
a Florida limited liability company
vlQ nJ ()1ft ~f.
By: ~ft, Inc., a Florida corporation
co-manager
By:
Print:
Title:
By:
Print:
Title:
By: Estate Field Group, Inc., a
corporation, co-m e I
TARRAGON SOUTH DEVELOPMENT CORP., a
N evada co:~r !ion
By: .
F:!328.058ILincoln Pointc Settlement DocumentsfFinal Version of Settlement Agreement 1.25 .06
16 IT
- --.. ..~..._. ------------------.-.----------.-
)
EXHIBIT A
)
LEGAL DESCRIPTION
)
Tract D of ADMIRAL'S PORT SECTION ONE, according to the plat thereof, recorded in
Plat Book 113, Page 51, Public Records of Miami-Dade County, Florida.
)
")
:)
o
o
o
o
EXHIBIT "A"
LEGAL DESCRIPTION:
A portion of Private Easement No. 1 on WilLIAMS ISlAND AMENDED, recorded in Plat Book 126, Page 49, all of
the Public Records of Miami-Dade County, Florida, lESS AND EXCEPT the right-of-way for N.E. 183rd Street,
being more particularly described as follows:
Begin at the most Easterly Southeast corner of Tract "C". of ADMIRAL'S PORT SECTION ONE os recorded in Plat
Book 113, Page 51 of said Public Records; the following three (3) courses being along the East line of said
Tract "C"; (1) thence N06'54'00"W for 294.62 feet to a point of curvature concave to the Southwest: thence
Northwesterly alon9 0 364.56 foot radius curve leading to the left through a central angle of 32.28'46" for an
ore distance of 206.66 feet to 0 point of compound curvature; thence Northwesterly along a 308.00 foot radius
curve leading to left through a central angle of 33'26'20" for an arc distance of 179.75 feet to a point on
the Southerly boundary line of NE 183rd Street, according to the Special Warranty Deed as recorded in Official
Records Book 18170, Page 2344 of said Public Records; thence NOO'07'05"W along said Southerly boundary line
of said NE 183rd Street for 3.84 feet; thence N89'57'15"E along said Southerly boundary line for 107.14 feet
to the East line of said Private Easement No. 1 on WilLIAMS ISlAND AMENDED, also being a point of curvature
concave to the Southwest and whose radius point bears S33'36'lO"W; thence Southeasterly along the East line
of said Private Easement No.1, and along a 358.00 foot radius curve leading to the right through a central
angle of 17'01'04" for an arc distance of 106.33 feet to a point of compound curvature; thence Southeasterly
along said Easterly line and a 337.84 foot radius curve leading to the right through a central angle of
32'28'46" for an arc distance of 191.51 feet to a point of tangency; thence S06'54'OO"E along said East line
of Private Road No. 1 for 366.67 feet; thence S84'23'53"W along the Easterly extension of South line of said
Tract "c" for 38.01 feet to the Point of Beginning.
SURVEYOR'S NOTES:
This site lies in Section 1 0, Township 52 South, Range 42 East, City of Aventura, Miami-Dade County,
Florida.
All documents are recorded in the Public Records of Miami-Dade County, Florida unless otherwise noted.
Bearings hereon are referred to an assumed value of N06'54'00"W for East line of Said Tract "c".
Lands shown hereon containing 28,286 square feet, or 0.649 acres, more or less.
Dimensions indicated hereon are based on Fortin, leavy, Skiles, sketch no. 2004-081.
SURVEYOR'S CERTIFICATION:
I hereby certify that this "Sketch of Description" was made under my responsible charge on January 23, 2006,
and meets the Minimum Technical Standards as set forth by the Florida Board of Professional Surveyors and
Mappers in Chapter 61 G17-6, Florida Administrative Code, pursuant to Section 472.027, Florida Statutes.
. nat e and the original raised seal of a Florida Licensed Surveyor and Mapper"
Id.No.
DANJR
060086
r DESCRIPTION, NOTES, & CERTIFICA TION I
FORTIN, LEAVY, SKILES, INe.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653
180 Northeast 168th. Street {North Miami Beach. Florida. 33162
Phone: 305-653-4493 I Fax 305-651-7152/ Email fls@flssurvey.com
Dare 1/23/06
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., FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653 Dwg. No. 1006-003
180 Northeast 168th. Street / North Miami Beach, F'lorida. 33162
Plotted: 1/23/06 10:41a Phone: 305-653-4493 / Fax. 3'05-651-7152 / Email fls@f1ssurvey.com Sheet 2 of 3
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SKETCH OF DESCRIPTION I
FORTIN, LEAVY, SKILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORIDA CERTIFICATE OF AUIHORIZATION NUMBER: 00003653
180 Northeast 168th. Street / North Miami Beach, Florida. 33162
Phone: 305-653-44931 Fax 305-651-71521 Email fls@flssurvey.com
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lob. No. 060086
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Sheet 3 of 3
MIAMI'-
~..
ADA Coordination
Agt-ndaCoorclinaHon
Ar( in Public Places
Audit.and MarJagement Services
Aviation
Buih:ling Code CoJ'\1pliance
Department of EnJrnnmental Resources Management
En Imental Resources Regulation Division
33 SW 2nd Avenue, 4th floor
Miami, florida 33130-1540
T 305-372-6575 F 305-372-6479
miamidade.gov
'""",0' July 1 B. 2005
BUlinessDevelopmell[
C~fli\allmprO\lemenIS
Citizen'S Independent ir.msporlOllion Trust
Communications
Community Action Agency
Communily & Economic Development
COmrnunilyRelations
Consumer Services
Corrections & Reh.ahitilalion
countywide Healthcare Planning
CulllJralAftaj~
Elections
Emergency Managemenl
Employee Rel<llions
rnlerpri""TecflnDlogyServices
Enl/ironm,'nlalliesourcesManagemenl
Fi.lirEmploymenIPractice5
Finance
Fire Rescue
Gene",i Services Adminislr..\ion
Hi~loric Preservalion
Homeless Tnlst
Housing Agency
HOllsingFinanceAulhority
Human Services
lndependenlReviewPanel
InlernalionalTradeConsortium
)uvenileAssessmentCenter
MediQIEXaminer
Metropolitan Planning Organization
Park and Recreation
Planning and Zoning
Police
ProcuremenlManagernenl
Property Appraiser
Public library System
Public Works
Safe Neighborhood Parks
Seaport
SolidWasleManagement
5lrategicBU$inessManagemenl
Teem Melto
Trilnsil
Urban RevllalizalionTask Force
Vilc.aya Mu~ellm and Gardens
Water anu Sewer
Tom Brinkley, Vice President
Sheafaor Development, LLC.
Lincoln Pointe Development
2999 NE 191 Street, Suite B03
Aventura, Florida 331BO
Re:
Proposed Curb and Sidewalk Improvements in, .at or near the vicinity of
Parcels "A" and "B" of the Williams Island Mangrove Preserve located on the
west side of the Williams Island Lagoon
Dear Mr. Brinkley:
Please consider this as a follow-up to our recent meetings and the request to
conduct certain improvements including the installation of a pedestrian walkway,
curbing to address stormwater runoff from the existing roadway, minor roadway
improvements to include additional pavement of 12 inches on each side of the
existing roadway, street lighting and signage within the area designated as the
Mangrove Planting Area, Parcels A and B as shown in the Declaration of
Restrictions (attached). You have indicated that these improvements have been
requested by the City of Aventura in response to proposed redevelopment of Lincoln
Point located immediately west of the development known as Williams Island.
As you are aware, the Mangrove Planting Area of Williams Island (Parcels A and B)
was required as mitigation for impacts permitted pursuant to Class I Permit CC-3B4.
Review of Department records indicates that although both areas were required to
be scraped and planted with additional mangroves, due to certain logistical
problems presented by the permittee at that time, DERM agreed to accept a
monetary contribution to fund off-site restoration and enhancement in lieu of on-site
mangrove wetland creation. As such, some of the designated Mangrove Planting
Area remained as filled area and is available for the proposed improvements. A
review of the existing Declaration of Restrictions revealed that there is nothing in the
covenant that would prohibit these improvements within the Mangrove Planting
Area. This Department is continuing to research whether the required monetary
contributions were satisfied by the permittee (Williams Island) at that time.
As agreed upon, the filled areas, which were not scraped to wetland elevation but
are included in the parcel referred to as the "Mangrove Planting Area" in the
aforementioned covenant appear to be available for the proposed improvements.
Based on a series of meetings held between yourself and DERM staff, the following
conditions have been agreed upon to allow the proposed improvements to be
conducted within the subjecL;:lrea,_ -- i I "'-.
-,~~;{'~f i I';';' ~,>\~('.C {;' (~7-( (C t.~. '(-;~'/ ~- ({V
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Exhibit C to Settlement
Agreement
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1. All permits and other necessary approvals shall be obtained from all federal, state and local
agencies, including the City of Aventura, which may have jurisdiction on the subject property
or have regulatory jurisdiction over the proposed improvements prior to commencement of
work. For example, permits for the stormwater management system or for the creation of
additional impervious area may require permits from DERM's Water Control Section as well
as the South Florida Water Management District. It is'the responsibility of Lincoln Pointe
Development to ensure that all necessary permits and approvals are obtained prior to
commencement of work.
2. The subject property is owned by WI Development, Inc. As such, permission from the
property owners must be obtained prior to commencement of work.
3. Pursuant to Section 24.49.9 of the Code of Miami-Dade County, Florida, all exotic, invasive
plant species listed on Miami-Dade County's Prohibited shall be eradicated from the
Mangrove Planting Area on Parcels A and B, and/or to the point where improvements
(sidewalk and curbing) are constructed. Plant species listed on the Controlled Plant
Species List shall also be eradicated from said parcels. S.ee the attached Prohibited Plant
Species List and the Controlled Plant Species List. You may also visit our web site at
htto://www.miamidade.qov/derm/Plants/about prohibited plants.asp for further information
or for assistance in the identification of these species.
4. Lincoln Pointe Development and their representatives have agreed to utilize strictly native
plant species in all landscaping of Parcels A and B. Native trees, shrubs and groundcover
shall be planted in accordance with the Landscape List Sheet 2 and Landscape List Sheet 3
on the plans entitled "Lincoln Pointe - Replanting Area Landscape Plan"; prepared by Witkin
Design Group on June 14, 2005, Sheets 1-3, and approved by this Department.
5. Upon completion of the planting, DERM shall be notified and an inspection shall be
scheduled to determine compliance with the conditions of this letter and with the
Landscaping Plan. If DERM determines that non-native plant species have been planted in
lieu of native species, Lincoln Pointe Development agrees to remove the exotic plant
species and replace with the native plant species.
6. To promote diversity within the planting area, a minimum of no less than six (6) native plant
species shall be planted within the planting area between the top of slope to the edge of the
sidewalk and curb.
7. All planting shall be done on 3-foot centers to provide sufficient vegetative cover. Plantings
shall be watered frequently after the initial planting to ensure survivorship. Once
established, the site shall be monitored in accordance with condition #8 of this approval.
8. Lincoln Pointe agrees to achieve either 100% cover or meet 80% survivorship within three
years of planting. Lincoln Pointe Development shall periodically monitor the site for exotic,
invasive plant species and for survivorShip of the planting material. Lincoln Pointe
Development agrees to conduct quarterly maintenance events during the first year after
planting and semiannually for the following two years. During the maintenance events, any
recruited exotic plant species shall be eradicated and the survivorship of the native plants
shall be monitored. If survivorship drops below 80% at any time, additional planting of
native species shall be conducted to bring the Planting Area back up to 80% survivorship.
f( :L/L{
9. The existing mangrove trees may not be trimmed, cut or altered without first obtaining
written approval through a Class I Permit from the Coastal Resources Section of DERM.
Please note that the existing mangrove fringe is protected pursuant to the Declaration of
Restrictions and is considered a mitigation area.
10. Red mangrove seedlings (Rhizophora mangle) a minimum size of 2.5 feet tall may be
planted in areas of appropriate elevation after removal of the Australian pines.
Any work in, on, over of upon tidal waters or wetlands, including trimming or alteration of
mangrove trees, shall require that you first obtain a Class I Permit from the Coastal Resources
Section of DERM. By performing work within the "Mangrove Planting Area", Parcels A & B,
Lincoln Pointe Development and/or its representatives agree to the conditions of this letter.
If you have any questions regarding this matter, please contact me at (305) 372-6917 or Luis
Otero at (305) 372-6589.
Siricerely,
nne Clingerman
de Enforcement Officer II
Environmental Resources Regulation Division
Attachments: Miami-Dade County Prohibited Plant Species List
Miami-Dade County Controlled Plant Species List
Declaration of Restrictions prepared by Clifford A. Schulman Official Record
12239 Pages 485 through 497
I<z;:j
BILZIN SUMBERG BAENA PRICE & AXELROD I.LP
A. P....RTNERSHIP 0,. PRO,.ESSIONAL ASSOCIATIONS
200 SOUTH BISCAYNE BOULEVARD, SUITE 21500. MIAMI, ,.LORIDA 33131-15340
TltLItPHONE: (30S) 374-71580 . "'AX: (3015) 374-71583
E-MAIL: IN...OOSILZIN.COM . WWW.8ILZIN.COM
. January 23, 2006
J08IUle Carr, Planning Director
City of A ventw'a
19200 West Country Club Drive
4th Floor:.
A ventura, Florida 33180
Re: LETTER OF INTENT
Application of Shefaorrrarral!on LLLP for Waiver from Moratorium
Ordinance Pursuant to Section 3 of Ordinance No. 2005-07
Dear Ms. Carr:
lbis firm represents Shefaorrrarragon, LLLP as the owner of the property located at 17900
NE 31st Court, in the City of Aventw'a and generally known as Lincoln Pointe. lbis letter
constitutes the Letter of Intent accompanying "Public Hearing Application Pursuant to Section 3,
Ordinance No. 2005-[07]" by Shafaorrrarragon, LLLP which seeks a waiver from the moratorium
established by Ordinance No. 2005-07.
The proposed Lincoln Pointe Development ("Redevelopment") consists of 460 residential
units including a minimum of 44 townhomes for a density of 52.45 units per acre. It will include a
residential tower of up to 28 stories. Total height, including equipment, will not exceed 315 feet.
While the proposed redevelopment will provide additional housing, and enhanced quality of life, it
does not maximize the development of the property under the present RMF4 zoning, to which the
applicant believes it is entitled by virtue of the doctrines of vested rights and estoppel.!
The present zoning on the property, which pencits 60 units per acre, would allow 526 units
in a building up to 400 feet in height plus equipment height. The Redevelopment would result in a
reduction of 66 units and approximately 100 feet in height. The proposed amendments to the Land
Development Regulations promulgated in connection with the pending moratorium ("LOR
Amendments") would allow 45 units per acre, 25 stories and 250 feet in height (plus equipment) as
a matter of right. Upon conditional use approval, the LDR Amendments would allow 60 dwelling
units per acre and 30 stories or 300 feet, plus equipment. Such approval would thus allow 526
units, the same number presently allowed under RMF4 zoning, and 300 feet in height plus
equipment height. lbis would equal or exceed the Redevelopment. As compared to the
Redevelopment, the present zoning would thus allow over 14% more density and over 30% more
height. Assuming conditional use approval under the LDR Amendments, those regulations would
similarly allow over 14% more density than the Redevelopment, 2 additional stories, and an equal
or greater overall height.
Because the Redevelopment constitutes a considerable reduction in density and height from
J The Applicant reserves, and does not waive, the right to assert any and all rights in any and all
litigation and other proceedings, in the event that the waiver is not finally approved.
BILZIN SiJMBERG BAENA PRICE & AXELROD LLP
/"
Joanne Carr, Planning Director
January 23, 2006
Page 2
that to which the developer believes it is entitled under the present zoning, and because the proposal
does not exceed what could be approved under the proposed regulation amendments, the
Redevelopment will not detrimentally affect preparation and implementation of the regulations
contemplated by the moratorium ordinance. To the contrary, when considered in its totality, the
Redevelopment is in accord with the goals of the moratorium and the proposed regulation
amendments.
The moratorium is related to the preparation of an evaluation and appraisal report (the
"EAR") for the City's comprehensive plan, to be implemented through land development
regulations. "[Major] issues" to be addressed during the EAR process include redevelopment,
housing, emergency management, transportation, intergovernmental coordination and quality of
life. "[R]emedial measures" to be focused upon during the moratorium include traffic concUITeIlcy,
redevelopment guidelines, building height, and emergency management.
The present development on the property consists of 285 units of older rental aparbnents,
whereas the contemplated redevelopment will consist of 460 new units under condominium
ownership. The Redevelopment will result in the updating and modernization of housing,
consistent with the present building code requirements, including larger unit sizes, thus contributing
to quality of life While the increase in total units above those presently in existence will support
the goal of providing housing, the reduction from the maximum allowed by the present zoning, and
potentially under the LDR Amendments, will contribute to the goals of reducing traffic and easing
attendant emergency evacuation issues. The increase in height, with the vastly improved views,
will enhance quality of life, as will the inclusion of substantially more green space than in the
previously submitted site plan. The reduction from the height allowed by the present zoning will
address the issue of building height set forth in the moratorium ordinance and will assure
compatibility in that the height of the tower will be no greater than the highest structure in the
vicinity, including Williams Island.. The foregoing aspects of the development therefore are
supportive of the issues of redevelopment, housing, quality of life, building height, compatibility
and emergency management addressed by the ordinance.
In connection with the project the developer has committed to make a contribution of
$150,000, which, inter alia, will support enhancement of transportation facilities. Additionally, the
developer has addressed the City's desire for a widening and improvement of the off-site entry drive
to the north of the property line by committing to make a contribution of $1 00,000 to be used by the
City in the acquisition of the rights necessary to effect these improvements. Alternatively, the City
may use these funds for the media center at the A ventura Charter School. The developer has also
committed to fund the aforementioned improvements (estimated at $350,000) in the event that the
City goes forward with this project. These contributions directly address the issues of
transportation and emergency management, in addition to positively affecting the goals of
redevelopment, housing, and quality of life.
MIAMI 970048. I 7592420873
~ -
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
Joanne Carr, Planning Director
January 23, 2006
Page 3
In conclusion, the Redevelopment will be compatible with surrounding land uses and will
not impair the public health, safety or welfare. To the contrary, the redevelopment will constitute
an enhancement in these respects. The requested waiver from the moratorium ordinance meets the
waiver requirements of the moratorium ordinance for these reasons and becl\llSe it will not
detrimentally affect the preparation and implementation of the Growth Management Regulations
contemplated by. Ordinance 2005-07, but will support the City's objectives in this regard.
We respectfully request approval of the moratorium waiver application.
Very truly yours,
..~
Stanley B.. .~ e
---------.
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MIAMI 970048. J 7592420873
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CITY OF A VENTURA
GOVERNMENT CENTER
COMMUNITY DEVELOPMENT DEPARTMENT
19200 West Country Club Drive
Aventura, Florida 33180
Phone: (305) 466-8940
PUBLIC HEARING APPLICATION FOR WAIVER PURSUANT TO
ORDINANCE NO. 2005-07
DATE: Januarv 23. 2006
PROPOSED PROJECT NAME: Lincoln Polnte
LOCATION: 17900 NE 31"' Court
LEGAL DESCRIPTION: See Exhibit A
FOLIO NUMBER(s): 28-2210-050-0020
CURRENT ZONING:
RMF4
CURRENT LAND USE: Medlum-HIQh DensitY Residential
PROPOSED USE OF PROPERTY: (Attach additional sheets If necessary)
1. RedeveloDment for 460 units IncludinQ 44 townhouses
Name of Applicant or Contact Person:
Applicant: ShefaorlTarraQon. LLLP. a Florida limited liability limited Dartnershlp
Phone No.:
13051 935-5050
Contact Person: Stan lev B. Price. ESQ.lRobert L. Krawcheck. ESQ.
305/350-2374: 305/350-2357
Address of Contact Person:
Bllzln Sumbera Baena Price & Axelrod LLP
200 South Blscavne Boulevard. Suite 2500. Miami. FL 33131
Name of Property Owner (If other than Applicant):
Phone No.:
ISamel
Address of Property Owner:
200 East Las Olas Boulevard. Suite 1660. Ft. Lauderdale. FL 33301
1. The followina documents are reauired to be submitted with and deemed to be
incorporated into this petition. as applicable:
ALL APPLICATIONS MUST BE ACCOMPANIED BY A LETTER OF INTENT.
Please describe the proposed project in detail and describe how the specific use or activity requested by
this application will not detrimentally affect the preparation and implementation of the Growth Management
Regulations contemplated under Ordinance No. 2005-07. will be compatible with surrounding land uses and
will not impair the. public health, safety or welfare and any other pertinent information. Insufficient
justification for the waiver approval may result in the denial of your application.
1
MIAMI 971853.2 7592420873
One (1) original application, signed and notarized by the applican~ owner and/or attorney and, if necessary,
authorization to another individual to represent the applicant.
.One (1) original, current Opinion of Title Report for the subject property and copies of documents
referenced in that report.
Twelve (12) copies of a preliminary site plan, showing the location, size and height of all buildings, exterior
elevations and site data information.
*Two (2) copies (folded) of a current signed and sealed survey of the subject property, based upon the
Opinion of Title Report. Surveys must delineate existing natural features, easements, existing structures
and uses, and existing utility lines. .
.A complete zoning history of the property is required. The attached Certificate of Resolutions form must be
completed and signed by a Miami-Dade employee from the Zoning Information Section.
*Twelve (12) sets of photographs of existing structures on site and/or 8"x10" color photographs or color
rendering of proposed construction. .
Disclosure of Interest Form.
Applicant Representative Affidavit and Business Relationship Affidavit(s) Pursuant to Section 31-71(b)(2) of
the City Code.
Is this hearing being requested as a result of a violation notice or summons?
Yes No -1L- If yes, In whose name was the violation or summons notice served?
Nature of violation N/A
Does property owner own contiguous property to the subject property? If so, give complete legal
description of entire contiguous property.
No
Is there an option to purchase or lease subject property or property contiguous thereto, predicated on the
approval of this application? Yes..J No
If yes, who are the affected parties? Pinnacle Communities. LLC. a New Jersev limited liability companv
(Copy of purchase contract must be submitted with this application).
..J
Do these plans represent new construction?
Has construction started?
Has construction been completed?
Are there any existing structures on the property?
Will the existing structures be demolished?
Yes
Yes
Yes
Yes
Yes
..J
..J
No
No ..J
No ..J
No
No
.See Exhibits D and E attached hereto
2
MIAMI 971853.2 7592420873
2. Labels. Notification and AdvertisinllJPursuant to Section 31.7Hel Citv Code)
ALL COSTS OF ADVERTISING, MAILING AND POSTING SHALL BE BORNE BY THE APPLICANT.
The Community Development Department shall prepare and coordinate a published notice of the application and
the mailing of a courtesy notice using labels provided by the applicant.
The following is required of the applicant and must be oresented with .anv and all aoolications:
One (1) notarized copy of a list of the names and addresses of all property owners located within 300 foot
radius of the exterior boundary of the subject property. If the subject property constitutes only a portion of a
contiguous ownership parcel, the exterior boundary from which the appropriate radius is to be projected will
be the exterior boundary of the entire contiguous ownership parcel.
One (1) set of self-adhesive labels of the same list to be used for mailing purposes. Failure of applicant to .
provide the required labels will constitute an incomplete submittal package and may cause the delay of the .
public hearing until such time that the required labels are received
The application request shall be advertised by the city and the subject property shall be posted by the city
no later than ten (10) days prior to the public hearing. Such posting shall be displayed in a manner
conspicuous to the public, by a sign or signs no less than 24" x 36" in size and containing information
conceming the application, including but not limited to, the applied for zoning action and the time and place
of the public hearing.
3. Filina and Hearina Fees
-.:L A check made payable to the City of Aventura for the amount of $ 850.00.
-.:L A check made payable to the City of Aventura for $650.00 for public notice mailings, property posting and
newspaper advertisement for the public hearing. Any costs incurred exceeding the $650.00 fee will be
charged to the applicant.
4. ProDertv Violations
As part of the review, your property may be subject to various inspections by City personnel. If building, zoning or
Code Compliance violations are found, your request for a public hearing will be. deferred until such violations are
corrected.
5. ResDonsibilitv of ADDlicant
It is the responsibility of the applicant to assure that all questions in the application and all required supplementary
data are submitted at the time of the filing of the application and that all answers, plans and supplementary data are
accurate and complete.
All required plans, supplementary data, mailing labels and fees must be submitted at the same time as the
application is filed, or the application will be incomplete. Incomplete applications will not be scheduled for public
hearing and will be returned to the applicant. The filing of an incomplete application will not reserve a place on the
hearing agenda. An application submitted prior to the deadline does not automatically insure placement of the
application on that hearing agenda. .
All data submitted in connection with the application becomes a permanent part of the public records of the City of
Aventura.
3
MIAMI 971853.2 7592420873
DEVELOPMENT APPLICATION OWNER CERTIFICA liON
(Please complete all that apply)
For use when Detitioner is the Owner of subiect DroDertv:
This is to certify that I am the owner of the subject lands described in the above application. I understand that I am
responsible for complying with all application requirements prior to this petition being scheduled for any public
hearing. I also understand that it is my responsibility to comply with the City's requirements regarding quasi-judicial
proceedings. This further certifies that I have read this petition and the statements contained herein are true and
correct.
SHEFAORITARRAGON, LLLP, a Florida limited
liability limited partnership
By: Aventura'Tarragon GP, LLC,
its General Partner
By: Tarragon South Development Corp.,
its Managing Member
ShefaorfTarraaon. LLLP
Print Name of Petitioner
By:
Marcy Kammerman
Executive Vice President
STATE OF FLORIDA
COUNTY OF BROWARD
The foregoing instrument was Swom to and Subscribed before me this day of . 2006, by
MARCY KAMMERMAN, as Executive Vice President of Tarragon South Development Corp., Managing Member of Aventura
Tarragon GP. LLC, General Partner of ShefaorfTarragon, LLLP, a Florida limited liability limited partnership, who is personally
known to me or who has produced as identification,
Printed Name of Notary Public
My Commission Expires:
Signature of Notary Public
*********************~**************************************************************.AAAAAAAAAAAAAAAAAAAAAA
For use when petitioner is NOT the Owner of the Subiect Property:
This is to certify that I am the owner of subject lands described in the above petition. I have authorized
, to make and file the aforesaid petition. This further certifies that I have read this
petition and the statements contained herein are true and correct.
Print Name of Owner
Signature of Owner
STATE OF
COUNTY OF
The foregoing instrument was Swom to and Subscribed before me this
, by
produced
day of , 200
who is personally known to me or who has
as identification.
Printed Name of Notary Public
Signature of Notary Public
My Commission Expires:
*************************************************************************************************************
4
Tenant or Owner Affidavit
I, Marcy Kammerman, Executive Vice President of Tarragon South Development Corp.; Managing Member of
Aventura Tarragon GP, LLC, General Partner of ShefaorlTarragon, LLLP, a Florida limited liability limited
partnership (the "Company"), being first duly sworn, depose and say that the Company is the ownerltenan! of the
property described and which is the subject matter of the proposed hearing; that all the answers to the questions in
this application, and all sketch data and other supplementary matter attached to and made a part of the application
are honest and true. I understand this application must be completed and accurate bElfore a hearing can be
advertised.
In the event that I or anyone appearing on my behalf is found to have made a material misrepresentation, either
oral or written, regarding this application, I understand that any development action may be voidable at the option of
the City of Aventura.
SHEFAORITARRAGON, LLLP, a Florida limited
liability limited partnership
By: Aventura TarragonGP, LLC,
its General Partner
By: Tarragon South Development Corp.,
its Managing Member
Shefaor/Tarraaon. LLLP
Print Name of Petitioner
By:
Marcy Kammerman
Executive Vice President
STATE OF FLORIDA
COUNTY OF BROWARD
The foregoing instrument was Sworn to and Subscribed before me this _ day of , 2006,
by MARCY KAMMERMAN, as Executive Vice President of Tarragon South Development Corp., Managing Member of Aventura
Tarragon GP, LLC, General Partner of ShefaorfTarragon, LLLP, a Florida limited liability limited partnership, who is personally
known to me or who has produced as identifocatlon.
Signature of Notary Public
Printed Name of Notary Public
My Commission Expires:
***************AAAAAAA******************AAAAAAAA************************AAAAAlAAAAlAAAAAAAAAAAAAAAAAAAAAAAAA'
Attornev Affidavit
I, Stanley B. Price, being first duly sworn, depose and say that I am a State of Florida Attorney at Law, and I am the
Attorney for the Owner/Applicant of the property described and which is the subject matter of the proposed hearing;
that all the answers to the questions in this application, and all sketch data and other supplementary matter attached
to and made a part of this application are honest and true. I understand this application must be complete and
accurate before a hearing can be advertised. In the event that I or anyone appearing on my behalf is found to have
made a material misrepresentation, either oral or written, regarding this application, I understand that any
development action may be voidable at the option of the City of Aventura:..----::7
<S~~'
. Stanley B. ~ c.e
STATE OF FLORIDA COUNTY OF MIAMI.DADE
The foregoing instrument was Sworn to and Subscribed before me thiSdO day of ~'0
STANLEY B. PRICE, who is oersonally known to me or who as
as Identification.
, 2006, by
produced
5
fl/ "-'i::Jj, €.-n.J.
Printed Name of Notary Public
My Commission Expires:
--
. 3~JdX'3
69mt 00' NOISSIIlVlOO A/'l
ZUllO H.l31l'YZI13
~AAAAAAAAAAAAAAAA****************************A1AA1AA**********AAAAAA1A1111111111114111A1111411111111111111111
. COI'Doration Affidavit
I, Marcy Kammerman, Executive Vice President of Tarragon South Development Corp., Managing Member of
Aventura Tarragon GP, LLC, General Partner of ShefaorlTarragon, LLLP, a Florida limited liability limited
partnership (the "Company"), being first duly swom, depose and say that the Company is the ownerltenant of the
property described and which is the subject matter of the proposed hearing; that all the answers to the questions in
this application, and all sketch data and other supplementary matter attached to and made a part of the application
are honest and true. I understand this application must be completed and accurate before a hearing can be
advertised.
In the event that I or anyone appearing on my behalf is found to have made a material misrepresentation, either
oral or written, regarding this application, I understand that any development action may be voidable at the option of
the City of Aventura.
We understand that this application must be complete and accurate before a hearing can be advertised. In the
event that I or anyone appearing on our behalf is found to have made a material misrepresentation, either oral or
written, regarding this application, I understand that any development action may be voidable at the option of the
City of Aventura.
SHEFAOR/TARRAGON, LLLP, a Florida limited
liability limited partnership
By: Aventura Tarragon GP, LLC,
its General Partner
By: Tarragon South Development Corp.,
its Managing Member
ShefaorlTarraaon. LLLP
Print Name of Petitioner
By:
Marcy Kammerman
Executive Vice President
STATE OF FLORIDA
COUNTY OF BROWARD
The foregoing instrument was Sworn to and Subscribed before me this day of , 2006,
by MARCY KAMMERMAN, as Executive Vice President of Tarragon South Development Corp., Managing Member of Aventura
Tarragon GP, LLC, General Partner of ShefaorlTarragon, LLLP, a Florida lim~ed liability limited partnership, who is personally
known to me or who has produced as identification.
Printed Name of Notary Public
Signature of Notary Public
My Commission Expires:
*************************************************************************************************************
Development Application OWner Certifteation
Revised 3/23/98
6
MIAMI 971853.2 7592420873
DISCLOSURE OF INTERE5T
If the property, which is the subject of the application, is owned or leased by a CORPORATION, list the principal
stockholders and the percentage of stock owned by each. [Note: where the principal officers or stockholders
consist of another corporation(s), trustee(s), partnership(s) or other similar entities, further disclosure shall be.
required which discloses the identity of the individual(s) (natural persons) having the ultimate ownership interest in
the aforementioned entity. .
Corporation Name
Name, Address, and Office
Percentage of Stock
If the property which is the subject of the application is owned or leased by a TRUSTEE, list the beneficiaries of the
trust and the percentage of interest held by each.. [Note: where the beneficiary(ies) consist of corporation(s),
another trust(s), partnership(s) or other similar entities, further disclosure shall be required which discloses the
identity of the individual(s) (natural persons) having the ultimate ownership interest in the aforementioned entity].
Trust Name
Name and Address
Percentage of Interest
If the property which is the subject of the application is owned or leased by a PARTNERSHIP or LIMITED
PARTNERSHIP, list the principals of the partnership, including general and limited partners, and ttie percentage of
ownership held by each. [Note: where the partner(s) consist of another partnership(s), corporation(s), trust(s), or
other similar entities, further disclosure shall be required which discloses the identity of the individual(s) (natural
persons) having the ultimate ownership interest in the aforementioned entity].
See Exhibit B
Partnership or Limited Partnership Name
Name and Address
Percentage of Ownership
7
.
If there is a CONiRACi ~OR PURCHASE, whether contingent on this application or not, and whether a
Corporation, Trustee, or Partnership, list the names of the contract purchasers below, including the principal
officers, stockholders, beneficiaries, or partners. [Note: where the principal officers, stockholders. beneficianes, or
partners consist of another corporation, trust, partnership, or other similar entities, further disclosure shall be
required which discloses the identity of !he individual(s) (natural persons) having the ultimate ownership interest in
the aforementioned entity],
Pinnacle Communities. LLC. a New Jersev
limited lIablltv comDanv
Name
Date of Contract
Name and Address
Percentage of Interest
See exhibIt C
If any contingency clause or contract terms involve additional parties, list all individuals or officers, if a corporation,
partnership, or trust.
For any changes of ownership or changes in contracts for purchase subsequent to the date of the application. but
prior to the date of final public hearing, a supplemental disclosure of interest shall be filed.
The above is a full disclosure of all parties of interest in this application to the best of my knowledge and belief...
. .
SHEFAORITARRAGON, LLLP, a Florida limited
liability limited partnership
By: Aventura Tarragon GP, LLC,
its General Partner
By: Tarragon South Development Corp.,
Managin Member
ShefaorlTarraQon.LLLP
Print Name of Petitioner
.. Based upon information provided by Pinnacle Communities, LLC. a New Jersey limited company, attached as Exhibit C
MIAMI 971853.2 7592420873
8
My Commission Expires:
""'a\. Kathleen s_
~ oJ . My Commission D017e0711
"'"':''t: .
'+..r:/ Expires Mon:Il 08, 2007
Note: Disclosure shall not be required of any entity, the equity interests in which are regularly traded on an
established securities mar1<et in the United States or other country; or of any entity, the ownership interests of which
are held in a limited partnership consisting of more than 5,000 separate interests and where no one person or entity
holds more than a total of 5% of the ownership interest in the limited partnership.
9
MIAMI 971853.2 7592420873
CERTIFICATION OF RESOLUTIONS
Property Address: 17900 H.E. 31'1 COURT
Folio #: 28-2210-050-0020
Legal Description: See Exhibit A
.Attached herewith, please find all of the Resolutions corresponding to the above listed property. The complete
listing of Resolution numbers for the property is as follows:
RESOLUTION NO.
RESOLUTION NO.
RESOLUTION NO.
RESOLUTION NO.
RESOLUTION NO.
RESOLUTION NO.
This form must be signed by a Miami-Dade employee from the Zoning Information Section.
Signed:
Date:
Title:
You may contact: Miami-Dade
Zoning Information Section
111 NW 1" Street, 12"'Floor
Stephen P. Clark Center
Miami, Florida 33128
(305) 375-1806/1807/1808
.See Exhibits D and E
10
MIAMI 971853.2 75.92420873
City of
Aventura
Government Center
19200 West Country Club
Aventura, Florida
Drive
3j180
APPLICANT REPRESENTATIVE AFFIDAVIT
AND
BUSINESS RELATIONSHIP AFFIDAVIT
INFORMA TION AND INSTRUCTION SHEET
The Applicant Representative Affidavit and Business Relationship Affidavit are required pursuant to
Section 31-71 of the City's Land Development Regulations. Section 31-71 (b}(2) is attached.
I. Applicant Representative Affidavit.
One Applicant Representative Affidavit is required for each development permit. Submit only one
Applicant Representative Affidavit per application listing all representatives, not a separate affidavit
for each representative.
This affidavit must list all persons representing the individual or entity applying for the development
permit, including, but not limited to, all attorneys, architects, landscape architects, engineers and
lobbyists. This affidavit must be signed by an authorized representative of the individual or entity
applying for the development permit and the owner of the property (if different than the applicant).
The signature of each representative is not required on this affidavit, only the signature of the
individual or entity applying for the development permit and the owner of the property (if different
than the applicant).
II. Business Relationship Affidavit
A separate Business Relationship Affidavit is required for each representative listed on the Applicant.
Representative Affidavit. A Business Relationship Affidavit is also required for the applicant and the
property owner (if different than the applicant). . This form consists of three pages. On Page 1, state
whether or not a relationship exists by checking the appropriate box. The applicant and/or the
property owner signs the affidavit at the bottom of Page 1. For all other representatives, sign on
Page 2. On Page 3, the signature is sworn by a Notary Public of the State of Florida.
The Business Relationship Affidavit requires the individual or entity providing the affidavit to disclose
whether it has any business relationships with any member. of the City Commission or any City
Advisory Board and the nature of the business relationship. The types of relationship to be disclosed
are listed on Page 1 of the Affidavit as 2.i to vi.
Please be sure to properly complete and date al/ forms submitted.
PHONE: 305-466-8940 I FAX: 305-466-3277
www.cityofaventura.com
11
-
APPLICANT REPRESENT A liVE AFFIDAVIT
Pursuant to Section 31-71 (b)(2Xi) of tile City of Avent"ra Land Development Code, this Applicll1t RepresentaIIve AfIIdavIt Is hereby made and
submitted. The undersigned authorized representative of the individual or entity applying for the Development Permit, whlcll is identified in the ac:companying
application, and the owner of the property subject to the application (W different) hereby lists and identifies all peISOllS reprMenting the individual or entity
applying for tile Development Permit in connection with the application, as follows:
Name . Relationship (i.e. Attorneys, Arohltecls, Landscape
Arohitects, Engineers, Lobby/ala, Etc.)
R.T. Brinklev. II. Develooer Dan Fortin. Jr.. Enaineer
Jacaues Claudio Stivelman. Developer James P. Kellev. Develooer
Gilbert Benhamou. Developer Clifford Schulman. Esauire/Attornev
Stanlev B. Price. Esauire/Attornev James R. Helman. Develooer
Robert L. Krawcheck. ESQuire/AttornevCharles H. Benson. Architect
Brian S. Adler. Esauire/Attornev Marcv Kammerman. Develooer
Carl Skiles. Enaineer
(Attach Additional Sheets If Necessary)
NOTICE: ANY STATEMENT OR REPRESENTATION MADE BY ANY PERSON LISTED ON THE APPLICANT REPRESENTATIVE AFFIDAVIT
SHALL BE BINDING UPON THE INDIVIDUAL OR ENTITY APPLYING FOR THE DEVELOPMENT PERMIT AND THE OWNER OF
THE SUBJECT PROPERTY. APPLICANTS AND AFFIANTS ARE ADVISED TO TIMELY SUPPLEMENT THIS AFFIDAVIT
PURSUANT TO SEC. 31.71(B)(2)(1V) OF THE CITY'S LAND DEVELOPMENT REGULATIONS IN THE CITY CODE, IN THE EVENT
THAT PRIOR TO CONSIDERATION OF THE APPLICATION BY THE CITY BOARD OR COMMISSION, THE INFORMATION
PROVIDED IN THE AFFIDAVIT BECOMES INCORRECT OR INCOMPLETE.
WITNESS MY HAND THIS
DAY OF
2006.
AUTHORIZED REPRESENTATIVE OF APPLICANT: OWNER
SHEFAORlTARRAGON, LLLP, a Florida limited
liability limited partnership
By: Aventura Tarragon GP, LLC,
its General Partner
By: Tarragon South Development
Corp., its Managing Member
By:
Marcy Kammerman
Executive Vice President
12
STATE OF FLORIDA )
COUNTY OF BROWARD )
Before me the undersigned authority personally appeared as the authorized representative of the
Applicant andlor the owner of the property subject to the application, who being first by me duly sworn, did swear or affirm that helshe
executed this Affidavit for the purposes stated therein and that it is true and correct.
AFFIANT
SWORN TO AND SUBSCRIBED BEFORE ME this _ day of
2006.
Notary Public Sta~ of Florida At Large
Printed Name of Notary
My commission expires:
13
MIAMI 971853.2 7592420873
_. .... ..--- -. _. -...- -....-.---. ....-....... .- .--.-----........-.-.-..------- --.-. -
fa
BUSINESS RELATIONSHIP AFFIDAYIT*
ThIs A1lldavIt Is _ pII1IUIII11lD SectIal31-71(b)(2)(iJ of the CIty It Avenl1n Land De\lliopmIln1 Code. The undt....,...d AlIls1I heIeby ~ 1h8t
(mBltl wIlh ''I BpJbbIe perlin OI1Iyl '
pq 1. Affiant does om ha'Ill e BusIness RoIaIIanshlp wlIh any mermer 01 the CIty CorMission or any CIty AcMsoly Board \0 wlIIch '
the eppIceIIon wII be preeented.
[ ] 2. Affiant heIeby dlsclooes 1haI h does have B Business RelalIonshIp wIIh B member 01 the CIIy ConmIsslcrl or B CIty AdvIIoIy
Board 1owh1ch 111. appIlca1Ioo wi. be presanted. as follows: '
(Ust name It Commlssloner Q'. ~ Bead Menter) ~ _ on the
(Ust CIty ColmisUln or CIty Ad-.tsory Iloerd upon which member_).
The lIllIura of the BuUlees Rela11onsh~ Is as foIows:
1I1.
1I1.
1I111.
Member of City Commlsslon or Board 1idds an _hip InlenlsIln IXC8SB 011 % 01 \oIaIlISSlllS or caphal8Iock
d ApplIcant or RepresentaliYe:
Member of CIty Commlssion or Board is B partner, aHharehoIder (as \0 shanls 01 B corpo..,AICh which Il1l naI
IIsled an any nBianaI 'or regial)ill s1Dck =hange) or Jain! venturer wtIh the Applicant Q' ReP.....,IloU~ In rnj
buslness WlI1Iure;
The ApplIcant or Represenla1lve is a CIienI of a member of the C"1\y Cammlssian or Board or B ClIent of anoIher
professianlll.warklng!ram the same ofIIce or,fa the same llfI1lllay8' as the'memller of the CIIy Cammlaalan or
Baanl; ,
A City Canmlssianer or Board member Is a ~ III the AppIk:an\ or Repres~;
The AppI'lC8IIt or Represenlaliva Is a Custamar 01 the member Ii the City Cammlsslan or Board (or d his or her
empIayerj and transaclS more than $10,000.00 d the business 01 the member althe CIty CammIasIan or Baerd (or
his or her IlII1pIoyer) In B given calendar yea; ,
[J vi. The member d the City CammissIan or Beard Is B CUstamer 01 the AppIicanI or Represantalive and Iransactll
more 1han $25,000.00 dthe busi1e6s oftheJ\ppl1canl or RepI......,illIM in B given caIenda' yea'.
WITNESS MY HAND THIS 20 DAYOF -::r;;!i",~'--I .2006.,
,
lilY.
[]v.
APPUCANT REPRESENT AlIVE:
,By,~N~P-~ ~)
DeY,Iopet
. .. t
'The !elms 'BusIness ,Relstiansllip: "ClIent: "Customer: "ftppbpt." "Representative" and "Jnte~sted PeIllOf/" al8 de1ined in ,
SacIIon 2-395 offhe AWlnlln CIty Coda.
MlAMI971853.17592420873
14
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavn is made pursuant to Section 31-71(b)(2Xii)of the City of Aventura Land Development Code. The underslgned AfIIant hereby discloses that:
(m with 'x' applicable portions only)
[Xl 1. Affiant does nol have a Business Relationship with any member 0I1he City Commission or any City AdvIsory Board to which
the application will be presented.
[ ] 2. Affiant hereby discloses that ij does have a Business Relationship with a member of the City Conmsslon or 8 City AdYtsoty
Board to which the application-will be presented, as follows:
(Ust name of Commissioner or Advisofy Board MembeIj who serves on the
(Ust City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
( I i. Member of City Commission or Board holds an ownership interest in excess of 1 % 01 total assets or capital stock
of Applicant or Representative;
(] ii. Member of City Commission or Board is a partner, co-shareholder (as to shares 01 a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
[I iii. The Applicant or Representative is a Client of a member of the City Commission or Board or a CUent 01 another
professional working from the same office or for the same employer as the member 01 the City Commission or
Board;
[I iv. A City Commissioner or Board member is a Client of the Appiicant or Representative;
(] v. The Applicant or Representative is a Customer of the member of lhe City Commission or Board (or 01 his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) In a given calendar year;
I] vi. The member of the City Commission or Board is a Customer of the Applicant or Representative lIld transacts
more than $25,000.00 of the business of lhe Applicant or Representative in a given calendar year.
WITNESS MY HAND THIS Q3 DAYOF r:r.....""'ot'f .2000.
(SignBlure)
'The tenns .Business Relationship,' 'Client,' 'Customer,' 'Applicant,' .Representative' and 'Interested Person' are deffned in
Section 2-395 of the Aventura City Code.
15
MIAMI 971853.2 7592420873
o
BUSINESS RELATIONSHIP AFFIDA VIT*
This AfIIdaoIiIIs made pmsuanl jD SedIon 31-71(b)(2)(l1) of1he CIIy of A'IllIIlIn Land Cevelopmenl Cadi!. Theuhdl"dIy...d AIlIIIt l1Inb1.t...l,.... \hit
{martt w\lb ~ applicable portlons qnIy)' .
. .
lXI1. AftIanl OOBS m have a BusIness Ralal1onsh1p wfth 111)' rnenmer of1he CIIy Cctm1IssIon II" 111)' CIIy hMay Bc8ll1o wttiI
1he appl1caIIOIl will be presen1ad.
, ()2.
AIIianI hereby dlscIC88S that H does hlrIe a' Buslnesll ReIalIcnshIp with a mambar ol1he CIIy ComIris8laR II" 8 CIIy AdvIIcly
Board toYOhlch \he 8llPIIcaIIcn....i be p,_,I8d, aa ItlIIaM:
(lIsI nama 0/ Con1Jris$1OOer II" NMaay'.BoarII ~ wIlD _ III tile
(lIsI CIly ~ or CIty AdvIsay BoarIIIIplII which membar_~
The na1IR ollhe Buslness ReIalIonshIp Is as fuIIcMa:
(1 L Member,a City ComnIssIon or Board holds an trMlBIBhlp InIeiesIIn eXcess of 1% of ~ aa8lllI II" capIIIIIllDck
Of App1icanl or RepnlsentaIIve; .
fl D. Member a City CoIMisslon or Board Is e partner, l>>6hllllholder (as \0 shlraa 018 CDoJA"ldk.i which .'not
Iistad en any nat~ or regional stook eia:hange) or janl' WlIlbJrar WI!h 1he ApprICllt or ~.....lblllill iI any
business venlure;
[] m. The ApprIClll1t or ReplllS!l11talive Is e CIenl d a member a 1he CIIy CommlssIon or BoIId or a CIIinl olll1Olher
jlrofesslenal working fn;1m 1he same oIfice or fer 1he same employer as the member oflhe CIty ConvnIIillllI or
Board; .
[] Iv. 1\ CllyComnissloner or Board member Is a CIienl a \he AppIicIIlI or Rq......tlaII~
II v.' The I\ppIicant or RepI8Slllltative Is a Cus\omer d 1he rnerOOer oflhe CIty Commlsslonor BoarII (Ill of his II" her
employe) and transacts more than $10,000.00 d!he busilass of the member 0/ \he CIty CcimIlIsIIon or BoIId (or,
his or her empOyelj In a s;van calend.. year,
[] vi. The member 0/ !he CIIy Convnissien or Board Is e eu_ 0/ Ihe Appl1canl or RspI-maBve IWl -
more 1I1an $25,000.00 c11he business c1\he AppI"IClllI\ or Represantatlve In a given caIendlir,..
WITNESS MY HllNO lHlS k DAY OF -r;;;,...v,A.r:-i. 2006. '
.
By:
'1l1e ienns "BuSIness Relationship,' "Client: "Customer,' "Applicant:' "Represertl""" ,nd "/nielllslef! Person" 81lI deIined In
Section 2-395 of tfJe Aventura City Code.
16
MIAMI 971853.1 7592420873
_ "~'___'_e_ ....__._....~.__._.
o
._.~-- ._.~._ __.~.________..._.."""_ __.___._~__.___.._.~ .._._._.._ ._.J".......... __ __..
BUSINESS RELATIONSHIP AFFIDA VIT*
ThIs AflkIavt Is made ptJfIU8I1t \0 SeclIaI31-71(b)(2)(lQ It the CIIy It AvenI1n llnI De~aIoImll~ COde. The lIIdlni!Jled AftllI1l henlby cbcIoIeB 1IIIIt
(1IllIIk wlIIi "If lI!lllIlceble JX*ns only)
\XII. AftiIInl does [Ill\ IuMl B Buslness RBIBtIonshIp wllh any m8lrbr It the CIIy CclmrrissIon cr fI'It CIIy MNay BoenIIo ~
the appI\cBlIon wID'be pceselJIad. .
. (] 2. AftilI1l hereby dscloses thai h does hawl a BIIIPm ReI~ with a member of 1ha CIly ComIriaaIon 1II a ClIY AdvIsory
Board lDwhlch 1ha IlIlPIIcalloo wll be prasen1ed, as folIoIIIs: .
,
(Usl nllll8 of CommIssIoner 1II AdvIsory BolId MemlleI) who __ on 1ha .
(Usl City CommIssIon 1II City AdvIsory Ilcerd upon which member __).
The natulB of the. BusIness Re1aIIOnsblp Is as IoIows:
(] I. Member d CIty CommIsslon or Board holds III ownership InIeIBsI it excess of 1% of tofaI 8S88IlI1II capltaIl1Ddt
of IIppbnt or Repleselllallve;
Ill.
IIBI.
APP\;JC/INT
By:
,
Member d CIty CommisSIon or Board Is a pllI1ner, lXHharaholdar (as to 8haraa of a corporalIon. which In nal
IIsIed on any national or regional stock axchange)lII joitt ....rar with 1ha /IppIic3lIlII RellraseulalMl it any
business ventIn;
The lIppIIcent.or Rapresentallve Is a ClIent ct a membar of lI1e CIIy CommIssIon or BolId or e CIenl of ancIhaf
professlcnal working Inim 1ha sane cftice 01 for 1ha same employer' as 1ha member of .... City CommIssIon 01 .
1!orId;
lilY.
IIv.
II ClIy CcmmIssloner Ii Board member Is a 0IenI of 111. /IppIlcant or ReplBsentallve;
The ~ 01 RaprosBl rtldIve Is a Customer of the member d the CIIy CommIaslon 01 Board (cr of his or her
~ end lransacls more th.n $10,000.00 of the business of the member of 1ha CIty CommissIon or Boonl (or
his or her empioylll) In e given calendar year;
The meinber 0/ the CIty CommisaIOIl or Boanlls a Custllmer Ii the ApplIcant or RepIBsenIaIiva lIld InInsads
more 111.. $25.000.00 Ii the business Ii the Applm1I or R8pmsemauve In a.given calendw yew. .
DTliI~D/lYOF ~1"i1\v'C.v-o. :lOO6.
. \
II vi.
S/gn8tuIa)
"The terms 'Business RalBtionshlp,' 'Client,' 'Customer,' "/vlpIicBnt,' 'R8fJIe88n1etiva' and. '/nt8f8Stad Parson' Bra defined In
SecIfon 2-395 of the Aventura CIIy Code.
MIAMI971853.1759242D873
17
o
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavit is made pursuant to Section 31-71(b)(2)(ii) of the City of Aventura Land Development Code. The undersigned Affiant hereby discloses that:
(mark with 'x' applicable portions only)
[X] 1. Affiant does !!2! have a Business Relationship with any member of the City Commission or any City Advisory BolI'd to which
the application will be presented.
112. AffIant hereby discloses that 11 does have a Business Relationship with a member of the City Commission or a City AdvIsory
Board to which the application will be presented, as follows:
(Ust name of Commissioner or Advisory Board Member) who serves on the
. (Ust City Commission or City Advisory Board upon which member serves).
The nature of the Business Relationship Is as follows:
lIi.
Member of City Commission or Board holds an ownership interest in excess of 1 % of total assets or capital stock
of Applicant or Representative;
lIii.
Member of City Commission or Board is a partner, co-shareholder (as to shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative In any .
business venture;
lIlIi.
The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professional working from the same office or for the same employer as the member of the City Commission or
Board;
II Iv.
A City Commissioner or Board member is a Client of the Applicant or Representative;
II v.
The Applicant or Representative is a Custonier of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) in a given calendar year,
II vi. The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more than $25,000.00 of the business of the Appiicant or Representative In a given calendar year.
WITNESS MY HAND THIS )4' DAY OF ~r"")- 2006.
~~
BRJAN . ADLER
Attorney
(Signetu,")
'The terms 'Business Relationship: .Client: .Customer: .Applicant: .Represantative' and .Interested Parson' are defined in
Section 2-395 of the Aventura City Code. .
18
MIAMI 971853.2 7592420873
01/27/2006 10:05
3054666606
UPTOWN MARINA LOFTS
FORTIN LRA\~ SKILES
IF'TOWN MARINA LOFTS
PAGE 02/05
1aI002
,.AGE: 02/05
01/27/0a FRr 08:49 FAX 305 65l. 7152
01/27/2006 09:34 3054~~66a6
.'
'.
~
BUSINESS RELATIONSHIP AFFIOAVIT"
Thil: AIftd1.III. mild. p1JTIll3IIt'o SectIon 31.71Ib)(2){1IJ DlIho CJly ot A.on\1.ll'llonll Cewlopm8ll1 Code. Tl1olll1d11J1\9Ml1Aftlant horelly -.... thol:
Irnarll with .~ mlicob1e poniono o~IYI
Af!lant do.. em I,ovo . Bu.ln... RoIlIIlorIohip ""Ill .ny .-, '" 1M CiIy Commlnlan or ony C1lli MlI"ry _Ia WI'lclI
\he epp\icllllon WlI be p......,I.d.
AfIIonl IImby dI.ol..Olllhol B .DO' _ . Buolnos. ~lllIionlhi!l. t memt>or or Iho CIty CommInIaII or. Q~ 1\IMJOlY
e..R11o which tIl. oppIIcotIon wm be pnI....ted, 01 follow"
rust ..me dI CarnrnlMlonor or AdvIocry Bcllld Momborl W!la _ .. IIIil
(Lbt City Cammiulan or CII:I AdviSory Soard upon which l1II1l1ber-l.
pq 1,
I l2,
Ill.
TIle nol... or In. 5..1..., R.I.OonsNp I. el fell...."
WITNESS MY HAND THIS _ DAY OF
::~~ ~
CARL SKI/.ES
Engineltr
UIl,
[]1Ii.
!o1omlm at CII1 comml..icn or aoerd holds an owne..hlP Inlemlln""" 011% of Iollll...... or oapiIIIllIock
or App"...l or Rt",...nl8li'1ll;
Momller llf Clly Commi.~.. Of Bon Is . p'~"'" ....hll'Oh<>1Ilor (.. to 111_ 01 e oorporelIan which ..,; I1Cl
1\o1Od on ..y .ellcnol or 'llfiI1onal ....k 1llOh1llgll) or JaI" vtn\1.l,.,. with Ihe Appficont or RllplllIIlMllII'II! In IIII't
b"""".'en!\n; .
TII. AppllOllnt Of Repros"'1la1i.. I. . Client ore mombor of 1he CIly Commlal.. or ACIl'd or . C1ler1l or -
,_lena wer\clJ>g ff!I!I\ tile same alfp:e or lor the ~ _mplayer .. 1he mombor ~ Ihn CIty CarnmiosklII or
Boerd;
Ill'.
Il ..
A CII7{ Comml"loner or Iloonl mvmber 10 . C11.nt Cl! \he AppR",nl or Ileprgo_~'o;
Th. AppH,,",,1 or Rnp""'''''1Ivtl b . Cll._ of IIIe "",mber.r lh. City C_icn or llaol'd {'lfol hIo or hor
",",,\eyer)"'d lre....eII mlllllthln 5'0,000.00 of Iha bUlln... of Ihl mombIrof1he City C.rnminlcm or Baon! (or
his arhor...~oyerll. e gl.en CIIend&ryYt;
The "",mile' oflh. City Cammi"*h or Soerd 1. . CU_lIf at tho Appllllonl or RIlpIII_U" end \IInoOCt!l
"'.... then $25,000.00 of 1h. bu.I.... oIlho APpD..nl or ReprgonnlBllvo in . given celendor Yllll'.
[lvi.
2005.
r~pnsruJ1ll)
'1ll. lef17l$ "Bu,in.,s Re/etionstlTp: .C/flmt: 'custome': .ApprlOllnt' 'RIIp~elllstlvf' .n~ 'In~d Plnlon" ere delllIGd in
Se.lion 2-395 cf the AvenI.... CIty Cod..
MIAMI 971853.2 7~e242C873
1G
.......- -- - _. -- -.----- --_'__.' ..____.____._ ____._..___.,_.___.__ _.__-"__.__.. __._____....._._.____... _. n.. .__._____
a
BUSINESS RELATIONSHIP AFFIDAVIT*
This AIlIdaYIt Is IIIlIIe ~ \0 SectIon 31-71\bX2)(II} 01 the CIty of Aventura Land Development Code. The u"dtoldlv.ed AlIlanI herebJ dsdoeeI thlt .
(lIBiwllh'x'~pat!alsDl1ly) .
!Xl 1. AftIant does I!l! have B BuslIlIlS8 RetaIIonshIp willi II1Y merrIler of the CIty CClImisslll., ClI any CIty AdvIsClIy BaIrd \0 which
1hB appIk1alkJn wi be prasenled. .
[ ] 2. AfIiart heraby dsc:kleas thai K dClIls have B Busr- RaIaImshIp w1tIJ B member of the CIty Cllrmissllln ClI B CIty AdvIscxy
BclIn:Illl wllJch the appIk:alIoo wll be prasenled, as fgQgws: .
(Us! name of CommIssIa1ar ClI' ArJvtI<<y Board Mambarj who _ (II the
(Ust CIty CommIsaIlII1 ClI CIty AdvIsay Ilolrd upllI1 v.1lIcl1 member 8lIVBI1. .
The IIlllIIre of the BuslIlIlS8 RalB1klns11Ip is as kIIklws:
Member of C1Iy Commls8loo ClI BlllId hcJIds lIllMl1elShlp flIaresl n excess llf 1% gf taIalllSSllls ClI capitllI mck
llf Appic:ant ClI Represen1atlve;
IoIember of CIty CommIssiCIl ClI BlllId Is B pslner, CCHlIerehlllder (as to shares of B corpclIBliCI1 wh1ch 118 Illll
Usted llIl any nallonal or niglonal stock 0l(Chan1Jl) ClIl<*It vanturer w1tIJ the ApplIcant 01 ~ n any
business venture;
Tl1a Applicant ClI Representative Is B C1lenlllf a member of the CIty Cllmmlsolllllllr Board ClI a Cllenlllf lI1lllher
. pmfesslonal WOI1dng from the same oflIge '" fa" the same ~ as the member llf 118 CIty CommIsaion ClI
BlllId;
. ^ city CommlssIaner or Il(Jard member Is a Cllenfofthe Applicant llr Represenlallve;
. ~ AppI1cant ClI Represen1aIIve Is a Cusklmer gf the member of the City Commlssloo '" BlllId {ClI of his '" her . ,
empklyerj IIIll! Iransacls nlIlI8 than $10,000.00 llf the business of the mamber gf the CIty Coo1TissIoo ClI Board (or
his ClI her ampIoyar) In B s;ven calendar year;
Il vi. The member of the C1Iy CommIssillll or Board Is . Cusltxner gf the Applicant '" Rap"....,lalIva and tJansai:ts
1TlClI81h1ll $25,000.00 llf the business llf the AppIk:anl or Rep'asan1alIve In a given calendlr year.
WITNesS MY HAND THIS~ DAY OF ::tA.Nll~t .2000.
'~~J~/ ~}
DANFORTIN,JR./
Eng/naer
ilL
IlIL
IlIU.
illY.
nv.
'The /elms 'Business Ralationshlp,' 'Clieilt,' 'Customer,' 'Applicant,' 'ReplB88ntative' end '/nteTBSfecf Person' 8IB defined m
Section 2.J95 of the Avenhn City Code.
MIAMI 971853.1 7592420873
20
f)
BUSINESS RELATIONSHIP AFFIDA VIT*
This Affidavtt Is made pursuant to Section 31-71(b)(2Xii) of the City of Aventura Land Development Code. The undersigned Affiillt hereby discloses that:
(mark with 'x' applicable portions only)
[X] 1. Affiant does not have a Business Relationship with any member of the City Commission or illY City Advisory BoiIll to which
the application will be presented.
[ ] 2. Affiant hereby discloses that it does have a Business Relationship with a member of the City Commission or a City Advisory
Board to which the application will be presented, as follows:
(Ust name of Commissioner or AdviSOlY Board Member) whO serves on the
(Ust City Commission 0< City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
[ ] i. Member of City Commission 0< Board holds an ownership interest in excess of 1% of total assets 0< capital stock
of Applicant 0< Representative;
[] ii. Member of City Commission or Board Is a partner, co-shareholder (as to shares of a <XlIpcution which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant 0< Representative In any
business venture;
[] Iii. The Applicant or Representative is a Client of a member of the City Commission 0< Board 0< a Client. of another
professional working from the same office or for the same employer as the member of the City Commission 0<
Board;
[J Iv. A City Commissioner or Board member is a Client of the Applicant 0< Representative;
[] v. The Applicant or Representative is a Customer of the member of the City Commission or Board (0< of his 0< her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission 0< Board (or
his or her employer) in a given caiendar year;
I] vi. The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more than $25,000.00 of the business of the Applicant or Representative in a given calendar year.
WITNESS MY HAND THIS _ DAY OF
APPLICANT REPRESENTATIVE:
.2006.
By:
(Signature)
JAMES P. KELLEY
Developer
'The tenns oBusiness Reiationship: oCiient: 'Customer,' 'Applicant,' oRepresentative' and Olnterested Person' are defined in
Section 2-395 ofthe Aventura City Code.
21
MIAMI 971853.2 7592420873
BUSINESS RELATIONSHIP AFFIDAVIT*
This Affidavit Is made pursuant to Section 31-71(b)(2)(Ii) of the City of Avenlura Land Development Code. The undersigned Affiant. hereby discloses that
(mark with 'x' applicable portions only)
1XI1. Affiant does !!2l have a Business Relationship with any member of the City Commission or any City AdvIsory Board to which
the application will be presented.
[ 12. Affiant hereby discloses that it does have a Business Relationship with a member of the City Conmssion or a City AdvIsory
Board to which the application will be presented, as IoIlows:
(Us! name of Commissioner or Advisory Board Member) who seMIS on the
(Ust City Commission or City Advisory Board upon which member seMIS).
The nature of the Business Relationship is as 1oI1ows:
[] i. Member of City Commission or Board holds an ownership interest in excess of 1 % of total assets or capital stock
of Applicant or Representative;
I] il. Member of City Commission or Board is a partner, co-shareholder (as to shares of a corporalion which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Repre$entallve In any
business venture;
I] iiI. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
profassional wor1<ing from the same office or for the same employer as the member of the City Commission or
Board;
I] iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
II v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her employer) in a given calendar year,
I] vI. The member of the City Commission or Board is a Customer of the Applicant or Representative and transacIs
more than $2~.00 of the business of the Applicant or Representative in a given calendar year.
. WITNESS MY HAND THIS L..A6t OF r~ 2006. . .
APPLICANT~:...
8y: A r:-~------rsignature)
,/ ROBERTL KRAWCHECK
Attorney
'The terms .Business Relationship: .Client: .Customer,' .Applicant: .Representative' and .Interested Person' are defined in
Section 2-395 of the Aventu1ll City Code.
22
MIAMI 971853.2 7592420873
I)
BUSINESS RELATIONSHIP AFFIDA VIT*
This Affidavit is made pursuant to Section 31-71(b)(2)(ii) of the City of Aventura land Development Code. The undersigned Affiant ~ discloses thai:
(marl< with 'x' applicable portions only)
[Xl 1. Affiant does not have a Business Reiationship with any member of the City Commission or any City AdvIsory Board to which
the application will be presented. '
[ ] 2. Affiant hereby discloses that ij does have a Business Relationship with a member of the City Commission or a City AdvIsory
Board to which the application will be presented, as follows,:
(Us! name of Commissioner or Advisory Board Member) who serves on the
(List City Commission or City Advisory Board upon which member serves).
The nature of the Business Reiationship Is as follows:
I] i. Member of City Commission or Board holds an ownership Interest in excess of 1 % of tolaI assets or capltaI stock
of Applicant or Representative;
I] Ii. Member of City Commission or Board is a partner, ro-shareholder (as to shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
I] iii. The Applicant or Representative is a Client of a member of the City Commission or Board or a Client of another
professional wor1<ing from the same office or for the same employer as the member of the City Commission or
Board;
I) iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
[J v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commission or Board (or
his or her ernpioyer) in a given calendar year,
11 vi. The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more than $25,000.00 of the business of the Applicant or Representative in a given calendar year.
WITNESS MY HAND THIS _ DAY OF
APPLICANT REPRESENTATIVE:
.2006.
By:
(Signature)
JAMES R. HELMAN
Developer
'The terms 'Business Relationship,' 'Client,' .Customer,' 'Applicant,' 'Representative' and 'Interested Person' are defined in
Section 2-395 of the Aventura City Code.
23
MIAMI 971853.2 7592420873
.
.
BUSINESS RELATIONSHIP AFFIDA vir
Thil fJfidayft Is made pulSU8llt \I) Section 31.71(b)(2)(II) of Ihe City of Avenlura Land Development Code. The Ufldersipd Aftianl her8by discIo&eIlhaI:
(_ wttti 't' awlcoble poItions only)
[XJl. AftIlIlI does llS!l have a Business Relationship with any memller of !he CIty CommissIon or any CIty NMtay Boan:I \0 whidl
Ihe appI1caIIon will be presented.
I ) 2. Affiant hereby discloses 1hal ~ does have a Business Relationship with a member of !he CIly CommIssIon or a CIty Advlsary
Boan:IIo which Ihe appI1caIIon wID be presenIed, as follows: .
(LIst nama 01 Commlssionar or NMtay Boan:I Member) who ...... on Ihe
(Ust City Commission or Cily NMsory Boan:I upon which member ......).
The..aura of Ihe BuSiness 'Relationship is as follows:
(I i. Member Ii CIty Corrmisslon or Board holds III own<nlIip i_ in excess Ii 1% of 1claI _ or capilal stock
of AppUc:ant or Reprasentalive;
[I U. Mamba< Ii CIty CommIssion or Boan:IIs . partner, ~ (as 10 shaIlls Ii a COIpolallon whidl 8Ill not
listed on any nalionaI or ragionaI stock axchanga) or jolnI venturer with !he AppIicanl or ~ in any
business venIuIll;
II Ii. The AppIicanl or Representative Is . Client Ii . member Ii !he CIty CormissIon or Boan:I or a CIlent Ii anoIher
professional wor1<Jng from tha same ofIice or forlhe same employer as Ihe rnernbef of Ihe CIty Commission or
Boan:I; .
[I Iv. A CIty CommIssioner or Board member Is. Client of the Applicant or Representative;
I J v. The ApplIcant or Rapresentative Is a Customer of the memba< Ii the CIIy CommIssion or Boan:I (or of his or her
ampIoyar) and transacIS more than $10,000.00 0I1Ile business Ii the member of lhe Cily CommIssion or Boan:I (or
his or her empIll'f8Il in . given caiendar year;
() vi. The member Ii Ihe CIty Corrmission or Boan:IIs a Customer of the ApprIC8l1I or. Representative and IllNaClS
more than $25,000.00 of Ihe business of the AppIIcanI or Raprasanlalive in . given <:aIendar yeat.
WJTNESSMYHANDTHIS~YOF Jf1-v 2006.
By:
SignaIuI8)
"The terms 'Business Relationship,' 'Clieht.' 'Customer,' 'Applicaht.' 'RefJll1S8htatlve' and '/hteres/ed Person' 8/8 defined In
Section 2.395 of the AventUlll CIty Code.
25
MIAMI 971853.2 7592420873
. ---- --. --- - --------- -------- -.---..-----.---------..--.-..---- .---.-....--.---.. ..-...-..----.------.. -.-
. .
-
BUSINESS RELATIONSHIP AFFIDAVIT*
ThIs AfIklavlIls made pur&UlI1t 10 SeaIa131-71(bX2)(lI) or the CIty of Aven1UnIllI1d llMIop,lBId Code. The underlllpd AfIIIIll hllIBby clldoRI tIIIII:
(11llI1I with ~ applcable porIIons only)
lXI1. Atfilri ckles I!!l! have a Busi1ass Relationship with lilY rnanter or lhe ctty ComIrlsaIon or 11ft CIty MWiay IloIrd to whlch
lha appl1calIcn wiD be p!llSeIlIed.
I ] 2. AIIIlIll hareIij lisdoses that tt does haIIe a Busi1ass ReIatICl'I8hlp with a member or tha Cly CommIIlIlon or a CIly MWiay
Baanlto whIc:h the IIppilcaIIon will be pfel!lll1l8d, as!tllaws:
(Ust nama or Cun"niSslcll8r. or fvMMrf '1loIrd MembeIl wllo _ 1in the
(Ust CIty Cu.'U1Iiloslc1, or CIty MIr4<<y Board uponwhldl member_~
The nalIn or tha Business RelaIIonshlp Is as foIIaws:
[] I. !!amber of Clly Conunlsslon or Board hokIs an ownership IntenlBlln excess of 1% oflllllll asselI or capIlaI8lDck
of Applicant or RepresenIaIIve; .
[J i. Member of City CommIssIon or Baanlls a paMer, co-shar8ho1der (as \0 shins of a ClJllOI8Iian which n not
Hsted on any national or Illlllonal sIDCk mhange) llI' )oint venIII1lI" wllh the AI!PIQant or RIl!o....dIIIve In lIlY
buslnBss \OllI1Ul8; .
[J 111. The Applicant or Represan1a1lve Is a CIIanI or a member or IhB City Comrrisslm or IloanI or 8 CIaIt of anolhar
professional wa1<Ing from lite same oIIIce or lor lhe seme 8fTlIlkrl'er as the member II lite CIty Cu.,.,....., or
~. .
(] Iv. A CIty Commissioner or Board member Is a C1ianl of 1he AppIIcanI or ~;
[J Y, The AppIk:ant or RepresentaIive Is a Customer of the member of lite CIty CommissIon or Board (or II hie or.her
IlIl1!lkwl EI1d transacls more lhen $10.000.00 of the busIn8ss of the member of the CIty CommIssIon or IloanI (or
his or her employer) In 8 given calendar year; .
(] vt. The member of the CIty CQrnmIssion or Board is a CIjS\omer of the ApplIcant or RepresantaIIve and InIi1sacls
more than $25,000.00 of the business lllheAppllcant or Represen1a1Ive In a ~tvan calanclaryae:.
DAYOFJr4I1.10, 2006,
By' ~
"TI18 terms 'Business Relationship: 'Client' 'Customer.' 'ApplicBnt.' .'Represent8!ive' end '/r7feresled PaI8Oll' B/8 dBtined In
Section 2-395 oflhe AventUlll CIty Code.
j
j
25
MIAMI 971853.1 7592420873
.
~.........
BUSINESS RELATIONSHIP AFFIOA Vlr*
This Affidavit is made pursuant to Section 31-71(bX2)(ii) of the City of Aventura Land Development Code. The undersigned Affiant hereby discloses that
(mark wtth .~ applicable portions only)
pq1. Affiant does not have a Business Relationship wtth any member of the City Commission or any City Advisory Board to which
the application will be presented.
[ ]2. Affiant hereby discloses that ij does have a Business Relationship wtth a member of the City Commisslon or a CIty Advisory
Board to which the application .will be presented, as follows:
(Ust name of Commissioner or Advisory Board Member) who serves 0/1 the
(List City COITlITIission or City Advisory Board upon which member serves).
The nature of the Business Relationship is as follows:
[] i. Member of City Commission or Board holds an OWI1eIllhip interest in excess of 1% oflotal assets or capilaI stock
of Applicant or Representative;
[J ii. Member of City Commission or Board is a partner, co-shareholder (as to shares of a corporation which are not
listed on any national or regional stock exchange) or joint venturer with the Applicant or Representative in any
business venture;
[ ] iii. The Applicant or Representative is a Client of a member of the City Commissioo or Board or a Client of another
profesSional wor1<ing from the same office or for the same employer as the member of the City Commissioo or
Board;
[ ] iv. A City Commissioner or Board member is a Client of the Applicant or Represenlative;
[J v. The Applicant or Representative is a Customer of the member of the City Commission or Board (or of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Commissioo or Board (or .
his or her employer) in a given calendar year;
[ ] vi. The member of the City Commissioo or Board is a Customer of the Applicant or Representative and transacts
more than $25,000.00 of the business of the Applicant or Represenlative in a given calendar year.
WITNESS MY HAND THIS _ DAY OF
APPLICANT REPRESENTATIVE:
.2006.
By:
MARCY KAMMERMAN
Developer
(Signeture)
WITNESS MY HAND THIS
DAY OF
,2006.
PROPERTY OWNER:
By:
MARCY KAMMERMAN
Developer
(Signature)
'The terms .Business Relationship,' .Client,' .Customer,' .Applicant,' 'Representative' and 'interested Person' are defined in
Section 2-395 of the Aventurn City Code.
MIAMI 971853.2 7592420873
26
"or .-
81/27/2886 18:85
3854666686
UPTOWN MARINA LOFTS
FORTIN LEAVY SKlJ..HS
UPTOWN MARINA LOFTS
PAGE. 83/es
iI 003
PAGE B3/P.lS
01/27/06 FaL 08:49 FAX 305 SSl 7152
81/27/2006 B~:34 3854666606
WITNESS MY H#lO THIS 2:f.I DAY OF IT;rN V .4~\1 .2005.
. /
REPRE6!N~T1VE: (l.Istlld an _..... ~~on""Jp AIIlds.ll)
By; ($Jgnetu,.) El~ rSig/lllln)
R.T. SRINI<1.E'I. U DAN FOA11N, JI\.
Cewl/op., Engl_r
By: (SIgn.'"",) By: I.'''''')
JACQUES ClAUDIO lITlV1:LMAN CUFFORO SCH\JLMA~
OMIoper A/lt.lmsy
By: ISI!/1l_J By:
GILBERT BENHAMOU
0sv0I0per
By; (srQllotu,.)
$TANlE'f S. PRICE
AiIllmtY
ay: rSlgnlt~/'I!)
BRIAN ~ ACil.ER
Atl>I7loy
By: (SI9",,1""'! [S/D1rotUll>J
ROBERT L KRAWCHECK
El~~Wnij
CARL 5KIl.ES
En~
NOTE: 1l US. dllJlnerto .hllls II dl.el<l._ inlorm.Uon for ",.p.....ntatl.o vo""
2) API'Ucon....d Am...."", Idvlsed '" timely I\lppl","on~ tbi:l A.ffidevi!l'llr'!1llO' <0 Sec. 31-7ICb)(ll(lv) of
tIro CI!y'. Land Dov.lop""'IIl.oJl1l1aa"". l1l111e City Code, III Ill. ....... lbolp,,'" to co.siderlllon of tho
"PI'U.ali"" by tho Clly BOOl'll or C.",..,boinn, tho iDfann&tion provided ill the Affid.vil booo",.. inc:nrrool 01'
inc~:lIn'Pletl!'.
27
MI",MI 911953.2 7592420873
WITNESS MY HAND THIS _ DAY OF .2006.
REPRESENTATIVE: (Usted on Business Relationship Aflidaviq
By: (Signalute) By: (Signs/ure)
DAN FORTIN, JR.
Enginfir .
By: By: (Signalutll)
CUFFORD SCHULMAN
Attomey
By: (Signature) By: (Sign8lur8)
GILBERT BENHAMOU CHARLES H. BENSON
Developer ArchItect
By: (Signature) By: (Sign8lur8)
STANlEY B. PRICE JAMES P. KELLEY
Attorney Developer
By: (Signature) By: (SlgnatUl8)
BRIAN S. ADLER MARCY.KAMMERMAN
AItomey DeI'8loper
By: (SiglUllure) By: (Signature)
ROIlERT L. KRAWCHECK JAMES R. HELMAN
Attorney DeI'8loper
By: (Signature)
CARL SKILES
Engineer
NOTE: 1) Use duplicate sheets If disclosure information for Repmenlatlve varies
2) Applicants and Affiants are advised to timely supplement this Affidavit pursuant to Sec. 31-71(b)(2)(iv) of
the City's Land Development Regulations in the City Code, in the event that prior to consideration of the
application by the City Board or Commission, the information provided in the Affidavit becomes incomoct or
incomplete.
MIAMI 971853.2 7592420873
27
T -
- -- --- -..... ----------:----.--..--....,;--..--. ----------...------- --..---'--....--.----..:..---'----..- -------- ------
wfrNESSMYHANDTHISZO !>AYOF Ja'l,.l"'-"1 .2006.
REPRESENTATIVE: (1.Is\ed on Business Relationship AflIdavfl)
B~Jv.~ .
~~. ~-.-._.~ .
By:
By: By: (Slgnaltn)
JAMES P. KELLEY
Developer
By: (Slgnaltn)
MARCY KAMMERMAN
Dew/oper
By: (Slgna!ule)
By:
By:.
.
(Signature)
By:
igna!ule)
CARL SKILES
~~/g~m)
DAN FORTIN. JR. .
. EngIneer
.By:
(Slgna!ule)
CLIFFORD SCHULMAN
Atiomey
NOTE: 1) Use duplicate sheets if disclosure Information for Representative varies
2) Applicants and Affiants are advised to timely supplement this Affidavit pursuant to Sec. 31-71 (b)(2Xiv) of
die City's Lond DevelOpment Regulations in the City Code, in die event that prior to consideration of 1be
application by the City Board or Commi~ion. the information provided' in the Affidavit becomes incomct or
incomplete. . .
MJAMI971B53.1 7592420873
27
T- -
81/27/2886 18:85
01/27/06 FRI 08:50
~1/27/2886 89:34
3854666686
~.AX 305 651 7.1.52
3a546666a&
UPTOWN MARINA LOFTS
FORTIN LEAVY 5KJI.~;S
UPTOWN MARINA LOFTS
-... -.....- - - -........----.---'-...... --.---.......-.-..--------..---..-........--
wiTNess MY HAND THIS ~ pAY OF J 4I!oI.-.'1 .2DC&.
~ESENrA'llVE: lUI1ed on lluIIl)8lIII Rol.S.nohil> AlIIdoM1l
e~~ ~"'"'
. It . ifllNlQ.E{. II
~DI!'r .
~
By:
:Slgnmu/lJ
By. ~.ot.....)
RC .1.: KRAWCHECK
By,~~~~~.
CARLSI(IlE$
aJ/~~S~}
CAN PORml, JR, .
Eng/llHr
.Br-
(Slgna~)
CLIFFORD SCH(JLMA\II
AtloIlllY
PAGE 84/85
~004
PACiE 84/85
....-....--..-----
Nl1!'E: '1 U.. duplioll. .hlllbl ~ .n...lolIn Inforlllllll.n lor IlIp<Ullntlllv.l8I'Ill
2) AppllOlllllll an~ AfIl81113 or< oi:M!O~ 1zl1im.~ IlIIpPlom...t till. AtlldllYit pur.NB:llt t:l See. 31- 71(b)C1)(N) at
lb. clIy" LoOoIl tlr:Yoli,pmont RoJ!lllol!OIl! 10 1110 Cll3' Cod.. in lll. ovllll'C tbJIt Fl"" to ...,Jldlnll:illD of 'lb.
opplJ..t1aa b)' tho Cll:y:8<>ord or CCllll,"~lcm, 1holofbm>oIlDll pt'OYlded'iD !be Affidavit be"",:"",, InOOJftCt err
inoomple.
27 r3
MIA"'11l7185~.' 75112420873
WITNESS MY HAND THIS 23-4AY OF 7ft If/MIl. v .2006.
/
REPRESENTATIVE: (Usted 011 Business Relationship Allidavit)
By: (Signature) By: (Slgrllllut8)
R.T. BRINKLEY, II DAN FORTIN, JR. .
~veIoper Eng/nHr
By: (Signature) By: (SignatuIw)
JACQUES ClAUDIO STlVELMAN FORD SCHULMAN
~veloper AItomey
By: (Signature) By: (SignatlJl8)
GILBERT BENHAMOU CHARLES H. BENSON
Developer Architect
By: (Signature) By: (Sign8llft)
STANLEY B. PRICE JAMES P. KELLEY
AIIorney Developer
By: (Signature) By: (SIgnature)
BRIAN S. ADLER MARCY KAMMERMAN
Attorney ~veloper
By: (Signature) By: (SignatUlll) .
ROBERT L. KRAWCHECK JAMES R. HELMAN
AIIorney ~veloper
By: (Signature)
CARL SKILES
Engineer
NOTE: 1) Use duplicate sheets if disclosure Information for Representative varies
2) Applicants and AffianlS are advised to timely supplement this Affidavit pursuant to Sec. 31-71 (bX2)(iv) of
the City's Land Development Regulations in the City Code, in the event that prior to consideration of the
application by the City Board or Commission, the information provided in the Affidavit becomes incorrect or
incomplete.
28
MIAMI 971853.27592420873
NOT~nONPRO~~ON
STATE OF FLORIDA
COUNTY OF WJI.IlADE
_ mo, Ihe unclelsigned auIIoIIty, peIlIOIIOIy ~, R.T. 1lRIN1<LEY. II, Ihe AIIiI1I. who being li1t by me .u, ....., did _ or _1IIt_
_1I1IsA_for1hepurposes__ondlhallis....ondconecl.
R.T. BRINKLEY. II
SWORN TO AND SUBSCRIBED _ mo tis _lIII 01
2006.
Nol8Iy Pltic _ 01 ~ At lAIV8
PrinIod Nllmo 01 Nol8Iy
My """....iwiw.. upicw:
STATE OF flORIDA
COUNTY OF MIAAf.OAllE
_ mo, Ihe undoosigned auIhorily, peI>OIl8iIy appeaood, JACQUES CLAUDIO STIVElMAII.1he AIIIant. who'beiv li1t by mo
__lhIsAllldaYllb'lhepurposes__ .ndlhetlis....lII1dconecl.
JACQUES CLAUDIO STIVELMAN
SWORN TO AHO SUBSCRJI3CDbeIore me1his2(l..lIIIoI "JQI1U~.
G."'\"....~ MlUIEAMAOOR
l ," NoIaIy p_. StoIa 01 F_
. '. ~ Expiros Jun 14.2009
~'D044D815
_ By NoliDnlll NoIory AlII\.
did _..dimllol
STATE OF FLORDA
COUNTY OF MIAMHlADE
_ me, Ihe undeIsignecl .ulhoIiIJ, personolIy oppelIIlld. GILBERT BEHHAMOU. lie AtIlont. wl10 beiv list by mo 00Iy lIWIlIII, did _ or IIIim Ihet _
_1l1isAllldaYllforlhepurposesstlllod_ondthotllls.....ndconecl.
GILBERT BENHAMOU
SWORH TO AND SUBSCRlBED_ me 1his_lIIIoI
2006.
NoIary PublIc _ 01 F_ AllAlV8
Prlnlod Nllmo 01 Nol8Iy
MJ-oxphs:
STATE OF FLORIDA
COUNTY OF t.IAMJ.OAllE
_ me, Ihe lnlersignecl .uIhority, personoIIy .ppeBIOd, STANlEY B. PRICE, Ihe Atfiont. _ being filiI by me dldy lIWIlIII, did _ ex dim 11I\_
.,,,,,,,led lhIsAIIId.Yil Iorlhe purposes stllled _iWld 1hot I is bU8.nd conocl
STAHLEY B. PRICE
SWORH TO AND SUBSCRIBED _me lhis_lIII 01
2006.
NoIaly Pubic S10Ie of Florid. AI Lo'98
Prinled H.me of Hofory
My com..lisWM. expires:
28
MIAMI 971B53.2 7592420873
-_...~ -.- ~ -.... -.-.--- ---'""--------------.---. -... ..---~-----_._-_._-~._--_._-- ..-------.----.-----~.-.-.-
NOTARIZATION PROVISION
STATEOF~ I
COUNTY OF MIMt.oAIlE )
&em me, .. lIIdel1lgned authoilly, plll!lllllally appemed, R.T. BRItt<LEY, II, tho AtIalt whD _ fill by me ~ IIWlllI\, did - II dnn 1111I he/IIII
lllC8ClIl8dll1iAilda'<ll!llrthoJllllllllllllllllBllldllonlnlllllthBlftlsWeandClll1ll1 ~.. . ~. _ .
- I.~ =---...:-_ II.
. . /'i .R.T,BRI<LEY,II R...-r.'e i/'03~\.~)'%.
SWORNTOAND BUIlSCREED boIoIe me Ills Zi).day III ::::J A...;"..tt.F ~ ___
. NolaIy SIalll 01 AllaIgt
PmlodNome 01 NaIlIy
MI~..'-'''''
fI;"'~.
. . ::~~;:::;- .
STATEOF~
COUNTYa:MI."~
BeIoIe me, tho undel1\lned outhot1Iy, pe'''l!IIIly oppeallld, JACQUES ClAUDIO STIVEI.MAN. tho AtIIonI, who being fill by ine d..,...... del -... ollInnlllf
ho/she __ 11111 AftIdBvlforthe ~ 1IIBlIld....... and I1a\ lis true tnd CllI1II1
JACQUES ClAUDIO ST1I/EI.MAN .
SWORNTOANl SUBSCRIBED _ me lIb_doyol .2OIl6.
NoIIIy I'1bIk: _ of FIon!i M lIIgo
_ Nome 01 NClaIy
My_lonupRo:
. G
SWORN TO AND SUIlSCRIBED boIoIe mellls&!.. day III ),IAJ"'l-' 2llO6.
fot by me ddy,...m, del __... ollInn 111I_
STATE OF FlORIDA
COUNTY OF MJMI.tlADE
BeIoIe me, the undel1\lned IUlhorIIy, pelSOIlllIy Ippeared, GILBERT BENHAIoIOU, tho
OXIlCllIIldthlsAtidlvlfortho__....... Indhllls.1Iuelll1ClClll1ll1
,
.eu......,. DD4IU15
_By -,I
STATE OF FlORIDA )
COUNTY OF MAMI-DADE ) .
. _ me, the undeoslgnld lllI1hoIlIj. penlOIlBIy _1lIId, STAtUY B. PRICE,... ~ who boIt~~~.-n. del --... ollInn thllhoIIhI
ll!C0QIlsdIllsA_forthepulJlD5OS&latldtheralntndthllftIs1lueandClll1ll1 cg \.o"~
.. . STANLEYB .
_W~--~~""~'A~~~.. .
. . t" . '/,(/ (. I:z.. ..
. PrItl\IdNamoof ClaIy .
. 28 My commission expiIts;
MIAMI 971853.1 7592420873
....n1.."...... EUZABETH ORTIZ
f.f:i). ~ MY COMMISSION.DO 164469
12i, .; EXPIRES. Oeceniler 17, 2006
~:m-..:...~ 8ondedllvvPk:hanlInslnnCeNflttV:t
01i27/2666 16:65
01/27/06 FRl 08:60
01/27/2006 a9:~4
3654666666
FAA 305 651 7152
:1I'l54666606
UPTOWN MARINA LOFTS
~.Ui{'.l"lN LEAVY SKILES
UFT1JJJN MARIN,l. LOFTS
PAGE 65/65
IaiOU5
PAGE as/as
. '
---.-- -..., -....-. -,_...._.._,..,..-...~----,._...."";'......_.....,_. --..._...._~-...-.......-_.._.- ........--.-..--...
, . ,
iTATe OF FUlllIlIA
IIllUtm'OI'IlIU\fo1.QAllE 1
_~h___.__._h~.._._._.._-
",_fDrlho~_1h""'mul1htlllall\lUllit",I!IllI.' . "l:!;f ,
, J .ADL.ER -
aWCflolTOAllD8U18C1l.1~~...,.\"~ IlrfM2aII',
~oll!l7. ~P"t!"
r.\VCCl!Ml851ONfIlO1= P/1nIell_1ll 0'117
UP\~OS:o""r'l1,.._ ""_"""",
._""----. '"J ..
ST"ATe OF I'l.ClllID~ 1
CCllNlYCIF M1A~F, t
_III" 111I VI1Illllllnoll luIIIDIlly, lII11<1l'l111ll11flUlId, Cl\J\\.SKlLE8, ~ -7 tlIll>1 "" cIlIIV..... d1d__.'....h1I111ollo_11d
f1I'~"'hlru.p__1he"*'.IlJl\lullI.""'IIlI~_. ~/~~.'
SWOl\NltIANDSlJB&c1\lRllblllDIOmolll d ill 2OCII. II ~~
;,"~ SUSAN 1'.. ../.Ju.4
. ~. MYCOM.\lISSION#OD3D7'" '1"P~-~~ 'I '.
~ EX1'1RI!S:^,mIC6,lllll8 _ _ __
l~o)lOTM'" l'LNGIal)'Jll_I~Ca. JPl1I1btNIlnlI.at'(lI1II/Y
"""",.- . /iolJ--ap"",
nA'lIlClFFl.ORJIlA
eCUIIT'I 01' !,lIAMlollIIOe I
_"'"'''' UIldIIIlI!lnW~. _1IJy~~~. ~'_"".'''I1lI''lllvm.~.Iy_llIiI'''''''_''''-
"'ISIIollIlifoAl!lIdl'llrlI\1PIJ!1llllIllIlllIlldg,_..~dIl1lll1bh~ ~~ ~ '
, DAN FClUJM. JIl
SWOR~TOANIlSIJIISC!lIIla)~mID1ls~dir~VlW loaa. ~F _:
"'".,', HoIIllY alP_AtLaP
~-=;~= ',~::~,.1I1_'
\'7:1' ~_aJ."
lITA,;! tlF FLClIICA
ccIHlrCFMIA~
Jofo12lJ11, till q"""""",d~, l"=1llII1y ~
_1!l,"AflldI>II.lorlhll~~IillIld_~"'lIIft~""'IIld~,
li1loAIIImt..... bllnl! irsllly ...dllf_ dII:I_ ordlnl1 iIlIlholll1O
'swaIN '113 AIIC SUIlSCRIIl'/lll>ofo<tllll! ll1!I_dIl'al
.1IlllB.
, Ho\orfP.DJlDSlIIIlllfFJalll....t\.lllU.
PIll1I1dNIlITIOIlfNdl/J
29
MIAMlI71S53.' 75ll2~879
_.___ __.__.._____~ __ __ _. .._._......._._ _..... _ __. __ ___ _______.. __. _____. .h__.____........._________..._~_
STAlEOFF1..llRII>>. I
COUN'lY OF MWI-IWl!: ).
_...... IIlders"nocI ouII1oII\y. porsonoIy appeollld, BRIAN S. ADlER. \110 A~lIianI, who boIrvlial me duIt """'" lid _..._thoI__
..AIIIda>Il...1hoplllJlllOOS_......8IJIllIItllslruoandCllll8Cl.. . ~----------=-___ . .
. B ADLER
SWORNT()ANOSUBSCRIB~boIonlmO"~ dBy~H2l106. ~ .r;), /
tD ......- . 7/f ".li'~
~ MY COMMISSIOllI 00 164469 PIln1ed Name of NaIIr1
\ 1"' EXPIRES:()eceIItl8l17,2006 My.......~,OlqlIIIlII:
. ......__-- I
.
STAn;OfF1..llRll>>. )
COUNTY OF M1Al.f.llADI; ).
_ ... 1110 underslilnad 1d1otlly. pel3lllllllly ~, CARL SKIlES, 1l1a AftJoi1l. who boIrv InIl by me dUIJ _lid ........ _1hoI ho/Ihe IX8CIIllld
thIa AIIIdIrd...1ho ,...... _ ...... 8IJI thal'ls we and ClIII8CI. . . . . .
CARl. SKILES
2llO6.
SWORNTOAND SUBSCRIBED -. me"_ day Or
NoIlIy p,* Stall or FIar1da N.l8'1l"
_ Name..,"*",
t.tyUJII......I~
'.
STAn; OF FLORIlA
COUN1Y OFMW4OADE
_ ... the undars\lnocI auVlority. personally a~ ~JI1.., Aftianl, who boIrv firat by me d~ ...... did -;... - llIl heIIhI
..........,..~...1hopurpooas__.andlhal.1s1Nop- d~~,CJ~ ~ .
. DAN FORTlN. JR. '
SWORNTOANDSUBSCRIBED-.ma1lisfo day~UIW 2llO6. ~~ . ___
NoIary S 01 FIar1da N.lmUe
_ Name or NaIory
My ~ expinls:
.~--~ .
~.~ :::~:Z:'.
STAn; OF FLDRIlA
COlNTY OF MJAM..DADE
_ ... tie undersigned aU\!jolj\y. pelSOnBl\y apjIoanld,
exeartad...AlIi_ for tie purpooas _therell and.that lis we and ClIII8CI.
tie I\Illaft, who being iIISI by me duly ...... dld _ ... _1hoI heIIhI
SWORN TO AND SUBSCRIBED l>efora me tl1Is _ day or
.2llO6.
Nola" PublIc Stale of Florida All.8Jge
PIi1ted Nome of Notary
29
IJIIAMI971853,17592420873
STAlE OF flORIDA
COUNTY OF MlAMI-DADE
Before me, 1he undefslgned authority, peISOf1al~ appeared, ROBERT L. KRAWC HEC~K' 1he AIIia . being lirst by me duly sworn, did _or aftirm that_
executed Ihls AIlidavIt fer1he purposes sta1ed therein and lhaU is true and conect. -?'" ~ . _.
0~
, ROBERT L KRAWCHECK
SWORN TO AND SUBSCRIBED beIoIe me~O dayof~ 2006.~. . ~ .
~'~ EUZAIIEI1lORllZ NolaryPu~~.;,L ~(:.71-
Ql... MYCOMMISSIONIDD1640169 8J-/;;o.A /. /"Z
\oi : - EXPIRES: 0eceI00er 17, 2006 Printed Name of Notary
----- <'.. My_expires:
STAlE OF FLORIDA
COUNTY OF BROWARD
BeIonl me, 1he undersigned authority, personally appeared, JAMES R. HELMAN, 1he AIIiant, who being lirst by me du~ sworn, did _ or alllrm that _
execu\ad 1I1is Aftldavil fer 1he purposes sta1ed thelein and 1I1at R is true and conect.
JAMES R. HELMAN
SWORN TO AND SUBSCRIBED beIoIe me 1I11s _ day of
2006.
Notary Public Stale of Florida At l.aIga
Printed Name of Notary
My commission expires:
STAlE OF FLORIDA ) .
COUNTY OF MIAMI'[)ADE )
BeIonl me.1he undersigned authority, personally appeared, CLIFFORD SCHULMAN, 1he Alliant, who being lirst by me du~ sworn, did swear or aflInn that heIshe
execu\ad 1I11s Affidavit for 111. purposes stated thefein and 1het R Is InIe and correct .
CLIFFORD SCHULMAN
SWORN TO AND SUBSCRIBED beIoIe me 1I11s _ day of
2006.
Notary Public State of Florida At Large
Printed Name of Notary
My commission axpires:
30
MIAMI 971853.27592420873
.
STATE OF FlORDA
COUNTY OF MIAMI-DADE
lleIoIt me, the Ull<lln\Jnod 1IIl1hori11, pelSOl1ally appeared, ROBERT L KRAWCIEK, the AtlIant, who being tIrst by me duly _ cId ....... or aIIInn 1181_
exaculed1llsAllida'lllfarthe _.- _ an4ll1allls b"ua and COIl8Cl
ROBERT L KRAWCHECK
SWORN TO ANO SUBSCRISEO _ me tIis_ day of
2006.
NoBy Pubic SIlI..of_1oJ '"-
P_ Nome III No4Iry
Mr__..,Mlo.l expires:
STATE Of flORIDA
COUNTY OF BROWARD
Ilet<n me, the uMelSlgnod eU1hollly, personally appeared, JAMES R. HELMAN, the AIIIa.., who being tIrst by me duly _, cIId ....... or aIIInn 1I1el_
exaoulad JhIs_farthe _stated _in and II1at h Is IIue and COlTlld.
JAMES R. HELMAN
SWORN TO AND SUBSCRIBED before me JhIs _ day III
2006.
NolIry PublIc: SIll.. 0/ Florida At La'll"
PrinIad Name of Notary
My_explles:
STATE OF flORIDA
COUNTY OF MIAMI-DADE
Ilet<n me, the undel>ignod eu\llOrity, pelSOl1lll1y appeared, CUFFORD SCHULMAN, the AlIian~ wtlo being tIrst by me duly sworn, cIId ....... or ellimlll1at heIshe
_ this AlIIdevlt far the _ slated _ end thellls IIue end COIl8Cl
~j",
"-~~ ;
....."
Notary PubI~ Slate of FIonde
~eyla M Luc:es
My Com<T1lSSlOl1 D044a676
Expues 0912412009
31
MIAMI 971853.2 7592420B73
__......___.___.-.-._. J-.._..._._~'._.' '.~__._._._ __.... ._.______.___"--
"_ -'_ n___' _ .__".-.. .'--__._ _.__. ...._._ .________ ..__..__.. __u_
STATE OF FLORIlA
COUNTY!lf t.fAMI.DAllE
BeIar8 me. Ihe undtlllgneclllllharll1. perIllOIIlly ~ CHARLES H;
_thllAIIldavIllor"~_'-'andtl18lIIsWeond_
d~ _ dtI_lIIl111!mll1ll heIIhI
CHARLES H.llENsal
SWORNTOANDSUBSCRlBED_.mo~cIoyok/~.D-; .2llO6.
NdaIy
-"'..-0
/..':!:'1,..
//," ", ~
i~~~~i
~~,.J.'
Printed N
MJ
NOSNHOf' Yll390ll
STATE OF F1..ORIll.\
COUKTY OF IlROWARD
. IleIonl mo. the u_lgnod alllhol1lJ. p8IIDfl8Iy _red. MARCY KAMMERMAN. the Afl&II, Wbo bM1g tInIl by ... duly _ cId _ or aIIiIm \Il&I ha/Ih&
llXIlC>EdflIsA_forthepulJlllOlS_1l1anllnandthatllstJuaondCClllllOl. . .' . .
MARCY 1<At.t.elMAN
SWORN TO AND SUBSCRJIlBl beftn me this _cloy cl .2llO6.
Not8ly P__ oIFIot1d& A1~
, P1\1tI!d Namo of Nal&Iy
. My""'-Illqli"""
31
MIAMI971S53.17592420873
\
i
.
.
BUSINESS RELATIONSHIP AFFIDAVIT*
.. I .'
This Affidavit is made pursuant to Section 31-71(b)(2Xil) of the City of Avenlura Land Development Code.
(marl< with 'x' applicable portions only)
~
The undersigned Alllant henlby discloses that:
Affiant does not have a Business Relationship with any member of the Cily Convnlssion or any City Advisory BoaIlI to which
the application WIll be presented. .
[12. Affiant hereby discloses that it does have a Business Relationship with a member of .the City Cominission or a City Advisory
Boarlllo which the application will be presented, as follows:
(Ust name of Convnlssioner or Advisory Board Member) who _ on \he
(List City Commission or City Advisory Boam upon which member SOIVOS).
The nalure of the Business Relationship is as follows:
[I i. Member of City Commission or .Board holds an ownership interest In excess of 1 % of total assets or capital stock
01 Applicant or Representative;
[J ii. Member of City CommIssion or Board is a partner, eo-sharehofder (as to shares of a corporation which iIIO not
listed on any national or regional slocl< exchange) or joill venllKer with \he Applicant or Represen1atIve In any
business venture;
[J m. The Applicant or Representative Is a Client of a member of the City .commission or Board or a alent of another
professional worl<ing lrom the same office or for the same employer as the member of the City Commission or
Board;
II iv. A City Commissioner or Board member is a Client of the Applicant or Representative;
II v. The Appleant or Representative is a Cuslomer of \he memiler of the City Convnission or Board lor of his or her
employer) and transacts more than $10,000.00 of the business of the member of the City Convnission or Board (or
his Of her employer) in a given calendar year;
llvi.
By:
Name:
Title:
The member of the City Commission or Board is a Customer of the Applicant or Representative and transacts
more \han $25.000.60 of the business of the Applicant or Representative in a given calendar year.
WITNESS MYHANDTHISmOAY OFJ (L1\.. ,2OO_,f, .fi., "O~A... .
t'ch sel' ool:6~HA~
NOTARY PUBlIC OF NEW JERSEY
OUAUAED IN MORRIS COUN1Y
My Commlssk'. ElCIlIIes 1u.l/07
Signature)
. (Print)
Co e l) (Print)
WiTNESS MY HANDTHISWt\AY OF -:s a. ~
k
.200_.
~.
By: :a .
Name: (\.0........... "'^. <;"-'<-t>\"'(
Title: c.. C ()
(Signature)
(Print)
(Print)
'The terms 'Business Relationship: .Oient: .Customer: 'Appiicant: 'Representative' and .'nterested Person. are defined in
Section 2.395 of/he Aventura City Code.
.
, .
STAlE OF ~I NOTARIZATION PROVISION . \ p:.-
COUNTYOF e-..sl6~ __
BeIonI me, Il10 undOIl~ned o..oorlly, pOllOnoIIy eppoalOdJ.CI(),~ ""'. ~V Iho AftIanl, who be~ Ii1l by me cIuIy MIll, did ... or linn IhII
heIsho _1hIs AIIIda\t tlrll10 purposa otolod Iholli1lnd Ihollls INIlnd _
~~~
DOLORES HAYET
NOTARY PIIBUC Of NEW JERSEY
llUAI.HD IN MORRIS COtIf1Y
My Commlsslon ElcpIrBs 12M7
SWORN TO AND SUBSCRIBED bo!oII me 1I1~.J ~ of ~tI. f'\.
AFFIANT
2OO~
Nola1y Public SIIIII of
_NsnoalNoIIlIy
My-apIoao:
STAlEOFFLDRIDA )
COUNTY Of MIAMIllADE)
Bofora me, Iho undersigned aulhorlly, pemonely oppellllld
-_Il1IsAIId...i>rIhoPUlJlOOOSSlaIod _nlnd thltftlsllUolnd_
. tho AIIIInt. who bolr4lfill by me dlly -... did ..... or IIIIIrm that
AFFIANT
SWORN TO AND SUBSCRIBED be""" me IIis _ dB)' of
2OO~
NoIary Public Slall of FIorido JJ Larg.
PrInIod Neme of NolI1y
My COIMIisslon expiJes.
::Pi
STAlE OF FLORIDA )
COUNTY Of M~ADE)
BUlle me, !he IIlderslgned ....orily. polSOOaBy eppeored
- oxecu1ed Ihls _lor !he purpooes slalld !herein end lhallls IIUo end correcl.
!he Alfian~ who bo~ liIl by me duly .-n, did _ or I_that
AFFIANT
SWORN TO AND SUBSCRIBED before me Il1Is _ doy of
2oo~
NoliI)' PublJo SIIII of Floride /oJ. Large
PrinIod NIII'oIl of NoIIIy
My_loll explm'
STAlE OF FLORIDA )
COUNTY OF MIAMI-DADE)
. Bo""" me, !he undersigned eulhorl\y, pellOl1li~ oppeered
heIshe oxOCUllld Il1Is AftIcIBYIl for lhe purposeo _d !herein and !helftls IN, end correcl.
lhe AIIIllnt. who bOlng fill bymecluly.-n,d1d_or_1hal
SWORN TO AND SUSSCRIBED before melhls _ day of
AFFIANT
200_.
, :~:
Notal)' Pubic SIIIe of Flori:Io AI Largo
Prillld Nome of Notal'(
My commission expires.
. Exhibit A
, ,
. .
.
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I
, \
;
.,
Tract D of ADMIRAL'S PORT SECTiON ONE, aCcOrding to the plat
thereof, recorded in Plat Book 113, Page 51, Public Records ofMWni-
Dade County, Florida.
,
~
. .
~.
'"
Exhibit A
EXHIBIT B
DISCLOSURE OF INTEREST
SHEFAORffARRAGON, LLLP
A Florida Limited Liability Limited Partnership
L
Sbe'aor Development, LLC, a Florida liability limited company, Limited Partner
2999N.E.191"Street,#803
Aventura, FL 33180
30%
A.
Plan invest, In... a Florida corporation, Manager
2999 N.E. 191 Street, #803
A ventura, FL 33180
sO%
1.
2.
J. Claudio Stivelman, President
Marcia Stivelman, Vi.. P=ident
1750N.E.197"'TcmlCC
Miami, FL 33179
100%
B.
Estate Field Group, lae., I Florida corporation, ManBler
50%
1.
Gilbert Benbamou, President
165 Golden Beach Drive
Golden Beacb. FL 33160
100%
II.
Aventura Tarragon CP, LLC, a Florida limited liability company, General partner
200 East Las Olas Boulevard, Suite 1660
Fort Lauderdale, FL 33301
1%
A.
Tarragon South Development Corp., a Nevada corporation, Managing Member
200 East Las Olas Boulevard, Suite 1660
Fort Lauderdale, FL 33301
1000/0
William S. Friedman, Director
1775 Broadway, 23 Floor
New York, NY 10019
Charles Rubenstein, Executive Vice P<csident
1775 Broadway, 23 Floor
New York, NY 10019
Marcy Kammcnnan, Executive Vi.. President
200 East Las Olas Boulevard, Suite 1660
Fort Lauderdale, FL 33301
James M. Cauley, Jr., President
200 East Las Olas Boulevard, Suite 1660.
Fort Lauderdale, FL 33301
Bud Fagerli, Treasurer
200 East Las Olas Boulevard, Suite 1660
Fort Lauderdale, FL 33301
Eileen Green, Assistant Secretary
1175 Broadway, 23 Floor
New York, NY 10019
1.
Tarragon Corporation, a Publicly Traded Corporation
1775 Broadway, 23'" Floor
New York, NY 10019
100%
MlAM1 829544.5 7592420873
Exhibit B
m
Aventura Tarragon LP, LLC, a Florida limited liability company, Limited Partner
200 East Las OIas Boulevard, Suite 1660
.Fort Lauderdale, FL 33301
A.
Tarragon South Development Corp.. a Nevada corporation, Managing Member
200 East Las alas Boulevard, Suite 1660
Fort Lauderdale, FL 33301
William S. Fricdmllll, Director
1775 Broadway, 23 Floor
New York, NY 10019
Charles Rubenstein, Executive Vice President
1775 Broadway, 23 Floor
New York, NY ]00]9
Marcy Kammennan, Executive Vice President
200 East Las alas Boulevard, Suite 1660
Fort Lauderdale, FL 33301
lames M. Cauley, lr., President
200 East Las alas Boulevard, Suite 1660
Fort Lauderdale, FL 33301
Bud Fagerli, Treasurer
200 East Las alas Boulevard, Suite] 660
Fort Lauderdale, FL 33301
Eileen Green, Assistant Secretary
1775 Broadway, 23 Floor
New York, NY 10019
1.
Tarragon Corporation, a Publicly Traded Corporation
1775 Broadway, 23'" Floor
New York, NY 100]9
William S. Friedman, Director and Chief Executive Officer
] 775 Broadway, 23'" Floor
New York, NY 10019
Charles D. Rubenstein, EVGC
1775 Broadw8y, 23'" Floor
New York, NY 100]9
Kathryn Mansfield, EVPS .
3100 Monticello Avenue, Suite 200
Dallas, TX 75205
Todd C. Minor, EVPT
1775 Broadway, 2~'" Floor
New York, NY 10019
Robert P. RothcnbcrJ' Director, President & COO
1775 Broadway, 23 Floor
New York, NY 10019
Erin D. Pickens, EVCF
3100 MonticeUo Avenue, Suite 200
DaUas, TX 75205
2
MIAM] 829544.5 7592420873
1/19/06 3:06 PM
69%
100% .
100%
.
, '
.
If there is a CONTRACT FOR PURCHASE, whether contingent on this application or not, and whether a
Corporation, Trustee, or Partnership, list the names of the contract purchasers below, including the principal
officers, stockholders, beneficiaries, or partners. [Note: where the principal officers, stockholders, beneficiaries, or
partners consist of another corporation, trust, partnership, or other similar entities, further disclosure shall. be
required which discloses the identity of the individual(s) (natural persons) having the ultimate ownership interest In
the aforementioned entity].
Pinnacle. (oYY')fY)\)('Ir4-\t.S, L. L.(.,
Name
"11z.,~
Date of Contract
Name and Address
Percentage of Interest
10010'
"!"hI!. PI'n"""I... Cornp{u~~<. L,l...c..
~~ ~'fl~le. Cornpal"'lo'es I L. 1...0:::. .
_Y_(L. fa.r ~
R.andee s+ofo..r 10 '10
J:/ou)a.rd. :tit-u.};f"\ S'Uf""
m ; c.ha el Ca.n-t-o r S ,,/0
If any contingency clause or contract terms involve additional parties, list all individuals or officers, if a corporation,
partnership, or trust.
For any changes of ownership or changes in contracts for purchase subsequent to the date of the application, but
prior to the date of final public hearing, a supplemental disclosure of interest shall be filed.
The above is a full disclosure of all parties of interest in this application to the best of my knowledge and belief.
Plnn c.1 Comm..,ni-I..{(..s L.L.G. .
8,\' In U(... COn"> Ooriiu, L.t..c.. Pi(')T1a.c.I~ Covy)(YH.'nl+;'es~ L. L.C
Sign ture of AHrl .Il COrrt--(1::l.c.+- Print Name of Arp"--f1t Cord.raC:J. PUycna.se.r
pl.)rc.h~.sc..r
STATE OF /oJ;:r COUNTY OF Esse.x
The foregoing instrument was Swom to and Subscribed before me this 2..3 ..dday of .0- an . , 200 ~, by
lS""ti iY\. S~ I a.....L who is personally known to me or who has produced
- _ _ V t. f' _ \ C. '{. Y\. c:::.. ~ as identifICation.
Printed Name of Notary Public Signat~f~ ~
..
My commiH~r~lfllAYET
NOTARY PUBliC OF NEW JERSEY
aUALlRED IN MORRIS COUKlY
My CommlsslO1' lOxoires 1213/07
Note: Disclosure shall not be required of any entity, the equity interests in which are regularty traded on an
established securities market in the United Stales or other country; or of any entity, the ownership interests of
Exhibit C
Exhibit D
Page 1 of!
Robert L. Krawcheck
From: Joanne Carr [Carr J@cityofaventura.com]
Sent: .Friday, January 13, 2006 3:25 P,.,
.-
To: Robert L. Krawcheck
Cc: Eric M. Soroka; DWolpin@wsh-f1alaw.com
Subject: Application for Waiver from Moratorium
Attachments: PUBLIC HEARING Application for Waiver from Moratorium Ordinance3.doc .
Mr. Krawcheck:
I have attached the application form for completion and retum. Please note the application submission
requirements beginning at the bottom of Page 1.
In order to expedite this application, the following documents submitted with the site plan application in 2004 can
be considered to fulfill the waiver application requirements:
. Zoning history and signed Certificate of Resolutions
. Photographs of existing structures
. Opinion of Title dated December 1, 2004 and supporting documents. Note that this title report may be
accepted for the waiver application with your letter confirming that the title information remains the same as
indicated in the 2004 document.
. Survey of property dated December 4, 2004. Again, this document may be accepted for the waiver
application with your letter confirming that no changes have been made to the property boundary since
December 4, 2004.
For your convenience, I note that mailing labels were submitted in April of 2005 for an appeal application. While
these labels are too old to use for the waiver application, they were prepared by Florida Real Estate Decisions,
305-757-6884, on April 18, 2005. Perhaps they retained that record and can quickly update those labels for you.
Joanne Carr, AICP
Planning Director
City of Aventvra
/9200 West Country Club Drive
AventUra. FL 33/80
(305) 466-8940
Exhibit D
1/13/2006
Exhibit E
January 20, 2006
Joanne Carr
City of A ventura
19200 West Country Club Drive
4th Floor
A ventura, Florida 33180
RE: Public Hearing Application for Waiver Pursuant to Ordinance No. 2005-07 by
Shefaorffarragon, LLLP, a Florida limited liability limited partnership
Dear Ms. Carr:
Pursuant to your advice of Friday, January 13, 2006, we intend to rely upon the following
documents previously submitted in connection with an application for site plan approval:
I. Zoning history and signed Certificate of Resolution;
2. Photographs of existing structures;
3. Opinion of Title dated December 1, 2004 and supporting documents;
4. Survey of property dated December 4, 2004 .
With regard to the aforementioned Opinion of Title, to the best of my knowledge,
information and belief, the title information remains the same as indicated in the 2004 documents.
We will provide an updated Opinion of Title prior to the public hearing.
With regard to the aforementioned Survey, to the best of my knowledge, information and
belief, no changes have been made to the property boundaries since December 4, 2004. We will
provide an updated survey prior to the public hearing. Thank you for your assistance in this matter.
Very truly yours,
Marcy Kammerman
Executive Vice President
MIAMI 973761.1 7592420873
Exhibit E
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IN THE COURT OF THE
ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE
COUNTY, FLORIDA
SHEFAORffARRAGON, LLLP,
a Florida limited liability limited
partnership
APPELLATE DMSION
CASE NO. 05-392 AP
Petitioner,
vs.
LOWER TRIBUNAL ~; ~ ., 1
RESOLUTION NO. 2005-4& 5:
r"
THE CITY OF A VENTURA,
a Florida municipal corporation, et al.
u'
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Respondents.
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ORDER GRANTING MOTION FOR STAY OF CERTIORARI PROCEEDINGS
PENDING OUTCOME OF RELATED LITIGATION
lbis court having reviewed the Petitioner's Motion for Stay of Certiorari Proceedings
Pending Outcome of Related Litigation, applicable case law, and being duly advised in the
premises, hereby GRANTS the Petitioner's motion for stay.
Purchase ofProuertv
In August 2004, Petitioner, Shefaor/faragon, LLLP (Shefaor), expended $47 million
dollars to acquire 8.77 acres of property known as Lincoln Pointe which is located in the City of
Aventura. After acquiring the property, Petitioner Shefaor expended an additional $1.7 million
seeking site plan approval for redevelopment of the property involving an "as of right project".
In expending the capital for the property and its improvements, Petitioner acted in good faith
reliance on the prior rezoning of the property and a letter issued by the City of Aventura, on
April 7, 2004, confirming that the property was located in the RMF Zoning District. Location in
the RMF Zoning District gnaranteed permitted development of 60 dwelling units per acre.
The DeveloDment Process
As time progressed, the site plan approval process was subjected to a series of delays,
which Petitioner contends Was intentional. Purportedly, the goal of delay was to enable the city
STAlE OF FLORIDA. COUNTY OF DADEoflhe '!. ~ ::"'" ~
I HEREBY CERlIfYIhatIl1e ro.v~~. '/'tand -:ili 3
origlnllIon tie 1ft INs otflOO rts
HARVEY RUVIN, Clerk of Ci~=ty Cou
I'lP.DUtv Cierk ~
.'
.
ShefaorrrarragoALP vs. The City of Aventura
Appellate Case No. 05-392 AP
to impose a moratorium which would affect approval of the project and its development. The
city actually imposed this moratorium on June 7, 2005 under Ordinance No. 200~-O7.
Related Liti$!ation Proposed in the Circuit Court
The Petitioner contends that the moratorium ordinance was defective because it failed to
incorporate the elements of estoppel/vested rights that must be included in an ordinance as
directed by the city attorney. As a consequence, this makes the moratorium ordinance
constitutionally defective. Furthermore, the Petitioner maintains that the City of Aventura
Commissioners engaged in ex parte communications about the proposed project which is a due
process violation.
Court Analvsis
This appellate court notes that existing constitutional claims make it necessary for the
Petitioner to initiate a de novo action in the general jurisdiction of the circuit court. Miami-Dade
County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003) (the constitutionality of a
zoning ordinance must be determined in an original proceeding before the circuit court.). Even
so, this petition for writ of certiorari proceeding must be filed with the appellate court to preserve
the Petitioner's ability to appeal the earlier development decision rendered by the City of
A ventura City Commission. The appellate court has jurisdiction over this matter pursuant to
Art. V, ~ 1, Fla. Const.;1 Fla. R. App. P. 9.030(c)(3);2 and, Fla. R. App. P. 9.100(c)(2).3
Appellate courts may act on petitions for writ of certiorari pursuant to Fla. R. App. P. 9.1oo(ft
and Fla. R. App. P. 9.100(h).s
However, to proceed with the certiorari process in this instance, before the de novo
general jurisdiction action has been resolved, would more than likely result in a waste of judicial
resources. Permitting a court of general jurisdiction and appellate court to simultaneously deal
with the same issues, and possibly render two different decisions, which may then require
different appellate resolutions, could cause a disparity to occur in the progress of this matter. In
addition to expending more monetary resources, the Petitioner could have to defend against two
I Judiciary: Courts.
2Jurisdiction of Courts; Jurisdiction of Circuit Courts: Original Jurisdiction.
'Original Proceedings: Exceptions; Petitions for Certiorari; Review of Non-Final Agency Action.
'Original Proceedings: Review Proceedings in Circuit Court.
'Original Proceedings: Order to Show Cause.
2
" ., -
.
Shefaor/farragon, t.LP vs. The City of A ventura
Appellate Case No. 05-392 M
actions, general jurisdiction and appellate, with no guarantee of resolution of the underlying
controversy.
Given the above circumstances, resolution of the issues pending in the de novo action
could make the petition for writ of certiorari moot. As a consequence, this appellate court will
grant a stay of the certiorari proceedings until the de novo action has been resolved. Case law
states that "[ c ]ourts have the inherent power to do all things that are reasonably necessary to
administer justice within the scope of their jurisdiction, subject to existing laws and
constitutional provisions.',/; This inherent power can address incidents oflitigation as well as the
control of the court's process and procedures.7 Case law further advises that "[w]here two
actions are pending between the same parties involving the same state of facts and aiming to
accomplish substantially the same result, the court may stay proceedings in the latter action until
the other shall have been heard and decided and the same rule applies where the prior action is
pending on appeal."s
It is therefore ORDERED and ADJUDGED by this appellate circuit court that Petitioner
Shefaorffarragon, LLLP's motion to stay the writ of certiorari proceedings be GRANTED,
pursuant to the court's inherent power to administer justice within the scope of its jurisdiction,
address incidents of litigation, and control its process and p~ures.
DONE and ORDERED in chambers on this 1 day of~ at Miami-
Dade County, Florida.
urt Judge
cc: Stanley B. Price, Esq.
Robert L. Krawcheck, Esq.
Keith Marshall, Esq.
David M. Wolpin, Esq.
6 Brand v. Old Republic National Title Insurance Co., 797 So. 2d 643, 645 (Fla. 3d DCA 2001).
7ld.
8 Solomon v. Gordon, 4 So. 2d 710, 711 (Fla. 1941).
3
-,
.
.
IN THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
~
Case No.
Lower Tribunal Resolution No. 2005-
48
SHEFAOR/TARRAGON, LLLP,
a Florida limited liability limited
partnership
Petitioner,
1'r\t. QR\G\N~L f\LEO
ON OCl 07 2063
r. OH\er. Of
1M It\ URiO.MlE co. fl..
CIRCUli co
vs.
TIIE CITY OF A VENTURA, a
Florida municipal corporation, et al.
Respondents.
/
MOTION FOR STAY OF CERTIORARI PROCEEDINGS
PENDING OUTCOME OF RELATED LITIGATION
The Petitioner, SHEFAOR/TARRAGON, LLLP, a Florida limited liability
limited partnership ("Petitioner"), moves the Court to stay the present Certiorari
proceedings until the conclusion of related litigation which may render the present
Certiorari proceedings moot. In support of this Motion the Petitioner would show
the Court as follows:
MIAMI 934130.2 7592420873
10/7/0512:38 PM
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
.
.
The Petition for Writ of Certiorari in this cause was filed in an abundance of
caution in the event that related proceedings do not render the present Certiorari
proceedings moot. See copy of Circuit Court Complaint (without attachments)
attached hereto as Exhibit" A".
This case involves an 8.77 acre parcel of property in the City of Aventura
known as Lincoln Pointe. The Petitioner expended $47 million to acquire the
property in August, 2004. Petitioner acted in good faith reliance upon the prior
rezoning of the property by the City and upon a letter of the City of Aventura dated
April 7, 2004, confirming that the property "is located in the RMF4 Zoning District
which allows a maximum of 60 dwelling units per acre." A. 151-152.1 After
acquiring the property, Petition expanded additional sums in excess of $1.7 million
while seeking site plan approval for redevelopment of an "as of right project". 2
The site plan approval process was subjected to a series of inordinate and
unexplained delays by the City. The Petitioner believes the delays were in bad
faith, intended to prevent the Petitioner from obtaining the site plan approval to
which it was entitled so that the City could impose a moratorium and halt the
1 The abbreviation "A" followed by page number refers to the Appendix
accompanying the Petition in this cause.
2 An "as of right project" is one that can be administratively approved without any
required variances and/or any discretionary approvals by the City Commission
which would require a public hearing.
MIAMI 934130.2 7592420873
lOn/OS 12:38 PM
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 . MIAMI, FLORIDA 33131-5340
.
.
approval of the project and its development. The City imposed that moratorium
pursuant to Ordinance No. 2005-07, adopted June 7, 2005. A.86-93.
Although the moratorium ordinance contained a purported process for
affected property owners to establish an estoppel, or "vested right," to develop or
redevelop, the Petitioner believes that the City's ordinance is defective for a
multitude of reasons. These reasons include, inter alia, the patent failure of the
City to incorporate the very elements of vested rights/estoppel which the City's
own attorney stated must be included within the ordinance. Although the
Petitioner filed a "vested rights" application, and an appeal to the City Commission
from an adverse decision of the City Manager, the Petitioner did so by special
appearance, under protest, reserving any and all rights, objections and claims,
including those claims set forth in the related potentially dispositive de novo
litigation. A. 3-4.
The related litigation in the Circuit Court includes a claim that the City
Commissioners involved in this quasi-judicial matter engaged in prohibited ex
parte communications about this matter. In the case of Jennings v. Dade County,
589 So. 2d 1337 (Fla. 3d DCA 1991) the court held that where it is alleged in de
novo proceedings that there were ex parte communications with the quasi-judicial
tribunal, the affected party cannot be required to seek relief under common law
certiorari. The court held:
MIAMI 934130.2 7592420873
10/7/05 12:38 PM
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BtSCAYNE BOULEVARD, SUITE 2500 . MIAMI, FLORIDA 33131-5340
.
.
[S)ince the content of ex parte contacts is not part of the existing
record, such review would prohibit the ascertainment of the contacts'
impact on the commission's determination. This order [requiring
certiorari proceedings] has the effect then of so radically altering the
relief available to Jennings that it is the functional equivalent of
requiring him to litigate in a different forum. Thus, Jennings' timely
petition activates our common law certiorari jurisdiction because the
order sought to be reviewed (a) constitutes a departure from the
essential requirements of law, and (b) requires him to litigate a
putative claim in a [certiorari] proceeding that cannot afford him
the relief requested and for that reason does not afford him an
adequate remedy. See Tantillo v. Miliman, 87 So.2d 413 (Fla. 1956);
Norris v. Southern Bell Te. & Tel. Co., 324 So.2d 108 (Fla. 3d DCA
1960).
Id at 1340
Accordingly, we hold that the allegation of a prejudicial ex parte
communication in a quasi-judicial proceeding before the Dade County
Commission will enable a party to maintain an original equitable
cause of action to establish its claim. Once established, the offending
party will be required to prove an absence of prejudice.
Id at 1341-42.
Upon the aggrieved party's proof that an ex parte contact occurred, its
effect is presumed to be prejudicial unless the defendant proves the
contrary by competent evidence.
Id at 1341.
The related de novo litigation includes, inter alia, a count alleging a denial
of due process by virtue of prejudicial ex parte communications. Under Jennings,
the Petitioner cannot be limited to pursuing the remedy of common law certiorari.
Both the "Jennings" grounds and other grounds for relief that have been, or will be
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set forth in the de novo litigation may render the present certiorari proceedings
moot. Separate de novo litigation also includes, or will include, claims that the
moratorium ordinance is constitutionally defective. Like the Jennings claim based
upon ex parte communications, the direct challenges to the facial constitutionality
of the City's moratorium ordinance, including the purported "vested rights" process
contained therein, may not come within the scope of certiorari review of a quasi-
judicial decision.3
While it is necessary for Petitioner to bring the present certiorari proceedings
in an abundance of caution, these proceedings should not be required to go forward
unless and until the Petitioner is finally denied relief in the de novo proceedings.
To go forward at this point would result in the expenditure of judicial resources, as
well as the resources of the Petitioner and the City, in a matter that may well
become moot as a result of the de novo litigation. Under these circumstances this
Court should either stay these proceedings, or hold them in abeyance, until the
conclusion of the de novo litigation. See Solomon v. Gordon, 47 So. 2d 710 (Fla.
1941 ).
3 See Miami-Dade County v. Omnipoint Holdings, Inc., 853 So.2d 195, 198-99
(Fla. 2003).
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Respectfully submitted,
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Boulevard, Suite 2500
Miami, Florida 33131-5340
Attorneys for TCY Limited, Inc.
Telephone: 305-374-7580\
By: /.4 ~A_____
~tanley B. Price .
Florida Bar No. 143648
By:
/.:.7~
//~ . #~
Rubert L. Krawcheck
Florida Bar No. 128019
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
mailed this M day of ~'Otr ,2005 to: David M. Wolpin, Esq., Attorney
for the City of Aventura, Weiss Serota & Helfman, 2665 S. Bayshore Drive, Suite
420, Miami, Florida 33133 and Keith Marshall, Esq., Attorney for Biscayne Cove
Condominium Association, Concord Center, 2999 N.E. 191 Street, Suite 805,
Aventura, Florida 33180.
<~~~d/#-
R66ert L. Krawcheck
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IN THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY,
FLORIDA
Case No.
Lower Tribunal Resolution No. 2005-48
SHEF4\ORffARRAGON, LLLP,
a Florida limited lilibility limited
partnership,
Petitioner,
'U\E OR\G\~~\. f\\.EO
ott OC1 0 7 lnn~
E OffiCE Of
\lorn'" lRi oMlE co. f\.
CIRCUit cOO .
vs.
THE CITY OF A VENTURA, a
Florida municipal corporation, et al.
Respondents.
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PETITION FOR WRIT OF CERTIORARI
The Petitioner, SHEFAORffARRAGON, LLLP, petitions this Court for the
issuance of a Writ of Certiorari to review Resolution No. 2005-48 of the City of
Aventura, Florida entered on September 7, 2005. Petitioner invokes the
jurisdiction of the Court pursuant .to Fla. R. App. P. Rule 9.030(3), original
jurisdiction to issuance writs of common law certiorari.
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REQUEST FOR STAY OF THE PRESENT PROCEEDING UNTIL
CONCLUSION OF POTENTIALLY DISPOSITIVE RELATED
LITIGATION
The present Petition for Certiorari is filed in an abundance of caution in the
event that related litigation does not render the present Certiorari proceedings
moot. Petitioner has filed in this cause a Motion for Stay of Certiorari Proceedings
Pending Outcome of Related Litigation, which is incorporated herein by reference
as if set forth verbatim. A copy of the motion is included at A. 433-434. Petitioner
restates its request that these proceedings be stayed pursuant to said Motion.
BASIS FOR INVOKING THE JURISDICTION OF THE COURT,
AND STATEMENT OF RELIEF SOUGHT
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The Petitioner invokes the jurisdiction of this Court pursuant to Fla. R .App.
P. 9.030(3), original jurisdiction of the Circuit Court to issue writs of common law
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certiorari. As relief, the Petitioner respectfully requests that this Court quash
Resolution No. 205-48 of the City of A ventura, which denied vested rights to the
Petitioner A. 1-21, declare that the Petitioner is entitled to an affirmative vested
rights/estoppel determination on the grounds set forth in this Petition, and order
that the City conduct additional proceedings consistent with this Court's order.
I The following abbreviation are used: "A." followed by page number for the
accompanying appendix; and "T." followed by page number for the transcript of
the City Commission Vested Rights Hearing on September 6,2005 at A. 5-85. All
emphasis herein within quoted material is added unless otherwise indicated and
citations within quoted material are generally deleted.
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STATEMENT OF FACTS ON WHICH PETITIONER RELIES
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The Property
The property in question, known as Lincoln Pointe (the "Property") consists
of approximately 8.77 acres located at 17900 Northeast 31st Court, in the City of
Aventura. A. 147. It is presently developed with four low-rise residential
buildings. T.9. Petitioner, the "Owner", purchased the property in August of 2004
for the sum of $47,000,000 for the pmpose of redevelopment. T. 21. The
Petitioner purchased in reliance upon the City's prior rezoning of the Property to
RMF4, Residential Multi-Family High Density Residential. See T. 94-98. Prior to
purchasing, the Petitioner obtained from the City a letter confirming both the
continuing validity of the rezoning and the number of units which the zoning
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permitted. A. 147, 151-52.
Historv
As noted, the Property presently is developed with 4 low-rise apartment
buildings approved pursuant to a 1968 Dade County Resolution rezoning a
substantial portion of what now comprises the City of Aventura ("City,,).2 A 147.
The RU-4A zoning approved by the County permitted development of up to 67
units per acre, which allowed development of 659 units on the Property. Said
resolution also approved a private access road to this and a neighboring developed
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2 The property was originally located in the unincorporated area of Miami-Dade
County until 1995, which the City of Aventura was created.
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property known as Biscayne Cove. Id. After incorporating, the City of A ventura
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rezoned the Property to RMF4. A. 94-98.
Prior to acquiring the Property, the Petitioner asked the City to confIrm in
writing that the rezoning remained in effect and to specify the permitted density.
On April 7, 2004, the City issued a letter stating that the Property could be
developed as follows:
"The property is located in the RMF4 zoning district which allows a
maximum of 60 dwelling units per acre. Based on the lot area of
8.769 acres in the Miami-Dade Property Appraiser's records, a
maximum of 526 units may be permitted."
A. 151. The City's rezoning of the property allows high-rise development of up to
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400 feet in height and a density of 60 units per acre. A. 147. The Petitioner
continued meeting with City officials throughout the spring and summer of 2004 to
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confirm the effect of the rezoning and the details of the April 7, 2004 letter.
Relying upon the rezoning, as confIrmed in the City's letter, the Petitioner
purchased the property in August of2004 for the sum of $47,000,000. T.21.
After purchasing the Property, the Petitioner had numerous additional
meetings with the City during which it presented various draft site plans. A. 148.
The Petitioner then submitted a formal Application for Site Plan Approval on
December 14,2004. Id. Based upon the prior rezoning, as confIrmed by the City's
letter of April 7, 2004, and the ongoing meetings with the City, the Petitioner
believed, in good faith that it was entitled to approval of the Site Plan as submitted.
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While the Petitioner sought, in good faith, to obtain approval of its site plan,
the City engaged in a course of obstruction and delay regarding the site plan. This
conduct, detailed in the April 28, 2005 letter from the Petitioner's attorneys to the
Planning Director, A. 161-64, and further outlined in the June 7, 2004 Vested
Rights Submittal, A.. 148-50, consisted of the following. The 2004 Application for
Site Plan Approval for 526 units was based upon all the foregoing due diligence by
the Petitioner and, additionally, upon numerous pre-filing meetings with the City.
The proposal was to demolish two of the four existing structures, keep the
remaining two structures and add a modem, new building. A. 161. The Petitioner
obtained surveys and site plans and paid the City's filing fee. The City was fully
aware that some of the existing residential units in the two structures that were to
remain consisted of units of approximately 500 square feet in size. Article XII of
the City Zoning Code establishes the structures as legal, non-conforming uses. See
A, Item 4(c)(iv) P. 1-3. This is less than required by the present code for new
construction but was authorized as a valid, legal, non-conforming use. Id.
After it had received the site plan application and the filing fee, the City
advised, for the first time, that the Petitioner would be required to bring the two
remaining structures into compliance with the square footage requirement of the
Code for new buildings. A. 161. In the alternative, Petitioner could seek a
variance, however this would require meeting the almost impossible requirement
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of showing a legal "hardship" under the City Code. A. 161. Therefore, although
the Petitioner did not agree with the City's position regarding requirement to bring
the pre-existing structures into compliance, the Petitioner revised the Site Plan to
eliminate all four of the pre-existing buildings. Id. Nonetheless, this change of
City position resulted in a delay in the processing of the application for site plan
approval due to the required site plan revisions.
On February 16, 2005 the Petition submitted a revised Site Plan and
supplemental letter of intent for approval of a single structure meeting the City's
demands without the purported need for a hardship variance. A. 162. The revised
site plan was for an "as of right" building that could be approved administratively.
. without the necessity for a public hearing. The revised site plan was submitted
after many months of meeting with the City's staff and some two months after
filing the original Application for Site Plan Approval. Designed with a single
building and an attached parking garage, the proposal was in accordance with the
City Code and was similar to other projects that had been approved under the
Code. A. 162. Then, for the first time, the City advised that the site was subject to
"zoning in progress,,3 as it relates to parking garages, and that the parking garage
3 "Zoning in Progress" as set forth in Section 31-77(h) of the City Zoning Code
would allow the City to stop the processing of any applications that were
inconsistent with ordinance changes being considered by the City, even though
those proposed ordinances have not yet been adopted, but while those proposals
are in progress." Such "zoning in progress" is, in fact, a defacto moratorium.
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must be incorporated into the footprint of the building. Id. In response to the
purported zoning in progress issue, the Petitioner revised the site plan to provide
the parking garage under the residential units so that the entire garage was within
the building's residential core. Id.
In its March 7, 2005 development review meeting regarding the further
revised application, the City staff advised that they were not sure what the ultimate
parking structure ordinance would entail, and that essentially any building with a
parking structure was on hold, i.e. subject to a moratorium, until the City acted on
the parking garage issue. A. 162. Faced with the City's purported ignorance of its
process, Petitioner obtained a copy of the audio cassette tape of the commission
workshop which gave rise to the so-called zoning in progress and demonstrated to
staff that the discussion did not even pertain to garages in residential structures but
specifically applied only to the Office Park, Medical Office, and intensive
commercial districts. Id. Only after Petitioner demonstrated to the City what it
already knew did the City relent from the "Zoning in Progress" obstacle which it
had created. Id. See City Letter of April 14, 2005. A. 165. Nonetheless, the site
plan approval process was again delayed for one and one-half months in order for
the City to recede from its erroneous position on the applicability of the "zoning in
progress" process.
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The foregoing inapplicable zoning in progress obstacle was just one of a
series of obstacles and delays interposed by the City to delay and avoid the
approval of the site plan. In late January or early February the City raised yet
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another matter that had never been an issue over the proceeding months. The City
advised that a previously approved, off site, existing, entrance drive must be
brought up to code provisions enacted after approval of the drive. As discussed
supra, this drive was part of a larger series of private roads, driveways and access
ways which the County had approved for both the Lincoln Pointe property and
other nearby developments including the adjacent Biscayne Cove condominium in
the 1968 zoning resolution. A. 174. This grandfathered parcel was not owned by
the Petitioner, but by unrelated private third parties. A. 149. The City advised that
the private drive must be widened to 50 feet in accordance with provisions that
were enacted after the approval of the private drives, which provisions pertained,
not to private drives, but to public streets. T. 12. The City Code limits such
private drives to the 36 foot existing width of the drive in question. [T. 12-14].
Petitioner, through counsel, then wrote no less than three letters to the City
demonstrating that the roadway was permitted by the Code and other applicable
law. See letters of February 7, March 2 and March 16,2005 at A. 174-177,193,
194, and 198-199. The roadway servicing the property had been in existence for
decades having been approved some 37 years earlier in the 1968 resolution. The
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original zoning approval had approved this road to service 659 units on the subject
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property, whereas the present site plan, in accordance with the City's rezoning,
proposed only 526 units, a reduction of 133 units. Thus the access road had been
previously approved to service over 25% more units than were being proposed by
the current, repeatedly delayed, request for site plan approval. A. 198-199. The
approval for 659 units on the subject property had also approved residential
development on the adjacent Biscayne Cove property, which uses the same drive.
Id.
The Petitioner repeatedly requested a written opinion from the City with
regard to this unprecedented position, however the City failed to provide any
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written justification. On April 19, 2005, the Petitioner appealed the staff
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interpretation to the City Manager, who, continuing the pattern of delay, never
ruled or set the matter for consideration by the City Commission. A. 171-173.
On April 28, 2005, the Petitioner, through counsel, objected in writing to the
fact that delays were based, not upon the merits, but upon political pressure:
It is clear from the moratorium workshop held on April 21, 2005 that
the political atmosphere is driving the City's delay. Every effort by
our clients has been met by City actions to improperly stall the
approval of this application despite the application being complete
and ready for approval by the City.
A. 163. Absent any response on the part of the City to its letters and appeal to the
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City Manager, the Petitioner even asked the City to make improvement of the
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private drive a condition of approval, despite Petitioner's strong objection to the
requirement. Petitioner did this so that the matter might, at least, move forward
and be reviewed by higher authorities:
While we assert that improvement of the adjacent private property is
not a legitimate factor in our client's approval, if the City insists the
driveway must be improved to the City standards, we suggest that the
City incorporate this as a condition of approval so that we can seek
further review by the City Commission or the courts of this issue.
Id. at 163. Still, the City both failed to respond, effectively bringing to a halt the
process for approval of the petition of site plan or the appeal.
Another aspect of the City's obstacles and delays was the City's failure to
timely provide the comments of its traffic consultant and of the City Police
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conferring with the City for months and had submitted its formal application for
site plan approval on December 14, 2004, these routinely issued reports had not
been forthcoming as of the time of Petitioner's letter of April 28, 2005, long after
the City had issued its draft development review comments pertaining to the
revised site plan. A. 162-163. Normally this takes five to ten days. T. 12. The
Petitioner complained that this was part of the pattern of delay in processing and
approving the application so that a moratorium could be interposed:
The City's draft development review comments of March 7, 2005, also
noted that neither the City's [traffic] consultant nor the Police
Department have provided comments to date. Since that time, we
have made numerous requests for copies of the police and traffic
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review in order for our application to proceed. We have been advised
that these comments are not yet available. Again, one can only
assume that there is a preordained attempt to delay this application
until such time as a moratorium could be imposed. [A. 163]
It was not until mid-May of 2005, six months after submission of the site
plan application, that these reports, which were necessary to process the site plan,
were made available. A. 149. When finally issued, the reports had to concede that
the proposed development did not adversely impact traffic since it did not reduce
the level of service on the affected roadways. [d. In the interim, the City issued
yet another purported "Zoning in Progress," advising that it contemplated revisions
of regulations pertaining to "redevelopment," without any indication as to the
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nature of the changes or the nature of the "redevelopment" affected. A. 149, 163-
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164.
The Petitioner further complained to the City in writing that approval of the
site plan to which it was entitled, had been unduly and improperly stalled, not by
legitimate issues, but by the political atmosphere, so that the inordinate delays
resulted in a de facto moratorium as the result of a bad faith manufacturing of
issues which continued to occur:
The City is acting, and has been acting, in bad faith manufacturing
reasons to delay our project as if the moratorium had already been
adopted by the City of A ventura. In an attempt to circumvent the legal
requirements of an emergency moratorium, the City has now issued a
new "Zoning in Progress" notice as to all redevelopment projects.
This new "Zoning in Progress" edict is defective, as a matter ofIaw, in
that it creates a total uncertainty as to possible actions by the City
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Commission. No rational person can possibly make any informed
decisions as to redevelopment proposals and is placed in the same
position as if a full moratorium is in place. ... This will not pass
legal muster and should be rescinded. [A. 163-164]
In preparing the Application for site plan approval and the modifications to
the site plan required by the City, the Applicant necessarily expended substantial
financial resources and also incurred substantial financial losses. For example, in
addition to other expenditures, the Petitioner obtained surveys and site plans, hired
architects, engineers, surveyors, and other professionals, and paid the City's filing
fee. While awaiting site plan approval, the Petitioner expended approximately
$1,630,000.00 as of June 2005. A. 148. These expenditures have never been
IJ contested by the City. Moreover, in reliance upon the City's acts and
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representations Applicant had begun vacating (i.e., not renewing) viable leases in
anticipation of approval of the site plan and redevelopment of the Property. This,
in itself, caused the Petitioner to incur an approximate $868,000 in vacancy losses,
for a total cost of almost $2,500,000. A. 148. Again, these expenditures and losses
have never been contested by the City.
Adoption of Moratorium Ordinance
As shown supra, while the City was delaying approval of Petitioner's
application, it was planning to impose a moratorium upon development approvals.
In a memorandum of April 8, 2005, the City's attorney issued a memorandum
intended "to examine the feasibility of improving a moratorium and to discuss the
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applicable legal issues . . . ." A. 117. The memorandum recognized that the
contemplated moratorium ordinance must, as an "essential ingredient," include a
"vested rights provision," which incorporated the essential elements of "equitable
estoppel or vested rights." Id. at 125. One of the well documented elements
identified by the City Attorney was a property owner's good faith reliance "upon
some act or omission of the local government." Id. at 124. Although the City
subsequently adopted a moratorium ordinance, Ordinance No. 2005-07, Id. at 86,
and although the City purported to included the vested rights process
recommended by its Attorney in said Ordinance, the City failed to do so. Instead
of recognizing that vested rights or estoppel is predicated upon reliance upon
"some act or omission of the local government," the City imposed a much more
restrictive standard than the required standards enunciated by its own attorney and
provided for relief only where there was a "governmental act of development
approval," prior to the moratorium.4 A.90.
The Moratorium ordinance was adopted, and became effective, on June 7,
2005 and on the very next day, June 8, 2005, Petitioner hand delivered to the City
4 As discqssed infra, under the City's own codified definition, the City's rezoning
of the Property to RMF4, upon which the Petitioner relied, was a governmental
"act of development approval" satisfying even the overly restrictive requirement of
the City's "vested rights" provision. As further discussed infra, the City Attorney
failed to apprise the City of other case law to the effect that vested rights or
estoppel may be established upon a showing of improper delay in approving an
application so as to impose a moratorium, ie. bad faith delay.
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Manager its "vested rights" application. The application ~as based upon the
Petitioner's good faith reliance upon the fact that the City had rezoned the property
to the RMF4zoning designation, the continuing validity of which the City had
confirmed in its letter of April 7, 2004. After yet a further delay of more than two
months, the City Manager, on August 17, 2005, issued a determination that the
applicant had not established vested rights. A. 139-142. The Manager's decision
solely relied upon the restrictive criterion in the Moratorium Ordinance in finding
that the Petitioner had not shown reliance upon "a governmental act of
development approval." Id. at 139. Without explanation, the Manager focused
solely upon the April 7 letter and totally ignored the fact that it was the rezoning of
the Property to RMF4 that was the fundamental basis of the Petitioner's reliance,
without which there would have been nothing to rely upon. Moreover, the
Manager did not in any way dispute the allegations of bad faith contained the
Petitioner contained in the vested rights application.
As more fully discussed infra, the City Code defines "development
approval" to include the rezoning that applied the RMF4 category to the Property,
and upon which the Petitioner relied. The City's April 7, 2004 letter only
confirmed the on-going validity of the RMF4 designation. This letter, which
provided the basis for on-going, or good faith, reliance was conceded by the
manager to be "a routine confirmation" of the zoning. A. 140. On August 18,
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2005, the day after the Manager issued his decision, the Petitioner filed an appeal
to the City Commission, pursuant to the Moratorium Ordinance, asking to be
placed on the next available agenda. A. 138. The matter came before the City
Commission for public hearing on September 6, 2005, whereupon the City
Commission denied vested rights. A. 1-2.
"Vested Ril!:hts" Hearinl! before the City Commission
At the outset of the "vested rights" hearing the petitioner filed a letter of
protest contesting the City's jurisdiction to adjudicate vested rights, reserving all
objections and claims and reserving all objections and claims and reserving the
right to seek any and all judicial relief and remedies. A. 3-4, T. 6-7.
The Petitioner was represented by two attorneys, Mr. Price and Mr.
Schulman. Both attorneys addressed the only relevant and pending issue before
the commission, i.e., vested rights. Mr. Price provided a detailed account of the
Petitioner's reliance upon the City's rezoning of the property to RMF4, the issuance
of the City's letter confirming what the zoning permitted, and the City's inordinate
delays and raising of new, unprecedented, issues throughout the site plan approval
process which stymied the process in order for the City to preempt approval of the
site plan by the enactment of the zoning moratorium in question. T5-19. None of
the factual allegations and evidence presented by Mr. Price were contradicted or
contested by the City.
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Mr. Schulman went into the specifics of detrimental reliance in terms of
monetary expenditures, and the pending sale of the Property by Petitioner, which
sale was jeopardized, first, by the inordinate delays and then, by the moratorium.
T19-29. Mr. Schulman presented an owner affidavit and fmancial analysis. These
showed that the Petitioner purchased the Property in August of 2004, A. 210, for a
price of $47,000,000, of which $40,000,000 was financed by a mortgage on the
Property. T21. Mr. Schulman presented evidence that the Petitioner, relying upon
the prior rezoning to RMF4 and various discussions with and representations by
the City, terminated approximately 50% of the leases in anticipation of the
forthcoming approval of the site plan and redevelopment of the Property for a loss
of $1,200,000 through July of 2005. Further, Mr. Schulman showed, through
sworn affidavits that, in April of 2005, two months before the adoption of the
moratorium, the Petitioner had contracted to sell the Property for $85,200,000,
based upon the 526 unit redevelopment permitted by the RMF4 zoning, as
confirmed by the City. T22. Mr. Schulman referenced the fact that the City's
conduct jeopardized the pending sale, created the potential for a mortgage
foreclosure, and could result in litigation with the City. T25.
Unlike the Petitioner's presentation, which was directed to the only relevant
issue that was before the Commission, i.e. whether the Petitioner had vested rights,
the remainder of the hearing did not pertain to that issue. Instead, the tone and
.
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substance from that point on was set at the outset of the objectors' presentation by
an individual whose emotional presentation concluded with the following threat:
I am going to tell you if this Council passes the resolution and lets you
build your 40 story tower they know where we are going to speak and
that will be at the ballot box and you [the Commission] will be out of
a job coming next election, okay. (Applause)
T33. Other testimony by the speaker pertained to traffic, which simply was not the
issue in the vested rights hearing. See e.g. T.31.
The next speaker was Attorney Keith Marshal, General Counsel for the
adjacent Biscayne Cove Condominium Association. His presentation began with
the admission that he was not addressing the legal issue: "We are here tonight not
to make a legal argument. ..." Instead, Mr. Marshal led his client through a
series of prejudicial, admittedly leading questions about demographics, traffic and
flooding, none of which was in issue. T34-35. Again, the irrelevant, emotional
testimony was followed by applause. T36. Instead of trying to establish decorum
and focus upon the issue of vested rights, the Mayor followed the applause with the
statement: "Thank you very much Mr. Marshall." T.36.
At that point, Petitioner's attorney, Mr. Price objected:
Standing objection. Once again, we are here tonight on an appeal
of. . . vested rights, not whether this is a good project, whether the
people like it or not. Any of that testimony is irrelevant to the issue
before you tonight. That's a standing objection. [T3 7.]
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When the City Attorney then tried to remind the Commission that the issue was
vested rights, the Mayor interjected: "but nothing says that we cannot as a
Commission listen to the people". Instead of cautioning the Commission about
due process, irrelevance, and prejudicial hyperbole, the attorney encouraged more
of the same by responding: "Not at all. Please proceed." T.37.
Furthering the objectors' highly emotional presentation, another speaker cast
the issue as one of the Petitioner's greed, referring to "the need for profit or greed
or whatever label you give it on the part of the developer [versus] citizens who
continue to pay their taxes, "T.39. The speaker concluded: "So the decision
before you this [evening] is one between a price tag and the value of human life,
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which is priceless. Thank you. (Applause.)" TAO.
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Typical of the mood was the presentation of an attorney and real estate
broker from Manhattan, who, like the attorney for Biscayne Cove, did not address
the legal issues:
I have been before many City planning meetings and I have never
seen such afreefor aU like we are experiencing in this City. What is
going on right now with regards to development is what could only be
called a frenzy of development. Every little square inch of land that
someone could possibly get their hands on is being grabbed up for
development. . .
T. 40. This attorney then joined the numerous other emotional presentations based
upon Hurricane Katrina, which was acutely fresh in everyone's mind:
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As we heard this evening, we heard a great deal of talk about
Katrina, which basically wiped out an entire community. [T]he fact
that the City officials knew that the levies that were built in New
Orleans were built too low and they were heading for a national
catastrophe. "
T41-42. Again, the testimony was followed by applause. Instead of admonishing
the emotional outburst and directing the speakers to address the issue of vested
rights, the Mayor continued to encourage more of the same by following the
applause with: "Thank you very much." T42.
Additional emotional, unqualified expert testimony came from Mr. Castaldo
from the neighboring Biscayne Cove Community:
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"Once they build that 40 story building in front of the Clipper and the
Tower, they will put those two buildings behind shadow complete[ly]
every day. The sun won't go through. You will create mold growing
on the building. Mold kills people. . . . "
. . . They made a killing. One killing is enough. Don't make another
killing and kill the people over here. (Applause.)
T47. Once again, the applause was followed by the Mayor's "Thank you," and her
continuing failure to establish decorum or focus the hearing upon the issue of
vested rights. T47.
On rebuttal, Mr. Price, for the Petitioner, recognized the near impossibility
of getting a fair hearing in this highly emotional, political environmental: "[T]hese
issues are not easy to argue in front of a community - - elected [commission] where
the community feels very strongly about an issue." T49. Mr. Price tried to bring
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the hearing back to the issue of vested rights by pointing out that the application in
question, for site plan approval, was "filed with the, City well in advance of your
moratorium ordinance was totally consistent with your comprehensive plan. We
were not seeking any rezoning. We were consistent with your zoning codes, your
land development regulations." T49. Mr. Price pointed out that the density
proposed by the Petitioner, and consistent with the zoning, is less than that
presently in existence at the neighboring Biscayne Cove Condominium which
objected so strongly to Petitioner's desire to place lower density on the subject
property. T48.
With regard to the comments about public safety, etc., Mr. Price reminded
the Commission of the following:
And finally, if we go back to the first hearing on the moratorium
ordinance, the City Manager felt compelled to respond to concerns
raised by the community as to emergency evacuation and whether the
existing roadway system serves the public in that area.
I asked for that to be made part of the record. I am repeating that
request. Your police chief indicated that he can properly serve that
community now and (protect) it with the density that is being
projected." [T.50.]
When the presentations were concluded the lack of decorum continued into
the commission's consideration of a motion, not on the merits, but "to remand this
item back to the City Administration in order to negotiate. . .." T.55. Although
claiming not to be affected by the hostility, Commissioner Weinberg
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acknowledged the hyperbole and political threats that the Mayor had allowed to
permeate the proceedings:
"I am [not] intimidated by retaliation, election day In 2008 for
myself." [T.56]
Although speaking favorably on the motion to negotiate. this Commissioner
reversed her position and voted against that very motion, T78-79, after the
additional, intimidating proceedings discussed infra.
The Mayor addressed, not the issue of vested rights, but Hurricane Katrina
and the political threats. She effectively declared that the people had already
spoken on the matter through an election:
I am sure that the people who will rebuild New Orleans will not
rebuild the levees the same way they built it.
. .. We are representing the people of this City, and frankly what
happened during that time is that there was an election. I think the
election spoke loud and clear about the direction of the City of
Aventura.
T64-65. The Mayor went on to conclude: "[W]e will do what has to be done and
the court will decide and we will see from there what the next step is." T65-66.
The Mayor's irrelevant and inflammatory comments were repeatedly interrupted,
and followed by applause. T64, 65 and 67.
Comments by Commissioner Auerbach against the Petitioner were, in turn,
followed by applause T73, whereupon the Mayor announced that the Site Plan,
which proposes less density than on the neighboring property is "totally
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incompatible with the rest of Aventura," a non-issue in a vested rights hearing.
T73. Following yet additional applause, the Mayor called the question before
affording Commissioner Holzberg, who had seconded the motion to negotiate, an
opportunity to speak. T73-74. Commissioner Holzberg, who had been on the
commission for ten years, pointed out that he had respectfully listened to the
objectors over the course of the two hour hearing. Id. Acknowledging the crowd's
demonstrated hostility to his having seconded the motion to negotiate, he began by
stating: "I don't want to be insulted by you people because I want to make a
statement." T74.
Because the disorder was now threatening the Commission's deliberations,
the Mayor belatedly tried to calm the crowd: "Ladies and gentlemen, please." Id.
Commissioner Holzberg went on to point out the City was so small, that virtually
the whole city was everyone's backyard, that the present objectors had not
previously appeared at zoning hearings, and that the real issue was a legal issue,
not a "NIMBY" ("Not In My Backyard") issue. See T75-77. The transcript
indicates just how out of control the crowd had become, when it sought to shout
down a commissioner who dared to disagree with it:
UNIDENTIFIED VOICE:
How dare you -
MAYOR GOTTLIEB: Ladies and gentlemen, please.
COMMISSIONER HOLZBERG:
give me the right to speak?
Why don't you
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MAYOR GOTTLIEB: They will give you the right to
speak or they will be asked to leave. There is a certain
respect on this commission table and this gentleman is a
Commissioner and he has the right to speak and then we
will vote. It is unnecessary to come up and back with
this conversation. [T7 4-7 5].
Mr. Holzberg then went on to address the legal issues. T75-77. The Commission
voted to deny the motion to negotiate, T78-79, and then voted to deny the appeal
T79-80.
Noticeably absent during the course of the entire hearing was any testimony
of the City Manager or staff contradicting any of the factual allegations or proof
supplied by the Petitioner or the position taken and evidence presented by the
Petitioner. In fact, there was no evidence given by the City, and the City Attorney
specifically indicated that "[o]nce the City Manager has done, that is, has received
my legal advice and has issued his order as has been done, it is not appropriate for
the Manager to comment further on that nor for myself as to the direct merits of
that." T66. In its written decision, the Commission gave no explanation
whatsoever for its bare conclusion that the applicant "had not established vested
rights under the Moratorium Ordinance." TI-2.
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ARGUMENT
Standard of Review and Nature of Relief Sought
As discussed supra, Omnipoint reconfirmed that certiorari review was "a
matter of right." Miami-Dade County v. Omnipoint Holdings, 853 So.2d 195, 198
(Fla. 2003) citing Florida Power and Light Company v. City of Dania, 761 So.2d
1089, 1092 (Fla. 2000). Omnipoint also reconfirmed the standard of review in the
present first-tier of certiorari review as follows:
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As we delineated in City of Deerfield Beach v. Vaillant, 419 So.2d
624 (Fla. 1982), and reiterated in G.B. V. [Broward County v. G.B. V.
International Limited, 787 So.2d 838 (Fla. 2001)], the circuit court's
"first-tier" review is three-pronged. The circuit court must determine
"(1) whether procedural due process is accorded, (2) whether the
essential requirements of the law have been observed, and (3) whether
the administrative findings and judgment are supported by competent
substantial evidence." G.B. v., 787 So.2d at 843 (quoting Vaillant,
419 So.2d at 626).
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The Supreme Court in Haines City Cmty. Dev. v. Heggs, 658 S.2d 523, 530 (Fla.
1995) explained that the test of whether lower court "depart[ed] from the essential
requirements oflaw,"includes whether the lower court "'applied the correct law.'"
As shown infra, this Petition meets not one, but all, of the foregoing grounds for
certiorari relief.
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I. THE CITY FAILED TO APPLY THE CORRECT LAW OF VESTED
RIGHTSIESTOPPEL AND THE PETITIONER WAS AND IS
ENTITLED TO AN AFFIRMATIVE DETERMINATION OF SUCH
RIGHTS.
(A) City's Failure to Apply Correct Legal Standards
In adopting a purported "vested rights" procedure regarding improper
application of the moratorium, the City failed to incorporate the essential
requirements of law as instructed by its own attorney and as otherwise established
by the applicable case law,S As the City attorney recognized in his April 8, 2000
memorandum, there were two "Essential Ingredients of Moratorium Ordinance,"
necessary to prevent unlawful application of the ordinance contrary to vested
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rights/estoppel principles and that should have been incorporated in the ordinance
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to avoid judicial of invalidation of the entire moratorium:
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As discussed supra, the Petitioner participated in the City's vested rights
process by special appearance, taking the position, and reserving all rights to
contend, that decision as to whether a property owner has vested rights is a judicial
decision for which a property owner has the right of access to the courts to bring a
de novo action. In a de novo action the property owner would be entitled to prevail
on factual issues based upon the greater weight of the evidence. The owner would
not be subject to losing a vested right simply because there is "some" contrary
evidence, as is the standard on certiorari review, which is highly deferential to the
decision of a City Commission. This deference may be appropriate where the City
applies its own code and makes decisions such as zoning decisions which, to a
large extent, are policy decisions. This is the case in quasi judicial hearings as
opposed to court, or judicial proceedings, The existence or non-existence of
vested property rights protected by the state and federal constitution, however,
carmot be made the subject of a quasi-judicial proceeding subject only to certiorari
review. Petitioner continues to reserve its right to assert any and all claims in de
novo litigation. See Motion for Stay at A. 433-34.
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Any moratorium ordinance should contain two provisions which are
essential to assuring that the ordinance does not operate in an
unlawful manner. Those two provisions are:
1. a vested rights provision; and
2. a waiver provision.
The purpose of a vested rights provision is to make sure that a
proposed moratorium does not unlawfully cut off or impair vested
rights or rights protected by equitable estoppel. The destruction of
vested rights may subject the municipality to monetary liability under
Florida law as well as under federal law.
* * *
Each of the three prior moratoria ordinances of the City had
both a vested rights provision and a waiver provision. Inclusion of
such provisions helps to avoid the judicial invalidation of the
moratorium.
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The City Attorney also recognized the applicable substantive law as to the
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essential elements of vested rights/equitable estoppel:
[T]he Courts have long recognized an exception to the strict
application of changed laws, under the doctrine of equitable estoppel
or vested rights. The doctrine of vested rights operates to limit a local
government's exercise of its zoning powers and immunizes a
development from subsequently enacted zoning laws, when applicable.
In order for this legal doctrine to apply and for vested rights to be
established, a property owner must demonstrate that:
a. relying in good faith;
b. upon some act or omission of the local
government;
c. the property owner has made such a substantial
change in position or incurred such extensive obligations
and expenses that it would be highly inequitable and
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manifestly unjust to permit the government to destroy the
rights of the property owner by applying a subsequent
regulation.
See, Town of Largo v. Imperial Homes Corporation, 309 So.2d 571
(Fla. 2d DCA 1975); Monroe COlfnty v. Ambrose, 866 So.2d 707 (Fla.
3d DCA 2004). When equitable estoppel applies, rights are treated as
vested and protected. City Code Section 31-3(b)(2) is specifically
founded upon this equitable estoppel - vested rights concept.
The foregoing elements of vested rights/estoppel accurately depict one
aspect of the applicable law on this point, as reflected in the cases as cited by the
City Attorney. See also, Hollywood Beach Hotel Company v. The City of
Hollywood, 329 So.2d 10, 15 (Fla. 1976). Both the City Attorney's memorandum
and the cited cases all apply vested rights/estoppel based upon "some act or
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omission of the government," See, e.g. Hollywood Beach, supra at 15, and Imperial
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Homes, 309 So.2d 571 at 572. The City, however, failed to incorporate that
essential element into the so-called vested rights provision of its ordinance.
Instead of allowing vested rights/estoppel based upon "some act or omission," the
ordinance limits such a showing to an affirmative, governmental "act of
development approval." A. 90. Further, neither the City Attorney nor the City's
ordinance recognizes another fundamental aspect of the law of vested
rights/estoppel, bad faith delay or unfair dealing by government. Under bad faith
delay and unfair dealing principles, a local government will be estopped to apply a
newly enacted provision such as a moratorium to a property owner where issuance
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of an approval was inordinately delayed, or delayed for purposes of allowing a
change in law or moratorium to take place. See, e.g. Dade County v. Jason, 278
So.2d 311 (Fla. 3d DCA 1973) (a mere half hour delay from 11:30 a.m. to 12:00
noon was sufficient to permit application of a moratorium) and Hollywood Beach
supra ("'unfair dealing'" by a municipality can also serve as the basis for the
invokement of equitable estoppel."" Id. at 18.
Thus, instead of following its own attorney's advise that, in order for a
property owner to establish vested rights estoppel, the owner need only show good
faith reliance "upon some act or omission of the local government," the City
imposed a far more rigid and restrictive standard of a "governmental act of
development approval" prior to the effective date of the ordinance. Moreover, the
City totally failed to incorporate bad faith delay and unfair dealing as separate and
independent grounds for vested rights/estoppel against the moratorium.6
6 The moratorium ordinance also includes a list of specific exceptions which
include "any development for which a building permit or any required site plan has
been issued prior to the imposition of this moratorium. Sec. 2B3, A. 89. By
providing express exceptions for the foregoing situations which also clearly qualify
as having a "governmental act of development approval," the Commission
rendered its vested rights process, based upon the same criteria, largely ineffectual.
Indeed, the Commission viewed the vested rights process as meaningless, taking
the view that the only exceptions from the moratorium were those expressly set
forth therein:
COMMISSIONER DIAMOND: In my opinion our attorney has give
an opinion in connection with this matter that the moratorium should
apply to this property without question. Accordingly - (applause)
[T63] . . .
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(B) Petitioner Established Vested Rights/Estoppel Even Under The City's
Unduly Restrictive Standard.
Petitioner established its entitlement to vested rights/estoppel even under the
overly restrictive requirement in the moratorium ordinance of showing a
"governmental act of development approval" prior to the effective date of the
moratorium ordinance. The fundamental, underlying basis for the Petitioner's
claim of vested rights/estoppel is the Petitioner's reliance upon the City's zoning or
rezoning of the Property, which resulted in the RMF4 zoning. Under the City's
Code, the term "Development Approval, Development Order or Development
Permit," are jointly defined in the broadest terms to include:
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"any... subdivision approval, change of land use district boundary
[(i.e. zoning or rezoning action)], plan amendment, or any other
official action ... issued by any official, commission, or board of the
City having the effect of permitting development. See also F.S.
~163.3164."
City Code Section 31-21. "Definitions." A. 103.
Thus" any... change of land use district boundary," i.e. zoning or rezoning,
is, by definition a governmental act of "development approval." Although the
foregoing language is unequivocal, it is underscored by the fact that the City's
definition equates "development approval," to "development order" and
MAYOR GOTTLIEB:
Diamond was absolutely
[exceptions] [T63]
This particular building, Commissioner
correct, was not part of this moratorium
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"development permit," and expressly incorporates Florida Statute 164.3164. That
statute defines the equivalent term "development order" as including any
"development permit," which, in turn, is defined as "includ[ing] any ... subdivision
approval, rezoning, ... or any other official action of local government having the
effect of permitting the development of land," i.e. any zoning or rezoning action.
The language in municipal ordinances, as in statutes, is to be given its "plain
and obvious meaning," "should be given [its] broadest meaning," and should be
interpreted infavor of the property owner." Rinker Materials Corporation v. City
of North Miami, 286 So.2d 552,553 (Fla. 1973). Thus, under both the City's code
and Florida Statutes incorporated therein, the zoning or rezoning of the Petitioner's
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property from the County's RU-4A district to the City's RMF4 zoning district, A.
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94-98, 147, was unequivocally a "governmental act of development approval"
issued prior to the effective date of the moratorium ordinance. The Petitioner
relied in good faith to its detriment upon said approval such that it would be highly
inequitable to apply the moratorium. It is beyond dispute that Petitioner's good
faith reliance was based upon governmental act of "development approval," that
occurred prior to June 7, 2005.
(C) Petitioner's Right to Vested Rights/Estoppel is Even More Compelling
When the Correct Law is Applied.
(1) Good Faith Reliance Upon "Some Act or Omission" ofGovemment
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As discussed supra, the City not only failed to apply its own codified
definition of "Development Approval," but, more fundamentally, failed to apply
the correct law of vested rights/estoppel, which requires that good faith reliance be
based only upon "some act or omission of the local government." The Circuit
Court is required to apply the correct law, See, e.g., Heggs, supra. In determining
the issue of vested rights/estoppel, this Court is required to apply the correct law
and cannot be limited the skewed provisions of the City Code.7
As recognized both in the City Attorney's Memorandum and in the
applicable case law, vested rights/estoppel may be established based upon good
faith reliance upon "some act or omission of local government" where it would be
highly inequitable to destroy the rights of the Property Owner. Memo at Al24
citing Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA
1975) and Monroe County v. Ambrose, 866 So.2d 707 (Fla. 3rd DCA 2004). As
discussed supra, the fundamental basis for the Petitioner's good faith reliance was
the City's rezoning of the Property to RMF4. Although the Petitioner could have
relied simply upon the rezoning in expending large sums money to purchase the
property and prepare for redevelopment, the Petitioner nevertheless exercised
7 Again, this argument is made in an abundance of caution and the Petitioner
reserves it right to have the issue of vested rights/estoppel determined in de novo
litigation.
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considerable due diligence. This included asking the City to confirm, in writing
that the Property could be redeveloped pursuant to the RMF4 zoning.
Inviting the Petition onto the welcome mat that was later to be yanked out,
the City, in its April 7, 2004 letter confirmed that the RMF4 zoning district
allowed a maximum of 60 dwelling units per acre and that based upon the lot area
of 8.769 acres "a maximum of 526 units may be permitted."s This inquiry, as part
of Petitioner's due diligence, carmot leave any doubt as to the Petitioner's good
faith reliance. Indeed, the City Manager, himself, recognized that the April 7,
2004 letter was not at odds with the City's regulations but, to the contrary, was
"simply a routine confirmation of the then-existing zoning." A. 140. Nothing in
this "routine confirmation" of the effect of the rezoning even remotely suggested to
the Petitioner that it could not rely upon that action as a basis for purchasing and
redeveloping the property in accordance with the City's then-existing regulations.
S The City's letter provided confirmation:
Redevelopment of the Lincoln Point property would be subject to the
City's Land Development Regulations. The property is located in the
RMF4 zoning district which allows a maximum of 60 dwellings per
acre. Based on the lot area of8.769 acres in the Miami-Dade Property
Appraiser's records, a maximum of 526 units may be permitted. This
number of units is subject to confirmation of the lot area by survey
and opinion of title and is further subject to all site development
criteria of the RMF4 zoning district and other applicable sections of
the City's Land Development Regulations.
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While the underlying rezoning to RMF4, and not the letter, was the primary
basis for the Petitioner's reliance, the letter provided two additional grounds for
reliance. First it was an affirmative act, or confirmation of the zoning, and, second,
it was an omission, or failure to wam the Petitioner that its applications for site
plan and other approvals would not be processed in good faith. Based upon the
underlying rezoning to RMF4, the City's confirmation thereof, and the City's
omission of any advice that Petitioner could not rely thereon, the Petitioner
purchased the Property for $47,000,000, expended an additional approximate $1.2
million while preparing for redevelopment, and lost the additional sum of $868,00
in non-renewed leases, for a total expenditure and loss of approximately
$49,000,000.
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The City's admitted "confirmation," or "implied invitation" to go forward
with the project, was a classic basis for estoppel/vested rights:
"Stripped of the legal jargon which lawyers and judges have
obfuscated it with, the theory of estoppel amounts to nothing more
than an application of the rules of fair play. One party will not be
permitted to invite another onto a welcome mat and then be permitted
to snatch the mat away to the detriment of the party induced or
permitted to stand thereon. A citizen is entitled to rely on the
assurances and commitments of a zoning authority and if he does, the
zoning authority is bound by its representations, whether they be in
form of words or deeds. . ."
Town of Largo v. Imperial Homes Corporation, 309 So.2d 571, 573 (Fla. 2d DCA
1975).
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(2) Vested Rights/Estoppel Based Upon Bad Faith Delays or
Unfair Dealing by Government.
Petitioner's entitlement to vested rights/estoppel is also independently
established by the months of bad faith delays and unfair dealing in which the City
engaged so that it could impose a moratorium before the Petitioner could obtain
site plan approval. All the while, Petitioner, in good faith, continued spending or
losing millions of dollars to obtain the site plan approval to which it was legally
entitled, until, finally, the City accomplished its objective of delaying approval
long enough to impose the moratorium. Thus, without knowing it, the Petitioner
had been placed on a monetary treadmill spending more and more money to
progress, while, unknowingly, being kept in the same place-limbo. Making an
unconscionable situation even worse, the Petitioner was then required by the
moratorium ordinance to expend yet additional resources to obtain a purported
"vested rights" approval through a procedure that purported to afford all of the due
process protections of a quasi-judicial process, while affording none. See
Discussion infra at Section III.
In Dade County v. Jason, 278 So.2d 311 (Fla. 3d DCA 1973), the property
owner was delayed a mere half hour in the issuance of a permit, from 11 :30 a.m.
until 12:00 noon, whereupon a moratorium took effect. The court found that the
county was estopped to deny the permit based upon a bad faith delay, citing an
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extensive body of case law establishing the applicability of estoppel under these
circumstances:
We affirm the action of the chancellor in directing the issuance of the
permit. He found that the County had 'delayed' the issuance of the
permit in an obvious attempt to permit the County Manager to issue a
moratorium. It is apparent that the landowners had completed all the
necessary prerequisites entitling them to a permit as of 11 :30 A.M. on
the date in question, and the County should be estopped, under the
circumstances, to deny the issuance of the permit. Aiken v. E.B.
Davis, Inc., 106 Fla. 675, 143 So. 658; Harris v. State ex reI. Wester,
159 Fla. 195, 31 So.2d 264; Texas Co. v. Town of Miami Springs,
Fla. 1950,44 So.2d 808; Bregar v. Britton, Fla. 1954, 75 So.2d 753;
City of Hollywood v. Petterson, Fla. App. 1965, 178 So.2d 919;
Hough v. Amato, Fla.App. 1968,212 So.2d 662; City of Miami Beach
v. Jonathon Corporation, Fla.App. 1970, 238 So.2d 516; Murms v.
Stenman, 152 Cal.App.2d 543, 314 P.2d 67; Dubow v. Ross, 175
Misc. 219, 22 N.Y.S.2d 8; Vine v. Zabriskie, 122 N.J.L. 4, 3 A.2d
886; Sgromolo v. City of Asbury Park, 134 NJ.L. 195,46 A.2d 661;
Gibson v. City of Oberlin, 171 Ohio St. 1, 167 N.E. 2d 651; Plarming
Commission of City of Falls Church v. Berman, 211 Va. 774, 180
S.E. 2d 670. We find the case of the City of Boynton Beach v.
Carroll, supra, not to be applicable in the instant case, because of the
obvious conclusion by the chancellor that the County had acted in
Bad faith in delaying the issuance of the permit and therefore, the
applicant should have been entitled to a permit authorizing the
construction of the number of units that they would have been
permitted to construct if the permit had been issued when they were
entitled to it, to wit: 11 :30 A.M., March 29, 1972.
The circumstances in the present case are far more egregious, and
compelling for the recognition of vested rights/estoppel than those in Jason. P.
Here, instead of a half hour delay, the Petitioner was delayed for months. In Jason,
there was no expenditure of funds during the delay, whereas in the present case,
loss of expenditure amounted to millions of dollars. Clearly, the Petitioner is
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entitled to a recognition of vested rights/estoppel and this Court should quash the
City's denial thereof.
ll. THERE WAS NO SUBSTANTIAL COMPETENT EVIDENCE TO
SUPPORT THE COMMISSION'S DENIAL OF VESTED
RIGHTS/ESTOPPEL
The Manager's denial of vest rights was predicated upon his view that the
City's letter of April 7, 2004 did not constitute a development approval because it
was "simply a routine confirmation of the. . . zoning." A. 140. The Manager
utterly failed to recognize that it was the City's underlying zoning or rezoning of
the Property to RMF4 upon which the Petitioner necessarily relied and that said
actions of the City clearly came within the City's own definition of "development
approval." The Manager's opinion was therefore legally immaterial.
The opponents did not even purport to address the issues and variously
admitted that they were proceeding "not by the rule book, not from the code book."
T. 31. Even attorneys, who are required to adhere to a higher standard, joined in
the fray, with comments such as: "I have been before many city plarming meetings
and I have never seen such afreefor aU like we are experiencing in this city," T.
40. The General Counsel for the neighboring Biscayne Cove condominium
candidly admitted that he was "here tonight not to make a legal argument," as a
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preface to his presentation that was utterly devoid of any relevance to vested
rights.9 T. 33
The meaning of substantial competent evidence in the zoning review context
was recently set forth in the following succinct statement of the Florida Third
District Court of Appeal:
In this context, competent evidence is evidence sufficiently relevant
and material to the ultimate determination "that a reasonable mind
would accept it as adequate to support the conclusion reached."
DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). Substantial
evidence is evidence that provides a factual basis from which afact at
issue may reasonably be inferred. Id. Blumenthal, 675 So.2d at 608;
see also Pollard v. Palm Beach County, 560 So.2d 1358, 1359-60
(Fla. 4th DCA 1990) ("evidence relied upon to sustain the ultimate
finding should be sufficiently relevant and material that a reasonable
mind would accept it as adequate to support the conclusion reached.
To this extent the 'substantial' evidence should also be 'competent."')
City of Miami Gardens v. Miami Dade Charter Foundation, Inc., 857 So.2d 202,
204 (Fla. 3d DCA 2003). See also Jesus Fellowship, Inc. v. Miami-Dade County,
752 So.2d 708 (Fla. 3d DCA 2000) ("reversing" the Circuit Court's failure to quash
decision of zoning authority because evidence "does not bear on the [issue], thus is
9 Even, assuming arguendo, that there had been expert testimony as to public safety
issues or that there was sufficient factual testimony as to these items, these are
legally immaterial to the issue of vested rights. These concerns can be addressed
in a multitude of ways that do not involve deprivation of vested rights, including
the strengthening of the City's public safety resources and drainage capability, as
well as City road improvements. In the extraordinary circumstance where City is
otherwise incapable of assuring public safety, the City always has the option to
purchase or condemn development rights. The effective taking of such rights,
without due process and just compensation, as the City seeks to accomplish in the
present matter, is prohibited under the doctrine of vested rights/estoppel.
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not relevant." Id. at 710). Because none of the opposition testimony pertained to
"the ultimate fmding ... the conclusion reached," as to vested rights/estoppel, it
does not bear on the issue, is irrelevant, and is therefore not substantial competent
evidence. Moreover, the .City staff and City Manager presented not one scintilla of
evidence at the hearing.
III. THE CITY COMMISSION CONDUCTED AN ILLEGAL
PLEBISCITE AND DENIED PROCEDURAL DUE PROCESS TO
THE PETITIONER.
It is clear from the record that the City Commission did not afford a fair due
process hearing on the issue of vested rights/estoppel. Instead, the City did nothing
more than conduct a plebiscite, deferring to the will of the people, or in this case,
the will of the crowd, or mob, assembled at the "hearing." As is evident from the
statement of facts, supra, once the Petitioner completed its presentation focusing
upon the issues of vested rights/estoppel, the proceedings deteriorated into what
was anything but a due process hearing on the merits. Following Petitioner's
presentation, the proceedings were replete with threats to the Commission,
hysteria, and highly prejudicial, inflammatory rhetoric. From beginning to end it
was, not only a plebiscite, but a series of highly emotional, politically charged,
prejudicial outbursts that were far more egregious than the ex parte communication
that, in itself, was held by Jennings to be "anathema to the quasi-judicial
proceedings." 589 So.2d 1337 at 1341.
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The opposition portion of the "hearing" began with a political threat and
ended with the Commission succumbing to that threat. Thus, the following
warning was issued to the Commission at the outset:
I'm going to tell you if this Council passes the resolution and lets you
build your 40 story tower they know where we are going to speak and
that will be at the ballot box and you [the CommissionJwill all be
out of a job coming next election, okay (Applause).
T.33 At the conclusion of the hearing, the Commission succumbed to the threat
with the Mayor (hereinafter "presiCling judge") not only acknowledging that the
Commission had heard it but that the Commission had heard it "loud and clear,"
and that it was controlling:
"We are representing the people of this City, and frankly what
happened during that time [that Petitioner was seeking site plan
approval] is that there was an election. I think the election spoke loud
and clear about the direction of the City of Aventura ... we will
represent this City in an extraordinary fashion and we will do what
has to be done and the court will decide and we will see from there
what the next step is."
T.65-66
The City Commission thus applied the rule of a plebiscite or mob rule, and, even
the Mayor recognized, it is now for "the court [to] decide," applying law, not
politics and hysteria.
The Petitioner recogmzes that revlewmg the remarks of an individual
commissioner is generally inappropriate as to the particular issue of "whether or
not there was substantial competent evidence to support Commission's resolution."
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Metropolitan Dade County v. Blumenthal, 675 So.2d 598,605 (Fla. 3d DCA 1996)
(rehearing en banc adopting former dissent). In Blumenthal, however, the Circuit
Court had relied upon an individual Commissioner's comment to the effect that the
basis for the decision was "'an emerging trend in the area.'" Id. at 604. The lower
court then improperly found that there was no substantial competent evidence to
support such an "emerging trend," and the resolution itself, "made no finding that
there was a 'trend' emerging in the area." Id.
In the present Petition, the comments of the Commissioners are considered
with regard to an entirely different issue than in Blumental, the conduct of a
plebiscite and the denial of procedural due process. The comments and demeanor
of the "judges," i.e. Commissioners, in the quasi-judicial proceeding are therefore
highly relevant. Because some of the most egregious demeanor and comments
came from the presiding judge, they are all the more germane in showing the
conduct of an illegal plebiscite and the denial of procedural due process. If the
reviewing court cannot review the demeanor of the judges of the lower tribunal, in
determining whether that tribunal afforded due process, then the reviewing tribunal
cannot fulfill an essential aspect of the review to which Petitioner is entitled as a
matter of right. City of Deer field Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982)
("Where a party is entitled as a matter of right to seek review in the Circuit Court
from an administrative action, the Circuit Court must determine whether
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procedural due process is accorded ....[and] whether the essential requirements of
the law have been observed. . . ."
There was no substantial competent evidence whatsoever pertaining to the
issue of vested rights/estoppel to support the Commission's denial of those rights
on any ground, whether or not reflected in the Commission's resolution. Nor was
there any pretense by either the Commission or the opposition to educe such
evidence. The opposition's comments were simply not directed to that issue. What
is established, however, by the conduct and statements of the public and the
conduct and statements of the judges, is that the Petitioner was not afforded
procedural due process and that it was subjected, at best, to a plebiscite and, at
worse, to mob rule. The presiding judge possessed the power and unique
opportunity to determine whether due process was or was not accorded and to
direct the public and the Commission to address and rule upon, respectively, the
only relevant issue before the Commission. This judge not only failed to curb the
emotionally charged presentation but also allowed it to degenerate into something
akin to a political rally, if not a mob, complete with the threat of voting the
Commissioners out of office, and the following acknowledgment of the presiding
judge:
We are representing the people of this City, and frankly what
happened at that time is there was an election. I think the election
spoke loud and clear...." T65-66
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As presiding judge the Mayor's influence over the proceedings was vastly
greater than that of any other commissioner. The mere fact that the presiding judge
allowed the proceedings to degenerate into a series of irrelevant, inflammatory
outbursts and hyperbole, repeatedly followed by uncurbed applause, negated the
due process hearing to which the Petitioner was entitled. Dry, black and white
transcripts can hardly convey the true "real time" atmosphere of a hearing.
Normally sophisticated public officials are circumspect in their comments,
especially when speaking on a record that they know will be reviewed by the
Court. IN this case, however, the presiding judge had so lost touch with proper
decorum that she conceded that the matter had already been predetermined by the
prior election. This is an extraordinary admission. If the record in this case does
not establish that the line between granting and denying due process was crossed,
then it is hard to imagine that there will ever be such an instance, and abuses of this
kind will essentially go unchecked, immune from judicial scrutiny.
The case of City of Apopka v. Orange County, 299 So.2d 657 (Fla. 4th DCA
1974) is, perhaps, the most frequently cited Florida case recognizing the
unlawfulness of a plebiscite in zoning matters. In that case the court found that an
illegal plebiscite had occurred because the opposition testimony consisted "in the
main [of] laymen's opinions unsubstantiated by any competent facts." /d. at 660.
Those circumstances do not even come close to the egregious circumstances of the
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present case where there was a mob-like environment of open hostility punctuated
with uncurbed applause, impassioned speakers on everything from Hurricane
Katrina, death on the streets or in homes due to toxic mold, to the developer's
greed, to the admission by none other than the presiding judge that the matter had
already been decided by a prior election. This was far more of a plebiscite than
anything that even remotely occurred in City of Apopka.
While the lay opinions in Apopka did not amount to substantial competent
evidence, they, at least, pertained to the issues in question, impacts of the proposed
development upon the community. In the present case the effective "political
rally" was totally irrelevant to the issue of vested rights. The following essential
holding of Apopka is applicable, afortiori to the circumstances at bar:
Although notice to and hearing of the proponents and opponents of an
application for a special exception or other zoning change are
essential and all interested parties should be given a full and fair
opportunity to express their views, it was not the function of the Board
of County Commissioners to hold a plebiscite on the application for
the special exception. Rockville Fuel and Feed Co. v. Board of
Appeals. 257 Md. 183,262 A.2d 499,504 (1970). As pointed out by
Professor Anderson in Volume 3 of his work, American Law of
Zoning, s 15.27, pp. 155-156:
'It does not follow, ... that either the legislative or the quasi-judicial
functions of zoning should be controlled or even unduly influenced
by opinions and desires expressed by interested persons at public
hearings. Commenting upon the role of the public hearing in the
processing of permit applications, the Supreme Court of Rhode Island
said:
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'Public notice of the hearing of an application for exception ... is not
given for the purpose of polling the neighborhood on the question
involved, but to give interested persons an opportunity to present facts
from which the board may determine whether the particular provision
of the ordinance, [applied]. The board should base their
determination upon facts which they find to have been established,
instead of upon the wishes of persons who appear for or against the
granting of the application.' The objections of a large number of
residents of the affected neighborhood are not a sound basis for the
denial of a permit. The quasi-judicial function of a board of
adjustment must be exercised on the basis of the facts adduced;
numerous objections by adjoining landowners may not properly be
given even a cumulative effect. While the facts disclosed by
objecting neighbors should be considered, the courts have said that: 'A
mere poll of the neighboring landowners does not serve to assist the
board in determining whether the exception applied for [meets the
applicable criteria of the Code]." [Id. at 559-60]
In Conetta v. City of Sarasota, 400 So.2d 1051 (2d DCA 1981), the District
,.
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Court "reversed" the Circuit Court's denial of certiorari relief where Commission's
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"decision appears to be based primarily on the sentiments of other residents of
Siesta Key as to whether the special exception should be granted. It amounted to
no more than a popularity poll of the neighborhood." Id. at 1053, relying upon
Apopka. As with Apopka, the grounds for certiorari relief are far more compelling
in the present case than in Conetta.
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CONCLUSION
The Court should grant certiorari based upon the grounds set forth herein,
quash resolution of the City Commission denying the vested rights/estoppel
application, find that the Petitioner is entitled to a favorable determination of
vested rights/estoppel against application of the moratorium, and require that the
City conduct proceedings consistent with this Court's order.
Respectfully submitted,
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Boulevard, Suite 2500
Miami, Florida 33131-5340
Attorneys for TCY Limited, Inc.
TelePhon~~.-374-7580\
By: A' ~____
~tanley B. Price
Flori~O.14364'
By: i/ ~~~
Robert L. Krawcheck
Florida Bar No. 128019
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CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Petition for Writ of Certiorari complies with
the font requirements of Rule 9.100(1), Florida Rules of Appellate Procedure.
By:
4~-------
Ro'bert L. Krawcheck
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CERTIFICATE OF SERVICE
~BY CERTIFY that a true and correct copy of the foregoing has been
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mal e this 7~ay of OC r: ,2005 to: David M. Wolpin, Esq., Attorney
for City of Aventura, 2665 S. Bayshore Drive, Suite 420, Miami, Florida 33133
and Keith Marshall, Esq., General Counsel for Biscayne Cove Condominium
Association, Concord Center, 2999 N.E. 191 Street, Suite 805, Aventura, Florida
33180.
~=
Rot5ert L. Krawcheck
---
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'HARVEY RUVIN
ClERK .
CIRCUIT AND COUNTY COURTS
APPELLATE DIVISION
"
5(jf/ / f/.L-K
ROOM 138
MIAMI. DADE COUNTY COURT HOUSE
73 WEST FLAGLER STREET
MIAMI, FL 33130
October 12, 2005
RE: Appellate Court Case No.: 05-392 AP
Lower Court Case No.: 2005-48
PETITIONER, SHEFAOR/TARRAGON, LLLP
vs.
RESPONDENT, THE CITY OF AVENTURA
Stanley B. Price, Esq.
Robert L. Krawcheck, Esq.
Bilzin Sum berg Baena Price & Axelrod LLP
200 S. Biscayne Blvd., Ste. 2500
Miami, FL33131
THE ORIGINAL FILED
ON OCT 1 2 2005
IN THE OFFICE OF
CIRCUIT COURT DAIle CO
.Pl.
Dear Mr. Price and Mr. Krawcheck:
The Clerk of the Court acknowledges receipt of the following:
Petition for Writ of Certiorari reflecting the lower tribunal filing date of October 07, 2005.
Appealing an order from the City of Aventura, Florida entered on September 7, 2005.
In the future, please use this Court's case number on all motions and correspondence filed in
this cause. Refer-to the Florida Rules of Appellate Procedure for time calculations and other
requirements.
Sincerely,
HARVEY RUVIN
CLERK OF THE CIRCUIT AN
IN AND FOR MIAMI-DAD <l
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BY 5,
Thomas S, Muel
Deputy Clerk
cc: David M. Wolpin, Esq.
Keith Marshall, Esq.
Ack.ltr.petition.dot
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IN THE CIRCUIT COURT OF THE 11 TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
05":'Z0125 (ftlp
CASE NO.
SHEFAORffARRAGON, LLLP,
a Florida limited liability limited partnership.
Plaintiff,
v.
CITY OF A VENTURA, FLORIDA AND
THE CITY COMMISSION OF THE CITY
OF A VENTURA, FLORIDA
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Defendant.
COMPLAINT
Plaintiff, SHEFAORffARRAGON, LLLP, a Florida limiteJ liability limited
partnership, sues Defendants, THE CITY OF A VENTURA FLORIDA, (the "City"),
Al\TD THE CITY COMMISSION ("Commission"), and states as follows:
1. This is an equitable action brought pursuant to the holding in the cause
styled Jennines v. Dade County, S89 So. 2d 1337 (Fla. 3Td DCA 1991). A true and
correct copy is attached hereto as Exhibit "A." and made a part hereof.
2. The Plaintiff is a limited liability limited partnership and is the owner of'
real property located within the City, commonly referred to as "Lincoln Pointe", located
at 17900 N.E. 3151 Court (the "Property").
3. On or about June 7, 200S, the City, acting through its duly elected
Commission, enacted Ordinance No. 2005-07, which imposed a moratorium directly
impacting the Property. A true and correct copy is attached hereto as Exhibit "B".
19145\00018214.1}
HAll, JOSEPH AND LAMB, P."'.. PENTHOUSE. 14iii!:8 BRICKELL AVENue, MIAMI, FLORIDA 33131-3491 .TEL. (3051 374-5030. FAX (305) 374-5033
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4. Pursuant to Section 4(B) of the Moratorium Ordinance, the Plaintiff filed a
"Vested Rights" application with the City Manager. A true and correct copy of the
Vested Rights Application is attached hereto as Exhibit "C."
5. The City Manager, without notice or hearing, issued a denial of the
Plaintiffs Vested Rights Application on August 17, 2005. See Exhibit "D" attached
hereto.
6. Pursuant to Section 4(B) of the Moratorium Ordinance, the Plaintiff, on
August 18, 2005 filed an appeal of the City Manager's denial of vested rights to the City
Commission. (See Exhibit "E" attached hereto).
7. The appeal of the City Manager's decision, pursuant to the Moratorium
Ordinance, constitutes a quasi-judicial proceeding before the Commission.
8. On September 6, 2005, the Commission conducted a quasi-judicial
hearing and denied the vested rights application of the Plaintiff herein pursuant to
Resolution 2004-48 adopted September 6, 2005, filed September 7, 2005. (See Exhibit
"F" attached hereto).
9. Pursuant to Section 34-34 of the City Code, the Commission is required to
place on the public record of the quasi-judicial hearing, all ex parte communications
relating to the specific issue pertaining to the hearing.
10. The entire Commission, when asked by the City Attomey, indicated that
no ex-parte communications whether oral or written, were engaged in prior to the quasi-
judicial hearing.
11. The City Commission was not under oath when asked by the City
Attomey, as to ex-parte communications.
\914SIOOO18214.112
HALL, JOSEPH AND LAMB, P.A.. PENTHOUSE, 1428 BRICtu:LLAVE~UE. MIAMI, FLORIDA 33131-3481 .TEL (305) 374-$030 . FAX (30S) 37+5033
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COUNT I - JENNINGS VIOLATION
12. Plaintiffre-alleges and incorporates paragraphs 1 through 11.
13. Ex-parte communications, prior to a quasi-judicial proceeding are
inherently improper and are anathema to quasi-judicial proceedings.
14. Ex-parte communications prior to quasi-judicial proceedings are denials of
due process pursuant to the Federal and Florida Constitutions.
15. Upon information and belief, the members of the Commission engaged in
ex-parte communications with:
a. neighboring property owners and/or residents who reside in close
proximity to the Property;
b. the City Manager and/or his staff; and
c. fellow members of the Commission.
16. Said ex-parte communications prejudiced the Plaintiff in the quasi-judicial
proceeding, described in Paragraph 8 herein.
17. The City Commission remains prejudiced in this matter.
WHEREFORE, Plaintiff prays for an Order of this Court finding the Defendant
City and/or Commission and/or individual Commissioners engaged in ex-parte
communication, which resulted in prejudice to the Plaintiff. The Court should strike
Resolution No. 2005-48 and provide for a de novo judicial determination of Plaintiffs
right to vested rights/estoppel.
\914SIOOO18214.1}3
HA>L-L, .JOSEPH AND LAMB, P.A., PENTHOUSE, 14Z8 BRICKELL AVENUE, MIAMI, FLORIDA 33131.3491 . T~L. (3051 374.5030' FAX (305) 374.5033
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COUNT II - SUNSHINE LAW VIOLATION
18. Plaintiff re-alleges Paragraphs 1 though 17 herein.
19. Pursuant to Florida Statutes, Chapter 119, the Government in the Sunshine
Law, it is illegal for two or more elected officials to engage in communications directly
or indirectly affecting matters to come before its govemmental body for official action.
20. Upon information and belief, two or more Commissioners engaged in
discussions and had communications prior to the September 6, 2005 meeting, which
discussions and communication related to the quasi-judicial hearing described in
Paragraph 8 herein.
WHEREFORE, Plaintiff prays for an Order of this Court finding a Sunshine Law
Violation occurred by and between two or more Commissioners of the City and imposing
penalties as provided by law.
COUNT III - INY ALIDITY OF SECTION 34-34 OF THE
CODE OF THE CITY OF A VENTURA
21. Plaintiff re-alleges Paragraphs 1 through 20 herein.
22. The holding in Jennings v. Dade Countv. supra, determined that ex-parte
communications are inherently improper and are an anathema to quasi-judicial hearings.
23. Section 34-34 of the Code of the City authorizes the Commission to
communicate with the City Manager and/or his staff during the pendancy of a quasi-
judicial proceeding.
24. Upon information and belief, both before and subsequent to the decision
by the City Manager on August 17, 2005 and prior to the Commission meeting of
{914S\ooo18214.1}4
HALL, .JOSEPH AND LAMB, P.A., PENTHOUSE, 142.B BRICKELL AVENUE, MIAMI, FLORIDA 33131-3491 -TEL. (30S) 374-5030 - FAX (3051374-5033
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September 6, 2005, members of the Commission engaged in discussions with the City
Manager, relating to the vested rights application and to his decision of August 17,2005.
25. The discussions described in Paragraph 24 are in direct contravention of
the rule delineated in Jennings, supra.
26. The discussions described in Paragraph 24 were not disclosed on the
public record, nor were they made public by the Commission at the September 6, 2005
meeting of the City Commission.
27. Section 34-34 of the City Code constitutes a violation of due process and
is an unlawful attempt by a legislative body to alter the requirements of due process.
WHEREFORE, Plaintiff seeks an Order of this Court declaring that Section 34-34
of the Code of the City is unconstitutional and an improper interference with the due
process rights of the Plaintiff and constitutes an illegal infringement upon the powers of
the judiciary.
Respectfully submitted,
HALL, JOSEPH, AND LAMB, P.A.
1428 Brickell Avenue, Penthouse
Miami, Florida 33131
Telephone: (305) 374-5030
Facsimile: 005) 374-5033
By: ~;cW~
ANDREW C. HALL
Florida Bar No. 111480
{9145\ooo18214.l}5
HALL, ,JOSEPH AND LAMB, P.A.; PC NT HOUSE, 1428 BRICKELL AVENUE, MIA~I. FLORIDA 33131-3491 'TEL. (305) 374-5030. FAX (3051 374-503,3
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Page 2 of 10
589 So.2d 1337
589 So.2d 1337, 16 Fla. L. Weekly D2059, 17 Fla. L. Weekly D26
Page I
(Cite as: 589 So.2d 1337)
H
District Court of Appeal of Florida,
Third District.
Milton S. JENNINGS, Appellant,
v.
DADE COUNTY and Larry Schatzman, Appellees.
Nos. 88-1324, 88-1325.
Aug. 6. 1991.~.1
FN. Judge Barkdull participated in
decision only.
On Rehearing Granted Dec. 17, 1991.
Landowner petitioned for writ of certiorari to
challenge trial court order which dismissed
landowner's count alleging due process violation as
result of ex parte communication between adjacent
landowner's lobbyist and county commissioners
before vote approving use variance for adjacent
landowner, which gave to landowner leave to
amend .complaint only against county, and which
denied motion to dismiss count alleging nuisance as
result of permitted use. The District Court of
Appeal, Nesbitt, J., held on rehearing that: (I)
landowner's timely petition activated common-law
certiorari jurisdiction; (2) lobbyist's ex parte
communication could violate due process despite
landowner's actual and constructive knowledge of
ex parte communication; and (3) landowner's prima
facie case of ex parte contacts would give rise to
presumption of prejudice and shift burden to
adjacent landowner and county. to. rebut the
presumption.
Quashed and remanded.
Ferguson, J., filed concurring opinion upon grant
of rehearing.
West Headnotes
[I) Zoning and Planning €=741
4l4k741 Most Cited Cases
Landowner's timely petition activated common-law
certiorari jurisdiction to review trial court order
which dismissed count alleging ex parte
communication between adjacent landowner's
lobbyist and county commissioners prior to
approval of variance, which gave to landowner
leave to amend complaint only against county and
to transfer matter to appellate division of circuit
court, and which denied motion to dismiss count
alleging that use permitted by variance constituted
nuisance; order was departure from essential
requirements of law and required plaintiff
landowner to litigate putative claim in proceeding
that could not afford relief requested.
[2) Zoning and Planning €=741
414k741 Most Cited Cases
No impediment existed to exercise of jurisdiction
over defendant landowner, in that common-law
certiorari jurisdiction was activated by plaintiff
landowner's timely petition.
[31 Constitutional Law €=318(1)
92k3l8(\) Most Cited Cases
Quality of due process required in quasi-judicial
hearing is not same as that to which party to full
judicial hearing is entitled. West's F .S.A. Const.
An. I, ~ 9; U.S.C.A. Const.Amends. 5,14.
(4) Administrative Law and Procedure €=311
l5Ak3ll Most Cited Cases
(4) Administratiye Law and Procedure €=313
15Ak313 Most Cited Cases
Quasi-judicial proceedings are not controlled by
strict rules of evidence and procedure.
(5) Constitutional Law €=318(1)
92k318(1) Most Cited Cases
Quasi-judicial decision . based upon record is not
conclusive if minimal standards of due process are
02005 ThomsonlWest. No Claim to Orig. U.S. GOVI. Works.
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589 So.2d 1337
Page 3 of 10
(Cite as: 589 So.2d 1337)
589 So.2d 1337, 16 Fla. L. Weekly D2059, 17 Fla. L. Weekly D26
Page 2
denied. West's F.S.A. Const.Art. I, ~. 9; U.S.C.A.
Const.Amends. 5, 14.
(6) Constitutional Law C=>318(1)
92k318(1) Most Cited Cases
Quasi-judicial hearing generally meets basic due
process requirements if parties are provided notice
of hearing and opportunity to be heard. West's
F.S.A. Const. Art. I, ~ 9; U.S.C.A. Const.Amends.
5.14.
(71 Zoning and Planning C=>3S9
414k359 Most Cited Cases
In quasi-judicial zoning proceedings, parties must
be able to present evidence, cross-examine
witnesses, and be infonned of all facts upon which
commission acts.
(81 Constitutional Law C=>278.2(2)
92k278.2(2) Most Cited Cases
Ex parte communication between landowner's
lobbyist and county commissioners before they
voted to approve use variance for landowner could
violate due process despite adjacent landowner's
actual or constructive knowledge of communication
and failure to subpoena lobbyist. Wests F.S.A.
Const. Art. I, ~ 9; U.S.C.A. Const.Amends. 5, 14.
(91 Administrative Law and Procedure C=>314
I 5Ak314 Most Cited Cases
Ex parte communications are inherently improper
and are anathema to quasi-judicial proceedings;
quasi-judicial officer should avoid all such contacts
where they are identifiable.
(10] Administrative Law and Procedure C=>314
I 5Ak314 Most Cited Cases
Occurrence of. ex parte communication in
quasi-judicial proceeding doe,s not mandate
automatic reversal.
[II) Administrative Law and Procedure C=>314
15Ak314 Most Cited Cases
Allegation of prejudice resulting from ex parte
contacts with decision makers in quasi-judicial
proceeding states cause of action.
(121 Administrative Law and Procedure C=>314
15Ak314 Most Cited Cases.
Upon aggrieved party's proof that ex parte contact
occurred with decision makers in quasi-judicial
proceeding, its effect is presumed to be prejudicial,
unless defendant proves contrary by competence
evidence. West's F.S.A. ~ 90.304.
(13) Constitutional Law oC=318(1)
92k318(1) Most Cited Cases
In detennining prejudicial effect of ex parte
communication allegedly violating due process in
quasi-judicial proceeding, trial court should
consider the following criteria: what was gravity of
ex parte communication; whether contacts may
have influenced agency's ultimate. decision;
whether party making improper contacts benefited
from agency's ultimate decision; whether contents
of communications were unknown to opposing
parties; and whether vacating of agency's decision
on remand for new proceedings would serve useful
purpose. West's F.S.A. Const Art. I, ~ 9; U.S.C.A.
Const.Amends. 5, 14.
(14] Counties C=>S8
104108 Most Cited Cases
Allegation of prejudicial ex parte communication in
quasi-judicial proceeding before county commission
enables party to maintain original equitable cause of
action to establish its claim.
(151 Counties C=>S8
104k58 Most Cited Cases
Once claim of prejudicial ex parte communication
in quasi"judicial proceeding before county
commission is established, offending party will be
required to prove absence of prejudice. .
116) Zoning and Planning C=>678
414k678 Most Cited Cases
Landowner's prima facie case of ex parte contact
between adjacent landowner's lobbyist and county
commissioners before they voted to approve use
variance for adjacent landowner would give rise to
presumption of prejudice. West's F.S.A. ~ 90.304.
(17) Zoning and Planning C=>679
4l4k679 Most Cited Cases
Landowner's prima facie case of ex parte contacts
C 2005 ThomsonlWest. No Claim to Orig. U.S. Gov!. Works.
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Page 4 of 10
589 So.2d 1337
589 So.2d 1337, 16 Fla. L. Weekly 02059,17 Fla. L. Weekly 026
(Cite as: 589 So.2d 1337) .
between adjacent landowner's lobbyist and
commissioners before they voted to approve use
variance for adjacent landowner would shift burden
to county and adjacent landowner to rebut
presumption of prejudice. West's F.S.A. ~ 90.304.
(18) Zoning and Planning C=679
414k679 Most Cited Cases
To rebut presumption of prejudice from ex parte
contacts between landowner's lobbyist and county
commissioners before they voted to approve use
variance for landowner, landowner could rely on
any favorable evidence presented during adjacent
landowner's case-in-chief, including that adduced
during cross-examination of adjacent landowner's
witnesses. West's F.S.A. ~ 90.304. .'
*1339 John G.Fletcher, South Miami, for
appellant.
Robert D. Korner and Roland C. Robinson, Miami,
Robert A. Ginsburg, County Atty., and Eileen Ball
Mehta and Craig H. Coller, Ass!. County AllyS., for
appellees.
Joel V. Lumer, Miami, for The Sierra Club as
Amicus Curiae.
Before BARKDULL, (FN*1 NESBITI and
FERGUSON, JJ.
FN* Judge Barkdull participated in
decision only.
ON REHEARING GRANTED
NESBIIT, Judge.
The issue we confront is the effect of an ex parte
communication upon a decision emanating from a
quasi-judicial proceeding of the Dade County
Commission. We hold that upon proof that a
quasi-judicial officer received an ex parte contact, a
presumption arises, pursuant to section 90.304,
Florida Statutes (1989), that the contact was
prejudicial. The aggrieved party will be entitled to
a new and complete hearing before the commission
unless the defendant proves that the communication
was not, in fact, prejudicial. For the reasons that
Pagt 3
follow, . we quash the order under review with
directions.
Respondent Schatzman applied for a variance to
pennit him to operate a quick oil change business
on his properly adjacent to that of. petitioner
Jennings. The Zoning Appeals Board granted
Schatzman's request. The county commission
upheld the board's decision. Six days prior to the
commission's action, a lobbyist Schatzman
employed to assist him in connection with the
proceedings registered his identity as required by
section 2-II.\(s) of the Dade County Ordinances.
Jennings did not anempt to determine the content of
any communication between the lobbyist and the
commission or otherwise challenge the propriety of
any communication prior to or at the hearing.
Following the commission order, Jennings filed an
action for declaratory and injunctive relief in circuit
court wherein he alleged that Schatzman's lobbyist
communicated with some or all of the county
commissioners prior to the vote, thus denying
Jennings due process both under the United States
and Florida constitutions as well as section (A)(8)
of the Citizens' Bill of Rights, Dade County Charter.
Jennings requested . J 340 the court to conduct a
hearing to establish the truth of the allegations of
the complaint and upon a favorable detennination
then to issue an injunction prohibiting use of the
properly as allowed by the county. Based upon the
identical allegations, Jennings also claimed in the
second count of his complaint that Schatzman's use
of the pennined variance constituted a nuisance
which he requested the court to enjoin. The trial
court dismissed Count I of the complaint, against
both Dade County and Schatzman. The court gave
Jennings leave only against Dade County to amend
the complaint and to transfer the maner to the
appellate division of the circuit court. The trial
court denied Schatzman's motion to dismiss Count
II and required him to file an answer. Jennings
then timely filed this application for common law
certiorari.
[1)[2) We have jurisdiction based on the following
analysis. The trial court's order dismissed Jennings'
equitable claim of non.record ex parte
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Page 5 of 10
Page 4
589 So.2d 1337
589 So.2d 1337, 16 Fla. L. Weekly D2059, 17 Fla. L. Weekly D26
(Cite as: 589 So.2d 1337)
communications while it simultaneously reserved '
jurisdiction for Jennings to amend his complaint so
as to seek common law certiorari review pursuant to
Dade County v. Marca, S.A., 326 So.2d 183
(Fla.l976). Under Marca, Jennings would be
entitled solely to a review of the record as it now
exists. However, since the content of ex parte
contacts is not part of the existing record, such
review would prohibit the ascertainment of the
contacts' impact on the commission's detennination.
This order has the effect then of so radically
altering the relief available to Jennings that it is the
functional equivalent of requiring him to litigate in
a different forum. Thus, Jennings' timely petition
activates our common law certiorari jurisdiction
because the order sought to be reviewed a)
constitutes a departure from the essential
requirements of law, and b) requires him to litigate
a putative claim in a proceeding that cannot afford
him the relief requested and for that reason does not
afford him an adequate remedy. See Tantillo v.
Miliman. 87 So.2d 413 (Fla.1956); Norris v.
Southern Bell Tel. & Tel. Co., 324 So.2d 108 (Fla.
3d DCA 1960). The same reasoning does not
apply against Schatzman. Nonetheless, because we
have jurisdiction, there is no impediment to our
exercising it over Schatzman as a party.
[3][4][5][6][71 At the outset of our review of the
trial court's dismissal, we note that the quality of
due process required in a quasi-judicial hearing is
not the same as that to which a party to full judicial
hearing is entitled. See Gass v. Lopez, 419 U.S.
565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Hadley
v. Department of Admin., 411 So.2d 184 (Fla.1982)
. Quasi-judicial proceedings are not controlled by
strict rules of evidence and procedure. See Astore
v. Florida Real Estate Comm'n. 374 So.2d 40 (Fla.
3d DCA 1979); Woodham v. Williams, 207 So.2d
320 (Fla. I st DCA 1968). Nonetheless, certain
standards of basic fairness must be adhered to in
order to afford due process. See Hadley, 411
So.2d at 184; City of Miami v. Jervis, 139 So.2d
513 (Fla. 3d DCA 1962). Consequently, a
quasi-judicial decision based upon the record is not
conclusive if minimal standards of due process are
denied. See Morgan v. United States, 298 U.S.
468, 480- 81, 56 S.CL 906, 911-12; 80 L.Ed. 1288
(1936); Western Gillette, Inc. v. Arizona Corp. '
Comm'n, 121 Ariz. 541, 592 P.2d 375
(Ct.App.1979). A quasi-judicial hearing generally
meets basic due process requirements if the parties
are provided notice of the hearing and an
opportunity to be heard. In quasi-judicial zoning
proceedings, the parties must be able to present
evidence, cross-examine witnesses, and be infonned
of all the facts upon which the commission acts.
Coral Reef Nurseries, Inc. v. Babcock Co.. 410
So.2d 648, 652 (Fla. 3d DCA 1982). [FNII
FNI. It was conceded at oral argument 'that
the hearing before the commission in Ihis
case was quasi-judicial.
The reported decisions considering the due process
effect of an ex parte communication upon a
quasi-judicial decision are conflicting. Some
courts hold that.an ex parte communication does not
deny due process where the substance of the
communication was capable of discovery by the
complaining party in time to rebut it on the record.
See. e.g.. *1341 Richardson v. Perales, 402 U.S.
389, 410, 91 S.Ct. 1420, 1431-32, 28 L.Ed.2d 842
(1971); United Air Lines, Inc. v. C.A.B., 309 F.2d
238 (D.C.Cir.1962); Jarroll v. Scrivener, 225
F.Supp. 827, 834 (D.D.C.1964). Other courts
focus upon the nature of the ex parte
communication and whether it was material to the
point that it prejudiced the complaining party and
thus resulted in a denial of procedural due process.
E.g., Waste Management v. Pollution Con/rol Bd..
175 IIl.App.3d 1023, 125 III.Dec. 524, 530 N.E.2d
682 (CI.App.1988), appeal denied, 125 1lI.2d 575,
130 IIl.Dec. 490, 537 N.E.2d 819 (1989);
Professional Air Traffic Controllers Org. (PATCO)
v. Federal Labor Relations AlIth., '685 F.2d 547,
564-65 (D.C.Cir.1982); Erdman v. Ingraham, 28
A.D.2d 5, 280 N.Y.S.2d 865, 870 (Ct.App.1967).
[81 The county adopts the first position and argues
that Jennings was not denied due process because
he either knew or should have known of an ex parte
communication due to the mandatory registration
required of lobbyists. The county further contends
that Jennings failed to avail himself of section
33-316 of the Dade County Code to subpoena the
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Page 5
589 So.2d 1337, 16 Fla. L. Weekly D2059, 17 Fla. L. Weekly 026
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lobbyist to testify at the hearing so as to detect and
refute the content of any ex parte communication.
We disagree with, the county's position. '
[91[101[111[12] Ex parte communications are
inherently improper and are anathema to
quasi-judicial proceedings. Quasi-judicial officers
should avoid all such contacts where they are
identifiable. However, we recognize the reality
that commissioners are elected officials in which
capacity they may unavoidably be the recipients of
unsolicited ex parte communications regarding
quasi-judicial matters they are to decide. The
occurrence of such a communication in a
quasi-judicial proceeding does not mandate
automatic reversal. Nevertheless, we hold that the
allegation of prejudice resulting from ex parte
contacts with the decision makers in a quasi-judicial
proceeding states a cause of action. E.g.. Waste
Management; PATCO, Upon the aggrieved party's
proof that an ex parte contact occurred, its effect is '
presumed to be prejudicial unless the defendant
proves the contrary by competent evidence. ~
90.304. See generally Caldwell v. Division of
Retirement, 372 So.2d 438 (Fla.1979) (for
discussion of rebuttable presumption affecting the
burden .of proof). Because knowledge and
evidence of the contact's impact are peculiarly in
the hands of the defendant quasi-judicial officer(s),
we find such a burden appropriate. See
rechnicable Video Sys. v. Americable, 479 So.2d
810 (Fla. 3d DCA 1985); Allstate Finance Corp, v.
Zimmerman, 330 F.2d 740 (5th Cir.1964).
[13] In determining the prejudicial effect of an ex
parte communication, the trial court should consider
the following criteria which we adopt from P A TCO,
685 F.2d at 564-65:
[wlhether, as a result of improper ex parte
communications, the agency's decisionmaking
process was irrevocably tainted so as to make the
ultimate judgment of the agency unfair, either as
to an innocent party or to the public interest that
the agency was obliged to protect. In making
this determination, a number of considerations
may be relevant: the gravity of the ex parte
communications; whether the contacts may have
influenced the agency's ultimate decision;
whether the party making the improper contacts
benefited from the agency's ultimate decision;
whether the contents of the communications were
unknown to opposing parties, who therefore had
no opportunity to respond; and whether vacation
of the agency's decision and remand for new
proceedings would serve a useful purpose. Since
the principal concerns of the court are the
integrity of, the process and the fairness of the
result, mechanical rules have little place in a
judicial decision whether to vacate a voidable
agency proceeding. Instead, any such decision
must of necessity be an exercise of equitable
discretion.
Accord E & E Hauling, Inc. v. Pol/lItion Control
Bd., 116 III.App.3d 586, 71 1ll.Dec. 587, 603, 451
N.E.2d 555, 571 (Ct.App.1983), affd, 107 1II.2d
33,89 III.Dec. 821, 481 N.E.2d 664 (1985).
[14][15] Accordingly, we hold that the allegation
of a prejudicial ex parte communication *1342 in a
quasi-judicial proc,eeding before the Dade County
Commission will enable a party to maintain an
original equitable cause of action to establish its
claim. Once established, the offending party will
be required to prove an absence of prejudice. [FN2]
FN2. In such a proceeding, the principles
and maxims of equity are applicable. See
22 FlaJur.2d Equity ~~ 44, et seq. (1980).
[16][17][18] In the present case, Jennings'
complaint does not allege that any communication
which did occur caused him prejudice.
Consequently, we direct that upon remand Jennings
shall be afforded an opportunity to amend his
complaint. Upon such an, amendment, Jennings
shall be provided an evidentiary hearing to present
his prima facie case that ex parte contacts occurred.
Upon such proof, prejudice shall be presumed.
The burden will then shift to the respondents to
rebut the presumption that prejudice occurred to the
claimant. Should the respondents produce enough
evidence to dispel the presumption, then it will .
become the duty of the trial judge to determine the
claim in light of all the evidence in,the case. [FN3].
[FN4]
02005 ThomsonlWest. No Claim to Orig. U.S. Gov!. Works.
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Page 7 of 10
589 So.2d 1337
589 So.2d 1337, 16 Fla. L. Weekly 02059,17 Fla. L. Weekly 026
(Cite as: 589 So.2d 1337)
,FN3. In rebutting the presumption of
prejudice, respondent may rely on any
favorable evidence presented during the
claimant's case-in-chief, including that
adduced during respondent's
cross-examination of claimant's witnesses.
FN4. Under the P A TCO test adopted, one
of the primary concerns is whether the ex
pane communication had sufficient impact
upon the decision and, therefore, whether
the vacation of the agency's decision and
remand for a new proceeding would be
likely to change the result.
For the foregoing reasons, the application for
common law certiorari is granted. The orders of
the 'circuit court are quashed [FN51 and remanded
with directions.
FN5. Nothing in this decision shall affect
our holding in Izaak Walton League oj
America v. Monroe County, 448 So.2d
1170 (Fla. 3d DCA 1984) (county
commission acting in a legislative
capacity).
BARKDULL, J., concurs.
FERGUSON, Judge (concurring),
I concur in the result and write separately to
address two arguments of the appellees: (I) This
court in Coral Reef Nurseries, Inc. v. Babcock Co.,
410 So.2d 648 (Fla. 3d DCA 1982), rejected
attempts to categorize county comm ission hearings
on district boundary changes as "legislative," while
treating hearings on applications for, special
exceptions or variances as "quasi-judicial"; and (2)
the petitioner does not state a cause of action by
alleging simply that a lobbyist discussed the case in
a private meeting with members of the County
Commission prior to the hearing. It is clear from
Judge Nesbitt's opinion for the court that neither
argument is accepted.
Legislative-and Quasi-Judicial Functions Distinct
In support of its argument, that "[tlhis Court has
Page 6
previously rejected attempts to categorize county
commission hearings on district boundary changes
as 'legislative', while treating hearings on
applications for special exceptions or variances as
'quasi-judicial'," Dade County cites Coral Reej
Nurseries, Inc. v. Babcock Company, 410 So.2d
648 (Fla. 3d DCA 1982). The argument is made
for the purpose of bringing this case within what the
respondents describe as a legislative-function
exception to the rule against ex parte
communications. Indeed, there is language in the
Coral Reef opinion, particularly the dicta that "it is
the character of the administrative hearing leading
to the action of the administrative body that
detennines the label" as legislative or quasi-judicial,
Coral Reef at 652, which, when read out of context,
lends support to Dade County's contentions. As an
abstract proposition, the statement is inaccurate.
Whereas the character of an administrative hearing
will detennine whether the proceeding is
quasi-judicial or executive, De .Groot v. Sheffield.
95 So.2d 912, 9.\5 (Fla.1957), it is the nature of the
act perfonned that determines its character as
legislative or otherwise. Suburban Medical Center
v. OIathe Community Hasp., 226 Kan. 320, 328,
597 P.2d 654, 661 (1979). See also *1343
Walgreen Co. v. Polk County, 524 So.2d 1119,
1120 (Fla. 2d DCA 1988) ("The quasi-judicial
nature of a proceeding is not altered by mere
procedural flaws.").
A judicial inquiry investigates, declares and
enforces liabilities as they stand on present facts
and under laws supposed already to exist. That
is its purpose and end. Legislation, on the other
hand, looks to the future and changes existing
conditions by making a new rule to be applied
thereafter to all or some part of those subject to
its power.
Suburban Medical Celller, 597 P.2d at 661
(quoting Prentis v. Atlalltic Coast Line Co., 211
U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)
). [FNll
FN 1. Relying on Coral Reef, the majority
opinion refers to "quasi-judicial zoning
proceedings," a confounding phrase which
has its genesis in Rinker Materials Corp. v.
C> 2005 ThomsonlWest. No Claim to Orig. U.S. Gov!. Works.
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Page S of 10
589 So.2d 1337
589 So.2d 1337, 16 Fla. L. Weekly D2059, 17 Fla. L. Weekly D26
(Cite as: 589 So.2d 1337)
Dade County, 528 So.2d 904, 906, n. 2
(Fla. 3d DCA 1987). There Dade County
argued to this court that the according of
"procedural due process" converts a
legislative proceeding into a quasi-judicial
proceeding. citing, Coral Ree] That
proposition runs afoul of an entire body of
administrative law. If an act is in essence
legislative in character, the fact of a notice
and a hearing does not transform it into a
judicial act. If it would be a legislative act
without notice and a hearing, it is still a
legislative act with notice and a hearing.
See Prentis v. Atlantic Coast Line Co., 211
U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908)
; Reagan v. Farmers' Loan & Trust Co.,
154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed.
1014 (1894).
It is settled that the enactment and amending of
zoning ordinances is a legislative function--by case
law, Schauer v. City of Miomi Beach. 112 So.2d
838 (Fla.1959); Machado v. Musgrove, 519 So.2d
629 (Fla. 3d DCA 1987) (en banc), rev. denied, 529
So.2d 694 (Fla.1988), by statute, sections 163.3161
and 166.041, Florida Statutes (1989), and by
ordinance, Dade County Code ~ 35-303. See also
Anderson, Law of Zoning, ~ 1.13 (2d Ed.1976)
(zoning is a legislative act representing a legislative
judgment as to how land within the city should be
utilized and where the lines of demarcation between
the several zones should be drawn); 101 C.J.S.
Zoning and Land Planning ~ I (1958) (same). It is
also fairly settled in this state that the granting of
variances, [FN21 and special exceptions or penn its,
are quasi-judicial actions. [FN3 ] Walgreen Co. v.
Polk County, 524 So.2d 1l19, 1120 (Fla. 2d DCA
1988); City of New Smyrna Beach v. Barton, 414
So.2d 542 (Fla. 5th DCA) (Cowart, J., concurring
specially), rev. denied, 424 So.2d 760 (Fla;l982);
City of Apop1ca v. Orange County, 299 So.2d 657
(Fla. 4th DCA 1974); Sun Ray Homes, Inc. v.
County of Dade, 166 So.2d 827 (Fla. 3d DCA 1964)
FN2. A variance is a modification of the
zoning ordinance which may be granted
when such variance will not be contrary to
Page 7
the public interest and when, owin2 to
conditions peculiar to the property and not
the result of the actions of the applicant, a
literal enforcement of the ordinance would
result in unnecessary and undue hardship.
7 FlaJur2d, Building, Zoning. and Land
Controls, ~ 140 (1978).
The normal function of a variance is 10
permit a change in "building reslrictions or
height and density limitations" but not a
change in "use classificationsll. George v.
Miami Shores Vi//age, 154 So.2d 729 (Fla.
3d DCA 1963).
FN3. An administrative body acts
quasi-judicially when it adjudicates private
rights of a particular person after a hearing
which comports with due process
requirements, and makes findings of facts
and conclusions of law on the disputed
issues. Reviewing courts scnninize
quasi-judicial acts by non-deferential
judicial standards. See City of Apopka ",
Orange County, 299 So.2d 657 (Fla. 4th
DCA 1974).
On review of legislative acls, the COUrt
makes a deferential inquiry; i.e., is the
exercise of discretionary authority "fairly
debatable." Southwest Ranches
Homeowners Ass'n v. Broward County,
502 So.2d 931 (Fla. 4th DCA), rev. denied,
511 So.2d 999 (Fla;l987). Further, there
is no requirement that a governmental
body, acting in its legislative capacity,
support its actions with findings of fact and
conclusions of law.
A variance contemplates a nonconfonning use in
order to alleviate an undue burden on the individual
property owner caused by the existing zoning.
Rezoning contemplates a change in existing zoning
rules and Tegulations within a district, subdivision
or other comparatively large area in a given
governmental unit. Troup v. Bird, 53 So.2d 717
(Fla. 195 I); Mayflower Property, lnc. v. City oJ
Fort Lauderdale, 137 So.2d 849 (Fla. 2d DCA
1962); 10lA C.J.S. Zoning and Land Planning ~
231 (1979).
iO 2005 ThomsonlWest. No Claim to Orig. U.S. Gov!. Works.
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Page 9 of 10
Page 8
589 So.2d 1337
589 So.2d 1337, 16 Fla. L. Weekly D2059, 17 Fla. L. Weekly D26
(Cite as: 589 So.2d 1337) .
Coral Reef Case Clarified
Coral Reef involved a legislative action. The issue
before the court was whether "1344 there was a
showing of substantial and material changes in a
1979 application for a rezoning so that a 1978
denial of an application for the same changes, on
the same parcel, by the same applicant, would not
be precluded by res judicata principles. It was not
necessary to hold the 1978 hearing quasi-judicial in
character in order to fmd that the 1978 resolution
had preclusive effect on the 1979 zoning hearing.
There is a requirement for procedu11l1 fairness in all
land use hearings, whether on an application for a
boundary change or a variance. Adherence to that
constitutional standard, however, does not alter the
distinct legal differences between quasi-judicial and
legislative proceedings in land use cases.
We clarify Coral Reef, in accordance with its facts,
as holding only that legislation denying an
application for rezoning has a preclusive effect on a
subsequent application for the same rezoning,
unless the applicant can show substantial and
material changes in circumstances. Treis/er v. City
of Miami, 575 So.2d 218 (Fla. 3d DCA 1991),
relying on Coral Reef An interpretation of Coral
Reef as holding that there is no longer a distinction
between legislative actions and quasi-judicial
actions of a county commission in land use cases
goes far beyond the actual holding of the case, and
is clearly erroneous. See note I supra.
Reliance by the respondents on hook Wal/on
League of America v. Monroe County, 448 So.2d
1170 (Fla. 3d DCA 1984), is similarly misplaced.
In that case we held that county commissioners,
when acting in their legislative capacities, have the
right to publicly state their views on pending
legislative matters. Izaak Wol/on League does not
address the issue of ex parte communications or
prehearing pronouncements in quasi-judicial
proceedings.
Lobbying
Jennings argues here that the behind-the-scenes
lobbying [FN41 of the commissioners by
Schatzman, for the purpose of influencing the
outcome of an appeal from a quasi-judicial
proceeding, violated the Citizens' Bill of Rights
[FN51 of the Dade County Charter, as well as the
due process provisions of. the United States and
Florida Constitutions. We agree, obviously, that
the lobbying actions were unlawful. Dade County
and Schatzman respond that Jennings is entitled to
no relief because he has not alleged and
demonstrated a resulting prejudice. In the opinion
on rehearing this court now clearly rejects that
argument.
FN4. " 'Lobbying' is defined as any
personal solicitation of a member of a
legislative body during a session thereof,
by private interview, or letter or message.
or other means and appliances not
{necessarily] addressed solely to the
judgment, to favor or oppose, or to vote
for or against, any bill, resolution, report,
or claim pending. or to be introduced ....
by any person 'n who is employed for a
consideration by a person or corporation
interested in the passage or defeat of such
bill, resolution, or report, or claim, for the
purpose of procuring the passage or defeat
thereof." Black's Law Dictionary 1086
(rev. 4th ed. 1968). (Emphasis supplied).
The work of lobbying is perfonned by
lobbyists.
A lobbyist is one who makes it a business
to "see" members of a legislative body and
procure, by persuasion, importunity, or the
use of inducements, the passing of bills,
public as well as private, which involve
gain to the promoters. Id.
FN5. Section a(8), Citizens' Bill of Rights,
Dade County Charter, provides in pertinent
part:
At any zoning or other hearing in which
review is exclusively by certiorari, a party
or his counsel shall be entitled to present
his case or defense by oral or documentary
evidence, to submit rebuttal evidence, and
to conduct such cross-examination as may
be required for a full and true disclosure of
the facts. The decision of any such
agency, board, department or authority
10 2005 ThomsonlWest. No Claim to Orig. U.S. Gov!. Works.
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589 So.2d 1337
Page 10 of 10
(Cite as: 589 So.2d 1337)
589 So.2d 1337, 16 Fla. L. Weekly D2059, 17 Fla. L. Weekly D26
Page 9
must be based upon the facts in the record.
Prejudice is to be presumed, without flirther proof,
. from the mere fact that any county commissioner
granted a private audience to a lobbyist, whose
purpose was to solicit the commissioner to vote a
certain way in an administrative proceeding for
reasons not necessarily addressed solely to the
merits of the petition, and that the commissioner did
vote accordingly. Starting with the legal defmition
of lobbying, *1345 see note 4 supra, and applying
common knowledge as to how the practice works,
there is a compelling reason for placing the burden
of proving no prejudice on the party responsible for
the ex parte communication.
Although an ex parte communication with a
quasi-judicial tribunal makes its final action
voidable, rather than void per se, the presumption
which is drawn from the fact of the improper
conduct; is applied to promote a strong social policy
and is sufficient evidence to convince the
fact-froder that the innocent party has been
prejudiced; the rebuttable presumption imposes
upon the party against whom it operates the burden
of proof concerning the nonexistence of the
presumed fact. [FN61 ~ 90.304, Fla.Stat. (1991);
Department of Agriculture & Consumer Servs. v.
Bonanno, 568 So.2d 24, 31-32 (Fla.1990); Black's
Law Dictionary 1349 (4th ed. 1968).
should not be dismissea,. denied,
disregarded, or OtherWise adversely
affected on account of such violation." 5
U.S.C.A. ~ 557(d)(1)(C), (D).
Ex parte lobbying of an administrative body aCling
quasi-judicially denies the parties a fair, open, and
impartial hearing. Suburban Medical Center v.
Olothe Community Hasp., 226 Kan. 320, 597 P.2d
654 (1979). Adherence to procedures which insure
fairness "is essential not only to the legal validity of
the administrative regulation, but also to the
maintenance of public confidence in the value and
soundness of this important governmental process."
Jd. 597 P.2d at 662 (citing 2 Am.Jur.2d
Administrative Law ~ 351). The constitutional
compulsions which led to the establishment of rules
regarding the disqualification of judges apply with
equal force to every tribunal exercising judicial or
quasi-judicial functions. 1 AmJur.2d
Administrative Law ~ 64, at 860 (1962); City oj
Tallahassee v. Florida Pub. Servo Comm'n, 441
So.2d 620 (Fla.1983) (standard used in
disqualifying agency head is same standard used in
disqualifying judge). See also Rogers v. Friedman,
438 F.Supp. 428 (E.D.Tex. I 977) (rule as to
disqualification of judges is same for administrative
agencies as it is for courts) (citing K. Davis,
Administrative Law ~ 12.04, at 250 (1972)). Riller
v. Board of Comm'rs of Adams County, 96 Wash.2d
503,637 P.2d 940 (1981) (same).
589 So.2d 1337, 16 Fla. L. Weekly 02059, 17 Fla.
L. Weekly 026
END OF DOCUMENT
FN6. PATCO v. Federal Labor Relations
Authority, 685 F.2d 547 (D.C.Cir.1982),
relied on by Judge Nesbitt, supports this
view. There the court was construing
section 557(dXI) of the Administrative
Procedure . Act, governing ex parte
communications. The Act provides, in
subsection (C), that a member of the body
involved in the decisional process who
receives any prohibited communication
shall place the contents of the
communication on public record.
Subsection (0) states that where the
communication was knowingly made by a
party in violation of this subsection, the
party may be required "to show cause why
his c)ainl or interest in the proceeding
02005 Thomson/Wesl. No Claim to Orig. U.S. GoV!. Works.
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ORDINANCE NO. 2005- 07
AN ORDINANCE OF THE CITY OF A VENTURA,
FLORIDA (THE "CITY"), PROVIDING FOR IMPOSITION
OF A MORATORIUM ON ISSUANCE OF DEVELOPMENT
ORDERS AND DEVELOPMENT PERMITS WITHIN THE
CITY CONCERNING DEVELOPMENT WHICH IS
PROPOSED ON PROPERTY LOCATED EAST. OF
BISCAYNE BOULEVARD WITHIN ANY RESIDENTIAL
OR COMMERCIAL'ZONING DISTRICTS OF THE CITY;
PROVIDING FOR W AlVER, VESTED RIGHTS, APPEALS,
EXHAUSTION OF ADMINISTRATIVE REMEDIES,
APPLICABILITY, SEVERABILITY; ,AND PROVIDING
FOR AN EFFECTIVE DATE.
"
WHEREAS, the City Commission is presently working through its consultants and staff
on the study and preparation of an Evaluation and Appraisal Report (the "EAR") for the City's
Comprehensive Plan which, upon implementation, when coupied with any necessary
amendments to the City's Comprehensive Plan and Land Development Regulations ("LDR's"),
shall serve to further guide' land use and development, so that the public health, welfare and
safety is protected and the aesthetic and visual qualities of the City are further enhanced and are
protected from impairment; and
WHEREAS, the City has previously identified the following major issues that will be
addressed during the EAR process:
. Development and Redevelopment
. Housing
. Emergency Management
. Transportation
. Intergovernmental CoordinatioI,l .
. Quality of Life; and
"
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WHEREAS, during the moratorium provided for in this Ordinance, the City shall focus on
the Study and formulation of remedial measures related to the following areas which need to be
addressed during the EAR proCess:
1. Traffic conclirrency;
2. The Town Center land use designation;
3. Redevelopment guidelines;
4. Building height;
S. Emergency management; and
WHEREAS, an imp'ortant element of the City's growth management strategy concerns
the necessity to be prepared to handle the substantial likelihood of an emerging trend for
extensive redevelopment activities arising within the City; and
WHEREAS; the City Commission desires to insure that during the pendency of the
necessary study activity, presently underway, for the fonnulation and implementation of the
EAR and the remedial measures referenced herein, that additional development' orders and
development pennits are not issued in the City for any development within the scope of the
moratorium which is described herein, so that once the EAR and any resulting Comprehensive
WHEREAS, the City Commission has reviewed the moratorium regulations set forth in
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this Ordinance. and has detennined that such moratorium regulations are consistent with the
applicable provisions ofthe Comprehensive Plan of the City; and
WHEREAS, in enacting the moratorium regulations provided for herein, the City
Commission has been guided by the advice of the City Attorney and City Manager as set forth in
the City Attomey's Memorandum of April 8,2005 entitled "Potential Moratorium".
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF A VENTURA, FLORIDA, AS FOLLOWS:
Section 1.
Recitals Adooted. That each of the above stated recitals is hereby
adopted and coniinned.
Section 2. Moratorium Imoosed: Aoolicabilitv
A. That during the time that this Ordinance is in effect, as specified in Section 7
below, there shall be a moratorium upon the issuance of Developrnent Orders and Development
Permits, as those terms are defmed in Section 163.3164, Florida Statutes, (collectively
"Development Orders") concerning development on any property in the City which is located
east of Biscayne Boulevard in any areas of that portion of the City which are presently zoned
residential or commercial. For purposes of this Ordinance, the teOO "zoned residential", as used
herein, includes all of those. residential zoning districts which are listed in Section 31-143 of the
City Code. For purposes of this Ordinance, the tenn "zoned commercial", as used herein,
includes all of those zoning districts which are listed in Section 31-144 and Section 31-145 of the
City Code.
B. That notwithstanding anything to the contrary above, this moratorhnn shall not
apply to:
1. any public purpose project which is required by any govemmententity; and .
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2. any office buildings of a height which does not exceed ten (10) stories; and
3. any development f~ which a building pennit or any required site plan approval ,
has been issued prior to the imposition of this moratorium; and '
4. any development which is protected,from a change in municipal ordinances to the
extent provided by Section 163.3233, Florida Statutes, for those statutory
development agreements which have been previously entered into; and
5. the construction, renovation or improvement of (i) individual single family
homes; or (ii) retail or office space within the confmes of existing buildings; or
(ill) non-occupiable structures, including signs, cable television or
telecommunication facilities; and
6. work for the decoration of the exterior of an existing structure or for the
improvement of the interior of existing dwelling units; and
7. improvements authorized by administratively approved amendments to site plans
referenced in paragraph (3) above, so long as said improvements do not increase
the intensity or density of development or adversely impact traffic conditions; and '
8. 'community facilities listed in Sec.31-147(a)(I) of the City Code which constitute
a permitted or conditional use in the proposed location; and
9. a new anchor tenant and ancillary supportive retail space at an existing regional
mall, not to 'exceed an additional 225,000 square feet, provided that City
recommended and mutually agreed upon traffic flow entrance modifications on
Biscayne Boulevard are explored and implemented; and
10, the construction, renovation or improvement ofrecreational facilities, restaurants,
lounges, clubhouses or health and fitness spas, which constitute lawful accessory
uses designed to serve existing multi-family buildings; and
11. the reconstruction of marinas and dry dock storage facilities on the condition that,
upon the issuance of a building permit for such reconstruction, any and aU rights
to develop such property forresideritial use shaU terminate pursuant to a
recordable covenant which is accepted by the City Manager.
Section 3. Waivers. That the City Commission, after a public hearing held pursuant to
City Code Section 31-71 ,and 34-31, et. seq., may grant a waiver to the moratorium provided
above and authorize the issuance of Development Orders for a specific building, where the City ,
Commission determines that based upon substantial competent evidence, the specific use or
4
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activity requested by the waiver application will not detrimentally affect the preparation and
implementation of the Growth Management Regulations, will be compatible with surrounding
land uses, and will. not impair the public health, safety or welfare.
Section 4. Vested Ril!hts.
(A) . That nothing in this ordinance shall be construed or applied to abrogate the vested
right of a property oWIier to complete development ~here the property owner demonstrates each
of the following:
(1) A governmental act of development approval was obtained prior to the
effective date of this Ordinance; and
(2) Upon which the property owner has detrimentally relied, in good faith, by
making such a substantial change in position or incurring such extensive obligations and
expenses; and
(3) That it would be highly inequitable to deny the property ()wner the right to
complete the development.
(B) That, except as provided by paragraph (C) below, any property owner claiming to
have vested rights under this Section 4 must file an application with the City Manager for a .
. vested rights detennination within 30 days after the effective- date. of this Ordinance. The
. application shall be accompanied by a fee of $1,500.00 and contain a sworn statement as to the
basis upon .which the vested rights are asserted, together with documentation required by the City
Manager and other documentary evidence supporting the claim. The City Manager shall review
the application and based upon the evidence submitteo.'Shall make a .detennination as to whether
the property owner has .established vested tights. The City Manager's decision shall be subject to
appeal, by only the applicant for a vested rights determination, to the City Commission by notice
5
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of appeal filed with .the City Manager within ten (10) days after the City Manager's written
decision. In the event of a timely appeal, the City Commission shall hold a public hearing on the
appeal pursuant to City Code Section 31-71 and City Code Section 34~31. et. seq., and~~ased
upon the evidence submitted shall make a detemunation as to whether or not the property owner
has established vested rights. To the extent that a property owner demonstrates vested rights, the
moratoriwn sh811 not be applied.
(C) That any property owner claiming vested rights under this Section 4 by virtue of a
Vested ~ghts Determination Agreement with the City which was issued pursuant to City Code
Section 31-3(b). shall not be subject to this moratoriwn and shall be authorized to apply for
Developmc:nt Orders in'accordance with the Vested Rights Determination Agreement, by mitig a
copy of the Vested Rights Determination Agreement with the City Manager, accompanied by a
letter which references this paragraph (C), within thirty (30) days after the effective date of this
Ordinance.
Section 5. A lmeals. 1bat appeals from final decisions by the Commission under '
Section 3 or ~ection 4 of this Ordinance shall be by. the filing of a Petition for Certiorari in the
Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County in accordance with '
the Florida Rules of Appellate Procedure for the review of the quasi.judicial rulings of municipal
that this Ordinance as applied constitutes or would constitute. a temporary or permanent taking of
private property or an abrogation of vested rights may pursue such claim in court unless he or
she has first exhausted the administrative remedies provided in this Ordinance.
Section, 7. Term. That the moratoriwn imposed by this Ordinance is temporary and
6
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shall be effective for a period of one hundred eighty (180) days from adoption hereof, unless
dissolved earlier by the City Commission. Further, the moratorium shall automatically dIssolve
upon the adoption of the Growth Management Regulations, the fonnulation and adoption of
which shall be expeditiously pursued. The duration of the moratorium may be !easonably
extended, if necessary, for up to an additional sixty (60) day period by Resolution of the City
Commission.
Section 8.. Effective Date. That this Ordinance shall be effective immediately upon
adoption on second reading.
The foregoing Ordinance was offered by Commissioner Joel who moved its adoption on
tirst reading. This motion was seconded by Vice Mayor Auerbach and upon being put to a vote,
the vote was as follows:
Commissioner Bob Diamond YES
Commissioner Harry Holzberg YES
Commissioner Billy Joel YES
Commissioner Michael Stern YES
Commissioner Luz Urbaez Weinberg YES
Vice Mayor Zev Auerbach YES
Mayor Susan Gottlieb YES
The foregoi:1g Ordinance was offered by Commissioner BohberR
who
. moved its adoption on second reading. This motion was seconded by Comniissioner
Diamoud
and upon being put to a vote, the vote was as follows:
Commissioner Bob Diamond YES
Commissioner Harry Holzberg YES
Commissioner Billy Joel YES
Commissioner Michael Stern . YES
Commissioner Luz Urbaez Weinberg YES
Vice Mayor Zev Auerbach YES
Mayor Susan Gottlieb YES
7
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PASSED AND ADOPTED on first reading this 3rd day of May, 2005.
PASSED AND ADOPTED on second reading'this 7th day of June, 2005.
,iM~/ Jka~
SusaO Gottlieb, Mayor
APPROVED AS TO FORM AND LEGAL SUFFICIENCY
FOR THE USE AND RELIANCE OF THE CITY ONLY:
~~,V~
CITY ATIORNEY
F:\300\32800I\Ordinancc:s\Proposed Building Moralorium on D~clopmcnt Orders 2.9.0S.doc
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BILZIN SUMBERG BAENA PRICE S. AXELROD LLP
~ PARTNERSHIP or PROf'ESS10NA\. ASSOCIJ-TIONS
2.00 SOUTH BIS~YNE: BOULEVARD. SUITE. 2.$00 . MiAMI. FLORIDA 33131-5340
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E"MAlL: IN...OOIIUlH.COM . WWW.BILZIH.CDM
MIAMI' T"L\Jo.HMSEE
. $1..1."11.1"",,,1..4.
DIn" Drab JD5/JS/I-2374
DIn" Par: 30SlJ2IU .
S-fl1l1: prf...tii'lllnDII,eDln
~une 8, 2005
Bric Soroka, City Manager
. CityofAventura
Goveroment center
19200 W. Country Club Drive
AventuIa, Florida 33180
R,e: Vested lOghts Subrnittal- Lincollt poi:nte
." Dear Mr. Soroka:
VIA HAND DEL1VE.RY
Please find enclosed three copies of our vested rights submittal for the Lincoln Pointe
property.
please advisc us at your earliest convenienCc regarding any filing fee that may be
associated with tbis submittal.
Respectfully yourS,
%
SBPII'RG/eo
Enclosure
MIAMI 896848.\ 7592420873
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(D. Co~
'Ir/or 11:'3/"'''''''_
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Sta.l., B. Pria, P.A-
D/roct Dial: 30Sl3SIJ..2374
Dlroct Fax, 30S/3204
E-mail: .pricd$bUd.l.c~..~.
June 7, 2005
Eric Soroka, City Manager
City of Aventura
Government Center
19200 W. Country Club Drive
Aventura, Florida 33180
Re: Vested Rights Submittal,... Lincoln Pointe
Dear Mr. Manager:
.
This firm represents the owner ("Applicant") of the property known as Lincoln Pointe
("Property") in connection with a pending appUcation for administrative site pl~ approval
("Application"). Pursuant"to Section 4 ("Vested Rights") of the City's recently enacted
moratorium Ordinance No. 2005- ("Ordinance"), Applicant respectfully submits this
application for a vested rights determination. In the alteniative, Applicant requests a waiver
pursuant to the provisions of Section 3 of the Ordinance.
. Section 4 of the Ordinance in effect incorporates the well-established legal doctrine of
equitable estoppe1.1 Under Florida law a property owner can .demDnstrate that the government is
equitably estopped from denying those rights where a property Dwner has (1) relied in good
faith; (2) upon some act or omission of government; and (3) has made such a substantial change
in position or has. incurred' such extensive obligations. that it would be highly inequitable and
unjust to destroy the property owner's rightS.. Hollywood Beach Hotel Co. v. City ofHollyWooa"
Beach,329 So. 2d 10, 15-16 (Fla. 1976).
We respectfully submit that each and every element of the doctrine of equitable estoppel
. is applicable to the ApplicatiDn and that the subject application fDr a vested rights determination
should be approved. It is further submitted that the City has .mtentionally delayed the
administrative approval of the Application and that it would be highly inequitable and unjust to
permit the City to benefit from such inappropriate activities.
A. The.Property and Proposed Redevelopment
. . ' The Doctrine of Equitable Estoppel has ~ different legal standard than a vested rights determination. The City has
elected to utilize the equitable estoppel standard.
MlAMI 887170.2 7592420873
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Eric Soroka, City Manager
June 7, 2005 .
Page 2
The Lincoln Pointe Property (the "Property") conSists of approximately 8.77 +/- acres
located at 17900 N.W. 31st Court in the City of Aventura. The Property is zoned ~4 and is
designated Medium-High Density in the City's Comprehensive Plan. . The zoning and land USe
designationS authorize development of the Property af up to 60 dwelling units per acre, and
therefDre, based on the size of the site, would permit development of 526 residential dwelling.
units. Further, the RMF4 zoning district allows development of up to 40 stories and 400 feet.
The proposed redevelopment does not require any variances, the Application meets the City's
Code in. all relevant respects, and the legal and factual .circumstances satisfy the criteria of
Section 4(.A) of City ordinance No. 2005-
B.. History of Property.
The Property is located a~ the southern portion of Admiral's Port to the west of Williams
Island. The Property represents Tract D of Admiral's Port; The Property was approved for
development in 1968 along with Tracts C and F ()f Admiral's Port,. the latter tracts being
generally known as Biscayne Cove.. The Property was .located within the jurisdictional
boundaries pf Unincorporated Dade County at that time and was zoned RU-4A in accordance
with the provisions of the Code of Metropolitan Dade .colinty? Lincoln pointe was constructed
in 1991..
Lincoln Pointe was developed pursuant to a zoning apprDval granted in 1968 under
Resolution ND. Z-267-68.3 Resolution No. Z-267-68 rezoned a substantial portion of what. now
comprises the City of Aventura. This resolution covered tfroperties east of Biscayne BouleVard
from Northeast 163rd Street on the south, to Northeast 215 Street o~ the north. . .. .
Under the RU-4A zoning district, actual density was permitted at up to 67 units per acre .
based on the square fDotage of the proposed condominiums. Accordingly, under the prior Dade
CDunty Ccide, the Property was approved to be developed. with 659 units. .
.c.. Property owner's good faith reliance on City's acts and .omissions, and
substantial monetary expenditures incurred as a result thereof.
As the City is aware, beginning in March and April, 2004, the Applicant approached the
City regarding the potential redevelopment of the Property. At that time, the City issued an April
7,2004, letter, attached hereto as Exhibit A, advising that the Property could be redeveloped in
accordance with City requirements at a density of 60 units per acre for a total Df 526 units.
2 The RU-4A zoning ordinance was adopted in 1957. S~e Dade County Ordinance No. 57-19. . .
3 As discussed at greater lengtb in ParagraphD. said zoning resolution approved a series of private roads, driveways
and accessways. . .
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Eric Soroka, City Manager
June 7, 2005.
Page 3
In reliance on the zoning of the Property and the City's letter, in August 2004; the
. . 4' . '
Applicant obtained financing, acquired the Property for $41,000,000.00 and embarked on the
preparatJ9n of the site plan. Accompanied by counsel, Applicant then met with the City on
numerous occasions and presented various draft site plans for the City's review. Ultimately, as' a
, result of those pre-filing meetings and discussiDns, our office filed a fonnalApplication for Site'
Plan Approval with the City, on December 14, 2004. Thereafter, after meeting again on
numerous occasions with City staff betwe_en December of 2004 and mid-February of 2005,
Applicant, through its architects, modified the proposed plans. Our office submitted a
Supplemental Letter of Intent on February 16, 200~.
.
In preparing the Application and the requested modifications to the Application, '
Applicant necessarily expended substantial financial resources and likewise incurred substantial
finaill;iallosses. For example, among other expenditUres, our, client obtained surveys and site
plans, hired architects, engineers, surveyors, and other professionals, and paid the City's filing
fee.s These reliance-expenditures alone, set forth in Exhibit C, cDnstitute a'monetary outlay of
approximately $1,630,299.22. MoreDver, in reliance upon the City's acts and representations
Applicant began vacating (i.e., not renewing viable leases) units in.anticipation Dfthe site plan
application approval and eventual redevelopment of the Property. This activity by itself has
caused Applicant to incur approximately S868,126 in vacancy losses - See Exhibit D, attached
hereto. Further, the City's continued acts of bad faith and unreasonable delays with regard to the
processing of the Application have increased the Applicant's financial expenditures and losses.
D. City's acts, omissions, and unreasonable delays
-'
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· See Affidavits of James M Cauley, Jacques Oaudio Stivelman, and Gilbert Benhamou, which conc1usiv~ly
establish that each relied, in part, upon the City's April 7 , 2004, correspondence for pUIpOscs of evaluating whether
the redevelopment of the Lincoln Pointe Property constituted' a viable economic decision.
S Exhibit C, attached !lereto, sets forth pertinent exp~diturcs which include, among others: (i) Sieger Suarcz
. Architectural, 9/23/04 _ 05/0212005 at approximately S3I,556.64; (ii) Architectural Alliance Landscape Fcc,
11/0512004 & 12/14/2004 at approximately S10,023.03; (iii) hiterior Design Fcc, 11/05/2004 'at SIO,OOO.OO; (iv)
Survey Fcc, 9130/2004 & 5/01/2005 at approximately S9,953.80; (v) Fortin Leavy, Skiles, 1nc. Surveying,
11/10/2004 _ 12/09/2004 . at approximately S2,076.31; (vi) Traffic Engineer, 05/01/2005 at approximately
$4,202.05; (vii) Property Inspections, 9130/2004 & 11/05/2004 at S2,OOO:00; (viii) Other Consultants Fees;
09/08/2004 -' 11/05/2004 at approximately $26, 831.81; (ix) Patriot Surveying and Mapping, 10/11/2004 &
02/01/2005 at, approximately 6,980.00; (x) City of Aventura Application Fcc, 12/14/2004 at $3,377.00; (x) Legal
Fees, 04/2212004 _ 03/1512005 at approximately $91, 794.13; (xi) GFA International Asbestos Testing, 10131/2004,
at $1,400.00; and, (xii) Lender Interest, 09130/2004 - 04130/2005 at approximately SI,430,104.45. Approximate
Total ~ Sl,630;299.22
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Eric Soroka, City Manager
Jlll1e 7, 2005
Page 4
The City is acting, and has been acting, in bad faith manufacturing reasons to delay our
client's proposed project.6 For instance, in late January or early February of 2005, the City
advised for the first time (regarding an issue that was never raised during prior meetings with the
City when the original revisions of the site plan were shown to the City for review) that the
Property's entrance drive must conform to current City stimdards in order to issue site plan
approval on the property. This is despite the fact that the entrance drive is a priva~e driveway, it
is not a public road, it is owned by unrelated private parties, it is not a part of the application,
and it is a previously platted, separate grandfathered parcel.7. In addition, subsequent to' our
office's February 16, 2005, Supplemental Letter of Intent submittal, tl)e City advised that the
Property.is subject tD "zoning in progress" as it relates to parking garages, and, therefore, the.
app1ication could not be processed. Nearly a mon~ and halflater, after contipued delay, the City
receded from its assertion regarding parking garages in an April 14, 2005, letter, attached hereto.
as Exhibit F. Finally, our repeated requests to obtain copies of the City's police and traffic
review (requiTed for our client's application to proceed) were not made available until mid-May,
2005.8 .We are not aware of any other project that was not furnished a timely response from the
City's very capable PDlice Department.
In addition to the foregoing, the City has now sought to impose an additional "zoning in
progress" . as to all redevelopment plans in the City. We have previously filed a letter of
objection with the City (attached hereto as Exhibit H) asserting that said attempt to impose
"zoning in progress" violates the law and fails to give any ascertainable standards on which a
reasonable person can make judgments or base his or her actions. Said attempt at "zoning in.
progress" creates a de facto moratorium that is not authorized by law and has not been properly
adopted by the City, thereby violating Constitutional principles of Due Process.
E. Conclusion
. See corresp~dence from oUr office to the City, attached hereto as Exhibit E, which summarizes the City's
numerous attempts to delay approval of our client's site plan application..
7 Pursuant to Dade County Zoning Resolution Z-267-68 adopted on October 17, 1968, all streets and accessways(all
which were private in ownership) were approved, subject to recordable agreement providing for permanent and safe
. access for pedestrian and vehicular traffic witbil! the development. This recordable agreement bas governed the .
development of all the lands now known as Williams Island, Atlas Terminal, .Lincoln Pointe, and other existing
developments, covered by the 1968 Resolution. In fact, the 1968 Zoning Resolution specifically creates approval of
. all private roads within the development including the subject accessway. As such, said approval dearly.falls within .
the defmition of a non-conforming use under Article :xn of the City's Land Dcvelopincnt Regulations. Therefore,
the private accessway may be continued as provided by Sec. 33-271 of the City's Land Development Regulations.
I We note that when the traffic review (attached hereto as Exhibit G) was finally made available, it demonstrated .
that based on the "traffic-related impacts associated with developmeilt of 526 condominium units" on the Property,
our elienes "conservative study... shows the traffic signal studied currently operates at Level of Service 'C and is
expected to continue to operate within these parameters upon buildout of the Lincoln Pointe redevelopment."
MIAMI 887170.2 7592420873
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Eric Soroka, City Manager
June 7,2005' .
Page 5
In Town "of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975),
the property owner relied on the existing zoning classification in acquiring land and preparing a
development plan: The prDperty owner had expended $310,000 for land acquisition and $69,000
in architectural fees, interest, taxes, sewer permits and development costs when it first received
notice that the Town was contemplating a change in zoning. The court held that the Town was
equitably estopped from denying the property owner its right to use its land as it intended. The '
court held that the prDperty owner's reliance on the existing zoning was justified,
notwithstanding the fact that the property owner had not obtained abuilding permit, nor had
physical changes been made to the land.' The court rejected the Town's argument that the
property owner's reliance was not justified because there was "zoning in progress." To the
contrary, th,e court found that the property owner had relied in good faith on' the existing zoning
and incurred SUbstantial expenditures before the Town gave notice that it was cDntemplating
changes. "
Similarly,' in this case, the Applicant relied in good faith on the existing zoning 2nd the .
City's letter of April 7, 2004. Applicant acquired the 'Property in August, 2004, and inCllITed
substantial expenditures in the ensuing months. The City did nDt initiate its various attempts to
invoke, "zoning' in progres.s" or Dtherwise thwart the development process until after the
Applicant submitted the Application. On the basis of the Imperial Homes case and other Florida
precedents, therefore, Applicant is entitled to a determination of ve'~ted rights and the City is
equitably estopped to deny those rights. .
.
Accordingly, ,we respectfully suggest that the doctrine of equitable estoppel clearly,
provides that the Application is not. subject to the subsequently enacted moratorium, that
Applicant is entitled to a determination of vested rights and that the Application should be
granted.
SBPfIRG/mp
Enclosure
.
MIAMI 8871 70.27592420873
Respectfully yours,
Stanley B. Price
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.. C' f ..
lty 0
'Aventura
","
(, "
Government Center'
19200 Wut Country Club Drive
Aventura, BDrida 33180 '
..
)EFFUY M. Ptuow
. MuOll
Via Facsimile (305) 351-2206 and ReQular U.S. Mail
CololMlSSlONEIlS
'b.v AiJ~CH
JAY lL B<sxIN
KDl COH...
BoB nv....OHt
HA....Y HOIZBnc
MANNY Ot.ClSSlM>
April 7. 2004
lIAr: Brian Adler
Attorney at law
BilzinSumberg Dunn Price & Axelrod LLP
2500 First Union Financial Center
Miami, Florida 33131-2336
Re: Lincoln Pointe Apartments
17900 NE 31 Court, Aventura
. Folio Number 28-2210-050-0020
:EJJC: M. SolO",
em MANAGE!
,
..
Dear Sir:
Further to my letter of March 11, 2004 addressed to Mr. Claudio Stivelman and
your letter in response dated March 31, 2004. this is to advise that I have
reviewed your letter and its attachments with the City Attorney. Based on the
research of County records that you have presented, it appears that the Biscayne
, Cove development on Tracts C and F of the Plat of Admiral's Point Section One'
did not use any density from the Lincoln Point development site on Tract F of that
plat.
Redeveiopment of the.L1ncoln Pointe property would be subject "to the City's
land Development Regulations. The property is located in the RMF4' zoning ,
district which allows a maximum of 60 dwelling units per acre. Based on the lot
area of 8.769 acres in the Miami-Dade Property Appraiser's reCOrds, a maximum
of 526 units may be permitted. This number' of units is subject to confirmation of
the lot area by survey and opinion of title and is furtl)er subject to all si.te '
development criteria of the RMF4 zoning district and other applicable sections of
the City's land Development Regulations.
.
.....
PHONE: 305-466-8900 . FAX: 305-466-8939
www.cityofaventura.com
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Please be advised that additional use and site restrictions may be in force asa
result of Miami-Dade County or City of Aventura legislative resolutions, restrictive
covenants, platting or site plan approval conditions, .
Joanne Carr, AICP
Planning Director
c.c.: Eric M. Soroka, ICMA-CM
City Manager
David Wolpln, Esq., City Attorney
..
AFFIDAVIT OF JAMES M CAULEY, JR.
STATE OF FLORIDA
COUNTY OF BROW ARD
)
) SS:
)
Before me, the undersigned authority duly authorized to take oath in this State and
County stated above, this day personally appeared JAMES M CAULEY, JR., who'has
been first duly sworn, deposes and says: .
1. My name is JAMES M CAULEY, JR., I am over eighteen (18) years of
age and have personal knowledge of the facts contained herein.
2. I am the President of Tarragon South Development Corp. ("Tarragon").
. 3. During the Spring of 2004, Shefaor Development, LLC ("Shefaor")
provided Tarragon information relating to a potential joint venture redevelopment of the
Lincoln Pointe property located at 17900 N .E. 3151 Court, A ventura, Florida ("Property~').
4. As part of examining the jDint venture redevelopment of the Property,
Tarragon began meeting with the City of Aventura officials in May of 2004, to confirm
both the existing zoning on the Property and the details of an April 7, 2004, letter from
Ms. Joanne Carr to Mr. Brian Adler, attached as Exhibit "A". .
.
5. Tarragon relied on the City's representations regarding the letter
referenced ip. paragraph 4 and in subsequent meetings with City Staff before deciding to
invest in the Property and entering into the August 19, 2004, Shefaorffarragon LLLP,
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing with
EuroHypo AG ("Mortgage") for the Property, the Mortgage being recorded in Official
Records Book 22595 at page 4035 of the Public Records of Miami-Dade County,'
Florida. Further, Tarragon continued to rely upon the City's representationS while
preparing and revising the site plan for the redevelopment of the Property.
FURTHER AFFIANT SA YETH NA
STATE OF FLORlDA )
) SS:
COUNTY OF BROW ARD )
.
~e foregoing instrument was acknowledged before me this ~. day of'
U IUL- . 2005, JAMES MCAULEY, JR:, who is persDnally known
to me or who has produced a Florida driver's licens 1identifi ation. ~~.
SOl\RY P\.'!UC.StlJl or MilDA .
~ Carolina Cordoba . '(A
CoDUD1ssion#DD409383 Name:. -4>Lc "'f>. CD~o
T.xpIres: )!}J.. 21, 2009 C ., N ~ Q...O'" .". e- '::>
hvnd.d'l'an}Jl.atlcloo4!n&Cc.,lll.o. ommlSSlon 0.: ... 0 ==-
Notary Public, State of Florida
My Commission Expires:
, . . ~
. MIAMI 896340.1'1592420813
L
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.
~un-01-05 11 :51u Frcc-Bi Izin
305 315 6146
1-1 Z4 P. ODZ/003 F-OZO
AFFIDAVIT OF JAC UES CL 0010 STIVELMAN
STATE OF FLORIDA )
) 55:
COUNTY OF BROW ARD. )
Before me, the undersigned authority duly a homed to take oath in tlus State and
County stated above, this day petsonally appeared JA QUES CLAUDIO ~TIVELMAN,' who..
has been first duly sworn, deposes and says:
1. My name is JACQUES CLAUDIO S
of age and have personal knowledge of the facts contain
2. I am the President of Shefaor Developme t, LLC ("Shefaor").
3. During the Spring of 2004, Shefaor D elopment, LLC ("Shefaor") approached
the City of Aventura ("City") regarding the potenti redevelopment of the Lincoln Poinla
property located at 17900 N.E. 31't ColU1, A ventura, Flo . da ("Property"). .
4. . A!; pan of examining tbe potential for . viable redevelopment of the Property,
Shefaor continued meeting with the City officials thrOll out the Spring and Summer of 2004 to
con:liIm both the existing zoning on the Property and thdetails of an April 7, 2004, letter from
Ms. JDanne Carr to Mr. Brian Adler, attached as Exhibit An.
S. Ultimately, Shefaorrelied on the Ci representations regarding tbe. letter
referenced in paragrapb 4 before it entered into the Au t 19,2004, ShefaorlTarragon ULP,
Mortgage, Assigmnent of Leases and Rents, Securi Agreement and FiXture Filing: with
EuroHypo AG ("Mortgage") for the Property, the Mon ge being recorded in Official Records
Book'22595 at page 4035 of the Public Records of 'ami-Dade County, Florida. Further,
throughout 2004 and 2005, Sheiaor continued t<) rely upon the City's representations while
preparing and revising the site plan for the redevelopmen of the Property.
FURTHERAFFIANTSAYETIINAUGH .
STATE OF FLORIDA
COUNTY OF BROWARD
)
)SS:
)
JACQUES
C:::>-\~ 1:1-
efo methis-1-&YOf ~t1 e...-
n lly known.to me or who has produced
The foregoing instrument was acknowledged
. 2005, CLAUDIO STIVELMAN., who is p
a Florida driver's license as identification.
~~ IlI.ADYSOTERO
W(iif'A.''lf\ MY COMMISSION I 00118114
'" !* EXPIRES: J2nua~ IS. 2001
. --....--
MlAMJ S~6429.1 7592420873
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.lun-ONS 11:57am FrDiI-Billin
305 m 6146
T-\24 P .003/003 F-OZO
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My Commission Expires:
Notary Pu lie, State ofFloricla
\7mOlI854S\' 638634 y 1
1!Il1ll$1l:55 AM .
NlAMl 896429.1 7592420873
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AFFIDAVIT OF GILBERT BENHAMOU
c
STATE OF FLORIDA
COUNTY OF BROW ARD
)
) SS:
) .
Before me, the undersigned authority dUly authorized to take oath in this State and
County stated above, this day personally appeared GILBERT BENHAMOU, who has been first
duly sworn, deposes and says: .
1. My name is GILBERT BENHAMOU, I am over eighteen (18) years of age and.
have personal knowledge of the facts contained herein..
2. I am the CEO of Shefaor Development, LLC ("Shefaor").
3. During the Spring of 2004, Shefaor Development, LLC ("Shefaor") approached
the City of Aventura ("City") regarding the potential redevelopment of the .Lincoln Pointe
property located at 17900 N.E. 31" Court, Aventura, Florida ("Property").
4. As part of examining the potential for a viable redevelopment of the Property,
Shefaor continued meeting with the City officials throughout the Spring and Summer of 2004 to
confirm both the existing zoning on the Property and the details of an April 7, 2004, letter from
Ms. Joanne Carr to Mr. Brian Adler, attached as Exhibit "A".
~
5. Shefaor relied on the City's representations regarding the letter referenced in
paragraph 4 before it entered . into the August 19, 2004, Shefaorrrarragon LLLP, Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture Filing with EuroHypo AG
("Mortgage") for the Property, the Mortgage being recorded in Official.Records Book 22595 at
page 4035 of the Public Records of Miami-Dade County, Florida Further, throughout 2004 and
2005, Shefaor continued to rely upon the City's representations while preparing and revising the
site plan for the redevelopment of the Property.
GILBERT B
FURTIIER AFFIANT SA YETH NAUGHT.
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged b
. .2005, GILBERT BENHAMOU, who is perso
Flonda driver's license as identification.
o~ me this le day of ~
ly known to me or wh as produced a
~1)::'" . GlADYS OTERO
ft' , MY COMMISSION' DO 178114
~. . EXP1RE5:JaNl8lyI5,2007
~.,lf.l\l- _lbv-,..............
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Name:
Commis ion No.:
Notary P blic, State of Florida
My Comrilission Expires:
~ 896767.1 7592420873
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81LZIN S.UMBERG I3AENA PRICE & AXELROD LLP
A PARTNERSHIP 01" PRO'ESSIONAL ....SSOCIATIONS
-.,
200 SOUTH BISCAYNE BOULEV....RD. SUITE 2500. MIAMI, FLORIDA 33131-5340
TELEPHONE; (30S) 37"'-7&80. "'AX: (3015) 37-4-758'3
E..M....'L: IN"'-OOBILZIN.COM . WWW.BILZIN.COM
Carter N. McDowell, P.A.
Direct Dial: (305) 350-2355
DIrect FIIX: (305) 351-2239
. Em,!i/: cmcdowel1@bi/;./n.com
April 28, 2005
VIA FACSIMILE
Jqanne Carr, Planning Director
City of A ventura
19200 West Country Club Drive
4th Floor
Aventura, Florida 33180
Re: Lincoln Pointe
Dear Ms. Carr:
.
'This firm represents the OWD'?f of the Lincoln Pointe property. AB you know, oUr clients.
and the City of Aventura ("Aventura") have had ongoing discussions regarding the
redevelopment of the Lincoln Pointe site since March 2004. On April 7, 2004, the City of
Aventura issued a letter advising that the Lincoln Pointe property may be developed with up to
526 residential units. In reliance on this letter, in August 2004, our client acquired the property
for $41,OOO,OOOand embarked on the preparation Dfsite plans. .
Thereafter, our client met with City staff on numerous occasions and presented various
draft site plans for the City's review.
.
After numerous pre-filing meetings with the City, on December 14, 2004, our office filed
a formal Application for Site Plan Approval which incDrporated a proposed site plan proposing
the demDlition Df two of the four existing structures, keeping the remaining two structures and
proposing the addition of a modem new building. The total proposed density was 526 units; in
accordance with the City's April 7, 2004 letter. Our client obtained surveys, site plans, and paid
the City's filing fee. Despite the fact that the City was aware the existing residential units were
approximately 500 square feet and therefore a valid non-conforming use, we were advised by the
City that if the site was modified in any way for prDposed redevelopment, that 1) the remainder
of the site would have to comply with current City code or 2) the applicant would be required tD
seek a variance from the City Commission. Granting of such a variance woi1ld require a
hardship under the City Code, a standard that would be almost impossible. to meet. AlthDUgh our
client did not agree with the City's position regarding non-conforming uses, our client followed
the City's direction and revised the site plan to eliminate all four. of the current buildings and
proposed. a single tower meeting the City's Code requirement, the revised application presented a
variance-free site plan.
"U{.6. M1 R'7"7RnR ~ 7C;Q?.d?OR7'
.'
BIL~IN 'S~MBE~G BAENA PRIC'& AXELROO LLP
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"
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Joanne Carr, Planning Director
City of A ventura
April 28, 2005
Page 2
On February 16, 2005, our office submitted a'Supplemental Letter of Intent with the
revised plans. The revised site plan was designed with a single building and attached parking
garage in accordance with the City Code and similar to other projects that had beenapproved
under the Code. The City then advised that the site is subject to "Zoning in Progress" as it relates
to parking garages and that the parking garage must be incorporated into and no larger than the
footprint of the building. We requested clarification on this issue but were advised that it is
unclear what the City Commission intended with the parking garage and therefore the City was
unable to advise if the application would meet the intent of the City CDmmission at the time of
adoption. '
, ,
In direct response to the City's assertion that the property was subject to Zoning in
Progress as it relates to the parking garage, our client thereafter provided for a revised the site
plan to provide residential units atop the parking garage such that the entire garage waS within
the building's residential core;
,On March 7, 2005, the City conducted its development review meeting regardmg the
further revised application, and provided draft staff comments at the meeting. Comment number
one of the City's General Comment advised that the City has published notice of "ZDning in
Progress" relating to parking structures. The City further advised that until the issue was
discussed and an ordinance passed, it cannot be determined if the proposed site plan complies
with the intent of the City Commission as it relates to Zoning in Progress. Our client revised the
site plan to comply with the City's explanation of the proposed parking garage ordinance even
though ~ere was not even a draft ordinance to follow, and incorporated the garage into the '
. building envelope, yet the City staff advised that as they were not sure what the ultimate
ordinance would entail, and essentially any building with a parking structure wason hold until
the City acted on the parking garage issue. The City instituted a' de facto moratorium. The net
effect was to unduly delay the application. This is not the intent of Zoning in Progress, does not
meet the lawful criteria for an emergency moratorium and does not evidence good faith by the
City.
In response, our office obtained a copy of the audio cassette tape of the commission
wDrkshop. From the cassette tape, we discerned that the Zoning in Progress should not even
, apply to residential structures. We submitted a letter to the City detailing that in fact Zoning in
Progress related to parking garages did not apply to the residential structures, and pointing out'
that during the workshop, the City specifically advised that it only applied to the Dffice park, MO
and B2 districts. The City on April 14, 2005 issued a letter agreeing with this position and
receded from its preVious stance that the application could not be processed based on Zo$g in
Progress.
MJAi,u 877808.6 7592420873
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,',' .
, BIL~IN Sl:JMBEAG BAENA PRICE & AXELROC LLP
, .
.
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Joanne Carr, Planning Director
City of A ventura
April 28, 2005
Page 3
"
Unfortunately, this Zoning in PrDgress was just one in a series of deliberate actions by the
City to unreasonably and Unfairly delay this application. '
The City's draft develDpment review comments of March 7, 2005, also noted that neither
,the City's consultant nor the Police Department have provided comments to date., Since that
,time, we have made numerous requests for cDpies of the police and traffic review in order for our
application to proceed. We have been advised that these comments are not yet available. 'Again,
one can oniy assume'that there is a preordained attempt to delay this application until such time
as a moratorium could be imposed.
.
Further, the City advised that the entrance drive, :which is a private drive, not pait of the
application and oWned by unrelated private third parties, must be brought up to current City
standards in order to issue site plan approval on the property. This is despite the fact that the
entrance drive is a private driveway and not a public road and is previously platted separate
grand fathered parcel. The driveway issue was first raised in late January or early February, and
was never raised during prior meetings with the City when the original revisions of the site plan '
were'shown to the City for review. Our offic,e submitted three separate letters providing the
legal basis why the condition was legally invalid. We have repeatedly requested a written
opinion from the City and we have not received any fonnal notification to jJlstify the City's
position.
We have now filed an appeal of this administrative decision. It is clear from the
moratorium workshop held on April 21, 2005 that the political atmosphere is driving the City's
delay. Every effort by our clients has been met by City actions to improperly stall the appro:val
of this application despite the application being complete and ready for approval by the City.
While we assert that improvement of the adjacent private property is not a legitimate factor in
our client's approval, if the City insists the driveway must be improved to the City standards, we
,suggest that the City incorporate this as a condition of approval so that' we can s,eek further
review by the City Commission or the courts of this issue. '
We believe this is the only outstanding issue pending before the City in order to issue its
administrative site plan approval aside from the unjustifiably delayed comments from the Police
Department and traffic division. Our client should not hi: subject to a de facto moratorium by
mere delays in responses from the City's own staff, when our client has revised the site plan to
incorporate the parking garage, even though they did not have to, and when all other aspects of
, the application are complete and ready for approval. '
.
The City is acting, and has been acting, in bad faith manufacturing reasons to delay our
project as if the moratorium had already been adopted by the City of A ventura. In an attempt to
circumvent the legal requirements of an emergency moratorium, the City has now issued Ii neW
"Zoning in PrDgress" notice as to all redevelopment projects. This new "Zoning in Progress"
MIJ\MI, 877808.6 7592420813
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B,L2'N SU'MSE:RG BAE:NA PRICE & AXELROD LLP
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Joanne Cm, Planning Director
City of Aventura
April 28, 2005
Page 4
. .
. edict is defective, as a matter oflaw, in that it creates a total uncertainty as to possible actions by
the City Conunission. . No rational person cari possibly make any informed decisions as to
redevelopment proposals and is placed in the same position as if a full moratorium is in place.
The City has attempted to do indirectly which it can not do directly, create an emergency
moratorium. TIlls will not pass legal muster and should be rescinded.
Thank you for your attention-to the foregDing..
CarterN. McDowell
CNM\wp
MlAMl"877808.5 7592420873
.'
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City of '
A ventura
Government Center
19200 West Country Club Drive
, Aventura. Florida 33180'
SllSAll Garrue
MAYOR
April 14, 2005
CoMMiSsIONERS
'lEoI AuEP.aACH
Iloa DIAMoND
HA...yHOUBDO
B1Uy)oa.
Mx:w.aSYl!l>l
, Luz UUAEz WElNBDO
Mr. Brian Adler
Attorney at Law
Bilzin Sumbera Dunn Price & Axelrod LLP
, M '
" 2500 First Union Financial Center'
Miami. Florida 33131-2336
E.I\IC M. SoaolCA,lCMA-CM
CtnMANAGm
Re: Lincoln Pointe
Application for Site Plan Approval
Case File No. 04-Sp.,-05
.
Dear Brian:
Further to your letter of March 25, staff has reviewed the audio tape from the
October 21, 2004 City Commission workshop meeting' and finds that the
proposed parking structure regulation revision related to commercial zones only. '
Therefore, the zoning in progress currently in effect does not affect the residential
development proposed by your client.
Joanne Carr, AICP
Planning Director
C.C.: Eric M. Soroka, ICMA-CM, City Manager
David WoIpin, City Attorney
.
PHONE: 305-466-8900 . F^'<: 305-466-8939
..
...
(,\-"
.
.
BILZIN SUMBERG BAENA PRICE'& AXELROD LLP
"
A PARTNERSHIP 0,. PAO,.ESSIOHAL ASSOCIATIONS
200 SOUTH BISCAYNE BOULEVARD. SUIT~ 2500. MIAMI. FLORIDA 33131-!li3~
TELEPHONE:"(30&) 37....-75110 . !"'AX: (305) 374-7883
E-MAIL: INf'OOSILZIN.C.OM . wwW.SILZIH.COM
Brian S. Adler, P.A..
Direct Dial: (305) 350-2351
Direct FIIX: (305) 351-2206
Elllai/: badler@bilun.com
March 25, 2005
VIA FACSIMILE
, Joanne Carr, Planning Director
City of Aventura
19200 West Country Club Drive
4th Floor
A ventura, Florida 33180
Re: Lincoln Pointe/Application for Administrative Site Plan Approval
Dear Ms. Carr:
.
The City's position during our development 'review meeting concerning the Lincoln
Pointe proposed development was that the parking garage is subject to "zoning in progress" as it
relates to the Lincoln Pointe property. The City, under its general comments on page 3 of the
draft comments dated March 8, 2005, advised that a notice of zoning in pr9gress relating to
parking structures was published.
In reviewing the audio tape of the City of Aventura's, October 21,2004 workshop, it is
clear that the workshop only addressed parking structures in non-residential districts. Attached is
a copy of a draft ordinance that was prepared in connection with the workshDp, which Dnly
references use J:egulations in the office park and MO districts,! The City further expanded the
discussion to the B2 district, but did not expand its discussion to any of the residential or Town
Center districts. In fact, the council meinbers and City Attomey.discussed a notice of zoning in
progress as it relates to all the commercial zones, Cliff Schulman, the attorney representing the
developer of the town center, inquired how the "zoning in progress" would affect the town
center. Mr, Schulman was advised that the town center is a different zoning category. Ms. Carr
then advised that the "zoning in progress" only pertains to the B2, MO and oUice park districts.
Section 31-77(h) of the City of Aventura Land Development Regulations provides, under
subsection 3, that the "zoning in progress" commences "upon the date that nDtice of ZDning in
.
While the draft ordinance proPoses to amend the definition of building envelope, and references residential
districts, this proposed change merely highlights that a distinction is being drawn between the applicability of the
proposed ordinances to non-residential structures as opposed to residential structures as it relates to the applicability
of the proposed ordinance,
.........~ ............. . .....-- .----
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. ~,i..~ ~UMeERG BAENA ~RICA AXELROD LLP
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"
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Joanne Carr, Planning Director
City of Aventura
March 25, 2005
Page 2
progress is published in a newspaper of general circulation in the City and shall continue' in
effect for a period from the date ofnDtice until the subject change, with or without amendments,
shall have been approved or disapproved by the City Commission or for a period of three
months, whichever is sooner."
The notice of zoning in progress is only applicable to the office park, MO and the B2
districts, and therefore does not apply to the Lincoln Pointe property. Additionally, if the City
determines that the proposed zoning in progress, in fact, does apply to the' LinllOln Pointe
property, which we do not concede, the Lincoln Pointe application was filed December 14, 2004.
. The notice, which commences the effective date of the zoning in progress, was not published
until January 18, 2005. Therefore, we respectfully submit that the zoning in progress does not'
comply to the pending application by Lincoln Pointe.
Finally, should the City determine that residential structures are subject to the zoning in
progress, and that the zoning in progress in fact applies to the Lincoln Pointe proposed
development, which again we do not concede, a review of the site Plan reveals that the proposed
structure in fact conforms to the definition of building envelope as drafted in the proposed
" 'ordinance.
Thank you for your attention to the fDregoing. If you have any questions regarding the
attached, please contact me at 305-350-2351.
BSAIwp
cc: David Wolpin
Tom Brinkley
Stanley B. Price
.
MiAMI 868640. I 7592420873
"
"
, Ilal'.,i-ms 10:1\.. FIO.-lIKTEl...AWm IHe
Q54 414 1612
T-m P.DOm03 F-34i
.. '-";"~"-1:' '~.. Tinter Associates, Inc. · Transportation Enl,>ineers
. Ia.:.~
.u --. ...__
33113 w." c."m",rQ.1 lllvd.- 81t JUl' FI,l.aud<n101c. PL :1))(1.1. (9$4) 414-363)- F", (954) 414-9612' "'''''.li.Ie,....,
l.
May 11, 2005
Ms. Joanne Carr, AlCP
City of Avenlura
19200 West Counlly Club Drive,
Avenlura. F)orida 33180
RE: LINCOLN POINTE
TINTER ASSOCIATES. INC. PROJECT NO, 01-2051W
--
Dear Ms. Carr:
As requested by your office, and in accordance with our contract with Craven Thompson and
Associates. Inc.. this firm has examined a Traffic Impacl Study prepared by Transport Analysis
Professionals, Ine. In February of this Yllar. The report addresses trafliirrelated Impacts
associated with development of 526 condominium units on property currently occupied by the
2BS-unlt LIncoln Pointe rental community. The property proposed for redevelopment with this
epp6cation Is located south of Williams Island Boulevard (N.E. 183'" Street) immediately west of
N.E. 31",Court within municipal Hmils of Ilie City of Aventura. In accordance with our review the
following comments are offered:
Modified ~edevelopment Plan
.. Access to the proposed Lincoln Pointe development will, according to the sile plan, be
accompHshed through one,. two-way access location serving the on-site par\clng
garage. A circUlar ilrive with a porte cochere, a Water feature, and an addltiol'lal garage
access point proVides a secondary aC"...ess location approximately 240 feet south of the
primary garage Ingress/egress location. The elimination of multiple existing access
locations and back-out pillking along the private road shared with the Biscayne Cove
resldenlial development should serve to eliminate potential points of conflict and
provide lor a more efficient accessway. .
. The Applicant should, howaver, comment on the driveway offset shown on the site pian
atllle northern access location and the resuhlng maneuver required to enter and exit
the parking garage from the private road.
Existing Traffic Conditions
. Prior \0 analyzing the turning movement data collected in December of last year the
Applicant should adjuslthe volumes, if. necessary, to reflect peak season conditions.
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City of Aventura
May 11, 2005
Page 2 .
site Traffic
. A review 01. the trip generation methodology shows the Appflcant has provided' a
conservative analysis in determining additional traffic-related impacts associated with
the proposed development
Signalized Intersection Operation
. Prior to layering project-related traffic onto existing traffic volumes. the Applicant should
address expected project buildout of the new development, background growth. if any.
and traffIC from approved but unbulh development, If appropriate.
The Appncant has sub milled e relatively conservative stl:ldy that shows the traffic signal studied
currenUy operates at Level of Service 'C' and is expected to continue to operate within these
parameters upon build out of the Lincoln Pointe redevelopment The Applicant should, however.
address the concerns expressed above prior to issuance of site plan approval by your staff.
tn previous discussions with your staff concem has been expressed relative to thB adequacy of
N.E. 31st Court connecting the Lincoln Pointe development to Williams Island Boulevard. It Is
my understanding N.E. 31st Court south or Williams Island Boulevard Is a private road. Section
31-232 enttlled 'Subdivision Design Standards' clearly states that private local streets may only
be pennltled within the City when the design and construction oj such streets meets or exceeds
1he minimum standards and specifications as outlined within the LOR's for public streets.
. Sedion 31-232 further requires the geometric design of streets to conform to the minimum
standards established by the Manual of Un"nonn Minimum Standards for. Design, Construction.
and Maintanance for Streets and Highways, prepared by the Florida Department of
Transportation and A Policy on Design of Urban HighWays and Arterial Streets prepared by the
American Association of Street Highway and Transpor:tation Officials (MSHTO). City staff
and/or the City's civil engineering consultant should review the. site plan for conformance to
these standards Ifdeemed applicable. . ~
The above statements summarize our findings relative to the requeS\ for Site Plan approval of
the proposed redevelopmenl As always, should you have. questions regarding our review
please do not hesltale \0 contact me directly.
Very truly yours,
<:J.'3~ ~
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J. Suzanne Danielsen, P .E.
Senior Project Engineer
JSO:lmt
wa&lInllulO\02D5,....WOS1...mtK
T'mter AssociaUs, Ine. . Transportation Engineers
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BILZIN SUMBERG BAF;NA PRICF; & AXt:I.ROC LI.P
A P,a.RTHERSHIP 0,. PROf'ESSIONAL ASSOCIATIONS
zoo SOUTH BISCAYHE BOULEVARD, SUITE 2800. MIAMI. f'LORIDA 33131-5340
'TELEPHONE: (305) 37"'-7&80. FAX: (305) 3''''-7583
E-MAIL: INf'OOBIU1N.C~M . WWW.BILZIH.cOM
Caner N. McDoweU, P.A.
.Direct Dial: (305) 35IJ..2355
. Direct Fax: (305) 351-2239
EmaU: badiel@biidll.com
April ~9; 2005
Joarine 'Carr, Planning Direc;tor
. City of A ventura . .
19200 W-est Gountry Glub Driveu
. 4thFloor
, Aventura, Florida 33180
. .
. Re: Appeal of Administrative Decision
Dear Ms. Carr:
I attach our appeal of aamiIllstrative decision as it'relates to the Lincoln PDinte driveway
issue. I also attach our client's check in the amount of $650.00 representing the filing fee for 91e
appeal along with the req~isite mailing labels required with the appeal. . .
Thank you ~or .YOUT attention to the foregoing.
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B,LZIN SUM!3ERG 8AENA PRICE 0, AXELROO LLF'
. A PARTNERSHIP 0,. PROP'ESS10NAL ASSOCIATIONS
200 SOUTH BI.SCAYNE BOULEVARO. SUll'E 21500. MIAMI, r:LORIDA 33131-153....0
TI:l.EPHONE: (305) 37<4-7580 . y.-.x: (305) 3704-7583
E-M....IL: INf'OCI!IILZIN.COM . wwW.15ILZIN.COM
. Carter N. McDowell, 'P.A.
Direct Dial: (305) 350-2355
Direct Fax: (305) 351-2239
EmaU: cmedowel/@bilzin.eom
April 19, 2005
Erik Soroka, City Manager
City of A ventura
192qO West Coup,try Club Drive - 4th Floor ,
Aventura, Florida 33180 ,
Re: Appeal or Administrative Decision Regarding Requirements Reiated to
Driveway Entrance to Lincoln Pointe Property
Dear Mr. Soroka:
Please cDnsider'this our fonnal request, pursuant to Section '31-83; to .appeal the
,interpretation of the City of Aventurais Planning Director and City,Attorney con~emingthe need
to widen an existing private driYewa~ in order to redevelop the Lincoln Pointe prDperty.
This appeal" involve!, the City's purported requirement for improvement of a private
access drive leading to the 'subject prDperty. On February 7, :W05 (Exhibit A), March 2, 2005
(Exhibit B) and March 16, 2005 (Exhibit C), we submitted letters with documentation and case,
law supp~rting our contention that it is inappropriate and not. supported by the City Code fDr the
City to seek to require the applicant to widen and improve to current City standards a private,
previously platted, already existing private drive (as opposed to l! public or private street),
'especially where the drive was originally approved to service approximately 20% more units
than being sought on the Lincoln PDinte property. The dIjve,is owned by private' parties Dver
which DUr client 'has no control and no eminent domain authority, and the private drive is not a'
public street..' .' .' .
While we have not received a fonnal written response from the City of Aventura to ouI
letters, we have' been advised that a written detennination' from the City will, be forthcoming
advising our office that the City does not agree with out inteI]lretation and that ,as part of the ,
redevelopment of the Lincoln Pointe property we will be required to improve the private drive to
a 50 foot roadway. .
Not only is the subject requirement 'unsupported by the City's Code but is resUlting in
extended delay of the administrative approval of the Lincoln Pointe devl:;lopment during a time
when the City is 'seeking to enact a moratorium. Further, the result of this interpretation is to
require the application tD proceed to public hearing when it otherwise is entitled'to administrative
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'MIAMI 875031.3 7592420873
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'City of A ventura
ApriU9,2005
Page 2
approval to require redevelopment of the property to proceed 'for City Commission approval at a . .
public hearing ,when the redevelopment of the property is entitled tD administrative site plan
approval. .
As the City is aware~ beginning in March and April, 2004, the City was approached with "
the potential redevelopment of the Lincoln Pointe property. At that time, the CitY of Aventura:
issued a letter advising that the property may be redeveloped so that any remaining City
, requirements at a density of 60 units per acre fDr a total of 526 units:
. . Thereafter, our office and the develDper met several times with .the City with proposed
site plans and as a result of those meetings filed an application with the City of A ventura for
administrative site plan approval on December 14,2004. lbrough this process, we'have been
met with a series of Dbstal:Jes though the project meets the City's Code. .
. Please note that in our apPeal, we intend to rely Dn the City of Aventura CDdeSectiDns
31-171 and 31-172 regarding "driveway standards" which provides that the maximum width of
anv drivewav for multi-familv residential developments shall not exceed 36 feet in width as
opposed to .the City's purported requirement that ~ 50 foot wide right of way be provided.
Additionally, we intend to rely on Sections 31-231 and 31-232 regarding the defmitiOli of streets
vasus driveways, as well as Section 31-78, regarding 'when platting is required. It is our
contention that because there is no subdivision of land, no replat is required and the existing'
driveway is therefore .grandfathered as a non-cDnforming lot of record and that improvement of .
the private property should not be.a requirement .of an. application on adjacent private property .
o'Wlled by third parties. We therefore also intend to rely on private sections 31-271 through 31-
278. .
. Further, we intend to rely on Section 31"3(b)(5) which provides that the provision of-the
LDRs "shall not affect development fDr which a building pennit has been issued .on or before the
effective. date of the initial adoption'Dfthese LDRs...."
Because the roadway was completed and is not being sought to be altered as part of our
development, the City is without jurisdiction by its own code to require alterationS or
improvements to that property. .
Based on the foregoing, we respectfully request the City Commission reverse the
decision of the Planning'Direc~or and City Attorney that redevelopment' of the Lincoln Pointe
property will require the widening of a private road over which the applicant has.no DWriership or .
control. Such a requirement if enforced would clearly constitute an inordinate burden upon and Ii .
takjng of ~rivate property. .
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M4\M!87S03J.3 7S92420873
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81L21N SUMBE:RG BAE:NA,PRIC'E: & AXE:LROO LLP
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Erik ~oroka, City Manager
City of Aventura
April 19, 2005
Page 3,
Thank you fD~ your attention to the foregoing..
CNMIwp
.cc: JDanne Carr, City Planner
Claudio StivelmiUl
Tom Brinkley
David Wolpin, Esq:
Stanley B". Price, Esq.
. MlAMI 875031.3 7S92420873
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BILZINSUM8ERG BAENA PRIC.Ji.& AXELROD LLP .
. .
#>. ..ARTHE...SHIP, 0,. ..AorEI5SIONAL ,.Jtr.$SOCIATIO"'.
200 SOUTH 8ISCJ>,TNIt BOULItVAAD. SUITE. leoc. 'MIAMI, rLc:'RJDA 33131-&:11..0
Tt.LtPHONt: bOB) 3'.-7880. "AX: C30!1i13'....'aSl~
IE..........IL: IHFODBIUIN.CO.... . WWW.BlL2.IH.COM
Brian S. Adler, P...4.
. Direct Dial: (305) 350-2351
. Direct Fa:x: (305) 351-2206
E.mail: badlet@bU.;/J.Cflm
February 7, 2005
. ..vIA FACSIMILE
Dayid '?/ olpin, Esquire
Weiss Serota Helfman et al.
;l665 South BayshoreDrive
Suite 420 . .
Miami, Florida 33133.
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Re: Lincoln Pointe Application for AdlJlinlstrative Sire Plan' Approval.
17900N.E. 31" Coui1 (the "Prape11Jl'~ '
Dear Mr. Wolpin:
I. BACKGROU1'>'D
The above Property is currently the subject of an application for Administrative Site Plan
Approval with the City of A ventuTa. Please allow this letter to fur.ber support the. reasons
presented .00 the telephone to you and to Ms. Carr regarding why. improvement to the private'
access drive leading to the Property should not be included as a condition. to oUr client's
approval.
. n. CURRENT USES
The Property currently houses .four sep~ate nonconfonning residential buildings. The
City delenninCd that if our client seeks to redevelop any portion of the Property, all structures
and uses (including existing .par1,cing) must be 1) brought up to Code, even .if this meant
demolishing all structures on site; or 2) approved with 8 variance through the public hearlng
process; or 3) bring the existing structures into' compliance With the Code. As the City is aware,
the current existing residential. units 'consist of 500 square foot units. In preparing revised plans
fD,r its pending application for Administrative Site Plan Approval, our client has decided to seek
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MIAMI 855869.1 7592.20873
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David Wolpin, Esquire
February 7, 2005
Page 2 ,
a single building without any variances as the current units and parking do. not meet Code.1
Thus, our client is bringing nonconfornling structures and uses into compliance with the City's
'LDRs. ' "
. 'III. NON-CONFORMING LOT
The Property Ii es at the southern end of a peninsula, and itself has no direct access'to a
public road and therefore has no frontage on the public street. The PrDPei1y'S sole vehicular
access is thr!)ugh'a non-exclusive easement ingress and egress and utilities.
, .
.Artic]e XII of the City of Aventura Code, Sections 3]-271 ~ough 31-278. govern
nonconforming lots. The majority of these prc;>visions. address' nonconforming uses and
nonconforming structures. as opposed to nonconforming lots. .
The current lot is a nonconforming ]01 in that its physical chaIact~ristics do not nieet the'
requirements of the City of A ventura. Code in that the Property does not front .on a public road.
A nonconforming l21. as distinguished from a nonconforming use or structure. is a .finite parcel.
. of property. this lot was planed prior to the adoption of the Amended City's Land Development,
. Regulations. ("lORs"). Sections 31-272 through'31-277 of the Code 'governs expansion,
discontinuation, abandonment, change, repair, reconstruction, alteration, enlargement or moving
of nonconforming uses and structures, The Clty's Code distinguishes between nonconforming
uses and structures on the one hand, and nonconforming Jots on the other, in' that a property .
owner has greater control over the edifices contained on the Property but is constrained.by the
physical characteristics governing of the land itself. A properly platted lot, especially Dne like
.Linco]n Pointe \vhich is .Iand locked by other propertieS at the. south CJ:ld of a peninsula, and
which only has access through an easement, does not afford the same control to the property
owner. The property owner cannot exercise eminent domain rights similar to a .governing
m'unicipa]ity such that it can improve an adjacent private property or acquire private property
from an unwilling Seller or constraine~ by a recorded conservation easement.
The City's Code address nonconforming' lots (as opposed to uses and structures) under
,~o provisions. Section 31-271 provides:
J...ny non~onforming use, structure,' or 1.Q! which lawfully existed as of the'
effective date of these LDRs and which remains nonconforming, and any
use, structure, or 1Q! which lias become nonconforming as a result of the '
adoption of these lORs or any subsequent amendment to these LDRs may
I Our c1ien~s decision to C!'llSlIUct a single strUcture was panially based on the determination !bat r~onfiguring the
exisling stnlctur~ 10 meet tbe City's Code would provide uni.. that, while meeting the City's Code, would not
produce a marketable noO! plan at an acceptable price commanded by the current market place.
'MIAMI 855869.1 7592420873
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February 7, 2005
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~e continued or maintained only in accordance with t!te tenns of this
chapt.er. (Emphases supplied). .
Redevelopment of a platted lot with uses and structures that confDhn to the City's Code is in .
acc?rdance with the referenced chapter. .
...
Additionaliy, . Section .31-278, entitled Nonconforming Lots. of Record, governs
subdivision ofnonconfcirming lots when two or more contiguous, vaclll'lt nonconforming lots of
record are in. a single ownership. By Clarifying that it is governing lots that are llnder a single
ownership, the City, in adopting its Code,inherently recognized that a property owner only has .
control over lots or properties that are under its ownership. . .
The s~bject property is a nonconformhig lot that is the Subject of a current application.:
The entrance Wive that the City is requesting be improved as a condition to the administrative
.site plan approval is actually not a 'public roadway but private property, outside the legal
. description of the subject application and outside. the ownership Dr control of the applicant. The
subject lot is a nonconforming Jot of record that was properly' planed in 1979 as Tract D
.Admiral's Port, Section I, Plat Book 1 13,'Page.Sl.and remains a properly and legally planed'
parcel. This property is'a legal permissible Jot. lmportaDtly, as you will note from a copy of the
."attacbed plat, the Easement also 'was planed .as a separate parcel and was recorded of record.
Our client does not seek to idter .the 10t 'but to maintain the lot, (as opposed to the uses 'or
structures on the lot), in its existing condition and therefore redevelopment would comply with
.-Section 31-271 of the Code of the City of Aventura governing nonconfonning lots. Had this'
been an application to subdivide the lots; then the City possibly could assert that Section 31-232
applies. and the drive must conform to the City Code. However, a clear distinction must be
drawn ~etween I) seeking development approval on an existing properlypJaried, noncOnfonning'
. lot; and 2). the subdivision of lot. The provisions regarding. access drives.are' addressed' under
Sections 31-232 of the City Code governing subdivision oflots. Our. client is nol presenting an
application to subdivide the lot.
'.
Redevelopment o{the subject parcel should not be treated diff~ently than development
of this parcel had it been vacant. It would be potentially confiscatory for the City to take the
position that the subject parcel, if vacant, could nol be developed without Ii variance as this is a
legally existing, properly plat:ted, nonconforming lot. .
The City's request would be akin 10 requiring thePublix adjacent to Aventura Mall to
improv.~ the A ventura Mall ring road, which is owned by a separate entity, solely becailse the
Publix sile will be partially accessed from the private ring road over and across IjIl easement.
This would leave a private property owner al the whim of an adjacent propertY owner.
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MIAMI 8SS869.1 7592420173
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February 7, 2005
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IV. .CONSERVATIONEASEMENT
Additionally, not only is driveway (1) not a'part of the legally existing platted lot, (2) not
, under the control of our client, (3).not under \pe ownership of our client, but (4) is illso subject to
other regulatory governing agencies. In 1984, the :t-4iami-Dade County Department 'of
Environmental Resources Mansgement ("DERM") acquired a conservation' easement on the
private drive. The effect of the conservation easement is to limit the area within which the drive
. .access may be developed. While the County and DERM did not take title to the prop'erty Subject
to the conservation easement, the portion of the property under the conservation easement is
subject to regulatory taking su'ch that the expansion of the drive is not only outside our client~
control because of ownership reasons. but is otherwise restricted byano~er government .a~ency.. .
V.' ADDITIONAL LEGAL SUPPORT
Botb under Florida law E..'1d the national prevailing view, legal nonconforming uses' and
lots are,constitutionaJiyprotecteli vested property interest that may not be terminated unless until
lheproperty owner has evidenced the relinquishment or abandonment of. that property right for
some other Use of the property. Our client is seeking to redevelop the. Property. which is 'contrary
to the relinquishment or abandonment of property rights associated with 'the parci:1. Of particUlar
importance to the Lincoln Pointe site, is the Florida case of Lewis v. City of A1Jantic Beach. 467
So.2d 751 (Fla. I" DCA 1985). This case reviews.the fundamental constitutional principals that
mandate 'provision for la'Yfully established land uses that predate zoning regulations or in this
,case that are rendered nonconfonniog by governmental action. Though dealing. .with. a
. nonconforming use, this case is instructive for the Lincoln Pointe drive. . In Lewis. the Court
reversed the City's effort to tem:inate a 'nonconforming lounge. The City's ,ordinance was silent
00 what events would trigger tennination providing neither for intentional ab.andoniDent nor. .
specified period of disuse. The Ci.ty ~ad interpreted its own ordinance tQ require tennination of
the lounge Upon evidence that the operating tenant had attempted to sell.his liquor license and
had closed down the lounge. The Court rejected these grounds as insufficient to tenninate the
lounge Use. The tenant's unsuccessful attempt to transfer or sell the underlying liquor license to a
differenttenant in the Court's view did not signify a decision to forever forego' the lounge use nor
was cessation of the use suffici ent when the City had prevented transfer of the liquor Ii.cense by.
failing to certify the nonconfonning use as lawful. Similarly, the requirement for the
conservation easement to DER.lo,.i, on the access road to Lincoln Pointe, carmar 'be construed
. within the penumbra of our client's control in order to require a variance for the drive.
, ,
Perhaps eVen more instructive is the. case of Connor v. Chanhassen. '.81 NW,2d 789
(Minn;1957).In Connor. the zoning ordinance sought. to deny the plaintiff's the right to resume
their nonconfonning business use of the premises after partial condemnation by the st~e. The
court 'found that 'ordinance was an unreasonable police regulatiDn under state and feder2l
constitutions. Under Connor. the courts stated that if condemnatiDn serves to activate .1
MIAMI 855869.1 7592420173
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BllZIN SUMD~Il~ gAtNA ~RICl. AXELROD 'LLP
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David Wolpin, Esquire
February 7, 2005
Page 5
prohibition of a zoning. ordinance so. as to deprive the owners with the right .to. continue .the
operation of the business in their remaining portion Df the track, it would constitute an
unreasonable and unconstitutional police regulation. .:
The City's regulations provide. for property to be brought further into compliance with the.
City's .Code. by the eventual improvement .or elimination of nDnconfonnities: Our client is
seelting to remove four nonconfonning Structures on the PrDperty and replace them with a single
confonning structures including me.eling tbe City's minimum unit size.. However, the City's
proposed intelJ!retatioD of the Code require our client to conduct off site improvements OD.
property not owned, controlled or part Df itS application precludes our client from replacing'the .
current nonconfonning buildings on the site within a confonning development:. Additionally,
because there is a conservation easement across the subject drive, the City may unreasonably be
imposing an impossible condition on our client. .
VI. REQUEST
Based on the foregoing, we 1"espectfully request that the City reevaluate its p'osilion that.
our client, in order to seek administrati.ve development approval for a confonning structure on its
site, must conduct improvements on: 1) private property; 2) that is nDt the subject of the
application; 3) that is owned by an unrelated. private entity; 4). on legally existing, properly
platied parcel; and 5) that'is tbe subject of a preexisting lawfully in place conservation easement
in favor of a controlling governmental body.
While our client is willing to assist in. the improvement of the drive, it would. be .
. inequitable to include a condition that required approval of an adjacent property owner :and
possibly an impossible condition given DERM's conservation easement.
Shoul~ you have any questions regarding this request, please contact me. at (.305) 350..
. 2351.
. BSNph
CC: Joanne Carr (via facsimile) .
Tom Brinkley (via facsimile)
S~anley l;l. Price, Esq.
MIAMI 855869.1 7592(20873
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A STRIP OF UPLAND AN\) SUUH~;RGI!D UNO IN 1<ijE' NE :.{ill.hF Sii::XION 10,
TO~NSHIP 52 SOUTH, RANU~ 4l EAST, DADE COUN+,Y,'~~RlP~, BOUNDED
ON THE SOUTIleAST AND EAs'r IlY A 'LINE' TIlAT IS "5 FEE1' WATEI\WIJUl OF,
TH!,; MEAN HIGH WAn:lt l.INt: O~. '1"111:: NORTH LAG09li A'C 'WIJ..J.I/JolS'lS1.AND.
AND BOUNDl':O ON 'l'lIE NOK1'H, WI::S'f AND SOUTH II)'. THE .l"O.LLO\{ltfO .
. DESCRIIlED LIN!,;: . '!. .'
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.COMliiNCE AT Tm: NOltTHI~I':~n' CORNI::R O~' 'WE NE 1/4 OF SAID SECTION
10; THENCE RUN N 8\1" S7' 1~" E ALONG 'rKE NORTH UNE OF THE'NE 1/4
op. SAID SECTION 10 fOR ^ 01S,~NCE OF 594.22 FEET TO THE rOINT OF
INTERSt::CTlON \ll'rH "l'Ht:: ^RC IH' A CIRCULAR CURVE CONCM1E TO THe
NORTltl::AS1. THE CENn:R Ill' WHICii IlEARS N 48".43' OS" E FROM SAID
POINT OF' INTERS~:CTION; "HENC~~ RUN SOUTHEASTERLY ALONG TilE 'ARC OF
SAID CIRCULAR CURVP. CONC:AV~: 'ro 'l'IIE NORTHEAST; \{AVING A RADIUS OF
250.00 FEET. TmlOui:H A l:1':NTRAL ANGLE Of. !i' 44,'. 5?-" . fOR .At! ARC
DISTANCE OF 2~.OB 'fY.t:T:'I'II~;NCJ:: RUN.S 89' 57' l'5.~'.."'.~LONG THE'
SOUTH LINE OF TilE HORTII 18.00 )II::ET OF THE NE 1/4 .oF, SAID Sl:CTI0H
'0 FOR' ADI STANCE Ot' 7'l. 4 5 FI,I::1':. THENCE RUN'S 00" 'O,?- ,'. 4~" It F,OR.J
DISTANCE OF 63.82 n:ET TO 'rH!:: l'OINT OF lliTl:RSECT10tl, W.I"l'Il'TH1:': ARC
OF'A Cl~CULAR CURVE. CONCAVE ~O THE SOUTHWEST, THE CtN~~~ OF WHIC'
BEARS'S 17..10' 54" ~ nlOI1 SAID POINT m~'INT~ltS~CT19,H; THENC~ Nil
SOUTHEASTERLY ALONG THf: ARC O~' SAID CIRCULAR CURVE"'CONCAVE TO'TN
SO UTH\.IJ;ST, HAVING A RADIUS,OF J08.00 FEET, TllROUl1H'+ .cENTlU.L.
ANGLE OF 33' 26' 20", ~'OK AN AIlC DIST~CE'OP 179.7~" rEET TO A
POlNT OF COHl'oUNo C:IlIWATllllf. InTH TilE ARC OF A 1X'Ju:.\:U..A,a l:llRVE TO
THE lllGHT; 'rHENGl: KUN :iOUTIlI::A::'j.t:RLY ALONG T~E ~I1,C '-RF ..!lAID .'
CIRCULAR CURVE.,'O Tllr: K1GII'f HAVING ^ MOlU.S.'OF. .~~4..;1~6 'r.E:~T,
THROUGH ^ CENTRAL ^NC:l.~: O~' 32" 28' 46" FOR AN ','..B<1';iU.s:rAN~E 0.'
~06. 66 :FEET: THt:NC~: kUH S 06' S4 '.' 00" .E', " 'TJJ:I,G(U,'l'~''SP::.T1iE.ILAsT
~eSCRIBED CURV!::, FllR A Ols~rANCE OF 243;00 FEt:r..':'"tIl~Q~ iUN
. N 83. 06' 00" E rolt ^ IllS'tANC!! OF 26.0Q 'PER~ .(l'.()'!''fij~ PQ~NT OF
INTERSECTION WITH A LINr: THAT IS 26.00 F~ET!~rE~~~,~"'THE
EASTERLY BOUNDARY m" .. ADMl RAL' S POR.T SECTION' t!l,::.M::qP.RD,l~~ TO THI
PLAT THER~O.". IlgCOll.llEI> IN !'\.AT 1I00K 113 J,T ~P~,G'F::~f~r :~l1,~ 'PU~LlC
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N 83"1 06' 00" E j.OR A 0 r S'fANCE OF 34 FLl.'T MO!l>~"'9R.:L~~~'; TO"T'M: .
POINT OF INTL\(S~:CTI0N \.I1'm SAID LINE THAT IS, J 5 FE&'J': WATEHWARD OF
THE MEAN IUCH WA'l'ER 1.1In: \)f '['lit: I'lORTK LAGOON ~T \oI1~t.1AH.S',lSl.AND, .
. SAID POINT OF IN1'EH:H;C'rluN \l~:tNc.: THE POH~T OF ~\;:CINN~1'IC, OF :'filE '
HEREIN DtSCRIIlED S'fRll' O~. UI'I.AN11 AND SUIIMERCf;.D 'LANO;- 'TH~CE RUN '
S83" Q6' 00" W~"OR fI. Pls'rANCE.OF 34 }'ZET, ijORi'.OR:..L1HiSr :I'ci:Tl:IE .
POINT OF INTERSECT ION wq'H A 1,1111:: THAT IS 26 ..00 ~:F$:f~:.t.ASTE~L'l (I}' I.
1ME !:ASTERLY LINE OF SAl 0 I'I.AT OF "ADHlRA.L'!j. P.oRX,;::,SECTIO/f"11' I
THENCE RUN S 06" 54' 00"& fOR A Ot.STANCE OF'2,~.5P"-I!,~ET' W:!1'HE .
]>OlNT OF CURVATUHK 01' A CIIlCULAR CURVf: 1'0 'T.HE'RlG~;':':rHENct.~Ulf
SOUTHERLY ALONG 'fHE ^RC or SAID crRCULAR CURVf;, TO::THE: RICH':\'"
HAVING A RADIUS OF 975.48 r~g~. THROUGH A CENTRAL ANGLE OP..,
17- 46' 00", fOR AN ^RC DISTANCE OF 302.48. FEf;T: THJ:;NCE RUt!
N 19" 08' DO" W, RADIAL "0 'ritE LAS~. OESCRIIlEO CURVE" FOR A
OIS1A.'lCE OF 19.00 n;~:'r, TO 'rill! POINT 0.' INTERSECTION WITH THE AkC
OF A CIRCULAR CURVE, CON<:AVt: "0 THE NORTHWEST, TilE CEl-lTEk OF
\.'NICH BEARS N 79" 08' 00" \.I fROM SAID POINT pF I.NTE.RSECTI0tl~. SA.1D
CIRCULAR CURVE H~INC 5.00 V~~~ ~OUTHtASTERLY OF AND CONCENTRIC'
\.11TH TilE EASTERLY 1l0IJNDAI{Y O~. ,SAID PLAT OF "APHIRJ..l,.',S. PORT
SECTlON 1", TllENCl::'RIJN'SUU'l'f1\1I::STt;RLY A1.0NG THE ARC Of' SAID
CIRCULAR CURVE CONCAVE 'rl]" 'rilE NOR'rH\.IEST, KAVI~G' A' RADIUS BF
,956.48 FEET, THROUGH A C};N,\'RAL ANGLE OF 25" os' 47" 'FOil. Jdi,ARC'
DISTANCE OF 418.95 ~'I"IT, '1'I11-:NCE: \lUN N 87' 'J2l OJ'! ~ F.01l. " .'
01 STAllCR, OF I 0 FE~:'r, MOln: OR U:llS, '"1'0 TilE POINT' OF. INTERSECTION
\.11TH SAID LlNf: THAT IS 1~ }'t.:'f H....CERWARD'OY THE HEAN"HIGH'W.ATER
LINE OF THE NORTH' 1.t.l;OON AT \HL\..lAMS 1S1..AND,.',ANP"'T~E. ~NO. OJl'"T-/iE
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^ STRlP or UPLAND' AND .SUllM~RGEn LAND 40 FtE'X,.t~ \.tlP.t.~i:lli TRJ:,::NlfS
1/4 OF SECTIOtl10, 'rO\.IN!:lHll' 52 SOUTH, RANGE 42. ~.!1:i'~ P,APE,.!CQ.J.l.NTYi;
FLORIDA,. LYING 15 Y~;ET 1,lA'mR\.1ARD AND 25 "FEEor, I.MIPlolIiRtl~'Qy.:t}ur"~,':
HIGH WATER LINE OF 'l'lIE NGR'l'1l LACOON AT 1o/11.LIW:':J:~~1l;:r..Bel.Ng',:.~,':t'
MORE PARTICULARLY up-selu IlEI) AS '''OLLOWS r '. ".~O ";,: J"l.'it '': ,"!-~'_\'\': :::';'"
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COHMENCE A't THE NOIl.'I'H\.1~::;T C:URNt::1l. OF TilE NE 1/4. OF, SAIP' SECr-ION.\ ~
10, THENCE RUN N 89" 57' 15" E ALONG THE NORTH LINE'-Of. 'rIiE','SE J/4
OF SAID SE,CTlON 10 I~OR ^ I)lSTANC~ OF 594.22 Ff;1n' :to 1'~E pcui:r OF.
INTERSECTION WITH ~'II!'; AI~C Olo' A CIRCUt..All CURVE CONCAVE TO THE '
NOR'fHEAST. 'fHI:: C~:Nn:R m' \lII1CIi. llJ::ARS N 48" 43' 05" E 'FIlCH' S....ID '
POINT OF ]NTCRSECT'] ON: '!'III:NC!,; RUN SOUTljEASTERLY ALONG THt 'ARC OF
SAID CIRCULAR ClIIIV),: COIH:^VI': 'l't) 'I'IIE NORTHEAST" HAVI~aA RADIUS OJo"
"250;00 rEET. 'rIllU)Ut:H ^ C"N'I'RA1. ANGLE OF S. 44' 52~";}o"Q1t'AIf AJI,C '.'
DI~TANCt:: Olo' 25..011 Fl."",: 'I'll J-:N C I'; HUN. S a90 57':',1.$'!, W '.M..ONC~9'llt ' ;,
SOUTK LlNEOlo' 'rIm NOH:rll 1U.00 n:ET OF THE NE-l)~, OF".SA.ID'.$ECTIOIi
101~'OR A DIST^NC~: m' '1'.1.4~'lo.t::t:T; THENCE RUH S'{)0~.,G~'.4:5!'.;H~ roR A
DI~TANCEOF 63.82, Fl!:ET '1'0 'l'HE !'OINT OF IHn:R~J;CT.JQ:!I ,\oI1TI1~;r/i~"ARC.
or'lA CIRCULAR'CURVI" CONCAV~ TO 'rilE SOUTHWE&T,~:TI:IJ;.~.1:>~1iT~R:Of'~ICH
Btf.RS ~ 17" 10' 54" ~ FIlOM SAID POINT QF .INT~~S~C'I;~O~j',,"l'lrl~~~: ~l!J'I
SOUTHEASTERLY ALONll THI> Aile O~' SAI 0 CIRCUld>R:;':C)J.lI:VL~ i;i~NCh~;I?~:lf.~,,'-:f.li~
SOUTK\lEST, HAV1NGA RADIUS OF 308.00 FEE:T,: TJ:\B~~:iil:.feN;,rM~:.:;L~:
ANGLE OE 33" 26' 211", FOR AN ARC DISTAllq, 0~:.ll9i,.75~.'~kT;~9~~"'" (::
POINT OF CO/'lPOUNO CURVA1'UKt::WlTH THE ARC 6F-~,::~I,a~,j.J~:'.CV\v'~"',Tp",
THE RIGHT; THENCE HUN HOIJ'j'lIEASTERLY ALONG TllE:';~c-.::QF'~4iD.h:.~~':" ;
CIRCULAR CUIlVE '!'O THt: Il ICI!'I' HAV1NG, A RADIUS :P..F:,,~p~;';j/,i:. g~n,1t '., .' ,
" THROUGH A CLNTRAI. ANCLg Ot" :J2" 28' 46" fOil: ~.~ ARf.~ J))'.f1'fA#P~:--.Lir,!i~-:~;.
20,6.66 FEET; TIIHliCI:: KUH S 06" 54' 00" E; T;JI~E.ti:J:;:,r-t;l'.~i: ~:.::~~.~.
DE'SCRHED CURn. ~'I)R A 01 s'rANC': OF 243. 00 rE~~!!~J'::~'&llij*,: ';" ~'
N eft 3 " 06" 00" ~: fOR A 1l1S"ANC\:,: OF 50 F1~wr,', 1'.Q1\~f;PJ.\.~~g.~t;';'~f~HE.~ _;
P ,HIT OF IH'r\:':RSt:C'flON WI,!'H THt: Mr.AN H1;Gll:~":reil.~ t.!~'~r.{,"J;ti:E~p',R.TI{.~.
UlGOON 'AT ~I LLlAl1S I Sl./ltlD, SAID POINT or ..11lTE-as.&t~;~JI'.!~.f;lW~~11~".
PqlNT or BEGINNING OJo' 'I'H!,; I\EREiN OESCR1BEO::~1;p:Il~~mr.i);yj1~A~;'C ,..;
SUl>I1ERGED LAND: THENCE l.n;^NDI::Il. rWJ\THWESTERt.i1iNjOE~iiY il::/jf:1\~~~r~":~'
ALONG THI: 'MEAN lIlelt WA'rl(R I.INE OF THE NOR'l'ilXtJ~~P...:,t. "::'lJ~~t~~"',:ii
lSllND FOR A DISTANCE 1110' 5:10 U;SS FEET,.'TO'-rH~: . . '~" ';;'J1ll~ ' ,l~1
',OESCRfIlED STKII' 01" IJPLAlI.lI AND :aiBMERGEO LN{~i~i~,..~~~.~;{{I:':t~~:1~j!,,;~ '~.::f:l'.
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ALL THAT PORT] ON '1'll1m~;llll' "lIAT \.1 E5 WEs,n:~~r .QF::r.It~',~.- b1-.QW~_.*":"
DESCRIBED l.INE ' .\- ,:,!....,::', . ".:'':l:i- '~.v.-
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COI1HENCE A.'; 'l'HI:: NOHTH\lI':Wl' ,:ORNIW OF TIl!';..Nl!,),'.f" :;;:Qpl'$.jt.lP:$~91IIQ.NI,:
\0, THENCt: RUN N 8!1" .51' IS" t; ALONG THE NO.l\:411. l.I:~J:;"p'F'1.f:l,(',~E 1/'
OF SAID SECTION 10 fOR ^ D1S"ANCE OF'594'~~iJ~tt~~,n~:tEifP.~,r:Of
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NORTH-EAST, .'rH~ CI::N'I'EH O~. WIIICH llEARS'N 4~~:..:~f..:~5'~"':~ill.P..li.f~,' ., lli\',.:::j " :
POI NT! OF HITERSEC'r I ON; .Tm:HCt: IIUN SOUTHEASTERL.1.; 'ALO~~fR~~::~,Jl..9.~Q,f.t<d!'
SAlD PRCUUR CURVE CONC^Vt: '1'0 'I'll!:: NQR'fHEA,S't, '.l\AVl,~:.~~MP,HH;;f'P.f...~:: :
250.00 FEET, THROUClI ^ C~;H1'1lA1. ANGl.E OF 5- '44 T' '5:? ';PO~;'JF,;R~r',~-:::
OISTA;NCE OF 25.08 fEE"; .'I'Ht:NCE HU1i S, .89- 57~', 1~",- W..~~~G<'~I~~i:-,' ',;'
SOUTH LINE OF THE NOR'rK 18.00 FE~T OF ,'l'HE H~ 1Il! Q~::1{l~~ ',l.o~.'
10 J'd,ll A DISTi\:NC~ 0.' 79.',5,f~ET; "HENCE'IWN'''!i',Qll~;.O~~:. Urf!/ii. ,av.,.,}
DISTA'NCt OF' 63, 82 'rE~'1'; 'I'Ht:N(:~ RUN N '17~ 10' ,'54'. t;":!.]i.B '?~tIlJ,!lC~ '~.
OF 26.00 FE:Y.t TO THE POINT Olr IN'fI::RSECTION' WITH:.:rBe~~B.t'.,ol't.?-,~;'. "Y : t"
CIRCU,UR CURVE: CONCAVE 'J'O Tar. SOUTHWEST, THE" 'CENT~R:'a';f\llii.ct{,.,i';"'!"}
BEARS s 17. 10' 54" W ~'RI)M llAl!) POINT OF INTEP.S.ECT:tOli"J..!lIt 'J.'~.' '.
POINT OF BEGINN1NG O~. 'l'H~: IU:kEltl DeS'CRIllED LINE; TI:l,ENC~:.Ru)l ;~1'- ;:
SOUTH&ASTERL'l ALONe 'I'HI:': 'Alle OF S^10 CIRCUUR CUIW2 'GOt/.c.AVIl'!R' :rHE
SOUTH\:EST. HAVING A lIAOIIJ!l or 3:14.00 FEET,THROUCH ^ CENTRAL' ,"
ANGLE 01" 33' 26'. 20". }:'OK AN AIU: DISTANCE: OF' \94.93 'FEET TO" ".l,'
POlN! OF COHl'OUND CUllVA'I'IIH~: Wl'I'lI 'I'HI:': ARC OF A CIRCULAR CURVE'ro
THE ~IGHTl THENCE RUN SOlI'l'Ht::Asn:llLY ALONG THE .ARC.~ SAI,D, ;.t.::i',' .'
CIRCUUR CUlWE TO Tlit>: Rll:Wl' HAVING A RADIUS o..v 390.,56:.:F&t;T....;':,:, ,
THRO~GH A CENTRAL ANCI.K CH' :12' 28' 4.6" 1'01'. AN ARC OPiTANCEAQF.: ,.. ~ .
221.40 FEET; "HI::Nl:~;' KUN ~ U6" 54' (lO" E, TANGItNT TO 7ijE ~~i. "
OJ::SCRlDtD CURVE, j"OK A DUiTANCE: O~. 2.r,J.oo"n::E'l"TO THE',r.t!D'Qt:~!l'HE
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A'STRIP OF UPLAND, ANll SlJllMIWClm 'I:..ANO 30 F~ET: llf ~lPl'J!filN .l1i~~.NE :
1/4iOF SECTION 10, '\,C1WNSIlIP 52 :;OUTH,' RANGE,~t.'EA,ST,~'W.,D~ cpl,I.llIn,,:
FLORI Do'., LYINC 10 n:IIT ~A'I'l::Il~ARIl AND 20 FEE1":~DWJiRD:iO,F.' 'I'H,Et::ttEAN
HIGH WATER LINE OY 'l'lII~ NClKTII lJ\1:OON AT wn.l.,4HS'.:l~.tiN.~~,;~,E~,', ,
MORE PARTICULAltJ.Y OI:':~;CKIllt:D AS !-'OllOws: ":;~;~i '~"~~:":#""'~:t":"" '
. . . . . ',-'ft.. .~ ~..: ...."";. .. :::.. .
COHHl::NCE A'r THE NOK"J'll\.l~S'J' C:URNt:1l OF THE NE rj 4- o.}~ ~A 1 Ii ~E'CT"ION .
101 'l'HtNCE RUN N 119' 57' 15" E ALONC THE Noani:LItHt~'otr,THE HE lJ4
OF SAlO SECTION ,10 . roll ^ OlliTANCJ!: ,OP'.594.22 ~'JntT TO,T,!{Il"POINr. OF
INTEllSECT10N wI'rH THlt Me O~' A C1RCUUR CURV.E' CON~VIt'.TO 'l'!JE '
NORTHEAST, THt: CEtl'J:t:lt O~' ,wlllCH IU:ARS' N 48' 43' 'OS", E rROI1 SAID
POINT OF lNTE:RSI~(:l'LIIN: 'J'HJ!tH:~ HUH SOUTHEASTERLY ALONG, THE' ARC 010'
SAID CI RCULAR '1:IJRVt.: t:ONC:^ VI~ TO TilE NORTHI::AST, Ii.AVING A MDlUS O~.
250.00 'Ft:ET,. TIIHOUGI\ A t:~N'rIIM. ANG1.E OF 5' 44' 52" :1-'01 All AItC
DISTANCE Ot' 25.08' t'I,:t:T; TIlt-.;NCt:: HI!" s' 89., 57." :}:l" ,W,JJ.QNC THE, '
SOUl1l LINE Ot' 'filE NIlH'l'tj 1 t1.11U 1"t::e'T OF THE NE'1/4 OF, 5....10 S'ECTtON
10 :FOR A OIST",NCE Ot' 7'9.4':> VI!l!'J': THENCE RUN' S',OO', 02' '45'1 E; 'FOR A
-DISTANCE OF 63. tl2 n:t:T 'I'll '1~1Il POINT OF lNTE~~CTlojHo/1TH''J'H~ ARC
OF .A el RCULAR CURV!,; CONCA V~: 1'0. THE SOUTHWES.T, "THE ,CI:N1.ER o.r '\lHICij.,
BF.IIRS S 17. 10' 54" W .l'kOM :iAllJ POI NT OF I!'l'l.~ltSECTION': THI::N~E RUN'
SOUTliEASTl::RLY ALONG THE AIle at' SAID ClRCUUR C,UIl.V.E:'CONCAVE 'TO TH~
SOUTHWEST, l-lAVlNi'l A RADIUS at. :108.00 n:ET,.'r.J;lIiQUGll':.;'.'Cf:NTJlAl,.,
ANGLE OF ;33' 26 I :l0". FOR AN AI(C DISTANC!! OF. :;, 7!1.,~-S::.t-t:l':'1' T.u,,~ '
POINT OF COMPOUND CIJRVA'I'UJ(~: \11'1'11 THE ARC QF';'A:~,CIRjj::/.!.~ 'C-llllYf;:TO'
THE lUGHTI THENCt: \(Il~ ~IlU'\'lmAs:n:RLY ALONG THE,t~ 'Ql1,'$.AID' ::~:..
Cl)(CULAR CURVE 1'0 '1'111':. R101l'[ HAVT.NG A RAOI US' 'O~'; 36~.~,fl;; fEET. ,',
. THROUGH A Ct:NTRAI. AllCU: Ot' n. Ztl' 106" tOR AN ARC'.[llS'l'AllCE OF
, 206.66 FEET; 'rHENCI! }lUN S 06. 54! 00" E, TANG!,:j;r"'J'P"11111!. u..~'T'
D~SCRlBED CURVE;, fOR A III STANC.: at' 243. 00 FE~T.i i"f'4:'N'CE, RUN',' ,
Ii e3w 06' 00" E I'OR A Dl$ThNCE'OF 50 tEET, M08E.O)l.:',~~s, 'rQ Tli~
POINT OF INTEJ{S~;C'rlllN WI'\'II 'l'Hl!. IU:AN HIGH WATt:IlIo q,~ OF TH,f'li9,HTH"
LAGOON AT W1LL1AM~ ISI.AND: '\'IlEfll:': HEANOER,'~.9!1-rtl\.'~.s.'I;J;~y',~ ',:' ' .
NORTHERLY. NOR'J'Ht;~:;'n:Rl.Y,. I~A~i'l'Iml.)' AND so.U:J:\U:.\S'Tt::Rf;'i:~N.Q '.'fKE
,MEjr-N ,HIGH WATER I.INE Olo' ')'IlE NOH1'H l.AG09N ....T.;HILL1~-.:~SU,!lD' ,.f-OR A .
DI&'l'ANCE I>>~ 560 !-'Et-:'f.. .MIIK!,; UK l.t:SS.. TO THE'<F!-l1$.trUlA> WJ.YEi"t'fi' ~'TO
. . DU }"OU,NDING !lAY Nr THE NOH'rH I:':Nll OF SAID !l9}l.lI'~'4~,'m,.,,1;,.W,U;.L1AMS
, 1 S NO,' ANO THE 1'0 I N'l' 01-' Ilt:ln NN 1 NG OF' THlf HER'ellW~ES,llR.1JlE~',:'st.1i1 f',
.0l'1 UPLAND ANO .SUllMEIlGI:':D I.fIND; 'fKENCE CONTJJiU.&..:;'T0:"':<<~NDE!l.:.:': "
S~UTHEASTJ::IlLY ALONe '/'HI:: Mt::Atl lItell \.lA-I' Ell. , LINt'fP.(lf~,:.~plt:I-:W:l:.,!lGOO~
A~ \HLLlAMS ISLAND ~'OR A DISTANCE OF 12'30 Y'Ef:T, HQ~,1t'1'01l:t~S''TO
'I' E POINT 0)0' I N'CI~RS 1::C'l'lClN Ill'rH "H.E CENTER Ll~E OJ',~''f11lr PEOt:"S-.rR,lAlf
II lOGE TO THE ISI.^NP IN 'mE SOUTH LAGOON AI""IJILJ;I~"~St..A"e. AND
'1'~E'EN.I) OF"rHE 1I~:,Kl:':lN OI~:;CRIBE\) s'rRIP 'O."1l1~":P -Mi,!;)' :il)nM~~E;D ,
UND ' ,",.. 1, G,:1:.."..... , '
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A STRIP OF UPLAND ANI) SUIIHp.IWlm LAND 30 FJ::E'.f::1N~-IiJ.m!lI tl1 :r.\ijE 'NE' .
1 t4 OF ,SECTION 10, 'fOWNSlJl P 52 SUUTH, RANGE ',~"l:A.S'~~~J ~o~ :'CQI1Jo/T.Y ,
fLORIDA, LYING. 1 0 n:t:T WA'I'I'R\.IAl\D AND 20 n:E;T' J.htlP.\.lMl,1),.()~,~:'$llE' MEAN
HIGH I.'ATER LINE' or TII~ NlJll.'rH LAGOON AT, \.I1LLJJ.HSH.~~P;::~~1",G~':
MORE PARTICULAItLY llESCltlllt:O AS ~'OLLOWSI " :,~'i:li ",j',.:",
. .... . -... ..
. . . 1\,. . ~ :." "I.
COt'J1ENCE A'r TH~ NOll'fliWt::;'I'. COIlN~:1l OF THE HE 1/4 .Of' '!1~ID SECTIO~
10; THLNCE RUNN 119" 57' .IS" E ALONG THE NORTH LINE.';OF TH.E'NE1/4
O,F SAID SECTION 10 FOil A \l1:i'I'ANCI:: OF 594.22' FEET 'fO THE P.OINT ,0.-'
INTERSECTION. WI'I'H 'rHK AkC 0)0' A CIRCULAR CURVE CONCA.VI:: TO THE'
NORTHE:AST, "HE C:ENTl::l( 0.' \JHlI;1l III::ARS N 460 43' OS" f ~'llOH.,SAID
POINT OF INTERSt;C'!'lON; 'rlit;liCI! /lUli SOUTHEAS1.'E.I\LY' ALOIlp, THE ARC Ot"
, SAID CIRCULAH. GIIRVJo; 1;(JNC^Vt~ '1'0 'I'Ht:: NORTHEAST;' Hf..Vl"t{G' A RADtUS m'
250,00 fEET, 'j'l\kOllllll.A Ct:N'I'RAL ANGL~ OF 50 41;', ~f~' 1"011 Ab! ARC
DISTAtlCE 0\0'-25.08 l'l::t;l'; '1'111::/'01<<;1:: I{IJtl.S 89. 57':l:1":W J,LONC'1fHE'
SOUTIl LINE 01" TilE NOR'j'1l 111.00 n:J::"f OF 'l'IlE HE. 1J4QF, SAlP' llLC'ClON
10 FOR A DISTANGJo.: OF 1'J.4S n:E'l'; THENCE RUN ''5 00"'"Q.2" '45:';' E }'Oll },
. DISTANCE OF 63.112 n;t:I' 'fU 'l'll~ 1'1)1 NT Of IriTI;~;/~CTiQ~,':'\.l111l ,XHE AKr.
OF A CIRCUI..AR CURVt; I:CJNCA VI:: '1'0 TIlJ,; SOUTHW'::ST~ 'TH~' C!:NTF;R-' OF I.hue.
BURS 5 17. 10' 5/,".\.1 FROM ':lAID POll-lT OF IN'J'&RSI?CT,J:ON'; ,'.t'H1::NC~' KUt
SOUTHE"hSTE:RL'i' ALONG 'J'H~: Aile m' ~AIO CIRCUlAR '.CUJUU;',COIlCAYE TO TI\I
:lOUTHWE:ST I HAVING A ItADI us 01' :lU8.00 t'EET ,":TIlRO.l!~!i:.~' CEtqllJ,L
ANGLE Qf' 033" 2&' :lO", l'OR AI( ARC DISTANCE Of.:l79:7S'.n;ET''l'O 'A
POINT OF COMPOUND ClIHVATIJKt: '.11 TII THE ARC QY.I'A GJ.R.CULAR GU.flV~ TO
TilE lUGHT; THENCE RUN SOllTHCASn;RLY ALONG THI!: ARe"::Of. 'SAUl' ,
, CIRCULAR CURVE "0 Tlit: RH:U'f liAVlliG It. RAOIU~:l:lr'::3"6~~'~6 Ff2t~..
. THROUGH A CI::N'CIlAL ANI;U ()t' 12. :!Il' 46", FUR.AN J,.R(VOlSTA~CE, OF
.20&,~6 FEET; "Il1::NCE HUIl.S Ob" 5~' 00"' E, T~C;l::~"'TQ?..THE}14~T
OESCR1BED CURVE. t'Oll A DfSTANCI:: Of' 243.00. J:Et::Ti::Tli&.tl.cE. RPB '
N .83' 06' 00" l~ FllR ^ IH:i'fANCE'UF 50 FEET; '~RI\,,~:'!l;EfiS'i..1Q THE
POINT OF IN'l'ERS~:C'1'10N Wl'fH Till: 1~t':AN HIGH '-'/I'!II:R,.J.;.lNEfOF ''l'W;::l'/OK'fll
l..ACOON AT WILLIAMS I :;l..ANP: THl!NCt: JiEAHDElt .liPJ!rH\'l~S'f:~R1;.Y ;,~~~;~'
NORTHERL'i, NOR'Hlt:Asn;IlLY, t;M;'rI::Rl.'i AND $9.UT\j~'I)'~~~ !>l.qlW,' '1"HI::"
tlEAN HIGH WATl:iR UNt; O~' '1'llE NOK'rH LAGOON, "'T'","\JJ.J;1.iJ~ 'lS':v.~[)' FOR
DISTANCE Of" 560 '''I"E'I', HOHE Oll U:SS,' TO TIj&'tFl"U~!H:NG:I'CUl..VeRTS '1'0
DUMfOUNDING. \lAY A'r '1'IlE NUR"f\l END Of' SAID 'tlq~:rW:~N ,~T'~~lLL'I~t\
, ,ISLAIiD,'AND "H~.I~l)1tI'r Ill' 1~I':I:llmlNG OF THF.:,Ii~R~lN~:i~.sCU!l~P" -$TRIP
, 01' UPU,.NO ANll SUIIMlc:llI:~:D 'I.,J\!'I\J; l'I'Il/!NCE CONT,l,NlJg t{r :M~DE,R.~,:'~ '
SOUTfll:ASTl::RL'i AtoN!.: Tilt: Mt:j\li HIGH \lATER LINE~.{l~:,?r:ijff;JiQRTn. UCOOr:
AT WILLIAMS ISLAND I'OR ^ 1lIS'I'ANCt: OF 1230;F.:f;i':Tj;~,~:itt:'!:>P,':j.f;SS TO
'.'fHE POI NT 0.' .IN'fIl:RSI~C'l'lON \llTH THE CENTElt, I.~E::Qf. !TX~1.pf,:~,E5.TRLA~
BRIDCE TO 1'HE ISI.ANIl IN 'I'll I! ~01JTtI LAGOON A~~W11."I;'IAl'IS lSD.ND, AN[
T~E ENO O}' 'l'Hl~ Hl::IU::IN Ot:SC/lII1ED STRIP OF U~~lt~~-t1:' S,\.lll.I1~Jl.t;ED
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BILZIN,SUM8ERG BAENA PRICE & AXELROD LLP
A P....RTHE-RSHIP O~.P"OF"ES510HAL ASSOCIATIONS
. ZOO SOUTH BISCAYHE. BQULE.V"'~D, ~UlTr. 2&00. MIAMI. ,.L.OAIDA. 33131-53-40
. 1ELE.pHOHE: t3C?S' :,'....'&80. P'AA: C3oe) ~,.....,S.~
E-MAIL: INrOOBILZIN.CDM . WWW.It~L%IH.COM
11rian S, Adler, P.A.
Dirw Diol: (305) 350-2351
Direa F= (305) 351-2206
Em.U: b.dl.t@bUun.CDm
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,
March 2, 2005
VIA FACSIMILE
"
David W olpin, Esquire
Weiss Serota Helfman et al,
2665 South Bayshore Drive
Suile 420 .
Miami, FJorif;1a 33133
:
Re:
Lill coIn Poinie
Improvement on Driveway on Adjacent Property
DearMr, Wolpin:
I attach for your further review a copy of the case ofCiiv National B~ 'ofMiami v.Citv
of Coral Snrin2s (475 So.2d 984 Fla, 4'" DCA 1985), We researched the attached case to
confinn it remains good law in the State of Florida,
. The attached case is instructive on two levels, First; the case stan.ds for'the propositiim .
that cenain conditions are more properly imposed during'the platting process. As noted in my' ,
prior correspondence, the property was previously planed and therefore any c<onditions ,related to
the driveway would have been properly.addressed during .approval of the plat"which is valid and
remains in effect,
, ,
, What is more instructive is the second proposition where 'the trial court' held ~vaiid a' .
condition ~equiring improvement of an adjacent roadway prior to issuance of a building pCnnit.
. Specifically, the condition requir.td: '
No building permit for construction will, be' issued until Rbyal
Palm Boulevard has been improved (widened) to a fOUT (4) lane
roadway in the area .munedialelY adjacent to this plat.'. .
'The court found that to include'such a condition without any indication as to when or if "
said portion of t?C roadway would be 4-laned was in the nature of 8: building moratorium '; "
MIAMI 862742.1 7592420873
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, 'B1~ZIN SUMBtRG BAtNA PRICE & AXELROD LLP
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David Wolpin, Esquire'
Marth 2, 2005
Page 2
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. directed to a specific parcel of land a:I1d without meeting aily of the formal requirements for sUch
moratorilll"!l, As such, the court'held the condition invalid. ,
. "
h'! the hlstant matter, the proposed condition is even more egregious as it is outside oftJ:le
ownership, or control of either the City or the applicant, and therefore; there is no indication ,when '
or if the adjacent roadway could even be expanded. '
, ,
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Based on the foregomg, we respectfully request the City' of A,ventuia not condition
improvement of the adjacent private roadway as Ii prerequisite tei administrative, site plan
approval fOT the subject property or issuance of Ii building pemrlt.
, -
Thank you for your attention to the foregoing, Should you have any questions regarding'
the attached, please contact me at (305) 350,2351,
Very truly yours,
BSAlph
~ 0u~.
Brian S, ~
cc:. . 'Eric Soroka, City Manager (via facsimile)
, Joanne Carr (via facsimile)
Tom Brinkley (via fa~sjmile)'
S'tanleyB, Price, Esq,
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, MIAMI 862742,\ 7~92420873
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475 So.2d 98-4
475 So.2d 984, 10 Fl.. L, Weekly 2169
(Cite as: 475 So.1d 984) ,
c
"
, District Court of Appeal ofFlorida,
FolD1h District.
Cl'Ji' NATIONAL BANK OF. MIAMI, as Trostee.
Pelitioner,
v,.
CI'Ji' OF coRAl. SPRlNGS, Florida; Respondent.
No, 85-678,
.Sept. 18, 1985,
Rehe~g Denied Oct. 14, 1985,
Bank, as \rustee, .sougbt cenionui and mandamus
. regarding condilions imposed by city for approval
of pial, for location of conveoience store, The
Circuit Coun, Broward COlU1ty. Linda L, Vitale, J"
npproved in part end disapproved in part city's
r~solution ,,'hich approved proposed pial subject to
three condiliom, Bank p,etitioiled for ~I of
cenioran, The District <;:oun of Appeal, Hersey,
CJ, held. that: (1) city validly imposed conditiollS"
.equiring ,en-foot buffer strip of landscaped area
along <me boundary of pia' and requiring entrances
and exits to pennil righl turn only, ind (2) ,
conditioning issuance of building penoit upon :
improvement of adjacent roadway to four'lanes was I
appropriately. strickeo by uial court. I
CenioT8l"i denied.
We" Headnotes
ill Administrative Law and Procedure ~763
ISAk763 Most Cited Cases
Scope of .eview 10 be utili:z.ed by DistriCl C<lurt of
Appeal considering order of circuit court emered on
review of administrative action is limited to'
delermination of whether circuit court affo>ded
procedural due process and applied correct law,
U,S.C.A. Const,Amend, 14,
12) Zoning and P'lanning C=>37S,]
414k375,1 Mosl Cited Cases
. (Fnerly414k37S) " .
Once a party compli~ with all legal requirements.
.,
Page 2of4
Page I
for platting, there is 'no dbaetion in goveniment
authority 10 refu.. approval of the ,plat.
)3) Zoning and Planning C=>382.Ci
414k382,6 Most Cited caStS' .
'(Formerly 4141082,1)
City validly imposed as condition of approval of
proposed pial' for convenience stare a ten"foot
buffer strip of landscaped ar~ along one bouodary
of the pial, as reas?nable' application of seelion of
city's code of o>dlnances,
14) Zoning and Planning ~382,Ci
414k382,6 Mosl.Cited Cases
(Former!)' 414k382,I)'
City's condition for approval of proposed plat for
convenience S1ore, that all entrances e,nd exits
indicated on Ibe pial would be labeled "Right Turn
Out Only," was validly based upon legal,
req!lirement that applic8nt demonstrate that there
will be safe and adequale access lo.area songht to
be planed,
IS] Z.onlng and 'J'lanning ~3S1.2
4i4k382.2 Most Cited Cases
IS) Zoning Bnd Planning ~436.1
414k436,I Most Cited Cases
(Formerly 4]4k436) ,
City's eonditlon for approval of proposed plat" for '
convenience S1ore, that no building permit for
constrUction would be issued unnl adjacent road
had been improved 10 four-lane roadway. was in
nature of building moratorium directed to specific
. pan:el of land wilhoUI meeting any of the fonnal
requirements fo> sutb moratorium, and as sueb, was
approprialely stricken by trial court, and provision
of trial court's order permining funher bearings as '
to whether the condition could preclude 12lIdoWDC:l".
from any reasonable use of .ilS p~ indefmilely
was proper detennination.
161 Administrative Law and Proc:edure ~683 .
1 SAk683 Most Cited CastS
Whether or nOl holding of circuit coun is suppontd
by subslantial compelent evidence is nOl
appropriate inquiry by DistriCl, Court of Appeal 00'
cemoM review of administrative action already
reviewed by way of eertiorari in lbe lower tribUnal;
District Court of Appeal revieWs evidence
presented to circuit court, and only when order ~ .
"
02005 ThomsonfWesl. No CI.iin to OriX, U,S, GoYl, Works,
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475 So.2d 984
475 80.2d 984,10 Fla. i" Weekly 2169
(Cite as: 475 50.2d 984) , '.
judgment bas been' entered without any competent
. evidence may District. Court. .of ,Appe2J fmd
deputure frolD essential requirements of la." on .
basia of evidence or lack ofiL
'985 Gerald L Knight of Gustafson, Stephens,
F.erris, Fonnan & Hal~ l' .A" Fort Lauderdale" for,
petitioner,
John'M, Wynn of Paul J, McDonough, P.A" CoTa1
Springs, for respondent, "
HERSEY, Chief Judlle,
, .
By petition for writ of teniomi we lIe wed to
n:view an order of the tircuit 'eoun approving in
part and disapproving in part a resolution adopted
by !espondent city wbitb approved a proposed plat
subJect to three conditions,
.on approval of a plat for a Stop-N-Go market to be
loca'ed on Royal Pabn Boulevard in Coral Springs, '
Florid., lbe city commis,ion imposed the following
conditions: . . ."
1, A ten (10) foot buffer strip O.r.d,cape area)
will be intlud';d on the plat along jts
noT1l1wenerly bouridlll)'; .
2, All entrances and exits indicated on the plat
will be labened "Right Turn Out Only":
3, No building penn!' for construction will be
Issued until Royal Pahn Boulevud bas been
unproved (widened) to a four (4) lane roadway in
the ar.a immediately adjatent to this plat. .
City National Bank of Miami soughl' ceniorari and
mandamus in the circuit coun which upheld tbe"first
IJId second cOlldi\ions IJId funh~ directed lbe city
to "delete condiiion No, 3 or provide further
hearing on said issue," The. bank th<n filed its
petition here for further review, .
[I] The scope of review to be utiU:r.ed by a district
coun nf appeal considering an order of tbe circuit
coun enlered on review'of administrative action Is
limited' \0 a determination of whether the circuit
coun afforded procedural due process IJId 'applied
lbe correct law, City of D.ufi.ld B.oclo v, Volllont,
419 So.2d 624 (Fla, I 982); ChuoM. CT1ISkd
Slon.. Inc. v, City of Miromar, 421 So.2d 684 (FlL
4th DCA .1982), No issues are raised. bued upon
failure of the circuit coUlt to afford procedural due
process; thus, the sole inquiry is whether the
.
Page ~ of4
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correct law was applied,
[2] It ia el,ementary that once a party complies widt
all legal requirements for. platting there .is no
discretion ill government authority \0, refuse
approval of the plat. In Broward COllnty v, Nart:()
R.alty, Inc., 359- So.2d 5P9 (FIa. 4th DCA I ~78).
lbe proposition was explained in the following'
language: ' .
All persons 5imilarly situated shOJlJd be able to
obtain plat approval upon meeting uniform
standarcb, Otherwise,. the <1fficial appro~ 9f a
plat application would depend upOn the whim or
caprice of the public bolly involv.d, Yokley, in
"986 his work; Law.of Subdivisions, ~ 52;states: . ,
"Thus,. while' public policy requires municipal.
control of such oevelopment; nevertheless, the
authority. of a tOwn to deny a landowner the rillht
. to develop hia propcny by re"fusing to approve the
.plat of such development i~, by natute, made to
rest upon sp.t:ijk standards if a STahll., or
imp/.m.n/ing ardlnances, Thereafter, ' the
approval or disapproval of the plat on the basis of
controlling standuds becomes an Bdministrativc
ael. "
Likewise, in Section S3 of the same work, the
author states: .
"When the natutes Bnd ordinances have been
complied with in making a plat of a subdivision,
the active tpproval by a village board bas" been
held to be ministerial, and such act may be
, enforced by a writ of mandamus,"
~
Jd. at 510 (empbasis added);
'.
The petilioner's position Is ' that all legal
requiremenu . were met inasmuch as the city
commission's additional requiremerits were not
properly promulgated standardS and .therefore wore
not legal. Respondent city points out the .xbteDce
of ccnain Standards made applicable by vh'n!e .of its
home rule powers, in addition to the .landscape
standard contail!ed io a city ordinance applicable to
condition one. S.e section 166,021, Florida
Statutes.(1983), .,
[3]{4] We hold that condition on. is valldly
imposed as 'a reasonable application of section
20-5l3 of the Code of Ordinanc~ of the. City of
Coral Sprinp, Condition two is similarly valid
based upon lbe leg.a1 requiremeilt that an appHc8Dt,
0'2005 ThomsonlWes\,No Cl.imto Orig, U.s,{ioVl, Wor1cs,
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~75 So.2d 984
~75 So.2d 98~. 10 Fla,L, Weekly 2169
(CIIt as: 475 SO,2d 984)
Page 3
demonstJ:ate thai there will be safe and ,adequate
access to l1)e area sought. to be platted. Broward
. County y, Coral Rldg, Properllu. Inc.. 408 So.2d
625 (FlL 4th net. 1981),
'.
, .
, The circuit coun held the third condition invaUd on
Ibe basis thllt
The Conn simply fmds that to. include such'.
condition on the pIal without any indication in the
retorcl as to wbcn or if said pomOll of the
roadway will be four-Ianed could preclude 1he,
IBlldoWDcr from any rcasOllable use of owner's
property indefinitely;, CITY OF CORAL
SPRlNGS accordingly .directed to delete
,condition No.3 or pTovide further bearing on said
issue. '
[5] Condilion three was Ii. the na~ of a building
moralorium directed to a specific parcel of land and
without meeting. any of the formal requirem.ems for
~cb a moratorium. As such .it . was apprOprialCly'
striclceu. The provision, of . the 'order permining
further bearings on this issue' w.. a proper
dctermi!lation, Page ii, Lines, 1 SO .Fla. 433, 7 So.2d
599 (l9~2), the court thereby granting panial reUef
by way of mandamus, . , . .
[6] Whether: or not tbe balding of the circuli court
was supponed by substantial competent evidence is
not an appropriate" i!lquiry by. this coun on' ccnionui
review of administrative action ~1rc8d)' reviewed by.
way of cemonui in the lower tribunal. We review
the evidence presented to the circuil coun and only
wben an order or judgment h.. been entered
without any competenl evidence may 'we f"md a
depanure from the essential requirements of llie law
on the basis of the evidence or'lack, of, il Finding
no such deficiency bere We decline to grant
ceniorari. .
. .
CERnORAJU DENIED.
DELL 8IId BARXE'lT, lJ,. conCU1',
END OF DOCUMENT-
. '
o 200S ThomsonIWest. No Claim to Oris. U,S, GoVl Worlcs,
~ttl1://print. westlaw,comldelivery ,html7dest=atp&fonnat=HTMLE&dataid=B005580000.oo." 2/412005
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81LZIN 5UMBERG BAENA PRicE & AXELROD LLP
.. A P"'"TN~"SMI~ 0" PFlOFE.~IONAL ,ll.5S0ClATIONS
ZOO SOUTH BISCATHE BOULEVARD, SUITE RSOQ. MIAMI, rLORIDA 3313100$3<<)
TELIE:PHOHI:: 1305) ':"~""aBO . rAX: (30813'.....'5.3 .~
, .
E-MAIL: IHrOOBIL2.IN.COM . WWW.I5IUIN.COM
Brl.n $, Adler, P.A. .
Direct DW: ~05) 350-2351 "
. Direct Fax: (305) 351-2206
, Em.II: b.dlu@bl/:Jn.com
March 16,2005
. VIA FACSIMILE
David Wqlpin, Esquire
Weiss Serota Helfman et al,
. 2665 South Bayshore Drive
Suite 420
Miaini"Florida 33m . ,
Re: Lincoln Pointe
Driveway on Adjacent PTopei-f)>
Dear Mr. Wolpin:
'.'
This finn representS Lincoln' Pointe in cOnDection 'with the application for. site' plan
approval on the property located at 17900 NW 3 I II Court in the City of A ventura. In furtherance
of the IItguments espoused in our two prior Ieners as to wby improvement 'ofthe private adjacent-.
driveway should not be required as a condition of site plan approval for the Lincoln Po~nte
property, we assert the following, ' "
On Marc1i 31, 2004, ~ur office provided the City with a iener detailing the history of the.
zoning approvals on the Lincoln Pointe and' adjacent Biscayne Cove properties. As part of the
documents provided to the City, we illustrated that the original Lincoln Pointe property was
approved to 'be developed with a total of 659 units, which consisted of 624 'Condomi.niwn units
. and 35 townhouSe units: : J have attaci)ed a copy of our march 31, 20l?4 letter (without
attachments) for your ease of reference; , .
. ,
One. of the justifications raised by the City of A ventura in coJinection willi potentially
requiring improvement of the adjacent private driveway for any redevelopment of the Lincoln
Pointe property is the potential increased traffic based on the proposed site plan, It is our
understanding tbat the .City's position is that .the private driveway was not constructed to'
acconunodate tbe proposed vehicles, As noted in our prior letters, the driveway was platted as a
. separate parcel and accepted ~y the governing municipal body, As illuStrated in .our Marc~ 3 I,
2004 correspondence, the original approval, as pl;:tted! aDd the original entrarice road easement,
. !'OAM1866415,l '592420873
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, . ~:L4IN S'~MetRG 8~tN~ PR,CA ~XE:LROO LLP
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DavId Wolpin, Esquire
March) 6, 2005
Page 2
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as platted, was approved to access 659 units on the Lincoln Pointe property. and 659 units on tb~' '
Biscayne Cove property,. ' . : , ,... . .
..
Therefore, we respectfully submit that the subject Lincoln Pointc property is a
grandfathered lot of record that was !lPproved for access for 659 units to Lincoln Pointe. The'
proposed development is seeking to 'develop 20% less units than originally approved for the
property. '
Based on the foregoing, and cumulatively based on our prior ietlers dated March 2, 2005,
Febniary 7, 2005 and March 31;2004, proposed conditions on the improvement of the driveway
.is not legally justi:fied, Thank you for your attention to the foregoing. .1>;.s. always, I may be
reached at (305) 350-2351, ' , ,
J
'-',
BSA/ph
Very truly yours,
~K-iL
Brian s~l
cc: Joanne Carr, City PlaMer (via facsimile)
Eric Soroka, city Manager (via facsimile)
Tom BriilkJey.(via facsimile)
Claudio Stivelman (via facsimile)
Stanley B, Price, Es,q, .
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MIAMI 86641S,) 7592420873 '
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u'OOcci!cu' l:cl:.?OI::mSgl,l: OI:.SgOOSO!;l1n',
~TE:04/14/05 CK':2222 TOT~:S650,OO""~ SAHK:SHEOPERA
PAYEE'CITY OF AVENTURAI.OTYOFAVI
SHEFAO~ OPERATING ACCOUNT
Property 'Account
SHI:E?oR 1330
Invoice
Description
LINCOLN POINTE A[)oIIN, APPEJ\L rEE
Amount
,04142005
650;
650,
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DETERMINATION ON VESTED RIGHTS Al'PLICATION
TO:
Stanley :8. Price, Esquire
Bilzin Sumberg Baena ~rice & Axelrod, P J..
200 SoutliBiscayne Boulevard, Suite 2500
MiaMi, Flori~a 33~1' .
RE'
. .
June 7, 2005 V~sted Rights Application (the "Application") for Lincom
Pliinte (the "Property") Fil~d on Behalf' of Property Owner (the
"Applicant")
L
DECISION.
Pursuant to City of Aventura Ordinance No. 2005-0.7 (~e "Moratorium',
Ordinance" or the "Ordinance"), I have reviewed the "above-described Application
pursuant to the Moratorium Ordinance, in. accordance with "Section 4 of the Ordinance. ,.
, ' ,
. '
Based Upon the evidence submitted and the criteria set forth in 'the o~~ce, I have
determined iliat the Applicant'has not established v~sted,rights under Section 4(a) and (b) .
".
of the Ordinance,
'n. FINDINGS:
A. BaSed upon the Application and the evidence submitted by ~ App~ant,
1 find that the Applicant bas f~ed to demonstrate aily' ~ all of the
.' . ..
faith by making suCh a substantial change in position or inCUIring
such e?cten5ive obligations and expenses; and
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3,
that it would be highly inequitable tq-deny the Applicant the right
to complete the development.
. . None of these three (3) interdependent cr;iteria have been satisfied.
B, Further, ~thout in any way limiti1lg the basis or grounds for my decision,
I find that. the .Applic~t's attempt to rely upon the April?, 2P041etter'of
the City, which is attached ~ Exhibit nAil of the Application; as being. a
govemmenuil a~ of development approval, is misplaced: To the contrary, .
I fuid that file letter of April 7, 2004 is siIIiply a routine confirm~tion of '
the then existing zoning and does not in any' 'way constifutc 'a . .
'-....
'.
, gove=ental act of development approval by the City,
m. MORATORTIJM CONTINUES TO APPLY.
As a result of my decision that the Applicant has not established vested rights PurSuant to
the Moratorium Ordinance.. please be advised that t1ie: moratorium iInposed, by ~e
. .
OrcJ.!nance continues to apply to the Property,
,.
.' IV, RlGHT OF Al'PEAL.
~y decision as City Manager is subject t~ 'appeal by the -Applicant to the City
, . '
Co~ssion by Noti,ce of Appeal filed with me within ten (10) days after the date of this
written decision. . Please. be advised that. in the. event of a lim:ely appeal, the City
Commission shall hold a public he~g on the appeal pursuant to. City Code &coon 3 b
. 71 and City Code Section '34~31,. et, seq,; and based upon the evidence submitted'shall
make a determination as to whether or not the Applicant ~ established vested rigbts~ To
the extent that the City Commission, upon any such' appeal, determines that the Applicant
demonstrates vested rights, the Moratorium Ordinance shall not be applied.
"
2,
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WAIVER.
Additionally" please be. advised that pursuant to Section 3 "Waivers" of the
Ordinance, the Applicant may apply to the City Commission for a waiver of ~e
moratorium, If you desire to pursue such waiver, it is first .necessilrythat ~e City's:
app.licatlon fonn be. completed and submitted to the City's Cori1munity ~evelopment,
Dep~ent for' processing,
,PLEASE GOVERN YOURSELF ACCORDINGLY,
Executed this,P;th day of August, 2005,.
, '
, CTIY OF A VENTIJRA
By:
esa sorMc
~roved ~ and legal sufficiency:
'N~
City Attorney
..~
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Eric M. Soroka
CitY Manager
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true ~d' correct <:opy of the aboye lind 'foregoing
.Determination on Vested Rights Application was' furnished, by D,S; Mail, postage
prepai~ addressed to Stanley B, Price, Esq" Bilzin Sumberg Baena Price & Axelrod,
P .A.;' 200 South Biscayne Bouievard, Suite 2500, Miami, Florida 33131 and that a copy'
. '
was faxed t~ Mr, Price ;it (305) '350-2204; this ~y of Au~2005,
fl' I '
. . . .' . I , k'.f /
. .l'
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, , . ',' Jllty. lerk
~ official copy of tms Detemiinati~J Vested Ri
the office of the City Clerk of the Ci~ of Aventura
Cc: City Attorney
Joanne Carr, Planning Directcir
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pplication was filed in
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BIL21N SUM BERG BAENA PRICE & AXELROD LLP
A PARTNlRSHIP Of PRO"ESSIOH~ ,fl.5SOC:IATIONS
ZOO SOUTH BISCAYNE BOULEVARD, SUITE 21500 . MI~MI. FLORIDA 33131-53040
TELEPHONE: (305) 37<4-71580 . ,.,-.x: (305) 317<4-7&83
E-..,...IL: INP'OOBILZIH..C:OM . WW'w.IIILZIN.COM
MIAMI. TA.LLAKASSEE
Brian S, Adler
Direct DiIIl: (305) 350,2351
Dlred Fa:i:: (305) 351~2206
EmaU: badlerl@biltin.com
August 18, 2005
VIA HAND-DELIVERY
Eric Soroka, City Manager
City of A ventura
19200 West Country Club Drive - 5th Floor
A ventura, Florida 33 I 80
Re: Lincoln Pointe
Notice of Appeal of Denial of Vested Rights .
Dear Mr, Soroka:
This firm represents Shefaorrrarragon, LLLP in connection with the Property located at
179 NE 31" Court, A ventura, Florida, commonly known as Lincoln Point. Please consid!lf this
our formal Notice of Appeal, pursuant to Section 4(b) of Ordinance No, 2005-07, commonly
referred to as the City of A ventura Moratorium Ordinance,
I would appreciate the City placing us in the neXt available agenda to be heard before the
City Commission.
Thank you for your attention to the for~going,
Very truly yours,.
~i--
Brian S, ~
BSA/ka
cc:
Joanne Carr, City Planner
Claudio Stivelman
Gilbeit Benhamou
To:m Brinkley
Stanley B, Price, Esq,
"MIAMI 919849,1 7592420873
" ~
.
RESOLUTION NO, 2005-48
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA. FLORIDA CONCERNING VESTED
RIGHTS APPLICATION AND PROVIDING AN EFFECTIVE
DATE,
WHEREAS, the City Commission has heard the appeal of the City Manager's
denial of the Vested Rights application concerning Lincoln Pointe,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Section 1, Based upon the evidence submitted, the Commission finds that the
Applicant has not established vested rights under the Moratorium Ordinance,
Section'2, The Moratorium Ordinance shall continue to apply to the Lincoln
Pointe property,
Section 3. This Resolution shall become effective immediately upon its
adoption,
The foregoing Resolution was offered by Commissioner Diamond, who moved its
. adoption, The motion was seconded by Mayor Gottlieb. and upon being put to a vote.
the vote was as follows:
Commissioner Bob Diamond yes
Commissioner Billy Joel no
Commissioner Harry Holzberg no
Commissioner Michael Stern yes
Commissioner Luz Urbaez Weinberg yes
Vice Mayor Zev Auerbach yes
Mayor Susan Gottlieb yes
~r
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Resolution No, 2005-48
Page 2
PASSED AND ADOPTED this 6th day of September, 2005
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CITY ATTORNEY
^
Filedf' he Office orr ~i~ Clerk this 7th day of September, 2005,
I
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MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Miami-Dade County, Florida
STATE OF FLORIDA
COUNTY OF MIAMI-DADE:
Before the undersigned authority personally appeared
O,V. FERBEYRE, who on oath says that he or she is the
SUPERVISOR, Legal Notices of the Miami Daily Business
Review f/k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami-Dade
County, Florida: that the attached copy of advertisement,
being a Legal Advertisement of Notice in the matter of
CITY OF AVENTURA - PUBLIC HEARING 2/1/2006
APPLICANT SHEFAORfTARRAGON LLP
in the XXXX Court,
was published in said newspaper in the issues of
01/20/2006
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Miami-Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Miami-Dade County,
Florida, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second class mail matter at the post
office in Miami in said Miami-Dade County, Florida, for a
period of one year next preceding the first publication of the
attached copy of advertisement; and affiant further says that he or
she has neither paid nor promised any person, firm or corporation
any discount, rebate, commission or refund for the purpose
of securing t ' adve' en for publication in the said
newspape .
Sworn to and subscribed before me this
20 day of JANUARY
,A,D, 2006
~/?;1/~
(SEAL)
,,;t\. Cheryl H Marmer
O.V. FERBEYRE per/.o~x ,lrMWAomlMiflOn 00338559
,.,..." Expires July 18, 2008
'~~J
'ClTYO'A.....UIt&t~"' '.
1IO,..Wflt!rIl(LleIlEA....e"'.
'" . ,- ,,~Jit-,' ~,~~._,
DIde_"I'ImeofPQbllc.......~"F~;2Q06 -
-:~~,p.m, ' .,'~.;:'i
AppIIcent N8meINumblIr: $hefaorITarr8{lOO LLLP
(01-WA'-06)
. AppIIcent. Request:
.'The applicant, - ShefaorITarragon
_,J,J,.f',~J1.q~~J~~ from.
cSeetion 3 of MoraIDriumOrdirlanc;$
"No, 20!>&-07.to pltfltliU8d8W-"
ment of the'pn:IpeI1ykn01lllrt.
'L.lncoln Pointe'" to a project con-
..,"tIi8tiIlO' of a total of.MO.dwelling
'~UniIS Including a 2&1ltory 18SidentiaI:
tewer. with an overaI ~t of '~.~.
,feet. . on P-fOPEIIWZ.1lICat8d .in ,the:
RMF4 (Multifamily High Density
ResideI'ltiaI) DIstriet,
"t7~,:::)~ ,'_ ._ ,~;:'
~..~fIrop8Itv:: "17900NE 31 Court, CityofAventu..a"
~- '~<' :"dlY~:,-,;:::; i:-. '/~, ~,_,'~i?J;].;
,.LegaI DeacrIpIIon:'''';-:i,-q~'',T1'8Ct 0 of AdmiraI'sf'Clrt Sectionl
."",:00&,. ac:cordingto the plat the~
. ~ in Plat Book 113, PageS.1)
of the PubliC Records of MiamI-;
. . ' , . '. . 'Dadec.ou~Aorida.,.. ,',' "., 1
,PIan$ a~on~~d may be eXa.~_OeI:idw,fh~'~lJl~rblJ~i~~OUfll.~t:
:the, City ofAventu..~,~pvertlllierrt..~nter, C9ll'lfPlInitY .Dlver~t;
(oepaJ1mElrlt, l~2OQWest Co\.iIlWCI,1Ap Pf/I(~~Aveptura. AorJ4$. ~l~'i
;PIa~~be ~~at or.~fo'" ~~H~ng: Th..A~1IeAtiM
'maYd1angedu"!'Sl~~$(j'!QP~' '.. ...""."''l.''T<''''''--:l
The Public Heari!)9 win ~.hek;I at c;ity of Avt?~ra ~1'Il~~~a~
ith$<~"",a~ve, ,Y:gtJr. ~~.l1Iayb'! m~, !1'I~tllQ!),.Jtt~~.
~~iQ(,~ JI'I,\Y~ pdpr~~=~~,~r~,~~f4
=~..;~. '. . .,'i'CQmmlloitY 'QM1~t~~R
!add~~,F!H'~~r.lbWima~,~~~)~: ".
In accordanceViith' the Affiertcans< with~:AcrOf 1990:'..1
~~~.;~.af\dC~~~~~':
the Office Of the 'CIty Clerk. ....8901. OOtfater than tWO bUslllesa".i
priortosuch~._i.' .1
,If a Rt~~ to ~ ~declsion inade by"CltvConvnl~
,WiIn ie$pecttO:any matter corwid8fed~a .meeIIng<<be8ring; that
~"WlffiiilllfW~'dRfte~MdifOt...,~;1tl/jJj
~ to 8I1S(Q that, a ~ record of the Pr0c:eedin08l$made..whiC;t).
nl'7fj~ c~r~1Jig
/
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Miami-Dade County, Florida
STATE OF FLORIDA
COUNTY OF MIAMI-DADE:
Before the undersigned authority personally appeared
O.V. FERBEYRE, who on oath says that he or she is the
SUPERVISOR, Legal Notices of the Miami Daily Business
Review f/k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami-Dade
County, Florida; that the attached copy of advertisement,
being a Legal Advertisement of Notice in the matter of
CITY OF AVENTURA - PUBLIC HEARING FOR
2/1/2006 - APPLICANT SHEFAOR/TARRAGON LLLP
in the XXXX Court,
was published in said newspaper in the issues of
01/23/2006
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Miami-Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Miami-Dade County,
Florida, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second class mail matter at the post
office in Miami in said Miami-Dade County, Florida, for a
period of one year next preceding the first publication of the
attached copy of advertisement; and affiant further says that he or
she has neither paid nor promised any person, firm or corporation
any discount, rebate, commission or refund for the purpose
of securing thO adverti nt for publication in the said
newspaper.
~
Sworn to and subscribed before me this
23 day of JANUARY
,A.D. 2006
~~~ n?--...--
(SEAL) RoJP a\. Cheryl H Marmer
. rJ~ My Commission 00338559
O.V. FERBEYRE person\v~~r~E3UIY 18, 2008
RJ!f',~~d.j/I,~-,/n IOF~:J
--
'OITYOFARIITUIIA
", "'~j:MiUlr.c)t_,::~,,~j"'h
DIlIIt .....TImltOf,PubIIc Hed1f: W~I,F8bruatt1,2006
"'-8:00p,m.'~ '/,"',
.0
AppIIcent N8rneINundIer:
Shefaorfrarragon lLLP,
(O"1-WA-66),
The appIIcl8rit;. SheiaWrr~
ULP, Is r8qu8stfftfawaNWUndfltl
, --sectIOn3OfMomoiiJiifOrdliWlC8'"
No, 2005-07 to ~,.~
ment of Ihe preperty lTioWt'f''k
- "lJncoin 'PoInte...to'.~'a,jr'aJ:
slsting of a total, of 4eO~
units inctucllng a 28-etbry nJ8Iden-'
tiaI tower with an over&II height of
315 feet on Pf'OPl'!1Y locatfJd in Ihe
RMF4 ~.High DensIty
Reside_:Distl1ct ,-" - ,
119OONE31 COurt, CIty of Aventura
AppIIcMt",RitquM:
LOClIIIon ot8ubfect~ _
Legal DeecrIplIon: '
Tract 0 of AdmIraI's P<lJl' Sectiof:li
One, according to the Pl8t 1hereOt
_~.~~;t=
:', r'~~:~<
Plans are O!\ _anc,1 "*Yb.ee,xamlneddu.ril1lJ .81' ~ hours at,
Ihe City Of Avrir'ItOta Governrnerlt Certt8r;eomtnunitV~tieveIopment-
Department, 1~West Country C.h.Ib Qr:Ive. A~ra_,:,F!Q~ 331lJ<),!
PIans,!Il8'( ~ "~,,,:or b8for8 the ~icH8arlng, TJ1t' ~
may ~thehe8rfngprocess.,' '0"
The PubIlc ~wi\I be heldin1heCity ~C?h~~'"
City of Aventura GQVemmentCe,nte,rat Ihe~~., 'fOQr
comments may be mmt'ln person at Ihe hearing.or filed In wtftlng'PtlOMo
the hearing'., Refer' 'to applicant/property on ~~.
mail S8I'I1e,to City of AventuraGovemment <Cenler._.~",rrl_'
Development DeJ)Il1'tment attheaddr. above, For further'~tt9P,
p1ease,caII(305)~,' . .', ~""
~... -', '
In acco~withtheArnericanS with DisabIlitieS Ac:ti..~1WJJlI
. persons who are disabled and whp need speeial ~~'
~ in ,this proceeding 'bec;a~ of u,at clis8bIIity.~ .~.
the Office of the City Clerk, 466-8901. not later than two tiUiifrieslr ~
pFiortcsuctfproce,edrngS, '. . "+'i"N
If a person decides to appeal any decision made by the CityCommlssiOn
witb.tBllpElCt to any matter considered at a meeting or hUring.that
person will need a record of Ihe p~gs and. foi' such purpose, may
need to enetJtethat a verbatim record of Ihe.proceedings ltt made. 'Which
,record inc;ludes the testimony and eviclence, I./POI! which the ~i8to
lbe-ba8ed, - -... . '.' -::,: '.'. ' ", -'
ir.
Teresa M,Soroka, ~,CityCIer1(:
1/23 06-'3-391632407M.
ORDINANCE NO. 2006-_
F~ Wfd-l 't"
J - "). -0 h
A~~
AN ORDINANCE OF THE CITY OF A VENTURA, FLORIDA AMENDING
THE CITY'S LAND DEVELOPMENT REGULATIONS TO REVISE
AUTHORITY AND PURPOSE, DEFINITIONS AND USE REGULATIONS
TO CREATE ADDITIONAL REGULATIONS, RESTRICTIONS AND
PROHIBITIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR
INCLUSION IN THE CODE; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the state mandated Evaluation and Appraisal Report of the City of
Aventura Comprehensive Plan was adopted by the City Commission by Resolution No,
2005-71 on November 1,2005; and
WHEREAS, one of the recommendations of the Evaluation and Appraisal Report
(the "EAR") is that the Land Development Regulations be revised to provide a cohesive
blueprint for development and redevelopment of the City by addressing certain
strategies to accommodate growth while maintaining neighborhood integrity and by
limiting the intensity of future development and redevelopment in a manner that is
consistent with current development patterns and that minimizes negative impacts on
the City's infrastructure; and
WHEREAS, the City has held numerous workshop meetings and obtained
extensive input and participation by the public through these meetings; and
WHEREAS, the City Manager has presented and recommended the adoption of
revisions to the Land Development Regulations that will achieve the purposes of the
temporary moratorium which was imposed by Ordinance No, 2005-07 and will
incorporate the recommendations of the EAR and that will preserve the public health,
safety and welfare of the City;
WHEREAS, the City Commission has been designated as the Local Planning
Agency for the City pursuant to Section 163.3174 of the Florida Statutes; and
WHEREAS, the Local Planning Agency has reviewed the proposed amendments
pursuant to the required public hearing and has recommended approval to the City
Commission; and
WHEREAS, the City Commission has held the required public hearings, duly
noticed in accordance with law; and
WHEREAS, the City Commission has reviewed the action set forth in the
Ordinance and has determined that such action is consistent with the Comprehensive
Plan and with the pending EAR based amendments,
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF A VENTURA, FLORIDA, THAT:
Ordinance No. 2006-
Page 2
Section 1. Recitals Adopted. That the above stated recitals are hereby
adopted and confirmed. ,
Section 2. Code Amended. That Section 31-2 "Authority and purpose" of
Article I. "Purpose and Applicability", Section 31-21 "Definitions" of Article II "Definitions
and Rules of Construction", Section 31-143 "Residential Zoning Districts" of Article VII
"Use Regulations", Section 31-144 "Business Zoning Districts" of Article VII "Use
Regulations" and Section 31-145 "Town Center Zoning Districts" of Article VII "Use
Regulations" of Chapter 31, "Land Development Regulations" of the City Code are
hereby amended to read, as follows1:
Section 31-2. Authority and purpose.
The LDRs shall provide a cohesive blueprint for development and redevelopment of the
City by addressing strateoies to accommodate orowth while maintaining neiohborhood
integrity: ensure appropriate height and site development requirements and design
guidelines: ensure appropriate transitions and linkages between different
neighborhoods and uses: encourage more walkable neiohborhoods; buffer
neighborhoods and existing development from the encroachment of incompatible uses:
limit the intensity of future development and redevelopment in a manner that is
consistent with current development patterns and that minimizes further negative
impacts to the City's infrastructure, traffic congestion, hurricane evacuation clearance
times and Quality of life and prevent redevelopment of a residential parcel in a manner
that would increase its existing density, unless redevelopment of said parcel is within a
redevelopment area described in or envisioned by the City's Comprehensive Plan or
will implement specific development or redevelopment Qoals or plans. that may be
established for particular areas by the City Commission or redevelopment that is
provided by expressly authorized conditional use approval.
Section 31-21. Definitions,
* * *
Developer shall mean any person, corporation, partnership, other legal entities or a
governmental agency, undertaking any development and/or redevelopment as defined
in these LDRs,
Development shall mean the construction, alteration or material chanoe to vacant land
and will be limited in its applicability to those properties shown on the City of Aventura
Vacant Land Map included as Fioure 11.A.3 in the 2005 Evaluation and Appraisal Report
of the City's Comprehensive Plan, Development on all other parcels not shown as
vacant land on the City of Aventura Vacant Land Map will be considered
1 Underlined provisions constitute proposed additions to existing City Code text; ctriclwn through
provisions indicate proposed deletions from existing City Code text.
Ordinance No. 2006-
Page 3
Redevelopment. unless otherwise expressly provided herein, See
Redevelopment,Carrying out of any building activity-or mining operation, the making of
any material change in the use or appearance of any otructurc or land, or the dividing of
land into parcels, The following activities or uses more specifically, but without
-limitation, shall be taken for the purposes of these regulations to constitute
"development":
(2) ^ change in the intenoity of use of land, ouch ao an increase in the number of
dwelling unit::; in a structure or on land, or an increase in the number of businesses,
manufacturing ostabli::;hmcnt, or offices,
(-31) Alteration of shore or bank of a lake, pond, or canal, including any "coastal
construction" as defined in F.S, S 161,021.
(4 2) Commencement of drilling, mining, or excavation on a parcel of land,
except to obtain soil samples,
(6 ~ Clearing of land as an adjunct of construction.
(':f. .4) Deposit of refuse, solid or liquid waste, or fill on a parcel of land,
(5) The demolition of a lawful non-conforming solely residential structure (which
may include accessory uses) and construction of a commercial use on the same
parcel(s).
(6) The demolition of a lawful non-conforming solely commercial structure and
construction of a residential use on the same parcel(s).
The following operations or uses shall not be construed for the purpose of these
regulations to involve "development";
(1) Work by a highway or road agency or railroad company for the maintenance
of a road or railroad track, if the work is carried out on land within the boundaries of the
right-of-way.
(2) Work by any utility and other persons engaged in the distribution or
transmission of gas, water, sewerage, or electricity, for the purpose of inspecting,
repairing, renewing, or constructing within any established rights-of-way any sewers,
mains, pipes, cables utility tunnels, powerlines, towers, poles, tracks, or the like.
Ordinance No. 2006-
Page 4
(3) Work for the maintenance, renewal, or alteration of any structure, if the work
affects only the interior or the color of the structure or the decoration of the exterior of
the structure,
(4) The use of any structure or land devoted to dwelling uses for any purposed
customarily incidental to enjoyment of the dwelling.
(5) A change in the ownership or form of ownership of any parcel or structure.
(6) The creation or termination of rights of access, riparian rights, easements,
covenants concerning development of land, or otherrights in land.
(7) The use of any land for the purpose of growing plants, crops, trees, and other
agriculture or forestry products; raising livestock; or for other agricultural purposes,
(8) A change in use of a structure from a use within a zoning district to another
use in the same zoning district.
Development includes all other development customarily associated with it unless
otherwise specified. When appropriate to the context, development refers to the act of
development or to the result of development. Reference to any specific operation is not
intended to mean that the operation or activity when part of other operations or
activities, is not development. Reference to particular operations is not intended to limit
the generality of this definition,
Development Approval, development order or development permit shall mean any
building permit, site plan approval, conditional use approval, temporary use permit,
subdivision approval, change of land use district boundary, plan amendment or any
other official action to grant, deny or grant with conditions, issued by any official,
commission, or board of the City having the effect of permitting development and/or
redevelopment.
Redevelopment (Residential) shall mean the demolition and reconstruction, renewal.
alteration or material chanqe in the extent or appearance of a residentially zoned
structure or structures or significant part of a structure or structures and/or a change in
the intensity of use of land, such as an increase in the number of dwelling units in a
structure or on land, and/or an increase in the number of bedrooms, Redevelopment
shall not mean the demolition of a lawful non-conforming solely commercial structure
and construction of a residential use on the same parcel(s),
Redevelooment (Commercial) shall mean the demolition and reconstruction. renewal.
alteration or material chanqe in the extent or appearance of a commerciallv zoned
structure or structures or siqnificant part of a structure or structures and/or a chanqe in
Ordinance No. 2006-
Page 5
the intensity of use of land, such as an increase in floor area, Redevelopment shall not
mean the demolition of a lawful non-conforming solely residential structure (which may
include accessory uses) and construction of a commercial use on the same Oarcel(s).
Redevelopment includes all other development customarily associated with it unless
otherwise specified. When appropriate to the context. redevelopment refers to the act
of redevelopment or to the result of redevelopment. Reference to any specific
operation is not intended to mean that the operation or activity when part of other
operations or activities, is not redevelopment. Reference to particular operations is not
intended to limit the generality of this definition.
Redevelooment Area means those redevelopment areas described in or envisoned by
the City's Comprehensive Plan or redevelopment 90als and plans that may be
established for particular areas by the City Commission, The Biscayne Boulevard
Commercial Corridor described in the City's Comprehensive Plan as a redevelopment
area shall incorporate all commercial property with frontage on Biscayne Boulevard
including but not limited to the Aventura Mall and all of its associated outparcels,
Section 31-143. Residential Zoning Districts.
(a) Purpose, These residential districts are intended to provide for residential
development in conformance with the parcel's Future Land Use Map designation, A
residential parcel's zoning designation shall be equivalent to the designation of the
Future Land Use Map. The number of dwelling units permitted per gross acre of a
zoning parcel, as defined in the LDRs, shall not exceed the total number of dwelling
units permitted by the City's Comprehensive Plan designation for the zoning parcel.
The uses within this district shall be consistent with, but may be more restrictive than,
the corresponding Residential land Use Plan category or Town Center Land Use Plan
category permitted uses. These zoning districts shall be applied to land designated
Residential on the City's Future Land Use Map, A development parcel may have a
maximum number of dwelling units based on an adopted development order or
resolution,
Development of a parcel shall be subiect to the Site Development Criteria set out in the
zoning districts of this Section, Subsequent redevelopment shall be limited to existing
density and number of bedrooms, More specifically, for any property on which the
density allowed by the Site Development Standards is exceeded by existing
development. the new density on redevelopment shall not exceed that allowed in the
Site Development Standards and further provided that if the development has received
site plan approval. is under construction or existed prior to the effective date of this
provision with density lower than allowed by this Section. redevelopment shall be
limited to that lower density and to the existing number of bedrooms, Excepted from
Ordinance No. 2006-
Page 6
this provision is redevelopment that is described in or envisioned in the City's
Comprehensive Plan or such additional parcel(s) that will implement specific
development or redevelopment Qoals that may be established for particular areas by
the City Commission or redevelopment that is provided by expressly authorized
conditional use approval.
(b) Residential Single-Family District (RS1), The following regulations shall apply to all
RS 1 districts.
(3) Site development standards,
Q, Development shall be subiect to the criteria set out in this Section, Redevelopment
shall follow the Site Development Standards with the exception that any property on
which the density allowed by the Site Development Standards is exceeded by existing
development. the new density on redevelopment shall not exceed that allowed in the
Site Development Standards and further provided that if development has received site
plan approval. is under construction or existed prior to the effective date of this
provision with density lower than allowed by this Section. redevelopment shall be
limited to that lower density and to the existing number of bedrooms. unless otherwise
provided by expressly authorized conditional use approval.
(c) Single-Family Residential Districts (RS2). The following regulations shall apply to all
RS2 districts,
(3) Site development standards,
g. Development shall be subiect to the criteria set out in this Section, Redevelopment
shall follow the Site Development Standards with the exception that any property on
which the density allowed by the Site Development Standards is exceeded by existing
development. the new density on redevelopment shall not exceed that allowed in the
Site Development Standards and further provided that if the development has received
site plan approval. is under construction or existed prior to the effective date of this
provision with density lower than allowed by this Section. redevelopment shall be
limited to that lower density and to the existing number of bedrooms, unless otherwise
provided by expressly authorized conditional use approval.
(d) Multifamily Medium Density Residential Districts (RMF3), The following regulations
shall apply to all RMF3 Districts,
(3) Site development standards,
Ordinance No. 2006-
Page 7
k, Development shall be subiect to the criteria set out in this Section, Redevelopment
shall follow the Site Development Standards with the exception that any property on
which the density allowed by the Site Development Standards is exceeded by existing
development. the new density on redevelopment shall not exceed that allowed in the
Site Development Standards and further provided that if the development has received
site plan approval. is under construction or existed prior to the effective date of this
provision with density lower than allowed by this Section, redevelopment shall be
limited to that lower density and to the existing number of bedrooms, unless otherwise
provided by expressly authorized conditional use approval.
(e) Multifamily Medium Density Residential Districts (RMF3A). The following regulations
shall apply to all RMF3A Districts.
(3) Site development standards,
k, Development shall be subiect to the criteria set out in this Section, Redevelopment
shall follow the Site Development Standards with the exception that any property on
which the density allowed by the Site Development Standards is exceeded by existing
development. the new density on redevelopment shall not exceed that allowed in the
Site Development Standards and further provided that if the development has received
site plan approval. is under construction or existed prior to the effective date of this
provision with density lower than allowed by this Section, redevelopment shall be
limited to that lower density and to the existing number of bedrooms, unless otherwise
provided by expressly authorized conditional use approval.
(f) Multifamily High Density Residential Districts (RMF4). The following regulations shall
apply to all RMF4 Districts.
(1) Purpose of districts, The purpose and intent of this district is to provide suitable
sites for the development of well-planned, environmentally compatible medium-high
density multifamily residential use in areas consistent with the City's Comprehensive
Plan Future Land Use Element. Densities shall not exceed W 45 units per gross acre,
(2a) Conditional Use. The following uses may be established if first approved as a
conditional use:
a, All uses permitted in the CF zone,
b, Uses that exceed the height limitation, to a maximum height of 30 stories or
300 feet. or to a maximum height of 35 stories or 350 feet for any property which
was granted a waiver pursuant to Section 3 of Ordinance 2005-07.
c. Uses that exceed the density limitation. to a maximum of 60 dwelling units per
gross acre,
Ordinance No, 2006-
Page 8
(3) Site development standards,
b. Maximum height:
1. Duplexes: Two stories or 25 feet.
2, Townhouses: Three stories or 35 feet.
3. High-rise apartments: 4G 25 stories or 400 250 feet.
i. Development shall be subiect to the criteria set out in this Section. Redevelopment
shall follow the Site Development Standards with the exception that any property on
which the density allowed by the Site Development Standards is exceeded by existing
development. the new density on redevelopment shall not exceed that allowed in the
Site Development Standards and further provided that if the development has received
site plan approval. is under construction or existed. prior to the effective date of this
provision with density than allowed by this Section. redevelopment shall be limited to
that lower density and to the existing number of bedrooms, unless otherwise provided
by expressly authorized conditional use approval.
(g) Multifamily Medium Density Residential Districts (RMF3B),
(4) i. Development shall be subiect to the criteria set out in this Section.
Redevelopment shall follow the Site Development Standards with the exception that
any property on which the density allowed by the Site Development Stand'ards is
exceeded by existing development. the new density on redevelopment shall not exceed
that allowed in the Site Development Standards and further provided that if the initial
development was constructed with density lower than allowed by this Section,
redevelopment shall be limited, to that lower density and to the existing number of
bedrooms, unless otherwise provided by expressly authorized conditional use approval.
Section 31-144 Business Zoning Districts.
(a) Purpose, These business districts are intended to provide for commercial
development in conformance with the Comprehensive Plan and provide for a variety of
zoning districts to accommodate the City's business and commerce needs, These
zoning districts may be applied to land designated Business and Office and Industrial
and Office on the City's Future Land Use Map, however, the uses within this district
shall be consistent with, but may be more restrictive than, the corresponding Business
and Office and Industrial and Office category permitted uses,
Development and/or redevelopment of a parcel in the Business Zoninq Districts shall be
subiect to the Site Development Standards set out in the zoning districts of this Section.
Ordinance No, 2006-
Page 9
The floor area ratio permitted in Business Zoning Districts shall not exceed the
maximum of 2.0 as set out in the Business and Office Future Land Use CateQorv in the
City's Comprehensive Plan.
(b) Neighborhood Business (B1) District. This district is intended to provide primarily for
retail sales to a surrounding neighborhood. Retail stores permitted therein are intended
to include primarily convenience goods which are usually a daily necessity for a
residential neighborhood. The district is appropriate for location on a collector or an
arterial roadway,
(1) Uses permitted. No building or structure, or part thereof, shall be erected, altered
or used, or land used in whole or part for other than one or more of the following
specific uses provided the requirements set forth elsewhere in this section are satisfied:
(g)lnntitutions such as placcs of 'Norship, IibraricG, muscums and oimilar facilitics,
(~ill Antique shops.
(i- b.) Restaurants and coffee houses or dining room where kitchen is screened or
located altogether within an enclosed building or room and with ample provisions for
carrying away or dissipating fumes, odors, smoke or noise and where premises are so
arranged and the business is so conducted as not to be offensive or create a nuisance
to occupants of adjoining premises or to passersby.
(j 1) Restaurants and cafes may serve alcoholic beverages where such service is
strictly incidental to the service of food and from a service bar only provitled no
entertainment of any kind is furnished,
(-k il No sign or any type of character shall be exhibited or displayed to the outside
denoting that alcoholic beverages are obtainable within,
.Qs.) Uses accessory to any of the above uses when located on the same plot.
(5) Site Development Standards
f, Development or redevelopment shall be subiect to the criteria set out in this Section,
(c) Community Business (B2) District. This district is intended primarily to provide for
general commercial activity for a wide range of goods and services to the entire
community and sub region, Such businesses generally require locations convenient for
both vehicular and pedestrian traffic and would be expected to have orientation toward
and direct access to arterial roadways,
(2) Conditional use. The following uses if first approved as a conditional use:
i. Uses that exceed the height limitations. UP to a maximum of 20 stories or 200 feet.
Ordinance No. 2006-
Page 10
(5) Site development standards,
a. Floor area ratio and lot coverage and minimum landscaped open space
requirements: For purp03cs of this .paragraph [1" structure parking 3hall not count as
part of thc floor area, but may be counted toward calculation of the floor orea- ratio,
1, For all buildings: Any structure parking serving the primary use on the site shall
be incorporated into the building envelope and shall be compatibly designed. Such
parking structure shall comply with all minimum setback and buffer yard requirements.
2. For those buildinga not excepted under Section 31 144(c)(5)a.5 with zero 33
percent of the required parking located vlithin a parking structurc: The floor area ratio
shall be 0.40 at one story and shall be increa3ed by 0,11 for each additional" story, The
total lot coverage permitted for 011 buildings on the 3ite shall not exceed 40 perccnt of
the total lot area, The total minimum lond3caped open apace required 3hall be 33
percent of the total lot area, However, if structure parking levcl(c) is/ore counted
towards calculation of the floor area ratio then the total lot coverage permitted for all
building3 on the site shall not exceed 38 percent of the total lot area. ^dditionally, the
total minimum landscaped opcn space required 3hall be 35 percent of the total lot area.
3, For those buildings not excepted under Section 31 144(c)(5)a,5 with 33 percent
66 percent of the required parking located within a parking structurc: The floor area
ratio shall be 0.40 at one story and shall be increased by 0,11 for each additional story.
The total lot coverage permitted for all building3 on the site shall not exceed 40 percent
of the total lot area. The total minimum land3caped open space required sholl be 36
perccnt of the total lot area, However, if structure parking le'lel(s) is/are counted
towards calculation of the floor area ratio then the total lot cO'v'erage permitted for all
building3 on the 3ite shall not excecd 35 percent of the total lot area, ^dditionally, the
total minimum land3caped open space required ahall be 37 percent of the total lot area.
4, For those buildings notexcepted in Section 31 144(c)(5)[1,5 with 66 percent 100
percent of thc required parking located ';.'ith a parking structure: The floor area ratio
shall be 0.40 at one story and shall be increased by 0,11 for each additional atory, The
total lot coverage pcrmitted for 011 buildings on thc aite shall not exceed 45 percent of
the total lot area, The total minimum land3eaped open 3pace required shall be 3G
percent of the total lot area, However, if structure parking level(3) is/are counted
towards calculation of the floor area ratio then thc total lot coverage permitted for all
buildings on the site shall not exceed 35 percent of the total lot area. ^dditionally the
total minimum landscaped open 3paee required shall be 40 percent of the total lot area.
2. The floor area ratio shall be 0.40 at one story and shall be increased by 0,11 for
each additional stOry. Structure parking shall not count as part of the floor area, but
shall be counted in computing buildinq heiqht. The total lot coverage permitted for all
buildinqs on the site shall not exceed 40 percent of the total lot area, The floor area
Ordinance No. 2006-
Page 11
ratio shall not exceed 2.0 for all buildinqs in this district in conformance with the
Comprehensive Plan,
5:- 3. For shopping center buildings with over 1,000,000 square feet of gross leasable
area that provide public amenities including, but not limited to, public plazas, fountains
or other water features, seating areas and recreational walking areas and that do not
exceed 5 stories in height, the minimum landscaped open space shall be fifteen (15%)
percent of the total lot area, Said open space shall be extensively landscaped with
grass, trees and shrubbery in accordance with a landscape plan to be approved by the
City Manager. The non-leasable areas within enclosed or non-enclosed malls which
are landscaped with grass, trees and/or shrubbery, water areas therein, and areas
therein with permanent art display areas may be used as part of the required
landscaped open space provide such areas do not exceed ten (10) percent of the
required landscaped open space,
b. Maximum height: 2G Rstories or 344 120 feet overall maximum height, including
structure parking, For purposes of this paragraph b" atructurc parking shall not be
counted in computing number of stories but shall be counted in computing overall
maximum height. That portion of the building or structure within 200 feet of any
residential zone shall be subject to a height limitation of one foot for every two feet in
distance from the residential zoned plot unless the application of this requirement would
limit the building height to a minimum of 25 feet.
d. Setbacks: For purposes of this paragraph d., structure parking incorporated within
the building envelope shall count to'.vard the number of stories,
Front vard: not less than 25 feet in depth
Street side vard: not less than 20 feet in deoth
Side and Rear vard: There is no side or rear yard setback required for a olot
which is not adiacent to a street or alley, A side and rear yard setback of 20 feet
in depth is required for a plot adiacent to a residentially zoned district. street or
alley,
1, Those buildings whose total number of stories is between zero and tcn ~
floors, including any'structure parking incorporated within the building envelope, shall
have a front yard not less than 25 feet in depth, Every plot shall have a street side yard
of not less than 20 feet depth. Thero i::J no aide or rear yard setback required for a plot
'.vhich in not adjacent to a street or alley, ^ side and rear yard setback of 20 feet is
required when adjacent to a residentially zoned diotrict, street or alley,
2, Those buildings whose total number of stories is behveen 11 seven and 20
12 flooro, including any structure parking incorporated within thc building envelope,
shall havc a front yard not less than 35 feet in depth, Every plot shall have a street oide
Ordinance No. 2006-
Page 12
yard of not ICSG than 35 f-cet in depth, Therc is no sidc or rcar yard setback required for
a plot \','hich is not adjaccnt to a strect or allcy, /\ side and rcar yard setback of 35 f-cct
is required when adjacent to a residcntially zoned dbtrict, strcct or alley,
3, Thosc buildings whonc total numbcr of stories exceeds 20 floors including
any structure parking incorporatcd within thc building cnvelopc, shall havc a front yard
not Icss than 45 kct in dcpth. Evcry plot shall havc a strcet sidc yard of not Icss than
45 fcet in depth, Therc is no side or rcar yard sctback rcquired for a plot which is not
adjaccnt to a strect or allcy. ^ side and rcar yard nctback of 45 fect is required when
adjaccnt to a rcsidcntially zoned district, street or alley,
f, Development and redevelopment shall be subiect to the criteria set out in this
Section,
(d) Heavy Business (B3) District, This district is intended to provide locations for
planned commercial centers, sharing a common identity, parking and other support
facilities developed according to an overall development plan; and for a wide range of
goods and services to serve a market beyond the community itself, Such commercial
concentrations are expected to draw substantial patronage from outside areas and are
not expected to serve the convenience needs of local residents. As such, these
centers should be oriented towards and have direct access to arterial roadways,
particularly major arterials,
(2) Conditional use. The following uses if first approved as a conditional use:
a. Buildings or structures exceeding the height limitations set forth in this section, afl
additional maximum height of 100 feet UP to a maximum of 20 stories or 200 feet.
(6) Site development standards.
a, Floor area ratio and lot coverage and mjnimum tandscDped open space
requirements: For purposes of this paragraph a" structure parking shall not count as
part of the floor area, but may be counted toward calculation of the floor area ratio,
1, For all buildings: Any structure parking serving the primary use on the site shall
be incorporated into the building envelope and shall be compatibly designed, Such
parking structure shall comply with all minimum setback and buffer yard requirements,
2, For those buildings with zcro 33 pcrccnt of thc required parking located within a
parking ntructure: The floor area ratio nhall be 0.40 at one story and shall be increased
by 0,11 f-or each additional story, The total lot coverage permitted for all buildings on
the Gite shall not exceed 40 percent of the total lot area, The total minimum IandGcaped
open apace required Ghall be 33 percent of the total lot area, However, if Gtructure
parking level(s) is/arc counted towards calculation of the floor area ratio then the total
Ordinance No. 2006-
Page 13
lot coverage permitted for all buildings on the site sh::111 not exceed 38 percent of the
total lot are::1. Additionally, the total minimum landsBaped open space required shall be
35 percent of the total lot area,
3. For those buildings with 33 percent 66 pereent of the required parking located
within a parking structure: The floor area ratio shall be 0.40 at one story and shall be
increased by 0.11 for e::lch ::1dditional story, The total lot cover::1ge permitted for all
buildings on the site shall not exceed 40 percent of the total lot are::1, The tot::11
minimum landscaped open sp::lce required shall be 36 percent of the total lot area,
However, if structure parking le'/el(s) is/::1re counted towards calculation of the floor area
mtio then the total lot coverage permitted for all buildings on the site shall not exceed
35 percent of the total lot area, ,^,ddition::1l1y, the total minimum landscaped open space
required shall be 37 percent of the tot::lllot area.
4, For those buildings with 66 percent 100 percent of the required p::1rking 10c::1ted
'Nith ::l p::lrking structure: The floor area ratio shall be 0.40 at one story and shall be
incre::1sed by 0,11 for e::lch additional atory, The total lot coverage permitted for ::lll
buildings on the cite shall not exceed 45 percent of the total lot area, The total
minimum landscaped open sp::lce required shall be 30 percent of the total lot ::1re::1.
However, if structure parking level(s) is/are counted to'.vards calculation of the floor area
ratio then the total lot coverage permitted for all buildings on the site shall not exceed
35 percent of the total lot area. Additionally the tot::11 minimum landscaped open sp::lce
required shall be 40 percent of the total lot ::1rea,
2. The floor area ratio shall be 0.40 at one story and shall be increased bv 0.11 for
each additional stOry. Structure parking shall not count as part of the floor area. but
shall be counted in computing building heioht. The total lot coverage permitted for all
buildings on the site shall not exceed 40 percent of the total lot area, The floor area
ratio shall not exceed 2,0 for all buildings in this district in conformance with the
Comprehensive Plan,
b, Maximum height: 2G 12 stories or 344 120 feet overall maximum height, including
structure parking, For purposes of this paragraph b" structure parking sh::111 not be
counted in computing number of stories but sh::111 be counted in computing overall
maximum height. That portion of the building or structure within 200 feet of any
residential zone shall be subject to a height limitation of one foot for every two feet in
distance from the residential zoned plot unless the application of this requirement would
limit the building height to a minimum of 25 feet.
d, Setbacks: For purposes of this pamgmph d" structure p::lrking incorporated within
the building envelope shall count tow::lrd the number of Gtories,
Front yard: not less than 25 feet in depth
Street side yard: not less than 20 feet in depth
Ordinance No. 2006-
Page 14
Side and Rear yard: There is no side or rear yard setback required for a plot
which is not adiacent to a street or alley, A side and rear yard setback of 20 feet
in depth is required for a plot adiacent to a residentially zoned district. street or
alley,
1. Th03c building3 wh03c total number of ctorieD is between zcro and ten ~
floors, including any structure parking incorporated '.vithin the building envelope, shall
have a front yard not le3s than 25 f-oet in depth, Every plot 3hall have a 3treet side yard
of not less than 20 f.cet depth. There is no 3ide or rear yard setback required for a plot
which is not adjacent to a street or alley. ^ side and rear yard setback of 20 feet is
required when adjacent to a residentially zoned district, street or alley,
2. Those building3 't.'hose total number of stories is between 11 3even and 20
12 floors, including any structure parking incorporated \\'ithin the building envelope,
shall have a front yard not le::;s than 35 feet in depth, Every plot ::;hall have Q street 3ide
yard of not lecs than 35 feet in depth, There ic no 3ide or rear yard setback required f{)r
a plot which i::; not adjacent to a street or alley. ^ side and rear yard setback of 35 Teet
ic required 'Nhen adjacent to a residentially zoned district, street or alley.
3, Those buildings whose total number of stories exceeds 20 floors including
any structure parking incorporated within the building envelope, shall have a front yard
not less than 45 feet in depth, Every plot shall have a street side yard of not le3s than
45 feet in depth, There is no cide or rear yard ::;etback required for a plot which is not
adjacent to a street or alley, ^ side and rear yard setback of 45 feet is requiretj when
adjacent to a residentially zoned district, street or alley.
f, Development and redevelopment shall be subiect to the criteria set out in this
Section,
(e) Office Park (OP) District, This district is intended to provide for high quality, semi-
professional and professional offices in a campus setting reflecting creative design and
environmentally compatible use of space and perimeter buffer areas. This zoning
district may be applied to land designated Business and Office and Industrial and Office
on the City's Future Land Use Map, however, the uses within this district shall be
consistent with, but may be more restrictive than, the corresponding Business and
Office and Industrial and Office category permitted uses,
(4) Site development standards,
b, Maximum height: No building or structure, or part thereof shall be erected to a height
exceeding ten stories or 476 100 feet overall maximum height, including structure.
parking. For purpose::; of. thi3 paragraph b" structurc parking shall not be counted in
computing number of storie3 but shall be counted in computing overall maximum
Ordinance No, 2006-
Page 15
height.
1, For all buildings: Any structure parking serving the primary use on the site shall
be incorporated into the building envelope and shall be compatibly designed, Such
parking structure shall comply with all minimum setback and buffer yard requirements.
2, For thane buildings '.'lith zero 33 percent of the required parking located within a
parking structure: The floor area ratio shall be 0.40 at one story and shall be increaeed
by 0.11 for each additional story, The total lot coverage permitted for all buildings on
the site shall not exceed 40 percent of the total lot area.. However, if structure parking
- le'lel(s) ie/are counted tmcvarda calculation of the floor area ratio then the tutal lot
coverage permitted for all buildings on the site shall not exceed 38 percent of the total
lot area,
3, For those buildings '.vith 33 percent 66 percent of the required parking located
within a parking structure: The floor area ratio shall be 0.40 at one story and ehall be
increased by 0.11 for each additional story, The total lot coverage permitted for all
buildings on the site shall not exceed 40 percent of the total lot area, However, if
structure parking level(s) is/arc counted tmvards calculation of the floor area ratio then
the total lot co'.'erage permitted for all buildingc on the site shall not exceed 35 percent
of the total lot area,
4, For thoce buildings 'Nith 66 percent 100 percent of the required parking located
with a parking structure: The floor orca ratio shall be 0.40 at one story and shall be
increased by 0.11 for each additional story. The total lot coverage permitted for all
buildingn on the aite shall not exceed 45 percent of the total lot area, However, if
structure parking levol(a) is/are counted to~vards calculation of the floor area ratio then
the total lot coverage permitted for all buildings on the site shall not exceed 35 percent
of tho total lot area,
2, The floor area ratio shall be 0.40 at one story and shall be increased by 0,11 for
each additional stOry, Structure parking shall not count as part of the floor area, but
shall be counted in computing buildinq heiaht. The total lot coveraae permitted for all
buildings on the site shall not exceed 40 percent of the total lot area, The floor area
ratio shall not exceed 2,0 for all buildinas in this district in conformance with the
Comprehensive Plan,
d, Setbacks: No parking areas shall be located within 30 feet of any residentially zoned
property or within ten feet of any street line, For purposes of this paragraph d"
structure parking incorporated within thc building envolope ahall count tmvard the
Ordinance No, 2006-
Page 16
number of ~tories.
Front Yard: not less than 50 feet in depth.
Street Side Yard: not 1ess'than '1-S-feet in depth
Rear Yard: not less than 25 feet in depth, Adiaeent to any RS districts, the rear
yard setback shall be 30 feet in depth,
1, Those buildings who~e total number of storie~ i::; between zero and ten floor~,
including any structure parking incorporated within the building envelope, chall have a
front yard not le~~ than 50 feet in depth, Every plot shall have a street side yard of not
less than 15 feet depth, Every plot upon which a structure is hereafter erected shall
have a minimum rear yard of 25 feet. ^djacent to any RS di~tricts the ~etbacl< ~hall be
30 feet.
- - 2, Those buildings \."ho~e total number of ~toriec exceed~ ten floor~, including
any structure parking incorporated within the building envelope, ~hall have n front yard
not le~s than 50 feet in depth, E'Jery plot shall have a street side yard of not le~~ than
25 feet in depth. E'ie!)' plot upon '....hich a structure i::; hereafter erected ~hall have a
minimum rear yard of 25 feet. ^djacent to any RS districts the setback shall be 35 feet.
3, Those building~ '.vhose total number of stories exceeds 20 floor~ including
any structure parking incorporated within the building envelope, shall have a front yard
not le~s than 45 feet in depth, Eve!)' plot ~hall have a street side yard of not less than
45 feet in depth, There i::; no side or rear yard setback required for a plot which i~ not
adjacent to a street or alley, ^ side and rear yard setback of 45 feet is required when
adjacent to a residentially zoned district, street or alley.
e, Minimum open space: Minimum open space shall be 22 percent of the net lot area.
Landscaped open space may include entrance features, passive recreational uses
and/or pedestrian walkways, This minimum requirement may also include 50 percent of
roof decks and other above grade surfaces which are provided and maintained for the
common benefit of all occupants of the building, Water bodies may be used as part of
the required landscaped open space but such water areas shall not be credited for
more than 20 percent of the required open space,
1, Those buildingG whose total number of stories is bet\veen zero and ten floors,
,including any ~tructured parking incorporated within the building envelope, ~hall have a
minimum open space of 22 percent of the net lot' area, If ~tructure parking level( ~)
i~/are counted towards calculation of the floor area ratio, then the total minimum
landscaped open space required shall be 25 percent of the total lot area.
2, Those buildings whoGe total number of Gtories exceed::; ten floor~, including any
structured parking incorporated within the building envelope, shall have a minimum
open space of 25 percent of the net lot area, If structure parking le'lel(s) is/arc counted
toward~ calculation of the floor area ratio, then the total minimum landscaped open
Ordinance No, 2006-
Page 17
space required shall be 28 percent of the total lot area.
g. Development and redevelopment shall be subiect to the criteria set out in this
Section,
(f) Medical Office (MO) District. This district is intended to provide for medical offices
and other uses supporting the medical profession associated with the hospital. This
zoning district may be applied to land designated Business and Office on the City's
Future Land Use Map, however the uses within this district shall be consistent with, but
may be more restrictive than, the corresponding Business and Office category
permitted uses,
(2) Conditional Use. The following uses if first approved as-a conditional use:
b. Multi-family residential uses with a maximum density of 35 dwelling units per gross
acre,
(4) Site development standards.
b, Maximum height: No building or structure, or part thereof shall be erected to a height
exceeding teA twelve stories, or 476 120 feet overall maximum height, including
structure parking, unless otherwise specified in this section, For purposes I of this
paragraph b., structure parking shall not be counted in computing number of ~tories but
shall be counted in computing overall maximum height.
c, Setbacks: No parking areas shall be located within 30 feet of any residentially zoned
property or within ten feet of any street line, For purposes of this paragraph c.,
structure parking incorporated within the building envelope shall count toward the
number of stories.
Front yard: not less than 50 feet in depth,
Street Side yard: not less than 20 feet in depth.
Rear yard: not less than 25 feet in depth,
1, Tho~e buildings '....hose total number of stories is between zero and ten floors,
including any structure parl(ing incorporated within the building envelope, shall have a
front yard not le~s than 50 feet in depth, Every plot shall have a street side yard of not
less than 20 feet in depth, Every plot upon which a ~tructure i~ hereafter erected shall
have a minimum rear yard of 25 feet.
2, Tho~e building~ '::hose total number of ~tories is beN/een 11 and 20 floor~,
including any structure parking incorporated within the building envelope, shall have a
Ordinance No. 2006-
Page 18
front yard not Ic::;::; than 50 feet in depth, Every plot shall have a street side yard of not
less than 30 feet in depth, Every plot upon which a structure is hereafter erected shall
hove 0 minimum rear yard of 30 foot.
3, Those buildings whose total numbor of stories exceed::; 20 floors, including
any ::;tructure parking incorporated within the building on'Jolopo, sholl hove a front yard
not less than 65 foet in depth, Every plot sholl hove 0 street ::;ide yard of not less than
45 f-cet in depth. Evory plot upon 'Nhich 0 structure is hereafter erected sholl ha'y'e 0
minimum rear yard of 45 fect.
4..L For those properties lying between NE 206 Street to the south, NE 209
Street to the north, NE 28 Avenue to the east and East Dixie Highway to the west, the
following standards shall apply:
a, No parking areas shall be located within 30 feet 'of any residentially zoned
property of within ten feet of any street line.
b. Minimum front yard setback shall be ten feet in depth for the first two stories
of the structure and 15 feet in depth for any additional stories,
c. Minimum street side yard setback shall be ten feet in depth for the first two
stories and 15 feet for additional stories.
d, Minimum rear yard setback shall be ten feet in depth, except that the
minimum yard setback from Biscayne Boulevard in this district shall be 25 feet in depth,
d, Floor area ratio and lot coverage and minimum landscaped open space
requirements: For purposes of thi::; paragraph d" ::;tructure parking sholl not count os
port of the floor area. but may be counted toward calculation of the floor aroa ratio,
1, For all buildings: Any structure parking serving the primary use on the site shall
be incorporated into the building envelope and shall be compatibly designed, Such
parking structure shall comply with all minimum setback and buffer yard requirements,
2. For those buildings with zero 33 percent of tho required parking located 'Nithin 0
parking structure: The floor area ratio sholl be 0.40 at one story and sholl be increased
by 0,11 for each additional story, The total lot coverage permitted for 011 buildings on
tho ::;ite shall not exceed 40 percent of the totollot area. The total minimum landscaped
open space required sholl be 33 percent of the total lot area, HO'Never, if structure
parking level(s) is/are counted toward::; calculation of the floor area ratio then the total
lot coverage permitted for 011 buildings on tho site sholl not exceed 38 percent of the
total lot mea, ^dditionally, the total minimum landscaped open space required shall be
35 percent of the total lot area,
Ordinance No, 2006-
Page 19
3. For those buildings '.vith 33 percent 66 percent of the required parking located
'Nithin a parking 3tructure: The floor area ratio shaU be 0.40 at one stOI)' and shall be
increa3ed by 0.11 for each additional story, The total lot coverage permitted for all
buildings on the 3ite chall not exceed 40 percent of the total .Iot area, The total
minImum landscaped open 3pace required shall be 36 percent of the total lot area,
However, if structure parking levol(:::;) islare counted to\'Jard:::; calculation of the floor area
ratio then the total lot coverage permitted for all building3 on the site shall not exceed
35 percent of the total lot area, ^dditionally, the total minimum land:::;caped open space
required shall be 37 percent of the total lot area.
4. For those buildings with 66 percent 100 percent of the required parking located
\.vith a parking 3tructure: The floor area ratio :::;hall be 0.40 at one story and shall be
increased by 0,11 for each additional 3tOl)', The total lot coverage permitted for all
buildings on the 3ite 3hall not exceed 45 percent of tha total lot area, The total
minimum landscaped' open space required shall be 30 percent of the total lot area,
Hm.'.'ever, if structure parl<ing levol(s) is/arc counted to'v\'ards calculation of the floor area
ratio then the total lot coverage permitted for all building:::; on the cite shall not exceed
35 percent of the total lot area, /\dditionally the total minimum landscaped open space
required shall be 40 percent of the total lot area.
e 2. For those properties lying between NE 206 Street to the south, NE 209 Street
to the north, NE 28 Avenue to the east and East Dixie Highway to the west, the
following standards shall apply: The maximum floor area ratio shall be 0.40 at one
story and shall be increased by 0,11 for each additional story, The total lot coverage
permitted for all buildings on the site shall not exceed 40 percent of the total lot area,
The minimum landscaped open space required Shall be 33 percent of the total lot area.
3, Minimum landscaped open space required shall be 33 percent of the total lot
area, The floor area ratio shall be 0.40 at one stOry and shall be increased by 0,11 for
each additional story, Structure parkinq shall not count as part of the floor area, but
shall be counted in computing building height. The total lot coveraqe permitted for all
buildings on the site shall not exceed 40 percent of the total lot area, The floor area
ratio shall not exceed 2.0 for all buildings in this district in conformance with the
Comprehensive Plan.
f, Development and redevelopment shall be subiect to the criteria set out in this
Section,
Sec, 31-145, Town Center Zoning Districts,
(a) Purpose. The purpose and intent of these districts is to provide suitable sites for the
development of structures combining residential and commercial uses in a well planned
and compatible manner, The uses within these districts shall be consistent with, but
Ordinance No, 2006-
Page 20
may be more restrictive than, the corresponding Town Center Land Use Category
permitted uses. Residential densities shall not exceed 25 units per gross acre and
nonresidential densities shall not exceed a floor area of 2,0,
(b) Town Center District (TC1), The following regulations shall apply to all TC1 Districts: ,.
(3) Conditional uses permitted. The following uses may be established if first approved
as a conditional use:
a, Those uses permitted in the RMF3 District.
b. Those uses permitted in the B 1 District.
c. Those uses permitted in the B1 District with increased floor area,
€-; d, Sale of alcoholic beverages for on-premises consumption except with meals,
€h. e, Uses that exceed the height limitations, including par-king structures,
e:- 1. Aboveground storage tanks, Aboveground storage tanks (AST) only as an
accessory use and only for the purpose of storing fuel for emergency generators, ASTs
must conform to the following requirements:
1, Be of 550 gallons capacity or less,
2. Be installed and operated under a valid permit from the Miami-Dade County
Department of Environmental Resources Management.
3. Be fully screened by a masonry or concrete wall with a self-closing and locking
metal door or gate. Such wall shall be landscaped in accordance with the City's
Landscape Code, '
4, Be located in a manner consistent with the site development standards of the
TC1 zoning district.
5, Installation of any AST shall require a building permit from the City, Application
for building permit shall be accompanied by a site plan indicating the location of
the AST relative to property lines, the primary structure served by the AST, any
other structures within 300 feet as well as a landscape plan prepared by a
Florida licensed architect or landscape architect and other supporting
documentation as deemed necessary by the City Manager or designee,
f:. Q,. Floor areas that are less than the minimum floor areas required by the
provisions of 31-145(5)g hereof,
!T- he Allocations of interior spaces other than as set forth in section 31-145(b )(7)
hereof.
ft. L Structured parking that is not incorporated into the building envelope of a
primary use structure, as required by section 31-145(9) hereof,
f:. 1 Structured parking that can be seen from a primary use building and that does
not have the area of the top level landscaped and/or decoratively paved in order to
Ordinance No, 2006-
Page 21
provide amenity areas for building occupants, as required by section 31-238 of the
Code,
t. & Driveways for mixed-use projects exceeding 20 acres in size with a separation
of lesstha"n 150 -feet of landscaped frontage as long as it is determined, as part of site
plan review that:
1, Landscaping for the total project site exceeds the minimum requirements of the
Code, and;
2. Traffic studies indicate that a lesser distance between driveways does not
constitute a safety hazard to either vehicular or pedestrian traffic,
*.1 Off street parking that does not meet the requirements of section 31-171(b) or
(d) of this Code,
tm, All uses permitted in the CF District.
m, /\11 u::;cs pcrmitted a::; acces~ory use::; in the CF, Community Facilitie::; District
(10) Design Standards, All development in the TC1 zoning district shall substantially
comply with the applicable "Town Center Design Guidelines" as provided by the City
Manager.
(c) Town Center Marine District (TC2). The following regulations shall apply to all TC2
Districts,
(12) Desion Standards, All development in the TC2 zoning district shall substantially
comply with the applicable "Town Center Desion Guidelines" as provided by the City
Manager,
Section 3. Severability. The provisions of this Ordinance are declared to be
severable and if any section,sentence, clause or phrase of this Ordinance shall for any
reason be held invalid or unconstitutional, such decision shall not affect the validity of
the remaining sections, sentences, clauses, and phrases of this Ordinance, but they
shall remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any part.
Section 4. Inclusion in the Code. It is the intention of the City Commission,
Ordinance No. 2006-
Page 22
and it is hereby ordained that the provisions of this Ordinance shall become and be
made a part of the Code of the City of Aventura; that the sections of this Ordinance may
be renumbered or re...lettered to accomplish such intentions, and that the word
"Ordinance" shall be changed to "Section" or other appropriate word,
Section 5. Effective Date. This Ordinance shall be effective immediately
upon adoption on second reading, This Ordinance shall not conflict with or be applied
in any manner that would conflict with any waiver granted by the City Commission
pursuant to Section 3 of Ordinance No, 2005-07, Accordingly, the previously existing
Land Development Regulations shall control any development or redevelopment that is
authorized by a Resolution granting any such waiver.
The foregoing Ordinance was offered by Commissioner Stern, who moved its
adoption at first reading. This motion was seconded by Commissioner Auerbach, and
upon being put to a vote was as follows:
Commissioner Bob Diamond yes
Commissioner Zev Auerbach yes
Commissioner Harry Holzberg yes
Commissioner Michael Stern yes
Commissioner Luz Weinberg yes
Vice Mayor Billy Joel yes
, Mayor Susan Gottlieb yes
The foregoing Ordinance was offered by
adoption at second reading. T~is motion was seconded by
upon being put to a vote was as follows:
I who moved its
and
Commissioner Bob Diamond
Commissioner Zev Auerbach
Commissioner Harry Holzberg
Commissioner Michael Stern
Commissioner Luz Weinberg
Vice Mayor Billy Joel
Mayor Susan Gottlieb
Ordinance No, 2006-
Page 23
PASSED on first reading this 10th day of January, 2006,
,
PASSED AND ADOPTED on second reading this 7th day of February, 2006,
SUSAN GOTTLIEB, MAYOR
ATTEST:
TERESA M, SOROKA, MMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
This Ordinance was filed in the Office of the City Clerk this _ day of February, 2006,
~~
R~~,.
RESOLUTION NO, 2006-_.1
RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF A VENTURA, FLORIDA, CONCERNING
MORATORIUM WAIVER APPLICATION OF
SHEFAORfI'ARRAGON, LLLP, PERTAINING TO
LINCOLN POINTE PROPERTY CONSISTING OF 8.77 ::I:
ACRES LOCATED AT 17900 NORTHEAST 31ST COURT
IN THE CITY OF A VENTURA; GRANTING
APPLICATION FOR WAIVER OF MORATORIUM
ORDINANCE NUMBER 2005-07, SO AS TO PERMIT
REDEVELOPMENT OF THE PROPERTY TO A PROJECT
CONSISTING OF A TOTAL OF FOUR HUNDRED SIXTY
(460) DWELLING UNITS, INCLUDING A TWENTY EIGHT
(28) STORY RESIDENTIAL TOWER WITH AN OVERALL
HEIGHT OF NOT GREATER THAN THREE HUNDRED
FIFTEEN (315') FEET; PROVIDING FOR AN EFFECTIVE
DATE
y,;u;tl-Oh
fe..r.i) M.UJ
WHEREAS, pursuant Section 3 of Ordinance No, 2005-07 (the "Moratorium
Ordinance") Shefaorffarragon, LLLP (the "Owner" or "Applicant") has applied for a waiver of
the Moratorium Ordinance (the "Waiver") in order to permit redevelopment of Lincoln Pointe
(the "Property"), approximately 8.77 acres located at 17900 N.E. 31 st Court, A ventura; and
WHEREAS, following proper notice, the City Commission has held a public hearing on
the Waiver Application, as provided by the Moratorium Ordinance and the City's Land
Development Regulations; and
WHEREAS, the City Commission hereby finds that the grant of the Waiver is consistent
with the Comprehensive Plan of the City of Aventura; and
WHEREAS, the City Commission, in accordance with the procedures and criteria
provided by Section 3 "Waivers" of the Moratorium Ordinance, hereby finds and detennines that
1/ This is a proposed Resolution, Accordingly, none of the proposed findings or conclusions stated herein shall be
of any force or effect, unless and until the Resolution is adopted by the City Commission, Upon adoption of this
Resolution, this footnote shall be deleted,
Resolution No. 2006-_
Page 2
the criteria of Section 3 of the Moratorium Ordinance h,ave been met by the Applicant, to the
extent that the Waiver is granted herein.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS:
Section 1. Recitals AdoDted, That each of the above stated recitals is hereby adopted
and confirmed,
Section 2. Waiver Granted. That pursuant to Section 3 of the Moratorium Ordinance,
the application for Waiver is hereby granted for the Property which is described on Exhibit "An
attached hereto, subject to the condition that the redevelopment shall be accomplished in
accordance with the obligations and conditions which have been imposed upon Applicant, in the
event of this Waiver being granted, pursuant to the Applicant-City Settlement Agreement of
I
January 19,2006, and subject to the condition that the Applicant shall prepare and present to the
City on or before March 15, 2006, an alternative building layout design, for acceptance and
approval at the City Commission's discretion, which provides for not more than four hundred
sixty (460) dwelling units, as authorized herein, but which includes a reconfiguration of the
residential Tower to a Tower building width which is generally not to exceed 400 feet and to a
height not to exceed thirty five (35) stories. If the Commission does not approve said alternate
building layout design within thirty (30) days of submittal, the initial Tower design which is set
forth in the Waiver Application shall be applicable. In considering said alternative building
layout design for the purpose of determining whether the above-described reconfiguration should
be approved, the City Commission shall utilize the public hearing procedures which are provided
2
Resolution No. 2006-
Page 3
by Section 31-71 of the City Code, and shall make said cletermination by subsequent Resolution
of the City Commission. The subsequent Resolution of the City Commission shall not exceed
the scope of the purpose of the consideration of the alternative building layout design.
Section 3, ImDlementation, That the City Manager is hereby authorized to cause the
issuance of permits in accordance with the approvals and conditions herein provided, and
pursuant to the City's Land Development Regulations in effect and applicable as of the date of
this resolution without the application of the moratorium, and to indicate such approvals and
conditions upon the records of the City, and to take any action which is necessary to implement
this Resolution.
Section 4. Effective Date. That this Resolution shall become effective immediately
upon adoption hereof.
The foregoing Resolution was offered by Commissioner
,who
moved its adoption. The motion was seconded by COmmissioner
, and
upon being put to a vote, the vote was as follows:
Commissioner Zev Auerbach
Commissioner Bob Diamond
COmmissioner Harry Ho1zberg
Commissioner Michael Stem
Commissioner Luz Urbaez Weinberg
Vice Mayor Billy Joel
Mayor Susan Gottlieb
3
Resolution No. 2006-
Page 4
PASSED AND ADOPTED this 2nd day of February, 2006.
Attest:
Teresa M. Soroka, MMC
City Clerk
Approved as to Fonn and Legal Sufficiency:
City Attorney
Susan Gottlieb, Mayor
Filed in the Office of the City Clerk this _ day of February 2006.
City Clerk
-----......_,....._""'---,...:-...-........"'~
4
RESOLUTION NO. 2006-
F~\ €- ~ ~lll(1 ~
~/'}-'o ~
~
RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF A VENTURA, FLORlJ)A, CONCERNING
MORATORIUM WAIVER APPLICATION OF
SHEFAOR/TARRAGON, LLLP, PERTAINING TO
LINCOLN POINTE PROPERTY CONSISTING OF 8.77 :f:
ACRES LOCATED AT 17900 NORTHEAST 31ST COURT
IN THE CITY OF A VENTURA; GRANTING
APPLICATION FOR WAIVER OF MORATORIUM
ORDINANCE NUMBER 2005-07, SO AS TO PERMIT
REDEVELOPMENT OF THE PROPERTY TO A PROJECT
CONSISTING OF A TOTAL OF FOUR HUNDRED SIXTY
(460) DWELLING UNITS, INCLUDING A TWENTY
EIGHT (28) STORY RESIDENTIAL TOWER WITH AN
OVERALL HEIGHT OF NOT GREATER THAN THREE
HUNDRED FIFTEEN (315') FEET; PROVIDING FOR AN
EFFECTIVE DATE
WHEREAS, pursuant Section 3 of Ordinance No. 2005-07 (the "Moratorium
Ordinance") Shefaor/Tarragon, LLLP (the "Owner" or "Applicant") has applied for a waiver
of the Moratorium Ordinance (the "Waiver") in order to permit redevelopment of Lincoln
I
Pointe (the "Property"), approximately 8,77 acres located at 17900 N.E. 31st Court, Aventura;
and
WHEREAS, following proper notice, the City Commission has held a public hearing
on the Waiver Application, as provided by the Moratorium Ordinance and the City's Land
Development Regulations; and
WHEREAS, the City, Commission hereby finds that the grant of the Waiver IS
consistent with the Comprehensive Plan of the City of A ventura; and
II This is a proposed Resolution, Accordingly, none of the proposed [mdings or conclusions stated herein shall
be of any force or effect, unless and until the Resolution is adopted by the City Commission, Upon adoption of
this Resolution, this footnote shall be deleted,
Resolution No, 2006-
Page 2
WHEREAS, the City Commission, in accordance with the procedures and criteria
,
provided by Section 3 "Waivers" of the Moratorium Ordinance, hereby fmds and determines
that the criteria of Section 3 of the Moratorium Ordinance have been met by the Applicant, to
the extent that the Waiver is granted herein.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted.
That each of the above stated recitals is hereby
adopted and confirmed,
Section 2. Waiver Granted. That pursuant to Section 3 of the Moratorium
Ordinance, the application for Waiver is hereby granted for the Property which is described on
Exhibit "A" attached hereto, subject to the condition that the redevelopment shall be
accomplished in accordance with the obligations and conditions which have been imposed upon
Applicant, in the event of this Waiver being granted, pursuant to the Applicant-City Settlement
Agreement of January 19, 2006, and subject to the condition that the Applicant shall prepare
and present to the City Manager on or before March 15, 2006, an alternative building layout
design, for acceptance and approval at the City Commission's discretion, which provides for
not more than four hundred sixty (460) dwelling units, as authorized herein, but which
includes a reconfiguration of the residential Tower to a Tower building width which is
generally not to exceed 400 feet and to a height not to exceed thirty five (35) stories, If the
Commission does not approve said alternate building layout design within thirty (30) days of
submittal, the initial Tower design which is set forth in the Waiver Application shall be further
2
Resolution No, 2006-
Page 3
revised to meet the concerns of the City Commission and the initial Tower design of
,
approximately 900 feet in width shall not be used. In considering said alternative building
layout design for the purpose of determining whether the abov~described reconfiguration
should be approved, the City Commission shall utilize the public hearing procedures which are
provided by Section 31-71 of the City Code, and shall make said determination by subsequent
Resolution of the City Commission, The subsequent Resolution of the City Commission shall
not exceed the scope of the purpose of the consideration of the alternative building layout
design,
Section 3. Implementation. That the City Manager is hereby authorized to cause the
issuance of permits in accordance with the approvals and conditions herein provided, and
pursuant to the City's Land Development Regulations in effect and applicable as of the date of
this resolution without the application of the moratorium, and to indicate such approvals and
conditions upon the records of the City, and to take any action which is necessary to implement
this Resolution,
Section 4. Effective Date. That this Resolution shall become effective immediately
upon adoption hereof,
The foregoing Resolution was offered by Commissioner
moved its adoption, The motion was seconded by Commissioner
upon being put to a vote, the vote was as follows:
, who
, and
Commissioner Zev Auerbach
Commissioner Bob Diamond
Commissioner Harry HoIzberg
Commissioner Michael Stem
Commissioner Luz Urbaez Weinberg
3
Resolution No, 2006-
Page 4
Vice Mayor Billy Joel
Mayor Susan Gottlieb
4
Resolution No, 2006-
Page 5
PASSED AND ADOPTED this 2nd day ofFebruaiy, 2006,
Attest:
Susan Gottlieb, Mayor
Teresa M. Soroka, MMC
City Clerk
Approved as to Form and Legal Sufficiency:
City Attorney
Filed in the Office of the City Clerk this _ day of February 2006,
City Clerk
5