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HomeMy Public PortalAbout2007 Voluntary Covenant.tifVOLUNTARY COVENANT SBR-Fortune Associates, LLLP, a Florida limited liability limited partnership, ("Owner") hereby voluntarily makes, declares, and imposes on the property described below (the "Property"), these covenants running with the title to the land, which shall be binding on the Owner, its heirs, successors and assigns, personal representatives, mortgagees, lessees, and against all persons claiming by, through, or under them until such time as this instrument is released in writing as hereinafter provided, WHEREAS, Owner holds the fee simple title to the property in Dade County, Florida, described as follows See Exhibit "A" WHEREAS, Owner intends to develop the Property with 165 residential condominium units and resort facilities, including a spa, restaurant, and beach bar and grill (the "Project"), and WHEREAS, the Owner has filed an application for site plan approval with the Village of Key Biscayne (the "Village"), which application has been designated with Public Hearing No AP -17 (the "Application"), and WHEREAS, the Owner in a spirit of community support and as a gesture of good will has offered to make certain voluntary donations and other commitments for the benefit of the Village and the general public, all as more particularly set forth in this Voluntary Covenant NOW THEREFORE, in consideration of the premises and as an inducement for the approval of the Application, the Owner covenants as follows 1 CONTRIBUTIONS The Owner voluntarily commits to make the following monetary contributions to the Village 1 MIAMI 1299625 10 7712926862 4/16/07 1 1 Local Park and Recreation Contribution The Owner shall contribute the sum of $7,000,000 00 to the Village to be used in its sole and absolute discretion for park and recreation purposes for the residents of Key Biscayne Said contribution shall be made prior to or simultaneously with the issuance of the first Certificate of Occupancy issued for the Property or other approval allowing occupancy of the Project, however, in no event will said contribution be made later than four (4) years from the Effective Date under Section 3 of this Covenant so long as at the time there is no pending judicial or administrative challenge to any development approval or development permit issued for any principal building or principal component of the Project Further, if there are judicial or administrative challenges filed against the permits or approvals for the major components of the Project after the Effective Date said four (4) year timeframe shall be tolled during the pendency of said challenges 1 2 Community Center The Owner further agrees that it shall contribute $1,500,000 00 to the Village to be used in its sole discretion for the (i) acquisition of land, or (ii) design and physical construction of improvements to the Village's Community Center or facilities directly related thereto These funds shall be payable to the Village prior to or simultaneously with the issuance of the first full building permit for the development of the Project, not including demolition permits or site work permits) (the "First Building Permit "), however, in no event will said contribution be made later than four (4) years from the Effective Date under Section 3 of this Covenant, so long as at the time there is no pending judicial or administrative challenge to any development approval or development permit issued for any principal building or principal 2 MIAMI 1299625 10 7712926862 4/16/07 component of the Project Further, if there are judicial or administrative challenges filed against the permits or approvals for the major components of the Project after the Effective Date said four (4) year timeframe shall be tolled during the pendency of said challenges (1) 1 3 Holiday Colony Sewer Installation (1) The Owner agrees that it shall contribute $1,500,000 00 to the Village to be used in its sole discretion for the installation, improvement, or maintenance of sewers in the Holiday Colony neighborhood located between Crandon Boulevard and the Property Said contribution to be made prior to the issuance of the First Building Permit, however, in the event that the Village is prepared to commence construction of the Holiday Colony sewer facilities prior to the issuance of the First Building Permit, the Owner agrees to advance said contribution to the Village upon 90 days written notice from the Village Should this advance payment be made and the development of the Project not proceed for any reason, the amount of the advanced contribution shall remain as a credit attributable to the Property to be applied to future or other permit fees due and owing to the Village for the future development of the Property 2 ALTERNATE SITE PLAN The Owner hereby acknowledges that the Village intends to consider abandonment and vacation a portion of Ocean Drive adjacent and contiguous to the Property, specifically the west fifty feet (50') of said public right-of-way (the "Excess ROW") The Owner voluntarily agrees that if the Village vacates the Excess ROW on or before December 4, 2007, the Owner will develop the Property substantially in accordance with the 3 MIAMI 1299625 10 7712926862 4/16/07 plans entitled Sonesta Resort, Alternate Site Plan, dated April 13, 2007 and consisting of 6 sheets, prepared by Glover, Smith, Bode Inc 3 EFFECTIVENESS The obligations and commitments of the Owner under this Covenant shall become effective and binding upon the expiration of all appeal periods available for any challenge to the approval of the Application, however, in the event that judicial or administrative proceedings ensue which challenge the approval of the Application, the terms and conditions contained herein shall not become effective until final adjudication, upholding the approvals, or the issuance of the first full building permit (not including demolition permits) for development of the Project should the Owner choose to seek issuance of such permits prior to final adjudication For the purposes of this Section and the Covenant, the date upon which all applicable appeal periods have expired or the date of final adjudication upholding the approval of the Application shall be deemed the "Effective Date" 4 TERM OF DECLARATION The provisions of this instrument shall become effective in accordance with the terms contained herein Upon the expiration of all applicable appeal periods so that the approval of the Application is final, this Covenant shall be recorded in the public records of Miami -Dade County, Florida, and shall be a covenant running with the land binding upon the Owner and its successors and assigns, and shall continue in effect for a period of thirty (30) years after the date of such recordation, or until all of the obligations and conditions of this covenant have been satisfied, or until the final expiration of the Approval of the Application without the development of the Project proceeding, whichever comes first The Village agrees to release this Covenant in writing upon the satisfaction of the obligations or the final expiration of the Approval of the Application in writing 4 MIAMI 1299625 10 7712926862 4/16/07 5 MODIFICATION The provisions of this instrument may be amended, added to, derogated, deleted, modified, or changed from time to time by recorded instrument executed by the then Owner or a majority of the owners of all of the Property, or in the event a property owners association or other similar entity has been created by that entity, provided that such modification, amendment, or release is also approved by the Village of Key Biscayne Council, after public hearing Should this Voluntary Covenant be so modified, amended, or released, the Village Manager, or his/her successor, shall forthwith execute a written instrument effectuating and acknowledging such modifications, amendment, or release 6 ENFORCEMENT Enforcement shall be by action at law or in equity against any parties or persons violating or attempting to violate any covenants, either to restrain violation or to recover damages The prevailing party in the action or suit shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the court may adjudge to be reasonable for the services of his attorney 5 MIAMI 1299625 10 7712926862 4/16/07 IN WITNESS WHEREOF, these presents have been executed this /co day of April, 2007 SBR-FORTUNE ASSOCIATES, LLLP, a Florida limited liability limited partnership By Fortune KB GP, LLC a Florida limited liability company, General Partner STATE OF FLORIDA COUNTY OF MIAMI-DADE ) ) SS By Fortune International Manage nt Inc a Florida ora> n, its By Name `1✓dgarto Defortuna Title Preside t Date April_ c2007 S'gna ure of Applicant Sworn to (or affirmed) and subscribed before me this , 200 7 , by rk. e Tc7,Z..T-c) making‘statement) day of name of person re of Nota ublic - S .te •f Florida LADre-IL( Print, Type, or Stamp Commissioned Name of Notary Public OR Produced Identification a ion Produced 6 ,4.;1r 1,:# Sudian Perez cat `A -Commission #00295584 a, o��'`:Expires MAR 02 2008 ww A'cny'JrnARYcom MIAMI 1299625 10 7712926862 4/16/07 Village Clerk Village Clerk, of the Village of Key Biscayn Florida Driver's Licenses as identification 7 MIAMI 1299625 10 7712926862 4/16/07 ACKNOWLEDGMENT AND ACCEPTANCE BY VILLAGE OF KEY BISCAYNE KNOW ALL MEN BY THESE PRESENTS that The Village of Key Biscayne acknowledges and accepts the foregoing Voluntary Covenant, and each and all of the terms and provisions contained therein, made by SBR- ASSO TES, LLLP, a Florida limited liability limited partnership dated /(0 AV and attached hereto DATED this:›WaY of STATE OF FLORIDA COUNTY OF DADE (az 7 VILLAGE OF KEY BISCAYNE The foregoin,g inst ent was acknowledged before me this o4�- day o 2007, b O&I/)6 e e Village of K ed to b *S O»t86z y.���' g ho are personally known t me, or produced N • ARY PUBLIC ay,e/AM /ieS'?Rere. Typed or Printed Name p'• IAM HES I HEPO *� S SC ION # DD 483059 4 EXPIRES October 18 2009 pry Bonded Thru Notary Public Underwriters 1 EXHIBIT "A" LEGAL DESCRIPTION PARCEL I ALL THAT PIECE, PARCEL OR LOT OF LAND SITUATE, LYING AND BEING IN THE SW 1/4, SECTION 32 AND FRACTIONAL SECTION 33, TOWNSHIP 54 SOUTH, RANGE 42 EAST, IN THE CITY OF KEY BISCAYNE, COUNTY OF MIAMI-DADE, STATE OF FLORIDA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS COMMENCE AT THE S W CORNER OF TRACT 6, SUBDIVISION OF A PORTION OF MATHESON ESTATE ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 46 PAGE 86 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, THENCE RUN ALONG THE SOUTH LINE OF TRACT 6, EAST FOR A DISTANCE OF 1200 00 FEET TO THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL OF LAND, SAID POINT OF BEGINNING ALSO BEING THE S E CORNER OF THE PLAT OF HOLIDAY COLONY AS RECORDED IN PLAT BOOK 50 AT PAGE 87, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, THENCE CONTINUE EAST FOR A DISTANCE OF 761 0 FEET MORE OR LESS TO THE MEAN HIGH WATER LINE OF THE ATLANTIC OCEAN, THENCE MEANDER NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY ALONG THE MEAN HIGH WATER LINE OF THE ATLANTIC OCEAN FOR A DISTANCE OF 518 3 FEET MORE OR LESS TO A POINT LYING 500 00 FEET NORTH OF THE SOUTH LINE OF TRACT 6 EXTENDED EAST AS MEASURED AT RIGHT ANGLES, THENCE RUN WEST ALONG A LINE 500 00 FEET NORTH OF, AND PARALLEL TO, THE SOUTH LINE OF SAID TRACT 6, AS MEASURED AT RIGHT ANGLES, FOR A DISTANCE OF 631 9 FEET MORE OR LESS TO A POINT, THENCE RUN SOUTH 0°38'55" WEST FOR A DISTANCE OF 327 79 FEET TO A POINT, THENCE RUN NORTH 89°24'30" WEST FOR A DISTANCE OF 157 55 FEET TO A POINT OF NON - TANGENCY WITH A CIRCULAR CURVE CONCAVE TO THE WEST, THE CENTER OF WHICH BEARS NORTH 89°51'26" WEST FROM THE AFOREMENTIONED POINT OF NON -TANGENCY, SAID POINT ALSO BEING A POINT ON THE EASTERLY LINE OF BLOCK 5 OF THE PLAT OF HOLIDAY COLONY, AS RECORDED IN PLAT BOOK 50, PAGE 87 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, THENCE RUN SOUTHERLY ALONG THE ARC OF SAID CIRCULAR CURVE HAVING FOR ITS ELEMENTS A CENTRAL ANGLE OF 3°14'04" AND A RADIUS OF 3081 59 FEET FOR A DISTANCE OF 173 96 FEET TO THE POINT OF BEGINNING AND 8 MIAMI 1299625 10 7712926862 4/16/07 PARCEL 2 ALL THAT PIECE PARCEL OR LOT OF LAND SITUATE, LYING AND BEING IN THE SW 1/4, SECTION 32, TOWNSHIP 54 SOUTH, RANGE 42 EAST, IN THE CITY OF KEY BISCAYNE, COUNTY OF MIAMI-DADE, STATE OF FLORIDA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS COMMENCE AT THE SW CORNER OF TRACT 6, SUBDIVISION OF A PORTION OF MATHESON ESTATE ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 46, PAGE 86 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, THENCE RUN ALONG THE SOUTH LINE OF TRACT 6, EAST FOR A DISTANCE OF 1200 00 FEET TO A POINT OF NON -TANGENCY WITH A CIRCULAR CURVE CONCAVE TO THE WEST, THE CENTER OF WHICH BEARS NORTH 86°37'22" WEST FROM THE AFOREMENTIONED POINT OF NON -TANGENCY, SAID POINT ALSO BEING THE SE CORNER OF THE PLAT OF HOLIDAY COLONY, AS RECORDED IN PLAT BOOK 50, PAGE 87 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, THENCE RUN NORTHERLY ALONG THE ARC OF SAID CIRCULAR CURVE, HAVING FOR ITS ELEMENTS A CENTRAL ANGLE OF 3°14'04" AND A RADIUS OF 3081 59 FEET FOR A DISTANCE OF 173 96 FEET TO THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL OF LAND, THENCE CONTINUE NORTHERLY AND NORTHWESTERLY ALONG THE ARC OF SAID CIRCULAR CURVE HAVING FOR ITS ELEMENTS A CENTRAL ANGLE OF 10°46'23" AND A RADIUS OF 3081 59 FEET FOR A DISTANCE OF 579 42 FEET TO A POINT, SAID POINT ALSO BEING A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF EAST DRIVE, THENCE RUN ALONG THE SAID RIGHT WAY LINE, EAST FOR A DISTANCE OF 160 62 FEET TO A POINT OF CURVATURE WITH A CURVE CONCAVE TO THE SOUTHWEST, THENCE RUN ALONG THE ARC OF SAID CURVE HAVING FOR ITS ELEMENTS A CENTRAL ANGLE OF 80°19'47" AND A RADIUS OF 25 00 FEET FOR A DISTANCE OF 35 05 FEET TO A POINT OF COMPOUND CURVATURE WITH A CIRCULAR CURVE CONCAVE TO THE WEST, SAID POINT ALSO BEING A POINT ON THE WESTERLY RIGHT OF WAY LINE OF OCEAN BOULEVARD, THENCE RUN SOUTHERLY ALONG THE SAID WESTERLY RIGHT OF WAY LINE ON THE ARC OF THE CIRCULAR CURVE HAVING FOR ITS ELEMENTS A CENTRAL ANGLE OF 4°03'53" AND A RADIUS OF 3260 29 FEET FOR A DISTANCE OF 231 29 FEET TO A POINT, THENCE LEAVING THE SAID RIGHT OF WAY LINE, RUN WEST 1 87 FEET TO A POINT, THENCE RUN SOUTH 0°38'55" WEST FOR A DISTANCE OF 327 79 FEET TO A POINT, THENCE RUN NORTH 89°24'30" WEST FOR A DISTANCE OF 157 55 FEET TO THE POINT OF BEGINNING 9 MIAMI 1299625 10 7712926862 4/16/07