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HomeMy Public PortalAboutDeclaration of Key Biscayne Hotel & Villas (Tab1).tif-(eSlienLId1 DECLARATION OF RESTRICTIVE COVENANTS IN LIEU OF UNITY OF TITLE MONETARY CONTRIBUTIONS AND PEDESTRIAN EASEMENT Key Biscayne Hotel & Villas Limited Partnership ( Owner ) hereby voluntary makes declares and imposes on the property described below, the 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 herein- after provided WHEREAS Owner holds the fee simple title to the property in Dade County, Florida described in Exhibit 'A attached and incorporated in this instrument (hereinafter referred to as the Property ) and WHEREAS, Owner intends to develop the Property for a hotel residential uses and various ancillary uses and wants to assure Dade County that 1) the development will be built in substantial accordance filth the proffered plans and 2) the representations made by the Owner in connection with the approval of its zoning application (Public Hearing No 89-123) and the issuance of a Development Order approving the development in accordance 41th Section 380 06 of the Florida Statutes will be satisfied and WHEREAS Owner _ntends ro develop the buildings on the Prop- erty in a hotel and condominism format of ownership and/or in two or more phases and WHEREAS, Owner may wish to convey portions of the Property from time to time and may 4ish to offer units as condominiums and is executing this instrument to assure the County that the phased development of the vropert} with future ownership will not violate the Zoning Code or other land use ordinances or regula- tions of Metropolitan Dade County when it is developed Prepared by Kerri L Harsh Esq Greenberg Traurig Hoffman Lipoff, Rosen & Quentel P A 1221 Brickell Avenue Miami Florida 33131 NOW THEREtORE in consideration of the premises Owner nereby agrees as follows Site Plan The Property will be developed In sub- stantlal conformity with the site plan ent_tled Key Biscayne Hotel & Jillas prepared by Edward D Stone Jr and Associates Spillis Candela & Partners, Inc Metric Engineering, Inc Mouriz Salazar Associates, Inc Frizzell Hi -1 Moorhouse Architects CLP of Florida Inc Arch_~ec s and Robert M Swedroe P A Architects consisting of 95 sheets all stamped received by the Building and Zoning Department on August 15, 1989 and the lake excavation plans entitles Key Biscayne Hotel and Villas Proposed Lake Excavation prepared by Metric Engineering, Inc , stamped received by ~ne Building and Zoning Department on August 31 1989 (collectively referred to as -re Plans ) 2 Phased Development If the proper*r _s developea n phases eacn phase 4111 be developed _n slips-ant_al accoraance 4i~n ne s `e plan and all zoning requ_ emer-s Eacn pnase or stage ot ce;elooment when standing ndeceneent_y or _n con-1unc- ~ion 41-h exist-ng, developed cont_guous ondses or stages shall 'nee- all zoning requirements This prcvis on shall rot be sub- Pc- o _a -equest for a variance 3 Reciprocal Easements here -ecessary anc o re extent necessary Owner hereo reser es easements ana Hereby gran*s reciprocal cross-easemer-s ~o he c're s of eacn onase or staae of development in ano cier -he 7rope ~; `or ut_1_t_es .iater and sewer lines common par{_ng are.71 tree s dr_;eways entrance and exits so that the lntegr_ or the development shall be maintained 4 Multiple Ownerships in he e;en. of multiple owner- ship subsequent ~o site plan approval mac' of he subsequent owners mortgagees and other car es ~-erest shall oe pound cv --e -erms prc;isions and cons. _ors = - s nst-_me 5 Homeowner s Association Key Biscayne Hotel and Villas Community Association, Inc has peen created or will be created prior to the con- veyance of any portion of the Property, for the entire develop- ment (total property) as a master association which shall provide for the maintenance of all common areas, certain roadways, cross - easements, and other amenities common to the entire parcel of land (the Property) This instrument shall not however pre- clude individual condominium or associations for or owners of, each phase or stage to maintain their own buildings or other own common areas as long as such associations or owners, or the members of such associations are members of the master asso- ciation and each such condominium or other association is required by this instrument to be members of the master asso- ciation 6 Monetary Fire Service Contribution To help defray the capital costs of future fire service expansion needs bene- fitting the development of the Property Owner shall voluntarily contribute to the Dade County Fire Department the sum of $239 470 00 which represents $160 00 per residential unit and $0 16 per square foot of commercial development on the Property The fire service contribution shall be made in two parts the first payment is due at the time of platting or waiver of plat approval on the Property or any portion thereof and the final payment is due at the time of the ssuance of a building permit for the 693rd hotel room and/or residential unit to be con- structed on the Property The fire service contribution shall be adjusted for cost -of -living charges over time beginning on the day following approval at a public hearing, of the subject application The standard for determining cost -of -living adjust- ments shall be the Fixed -Weighted Price Index for Gross Private Domestic Fixed Investment, Non -Residential ( Deflator ), _ssued quar*erly Dv the Bureau of Cconomic Analysis United States Department of Commerce - 3 7 Cntrance Feature Improvements ;ssoc_ated 4ith Bill 3acgs Cape -lorida State Recreation Area Owner shall ;olun- -ar_ly contribute $140,000 ro be used towards the design and const-uct.on of the improvements on state property at the Bill 3aggs State Park entrance before the issuance of any final certificate of occupancy Owner shall obtain approval of the final design of the entrance by the Daae County aublic Aorks Department and State Department of Natural Resources 8 Variable Message Signage Contr_buton Owner shall /oluntarily contribute $65,000 to Dade County to be ssed towards the design and installation of variable message signage including communications to be located in the vicini-y of the Rickenbacker Toll Plaza and Bear Cut Owner shall make -tese funds available .iithin six months of the adoption of the Development Order and such funds shall remain available unt_ expended or until December 31 1995 whichever occurs first 9 Roadway Improvements Before Jaruar/ 1 1992 Owner Za.._ pay its proportional share of rte -oacial _mprovements aent_fied n Exhibit B attached to oe app_ ed as a credit aca 1st `'e contr_but on identified n paragraph 7 above as allo.aed oy the Dade County Public Works Department Addirional -ea_ aca_nst the cont-ioution ident_f_ec 1 paragraph 7 of *his 1st-ument may be allowed as determ-rec oy he Daae County D,.bl_c e;orks Department _0 Dedestr an basement Owner s^�__ or de a perpetsal oeaes`r_an easement of ten feet in 4idt1 ouol_c access ro the peach as depicted on the Plans efer ea ,_o _n paragraph 1 above 11 Local Park/Athletic vrogrammi"c Contribution If a site for a local park for Key Biscayne residents is obtained by the County within the Bill Baggs Cape "_or da State Recreation Area ( State Park ) then Owner shag_ 7o_..-,rary contribute 50 000 per acre of such _ocal park ..p o a -a' mum or S500 000 oe _sea -or ^e _.e e_opme^" ca_ oa , ^c_..a_^a preparation of the land and installation of playing fields mo the extent that a surplus exists after the completion of such improvements then the balance of such funds shall be used as provided in the next sentence If the necessary state approvals for such local park within the State Park are not obtained, within one year from the date this Agreement becomes effective, then Owner shall contribute a maximum of $500,000 for athletic programming and equipment for residents of Key Biscayne to be administered by the County's Park and Recreation Department 12 Monetary School Contribution Owner shall voluntarily contribute $3,200,000 to the School Board of Dade County, Florida ( School Board ), for the construction of supplemental improvements to the Key Biscayne Elementary School The specific terms of this school contribution shall be set forth in a separate Declaration of Restrictive Covenants Concerning Monetary Contributions to Key Biscayne Elementary School between the Owner and the School Board, and recorded in the Public Records of Dade County, Florida, within thirty days of the execution of this instrument 13 Issuance of Building Permits and Final Certificates of Occupancy Owner shall not request the issuance of any certifi- cates of occupancy until the Owner is in compliance with para- grapr 7 of this instrument Beginning on January 1, 1992, Owner shall not request the issuance of any further building permits until Owner is in compliance wit paragraph 9 of this instrument 14 Term of Declaration The provisions of this instru- ment shall become effective upon their recordation in the public records of Dade County, Florida, and shall continue in effect for a period of thirty (30) years after the date of such recordation, after which time they shall be extended automatically for succes- sive periods of ten (10) years each unless released in writing by the then owners of the Prooerty (or the Association named n paragraph 5 above on their behalf) and Dade Count ✓ - - 15 Moa if ication The provisions of this instrument may be a'iendea added to, derogated, deleted, modified, or changed from me f -o time by recorded instrument executed by the then owner or majority of the owners of all the Property or the Master .ssociation referred to above, or the Master Association referred to above, provided that such modification amendment, or release is also approved by the Board of County Commissioners, after public hearing Should this Declaration of Restrictive Covenants be so modified amended, or released, the Director of Metropolitan Dade Count Building and Zoning Department or his successor shall forthwith execute a written instrument effectuating and acknowl- edging such modification, amendment, or release 16 Enforcement Enforcement shall be cy action at law or in equity against any parties or persons violating or attempting to violate any covenants, either to recover damages estrain violation or to The prevailing party lr the action or suit shall be Pntitled to recover, in addit on to costs and disburse- ments allowed by law, such sum as the cour` Tay adjudge to be -easonable for the services of his attorney 17 Presumption of Compliance 4hen construction has occ..rred on the Property or on any port- on of 'he Propert-y pur- suant o a lawful permit issued by Dade Count and inspections made and approval of occupancy grantec by Dade Count', then such const ..ct_on inspections and approval sha_1 create a oresump- tion "at the buildings or struc'-ures "us construc"ed comply wit" the intent and spirit of this Declarat on This Declaration shall not be construed as a cloud on title on '-"e Property or on any cort,.cn of the Property upon which such development has occurred 18 Inscect.on As further part of this agreement _t is hereb` understood and agreed that any official inspector of the Dade Count/ Building ana Zoning Department or its agents duly authorized may have the privilege at any time during normal working hours of enterinc, and investigating the use of the premises to determine whether the Property complies with building and zoning regulations and the conditions herein 19 Severability Invalidation of any of these covenants, by ]udgment or court in no ,gay shall affect any of the other orov lions of this instrument which shall remain in full force and effect Signed sealed executed and acknowledged on this —' day J of V 1989 OWNER Signed sealed and delivered in the presence of ,J7 6-0 KEY BISCAYNE HOTEL & VILLAS LIMITED PARTNERSHIP an Illinois limited partnership By VMS Realty Investors an Illinois general partnership its generaa. partner B y Jo 11A Stone G neral Partner STATE OF ILLINOIS ) SS COUNTY OF COOK BEFOPE ME, the undersigned authority, this day personally appeared Joel A Stone to me well known and known to me to be the General Partrsr of VMS Realty Investors, the general partner of Key Biscayne Hotel & Villas Limited Partnership, an Illinois Limited Partnership, and which person is known by me to be the person described in and who executed the foregoing instrument, the said Joel A Stone being likewise known by me to be the General Partner of VMS Realty Investors, who, in his official capacity as such General Partner executed, signed and delivered the said instrument as the act and deed of said Limited Partner- ship, and he then and there acknowledged to and before me that he executed the said instrument acting in his said official capacity, for and as the act and deed of the said Limited Part- nership and in its name, for the uses and purposes therein men- tioned, and after being thereunto by the said Limited Partnership duly authorized and directed WITNESS my hand and official seal at Chicago, Cook County, Illinois on the day of September, 1989 NOTARY PUBLIC, State of Illinois at Large My Commission Expires KLB/VMSDc1Rs Rev 9/27/89 8 A p ruin or sections 4 and 5, Zbwriship 55 Borth, Range 42 East, lying in Dada Cbumty, Florida, described as follnws: NARCIEL t 5 South 1100 feet of Tract '0', FIRST ADDITION TO BISCAYNE KEY La.4ATES, according to the Plat thereof recorded in Plat book 53 at Page 19 of the Public Records of Dade County, Florida. PARCZL II Begin at the S.M. corner of ?rant '0', FIRST ADDITION TO BISCAYNE KEY ESTATES, Plat Book 53 at Page 19 of the Public Records of Dade County, Florida, the ease being a point on the Easters Right -of -Kay Line of Ocean Drive as the same is shown on the said First Addition to Biscayne Key Estates, thence South 89'58'38' West, along the prolongation West of the South line of the said Tract '0' for a distance of 114.61 feet to a point on the Easterly Right -of -Nay Line of the re -alignment of Ocean Drive, as recorded in Official Records Book 6631 at Pages 6 and 7 of the Public Records of Dade County, Florida, thence run North 01'13'38 2' West along said Easterly Right -of -Way Line a distance of 738.07 feet to a point on a circular curve whose center bears North 88'46'21.8• East from said point, thence Southerly along the last described circular curve and the Westerly boundary o! said Tract '0' having a radius of 2,450 feet through a central angle of 17'35'30.1' for an arc distance of 752.23 feet to the Point of Beginning. PARCEL III The West 100 feet of Tract '0' LESS the South 1100 feet thereof, FIRST ADDITION TO BISCAYNE KEY ESTATES, according to the plat thereof recorded in Plat Book 53 at Page 19 of the Public Records oP 'fade County, Florida. PARCEL A Lot 1 and thereof as Records of Lot 2 of Block 1, ALCAZAR, according to the Plat recorded in Plat Book 117, at Page 96 of the Public Dade County, Florida. PARCEL B Tract '!", FIRST ADDITION TO BISCAYNE KEY ESTATES, according in tto the Plat thereof recorded in Plat Book 53• at Page of the he Public Records of Dade County, Florida, lying Westerly 4esterly Right-of-way boundary of the re -alignment of Ocean Drive as described ntatcertain in Official Recyocd Deed Book 6631ae atPunty, agesfiled on November 3, 1969, 6 and 7, of the public records of Dade County, Florida. SUBJECT to the dedications to Dade County by Right -of -Way Deeds filed on June 17, 1955• in Deed Book 4110, at Pages 3 and 4, and on January 21. 1970 in Official Records Book 6727, at Pages 587 and 588 for Rights -of -Way of East Wood Drive and Seaviev Drive. LESS AND EXCEPTING from Parcel '8', Parcel "A" as aforedescribed and LESS AND EXCEPTING the East 233.55 feet of that portion of Tract 'F" as aforedescribed lying North of the Northerly right- of-way boundary of East 'food Drive described in Deed filed on June 17, 1955 in Deed Book 4110, at Pages 3 and 4 of the Public Records of Dade County, Florida. PARCEL C the Bast 233 55 feet of that part of rract "F", FIRST ADDITION ID BISCAYNE KEY ESTATES, according to the plat thereof as recorded in Plat Book 53, at Page 19 of the Public Records of Dade County, Florida, lying North of the North Right of Way boundary of East Wood Drive as described in Deed Book 4110, at Page 3, of the Public Records of Dade County, Florida Gess the following described parcel deeded to Dade County for right-of-way by instrument recorded in Official Records Book 10636, Page 744, re-recorded in Official Records Book 10947, Page 1910, of the Public Records of Dade County, Florida The external area formed by a 25 00 feet radius circular curve .to the Northwest, tangent to the Fast with the East boundary of Tract 'F", FIRST AUDIT ION TO BISCAYNE KEY ESrM .S, according to the plat thereof as recorded in Plat Book 53, at page 19, of the Public Records of Dade County, Florida, and tangent to the South, with the North right of way boundary of East Wood Drive as described in that certain Right of Way Deed to Dade County filed for record June 17, 1955, and duly recorded in Deed Book 4110, on Page 3, of the Public Records of Dade County, Florida All of the foregoing lying, situate and being in Section 5, township 55 South, Range 42 East, KEY B ISLIIYNC, Dade County, Florida IXHIE/T B PROPORTIONAL SHARE FOR ROADVAT IXPROVIMENTS A Crandon boulevard/Vood Drive: Iztand southbound left -turn storage bay D Drickall Avenue: Six -lane videning fro• SE 25th Road to SE 26th Road TOTAL Proportional Share SOURCH ADA, SPRIT Applicant's fro ort.ional Share S 5,000 18_ S23,553 JOINDER BY MORTGAGEE The -ndersigned VMS MORTGAGE INVESTORS L P III, a Delaware limited partnership Mortgagee under that certain Mortgage from VMS 1986-360 LIMITED PARTNERSHIP an Illinois limited partnership, now known as KEY BISCAZNE HOTEL AND VILLAS LIMITED PARTNERSHIP an Illinois limited partnership, dated the 20th of October 1987, and recorded the 21st day of October 1987, in Official Records Book 13452 at Page 1286 of the Public Records of Dade County, Florida in the original amount of $6 988 800 covering all/or a portion of the property described in the foregoing Declaration of Restrictive Covenants in Lieu of Unity of Title Monetary Contributions and Pedestrian Easement (the Declaration') does hereby acknowledge that the terms of the Declaration are and shall be binning -pon the undersigned and its successors in title IN AJITNESS WHEREOF these presents have been executed this '-(21.4-day of September 1989 Signed in the presence of VMS 10R -CAGE INVESTORS L P III a Delaware limited partnership BY 'MS IORTGAGE INVESTORS III INC an Illinois corpora- t�on its general partner L'/ i 'L I�- By ice Preside Attest 4 (Seal) Secre STATE OF ILLINOIS ) SS COUNTY OF COOK BEFORE ME the undersigned author..ty this day appeared Lecnx-cd L.ec- ►Le and rl her r n both being to me well known and known by me to be the , I ct and ~cf-- e4-1-1" r of IMS MORTChGE I lvESTORS III INC an I11_noi5 corporation general partner L P S ORTGr.GE INVESTORS III and ahich said Corporatic-i _= ov me to be the cersons ,escr-oed _n and Nhicn evec,.teo --e creoeing .nstrument t' e sa_a c _cers cn tie said (orcor3t_: _e -a JeNise rnown by me to be the officers thereof who in their official capacities as such officers of said Corporation executed signed and delivered the said instrument as the act and deed of said Corporation and the said officers of said Corporation then and there severally acknowledged to and before me that they executed the said instrument acting in their said official capacities for and as to the act and deed of said Corporation and in its name and impress thereon its corporate seal for the uses and purposes therein mentioned and after being duly authorized and directed WITNESS my hand and official Seal ate./ c< ILL c 5 in the J ' County and State aforesaid on this the 4c4'`^ day of September A D 1989 61‘C C__C.1.--et t c--.- _W CQ (.. ,-4L-1'-' NOTARY PUBLIC State of Illinois My Commission Expires [NOTARIAL SEAL] JOINDER BY MORTGAGEE The undersigned VMS STRATEGIC LAND FUND II, a Delaware corporation Mortgagee under that certain Mortgage from VMS 1986-360 LIMITED PARTNERSHIP an Illinois limited partnership, now known as KEY BISCAYNE HOTEL AND VILLAS LIMITED PARTNERSHIP, an Illinois limited partnership, dated the 20th of October 1987, and recorded the 21st day of October, 1987 in Official Records Book 13452 at Page 1248 of the Public Records of Dade County, Florida in the original amount of $30 971 100 covering all or a portion of the property described in the foregoing Declaration of Restrictive Covenants in Lieu of Unity of Title Monetary Contributions and Pedestrian Easement (the 'Declaration") does hereby acknowledge that the terms of the Declaration are and shall be binding upon the undersigned and its successors in title IN WITNESS WHEREOF, these presents have been executed this ,.,Z ay of September 1989 Signed in the presence of VMS STRATEGIC LAND FUND II a Delaware corporation 4:11NA. Y� ' ,V1)/ By Vice President Attest Secreta (Seal) STATE OF ILLINOIS ) SS COUNTL OF COOK BEFORE ME the undersigned authority this day appeared L eiia-rd Le ne and lit, t both being to me well known and known by me to be the <<- and Secref-t-ry of VMS STRATEGIC LAND FUND II a Delaware corporation and which said Corporation is known by me to be the persons described in and which executed the foregoing instrument the 5a -d officers of the said Corporation being li}ewise renown by me to oe the officers thereof ;ho in t)e_r official capacities as sued officers of said Corporat-or executea signed and delivered the said instrument as the act and deed of said Corporation and the said officers of said Corporation then and there severally acknowledged to and before me that they executed the said instrument acting in their said official capacities, for and as to the act and deed of said Corporation and in its name and impress thereon its corporate seal for the uses and purposes therein mentioned and after being duly authorized and directed WITNESS my hand and official Seal at d -„ c Zccr in the County and State aforesaid, on this thec. - day of September, A D 1989 Ci6---4c- L NOTARY PUBLIC, State of Illinois My Commission Expires [NOTARIAL SEAL] ve Y JOINDER BY MORTGAGEE The undersigned, SOUTHEAST BANK, N A , a national banking association, Mortgagee, under those two certain Mortgages from VMS 1986-360 LIMITED PARTNERSHIP an Illinois limited part- nership now known as KEY BISCAYNE HOTEL AND VILLAS LIMITED PARTNERSHIP an Illinois limited partnership dated the 20th of October 1987 and recorded the 21st day of October, 1987, in Official Records Book 13452, at Page 1152 and Official Records Book 13452 at Page 1200, of the Public Records of Dade County, Florida in the combined original amount of $25,000,000 and that certain Mortgage Modification, Spreading Agreement and Notice of Future Advance dated November 18 1987 securing an additional loan of $2 875,000 00 recorded December 3 1987 in Official Records Book 13495 at Page 3621 covering all/or a portion of the property described in the foregoing Declaration of Res- trictive Covenants in Lieu of Unity of Title Monetary Contributions and Pedestrian Easement (the 'Declaration") does hereby acknowledge that the terms of the Declaration are and shall be binding upon the undersigned and its successors in title IN WITNESS WHEREOF these presents have been executed this r7 - day of September 1989 Signed in the presence of SOUTHEAST BANK N A a national banking association STATE OF FLORIDA 7 n By G /,iVice President SS COUNTY OF DADE BEFORE ME the undersigned authority this day appeared being to me well known and known by me to be the � , �� Y_ of SOUTHEAST BANK 1 A a national banking association, and which said Bank is known by me to be the persons described in and which executed the foregoing instrument, the said officers of the said Bank being likewise known by me to be the officers thereof who in their official capacities as such officers of said Bank executed, signed and delivered the said instrument as the act and deed of said Bank, and the said officers of said Bank then and there severally acknowledged to and before me that they executed the said instrument, acting in their said official capacities, for and as to the act and deed of said Bank and in its name, and impress thereon its corporate seal for the uses and purposes therein mentioned, and after being duly authorized and directed WITNESS my hand and official Seal at / 147ZC,c� in the County and State aforesaid, on this the j %g day of September A D 1989 My Commission Expires 3 T 8l C TATF F FLORIDA Km 3 r YP CT 3 S3I 13 ! (1 1M J IER 1. JID (7-11117;2:-/ ARY PUBLIC, State of Florida [NOTARIAL SEAL]