HomeMy WebLinkAboutexhibit DThis instrument was prepared by;
Name; John Shubin, Esq,
Address; 48 SW 181 Street
Third Floor
Miami, Fl- 33130
EXHIBIT -IL -
(Space Reserved for Clerk of the Court)
DECLARATION OF RESTRICTIONS
AND REVERTER PROVISION
WHEREAS, the undersigned, City National Bank of Florida, as Trustee (the
"Trustee"), under Trust No. 2401-0915-00 dated November 29, 2000 (the "Trust"), holds
the fee simple title to that certain parcel of land, which parcel is legally described in
Exhibit "A" to this Declaration (the "Property"); and
WHEREAS, prior to the date of the Assignment (as hereinafter defined) the
persons identified in Exhibit "B" to this Declaration (the "Brickell Heirs") were the sole
beneficiaries of the Trust; and
WHEREAS, by Assignment dated the day of May, 2005 (the "Assignment"),
the Brickell Heirs assigned to City National Bank of Florida, as Trustee under Land
Trust No. 2401-1863-00 ("TRG"): (i) all of their beneficial interest in the Trust, less the
Brickell Heirs' rights under the Reverter Provision set forth in paragraph 4(D) of this
Declaration; and (ii) the Brickell Heirs position in that certain litigation against the City of
Miami, in case no. 88-0230-CIV-HIGHSMITH, in the United States District Court for the
Southern District of Florida (the "Litigation"); and
1
L:%DRemlrezSNostBRICKELLuettlement20051Bdckell Park • dedara6an of rodIddions(v a ) 00C
3111105 01 12:30 p.m.
WHEREAS, a portion of the Property hereinafter referred to as "Brickell Park"
shall be used solely as a public passive park, except as hereinafter provided that a
portion of the Brickell Park (that portion hereinafter referred to as the "Construction
Easement Parcel", as legally described on Exhibit "D" attached hereto and made a
material part hereof) may be used for a temporary construction, staging and/or
development area and temporary sales office, as hereinafter set forth in paragraph 1.
The Brickell Park, which may also be referred to as the "Park Land" is legally described
on Exhibit "C" attached hereto and made a material part hereof; and
WHEREAS, the Brickell Heirs have consented to the waiver and release of the
Property from (a) the restrictions and reversionary provisions set forth in that certain
Deed to the City of Miami recorded February 3, 1925, in Deed Book 528, Page 56, and
(b) the dedication by Mary Brickell as to burial ground recorded January 27, 1923, in
Deed Book 323, Page 298, as applicable with respect to the Property (collectively, the
"Restrictive Documents"); and
WHEREAS, in consideration of the Assignment, TRG agreed to authorize and
instruct the Trustee to execute this Declaration and to record same in the public records
of Miami -Dade County as a covenant running with the title to the Park land, and the
Trustee hereby confirms that it has received said authorization and instructions.
NOW, THEREFORE, the Trustee freely, voluntarily, and without duress agrees
that the Park Land shall be subject to the following restrictions that are intended and
shall be deemed to be covenants, covering and running with the Park Land and binding
upon the Trustee, its successors in interest and assigns, as follows:
1. Use as Public "Passive" Park. The Trustee agrees to specifically limit
the use of the Park Land to those uses expressly permitted as hereinafter provided: (1)
2
L:IORamlrozSeilasSBRICKELLIaettlem9m20e54Bdckell Perk • dederaflon of reslridions(A).DOC
30 VQ5 al 12:30 p.m.
a passive public park; and (2) for a term not to exceed sixty (60) months from the date
of this Declaration, the Construction Easement Parcel may be used by TRG as a
temporary construction, staging and/or development area and a temporary sales office
(the "Construction Easement") with and solely for the benefit of TRG, which is the owner
of that certain abutting property to the north commonly known as the "Sheraton Site"
(the "Sheraton Site"), which is legally described on Exhibit "E" attached hereto and
made a material part hereof. The Construction Easement shall be recorded in the
Public Records of Miami -Dade County, Florida, immediately following the recording of
this Declaration.
2. Permanent Identification as "Brickell Park", The Park Land
shall be forever identified, referred to and known as "Brickell Park." The Brickell Heirs
acknowledge and agree that the restrictions contained in this Declaration shall replace
and supersede the restrictions set forth in the Restrictive Documents and'upon the
recordation of the Declaration in the Public Records of Miami -Dade County, Florida the
Restrictive Documents shall be of no further force and effect.
3. Maintenance of Brickell Park. Following the expiration or earlier
termination of the Construction Easement and the contemplated renovations and
improvements of the Park Land, TRG shall cause the master homeowner's association
or applicable condominium associations operating the common areas of the Sheraton
Site for which TRG is the developer and TRG shall be the "Declarant" under one or
more declarations of condominiums and/or homeowner's associations, to assume and
be responsible for the proper maintenance and upkeep of the Brickell Park in perpetuity
(the "Obligations"). However, should the referenced master homeowner's association
3 L:1ORamirazSellaalBRICKELLVaeftlement20055Bdckell Park • detlareGen a�i 11tc ia1 72 30 p C
or condominium association either not be formed, be terminated or otherwise dissolved,
these Obligations shall be a covenant running with the land of the Sheraton Site.
4. Miscellaneous,
A. Covenant Running with the Land. This Declaration on the part of
the Trustee shall constitute a covenant running with the Park Land and shall be
recorded in the Public Records of Miami -Dade County, Florida, and shall remain in full
force and effect and be binding upon the undersigned Trustee, and its successors and
assigns until such time as the same is modified or released as hereinafter provided.
These restrictions shall be for the benefit of, and limitation upon, all present and future
owners of the Park Land and for the public welfare and may not be released or modified
without the prior written consent of the Brickell Heirs, TRG and the City of Miami, which
written consent shall only be evidenced by a document executed by each of the
referenced parties and recorded in the Public Records of Miami -Dade County, Florida.
B. Term. This Declaration is to run with the Park Land and shall be
binding on all parties and all persons claiming under it for a period of thirty (30) years
from the date that this Declaration is recorded, after which time it shall be extended
automatically for successive periods of ten (10) years each, unless an instrument
signed by the Brickell Heirs, TRG and the City of Miami has been recorded agreeing to
change the covenant in whole, or in part, provided that no such modification or change
to this Declaration shall be effective until the consents required in Section 4A above
have first been obtained.
C. Enforcement. In the event of any breach of this Declaration, the
remedy shall be an action for specific performance or injunctive relief, together with
attorneys fees and court costs at trial and all appellate levels to the prevailing party. It is
4
L:1ORamimzSahaSWRICKELLIeettlemen120051ROChelI Park • declaration of fe>tldplone(v8).000
31110 a1 12:30 p.m.
intended that this Declaration be enforceable by any of the Brickell Heirs, TRG and/or
the City of Miami.
D. Reversion. In addition to the foregoing enforcement rights, in the
event that the Park Land is hereafter sold then in such event title to the Park Land shall
automatically revert to and be vested in the Brickell Heirs. Any conveyance of all or any
portion of the Park Land by the Trustee or any subsequent conveyance, in either case,
to either the City of Miami or any not-for-profit organization, for the use of the Park Land
as either a public passive park, shall not cause or otherwise trigger this Reverter,
however this Reverter shall continue in full force and effect, as to any other subsequent
conveyance or transfer of interest in the Park Land. In the event this Reverter is
triggered, and title to the Park Land is vested in the Brickell Heirs, then the obligations
of TRG set forth in Section 3 above shall terminate and be null and void.
5
L:IORamlrez5Bl}as%BRICKELL1eelllamen12OOMBdckell Park - dedar&IUP Of reslddlana(YOWOC
3A 1 W et 1
2:3d p.m.
IN WITNESS WHEREOF, we have hereunto set our hands and
seal this day of
Signed, sealed and delivered
in the presence of:
WITNESSES:
Sign:
Print:
Sign:
Print:
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
2005.
CITY NATIONAL BANK OF FLORIDA, as
Trustee under Trust No. 2401-0915-OCI
dated November 29, 2000
The foregoing instrument was acknowledged before me this day of
, 2005, by William E. Shockett as Executive Vice President and Trust
Officer of CITY NATIONAL BANK OF FLORIDA, as Trustee under Trust No. 2401-
0915-00 dated November 29, 2000 on behalf of the Trustee, who is personally known to
me or has produced as identification.
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
State of Florida at Large (Seal)
r
7P
L:IORpmlrez"jariBRICKELL18eftlernent20O54Bnckell Palk • decWatinn al reildalons(YO)DOC
3111105 p! 12'30 P.m.
JOINDER
CITY NATIONAL BANK OF FLORIDA, as Trustee under Land Trust No. 2401-
1863-00 hereby joins in the foregoing Declaration for the purpose of confirming its
agreement and obligations to comply with the provisions of this Declaration.
City National Bank of Florida, as
Trustee under Land Trust No. 2401-1863-
00
M
Name:
Title:
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this - day of
, 2005, by William E. Shockett as Executive Vice President and Trust
Officer of CITY NATIONAL BANK OF FLORIDA, as Trustee under Trust No. 2401-
1863-00 dated November 29, 2000 on behalf of the Trustee, who is personally known to
me or has produced as identification.
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
State of Florida at Large (Seal)
7 L:IORamlrez5eijaslBRICKEL4lsettlement20051Bdckell Palk • 4edarabon of restdcuom( 0).DOC
5111!05 $1 12:30 p.m.
JOINDER
The "Brickell Heirs" hereby join in the foregoing Declaration for the
purpose of confirming its acknowledgement of and agreement with the provisions
set forth in paragraph 3 of this Declaration.
THE BRICKELL HEIRS:
(i) As to the heirs of George M. Brickell: Paul
Sanders, Edward Sanders and Barbara Jean
Bradford (daughter of Vinnie L. Sanders and
daughter of Jack Sanders (deceased)
Robert E. Gallagher, Jr., their authorized
representative and attorney-in-fact
(ii) As to the heirs of Maude E. Brickell: Kathy D.
Glenn (daughter of and legal heir to Archie K.
Purdy a/k/a David K. Purdy), David E. Snyder,
Elizabeth Snyder Gordon, Carol M. Snyder,
Dwight P. Snyder and John W. Snyder
IN
Dwight Sullivan, their authorized
representative and attorney-in-fact
(iii) As to the heirs of Charles C.B. Brickell: Beatrice
A. Brickell, James B. Brickell, Jr. and Elinor
Brickell (wife of James B. Brickell, deceased)
By:
Robert E. Gallagher, Jr., their authorized
representative and attorney-in-fact
(iv) As to the heirs of William B. Brickell: Linda C.
Minor (as personal representative of the Estate
of William G. Brickell), Marjorie G. Brickell,
Marjorie Brickell Family Trust and William 0.
Brickell Family Trust
By: _
Robert E. Gallagher, Jr., as the
authorized representative and attorney-in-
fact
8
L;IORpmirex5elyaslBRICNELLyettiemon120055Bnckell Perk - Aedarg1kin or resocoons(vai Doc
3111105 m WIG p.m.
STATE OF FLORIDA )
) SS
COUNTY OF MIAMI-DADE }
The foregoing instrument was acknowledged before me this day of April, 2005, by
Robert E. Gallagher, Jr., Esquire as authorized representative and attorney-in-fact for
the heirs of George M. Brickell, the heirs of Charles C.B. Brickell and the heirs of
William B. Brickell, who is personally known to me or has produced
as identification.
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
State of Florida at Large (Seal)
STATE OF FLORIDA )
) SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of April, 2005, by
Dwight D. Sullivan, Esquire as authorized representative and attorney-in-fact for the
heirs of Maude E, Brickell, who is personally known to me or has produced
as identification,
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
State of Florida at Large (Seal)
9
L:IORamlrezS6jag%BRICKELL\stMlemenl2005lBdaell Park - Gadarati0n of restriC10na(vB(.Doc
3111105 at 12.30 p.rn
JOINDER
The City of Miami hereby joins in the foregoing Declaration for the purpose
of confirming its acknowledgement of and agreement with the removal of the
Property from the Restrictive Documents.
Approved by:
STATE OF FLORIDA }
)SS
COUNTY OF MIAMI-DADE }
CITY OF MIAMI
By:
At
The foregoing instrument was acknowledged before me this day of April, 2005, by
and as and , respectively, of
the City of Miami, a municipal corporation, who are personally known to me or have
produced and as identification.
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
State of Florida at Large (Seal)
10
L:iORamirea5aljaslBRICK£LLUWomanl20055Backell Park- Geclarallon of re6
1
aa1ane(v6).000
3111 f05 2112:30 P,m.
JOINDER
HSBC Realty Credit Corporation (USA), a Delaware corporation, the holder of a
mortgage encumbering the Sheraton Site, hereby joins in the foregoing Declaration for
the sole purpose of consenting to the recordation of this instrument. By its execution
hereof, the undersigned does not make any representations or warranties with respect
to any matters set forth in or pertaining to this instrument or undertake any of the
obligations or liabilities contained therein.
HSBC REALTY CREDIT CORPORATION
(USA), a Delaware corporation
M_
STATE OF FLORIDA }
)SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of April, 2005, by
as , of HSBC Credit Corporation (USA), a Delaware
corporation, who is personally known to me or has produced as
identification.
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
State of Florida at Large (Seal)
11
L%ORamirexS6jes1BRICKELLlsefllement20051Bdckell Park • declarallon of restrichonw0).000
3111105 at 12:30 p.m.