Section H Covenant & Restrict.
I
."
DECLARATION OF COVENANTS AND RESTRICTIONS
BY
MIAMI BEACH REDEVELOPMENT AGENCY
Dated as of Q e.-r& 8ti{2... Q. ( ,1997
Prepared by and
record and return to:
Joel N. Minsker, Esq.
Joel N. Minsker, P .A.
Bloom & Minsker
800 Brickell Avenue, Suite 1100
Miami, Florida 33131
A:\JNM\CMB\DECLARA T .10(EXECUTION .1)\10-16-97
001
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION (this "Declaration") is made as of the .Q I :;:--r day of
OC-ro.8fK-. , 1997 by MIAMI BEACH REDEVELOPMENT AGENCY, a
public body corporate and politic, with a mailing address of 1700 Convention Center Drive,
Miami Beach, Florida 33139 (the "Owner").
RECITALS:
A. In February 1993, the City Center/Historic Convention Village Redevelopment and
Revitalization Area was officially established by the adoption of a Redevelopment Plan. The
Redevelopment Plan was the result of the combined efforts of the City of Miami Beach (the
"City"), Owner, Metropolitan Dade County and the State of Florida. The Redevelopment Plan
represents the effort and commitment of Owner and the City to foster the development of
convention quality hotels, ancillary improvements and facilities, and necessary linkages to the
Miami Beach Convention Center (the "Convention Center"). Pursuant to the Redevelopment
Plan, Owner has acquired the properties commonly known as the Royal Palm Hotel which has a
street address of 1535 Collins Avenue, Miami Beach, Florida and the Shorecrest Hotel which has
a street address of 1545 Collins Avenue, Miami Beach, Florida, both of which Owner has agreed
to make available for a convention center hotel which will serve as a part of the Redevelopment
Plan.
B. The City and Owner also have determined to make a substantial commitment to
provide the African-American community with an opportunity in the hospitality industry. In
connection with that commitment, Owner has agreed to make available the Royal Palm Hotel and
the Shorecrest Hotel and additional financial incentives for a hotel owned by African-American
Persons .
C. In furtherance of the Redevelopment Plan and the commitment to the African-
American community referred to in the preceding paragraph, the Miami Beach Redevelopment
Agency (the "Agency") published Request for Proposals Number 45-9596 (the "RFP"), entitled
"City Center/Historic Convention Village Redevelopment and Revitalization Area African-
American Hotel Development Opportunity", dated December 27, 1995 and amended on January
2, 1996, January 3, 1996 and March 5, 1996. The RFP sought bids for the development and
operation of a convention center hotel owned by African-American Persons (as defined in the
Lease) .
D. On June 5, 1996, after a public review process, the Chairman and Members of
Owner selected an Affiliate (as defined in the Lease) of Tenant (as defined hereinbelow) from
among the groups that submitted proposals pursuant to the RFP and directed representatives of
Owner to negotiate the terms under which Tenant or its Affiliate would deyelop, own and operate
A:\INM\CMB\DECLARAT.lO(EXECUTION .1)\10-16-97
1
002
the convention center hotel referred to above (the "Hotel") in accordance with the requirements
of the RFP.
.'
E. Owner and AffIliates of Tenant entered into a Letter ofIntent dated March 5, 1997,
and approved by the City, which, among other things, provides for the development, construction,
furnishing and equipping of the Hotel.
F. Owner, the City (to the extent provided) and RDP Royal Palm Hotel Limited
Partnership, a Florida limited partnership ("Tenant"), have entered into that certain Agreement
of Lease (the "Lease"), dated of even date herewith, pursuant to which, among other things,
Owner has agreed to lease the Land to Tenant. The Lease or a memorandum thereof is to be
recorded in the Public Records of Dade County, Florida immediately following the recordation
of this Declaration.
G. Owner, the City (to the extent provided therein) and Tenant (acting as
"Developer") have entered into that certain Hotel Development Agreement dated as of the date
hereof, pursuant to which Tenant (acting as "Developer") has agreed to construct the Hotel and
related improvements in accordance with the terms thereof.
H. By that certain bill of sale from Owner to Tenant dated as of the date hereof,
Owner has conveyed to Tenant all of the right, title and interest of Owner in and to the
improvements.
I. Owner desires to impose certain provIsIons of the Lease as covenants and
restrictions upon the Land and any improvements located thereon.
J.
below).
Tenant and the City have entered into a Convention Center Agreement (as defmed
NOW, THEREFORE, Owner hereby declares as follows:
- 1.-. Definitions. As used in this Declaration, the terms defmed below shall have the
following meanings:
1.1 "Convention Center" means the Miami Beach Convention Center at the site
bounded by the streets in Miami Beach, Florida that as of the date hereof bear the following
names: Convention Center Drive, Dade Boulevard, Washington Avenue and 17th Street, with a
gross building area of no less than one million (1,000,000) square feet and exhibit hall capacity
aggregating not less than five hundred thousand (500,000) square feet.
1.2 "Convention Center Agreement" means that certain Convention Center
Agreement, dated of the date hereof, between Tenant (acting as "Hotel Owner") and the City (in
its capacity as owner of the Convention Center), together with all amendments, restatements,
A:\JNM\CMB\DECLARA T .10(EXECUTlON .1)\ 10-16-97
2
003
modifications and replacements thereof, pursuant to which, among other things, Tenant will (i)
make available Hotel facilities and services for support of Convention Center events and (ii)
undertake joint marketing efforts.
1.3 "Declaration of Condominium" means a Declaration of Condominium (as
defined in the Lease), if and when created.
1.4 "Governmental Authority or Authorities" means the United States of
America, the State of Florida, the City, Metropolitan Dade County, the Agency (in its
governmental as opposed to proprietary capacity) and any agency, department, commission,
board, bureau, instrumentality or political subdivision (including any county or district) of any
of the foregoing, now existing or hereafter created, having jurisdiction over any owner of, or any
tenant or other occupant of, the Premises or over or under the Premises or any portion thereof,
or any street, road, avenue or sidewalk comprising a part of, or in front of, the Premises, or any
vault in or under the Premises or airspace over the Premises.
1.5 "Land" means the real property described on Exhibit A attached hereto and
incorporated by reference herein.
1.6 "Premises" means the Land and any building (including footings and
foundations), equipment, furniture, fixtures and other improvements and appurtenances of every
kind and description now existing or hereafter erected, constructed or placed upon the Land
(whether temporary or permanent), and any and all alterations and replacements thereof, additions
thereto and substitutions therefor.
1.7 "Redevelopment Plan" means that certain plan addressing the
rehabilitation, conservation and redevelopment of that certain City Center/Historic Convention
Village Redevelopment and Revitalization Area described therein, of which the Land forms a part,
as the same was adopted in February of 1993 by the Agency and the City and approved by the
Board of County Commissioners of Dade County, Florida in March, 1993, and expiring on March
31, 2023. As used herein, except in the Recitals, references to the "Redevelopment Plan" shall
not include any extensions or amendments thereof.
1.8 "Requirements" means:
(i) any and all laws, rules, regulations, constitutions, orders,
ordinances, charters, statutes, codes, executive orders and requirements of all Governmental
Authorities having jurisdiction over a person or entity and/or the Premises, or any street, road,
avenue or sidewalk comprising a part of, or lying in front of, the Premises or any vault in, or
under the Premises (including, without limitation, any of the foregoing relating to handicapped
access or parking, the Building Code of the City and the laws, rules, regulations, orders,
ordinances, statutes, codes and requirements of any applicable Fire Rating Bureau or other body
exercising similar functions);
A:\JNM\CMB\DECLARA T.IO(EXECUTION .1)\10-16-97
3
OC4
(ii) the temporary and/or permanent certificate or certificates of
occupancy issued for the Premises as then in force; and
(iii) any and all provisions and requirements of any property, casualty
or other insurance policy carried with respect to the Premises.
1.9 "Unavoidable Delays" means delays due to strikes, slowdowns, lockouts,
acts of God, inability to obtain labor or materials, war, enemy action, civil commotion, fire,
casualty, catastrophic weather conditions, a court order which causes a delay (unless resulting
from disputes between or among the party alleging an Unavoidable Delay, present or former
employees, officers, members, partners or shareholders of such alleging party or Affiliates (or
present or former employees, officers, partners, members or shareholders of such Affiliates) of
such alleging party), the application of any Requirement, or another cause beyond such party's
control or which, if susceptible to control by such party, shall be beyond the reasonable control
of such party. In no event shall (i) any party's financial condition or inability to fund or obtain
funding or financing constitute an "Unavoidable Delay" (except for an Institutional Lender's (as
defined in the Lease) inability to fund, which inability is not caused by Tenant) with respect to
such party and (ii) any delay arising from a party's (or its Affiliates) default under the Lease or
any of the "Project Agreements" (as defmed in the Lease) constitute an "Unavoidable Delay" with
respect to such party's obligations hereunder.
2. Covenants and Restrictions on Premises. Owner hereby agrees, for itself and its
successors and assigns, that, from and after the effective date (the "Effective Date") of the
expiration or termination of the Lease (including, without limitation, any new lease executed
thereunder as part of any "New Tenant's Documents" (as defined in the Lease)), the Premises,
and the use and the possession thereof, shall be subject to all of the following covenants and
restrictions, subject to the terms and conditions of this Declaration:
2.1 The Premises shall be used only for the operation of a convention center
hotel with appropriate ancillary uses and amenities, and for no other purpose, without interruption
(except for Unavoidable Delays and except in the ordinary course of business).
2.2 The use of any ownership structure such as time share, time interval,
cooperative or condominium (other than as may be contemplated by a Declaration of
Condominium creating only two (2) units consisting of a restaurant unit and a unit comprising the
remainder of the improvements on the Premises which Tenant, at its sole option, reserves the right
to create) is strictly prohibited.
2.3 The buildings on the Premises shall be considered one (1) building on the
Premises and no individual building on such Premises shall be sold, transferred, devised or
assigned separately.
A:\JNM\CMB\DECLARAT.IO(EXECUTION .1)\10-16-97
4
0(5
2.4 The Tenant, so long as the Lease is in effect and, thereafter, the owner of
the Land shall be bound by and comply with the Convention Center Agreement so long as it is
in effect in accordance with its terms with respect to the entire Premises (notwithstanding the fact
that the restaurant portion of the Premises may be owned by other persons or entities in
accordance with the Declaration of Condominium as aforesaid).
3. Miscellaneous.
3.1 Successors and Assi~ns. The agreements, terms, covenants and conditions
herein shall be binding upon Owner, its successors and assigns as owner of the Land, and the
tenants and other occupants of the Premises and their respective successors and permitted assigns
and shall be construed as covenants running with the Land.
...
3.2 Governin~ Law. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Florida, both substantive and remedial, without regard
to principles of conflict of laws.
3.3 Headini:s. The captions contained in this Declaration are for the purpose
of convenience of reference only and in no way defme, limit or describe the scope or intent of this
Declaration or in any way affect this Declaration.
3.4 Severability. If any provision of this Declaration or the application thereof
to any person or entity or circumstances is, to any extent, finally determined by a court of
competent jurisdiction to be invalid and unenforceable, the remainder of this Declaration, and the
application of such provision to persons or entities or circumstances other than those as to which
it is held invalid and unenforceable, shall not be affected thereby and each term and provision of
this Declaration shall be valid and enforceable to the fullest extent permitted by law.
3.5 Le~al Effect. It is intended that the covenants and restrictions as set forth
in this Declaration shall, to the fullest extent legally possible, run with the Land and be
enforceable solely by the Miami Beach Redevelopment Agency or the City against Owner, its
.. successors and assigns as owner of the Land, the Premises and any tenants and other occupants
of the Premises.
3.6 Duration. Unless terminated in writing by the Miami Beach Redevelopment
Agency or the City, all of the covenants and restrictions set forth in this Declaration shall continue
from the Effective Date until the earliest to occur of (i) the termination of the Convention Center
Agreement by the mutual agreement of the parties thereto or pursuant to the terms thereof; (ii) if
at any time the Convention Center ceases to be open and available for business for any reason
whatsoever (including, without limitation, as a result of a condemnation or casualty), and within
ninety (90) days following the date that the Convention Center ceases to be open and available for
business, (a) the Convention Center has not reopened and become available for business, subject
to Unavoidable Delays, (b) the City elects, by notice to the owner of the Hotel, not to restore
A:\JNMICMBIDECLARA T .100EXECUTION .1)110-16-97
5
Ot6
and/or re-open the Convention Center or (c) if the City does so elect to restore and/or re-open the
Convention Center, the City fails to pursue diligently the completion of any such restoration or
re-opening; (iii) the City's failure to maintain the Convention C~nter with no material adverse
change in its present condition or, if there exists such a material adverse change, the City's failure
to make arrangements for an imminent renovation and diligently implement and complete such
renovation; or (iv) March 31, 2023. Upon the earliest to occur of any of the events described in
the preceding clauses (i), (ii), (iii) or (iv), this Declaration shall automatically and without further
instrument be void and of no force and effect. However, upon request of the owner of the Hotel,
the Miami Beach Redevelopment Agency and the City shall execute an instrument in recordable
form to evidence the termination of this Declaration. In no event shall this Declaration remain
in effect beyond March 31, 2023.
3.7 No Third Party Beneficiaries. Nothing in this Declaration shall confer upon
any person or entity, other than the Miami Beach Redevelopment Agency, the City and the owner
of the Hotel, any rights or remedies under or by reason of this Declaration.
3.8 Survivability of Terms and Provisions. Definitions in the Lease of terms
used in this Declaration shall survive the termination of the Lease.
EXECUTION
IN WITNESS WHEREOF, the Miami Beach Redevelopment Agency has executed this
Declaration to be effective as of the day and year first set forth above.
WITNESSES:
~J.
Print Name: Prf-Tt\Ute bt. C-O()~%)N
au~~~
Print Name: AIk/..'i>.;NJJE{ T .~~#jil1f'S'
\\\l..oIlltlljll/;,
,I :- " "".
\ l" / ~':' "\
I~ALl) \ if' '...
It.!
'\: ~:l4..
-.:. ,.J
.
~" ,~
.,
'I,
"
. -.
A;\:Jij~~BmEC~T .1O(EXECUTION .1)\10-16-97
'I, v .'
't""o//"1\111'.\
MIAMI &EACH REDEVELOPMENT AGENCY
By: (j~. ~/~
l, Seymq6r Gelber,
Chainpan
ATTEST:
By:~J- tax,L-
Robert Parcher,
Secretary
APPROVED AS TO
FORM & lANGUAGE
& FOR EXECunON
6
~ (r)!/V97
opmenf Aglncy Oat.
""ff'''~r..' r:",,~,,! OC?
STATE OF FLORIDA
)
) SS:
)
."
COUNTY OF DADE
BEFORE ME, the undersigned authority, personally appeared Seymour Gelber, Chairman,
and Robert Parcher, Secretary, of the MIAMI BEACH REDEVELOPMENT AGENCY, to me
known to be the persons who signed the foregoing instrument and acknowledged the execution
thereof to be the act and deed of said Agency for the uses and purposes therein mentioned, and
that they affixed thereto the official seal of said Agency. Each such individual is personally
known to me or produced a valid driver's license as identification.
wrzr~ and official seal in the County and State last aforesaid this ,;2 J 'T
day of ' , 1997.
My Commission Expires:
OFFICIAL NOTARY SEAL
LILLIAN BEAUCHAMP
l\raTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CC347882
MY COMMISSiON EXP. FEB. 13,1998
/;1!u.v a.Mt~/~
Notary Public, S&te of Florida at Large .
THE CITY OF MIAMI BEACH IS EXECUTING THIS DECLARATION SOLELY FOR THE
PURPOSE OF BEING BOUND ONLY BY SUBSECTIONS 3.5, 3.6 and 3.7 OF THE
FOREGOING DECLARATION:
WITNESS:
{!f!u~O~~~D~
CITY OF MIAMI BEACH
By:
~~~ (XJL-- ATTEST:
Print :t;{AATIe: Ave.XAilJD~/'t. ::t:--_ 'lAc+l ~~.S
. . "
,,' .~"
C)t...::..' .
...... '\',-\. ",
. "'\. .
." -",:,
BY:~ f ~PROVEOA5lO
Robert Parcher, FORM & lANGUAGE
City Clerk & FOR EXECUTION
[SEALl.
A:\JNM\CMB\DECLARA T .1O(EXECUTION .1)\ 10-16-97
. ,
7
~~/~
0(8
STATE OF FLORIDA
)
) SS:
)
..
COUNTY OF DADE
BEFORE ME, the undersigned authority, personally appeared Seymour Gelber, Mayor,
and Robert Parcher, City Clerk, of the CITY OF MIAMI BEACH, to me known to be the persons
who signed the foregoing instrument and acknowledged the execution thereof to be the act and
deed of said City for the uses and purposes therein mentioned, and that they affIxed thereto the
offIcial seal of said City. Each such individual is personally known to me or produced a valid
driver's license as identifIcation.
wp)NESS my hand and official seal in the County and State last aforesaid this N I S"-
day of l)a-~ ,1997.
My Commission Expires:
OFFICIAL NOTARY SEAL
LILLIAN BEAUCHAMP
NOTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CC347882
MY COMMISSION EXP. FEB. 13,1998
ct1JJIP-V &~~
Notary Public, Sta{e of Florida at Large
A: \JNM\CMB\DECLARA T .1O(EXECUTION .1)\ 10-16-97
8
009
EXHIBIT A
LAND
ROYAL PALM LAND
The South 12.65 feet (measured along the lot line) of Lots 7 and 14, all of Lots 6
and 15 and the North 10.7 feet (measured along the lot line) of Lots 5 and 16, all
in Block 56, of FISHER'S FIRST SUBDMSION OF ALTON BEACH, according
to the plat thereof, as recorded in Plat Book 2, at Page 77, of the Public Records
of Dade County, Florida, together with that certain parcel of land lying East and
adjacent to the above described parcel; said parcel bounded on the South by the
South line of the above described parcel extended Easterly; bounded on the North
by the North line of the above described parcel extended Easterly; bounded on the
East by the Erosion Control Line of the Atlantic Ocean and bounded on the West
by the East line of the above mentioned Block 56.
SHORECREST LAND
The South 40.00 feet (measured along the lot line) of Lots 5 and 16 and the North
one-half of Lots 4 and 17, all in Block 56, of FISHER'S FIRST SUBDIVISION
OF ALTON BEACH, according to the plat thereof, as recorded in Plat Book 2,
at Page 77, of the Public Records of Dade County, Florida, together with that
certain parcel of land lying East and adjacent to the above described parcel; said
parcel bounded on the South by the South line of the above described parcel
extended Easterly; bounded on the North by the North line of the above described
parcel extended Easterly; bounded on the East by the Erosion Control Line of the
Atlantic Ocean and bounded on the West by the East line of the above mentioned
Block 56.
All lands described above located, lying and being in Section 34, Township 53 South, Range 42
East, in the City of Miami Beach, Dade County, Florida.
A:\JNM\CMB\DECLARA T .1O(EXECUTION .1)\ 10-16-97
9
tJl0