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93-20801 RESO -,,-'...,. . RESOLUTION NO. 93-20801 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT ENTITLED THE "LINCOLN ROAD STREET END AGREEMENT," BETWEEN THE CITY OF MIAMI BEACH AND CRESCENT HEIGHTS XXX, INC., A FLORIDA CORPORATION, AND DILlDO BEACH HOTEL CORPORATION, A FLORIDA CORPORATION. WHEREAS, the City of Miami Beach is the owner of a right-of- way Easement for the Street End east of Collins Avenue at Lincoln Road as recorded in Plat Book 2, Page 77, of the Public Records of Dade County, Florida; and WHEREAS, said Street End does not have public access to the beach; and WHEREAS, Crescent Heights XXX and Dilido Beach Hotel Corporation ("Owner"), are the respective owners of the properties abutting the above Street End to the north, south and east; and WHEREAS, Owner and the city have determined that it is in the best interest of the public and the citizens of the city of Miami Beach that the street End and Easement Parcel, as defined in the attached Agreement and Exhibits thereto, be improved and that pUblic access be made available from the Street End to the beach and Atlantic Ocean; and WHEREAS, the Owner and the city are desirous of establishing and implementing a development plan to improve the Street End and Easement Parcel and to provide a pedestrian easement for the pUblic, said easement to provide access for the general public from the street End to the beach; and WHEREAS, the Owner wishes to dedicate to the City and the city wishes to accept from Owner, a public access easement for the Lincoln Road Street End to the beach; and WHEREAS, in consideration of the dedication of the Permanent Easement as referenced by the attached Grant of Permanent Easement (Exhibit A to the Agreement), the City wishes to make certain improvements to the Street End and Easement Parcel. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that: the Mayor and City Clerk are hereby authorized to execute the attached Agreement . entitled the "Lincoln Road street End Agreement", as well as all Exhibits thereto, between the City of Miami Beach and Crescent Heights XXX, Inc., and Dilido Beach Hotel Corporation. PASSED and ADOPTED this 19th 1993. ATTEST: 'lGcL.~ 2. ~~ CITY CLERK jm:a:rja\lincroad.res 2 .' ,. CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 CITY OF MIAMI BEACH OFFICE OF THE CITY MANAGER TELEPHONE: (305) 113-1010 FAX: (3051 113-1112 COMMISSION MEMORANDUM NO. ~ fY~ TO: Mayor Seymour Gelber and Members d the CIty Commission DATE: May 19, 1993 FROM: SUBJECT: USOLUTIOH AUTJIORIIIHG TBB KAYOR 'fO BIl'1'BR 111'1'0 U AGUJUlBIIT .Ift CUSCBIIT DIGHTS UZ IHC. 'fO IJlPLBJIBIIT TBB DBVBLOPJlBIIT O. TBB LllfCOLlf ROAD S'l'lUIBor BIID ADMINISTRATION RECOMMENDATION: The Administration recommends that the city commission authorize the Mayor to enter into an aqreement with Crescent Heiqhts XXX, Inc. to implement the development of the Lincoln Road street end. BACKGROUND: The Lincoln Road street end is the only street end on Miami Beach where there is no ocean access. The city's lonq-term objective has been to improve its street ends. The recent acquisition of 100 Lincoln Road by Crescent Heiqhts XXX, Inc. creates an opportunity to beautify the street and to provide an openinq to the ocean. ANALYSIS: The basic business terms are as follows. , The developers will qrant a 20-foot wide easement parcel with five foot set back on each side to the city from the present street end of Lincoln Road to the beach. The purposes of the easement will be for pedestrians' access, emergency vehicles' access, and utilities and liqhtinq. The value of this parcel is estimated to be $150,000, which will be supported with an appraisal. . The City will, in exchanqe, cause the improv_ent of the street end to occur at a cost not to exceed $450,000. If the easement is worth less than $150,000, based on the appraisal, the developer will put the difference in cost, not to exceed $50,000, into the construction fund. , The aqreement does not preclude the city from assessinq adjacent buildings for maintenance, repairs and marketinq of the entire Lincoln Road project. The adjacent buildinqs will not be assessed for initial capital costs of the balance of the Lincoln Road project. . The street construction project will commence within six months of signing this agreement and take six months to complete. 1 -1- AGENDA ITEM ~:-]-A DATE~ .' , The construction project includes lighting, landscaping, irrigation, sidewalks, signage and street furniture, vehicular turnaround at the street end, improvements to the easement area itself. , Benjamin Thompson Associates (BTA), the Lincoln Road consulting team, will design the be retained to do the street end design work. SOURCE OF FUNDS: The funding for this project will come froll Resort Tax revenues and other sources. CONCWSION It is reeolDDlended that the city cOlDDlission authorize the Mayor to execute said agreement. RMC:jph -2- 2 '" . .' , , . LINCOLN ROAD STREET END AGREEMENT THIS AGREEMENT is fflde and entered into this 14th day of March 199? b.~a'and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation (hereinafter referred to as the "city"), and CRESCENT HEIGHTS XXX, INC., a Florida corporation, and DILIDO BEACH HOTEL CORPORATION, a Florida corporation, (hereinafter collectively referred to as "Owner"). RECITALS A. Whereas, the city is the owner of a right-of-way easement for the Street End east of Collins Avenue along Lincoln Road and as recorded in Plat Book 2, Page 77, of the Public Records of Dade county, Florida: which Street End does not have public access to the beach: and B. Whereas, the Owner is the fee simple owner of the property abutting the above Street End to the north, south and east (the "Abutting Properties") and which is legally described as set forth in Exhibit "A" attached hereto. C. Whereas, Owner and the city have determined that it is in the best interest of the public and the citizens of the city of Miami Beach that the "Street End" as defined herein and Easement Parcel be improved and that access to the public be made available from the Street End to the beach and Atlantic Ocean. The Owner and the City are desirous of establishing and implementing a development plan to improve the street End and Easement Parcel and to provide a pedestrian easement to the public, said easement providing access for the general public from the street End to the beach: and D. Whereas, the Owner wishes to dedicate to City and City wishes to accept from owner, a public access easement from the Lincoln Road street End to the beach; E. Whereas, in consideration of the dedication of the easement, the city wishes to make certain improvements to the . > street End and Easement Parcel. F. Whereas, the Owner warrants that to the best of its knowledge it has free and clear title to the Easement Parcel and shall at the City's request and expense, provide the City with a title insurance policy referencing same. NOW, THEREFORE, in consideration of the foregoing, which recitals are specifically incorporated into this Agreement, and in consideration of the mutual covenants herein contained, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, it is agreed as follows: 1. TITLE OF AGREEMENT. This Agreement shall be known as, and may be cited as, the "Lincoln Road street End Agreement." 2. DEFINITIONS OF TERMS. As used in this Agreement, the fOllowing words and terms shall have the following meanings, unless another meaning is plainly intended. a. city means the city of Miami Beach, Florida. b. city commission means the city commission of the city of Miami Beach, Florida, the governing body of the city. c. citv Manaqer means the City Manager of the City of Miami Beach, Florida. d. Easement Parcel means the twenty foot (20') wide right-of-way at the approximate elevation of the lobby garage on the southerly Abutting Property, with Owner reserving all subsurface rights, (inclUding the right to construct and operate structured parking under the Easement Parcel, but Developer shall pay all costs of the concrete structure for the subsurface parking - including the concrete deck for the Easement) with point of beginning at the easterly most point of the street End and continuing in an easterly direction to the easterly most point of the Owner's property: and as more fully described in the attached Exhibit "A". e. Abuttinq Properties means the properties owned by , 2 the Owner adjacent to and abutting the Street End and Easement Parcel. f. Project' means the development and improvements undertaken by the city upon the Street End and Easement Parcel. g. Street End means that portion of Lincoln Road commencing at Collins Avenue and running easterly to the point of the existing cul-de-sac and is adjacent to and north and south of the property lines of the Owner. h. Notice of Default means a written notice to a party that it is in default of its obligations under this Agreement and that such default must be remedied as required hereunder, and within applicable time periods. 1. Notice of Intention to Terminate means a written notice to a party that a default has not been cured as required under this Agreement. j. Budget means the anticipated budget or summary of costs of the design, construction, and development of the Project. 3. APPLICATION AND SCOPE OF AGREEMENT. It is the intention of the City and the Owner that this Agreement shall govern the rights, duties, privileges and obligations of the owner, and the city, and their successors in interest and assigns, with respect to various aspects of the development of the Project, and the benefits and burdens hereof shall bind and inure to the parties hereto, and to their successors in interest. 4. ASSIGNMENT OF RIGHTS. Owner shall not have the right to sell, assign, transfer or otherwise convey its interests under this Agreement, either in whole or in part, without the prior written consent of the city, which consent shall not be unreasonably withheld or delayed, but which will allow City to determine whether a prospective assignee is a financially capable successor, as determined by such documents and business and financial records which city may reasonably request from Owner or from such a prospective assignee. Notwithstanding anything herein above 3 stated, Owner Crescent Heights XXX shall be entitled to assign its rights and obligations under this Agreement one time only to the Decoplage Condominium Association, Inc, 5. DEDICATION OF EASEMENT. The Owner agrees to dedicate the Easement Parcel pursuant to the following terms: a. Owner shall execute and deliver to city, the Grant of Permanent Easement, attached hereto as Exhibit "B", and the Restrictive Covenant, attached hereto as Exhibit "C", and city shall accept same, at the same time that City approves a construction contract for the improvements to the street End and the Easement Parcel, provided such construction contract is entered into after the Easement Parcel is valued pursuant to Section 7 and within one hundred twenty (120) days from the date of execution of this Agreement. b. It is further understood that this Agreement is approved on the representation by the Owner that to the best of its knowledge, city has no present rights to the Easement ParceL However, the City may at its discretion conduct its own title search to determine same and may further require Owner to provide it with a title insurance policy satisfactory to the City, but said policy to be at the city's sole cost and expense. c. At any time within one hundred twenty (120) days prior to the execution of the Grant of Permanent Easement by Owner and acceptance of same by City, either Owner may terminate this Agreement by written notice to the City. In the event of such termination, Owner shall reimburse City for the cost of the appraisal of the Easement Parcel, pursuant to Paragraph 7. d. city and Owner agree that Owner has reserved certain rights within the Grant of Permanent Easement, as set forth in Exhibit "B" attached hereto and made a part of this Agreement, including the right to construct a pedestrian crossover and structured parking facilities on 4 the Easement Parcel. In the event of the design and construction of the aforestated structures, and as more fully described in Exhibits "B" and "C" to this Agreement, Owner agrees that the plans "for same shall be in conformity with all applicable state, county and local laws and regulations and subject to all applicable design and zoning approvals by the city in the normal course of its Plan Approval Process inclUding, but not limited to, the application by Owner to the Board of Adjustment for a variance to develop and construct the proposed structures described above. 6. CITY RESPONSIBLE FOR DESIGN AND CONSTRUCTION. Subject to the Owner approvals as set forth herein, City shall be responsible for entering into all contracts necessary for design and construction of the Project, the cost for which shall not exceed $450,000 (Four Hundred Fifty Thousand and 00/100 Dollars). A budget will be established with a fifteen percent (15%) contingency. If the construction cost estimates and/or bids for the construction exceed the budgeted amount, elements will be deleted to bring the Project in budget with the Owner and/or the City having the right at their sole discretion and expense to fund any deleted elements. 7. VALUATION OF EASEMENT. For the purpose of this Agreement, the parties herein agree to establish the value of the Easement at one hundred fifty thousand dollars ($150,000). The parties further agree that they shall solicit independent appraisal, by a mutually agreed upon appraiser; of the Easement parcel, the cost of said appraisal to be paid for by the City prior to the commencement of the appraisal work, In the event the appraisal is less than $150,000.00 then the Owner shall have the right to either terminate this Agreement within thirty (30) days of receipt of the appraisals, or agree to contribute to the cost of development of the Project the sum equal to the difference between the $150,000 Easement value and the 5 appraisal amount up to $50,000.00. 8. PROJECT CONCEPT. The designs, drawings and plans for the development of the Project shall be prepared by the architectural firm of Benjamin Thompson & Associates (BTA), the architects for the Lincoln Road Revitalization Program. The Owner shall have the right to prior approval of schematic design plans, design development plans and construction plans, as defined by and provided for in paragraph 9 of this Agreement. The parties acknowledge that the final design shall reflect the overall design theme of the Lincoln Road Revitalization project for which BTA has been retained. The parties further agree that during the architectural design stage, the Lincoln Road Task Force shall be consulted as to the design of the Project. Said designs, drawings and plans for the development of the Project shall provide for or contain certain minimum requirements as follows: a. Not less than fifty percent (50%) of existing parking meters (currently located on Street End) shall remain; b. Ingress and egress (driveways) to the Abutting Properties be applicable and conducive to the existing buildings; c. Appropriate vehicular turn around at east end of Street End; d. Lighting; e. I.andscaping; f. Irrigation for landscaping; g. Sidewalk; h. Drainage; 1. Signage; j. street furniture; k. Improvements to the Easement Parcel, including lighting, sidewalk and other amenities. 6 9. CONSTRUCTION/PI.AN APPROVAL. a. All designs, drawings and plans necessary for city to bid the construction of the Project shall be prepared by BTA. b. The Owner shall hav the right to prior approval of the schematic design pla s, design development plans and construction plans for he project. Owner's approval shall not be unreasonab y withheld or delayed. Failure of Owner to respond with n 15 days of receipt of written notice and plans by Own r shall be deemed approval. c. The city will the construction documents in conformance with the ci y's procurement guidelines for construction 'projects 0 similar scale. 10. OF CONSTRU TIO. Within 30 days after award of the construction contract the c'ty shall cause the contractor to commence construction of the proje t in substantial accordance with the approved construction plans. otwithstanding other portions of the Agreement relating to the cit 's performance, city agrees that it will SUbstantially complete c nstruction on the project within six (6) months after commencemen of same. However, should City provide Owner with written notic prior to its completion of the Project, said notice stating hat the Project will not be substantially completed (6) month time frame stated herein, the Owner agrees city one automatic ninety (90) day extension commencing originally anticipated date of completion within which to subst ntially complete the Project. 11. P OGRESS OF CONSTRUCT ON. The construction documents shall require the contracto to diligently proceed with construction of the Project in a cordance with a progress schedule to be included as part of the construction plans. The City shall cause the construction contracto to construct the Project in such a manner so as to maintain acce s to the DiLido and the Decoplage at all times. In the event f any substantial change to the Project which substantially or materially affects the Abutting Properties the Owner shall be co sulted. Subject to the provisions 7 faith in a reasonable attempt to modify this Agreement to comply with such federal, county, or state law or regulation. 14. DEFAULT, REMEDIES AND TERMINATION. In the event that any party believes that the other party to this Agreement is in default with respect to any term of condition herein contained, the party alleging such default or breach shall give the breaching party written Notice of Default. The Notice of Default shall specify the nature of the alleged default; and, where appropriate, the manner and period of time in which said default may be satisfactorily cured. In no event shall the periOd of time referred to herein above be less than thirty (30) days measured from the date of mailing of the Notice of Default. During any period of curing, the party charged shall not be considered in default for the purposes of termination or institution of legal proceedings. If the default is cured, then no default shall be deemed to have existed, and the noticing party shall take no further action. After proper Notice of Default, and the expiration of said curative period, the noticing party to this Agreement may, at its option, institute legal proceedings for enforcement of this Agreement, or give Notice of Intention to Terminate this Agreement, or both, Furthermore, the parties may enforce such rights or remedies as they may have under this Agreement subject to the limitations contained in the Arbitration and/or Limitation of Liability Clauses below. In the event that litigation is commenced to interpret, enforce, terminate or otherwise determine the rights of the parties hereunder, then the prevailing party in any such litigation shall be entitled to collect reasonable attorneys' fees, court costs and other direct costs incurred in prosecuting or defending the action from the opposing party. 15. NONWAIVER, Failure or delay in giving Notice of Default pursuant to this Agreement shall not constitute a waiver of any default. Except as otherwise expressly provided in this Agreement any failure or delay by the other party in asserting any of its rights or remedies as to any default shall not operate as a waiver 9 '. of any default or of any such rights or remedies, or deprive such party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies, subject to such limitations as are contained in the' Arbitration and/or Limitation of Liability Clauses below. 16. ENFORCED DELAY AND EXTENSION OF TIME FOR PERFORMANCE. Performance by either party hereunder shall not be deemed to constitute a default where delays or inability to proceed in accordance with the terms hereof are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, hurricanes, casualties, acts of God or moratoria imposed or mandated by other governmental entities, enactment of conflicting state or federal law or regulations, new or supplementary environmental regulations, litigation by third parties, or similar bases for excused performance. If written notice of such delay or inability to proceed, is given to either party within thirty (30) days of the commencement of the condition causing the delay or inability to proceed, then the parties shall meet and extend the time or performance by mutual agreement. l7. ARBITRATION CLAUSE. Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration RUles of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy 10 or claim relating to the right to specific performance, shall be settled by litigation and not arbitration. 18. LIMITATION OF LIABILITY. The city desires to enter into this Agreement only if in so doing the city can place a limit on City's liability for any cause of action for money damages due to an alleged breach by the city of this Agreement, so that its liability for any such breach never exceeds the sum of Four Hundred Fifty Thousand Dollars ($450,000.00) less all amounts actually paid by the City as of the date of the alleged breach. Owner hereby expresses its willingness to enter into this Agreement with Developer's recovery from the city for any damage action for breach of contract to be limited to a maximum amount of Four Hundred Fifty Thousand Dollars ($450,000.00), less the amount of all funds actually paid by the City to Owner pursuant to this Agreement. Accordingly, and notwithstanding any other term or condition of this Agreement, Owner hereby agrees that the City shall not be liable to Owner for damages in an amount in excess of Four Hundred Fifty Thousand Dollars ($450,000.00) which amount shall be reduced by the amount actually paid by the City to Developer pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the city by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Florida statutes, Section 768.28. Notwithstanding anything herein to the contrary, in the event the Project is not substantially completed within, the time frames specified herein, subject only to Sections 11 and 16 herein, then the Easement Parcel shall be conveyed back to Owner by city. 19. ENTIRE AGREEMENT. This Agreement represents the entire agreement of the parties hereto and no prior or present agreements or representations shall be binding upon either of the parties hereto, unless specifically incorporated herein by reference, whether such prior present agreements have been made orally or in writing_ No modification change, amendment or extension of the 11 ~ terms or provisions of this Agreement shall be valid or binding upon either one of the parties, unless in writing, and executed by the parties to be bound thereby. 20. NOTICES AND DEMANDS. All formal notices, demands, correspondence and communications between the City and the Owner shall be deemed sufficiently given under the terms of this Agreement if dispatched by certified mail, postage prepaid, return receipt requested, as follows: As to City of Miami Beach: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 with a copy to: City Attorney City of Miami Beach l700 Convention Center Miami Beach, Florida Drive 33139 As to Owner: Crescent Notice Joint Venture c/o Russell W. Galbut 100 Lincoln Road Miami Beach, Florida 33139 Bruce Menin 100 Lincoln Road Miami Beach, Florida 33139 with a copy to: Abraham A. Galbut, Esq. Galbut, Galbut, Menin & Wasserman, P.A. 999 Washington Avenue Miami Beach, Florida 33139 and Bruce Lazar, Esq. Therrel Baisden & Meyer Weiss 1111 Lincoln Road Miami Beach, Florida 33139 or to such other address and to the attention of such other person as the city or the Owner may from time to time designate by written notice to the other. 21. REPRESENTATIONS AND WARRANTIES OF DEVELOPER. warrants and represents to City that: Owner 12 a. Crescent Heights XXX, Inc., is a duly existing Florida Corporation. b. Dilido Beach Corporation is a duly existing Florida corporation. c. Each of the above corporations has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Agreement and perform its obligations hereunder. d. Each corporation's execution, delivery, and performance of this Agreement has been duly authorized by, or is in accordance with, its organic instruments, this Agreement has been duly executed and delivered for it by the signatories so authorized, and it constitutes its legal, valid and binding obligations. e. Neither corporation's execution, delivery, and performance, of this Agreement will result in a breach or violation of, or constitute a default under, any agreement, lease or instrument to which it is a party or by which it or its properties may be bound or affected; and f. Neither corporation received any notice, nor to the best of its knowledge is there pending or threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially adversely affect its ability to perform hereunder. g. To the best of Owner's knowledge, the City presently has no legal rights to the Easement Parcel. 22. TIME IS OF THE ESSENCE. The parties specifically agree that time is of the essence regarding the development and construction of this Project. 23. CAPTIONS. The captions of this Agreement are for convenience and reference only, and in no way define, describe, extend, or limit the scope or intent hereof. 13 24. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns. 25. GOVERNING LAW - VENUE. This Agreement shall be governed in its enforcement, construction, and interpretation by the laws of the State of Florida. Any litigation arising between the parties with respect to this Agreement, or the property described in Exhibit "13" attached hereto, shall be instituted and maintained in the Circuit Court of Dade county, Florida. IN WITNESS WHEREOF, this Agreement has been executed by the parties on the day and year first above written. CITY ATTORNEY MAYOR By ATTEST: '],uL.o-A ?_,~ C Y CLERK CRESCENT HEIGHTS XXX, INC., a Florida corporation Ba~~ . ,vf 1 ,L 6.frl~ A. HG"N/IoI Vice President and DILIDO BEACH HOTEL CORP., a a);orpora ion By Tit e: STATE OF FLORIDA ) ) ) SS: COUNTY OF DADE ~ I.. H~I..L I HEREBY CERTIFY the foregoing instrument was acknOWledged before me this ~ day of M"""CJ..I. ,199~ by RYgSIU..l. W. BALB6T as Vice President of CRESCENT HEIGHTS XXX, INC., a Florida corporation, personally known to me LllriRr who produced as i~~~~ and who did or -1L did not take an oath. N t!!:>tY- ?A~7,;?t~W~~~S - put>\rc~~l:80J!UlU fAIhu NOTARY PUBLIC, STATE OF FLORIDA TYPE/WRITE NAME: ~,.s A,rtfoll-O My commission expires: 14 STATE OF FLORIDA ) ) 55: COUNTY OF DADE ) I HER1: CERTIFY the foregoing ~pjltru!'~J1t was aCknor/.edged b",r'P~e II m t;.hilli -.I, ~ day /J of} ~ ' 19 , by ~~ ~as~&:t~ of DILID BEACH HOTEL CORP., a Florida corporation, personally known to me or who prod1ced 'de~tification and who did or _ did not take an oath. Notary STA~le60 D Soiz Public /,Iv c F FLORIDA , omm Exp4 8/.94 :L ~E ' NOTARY UBLIC, 5 ATE F FLORIDA My commission expires: TYPE/WRITE NAME: /J4~UJ P. S-4/2- jm\e:rJa\lrst.agr June 21, 1993 15 '.. .~... ~~.......~ .~. 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': ~ ~ In ~' B! i:: ' .~ ' , tit . ;) I, I . ", e. '-:S. . ". .1.... . : ','- '~ '. l.r ...'~.. J::g i '. , ' ~ .,;, . " ' .' . U .. . . '. lit 4"'.',-#~~.~. " '. " .' '~""~?~.., .' ". . 'EXHi~IT .A" page 2 of 2 , '. GRANT OF PERMANENT EASEMENT THIS GRANT OF EASEMENT made this day of 1993, between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida (hereinafter referred to as "City") and CRESCENT HEIGHTS XXX, INC. a Florida corporation and Dilido Beach Hotel corporation, a Florida corporation, whose principal address is Miami Beach, Florida , (hereinafter referred collectively to as the "Grantors"). WIT N E SSE T H : WHEREAS, Crescent Heights XXX, Inc, is the fee simple owner of the following described property, inserted as Exhibit "Bl" and attached hereto, and Dilido Beach Hotel Corporation is the fee simple owner of the following described property, inserted as Exhibit "B2" and attached hereto, (Which properties are hereinafter collectively referred to as the "Easement Parcel") KNOW ALL MEN BY THESE PRESENTS that the Grantors, for and in consideration of the sum of Ten Dollars ($10.00) to them in hand paid by the City, the receipt whereof is hereby acknowledged, hereby grant, sell and convey to the City, its successors and assigns forever: A permanent easement for the sole purposes of EXHIBIT "B" providing to the public and to Grantee, its invitees, licensees and lessees a way of passage and access to, and reasonable use of, the Easement Parcel as a (i) pedestrian right- Of-way for access from the street end to the beach and Atlantic Ocean, and (ii) for the installation, relocation or maintenance of utilities and above ground lighting serving the Easement parcel, and the City shall maintain same. Grantors herein release their claims, rights, and privileges, and such claims, rights and privileges to the Easement Parcel of granting same to others, including its successors and assigns subject to the fOllowing reservations: (1) Grantors reserve the right to construct at its sole cost and expense a pedestrian crossover above thirty feet (30') with a height of ten feet (10') and a width of twenty feet (20'), the plans for which shall be in conformity with all applicable state, county and local laws and regulations and subject to all applicable design and zoning approvals by the City in the normal course of its Plan Approval Process, including, but not limited to, the application by Grantors to the Board of Adjustment for a variance to develop and construct the proposed structure described herein. In no way shall such pedestrian crossover inhibit the access of the public across the Easement Parcel. (2) The Grantors reserve the right to construct at its sole cost and expense structured parking facilities below elevation __I~,O' ~ , the plans for which shall be in conformity with all applicable state, county and local laws and regulations and subject to all applicable design and zoning approvals by the City in the normal course of its Plan Approval Process, including, but not limited to, the application by Grantors to the Board of Adjustment for a variance to develop and construct the proposed structure described herein. In no way shall such parking facilities inhibit the access of the public across the Easement Parcel. , . All improvement constructed by Grantors pursuant to the above reservations shall be maintained by the Grantors, This Grant of Easement shall insure to the benefit of and be binding upon the City and the Grantors, and their respective successors and assigns. IN WITNESS WHEREOF, Grantors have hereunto set then hands and seals at Miami Beach, Dade County, Florida, at the date first above written, FORM APPROVED: CITY OF MIAMI BEACH By CITY ATTORNEY MAYOR ATTEST: CITY CLERK CRESCENT HEIGHTS XXX, INC., a Florida corporation By RJlSfELL ~L ~AI:.!ltl'1'- I'ltltCd A. hfl1J/,J Vice President and DILIDO BEACH HOTEL CORP., a Florida corporation By Title: STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) , . ~A.h~".J I HEREBY CERTIFY the foregoing instrument was acknowledged before me this _ day of , 1993, by IHJ&&ELL ~~. CALBU~as Vice President of CRESCENT HEIGHTS XXX, INC., a Florida corporation, personally known to me or who produced as identification and who did or did not take an oath, My commission expires: NOTARY PUBLIC, STATE OF FLORIDA TYPE/WRITE NAME: STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) I HEREBY CERTIFY the foregoing instrument was acknOWledged before me this day of , 1993, by as of DILIDO BEACH a Florida corporation, personally known to me or who as identification and who HOTEL CORP., produced did or did not take an oath, My commission expires: NOTARY PUBLIC, STATE OF FLORIDA TYPE/WRITE NAME: (jm:rja\grtease) ,". .." \"1" , ." 1 ~. . ~. t ~. :t) fit " , ..~ . . b, . , ,j.,' , 'j liii"\! ': zt:'l 'r' ft ........ " ... 'llI. '....:1 "r it!..:s. r "jJ :.-il'=", = . ~..Ir.. .. I..:t. : ~""I.' .. .... "I .. .. f I.~": ;:. !!I!!!I i ' i:~..l! · s:.". ~ !h..l:' .. "1"'! I , "-I t4~ ..., .. .!. .it!::" '" "1- -, : .. ,..a.t,_ I li!I~;; :' ~;'U;II ..., . 'r!1r'iJi . :Z:'~:'... : .... 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RESTRICTIVE COVENANT CRESCENT HEIGHTS XXX, INC, a Florida corporation, the owner of Parcel 1 below, and DILIDO BEACH HOTEL CORPORATION, a Florida corporation, owner of Parcel 2 below (collectively the "Owners"), their successors, heirs and assigns, hereby agree and covenant that the following property located in Dade County, Florida, and legally described as: PARCEL 1 SEE ATTACHED EXHIBIT "Cl" PARCEL 2 SEE ATTACHED EXHIBIT "C2" (Collectively the "Easement Parcel") shall be subject to the following covenants and restrictions: No building or structure, whether permanent or temporary, shall be erected or placed in the required side yard setbacks as established by City of Miami Beach Zoning Ordinance 89-2665, and as same may be amended from time to time. Notwithstanding the above, no building or structure, whether permanent or temporary, shall be erected or placed within five feet (5') on either side of EXHIBIT "C" the Easement Parcel, thereby establishing a five foot (5') set back; provided that such restriction shall not preclude Owners from using such five foot area for an outdoor cafe subject to compliance with appropriate ordinances and laws of the City. The foregoing covenants and restrictions shall be considered and construed as covenants and restrictions running with the land, and the same shall bind all persons claiming ownership of all or any portion of the subject property. The Owners hereby acknowledge and agree that the City of Miami Beach is a beneficiary of this Restrictive Covenant, and the Owner shall not release or amend this Restrictive Covenant without the prior written consent of the city of Miami Beach. Invalidation of any of these covenants by a Court of competent jurisdiction shall in no way affect any of the other covenants which shall remain in full force and effect. IN WITNESS WHEREOF, the Owner has hereunto set its hand and seal at Miami Beach, Dade County, Florida, at the date first above written. FORM APPROVED: CITY ATTORNEY ATTEST: CITY CLERK and STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) CITY OF MIAMI BEACH By MAYOR CRESCENT HEIGHTS XXX, INC., a Florida corporation By RlJElElE{.L U. ChLOO'f J5~ fi,. nttIJ,,j Vice President DILIDO BEACH HOTEL CORP., a Florida corporation By Title: 13IZ<<cs' A. t1~"J I HEREBY CERTIFY the foregoing instrument was acknowledged before me this _ day of , 1993, by Rt/&&ELL l~. OALB6T as Vice President of CRESCENT HEIGHTS XXX, INC., a Florida corporation, personally known to me or who produced as identification and who did or did not take an oath. My commission expires: NOTARY PUBLIC, STATE OF FLORIDA TYPE/WRITE NAME: " STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) I HEREBY CERTIFY the foregoing instrument was acknowledged before me this day of , 1993, by as of DILIDO BEACH a Florida corporation, personally known to me or who as identification and who HOTEL CORP., produced did or did not take an oath. My commission expires: NOTARY PUBLIC, STATE OF FLORIDA TYPE/WRITE NAME: CRESCENT HEIGHTS XXX, INC., a Florida corporation By mmGl'lLl. \1. CAUlB'f ~ A . helJ/,J vice President and DILIDO BEACH HOTEL CORP., a Florida corporation By Title STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) I HEREBY CERTIFY the foregoing instrument was acknowledged before me this _ day of , 1993, by personally known to me or who produced as identification and who or did not take an oath. 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