Loading...
98-22788 RESO " I, " RESOLUTION NO. 98-22788 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE VACATION OF THAT PORTION OF LINCOLN ROAD, NORTH OF THE CENTER LINE OF THE EXISTING ROAD RIGHT-OF-WAY LYING EAST OF THE EASTERN RIGHT-OF-WAY LINE OF COLLINS AVENUE, AND WHICH IS CONTIGUOUS TO THE DI LIDO BEACH HOTEL PROPERTY, LOCATED AT 1669 COLLINS AVENUE, IN FAVOR OF DI LIDO BEACH HOTEL CORPORATION; CONDITIONED UPON THE FOLLOWING: A LINCOLN ROAD ACCESS EASEMENT, TO BE GRANTED TO THE CITY BY DI LIDO BEACH HOTEL CORPORATION FOR PUBLIC PEDESTRIAN AND VEHICULAR TRAFFIC, ON, ACROSS, AND THROUGH THE PROPOSED VACATED PROPERTY (LINCOLN ROAD ACCESS EASEMENT); A PERMANENT, CONTINUOUS PEDESTRIAN EASEMENT FOR ACCESS BY THE PUBLIC FROM THE LINCOLN ROAD ACCESS EASEMENT AREA, THROUGH THE DI LIDO PROPERTY, TO THE BEACH; AND CERTAIN LINCOLN ROAD IMPROVEMENTS, TO BE PROVIDED PURSUANT TO THE PROVISIONS OF THAT CERTAIN DEVELOPMENT AGREEMENT BETWEEN THE CITY AND DI LIDO BEACH HOTEL CORPORATION; PROVIDING THAT THE "SECOND CLOSING," AS SAME IS DEFINED IN THE DEVELOPMENT AGREEMENT BE A CONDITION PRECEDENT TO THE VACATION, AND THAT SAID VACATION SHALL ONLY BE EFFECTIVE IF THE SECOND CLOSING OCCURS; AND WAIVING THE REQUIREMENTS OF APPRAISALS AND COMPETITIVE BIDS IN CONNECTION WITH THE APPROVAL OF SAID VACATION; AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE ALL DOCUMENTS NECESSARY TO EFFECTUATE SAID VACATION. WHEREAS, Di Lido Beach Hotel Corporation owns the property located at 1669 Collins Avenue (Di Lido Property) and intends to redevelop the current hotel located on the property and portions of the commercial building also located thereon into a Ritz-Carlton Hotel, substantially in accordance with the provisions of that certain Development Agreement entered into between the City and Di Lido Beach Hotel Corporation, dated May 20, 1998, and approved pursuant to Resolution No. 98-22750; and WHEREAS, in accordance with its planned redevelopment, Di Lido Beach Hotel Corporation, as the owner of the adjoining Di Lido Property, has requested that the City vacate that portion of Lincoln Road, north of the center line of the existing road right-of-way line east of Collins Avenue and which is contiguous to the Di Lido property (the Lincoln Road Property); and I . WHEREAS, the City is desirous of constructing and extending its Beachwalk through and across the beach portion of the Di Lido Property, in order to provide recreational facilities for its citizens; and WHEREAS, the City, in cooperation with Di Lido Beach Hotel Corporation, also wishes to make substantial improvements to that certain portion of Lincoln Road lying east of the eastern right-of-way line of Collins Avenue (the Lincoln Road Section) and to obtain from Di Lido Beach Hotel Corporation a permanent, continuous pedestrian easement for access by the public from the Lincoln Road Access Easement area, through the Di Lido Property, to the beach; and WHEREAS, Di Lido Beach Hotel Corporation is willing to grant said easement (the Di Lido Easement) for public purposes as part of its planned redevelopment; and WHEREAS, the Administration would recommend that the Mayor and City Commission approve the proposed vacation of the Lincoln Road Property, in favor of Di Lido Beach Hotel Corporation, conditioned upon the following: the grant by Di Lido Beach Hotel Corporation to the City of a Lincoln Road Access Easement, as referenced in the Development Agreement and attached hereto and incorporated herein as Exhibit A; the grant by Di Lido Beach Hotel Corporation to the City of the Di Lido Easement, as referenced in the Development Agreement and attached hereto and incorporated herein as Exhibit B; and Di Lido Beach Hotel Corporation's commitment to expend funds to prepare plans and to construct improvements, referenced, respectively in the Development Agreement as the Lincoln Road Plans and Lincoln Road Improvements; and WHEREAS, following guidelines and requirements set forth in preceding vacation requests, as well as the requirements of Ordinance No. 92-2783, governing the sale and lease of City-owned property, a duly noticed public hearing to consider the afore stated vacation request was held by the Mayor and City Commission on June 17,1998; and WHEREAS, the Administration would further recommend that the proposed vacation be effective at the time of the "Second Closing," as same is defmed in the Development Agreement, and that, for any reason, should the conditions to the Second Closing not be satisfied by the date provided for in the Development Agreement, and the Agreement expires or terminates, as more particularly provided therein, then the vacation approval set forth herein shall not be effectuated, be null and void, and have no further force or effect; and WHEREAS, accordingly, the Second Closing, as contemplated in the Development Agreement, should be a condition precedent to the proposed vacation; and WHEREAS, concurrent with its approval of the proposed vacation set forth herein, the Administration would recommend that the Mayor and City Commission further waive, by 5/7ths vote, the appraisal and competitive bidding requirements set forth under Ordinance No. 92-2783. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: 2 , . " Section 1. That the City approves the vacation of the center line of the existing road right-of-way lying east of the eastern right-of-way line of Collins Avenue, which is contiguous to the Di Lido Beach Hotel property, located at 1669 Collins Avenue, in favor ofDi Lido Beach Hotel Corporation, conditioned upon the grant by Di Lido Beach Hotel Corporation to the City of the Lincoln Road Access Easement (Exhibit A); the Di Lido Easement (Exhibit B); and Di Lido Beach Hotel Corporation's commitment to expend funds to prepare the Lincoln Road Plans and construct the Lincoln Road Improvements, all as specifically set forth in the Development Agreement between the City and Di Lido Beach Hotel Corporation, dated May 20, 1998, and approved pursuant to Resolution No. 98-22750. Section 2. That, in addition to the preceding conditions, the "Second Closing," as same is defined in the Development Agreement, shall be a condition precedent to the aforestated vacation and, in the event that, for any reason, the conditions of the Second Closing have not been satisfied within the time period prescribed by the Development Agreement, and the Agreement expires or terminates, as more particularly provided therein, then this approval and the vacation herein shall be null and void and have no further force or effect. Section 3. That the Mayor and City Commission herein declare that it is in the interest of the public to waive the bidding and appraisal requirements of Ordinance No. 92-2783 in connection with the approval of this vacation. Section 4. That the Mayor and City Clerk are hereby authorized to execute all docwnents necessary to effectuate said vacation. PASSED and ADOPTED this 17th day of June , 1998. MAYOR7J ATTEST: ~() Pcuc1uA CITY CLERK F:\A TTO\AGUR\RESQS\LINCOLN. V AC APPROVED AS TO FORM & lANGUAGE & FOR EXECUTION 1# 1/f1Optt:- Cllv Attorney tlt-w9 ( Date 3 '1'.'. " Prepared by and Return to: - Joseph M. liemand~sq. Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. 1221 Brickell Avenue Miami, FL 33131 ;- GRANT OF PERPETUAL EASEMENT FOR BEACH ACCESS TIDS GRANT OF EASEMENT (this "Easement") is made this _ day of , 1998, by Dr LIDO BEACH HOTEL CORPORATION, a Florida corporation (the "Owner") having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the CITY OF MIALvfI BEACH, a Florida municipal corporation (the "City"), having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida. WHEREAS, the Owner owns that certain property situated, lying and being in Dade County, Florida, known as the Di Lido Beach Hotel located at 155 Lincoln Road, Miami Beach, Florida, and as more particularly described in Schedule "A" attached hereto (the "Property"); WHEREAS, the City and the Owner entered into that certain Agreement dated as of , 1998, recorded in Official Records Book , at Page , of the Public Records of Miami-Dade County (the "Development Agreement"), which constitutes a development agreement pursuant to the Florida Local Government Development Act, Section 163.3220, et. seq., Florida Statutes (the "Act") and which contemplates the renovation of the existing hotel and commercial building located on the Property (the "Planned Development"); WHEREAS, pursuant to the Development Agreement the Owner has agreed to grant to the City a perpetual easement for the purpose of providing public access from the Easterly end of Lincoln Road to the beach and Atlantic Ocean through that portion of the Property which is approximately twenty (20) feet in width, as more particularly described in Schedule "B" attached hereto (the "Easement Parcel") in exchange for, among other things, the issuance of development permits and approvals in order to develop the Planned Development; and WHEREAS, pursuant to the Development Agreement, the Owner has agreed to construct certain improvements on the Easement Parcel (the "Improvements"). NOW THEREFORE, in consideration of Ten and No/100 Donars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Owner by these presents hereby grants, sens, and conveys to the City, its successors and assigns, a perpetual easement on, in, and over the Easement Parcel for the purpose of providing 7 EXHIBIT A public'access)i:o~;th~ Easterly end of Lincoln Road to the beach and Atlantic Ocean and for the purpose of installing, laying, constructing, operating, inspecting, maintaining, repairing, and replacing a public pedestrian walkway in order to provide such public access to the beach and the -Atlantic O~~. ..., . .'. I ,- The Owner and the City further agree to the following: 1. The Owner hereby grants to the City its employees, contractors, or representatives, the permanent right and license for purposes of ingress and egress to and from the Easement Parcel for the purposes of laying, constructing, operating, inspecting, maintaining, repairing, and replacing the pedestrian walkway, landscaping, lighting and irrigation, and all other related improvements to be constructed on the Easement Parcel. 2. The City shall have the sole responsibility and shall bear the total cost for the maintenance of the Improvements, except for any repairs or maintenance arising from the negligence of the Owner or any successor thereto. 3. The parties hereto acknowledge and agree that the Easement Parcel and the Improvements thereon are intended to be used and maintained in a manner which is consistent with the standard of maintenance for the Lincoln Road Mall. The City agrees that it shall insure and provide security for the Easement Parcel and the Improvements in the same manner as it provides security for its public sidewalks and right-of-ways. 4. The Owner reserves unto itself, its successors and assigns, the perpetual right and privilege of: a. Right of ingress and egress to and from the Easement Parcel for construction access to the Property, provided that Owner shall bear the cost for repairing any damage to the Easement Parcel or Improvements, resulting from such construction; and b. Unrestricted access to, over, across and in the Easement Parcel, provided that Owner shall not use the Easement Parcel for vehicular traffic and Owner's use of the Easement Parcel shall not materially interfere with the continued use of the Easement Parcel as permitted herein by Grantee and the public. 5. Owner shall not construct or permit to be constructed any structure or obstruction on or over or interfering with the construction, maintenance, or any other aspect of the Improvements located upon the Easement Parcel. 2 ] . . ~ . ',' '" ii' " ' ; , . 6. .. O......ner covenants, warrants and represents that (i) it is the fee simple owner of tiie Easement Parcel and has the right, title, and capacity to grant the perpetual easement granted herein, and (ii) is the sole lienor and . '.. holder~ a recorded (or unrecorded) security interest in the Easemeut ~a;~el. . 7. This grant of perpetual easement shall inure to the benefit of and be binding upon the heirs, legal representatives, successors and assigns of the parties hereto, as applicable. 8. Notices. Any notices required or permitted to be given under this Easement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the City at: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager, City Attorney If to Owner at: c/o Bruce Lazar, Esq. Seville Beach Hotel, Suite M 2901 Collins Avenue Miami Beach, FL 33140 (if not in leave with concierge) With a copy to: Juan P. Loumiet, Esq. Greenberg, Traurig, Hoffman, Rosen & Quentel P.A. 1221 Brickell Avenue Miami, Florida 33131 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall . be deemed given three (3) days after deposit in the U.S. mails. The terms of this Section shall survive the termination of this Easement. 9. Construction. (a) This Easement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Easement shall not be more strictly construed against anyone of the parties hereto. 3 1 ~) ~ (c) 10. 11. l, " In construing this Easement, the use of any gender shall include every other and all ~nders, and captions and section and paragraph headings shall b.e ciisregarded. , -- All of the exhibits attached to this Easement are incorporated in, and made a part of, this Agreement. Severabilitv. In the event any term or provision of this Easement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or construed as deleted as such authority determines, and the remainder of this Easement shall be construed to be in full force and effect. Litigation. In the event of any litigation between the parties under this Easement for a breach hereof, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The terms of this Section shall survive the termination of this Easement. 12. Time of Essence. Time shall be of the essence for each and every provision hereof. 13'. Entire Agreement. This Easement, together with the documents referenced herein, constitute the entire agreement and understanding among the parties with respect to the subject matter hereof, and there are no other agreements, representations or warranties other than as set forth herein. This Easement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. 14. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, riot, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform, excluding the financial inability of such party to perform shall excuse the performance by such party for a period equal to any such period of prevention, delay or stoppage. IN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement to be executed by execution of this instrument as of this day of , 1998. Witnesses: Sign Name: Print Name: Sign Name: Print Name: THE OWNER Dr LIDO BEACH HOTEL CORPORATION, a Florida corporation By: Name: Title: 4 1 '1, '. , ~ ? CONSENT ,- The undersigned lienor, owner and holder of that certain [Mortgage] recorded in Official Records Book _, at Page _, of the Public Records of Miami-Dade County, hereby consents to the grant of easement rights as provided herein and subordinates the lien and effect of its security interest to this Easement. Sign Name: Print Name: Sign Name: Print Name: J , a By: Name: Title: 5 STATE OF FLORIDA " .. ? ) ) SS: ) ,- COUNTY OF DADE The foregoing instrument was acknowledged before me this day of , 1998 by , as of Di Lido Beach Hotel Corporation, a Florida corporation, on behalf of the corporation. He/She is personally known to me or has produced as identification and who did (did not) take an oath. NOTARY PUBLIC Typed or Printed Name of Notary My Commission expires: Serial No., if any: ACKNOWLEDGED AND ACCEPTED this by: day of , 1998 Witnesses: CITY OF MIAMI BEACH, a Florida mWlicipal corporation Sign Name: Print Name: By: Mayor Sign Name: Print Name: ATTEST: Robert Parcher, City Clerk 6 ] '. t. " STATE OF FLORIDA ..... .-- , ) )SS: ) ,- COUNTY OF DADE The foregoing instrument was acknowledged before me this day of , 1998, by , as Mayor of the City of Miami Beach, a Florida municipal corporation, on behalf of the Corporation. He is personally known to me or has produced as identification and who did (did not) take an oath. NOTARY PUBLIC Typed or Printed Name of Notary My Commission expires: Serial No., if any: MlAMI/HER.NANDEZJI946913Ik@nSOS!.DOClS/271911 7 ] , , Prepared by and Return to: . Joseph M. 'Memande~Esq. Greenberg, Traurig, Hoffman, tipoff, Rosen & Quentel, P.A. 1221 Brickell Avenue Miami, FL 33131 ,- GRANT OF PERPETUAL EASEMENT (LINCOLN ROAD) THIS GRANT OF EASEMENT (this "Easement") is made this _ day of , 1998, by DI LIDO BEACH HOTEL CORPORATION, a Florida corporation (the "Owner") having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida. WHEREAS, the Owner owns that certain property situated, lying and being in Dade County, Flori,da, known as the Di Lido Beach Hotel located at 155 Lincoln Road, Miami Beach, Florida, and as more particularly described in Exhibit "A" attached hereto (the "Property"); WHEREAS, the City and the Owner entered into that certain Agreement dated as of , 1998, recorded in Official Records Book , at Page , of the Public Records of Miami-Dade County (the "Development Agreement"), which constitutes a development agreement pursuant to the Florida Local Government Development Act, Section 163.3220, et. seq., Florida Statutes (the "Act") and which contemplates the renovation of the existing hotel and commercial building located on the Property (the "Planned Development"); WHEREAS, pursuant to the Development Agreement, the Owner has agreed to grant to the City a perpetual easement for the purpose of providing public pedestrian and vehicular access through and over that portion of Lincoln Road North of the center line of the existing road right- of-way lying East of the Eastern right-of-way line of Collins A venue and which is more particularly described in Exhibit "B" attached hereto (the "Easement Parcel") in exchange for, among other things, the City vacating its rights in and to the Easement Parcel and the issuance of development permits and approvals in order to develop the Planned Development; and WHEREAS, pursuant to the Development Agreement, the Owner has agreed to construct certain improvements as described therein (the "Lincoln Road Improvements") in and on that portion of Lincoln Road lying East of Collins Avenue (the "Lincoln Road Section") and on that portion of the Property which the Owner has granted the City certain easement rights in order to provide public access to the beach and the Atlantic Ocean and the City has agreed to construct the Lincoln Road Improvements. 1 EXHIBIT B . . . . . NOW THEREFORE, in consideration of Ten and No/IOO Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Owner by these presents hereby grants, sells, and conveys to the City, its successors and 'assigns, a plhpetual e~ment on, in, and over the Easement Parcel for the purpose of providing public pedestrian and vehicular access through and over the Easement Parcel and for th~ purp"ose' oflaying, constructing, maintaining, repairing and replacing the Lincoln Road Improvements. The Owner and the City further agree to the following: 1. The Owner hereby grants to the City its employees, contractors, or representatives, the permanent right and license for purposes of ingress and egress to and from the Easement Parcel for the purposes of laying, constructing, operating, inspecting, maintaining, repairing, and replacing the public roadway, public sidewalks, landscaping, lighting, utilities and irrigation, and all other related improvements to be constructed on the Easement Parcel. The Owner hereby also grants the City the right to use and occupy the subswface of the Easement Parcel for any utility or drainage or other use or purpose, including, without limitation, the right to construct, install, maintain and operate therein electrical, telephone, telegraph, telecommunication, gas, gasoline, sewer, water, and drainage fixtures and the Owner grants to the City the right to grant easements to third parties to do the same. 2. Following the completion of the Lincoln Road Improvements, the City shall have the sole responsibility and shall bear the total cost for the repair and maintenance of same, except for any repairs and maintenance arising from the negligence of the Owner or any successor thereto. 3. The City shall provide the same level of maintenance on the Easement Parcel and the improvements thereon as it currently provides for the Lincoln Road Mall. The City agrees that it shall insure and provide security for the Lincoln Road Section in the same manner as it provides security for its public sidewalks and right-of-ways. 4. The Owner reserves unto itself, its successors and assigns, the perpetual right and privilege of: a. Right of ingress and egress to and from the Easement Parcel for construction access to the Property, provided that Owner shall.bear the cost for repairing any damage to the Easement Parcel, resulting from such construction; b. Unrestricted access to, over, across and in the Easement Parcel, provided that such use does not materially interfere with the continued use of the Easement Parcel as permitted herein by Grantee and the public; and 2 1 . . '. " . c. Using and occupying, and granting to any parties providing utility service, telephone service and to other similar parties, the right to use and occupy the subsurface of the Easement Parcel for any utility or draimige or other ~se or purpose which does not materially interfere with the. non~~xc1usive , -- rights herein granted to Grantee, and its authorized invitees, agents, employees, guests, lessees and licensees, including, without limitation, the right to construct, install, maintain and operate therein electrical, telephone, telegraph, telecommunication, gas, gasoline, sewer, water, and drainage fixtures. '. .. 5. The parties agree that in connection with each of their respective rights to install and maintain utilities in the subsurface of the Easement Parcel pursuant to this grant of easement, each party (i) shall notify the other of its intention to install, repair or otherwise maintain such utilities, (ii) shall cooperate fully with the other party and take such steps as may be necessary to insure that any such installation, maintenance or repair of said utilities will not interfere with the use or functioning of existing utilities, (iii) shall, to the extent feasible, integrate any proposed installation, maintenance or repair with any proposed work of a similar nature by the other party, and (iv) shall not unreasonably interfere with the use of the Easement Parcel by the other party as permitted under this grant of easement. 6. Owner shall not construct or permit to be constructed any structure or obstruction on or over or interfering with the construction, maintenance, or any other aspect of the Lincoln Road Improvements located upon the Easement Parcel. 7. Owner covenants, warrants and represents that it is the fee simple owner of the Easement Parcel and has the right, title, and capacity to grant the perpetual easement granted herein. 8. This grant of perpetual easement shall inure to the benefit of and be binding upon the heirs, legal repres~ntatives, successors and assigns of the parties hereto, as applicable. 9. Notices. Any notices required or permitted to be given under this Easement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the City at: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33 139 Attn: City Manager, City Attorney 3 1 . .. ,,~ c/o Bruce Lazar, Esq. Seville Beach Hotel, Suite M 2901 Collins Avenue Miami Beach, FL 33140 (if not in leave with concierge) ,- If to Owner at: With a copy to: Juan P. Loumiet, Esq. Greenberg, Traurig, Hoffman, Rosen & Quentel P.A. 1221 Brickell Avenue Miami, Florida 33131 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. The terms of this Section shall survive the termination of this Easement. 10. Construction. (a) This Easement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Easement shall not be more strictly construed against anyone of the parties hereto. (b) In construing this Easement, the use of any gender shall include every other and all genders, and captions and section and paragraph headings shall be disregarded. (c) All of the exhibits attached to this Easement are incorporated in, and made a part of, this Agreement. 11. Severability. In the event any term or provision of this Easement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or construed as deleted as such authority determines, and the remainder of this Easement shall be construed to be in full force and effect. 12. Litiiation. In the event of any litigation between the parties under this Easement for a breach hereof, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The terms of this Section shall survive the termination of this Easement. 13. Time of Essence. Time shall be of the essence for each and every provision hereof. 4 1 . . , 14. Entire A~eement. This Easement, together with the documents referenced herein, constitute the entire agreement and Wlderstanding among the parties with respect to the subject matter hereof, and there are no other agreements, '" represljilltations or warranties other than as set forth herein. This Eas~ment may not be changed, altered or modified except by an instrument in writing signee[ by" the party against whom enforcement of such change would be sought. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, riot, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform, excluding the fmancial inability of such party to perform shall excuse the performance by such party for a period equal to any such period of prevention, delay or stoppage. IN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement to be executed by execution of this instrument as of this day of , 1998. 15. Witnesses: THE OWNER Dr LIDO BEACH HOTEL CORPORA nON, a Florida corporation Sign Name: Print Name: , Sign Name: Print Name: By: Name: Title: 5 1 . ; ',' CONSENT The undersigned lienor, owner and holder of that certain [Mortgage] recorded in Official Records Bobk ____,~ Page _, of the Public Records of Miami-Dade C"unty,. hereby consents to the grant of easement rights as provided herein and subordinates the lien and effect or' its security interest to this Easement. By: Name: Title: Sign Name: Print Name: Sign Name: Print Name: 6 1 STATE OFF1..0R.IDA COUNTY OF DADE . .... ;? The foregoing instrument was acknowledged before me this day .of , 1998 by , as of Di Lido Beach Hotel Corporation, a Florida corporation, on behalf of the corporation. He/She is personally known to me or has produced as identification and who did (did not) take an oath, ) ) SS: ) NOTARY PUBLIC Typed or Printed Name of Notary My Commission expires: Serial No., if any: ACKNO'WLEDGED AND ACCEPTED this by: day of , 1998 Witnesses: CITY OF MIAMI BEACH, FLORIDA, a municipal corporation Sign Name: Print Name: Sign Name: Print Name: By: Mayor ATTEST: Robert Parcher, City Clerk 7 7 I, " STATE OF FLORIDA ) )SS: ) . COUNTY OF DADE - '., ~ -- ,. ,- The foregoing instrument was acknowledged before me this day of , 1998, by , as Mayor of the City of Miami Beach, a municipal corporation, on behalf of the Corporation_ He is personally known to me or has produced as identification and who did (did not) take an oath. NOTARY PUBLIC Typed or Printed Name of Notary My Commission expires: Serial No., if any: MlAMIIHERNANDEZJJ9"'71761k@".sO"DOC'51%0I98 8 1 CITY OF MIAMI BEACH ~ Planning, Design and Historic Preservation~ Interoffice Memorandum To: Gary Kokorian Date: June 5, 1998 From: Civil Engineer II Dean Grand'~ Planning an~ector Subject: Analysis of Pending Application for Vacation of a Portion of the Lincoln Road Right- of-Way Pursuant to the DiLido Development Agreement (Ordinance 92-2783) Pursuant to your request, this memorandum serves to provide an analysis of the vacation of a portion of the Lincoln Road Right-of-Way. Ordinance 92-2783 of the City of Miami Beach requires that any proposed sale of city-owned land, including the vacation of a right-of-way, be analyzed from a planning perspective in order that the City Commission and the public are fully apprised of all conditions relating to the proposed vacation of the right-of-way. What follows, herein, are each of the eight criteria prescribed in said ordinance and a response to each: 1. Whether or not the proposed use is in keeping with City goals and objectives and conforms to the City Comprehensive Plan. The proposed vacation and abandonment of the north-half of the Lincoln road right-of-way in favor of the adjoining DiLido property is subject to the granting by the DiLido Beach Corp. to the City an access easement on Lincoln Road. Thus, the granting of the easement ensures the continued public use of the former right-of-way and does not contravene the goals and objectives of the Comprehensive Plan. 2. The impact on adjacent property, including the potential positive or negative impacts such as diminution of open space, increased traffic, noise level or enhanced property values, improved development patterns and provision of necessary services. Based on the proposed use of the property, the City shall determine the potential impact ofthe project on City utilities and other infrastructure needs and the magnitude of costs associated with needed infrastructure improvements. Should it become apparent that further evaluation of traffic impact is needed, the proponent shall be responsible for obtaining a traffic impact analysis from a reputable traffic engineer. The vacation of the right-of-way and subsequent granting of the City easement will not diminish any open space. The proposed improvements to the City easement should have a positive effect, in terms of property value, to the surrounding area. 3. A determination as to whether or not the proposed use is in keeping with a public purpose and community needs, such as expanding the City's revenue base, reducing City costs, creating jobs, creating a significant revenue stream and improving the community's overall quality oflife. The proposed vacation of the Lincoln Road right-of-way is part of the DiLido Development agreement. The improvements in the vacated right-of-way, in addition to the permanent pedestrian easement at the eastern end of Lincoln Road through the DiLido property for access by the public to the beach, is in keeping with a public purpose and community needs. 4. Determination as to whether or not the development is in keeping with the surrounding neighborhood, will block views, or create other environmental intrusions, and evaluation of the design and aesthetic considerations ofthe project. The only development of the vacated right-of-way involves landscape and circulation improvements. The existing views of the Lincoln Road street end are not affected. Indeed, the proposed improvements, in addition to the creation of a pedestrian easement at the end of Lincoln Road, extend the view corridor to the dune and beach area. 5. The impact on adjacent properties, whether or not there is adequate parking, street, and infrastructure needs. The use of the vacated right-of-way as a City easement will not have an impact on parking nor will it affect the city's infrastructure. 6. A determination as to whether or not alternatives are available for the proposed disposition, including assembly of adjacent properties, and whether the project could be accomplished under a private-ownership assembly. There are no other viable alternatives for the right-of-way. The proposed easement back to the City ensures that the public access to the area remains. 7. Within the constraints of public objectives, the department should examine financial issues such as job generation, providing housing opportunities, and the return to the City for its disposition of property. The proposed vacation of the right-of-way will help effectuate the development agreement which will include the improvements to Lincoln Road and the renovation of the adjoining DiLido property as a high quality hotel facility. This will create temporary jobs during the construction phase and permanent jobs in the hotel service industry. As part of the development agreement the DiLido Beach Corporation will expend $500,000 for the improvements to Lincoln Road. This represents a substantial savings to the City. 8. Such other items as the Planning Department may deem appropriate in analysis of the proposed disposition. Planning Staff has determined that the reconstruction and redevelopment of the DiLido property and the improvements to Lincoln Road and the creation of a permanent pedestrian , , beach access will have direct benefits to the City. The improvements will rehabilitate a major intersection in the City. The improvements to the Lincoln Road easement will preserve the architectural scale of the existing structures. The proposed vacation and subsequent improvements is consistent with the City's ongoing redevelopment of the area and will positively influence the character of the future development in the surrounding area. DJG/JGG cc: 1. Gavarrete F:\PLAN\SALL\CC_MEMOS\DILIDO.SHP !Io iJ tI I ~ Ii j I I f , l , ., I , , ,~ . , . ,'- \ ,.....,.'-',.~ ':.,'y' ',- CITY OF MIAMI BEACH "" NOTICEOFPUBUCIfEAJuNG ~. TO CONSIDERVACATJON OF ROADWAY _ NOTICE IS HEREBBY GIVEN that the City COmmission of the City of Miami Beach will conduct a public heanng on Wednesday, June 17, 1998 at 11:00 A.M. , or as Soon thereafter as Possible, in the City COmmission Chambers, Third Floor, City Hall, 1700 Convention Center Drive. Miami Beach, Florida, to review an application filed by Di Lido Beach Hotel Corporation requesting tlie vacation and abandonment of a ponion of Uncoln Road lying east of Collins Avenue within the City of Miami Beach, Florida. Inquiries concerning this item should be directed to the Office of the City Cleric, (305) 673-741I. Copies of this application are available for inspection during normal bUsiness hours in the Office of the Department of Public Works, City Hall, 1700 Convention Center Drive, Miami Beach, Florida. All persons are invited to appear at this meeting or be represented by an agent, or to express their views in Writing addressed to the City of Miami Beach City COmmission c/o the City Cleric, 1700 Convention Center Drive, First Floor, City Hall, Miami Beach, Florida 33139. Pursuant to Section 286.0105, Fla Stat., the City hereby advises the public that; if a person decides to appeal any decision made by the City COmmission with respect to any matter considered at this meeting or hearing, such person must insure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Ibis notice does not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In aCcordance with the Americans with Disabilities Act of 1990, persons needing special accommodation to participate in this proceeding should contact the Ci!y Clerk's Office no later than four Clays prior to the proceeding, teleplione (305) 673-741I for assistance; J . if hearing impaired, teleplione the florida Relay Service numbers (BOO) 955-Bnl (T.I?D) or (800) 955-Bno (VOICE), (or assistance. -.-.--.-...--- ---..------------ .. .. . " ~ITY OF MIAMI BEACH ~ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 COMMISSION MEMORANDUM NO. 39g-9g TO: Mayor Neisen O. Kasdin and Members of the City Co mission DATE: June 17, 1998 FROM: Sergio Rodriguez City Manager , SUBJECT: A RESOL I OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE VACATION OF THE NORTH PORTION OF LINCOLN ROAD, EAST OF COLLINS AVENUE, IN FAVOR OF DI LIDO BEACH HOTEL CORPORATION, IN EXCHANGE FOR A LINCOLN ROAD ACCESS EASEMENT, TO BE GRANTED TO THE CITY BY DI LIDO BEACH HOTEL CORPORATION " FOR PUBLIC PEDESTRIAN AND VEHICULAR TRAFFIC, ON, ACROSS, AND PTHROUGH THE PROPOSED VACATED PROPERTY; A PERMANENT PEDESTRIAN EASEMENT FOR ACCESS BY THE PUBLIC FROM THAT CERTAIN PORTION OF LINCOLN ROAD LYING EAST OF THE EASTERN RIGHT-OF-WAY LINE OF COLLINS AVENUE, THROUGH THE DI LIDO PROPERTY, TO THE BEACH; AS WELL AS CERTAIN LINCOLN ROAD IMPROVEMENTS, TO BE PROVIDED PURSUANT TO THE PROVISIONS OF THAT CERTAIN DEVELOPMENT AGREEMENT BETWEEN THE CITY AND DI LIDO BEACH HOTEL CORPORATION; PROVIDING THAT SAID VACATION SHALL BE EFFECTIVE AT THE TIME OF THE "SECOND CLOSING," AS SAME IS DEFINED IN THE DEVELOPMENT AGREEMENT; WAIVING THE REQUIREMENTS OF APPRAISALS AND COMPETITIVE BIDS IN CONNECTION WITH THE APPROVAL OF SAID VACATION; AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE ALL DOCUMENTS NECESSARY TO EFFECTUATE SAID VACATION. ADMINISTRATION RECOMMENDATION: Adopt the Resolution. BACKGROUND: On July 26, 1989, the Land Use and Development Committee set the guidelines/criteria for considering right-of-way and easement vacation requests, and recommended a case-by-case consideration of these applications. Additionally, in June 1992, the City Commission adopted Ordinance No, 92-2783 governing the sale and/or lease of City property, As set forth in the above criteria and requirements for vacation and conveyances of City property, and as contemplated in the Development Agreement approved by AGENDA ITEM t2-. 1 r3 DATE f> -II-Cf~ " the City Commission on May 20, 1998, pursuant to Resolution No. 98-2275, Di Lido Beach Hotel Corporation (Di Lido) has submitted a request that the City vacate the north half of Lincoln Road, east of Collins Avenue, in exchange for, among other things, a Lincoln Road Access Easement from Di Lido to the City, for public pedestrian and vehicular traffic through the proposed vacated property (the Lincoln Road Access Easement); a permanent, continuous pedestrian easement for access by the public from the Lincoln Road Access Easement area, through the Di Lido Property, to the beach (the Di Lido Easement); as well as certain Lincoln Road Improvements, to be provided by Di Lido pursuant to the provisions of the Development Agreement. ANAL YSIS: Pursuant to the requirements for vacation of City-owned property, as well as the requirement of Ordinance No. 92-2783, on June 3, 1998, the City Commission scheduled a public hearing to consider the proposed vacation request, to be held during the June 17, 1998, Commission meeting. Additionally, as required by Ordinance No. 92-2783, the City's Planning Department has prepared the attached analysis with regard to the proposed vacation. The City, in exchange for vacating the north half:'-of Lincoln Road, east of the Collins Avenue right-of-way, will obtain (among other things) from Di Lido, the adjacent property owner (1669 Collins Avenue), a permanent pedestrian public access easement to the beach (the Di Lido Easement); certain Lincoln Road Improvements, east of Collins A venue; and permanent easement rights over the proposed vacated City right-of-way (the Lincoln Road Access Easement). Ordinance No. 92-2783 also requires an advertised public bidding process for the sale or lease of City property, and an appraisal of the fair market value of the property. Since, by operation oflaw, upon vacation of a right-of-way the property vests in the adjoining property owner, the right-of-way cannot be sold or leased to a third party. (See Smith v. Horn, 1915,70 So.2d 435; Attorney General Opinion 078-118.) The Administration would herein recommend that it is in the best interest of the City to waive these requirements; pursuant to the Ordinance, a 5/7ths vote is needed to waive these requirements. Additionally, the Administration would recommend that the aforestated vacation be effective at the time of the "Second Closing," and only if the Second Closing occurs, as same is defined in the Development Agreement. Should the Development Agreement expire or terminate as more particularly provided therein, then the vacation shall be null and void and of no further force or effect. Accordingly, the Second Closing, as contemplated in the Development Agreement, should be a condition precedent to the vacation of the requested portion of Lincoln Road. CONCLUSION: The Administration recommends that the Mayor and City Commission approve the vacation of the north portion of Lincoln Road, east of Collins Avenue, in favor of Di Lido, in exchange for a Lincoln Road Access Easement, to be granted to the City by Di Lido for public pedestrian and vehicular traffic, on, across, and through the proposed vacated property; a permanent pedestrian 2 . ,\ 'c' "''11. ~[:186' l~4m Prepared by and Return to: 99R259086 1999 nAY 19 10:~O Raul J. Aguila, Esq. Office of City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 DOCSTPDEE 0.60 SURTX O.~5 HARVEY RUVIN, CLERK DADE COUNTY, FL GRANT OF PERPETUAL EASEMENT FOR BEACHW ALK THIS GRANT OF EASEMENT (this "Easement") is made thisSffI day of LJU/~ 1998, by DI LIDO BEACH HOTEL CORPORATION, a Florida corporation (th~) having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida. WHEREAS, the Owner owns that certain property situated, lying and being in Dade County, Florida, known as the Di Lido Beach Hotel located at 155 Lincoln Road, Miami Beach, Florida, and as more particularly described in Schedule "A" attached hereto (the "Property"); WHEREAS, on or about March 13, 1982, the City entered into that certain Management Agreement for Certain Lands in the City of Miami Beach, Florida (Agreement No. 750-0006), as amended, with the Trustees of the Internal Improvement Trust Fund of the State of Florida, granting the City the right to exercise management authority over the State owned beach east of the Erosion Control Line within the City of Miami Beach, including that certain area landward and seaward of the dune; WHEREAS, the City is desirous of developing an at-grade public pedestrian walkway, which includes landscaping, lighting, and irrigation, along the landward side of the dune, connecting the existing walkway fronting Lummus Park and the existing elevated wooden boardwalk which currently begins at 21st Street (the "Beachwalk"); and WHEREAS, pursuant to the terms of that certain Agreement g.ate9,.as of j' uM,t.r\\... 1998 between the City and the Owner, recorded in Official Records Book l ~\b~ , at Page ~, of the Public Records of Miami-Dade County (the "Development Agreement"), which constitutes a development agreement under the Florida Local Government Development Agreement Act, the Owner has agreed to grant this perpetual easement to the City for use as an at-grade public pedestrian walkway, for the installation and maintenance of landscaping, and for such other public uses which are consistent with the City's development of the Beachwalk, across that certain portion of the Property, approximately fifteen (15) feet in width, running along the dune ". ~g: 18613fl4278 line near the eastern boundary of the Property, as same is more particularly described in Schedule "B" attached hereto (the "Easement Parcel"). NOW THEREFORE, in consideration of Ten and No/lOO Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Owner by these presents hereby grants, sells, and conveys to the City, its successors and assigns, a perpetual easement on, in, and over the Easement Parcel for the purpose of installing, laying, constructing, operating, inspecting, maintaining, repairing, and replacing the Beachwalk and for public pedestrian access to the Beachwalk. The Owner and the City further agree to the following: 1. The Owner hereby grants to the City its employees, contractors, or representatives, the permanent right and license for purposes of ingress and egress to and from the Easement Parcel for the purposes of laying, constructing, operating, inspecting, maintaining, repairing, and replacing the Beachwalk. 2. The City shall use its best efforts to obtain the necessary permits and approvals from the State of Florida for construction of the Beachwalk; provided, however, that in the event that the City has not secured the necessary permits and approvals and initiated construction of the Beachwalk within the later of (i) three (3) years from the date of execution of this instrument, or (ii) the expiration of the term of the Development Agreement, this Easement and the easement rights granted herein shall automatically terminate. 3. The City shall construct the Beachwalk in substantial conformity with the Beachwalk Site Plan attached hereto as Schedule "C". 4. The City shall deliver notice of its intention to commence construction of the Beachwalk to the Owner not later than thirty (30) days prior to the date set for such commencement. 5. Following the completion of the Beachwalk, the City shall have the sole responsibility and shall bear the total cost for the repair and maintenance of the Beachwalk, except for any repairs or maintenance arising from the negligence of the Owner or any successor thereto. 6. The City shall maintain and repair the Easement Parcel and the portion of the Beachwalk lying thereon in the same manner as it maintains and repairs the remainder of the Beachwalk. The City shall insure and provide security for the Beachwalk in the same manner as it provides security for its public sidewalks and right-of-ways. 7. The Owner reserves unto itself, its successors and assigns, the perpetual right and privilege of: 2 ~[: 1861 ~279 a. Right of ingress and egress to and from the Easement Parcel for construction access to the east side of the Property, provided that the Owner has obtained all the necessary permits and approvals from the City and the State for any such construction, and that Owner shall bear the cost for repairing any damage to the Easement Parcel or Beachwalk, resulting from such construction; and b. Unrestricted access to, over, across and in the Easement Parcel, provided that such use does not materially interfere with the continued use of the Easement Parcel as permitted herein. 8. Owner shall not construct or permit to be constructed any structure or obstruction on or over or interfering with the construction, maintenance, or any other aspect of the Beachwalk located upon the Easement Parcel. The City shall not obstruct access to the beach and the Atlantic Ocean from the Property across the Easement Parcel. 9. Owner covenants, warrants and represents (i) that it is the fee simple owner of the Easement Parcel and has the right, title, and capacity to grant the perpetual easement granted herein, and (ii) Commercial Bank of Florida is the sole lienor and holder of a recorded (or unrecorded) security interest in the Easement Parcel. 10. This grant of perpetual easement shall inure to the benefit of and be binding upon the heirs, legal representatives, successors and assigns of the parties hereto, as applicable. 11. In the event that the City abandons or vacates the Beachwalk, then this Easement and the easement rights granted herein shall automatically terminate. 12. Notices. Any notices required or permitted to be given under this Easement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the City at: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager, City Attorney 3 '. . frt:1861 Jl4ZOO If to Owner at: c/o Bruce Lazar, Esq. Seville Beach Hotel, Suite M 2901 Collins Avenue Miami Beach, FL 33140 (if not in leave with concierge) With a copy to: Juan P. Loumiet, Esq. Greenberg, Traurig, Hoffman, Rosen & Quentel P .A. 1221 Brickell Avenue Miami, Florida 33131 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. The terms of this Section shall survive the termination ofthis Easement. 13. Construction. (a) This Easement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Easement shall not be more strictly construed against anyone of the parties hereto. (b) In construing this Easement, the use of any gender shall include every other and all genders, and captions and section and paragraph headings shall be disregarded. (c) All of the exhibits attached to this Easement are incorporated in, and made a part of, this Agreement. 14. Severability. In the event any term or provision of this Easement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or construed as deleted as such authority determines, and the remainder of this Easement shall be construed to be in full force and effect. 15. Litigation. In the event of any litigation between the parties under this Easement for a breach hereof, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The terms of this Section shall survive the termination of this Easement. 16. Time of Essence. Time shall be of the essence for each and every provision hereof. 17. Entire Agreement. This Easement, together with the documents referenced herein, constitute the entire agreement and understanding among the parties with 4 08/05/98 15:20 GREENBERG TRAURIG ~ 912125814950 NO. 376 002 un: 1861114 281 respect to the subject matter hereof, and there are no other agreements, representations or warranties other than as set forth herein. This Easement may Dot be changed, altered or modified except by an instnune1lt in writing signed by the party against whom enforcement of such change would be sought. 18. Force Maieure. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God. inability to obtain labor or materials or reasonable substitutes therefor. riot, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perfOJIIl, excluding the financial inability of such party to perform sball excuse the performance by such party for a period equal to any such period of prevention, delay or stoppage, IN WITNESS WHEREOF, the \U1dersigned has caused this gr8Jtt of p~tual easement to be executed by execution of this instrument as of this ~ day of~, 1998. Witnesses: THE OWNER Sign Name Print Name: I EACH HOTEL CORPORA nON, corporation Sign Name: Print Name: 5 AUG 05 '98 15:35 305 579 0717 PAGE. 02 ~n: 16613fL428Z CONSENT The undersigned as lienor, owner and holder of those certain mortgages recorded in Official Records Book 16040, Page 5111, Official Records Book 17029, Page 1037, Official Record Book 17508, Page 4661, Official Record Book 17528, Page 912 and Official Record Book 17801, Page 3070, all in the Public Records of Miami-Dade County, Florida (as any of same may have been heretofore modified), hereby consents to this grant of easement rights as provided herein and subordinates the lien and the effect of its security interest to this Easement. Sign Name: )f~L ;;t(.d...b~ Print Name:Geraldine Kitchell Sign Name: /~ Print Name: ;Pamela J. u er ( ST ATE OF FLORIDA By: Name: Title: COMMERCIAL BANK OF FLORIDA, a Florida banki corporation ( Bruce P. Steinberg Executive Vice President COUNTY OF DADE ) ) SS: ) The foregoing instrument was acknowledged before me this ~ day of July , 1998 byBruce P. Steinberger , asExec. V.P. of Commercial Bank of Florida, a Florida banking corporation, on behalf of the corporation. He/She is personally known to me or has produced as identification and who did (did not) take an oath. ~~ ,!40TARY PUBLIC. Y://1n?~ J. n &ce/2..- Typed or Printed Name of Notary My Commission expires: Serial No., if any: 6 " . STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) m: 18613fG4 283 OfFltIAL NorARY sEAL JOSEPH M HERNANDEZ ARY pUBLIC STATE OF FLORIDA COMMISSION NO. CC610440 MY COMMISSION EXP. DEe. 29 000 ACKNOWLEDGED AND ACCEPTED this by: Witnesses: Typed or Printed Name of Notary My Commission expires: Serial No., if any: 11 / g day of A~-I- , 1998 CITY OF MIAMI BEACH, FLORIDA, a municipal corporation By: !l11I Mayor 7 'r rr~: 18613fr4284 STATE OF FLORIDA ) )SS: ) COUNTY OF DADE foregoing,' instrument was acknowledged before me this 1"9 fA day of , 1998, by YJ p ; s e ~ () ka.f dr :.u , as Mayor of the City of Mi Beach, a municipal corporation, on behalf of the Corporation. . He is personally known to ~or has produeect as identification and who did ~id not) take an oath. ~ . 13 OFFICIAL NOTARY SEAL !L.A...) J 1J Cl.l..Ll' ~ 4.. .bM Ii:) LILLIAN BEAUCHAMP NO ARYPUBLIC' ~ NOTARY PUBLIC STATE OF FLORIDA / 7) . / COMMISSION NO. CC738372 A..i II{ 'qrJ J::::x?O( )e.ht1~ MY COMMISSION EXP. ArK. 29,2002 Typed or Printed Name of Notary My Commission expires: . ~erial NQ, if any: ;:1/:;),-1/ Vj, 2-00'2.-- MIAMI!HERNANDEZJ/946505/k@bt05!.DOC/5/27/98 8 . II .rrri 8613fG4 Z85 SCBEDULE"A" DI LIDO PROPERTY PARCEL 1: Lots 18, 19 and 20 in Block 29, of FISHER'S FIRST SUBDMSION OF ALTON BEACH, a Subdivision of MIAMI-DADE, Florida, according to the Plat thereof; as recorded in Plat book 2, at Page 77, of the Public Records of MIAMI-DADE County, Florida. ALSO PARCEL 2: All of Lots 1, 2, 3, 4, 17 and the South Half (SI/2) of Lots 5 and 16, in Block 29, 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 MIAMI-DADE County, Florida, ALSO; Beginning (P.O.B.) at the Northeast comer of the South Half (Sl/2) of Lot 5 in Block 29 as the same is shown and designated upon the Plat Florida; thence ron in an Easterly direction along the North Line of said South Half (S 1/2) of Lot 5 in Block 29 produced to the Erosion Control Line of the Atlantic Ocean, said line recorded in Plat Book 105, at Page 62, of the Public Records of MIAMI-DADE County, Florida; thence ron in a Southerly direction along the Erosion Control Line a distance of 280 .059 feet to a point, said point being the intersection of the Erosion Control Line and the Centerline of Lincoln Road, as said Road is shown on the above mentioned Plat, produced Easterly; thence ron in a Westerly direction along the Centerline of Lincoln Road produced Easterly to an intersection with the Easterly Line of Block 29 produced Southerly; thence ron in a Northerly direction along the Easterly line of said Block 29 and its production Southerly, a distance of278.878 to the Point of Beginning (p.OR). 1lt!: 180' lG428S SCHEDULE" B " DESCRIPTION OF THE BEACHW ALK "EASEMENT PARCEL" That portion of land bounded as follows: On the North, bounded by the Easterly extension of the North line of the South half (S. 1/2) of Lot 5, Block 29, as shown in FISHER'S FIRST SUBDIVISION OF ALTON BEACH, recorded in Plat Book 2, at Page 77, Public Records of Miami-Dade County, Florida. On the South, bounded by the Easterly extension of the center line of Lincoln Road, as shown in said FISHER'S FIRST SUBDMSION OF ALTON BEACH. On the East, bounded by the Erosion Control Line of the Atlantic Ocean, said line recorded in Plat Book 105, at Page 62, Public Records of Miami-Dade County, Florida And on the West, bounded by a line 15.00 feet West (measured at right angle), and parallel to the above mentioned Erosion Control Line of the Atlantic Ocean. Said lands located, lying and being in the City of Miami Beach, Miami-DadeCounty, Florida and containing 4192 square feet more or less. f:work:vgk:survey:dil ido:jv . I:^Mltjll ~ /. i. I ..- '!~ I .~ , , , , I " I '-I . I , . f --i " l, r"'!" '"-... -: " ." . .~ '. ;;I !: ". ~ . :. :~ '. ~~~~:=.... -...-.. .4\ .......;- "'4.1\1. _ 'j (.. .' ~ '-.~ 0" - q .. , ! . i:\ - ~; ", '" .;;: ~ sa : :! ~ c: .; 0" '" I., - - I' -; . I I : ;or:' ;:~ ':: .1 .. ;L .i . }" .: .t: !<\ ~ J:. ~ '.' Rn: , 8613tr4281 RECORDE& IN OI'FICIAL ReCoRDS BOtlo; OF DA.DE COU^lTY. f;LORfDA - RECo.RO VERi1-'-fED li/lnVi"( RIJVIN C!...b~~{ Cq~:";tftj. ~,~~t (/' e; 'f"h~ \ ~ ~ ! Prepared by and Return to: 99R259086 1999 MAY 19 10:~O Raul J. Aguila, Esq. Office of City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 DOCSTPDEE 0.60 SURTX 0.45 HARVEY RUVIN, CLERK DADE COUNTY, FL GRANT OF PERPETUAL EASEMENT FOR BEACHW ALK THIS GRANT OF EASEMENT (this "Easement") is made thiSSfYt day of LfJA.ll~ 1998, by DI LIDO BEACH HOTEL CORPORATION, a Florida corporation (th~) having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida. WHEREAS, the Owner owns that certain property situated, lying and being in Dade County, Florida, known as the Di Lido Beach Hotel located at 155 Lincoln Road, Miami Beach, Florida, and as more particularly described in Schedule "A" attached hereto (the "Property"); WHEREAS, on or about March 13,1982, the City entered into that certain Management Agreement for Certain Lands in the City of Miami Beach, Florida (Agreement No. 750-0006), as amended, with the Trustees of the Internal Improvement Trust Fund of the State of Florida, granting the City the right to exercise management authority over the State owned beach east of the Erosion Control Line within the City of Miami Beach, including that certain area landward and seaward of the dune; WHEREAS, the City is desirous of developing an at-grade public pedestrian walkway, which includes landscaping, lighting, and irrigation, along the landward side of the dune, connecting the existing walkway fronting Lummus Park and the existing elevated wooden boardwalk which currently begins at 21st Street (the "Beachwalk"); and WHEREAS, pursuant to the terms of that certain Agreement g,ate9.-as ofS ~\\...1998 between the City and the Owner, recorded in Official Records Book l ~\6~ , at Page ~, of the Public Records of Miami-Dade County (the "Development Agreement"), which constitutes a development agreement under the Florida Local Government Development Agreement Act, the Owner has agreed to grant this perpetual easement to the City for use as an at-grade public pedestrian walkway, for the installation and maintenance of landscaping, and for such other public uses which are consistent with the City's development of the Beachwalk, across that certain portion of the Property, approximately fifteen (15) feet in width, running alon .....___. r L '&., ,E", .... _ ' ,..~. ~ " -...C@:. :::;,/ '.;:J3 ~f 'i~}-l _\ ~~ . Co? c.)\,,. ~~l,"", A '" ~00W<< "'i~.'" .:-..~ "q .......~. ..,,~' "'eCaun\'l'"< line near the eastern boundary of the Property, as same is more particularly described in Schedule "B" attached hereto (the "Easement Parcel"). NOW THEREFORE, in consideration of Ten and No/lOO Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Owner by these presents hereby grants, sells, and conveys to the City, its successors and assigns, a perpetual easement on, in, and over the Easement Parcel for the purpose of installing, laying, constructing, operating, inspecting, maintaining, repairing, and replacing the Beachwalk and for public pedestrian access to the Beachwalk. The Owner and the City further agree to the following: 1. The Owner hereby grants to the City its employees, contractors, or representatives, the permanent right and license for purposes of ingress and egress to and from the Easement Parcel for the purposes of laying, constructing, operating, inspecting, maintaining, repairing, and replacing the Beachwalk. 2. The City shall use its best efforts to obtain the necessary permits and approvals from the State of Florida for construction of the Beachwalk; provided, however, that in the event that the City has not secured the necessary permits and approvals and initiated construction of the Beachwalk within the later of (i) three (3) years from the date of execution of this instrument, or (ii) the expiration of the term of the Development Agreement, this Easement and the easement rights granted herein shall automatically terminate. 3. The City shall construct the Beachwalk in substantial conformity with the Beachwalk Site Plan attached hereto as Schedule "C". 4. The City shall deliver notice of its intention to commence construction of the Beachwalk to the Owner not later than thirty (30) days prior to the date set for such commencement. 5. Following the completion of the Beachwalk, the City shall have the sole responsibility and shall bear the total cost for the repair and maintenance of the Beachwalk, except for any repairs or maintenance arising from the negligence of the Owner or any successor thereto. 6. The City shall maintain and repair the Easement Parcel and the portion of the Beachwalk lying thereon in the same manner as it maintains and repairs the remainder of the Beachwalk. The City shall insure and provide security for the Beachwalk in the same manner as it provides security for its public sidewalks and right-of-ways. 7. 2 a. Right of ingress and egress to and from the Easement Parcel for construction access to the east side of the Property, provided that the Owner has obtained all the necessary permits and approvals from the City and the State for any such construction, and that Owner shall bear the cost for repairing any damage to the Easement Parcel or Beachwalk, resulting from such construction; and b. Unrestricted access to, over, across and in the Easement Parcel, provided that such use does not materially interfere with the continued use of the Easement Parcel as permitted herein. 8. Owner shall not construct or permit to be constructed any structure or obstruction on or over or interfering with the construction, maintenance, or any other aspect of the Beachwalk located upon the Easement Parcel. The City shall not obstruct access to the beach and the Atlantic Ocean from the Property across the Easement Parcel. 9. Owner covenants, warrants and represents (i) that it is the fee simple owner of the Easement Parcel and has the right, title, and capacity to grant the perpetual easement granted herein, and (ii) Commercial Bank of Florida is the sole lienor and holder of a recorded (or unrecorded) security interest in the Easement Parcel. 10. This grant of perpetual easement shall inure to the benefit of and be binding upon the heirs, legal representatives, successors and assigns of the parties hereto, as applicable. 11. In the event that the City abandons or vacates the Beachwalk, then this Easement and the easement rights granted herein shall automatically terminate. 12. Notices. Any notices required or permitted to be given under this Easement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the City at: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager, City Attorney 3 If to Owner at: c/o Bruce Lazar, Esq. Seville Beach Hotel, Suite M 2901 Collins Avenue Miami Beach, FL 33140 (if not in leave with concierge) With a copy to: Juan P. Loumiet, Esq. Greenberg, Traurig, Hoffman, Rosen & Quentel P.A. 1221 Brickell Avenue Miami, Florida 33131 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. The terms of this Section shall survive the termination of this Easement. 13. Construction. (a) This Easement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fuUy in the negotiation and preparation hereof; and, accordingly, this Easement shall not be more strictly construed against anyone of the parties hereto. (b) In construing this Easement, the use of any gender shall include every other and all genders, and captions and section and paragraph headings shall be disregarded. (c) All of the exhibits attached to this Easement are incorporated in, and made a part of, this Agreement. 14. Severability. In the event any term or provision of this Easement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or construed as deleted as such authority determines, and the remainder of this Easement shall be construed to be in full force and effect. 15. Litigation. In the event of any litigation between the parties under this Easement for a breach hereof, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The terms of this Section shall survive the termination of this Easement. 16. Time of Essence. Time shall be of the essence for each and every provision hereof. 17. 4 08/05/98 15:20 GREENBERG TRAURIG ~ 912125814950 NO. 376 002 respect to the subject matter hereof, and there are no other agreements, representations or warranties other than as set forth herein. This Easement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. 18. Force Maieure. Any prevention, delay or stoppage due to strikes. loc:kouts. labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, riot, civil commotion, fire or other casualty, aDd other causes beyond the reasonable control of the party obligated to perform. exclucting the financial inability of such party to perform sball excuse the performance by such party for a period equal to any such period of prevention, delay OT stoppage. IN Wl1NESS WHEREOF, the undersigned has caused this gr~~~tual easement to be executed by execution of this instnunent as of this ~ day of 1998. Witnesses: THE OWNER Sign Name: Print Name: ... D1 Llp6:BEACH HOTEL CORPORATION, a Florl<ia corporation Sign Name Print Name: 5 AUG 05 '98 15:35 305 579 0717 PQr';F ~? CONSENT The undersigned as lienor, owner and holder of those certain mortgages recorded in Official Records Book 16040, Page Sill, Official Records Book 17029, Page 1037, Official Record Book 17508, Page 4661, Official Record Book 17528, Page 912 and Official Record Book 17801, Page 3070, all in the Public Records of Miami-Dade County, Florida (as any of same may have been heretofore modified), hereby consents to this grant of easement rights as provided herein and subordinates the lien and the effect of its security interest to this Easement. Sign Name: )l-<.J;JI~ ~~-'r~ Print Name:Geraldine Kitchell Sign Name: /~~~ Print Name: ;Pamela J. u er ( STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) By: Name: Title: COMMERCIAL BANK OF FLORIDA, a Florida bank' corporation ( Bruce P. Steinberg Executive Vice President The foregoing instrument was acknowledged before me this ~ day of Julv , 1998 by Bruce P. Steinberger , as Exec. V. P. of Commercial Bank of Florida, a Florida banking corporation, on behalf of the corporation. He/She is personally known to me or has produced as identification and who did (didnot)tak,anoath. .~. ~ ,NOTARY PUBLIC , Y /Jn7ec..p J. /{; &cP/2- Typed or Printed Name of Notary My Commission expires: Serial No., if any: 6 STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) ~OregOing inst~t was acknowledged before , 1998 by rL L4~ , as lI/; Hotel orporatlOn, a Flonda corporatlOn, on be 0 the corporation known to me take an oath. omOAL NGrARYSEAL JOSEPH M HERNANDEZ /t3.Y P\JBUC STATE OF FLORIDA COMMISSION NO. CC610440 MY COMMISSION EXP. DEe. 29.2000 ACKNOWLEDGED AND ACCEPTED this by: Witnesses: AT Typed or Printed Name of Notary My Commission expires: Serial No., if any: / g;fLday of Au~.J- , 1998 CITY OF MIAMI BEACH, FLORIDA, a municipal corporation 1/111 Mayor By: 7 8T A TE OF FLORIDA ) )88: COUNTY OF DADE ) fA foregoing instrument was ackpowledged before .me this I "l day of , 1998, by YJ fJ I S €'-kJ (J. kOl ('"If A..J , as Mayor of the City of Mi Beach, a municipal corporation, on behalf of the Corporation. He is personally known to ~or bas preaeeecr as identification and who did (did not) take an oath. ~ h OFFICIAL NafARYSEAL :-<. d--",( ;/- '? fJ CLt..J~1'~ ULLIAN BEAUCHAMP 0 ARY POOLI NafARY PUBUC STATE OF FLORIDA / 7> I COMMISSION NO. CC7JS3i2 /-....i Ilf ';')rJ .t::x?Or )(!htf~ MYCOMMI5810~~ EXP. APK 29.2CJ02 Typed or Printed Name of Notary My Commission expires: Serial N g , if !mY: rJ,t:1,-' / 21, 2--0 () '2.-- MIAMIIHERNANDEZJI946S0S/k@bIOS!.DOC/SI27198 STATE OF FLORIDA; COUNiY OF DADE ., t COP~1~ 0' the I HEREBY CEIfII'Y tho I thIS · 0 rue '9 &!SL doy 0' ....'9'no' filed in !his ollleo on / tJ t7 fi?~ ' A.D. 19 nd a d Official Seal. K 0 're!)U and Counfy Court' , D.C. 8 . ' SCHEDm:F."A" DI LIDO PROPERTY PARCEL 1: Lots 18, 19 and 20 in Block 29, of FISHER'S FIRST SUBDMSION OF ALTON BEACH, a Subdivision of MIAMI-DADE, Florida, according to the Plat thereof: as recorded in Plat book 2, at Page 77, of the Public Records of MIAMI-DADE County, Florida. ALSO PARCEL 2: All of Lots 1, 2, 3, 4, 17 and the South Half (S1/2) of Lots 5 and 16, in Block 29, 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 MIAMI-DADE County, Florida, ALSO; Beginning (P.O.B.) at the Northeast comer of the South Half (S1I2) of Lot 5 in Block 29 as the same is shown and designated upon the Plat Florida; thence run in an Easterly direction along the North Line of said South Half (S 1/2) of Lot 5 in Block 29 produced to the Erosion Control Line of the Atlantic Ocean, said line recorded in Plat Book 105, at Page 62, of the Public Records of MIAMI-DADE County, Florida; thence run in a Southerly direction along the Erosion Control Line a distance of280.059 fuet to a point, said point being the intersection of the Erosion Control Line and the Centerline of Lincoln Road, as said Road is shown on the above mentioned Plat, produced Easterly; thence run in a Westerly direction along the Centerline of Lincoln Road produced Easterly to an intersection with the Easterly Line of Block 29 produced Southerly; thence run in a Northerly direction along the Easterly line of said Block 29 and its production Southerly, a distance of278.878 to the Point of Beginning (p.OB.). \ I' . SCHEDULE" B " DESCRIPTION OF THE BEACHWALK "EASEMENT PARCEL" That portion of land bounded as follows: On'the North, bounded by the Easterly extension of the North line of the South half (S.II2) of Lot 5, Block 29, as shown in FISHER'S FIRST SUBDIVISION OF ALTON BEACH, recorded in Plat Book 2, at Page 77, Public Records of Miami-Dade County, Florida. On the South, bounded by the Easterly extension of the center line of Lincoln Road, as shown in said FISHER'S FIRST SUBDIVISION OF ALTON BEACH. On the East, bounded by the Erosion Control Line of the Atlantic Ocean, said line recorded in Plat Book 105, at Page 62, Public Records of Miami-Dade County, Florida. And on the West, bounded by a line 15.00 feet West (measured at right angle), and parallel to the above mentioned Erosion Control Line of the Atlantic Ocean. Said lands located, lying and being in the City of Miami Beach, Miami-DadeCounty, Florida and containing 4192 square feet more or less. f:worlc:vgk:survey:dilido:jv 'l '- '7";;-.... ...r" ......_ ..,:", ....... - " "-.. =- ....l;... - "\ I ......-....J } . .. \f\ ;,1l ~ '" I' . ~O~SOA A8..o1.~. -- T. L /". 'i' ." ... I I " ..., 1 ; I Ii .. , ! . iii . i.; '" .;;; !i : ;i -' - I' -; . I I : . . ;00:' ," '" s,' Ii .: .. " J .. ;L ;-: "1 .. .: .": " . . . i I . I i I I II I: !'