247-96 RDA
RESOLUTION NO.
247-96
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY AUTHORIZING AND DIRECTING
THE CHAIRMAN AND SECRETARY TO EXECUTE AN AGREEMENT OF
LEASE, HOTEL DEVELOPMENT AGREEMENT, GARAGE
DEVELOPMENT AGREEMENT, GARAGE EASEMENT AGREEMENT,
STOCK PURCHASE AGREEMENT, DECLARATION OF CONDOMINIUM,
CONDOMINIUM UNIT LEASE, BILL OF SALE, DECLARATION OF
COVENANTS AND RESTRICTIONS, ESCROW AGREEMENT AND
OTHER DOCUMENTS, AND AUTHORIZING AND DIRECTING THE
REDEVELOPMENT AGENCY TO ENTER INTO THE TRANSACTIONS
CONTEMPLATED BY SUCH AGREEMENTS AND DOCUMENTS, FOR
THE DEVELOPMENT AND OPERATION OF THE LOEWS MIAMI BEACH
HOTEL AT 1601 COLLINS A VENUE, MIAMI BEACH, FLORIDA, AND A
PUBLIC PARKING GARAGE PROJECT AT AND NEAR 16TH STREET
BETWEEN COLLINS AND WASHINGTON A VENUES, MIAMI BEACH,
FLORIDA; AND AUTHORIZING AND DIRECTING THE CHAIRMAN,
EXECUTIVE DIRECTOR, GENERAL COUNSEL AND SECRETARY OF
THE MIAMI BEACH REDEVELOPMENT AGENCY, AND THEIR
RESPECTIVE DESIGNEES AND OUTSIDE CONSULTANTS, TO
PERFORM ALL OTHER ACTIONS NECESSARY TO EFFECTUATE THE
PURPOSES OF THIS RESOLUTION, INCLUDING, WITHOUT
LIMITATION, MODIFYING, FILLING IN BLANKS IN AND ATTACHING
EXHIBITS TO THE AGREEMENTS.
WHEREAS, in February, 1993, the City CenterIHistoric Convention Village
Redevelopment and Revitalization Area was officially established by the adoption of a
Redevelopment Plan (the "Redevelopment Plan") resulting from the combined efforts of the City
of Miami Beach (the "City"), the Miami Beach Redevelopment Agency (the "Agency"),
Metropolitan Dade County, and the State of Florida; and
WHEREAS, the purposes of the Redevelopment Plan are, among other things, to eliminate
blight, establish redevelopment, foster the development of convention quality hotels, ancillary
improvements and facilities, and necessary linkages to the Miami Beach Convention Center; and
WHEREAS, pursuant to the Redevelopment Plan, the Agency acquired land, known as Site
I-A, at and near 16th Street east of Collins Avenue to facilitate the development of a convention
center hotel (the "Hotel"); and
WHEREAS, in furtherance of the Redevelopment Plan, the City published a Request for
Proposals (the "RFP") dated November 29, 1993, seeking, among other things, proposals for the
development and operation of a convention center hotel; and
WHEREAS, by virtue of a resolution adopted on July 21, 1994, after a public review
process, the City and the Agency selected St. Moritz Hotel Corporation ("SMHC"), an entity
affiliated with Loews Hotels Holding Corporation ("LHHC"), from among the groups which
submitted proposals pursuant to the RFP and directed representatives of the Agency to negotiate the
terms under which SMHC would develop, construct, own, and operate the Hotel in accordance with
requirements of the RFP; and
WHEREAS, the Agency and SMHC entered into that certain Letter ofIntent dated May 3,
1995, as amended (the "Letter of Intent"), which was approved by LHHC and the City, which,
among other things, provides for the development, construction, furnishing, and equipping of the
Hotel and the development and construction of a public parking garage (the "Public Garage") at and
near 16th Street between Collins and W ashington Avenues; and
WHEREAS, after the execution of the Letter of Intent, the Agency proceeded to negotiate
the terms of the various agreements and documents relating to, among other things, the development
of the Hotel and the Public Garage; and
WHEREAS, the proposed forms of the major agreements and documents to which the
Agency is proposed to be a party (collectively, the "Agreements") concerning the Hotel and the
Public Garage are attached hereto and incorporated herein; and
WHEREAS, the Agency desires to enter into the Agreements and certain other agreements
necessary in connection with the transactions contemplated hereunder; and
WHEREAS, several conditions need to be met before the Agreements become legally
binding; and
WHEREAS, those conditions are described in that certain Escrow Agreement, which is
also attached hereto and incorporated herein; and
WHEREAS, in accordance with Florida Statutes Section 163.380, the City and the Agency
have held a public hearing today concerning the disposition of certain properties relating to the
transactions contemplated by the Agreements.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY as follows:
1. The Chairman and Members of the Agency have determined that the transactions
contemplated by the Agreements serve a valid public purpose in accordance with the provisions of
the Redevelopment Plan.
2. The Agency is authorized and directed to enter into the transactions contemplated by
the Agreements and, in furtherance thereof, the Chairman and Secretary are authorized and directed
to execute and deliver all necessary documents and agreements, including, without limitation, the
following documents:
2
(a) That certain Agreement of Lease, attached hereto and incorporated herein as
Exhibit "A", between the Agency and MB Redevelopment, Inc. ("MB"), an
entity that will be affiliated with LHHC, pertaining to the land upon which
the Hotel is to be developed.
(b) That certain Hotel Development Agreement, attached hereto and
incorporated herein as Exhibit "B", between the Agency and MB.
( c) That certain Garage Development Agreement, attached hereto and
incorporated herein as Exhibit "C", between the Agency and SMHC.
(d) That certain Garage Easement Agreement, attached hereto and incorporated
herein as Exhibit "D", between the Agency and MB.
( e) That certain Declaration of Condominium, attached hereto and incorporated
herein as Exhibit "E", between the Agency and MB.
(f) That certain Condominium Unit Lease, attached hereto and incorporated
herein as Exhibit "F", between the Agency and MB.
(g) That certain Bill of Sale, attached hereto and incorporated herein as Exhibit
"G", between the Agency and MB, concerning the property commonly
known as the St. Moritz Hotel, having a street address of 1565 Collins
Avenue, Miami Beach, Florida.
(h) That certain Declaration of Covenants and Restrictions by the Agency,
attached hereto and incorporated herein as Exhibit "H", pertaining to the land
upon which the Hotel is to be developed.
(i) That certain Stock Purchase Agreement, attached hereto and incorporated
herein as Exhibit "I", between the Agency and LHHC, relating to the
purchase by LHHC of the stock ofMB.
G) That certain Escrow Agreement, attached hereto and incorporated herein as
Exhibit "J", between the Agency, the City, SMHC and LHHC.
3. The Chairman, Executive Director, General Counsel and Secretary of the Agency,
and their respective designees and outside consultants, are authorized to take such actions as may
be necessary to effectuate the purposes of this Resolution, including, without limitation, executing
and delivering related agreements, making changes, additions or deletions to, filling in blanks in and
attaching exhibits to the Agreements.
3
4. The Chairman, Executive Director, General Counsel and Secretary of the Agency,
and their respective designees and outside consultants, are authorized to take such actions as may
be necessary to effectuate the dispositions of property as referred to in this Resolution.
5. This Resolution shall take effect immediately upon its a
PASSED and ADOPTED this 17th day of July, 19 6.
ATTEST:
(
~o b~J~~
SECRETARY
f:\attoltacalresoslagrsexec.rda
FORM APPROVED
RfDfVflOPMfNTAGfNCY
GfN RAl co NSfl
By .f!;
Date 1./1l/1.t:
/'
4
Miami Beach
Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Telephone: (305) 673-7193
Fax: (305) 673-7772
REDEVELOPMENT AGENCY MEMORANDUM NO. 96-23
Date: July 17, 1996
TO: Chairman and Members of the Board
of the Miami Beach Redevelopment Agency
FROM: Jose Garcia-Pedrosa
Executive Director
SUBJECT: A RESOLUTION OF TH CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY AUTHORIZING AND DIRECTING THE
CHAIRMAN AND SECRETARY TO EXECUTE AN AGREEMENT OF LEASE,
HOTEL DEVELOPMENT AGREEMENT, GARAGE DEVELOPMENT
AGREEMENT, GARAGE EASEMENT AGREEMENT STOCK PURCHASE
AGREEMENT, DECLARATION OF CONDOMINIUM 1 CONDOMINIUM UNIT
LEASE, BILL OF SALE , DECLARATION OF COVENANTS AND
RESTRICTIONS 1 ESCROW AGREEMENTS AND OTHER DOCUMENTS 1 AND
AUTHORIZING AND DIRECTING THE REDEVELOPMENT AGENCY TO
ENTER INTO THE TRANSACTIONS CONTEMPLATED BY SUCH
AGREEMENTS AND DOCUMENTS, FOR THE DEVELOPMENT AND
OPERATION OF THE LOEWS MIAMI BEACH HOTEL AT 1601 COLLINS
AVENUE, MIAMI BEACH, FLORIDA, AND A PUBLIC PARKING GARAGE
PROJECT AT AND NEAR 16TH STREET BETWEEN COLLINS AND
WASHINGTON AVENUES, MIAMI BEACH, FLORIDA; AND AUTHORIZING
AND DIRECTING THE CHAIRMAN, EXECUTIVE DIRECTOR, GENERAL
COUNSEL AND SECRETARY OF THE MIAMI BEACH REDEVELOPMENT
AGENCY, AND THEIR RESPECTIVE DESIGNEES AND OUTSIDE
CONSULTANTS 1 TO PERFORM ALL OTHER ACTIONS NECESSARY TO
EFFECTUATE THE PURPOSES OF THIS RESOLUTION, INCLUDING,
WITHOUT LIMITATION, MODIFYING, FILLING IN BLANKS IN AND
ATTACHING EXHIBITS TO THE AGREEMENTS.
ADMINISTRATION RECOMMENDATION:
It is recommended that the Mayor and City Commission and the
Chairman and Members of the Redevelopment Agency (RDA) approve the
above transactions and related docurnents, and authorize the
execution of necessary documents and taking of necessity actions to
implement the project.
S()U11l V()I~I:
l2edevel()pment Uistnf:t
CIIT CI:~1:12
l?edevelf)pment Uismf:t
AGENDA ITEM 2-C
July 17, 1996
BACKGROUND:
The City of Miami Beach and the RDA are at the threshold of an
historic event. The first new maj or hotel in three decades is
about to be built in Miami Beach. This event comes through the
concerted efforts of this City Commission and RDA, its wisdom to
appoint a respected community leader to chair the effort, and the
hard work of its administrative and legal staff.
ANALYSIS:
The effort began in earnest with the creation of the City Center
Redevelopment Area in February, 1993. An RFP was issued in
November of 1993 and, after a thorough and professional selection
process, Loews was ranked number one, on July 21, 1994.
A detailed letter of intent was entered into on May 3, 1995, which
committed the developer to enter into design development work for
the project. This step is unprecedented in development agreements
and has saved almost a year in the development process. The
developer has obtained all necessary approvals from the City,
except for the building permits, which can be issued immediately
after this action today.
The project is a high-quality, first-class convention hotel which
will help bring substantial new business to the Convention Center.
Several public projects will occur simultaneously with the hotel
development:
. The opening of 16th Street between Collins & Washington
. The development of an 800-car public parking garage
. The extension of a built boardwalk from the southerly terminus
of the present wooden boardwalk to Lummus Park
. The beautification and improvement of Collins Avenue from
15th Street to Lincoln Road
Finally, three major development projects to the south 1 the II
Villagio Condominiums 1 the 1500 Ocean project (Constructa)1 and the
Crowne Plaza Hotel will complete the missing pieces of the urban
fabric that will unite the Ocean Drive area to the City
Center/Historic Convention Village area.
CONCLUSION:
The City Commission/RDA should approve the transactions.
JGP:fitt
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the" Agreement"), dated as of the 17th day of July
1996, between MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic
(the" Agency"), the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida
(the "City"), ST. MORlTZ HOTEL CORP., a Florida corporation ("SMIlC"), LOEWS HOTELS
HOLDING CORPORATION, a Delaware corporation ("LHHC"), and SQUIRE, SA.~TIERS &
DEMPSEY, an Ohio general partnership (the "Escrow Agent").
RECIT ALS:
A. In February 1993. the City Center/Historic Convention Village Redevelopment anC
Revitalization Area was officially established by the adoption of the Redevelopment Plan, resulting
from the combined efforts of the City, the Agency, Metropolitan Dade County and the State of
Florida. The purposes of the Redevelopment Plan are, among other things. to eliminate blighL
establish redevelopment, foster the development of convention quality hotels, ancillary improvements
and facilities, and necessary linkages to the Miami Beach Convention Center.
B. Pursuant to the Redevelopment Plan, the Agency acquired the Land, known as
Site I-A, which it has agreed to make available for the Hotel.
C. In furtherance of the Redevelopment Plan, the City published a Request for Proposals
(the "RFP") dated November 29, 1993, seeking, among other things, proposals for the developmem
and operation of a convention headquarters hotel.
D. By virtUe of a resolution adopted on July 21, 1994, after a public review process, the
Agency selected SMHC from among the groups which submitted proposals pursuant to the RFP and
directed representatives of the Agency to negotiate the terms under which SMHC would develop.
construct, own and operate the Hotel in accordance with requirements of the RFP.
E. The Agency and SMHC entered into a Letter of Intent (as the same may have been
amended from time to time, the "Letter of Intent"), dated May 3, 1995, and approved by urnc and
the City, which, among other things, provides for the development, construction, furnishing and
equipping of the Hotel.
F. Representatives of the Agency and the City, and SMHC, with the advice and assistance
of counsel have agreed on the material terms of the principal definitive documents listed on Exhibit A...
attached hereto and made a part hereof (collectively, the "Escrowed Documents") necessary to
implement the transactions contemplated by the Letter of Intent.
W6.M1961920.01I
G. By resolutions adopted July 17, 1996, the Agency and the City have approved the
transactions contemplated by the Escrowed Documents, and have authorized and directed the
appropriate officers of the Agency and the City to date, execute and deliver the Escrowed Documents
and cause them to be become effective, subject to the provisions of this Agreement.
H. By resolutions adopted July 17, 1996, LHHC has approved the transactions
contemplated by the Escrowed Documents, and has authorized and directed the appropriate officers of
LHHC to date, execute and deliver the Escrowed Documents and cause them to be become effective,
subject to the provisions of this Agreement.
1. Definitions. For purposes of this Agreement, although the Ground Lease, as defined in
Exhibit A, is one of the Escrowed Documents, all defined terms used herein shall have the same
meanings as ascribed to such terms in the Ground Lease, as defined in Exhibit A, except as otherwise
noted.
2. Items in Escrow. The Agency, the City, SMHC and LHHC (collectively, the "Parties")
hereby deliver to Escrow Agent the original Escrowed Documents and Escrow Agent hereby
acknowledges receipt of the Escrowed Documents. The Escrowed Documents have been executed by
the parties thereto, but are in escrow, and therefore remain undated, not effective and unenforceable,
until such time as the Escrowed Documents are released from escrow in accordance with the terms of
this Agreement.
3. Agreement of Escrow Agent. Escrow Agent agrees to act, without fee, in accordance
with the terms and conditions of this Agreement and the instructions contained herein.
4. Instructions and Conditions. Escrow Agent shall hold all the Escrowed Documents in
escrow until the earlier of (a) the satisfaction or waiver by the Parties, each in their sole and absolute
discretion, of those certain conditions precedent enumerated on Exhibit B, attached hereto and made a
part hereof (collectively, the "Conditions ") or (b) October 31, 1996 or such later date as the Parties may
agree to in writing (the "Termination Date"). If by the Tennination Date, Escrow Agent has not been
notified by the Parties that all of the Conditions have -been satistied or waived by the Parties in
accordance with the provisions of this Agreem~nt or that the Tennination Date has been extended, then
Escrow Agent is instructed to destroy all signatures on the Escrowed Documents. Upon Escrow Agent's
receipt of written notice from the Parties that the Conditions have been satistied or waived in accordance
with the provisions of this Agreement, Escrow Agent is instructed to deliver the Escrowed Documents to
the Parties at the place and time designated by the Parties in their notice to Escrow Agent of such
satisfaction or waiver. Any Party or Escrow Agent may, at its option, demand a receipt acknowledging
delivery of any Escrowed Documents.
5. Effective Date; Additional Signatures. Upon release of the Escrowed Documents in
accordance with the provisions hereof, the consummation of the transactions contemplated by the Letter
of Intent shall occur. In accordance therewith, (a) the officers for the Parties shall (i) till-in any and all
blanks in the Escrowed Documents, (ii) attach any and all exhibits that have not heretofore been attached
-2-
W6-MI961920.011
to the Escrowed Documents, (iii) make any necessary revisions to the Escrowed Documents as mutually
agreed to by the Parties and (iv) date the Escrowed Documents as of the date of such release, which date
shall be the effective date thereof, (b) because the parties to the Escrowed Documents have executed
one (l) original of each of the Escrowed Documents, upon release of the Escrowed Documents in
accordance with the provisions hereof, the parties to the Escrowed Documents shall execute additional
originals thereof, in order that each Party have original fully executed counterparts of the Escrowed
Documents and (c) the Parties shall take or cause to be taken such further actions and execute and
deliver or cause to be executed and delivered such other instruments as may be reasonably requested by
the other Parties in order to consummate the transactions contemplated by the Escrowed Documents
(including, without limitation, the closing of the construction fInancing described on Exhibit B).
6. Disputes.
(a) In the event of any disagreement between the Parties resulting in conflicting
instructions to, or adverse claims or demands upon Escrow Agent with respect to the release of the
Escrowed Documents, Escrow Agent shall refuse to comply with any such instruction, claim or demand
so long as such disagreement shall continue, and in so refusing Escrow Agent shall not release the
Escrowed Documents. Escrow Agent shall not be or become liable in any way to any of the Parties for
its failure or refusal to comply with any such conflicting instructions or adverse claims or demands, and
it shall be entitled to continue so to refrain from acting until such conflicting or adverse demands shall
have (i) been settled by agreement and Escrow Agent receives notice thereof by all the Parties or
(ii) finally been determined by a court of competent jurisdiction.
(b) If any of the Parties or Escrow Agent shall be in disagreement about the
interpretation of this Agreement, or about their respective rights and obligations, or about the propriety
of any action contemplated by Escrow Agent, or if Escrow Agent receives or becomes aware of
conflicting demands or claims with respect to this escrow or the rights of any of the Parties hereto or
documents deposited herein or affected hereby, Escrow Agent may, but shall not be required to, file an
action in interpleader to resolve the disagreement or dispute and, upon filing such action, Escrow Agent
shall be released from all obligations under this Agreement. If any action arising out of this Agreement
is commenced by any of the Parties, Escrow Agent may deposit the Escrowed Documents with the clerk
of the court in which such action is commenced or pending and, upon depositing the Escrowed
Documents, Escrow Agent shall be released from all obligations under this Agreement.
7. Indemnity.
(a) Each of the Parties hereby jointly and severally agree to save harmless, indemnify
and defend (with counsel chosen by Escrow Agent) Escrow Agent for, from and against any loss,
damage, liability, judgment, cost and expense whatsoever, including attorneys' fees (either paid to
retained attorneys or the fair value of services rendered to itself), suffered or incurred by it, by reason of,
or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this
Agreement, except for any loss, damage, liability, judgment, cost or expense resulting from gross
negligence or willful misconduct on the part of Escrow Agent.
- 3 -
W6-MI961920.0ll
(b) Escrow Agent shall not be required to defend any legal proceeding which may be
instituted against it in respect of the subject matter of this Agreement unless requested to do so by all the
Parties and indemnified to Escrow Agent's satisfaction against the cost and expense of such defense. If
any such legal proceeding is instituted against it, Escrow Agent agrees promptly to give notice of such
proceeding to the Parties. Escrow Agent shall not be required to institute legal proceedings of any kind.
8. Liability, Duties and Responsibility of Escrow Agent.
(a) Escrow Agent undertakes to perform only such duties as are expressly set forth in
this Agreement. Escrow Agent shall not be deemed to have any implied duties or obligations under or
related to this Agreement.
(b) Escrow Agent may (i) act in reliance upon any writing or instrument or signature
which it, in good faith, believes to be genuine; (ii) assume the validity and accuracy of any statement or
assertion contained in such a writing or instrument; and (iii) assume that any person purporting to give
any writing, notice, advice or instructions in connection with the provisions of this Agreement has been
duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or
corrections as to form, manner of execution, or validity of any instrument deposited in escrow, nor as to
the identity, authority, or right of any person executing any instrument.
(c) It is acknowledged that Escrow Agent is counsel for the Agency and the City. It
is agreed that Escrow Agent shall not be disabled or disqualified from representing the Agency and the
City, its officers, directors, employees or agents in connection with any dispute or litigation which may
arise out of or in connection with this Agreement or the transactions contemplated by the Escrowed
Documents as a result of Escrow Agent al:ting as Escrow Agent under this Agreement and SMHC and
LHHC waive any claim or right to assert a conflict of interest arising out of or in connection with the
foregoing.
9. Notices. Whenever it is provided herein that notice, demand, request, consent, approval
or other communication shall or may be given to, or served upon, any of the Parties, or whenever any of
the Parties desires to give or serve upon thl;: other any notice, demand, request, consent, approval or other
communication with respect hereto, each such notice, demand, request, consent, t'pproval or other
communication shall be in writing and shall be effective for any purpose only if given or served by
(a) certified or registered U.S. Mail, postage prepaid, return receipt requested, (b) personal delivery with
a signed receipt or (c) a recognized national courier service, addressed as follows:
If to SMHC or LHHC:
St. Moritz Hotel Corp.
407 Lincoln Road
Suite 6-k
Miami Beach, Florida 33139
Attention: Jv1r. Eric A. Nesse
-4-
W6-MI961920.011
and to:
Loews Hotels Holding Corporation
667 Madison A venue
New York, New York 10021
Attention: Corporate Secretary
with a copy to:
Hughes Hubbard & Reed
201 S. Biscayne Boulevard, Suite 2500
Miami, Florida 33131
Attention: William A. Weber, Esq.
If to the Agency or the City:
Miami Beach Redevelopment Agency
Executive Director
1700 Convention Center Drive
Miami Beach, Florida 33139
with a copy to:
Miami Beach Redevelopment Agency
General Counsel
1700 Convention Center Drive
Miami Beach, Florida 33139
and to:
City of Miami Beach
City Managc:r
1700 Convention Center Drive
Miami Beach, Florida 33139
with a copy to:
City of Miami Beach
City Attome:y
1700 Convention Center Drive
Miami Beach, Florida 33139
- 5 -
W6-MI961920.011
and
Squire Sanders & Dempsey
Two Renaissance Square
40 North Central Avenue
Suite 2700
Phoenix, Arizona 85004
Attention: Richard F. Ross, Esq.
If to Escrow Agent:
Squire Sanders & Dempsey
201 S. Biscayne Boulevard, Suite 2900
Miami, Florida 33131
Attention: Luis Reiter, Esq.
Any such notice may be given, in the manner provided in this Section, on either party's behalf by its
attorneys designated by such party by noti<:e hereunder. Every notice given hereunder shall be effective
on the date actually received, as indicated on the receipt therefor or on the date delivery thereof is
refused by the recipient thereof. Any Party hereto may by notice delivered to Escrow Agent and the
other Parties, change its address for purposes of this Agreement.
10. Modification. No covenant, agreement, term or condition of this Agreement shall be
changed, modified, altered, waived or terminated except by a written instrument of change,
modification, alteration, waiver or termination executed by all Parties. Escrow Agent shall not be
bound by any modification of this Agrec:ment, unless there is delivered to Escrow Agent a written
modification signed by all the Parties. No such modification shall, without the written consent of
Escrow Agent, modify the provisions of the Agreement relating to the duties, obligations or rights of
Escrow Agent.
11. Successors. This Agreement shall be binding upon and inure to the benefit of the Parties,
their heirs, executors and administrators; provided, however, that neither this Agreement nor any of the
rights, interests or obligations hereunder may be asSigned by any of the Parties hereto without the prior
written consent of the other Parties.
12. Construction. This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida, without regard to principles of conflict of laws.
13. Miscellaneous. The titles to the paragraphs or sections of this Agreement are solely for
the convenience of the Parties and Escrow Agent and shall not be used to explain, modify, simplify or
aid in the interpretation of the provisions of this Agreement. All references in this Agreement to the
tenns "herein", "hereunder" and words of similar import shall refer to this Agreement, as distinguished
from the paragraph or Section within whilch such term is located. This Agreement may be executed in
-6-
W6-MI961920.011
counterpartS, each of which shall be deemed an original but all of which together shall represent one
instrument. If any provision of this Agreement or the application thereof to any person or circumstances
is, to any extent, fInally determined by a COlLlrt of competent jurisdiction to be invalid and unenforceable,
the remainder of this Agreement, and the application of such provision to persons or circumstanCes other
than those as to which it is held invalid and unenforceable, shall not be affected thereby and each tenn
and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
14. Design Development Expense Reimbursement. Paragraph 11 of the Letter of Intent is
hereby deleted in its entirety and replaced with the following:
11. The parties acknowledge that SMHC will, of necessity, incur significant
out-of-pocket costs for professional architectural design, engineering and other technical advice and
services in connection with the design, construction and permitting of the Hotel (the "Design Costs")
prior to the consummation of the transactions contemplated by the Escrowed Documents, as defined in
that certain Escrow Agreement between the Agency, the City, SMHC and LHHC, dated July 17, 1996
(the "Escrow Agreement"). In consideration of the foregoing, and in order to insure the timely
consummation of the transactions contemplated by the Escrowed Documents, SMHC and the Agency
have agreed that SMHC's Design Costs (which Design Costs incurred by SMHC through the
Termination Date (as defined in the Escrow Agreement) are hereinafter referred to as the "Total Design
Costs"), will be subject to reimbursement, as follows:
(a) if the Agency or the City, as applicable, has not, prior to the Termination Date,
entered into binding agreements to raise the funds necessary to meet its obligations as
contemplated by Paragraph 2(b)(3) and Paragraphs 3(a) and (b) of the Letter of Intent, then the
Agency shall pay to SMHC the Total Design Costs, no later than fifteen (15) days after the
later of (i) the Termination DatI: and (ii) submission by SMHC to the Agency of written
documentation verifying that such Total Design Costs have been incurred;
(b) if SMHC has not by the Termination Date entered into binding financial
commitments to obtain the first mortgage fmancing as contemplated by Paragraph 2(b)( 1) of
the Letter of Intent, SMHC shall bear all Total Design Costs inc':lITed by it (although SMHC
represents to the Agency that, as of the date of the Escrow Agreement, it has obtained such
binding financial commitments);
(c) if the Conditions (as defined in the Escrow Agreement) are not satisfied or waived
by the Termination Date and l:he Parties thereunder fail to consummate the transactions
contemplated by the Escrow Agreement and the Escrowed Documents, for any reason
whatsoever (other than as expressly set forth in subparagraphs (a) and (b) above), SMHC shall
bear one-half (112) of the Total Design Costs and the Agency shall pay to SMHC one-half (112)
of the Total Design Costs, no later than fifteen (15) days after the later of (i) the Termination
Date and (ii) submission by SMHC to the Agency of written documentation verifying that such
Total Design Costs have been ineurred.
-7-
W6-MI961920.011
1 S. Termination. Paragraph 12(0 of the Letter oflntent is hereby deleted in its entirety and
. replaced with the following:
(t) Subject to the provisions of Paragraph 11, this Letter of Intent may be terminated
by either party if the Conditions, as defined in the Escrow Agreement. have not been satisfied or waived
in accordance with the provisions of the Escrow Agreement by the Termination Date, as defined in the
Escrow Agreement.
16. Entire Agreement. This Agreement contains all of the promises, agreements, conditions,
inducements and understandings between the Parties and there are no promises, agreements, conditions,
understandings, inducements, warranties or representations, oral or written, express or implied, between
them other than as expressly set forth herein or as may be expressly contained in any enforceable written
agreements or instruments executed simultaneously herewith by the Parties hereto, except for (a) the
Letter of Intent and (b) that certain Hold Harmless and Indemnification Agreement dated December 18,
1995 and December 20, 1995, between the Agency and SMHC, as the same may heretofore have been
or may hereafter be amended.
- 8 -
W6-MI961920.011
EXECUTION
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have executed this
Agreement as of the day and year fIrst above written.
ATTEST:
By:
~ 6 ~tfJ:dAd.JA"
Robert Parcher
Secretary
Date:
51./"1/7/ I~ft
ATTEST:
By: -.E 0 lu..L;r Pa,..c.k
Robert Parcher
City Clerk
Date: ;J,,{'1 1-, Ilff~
W6-MI961920.011
MIAMI BEACH REDEVELOPMENT AGENCY
Date:
FORM APPROVED
REDEVELOPMENT AGENCY
GENERAL ca
8M /1tr .
,
71r,/,r:
Date
CITY OF ~ BEACH, FLORIDA
/,
//
/
T.., "l III Ilf9 b
FORM APPROVED
LEGAL D~T.~,
By ~411JJuftL-
Date 711(/~b
-9-
ST. MORITZ HOTEL CORP.,
.6ftVl-.
(I
L
ATTEST:
By:
L
Date:
:Ju..&, 17" ffb
,
Date: ::ft.(" 17, I Cf'f'J.
~"
LOEWS HOTELS HOLDING CORPORATION
('?
t:1
'(
~
By:
fk
e--
By:
Name:
Title:
ATTEST:
Date: j~('1171,c;9b
Date:
3",('1 III IcrI~
,
""'1iW I'~
~
~
~
~
It'
(\
N ~)~~~
- 10-
W6-HI961920.011
The undersigned agrees to act as Escrow Agent under the tenns and conditions of this Agreement
and is executing this Agreement solely for s:Jch purpose.
SQUIRE, SANDERS & DEMPSEY
By: ----/~
Name: ;{:lf~^
f
Tide: f' ,Ayt /)"V C't\..
Date: :I.A.,. 17, 199(;,
- 11 -
W6-MI961920.0ll
Exhibit A
List of Escrowed Documents
1. Stock Purchase Agreement between the Agency, as Stockholder, and LHHC, as Buyer, in
connection with the stock of MB Redevelopment, Inc. ("MB ").
2.
Lease").
Agreement of Lease betwec:n the Agency, as Owner, and MB, as Tenant (the "Ground
3. Hotel Development Agreement between the Agency, as Owner, and MB, as Developer
(the "HDA").
4. Garage Development Agreement between the Agency, as Owner, and SMHC, as
Developer (the "GDA").
5. Garage Easement Agreement between the Agency, as Grantor, and MB, as Grantee.
6. Convention Center Agreement between the City, as Owner, and MB, as Hotel Owner.
7. Completion Guarantee from Loews Corporation, as Guarantor, to the Agency, as
Owner under the Hotel Development Agreement.
8. Completion Guarantee from the City, as Guarantor, to MB, as Tenant under the
Ground Lease, regarding certain of the Agency's obligations under Article 21 of the Ground Lease.
9. Garage Easement Guarantte from the City, as Guarantor, to MB, as Grantee under the
Garage Easement Agreement.
10. Stock Purchase Agreement Guarantee from the City, as Guarantor, to MB, as Grantee
under the Garage Easement Agreement.
11. Declaration of Condominium for Loews Miami Beach Hotel, a Condominium, between
the Agency and MB, as Co-Declarants.
12.
Condominium Unit Lease, between the Agency, as Owner, and MB, as Tenant.
13.
Grantee.
Bill of Sale for existing improvements, between the Agency, as Grantor, and MB, as
14.
Declaration of Covenants ,md Restrictions by the Agency, as Owner.
W6-MI961920.01I
15. Quit-Claim Deed from the City, as Grantor, to the Agency, as Grantee, regarding
certain real property relating to the Property, as defined in the GDA.
-2-
W6-MI961920.0ll
Exhibit B
Conditions
On or prior to the Termination Date, the following conditions shall have been satisfied, or
waived by the Parties, each in their sole and absolute discretion:
I. The Agency shall own fee simple title, free and clear of all encumbrances (except those
encumbrances approved by SMHC in its reasonable discretion), to the Property, as defined in the GDA,
on which the Garage and the 16th Street Opening, both as defmed in the GDA, will be constructed. The
Agency and the City shall diligently prosecute the pending condemnation action through its conclusion
at the trial court level.
2. The Construction Plans, Development Drawings, GMP and Development Budget, all as
defined in the GDA, shall have been approved Agency and SMHC. The Construction Plans and
Development Drawings shall be based on the preliminary Construction Plans and Development
Drawings as existing on the date of this Agreement prepared by the Architect and Consultant, both as
defined in the GDA.
3. The Title Matters shall not be varied, modified or added to in any manner whatsoever.
Toward that end, the Agency and the City will not permit or suffer any encumbrance, mortgage, pledge
or hypothecation of its interest in the Land.
4. The Developer and the Agency shall have approved the final Plans and Specifications and
the Development Budget, as such terms are defined in the HDA, for the Hotel, and the Developer shall
have approved in its sole discretion a satisfactory Guaranteed Maximum Price ("GMP") Construction
Contract for the construction of the Hotelln accordance with the Plans and Specifications, which GMP
shall have been submitted to the Agency.
5. The Tenant under the Ground Lease shall have obtained first mortgage construction
financing from Bankers Trost Company (as agent), on terms and conditions satisfactory to SMHC, in its
sole discretion.
6. The City and/or the Agency shall have obtained (a) an aggregate of 532,000,000, from a
combination of the Bonds and the HUD Flmds, both as defined in the lIDA, which 532,000,000 shall be
deposited and applied as described in the HDA, plus (b) additional funds from a combination of bond
proceeds and State of Florida grant moneys sufficient for the construction of the Garage and the 16th
Street Opening, both as defined in the GDA, which funds shall be used to complete the Garage and the
16th Street Opening, both as defined in the GDA, as contemplated by the GDA.
W6-M196 1920.01 I
7. The Parties shall have finali:r:ed (i) any and all blanks in the Escrowed Documents to be
filled-in, (ii) any and all exhibits that have not heretofore been attached to the Escrowed Documents,
(iii) any necessary revisions to the Escrowed Documents as mutually agreed to by the Parties and
(iv) the following additional definitive agreements for signature, simultaneously with the release of the
Escrowed Documents:
(a)
Ground Lease.
Beach Easement between the Agency and MB, as described in Section 21.6 of the
(b) Hotel Management Agreement between MB and Loews Miami Beach Hotel
Operating Company Inc., as Hotel Manage:r.
(c) Attornment Agreeme:nt between the Agency, MB and Loews Miami Beach Hotel
Operating Company Inc., as Hotel Manage:r.
(d) Master Lease, as defined in the Garage Easement Agreement, between the Agency
and MB for the Retail Space, as defined in 1:he Garage Easement Agreement.
(e) Opinions of Counsel. by Squire, Sanders and Dempsey and the General Counsel
for the Agency pursuant to the Stock Purchase Agreement.
(f) Opinions of Counsel by Hughes Hubbard & Reed and the General Counsel for
LHHC pursuant to the Stock Purchase Agreement.
(g) Opinions of Counsel by Squire, Sanders and Dempsey and the General Counsel
for the Agency and the City Attorney for the City regarding the Escrowed Documents and other
definitive agreements.
(h) Opinions of Counsel by Hughes Hubbard & Reed and the General Counsel for
LHHC and Loews Corporation regarding the Escrowed Documents and other definitive agreements.
(i) Agreement between the City, the Agency and Bankers Trust Company regarding
disbursement of funds.
8. . The Tenant under the Ground Lease shall have approved the Report for the 16th Street
End, and any updates to the Reports, all as described in Exhibit 35.3 of the Ground Lease.
-2-
W6-HI961920.011
BEACH CONCESSION AGREEMENT
THIS BEACH CONCESSION AGREEMENT ("Agreement") made the 1 st day of
October, 1998 between the City of Miami Beach, a municipal corporation of the State of Florida
(hereinafter called the "City") and MB Redevelopment, Inc., a Florida corporation, with offices at
667 Madison Avenue, New York, New York 10021-8087 (hereinafter called the
"Concessionaire") .
WIT N E SSE T H:
WHEREAS, the State of Florida nhe "State"), acting by and through the Trustees of the
Internal Improvement Trust Fund, owns all beach property within the City of Miami Beach (the
"City") that lies seaward of the erosion ccntrolline; and
WHEREAS, the City and the State have heretofore entered into a Management
Agreement dated February 3, 1982 (Agreement No. 750-0006, subsequently renumbered
Management Agreement No. 3595, and hereinafter referred to as the "Beachfront Management
Agreement"), pursuant to which the City agreed, among other things, to maintain the beaches
lying within the City limits; and
WHEREAS, the City is vested with jurisdiction over and control of all City parks and
open space in the City of Miami Beach and is responsible for the operation and maintenance of
such facilities under its jurisdiction as may be necessary, desirable or convenient 'for the use of
the public for healthful recreation; and
WHEREAS, the City has heretofore executed, for certain limited purposes, that certain
Agreement of Lease (the "Ground Leasl~") between the Miami Beach Redevelopment Agency
(the "Owner") and MB Redevelopment, Inc., as tenant, dated as of September 20, 1996,
pursuant to which, among other things, Owner leased to Concessionaire the land (the "Land")
underlying the Loews Miami Beach Hotel at 1601 Collins Avenue, Miami Beach, Florida (the
"Hotel"); and
WHEREAS, pursuant to the Ground Lease, the City has agreed to grant to the
Concessionaire the exclusive privilege of operating a concession on the beach at the
Concession Area (as hereinafter defined) to provide goods and services as hereinafter
described, and the City and Concessionaire desire to enter into this Agreement for the operation
of said concession.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, it is agreed by the parties hereto as follows:
1. Grant of Concession. The City hereby grants to Concessionaire, and
Concessionaire hereby accepts from the City, an exclusive agreement to operate the following
described concession on the beach Wi~st of the sand dunes and east of the sand dunes
immediately adjacent and east of the Hotel and having a width from the northerly boundary to
the southerly boundary of the Land (the "Concession Area") and in accordance with the purpose
and for the period stated herein and subject to the terms and conditions herein contained;
provided, however, that (a) no concesBion activity (or other activity whatsoever, except for
maintenance and cleaning in conformance with state, federal, county and municipal laws) shall
H:\ 154\BEACHAGM.DOC
be conducted upon any sand dunes witl,in the Concession Area, and (b) Concessionaire shall
maintain the sand dunes within the Concession Area, including keeping said sand dunes free of
litter and foreign objects.
2. Term. This Agreement ~;hall commence on the Hotel Opening Date (as such
term is defined in the Ground Lease) and shall end on the fifth anniversary following such
commencement date (the "Term"). Concessionaire may, provided that it is not in default of any
terms of this Agreement, in its sole diBcretion, extend the Term under all of the terms and
conditions contained in this Agreement for successive five-year periods during the Term of the
Ground Lease, but only until March 30 2023, unless the parties mutually agree to a further
extension of the Term. Concessionaire s hall give the City written notice of its intention to extend
the Agreement term at least thirty (30) clays prior to the end of the Term then in effect. In the
event of a default by Concessionaire as Tenant under the Ground Lease which results in the
termination of the Ground Lease, this Agi-eement shall terminate simultaneously therewith.
I
I
3. Facilities. Concessionai"e shall, at its sole cost and expense, provide or
construct all facilities used in connection with this Agreement. Concessionaire shall maintain
such facilities (the "Facilities") at its sole cost and expense, without limiting thereby the City's
obligations, pursuant to Section 14.5 01' the Ground Lease, which is incorporated herein by
reference, to maintain the boardwalk adjclcent to the Hotel, the sand dunes, and the beach area.
Any construction or location of the Facilities shall be performed in accordance with all applicable
federal, state and local law and all neces::;ary permits will be obtained prior to commencement of
construction or location. In addition, the Facilities shall be designed in a manner that is
consistent with the City's Beachfront Management Plan, as amended, which has been adopted
by the City in accordance with the Beachfront Management Agreement and the Rules and
Regulations for Beachfront Concession Operations, as amended.
4. Uses. Concessionaire is hereby authorized to conduct the following kinds of
business and to provide the following serlices at the Concession Area:
(a) Food and Beveracle Service. Sale of food and/or beverages from the
Facilities, and if permitted by the City, from permanent designated locations on the beach. To
the extent that the City permits other concessionaires on the beach to sell food and/or
beverages from pushcarts or mobile vehicles, Concessionaire shall also be permitted to do so.
(b) Beach Eauioment and Rentals. Rental of beach equipment including, but
not limited to, chairs, umbrellas, rafts, or other non-motorized personal floatation devices.
(c) Beach Products. At the discretion of Concessionaire, the concession
may include the sale of beach products.
(d) Water Recreational Eauioment. Rental of special recreational equipment
on the beach including, but not limited to, surfboards, windsailing, catamarans, and motorized
and non-motorized personal watercraft. Any special water recreational activity is subject to the
prior approval of the Miami Beach Marine Authority (and any other governmental authority
whose approval is required) and may be permitted upon Concessionaire's obtaining applicable
insurance (at Concessionaire's sole cost and expense) required and approved by the City. The
location for the rental of such surfbc1ards, windsailing, catamarans, and motorized and
non-motorized personal watercraft shall be determined by the City, in its reasonable discretion,
and such surfboards, windsailing, catamarans, and motorized and non-motorized personal
- 2 -
H:\ 154\BEACHAGM.DOC
watercraft shall be operated in channels which shall be clearly identified in accordance with the
Beachfront Management Plan, and not in any areas designated for swimmers and/or bathers.
(e) Special Events. Concessionaire may provide "Special Events" (as
hereinafter defined) as may be desired by Concessionaire from time to time, provided that any
Special Event shall be subject to the prior approval of the City and subject to the City's
applicable rules and procedures for such Special Events.
(f) Miscellaneous. Such other businesses and services permitted by the
City.
All of the above activities shall be conducted in strict accordance with all applicable
federal, state and local laws, rules and re,gulations.
5. No Concession Fees. Concessionaire shall not be required to pay any
concession fees in connection with this Agreement or the concession; provided, however, that
Concessionaire shall pay to the State of Florida concession fees in an amount, if any, required
from time to time by law or regulation by the State of Florida. Such fees will be subject to any
applicable sales and use taxes. Concession fees shall be net to the State of Florida. As of the
date of this Agreement, the State of Florida imposes no concession fees.
6. Special Events. The beach area is for the use of the public for recreation and
other public purposes and the public's right to such use shall not be infringed upon by any
activity of Concessionaire. However, tr is does not preclude Concessionaire from scheduling
promotional events or "Special Events" (as hereinafter defined), including events which might
temporarily limit access to the event site, subject to the prior approval of the City Manager and
Concessionaire's compliance with the City's rules and procedures for Special Events.
Concessionaire shall have the exclusive right to provide Special Events within the Concession
Area (except that the City shall not be precluded from using the Concession Area for public
and/or civic purposes as deemed necessary or desirable). For purposes of this Agreement, the
term "Special Event" shall mean a concert or other attraction which will 'involve production
expenses of at least $250,000.00, adjusted for inflation, including, without limitation, expenses
in connection with talent and accommcdations therefor, advertising and promotion, security,
beach area clean-up, insurance, and legal and other professional expenses.
7. Permits: Licenses: Taxes:. Concessionaire agrees to obtain and pay for all
permits and licenses necessary for the conduct of the business and agrees to comply with all
laws governing the responsibility of cln employer with respect to persons employed by
Concessionaire. Concessionaire shall also be solely responsible for payment of any and all
taxes levied on the concession operation. In addition, Concessionaire shall comply with all
rules, regulations and laws of the City of Miami Beach, Miami-Dade County, the State of Florida,
or the federal government now in force or hereafter to be adopted.
8. Utilities. Concessionaire agrees to pay for all utilities used within the Concession
Area.
9. Sianaae. Concessionaire shall have the right to post signage and other
postings desired by Concessionaire in tre Concession Area. Such signage shall be subject to
the prior approval of the City, which appn:>val shall not be unreasonably withheld or delayed. All
signage shall be in compliance with all m Jnicipal, state, county and federal laws.
- 3 -
H:\ 154\BEACHAGM.DOC
10. Trash and Garbaae Removal. Concessionaire shall provide, at its expense,
receptacles for trash, rubbish and garbage within the confines of its area and shall provide a
sufficient number of these receptacles for Concessionaire's own use and for the use of the
public. The removal of trash, rubbish and garbage shall be the responsibility of Concessionaire
and shall be performed on a daily basis. Receptacles for trash, rubbish and garbage shall be
subject to the prior approval of the City, which approval shall not be unreasonably withheld or
delayed.
I
I
I
j
I
I
i
I
I
I
I
I
i
11. Indemnification. Concessionaire shall indemnify and hold the City harmless from
all loss, cost, liability, claim, damage clnd expense (including, without limitation, reasonable
attorneys' fees and disbursements), pen,3lties and fines, incurred in connection with claims by a
person or entity against the City arisin~1 from (a) the use or occupancy or manner of use' or
occupancy of the Concession Area by Concessionaire or any person claiming through or under
Concessionaire or (b) any acts, omil>sions or negligence of Concessionaire, or of the
contractors, agents, servants, employee!s, guests, invitees or licensees of Concessionaire, to
the extent in, about or concerning the Concession Area, including, without limitation, any acts,
omissions or negligence in connection with any construction work or in the making or performing
of any repairs, restoration, alterations or improvements, except to the extent any of the
foregoing is caused by the negligence or willful misconduct of the City or its agents.
12. Insurance Reauirements.
I
I
I
I
I
I
I
1
I
I
I
I
f
(a) Liabilitv Insurance At all times during the Term, Concessionaire, at its
sole cost and expense shall carry or caLise to be carried insurance against liability with respect
to the Concession Area and the operations related thereto in an amount of not less than One
Million Dollars ($1,000,000) per occurrence combined single limit and designating the City as an
additional insured.
(b) Property InsurancE~. At all times during the Term, Concessionaire, at its
sole cost and expense, shall carry or cause to be carried "All Risk" (or its equivalent) property
damage insurance protecting Concessionaire and the City, as their interests may appear,
against loss to the Facilities. Concessionaire will be designated as "loss payee".
(c) Construction Insuf3nce. Prior to the commencement of any construction
work, Concessionaire shall procure or C2luse to be procured, and after such dates shall carry or
cause to be carried, until final completkm of such work, in addition to and not in lieu of the
insurance required by the foregoing subsections (a) and (b).
13. Records: Audit. Concessionaire agrees to establish and maintain (separate from
the Hotel's books and records) books of account reflecting the operation of the Concession
Area. The City and its representatives shall have, during normal business hours and upon
reasonable advance notice, access to inspect (but not photocopy) the books and records of
Concessionaire, including, without limitation, books of account properly reflecting the operations
of the Concession Area, which books clnd records shall be kept at the Hotel. Such right of
inspection and audit may be exercised at any time once within any twelve-month period and
within one (1) year after the end of the Term to which such books and records relate, and
Concessionaire shall maintain all such books and records for at least such period of time and, if
any dispute between the parties has arisen and remains unresolved at the expiration of such
period of time, for such further period of time until the resolution of such dispute.
-4-
H:\154\BEACHAGM.DOC
14. Cooperation. Emeroencie~. Concessionaire agrees to use its reasonable efforts
to cooperate with the City in the conduct of surveys, to provide reports of visitor contacts, and to
respond to City inquiries about public usage of concession services.
The City agrees to provide Conc'3ssionaire with advance notice of any Special Event to
be conducted by the City or a party oth3r than Concessionaire within the Concession Area, in
writing at least five (5) calendar days ~rior to any such Special Event, and to coordinate with
Concessionaire regarding same.
Concessionaire agrees to cooperate with the City in the event of any emergencies,
particularly in the case of any hurricanes or tropical storms, which threaten the City. In the case
of hurricanes and tropical storms, the Concessionaire agrees to remove all beach chairs,
umbrellas, rafts, or other non-motorized personal floatation devices, surfboards, windsailing,
catamarans, and motorized and non-mol:orized personal watercraft, and all other things used in
connection with the Concession Area from the Concession Area within the time required
pursuant to the Rules and Regulations for Beachfront Concession Operations of the City (a
copy of which is attached hereto, and by this reference made part hereof), as the same may be
amended from time to time, and any successor rules or regulations, after being advised to do
so, either orally or in writing, by the City.
15. Emplovees: Manaoers: Hours of Operation. Concessionaire shall employ people
to work at the Concession Area W10 are neat, clean, well-groomed and courteous.
Concessionaire and any persons employed by Concessionaire, shall never have been convicted
of any offense involving moral turpitude or felony. Concessionaire shall have an experienced
manager or managers overseeing the concession operations at all times. Concessionaire from
time to time shall determine hours of operation in accordance with the needs of the Hotel, in
compliance with all City rules and regulations.
16. No Improper Use: Applicable Laws to be Followed. Concessionaire will not use,
nor suffer or permit any person to use in any manner whatsoever, the assigned concession
Facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any
federal, state, county, or municipal ordinance, rule, order or regulation, or of any governmental
rule or regulation now in effect or hereafter enacted or adopted. Concessionaire agrees to
operate and maintain the concession in compliance with this Agreement and ,in accordance with
applicable laws.
17. Notices. Any notice or demand required to be given herein shall be made in
writing and sent by certified or registered mail, return receipt requested, or overnight courier to
the address of the respective parties set "orth below:
If to the City:
The City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
If to Concessionaire:
MB Redevelopment, Inc.
667 Madison Avenue, 8th Floor
New York, New York 10021-8087
Attention: Corporate Secretary
- 5 -
H:\154\BEACHAGM.DOC
With a copy to the Hotel:
Loews Miami Beach Hotel
605 Lincoln Road, Suite 300
Miami Beach, Florida 33139
Attention: General Manager
The City or Concessionaire may from time to time designate any other address for this
purpose by written notice to the other party.
18. Not a Lease. It is expressly understood and agreed that no part, parcel, building,
structure, equipment or space is leased to Concessionaire pursuant to this Agreement; that
Concessionaire is a concessionaire and not a lessee pursuant to this Agreement; that
Concessionaire's right to operate the concession shall continue only so long as the concession
operation complies with the undertakings, provisions, agreements, stipulations and conditions of
this Agreement.
19. No Partnership. Nothin!~ herein contained shall create or be construed as
creating a co-partnership between the City and Concessionaire or to constitute Concessionaire
as an agent of the City.
20. Default and Termination. Concessionaire may be deemed in default under this
Agreement if Concessionaire fails to comply with a material term or condition hereof and if such
breach is not cured within thirty (30) days after written notice is given to Concessionaire
specifying the nature of the default (unless the default is of such nature as cannot be reasonably
cured within such thirty-day period [but is otherwise susceptible to cure]), in which event
Concessionaire shall not be deemed to be in default provided Concessionaire commences to
cure the breach within thirty (30) days following the City's written notice thereof and diligently
pursues such cure to completion). In tlhe event of a default by Concessionaire following the
expiration of the applicable grace period, the City may cancel this Agreement upon a further
written notice to Concessionaire specifying a termination date ("Termination Date"), which shall
be a date at least fifteen (15) days following the date of the City's notice and (unless the default
is cured within such further notice period), this Agreement shall end as of the Termination Date
as if it were the expiration date originally set forth herein, Tenant shall vacate the Concession
Area, and neither party shall have any further obligation to the other.
21. No Discrimination. Concessionaire agrees that there shall be no discrimination
as to race, sex, color, creed or national origin in the operations referred to by this Agreement;
and further, there shall be no discrimination regarding any use, service, maintenance, or
operation of the Concession Area. All Facilities located on the Concession Area shall be made
available to the public, subject to the right of Concessionaire to establish and enforce rules and
regulations to provide for the safety, orde!rly operation and security of the Facilities.'
22. BiodeQradable Container!:!. The sale of beverages from cans, bottles or plastic
containers is not permitted. Beveragl~s must only be dispensed in paper cups or other
biodegradable containers, in accordance with applicable State and County requirements. The
use of plastic straws is also prohibited.
23. Florida Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
-6-
H:\ 154\BEACHAGM.DOC
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year first above written.
ATTEST:
Jq~~ r~
City Clerk
By:
Name:
Title:
~e.6r{'tJ 12o(JRI60G/;;
(' / l1f h AII!,f-Ge12-.
Witnesses:
By:
Name:
Title:
~x/'o~.
~~~~~~
APPROVED AS TO FORM:
(Corporate Seal)
LEGAL DEPARTMENT
APPROVED AS TO
FORM & LANGUAGE
& FOR EXecUTION
,~-f"l4fl'
~ City Attorney Date
- 7 -
H:\ 154\BEACHAGM.DOC
{Ca'
-"'
.-
-
City of Miami Beach
RULES AND REGUlATIONS
FOR BEACHFRONTCONCESSION OPERATIONS
The City of Miami Beach has established policies and procedures concerniDg the management
audoperationof beachfront coucessiObs. . The foUowingrules and regulations sllall apply to
all beachfront conces.sionoperators.
1. If the concession includes food and bev~rage service, then atleastone supervisory employee
must possess a Food Service Management Certification issued by a County Public Health
. Department in. Florida.. In addition, each food service unit,. cart or facility must be licensed
by the Florida Department ofBusin.ess and Professional Regulation- Division of Hotels and
Restaurants [8405 N.W.53rd $creet,Miami, Florida; Telephone No. (305) 47(}"5680].
2. No food and beverage concession will be permitted from mobile units'in the area of the
boardwalk (21st Street - 68th Street); but only for concessions which are operated from
"chickee huts'" shade structures and outdoor cafes as outlined in the Miami Beach Zoning
Ordinance (Section 18,2, E.3), as amended.
3. The Concessionaire sha1.l provide, at its sole expense, at least two (2) 1IaShreceptacleswithin
the confines of the area approved for its.useand for the use of the public. Disposal of the
contents of said receptacles and removal of any 1Dsh or debris within the approved area,
shall be done on a daily basis, and shall be the sole responsibility of the Concessionaire.
4. The Concessionaire must provide the. City written authorization from the upland Owner (see
page 12), allowing the Concessionaire to operate behind the upland owner's property. Said
authorization must contain the name, title, aDd signature of an authorized representative
of the upland owner,andmust be Dotarized. The Concessionaire's application will not be
considered until said authorization is presented to the City's Asset Manager~ A new
authorization fonn from the upland owner is required in order to be eligible for renewal of
the Occupational License each year.
5. .The Concessionaire agrees to abide: byatl City, County,and State laws with regards to. the
use of the beachfront areaS., as amc:nded, or adopted hereafter, The authorization to operate
a beachfront concession may be suspended at any time by written notice from the City
Manager. The Concession authorization may be revoked upon ten (lOJ days written notice
from the City Manager. Su~h suspension may be subject to an administrative
hearing/review.
(Rev, 9/'/38)
P:\DJ)BI'\$Jl.:I:.I.\.uSBT\a~\pIUVUB\APP:r.;rCAT.PlCQ
RULES AND REGULATIONS
FOR BEACHFRONfCONCESSION OPERATIONS
1998/1999 FISCAL YEAR
6. There is no responsibility on behalf oime . City of Miami Beach for any lost, stolen or
damaged property belonging to thc~ Concessionaire. .
7. Tbe Concessionaire must prepare a.wrltten evacuation plan for the prompt removal of all
mobile unit$ used in the concession operations from the beach.front within one (1) hQw- of
notification by appropriate City authorities. This plan must be submitted to tbe City for
approval (seepage 10). An operation plan must also be.s\lbmitted (see page 9).
8. There shall be no overnight storage of any kind east of the dune line on the beach, except for
the foUowing:
a) Beach chairs will be permitted to remain on the sand overnight, as long as they are
in good condition, neatly sta.cked (a maximum of 10 c;hairs per stack for plastic. and
4 chairs per stack for wood.), and ammged side by side adjacent to the concession
stand.
b.) Concession Kiosksl willbe~illowed to remainOD the beach, as long as they are well
maintained ap.dkept westoJt the lifeguard stands.
Yiolatorswil1 have their concessions closed and the City shaJJhave the right to confiscate
any and all equipment left on the beach overnight.
9. The.. City of Miami Beach retains the authority to determine the number of employees
required for each concession.
10. Concessionaire will conduct its operations so as to maintain reasonable quiet and make no
. public disturbances. Hawking to attract attentioD, and/or suxnmoning or accosting any
person, is prohibited. The playing of any music) or allowing any other activity, that disturbs
the public is prohibited.
11. Vehicles are only allowed in areas where roadways are provided, and may onlypark.only in
areas designated for vehicle parking. Concessionaire's vehicles shall only be allowed on the
be~ont for puzposes of supplying the concession's operations, and to remove equipment
at the close of operations each day, and must be removed from the beachfront immediately
.. thereafter.
12. ConcessionaUe.will.be responsible for any damage caused to any City..owned property or
the beachfront during the time of its usage of said area.
13. For any event.at wIDcha larger than ordinary attendance is expected, the Concessionaire
must inform the City of Miami Beach Police Department of expected attendance and comply
with Poliee supervision requirements.
(R.ev. 9/41/98)
.:\DDBP\SALL\ASS2T\DEACBPRN\PRIVArs\APP~ICAT.PKa
RtJI.ES AND REGULATIONS
FOR BEACHFRO~rrCONCESSION OPERATIONS
.1998/1999 FISCAL YEAR
14. All Concessionaires and their employees shall wear CityofMiarni Beach or City approved
identification badges-and mustcolinport theJ:l1Selves in a professional and courteous manner,
at all times during hours of opera1ion.
IS. The sale of beverages from cans, bottles,. or plastic containers are not permitted. Beverages
must only .be dispensed in paper Cl,;lpS or other biodegradable containers, in accordance with
applicable State and Countyrequirernents. The use of plastic straws is also prohibited.
16. The concession facility, including any structures, buildings, vehjc1es~trailers, pushcarts,
stands, and the concession furniShings and equipment shall be neat, clean, and well
maintained at all times. The concc:ssion operation must be aestheticallypleasing and non-
detrimental to the $UlI'oundin~ en'IJironment.
17. The following regulations specifically apply to Concessionaires offering Water Recreational
Equipment:
A. All propeller craft must have propeller guards.
~. All operations thatinvolve the use of water craft must have a "chaseboat" available
readi1yavailable.The"c~ie boat"is subjecttothe approval of the City.
c. The operation ofall water sport activity shall be conducted outside the 300 foot
swimIning area ("gwu:ded a:l'ea'i) and no closer than. 400 feet of my lifeguard stand.
The location ofbeachfrontoperations sball be subject to the approval of appropriate
City Departments. The Concessionaire must instruct all users as to all safety
precautions, inc:luding avoidance of swimalers. and bathers.
D. All concessionactivities,includini the placement and/or use of umbrellas, cabanas,
sailboat, .etc., sball not obstruct the view of a lifeguard. Any request from a lifeguard
to relocate any item thatobS1ructs hi.sIher view shall be treated as an emergency and
be relocated immediately.
a. Concessionaires are responsible for instructing clients on safe operation of equipment
including advisement to stay away from all "guarded areas. "
F. The "guarded area" ex:tends 300 feet east of the shoreline,and 100 feet from the
nearest bather or swimmer.
G. . The Concessionaire must identify a channel to be used as an access route ~ugh
which usenofwater recreati"nalequipment may leave the~hfront and enter open
water. . Said. channel shall e)ctend 300 feet east, and perpendicular to . the shore line
and be marked by removable orange colored buoys which shall be a minimum of
(a..v. 9/-I/J8)
.:\DDHP\$ALL\ASSET\8EACKPR5\PRrvAr.B\~~PtICAr.PX~
. RULES AND REGUlATIONS
FOR BEACHFRONTCONCESSIOl't OPERAnONS
1998/1.999 FISCAL YEAR
eighteen (18) inches in di,l1i1eter. .There shall be a minimum of four (4) buoys on
each side of the channel, equally spaced.
H. Watercraft shalll10t exceeci"idle speed" within the channeL
1. Wearing a life jacket is rc:quiredfor all water activities (i.e. "hobie cat.s", "wave
runners", "para-sailing", etc).
J - Concessionaire shall prohibit anyone under the age of 16, to rent, or USe any powered
or sailing watercraft.
K. Para-sailing shall be eonduc:ted only from . winch boats beyond the designated swim
areas.
L. Concessionaire shall supply all users ofwaterrecreatiooalequipment with life
jackets. in appropriate.siz.es.
M. All watercraft equipment shall meet the registration and license requiremeDts of the
State of Florida..
N. All power equipment shall b= equipped with approved kill switches in working order.
O. Fueling is allowed on the belCh under tb.efollowing conditions 00: signs must be
posted where the gasoline is kept; cans which are spill-proof must be used; citizens,
tourists, and the general pubHc.must be kept a safe distance from where the fueling
process is taking place.
. P. A11y change or addition to an. concession operation requires review. and written
authorization by the City of Miami Beach.
Q. All water sports conc~ssio[U~ must be approved by the City's Marine Authority am1
by the City Manager or his designee.
18. Any transport vehicles operated on the beachfront shall not exceed 10 m.p.h. andshaU only
operate in the immediate vicinity of lhe concession or to-md..from the nearest access ramp.
After transporting equipm.ent to the c:oncession $ite,. the vehicles shall be. removed from the
beachfront area and parked in a legally authorized location. Driving on the beachfront area
shall be kept to a minimum.
19. A Food Service license issued by the Florida Department of Business Regulation - DiVIsion
of Hotels and Restaurants for the food service unit must be supplied by the Applicant before
a City Occupational License for a Food and Beverage Beachfront Concession may be issued.
(Rev. 9/4/9$)
l':\DD:Q\$At.L\ASSBT\BBAc:IIPRlr\PRIVA.'1'J:\AletPr.:rCM'.PJl:G
RUl.Es .ANDREGULA.nONS
FOR BEACHFRONrCONCESSIONOPERATIONS
. '199811!}99FISCALYEAR .
20. A City of Miami Beach OccupatiOtl:al License (valid from October 1, through September 30,
of each year) is required for eae;hactivity which the Concessionaire operates on the
beachfront ( Example: a concessi,onaire providing food and beverage, and water sports
activities, mustobtainm.q Occupational Licenses).
THE ISSUANCE OF AN OCCUPATIONAL LICENSE BY THE CITY IS
CONDITIONED UPON COMPl,IANCE WITH THE RULES AND REGULATIONS
CONTAINED HEREIN. SAID OCCUPATIONAL LICENSE SHALL BE
CONSIDERED NULL AND VOID IF TIlE CITY WITHDRAWS, DISCONTINUES,
OR OTHERWISE REVOKES THE AUTHORIZAnONGRANTED TO THE
CONCESSIONAIRE TO OPERATEA BEACH FRONT CONCESSION.
21. The ConcessionairemustmaintaiJ:J. the required insurance coverage,described on the
following page, at all times.
22. .The City. reserves the right to. issue . additional. Rules and Regulations for ..Beachfront
Concession Operations. Said additiclnsshallbe binding on all beacbfront Concessionaires.
23. the . City reserves the right to re"ok~ a Con~essionaire's authorization, and.. Occupational
License(s)due to non-compliance with the Rules and Reaulations herein specified.
24. . Anyone found operating a concession prior to meeting all of the requireme.ntsoutlined in the
Rules and Regulations,andloroperating without the appropriate licenses and approvals, will
be removed from the beach and will not be allowed to fe-apply.
(ll.v. '/4/98)
F;\DDBP\$AJ:..L\ASSE'r\B1W:BJ'U'\!RIVA'rE\U~:r.I~.l'J:G
RULES AND REGULATIONS
FOR BEACHFRONI' CONCESSION OPERATIONS
1998/1S~99. FISCAL n:AR
INSURAN(~E REQUIREMENTS
The. Concessionaire shall carry and mainrain in full force . and effect, at all.times during its operation,
the following insurance coverage.
L Comprehensive General Liability in the minimum amount offive hundred thousand dollars
($500,000)1 per OCCUl'rence for bodily injury and property. dama.ge. This policy must also
contain. coverage for premises,opexations, products, and. contractual liability .
2. The City mustbe named ssan addilionaUnsured on.thepolicies required above.
3 . Workers' Compensation and Employers' liability to meet the statutory requirements of the
State of Florida.
4. The City shall receive thirty (30) days advance written notice of cancellation or changes of
. the above-mentioned policies.
S. All insurance policies shall be issued by companies authorized to do. business under the. laws
of the State of Florida and must have a rating ofB+: VI or better per A.M. Best's Key Rating
Guide, latest edition.
6. The Concessionaire shall:fumish original Certificates oflnsunmce, evidencing the required
coverage, and receive . approval of same. prior to the commencement of operations.
7. Certificates of Insurance must be approved by the Ci1y's Risk Manager before start up of
operations.
1 A minimum coverage of onemilliondol1a~8 ($1,000,000) is
required. 1:02:' water SP01:'t.8 operation..
(Rev, 9/'/.98)
]1': \ Dx:lKP \ $ALL \ASSB'r\BJW::BlP1Uf\PlUVArB\AI'PLICA'1' ..1'EQ