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Grant of Easement W/ ESSEX HOUSE COLLINS, LP dol 9-3/0 7 This instrument prepared by and after recording return to: Alexander I.Tachmes, Esq Shutts&Bowen, LLP 200 South Biscayne Blvd.,Suite 4100 Miami, FL 33131 (For Recorder's Use Only) GRANT OF EASEMENT FOR AIR RIGHTS This Grant ofasement for Air Rights (the "Easement") is made and entered into as of this Jy day of 4#4ar , 2020 by the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation duly organized nd existing under the laws of the State of Florida, having an address at 1700 Convention Center Drive, Miami Beach, Florida 33139 ("Grantor"), in favor of ESSEX HOUSE COLLINS, LP, a Delaware limited partnership having an address at do Jesta Management Corp., 755 Rue Berri, Suite 200, Montreal, Quebec, Canada H27 3E5 ("Grantee"). RECITALS A. Grantee is the fee owner of the Essex House (1001 and 1021 Collins Avenue), the legal description of which is attached hereto as Exhibit "A," and an affiliate, Clevelander Holdings, LP, a Delaware limited partnership (the "Clevelander"), is the owner of the Clevelander Hotel (1020 Ocean Drive), the legal description of which is attached hereto as Exhibit"B" (collectively, the "Hotel Property"). B. The right-of way of Ocean Court located between the Clevelander Hotel and the Essex House, as depicted in Exhibit"C"attached hereto and made a part hereof,was dedicated by plat to Grantor as a public right of way, and this dedication also includes the air rights over the Ocean Court right-of-way(the"Ocean Court Right of Waw'). C. The City's Historic Preservation Board ("HPB"), pursuant to HPB Order No.19-0315, a copy of which is attached hereto and made a part hereof as Exhibit "D", approved the installation by Grantee of an elevated pedestrian bridge to connect.the Clevelander Hotel and Essex House at approximately the fourth floor level, and which pedestrian bridge is approximately six (6)feet in width, twenty (20)feet in length, fourteen (14)feet in height (for a total of approximately 1,680 cubic feet of air space), and located a minimum of thirty- six (36) feet above the grade surface of a portion of the Ocean Court Right of Way (the "Pedestrian Bridge"). The use of the term "Pedestrian Bridge" in this Easement shall include the associated improvements, equipment, and infrastructure, including, without limitation, electrical and utility connections, lighting, and fire sprinkler systems, necessary for the proper permitting and operation of the Pedestrian Bridge. The Pedestrian Bridge shall not impede vehicular access through the Ocean Court Right of Way. D. Grantor has agreed to gr:nt an easement to Grantee, for the use of all of Grantor's air rights within that volume If space above a portion of the Ocean Court Right of Way, as legally described in Exhi,.it "E" attached hereto and made a part hereof ("Easement Area"),for the sole purpose of the construction,operation and use of the Pedestrian Bridge within the Easement Area, subject to the terms and conditions set forth herein. NOW, THEREFORE, in qonsideration of the sum of Ten Dollars ($10.00)and other good and valuable consideration, the eeceipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The above recitals are true and correct and by this reference are incorporated as if fully set forth herein. 2. Easement. Subject to the terms and conditions of this Easement, Grantor hereby grants, bargains and conveys to rantee, for the use and benefit of Grantee and, its successors and assigns and its age ts, employees and invitees (including, without limitation, the Clevelander)a perpetual, -xclusive easement in, through, over and across the Easement Area, for the Grantee' construction, operation, use, maintenance, repair, and replacement of the Pede.trian Bridge, along with a non-exclusive right of ingress and egress over and across th portions of the Ocean Court Right of Way necessary to access the Easement Area for t e construction and maintenance of the Pedestrian Bridge, as provided herein. Granto also hereby authorizes Grantee to construct the Pedestrian Bridge provided that itis c•nsistent with the HPB approval of same. Grantee shall exercise its easement rights hereu der without obstructing or interfering with the continued use of • the Ocean Court Right of ay by Grantor and/or the public as a dedicated public right of way for pedestrian and ve icular travel, and utility services, except as permitted pursuant to a temporary right-of-w-.y closure permit for any construction, repair or maintenance activities that obstruct the Ocean Court Right of Way or otherwise require temporary closure of any portion the -of. 3. Consideration. As consid ration and inducement for Grantor's grant of this Easement, Grantee shall pay to Gr.:ntor the amount of $240,000 ("Contribution") to be paid in installments as follows: (1 :$80,000 upon application for a building permit to construct the Pedestrian Bridge; (2) $81,000 upon issuance of a building permit for the construction of the Pedestrian Bridge; an o (3) $80,000 upon the issuance of a Certificate of Occupancy for the Pedestrian Bridge. 4. Construction and Mainte ance of the Pedestrian Bridge. Grantee agrees to develop, design, permit, construct use, operate, maintain, repair and replace the Pedestrian Bridge, or necessary porti•ns thereof, so that same is at all times in good working order and condition and free of aterial defects, subject only to occasional interruption of service due to(i)ordinary wear an tear and use thereof; (ii)routine or extraordinary maintenance, repair or replacement; or 'Hi) events beyond the Grantee's reasonable control. Grantee shall have the right to sel:ct the contractor(s) of its choice in connection with all aspects of installation or construction, maintenance, repair, and replacement of the Pedestrian Bridge; provided, howeve , that the contractor(s) shall be subject to prior approval of Grantor, which approval .hall not be unreasonably withheld so long as the work is performed by contractor(•) with prior experience performing similar projects, with the requisite licenses to pe •rm the work, and sufficient bonding capacity to obtain a performance and paymen bond covering the value of such work. A. Grantee shall cause for plans and specifications to be prepared for any construction work related to the installation of the Pedestrian Bridge,and shall be solely responsible for obtaining any and all governmental permits and approvals required in connection with the Pedestrian Bridge (collectively, the "Permits"). B. After completion of any work by Grantee, Grantee shall, at its sole cost and expense, immediately,with due diligence, restore the roadway surface of the Ocean Court Right of Way to the condition in which it existed immediately prior to the performance of such work(the cost of which shall be included in Operating Costs). C. Grantee shall assume the responsibility, at its sole cost and expense, to maintain the Pedestrian Bridge in a good and safe condition and to repair and/or replace same as necessary from time to time, all in accordance with the Permits and any and applicable regulations of the federal, state, County, City of Miami Beach Code of Ordinances, and any other regulation governing the Pedestrian Bridge. D. Grantee shall be solely responsible for, and shall bear any and all costs and expenses of, installation, maintenance, utilities, taxes (including, without limitation, any ad valorem or other taxes or governmental charges that may be assessed in connection with this Easement and the Pedestrian Bridge), insurance, repairs, and replacement or restoration work(including, without limitation, any replacement or restoration in the event of any casualty or as otherwise required in the normal and customary operation of the Pedestrian Bridge), and any and all other costs and expenses, including any necessary relocation or undergrounding of existing utilities in conflict with the Pedestrian Bridge, or any damage to the Ocean Court Right of Way in connection with the Grantee's installation, operation and use of the Pedestrian Bridge (the"Operating Costs"). E. Grantee assumes all risks in connection with the construction, operation or use of the Pedestrian Bridge, at its sole cost and expense. The Grantor disclaims any and all implied warranties of merchantability and fitness, fitness for a particular purpose, intended use, workmanship or construction respecting the use of the Easement Area or the construction, operation or use of the Pedestrian Bridge. Grantor, and its successors and assigns, shall have no obligations with respect to the operation, use, maintenance, repair, replacement or restoration Pedestrian Bridge, except to the limited extent provided in Section 5.A of this Easement and to the extent caused by the gross negligence or willful misconduct of Grantor and/or its representatives. F. Grantee shall, at all times, exercise diligent, good-faith efforts to: (a) avoid causing any damage to or unreasonable interference with the Ocean Court Right of Way; and (b) minimize any disruption or inconvenience to Grantor and the public in the use of the Ocean Court Right of Way as a dedicated public right of way. 5. Grantor's Continued Use and Maintenance of the Ocean Court Right of Way. Except with respect to the Grantee's exclusive rights over the Easement Area, the Grantor reserves unto itself, and its successors, assigns, and its authorized invitees, agents, employees, contractors, and licensees, and without the need for any notice to Grantee, the perpetual right and privilege to (i) use the Ocean Court Right of Way for the purposes of providing the general public with an unrestricted right of passage, ingress, egress, access to, and reasonable use of the Ocean Court Right of Way; (ii) maintain, repair and eplace, and/or install improvements within the Ocean Court Right of Way, includi .g surface or subsurface improvements, as Grantor may deem necessary from time I. time, at its sole and absolute discretion; and (iii) grant third- parties providing utilit, services with the right to use and occupy the Ocean Court Right of Way for the .ole purpose of providing any such utilities, including, but not limited, to water, sew,-r, stormwater, electrical, gas, telecommunications, telephone and cable, at Grantor'. sole and absolute discretion. A. If the Pedestri.,n Bridge is damaged during any maintenance, repair or other work performe by Grantor or its employees, agents or contractors within the Ocean Court ight of Way, the Grantor shall work with the Grantee to make all necessary epairs to the Pedestrian Bridge, at Grantor's sole cost and expense. Notwithstanding anything to the contrary herein, Grantor's issuance, in it-. regulatory capacity, of any right of way or other permit to a third-party(su•h as utility providers), shall not be construed as an assumption of any liability or the acts or omissions of that third-party, and Grantor shall not be respon-ible for the acts or omissions of third-parties not contracted by Grantor(such :s utility providers). B. Notwithstandin! anything herein contained to the contrary, this Section 5 shall not be constru-d or deemed to relieve Grantee of its obligations, to maintain, repair, replace and/or restore the Pedestrian Bridge. 6. Payment Covenants. Gr-ntee shall be responsible for any and all Operating Costs of the Pedestrian Bridge. 7. Term. The term of this E-sement shall not commence and shall be of no force or effect unless and until Grantee •ubmits its application for a building permit for the construction of the Pedestrian Bridge, =nd once in effect, shall be perpetual unless terminated upon mutual agreement of the p:dies, in writing. This Easement shall not merge with any deed to the Hotel Property or a y part thereof, and shall survive for the term described herein. For the avoidance of doub I,the decision to proceed with the construction of the Pedestrian Bridge is within the Gran gee's sole discretion. In the event that Grantee elects not to proceed, this Easement s all be of no force or effect and the obligations herein, including the Contribution, shall be oid. Subsequent to the construction of the Pedestrian Bridge, Grantee shall have the rig t to demolish and remove the Pedestrian Bridge, provided that all required permits and :pprovals are obtained from the City. In the event that the Pedestrian Bridge is removed, this Easement shall automatically terminate, and the parties agree to promptly execute a written release of the Easement and record said release in the Public Reco ds of Miami-Dade County, Florida. 8. Successors and Assigns. his Easement shall bind, and the benefit thereof shall inure to the respective successors and assigns of the parties hereto. Any transferee of the Hotel Property, or any portion th-reof, shall automatically be deemed, by acceptance of the title thereto, to be subject to all of the terms of this Easement. 9. Limitation. It is the intent.n of the parties hereto that this Easement shall be limited to and utilized for the purpos:s expressed herein and only for the benefit of the persons and properties named herein. he roadway surface of the Ocean Court Right of Way shall continue to be used for appropriate pedestrian and vehicular access and activity, except as necessary during tim=s of installation, maintenance, repair or replacement of the Pedestrian Bridge by Grantee, or maintenance, repair or replacement of the Ocean Court Right of Way or utilities located therein. Grantor shall not be responsible for the acts or omissions of third-partiesnot contracted by Grantor who may cause damage to the Pedestrian Bridge. Although Grantee may perform maintenance activities, Grantee shall be required to obtain a temporary right-of-way closure permit, if any of its maintenance activities obstruct the Ocean Court Right of Way, or otherwise requires temporary closure of the Ocean Court Right of Way due to such maintenance actions. 10. Indemnification. A. Grantee shall indemnify, defend and hold harmless Grantor, its officers and employees, from any costs, liabilities, claims, losses, and damages (including, without limitation, reasonable attorneys'fees and disbursements at the trial level and all levels of appeal), whether suit is instituted or not, relating to death of or injury to persons, or loss of or damage to property, arising out of, or incurred in connection with, this Easement, or with the use and/or operation of the Easement Area or Pedestrian Bridge by Grantee,and/or its officials employees,contractors,and agents; and including, but not limited to, any violation by the Grantee, and/or its officials, employees, contractors, and agents, of any laws, rules, regulations or ordinances regarding hazardous materials, hazardous wastes, hazardous substances, solid waste, or pollution, whether now existing or hereafter enacted or promulgated, as they may be amended from time to time ("Environmental Laws"); any presence, release, or threat of release of hazardous materials, hazardous wastes, hazardous substances, solid waste or pollution at, upon, under, from or within the Easement Area by Grantee, and/or its officials, employees, contractors; and agents; the failure of Grantee, and/or its officials, employees, contractors, and agents, to duly perform any obligations or any clean-up required to be taken by Grantee under any Environmental Laws;; liability for personal injury or property damage,; and any fines, penalties, and punitive damages, or any fines or assessments incurred by or claimed against Grantor and arising out of the failure of Grantee, and/or its officials, employees, contractors, and agents, to comply with Environmental Laws in connection with the use of the Easement by Grantee, and/or its officers, employees, contractors, and agents. For the avoidance of doubt, the liability in this Section 10 as to Environmental Laws shall not apply to Grantee unless the liability is caused by the actions of Grantee and/or its officials, employees, contractors, and agents. B. Grantee shall also, as part of the indemnification provided to Grantor pursuant to this Section 10, defend any and all claims asserted against Grantor resulting from, arising out of, or incurred in connection with the existence and/or use of the Easement and the Easement Area or Pedestrian Bridge by Grantee, and/or its officials, employees, contractors, and agents. Grantee shall be entitled to select counsel of Grantee's choice to defend claim; provided however, that such counsel shall first be approved by Grantor's City Attorney, which approval shall not be unreasonably conditioned, withheld, or delayed; and, provided further, that the Grantor shall be permitted, at its cost and expense, to retain independent counsel to monitor the claim proceeding. The duty to defend set forth in this subsection shall be severable and independent from the indemnity obligations otherwise set forth in this Section 10, to the extent that if any other provisions and/or subsections of this Section 10 are deemed to be invalid and/or unreasonable, this duty to defend provision shall remain in full force and effect. C. Notwithstanding an hing contained in Section 10 to the contrary, Grantee shall not be obligated or lia•le to Grantor, or any third parties, for any costs, liabilities, expenses, losses, cl=ims or damages,with respect to claims resulting from the gross negligence, reckles-ness or willful misconduct of Grantor or its officials, employees, contractors, and ag:nts. D. The indemnity and •efense obligations set forth in this Section 10 including, without limitation, the provis ons of its subsections, shall survive the expiration of the Term or any termination •f this Easement regarding any and all costs, liabilities, claims, losses, and damage s (including, without limitation, reasonable attorneys' fees and disbursements at th- trial level and all levels of appeal), whether suit is instituted or not, relating to dea h of or injury to persons, or loss of or damage to property, resulting from, arisin• out of, or incurred in connection with the existence and use of the Easement and t e Easement Area by Grantee and/or its officials, employees, contractors, and/or agents during the term of the Easement. For purposes of example only and ithout limiting the generality of the foregoing, costs, liabilities, claims, losses and/•r damages which are unknown or unaccrued as of the date of the expiration of th- Term or other Termination of the Easement could include, without limitation, I.:tent construction defects and/or environmental remediation claims. 11. Insurance. Grantee sh-:Il maintain insurance sufficient to cover Grantee's liability exposure with respect to construction, use or operation of the Pedestrian Bridge,which insurance shall include ommercial General Liability Insurance, including Products- Completed Operations and Contractual Liability, in an amount not less than $1,000,000 combined si gle limit per occurrence, and $2,000,000 in the aggregate, for bodily injury and prop-rty damage, and Workmen's Compensation as required by law. Grantee shall na e the Grantor as an additional named insured on the Certificates of Insuranc- for Commercial General Liability Insurance, and upon request of the Grantor, s all provide City with a certificate of insurance evidencing the foregoing coverages. 12. Default. A. Default by Grantee. In the event of a default by Grantee in the maintenance, operation or repair if the Pedestrian Bridge, Grantor shall give written notice to Grantee, specifying 'he nature of such default. Grantee shall have a period of thirty (30) days following eceipt of said notice in which to remedy the default (or such longer time as may be necessary and reasonable, provided Grantee shall have commenced a cure within said 30-day period and is diligently and continuously prosecuting same); ailing which Grantor shall have the right to enter upon the Easement Area, fo the limited purpose of effecting the required repair or maintenance of the ''edestrian Bridge. Notwithstanding the foregoing, if the default is of such a nature hat an emergency situation arises constituting an unsafe or unsanitary condition the period for cure of such default shall be accelerated to a period of time which 's reasonable in light of the nature of the emergency. All costs incident to curing a •efault by the Grantee under this subsection A shall be the sole responsibility and ob igation of, and accordingly, shall be borne by, the Grantee. B. Default by Grantor. In the event of a default by Grantor, Grantee shall give written notice to Gra tor, specifying the nature of such default. Grantor shall have a period of thirty (30) days following receipt of said notice in which to remedy the default (or such longer time as may be necessary and reasonable, provided Grantor shall have commenced a cure within said 30-day period and is diligently prosecuting same), failing which Grantee shall have the right to effectuate the required repair of the Pedestrian Bridge. Notwithstanding the foregoing, if the default is of such a nature that an emergency situation arises constituting an unsafe or unsanitary condition, the period for cure of such default shall be accelerated to be a period of time which is reasonable in light of the nature of the emergency. All costs incident to repair of the Pedestrian Bridge shall be borne by the Grantor. 13. Inspection. Grantor's employees or representatives shall have the right to enter and investigate the Easement Area at any time, to verify compliance with the conditions of this Easement or any applicable laws. 14. No Liens. Grantee shall not cause liens of any kind to be placed against the Easement Area or any portion thereof. The right, title and interest of the Grantor in the Easement Area shall not be subject to liens or claims of liens for improvements made by Grantee. Nothing contained in this Easement shall be deemed or construed to constitute the consent or request of the Grantor, express or by implication or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any -materials for any specific improvement of, alteration to, or repair of the Pedestrian Bridge, or any part thereof, nor as giving Grantee, any mortgagee or lessee of the Grantee or Hotel Property any right, power or authority to contract for, or permit the rendering of, any services or the furnishing of materials that would give rise to the filing of any lien, mortgage or other encumbrance against Grantor's interest in the Easement Area, or any part thereof, or against assets of the Grantor. In the event Grantee fails to remove any lien or desires to contest any lien placed against the Easement Area or any portion thereof, Grantee shall indemnify, defend and hold harmless the Grantor against all loss, expense or damages in connection therewith, in accordance with Section 10 of this Easement. Notwithstanding the foregoing, Grantee's rights under this Easement may be part of the collateral for any mortgage encumbering the Essex House. 15. Enforcement. In the event it becomes necessary for any party to defend or institute legal proceedings as a result of the material failure of either party to comply with the terms, covenants and conditions of this Easement, the prevailing party in such litigation shall recover from the other party all costs and expenses incurred or expended in connection therewith, including, without limitation, reasonable attorney's fees and costs, at all levels. 16. Venue and Jurisdiction: WAIVER OF JURY TRIAL. This Easement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms and conditions herein, exclusive venue for the enforcement of same shall be Miami-Dade County, Florida. This Easement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Easement Agreement shall be Miami Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS EASEMENT, GRANTOR AND GRANTEE EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS EASEMENT. 17. No Joint Venture. Nothin in this Easement shall be construed to create a joint venture, partnership, tenancy in co mon, or joint tenancy relationship between the Grantor and the Grantee, nor shall this Eas-ment render either party liable for the debts or obligations of the other party. 18. Interpretation. No provisio of this Easement will be interpreted in favor of, or against, any of the parties hereto by •eason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any pr or draft hereof or thereof. 19. Counterparts. This Ease ent may be executed inany number of counterparts, each of which shall be deemed an •riginal and all of which,taken together,shall constitute a single document. 20. Notices. Any notices req ired or permitted to be given under this Easement shall be in writing and shall be deem-d to have been given if delivered by hand, sent by recognized overnight courier(such as ederal Express)or mailed by certified or registered mail, return receipt requested, in a po•tage prepaid envelope, and addressed as follows: If to Grantee at: Essex House Collins, LP do Jesta Group 755 Rue Berri, Suite 200 Montreal, Quebec, Canada H27 3E5 With a copy to: Alexander I. Tachmes, Esq. Shutts& Bowen, LLP 200 South Biscayne Blvd. Suite, 4100 Miami, FL 33131 If to the Grantor at: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager With a copy to: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Attorney Notices personally delivered or sent by overnight courier, or mailed in accordance with the foregoing shall be deemed given upon receipt. The terms of this Section shall survive the termination of this Easement. 21. Severability. If any clause or provision of this Easement is deemed illegal, invalid or unenforceable under present or future laws effective during the term hereof, then the validity of the remainder of this Easement shall not be affected thereby and shall be legal, valid and enforceable. 22. Entire Agreement; Recordation. This Easement constitutes the entire agreement between the parties hereto relating in any manner to the subject matter of this Easement, and may be recorded by Grantee in the Public Records of Miami-Dade County, Florida, at its sole cost and expense. No prior agreement or understanding pertaining to same shall be valid or of any force or effect. This Easement may not be amended, modified or terminated except by a written instrument executed by the Grantor (through its City Manager) and Grantee, and which is recorded in the Public Records of Miami-Dade County, Florida. All provisions of this Easement, including the benefits and burdens of the same, are covenants that run with the land, are not intended to be executory in nature, and shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, legal representatives, successors and assigns. SIGNATURE PAGES TO FOLLOW IN WITNESS WHEREOF, the parties hereto have executed this Easement as of the date first set forth above. WIT1 S1014j1 GRANTOR: 11 CITY OF MIAMI BEACH, FLORIDA, A municipal cor•, -= e State of Florida NW By: Sig�- Dan Ge •er, Mayor ‘tore(71 Print ► me : c5 A ^IDo 'MCORP ORATED= �•. Sign � '',,-v,?��.�,�`,�g_= 7(,)% 1) e so, Print Name ATTEST: By: 11144 Name: Ra el E. Granado Title: City Clerk STATE OF FLORIDA COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this /y day of Jc rng4ry , 2019, by Dan Gelber, as Mayor, and Rafael E. Granado, as City Clerk, of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of the CITY OF MIAMI BEACH, FLORIDA. They are personally known to me or produced valid Florida driver's licenses as identification. xM•,P"' LILIACARDILLO ;, wcoMMI8ION#GG230433 Notary Public, State of Florida `•• - EXPIRESAugust27.2022 �n .. ' '".,Fp P� Bonded Dm Notary Public Underwriters My commission expires: �/��AcQ FORM I LANGUAGE &FORE iiQN GityAttompf axte ads WITNESSES: GRANTEE Essex House Collins, LP A Delaware limited partnershi la"1 - By: Sign Name: Eric Rin Title: r 6ide.n-l- C ri 5+1(\r S Print Si t T Print Name Prou Ince.. STATE OF be_ ) )ss: Ci-hj COUN-TY OF rr on+reaA ) The foregoing instrument was acknowledged before me this I I +h day of NDUember , 2019, by jri c A;Obi, as Prebidor`{" of Essex House Collins, LP, a Delaware limited partnership. He is personal', known to me per's caase•s-av-idc..a o t ysosv%OF04% " � ������, Comm l&sin-12r Cg 0 5 Fs�bi n 15 5�'i- • ���,� � nny commission expires: g ',�. bQ• DeCe. r 10 19-011 dal €1,t. 6lonsTnicis_4- EXHIBIT"A" [legal description of Essex] Lot 9, 10, and 11, LESS the Northerly one (1)foot of Lot 11, Block 15, of OCEAN BEACH FLORIDA ADDITION NO. 2, A SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, Page 56, of the Public Records of Miami - Dade County, Florida. • I'. • EXHIBIT"B" [legal description of Clevelander] Lots 6, 7 and 8, in Block 15, of OCEAN BEACH FLORIDA ADDITION NO. 2, A SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, Page 56, of the Public Records of Miami-Dade County, Florida. EXHIBIT"C" [legal description of Alley] A 20 FOOT ALLEY LYING WITHIN BLOCK 15 OF OCEAN BEACH FLORIDA ADDITION NO. 2, AS RECORDED IN PLAT BOOK 2, PAGE 56, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, LYING AND BEING IN THAT PORTION OF SECTION 3, TOWNSHIP 54 SOUTH, RANGE 42 EAST, MIAMI- DADE COUNTY, FLORIDA. • CFN:20190667501 BOOK 31660 PAGE 4954 EXHIBIT"D" DATE:10/24/2019 01:06:05 PM HARVEY RUVIN,CLERK OF COURT,MIA-DADE CTY [HPB Order] HISTORIC PRESERVATION BOARD City of Miami Beach, Florida MEETING DATE: October 8, 2019 FILE NO: HPB19-0315 PROPERTY: 1001 and 1021 Collins Avenue APPLICANT: Essex House Collins, LP, LEGAL: Lots 9 thru 11 less the north 1 foot of Lot 11, Block 15, of the Ocean Beach Addition No 2, According to the Plat Thereof, as Recorded in Plat Book 2, Page 56,of the Public Records of Miami-Dade County, Florida. IN RE: The application for a Certificate of Appropriateness for the rehabilitation of the existing building at 1021 Collins Avenue, including substantial demolition, partial reconstruction, the construction of rooftop and ground level additions and a new elevated pedestrian bridge above the Ocean Court alley, one or more waivers, including variances to reduce the minimum size required for hotel units and to reduce the off-street parking requirements. ORDER The City of Miami Beach Historic Preservation Board makes the following FINDINGS OF FACT, based upon the evidence, information, testimony and materials presented at the public hearing and which are part of the record for this matter: I. Certificate of Appropriateness A. The subject site is located within the Ocean Drive/Collins Avenue Local Historic District. B. Based on the plans and documents submitted with the application, testimony and information provided by the applicant, and the reasons set forth in the Planning Department Staff Report, the project as submitted: 1. Is not consistent with Sea Level Rise and Resiliency Review Criteria (1) & (10) in Section 133-50(a)of the Miami Beach Code. 2. Is consistent with the Certificate of Appropriateness Criteria in Section 118-564(a)(1) of the Miami Beach Code. 3. Is not consistent with Certificate of Appropriateness Criteria'a', 'c', 'e' &'h' in Section 118-564(a)(2)of the Miami Beach Code. 4. Is not consistent with Certificate of Appropriateness Criteria 'b', 'd' & 'e' in Section 118-564(a)(3)of the Miami Beach Code. 5. Is consistent with Certificate of Appropriateness Criteria in Section 118-564(f)(4) of the Miami Beach Code. CFN:20190667501 BOOK 31660 PAGE 4955 Page2of7 HPB19-0315 Meeting Date: October 8, 2019 C. The project would be consistent with the criteria and requirements of section 118-564 and 133-50(a) if the foilol ing conditions are met: 1. Revised elevation, site plan and floor plan drawings shall be submitted and, at a minimum, such drawings shall incorporate the following: a. This approval dues not include the construction of a below grade, subterranean or basement level: b. The original Warwick wall sign along Collins Avenue, as seen in the c. 1940 historical photograph, shall be reconstructed and reintroduced inclusive of the "Warwick" copy, in a manner to be reviewed and approved by staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. c. The exterior planter features located at the 3-story portion of the building shall be retained and restored, in a manner to be reviewed and approved by staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. d. The westernmost entry feature shall remain in place and the proposed elevation of the courtyard area shall be further developed in a manner that minimizes the change in elevation between the Collins Avenue sidewalk and the courtyard and retains the historic character of the courtyard to the greatest extent possible while allowing for portions of the courtyard to be elevated to meet all required accessibility requirements for the site, in a manner to be reviewed and approved by staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. e. Final design and details of the proposed exterior stair and ramp railings shall be submitted, in a manner to be reviewed and approved by staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. Exterior railings shall return directly to the ground (no loops) and shall be clear anodized aluminum or powder coated grey or silver. f. Final details of all exterior surface finishes and materials, including samples, shall be submitted, In a manner to be reviewed and approved by staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. 2. A revised landscape plan, prepared by a Professional Landscape Architect, registered in the State of Florida, and corresponding site plan, shall be submitted to and approved by staff. The species type, quantity, dimensions, spacing, location and overall height of all plant material shall be clearly delineated and subject to the review and approval of staff. At a minimum, such plan shall incorporate the following: CFN:20190667501 BOOK 31660 PAGE 4956 Page 3 of 7 HPB19-0315 Meeting Date: October 8, 2019 a. The A fully automatic irrigation system with 100% coverage and an automatic rain sensor in order to render the system inoperative in the event of rain. b. Cool pavement materials or porous pavement materials shall be utilized, in a manner to be reviewed and approved by staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. 3. In accordance with Section 118-395(b)(2) of the City Code, the requirement pertaining to an existing structure's setbacks and parking credits, is hereby waived. 4. In accordance with Section 130-101(d) of the City Code, the requirement pertaining to providing off-street loading spaces is hereby waived, provided that a detailed plan delineating on-street loading is approved by the Parking Department. 5. In accordance with Section 130-32(26) of the City Code, the requirement of .5 parking spaces per unit, up to a maximum of 100 units, for new floor area for hotel rooms, associated with retaining, preserving and restoring a building or structure that is classified as"contributing", is hereby approved. In accordance with Section 118-537, the applicant, the owner(s) of the subject property, the City Manager, Miami Design Preservation League, Dade Heritage Trust, or an affected person may appeal the Board's decision on a Certificate of Appropriateness to a special master appointed by the City Commission. II. Variances) A. The applicant filed an application with the Planning Department for the following variance(s): 1. A variance from the minimum required hotel unit size: 15% of the hotel units shall be between 300-335 s.f. and 85% of units shall be 335 s.f. or larger, in order to permit 45 hotel units of 200 s.f. or larger. 2. A variance to reduce up to 20%(1 parking space)the required number of parking spaces(5)for new hotel units. B. The applicant has submitted plans and documents with the application that satisfy Article 1, Section 2 of the Related Special Acts, allowing the granting of a variance if the Board finds that practical difficulties exist with respect to implementing the proposed project at the subject property. The applicant has submitted plans and documents with the application that also indicate the following, as they relate to the requirements of Section 118-353(d), Miami Beach City Code: That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district; CFN:20190667501 BOOK 31660 PAGE 4957 Page 4 of 7 HPB19-0315 Meeting Date: October 8, 2019 That the special conditions and circumstances do not result from the action of the applicant; That granting the variance requested will not confer on the applicant any special privilege that is denied by this Ordinance to other lands, buildings, or structures in the same zoning district; That literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this Ordinance and would work unnecessary and undue hardship on the applicant; That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure; That the granting of the;variance will be in harmony with the general intent and purpose of this Ordinance and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare; and That the granting of this Irequest is consistent with the comprehensive plan and does not reduce the levels of service as set forth in the plan. The granting of the variance will result in a structure and site that complies with the sea level rise and resiliency review criteria in chapter 133, article II, as applicable. C. The Board hereby Approves the requested variance(s), as noted and imposes the following condition based on its authority in Section 118-354 of the Miami Beach City Code: 1. Substantial modifications to the plans submitted and approved as part of the application, as determined by the Planning Director or designee, may require the applicant to return to the Board for approval of the modified plans, even if the modifications do;not affect variances approved by the Board. 2. The roof of the covered terrace at the fourth floor shall be substantially open, subject to the review and approval of staff. The decision of the Board regarding variances shall be final and there shall be no further review thereof except by resort to a court of competent jurisdiction by petition for writ of certiorari. III. General Terms and Conditions applying to both 'I. Certificate of Appropriateness'and 'II. Variances'noted above. A. The applicant agrees and shall be required to provide access to areas subject to this approval (not including private residences or hotel rooms)for inspection by the City(i.e.: Planning, Code Compliance, Building Department, Fire Safety), to ensure compliance with the plans approved'by the Board and conditions of this order. CFN:20190667501 BOOK 31660 PAGE 4958 Page 5 of 7 HPB19-0315 Meeting Date: October 8, 2019 B. The relocation of any tree shall be subject to the approval of the Environment & Sustainability Director and/or Urban Forester, as applicable. C. Where one or more parcels are unified for a single development, the property owner shall execute and record a unity of title or a covenant in lieu of unity of title, as may be applicable, in a form acceptable to the City Attorney. D. A copy of all pages of the recorded Final Order shall be scanned into the plans submitted for building permit, and shall be located immediately after the front cover page of the permit plans. E. The Final Order shall be recorded in the Public Records of Miami-Dade County, prior to the issuance of a Building Permit. F. Satisfaction of all conditions is required for the Planning Department to give its approval on a Certificate of Occupancy; a Temporary Certificate of Occupancy or Partial Certificate of Occupancy may also be conditionally granted Planning Departmental approval. G. The Final Order is not severable, and if any provision or condition hereof is held void or .unconstitutional in a final decision by a court of competent jurisdiction, the order shall be returned to the Board for reconsideration as to whether the order meets the criteria for approval absent the stricken provision or condition, and/or it is appropriate to modify the remaining conditions or impose new conditions. H. The conditions of approval herein are binding on the applicant, the property's owners, operators, and all successors in interest and assigns. I. Nothing in this order authorizes a violation of the City Code or other applicable law, nor allows a relaxation of any requirement or standard set forth in the City Code. J. Upon the issuance of a final Certificate of Occupancy or Certificate of Completion, as applicable, the project approved herein shall be maintained In accordance with the plans approved by the board, and shall be subject to all conditions of approval herein, unless otherwise modified by the Board. Failure to maintain shall result in the issuance of a Code Compliance citation, and continued failure to comply may result in revocation of the Certificate of Occupancy, Completion and Business Tax Receipt. IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information, testimony and materials presented at the public hearing, which are part of the record for this matter, and the staff report and analysis, which are adopted herein, including the staff recommendations, which were amended and adopted by the Board, that the application is GRANTED for the above-referenced project subject to those certain conditions specified in Paragraph I, 11,111 of the Findings of Fact,to which the applicant has agreed. PROVIDED, the applicant shall build substantially in accordance with the plans entitled "Essex House: Annex & Bridge", as prepared by STA Architectural Group, dated August 5,2019, CFN:20190667501 BOOK 31660 PAGE 4959 Page 6 of 7 HPB19-0315 Meeting Date: October 8, 2019; as approved by the Historic Preservation Board, as determined by staff. When requesting a building permit, the plans submitted to the Building Department for permit shall be consistent with the plans approved by the Board, modified in accordance with the conditions set forth in this Order. No building permit may be issued unless and until all conditions of approval that must be satisfied prior to permit issuance, as set forth in this Order, have been met. The issuance of the approval does not relieve the applicant from obtaining all other required Municipal, County and/or State!reviews and permits, including final zoning approval. If adequate handicapped access is not provided on the Board-approved plans, this approval does not mean that such handicapped access is not required. When requesting a building permit, the plans submitted to the Building Department for permit shall be consistent with the plans approved by the Board, modified in accordance with the conditions set forth in this Order. If the Full Building Permit for the project is not Issued within eighteen (18)months of the meeting date at which the original approval was granted, the application will expire and become null and void, unless the applicant makes an application to the Board for an extension of time, in accordance with the requirements and procedures of Chapter 118 of the City Code; the granting of any such extension of time shall be at the discretion of the Board. If the Full Building Permit for the project should expire Ifor any reason (including but not limited to construction not commencing and continuing, 'with required inspections, in accordance with the applicable Building Code), the application will expire and become null and void. In accordance with Chapter 118 of the City Code, the violation of any conditions and safeguards that are a part of this Order shall be deemed a violation of the land development regulations of the City Code. Failure to comply with this Order shall subject the application to Chapter 118 of the City Code, for revocation or,modification of the application. Dated this, day of�c , 20/7. HISTORIC PRESERVATION BOARD THE CITY rr a IAMI BEACH, FL•RIDA 1 � r �� CHIEF OF HISTORIC PRESERVATION FOR THE CHAIR STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) The for of instrument was acknowledged before me this /4 day of 20/7 by Deborah Tackett, Chief of Historic Preservation, Planning Department, City of Miami Beach, Florida, a Florida Municipal Corporation, on behalf of the corporation. She is personally known to me. Page 7 of 7 HPB19-0315 , Meeting Date: October 8, 2019 v GABRIELA C.FREITAS _ ,` ,�;�, • . MY COMMISSION#GG131281 + , Bl. ' EXPIRES:AUG 09,2021 ,, IV mi-Dade t Florida, 3 1 l er' Bonded through 1st Slate Insurance y. ----- —m My commission expires: Approved As To Form: e City Attorney's Office: to 1 1(A Li ) Filed with the Clerk of the Historic Preservation Board on 1'01 1 (oil t?) 1 1 I 1 11 1 i • I a i i i i i 1 I I I 1 I ►� EXHIBIT"E" SKETCH AND DESCRIPTION [legal description of NOT A BOUNDARY SURVEY Easement Area] SEE SHEET 2 OF 2 FOR SKETCH OF DESCRIPTION 20 FOOT AERIAL EASEMENT FOR PEDESTRIAN WALKWAY A 20 FOOT AERIAL EASEMENT LYING IN THAT PORTION OF A 20 FOOT ALLEY LYING WITHIN BLOCK 15 OF OCEAN BEACH FLORIDA ADDITION NO.2,AS RECORDED IN PLAT BOOK 2, PAGE 56, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, LYING AND BEING IN THAT PORTION OF SECTION 3,TOWNSHIP 54 SOUTH, RANGE 42 EAST, MIAMI-DADE COUNTY, FLORIDA,THE HORIZONTAL LIMITS OF SAID EASEMENT BEING DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF LOT 9 OF SAID BLOCK 15 OF OCEAN BEACH FLORIDA ADDITION NO.2,THENCE RUN NORTH 10°39'53" EAST ALONG THE WESTERLY RIGHT OF WAY LINE OF SAID 20 FOOT ALLEY, FOR 91.91 FEET TO A POINT LYING 2.09 FEET, MORE OR LESS, SOUTH OF THE NORTHEAST CORNER OF LOT 10 OF SAID BLOCK 15 AND THE POINT OF BEGINNING; FROM SAID POINT OF BEGINNING THENCE RUN SOUTH 79°06'53"EAST, FOR 20.00 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF SAID 20 FOOT ALLEY AND A POINT LYING 1.83 FEET, MORE OR LESS,SOUTH OF THE NORTHWEST CORNER OF LOT 7 OF SAID BLOCK 15 OF OCEAN BEACH FLORIDA ADDITION NO.2; THENCE RUN SOUTH 10°39'53"WEST ALONG SAID EASTERLY RIGHT OF WAY LINE, FOR 6.00 FEET; THENCE LEAVING SAID EASTERLY RIGHT OF LINE RUN NORTH 79°06'53"WEST, FOR 20.00 FEET TO A POINT ON SAID WESTERLY RIGHT OF WAY LINE OF 20 FOOT ALLEY; THENCE RUN NORTH 10°39'53"EAST ALONG SAID WESTERLY RIGHT OF WAY LINE, FOR 6.00 FEET TO THE.POINT OF BEGINNING. THE VERTICAL LIMITS OF THE ABOVE EASEMENT ARE BETWEEN AN ELEVATION OF 42.5 FEET(NGVD29), LOWER LIMIT,TO AN ELEVATION OF 56.5 FEET(NGVD29), UPPER LIMIT. BEARINGS SHOWN HEREON ARE BASED ON THE WESTERLY RIGHT OF WAY LINE OF THE 20 FOOT ALLEY TO BEAR NORTH 10°39'53" EAST,ASSUMED. NOTES: 1. I,MARK G.LEIST,HEREBY CERTIFY THAT THIS SKETCH REPRESENTED HEREON MEETS THE STANDARDS OF PRACTICE FOR SURVEYING IN THE STATE OF FLORIDA AS SET FORTH BY THE FLORIDA BOARD OF LAND SURVEYORS,PURSUANT TO CHAPTER 472 OF THE FLORIDA STATUTES AND CHAPTER 5J-17 OF THE FLORIDA ADMINISTRATIVE CODE. 2.THE USE OF THIS DOCUMENT'S FORMAT IS STRICTLY PROHIBITED AND CONTINGENT UPON THE WRITTEN CONSENT AND PERMISSION OF BOCK& CLARK CORPORATION,AN NV5 COMPANY.©2019 BOCK AND CLARK CORPORATION,AN NV5 COMPANY ,,,, ,, toy._ G. L F MARK G.LEIST DATE = O NO. 5836 nW. REGISTRATION NO.PSM 5836 . IN THE STATE OF FLORIDA i STATE OF S Q DATE OF SKETCH:JULY 23,2019 % N s. l DATE OF LAST REVISION:JULY 23,2019 it -047' O'L7'a. .0R10P'r�`� _ ,y • Bock&Clark Corporation ,,,,,,.NO SUR - Nan NV5 Company5 °+,, ES SKETCH&DESCRIPTION PREPARED BY: BOCK&CLARK CORP.,AN NV5 COMPANY L.B.7386 8111 BLAIKIE COURT,SUITE B SARASOTA,FL 34240 PHONE:(800)787-8395 FAX:(941)379-3083 EMAIL: mike.vukoder@nv5.com Transaction Services 1-800-SURVEYS (787-8397) NOT VALID UNLESS SIGNED,DATED AND 3550 W.Market Street,Suite 200,Akron,Ohio 44333 STAMPED WITH SURVEYOR'S EMBOSSED SEAL www.BockandClark.com maywehelpyou@bockandclark.com www.NV5.com SHEET 1 OF 2 SURVEY •ZONING • ENVIRONMENTAL , ASSESSMENT NETWORK PROJECT NO.201902224-002 SKETCH AND DESCRIPTION NOT A BOUNDARY SURVEY SEE SHEET 1 OF 2 FOR LEGAL DESCRIPTION I 1 LOT 12 1 h<< LOT 5 WN, .7011111.111:010NO MOMS MtitE0'Ir' fi LOT 11 20 PEDESTRIAN WALKWAY - POINT OF BEGINNING LOT 6 01 _ POINT LYING 2.09'SOUTH V' , , OF THE NE CORNER OF LOT 10 POINT LYING 1.83'SOUTH BLOCK 15 � 7 `' OF THE NW CORNER OF LOT 7 `�1 OCEAN BEACH FLORIDA — I ADDITION NO.2 PLAT BOOK 2,PAGE 56 f ?p 3; 0001 P,WED LOT 10 am ago, LOT 7 y POINT OF COMMENCEMENT i'h, ,3 SE CORNER OF LOT 9,BLOCK 15 OCEAN BEACH FLORIDA ADDITION NO.2 - z" ` ' BLOCK 15 o • A OCEAN BEACH FLORIDA PLAT BOOK 2,PAGE 56 m 1 ' 2 i • ADDITION NO.2 PLAT BOOK 2,PAGE 56 , LOT 9 ' l LOT 8 - �EEr _ --- _�- L1 -S79°06'53"E 20.00' 1'" L2- 1 '° -N79°06'5-N10°3915 "E6.00' BocNk&Clark Corporation an NV5 Company 5 SCALE : 1" = 40' Transaction Services 1-800-SURVEYS (787-8397) 3550 W.Market Street,Suite 200,Akron,Ohio 44333 0' 20' 40' 80' www.BockandClark.com maywehelpyou@bockandclark.com www.NV5.com SHEET 2 OF 2 SURVE ' Y *ZONING • ENVIRONMENTAL • ASSESSMENT NETWORK PROJECT NO.201902224-002