98-22737 RESO
RESOLUTION NO.
98-22737
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING, ON FIRST PUBLIC
HEARING, A DEVELOPMENT AGREEMENT TO BE ENTERED INTO
BETWEEN THE DI LIDO BEACH HOTEL CORPORATION AND THE
CITY OF MIAMI BEACH IN ACCORDANCE WITH THE
REQUIREMENTS OF THE FLORIDA LOCAL GOVERNMENT
DEVELOPMENT AGREEMENT ACT FOR PROPERTY LOCATED AT 155
LINCOLN ROAD, MIAMI BEACH, FLORIDA AND AT 1653, 1655, 1657,
1661, 1663, AND 1669 COLLINS AVENUE, MIAMI BEACH, FLORIDA AND
SETTING A SECOND PUBLIC HEARING TO CONSIDER THE
DEVELOPMENT AGREEMENT.
WHEREAS, the Florida Local Government Development Agreement Act authorizes local
governments to enter into development agreements with developers in order to encourage a stronger
commitment to comprehensive and capital facilities planning, to ensure the provision of adequate
public facilities for development, to encourage the efficient use of resources, and to reduce the
economic cost of development; and
WHEREAS, the Mayor and City Commission of the City of Miami Beach deem it in the
best interest of the City to enter into a development agreement with the Di Lido Beach Hotel
Corporation with regard to properties located at 155 Lincoln Road and at 1653,1655,1657, 1661,
1663, and 1669 Collins Avenue, Miami Beach, Florida in order to, among other things, facilitate the
development of a five-star 400 room hotel, to obtain a pedestrian easement connecting, for the first
time, Lincoln Road to thc beach, and providing funds to improve Lincoln Road east of Collins
A venue; and
WHEREAS, the development agreement between the City and the Di Lido Beach Hotel
Corporation, in order to comply with S 163.3225, Florida Statutes, requires approval at two public
hearings; and
WHEREAS, the agreement is herewith submitted for first consideration at this time and if
approved a second public hearing on the aforementioned development agreement is required to be
held.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the development
agreement between the City of Miami Beach and the Di Lido Beach Hotel Corporation for property
located at 155 Lincoln Road and at 1653, 1655, 1657, 1661, 1663, and 1669 Collins Avenue, Miami
Beach, Florida is hereby approved on first public hearing and a second public hearing is hereby
scheduled for Wednesday, May 20, 1998 at 11: OO~in the City Commission Chambers, City Hall,
1700 Convention Center Drive, 3rd Floor, Miami Beach, Florida 33139.
PASSED and ADOPTED this 6th day of
May
,1998.
ATTEST:
11/
MAYOR
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FIA TTO\$ALLIBEVlDILIDO.RES
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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Name;
Address;
Juan P. Loumiet, Esq.
Greenberg Traurig Hoffman
Lipoff Rosen & Quentel, P A
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0500
DRAFT
This instrument was prepared by (record and return to):
(Space reserved for Clerk)
GTH DRAFT' NO.5 AS OF 4/30/98
AGREEMENT
THIS AGREEMENT is made and entered into as of the _ day of
1998, by and among: (1) the CITY OF MIAMI BEACH, a Florida municipal corporation
(the "City"); and (2) DI LIDO BEACH HOTEL CORPORATION, a Florida corporation
(the "Owner"):
Introduction and Background
A. The property that is the subject of this Agreement lies in Miami Beach,
Miami-Dade County, Florida. This Agreement, among other things, is intended to and
shall constitute a development agreement among the parties pursuant to the Florida Local
Government Development Agreement Act and Section 9D-l of the City's Code.
B. The Owner owns the Di Lido Property and intends to redevelop the current
hotel located on the Di Lido Property together with portions of the commercial building
also located on the Di Lido Property into a Ritz-Carlton Hotel substantially in accordance
with the provisions contained in this Agreement.
C. The City is desirous of constructing and extending its Beachwalk through and
across the beach portion of the Di Lido Property in order to provide recreational facilities
for its citizens, and desires for the Owner to grant to City a permanent easement for such
use over and across the Beachwalk Easement Area. The Owner is willing to grant such
easement for shore parallel beach access and other public purposes as part of its Planned
Development.
D. The City, in cooperation with the Owner, also wishes to make substantial
improvements to the Lincoln Road Section and the Di Lido Easement Area and to obtain
from the Owner a permanent pedestrian easement for access by the public from the
Easterly end of the Lincoln Road Section through the Di Lido Property to the beach and
the Owner is willing to grant the Di Lido Easement for public purposes as part of its
Planned Development.
E. The City is willing to consider the vacation and abandonment of the Lincoln
Road Property in favor of Owner, as the owner of the adjoining Di Lido Property, in
exchange for the grant by the Owner to the City of the Lincoln Access Easement, the
Owner's grant of the Di Lido Easement and the Owner's commitment to expend funds to
prepare the Lincoln Road Plans and to contribute funds so that the City can construct the
Lincoln Road Improvements.
F. The City is a Florida municipal corporation with powers and authority
conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida
Statutes and the Miami Beach City Charter and Code of Ordinances. The City has all
governmental, corporate and proprietary powers to enable it to conduct municipal
government, perform municipal and governmental functions and render municipal
services, including the authority to adopt, implement and enforce (together with any other
required governmental approvals) comprehensive plans, zonmg ordinances,
redevelopment plans and other police power and legislative measures necessary to assure
the health, safety and general welfare of the City and its inhabitants.
G. Having fully considered this Agreement at two duly conducted public
hearings in compliance with Section 163.3225 of the Act, having determined that the
Planned Development and this Agreement are in compliance with the Comprehensive
Plan and the City's land development regulations as of the date of the approval of this
Agreement at the second public hearing, and having further determined that it is in the
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City's best interest to deal with the issues covered by this Agreement in a comprehensive
manner, in compliance with all applicable laws, ordinances, plans, rules and regulations
of the City, while allowing the Owner to proceed in the development of the Planned
Development in accordance with existing laws and policies, subject to the terms hereof,
the City has agreed to enter into this Agreement with the Owner.
H. The City has determined that the Planned Development and the Lincoln Road
Improvements will have certain benefits to the City. The Planned Development and the
Lincoln Road Improvements will rehabilitate a key intersection of South Beach. The
Planned Development will preserve the architectural scale and historical facade of certain
existing structures and the Lincoln Road Improvements will renovate and beautify the
presentation of the intersection. The Planned Development is consistent with the City's
ongoing redevelopment of the area surrounding the Di Lido Property and will positively
influence the character of future development in the City Center-Historic Convention
Village Redevelopment and Revitalization Area.
I. All capitalized terms used in this Introduction and Background are defmed in
Section 3 or elsewhere in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Recitations. The foregoing recitations are true and correct and are
incorporated herein by this reference.
2. Authority. This Agreement is entered into pursuant to the authority and
procedures provided by the Act and Section 9D-l of the Code of the City of Miami
Beach.
3. Definitions. All capitalized terms in this Agreement shall have the
definitions set forth in this Section unless such terms are defined elsewhere in the body of
this Agreement.
3.1 "Ag" shall mean the Florida Local Government Development
Agreement Act (Section 163.3220, et. seq., Florida Statutes (1997)).
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3.2 "Approval Period" have the definition set forth in Section 11.2 of
this Agreement.
3.3 "Beachwalk" shall mean the City's Beachwalk running North and
South along the beach as depicted on the Beachwalk Site Plan.
3.4 "Beachwalk Easement" shall mean a perpetual easement for public
pedestrian use (and related easements necessary for the construction and
maintenance of the Beachwalk) across the Beachwalk Easement Area for the
continuation of the Beachwalk which easement shall be in the fonn attached
hereto as Exhibit "C".
3.5 "Beachwalk Easement Area" shall mean the area described In
Schedule "A" of the Beachwalk Easement.
3.6 "Beachwalk Site Plan" shall mean the Beachwalk Site Plan
attached hereto as Exhibit "D", as modified pursuant to the terms herein.
3.7 "Comprehensive Plan" shall mean the comprehensive plan which
the City has adopted and implemented for the redevelopment and continuing
development of the City pursuant to Chapter 163 Part II, of the Florida Statutes.
3.8 "Development Approvals" shall mean all Development Permits
and all approvals, consents, permits, special use exemptions or variances as well
as other official actions of the federal, state or county governments or other
governmental agencies.
3.9 "Development Permits" shall mean any building permit, zoning
permit, subdivision approval, zoning certification, special exceptions, variances
issued or granted by the City or any other official actions of the City (whether by
the City Commission or any City board, department or agency) having the effect
of permitting the development of the Planned Development.
3.10 "Di Lido Easement" shall mean a perpetual easement for public
pedestrian access from the Easterly end of the Lincoln Road Section running
Easterly through the Di Lido Easement Area to the beach for the purpose of
providing public access to the beach and Atlantic Ocean from the end of the
Lincoln Road Section which easement shall be in the form attached hereto as
Exhibit "E".
3.11 "Di Lido Easement Area" shall mean the area described In
Schedule "A" to the Di Lido Easement.
3.12 "Di Lido Property" shall mean the parcel of real property described
in Exhibit "A" hereto. From and after the Second Closing, the Di Lido Property
shall include all of the Owner's right, title and interest in and to the Lincoln Road
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Property pursuant to the vacation of the Lincoln Road Property as contemplated in
Section 7 hereof.
3.13 "Initial Closin2" shall have the definition set forth in Section 11.1
of this Agreement.
3.14 "Lincoln Access Easement" shall mean a perpetual easement for
public pedestrian and vehicular traffic on, across and through the Lincoln Road
Property for the purpose of allowing pedestrian and vehicular traffic to continue to
use the Lincoln Road Property which easement shall be in the form attached
hereto as Exhibit "F".
3 .15 "Lincoln Road Improvements" shall mean the improvements to be
made to the Lincoln Road Section and the Di Lido Easement Area as described in
Section 8 of this Agreement.
3.16 "Lincoln Road Property" shall mean that portion of Lincoln Road
North of the center line of the existing road right-of-way lying East of the Eastern
right-of-way line of Collins Avenue and which is contiguous to the Di Lido
Property, as more particularly described in Exhibit "B" hereto.
3.17 "Lincoln Road Section" shall mean the portion of Lincoln Road
lying East of the Eastern right-of-way line of Collins Avenue.
3.18 "Planned Development" shall mean the reconstruction and
redevelopment of the Di Lido Property (as defined in Section 3.12 hereof to
include the Owner's right, title and interest to the Lincoln Road Property after the
Second Closing), including the existing Di Lido Beach Hotel and portions of the
adjoining commercial building, in compliance with the following conditions:
(a) the maximum total square footage of floor area permitted
upon the Di Lido Property shall not exceed 407,491.25 square feet
measured in accordance with the regulations of the City's zoning
ordinance and the maximum permitted floor area ratio upon the Di Lido
Property shall be 2.5 measured in accordance with the regulations of the
City's zoning ordinance for the purposes of determining population
densities and building intensities as required by the Act.
(b) The building height shall be no more than 117 feet to the
top of the roof and 142 feet to the highest architectural projection as
measured above grade.
(c) The uses permitted in the Planned Development shall be a
hotel consisting of up to 400 "keys" (as such term is generally used in the
hotel industry) with appurtenant facilities, including, without limitation, (i)
facilities for conventions, banquets and other functions; (ii) spa; (iii)
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beachfront recreational facilities; (iv) restaurants; (v) retail; (vi) parking
facilities; (vii) administrative office space; and (viii) any other hotel or
resort related uses permitted under the City's zoning ordinance.
(d) The existing facades of the hotel located on the Di Lido
Property and adjoining commercial building shall be substantially
preserved in accordance with applicable requirements of the City.
(e) The Planned Development shall include on-site parking for
not less than 262 automobiles; provided, however, additional parking may
only be provided in accordance with the provisions of the City's zoning
ordinance, and shall not effectuate a floor area ratio which exceeds 2.5.
(f) Provided that the Owner obtains all requisite Development
Approvals to do so, the Planned Development shall be constructed in
substantial conformity with the proposed site plan (including elevations)
attached hereto as Exhibit "G" (the "Proposed Site Plan"); provided,
however, that:
(i) any material deviation (as determined by the City's
planning and zoning director) in any of the conditions described above in
subsections (a) through (e) or in the Proposed Site Plan shall require the
approval of the City commission and a written amendment to this
Agreement, if appropriate, in accordance with the requirements of the Act;
(ii) any nonmaterial changes (as determined by the
City's planning and zoning director) which are required by the Joint
Design, Review and Historic Preservation Board and the Board of
Adjustment or any other applicable board or which are initiated by the
Owner shall not require the approval of the City commission; and
(iii) any technical changes in the Proposed Site Plan not
governed by subsections (f)(i) or (f)(i) above and which are (A) required in
order for the Planned Development to be in compliance with any and all
applicable laws, codes, rules and regulations of any governmental or
regulatory agencies, including, without limitation, the South Florida
Building Code and the Americans with Disabilities Act, or (B) otherwise
required or necessary, including, without limitation, any changes in
connection with ingress and egress and public works, shall be delegated to
the appropriate government official of the City for review and approval of
any such technical changes.
(g) The Owner shall cause the timely completion of the
Planned Development and shall obtain a certificate of occupancy therefore
no later than the date that is five (5) years after the effective date hereof
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(subject to the Owner's cumulative rights to extend such period under this
Agreement).
3.19 "Second Closin~" shall have the meaning set forth in Section 11.1
of this Agreement.
4. Beachwalk Easement. The Beachwalk Easement shall be granted by the
Owner to the City at the Initial Closing and shall be in the form attached hereto as Exhibit
"C". Said grant shall not be affected by the expiration, termination or other treatment of
this Agreement and shall be deemed a perpetual easement in accordance with the terms of
said instrument.
5. Oi Lido Easement. Subject to the terms and conditions of this Agreement,
the Di Lido easement shall be granted by the Owner to the City at the Second Closing and
shall be in the form attached hereto as Exhibit "E".
6. Lincoln Access Easement. Subject to the terms and conditions of this
Agreement, the Lincoln Access Easement shall be granted by the Owner to the City at the
Second Closing and shall be in the form attached hereto as Exhibit "F".
7. Vacation of Lincoln Road. The Owner has submitted an application to the
City for the vacation of the Lincoln Road Property. The City shall consider and process
the Owner's application for vacation of the Lincoln Road Property within sixty (60) days
from the date that a completed application is submitted to the City (subject to noticing
requirements and scheduling restrictions applicable to the City's commission hearings).
Provided that the vacation is granted, then, subject to the effectuation thereof, the Lincoln
Road Property shall be included within the Di Lido Property to form a single site for the
Planned Development for purposes of floor area ratio calculations and the permitted floor
area ratio for the Di Lido Property shall be 2.5. Provided that the vacation is granted, the
City shall deliver to Owner all instruments reasonably required to effectuate the vacation
of the Lincoln Road Property, including, without limitation, a quit claim and the vacation
shall become effective at the time of the Second Closing. The Owner has hererofore paid
a fee to the City in the amount of $5,000.00 in connection with the application for
vacation of the Lincoln Road Property. The City acknowledges receipt of such fee and
agrees that such fee shall be credited against the amount that Owner is obligated to
expend for the Lincoln ~oad Improvements as provided in Section 8 of this Agreement.
8. Lincoln Road Improvements. In consideration for the grant of the Oi Lido
Easement and the economic contribution described in this Section, the City agrees that
with respect to the Lincoln Road Improvements:
(a) The Owner shall direct the construction process and be
responsible for entering into all contracts necessary for the construction of
the Lincoln Road Improvements and shall secure all required permits and
approvals for the Lincoln Road Improvements on its own behalf and, to
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the extent appropriate, on behalf of the City and with the City's
cooperation.
(b) The Owner (at its expense) shall cause all designs,
drawings and plans, including any revisions and enhancements thereto (the
"Lincoln Road Plans"), which are necessary for the construction of the
Lincoln Road Improvements consistent with the Owner's financial
commitment as described herein (except to the extent that Owner may
elect to increase such financial commitment as provided herein) to be
prepared by an architect selected by the Owner and which is mutually
acceptable to the City (such approval by the City shall not be unreasonably
withheld or delayed). The City shall have the right to the prior review and
approval of the Lincoln Road Plans (which approval shall not be
unreasonably withheld or delayed). The parties acknowledge that the final
design shall reflect the overall design theme of the Lincoln Road
Revitalization Project. The Lincoln Road Plans shall provide for or
contain certain requirements as follows:
(i) The existing geometry of the Lincoln Road Section
shall be substantially followed in the design of the Lincoln Road
Improvements. No change in the location of the sidewalks, curbs and
gutters shall be permitted without the consent of the City;
(ii) Ingress and egress (driveways) to the Planned
Development, and access through the median strip designed to
accommodate convenient vehicular access to and from the driveways for
the Planned Development so long as the existing geometry is not
substantially altered;
(iii) Appropriate vehicular turn around at the East end of
the Lincoln Road Section within the existing right-of-way;
(iv) Lighting;
(v) Landscaping;
(vi) Irrigation for landscaping;
(vii) Sidewalk;
(viii) Signage;
(ix) Improvements to the Di Lido Easement Area,
including lighting, sidewalks and landscaping.
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(c) The Owner shall expend no less than $500,000.00 for the
Lincoln Road Plans, the required permits and approvals for, and the
construction of the Lincoln Road Improvements; provided, however, that
the Owner, at its option, may expend additional funds to enhance and/or
revise the Lincoln Road Plans (subject to the review and approval of the
City which approval shall not be unreasonably withheld or delayed).
Owner acknowledges and agrees that the City shall have no financial
commitment whatsoever with respect to the planning, permitting or
construction of the Lincoln Road Improvements.
(d) The Lincoln Road Improvements must be completed by the
date of the issuance of a final certificate of occupancy for the Planned
Development.
9. Zonin~ and Other Approvals.
9.1 Development Permits. Certain provisions of this Agreement will
require that the City and/or its boards, departments or agencies take certain
governmental actions, acting in their governmental capacity and issue
Development Permits in order to accomplish and satisfy the following:
(a) The vacation of the public right-of-way for the Lincoln
Road Property and the inclusion of 49,531.25 square feet of floor area
development rights from the Lincoln Road Property to the Di Lido
Property as a result thereof;
(b) The authorization of the Lincoln Road Improvements;
( c) The construction of the Planned Development; and
(d) all actions necessary to consummate the Initial Closing and
Second Closing.
All Development Permits shall be issued subject to and conditioned upon the
Second Closing.
9.2 Applications for Development Approvals. Promptly following
the effective date of this Agreement, the Owner will initiate and diligently pursue
all Development Approval applications which were not previously initiated. The
City shall process all Development Permit applications in a timely fashion and the
City shall cooperate with the Owner (at no cost to the City) in processing all
necessary Development Approvals from federal, county and state agencies as
needed. All applications for Development Permits shall made under the
presumption that the vacation of the Lincoln Road Property has been approved by
the City and the City hereby authorizes the Owner to submit applications for the
Development Permits on that basis.
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9.3 Laws Governin~ this Aflreement. The City's laws and policies
governing the development of the Di Lido Property at the time of the execution of
this Agreement by both the parties hereto shall govern the development of the Di
Lido Property for the duration of this Agreement. The City may apply
subsequently adopted laws and policies to the Planned Development only as
otherwise permitted or required by the Act.
9.4 Comprehensive Plan. Zonin~ and Other Approvals. As provided
above, the parties recognize and agree that certain provisions of this Agreement
will require the City and/or its boards, departments or agencies, acting in their
governmental capacity, to consider governmental actions, as set forth in this
Agreement. All such considerations and actions shall be undertaken in
accordance with established requirements of state statute and City ordinances, in
the exercise of the City's jurisdiction under the police power. The parties further
recognize and agree that these proceedings shall be conducted openly, fully, freely
and fairly in full accordance with law and with both procedural and substantive
due process to be accorded the applicant and any member of the public. Nothing
contained in this Agreement shall entitle the Owner to compel the City to take any
such actions, save and except the consents, if applicable, to the filing of such
applications for Development Permits or other required Development Approvals,
as more fully set forth herein, and to timely process such applications.
10. Termination of Certain Title Matters. At the Owner's discretion, the City
shall execute any appropriate instruments and take all necessary action to join with the
appropriate parties in terminating or amending the following matters which have been
recorded in the Public Records of Miami-Dade County:
(a) Agreement dated as of July 24, 1949 between Harry Sirken,
Thomas Corporation, a Florida corporation and the City, recorded under
Clerk's File No. Y-63658 and in Deed Book 3169, at Page 17 regarding
the approval by the City of a canopy projecting from the commercial
building on the Di Lido Property;
(b) Agreement dated as of July 28, 1949 between Harry Sirken,
Thomas Corporation, a Florida corporation and the City, recorded under
Clerk's File No. Y-63674 and in Deed Book 3169, at Page 258 regarding a
ten foot internal set back in the Di Lido Property;
(c) Orders of Board of Adjustment of the City recorded in
Official Records Book 16315, at Page 5 I 23, Official Records Book 16878,
at Page 998, and Official Records Book 16504, at Page 575 which orders
relate to certain variances requested by Owner as part of its plans to
construct certain improvements on the Di Lido Property. Said
improvements were never constructed.
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Owner represents that it is the successor in interest to the parties referenced in
items in (a) and (b) above other than the City. Owner agrees that it shall use its best
efforts to obtain a letter from any existing mortgagees approving the termination of the
above items if the City deems that such approval is necessary.
11.
Deliveries.
Effectiveness: Conditions to Initial Closin~ and Second Closin~: and
11.1 Within fifteen (15) days of the effective date of this Agreement, an
initial closing (the "Initial Closing") shall be held at a mutually convenient time
and place, at which closing the Owner shall grant the Beachwalk Easement to the
City. Provided that (i) the Initial Closing has taken place, (ii) the Owner has
obtained all Development Approvals (and same remain valid and in effect) active
and required to commence construction of the Planned Development and all
required permits and approvals for the Lincoln Road Improvements within the
Approval Period (or, at Owner's option, waived the condition of obtaining
Development Approvals not obtained by such date), (iii) the Owner and its lender
shall be in a position to close on financing in an amount which is adequate to fund
the development of a Ritz-Carlton Hotel on the Di Lido Property (the
"Financing"), with such closing to take place simultaneously with the Second
Closing, (iv) the Owner shall have entered into an arm's length industry-standard
operating agreement with The Ritz-Carlton Hotel Company, L.L.C. for the Di
Lido Property for a term of no less than twenty (20) years, and (v) the City and the
Owner are ready, willing and able to deliver the items described in Sections 11.3
and 11.4, respectively, then, promptly thereafter, the Owner shall provide notice
to the City that such conditions have been satisfied and within fifteen (15) days
after the date that such notice is received by the City, a second closing (the
"Second Closing") shall be held at a mutually convenient time and place, at
which closing each party hereto shall comply with their respective obligations
herein at the Closing.
11.2 In the event that, for any reason, the conditions to the Second
Closing described in Section 11.1 above have not been satisfied by the date that is
two (2) years from the effective date of this Agreement (such period being
referred to as the "Approval Period"), then either the City or the Owner, may
elect to terminate this Agreement; provided, however, that to the extent
applications seeking any Development Approvals are still pending hearing or
appeal at the expiration of such initial period, then the Approval Period may be
extended, at the Owner's option, for an additional one (1) year (in which case the
term of this Agreement shall simultaneously be extended by one (1) year by
providing written notice of the extension to the City prior to the expiration of the
original Approval Period). In the event that Owner elects the option to extend the
Approval Period as above provided, then, if at the end of such extension period all
the Development Approvals still have not been obtained, then either the Owner or
the City shall have the option to terminate as provided above. Notice of
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termination shall be given in writing to the appropriate party no later than the
expiration of the Approval Period (as the same may be extended). If no written
notice of termination is given by the Owner, then the Owner shall be deemed to
have waived the requirement of obtaining all of the required Development
Approvals and Financing. If the Development Approvals and Financing are
obtained prior to the delivery of a written notice of termination and the City has
been so notified, then there shall be no further right of termination hereunder. In
the event that all of the Development Approvals have been timely obtained, but
some or all of them are being challenged by third parties or appeal periods have
not expired so that they have not become final at a time when the Approval Period
(as the same may have been extended) is expiring, then the City and the Owner
may agree to consider the desirability and advisability of further extending the
Approval Period (and simultaneously the term of this Agreement), provided that
such consideration and the determination thereof shall be in the sole and exclusive
discretion of each of such respective parties and any such consideration shall be
processed as an amendment to this Agreement. In the event that this Agreement
is terminated as provided in this Section, then the obligations that are to be
performed at the Second Closing shall terminate ~d the parties hereto shall have
no further obligations under this Agreement.
11.3 At the Second Closing, the City shall execute and/or deliver to
Owner the following items:
(a) all instruments reasonably required to effectuate the
vacation of the Lincoln Road Property, including, without limitation, a
quit claim deed.
(b) all applicable Development Permits, unless the Owner has
waived the condition that it receive all or any portion any of the
Development Permits (to the extent waivable), in which case, only those
Development Permits the receipt of which the Owner has not waived.
(c) at the Owner's discretion, all instruments reasonably
required by the Owner to effectuate the termination or amendment of the
matters described in Section 10(a), 10(b) and 10(c).
11.4 At the Second Closing, the Owner shall execute and/or deliver (as
appropriate) to the City the following items:
(a) the Lincoln Access Easement.
(b) the Di Lido Easement.
(c) the fees and other required items for the Development
Permits the receipt of which has not been waived by the Owner.
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(d) any subordination agreement which may be required
pursuant to Section 12(a) of this Agreement.
(e) at the Owner's discretion, all instruments reasonably
required to effectuate the termination or amendment of the matters
described in Section IO(a), lO(b) and IO(c).
The closing of the Financing shall take place at the Second Closing.
12. Title. At the Initial Closing and Second Closing the Owner shall grant the
Beachwalk Easement, the Lincoln Access Easement and the Di Lido Easement,
respectively, in each case free and clear of all liens, encumbrances, rights of occupancy,
or other matters except only the following:
(a) any then existing mortgage encumbering the underlying
land, provided the holder of any such mortgage shall execute and deliver
an appropriate subordination agreement (in a form reasonably acceptable
to the City) subordinating the lien and rights of such mortgage holder to
the rights of the City and the public;
(b) applicable zoning ordinances and regulations in accordance
with this Agreement; and
(c) rights of the public which do not adversely affect the rights
granted under the Beachwalk Easement, the Di Lido Easement and the
Lincoln Access Easement.
13. "As Is" Condition. Owner agrees to accept the Lincoln Road Property in
"as-is" physical condition at the Second Closing without any representation or warranty
by the City regarding its physical condition, but, Owner shall not be required to make any
physical improvements to, or remediate any defects or problems relating to, the Lincoln
Road Property prior to its grant of the Lincoln Road Easement. The City agrees to accept
the Beachwalk Easement, the Di Lido Easement with the underlying land and
improvements (if any) in "as-is" condition, subject, in the case of the Lincoln Road
Property, to Owner's subsequent compliance with the terms of Section 8 of this
Agreement. To Owner's best knowledge, without any investigation, there are no
hazardous materials or. other contaminants present within the proposed Beachwalk
Easement Area and the Di Lido Easement Area.
14. Reservation of Ri~hts. This Agreement shall not affect any rights which
may have accrued to any party to this Agreement under all applicable law and each party
hereto reserves any and all of such rights.
15.
Development
development,
No Permit. This Agreement is not and shall not be construed as a
Permit, Development Approval or authorization to commence
nor shall it relieve Owner of the obligations to obtain necessary
13
Development Approvals that are required under applicable law and under and pursuant to
the terms of this Agreement.
16. Good Faith: Further Assurances: No Cost. The parties to this Agreement
have negotiated in good faith. It is the intent and agreement of the parties that they shall
cooperate with each other in good faith to effectuate the purposes and intent of, and to
satisfy their obligations under, this Agreement in order to secure to themselves the mutual
benefits created under this Agreement; and, in that regard, the parties shall execute such
further documents as may be reasonably necessary to effectuate the provisions of this
Agreement; provided, that the foregoing shall in no way be deemed to inhibit, restrict or
require the exercise of the City's police power or actions of the City when acting in a
quasi-judicial capacity. Wherever in this Agreement a provision requires cooperation,
good faith or similar effort to be undertaken at no cost to a party, the concept of no cost
shall not be deemed to include any cost of review (whether legal or otherwise),
attendance at meetings, hearings or proceedings and comment and/or execution of
documents, all such costs to be borne by the party receiving a request to so cooperate, act
in good faith or so forth.
17. Consistency with the Citv's Master Plan. The City has adopted and
implemented the Comprehensive Plan. The City hereby finds and declares that the
provisions of this Agreement dealing with the Di Lido Property are consistent with the
City's adopted Comprehensive Plan and land development regulations (subject to all
applicable Development Approvals).
18. Concurrencv. The City hereby finds and declares that, based on the letter
from David Plwnmer & Associates, Inc., dated as of March 23, 1998, a copy of which is
on file with the City Clerk's office, the Planned Development meets concurrency with
respect to roads and the traffic generated by the Planned Development would not exceed
the traffic impact of the existing on-site uses. Therefore, no traffic impact study for the
purpose of concurrency determination is required and no traffic mitigation plan (other
than minor mitigation necessary for circulation and other site specific issues) is necessary
because the Planned Development is concurrent with respect to roads. Additionally, the
City hereby finds and declares that the Planned Development meets concurrency with
respect to sanitary sewer, solid waste, drainage, potable water, parks and recreation, and
mass transit.
19. Recordini of the Development Aflreement. Within fourteen (14) days
after the City executes this Agreement, the City shall record this Agreement with the
Clerk of the Circuit Court of Miami-Dade County. The Owner shall submit a copy of the
recorded Agreement to the State of Florida's land planning agency within fourteen (14)
days after this Agreement is recorded. This Agreement shall become effective only after
(i) it has been recorded in the public records of Miami-Dade County, and (ii) thirty (30)
days have elapsed after the State of Florida land planning agency's receipt of a copy of
the recorded Agreement. The Owner agrees that it shall be responsible for all recording
fees and other related fees and costs related to the recording and delivery of this
14
Agreement as described in this section. The provisions hereof shall remain in full force
and effect during the term hereof, and, subject to the conditions of this Agreement, shall
be binding upon the undersigned, and all successors in interest to the parties to this
Agreement. Whenever an extension of any deadline is permitted or provided for under
the terms of this Agreement, at the request of the either party, the other party shall join in
a short-form recordable memorandum confirming such extension to be recorded in the
public records of Miami-Dade County.
20. Term of this A~reement. If this Agreement is formally approved by the
City Commission after public hearing, then the City shall promptly take all appropriate
actions and the City and Owner shall execute and deliver this Agreement thereafter in
accordance with all requirements of law. Subject to the extension provisions below in
this Section and in Sections 11.2 and 34, this Agreement shall terminate on the date
which is five (5) years from the effective date hereof, provided that it may be further
extended, after public hearing, by mutual consent of the City and the Owner (at each
party's sole discretion); provided further, that if on the expiration date hereof as
theretofore extended (if that be the case), the Owner has not completed the construction
of the Planned Development and is diligently pursuing same, then the term of this
Agreement may be extended for an additional one (l) year period by providing written
notice of the extension to the City prior to the expiration of the original term as
theretofore extended (if that be the case). No notice of termination shall be required by
either party upon the expiration of this Agreement and the parties hereto shall have no
further obligations under this Agreement. All rights to extension of time periods herein
shall be cumulative.
21. Presentlv Permitted Development. The development which is presently
permitted on the Di Lido Property subject hereto, including population densities, and
building intensities and height, which are the subject to this Agreement are more
specifically set forth in Exhibit "J" hereto.
22. Public Facilities to Serve the Di Lido Property. A description of the
public facilities that will service the proposed development of the properties subject to
this Agreement, including who shall provide such facilities; the date any new facilities, if
needed, will be constructed; and a schedule to assure public facilities are available
concurrent with the impacts of the development is included as Exhibit "K" hereto.
23. Public Reservations and/or Dedications. A description of the reservations
and/or dedications of land for public purposes that are proposed under the terms of this
Agreement is included as Exhibit "L" hereto.
24. Required Development Permits. Attached and made a part hereof as
Exhibit "M" is a listing and description of all local development permits approved or
needed to be approved for the development of the Planned Development.
25. Omissions. The parties hereto recognize and agree that the failure of this
Agreement to address a particular permit, condition, term, or restriction shall not relieve
15
the Owner of the necessity of complying with the law governing said permitting
requirements, conditions, term, or restriction notwithstanding any such omission.
26. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if delivered by
hand, sent by recognized overnight courier (such as Federal Express) or mailed by
certified or registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to the City at:
1700 Convention Center Drive
Miami Beach, Florida
Attn: City Manager,
City Attorney
If to Owner at:
c/o Bruce Lazar, Esq.
Seville Beach Hotel, Suite M
2901 Collins Avenue
Miami Beach, FL 33140
(if not in leave with concierge)
With a copy to:
Juan P. Loumiet, Esq.
Greenberg, Traurig, Hoffman,
Rosen & Quentel P.A.
1221 Brickell Avenue
Miami, Florida 33131
Notices personally delivered or sent by overnight courier shall be
deemed given on the date of delivery and notices mailed in accordance with the
foregoing shall be deemed given three (3) days after deposit in the U.S. mails.
The terms of this Section 26 shall survive the termination of this Agreement.
27. Radon Gas. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida. Additional information regarding radon and
radon testing may be obtained from your county public health unit. [Note: this
paragraph is provided for informational purposes pursuant to Section 404.056(7),
Florida Statutes, (1993).J
28. Construction.
(a) This Agreement shall be construed and governed in
accordance with the laws of the State of Florida. All of the parties to this
Agreement have participated fully in the negotiation and preparation
16
hereof; and, accordingly, this Agreement shall not be more strictly
construed against anyone of the parties hereto.
(b) In construing this Agreement, the use of any gender shall
include every other and all genders, and captions and section and
paragraph headings shall be disregarded.
(c) All of the exhibits attached to this Agreement are
incorporated in, and made a part of, this Agreement.
29. Severability. In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or otherwise invalid, such
provision shall be given its nearest legal meaning or construed as deleted as such
authority determines, and the remainder of this Agreement shall be construed to be in full
force and effect.
30. Liti~ation. In the event of any litigation between the parties under this
Agreement for a breach hereof, the prevailing party shall be entitled to reasonable
attorney's fees and court costs at all trial and appellate levels. The terms of this Section
30 shall survive the termination of this Agreement.
31. Time of Essence. Time shall be of the essence for each and every
provision hereof.
32. Entire A~reement. This Agreement, together with the documents
referenced herein, constitute the entire agreement and understanding among the parties
with respect to the subject matter hereof, and there are no other agreements,
representations or warranties other than as set forth herein. This Agreement may not be
changed, altered or modified except by an instrument in writing signed by the party
against whom enforcement of such change would be sought and subject to the
requirements for the amendment of development agreements in the Act.
33. CCCL. Pursuant to Section 161.57 of the Florida Statutes, the parties
hereto waive any obligation on the part of the others to provide an affidavit or survey
meeting the requirements of Chapter 472 Florida Statutes delineatiqg the location of the
coastal construction control line on any properties reflected in this Agreement, if
applicable. This Section -is not intended to diminish in any way the Owner's obligations
to obtain any of the Development Approvals.
34. Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes therefor, riot, civil commotion, fire or other casualty, and other causes beyond
the reasonable control of the party obligated to perform, excluding the financial inability
of such party to perform (any such causes or events to be referred to herein as a "Force
Majeure"), shall excuse the performance by such party for a period equal to any such
period of prevention, delay or stoppage.
17
EXECUTED as of the date first above written in several counterparts, each of
which shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered
in the presence of:
CITY OF MIAMI BEACH,
a Florida municipal corporation
By:
Name:
Attest:
City Clerk
DI LIDO BEACH HOTEL
CORPORATION, a Florida corporation
By:
Name:
Title:
MIAMIlLOUMIETJ193 7889/kJ _h 12! .DOCIS/O 1/98
18
EXHIBIT "A"
DI LIDO PROPERTY
PARCEL I:
Lots 18, 19 and 20 in Block 29, of FISHER'S FIRST SUBDIVISION OF ALTON
BEACH, a Subdivision of MIAMI-DADE, Florida, according to the Plat thereof, as
recorded in Plat book 2, at Page 77, of the Public Records of MIAMI-DADE County,
Florida.
ALSO PARCEL 2:
All of Lots 1, 2, 3, 4, 17 and the South Half (S1I2) of Lots 5 and 16, in Block 29, of
FISHER'S FIRST SUBDIVISION OF ALTON BEACH, according to the Plat thereof, as
recorded in Plat Book 2, at Page 77 of the Public Records of MIAMI-DADE County,
Florida, ALSO; Beginning (F.O.B.) at the Northeast corner of the South Half (Sl/2) of
Lot 5 in Block 29 as the same is shown and designated upon the Plat Florida; thence run
in an Easterly direction along the North Line of said South Half (S 1/2) of Lot 5 in Block
29 produced to the Erosion Control Line of the Atlantic Ocean, said line recorded in Plat
Book 105, at Page 62, of the Public Records of MIAMI-DADE County, Florida; thence
run in a Southerly direction along the Erosion Control Line a distance of280.059 feet to a
point, said point being the intersection of the Erosion Control Line and the Centerline of
Lincoln Road, as said Road is shown on the above mentioned Plat, produced Easterly;
thence run in a Westerly direction along the Centerline of Lincoln Road produced
Easterly to an intersection with the Easterly Line of Block 29 produced Southerly; thence
run in a Northerly direction along the Easterly line of said Block 29 and its production
Southerly, a distance of278.878 to the Point of Beginning (F.O.B.).
To Be Described as follows:
Unit No. , and No. , of
Condominium, filed in Official Records Book
Public Records of MIAMI-DADE County, Florida.
, at Page
, a
, of the
19
EXHIBIT "B"
LINCOLN ROAD PROPERTY
20
EXHIBIT B
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LEGAL DESCRIPTION (LINCOLN ROAD ABANDONMENT):
'.... r
A portion orland being a part ofthc platted Lincoln Road right-of-way as shown on FISHER'S" .':' :.:: :::~.:.:~~ ~
. FIRST SUBDMSION OF ALTON BEACH, a Subdivision of Miami-Dade, Florida, according ". ....:;..
to the plat thereof as recorded in Plat Book 2 at Page 77 of the Public Records of Dade County, ': . ...:...:' ~.~:. ::.~.~.'.', '.
Florida. Said land being more particularly descn'bed as fonows :
.~ .:' ~;:; "~;. .
:':=: ~S~1~ =S=~~~~~~ ~~OfCollios Avenue " ;::..:'~':
. : :::.:. / )~ ~
Bounded on the West by a line 40 feet Easterly of and parallel with the centerline of Collins
Avenue as shown on said FISHER'S FIRST SUBDMSION OF ALTON BEACH.
", ,.'
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Bounded on the North by th~ South line of Block 29 of said FISHER'S FIRST SUBDMSION . .:~. ;:': ~ '.::: :
OF ALTON BEACH. .. . .
AN"D Bounded on the East by the East. line of Block 29 projected Southerly of said FISHER'S
. FIRST SUBDiVISION OF ALTON BEACH.
. .".!
" .
.. ,'"
LEGAL DESCRIPTION (LINCOLN ROAD PEDESTRIAN EASEMENT):
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The Southerly 20 feet of the fonowing Parcel ofland:
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,.
Begmn;ng (p.O.B.) at the Northeast comer of the South Half (8112) of Lot 5 in Block 29 as the ";' ';. :: .
same is shown and designed upon the Plat Florida; thence run in an Easterly direction along the :.. :. : :" .:
North Line of said South Half (81/2) of Lot 5 in Blode 29 produced to the Erosion Control Line "; ":. I
of the Atlantic Ocean. said line recorded in Plat Book 105 at Page 62, of the Public Records of' :'. .
MIAMI-DADE County, Florida; thence run in a Southerly dRction along the Erosion Control .... .....:
Une a distance of280.059fcct to a point. said point being the intersection of tile Erosion Control : .~:'. ~
Line and the Centerline of Lincoln Road, as said Road is shown on the above mentioned PJa~ : ~;: :,,:' > :
produced Easterly; thence run in a Westerly direction along the Centerline of Lincoln Road' >.; ':':.:.:'.::
"produced EastC'l'ly to an intersection with the Easterly Line of Block 29 produced Southerly; :.:... :~~''':;'. :
thence run in a Northerly direction along the Easterly line of aid Block 29 and its productiOn :'" .:': .....;<'~ :'.
. Southerly, a ~ of278.878 to the Point ofBegioning (p.O.B.) .: :. .;.: ::,;',;', .;
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TOTAL P. 02
EXHIBIT "C"
BEACHW ALK EASEMENT
21
Prepared by and Return to:
Raul J. Aguila, Esq.
Office of City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
GRANT OF PERPETUAL EASEMENT FOR BEACHW ALK
THIS GRANT OF EASEMENT (this "Easement") is made this _ day of
1998, by Dr LIDO BEACH HOTEL CORPORATION, a Florida corporation (the "Owner")
having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the
CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal
place of business at 1700 Convention Center Drive, Miami Beach, Florida.
WHEREAS, the Owner owns that certain property situated, lying and being in Dade
County, Florida, known as the Di Lido Beach Hotel located at 155 Lincoln Road, Miami Beach,
Florida, and as more particularly described in Schedule "A" attached hereto (the "Property");
WHEREAS, on or about March 13, 1982, the City entered into that certain Management
Agreement for Certain Lands in the City of Miami Beach, Florida (Agreement No. 750-0006), as
amended, with the Trustees of the Internal Improvement Trust Fund of the State of Florida,
granting the City the right to exercise management authority over the State owned beach east of
the Erosion Control Line within the City of Miami Beach, including that certain area landward
and seaward of the dune;
WHEREAS, the City is desirous of developing an at-grade pedestrian walkway, which
includes landscaping, lighting, and irrigation, along the landward side of the dune, connecting the
existing walkway fronting Lummus Park and the existing elevated wooden boardwalk which
currently begins at 21 st Street (the "Beachwalk"); and
WHEREAS, pursuant to the terms of that certain Agreement dated as of , 1998
between the City and the Owner, recorded in Official Records Book , at Page _, of the
Public Records of Miami-Dade County, which constitutes a development agreement under the
Florida Local Government Development Agreement Act, the Owner has agreed to grant this
perpetual easement to the City for use as an at-grade public pedestrian walkway, for the
installation and maintenance of landscaping, and for such other public uses which are consistent
with the City's development of the Beachwalk, across that certain portion of the Property,
approximately fifteen (15) feet in width, running along the dune line near the eastern boundary of
the Property, as same 1S more particularly described In Schedule "B" attached hereto (the
"Easement Parcel").
NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Owner by these presents hereby grants, sells, and conveys to the City, its successors and
assigns, a perpetual easement on, in, and over the Easement Parcel for the purpose of installing,
laying, constructing, operating, inspecting, maintaining, repairing, and replacing the Beachwalk.
The Owner and the City further agree to the following:
I. The Owner hereby grants to the City its employees, contractors, or
representatives, the permanent right and license for purposes of ingress and egress
to and from the Easement Parcel for the purposes of laying, constructing,
operating, inspecting, maintaining, repairing, and replacing the Beachwalk.
2. The City shall use its best efforts to obtain the necessary permits and approvals
from the State of Florida for construction of the Beachwalk; provided, however,
that in the event that the City has not secured the necessary permits and approvals
and initiated construction of the Beachwalk within three (3) years from the date of
execution of this instrument, this Easement and the easement rights granted herein
shall automatically terminate.
3. The City shall construct the Beachwalk in substantial conformity with the
Beachwalk Site Plan attached hereto as Schedule "C".
4. The City shall deliver notice of its intention to commence construction of the
Beachwalk to the Owner not later than thirty (30) days prior to the date set for
such commencement.
5. Following the completion of the Beachwalk, the City shall have the sole
responsibility and shall bear the total cost for the repair and maintenance of the
Beachwalk same.
6. The parties hereto acknowledge and agree that the Easement Parcel is intended to
be used and maintained in a first-class manner which is consistent with the high
standard of the use and maintenance of the Property. The City shall provide 24-
hour a day security for the Beachwalk in the same manner as it provides security
for its public sidewalks and right-of-ways and shall provide for regular refuse
removal for the Beachwalk.
7. The Owner reserves unto itself, its successors and assigns, the perpetual right and
privilege of:
2
a. Right of ingress and egress to and from the Easement Parcel for
construction access to the east side of the Property, provided that the
Owner has obtained all the necessary permits and approvals from the City
and the State for any such construction, and that Owner shall bear the cost
for repairing any damage to the Easement Parcel or Beachwalk, resulting
from such construction; and
b. Unrestricted access to, over, across and in the Easement Parcel, provided
that such use does not materially interfere with the continued use of the
Easement Parcel as permitted herein.
8. Owner shall not construct or permit to be constructed any structure or obstruction
on or over or interfering with the construction, maintenance, or any other aspect
of the Beachwalk located upon the Easement Parcel. The City shall not obstruct
access to the beach and the Atlantic Ocean from the Property across the Easement
Parcel.
9. Owner covenants, warrants and represents that it is the fee simple owner of the
Easement Parcel and has the right, title, and capacity to grant the perpetual
easement granted herein.
10. This grant of perpetual easement shall inure to the benefit of and be binding upon
the heirs, legal representatives, successors and assigns of the parties hereto, as
applicable.
11. In the event that the City abandons or vacates the Beachwalk, then this Easement
and the easement rights granted herein shall automatically terminate.
IN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement
to be executed by execution of this instrument as of this day of , 1998.
Witnesses:
THE OWNER
Sign Name:
Print Name:
DI LIDO BEACH HOTEL CORPORA nON,
a Florida corporation
Sign Name:
Print Name:
By:
Name:
Title:
3
JOINDER
The undersigned as mortgagee of the Property, hereby joins m this Easement and
consents to such grant of easement rights as provided herein.
COMMERCIAL BANK OF FLORIDA, a
Florida banking corporation
Sign Name:
Print Name:
By:
Name:
Title:
Sign Name:
Print Name:
4
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this _ day of
, 1998 by , as of Di Lido Beach
Hotel Corporation, a Florida corporation, on behalf of the corporation. He/She is personally
known to me or has produced as identification and who did (did not)
take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
ACKNOWLEDGED AND ACCEPTED this
by:
day of
, 1998
Witnesses:
CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation
Sign Name:
Print Name:
Sign Name:
Print Name:
By:
Mayor
ATTEST:
Robert Parcher, City Clerk
5
STATE OF FLORIDA )
)SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 1998, by , as Mayor of the City of
Miami Beach, a municipal corporation, on behalf of the Corporation. He is personally known to
me or has produced as identification and who did (did not) take an
oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
MIA.\.fIIHERNANDEZJI946S0Sl1c@bt02!.DOCISIOI198
6
EXHIBIT "D"
BEACHW ALK SITE PLAN
22
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EXHIBIT "E"
DI LIDO EASEMENT
23
Prepared by and Return to:
Joseph M. Hernandez, Esq.
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, FL 33131
GRANT OF PERPETUAL EASEMENT FOR BEACH ACCESS
TillS GRANT OF EASEMENT (this "Easement") is made this _ day of
1998, by Dr LIDO BEACH HOTEL CORPORATION, a Florida corporation (the "Owner")
having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the
CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal
place of business at 1700 Convention Center Drive, Miami Beach, Florida.
WHEREAS, the Owner owns that certain property situated, lying and being in Dade
County, Florida, known as the Di Lido Beach Hotel located at 155 Lincoln Road, Miami Beach,
Florida, and as more particularly described in Schedule "A" attached hereto (the "Property");
WHEREAS, the City and the Owner entered into that certain Agreement dated as of
, 1998, recorded in Official Records Book , at Page _, of the Public
Records of Miami-Dade County (the "Development Agreement"), which constitutes a
development agreement pursuant to the Florida Local Government Development Act, Section
163.3220, et. seq., Florida Statutes (the "Act") and which contemplates the renovation of the
existing hotel and commercial building located on the Property (the "Planned Development");
and
WHEREAS, pursuant to the Development Agreement the Owner has agreed to grant to
the City a perpetual easement for the purpose of providing public access from the Easterly end of
Lincoln Road to the beach and Atlantic Ocean through that portion of the Property which is
approximately twenty (20) feet in width, as more particularly described in Schedule "B" attached
hereto (the "Easement Parcel") in exchange for, among other things, the issuance of
development permits and approvals in order to develop the Planned Development.
NOW THEREFORE, in consideration of Ten and No/I00 Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Owner by these presents hereby grants, sells, and conveys to the City, its successors and
assigns, a perpetual easement on, in, and over the Easement Parcel for the purpose of providing
public access from the Easterly end of Lincoln Road to the beach and Atlantic Ocean and for the
purpose of installing, laying, constructing, operating, inspecting, maintaining, repairing, and
replacing a public pedestrian walkway in order to provide such public access to the beach and the
Atlantic Ocean.
The Owner and the City further agree to the following:
1. The Owner hereby grants to the City its employees, contractors, or
representatives, the permanent right and license for purposes of ingress and egress
to and from the Easement Parcel for the purposes of laying, constructing,
operating, inspecting, maintaining, repairing, and replacing the pedestrian
walkway, landscaping, lighting and irrigation, and all other related improvements
to be constructed on the Easement Parcel.
2. The City shall deliver notice of its intention to commence construction of the
pedestrian walkway and other related improvements to the Owner not later than
thirty (30) days prior to the date set for such commencement.
3. The City shall have the sole responsibility and shall bear the total cost for the
maintenance of all improvements on the Easement Parcel.
4. The parties hereto acknowledge and agree that the Easement Parcel and the
improvements thereon are intended to be used and maintained in a first-class
manner which is consistent with the high standard of the use and maintenance of
the Property. The City agrees that it shall provide 24-hour a day security for the
Beachwalk in the same manner as it provides security for its public sidewalks and
right-of-ways and shall provide for the regular removal of refuse in the Beachwalk
and the Easement Parcel. Any failure by the City to properly use and maintain the
Beachwalk and the Easement Parcel in substantial accordance with terms and
conditions hereof shall be deemed a default hereunder.
5. The Owner reserves unto itself, its successors and assigns, the perpetual right and
privilege of:
a. Right of ingress and egress to and from the Easement Parcel for
construction access to the Property, provided that Owner shall bear the
cost for repairing any damage to the Easement Parcel or Beachwalk,
resulting from such construction; and
b. Unrestricted access to, over, across and in the Easement Parcel, provided
that Owner shall not use the Easement Parcel for vehicular traffic and
Owner's use of the Easement Parcel shall not materially interfere with the
continued use of the Easement Parcel as permitted herein by Grantee and
the public.
2
6. Owner shall not construct or permit to be constructed any structure or obstruction
on or over or interfering with the construction, maintenance, or any other aspect
of the Beachwalk located upon the Easement Parcel.
7. Owner covenants, warrants and represents that it is the fee simple owner of the
Easement Parcel and has the right, title, and capacity to grant the perpetual
easement granted herein.
8. This grant of perpetual easement shall inure to the benefit of and be binding upon
the heirs, legal representatives, successors and assigns of the parties hereto, as
applicable.
9. In the event the City is in default under the terms and conditions of this Grant of
Easement, the Owner shall have the right to terminate this Easement and the
easement rights granted herein.
IN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement
to be executed by execution of this instrument as of this day of , 1998.
Witnesses:
THE OWNER
Sign Name:
Print Name:
DI LIDO BEACH HOTEL CORPORATION,
a Florida corporation
Sign Name:
Print Name:
By:
Name:
Title:
3
JOINDER
The undersigned as mortgagee of the Property, hereby joins in this Easement and
consents to such grant of easement rights as provided herein.
COMMERCIAL BANK. OF FLORIDA, a
Florida banking corporation
Sign Name:
Print Name:
By:
Name:
Title:
Sign Name:
Print Name:
4
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this _ day of
, 1998 by , as of Di Lido Beach
Hotel Corporation, a Florida corporation, on behalf of the corporation. He/She is personally
known to me or has produced as identification and who did (did not)
take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
ACKNOWLEDGED AND ACCEPTED this
by:
day of
, 1998
Witnesses:
CITY OF MIAMI BEACH, a Florida
municipal corporation
Sign Name:
Print Name:
By:
Sign Name:
Print Name:
Mayor
ATTEST:
Robert Parcher, City Clerk
5
STATE OF FLORIDA )
)SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 1998, by , as Mayor of the City of
Miami Beach, a Florida municipal corporation, on behalf of the Corporation. He is personally
known to me or has produced as identification and who did (did not)
take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
M1AMI/HERNANDEZJI9469I Jlk@nS02!.OOCISIOI/98
6
ExmBIT "F"
LINCOLN ACCESS EASEMENT
24
Prepared by and Return to:
Joseph M. Hernandez, Esq.
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P .A.
1221 Brickell Avenue
Miami, FL 33131
GRANT OF PERPETUAL EASEMENT (LINCOLN ROAD)
THIS GRANT OF EASEMENT (this "Easement") is made this _ day of ,
1998, by 01 LIDO BEACH HOTEL CORPORA nON, a Florida corporation (the "Owner")
having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the
CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal
place of business at 1700 Convention Center Drive, Miami Beach, Florida.
WHEREAS, the Owner owns that certain property situated, lying and being in Dade
County, Florida, known as the Di Lido Beach Hotel located at 155 Lincoln Road, Miami Beach,
Florida, and as more particularly described in Exhibit "A" attached hereto (the "Property");
WHEREAS, the City and the Owner entered into that certain Agreement dated as of
, 1998, recorded in Official Records Book , at Page _, of the Public
Records of Miami-Dade County (the "Development Agreement"), which constitutes a
development agreement pursuant to the Florida Local Government Development Act, Section
163.3220, et. seq., Florida Statutes (the "Act") and which contemplates the renovation of the
existing hotel and commercial building located on the Property (the "Planned Development");
WHEREAS, pursuant to the Development Agreement, the Owner has agreed to grant to
the City a perpetual easement for the purpose of providing public pedestrian and vehicular access
through and over the North one-half of Lincoln Road which is East of the Eastern right-of-way
line of Collins Avenue and which is more particularly described in Exhibit "B" attached hereto
(the "Easement Parcel") in exchange for, among other things, the City vacating its rights in and
to the Easement Parcel and the issuance of development permits and approvals in order to
develop the Planned Development; and
WHEREAS, pursuant to the Development Agreement, the Owner has agreed to
contribute not less than a certain amount to construct certain improvements as described therein
(the "Lincoln Road Improvements") in and on that portion of Lincoln Road lying East of
Collins Avenue (the "Lincoln Road Section") and on that portion of the Property which the
Owner has granted the City certain easement rights in order to provide public acess to the beach
and the Atlantic Ocean and the City has agreed to construct the Lincoln Road Improvements.
NOW THEREFORE, in consideration of Ten and NollOO Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Owner by these presents hereby grants, sells, and conveys to the City, its successors and
assigns, a perpetual easement on, in, and over the Easement Parcel for the purpose of providing
public pedestrian and vehicular access through and over the Easement Parcel and for the purpose
of laying, contracting, maintaining, repairing and replacing the Lincoln Road Improvements.
The Owner and the City further agree to the following:
1. The Owner hereby grants to the City its employees, contractors, or
representatives, the permanent right and license for purposes of ingress and egress
to and from the Easement Parcel for the purposes of laying, constructing,
operating, inspecting, maintaining, repairing, and replacing the public roadway,
public sidewalks, landscaping, lighting, utilities and irrigation, and all other
related improvements to be constructed on the Easement Parcel.
2. The City shall deliver notice of its intention to commence construction of the
Lincoln Road Improvements to the Owner not later than thirty (30) days prior to
the date set for such commencement.
3. Following the completion of the Lincoln Road Improvements, the City shall have
the sole responsibility and shall bear the total cost for the repair and maintenance
of same.
4. The parties hereto acknowledge and agree that the Easement Parcel is intended to
be used and maintained in a first-class manner which is consistent with the high
standard of the use and maintenance of the Property. The City agrees that it shall
provide 24-hour a day security for the Lincoln Road Section in the same manner
as it provides security for its public sidewalks and right-of-ways and shall provide
for the regular removal of refuse in the Lincoln Road Section.
5. The Owner reserves unto itself, its successors and assigns, the perpetual right and
privilege of:
a. Right of ingress and egress to and from the Easement Parcel for
construction access to the Property, provided that Owner shall bear the
cost for repairing any damage to the Easement Parcel, resulting from such
construction; and
b. Unrestricted access to, over, across and in the Easement Parcel, provided
that such use does not materially interfere with the continued use of the
Easement Parcel as permitted herein by Grantee and the public.
6. Using and occupying, and granting to others the right to use and occupy:
2
a. The subsurface of the Easement Parcel for any utility or drainage surface
or other use or purpose which does not materially interfere with the
non-exclusive rights herein granted to Grantee, and its authorized invitees,
agents, employees, guests, lessees and licensees, including, without
limitation, the right to construct, install, maintain and operate therein
electrical, telephone, telegraph, telecommunication, gas, gasoline, sewer,
water, and drainage fixtures; and
b. The use and occupancy reserved herein shall include the right to
reconstruct, decorate or otherwise enhance the appearance of any
landscaping and site improvements located on the Easement Parcel at any
time and from time to time, at Grantor's, its successors' and assigns', cost
and expense, provided such construction, decorations and enhancements
are reasonably acceptable to Grantee.
7. The parties agree that in connection with each of their respective rights to install
and maintain utilities in the subsurface of the Easement Parcel pursuant to this
grant of easement, each party (i) shall notify the other of its intention to install,
repair or otherwise maintain such utilities, (ii) shall cooperate fully with the other
party and take such steps as may be necessary to insure that any such installation,
maintenance or repair of said utilities will not interfere with the use or functioning
of existing utilities, (iii) shall, to the extent feasible, integrate any proposed
installation, maintenance or repair with any proposed work of a similar nature by
the other party, and (iv) shall not unreasonably interfere with the use of the
Easement Parcel by the other party as permitted under this grant of easement.
8. Owner shall not construct or permit to be constructed any structure or obstruction
on or over or interfering with the construction, maintenance, or any other aspect
of the Lincoln Road Improvements located upon the Easement Parcel.
9. Owner covenants, warrants and represents that it is the fee simple owner of the
Easement Parcel and has the right, title, and capacity to grant the perpetual
easement granted herein.
10. This grant of perpetual easement shall inure to the benefit of and be binding upon
the heirs, legal representatives, successors and assigns of the parties hereto, as
applicable.
IN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement
to be executed by execution of this instrument as of this day of , 1998.
Witnesses:
THE OWNER
3
Sign Name:
Print Name:
Sign Name:
Print Name:
DI LIDO BEACH HOTEL CORPORATION,
a Florida corporation
By:
Name:
Title:
4
JOINDER
The undersigned as mortgagee of the Property, hereby joins in this Easement and
consents to such grant of easement rights as provided herein.
COMMERCIAL BANK OF FLORIDA, a
Florida banking corporation
Sign Name:
Print Name:
By:
Name:
Title:
Sign Name:
Print Name:
5
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this _ day of
, 1998 by , as of Di Lido Beach
Hotel Corporation, a Florida corporation, on behalf of the corporation. He/She is personally
known to me or has produced as identification and who did (did not)
take an oath.
NOT AR Y PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
ACKNOWLEDGED AND ACCEPTED this
by:
day of
, 1998
Witnesses:
CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation
Sign Name:
Print Name:
Sign Name:
Print Name:
By:
Mayor
A TIEST:
Robert Parcher, City Clerk
6
STATE OF FLORIDA )
)SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 1998, by , as Mayor of the City of
Miami Beach, a municipal corporation, on behalf of the Corporation. He is personally known to
me or has produced as identification and who did (did not) take an
oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
MIAMIlHERNANDEZJ/9471761k@%g02!.DOClS/OI/98
7
EXHIBIT "G"
PROPOSED SITE PLAN
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TOTAL P.06
EXHIBIT "H"
CITY'S PLANNED LINCOLN ROAD IMPROVEMENTS
EXIDBIT "J"
PRESENTL Y PERMITTED DEVELOPMENT
Existing Zoning:
CD-3, Architectural District
Allowable Floor Area Ratio:
2.5 (Ordinance 98-3107, 6-8, a)
Allowable Existing:
357,960 square feet (based on existing site area)
Building Height Allowed: 400 188t (Orainanee 97 3097, e 7, B)'
Oceanfront lots - 250 feet, if over 100,000 sq. ft. - 300 feet;
for lots fronting on Lincoln Road the first 25 feet of lot
depth shall have a limit of 50 feet after which the height
limit shall be as prescribed above (Ordinance 98-3106, Section
[THE FOREGOING REFLECTS THE PRESENTLY PERMITTED 6-8. B. 7)
DEVELOPMENT FOR PURPOSES OF THE ACT ONLY. THE PLANNED
DEVELOPMENT SHALL CONFORlVl TO THE DESCRIPTION PROVIDED IN
SECTION 3.18 OF THIS AGREEMENT.]
EXHIBIT "K"
PUBLIC FACILITIES
The proposed development will be serviced by those roadway transportation
facilities currently in existence as provided by state, county, and local roadways. The
proposed development will also be serviced by public transportation facilities currently in
existence, as provided by Miami-Dade County, the City of Miami Beach, and such other
governmental entities as may presently operate public transportation services within the
City of Miami Beach. Sanitary sewer, solid waste, drainage, and potable water services
for the proposed development shall be those services currently in existence and owned or
operated by Miami-Dade County, the Miami-Dade County Water and Sewer Department,
and the City of Miami Beach. The proposed development shall be serviced by those
existing educational facilities owned or operated by the Miami-Dade Public Schools
District. The proposed development shall be serviced by those existing parks and
recreational facilities owned or operated by the United States Government within Miami-
Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami
Beach. The proposed development shall be serviced by those existing health systems and
facilities operated by the United States Government within Miami-Dade County, by the
State of Florida, by Miami-Dade County, and by the City of Miami Beach.
The proposed development will also be serviced by any and all public facilities, as
such are defmed in Section 163.3221(12) of the Act, that are described in the
Comprehensive Plan, specifically including but not limited to those facilities described in
the Infrastructure Element and the Capital Improvements Element therein, a copy of
which is available for public inspection in the offices of the Planning, Design and
Historic Preservation Division of the City of Miami Beach.
EXHIBIT "L"
PUBLIC RESERV A TIONS/DEDICA TIONS
Vacation of Lincoln Road. The vacation of the Lincoln Road Property as
described in Section 7 of this Agreement. Provided that the vacation is granted, then,
subject to the creation thereof, the Lincoln Road Property shall be included within the Di
Lido Property to form a single site for the Planned Development with the area to be
measured to the centerline of Lincoln Road for purposes of floor area ratio calculations
and the permitted floor area ratio for the Di Lido Property shall be 2.5.
EXHIBIT "M"
REQUIRED DEVELOPMENT PERMITS AND VARIANCES
The following constitutes a generalized list of local permits anticipated as necessary to be
approved by the terms of this Agreement:
1. Design Review Approvals, pursuant to Section 18 of the City of Miami
Beach Zoning Code.
2. Historic Preservation Approvals, pursuant to Section 19 of the City of
Miami Beach Zoning Code, including but not limited to Certificate of Appropriateness.
3 . Variances, pursuant to Section 16 of the City of Miami Beach Zoning
Code, including but not limited to the following:
a. Front setback variance
b. Side interior pedestal setback variance
c. Side interior tower setback variance
d. Rear pedestal setback variance
e. Variance to pennit construction above height of dune
f. Ocean front side yard setback
g. Variance to pennit modification of nonconforming building or use
4. Utility Permits
5. Demolition Permit
6. Building Pennits
7. Street vacation Permits
8. Environmental Pennits
9. Hazardous Materials Removal Permit, ifremoval of hazardous materials is
found necessary.
10. Coastal Construction Control Line Permit
11. Public Works Permit, Paving and Drainage
12. Public Works Permit, Water and Sewer
13. Certificates of Use and/or Occupancy
14. All other local governmental approvals as may be applicable to the subject
property from time to time pursuant to the terms of this Development Agreement.
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARING
TO CONSIDER DEVELOPMENT AGREEMENT
NOTICE IS HEREBY GIVEN that the first of two public hearings will be held by the City
Commission of the City of Miami Beach on Wednesday, May 6, 1998 at 11 :00 A.M., or as
soon thereafter as possible, in the City Commission Chambers, Third Floor, City Hall, 1700
Convention Center Drive, Miami Beach, Florida, to consider a proposed development
agreement to be entered into between Di Lido Beach Hotel Corporation and the City of
Miami Beach in accordance with the requirements of the Florida Local Government
Development Agreement Act for property located at 155 Lincoln Road, Miami Beach, Florida
and at 1653,1655,1657, 1661, 1663, and 1669 Collins Avenue, Miami Beach, Florida.
The Development Agreement proposes that the property will be used for: a hotel consisting
of up to 400 rooms with appurtenant facilities, including, without limitation, facilities for
conventions, banquets and other functions; spa; beachfront recreational facilities;
restaurants; retail; parking facilities; administrative office space; and any other appurtenant
uses permitted under the City of Miami Beach Zoning Ordinance. The Development
Agreement further proposes that the floor area ratio shall not exceed 2.5 for the purposes of
determining the proposed population density and building intensity as more particularly
provided in the Development Agreement. The building height shall be no more than 117 feet
to the top of the roof and 142 feet to the highest architectural projection as measured above
grade. The foregoing information is provided pursuant to the requirements of Section
163.3225(2)(b), Fla. Stat.
Inquiries concerning the proposed Development Agreement should be directed to the Office
of the City Clerk, (305) 673-7411. Copies of the proposed Development Agreement are
available for inspection during normal business hours in the Office of the City Clerk, City
Hall, 1700 Convention Center Drive, Miami Beach, Florida.
All persons are invited to appear at this meeting or be represented by an agent, or to express
their views in writing addressed to the City of Miami Beach City Commission c/o the City
Clerk, 1700 Convention Center Drive, First Floor, City Hall, Miami Beach, Florida 33139.
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: If a person
decides to appeal any decision made by the City Commission with respect to any matter
considered at this meeting or hearing, such person must insure that a verbatim record of the
proceedings is made, which record includes the testimony and evidence upon which the
. . appeal is to be based. This notice does not constitute consent by the City for the introduction
or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize
challenges or appeals not otherwise allowed by law.
In accordance with the Americans with Disabilities Act of 1990, persons needing special
accommodation to participate in this proceeding should contact the City Clerk's Office no
later than four days prior to the proceeding, telephone (305) 673-7411 for assistance; if
hearing impaired, telephone the Florida Relay SeNice numbers (800) 955-8771 (TOO) or
(800) 955-8770 (VOICE), for assistance.
CITY OF MIAMI BEACH
:ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
I1ttp:\\cLm iam i-beach. fl. us
COMMISSION MEMORANDUM NO. 2Bl:1B
TO:
Mayor Neisen O. Kasdin and
Members of the City Co ission
DATE: May 6,1998
FROM:
Sergio Rodriguez
City Manager
SUBJECT:
A RESOL ION APPROVING A DEVELOPMENT AGREEMENT TO BE
ENTERED INTO BETWEEN DILl DO BEACH HOTEL CORPORATION
AND THE CITY OF MIAMI BEACH IN ACCORDANCE WITH THE
REQUIREMENTS OF THE FLORIDA LOCAL GOVERNMENT
DEVELOPMENT AGREEMENT ACT FOR PROPERTY LOCATED AT 155
LINCOLN ROAD, MIAMI BEACH, FLORIDA, AND AT 1653, 1655, 1657,
1661,1663 AND 1669 COLLINS AVENUE, MIAMI BEACH, FLORIDA.
RECOMMENDATION
Approve the development agreement at first reading for purposes of setting a second public hearing
for May 20, 1998.
BACKGROUND
The City of Miami Beach has a unique opportunity to facilitate the development of a five-star, 400-
room hotel without investing public dollars. In addition, the City would obtain a pedestrian
easement connecting, for the first time, Lincoln Road to the beach, and a fully improved Lincoln
Road.
DiLido Beach Hotel Corp. has proposed a complete renovation of the current DiLido Hotel and
office building on the northeast corner of Collins Avenue and Lincoln Road into a Ritz Carlton Hotel
containing up to 400 rooms. The project would be in scale with the surrounding area and would
retain the character of the existing historic building.
The developer has asked that the City consider a vacation of 50% of the Lincoln Road right of way
in front oftheir property in order to avail the project of the additional floor area ratio from the right-
of -way. In exchange for this consideration, the developer will:
1. grant a perpetual easement to the City through the private property, providing a pedestrian
access from Lincoln Road to the beach,
2.
grant to the City a beachwalk easement across the rear
of the hotel property.
AGENDA ITEM
R'1b
5~G,"C) 8
DATE
3. grant a perpetual easement to the City for use of the road,
4. commit $500,000 to improve both the roadway and the beach access area.
ANALYSIS
The developer and the City Administration have agreed that the attached development agreement,
under Florida Statutes, Chapter 163, is the appropriate vehicle to facilitate the project and provide
the assurances necessary to protect the City's interests. The development agreement provides for the
following points:
1. Two closings would occur:
a) one involving the beachwalk easement which would be granted to the City at the
initial closing; and
b) the second closing would occur upon the developer recelVmg all necessary
development approvals, but in no event later than two years after the effective date.
2. The project must be completed within three years after the second closing.
3. The development agreement ties the developer to this specific project which is low scale and
in character with the area.
Two public hearings are required to approve the development agreement. In addition, the developer
has filed for a vacation of the road which would be considered as contemplated under the
development agreement.
CONCLUSION
The City Commission should approve the development agreement.
SR:lM:jPh
Attachment
T:\AGENDA \MA Y0698\REGULAR\DILIDO.CM