98-22750 RESO
RESOLUTION NO. 98-22750
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING 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 AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE DEVELOPMENT AGREEMENT AND DIRECTING THE
CITY CLERK TO RECORD THE DEVELOPMENT AGREEMENT WITH
THE CLERK OF THE COURT FOR THE 11TH JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY, FLORIDA.
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 the beach, and providing funds to improve Lincoln Road east of Collins
Avenue; and
WHEREAS, in order to comply with Section 163,3225, Florida Statutes, the development
agreement between the City and the Di Lido Beach Hotel Corporation requires consideration at two
public hearings; and
WHEREAS, the development agreement was considered and approved, with amendments,
at two public hearings held on May 6, 1998 and May 20, 1998, respectively; and
WHEREAS, pursuant to the terms of the development agreement, the Di Lido Beach Hotel
Corporation has agreed, inter alia, to be responsible for all recording fees and costs related to the
recording of the development agreement with the Clerk of the Court for the lith Judicial Circuit in
and for Miami-Dade County, Florida, and the delivery of the recorded development agreement to
the State of Florida's land planning agency within fourteen (14) days of its recordation.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the development
agreement, as amended, 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
A venue, Miami Beach, Florida is hereby approved, the Mayor and City Clerk are authorized to
execute the revised development agreement, and the City Clerk is hereby directed to record the
revised development agreement with the Clerk of the Court for the lith Judicial Circuit in and for
Miami - Dade County, Florida, at the expense of the Di Lido Beach Hotel Corporation, within 14 days
after the revised development agreement is executed.
PASSED and ADOPTED this 20th day of
May
,1998,
ATTEST:
rfJ! MAYOR
~r fcu~
CITY CLERK
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
DJThfgw
F:\A TTO\$ALL IBEVlDlLID02.RES
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i Atto ey Date.
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This instrument was prepared by (record and return to):
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Name:
Address:
Juan P. Loumiet, Esq.
Greenberg Traurig Hoffman
Lipoff Rosen & Quentel, PA
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0500
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THIS AGREEMENT is made and entered into as of the 11- 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-1 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
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THIS INSTRUMENT IS A COUNTERPART ORIGINAL OF THE INSTRUMENT WHICH WAS
PREVIOUSLY FILED ON JUNE 16, 1998 UNDER CLERK'S FILE NO. 98R289460 AND WAS
INADVERTENTLY MISSING THE LAST PAGE OF EXHIBIT "K". AS SUCH, THIS
DOCUMENT WHICH REPRESENTS THE COMPLETE DOCUMENT, INCLUDING THE LAST A)
PAGE, IS BEING RE-RECORDED. W':>/
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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 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, zoning 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
City's best interest to deal with the issues covered by this Agreement in a comprehensive
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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,
1. All capitalized terms used in this Introduction and Background are defined 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)),
3,2 "Approval Period" have the definition set forth in Section 11.2 of
this Agreement.
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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 form 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 a
conceptual drawing of which is attached hereto as Exhibit "D".
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 44A" 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
Property pursuant to the vacation of the Lincoln Road Property as contemplated in
Section 7 hereof.
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3,13 "Initial Closing" 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 "L inco In 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" as said term is defined in the City's zoning
ordinance (Ordinance No, 89-2665, as amended).
(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)
beachfront recreational facilities; (iv) restaurants; (v) retail; (vi) parking
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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.
(t) 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 (t)(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 or
certificate of completion, as applicable, therefore no later than the date that
is five (5) years after the effective date hereof (subject to the Owner's
cumulative rights to extend such period under this Agreement),
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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, Di 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 Ljncoln Road Property, including, without limitation, a quit claim and the vacation
shall become effective at the time of the Second Closing, The Owner has heretofore 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 Road Improvements as provided in Section 8 of this Agreement.
8, Lincoln Road Improvements. In consideration for the grant of the Di 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
the extent appropriate, on behalf of the City and with the City's
cooperation,
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(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) City-approved street signage; directional signage,
beach access signage and similar signs (excluding
private signage);
(ix) Improvements to the Di Lido Easement Area,
including lighting, sidewalks and landscaping,
(c) The Owner shall expend no less than $500,000.00 for the
Lincoln Road Plans, the required permits and approvals for, and the
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construction of the Lincoln Road Improvements which sum shall be
reasonably allocated between the Di Lido Easement Area and the Lincoln
Road Section to provide an adequate level of Lincoln Road Improvements
to each; 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), Whatever level of improvements is
undertaken by the Owner must be completed at the Owner's expense, even
if at a cost of more than $500,000,00, 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, Upon the completion of the Lincoln Road Improvements,
the Owner will provide the City with evidence that the Owner has
expended not less than $500,000,00 in connection with the Lincoln Road
Improvements.
(d) The Lincoln Road Improvements must be completed by the
date of the issuance of a final certificate of occupancy or certificate of
completion, as applicable, for the Planned Development. Upon the
issuance a final certificate of occupancy or certificate of completion, as
applicable, for the Planned Development, the Owner shall assign to the
City any warranties provided by contractors engaged by the Owner in the
construction of the Lincoln Road Improvements,
(e) On or before the commencement of construction of the
Lincoln Road Improvements, the Owner shall obtain an appropriate
performance bond covering the Lincoln Road Improvements in which the
City is named as dual obligee, Said performance bond shall be in the
amount of the cost of the Lincoln Road Improvements but in no event less
than $500,000.00.
(f) The City shall have the right (but not the obligation) to
regularly inspect and monitor the design, permitting and construction
process with respect to the Lincoln Road Improvements, In the event that
any aspect of said process is not proceeding in accordance with the
Lincoln Road Plans or if the quality of the construction is materially
deficient, then the City shall promptly notify the Owner in writing
specifying any deviations from the Lincoln Road Plans and/or any
deficiencies in the construction. The Owner shall have a reasonable period
of time in which to cure the noted deficiencies or provide a satisfactory
response, If the Owner does not cure the noted deficiencies or provide a
response reasonably satisfactory to the City, then the City shall have the
right to cure such deficiencies at the Owner's cost. The Owner shall make
no representations or warranties with respect to the Lincoln Road
Improvements; provided, however, that the Owner shall assign to the City
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any warranties of any of the contractors and subcontractors engaged by the
Owner in the construction of the Lincoln Road Improvements,
(g) Notwithstanding the foregoing provisions in this Section 8
concerning the Owner's responsibility for the Lincoln Road
Improvements, in the event that the City determines, prior to the Owner's
commencement of the preparation of the Lincoln Road Plans, that it is in
the best interest of the City to accelerate the construction of the Lincoln
Road Improvements and to perform all of Owner's obligations under this
Section 8, then the City and the Owner shall reasonably cooperate with
each other to take all actions.necessary so that the City may reasonably do
so. Any such agreement will require that the Owner contribute
$500,000.00 to the City in lieu of Owner's obligations under this Section
8,
9, Zoning 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 Pennits 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 Pennits 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 be 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
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Development Permits on that basis. No extension of any time period herein shall
be deemed to be an extension of any time periods contained within the
Development Approvals,
9.3 Laws Governin~ this Agreement. 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. Zoning 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:
(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; and
(c) Orders of Board of Adjustment of the City recorded in
Official Records Book 16315, at Page 5123, 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
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construct certain improvements on the Di Lido Property, Said
improvements were never constructed.
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 Closing and Second Closinll: 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 vacation of the
Lincoln Road Property has been approved by the City as provided in Section 7 to
be effective at the Second Closing, (iii) the Owner, the City and any other
necessary parties have theretofore executed a termination of that certain Lincoln
Road Street End Agreement dated as of March 14, 1994 between the City, the
Owner and Crescent Heights XXX, Inc" a Florida corporation, which the Owner
and the City are willing to execute, (iv) the Owner has obtained all Development
Approvals (and same remain valid and in effect, although some may be
conditioned upon the occurrence of the Second Closing and certain permits may
not be issued until the Second Closing) required to commence con~truction of the
Planned Development within the Approval Period (or, at Owner's option, waived
the condition of obtaining any Development Approvals not required to obtain a
building permit and commence construction of the Planned Development by such
date), (v) 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, but in no event less than $50,000,000,00 (the "Financing"),
with such closing to take place simultaneously with the Second Closing, (vi) 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 which requires that the portion of the
Di Lido Property to be used as a hotel to be operated in accordance with the
quality standards generally in effect for Ritz-Carlton hotels as of the execution
date of this Agreement (the "Operating Agreement") and shall have delivered to
the City a copy of a memorandum reflecting certain basic terms of said agreement
which memorandum shall have been recorded in the Public Records of Miami-
Dade County, and (vii) the Owner is 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
(the "Closing Notice") and within fifteen (15) days after the date that the Closing
Notice is received by the City, a second closing (the "Second Closing") shall be
12
,~[['I &1 65rr0967
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 by providing written notice to the other party;
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 (I) 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, At any time after the expiration
of the Approval Period (as same may be extended if that be the case) and prior to
the City's receipt of a Closing Notice, the City may issue a notice to Owner
terminating this Agreement; provided, however, that if the City has received a
Closing Notice and has not theretofore issued a notice of termination, then the
City shall not have the right to issue a notice of termination andshall have no
further right to terminate this Agreement. In the event that all of the requisite
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 and 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,
13
OfF-IS' '65rr0968
REC.
(b) all applicable Development Permits, unless the Owner has
waived the condition that it receive all or any portion 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,
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,
(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 10,
(t) all Development Approvals and all permits and approvals
required for the Lincoln Road Improvements.
The closing of the Financing shall take place at the Second Closing,
12. J:i1k, 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
14
~t~: 181 b~rrU~b~
(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 Oi 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, Use Restriction, Notwithstanding the expiration of this Agreement and
subject to (i) the rights and remedies of any lenders providing financing for the Planned
Development, and (ii) the respective rights of the parties to the Operating Agreement to
terminate the Operating Agreement for cause, the portion of the Di Lido Property which
is to be used as a hotel shall be used and operated as a Ritz-Carlton Hotel for a period of
not less than three (3) years after the date of the issuance of a final certificate of
occupancy or certificate of completion, as applicable, for the Planned Development.
15, Reservation of Rights. 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,
16. No Permit. This Agreement is not and shall not be construed as a
Development Permit, Development Approval or authorization to commence
development, nor shall it relieve Owner of the obligations to obtain necessary
Development Approvals that are required under applicable law and under and pursuant to
the terms of this Agreement.
17. 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),
15
~ft: 18 I 65rt0970
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.
18. Consistency with the City'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),
19. Concurrency, The City hereby finds and declares that, based on the letter
from David Plummer & Associates, rnc" 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 further 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 in that
there will be no degradation in the level of service -resulting from the redevelopment of
the Di Lido Property, 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.
20. Recordin~ of the Development A~reement. 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
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.
21. Term of this A~eement. 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 35, this Agreement shall terminate on the date
16
~tt: 18165r~0971
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 (1) 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 (except as provided in Section 14), All rights to
extension oftime periods herein shall be cwnulative.
22, Presentlv Permitted Develooment. 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 "H" hereto,
23, 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 "I" hereto.
24, 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 "J" hereto.
25, Required Develooment Permits, Attached and made a part hereof as
Exhibit "K" is a listing and description of all local development permits approved or
needed to be approved for the development of the Planned Development.
26, 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
the Owner of the necessity of complying with the law governing said permitting
requirements, conditions, term, or restriction notwithstanding any such omission,
27. 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:
City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
17
Wtt: 18 I 65rr0972
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 27 shall survive the termination of this Agreement.
28. 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 sti;1te 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).]
29. 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
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.
30. 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
18
~tk.' 8' 65fr0973
authority determines, and the remainder of this Agreement shall be construed to be in full
force and effect.
31. Litillation. 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.
32. Time of Essence. Time shall be of the essence for each and every
provision hereof.
33. Entire Aflreement. 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.
34. 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 delineating 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.
35. Force Maieure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes therefor, riot, civil commotion, fire or other casualty, and other causes beyond
the reasonable control of the party obligated to perform, excluding the financial inability
of such party to perform and excluding delays resulting from appeals or rehearings
commenced by the Owner (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.
19
~tt: 18 I 65rr097 4
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
~~:~
- -~C.I1JHl
CITY OF MIAMI BEACH,
a Florida municip corporation
By:
Name:-1lGI~ O. \C.~Dt10
Attest: ~~ ~ ~
Robert Parcher, City Clerk
By:
Nam :
Title:
oration
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this "2 -,tz-r day of
, 1998 by Bruce E. Lazar, as Vice President of Di Lido Beach Hotel
Corpo tion, a Florida corporation, on behalf of the corporation. He is personally known
to me .. :who did~
take an oath.
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
OFFICIAL Nor ARY SEAL
JOSEPH M HERNANDEZ
ARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CC610440
MY COMMISSION EXP. DEe. 29.2000 .
20
~tt: r 8 r 65rr0975
STATE OF FLORIDA )
)SS:
COUNTY OF DADE )
The foregoing instrument was acknow.1edged before me this / t -tI--- day of
~L.-y-..L- ,1998,by neLd~i\~) {7 /)a~C.e0- , as Mayor of the
City 0 iami Beach, a municipaf corporation, on behalf of the Corporation. He is
personally known to me Of ha3 !-,wd.ul:ed as-iQ8I'ltifieatio~
wheel.iel (did not) take an oath.
7 . d
/~lll( 4 () CtllV'er tlnyb
NO ARYPUBLlC
I-/'J II ~i rJ be au c J...Cl tL1,cJ
Typed or Printed Name of Notary I
My Commission expires:
Serial No., if any:
OFFICIAL NOfARYSF.AL
LILLIAN BEAUCHAMP
NOfARY PUBLIC sr ATE OF FLORIDA
COMMISSION NO. CC7383n
MY COMMISSION EXP. APR. 29.2002
MIAMIILOUMIETJ/93 7889/k3 _h 16! .DOC/5/2 7/98
21
~t~: 18 '16srr0976
EXHIBIT "A"
DI LIDO PROPERTY
PARCEL 1:
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 (S1/2) 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 (P.O.B.) at the Northeast corner of the South Half (S 1/2) 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 (P.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
~tt ., 8 , 65f(0977
EXHIBIT "B"
LINCOLN ROAD PROPERTY
LEGAL DESCRIPTION (Lincoln Road Abandonment):
A portion of land being a part of the platted Lincoln Road right-of-way as shown on
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 Dade County, Florida. Said land being more particularly described as
follows:
Bounded on the South by the platted centerline of Lincoln Road lying Easterly of Collins
Avenue as shown on said FISHER'S FIRST SUBDIVISION OF ALTON BEACH.
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 SUBDIVISION OF ALTON
BEACH.
Bounded on the North by the South line of Block 29 of said FISHER'S FIRST
SUBDIVISION OF ALTON BEACH.
AND Bounded on the East by the East line of Block 29 projected Southerly of said
FISHER'S FIRST SUBDIVISION OF ALTON BEACH.
~f~: 18 I 65rr0978
EXHIBIT "C"
BEACHW ALK EASEMENT
~tt: 181 65rr0979
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 DI LIDO BEACH HOTEL CORPORATION, a Florida corporation (the "Owner")
having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the
CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal
place of business at 1700 Convention Center Drive, Miami Beach, Florida.
WHEREAS, the Owner owns that certain propertY situated, lying and being in Dade
County, 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 Tmst Fund of the State of Florida,
granting the City the right to exercise management authority over the State owned beach east of
the Erosion Control Line within the City of Miami Beach, including that certain area landward
and seaward of the dune;
WHEREAS, the City is desirous of developing an at-grade public pedestrian walkway,
which includes landscaping, lighting, and irrigation, along the landward side of the dune,
connecting the existing walkway fronting Lummus Park and the existing elevated wooden
boardwalk which currently begins at 21st Street (the "Beachwalk"); and
WHEREAS, pursuant to the terms of that certain Agreement 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 (the "Development Agreement"), which constitutes a
development agreement under the Florida Local Government Development Agreement Act, the
Owner has agreed to grant this perpetual easement to the City for use as an at-grade public
pedestrian walkway, for the installation and maintenance of landscaping, and for such other
public uses which are consistent with the City's development of the Beachwalk, across that
certain portion of the Property, approximately fifteen (15) feet in width, running along the dune
REi;: I ~ I bJnu~tjU
line near the eastern boundary of the Property, as same is more particularly described in Schedule
"B" attached hereto (the "Easement Parcel").
NOW THEREFORE, in consideration of Ten and Noll 00 Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Owner by these presents hereby grants, sells, and conveys to the City, its successors and
assigns, a perpetual easement on, in, and over the Easement Parcel for the purpose of installing,
laying, constructing, operating, inspecting, maintaining, repairing, and replacing the Beachwalk
and for public pedestrian access to the Beachwalk.
The Owner and the City further agree to the following:
1. The Owner hereby grants to the City its employees, contractors, or
representatives, the permanent right and license for purposes of ingress and egress
to and from the Easement Parcel for the purposes of laying, constructing,
operating, inspecting, maintaining, repairing, and replacing the Beachwalk.
2. The City shall use its best efforts to obtain the necessary permits and approvals
from the State of Florida for construction of the Beachwalk; provided, however,
that in the event that the City has not secured the necessary permits and approvals
and initiated construction of the Beachwalkwithin the later of (i) three (3) years
from the date of execution of this instrument, or (ii) the expiration of the term of
the Development Agreement, this Easement and the easement rights granted
herein shall automatically terminate.
3. The City shall construct the Beachwalk in substantial confofmity with the
Beachwalk Site Plan attached hereto as Schedule "C".
4. The City shall deliver notice of its intention to commence construction of the
Beachwalk to the Owner not later than thirty (30) days prior to the date set for
such commencement.
5. Following the completion of the Beachwalk, the City shall have the sole
responsibility and shall bear the total cost for the repair and maintenance of the
Beachwalk, except for any repairs or maintenance arising from the negligence of
the Owner or any successor thereto.
6. The City shall maintain and repair the Easement Parcel and the portion of the
Beachwalk lying thereon in the same manner as it maintains and repairs the
remainder of the Beachwalk. The City shall insure and provide security for the
Beachwalk in the same manner as it provides security for its public sidewalks and
right-of-ways.
7. The Owner reserves unto itself, its successors and assigns, the perpetual right and
privilege of:
2
~tt: I ~ I b~nu~tj I
a. Right of ingress and egress to and from the Easement Parcel for
construction access to the east side of the Property, provided that the
Owner has obtained all the necessary permits and approvals from the City
and the State for any such construction, and that Owner shall bear the cost
for repairing any damage to the Easement Parcel or Beachwalk, resulting
from such construction; and
b. Unrestricted access to, over, across and in the Easement Parcel, provided
that such use does not materially interfere with the continued use of the
Easement Parcel as permitted herein.
8. Owner shall not construct or permit to be constructed any structure or obstruction
on or over or interfering with the construction, maintenance, or any other aspect
of the Beachwalk located upon the Easement Parcel. The City shall not obstruct
access to the beach and the Atlantic Ocean from the Property across the Easement
Parcel.
9. Owner covenants, warrants and represents (i) that it is the fee simple owner of the
Easement Parcel and has the right, title, and capacity to grant the perpetual
easement granted herein, and (ii) Commercial Bank of Florida is the sole lienor
and holder of a recorded (or unrecorded) security interest in the Easement Parcel.
10. This grarit of perpetual easement shall inure to the benefit of and be binding upon
the heirs, legal representatives, successors and assigns of the parties hereto, as
applicable.
11. In the event that the City abandons or vacates the Beachwalk, then this Easement
and the easement rights granted herein shall automatically terminate.
12. Notices. Any notices required or permitted to be given under this Easement shall
be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express) or mailed by certified or
registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to the City at:
City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager,
City Attorney
3
~t~: 18 I 65rr0982
If to Owner at:
c/o Bruce Lazar, Esq.
Seville Beach Hotel, Suite M
2901 Collins Avenue
Miami Beach, FL 33140
(if not in leave with concierge)
With a copy to:
Juan P. Loumiet, Esq.
Greenberg, Traurig, Hoffman,
Rosen & Quentel P.A.
1221 Brickell Avenue
Miami, Florida 33131
Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing shall
be deemed given three (3) days after deposit in the U.S. mails. The terms of this
Section shall survive the termination of this Easement.
13. Construction.
(a) This Easement shall be construed and governed in accordance with the laws of the
State of Florida. All of the parties to this Agreement have participated fully in the
negotiation and preparation hereof; and, accordingly, this Easement shall not be
more strictly construed against anyone of the parties hereto.
(b) In construing this Easement, the use of any gender shall include every other and
all genders, and captions and section and paragraph headings shall be disregarded.
(c) All of the exhibits attached to this Easement are incorporated in, and made a part
of, this Agreement.
14. Severability. In the event any term or provision of this Easement be determined
by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or construed as deleted as such authority
determines, and the remainder of this Easement shall be construed to be in full
force and effect.
15. Litiiation. In the event of any litigation between the parties under this EaSement
for a breach hereof, the prevailing party shall be entitled to reasonable attorney's
fees and court costs at all trial and appellate levels. The terms of this Section shall
survive the termination of this Easement.
16. Time of Essence. Time shall be of the essence for each and every provision
hereof.
17. Entire Agreement. This Easement, together with the documents referenced
herein, constitute the entire agreement and understanding among the parties with
4
REi;: 1111 bJnU~Oj
respect to the subject matter hereof, and there are no other agreements,
representations or warranties other than as set forth herein. This Easement may
not be changed, altered or modified except by an instrument in writing signed by
the party against whom enforcement of such change would be sought.
18. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes therefor, riot, civil commotion, fire or other casualty, and other causes
beyond the reasonable control of the party obligated to perform, excluding the
financial inability of such party to perform shall excuse the performance by such
party for a period equal to any such period of prevention, delay or stoppage.
IN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement
to be executed by execution of this instrument as of this day of ,1998.
Witnesses:
THE OWNER
Sign Name:
Print Name:
DI LIDO BEACH HOTEL CORPORATION,
a Florida corporation
Sign Name:
Print Name:
By:
Name:
Title:
5
REi;: I 0 I b:>nU~04
CONSENT
The undersigned as lienor, owner and holder of that certain [Mortgage] recorded in
Official Records Book _, Page _, of the Public Records of Miami-Dade County,
Florida, hereby consents to this grant of easement rights as provided herein and subordinates the
lien and the effect of its security interest to this Easement.
COMMERCIAL BANK OF FLORIDA, a
Florida banking corporation
Sign Name:
Print Name:
By:
Name:
Title:
Sign Name:
Print Name:
6
~tt: 1816srr0985
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
7
~t~: , 8\6 sr(0986
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:
MIAMIIHERNANDEZJI946S0Slk@bt04l.DOC/S/20198
8
~tf: 18 I 65rr0987
EXHIBIT "D"
BEACHW ALK SITE PLAN
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EXHIBIT D
REf: ,ti 'bjrr0988
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~tt: 18165rr0989
EXHIBIT "E"
DI LIDO EASEMENT
~tt: 18165rroggo
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
THIS GRANT OF EASEMENT (this "Easement") is made this _ day of
1998, by DI LIDO BEACH HOTEL CORPORATION, a Florida corporation (the "Owner")
having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the
CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal
place of business at 1700 Convention Center Drive, Miami Beach, Florida.
WHEREAS, the Owner owns that certain property situated, lying and being in Dade
County, Florida, known as the Di Lido Beach Hotel located at 155 Lincoln Road, Miami Beach,
Florida, and as more particularly described in Schedule "A" attached hereto (the "Property");
WHEREAS, the City and the Owner entered into that certain Agreement dated as of
, 1998, recorded in Official Records Book , at Page _, of the Public
Records of Miami-Dade County (the "Development Agreement"), which constitutes a
development agreement pursuant to the Florida Local Government Development Act, Section
163.3220, et. seq., Florida Statutes (the "Act") and which contemplates the renovation of the
existing hotel and commercial building located on the Property (the "Planned Development");
WHEREAS, pursuant to the Development Agreement the Owner has agreed to grant to
the City a perpetual easement for the purpose of providing public access from the Easterly end of
Lincoln Road to the beach and Atlantic Ocean through that portion of the Property which is
approximately twenty (20) feet in width, as more particularly described in Schedule "B" attached
hereto (the "Easement Parcel") in exchange for, among other things, the issuance of
development permits and approvals in order to develop the Planned Development; and
WHEREAS, pursuant to the Development Agreement, the Owner has agreed to construct
certain improvements on the Easement Parcel (the "Improvements").
NOW T~EREFORE, in consideration of Ten and No/IOO Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Owner by these presents hereby grants, sells, and conveys to the City, its successors and
assigns, a perpetual easement on, in, and over the Easement Parcel for the purpose of providing
~tf: 18 I 65rrog9 I
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 have the sole responsibility and shall bear the total cost for the
maintenance of the Improvements, except for any repairs or maintenance arising
from the negligence of the Owner or any successor thereto.
3. The parties hereto acknowledge and agree that the Easement Parcel and the
Improvements thereon are intended to be used and maintained in a manner which
is consistent with the standard of maintenance for the Lincoln Road Mall. The
City agrees that it shall insure and provide security for. the Easement Parcel and
the Improvements in the same manner as it provides security for its public
sidewalks and right-of-ways.
4. The Owner reserves unto itself, its successors and assigns, the perpetual right and
privilege of:
a. Right of ingress and egress to and from the Easement Parcel for
construction access to the Property, provided that Owner shall bear the
cost for repairing any damage to the Easement Parcel or Improvements,
resulting from such construction; and
b. Unrestricted access to, over, across and in the Easement Parcel, provided
that Owner shall not use the Easement Parcel for vehicular traffic and
Owner's use of the Easement Parcel shall not materially interfere with the
continued use of the Easement Parcel as permitted herein by Grantee and
the public.
5. Owner shall not construct or permit to be constructed any structure or obstruction
on or over or interfering with the construction, maintenance, or any other aspect
of the Irnprovements located upon the Easement Parcel.
2
~tt'.18 'I 65rr099Z
6. Owner covenants, warrants and represents that (i) it is the fee simple owner of the
Easement Parcel and has the right, title, and capacity to grant the perpetual
easement granted herein, and (ii) is the sole lienor and
holder of a recorded (or unrecorded) security interest in the Easement Parcel.
7. This grant of perpetual easement shall inure to the benefit of and be binding upon
the heirs, legal representatives, successors and assigns of the parties hereto, as
applicable.
8. Notices. Any notices required or permitted to be given under this Easement shall
be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express) or mailed by certified or
registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to the City at:
City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager,
City Attorney
If to Owner at:
c/o Bruce Lazar, Esq.
Seville Beach Hotel, Suite M
2901 Collins Avenue
Miami Beach, FL 33140
(if not in leave with concierge)
With a copy to:
Juan P. Loumiet, Esq.
Greenberg, Traurig, Hoffman,
Rosen & Quentel P.A.
1221 Brickell Avenue
Miami, Florida 33131
Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing shall
be deemed given three (3) days after deposit in the U.S. mails. The terms of this
Section shall survive the termination of this Easement.
9. Construction.
(a) This Easement shall be construed and governed in accordance with the laws of the
State of Florida. All of the parties to this Agreement have participated fully in the
negotiation and preparation hereof; and, accordingly, this Easement shall not be
more strictly construed against anyone of the parties hereto.
3
~tb: , 8165rrLm3
(b) In construing this Easement, the use of any gender shall include every other and
all genders, and captions and section and paragraph headings shall be disregarded.
(c) All of the exhibits attached to this Easement are incorporated in, and made a part
of, this Agreement.
10. Severability. In the event any term or provision of this Easement be determined
by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or construed as deleted as such authority
determines, and the remainder of this Easement shall be construed to be in full
force and effect.
11. Litigation. In the event of any litigation between the parties under this Easement
for a breach hereof, the prevailing party shall be entitled to reasonable attorney's
fees and court costs at all trial and appellate levels. The terms of this Section shall
survive the termination of this Easement.
12. Time of Essence. Time shall be of the essence for each and every provision
hereof.
13. Entire Agreement. This Easement, together with the documents referenced
herein, constitute the entire agreement and understanding among the parties with
respect to the subject matter hereof, and there are no other agreements,
representations or warranties other than as set forth herein. This Easement may
not be changed, altered or modified except by an instrument in writing signed by
the party against whom enforcement of such change would be sought.
14. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes therefor, riot, civil commotion, fire or other casualty, and other causes
beyond the reasonable control of the party obligated to perform, excluding the
financial inability of such party to perform shall excuse the performance by such
party for a period equal to any such period of prevention, delay or stoppage.
IN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement
to be executed by execution of this instrument as of this day of , 1998.
Witnesses:
THE OWNER
Sign Name:
Print Name:
DI LIDO BEACH HOTEL CORPORATION,
a Florida corporation
Sign Name:
Print Name:
By:
Name:
Title:
4
~tt'.18 , 6srr0994
CONSENT
The undersigned lienor, owner and holder of that certain [Mortgage] recorded in Official
Records Book _, at Page _, of the Public Records of Miami-Dade County, hereby
consents to the grant of easement rights as provided herein and subordinates the lien and effect of
its security interest to this Easement.
, a
Sign Name:
Print Name:
By:
Name:
Title:
Sign Name:
Print Name:
5
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
~tt: 18 I 65rr099S
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
6
~:~: 18 I 65rr0996
STATE OF FLORIDA )
)SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 1998, by , as Mayor of the City of
Miami Beach, a Florida municipal corporation, on behalf of the Corporation. He is personally
known to me or has produced as identification and who did (did not)
take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
MlAMI/HERNANDEZJ/946913Ik@nS051.DOC/5127/98
7
~~r 18 I 65rrogg7
EXHIBIT "F"
LINCOLN ACCESS EASEMENT
~tt: 18 I 65rr0998
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 DI LIDO BEACH HOTEL CORPORATION, a Florida corporation (the "Owner")
having its principal place of business at 155 Lincoln Road, Miami Beach, Florida in favor of the
CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), having its principal
place of business at 1700 Convention Center Drive, Miami Beach, Florida.
WHEREAS, the Owner owns that certain property situated, lying and being in Dade
County, 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 Agreemellt dated as of
, 1998, recorded in Official Records Book , at Page _, of the Public
Records of Miami-Dade County (the "Development Agreement"), which constitutes a
development agreement pursuant to the Florida Local Government Development Act, Section
163.3220, et. seq., Florida Statutes (the "Act") and which contemplates the renovation of the
existing hotel and commercial building located on the Property (the "Planned Development");
WHEREAS, pursuant to the Development Agreement, the Owner has agreed to grant to
the City a perpetual easement for the purpose of providing public pedestrian and vehicular access
through and over that portion of Lincoln Road North of the center line of the existing road right-
of-way lying East of the Eastern right-of-way line of Collins 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 construct
certain improvements as described therein (the "Lincoln Road Improvements") in and on that
portion of Lincoln Road lying East of Collins Avenue (the "Lincoln Road Section") and on that
portion of the Property which the Owner has granted the City certain easement rights in order to
provide public access to the beach and the Atlantic Ocean and the City has agreed to construct
the Lincoln Road Improvements.
~ft: 18 I 6srrog9g
NOW THEREFORE, in consideration of Ten and Noll 00 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, constructing, maintaining, repairing and replacing the Lincoln Road Improvements.
The Owner and the City further agree to the following:
1. The Owner hereby grants to the City its employees, contractors, or
representatives, the permanent right and license for purposes of ingress and egress
to and from the Easement Parcel for the purposes of laying, constructing,
operating, inspecting, maintaining, repairing, and replacing the public roadway,
public sidewalks, landscaping, lighting, utilities and irrigation, and all other
related improvements to be constmcted on the Easement Parcel. The Owner
hereby also grants the City the right to use and occupy the subsurface of the
Easement Parcel for any utility or drainage or other use or purpose, including,
without limitation, the right to construct, install, maintain and operate therein
electrical, telephone, telegraph, telecommunication, gas, gasoline, sewer, water,
and drainage fixtures and the Owner grants to. the City the right to grant easements
to third parties to do the same.
2. Following the completion of the Lincoln Road Improvements, the City shall have
the sole responsibility and shall bear the total cost for the repair and maintenance
of same, except for any repairs and maintenance arising from the negligence of
the Owner or any successor thereto.
3. The City shall provide the same level of maintenance on the pasement Parcel and
the improvements thereon as it currently provides for the Lincoln Road Mall. The
City agrees that it shall insure and provide security for the Lincoln Road Section
in the same manner as it provides security for its public sidewalks and
right-of-ways.
4. The Owner reserves unto itself, its successors and assigns, the perpetual right and
privilege of:
a. Right of ingress and egress to and from the Easement Parcel for
construction access to the Property, provided that Owner shall.bear the
cost for repairing any damage to the Easement Parcel, resulting from such
construction;
b. Unrestricted access to, over, across and in the Easement Parcel, provided
that such use does not materially interfere with the continued use of the
Easement Parcel as permitted herein by Grantee and the public; and
2
~tt'.18' 65rr I 000
c. Using and occupying, and granting to any parties providing utility service,
telephone service and to other similar parties, the right to use and occupy
the subsurface of the Easement Parcel for any utility or drainage 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.
5. The parties agree that in connection with each of their respective rights to install
and maintain utilities in the subsurface of the Easement Parcel pursuant to this
grant of easement, each party (i) shall notify the other of its intention to install,
repair or otherwise maintain such utilities, (ii) shall cooperate fully with the other
party and take such steps as may be necessary to insure that any such installation,
maintenance or repair of said utilities will not interfere with the use or functioning
of existing utilities, (iii) shall, to the extent feasible, integrate any proposed
installation, maintenance or repair with any proposed work of a similar nature by
the other party, and (iv) shall not unreasonably interfere with the use of the
Easement Parcel by the other party as permitted under this grant of easement.
6. Owner shall not construct or permit to be constructed any structure or obstruction
on or over or interfering with the construction, maintenance, or any other aspect
of the Lincoln Road Improvements located upon the Easement Parcel.
7. Owner covenants, warrants and represents that it is the fee simple owner of the
Easement Parcel and has the right, title, and capacity to grant the perpetual
easement granted herein.
8. This grant of perpetual easement shall inure to the benefit of and be binding upon
the heirs, legal repres~ntatives, successors and assigns of the parties hereto, as
applicable.
9. Notices. Any notices required or permitted to be given under this Easement shall
be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express) or mailed by certified or
registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to the City at:
City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager,
City Attorney
3
~ft: 18165r~ I 00 I
If to Owner at:
c/o Bruce Lazar, Esq.
Seville Beach Hotel, Suite M
2901 Collins A venue
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 33 131
Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing shall
be deemed given three (3) days after deposit in the U.S. mails. The terms of this
Section shall survive the termination of this Easement.
10. Construction.
(a) This Easement shall be construed and governed in accordance with the laws of the
State of Florida. All of the parties to this Agreement have participated fully in the
negotiation and preparation hereof; and, accordingly, this Easement shall not be
more strictly construed against anyone of the parties hereto.
(b) In construing this Easement, the use of any gender shall include every other and
all genders, and captions and section and paragraph headings shall be disregarded.
( c) All of the exhibits attached to this Easement are incorporated in, and made a part
of, this Agreement.
11. Severability. In the event any term or provision of this Easement be determined
by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or construed as deleted as such authority
determines, and the remainder of this Easement shall be construed to be in full
force and effect.
12. Litigation. In the event of any litigation between the parties under this Easement
for a breach hereof, the prevailing party shall be entitled to reasonable attorney's
fees and court costs at all trial and appellate levels. The terms of this Section shall
survive the termination of this Easement.
13. Time of Essence. Time shall be of the essence for each and every provision
hereof.
4
~tt: 18165rr I 002
14. Entire Agreement. This Easement, together with the documents referenced
herein, constitute the entire agreement and understanding among the parties with
respect to the subject matter hereof, and there are no other agreements,
representations or warranties other than as set forth herein. This Easement may
not be changed, altered or modified except by an instrument in writing signed by
the party against whom enforcement of such change would be sought.
15. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes therefor, riot, civil commotion, fire or other casualty, and other causes
beyond the reasonable control of the party obligated to perform, excluding the
fmancial inability of such party to perform shall excuse the performance by such
party for a period equal to any such period of prevention, delay or stoppage.
IN WITNESS WHEREOF, the undersigned has caused this grant of perpetual easement
to be executed by execution of this instrument as of this day of , 1998.
Witnesses:
THE OWNER
Sign Name:
Print Name:
DI LIDO BEACH HOTEL CORPORATION,
a Florida corporation
Sign Name:
Print Name:
By:
Name:
Title:
5
~t~: 18165r~ I 003
CONSENT
The undersigned lienor, owner and holder of that certain [1vIortgage] recorded in Official
Records Book ____, at Page _, of the Public Records of Miami-Dade County, hereby
consents to the grant of easement rights as provided herein and subordinates the lien and effect of
its security interest to this Easement.
Sign Name:
Print Name:
By:
Name:
Title:
Sign Name:
Print Name:
6
COUNTY OF DADE
)
) SS:
)
~f~: 18165rb 1004
STATE OF FLORIDA
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, FLORlDA, a
municipal corporation
Sign Name:
Print Name:
Sign Name:
Print Name:
By:
Mayor
ATTEST:
Robert Parcher, City Clerk
7
STATE OF FLORIDA
)
)SS:
)
~ft: 1816sr~ r 005
. 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:
MIAMllHERNANDEZII9471761k@".gOSI.DOClSI20/98
8
~tt: 18165r~ I 006
EXHIBIT "G"
PROPOSED SITE PLAN
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1 I. . 'I i.d 8liil :e8'
s' I!~ I!.~ --=6 'I'!
~ 6. .i., ~~i: hit ~d.
11m ;1 U i~ QI:I~ ia n~1
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~tt: 18165r~ I 0 12
EXHIBIT "H"
PRESENTLY 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:
Oceanfront lots - 250 feet, if over 100,000 square
feet - 300 feet; if over 200,000 square feet - 400; 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
97-3097, Section 6-8.B.7)
[THE FOREGOING REFLECTS THE PRESENTLY PERMITTED
DEVELOPMENT FOR PURPOSES OF THE ACT ONLY. THE PLANNED
DEVELOPMENT SHALL CONFORM TO THE DESCRIPTION PROVIDED IN
SECTION 3.18 OF THIS AGREEMENT.]
~t~: 18165r~ I 0 13
EXHIBIT "I"
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 defined 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 City Clerk of the City of
Miami Beach.
~tt: 18165r~ I 0 14
EXHIBIT "J"
PUBLIC RESERV A TIONS/DEDICA TIONS
1. 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.
2. The Beachwalk Easement.
3. The Di Lido Easement.
4. The Lincoln Road Easement
~tt: 1816srt I 015
EXHIBIT "K"
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 permit construction above height of dune
f. Ocean front side yard setback
g. Variance to permit modification of nonconforming building or use
4. Utility Permits
5. Demolition Permit
6. Building Permits
7. Street vacation Permits
8. Environmental Permits
9. Hazardous Materials Removal Permit, if removal of hazardous materials is
found necessary.
10. Coastal Construction Control Line Permit
11. Public Works Permit, Paving and Drainage
~tt: , 816sr~ I 0 16
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.
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OADE COIl ~'-""...L R~r""",,-
ReCORD NTY. F(OR.n4, ---
HAR VERIFIED.. ~
c VEY RUVIN
LERJc CIRCUIT CO~
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