HomeMy WebLinkAboutReso 2003-582
RESOLUTION NO. 2003- 522-
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, APPROVING THE RELEASE OF AN
AGREEMENT AND A BEACH ACCESS EASEMENT AGREEMENT FOR
D.P. COLONIAL, LLC, ATTACHED HERETO AS EXHIBIT "A";
PROVIDING THE MAYOR TO EXECUTE THE RELEASE AND
AUTHORIZING THE CITY MANAGER TO DO ALL THINGS
NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, a request has been made for the release of an Agreement imposed upon the
property situated at 18101-18145 Collins Avenue, a/k/a Colonial Hotel; and
WHEREAS, the Agreement was recorded in Official Record Book 18398 Page 3768-
3777 in the official records of Miami-Dade as part of a prior zoning approval issued under
Resolution 98-Z-9 and 98-Z-24; and
WHEREAS, staff has reviewed the request and has no objection to the request.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Release of Declaration. The City Commission hereby releases the Agreement
imposed upon the property, which was recorded in the Official Records Book 18398 at Page
3768-3777, provided the Colonial Hotel is no longer in operation.
Section 2. Authority of Mayor. The City Commission hereby gives the Mayor the authority
to execute the release of the Agreement and authorizing the City Manager to do all things
necessary to effectuate this Resolution.
Section 3.
Effective Date. This Resolution shall become effective upon adoption.
PASSED AND ADOPTED this ~day of ~ \It 'i.A-, 20 3
ATTEST: "
~e~~Qerk
~!
1
HO:jb A: Reso I
8/11103 -- 3:45 PM
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
~er, City Attorney
Vote: :;-b
Mayor David Samson
Vice Mayor Norman S. Ede1cup
Commissioner Gerry Goodman
Commissioner Danny Iglesias
Commissioner Lila Kauffman
HO:jb A: Reso 1
8/11/03 -- 3:45 PM
Moved by: c'~vnl"t\. \& '\O-tUiv> -.:t~\ etK'
Seconded by: V \~ vY\~ ('tv- ~ e... CM p
~(Yes)
0Yes)
---LL(Y es)
~es)
(Yes)
_(No)
_(No)
_(No)
_(No)
_(No)
2
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~~t 1 8398 PG 3768
AGREEMENT
98R613355 1998 DEe 21 07:J~
nnSAGREEMENT is made and entered into as of the X. day orOclk1998,
byand betWeen D.P. COLONIAL, LLC, a Florida limited liability company ("Colonial") and
THE CITY OF SUNNY ISLES BEACH, a Florida municipal corporation (the "City").
R E C I TAL S:
.A '.YIHEREAS, Culunial is the developer. of .a. certamapartment, apartmentlhotel,
an""~t condo~ project to be located on. that certain property lying. and situate in Sunny Isles
Be~~I1,M.ill~Q~~eCounty, Florida, andmoreparticuIarly descn'bed on Exhibit ''A'' attached
he,l'~o (tlt~~'Projecr');
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i.\ \!I.WHEREAS,in connection with the City's approval of the Project, Colonial has
agiee4 t()gr~t au.cI create, and the City desires to obtain, . on the. terms and conditions hereinafter
set fortb,' an Easement over and across a portion of the, property for the purposes hereinafter set
forth;
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rrOw, lHEREFORE, for Ten and No/IOO (SI0.00) Dollars and other good and valuable
consideration, the..r~ceipt and sufficiency of which are hereby acknowledged, IIld with the intent
to be legaIIy bound, Colonial and the City hereby agree as follows:
1.
Recitals. The foregoing recitals are true and correct and are incorporated herein by
this reference.
,2.
Deliveiy of Easement. Providedthat the City issues to Colonial, its successors or
asSiins, a Certificate of Occupancylies for the Project with a Floor Area Ratio of
2.7, Colonial agrees to execute and deliver to the City ~e Beach Access Easement
Agreement (the "Easement Agreement'') attached hereto as Exhibit "8" to anow non-
exclusive pedestrian and official ingress and egress over a portion of the . property
owned by Colonial, \Wich portion of property shaD be at least 45 feet wide, inclusive of
a .12 'ea.~ent described in that City resolution approving the Project, an as more
particularly set forth in the Beach Access EaV!m4lJnf Agreement.
In.the event, however, that Grantor does not request a certificate of occupancy lies
for buildings or structures on the Property that are in excess of a 2.5 Floor Area
Ratio, then this Agreement shan be of no further force and effect. In the event that
Colonial seeks certificates of occupancy for buildings or structures on the Property
that in excess ofa 2.5 floor'area ratio but less than a 2.7 floor area ratio. then die
legal deScription of the, Beach Access Easement shall be modified to reduce the
size of said easement area by a ratio of 1 square foot of easement area for each 2
square feet offloor area ratio below 2.7, the location of such reduction in square
footage to be mutually agreed upon by the parties.
~~~ I 8398 rG 3769
3. Binding Effect. This Agreement shall be binding upon Colonial and the City, and
tiJ.eir resp~ctive successors and assigns.
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4. Attorneys' Fees. If any legal action, proceeding, arbitration or hearing is brought
by either party to this Agreement to resolve a dispute hereunder or to enforce the terms and
conditionshereo( then the prevailing party shan be entitled to recover reasonab,Ie ~ttom.eys'Jees
and court costs incurred at trial and all appellate levels. . .
s.
(a)
(b)
(c)
(d)
(e)
(f)
Miscenaneous. The parties further agree as follows:
The parties acknowled~e and aJtl"ee that this Agreement is fully and adequately
supported by consideration and is. fair. .and reasonable. The . parties ..further
acknowledge and agree that: (i) each party has h.ad the oppoItunitytocot\su1t
with, and has in fact consulted with, such professionals, experts and legal co\DI~t
of its choice as such party may have desired with respect to all matters.setded.and
resolved herein, (il) each party. has participated fully in the n.egotiation and
preparation .of this Agreement, and .(iii) each party. has carefully reviewed thi~
.. Agreement and is entering mto same neely. Accordingly, this Agreement shan not'
be more strictly construed against either party.
Each.party represen. ts .an. .d. warran.t.s to the o.ther that the. e.x.. ecu...tion... .an. d d.. e.liv...'ery of
this Agreement -has been duly approved by all requisite corporate and/or
partnership action (as applicable) required to be taken by such party.
This Agreement shall be construed and governed in accordance with the laws of
the State of Florida.
In the event any term or provision of this Agreement be determined by appropriate
judicial authority to be illegal or otherwise invalid, such provimon shall be given its
nearest legal meaning or be conStmed as deleted as such authority determines, and
the remainder of this Agreement shall be constmed to be in full force and effect.
In construing this Agreement, the singular shan be held to include the plural, the
plural shaU be held to include the singular, the use of any gender shall be held to
include every other and all genders, and captions and paragraph headings shall be
disregarded.
All of the exhibits attached to this Agreement are incorporated in, and made a part
ot: this Agreement.
6. Entire Agreement. This Agreement constitutes the full and . entire agreement and
understanding between the parties with respect to the subject matter hereof: and there are no
agreements, representations or wamnties except as specifically set . forth. herein. All prior
- ciiscussions, negotiations, and writings of any kind between Colonial and the City are fully merged
into this Agreement and are to be constnled to be of no further'Torce or effect, it being the )
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i~~ /8398'PG:3170
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intention of the parties that this Agreement shaD serve as the sole and entire expressi()n of their
agreement and understanding. ThiS Agreemelitmay'not beammde40r mo~efJ~t by an
instrument in writing., siped by the party.lgainst whomeuforcementof such amendment or
modification is sought.. .. ,..
EXECUTED as of the day and year first above written.
Witnesses:
D.P./C()LO~.LLC, a Florida Limited
LiabilitfCoJllpany
B < ,"
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CITY OF
6-
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Attorney
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OFF /. 839 '
REC 8PG 3771
EXBIBIr!'AU'
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:7"~~ North3S0 feet ofTractIfP",1~AMENDED PLAT OF.NOR,11I
"'LH;,.:QlSCA~..BEACH, .'accordingto .theflatthereo( .recorded in
Plat Book 44, Page 43, of the Public Records of Dade County,
Florida,
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AND
... Th~So~th 1()Of'e~~C?-{!b-~<S()~}09 feet of Tract "0", measured at
nght angles to the South boundary of wd bact "0", of the
AMENDE!> PIAT()FNORlH BISCAYNE BEACH, according
to th~~latther~~recorded in PJat Book 44, Page 437 oftb,e~lie
Records of Dade County, Florida.. '.' <
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EXHIBIT "B"
)
this Instrument prepared by (or under the supervision of),
and after recordlng shoutd be returned to:
CllfforcfA. Schulman, Esq.
Greenberg Traurlg
1221 Brickell Avenue
MIami, Florida 33131
~~~ I 839B P-G 3772
BEACH ACCESS EASEMENT AGREEMENT
THIS BEACH ACCESS EASEMENT. ~GREEMENT (tile "Agreemenr) is .made . and
entered into as of ther day of. C)~.. .1$3i:,by and between .D.PCOLONIAL
LLC, ~. Florida limited liability company (Mc;rantor1.. having an address of 89 5th Avenue, 11th
Floor Rear, New York, ~ew York 10003, and THE CITY OF SUNNY ISLES BEACH, a
municipal corporation existing under the laws of the State of Florida ("GrantBe',..havlng an
)' addrCitss of cia City Manager, 17070 Collins Avenue, Suite 250,Sunny Isles Beach,Florida
33360.
R Eel TAL S:
-------_.
. VVHEREAS, Grantor is the developer of a certain apartment and apartmentlhotel
project to be known as loc8ted on that certain property lying and situate in
Sunny Isles Beach, Miami-Dade County, Florida, and more particularly described on Exhibit
"A" attached hereto (the MProjeetj;
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VVHEREAS, Grantor is the owner of the portion of the Project more particularly
described in Exhibit liB" attached hereto and by this reference made apart hereof (the
MEasement Parcel' and
...
VVHEREAS, in connection with Grantee's approval of the Project, Grantor has agreed
to grant and create, and Grantee desires. to obtain, on the terms and conditions hereinafter set
forth, an Easement (as hereinafter defined) over and across the Easement Parcel for the
), purposes hereinafter set forth.
~~t I 8398 fG 3773
NOW THEREFORE, Grantor, in consideration of Ten ($10.00) Dollars, and for other
good and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Grantee hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are incorporated
herein as if repeated at length.
2. Grant of Easement. Grantor hereby grants to Grantee a non-exclusive
easement (the "Easement") in favor of Grantee over and across the Easement Parcel solely
for: (a) pedestrian ingress and egress from Collins Avenue to the beach lying easterly of the
Fasement ParcAI hAtwAA., thA h()lIr~ of 9'00 ~ m and 9'00 pm (eslitem standard time), and
-, . ,'(b) the personnel of the police and fire departments and other govemmental authorities having
jurisdiction over the Eas~rnent parcel whir~:engaged Intheperrorman~ofthelr offICial duties.
Grantee may permit members of the public to also use the Easement Parcel to the same
extent as. the Grantee as provided in clause (a)above. .
. '
3. Deslan. Construction and Malntenal1ce.of Easement Parcel a'rid ImDrovements.
Grantor and its successors and assigns shall have the eXclusIVe 'right todesigri, build, fUmlsh
and. maintain any and all improvem~nts (including but not limited to landscaping, iriigatiOri' and
Iighti"g)iocatedwithin the Easement Parcel. The design of and anyandanmaterfals to' be
used for any and all Improv~ments within the Easement Parcel shall be presented to the
Grantee for its approval prior to construction of such improvements, which approval shall not
be unreasonably withheld or delayed. Grantor shall at all times maintain the Easement Parcel
(including any and all improvements which may be. constructed thereon from time to time) In
good conditi~" and in a s~fe,clean anel. reasonably attnictive manner. In the event that
Grantor fails,to maintain the Easement Parcel in the C()ndition described in this Section 3, then
the Grantee may give notice of default to the,Grantor, and the Grantor shall have thirty (30)
days following the date of receipt of such notice to restore the Easement Parcel, to the required
condition, or in the event the restoration cannot be completed within such thirty (30) day
period, to commence restoration and diligently pursue same to completion. . In the event that
the Grantor fails to...restore or commence restoration and diligently pursue .,samewithtn .such
...
thirty (30) day period, then the Grantee may restore the Easement Parcel to its required
condition and thereafter, the Grantor shall reimburse the Grantee for the reasonable costs of
such restoration within thirty (30) days following receipt by the Grantor of a reasonably
documented invoice for s.ame. Notwithstanding the foregoing, In the event that any repairs,
repiacements or maintenance is required as result of Grantee's misuse or neglect of the
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~~t I 8398 PG 3774
Easement Parcel.. said repairs, replacements and/or maintenance shall be the obligation of the
Grantee at. the Grantee's sole cost and expense.
4. Mechanic's liens, Grantee shall keep the Easement Parcel (and all portions
thereof) at all times free of mechanics' and/or construction Dens and any other Bens for labor,
seNiees, suppDes, equipment or materials purchased or procured, directly or indirectly, by or for
Grantee. Grantee agrees that it will promptly pay and satisfy all liens of contractors, subcontractors,
mechanics, laborers, materialmen and others of like character, and Will indemnify the Grantor
against all liabilities, e)(J)An~A$. COstS8Rd chaFges, iAcludiRa, without Kluif'd(ibn, bond payments for
release.of liens and attorneys' fees and costs reasonably Incurred In and aboUt the defense of any
suit in discharging the Easement Parcel (or any. portion thereOf) from any ..Iiens, jUdgments or
encumbran<:es.causedor suffered by or through Grantee.fn the eventanysuch6ens shaD be
. .
made or~led,Grantee shaD bond against or discharge 'Same within thirty (30) days after receiving
written notice of the filing of same. Grantee shall not have any authority to create any lens for labor
or material on the Easement Parcel and aD perSonsc:ontr8cting with' Grantee for the perfonnance of
any services. supply of any materials or provision of any labOr for any wor1cdone . In, on or around
the Easement Parcel. and all materialmen, contractors,suppRers, mea,anics and laborers ~re
hereby charged with notice that they must look solely to Grantee to secure payment of any bill for
work done or materials fumished at the request or lnstrudiori of Grantee,
5. .ComDliance ..Wrth Laws. The beneficiaries of the Easement shall at all times
obseNe in the use of the Easement Parcel alf applicable municipal, county, state and federal
laws, ordinances. codes, statutes, rules and regulations.
6. ReseNation. Grantor hereby reserves all rights of ownershIp In and to the
Easement Parcel whIch are not . Inconsistent with the · Easement, including, without limitation:
(a) the right to grant further non-eXclusive easements on, over. and/or across the Easement
Parcel (i.e. utility and/or access easements), (b) the right to use the Easement. Parcel for all
uses not Interfering or inconsistent with the uses permitted herein, Including, but not limited to:
vehicular access and ingress and egress to, over, and from the Easement Property and the
Property; service access to, over and from the Easement Property and the Property;
installation, maintenance and use of utility facilities and access therefore and maintenance
thereof; the right to conduct any activity upon the Easement Parcel which promotes the
security of the Easement Parcel or the Property or any persons or property located thereon, to
the extent permitted by applicable law, as long as public access to the beach through the
) 'Easement Parcel is reasonably maintained during the hours of operation noted hereinabove;
')
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~~t 18398 PG 3775
and the right to construct and maintain any signs within the Easement Parcel as may be
permitted by applicable law; and (c) the exclusive right to design, build, furnish and maintain
any and all improvements (including but not limited to landscaping and lighting) located within
the Easement Parcel.
7. Indemnification. Subject to the provisions of Section 768,28, Florida Statutes,
Grantee hereby agrees, and all parties by virtue of their. use of the Easements shall be deemed to
have agreed.. to jointly and severally indemnify.. defend and hold harmless the Grantor (and all of its
membe~, offICers, directors, employees, successors and assigns) from and against any and all
liabilities.dalJ1ages, claims, costs or 8>q)8Rs8S~Qe\'er (indudiAg aD reasGflablealtemeys' fee!
and costs whether suit ~e brought or any appeals be.taken therefrom) arising from,..groNing out of
or connecti~g In lIny way with any Improper use ofU1eEasement and the Easement Parcel. The
grantor hereby agrees. andall parties by virtue of their use of the Easements shall be deemed to
have agreed, to joil}tly and severally indemnify. d.efend and hold harmless the Grantee (and all of its
members,offlC8~, directors. employees, sua:essors and assigns) from and against any and an
liabilities~ damages, claims, costs or expenses whatsoever (including. all reasonable attorneys' fees
and costs whether suit be brought or any appeals betaken therefrom) arising from,growing out of
or connecting in any way with failure of the Grantor to. maintain the Easement and the Easement
Parcel as provided in Section 3.
8, Enforcement. The provisions of this Agreement may be enforced by all
appropriate actions at law and inequity by the Grantor and/or the respective fee owners from
time to time of the Project. with the prevailing party in any such action entitled to
reimbursement of reasonabl.e attorneys' fees and costs incurred at trial and all appellate levels.
9. Construction. The section headings contained in this Agreement are for
reference purposes only and shall not affect. the meaning or Interpretation hereof. All of the
parties.to this Agreement have participated fully In the negotiation of this Agreement. and
accordingly. this Agreement shall not be more strictly construed against anyone of the parties
hereto. In construing this Agreement. the singular shall. be held to Include the plural. the plural
shall be held to include the singular, and reference to any particular gende.r shall be held to
...
include every other and all genders.
10. Notices. Any and all notices required or desired to be given hereunder shall be
in writing and shall be deemed to have been duly given when delivered by hand or three (3)
business days after deposit in the United States mail, by registered or certified mall. return
receipt requested. postage prepaid, and addressed to the applicable party to the address set
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~~~ 18398?G 3776
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for such party set forth at the top of this Agreement (or to such ot~e~ address as either party
shall hereafter specify to the othfiJr in writing).
11. Severability. In the'evenf any term or provision of this Agreel11ent Is detennined
':, ,'- ,,- ',.c', ,,,c'.."._;.-:.-,.., "'_'_":',. " .,
by appropriate jUdtCfalll~ 10 ~~.~~.~ '1l'. ot')!liWI~e InValld"~l~: s.~.~ given
its nearest 'ega' meaning or be construed as deleted as such authorft}f~~fennlnes, and the
remainder of this Agreement shall be construed in full force and effect.
12. Successors and Assians. This Agreement shall be binding upon and Inure to
thA hAnAm of the parties hereto and their respe~tivtf ~uccessors and assigns.
13. Amendments: T~'n~: This Agreement may not be emend'ed.~.or
terminated except by wriftenag,.~~~.nt of the parties hereto. Further, no modifaitfon or
amendment shall be effective unless in writing and recorded in the Public Records of Mlami-
Dade County, Florida; provided, however, to the extent thatanyportionoftheProjectfs .
submitted to the condominium form of ownership (each portion to referred to as a
.Condominium Parcel', then, as to that portion or portions, the instrument of amendment or
modification shall be executed by the applicabJecondominium association(s) In lieu of the fee
owners of the Condominium Parcel(s) of the respective properties and their mortgagees,
14. Entire Aareement. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supercedes all prior agreements,
understandings and arrangements, both oral and written, between the parties with respect
thereto.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement
day and year first above written:----
D.P Colonial LLC, a Florida
I;:ed~~~~
Title: ~ \.Je. fPrt ""'Qt
[CORPORATE SEAL]
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. . The foregoing Agreement was acknowledge
Or4-rk~ &-., 1~~ by M. Oe.,...-
me this -8- day of
, as of
STATE OF FLORIDA )
)55.
COUNlY OF MIAMI-DADE )
-5-
C.P Colonial LLC. a Florida Umlted liability company. ~personallY appeared before me and
Is personally~;~Z ~
[NOTAR"tAL"~~ <
,. ,.~ 7. ''''~ Notary:
I.. j 1 ,. ' . ,", " ~...'1\, Print Name: ' t; 'H Qf'iHtt
. ..i!'&i";;;.,ii N~taJypubn~f~tI1t.?fFlortda/. \ ..............
:~~1~~.,I MyCommlsslon~!res: S-i -~R]
.' '1liM....~~~.,
APPROVED AS ~.~D)'
CORRECTNESS:
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~~~ I 8398 PG 3777
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MIAMVSCHlJl.MANCIS6B5S2JIqmq03I.DOCl1o.a11S8
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sJaNr is<s City of Sunny Isles Beach Davidy Commi ion
21 a�, 17070 Collins Avenue, Suite 250 Norman S.Edeleup,Vice Mayor
;, Sunny Isles Beach,Florida 33160
Gramm?
Commissioner
Dainty Malar,Commissioner
4. API Lib 14.11mA.COMM=lorer
Chri(305) 947-0606 City Hall
.s rr .‘04-ee (305)949-3113 Fax M.
Da J.Ruud,Ciit Mmuger
\~ `1O ,,.a' (305) 947-2150Building Department Lynn M.&tim ale,City niCiryorney
o. sun X305) 949-5107 Fax Jane Rims, Acting Cny Clerk
MEMORANDUM
To: The Honorable Mayor and City Commission c
Front Jorge L.Vera,Planning and Zoning Administrator
Date: August 28,2003
Re: Release of Agreement and Beach Access Easement Agreement
RECOMMENDATION
The attached Resolution is presented to the City Commission for consideration
REASONS
The City Commission approved under Resolution 98-Z-9 and 98-Z-24 an apartment hotel on the
property. The owners of the property known as the Colonial Hotel is requesting this Commission
to release an Agreement and Beach Access Easement Agreement approved by the City. The
developer has revised the plans through Administrative Site Plan Approval 2001-05 and has
submitted a new Agreement and Beach Access Easement Agreement. The phase 2 is currently
under construction, therefore, there is no detrimental effect to a release at this time the
abovementioned agreements in order to clear title on the property.
Agenda Item 4 t\
Date 8- 2-0-os