AgreementThis Instrument Was Prepared By
And Should be Returned To:
Gary M. Held, First Asst. City Attorney
City of Miami Beach
1700 Convention Center Drive
4` Floor
Miami Beach, FL 33139
[For Clerk's Use Only]
BICYCLE RENTAL KIOSK EASEMENT
THIS IS AN EASEMENT given this day of , 2011, by Forte, LTD.
whose address is 3191 Coral Way, Suite 300, Miami, Florida, 33145 (hereinafter referred to as
the "Grantor "), to the City of Miami Beach, Florida, a municipal corporation whose address is
1700 Convention Center Drive, Miami Beach, Florida, 33139 (hereinafter referred to as the
« City » ).
WHEREAS, Grantor is the owner of the Whole Foods Market site (the "Property ")
located at 1020 Alton Road, Miami Beach, Florida 33139; and
WHEREAS, Whole Foods is the tenant at the Property under that certain lease between
Whole Foods ( "Whole Foods ") and Grantor (hereinafter referred to as the "Lease "); and
WHEREAS, at its regular meeting on July 15, 2009, the City approved Resolution No.
2009 - 27142, approving a concession agreement between the City and Deco Bike, LLC (Deco
Bike) for the implementation, management, and operation of a public self - service bicycle rental
and sharing program (the "Agreement "), which includes the installation, operation, and
maintenance of bike rental kiosks in areas throughout the City of Miami Beach; and
WHEREAS, Grantor and Whole Foods request that City, and City hereby agrees to,
construct, install and maintain a bicycle rental kiosk on a portion of the Property in accordance
with the attached legal description in Exhibit "A"; and
WHEREAS, Grantor has agreed to convey a non - exclusive easement to City for the
aforestated purposes.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Grantor and the City hereby agree as follows:
The foregoing recitals are true and correct and incorporated herein by reference.
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2. Grantor hereby grants, bargains, sells and conveys to the City, its successors and
assigns, a non - exclusive easement in gross, in, on, over, through, and across the parcel of land,
located in Miami -Dade County, legally described on Exhibit "A" attached hereto and
incorporated herein by reference (referred to as the "Easement Area "), for the construction,
installation, maintenance, repair, removal, relocation, improvement, access and use of a bicycle
rental kiosk, which may include, but is not limited to, a seating area, trash receptacles, signage,
benches, and any other use or activity which reasonably relates to and facilitates the City's self -
service bicycle rental and sharing program, as contemplated in the Agreement. The easement
granted hereunder shall be subject to all matters of record, rights of tenants, and all applicable
laws, and shall be subordinate to any public utility easement dedicated to the public, as the term
"public utility" is defined in Section 177.031(7)(b), Florida Statutes.
3. The term of this Easement shall run concurrent with the term of the Lease, which
currently expires on October 31, 2015. In the event that the term of the Lease is extended, the
term of this Easement shall be automatically extended (without further action required either by
Grantor or City) until the new Lease term expires. Upon expiration of the Easement, the City
shall return the Easement Area to its original condition, which is unimproved and covered with
grass.
4. The City shall have the right and privilege from time to time to alter, improve,
enlarge, add to, change the nature or physical characteristics, and replace, remove or relocate any
improvements provided that they are located in, upon, over, through and across the Easement
Area only, along with all rights and privileges necessary or convenient for the full benefit and
use thereof for the purposes described in the Easement, including but not limited to the right to
clear obstructions within and to the Easement Area.
5. The City shall be responsible for the maintenance of the bicycle sharing station
and the Easement Area. Maintenance by the City may include, as the City deems appropriate, in
its sole reasonable judgment, and at its sole cost and expense, the removal of any trash, garbage,
debris, or other waste material, graffiti removal and the upkeep of landscaping (if any).
6. Grantor acknowledges that the City may contract with third parties for the
purposes described in this Easement. The City shall have the right to assign, contract with and
grant to a third party the exercise of the rights granted to the City in this Easement.
Notwithstanding the foregoing, Grantor shall have the right to approve any Assignee Contractor
or Third Party for purposes described in this Easement. Said consent shall not be unreasonably
withheld, conditioned or delayed. Grantor hereby recognizes and approves Deco Bike, LLC as
having third party rights under the Agreement, for purposes of this paragraph.
7. In consideration for this Easement, City and Whole foods expressly agree to
indemnify, defend, protect and hold harmless Grantor against any and all claims, losses,
damages, injuries, arising solely from City's use of the Easement Area, and/or the rental,
maintenance, use and/or operation of the bicycle rental kiosk; provided, however, that the
indemnity in this Paragraph 7 is subject to the provisions of Section 768.28, Florida Statutes, as
same may be amended from time to time, such that the City shall not be held liable to pay a
personal injury or property damage claim or judgment by any one person which exceeds the sum
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of $100,000, or any claim or judgments or portions thereof which, when totaled with all other
occurrence(s), exceeds the sum of $200,000 from any and all personal injury or property damage
claims, liabilities, losses and causes of action, which may arise solely as a result of City's use of
the Easement Area, and /or the rental, maintenance, use and /or operation of the bicycle rental
kiosk. However, nothing herein shall be deemed to indemnify Grantor from any liability or
claim arising out the negligence of Grantor.
8. All of the benefits, burdens, easements, and agreements contained herein shall
constitute covenants running with the land, shall be binding upon the Grantor and shall inure to
the benefit of the City, its successors or assigns, having or hereinafter acquiring any right title or
interest in the Easement Area.
9. In the event the City fails or refuses to perform any term, covenant, or condition
of this Easement, Grantor's sole remedy shall be the right to terminate the Easement, upon no
less than fifteen (15) days written notice to City. Upon termination of the Easement, City shall
return the Easement Area to its original condition, which is unimproved and covered with grass.
10. This Easement shall be governed by, construed and enforced in accordance with
the laws of the State of Florida. Venue in an action, suit or proceeding in connection with this
Easement shall be in a state court of competent jurisdiction in Miami -Dade County, Florida. BY
ENTERING INTO THIS AGREEMENT, CITY AND GRANTOR EXPRESSLY WAIVE ANY
RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
11. This Easement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, understandings and arrangements,
both oral and written, between the parties with respect thereto.
12. All notices and communications in writing required or permitted hereunder may
be delivered personally to the representatives of the Grantor and the City listed below or may be
mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the
city of dispatch).
Until changed by notice in writing, all such notice and communications shall be
addressed as follows:
TO GRANTOR: forte, LTD
Attn:
Title:
3191 Coral Way, Suite 300,
Miami, Florida, 33145
Tel:
0 4=1001
with copies to:
TO CITY: City of Miami Beach
Attn: City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
Tel: 305- 673 -7010
TO WHOLE FOODS:
Whole Foods Market, Inc.
Attn:
Title:
Tel:
Notices hereunder shall be effective if delivered by certified mail, return receipt
requested, personal delivery, courier service, evidenced by a delivery receipt or by an overnight
express delivery service addressed to the parties for whom it is intended at the place last
specified; and the place for giving of notice shall remain such until it shall have been changed by
written notice in compliance with the provisions of this paragraph
13. The parties hereto agree that the prevailing party in any court proceeding for the
enforcement, defense or interpretation of either party's rights under this Easement, whether it be
at trial, on appeal or in bankruptcy proceedings, shall be entitled to recover all of its costs
including reasonable attorney's fees from the non - prevailing party.
14. Subject to the other provisions hereof, this Easement may not be amended,
modified or terminated except by written agreement of all of the Grantor and the City.
15. This Easement may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Easement
Agreement to be executed and delivered as of the date first above written.
Witnesses: GRANTOR:
Print Name:
Print Name:
STATE OF FLORIDA }
) SS:
COUNTY OF MIAMI -DARE)
By: _
Print:
Its:
The foregoing instrument was acknowledged before me this
2011 by , who is the
is either personally known to me or who has produced
(NOTARY SEAL)
Witnesses:
Signature of Notary Public of Florida
CITY OF MIAMI BEACH, FLORIDA:
Print Name:
Print Name:
STATE OF FLORIDA }
) SS:
COUNTY OF MIAMI -DADS)
By: _
Print:
Its:
day of ,
who
as identification.
The foregoing instrument was acknowledged before me this
2011 by , who is the
to
is either personally known or who has produced
day of ,
who
(NOTARY SEAL)
Signature of Notary Public of Florida
bi
as identification.
Witnesses:
Print Name:
Print Name:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI -DADE)
WHOLE FOODS MARKET, INC.:
By: _
Print:
Its:
The foregoing instrument was acknowledged before me this
2011 by , who is the
is either personally known to me or who has produced
(NOTARY SEAL)
APPROVED AS TO
FORM & LANGUAGE
Signature of Notary Public of Florida
& F ECUTION
Ci A rney Date
F:IATTOIHELGTasements\Deco Bikc\Deco Bike Easement FINAL FINAL 3 -23 -1 Ldoc
day of
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as identification.
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EXHIBIT "A"
LEGAL DESCRIPTION
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