Surface Easement Agreement ORB 28757/2340 ail-07 go
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO: i1„ 205-1 2,30
Neisen O. Kasdin, Esq. V(C,n�
Akerman Senterfitt
1 SE 3rd Avenue
Miami, FL 33131
----------------------------------------------------[SPACE ABOVE THIS LINE FOR RECORDING DATA]----------------------------------------------------
SUBSURFACE EASEMENT AGREEMENT
THIS SUBSURFACE EASEMENT AGREEMENT ("Agreement") is made and entered into
this AT day of 2013 ("Effective Date"), by and between CITY OF
MIAMI BEACH a political subdivision of the State of Florida, whose address is 1700
Convention Center Drive, Miami Beach, Florida 33139, as grantor, ("Owner" or "City"), and
COLLINS 3300, LLC and 3420 COLLINS AVENUE, LLC, both are Foreign Limited
Liability Corporations, whose address is 730 Fifth Avenue, 20th Floor, New York, NY 10019, as
grantee, ("Developer" and together with the Owner, each, a "Party" and collectively, the
"Parties").
RECITALS:
A. Owner is the political subdivision of jurisdiction to all of the right-of-way known
as 34th Street ("Ri2ht-of-Wav") and that certain real property, situated, lying and being in
Miami-Dade County, Florida, as legally described and depicted in the sketch in Exhibit "A"
attached hereto and by this reference incorporated herein, consisting of a portion of the Right-of-
Way (the "Easement Parcel").
B. Developer is the owner of fee simple title to that certain real property situated,
lying and being in Miami-Dade County, Florida, as legally described and depicted in the sketch
in Exhibit "B" attached hereto and by this reference incorporated herein (the "Developer
Property").
C. As depicted on Exhibit "B," a portion of the Developer Property, consisting of
the following folio number: 02-3226-001-1450; (the "North Parcel"), borders the northern
boundary of the Easement Parcel.
D. As depicted on Exhibit "B," another portion of the Developer Property,
consisting of the following folio number: 02-3226-001-1430; (the "South Parcel"), borders the
southern boundary of the Easement Parcel.
E. Developer plans to-install certain Improvements (hereinafter described) within the
Easement Parcel, such as is depicted in Exhibit "C" attached hereto and by this reference
incorporated herein.
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F. The Developer intends to develop the Developer Property for the Atlantic Hotels
project (the "Project") generally consisting of a mixed-use project with two (2) hotels with
accessory assembly space and accessory retail uses, together with off-street parking facilities;
approved by the City Historic Preservation Board on February 14, 2012 (File No. 7299), the City
Planning Board on February 28, 2012 (File No. 2049) and the City Board of Adjustment on
March 2, 2012 (File No. 3561) (the "Approved Plans").
G. As part of the Project, the Developer intends to construct certain Improvements
(as hereinafter defined), and in connection therewith requires an Easement (as hereinafter
defined) for the Project.
H. The Owner agrees to grant to Developer the Easement pursuant to the terms set
forth herein and as set forth in Resolution 2012-28092 of the City of Miami Beach (attached as
Exhibit "D") and agrees that such Easement shall be a covenant running with the land.
MOW, THEREFORE, in consideration of the mutual covenants, promises, terms and
conditions set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. Recitals. The above recitals are true and correct, and are incorporated
herein by reference.
Section 2. Easements. The easements described in Sections 2(a) through 2(c) below
are hereinafter referred to as the "Easements" and the easement areas described in Sections 2(a)
through 2(c) below are one and the same as the area of the Easement Parcel, legally described
and sketched in Exhibit "A". This Agreement shall not become effective unless and until it is
properly executed by the Parties and recorded by the Developer.
Owner makes no representations or warranties whatsoever to developer with respect to
the condition of the,easement parcel. Developer is accepting the easement parcel on an "as is"
"where is" basis and assumes all risk with respect to the condition thereof including, without
limitation, thereunder or appurtenant thereto, whether known or unknown to owner.
The developer shall take reasonable precautions within and around the easement parcel
for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to,
persons or property including, without limitation, employees, visitors to and residents of the
surrounding site and those portions of the site and buildings adjacent to the easement parcel.
The developer shall not encroach upon any other of owner's property beyond the
boundaries of the easement parcel.
The Developer may use the Easements and Easement Parcel solely for the following
purposes:
a. Temporary Construction Easement. Owner hereby grants and conveys to
Developer, its employees, contractors, subcontractors and agents (i) a temporary and exclusive
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construction easement on, in, under, over, across and through the Easement Parcel for purposes
of constructing, reconstructing, excavating, grading, sloping, installing, laying, inspecting,
erecting, improving, removing, maintaining, operating, repairing, replacing and restoring the
Improvements and the Project; (ii) the right to store materials and equipment on and in the
Easement Parcel (but not above ground storage in the Right-of-Way unless expressly provided
for by Right-of-Way permit), and (iii) a temporary access easement for ingress, egress and
access in connection with the foregoing (collectively, the "Temporary Construction
Easement"). Prior to the Commencement of Construction (as hereinafter defined) of the
Improvements on, in, under, over, across or through the Easement Parcel, the Developer shall
submit a right-of-way permit application to the City Public Works Department. The Temporary
Construction Easement shall expire upon the completion of the construction of the Project, as
evidenced by a final certificate of occupancy for the last phase or improvement of the Project
(the "Completion Date"), or if the building permit expires or is abandoned (as defined by
Section 105.4.1.3 of the Florida Building Code, which states a permit is in active progress when
the permit has received an approved inspection within 180 days; i.e. the building permit is
expired or abandoned if an inspection is not approved within a 180-day period), as of a date
confirmed by the City's Building Official. If construction on the Project is stopped for any
reason, Developer agrees to restore the right-of-way to the condition existing prior to
commencement of construction, or such other condition as the parties may agree.
b. Subterranean Easement. Owner hereby grants and conveys to Developer,
its employees, contractors and agents an exclusive subterranean easement below, across and
through the Easement Parcel for the purposes during construction, repair or reconstruction of
the Project, of constructing, reconstructing, excavating, installing, laying, inspecting, erecting,
improving, removing, maintaining, operating, repairing, replacing and restoring the
Subterranean Improvements (as hereinafter defined) and the Project, including the right to store
materials and equipment on the Easement Parcel related solely to the construction of the
Easement Parcel and the Project, and grants and conveys to Developer, its tenants, employees,
agents, customers and invitees, an easement for ingress, egress and access on, in, under, over
and through the Subterranean Improvements. This easement also grants to the Developer the
right to park under the Easement Parcel and the right of ingress and egress and passage of
pedestrians and motor vehicles into, out of, on, over and across all driveways, entranceways, the
Easement Parcel, common service lanes, and sidewalks, now existing or hereafter constructed
on, under, over or about the Easement Parcel (the "Subterranean Easement").
C. Utility and Service Easements. Owner hereby grants and conveys to
Developer, such utility easements on, in, under, over, across and through the Easement Parcel as
deemed necessary by the Developer for the purposes of constructing, reconstructing,
excavating, installing, laying, inspecting, erecting, improving, removing, maintaining,
operating, repairing, replacing and restoring the Improvements and the Project, including,
installing, connecting to, disconnecting from, repairing or relocating any utility facilities;
piping; water, sanitary, storm, and sewer mains, lines and drains; utility lines, mechanical and
electrical conduits, appurtenances and all other related utilities and equipment deemed
necessary by the Developer for the Project (the "Utility Easement"). Developer, at its sole cost
and expense, shall have the right to install or cause to be installed all necessary connections
between the Improvements constructed or erected by it on, in, under, over, across and through
the Easement Parcel, and the water, sanitary and storm mains, lines and drains and mechanical?'
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and electrical conduits and other utilities, whether or not owned by the Owner. Owner shall
cooperate with Developer pursuant to Section 5(d) hereof to the extent that the Developer needs
the Owner to join in any agreements or documents for installation, connection to, disconnection
from, repair or relocation of any utilities facilities; piping; water, sanitary, storm and sewer
mains, lines and drains; utilities lines; mechanical and electrical conduits; connections or other
utility facilities necessary for the Improvements or the Project or required by the Developer,
including reasonable use of existing easements benefiting the Easement Parcel and adjoining
rights of way to the Easement Parcel. The cost of all utilities relating to the Improvements,
including, without limitation, gas, water, sewer and electric utilities and services shall be borne
by and shall be the sole responsibility of the Developer. Nothing in this Agreement shall relieve
the Developer from meeting minimum standards and obtaining all required permits, including
but not limited to City Right-of-Way and Building Department permits, the issuance of which
will not be unreasonably withheld.
The Developer shall not cut, disconnect, or disturb any of the Owner's existing utility
and/or service lines of any nature without the prior written consent of the Owner, which consent
shall not be unreasonably withheld. Prior to the work being performed, the Developer shall
identify the existing lines and notify the Owner, in writing, as to any required and/or anticipated
relocation of utility and/or service lines to perform the project work. Developer shall be
responsible for all costs associated with relocating any of Owner's utility and/or services lines of
any nature. Developer shall notify each utility company owning utility lines within the Easement
Parcel prior to the work being performed, to arrange for positive underground location,
relocation or support of its utility, where that utility may be in conflict with or endangered by
Developer's work and/or other activities. All costs of relocation of utility lines owned by utility
companies shall be the responsibility of the Developer.
Section 3. Access Easements; Interference. The easements provided in the
foregoing Section 2, shall not prohibit the Owner from entering upon the Easement Parcel, at
such Owner's sole cost and expense, to maintain, repair and replace the Right-of-Way, or as
otherwise necessary or appropriate within the scope of its governmental or proprietary authority,
provided, that such access shall not adversely interfere with the Improvements and shall not
prohibit a utility service provider who has the right to enter the Easement Parcel (a) pursuant to
utility easement agreements recorded prior to the Effective Date in the Public Records of Miami-
Dade County, Florida or (b) pursuant to all applicable laws and ordinances. The Owner agrees
not to unreasonably obstruct or interfere in any way with the free flow of pedestrian and
vehicular traffic over, under or above the Easement Parcel or with respect to the Project in any
manner which would adversely interfere with the Improvements, the Project and Owner's use of
the Easements and Easement Parcel except: (i) to the extent reasonably necessary for repair and
maintenance and traffic regulation; or (ii) in the event of an emergency (which for purposes of
this Section, means a situation or condition involving imminent injury to persons and /or
imminent and material damage to property).
Section 4. Legal Description. The legal descriptions of the Easement Areas are one
and the same as the legal description for the Easement Parcel, described and sketched in Exhibit
"A"
izv
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Section 5. Improvements.
a. Improvements. The Developer intends to own, develop and operate, as
part of the Project, those improvements as generally depicted in the Approved Plans, including,
without limitation, (i) a subterranean parking structure, including intra-block access, parking
spaces, ramps and related infrastructure, together with all appurtenant items and facilities within
a parking garage, such as, but not limited to, drive aisles, ramps, stairs, elevators, mechanical or
human-operated parking systems, etc.) under the Easement Parcel connecting the North Parcel
and the South Parcel underground (the "Improvements"). The term, "Improvements" shall
mean the aforedescribed Improvements, together with such utilities and facilities necessary to
construct and operate the foregoing.
b. Commencement of Construction. The Owner conceptually accepts the
Developer's proposed development as depicted in the Approved Plans, which describes
development of the Atlantic Hotels Project. However, given that the Improvements will be
constructed on, in, under, across and through the Easement Parcel, the Parties agree that specific
construction and development plans for the Improvements to be constructed on, above, under,
across and through the Right-of-Way, in addition to permit review through the City of Miami
Beach Building Department, shall be subject to the review and approval of the City of Miami
Beach Public Works Department ("CMBPWD"), to ensure the public safety and convenience,
and to limit any adverse impact to the Right-of-Way. Precedent to any construction,
excavation, demolition, restoration, testing or staging on the Easement Parcel, the Developer
shall submit to CMBPWD three (3) copies of certified engineering drawings showing the
relationship between the Improvements and the Easement Parcel and Right-of-Way.
Notwithstanding anything herein, all construction on, over, under and through the Easement
Parcel shall be in compliance with the City of Miami Beach Public Works Manual, the Florida
Building Code, and the Florida Fire Prevention Code, and other applicable laws. For purposes
of this agreement, "Commencement of Construction" when used in connection with.
construction of the Improvements shall mean the earlier of the filing of the notice of
commencement under Florida Statutes Section 713.13 or the visible start of work on the
Improvements, including on-site utility, excavation or soil stabilization work. In order to meet
the definition of"Commencement of Construction" herein, such filing of notice or visible start
of work must occur after the Developer has received a building permit and/or Right-of-Way
permit for the particular Improvements or portion thereof on which construction is proposed to
commence.
C. Performance Bond. Prior to the Commencement of Construction of the
Improvements, the Developer shall deliver, or cause its contractors to deliver, to Owner
executed performance bonds, or their equivalent (including without limitation, the right to
deliver alternative security pursuant to Section 713.23, Florida Statutes (2011)), to guarantee the
construction of the portion of the Improvements then being constructed by such contractor on
the Easement Parcel. The amount of such bond shall be equal to the proportionate share of the
applicable hard costs of construction of the Improvements then being constructed on the
Easement Parcel by such contractor. Each bond shall name the Owner as beneficiary thereof
and shall be issued by a surety reasonably acceptable to Owner. Developer shall have the right
from time to time to substitute or replace, or cause its contractors to substitute or replace, such
bonds as deemed necessary by the Developer for any portion of the Improvements on the
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Easement Parcel then being done. Any such performance bonds, or the equivalent, and
Developer's obligations thereunder, shall terminate upon approval of such work through
inspection by CMBPWD inspectors and payment of such work as required under the
Developer's construction contract. Notwithstanding anything in the foregoing, the Owner
acknowledges that all of the Improvements are not being constructed on the Easement Parcel
and the performance bond is not and shall not be based on the amount of the hard construction
costs of the entire Improvements or Project or any portion of the Improvements that are not
located on the Easement Parcel.
d. Cooperation. It is intended that the Improvements will be developed
pursuant to the Approved Plans. In connection with the construction of the Improvements and
the Project, the Owner will join in or consent to such permits, licenses, approvals, or other
administrative documents as provided in this Agreement, as may be necessary for the Developer
to develop and use the Easement Parcel in accordance with the Approved Plans and in a manner
otherwise permitted hereunder, provided that (i) such joinder or consent by the Owner shall be
at no cost to the Owner other than its costs of review; (ii) the location, terms, and form of any
such permits, licenses, approvals or other administrative documents shall be reasonably
acceptable to the Owner; and (iii) the Owner agrees to use best efforts to review and approve (or
disapprove with an explanation for such disapproval) any such requests within ten (10) business
days of the submittal of a permit application by the Developer (except in the event that the
approval of the City Commission is required under applicable laws and ordinances).
The Parties agree to cooperate with each other to the full extent practicable pursuant to
the terms and conditions of this Agreement. The Parties agree that time is of the essence in all
aspects of their respective and mutual responsibilities pursuant to the Agreement. The Owner
shall use reasonable efforts during the permitting and approval process in an effort to assist the
Developer in obtaining its permits and achieving its development and construction milestones for
the Project.
e. Designation of the Owner's Representative. The Owner hereby designates
the Public Works Director (the "Owner Representative"), who shall have the power, authority
and right, on behalf of the Owner, in its capacity as Owner hereunder, and without any further
resolution or action of the Commission or CMBPWD, to the extent allowed by applicable laws
and ordinances, to: (i) review and approve (if required) documents, plans, applications,
assignments and requests required or allowed by the Developer to be submitted to the Owner
pursuant to Section 5(b) or otherwise under this Agreement; (ii) consent to actions, events, and
undertakings by the Developer for which consent is required by the Owner; (iii) make
appointments of individuals or entities required to be appointed or designated by the Owner in
this Agreement; (iv) execute non-disturbance agreements and issue estoppel statements as
provided elsewhere in this Agreement; (v) execute any and all documents on behalf of the
Owner necessary or convenient to the foregoing approvals, consents, and appointments; (vi)
execute on behalf of the Owner any and all consents, agreements, applications or other
documents, needed to comply with applicable regulatory procedures and secure permits or other
approvals needed to accomplish the construction of the Improvements, and (vii) to amend this
Agreement to correct any typographical or non-material errors. The Owner's Representative
shall have the rights as set forth in clauses (i)-(vii) above and will be the primary contact for the
Developer in connection with this Agreement and any submissions, approvals, consents,
��
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joinders or inquiries with respect to this Agreement, the Right-of-Way, the Easements, the
Easement Parcel and the Improvements.
f. Ownership of Improvements. The Improvements, as well as all material
and equipment provided by the Developer or on its behalf which is incorporated into the
Improvements shall be and remain the property of the Developer as long as the Agreement
remains valid and in effect. Upon expiration or termination of this Easement, permanent
improvements become the property of the Owner, temporary improvements can be removed as
property of the Developer.
g. Ownership of Excavated Material. Sand and other excavated material (the
"Fill") in the easement area is the property of the Owner. Developer shall move the Fill from
the easement area to a location of Owner's choosing within the City limits at Developer's cost
and expense. Developer shall notify Owner at least thirty (30) calendar days in advance of the
excavation of the Fill so Owner can plan to receive the Fill. Within five (5) business days of the
30-day notice, the Owner shall confirm to Developer its intention to receive the Fill and provide
a specific location and delivery instructions for delivery of the Fill. If Owner cannot
accommodate the Fill within the City limits, Owner agrees to release ownership of the Fill to
Developer and Owner shall notify Developer as such within five (5) business days of the 30-day
advance notice listed above. If Owner releases ownership of the Fill as described above,
Developer shall use and/or relocate the Fill at its own cost and expense.
g. Noise and other applicable restrictions provided by law. Developer
acknowledges the applicability of City Code section 46-156, a copy of which is attached to this
Agreement as Schedule B, and incorporated herein by reference, and agrees to comply with the
requirements of such section. Execution of this Agreement does not provide Developer or its
Contractors with any exemption from this section or other ordinances, rules, regulations or laws
otherwise applicable to the Developer's work. Enforcement of this section, or other ordinances,
rules, regulations or laws, by Owner/City shall be as permitted by law.
Section 6. Maintenance of Improvements; Easements.
a. Except as specifically set forth in this Agreement, the Developer shall be
responsible to maintain, repair and replace the Improvements as deemed necessary in the
reasonable discretion of the Developer and to maintain and keep in clean condition the Easement
Parcel. The aforedescribed obligations shall terminate, automatically and without further action
by the Parties, as to all or any portion of the Easements, at such time as, and to the extent that
repair, maintenance and replacement of such Improvements (or portion thereof) or Easement
Parcel (or portion thereof) is accepted by any utility service provider or governmental entity.
Notwithstanding anything herein to the contrary, the Owner shall be responsible to maintain,
repair and replace the Right-of-Way, it being expressly understood that the Developer shall have
no obligation to maintain, repair or replace the Right-of-Way, except that should any aspect of
the Improvements or Project result in or cause damage to the Right-of-Way, Developer shall be
responsible for the repair or replacement of such Right-of-Way, to the design, specifications and
satisfaction of Owner. Owner shall not be responsible for any damage caused to the Easement
Parcel or Improvements as a result of its construction, reconstruction, maintenance or repair of
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the right-of-way and public utilities, except due to the negligence of Owner, Owner's agents,
employees and contractors.
b. At all times during the Term, the Developer, at its sole cost and expense, shall
properly and adequately maintain the Easement Parcel in a safe, clean and neat condition, and
shall make all repairs necessary to keep the Easement Parcel in such condition. The Developer,
at its sole cost and expense, shall maintain the Easement Parcel in a neat and clean condition,
free from any and all garbage, waste materials, or rubbish caused by operations of the
Improvements. If all or any portion of the Easement Parcel is not kept in a condition reasonably
acceptable to Owner, Owner and/or its Owner Representative shall notify the Developer, in
writing, of any deficiency(ies), and Developer shall correct such deficiency(ies) within 48 hours
of said notice. In the event Developer fails to timely comply with the foregoing obligation,
Owner shall have the right (but not the duty), at Owner's sole option and discretion, to correct
the deficiency(ies), in which event Developer shall promptly reimburse Owner for the
reasonable costs incurred by Owner in connection therewith, but in no event later than thirty
(30) days following receipt of an invoice thereof.
c. Repairs. Developer will promptly repair (or cause to be repaired) any
damages to the subsurface portion (or portions) of the Easement parcel, and/or to any and all
portion(s) of the remainder of Owner's property outside of the Easement Parcel, caused by,
through, under, arising out of and/or resulting from the work performed by Developer,
Developer's General Contractor for the Improvements, or any of their respective employees,
subcontractors, laborers, or material suppliers. Upon receipt of written notice from Owner,
Developer shall perform such repairs within a reasonable timeframe, but commencing and
completing such repairs not later than ten (10) business days after written notice thereof.
However, in the event of an emergency, affecting the safety of persons or property, Developer
shall immediately commence repairs to mitigate the damages caused therefrom at its sole cost
and expense.
If such repairs will require additional time beyond the 10 business days set forth herein,
Developer shall provide prompt written notice to Owner and/or its Owner Representative of the
additional time required for completing such repairs and the basis therefor.
If Owner and/or its Owner Representative determine such time extension or delay in
performing repairs beyond 10 business days is unreasonable and/or if Developer fails to perform
any of its obligations under this Section 6, Owner shall have the right (but not the duty), to
correct any condition and/or to make repairs, and the reasonable costs thereof shall promptly be
reimbursed and/or paid by Developer after written notice of the same, but no later than thirty
(30) days after receipt of written notice thereof. Notwithstanding the foregoing provisions of this
Section 6, Developer shall not be responsible for repairing any damage to the subsurface portion
(or portions) of the Easement Parcel and/or to the remainder of Owner's property, as to the
Easement Parcel, to the extent it is caused by the gross negligence, recklessness or willful
misconduct of Owner, and/or its officers, employees, or contractors; and, as to the remainder of
Owner's property, to the extent it is caused by the gross negligence, recklessness or willful
misconduct of Owner, its officers, employees, contractors, agents, licensees, invitees, and guests
as a result of their (respective) use of the property.
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Section 7. Operations.
a. Non-Interference. The Developer's development and construction of the
Project and its use and operation of the Easement Parcel shall not materially and adversely
interfere with the Owner's customary and reasonable operation of the Right-of-Way, unless, and
to the extent permitted in, the Developer obtains a Right-of-Way permit. The Developer may
request temporary interruption of the pedestrian and vehicular traffic of the Right-of-Way and in
the Easement Parcel by the Owner for construction, maintenance or repairs to the Improvements
and the Owner agrees to reasonably cooperate with such interruption in order to enable such
construction, maintenance or repairs, and such interruption, if at the request of the Developer for
purposes of construction, maintenance or repairs of the Improvements. Similarly, the Owner's
use of the Right-of-Way shall not materially and adversely interfere with the Developer's
development and construction of the Improvement and the Project (including, the development
of the portions of the Project adjacent to the Right-of-Way and Easement Parcel) and its use and
operation of the Easement Parcel and the Improvements, unless prior arrangements have been
made in writing between the Parties or as provided in section 2, except in cases of emergency or
to protect the public health, safety and welfare.
Section 8. Consideration.
a. The consideration and terms of this Easement Agreement are as set forth
in Resolution 2012-28092 of the City of Miami Beach, attached as Exhibit "D".
Section 9. Construction Liens. From and after the Commencement of Construction
and until the expiration or earlier termination of this Agreement, each party will discharge any
and all obligations incurred by such Party to third parties, it being understood and agreed that the
Developer shall have the right to withhold any payment (or to transfer any such lien to a bond in
accordance with applicable Florida law) so long as it is in good faith disputing liability therefor
or the amount thereof.
Section 10. Termination. The Easements ar e g ran ted a n d this Agreement s h ll
continue until such time as the Improvements encroaching onto the Right-of-Way or constructed
in, on, under, across and through the Easement Parcel are demolished, removed or reach the end
of their life. If after the Completion Date, the Easement Parcel permanently ceases to be used for
the purposes set forth herein, the Easements (or such applicable portion thereof that has
permanently ceased operation) shall terminate. No temporary vacancy during the term of this
Agreement (meaning vacancies of substantially all of the Easement Parcel or Improvements for a
period of more. than three (3) years or non-occupancy during any construction of the
Improvements shall be deemed a permanent cessation of use under this Section).
Notwithstanding the foregoing, the Developer shall have the right to terminate this Agreement
upon thirty (30) days prior written notice to the Owner. Notwithstanding the foregoing, Section
11 on Indemnification shall survive the termination of this Agreement.
Section 11. Insurance; Indemnification. a. DEVELOPER, shall indemnify and
hold harmless OWNER, its officers and employees, from any costs, liabilities, claims, losses,
and damages (including, without limitation, reasonable attorneys' fees and disbursements at the
trial level and all levels of appeal), whether suit is instituted or not, relating to death of or injury
Al
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to persons, or loss of or damage to property, resulting from, arising out of, or incurred in
connection with the existence and use of the EASEMENT and the EASEMENT AREA by
DEVELOPER, and/or its officials, employees, contractors, and agents; and including, but not
limited to, any violation by the DEVELOPER, and/or its officials, employees, contractors, and
agents, of any laws, rules, regulations or ordinances regarding hazardous materials, hazardous
wastes, hazardous substances, solid waste, or pollution, whether now existing or hereafter
enacted or promulgated, as they may be amended from time to time ("Environmental Laws");
any presence, release, or threat of release of hazardous materials, hazardous wastes, hazardous
substances, solid waste or pollution at, upon, under, from or within the EASEMENT AREA by
DEVELOPER, and/or its officials, employees, contractors, and agents; the failure of
DEVELOPER, and/or its officials, employees, contractors, and agents, to duly perform any
obligations or actions required to be taken under any Environmental Laws (including, without
limitation, the imposition by any governmental authority of any lien or so-called "super priority
lien" upon the EASEMENT AREA); any clean-up costs; liability for personal injury or property
damage or damage to the environment; and any fines, penalties, and punitive damages, or any
fines or assessments incurred by or claimed against OWNER and arising out of the failure of
DEVELOPER, and/or its officials, employees, contractors, and agents, to comply with
Environmental Laws in connection with the use of the EASEMENT and the EASEMENT AREA
by DEVELOPER, and/or its officials, employees, contractors, and agents.
b. DEVELOPER shall also, as part of the indemnification provided to OWNER pursuant
to this Section, defend any and all claims asserted against OWNER resulting from, arising out of,
or incurred in connection with the existence and/or use of the EASEMENT and the EASEMENT
AREA by DEVELOPER, and/or its officials, employees, contractors, and agents. DEVELOPER
shall be entitled to select counsel of DEVELOPER'S choice to defend the claim; provided,
however, that if the DEVELOPER elects to retain outside counsel, then such counsel shall first
be approved by OWNER'S City Attorney, which approval shall not be unreasonably
conditioned, withheld, or delayed; and, provided further, that the OWNER shall be permitted, at
its cost and expense, to retain independent counsel to monitor the claim proceeding. The duty to
defend set forth in this subsection shall be severable and independent from the indemnity
obligations otherwise set forth in this Section, to the extent that if any other provisions and/or
subsections of this Section are deemed invalid and/or unenforceable, this duty to defend
provision shall remain in full force and effect.
c. The indemnity and defense obligations set forth in this Section shall survive the
expiration of the Term or any termination of this EASEMENT regarding any and all costs,
liabilities, claims, losses, and damages (including, without limitation, reasonable attorneys' fees
and disbursements at the trial level and all levels of appeal), whether suit is instituted or not,
relating to death of or injury to persons, or loss of or damage to property, resulting from, arising
out of, or incurred in connection with the existence and use of the EASEMENT and the
EASEMENT AREA by DEVELOPER and/or its officials, employees, contractors, and/or agents,
prior to the expiration of the Term or other termination of the EASEMENT, whether or not such
costs, liabilities, claims, losses, and/or damages were known or unknown, accrued or unaccrued,
as of the date of expiration of the Term or other termination of the EASEMENT. For purposes
of example only and without limiting the generality of the foregoing, costs, liabilities, claims,
losses, and/or damages which are unknown or unaccrued as of the date of expiration of the Term
{26781517;1)
Page 10 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
or other Termination of the EASEMENT could include, but not be limited to, latent construction
defects and/or environmental remediation claims.
Developer shall also indemnify and hold harmless the Owner and its officers, employees,
agents and instrumentalities from any and all liability, losses or damages, including attorneys'
fees and costs of defense, which the Owner or its officers, employees, agents or instrumentalities
may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or
nature arising out of, relating to or resulting from the performance of this Agreement by the
Developer or its employees, agents, servants, partners principals or subcontractors. The
Developer shall pay all claims and losses in connection therewith and shall investigate and
defend all claims, suits or actions of any kind or nature in the name of the Owner, where
applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's
fees which may issue thereon. The Developer expressly understands and agrees that any
insurance protection required by this Agreement or otherwise provided by the Developer shall in
no way limit the responsibility to indemnify, keep and save harmless and defend the Owner or its
officers, employees, agents and instrumentalities as herein provided.
d. Insurance. See Schedule A attached to this Agreement and incorporated by reference
as if fully set forth herein.
Section 12. Condemnation. Should all or part of the Easement Area be taken by
governmental action, the rights of the affected parties shall be determined by applicable Florida
law.
Section 13. Developer's Right to Transfer. During the term of this Agreement, the
Developer shall have the right and privilege from time to time to sell, assign or otherwise
transfer all or any portion of its rights under this Agreement, subject to approval by Owner,
which shall not be unreasonably withheld, to such other persons, firms, corporations, general or
limited partnerships, unincorporated associations, joint ventures, estates, trusts, any Federal,
State, County or Municipal government bureau, department or agency thereof, or any other
entities as the Developer shall select; and subject further, however, to the following:
a. In the event of a proposed transfer of all of the Developer's rights
hereunder, the Developer shall deliver written notice to the Owner of such transfer, together
with a copy of the transfer agreement (if applicable) and the address for the transferee
thereunder, after which Owner shall have fourteen days to approve or deny such transfer, with
written notice of its decision to Developer. If no action is taken by Owner within fourteen days
the proposed transfer is automatically deemed to be approved by the Owner;
b. Upon the transfer by the Developer, the Developer shall be released and
discharged from all of its duties and obligations hereunder which pertain to this Agreement for
the then unexpired term of this Agreement;
C. Any sale, assignment or transfer of all or any part of the Developer's
interest in this Agreement and the Property shall be made expressly subject to the terms,
covenants and conditions of this Agreement, and such assignee or transferee shall expressly
assume all of the obligations of the Developer under this Agreement applicable to that portion
126781517;1)
Page 11 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
of the Agreement being sold, assigned or transferred, and agree to be subject to all conditions
and restrictions to which the Developer is subject, but only for matters accruing while such
assignee or transferee holds, and only related to, the sold, assigned, or transferred interest.
However, nothing in this subsection or elsewhere in this Agreement shall abrogate the
Developer's obligation and/or right to payment of any sums due to the Owner which accrued
prior to the effective date of such transfer, and the Owner shall always have the right to enforce
collection of such sums due in accordance with the terms and provisions of this Agreement; and
d. The Developer shall not have the right to assign this Agreement or its
rights and obligations under this Agreement to a party that is on the Miami-Dade County
Delinquent Vendor List or Disbarment List, or its then equivalent, or any third party, without
the prior consent of the Owner.
Section 14. Owner's Right to Transfer. During the term of this Agreement, the
Owner's right to transfer the Right-of-Way and the Easement Parcel or any portion thereof and to
assign any of its rights and obligations under this Agreement shall be subject to the following:
a. Owner shall deliver written notice to Developer of such transfer, together
with a copy of the transfer agreement (if applicable) and the address for the transferee
thereunder;
b. Upon the transfer by Owner pursuant to the terms of this Agreement,
Owner shall be released and discharged from all of its duties and obligations hereunder from
I
and after the effective date of such transfer and only those which pertain to the portion of the
Right-of-Way or Easement Parcel transferred;
C. Any sale, assignment or transfer of all or any part of Owner's interest in
the Agreement and/or to the Right-of-Way or Easement Parcel, or any p ortion thereof shall be
made expressly subject to the terms, covenants and conditions of this Agreement, and such
assignee or transferee shall expressly assume all of the obligations of Owner under this
Agreement applicable to such portion being sold, assigned or transferred, and agree to be
subject to all conditions and restrictions and obligations to which Owner is subject, but only for
matters accruing while such assignee or transferee holds, and only related to, the sold, assigned,
or transferred interest; and
d. Any successor, assignee or transferee of Owner shall be prohibited from
using the Right-of-Way, the Easement Parcel or the Improvements or any portion hereof for any
of the prohibited uses as described in Section 12(h) above or in a manner that will adversely
impact Developer, the Easement Parcel, the Improvements or the Project.
Section 15. Owner's Representations and Warranties. Owner represents and
warrants to Developer as follows:
a. Owner is the owner of the Right-of-Way and the Easement Parcel, and has
the full right, title (free and clear of any liens), power and authority to enter into this Agreement
and to encumber the Right-of-Way and the Easement Parcel as described herein without the
need for joinder or consent of any third party;
{26781517;1}
Page 12 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
I
i
b. Owner will make available the Right-of-Way (subject to the terms herein)
and the Easement Parcel to the Developer as contemplated in this Agreement;
C. Owner has full power and authority to enter into this Agreement and
perform in accordance with its terms and provisions and that the parties signing this Agreement
on behalf of the Owner have the authority to bind the Owner and to enter into this transaction
and the Owner has taken all requisite action and steps to legally authorize it to execute, deliver
and perform pursuant to this Agreement; and
d. Neither this Agreement, nor the easements, covenants, restrictions,
obligations or other provisions set forth herein, are prohibited by, in contradiction of, or will
result in a breach or default under, any agreements, covenants, restrictions or easements
applicable to Owner or the Right-of-Way or the Easement Parcel.
The Developer acknowledges that in accordance with Florida Statutes Section 125.411(3)
(1990), the Owner does not warrant the title or represent any state of facts concerning the title to
the Right-of-Way and the Easement Parcel, except as specifically stated in this Agreement.
Section 16. Developer's Representations and Warranties. Developer hereby
represents and warrants to the Owner that it has full power and authority to enter into this
Agreement and perform in accordance with its terms and provisions and that the parties signing
this Agreement on behalf of the Developer have the authority to bind the Developer and to enter
into this transaction and the Developer has taken all requisite action and steps to legally
authorize it to execute, deliver and perform pursuant to this Agreement.
Section 17. Not a Public Dedication. Except as may be specifically and explicitly set
forth herein, nothing herein contained shall be deemed to be a gift or dedication of any portion of
the Right-of-Way or Easement Parcel to the general public or for the general public or for any
public purposes whatsoever, it being the intention of the Parties that this Agreement shall be
strictly limited to and for the purposes herein expressed. Notwithstanding anything to the
contrary contained herein, Developer shall have the right to prohibit or limit any solicitation,
petition signing, distribution of literature, collection of money, giving of speeches, leafletting,
picketing, carrying of signs, canvassing, demonstrations, or similar activities within the confines
of the Improvements lying within the Easement Parcel.
Section 18. Breach Shall Not Permit Termination. No breach of this Agreement
shall entitle the Owner or Developer to cancel, rescind or otherwise terminate this Agreement,
but such limitation shall not affect in any manner any other rights or remedies which Owner or
Developer may have hereunder by reason of any breach of this Agreement.
Section 19. Defaults; Remedies; Liability.
a. Defaults and Remedies. This Agreement may be enforced by either Party
by any action available at law or in equity, including, but not limited to injunctive relief and
specific performance. In the event that either Party defaults in the performance of any of its
obligations pursuant to this Agreement, the non-defaulting Party shall be entitled to cure such
default. Any and all expenses incurred by the Party in curing such default, together with
interest thereon calculated at the lesser of i a rate of interest equal to fifteen percent
( ) q pe c t per
{26781517;1} �W4
Page 13 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
annum, or (ii) the highest rate permitted by Florida law, shall be payable by the defaulting Party
within thirty (30) days of written demand therefor by the Party curing the default to the
defaulting Party. Interest shall- accrue from and after the defaulting Party's receipt of the
demand for payment by the Party curing the default. The failure to enforce any of the terms or
provisions of this Agreement, however long continued, shall in no event be deemed a waiver of
the right to enforce the same thereafter as to the same breach or violation, or as to any other
breach or violation occurring prior to or subsequent thereto. The Parties acknowledge and agree
that the pursuit by a Party of any one remedy shall not operate as an election of remedies
prohibiting the pursuit of other remedies established by this Agreement. The prevailing party to
any action or suit pertaining to or arising out of this Agreement shall be entitled to recover, in
addition to costs and disbursements, allowed by law, such sum as the Court may adjudge to be
reasonable for the serves of his attorney.
Notwithstanding anything in the foregoing to the contrary, a "Default" by any
art with respect to an of its obligations hereunder shall be deemed to exist only in the event
party p Y g Y
that the non-defaulting party notifies the defaulting party in writing specifically describing the
nature of the alleged failure by the defaulting party under this Agreement, and only in the event
that the defaulting party has not cured such failure within thirty (30) days of the defaulting
party's receipt of such written notice from the non-defaulting party setting forth with specificity
the nature of such breach (or if such default cannot reasonably be cured within thirty (30) days,
then only if the defaulting party shall fail to commence action within said thirty (30) day period
intended to result in cure of such failure, and thereafter diligently pursue same to completion).
b. Limitation of Liability of the Owner. Owner shall not be liable to the
Developer for any incidental or consequential loss or damage whatsoever arising from the rights
of the Owner hereunder.
C. Limitation of Liability of the Developer. Developer shall not be liable to
the Owner for any incidental or consequential loss or damage whatsoever arising from rights of
the Developer hereunder. Excluding damage to the Right-of-Way or the Easement Area caused
by the Developer, any liability of the Developer hereunder is limited to the fair market value of
the Improvements made by the Developer on the Easement Parcel.
Section 20. Term/Amendment. The Easements set forth in this Agreement shall be
99 years in duration unless otherwise specifically provided (such as the Temporary Construction
Easement, which is intended to have the limited duration expressed in paragraph 2.a). The
restrictions, covenants and conditions set forth in this Agreement shall be binding upon and
enforceable against the Developer and the Owner for a period of twenty (20) years from the date
this Agreement is filed in the Public Records of Miami-Dade County, Florida, after which time,
such restrictions, covenants, and conditions shall be automatically extended for successive
periods of twenty (20) years each, until the maximum easement term of 99 years is reached. In
the event any law prohibits any such restrictions, covenants, and/or conditions from being
enforceable for a period in excess of twenty (20) years, or beyond any other stated period, the
Developer is granted a limited and specific power of attorney, coupled with an interest, for the
sole purpose to re-record this Agreement at any time and from time to time for the purpose of
extending the enforceability of same as contemplated by this Section, as long as the total
easement term of 99 years is not exceeded without further written agreement of the parties.
{26781517;1}
Page 14 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
Section 21. Estoppel. Each Party shall, at the request of the other Party, execute and
deliver an acknowledgment in such reasonable form as may be requested stating that the
Easements and covenants set forth in this Agreement are in full force and effect (if such is the
case and if not, the specific areas of relinquishment of same), that said Party knows of no
violation of this Agreement (if such is the case and if not, what violations exist), that the
requesting Party is in compliance with this Agreement (if such is the case and if not, the specific
areas of non-compliance), and such other reasonable information as requested by the other Party.
Section 22. Entire Amement. This Agreement constitutes the entire agreement
between the Parties hereto with respect to the Easements and it supersedes all understandings or
agreements between the Parties existing prior to the Effective Date, except as provided in
Section 8. Any modification to this Agreement shall be required to be in writing and executed
by the Parties.
Section 23. Binding Effect/Rights of Occupants. All terms and provisions of this
Agreement are binding upon the Parties hereto and their respective successors and assigns.
Further, all terms and provisions of this Agreement and all rights, privileges, benefits and
burdens created hereunder are covenants running with the lands described herein, binding upon
and inuring to the benefit of the Parties hereto, their respective heirs, successors, successors-in-
title, legal representatives and assigns. With respect to the Easements created by this Agreement,
Developer shall be entitled to designate from time to time which, if any, of its Occupants (as
hereinafter defined) shall be entitled to utilize and enjoy such Easements and to create such rules
and regulations as deemed necessary or appropriate by Developer, including the right to regulate
the hours and days for access to the Easement Parcel. No independent rights shall be created by
this Agreement as to any Occupant, except with the consent or approval of the Developer. For
purposes of this Agreement, the term "Occupant"shall mean the Developer or any of its tenants,
subtenants, assignees, concessionaires, licensees, invitees, contractors, agents or licensees who,
from time to time, are entitled to use or occupy all or any portion of the Easement Parcel under
an agreement, lease, sublease, assignment, concession, license, or other similar agreement with
the Developer.
Section 24. Construction. Each Party hereto hereby acknowledges that all Parties
hereto participated equally in the drafting of this Agreement and that, accordingly, no court
construing this Agreement shall construe it more stringently against one party than the other.
Section 25. Execution and Counterparts. This Agreement may be executed in as
many counterparts as may be required and it shall not be necessary that the signature of, or on
behalf of, each party, or that the signatures of all persons required to bind any party, appear on
each counterpart; it shall be sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of such counterparts.
All counterparts shall collectively constitute a single agreement.
Section 26. Governing LawNenue. . This Agreement shall be governed by and
construed under the laws of the State of Florida. Venue for any action arising out of this
Agreement shall be Miami, Florida [or Miami-Dade County, Florida].
{26781517;1}
Page 15 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
Section 27. Notices. Any notices which may be permitted or required hereunder shall
be in writing and shall be deemed to have been duly given as of the date and time the same are
received at the addressee's address set forth below, whether same are personally delivered,
mailed by United States Postal Service, postage prepaid by registered or certified mail, return
receipt requested, delivered by Federal Express or other overnight delivery service from which a
receipt may be obtained, and addressed as follows:
To Owner: City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
With a copy to: Director of Public Works
1700 Convention Center Drive
Miami Beach, Florida 33139
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
To Developer: The Faena Group
3201 Collins Avenue
Miami Beach, FL 33139
Attention: Sergio Jalife
With a copy to: Akerman Senterfitt
One SE Third Avenue, 25th Floor
Miami, Florida 33131
Attention: Neisen Kasdin, Esq.
or to such other address as either party hereto shall from time to time designate to the other party
by notice in writing as herein provided.
Section 28. 'Time. Time is of the essence of this Agreement. Notwithstanding
anything in the foregoing to the contrary, in the event that the time for performance of any event
or obligation under this Agreement ends on a Saturday, Sunday, or legal holiday, then the date
for performance of such event or obligation shall automatically extend to the next day that is not
a Saturday, Sunday or legal holiday.
Section 29. Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver of the breach of any provision of this Agreement shall be
construed as a waiver of any preceding or succeeding breach of the same or any other provision
of this Agreement.
Section 30. Section Headings. The paragraph and sub-paragraph headings as herein
used are for convenience or reference only and shall not be deemed to vary the content of this
Agreement or the covenants, agreements, representations and warranties herein set forth or limit
the provisions or scope of any section herein.
126781517;1}
Page 16 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
Section 31. Severability. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations.
If any provision of this Agreement or the application thereof to any person or circumstance shall,
for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement
and the application of such provision to other persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
Section 32. Successors and Assigns. This Agreement runs with the land and shall be
binding upon and shall inure to the benefit of the parties hereto, and their respective successors
and assigns, subject to the rights of the Parties to approve successors and assigns.
Section 33. Relationship of the Parties. This Agreement does not create the
relationship of principal and agent or of mortgagee and mortgagor or of partnership or of joint
venture or of any association between the Parties, the sole relationship between the Parties being
that of the Owner and the Developer.
Section 34. Recording. This Agreement shall be recorded among the Public Records
of Miami-Dade County, Florida, at the sole cost of the Developer.
Section 35. Consents. Whenever in this Agreement the consent or approval of the
Owner or the Developer is required, such consent or approval, with respect to the City as the
Owner shall be made by the City Manager or Owner's Representative or their designees on
behalf of the Owner and: (a) shall not be unreasonably or arbitrarily withheld, conditioned, or
delayed unless specifically provided to the contrary, and shall not require a fee from the party
requesting same; (b) shall not be effective unless it is in writing; and (c) shall apply only to the
specific act or transaction so approved or consented to and shall not relieve the Developer or the
Owner, as applicable, of the obligation of obtaining the other's prior written consent or approval
to any future similar act or transaction.
Section 36. Brokers. The Parties hereby represent and agree that no real estate broker
or other person is entitled to claim a commission as a result of the execution and delivery of this
Agreement.
Section 37. Protest Payments. If at any time a dispute shall arise as to any amount or
sum of money to be paid by the Developer to Owner, if any, under the provisions of this
Agreement, in addition to the `rights set forth in Section 19 above, the Developer shall have the
right to make payment "under protest" and such payment shall not be regarded as a voluntary
payment, and there shall survive the right on the part of the Developer to seek the recovery of
such sum, and if it should be adjudged that there was no legal obligation on the Developer to pay
such sum or any part thereof, the Developer shall be entitled to recover such sum or so much
thereof as it was not legally required to pay under the provisions of this Agreement; and if at any
time a dispute shall arise between the parties hereto as to any work to be performed by either of
them under the provisions of this Agreement, the party against whom the obligation to perform
the work is asserted may perform such work and pay the cost thereof "under protest" and the
performance of such work shall in no event be regarded as a voluntary performance and there
shall survive the right upon the part of said Developer and/or the Owner to seek the recovery of
the cost of such work, and if it shall be adjudged that there was no legal obligation on the part of
ow
{26781517;11
Page 17 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
i
said Developer and/or the Owner to perform the same or any part thereof, said Developer and/or
the Owner shall be entitled to recover the cost of such work or the cost of so much thereof as the
Developer or the Owner was not legally required to perform under the provisions of this
Agreement.
�I
[Remainder of Page Intentionally Blank]
{26781517;1}
Page 18 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
IN WITNESS WHEREOF, the Owner has caused this Agreement to be executed in its
name by the City Mayor; as authorized by the City Commission, and the Developer has caused
this Agreement to be executed by its duly authorized representative all as of the Effective Date.
OWNER(Grantor):
CITY OF MIAMI BEACH
By:
May, i y of iami each
Attest:
Citf Clerk, C' each
Approved as to form and _ •''••• '�_!9e
Ian ge d for ex cu ion
01
it Att (y(ey Da
STATE OF FLORIDA CH
COUNTY OF MIAMI-DADE
The foregoing instrument was knowledged before me this day of ,
2013, by who is personally known to me or I&& produced
as identification.
Car5yyPublic in and or t Cou
State mentioned above ,.�, ��•• UUAM R.HAIFIQD
MY co MMISSION 4 EE 844865
EXPIRES, 18 2017
(AFFIX NOTARY SEAL) My Commission Expire own
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
(26781517;1)
Page 19 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
Signed in the presence of: DEVELOPER(Grantee)
COLLINS 33 0 LLC, a Foreign Limited Liability
Corporatio
By: -
Name: Sergio Jalife
Print Name: Title: Manager, Collins 3300, LLC
yak
I
Print Name: A4thew &'tves
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this `2-01 day of
2013, by Sergio Jalife, who is personally known tome or has produced :P-(,-
as identification.
,►� �� CLAUDIA P RAMIREZ
�..Y C of OillSSION#EE13"14 Notary Public in and for the Count and
EXPIRES September 28,2015 State mentioned above
F'
(407)398-0153 IoridallotaryServk*-can
(AFFIX NOTARY SEAL) My Commission Expires 9 - z 5 - zo )S
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
(26781517;1)
Page 20 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
Signed in the presence of: DEVELOPER (Grantee)
3420 CO INS AVENUE, LLC, a Foreign
Limite ;ity o ation
B _...
Name: Sergio Jalife
Print Name:
L la___6104
Title: Manager, 3420 COLLINS AVENUE, LLC
f
Print Name: A
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of ''��, ,
2013, by Sergio Jalife, who is personally known to me or has produced f-
as identification.
Notary Public in an
CLAWNj
EE 134 for the ounty and
s 5 State mentioned above
A., t._•:: `� 28,2015
�� t�IQ�r i�
....._.�._......r.e.... c:v ryUrvice.C"
(AFFIX NOTARY SEAL) My Commission Expires -Zg-zo i�r
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
126781517;1)
Page 21 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
SCHEDULE A - INSURANCE - CONSTRUCTION
The Developer and Contractor shall furnish to Risk Management Division, Department of
Human Resources, City of Miami Beach, 1700 Convention Center Drive, 3 d Floor, Miami
Beach, Florida 33139, Certificate(s) of Insurance, prior to the commencement of construction,
which indicate that insurance coverage has been obtained that meets the requirements as outlined
below:
A. Commercial General Liability on a comprehensive basis, including Contractual
Liability, Products/Completed Operations, XCU, and Pollution Liability in an
amount not less than $1,000,000 combined single limit per occurrence for bodily
injury and property damage. City of Miami Beach must be shown as an
additional insured with respect to this coverage.
B. Excess/Umbrella Liability, in amount not less than $5,000,000 combined single
limit, per occurrence for bodily injury and property damage.
All deductibles for insurance required in this Agreement are the responsibility of the
Developer and Contractor.
The insurance coverage required shall include those classifications, as listed in standard liability
insurance manuals, which most nearly reflect the operations of the vendor.
All insurance policies required above shall be issued by companies authorized to do business
under the laws of the State of Florida, with the following qualifications:
The company must be rated no less than "B" as to management, and no less than
"Class V" as to financial strength, by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject
to the approval of the City Risk Management Division.
or
The company must hold a valid Florida Certificate of Authority as shown in the
latest "List of All Insurance Companies Authorized or Approved to Do Business
in Florida" issued by the State of Florida Department of Insurance and are
members of the Florida Guaranty Fund.
Certificates will indicate no modification or change in insurance shall be made without thirty
(30) days in advance notice to the certificate holder.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
1700 CONVENTION CENTER DRIVE
3rd FLOOR
MIAMI BEACH, FL 33139
Compliance with the foregoing requirements shall not relieve the Developer and Contractor of
their liability and obligation under this section or under any other section of this Agreement.
(26781517-11)
Page 22 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
Schedule B—City Code Section 46-156 (relevant portions)
Requirements and procedures. The city manager is authorized to issue a temporary permit to
allow noise when produced by a temporary use or activity as provided in this section. The city
manager may prescribe any reasonable conditions necessary to minimize any adverse effect upon
the community. A permit granted under this article shall contain all conditions upon which the
permit has been granted, including the period of time for which the permit has been granted.
Such relief may be granted in the following situations:
(1) Code compliance in progress. When an applicant is utilizing best efforts to comply with the
noise restrictions in this article, but additional time is required for the applicant to modify his
activity to comply and no reasonable alternative is available to the applicant, such permits may
be granted for a period of time not to exceed ten consecutive days.
(2) Construction. When construction activities pursuant to a valid building permit cannot be
carried out in a manner which would comply with section 46-152, notwithstanding that all
equipment is operated in accordance with manufacturer's specifications, is in good repair and
utilizes all noise baffling methods as specified by the manufacturer, such activities shall occur
only as follows:
b. Between the hours of 8:00 a.m. and 6:00 p.m. on weekdays and 10:00 a.m. and
4:00 p.m. on Saturdays in areas zoned as RM-1, RM-2, RM-3, RM-PRD, RPS-1, RPS-2, RPS-3,
RPS-4, RMPS-1, RS-1, RS-2, RS-3, RS-4, RO, TH and in any exclusively residential zoning
district not otherwise specified in this subsection and within 300 feet of any of these zoning
districts. On Sundays and national holidays, construction shall not be permitted before 10:00
a.m. or after 4:00 p.m. and construction noise that violates section 46-152 shall not be permitted
between 10:00 a.m. and 4:00 p.m. in the zoning districts set forth in this subsection or within 300
feet thereof, except that in buildings with occupied apartment units, as defined in section 114-1
of this Code, no construction shall be allowed on Sundays or national holidays. However, the
city manager may authorize any necessary construction activities to occur earlier and/or later
than as otherwise provided in this subsection based upon a finding that:
1. There are no reasonable alternatives;
2. There are no prior code violation adjudications or fines and no pending construction
noise violation cases against the property owner, contractor, or construction site; and
3. There is a significant community need, public purpose or benefit.
The work authorized by the city manager may be conditioned upon reasonable notice to
surrounding property owners and tenants. Permits issued pursuant to such authorization shall not
exceed three consecutive days.
c. The issuance of a temporary permit is a privilege and does not constitute a right or
expectation that said permit will remain in effect. Any permits issued pursuant to subsections
(2)a. and b., shall not constitute or be deemed precedent for the granting of any future permits.
{26781517;1}
Page 23 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
I
d. Notwithstanding the provisions of subsections (2)a. and b., temporary permits shall be subject
to authorization by the building official under emergency circumstances or when the building
official determines that for reasons of technical necessity work earlier or later than the time
frames specified in subsections 2 a. b. or on an day (including Sundays or national holidays) is
p O � Y Y ( g Y Y )
required. The work authorized by the building official pursuant to this subsection shall be
conditioned upon reasonable notice to surrounding property owners and tenants.
(b) Violation of temporary permit. Failure to comply with any condition of a temporary permit
issued pursuant to this section shall constitute a violation and shall result in enforcement
procedures and penalties as set forth in sections 46-159 and 46-160
(c) Revocation of temporary permits. Any temporary permit may be immediately revoked
pursuant to the procedures set forth in sections 102-383 and 102-385 if the city manager finds
that an emergency condition exists involving serious danger to the public health, safety, or
welfare; if the permit holder failed to disclose or misrepresented material information in the
permit application or in the permit application process; or that there was a failure to comply with
any condition of a particular temporary permit.
126781517-,1)
Page 24 of 24,PERPETUAL SUBSURFACE EASEMENT AGREEMENT
Exhibit A
STONER &ASSOCIATES, 11110.
SURVEYORS-MAPPERS
4341 S.W. 62nd Avenue Florida Licensed Survey Tel. (954) 585-0997
Davie, Florida 33314 and Mapping Business No.6633 Fax (954) 585-3927
RECORDING AREA
RIPTI •
LEGAL DESC ON OF.
A SUBTERRANEAN EASEMENT
LYING IN SECTION 26, TOWNSHIP 53 SOUTH, RANGE 42 EAST
CITY OF MIAMI BEACH, MIAMI-DADE COUNTY, FLORIDA
A SUBTERRANEAN EASEMENT BEING A PORTION OF SECTION 26, TOWNSHIP 53 SOUTH, RANGE 42 EAST,
LYING WITHIN THE CITY OF MIAMI BEACH, MIAMI—DADE COUNTY, FLORIDA; ALSO, BEING UNDER 34th STREET, A
PUBLIC DEDICATED RIGHT OF WAY WITHIN SAID CITY OF MIAMI BEACH; SAID EASEMENT BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF LOT 7, BLOCK 20 OF THE AMENDED MAP OF THE OCEAN FRONT
PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN
PLAT BOOK 5, PAGES 7 AND 8, OF THE PUBLIC RECORDS OF MIAMI—DADE COUNTY, FLORIDA.
THENCE NORTH 82'28'02" WEST, ALONG THE NORTH LINE OF LOT 7 AND ALSO ALONG THE SOUTH RIGHT OF
WAY LINE FOR SAID 34th STREET, A DISTANCE OF 15.79 FEET TO THE POINT OF BEGINNING;
I
THENCE CONTINUE NORTH 8228'02" WEST, ALONG THE NORTH LINE OF LOTS 7 AND 10 OF SAID BLOCK 20
AND ALSO ALONG SAID SOUTH RIGHT OF WAY LINE, A DISTANCE OF 93.92 FEET,
I
THENCE NORTH 07'31'57" EAST, A DISTANCE OF 6.42 FEET;
THENCE NORTH 14'5734" EAST, A DISTANCE OF 27.45 FEET;
THENCE NORTH 0731'57" EAST, A DISTANCE OF 16.22 FEET TO A POINT ON THE SOUTH LINE OF LOT 17,
BLOCK 22, OF SAID PLAT OF AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH
IMPROVEMENT COMPANY AND ALSO TO A POINT ON THE NORTH RIGHT OF WAY LINE FOR SAID 34th STREET;
THENCE SOUTH 82'35'19'* EAST, ALONG THE SOUTH LINE OF LOTS 17 AND 10 OF SAID BLOCK 22 AND ALONG
SAID NORTH RIGHT OF WAY LINE, A DISTANCE OF 89.77 FEET,
THENCE SOUTH 07'31'570 WEST, A DISTANCE OF 50.04 FEET TO THE POINT OF BEGINNING.
THE TOP OF THE EASEMENT HAVING AN ELEVATION OF +0 FEET 4 INCHES (+084" = +0.33)
AND THE BOTTOM OF THE EASEMENT HAVING AN ELEVATION OF —12 FEET 8 INCHES (-12'8" = —12.66)
SAID ELEVATIONS ARE RELATIVE TO THE NATIONAL GEODETIC VERTICAL DATUM OF 1929 (NGVD29).
SAID EASEMENT SITUATE, LYING AND BEING IN THE CITY OF MIAMI BEACH, MIAMI—DADE COUNTY, FLORIDA,
CONTAINING 59,215 CUBIC FEET, MORE OR LESS.
NOTES:
1. THE PROPERTY SHOWN HEREON WAS NOT ABSTRACTED FOR OWNERSHIP, RIGHTS-OF-WAY, EASEMENTS OR OTHER
MATTERS OF RECORD BY STONER & ASSOCIATES, INC..
2. THIS SKETCH DOES NOT REPRESENT A FIELD SURVEY. (THIS IS NOT A SURVEY).
3. THIS SKETCH OF DESCRIPTION WAS PREPARED BY THIS FIRM WITHOUT THE BENEFIT OF A TITLE SEARCH. AND WAS
BASED ON:
A. AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, ACCORDING TO THE
PLAT THEREOF, RECORDED IN PLAT BOOK 5, PAGES 7 & 8, MIAMI-DADE COUNTY, FLORIDA.
B. STONER & ASSOCIATES, INC. PROJECTS NUMBER 04-6545, 08-7228, 11-7613, 11-7729
C. SKETCH PROVIDED BY CLIENT.
4. THE BEARINGS SHOWN HEREON ARE BASED ON N.29°57'53"E., ALONG THE BASELINE OF STATE ROAD AIA (INDIAN
CREEK DRIVE), AS SHOWN ON FLORIDA DEPARTMENT OF TRANSPORTATION PROJECT NETWORK CONTROL SHEET,
FINANCIAL PROJECT ID. 414641-1-52-01, BETWEEN BASELINE STATIONS 51+40.33 AND 53+57.73.
5. TOP AND BOTTOM ELEVATIONS PROVIDED BY CLIENT.
CERTIFICATE:
THIS IS TO CERTIFY THAT THE SKETCH AND LEGAL DESCRIPTION SHOWN HEREON 15 ACCURATE AND CORRECT TO THE BEST OF MY
KNOWLEDGE AND BELIEF. I FURTHER CERTIFY THAT THIS SKETCH AND LEGAL DESCRIPTION MEETS THE MINIMUM 'TECHNICAL STANDARDS
SET FORTH BY THE FLORIDA BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS IN CHAPTER 5J-17, FLORIDA ADMINISTRATIVE CODE, SEAL Ld
PURSUANT TO SECTION 472.07, FLORIDA STATUTES,
REVISIONS DATE BY NOT VALID UNLESS 7)
1 REVISE EASEMENT PER CLIENT 03 07 12 WDLR WALTER DE LA ROCHA� L( y z-SEALED HERE WITH
AN EMBOSSED o�
2 REVISE EASEMENT WITH ELEV, 04 28 13 WDLR PROFESSIONAL SURVEYOR AND MAPPER NO. 6081 - STATE OF FLORIDA SURVEYOR'S SEAL Z
THE MATERIAL SHOWN HEREON IS THE PROPERTY OF STONER & U
ASSOCIATES, INC. AND SHALL NOT BE REPRODUCED IN WHOLE OR DATE OF SKETCH:I DRAWN BY ICHECKED BY FIELD BOOK
IN PYR PART KI Tc UT PERMISSION OF STONER & ASSOCIATES, INC. 02/22/12 WDLR ,IDS N/A SHEET 1 OF 2
DATE: May 09, 2013 - 7:37am EST FILE: F:\Draw\MISC\11-7729 Saxony Hotel - Cloro\dwq\11-7735 UGE.dwq
I
Exhibit A
I
STONER &ASSOCIATES, INC.
SURVEYORS-MAPPERS Tel. 954 585-0997
4341 S.W. 62nd AVE. Florida Licensed Survey ( )
Davie, Florida 33314 and Mapping Business No.6633 Fax (954) 585-3927
RECORDING AREA i
SKETCH OF DESCRIPTION OF:
A A SUBTERRANEAN EASEMENT
LYING IN SECTION 26, TOWNSHIP 53 SOUTH, RANGE 42 EAST
CITY OF MIAMI BEACH, MIAMI-DADE COUNTY, FLORIDA
ARTHUR G DF EY RD.
LEGEND:
P.B.............. PLAT BOOK a�
PG.. . ........... PAGE !;
M-D.C.R......... .MIAMI-DADE COUNTY RECORDS N 145th S3.
P.O.C... ......... POINT OF COMMENCEMENT a 12 THIS
P.O.B.. ......... . POINT OF BEGINNING °" SKETCH
(R) . ......... . .PER RECORDS 34th St. j
R/W.............RICH T—OF—WAY �j BLOCK 20 7 = 4 s ?'
. ............. .CENTERLINE _ f0 9 5 2 (� F
EL. ............ . .ELEVATION V W 33rd e 1 BLOCK rs p
NGVD29. ....... NATIONAL GEODETIC VERTICAL C� St.
DATUM OF 1929 e .3
�S
SCALE: 1" = 40'
`32n V e 2 BLOC »
Q`St Q
0 10 20 40 so j
GRAPHIC SCAI F
SOUTH RIGHT NORTH RIGHT ViCiNITY MAP
OF WAY LINE OF WAY LINE (NOT TO SCALE)
TOP of 34th STREET
EASEMENT NOTE:
EL.= +0'4" _ _ _ NGVD29 SEE SHEET 1 FOR THE LEGAL DESCRIPTION OF
Q) . EL.= 0'0" THE SKETCH GRAPHICALLY SHOWN HEREON.
BOTTOM OF
EASEMENT BLOPK 22
EL._ -12'8" CROSS SECTION VIEW AMENDED MA NOT TO SCALE M THE OCEq N�RON T p OF
MIA M1 BEACH IMP THE ROPER TY
LOT 17 P VEMENT
B• 5, C. COMPANY
ZQ ��UTH LINE 8' M-D.C R. LOT 10
LOT 17
O` too' (p) SOUTH LINE S f CORNER O
O
NOR SOLI
RIGHT OF LOT 1 LOT j01___1\ Z
Y LINE O BLOCK 22 J
5..8 0 100" (P� 15.23' m
07•,31'57•. E 2 3519 E 89,77� .
p 16.22' 4u
�V N 1475 7 34 E �4.t�. S�- ^
Q Q
SOU RIGHT N 27.45 10th STR �EET het'- z
Q AY LINE n °
07 3157 E 5D RIGHT OF SET �jD> ..
WA 6.42 (p)
loo (P � h Q� ►�
NORTH LINE N 8228'02p w. P Q:�
OF LOT 10 100' 9332 � N O ^ O J
L 0 T 10 BLOCK 20 NORTH LINE °uN ^� coo
AMENDED OF LOT P 0.C
THE OCEAN Ff? MAP OF LOT N•E. CORNER
PROPERTY 7 OF �J
MIAMI
BEq CH IMP HE BLOCK 20 I
p B 5, P RO VEMEN T CO
G. 7-8, M—Y.
Y.
100.00' (p)
I ~
�3
3�
o
SKETCH N0.
DATE: May 09, 2013 - 7:39am EST FILE: F:\Draw\MISC\11-7729 Saxony Hotel - Claro\dwg\11-7735 UGE.dwg [SHEET 2 OF 2 11-7735 UGE
EXHIBIT B
Legal Description of Grantee Property
Lots 10, 1 l, 12 and Lot 13, Block 22, all of the amended map of the ocean front property of the
Miami Beach Improvement Company, as recorded in Plat Book 5, at Pages 7 & 8 of the public
records of Miami-Dade County, Florida;
together with;
All of Block 20 and all that land lying west of Indian Creek Drive and between the north line of
Lot 10 in Block 20 and the south line of Lot 10 in Block 20 both produced westerly to the waters
of Indian Creek, all of Amended Map of the Ocean Front Property of the Miami Beach
Improvement Company, according to the amended plat thereof, as recorded in Plat Book 5, at
Pages 7 & 8 of the public records of Miami-Dade County, Florida; also described more
particularly as;
A parcel of land being a portion of Section 26, Township 53 South, Range 42 East, lying within
the City of Miami Beach, Miami-Dade County, Florida. Said parcel of land being more
particularly described as follows:
Begin at the Southeast corner of Lot 9, Block 20, of the Amended Map of the Ocean Front
Property of the Miami Beach Improvement Company, according to the amended plat thereof, as
recorded in Plat Book 5, at Pages 7 & 8 of the public records of Miami-Dade County, Florida.
Thence North 07 degrees 35'14" East, along the East line of Lots 9, 8 and 7 of said Block 20, and
the West right of way line of State Road A 1 A (Collins Avenue), a distance of 131.00 feet to the
Northeast corner of said Lot 7, Block 20; thence North 82 degrees 28'02" West, along the North
line of Lots 7 and 10, of said Block 20 and the South right of way line of 34th Street, a distance
of 200.48 feet to the Northwest corner of said Lot 10, said point being reference Point "A";
thence South 07 degrees 25'37" West, along the West line of said Lot 10, and the East right of
way line of Indian Creek Drive, a distance of 87.01 feet to the Southwest corner of said Lot 10;
thence South 70 degrees 04'28" East, along the South line of said Lots 10 and 9, and the North
right of way line of 33rd Street, a distance of 204.97 feet to the Point of Beginning;
TOGETHER WITH:
Commence at the aforementioned reference Point "A"; thence North 82 degrees 28'02" West,
along the Western projection of the North line of said Lot 10, a distance of 50.00 feet to the Point
of Beginning; thence continue North 82 degrees 28'02" West, a distance of 7.94 feet; thence
South I 1 degrees 30'22" West, a distance of 73.30 feet; thence South 70 degrees 04'28" East,
along the Western projection of the South line of said Lot 10, a distance of 13.47 feet; thence
North 07 degrees 25'37" East, along the West right of way line of said Indian Creek Drive, a
distance of 76.02 feet to the Point of Beginning.
Said lands situate within the City of Miami Beach, Miami-Dade County, Florida.
J23796058;11
Page 1 of 2 of EXHIBIT B
EXHIBIT B
Sketch of Grantee Property
not to scale
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123796058;1)
Page 2 of 2 of EXHIBIT B
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-—— 1 - TORY
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- ATLA 1,c Ho
AMENDED MAP OF THE OCEAN
FRONT PROPERTY OF THE M)AMI
BEACH IMPROVEMENT COMPANY C o e ,�. LOT^10
P.6 5.PC. 7-8.M-DCR.
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page 1 of 1 EXHIBIT C
r
Exhibit D
RESOLUTION NO. 2012-28092
A RESOLUTION OF THE MAYOR AND THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN CONCEPT, THE GRANT
OF AN EASEMENT TO COLLINS 3300, LLC AND 3420 COLLINS AVENUE,
LLC (THE APPLICANT), OWNERS OF THE PROPERTIES LOCATED AT 3301
INDIAN CREEK DRIVE, 3400 COLLINS AVENUE AND 3420 COLLINS
AVENUE, FOLLOWING A DULY NOTICED PUBLIC HEARING, FOR A
PROPOSED SUBSURFACE PARKING GARAGE, THAT SPANS THE ENTIRE
WIDTH OF THE 50-FOOT PUBLIC RIGHT-OF-WAY OF 34TH STREET FOR A
LENGTH OF APPROXIMATELY 93 FEET; PROVIDED, HOWEVER, THAT THE
AFORESTATED CONCEPTUAL APPROVAL BE SUBJECT TO AND
CONTINGENT UPON COMPLETION OF CONTINUING NEGOTIATIONS OF
THE EASEMENT AND AN AGREEMENT BETWEEN CITY AND THE
APPLICANT, WHICH EASEMENT AND AGREEMENT, IF SUCCESSFULLY
NEGOTIATED AND FINALIZED, SHALL BE SUBJECT TO FINAL APPROVAL
BY THE CITY MANAGER AND CITY ATTORNEY; FURTHER AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE THE FINAL EASEMENT AND
AGREEMENT, IF AND WHEN FINALIZED; FURTHER ACCEPTING THE
RECOMMENDATION OF THE CITY MANAGER.
WHEREAS, Collins 3300, LLC And 3420 Collins Avenue, LLC, (Applicants) are owners of the
properties located at 3301 Indian Creek Drive, 3400 Collins Avenue, and 3420 Collins Avenue
(collectively, the Properties); and
WHEREAS, the Applicants wish to connect the Properties and provide for required parking with a
subsurface parking garage beneath 34th Street; and
WHEREAS, the portion of the parking garage underneath the right-of-way is proposed to be 12
feet 10 inches below ground-level with a width of 50 feet and a length of approximately 93 feet; and
WHEREAS, the Applicants have received approval from the City's Historic Preservation Board
(pursuant to HPB Order No. 7299)to redevelop the Properties; and
WHEREAS, at its June 13, 2012 meeting, the Land Use and Development Committee
recommended that the City Commission set a public hearing to consider the granting of Applicants'
request; and
WHEREAS, at its July 18, 2012 meeting, the City Commission approved Resolution No. 2012-
27950, setting a public hearing to consider this request.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve in concept,
the grant of an easement to Collins 3300, LLC and 3420 Collins Avenue, LLC (the Applicant),
owners of the properties located at 3301 Indian Creek Drive, 3400 Collins Avenue and 3420
Collins Avenue, following a duly noticed public hearing, for a proposed subsurface parking
garage, that spans the entire width of the 50-foot public right-of-way of 34th Street for a length of
approximately 93 feet; provided, however, that the aforestated conceptual approval be subject
to and contingent upon completion of continuing negotiations of the easement and an
agreement between the City and the Applicant, which easement and agreement, if successfully
negotiated and finalized, shall be subject to final approval by the City Manager and City
Attorney; further authorizing the Mayor and City Clerk to execute the final easement and
agreement, if and when finalized; further accepting the recommendation of the City Manager.
2os2-Z8o9Z
Exhibit D
PASSED AND ADOPTED this 12`h day of December, 2012.
ATTEST:
L
M erre a Bower, Mayo
Rafae ranado, City CI rk �
P�1 .E3 .?9
APPROVED AS TO FORM, �y
A L NGUAGE, AND FOR EXECUTION
INCORP ORATE:
'Attorne Date
26 ,C
T:IAGENDA 12012112-12-121easements13300 Collins Subterranean Easement-RESO by FB rev GH 12-7-12.docx
Exhibit D
TERMS AND CONDITIONS FOR
PERPETUAL SUBSURFACE EASEMENT AGREEMENT
These terms and conditions for a perpetual subsurface easement agreement ("Term Sheet") are
dated this day of , 20 ("Effective Date"). The parties to the Term
Sheet are the CITY OF MIAMI BEACH a political subdivision of the State of Florida, whose
address is 1700 Convention Center Drive,Miami Beach, Florida 33139("C "), and COLLINS
3300, LLC and 3420 COLLINS AVENUE, LLC, both of whom are Foreign Limited Liability
Corporations, whose address is 730 Fifth Avenue, 20`h Floor, New York, NY 10019
("Developer").
RECITALS:
A. City is the political subdivision of jurisdiction to all of the right-of-way known as 34`h
Street ("Right-of-Way") and that certain real property, situated, lying and being in
Miami-Dade County, Florida, as legally described and depicted in the Perpetual
Subsurface Easement Agreement ("Easement Agreement"), consisting of a portion of
the Right-of-Way(the"Easement Parcel"), as depicted in Exhibit A.
B. Developer is the owner of fee simple title to that certain real property situated, lying and
being in Miami-Dade County, Florida, as legally described and depicted in the Easement
Agreement and generally lying on the opposite sides of the Easement Parcel (the
"Developer Property'), as depicted in Exhibit B.
C. Developer plans to install certain improvements within the Easement Parcel, such as
underground parking and driveway facilities (the "Improvements"), further depicted in
the Easement Agreement.
D. The Improvements will facilitate the provision of needed off-street parking in the City.
E. The City agrees to grant to Developer the Easement Agreement pursuant to the terms set
forth herein and agrees that such Easement shall run with the land.
TERMS AND CONDITIONS:
A. Grant of Easement. In consideration of the items proffered below by the Developer, the
City agrees to grant the Easement Agreement to the Developer.
B. Beachwalk. In consideration of the Easement Agreement, the Developer agrees to
contribute certain funding, as provided herein, for the improvement of a new public
beach walk between 32nd Street and 36th Street, excluding behind the Versailles
property(the "Beachwalk").
1. Hard Costs. The Developer will pay up to $1,100 per linear foot for the entire
length of the Beachwalk between 32nd Street and 36th Street, excluding behind
the Versailles Property ("Hard Costs"); however, in no event will the Developer
pay more than $900,000 (the "Developer's Maximum Contribution") for Hard
Costs. The City will fund the difference between the Developer's Maximum
{25404946;3}
Exhibit D
Contribution and the overall cost of the Beachwalk. The Beachwalk shall be an
at-grade Beachwalk, similar to the at-grade Beachwalk south of 22nd Street.
2. Soft Costs. The Developer will pay for soft costs (estimated to be valued at
approximately $400,000), including permitting, and fees for architects, engineers,
construction management and other professional labor, associated with portions of
the Beachwalk located between 32nd Street to 34th Street, and 35th Street to 36th
Street. Soft Costs shall not be considered in the calculation of the Developer's
Maximum Contribution.
C. Infrastructure. The Developer will implement appropriate modifications to utility
infrastructure within and outside of to the Easement Area, such as new water, sewer and
stormwater lines, reinforced concrete slabs above utilities with less than 36" cover and
other agreed-upon modifications requested by the Public Works Department. The
Developer will also re-route all utilities such as water, sewer, FPL, AT&T and Atlantic
Broadband in the Easement Area at its own expense. The estimated value of the hard and
soft costs associated with the utility relocation work is approximately$1,725,000.
D. Permit Fee Credit. The Developer will not cancel its existing hotel master permit for the
Project, and therefore will not seek a credit for fees associated with a new master hotel
permit. The estimated value of this credit is approximately$700,000.
E. Removal of On-Street Parking Spaces Adjacent to Developer Property. In order to
provide vehicular access to the Developer Property and its associated off-street parking
facilities and to improve pedestrian safety and convenience, the Developer must remove
seven (7) on-street, metered parking spaces that are adjacent to the Developer Property.
These seven (7) spaces are shown in red on Exhibit C. The Developer agrees to pay for
the removal of these seven(7) on-street spaces as follows: the Developer will pay$7,000
per space per year for five (5) years so that a total of$35,000 per space is paid in total.
The first payment is due prior to the issuance of a building permit for the Atlantic Hotels
project on the Developer Property.
The City, at its own cost and expense, will remove five (5) on-street spaces adjacent to
the Developer Property, shown in blue on Exhibit C. Because these five spaces improve
the pedestrian environment pursuant to policies of the Comprehensive Plan, the City will
not charge the Developer for the removal of these five(5)spaces.
F. Temporary Use of 32nd Street. The Developer will receive the use of seven (7) on-street
parking spaces on 32"d Street, east of Collins Avenue, during the period when the sales
center for the Saxony Condominium project is operational. The use of these seven spaces
shall be at no cost to the Developer.
{25404946;3)
Exhibit
EXHIBIT A
OMER&ASSOCIATES,INC.
VS� .
SURVEYORS-MAPPERS Tel. (954) 565-099Y
4341 S.W. 62nd AVE. FbiM Llcomed Surmy
Davie, Florida 33314 and Akpping BuVnew No.6633 Fax (954) 585-3927
IMI
SKETCH OF DESCRIPTIOM OF."
A PARCEL OF LAND
LYING IN SECTION 26, TOWNSHIP 53 SOUTH,RANGE 412 EAST
CITY OF MIAMI BEACH, MIAMI-DADE COUNTY, FLORIDA
eRTNUR D Er RD.
5
THIS
SKETCH
.74th St.
-
io 0
tQ •urd Ataor c°
SCALE: T° = 40' X. '
d ice
� 3/ e r Q
° a 20 40 e2
GRAPHIC SCALE
Lc'GFNO: VICINITY MAP
AS ............P1A t 600x
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A ...........PER P1AT THE SJ(M4 GRAPHICALLY 9r0WN' HEREON.
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