Amended and Restated Easement Agreement for Emergency Walkway Easement 9oo3- 2cZlI
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OFFICE OF THE CITY ATTORNEY
RAUL J. AGUILA, CITY ATTORNEY
TO: Rafael E. Granado, City Clerk
FROM: Eve A. Boutsis, Deputy City Attorney
,1
DATE: August 31, 2015
SUBJECT: Corrected Easement Agreement
The attached Amended and Restated Easement Agreement for Emergency Walkway
Easement does not require a resolution. The amendment is a clarification of a scrivener's
error as to the legal description.
Thank you.
F:\ATTO\BOUE\Memos\Corrected Easement Agreement Shalom Yefet-Chowfuna,LLC Talula Restaurant 210 23rd Street].docx
f/ ' . a0°3- 2 22
AMENDED AND RESTATED EASEMENT AGREEMENT
FOR EMERGENCY WALKWAY EASEMENT
THIS AMENDED AND RESTATED AGREEMENT FOR EMERGENCY
WALKWAY EASEMENT ("Agreement") is dated as of ,._k1/ 1-12i0/3" by and between
CITY OF MIAMI BEACH, a municipal corporation existing -under the law of the State.of
Florida ("CITY"), and SHALOM YEFET and NELLY YEFET, his wife (collectively
"YEFET"), and CHOWFTJNA, LLC, a- Florida limited liability company ("RESTAURANT
TENANT').
RECITALS
A. The Easement recorded at Miami-Dade County CFN 2003R0385762; OR Bk 21330
Pgs. 0443-458 is released and superceded by this Amended and Restated Easement Agreement
for Emergency Wa.k\vay Easement.
B. CITY owns that certain parcel of real property located in the County of Miami-
Dade, State of Florida, as described in Exhibit A attached hereto and incorporated herein by this
reference (referred to herein.as "Parcel").
C. YEFET owns that certain parcel of real property located in the County of Miami-
Dade, State of Florida, as described in Exhibit B attached hereto and incorporated herein by this
reference (referred to herein as "Parcel 2").
D. CITY provides an emergency walkway easement through Lot 4 of Parcel 1., legal
description attached as Exhibit C, (referred herein as Parcel. 3).
B. RESTAURANT TENANT requires for the operation of its restaurant on Parcel 2 an
easement for pedestrian ingress and egress over, upon and across Parcel 3 , at a location on
Parcel 3 to be determined by the parties and acceptable to the CITY ("Emergency Walkway
Easement", "Emergency Walkway Easement Area", or "Easement"), for the benefit of Parcel 2
for the sole purpose of providing emergency pedestrian egress from the rear of the restaurant
located on Parcel 2 in case of a fire or other emergency.
F. An overlay reflecting the location of Parcels 2 and 3 is attached hereto as Exhibit
D.
EASEMENT
1. Emergeencv Walkway Easement. CITY hereby grants and conveys to YEFET
for the use and benefit of the RESTAURANT TENANT a non-excursive easement to utilize an
approximately four foot wide Emergency Walkway Easement Area at a location within Parcel 3
to be determined by the parties and acceptable to the CITY, for the sole purpose of providing
emergency pedestrian ingress and egress over and across Parcel 3 from the rear of Parcel 2, in
the. event of a fire or other emergency for the benefit of the occupants of the RESTAURANT
TENANT.
2. . Fire Exit Gate and Other Improvements.rovements. The grant of this Easement is
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expressly conditioned. on the erection and maintenance by YEFET and the RESTAURANT
TENANT of a gate, as depicted in Exhibit C, identified with a sip.stating "Emergency Fire Exit
Only" (as detailed and specified by the attachment to Exhibit C, to be approved by the City's
Fire Marshal). Furthermore, YEFET and the RESTAURANT \OWNER agree to pay for the
erection and ongoing maintenance, within thirty days of written notice thereof by the CITY, of
any additional Easement improvements (such as lights, handrails and other devices) on Parcel
3 that the City Fire Marshal decides, in his reasonable discretion, are necessary to provide
YEFET and the RESTAURANT OWNER the Emergency Walkway Easement. Unless there
• is an emergency evacuation ofParce12, no person may use th.e Emergency Walkway Easement
except for the sole purpose of maintaining th.e gate and Easement improvements. The gate
design and materials shall be architecturally compatible with the CITY's perimeter fence on
Parcel 1 and the plans for the gate shalt be submitted to the CITY for its approval prior to
installation of the gate. RESTAURANT TENANT shall maintain the gate and any required
"emergency exit" signage in good condition and repair, reasonable wear and tear excepted.
Improvements on Parcel. 3 shall be approved in writing by CITY prior to installation, which
approval shall.not be unreasonably withheld. Improvements to Parcel 3 shall be subject to the
approval and sole discretion of CITY also as to timing and CITY must approve the timing of
the installation of such improvements in writing prior to their commencement.
3. Location of Emergency Wall-way Easemen.t Area._ Upon. request. of any party
(and at the requesting party's expense, unless such request is made by the City), a supplemental
the amendment to this instrument describing the exact location of the Emergency Walkway
. Easement Area.shall be executed by the parties and recorded. amon.g the public records.
4. No Dedication. The grant of easement contained herein is not intended and shall
nOt be construed as a dedication of the paved portions of the Emergency Walkway Easement
Area or any portions thereof for public use and CITY may take whatever steps are necessary to
avoi.d dedication.
5. Covenants Running, with Land. This Agreement shall run with the lands
described herein, and shall be binding upon. CITY and YEFET and shall. inure to and be for
the benefit of CI'T'Y and YEFET and their respective successors and assigns, tenants,
subtenants, licensees, concessionaires and business invitees, including, without limitation,
RESTAURANT TENANT. The provisions of this instrument shall become effective upon their
recordation in the public records of Miami-Dade County, Florida, and subject to the
provisions of Paragraph b shall continue in effect for a period of thirty (30) years after the date
of such recordation, after which time they shall be extended automatically for successive
periods of ten (10) years each, unless terminated in writing as provided for herein. Subsequent
tenants o f Parcel 2 prior to occupancy shall execute a Joinder and Consent to this Agreement
and submit it to the City Fire Marshal and City Clerk; failure to do so shall not relieve such
subsequent tenants from.liability hereunder.
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6. Termination of Easement. If restaurant use is permanently discontinued on
Parcel 2 ("permanently is continued" to be defined herein as.the closure of the restaurant for a
continuous six (6) months period), then the City, at i.ts sole option and discretion, may
terminate this Easement. Upon. notice from the City of such termination, as provided herein,
the parties shall execute and deliver a termination of this easement in recordable form. Present
and parties
owners of Parcel 3 may also give three months notice to the owner of Parcel2
and. the Miami Beach Fire Marshal of the termination of this Easement for an.y reason in its sole
discretion, following which three month period YEFET and RESTAURANT TENANT shall be
responsible for provid.i.n.g alternative emergency fire egress from Parcel 2. If alternative egress
satisfactory to the Fire Marshal. is not provided, this will acknowledge that the .F.ire Marshal
retains authority to modify the approved occupant load.for Parcel 2.
7. Attorneys' Fees. .Ihthe event that any party to this Agreement brings an action to
enforce its rights hereunder, the prevailing party in such action shall be entitled to receive all
costs and reasonable attorneys' fees in addition to any damages to which it is due by reason of
such action.
S. Notices. Any demands or notice allowed or required hereunder shall be deemed
to have been properly given or served when delivered personally or deposited in the United
States Mail, as registered or certified mail,postage prepaid and addressed as follows:
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If to CITY: City of Miami Beach
Fire Marshal
2300 Pinetree Drive
- .Miarzi Beach, .Florida 33140
and a copy to: City Attorney
1700 Convention Center—4th Floor
Miami Beach,Florida 331.39
If to YEFET: c/o Shalom Yefet
3002 North 35h Terrace
Hollywood, Florida 33021
and a copy to: Lee H. Schillinger.
4601 Sheridan Street, Suite 202
Hollywood, Florida 33021
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If to RESTAURANT TENANT: Chowfuna, L.LC
• d/bia Talula Restaurant
210 23rd Street
Miami Beach, Florida 33139
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and a copy to: Augusto E. Maxwell
Aken-nan, Senterfitt
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One S.E.Third Avenue
\vliami, Florida:33131
Any party may change his, her or its address for notice by giving the other parties hereto at least
fifteen(1 5) days prior written notice.of any such change of address.
9. Indemnification. 'YEFET and RESTAURANT OWNER (during the tern. of its lease of
Parcel 2), and their respective successors and assigns, shall indemnify, defend and hold harmless
CITY and its directors, officers, employees and agents, and th.ei.r respective heirs, successors and
assigns, from and. against any and all liability to any person or entity for or on account of any death.or
injury to persons or any damage to property, as well as any.loss, damage, lien, claim, injury or expense
(including reasonable attorneys' fees and costs) which is or alleged to be caused by, resulting from,
arising out of or occurring in con n.ection with its maintenance or use of the Emergency Walkway
Easement Area or any part thereof by its employees, agents,tenants, occupants, licensees, invitees or
contractors; provided, however, that nothing herein shall require YEFET or RESTAURANT OWNER
to indemnify or hold CITY harmless from or against such liability if such death, injury or damage is
caused by the gross negligence or willful misconduct of the CITY or its employees, agents, tenants,
occupants, licensees, invitees or contractors.
1.0. Insurance. Throughout the term of this Easement, YEFET and RESTAURANT
TENANT (during its lease of Parcel 2) shall procure and maintain commercial public liability
insurance, with coverage limits of not less than 51,000,000.00 combined single limit (adjusted from
time to time as reasonably requested by any party hereto based on coverage limits generally maintained
by prudent owners of comparable properties in Miami-Dade County, Florida, but not more frequently
than once every three (3) years insuring against injury to persons or damage to property arising out of
or in connection with the use of the Emergency Walkway Easement Area or any part thereof. Such
insurance policy procured shall name CITY as an additional insured, and shall provide that it shall not
be canceled or terminated without thirty (30) days prior written notice to CITY. A. copy of such
insurance policy required hereby, or a certificate evidencing such policy, shall be submitted to CITY
within ten (10) days following the date of this Easement, and copies of renewal certificates shall be
delivered to CITY thirty (30) days prior to the scheduled expiration of such policy throughout the term
of this Easement. The company issuing the insurance policy required hereby shall be reasonably
satisfactory to CITY and licensed to do business in the State of Florida. YEFET and RESTAURANT
• OWNER's failure to comply with this Paragraph 10, shall be grounds for the City to terminate this
Easement, upon thirty (30) days Written notice to YEFET and RESTAUR&NT OWNER.
11. Amendments,This Agreement may not be changed, modified or amended
in whole or in part except by a written and recorded agreement, executed by the then
record fee owners of the Parcels 2 and 3.
12. Severability. If any portion contained herein shall be held to be invalid or to be
unenforceable or not to run with the land, such holding shall not affect the validity or enforceability
of the remainder of this Agreement.
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IN WITNESS WHEREOF, CITY,YEFET AND RESTAURANT TENANT have caused this
Agreement to be executed and delivered as of the date and year fast above written.
Signed, Sealed and Delivered
In the Presence of:
CITY OF MIAMI ',EACH
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Attest: _ ����-`�
,/.r WAL-a. te." ':X. .�`
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City Cl rk mat` 8 �.,,, . Ple1
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APPROVED AS TO F ORS. 1 /..""""Ntre -*-
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•LANGUAGE AND FOR �`'.w. • 7 "":ON .
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STATE OF FLORIDA )
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COUNTY OF MIAMI-DADE )
The foreg i�g in trument was acknowledged before me this ILI-day of J O l ,
2015,b_v 'Q _, as of the City, of Miami Beach. He she is
personally knovn to me or has rod.uced L S .e of.identification as
identification. -.
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,Joinder and Consent
The undersigned, as tenant and operator of the restaurant located on Parcel 2 hereby joins
in and consents to the foregoing Easement Agreement and.Emergency Walkway Easement Area.
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Signed,sealed and delivered in the SeSientat, r C
presence of. ,
Signature ® CDt
Title:,l.:O - - rN6 Fi4PTIV8k
Printed Name
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Signature
Printed Name
STATE OF FLORIDA. ;
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COUNTY OF Ml I--1:7.=1 IMF )
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The foregoing instrument was acknowledged before me this \" day of Augur , •.....••.q'9
2015, y) 1 m L LLC. I-`ie/sh$is •��o�15 �I.e
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Book21330/Page450 Page 8 of 16
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"Parcel 2"
Lot 3 in Block 2 of OCEAN FRONT PROPERTY, according to the Plat thereof,recorded in Plat
Book 5,at Pages 7 and 8,of the Public Records of Miami-Dade County,Florida.
Folio Number: 02-3226 001 0451
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Exhibit B
(M19337550)
Book213301Page451 Page 9 of 16