Loading...
Easement Agreement with 3420 Collins Avenue, LLCThis Instrument Prepared by and return to: Raul J. Aguila, City Attorney City of Miami Beach, Florida 1700 Convention Center Drive Miami Beach, Florida 33139 SPACE ABOVE THIS LINE FOR PROCESSING DATA SPACE ABOVE THIS LINE FOR PROCESSING DATA EASEMENT AGREEMENT This Easement Agreement ("Agreement") is made this 6th day of November 2017, by and between 3420 Collins Avenue, LLC, a Delaware limited liability company, whose address is 3201 Collins Avenue, Miami, FL 33140 ("Grantor"), and the City of Miami Beach, Florida, a municipal corporation organized and existing under the laws of the State of Florida, whose address is 1700 Convention Center Drive, Miami Beach, -Florida 33139 ("Grantee") (Grantor or the Grantee may be referred to herein individually as a "party" or collectively as "parties"). WHEREAS, Grantor is the owner in fee simple of the real property located in Miami - Dade County, legally described in Exhibit "A" attached hereto (the "Property"); and WHEREAS, the Property abuts Indian Creek (the "Waterbody") and includes the area containing a seawall that is adjacent to the Waterbody (the "Seawall Area"); and WHEREAS, Grantee is replacing seawalls and elevating roadways along Indian Creek to benefit Grantor and other property owners abutting the Waterbody, whose land is subject to inundation during certain tidal events; and WHEREAS, Grantee needs access to and use, of the Property in connection with the development of Public Related Uses (as defined in Section 3), which will include the construction of a new seawall ("New Seawall"), as may be upgraded from time to time by Grantee, for the protection of the health, safety or welfare of the general public; and the development of a greenway, generally consistent with the "Atlantic Greenway Network Master Pian (December 2008)" document, as may be amended from time to time, for public use and access; and WHEREAS, Grantor, in support of Grantee's intended improvements, has agreed to grant a perpetual, non-exclusive access and use easement to Grantee in, on, over, through and across the Property, including riparian rights and public access; and WHEREAS, Grantor requests that Grantee, and Grantee hereby agrees, at Grantee's sole cost and expense, to demolish and remove the existing seawall and construct, install and maintain a New Seawall; and 42419059;5 1 WHEREAS, the City Manager as referenced in this Agreement shall mean the chief executive officer of the City or such person (the City Manager's designee) as may from time to time be authorized in writing by such administrative official to act for him/her with respect to any or all matters pertaining to the administration of this Agreement on behalf of the City, except where such authority has been expressly delegated herein to the City Commission. NOW, THEREFORE, for and in consideration of the mutual covenants, benefits and agreements of the parties and the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The above recitals are true and correct and are incorporated herein as part of this Agreement. 2. Grant of 'Easements. a. Grantor hereby grants, bargains, sells and conveys to Grantee, its ,successors and assigns, for use by Grantee, its employees, agents and contractors, and representatives and licensees, a perpetual, non-exclusive access and use easement in, on, over, through and across the Property, legally described in Exhibit "A", in connection with the construction, installation, operation, repair, replacement, upgrade and maintenance of City Improvements (as defined in Section 4) and the operation of Public Related Uses (as defined in Section 3), subject to the terms and conditions set forth herein. The easement rights shall include rights to the upland interest over the shoreline into the Waterbody, together with all other riparian rights as may be required under applicable Laws and by any governmental authority (including the Board •of Trustees of the Internal Improvement Trust Fund of the State of Florida) having jurisdiction over the Property or the sovereign lands located adjacent thereto, to allow Grantee to construct, install, repair, replace, upgrade or maintain the New Seawall. Additionally, the easement rights shall permit Grantee, its employees, agents and contractors and representatives and licensees to survey, mobilize, excavate, demolish, construct, inspect, store materials and equipment (on a temporary basis), install utilities, and take all other reasonable actions on the Property necessary to develop any City Improvements or operate any Public Related Uses; however, at no time shall Grantee use the Property as a staging area for construction activities benefiting other land. b. Public Access Easement. Grantor hereby grants, bargains, sells and conveys to Grantee, its successors and assigns, for use by members of the general public, a perpetual, non-exclusive access and use easement in, on, over, through and across the Property, in connection with the general public's use of any City Improvement or Public Related Uses developed by Grantee on the Property. 3. Public Related Uses. As referred to herein, "Public Related Uses" means a seawall/retaining wail, flood mitigation elements, a greenway, public transportation stops, kiosks, bicycle paths, walkways, lighting and decks for use by the general public, or any other similar uses which Grantee, in its reasonable discretion, deems necessary for the protection of the health, safety or welfare of the general public. 42419059;5 2 4. .City Improvements. Grantee will have the right to construct, install, operate, repair, replace, upgrade and maintain, at its sole cost and expense, improvements on the Property in support of Public Related Uses (the "City Improvements"). All City Improvements shall require the Grantor's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided that, it shall be unreasonable to withhold consent if: (1) Grantee is in good standing under the terms of this Agreement; and (2) any proposed Public Related Use or City Improvement will not interfere with Grantor's use or enjoyment of Grantor's existing improvements. 5. Grantee Obligations. Grantee, at its sole cost and expense, will cause plans and specifications to be prepared for any construction work related to the installation of any City Improvements (collectively the "Work"), and will obtain any and all governmental permits and approvals required in connection with the Work (the "Permits"), Prior to commencing the Work, Grantor will approve said plans and specifications so long as the same are consistent with the terms and conditions of this Agreement (the "Approved Plans"). Grantor shall not unreasonably withhold, condition or delay any approval that may be required by Federal, State or County agencies or similar third parties for the construction of any approved City Improvement. Upon completion of the Work, Grantee will accept ownership of any City Improvement, and will assume the sole responsibility, at its sole cost and expense, to maintain any City Improvement in a good and safe condition and to repair and/or replace the same as necessary from time to time, all in accordance with the Permits and any and all federal, state and local laws, rules, ordinances, and regulations (collectively, the "Laws") applicable thereto. Notwithstanding the foregoing, should Grantor develop a dock or any other marine related use or improvement contiguous to the Seawall Area, Grantor will be deemed to have accepted ownership of the New Seawall and will thereafter assume the sole responsibility to maintain the New Seawall in a good and safe condition and to repair and/or replace same as necessary from time to time, all in accordance with the Permits and any Laws applicable thereto. Grantee's •responsibility with respect to the installation of any approved City Improvements shall include the construction and installation of such City Improvements in accordance with the Approved Plans and Permits and, upon completion of the City Improvements, the repair, replacement and maintenance of the constructed City Improvements; it being understood and agreed that (i) Grantee makes no warranty regarding the City Improvements, and (ii) Grantor disclaims any and all implied warranties of merchantability and fitness, fitness for a particular purpose, intended use, workmanship or construction respecting the City Improvements imposed by statute, case law or otherwise. 6. Grantor Obligations. At all times prior to completion of the Work, Grantor will reasonably cooperate with Grantee in connection with the Work, including, without limitation, by executing, or causing to be executed, within five (5) business days of a request from Grantee, any application or other documentation (in recordable form if necessary) necessary in connection therewith. 7. As -Is Condition. Grantee acknowledges that it has inspected all portions of the Property and agrees to enter upon the same in its "as is" condition, with all faults. 8. Access. Grantor shall not withhold or obstruct Grantee's access to any City Improvements or Public Related Uses through the installation of a fence or other similar 42419059;5 3 means. Grantee shall not withhold or obstruct Grantor's access to the Seawall Area or to any dock or mooring seaward of such area, except where necessary for Grantee to fulfill its obligation to construct, install, repair., replace, upgrade and maintain the New Seawall, or as may be necessary for the health, safety, or welfare of the general public. Except as limited above, Grantee shall at all times provide the same access to the Grantor's existing improvements as what exists at the time of execution of this Agreement. Such access shall include access that meets the standards of the Americans with Disabilities Act. 9. Non -Exclusivity. The easement rights granted herein to Grantee are non-exclusive in nature. Grantor hereby reserves the right to use, and to allow others to use, all or any portion of the Property for any purpose not inconsistent with the easement rights granted herein. 10. Amendment. This Agreement may only be modified, amended, terminated or released by a recordable instrument executed by both parties hereto or their successors or assigns, and approved by the City Commission. 11. Inspection. It is understood and agreed that any City official has the right to enter and investigate the Property to verify compliance with the conditions of this Agreement or any applicable Laws. 12. No Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the New Seawall to the general public or for general public purposes whatsoever, nor shall anything in this Agreement, whether express or implied, be interpreted to confer upon the general public any enforcement rights against Grantor, the rights granted herein being enforceable solely by Grantee. 13. Insurance. In compliance with and subject to the limitations of Florida Statutes Sections 768.28 and 440.09, Grantee maintains a Self -Insurance Fund for liability and workers' compensation claims that may arise under this Agreement. Prior to commencing any Work, Grantee will cause its third -party contractors to provide Grantor with insurance certificates evidencing the contractor's general commercial liability insurance, with coverages consistent with the requirements of the City of Miami Beach's Building Department, and worker's compensation insurance coverage as required by Florida law. Such insurance certificates shall name Grantor as an "additional insured" under the contractor's general commercial liability insurance. 14. Indemnification. Grantor, and its successors and assigns, agrees to save, defend, indemnify and hold harmless Grantee, its employees, agents and contractors (collectively, "Grantee Indemnified Parties"), from and against any and all loss, liability, damages, claims, costs, attorneys' fees and expenses (collectively, "Losses"), arising out of or relating to Grantor's negligent or wrongful acts or omissions, excluding any Losses arising out of or relating to the negligent or wrongful act or omission of the Grantee Indemnified Parties. In consideration for this Agreement, Grantee, its successors and assigns, to the extent allowable by law, and subJect to the limitation on Grantee's liability set forth in Section 768.28, Florida Statutes, as may be amended from time to time, expressly agrees to save, defend, indemnify and hold harmless Grantor, its employees, agents and contractors, (collectively, "Grantor Indemnified Parties"), from and against any and all 42419059;5 4 Losses (as defined above) arising out of or relating to the Grantee's negligent or wrongful acts or omissions, excluding any Losses arising out of or relating to the negligent or wrongful act or omission of the Grantor Indemnified Parties. Additionally, nothing contained in this Agreement shall be deemed to expand the waiver of sovereign immunity provided in Section 768.28, Florida Statutes. 15. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to Grantor at: 3420 Collins Avenue, LLC 3201 Collins Avenue Miami Beach, FL 33140 Attention: Scott Geraghty With a copy to: Akerman LLP 98 SE 7 Street, Suite 1100 Miami, FL 33131 Attention: Neisen C.O. Kasdin If to the Grantee at: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager With a copy to: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Attorney Notices personally delivered or sent by overnight courier, or mailed in accordance with the foregoing shall be deemed given upon receipt. The terms of this Section shall survive the termination of this Agreement. 16. Remedies. The terms of this Agreement may be enforced by injunctive relief and any other available remedies. In any action at law or in equity between the parties occasioned by a default hereunder, the Prevailing Party shall be entitled to collect its reasonable attorneys' fees actually incurred in the action from the non -prevailing party at trial and all appellate levels. As used herein, the term "Prevailing Party" shall mean the party who receives substantially the relief sought. 17. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida. The exclusive venue for any litigation arising out of this Agreement shall be Miami Dade County, Florida, BY ENTERING INTO THIS AGREEMENT, GRANTOR AND GRANTEE EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 42419059;5 5 18. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, both oral and written, relating to the subject matter hereof. 19. Grantor Representations. Grantor covenants, warrants and represents that Grantor has the right, title and capacity to grant the perpetual easements granted herein. 20. Easements and Covenants Run with the Land. Each and all of the easements, covenants, obligations and rights granted or created under the terms of this Agreement are appurtenant to the Property. The provisions of this Agreement shall constitute covenants running with the land, shall be binding upon the parties hereto, their successors and assigns, and shall inure to the benefit of the Grantee, its successors and/or assigns, having or hereinafter acquiring any right title or interest in the Property; provided, however, that in the event of an assignment by Grantee, if the assignee is not a governmental authority, such assignment shall be of no force or effect unless approved in advance by the Grantor in writing, which approval may be conditioned or withheld in Grantor's sole and absolute discretion. 21. Miscellaneous. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The parties to this Agreement have participated in the negotiation of this Agreement and have been represented by legal counsel (or have been afforded the opportunity to do so and have declined). Accordingly, this Agreement shall not be construed more strictly against any one of the parties hereto. The paragraph headings in this Agreement are for convenience only, shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation of this Agreement or any part hereof. With respect to words used in this Agreement, the singular shall include the plural, the plural the singular, and use of any gender in this Agreement shall include all genders. Enforcement of the terms and provisions of this Agreement shall be at the reasonable discretion of the aggrieved party, and no waiver of any of the provisions of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted, and any such waiver shall only be applicable to the specific instance in which it relates and shall not be deemed to be a continuing or future waiver. Each party agrees to execute such further documents as may be reasonably requested by the other party to carry out the intent and purpose of this Agreement. The invalidation of any one of the covenants or provisions of this Agreement by judgment or court order shall in no way affect any other provisions hereof, which shall remain in full force and effect to the maximum extent possible, consistent with such invalidation. 22. Matters of Record. This Agreement is made subject to, and with the benefit of, all matters of record. To the extent the Property is presently encumbered by a mortgage, Grantor agrees to request that its mortgagee join in and consent to this Agreement, and subordinate its mortgage lien to the easements granted herein. 42419059;5 [Signature Pages Follow] 6 Signed, witnessed, executed and acknowledged this day of 0 , 2017. Signed, sealed and delivered in the presence of: Witnesses: t„) ®vc., / Print Name: s� ick fn1 e Jez Print Name: STATE OF FLORIDA ) ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was povk(y1 , 2017 by Scott Geraghty, a Delaware limited liability company, as identification. My Commission Expires: 42419059;5 3420 Collins Avenue, LLC, a Delaware limited liability company acknowledged before me this day of as Manager, on behalf of 3420 Collins Avenue, LLC who i personally known to ma or who has produced 7 "Notary Public, State o'' Florida MAYELIN MUJICA MY COMMISSION # GG043928 • EXPIRES November O8, 2018 Signed, witnessed, executed and acknowledged this 6th day of November , 2017, Signed, sealed and delivered in the presence of: Witne es: Wog, / Nice v. STATE OF FLORIDA ss: COUNTY OF MIAMI-DADE ) City of Miami Beac a Florid municipal r orporation By: Jim y L. Morales, City Manager Attest: Rafael E. Granado, °RA rED. 1) The foregoing instrument was acknowledged before me this 6th day of Nobember , 2017 by Jimmy L. Morales and Rafael E. Granado, as City Manager and City Clerk, respectively, of the City of Miami Beach, a Florida municipal corporation, who are personally known to me or who have produced as identification. My Commission Expires: Notary Public, State of Florida 42419059;5 8 LIUACARDILLO MY COMMISSION # FF 155322 • a EXPIRES; August 27, 2018 • " Bonded Thru Notary Public Underwriters APPROVED AS TO FORM & LANGUAGE & FOR EXE r UTION /7/3 City Attorn Date Exhibit "A" Legal Description of the Property All that property 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 produced Westerly to the waters of Indian Creek, 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, and pages 7 and 8 of the Public Records of Miami -Dade County, Florida. This parcel also described as: Commence at the Northwest corner of said Lot 10; Thence North 82°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°28'02" West, a distance of 7.94 feet; Thence South 11°30'22" West, a distance of 73.30 feet; Thence South 70°04'28" East, along the Western projection of the South line of said Lot 10, a distance of 13.47 feet; Thence North 07°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. 9 42419059;5 JOINDER CONSENT AND SUBORDINATION HSBC BANK USA, NATIONAL ASSOCIATION, a bank organized under the laws of the United States of America, having an address of 452 Fifth Avenue, New York, New York 10018 ("Lender"), is the holder of (i) that certain Mortgage, Assignment of Leases and Rents and Security Agreement recorded in Book 29595, Page 2186 of the Official Records of Miami -Dade County, Florida (the "Official Records"); (ii) that certain Assignment of Leases and Rents recorded in Book 29595, Page 2257 of the Official Records; and (iii) that certain UCC -1 Financing Statement recorded in Book 29595, Page 2272 of the Official Records (collectively, the "Mortgage"). For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender hereby joins in and consents to the foregoing Easement Agreement between 3420 Collins Avenue, LLC and the City of Miami Beach (the "Easement"), and hereby subordinates the lien of the Mortgage to the Easement as if the Easement had been granted and recorded prior to the Mortgage. Executed as an instrument under seal this),P–'61- day of CCFtez. 2017. WITNESSES: Signed, sealed, and delivered in the resence of: 0,4144 4/1, P int Name: Ocol l 7 1 a Print Name: /.e irr Ii! s' STATE OF ) ) ss: COUNTY OF//41/-/-,)Q.7- ) LENDER: HSBC BANK USA, NATIONAL ASSOCIATION By: Ci Wil/ Name: Y'7ie_AA l 5. 604014, - Title: P/1.49_64. -t _ ACKNOWLEDGMENT The foregoing instrument was acknowledged before me this ;-Ort* day of DCFML77'', 2017 by )1tt('W 1 f Y, (4//02 t- , as 1IL i%= -C nat,i/ of HSBC BANK USA, NATIONAL ASSOCIATION, who is personally known to me or who has produced as identification. — My Commission Expires: PUBLIC - 42419059;5 Gc-e ary Public, State of `o.+t,, JOANN HINDS Notary Public - State of Florida My Comm. Expires May 7, 2018_ Commission # FF 120814 Grantee: Easement: Settlement Statement City of Miami Beach, a Florida municipal corporation 1700 Convention Center Drive, 4th Floor, Miami Beach, Florida 33139 3420 Collins Avenue, LLC, a Delaware limited liability company, successor by merger to Collins 3300, LLC, a Delaware limited liability company 3201 Collins Avenue, Miami Beach, FL 33140 Property Location: Out parcel across from 3300 Collins Avenue, Miami Beach, Florida 33140 (See Exhibit A attached) November 6, 2017 Date: , 2017 Settlement Agent: Suzanne A. Dockerty, P.A. 110 Merrick Way, Suite 3B, Coral Gables, Florida 33134 Grantee Settlement Fees: Title Insurance Premium ($112,000): Settlement Fee Balance Due: Clerk of Court Recording Fee: Easement Agreement: Documentary Stamp Tax: Certified Copies: Wire Transfer Fee/FedEx: Total Grantee Settlement Fees: $ 635.00 $ 250.00 $ 86.50 $ 1.05 $ 15.00 $ 100.00 $1,087.55 I have carefully reviewed the Settlement Statement and to the best of my knowledge and belief, it is a true and accurate statement of all receipts and disbursements made on account of this transaction. Grantee: City of Mia > i Beach, a F•rida municipal corporation Approved a to form and Language fo Execution -JP( Exhibit "A" Legal Description All that land lying West of Indian Creek Drive between the north line of Lot 10 in Block 20 as 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, Pages 7 and 8, Public Records of Miami -Dade County, Florida. A portion of Folio No.: 02-3226-001-1430 LIMITED LIABILITY COMPANY AFFIDAVIT STATE OF FLORIDA COUNTY OF MIAMI BEACH BEFORE ME, the undersigned authority, personally appeared the undersigned parties ("Affiants"), who, being first by me duly sworn, depose and say, to the best of -their actual knowledge, without any inquiry or investigation: 1. THAT Affiants are Managers of 3420 Collins Avenue, LLC, a Delaware limited liability company, successor by merger to Collins 3300, LLC, a Delaware limited liability company (the "Company"). 2. THAT, as of the date of this Affidavit, the Company is active and in good standing under the laws of the State of Delaware. 3. THAT the Affiants have full power and authority to sign and deliver to The City of Miami Beach (the "Grantee") on behalf of the Company, all documentation required by the Grantee in connection with the conveyance by the Company of an easement interest in certain land owned by the Company (the `Easement"), including without limitation an Easement Agreement and Closing Affidavit (collectively, the "Conveyance Documents"), as so authorized pursuant to the resolution attached hereto as Exhibit A. 4. THAT the conveyance is in furtherance of the Company's business and consistent with the Company's constituent documents. 5. THAT the Company is managed by its Managers and Members and the officers authorized to bind the company and their respective titles are set forth on Exhibit <B hereto. 6. THAT the Company has never been the subject of a bankruptcy proceeding. 7. THAT the Grantee, Old Republic Title Insurance Company ("Tide Company") and Suzanne A. Dockerty, P.A. as agent for Title Company, may rely on this Affidavit in connection with the•Easement. Affiants further state that they are familiar with the nature of an oath and what the penalties provided by the laws of the State of Florida are for falsely swearing to statements made in an instrument of this nature, and Affiants further certify that they have read, or have heard read to them, the full facts of this Affidavit and .understand its contents. [NO FURTHER TEXT /SIGNATURE PAGE FOLLOWS] 43156616;3 3420 Collins Avenue, LLC, a Delaware limited liability company, as successor by merger to Collins 3300, LLC, a'Delaware [les liability company By: By: Scott Geraghty, radley .yden, ger SWORN and SUBSCRIBED before me this5 day of 2017 by Scott Geraghty, as Manager of 3420 Collins Avenue, LLC, a Delaware limited liability company, as successor by merger to Collins 3300, LLC, a Delaware limited liability company, [DI who is personally known to me or [ ] who has produced as identification. My Commission Expires: (t. (D•( Notary ublic State of 0 (.6(4 iii:, MAYEUN• MUJICA "' 4► :`a MY COMMISSION # GG043928 „0 EXPIRES November 06, 2018 SWORN and SUBSCRIBED before me this3& day of K r 2017 by Bradley Hayden, as Manager of 3420 Collins Avenue, LLC, a Delaware limited liability company, as successor by merger to Collins 3300, LLC, a Delaware limited liability company, k who is personally known to me or.[ ] who has produced as identification. My Commission Expires: Notary Public, State of 43156616;3 o dc MAYELIN MUJICA " .. ,•_ MY COMMISSION # GG043928 EXPIRES November 06, 2018 EXHIBIT A (Resolution) 43156616;3 3420 COLLINS AVENUE, LLC ACTION BY CONSENT OF MANAGERS As of October 30 2017 The undersigned, being Managers of 3420 Collins Avenue, LLC, a Delaware limited liability company, successor by merger to Collins 3300, LLC, a Delaware limited liability company (the "Company"), hereby adopt the following resolutions, effective as of the above - noted date, such consent being given to the extent, if any, that such consent is required to be given under the Company's limited liability company agreement, as amended: RESOLVED: That the Managers of the Company hereby consent to and authorize and direct the Company (i) to execute, acknowledge and deliver an instrumentconveying an easement to the City of Miami Beach, Florida over land owned by the Company, situated between Indian Creek and Indian Creek Drive; and (ii) to take all actions, do all things, and execute such documents, certificates, instruments, affidavits and the like, including, without limitation, a closing affidavit and a limited liability company affidavit, as may be necessary, advisable, convenient or proper to grant said easement; and FURTHER RESOLVED: That the officers of the Company, and specifically, Scott Geraghty and Bradley Hayden, each a Manager of the Company, acting singly, be and hereby are authorized and empowered to do and perform all such acts and things and execute any further documents as may be necessary, advisable, convenient or proper to carry into effect the purposes and intent of the foregoing resolution. [Signature Page follows] 43164283:1 EXECUTED UNDER SEAL as of the date first written above. Bradley H den 43164283;1 EXHIBIT B 3420 Collins Avenue, LLC, a Delaware limited liability company, successor by merger to Collins 3300, LLC, a •Delaware limited liability company Name: Title: 43156616;3 Closing Affidavit (Grantor) Before me, the undersigned authority, personally appeared the undersigned ("Affiant"), who being by me first duly sworn, on oath, depose(s) and say(s), to the best of his/"her actual knowledge, without any inquiry or investigation, that: 1, 3420 Collins Avenue, LLC ("Grantor") owns the following property (the "Property"): All that land lying West of Indian Creek Drive between the north line of Lot 10 in Block 20 as 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, Pages 7 and 8, Public Records of Miami -Dade County, Florida. 2. Grantor is granting a non-exclusive easement to the City of Miami Beach, a Florida municipal corporation ("Grantee") over the Property (the "Easement"). 3. The Property is free and clear of all liens, taxes, encumbrances and claims of every kind, nature and description of record whatsoever, except for (i) those matters described in that certain title insurance commitment issued by Old Republic National Title Insurance Company Commitment, Fund File Number 438229, effective July 16, 2017 (the "Commitment"), a copy of which is attached as Exhibit A to this Affidavit, and (ii) real estate and personal property taxes for the year 2017, which are not yet due and payable, 4. There have been no improvements, alterations, or repairs to the Property for which the costs thereof remain unpaid, that there are no claims for labor or material furnished for repairing or improving the same, which remain unpaid, and that there are no mechanic's, materialmen's, or laborer's liens since acquisition by Grantor against the Property, 5. There have been no documents recorded in the. Public Records of Miami -Dade County, Florida subsequent to July 16, 2017, which affect title to the Property, and Grantor has not entered into any contracts for the sale, disposition or leasing of the Property since said date except as may have been disclosed to SUZANNE A. DOCKERTY, P.A. in writing, and Affiant has no knowledge of any matter affecting title to the Property not set forth in the Commitment. 6. Affiant knows of no violations of Municipal or County Ordinances pertaining to the Property. No judgment or decree has been entered in any court in this State or the United States against said Grantor which remains unsatisfied. There are no persons other than Grantor in possession of the Property. 7. There are no matters pending against the Grantor that could give rise to a lien that would attach to the Property within the next ninety (90) days. "Grantor has not executed any instruments that would adversely affect the non-exclusive easement interest to be insured. 8. Grantor's title to, and possession and enjoyment of, the Property have been open, notorious, peaceable and undisturbed, and have never been disputed nor questioned. 9, There are no disputes concerning the boundary lines of the Property. 10. Affiant has received no notice of any public hearing regarding assessment for improvements or changes in applicable zoning laws concerning the Property within the past ninety (90) days, 11. There are no actions or .proceedings in bankruptcy, receivership or insolvency, nor are there any judgments, bankruptcies, liens or executions of any nature which constitute or could constitute a charge or lien upon the Property. 12. There are no unrecorded easements, claims of easement or rights-of-way affecting all or any portion of the Property. File Number: «Closing» DoubleTime 42772736;2 13. SUZANNE A. DOCKERTY, P.A. and Old Republic National Title Insurance Company may rely upon the statements set forth herein in issuing title insurance for the Easement. "Affiant", "Grantor" and "Grantee" include singular or plural as context so requires or admits. Affiant further states that he/she is familiar with the nature of an oath and with the penalties as provided by the laws of the United States and the State of Florida for falsely swearing to statements made in an instrument of this nature. Affiant further certifies that he/she has read, or heard read, the full facts of this Affidavit and understands its context. Under eLalties of erjury, I declare that I have read the foregoing Affidavit and that the facts stated in it are true as of this day of Mber2017. By: 3420 COLLINS AVENUE, LLC, a Delaware limited liability company, as successor by merger to Collins 3300, LLC, a Delaware limited liability company radley H. - : en, Manager By: SBRE MANAGEMENT, LLC, its Manager Closing Affidavit (Seller) - Page 2 File Number: «Closing» 42772736 DoubieTime STATE OF Thrt COUNTY OF ) ss: The foregoing instrument was sworn to and subscribed before me this .1 day ofd 2017 by Scott Geraghty, as Manager of 3420 Collins Avenue, LLC, a Delaware limited liability company, as successor by rnerger to Collins 3300, LLC, a Delaware limited liability company, on behalf of the company, [11Who is personally known to me or [ ] who has produced as identification. My Commission Expires: STATE OF i tV r 1 `- . COUNTY OF Dad ) ss: Notary Public, State o , MAYELIN MUJICA ;*= MY COMMISSION # GG043028 ef'f` EXPIRES November 06, 2018 The foregoing instrument was sworn to and subscribed before me this Iay of Ve r 2017 by Bradley Hayden, as Manager of 3420 Collins Avenue, LLC, a Delaware limited liability company, as successor by merger to Collins 3300, LLC, a Delaware limited liability company, on behalf of the company, [L]4ho is personally known to me or [ ] who has produced — as identification. My Commission Expires: / ' CO STATE OF COUNTY OF Ale k Yow L ) ss: Notary Public, State MAYELIN MUJICA " •`_ MY COMMISSION # 0G043928 'I EXPIRES November 06, 2018 The foregoing instrument was sworn to and subscribed before me this rl day of to 4h 2017 by Alejandro Moreno, as Manager of SBRE Management, LLC, the Manager of 3420 Collins Avenue, LLC, a Delaware limited liability company,, as successor by merger to Collins 3300, LLC, a Delaware limited liability company, on behalf of the company, [ 06 ] who is personally known to me or [ ] who has produced as identification. My Commission Expires: Closing Affidc vit (Seller) - Page 3 File Number: «Closing» 42772736;2 -Notary Public, Se of MIRA FINKELSTEIN Notary Public, State Of New York No. 01F15089076 Qualified In Richmond County Certificate filed in New York County Commission Expires December 8, 20 DoubleTime® STATE OF0 Da.k COUNTY OF g ) ) ss: The foregoing instrument was sworn to and subscribed before me this '1 day of © bek- 2017 by Jonah Sonnenborn, as Manager of SBRE Management, LLC, the Manager of 3420 Collins Avenue, LLC, a Delaware limited liability company, as successor by merger to Collins 3300, LLC, a Delaware limited liability company, on behalf of the company, [, ] who is personally known to me or [ ] who has produced as identification, My Commission Expires: Notary Public, State of Closing Affidavit (Seller) a Page 4 File Number: «Closing» 42772736;2 CAROL NAGOURNEY Notary Public • State of New York No. 01 NA6285965 Qualified in New York unty Commission Expires %I( DoubleTime® Exhibit A Title Insurance Commitment File Number: «Closing» DoubleTime® 42772736;2 OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT Schedule A Fund File Number: 438229 Effective Date: Agent's'File Reference: Premium: July 20, 2017 at 11::00 PM 247174-31 1. Policy or Policies to be issued: Proposed Amount of Insurance: OWNER'S: ALTA Owner's Policy (06/17/06). (With Florida Modifications) $112,000,00 Proposed Insured: City of Miami Beach, a Florida municipal corporation MORTGAGEE: Proposed Insured: MORTGAGEE: Proposed Insured: 2. The estate or interest in the Land described or referred to in this Commitment is Easement, 3. Title to the FEE SIMPLE estate or interest in the Land is at the - Effective Date vested in: 3420 Collins Avenue, LLC, a Delaware limited liability company, successor by merger to Collins 3300, L -LC, a Delaware limited liability company 4. The Land referred to in this Commitment is described as follows: All that land lying West of Indian Creek Drive between the north line of Lot 10 in Block 20 as 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, Pages 7 and 8, Public Records of Miami -Dade County, Florida, Issuing Agent: Suzanne A. Dockerty 110 Merrick Way Suite 3-B, Coral Gables, FL 33134 Form CF6-SCH_-A (rev, 12)10) (With Florida -Modifications) OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY 41X) Second Avenue South, Minrnmpolts, MN 55401, (612) 371st 111 Page 1 of 4 Agent No,: 2226400 Agent's Signature Suzanne A. Dockerty OLD PUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT Schedule B -I Fund File Number: Agent's File Reference: 438229 247174-31 L The following are the requirements to be complied with: 1. Payment of the full consideration to, or for the account of, the grantors or mortgagors. 2. Instruments creating the estate or interest to be insured which must be executed, delivered and filed for record: A. Easement Agreement from 3420 Collins Avenue, LLC, a Delaware limited liability company, successor by merger to Collins 3300, LLC, a Delaware limited liability company to the proposed insured purchaser(s), 3. Record partial Release of the lien of the mortgage from 3420 Collins Avenue, LLC, a Delaware limited liability company to HSBC Bank USA, N.A. recorded in O.R. Book 29595, Page 2186, Public Records of Miami -Dade County, Florida, as to the subject property. 4. Record release or reassignment of the assignment of Rents, Leases, Profits, and Contracts recorded April 29, 2015, in O.R. Book 29595, Page 2257, Public Records of Miami -Dade County, Florida. 5. Record termination (or release as to the subject property) of the Financing Statement recorded April 29, 2015, in O.R. Book 29295, Page 2272, Public Records of Miami -Dade County, Florida. 6. Satisfaction as to the subject property of the judgments and/or liens against 3420 Collins Avenue, LLC„ or a similar name, certified copies of which are recorded in the following O.R.'Books and Pages: O.R. Book 30314, Page 1245; O.R. Book 30326, Page 3317; O.R. Book 30387, Page 4481; O.R. Book 30451, Page 639. 7. Satisfactory evidence must be furnished establishing that 3420 Collins Avenue, LLC, a Delaware limited liability company, successor by merger to Collins 3300, LLC, a Delaware limited liability company is duly organized, validly existing, and in good standing under the laws of Delaware (at date of acquisition of the interest or lien on the insured property and at the present time, or at date of purchase and at date of sale). 11. there is no governmental agency in charge of business entity records from which a certificate of good standing can be obtained, then an attorney or notary public in the state or country of origin, who has examined the appropriate business entity records, can provide the certificate. 8. A determination should be made that the member or manager authorizing the transaction or executing the instruments to be insured is not a debtor in bankruptcy and has not been a debtor in bankruptcy since becoming a member or manager of the limited liability company. If the LLC is a sole member LLC, then a determination should be made that there are no creditors who have acquired or are attempting to acquire control of the LLC by executing on or attaching or seizing the member's interest in the LLC. These determinations may be made by an affidavit of the member executing the instruments to be insured. 9. A determination should be made that the limited liability company is not one of a family or group of entities. If the limited liability company is one of a family or group of entities, determine that none of the other entities in this family or group of entities is a debtor in bankruptcy. For these determinations Fund members may rely on an affidavit of the person executing the instruments to be insured, In the event that one or more of the other entities is a debtor in bankruptcy, Fund Underwriting Counsel must approve the transaction before title is insured. 10, For foreign or non -United States limited liability companies: confirm the proper persons to execute a deed, mortgage, or other instruments to be insured on behalf of a limited liability company by the laws of the domicile of the company. This may require a legal opinion from an attorney licensed to practice law in the place of domicile of the foreign limited liability company. 11. A search commencing with the effective date of this commitment must be performed at or shortly prior to the closing of this transaction. If this search reveals a title defect or other objectionable matters, an endorsement will be issued requiring that this defect or objection be cleared on or before closing. Form CF6• Schedule B -t (rev, 121(0) Page 2 of 4 OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT Schedule B-I.(continued) Fund File Number: Agent's File Reference: 438229 247174-31 12. Affidavit to be executed by 3420 Collins Avenue, LLC, a Delaware limited liability company, successor by merger to Collins 3300, LLC, a Delaware limited liability company stating: 1) There are no matters pending against the affiant that could give rise to a lien that would attach to the property between and the recording of the interest to be insured. 2) That the affiant(s) have not and will not execute any instruments that would adversely affect the interest to be insured. 13. Affidavit from the owner of the subject property, or some other person having actual knowledge, establishing that no person other than the owner is in possession. 14, Affidavit from a reliable person must be furnished establishing that more than 90 days has elapsed since the completion of all improvements for which payment has not been made in full. 15. The Company has no liability under this commitment for the issuance of a mortgagee policy until an endorsement is issued stating the name of the proposed insured mortgagee. The Company reserves the right to make additional requirements, including but not limited to, review of additional documentation regarding the proposed insured purchaser. Form CF6- Schedule^ B.1 continued (n:v. 12110) Page 3 of 4 OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT Schedule B -I1 Fund File Number; Agent's File Reference: 438229 247174-31 IL Schedule B of the Policy or Policies to be issued will contain exceptions to the following rnatters unless the same are disposed of to the satisfaction of the Company: I. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the Public Records or attaching subsequent to the Effective Date hereof but prior to the date the Proposed Insured acquires for value of record the estate or interest or Mortgage thereon covered by this Commitment. 2. a. General or special taxes and assessments required to be paid in the year 2017 and subsequent years. b. Rights or claims of parties in possession not recorded in the Public Records. c. Any encroachment, encumbrance, violation, variation, or adverse circumstance that would be disclosed by an inspection or an accurate and complete land survey of the Land and inspection of the Land, d. Easements, or claims of easements, not recorded in the Public Records. e. Any lien or right to a lien, for services, labor or material furnished, imposed by law and not recorded in the Public Records. 3, Any Owner Policy issued pursuant hereto will contain under Schedule B the following exception: Any adverse ownership claim by the State of Florida by right of sovereignty to any portion of the. Lands insured hereunder, including subnterged, filled and artfficially exposed lands, and lands accreted to such lands. 4. Any lien provided by County Ordinance or by Chapter 159, F.S., in favor of any city, town, village or port authority, for unpaid service charges for services by any water systems, sewer systems or gas systems serving the land described herein; and any lien for waste fees in favor of any county or municipality. 5. All matters contained on the Amended Map of The Ocean Front Property of the Miami Beach Improvement Company, as recorded in Plat Book 5, Page 7, Public Records of Miami -Dade County, Florida. 6. Subsurface Easement Agreement recorded in O.R. Book 28757, Page 2340, Public Records of Miami -Dade County, Florida. 7. Riparian and littoral rights are not insured. 8. Rights of the United States of Arnerica and/or the State of Florida to any portion of said land which has been created by artificial means or has accreted to any such portion as so created, 9, Those portions of the property herein described being artificially filled in land in what was formerly navigable waters, are subject to the right of the United States Government arising by reason of the United States Government control over navigable waters in the interest of navigation and commerce, 10, The rights, if any, of the public to use as a public beach or recreation area any part of the land lying or formerly lying between the body of water abutting the subject property and the natural line of vegetation, bluff, extreme high-water line or other apparent boundary lines separating the publicly used area from the upland private area, as it may have existed prior to the construction, if any, of sea wall or bulkhead thereon. 11, This policy does not insure any portion of the insured parcel lying waterward of the mean -high water line of Indian Creek, 12, Rights of the lessees under unrecorded leases. 13. Partial Release of Parking Space Use Covenant in Lieu of Unity of Title recorded in O.R. Book 28474, Page 1132, Public Records of Miami -Dade County, Florida. 14. Partial Release of Covenant in Lieu of Unity of Title for Off -Site Parking recorded in O.K. Book 28689, Page 1676, Public Records ofMiami-Dade County, Florida. Form CF6-SCEI-B41 (rev. 12110) Page 4 of 4 OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT Schedule 8-11 (continued) Fund File Number: Agent's File Reference: 438229 247174-31 15, Partial Release of Declaration of Restrictive Covenants recorded in O.R. Book 28822, Page 924, Public Records of Miami -Dade County, Florida, 16, Partial Release of Covenant in Lieu of Unity of Title recorded in 0,R. Book 29029, Page 4442, Public Records of Miami -Dade County, Florida, 17, Partial Release of Parking Space Agreement recorded in O.R. Book 29758, Page 4620, Public Records of Miami -Dade County, Florida, 18. Partial Release of Declaration of Restrictive Covenants Regarding Improvements in the Public Right -of - Way recorded in O.R. Book 30249, Page 2982, as amended by First Amendment recorded in O.R. Book 30608, Page 1541, all of the Public Records of Miami -Dade County, Florida, Form CFO. Schedule B.I1 continued (rev I'VE 0) Page 5 of 4