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Easement Agreement with Merl Manor Condominium Association, Inc. , 70/ 7 0297yq This 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 Easement Agreement This Easement Agreement ("Agreement") is made this 10 day of (A-i u— , 2018, by and between MERL MANOR CONDOMINIUM ASSOCIATION, INC., a Florida corporation; whose address is C/O Beach Properties, Inc., P.O. Box 403818, Miami Beach, FL 33140-1818 ("Grantor") and 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 or may be referred to herein individually as a "party" or collectively as "parties"). WHEREAS, pursuant to Florida Statutes Section 718.111(10), Grantor has authority to enter into this Agreement and to grant a perpetual. non-exclusive easement appurtenant to 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 the Waterbody to benefit Grantor and other property owners abutting Indian Creek 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, at minimum, 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 and/or other type of walkway for public access and use (collectively, the "initial City Improvements'); and WHEREAS, Grantor 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 to, construct, install and maintain the initial City Improvements, which will include the demolition of the existing seawall; and 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 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 Easement. 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 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 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 construct, install, repair, replace, upgrade or maintain the New Seawall or any future seawall developments. 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. install utilities, and take all other actions on the Property necessary to develop City Improvements or operate Public Related Uses. 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 the City Improvements or Public Related Uses developed on the Property. 3. Public Related Uses. As referred to herein, Public Related Uses shall include, without limitation, a seawall/retaining wall, flood mitigation elements, a greenway, public transportation stops, kiosks, bicycle paths, walkways and decks, parks, playgrounds, lighting, utilities or any other improvements and activities associated with the use of the Property by the general public or which, in Grantee's reasonable discretion, are deemed necessary for the protection of the health, safety or welfare of the general public. 4. City Improvements. Grantee will have the right to construct, install, operate, repair, replace, upgrade and maintain, at its sole cost and expense, improvements in connection with any Public Related Uses (the "City Improvements"). 2 5. Grantee Obligations. Grantee will cause plans and specifications to be prepared for any construction work related to the installation of any City Improvements (collectively the 'Work") and obtain any and all governmental permits and approvals required in connection with the Work (the "Permits"). Grantor will approve said plans and specifications (the "Approved Plans"). Grantor shall not withhold, condition or delay the approval of the plans and specifications relating to the Work. Upon completion of the Work, Grantee will accept ownership of the City Improvements, and will assume the sole responsibility to maintain the City Improvements 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 and all federal, state and local laws, rules, ordinances, and regulations (collectively, the "Laws") applicable thereto. Notwithstanding the foregoing, should Grantor develop a dock, contiguous to the Seawall Area, Grantor 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 and all Laws applicable thereto. 6. Except with respect to Grantor's Improvements (as defined in Section 8), Grantee shall be responsible for maintaining the Property in a good and safe condition. Grantee's responsibility with respect to the installation of any 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. 7. Grantor Obligations. At all times, Grantor will cooperate and provide support to 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 to connection therewith. In furtherance thereof, Grantor hereby grants the Grantee a power of attorney to execute and submit all such applications and documentation required by any governmental authority (including the Board of Trustees of the Internal Improvement Fund of the State of Florida) having jurisdiction over the Property or the sovereign lands, which may be necessary to obtain the Permits and perform the Work in accordance with the Approved Plans. 8. Grantor's Improvements. Grantor shall have the right to construct, install, operate, repair, replace, upgrade and maintain, at its sole cost and expense, a dock, to be developed contiguous to the Seawall Area ("Grantor's Improvements"). Grantor will not make any improvements to the Property, except for the dock Improvements described herein. 9. Access. Grantor shall not withhold or obstruct Grantee's access to the Property, City Improvements or Public Related Uses through the installation of a fence or any other means. 3 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 providing that same is 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. Indemnification. Grantor, and its successors and assigns, expressly 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 act or omission. In consideration of this Agreement, Grantee, its successors and assigns, to the extent allowable by law, and subject to the limitation on Grantee's liability, as set forth in Section 768.28, Florida Statutes, 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 loss, liability, damages, claims, costs, attorneys' fees and expenses (collectively "Losses"), arising out of or relating to the Grantee's negligent or wrongful act or omission. Additionally, nothing contained in this Agreement shall be deemed a waiver of sovereign immunity by the Grantee. 13. 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: 0/0 Beach Properties Inc. P.O. Box 403818 Miami Beach, FL 33140 With a copy to: 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 a- 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. 14. 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 4 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. 15. 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. 16. 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. 17. Grantor Representations. Grantor covenants, warrants and represents (i) that Grantor has the authority to grant the perpetual easements granted herein, and (ii) there are no lienholders on the Property. 18. 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. 19. 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. The Grantor agrees to execute such further documents as may be reasonably requested by Grantee 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. [Signature Pages Follow] 5 Signed, witnessed, executed and acknowledged this 3 day of Npv. i e✓ , 2018. Signed, sealed and delivered in the presence of: Merl Manor Condominium Association, Inc., a Florida corporation Witnesses: LL, � ���/9 1 By. F 1 _ " �L •�V\ -L \ P3 �/ _ Print Name: H--e0 URI f E/1-1 Fri Title: P R a S cc r . Prat Print Ndme: STATE OF FLORIDA ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before - this 3 day of RDM L- , 2018 by \- on- t2 ht,vsrE,N , as r - lLt C —c fc,S5 , on behalf of Merl Manor Condominium Association, Inc., a Florida corporation, [ ] who is personally known to me or [ ] who has producedI as identification. ] �l My Commission Expires: Notary P, blit, State .f FI ri. 741P- Mrru wayNEXGER , a �°:•••�, MY COA93S'AN/GC 011831 EIIPIRES:MquM L,1020 �o.M1�'� IYb1 M.}Eai Ndrybmdr 6 Signed, witnessed, executed and acknowledged this /2 day of 402, , 2017. Signed, sealed and delivered in the presence of: City of Miami Beach, a Florida mu cipal corporation e es: p (VVitn r) it By: toner - Jimmy LI orales, ity Manager fYC flg IA SLCvA Pri 1-/ : fe.." .. ��� Attest: J a i7 o 74/74/4,/j� Li 11C 'Icf Print Name: fr Rafael E. Granado, lerk STATE OF FLORIDA ) ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this 10th day of April, . 2018 by Jimmy L. Morales and Rafael E. Granado, as City Manager and City Clerk, respectively, of the City of Miami Beach, a Florida /mu/�niicippaal�co�rporation, who are personally known to me or who have produced .� / F�iLJ as identification. KG+ My Commission Expires: Notary Public, State of Florida r LILA cMDILLO `R,,,..k MY COMMISSION FE 155322 4:. W EXPIRES.August 27,2018 '•••.AL^a: Bonded Thru Navy PubleUokrvfzn APPROVED AS TO FORM & LANGUAGE & FO ELUTION Easement-updated 10-11-2017 4^ 9 - i 7 02 City Attorney Lir Date Exhibit "A" Legal Description Beginning at a point on the West line of Indian Creek Drive as the same in shown, marked and designated on the Amended Map of the Ocean Front Property of the Miami Beach Improvement Company, recorded in Plat Book 5, page 7 and 8 of the Public Records of Dade County, Florida, which point is at the Southwest corner of the intersection of Twelfth Street and said Indian Creek Drive and immediately across said Indian Creek Drive from the Northwest corner of Lot 17, Block 24, as shown by said Amended Map; thence in a Southwesterly direction along the said West line of said Indian Creek Drive to a point which would be intersected by the South line of said Lot 17, if extended Westwardly; thence Westwardly on the line of said South line of Said Lot 17 if extended Westerly to the high water line of Indian Creek; thence Northwardly along the high water line of said Indian Creek to a point where the North line of said Lot 17 would intersect said high water line of Indian Creek if extended Westwardly thence Eastwardly along the North lien of said Lot 17, if extended Westwardly to the point of beginning, together with any and all riparian rights and submerged lands adjacent thereto; same being a small strip of land and all riparian rights and submerged lands adjacent and appurtenant thereto lying opposite said Lot 17 and on the West side of said Indian Creek Drive. ALSO that Tract of land lying between the North and South lines of said Lot 18, produced Westerly to Indian Creek as shown by said Plat lying between Indian Creek Drive and said Indian Creek. ALSO that strip of land lying between the Western boundary line of Indian Creek Drive and the Eastern boundary line of Indian Creek and between the Northern boundary line of Lot 19 and Southern boundary line of Lot 20 produced to the water of Indian Creek of said Block 24 together with riparian rights and adjacent or appurtenant thereto as the same is shown by an Amended Map of Plat of Ocean Front Property of Miami Beach Improvement Company, recorded in Plat Book 5, Page 7 and 8 of the Public Records of Dade County, Florida. A portion of Folio No: 02-3226-011-0001 8 Exhibit"A" Legal Description Beginning at a point on the West line of Indian Creek Drive as the same in shown, marked and designated on the Amended Map of the Ocean Front Property of the Miami Beach Improvement Company, recorded in Plat Book 5, page 7 and 8 of the Public Records of Dade County, Florida, which point is at the Southwest corner of the intersection of Twelfth Street and said Indian Creek Drive and immediately across said Indian Creek Drive from the Northwest corner of Lot 17, Block 24, as shown by said Amended Map: thence in a Southwesterly direction along the said West line of said Indian Creek Drive to a point which would be intersected by the South line of said Lot 17, if extended Westwardly; thence Westwardly on the line of said South line of Said Lot 17 if extended Westerly to the high water line of Indian Creek; thence Northwardly along the high water line of said Indian Creek to a point where the North line of said Lot 17 would intersect said high water line of Indian Creek if extended Westwardly thence Eastwardly along the North lien of said Lot 17, if extended Westwardly to the point of beginning, together with any and all riparian rights and submerged lands adjacent thereto; same being a small strip of land and all riparian rights and submerged lands adjacent and appurtenant thereto lying opposite said Lot 17 and on the West side of said Indian Creek Drive. ALSO that Tract of land lying between the North and South lines of said Lot 18, produced Westerly to Indian Creek as shown by said Plat lying between Indian Creek Drive and said Indian Creek. ALSO that strip of land lying between the Western boundary line of Indian Creek Drive and the Eastern boundary line of Indian Creek and between the Northern boundary line of Lot 19 and Southern boundary line of Lot 20 produced to the water of Indian Creek of said Block 24 together with riparian rights and adjacent or appurtenant thereto as the same is shown by an Amended Map of Plat of Ocean Front Property of Miami Beach Improvement Company, recorded in Plat Book 5, Page 7 and 8 of the Public Records of Dade County, Florida. A portion of Folio No.: 02-3226-011-0001 c2OI7 -0?y7y2 Settlement Statement Grantee: City of Miami Beach,a Florida municipal corporation 1700 Convention Center Drive,47 Floor,Miami Beach, Florida 33139 Grantor: Merl Manor Condominium Association, Inc.,a Florida not for profit corporation CIO Beach Properties Inc., P.O. Box 403818, Miami Beach,FL 33140-1818 Property Location: 3535 Indian Creek Drive,Miami Beach, Florida 33140(See Exhibit A attached) Date: .2018 Settlement Agent: Suzanne A.Dockerty,P.A. 110 Merrick Way,Suite 3B,Coral Gables, Florida 33134 Consideration Amount$10.00 Grantee Settlement Fees: Title Search Reports and Updates: (POC $300) $ 0 Title Insurance Premium($337,600): $1,763.00 Settlement Fee: (POC$250) $ 750.00 Clerk of Court Recording Fee: Easement Agreement: $ 69.50 Documentary Stamp Tax: $ 1.05 Certified Copies: $ 25.00 Wire Transfer Fee/FedEx: $ 100.00 Total Grantee Settlement Fees: $ 2,708.55 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 Miam Beach,a Flo-da municipal corporation By: Print Name le: Approv to atl a wage for Execution By: p�t11``�x J 4 - q (� City Attorney okM--'