Maintenance and Use Easement Agreement with Sunset Islands Property Owners, Inc. P-018 30817
EXHIBIT"C"
This Instrument Was Prepared By
And Should be Returned To:
Raul J. Aguila, City Attorney
City of Miami Beach
1700 Convention Center Drive
4th Floor
Miami Beach, FL 33139
[For Clerk's Use Only]
MAINTENANCE AND USE EASEMENT AGREEMENT
THIS IS A MAINTENANCE AND USE EASEMENT AGREEMENT ("Easement")
dated this 23 day of An c , 201$ , by and between the City of Miami Beach, Florida,
whose address is 1700 Convention Center Drive, Miami Beach, Florida, 33139 (hereinafter
referred to as the "Grantor" or "City") and Sunset Islands Property Owners, Inc. ("Grantee" or
"HOA") (each, a"Party" and collectively, the "Parties").
WHEREAS, the Grantor is the owner of the Gate House located at 1356 W 29 Street,
Miami Beach Florida 33140-4273 (folio # 9388353583 ROW) (the "Gate House"), as well as the
other improvements located in the public right of way along W 29 Street, as more particularly
described in Exhibit"1"hereto (the "Easement Area"); and
WHEREAS, the Grantee serves as the homeowners association for Sunset Islands 1 and
2; and
WHEREAS, on or about 14(1 2S , 2018, the Mayor and City Commission adopted
Resolution No. 2018-.3011[7 , approving an agreement between the City and the HOA for the
funding of certain improvements to the existing Gate House, and the construction of a new Gate
House Kiosk along the center median of West 29`h Street ("Kiosk"), among other specified
improvements (the "Agreement"); and
WHEREAS, Grantor has agreed to convey a non-exclusive easement to the HOA to
memorialize the HOA's agreement to maintain, operate and use the Easement Area, including
the Gate House and the Kiosk, for purposes of providing general security guard services for the
benefit of Sunset Islands I and 2.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Grantor and the Grantee hereby agree as follows:
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1. Recitals. The foregoing recitals are true and correct and incorporated herein by
reference.
2. Grant of Easement; Use. Grantor hereby grants, bargains, sells and conveys to the
Grantee, its successors and assigns, a perpetual, non-exclusive easement in gross, in, on, over,
through, and across the Easement Area described on Exhibit "A" attached hereto and
incorporated herein by reference, for the operation, maintenance, repair and use of the Easement
Area for the limited purpose of providing security guard services and management of the
structures or other elements of the entrance features thereon. The easement granted hereunder
shall be subject to all matters of record and all applicable laws, and shall be subordinate to any
public utility easement dedicated to the public, as the term "public utility" is defined in Section
I77.031(7)(b), Florida Statutes, including, without limitation, the FPL easement referenced in
Exhibit"1."
3. Grantee Responsibility for Costs and Expenses. Grantee shall operate, maintain,
repair and use the Easement Area at its sole cost and expense. Grantee shall be solely
responsible for the operation and maintenance of the Gate House, Kiosk, security arms and any
related security guard services or equipment provided within the Easement Area, including,
without limitation, providing or contracting with a third-party vendor to provide security
services, security systems and software and repairs thereof, maintenance or repairs of the gate
arm and access control system, and the personal property or other equipment located within the
Easement Area,janitorial, utilities, telephone, removal of trash or other waste or debris material,
hardscape, lighting and landscaping, if any, within the Easement Area. Grantee shall maintain
the Easement area in a clean and neat condition.
In no event shall the Grantor have any responsibility whatsoever for the operation or day-
to-day maintenance or repairs of' the Easement Area and the improvements included
therein, or to provide for any security guard services or management of the entrance
features within the Easement Area, including, without limitation, the operation of the
security arms,the Gate House, and Kiosk.
4. Access. Grantee shall be solely responsible for providing card readers, remote
controls, or other means of access for residents of Sunset Islands 1 and 2, as may be determined
by Grantee, and shall further ensure that access to the general public and emergency vehicles is
not impeded or denied (except for the reasonably limited period of time as necessary to maintain
the visitors log and/or activate the security arms).
5. Alterations to Easement Area. The Grantor shall have the right and privilege
from time to time to alter, improve, enlarge, add to, change the nature or physical characteristics,
and replace, remove or relocate any improvements provided that they are located in, upon, over,
through and across the Easement Area only, along with all rights and privileges necessary or
convenient for the full benefit and use thereof for the purposes described in the Easement,
including but not limited to the right to clear obstructions within and to the Easement Area.
Grantee shall not alter the exterior of the structures located in the Easement Area, except with the
prior written approval of the Grantor's City Manager.
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6. Responsibility for Damages. Each Party shall be responsible for damage caused
to the Easement Area, if and to the extent such damage is due to that Party's own negligence or
willful misconduct in the operation, maintenance or use of the Easement Area, or the negligence
or willful misconduct of its employees, contractors, or agents with respect to the operation,
maintenance or use of the Easement Area.
7. Insurance by Grantee. Grantee shall maintain a general liability insurance policy
with coverage sufficient to cover Grantee's liability exposure related to its operation,
maintenance or use of the Easement Area, provided, however, that such general liability policy
shall be in an amount not less than $1,000,000 combined single limit per occurrence for bodily
injury and property damage. Grantee shall cause for its third-party contractors to maintain
general liability insurance sufficient to cover its liability exposure related to the performance of
any services within the Easement Area, provided, however, that such general liability policy
shall be in an amount not less than $1,000,000 combined single limit per occurrence for bodily
injury and property damage. The City shall be named as an additional insured on such policies.
Grantee shall provide City with a certificate of insurance evidencing the City's additional insured
status upon request. Notwithstanding any provision to the contrary herein, the Grantee shall be
solely responsible for any personal property or equipment maintained within the Easement Area,
and
8. Property Insurance by Grantor; Repairs. Grantor shall insure the Gate House and
Kiosk structure as part of its master property insurance policy. In the event the Gate House and
Kiosk is damaged or destroyed by fire, windstorm or other casualty not due to Grantee's
negligence, and such damage is covered by the Grantor's insurance policy, Grantor shall, as soon
as practicable thereafter, utilize any insurance proceeds (if any) to cause such damage to be
repaired. Grantor shall have no obligation to identify additional funding for such repairs (beyond
application of insurance proceeds, if any), and any such funding appropriation, if any, shall be at
the sole and absolute discretion of the Grantor's City Commission and subject to availability of
funds. If, following any such casualty, the available insurance proceeds, if any, are insufficient
to complete the repairs, Grantee may, at its sole discretion, identify additional funds to complete
the repairs and continue the operation and use of the Easement Area. In the event the Parties
cannot mutually identify sufficient funding to complete any such repairs within 180 days
following any casualty, this Easement shall terminate, and neither Party shall have or owe any
further obligation to the other Party. Notwithstanding the provisions herein, in no event shall
Grantor insure any personal property or equipment located in the Easement Area, as Grantee
shall be solely responsible for any such personal property or equipment located in the Easement
Area.
9. Grantor's Sovereign Immunity. No provision contained in this Agreement shall
be construed or deemed a waiver of Grantor's sovereign immunity, or of the limitations set forth
in Section 768.28 of the Florida Statutes.
10. Indemnity. In consideration for this Easement, Grantee expressly agrees to
indemnify, defend, protect and hold harmless Grantor against any and all claims, losses,
damages, injuries, arising from Grantee's operation, maintenance and/or use of the Easement
3
Area. However, nothing herein shall be deemed to indemnify Grantor from any liability or claim
arising out the negligence of Grantor.
11. Covenant Running with the Land All of the benefits, burdens, easements, and
agreements contained herein shall constitute covenants running with the land, shall be binding
upon the Grantor and shall inure to the benefit of the Grantee, provided the Grantee is not in
default of the terms hereof.
12. Default; Remedies. In the event either Party fails or refuses to perform any term,
covenant, or condition of this Easement, then the non-breaching Party shall give the other
Party written notice specifying the nature of the default, and the breaching Party shall have
thirty (30) days after receipt of such notice, within which to cure the specified default;
provided, however, if the nature of such default is such that the same cannot reasonably be
cured within such thirty (30) day period, the breaching Party shall not be deemed to be in
default if, within such period, it commences a cure and thereafter diligently prosecutes the
same to completion; provided further, however, that the maximum cure period for any
default hereunder shall not exceed one hundred twenty (120) days from the date of the
initial written notice of default. If the default is not cured within the applicable cure period,
then the non-breaching Party may, on written notice to the City, terminate this Agreement, and
may avail itself of any other remedies that may be available at law and in equity.
13. Governing Law. This Easement shall be governed by, construed and enforced in
accordance with the laws of the State of Florida. Venue in an action, suit or proceeding in
connection with this Easement shall be in a state court of competent jurisdiction in Miami-Dade
County, Florida. BY ENTERING INTO THIS AGREEMENT, CITY AND GRANTOR
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY
OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
14. Entire Agreement. This Easement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements,
understandings and arrangements, both oral and written, between the parties with respect thereto.
15. Notices. All notices and communications in writing required or permitted
hereunder may be delivered personally to the representatives of the Grantor and the Grantee
listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to
an address outside of the city of dispatch).
Until changed by notice in writing, all such notice and communications shall be
addressed as follows:
TO CITY: City of Miami Beach
Attn: City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
Tel: 305-673-7010
TO GRANTEE: Sunset Islands Property Owners, Inc.
4
Attn: _, President of HOA
Guard House, Drive
Miami Beach, Florida 33140
( )
Notices hereunder shall be effective if delivered by certified mail, return receipt
requested, personal delivery, courier service, evidenced by a delivery receipt or by an overnight
express delivery service addressed to the parties for whom it is intended at the place last
specified; and the place for giving of notice shall remain such until it shall have been changed by
written notice in compliance with the provisions of this paragraph.
16. No Joint Venture. It is not intended by this Easement to, and nothing contained in
this Easement shall, create any partnership, joint venture, limited liability company or other
arrangement between the Grantor and Grantee, other than that of owner and independent
contractor. No term or provision of this Easement is intended to be, or shall be, for the benefit of
any person not a party hereto, and no such other person shall have any right or cause of action
thereunder.
17. Termination. Either Party may terminate this Easement for its convenience,
upon 365 days advance written notice to the other Party.
18. Amendments. Subject to the other provisions hereof, this Easement may not be
amended or modified except by written agreement of the Grantor and the Grantee.
19. Counterpart Signatures. This Easement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[The remainder of this page is intentionally left blank.]
5
IN WITNESS WHEREOF, each of the Parties hereto has caused this Easement to be
executed and delivered as of the date first above written.
Witnesses: CITY OF MIAMI BEACH, FLORIDA
(GRANTOR):
f"11117-: - e' i Cca rj
�i. By:
��� Dan Gelber, Mayor
Print Na. e: mon a „,
Attest: . n\ "mu E.
•
4 A,.. c. 2), l# IY �f "��• s
Rafa- Granado, City Clerk $ 'k
$ * .INCORPORATED' •
40
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STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE) // .,p
The foregoiing instrument was acknowledged before me this 5 day of uu� -/ � ,
201t by 1)4n 6c16 err , who is the Y1Q or who
is either personally known to me or who has prodded as identification.
(NOTARY SEAL) del/Le
Signal re of Notary Public of Florida
II.Nf+1R0 oo210433
I EeTiItF&ApMiTL1DIZ
`�.... mmn. .. aeeue..r.
APPROVED AS TO - - ------
FORM & LANGUAGE
& FOR EXECUTION
APPROVED AS TO
FORM &LANGUAGE
City Attorney Date &FOR EXECUTION
Ciald art iI/b
jr City Attom: ° Da
AN6
Witnesses: SUNSET ISLANDS PROPERTY
&YeOWNERS, INC. (GRANTEE):
�yll�c-D
Print Name: 40n- J� S_ 142(3 An_ GL �till, file J1i By: i
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Print: 1111WVI , \gL
45
Print Name: QL I A I Oki I Its: -111Mnlin
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STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE)
ti5-
yp P Theforegoing/instrument was acknow dged before me this day of�,
203-Y by,Dert 4P who is the ft-e .ii �n t who
is either personally known 46 or who has produced as identification.
----
(NOTARY
(NOTARY SEAL) „,,----Th - ad �a -
Signature of Notary Public of Florida
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