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HomeMy WebLinkAboutTemp Baywalk Access EasementThis instrument prepared by or under the supervision of (and after recording should be returned to): Joel K. Goldman, Esq. Greenberg Traurig, P.A. 1221 Brickeil Avenue Miami, Florida 33131 Tax Folio No.02-4210-000-0041 (Space Reserved for Clerk of Court) TEMPORARY BAYWALK ACCESS EASEMENT THIS TEMPORARY BAYWALK ACCESS EASEMENT ("Temporary Access Easement") is made and entered into as of the ~ day of,_[d_.~, 2003, by and among EAST COASTLINE DEVELOPMENT, LTD., a Florida limited partnership' ("ECD"), and AZURE COAST DEVELOPMENT, LTD., a Florida limited partnership ("Azure") (collectively, "Granto¢'), and the MIAMI BEACH REDEVELOPMENT AUTHORITY, a Florida Redevelopment Authority created under and pursuant to Part Ill of Chapter 163, Florida Statutes ("Grantee"), the mailing address of which is 1700 Convention Center Drive, Miami Beach, Florida 33139. WlTNESSETH: WHEREAS, ECD is the owner of certain real property located in Miami Beach, Miami- Dade County, Florida more particularly described on Exhibit "A" attached hereto (the "Alaska Parcel"); and WHEREAS, Azure is the owner of that certain real property located in Miami Beach, Miami-Dade County, Florida more particularly described in Exhibit "B" attached hereto (the "Hinson Parcel"). The Alaska Parcel and the Hinson Parcels are sometimes collectively referred to herein as the "Alaska Bayfront Assemblage"; and WHEREAS, Grantor sought and received approval of the Planning Board of the City of Miami Beach (the "Board") for the use and utilization of certain parcels of land, including the Alaska Bayfront Assemblage, for temporary parking facilities, through approval of Board Order No. 1517, rendered on the 8th day of October, 2001 (the "Approval"); and WHEREAS, as a condition of the Approval, the Board required that the proposed temporary parking area be set back from the water's edge bulkhead of the Alaska Bayfront Assemblage, seventy-five feet (75') [except only for the portion of the Alaska Parcel where the existing boat slip is located, which shall be set back twenty-five feet (25')]; and WHEREAS, Grantor agreed to grant the City a temporary not, exclusive baywalk access easement over and upon the foregoing setback area, as more specifically described and shown on Exhibit "C" attached hereto (the "Temporary Easement Parcel"), solely for purposes of public access for and to allow the City to construct, operate and maintain a temporary baywalk a temporary baywalk upon the Temporary Easement Parcel, solely for the duration of the period of time that the Alaska Bayfront Assemblage is utilized for temporary parking purposes pursuant to the Approval. NOW, THEREFORE, in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: reference. The foregoing recitals are true and correct and are incorporated herein by this 2. Grantor hereby grants, conveys, bargains and sells to Grantee, or its Permitted Successor (as defined in Paragraph 10 hereof), for the use of the public generally and such persons as shall from time to time be designated by Grantee, a temporary, non-exclusive easement (subject to the provisions of Paragraph 3 below), solely for the purposes herein expressed, over and across the Temporary Easement Parcel, subject to the following terms, conditions and reservations. 3. The easement hereby granted shall be for the sole purposes of providing to the public and to Grantee, its invitees, agents, employees, guests, lessees and licensees, including, without limitation, Grantor, its officers, employees, agents and contractors, a temporary, nor~ exclusive way of passage, and access to, and reasonable use of, the Temporary Easement Parcel as a baywalk for (i) pedestrian use; (ii) non-vehicular, but not precluding bikes, non- motorized scooters, skateboards, etc., access to the contiguous marina property, and (iii) the use of emergency and law enforcement vehicles (for emergency use only), including security and service patrols. The grant of this Temporary Easement shall not entitle either the public or Grantee, its officers, employees, agents and contractors, to use the Temporary Easement Parcel for any other purpose whatsoever, including, without limitation, utility purposes (except for the installation, relocation, or maintenance of temporary utilities that may be reasonably necessary to serve the purposes of a safe and secure baywalk, as set forth in Paragraph 8 hereof), any use or utilization of the boat slip within the Temporary Easement Parcel, or the use of any of the bulkheads within the Temporary Easement Parcel. The duration of this Temporary Access Easement shall only be for such period of time as the Alaska Bayfront Assemblage is used for temporary parking purposes permitted by the Approval, unless otherwise agreed to by the parties. At such time as the Alaska Bayfront Assemblage is no longer utilized for temporary parking purposes as aforesaid, this Temporary Access Easement shall automatically expire and shall be of no further force or effect, unless otherwise extended by the parties mutual consent, which may be withheld by either party for any reason whatsoever. In such event, notwithstanding the foregoing automatic termination provisions, which are intended to be self- effectuating, the Grantee, upon request of the Grantor, agrees to promptly execute a termination of this Temporary Access Easement in recordable form acceptable to Grantor and to immediately deliver the same to Grantor. Notwithstanding anything to the contrary contained herein, upon the expiration or earlier termination of this Temporary Access Easement, upon Grantor's election, in Grantor's sole discretion, Grantee shall promptly restore the Temporary Easement Parcel to the condition of its existence as of the date hereof and prior to Grantee's construction and/or use and utilization thereof, ordinary wear and tear excepted. 4. The parties acknowledge and agree that the Temporary Easement Parcel is intended to be used and maintained in a first class safe and secure manner and otherwise consistent with the highest public facilities maintenance standards of the City of Miami Beach and as further set forth below. Grantee agrees to abide by the standards for the maintenance and security of the Temporary Easement Parcel, as set forth in Exhibit "D" hereof. The Grantee shall be responsible, at Grantee's sole cost and expense, for the permitting, construction, operation, security and maintenance of the Temporary Easement Parcel in such a manner and for any and all costs of permitting, construction, operation, security and maintenance. Any failure by the Grantee, or its Permitted Successor, to properly use and maintain the Temporary Easement Parcel in a first class, safe and secure manner and in substantial accordance with the Operating Standards shall be deemed a default hereunder. At least thirty (30) days prior to the commencement of construction of the temporary baywalk upon the Temporary Easement Parcel, Grantee shall submit proposed construction plans (including any temporary utilities) for said baywalk, and Grantor shall have fifteen (15) days to review and approve or reject said plans, in writing. Grantee's improvements shall incorporate, but not be limited to, adequate fencing on the waterside of the proposed baywalk. Grantee acknowledges and agrees that the construction plans for the temporary baywalk must take into account the temporary nature of this Temporary Access Easement and shall not include any vertical (excluding light poles, bollards, fencing, signage, landscaping) improvements which are permanent in nature and affixed to the Temporary Easement Parcel. Grantor agrees not to unreasonably withhold or delay its consent to said plans. In the event Grantor disapproves the proposed plans, Grantor shall provide Grantee with specific written reasons therefore. In the event the Grantor does not act upon said plans within said fifteen (15) day period, said plans shall be deemed approved by Grantor. The parties agree to use good faith efforts to mutually agree upon such plans. Grantor and Grantee acknowledge and agree that upon the expiration or earlier termination of this Temporary Access Easement, all improvements constructed upon the Temporary Easement Parcel shall, if requested by Grantor, be promptly removed by Grantee, at Grantee's sole cost and expense, failing which, Grantor shall have the dght to remove the same, in which event Grantee shall immediately reimburse Grantor for the costs incurred by Grantor in connection with such removal (including an administrative overhead fee not to exceed ten percent (10%) of such costs). Grantee further acknowledges and agrees that Grantee shall, at Grantee's sole cost and expense, complete construction of the temporary baywalk within the Temporary Easement Parcel in accordance with all applicable governmental laws, statutes, codes, rules, regulations and ordinances and without the imposition of any liens or encumbrances. Furthermore, Grantee shall not interfere with or disturb Grantor's use of the Alaska Bayfront Assemblage for temporary parking in connection with the construction of the temporary baywalk or other use of the Temporary Easement Parcel. 5. To the extent permitted by law including, without limitation the provisions of Section 768.28, Florida Statues, Grantee, or its Permitted Successor, shall be liable and responsible, for any costs, liabilities, claims or damages, including, without limitation, reasonable attorneys' fees and disbursements at the trial level and all levels of appeal, relating to death of or injury to persons, or loss of or damage to property including, but not limled to, any violation by the Grantee, its agents or employees of any environmental laws, statutes, rules, codes, regulations or ordinances, any presence, release or threat of release of hazardous materials, hazardous wastes, hazardous substances, solid waste or pollution, at, upon, under or within the Temporary Easement Parcel by Grantee, its agents or employees, the failure of Grantee, its agents or employees to perform any obligations or actions required to be taken under any environmental laws, statutes, rules, codes, regulations or ordinances, including, without limitation, the imposition by any governmental authority of any lien or so-called "super priority lien" upon the Temporary Easement Parcel, any clean-up costs, liability or personal injury or property damage or damage to the environment, and any fines, penalties, and punitive damages incurred by Grantor, its successors and/or assigns in title to the Temporary Easement Parcel, and resulting from, arising out of, or incurred in connection with the use of the Temporary Easement Parcel by the public generally or by Grantee, or its Permitted Successor_, and their respective invitees, agents, employees, guests, lessees or licensees, to the extent resulting from the acts or omissions of Grantee, or its Permitted Successor, and their respective invitees, agents, employees, guests, lessees, or licensees. In addition, Grantee or its Permitted Successor, shall defend any and all claims asserted against Grantor, its successors and/or 3 assigns, resulting from, arising out of, or incurred in connection with the use of the Easement Parcel by the public generally or by Grantee, or its Permitted Successor and their respective invitees, agents, employees, guests, lessees or licensees, but excluding any claim resulting from the intentional or negligent acts of the Grantor (and its successors and assigns), and Grantor's officers, employees, agents, licensees, invitees, lessees, and guests. In such event, Grantee shall be entitled to select counsel of Grantee's choice to defend the claim, including "in- house" municipal counsel, however, Grantor shall be permitted, at Grantor's cost and expense, to retain independent counsel to monitor the claim proceeding. 6. Grantee shall pay to Grantor during the term of this Temporary Access Easement the cost of the following insurance for Grantor with respect to the Temporary Easement Parcel: A. Comprehensive general and public liability insurance providing liability insurance against claims for personal injury, death or property damage, occurring on or about the Temporary Easement Parcel, for at least a combined single limit for bodily injury, death and property damage liability of Five Million and No/100 Dollars ($5,000,000) per occurrence. B. Any other insurance required by applicable law. All insurance provided by Grantor and paid for by the Grantee and provided for in this Paragraph 6 shall be effect under valid and enforceable policies issued by highly rated insurers of recognized responsibility which are licensed to do business in the State of Florida and shall name the City as an "additional insured" if possible, and to the extent permitted by applicable state law including, without limitation, Section 768.28, Florida Statues. All such companies shall be rated at least "A" as to management, and at least "Class X" as to financial strength on the latest edition of Best's Insurance Guide. Each insurance policy shall be marked "premium paid" or accompanied by other satisfactory evidence of payment of premiums. All insurance policies shall provide that no change, cancellation or termination shall be effective until at least thirty (30) days after written notice to the additional named insured. Prior to the effectiveness of this agreement and occupancy under the terms hereof, Grantee shall pay to Grantor, the initial premium for the first year of the above-noted insurance coverage and, thereafter, the Grantee shall pay to Grantor the annual required insurance payment premiums within thirty (30) days of the annual anniversary of this Easement. 7. Grantor reserves unto itself, its successors and assigns, the perpetual right and privilege of: A. Unrestricted access to, over, across and in the Temporary Easement Parcel for purposes consistent with the use of the Temporary Easement Parcel as contemplated in this Temporary Access Easement and provided such uses do not materially interfere with the continuous use of the Temporary Easement Parcel as permitted herein by Grantee, or its Permitted Successor and its invitees, agents, employees, guests, lessees and licensees; and B. Using and occupying, and granting to others the right to use and occupy: (i) Subject to the provisions of Paragraph 8 hereof, the subsurface of the Temporary Easement Parcel for any utility or drainage purpose or other use or purpose which does not materially interfere with the non-exclusive rights herein granted to Grantee, or its Permitted Successor and its authorized invitees, agents, employees, guests, lessees and licensees, including, without limitation, the right to construct, install, maintain and operate therein electrical, telephone, telegraph, telecommunication (including cable television), gas, gasoline, sewer, water, and drainage fixtures, related equipment and facilities and the foundation and footings of and/or anchors for subsurface improvements. In such instance Grantor shall be responsible for all operation, maintenance and clean-up costs associated with any utilities so installed; and (ii) The use and occupancy reserved herein shall include the dght to reconstruct, decorate or otherwise enhance the appearance of any landscaping and site improvements located on the Temporary Easement Parcel at any time and from time to time, at Grantor's, its successors' and assigns', cost and expense, provided such construction, decorations and enhancements are reasonably acceptable to Grantee and otherwise consistent with the purposes for the grant of this Temporary Access Easement. Grantor, its successors and assigns, shall, at its cost and expense, maintain, repair, restore and reconstruct any of the items it shall construct or install on or under the Temporary Easement Parcel pursuant to the provisions of Paragraphs 7 and 8, as well as repair, restore, and reconstruct any of the landscaping and other site improvements disrupted or damaged by Grantor's activities pursuant to this Paragraph 7 and 8; provided, however, that notwithstanding anything herein contained to the contrary, Paragraphs 7 and 8 shall not be construed or deemed to relieve Grantee, or its Permitted Successor, as applicable, of its obligations to restore, repair and maintain the Temporary Easement Parcel strictly in accordance with the provisions of this Temporary Access Easement for all work performed by Grantee only. Grantor, its successors and assigns, shall be liable and responsible, to the extent permitted by law, for any costs, liabilities, claims or damages, including, without limitation, reasonable attorneys' fees and disbursements at the trial level and all levels of appeal, relating to death of or injury to persons, or loss of or damage to property, incurred by Grantee, or its Permitted Successor, and resulting from, arising out of~ or incurred in connection with the use of the Temporary Easement Parcel by Grantor (and its successors and/or assigns_), and Grantor's invitees, lessees, agents, employees, guests or licensees, to the extent resulting from the intentional or negligent acts of Grantor, its officers, invitees, lessees, employees, agents, licensees or guests. In addition, Grantor shall defend any and all claims asserted against Grantee, or its Permitted Successor, resulting from, arising out of or incurred in connection with the use of the Temporary Easement Parcel by Grantor (and its successors and/or assigns)and its respective invitees, lessees, agents, employees, guests or licensees, to the extent resulting from the intentional or negligent acts of Grantor, its officers, invitees, lessees, employees, agents, licensees or guests. In such event, Grantor shall be entitled to select counsel of Grantor's choice including, without limitation, "Grantee's "in-house counsel", to defend the claim, however, Grantee shall be permitted, at Grantee's cost and expense, to retain independent counsel to monitor the claim proceeding. 8. The parties agree that in connection with each of their respective dghts to install and maintain utilities (temporary in nature with respect to the Grantee) in the subsurface of the Temporary Easement Parcel pursuant to this Temporary Access Easement, each party (i) shall notify the other of its intention to install, repair or otherwise maintain such utilities and in the case of the Grantee, to obtain Grantor's approval for said temporary utilities, pursuant to the provisions of Paragraph 4 hereof, (ii) shall cooperate fully with the other party and take such $ steps as may be necessary to insure that any such installation, maintenance or repair of said utilities will not interfere with the use or functioning of existing utilities, (iii) shall, to the extent feasible, integrate any proposed installation, maintenance or repair with any proposedwork of a similar nature by the other party, (iv) shall not unreasonably interfere with the use of the Temporary Easement Parcel by the other party as permitted under this Temporary Access Easement; (v) shall repair, restore, and reconstruct any of the landscaping or other site improvements. Grantee shall not permit any construction or other liens to be recorded against the Temporary Easement Parcel, the Alaska Bayfront Assemblage or any part thereof by reason of work, labor, services, or materials performed or supplied or claimed to have been performed or supplied to Grantee or anyone using the Temporary Easement Parcel or any part thereof through or under Grantee. If any third party records a construction or other lien purportedly against the Temporary Easement Parcel, Alaska Bayfront Assemblage or any part thereof for or on account of labor, services or materials provided to or at the request of Grantee, Grantee shall promptly transfer the lien to security as provided by Florida law or otherwise bond orcause the same to be discharged of record within thirty (30) days following Grantee's receipt of notice of the filing of such lien. Additionally, Grantee shall be solely responsible for disposal of any ensuing litigation in relation to such a lien in a reasonably appropriate manner and shall keep the Grantor apprised of the status of the resolution of any such claim of lien or litigation, if any. 9. This Temporary Access Easement shall inure to the benefit of and be binding upon Grantor, and its successors and assigns, except that Grantor or such successor or assignee in title to the Temporary Easement Parcel, as the case may be, shall be released of all future obligations hereunder upon conveyance of its interest in the property encumbered hereby; provided, however, that any such transferee of Grantor or its successor or assignee, as the case may be, shall be bound by all such terms and conditions of this Temporary Access Easement. For purposes of this Temporary Access Easement, Grantor shall only be permitted to assign Grantor's rights hereunder to (and Grantor's successors shall only include) successor developer(s) or mortgage lenders of the Alaska Bayfront Assemblage and/or association(s) designated with the responsibility of maintenance of common areas in connection with the development or operation of the Alaska Bayfront Assemblage. Grantor's successors and/or assigns shall not include individual unit owners or individual renters unless such unit owners or renters are successor developers and/or associations as described above. An assignment of Grantor's rights hereunder shall only be effective if a specific written assignment (including an acceptance by the successor developer and/or association) is recorded in the Public Records of Miami-Dade County, Florida. Grantor's successors and/or assigns shall maintain reasonable insurance coverage, to the extent obtainable, for the liabilities of Grantor hereunder. This Temporary Access Easement shall be binding upon Grantee, its Permitted Successor, andinure to the benefit of Grantee and its Permitted Successor. Grantee shall not be permitted to assign, transfer or convey all or any part of its interests in the Temporary Easement Parcel or under this Temporary Access Easement, except to a successor municipal corporation, such successor municipal corporation being herein referred to as a "Permitted Successor"; provided, however, that nothing herein shall be deemed a limitation on Grantee's or a Permitted Successor's right to permit its invitees, agents, employees, guests, lessees and licensees and the public to use the Temporary Easement Parcel in accordance with the terms of this Temporary Access Easement. 10. The easement granted herein is subject to all matters listed on Exhibit "E" attached hereto and rights, if any, of the United States of America and the State of Florida in and to the Temporary Easement Parcel, or any portion thereof. 11. In the event of a default hereunder, the non-defaulting party shall be entitled to seek all remedies available at law or in equity, except for rescission, revocation or termination of this Temporary Access Easement. 12. In the event of litigation arising out of the terms of this Temporary Access Easement or the use of the Temporary Easement Parcel, the prevailing party will be entitled to reasonable attorneys' fees and costs at the trial level and all levels of appeal. 13. Upon pdor written request of either party, the other party hereto shall furnish the requesting party an estoppel certificate reasonably satisfactory to the requesting party. 14. Grantor and Grantee hereby agree to cooperate in good faith with each other in connection with the permitting and construction of the permitted improvements within the Temporary Easement Parcel, provided such construction does not interfere with the temporary parking upon the Alaska Bayfront Assemblage. 15. The Temporary Access Easement as set forth herein is intended to be the final agreed upon temporary baywalk easement satisfying the requirements for same as set forth by the Board in the Approval. 16. Grantee, on behalf of itself and its successors and beneficiaries of this Access Easement hereby acknowledge and agree that the grant hereof, and Grantee's use of said Temporary Access Easement does not constitute an admission by Grantor of any obligation to maintain or continue such an easement for any longer than the term specifically set forth herein. ]?. All of the parties have participated fully in the negotiation of this Temporary Access Easement, and accordingly, this Temporary Access Easement shall not be more strictly construed against any one of the parties hereto. ]$. Any and all notices required or desired to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand or three (3) business days after deposit in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to the address set forth immediately beneath each party's signature below (or to such other address as either party shall hereafter specify to the other in writing). Any party may change the address for notice purposes by giving written notice thereof to the other parties, which shall be effective upon receipt by each of the other parties. ]8. In the event any term or provision of this Temporary Access Easement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Temporary Access Easement shall be construed in full force and effect. 19. All of the Exhibits attached to this Temporary Access Easement are incorporated in, and made a part of, this Temporary Access Easement. 20. This Temporary Access Easement constitutes the entire agreement between the parties with respect to the subject matter hereof and supercedes all prior agreements, understandings and arrangements, both oral and written, between the parties with respect thereof to the extent in conflict herewith. IN WITNESS WHEREOF, Grantor and Grantee have caused this Temporary Access Easement to be executed in its name by its undersigned duly authorized officers and its corporate seal to be hereunto affixed, as of the ~ day o~ 2003. Signed sealed and delivered in the presence of: EAST COASTLINE DEVELOPMENT, LTD., a Florida limited partnership Name: By: East Coastline, Inc., a Flodda Title: lgr-~'~l ~ ~' ' [C-OJ40~:~TE SEAL] Address:500 South Pointe Ddve, Suite 220 Miami Beach, Flodda 33139 AZURE COAST DEVELOPMENT, LTD., a Florida limited partnership By: Azure Coast, Inc., a Flodda cqrp°r~j°n3G~ n~' By: ' Name: Title: [COR~TE S~L] Address: 500 South Pointe Drive, Suite 220 Miami Beach, Florida 33139 STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) · The foregoing instrument was acknow~ledged,befo, re me this')~dayof/q '~s2tl~nOe3~ by ~/"~r"ffA'/'.t/7~/( ~ , as ~<[[(IJ)/L~ of Inc., a-FI6~/id~ corporation, General Partn(.[r'of East Coastline Development, Ltd., a Florida limited partnership, on behalf of the corporation and limited partnership. He/she personally appeared before me, is personally known to me or produced~l/~/I/If/^l/llll! Jt/~g // [NOTARY SEAL] Notary: ~b~/vyLx../~ vt,, I/v Pdnt Name: (_~J/~q~. (~ IJ ..... ~N~c~L~EJ Notary Public, State of Florida My Commission Expire§: ~,(~/[ ~'~ I NOTARY FUBUC STATE OF FLORIDAJ Commission Number: ("j' ~"~0~1'~' J , CO,/[MiSSiON NO. CC905179 - · L M t COM?Z~%,~ON EXP, JAN, 25,2004 STATE OF FLORIDA ) ) SS: COUNTY Of MIAMI-DADE ) / ~ . ,'l'he f_.oregoing instrument was ackn.qwledge,d'before me this ! day of~2003, by I~.J.t~d~'~/s~-~--.~-- , as bl/P._~r~2/J./l~'''2 of Azure-Coast, I~lorida corpora'tion,(~eneral Partner of Azure Co~s} DeVelopment, Ltd., a Florida limited partnership, on behalf of the corporation and limited partnership. He/she personally appeared before me, is personally known to me or produced as identification. /~LJ,,.. ~'),/]~... , . [NOTARY SEAL] Notary: Print Name: ~_~.-~/~.t'~ -~_~14)~qr'~-~ Notary Public,"State of Florida APPROVED AS TO FORM & LANGUAGE My Commission Expires: Commission Number i~.. ~l~l:tE DEVELOPM ENT ~p~' ba~/~'d Dermer Title: Cha~L~ Attest: Name: Robert Percher Title: City Clerk Address: 1700 Convention Center Drive & FOR ~C,~TION Miami Beach, Florida 33139 ~[al~p. ey("~- I~at~ COUNTY OF MIAMI-DADE'~"~ --' The foregoing instrument was acknowledged before me this q day of ~..~_, 2003, by David Dermer, as Chairman of the City of Miami Beach Redevelopm--ent Agency, od behalf of th¥~agency He personallyasappearedidentification.bef°re me, is pe~monally known to me~ or produced [NOTARY SEAL] OFFICIALNOTARySEAL LILLIAN I~EAUCHAMP NOTARY PUltLIC b'TATE OF FLORIDA COMMISSION NO. DD109289 MY COMMISSION EXP. APR. 29,2006 Notary: ~ ~ Print Name: ////,~,3/ Notary Publi~, '~t~t~ ~)f Florida My Commission Expires:/~// Commission Number: CONSENT AND SUBORDINATION The undersigned, CITY NATIONAL BANK OF FLORIDA, a national banking corporation, as the holder of (i) that certain Mortgage recorded in Official Records Book 19788, Page 2375 of the Public Records of Miami-Dade County, Florida, as amended and/or modified from time to time, and (ii) that certain Mortgage recorded in Official Records Book 21134, Page 1822 of the Public Records of Miami-Dade County, Florida, as amended and/or modified from time to time, which encumber the Alaska Bayfront Assemblage, hereby consents to and subordinates the lien and operation of said mortgages to the foregoing Temporary Baywalk Access Easement. Print Name: ?,~-/¥,c/,~ a- cu,~c-,~cz CITY NATIONAL BANK OF FLORIDA, a national banking corporation Title: Senior Vice President My commission expires: STATE FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this ~7"¢'/day of April, 2003, by Barry R. Stempel, as Senior Vice President of CITY NATIONAL BANK OF FLORIDA, a national banking corporation, on behalf of said banking corporation corporation. He is ej~.~onall.v knownto me or is personally known to me or presented as identification. Name: Notary Public, State of Florida Commission No. EXHIBIT "A" Alaska Parcel A parcel of land and accreted land located in Section 10, Township 54 South, Range 42 East, Miami-Dade County, Florida, and being more particularly described as follows: . For a Point of Beginning commence at a I O-inch-square concrete monument located on the northerly boundary of the U.S. Army ;Corps of Engineers Reservation, being the westernmost comer of Lot 6, Block 4, of South Beach Park Subdivision as shown in Plat Book 6, Page 77, of the Public Records ~of Miami-Dade County; said monument designated "C" having grid coordinates of X-784,440.39 and Y-521,912.47. Said monument also lies approximately South 24 degrees 27'26" West a distance of 592.30 feet South of and North 65 degrees 36'16" East a distance of 554.97 feet West of the northeast comer of the northwest 1/4 of Section 10, Township 54 South, Range 42 East. From said Point of Beginning nm thence South 24 degrees 25'50" West a distance of 420.43 feet, more or less, to the Mean High Water (M.H.W.) line of the northerly shoreline of the "Government Cut" for the entrance channel of the Miami Harbor; thence North 65 degrees 35'19" West along said M.H.W. line a distance of 261.59 feet to a point on a bulkhead; thence North 31 degrees 08'28" West along said bulkhead a distance of 242.83 feet to U.S. Army Corps of Engineers Monument "Virgil" having a grid coordinate of X-783,902.72 and Y-521,845.63; thence North 57 degrees 41'41" East a distance of 226.20 feet to Monument "West" having a grid coordinate of X-784,093.91 and Y-521,966.52; thence North 87 degrees 38'37" East a distance of 208.58 feet to Monument "G", having a grid coordinate of X-784,302.32 and Y-521,975.14; thence South 65 degrees 35'12" East a distance of 151.63 feet to Monument "C' and the Point of Beginning. 10 EXHIBIT "B" Hinson Parcel BLOCK 8, SOUTH BEACH PARK SUBDIVISION, recorded in Plat Book 6, at Page 77, of the Public Records of Miami-Dade County, Florida,.less and excepting therefrom the following two dedications: A 50.00 foot dedication in BLOCK 8, SOUTH BEACH PARK SUBDIVISION, recorded in Plat Book 6, at Page 77, of the Public Records of Miami-Dade County, Florida. Said 50.00 foot dedication being described as follows: Bounded on the North by the Northerly line of said BLOCK 8; Bounded on the South by the Southerly line of said BLOCK 8; said Southerly line also being the Northerly line of the Government Reservation shown hereon; Bounded on the East by a line parallel to and 50.00 feet distant Easterly of, as measured at 90-degrees to the Westerly line, of said BLOCK 8; Bounded on the West by the Westerly line of the above-referenced BLOCK 8, said Westerly line also being the Easterly line of Biscayne Bay. A 40.00 foot dedication in BLOCK 8, SOUTH BEACH PARK SUBDIVISION, recorded in Plat Book 6, at Page 77, of the Public Records of Miami-Dade County, Florida. Said 40.00 foot dedication being described as follows: Bounded on the-North by the Northerly line of the above-referenced BLOCK 8; Bounded on the South by the Southerly line of the above-referenced BLOCK 8~ said Southerly line also being the Northerly line of the Government Reservation shown hereon; Bounded on the east by the Westerly line of Washington Avenue, said Westerly line also being the Easterly line of BLOCK 8; Bounded on the West' by a line parallel to and 40.00 feet distant Westerly of, as measured at 90-degrees to the Westerly line, of the above- referenced Washington Avenue. EXHIBIT "C" Temporary Easement Parcel LEGAL DESCRIPTION: Temporary Baywalk Easement A temporary boywolk easement across o portion of Section 10, Township 54 South, Range 42 East, Miami-Dodo County, Florldo, being more porUculorly described os follows: Commence at the Southwest corner of Lot 3, Block 8. South Beach Park, occordlng to the plot thereof, os recorded in Plot Book 6 at Page 77 of the Public Records of Miami-Dodo County, Florida, the following eight (8) courses being along the Approximate Mean High Water Line,(1978 survey llne) os shown on ForUn, Leovy, Skiles sketch No, 2001D-061; 1) thenceS 32'15'24" E for 132.65 feet to the Point of Beginning of the herelnofter descrlbed temporary boywolk easement; 2) thence S 52'13'2~" E for 50.32 feet; 3) thence N 56'33'59' E for 99,85 feet;4) thence S 53'25'17" E for 60.31 feet; 5) thence S 56'07'57" W for 101,13 feet; 6) thence S 52'13'24" E for 151.80 feet; thence7) S 65'55'19" E for 261.07 feet; 8) thence N 24'25'50" E for 75,00 feet; thenceN 65'35'19" W for 238.62 feet; thence N 52'13'24" W for 106.47 feet; thence N 56'07'57" E for 51.62 feet; thence N 53'25'17" W for 112.99 feet; thence S 57'41'41" W along the exterior boundary line os shown on sold ForUn, Leovy, Skiles sketch No. 2001D-061 for 124.24 feet to the Point of Beginning. SURVEYOR'S NOTES: - This site lles in Section 10, Township 54 South, Range 42 East, City of Miami Beach, Miami-Dada County, Florida. - Bearings hereon are referred to on assumed value of N 87'37'54" E for the South right of way llne of Biscayne Street. - Lands shown hereon were not abstracted for easements and/or rlghts-of-woy of records. - This is not o "Land Survey" but only a grophlc depiction of the description shown hereon. - Dimensions shown hereon are based on ForUno Leovy, Skiles, sketch ~2001D-061. SURVEYOR'S CERTIFICATION: I hereby certify that this "Sketch of DescHpUon" was made under my responsible charge on August 13, 2002, and meets the Minimum Technical Standards as set forth by the Florldo Board of Professional Surveyors and Moppers in Chapter 61(;17-6, Florida AdmlnJstrative Code, pursuant to SecUon 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surveyor and Mappe~' FORTIN, LEA/V, j, S~LES, INC., LB3653 DonZI C. Fort~n, For The Fir'm~; Surveyor and Mopper, LS2855 State of Floddo, rDrawn By MAP Cad. No. 021097 Re~ Dw&. 2001D-061 Plotted: 8/13/02 1:33p LEGAL DESCRIPTION, NOTES, AND CERTIFICATION Fourth, L Avv, CONSULTING ENGINEERS, SURVEYORS AND YAPPERS 180 Northeast 168th. Street / North Miami Beach, Florida. 33162 Ph. 305-653-4493 / Fax $05-851-7152 12 Da te 8/13/02 Scale NOT TO SCALE Job. No. 021097 Dwg. No. 1002A-058 Sheet 1 of 3 EXHIBIT "D" Maintenance and Operating Standards 1. Maintenance Standards. Grantee shall, at its own cost and expense, take good care of, and keep and maintain, the Temporary Easement Parcel in good and safe order and condition, and shall perform all routine maintenance necessary to keep the Temporary Easement Parcel in good and safe order and condition. 1.1 Grantee shall not commit, and shall use all diligent efforts to prevent waste, damage or injury to the Temporary Easement Parcel. 1.2. All repairs made by Grantee shall be made promptly and substantially equal in quality and class to the original quality of the improvements being repaired and shall be made in compliance with the Temporary Access Easement. 1.3 Grantee shall keep clean and free from dirt, mud, rubbish, obstructions and physical encumbrances all areas of the Temporary Easement Parcel. 1.4 The duty to perform all routine maintenance underthis Section shall also include maintenance of any security control equipment and systems used in connection with the Temporary Access Easement. The Grantee shall also be responsible for maintenance and upkeep of the adjoining baywalk landscaping. 2. Baywalk. Grantee shall maintain the Temporary Easement Parcel in accordance with the standards for the Marina as set forth in the Marina Lease. 3. Security. Grantee, at its sole cost and expense, shall be responsible for providing security or patrol services for the Temporary Easement Parcel. The Grantee may provide such security itself, or may subcontract such security. During the period of construction, the Grantee's general contractor shall secure the Temporary Easement Parcel. The City of Miami Beach (on behalf of Grantee) shall provide the usual and customary police and fire services to the Temporary Easement Parcel, in the same manner and to the same extent that it provides such services to all property and persons in the City of Miami Beach. The Police Department shall be notified to include the area for regular patrol and to exercise its authority, if necessary, on the Temporary Easement Parcel. 3.1 If, due to permitting requirements, the existing bollards at the street end of Washington Avenue are removed, and a new 15 foot aluminum gate is placed at the end of the Temporary Easement Parcel, said gate shall be opened at sunrise and locked at sunset by Grantee or its subcontracted Security. 3.2 For an initial 60-day period following the completion of construction of the Baywalk, Grantee shall provide daily secudty for a total of eight hours per day in two shifts of four hours each. The sunrise shift shall begin two hours before sunrise, and the sunset shift shall begin two hours before sunset. Grantee will post signage prohibiting vehicles from entering the Temporary Easement Parcel while the gate is opened. 3.3 Grantor and Grantee agree to review this security schedule after a 60-day trial period, and revise it by mutual agreement. If it is determined that signage is not sufficient to prevent vehicles from entering the Temporary Easement Parcel, then Grantee shall provide a method of preventing vehicles from entering the Temporary Easement Parcel while the gate remains unlocked. Notwithstanding, the Fire Department and its vehicles shall have access to the Temporary Easement Parcel during emergencies. 4. Signs. follows: 4.1 All signs on the Temporary Easement Parcel shall be in conformanceas The Grantee shall be permitted to display reasonable signage with its name and/or corporate logo identifying it as the operator of the Temporary Easement Parcel, and all such signs shall be in conformance with all applicable building, zoning and other applicable government regulations. Additionally, the Grantee shall post signs on the Temporary Easement Parcel stating the following: a) No Fishing, Swimming, Diving, Loitering b) No Docking or Launching c) No Trespassing 4.2 Except as provided in Section 4.1, the Grantor shall not erect or display, or permit to be erected or displayed any exterior sign, poster, billboard or advertising matter or structure of any kind on the Temporary Easement Parcel without obtaining the prior written consent of the Grantee and for the City of Miami Beach. ]4 EXHIBIT "E" Permitted Exceptions Encroachments, overlaps, boundary line disputes or other matters which would be disclosed by an accurate survey of the Real Property. Any claim that any portion of the Temporary Easement Parcel is sovereign lands of the State of Florida, including submerged, filled or artificially exposed lands and lands accreted to such lands. Taxes for the year 2003 and subsequent years. Metropolitan Dade County, Flodda, Bulkhead Line Plat, recorded in Plat Book 4, at Page 4. Development Agreement between South Pointe Development Company and the City of Miami Beach, Florida, dated October 9, 1984, a Memorandum of Development Agreement recorded in Official Records Book 12338, Page 591. Reservations in favor of the United States of America as to a Perpetual Easement over the Southerly 50 feet of the captioned land set out in Quit Claim Deed recorded in Official Records Book 12878, Page 697. Order by the Board of Adjustment of the City of Miami Beach, Florida recorded in Official Records Book 12684, Page 630. Easement(s) granted to BellSouth Telecommunications, Inc., d/b/a Southern Bell Telephone and Telegraph Company as referenced in Certificate recorded in Official Records Book 16353, Page 1279, of the Public Records of Miami-Dade County, Florida. Terms and provisions of the Portofino Holdings Section 380.032(3) Agreement with The Department of Community Affairs recorded in Official Records Book 16788, Page 3089. Terms, covenants, conditions and other matters contained in the Agreement between the City of Miami Beach, Florida, the Miami Beach Redevelopment Agency and the "Portofino Entities", recorded in Official Records Book 16987, Page 1197, as affected by Termination Agreement recorded in Official Records Book 18626, Page 4372 of the Public Records of Miami-Dade County, Florida. Reservations of public rights-of-way in favor of the City of Miami Beach, Florida, as contained in Special Warranty Deed recorded in Official Records Book 17225, Page 3818. Preliminary Development Agreement for Portoflno DRI between Yacht Club at Portofino, Ltd., West Side Partners, Ltd., Azure Coast Development, Ltd., East Coastline Development, Ltd., Sandpoint Financial, Ltd., and The State of Florida, Department of Community Affairs, filed July 22, 1996, in Official Records Book 17283, at Page 1933. Development Order for the Alternative Portofino DRI as set out in Notice of Adoption of Development Order recorded in Official Records Book 18541, Page 3641; as amended by Supplemental Declaration recorded in Official Records Book 19699, Page 1480 and rerecorded in Official Records Book 19954, at Page 4498. Access and Utility License and Removal Agreement recorded in Official Records Book 18626, Page 4454. Washington Avenue Extension Easement Dedication Agreement between Azure Coast Development, Ltd., Sun & Fun, Inc., Beachwalk Development Corporation, East Coastline Development, Ltd., and the City of Miami Beach, Florida recorded in Official Records Book 18626, Page 4475. Allocation Agreement Regarding Alternative Portofino DRI Development Order recorded in Official Records Book 18792, Page 1530, as modified by that certain Modification of Allocation Agreement Regarding Alternative Portofino DRI Development Order dated as of June 4, 2001 recorded in Official Records Book 19699, at Page 1422. As to any portion of the Temporary Easement Parcel which is (a) submerged land or is (b) artificially filled in land, artificially exposed land, or any land accreted thereto, in what was formerly navigable waters, the right of the United States Government arising by reason of the United States Government's control over navigable waters in the interest of navigation and commerce. Parking Covenant by and among the "Murano Entities" and the "Portofino Entities" recorded in Official Records Book 19699, Page 1456 and rerecorded in Official Records Book 19954, at Page 4474, as amended by Amendment to Parking Covenant recorded in Official Records Book 19954, at Page 4646, as supplemented and amended by that certain Supplemental Agreement dated October 12, 2001 recorded in Official Records Book 19954, at Page 4518. Revocable License Agreement dated October 12, 2001 by and among Sun & Fun, Inc., Beachwalk Development Corporation, Azure Coast Development, Ltd., the City of Miami Beach and the Miami Beach Redevelopment Agency and any sublicenses thereunder. Terms, covenants, conditions, restrictions and easements created by and set forth in the Declaration of Restrictive Covenants in Lieu of Unity of Title recorded October 23, 2001, in Official Records Book 19974, Page 174. Terms, covenants, restrictions and conditions set forth in Order by the Planning Board of the City of Miami Beach, Florida, recorded in Official Records Book 20043, Page 1830. Mortgage and Security Agreement dated July 13, 2001, recorded in Official Records Book 19788, Page 2375. Second Mortgage and Security Agreement recorded March 31, 2003 in Official Records Book 21134, Page 1822.