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Easement Agreement with MAYIM-VIEW CONDOMINIUM CORP. LU t 1- -'1 7�i y 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 A portion of Folio No.: 02-3226-005-0001 SPACE ABOVE THIS LINE FOR PROCESSING DATA Easement Agreement This Easement Agreement is made this Z 2clay of O iia rl , 2019, by and between the City of Miami Beach, a Florida municipal corporation, whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139 (the "City") and MAYIM-VIEW CONDOMINIUM CORP., a Florida not for profit corporation, as successor in interest to WATERVIEW CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation, whose address is 3605 Indian Creek Drive, Miami Beach, FL 33140 (the "Company") (the City or Company may be referred to herein individually as a "party" or collectively as "parties"); WHEREAS, the City owns that land, situate, lying and.being in Miami-Dade County, Florida ("City's Property") legally described as: A strip of land lying West of Indian Creek Drive between the North line of Lot 21 and the South line of Lot 20 extended to Indian Creek, in Block 26, Ocean Front Property of the Miami Beach Improvement Company, according to the map or plat thereof as recorded in Plat Book 5, Page 7 of the Public Records of Miami- Dade County, Florida WHEREAS, Company is the owner of that land, situate, lying and being in Miami-Dade County, Florida ("Company's Property") legally described as: Lots 20 and 21, Block 26, Ocean Front Property of the Miami Beach Improvement Company, according to the map or plat thereof as recorded in Plat Book 5, Page 7 of the Public Records of Miami-Dade County, Florida. [Waterview Condominium Apartments, a Condominium, according to the Declaration of Condominium Recorded in O.R. Book 9250, Page 1111, and all exhibits and amendments thereto, of the Public Records of Miami-Dade County, Florida] WHEREAS, in connection with the conveyance from Company to the City of City's Property, the City agreed to grant a contingent, perpetual, non-exclusive easement for ingress and egress upon, over and across the City's Property, in connection with any future development of Marine Related Uses (as defined in Section 3), which uses are anticipated to be 1 developed adjacent to or near the seawall adjacent to the City's Property, specifically for the. benefit of Company's Property; WHEREAS, the City has the authority to grant the contingent, perpetual, non-exclusive easement granted herein pursuant to City of Miami Beach Resolution Number 2017-29749; and WHEREAS, the City Manager as referenced in this Easement 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 Easement Agreement, except where such authority has been expressly delegated herein to the City Commission. NOW THEREFORE, in consideration 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 Easement Agreement. 2. Grant of Easement. The City does hereby grant to Company, its successors and assigns, a contingent, perpetual, non-exclusive easement for ingress and egress upon over, and across the City's Property, including over and across any seawall and/or bulkhead, for the benefit of the Company's Property, as may be required under applicable laws and any governmental authority (including the Board of Trustees of the Internal Improvement Fund of the State of Florida) having jurisdiction over the City's •Property or the sovereign lands located adjacent thereto, to construct, operate and maintain Marine Improvements (as defined in Section 4) in connection with Marine Related Uses, and subject to the terms and conditions set forth herein. The easement rights created herein shall be subject to and contingent upon the City's approval of a Marine Improvement. Company shall pay any assessments of any kind levied or assessed upon the City's Property (including ad valorem taxes) by reason of this Easement Agreement including, without limitation, the Marine Improvements constructed, operated or maintained by Company and/or the Marine Related Uses operated by Company. 3. Marine Related Uses. As referred to herein, Marine Related Uses shall include water transportation stops, wet dockage for pleasure craft, kiosks, walkways and decks, the operation of watercraft rental, and other similar improvements and activities associated with the use of the waterway adjacent to the City's Property known as Indian Creek. 4. Marine Improvements. Company will have the right to construct, operate, and maintain, at its sole cost and expense, improvements in connection with any Marine Related Uses (the "Marine Improvements"). All Marine Improvements, including any plans and specifications (the "Approved Plans") for the work related thereto, shall require the City Manager's prior written consent, which consent shall not be unreasonably withheld; provided that: (1) Company is in good standing under the terms of this Easement Agreement (including payment of any invoices issued pursuant to Section 6 herein); and (2) the proposed Marine Improvements: (i) do not interfere with the use of the City's Property for a public purpose; (ii) do not pose a public health, safety or welfare risk; or 2 (iii) do not pose a risk of damage to the improvements on the City's Property, which City improvements may include, but are not limited to, the seawall/retaining wall or utilities. 5. Governmental Approvals. Notwithstanding the City's approval of any Marine Improvements, in its proprietary capacity, Company shall secure and comply with all governmental permits and approvals (the "Permits") which may be required in connection with the installation of the approved Marine Improvements including, without limitation, all applicable regulations of the Federal, State, County, City of Miami Beach Code of Ordinances, and any other regulation governing the Marine Related Uses (collectively, "Laws"). The City shall not unreasonably withhold any approval that may be required by Federal, State or County agencies or similar third parties for the installation of the approved Marine Improvements. Company shall install the approved Marine Improvements in accordance with the Approved Plans and Permits. Following completion of the Marine Improvements, Company, at its sole cost and expense, shall have the sole responsibility for maintaining, repairing or replacing the Marine Improvements in accordance with the Permits and applicable Laws, and shall be responsible for reimbursing the City for any costs associated with the maintenance, repair or replacement of the seawall or bulkhead. Company shall provide the same level of maintenance for the Easement Area and Marine Improvements contained thereon in the same manner as the City provides for similar areas and improvements. At minimum, the approved Marine Improvements shall be maintained and operated in a safe, clean and orderly manner. 6. Substitute Performance. Should Company fail to maintain the Easement Area or the Marine Improvements contained thereon, or otherwise comply with any of the terms of this Easement Agreement, then, upon receipt of thirty (30) days written notice from the City, and Company's failure to remedy the condition to the City Manager's satisfaction, the City may, but without an obligation to do so, undertake Company's obligations hereunder. Company shall reimburse the City for said expense within thirty (30) days from presentment of the invoice. Any unpaid invoices shall accrue interest at the rate of one percent (1%) per month until paid. 6. Easement Area. Subject to the limitations set forth in Section 4, Company shall have the right to access any portion of the City's Property which may be reasonably necessary to grant Company access to the Marine Improvements or in connection with the operation of the Marine Related Uses. Upon the City approving the Marine Improvements, the parties shall execute an amendment to this Easement Agreement, attaching a sketch of the Marine Improvements and the legal description of the easement area ("Easement Area"), describing the location of the Marine Improvements. 7. Access. Company's right to access the City's Property under this Easement Agreement shall be subject to and contingent upon the City's approval of a Marine Improvement in accordance with Section 4. The City shall not withhold or obstruct Company's access to the Easement Area through the installation of a fence or other similar means; except as may be necessary in connection with any repairs or improvements to the City's Property, such as the installation of a new seawall/retaining wall, or as may be necessary for the health, safety, or welfare of the general public. 3 8. Amendment. This Easement Agreement may only be modified, amended, or released, by a written instrument executed by both parties hereto or their successors or assigns, and providing that same has been approved by the City Commission. 9. Inspection. It is understood and agreed that any City official has the right to enter and investigate the use of the Property, to verify compliance with the conditions of this Easement Agreement or any applicable Laws. 10. Indemnification. Company, its employees, agents, servants, partners, principals or subcontractors (collectively, "Indemnifying Parties") shall indemnify and hold harmless the City, its officers, employees, agents and instrumentalities (collectively, "Indemnified Parties") from any and all liability, losses or damages, including the costs of any suits, attorney's fees and other expenses in connection therewith, including trial and appeals therefrom, which the Indemnified Parties may incur as a result of claims, demands, suits, causes of action, or proceedings of any kind or nature arising out of, relating to, or resulting from the negligent or wrongful act or omission of the Indemnifying Parties, the use of the Easement Area, the construction operation or maintenance of Marine Improvements, or the operation of Marine Related Uses. 11. Insurance. a. Construction Insurance. In connection with the approval of any Marine Improvements by the City, Company shall purchase insurance, as may be requested by the City Manager, based upon insurance coverages customary for the construction of the approved Marine Improvements, which may include, without limitation, Builder's Risk insurance; Payment and Performance Bond for the value of the construction of the Marine Improvements and Commercial General Liability insurance for Company and any contractor, reflecting the City as an additional insured (collectively "Construction Insurance"). b. Upon completion of the initial approved Marine Improvements, Company shall secure and thereafter maintain, at all times, insurance covering the use of the easements, the Easement Area and all completed Marine Improvements, as may be requested by the City Manager, based upon insurance coverages customary for the completed Marine Improvements, but in any event, Company shall maintain the following minimum insurance requirements: 1. Commercial General Liability: $1,000,000 per occurrence; $2,000,000 in the aggregate. 2. Property: Full replacement value for any completed Marine Improvements within the Easement Area. Such insurance policies shall name the City as an additional insured and loss payee thereunder; shall be written by insurance companies licensed to do business in Florida and with general policyholder rating of no less than A- and a financial rating of at least VII; and shall provide for waiver of subrogation. Company shall provide the City with a certificate of insurance evidencing said coverages. Company shall provide the City with written notice of any cancellation of coverage within two (2) days from receipt of any notification of cancellation to: 4 The City of Miami Beach Attention of Risk Manager 1700 Convention Center Drive Miami Beach, Florida 33139 The City reserves the right to modify the insurance requirements, in the City Manager's reasonable discretion, based upon any change in the type or number of Marine Improvements constructed or type of Marine Related Uses. 12. Notices. Any notices required or permitted to be given under this Easement 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 the City 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 If to Grantee at: Lawrence Frisch, President Mayim-View Condominium Corp. 3605 Indian Creek Drive, #403 Miami Beach, Florida 33140 With a copy to: Charles Z. Kalchman, Esq. 17071 W. Dixie Highway North Miami Beach, Florida 33160 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 Easement Agreement. 13. Remedies. Either party may bring an action, at law or in equity, to enforce the terms and conditions of this Easement Agreement against any party or person violating or attempting to violate any provision of this Easement Agreement, either to restrain violations or to recover damages. 14. Governing Law. This Easement Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Easement Agreement shall be Miami Dade County, Florida. BY ENTERING INTO THIS EASEMENT AGREEMENT, COMPANY AND THE CITY EXPRESSLY 5 WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF. ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS EASEMENT AGREEMENT. 15. Entire Agreement. This Easement 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. 16. City Representations. City covenants, warrants and represents (i) that City is the fee simple owner of the City's Property and has the right, title and capacity to grant the contingent perpetual easements granted herein, and (ii) there are no lienholders on the City's Property. 17. 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 Easement Agreement are appurtenant to the City's Property. The provisions hereof shall run with the land, shall be binding on the parties hereto, their successors and assigns, and shall inure to the benefit of Company's Property. [Signature Pages Follow] 6 Signed, witnessed, executed and acknowledged this ?i(�day of SF iAr/jt7._., 2019. Signed, sealed and delivered in the presence of: MAYIM-VIEW CONDOMINIUM CORP., a Florida not for profit corporation, as successor in interest to WATERVIEW CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation Witnesses: By: cry LV 04-fr � Lawrence ch, President Print ame: _ ---7 #4-14C-AfL L t s L e.1f atif .J Print Name: • STATE OF FLORIDA ) ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this 2-6..�ay of St afh X2019 Lawrence Frisch, President of MAYIM-VIEW CONDOMINIUM CORP., a Florida not for profit corporation, as successor in interest to WATERVIEW CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation, [ ] who is personally known to me or [ ho has produced F i-a 4 14 c . • L • as identification. • C___(..._ Com_ My Commission Expires: Notary Public, State of 'F.4.4 q#{— P�ptr!lg CHARLES Z.KALCHMAN I. 1,7W4*: �+�, Notary Public-State of Florida Commission 8 GG 129758 '01 0"/ My Comm.Expires Sep 22,2021 „;; Bonded through National Notary Assn ` . u 110,00104101% 7 Signed, witnessed, executed and acknowledged this 2z day of &Zci,4 , 2019. Signed, sealed and delivered in the presence of: City of Miami Beach, a Florida municipal corporation Witnesses: L.,, . _ ,\,,,,.,,,k,-,__ _„ ,,,,,_ ,, By: ( Jimmy _. Mora es' City Manager prin Na e. I i;\ - Attest: �`v�\ 8 b,,,, - ��:\ ? Cc_l ul � . , •�� �, I / t5 Print Name: Rafael E. Granado, Clerk J }�' Y.�, . „ ,i ,.INOORP( `ORAiEL Y' v.STATE OF FLORIDA ) ��n� g; Uj ) ss: ?' 1 O��,.. COUNTY OF MIAMI-DADE ) (`: "?' ,{ The foregoing instrument was acknowledged before me this ,202 day of OcI b" - ' , 2019 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. ,- - --,2- . My Commission Expires: Notary Public, State of Florida s'�-*a,'` ', my cOMMISSION#GG 230433 ll EXPIRES:August 27,2022 '"''".A. Uneervrtiten � Public'grEp'�,O•' gamed Ttln�NAY APPROVED AS TO • FORM & LANGUAGE : Fe EX CLITION Easement 9-2019 I 8 to r7(rel City Attorney*-- ate