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HomeMy WebLinkAbout13 Grant of Baywalk Easement @ -,p.'." .t ~ This instrument prepared by: Brian Hart, Esq. Thomson, Muraro, et al. One S.E. 3rd Avenue Suite 1700 Miami, Florida 33131 . (Space Reserved for Clerk of the Court) : GRANT OF BAYWALK EASEMENT KNOW ALL MEN BY THESE PRESENTS THAT: WEST SIDE PARTNERS, LTD., a Florida limited partnership ("Grantor"), in consideration of the sum of One and No/100 Dollars ($1.00) and other good and valuable consideration paid to Grantor by the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation ("Grantee"), the mailing address of which is 1700 Convention Center Drive, Miami Beach, Florida 33139, hereby grants, conveys, bargains and sells to Grantee, or its Permitted Successor (as defined in Paragraph 8 hereof), for the use of the public generally and such persons as shall from time to time be designated by Grantee, a permanent, irrevocable non-exclusive easement (subject to the provisions of Paragraph 14 below), for the purposes herein expressed, over and across that certain parcel of real property (the "Easement Parcel") situated in Miami-Dade County, Florida and more particularly described in Schedule A annexed hereto and hereby made a part hereof. TO HAVE AND TO HOLD the easement hereby granted unto Grantee, and its Permitted Successor, upon and subject to the following terms, conditions and reservations: 1. 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 non-exclusive way of passage, and access to, and reasonable use of, the Easement Parcel as a baywalk for (i) pedestrian use and use by only Grantee and its lessees and/or sublessees of small electric powered-type vehicles or similar vehicles (such as golf carts) which may have natural or liquid propane gas engines (provided said vehicles do not create any more MIA9510/178489-14 ~ @j!)@ ,. .. noise than electric powered vehicles), (ii) access to the contiguous marina property, (iii) the use of emergency and law enforcement vehicles (for emergency use only), (iv) subject to the provisions of Paragraphs 5, 6 and 7 hereof, for the installation, relocation or maintenance of utili ties serving the contiguous marina property and the Easement Parcel in the subsurface of the Easement Parcel and the maintenance of any utility b~xes currently located on the surface of the Easement Parcel, and (v) vehicles necessary to rebuild or replace the piers located adjacent to the Easement Parcel in the event of a casualty or as otherwise required in the normal and customary operation of the marina property (provided such vehicles do not materially interfere with the pedestrian use of the Easement Parcel) . 2. Grantee, or its Permitted Successor, as applicable, agrees that it (i) shall make the Easement Parcel available for use by the public generally and by the lessee of the contiguous marina property for marina operations (the "Marina Lessee"), pursuant to the terms and conditions of that certain Lease Agreement entered into by and between the City, as Lessor, and Carner-Mason Associates, Ltd., as Lessee, dated June 24, 1983, as amended by a First Amendment dated October 23, 1991 (the "First Amendment to the Marina Lease"), a Second Amendment dated August 11, 1994 (the "Second Amendment to the Marina Lease"), a Third Amendment dated May 27, 1997 (the "Third Amendment to the Marina Lease"), and a Fourth Amendment dated April 15, 1998 (the "Fourth Amendment to the Marina Lease"); said Lease Agreement, as amended (hereinafter sometimes collectively referred to as the "Marina Lease"), and any subsequent lessee of the marina property for marina operations, (ii) shall, except as hereinafter expressly provided, restrict the use thereof to, and shall adopt and enforce regulations to limit such use to, pedestrian use, the passage of small electric powered- type vehicles or similar vehicles (such as golf carts) which may have natural or liquid propane gas engines (provided said vehicles do not create any more noise than electric powered vehicles) with respect to Grantee and its lessees and/or sublessees only, and the passage of emergency, law enforcement and repair vehicles as provided for in subparagraph l(v) above, (iii) shall not construct or, except as hereinafter expressly provided, permit to be constructed upon the Easement Parcel any buildings, structures or other improvements of a similar nature and (iv) except only as specifically provided in subparagraph 7(A) below, shall, at its sole cost and expense, restore, maintain and repair,. including, as required, the replacement from time to time of, the Easement Parcel and the rip-rap or other bulkhead and support structures on or abutting the same (specifically including the seawall and all marina facilities located adjacent thereto) in a first class condition comparable to the remainder of Grantor's property and MIA9510/178489-14 2 otherwise in accordance with the Operating Standards (as defined below); and except only as specifically provided in subparagraph 7(A) below, Grantor, its successors and assigns, shall have no restoration, maintenance, repair or replacement obligations with respect to the Easement Parcel, except to the extent that any of the foregoing shall be necessitated as a result of the use of the Easement Parcel by Grantor, its successors and assign~, pursuant to the provisions of this Grant of Easement. 3. The parties acknowledge and agree that the Easement Parcel is intended to be used and maintained in a first class manner and otherwise consistent with the high standard of the properties located adjacent to the Easement Parcel which are owned by Grantor and the highest standards in the city of Miami Beach. The parties shall reasonably' determine standards of use and maintenance consistent with the foregoing sentence [and which at a minimum will include 24-hour a day security (provided that Grantee shall not be obligated to hire private security and may provide the requisite security through the city of Miami Beach municipal police force), daily refuse removal and first class maintenance and repair]. Grantor shall propose to the Grantee reasonable initial use and maintenance standards, including rules and regulations at least 45 days prior to the completion of the construction of the baywalk improvements pursuant to paragraph 7 below, and Grantee shall have 30 days to reasonably review and approve these standards in writing. In the event Grantee disapproves the proposed standards, Grantee shall provide Grantor with specific written reasons therefor within said 3D-day period. In the event Grantee fails to respond to the Grantor in writing within said 3D-day period, the proposed standards shall be deemed approved. The parties agree to use good faith efforts to mutually agree to such standards. Any dispute as to use and maintenance standards which the parties are unable to resolve within the 45 day period prior to completion shall, pursuant to paragraph 9.7 of that certain Agreement dated November 7, 1995, by and among Grantee, the Miami Beach Redevelopment Agency and various Porto fino Entities, including the Grantor, as recorded in Official Records Book 16987, Page 1197 of the Public Records of Miami-Dade County, Florida (the "New Development Agreement"}be submitted for resolution to the Circuit Court of the 11th Judicial Circuit, Miami-Dade County, Florida. The use and maintenance standards, including rules and regulations, as so promulgated and approved are hereinafter collectively referred to as the "Operating Standards." The Grantee shall be responsible, at Grantee's sole cost and expense, for the maintenance of the Easement Parcel in accordance with the Operating Standards as previously established, provided that, Grantee shall be permitted to make non-material modifications to such standards provided further such modifications do not materially reduce the overall MIA9510/178489-14 . 3 standard of quality established by the Operating Standards. Any failure by the Grantee, or its Permitted Successor, to properly use and maintain the Easement Parcel in substantial accordance with the Operating Standards shall be deemed a default hereunder. 4. Grantee, and its Permitted Successor, 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 t~e trial level and all levels of appeal, relating to death of or injury to persons, or loss of or damage to property, incurred by Grantor, its successors and/or assigns, and resulting from, arising out of, or incurred in connection with, use of the Easement Parcel by the public generally or by Grante" or its Permitted Successor and their respective invitees, agents, employees, guests, lessees or licensees in connection with the easement herein granted or the use of the Easement Parcel. In addition, Grantee, and its Permitted Successor, shall defend any and all claims asserted against Grantor, its successors and/or assigns, resulting from, arising out of, or incurred in connection with, 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 in connection with the easement herein granted or the use of the Easement Parcel. In such event, Grantee shall be entitled to select counsel of Grantee's choice to defend the claim, however, Grantor shall be permitted, at Grantor's cost and expense, to retain independent counsel to monitor the claim proceeding. Notwithstanding anything contained herein to the contrary, neither Grantee, nor its Permitted Successor, shall be obligated or liable to Grantor or any third parties for any costs, liabilities, expenses, losses, claims or damages, including, without limitation, reasonable attorneys' fees or disbursements at the trial level and all levels of appeal, in respect of third party claims relating to death of or injury to persons, or loss of, or damage to, property, and resulting from, arising out of or incurred in connection with, use of the Easement Parcel by the public generally or by Grantee or its Permitted Successor and their respective invitees, lessees, agents, employees, guests, or licensees in connection with the easement herein granted or the use of the Easement Parcel, for amounts in excess of those limitations on the statutory waiver of sovereign immunity provided under Florida Statute ~ 768.28 (or any successor statute thereto), or in respect of claims resulting from the intentional or negligent acts of Grantor, its officers, invitees, lessees, employees, agents, licensees or contractors. By execution of the Joinder attached hereto, the Marina Lessee (on behalf of itself and its successors and assigns) consents and agrees to abide by the terms and conditions of this Grant of MIA9510/178489-14 4 Easement, and hereby indemnifies Grantor and the Grantee and holds Grantor and the Grantee harmless from any costs, expenses ,(including, but not limited to attorneys' fees and court costs, at the trial court and any appellate levels) and damages relating to death of or injury to persons, or loss of or damage to property, including, but not limited to, any violation by the Marina Lessee, its invitees, agents, employees, guests, lessees Oi licensees of any laws, rules, regulations or ordinances regarding hazardous materials, hazardous wastes, hazardous substances, solid waste or pollution, whether now existing or hereafter enacted or promulgated, as they may be amended from time to time ("Environment,al Laws"), any presence, release, or threat of release of hazardous materials, hazardous wastes, hazardous substances, solid waste or pollution, at, upon, under, from or within the Easement Parcel arising out of the activities of the Marina Lessee, its invitees, agents, employees, guests, lessees or licensees, the failure of Marina Lessee, its invitees, agents, employees, guests, lessees or licensees to duly perform any obligations or actions required to be taken under any Environmental Laws, including, without limitation, the imposition by any governmental authority of any lien or so-called "super priority lien" upon the Easement Parcel, any clean-up costs, liability for personal injury or property damage or damage to the environment, and any fines, penalties, and punitive damages, or any fines or assessments arising out of failure of the Marina Lessee, its invitees, agents, employees, guests, lessees or licensees to comply with any laws, rules, regulations or ordinances governing the use of the Easement Parcel, which Grantor and/or the Grantee incur as a result of the Marina Lessee and its invitees, agents, employees, lessees and licensees using the Easement Parcel, but excluding any claim resulting from the intentional or negligent acts of the Grantor or the Grantee (and their successors and assigns), and their respective officers, employees, agents or contractors; provided, however, that the foregoing indemnity will not negate or in any way abrogate the City's indemnification of the Marina Lessee pursuant to the terms and conditions of Section 3.12 of the First, Amendment to the Marina Lease. Marina Lessee (and its successors and assigns) shall defend any such claim asserted against the Grantor, its successors and/or assigns, or the Grantee, its successors and/or assigns, resulting from, arising out of, or incurred in connection with said use of the Easement Parcel, pursuant to this Grant of Easement, or prior hereto. In such event, the Marina Lessee shall be entitled to select counsel of its choice to defend the claim; provided, however, that the Grantor shall be permitted, at its cost and expense, to retain independent counsel to monitor the claim proceeding. Prior to taking possession of the Easement Parcel pursuant to this Grant of Easement, the Marina Lessee shall provide to the Grantee and the MIA9510/178489-14 5 Grantor a copy of its liability insurance along with the appropriate endorsement showing the Grantee and the Grantor as additional insureds, which policy shall provide insurance coverage in a commercially reasonable amount for similar type facilities. In the event that the Marina Lessee fails to provide a copy of the renewal information for said liability insurance policy or policies to the Grantee and Grantor prior to the expiratio~ date of said policy or policies, then the right to use the Easement Parcel pursuant to this Grant of Easement shall cease until such time as a copy of said renewal information for said liability insurance policy or policies is provided to the Grantee and the Grantor. Grantee, or its agents or employees, 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 including, but not limited to, any violation by the Grantee, its agents or employees of any Environmental Laws, any presence, release, or threat of release of hazardous materials, hazardous wastes, hazardous substances, solid waste or pollution, at, upon, under, from or within the Easement Parcel by Grantee, its agents or employees, the failure of Grantee, agents or employees to duly perform any obligations or actions required to be taken under any Environmental Laws, including, without limitation, the imposition by any governmental authority of any lien or so-called "super priority lien" upon the Easement Parcel, any clean-up costs, liability for 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 Easement Parcel, and resulting from, arising out of, or incurred in connection with the use of the Easement Parcel by Grantee, or its agents or employees, in connection with the easement herein granted or such use of the Easement Parcel by the Grantee. Grantee, or its successors and assigns shall defend any and all claims asserted against Grantor, its successors and/or assigns, resulting from, arising out of, or incurred in connection with the use of the Easement Parcel by Grantee, or its agents or employees, in connection with the easement herein granted or such use of the Easement Parcel. In such event, Grantee shall be entitled to select counsel of Grantee's choice to defend the claim; provided, however, the Grantor shall be permitted, at its cost and expense, to retain independent counsel to monitor the claim proceeding. Notwithstanding anything contained herein to the contrary, neither Grantee nor its successors or assigns shall be obligated or liable to Grantor or any third parties for any costs, liabilities, expenses, losses, claims or damages, including, without limitation, MIA9510/178489-14 6 reasonable attorneys' fees or disbursements at the trial level and all levels of appeal, in respect of third party claims relating to death of or injury to persons, or loss of or damage to property, and resulting from, arising out of or incurred in connection with the use of the Easement Parcel by Grantee, or its successors and assigns, and their respective agents or employees, in connection with the easement herein granted or the use of the Easement Parcel, for amounts in excess of those limitations on the statutory waiver of sovereign immunity provided under Florida Sta~ute ~ 768.28 (or any successor statute thereto), or in respect of claims resulting from the intentional or negligent acts of Grantor, its officers, invitees, lessees, employees, agents, guests, licensees or contractors. In the event that the Marina Lease expires, or is canceled or terminated, and a new lease for the Marina is not immediately entered into, then, for the period of time that there is no Marina Lease or a new lease for the Marina, Grantee 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 Grantor, its successors and/or assigns to the subject property, and resulting from, arising out of, or incurred in connection with the use of the Easement Parcel, pursuant to the terms of this Grant of Easement. Grantee shall defend any such claim asserted against Grantor, its successors and/or assigns, resulting from, arising out of, or incurred in connection with said use of the Easement Parcel, pursuant to this Grant of Easement. In such event, Grantee ~hall be entitled to select counsel of Grantee's choice to defend the claim; provided, however, that the Grantor shall be permitted, at its cost and expense, to retain independent counsel to.monitor the claim proceeding. Notwithstanding anything contained herein to the contrary, Grantee (without limiting in any way the liability of the Marina Lessee) shall not be obligated or liable to Grantor or any third parties for any costs, liabilities, expenses, losses, claims or damages, including, without limitation, reasonable attorneys' fees or disbursements at the trial level and all levels of appeal, in respect of third party claims relating to death of or injury to persons, or loss of, or damage to, property, and resulting from, arising out of or incurred in connection with said use of the Easement Parcel pursuant to this Grant of Easement, for amounts in excess of those limitations on the statutory waiver of sovereign immunity provided under Florida Statute ~ 768.28 (or any successor statute thereto), or in respect of claims resulting from the intentional or negligent acts of Grantor, its officers, invitees, lessees, employees, agents, guests, licensees or contractors. MIA9510/178489-14 7 5. Grantor reserves unto itself, its successors and assigns, the perpetual right and privilege of: A. Unrestricted access to, over, across and in the Easement Parcel for purposes consistent with the use of the Easement Parcel as contemplated in this Grant of Baywalk Easement [which shall not include vehicular upe except for construction, delivery (provided Grantor agrees to reasonable restrictions on permitted delivery hours and to not permit delivery vehicles to park in the fire lane, which shall be included within the Operating Standards) and/or maintenance vehicles] and provided such uses do not materially interfere with the continuous use of the Easement Parcel as permitted herein by Grantee, or its Permitted Successor and its invitees, agents, employees, guests, lessees and licensees; and B. _Using, in common with others entitled to the use thereof, and granting, without the joinder or consent of Grantee, or its Permitted Successor, to other persons, corporations or entities, the right to use the Easement Parcel for: (i) all environmental remediation purposes; (ii) construction staging purposes; (iii) construction of the easement as contemplated by this Baywalk Easement and the 150- Foot Easement executed of even date herewith, (iv) such other purposes as may be necessary to satisfy Grantor's surviving obligations under the New Development Agreement (if any) and that certain Development Agreement entered into by and among South Shore Development, Inc., a Florida corporation, ~rantee and the Miami Beach Redevelopment Agency dated the 17th day of April, 1986 and recorded in Official Records Book 12873, Page 2612 of the Public Records of Miami-Dade County, Florida (the "1986 Development Agreement"), provided such uses do not materially interfere with the continuous use of the Easement Parcel by the Grantee, or its Permitted Successor and its invitees, agents, employees, guests, lessees and licensees as contemplated in this Grant of Baywalk Easement; and C. Using and occupying, and granting to others the right to use and occupy: (i) Subject to the prov~s~ons of Paragraph 6 hereof, the subsurface of the 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 MIA9510/178489-14 8 tQ construct, install, maintain and operate therein electrical, telephone, telegraph, telecommunication (including cable television), gas, gasoline, sewer, water, and drainage fixtures, related equipment and facili ties and the foundation and footings of and/or anchors for subsurface improvements; and . (iil The use and occupancy reserved herein shall include the right to reconstruct, decorate.or otherwise enhance the appearance of any landscaping and site improvements located on the 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 Operating Standards. Grantor, its successors.and assigns, shall, at its cost and expense, maintain and repair any of the items it shall construct or install on or under the Easement Parcel pursuant to the provisions of this Paragraph 5 (but not Paragraph 7 hereof); provided, however, that notwithstanding anything herein contained to the contrary, this Paragraph 5 shall not be construed or deemed to relieve Grantee, or its Permitted Successor, as applicable, of its obligations to restore, repair and maintain the Easement Parcel strictly in accordance with the provisions of this Grant of Easement. Grantor shall be liable and responsible, to the extent permi tted 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, use of the Easement Parcel by Grantor, its successors and/or assigns, and their 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 contractors. 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, use of the Easement Parcel by Grantor, its successors and/or assigns, and their respective invitees, lessees, agents, employees, guests or licensees, to the extent resulting from the intentional or negligent acts of Grantor, its officers, invi tees, lessees, employees, agents, licensees or MIA9510/178489-14 9 contractors. In such event, Grantor shall be entitled to select counsel of Grantor's choice to defend the claim, however, Grantee shall be permitted, at Grantee's cost and expense, to retain independent counsel to monitor the claim proceeding. 6. The parties agree that in connection with-each of their respective rights to install and maintain utilities in the subsurface of the Easement Parcel pursuant to thi~ Grant of Baywalk Easement, each party (i) shall notify the other of its intention to install, repair or otherwise maintain such utilities, (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 utili ties 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 proposed work of a similar nature by the other party, and (iv) shall not unreasonably interfere with the use of the Easement Parcel by the other party as permitted under this Grant of Baywalk Easement. 7. Grantor hereby agrees to permit the existing underground utilities located outside the Easement Parcel to remain in their present location until such time as Grantor determines, in Grantor's sole discretion, that the relocation of the utilities is necessary in connection with the following: (i) Grantor's environmental remediation of the property adjacent to the Easement Parcel (as well as the Easement Parcel), (ii) Grantor's development of the property adjacent to the Easement Parcel, and/or (iii) the construction of the baywalk improvements in the Easement Parcel. At the time Grantor determines that it is necessary to relocate the utilities, Grantor shall provide at least two (2) weeks notice to Grantee prior to commencing the relocation of the utilities. Grantor shall be responsible for the physical relocation of the utilities (including the relocation of all utility lines to a location within the Easement Parcel but not less than six (6) feet, from the eastern boundary of the Easement Parcel and the relocation of the above ground electrical boxes into the building constructed adjacent to the Easement Parcel), however, Grantee shall be responsible for the payment of all costs and expenses incurred by Grantor to relocate such utilities. In this regard, Grantee agrees to fund the relocation costs and expenses to Grantor within 30 days following receipt of invoices therefor. Notwithstanding any other term contained herein, the responsibility for reconstruction of the existing baywalk, from its present configuration as existing on the date hereof to the locatiop described in Schedule A annexed hereto and made a part hereof shall be as follows: MIA9510/178489-14 10 A. Grantor, its successors or assigns, as applicable, shall, at Grantee's sole cost and expense, construct, or cause to be constructed, a new bulkhead and/or repair the existing rip-rap bulkhead abutting the Easement Parcel. In this regard, Grantee agrees to reimburse Grantor, its successors or assigns, as applicable, for all costs and expenses incurred under this subparagraph A. . B. Grantor, its successors or assigns, as ppplicable, shall be responsible for, and shall bear the cost of 'the initial reconstruction of the surface of the Easement Parcel, including but not limited to relocation of lighting fixtures, removal and resurfacing of the surface and removing and replacing or relocating the existing landscaping, and Grantee agrees to reimburse Grantor, its successors or assigns, as applicable, for all costs and expenses incurred under this subparagraph B. 8. This Grant of Baywalk 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 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 Grant of Easement. For purposes of this Grant of 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 development parcels located adjacent to the Easement Parcel and/or association(sl designated with the responsibility of maintenance of common areas in connection with the development or operation of such adjacent development parcels. 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 Grant of Baywalk Easement shall be binding upon Grantee, its Permitted Successor, and inure 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 Easement Parcel or under this Grant of Baywalk Easement, except to a successor municipal corporation, such successor municipal corporation being herein referred to as a "Permitted Successor"; MIA9510/178489-14 11 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 Easement Parcel in accordance with the terms of this Grant of Baywalk Easement. 9. The easement granted herein is subject t!o all matters listed on Schedule "B" annexed hereto and by this reference made a part hereof and rights, if any, of the United States of America and the State of Florida in and to the Easement Parcel, or any portion thereof. 10. 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 Grant of Baywalk Easement. 11. In the event of litigation arising out of the terms of this Grant of Baywalk Easement or the use of the Easement Parcel, the prevailing party will be entitled to reasonable attorneys' fees and costs at the trial level and all levels of appeal. 12. Upon prior written request of either party, the other party hereto shall furnish the requesting party an estoppel certificate reasonably satisfactory to the requesting party. 13. Grantor, its successors and assigns, shall have the right, but not the obligation, to convey fee title to the Easement Parcel to Grantee, or its Permitted Successor, at any time and from time to time, subject to the provisions of paragraph 14 below, and if Grantor, its successors or assigns, shall elect to do so, Grantee, and its Permitted Successor, hereby agrees that (i) the rear yard requirement for the parcel of land encumbered by this Grant of Easement and the property adjacent thereto shall be reduced to zero (0) feet, (ii) Grantee, or its Permitted Successor, shall accept such conveyance and (iii) Grantor shall have the right to reserve to itself, its successors and assigns, the rights herein reserved to Grantor, its successors and assigns notwithstanding such conveyance. 14. Notwithstanding anything to the contrary set forth herein, this Grant of Easement shall automatically terminate (subject only to the Grantee's obligations of reimbursement as set forth in paragraph 7 above) without the execution of any further documentation upon Grantor conveying to Grantee fee simple title (by quit claim deed) to the Easement Parcel. Each party hereto shall, upon the request of the other party, execute any further documentation reasonably requested to evidence the termination of MIA9510/178489-14 12 this Grant of Easement upon the satisfaction of the above requirement. 15. The Easement Parcel as set forth herein is intended to be the final agreed upon Baywalk Area (the "Baywalk Area") satisfying the baywalk requirements under that certain Development Agreement between South Shore Developers, Inc., a Florida corporation (Grantor's predecessor), Grantee and the Miami Beach Redevelopment Agency, a public agency organized and existinq pursuant to the Community Redevelopment Act of 1969, as amended, Chapter 163, Part III, Florida Statutes (1985), dated April 17, 1986 and recorded in Official Records Book 12873, Page 2612, Public Records of Miami- Dade County, Florida (the "Original Development Agreement") with respect to the SSDI North Parcel as defined in the New Development Agreement. IN WITNESS WHEREOF, Grantor and Grantee have caused this Grant of Easement to be executed in its name. by its undersigned duly authorized officers and its corporate seal to be hereunto affixed, as of the J!J!i day of ~ ' ~lil~999. Signed sealed and delivered in WEST SIDE PARTNERS, LTD., a the presence of: Florida limited partnership By: Nam Title: INC., a General By: (Corporate Seal) STATE OF FLORIDA ) ) SS: CITY OF MIAMI BEACH, a ::~,c,pa~~rporat'on Name: Tit~a~ro .1 Attest: \ ~~ Name: goBoVl-I pp,vu!4fYrL.. Title: City Clerk APPROVED ~ TO FORM & LANGUAGE & FOR EXECUTION ame: FV 1!ef1~~)~e~;~~ MIA9510/178489-14 13 AliA IN/),,,I- (.:/'l;.dPJ;J /~~ COUNTY OF MIAMI-DADE The foregoing instrym~~t w~s acknowledged before m~ tp~s J~ day of '1Y" , i~, 9f>'Y 7huIII:1 ~ , as f-fr:4IW ____ of West Side Partners, Inc., a Florida corporation, General Partner of West Side Partners, Ltd., a Florida limited partnership, on behalf of the corporation and partnership. ~/~he personally appeared before me, i~ personally known to me or produced __ as identification. [NOTARIAL SEAL] OFFICIAL NOTARY SEAL STEVEN M HELFMAN NOTARY PUBUC srATE OF FLORIDA COMMISSION NO. CC726651 MY COMMISSION EXP. APR. 14 Notary: Print Name: Notary Public, S ate of Florida My Commission Expires: Commission Number: STATE OF FLORIDA ) )SS: COUNTY OF MIAMI-DADE ) ~ The foregoing instrument was ackn?~ledged before me. this ~~ ~ day of J-tA..cA , l~ ~ 1Jt/n...) O. /.:.0 ull,.) , as Mayor of City of Miami Beach, Florida, a municipal corporation, on behalf of the corporation. He/~e personally appeared before me, is p~rsonally known to me or produced a s identification. [NOTARIAL SEAL] Notary:~~,,~~ Print Name: !;,1I:11J<) 11.u.c)d..4~ Notary Public, State of Florida My Commission EXPires:~-~-~~ Commission Number:rr/~ 1]2-- OFFICIAL NOTARY SEAL ULLlAN BEAUCHAMP NOTARY PUBUC srATE OF FLORIDA COMMISSION NO. CC738372 Y COMMISSION EXP. APR. 29 002 MIA9510/178489-14 14 JOINDER The undersigned, MIAMI BEACH MARINA ASSOCIATES, LTD., a Florida limited partnership, as the. Marina Lessee, hereby ]OlnS in the foregoing License for purposes of confirming its agreement to the provisions thereof. . N'::~ (}EJ1~IM~t MIAMI BEACH MARINA ASSOCIATES, LTD., a Florida limited partnership By: SoBe Marine, Inc., a Florida corporation, general partner STATE "'~. RID~ ~ SS: COUNTY-ep~ ) The for~ing ~trument was ~nowledged before me thi~ __ day of ~ ' 19~ by Robert W. Christoph as Presiden~f SoBe Marine, Inc., a Florida corporation, which is the general partner of Miami Beach Marina Associates, Ltd., a Florida limited partnership, on behalf of the corporation and the partnership. He/she personal~y app~.a~eq before me, is personally known to me or produced ~) ~~ as identification. [NOTARIAL SEAL] Notary: Print Name. ~- Nota lic, State of My commission expires: OFACIAL NOTARY SEAL -I DIANNE CAPESTANY I NOTARYPUBUCSTATEOFFLORIDA I COMMISSION NO. CCMl1lffl MY COMMISSION EXP. AUG. 122001 MIA9510/178489-14 CONSENT AND SUBORDINATION The undersigned, ORIX USA CORPORATION, a Delaware corporation, as the holder of the leasehold mortgage encumbering the Marina Lease, and recorded in Official Records Book 17673, Page 2862 of the Public Records of Miami- Dade County, Florida, hereby consents to the foregoing Grant of Easement and subordinates the lien of said mortgage to the rights granted in said Grant of Easement. ORIX USA CORPORATION, a Delaware corporation Name: .SO~C.)..J)M ~~~ Name: ~ ~~. 7/;,J.." Title: Vi l!..a t...; 4;J- GED~ ~I A STATEOFFLOIUDA ) ) SS: COUNTY OF FUR"DIV) The foregoin instrument was acknowledged before me thisLO day of L)Lt'JI/J1'Ji3<, 19l'? by' ,as 1J/('r7fJ~s,/Deflo ofORIX USA CORPO nON, a Delaware corporation, on behalf of the corporation. He/she personally appeared before me, is personally known to me or produced as identification. [NOTARIAL SEAL] Not Print Name: Notary Public, State of My commission expires: ~r"""~"'ni MIA9510/178489-14 16 '. .' SCHEDULE A EASEMENT PARCEL The west twenty-five (25') feet of Lots 30 through 42 inclusive, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO.3, according to the Plat thereof, recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, together with any accretions to the west of said lots. . ALSO: The west twenty-five (25') feet of Lots 43, 44, 45, 46, 47, 48A, 49B and 50C of DADE COUNTY PROPERTY. according to the Plat thereof, recorded in Plat Book 14, at Page 70, of the Public Records of Dade County, Florida, together with any accretions to the west of said lots. MIA9S10/17B489-14 EXHIBIT "B" Permitted ExceDtions 1. Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey of the Real Properly. 2. Any claim that those portions of the Real Properly which are submerged and/or lie West of the Westerly line of the lots in the subdivisions as same may be extended in a Southerly direction are sovereign lands of the State of Florida. 3. Rights and easements of the United States Government for commerce, navigation, recreation and fisheries in and to any portion of the Real Properly which have been created by artificial means or accreted to any portions so created and riparian rights. 4. Fifteen Foot Drainage Outfall Drainage Easement across Lots 46 and 47, per Plat recorded in Plat Book 14, Page 70, as set forth in that instrument filed December 15, 1972 under ClerK's File No. 72R-280442. 5. Those certain easements reserved unto the City of Miami Beach and contained on Pages 2777 and 2778 of the Special Warranty Deed filed July 31,1985 in Official Records Book 12590, at Page 2776 and described as follows: (i) underground utility easement over the South 5 feet of Lot 30; (ii) easement over the South 10 feet of Lot 30 for maintenance of the underground utility easement described in subparagraph (i); and (Iii) underground utility easement over Lots 48A, 49B and 50C. 6. 5501 Development Agreement between the City of Miami Beach, Florida, Miami Beach Redevelopment Agency and South Shore Developers, Inc., dated April 17, 1986, filed in Official Records Books 12873, at Page 2612, as assigned to West Side Partners, Ltd., by that certain instrument filed April 7, 1994, in Official Records Book 16313, at Page 1077. 7. Terms and provisions of Portofino Holdings ~380.032(3) Agreement with The Department of Community Affairs filed May 19, 1995, in Official Records Book 16788, at Page 3089, as affected by Notice of Adoption of a Development Order for the Altemative Portofino DRI recorded March 30, 1999 in Official Records Book 18541, at Page 3641. 8. Agreement dated November 7, 1995 by and among the City of Miami Beach, Florida, a Florida municipal corporation, the Miami Beach Redevelopment Agency, a Florida public agency, and the Poriofino Entities listed therein filed November 9, 1995, in Official Records Book 16987, at Page 1197. 9. Declaration of Restrictions recorded June 9, 1997 in Official Records Book 17667, Page 4854. 10. Amended Restated ParKing Agreement by and among the City of Miami Beach, Florida, the Miami Beach Redevelopment Agency and West Side Partners, Ltd., dated as of May 24, 1999, and recorded of even date herewith. Note: All recording references are to the Public Records of Miami-Dade County (formerly Dade County), Florida.