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HomeMy WebLinkAbout15 Grant of Easements '., . @" / ":- SA U,L8 This Instrument Prepared By: Thomas V. Eagan, P.A. Steel Hector & Davis LU' 4000 First Union Financial Center Miami, Florida 33131-2398 . GRANT OF EASEMENTS (150 Foot Easement Area) KNOW ALL MEN BY THESE PRESENTS THAT: WEST SIDE PARTNERS, L m., a Florida limited partnership ("Grantor" or "West Side"), as the owner of that certain parcel of real property known as SSDI North and more particularly described on Exhibit A attached hereto and made a part hereof ("SSm North"), in consideration of the sum of Ten and No/lOO Dollars ($10,00) and other good and valuable consideration paid to Grantor by the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation ("Grantee" or "City"), the mailing address of which is 1700 Convention Center Drive, Miami Beach, Florida 33139, hereby grants, conveys, bargains and sells to Grantee, its successors and assigns, and such persons as shall from time to time be designated by Grantee, the following described easements, for the purposes herein expressed, over and across certain portions of SSDI North (said easements hereinafter sometimes collectively referred to as the "Easement Parcel") situated in Miami-Dade County, Florida and more particularly described in Exhibit B-1 (the "North Easement Area") and Exhibit B-2 (the "South Easement Area") attached hereto and hereby made a part hereof ''''~I~IU ~~~ . .... ... TO HAVE AND TO HOLD the easements hereby granted unto Grantee, and its successors and assigns, upon and subject to the following terms, conditions and reservations: 1. The easement hereby granted over and across the North Easement Area shall be for . the purposes of providing to the Grantee, its invitees, agents, employees, guests, lessees and . licensees, a pennanent, irrevocable, non-ex:c1usive way of passage, and access in, to, over, under and across the North Easement Area for (i) vehicular access and use and (ii) the construction, operation and maintenance of underground utility facilities, fixtures and related equipment (whether electrical, telephone, telecommunication, gas, gasoline, sewer, water and drainage), to be installed from time to time; with the right to reconstruct, improve, add to, change the size of or remove such facilities or any of them; to pennit the attachment of conduits, wires or cables of any other company or utility or person and to cut, trim and keep clear all growth or other obstruction that might endanger or interfere with said facilities; provided, however, that the above described use of the North Easement Area shall not unreasonably impede or inhibit the use of the North Easement Area by the Grantor, or otherwise frustrate the rights reserved by the Grantor under this Grant of Easement 2, Notwithstanding the foregoing, Grantor reserves unto itself, its successors and assigns, the permanent, irrevocable and non-exclusive right and privilege of access: (a) on a temporary basis in, to, over, and across the North Easement Area solely for the following limited uses and purposes: (i) construction access, including access for and location of a crane, during the period of time that Grantor constructs a project on that portion of ssm North which is contiguous to the north boundary of the North Easement Area (the "Project"), as well as access in order to construct the roadway, utilities, drainage and any retainer wall approved by the City as well as any baywalk construction pursuant to the Baywalk Easement of even date herewith; and (ii) such access r~IMfOCIft.... 2 " . as may be reasonable and necesslll)' thereafter to perform any maintenance, repair and reconstruction work on the Project or the adjacent baywalk; and (b) on a full-time basis, in, to, over, under and across the North Easement Area for the purpose of: (i) providing and retaining unto the Grantor, its . successors and assigns and their respective invitees, agents, employees, guests, visitors, tenants, lessees, condominium unit owners, licensees, partners, officers, directors and contractots a permanent, irrevocable, non-exclusive way of passage and access to and reasonable use of the North Easement Area for vehicular and pedestrian access to and from the improvement(s) from time to time located on that portion of ssm North located north of the North Easement Area, (ii) to install, maintain and replace landscaping and planters (whether constructed or reconstructed or to decorate or otherwise enhance the appearance of any landscaping, including planters, and any related site improvements), as may be deemed necesslll)' or appropriate to comply with the concept plan referenced in the 1986 ssm Documents for the development of ssm North and the undeveloped portion of ssm South in its current form as last approved by the City, as said plan may be further amended by the parties and approved by the City, from time to time (the "Concept Plan"), (iii) to construct, operate and maintain underground utility facilities, fixtures and related equipment (whether electrical, telephone, telecommunication, including cable television, gas, gasoline, sewer, water and drainage), to be installed from time to time; with the right to reconstruct, improve, add to, change the size of or remove such facilities or any of them; to permit the attachment of conduits, wires or cables of any other company or utility or person and to cut, trim and keep clear all growth or other obstruction that might endanger or interfere with said facilities, and (iv) to allow for minor encroachments (x) resulting from settlement of any buildings constructed on the adjacent parcel, and (y) for any underground footings or similar support devices; provided, however, that the location of '",~~lwoon.., 3 -' . the crane described above and the other uses of the North Easement Area by the Grantor shall not unreasonably impede or inhibit the use of the North Easement Area by the Grantee, or otherwise frustrate the rights granted to the Grantee under this Grant of Easement, . 3, Subject to the rights reserved in paragraph 2 above, Grantor and Grantee agree that (i) Grantee shall make the North Easement Area available for use by the lessee of the contiguous marina property (the "Marina Lessee") and its invitees, agents, employees, lessees and licenses for marina operations, and (ii) neither the Grantor nor the Grantee shall construct or permit to be constructed upon the North Easement Area any buildings, structures or other above ground improvements of a similar nature, except as may presently exist or as allowed pursuant to the Concept Plan or as herein expressly provided. 4, The easement hereby granted over and across the South Easement Area shall be for the purposes of providing to the Grantee, or its successors or assigns, and the Marina Lessee, and said parties' invitees, agents, employees, guests, lessees and licensees, a permanent, irrevocable, and except as herein expressly provided to the contrary, exclusive way of passage, and access in, to, over, under and across the South Easement Area for the following uses and purposes: (i) maintenance of the existing vehicular and pedestrian access to the east side (front) of the core building located on the real property more particularly described in Exhibit C attached hereto and made a part hereof (the "Core Parcel"); (ii) for the Marina Lessee, its successors or assigns, and said party's agents, employees, lessees, licensees and contractors, to maintain, repair, replace and/or relocate the existing underground fuel tanks currently located in the west one hundred (100) feet of Lots 30 and 31, Block III "Ocean Beach, Florida Addition No.3", as recorded in Plat Book 2, at Page 81, of the Public Records of Miami-Dade County, Florida; provided, however, that said underground fuel tanks may .....'ftIXa\IW_._ 'V..ltFtMfOO'hIMl 4 oniybe relocated on Lots 30 and 31, Block 111 "Ocean Beach, Florida Addition No, 3", as recorded in Plat Book 2, at Page 81, of the Public Records of Miami-Dade County, Florida, provided that any such relocation of the existing underground tanks shall not conflict or in any way delay or inhibit the . rights of the Grantor (or its successors and assigns) to construct the improvements on that portion ofSSDI North which is located north of the North Easement Area or such other rights reserved by the Grantor hereunder; and (iii) surface parking; provided, however, that the curb cut currently located on the eastern boundary of the North Easement Area may not be moved by the Grantee, or its successors or assigns, and its invitees, agents, employees, guests, lessees, licensees and contractors, including, without limitation, the Marina Lessee, and its guests, invitees, successors and assigns, without the prior written consent of the Grantor or its successors or assigns in title to the Easement Parcel, which consent shall not be unreasonably withheld or delayed and, provided, further, that: (x) a limited access easement in favor of the owner of the Project is executed and delivered to said owner covering existing roadways currently located on the South Easement Area (as said roadways may be relocated, from time to time) so as to allow the owner of the Project reasonably convenient, direct and continuous access for pedestrian and vehicular traffic via the curb cut to the North Easement Area (as may be necessary) and the Project; and (y) such new curb cut is integrated with any future traffic signalization and median openings on Alton Road, The Marina Lessee shall: (i) maintain the underground fuel tanks located on the South Easement Parcel in accordance with all federal, state and local laws and regulations governing same, and shall indemni1Y, defend and hold Grantor and Grantee and their successors and assigns harmless regarding any envirorunental matters arising out of the construction, installation, use, repair, relocation and/or maintenance of said underground fuel tanks including, without limitation, any and all claims of third '1A~'wocm... 5 .:" parties, claims and/or orders of governmental entities with jurisdiction, on-site or off-site remedial actions, damages, liabilities, costs of compliance with any court or administrative orders or injunctions, any and all costs or damages of any kind as a result of the failure or inability of said fuel . tanks to be in operation either temporarily or permanently, any costs of relocation that may be required and all other costs and expenses arising in relation to any of'the foregoing, including, without limitation, attorneys fees and court costs at trial and all appellate levels, and notwithstanding the foregoing, nothing contained herein shall be construed or operate to require the Marina Lessee to indemnify West Side, as well as its successors and assigns in title to ssm North and/or any entity which is affiliated or related to West Side and/or their officers, directors, employees, consultants, agents or invitees, hereinafter collectively referred to as "WSRP" for loss or damage to the extent occasioned by any intentional or negligent act or omission ofWSRP or any member ofWSRP, or for any loss or damage occasioned solely from any intentional or negligent act or omission of WSRP, and (ii) promptly replace, remove and relocate the existing underground tanks and/or take such other action ifsuch replacement, removal and/or relocation or other action is a requirement by any applicable governmental entity with jurisdiction or by any applicable law, rule or regulation to the obtaining of a building permit or certificate of occupancy with respect to any future construction by West Side, its successors and assigns, on the balance of the ssm North~, if there is any requirement that the Project to be coi1structed on the southerly portion of ssm North cannot be built down to the northerly boundary line of the North Easement Area, then it shall be the responsibility of the Marina Lessee to promptly relocate and/or remove the existing underground tanks or promptly take such other action as may be necessary to allow such construction to be legal, valid and promptly commenced), The City shall: (i) to the fullest extent allowed by law, indemnify, defend and hold 'IA~MfOOI'lILU 6 West Side and its successors and assigns in title harmless regarding any environmental matters arising out of the construction, installation, use and/or maintenance of said underground fuel tanks including, without limitation, any and all claims of third parties, claims and/or orders of . governmental entities with jurisdiction, on-site or off-site remedial actions, damages, liabilities, costs of compliance with any court or administrative orders or injunctions, any costs of relocation that may be required and all other costs and expenses arising in relation to any of the foregoing (including, without limitation, attorneys fees and court costs at trial and all appellate levels), (ii) to the extent the City has standing, to fully and promptly enforce against the Marina Lessee the Marina Lessee's indemnity and hold harmless in favor of the City, as well as other obligations of the Marina Lessee as set forth in the preceding subparagraphs (i) and (ii) above, and (iii) 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, the City shall (1) maintain the underground fuel tanks located on the Easement Parcel in accordance with all federal, state and local laws and regulations governing same, and (2) promptly replace, remove and relocate the existing underground tanks and/or take such other action if such replacement, removal and/or relocation or other action is a requirement by any applicable governmental entity with jurisdiction or by any applicable law, rule or regulation to the obtaining of a building permit or certificate of occupancy with respect to any future construction by West Side on the balance of the SSDI North (~, if there is any requirement that the Project to be constructed on the southerly portion ofSSDI North cannot be built down to the northerly boundary line of the Easement Parcel, then, for said period of time, it shall be the responsibility of the City to promptly relocate and/or remove the existing underground tanks or promptly take such other action as may '\A~woon&AS 7 be necessary to allow such construction to be legal, valid and promptly commenced), Notwithstanding the foregoing, neither Grantee, nor its successors or assigns (without limiting the liability of the Marina Lessee), shall be obligated or liable to Grantor or any third parties for any . costs, liabilities, expenses, losses, chums or damages, including, without limitation, reasonable attorneys' fees or disbursements at the trial level and all levels of appeai, 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 any environmental matters arising out of the construction, installation, use and/or maintenance of said underground fuel tanks, including, without limitation, any and all claims of third parties, claims and/or orders of governmental entities with jurisdiction, on-site or off-site remedial actions, damages, liabilities, costs of compliance with any court or administrative orders or injunctions, any costs of relocation that may be required and all other costs and expenses arising in relation to any of the foregoing (including, without limitation, attorneys' fees and court costs at trial and all appellate levels), for amounts: (i) in excess of those limitations on the statutory waiver of sovereign immunity provided under Florida Statute ~ 768,28 (or any successor statute thereto), or (ii) in respect of claims resulting from the intentional or negligent acts of Grantor, its officers, invitees, lessees, employees, agents, guests, licensees or contractors, 5. 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 this Grant of 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 utilities will not interfere with the use or '1A~1_1oI;lI 8 functioning of existing utilities, (iii) shall, to the extent feasible, integrate any proposed installation, maintenance or repair with any proposed work of a similar na,ture by the other party, and (iv) shall not unreasonably intetfere with the use of the Easement Parcel by the other party as permitted under . this Grant of Easement. 6. The parties acknowledge and agree that the Easement Pai-ce~ the North Easement Area, or the South Easement Area, as applicable, 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, the North Easement Area, or the South Easement Area, as applicable which is 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 routine refuse removal and first-class maintenance and repaic Grantor, Grantee and the Marina Lessee shall have ninety (90) days from the date of full execution hereof to reasonably prepare, review and approve these standards in writing, In the event the Grantor, the Grantee and the Marina Lessee are unable to reach an agreement with respect to the proposed standards on or before the end of ninety (90) days from the date of full execution hereof, then Grantor, Grantee and the Marina Lessee shall each provide the other with specific written reasons therefor within the next fifteen (IS) day period, In the event the Grantor, Grantee and the Marina Lessee fail to respond to the other in writing or fail to resolve their differences within the final fifteen (15) day period, then the disputed items may be submitted for resolution to the Circuit Court of the 11th Judicial Circuit, Miami-Dade County, Florida - Case No, 82-24526-CA-30 (the "Court"), which Court has reserved jurisdiction to resolve any such disputes, The parties agree to use good faith efforts to mutually agree to such standards, The use and maintenance standards, .\,t,~lwocm," 9 including rules and regulations, as so promulgated and approved are hereinafter collectively referred to as the "Operating Standards," The Marina Lessee shall be responsible, at its sole cost and expense, for the maintenance of the South Easement Area in accordance with the Operating . Standards, provided that the Marina Lessee shall be permitted to make non-material modifications to such standards provided such modifications do not materially reduce oVerall standards of quality established by the Operating Standards, Any failure by the Marina Lessee to properly maintain the South Easement Area in substantial accordance with the Operating Standards shall be deemed a default hereunder, In connection with the use of the South Easement Area by the Grantee and/or the Marina Lessee, ifthere is no Marina Lessee, the City, shall bear all costs and expenses associated with the use and maintenance of said parcel, and shall comply with all applicable governmental laws, rules, regulations and codes, In connection with the use of the North Easement Area by the Grantor or its successors and assigns in title to the North Easement Area, the Grantor or its successors and assigns shall bear all costs and expenses associated with the use and maintenance of said parcel, and shall comply with all applicable governmental laws, rules, regulations and codes; provided, however, that said party shall be reimbursed by the Marina Lessee, or if there is no Marina Lessee, the City, for one-half of the nonnal cost incurred in connection with the maintenance and repair of the shared roadway system in the North Easement Area, within thirty (30) days of receipt of written notice requesting said reimbursement, along with an accounting for said cost. 7. 7,1 Grantee, or 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 ,....~,woonlo\l 10 appeal, relating to death of or injury to persons, or loss of or damage to property, 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 the public . generally or by Grantee, or its successors or assigns, and their respective invitees, agents, employees, guests, lessees or licensees in connection with the easement herein granted or such use of the Easement ParceL 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 use of the Easement Parcel by the public generally or by Grantee or Grantee's invitees, agents, employees, guests, lessees or licensees 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, 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 the public generally or by the Grantee, or its successors and assigns, 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 ,...~IWOOftIAS 11 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, . 72 Grantor and 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, its successors and assigns, 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, licensees or contractors, or with respect to a breach of any provision of this Grant of Easement by Grantor or its successors and assigns, or with respect to the intentional or negligent acts of Grantor, its officers, invitees, lessees, employees, agents, licensees or contractors, Further, Grantor and/or its successors or assigns shall defend any and all claims asserted against Grantee, and/or its successors or assigns, 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 or a breach of any provision of this Grant of Easement. 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. Prior to using the Easement Parcel for the purposes described in this '....~lwocrn_ 12 Grant of Easement, West Side shall obtain with respect to the North Easement Area a liability insurance policy, along with the appropriate endorsement showing the City and the Marina Lessee as an additional insured, and shall provide a copy of said policy and . endorsement to the City and the Marina Lessee, and if and to the extent obtainable by West Side (or its successor or assign), such policy must be continuously maintained by West Side or replaced with another acceptable policy upon the expiration of the original policy, and said policy shall provide coverage in connection with the use of the North Easement Parcel by West Side (its successors and assigns) and their invitees, agents, employees, lessees and licensees, for such coverage amounts as are commercially reasonable for similar types of facilities, In the event that West Side fails to provide proof of renewal for said liability insurance policy or policies to the City the expiration date of said policy or policies, then the City may renew such liability insurance policy or policies and West Side or its successor or assign shall promptly reimburse the City for said premium within thirty (30) days of receipt of written demand for payment from the CiW 73 By execution of the Joinder attached hereto, the Marina Lessee agrees to abide by the terms and conditions of this Grant of Easement and indemnifies West Side and the City and holds West Side and the City 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 or licensees of any laws, rules, regulations or ordinances regarding hazardous materials, hazardous wastes, hazardous substances, solid waste or pollution, whether now '.....~I_1IoS 13 " . existing or hereafter enacted or promulgated, as they may be amended from time to time ("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 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 West Side and/or the City incur as a result of the Marina Lessee and its invitees, agents, employees, lessees and licensees using the Easement Parcel, but excluding claims resulting from the intentional or negligent acts of West Side or the City; 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, The Marina Lessee shall defend any such claim asserted against West Side, its successors and/or assigns, and/or the City, 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, the Marina Lessee shall be entitled to select counsel of its choice to defend the claim; '1o\'I'IOU\It~TOI1Ir'--'I7<IwocrnlaS 14 provided, however, that West Side (its successors and assigns) and/or the City (its successors or assigns), 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, the Marina . Lessee shall provide to the City and West Side a copy of its liability insurance, along with the appropriate endorsement showing the City and West Side as additional insureds, which must be continuously maintained by the Marina Lessee or replaced with another acceptable policy prior to the expiration of the original policy, and said 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 City and West Side prior to the expiration date of said policy or policies, then the right to use the Easement Parcel shall cease until such time as a copy of said renewal information for said liability insurance policy or policies is provided to the City and West Side, 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, the City 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 West Side, 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. The City shall defend any such claim asserted against West Side, its successors andior assigns, resulting from, arising .....~,...xm1AJ IS .:. out of, or incurred in connection with said use of the Easement Parcel pursuant to this Grant of Easement In such event, the City shall be entitled to select counsel of its choice to defend the claim; provided, however, that West Side (its successors and assigns), shall be permitted, . at its cost and expense, to retain independent counsel to monitor the claim proceeding. Notwithstanding anything contained herein to the contrary, the City (without limiting in any way the li~bility of the Marina Lessee) shall not be obligated or liable to West Side (its successors and assigns) 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 ~76828 (or any successor statute thereto), or in respect of claims resulting from the intentional or negligent acts of West Side (its successors and assigns), and their respective officers, invitees, lessees, employees, agents, guests, licensees or contractors. 8, This Grant of 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 and liabilities 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, and the Grantor shall remain liable for all of its '\A~woan"" 16 " obligations and liabilities under this Grant of Easement in connection with any matter that arose or occurred prior to the conveyance of its interest in the property encumbered hereby, 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 parcel located adjacent to the Easement Parcel and/or association(s) designated with the responsibility of maintenance of common areas in connection with the development or operation of such adjacent development parcel. 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. This Grant of Easement shall be binding upon Grantee and its successors and assigns, and shall inure to the benefit of Grantee and its successors and assigns, 9, The parties hereto agree that West Side or its successors or assigns shall pay all real estate taxes assessed against the Easement Parcel; provided, however, that West Side or its successors or assigns shall be reimbursed by the Marina Lessee, or if there is no lessee of the contiguous marina property, the City, for real estate taxes assessed against the South Easement Area; said reimbursement to be paid to West Side within 30 days after West Side delivers to Marina Lessee (with a copy to the City) or ifthere is no lessee of the contiguous marina property, the City, written demand for said payment, along with a copy of the current tax bill. West Side shall try to secure a separate tax folio number for the land encumbered by the South Easement Area, 10. In the event of a default hereunder, the non-defaulting party shall be entitled to seek P""~11OI'OOn1Al 17 all remedies available at law or in equity, except for rescission, revocation or tennination of this Grant of Easement 11, Notwithstanding anything to the contrary set forth herein, this Grant of Easement shall be perpetual. . 12. The parties hereto have agreed that the Grantor and its suCcessors and assigns shall be pennitted to include the North Easement Area and the South Easement Area in any zoning or planning calculations, including, without limitation, set backs, floor area ratio, lot size and/or frontage, as though this Grant of Easement did not exist. 13. This Grant of Easement constitutes the entire agreement between the parties hereto relative to the easement hereby granted, and any agreement or representation which is not expressly set forth herein and covered hereby is null and void, Except as set forth herein, there are no promises, representations, or understandings between the parties of any kind or nature whatsoever. Any amendment, modification, or supplement to this Grant of Easement must be in writing and executed by both Grantor and Grantee, Waiver of any breach ofany tenn or provision hereof shall not be deemed a waiver of any subsequent breach of the same or any other tenn or provision hereof 14, This instrument may be executed in any number of counterparts, each of which shall be deemed an original for all purposes and all of which shall be one and the same document 15, If any provision or portion thereof of this Grant of Easement is declared or found by any court of competent jurisdiction to be unenforceable or null and void, such provision or portions thereof shall be deemed stricken and severed from this Grant of Easement, and the remaining provisions and portions thereof shall continue in full force and effect If a portion is so stricken, it is the intention of the parties that the court give such provision its nearest valid and legal meariing. .....1 .....~I'MrOO'n1Al 18 :-'.--'" 16.. This Grant of Easement shall be construed and governed in accordance with the laws of the State of Florida without application of the conflict oflaw principles. All of the parties to this Grant of Easement have participated fully in the negotiation and preparation hereof; and, , . accordingly, this Grant of Easement shall not be more strictly construed against anyone of the parties hereto, 17, Any notices required or permitted to be given under this Grant of Easement 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 Grantee at: 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager With copies to: 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney and Steel Hector & Davis LLP 4000 First Union Financial Center Miami, FL 33131 Attn: Thomas V, Eagan, PA If to West Side: 404 Washington Avenue Miami Beach, Florida 33139 Attn: Margaret Nee , .~1GrOO'hW 19 With a copy to: Greenberg, Traurig, PA 1221 Brickell Avenue Miami, Florida 33131 Attn: Matthew R Gorson, Esq. If to Marina Lessee: Miami Beach Marina As~ociates, Ltd. Miami Beach Marina 300 Alton Road Miami Beach, FL 33139 Attn: Robert W. Christoph With copy to: Carter McDowell, Esquire Bilzin Sumberg Dunn & Axelrod LLP 2500 First Union Financial Center Miami, Florida 33131 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U,S, mails, A party may change its address by sending a notice of such change in accordance with the provision of this Paragraph. 18, Time is of the essence in this Grant of Easement, and no extension of time shall be deemed granted unless made in writing and executed by both Grantor and Grantee, 19, By execution of the Joinder attached hereto, the Marina Lessee agrees to abide by the terms and conditions of this Grant of Easement, and indemnifY West Side and the City and hold West Side and the City harmless from any costs, liabilities, claims or damages, (including, but not limited to attorneys' fees and disbursements at the trial level and all levels of appeal) which West Side and/or the City, or their successor and/or assigns may incur resulting from, arising out of, or incurred in connection with the use of the Easement Parcel by the Marina Lessee, its invitees, agents, employees, guests, lessees or licensees, which results from: (a) any violation by the Marina Lessee, its invitees, agents, employees, guests, lessees or licensees of any laws, rules, regulations or .\ATI'OUVL......1'OI1l -tMOOftIAS 20 ", 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 ("Environmental Laws"), (b) 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 the Marina Lessee, its invitees, agents, employees, guests, lessees or licensees, and (c) 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- Caned "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; 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. 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 """"', u of"'~ ~y of ~ 1'1- Signed, sealed and delivered WEST SIDE PARTNERS, L TO., a Florida limited in the presence of: partnership INC" a Florida 'V.~l-.oon..... 21 Name: 11)(1, - ~~ Name: 0.",",11/. ~ APPROVED AS TO FORM & LANGUAGE & FOREXECunON ~~ ~f~~~ Name: ~~~# ~Pjt STATE OF FLORIDA ) ) SS: ) COUNTY OF MIAMI-DADE CITY OF MIAMI BEACH, FLORIDA, :~cip. i7J Name: Title: Mllj'or Attest: f~rt-- p~ Name: 1<:0 r&ffl"\ ~ MU!fte1t.. Title: City Clerk THE MIAMI BEACH REDEVELOPMENT AGENCY, a public agency organized and existing pursuant to the Community Redevelopment Act of 1969, as amended, Chapter 163, Part III Florida :~tutes t}lJ1 .. . APPROVED AS TO FORM & LANGUAGE & FOR EXECunON 11'1}1!::f!:;; ~/~/j9 . ,0,..1 -'('un~,"=! The foregoing instrument was a1iwledged before me this l;'l day of fJpII . 1991 by _ Inmer . as fJat1J 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,@tshe personally appeared before me, is personally known to me or produced as ide' . . [NOTARIAL SEAL] OFAOAL NOTARY SEAL STEVEN M HELFMAN NOTARY PllBUC STATE OF FLORIDA COMMISSION NO, CC726651 MY COMMISSION EXP. APR. 14 'V.~lwoanW No Print Name: Notary Public, Sate of Florida My Commission Expires: Commission Number: 22 STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this~day of H~ . 199J., by lJe/~e.,)O.IC&.r.l/~, as I16.YIlr- of City of Miami Beach,florida, a unicipal corporation, on behalf of the municipal corporation, He/llIfe personally appeared before me, is personally known to me or produced as identi.fication, [NOTARIAL SEAL] OFFl~~~~~~~ u~UC STATE OF FLORIDA NOTARY ION NO cc73S372 MY ~~~ION EXP, ArR, 29,20U2 NOtary:~ Print Name: Ldl/uJ fu-JJU,.j'4Hf Notary Public, State of Florida My Commission Expires: If ~ -1.-00 2.- Commission Number: C C ") 3 )J> ., 2-- STATE OF FLORIDA ) ) SS: ) COUNTY OF MIAMI-DADE . The foregoing instrument was acknowledged before me this dh..~ay of U~ ' 1911 by NuU-rJ O. !rlJedi,.; as f1J..c.ir..-r II""'; of The Miami Beach Redevelopment Agency, a public agency organized and existing pursuant to the Community Redevelopment Act of 1969, as amended, Chapter 163, Part ill Florida Statutes, He/~ personally appeared before me, is personally known to me or produced as identification, - - [NOTARIAL SEAL] Notary.~jjnJ~l ~~ Print Name: (,'/1,'11,,) 'A'4tJr-I:lJ~ Notary Public, State of Pf-'Jrt d ~ My commission expires: '1-lJ1-UI:>'1- OFFlClAL NOTARY SEAL LILLIAN BEAUCHAMP NOTARY PUBLIC STATE OF FLORIDl' COMMISSION NO ccnKm MY COMMISSION EXF. APk, 29,200:< '\A~I_IU 23 ; . JOINDER The undersigned, MIAMI BEACH MARINA ASSOCIATES, LID" a Florida limited partnership, as the Marina Lessee, hereby joins in the foregoing Grant of Easement for purposes of confirming its agreement to the provisions thereof and for the purpose of suJ>mitting itself to the jurisdiction of the Court in order to resolve any disputes arising out of establishing the Operating Standards, as described in Paragraph 5 in the foregoing Grant ofEaseme.nt MIAMI BEACH MARINA ASSOCIATES, LID" a Florida limited partnership By: SoBe Marine, Inc" a Florida corporation, general partner ~ ~~ ) ) SS: ) Theforegoing instrument was acknowledged before me thi~Y 0 , 19 iF by Robert W, Christoph as President of SoBe Marine, Inc" a Florida corp ration, which is the general partner of Miami Beach Marina Associates, Ltd" a Florida limited partnership, on behalf of the corporation andJ~artiership, H~he personally a~pew:ed b~fore me, is personally known to me or produc..d__ jj~/ as Identtficatton. [NOTARIAL SEAL] , ~=J~:~ Notary Public, State of My commission expires: ---- '''''~'''''''''fll..r'-'''''I~W 24 , EXHIBIT "A" SSDI NORTH PARCEL Lots 30 through 42, inclusive, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO.3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, together with the accretions thereto, ALSO: Lots 43, 44, 45, 46, 47, 48A, 49B and 50C of DADE COUNTY PROPERTY, according to the Plat thereof, as recorded in Plat Book 14, at Page 70, of the Public Records of Dade County, Florida, together with the accretions thereto, EXHIBIT B-t (North Easement Area) Lot 32, in Block Ill, of OCEAN BEACH FLORIDA ADDITION NO, 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida. EXHIBIT B-2 (South Easement Area) Lots 30 and 31, in Block Ill, of OCEAN BEACH FLORIDA ADDITION NO.3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida. . . EXlllBIT "C" CORE PARCEL All of Lots 22 through 29, inclusive, and Lot 21, less the Southerly 40 feet thereof, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO, 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida; together with a 40- foot right-of-way on the Bay side of the Hope and Rebecca Tower property, (being Lots 15 through 20 inclusive and the Southerly 40 feet of Lot 21 in Block 111, of OCEAN BEACH FLORIDA ADDITION NO.3); TOGETHER WITH: The West 2 feet of Lots 15 through 20, inclusive, and the Westerly 40 feet of the Southerly 40 feet of Lot 21, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO, 3, according to the Plat thereof as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida.