Recorded Perpetual Non-Exclusive Easement Agreement
DR Bk 2f,314 P9s 4281 - 43-71i ~21c95~
RECORDED ii41-:17J24-:1~ 14=39:5b
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HARl1EY RUUIW~ GLERY DF GDURT
F#IAMI-DARE GDUh1T`tr FLDRiDA
This instrument prepared by:
Raul J. Aguila, Deputy City Attorney
1700 Convention Center Drive, 4th floor
Miami Beach, FL 33139
p~., 3Za~ .-r~ol -- ppl~0
PERPETUAL NON-EXCLUSIVE EASEMENT AGREEMENT
THIS PERPETUAL NON-EXCLUSIVE EASEMENT AGREEMENT ("Agreement"), is
made this y~ 1'~ day of ~P/Z-I L , 2008, by and between NORTH CARILLON, L.L.C.,
a Florida limited liability company, as grantor (the "Grantor"), and the CITY OF MIAMI
BEACH, a Florida municipal corporation, as grantee (the "Grantee" or "City").
WITNESSETH:
WHEREAS, the Grantor is developing a condominium project known as
Carillon/Canyon Ranch ("Canyon Ranch") to the south of the existing 69th Street right-of--way,
which right-of--way has been used exclusively for public pedestrian access between Collins
Avenue and the beach; and
WHEREAS, Canyon Ranch is on property legally described in Exhibit "A" hereto; and
WHEREAS, Grantor desires to reconfigure and expand the existing 69th Street right-of-
way to add vehicular ingress and egress to and from Canyon Ranch, while maintaining the
public's pedestrian access to and from the beach, as well as allowing public vehicular access to
the eastern terminus of 69th Street, and for such other purposes as Grantee may permit in its
proprietary or regulatory capacity; and
WHEREAS, entities related to the Grantor own abutting properties which are involved in
or related to the improvements contemplated herein, and their joinder and consent are necessary
to accomplish the purposes herein expressed; and
WHEREAS, Carillon South Joint Venture, L.L.C., owns the land (legally described in
Exhibit "B" hereto, "Carillon Central/South") to the south of Canyon Ranch, which property,
together with the Canyon Ranch, is referred to collectively as the "Carillon Property," and WSG
34th Street, LLC owns the land known as the Golden Sands (legally described in Exhibit "C"
hereto, "Golden Sands"} immediately to the north of the existing 69th Street right-of--way; and
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~~
WHEREAS, Grantor through this Agreement is providing sufficient additional land to
reconfigure and expand the existing 69th Street right-of--way to accommodate the vehicular and
pedestrian access and other purposes described above.
The parties therefore hereby mutually covenant and agree as follows:
The above recitals are true and correct, and are hereby incorporated into this
Agreement.
2. The Grantor for and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby grants unto the Grantee, its officers, agents, employees, successors and assigns, a non-
exclusive, perpetual and irrevocable easement, over, under, upon and through the land in Miami-
Dade, County, Florida, more particularly described on Exhibit "D" attached hereto and hereby
made a part hereof (the "Easement Property"), for the purposes of (a) construction and
maintenance of a public road and public pedestrian right-of--way and all purposes and uses
incidental thereto; (b) installation and maintenance of underground utility lines and services;
and (c) such other public purposes(s) as Grantee may permit, in its proprietary and/or regulatory
capacity.
3. Grantor and Grantee hereby acknowledge and agree to the following respective
obligations with regard to maintenance of the Easement Property and the abutting existing 69`"
Street right-of--way (immediately to its north) which, together, will constitute 69th Street from
Collins Avenue to the eastern property line of Grantor, City, and WSG 34`" Street, LLC (said
Easement Property and the existing 69t1' Street right-of--way are hereinafter referred to
collectively as the "Right-of--Way" or "ROW") the Grantee will maintain City underground
water, sewer and storm water improvements (the "Below Ground Improvements"); the Grantor
will maintain all Above Ground Improvements (defined herein below). Utility companies will
maintain their own improvements. All parties shall maintain the above respective areas in a safe
and workmanlike condition. Above ground improvements are defined as those improvements to
be constructed by Grantor pursuant to this Agreement and shall include, without limitation, the
roadway, as well as any pavement, sidewalks, curbs, gutters, surface drainage (including storm
water), street lighting, landscaping, trees, and driveway approaches (the "Above Ground
Improvements").
4. This is anon-exclusive easement and the Grantor specifically reserves the right to
continue to use the Easement Property for all lawful purposes, including, without limitation, {i)
for the granting of easements to public utility companies, subject to the prior written approval of
the CiTy's Engineer or designee, and (ii) for pedestrian and motor vehicle ingress and egress over
and across the Easement Property; provided however, that Grantor's use of the Easement
Property, nor the use of the Easement Property by public utility companies, shall not
unreasonably interfere with the use of the Right-of--Way by the Grantee and the public for the
purposes herein described. The Grantor shall apply for and obtain all required permits for work
and use of the Right-of--Way following execution and recording hereof, as required for any other
similar public right-of--way in the City. All improvements installed in the Right-of--Way shall
be owned by the Grantee.
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5. In consideration of the Grantee's approval of the requested reconfiguration of
the existing 69~' Street right-of--way, and of Grantee's construction of the Right-of--Way, Grantor
and Grantee have agreed as follows:
(a} Grantor acknowledges that its request substantially alters the dedicated
and exclusive public pedestrian accessway that exists in the existing 69~' Street right-of--way
(immediately to the north of and abutting the Easement Property) and agrees hereby to pay
$500,000.00 to the City, for use by the City, as it deems necessary and in the best interest of the
City and of the public, in the North Beach area to enhance pedestrian andlor public gathering
areas or experiences; payable in five (5) equal annual installments of $100,000.00 each, plus
interest at the rate of 4.18 per cent per annum, accrued monthly, with the fast of said payments
beginning with the earlier of the opening of Canyon Ranch Hotel, or July 1, 2008, and each
subsequent payment within five (5) days of the yearly anniversary of the first payment.
(b) In addition, Grantor has agreed to construct the improvements along 69th
Street, between Collins Avenue and the City's North Beach Recreational Corridor (beachwalk)
in accordance with plans submitted to Grantee, subject to the reasonable review and written
approval of City staff, with such construction at the sole cost and expense of Grantor, and which
improvements shall be valued at no less than $1.2 million. A site plan generally depicting the
improvements is attached as Exhibit "E".
(c) Grantor agrees to submit a landscape plan for the sidewalk areas in the
Right-of--Way, subject to the reasonable review and written approval of the City's Public Works,
Planning, and Parks and Recreation Departments. No hedge shall be included in the plan on the
north side. Grantor agrees to install and maintain in perpetuity the approved landscape plan, at
its sole cost and expense.
(d) Grantor also agrees to pay $300,000.00 towards the construction of the
base and paved pathway portion of the public North Beach Recreational Corridor that lies east of
the property owned by Grantor, Carillon South Joint Venture, City, and WSG 34th Street, LLC,
from the south property line of the property legally described in Exhibit "B", to the north
property line of the property owned by WSG 34th Street, LLC, the Golden Sands property
(legally described in Exhibit "C"), according to plans and specifications of the City. Payment
will be made upon completion of construction of the Corridor segment described above. The
City agrees to complete the described portion with landscape, lights and other fixtures provided
for in the design previously approved by the City Commission. This Corridor segment will be
the first scheduled for construction in the North Beach area.
(e) Grantor shall complete all of its work as described herein no later than the
issuance of the Certificate of Occupancy (CO} for the spa on the Carillon Property.
6. Carillon South Joint Venture, L.L.C. and WSG 34th Street, LLC by their joinder
in this Agreement, hereby consent to the improvements provided for in this Agreement, which
improvements and the easement will benefit the Carillion Central/South and Golden Sands
properties.
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7. This non-exclusive easement is granted in perpetuity and may only be terminated
by written agreement of the parties, and which termination shall be further subject to and
conditioned upon approval of the Mayor and City Commission of the City of Miami Beach;
provided, however, that easement rights for all utilities shall remain in place until such utilities
are removed or relocated.
8. This Agreement shall be binding on the successors and assigns of the Grantor and
Grantee.
(a) The ownership of the Easement Property and/or the obligations imposed
hereunder are only transferable to condominium association or master association successors of
the Grantor, except that: transfers may be permitted without the consent of Grantee (x) by
reason of the foreclosure of any existing bona fide unaffiliated third party institutional mortgage
on the Easement Property or any deed to any holder of such mortgage or its wholly owned
affiliate in lieu of foreclosure or (y) to any third party by any such mortgage holder or its wholly
owned affiliate acquiring title through foreclosure or deed in lieu of foreclosure. Transfers may
be also permitted to other transferees that have a demonstrated ability (financial and otherwise)
to perform the obligations arising out of this Agreement coupled with an ownership intexest in
the Easement Property ("other transfers"), subject to Grantee's written approval prior to the other
transfers, which approval shall not be unreasonably withheld.
(b} No transfer shall be effective as to the rights of the City under this Agreement
unless and until executed copies of the documents and other agreements between the parties to
effectuate the transfer are deliver to Grantee including, without limitation, such instrument in
writing and in form and substance satisfactory to Grantee, and in form recordable among the land
records, that the transferee shall, for itself and its successors and assigns, and especially for the
benefit of Grantee, expressly assume all of the obligations of Grantor under the Easement
Agreement and agrees to be liable and subject to all conditions and restrictions to which Grantor
is subject.
9. All improvements contemplated hereunder shall be designed, constructed,
installed and maintained to a standard equivalent in keeping with the type that would be provided
in a first class condominium project and design standards reasonably acceptable to Grantee.
Grantor agrees to fully maintain in perpetuity, at its sole cost and expense, the Above Ground
Improvements in a good state of repair and condition, free of interference or debris, and to at all
times keep and maintain the Above Ground Improvements in a state of condition and repair as to
permit their utilization as contemplated herein.
If Grantor fails to fully maintain the Above Ground Improvements, or expend such sums
of monies as may be required to satisfy its obligations pursuant to the provisions of this
Agreement, including, without limitation, Section 5, the Grantee may, after thirty (30) days
written notice to the Grantor and the parties described in Section 11(c} (collectively, "Canyon
Parties"), and the failure of the Canyon Parties to commence and diligently pursue correction in
good faith and using Canyon Parties' best efforts within such thirty (30} day period ("Cure
Period"), advance such sums of monies as may be reasonably necessary to install improvements
in, preserve, maintain and protect the Above Ground Improvements, and any and all other
obligations of Grantor imposed hereunder; and the Grantee, after advancing such sums of
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monies, shall be entitled to be reimbursed for the total sums advanced plus interest at the highest
rate allowable by law. Nothing contained herein shall impose any obligations upon the Grantee
to advance any sums on behalf of the Grantor. Notwithstanding anything in this Agreement to
the contrary, should any holder of the loans ("Lender") described in the joinder by Lehman
Brothers Holdings, Inc. advise the City within the Cure Period that Lender intends to cure
Grantor's defaults, then the Cure Period for Lender shall be deemed to be that later of (i) thirty
(30) days following expiration of the Cure Period for Grantor or (ii) sixty (60) days after receipt
of written notice from the City of such default.
10. Grantor acknowledges that Grantee provides and will provide police and fire
services and other public and emergency services, over the Above Ground Improvements. If the
Grantee has determined after reasonable investigation that the Grantor or its successors,
including. the successor condominium associations of North Carillon, L.L.C., Carillon South
Joint Venture, L.L.C., any master association and WSG 34th Street, LLC (the "Associations"),
has (have) not maintained the Right-of--Way and the roadway or other improvements affecting
use thereof, including the Above Ground Improvements, in a satisfactory condition and in
accordance with their obligations as set forth herein, and after having given the Grantor,
successors, or the Associations and the Canyon Parties at least thirty (30) days notice of and
opportunity to cure the condition of the Right-of--Way and/or the Above Ground Improvements
as described in Section 9, the Grantor acknowledges that Grantee has the right and standing to
initiate, or intervene in, any proceeding (judicial, administrative or otherwise) relevant to the
condition or maintenance of the Right-of--Way, including without limitation the Above Ground
Improvements. The Grantor and its successors and assigns and Associations hereby forever
waive any objection to such right, standing, initiation or intervention by the Grantee; provided,
however, that all other substantive and procedural rights pertaining to the underlying dispute are
hereby reserved by the Grantor, successors, and Associations . Should the Grantee be required;
based on its inspection of the Above Ground Improvements or otherwise, to initiate or intervene
in proceedings as described above, the Grantor, its successors or assigns or Associations, will
reimburse the Grantee for all its costs and attorneys' fees for such intervention or initiation,
through trial and all appeals, should the Grantee be successful in its action. Should a receiver be
appointed, the Grantor, its successors and assigns, and Associations, shall be obligated for the
costs thereof reasonably incurred, including but not limited to through an Association's fees as
are collected for these and other purposes, or otherwise.
Subject to the Cure Period for the condition of the Right-of--Way and/or the Above
Ground Improvements, the Grantor acknowledges the right of the Grantee to initiate the above
mentioned proceedings to require the Grantor, or its successors, or Associations or their
successors to maintain the Right-of--Way and/or the Above Ground Improvements according to
the standards set forth in this Agreement, including, but not limited to, initiating judicial
proceedings for the appointment of receivers should the Associations or their successors fail to
perform their obligations as stated in this Agreement.
The Grantor acknowledges that, except for the Below Ground Improvements, the Grantee
has and will have no financial obligations for the maintenance of the Right-of Way and/or the
Above Ground Improvements, which are appropriately within the obligations of the Grantor or
the Associations or their successors to maintain.
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Should the successor and/or Associations dissolve, and the successor property owners,
individual or otherwise, fail to undertake the maintenance obligations for the Right-of--Way
and/or the Above Ground Improvements, as set forth herein, the Grantee may, but' is not
obligated to, initiate proceedings as described above against such individual or other property
owners, to create a mechanism, through receivership or otherwise, for the appropriate
maintenance of the Right-of--Way and/or the Above Ground Improvements, at no cost or
obligation to the Grantee.
If the successor or Associations should dissolve, the President, successor trustee or
officer, thereof, shall give notice of such event to the City, pursuant to Section 11(c) below.
In addition to any other right or remedy available under Florida law, Grantee, after
reasonable prior notice to the Canyon Parties of any failure to make any payment to the Grantee
required under this Agreement within the Cure Period, may impose a lien on the Easement Parcel
and the Grantor's and/or successors' and/or Associations' and/or Carillon South Joint Venture,
L.L.C.'s real and/or personal property to secure the timely payment of any funds owed to the
Grantee under this Agreement. The lien shall be effective and have priority as of the date of
recording in the Public Records of Miami-Dade County.
Subject to the provisions of this Agreement, all obligations of Grantor under this
Agreement shall be shared, jointly and severally, by Carillon South Joint Venture, L.L.C., WSG
34th Street, LLC, and their successors and assigns, as if so fully stated throughout this
Agreement.
11. Miscellaneous.
(a} Prevailin>; Party. In the event of litigation arising out of the terms of this
Agreement, the prevailing party in any such action shall be entitled to reimbursement of
reasonable attorneys' fees and costs incurred at trial and all appellate levels.
(b} Construction. The section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation hereof. All of the
parties to this Agreement have participated fully in the negotiation of this Agreement, and
accordingly, this Agreement shall not be more strictly construed against any one of the parties
hereto. In construing this Agreement, the singular shall be held to include the plural, the plural
shall be held to include the singular, and reference to any particular gender shall be held to
include every other and all genders. This 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
Agreement shall be Miami-Dade County, Florida, if in state court, and the U,S. District Court,
Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT,
CITY AND GRANTOR (AND/OR ITS SUCCESSORS AND/OR ASSOCIATIONS)
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY
OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
(c) Notices. Any and all notices required or desired to be given hereunder
shall be in writing and shall be deemed to have been duly given when delivered by hand or three
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(3) business days after deposit in the United States mail, by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the address set forth immediately beneath
each party's signature below (or to such other address as either party shall hereafter specify to
the other in writing). Any party may change the address for notice purposes by giving written
notice thereof to the other parties, which shall be effective upon receipt by each of the other
parties. For the present, the parties designate the following as the respective places for giving of
notice, to wit:
FOR CITY/GRANTEE:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Jorge M. Gonzalez, City Manager
Fax: (305) 673-7782
With a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Fred Beckman, Director of Public Works
Fax: (305) 673-7028
FOR GRANTOR; NORTH CARILLON, LLC; CARILLON SOUTH JOINT
VENTURE, LLC; AND WSG 34TH STREET, LLC:
400 Arthur Godfrey Road, Suite 200
Miami Beach, Florida 33140
Attn: Jeff Graff
and
Lehman Brothers Holdings Inc.
399 Park Avenue, 8~' Floor
New York, NY 10022
Attn: Abbey Kosakowski
and
TriMont Real Estate Advisors
3424 Peachtree Road, Suite 2200
Atlanta, GA 30326
Attn: Mitchell Hunter
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(d) Severability. In the event any term or provision of this Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or be construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed in full force and effect.
(e) Recording. This Agreement shall be recorded in the public records of
Miami-Dade County, Florida.
(f) Amendments; Termination. This Agreement may not be amended,
modified or terminated except by written agreement of all of the parties hereto or their respective
successors andlor assigns and mortgagees. However, with respect to any portion of a parcel
which has been submitted to condominium form of ownership, the association shall be the
successor or assign, and not the individual unit owners, and thus the instrument of amendment,
modification or termination shall be executed on behalf of the successor of the Grantor solely by
the condominium association in lieu of the individual condominium owners and their
mortgagees.
(g) Entire Agreement. This 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.
(h) Hold harmless and indemnification. Grantor 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 the death of or injury to persons, or loss of or damage to property,
incurred by Grantee, its officers, agents, contractors, employees and invitees, resulting from,
arising out of or incurred in connection with, construction, installation, maintenance, or use of
the Right-of--Way by Grantor, its successors and assigns, and their respective officers, invitees,
Iessees, agents, employees, contractors, guests, or licensees, including individual condominium
purchasers, to the extent resulting from the intentional or negligent acts of Grantor, successors
and assigns, and their respective officers, invitees, lessees, employees, agents, guests, licensees,
or contractors.
In addition Grantor shall defend any and all claims asserted against Grantee, or its
successors or assigns, and their respective officers, agents, employees, or contractors resulting
from, arising out of or incurred in connection with the, use of the Right-of--Way by Grantor, its
successors and/or assigns, and their respective officers, invitees, lessees, agents, employees,
contractors, 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 those of its
successors or assigns). 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.
Nothing contained in this Agreement shall be deemed a waiver of any rights of sovereign
immunity of Grantee or a waiver of the limitation placed upon the City's liabilities to third
parties set forth in Section 768.28 of Florida Statutes. Grantee does not intend to waive any of
such rights.
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(i) Insurance. Grantor shall at all times during the term of this Agreement
obtain and maintain with respect to the Easement Property and the Above Ground Improvements
comprehensive general and public liability insurance providing liability insurance against claims
for personal injury, death or property damage, occurring on or about the Easement Property and
the Above Ground Improvements, for at least a combined single limit for bodily injury, death
and property damage liability of Five Million and No/100 Dollars ($5,000,000) per occurrence.
All insurance provided for in this paragraph shall be effective under valid and
enforceable policies issued by highly rated insurers of recognized responsibility that are licensed
to do business in the State of Florida. All such companies shall be rated at least "A - " as to
management, and at least "Class VII" as to financial strength on the latest edition of Best's
Insurance Guide. In the event Best's ratings are discontinued or modified, the parties agree to
comparable ratings reasonably selected by the City; notice of which shall be given by the City as
provided for herein. Each insurance policy shall be marked "premium paid" or accompanied by
other satisfactory evidence of payment of premiums.
All policies of insurance required by this paragraph shall indicate the City of Miami
Beach, Florida as an additional named insured. All insurance policies shall provide that no
change, cancellation or termination shall be effective until at least thirty (30) days after written
notice to the additional named insured.
(j) Title Warranty. Grantor covenants, warrants and represents (i) that it is
the fee simple owner of the Easement Property and has the right, title and capacity to grant the
perpetual easement granted herein, and (ii) LEHMAN BROTHERS HOLDINGS INC., a
Delaware corporation, is the sole lienor and holder of a recorded (or unrecorded) security interest
in the Easement Property.
(k) Time of Essence. Time shall be of the essence for each and every
provision hereof.
(1) 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
Agreement are appurtenant to the Easement Property. The provisions hereof shall run with the
land, shall be binding on and shall inure to the benefit of the parties hereto, their successors and
assigns (which includes the Associations) and the general public.
(m) Estoppel Certificates. Grantee shall, within 30 days after receipt of
request, execute, acknowledge and deliver to any party to this Agreement, its successors or
assigns, or any mortgagee or any proposed purchaser or mortgagee of any portion of the Carillon
Property, a duly executed recordable certificate certifying (i) that this Agreement in full force
and effect and unmodified, or if modified, stating such modification; (ii) whether there are any
unpaid charges to Grantee payable under this Agreement; and (iii) such other information
regarding the status of this Agreement as may be reasonably requested. Notwithstanding the
foregoing, in no event shall Grantee be required to execute more than two (2) such Estoppel
Certificates within any twelve (12) month period.
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9
(n) Release Upon Transfer. Notwithstanding anything in this Agreement to
the contrary, upon any transfer of all of the obligations under this Agreement except for the
obligations of Grantor's contained in Section 5 of this Agreement which are not transferable to
any permitted transferee (except for the ongoing maintenance obligation of the Right-of--Way
landscape plan pursuant to subsection S(c) therein, which may be transferred pursuant to the
provisions of this Agreement), the transferor shall be relieved of all such obligations under this
Agreement except for the obligations of Grantor's contained in Section S of this Agreement
which are not transferable and, without further agreement between the parties to this Agreement
or between the parties to this Agreement and the transferee, it shall be deemed that such
transferee has assumed and agreed to carry out -all of such obligations except for the obligations
of Grantor's contained in Section S of this Agreement which are not transferable of the transferor
so transferred. Grantor shall not be relieved of any of its obligations under Section 5 of this
Agreement (except as to permitted transfer of the maintenance obligations for the Right-of--Way
landscape plan, pursuant to subsection S(c)) under any circumstances but the foregoing shall not
prohibit the Canyon Parties from performing Grantor's obligations under Section 5.
(o) Unavoidable Delay. Whenever a period of time is prescribed in this
Agreement for performance of any obligation, there shall be excluded from the computation of
such period of time, any delays due to strikes, riots, acts of God, inability to obtain labor or
materials, war, governmental laws, regulations or restrictions, or any other cause beyond the
control of the party obligated far such performance.
TO HAVE AND TO HOLD the same unto the Grantee, its successors and assigns
forever, and the Grantor will defend the title to the Easement Property against the lawful claims
of all persons whomsoever.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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1N WITNESS WHEREOF, the Grantor, Grantee, Carillon South Joint Venture, L.L.C.,
and WSG 34th Street, LLC, have caused these presents to be executed in their name, and their
corporate seal to be hereunto affixed, by their proper officers thereunto duly authorized, the day
and year first above written.
GRANTOR:
NORTH CARILLON, L.L.C., a Florida limited
liability comp y
By:
Name: `
Title: / !
400 Arthur Godfrey Rd., Suite 200
Miami Beach, FL 33140
(Corporate Seal)
STATE OF FLORIDA
COUNTY OF MIAMI-DADS
The foregoing instrument was acknowledged before me this i~~ day of
2008, by ~1~ ~. ~1} V2.3~ as
~ C' Carillon, L.L.C., a Florida limited liability company, on
behalf of such entity. He/she is personally known to me or has produced
as identification
.~"R"r'P"•• DENISE F SORIANO
r'=~sn -~~ ^__ Notary Public - State of Florida
• ~~4i~1~7@+Qc~'Jun 25, 2009
=,rF~ v~ow~c Commission ak DD 416499
•~""""'"~, Bonded By National NotaryAssn.
MIAMI 1472195.8 7382423220
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11
Signed, sealed and delivered in the
presence of:
(Type, print or stamp name under signature)
Title or rank and serial number, if any
GRANTEE:
~` o~
CITY ENGINEER DATE
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
CITY OF MIAMI BEACH
Mayor .
1700 Convention Center Drive
Miami Beach, Florida 33139
Th foregoing instrument was acknowledged ~ before me this !~~-- day of
2008, by Matti Herrera Bower, as Mayor, and Robert Parcher, as City
Clerk, of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of
Florida, on behalf of such municipal corporation. They are personally known to me or has
produced ,J /A as identification
My Commission expires:
s ~;~:"'' uuu~rr s~ucwulP
MY COMMI9810N N OD 630418
) EXPIAEB: AprU 2G, 20t0
eanerathrut~ruy~eunaonvnar+
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• r
( lgnature of person takin acknowledgment)
~//iq~l ~~2.Ac1~y~n
(Type, pant or stamp name unSer signature)
Title or rank and serial number, if any
12
APPROVED AS TO FORIv1
AND LANGUAGE AND
CARILLON SOUTH JOINT VENTURE, L.L.C., a
Florida limite/d liability company
By:
Name: ~
Title•
400 Arthur Godfrey Rd., Suite 200
Miami Beach, FL 33140
(Corporate Seal)
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The ~ f •egoing instrument was acknowledged before me this day of
~ 2008, by ~~~ G A ~ ~v~~~ as
1 arillon South Joint Venture, L.L.C., on behalf of such entity.
He/she is personally known to me or has produced ' lcation.
.~~ _ A
~/
Qua: °~A " DENISE P. S~RIANO
Notary Public -State of Florida
~ = s Jun 25, 2009
3~.'~ `o:~ Co~~ion ti~b 41ti499
"%'~of°`;~•' BondedByNationatNotaryAssn-
„„„
MIAMI 1472195.8 7382423220
4/2/08 12:26 PM
(hype, print or stamp name under signature)
Title or rank and serial number, if any
13
Signed, sealed and delivered in the
presence of:
Signed, sealed and delivered in the
WSG 34TH STREET, LLC, a Florida limited
liability comp
By: ` ~ .~~-
Name: -
Title: lr~
400 Arthur Godfrey Rd., Suite 200
Miami Beach, FL 33140
(Corporate Seal)
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
e regoing instrument was acknowledged before me this ~ day of
2008, by ~aC- D• °v~--1t~'c~~~ as
~''9 WSG 34th Street, LLC, a Florida limited liability company, on
behalf of such entity. ,,,^,I- a/she is personally known to me or has produced
as identificat on.
~-'_'--~
,.~~~~~ DENISE P. SORIANO
~~'»~'-; <<" : Notary Public - 51ate o! Fbrida
''~~ ; • rviy Commission Expires Jun 25, 2009
_
My
~ ri e$gP14~~On # DD 416499
.,.,,,,,
''' °F ""'` Bonded 9y NaUona! NotaryAssn.
(Type, print or stamp name under signature}
Title or rank and serial number, if any
MIAMI 1472195.8 7382423220
4/2/48 12:26 PM
14
presence of:
CONSENT BY LEHMAN BROTHERS HOLDINGS INC
The undersigned ("Lender"), as lienor, owner and holder of those certain mortgages
recorded in Official Records Bvok 23631, Page 2746, Official Records Book 22234, Page 2688
and Official Records Book 25130, Page 4308, all in the Public Records of Miami-Dade County,
Florida and the related loan documents (as carne may be amended or modified from time to
time), and including any and all other documents relating to, evidencing and securing the
indebtedness referenced in the • mortgages and the related documents and agreements
(collectively, the "Senior Loan Documents"), on alI or portions of the properties subject to the
above Ageement, and a Mezzanine Loan to the owners of North Carillon and Carillon
CentraUSouth, secured by pledges of membership interests and .other related documents and
agreements (collectively, the "Mezzanine Loan Documents"), hereby consents to this grant of
easement rights as provided herein and subordinates the liens and the effect of its security
interests to this Perpetual Non-Exclusive Easement Agreement.
Except only as expressly provided herein, this consent does not affect or impair the rights
and remedies of Lender as set forth in the Senior Loan Documents, the Mezzanine Loan
Documents or in the master declaration for the Carillon Property.
Sign Name: ~~,~1N'~rtpa~~
Print Name: ~~~y S~ig~e~sa,
Sign Name: I
Print Name: RQNNIF BAPTISTE
-- -- - ---- -
LEHMAN BROTHERS HOLDINGS 1NC., a
Delaware corporation, 399 Park Avenue, 8th Floor,
NY, NY 10022
By: '
Name: LA
Title: AUTIil( RIZED SIGNATORY
STATE OF New York
COUNTY OF New York
)
> ss:
)
The foregoing instrument was acknowledged before me this ~ day of 1 ~ ,
2008 by S~IULAMMITE KIM as AUTHORIZED SIGNATORY of LEHMAN
BROTHERS .HOLDINGS INC., a Delaware corporation, on behalf of the corporation. He/She is
persr~nally known tv me or has produced _ as
identification and who did (did not) take an oath.
~ ~ I. 1
NOTARY PUBLIC/
DEANNA EMIL14
Typed or printed name of notary
M Commission Ex fires: DEANNA EMIll0
y P Notary Public, State of New York
No. 01 EMBi 71082
Quagfied in Richmond County
Serial No., if any: Term Expires Juty 23, 2011
15
MIAMI 1472 (95.8 7382423220
4/2/08 11:42 AM
Exhibit A
North Carillon, L.L.C. Legal Description
Lots 1 through 6, inclusive, in Block B, CORRECTED PLAT OF ATLANTIC HEIGHTS,
according to the Plat thereof, as recorded in Plat Book 9, at Page 14, of the Public Records of
Miami-Dade County, Florida.
AND ALSO
A parcel of land lying East of the Water Line of the Atlantic Ocean as shown on said
CORRECTED PLAT OF ATLANTIC HEIGHTS and lying West of the Erosion Control Line as
shown on establishment of EROSION CONTROL LINE, according to the Plat thereof, as
recorded in Plat Book 105, at Page b2, of said Public Records, and lying South of the Easterly
extension of the North line of said Lot 1 in Block B and lying North of the Easterly extension of
the South line of said Lot 6 in Block B of CORRECTED PLAT OF ATLANTIC HEIGHTS.
TOGETHER WITH
Easements contained in that certain Easement and Operating Agreement, dated July 12, 2002,
recorded July 17, 2002, in Official Records Book 20534, Page 2407, of the Public Records of
Miami-Dade County, Florida.
AND
Easements contained in that certain Development Agreement, recorded July 17, 2002, in Official
Records Book 20534, Page 2440, of the Public Records of Miami-Dade County, Florida.
MIAMI 1472195.8 7382423220
4/3/08 10:47 AM
Exhibit B
Carillon South Joint Venture, L.L.C. -Legal Description
The North 25.00 feet of Lot 48, alI of Lots 49 through 53, inclusive, in Block 1 of AMENDED
SECOND OCEAN FRONT SUBDIVISION, according to the plat thereof, a subdivision
recorded in Plat Book 28, at Page 28, of the Public Records of Miami-Dade County, Florida.
AND ALSO
A parcel of land lying East of the High Water Line of the Atlantic Ocean as shown on said
AMENDED SECOND OCEAN FRONT SUBDIVISION, and lying West of the Erosion Control
Line as shown on establishment of EROSION CONTROL LINE, according to the plat thereof,
as recorded in Plat Book 105 at Page 62 of said Public Records, and lying South of the Easterly
extension of the North line of said Lot 53 in Block 1, and lying North of the Easterly extension
of the South line of said North 25.00 feet of Lot 48 in Block 1 of AMENDED SECOND
OCEAN FRONT SUBDIVISION.
Easements contained in that certain Easement and Operating Agreement, dated July I2, 2002,
recorded July 17, 2002, in Official Records Book 20534, Page 2407, of the Public Records of
Miami-Dade County, Florida.
Easements contained in that certain Development Agreement, recorded July 17, 2002, in Official
Records Book 20534, Page 2440, of the Public Records of Miami-Dade County, Florida
MIAMI 1472195.8 7382423220
4/3/08 10:47 AM
Exhibit C
Golden Sands Legal Description
Lots 5 and 6, in Block A, of ATLANTIC HEIGHTS CORRECTED PLAT, according to the Plat
thereof, as recorded in Plat Book 9, Page 14, of the Public Records of Miami-Dade County,
Florida.
AND
A parcel of land lying Easterly of said Lots S and 6 and being bounded on the North by the North
line of said Lot 5 extended Easterly; bounded on the South by the South line of said Lot 6
extended Easterly; and bounded on the East by the Erosion Control Line of the Atlantic Ocean,
according to the Plat thereof, as recorded in Plat Book 105, Page 62 of the Public Records of
Miami-Dade County, Florida.
All of the above being more particularly described as follows:
Begin at the Northwest corner of said Lot 5; thence South 02° 27' 29" East along the West line
of said Lots 5 and 6, also being the East right-of--way Line of Collins Avenue (State Road A-1-
A) for 100.02 feet to a point of curvature; thence Southeasterly along a 25.00 foot radius curve,
leading to the left, through a central angle of 90° 00' 00" for an arc distance of 39.27 feet to a
point of tangency; thence North 87° 32' 31" East along the North right-of--way line of a 21.00
foot public right-of--way as shown on said plat, also being the South line of said Lot 6 and the
Easterly extension thereof, for 262.66 feet to a point on the Erosion Control Line of the Atlantic
Ocean according to the plat thereof as recorded in Plat Book 105, Page 62 of said Public Records
of Miami-Dade County, Florida; thence North O6° 59' 30" West along said Erosion Control Line
for 125.42 feet to a point on the Easterly extension of the North line of said Lot 5; thence South
87° 32' 31" West along said North line and the Easterly extension thereof for 285.95 feet to the
Point of Beginning.
MIAMI 1472195.8 7382423220
4/3/08 10:47 AM
Exhibit D
EASEMENT PROPERTY
The North 21 feet of that portion of Lot 1, Block "B" of PLAT OF ATLANTIC HEIGHTS
according to the Plat thereof as recorded in Plat Book 4 at Page 146 of the Public Records of
Miami-Dade County, Florida, lying Westerly of the established Erosion Control Line of the
Atlantic Ocean;
TOGETHER WITH:
That portion of land bounded on the north by the south line of the north 21 feet of said lot 1,
bounded on the west by the west line of said lot 1 and bounded by a circular curve concave to the
southeast. Said curve having a radius of 25 feet and being tangent to the above mentioned lines.
MIAMI 1472195.8 7382423220
4!3/08 10:47 AM
Exhibit
SITE PLAN
MIAMI 1472195.8 7382423220
4/3/OS 10:47 AM
Ntj~-Ig-04 FRI 10:49 HIGH SL-Rd6YING. & MAPPING X85 2529SS1
n~~~i sv~vEyrN~ s~ n~~prr~~
~6iJ(.o . `-~ 2
5epien~l~er 2i, a0o4
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car s
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?'fie North 2 # feet of that portion of to# ~, Block 'E" of
PLAT' 0~' A72ANTlC NEIGNrS accordtag to the PIa# hereof os
recor~fad to PIa# Book . 4 af* page l ~G of the Rublla Records
of Mlaml-Dade Cor~n~y fldrlda, #j~ing Westerly of the
estabtlshad ~roslor~ Contr¢I Lfne of tha Aflan#fc Ccean;
AND:
The ex#ernat portion o~ a ctrcvlar curve, cr~navt~a southeasterly,
ha~tn~ a ra~dl~s ~ of 2~ feet, subtended by ~`he following
described tnn~en# lr'nasr the Wes#arly !!ns of dfdremer~tior?ed
Lot 1, Block "B~' of FL4l' 0~' ATlRN#7GN~IGfft'S on the Kest,
and fhs Spufh line of #1ta forth 21 fQet of svJd Lo# 1, on
kM ~ ~ •*~
x` S~~
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''•.
• IA I~ OF FLORIDA; CUUNTY OF pADE
tiEF2E9 Y CERTIFY chat this rs a tru py of the
•,q,nal li d rn fhrs ollice on '
day of
A D 20 ~~
""""^'-"-"'^~"'~'~'~'a'E~'S'' y hanU and OI/irra/ Seal.
~y~ ~-~jARVEY VIN, CLLRK, olCrrcuitendCountyCourts
~' rG .t ~,
D.C.
~eyor No. 48.2
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22360 S.W. 132'Col~rt 1 Suite ~ 161 Miami. Florida 33i8b / 305-250698 ! F$x; 305 232-9551
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CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Robert Parcher
City Clerk
~l`-~
FROM: Raul J. Aguila ~
Deputy City Atto ney
SUBJECT: Canyon Ranch Easement Agreement
DATE: April 8, 2008
Attached please find a recorded copy of the above-referenced Agreement.
Should you have any questions or comments regarding the above, please do not
hesitate to contact me.
RJA1ed