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HomeMy WebLinkAboutExhibitThis instrument was prepared by: Name: Steve Bassin, Esq. Address: Greenberg Traurig, P.A. 333 S.E. 2nd Avenue Miami, Florida 33131 (Space Above For Recorder's Use Only) CONSTRUCTION AND ACCESS EASEMENT AGREEMENT THIS CONSTRUCTION AND ACCESS EASEMENT AGREEMENT (this "Agreement") is made and entered into this day of , 20_, by and between 191 SW 12 Owner LLC, a Delaware limited liability company ("Developer"), whose address is c/o JDS Development Group, LLC, 120 NE 27th St., Suite 200 Miami, FL 33137, and the City of Miami, a municipal corporation and a political subdivision of the State of Florida ("City", and together with the Developer, collectively, the "Parties"), whose address is 3500 Pan American Drive, Miami, FL 33133. RECITALS: A. City is the owner of land more particularly described on Exhibit "A" lying and situated in Miami -Dade County, Florida (the "City Property"), on which the City owns (i) the First Miami High School, a City -designated historic resource located at 142 SW 11 Street, identified by the Property Appraiser as Folio No. 01-4138-051-0380 (the "First Miami High School"), (ii) park land located at 140 SW 11 Street, identified by the Property Appraiser as 01-0208-050-1010 (the "Southside Park") and (iii) the City of Miami Fire Station No. 4 (the "Existing Fire Station") located at 1105,1115, 1131, and 1133 SW 2 Avenue, identified by the Property Appraiser by Folio Nos. 01-413 8-051-0400, 01-413 8-051-0410, 01-4138-051-0390, 01-413 8-051-0420. B. Developer is the owner of land adjacent to and with the same block as the City Property (the "Developer Property ", and together with the City Property, collectively, the "Property'). C. The Property is subject to a certain instrument entitled "Public Benefit Agreement Regarding Construction of the New Fire Station No. 4" recorded on April 13, 2020 in Official Records Book 31909, at Page 847 of the Public Records of Miami -Dade County, Florida (as amended, restated, supplemented and replaced from time to time, the "PBA", with capitalized terms used but not defined herein, having the meaning set forth therein), pursuant to which the Developer and City have agreed that the Developer shall construct a New Fire Station as part of a mixed -use tower development, which shall include residential, hotel, office, wellness and other uses, along with a parking garage, which shall be followed by improvements to the existing Southside Park, including, but not limited to new playgrounds, dog park, athletic courts, and sculpture lawn space (collectively, the "Project'), all in accordance with the Site Plan (as defined herein). D. City has agreed to grant and create, and Developer desires to obtain, on the terms and conditions hereinafter set forth, certain easements over, across, under and through unimproved portions of the City Property on which the First Miami High School, the Southside Park and the Existing Fire Station are located (collectively, the "Easement Parcel"), as contemplated by the PBA and as described herein. E. Developer intends to develop the Property in substantial conformity with the General Plan, entitled "1133 SW 2nd Ave", prepared by ShoP Architects PC, as approved via Zoning Hearing No. Z2020000109, as may be amended from time to time at the written approval and consent of the City Manager (each as so amended, collectively, the "Site Plan"). F. The Parties desire to enter into this Agreement consistent with the terms and conditions set forth in the PBA. NOW THEREFORE, in consideration of the premises, the Parties hereby agree as follows: 1. Recitals. The above recitals are true and correct and incorporated herein by this reference. 2. Grant of Easements. City hereby grants to Developer, and its employees, contractors, subcontractors, consultants, agents and any other parties which are working on the Project, the following non-exclusive easements during the term of this Agreement over, upon and across the Easement Parcel: (a) for (i) ingress to and egress from llch Street, 12d`Street, 2nd Avenue and all other public right of ways to and from all portions of the Property, (ii) the passage and parking of vehicles (including without limitation construction vehicles) and (iii) access roads to public and private roadways, for pedestrian and vehicular (including without limitation construction vehicles) ingress and egress necessary for the construction of the Project (collectively, the "Access Easement"), and (b) in a manner consistent with the terms of the PBA in order to allow Developer the ability (i) to construct the buildings and improvements in substantial conformity with the Site Plan, and (ii) to install, maintain, repair, replace and remove any common improvements as required and generally consistent with the Site Plan (collectively, the "Construction Easement", and together with the Access Easement, collectively, the "Easements"). The Easements shall expressly include the right of the Developer to utilize such portions of the City Property consistent with the terms of the PBA for construction staging, parking (including, without limitation, for temporary parking of fire station vehicles), hoisting, storage of construction materials, trailers and equipment, and other related and ancillary uses as the Developer may deem necessary for the completion of the Project and the right to relocate and alter the vegetation, paths, entrances, installations and equipment thereon (including, without limitation, for any site and/or foundation work within an area approximately fifteen (15) feet around the Developer's Property), provided that, Developer agrees to preserve and maintain public access to, and use of, both the playground and the grounds surrounding the First Miami High School portions of the City Property throughout the duration of the construction of the Project when portions are not under direct construction; 2 provided however, that Developer shall have the right to protect or take any other steps as set forth in the PBA as may be necessary to facilitate construction of the improvements contemplated by the Site Plan. 3. Term and Consideration. The Easements granted herein shall be retained by Developer until the completion of the Project, and Developer shall not be required to terminate its use of the same until a reasonable time has passed following the issuance of all necessary Temporary Certificates of Occupancy issued by the Miami -Dade County Department of Regulatory and Economic Resources Department as may be required for the occupancy of the entire Project. At any time during which Developer requires access and use of Southside Park and there are no on -going NFS and Park Improvement Activities being performed by Developer, such access and use of Southside Park for parking and staging shall (a) be subject to a payment of Ten Thousand Dollars ($10,000) per month and (b) not exceed eighteen (18) months unless Developer is diligently constructing the Project in good faith, in which case such use shall not exceed forty- two (42) months unless otherwise agreed to, in writing, by the City Manager. This includes providing: (i) alternate parking spaces for City employees of the Existing Fire Station, (ii) parking for contractors, subcontractors and their employees, and (iii) space for staging and storage of construction materials and equipment. Notwithstanding the foregoing, the calculation of the eighteen (18) months described above shall be tolled and the $10,000 per month payment shall not be required during any period in which NFS and Park Improvement Activities are on -going. 4. Maintenance. Developer shall maintain the Easement Parcel in a safe and clean condition during the term of this Agreement and at the expiration of this Agreement, shall further be responsible to restore and return Southside Park to a condition that is better than or equal to the original condition prior to Developer's use. This Section shall survive the expiration of this Agreement. 5. Notices. All notices, demands and requests which may or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by United States Registered or Certified Mail, return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the Parties at the addresses listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday. To the City: City Manager, City of Miami 3500 Pan American Drive Miami, FL 33133 With a copy to: City Attorney, City of Miami Attn: Victoria Mendez, City Attorney Miami Riverside Center 444 S.W. 2nd Ave., 9th Floor Miami, FL 33130 With a copy to: City of Miami Dept. of Real Estate and Asset Management Attention: Daniel Rotenberg, Director 3 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 To Developer: 191 SW 12 Owner LLC c/o JDS Development Group Attn: Michael Stern 120 NE 27th St., Suite 200 Miami, FL 33137 With a copy to: Bercow Radell Fernandez Larkin & Tapanes, PLLC Attn: Melissa Tapanes Llahues, Esq. 200 S. Biscayne Boulevard, Suite 850 Miami, FL 33131 With a copy to: Greenberg Traurig, P.A. Attn: Steve Bassin, Esq. 333 S.E. 2nd Avenue, Suite 4400 Miami, FL 33131 6. Indemnity. The Developer shall indemnify, defend (at its own cost and expense), and hold harmless the City and its departments, agencies, instrumentalities, officials and employees (collectively referred to as "Indemnitees"), and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including reasonable attorneys' fees) or liabilities by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the negligent performance or non- performance of the goods, design, labor, construction, materials, equipment, supplies services contemplated by this Agreement (whether active or passive) of the Developer or its employees, contractors or subcontractors, consultants or other authorized agents and representatives of the Developer (collectively referred to as the "Indemnitor Parties") or which is caused, in whole or in part, by any act, omission, default or negligence (whether active or passive or in strict liability) of the Indemnitor Parties, or any of them, or (ii) the failure of the Developer to comply materially with any of the requirements herein, or the failure of the Developer to conform to applicable laws, statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance or approval of this Agreement. In the event that any third -party asserts a claim against the Developer and/or the Indemnitees for which the Developer is defending the Indemnitees relating to the rights granted by this Agreement, the Developer shall have the right to select its legal counsel for such defense, subject to the approval of the City, which approval shall not be unreasonably withheld. It is understood and agreed that in the event that counsel selected by the Developer charges rates greater than those customarily paid by the City at the time that such claim is asserted, the Parties shall, in good faith, attempt to agree upon such rates or upon an allocation of payment of such rates. The Developer's obligations to indemnify, defend and hold harmless the Indemnitees shall survive the termination or expiration of this Agreement. The Developer shall require its contractors to further comply with the provisions under this section. 7. Insurance. The City's requirements for insurance are attached as Exhibit "B" hereto. Developer or Developer's contractors shall maintain such insurance coverages as are specified on Exhibit "B" and they will be required as specified throughout the term of this Agreement or as indicated with Exhibit B. N 8. Lender Ri,„,hts. Notwithstanding anything to the contrary in this Agreement, before exercising any remedy against Developer for any default under this Agreement: (a) City shall provide Developer's lender ("Lender") and each holder of a Superior Interest in the Developer's Property, including, without limitation, a ground lessor ("Superior Interest Holder"), which notifies City of the existence of such superior interest in the Developer's Property, with written notice of the breach or default by Developer giving rise to same (the "Default Notice") and, thereafter, the opportunity to cure such breach or default as provided for in clause (b); and (b) after Lender or Superior Interest Holder receives a Default Notice, Lender shall have a period of thirty (30) days from receipt of the Default Notice or thirty (30) days beyond the time available to Developer under this Agreement, whichever is longer, in which to cure the breach or default by Developer; provided, if such breach or default is not capable of cure within such cure period, Lender and/or the Superior Interest Holder, if applicable, shall have such additional time as it may reasonable require to cure such breach using commercially reasonable efforts. 9. Covenant Running with the Land. If recorded in the public records of Miami -Dade County, Florida, this Agreement shall constitute a covenant running with the land and shall nonetheless remain in full force and effect and be binding upon City, and its heirs, successors, and assigns until such time as the same is modified, terminated and/or released. 10. Compliance With Laws. The beneficiaries of the Easements shall at all times observe in the use of the Easement Parcel all applicable municipal, county, state and federal laws, ordinances, codes, statutes, rules and regulations. 11. Enforcement. The provisions of this Agreement may be enforced by all appropriate actions at law and in equity by City and/or the respective fee owners, from time to time of the City Property. 12. Force Maieure. The Parties shall not be liable to the other nor be deemed to have defaulted hereunder, and shall excuse the other from their respective obligations under this Agreement for any failure or delay in performing their respective obligations where such failure or delay to perform is caused by a force majeure event, which is defined herein as any acts of national security, national emergency, acts of God, war, act or threats of terrorism, domestic government regulations, strikes (other than strikes of Developer's employees), fire or other natural calamity, disorder, civil disobedience, curtailment of transportation facilities or service, or any other occurrence which makes it illegal or impossible for either of the Parties to perform their respective obligations under this Agreement. Neither party shall be entitled to claim force majeure for events caused, directly or indirectly, by the claiming party or individuals or entities under its control and force majeure is not intended to include any contract dispute between Developer and its contractors. 13. Estoppel. The City shall, within thirty (30) days of its receipt of a written request from Developer, provide Developer with a written estoppel certificate duly executed stating (a) to the best of the City's knowledge, whether Developer is in default or violation of this Agreement and setting forth with specificity the default or violation (if any); (b) that this Agreement is in full force and effect and identifying any amendments to the Agreement as of the date of such certificate; and (c) such other information as may be reasonably requested by Developer or any prospective purchaser or lender. Such estoppel certificate shall be certified to Developer and any prospective purchaser and/or lender, as applicable. The City may change a modest regulatory fee for processing of each such request. 5 14. Miscellaneous. a. Amendment/Release. The Easements granted herein shall be for the term of this Agreement, and shall not be changed, altered or amended except by instrument in writing executed by the City or its successors and assigns and Developer. Further, no modification or amendment shall be effective unless in writing and executed by all Parties (and consented to by any applicable Lender and/or Superior Interest Holder). b. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Developer shall be permitted to assign this Agreement, without the prior written consent of City, to any affiliate of Developer or to any successor owner of the Developer's Property, including, but not limited to Lender or Superior Interest Holder. Any other assignments by Developer shall require the prior written consent of City. c. Construction. The section headings that appear in this Agreement are for purposes of convenience of reference only and are not to be construed as modifying, explaining, restricting or affecting the substance of the sections in which they appear. 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. d. Severabilit \ . If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to the persons or circumstance other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. e. Governing Law. This Agreement shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of Florida. - SIGNATURE PAGES FOLLOW - 2 IN WITNESS WHEREOF, the Parties has executed this Agreement as of the day and year first above written. Signed, sealed and delivered in the presence of: Witness (print name): Witness (print name): 9AVID SCHAcHik STATE OF NEW YORK ) ss: DEVELOPER: 191 SW 12 OWNER LLC, a Delaware limite- liability co m any By: Name: c#it'.vi2e,I Ste✓✓1 Title: _ ;A-ImvumRat Si� vwro!1 , The foregoi g Agreement was acknowledged before me this 6r� (ay of ��120 2--y A , on behalf of 191 SW 12 Owner LLC, a Delaware limited liability company. He/She is personally k jjo3wLW me or presented as identification and who did not take an oath. Notary Public, State of New York NOTARY SEAL/ STAMP Print Name NADJA PA'f0 - NOTMY PUBLIC, STATR OF W w YORK Registratlon No. 01 PA64314'P50 Qualified in Queens County t Commission Expires April 4, 2026 1 ATTEST: Todd B. Hannon, City Clerk Date: APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez, City Attorney CITY: CITY OF MIAMI, a municipal corporation of the State of Florida 1.2 Arthur Noriega V, City Manager Date: APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Risk Management Signed, sealed and delivered in the presence of: Witness (print name): Witness (print name): STATE OF FLORIDA ss: COUNTY OF MIAMI-DADE CITY: CITY OF MIAMI By: Name: Arthur Noriega V, City Manager The foregoing Agreement was acknowledged before me this day of , 20_ by , on behalf of . He/She is personally known to me or presented oath. as identification and who did not take an Notary Public, State of Florida NOTARY SEAL/ STAMP Print Name EXHIBIT "A" LEGAL DESCRIPTION OF CITY PROPERTY The land referred to herein below is situated in the County of Miami -Dade, State of Florida, and is described as follows: Parcel 1: Lot 8 and Lot 11, less the West 10 feet, Block 85 South of MIAMI HEIGHTS, according to the Plat thereof as recorded in Plat Book 5, Page(s) 29, of the Public Records of Miami -Dade County, Florida. Parcel 2: Lot 9, less the West 10 feet, Block 85 South of MIAMI HEIGHTS, according to the Plat thereof as recorded in Plat Book 5, Page(s) 29, of the Public Records of Miami -Dade County, Florida. Parcel 3: Lot 10, less the West 10 feet, Block 85 South of MIAMI HEIGHTS, according to the Plat thereof as recorded in Plat Book 5, Page(s) 29, of the Public Records of Miami -Dade County, Florida. Parcel 4: Lot 12, less the West 10 feet and the North 75 feet of Lot 13 and 1/2, Block 85 South of MIAMI HEIGHTS, according to the Plat thereof as recorded in Plat Book 5, Page(s) 29, of the Public Records of Miami -Dade County, Florida. Parcel 5: Lots 1, 2, 3, 4, 5, 17, 18, 19 and 20, Block 85 South of MAP OF MIAMI DADE CO. FLA. (CITY OF MIAMI SOUTH), according to the Plat thereof as recorded in Plat Book B, Page(s) 41, of the Public Records of Miami -Dade County, Florida. Parcel 6: Lots 6 and 7, Block 85 South of MIAMI HEIGHTS, according to the Plat thereof as recorded in Plat Book 5, Page(s) 29, of the Public Records of Miami -Dade County, Florida. I. I1. EXHIBIT B INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE CONSTRUCTION FIRE STATION 4 Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit (Per Job) $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent and Contractual Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement Extended Completed Operations Endorsement proving 10 years coverage extension following project completion, including City as additional insured Including Crane and Rigging Liability, as applicable Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, if applicable Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an additional insured Including Crane and Rigging Liability, as applicable III. Worker's Compensation Limits of Liability (Part A): Statutory, per State of Florida Employer's Liability Limits of Liability (Part B) $500,000 for bodily injury caused by an accident, each accident. $500,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit Waiver of subrogation IV. Umbrella Policy (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 9,000,000* Aggregate $ 9,000,000* City of Miami listed as an additional Insured. Coverage is excess follow form over all liability polices contained herein. *to coincide with construction V. Intentionally Deleted VI. Professional Liability/Errors & Omissions Any licensed design professional work such as that provided by architects, engineers, construction consultants, etc., shall maintain professional liability insurance: Each Claim $2,000,000 Policy Aggregate $2,000,000 If claims made, retro Date applies prior to contract inception. Coverage is to be maintained and applicable for a minimum of 3 years following contract completion. VIL Payment and Performance Bond $TBD As required by Section 255.05. City listed as Obligee. VIII. Builders' Risk — Such coverage to be required once vertical construction begins Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Total Cost of Renovation Deductible: $25,000 Maximum 5% Maximum on Wind/Hail and Flood A. Coverage Extensions: City of Miami listed as loss payee as their interests may appear Including Storage and transport of materials, equipment, supplies of any kind to be used on or incidental to the project. Equipment Breakdown for testing of al mechanized, pressurized, or electrical equipment. IX. Safety/claims and deductibles Safety and loss control shall be exercised at all times by the Contractor for the protection of all persons, employees, and property. Any hazardous conditions must be promptly identified, reported, and action taken to mitigate as soon as possible. Notice of claims/accidents/incidents associated with this agreement shall be reported to the Contractor's insurance company and to the City's Risk Management department as soon as practical. The Contractor has the sole responsibility for all insurance premiums and shall be fully and solely responsible for any costs or expenses as a result of a coverage deductible, co- insurance penalty, or self -insured retention; including any loss not covered because of the operation of such deductible, co-insurance penalty, self -insured retention, or coverage exclusion or limitation. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval.