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HomeMy WebLinkAboutExhibit 1SOUTH ROAD PERMANENT EASEMENT AGREEMENT (PARCEL D) THIS SOUTH ROAD PERMANENT EASEMENT AGREEMENT ("Agreement") is made as of , 2005 by THE CITY OF MIAMI, a municipal corporation of the State of Florida ("Ct"), to and for the benefit of FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, f/kla and successor by merger to Flagstone Properties, LLC, a Florida limited liability company ("Flagstone"). RECITALS A. City and Flagstone heretofore entered into that certain Agreement to Enter into Ground Lease dated January 1, 2003 (as may be amended from time to time, the "Agreement to Enter Into Ground Lease"). B. Pursuant to the Agreement to Enter Into Ground Lease, City and Flagstone agreed to enter into a Ground Lease in the form attached thereto as Exhibit "C" (as may be amended from time to time, the "Ground Lease"), subject to and in accordance with the terms and conditions set forth in the Agreement to Enter Into Ground Lease. Unless otherwise defined herein, capitalized terms used herein shall have the meanings given to them in the Ground Lease. C. City is the owner in fee simple of certain upland on Watson Island and certain submerged land located adjacent thereto (collectively, the "Leased Property"), all as more particularly described in the Ground Lease. D. Pursuant to the Ground Lease, City will lease to Flagstone, and Flagstone will lease from City, the Leased Property, and Flagstone or one or more Major Subtenants will develop and operate a mixed use project thereon (the "Project"). E. City will derive substantial benefits from the development and operation of the Project. F. City is also the owner in fee simple of certain other land located on Watson Island, comprising approximately 0.59 acres, as more particularly described and depicted in Exhibit "A", attached hereto and incorporated herein by this reference (the "Easement Area"). G. The proper operation of the Project requires that Flagstone be granted an easement over, across and upon the Easement Area for the purpose of vehicular and pedestrian ingress and egress and access to and from the Project at all times during the Lease Term. H. City has agreed to grant such easement, all as more particularly described herein. NOW, THEREFORE, in consideration of Ten and No/100 Dollars and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, City and Flagstone agree as follows: Entry Road Easement Final 01-03-06 05 AGREEMENTS 1. Recitals. The foregoing recitals are true and correct and are incorporated herein as if set out in full in the body of this Agreement. 2. Grant of Easements. City hereby grants to Flagstone, for the benefit of Flagstone, all Major Subtenants, all Space Tenants, all holders of Approved Tirne Share Licenses, all other tenants, subtenants, sub -subtenants, and other licensees, occupants and users of the Project from time to time, and all of their respective employees and other agents, contractors, subcontractors, invitees and guests and all other Persons corning onto the Project from time to time, and their respective successors and assigns: 2.1 a permanent non-exclusive easement over, across and upon the Easement Area. including all infrastructure relocations, common curb cuts, roadways, driveways, aisles, walkways and sidewalks on the Easement Area from time to time, as approved by the Chief Executive Officer in accordance with the Chief Executive Officer Approval Procedures, for the limited purpose of vehicular and pedestrian ingress and egress and access to and from the Leased Property and the Project during the entire Lease Term; and 2.2 a permanent non-exclusive easement to come upon the Easement Area and areas adjacent thereto from time to time: (I) to design, construct, reconstruct, reconfigure, alter, improve upon, remove, pave, repave, stripe, re -stripe, repair, replace, or provide enhancements (including traffic, directional, and informational signage) to the hardscape surface for the entrance road and/or entrance feature upon the Easement Area (the "Entranceway"); and (ii) to plant, replant, and maintain landscaping thereon (the "Landscaping"); and (iii) otherwise to perform its maintenance and repair obligations hereunder, including provision for safety and security of the Easement Area. The initial design and any reconfiguration of the Entranceway and the Landscaping shall be subject to the prior written approval of the Chief Executive Officer in accordance with the Chief Executive Officer Approval Procedures (taking into consideration the nature of the use of the Easement Area by the public); provided, however, that: (A) should any portion or aspect of such design or reconfiguration have a material impact on the use or future use of the Easement Area, such portion or aspect shall be subject to the approval of the Chief Executive Officer in his sole discretion; and (B) the City shall be deemed reasonable in denying approval for any improvements that result in an increased cost to the City in performing its obligations hereunder or materially affect the future developability of the City -owned property adjacent to the Easement Area. The right of easement granted herein is limited solely to the right the City has to grant such easement. The right to come upon areas adjacent to the Easement Area shall be subject to Flagstone obtaining the prior approval from any other persons that may have an interest in the area adjacent to the Easement Area. The City hereby agrees not to grant any additional easement upon or affecting the Easement Area that will materially interfere with the easement rights granted pursuant to this Agreement; provided, however, that City may grant to other projects on Watson Island ingress or egress easements over portions of the Easement Area for access to such projects. 3. Operations. Flagstone shall regulate the installation and its future maintenance operations as it pertains to any enhancements to the hardscape surfaces and the Landscaping of the Easement Area so as not to conflict or interfere with operations of the City, its tenants, licensees, agents, successors, and assigns and the general public, in the Chief Executive Officer's sole judgment. In the event Flagstone's use or operations, conflict with the operations of the City, its tenants, sub -tenants, sub -sub -tenants, licensees, occupants, users, agents, successors or assigns, or the general public, the City, or its successors or assigns, shall have the right to develop and impose reasonable rules and regulations to govern the use of the Easement Area so as to eliminate or minimize such conflicts and/or interference; provided, however, that the City shall, to the extent practicable, afford Flagstone reasonable access to the Project over the Easement Area at all times. Flagstone shall not encroach beyond the boundaries of the Easement Area. Should the Easement Area be abandoned or discontinued by law or otherwise, said easement shall cease and revert with the Entry Road Easement Final 01-03-06 right of immediate possession and right of entry to the City or its successors in interest, upon the City providing Flagstone thirty (30) days' advance written notification of such action and Flagstone's failure to reactivate usage of the Easement Area within such thirty (30) day period. 4. Chances and Additions to Easement Area. City reserves the right at any time and from time to time and at its sole cost and expense, to make or permit changes or revisions to the Easement Area, including additions to, subtractions from, rearrangements of, alterations of, modifications of or supplements to the Entranceway and Landscaping, Notwithstanding the rights of City above, in the event the change or revision (i) affects the functionality of the Easement Area or Entranceway, (ii) materially and adversely affects Flagstone's use of the Easement Area, or (iii) increases Flagstone's cost for maintenance or repair, Flagstone's prior written consent to such change or addition shall be required, which consent shall not be unreasonably withheld or delayed. 5. Expense and Maintenance Responsibilities. Flagstone shall design and construct the Entranceway, the Landscaping and all related infrastructure improvements, including, but not limited to, all drainage, lighting, pavement, curb, gutter and sidewalks, at Flagstone's sole cost and expense. Flagstone shall keep all Landscaping improvements in a safe, sightly, good and functional condition within the Easement Area during the term of this Agreement at Flagstone's sole cost and expense. All work performed by or on behalf of Flagstone shall be conducted in a lien -free manner. Flagstone, at its sole cost, will be responsible for the maintenance, repair and replacement of the roadway pavement, curb and gutter and sidewalks and all other elements that lie within the Easement Area, and for any repairs or replacements necessitated as a result of its negligence or required in the course of performing its maintenance and repair obligations hereunder. Prior to commencing the construction of the Entranceway, Flagstone shall prepare Construction Plans and Specifications for such entrance road, which Construction Plans and Specifications shall be subject to the City's prior written approval in accordance with the Chief Executive Officer Approval Procedures. Flagstone, at its sole cost, may at any time, with the Chief Executive Officer's prior written approval in accordance with the Chief Executive Officer Approval Procedures, relocate or remove any improvement described provided that such relocation does not unreasonably interfere with the use or the future use of the Easement Area. Flagstone hereby acknowledges that the Easement Area will be shared with utility companies who may not be obligated to restore areas to the same condition as it was prior to the respective utility company's work. Consequently, in the event Flagstone's Construction Plans and Specifications propose the use of unique or specialized materials which utility companies will not restore, Flagstone, at its sole cost and expense, shall be required to provide such restoration. Flagstone shall provide all construction, and Landscaping maintenance, repairs and replacements in a manner that will minimize any unreasonable interference with the use and operations of the City, its tenants, licensees, agents, successors, and assigns and the general public. Flagstone shall ensure that, to the extent practicable, access through and upon the Easement Area is continuous during any construction (after completion of the original improvements), maintenance, repair or replacement, unless otherwise approved by the Chief Executive Officer or his designee in advance, in accordance with the Chief Executive Officer Approval Procedures. The City will assist in recouping any costs incurred by Flagstone in connection with any damage to the Easement Area caused by the negligence or willful misconduct of third parties, provided, however, that the City shall not be required to initiate any legal proceedings or incur any costs associated with same. 6. Notices to Chief Executive Officer. Prior to commencing any initial construction, Landscaping replacements, relocations, and/or removals, hardscape enhancements or reconfiguration of the Entranceway, Flagstone shall give the Chief Executive Officer or his designee thirty (30) days' prior written notice describing the anticipated commencement date(s) and completion date(s) with respect to same, 7. Mechanics' liens. Flagstone shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Easement Area by reason of work, labor, services or materials supplied to Flagstone or anyone having a right to possession of the Easement Area as a result of an agreement, with Flagstone acting, with or without Flagstone's consent. Nothing in this Agreement shall be construed as constituting the request of the City, expressed or implied, by inference or otherwise, to the Major Subtenant, any contractor, subcontractor, laborer or materialman for the performance of any labor or the Entry Road Easement Final 01-03-06 furnishing of any materials, for any specific work on the Easement Area nor as giving Flagstone the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics' liens against the City's interest in the Easement Area. If any mechanics lien shall at any time be filed against the Easement Area, Flagstone shall cause it to be discharged of record (by bonding, notice of bond or otherwise) within thirty (30) days after the date that it has notice of its filing; provided, however, that Flagstone shall not be required to pay or discharge any mechanics' lien within the thirty (30) day period, so long as Flagstone shall in good faith proceed to contest the lien by appropriate proceedings or shall furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorney fees to be incurred in connection with it. If Flagstone does not: I) cause a mechanics' lien to be discharged of record within thirty (30) days after the date Flagstone has notice of the filing of a lien; or ii) in good faith proceed to contest the lien by appropriate proceedings within the thirty (30) day period, then Flagstone shall be in default of this Agreement. 8.Compliance With Permits and Laws. In connection with the construction and maintenance of the Entranceway and Landscaping, Flagstone shall: (i) obtain and maintain all required permits and approvals from applicable Governmental Authorities having jurisdiction or regulatory authority over same; and (ii) comply with all Applicable Laws with respect to the Easement Area, including, but not limited, to Chapter 713, F.S. 9.Indemnity. Flagstone shall indemnify, defend and save harmless City and City's successors, permitted assigns, officials, employees and agents from and against any and all claims, actions, proceedings, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and costs), arising out of, or resulting from, any personal injury, Toss of life or damage to property, which shall occur in, on or over the Easement Area in any way connected to, construction, installation, maintenance and repairs it performs or causes to perform in the Easement Area and the use of the easements described herein (the "Indemnified Matters"). In case any action or proceeding is brought against City by reason of any of the Indemnified Matters, Flagstone, upon sixty (60) days' written notice from City, shall, at its expense, resist or defend the action or proceeding by counsel reasonably satisfactory to City. City shall also be entitled to appear, defend, or otherwise take part in such action or proceeding, at its election, and at the sole expense of City by counsel located within Miami -Dade County, Florida of its own choosing, provided that: (i) such action by City shall not limit or make void any liability of any insurer of Flagstone or City with respect to the claim or matter in question; and (ii) City shall not, without Flagstone's prior written consent, settle any such action or proceeding or interfere with Flagstone's defense or prosecution of such action or proceeding. Notwithstanding the foregoing, Flagstone shall not have any liability with respect to the condition of the roadway surfaces of the Entranceway, except to the extent of damage caused by Flagstone. The provisions of this Section shall survive the expiration or termination of this Agreement. 10. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or rented by Flagstone, its officers, agents, employees, contractors, and sub -contractors, or their Major Subtenants and assigns, invitees or patrons occurring in or about the Easement Area that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Easement Area, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures on the Easement Area, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Easement Area or any person whomsoever whether such damage or injury results from conditions arising upon the Easement Area or upon other portions of the Easement Area or from other sources. Flagstone indemnifies the City, its officers, agents and employees from and against any and all such claims, even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence (but not gross negligence or willful misconduct) of the City, including any of its employees, agents, or officials so long as they are acting within their scope of employment. Entry Road Easement Final 01-03-06 Flagstone acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Easement Area, Flagstone, on behalf of itself, its agents, invitees, employees, contractors, and subcontractors does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Flagstone's use of the Easement Area. 11. Eminent Domain. In the event the whole or any part of the Easement Area is taken by right of eminent domain or any similar authority of law (a "Taking'), the award or awards received in consideration of any such Taking shall be allocated between the parties, based upon the parties' respective interest under this Agreement. 12. Term. This Agreement and the easements, rights, obligations, and liabilities created herein shall become effective immediately upon the mutual execution and delivery hereof shall remain in full force and effect unless and until either the Agreement to Enter Into Ground Lease is terminated or expires in accordance with its terms (without the Ground Lease having been mutually executed and delivered), or the Ground Lease is terminated or expires in accordance with its terms (whereupon the easements granted herein shall be deemed automatically terminated and of no further force or effect). Upon termination of this Agreement, all rights and privileges derived from, and all duties and obligations created and imposed by the provisions of this Agreement, shall terminate and have no further force or effect; provided, however, that the termination of this Agreement shall not limit or affect any remedy at law or in equity that either party may have against any other parties with respect to any liability or obligation arising or to be performed under this Agreement prior to the date of such termination. 13. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made in the manner required by the Agreement to Enter into Ground Lease (and after the Ground Lease is mutually executed and delivered, in the manner required by the Ground Lease), 14. Compliance with Environmental Laws. Flagstone represents and warrants that during the term of this Agreement, it will not use or employ the Easement Area, or any other City -owned property, to handle, transport, store or dispose of any Hazardous Materials and that it will not conduct any activity on Easement Area or City -owned property in violation of any applicable environmental laws. Notwithstanding the foregoing, Flagstone may handle, transport, store or dispose of Hazardous Materials as necessary for Flagstone's Project on the Easement Area as long as such handling, transportation, storage and disposal is performed in strict compliance with all applicable laws and regulations. Flagstone hereby indemnifies and holds harmless the City its officers, employees and agents, from and against all actions and liabilities relating to Flagstone's handling, transportation, storage and disposal of Hazardous Materials on or about the Easement Area or City -owned property. The requirements of this paragraph shall survive the cancellation, revocation, termination or expiration of this Agreement. 15. Hazardous Materials. In connection with its activities hereunder, Flagstone shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules rulings, policies, orders and administrative actions and orders relating to hazardous materials ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including without limitation, any "Hazardous Substances", Hazardous Wastes", Hazardous Materials" or "Toxic Substances" (collectively "Hazardous Materials"), under any such laws, ordinances or regulations. In connection with its activities hereunder, Flagstone shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Easement Area or required for Flagstone's use of any hazardous materials in or about the Easement Area in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon cancellation, revocation, termination or expiration of this Agreement, Flagstone shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Easement Area by Entry Road Easement Final 01-03-06 Flagstone or at Flagstone's direction, to be removed from the Easement Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. Flagstone may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this paragraph shall survive the cancellation, revocation, termination or expiration of this Agreement. The City represents that: (i) To the best of its knowledge, there are no environmental violations, whether under federal, state, or local laws, existing on the Easement Area; (ii) To the best of its knowledge, there are no Hazardous Materials presently existing on the Easement Area. 16. Assignment; Bindlnn Effect. This Agreement may not be assigned, pledged, transferred or encumbered except in connection with any such assignment, pledge, transfer or encumbrance of the Ground Lease as is permitted by the terms of the Ground Lease, Without limiting the generality of the foregoing, it is acknowledged and agreed that Flagstone may assign this Agreement in whole or in part to any Major Subtenant(s), and that Flagstone or any such Major Subtenant(s) may pledge and encumber its rights hereunder in favor of any Approved Mortgagee(s). This Agreement shall be binding upon and inure to the benefit of City and Flagstone and their respective successors and permitted assigns. Every agreement, covenant, promise, undertaking, condition, easement, right, privilege, option and restriction made, granted or assumed, as the case may be, by any party to this Agreement shall run with the land and constitute an equitable servitude on the Easement Area, for the benefit of the Project as provided herein. Any transferee of any part of the Easement Area shall automatically be deemed, by acceptance of the title to any portion of the Easement Area, as the case may be, to have assumed all obligations of this Agreement. 17. Headings. The captions and headings contained in this Agreement are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 18. Non -Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of the Easement Area to Flagstone, it being the intention of the parties hereto and their successors and assigns that nothing in this Agreement, expressed or implied, shall confer upon any person other than the parties hereto and their successors and assigns, any rights over remedies under or by reason of this Agreement. 19. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision beyond such extent or in any other jurisdiction. It is the intention of the parties to this Agreement that if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, the provision shall have the meaning which renders it valid. 20. Responsibility. Notwithstanding anything to the contrary contained in this Agreement, each party to this Agreement shall be liable and responsible for the obligations, covenants, agreements, and responsibilities created by this Agreement and for any judgment rendered hereon only to the extent of its respective interest in the Easement Area and the improvements thereon. 21. Attornevs' Fees. In the event of any litigation or arbitration between the parties, all expenses, including reasonable attorneys' fees and court costs at both the trial and appellate levels, incurred by the prevailing party, shall be paid by the non -prevailing party. The term "attorneys' fees" shall be deemed to include, without limitation, any paraprofessional fees, investigative fees, administrative costs and other charges billed by the attorney to the prevailing party (including any fees and costs associated with Entry Road Easement Final 01-03-06 collecting such amounts). The provisions of this Agreement shall survive the expiration or termination of this Agreement. 22. Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement or any other agreement executed by and between the parties in connection with the Ground Lease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for City and Flagstone to enter into this Agreement. 23. Arbitration. Any dispute arising under this Agreement shall be submitted to binding arbitration in the manner set forth in Article XVII of the Ground Lease. 24, No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any person, other than the parties and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement, including but not limited to any rights or remedies with respect to any maintenance obligations of Flagstone under this Agreement. 25. Construction. Both parties substantially contributed to the preparation and negotiation of this Agreement. Accordingly, this Agreement shall not be construed against the party responsible for preparing it. 26. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without application of its conflict of law principles. 27. Entire Agreement. This Agreement embodies and constitutes the entire understanding between City and Flagstone concerning the Easement Area, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, with respect thereto are merged therein. Nothing in this Agreement shall be construed to make the parties hereto partners or joint venturers or render either of said parties liable for the debts or obligations of the other. The parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this Agreement, and that this Agreement contains the entire agreement between the parties as to all matters contained herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that any oral representations or modifications concerning this Agreement shall be of no force or effect. This Agreement may be modified, altered or amended only by a written amendment duly executed by both parties hereto or their authorized representatives. The Chief Executive Officer is authorized to amend or modify this Agreement as he deems necessary or appropriate. 28. Chief Executive Officer Approval Procedure. Wherever this Agreement references the Chief Executive Officer Approval Procedures, the period for the City's initial response to a request for approval of any construction plans and specifications for all Easement Areas shah be the same as for Construction Plans and Specifications 29. Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any party hereto may execute this Agreement by signing any such counterpart. 30. Default. If, prior to the mutual execution and delivery of the Ground Lease, Flagstone in any manner defaults in the performance of this Agreement, the Chief Executive Officer may give written notice to Flagstone of such default. If Flagstone fails to cure such default within fifteen (15) days after written notice is given to Flagstone (or such longer period as may be reasonably necessary to cure such default), the City may elect to: (i) terminate this Agreement: (ii) proceed to enforce the performance bond(s) obtained in connection with this Agreement; or (iii) pursue any other remedy available at law or in equity. Entry Road Easement Final 01-03-06 If, after the mutual execution and delivery of the Ground Lease, Flagstone in any manner defaults in the performance of this Agreement, the Chief Executive Officer may give written notice to Flagstone of such default, and if the Chief Executive Officer does so, the Chief Executive Officer shall contemporaneously give a copy of such notice to any Approved Mortgagee as to the Marina, provided that such Approved Mortgagee has theretofore given the City written notice of its address for notices and acknowledged in writing its cure rights hereunder, If Flagstone or such Approved Mortgagee fails to cure such default within fifteen (15) days after written notice is given to Flagstone and such Approved Mortgagee (or such longer period as may be reasonably necessary to cure such default), the City may elect to: (i) terminate this Agreement: (ii) proceed to enforce the performance bond(s) obtained in connection with this Agreement; or (iii) exercise such rights and remedies as the City may have under the Ground Lease on account of Flagstone's failure to perform its obligations hereunder. 31. Security Deposit. The Security Deposit (the Security) required pursuant to the Agreement to Enter Into Ground Lease and the Ground Lease, as applicable, shall also serve as security for the faithful performance by Flagstone of all provisions of this Agreement. If Flagstone is in violation beyond any applicable notice or cure period, the City may use apply or retain all or any part of the Security for the payment of (i) any fee or other sum of money which Flagstone was obligated to pay but did not pay, (ii) any sum expended by City on Flagstone's behalf in accordance with the provisions of this Agreement, or (iii) any sum which the City may expend or be required to expend as a result of Flagstone's default hereunder beyond any applicable notice and cure period. The use, application or retention of the Security or any portion thereof by the City shall not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. At any time or times when the City has made any such application of all or any part of the Security Deposit, Flagstone shall deposit the sum or sums equal to the amounts so applied by City within ten (10) days of written notice by the City. 32. Performance Bond. Draft Note: Language for provision to be provided by City's Risk Management Department and Office of City Attorney upon execution of Agreement with specific Exhibit C attachment for Agreement. IN WITNESS WHEREOF, City and Flagstone have executed this Agreement as of the date set forth above. Attest: THE CITY OF MIAMI, a municipal corporation of the State of Flor Priscilla A. Thompson City Clerk By: Joe Arriola City Manager APPROVED AS TO FORM APPROVED AS TO RISK REQUIREMENTS AND CORRECTNESS By: Dania F. Carrillo, Administrator Jorge L. Fernandez Risk Management City Attorney Entry Road Easement Final 01-03-06 FLAGSTONE ISLAND GARDENS LLC, Witness: a Delaware limited liability company By: Flagstone Miami Holdings, LLC, a Delaware limited Iiabil managing member By: Flagstone Property Group, LLC, as a Delaware limited sole and managing member By: By: Print Name and Title: Mehmet Bayraktar, Sole and Managing Member STATE OF COUNTY OF ) ) ) The foregoing instrument was acknowledged before me this day of 2005, by , as the Chief Executive Officer of the City of Miami, a municipal corporation of the State of Florida, on behalf of the City. Personally Known _ or Produced Identification Type of Identification Produced My commission expires STATE OF COUNTY OF ) ) ) Signature: Name: [Print or type] Title: Notary Public Serial No., if any: The foregoing instrument was acknowledged before me this day of , 2005, by , by Mehmet Bayraktar, as the sole and managing member of Flagstone Property Group, LLC, a Delaware limited liability company, as the sole and managing member of Flagstone Miami Holdings, LLC, a Delaware limited liability company, as the sole and managing member of FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, on behalf of each company. Personally Known or Produced Identification Type of Identification Produced Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires Entry Road Easement Final 01-03-06