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HomeMy WebLinkAboutExhibit 1FLAGSTONE ENTRY PERMANENT ACCESS EASEMENT AGREEMENT TO CITY (PARCEL Fi THIS EASEMENT AGREEMENT ("Agreement") is made as of , 2004 by FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, flk/a and successor by merger to Flagstone Properties, LLC, a Florida limited liability company ("Flaastone"), to and for the benefit of THE CITY OF MIAMI, a municipal corporation of the State of Florida (" C, ty"). 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, the 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 is also the owner in fee simple of certain other land located on Watson Island located on the bayfront adjacent to the Leased Property, (the "City Property"). F. The proper operation of the City Property requires that the City be granted: (i) an easement over, across and upon that portion of the Leased Property more particularly shown in Exhibit "A" attached hereto and incorporated herein by this reference (the "Entrance Easement Area") for the purpose of vehicular and pedestrian ingress and egress across the Entrance Easement Area for the benefit of the City and access to and from the City Property at all times during the Lease Term. H. Flagstone 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: 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. Flagstone hereby grants to the City, for the benefit of the City, its tenants, subtenants, sub -subtenants, and other licensees, occupants and users of the City Property from time to time, and all of their respective employees and other agents, contractors, subcontractors, invitees and guests and all other persons coming onto the City Property from time to time, and their respective successors and assigns, a permanent non-exclusive easement over, across and upon a portion of the Entrance Easement Area, in such location as is mutually agreed upon from time to time, for the purpose of vehicular and pedestrian ingress and egress and access and delivery to and from the City Property during the entire Lease Term. The right of easement granted herein is limited solely to the right City Easement Final 11-17-05 Flagstone has to grant such easement and solely to the extent of Flagstone's interest in the Entrance Easement Area. The right to come upon areas adjacent to the Entrance Easement Area shall be subject to City obtaining the prior approval from any other persons that may have an interest in the area adjacent to the Entrance Easement Area. 3. City Operations. City shall regulate its future operations of the Entrance Easement Area so as not to conflict or interfere with operations of Flagstone, its Major Subtenants, Space Tenants, licensees, agents, successors, and assigns and the general public. In the event the City's use conflicts with the operations of the Flagstone, its Major Subtenants, Sub -Subtenants, Space Tenants, licensees, agents, successors or assigns or the general public. Flagstone, or its successors or assigns, shall have the right to impose reasonable rules and regulations (including safety and security measures) as approved by the Chief Executive Officer or his designee in advance pursuant to the Chief Executive Officer's Approval Procedures to govern the use of the Entrance Easement Area so as to eliminate or minimize such conflicts and/or interference. 4. Expense. Flagstone shall design, construct, maintain, repair and replace the improvements on the Entrance Easement Area and shall keep such improvements in a safe, sightly, good and functional condition within the Entrance Easement Area during the term of this Agreement, all in a lien -free manner and at Flagstone's sole cost and expense. Flagstone, at its sole cost, may at any time, subject to the City'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 of the Entrance Easement Area pursuant to Section 2 above. Flagstone shall provide all construction, maintenance, repairs and replacements in a manner that will minimize any interference with the use and operations of the City, its tenants, licensees, agents, successors, and assigns and the general public. Subject to the provisions of Section 3 above, Flagstone shall ensure, to the extent practicable, that access through and upon the Entrance Easement Area is continuous during any construction (after the completion of the original improvements), maintenance, repair, or replacement, unless otherwise approved by the Chief Executive Officer or his designee, pursuant to the Chief Executive Officer's Approval Procedures. 5. Compliance With Permits and Laws. In connection with the construction and maintenance of the Entrance Easement Area, 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 Entrance Easement, including, but not limited, to Chapter 713, F.S. 6. Term. This Agreement and the easements, rights, obligations, and liabilities created herein shall become effective immediately upon the mutual execution and delivery hereof and 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 party with respect to any liability or obligation arising or to be performed under this Agreement prior to the date of such termination. 7. 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). 8. Assignment: Bindinstl 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 City Easement Final 11-17-05 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 Entrance Easement Area, as the case may be, and for the benefit of the City Property as provided herein. Any transferee of any part of the Entrance Easement Area shall automatically be deemed, by acceptance of the title to any portion of the Entrance Easement Area, as the case may be, to have assumed all obligations of this Agreement. 9. Headings. The captions and headings contained in this Agreement are for convenience of reference only and shall not affect the construction of interpretation of this Agreement. 10, Non -Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of the Easement Area to the City, 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 or remedies under or by reason of this Agreement. 11. Severabilitv,. 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. 12. Responsibility. Notwithstanding anything to the contrary contained in this instrument, 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 its Entrance Easement Area. 13. Attorneys' 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 collecting such amounts). The provisions of this Agreement shall survive the expiration or termination of this Agreement. 14. 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. 15. 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. 16. 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. City Easement Final 11-17-05 17. 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. 18. 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. 19. Entire Agreement. This Agreement (together with all the exhibits hereto and any future easements, agreements, or other documents contemplated hereby) collectively represents the entire agreement between the parties hereto concerning its subject matter. No representations, inducements, promises or agreements, oral or otherwise between the parties not embodied or described in this Agreement shall be of any 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. 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. 20. Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, City and Flagstone have executed this Agreement as of the date set forth above. Attest: Priscilla A. Thompson City Clerk APPROVED AS TO RISK REQUIREMENTS Dania F. Carrillo, Administrator Risk Management Witness: By: Print Name and Title: City Easement Final 11-17-05 THE CITY OF MIAMI, a municipal corporation of the State of Florida By: Joe Arriola City Manager APPROVED AS TO FORM AND CORRECTNESS By: Jorge L. Fernandez City Attorney FLAGSTONE ISLAND GARDENS LLC, a Delaware limited liability company By: Flagstone Miami Holdings, LLC, a Delaware limited liability company, as its sole and managing member By: Flagstone Property Group, LLC, as a Delaware limited liability company, as its sole and managing member By: Mehmet Bayraktar, Sole and Managing Member STATE OF COUNTY OF The foregoing instrument was acknowledged hefn-t: me this day of , 2004, by , trie L uef Executive Officer of the City of Miami, a municipal corporation of the Stete of Florida, on behalf of the City. Personally Known or Produced Identification Type of Identification Produced STATE OF COUNTY OF Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires 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, an 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 City Easement Final 11-17-05