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HomeMy WebLinkAboutExhibitPURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT, (the "Agreement") is made and entered into this day of , by and between Biscayne Bay Yacht Club, a Florida non-profit corporation, with offices at 2540 South Bayshore Drive, Miami, Florida (the "Seller") and the City of Miami, a municipal corporation of the State of Florida, with offices at 444 SW 2 Avenue, Miami, Florida 33130-1910 (the "Purchaser"). RECITALS The Seller is the record title holder of approximately 4.3 acres of upland located along South Bayshore Drive, as depicted in Exhibit "A" attached hereto with an address of 2540 South Bayshore Drive, Miami, Florida (the "Seller's Property"). The City is the record title holder of approximately 3.085 acres of submerged land lying adjacent to the Seller's Property, as more particularly described in Exhibit "B" attached hereto (the "Submerged Lands"); and The City desires to acquire a 22 foot wide strip of Seller's Property fronting on South Bayshore Drive (the "Bayshore Drive Frontage") and the Seller wishes to obtain an easement from the City for use of the Submerged Lands for dockage purposes pursuant to that certain Submerged Lands Easement Agreement (the "Easement Agreement"), a copy of which is attached hereto as Exhibit "C". In consideration for the granting of the easement described in the Easement Agreement, the parties have agreed to simultaneously execute this Agreement with the execution of the Easement Agreement. NOW, THEREFORE, the Parties hereby agree that Seller shall sell and Purchaser shall buy the Bayshore Drive Frontage upon the following terms and conditions: 1. DESCRIPTION OF PROPERTY (a) Legal Description: See Exhibit "D", attached hereto. Containing approximately 6,104 square feet, more or less. (b) Street Address: 22 ft. strip along South Bayshore Drive, adjacent to 2540 South Bayshore Drive, Miami, Florida PURCHASE PRICE, ADJUSTMENTS, APPRAISALS AND PAYMENT The Purchaser agrees to pay and the Seller agrees to accept for the Bayshore Drive Frontage the sum of Three Hundred and Ninety-six Thousand, Seven Hundred and Sixty Dollars ($396,760) (the "Purchase Price"). The Purchase Price may be reduced by no more than ten percent (10%) based on the cost of environmental remediation, as provided in Section 4(d) below. The Purchase Price, as it may be adjusted, will be payable as follows: (a) Deposit: No Deposit shall be required in connection with this Agreement, (b) Closing Payment: At Closing, the balance of the Purchase Price adjusted by adjustments, credits, prorations, or as otherwise provided in this Agreement shall be reduced from the amount of consideration payable by Seller to Purchaser pursuant to that Easement Agreement CONDITIONS PRECEDENT TO CLOSING, PERFORMANCE BY SELLER. A condition precedent to Seller's obligation to convey the Bayshore Drive Frontage to the City and to otherwise close under and be liable for the terms of this Agreement is the City's grant of the easement described in the Easement Agreement attached hereto as Exhibit C and the occurrence of all State of Florida action necessary for the easement granted by said Easement Agreement to become effective including but not limited to the issuance of the State approval described in Exhibit C. Seller hereby warrants to Purchaser that, at the time of closing, there will be no parties in possession of the Bayshore Drive Frontage other than Seller, and that there are no oral or written leases, options to purchase, rights of first refusal or contracts for sale covering all or part of the Bayshore Drive Frontage. Seller shall further warrant that there are no parties other than Seller having ownership of improvements on the Bayshore Drive Frontage and no parties other than Seller having any interest in the Bayshore Drive Frontage. 4. ENVIRONMENTAL MATTERS (a) Definitions: For purposes of this Section 4, Environmental Matters: The term "Property" shall mean the Bayshore Drive Frontage. The terra "Hazardous Materials" shall mean and include without limitation, any substance, which is or contains (A) any "hazardous substance" as now or hereafter defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C., Section 9601 et seq.) ("CERCLA") or any regulations promulgated under or pursuant to CERCLA; (B) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C., Section 6901 et seq.); (C) any substance regulated by the Toxic Substances Control Act (15 U.S.C., Section 2601 et. Seq.); (D) gasoline, diesel fuel, or other petroleum hydrocarbons; (E) asbestos and asbestos containing materials, in any fozun, whether friable or non -friable; (F) polychlorinated biphenyls; and (G) any additional substances or material which: (i) is now or hereafter classified or considered to be hazardous or toxic under Environmental Requirements as hereinafter defined; (ii) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (iii) would constitute a trespass if it emanated or migrated from the Property. The tem«i "Environmental Requirements" shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees, now or hereafter enacted, promulgated, or amended of the United States, the State of Florida, Miami - Dade County, the City of Miami, or any other political subdivision, agency or instrumentality exercising jurisdiction over the Seller or the Purchaser, the Property, or the use of the Property, relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the environment (including, without limitation, ambient air, surface water, groundwater, land or soil). (b) Inspection Period: Purchaser, its employees, agents, consultants and contractors shall have a period of three (3) months from the Effective Date (the "Investigation Period") in which to undertake at Purchaser's expense, such physical inspections and other investigations of and concerning the Property. Said inspections may include, but are not limited to surveys, soil borings, percolation, engineering studies, environmental tests and studies and other tests as Purchaser considers necessary for Purchaser and his consultants to review and evaluate the physical characteristics of the Property and to perform certain work or inspections in connection with such evaluation (the "Environmental Inspection") after giving the Seller reasonable notice prior to each test performed. The Purchaser, at its sole option, may extend the Investigation Period for an additional two (2) months if based upon the results of the testing, additional testing is warranted. For the purpose of conducting the Environmental Inspection, Seller hereby grants to Purchaser and its consultants and agents or assigns, full right of entry upon the Property during the Inspection Period through the closing date. The right of access herein granted shall be exercised and used by Purchaser, its employees, agents, representatives and contractors in such a manner as not to cause any material damage or destruction of any nature whatsoever to, or interruption of the use of the Property by the Seller, its employees, officers, agents and tenants. (c) Inspection Indemnity, Insurance and Releases: Notwithstanding anything contained in this Agreement to the contrary, as consideration for the Seller granting a continuing right of entry, the Purchaser hereby specifically agrees to: (i) immediately pay or cause to be removed any liens filed against the Property as a result of any actions taken by or on behalf of Purchaser in connection with the inspection of the Property; (ii) immediately repair and restore the Property to its condition existing immediately prior to the Inspection Period; and (iii) to the extent permitted, and subject to the limitations afforded governmental agencies by law, indemnify, defend and hold harmless Seller, its employees, officers and agents, from and against all claims, damages or losses incurred to the Property, or anyone on the Property as a result of the actions taken by the Purchaser, any of its employees, agents, representatives or contractors, with respect to the inspection of the Property, provided, however, Purchaser shall not be liable for the negligence or misconduct of Seller, its employees, officers and agents, or anyone employed by any of them. Prior to Purchaser entering upon the Property for purposes of commencement of the Environmental Inspection, Purchaser shall furnish to Seller the policy or policies of insurance or certificates of insurance, protecting the Purchaser, during the course of such testing, against all claims for personal injury and property damage arising out of or related to the activities undertaken by the Purchaser, its agents, employees, consultants and contractors, or anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable, upon the Property or in connection with the Environmental Inspection. (d) Remedies/Right of Termination: If Purchaser discovers, during the Investigation Period, the presence of Hazardous Materials on the Property in levels or concentrations which exceed the standards set forth by DERM, the State or the Federal Government (an "Environmental Condition"), prior to the end of the inspection Period, Purchaser shall notify Seller in writing and deliver to Seller copies of all written reports concerning such Environmental Condition (the "Environmental Notice"), together with a cost estimate prepared by Purchaser's environmental consultant setting forth the estimated cost of the remediation of the Environmental Condition (the "Cost Estimate"). The Purchaser shall have fifteen (15) business days from the date the Seller receives the Environmental Notice and the Cost Estirnate to terminate this Agreement, by giving Seller written notice of its decision to do so. whereupon (i) all property data and all studies, analysis, reports and plans respecting the Property delivered by Seller to Purchaser or prepared by or on behalf of the Purchaser shall be delivered by Purchaser to the Seller; and then (ii) except as otherwise provided in this Agreement, the parties shall thereupon be relieved of any and all further responsibilities and obligations under this Agreement. In the event Purchaser does not elect to terminate this Agreement, as herein provided, then Purchaser shall proceed to Closing and the Purchase Price shall be automatically reduced by an amount equal to the Cost Estimate, but in no event shall the purchase price be reduced by more than ten percent (10%).. (e) Waiver and Release: In the event that Purchaser does not elect to cancel this Agreeinent, Purchaser acknowledges and agrees that the sale of the Property as provided for herein is made on an "AS 1S" condition and basis with all faults. (1) Seller's Representations Regarding Lack of Knowledge of Environmental Conditions: Seller represents and warrants to Purchaser that, to the best of Seller's knowledge but without making independent inspection or inquiry: (i) The Property is presently free from contamination by Hazardous Materials, and the Property and the activities conducted thereon do not pose any significant hazard to human health or the environment or violate any applicable Environmental Laws. There is no evidence of any existing release of Hazardous Materials at the Property. (ii) There has been no generation, treatment or storage of any Hazardous Materials at the Property nor any activity at the Property which could have produced Hazardous Materials. (iii) There are no surface impoundments, lagoons, waste piles, landfills, injection wells, underground storage areas, tanks, storage vessels, drums, containers or other man-made facilities which may have accommodated Hazardous Materials on the Property. Neither Seller nor any third persons have stored, placed, buried or released Hazardous Materials on the Property, including the soil, surface water and ground water. (iv) There has been no treatment, storage or release of any Hazardous Materials on land adjacent or near to the Property which may constitute a risk of contamination of the Property or surface or ground water flowing to the Property. (v) No inspection, audit, inquiry or other investigation has been or is being conducted by any governmental agency or other third person with respect to the presence or discharge of Hazardous Materials at the Property or the quality of the air, or surface or subsurface conditions at the Property. Seller has received no notice that any such inspection, audit, inquiry or investigation is pending or proposed, nor has Seller or any previous owner of the Property received any warning notice, notice of violation, administrative complaint, judicial complaint or other formal or infoiuial notice alleging that Hazardous Materials have been stored or released at the Property or that conditions on the Property are in violation of any Environmental Laws. 4 t_ TITLE EVIDENCE, SELLER'S RIGHT TO INGRESS, EGRESS AND UTILITY A.CCESS AND SURVEY Title to the Bayshore Drive Frontage to be conveyed to Purchaser shall be subject to a forty-eight foot (48') wide perpetual easement for ingress and egress for pedestrians and vehicular traffic across the Bayshore Drive Frontage to allow access from Seller's Property to South Bayshore Drive and a perpetual easement for underground connection of Seller's Property to utilities. The center line of the easement for ingress and egress shall be 84.58' northeasterly from and parallel to the southwesterly line of lot 19. Seller may from time to time relocate the easement for ingress and egress and/or divide the easement into two easements twenty-four (24'), provided it pays all costs associated with such relocation including any repairs or re -construction of City's improvements in the Bayshore Drive Frontage. Utility easements shall be as presently located. Within five (5) days of the Effective Date, Seller shall deliver to Purchaser such title policy(ies), title commitments, abstract of title, or other evidence of title and such survey(s) of the Property as Seller may have in its possession or of which it may have knowledge. Purchaser shall be responsible for obtaining, at its sole cost, (i) a commitment for title insurance, from a recognized title insurance company authorized to issue title insurance in the State of Florida, agreeing to insure Purchaser's title, free of all exceptions, except those that may be accepted by Purchaser, together with all corresponding title documents, and (ii) a survey of the Property, showing the Property to be free of encroachments or conditions that, in Purchaser's sole discretion, would affect its proposed use of the Property. Purchase shall have a period equal to the Inspection Period in which to obtain and examine the survey and the title commitment and submit to the Seller its objections (the "Title Defect"). Seller shall have a period of thirty (30) calendar days after its receipt of Purchaser's notice in which to cure the Title Defect. Seller shall use good faith efforts to cure any Title Defect. If Seller shall be unable to convey title to the Property according to provisions of this Agreement and/or cure the Title Defects, according to provisions of this Agreement, Purchaser may: (i) elect to accept such title that Seller may be able to convey, and the parties shall negotiate a reduction in the Purchase Price taking into consideration the estimated cost to cure such title defect; or (ii) terminate this Agreement. Upon such termination, this Agreement shall be null and void and the parties hereto shall be relieved of all further obligation and liability, and neither party shall have any further claims against the other. Seller's fence, hedge and gateposts (the "Boundary Features") located on the Bayshore Drive Frontage may remain after the closing and until such time as Purchaser gives Seller written notice of its intent to remove the Boundary Features (the "Notice"). Upon the giving of such Notice, Seller may at its own cost remove any of the Boundary Features within sixty (60) days of receiving the Notice. If Seller fails to remove any of the Boundary Features within sixty (60) days of receiving the Notice, Purchaser shall remove the remaining Boundary Features at its cost within one hundred and eighty (180) days after delivering the Notice. 6. CLOSING DATE Unless otherwise extended by other provisions of this Agreement, closing shall take place on the Effective Date of the Easement Agreement, at a mutually agreeable time (the "Closing") at the City of Miami, Department of Public Facilities located at 444 SW 2 Avenue, Suite 325, Miami, Florida or at such other location within the City of Miami that the Purchaser may designate in writing by affording a notice to Seller as provided herein. The parties may, subject to mutual written agreement, establish an earlier date or extend the date for Closing. 7. CLOSING DOCUMENTS (a) Seller's Closing Documents: At Closing, Seller shall execute and/or deliver to Purchaser the following documents, in form and substance acceptable to the Purchaser's City Attorney: (1) Statutory Warranty Deed; (2) A Closing Statement; (3) A Seller's Affidavit and a Non -Foreign Affidavit; (4) Evidence of compliance with the Conditions Precedent. (5) Such other documents as are necessary to fully authorize the sale of the Property and the execution of all closing documents; (6) An affidavit reaffirming the warranties and representations set forth herein and certifying compliance with all Conditions Precedent. (b) Purchaser's Closing Documents: At Closing, Purchaser shall execute and deliver to Seller the following: (1) (2) (3) Closing Statement; Such documents as are necessary to fully authorize the purchase of the Property and the execution of all closing documents; Such other documents as are necessary to authorize the purchase of the Property and the execution of all closing documents. (c) Other Contract Documents: Seller acknowledges that the property is being acquired by a governmental agency and that the transaction may be subject to certain federal, state and local requirements, which include reporting and disclosure of information. Seller agrees to comply with the public disclosure and inspection requirements under Chapter 119, Florida Statutes, disclosure of beneficial interests under Section 286.23, Florida Statutes, certification regarding conflict of interest under Chapter 112, Horida Statutes, Chapter 2 of the Miami City Code and §2-11-1 of the Miami -Dade County Code, certification regarding Public Entity Crimes under Section 287.133, Florida Statutes, and in connection therewith, Seller agrees to execute and deliver all documents required or requested by Purchaser or any other governmental authority, including , but not limited to : (1) Conflict of Interest and Non- Collusion Affidavit; and (2) Sworn Disclosure of Beneficial Interests in Seller (3) Seller is a partnership, limited partnership, corporation, or trust, and (4) Public Entity Crime Affidavit. 8. CLOSING COSTS AND ADJUSTMENTS At Closing, the following items shall be borne, adjusted, prorated or assumed by or between Seller and Purchaser as follows: (a) Adjustments and Prorations: (1) Certified/Pending Liens: Certified, confirmed and ratified governmental liens as of the Closing Date shall be paid by Seller. Pending liens as of the Closing Date shall be assumed by Purchaser. (2) Other Taxes, Expenses, Interest, Etc: Taxes, assessments, water and sewer charges, waste fee and fire protection charges, if applicable, shall be prorated. (3) Usual and Customary: Such other items that are usually and customarily pro -rated between purchasers and sellers of properties in the area where the Property is located. All pro -rations shall utilize the 365- day method. (b) Closing Costs: (1) Each party shall be responsible for its own attorney's fees incurred in connection with the Closing. (2) Seller shall pay all closing and recording costs incurred in connection with the sale and purchase of the Property described in this Agreement, including, but not limited to: (i) documentary stamps and surtax on the deed. all recording charges, filing fees payable in connection with the transfer of the Property hereunder, or required in order to clear title. 9. DEFAULT (a) If this transaction does not close as a result of default by Seller, Purchaser, in addition to all other remedies available at law or in equity, shall have the right to: (i) terminate this Agreement; or (ii) waive any such conditions or defaults and to consummate the transactions contemplated by this Agreement in the same manner as if there had been no conditions or defaults and without any reduction in the Purchase Price and without any further claim against Seller. (b) If this transaction does not close as a result of default by Purchaser, Seller. as and for its sole and exclusive remedy, shall have the right to terminate this Agreement. Upon such termination, this Agreement shall be null and void and the parties hereto shall be relieved of all further obligation and liability, and neither party shall have any further claims against the other. In the event Purchaser has executed the Easement Agreement, upon termination of this Agreement under this section, the Easement Agreement shall be deemed automatically teiininated. (c) Neither party shall be entitled to exercise any remedy for a default by the other party, except failure to timely close, until (i) such party has delivered to the other notice of the default and (ii) a period of ten calendar (10) days from and after delivery of such notice has expired with the other party having failed to cure the default or diligently pursued remedy of the default. 10. RISK OF LOSS The Seller shall have all risk of loss or damage to the Property by fire or other casualty, or acts of God, until title to the Property is transferred to Purchaser on the Closing Date. 11. DESIGNATION OF REPRESENTATIVES Purchaser and Seller have appointed the following persons to be their respective representatives, to wit: On behalf of Purchaser: City of Miami Department of Public Facilities Laura Billberry, Director 444 SW 2 Avenue, 3rd Floor Miami FL 33130 Telephone No.: (305) 416-1452 err Behalf of Seller: Bruce Matheson, Commodore Biscayne Bay Yacht Club 2540 South Bayshore .Drive Miami, Florida 33143 Telephone No.: (305) 858-6303 Fax (305) 858-0489 Fax (305) 416-2156 With a copy to: Jorge L. Fernandez, City Attorney City of Miami 444 SW 2 Avenue, Suite 945 Miami, FL 33130 Fax (305)41.6-1802 12. NOTI.CES Charles C. Kline, Esq. White & Case LLP Wachovia Financial Center, Suite 4900 200 South Biscayne Blvd Miami, Florida 33131 Fax: (305) 358-6744 All notices or other communications which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to Seller and Purchaser at the address indicated herein. Such notice shall be deemed given on the day on which personally served; or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier: Purchaser: Seller: Joe Arriola, City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 Copies To: City of Miami Laura Billberry, Director Department of Public Facilities 444 SW 2 Avenue, 3rd Floor Miami, FL 33130 Jorge L. Fernandez City Attorney 444 SW 2 Avenue, Suite 945 Miami, FL 33130 Bruce Matheson, Commodore Biscayne Bay Yacht Club 2540 South Bayshore Drive Miami, Florida 33143 Telephone No.: (305) 858-6303 Fax (305) 858-0489 Charles C. Kline, Esq. White & Case LLP Wachovia Financial Center, Suite 4900 200 South Biscayne Blvd Miami, Florida 33131 Fax: (305) 358-6744 13. CAPTIONS AND HEADINGS The Section headings or captions appearing in this Agreement are for convenience only, are not part of this Agreement, and are not to be considered in interpreting this Agreement. 14. BINDING EFFECT This Agreement shall bind and inure to the benefit of the parties hereto and their successors in interest. Purchaser may assign or pledge this Agreement only with the prior written consent of the City Manager which consent may be withheld for any or no reason whatsoever. 15. GOVERNING LAW This Agreement shall be governed according to the laws of the State of Florida and venue shall be in Miami- Dade County, Florida. 16. AWARD OF AGREEMENT Seller represents and warrants that it has not employed or retained any person employed by the Purchaser to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by the Purchaser any fee, commission percentage, brokerage fee, or gift for the award of this Agreement. 17. CONFLICT OF INTEREST The Seller covenants that no person under its employ who presently exercises any functions or responsibilities in connection with purchase and sale of the Property has any personal financial interest, direct or indirect, in this Agreement, except for the interest of the Seller in the sale of the Property. The Seller is aware of the conflict of interest laws of the City of Miami (City of Miami Code Chapter 2, Article V), Dade County, Florida (Dade County Code Section 2-11-1) and the State of Florida (Chapter 112, Florida Statutes), and agrees that it shall comply in all respects with the tel ins of said laws and any future amendments, as well as all other federal or state laws or regulations applicable to the transaction that is the subject matter of this Agreement. 18. COUNTERPARTS This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same Agreement. 19. WAIVERS No waiver by either party of any failure or refusal to comply with its obligations shall be deemed a waiver of any other or subsequent failure or refusal to comply. All remedies, rights, undertaking, obligations and agreement contained herein shall be cumulative and not mutually exclusive. SURVIVAL OF REPRESENTATIONSIWARRANTIES The representations and warranties contained in this Agreement shall survive the Closing and be enforceable by the respective parties until such time as extinguished by law. 21. PARTIAL INVALIDITY in the event that any provision of this Agreement shall be unenforceable in whole or in part, such provision shall be limited to the extent necessary to render same valid, or shall be excised from this Agreement, as circumstances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited, or as if said provision had not been included herein, as the case may be. 22. WAIVER OF TRIAL BY JURY The parties hereby knowingly, voluntarily and intentionally waive any right they may have to a trial by jury, waiver of right to file permissive counterclaims, or waiver of right to claim attorney's fees in respect to any litigation arising out of, under or in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This provision is a material inducement for Purchaser and Seller entering into this Agreement. 23. ENTIRE AGREEMENT This Agreement contains the entire agreement between the parties. There are no promises, agreements, undertakings, warranties or representations, oral or written, express or implied, between the parties other than as herein set forth. No amendment or modification of this Agreement shall be valid unless the same is in writing and signed by the City Manager on behalf of the Seller and the Purchaser. 24. TIME OF THE ESSENCE Time is of the essence of this Agreement and in the performance of all conditions and covenants to be performed or satisfied by either party hereto. Whenever a date specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be extended to the next succeeding business day. 25. EFFECTIVE DATE/TIME OF ACCEPTANCE The Effective Date of this Agreement shall be the date on which the last party to this Agreement executes said Agreement, the Agreement has been approved by the Miami City Commission and the Seller has been notified in writing of the approval. 26. AUTHORITY OF CITY MANAGER The Resolution of the City Commission of the Purchaser shall, in addition to approving the purchase contemplated under this Agreement, empower the City Manager of the Seller to modify this Agreement in the event a modification to this Agreement becomes necessary or desirable. 27. THIRD PARTY BENEFICIARIES Neither Seller nor the City intends to directly or indirectly benefit a third party by this Agreement. Accordingly, therefore the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against the County based upon this Agreement. 28. BROKER'S COMMISSION The Purchase and the Seller each represent and warrant that they have dealt with no broker and Seller agrees to indemnify, hold and save hamiless and defend the Purchaser, its officials and employees from any claim, demand or liability for commissions, alleged statutory or regulatory violations, breaches of contract relating to the subject matter of this Agreement, inclusive of court costs, principal, interest, made on behalf of a broker, tenant, third party beneficiary or other person or entity claiming by, through or under an agreement with the Seller. 29. ASSIGNMENT This Agreement, or any interest therein, shall not be assigned, transferred or otherwise encumbered under any circumstances by either party without the prior written consent of the other party, which may be unreasonably refused. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of the day and year first above written. ATTEST: By: 'V Print Name`. Title: "T0 77(J4 6- �lC "SELLER" rye By: Prin{Naarne: flAA Title:6 6C "BUYER" THE CITY OF M.I AMI, A municipal corporation of the State of Florida Attest: By: Priscilla Thompson, City Clerk Joe Arriola, City Manager Approved as to Form and Correctness • Jorge L. Fernandez, City Attorney Approved as to Insurance Requirements Risk Management Department EXHIBIT A TO PURCHASE AND SALE AGREEMENT Seller's Property Rhodes and New Biscayne Plat Book B, Page 16, Lot 17 Less the Northeasterly 50 feet and Lots 18 and 19 of Block 43, containing approximately 188,915 square feet more or less. EXHIBIT B TO PURCHASE AND SALE AGREEMENT Submerged Lands Beginning at the point of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Block 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, Page 16 of the Public Records of Dade Co., Florida and the U.S. Harbor and Pierhead Line thence run southeasterly along said extended lot line a distance of two hundred seventy (270) feet, more or less, to the North boundary of U.S. Coast Guard Restricted Area; thence run Easterly along said North boundary of U.S. Coast Guard Restricted Area, a distance of three hundred five (305) feet, more or less, to a point in the southeasterly extension of a line which is Forty-five (45) feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43, of aforesaid subdivision said point being three hundred seventy- eight (378) feet, more or less, Southeasterly of the U.S. Harbor and Pierhead Line; thence run Northwesterly along said extended line Forty-six (46) feet Southwesterly of and parallel to the Northeasterly line of said Lot 17, three hundred seventy-eight (378) feet, more or less, to its intersection with the U.S. Harbor and Pierhead Line; thence run Southwesterly along the U.S. Harbor and Pierhead Line two hundred seventy-seven {277) feet, more or less, to the point of beginning, said parcel containing 2 1/10 (2.10) acres more or less. Commencing at the point of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Block 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, at Page 16 of the Public Records of Dade Co., Florida with the U.S. Harbor and Pierhead Line; run southeasterly along said extended lot line a distance of 270 feet, more or less, to the north boundary of the U.S. Coast Guard Restricted Area, which is the point of beginning of the parcel herein described; thence continue southeasterly along said extended lot line for a distance of 206 feet; thence northwesterly parallel to the U.S. Harbor and Pierhead Line For a distance of 277 feet, more or less, to a point in the southeasterly extension of a line which is 45 feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43 of aforesaid subdivision, said point being 476 feet, southeasterly of the U.S. Harbor and Pierhead Line; thence northwesterly along said extended line parallel to the northeasterly line of said Lot 17 for a distance of 98 feet, more or less, to its intersection with the north boundary of the U.S. Coast Guard Restricted Area; thence westerly along said north boundary for a distance of 305 feet, more or less, to the point of beginning; Eying within the City of Miami, Dade County, Florida, and containing 1.0 acre, more or less. /314. EXHIBIT C TO PURCHASE AND SALE AGREEMENT Easement Agreement SUBMERGED LANDS EASEMENT AGREEMENT THIS EASEMENT AGREEMENT ("Agreement") is made as of , 2006 by THE CITY OF MIAMI, a municipal corporation of the State of Florida ("City"), to and for the benefit of BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation ("Grantee"). RECITALS A. The Grantee is the record title holder of approximately 4.3 acres of upland located at 2540 South Bayshore Drive, Miami, Florida (the "Dominant Estate"). B. The City is the record title holder of approximately 3.085 acres of submerged land lying adjacent to the Dominant Estate, as more particularly described in Exhibit "A" attached hereto (the "Servient Estate"); C. Grantee was formed in 1887 to promote and foster the sport of yachting. Grantee conducts regattas and boat races which attract participants and boats from various states and countries and conducts various programs to promote better understanding and responsible use of boats and marine resources. Since 1933, Grantee has conducted its operations on the Dominant Estate and pursuant to various agreements with the City has for many years maintained a system of docks and piers on portions of the Servient Estate. D. The City desires to acquire for public use approximately 6,104 square feet of the Dominant Estate located adjacent to South Bayshore Drive, as depicted in Exhibit "B" attached hereto (the "Public Area"). E. Simultaneously with the execution of this Agreement, Grantee has agreed to execute a purchase and sale agreement conveying the Public Area to the City (the "Purchase and Sale Agreement") as partial consideration for the City's grant of an easement to the Grantee on and over the Servient Estate as hereinafter described. 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 Grantee 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 Easement. City hereby grants to Grantee, its employees, members, agents, contractors, subcontractors, invitees and guests, an easement over, across and upon the Servient Estate, for the limited purpose of the construction, use, maintenance and repair of a system of docks and piers for the mooring of boats over, across and on the Servient Estate as an easement appurtenant to the Dominant Estate. Grantee is permitted to drive pilings, place pile caps, slabs, beams and rip rap, run utilities and take such other action as is reasonably necessary to construct and utilize a system of fixed or floating docks and piers, or a combination thereof, over and on the Servient Estate, and to maintain, and from time to time, to rebuild or reconfigure such system of docks and piers (the "Permitted Use"). The use of the docks and piers shall be limited to Grantee's members, invited guests and law enforcement. All construction and use of the docks and piers shall be done in compliance with the laws and regulations of all government agencies having jurisdiction over such docks and piers. 3. Term. This Agreement shall commence upon receiving State Approval according to conditions acceptable to the City and Grantee as set forth in Section 23 herein and the conveyance of the Public Area to the City (the "Effective Date"), and shall run with the land in perpetuity provided, however, that this easement shall automatically terminate and revert to City with the right of immediate possession and right of entry to the City, or its successors in interest, in the event Grantee: (a) assigns this easement; (b) conveys any interest in the Dominant Estate to a third party without the City's prior written consent (c) does not use the Servient Estate for the Permitted Use; (d) fails to maintain a non-profit status; or (e) abandons or discontinues the Permitted Use for thirty (30) days, except during times of repair, replacement or construction. 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. 4. Operations. The Grantee shall, at its sole cost and expense, make any and all improvements required for its use of the Servient Estate. The Grantee shall not encroach on the City's property beyond the boundaries of the Servient Estate. Should the Permitted Use of the Servient Estate be abandoned or discontinued by law or otherwise, said easement shall cease and revert with the right of immediate possession and right of entry to the City or its successors in interest. 5. Condition of the Property. Grantee accepts the Servient Estate "as -is", in its present condition and state of repair and without any representation by or on behalf of City, and agrees that City shall, under no circumstances, be liable for any latent, patent or other defects in the Servient Estate. Grantee. at its sole cost, shall maintain the Servient Estate in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. Grantee shall be responsible for all repairs and replacements to the Servient Estate required or caused by the use of any part thereof. 6. Expense and Maintenance Responsibilities. Grantee shall design, construct, install, maintain and repair any and all improvements required for the Permitted Use of the Servient Estate, including, but not limited to, all related infrastructure improvements and permitting costs, at Grantee's sole cost and expense (hereinafter "Improvements"). Grantee shall submit plans and specifications for such improvements to all governmental entities having jurisdiction over the improvements for their prior written approval. Additionally, such plans and specifications shall also be submitted to the City Manager for his prior written approval, which shall not be unreasonably withheld provided that such Improvements are in compliance with the terms of this Agreement. In the event of an emergency, Grantee may reasonably proceed to perform repair work and shall immediately notify the City of such work. Grantee shall keep the Servient Estate in a safe, sightly, good and functional condition during the term of this Agreement at Grantee's sole cost and expense. All work performed by or on behalf of Grantee shall be conducted in a lien -free manner and in accordance with Paragraph 7 hereof. Prior to commencement of construction, Grantee shall submit to the City Manager proof of funding andfor its financing plans. 7. Mechanics' Liens. Grantee shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Servient Estate by reason of work, labor, services or materials supplied to Grantee or anyone having a right to possession of the Servient Estate as a result of an agreement with Grantee acting, with or without Grantee's consent. Nothing in this Agreement shall be construed as constituting the request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Servient Estate nor as giving Grantee 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 Servient Estate. If any mechanics' lien shall at any time be filed against the Servient Estate by reason of work, labor services or materials supplied to Grantee, its officers, members, agents, employees, contractors or subcontractors, Grantee 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 Grantee shall not be required to pay or discharge any mechanics' lien within the thirty (30) day period, so long as Grantee 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's fees to be incurred in connection with it. If Grantee does not: i) cause a mechanics lien to be discharged of record within thirty (30) days after the date Grantee 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 Grantee shall be in default of this Agreement. 8, Utilities. Grantee shall pay for all utilities, including, but not limited to, electricity, water, stormwater fees, gas, telephone, garbage and sewage disposal used by Grantee during its occupancy of the Servient Estate pursuant to this Agreement, as welt as all costs for installation of any lines and equipment needed by Grantee, its officers, members, agents, invitees, employees, guests , contractors or subcontractors. Grantee, at its sole cost, shall install all utilities required for its use and install separate utility meters required thereby and shall be billed directly by the applicable utility company for such services. 9. Advertising. Grantee shall not permit any advertising signs to be placed either in the interior or upon the exterior of the Servient Estate without having first obtained the approval of the City Manager or his designee. Notwithstanding the foregoing, Grantee shall be permitted to place non-commercial signage which is usual and customary in a marina for the purpose of providing identification, safety and regulatory information. 10. Ownership of Improvements. As of the Effective Date and throughout the Term, title to all improvements on the Servient Estate shall be vested in Grantee, unless otherwise provided by other written agreement. 11. Removal of Property. In the event of termination of this Agreement and if the City so requires by written notice to Grantee, Grantee shall promptly remove ail personal property, fixtures and equipment and any buildings and other improvements constructed or caused to be constructed by Grantee on the Servient Estate within one hundred and eighty (180) days after termination of this Agreement. In the event Grantee fails to remove its personal property, equipment and fixtures, and any such Improvements so designated by the City from the Servient Estate within said one hundred and eighty (180) day period after the termination of this Agreement, said property shall be deemed abandoned and thereupon shall become the sole property of the City. The City, at its sole discretion and without liability, shall remove the same and Grantee shall reimburse the City for all reasonable expenses associated with such removal and disposal and the City shall have a lien on the Dominant Estate to secure Grantee's obligation to reimburse the City for such cost of removal. Any and all improvements made to the Servient Estate, other than those portions used by other parties not under Grantee's control, shall be done at the sole cost, expense and risk of Grantee. 12. Consideration. In consideration of the granting of this Agreement, Grantee shall convey to the City the Public Area at a sales price of Three Hundred and Ninety-six Thousand, Seven Hundred Sixty Dollars ($396,760) ($65 SF) and shalt pay to the City for the use of the Servient Estate Eight Hundred Eighty Thousand Dollars ($880,000). The Grantee shall procure a survey of the Servient Estate, which cost shall be split 50/50 between the City and Grantee. The City's 50% share shall be credited against the amounts due by Grantee to City. In the event the survey shows a difference of 10% or less in square footage, there shall be no adjustment to the consideration paid by Grantee for use of the Servient Estate. In the event the square footage is more than a 10% difference, up or down, the consideration shall be adjusted based on a rate of $6.55 SF. The purchase price for the Public Area, subject to the adjustments permitted in the Purchase and Sale Agreement, shall be deducted from the amount due from Grantee to the City and shall be paid on the Effective Date. 13. Compliance With Permits and Laws. In connection with the construction, maintenance and use of the Servient Estate, Grantee 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 Servient Estate, including, but not limited, to Chapter 713, F.S. Grantee, in connection with its use of the Servient Estate, shall comply with all laws which apply to its use of the Servient Estate, including to the extent applicable to Grantee the Americans with Disabilities Act ("ADA") and including to the extent applicable to Grantee all laws prohibiting discrimination. 14. Insurance. In connection with the Servient Estate, Grantee shall obtain and maintain or cause to obtained and maintained throughout the term of this Agreement the types and amounts of insurance coverages set forth in Exhibit C, attached hereto and incorporated herein by this reference. 15. Indemnity. Grantee shall indemnify, defend and save harmless City and City's successors, permitted assigns, officials, employees and agents (the "City Indemnified Parties") 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 relating to the Servient Estate, or in any way connected to the, construction, installation, maintenance and repairs which Grantee, its officers, members, agents, invitees, employees, guests, contractors or subcontractors perform or cause to be performed in the Servient Estate, and the use of the easements described herein, or arising out of or resulting from Grantee's failure to comply with the provisions of Section 24 and Grantee's obligation to maintain the public walkway improvements as provided in Section 41 (the "indemnified Matters"). In case any action or proceeding is brought against City by reason of any of the indemnified Matters, Grantee, upon sixty (60) days' written notice from City, shall, at its sole expense, resist or defend the action or proceeding by counsel reasonably satisfactory to City and pay for related attorney costs, court costs, damage awards, as well as satisfy any other remedies demanded by the court. 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 Grantee or City with respect to the claim or matter in question; and (it) City shall not, without Grantee's prior written consent, settle any such action or proceeding or interfere with Grantee's defense or prosecution of such action or proceeding. The provisions of this Section shall survive the expiration or termination of this Agreement. Nothing contained in this Section 15 shall create a right to indemnity in favor of the City Indemnified Parties for or on account of their own gross negligence or willful misconduct. 16. 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 Grantee, its officers, members, agents, employees, contractors, sub -contractors, assigns, invitees or patrons occurring in or about the Servient Estate 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 Servient Estate, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures on the Servient Estate, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Servient Estate or any person whomsoever whether such damage or injury results from conditions arising upon the Servient Estate or upon other portions of the Servient Estate or from other sources. Grantee 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. Nothing contained in this Section 16 shall create a right to indemnity in favor of the City Indemnified Parties for or on account of their own gross negligence or willful misconduct. Grantee acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Servient Estate, Grantee, on behalf of itself, its agents, invitees, employees, guests, contractors, and sub -contractors 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 Grantee's use of the Servient Estate. Grantee further agrees that it shall be responsible for providing its own security. 17. Safety. Grantee and each of its employees, agents, officers, contractors and subcontractors shall allow the City inspectors, agents or representatives the ability to monitor compliance on the Servient Estate with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections, the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Grantee and each of its employees, agents, officers, contractors and subcontractors shall have no recourse against the City, its agents or representatives from the occurrence, non- occurrence or result of such inspection(s). Simultaneously with the Effective Date, Grantee shall contact the City's Risk Management Department Safety Unit in writing to coordinate such inspection(s). 18. Taxes. Grantee covenants and agrees to pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Servient Estate and improvements, property, sales, rents or operations thereon, or against personal property of any kind, owned by or placed in, upon or about the Servient Estate, by Grantee, including, but not limited to sales, ad valorem taxes, fire fees and parking surcharges. Payment thereof shall commence with and shall include taxes, if any assessed for then current year. Grantee further covenants and agrees to pay all of the said taxes, if any, lawfully assessed, on such dates as they become due and payable. In the event Grantee fails to pay the real property taxes by April 1 S` of each year, Grantee shall be responsible to pay the City a late fee equal to 5% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the City will incur by reason of late payment by Grantee. Acceptance of such late charge by the City shall not constitute a waiver of Grantee's default with respect to such delinquent amount, nor prevent the City from exercising any of its other rights and remedies at law or in equity. Any real property taxes not paid by April 15t of each year and actually paid by the City shall bear interest at the rate of 18% per annum, commencing on April 1 and shall constitute a lien on the Dominant Estate to secure Grantee's obligation to pay such taxes. Grantee shall pay such interest to the City. Payment of such interest shall not excuse or cure any default by Grantee under this Agreement. in the event that Grantee becomes delinquent in the payment of real property taxes levied on the Servient Estate, the City, upon providing written notice to Grantee, may require either of the following, at its sole option: (1) Grantee to escrow monthly to the City an amount equal to one -twelfth of the amount billed for such ad valorem taxes, without discounts, during the previous calendar year plus 5% to cover estimated annual tax increases. Said amount shall be paid on the first day of each month. In the event the amount escrowed is not sufficient to pay the full amount of taxes due, Grantee shall pay the difference to the City for remittance to the County within fifteen (15) days of receipt of notice from the City of the amount of such deficiency. In the event the amount of monies escrowed are in excess of the taxes due, the balance shall be applied to the following year's tax payment; or (2) Grantee shall enroll in the Dade County Ad Valorem Tax Payment Plan, Failure of Grantee to pay the rea! property taxes levied on the Servient Estate when due and any late fees in connection therewith, to pay a monthly real estate tax escrow to the City, or to enroll in the Dade County Ad Valorem Tax Payment Plan as aforesaid shall constitute an event(s) of default under this Agreement. Notwithstanding the foregoing, Grantee shall have the right to appeal or contest the imposition of any taxes and/or the assessed values in accordance with applicable law. 19. Eminent Domain. In the event the whole or any part of the Servient Estate is taken by right of eminent domain or any similar authority of law (a "Taking"), the entire award for the value of the land and improvements so taken shall be apportioned between Grantee and the City in proportion to the respective values of Grantee's Easement and the City's interest in the Servient Estate. 20. Compliance with Environmental Laws. Grantee represents and warrants that during the term of this Agreement, it will not use or employ the Servient Estate, 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 the Servient Estate or City -owned property in violation of any applicable environmental laws. Notwithstanding the foregoing, Grantee may handle, transport, store or dispose of Hazardous Materials as necessary for Grantee's Permitted Use of the Servient Estate as long as such handling, transportation, storage and disposal is performed in strict compliance with all applicable laws and regulations. Grantee hereby indemnifies and holds harmless the City and their respective officers, employees and agents, from and against all actions and liabilities relating to Grantee's handling, transportation, storage and disposal of Hazardous Materials on or about the Servient Estate or City -owned property. The requirements of this paragraph shall survive the cancellation, revocation, termination or expiration of this Agreement. 21. Hazardous Materials. in connection with its activities on the Servient Estate, Grantee 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, Grantee 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 Servient Estate or required for Grantee's use of any hazardous materials in or about the Servient Estate 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, Grantee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Servient Estate by Grantee or at Grantee's direction, to be removed from the Servient Estate and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. Grantee may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and property 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. 4.74n-A 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 Servient Estate; (ii) To the best of its knowledge, there are no Hazardous Materials presently existing on the Servient Estate. 22. Default and Termination. If Grantee in any manner defaults in the performance of this Agreement, the City Manager may give written notice to Grantee of such default. If Grantee fails to cure such default within ninety (90) days after written notice is given to Grantee (or such longer period as may be reasonably necessary to cure such default, provided Grantee promptly commences, and diligently continues, to cure the default) the City may elect to: (i) terminate this Agreement for a material breach adversely affecting the City's interest in the Servient Estate or (ii) pursue any other remedy available at taw or in equity. In the event the material breach consists of or involves a violation of Section 13 asserted by a non -governmental third party, the Easement rnay not be terminated unless Grantee fails to comply with or satisfy a judgment finding Grantee in violation of paragraph 13. 23. State Approval. Grantee acknowledges that the Servient Estate is subject to certain restrictions contained in Deed No. 19448 made by the Trustees of the Internal Improvement Fund of the State of Florida to the City dated February 24, 1949. Grantee and City will fully cooperate and work together utilizing best efforts and diligence in order to obtain a finding of compliance with the deed restriction or a waiver of deed restriction if a finding of compliance cannot be obtained from the State of Florida Board of Trustees of the Internal Improvement Trust Fund. The Effective Date of this Agreement is subject to, among other things, the City obtaining the approval of the Trustees of the internal Improvement Fund of the State of Florida (the "State Approval"), for the use of the Servient Estate as set forth in this Agreement. Should the State of Florida require the payment of any fee or other consideration for the State Approval, the City and Grantee agree to negotiate a mutually acceptable payment of the fees. In the event the State Approval is not obtained within eighteen (18) months from the execution of this Agreement, then this Agreement shall be null and void ab initio. 24. Public Purpose. Grantee, at its sole cost, agrees to provide, or cause to be provided, during the months of November and January, the cleanup of the island located easterly of the Servient Estate as depicted in Exhibit D attached hereto. Cleanup shall consist of removing and disposing of all trash and small debris weighing less than ten (10) pounds that may be located on the island. This obligation shall be limited solely to the pick up and removal of trash and litter that can be picked easily up by hand. The Grantee shall have no obligation to remove and dispose of any dangerous, hazardous or toxic materials, jetsam, flotsam, storm debris, derelict vessels or parts thereof or any other debris weighing in excess of ten (10) pounds, individually. Grantee covenants to: (i) continue to sponsor and conduct, either individually or in concert with other organizations, at least three (3) sailing races or regattas each year which attract participants from other states or countries, (ii) to continue to conduct programs to promote better understanding and responsible use of boats and marine resources, (iii) provide the Florida Marine Patrol or other law enforcement agency with the right to use one of the 32 foot boat slips to be constructed on the Servient Estate for storage of a patrol boat at no charge and (iv) contribute one half the cost to place a navigation marker and light at the end of the "seaplane" channel. 25. Title. Grantee may, at its sole cost and expense, obtain title insurance on Grantee's interest in the Servient Estate. The City shall cooperate with Grantee and reasonably assist in curing any title defects which may be disclosed by a title search or survey. Nothing contained herein shall require the City to cure any title defects other than those created by the City nor shall City be required to bring any action or to incur any expense to cure any title defect. Grantee agrees to perform all necessary title work that it elects to perform in a timely fashion on 4/44t1 or before the Effective Date. Grantee's execution of this Agreement and payment of the consideration to the City shall be conclusive evidence that Grantee has accepted title to the easement contemplated hereunder in its then "AS IS" condition 26. Frustration of Purpose. If within 24 months following the Effective Date, Grantee is unable to obtain the permits necessary to construct the improvements necessary to construct and operate a marina similar to the one currently operated by Grantee in the Servient Estate, then Grantee may cancel this Agreement and return the Servient Estate to the City. In such event, the City shall return the consideration paid less a termination fee of Five Thousand Five Hundred Dollars and 00/100 ($5,500) per month for each month after the Effective Date to the date of surrender of possession. Grantee shall, if so requested by the City, remove existing docks at its own expense, fess any reduction due Grantee by the City. 27. Notices. All notices and other communications under this Agreement shall be in writing and shall be given by certified mail, return receipt requested, hand delivery or courier ("Notice"( addressed to the City or Grantee as may be applicable, at: City: City of Miami City Manager 3500 Pan American Drive Miami, FL 33130 with a copy to City of Miami City Attorney 444 S.W. 2 Avenue, Suite 945 Miami, FL 33130 City of Miami Director, Public Facilities Asset Management Division 444 S.W. 2n3 Avenue, 3'd Floor Miami, FL 33130 Grantee: Biscayne Bay Yacht Club Attn: Commodore 2540 S Bayshore Drive Miami, FL 33133 With a copy to Charles C. Kline, Esq. White & Case LLP Wachovia Financial Center, Suite 4900 200 South Biscayne Blvd. Miami, Florida 33131 or to such other address as either party may designate from time to time. If Notice is given by hand delivery or courier, Notice shall be deemed served on the date of such delivery, If the Notice is sent via certified mail, Notice shall be deemed served five (5) business days after the date the Notice is deposited with the U.S. Post Office. 28. Assignment; Binding Effect. This Agreement may not be assigned, pledged, transferred or encumbered without the express written approval of the City Manager, which approval may be withheld or conditioned in his sole discretion. This Agreement shall be binding upon and inure to the benefit of City and Grantee and their respective successors and permitted assigns. Any transferee approved by the City of any part of the Servient Estate shall automatically be deemed, by acceptance of the title to any portion of the Servient Estate, as the case may be, to have assumed all obligations of this Agreement. 29. 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. 30. Non -Dedication, Nothing contained in this Agreement shall be deemed to be a gift or dedication of Grantor's Fee Simple interest in the Servient Estate to Grantee, 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. 31. 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. 32. 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 Servient Estate and the improvements thereon. 33. Attorneys' Fees. In the event it becomes necessary for either party to institute legal proceedings to enforce the provisions of this Agreement, each party shall bear its own attorneys' fees through all trial and appellate levels. 34. 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 easement hereby granted by the City to Grantee, 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 Grantee to enter into this Agreement. 35. 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. 36, No Partnership. 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. 37. 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. 38. 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. 39. 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. 40. Recording. Unless otherwise required by the State of Florida, the Parties agree that this Easement Agreement shall not be recorded, but that a memorandum of easement in the form of Exhibit F shall be recorded at the Grantee's expense. 41. Maintenance of the Public Area. Grantee agrees to participate with the City in the planning of the improvements and landscaping to be constructed by the City on the Public Area between the Dominant Estate and South Bayshore Drive (the "Public Area Improvements"). Once the Public Area improvements have been installed by the City, Grantee, at its sole cost, shall maintain the landscaping and shall clean up litter and debris in the Public Area on a routine basis and in a manner consistent with Grantee's maintenance of the Dominant Estate. IN WITNESS WHEREOF, City and Grantee have executed this Submerged Lands Easement Agreement as of the date set forth above. CITY OF MIAMI, a Municipal Corporation of the ATTEST: State of Florida By: By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: Risk Management Department STATE OF COUNTY OF By Jorge L. Fernandez City Attorney The foregoing instrument was acknowledged before me this day of 2006, by , as the City Manager of the City of Miami, a municipal corporation of the State of Florida, on behalf of the City. Personally Known Produced Identification Type of Identification Produced or Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires 4e"/ BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation ATTEST: eZ•?t- (1:44 At/_ . Print Name & Tit e Print Name & Title STATE OF I'Z,OIL 764 ) COUNTY OF T foregoiin tru ent was ack� wledged before me thisSY day of 2006, by /C e (j /4 15' \as the C`"et j 2(; , of Biscayne Bay Yac rf Club, a Florida non-profit corporation. Personally Known if or Produced Identification Type of Identification Produced y Title: Not Serial No., if an My on LLENLOC P oLry PubiiC -State of Florid° My Comm ision Expires Nov 20. 2C05 Commission 4' DD15746 Bonded By National Notary Assn, Exhibit A SERVIENT ESTATE Beginning at the point of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Block 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, Page 16 of the Public Records of Dade Co., Florida and the U.S. Harbor and Pierhead Line thence run southeasterly along said extended lot line a distance of two hundred seventy (270) feet. more or less, to the North boundary of U.S. Coast Guard Restricted Area; thence run Easterly along said North boundary of U.S. Coast Guard Restricted Area, a distance of three hundred five (305) feet, more or less, to a point in the southeasterly extension of a line which is Forty-five (45) feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43, of aforesaid subdivision said point being three hundred seventy-eight (378) feet, more or less, Southeasterly of the U.S. Harbor and Pierhead Line; thence run Northwesterly along said extended line Forty-six (46) feet Southwesterly of and parallel to the Northeasterly line of said Lot 17, three hundred seventy-eight (378) feet, more or less, to its intersection with the U.S. Harbor and Pierhead Line; thence run Southwesterly along the U.S. Harbor and Pierhead Line two hundred seventy-seven (277) feet, more or less, to the point of beginning, said parcel containing 2 1/10 (2.10) acres more or less. Commencing at the point of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Block 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Piet Book B, at Page 16 of the Public Records of Dade Co., Florida with the U.S. Harbor and Pierhead Line; run southeasterly along said extended lot line a distance of 270 feet, more or less, to the north boundary of the U.S. Coast Guard Restricted Area, which is the point of beginning of the parcel herein described; thence continue southeasterly along said extended lot line for a distance of 206 feet; thence northwesterly parallel to the U.S. Harbor and Pierhead Line For a distance of 277 feet, more or less. to a point in the southeasterly extension of a line which is 45 feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43 of aforesaid subdivision, said point being 476 feet, southeasterly of the U.S. Harbor and Pierhead Line; thence northwesterly along said extended line parallel to the northeasterly line of said Lot 17 for a distance of 98 feet, more or less, to its intersection with the north boundary of the U.S. Coast Guard Restricted Area; thence westerly along said north boundary for a distance of 305 feet, more or less, to the point of beginning; lying within the City of Miami, Dade County, Florida, and containing 1 .0 acre, more or less. , • • t'e 1 „, • t t:t • • - - tr 4! SUBMERGED LAND 1 SERVIENT ESTATE OIC.4',V „IA ?AS 8E A OMAN A SSOCNC ti y tit AVX 4.1.4.61.1 FLOID4 ccii5,tyy yy.tiNt.yoRy 6(NI ClorrEtt4i S.PinA 51.11Pvi fo,G cpsl,t4r/v1 5.47 .raCHT Clue The Servient Estate will be surveyed and if necessary, the legal description thereof will be adjusted to conform to the dimensions on the survey. Exhibit B PUBLIC AREA The Northwesterly 22 feet of the following described property abutting on South Bayshore Drive: RHODES AND NEW BISC PB B-16 LOT 17 LESS NEL5OFT & LOTS 18 AND 19 BLK 43 LOT SIZE 188915 SQ FT Exhibit C INSURANCE REQUIREMENTS Grantee agrees to have the following policies of insurance in effect and will provide duly authorized certificates of insurance to the Risk Manager for the City of Miami to confirm the existence of such policies of insurance to gain physical access to the parcel(s) of land owned by the City of Miami which are described in this Agreement. Such policies of insurance are to be in effect no later than the date of physical access to such parcels of land by Grantee, its contractors and subcontractors pursuant to this Agreement, except as otherwise noted in this Agreement. 1. Commercial General Liability subject to limits and endorsements as shown below: A. Limits of Liability: Bodily injury and property damage liability each occurrence: $1,000,000 General aggregate limit: $2,000,000 Products/completed operations: $1,000,000 Personal and advertising injury: $1,000,000 B. Endorsements required: City of Miami included as additional insured Employees included as insured Independent contractor's coverage Waiver of subrogation Explosion, Collapse and underground hazard II. Business Automobile Liability A. Limits of Liability (*) Bodily injury and property damage liability combined single limit Any auto, including hired, borrowed, or non -owned autos any one accident: $1,000,000 B. Endorsements required City of Miami included as an additional insured 1I1. Workers Compensation Limits of liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V. Marine Operators Legal Liability A. Limits of Liability Each Occurrence $1,000,000 Aggregate $1,000,000 Insurance Requirements for Construction of Docks (by General Contractor): Commercial General Liability subject to limits and endorsements as shown below: A. Limits of Liability Bodily Injury and Property Damage Liabil Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury B. Endorsements Required y $1,000,000 $ 2,000,000 $ 1,000,000 $1,000,000 City of Miami included as an Additional Insured Employees included as insured Independent Contractors Coverage Contractual Liability Waiver of Subrogation Premises/Operations Explosion, Coltapse and Underground Hazard Loading and Unloading !I. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured HI. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV, Employer's Liability A. Limits of Liability $100.000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 1,000,000 Aggregate $ 1,000,000 VI. Owners & Contractor's Protective Each Occurrence General Aggregate $1,000,000 $1,000,000 The City's Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Grantee. The Grantee shall provide any other insurance or security reasonably required by the City. The above policies shall provide the City of Miami with written notice of cancellation or materiaf change from the insurer not less than (30) days prior to any such cancellation or material change. 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. Bests 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. Notwithstanding the foregoing, Grantee may cause its independent contractors to provide some or all of the foregoing insurance coverages, and to the extent that such independent contractors carry such coverages, Grantee shall not be required to carry such coverages, so long as the coverages obtained by Grantee and such independent contractors together satisfy the requirements of this Agreement. Arni-1 Exhibit D .......... ... ... Spoil Island Exhibit E GRANTEE CORPORATE RESOLUTION (To be included prior to Execution) EXHIBIT F MEMORANDUM OF EASEMENT This instrument was prepared by: Charles C. Kline, Esq White & Case, LLP Wachovia Financial Center, Suite 4900 200 South Biscayne Blvd. Miami, Florida 33131 OFFICE FOR USE BY RECORDING MEMORANDUM OF EASEMENT AGREEMENT This Memorandum of Easement Agreement is entered into on 200__, by THE CITY OF MIAMI, a municipal corporation of the State of Florida, (hereinafter referred to as "City" or "Grantor") and I3ISCAYNE BAY YACHT CLUB, a Florida non-profit corporation (hereinafter referred to as "Grantee"). 1. City and Grantee entered into a SUBMERGED LANDS EASEMENT AGREEMENT ("Agreement") dated as of 200 , for the purpose of Grantee constructing, maintaining and operating a marina, providing dockage, to drive pilings, place pile caps, slabs, beams and rip rap, run utilities and take such other action as is reasonably necessary to construct and utilize a system of fixed or floating docks and piers, or a combination thereof, over and on the Servient Estate and to maintain and from time to time, to rebuild or reconfigure such system of docks and piers. All of the foregoing is set forth in the Easement Agreement. 2. The term of the Easement is perpetual unless earlier terl<unated for cause as set forth therein. 3. The Servient Estate that is the subject of the Easement Agreement is described in Exhibit "A" annexed hereto. . 4. Copies of the Easement Agreement shall be available from the City of .Miami, Department of Public Facilities, 444 SW 2nd Avenue, 3rd Floor, Miami, Florida 33130. ,fij IN WITNESS WHEREOF, the parties have executed this Memorandum of Easement Agreement as of the day and year first written above. Signed, Sealed and Delivered in our Presence: Print Name: Print Name: ATTEST: .PRISCILLA THOMPSON City Clerk THE CITY OF INIIAM!, a municipal corporation o By: JOE ARRIOLA, City Manger APPROVED AS TO FORM AND CORRECTNESS: JORGE L. FERNANDEZ City Attorney APPROVED AS TO INSURANCE REQUIREMENTS: Risk Management Print Name: Print Name: BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation By: 6-71C' 5— BRUCE,. p �IATHESON, Commodore STATE OF FLORIDA COUNTY OF MIAMI-DADE: THIS INSTRUMENT WAS ACKNOWLEDGED before me this day of , 20 , by JOE ARRIOLA, as City Manager of THE CITY OF MIAMI, a municipal corporation of the State of Florida. He is personally known to me or produced as identification and did not take an oath. Print Name: Notary Public, State of Florida .My Commission Expires: STATE OF FLORIDA COUNTY OF MIAMI-DADE: THIS INSTRUMENT WAS ACKNOWLEDGED before me this day of , 20by BRUCE M. MATHESON, as Commodore of BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation. He is personally known to me or produced as identification and did not take an oath. Pant W me Notar Public, State of Florida My Commission Expires: .t IIi555� 0C264,70 MARY ELLEN LO CURTO Notary Public - State at Florida My Commission Exphes Nov 2OE 2036 `o= Commission tt 00157461 Bonded By Notional Notary Assn. Exhibit "A" LEGAL DESCRIPTION OF SERVIENT ESTATE Beginning at the paint of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Block 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, Page 16 of the Public Records of Dade Co., Florida and the U.S. Harbor and Pierhead Line; thence run southeasterly along said extended lot line a distance of two hundred seventy (270) feet, more or less, to the North boundary of U.S. Coast Guard Restricted Area; thence run Easterly along said North boundary of U.S. Coast Guard Restricted Area, a distance of three hundred five (305) feet, more or less, to a point in the southeasterly extension of a line which is Forty-five (45) feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43, of aforesaid subdivision said point being three hundred seventy-eight (378) feet, more or less, Southeasterly of the U.S. Harbor and Pierhead Line; thence run Northwesterly along said extended line Forty-six (46) feet Southwesterly of and parallel to the Northeasterly line of said Lot 17, three hundred seventy-eight (378) feet, more or less, to its intersection with the U.S. Harbor and Pierhead Line; thence run Southwesterly along the U.S. Harbor and Pierhead Line two hundred seventy-seven (277) feet, more or less, to the point of beginning, said parcel containing 2 1110 (2.10) acres more or less. Commencing at the paint of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Blocks 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, at Page 16 of the Public Records of Dade Co, Florida, with the U.S. Harbor and Pierhead Line; run southeasterly along said extended lot line a distance of 270 feet, more or less, to the north boundary of the U.S. Coast Guard Restricted Area, which is the point of beginning of the parcel herein described; thence continue southeasterly along said extended lot Tine for a distance of 206 feet; thence northwesterly parallel to the U.S. Harbor and Pierhead Line for a distance of 277 feet, more or less, to a point in the southeasterly extension of a line which is 45 feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43 of aforesaid subdivision, said point being 476 feet, southeasterly of the U,S. Harbor and Pierhead Line; thence northwesterly along said extended line parallel to the northeasterly line of said Lot 17 for a distance of 98 feet, more or less, to its intersection with the north boundary of the U.S. Coast Guard Restricted Area; thence westerly along said north boundary for a distance of 305 feet, more or less, to the point of beginning; lying within the City of Miami, Dade County, Florida, and containing 1.0 acre, more or less. .0? -r-r- " .• .r"rrr I eras SUBMERCF.D LAND SERVIENT ESTATE '21 4.•-• 3.085 ACRES - . ---orr7nr .95(4.,Ne 8,e JzimES 8EAON.LIN el ASSOC INC m At 5ortrrArrrPs Vic1.0".$ SCA uPvir rok cn'Arrif OA r rA CT The Servient Estate will be surveyed and if necessary, the legal description thereof will be adjusted to conform EXHIBIT D TO PURCHASE AND SALE AGREEMENT Legal Description of Property (to be attached upon receipt of survey) EXHIBIT" E TO PURCHASE AND SALE AGREEMENT Corporate Resolution (to be attached prior to execution) SUBMERGED LANDS EASEMENT AGREEMENT THIS EASEMENT AGREEMENT ("Agreement") is made as of , 2006 by THE CITY OF MIAM€, a municipal corporation of the State of Florida ("City"), to and for the benefit of BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation ("Grantee"). RECITALS A. The Grantee is the record title holder of approximately 4.3 acres of upland located at 2540 South Bayshore Drive, Miami, Florida (the "Dominant Estate"). B. The City is the record title holder of approximately 3.085 acres of submerged land lying adjacent to the Dominant Estate, as more particularly described in Exhibit "A" attached hereto (the "Servient Estate"), C. Grantee was formed in 1887 to promote and foster the sport of yachting. Grantee conducts regattas and boat races which attract participants and boats from various states and countries and conducts various programs to promote better understanding and responsible use of boats and marine resources. Since 1933, Grantee has conducted its operations on the Dominant Estate and pursuant to various agreements with the City has for many years maintained a system of docks and piers on portions of the Servient Estate. D. The City desires to acquire for public use approximately 6,104 square feet of the Dominant Estate located adjacent to South Bayshore Drive, as depicted in Exhibit "B" attached hereto (the "Public Area"). E. Simultaneously with the execution of this Agreement, Grantee has agreed to execute a purchase and sale agreement conveying the Public Area to the City (the "Purchase and Sale Agreement") as partial consideration for the City's grant of an easement to the Grantee on and over the Servient Estate as hereinafter described. 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 Grantee 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 Easement. City hereby grants to Grantee, its employees, members, agents, contractors, subcontractors, invitees and guests, an easement over, across and upon the Servient Estate, for the limited purpose of the construction, use, maintenance and repair of a system of docks and piers for the mooring of boats over, across and on the Servient Estate as an easement appurtenant to the Dominant Estate. Grantee is permitted to drive pilings, place pile caps, slabs, beams and rip rap, run utilities and take such other action as is reasonably necessary to construct and utilize a system of fixed or floating docks and piers, or a combination thereof, over and on the Servient Estate, and to maintain, and from time to time, to rebuild or reconfigure such system of docks and piers (the "Permitted Use"). The use of the docks and piers shall be limited to Grantee's members, invited guests and law enforcement. All construction .14e11-1,1 and use of the docks and piers shall be done in compliance with the laws and regulations of all government agencies having jurisdiction over such docks and piers. 3. Term. This Agreement shall commence upon receiving State Approval according to conditions acceptable to the City and Grantee as set forth in Section 23 herein and the conveyance of the Public Area to the City (the "Effective Date"), and shall run with the land in perpetuity provided, however, that this easement shall automatically terminate and revert to City with the right of immediate possession and right of entry to the City, or its successors in interest, in the event Grantee: (a) assigns this easement; (b) conveys any interest in the Dominant Estate to a third party without the City's prior written consent (c) does not use the Servient Estate for the Permitted Use; (d) fails to maintain a non-profit status; or (e) abandons or discontinues the Permitted Use for thirty (30) days, except during times of repair, replacement or construction. 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. 4. Operations. The Grantee shall, at its sole cost and expense, make any and all improvements required for its use of the Servient Estate. The Grantee shall not encroach on the City's property beyond the boundaries of the Servient Estate. Should the Permitted Use of the Servient Estate be abandoned or discontinued by law or otherwise, said easement shall cease and revert with the right of immediate possession and right of entry to the City or its successors in interest. 5. Condition of the Property. Grantee accepts the Servient Estate "as -is", in its present condition and state of repair and without any representation by or on behalf of City, and agrees that City shall, under no circumstances, be liable for any latent, patent or other defects in the Servient Estate. Grantee, at its sole cost, shall maintain the Servient Estate in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. Grantee shall be responsible for all repairs and replacements to the Servient Estate required or caused by the use of any part thereof. 6. Expense and Maintenance Responsibilities. Grantee shall design, construct, install, maintain and repair any and all improvements required for the Permitted Use of the Servient Estate, including, but not limited to, all related infrastructure improvements and permitting costs, at Grantee's sole cost and expense (hereinafter "Improvements"). Grantee shall submit plans and specifications for such Improvements to all governmental entities having jurisdiction over the improvements for their prior written approval. Additionally, such plans and specifications shall also be submitted to the City Manager for his prior written approval, which shall not be unreasonably withheld provided that such Improvements are in compliance with the terms of this Agreement. in the event of an emergency, Grantee may reasonably proceed to perform repair work and shelf immediately notify the City of such work. Grantee shall keep the Servient Estate in a safe, sightly, good and functional condition during the term of this Agreement at Grantee's sole cost and expense. Ali work performed by or on behalf of Grantee shall be conducted in a lien -free manner and in accordance with Paragraph 7 hereof, Prior to commencement of construction, Grantee shall submit to the City Manager proof of funding and/or its financing plans. 7. Mechanics' Liens, Grantee shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Servient Estate by reason of work, labor, services or materials supplied to Grantee or anyone having a right to possession of the Servient Estate as a result of an agreement with Grantee acting, with or without Grantee's consent. Nothing in this Agreement shall be construed as constituting the request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Servient Estate nor as giving Grantee 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 Servient Estate. If any mechanics' lien shall at any time be filed against the Servient Estate by reason of work, labor services or materials supplied to Grantee, its officers, members, agents, employees, contractors or subcontractors, Grantee 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 Grantee shall not be required to pay or discharge any mechanics' lien within the thirty (30) day period, so long as Grantee 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's fees to be incurred in connection with it. If Grantee does not: i) cause a mechanics lien to be discharged of record within thirty (30) days after the date Grantee 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 Grantee shall be in default of this Agreement. 8. Utilities. Grantee shall pay for all utilities, including, but not limited to, electricity, water, stormwater fees, gas, telephone, garbage and sewage disposal used by Grantee during its occupancy of the Servient Estate pursuant to this Agreement, as well as all costs for installation of any lines and equipment needed by Grantee, its officers, members, agents, invitees, employees, guests , contractors or subcontractors. Grantee, at its sole cost, shall install all utilities required for its use and install separate utility meters required thereby and shall be billed directly by the applicable utility company for such services. 9. Advertising. Grantee shall not permit any advertising signs to be placed either in the interior or upon the exterior of the Servient Estate without having first obtained the approval of the City Manager or his designee. Notwithstanding the foregoing, Grantee shall be permitted to place non-commercial signage which is usual and customary in a marina for the purpose of providing identification, safety and regulatory information. 10. Ownership of Improvements. As of the Effective Date and throughout the Term, title to all improvements on the Servient Estate shall be vested in Grantee, unless otherwise provided by other written agreement. 11. Removal of Property. In the event of termination of this Agreement and if the City so requires by written notice to Grantee, Grantee shall promptly remove all personal property, fixtures and equipment and any buildings and other improvements constructed or caused to be constructed by Grantee on the Servient Estate within one hundred and eighty (180) days after termination of this Agreement. In the event Grantee fails to remove its personal property, equipment and fixtures, and any such Improvements so designated by the City from the Servient Estate within said one hundred and eighty (180) day period after the termination of this Agreement, said property shall be deemed abandoned and thereupon shall become the sole property of the City. The City, at its sole discretion and without liability, shall remove the same and Grantee shall reimburse the City for all reasonable expenses associated with such removal and disposal and the City shall have a lien on the Dominant Estate to secure Grantee's obligation to reimburse the City for such cost of removal. Any and all improvements made to the Servient Estate, other than those portions used by other parties not under Grantee's control, shall be done at the sole cost, expense and risk of Grantee. 12. Consideration. In consideration of the granting of this Agreement, Grantee shall convey to the City the Public Area at a sales price of Three Hundred and Ninety-six Thousand, Seven Hundred Sixty Dollars ($396,760) ($65 SF) and shall pay to the City for the use of the Servient Estate Eight Hundred Eighty Thousand Dollars ($880,000). The Grantee shall procure a survey of the Servient Estate, which cost shall be split 50/50 between the City and Grantee. The City's 50% share shall be credited against the amounts due by Grantee to City. In the event the survey shows a difference of 10% or less in square footage, there shall be no adjustment to the consideration paid by Grantee for use of the Servient Estate. In the event the square footage is more than a 10% difference, up or down, the consideration shall be adjusted based on a rate of S6.55 SF. The purchase price for the Public Area, subject to the adjustments permitted in the Purchase and Sale Agreement, shall be deducted from the amount due from Grantee to the City and shall be paid on the Effective Date. 13. Compliance With Permits and Laws. In connection with the construction, maintenance and use of the Servient Estate, Grantee 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 Servient Estate, including, but not limited, to Chapter 713, F.S. Grantee, in connection with its use of the Servient Estate, shall comply with all laws which apply to its use of the Servient Estate, including to the extent applicable to Grantee the Americans with Disabilities Act ("ADA") and including to the extent applicable to Grantee all laws prohibiting discrimination. 14. Insurance. In connection with the Servient Estate, Grantee shall obtain and maintain or cause to obtained and maintained throughout the term of this Agreement the types and amounts of insurance coverages set forth in Exhibit C, attached hereto and incorporated herein by this reference. 15. Indemnity. Grantee shall indemnify, defend and save harmless City and City's successors, permitted assigns, officials, employees and agents (the "City Indemnified Parties") 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 relating to the Servient Estate, or in any way connected to the, construction, installation, maintenance and repairs which Grantee, its officers, members, agents, invitees, employees, guests, contractors or subcontractors perform or cause to be performed in the Servient Estate, and the use of the easements described herein, or arising out of or resulting from Grantee's failure to comply with the provisions of Section 24 and Grantee's obligation to maintain the public walkway improvements as provided in Section 41 (the "indemnified Matters"). In case any action or proceeding is brought against City by reason of any of the Indemnified Matters, Grantee, upon sixty (60) days' written notice from City, shall, at its sole expense, resist or defend the action or proceeding by counsel reasonably satisfactory to City and pay for related attorney costs, court costs, damage awards, as well as satisfy any other remedies demanded by the court. 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 Grantee or City with respect to the claim or matter in question; and (ii) City shall not, without Grantee's prior written consent, settle any such action or proceeding or interfere with Grantee's defense or prosecution of such action or proceeding. The provisions of this Section shall survive the expiration or termination of this Agreement. Nothing contained in this Section 15 shall create a right to indemnity in favor of the City Indemnified Parties for or on account of their own gross negligence or willful misconduct. 16. 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 Grantee, its officers, members, agents, employees, contractors, sub -contractors, assigns, invitees or patrons occurring in or about the Servient Estate 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 Servient Estate, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air /4Di21-L conditioning or fighting fixtures on the Servient Estate, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Servient Estate or any person whomsoever whether such damage or injury results from conditions arising upon the Servient Estate or upon other portions of the Servient Estate or from other sources. Grantee 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. Nothing contained in this Section 16 shall create a right to indemnity in favor of the City indemnified Parties for or on account of their own gross negligence or willful misconduct. Grantee acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Servient Estate, Grantee, on behalf of itself, its agents, invitees, employees, guests, contractors, and sub -contractors 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 Grantee's use of the Servient Estate. Grantee further agrees that it shall be responsible for providing its own security. 17. Safety. Grantee and each of its employees, agents, officers, contractors and subcontractors shall allow the City inspectors, agents or representatives the ability to monitor compliance on the Servient Estate with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections, the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Grantee and each of its employees, agents, officers, contractors and subcontractors shall have no recourse against the City, its agents or representatives from the occurrence, non- occurrence or result of such inspection(s). Simultaneously with the Effective Date, Grantee shall contact the City's Risk Management Department Safety Unit in writing to coordinate such inspection(s). 18. Taxes. Grantee covenants and agrees to pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Servient Estate and improvements, property, sales, rents or operations thereon, or against personal property of any kind, owned by or placed in, upon or about the Servient Estate, by Grantee, including, but not limited to sales, ad valorem taxes, fire fees and parking surcharges. Payment thereof shall commence with and shall include taxes, if any assessed for then current year. Grantee further covenants and agrees to pay all of the said taxes, if any, lawfully assessed, on such dates as they become due and payable. In the event Grantee fails to pay the real property taxes by April 15; of each year, Grantee shall be responsible to pay the City a late fee equal to 5% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the City will incur by reason of late payment by Grantee. Acceptance of such late charge by the City shall not constitute a waiver of Grantee's default with respect to such delinquent amount, nor prevent the City from exercising any of its other rights and remedies at law or in equity. Any real property taxes not paid by April 15` of each year and actually paid by the City shall bear interest at the rate of 18% per annum, commencing on April 1 and shall constitute a lien on the Dominant Estate to secure Grantee's obligation to pay such taxes. Grantee shall pay such interest to the City. Payment of such interest shall not excuse or cure any default by Grantee under this Agreement. In the event that Grantee becomes delinquent in the payment of real property taxes levied on the Servient Estate, the City, upon providing written notice to Grantee, may require either of the following, at its sole option: (1) Grantee to escrow monthly to the City an amount equal to one -twelfth of the amount billed for such ad valorem taxes, without discounts, during the previous calendar year plus 5% to cover estimated annual tax increases. Said amount shall be paid on the first day of each month. In the event the amount escrowed is not sufficient to pay the full amount of taxes due, Grantee shall pay the difference to the City for remittance to the County within fifteen (15) days of receipt of notice from the City of the amount of such deficiency. In the event the amount of monies escrowed are in excess of the taxes due, the balance shall be applied to the following year's tax payment; or (2) Grantee shall enroll in the Dade County Ad Valorem Tax Payment Plan. Failure of Grantee to pay the real property taxes levied on the Servient Estate when due and any late fees in connection therewith, to pay a monthly real estate tax escrow to the City, or to enroll in the Dade County Ad Valorem Tax Payment Plan as aforesaid shall constitute an event(s) of default under this Agreement. Notwithstanding the foregoing, Grantee shall have the right to appeal or contest the imposition of any taxes and/or the assessed values in accordance with applicable law. 19. Eminent Domain. In the event the whole or any part of the Servient Estate is taken by right of eminent domain or any similar authority of law (a "Taking"), the entire award for the value of the land and improvements so taken shall be apportioned between Grantee and the City in proportion to the respective values of Grantee's Easement and the City's interest in the Servient Estate. 20. Compliance with Environmental Laws. Grantee represents and warrants that during the term of this Agreement, it will not use or employ the Servient Estate, 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 the Servient Estate or City -owned property in violation of any applicable environmental aws. Notwithstanding the foregoing, Grantee may handle, transport, store or dispose of Hazardous Materials as necessary for Grantee's Permitted Use of the Servient Estate as long as such handling, transportation, storage and disposal is performed in strict compliance with all applicable laws and regulations. Grantee hereby indemnifies and holds harmless the City and their respective officers, employees and agents, from and against all actions and liabilities relating to Grantee's handling, transportation, storage and disposal of Hazardous Materials on or about the Servient Estate or City -owned property. The requirements of this paragraph shall survive the cancellation, revocation, termination or expiration of this Agreement. 21. Hazardous Materials. In connection with its activities on the Servient Estate, Grantee 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, Grantee 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 Servient Estate or required for Grantee's use of any hazardous materials in or about the Servient Estate 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, Grantee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Servient Estate by Grantee or at Grantee's direction, to be removed from the Servient Estate and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. Grantee 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 Servient Estate; (ii) To the best of Its knowledge, there are no Hazardous Materials presently existing on the Servient Estate. 22. Default and Termination. If Grantee in any manner defaults in the performance of this Agreement, the City Manager may give written notice to Grantee of such default. If Grantee fails to cure such default within ninety (90) days after written notice is given to Grantee (or such longer period as may be reasonably necessary to cure such default, provided Grantee promptly commences, and diligently continues, to cure the default) the City may elect to: (i) terminate this Agreement for a material breach adversely affecting the City's interest in the Servient Estate or (ii) pursue any other remedy available at law or in equity. In the event the material breach consists of or involves a violation of Section 13 asserted by a non -governmental third party, the Easement may not be terminated unless Grantee fails to comply with or satisfy a judgment finding Grantee in violation of paragraph 13. 23. State Approval. Grantee acknowledges that the Servient Estate is subject to certain restrictions contained in Deed No. 19448 made by the Trustees of the Internal Improvement Fund of the State of Florida to the City dated February 24, 1949. Grantee and City will fully cooperate and work together utilizing best efforts and diligence in order to obtain a finding of compliance with the deed restriction or a waiver of deed restriction if a finding of compliance cannot be obtained from the State of Florida Board of Trustees of the Internal Improvement Trust Fund. The Effective Date of this Agreement is subject to, among other things, the City obtaining the approval of the Trustees of the Internal Improvement Fund of the State of Florida (the "State Approval"), for the use of the Servient Estate as set forth in this Agreement, Should the State of Florida require the payment of any fee or other consideration for the State Approval, the City and Grantee agree to negotiate a mutually acceptable payment of the fees. In the event the State Approval is not obtained within eighteen (18) months from the execution of this Agreement, then this Agreement shall be null and void ab initio. 24. Public Purpose. Grantee, at its sole cost, agrees to provide, or cause to be provided, during the months of November and January, the cleanup of the island located easterly of the Servient Estate as depicted in Exhibit © attached hereto. Cleanup shall consist of removing and disposing of all trash and small debris weighing less than ten (10) pounds that may be located on the island. This obligation shall be limited solely to the pick up and removal of trash and litter that can be picked easily up by hand. The Grantee shall have no obligation to remove and dispose of any dangerous, hazardous or toxic materials, jetsam, flotsam, storm debris, derelict vessels or parts thereof or any other debris weighing in excess of ten (10) pounds, individually. Grantee covenants to: (i) continue to sponsor and conduct, either individually or in concert with other organizations, at least three (3) sailing races or regattas each year which attract participants from other states or countries, (ii) to continue to conduct programs to promote better understanding and responsible use of boats and marine resources, (iii) provide the Florida Marine Patrol or other law enforcement agency with the right to use one of the 32 foot boat slips to be constructed on the Servient Estate for storage of a patrol boat at no charge and (iv) contribute one half the cost to place a navigation marker and light at the end of the "seaplane" channel. 25. Title. Grantee may, at its sole cost and expense, obtain title insurance on Grantee's interest in the Servient Estate. The City shall cooperate with Grantee and reasonably assist in curing any title defects which may be disclosed by a title search or survey. Nothing contained herein shall require the City to cure any title defects other than those created by the City nor shall City be required to bring any action or to incur any expense to cure any title defect. Grantee agrees to perform all necessary title work that it elects to perform in a timely fashion on '�i or before the Effective Date. Grantee's execution of this Agreement and payment of the consideration to the City shall be conclusive evidence that Grantee has accepted title to the easement contemplated hereunder in its then "AS IS" condition 26. Frustration of Purpose. If within 24 months following the Effective Date, Grantee is unable to obtain the permits necessary to construct the improvements necessary to construct and operate a marina similar to the one currently operated by Grantee in the Servient Estate, then Grantee may cancel this Agreement and return the Servient Estate to the City. In such event, the City shall return the consideration paid less a termination fee of Five Thousand Five Hundred Dollars and 00/100 ($5,500) per month for each month after the Effective Date to the date of surrender of possession. Grantee shall, if so requested by the City, remove existing docks at its own expense, less any reduction due Grantee by the City. 27. Notices. All notices and other communications under this Agreement shall be in writing and shall be given by certified mail, return receipt requested, hand delivery or courier ("Notice"( addressed to the City or Grantee as may be applicable, at: City: City of Miami City Manager 3500 Pan American Drive Miami, FL 33130 with a copy to City of Miami City Attorney 444 S.W. 2d Avenue, Suite 945 Miami, FL 33130 City of Miami Director, Public Facilities Asset Management Division 444 S.W. 2nd Avenue, 3'd Floor Miami, FL 33130 Grantee: Biscayne Bay Yacht Club Attn: Commodore 2540 S Bayshore Drive Miami, FL 33133 With a copy to Charles C. Kline, Esq. White & Case LLP Wachovia Financial Center, Suite 4900 200 South Biscayne Blvd. Miami, Florida 33131 or to such other address as either party may designate from time to time. If Notice is given by hand delivery or courier, Notice shall be deemed served on the date of such delivery. If the Notice is sent via certified mail, Notice shall be deemed served five (5) business days after the date the Notice is deposited with the U.S. Post Office. 28. Assignment; Binding Effect. This Agreement may not be assigned, pledged, transferred or encumbered without the express written approval of the City Manager, which approval may be withheld or conditioned in his sole discretion. This Agreement shall be binding upon and inure to the benefit of City and Grantee and their respective successors and permitted assigns. Any transferee approved by the City of any part of the Servient Estate shall automatically be deemed, by acceptance of the title to any portion of the Servient Estate, as the case may be, to have assumed all obligations of this Agreement. 29. 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. 30. Non -Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of Grantor's Fee Simple interest in the Servient Estate to Grantee, 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. 31. 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. 32. 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 Servient Estate and the improvements thereon. 33. Attorneys' Fees. In the event it becomes necessary for either party to institute legal proceedings to enforce the provisions of this Agreement, each party shall bear its own attorneys' fees through all trial and appellate levels. 34. 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 easement hereby granted by the City to Grantee, 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 Grantee to enter into this Agreement. 35. 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. 36. No Partnership. 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. ,Ohti 37. 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. 38. 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. 39. 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. 40. Recording. Unless otherwise required by the State of Florida, the Parties agree that this Easement Agreement shall not be recorded, but that a memorandum of easement in the form of Exhibit F shall be recorded at the Grantee's expense. 41. Maintenance of the Public Area. Grantee agrees to participate with the City in the planning of the improvements and landscaping to be constructed by the City on the Public Area between the Dominant Estate and South Bayshore Drive (the "Public Area Improvements"). Once the Public Area improvements have been installed by the City, Grantee, at its sole cost, shall maintain the landscaping and shall clean up litter and debris in the Public Area on a routine basis and in a manner consistent with Grantee's maintenance of the Dominant Estate. IN WITNESS WHEREOF, City and Grantee have executed this Submerged Lands Easement Agreement as of the date set forth above. CITY OF MIAMI, a Municipal Corporation of the ATTEST: State of Florida By: By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By Jorge L. Fernandez Risk Management Department City Attorney STATE OF COUNTY OF } } The foregoing instrument was acknowledged before me this day of 2006, by , as the City Manager of the City of Miami, a municipal corporation of the State of Florida, on behalf of the City. Personally Known Produced Identification Type of Identification Produced or Signature: Name: [Print or type} Title: Notary Public Serial No., if any: My commission expires AiPtt ATTEST: By. //9 F/1:/') 4 41 ' Print Name & Tide STATE OF1�i COUNTY OF /) 9 BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation By: Print Name & Title Thforegoing if �str meat was ackwiedged before 2006, by if GC° (N% s,r,„ as the /c ocIaL. € Florida non-profit corporation. Personally Known t� or Produced Identification Type of Identification Produced N.rte: type] Title: Notar Serial No., if any: me this day of//# , of Biscayne Bay Yacht Club, a ure: rint or *Lc.1�k. L 0 ( .Q i d Public My commiss n expires MA taf� RVC!1CNLOCL'2iO No,aryPub.E,^- State ofF1or,.do ^vlvCommission Expires Nov 20.2LO Commission, # DD157461 Bondoa By Notional Noiary Assn. fri/ity Exhibit A SERV1ENT ESTATE Beginning at the point of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Block 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, Page 16 of the Public Records of Dade Co., Florida and the U.S. Harbor and Pierhead Line thence run southeasterly along said extended lot line a distance of two hundred seventy (270) feet, more or less, to the North boundary of U.S. Coast Guard Restricted Area; thence run Easterly along said North boundary of U.S. Coast Guard Restricted Area, a distance of three hundred five (305) feet, more or less, to a point in the southeasterly extension of a line which is Forty-five (45) feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43, of aforesaid subdivision said point being three hundred seventy-eight (378) feet, more or less, Southeasterly of the U.S. Harbor and Pierhead Line; thence run Northwesterly along said extended line Forty-six (46) feet Southwesterly of and parallel to the Northeasterly line of said Lot 17, three hundred seventy-eight (378) feet, more or less, to its intersection with the U.S. Harbor and Pierhead Line; thence run Southwesterly along the U.S. Harbor and Pierhead Line two hundred seventy-seven (277) feet, more or less, to the point of beginning, said parcel containing 2 1/10 (2.10) acres more or less. Commencing at the point of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Block 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, at Page 16 of the Public Records of Dade Co., Florida with the U.S. Harbor and Pierhead Line; run southeasterly along said extended lot line a distance of 270 feet, more or less, to the north boundary of the U.S. Coast Guard Restricted Area, which is the point of beginning of the parcel herein described; thence continue southeasterly along said extended lot line for a distance of 206 feet; thence northwesterly parallel to the U.S. Harbor and Pierhead Line For a distance of 277 feet, more or less, to a point in the southeasterly extension of a line which is 45 feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43 of aforesaid subdivision, said point being 476 feet, southeasterly of the U.S. Harbor and Pierhead Line; thence northwesterly along said extended line parallel to the northeasterly line of said Lot 17 for a distance of 98 feet, more or less, to its intersection with the north boundary of the U.S. Coast Guard Restricted Area; thence westerly along said north boundary for a distance of 305 feet, more or less, to the point of beginning; lying within the City of Miami, Dade County, Florida, and containing 1 .0 acre, more or less. d4ftf ra, ./..I11.01,1.116,Pr,-Il ,11., c-e • SUBMERGED LAND SERVIENT ESTATE III +— 3.085 ACRES &,-SCA'sz" 8ge jnAAES 8(.41b64AN at ASSOC ING .10) F.O.O. tONSot.i.+.4 9.1,rviYOPS 6 IN(1.4(1703 SP/CJAz SuRvir' tap eisorive• eAr nu3 The Servient Estate will be surveyed and if necessary, the legal description thereof will be adjusted to conform Exhibit B PUBLIC AREA The Northwesterly 22 feet of the following described property abutting on South Bayshore Drive: RHODES AND NEW BISC PB B-16 LOT 17 LESS NEL5OFT & LOTS 18 AND 19 BLK 43 LOT SIZE 188915 SQ FT A/Itt Exhibit C INSURANCE REQUIREMENTS Grantee agrees to have the following policies of insurance in effect and will provide duly authorized certificates of insurance to the Risk Manager for the City of Miami to confirm the existence of such policies of insurance to gain physical access to the parcel(s) of land owned by the City of Miami which are described in this Agreement. Such policies of insurance are to be in effect no later than the date of physical access to such parcels of land by Grantee, its contractors and subcontractors pursuant to this Agreement, except as otherwise noted in this Agreement, I. Commercial General Liability subject to limits and endorsements as shown below: A. Limits of Liability: Bodily injury and property damage liability each occurrence: $1,000,000 General aggregate limit: $2,000,000 Products/completed operations: $1,000,000 Personal and advertising injury: $1,000,000 B. Endorsements required: City of Miami included as additional insured Employees included as insured Independent contractor's coverage Waiver of subrogation Explosion, Collapse and underground hazard II. Business Automobile Liability A. Limits of Liability (*) Bodily injury and property damage liability combined single limit Any auto, including hired, borrowed, or non -owned autos any one accident: $1,000,000 B. Endorsements required City of Miami included as an additional insured III. Workers Compensation Limits of liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V. Marine Operators Legal Liability A. Limits of Liability Each Occurrence $1,000,000 Aggregate $1,000,000 insurance Requirements for Construction of Docks (by General Contractor): Commercial General Liability subject to limits and endorsements as shown below: A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury B. Endorsements Required $1.000,000 $ 2,000,000 $ 1,000,000 $1.000,000 City of Miami included as an Additional Insured Employees included as insured Independent Contractors Coverage Contractual Liability Waiver of Subrogation PremiseslOperations Explosion, Collapse and Underground Hazard Loading and Unloading ll. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non --Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured II€. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V. Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 1,000,000 Aggregate $ 1,000,000 VI. Owners & Contractor's Protective Each Occurrence General Aggregate $1,000,000 $1,000,000 The City's Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Grantee. The Grantee shall provide any other insurance or security reasonably required by the City. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. 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. Bests Company, Oldwick, New Jersey, or its equivalent. All policies andlor certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. Notwithstanding the foregoing, Grantee may cause its independent contractors to provide some or all of the foregoing insurance coverages, and to the extent that such independent contractors carry such coverages, Grantee shall not be required to carry such coverages, so long as the coverages obtained by Grantee and such independent contractors together satisfy the requirements of this Agreement. Exhibit .i Spoil Island �BxetY`46; =* t;'��-:`':�`�:; _i:��:: ... :,.. �?:, atrwam1,4441111 Exhibit E GRANTEE CORPORATE RESOLUTION (To be inciuded prior to Execution) EXHIBIT F MEMORANDUM OF EASEMENT This instrument was prepared by: Charles C. Kline, Esq White & Case, LLP Wachovia Financial Center, Suite 4900 200 South Biscayne Blvd. Miami, Florida 33131 OFFICE FOR USE BY RECORDING MEMORANDUM OF EASEMENT AGREEMENT This Memorandum of Easement Agreement is entered into on , 200 , by THE CITY OF MIAMI, a municipal corporation of the State of Florida, (hereinafter referred to as "City" or "Grantor") and BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation (hereinafter referred to as "Grantee"). I. City and Grantee entered into a SUBMERGED LANDS EASEMENT AGREEMENT ("Agreement") dated as of 200 , for the purpose of Grantee constructing, maintaining and operating a marina, providing dockage, to drive pilings, place pile caps, slabs, beams and rip rap, run utilities and take such other action as is reasonably necessary to construct and utilize a system of fixed or floating docks and piers, or a combination thereof, over and on the Servient Estate and to maintain and from time to time, to rebuild or reconfigure such system of docks and piers. All of the foregoing is set forth in the Easement Agreement. 2. The term of the Easement is perpetual unless earlier terminated for cause as set forth therein. 3. The Servient Estate that is the subject of the Easement Agreement is described in Exhibit "A" annexed hereto. . 4. Copies of the Easement Agreement shall be available from the City of Miami, Department of Public Facilities, 444 SW 2'"d Avenue, 3' a Floor, Miami, Florida 33130. IN WITNESS WHEREOF, the parties have executed this Memorandum of Easement Agreement as of the day and year first written above. Signed, Sealed and Delivered in our Presence: THE CITY OF M1AJ II, a municipal corporation o Print Name: By: Print Name: JOE ARRIOLA, City Manger ATTEST: PRISCILLA THOMPSON City Clerk APPROVED AS TO FORM AND CORRECTNESS: JORGE L. FERNANDEZ City Attorney APPROVED AS TO INSURANCE REQUIREMENTS: Risk Management Print Name: Print Name: BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation BtUCE Commodore' IATHESON, *41-1 STATE OF FLORIDA COUNTY OF MIAMI-DADE: THIS INSTRUMENT WAS ACKNOWLEDGED before me this day of , 20_ , by JOE ARRIOLA, as City Manager of THE CITY OF MIAMI, a municipal corporation of the State of Florida. He is personally known to me or produced as identification and did not take an oath. Print Name: Notary Public, State of Florida My Commission Expires: STATE OF FLORIDA COUNTY OF A1IAMI-DADE: THIS INSTRUMENT WAS ACKNOWLEDGED before me this day of k%/ 20by BRUCE M. MAT.HESON, as Commodore of BISCAYNE BAY YACHT CLUB, a Florida non-profit corporation. He is personally known to me or produced as identification and did not take an oath. Pr i tN N tary(Public, State of Florida My Commission Expires: 'v p'6 NIACtY Notory Pubilc - State of Flc 0o Uy ComoCornrror, ExpeesNov 2Ct XIX Comrnisslon # DD 157461 Bonded By National Nolpry Assn, Exhibit "A" LEGAL DESCRIPTION OF SERVIENT ESTATE Beginning at the point of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Block 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, Page 16 of the Public Records of Dade Co., Florida and the U.S. Harbor and Pierhead Line; thence run southeasterly along said extended lot line a distance of two hundred seventy (270) feet, more or less, to the North boundary of U.S. Coast Guard Restricted Area; thence run Easterly along said North boundary of U.S. Coast Guard Restricted Area, a distance of three hundred five (305) feet, more or less, to a point in the southeasterly extension of a line which is Forty-five (45) feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43, of aforesaid subdivision said point being three hundred seventy-eight (378) feet, more or less, Southeasterly of the U.S. Harbor and Pierhead Line; thence run Northwesterly along said extended line Forty-six (46) feet Southwesterly of and parallel to the Northeasterly line of said Lot 17, three hundred seventy-eight (378) feet, more or less, to its intersection with the U.S. Harbor and Pierhead Line; thence run Southwesterly along the U.S. Harbor and Pierhead Line two hundred seventy-seven (277) feet, more or less, to the point of beginning, said parcel containing 2 1/10 (2.10) acres more or less. Commencing at the point of intersection of the southeasterly extension of the lot line between Lots 19 and 20 of Blocks 43 of Samuel Rhodes Amended Map of New Biscayne, as recorded in Plat Book B, at Page 16 of the Public Records of Dade Co. Florida, with the U.S. Harbor and Pierhead Line; run southeasterly along said extended lot line a distance of 270 feet, more or less, to the north boundary of the U S. Coast Guard Restricted Area, which is the point of beginning of the parcel herein described; thence continue southeasterly along said extended lot line for a distance of 206 feet; thence northwesterly parallel to the U.S. Harbor and Pierhead Line for a distance of 277 feet, more or less, to a point in the southeasterly extension of a line which is 45 feet southwesterly of and parallel to the northeasterly line of Lot 17 of Block 43 of aforesaid subdivision, said point being 476 feet, southeasterly of the U.S. Harbor and Pierhead Line; thence northwesterly along said extended line parallel to the northeasterly line of said Lot 17 for a distance of 98 feet, more or less, to its intersection with the north boundary of the U.S. Coast Guard Restricted Area; thence westerly along said north boundary for a distance of 305 feet, more or less, to the point of beginning; lying within the City of Miami, Dade County, Florida, and containing 1.0 acre, more or less. 11)7441/1 ..V•et• oi val llj i BNIERC.`..ED LAND ( SERVIENT ESTATE 4/e— 3.085 ACRES cws,--rw .jANAES 601.0-Q,LN a ASSOC .NC 14111 tv• SOWET005 0 (.140*(CAS 58.MAt. SUArt fC.,P 8/514Y/vi 5-lr pc.yr (WO The Servient Estate will be surveyed and if necessary, the legal description thereof will be adjusted to conform SUBMERGED LANDS EASEMENT AGREEMENT THIS EASEMENT AGREEMENT ("Agreement") is made as of , 2006 by HE CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and for the fit of CORAL REEF YACHT CLUB, a Florida non-profit corporation ("Grant; "). RECITALS A. Tite Grantee is the record title holder of approxirn ly 3.82 acres of upland located at approximately 2484 South Bayshore Drive, Miami, Florida he "Grantee's Property). B. The City is\the record title holder of approximay 4.21 acres of submerged land lying adjacent to the Grantee"'s\Property, as more particularly/ described in Exhibit "A" attached hereto (the "Servient Estate") r C. The Grantee is the only possible user/of the Servient Estate given its riparian rights. '� it D. The Grantee through the uea of C antee's Property and the Servient Estate performs vital public functions such as attractigAisitors to the City for regional, national and international sailing events, and teaching sailir and sailboat racing to members of the community. 1 y NOW, THEREFORE, in consideration of yen and No/100 Dollars and other good and valuable consideration, the receipt and sufficiency of;nrhich are acknowledged by the parties, City and Grantee agree as follows: AGREEMENTS 1. Recitals. The foregoing recitals are true and ccrect and are incorporated herein as if set out in full In the both+ of this Agreement. 2. Grant o/Easement. City hereby grants to Grant , its employees, members, agents, contractors, subcontractors, invitees and guests, an easemen over, across and upon the Servient Estate , for/he limited purpose of constructing, maintaining nd operating a marina, providing dockage, drive pilings, place pile caps, slabs, beams and rip p, run utilities and take such other action iis reasonably necessary to construct and utilize a sys't m of fixed or floating docks and piers,br a combination thereof, over and on the Servient Estatend to maintain and from time to tiny& to rebuild or reconfigure such system of docks and piers (th�e,Permitted Uses"). The use of the docks and piers shall be limited to Grantee's members, Invited, guests and law enforcement/ All construction and use of the docks and piers shall be done in Oompliance with the laws and regulations of all government agencies having jurisdiction over soh docks and piers. 3. Term. This Agreement shall commence thirty days after receiving State Apprr al according to conditions acceptable to the City and Grantee as set forth in Section 24 herein (the "Effective Date"), and shall run with the land in perpetuity provided, however, that this. ea ement shall automatically terminate and revert to Grantor with the right of immediate psession and right of entry to the Grantor, or its successors in interest, in the event Grantee: fa) assigns this easement without the City's prior written consent; (b) conveys any interest in the 'Dominant Estate to a third party without the City's prior written consent; (c) does not use the', ir-,(2X c)) /1/6 Servient Estate for the Permitted Use; (d) fails to maintain a non-profit status; (e) abandons or discontinues the Permitted Use for thirty (30) days, except during times of repair, replacement or construction. Upon termination of this Agreement, all rights and privileges derived from, and at! 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, 4. Operations. The Grantee shall, at its sole cost and expense, make any and ail improvements required for its use of the Servient Estate. The Grantee shall not encroach beyond the boundaries of the Servient Estate. Should the Servient Estate be abandoned or discontinued by law or otherwise, said easement shall cease and revert with the right of immediate possession and right of entry to the City or its successors in interest. 5, Condition of the Property, Grantee accepts the Servient Estate Has -is", in its present condition and state of repair and without any representation by or on behalf of City except as to the City' title to the Servient Estate, and agrees that City shall, under no circumstances, be liable for any latent, patent or other defects in the Servient Estate. Grantee, at its sole cost, shall maintain the Servient Estate in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. Grantee shall be responsible for all repairs and replacements to the Servient Estate required or caused by the use of any part thereof. 6. Expense and Maintenance Responsibllities. Grantee shall design, construct, install, maintain and repair any and all improvements required for its use of the Servient Estate, including, but not limited to, all related infrastructure improvements and permitting costs, at Grantee's sole cost and expense (hereinafter "Improvements"). Grantee shall submit plans and specifications for such Improvements to all governmental entities having jurisdiction over the improvements for their prior written approval. Additionally, such plans and specifications shall also be submitted to the City Manager or his designee for his prior written approval, which shall not be unreasonably withheld provided that such Improvements are in compliance with the terms of this Agreement. In the event of an emergency, Grantee may reasonably proceed to perform such repair work and shall immediately notify the City of such work. Grantee shall keep the Servient Estate in a safe, sightly, good and functional condition during the term of this Agreement at Grantee's sole cost and expense. All work performed by or on behalf of Grantee shall be conducted in a lien -free manner and in accordance with Paragraph 7 hereof. Prior to commencement of construction, Grantee shall submit to the City Manager proof of funding and/or its financing plans.. 7. Mechanics' Lites. Grantee shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Servient Estate by reason of work, labor, services or materials supplied to Grantee or anyone having a right to possession of the Servient Estate as a result of an agreement with Grantee acting, with or without Grantee's consent. Nothing in this Agreement shall be construed as constituting the request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Servient Estate nor as giving Grantee 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 Clty's interest in the Servient Estate. If any mechanics' lien shall at any time be filed against the Servient Estate by reason of work, labor services or materials supplied to Grantee, its officers, members, agents, employees, , contractors or subcontractors, Grantee 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 Grantee shall not be required to pay or discharge any mechanics' lien within the thirty (30) day period, so long as Grantee 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's fees to be incurred in connection with it. If Grantee does not: i) cause a mechanics lien to be discharged of record within thirty (30) days after the date Grantee has notice of the filing of a lien; or ii) in good faith proceed to contest the Iien by appropriate proceedings within the thirty (30) day period, then Grantee shall be in default of this Agreement. 8. Utilities. Grantee shall pay for ail utilities, including, but not limited to, electricity, water, stormwater fees, gas, telephone, garbage and sewage disposal used by Grantee during its occupancy of the Servient Estate pursuant to this Agreement, as well as all costs for installation of any lines and equipment needed by Grantee, its officers, members, agents, invitees, employees, guests,. contractors or subcontractors. Grantee, at its sole cost, shall install all utilities required for its use and install separate utility meters required thereby and shall be billed directly by the applicable utility company for such services. 9, Advertising. Grantee shall not permit any advertising signs to be placed either in the interior or upon the exterior of the Servient Estate without having first obtained the approval of the City Manager or his designee. Notwithstanding the foregoing, Grantee shall be permitted to place non-commercial signage which is usual and customary in a marina for the purpose of providing identification, safety and regulatory information. 10, Ownership of Improvements. As of the Effective Date and throughout the Term, title to all improvements on the Servient Estate shall be vested in Grantee, unless otherwise provided by other written agreement. 11, Removal of Property. In the event of termination of this Agreement and if the City so requires by written notice to Grantee, Grantee shah promptly remove all personal property, fixtures and equipment and any buildings and other improvements constructed or caused to be constructed by Grantee on the Servient Estate within one hundred and eighty (180) days after termination of this Agreement. In the event Grantee fails to remove its personal property, equipment and fixtures, and any such buildings and other improvements so designated by the City from the Servient Estate within said one hundred and eighty (180) day period, said property shall be deemed abandoned and thereupon shall become the sole property of the City, The City, at ifs sole discretion and without liability, shall remove the same and Grantee shall reimburse the City for all reasonable expenses associated with such removal and dispersal and the City shall have a lien on the Dominant Estate to secure Grantee's obligation to reimburse the City for such cost of removal. Any and all improvements made to the Servient Estate, other than those portions used by other parties not under Grantee's control, shall be done at the sole cost, expense and risk of Grantee. 12. Consideration. In consideration of the granting of this Agreement, Grantee shall pay to the City for the use of the Servient Estate One Million One Hundred and Forty Thousand Dollars ($1,140,000.00). The Grantee shall procure a survey of the Servient Estate, which cost shall be spilt 50150 between the City and Grantee. The City's fifty percent (50%) share shall be credited against the amounts due by Grantee to City. In the event the survey shows a difference of 10% or less in square footage, there shall be no adjustment to the consideration paid by Grantee for use of the Servient Estate. In the event there is more than a 10% difference up or down in the square footage, the consideration shall be adjusted based on a rate of $6.55 per square foot. 13. Compliance With Permits and Laws. In connection with the construction, maintenance and use of the Servient Estate, Grantee 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 Servient Estate, including, but not limited, to Chapter 713, F.S, Grantee, in connection with its use of the Servient Estate, shall comply with all laws which apply to its use of the Servient Estate, including to the extent applicable to Grantee the Americans with Disabilities Act ("ADA") and including to the extent applicable to Grantee all laws prohibiting discrimination, 14. Insurance, In connection with the Servient Estate, Grantee shall obtain and maintain or cause to obtained and maintained throughout the term of this Agreement the types and amounts of insurance coverages set forth in Exhibit B, attached hereto and incorporated herein by this reference. 15. Indemnity, Grantee shall indemnify, defend and save harmless City and City's successors, permitted assigns, officials, employees and agents (the "City Indemnified Parties") from and against any and ail claims, actions, proceedings, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys` fees and costs), arising out of, or relating to the Servient Estate, or in any way connected to the, construction, installation, maintenance and repairs which Grantee its officers, members, agents, invitees, employees, guests, contractors or subcontractors perform or cause to be performed in the Servient Estate 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 Masters, Grantee, 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 and pay for related attorney costs, court costs, damage awards, as well as satisfy any other remedies demanded by the court. City shall &so 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 Grantee or City with respect to the claim or matter in question; and (ii) City shall not, without Grantee's prior written consent, settle any such action or proceeding or interfere with Grantee's defense or prosecution of such action or proceeding. The provisions of this Section shall survive the termination of this Agreement. Nothing contained in this Section 15 shall create a right to indemnity in favor of the City Indemnified Parties for or on account of their own gross negligence or willful misconduct. 16, 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 Grantee, its officers, members, agents;-erepli gees; cor tractorsssUtl-contractors, assigns, invitees or patrons occurring in or about the Servient Estate 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 Servient Estate, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures on the Servient Estate, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Servient Estate or any person whomsoever whether such damage or injury results from conditions arising upon the Servient Estate or upon other portions of the Servient Estate or from other sources. Grantee 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. Nothing contained in this Section 16 shall create a right to indemnity in favor of the City• Indemnified Parties for or on account of their own gross negligence or willful misconduct. Grantee acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Servient Estate, Grantee, on behalf of itself, its agents, invitees, employees, guests, contractors, and sub -contractors 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 Grantee's use of the Servient Estate. Grantee further agrees that it shall be responsible for providing its own security. 17. Safety. Grantee and each of its employees, agents, officers, contractors and subcontractors shall allow the City inspectors, agents or representatives the ability to monitor compliance on the Servient Estate with safety precautions as required by federal, state or local laws, rules, regulations and ordinances, By performing these inspections, the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Grantee and each of its employees, agents, officers, contractors and subcontractors shall have no recourse against the City, its agents or representatives from the occurrence, non- occurrence or result of such inspection(s). Simultaneously with the Effective Date, Grantee shall contact the City's Risk Management Department Safety Unit in writing to coordinate such inspection(s). 18. Taxes. Grantee covenants and agrees to pay before any fine, penalty, Interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Servient Estate and improvements, property, sales, rents or operations thereon, or against personal property of any kind, owned by or placed in, upon or about the Servient Estate, including, but not limited to sales, ad valorem taxes, fire fees and parking surcharges, as applicable . Payment thereof shall commence with and shall include taxes, if any assessed for then current year. Grantee further covenants and agrees to pay all of the said taxes, if any, lawfully assessed, on such dates as they become due and payable. In the event Grantee fails to pay the real property taxes by April 1s1 of each year, Grantee shall be responsible to pay the City a late fee equal to 5% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the City will incur by reason of late payment by Grantee. Acceptance of such late charge by the City shall not constitute a waiver of Grantee's default with respect to such delinquent amount, nor prevent the City from exercising any of its other rights and remedies or at law or in equity. Any real property taxes not paid by April 161 of each year and actually paid by the City shall bear interest at the rate of 18% per annum, commencing on April 1 and shall constitute a lien on the Dominant Estate to secure Grantee's obligations to pay such taxes. Grantee shall pay such interest to the City. Payment of such interest shall not excuse or cure any default by Grantee under this Agreement, In the event that Grantee becomes delinquent in the payment of real property taxes, the City, upon providing written notice to Grantee, may require either of the following, at its sole option: (1) Grantee to escrow monthly to the City an amount equal to one -twelfth of the amount billed for ad valorem taxes, without discounts, during the previous calendar year plus 5% to cover estimated annual tax increases. Said amount shall be paid on the first day of each month, In the event the amount escrowed is not sufficient to pay the full amount of taxes due, Grantee shall pay the difference to the City for remittance to the County within fifteen (15) days of receipt of notice from the City of the amount of such deficiency. In the event the amount of monies escrowed are in excess of the taxes due, the balance shall be applied to the following year's tax payment; or (2) Grantee shall enroll in the Dade County Ad Valorem Tax Payment Plan. Failure of Grantee to pay the real property taxes levied on the Servient Estate when due and any late fees in connection therewith, to pay a monthly real estate tax escrow to the City, or to enroll in the Dade County Ad Valorem Tax Payment Plan as aforesaid shall constitute an event(s) of default under this Agreement. Notwithstanding the foregoing, Grantee shall have the right to appeal or contest the imposition of any taxes and/or the assessed values in accordance with applicable law, 19. Eminent Domain. In the event the whole or any part of the Servient Estate is taken by right of eminent domain or any similar authority of law (a "Taking"), the entire award for the value of the land and improvements so taken shall be apportioned between Grantee and the City in proportion to the respective values of Grantee's Easement and the City's interest in the Servient Estate. 20. Compliance with Environmental Laws. Grantee represents and warrants that during the term of this Agreement, it will not use or employ the Servient Estate, 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 the Servient Estate or City -owned property in violation of any applicable environmental laws, Notwithstanding the foregoing, Grantee may handle, transport, store or dispose of Hazardous Materials as necessary for Grantee's Permitted Use of the Servient Estate as long as such handling, transportation, storage and disposal is performed in strict compliance with all applicable laws and regulations. Grantee hereby indemnifies and holds harmless the City and their respective officers, employees and agents, from and against ail . - actions and liabilities relating to Grantee's handling, transportation, storage and disposal of Hazardous Materials on or about the Servient Estate or City -owned property. The requirements of this paragraph shall survive the cancellation, revocation, termination or expiration of this Agreement. 21. Hazardous Materials, In connection with its activities on the Servient Estate, , Grantee 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 Lawsv), 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, Grantee 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 Servient Estate or required for Grantee's use of any hazardous materials in or about the Servient Estate 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, Grantee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Servient Estate by Grantee or at Grantee's direction,- to be removed from the Servient Estate and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. Grantee 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 Servient Estate; (ii) To the best of its knowledge, there are no Hazardous Materials presently existing on the Servient Estate. 22, Default and Termination. If Grantee in any manner defaults in the performance of this Agreement, the City Manager may give written notice to Grantee of such default. If Grantee fails to cure such default within ninety (90) days after written notice is given to Grantee (or such longer period as may be reasonably necessary to cure such default, provided Grantee promptly commences and diligently continues to cure the default), the City may elect to: (1) terminate this Agreement for a material breach adversely affecting the City's interest in the Servient Estate or (ii) pursue any other remedy available at law or in equity. In the event the material breach consists of or involves a violation of Section 13 asserted by a non -governmental third party, the Easement may not be terminated unless Grantee fails to comply with or satisfy a judgment finding Grantee in violation of paragraph 13. 23, State Approval. Grantee acknowledges that the Servient Estateis subject to certain restrictions contained in Deed No. 19448 made by the Trustees of the Internal Improvement Fund of the State of Florida to the City dated February 24, 1949. Grantee and City will fully cooperate and work together utilizing best efforts and diligence in order to obtain a finding of compliance with the deed restriction or a waiver of deed restriction if a finding of compliance cannot be obtained from the State of Florida Board of Trustees of the internal Improvement Trust Fund, The Effective Date of this Agreement is subject to, among other things, the City obtaining the approval of the Trustees of the Internal improvement Fund of the State of Florida (the "State Approval"), for the use of the Servient Estate as set forth in this Agreement. Should the State of Florida require the payment of any fee or other consideration for the State Approval, the City and Grantee agree to negotiate a mutually acceptable payment of the fees. In the event the State Approval is not obtained within eighteen (18) months from the execution of this Agreement, then this Agreement shall be null and void ab initio. 24. Public Purpose. Grantee, at its sole cost, agrees to provide, or cause to be provided, during the months of May and September, the clean-up of the island located easterly of the Servient Estate, as depicted in Exhibit C attached hereto. Cleanup shall consist of removing and disposing of ordinary trash and litter that may be located on the island. This obligation shall be limited solely to the pick up and removal of trash and small debris weighing Tess than ten (10) pounds that may be located on the island. This obligation shall be limited to the pick up and removal of trash and litter that can be picked easily up by hand. The Grantee shall have no obligation to remove and dispose of any dangerous, hazardous or toxic materials, jetsam, flotsam, storm debris, derelict vessels or parts thereof or any other debris weighing in excess of ten (10) pounds, individually. The Grantee agrees to; (i) continue to host regional, national or international sailing events or regattas which attract visitors to the City; (ii) make its docks available to transient guests from other yacht clubs and organizations with which the Grantee shares "reciprocal privileges"; (iii) permit temporary dockage of one law enforcement vessel not to exceed 36 feet in length within the Servient Estate; and (iv) contribute one half the cost to place a navigation marker and light at the end of the "seaplane" channel. 25. Title, Grantee may, at its sole cost and expense, obtain title insurance on Grantee's interest in the Servient Estate. The City shall cooperate with Grantee and reasonably assist in curing any title defects which may be disclosed by a title search or survey. Nothing contained herein shall require the City to cure any title defects other than those created by the City nor shall City be required to bring any action or to incur any expense to cure any title defect. Grantee agrees to perform all necessary title work that it elects to perform in a timely fashion on or before the Effective Date. Grantee's execution of this Agreement and payment of the consideration to the City shall be conclusive evidence that Grantee has accepted title to the easement contemplated hereunder in its then "AS IS" condition. 26. Frustration of Purpose. If within 24 months following the Effective Date, Grantee is unable to obtain the permits necessary to construct the improvements necessary to construct and operate a marina similar to the one currently operated by Grantee in the Servient Estate under a lease with the City, then Grantee may cancel this Agreement and return the Servient Estate to the City. In such event, the City shall return the consideration paid less a termination fee of Seven Thousand One Hundred Sixty Seven Dollars and 00/100 ($7,167.00) per month for each month after the Effective Date to the date of surrender of possession. Grantee shall, if so requested by the City, remove existing docks at its own expense, less any reduction due Grantee by the City. 27. Notices. All notices and other communications under this Agreement shall be in writing and shall be given by certified mail, return receipt requested, hand delivery or courier ("Notice"( addressed to the City or Grantee as may be applicable, at: Citv: City of Miami City Manager 3500 Pan American Drive Miami, FL 33130 with a copy to City of Miami City Attorney 444 S.W. 2` Avenue, Suite 945 Miami, FL 33130 City of Miami Director, Public Facilities Asset Management Division 444 S.W. 2° Avenue, 3`d Floor Miami, FL 33130 Grantee: Coral Reef Yacht Club Attn: Commodore 2484 S Bayshore Drive Miami, FL 33133 With copy to: Coral Reef Yacht Club Attn: General Manager 2484 S Bayshore Drive Miami, FL 33133 or to such other address as either party may designate from time to time. If Notice is given by hand delivery or courier, Notice shall be deemed served on the date of such delivery. If the Notice is sent via certified mail, Notice shall be deemed served five (5) business days after the date the Notice is deposited with the U.S. Post Office. 28. Assistnment: Binding Effect. This Agreement may not be assigned, pledged, transferred or encumbered without the expressed written approval of the City Manager, which approval may be withheld or conditioned in his sole discretion. This Agreement shall be binding upon and inure to the benefit of City and Grantee and their respective successors and permitted assigns. Any transferee approved by the City of any part of the Servient Estate shall automatically be deemed, by acceptance of the title to any portion of the Servient Estate, as the case may be, to have assumed all obligations of this Agreement. 29. Headings. The captions and headings contained in this Agreement are for convenience of reference only and shah not affect the construction or interpretation of this Agreement. 30. Non -Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of the Servient Estate to Grantee, 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. 31. 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. 32. 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 Servient Estate and the improvements thereon. 33. Attorneys' Fees. In the event it becomes necessary for either party to institute legal proceedings to enforce the provisions of this Agreement, each party shall bear its own attorneys' fees through all trial and appellate levels. 34. 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 this 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 Grantee to enter into this Agreement. 35, 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. 38. 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. 37. 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. 38. No Partnership. Nothing in this Agreement shall be construed to rnake the parties hereto partners or joint venturers or render either of said parties liable for the debts or Obligations of the other. 39. 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. 40. Recording. Unless otherwise required by the State of Florida, the parties agree that this Easement Agreement shall not be recorded but That a Memorandum of Easement in the form attached hereto as Exhibit E shall be recorded at the Grantee's expense. IN WITNESS WHEREOF, City and Grantee have executed this Easement Agreement as of the date set forth above. ATTEST: CITY OF MIAMI, a Municipal Corporation of the State of Florida By: By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By Dania Carrillo, Director Jorge L. Fernandez Risk Management Department City Attorney STATE OF COUNTY OF. The foregoing instrument was acknowledged before me this day of 2006, by , as the City Manager 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 Signature: Name: [Print or type) Title: Notary Public Serial No., if any: My commission expires ATTEST: By: CORAL REEF YACHT CLUB, a Florida non-profit corporation By: Print Name & Title Print Name & Title STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of 2008, by , as the City Manager 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 Signature: Name: [Print or type} Title: Notary Public Serial No., if any: My commission expires Exhibit "A" Legal Description of Servient Estate Two abutting parcels of submerged land in Biscayne Bay, lying in Section 22, Township 54 South, range 41 East, Miami, Dade County, Florida, described as follows: Begin at the intersection of the southeasterly extension of the northeasterly line of Lot 16, Block 43 of SAMUEL RHODES AMENDED MAP OF NEW BISCAYNE, and the Dade County Bulkhead Line (U,S. Harbour and Pierhead Line), as recorded in Plat Book "B" at Page 116 and in Plat Book 74, at Page 3-5, respectively of the Public Records of Dade County, Florida, thence run southeasterly along said northeasterly line for a distance of 485 feet; thence deflecting to the right 90° run southwesterly a distance of 253.6 feet more or less to a point of intersection with the southeasterly extension of a line that is 50.0 feet southwesterly of and parallel with the southwesterly line of said Lot 16; thence deflecting to the right 90° run northwesterly along the southeasterly extension of a line that is 50.0 feet southwesterly of and parallel with the southwesterly line of said Lot 16 for a .distance of 502 feet more or less to a point on the Dade County Bulkhead Line, (U,S. Harbor and Pierhead Line); thence deflecting to the right 90° 25' 29" run northeasterly along said Dade County Bulkhead Line (U.S. Harbor and Pierhead Line) a distance of 163.4 feet more or less to a point, which point is an angle point in the said Dade County Bulkhead Line (U.S. Harbour and Pierhead Lines, thence deflecting to the right 10° 48' 01" continuing along said Dade County bulkhead line (U.S. Harbor and Pierhead Line), a distance of 91.7 feet more or less to the point of beginning; said parcel containing 2,92 acres (127,256 square feet) more or less, and; Commence at the intersection of the southeasterly extension of the northeasterly line of Lot 16, Block 43 of SAMUEL RHODES AMENDED MAP OF NEW BISCAYNE, and Dade County Bulkhead Line, (U.S. Harbor and Pierhead), as recorded in Plat Book "B" and Page 16 and in Plat Book 74, at Page 3-5, respectively of the Public Records of Dade County, Florida; thence run southeasterly along the southeasterly extension of said northeasterly line of Lot 16 for a distance of 45 feet to the point of beginning of the parcel herein described; then continue southeasterly along said line a distance of 320.29 feet; thence deflecting to the left 90° run northeasterly a distance of 190 feet thence deflecting to the left 90° run northwesterly a distance of 269.38 feet, thence deflecting to the left 75 ° run southwesterly a distance of 196.70 feet to the point of beginning, continue 1,29 acres (56,129 ft. 2) more or less. 25 5` +a7 20Q Greenleaf-Telesca 1 -SDO CORAL REEF YACHT CLUB 2484 SOUTH BAYSHOR.Z DRIVE Y.4tAMi, FLORIDA Exhibit A EASEMENT AREA SERVIENT ESTATE Two abutting parcels of submerged land in Biscayne Bay, lying in Section 22, Township 54 South, range 41 East, Miami, Dade County, Florida, described as follows: Begin at the intersection of the southeasterly extension of the northeasterly line of Lot 16, Block 43 of SAMUEL RHODES AMENDED MAP OF NEW BISCAYNE, and the Dade County Bulkhead Line (U.S, Harbour and Pierhead Line), as recorded in Plat Book "B" at Page 116 and in Plat Book 74, at Page 3-5, respectively of the Public Records of Dade County, Florida, thence run southeasterly along said northeasterly Fine for a distance of 485 feet; thence deflecting to the right 90° run southwesterly a distance of 253.6 feet more or less to a point of intersection with the southeasterly extension of a line that is 50,0 feet southwesterly of and parallel with the southwesterly line of said Lot 18; thence deflecting to the right 90° run northwesterly along the southeasterly extension of a line that is 50.0 feet southwesterly of and parallel with the southwesterly line of said Lot 16 for a distance of 602 feet more or less to a point on the Dade County Bulkhead Line, (U.S. Harbor and Pierhead Line); thence deflecting to the right 90° 25' 29" run northeasterly along said Dade County Bulkhead Line (U.S. Harbor and Pierhead Line) a distance of 163.4 feet more or less to a point, which point is an angle point In the said Dade County Bulkhead Line (U.S. Harbour and Pierhead Lines, thence deflecting to the right 10° 48' 01" continuing along said Dade County bulkhead line (U.S. Harbor and Pierhead Line), a distance of 91.7 feet more or less to the point of beginning; said parcel containing 2.92 acres (127,256 square feet) more or less. and; Commence at the intersection of the southeasterly extension of the northeasterly line of Lot 16, Block 43 of SAMUEL RHODES AMENDED MAP OF NEW BISCAYNE, and Dade County Bulkhead Line, (U.S, Harbor and Pierhead), as recorded in Plat Book "B" and Page 16 and in Plat Book 74, at Page 3-5, respectively of the Public Records of Dade County, Florida; thence run southeasterly along the southeasterly extension of said northeasterly line of Lot 16 for a distance of 45 feet to the point of beginning of the parcel herein described; then continue southeasterly along said line a distance of 320.29 feet; thence deflecting to the left 90° run northeasterly a distance of 190 feet thence deflecting to the left 90° run northwesterly a distance of 269.38 feet, thence deflecting to the left 75 ° run southwesterly a distance of 196,70 feet to the point of beginning, continue 1,29 acres (56,129 ft. x) more or less. 2 0 rEtT I00 200 Greentecrf-Telesca 7:: 1 "" 1 Elistirkg Marini; Ng CORAL REEF YACHT CLUB 2484 SOUTH BAYSHORE ORIVE WAMI, FLORIDA Exhibit B Insurance Requirements Grantee agrees to have the following policies of insurance in effect and will provide duly authorized certificates of insurance to the Risk Manager for the City of Miami to confirm the existence of such policies of insurance to gain physical access to the parcel(s) of land owned by the City of Miami located on Watson island which are described in this Agreement. Such policies of insurance are to be in effect no later than the date of physical access to such parcels of land by Grantee, its contractors and subcontractors pursuant to this Agreement, except as otherwise noted in this Agreement. Commercial General Liability subject to limits and endorsements as shown below: A. Limits of Liability: Bodily injury and property damage liability each occurrence: $1,000,000 General aggregate limit; $2,000,000 Products/completed operations: $1,000,000 Personal and advertising injury: $1,000,000 B. Endorsements required: City of Miami included as additional insured Employees included as insured Independent contractor's coverage Waiver of subrogation Explosion, Collapse and underground hazard II. Business Automobile Liability A. Limits of Liability (') Bodily injury and property damage liability combined single limit Any auto, including hired, borrowed, or non owned autos any one accident: $1,000,000 B. Endorsements required City of Miami included as an additional insured III, Workers Compensation Limits of liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V, Marine Operators Legal Liability A. Limits of Liability Each Occurrence Aggregate $1,000,000 $1,000,000 Insurance Requirements for Construction of Docks (by General Contractor): Commercial General Liability subject to limits and endorsements as shown below: A. • Limits of Liability Bodily Injury and Property Damage Each Occurrence Genera! Aggregate Limit Products/Completed Operations Personal and Advertising Injury B. Endorsements Required lability $1,000,000 $ 2,000,000 $ 1,000,000 $1,000,000 City of Miami included as an Additional insured Employees included as insured Independent Contractors Coverage Contractual Liability Waiver of Subrogation Premises/Operations Explosion, Collapse and Underground Hazard Loading and Unloading II, Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 B. Endorsements Required City of Miami Included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V. Umbrella Policy A, Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 1,000,000 Aggregate $ 1,000,000 VI, Owners & Contractor's Protective Each Occurrence General Aggregate $1,000, 000 $1,000,000 The City's Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Grantee. The Grantee shall provide any other insurance or security reasonably required by the City. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. 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. Bests 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, Notwithstanding the foregoing, Grantee may cause its independent contractors to provide some or all of the foregoing insurance coverages, and to the extent that such independent contractors carry such coverages, Grantee shall not be required to carry such coverages, so long as the coverages obtained by Grantee and such independent contractors together satisfy the requirements of this Agreement. Exhibit 0 Grantee Corporate Resolution (To be included prior to Execution) Exhibit E Memorandum of Easement This instrument was prepared by: Brian L. Fink, Esq. Catlin Saxon Evans Fink Kolski & Romanez, LLP. 2600 Douglas Road Suite 1109 Coral Gables, Florida 33134 OFFICE FOR USE BY RECORDING MEMORANDUM OF EASEMENT AGREEMENT This Memorandum of Easement Agreement is entered Into on , 200T_, by THE CITY OF MIAMI, a municipal corporation of the State of Florida, (hereinafter referred to as "City" or "Grantor") and CORAL REEF YACHT CLUB, a Florida non-profit corporation (hereinafter referred to as "Grantee"). 1. City and Grantee entered into a SUBMERGED LANDS EASEMENT AGREEMENT ('Agreement") dated as of , 200 , for the purpose of Grantee constructing, maintaining and operating a marina, providing dockage, to drive pilings, place pile caps, slabs, beams and rip rap, run utilities and take such other action as is reasonably necessary to construct and utilize a system of fixed or floating docks and piers, or a combination thereof, over and on the Servient Estate and to maintain and from time to time, to rebuild or reconfigure such system of docks and piers. All of the foregoing is set forth in the Easement Agreement. 2, The term of the Easement is perpetual unless earlier terminated for cause as set forth therein. 3. The Servient Estate that is the subject of the Easement Agreement is described in Exhibit "A" annexed hereto. 4. Copies of the Easement Agreement shall be available from the City of Miami, Department of Public Facilities, 444 SW 2n4 Avenue, 3`d Floor, Miami, Florida 33130. IN WITNESS WHEREOF, the parties have executed this Memorandum of Easement Agreement as of the day and year first written above. Signed, Sealed and Delivered in our Presence: Print Name: Print Name: ATTEST: PRISCILLA THOMPSON City Clerk APPROVED AS TO FORM AND CORRECTNESS: JORGE L. FERNANDEZ City Attorney APPROVED AS TO INSURANCE REQUIREMENTS: Risk Management Print Name: THE CITY OF MIAMI, a municipal corporation of the Stat By: JOE ARRIOLA, City Manager CORAL REEF YACHT CLUB, a Florida non-profit corporation By: Print Name: CHARLES BAUMBERGER, Commodore STATE OF FLORIDA COUNTY OF MIAMI-DADE: THIS INSTRUMENT WAS ACKNOWLEDGED before me this day of , 20, by JOE ARRIOLA, as City Manager of THE CITY OF MIAMI, a municipal corporation of the State of Florida. He is personally known to me or produced as identification and did not take an oath. Print Name: Notary Public, State of Florida My Commission Expires: STATE OF FLORIDA COUNTY OF MIAMI-DADE: THIS INSTRUMENT CHARLES BAUMBERGER, profit corporation. WAS ACKNOWLEDGED before me this day of � 20 , by as Commodore of CORAL REEF YACHT CLUB, a Florida non - He is personally known to me or produced as identification and did not take an oath. Print Name: Notary Public, State of Florida My Commission Expires: