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HomeMy WebLinkAboutExhibitSECOND AMENDMENT TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (PARCELS A. B & C) THIS SECOND AMENDMENT TO THE TEMPORARY CONSTRUCTION EASEMENT • AGREEMENT ("Second Amendment") is made as of , 2008 by THE CITY OF MIAMI, a municipal corporation of the State of Florida ("City"), to and for the benefit of FLAGSTONE ISLAND GARDENS, LLC. a Delaware limited liability company, f1Wa and successor by merger to Flagstone Properties. LLC, a Florida limited liability company ("Flagstone"). RECITALS A. City and Flagstone heretofore entered into that certain Agreement to Enter into Ground Lease, dated January 1, 2003, as subsequently amended by the First Amendment dated December 2, 2004, the Second Amendment dated December 8, 2006, and the Third Amendment dated July _, 2008 to the Agreement to Enter into Ground Lease (collectively, as may be amended from time to time, the "Agreement to Enter Into Ground Lease"). B. Pursuant to the Agreement to Enter Into Ground Lease, City and Flagstone agreed to enter into a Ground Lease (as may be amended from time to time, the "Ground Lease"), subject to and in accordance with the terms and conditions set forth in the Agreement to Enter Into Ground Lease. Unless otherwise defined herein, capitalized terms used herein shall have the meanings given to them in the Ground Lease. C. City is the owner in fee simple of certain upland on Watson Island and certain submerged • land located adjacent thereto (collectively, the "Leased Property"), all as more particularly described in the Ground Lease. D. Pursuant to the Ground Lease, City will lease to Flagstone, and Flagstone will lease from City, the Leased Property, and Flagstone or one or more Major Subtenants will develop and operate a mixed use project thereon (the "Project"). E. City will derive substantial benefits from the development and operation of the Project. F. City is also the owner in fee simple of certain other land located on Watson Island. G. The construction of the Project requires that Flagstone be granted certain easements over, across and upon a portion of Watson Island on a temporary basis for construction staging access and other purposes described herein. H. City has agreed to grant such easements, all as more particularly described hereinafter. The City of Miami Commission pursuant to Resolution No. 06-0026, adopted January 12, 2006 authorized the City Manager to execute the grant of a non-exclusive Temporary Construction Easement Agreement (Parcels A, B, & C) dated December 11, 2007 (the "Original Easement Agreement") for certain designated upland areas (the "Original Easement Area") which the City and Flagstone negotiated, providing for construction use and access to the Project. J. Section 39 of the Original Easement Agreement authorized the City Manager to amend the Original Easement Agreement for temporary uses of the Original Easement Area and the parties accordingly entered into a First Amendment to Temporary Construction Easement Agreement (Parcels A, B, & C) also dated December 11, 2007 ("First Amendment") in order to provide for additional necessary temporary uses of the Original Easement Area. e -o - -J •7 v K. Flagstone has requested for the City to revise and increase the Original Easement Area to include an adjoining submerged area as more specifically set forth in Composite Exhibit A attached hereto, incorporated hereby and made a part hereof in order for Flagstone to repair a certain abutting existing dock area. L. The City Commission pursuant to Resolution No. 08- , adopted 2008 attached hereto, incorporated hereby, and made a part hereof as Exhibit B has authorized the City Manager to execute the grant of this non-exclusive Second Amendment to Temporary Construction Easement Agreement (Parcels A, B, & C) ("Second Amendment") so that the Original Easement Agreement, the First Amendment and this Second Amendment now collectively constitute the 'Easement Agreement" for the amended total "Easement Area" of Parcels A, B, & C. M. Flagstone's authorization to enter into this Second Amendment is attached hereto, incorporated hereby, and made a part hereof as Exhibit C. NOW, THEREFORE, in consideration of Ten and No/100 Dollars and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, City and Flagstone agree as follows: AGREEMENTS 1. Section 2.3 of the Easement Agreement is hereby amended to read as follows: Parcel C: a temporary non-exclusive easement over, across and upon approximately 2-45 acres, as described in Composite Exhibit "A" 1G= attached hereto ("Parcel C"), for the limited purposes of providing ingress and egress to Parcel A and B, and/or for sales and construction offices related to the Project, including but not limited to dredging, underwater debris removal, environrnental mitigation, seawall repair and reconstruction, dock repair, reconstruction or removal, ancillary parking and equipment and materials lay -down; provided, however, that (a) the City reserves the right to eliminate, upon 60 days written notice by the City, the ancillary parking, the equipment and materials lay -down areas on Parcel C while continuing to provide access to the Project if needed for other development on Watson Island, and (b) Flagstone receives the right, and City grants to Flagstone the right, to continue use of Parcel C for its sales and construction offices and ancillary parking for as long as Flagstone needs those uses to continue to be located on Parcel C in connection with the Agreement to Enter and/or the Ground Lease. These parcels may also be used for the placement of temporary or permanent utilities, including but not limited to, underground electrical, water, sewer, telephone, and cable lines as well as natural gas and fuel lines which may be for the exclusive use of any one of the City's island tenants. Said authorization for placement of utilities shall be subject to plans submitted to the Chief Executive Officer for his prior written approval, which approval may be conditioned or withheld in is sole discretion. The above easements are hereby collectively referred to as "Easement Area" and are granted for the. limited purposes set forth herein and for no other purpose unless first approved by the Chief -Executive Officer or his designee, in writing, which consent may be withheld or conditioned in his sole discretion. The City reserves the right to use portions of the Easement Area, for itself or others, as it may require, and Flagstone will not interfere with such shared use and if necessary, will relocate equipment that may be located in the Easement Area and/or make additional alterations, at Flagstone's sole cost, to provide for such shared use. Flagstone may implement reasonable security measures provided they are coordinated and approved by the Chief Executive Officer. 2. Ratification. City and Flagstone hereby ratify and confirm the Original Easement Agreement and the First Amendment and acknowledge and agree that the Original Easement Agreement remains in full force and effect without modification, except as specifically set forth in the First Amendment and this Second Amendment to the Easement Agreement, and without default by either party. 3. Headings. The captions and headings contained in this Second Amendment are for convenience of reference only and shall not affect the construction of interpretation of this Second Amendment. - 4. Amendments. No amendment of any provision of this Second Amendment or the Original Easement Agreement or the First Amendment shall in any event be effective unless it is in writing and signed by the party against whom enforcement is sought. 5. Severability. Any provision of this Second Amendment 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 Second Amendment that if any provision of this Second Amendment 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. 6. Binding Effect; Assignments. This Second Amendment shall be binding upon and inure to the benefit of the City and Flagstone and their respective successors and permitted assigns. 7. Governing Law. This Second Amendment shall be governed by, and construed in accordance with, the laws of the State of Florida, without application of its conflict of law principles. 8. Entire Easement Agreement. The Original Easement Agreement, as amended by the First Amendment - .and - this Second Amendment, together with all easement agreements, license agreements and Subordination, Non -Disturbance and Attornment Agreements executed in connection therewith or otherwise contemplated thereby, embody and constitute the entire understanding between City and Flagstone, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, with respect thereto are merged therein. 9. Counterparts. This Second Amendment may he 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 Second Amendment by signing any such counterpart. IN WITNESS WHEREOF, City and Flagstone have executed this Second Amendment as of the date set forth above. Attest: THE CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Priscilla A. Thompson, CMC Pedro G. Hernandez City Clerk City Manager APPROVED AS TO RISK REQUIREMENTS APPROVED AS TO FORM AND CORRECTNESS By: By: LeeAnn Brehm, Administrator - Julie O. Bru, City Attorney VVitness: FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company By: Print Name: By: Print Name: STATE OF COUNTY OF By: Flagstone Development Corporation, a Delaware corporation Its Manager By: Mehmet Bayraktar President The foregoing instrument was acknowledged before me this day of , 2008, by , as the Chief Executive Officer of the City of Miami, a municipal corporation of the State of Florida, on behalf of the City. -Personally Known or Produced Identification Type of Identification Produced Signature: Name (Print or Type] Title: Notary Public Serial No.: My commission expires: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 2003. by Mehmet Bayraktar, as President of Flagstone Development Corporation, a Delaware corporation, as Manager of FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, on behalf of each company. Personally Known or Produced Identification Type of Identification Produced Signature: Name [Print or Type] Title: Notary Public Serial No.: My commission expires: