HomeMy WebLinkAboutExhibit 4Exhibit C
Flagstone's corporate authorization
(To be included at the time of execution)
Revised Draft 08-1759
8
1111111 I I11111111111I 1111111111111111 I II 11111
CFN 2007R1177417
OR Bk 26102 Fss 2922 - 29557 (34se
RECORDED 12/12/2007 12:29:28
HARVEY MIN. CLERK OF COURT
MIAMI-DADE COUNTY, FLORIDA
IEMPQRABY Cgf{STRUCTION EASEMENT AGREEMENT (PARCELS A. B 1 Cj
THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT ("Agreement') la made as of
i I ,r2ct 2005 by THE CITY OF MIAMI, a municipal corporation of the Slate of Florida ("rem%
to and faf the benefit of FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company,
flk/a and successor by merger to Flagstone Properties, LLC, a Florida limited liability company
("F(agetone"),
RECITALS
A. City and Flagstone heretofore entered Into that certeln Agreement to Enter Into Ground
Lease dated January 1, 2003 (as may be emended from time to time, the "Agreement to Enter Into
Ground Lease').
B. Pursuant to the Agreement to Enter Into Ground Leese, City and Flagstone agreed to
enter into a Ground Lease In the form attached thereto es Exhlbll'C' (ea may be amended from time to
dme, 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
shell 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 certeln submerged
lend located adjacent thereto (collectively, the "Leased Properly'), all as more particularly described In the
Ground Lease.
D. Pursuant to the Ground Lease, Clty will lease to Flagstone, end Flagstone will lease from
City, the Leased Property, and Flagstone or one or more Major Subtenants will develop and operate a
mixed use project (hereon (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 conetructfon of the Project requires that Flagstone be granted certain easements
over, across and upon a portion of Watson Island on a temporary heels for construction staging access
and other purposes described hereln.
H. Clty has agreed to grant such easements, all as more particularly descrlbed herein.
NOW, THEREFORE, In consideration of Ten and No/100 Dollars and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the parties, Clly and Flagstone
agree as follows:
AGREEMENTS
1. Recltatat. The foregoing recitals are true and correct and are incorporated herein as If sel out in
Suit In the body of this Agreement.
2. Grant of Easementit. City hereby grants to Flagstone and Its employees, agents, contractors,
subcontractors, invitees end guests:
2.1 Parcel A: a temporary non-exctusIve easement over, across and upon
approximately 8.53 acres, es described In Exhibit "A" attached hereto (Parcel A"), for the limited purpose
Condruclron sUpine Easement Flnat 01-03-0e
A(
of construction staging, and/or sates and construction offices related to the Protect and equipment and
Materials lay -down.
2.2 Parcet B: use from lime to time and subject to availability, as determined by the
Chief Executive Officer or his designee, of a temporary non•eliclualve easement over, across and upon
abproximately 1,11 acres, as described In Exhlbll "B' attached hereto ('Parcel B"), fa the limited purpose
o construction staging end/or sales and construction offices related to the Protect and equlpmenl and
naterials fay -down.
2.3 Parcel C: a temporary non-exclusive easement over, across and upon
epproximately 2.15 acres, as described In Exhibit "C" attached hereto ("Parcel C'), for the limited burpose
of providing ingress and egress to Parcel A and B, and/or for safes and construction offices related to the
Ptoject and equipment and materiels lay -down; provided, however, that the City reserves the right to
eliminate the equipment and material lay -down areas on Parcel C while continuing to provide access to
the Project If needed for other development on Watson 'stand.
These parcels may also be used for the placement of permanent utilities, Including but not limited
to, underground efeclrical, water, sewer, telephone, and cable lines as well as natural gas end fuel lines
which may be for the exclusive use of any one of the City.* Island tenants, Said authorization for
placement of utilities shall be subject to plans submitted to the Chief Executive Officer far his prior written
approval, which approval may be conditioned or withheld In is sdte discretion.
The above easements are hereby collectively referred to as'Eaeement Area' and are granted for the
limited purposes set forth herein and for no other purpose unless firs) approved by the Chief Executive
Officer or his designee, In writing, which consent may be withheld or condltjoned 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 wet not Interfere with such shared use and If neceedary, will relocate equipment that may be
located in the Easement Ares end/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.
3. OperatPon4. Flagstone shall, at Its sole cost and exbanse, make any and all Improvements
required for its use of the Easement Ares. Flagstone shall regulate the installation and its future
operatlons of the Easement Area so es not to conflict or interfere with operations of the Clly, Its tenants,
subtenants, sub -subtenants, licensees, agents, successors, and assigns and the general public. In the
event Flagstone's use or operations conflicts with the operations of the Clty, Its tenants, licensees,
agents, successors or assigns, or the general public, the City, or Its successors or assigns, shall have the
right. to Impose reasonable rules end regulation!' to govern the use of the Easement Area so as to
eliminate or minimize such conflicts and/or interference; provided, however, that the City shell, to the
extent practicable, afford Flagstone reasonable access to and use of the Easement Area at all limes,
Flagstone shall not encroach beyond the boundaries of the Easement Arse. Should the
Easement Area be abandoned or discontinued by law or otherwise, said easements shell cease and
revert with the right of Immediate possession and right of entry to the City or Its successors In interest,
upon the City providing Flagstone thirty (30) days' advance written notification of such action, and
Flagstone's failure to reactivate usage of the Easement Area within such thirty (30) day period.
4. Channels end Additions to Easement Are!. City reserves the right et any time and from lime to
time end at its sole cost end expense, to make or permit changes or revisions to the Easement Area, _
Including additions lo, subtractions from, rearrangements of, alterations of, and modifications of, the
Easement Area. Notwithstanding the rights of Clty above, In the event the change or revision (I) affects
the functionality of the Easement Area, or (II) materlaily and adversely affects Flagstone's use of the
Easement Area, Flagstone's prior written consent to such change or addition shall be required, which
consent shall not be unreasonably wllhheld or delayed.
Conslrucrlon Staging Final0b03.06
5. Condlllon of the Property. Flagstone accepts the Easement Area 'as -is", In Ile present
condition and state of repair and without any repreeentetion by or on behalf of City, and agrees thel City
shall, under no circumstances, be liable for eny latent, patent or other defects In the Easement Area.
Flagstone, at Its sole coat, shell maintain the Eminent Aree (other than Any portions used by others as
authorized by the City) in good order and repair at ell times and In an attractive, clean, safe and sanitary
condition and shall suffer no waste or Injury Ihereld. Flagstone shell be responsible for ell repairs to tho
Easement Area required or caused by Flagstone's use of any pert thereof.
6. Expense and Maintenance peepdnelbllltle 1, Flagstone Shell design, construct, Install,
maintain and repair any Improvements requited for Ile use of the Ea3einent Area, Including, but not
limited to, all related Infrastructure Improvements, drainage, lighting, and pavement, at Flagstone's sole
cost and expense. Flagstone shall keep the Eaaerhent Area (other than ahy portions used by others as
authorized by the City) in a safe, sighlty, good and functional condition durlhg the term of this Agreement
at Flagstone's sole cost and expense. All Work performed by or on behalf of, Flagstone shall be conducted
in a lien -free manner. Not lees than thirty (30) days prior to the Effective Date, which may run
concurrently with the 30 day notice period provided for In Sections 13 and 22, Flagstone shall submit
plans and specifications for the InlIlal Improvements to be constructed Or installed within the Easement
Area, which piens and specifications shall de subject to the Chief Executive Officer's prior written
apprdval. Flagstone shall submit to the Chief Executive Officer proof of funding and/or Its financing plane
along wllh the plans and epeclfloellons. For pdrposes of this Agreement) Improvements may Include, but
not bb limited lo, construction trailers, building, fencing, barricades, slgnage, utilities and construction
equipment and apparatus.
In the event Flagstone elects lo make additional improvements (hereinafter "Alterations'),
Flagstone shall submit plans and specifications for such Alterations, to the Chlef Executive Officer for his
prior written approval. The approvals of the Chief Executive Officer pursuant to thls Section B, shall be
made In accordance with the Chief Executive Officer Procedures; provided, however, that any
improvements that will remain on the Easement Area after the expiration of thrill Agreement shall be
subject lo the Chief Executive Officer's prior Written approval In his sole diacrellon. Flagelone shall be
solely responsible for any end all costs asedciated with any Alteration, Including, but not limited to,
design, construction, Installation and permitting coats. All Alterations to the Easement Area, whether or
riot by or et the expense of Flagstone, shall, unless otherwlse provided by written agreement of the
partlea hereto, immediately upon Ihelr completion become the properly of the City and shall remain
Surrendered with the Easement Area unless removed by Flagstone. In the event of an emergency,
Flagstbne may reasonably proceed to perform such repair work and shell Immediately notify the City of
such work.
Flagstone shell provide all construction, maintenance end use of the Easement Area In a manner
that will minimize any unreasonable interference wllh the use and operations of the City, Its tenants, sub-
tenanls, sub -subtenants, licensees, agents, successors, and assigns and the general public,
7. Mechanics' Elens, Flagstone shall not knowingly sutler or permit any mechanics' Hens to be
Pled agafnsf the title to the Easement Area by reason of work, labor, services or materials supplied to
Flagstdne or anyone having a right to poseassion of the Easement Area is a result of an agreement with
Flagaldne acting, with or without Flagstone's consent. Nothing In this Agreement shall be construed as
constituting the request of the City, expressed or Implied, by inference or otherwise, to any contractor,
subcontractor, laborer or rnaterlalman for the performance of any labor or the furnlehing of any materials, for
any specific work on the Easement Ares nor as giving Flagstone the right, power or authority to contract for
or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of
any mechanics' Hens against the Clty'a interest in the Easement Area. Van)/ mechanics' lien shall at any time
be fled against the Easement Area by reason of work, labor services or materials supplied to Flagstone, Its
tenants, subtenants, contractors or subcontractors, Flagstone shall cause It 10 be discharged of record (by
bonding, notice Of bond or otherwise) within thirty (30) days after the date that it has notice of its filing;
provided, however, That Flagstone shall not be required to pay or discharge any mechanics' lien within the
thirty (30) day period, so long es Flagelone shall In good faith proceed to contest the Ilan by appropriate
proceedings or shall furnish reasonably satlafaclory evidence That funds are or will be available to pay the
Conalrucllon Slaaing Final 01.03-0e
amount oe the contested lien claim with all Interest,on It and costs and expenses, Including reasonable
altomby's fees to be incurred in connection with il. II Flagslens does not: i) cause a mechanics lien to be
discharged of record within thirty (30) days after the date Flagstone has notice of the flung of a lien; dr h) In
good faith bloused to contest the lien by appropriate proceedings within the thirty (30) day peridd, then
Flagstone shall be In default of This Agreement
8. Ujl)itlea. Flagstone shall pay for all utilitlea, Including, but not limited to, electricity; Water,
rnW elorater fees, gas, telephone, garbage and aewdge disposal used by Flagstone during its occupancy
of the Easement Area pursuant to this Agreement, as well as alt coats for Installation of any 'Mee and
equipthent needed by Flagstone, its tenants, subtenants, contractors or subcontractors. Flagstone, et Its
sole cbst, Shall install all utilities required for Its use and Inetall sebarale utility meters required thereby
and snap be billed directly by the applicable ulllity cornpeny for such Services,
9, AdvveFlagstone !hall not permit any slgns or advertising matter to be plated either In
the Inter or r upon the exterior of the Easement Area wlthcwt havklg first obtained the approval of the
Chlof Executive Officer or his designee in accordance with the Chief Executive Oltlbe Approval
Procedures. Flagstone shall, at Its sole cost and expense, install, provide and maintain such sign,
decoration, advertising matter or other things as may be permitted hereunder In good condltidn and repair
at all Ulnas. Flagstone mull further obtain approval from all ppovernniental authorities having )urisOlcllon,
and m'ust'comply with all applicable requirements set forth in the Clty of Miami Code and Zoning
Ordlnahce: Upon the cancellation of thls Agreement, Flagstone shell, al its sole cost and expense,
remove arty sign, decoration, advertising matter or other Ihing permitted hereunder from the Easement
Area sirbJebt to Section 10 below. If any part of the Easement Area Is In any way damaged by the
removal cif Such Items, said damage shall be repaired by Flagstone at Its Bole cost and expense. Should
Flagstone fah to repair any damage caused to the Easement Area Within ten (10) days after receipt of
written notice from Cily directing the required repairs, City shall cause the Easement Area to be repalred
at the sole cost and expense of Flagstone. Flagstone shall pay Clty the full cost of such repairs within Ave
(5) days of receipt of en invoice Indicating -the boat of such required repairs. Flagstone hereby
underslenda end agrees that the City may, et Its sole discretion, erect or place upon the Easement Area an
approprlate Sign Indicating that the City has entered Into !hie Agreement.
10. Owhershlo of Imorovernente, As of the Effective Date and throughout the Term, title to all
buildings and Improvements on the Easement Arda shall be vested In Flagstone, unless othenv)se
provided by other written agreement
11. Removal of Property, In the event of termination of this Agreement, or upon the expiration of
the term of thin Agreement, Flagstone shell promptly remove all personal properly, flxtured and
equipment from the Easement Aree, and 11 the City so requires by written notice to Flagstone, Flagstone
shall also promptly remove any buildings and other improvements constructed or caused to be
constructed by Flagstone on the Easement Area. In the event Flagstone faits to remove Its personal
property, equipment and fixtures, and any such buildings and other Improvements so designated by the
City froth the Easement Area within thirty (30) days period after the termination of thls Agreement, said
property shall be deemed abandoned and thereupoh shall become the sole property of the Clty. The
City, at Ito sole discretion and without liability, shall remove the same and Flagstone shall reimburse the
City for ell reasonable expenses associated with such removal and disposal. Any and all improvements
made to the Easement Area, other than those portions used by other parties not under Flagstbne'a
control, Shell be done el the sole cost, expense and risk of Flagstone, No repayment for Investment shall
be made to Flagstone If the Ground Lease Is not executed for Flagstone's failure to comply with all
requirements under the Agreement to Enter into Ground Lease. Flagstone has agreed to perform ell work
In the Easement Aree required for Its use, at Hs sole cbst and expense.
12. pestoratlon of Easement Ares, In consideration of the granting of this Agreerhent,
Flagstone shalt provide Chief Executive Officer eppfoved services and construct improvements to the
Easement Area at a cost of up 10 $1,000,000 to improve the open space area. Such Improvements may
include, but not be limited lo, master planning of Southaide Park, open alr pavilion or covered support
facility, fencing, removal of Invasive trees and plants, underground utilities, park pathways, bicycle end
Construction Butting fins 01.034e
jogging trails, public reetroom facilities, security camerae and/or devices, and parking area. Flagelone, at
1te sole cost, agrees to repair and restore the Easement Area to a condition batter than 11 was delivered to
Flagstone and In substantial accordance with the Master Plan for the South Side Perk 10 be approved by
the City. Such restoration shall be done prior to the exp!ralldn of this Agreement.
13. Notices to Chief Executive OffloeF, Pridr to .commencing the Initial Conslructfori and
Mobilization of the Easement Area, Flagstone shall give the Chief Executive Officer or his designed Thirty
(30) days' prior wrlllen notice, deectibing the anticipated cdrnmencement (fate(e) and completion date(s)
With respect to same,
14. Compliance WIlh Permits and Lawe, In connebl(dn with the construction, maintenance and use
at the Easement Area, legstone shall: (I) obtain and Maintain ell required permits end approvalti from
abplicebte Governmental Authorities having jurisdiction dr regulatory authority over same; and ((I) comply
With all Applicable Lawe with respect 10 the Easement Area, Including, but not limited, to Chapter 713,
F.S.
15. insurance, In connection with the Easement Area, Flagstone shall obtain and maintain or bause
td obtained and malnlalhed throughout the term of this Agreement the lydes and amounts of instirance
coverages set forth In £zhibit D, attached hereto and Incorporated herein b11 this reference.
18. Indemnity, Flagstone shall indemnify, defend and save harmless City and City's succee,sars,
.perk i1ted assigns, officials, employees and agehte (the ',COY Indemnified Parties') from end spinet any
and se claims, actions, proceedings, damages, losses, liabilities, costs and expenses (Including, Without
ilinItation, reasonable attorneys' fees and coats), arising out of, or resulting from, any personal injury, loss
of life or damage to property, which shall occur In, on dr over the Easement Area In any way conr(eclod
td, construction, installation, maintenance and repairs which Flagstone Its tenants, subtenants, contractors
or subcontractors perform or cause to be performed in the Edsemenl Aree end the use of the easemonta
described herein (the "Indemnified Matters"). In cese any action or proceeding Is brought against City by
reason of any of the Indemnified Matters, the Indemnifying party, upon sixty (60) days' written notice from
City, shell, at the indemnifying party'' expense, resist or defend the action or proceeding by counsel
reasonably satisfactory to City. Clly shall also be entltted lb appear, defend, or otherwise lake pert In
such action or proceeding, el its election, and at the Bole expense of City by counsel located within
Miaml-Dade County, Florida of Its own choosing, provided That (I) such action by City shall not 1111111 or
make void any liability of any Insurer of Flagstone or City with respect to the claim or matter in gustation;
and (II) City shall not, without Flagstone's prior Written consent, settle any such action or proceeding or
Interfere with Flagstone's defense or prosecution of such action or proceeding. The provisions of this
Section shall survive the expiration or termination of this Agreement.
17. No Liability, In no event shall the C(t)t be liable or responsible for Injury, loss or damage to the
property, Improvements, fixtures end/or equipment belonging to or rented by Flagstone, Its officers,
agents, employees, contractors, and sub -contractors, Major Subtenants, assigns, Invitees or patrons
occurring In or about the Easement Ares that rney be stolen, destroyed, or in any way damaged,
Including, without limitation, fire, flood, steam, etecIrlolty, gas, water, rain, vandalism or (haft whkh may
leek or flow from or Into any part of the Easement Area, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliance', plumbing, air conditioning or lighting fixtures on
the Easement Area, or from hurricane or any act of God or any act of negligence of any user of the
fabilltles or occupants of the Easement Area or any person whomsoever whether such damage or Injury
results from conditions Brisling upon the Easement Area or upon other portions of the Easement Aree or
from other sources. Flagstone indemnifies the City, its officers,. agents and employee' from and against
any and ell such claims even If the claims, coots, Iiabllltlee, eults, 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 30 long as they are acting within their scope of
employment.
Flagstone acknowledges that, es lawful consideration for being granted the right to utilize and
occupy the Eesemenl Area, Flagstone, on behalf of Itself, Its agents, invitees, employees, contractors,
CoralruclIon Sawing F 'nil O1.03-0e
and sub -contractors does hereby release from any legs! liability the Cily, Its officers, agents and
employees, Itom any and all Claims for Injury, death or properly damage resulting from Flagstone's use of
the Easement Area.
Flagstone further agbea that It shall be respons!ble for providing security whenever personal
property either owned or used by Flagstone, Its employees, agents, contractors, or subcontractors is placed
in the Easement Area, Including property necessary for set-up and dismantling the cohstruction mobilization,
regardless of whether or not the Project Is open to the general public.
18. Safety, Flagstone and each of Its employees, agent!, officers, contractors and subcontractors
shaft allow the Clty Inlpectofs, agents or representatives the ability to monitor obmpliance with safety
prebautlons as required by federal, stale or local laws, rules, regulations and ordinances. By performing
Theta Inspections, the City, Ile agents, or representatives are net assuming any liability by virtue of these
law', rules, regulatiorle and ordinances. Flagstone and each of Its employees, agents, officers,
contractors and subcoritrectoie shall have no recourse against the Clty, Ile agents or representatives from
the occurrence, non-occurrence or result of such Inspectlon(s): Simultaneously with the Effective Dale,
Flagstone shall contact the CIty'a Risk Management Department Safety Unit in writing to coordinate such
Inepectlon(e),
19. Americana With Disabilities Act. Flagstone and each of Its employees, agents, officers,
contractor' and subcontractors shall affirmatively comply with all applicable previsions of the Americans
Mgt Disabilities Act ("AbA"), including Titles I and II of the ADA (regarding nondiscrimination on the basis
of disability) and all applicable regulations, guidelines end slendards. Additionally, Flagstone and each of
its employees, agents, officers, contractors and subconlreclore shall lake affirmative steps to ensure
nondiscrimination in the employment of d!sabled persons.
20. Taxes. Flagstone covenant' and agrees to pay all taxes of whatsoever nature lawfully levied or
aeseased against Ihei Easement Area other than those portions used by other parties that ere not under -
Flagstone's
control and Improvements, property, sales, rents or operations thereon, including but not
lied to, ad valorem taxes but only as applicable to !ha term Of lhls Agreement. CO shall provide to
Flagstone any lax bits received within Ilfleen (15) days o1 reoelpt. Payment thereof shalt commence with
end shall Include texea, It any assessed for then current year. Flagstone further covenants and agrees to
pay at of the said Wee, If any, lawfully eseeeaed, on such dates as they become due and payable. In
the event Flagstone raga to pay the real property taxes by April 1" of each year, Flagstone shall be
responsible to pay the City a late fee equal 10 5% of such overdub amount. The parties hereby agree that
such late charge repreeenls a fair and reasonable estimate of the costa the Clty will Incur by reason of
late payment by Flagstone. Acceptance of such late charge by the City shell not constitute a waiver of
Flagstone's default with respect to such delinquent amount, nor prevent the Cily from exercising any of Its
other rights and remedies or al law or In equity. Any real properly taxes not pall by April 1" of each year
shall bear interest at Me role of 12% per annum, commencing on April 1. Flagstone shall pay ouch
interest 10 the City. Payment of such Interest shall not excuse or cure any default by Flagstone under this
Agreement.
In the event that Flagstone becomes delinquent In the payment of real property taxes, the Clly,
upon providing written notice to Flagstone, may require either of the following, at Its sole option: (1)
Flagstone to escrow monthly to she 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
lax Increases. Said amount shell be pald on the first day of each month. In the event the amount
esctowed le not sufficient to pay the full amount of faxes due, Flagstone shall pay the difference to the
City for remittance to the County within fifteen (15) days of receipt of notice from the Clty of the amount of
such deficiency. In the event the amount of monies escrowed are in excels of the taxes due, the balance
shell be applied to the following yeare tax payment; or (2) Flagstone shall enroll in the Dade County Ad
Valorem Tax Peymenl Plan.
Construction shying FIna101-03.0e
Falter* of Flagstone to pay the real property taxes when due and any late fees In connection
t eerawIM, to pay a monthly real estate tax escrow to the City, or to enroll in the Dade County Ad Valorem
Tax Payment Plan es aforesatid shrill constitute an event(s) of default under this Agreement.
Notwithstanding the Voregoing, Flagstone shell have the right to appeal or contest the Imposition
of anir texas end/or the assessed values In accordance with applicable few.
21. Em neat Qbmoin. In the event the whole or any part of the Easement Area 13 taken by right of
eminent domain or+any similar authbrtty of law (a 'Taking'), the entire award for the value of the land and
improMemenls so taken shell belong to the Clty, and Flagstone shall nol have a right to claim any portion
of suite award by Virtue of any Interest created by this Agreement. Flagstone may, however, file a
cotlaliiral claim with the condamning authority over and above the value of the land boing so taken to the
. extent of any damage ,uttered by Flagstone resulting from the severance of the land or lmprovemerits so
taken If Such claim Shad not ojaerata, to reduce the award allocable to the City of the Taking. In the event a
portbh of Parcel A Is slrbject to a Taking, the City shall use reasonable efforts to Identity and facilitate
alternative elaghg areal.
22. Igoe. FlapeIorie shall provide the Chief Executive Officer with no tees then thirty(30) days' prior
written note of the date oh whlbh Flagstone requlree to commence 1Jtlllzing the Easement Area
(here halter the 'Effective Oatb'). The term of this Agreement shell expire oh the earlier of one (1) year
alter ihe Occupancy Date or such earlier date as Is mutually agreed upon by the parties; provided,
the tin twara►er, thts greement shall sooner terminate If the Agreement to Enter Into Ground Leese Is
termtnasted or expires In accordance with ite terms (without the Ground Lease having bean mutually
etesculsd and delivered), or the Giound Lease Is terminated or expires In accordance with Its terms
(whereupon the easements granted herein shall be deemed eutomallcally'terminated end of no ftriher
Faroe or effect). Upon termination of this Agreement, ell rights and privileges derived thorn, and all duties
and obfigstlone creaked and kenos/id by the provisions of this Agreement, shalt terminate end hev`e no
further fence or effect; provided, however, that the termination of thle Agreement shell not limit or effect
any remedy et law dr in equity that elther party may have against any other parties with respect td any
liability or obligation arising or to be performed under this Agreement prior to the date of such termination.
23. glecurltr DN . The Sedurlly Deposit (the 'Security') required pursuant to the Agreement to
Enter Into Ground Lease and the Ground Lease, as applicable, shall also serve as security for the faithful
performance by Flagstone of ell prevision' of this Agreement, If Flagstone Is In violation beyond any
applicable notice or cure peridd, the City may use apply or retain all or eny part of the Security for the
payment of (t) soy fee or other sum of money which Flagstone was obligated to pay but did not pair, (ii)
any sum expended by Clty on Flagstone's behalf In accordance with the provisions of this Agreement, or
(1U) any sum which the City May expend or be required to expend sea result of Flagstone's default
hereunder beyond any applicable notice end cure period, The use, application or retention of the Security
or any portion theme( by the City shall not prevent the Clly from exercising any other right or remedy
provided for under this Agreement or at law and shall not limit any recovery to which tha Clty may be
entitled otherwise. At any time or times when the City has made any such application of all or any part of
the Security Deposit, Flagstone shall deposit the sum or sums equal to the amounts so applied by Clty
within ten (10) days of written notice by the City.
24. J;omotlanca with JEnvIro,mentaJJ,aws, Flagstone represents and warrants Mel during
the lam of t le Agreement, It will not use or employ the Easement Area, or any other Clty-owned
property, to handle, transport, store or dispose of any Hazardous Materiels end that It will not conduct any
activity on Easement Area or City -owned property in violation of any applicable environmental laws.
I lotmVhstanding the foregoing, Flagstone may handle, transport, store or dlepoea of Hazardous Materials as
necessary for Flagstone's Protect on the Easement Area as long as such handling, trensportellon, storage
end disposal is performed In strict compliance with all applicable laws end regulations, Flagstone hereby
trhdernnlllee end holde harrnleaa the City and their respective officers, employees and agents, from and
against all actions end lablllUee relating to Flagstone's handling, transponation, storage and disposal of
Hazardous Materials on or about the Easement Area or City -owned properly. The requirements of this
paragraph shell survive the cencelleUon, revocation, termination or expiration of this Agreement.
Construction Stginq Fins! 01-03-0e
23. jprdoue Materials. In connection with Its activities hereunder, Flagstone shall, at Its sole
cost and expense, at all times and in all respects comply with ell federal, state and local laws, statutes,
ordinances and regulations, rules rulings, policies, orders and adminlslrative actions and orders relating
to hazardous materiels ('Hazardous Materials Lowe'), Including, without Ilmitalion, any Hazardous
Malariale 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 materiels, substances or wastes, Including without limitation, any "Hazardous Substances",
'Hazardous Wastes", "Hazardous Materiels' or "Toxic Substances" (collectively "Hazardous Materials"),
under any such taws, ordinances or regulations. In connection with Its activities hereunder, Flagstone
shall, at its sole cost and expense, procure, maintain In effect and comply with all conditions of any and all
permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous
Materials within, on, under or about the Easement Area or required for Flagstone's use of any hazardous
materiels In or about the Easement Area in conformity with all applicable Hazardous Materials Laws and
prudent Industry practices regarding management of such Hazardous Materials. Upon cancellation,
revocation, termination or expiration of this Agreement, Flagstone shell, at its sole cost and expense,
cause all Hazardous Materials, including their storage devices, placed in or about the Easement Area by
Flagstone ar al Flagstone's direction, to be removed from the Easement Area and transported for use,
storage or disposal in accordance and compllenee with all applicable Hazardous Material* Laws.
Flsgalone may operate according to the custom of the industry so long as the use or presence of
Hazardous Materials Is strictly end properly monitored according to, and in compliance with, all applicable
governmental requirements. The requirements of this paragraph shall survive the cancellation,
revocation. termination ar expiration of this Agreement.
The Ciiy represents That:
(I) To the best of Us knowledge, there ere no environmental violations, whether under
federal, state, or local laws, existing on the Easement Area;
(10 To the beat of its knowledge, there are no Hazardous Materials presently existing on
the Easement Area.
26. petaul(, If prior to the mutual execution and delivery of the Ground Lease, Flagstone in any
manner defaults in the performance of Ole Agreement, the Chief Executive Officer may give written notice
to Flagstone of such default. If Flagstone fails to cure such default within fifteen (15) days after written
notice Is given to Flagstone (or such longer period as may be reasonably necessary to cure ouch default),
the City may elect to: (I) Terminate this Agreement: (II) proceed to enforce the performance bonds)
obtained in connection with this Agreement; or (III) pursue any other remedy avallabia at law or in equity,
lf, after the mutual execution and delivery of the Ground Lease, Flagstone In any manner defaults In the
performance of thla Agreement, the Chlef Executive Officer may give written notice to Flagstone of such
defaull, and If the Chief Executive Officer does so, the Chief Executive Officer shall contemporaneously
give e copy of such notice to any Approved Mortgagee, provided that such Approved Mortgagee has
theretofore given the City written notice of its address for notices end acknowledged In writing its cure
rights hereunder. If Flagstone or such Approved Mortgagee falls to cure such default wilhln fifteen (16)
days after written nonce le given to Flagstone and such Approved Mortgagee (or such longer period as
may be reasonably necessary 10 cure such default), the City may elect to: (I) terminate thls Agreement: (II)
proceed to enforce the performance bond(s) obtained In connection with this Agreement; or (iii) exercise
such rights and remedies as the City may have under the Ground Lease on account of Flagstone's failure
to perform its obligations hereunder.
27. noting. AU notices and other communication under this Agreement shall be In writing and shall
be deemed to have bean duly given or made In the manner required by the Agreement to Enter Into
Ground Lease (and after the Ground Lease is mutually executed and delivered, In the manner required by
ibe Ground Lease). •
28. Aselintnent: flndlna Effect. This Agreement may not be assigned, pledged, transferred or.
encumbered except in connection with any such assignment, pledge, transfer or encumbrance of the
Ground Lease as Is permitted by the terms of the Ground Lease. Without limiting the generality of the
Conerrucrron Sraelna Pinar o1.ei-oe
foregoing, it is acknowledged and agreed that Flagstone may assign this Agreement In whole or In pert to
any Major Subtenant(s), and that Flagstone or any such Major Sublenant(e) May pledge end encumber
its rights hereunder In favor of any Approved Mortgegee(s). This Agreement shall be binding dpon; and
Inure to the benefit of City and Flagstone and their respective successors and permitted assigns. Every
agreement, covenant, promise, undertaking, condition, easement, right, privilege, option and restribtlon
made, granted or assumed, as the case may be, by any party to this Agreerrient shall run with the fend
and constitute an equitable Servitude on the Easement Area, for the benefit of the Project as bro111ded
herein. Any transferee of any part of the Easement Area shall automatically be deemed, by acceptance
of the title to any portion of the Easement Area, ea the case may be, 10 have assumed all obligations of
this Agreement,
2B. Headlnns. The carillons and headings contained In this Agreement are for convenience of
reference only and shall not effect the construction or Interpretation of Ihls Agreement.
3D pion•DedIcatton. Ndthing contained in this Agreement shall be deemed to be a gift or dedication
of any portion of the Easement Area ID Flagstone. it being the Intention of the parties hereto and their
Successors and assigns Mai nothing In this Agreement, expressed or implibd, shall confer upon any
Person other than the parties hereto and their successors and aselgne, any rights or remedies under or by
reason of thle Agreement.
31. 8evecablJlty. Any Provision of thls Agreement which is prohibited or unenforceable in any
Jlrrlsdictlon shall, as to such Jurisdiction, be Ineffective to the extent of such prdhlbltlon or unenforceabillty
Without Invalidating the remelning provisions hereof or affecting the validity or enforceability of slrch
Provision beyond such extent or In any other jurisdiction, It Is the intention of the parties to trite
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 shell have
the meantng which renders It valid,
32. )?esponsibylty, Notwithstanding anything to the contrary contained In this Agreement, each
party 10 this Agreement shall be liable and responsible for the obligations, covenenle, agreements, rind
responsibilities created by Ihb Agreement and for any Judgment rendered hereon onty to the extent of its
respective Interest in the Eesetnent Area end the Improvements thereon.
33. Attorneys' Fees. In the event of any litigation or arbitration between the patties, at expenses,
Including reasonable allorneys' fees end court costs at both the trial and appellate lavete, Incurred by the
pFevallIng party, shall be paid by the non•prevalfing party. The term "attorneys' fees' shall be deemed to
• Include, without limitation, any' paraprofessional fees, Investigative fees, administrative costa and other
charges billed by the etiornej' to the prevailing party (Including any fees and costa associated with
collecting such amounts). The provisions of this Agreement shall survive the expiration or termination of
this Agreement,
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 oul 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 Cily and Flagstone to
enter Into this Agreement.
35. Arbitration. Any dispute arising under this Agreement shall be submitted to binding arbitration In
the manner set forth In Article XVII of the Ground Lease,
38. No Third Partv Beneflclarlee. Nothing In This Agreement shall confer upon any parson, other
than the parties and their respective successors and permuted assigns, any rights or remedies under or
by reason of this Agreement.
Consuuction Singing Final 01. 3-08
747
37. ConetruclloJ, Both parlieS substantially bontributed to the preparation and negotiation of this
Agreement; Accordingly, this Agreement shall riot be construed against the party responsible for
preparing it.
38. Gev,fnine 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 pinciples.
39. !mire Agreement;. Thin Agreement embodies and constitutes the entire understanding between
City and Flagstone concerning the Easement Area, and ell pfbr or contemporaneous agreements,
understandings, repreaentallons, and atetaments, oral or written, with respect thereto are merged therein.
Notting in his Agreement shall be construed 10 make the parties hereto partners or joint venturers or
render either of said parties liable for the debts or obligations of Ihb other. The parties agree that there
are no corrimltments, agreements, or understandings concerning the subject matter of this Agreement
that am not contained In this Agreement, and that thle Agreement bdntelne the entire agreement between
the parties as to all matters contained herein, Accdrdingly, It le agreed that nb deviation from the terms
hereof shalt be predicated upon any prior repreaen(atlons or agreements, whether oral or written. It Is
further agreed that any oral representations or m libations concerning this Agreement shall be of no
force or effect This Agreement may be modified, adered or emended only by a written amendment duly
• executed bj. both parties hereto or thelr authorized representatives. The Chief Executive Officer is
authorized to amend or modify thls Agreement as needed.
40. Chlnrf Executive Officer Aoonavale, The approvals of the Chief Executive Officer pursuant to
this Agreement shall be made in accordance with the Chief Executive Offloar Approval Procedures;
provided, however, that (p any Improvements that will remain on the Eaaemerit Area after the expiration
of this Agreement shall be subject to the Chief Executive Officer's prior written approval al the Chief
Executive Officer's discretion; end (it) the period for the City'e Initial response to a request for approval of
any construction plans and specifications for alt Easement Areas shall be the same as for Construction
Plans and Specifications,
41. Counteroarta, This Agreement may be executed in any number of bounterparts, all of which
taken together shall constitute one and the same testament and any party hereto may execute this
Agreement by signing any such counterpart.
42, performance Bood. Draft Note: Language for provision to be provided by City's Riek
Management Department and Office of City Attorney upon execution bf Agreement with apeClflc Exhibit E
attachment for Agreement
IN WITNESS WHEREOF, City and Flagetoie have executed this Easement Agreement as of
the dale set forth above.
Attest:
►ieclla A. Tho
Ily Clerk
"Cite
CITY OF AMI, a municipal corporallon
y:
Pedro G.
City Manager
andez
APPROVED AS • RI'K ' EQUIREMENT8 At'PROV D TO FO'M
AND C
LeeAnn Er . mAd Is rat
RISK Manuyo,
\Construction Sre5Un Fw101-03-08
By:
Jorge L
City Attorney
Attest:
STATE OF f IP( tip )
COUNTY OF Itif Q(M..L Dook( 1
FLAGSTONE ISLAND GARDENS LLC,
a Delaware limited liability company
By: Flagstone Development Corporation,
a Delaware corporation
B
Mehme
Title: President
ktar
The foregoin instrument was acknowledged before me this tF, day of
2007, by d/D L. 1-itfrohetel., , as the Chief Executive Officer of the City of Miami, a
municipal corporation of the State of Florida, on behalf of the City.
Personally Know ✓ or
Produced Identification
Type of identification
ProditCA f68FF Riga
,•"•'• Ofelia E. Perez
r 4 Commission Nt DD701412
.nu
,� Expires: AUG. 02, 2011
a011D® TURN ATLANTIC WINDING co., INC,
STATE OF CS6/11 t-Lug-- )
m' ) COUNTY OF f Orn,c, - att,_ )
Signature:
Name: (Print type)
Title: Nola Public
Serial No., if any: .pQ'O I Ina.
My commission expires: q),, a a 11
The foregoing instrument was acknowledged before me this /6— day of 01-#44.11/ ,
2007, by Mehmet Bayraktar, as President of Flagstone Development Corporation, a Delaware
corporation, the managing member of FLAGSTONE ISLAND GARDENS LLC, a Delaware limited
liability company, on behalf of each company
Personally Know . or
Produced Identification
Type of Identification
Produced
VICTORIA BERIPOI D
MY COMMISSIOt11 DD 575600
EXPIRES: hdy 24, 2010
eodSd Pro Hoary Rtic uro.Mrn
Construction Staging Final 01-03.06
Signature: 11-- * 't {
Name: (Print or typ ) V't r^t a- e r ir'Q1.c
Title: Notary Publi
Serial No., if any: D1) . S~%OO�
My commission expires: (J gyp/ b