HomeMy WebLinkAboutExhibitTHIS INSTRUMENT PREPARED BY:
City of Miami Public Works Department
444 SW 2 Avenue
Miami, Florida 33130
Attn: Nzeribe Ihekwaba, Ph.D., P.E., Director
[SPACE ABOVE THIS LINE FOR RECORDING DATA]
AERIAL EASEMENT
THIS AERIAL EASEMENT ("Easement") is made and entered as of
2012 ("Effective Date"), by and between the CITY OF MIAMI, a municipal corporation of the
State of Florida, whose address is 444 SW 2 Avenue, Miami, Florida 33130, as grantor,
("Grantor"), and BRICKELL CITYCENTRE PROJECT LLC., a Florida limited liability
company, as trustee ("Trustee") under the provisions of that certain Land Trust Agreement (as
the same may be modified, amended, restated and supplemented from time to time, the "Trust
Agreement") dated as of July 10, 2012 and known as Trust Number BCC-2012, whose address is
c/o Swire Properties, 501 Brickell Key Drive, Suite 600, Miami, Florida 33131, as grantees,
("Grantee").
RECITALS:
WHEREAS, the Grantor has certain legal rights, custodial responsibility and interest in
the City right-of-way known as SE 6th Street between South Miami Avenue and SE 1st Avenue
(the "Right -of -Way") which includes the property legally described in Exhibit "A-1" and as
depicted in the sketch on Exhibit "A-2" each attached hereto and by this reference incorporated
herein (the "Burdened Property); and
WHEREAS, Grantee is the owner of fee simple title to that certain real property in
Miami -Dade County, Florida, as legally described in Exhibit "B-1" and as depicted in the sketch
on Exhibit "B-2" each attached hereto and by this reference incorporated herein (the "Benefited
Property") to which this Easement shall be appurtenant; and
WHEREAS, the portion of the Benefited Property lying north of the Right -of -Way is
hereinafter referred to as the "North Parcel" and the portion of the Benefited Property lying south
of the Right -of -Way is hereinafter referred to as the "South Parcel"; as depicted on Exhibit "B-
2,"and
WHEREAS, the Grantor has granted Grantee a Temporary Construction Easement for
the purpose of constructing a commercially activated above ground transportation corridor
connecting the East and West Parcels, as recorded in Official Records Book Page (the
"Temporary Construction Easement"); and
{24I70947;E2}
1
WHEREAS, Grantee has constructed certain improvements on the Benefited Property
that generally conform to that certain "Special Area Plan" for Brickell CityCentre approved on
July 29, 2011 by the city of Miami during the term of the Temporary Construction Easement,
pursuant to its terms, which may include improvements such as an overpass/bridge above the
Right -of -Way connecting the North Parcel and South Parcel, a climate ribbon, and retail and
restaurant uses in the commercially activated transportation corridor (collectively, the
"Improvements"); and
WHEREAS, the Grantor desires to grant Grantee an aerial easement for the purpose of,
among other things as set forth herein, providing and maintaining the commercially activated
transportation corridor, and to allow safe and reasonable aerial access between and connecting
the North Parcel and the South Parcel, and accommodating users of the Project, including the
general public; and
WHEREAS, Grantee's proposed use will not impair the full use of the Right -of -Way for
vehicular or pedestrian traffic, or impede the free flow of traffic on the Right -of -Way.
NOW, THEREFORE, in consideration of the sum of One Dollar, and other valuable
consideration paid and received, the receipt and sufficiency of which are hereby acknowledged,
the Grantor hereby grants to Grantee an aerial easement in the property legally described in
Exhibit A-1, for the purposes of maintaining, operating, restoring and repairing the
Improvements and for ingress, egress and access on, in, over and through the Improvements (the
"Easement").
Section 1. Recitals. The above recitals are true and correct, and are incorporated
herein by reference.
Section 2. Easement. This Easement shall exist for the benefit of the Benefited
Property and shall be appurtenant thereto. Grantor retains all rights with respect to traffic flow
and regulation in. the Right -of -Way, and any rights not specifically conveyed herein.
Section 3. Term. The Easement shall commence upon the expiration of the
Temporary Construction Easement, (within five days of Grantee obtaining the final certificate
of occupancy or on December 31, 2015, whichever date is earlier) (the "Commencement
Date").
Section 4. Termination. Should a) the use, need, or transportation purpose for the
Easement be abandoned or cease, including but not limited to the elimination of the aerial
transportation connectivity between the North Parcel and the South Parcel, or b) should the
Easement be separated permanently or legally in any manner from the Benefited Property to
which the Easement appertains, or c) if Grantee fails to pay the compensation required in
Section 7 herein, or d) if Grantee fails to correct a violation of the terms of this Easement within
a reasonable time after written notice of noncompliance has been provided; then upon written
notice of termination by the Grantor, all rights hereby granted to Grantee shall terminate and
Grantee shall forthwith, at its own cost and expense and in a manner reasonably satisfactory to
the Grantor, remove all Improvements and restore the Burdened Property to the condition
previously found prior to the Temporary Construction Easement. In the event that Grantee fails
{24170947;5Q}
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or refuses to so remove the Improvements, after such written notice, then the Grantor may, at its
option, remove or cause to be removed such Improvements and restore the Burdened Property
to the condition previously found prior to the Temporary Construction Easement, and Grantee
will, in such event, upon bill rendered, pay to the Grantor all costs incurred by it in such
removal and restoration. Such rights of the Grantor are in addition to, and exclusive of, any
other rights set forth herein or under the law and shall survive the termination of this Easement.
Section S. Use. No use or improvements, other than those set forth herein, will be
permitted without the express written consent of Grantor. In no event shall Grantee's use of the
Easement interfere with the Grantor's operation and use of the Right -of -Way, or impair or
impede vehicular or pedestrian traffic on the Right -of -Way in any manner, unless prior
arrangements have been made in writing between the parties which agreement may be withheld
or granted in Grantor's sole discretion. The Easement shall not be used in any manner to
adversely affect the use, safety, appearance, or enjoyment of the Right -of -Way. No signage
shall be permitted in the Easement Area unless first approved by the Commission of the City of
Miami, and only then, if such signs conform to the requirements, restrictions and prohibitions of
the Code of the City of Miami, which shall be determined in the sole discretion of the Public
Works Department (or its equivalent department with jurisdiction over signage at the time of the
request). In any event, absolutely no signage will be permitted in the Easement Area which is
visible to the public traveling along the Right -of -Way (road.) At all times, excepting
emergencies or temporary closures for repairs, connectivity for pedestrians traveling between
the North Parcel and the South Parcel must be provided within the Easement area. Throughout
the term of this Easement, Grantee shall be jointly and severally liable to the Grantor for the
maintenance and other obligations set forth herein, and Grantee and its successors and assigns
will not alienate the Easement or otherwise interfere with the connectivity between the North
Parcel and South Parcel. The Improvements in the Easement area shall be owned by Grantee,
subject to the terms set forth herein.
Section 6. Obligations.
a. Taxes - Grantee shall be responsible for all state, county, city, and local
taxes that may be assessed against the Easement area during the term of this Easement,
including the airspace and Improvements, and including real property taxes, impact fees, and
special assessments, if any. Grantee acknowledges that for purposes of taxation, any portion of
the Improvements located in the Easement area utilized for retail, restaurant, or commercial
activity shall be taxable in the same manner as a non-exempt leasehold interest, and shall not be
exempt from taxation under Florida Statute Section 196.199 or other applicable law,
notwithstanding the City's interest in the Easement area. Any Improvements located in the
Easement area constructed to be utilized for retail, restaurant, or commercial activity shall be
subject to payment of Impact Fees, if applicable, pursuant to Chapter 13 of the City of Miami
Code.
b. Repairs and Damage - Grantee shall pay for any and all repairs or damage
to the Right -of -Way or the Burdened Property as a result of the use of the Easement. The
Grantor shall be responsible for no cost, claim, or lien resulting from the use of the Easement.
(24170947;82)
c. Hazardous Materials - Grantee is responsible for any hazardous materials
found in the Easement, except to the extent any such hazardous materials are caused by the
Grantor. In the event that such hazardous materials are found, the burden of proving that such
hazardous materials are caused by the Grantor shall be upon the Grantee. Grantor reserves the
right to test the Easement area at its own expense for hazardous materials at any time, upon
written notice. The term "hazardous materials" shall mean any hazardous or toxic substances,
material, waste, solid waste, or debris of any kind as defined by the Environmental Protection
Agency and any federal, state, or local laws. Grantee shall, at Grantee's sole cost and expense,
promptly and diligently complete any and all audits, assessments, clean-ups, and monitoring of
the Easement area required by provisions of this section. Grantee shall not permit any vehicle to
carry flammable, explosive, or combustible liquids into or onto the Easement area. This section
survives the termination of this Easement.
d. Maintenance — Except as specifically set forth otherwise in this Easement,
Grantee shall be responsible to maintain repair and replace the Improvements, and to maintain
and keep in a clean and safe condition the Easement area, including but not limited to a
condition free of dirt, rubbish, graffiti, debris, abandoned vehicles, loose building materials,
loose surface finishes, and obstructions. Such maintenance will be accomplished in a manner
so as not to cause any interference with the operation of the roadway and transportation use of
the Right -of -Way and the free flow of pedestrian and vehicular traffic thereon, unless prior
arrangements have been made in writing between the parties, which agreement may be granted
or withheld in the sole discretion of the Grantor. Any repair shall be at least similar or equal in
quality and class to the original work. The Grantor has the right, but not the obligation, to enter
the Easement area to inspect the condition of same. In the event that Grantee fails to so
maintain or repair the Improvements, the Grantor shall provide notice of such failure to Grantee,
and if Grantee fails to cure such maintenance or repair issue within a reasonable period of time
(such time frame to be determined in Grantor's discretion), then the Grantor, through its duly
authorized representatives, employees, and contractors, has the right but not the obligation to
perform such work, and the cost thereof shall be chargeable to Grantee and shall immediately be
due and payable to the Grantor upon the performance of such work and Grantee's receipt of an
invoice therefor.
e. Security - Grantee is solely responsible for the personal safety of its
employees, invitees, or any other person entering the Easement area, as well as any equipment
or personalty installed or brought into the Easement area. The Grantor assumes no
responsibility for the safety of such persons, equipment or personalty.
f. Utilities - All costs relating to utilities shall be borne by and shall be the
sole responsibility of Grantee.
To the extent that the Grantee has outstanding obligations under this Section 6 which accrued
prior to the termination of this Easement, the provisions of Section 6, as applicable, survive the
termination of this Easement.
Section 7. Consideration. As consideration for the granting of the Easement,
Grantee shall pay to the Grantor the sum of $458,545.05 due upon the Commencement Date.
{24170947;nn}
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Section 8. Indemnification. Grantee shall indemnify and hold harmless the Grantor
and its officers, employees, agents and instrumentalities from any and all liability, losses or
damages, including attorneys' fees and costs of defense, which the Grantor or its officers,
employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of
actions or proceedings of any kind or nature arising out of, relating to or resulting from the
performance of this Easement by Grantee or its employees, agents, servants, partners, principals
or subcontractors, or from the use of the Easement, and shall investigate and defend all claims,
suits or actions of any kind or nature in the name of the Grantor, where applicable, including
appellate proceedings, and shall pay all reasonable costs, judgments, and attorney's fees which
may issue thereon. Grantee expressly understands and agrees that any insurance protection
required by this Easement or otherwise provided by Grantee shall in no way limit the
responsibility to indemnify, keep and save harmless and defend the Grantor or its officers,
employees, agents and instrumentalities as herein provided. It is understood that Grantor
assumes no responsibility for the personal safety of any persons, equipment, or personal property
brought into or installed upon the Easement Area, including any loss, theft, damage, or injury.
Grantee shall promptly notify the Grantor of any loss, damage, injury or death arising out of or in
connection with the Easement or occurring on the Easement area. This obligation survives the
termination of this Easement.
Section 9. Insurance. Grantee shall, at its expense, maintain at all times during the
term of this Easement, and Grantee shall furnish to the Grantor Certificate(s) of Insurance which
indicate that insurance coverage has been obtained which meets the requirements as outlined
below:
a. Worker's Compensation Insurance for all employees of the Grantee as required
by Chapter 440, Florida Statutes.
b. Commercial General Liability Insurance, on a comprehensive basis, in an amount
not less than $50,000,000 combined single limit per occurrence for bodily injury and property
damage. City of Miami must be shown as an additional insured with respect to this coverage.
c. Automobile Liability Insurance covering all owned, non -owned and hired
vehicles used in conjunction with this Easement in an amount not less than $1,000,000 combined
single limit per occurrence for bodily injury and property damage.
All insurance policies required above shall be issued by companies authorized to do business
under the laws of the State of Florida, with the. following qualifications:
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. Best Company, Oldwick, New Jersey, or its equivalent, subject to
the approval of the City Risk Management Department.
Certificates will indicate no modification or change in insurance shall be made without thirty
(30) days in advance notice to the certificate holder.
(24170947;52)
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CERTIFICATE HOLDER MUST READ: CITY OF MIAMI
444 SW 2 AVENUE
10th FLOOR
MIAMI, FL 33130
Compliance with the foregoing requirements shall not relieve the Grantee of liability and
obligation under this Section or under any other Section of this Easement.
Section 10. Grantee's Right to Transfer. The Easement granted herein may only be
conveyed as an easement appurtenant to the Benefited Property and shall not be subdivided or
sold separately from the Benefited Property without the prior consent of the Grantor. Any sale,
assignment or transfer of Grantee's interest in this Easement shall be made expressly subject to
the terms, covenants and conditions of this Easement, and such transferee shall expressly assume
all of the obligations of Grantee under this Easement, and agree to be subject to all conditions
and restrictions to which Grantee is subject. In the event of a transfer of Grantee's interests in
this Easement, or any part thereof, Grantee shall deliver written notice to Grantor of such
transfer, together with a copy of the transfer agreement (if applicable). Upon the transfer by
Grantee, Grantee shall be released from future obligations which may occur during the unexpired
term of this Easement. However, nothing in this Easement shall abrogate Grantee's obligation to
pay any sums due to the Grantor which accrued prior to the effective date of such transfer, or
obligations or liabilities occurring prior to the date of transfer, and the Grantor shall always have
the right to enforce collection of such sums due and to enforce obligations from Grantee which
accrued prior to the transfer and in accordance with the terms of this Easement unless written
consent is obtained from the Grantor.
Section 11. Representations and Warranties. Grantee hereby represents and
warrants to the Grantor that it has full power and authority to enter into this Easement and
perform in accordance with its terms and provisions and that the parties signing this Easement on
behalf of Grantee have the authority to bind Grantee and to enter into this transaction and
Grantee has taken all requisite action and steps to legally authorize it to execute, deliver and
perform pursuant to this Easement. Grantor neither warrants title to the property conveyed
herein nor guarantees the suitability of any of the lands for a particular use.
Section 12. Binding Effect/Rights of Occupants. All terms and provisions of this
Easement are binding upon the parties hereto and their respective successors and assigns.
Further, all terms and provisions of this Easement and all rights, privileges, benefits and burdens
created hereunder are covenants running with the lands described herein, binding upon and
inuring to the benefit of the parties hereto, their respective heirs, successors, successors -in -title,
legal representatives and assigns. Subject to the limitations and conditions set forth herein,
Grantee may create such rules and regulations as deemed necessary or appropriate by Grantee,
including the right to regulate the hours and days for access to the Easement areas. No
independent rights shall be createdby this Easement as to any Occupant. For purposes of this
Easement, the term "Occupant" shall mean tenants, subtenants, assignees, licensees, invitees,
contractors, agents or licensees who, from time to time, is entitled to use or occupy all or any
portion of the Easement areas under an agreement, lease, sublease, assignment, concession,
license, or other similar agreement with Grantee.
(24170947g}
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Section 13. . Construction of Easement. Each party hereto hereby acknowledges that
all parties hereto participated equally in the drafting of this Easement and that, accordingly, no
court construing this Easement shall construe it more stringently against one party than the other.
Section 14. Governing Law/Venue. This Easement shall be governed by and
construed under the laws of the State of Florida. Venue for any action arising out of this
Easement shall be Miami -Dade County, Florida.
Section 15. Notices. Any notices which may be permitted or required hereunder shall
be in writing and shall be deemed to have been duly given as of the date and time the same are
received at the addressee's address set forth below, whether same are personally delivered,
mailed by United States Postal Service, postage prepaid by registered or certified mail, return
receipt requested,delivered by Federal Express or other overnight delivery service from which a
receipt may be obtained, and addressed as follows:
To Grantor:
To Grantee:
City of Miami, a municipal corporation of the State of Florida
444 SW 2 Avenue
8th Floor
Miami, Florida 33130
Fax: (305) 416-1278
Attn: Director, Public Works Department
Swire Properties
501 Brickell Key, Suite 600
Miami, Florida 33131
Attention Christopher Gandolfo
With a copy to: Akerman Senterfitt
One SE Third Avenue, 25th Floor
Miami, Florida 33131
Attention: Neisen Kasdin, Esq, and T. Spencer Crowley, Esq.
or to such other address as either party hereto shall from time to time designate to the other party.
by notice in writing as herein provided. Should the Easement be sold or transferred, on the date
of the closing, Grantee shall identify the party and address to whom such notice shall be
provided in the future, and shall record same in the public records.
Section 16. Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver of the breach of any provision of this Easement shall be construed.
as a waiver of any preceding or succeeding breach of the same or any other provision of this
Easement.
Section 17. Successors and Assigns. This Easement runs with the land and shall be
binding upon and shall inure to the benefit of the parties hereto, and their respective successors
and assigns.
{24170947;82)
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Section 18. Recording. This Easement shall be recorded among the Public Records of
Miami -Dade County, Florida, at the sole cost of Grantee.
Section 19. Consents. Whenever in this Easement the consent or approval of the
Grantor is required, such consent or approval, shall be made (so long as the Grantor. is the City of
Miami) by the City Manager or its designee on behalf of the Grantor and: (a) shall not be
effective unless it is in writing; and (b) shall apply only to the specific act or transaction so
approved or consented to and shall not relieve the Grantee of the obligation of obtaining the
Grantor's prior written consent or approval to any future similar act or transaction.
Section 20. Grantor's Rights as Sovereign. It is expressly understood that,
notwithstanding any provision of this Easement and Grantor's sovereign status hereunder (if
applicable): (a) the Grantor retains all of its sovereign prerogatives and rights as a city under
Florida laws and shall not be estopped from withholding or refusing to issue any approvals of
and applications for building, zoning, planning or development under present or future laws and
regulations of whatever nature applicable to the design, construction and development of the
improvements provided for herein, and (b) the Grantor is not obligated to grant any applications
for building, zoning, planning or development under present or future laws and regulations of
whatever nature,
Section 21. Severability. If any provision of this Easement or the application thereof
to any person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Easement and the application of such provision to other
persons or circumstances shall not be affected thereby but rather shall be enforced to the greatest
extent permitted by law.
[Remainder of Page Intentionally Blank]
(24170947;82)
IN WITNESS WHEREOF, the Grantor has caused this Easement to be executed in its
name by the City Manager; as authorized by the City of Miami Commission, and the Grantee
has caused this Easement to be executed by its duly authorized representative all as of the
Effective Date.
CITY OF MIAMI, a
Municipal corporation of
the State of Florida
GRANTOR
ATTEST: CITY OF MIAMI
By: By:
Todd B. Hannon
City Clerk
Johnny Martinez
City Manager
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
City Attorney
The foregoing was accepted and approved on the day of , 2013,
by Resolution No. of the Board of City Commission of the
City of Miami, Florida, a municipal corporation of the State of Florida.
ATTEST:
By:
Todd B. Hannon
City Clerk
(24170947;82)
A
WITNESSETH:
By:
GRANTEE
BRICKELL CITYCENTRE PROJECT
LLC. a Florida Limited Liability
Company, as Trustee under Land Trust No.
BCC-2012
signature Name: Chris Gandolfo
Title: Vice President
print name
signature
print name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Trustee executes this Easement
solely as Trustee under Land Trust
No. BCC-2012 and not individually,
and no personal recovery or
judgment shall ever be sought or
obtained against Trustee by reason
hereof.
The foregoing instrument was acknowledged before me this day of
,2013, by , the of
Brickell CityCentre, LLC, who is personally known to me or and has/has not produced
as identification and did/did not take an oath.
Notary Public
print name Serial Number
{24170947;e2}
1(1
EXHIBIT "A-1"
Burdened Property Legal Description (Easement)
{24170947;8 }
11
EXHIBIT "A-2"
Burdened Property Sketch (Easement)
/74170947171
EXHIBIT "B-1"
Grantee's Benefited Property Legal Description
rod1'7noa7.111.
EXHIBIT "B-2"
Grantee's Benefited Property Sketch
ron »non'7•111
THIS INSTRUMENT PREPARED BY:
City of Miami Public Works Department
444 SW 2 Avenue, $a' Floor
Miami, Florida 33130
Attn: Nzeribe Ihekwaba, Ph.D., P.E., Director
[SPACE ABOVE THIS LINE FOR RECORDING DATA]
TEMPORARY CONSTRUCTION EASEMENT
THIS TEMPORARY CONSTRUCTION EASEMENT ("Temporary Construction
Easement") is made and entered as of , 2013 ("Effective Date"), by and between the CITY
OF MIAMI, a municipal corporation of the State of Florida, whose address is 444 SW 2" d Ave,
Miami, Florida 33130, as grantor, ("Grantor"), and BRICKELL CITYCENTRE PROJECT
LLC., a Florida limited liability company, as trustee ("Trustee") under the provisions of that
certain Land Trust Agreement (as the same may be modified, amended, restated and
supplemented from time to time, the "Trust Agreement") dated as of July 10, 2012 and known as
Trust Number BCC-2012, whose address is c/o Swire Properties, 501 Brickell Key Drive, Suite
600, Miami, Florida 33131, as grantees, ("Grantee").
RECITALS:
WHEREAS, the Grantor has certain legal rights, custodial responsibility and interest in
the City right-of-way known as SE 6th Street between South Miami Avenue and SE 1st Avenue
(the "Right -of -Way") which includes the property legally described in Exhibit "A4" and as
depicted in the sketch on Exhibit "A-2" each attached hereto and by this reference incorporated
herein (the "Burdened Property"); and
WHEREAS, Grantee is the owner of fee simple title to that certain real property in
Miami -Dade County, Florida, as legally described in Exhibit "B-1" and as depicted in the sketch
on Exhibit "B-2" each attached hereto and by this reference incorporated herein (the "Benefited
Property") to which this Easement shall be appurtenant; and
WHEREAS, the portion of the Benefited Property lying north of the Right -of -Way is
hereinafter referred to as the "North Parcel" and the portion of the Benefited Property lying south
of the Right -of -Way is hereinafter referred to as the "South Parcel"; as depicted on Exhibit "B-
2"; and
WHEREAS, Grantee intends to build a commercial/retail/residential development on
the Benefited Property (the "Project") generally contemplated by that certain "Special Area
Plan" for Brickell CitiCentre approved on July 29, 2011 by the City of Miami; and
WHEREAS, the Grantor desires to grant to Grantee a temporary construction easement
described herein for the purpose of constructing a commercially activated above ground
{24124641;9}
1
transportation corridor, and a below ground transportation corridor with parking in connection
with the construction of the Project and non-standard improvements (including street lighting,
landscaping, pavers, etc.), in order to ultimately provide, among other things, safe and reasonable
access between the North Parcel and the South Parcel, and accommodating the public and users
of the Project.
NOW, THEREFORE, in consideration of the sum of One Dollar, and other valuable
consideration paid and received, the receipt and sufficiency of which is hereby acknowledged,
Grantor hereby grants to Grantee (i) a temporary construction easement on, in, under, over,
across and through the property legally described on Exhibit "A-1" hereto (the "Easement
Area") for purposes of constructing, reconstructing, excavating, grading, sloping, installing,
laying, inspecting, erecting, improving, removing, replacing and restoring the Improvements;
(ii) the non-exclusive right to store materials and equipment on and in the Easement Area, and
(iii) a temporary access easement for ingress, egress and access in connection with the foregoing
(collectively, the "Temporary Construction Easement").
Section 1. Recitals. The above recitals are true and correct, and are incorporated
herein by reference.
Section 2. Term. The Temporary Construction Easement shall expire upon the
completion of the construction of the Project, as evidenced by a final certificate of occupancy
for the last phase or improvement of the Project (the "Completion Date"), and no later than
December 31, 2015, whichever is earlier. Notice of the expiration of the Temporary
Construction Easement shall be filed in the public records by Grantee, with a copy to the
Grantor, within five days of Grantee obtaining the final certificate of occupancy or on
December 31, 2015, whichever date is earlier.
Section 3. Automatic Termination. Should a) the use, need, or transportation
purpose for the Temporary Construction Easement be abandoned or cease prior to completion
of construction, including but not limited to the elimination of transportation connectivity
between the North Parcel and the South Parcel, or b) should the Temporary Construction
Easement be permanently or legally separated in any manner from the Benefited Property to
which the Easement appertains, or c) if Grantee fails to pay the compensation required in
Section 12 herein, or d) if Grantee fails to correct any other violation of the terms of this
Temporary Construction Easement within a reasonable time after written notice of
noncompliance has been provided; then upon written notice of termination by the Grantor all
rights hereby granted to Grantee shall terminate and Grantee shall forthwith, at its own cost and
expense and in a manner reasonably satisfactory to the Grantor, remove all Improvements and
restore the Easement Area to the condition previously found prior to the Temporary
Construction Easement. In the event that Grantee fails or refuses to do so, after such written
notice, then the Grantor may, at its option, remove or cause to be removed such Improvements
on the Easement Area and restore same to the condition previously found prior to the
Temporary Construction Easement, and Grantee will, in such event, upon bill rendered, pay to
the Grantor all costs incurred by it in such removal and restoration. Any rights of Grantor set
forth in this Section are in addition to, and exclusive of, any other rights set forth herein or '
under the law, including the Grantor's rights under the performance bond set forth in Section 8
herein, and shall survive the termination of this Temporary Construction Easement.
{24124641;9J1 }
2
Section 4. Access Easements; Interference. Nothing herein shall prohibit the
Grantor from entering upon the Right -of -Way or Easement Area, for any use which is not
inconsistent with the rights conveyed herein. Notwithstanding the foregoing, the Grantor
retains, and may exercise any right for traffic regulation, and in the event of an emergency, even
if such rights interfere with the Temporary Construction Easement conveyed herein.
Section 5. Improvements. Grantee intends to construct, as part of the Project, those
improvements as generally depicted in the Special Area Plan, including, without limitation, a (i)
commercially active overpass/bridge over and above the Right -of -Way connecting the North
Parcel and South Parcel; (ii) portion of a framed structure, fixed and self-supporting to be
constructed over and above the Right -of -Way (the "Climate Ribbon" and together with the
Bridge, the "Aboveground Improvements"), connecting the various parcels of Brickell
CitiCentre and providing protection from the elements to pedestrians; and (iii) underground
parking structure, walk -ways, parking spaces, ramps and related infrastructure, under the Right -
of -Way connecting the North Parcel and the South Parcel underground (the "Underground
Improvements"). No other use will be permitted without the express written consent of Grantor.
The term, "Improvements" shall mean the Above ground Improvements and the Underground
Improvements and the non-standard improvements (including street lighting, landscaping,
pavers etc.). Grantee shall be responsible to pay for any and all repairs or damage to the Right -
of -Way resulting from the construction of the Project. Grantor shall be responsible for no cost,
claim, or lien resulting from construction of the Project, or the rights conveyed herein, which
shall be the sole responsibility of Grantee.
Section 6. Utilities/Security. Grantee shall be responsible for relocating, removing,
and repairing all utility facilities in the Easement Area as necessary for construction and
maintenance of the Project, and Grantor shall have no responsibility therefor. Nothing herein
shall be deemed to warrant or guarantee Grantee's ability to relocate or remove such utilities,
and all such changes, if any, will be made by separate agreement between the Grantee and the
respective utility. Grantee shall bear the cost and expense of all temporary and permanent
changes made necessary to any of the utilities located within the Easement Area and Right -of -
Way occasioned by the construction of the Project or the use of the Easement Area of Right -of -
Way. Grantee is solely responsible for the personal safety of its employees, invitees, or any
other person entering the Easement Area, as well as any equipment or personalty installed or
brought into the Easement Area. The Grantor assumes no responsibility for the safety of such
persons, equipment or personalty. This section survives the termination of this Temporary
Construction Easement.
Section 7. Commencement of Construction. Prior to any construction in the
Easement Area, Grantee shall submit to Grantor for review and approval complete construction
plans for any construction, alterations, modifications or improvements to be made in the
Easement Area. These plans shall meet the requirements of the City of Miami, County, State of
Florida Department of Transportation, and other applicable laws and regulations, including but
not limited to the Florida Building Code and the Florida Fire Prevention Code. Grantee
specifically agrees that no cost, claim, lien, or other expense shall be incurred by Grantor due to
such design, construction, safety procedure, work or operation in the Easement Area. Prior to
any construction in the Easement Area, Grantee shall also submit a detailed maintenance of
traffic plan to the Grantor, including but not limited to a notation of all proposed barricades,
{24124641;9i }
3
signage, re-routing, and temporary roads. No construction shall commence in the Easement
Area without the prior written consent of Grantor with respect to the construction plans and the
maintenance of traffic plan. Grantor's approval of any of the construction plans shall not
relieve Grantee of any obligation to file and procure approval of such plans with any department
of the City of Miami, the Grantor, or any other governmental authority having jurisdiction over
the issuance of building or other permits. Grantee acknowledges that any approval given by
Grantor shall not constitute an opinion that the plans are adequate or in compliance with any
law, ordinance, or code or other applicable regulations. Grantee shall not rely upon Grantor
approval for any such purpose, and Grantor approval shall impose no liability upon Grantor. By
its review the Grantor only signifies that the plans satisfy the Grantor's requirements, and the
Grantor expressly disclaims all other representations and warranties in connection with the
plans, including but not limited to the integrity, suitability or fitness for the intended purpose or
whether the improvements are constructed in accordance with the plans. For purposes of this
Temporary Construction Easement, "Commencement of Construction" when used in connection
with construction of the Improvements shall mean the earlier of the filing of the notice of
commencement under Florida Statutes Section 713.13 or the visible start of work on the
Improvements, including but not limited to on -site utility, excavation or soil stabilization work.
In order to meet the definition of "Commencement of Construction" herein, such filing of notice
or visible start of work must occur after Grantee has received a building permit for the particular
Improvements or portion thereof on which construction is proposed to commence. Construction
Plans shall consist of final plans, drawings, and specifications in the form and with sufficient
detail as required to obtain a building permit for such Improvements. In the event of
disapproval, Owner shall make the changes to the Construction Plans necessary to meet
Grantor's stated grounds for disapproval, and shall resubmit such revised plans to the Grantor.
Such resubmission shall be subject to review and approval, until final approval is received by
Grantor.
Section 8. Performance Bond. The Parties agree that the Improvements are not
public buildings or public works as contemplated under Section 255.05, Florida Statutes (2011).
Prior to the Commencement of Construction of the Improvements, Grantee shall deliver, or
cause its contractors to deliver, to the Grantor executed performance bonds as contemplated
under Section 255.05, Florida Statutes (2011), or their equivalent (including without limitation,
the right to deliver alternative security pursuant to Section 713.23, Florida Statutes (2011)), to
guarantee the construction of the portion of the Improvements then being constructed by such
contractor on the Easement Areas. The amount of such bond shall be equal to the proportionate
share of the applicable hard costs of construction of the Improvements then being constructed
on the Easement Areas by such contractor. Each bond shall name the Grantor as beneficiary
thereof and shall be issued by a surety reasonably acceptable to Grantor. Grantee shall have the
right from time to time to substitute or replace, or cause its contractors to substitute or replace,
such bonds as deemed necessary by the Grantee for any portion of the Improvements on the
Easement Areas then being done. Any such performance bonds, or the equivalent, and
Grantee's obligations thereunder, shall terminate upon payment of such work as required under
the Grantee's construction contract. Notwithstanding anything in the foregoing, the Grantor
acknowledges that all of the Improvements are not being constructed on the Easement Area, and
that the Project includes the Benefited Property, and therefore, the performance bond shall not
be based on the amount of hard construction costs of the entire Improvements or Project or any
portion of the Improvements that are not located on the Easement Area.
{24124641;91Q}
4
Section 9. Hazardous Materials, Grantee is responsible for any hazardous materials
found in the Easement Area after commencement of this Temporary Construction Easement,
except to the extent caused by Grantor. In the event that such hazardous materials are found,
the burden of proving that such hazardous materials were caused by the Grantor shall be upon
the Grantee. Grantor reserves the right to test the Easement at its own expense for hazardous
materials at any time during the term of this Temporary Construction Easement. The term
"hazardous materials" shall mean any and all hazardous or toxic substances, material, waste,
solid waste, or debris of any kind as defined by the Environmental Protection Agency and any
federal, state, or local laws. Grantee shall, at Grantee's sole cost and expense, promptly and
diligently complete any and all audits, assessments, clean-ups, and monitoring of the Easement
Areas required by provisions of this section. Grantee shall not permit any vehicle to carry
flammable, explosive, or combustible liquids into or onto the Easement Areas. This section
survives the termination of this Temporary Construction Easement.
Section 10. Maintenance of Improvements; Easements, Except as specifically set
forth otherwise in this Temporary Construction Easement, Grantee shall be responsible to
maintain andkeep the Easement Area in safe condition. Grantee shall have the right to clear
and keep the Easement Areas clear of obstruction which might interfere with the purposes for
which this Temporary Construction Easement is granted (including, without limitation, all lines,
pipes or systems). Neither Grantee nor its contractors, agents or any person acting on its behalf,
shall be deemed an agent of the Grantor. Additionally, Grantee shall be responsible to maintain,
repair and replace the Right -of -Way in accordance with Grantor specifications.
Section 11. Operations, Grantee's development and construction of the Project and
its use and operation of the Easement Areas shall not interfere with the Grantor's customary and
reasonable operation of the Right -of -Way, unless prior arrangements have been made in writing
between the Parties.
Section 12. Consideration. As consideration for the granting of the Temporary
Construction Easement, Grantee shall pay to the Grantor the sum of $536,310.00 due upon
execution of this Temporary Construction Easement by both parties.
Section 13. Indemnification.
Grantee shall indemnify and hold harmless the Grantor and its officers,
employees, agents and instrumentalities from any and all liability, losses or damages, including
attorneys' fees and costs of defense, which the Grantor or its officers, employees, agents or
instrumentalities may incur as a result of claims, demands, suits, causes of actions or
proceedings of any kind or nature arising out of, relating to or resulting from the performance of
this Temporary Construction Easement by the Grantee or its employees, agents, servants,
partners principals or subcontractors or from the use of the Temporary Construction Easement.
Grantee shall pay all claims and losses in connection therewith and shall investigate and defend
all claims, suits or actions of any kind or nature in the name of the Grantor, where applicable,
including appellate proceedings, and shall pay all reasonable costs, judgments, and attorney's
fees which may issue thereon. Grantee expressly understands and agrees that any insurance
protection required by this Temporary Construction Easement or otherwise provided by Grantee
shall in no way limit the responsibility to indemnify, keep and save harmless and defend the
(24124641;9M )
5
Grantor or its officers, employees, agents and instrumentalities as herein provided. It is
understood that Grantor assumes no responsibility for the personal safety of any persons,
equipment, or personal property brought into or installed upon the Easement Area, including
any loss, theft, damage, or injury. Grantee shall promptly notify the Grantor of any loss,
damage, injury or death arising out of or in connection with the Temporary Construction
Easement or occurring on the Easement Area. This obligation survives the termination of this
Easement.
Section 14. Insurance. Grantee shall, at its expense, maintain at all times during the
terms of this Temporary Construction Easement and furnish to the Grantor Certificate(s) of
Insurance which indicate that insurance coverage has been obtained which meets the
requirements as outlined below:
a. Worker's Compensation Insurance for all employees of the Grantee as required
by Chapter 440, Florida Statutes.
b. Commercial General Liability Insurance, on a comprehensive basis, in an amount
not less than $50,000,000 combined single limit per occurrence for bodily injury and property
damage. City of Miami must be shown as an additional insured with respect to this coverage.
c. Automobile Liability Insurance covering all owned, non -owned and hired
vehicles used in conjunction with this Easement in an amount not less than $1,000,000 combined
single limit per occurrence for bodily injury and property damage.
All insurance policies required above shall be issued by companies authorized to do business
under the laws of the State of Florida, with the following qualifications:
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. Best Company, Oldwick, New Jersey, or its equivalent, subject to
the approval of the City Risk Management Department.
Certificates will indicate no modification or change in insurance shall be made without thirty
(30) days in advance notice to the certificate holder.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI
444 SW 2 AVENUE
10th FLOOR
MIAMI, FL 33130
Compliance with the foregoing requirements shall not relieve the Grantee of liability and
obligation under this Section or under any other Section of this Temporary Construction
Easement.
Section 15, Grantee's Right to Transfer. The Easement granted herein may only be
conveyed as an easement appurtenant to the Benefited Property and shall not be subdivided or
{24124641;11Q5 }
6
sold separately from the Benefited Property without the prior consent of the Grantor. Grantee
Any sale, assignment or transfer of Grantee's interest in this Easement shall be made expressly
subject to the terms, covenants and conditions of this Easement, and such transferee shall
expressly assume all of the obligations of Grantee under this Easement, and agree to be subject
to all conditions and restrictions to which Grantee is subject. In the event of a transfer of
Grantee's interests in this Easement, or any part thereof, Grantee shall deliver written notice to
Grantor of such transfer, together with a copy of the transfer agreement (if applicable). Upon the
transfer by Grantee, Grantee shall be released from future obligations which may occur during
the unexpired term of this Easement. However, nothing in this Easement shall abrogate
Grantee's obligation to. pay any sums due to .the .Grantor which accrued prior to the effective
date of such transfer, or obligations or liabilities occurring prior to the date of transfer, and the
Grantor shall always have the right to enforce collection of such sums due and to enforce
obligations from Grantee which accrued prior to the transfer and in accordance with the terms of
this Easement unless written consent is obtained from the Grantor.
Section 16. Representations and Warranties. Grantee hereby represents and
warrants to the Grantor that it has full power and authority to enter into this Temporary
Construction Easement and perform in accordance with its terms and provisions and that the
parties signing this Temporary Construction Easement on behalf of Grantee have the authority
to bind Grantee and to enter into this transaction and Grantee has taken all requisite action and
steps to legally authorize it to execute, deliver and perform pursuant to this Temporary
Construction Easement. Grantor neither warrants title to the property conveyed herein nor
guarantees the suitability of any of the lands for a particular use.
Section 17. Binding Effect. All terms and provisions of this Temporary Construction
Easement are binding upon the parties hereto and their respective successors and assigns.
Further, all terms- and provisions of this Temporary Construction Easement and all rights,
privileges, benefits and burdens created hereunder are covenants running with the lands
described herein, binding upon and inuring to the benefit of the parties hereto, their respective
heirs, successors, successors -in -title, legal representatives and assigns.
Section 18. Construction. Each party hereto hereby acknowledges that all Parties
hereto participated equally in the drafting of this Temporary Construction Easement and that,
accordingly, no court construing this Temporary Construction Easement shall construe it more
stringently against one party than the other.
Section 19. Governing Law/Venue. This Temporary Construction Easement shall be
governed by and construed under the laws of the State of Florida. Venue for any action arising
out of this Temporary Construction Easement shall be Miami -Dade County, Florida.
Section 20. Notices. Any notices which may be permitted or required hereunder shall
be in writing and shall be deemed to have been duly given as of the date and time the same are
received at the addressee's address set forth below, whether same are personally delivered,
mailed by United States Postal Service, postage prepaid by registered or certified mail, return
receipt requested, delivered by Federal Express or other overnight delivery service from which a
receipt may be obtained, and addressed as follows:
{24124641;13.1O}
7
To Grantor:
To Grantee:
City of Miami, a municipal corporation of the State of Florida
444 SW 2 Avenue
8th Floor
Miami, Florida 33130
Fax: (305) 416-1278
Attn: Director, Public Works Department
Swire Properties
501 Brickell Key, Suite 600
Miami, Florida 33131
Attention Christopher Gandolfo
With a copy to: Alterman Senterfitt
One SE Third Avenue, 25th Floor
Miami, Florida 33131
Attention: Nelsen Kasdin, Esq. and T. Spencer Crowley, Esq.
or to such other address as either party hereto shall from time to time designate to the other party
by notice in writing as herein provided.
Section 21. Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver of the breach of any provision of this Temporary Construction
Easement shall be construed as a waiver of any preceding or succeeding breach of the same or
any other provision of this Temporary Construction Easement.
Section 22. Successors and Assigns. This Temporary Construction Easement runs
with the land and shall be binding upon and shall inure to the benefit of the parties hereto, and
their respective successors and assigns.
Section 23. Recording. This Temporary Construction Easement shall be recorded
among the Public Records of Miami -Dade County, Florida, at the sole cost of Grantee.
Section 24. Consents. Whenever in this Temporary Construction Easement the
consent or approval of the Grantor is required, such consent or approval, with respect to the
Grantor as the Grantor shall be made (so long as the Grantor is City of Miami) by the City
Manager or its designee on behalf of the Grantor and: (a) shall not be effective unless it is in
writing; and (b) shall apply only to the specific act or transaction so approved or consented to
and shall not relieve the Grantee of the obligation of obtaining the Grantor's prior written
consent or approval to any future similar act or transaction.
Section 25. Grantor's Rights as Sovereign. It is expressly understood that,
notwithstanding any provision of this Temporary Construction Easement and Grantor's
sovereign status hereunder (if applicable): (a) the Grantor retains all of its sovereign
prerogatives and rights as a city under Florida laws and shall not be estopped from withholding
or refusing to issue any approvals of and applications for building, zoning, planning or
development under present or future laws and regulations of whatever nature applicable to the
design, construction and development of the improvements provided for herein, and (b) the
{24124641;91Q}
8
Grantor is not obligated to grant any applications for building, zoning, planning or development
under present or future laws and regulations of whatever nature applicable to the design,
construction and development of the improvements provided for herein.
Section 26. Severability. If any provision of this Easement or the application thereof
to any person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Easement and the application of such provision to other
persons or circumstances shall not be affected thereby but rather shall be enforced to the
greatest extent permitted by law.
[Remainder of Page Intentionally Blank]
{24124641; )
9
IN WITNESS WHEREOF, the Grantor has caused this Temporary Construction
Easement to be executed in its name by the City Manager; as authorized by the City of Miami
Commission, and the Grantee has caused this Temporary Construction Easement to be executed
by its duly authorized representative all as of the Effective Date.
CITY OF MIAMI, a GRANTOR
Municipal corporation of
the State of Florida
ATTEST: CITY OF MIAMI:
By: By:
Todd B. Hannon Johnny Martinez
City Clerk City Manager
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
V; >i vies Mellott
City Attorney
The foregoing was accepted and approved on the day of , 2013,
by Resolution No. .of the Commission of the City of Miami,
Florida, a municipal corporation of the State of Florida.
ATTEST:
By:
Todd B. Hannon
City Clerk
{24124641;9.1Q)
10
WITNESSETH:
By:
GRANTEE
BRICKELL CITYCENTRE PROJECT
LLC, a Florida Limited Liability company,
as Trustee under Land trust No. BCC-2012
signature Name: Chris Gandolfo
Title: Vice President
print name
signature
print name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Trustee executes this Easement
solely as Trustee under Land
Trust No. BCC-2012 and not
individually, and no personal
recovery or judgment shall ever
be sought or obtained against
Trustee by reason hereof.
The foregoing instrument was acknowledged before me this day of
,2012,by ,who is
personally known to me or and has/has not produced as
identification and did/did not take an oath.
Notary Public
print name Serial Number
(24124641; )
11
Exhibit "A-1"
Description of Burdened Property (Temporary Construction Easement)
{24124641;91Q)
12
Exhibit "A-2"
Sketch of Burdened Property (Temporary Construction Easement)
{24124641;910_}
13
Exhibit "B-1"
Description of Grantee's property (North and South Parcels)
! 1 4s41•111
Exhibit "B-2"
Sketch of Grantee's property (North and South parcels)
!')A1') 4M1.111
THIS INSTRUMENT PREPARED BY:
City of Miami Public Works Department
444 SW 2 Avenue
Miami, Florida 33130
Attn: Nzeribe Ihekwaba, Ph.D., P.E., Director
[SPACE ABOVE THIS LINE FOR RECORDING DATA]
SUBSURFACE AND MAINTENANCE EASEMENT
THIS SUBSURFACE AND MAINTENANCE EASEMENT ("Easement") is made
and entered as of , 2013 ("Effective Date"), by and between. the CITY OF
MIAMI, a municipal corporation of the State of Florida, whose address is 444 SW 2 Avenue,
Miami, Florida 33130, as grantor, ("Grantor"), and BRICKELL CITYCENTRE PROJECT
LLC., a Florida limited liability company, as trustee ("Trustee") under the provisions of that
certain Land Trust Agreement (as the same may be modified, amended, restated and
supplemented from time to time, the "Trust Agreement") dated as of July 10, 2012 and known as
Trust Number BCC-2012, whose address is c/o Swire Properties, 501 Brickell Key Drive, Suite
600, Miami, Florida 33131, as grantees, ("Grantee").
RECITALS:
WHEREAS, 'the Grantor has certain legal rights, custodial responsibility and interest in
the City right-of-way known as SE 6th Street between South Miami Avenue and SE 1st Avenue
(the "Right -of -Way") which includes the property legally described in Exhibit "A-1" and as
depicted in the sketch on Exhibit "A-2" each attached hereto and by this reference incorporated
herein (the "Burdened Property); and
WHEREAS, Grantee is the owner of fee simple title to that certain real property in
Miami -Dade County, Florida, as legally described in Exhibit "B-1" and as depicted in the sketch
on Exhibit "B-2" each attached hereto and by this reference incorporated herein (the "Benefited
Property") to which this Easement shall be appurtenant; and
WHEREAS, the portion of the Benefited Property lying north of the Right -of -Way is
hereinafter referred to as the "North Parcel" and the portion of the Benefited Property lying south
of the Right -of -Way is hereinafter referred to as the "South Parcel"; as depicted on Exhibit "B-
2,"and
WHEREAS, the Grantor has granted Grantee a Temporary Construction Easement for
the purpose of constructing a subsurface transportation corridor with ancillary parking
connecting the North and South Parcels, as recorded in Official Records Book , Page
(the "Temporary Construction Easement"); and
{24170947M
1
WHEREAS, Grantee has constructed certain improvements on the Benefited Property
that generally conform to that certain "Special Area Plan" for Brickell CityCentre approved on
July 29, 2011 by the city of Miami during the term of the Temporary Construction Easement,
pursuant to its terms, which may include improvements such as a subsurface transportation
corridor including attendant parking (collectively, the "Improvements"); and
WHEREAS, the Grantor desires to grant Grantee a subsurface easement for the purpose
of, among other things as set forth herein, providing and maintaining the transportation corridor,
and to allow safe and reasonable subsurface access between and connecting the North Parcel and
the South Parcel, providing parking, and accommodating users of the Project, including the
general public; and
WHEREAS, Grantor desires to grant Grantee a maintenance and access easement for the
limited purpose of maintaining and repairing the Right -of -Way; and
WHEREAS, Grantee's proposed use will not impair the full use of the Right -of -Way for
vehicular or pedestrian traffic, or impede the free flow of traffic on the Right -of -Way.
NOW, THEREFORE, in consideration of the sum of One Dollar, and other valuable
consideration paid and received, the receipt and sufficiency of which are hereby acknowledged,
the Grantor hereby grants to Grantee an a subsurface easement in the Burdened Property legally
described in Exhibit A-1, for the purposes of maintaining, operating, restoring and repairing the
Improvements and for ingress, egress and access on, in, over and through the Improvements (the
"Easement"). Grantor further grants to Grantee an easement in the Right -of -Way for the limited
purpose of maintaining and repairing the Right -of -Way and any improvements (such as street
lighting, landscaping, etc.) constructed thereon pursuant to the terms of the Temporary
Construction Easement, including access thereto for such purposes.
Section 1. Recitals. The above recitals are true and correct, and axe incorporated
herein by reference.
Section 2. Easement. This Easement shall exist for the benefit of the Benefited
Property and shall be appurtenant thereto. Grantor retains all rights with respect to traffic flow
and regulation in the Right -of -Way, and any rights not specifically conveyed herein.
Section 3. Term. The Easement shall commence upon the expiration of the
Temporary Construction Easement, (within five days of Grantee obtaining the fmal certificate
of occupancy or on December 31, 2015, whichever date is earlier) (the "Commencement
Date").
Section 4. Termination. Should a) the use, need, or transportation purpose for the
Easement be abandoned or cease, including but not limited to the elimination of the
underground transportation connectivity between the North Parcel and the South Parcel, or b)
should the Easement be separated permanently or legally in any manner from the Benefited
Property to which the Easement appertains, or c) if Grantee fails to pay the compensation
required in Section 7 herein, or d) if Grantee fails to correct a violation of the terms of this
Easement within a reasonable time after written notice of noncompliance has been provided;
then upon written notice of termination by the Grantor, all rights hereby granted to Grantee shall
{24170947;82)
2
terminate and Grantee shall forthwith, at its own cost and expense and in a manner reasonably
satisfactory to the Grantor, remove all Improvements and restore the Burdened Property to the
condition previously found prior to the Temporary Construction Easement. In the event that
Grantee fails or refuses to so, after such written notice, then the Grantor may, at its option,
remove or cause to be removed such Improvements on the Easement area and restore the
Burdened Property to the condition previously found prior to the Temporary Construction
Easement, and Grantee will, in such event, upon bill rendered, pay to the Grantor all costs
incurred by it in such removal and restoration. In the event of termination, any improvements
made to the Right -of -Way outside of the easement area (landscaping, street lighting, etc.), shall
not be removed absent specific written request by Grantor, provided that upon such request, the
same provisions set forth in this Section shall apply regarding removal and payment therefor.
Any rights of the Grantor set forth in this Section are in addition to, and exclusive of, any other
rights set forth herein or under the law and shall survive the termination of this Easement.
Section 5. Use. No use or improvements, other than those set forth herein, will be
permitted without the express written consent of Grantor. In no event shall Grantee's use of the
Easement interfere with the Grantor's operation and use of the Right -of -Way, or impair or
impede vehicular or pedestrian traffic on the Right -of -Way in any manner, unless prior
arrangements have been made in writing between the parties, which agreement may be withheld
or granted in Grantor's sole discretion. The Easement shall not be used in any manner to
adversely affect the use, safety, appearance, or enjoyment of the Right -of -Way. No signage
shall be permitted in the Easement Area unless first approved by the Commission of the City of
Miami, and only then, if such signs conform to the requirements, restrictions and prohibitions of
the Code of the City of Miami, which shall be determined in the sole discretion of the Public
Works Department (or its equivalent department with jurisdiction over signage at the time of the
request). In any event, absolutely no signage will be permitted in the Easement Area which is
visible to the public traveling along the Right -of Way (road.) At all times, excepting
emergencies or temporary closures for repairs, connectivity for vehicular and pedestrians
traveling between the North Parcel and the South Parcel must be provided within the Easement
area. Throughout the term of this Easement, Grantee shall be jointly and severally liable to the
Grantor for the maintenance and other obligations set forth herein, and Grantee and its
successors and assigns will not alienate the Easement or otherwise interfere with the
connectivity between the North Parcel and South Parcel. The Improvements made in the
Easement area shall be owned by Grantee, subject to the terms set forth herein; provided
however that any improvements made to the Right -of -Way, outside of the easement area, shall
be owned by Grantor.
Section 6. Obligations.
a. Taxes - Grantee shall be responsible for all state, county, city, and local
taxes that may be assessed against the Easement area during the term of this Easement,
including the subsurface airspace and Improvements, and including real property taxes, impact
fees, and special assessments, if any. Grantee acknowledges that for purposes of taxation, any
portion of the Improvements located in the Easement area utilized for retail or commercial
activity shall be taxable in the same manner as a non-exempt leasehold interest, and shall not be
exempt from taxation under Florida Statute Section 196.199 or other applicable law,
notwithstanding the City's interest in the Easement area. Any Improvements located in the
{24170947; .Q)
3
Easement area constructed to be utilized for retail, restaurant, or commercial activity shall be
subject to payment of Impact Fees, if applicable, pursuant to Chapter 13 of the City of Miami
Code.
b. Repairs and Damage - Grantee shall pay for any and all repairs or damage
to the Right -of -Way or the Burdened Property as a result of the use of the Easement. The
Grantor shall be responsible for no cost, claim, or lien resulting from the use of the Easement.
c. Hazardous Materials - Grantee is responsible for any hazardous materials
found in the Easement, except to the extent any such hazardous materials are caused by the
Grantor. In the event that such hazardous materials are found, the burden of proving that such
hazardous materials are caused by the Grantor shall be upon the Grantee. Grantor reserves the
right to test the. Easement area at its own expense for hazardous materials at any time, upon
written notice. The term "hazardous materials" shall mean any hazardous or toxic substances,
material, waste, solid waste, or debris of any kind as defined by the Environmental Protection
Agency and any federal, state, or local laws. Grantee shall, at Grantee's sole cost and expense,
promptly and diligently complete any and all audits, assessments, clean-ups, and monitoring of
the Easement area required by provisions of this section. Grantee shall not permit any vehicle to
carry flammable, explosive, or combustible liquids into or onto the Easement area. This section
survives the termination of this Easement.
d. Maintenance — Except as specifically set forth otherwise in this Easement,
Grantee shall be responsible to maintain, repair and replace the Improvements, and to maintain
and keep in a clean and safe condition the Easement area, including but not limited to a
condition free of dirt, rubbish, graffiti, debris, abandoned vehicles, loose building materials,
loose surface finishes, and obstructions. Additionally, Grantee shall be responsible for
maintaining and repairing the Right -of -Way, including but not limited to drainage, lighting,
curb and gutter, sidewalks, pavement, pavement marking, and all those structural elements
necessary to support the integrity of the Right -of -Way. Such maintenance will be accomplished
in a manner so as not to cause any interference with the operation of the roadway and
transportation use of the Right -of -Way and the free flow of pedestrian and vehicular traffic
thereon, unless prior arrangements have been made in writing between the parties, which
agreement may be granted or withheld in the sole discretion of the Grantor. Any repair shall be
at least similar or equal in quality and class to the original work. The Grantor has the right, but
not the obligation, to enter the Easement area to inspect the condition of same. In the event that
Grantee fails to so maintain or repair the Right -of Way or the Improvements, the Grantor shall
provide notice of such failure to Grantee, and if Grantee fails to cure such maintenance or repair
issue within a reasonable period of time (such time frame to be determined in Grantor's
discretion), then the Grantor, through its duly authorized representatives, employees, and
contractors, has the right but not the obligation to perform such work, and the cost thereof shall
be chargeable to Grantee and shall immediately be due and payable to the Grantor upon the
performance of such work and Grantee's receipt of an invoice therefor.
e. Security - Grantee is solely responsible for the personal safety of its
employees, invitees, or any other person entering the Easement area, as well as any equipment
or personalty installed or brought into the Easement area. The Grantor assumes no
responsibility for the safety of such persons, equipment or personalty.
{24170947;n}
f. Utilities — All costs relating to utilities shall be borne by and shall be the
sole responsibility of Grantee.
To the extent that the Grantee has outstanding obligations under this Section 6 which accrued
prior to the termination of this Easement, the provisions of Section 6, as applicable, survive the
termination of this Easement.
Section 7. Consideration. As consideration for the granting of the Easement,
Grantee shall pay to the Grantor the sum of $312,999.60 due upon the Commencement Date.
Section 8. Indemnification. Grantee shall indemnify and hold harmless the Grantor
and its officers, employees, agents and instrumentalities from any andall liability, losses or
damages, including attorneys' fees and costs ofdefense, which the Grantor or its officers,
employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of
actions or proceedings of any kind or nature arising out of, relating to or resulting from the
performance of this Easement by Grantee or its employees, agents, servants, partners, principals
or subcontractors, or from the use of the Easement, and shall investigate and defend all claims,
suits or actions of any kind or nature in the name of the Grantor, where applicable, including
appellate proceedings, and shall pay all reasonable costs, judgments, and attorney's fees which
may issue thereon. Grantee expressly understands and agrees that any insurance protection
required by this Easement or otherwise provided by Grantee shall in no way limit the
responsibility to indemnify, keep and save harmless and defend the Grantor or its officers,
employees, agents and instrumentalities as herein provided. It is understood that Grantor
assumes no responsibility for the personal safety of any persons, equipment, or personal property
brought into or installed upon the Easement Area, including any loss, theft, damage, or injury.
Grantee shall promptly notify the Grantor of any loss, damage, injury or death arising out of or in
connection with the Easement or occurring on the Easement area, This obligation survives the
termination of this Easement.
Section 9. Insurance. Grantee shall, at its expense, maintain at all times during the
term of this Easement, and Grantee shall furnish to the Grantor Certificate(s) of Insurance which
indicate that insurance coverage has been obtained which meets the requirements as outlined
below:
a. Worker's Compensation Insurance for all employees of the Grantee as required
by Chapter 440, Florida Statutes.
b. Commercial General Liability Insurance, on a comprehensive basis, in an amount
not less than $50,000,000 combined single limit per occurrence for bodily injury and property
damage. City of Miami must be shown as an additional insured with respect to this coverage.
c. Automobile Liability Insurance covering all owned, non -owned and hired
vehicles used in conjunction with this Easement in an amount not less than $1,000,000 combined
single limit per occurrence for bodily injury and property damage.
All insurance policies required above shall be issued by companies authorized to do business
under the laws of the State of Florida, with the following qualifications:
{24170947R)
5
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. Best Company, Oldwick, New Jersey, or its equivalent, subject to
the approval of the City Risk Management Department.
Certificates will indicate no modification or change in insurance shall be made without thirty
(30) days in advance notice to the certificate holder.
CERTIFICATE HOLDER MUST READ: CITY OF MIAMI
444 SW 2 AVENUE
10th FLOOR
MIAMI, FL 33130
Compliance with the foregoing requirements shall not relieve the Grantee of liability and
obligation under this Section or under any other Section of this Easement.
Section 10. Grantee's Right to Transfer. The Easement granted herein may only be
conveyed as an easement appurtenant to the Benefited Property and shall not be subdivided or
sold separately from the Benefited Property without the prior consent of the Grantor. Any sale,
assignment or transfer of Grantee's interest in this Easement shall be made expressly subject to
the terms, covenants and conditions of this Easement, and such transferee shall expressly assume
all of the obligations of Grantee under this Easement, and agree to be subject to all conditions
and restrictions to which Grantee is subject. In the event of a transfer of Grantee's interests in
this . Easement, or any part thereof, Grantee shall deliver written notice to Grantor of such
transfer, together with a copy of the transfer agreement (if applicable). Upon the transfer by
Grantee, Grantee shall be released from future obligations which may occur during the unexpired
term of this Easement. However, nothing in this Easement shall abrogate Grantee's obligation to
pay any sums due to the Grantor which accrued prior to the effective date of such transfer, or
obligations or liabilities occurring prior to the date of transfer, and the Grantor shall always have
the right to enforce collection of such sums due and to enforce obligations from Grantee which
accrued prior to the transfer and in accordance with the terms of this Easement unless written
consent is obtained from the Grantor.
Section 11. Representations and Warranties. Grantee hereby represents and
warrants to the Grantor that it has full power and authority to enter into this Easement and
perform in accordance with its terms and provisions and that the parties signing this Easement on
behalf of Grantee have the authority to bind Grantee and to enter into this transaction and
Grantee has taken all requisite action and steps to legally authorize it to execute, deliver and
perform pursuant to this Easement. Grantor neither warrants title to the property conveyed
herein nor guarantees the suitability of any of the lands for a particular use.
Section 12. Binding Effect/Rights of Occupants. All terms and provisions of this
Easement are binding upon the parties hereto and their respective successors and assigns.
Further, all terms and provisions of this Easement and all rights, privileges, benefits and burdens
{24170947;R2}
6
created hereunder are covenants running with the lands described herein, binding upon and
inuring to the benefit of the parties hereto, their respective heirs, successors, successors -in -title,
legal representatives and assigns. Subject to the limitations and conditions set forth herein,
Grantee may create such rules and regulations as deemed necessary or appropriate by Grantee,
including the right to regulate the hours and days for access to the Easement areas. No
independent rights shall be created by this Easement as to any Occupant. For purposes of this
Easement, the term "Occupant" shall mean tenants, subtenants, assignees, licensees, invitees,
contractors, agents or licensees who, from time to time, is entitled to use or occupy all or any
portion of the Easement areas under an agreement, lease, sublease, assignment, concession,
license, or other similar agreement with Grantee.
Section 13. Construction of Easement. Each party hereto hereby acknowledges that
all parties hereto participated equally in the drafting of this Easement and that, accordingly, no
court construing this Easement shall construe it more stringently against one party than the other.
Section 14. Governing Law/Venue. This Easement shall be governed by and
construed under the laws of the State of Florida. Venue for any action arising out of this
Easement shall be Miami -Dade County, Florida.
Section 15. Notices. Any notices which may be permitted or required hereunder shall
be in writing and shall be deemed to have been duly given as of the date and time the same are
received at the addressee's address set forth below, whether same are personally delivered,
mailed by United States Postal Service, postage prepaid by registered or certified mail, return
receipt requested, delivered by Federal Express or other overnight delivery service from which a
receipt may be obtained, and addressed as follows:
To Grantor:
To Grantee:
City of Miami, a municipal corporation of the State of Florida
444 SW 2 Avenue
8th Floor
Miami, Florida 33130
Fax: (305) 416-1278
Attn: Director, Public Works Department
Swire Properties
501 Brickell Key, Suite 600
Miami, Florida 33131
Attention Christopher Gandolfo
With a copy to: Akerman Senterfitt
One SE Third Avenue, 25th Floor
Miami, Florida 33131
Attention: Neisen Kasdin, Esq. and T. Spencer Crowley, Esq.
or to such other address as either party hereto shall from time to time designate to the other party
by notice in writing as herein provided. Should the Easement be sold or transferred, on the date
of the closing, Grantee shall identify the party and address to whom such notice shall be
provided in the future, and shall record same in the public records.
{24170947n}
7
Section 16. Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver of the breach of any provision of this Easement shall be construed
as a waiver of any preceding or succeeding breach of the same or any other provision of this
Easement.
Section 17. Successors and Assigns. This Easement runs with the land and shall be
binding upon and shall inure to the benefit of the parties hereto, and their respective successors
and assigns.
Section 18. Recording. This Easement shall be recorded among the Public Records of
Miami -Dade County, Florida, at the sole cost of Grantee.
Section 19. Consents.. Whenever in. this Easement the consent or approval of the
Grantor is required, such consent or approval, shall be made (so long as the Grantor is the City of
Miami) by the City Manager or its designee on behalf of the Grantor and: (a) shall not be
effective unless it is in writing; and (b) shall apply only to the specific act or transaction so
approved or consented to and shall not relieve the Grantee of the obligation of obtaining the
Grantor's prior written consent or approval to any future similar act or transaction.
Section 20. Grantor's Rights as Sovereign. It is expressly understood that,
notwithstanding any provision of this Easement and Grantor's sovereign status hereunder (if
applicable): (a) the Grantor retains all of its sovereign prerogatives and rights as a city under
Florida laws and shall not be estopped from withholding or refusing to issue any approvals of
and applications for building, zoning, planning or development under present or future laws and
regulations of whatever nature applicable to the design, construction and development of the
improvements provided for herein, and (b) the Grantor is not obligated to grant any applications
for building, zoning, planning or development under present or future laws and regulations of
whatever nature.
Section 21. Severability. If any provision of this Easement or the application thereof
to any person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Easement and the application of such provision to other
persons or circumstances shall not be affected thereby but rather shall be enforced to the greatest
extent permitted by law.
[Remainder of Page Intentionally Blank]
{24170947;s }
8
IN WITNESS WHEREOF, the Grantor has caused this Easement to be executed in its
name by the City Manager; as authorized by the City of Miami Commission, and the Grantee
has caused this Easement to be executed by its duly authorized representative all as of the
Effective Date.
CITY OF MIAMI, a
Municipal corporation of
the State of Florida
GRANTOR
ATTEST: CITY OF MIAMI
By: By:
Todd B. Hannon Johnny Martinez
City Clerk City Manager
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
0Yte Wev
City Attorney
The foregoing was accepted and approved on the day of , 2013,
by Resolution No. of the Board of City Commission of the
City of Miami, Florida, a municipal corporation of the State of Florida.
ATTEST:
By:
Todd B. Hannon
City Clerk
{24170947;5A)
9
WITNESSETH:
By:
GRANTEE
BRICKELL CITYCENTRE PROJECT
LLC. a Florida Limited Liability Company.
as Trustee under Land Trust No. BCC-2012
signature Name: Chris Gandolfo
Title: Vice President
print name
signature
print name
STATE OF FLORIDA
COUNTY OF IMAM-DADE
Trustee executes this Easement
solely as Trustee under Land
Trust No. BCC-2012 and not
individually, and no personal
recovery or judgment shall ever
be sought or obtained against
Trustee by reason hereof.
The foregoing instrument was acknowledged before me this day of
,2013, by , the of
Brickell CityCentre, LLC, who is personally known to me or and has/has not produced
as identification and did/did not take an oath.
Notary Public
print name Serial Number
{24170947;5 }
10
EXHIBIT "A-1"
Burdened Property Legal Description (Easement)
{24170947;52}
11
EXHIBIT "A-2"
Burdened Property Sketch (Easement)
{24170947;12}
EXHIBIT "B-1"
Grantee's Benefited Property Legal Description
(24170947;12)
EXHIBIT "B-2"
Grantee's Benefited Property Sketch
{24170947;12}