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HomeMy WebLinkAboutExhibitPrepared by and return to: Ambarina A. Perez Florida East Coast Industries LLC 2855 LeJeune Rd., 4th Floor Coral Gables, Florida 33134 PERPETUAL AERIAL EASEMENT AGREEMENT This Perpetual Aerial Easement Agreement ("Agreement") effective this day of , 2018 ("Effective Date"), between Florida East Coast Railway, L.L.C., a Florida limited liability company ("Grantor"), whose address is 7411 Fullerton Street, Suite 300, Jacksonville, Florida 32256, and the The City of Miami, Florida, a municipal corporation of the State of Florida, in the County of Miami -Dade, whose address is 444 SW 2nd Avenue, Miami, Florida 33130 ("Grantee"). RECITALS: A. Grantee desires to construct, install, inspect, maintain and use an elevated pedestrian bridge for NW 17t11 Street ( the "Bridge"), above a portion of the existing railway corridor owned by the Grantor, located in Miami -Dade County, Florida, and more particularly described in Exhibit "A" attached hereto and made a part hereof (the "Corridor Property"). B. Grantee desires that it be granted an aerial easement over a portion of the Corridor Property to allow for the construction, installation, inspection, maintenance and use of the Bridge by the general public as a pedestrian walkway, which shall cross the railroad tracks of the Corridor Parcel, above grade, within an aerial space which shall consist of fifteen (15) linear feet in length along the southeasterly line of the Corridor Property, fifteen (15) linear feet in length along the northwesterly line of the Corridor Property, encompassing a total area of no more than 927.15 square feet of a portion of the Corridor Property (the "Aerial Easement Property"), which shall be determined from within the overall aerial easement property more particularly described in Exhibit "B" attached hereto and made a part hereof (the "Overall Aerial Easement Property"). The Aerial Easement Property shall be determined as set forth in Section 1 below. NOW, THEREFORE, in consideration of TEN ($10.00) Dollars and other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged, Grantor and Grantee hereby agree as follows: 1. Grant of Aerial Easement. Upon the terms and conditions of this Agreement, Grantor does hereby grant, bargain, sell and convey to Grantee, its successors and assigns, a nonexclusive, perpetual aerial easement within the Aerial Easement Property for the sole purpose of constructing, installing, maintaining, replacing and using the Bridge elevated over a portion of the Corridor Property within the Aerial Easement Property, as a pedestrian walkway for the use of the general public (the "Aerial Easement"), expressly subject to the terms and conditions of this Agreement. The Overall Aerial Easement Property described in Exhibit "B" covers approximately fifty (50) linear feet in length along the southeasterly line of the Corridor Property and fifty (50) linear feet in length along the northwesterly line of the Corridor Property, containing an area of approximately 3,090.5 square feet. Subject to subsection (i) below, Grantee shall determine the location of the Aerial Easement Property from within the Overall Aerial Easement Property by providing notice to Grantor ofthe fifteen (15) linear feet in length along the southeasterly line of the Corridor Property and the fifteen (15) linear feet in length along the northwesterly line of the Corridor Property, encompassing a total area of no more than 927.15 square feet, upon which the Grantee will construct, at the time it chooses, the Bridge, with such aerial space being set forth as the Aerial Easement Property. Upon receipt of such notice from Grantee of the determination of the Aerial Easement Property, the parties will enter into an amendment ofthis Agreement to set forth the legal description of the Aerial Easement Property, and to release from this Agreement the Overall Aerial Easement Property in its entirely. The legal description of the Aerial Easement Property shall be prepared by a Florida licensed surveyor, at the sole cost and expense of the Grantee. (i) If the Grantee has not determined the location ofthe Aerial Easement Property from within the Overall Aerial Easement Property within two (2) years after the Effective Date of this Agreement (the "Two Year Period"), the Overall Aerial Easement Property shall be reduced by the Grantee to no greater than fifteen (15) linear feet in length along the southeasterly line of the Corridor Property and fifteen (15) linear feet in length along the northwesterly line of the Corridor Property, encompassing a total area of no more than 927.15 square feet upon which the Grantee will construct, at the time it chooses, the Bridge , with such aerial space being set forth as the Aerial Easement Property. In the event Grantee does not notify Grantor in writing of its determination of the Aerial Easement Property before the expiration of the Two Year Period, then, at any time thereafter, provided that the Grantor first gives the Grantee written notice ("Notice") of its intention to exercise its Right to Determine the Aerial Easement Property (as hereinafter defined) and the Grantee fails to give Grantor written notice of its determination of the Aerial Easement Property within thirty (30) days of the date of the Notice, then the Grantor shall have the right to determine the location of the Aerial Easement Property (the "Right to Determine the Aerial Easement Property"). The parties will enter into an amendment to this Agreement to release the Overall Aerial Easement Property in its entirety from this Agreement and to set forth the legal description of the Aerial Easement Property. The legal description of the Aerial Easement Property shall be prepared by a Florida licensed surveyor, at the sole cost and expense of the Grantee. 2. Nonexclusive Easements. The Aerial Easement granted to Grantee hereunder is nonexclusive and nothing set forth herein shall be interpreted in any way to permit the use of the Aerial Easement for any purpose other than the purposes set forth in paragraph 1 above. Nothing herein shall be interpreted in any way to restrict Grantor's, and the easement holders' right to access, license, sell, transfer or otherwise use or allow the use in any way to the Aerial Easement Property, except in a manner which would materially interfere with use of the Aerial Easement Property for the Page 2 of 16 purposes set forth herein. The Aerial Easement acquired does not entitle Grantee the right to obstruct, prevent, prohibit or restrict any activities or facilities that are located underground, below the surface of the Corridor Property or Grantor's adjacent property by Grantor or its easement holders (whether existing as of the date of the this Agreement or in the future), it being acknowledged and agreed by Grantee that any such subgrade and subterranean facilities and activities are permitted and retained, notwithstanding the interests acquired herein. Furthermore, the interest acquired does not entitle Grantee to obstruct, prevent, prohibit or restrict any activities or facilities on or within the above -ground portion of the Corridor Property up to the bottom plane of the vertical space of the Aerial Easement Property, or Grantor's adjacent property by Grantor or its easement holders, including, without limitation, for the safe and efficient operation of railroad operations and facilities, it being acknowledged and agreed by Grantee that such matters are permitted and retained, notwithstanding the interests acquired herein. 3. Grantees' Responsibilities. All construction, installation, inspection and maintenance of the Bridge (i) shall be subject to the terms and conditions of the Railroad Reimbursement Agreement (as hereinafter defined); and (ii) shall be performed in such a manner and at such times as to cause no disruption to the operation of any business of the Grantor, or any easement holders. The Grantee agrees that the Bridge, when completed, and Grantee's use of the Aerial Easement Property shall not interfere with the use of the Aerial Easement Property, the Corridor Property, or Grantor's adjacent property by Grantor or any easement holders, including, without limitation, the use of any facilities or structures installed or operating therein from time to time. In constructing, installing, inspecting and maintaining the Bridge, Grantee shall comply with all applicable laws, regulations and ordinances, including but not limited to all applicable regulatory, environmental and safety requirements, at Grantee's sole cost and expense. Grantee will not use or allow the use on the Aerial Easement Property or the Corridor Property of any material or substance that is defined as a hazardous waste, material or substance under any law or regulation in violation of any such laws. Grantee shall be responsible for any damage to the property of Grantor, or property of any easement holders, including but not limited to the Corridor Property, resulting from any exercise of its rights herein granted. Grantee shall promptly repair and restore to its original or better condition any of the property of Grantor, or any easement holders, and their respective employees, agents, licensees and contractors that may be altered, damaged or destroyed in connection with the exercise by Grantee, its employees, agents or contractors of the rights herein granted, or in connection with the use of the Bridge by any person whomsoever. At all times during the construction, installation, inspection and maintenance of the Bridge, Grantee shall maintain all necessary drainage facilities to prevent the accumulation of surface water on the Grantor's, or its easement holders' property due to the performance of the activities of the Grantee, its employees, agents or contractors pursuant to this Agreement. 4, Indemnification. Grantee shall indemnify, defend and hold harmless Grantor, its easement holders, and their respective officers, directors, employees, members, parent company, subsidiaries, affiliates and lenders against any actions, claims, loss or damages arising out of, relating to, or resulting from the use and operation of the Aerial Easement by Grantee, or any of its officers, agents, contractors, licensees, invitees or employees. 5. Liens. Grantee shall not cause liens of any kind to be placed against the Corridor Property. Page 3 of 16 6. Notices. All notices, requests, demands, consents, approvals and other communications which are given hereunder, shall be in writing and shall be deemed to have been duly given if mailed, postage prepaid by registered mail or certified first class mail, return receipt requested, postage prepaid, addressed to the party to receive such notices as set forth below, which address may be changed by notice to the other parties: As to Grantor: With a copy to: As to Grantee: With a copy to: Florida East Coast Railway, L.L.C. 7411 Fullerton Street Suite 300 Jacksonville, Florida 32256 Attn: Legal Department Florida East Coast Railway, L.L.C. 7411 Fullerton Street Suite 300 Jacksonville, Florida 32256 Attn: Secretary City of Miami, a municipal corporation of the State of Florida 444 SW 2nd Avenue, 3`d Floor Miami, Florida 33130 Attn: Director, Department of Real Estate and Asset Management City of Miami City Manager Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Or to such addresses which may be designated in lieu of the above addresses by providing written notice as provided above to the other parties. 7. Covenants Running with the Land. All terms, conditions, provisions, and obligations of this Agreement shall be covenants running with the land and shall inure to the benefit of and be binding upon the parties and their respective successors and assigns until the termination of this Agreement. Notwithstanding the foregoing, this Agreement shall automatically terminate if at any time the Bridge ceases on a permanent basis to be used as a public pedestrian walkway. In such instance, if a termination occurs and Grantor so requests, Grantee shall promptly remove the Bridge. Removal shall be done in compliance with all applicable laws and regulations and in a manner that causes no damage or loss to the Corridor Property or Grantor's, or its easement holders' property and that of their respective employees, agents and contractors. Pre -Condition. Prior to Grantee accessing the Corridor Property, or the Aerial Easement Page 4 of 16 Property, to perform any construction (including without limitation, any pre -construction activities), maintenance, inspection, repairs, rehabilitation, replacement, or removal of the Bridge (collectively the "Work"), Grantee shall execute and deliver to Grantor and AAF (as hereinafter defined), Grantor's and AAF's form of license and reimbursement agreement governing such activities in the Corridor Property (the "Railroad Reimbursement Agreement"), which agreement shall contain provisions providing for, but not limited to, the following: (a) The contractor performing any Work shall comply with the insurance requirements set forth on Exhibit "C" attached hereto and made a part hereof (the "Insurance Requirements"), and indemnify, defend and save harmless the Grantor, AAF and FEC ROW (as hereinafter defined) from and against all judgments, and all loss, claims, damages, costs, charges, and expenses which it may suffer, sustain, or in anywise be subjected to on account of or occasioned by the operations of the contractor, or any of the subcontractors, or both, whether directly or indirectly under, or pursuant to, the construction contract. (b) Grantee shall reimburse Grantor and/or AAF for the cost of the watchman or flagging services reasonably required with respect to work on or adjacent to the Corridor Property, upon its receipt of an invoice detailing such services. (e) Grantee shall comply with all of Grantor's and AAF's safety requirements and shall cooperate with Grantor AAF and FEC ROW to ensure the safety of the track or tracks during the time of the Work, and in the event Grantor, FEC ROW and/or AAF provides any support or assistance requested by Grantee, Grantee shall pay to Grantor, FEC ROW, or AAF, as applicable, within thirty (30) days after bills shall have been rendered therefore, all reasonable expense incurred by Grantor, FEC ROW or AAF in connection therewith. (d) The Grantee shall comply with all Federal rail engineering requirements and standards in the design, construction, and operation of the Bridge, and any other requirements reasonably required by FECR and/or AAF. 8. Miscellaneous. (a) No Waiver. No delay or omission in the exercise of any right accruing to any party under this Agreement shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time. A waiver by any party of a nonconforming condition or noncompliance with the terms and conditions set forth in this Agreement shall not be construed to be a waiver of any subsequent nonconforming condition or noncompliance. (b) Effect of Invalidation. If any particular provision of this Agreement is held to be invalid by any court, the validity of such provision shall not affect the validity of the remaining provisions hereof. Page 5 of 16 (c) Counterparts. This Agreement maybe executed in multiple counterparts, each of which shall be deemed to be an original agreement, and all of which shall constitute one agreement. (d) Time of Essence. Time is of the essence with respect to the performance of each of the covenants and agreements contained in this Agreement. (e) Controlling Law. This Agreement shall be construed in accordance with the laws of the State of Florida. (f) Third Party Beneficiary. The terms and provisions of this Agreement are for the benefit of the parties hereto and, except as herein specifically provided herein, no other person shall have any right or cause of action on account thereof Notwithstanding anything to the contrary in this Agreement, Grantee acknowledges and agrees that All Aboard Florida -Operations LLC, a Delaware limited liability company ("AAF"), and FEC ROW LLC, a Florida limited liability company, f/kla FDG Flagler Station II LLC ("FEC ROW"), and their respective successors and assigns, as easement holders in the Corridor Property are third party beneficiaries to this Agreement and have executed the Joinder and Consent Agreement attached hereto. (g) Entire Agreement. This document constitutes the entire agreement between the parties relating to the subject matter hereof. This Agreement may not be changed or amended except by a writing executed by all parties hereto. (h) Recording. This document shall be recorded in the public records of Miami - Dade County, Florida. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. (SIGNATURES ON NEXT PAGE) Page 6 of 16 Grantor: Signed, sealed and delivered Florida East Coast Railway, L.L.C., in the presence of: a Florida limited liability company Print Name: Print Name: STATE OF FLORIDA COUNTY OF DUVAL By: Name: Title: The foregoing instrument was acknowledged before me this day of , 2018, by , as of Florida East Coast Railway, L.L.C., who is personally known to me and who did not take an oath. Notary Public My Commission Expires: (SIGNATURES CONTINUE ON NEXT PAGE) Page 7 of 16 Grantee: City of Miami, a Municipal corporation of the State of Florida ATTEST: By: By: Todd B. Hannon City Clerk Emilio T. Gonzalez City Manager APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE AND CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Ann -Marie Sharpe, Director Risk Management Administrator The foregoing was accepted and approved on the day of , 2018, by Resolution No. of the City Commission of the City of Miami, Florida, a municipal corporation of the State of Florida. ATTEST: By: Todd B. Hannon City Clerk Page 8 of 16 JOINDER AND CONSENT AGREEMENT TO: City of Miami, a municipal corporation of the State of Florida ("Grantee"), with its mailing address at 444 SW 2nd Avenue, Miami, Florida 33130, Miami, Florida 33130. WITNESSETH: WHEREAS, FLORIDA EAST COAST RAILWAY, L.L.C., a Florida limited liability company (hereinafter referred to as "FECR") has agreed to convey and grant to the Grantee the foregoing aerial easement to construct, install, inspect, maintain and use an elevated pedestrian bridge for NW 17t Street over the real property located in Miami -Dade County, Florida, defined as the Corridor Property in the foregoing Perpetual Aerial Easement Agreement (the "Aerial Easement"); WHEREAS, FECR granted to FEC ROW LLC, a Florida limited liability company (f/k/a FDG Flagler Station II LLC) ("FEC ROW"), certain rights to use and possess the property, including the Corridor Property, pursuant to (i) a First Amended and Restated Grant of Easements dated June 13, 2014 ("Non -Rail Easement Agreement") and recorded in Official Records Book 29200, Page 952, (ii) a Bill of Sale and Non -Exclusive Use Agreement dated December 20, 2007 and recorded in Official Records Book 26134, Page 3323 ("Bill of Sale"), and (iii) a First Amendment to Bill of Sale and Non -Exclusive Use Agreement dated as of December 9, 2009 and effective as of December 20, 2007 ("First Amendment") recorded in Official Records Book 27120, Page 2305, all recorded in the Public Records of Miami -Dade County, Florida (the First Amendment, together with the Non -Rail Easement Agreement and Bill of Sale, hereinafter, collectively, referred to as the "Non -Rail Agreements"); and WHEREAS, FECR granted to All Aboard Florida - Operations LLC, a Delaware limited liability company (f/k/a FDG Passenger Row Holdings LLC) ("AAF") certain rights to use and possess the property, including the Corridor Property, pursuant to that certain Second Amended and Restated Grant of Passenger Service Easement (Miami to West Palm Beach) dated June 13, 2014 and recorded in Official Records Book 29200, Page 1014, of the Public Records of Miami -Dade County, Florida (collectively, the "Passenger Easement Agreements"). NOW THEREFORE, for and in consideration of the premises and the terms and conditions herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties agree as follows: 1. The foregoing recitals are true and correct and are expressly incorporated into and made part of this Agreement as if fully rewritten herein. 2. Subject to the terms of this Agreement, FEC ROW and AAF do hereby and herewith consent to and join with FECR in the Aerial Easement. 3. It is expressly understood and agreed that this Agreement shall not be construed as a limitation on the rights of FECR, FEC ROW and or AAF to amend, modify or otherwise supplement, from time to time, the Non -Rail Agreements, the Passenger Easement Agreements and/or rights thereunder. Further, this Agreement and the terms and provisions of the Aerial Easement that affect the Non -Rail Agreements and/or the Passenger Easement Agreements may not be amended or Page 9 of 16 modified except by a written instrument executed by FEC ROW and AAF that is recorded in the Public Records of Miami -Dade County, Florida. 4. This Agreement shall inure to the benefit of, and is binding upon, all the parties hereto and their respective successors and/or assigns. 5. This Agreement shall be construed according to the laws of the State of Florida. Any action arising under or relating to this Agreement shall be venued in Miami -Dade County, Florida, and all parties acknowledge and consent to the jurisdiction of the courts located in such county. To encourage prompt and equitable resolution of any litigation that may arise with respect to this Agreement, the parties hereby waive any rights any of them may have to a trial by jury of any such litigation. Signed, sealed and delivered in the presence: FEC ROW LLC, a Florida limited liability company By: Print Name: Name: Its: Print Name: ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company By: Print Name: Name: Its: Print Name: Page 10 of 16 STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 2018, by as of FEC ROW LLC, a Florida limited liability company, on behalf thereof, who is personally known to me or who produced as identification. My Commission Expires: STATE OF FLORIDA Notary Public in and for the County and State last aforesaid. COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of , 2018, by as Vice President of All Aboard Florida -Operations LLC, a Delaware limited liability company, on behalf thereof, who is personally known to me or who produced as identification. My Commission Expires: Notary Public in and for the County and State last aforesaid. Page 11 of 16 Exhibit "A" Corridor Property Page 12 of 16 Exhibit "B" Overall Aerial Easement Property Page 13 of 16 Exhibit "C" FLORIDA EAST COAST RAILWAY, L.L.C. ("FECR"), FEC ROW LLC ("FEC ROW") AND ALL ABOARD FLORIDA — OPERATIONS LLC ("AAF") INSURANCE REQUIREMENTS A. Liability Insurance. During the Term of this Contract, Contractor shall purchase and maintain; (i) Commercial Liability Insurance )"CGL"), with contractual liability covering obligations assumed in this Contract (including any agreements entered into between the parties pursuant hereto) by Contractor, providing for available limits of not less than $6,000,000 single limit, bodily injury and/or property damage combined, for damages arising out of bodily injuries to or death of all persons in each occurrence and for damage to or destruction of property, including the loss of use thereof, in each occurrence, including Federal Employers Liability Act claims ("FELA") against the FECR, FEC ROW and/or AAF, or other liability arising out of or incidental to railroad operations; (ii) at FECR's option, Contractor will obtain a policy of Railroad Protective Liability with liability limits of $2,000,000 per occurrence, $6,000,000 aggregate with FECR as the only names insured; (iii) at AAF's option, Contractor will obtain a policy of Railroad Protective Liability with liability limits of $2,000,000 per occurrence, $6,000,000 aggregate with AAF as the only names insured (iv) Statutory Workers' Compensation, Employer's Liability Insurance with available limits of not less than $1,000,000 and Occupational Disease Insurance; (v) if any motor vehicles are used in connection with the Services to be performed hereunder (or in connection with any agreements entered into between the parties pursuant hereto), Business Automobile Liability Insurance with limits not less than $ 1,000,000 single limit, bodily injury and/or property damage combined, for damages to or destruction of property including the loss of use thereof, in any one occurrence; and (v) if professional services are being rendered by Contractor, Professional Liability coverage in an amount not less than $1,000,000. If, in FECR's, FEC ROW's and/or AAF's opinion, a higher limit of liability is necessary for any insurance policy required hereunder, FECR, FEC ROW and/or AAF, as applicable, shall so notify Contractor and Contractor shall, within thirty (30) days of receipt of such notice, provide a copy of the endorsement to the appropriate policy increasing the liability coverage to the required limit. Such insurance will include a minimum of two years' tail coverage necessary to cover claims occurring during the Term but which may not be brought until after termination of this Contract. B. Policy Requirements. All insurance required hereunder shall be affected by valid and enforceable policies issued by insurer(s) of financial responsibility and authorized to do business in all necessary states, all subject to the reasonable prior approval of FECR, FEC ROW and AAF. Contractor's liability insurance policies shall name FECR, FEC ROW and AAF, and each's respective, parent, affiliates and subsidiaries as additional insureds and will not have any exclusion for liability relating to railroad operations or contractual liability for construction or demolition within fifty (50) feet of FECR's and/or AAF's tracks by endorsement. Contractor's Workers' Compensation and property insurance policies shall include waivers of subrogation rights endorsements in favor of FECR, FEC ROW and AAF. All policies shall contain a provision for thirty (30) days' written notice to FECR, FEC ROW and AAF prior to any expiration or termination of, or any change in, the coverage provided. Contractor shall provide FECR, FEC ROW and AAF with at least thirty (30) days' written notice prior to such expiration, termination or change in any insurance coverage. Insurance Company must be issued by a casualty company/insurance company Page 14 of 16 authorized to do business in the State of Florida that has a "Best's" rating of A or A+ and a financial category size of Class XII or higher. Prior to any entry upon FECR, FEC ROW and/or AAF property pursuant to this Contract and upon FECR's, FEC ROW's and/or AAF's request thereafter, Contractor shall provide or shall cause its insurer or insurance agent to provide FECR, FEC ROW and AAF (at the address set forth below in this Schedule 1) with a certificate of insurance certifying the liability insurance policies in effect for the Term of this Contract. The liability assumed by Contractor under this Contract, including, but not limited to, Contractor's indemnification obligations, shall not be limited to the insurance coverage stipulated herein. C. Addresses for Notices. Any notice to be given or to be served upon FECR, FEC ROW and/or AAF hereunder, shall be in writing and shall be given by certified or registered United States mail, postage or delivery charge prepaid, return receipt requested, by personal delivery or by nationally recognized overnight express delivery service (such as FedEx) addressed to the person and address designated below: With respect to FECR: Florida East Coast Railway, L.L.C. 7150 Philips Highway Jacksonville, Florida 32256 With a copy to: Florida East Coast Railway, L.L.C. Office of the General Counsel 7411 Fullerton Street Suite 100 Jacksonville, Florida 32256 With respect to FEC ROW: FEC ROW, LLC 7411 Fullerton Street, Suite 301 Jacksonville, Florida 32256 With a copy to: FEC ROW, LLC 7411 Fullerton Street Suite 100 Jacksonville, Florida 32256 Attention: Legal Department With respect to AAF: All Aboard Florida Operations LLC 161 NW 6th Street Suite 900 Miami, Florida 33136 With a copy to: All Aboard Florida — Operations LLC 2855 S. Le Jeune Road 4th Floor Coral Gables, Florida 33134 Attn: Legal Department Page 15 of 16 The person and address to which notices are to be given may be changed at any time by FECR, FEC ROW and/or AAF, respectively, upon written notice to the other parties. All notices given hereunder shall be deemed given upon the date of delivery of the notice or other document, or in the case of refusal to accept delivery or inability to deliver the notice or other document, the date of the attempted delivery or refusal to accept delivery. Page 16 of 16