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HomeMy WebLinkAboutExhibit - EasementDSG— 11 -3-16 This Instrument Prepared by Victoria Mendez Office of the City Attorney City of Miami 444 SW 2nd Avenue, Ste. 945 Miami, FL 33130-1910 GRANT OF EASEMENT THIS INDENTURE, made this day of , 2016, between THE FIRST PRESBYTERIAN CHURCH OF MIAMI, FLORIDA, a Florida not-for-profit corporation (hereinafter called "GRANTOR"), and THE CITY OF MIAMI, a municipal corporation of the State of Florida, whose mailing address is 444 SW 2nd Avenue, Floor 10, Miami, Florida 33130 (hereinafter called "GRANTEE"); WITNESSETH: 1. The GRANTOR, for and in consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged by the GRANTOR, subject to and in accordance with the provisions of this instrument, has granted and does hereby grant to the GRANTEE, its successors and assigns, a perpetual, non-exclusive easement on the property of the GRANTOR (hereinafter called the "EASEMENT"), with the GRANTOR'S property being described on EXHIBIT "A" attached hereto and made a part hereof, and the EASEMENT being shown and described on EXHIBIT "B" attached hereto and made a part hereof, to construct, install, operate, and maintain, all at the expense of the GRANTEE, a public baywalk (the "BAYWALK") for the use and benefit of the general public, with the right to reconstruct, improve, change, and remove, all at the expense of the GRANTEE, all or any of the improvements within the EASEMENT, with the full right of ingress thereto and egress therefrom over the areas shown for same on EXHIBIT "B" hereto, on the express condition that it is used for the express purposes provided herein, subject to the provisions of Section 7 of this EASEMENT. 1 2. Subject to the GRANTOR'S reserved rights in this instrument, the GRANTEE shall regulate the installation and future operations of the EASEMENT so as not to conflict with normal operations of the GRANTOR; however, the GRANTEE shall have full right to enter upon the EASEMENT during normal business hours for construction, maintenance and other normal operations, or at any time when emergency repairs of the EASEMENT are required. 3. The GRANTOR grants this EASEMENT for a BAYWALK to the GRANTEE for the sole purpose of providing an area for outdoor recreational purposes within the meaning of 5 375.251(2) (a), Fla. Stat., as amended. Both GRANTOR and GRANTEE agree that the EASEMENT shall be used by the public for the limited purpose of pedestrian, bicycle and non- vehicular access, and who will enjoy free access to such EASEMENT, subject to the GRANTOR'S reserved rights in this instrument, with no charge made for entry to or use and enjoyment of the EASEMENT itself. GRANTOR and GRANTEE further agree that no revenue shall ever be derived by the public's patronage of the EASEMENT. To the extent allowed by and subject to the limitations of 5 768.28, Fla. Stat., GRANTEE acknowledges responsibility, if any, for personal injury, loss, or damage resulting in whole or in part from the negligence of the GRANTEE or general public's use of the EASEMENT attributable to the negligence of GRANTEE. Nothing herein shall be construed as an assumption of liability by the GRANTOR resulting from public use of the EASEMENT or any acts or omissions of the GRANTEE within or adjacent to or while accessing the EASEMENT. 4. The GRANTEE, during the course of installation and future operation of the EASEMENT, shall not encroach beyond the boundaries of the EASEMENT or any other easement that may be granted by the GRANTOR. 5. In addition to the respective obligations of the parties as stated herein, the GRANTOR and the GRANTEE agree to the following conditions governing the EASEMENT: 5.1 Prior to commencing any construction or other ground disturbing work on the EASEMENT, GRANTEE shall provide a site plan or conceptual plan to GRANTOR showing the proposed work. The site plan or conceptual plan shall be subject to 2 GRANTOR'S consent, which GRANTOR shall not unreasonably withhold. Any material change in such plans after approval by GRANTOR, as well as any new improvements on the EASEMENT after initial construction, shall also be subject to GRANTOR'S consent prior to GRANTEE performing such work. GRANTOR shall not unreasonably withhold its consent. GRANTOR shall provide its written consent or its objections and any comments to GRANTEE no later than 60 business days after receipt of GRANTEE'S site plan or conceptual plan. If, after the 60 business days have expired, the GRANTOR has not provided its written consent or its objections, the plan shall be deemed approved and GRANTEE may proceed. No construction or permitting activity may be commenced until the GRANTOR consents in writing to GRANTEE'S site plan or conceptual plan. 5.2 GRANTEE shall provide written notice to GRANTOR, no fewer than 72 hours before entering upon the EASEMENT for any construction, maintenance or other work, except that no such advance written notice is required in the case of an emergency. An emergency shall include, but not be limited to, any condition that in the GRANTEE'S judgment could cause an injury to persons or damage to the GRANTOR'S or GRANTEE'S property. In the case of entrance upon the EASEMENT for emergency work, GRANTEE shall provide written notification to GRANTOR of such entrance as soon as practicable thereafter. N6, 5.3 GRANTEE shall at all times maintain the BAYWALK in a good, clean and safe condition, and in compliance with all laws, ordinances, and other legal requirements. Failure to do so shall constitute a breach by GRANTEE. Upon notice from GRANTOR of a breach, GRANTEE shall cure the breach and return the BAYWALK to a clean and safe condition within the timeframes enumerated in Section 5.3.1 — 5.3.3, inclusive. Failure to cure the breach within the enumerated timeframe shall allow GRANTOR to cure the breach itself and GRANTEE agrees to promptly reimburse GRANTOR for its reasonable costs associated with curing such breach. 3 5.3.1 For deficient cleanliness or sanitary conditions, the cure period shall be seven (7) days from the time notice is deemed delivered pursuant to Section 12. 5.3.2 For deficient condition of any paver, lighting fixture (if any), drainage structure, or other hardscape surficial improvement, the cure period shall be one hundred twenty (120) days from the time notice is deemed delivered pursuant to Section 12. 5.3.3 For deficient condition of any seawall, sheet piling, fill, or other structural subjacent support system the cure period shall be one hundred twenty (120) days from the time notice is deemed delivered pursuant to Section 12 provided that the cure period may be extended by mutual agreement of GRANTOR and GRANTEE, neither of which shall unreasonably withhold consent thereto, if such deficient condition is so severe as to require such additional time to remedy. 5.4 Any maintenance, repairs or replacements by GRANTEE shall be made using materials consistent with, or of better quality than, the materials used in the original construction of the BAYWALK. 5.5 GRANTEE shall promptly repair and restore any damage it may cause to GRANTOR'S property located adjacent to or outside the EASEMENT. GRANTOR may elect to make emergency repairs to the BAYWALK at GRANTOR'S sole discretion. GRANTEE agrees to promptly reimburse GRANTOR for its reasonable costs associated with making such emergency repairs. 5.6 If GRANTEE removes the BAYWALK from the EASEMENT, GRANTEE shall promptly return the property to its original condition which for the purposes of this EASEMENT, shall mean removal of the pavers, landscaping, lighting, drainage structures, and utilities attributable to the BAYWALK, re -grading of the land in accordance with the Florida Building Code and other applicable laws, and re -sodding. In no event shall "original condition" mean the removal of any fill, sheet pilings, seawall, or other subjacent support system. Should GRANTEE fail to return the property to its original condition, GRANTOR may make reasonable repairs to return the property to such original condition. GRANTEE 4 agrees to promptly reimburse GRANTOR for its reasonable costs associated with returning the property to its original condition. 6. In addition to the reservation of rights stated herein, the GRANTOR reserves the following rights: 6.1 GRANTOR hereby reserves for GRANTOR and GRANTOR'S guests, invitees, successors and assigns the right of full ingress and egress over, under and across the EASEMENT for any purpose that is not inconsistent with the use of the EASEMENT for the BAYWALK including, without limitation, for using or developing GRANTOR'S waterfront for any permissible purpose, including marinas, docks and other water facilities, and for the installation, maintenance and replacement of utilities and other facilities. 6.2 GRANTOR reserves and shall have the right to regulate public use of the EASEMENT to the extent necessary to control access to any of GRANTOR'S waterfront facilities and GRANTOR'S parking and other facilities adjacent to the EASEMENT, and to control theft or other violation of property or personal rights in the event of civil riot or other emergency; provided, however, that the BAYWALK shall be open to public pedestrian and non -motorized vehicles from sunrise to sunset or consistent with the hours of operation of the GRANTEE'S pathway system. 6.3 GRANTOR retains the right to locate or place, at its sole discretion on a temporary basis, any equipment or property upon the EASEMENT as shall be reasonably necessary for future development of GRANTOR'S property, subject to a traffic control plan approved by the Ci . GRANTOR shall make reasonable efforts to maintain public access. 6.4 Nothing herein shall be construed to impair GRANTOR'S current and future rights with respect to parking and future development of GRANTOR'S property, subject to the EASEMENT. GRANTEE and GRANTOR agree that the existence and use of the EASEMENT shall not be negatively construed against the GRANTOR when applying any land use, zoning, permitting, or other present or future provision of GRANTEE'S code of ordinances or other laws. GRANTEE acknowledges that as of the date of the execution of 5 this EASEMENT, a 40 / 50 year structural and electrical recertification, mandated by Section 8-5 of the Miami -Dade County Code, standing alone, does not require GRANTOR provide its own baywalk connection pursuant to the City Charter and Miami2l . 6.5 GRANTOR reserves any and all rights not expressly granted in this Agreement or the Grant. 7. Termination of the EASEMENT. 7.1 In addition to any manner of termination recognized at law, GRANTOR shall have the right to vacate GRANTEE'S interest in the EASEMENT if any of the following conditions apply: 7.1.1 The EASEMENT is no longer used by GRANTEE for the purpose for which it was granted; or 7.1.2 GRANTEE fails to commence construction of the BAYWALK on or before December 31, 2019. For the purposes of this Section 7.1.2, "commencing construction" shall mean that the City (A) expends monies allocated to the BAYWALK project pursuant to a contract between the GRANTEE and a vendor; or, (B) a work order directly related to the BAYWALK project shall have been issued by a GRANTEE department. 7.1.3 GRANTEE fails to substantially complete construction of the BAYWALK on or before December 31, 2023, provided that this date may be extended by mutual agreement of GRANTOR and GRANTEE, neither of which shall unreasonably withhold consent. GRANTOR and GRANTEE acknowledge that construction of the BAYWALK involves permitting and approvals from governmental entities other than the GRANTEE for which the GRANTEE has no ability to alter or expedite the review of said approvals, including but not limited to those by the United States Army Corps of Engineers and Miami -Dade County Department of Environmental Resources Management, or any other applicable non -City agencies and that any extension due to delay solely attributable to review and approvals by outside agencies 6 shall be consented to by GRANTOR and GRANTEE provided that GRANTEE makes a continuous good -faith attempt to finalize said reviews and approvals by outside agencies. 8. This EASEMENT, together with the Grant and any subsequent schedules or exhibits hereto, which are incorporated herein by reference, is the entire agreement between the parties and supersedes all their prior discussions, agreements, understandings and representations, whether verbal or written, with regard to its subject matter. 9. To the greatest extent permitted by law, GRANTEE covenants that it is self-insured and shall permanently maintain the BAYWALK. Furthermore, GRANTEE covenants that it shall not commence suit against the GRANTOR for any loss, liability, cost, expense, or damage (including attorneys' fees at the dispute resolution, trial and appellate levels) arising out of or connected with any negligence, recklessness or intentional conduct of GRANTEE in the use, construction, maintenance or removal of the BAYWALK. 10. This EASEMENT may be amended or altered only by written agreement of the parties. 11. The GRANTOR does hereby affirm that it has full power and authority to grant this EASEMENT and GRANTEE accepts the property in "as -is, where -is" condition. 12. All notices, requests, consents and other communications required or permitted under this EASEMENT shall be in writing (including electronic communications) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, telecommunicated, or mailed (airmail if international) by registered or certified mail (postage prepaid), return receipt requested, or sent by any form of overnight mail, addressed to: TO GRANTOR: The First Presbyterian Church of Miami, Florida 609 Brickell Avenue Miami, FL 33131 TO GRANTEE: City of Miami Attn: City Manager 7 444 SW 2nd Avenue, Floor 10 Miami, FL 33130-1910 WITH COPIES TO: City of Miami Office of the City Attorney 444 SW 2nd Avenue, Suite 945 Miami, FL 33130-1910 City of Miami Director of Capital Improvements and Transportation Program 444 SW 2nd Avenue, Floor 8 Miami, FL 33130-1910 or to such other address as any party may designate by notice complying with the terms of this paragraph. Each such notice shall be deemed delivered (A) on the date delivered if by personal delivery; (B) on the date telecommunicated if by telegraph; (C) on the date of transmission with confirmed receipt if by email, telex, telefax or other telegraphic method; (D) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed; or (E) one day after mailing by any form of overnight mail service. '** r [Signatures appear on next page.] IN WITNESS WHEREOF, the GRANTOR herein has caused these presents to be executed in its name on the day and year first above written. FIRST PRESBYTERIAN CHURCH OF MIAMI, FLORIDA, a not-for-profit corporation of the State of Florida Christopher Atwood Pastor Witnesses: Signature Signature Print Name Print Name STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by He/She is ❑ personally known to me or ❑ has produced identification and who did take an oath. as Witness my signature and official seal this day of , 2015, in the County and State aforesaid. [Signature page to Easement] ATTEST: Todd B. Hannon City Clerk GRANTEE: CITY OF MIAMI, a municipal corporation of the State of Florida Daniel J. Alfonso City Manager APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez City Attorney STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was accepted and approved on the day of 520165 by Resolution No. of the City Commission of the City of Miami, Florida, a municipal corporation of the state of Florida. ATTEST: Todd B. Hannon City Clerk [Signature page to Easement] EXHIBIT "A" LEGAL DESCRIPTION OF GRANTOR'S PROPERTY [Signature page to Easement] EXHIBIT "B" LEGAL DESCRIPTION OF EASEMENT [Signature page to Easement]