HomeMy Public PortalAbout2012-19 Approving an agreement witht Consultatio Key Biscayne LLC re the Beach Renorishment ProjectRESOLUTION NO. 2012-19
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING AN
AGREEMENT WITH CONSULTATIO KEY BISCAYNE LLC
FOR A TEMPORARY ACCESS LICENSE,
INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
RELATING TO THE BEACH RENOURISHMENT PROJECT;
PROVIDING FOR AUTHORIZATION; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the Village of Key Biscayne (the "Village") has finalized the environmental
permitting for the Village Beach Renourishment Project (the "Project"); and
WHEREAS, the Village's permit for the Project provides for access to and from the public
right of way to the beach through a portion of the Consultatio Key Biscayne LLC (the "Consultatio")
property; and
WHEREAS, Consultatio and the Village desire to enter into a Temporary Access License,
Indemnification and Hold Harmless Agreement, in substantially the form attached hereto as Exhibit
"A," (the "Agreement") for the Project; and
WHEREAS, the Village Council finds that this Resolution is in the best interest and welfare
of the residents of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted. Each of the above stated recitals are hereby adopted,
confirmed and incorporated herein.
Section 2. Agreement Approved. The Village Council hereby approves the Agreement
in substantially the form attached hereto as Exhibit "A."
Section 3. Village Manager Authorized. The Village Manager is hereby authorized
to execute the Agreement, in substantially the form attached hereto as Exhibit "A," subject to the
Village Attorney's approval as to legal form and sufficiency.
Section 4. Effective Date. This Resolution shall be effective immediately upon
adoption.
PASSED AND ADOPTED this 24rh day of April , 2012.
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CONCHITA H. ALVAREZ, MMC, VILLAGE CLE �. r
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EXHIBIT "A"
TEMPORARY ACCESS LICENSE,
INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
THIS TEMPORARY ACCESS LICENSE, INDEMNIFICATION AND HOLD
HARMLESS AGREEMENT is made and entered into as of the day of , 2012, by
and between CONSULTATIO KEY BISCAYNE LLC, a Florida Limited Liability Company,
having an address of 1200 Brickell Avenue, Suite 1950, Miami, Florida
33131 (the "Consultatio") and the VILLAGE OF KEY BISCAYNE, a Florida municipal
corporation having an address at 88 W. McIntyre Street
Key Biscayne, Florida 33149 (the "Village").
RECITALS:
WHEREAS, the Village desires to commence a Beach Renourishment Project within the
Village; and
WHEREAS, prior to commencement, the Village is required to obtain permits from the
necessary regulatory agencies; and
WHEREAS, Consultatio is the owner of certain real property located in Miami -Dade
County, Florida commonly known as the former Sonesta hotel property and more particularly
described on Exhibit "A" attached hereto and made a part hereof (the "Consultatio Property");
and
WHEREAS, the Village has represented to the regulatory agencies that it intends to
utilize the Consultatio Property for ingress and egress access to and from the beach as a part of
the Beach Renourishment Project; and
WHEREAS, as such, the Village has requested a non-exclusive license for ingress and
egress (the "License") over and across the portion of the Consultatio Property described in
Exhibit "B" attached hereto and made a part hereof (the "License Area"); and
WHEREAS, Consultatio agrees to grant the Village the License, subject to the Village
indemnifying and holding harmless Consultatio for the Village's use of the License Area.
NOW, THEREFORE, in consideration of the terms and conditions, promises and
covenants hereinafter set forth, the Village and Consultatio agree as follows:
1. Recitals. The foregoing recitals are true and correct and are incorporated herein as if
repeated at length.
2. Grant of License. Consultatio hereby grants to the Village and its agents, a non-exclusive
temporary license in favor of the Village for ingress and egress over and across the License Area
for hauling sand, equipment, and other materials to and from the beach for the Village's Beach
Renourishment Project.
3. Term of License. The License shall commence on the date hereof and shall run for the
duration of the Beach Renourishment Project.
4. Indemnification and Hold Harmless. To the maximum extent permitted under applicable
law, the Village hereby agrees to indemnify, defend (through attorneys chosen by the Village)
and hold harmless Consultatio its officials, employees, agents, successors and assigns from and
against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable
attorneys' fees actually incurred) which may at any time hereafter be asserted against or suffered
by Consultatio arising out of or resulting from any and all liability relating in any way to the
Village's exercise of its rights hereunder. Nothing in this Agreement shall be construed to affect
in any way the Village's rights, privileges, and immunities, including the monetary limitations of
liability set forth therein, under the doctrine of "sovereign immunity" and as set forth in Section
768.28 of the Florida Statutes.
5. Enforcement/Venue. The provisions of this Agreement may be enforced by all
appropriate actions at law and in equity including, without limitation, specific performance
and/or injunction, by both parties, with the prevailing party in any such action entitled to
reimbursement of reasonable attorneys' fees and costs incurred at trial and all appellate levels.
However, Consultatio and Village hereby knowingly, voluntarily and intentionally waive the
right either may have to a trial by jury in respect to any litigation based hereon, or arising out of,
under or in connection with this Agreement, or any course of conduct, course of dealing,
statements (whether verbal or written) or action of either party. Venue for any cause of action
relating to the provisions of this Agreement shall be in a court of competent jurisdiction within
Miami -Dade County.
6. Counterparts. This Agreement may be executed in any number of counterparts and by
the separate parties hereto in separate counterparts, each of which when taken together shall be
deemed to be one and the same instrument.
7. Construction. The section headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation hereof. All of the parties to this
Agreement have participated fully in the negotiation of this Agreement, and accordingly, this
Agreement shall not be more strictly construed against any one of the parties hereto. In
construing this Agreement, the singular shall be held to include the plural, the plural shall be held
to include the singular, and reference to any particular gender shall be held to include every other
and all genders.
8. Notices. Any and all notices required or desired to be given hereunder shall be in writing
and shall be deemed to have been duly given when delivered by hand or three (3) business days
after deposit in the United States mail, by registered or certified mail, return receipt requested,
postage prepaid, and addressed as follows (or to such other address as either party shall hereafter
specify to the other in writing):
For the Village: Mr. John C. Gilbert, Village Manager
88 West McIntyre Street, Suite 210
Key Biscayne, Florida 33149
Telephone: 305-365-5500
Fax Number: 305-365-8936
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For The Consultatio:
9. Severability. In the event any term or provision of this Agreement is determined by
appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its
nearest legal meaning or be construed as deleted as such authority determines, and the remainder
of this Agreement shall be construed in full force and effect.
10. Successors and Assigns. This Agreement shall not be assigned by the Village.
11. Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a
part of, this Agreement.
12. Reservation. Consultatio hereby reserves all rights of beneficial ownership in and to the
License Area which are not inconsistent with the License, including, without limitation, the right
to grant further licenses and easements on, over and/or across the License Area (i.e. utility and/or
access easements) and the improvements thereon and the right to use the License Area for all
uses not interfering or inconsistent with the uses permitted herein.
13. Amendments. Subject to the other provisions hereof, this Agreement may not be
amended or modified except by written agreement of Consultatio and the Village. The Village
Manager shall act for Village hereunder.
14. No Recording. Neither this Agreement nor any memorandum or notice hereof shall be
recorded in the public real estate records of Miami -Dade County, Florida.
15 . Entire Agreement. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supercedes all prior agreements, understandings and
arrangements, both oral and written, between the parties with respect thereto.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the
day and year first above written.
VILLAGE:
Village of Key Biscayne,
a Florida municipal corporation
By:
John C. Gilbert, Village Manager
(MUNICIPAL SEAL)
ATTEST: APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
By: By:
Conchita H. Alvarez, CMC Village Attorney
Village Clerk
STATE OF FLORIDA
SS:
COUNTY OF MIAMI-DADE
)
)
)
THIS IS TO CERTIFY, that on this day of , 2012, before me, an officer
duly authorized to take acknowledgments in the State and County aforesaid, personally appeared
John C. Gilbert, Village Manager, for the VILLAGE OF KEY BISCAYNE, A FLORIDA
MUNICIPAL CORPORATION, on behalf of the corporation, who (check one) [ ] is
personally known to me or [ ] produced a drivers license as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
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CONSULTATIO:
CONSULTATIO KEY BISCAYNE LLC,
a Florida Limited Liability Company
By:
Name:
Title:
(CORPORATE SEAL)
STATE OF FLORIDA
SS:
COUNTY OF MIAMI-DADE
)
)
)
THIS IS TO CERTIFY, that on this day of , 2012, before me, an officer
duly authorized to take acknowledgments in the State and County aforesaid, personally appeared
, as of CONSULTATIO KEY
BISCAYNE LLC, a Florida Limited Liability Company who (check one) [ ] is personally
known to me or [ ] produced a drivers license as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
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EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL
ALL THAT PIECE, PARCEL OR LOT OF LAND SITUATE, LYING AND BEING IN THE
SW % , SECTION 32 AND FRACTIONAL SECTION 33, TOWNSHIP 54 SOUTH, RANGE
42 EAST, IN THE CITY OF KEY BISCAYNE, COUNTY OF MIAMI-DADE, STATE OF
FLORIDA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
I
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COMMENCE AT THE S.W. CORNER OF TRACT 6, SUBDIVISION OF THE PORTION OF
MATHESON ESTATE ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT
BOOK 46 PAGE 86 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA; THENCE
RUN ALONG THE SOUTH LINE OF TRACT 6, EAST FOR A DISTANCE OF 1200.00 FEET
TO THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL OF LAND,
SAID POINT OF BEGINNING ALSO BEING THE S.E. CORNER OF THE PLAT OF
HOLIDAY COLONY AS RECORDED IN PLAT BOOK 50 AT PAGE 87, OF THE PUBLIC
RECORDS OF DADE COUNTY, FLORIDA, THENCE CONTINUE EAST FOR A
DISTANCE OF 761.0 FEET MORE OR LESS TO THE MEAN HIGH WATER LINE OF THE
ATLANTIC OCEAN; THENCE MEANDER NORTHWESTERLY, NORTHERLY AND
NORTHEASTERLY ALONG THE MEAN HIGH WATER LINE OF THE ATLANTIC
OCEAN FOR A DISTANCE OF 518.3 FEET MORE OR LESS TO A POINT LYING 500.00
FEET NORTH OF THE SOUTH LINE OF TRACT 6 EXTENDED EAST AS MEASURED AT
RIGHT ANGLES; THENCE RUN WEST ALONG A LINE 500.00 FEET NORTH OF, AND
PARALLEL TO, THE SOUTH LINE OF SAID TRACT 6, AS MEASURED AT RIGHT
ANGLES, FOR A DISTANCE OF 631.9 FEET MORE OR LESS TO A POINT; THENCE
RUN SOUTH 0°18'55" WEST FOR A DISTANCE OF 327.79 FEET TO A POINT; THENCE
RUN NORTH 89 24'30" WEST FOR A DISTANCE OF 157.55 FEET TO A POINT OF NON -
TANGENCY WITH A CIRCULAR CURVE CONCAVE TO THE WEST, THE CENTER OF
WHICH BEARS NORTH 89°51'26" WEST FROM THE AFOREMENTIONED POINT OF
NON -TANGENCY; SAID POINT ALSO BEING A POINT ON THE EASTERLY LINE OF
BLOCK 5 OF THE PLAT OF HOLIDAY COLONY, AS RECORDED IN PLAT BOOK 50,
PAGE 87 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, THENCE RUN
SOUTHERLY ALONG THE ARC OF SAID CIRCULAR CURVE HAVING FOR ITS
ELEMENTS A CENTRAL ANGLE OF 394'04" AND A RADIUS OF 3081.59 FEET FOR A
DISTANCE OF 173.96 FEET TO THE POINT OF BEGINNING.
AND
PARCEL 2
ALL THAT PIECE, PARCEL OR LOT OF LAND SITUATE, LYING AND BEING IN THE
SW '/. , SECTION 32, TOWNSHIP 54 SOUTH, RANGE 42 EAST, IN THE CITY OF KEY
BISCAYNE, COUNTY OF MIAMI-DADE, STATE OF FLORIDA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
rw-
COMMENCE AT THE S.W. CORNER OF TRACT 6, SUBDIVISION OF THE PORTION OF
MATHESON ESTATE ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT
BOOK 46 PAGE 86 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA; THENCE
RUN ALONG THE SOUTH LINE OF TRACT 6, EAST FOR A DISTANCE OF 1200.00 FEET
TO A POINT OF NON -TANGENCY WITH A CIRCULAR CURVE CONCAVE TO THE
WEST THE CENTER OF WHICH BEARS NORTH 86°37'22"WEST FROM THE
AFOREMENTIONED POINT OF NON -TANGENCY, SAID POINT ALSO BEING THE SE
CORNER OF THE PLAT OF HOLIDAY COLONY, AS RECORDED IN PLAT BOOK 50,
PAGE 87 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA; THENCE RUN
NORTHERLY ALONG THE ARC OF SAID CIRCULAR CURVE, HAVING FOR ITS
ELEMENTS A CENTRAL ANGLE OF 3°14'04" AND A RADIUS OF 3081.59 FEET FOR A
DISTANCE OF 173.96 FEET TO THE POINT OF BEGINNING OF THE FOLLOWING
DESCRIBED PARCEL OF LAND; THENCE CONTINUE NORTHERLY AND
NORTHWESTERLY ALONG THE ARC OF SAID CIRCULAR CURVE HAVING FOR ITS
ELEMENTS A CENTRAL ANGLE OF 10°46'23" AND A RADIUS OF 3081.59 FEET FOR A
DISTANCE OF 579.42 FEET TO A POINT ; SAID POINT ALSO BEING A POINT ON THE
SOUTHERLY RIGHT OF WAY LINE OF EAST DRIVE; THENCE RUN ALONG THE SAID
RIGHT WAY LINE, EAST FOR A DISTANCE OF 160.62 FEET TO A POINT OF
CURVATURE WITH A CURVE CONCAVE TO THE SOUTHWEST; THENCE RUN
ALONG THE ARC OF SAID CURVE HAVING FOR ITS ELEMENTS A CENTRAL ANGLE
OF 80°19'47" AND RADIUS OF 25.00 FEET FOR A DISTANCE OF 53.03 FEET TO A
POINT OF COMPOUND CURVATURE WITH A CIRCULAR CURVE CONCAVE TO THE
WEST, SAID POINT ALSO BEING A POINT ON THE WESTERLY RIGHT OF WAY LINE
OF OCEAN BOULEVARD; THENCE RUN SOUTHERLY ALONG THE SAID WESTERLY
RIGHT OF WAY LINE ON THE ARC OF THE CIRCULAR CURVE HAVING FOR ITS
ELEMENTS A CENTRAL ANGLE OF 4°03'53" AND A RADIUS OF 3260.29 FEET FOR A
DISTANCE OF 231.29 FEET TO A POINT; THENCE LEAVING THE SAID RIGHT OF
WAY LINE, RUN WEST 1.87 FEET TO A POINT; THENCE RUN SOUTH 0°38'55"WAET
FOR A DISTANCE OF 327.79 FEET TO A POINT ; THENCE RUN NORTH 89°24'30"
WEST FOR A DISTANCE OF 157.55 FEET TO THE POINT OF BEGINNING.