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HomeMy Public PortalAbout1999-02 Authorizing the easement agreement with Bellsouth Telecommunications( ( RESOLUTION NO. 99-2 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA; AUTHORIZING THE VILLAGE MANAGER TO EXECUTE THE ATTACHED EASEMENT AGREEMENT WITH BELLSOUTH TELECOMMUNICATIONS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Resolution Z-15-98 was passed and adopted on May 26, 1998 allowing three unmanned cellular communication antennas on the existing guyed pole tower facility and to build a new 425 -square -foot prefabricated equipment building on the subject property NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA AS FOLLOWS: Section 1. That the Village Manager is hereby authorized to execute the attached agreement on behalf of the Village with BellSouth Telecommunications for an easement agreement as per attachment . Section 2. This resolution shall take effect immediately upon adoption PASSED AND ADOPTED this 12th day of Janu. 1999. R JOE I. RASCO CHITA H. ALVAREZ, CMC VILLAGE CLERK APPROVE FORM AND EGAL SUFF CIENCY: RICHARD J. WEISS, VILLAGE ATTORNEY Law Offices I 2: . HOLLAND & KNIGHT LLP Atlanta Northern Virginia Boca Raton Orlando One East Broward Boulevard Jacksonville San Francisco P.O. Box 14070 (ZIP 33302-4070) Lakeland St. Petersburg Fort Lauderdale, Florida 33301 Melbourne Tallahassee 954-525-1000 Mexico City Tampa FAX 954-463-2030 Miami Washington, D.C. http://www.hklaw.com New York West Palm Beach December 1, 1998 VIA FEDERAL EXPRESS Mr. Sam Kissenger Village Manager Village of Key Biscayne 85 West McIntyre Street Key Biscayne, FL 33149 Re: Easement Agreement by and between BellSouth Telecommunications, Inc. and the Village of Key Biscayne Dear Mr. Kissenger: Please find enclosed three Easement Agreements executed by BellSouth Telecommunications, Inc. for the above -referenced matter. At the request of your counsel, Gil Pastoriza, I am forwarding this letter with the Easement Agreements directly to you. Please have this item put on the agenda of the next Village Council meeting for approval. After approval and execution by the Village of the Easement Agreements, please return two fully executed originals to me. Thank you for your attention to this matter. Very truly yours, HOLLAND & KNIG T LLP Enclosures cc: Ms. Nika Niksirat (w/encl.) Gil Pastoriza, Esq. (w/encl.) Joel Gustafson, Esq. (w/encl.) FTL 1-324983 By: EASEMENT AGREEMENT THIS EASEMENT AGREEMENT ("the Agreement") is made this day of , 1998, by and between BELLSOUTH TELECOMMUNICATIONS, INC., a Georgia corporation, whose address is 301 W. Bay Street, Jacksonville, FL 32202 ("Grantor"), and VILLAGE OF KEY BISCAYNE, a municipal corporation of the State of Florida whose address is 85 W. McIntyre Street, Key Biscayne, FL 33149 ("Grantee") . RECITALS A. Grantor is the fee simple owner of that certain parcel of real property located in Miami -Dade County, Florida, and legally described in Exhibit "A" attached hereto and made a part hereof ("the Grantor's Parcel"). B. Grantor desires to grant to Grantee a passive park easement over, across and through the Grantor's Parcel for the purposes of constructing, installing, repairing and maintaining a passive park. A passive park is defined as a park with landscaping, possible walkways and various park benches. Grantee is agreeable to accepting such easement. AGREEMENT NOW, THEREFORE, in consideration of the grants and the mutual covenants and agreements set forth herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Grantor and Grantee, the Grantor and Grantee agree as follows: 1. Recitals. The foregoing recitals are true and accurate and are incorporated herein by this reference. 2. Grant of Easement to Grantee. Grantor hereby grants and conveys to Grantee a Non -Exclusive Easement ("Easement") over, across and through the Grantor Parcel for the purpose of constructing, installing, repairing and maintaining a passive park which may include paving, curbing, drainage, walkways, landscaping and park benches. Grantor acknowledges and agrees that the rights granted hereunder to Grantee may be exercised by Grantee's agents, contractors and subcontractors in accordance with the terms of this Agreement. Grantee agrees to make the improvements for the passive park within one year of the granting of the conveyance thereof, and if the improvements are not fully completed within three years, then this grant of easement is cancelled and all rights in the Easement revert back to Grantor. 3. Termination. Grantor and Grantee, for themselves and for the respective successors and assigns, acknowledge that the Easement created hereby shall continue in full force and effect until such time as Grantee no longer uses the Easement for passive park purposes. The determination that the Easement is no longer being utilized for passive park purposes shall be made by mutual agreement of the parties. At such time as the determination is made that the Easement is no longer being used by the Grantee for passive park purposes, then this easement shall automatically terminate and the Grantor may record a Notice of Termination of Easement in the Public Records of Miami -Dade County, Florida. 4. Grantor's Reservation of Rights. Grantor hereby reserves access rights over, across and through the Grantor's Parcel for the purpose of maintaining its guide tower supports and the maintenance and repair of the existing masonry wall adjacent to the Grantor's Parcel. 5. Insurance. Grantee will maintain insurance on the Grantor's Parcel in the amounts and with the coverages set forth below as follows: Comprehensive General Liability Insurance - said insurance to be maintained in not less than $1,000,000 per person and $2,000,000 per accident. Grantor shall be named as an additional insured. Grantee shall furnish to Grantor a certificate of insurance as evidence thereof upon execution of this Agreement and, thereafter, at least 30 days prior to the expiration of the policy. All insurance policies are required to be procured by the Grantee are to be written by insurance companies licensed to do business in the State of Florida, and such insurance companies shall have a rating of "A" Class IX or better by Best Insurance Key Rating Guide published by A.M. Best Company and a Standard and Poor's Rating group (claims paying ability) rating of BBB or better and shall bear endorsements to the effect that the Grantor shall be notified not less than ten days in advance of modification or cancellation thereof. Each policy required to be procured by the Grantor shall state that it is primary and non-contributory with any insurance policy procured by the Grantor. Renewal certificates evidenced in the insurance coverage required hereunder shall be provided at least ten days prior to the expiration of any policy. 6. Indemnification. To the extent permitted by law and without waiving any statutory liability limitations, Grantee shall indemnify and hold Grantor, BellSouth Mobility and BellSouth Telecommunications, and any of these companies affiliates their officers, directors, tenants, agents, contractors, employees, or licensees harmless ("Indemnitees") (except for loss or damages resulting from the tortious acts of Indemnitees) from and against any damages, liability actions, claims, and expenses, including attorney's fees in connection with the loss of life, personal injury and/or damage to property arising or out of any occurrence in or upon such Grantor's Parcel, or occasion wholly or in part by any act or omission of Grantee, its officers, directors, tenants, agents, contractors, employees, or licensees. 7. Notices. Any and all notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to be valuable 2 given or made upon receipt, provide notices sent by certified or registered mail (return receipt requested, postage pre -paid) or by overnight courier service which delivers only upon signed receipt of the addressee and addressed as follows: To Grantor: Mr. D. Hollingsworth 301 W. Bay Street Jacksonville, FL 32202 With a copy to: BellSouth Telecommunications Legal Department 150 West Flagler Drive Suite 1910 Miami, FL 33130 To Grantee Village of Key Biscayne / Attn: S. Kissinger 85 West McIntyre St. Key Biscayne, FL 33149 With a copy to: Richard Weiss, Esq. 2665 S. Bayshore Dr. Suite 420 Miami, FL 33133 Either party may from time to time change the address to which such notices or communications may be delivered or sent by giving the other party written notice of such change. Except as otherwise provided, notices and other communications shall be deemed received on the date of delivery, unless delivery is refused or cannot be made in which event the date of attempted delivery shall be the date of notice. 8. Time is of the Essence. Time is of the essence of this Agreement. 9. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Florida. 10. Venue. In any dispute arising out of the terms or conditions of this Agreement, venue shall be deemed to be proper in Miami -Dade County, Florida. 3 11. Attorneys' Fees. If it shall be necessary for either party to this Agreement to bring suit, to construe, interpret or enforce any provisions of this Agreement or for damages on account of any breach of this Agreement, the prevailing party shall be entitled to recover from the losing party, in addition to any damages or other relief granted as a result of such litigation, all reasonable attorneys' fees and reasonable court costs at all levels of litigation. 12. Miscellaneous. a. This Easement, during its lifetime, shall be and constitute a covenant running with the land. b. Grantee acknowledges that Grantor is granting this Easement to assist in Grantee's beautification and enhancement efforts in the area. Grantee agrees to make an appropriate public acknowledgment of Grantor's contribution toward those ends. c. In the event Grantee fails to perform any obligations specified in this Agreement, then Grantor may, after continuance of any such default for thirty days after written notice, or in the event of an emergency reasonable notice under the circumstances, Grantor may cure such defaults all on behalf of and at the expense of Grantee and perform all necessary work and make all necessary payments in connection therewith. Grantee shall reimburse the Grantor for the reasonable amount so paid by the Grantor, together with interest thereon at the rate of twelve percent (12%) per annum or (or the highest rate permitted by law, whichever is lower) from the date of payment by the Grantor until repayment by the Grantee. d. No barrier's, curbing, hedging, walls, structures or other improvements shall be erected or constructed by Grantee which will close off, block or unreasonably obstruct Grantor's access for maintenance of its guide tower supports and the maintenance and repair of the existing masonry wall as referenced in Paragraph 4 herein. e. It is acknowledged that the Grantor is retaining the fee title rights to the easement parcel and the Grantee agrees in its governmental capacity that the set back and related zoning regulations shall be measured from the fee title property line and not the eastern easement parcel line. 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates set forth below. GRANTOR WITNESSES: BELLSOUTH TELECOMMUNICATIONS, INC. sign print -f e ()A va 7) 5 sign' print R. M. Webber title Director, Property & Services Management print C 46; date GEORGIA STATE OF YAMADA ss.: COUNTY OF FULTON The foregoing instrument was 1998, by 1e. . ide, . ,- , as ,, -/�! of e/1 D�,�� e �a �.►�,►,,�..�►��. .�.. a - _ , corporation, on b alf of e corporation. He/she is personally known to me or produced as identification and did/did not take an oath. "" , 1998 acknowledged before me this 32/.. day of NOTARY PUBLIC: sign .Z J 70 print tl,«mv W. State of Florida at Lam (Seal) My Commission Expires: Notary Public, o kinnett Count% GeorgM, My Commission Expires October 9, 2000. 5 GRANTEE ATTEST : 44Zs iets- nchita H. Alvarez Village Clerk (Seal) STATE OF FLORIDA ) ) COUNTY OF ) ss.: VILLAGE OF KEY BISCAYNE By Samuel Kissinger Village Manager , ay of WY./ APPROV O FO _., Ty__,„ Village Attorne 1999 I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was acknowledged before me by Samuel Kissinger, Village Manager and Conchita H. Alvarez, Village Clerk, respectively, of the VILLAGE OF KEY BISCAYNE, a municipal corporation, freely and voluntarily under authority duly vested in them by said municipal corporation on behalf of said municipal corporation, and that the seal affixed thereto is the true corporate seal of said corporation. They are personally known to me or who has produced as identification and who DID/DID NOT take an oath. 1�,..._ WIT day of � , 199 ' FTL1-301940.3 6 y hand and official seal in the County and State last aforesaid this ,Lz., print .c) /6_ Ceeaue_s State of Florida at Large (Seal) My Commission Expires: btLL SOUTH MOBILITY FHKB CELL SITE N LEGAL DESCRIPTION of LANDSCAPE EASEMENT: A portion of Tract "B", "BISCAYNE KEY ESTATES", Plat Book 50, at Page 61, of the Public Records of Dade County, Florida, more particularly described as follows COMMENCE at a Permanent Reference Monument (P.R M.) at the point of curvature on the Easterly Side of Tract "B", near its Southeast Corner, thence run Southwardly 29.39 feet along the Easterly Boundary of Tract "B", said boundary being the arc of a curve to the left, having a radius of 1206.28 feet, a central angle of 1°23' 46" to a point of reverse curvature of a curve to the right; thence run Southwestwardly 39.88 feet along the Southeasterly Boundary of Tract "B", said boundary being the arc of a curve to the right, having a radius of 25.00 feet, a central angle of 91023'46" to a point of tangency on the South Boundary of Tract "B", thence run on an assumed bearing WEST along the South Boundary of Tract "B", tangent with the last mentioned curve a distance of 335.08 feet to the POINT OF BEGINNING of the Easement hereinafter to be described; thence continue WEST along the South Boundary of Tract "B" a distance of 15.00 feet to a point of curvature of a curve to the right; thence run Northwestwardly 38 80 feet along the Southwesterly Boundary of Tract "B", said boundary being the arc of a curve to the right, having a radius of 25.00 feet, a central angle of 88°54'47" to a point of compound curvature of a curve to the right; thence Northwardly 30 47 feet along the Westerly Boundary of Tract "B", said boundary being the arc of a curve to the right, having a radius of 1606 28 feet, a central angle of 1005'13" to a point of tangency on the West line of Tract "B", thence run NORTH along the West Boundary of Tract "B", a distance of 145.00 feet to a point on a Line parallel with and 200 00 feet North of the South Boundary of Tract "B"; thence run EAST along a Line parallel with and 200 00 feet North of the South Boundary of Tract "B" for a distance of 20.00 feet, thence run South, parallel with said Westerly Boundary of Tract "B" for a distance of 185 00 feet; thence run East, parallel with the said South Boundary of Tract "B" for a distance of 20.28 feet; thence run South for a distance of 15 00 feet to the POINT OF BEGINNING. NOTE: 1.)See Boundary Survey under File No. 8-1467, Dated 6-4-1998, by this FIRM, for a detailed Sketch of the Legal Description described hereon. THIS LEGAL DESCRIPTIO BY: EPARED UNDER MY SUPERVISION. LEITER, PEREZ 8 ASSOCIATES{, INC. DATE: Col 4r 1 c STANLEY T. OLESI WICZ, VICE PR NT REGISTERED PROFESSIONAL SURVEYOR & MAPPER NO. 1633 STATE OF FLORIDA 111111111.111MOMMIMISOMMENIIIMPSIMMIet --- Exhibit "A" Page 1 of 2 fhkbl .Ian 11OAD 1 Ii ill t •'I i its 't1 :pi 1( `t { ( ��, 1��.itt.�i�ti`t�l its !l t�ii.t iilJ.t.if ,i�• ti+10,1 iii{t t`�t.i`i��.`i1i11r•ilt tj•1;111l' 11i:1 << J 41`1 r,;;1j11 < <1 iitidyqsling 111!;111; I E�11i�ip(itii'1i :3ti;ti1:111 s,iiiItiIriliiiIt t' A 1OXI:: 44 Devi() L 1) efiSG Mt J TN/ dOIMMONONNOMMEMMOOMNIIIIMEMOOMMOMMONNIft Exhibit "A" Page 2 of 2