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Home My Public Portal About2021-50 Approving and accepting a public beach access easement and dedication agreement with the Sands of Key Biscayne Condominium Association, IncRESOLUTION NO. 2021-50 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYN E, FLORIDA, APPROVING AND ACCEPTING A PUBLIC BEACH ACCESS EASEMENT AND DEDICATION AGREEMENT WITH THE SANDS OF KE Y BISCAYN E CONDOMINIUM ASSOCIATION, INC. RELATING TO THE PROPERTY LOCATED AT 605 OCEAN DRIVE; PROVIDING FOR IMPLEMENTATION; AND PROVIDING FOR AN EFFECTIVE DATE. WHERE AS, the Village of Key Biscayne ("Village") desires to be accepted into the U.S. Ann y Corp s of Engineers feasibility study for entry into the long term (SO-year) federal shoreline protection program (the "Re-Nouri shm ent Program"); and WHEREAS, as a condition of the Re-Nouri shm ent Program , the Village is required to ensure that the general public has access to the beaches located withi n the Village at certai n designated intervals; and WH ERE AS, Th e Sands of Key Biscayne Condominium Association, Inc. has voluntari ly agreed to gran t the Villag e a public beach access easement entitled "Public Access Easement and Dedication Agreement" (the "Easement") on the property located at 605 Ocean Drive; and WHEREAS, the Village Coun cil desires to approve an d accept the Easement, in substan tially the sam e form atta ched hereto as Exh ibit "A"; and WHERE AS, the Village Council finds that this Resolution is in the best interest and welfare of the residents of the Village. NOW, THERE FORE , BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KE Y BISCAYNE, FLORIDA, AS FOLLOWS: Section 1. Recitals Adopted. Each of the above stated recitals are hereby adopted, confirm ed an d incorporated herein. 1 Section 2. Easement Approved and Accepted. The Village Council hereby approves and accepts the Easement, in substantially the form attached hereto as Exhibit "A," subject to the Village Attorney's approval as to form, content and legal sufficiency. Section 3. Implementation. The Village Manager is hereby authorized to take any and all steps necessary to implement the intent and purpose of this Resolution. S ection 4. adoption. Effective Date. This Resolution shall be effective immediately upon PASSED and ADOPTED this~ day of O-"-ct=o=be=r __ , 2021. ATTEST: OCLYNB0CH IL AGECLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: ~J~ WEISS SEROTA HELFMAN COLE & BIERMAN, P.L. VILLAGE ATTORNEY 2 T HI S IN S T R U ME N T P RE P A RE D B Y AND S H O U L D B E RE T URN E D T O : Eduardo M. Soto, Esq. Weiss Serota Helfrnan Cole & Bierman, P.L. 2525 Ponce de Leon Blvd., Suite 700 Coral Gables, Florida 33134 1111111111111111111111 IIIII IIIII 1111111111111 C:FN 202:tR0764368 OR BK 32790 Pgs 2505-2511 (7Pss) RECORDED 10/13/2 21 13:30:47 HARVEY RUVINi CL RK OF COURT MIAMI-DADE COUNT , FLORIDA For Recording Purposes Only PUBLIC ACCESS EASEMENT AND DEDICATION AGREEMENT TIDS PUBLIC ACCESS EASEMENT AND DEDICATION AGREEMENT (this "Agreement") is made this \ 31~ day of oc...--+o ~ , 2021, by The Sands of Key Biscayne Condominium Association, Inc., a Florida non-profit corporation, (hereinafter referred to as the "Grantor"), and the Village of Key Biscayne, a Florida municipal corporation (hereinafter referred to as the "Village"). 1. . Grantor owns fee simple title to certain real property located in Miami-Dade County, Florida, and more specifically within the boundaries of the Village, as more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (the "Easement Area"); 2. The Village has determined that its beaches are in need of re-nourishment and in connection therewith has requested federal assistance ("Re-Nourishment Program"); 3. As a condition of the Re-Nourishment Program, the Village is required to ensure that the general public have access to the beaches located within the Village ("Village Beaches") at certain designated intervals; 4. The Village has determined that the Easement Area is a suitable access point as required by the Re-Nourishment Program; 5. Grantor has agreed to grant the general public access to the Villag:~~~~ to the Village undertaking the obligations as set forth in this Agreement. NOW, THEREFORE, for and in consideration of the premises and DOLLARS ($10.00) and other good and valuable consideration, the receipt whi ch is hereby ackn owledged, the part ies hereto do hereby agr ee as fo llow s: 1. Recitals. The parties acknowledge that the foregoing recitals are true and correct and are hereby incorporated into this Agreement as is fully set forth herein. 2. Dedication of Beach Access Easements. Granter does hereby dedicate, grant and convey to the Village, the Easement Area as described on Exhibit A attached hereto, for the benefit of the general public, for the purposes of pedestrian and bicycle ingress and egress to and from the Village Beaches or Atlantic Ocean, allowing for the use and benefit of the Village Beaches, including the right of access and ingress and egress for maintenance vehicles for Village Beach maintenance and re-nourishment, and emergency vehicles and Village operations for public, health, safety and welfare purposes. Maintenance vehicles on the Easement Areas for routine (daily or weekly) beach maintenance purposes shall be limited to All Terrain Vehicles (ATV) and/or similar vehicles. In connection with non-routine beach re-nourishment performed by the Village, the Village (and/or its contractor or vendor) may utilize larger vehicles, as necessary with advance reasonable notice provided to Granter. The Village acknowledges that a fence currently encroaches into the Easement Area which the Village shall not disturb or otherwise remove; provided however that the encroachment shall not be rebuilt in the event it is destroyed by casualty. 3. Purpose and Use of Beach Access Dedication/Easement. The intent and purpose of the dedication granted to the Village on the Easement Area is to provide exclusive and perpetual unrestricted and year-round pedestrian, bicycle and limited vehicular access to and from the beach or Atlantic Ocean to the Village, for the use and benefit of its residents and all users or parties designated by the Village, as well as the right of access and ingress and egress for maintenance vehicles for beach maintenance and re-nourishment, and emergency vehicles and Village operations for public, health, safety and welfare purposes. The Village shall have the right to temporarily close and/or restrict use and access of the Easement Area, including closures for beach maintenance and re-nourishment purposes, provided, the Village provides Granter with written advance reasonable notice of such closure ( and in the event of emergency situations requiring immediate closure, no notice by the Village shall be required). Notwithstanding the foregoing, vehicular access shall be limited to maintenance, re-nourishment, emergency situations, and access for individuals with disabilities only. 4. Improvements to Beach Easement Areas; Maintenance and Repair. Village shall install and construct, at its sole cost and expense, certain improvements on the Easement Area, to make the Easement Area suitable for pedestrian, bicycle and limited vehicular (golf cart) (as per 3. above) access, including (a) installation of a paved path and/or walkway on the Beach Easement Areas; (b) landscaping; ( c) fencing, and ( d) limited lighting as approved by applicable governmental and permitting agencies (the improvements described in (a), (b), (c) and (d) above shall be hereinafter collectively referred to as the "Improvements"). The Village shall maintain and repair the Easement Area and the Improvements, at its sole cost and expense, in s~~~ ..... good working condition and such that pedestrian and vehicular access is not · obstructed. The Village shall keep the Easement Area and Improvements clear and debris and rubbish and free of obstructions of every nature, and shall provide adeq and lighting thereon. No walls, fences, barriers, building, structure or any o temporary or permanent obstruction shall be constructed or erected on or over the Ea 2 that w ould im pede, im pair, block or obstruct any portion of the Easement Ar ea or prevent or lim it th e reasonable m ovem ent of pedestrian s an d vehi cles on the Easement Ar ea an d access to an d from the V ill age Beach or A tlan tic Ocean . The V illage agrees that prior to the installation of an y im pro vem ents to the Easem ent Ar ea, it wi ll submi t all proposed impro vements to the Gr antor an d to the extent possible, in corporate an y reasonable revisions to said pro posed im pro vem ents pro vided that so long as the improvem ents ar e consistent wi th the curr ent archi tectur e of the Easem ent Ar ea, the V ill age m ay in stall such improvements. 5. Incidental Rights. The rights granted herein to the V illage shall likewise include all incidental rights reasonably necessary fo r the use and enjoyment of such rights an d such incidental rights are hereby created, gr an ted, an d declared. 6. Amendment. This A gr eem ent shall not be chan ged, am ended, or modified except by an in strum ent in wr iting, executed by the part ies to thi s A greement. 7. Duration. Th e easem ent rights contained herein shall be perp etual, but may be term in ated by the V ill age, in its sole discretion, but onl y in the event that in the event there is no federal assistan ce pro vided w ith respect to the Re-N ourishm ent Program , an d the Village coun cil appro ves such term in ation after a public hear ing. 8. Covenants Running with the Land; Successors and Assigns. It is intended that each of th e dedications, easem ents, covenan ts, conditions, restrictions, rights, an d obligations set fo rt h herein shall run w ith the lan d of G ran tor an d create an equitable servitude in favor of the V ill age, its successors an d/or assigns, an d shall bin d Gr antor, its successors an d assigns (in cluding any condomi nium association an d/or or uni t own ers owni ng, opera ting or main tainin g an y part of the Easem ent Ar ea as part of a condominium ). 9. Enforcement. The V illage an d Grantor shall each have the right to pursue and legally enforce thi s A greem ent an d the dedications, easements, covenants, conditions, obligations an d restrictions set fo rth herein, including, but not limi ted to, all maintenan ce obligations of the V ill age on the Easem ent Ar ea an d repair obligations of the Village set forth in thi s A greem ent, by w hatever action or actions are legally available, including without limitation, an y equi table rem edy, injun ction or specific perfo rm an ce. The V illage and Grantor shall have the right, but shall not be obligated, to tak e such action as shall be reasonably necessary to cur e an y default of this A gr eem ent an d enfo rce the dedications, easements, covenan ts, conditions, obligations and restrictions set fo rth herein, at the sole cost an d expense of the violating party . 10. Attorney's Fees. In the event a party institutes an y legal action or proceeding fo r the enfo rcem ent of an y right or obligation herein contained, the prevailing party shall be entitled to recover its cost an d reasonable attorney's fees in curr ed in the preparatj, •~~ .... prosecution of such action or pro ceeding. ~t@CO~tth;.~ ~/ CLF.Rii~~, 11. Severability. Each provision of thi s A greement is hereby de cl 1~}} in dependent of an d severable from th e rem ainder of thi s A greement. If any pro visi ' . herein shall be held to be in valid or to be un enforceable or not to run with the lan d, s-.~u~t mi;:,. l{i ~ ' ~ .-..,..,"' sh~l _not affect the va~i~ity or enforcea?~lity _of th~ remainder o~ this Agreement. In th ~g}Jff!-}J# validity or enforceability of any provision m thi s A greem ent 1s held to be depended upon if.i~;;-, 3 existence of a specific legal description, the part ies agree to promptly cause such legal description to be prepar ed. 12. Governing Laws. The laws of the State of Florida shall govern the interpretation, validity, performance, and enforcement of this Agreement. Venue shall be in Miami-Dade County Florida. 13. Notices. All notices, requests, demands, and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; the day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); five days after being sent, if sent by certified or registered mail for each party indicated below and addressed as follows: To Grantor: With a copy to: To Village: With a copy to: The Sands of Key Biscayne Condominium Association, Inc. 605 Ocean Drive, Management Office Key Biscayne, Florida 33149 Gary M. Mars, Esq. Siegfried Rivera 201 Alhambra Circle, 11th Floor Coral Gables, Florida 33134 Village Manager 88 W. McIntyre Street Key Biscayne, Florida 33149 Village Attorney Weiss Serota Reifman Cole & Bierman, P .L. 2525 Ponce de Leon Blvd. Suite 700 Coral Gables, Florida 33134 14. Warranties and Representations. Grantor does hereby covenant and represent to Village that it is lawfully seized and possessed of the Easement Area. 15. Indemnification for Beach Maintenance and Re-Nourishment; Access Control System. Subject to the provisions and monetary limitations of Sectn Florida Statutes (as may be amended from time to time), which limitations s regardless of whether such provisions would otherwise apply, and to the exte the Village shall indemnify and hold harmless Grantor, and its successors , . , and against all costs, expenses, losses, claims or damages, including reaso ' fj~j and costs at trial and appellate levels, relating to death or personal injury to p §,6_ .~1J1'f.. -~f', d~age to property, re~ulting from, ~sing out of, or incm:ed in conn ~ P;.f , ;t;/~,.e~~h mamtenance and re-nourishment operations performed by the Village on the Ea ~J\i~, or 4 in conn ection w ith the in stallation , operation an d m ainten an ce by th e V ill age of an y gate or access contro l system installed by the V ill age on the E asem ent Ar ea, ex cept an y an d all costs, expen ses, losses, claim s or dam ages, resulting fr om , ar isin g out of, or in curr ed in conn ection an y acts or om issions, in cl udin g intentional an d negligen t acts, of G ran tor or an y of its offi cers, guests, in vitees, em ployees, agents or contr actors. A ddition al ly , th e V ill age agrees to indemn ify an d hold harm less G ra ntor, an d its successors an d/or assign s fr om an d again st all costs, expen ses, losses, cl aim s or dam ages, in cl uding reason able att orn ey 's fe es an d costs at th e tr ial an d appell ate levels in conn ection w ith an y litigation , action s, dem an ds, costs, ex pen ses, losses cl aim s or dam ag es ar isin g out of or in conn ection w ith Gr an tor's entry of the su bject A greem en t wi th the V ill age, an d in conn ection wi th th e easem ent rights contain ed h erein , in cl udin g but n ot lim ited to an y cl aim s chall engin g th e A ssociation 's authority to enter into the su bject A greem en t an d easem ent. 16. Ocean Drive Parking. The Village shall not expand or otherwise amplify parking for motor vehicles of any kind on Ocean Drive from Galen Drive to the Beach Park maintained and operated by the Village during the term of the Easement without Grantor's consent. [SIGNATURE PAGES TO FOLLOW] 5 IN WI TNESS WHE RE OF, the part ies hereto have executed thi s Agreement the day and year first above written. GRANTOR: WITNESS~- ·. ~- ~;$ Print Nam e: G kvv 'Pt£ fa. l ,'u';;; £. ~,~ Print Nam e: d~;oom Jar2c/2er:. STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) Th e foregoing instrum ent was ackn owledged before me by mean s of Jrj' physical presence or □ online notarization this .$'-& day of QG\Ci ~✓ 2021, by So-.y'(\v-,R-\ L · >0~{"'c,...~, as f~~ , on behalf of The Sands of Key Biscayne Condomini um Association, Inc. Hefflhe 'VJ is produced as identifica · [SEAL ] Notary Public, State of Florida Comm ission expires: l I~ \ S ·- ,Q., l 6 ' ' OR BK 32790 PG 2511 L A S T P A G E VI L L A G E : WI~it~: (:)~tlllt!!!. Print Name: ~ce .. t l pQ m unic ipal c By: N\.1.Js:>d,{QJName: ---,-1<-.£----- Title: ----~------ A tt est: ~cJ ~ Villge C lerif53 A pproved as to Form and L egal Su ffi ciency : ~~~ V ill age A tt om.ey ........-- . S T A T E O F FL O RI D A ) C O UN T Y O F M IAM I-D AD E ) The foregoing instrument was acknowledged before me by means of~ physical presence or□ online notarization this~ day of Oc.fober 2021, by 5-tevt.n (1__. u.)'; \l'i~~so-iofthe Village of Key Biscayne, a Florida municipal corporation, on behalf of the corporation. He l>-g is personally known to me or [ ] produced _ [SE AL ]