HomeMy Public PortalAbout2022-15 Approving and accepting a public beach access easement and dedication agreement with the Island House Apartments, Inc.RE SOLUTION NO. 2022-15
A RE SOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, .FLORIDA, APPROVING
AND A(:CEPTING A PUBLIC BEACH ACCESS
EASEMENT AND DEDICATION AGRE EM ENT WITH
THE ISLAND HOUSE APARTMENTS, INC. RE LATING
TO THE PROPERTY LOCATED AT 200 OCEAN LANE
DRIVE; PROVIDING FOR IM PLEMENTATION; AND
PROVIDING FOR AN EFFECTIVE DATE.
W HERE AS, the Village of Key Biscayne ("Village") has been accepted into the U.S.
Army Corps of Engineers feasibility study for entry into the long term (50-year) federal shoreline
protection program (the "Re-Nourishment Program"); and
W HERE AS, as a condition of the Re-Nourishment Program, the Village is required to
ensure that the general public has access to the beaches located within the Village at certain
designated intervals; and
W HERE AS, Island House Apartments, Inc. has voluntarily agreed to grant the Village a
public beach access easement entitled "Public Access Easement and Dedication Agreement" (the
"Easement") on the property located at 200 Ocean Lane Drive; and
WH ERE AS, the Village Council desires to approve and accept the Easement, m
substantially the same form attached hereto as Exhibit "A"; and
W HERE 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 RE SOLVED 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,
confirmed and incorporated herein.
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Section 2. Easement Approved and Accepted. Subject to the approval of the
Easement by Island House Apartments, Inc., the Village Council hereby approves and accepts
the Easement, in substantially the form attached hereto as Exhibit "A."
S ect ion 3. Im plem en tation . The Village Manager is hereby authorized to take any
and all steps necessary to implement the intent and purpose of this Resolution.
S ect ion 4.
adoption.
E ffecti ve D ate. This Resolution shall be effective immediately upon
PASSED and ADOPTED this 12th day of---=-A.,,.,p=ria,:...l __ _,, 2022.
w ,
ATTEST:
WEISS SEROTA HELFMAN COLE & BIERMAN, P.L.
VILLAGE ATTORNEY
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EXHIBIT "A"
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Eduardo M. Soto, Esq.
Weiss Serota Helfman
Cole & Bierman, P.L.
2525 Ponce de Leon Blvd., Suite 700
Coral Gables, Florida 33134
For Recording Purposes Only
PUBLIC ACCESS EASEMENT
AND DEDICATION AGREEMENT
THIS PUBLIC ACCESS EASEMENT AND DEDICATION AGREEMENT
(this "Agreement") is made this __ day of-----~ 2022, by The Island House
Apartments, Inc., a Florida 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 Village Beaches subject
to the Village undertaking the obligations as set forth in this Agreement.
NPW, THEREFORE, for and in consideration of the premises and the sum of TEN
DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of
...
w hich is hereby ackn ow ledged, the part ies hereto do hereby agree 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. Grantor 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 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 Grantor. The Village acknowledges· that the Easement
Area lies above sewer lines and shall take all reasonable precautions to not disturb or otherwise
damage the sewer lines.
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 beach maintenance and emergency vehicles and Village operations for public, health, safety
and welfare purposes, provided however that the use of sirens shall be prohibited on the
Easement Area. The Village shall have the right to temporarily close and/or restrict use and
access of the Easement Area, including closures for beach maintenance purposes, provided, the
Village provides Grantor 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 safe and
good working condition and such that pedestrian and vehicular access is not impaired or
obstructed. The Village shall keep the Easement Area and Improvements clear and free of trash,
debris and rubbish and free of obstructions of every nature, and shall provide adequate drainage
and lighting thereon. No walls, fences, barriers, building, structure or any other sort of
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t e m p o ra ry o r p e rm a n e n t o b s tru c tio n s h a ll b e c o n s tru c te d o r e r e c te d o n o r o v e r th e E a s e m e n t Ar e a
t h a t w o u ld im p e d e , im p a ir , b lo c k o r o b s tru c t a n y p o rt io n o f th e E a s e m e n t A r e a o r p r e v e n t o r
lim it t h e r e a s o n a b le m o v e m e n t o f p e d e s tr ia n s a n d v e h icl e s o n th e E a s e m e n t A r e a a n d a c c e s s to
a n d fr o m th e V ill a g e B e a c h o r A tl a n tic O c e a n . T h e V ill a g e s h a ll c o n s tru c t, a s p a rt o f th e
I m p ro v e m e n ts , a v is u a l b u ffe r a n d n o is e r e d u c in g fe a tu r e s b e tw e e n th e E a s e m e n t A r e a a n d th e
G r an t o r 's c o mm o n ar e a s . T h e V ill a g e a g r e e s th a t p r io r to th e in s ta ll atio n o f a n y im p ro v e m e n ts to
th e E a s e m e n t A r e a , it w ill s u b m it a ll p ro p o s e d im p ro v e m e n ts to th e G ra n to r a n d to th e e x te n t
p o s s i b l e , in c o rp o ra te a n y r e a s o n a b le r e v is io n s to s a id p ro p o s e d im p ro v e m e n ts p ro v id e d th a t s o
lo n g a s t h e im p ro v e m e n ts a r e c o n s is t e n t w ith th e c u rr e n t a r c h ite c tu r e o f th e E a s e m e n t A r e a , th e
V i ll a g e m ay in s t a ll s u c h im p ro v e m e n t s .
5 . Incidental Rights. The rights granted herein to the Village shall likewise include
all incidental rights reasonably necessary for the use and enjoyment of such rights and such
incidental rights are hereby created, granted, and declared.
6. Amendment. This Agreement shall not be changed, amended, or modified
except by an instrument in writing, executed by the parties to this Agreement.
7. Duration. The easement rights contained herein shall be perpetual, but may be
terminated by the Village, in its sole discretion, but only in the event that in the event there is no
federal assistance provided with respect to the Re-Nourishment Program, and the Village council
approves such termination after a public hearing.
8. Covenants Running with the Land; Successors and Assigns. It is intended that
each of the dedications, easements, covenants, conditions, restrictions, rights, and obligations set
forth herein shall run with the land of Grantor and create an equitable servitude in favor of the
Village, its successors and/or assigns, and shall bind Grantor, its successors and assigns
(including any condominium association and/or or unit owners owning, operating or maintaining
any part of the Easement Area as part of a condominium).
9. Enforcement. The Village and Grantor shall each have the right to pursue and
legally enforce this Agreement and the dedications, easements, covenants, conditions,
obligations and restrictions set forth herein, including, but not limited to, all maintenance
obligations of the Village on the Easement Area and repair obligations of the Village set forth in
this Agreement, by whatever action or actions are legally available, including without limitation,
any equitable remedy, injunction or specific performance. The Village and Grantor shall have
the right, but shall not be obligated, to take such action as shall be reasonably necessary to cure
any default of this Agreement and enforce the dedications, easements, covenants, conditions,
obligations and restrictions set forth herein, at the sole cost and expense of the violating party.
10. Attorney's Fees. In the event a party institutes any legal action or proceeding
for the enforcement of any right or obligation herein contained, the prevailing party shall be
entitled to recover its cost and reasonable attorney's fees incurred in the preparation and
prosecution of such action or proceeding.
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11. Severability. Each provisron of this Agreement is hereby declared to be
independent of and severable from the remainder of this Agreement. If any provision contained
herein shall be held to be invalid or to be unenforceable or not to run with the land, such holding
shall not affect the validity or enforceability of the remainder of this Agreement. In the event the
validity or enforceability of any provision in this Agreement is held to be depended upon the
existence of a specific legal description, the parties agree to promptly cause such legal
description to be prepared.
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:
Village Manager
88 W. McIntyre Street
Key Biscayne, Florida 33149
Village Attorney
Weiss Serota Helfman
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: (a) it is lawfu lly seized and possessed of the Easement Area; and (b) it has good and
lawfu l authority and right to enter into this Agreement and convey said easements.
15. Indemnification for Beach Maintenance and Re-Nourishment; Gate and
Access Control System. Subject to the provisions and monetary limitations of Section 768.28,
Florida Statutes ( as may be amended from time to time), which limitations shall be applicable
regardless of whether such provisions would otherwise apply, and to the extent permitted by law,
the Village shall indemnify and hold harmless Grantor, and its successors and/or assigns, from
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a n d a g a in s t a ll c o s ts , e x p e n s e s , lo s s e s , cl a im s o r d a m a g e s , in cl u d in g re a so n a b le a tt o rn e y s ' fe e s
a n d c o s t s at tr ia l a n d ap p e ll a te le v e ls , r e la tin g to d e a th o r p e r s o n a l inju ry to p e r so n s , o r lo s s o f o r
d a m a g e to p ro p e rt y , r e s u lt in g fr o m , a r is in g o u t o f, o r in c u rr e d in c o nn e c tio n w ith b e a c h
m a in te n a n c e a n d r e -n o ur is hm e n t o p e ra tio n s p e r fo rm e d b y th e V ill a g e o n th e E a s e m e n t A re a , o r
in c o nn e c t io n w ith th e in s ta ll a tio n , o p e ra tio n a n d m a in te n a n c e b y th e V ill a g e o f a n y g ate o r
a c c e s s c o n tro l s y s te m in s t a ll e d b y th e V ill a g e o n th e E a s e m e n t A r e a , e x c e p t a n y a n d a ll c o s ts ,
e x p e n s e s , lo s s e s , cl a im s o r d a m a g e s , r e s u lt in g fr o m , a r is in g o u t o f, o r in c u rr e d in c o nn e c tio n a n y
a c t s o r o m is s io n s , in c lu d in g in te n tio n a l a n d n e g lig e n t a c ts , o f G ra n to r o r a n y o f its o ffi c e r s ,
g u e s ts , in v it e e s , e m p lo y e e s , a g e n ts o r c o n tra c to r s . A d d itio n a ll y , th e V ill a g e a g re e s to in d e m n ify
a n d h o ld h a rm le s s G ra n to r , a n d its s u c c e s s o r s a n d /o r a s s ig n s fr o m a n d a g a in st a ll c o sts ,
e x p e n s e s , lo s s e s , cl a im s o r d am a g e s , in cl u d in g r e a s o n a b le a tto rn e y 's fe e s a n d c o sts a t th e tria l
a n d a p p e ll a te le v e ls in c o nn e c tio n w ith a n y litig a tio n , a c tio n s , d e m a n d s , c o s ts , e x p e n se s , lo s s e s
cl a im s o r d a m a g e s a r is in g o u t o f o r in c o nn e c tio n w ith G ra n to r 's e n try o f th e s u bje c t A g re e m e n t
w ith th e V ill a g e , an d in c o nn e c tio n w ith th e e a s e m e n t r ig h ts c o n ta in e d h e r e in , in cl u d in g b u t n o t
lim it e d to a n y cl a im s c h a ll e n g in g th e A s s o c ia tio n 's a u th o r ity to e n te r in to th e s u bje c t A g re e m e n t
a n d e a s e m e n t.
16. Ocean Drive Parking. The Village shall not expand or otherwise amplify parking
for motor vehicles of any kind on Ocean Lane from Crandon Boulevard to the Easement Area
maintained and operated by the Village during the term of the Easement without Grantor's
consent. Further, the Village shall construct a "freebee" stop on Ocean Lane at a location to be
mutually agreed upon by the parties.
17. Sidewalk Improvements. The Village shall consult with a traffic engineer to
reconfigure the sidewalk and determine an appropriate location for a crosswalk on Ocean Lane,
to ensure that pedestrians leaving the Easement Area have a safe path to cross Ocean Lane. The
Village shall add clear signage to indicate the access points to the Easement Area from the
Village Beaches.
18. Bicycle Parking. The Village shall construct designated bicycle parking near the
Easement Area at a location mutually agreed upon by the parties.
[SIGNATURE PAGES TO FOLLOW]
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IN W ITNESS W HERE OF, the parties hereto have executed this Agreement the day and
year first above written.
GRANTOR:
THE ISLAND HOUSE APARTMENTS,
INC., a Florida corporation
WITNESSES:
Print Name: _
By:
Name: -------------
Title: --------------
Print Name: _
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of □ physical presence
or □ online notarization this
as
day of 2022, by
on behalf of THE
ISLAND HOUSE APARTMENTS, INC., a Florida corporation He/she [ ] is personally known
to me or [ ] produced as identification.
[SEAL]
Notary Public, State of Florida
Comm ission expires: _
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W IT N E S S E S :
VILLAGE:
VILLAGE OF KEY BISCAYNE a Florida
municipal corporation
Print Name: _
By:
Name: _
Title: -----------
Print Name: -----------
Attest:
Village Clerk
Approved as to Form and Legal Sufficiency:
Village Attorney
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of □ physical presence
or □ online notarization this __ day of 2022, by ofthe ---------
Village of Key Biscayne, a Florida municipal corporation, on behalf of the corporation. He [ ] is
personally known to me or [ ] produced as identification.
[SEAL]
Notary Public, State of Florida
Commission expires: _
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EXHIBIT A
A 70 foot wide Private Drive over and across a portion of Tract 2, of SUBDIVISION OF A
PORTION ON MATHESON ESTATE, according to the Plat thereof, recorded in Plat Book 46,
Page 86, of the Public Records of Miami-Dade County, Florida, being more particularly
described a follows: Commence at the Southwest corner of said Tract 2; thence run East along
the South line of said Tract 2, 583.51 feet to a point; thence run North 163.01 feet to the Point of
Beginning on the Southerly right-of-way line of the following described Private Drive; thence
continue North along a line, which is the East line of a 70 foot wide right-of-way, recorded
December 3, 1965, in Official Records Book 4846, Page 73, of the Public Records of Miami-
Dade County, Florida, for a distance of 75.74 feet to a point on the Northerly right-of-way line of
said Private Drive, said point being on a curve concave to the Northwest and bearing South
24°53'01" East from the center of said curve; thence run Northeast along the arc of said curve,
having for its elements a radius of 325 feet, a central angle of 1 °46'02", for a distance of 10.02
feet, to a Point of Tangency; thence run North 63 °20'57" East, 229 .13 feet to the Point of
Curvature of a curve concave to the South; thence run along the arc of said curve, having for its
elements a radius of 485 feet and a central angle of 73°15'49", for a distance of 620.17 feet to a
point of compound curvature, thence run Southerly, Westerly and Northerly along the arc of a
curve having for its elements a radius of 50 feet and a central angle of 214°50'46", for a distance
of 187.49 feet to a point of reverse curvature; thence run along the arc of a curve concave to the
Southwest, having for its elements a radius of 75 feet and a central angle of 46°58'20" for 61.49
feet to a point of compound curvature; thence run along the arc of a curve concave to the South,
having for its elements a radius of 415 feet and a central angle of 61 °08'15", for 442.83 feet to a
Point of Tangency; thence run South 63°20'57" West, 229.13 feet to a Point of Curvature of a
curve concave to the Northwest, thence run along the arc of said curve, having for its elements a
radius of 395 feet and a central angle of 6°23'43" for a distance of 44.09 feet to the Point of
Beginning, said point bearing South 20°15'20" East from the center of said curve.
LESS a portion of a parcel of land described in Official Records Book 5327, Page 528, of the
Public Records of Miami-Dade County, Florida, recorded December 30, 1966, more particularly
described as follows: Commence at the Southwest corner of Tract 2, of SUBDIVISION OF A
PORTION OF MATHESON ESTATE, according to the Plat thereof, recorded in Plat Book 46,
Page 86, of the Public Records of Miami-Dade County, Florida; thence run East 1431.62 feet
along the South line of said Tract 2 to a point of deflection in said South line; thence run North
6°40'04" East 171.16 feet to a point; thence run West 92.20 feet to the Point of Beginning of
parcel to be dedicated for right-of-way; thence continue West 33.66 feet to a point; thence run
South 6°40'04" West 8.43 feet to a point on a curve concave to the North and bearing South
7°17'20" West from the center of said curve; thence run Easterly along the arc of said curve,
having for its elements a radius of 50 feet and a central angle of 41°45'01" for a distance of 36.43
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fe e t to th e P o in t o f B e g inn in g , s a id p o in t b e a r in g S o u th 3 4 °2 7'4 1 " E a st fr o m th e c e n te r o f sa id
c u r v e .
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