HomeMy Public PortalAbout2023-27 Approving and accepting a public beach access easement and dedication agreement with the Commodore Club South, Inc.RE SOLUTION NO. 2023-27
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING
AND ACCEPTING A PUBLIC BEACH ACCESS
EASEMENT AND DEDICATION AGREEMENT WITH
THE COMMODORE CLUB SOUTH, INC. RELATING TO
THE PROPERTY LOCATED AT 199 OCEAN LANE
DRIVE; PROVIDING FOR IMPLEMENTATION; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHERE 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
WHERE 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
WHERE AS, Commodore Club South, 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 199 Ocean Lane Drive; and
WHEREAS, the Village Council desires to approve and accept the Easement, m
substantially the same form attached hereto as Exhibit "A"; 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 RE SOLVED 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.
S e c tio n 2 . E a sem en t A p p rov ed an d A ccep ted . Subject to the appro val of the
Easem ent by C om m odore Club South, Inc. and the U.S. A rm y Corps of Engineers as to the term
of the Easem ent, the V illage Council hereby appro ves the Easem ent relating to the Property, in
substantially the fo rm attached hereto as Exhibit "A." The V illage M anager is authorized to
appro ve a term fo r the Easem ent lasting either in perp etuity or as long as the V ill age participates
in the Re-N our ishm ent Pro gra m .
Section 3. Implementation. The V ill age M anager is hereby authorized to take any
and all steps necessary to im plem ent the intent and pur pose of this Resolution.
Section 4. Effective Date. This Resolution shall be effective im m ediately upon
adoption.
PASSED and ADOPTED this 6th day of Jun e 2023.
JO E I. RA SCO , M A Y O R
A T T EST :
V ILL A G E CL E RK
A PPR O V ED A S TO FO RM AN D LEG A L SU FFICIE
W E ISS SEROT A HE LFM
V IL LA G E A T TO RN EY
& BIE RM A N , P.L.
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THI S INSTRUM ENT PRE PARED BY
AND SH O ULD BE RET URNED TO:
Eduardo M. Soto, Esq.
Weiss Serota Helfman
Cole & Bierman, P.L.
2800 Ponce de Leon Blvd., Suite 1200
Coral Gables, Florida 33134
For Recording Purposes Only
PUBLIC ACCESS EASEMENT ·
AND DEDICATION AGREEMENT . .-::,
rms PUBLIC ACCESS EASEMENT AND DEDIC,.\TION AGREEMENT
(this "Agreement")' is made this __ day o( , 2022, by 'coMMODORE CLUB
SOUTH, INC., a Florida nonprofit corporation, (hereinafter referred to as the "Grantor"), and the
Village of Key Biscayne, & Florida municipal corporation (hereinafter referred toas 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 in accordance with the Memorandum from the
Village of Key Biscayne, as more particularly described in Exhibit 'B" attached hereto and by this
reference made a part hereof ("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.
NOW, THEREFORE, for and in consideration of the premises and the sum of TEN
D O L L A R S ($10 .0 0 ) an d o th er go o d an d v a lu ab le co n sid era tio n , th e receip t an d su ffi cien cy o f w h ich
is h ereb y ac k n o w led g e d , th e pa rt ie s h ereto d o h ereb y ag ree as fo ll o w s:
l. 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 that
will not compromise the safety or soundness of the sewer lines that run beneath the Easement Area.
In connection with non-routine beach re-nourishment performed by the Village, or any instance in
which the Village (and/or its contractor or vendor) may utilize vehicles larger than ATV's or
'similar vehicles, then the Village shall hot use the Easement Area, and shall use-other means of
access to the beach, including through Oceana's north beach path. 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 Dedicatio,n/Easement. The intent and purpose
of the dedication granted to the Village on the Easement Area is to provide 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 or vehicles that compromise the safety or soundness of the
sewer lines beneath the Easement Area (i.e., any vehicle larger than an ATV or similar vehicle)
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 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. The Village shall work
with Grantor to, collectively, develop a plan for access for individuals with disabilities.
4. lmprovements to Beach Easement Areas; Maintenance and Repair. Village
shall install and construct, at its sole cost and expense, and subject to Grantor's written approval,
certain improvements on the Easement Area, to make the Easement Area suitable for pedestrian,
bicycle and limited vehicular (as per Sections 2 and 3 above) access, including (a) installation of
a paved path and/or walkway on the Beach Easement Areas; (b) landscaping (including
landscaping at the entrance to the walkway); (c) fencing or other barrier, and (d) a removable
bollard(s) at the Ocean Lane Drive entrance to the Easement Area such that non-Village A TV's
and golf carts cannot use the basement Area, but that Village A TV's and similar vehicles may use
the Easement Area when required (the improvements described in (a), (b), and (c) and (d) above
shall be hereinafter collectively referred to as the "Improvements"). The Improvements shall be
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c o n s tru c te d in a m a nn e r to p ro m o te th e safe in g ress an d egress on O cean L an e D riv e. T he V illage
sh a ll m a in ta in an d rep a ir th e E a sem en t A rea an d th e Im p ro v em ents, at its so le cost and expense,
in sa fe a n d g o o d w o rk in g co n d itio n an d su ch th at p ed estrian and veh icula r access is not im paired
o r o b s tru c te d . T h e V ill a g e sh a ll k eep th e E a sem en t A rea an d Im pro vem en ts cl ear an d fr ee of tra sh,
d e b ris a n d ru b b ish an d fr ee o f o b stru ctio n s of ev ery n atu re, and sh all prov id e ad equate dra inage.
N o w a ll s, fe n c e s, b a rr ie rs, bu ild in g , stru ctu re o r any oth er so rt of tem p o ra ry or perm anent
o b s tru c tio n sh a ll b e co n stru cted or erected on or o v er the E asem ent A rea th at w ould im pede,
im p a ir, b lo c k o r o b stru c t an y p o rt io n of th e E a sem en t A rea or preven t or lim it the reasonable
m o v e m e n t o f p ed e stria n s an d veh icles on th e E asem en t Ar ea and access to an d fr om the V illage
B e a c h o r A tla n tic O c e a n . T h e V ill a g e sh all n o t in stall li gh tin g w ithin th e E asem ent A rea. T he
V ill a g e sh a ll u se fe n cin g o r a lan d scap in g ba rr ier to d irect beach goers to th e sidew alk at the
C o m m o d o re C lu b en tra n c e w h e re a cro ss w alk w ill b e in stall ed by th e V ill a ge to en sur e pedestrians
are v is ib le to d riv e rs o n O c ea n L an e D riv e . T h e V ill age sh all co n stru ct, as part of the
Im p ro v e m e n ts , a v is u a l b u ffe r an d n o ise red u c in g fe atures betw een th e E asem ent A rea and the
G ra n to r's co m m o n are a s. T h e V ill a g e ag rees th at prio r to th e in stallatio n of any im pro vem ents to
th e E a s e m e n t Area , it w ill su b m it all pro p o sed im p ro v em ents to the G ra ntor an d to the extent
p o s s ib le , in c o rp o ra te an y rea so n a b le rev isio n s to said prop osed im pro v em en ts pro vided that so
lo n g a s th e im p ro v e m e n ts a re co n sisten t w ith th e cu rren t architectur e of th e E asem ent A rea, the
V ill a g e m a y in sta ll su c h im p ro v em en ts. T h e V ill a g e w ill en sure adeq u ate po li ce presence, as
n e e d e d , at th e E a se m e n t A rea .
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 both 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 there is no federal
assistance provided with respect to the Re-Nourishment Program, and the Village council approves
such termination after a public hearing. In the event of such termination, Grantor shall have the
sole authority to determine whether the Improvements are to remain in the Easement Area or be
removed by the Village at the Village's sole cost and expense.
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
the cooperative association and/or or shareholders owning, operating or maintaining any part of
the Easement Area as part of the cooperative).
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
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not be oblig ated, to tak e such action as shall be reasonably necessary to cure any defa ult of this
A greem ent and enfo rce the dedications, easem ents, covenants, conditions, obligations and
restrictions set fo rt h herein, at the sole cost and expense of the violating party .
10 . Attorney's Fees. In thee vent a part y institutes any legal action or proceeding fo r
the enforcem en t of any right or obligation herein contained, the prevailing part y shall be entitled
to reco v er its cost an d reasonable attorn ey's fe es incurred in the prepara tion and pro secution of
such action or pro ceed ing. A ll A tt orn ey's fees and costs incurr ed in conn ection w ith the
prepara tion and neg o tiation of this A greem ent shall be paid by the V ill age.
11. Scvcrability. E ach pro vision of this A greem ent is hereby decl ared to be
in depen dent of and severable fr om the rem ainder of this A greem ent. If any provision contained
herein shall be held to be in valid or to be unenfo rceable or not to ru n w ith the land, such holding
sh all n ot affect the valid ity or enfo rceability of the rem ainder of this A greem ent. In the event the
validity or enfo rceability of any pro vision in this A greem ent is held to be depended upon the
existence of a sp ecifi c legal description, the part ies agree to pro m ptly cause such legal description
to be prep ared .
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12 . Governing Laws. T he law s of the State of Florida shall govern the interp retation,
validity, perfo rm ance, and enfo rcem ent of this A greem ent. V enue shall be in M iam i-D ade C ounty
Fl'o rid a.
1'3. Notices. A ll notices, requests, dem ands, and-other com m un ications w h ic h ar e
requ ired or m ay be giv en under this A greem ent sh all be in wr iting and shall be deem ed to have
been du ly given w h en received if personall y delivered; the day aft er it is sent, if sent fo r next day
deliv ery to a do m estic address by recognized overn ight delivery service (e.g ., Federa l Express);
fi v e days aft er bein g sent, if sent by cert ifi ed or registered m ail fo r each party indicated below and
addressed as fo llo w s:
To Grantor:
With a copy to:
To Village:
With a copy to:
V ill age M anager
88 W . M cI nty re Street
K ey Biscayne, Florida 3314 9
V ill age A ttorn ey
W eiss Sero ta H elfm an
Cole & B ierm an, P .L.
2800 P once de Leon B lvd., Suite 12 00
C ora l G ables, Florida 3 313 4
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14 . Warranties and Representations. Grantor does hereby covenant and represent to
Village that: (a) it is lawfully seized and possessed of the Easement Area; and (b) it has good and
lawful 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 and
against all costs, expenses, losses, claims or damages, including reasonable attorneys' fees and
costs at trial and appellate levels, relating to death or personal injury to persons, or loss of or
damage to property, resulting from, arising out o±: or incurred in connection with beach
maintenance and re-nourishment operations performed by the Village on the Easement Area, or in
connection with the installation, operation and maintenance by the Village of any gate or access
control system installed by the Village on the Easement Area, except any and all costs, expenses,
losses, claims or damages, resulting from, arising out of, or incurred in connection any acts or
omissions, including intentional and negligent acts, of Grantor or any of its officers, guests,
invitees, employees, agents or contractors. Additionally, the Village agrees to indemnify and hold
harmless Grantor, and its successors and/or assigns from and against all costs, expenses, losses,
claims or damages, including reasonable attorney's fees and costs at the trial and appellate levels
in connection with any litigation, actions, demands, costs, expenses, losses claims or damages
arising out of or in connection with Grantor's entry of the subject Agreement with the Village, and
in connection with the easement rights contained herein, including but not limited to any claims
challenging the Association's authority to enter into the subject Agreement and easement.
16. Ocean Drive Parking. The Village shall not expand or otherwise amplify parking for
motor vehicles of any kind on Ocean Lane Drive from Crandon Boulevard to the Easement Area
maintained and operated by the Village during the term of the Easement without Grantor's prior
written consent. The Village shall not expand or otherwise amplify parking for motor vehicles of
any kind on at or near the traffic light leading to Ocean Lane Drive on Crandon Boulevard, without
the Grantor's prior written consent. The Village shall actively enforce vehicles improperly parked
on Ocean Lane Drive, including ticketing and towing such vehicles. Further, to ensure the
organized flow of pedestrians accessing the beach through the Easement Area, 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, at the
Village's sole cost and expense, to reconfigure the sidewalk and determine an appropriate location
for a crosswalk on Ocean Lane Drive, to ensure that pedestrians leaving the Easement Area have
a safe path to cross Ocean Lane Drive, and do not inhibit vehicles from ingress and egress to and
from Grantor's property. The Village shall also add clear signage to indicate the access points to
the Easement Area from the Village Beaches. The Village shall use fencing or a landscaping
barrier to direct beach goers to the sidewalk at the Commodore Club entrance where a cross walk
will be installed by the Village to ensure pedestrians are visible to drivers on Ocean Lane Drive.
Any sidewalk and crosswalk re-configuration and/or installation shall be approved in writing by
Grantor prior to implementation. Additionally, the Village shall install a concave mirror located
across from the Island House driveway. The Village shall ensure consistent landscaping is
maintained and trimmed to no higher than 4ft. along Ocean Lane Drive, especially by the Ocean
Lane Plaza, such that drivers may view pedestrians using the sidewalk.
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18 . Bicycle Parking. The Village shall construct designated bicycle parking near the
Easement Area to be located by the beach ingress/egress.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
GRANTOR:
COMMODORE CLUB SOUTH, INC., a
Florida nonprofit corporation
WITNESSES:
Print Name: -----------
By:
Name: -------------
Title: --------------
Print Name: _
STA TE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of! physical presence
or ! online notarization this day of
as
2022, by
on behalf of
COMMODORE CLUB SOUTH, INC., a Florida non profit corporation He/she [ ] is personally
known to me or [ ] produced as identification.
[SEAL]
Notary Public, State of Florida
Commission 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
ST ATE 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 of the ---------
Village of Key Biscayne, a Florida municipal corporation, on behalf of the corporation. He [ ] is
personally known to me or [ ] produced as identification.
lSEAL]
Notary Public, State of Florida
Commission expires: _
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E X H IBIT A
A Portion of Tract 2, Matheson Estate, according to the Plat thereof as recorded in Plat Book 46,
Page 86, of the Official Records of Miami-Dade County, Florida, being more particularly
described as follows:
Commence at the Southwest comer of said Tract 2; Thence North 89° 30' 46" East, a distance of
1305.76 feet along the South line of said Tract 2; Thence North 06° 1 O' 50" East, 171.16 feet to a
point; Thence North 89° 30' 46" East 33.66 feet to a point on the right of way for Ocean Lane drive
being on a non-tangent curve concave to the Northwest, having a radius of 50.00 feet (a radial line
through said point bears South 34° 58' 54" East); Thence Northerly along the arc of said curve
through a central angle of 42° 51' 43", an arc distance of 37.40 feet to the Point of Beginning;
Thence continue along said right of way, being on a curve concave to the West having a radius of
50.00 feet (radial line through said point bears South 77° 50' 37" East); Thence Northerly along
the arc of said curve through a central angle of 14° 07' 32" an arc distance of 12.33 feet; Thence
departing said right of way South 49° 16' 34" East, 24.67 feet to a point on a non-tangent curve
concave to the Northeast, said curve having a radius of 44.23 feet (a radial line through said point
bears South 51 ° 05' 40" West); Thence Southeasterly along the arc of said curve through a central
angle of 42° 50' 39" an arc distance of 33.08 feet; Thence North 89° 29' 40" East, 601.70 feet to a
point on the erosion control line, according to the Plat thereof as recorded in Plat Book 74, Page
26 of the Official Records of Miami -Dade County, Florida; Thence along said erosion control
line, South 07° 04' 13" West, l0.09 feet; Thence departing said erosion control line, South 89° 29'
40" West. 601.10 feet to a point on a non-tangent curve concave to the Northeast said curve having
a radius of 54.23 feet (a radial line through said point bears South 07° 24' 01" West); Thence
Northwesterly along the arc of said curve through a central angle of 42° 41' 13" an arc distance of
40.41 feet; Thence North 49° 16' 34" West 16.64 feet to the Point of Beginning; said lands lying
and being in the Village of Key Biscayne, Miami-Dade County, Florida
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