Perpetual Easement Agreement for Revocable Seawall Permit ZC)2 o — 3 '15S
This Instrument Prepared
by and return to:
Raul J. Aguila, City Attorney
City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, Florida 33139
Perpetual Easement Agreement for Revocable Seawall Permit
This Perpetualasgment Agreement for Revocable Seawall Permit ("Agreement") is
made this(S day of Iy , 2021, by and between Brian E Raftery, as Trustee of 544
Lakeview Ct Land Trust, whdse address is 544 Lakeview Court, Miami Beach, Florida 33140
("Grantee") and City of Miami Beach, Florida, a municipal corporation organized and existing
under the laws of the State of Florida, whose address is 1700 Convention Center Drive, Miami
Beach, Florida 33139 ("City" or "Grantor") (Grantor or the Grantee may also be referred to
herein individually as a "party" or collectively as "parties").
WHEREAS, Grantee is the owner in fee simple of the real property located at
approximately 544 Lakeview Court, Miami Beach, Florida 33140 in Miami-Dade County, legally
described in Exhibit "A" attached hereto (the "Property") and the City is the owner of the
submerged lands known as and labelled as Surprise Lake (N.A.P.) on Exhibit "B", (the
"Submerged Land"); and
WHEREAS, the Property abuts the Submerged Land and includes the area containing a
seawall that currently encroaches five (5) feet and nine (9) inches into the Submerged Land (the
"Existing Seawall Area"); and
WHEREAS, Grantee needs to encroach on the Submerged Land and needs access to
use portions of the Submerged Land to perform repair and reinforcement work on the Existing
Seawall Area; and
WHEREAS, on October 17, 2018, the City Commission adopted Ordinance No 2018-
4220, which allows property owners to apply for a revocable permit for seawalls to encroach on
City submerged lands; and
WHEREAS, on October 18, 2020, the City Commission approved a revocable permit via
Resolution No. 2020-31455, attached hereto as Exhibit "C" (the "Revocable Permit"),
authorizing Grantee to repair and reinforce the Existing Seawall Area and further encroach into
City Submerged Lands for a maximum dimension of Nine (9) Feet Two (2) inches, for a total of
1,599 square feet(the "New Seawall"); and
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WHEREAS, upon approval of a revocable permit, City Code of Ordinances Section 82-
94 requires that the City shall execute a perpetual easement in favor of the applicant, in a form
reasonably acceptable to the city attorney, for as long as there is an encroachment into the
City's submerged land; and
WHEREAS, accordingly, Grantor has agreed to grant a perpetual easement to Grantee
in, on, over, through and across the Submerged Land, and to use the Submerged Land by filling
in portions of the Submerged Land, and obtaining access to the canal; and
WHEREAS, the City Manager as referenced in this Agreement shall mean the chief
executive officer of the City or such person (the City Manager's designee) as may from time to
time be authorized in writing by such administrative official to act for him with respect to any or
all matters pertaining to the administration of this Agreement on behalf of the City, except where
such authority has been expressly delegated herein to the City Commission.
NOW, THEREFORE, for and in consideration of the mutual covenants, benefits and
agreements of the parties and the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. Recitals. The above recitals are true and correct and are incorporated herein as part of
this Agreement.
2. Grant of Easement.
a. Grantor hereby grants, bargains, sells and conveys to Grantee, its successors
and assigns, for use by Grantee, its employees, agents and contractors, and
representatives and licensees, a perpetual easement for the use of the
Submerged Land to encroach a maximum dimension of Nine (9) Feet Two (2)
inches, for a total of 1,599 square feet into the Submerged Land consistent with
Resolution 2020-31455 and as described and labelled "Easement Area" on
Exhibit "B", and to use the City's Submerged Land by filling in the submerged
lands, and obtaining access to the canal in connection with the construction,
installation, operation, repair, replacement, upgrade and maintenance of the New
Seawall. The grant of easement shall last for so long as there is an
encroachment into the City's submerged lands.
3. Grantee Obligations.
a. The seawall location may not, in any circumstance, be built at a location that
would interfere with navigability. Should the proposed seawall interfere with
navigability of the City's property, then the Grantee will be required, at its sole
cost and expense, to dredge and replace the existing seawall.
b. Grantee shall be solely responsible for all maintenance and repairs of the New
Seawall, at Grantee's sole cost and expense. In the event Grantee fails to
perform any maintenance or repair work as required under this Agreement, the
City shall notify Grantee of Grantee's failure to perform said maintenance or
repair work. If Grantee has not commenced said maintenance or repair work
within sixty (60) days following notice from the City, City has the right to remove,
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maintain and repair the New Seawall, and/or restore the area within the New
Seawall where the improvements are located, and charge Grantee the direct and
actual out of pocket costs associated with all such work. In the event that
Grantee fails to pay for the work performed by the City within forty-five (45) days
of Grantee's receipt of invoice, in addition to all other remedies in equity and law,
the City may impose a lien against the Grantee's Property, consistent with
applicable law, and/or file a collection action in Circuit Court.
c. Grantee shall comply with all local, State, and federal laws.
d. Grantee shall obtain general liability coverage of not less than $1,000,000.00,
which shall include the City of Miami Beach as an additional insured, and shall
contain a waiver of subrogation endorsement. All of the applicant/permittee's
certificates shall contain endorsements providing that written notice shall be
given to the city at least 30 days prior to termination, cancellation or reduction in
coverage in the policy.
4. Amendment. This Agreement may only be modified, amended, terminated or released
by a recordable instrument executed by both parties hereto or their successors or
assigns, and providing that same is approved by the City Commission.
5. Access and Inspection. Grantor shall have access to the Property and the New Seawall
to repair utilities within any City easement, to inspect the Property and New Seawall to
assure that it is being used and maintained in accordance with the permit, or to remove
unauthorized improvements. It is understood and agreed that any City official has the
right to enter and investigate the Property or the New Seawall, to verify compliance with
the conditions of this Agreement or any applicable Laws.
6. Indemnification. Grantee agrees to hold harmless, indemnify and defend the City and its
elected and appointed officials, agents, contractors and employees (collectively "City
Indemnified Parties"), from and against any and all actions, lawsuits, claims, liabilities,
damages, judgments, sums of money, losses and expenses, in law or in equity;
including, but not limited to, reasonable attorney's fees and costs at the trial court and all
appellate levels ("Claims"), which may arise or alleged to have arisen in connection with
this Agreement, the New Seawall, the work, maintenance repair obligations, or the
Permit.
7. Notices. Any notices required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express) or mailed by certified or
registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to Grantor at: 544 Lakeview Ct Land Trust
544 Lakeview Court
Miami Beach, Florida 33140
3
With a copy to: Shubin & Bass, P.A.
46 SW 1St Street
Miami. FL 33130
Attention: Ian E. DeMello, Esq.
If to the Grantee at: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
With a copy to: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Attorney
Notices personally delivered or sent by overnight courier, or mailed in accordance with
the foregoing shall be deemed given upon receipt. The terms of this Section shall
survive the termination of this Agreement.
8. Remedies. The terms of this Agreement may be enforced by injunctive relief and any
other available remedies. In any action at law or in equity between the parties
occasioned by a default hereunder, the Prevailing Party shall be entitled to collect its
reasonable attorneys' fees actually incurred in the action from the non-prevailing party at
trial and all appellate levels. As used herein, the term "Prevailing Party" shall mean the
party who receives substantially the relief sought.
9. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Florida. The exclusive venue for any litigation arising out of
this Agreement shall be Miami Dade County, Florida. BY ENTERING INTO THIS
AGREEMENT, GRANTOR AND GRANTEE EXPRESSLY WAIVE ANY RIGHTS
EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
10. Entire Agreement. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings and arrangements, both oral and written relating to the subject matter
hereof.
11. Grantor Representations. Grantor covenants, warrants and represents (i) that Grantor
has the right, title and capacity to grant the perpetual easements granted herein, and (ii)
there are no lienholders on the Property.
12. Easements and Covenants Run with the Land. Each and all of the easements.
covenants, obligations and rights granted or created under the terms of this Agreement
are appurtenant to the Property. The provisions of this Agreement shall constitute
covenants running with the land, shall be binding upon the parties hereto, their
successors and assigns, and shall inure to the benefit of the Grantee, its successors
and/or assigns.
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13. Miscellaneous. This Agreement may be executed in any number of counterparts. each
of which shall be deemed an original. The parties to this Agreement have participated in
the negotiation of this Agreement and have been represented by legal counsel (or have
been afforded the opportunity to do so and have declined). Accordingly, this Agreement
shall not be construed more strictly against any one of the parties hereto. The paragraph
headings in this Agreement are for convenience only, shall in no way define or limit the
scope or content of this Agreement, and shall not be considered in any construction or
interpretation of this Agreement or any part hereof. With respect to words used in this
Agreement, the singular shall include the plural, the plural the singular and use of any
gender in this Agreement shall include all genders. Enforcement of the terms and
provisions of this Agreement shall be at the reasonable discretion of the aggrieved party,
and no waiver of any of the provisions of this Agreement shall be effective unless it is in
writing, signed by the party against whom it is asserted and any such waiver shall only
be applicable to the specific instance in which it relates and shall not be deemed to be a
continuing or future waiver. Grantor agrees to execute such further documents as may
be reasonably requested by Grantee to carry out the intent and purpose of this
Agreement. The invalidation of any one of the covenants or provisions of this
Agreement by judgment or court order shall in no way affect any other provisions hereof,
which shall remain in full force and effect to the maximum extent possible, consistent
with such invalidation.
[Signature Pages Follow]
Signed, witnessed, executed and acknowledged this 64; day of inqy , 2021.
Signed, sealed and delivered JJ
in the presence of:
Witnesses: 544 Lakeview Ct Land Trust
Atatio v,aarmr By: 'or
;-� ,•
Brian E. Raftery, Esq., tee and not
r personally or in his indiv d -I capacity
Prin ame:
L1AI Al �.da.,..
'A I : � '.
Print Name:
STATE OF NEW JERSEY )
) ss:
COUNTY OF UNION
The foregoing instrument was acknowledged before me this _AAday of
inA , 2021 by Brian E. Raftery, Esq., as Trustee, who is personally known to me or
[j(] whos produced a New Jersey Driver's License as identification
My Commission Expires: NEALAUMAN otary Public, State of New Jersey
Notary Public of New Jersey
ID#2165766
Commission Expires May 25,2024
Signed, witnessed, executed and acknowledged this 15 day of A.A1 , 2021.
Signed, sealed and delivered
in the presence of: City of Miami Beach, Florida
a Florida municipal corporation
Witnesses:
0I/ / 0,/,
f _ By: , 1
Ali . T. Hudak, City Manager
�y- ‘ 4..r
Print ''•7'°;"
,ice Attest: Ai
-3A-s01J 5.444,4 7 Let ,
Print Name: Rafael . Granado, Cerk "tii.B.E` ;,,,
LY .:
STATE OF FLORIDA ) � iACCRiORMED,i
) ss: --. sq, ,
COUNTY OF MIAMI-DADE ) ",,4ct 20
The foregoing instrument was acknowledged before me this A5— day of
c�v� 2021 by Alina T.Hudak and Rafael E. Granado, as City Manager and City
Clerk respectively, of the City of Miami Beach a Florida municipal corporation,
who are
personally known to me or who have produced 1G,eSD04► as i ntification.
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My Commission Expires: (///...1/F-626- Notary ublic, State of Florida
►1+� vrnweriiwa- w
.e"'*;.: ISABEL SATCHELL
* .,!, :.a MY COMMISSION#HH 072069
..:%A-iri EXPIRES:April 13,2025
• DFFLQ. Bonded nNotary public Vnderw.
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APPROVED AS TO
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Exhibit "A"
Legal Description
(Property)
Lots 1 and 2 of SURPRISE POINT, according to the plat thereof, as recorded in Plat Book 43,
Page 77, of the Public Records of Miami-Dade County, Florida.
Folio Number: 02-3223-012-0010
8
Exhibit "B"
Legal Description
(Submerged Lands)
9
1355 NW 97 AV SUITE 200 EXHIBIT"A"
MIAMI,FLORIDA 33172 Noptt 3uru'uurs Jnr.
TELEPHONE:(305)264-2660 C SURVEY No. 11-0001T05-19
FAX:(305)264-0229 SHEET Na 3 OF 3
SKETCH AND LEGAL DESCRIPTION
SE COR LAKE VIEW DRIVE S89°5624"E THIS DOCUMENT IS NEITHER
CHEROKEE 375.00' FULL NOR COMPLETE WITHOUT
75.00' NOTE: ALL SHEETS
�, r ,
1 BEARINGS ASSUMED
1 S89°56 24 E
J\E� 0 1 .
t6' okte4 co1
j R=120.00' GRAPHIC SCALE
P.O.C. - --, 25.00' L=127.63' t
NE CORNER Tan=70.60' FEET I
g 1 ,d=60°5620"
r CH=121.70' SCALE:1"=60'
n
h R=120.00'
^" A. \<y L=57.54'
`� \�t�c Tan=29.34'
QNVQ Qv I \.R`, d=27°28'27"
h42 \ CH=56.99'
N.
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QP ,cn r, R=120.00'
=O a 1 L=54.47'
N
y Tan=27.71'
, d=26°00'20"
1 CH=54.00'
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R=RADIUS Mf o 1
L=ARC LENGHT o �1
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Tan=TANGENT � y `
=CENTER ANGLE 1
CH=CHORD � �
Li LOT- 1 k LOT-2
C =CENTER LINE ^ \ 1`
P.B. =PLAT BOOK
PG.=PAGE 1
P.O.B.=POINT OF BEGINNING ^-•-"-..,. 11• \ P.O.B. 1
54'18"
...._- .14' 1 \\\tic
1
r R=191.90'
ti ,L=203.86'
EASEMENT AREA 1Tan=112.74'
,//b {'' oN:RRaJs'�.�,. _ ///,/ CH=1194.41' N18°57553'
,ErJi-.%ac„� . o NOVA ��i/ `
cn=GEOR � s@�9 n_,,,, i /'/g, 1p
email=nOvawNe
BY: Date:202@9&LBf2490 'Oq'08"- /I�///I � ` "�'
GEORGE IBARRA. -..,�" y'4 s • - ., / /� .-
PROFESSIONAL LAND SURVEYOR No.2534 —111#464-4--- 11436'-'
LB#6044- 1'7Z 6' ".. L A K E (N.A.P.)
STATE OF FLORIDA(VALID COPIES OF THIS SURVEY WILL L=210.35'
BEAR THE EMBOSSED SEAL AND ORIGINAL SIGNATURE Tan=120.11'
OF THE ATTESTING LAND SURVEYOR). d=69°0771
NOTE:NOT VALID WITHOUT THE SIGNATURE AND ORIGINAL CH=197.83' PROPERTY ADDRESS:
SEAL OFA FLORIDA REGISTERED SURVEYOR AN MAPPER CNB=S72°38'53"E 544 LAKEVIEW CT.
MIAMI BEACH,FL.33140
Exhibit "C"
Revocable Permit
10
RESOLUTION NO. 2020-31455
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, FOLLOWING A DULY NOTICED PUBLIC HEARING,
AS REQUIRED PURSUANT TO CITY CODE SECTION 82-93(B), FINDING
THAT THE CRITERIA SET FORTH IN SECTION 82-94 OF THE CITY CODE HAS
BEEN SATISFIED, AND APPROVING A REVOCABLE PERMIT REQUEST BY
544 LAKEVIEW COURT IRREVOCABLE TRUST (THE "APPLICANT") FOR
THE RESIDENTIAL PROPERTY LOCATED AT 544 LAKEVIEW COURT, MIAMI
BEACH (THE "PROPERTY") TO ALLOW FOR SEAWALL REPAIR AND
REINFORCEMENT WITH SUCH SEAWALL APPROXIMATELY THREE (3)
FEET WIDE AND APPROXIMATELY 209 FEET IN LENGTH,
AND CURRENTLY ENCROACHING FIVE (5) FEET NINE (9) INCHES (AT ITS
MAXIMUM DIMENSION) INTO CITY SUBMERGED LANDS; AND WITH THE
PROPOSED REPAIR OF THE SEAWALL FURTHER ENCROACHING INTO
CITY SUBMERGED LANDS TO A MAXIMUM DIMENSION OF NINE (9) FEET
TWO (2) INCHES, FOR A TOTAL OF 1,599 SQUARE FEET; FURTHER
AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE THE
REVOCABLE PERMIT.
WHEREAS, 544 Lakeview Court Irrevocable Trust (the Applicant) is requesting the
approval of a revocable permit for the residence located at 544 Lakeview Court ("the
Property"), to allow for a seawall repair and reinforcement; and
WHEREAS, the existing seawall is approximately three (3) feet wide and approximately
209 feet in length; and
WHEREAS, the existing seawall currently encroaches five (5)feet nine (9) inches (at its
maximum dimension) into City submerged lands; and
WHEREAS, the proposed repair of the existing seawall will further encroach on to City
submerged lands to a maximum dimension of nine (9) feet two (2) inches, for a total of 1,599
square feet; and
WHEREAS, the proposed seawall will be constructed to a height of 5.7 feet NAVD; and
WHEREAS, on October 17, 2018, the City Commission adopted Ordinance No. 2018-
4220 which allows for the construction of new seawalls to encroach on City submerged lands
and provides for a cost efficient manner for such construction; and
WHEREAS, the Applicant has demonstrated that the alternative to the proposed repair
and reinforce, which contemplates the issuance of a Revocable Permit, will cost an excess of
four times the amount of the repair/reinforcement contemplated and herein; and
WHEREAS, pursuant to Section 82-93(a) of the City Code, notices for the required
public hearing were mailed to owners of land lying within 375 feet of the existing permit area,
at least 15 days prior to the public hearing; and
WHEREAS, pursuant to Section 82-94 of the City Code, the City Commission shall
review the Revocable Permit request, and determine whether the request shall be granted
or denied, following the public hearing; and
WHEREAS, the Public Works Department has analyzed the criteria contained in Code
Section 82-94; a summary of the Public Works Department's review and recommendation to grant
the Revocable Permit request is set forth in the Commission Memorandum accompanying this
Resolution, which Memorandum is incorporated by reference herein.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission, following a
duly noticed public hearing, as required pursuant to City Code Section 82-93(b), finding that the
criteria set forth in Section 82-94 of the City Code has been satisfied, and approving a Revocable
Permit request by 544 Lakeview Court Irrevocable Trust (the "Applicant") for the residential
property located at 544 Lakeview Court, Miami Beach (the"Property")to allow for seawall repair
and reinforcement with such seawall approximately three (3) feet wide and approximately 209
feet in length, and currently encroaching five(5)feet nine(9) inches(at its maximum dimension)
into City submerged lands; and with the proposed repair of the seawall further encroaching into
City submerged lands to a maximum dimension of nine(9)feet two(2)inches, for a total of 1,599
square feet; further authorizing the Mayor and the City Clerk to execute the Revocable Permit.
PASSED and ADOPTED this /11 day of 0 c.i..o b!r , 2020.
1<:221----.--.
DAN GELBER, MAYOR
ATTEST:
clic,/as
RAF--'----41_ ANADO, CITY CLERK
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
k 1_ 06.; 1— b-6-Z6
City Attorney Date