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2018-30169 ResolutionRESOLUTION NO. 2018 -30169 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE NEIGHBORHOOD /COMMUNITY AFFAIRS COMMITTEE, APPROVING THE INSTALLATION OF LANDSCAPING BY THE MURANO AT PORTOFINO CONDOMINIUM ASSOCIATION, INC. ( "MURANO AT PORTOFINO"), ALONG THE PUBLIC BAYWALK ADJACENT TO THE MIAMI BEACH MARINA, PURSUANT TO THE AMENDED AND RESTATED GRANT OF BAYWALK EASEMENT DATED MAY 24, 1999 ( "BAYWALK EASEMENT "); FURTHER, APPROVING THE MODIFICATION OF THE GRANT OF EASEMENT FOR SSDI SOUTH DROP -OFF PARKING AND ACCESS EASEMENT AGREEMENT DATED MAY 24, 1999 ( "SSDI SOUTH EASEMENT "), AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AMENDMENT TO SAID SSDI SOUTH EASEMENT, TO PROVIDE FOR THE REVISED LEGAL DESCRIPTION FOR THE SSDI SOUTH EASEMENT AREA, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE ANY DOCUMENTS AS MAY BE NECESSARY TO ACCOMPLISH THE PURPOSES OUTLINED IN THIS RESOLUTION, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY. WHEREAS, pursuant to the Amended and Restated Grant of Baywalk Easement dated May 24, 1999 between Westside Partners, Ltd. ( "Grantor ") and the City of Miami Beach, Florida ( "Grantee" or "City ") ( "Baywalk Easement "), the City was granted a permanent, irrevocable, non- exclusive easement, for the use of the public, over and across the Easement Parcel more particularly described in Schedule A of the Baywalk Easement, portions of which are now owned by the Murano At Portofino Condominium Association, Inc. ( "Murano at Portofino "), as transferee of Grantor or its successors or assignees, subject to all terms and conditions set forth in the Baywalk Easement; and WHEREAS, pursuant to the Grant of Easement for SSDI Drop -off Parking and Access Easement Agreement dated May 24, 1999 between Westside Partners, Ltd. ( "Grantor ") and the City of Miami Beach, Florida ("Grantee" or "City ") ( "SSDI South Easement "), the City was granted a permanent, irrevocable, non - exclusive easement, for the use of the public, over and across the "South Easement Area" more particularly described in Exhibit B -2 of the SSDI South Easement, portions of which are now owned by the Murano At Portofino Condominium Association, Inc. ( "Murano at Portofino "), as transferee of Grantor or its successors or assignees, subject to all terms and conditions set forth in the SSDI South Easement; and WHEREAS, the permanent easement rights set forth in the Baywalk Easement and SSDI South Easement were granted to the City for purpose of, among other specified uses, providing the City, its lessees (Le., the Miami Beach Marina), and the public with a non- exclusive way of passage, access to, and reasonable use of, the easement areas, as a baywalk for pedestrian use; and WHEREAS, the Miami Beach Marina is obligated to maintain the baywalk and appurtenant landscape areas, in accordance with Article XIV of the Marina Lease dated June 24, 1983; and WHEREAS, Section 7 of the Baywalk Easement provides that the Grantor reserved, for itself and its successors and assigns, certain rights of use with respect to the Easement Parcel, including "the right to reconstruct, decorate, or otherwise enhance the appearance of any landscaping and site improvements located on the Easement Parcel at any time and from time to time, at Grantor's, its successors' and assigns', cost and expense, provided such construction, decorations and enhancements are reasonably acceptable to Grantee and otherwise consistent with the Operating Standards "; and WHEREAS, Section 5 of the SSDI South Easement provides that the Grantor reserved, for itself and its successors and assigns, certain rights of use with respect to the Easement Parcel, including "the right to reconstruct, decorate, or otherwise enhance the appearance of any landscaping and site improvements located on the South Easement Area at any time and from time to time, at Grantor's, its successors' and assigns', cost and expense, provided such construction, decorations and enhancements are reasonably acceptable to Grantee and otherwise consistent with. the Operating Standards, provided, however, that the foregoing rights reserved by the Grantor shall not unreasonably interfere with the continuous use of the South Easement Area as permitted herein by the Grantee or its successors or assignees and its invitees, agents, employees, guests, lessees, licensees, and contractors, and which will not otherwise frustrate the rights granted to said parties hereunder "; and WHEREAS, in January 2017, the Murano at Portofino commenced with the construction of landscaping, irrigation and related improvements over and across certain areas that are all located within the Baywalk Easement and SSDI South Easement aeas (collectively, the Easement Areas "), and which, among other enhancements, includes installation of a hedge and /or other plant material along certain grassy portions of the Easement Areas, between the grassy areas located within the Easement Areas, and the paved areas located within the Easement Areas ( "Landscaping Enhancements "); and WHEREAS, even though the City, acting in its regulatory capacity via the Planning Department, issued a permit for the installation of the landscaping, the Murano at Portofino had not obtained the City's consent to the Landscaping Enhancements, as required by the express terms of the Baywalk Easement and the SSDI South Easement; and WHEREAS, accordingly, the City, in its proprietary capacity as Grantee under the Baywalk Easement and the SSDI South Easement, notified Murano at Portofino on February 23, 2017 that, pursuant to Section 7(C)(ii) of the Baywalk Easement and Section 5 of the SSDI South Easement, the Administration did not accept the Landscaping Enhancements undertaken within the Easement Areas, as the Administration was concerned that the hedge /plant material creates a physical barrier between the grassy portions of the Easement Areas, and the paved portions of the Easement Areas, and thereby restrict, impede, or otherwise hinder and unreasonably interfere with the pedestrian use of the Easement Areas as contemplated by the Baywalk Easement and SSDI South Easement; and WHEREAS, subsequent to said notification, and additional correspondence, the Administration proposed alternatives to the Landscaping Enhancements, which included adding additional landscaping in certain areas and relocating landscaping in other areas; however, these alternatives were rejected by representatives of the Murano at Portofino in a meeting held on April 6, 2017; and WHEREAS, on January 19, 2018, the Murano at Portofino proposed: 1) to modify the footprint of the SSDI South Easement to match the as -built condition of the existing paved walkway (which would thereby place the Landscaping Enhancements outside the boundaries of the SSDI South Easement area); and 2) that the City consider a revocable or conditional approval of the Landscaping Enhancements along the Baywalk Easement Area, subject to and contingent upon the Murano at Portofino's agreement to: i) maintain the landscaping and the grassy area along the Baywalk Easement area; (ti) clean the foregoing areas and keep them free of waste and debris; and (iii) maintain the height of the Landscaping Enhancements at less than three feet; and WHEREAS, at the January 24, 2018 Neighborhood /Community Affairs Committee meeting, the NCAC recommended in favor of accepting the Murano at Portofino's proposal as it relates to both the SSDI South Easement and the Baywalk Easement; and WHEREAS, the Administration recommends that the Mayor and City Commission accept the recommendation of the Neighborhood /Community Affairs Committee, and accept the Murano at Portofino's request for the City's revocable approval of the Landscaping Enhancements along the Baywalk Easement, subject to and contingent upon the Murano at Portofino's agreement to: i) maintain the landscaping and the grassy area along the Baywalk Easement area; (ii) clean the foregoing areas and keep them free of waste and debris; and (iii) maintain the height of the Landscaping Enhancements at Tess than three feet; and WHEREAS, the Administration further recommends that the Mayor and City Commission accept the recommendation of the Neighborhood /Community Affairs Committee with respect to the Murano at Portofino's proposal to modify the footprint of the SSDI South Easement to match the as- built condition of the existing paved walkway, or in the alternative, that the Mayor and City Commission approve the Landscaping Enhancements along the SSDI South Easement in the same manner as provided for the Landscaping Enhancements along the Baywalk Easement, and authorize the Administration to revise the legal description for the SSDI South Easement area only if it is necessary for the City to do so. NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission, accept the recommendation of the Neighborhood /Community Affairs Committee, to approve the installation of landscaping by the Murano at Portofino Condominium Association, Inc. ( "Murano at Portofino "), along the public baywalk adjacent to the Miami Beach Marina, pursuant to the Amended and Restated Grant of Baywalk Easement dated May 24, 1999 ( "Baywalk Easement "); further, approve the modification of the Grant of Easement for SSDI South Drop -off Parking and Access Easement Agreement dated May 24, 1999 ( "SSDI South Easement "), and authorize the Mayor and City Clerk to execute an amendment to said SSDI South Easement, to provide for the revised legal description for the SSDI South Easement area, subject to review and form approval by the City Attorney; and further authorize the City Manager and City Clerk to execute any documents as may be necessary to accomplish the purposes outlined in this Resolution, subject to review and form approval by the City Attorney. PASSED and ADOPTED this day of February 2018. ATTEST: I" ssa 3 --' \ RAF ^ EL E. GRANADO, CI N GELBER, MAYOR �4�ICb T:\AGENDA \2018 \02 February \TCED\ u a a ofino\ rano at Pr.'i o RESO.docx • APPROVED AS TO FORM & LANGUAGE & FOR EXEC ► ON Zit ty Attu ey Data 8 AAIAM BEACH Resolutions C7 J COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: February 14, 2018 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE NEIGHBORHOOD /COMMUNITY AFFAIRS COMMITTEE, APPROVING THE INSTALLATION OF LANDSCAPING BY THE MURANO AT PORTOFINO CONDOMINIUM ASSOCIATION, INC. ( "MURANO AT PORTOFINO "), ALONG THE PUBLIC BAYWALK ADJACENT TO THE MIAMI BEACH MARINA, PURSUANT TO THE AMENDED AND RESTATED GRANT OF BAYWALK EASEMENT DATED MAY 24, 1999 ( "BAYWALK EASEMENT "); FURTHER, APPROVING THE MODIFICATION OF THE GRANT OF EASEMENT FOR SSDI SOUTH DROP -OFF PARKING AND ACCESS EASEMENT AGREEMENT DATED MAY 24, 1999 ( "SSDI SOUTH EASEMENT "), AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AMENDMENT TO SAID SSDI SOUTH EASEMENT, TO PROVIDE FOR THE REVISED LEGAL DESCRIPTION FOR THE SSDI SOUTH EASEMENT AREA, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE ANY DOCUMENTS AS MAY BE NECESSARY TO ACCOMPLISH THE PURPOSES OUTLINED IN THIS RESOLUTION, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY. RECOMMENDATION The Neighborhood /Community Affairs Committee recommends accepting the Murano at Portofino's request for the City's revocable approval of the Landscaping Enhancements along the Baywalk Easement subject to: 1) their obligation to maintain the landscaping and the grassy area at that location, 2) their obligation to clean the area and keep it free of waste and debris and 3) the height of the landscaping may not exceed three feet. The Administration further recommends that the Mayor and City Commission accept the recommendation of the Neighborhood /Community Affairs Committee accepting the Murano at Portofino's proposal to modify the footprint of the SSDI South Easement to match the as -built condition of the existing paved walkway. In the alternative, the Mayor and City Commission may consider simply approving the Landscaping Enhancements along the SSDI South Easement in the same way as the Landscaping Enhancements along the Baywaik Easement and providing the City's revocable approval of the Landscaping Enhancements along the SSDI South Easement subject to: 1) their obligation to maintain the landscaping and the grassy area at that location, 2) their obligation to clean the area and keep it free of waste and debris and 3) the height of the landscaping may not exceed three feet. Page 684 of 1270 HISTORY: The easements referenced more fully below in this Memorandum serve to provide public access along the Miami Beach Marina waterfront, and to and from Alton Road to the Baywalk, and arise from the original ownership by the City of all of the uplands and then a series of Settlement Agreements initially between the City and South Shore Developers, Inc. ( "SSDI ") in July 1985, and subsequent Development Agreements in 1986. Thereafter, the various successors to SSDI and the City have modified those original SSDI documents and agreements through subsequent Settlement Agreements and various agreements, but in all cases public access to the bay and to and from Alton Road have been required and maintained. Importantly, the Settlement Agreements and other agreements required SSDI and its successors to grant all of the easements over the property they were acquiring from the City. Pursuant to the Amended and Restated Grant of Baywalk Easement dated May 24, 1999 between Westside Partners, Ltd. ( "Grantor ") and the City of Miami Beach, Florida ( "Grantee" or "City ") ( "Baywalk Easement "), the City was granted a permanent, irrevocable, non - exclusive easement, for the use of the public, over and across the Easement Parcel more particularly described in Schedule A of the Baywalk Easement, portions of which are now owned by the Murano At Portofino Condominium Association, Inc. ( "Murano at Portofino "), as transferee of Grantor or its successors or assignees, as the case may be, subject to all terms and conditions set forth in the Baywalk Easement. Additionally, pursuant to the Grant of Easement for SSDI Drop -off Parking and Access Easement Agreement dated May 24, 1999 between Westside Partners, Ltd. ( "Grantor ") and the City of Miami Beach, Florida ( "Grantee" or "City ") ( "SSDI South Easement "), the City was granted a permanent, irrevocable, non - exclusive easement, for the use of the public, over and across the South Easement Area more particularly described in Exhibit B -2 of the SSDI South Easement, portions of which are now owned by the Murano At Portofino Condominium Association, Inc. ( "Murano at Portofino "), as transferee of Grantor or its successors or assignees, as the case may be, subject to all terms and conditions set forth in the SSDI South Easement. A survey of the Baywalk Easement and SSDI South Easement is attached hereto as Exhibit "A" (collectively, the "Easement Areas ") and as Exhibit "A -1" ( "Easement Areas Photo "). The permanent easement rights set forth in the Baywalk Easement and SSDI South Easement were granted to the City for purpose of, among other specified uses, providing the City, its lessees (i.e., the Miami Beach Marina), and the public with a non - exclusive way of passage, access to, and reasonable use of, the Easement Areas, as a baywalk for pedestrian use. The Miami Beach Marina is obligated to maintain the Easement Areas and appurtenant landscape areas, in accordance with Article XIV of the Marina Lease dated June 24, 1983. Section 7 of the Baywalk Easement provides that the Grantor reserved, for itself and its successors and assigns, certain rights of use with respect to the Easement Parcel, including "the right to reconstruct, decorate, or otherwise enhance the appearance of any landscaping and site improvements located on the Easement Parcel at any time and from time to time, at Grantor's, its successors' and assigns', cost and expense, provided such construction, decorations and enhancements are reasonably acceptable to Grantee and otherwise consistent with the Operating Standards." See Section 7(C)(ii), Baywalk Easement (emphasis supplied). Section 5 of the SSDI South Easement provides that the Grantor reserved, for itself and its successors and assigns, certain rights of use with respect to the Easement Parcel, including "the right to reconstruct, decorate, or otherwise enhance the appearance of any landscaping and site improvements located on the South Easement Area at any time and from time to time, at Grantor's, its Page 685 of 1270 successors' and assigns', cost and expense, provided such construction, decorations and enhancements are reasonably acceptable to Grantee and otherwise consistent with the Operating Standards, provided, however, that the foregoing rights reserved by the Grantor shall not unreasonably interfere with the continuous use of the South Easement Area as permitted herein by the Grantee or its successors or assignees and its invitees, agents, employees, guests, lessees, licensees, and contractors, and which will not otherwise frustrate the rights granted to said parties hereunder." See Section 5, SSDI South Easement (emphasis supplied). ANALYSIS In January 2017, the Murano at Portofino commenced with the construction of landscaping, irrigation and related improvements over and across certain areas that are all located within the Easement Areas, and which, among other enhancements, includes installation of a hedge and /or other plant material along certain grassy portions of the Easement Areas, between the grassy areas located within the Easement Areas, and the paved areas located within the Easement Areas, pictures of which are attached hereto as Exhibit "B" ( "Landscaping Enhancements "). However, even though the City, acting in its regulatory capacity via the Planning Department, issued a permit for the installation of the landscaping, at no time has the Murano at Portofino sought or obtained the City's consent or acceptance in or to the Landscaping Enhancements, as required by the express terms of the Baywalk Easement and the SSDI South Easement. Accordingly, the City, in its proprietary capacity as Grantee under the Baywalk Easement and the SSDI South Easement, notified Murano at Portofino on February 23, 2017 that, pursuant to Section 7(C)(ii) of the Baywalk Easement and Section 5 of the SSDI South Easement, the City does not accept, and does not consent to, the Landscaping Enhancements that Murano at Portofino had undertaken within the Easement Areas. As part thereof, the City specifically objected to the Murano at Portofino's installation of the hedge /plant material within the Easement Areas, as the hedge /plant material creates a physical barrier between the grassy portions of the Easement Areas, and the paved portions of the Easement Areas, and the Landscaping Enhancements thereby restrict, impede, or otherwise hinder and unreasonably interfere with the pedestrian use of the Easement Areas as contemplated by the Baywalk Easement and SSDI South Easement. Murano at Portofino asserts they installed the hedges to deter pet owners from allowing their dogs to defecate on the grassy areas. According to the Murano at Portofino, the number of pets on the Baywalk has increased substantially over the years and most pet owners do not pick up after their pets. The City believes this problem may be addressed with additional Code enforcement and requiring the Marina to perform regular cleaning of these grassy areas as required under their agreement. As the Aministration cannot accept the Landscaping Enhancements that serve to restrict the public's right of pedestrian use of the Easement Areas, including the grassy areas located therein, the Administration demanded that the Murano at Portofino remove all unauthorized landscaping that it, or its contractor, has installed within the Easement Areas, and restore the Easement Areas to the same condition as existed prior to the commencement of the unauthorized Landscaping Enhancements. To date, the Murano at Portofino has not complied with this demand. Subsequent to said notification, and additional correspondence, the Administration proposed alternatives to the Landscaping Enhancements, which included adding additional landscaping in certain areas and relocating landscaping in other areas. These alternatives were rejected by representatives of the Murano at Portofino in a meeting held on April 6, 2017. On July 19, 2017, the attorney for the Murano at Portofino provided its initial written response to the Page 686 of 1270 City, alleging that the Baywalk Easement and SSDI South Easement either do not extend to any of the present grassy area, or were somehow abandoned. The City has requested that the Murano at Portofino provide the documentation supporting its allegations, so that the City could evaluate and respond to these assertions, which not only implicate the landscaping that was installed without City's approval as noted above, but the rights of the public under the Baywalk Easement and SSDI South Easement. The City disagrees with the Murano at Portofino's conclusory response. The survey prepared by Schwebke- Shiskin & Associates, Inc. clearly shows that the Baywalk Easement is the westerly 25 feet of the platted lots, and covers the grassy area that the Murano altered without the City's permission. The survey also reflects that the hedges fall within, and cut off, public access to a substantial portion of the SSDI South Easement Area. On January 19, 2018, City staff met with the attorney for the Murano at Portofino and discussed their proposal to resolve this matter. Regarding the SSDI South Easement, they propose modifying the footprint of the easement to match the as -built condition of the existing paved walkway. This would result in each party gaining and losing a portion of area at this location. The City will verify the modification is for approximately the same overall square footage. Under this scenario, the Landscaping Enhancements at this location would then be located on area outside of the "new" easement and therefore would not be subject to the City's approval. Regarding the Baywalk Easement, the Murano at Portofino is requesting the City's revocable approval of the Landscaping Enhancements. Said revocable approval would be subject to: 1) their obligation to maintain the landscaping and the grassy area at that location, 2) their obligation to clean the area and keep it free of waste and debris and 3) the height of the landscaping may not exceed three feet. Neighborhood /Community Affairs Committee This matter was presented at the January 24, 2018 Neighborhood /Community Affairs Committee meeting. The NCAC recommended in favor of accepting the Murano at Portofino's proposal as it relates to both the SSDI South Easement and the Baywalk Easement. CONCLUSION The Neighborhood /Community Affairs Committee recommends accepting the Murano at Portofino's request for the City's revocable approval of the Landscaping Enhancements along the Baywalk Easement subject to: 1) their obligation to maintain the landscaping and the grassy area at that location, 2) their obligation to clean the area and keep it free of waste and debris and 3) the height of the landscaping may not exceed three feet. The Administration further recommends that the Mayor and City Commission accept the recommendation of the Neighborhood /CommunityAffairs Committee accepting the Murano at Portofino's proposal to modify the footprint of the SSDI South Easement to match the as -built condition of the existing paved walkway. In the alternative, the Mayor and City Commission may consider simply approving the Landscaping Enhancements along the SSDI South Easement in the same way as the Landscaping Enhancements along the Baywalk Easement and providing the City's revocable approval of the Landscaping Enhancements along the SSDI South Easement subject to: 1) their obligation to maintain the landscaping and the grassy area at that location, 2) their obligation to clean the area and keep it free of waste and debris and 3) the height of the landscaping may not exceed three feet. Legislative Tracking Tourism, Culture and Economic Development Page 687 of 1270 ATTACHMENTS: Description D ExhibitA - SunmyofEasementAnswn D Exhibit A-1 ' Easement Areas Photo D Exhibit - Landscaping Enhancements D Resolution Page 688 of 1270 ( r- 000/ -tr °N2 7d� 0 J eee88 Z pN�w �Ob'ifr&O 6'62) ,a ___ 9 107 30 ,601093 0 0189 1 30 80/1808 r") 00 m N O 0 0 J O O h (agzz•Od '£7.06r0.210) (b19b'Od '92991'8'21.0) 1N3013SV3 55300V ,06 Z V32/V 9 1 0 7 6 1 0 7 to ��p23td!"0 Q!! 111 c0 g °a➢i"Q"{3 m®q••��:< 88ose'= �da•me ai. i ©nu ©v.oa ° y+ fao-evoo $ {m.ao9fao ®9 ®.o ® ® ®alpo ©eaBaJ �.2.ae yy�3a 9qp�RYq9 ac av e- a dsa ass�W ill :11111m3 iiifiiii I; If O?ahc .19,;.B maa €=aE11I1I I 1 Page 690 of 1270 Page 691 of 1270 Page 692 of 1270