Easement Agreement with Massada Condominium Association, Inc. do - 29 -1 ({ 9
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
SPACE ABOVE THIS LINE FOR PROCESSING DATA
Easement Agreement
This Easement Agreement ("Agreement") is made this day of ppri , 2018,
by and between MASSADA CONDOMINIUM ASSOCIATION, INC., a Florida corporation,
whose address is 3901 Indian Creek Drive, Miami Beach, FL 33140 ("Grantor") 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
("Grantee') (Grantor or the Grantee or may be referred to herein individually as a "party" or
collectively as"parties").
WHEREAS, pursuant to Florida Statutes Section 718.111(10), Grantor has authority to
enter into this Agreement and to grant a perpetual, non-exclusive easement appurtenant to the
real property located in Miami-Dade County, legally described in Exhibit "A" attached hereto
(the "Property"): and
WHEREAS, the Property abuts Indian Creek (the "Waterbody") and includes the area
containing a seawall that is adjacent to the Waterbody (the "Seawall Area"); and
WHEREAS, Grantee is replacing seawalls and elevating roadways along the Waterbody
to benefit Grantor and other property owners abutting Indian Creek whose land is subject to
inundation during certain tidal events; and
WHEREAS, Grantee needs access to and use of the Property in connection with the
development of Public Related Uses (As defined in Section 3), which, at minimum, will include
the construction of a new seawall ("New Seawall"), as may be upgraded from time to time by
Grantee for the protection of the health, safety or welfare of the general public, and the
development of a greenway and/or other type of walkway for public access and use
(collectively, the "initial City Improvements"); and
WHEREAS, Grantor has agreed to grant a perpetual, non-exclusive access and use
easement to Grantee in, on, over, through and across the Property, including riparian rights and
public access; and
WHEREAS, Grantor requests that Grantee, and Grantee hereby agrees to, construct,
install and maintain the initial City Improvements, which will include the demolition of the
existing seawall; and
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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, non-exclusive access and use
easement in, on, over, through and across the Property, legally described in
Exhibit "A", in connection with the construction, installation, operation, repair.
replacement, upgrade and maintenance of City Improvements (as defined in
Section 4) and the operation of Public Related Uses (As defined in Section 3),
subject to the terms and conditions set forth herein. The easement rights include
rights to the upland interest over the shoreline into the Waterbody, together with
all other riparian rights, as may be required under applicable Laws and any
governmental authority (including the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida) having jurisdiction over the
Property or the sovereign lands located adjacent thereto, to construct, install,
repair, replace, upgrade or maintain the New Seawall or any future seawall
developments. Additionally, the easement rights shall permit Grantee, its
employees, agents and contractors and representatives and licensees to survey,
mobilize, excavate, demolish, construct, inspect, store materials and equipment.
install utilities, and take all other actions on the Property necessary to develop
City Improvements or operate Public Related Uses.
b. Public Access Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, its successors and assigns, for use by members of the general public, a
perpetual, non-exclusive access and use easement in, on, over, through and
across the Property, in connection with the general public's use of the City
Improvements or Public Related Uses developed on the Property.
3. Public Related Uses. As referred to herein, Public Related Uses shall include, without
limitation, a seawall/retaining wall, flood mitigation elements, a greenway, public
transportation stops, kiosks, bicycle paths, walkways and decks, parks, playgrounds,
lighting, utilities or any other improvements and activities associated with the use of the
Property by the general public or which, in Grantee's reasonable discretion, are deemed
necessary for the protection of the health, safety or welfare of the general public.
4. City Improvements. Grantee will have the right to construct, install, operate, repair,
replace, upgrade and maintain, at its sole cost and expense, improvements in
connection with any Public Related Uses (the "City Improvements").
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5. Grantee Obligations. Grantee will cause plans and specifications to be prepared for any
construction work related to the installation of any City Improvements (collectively the
Work") and obtain any and all governmental permits and approvals required in
connection with the Work (the "Permits"). Grantor will approve said plans and
specifications (the "Approved Plans"). Grantor shall not withhold, condition or delay the
approval of the plans and specifications relating to the Work. Upon completion of the
Work, Grantee will accept ownership of the City Improvements, and will assume the sole
responsibility to maintain the City Improvements in a good and safe condition and to
repair and/or replace same as necessary from time to time, all in accordance with the
Permits and any and all federal, state and local laws, rules, ordinances, and regulations
(collectively, the "Laws") applicable thereto. Notwithstanding the foregoing, should
Grantor develop a dock contiguous to the Seawall Area, Grantor will thereafter assume
the sole responsibility to maintain the New Seawall in a good and safe condition and to
repair and/or replace same as necessary from time to time, all in accordance with the
Permits and any and all Laws applicable thereto.
6. Except with respect to Grantor's Improvements (as defined in Section 8). Grantee shall
be responsible for maintaining the Property in a good and safe condition. Grantee's
responsibility with respect to the installation of any City Improvements shall include the
construction and installation of such City Improvements in accordance with the Approved
Plans and Permits and, upon completion of the City Improvements, the repair,
replacement and maintenance of the constructed City Improvements; it being
understood and agreed that (i) Grantee makes no warranty regarding the City
Improvements, and (ii) Grantor disclaims any and all implied warranties of
merchantability and fitness, fitness for a particular purpose, intended use, workmanship
or construction respecting the City Improvements, imposed by statute, case law or
otherwise.
7. Grantor Obligations. At all times, Grantor will cooperate and provide support to Grantee
in connection with the Work, including, without limitation, by executing, or causing to be
executed, within five (5) business days of a request from Grantee, any application or
other documentation (in recordable form if necessary) necessary to connection
therewith. In furtherance thereof, Grantor hereby grants the Grantee a power of attorney
to execute and submit all such applications and documentation required by any
governmental authority (including the Board of Trustees of the Internal Improvement
Fund of the State of Florida) having jurisdiction over the Property or the sovereign lands,
which may be necessary to obtain the Permits and perform the Work in accordance with
the Approved Plans.
8. Grantor's Improvements. Grantor shall have the right to construct, install, operate,
repair, replace, upgrade and maintain, at its sole cost and expense, a dock, to be
developed contiguous to the Seawall Area ("Grantor's Improvements"). Grantor will not
make any improvements to the Property, except for the dock Improvements described
herein.
9. Access. Grantor shall not withhold or obstruct Grantee's access to the Property, City
Improvements or Public Related Uses through the installation of a fence or any other
means.
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10. 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.
11. Inspection. It is understood and agreed that any City official has the right to enter and
investigate the Property, to verify compliance with the conditions of this Agreement or
any applicable Laws.
12. Indemnification. Grantor, and its successors and assigns, expressly agrees to save,
defend, indemnify and hold harmless Grantee, its employees, agents and contractors
(collectively, "Grantee Indemnified Parties"), from and against any and all loss, liability,
damages, claims, costs, attorneys' fees and expenses (collectively, "Losses"), arising
out of or relating to Grantor's negligent or wrongful act or omission.
In consideration of this Agreement, Grantee, its successors and assigns, to the extent
allowable by law, and subject to the limitation on Grantee's liability, as set forth in
Section 768.28, Florida Statutes, expressly agrees to save, defend, indemnify and hold
harmless Grantor, its employees, agents and contractors (collectively, "Grantor
Indemnified Parties"), from and against any and all loss, liability, damages, claims, costs,
attorneys' fees and expenses (collectively "Losses"), arising out of or relating to the
Grantee's negligent or wrongful act or omission. Additionally, nothing contained in this
Agreement shall be deemed a waiver of sovereign immunity by the Grantee.
13. 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: Massada Condominium Association, Inc.
3901 Indian Creek Drive
Miami Beach, FL 33140
With a copy to:
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.
14. 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
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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.
15. 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.
16. 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.
17. Grantor Representations. Grantor covenants, warrants and represents (i) that Grantor
has the authority to grant the perpetual easements granted herein, and (ii) there are no
lienholders on the Property.
18. 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.
19. 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. The 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]
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Signed, witnessed, executed and acknowledged this Y day of N B 11,L , 2018.
Signed, sealed and delivered
in the presence of: MASSADA CONDOMINIUM ASSOCIATION.
INC., a Florida corporation
Witnesses:
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Title: Vt3F,S LDE,(T
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STATE OF FLORIDA
ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this Ix day of
IhdyliL 2018, 1-,ta\ ucu,1,ii it as , on berhalf
of MASSADA CONDOMINIUM ASSOCIATION, INC, a Florida corporation, who is personally
known to me or who has produced as identification.
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Signed. witnessed, executed and acknowledged this 21 day of Rf,i ,` , 2018.
Signed. sealed and delivered
in the presence of: City of Mimi Beach,
a Florida .unicipal Corp. -tion
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Print Name: Rafael E. ado, Clerk .2q' ..t.-'�o,�.;,7
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STATE OF FLORIDA )
ss:
COUNTY OF MIAMI-DADE )
T foregoing instrument was acknowledged before me this _ day of
2018 by Jimmy L. Morales and Rafael E. Granado, as City Manager and City
Cle , respectively, of the City of Miami Beach, a Florida municipal corporation, who are
personally known to me or who have produced as identification.
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My Commission Expires: to Publr State of Florida
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APPROVED AS TO
FORM & LANGUAGE
Easement-updated10-11-2017 & F E ECUTION
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Cily Attorney 4 Date
Exhibit "A"
Legal Description
The parcel of land lying West of Indian Creek Drive, and between the North line of said Lot 24,
Block 32, produced Westerly to the waters of Indian Creek, and the South line of said Lot 20,
Block 32, produced Westerly to the waters of Indian Creek, of Amended Plat of Miami Beach
Improvement Co., according to the Plat thereof, as recorded in Plat Book 5, Pages 7 and 8, of
the Public Records of Miami-Dade County, Florida.
A portion of Folio No.: 02-3226-032-0001
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