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HomeMy WebLinkAboutReso 2014-2217RESOLUTION NO. 2014 - ;) a A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, DECLARING NECESSITY TO INITIATE LEGAL PROCEEDINGS AGAINST PORTO BELLAGIO CONDOMINIUM ASSOCIATION, INC. ( "PORTO BELLAGIO") IN ORDER TO ENFORCE INGRESS /EGRESS EASEMENT AGREEMENT; REQUIRING A MEETING BETWEEN PORTO BELLAGIO AND CITY OFFICIALS WITHIN THIRTY (30) DAYS OF THE DATE OF APPROVAL OF THIS RESOLUTION; PROVIDING THE CITY ATTORNEY WITH THE AUTHORITY TO RETAIN OUTSIDE COUNSEL TO INITIATE LEGAL PROCEEDINGS AND DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Sunny Isles Beach (the "City ") and Porto Bellagio Condominium Association, Inc. ( "Porto Bellagio ") entered into an Ingress /Egress Easement Agreement on February 23, 2005 (the "Agreement"). a copy of which is attached hereto as Attachment "A" and incorporated herein by reference; and WHEREAS, the purpose of the Agreement is to provide the City with an easement over and across part of the common elements of Porto Bellagio for pedestrian and emergency vehicle ingress /egress to and from 172nd Street; and WHEREAS, Porto Bellagio has refused to agree to move a utility box that is currently located on the easement parcel, as more particularly shown in Attachment "B ", a copy of which is attached hereto and incorporated hereby by reference; and WHEREAS, the placement of the utility box on the easement parcel is a violation of the Agreement and prohibits the City from using the easement parcel for ingress /egress purposes; and WHEREAS, the City has attempted in good faith to resolve this issue with Porto Bellagio to no avail; and WHEREAS, the City's only recourse is to initiate formal legal proceedings against Porto Bellagio in order to enforce the terms and conditions of the Agreement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Recitals. The above recitals are true and correct and are incorporated herein by reference. Section 2. Require a Meeting, A meeting is required between Porto Bellagio and City Officials within thirty (30) days of the date of approval of this Resolution. Section 3. Declaration of Necessity to Initiate Legal Proceedings. The City Commission of the City of Sunny Isles Beach hereby declares the necessity for the City to initiate legal proceedings against Porto Bellagio Condominium Association, Inc. in order to enforce the Ingress /Egress Easement Agreement dated February 23, 2005, and allow the City to use the easement parcel for ingress /egress purposes. Section 4. Authority of the City Attorney. The City Attorney is authorized to retain outside counsel to initiate legal proceedings against Porto Bellagio Condominium Association, Inc. and to do all things necessary to effectuate this Resolution. Section 5. adoption. Effective Date This Resolution shall become effective immediately upon PASSED and ADOPTED this 20`" day of March, 2014. ATTEST: Jane A. H- ines, MMC, City Clerk APPROVED S TO FORM AND L A FICIENCY: H tti t, Ci Attorney VOTE: Mayor Edelcup Vice Mayor Aelion Commissioner Gatto Commissioner Levin Commissioner Scholl c Moved by: ,- Second by: 2 yes no yes V no yes Ll no yes no yes V no flii3 Dili 110i11 J. C, r_• J.:f i "i t 9 s E_; i i f f" - ; i• Prepared by and return to: R. Carlton Ward, Esq. (tl) Richards, Gilkey, Fite, et al. 1253 Park Street Clearwater, FL 33756 INGRESS /EGRESS EASEMENT This Declaration of Easement is made this 23rd day of February, 2005, by PORTO BELLAGIO CONDOMINIUM ASSOCIATION, INC., a Florida not - for -profit corporation, (hereinafter "Declarant "). WITNESSETH WHEREAS, for the purposes of this Declaration, the following terms shall have the following meanings: a) "Benefited Patty" shall mean and include the CITY OF SUNNY ISLES BEACH, FLORIDA, a municipal corporation, ( "City "). b) "Declarant" shall mean PORTO BELLAGIO CONDOMINIUM ASSOCIATION, INC., a Florida not - for - profit corporation C) "Easement Property" shall mean and include that real property that is part of the common elements of the Porto Bellagio Condominium, whose Declaration of Condominium is recorded in OR Book 22644, Page 643, Public Records of Miami -Dade County, Florida and is described in Exhibit "A" attached hereto and incorporated herein. - d) "Emergency Vehicles" shall be the vehicles of the governmental authorities and the appropriate private organizations supplying health, police services and emergency services, such as fire, ambulance and rescue services to the citizens c. Sunny Isles Beach, Florida. e) "Irrigation" shall be lines, pipes, pumps, wires, system or the service of installation for providing irrigation to the Easement Property. f) "Landscape Improvements" shall mean irrigation pipes, sprinklers, turf grass, ground cover, plants, shrubbery, mulch and trees. g) "Public Records" shall mean the public records of Miami -Dade County, Florida. h) "Roadway Improvements" shall be those portions of the Easement Property from time to time improved with compaction, paving, concrete, asphalt, guard - privacy railing and other like improvements utilized for vehicle and pedestrian travel. ATTACHMENT "A" i) "172 "d Street" shall be that certain public right -of -way, designated as 172 "d Street and reflected in the Plat recorded in Plat Book 157, Page 70, Public Records, which right of way adjoins the Easement Property and is depicted in Exhibit "A" attached hereto and incorporated herein. WHEREAS, the Declarant has agreed to provide the Benefited Party with an easement over and across the Easement Property, for pedestrian and Emergency Vehicle ingress and egress to and from 172 "d Street. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, Declarant, for itself, its successors and assigns, hereby declares, grants and agrees as follows: 1. Recitals. The foregoing recitals are hereby incorporated herein and made a part of this Declaration. 2. Declaration. Subject to the conditions and stipulations hereinafter set forth, Declarant does hereby declare, grant and agree that there shall be and there hereby does exist for the benefit of the Benefited Party a permanent non - exclusive easement in, over, under, through, and across the Easement Property, for ingress and egress, access; pedestrian and vehicular traffic for Emergency Vehicles to and from 172nd Street. Furthermore, the Benefited Party is authorized to improve the Easement Property, with Roadway Improvements, Landscaping and Irrigation. 3. Use. The Benefited Party may use and enjoy the rights and easements hereby declared, granted and created as follows: a) Any use by Benefited Party, citizens, contractors, licensees, employees, invitees or agents of the Benefited Party of the Easement Property shall be effected in such a manner so that it shall not unreasonably interfere with the rights of Declarant for access or maintenance purposes or any others having a right to use the Easement Property. b) To the extent permitted by Section 768.28, Florida Statutes: (i) Benefited Party shall indemnify and hold harmless Declarant from any claim, demand, loss, damage, cost or expense of whatsoever kind or nature, including attorney fees through appeal, made against or incurred by Declarant incident to any claim, demand, causes of action, defenses or proceedings, judgments or costs asserted against Declarant as a result of use of the Easement Property. 2 (ii) Declarant shall indemnify and hold harmless Benefited Party from any claim, demand, loss, damage, cost or expense of whatsoever kind or nature, including attorney fees through appeal, made against or incurred by Benefited Party incident to any claim, demand, causes of action, defenses or proceedings, judgments or costs asserted against Benefited Party as a result of use of the Easement Property. 4. Perpetual. The easements and rights hereby created, declared and granted with respect to the Easement Property shall be perpetual and shall run with title to the Easement Property and for the benefit of Benefited Party until amended or terminated in accordance with the terms of this Declaration. 5. Maintenance. Declarant shall at all times maintain the Easement in safe, clean, and attractive condition reasonably acceptable to the City Manager. Failure to do so will result in Declarant undertaking to do same and placing a lien against the Easement Property for the costs as documented by invoice. 6. Injunctive Relief. In the event of any violation or threatened violation by Declarant or a Benefited Party, the other party shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction of Miami -Dade County. The rights of injunction shall be in addition to all other remedies provided by law. 7. Attorney Fees. In the event any person is required to initiate or defend any legal action or proceedings to enforce or interpret this Declaration, the prevailing party in any such action or proceeding shall be entitled to recover reasonable costs and attorney fees (including its reasonable cost and attorney fees on any appeal). 8. Amendment. This Declaration may be amended only by an instrument in writing executed by the Declarant and the Benefited Party and recorded in the Public Records. 9. motions and Headings. The captions and headings in this Declaration are for reference only, and shall not be deemed to define or limit the scope or intent of any of the terms, covenants, conditions or other agreements contained herein 10. Effective Date. This Easement shall become effective upon recording. Declarant shall be responsible for the act of and costs associated with the recording of this Easement. IN WITNESS WHEREOF, the undersigned party has caused this Declaration of Easement to be duly executed and the corporate seal to be affixed the day and year first above written. 3 Signed in the presence of: By: Print Name: By: "O - , /./ lAy' ✓ v Print Name: /� A 4 d L4 P1 • / If -Is STATE OF FLORIDA COUNTY OF MIAMI -DADE PORTO BELLAGIO CONDOMINIUM ASSOCIATION, INC., a Florida not - for - profit corporation By: BARBARA WEISS BIANCO, PRESIDENT The foregoing instrument was acknowledged before me this -,�3day of Fez"m �� I 2005, by BARBARA WEISS BIANCO as President of PORTO BELLAGIO CONDOMINIUM ASSOCIATION, INC., a Florida not - for - profit corporation who is personally known to me or who has produced , as identification and who executed the foregoing Ingress /Egress Easement and she acknowledged before me that she executed the same for the purposes expressed and tha he said Ingress/Egress Easement is the act and deed of said association. Notary Public Print N R. CARLTON WARD My co �clvgti ea Feb.18, 2006 Calm • DD 073641 4 r EXHIBIT "A" LEGAL DESCRIPTION - ACCESS EASEMENT: A portion of Tracts "A" & "D ", of R.K. MARINA APARTMENTS, according to the plat thereof, recorded in Plat Book 157, Page 70, also being a portion of the common elements of Porto Bellagio, a condominium according to the Declaration of CONDOMINIUM recorded in Official Records Book 22644, beginning at Page 643, both being of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: BEGIN at the Southwest corner of Lot 19 of SOUTH SHORE ESTATES as recorded in Plat Book 52 at Page 69 of said Public Records of Miami -Dade County, Florida; thence N90 °00'00 "W along the exterior boundary line of said Tract "A" also being the Northerly right of way line of 172nd Street for 20.00 feet; thence N00 °00'00 "E along a line parallel with the Westerly line of said Lot 19 for 132.07 feet to a point on a circular curve, concave to the Southwest and whose radius point bears S63° 13'37 "W; thence Southeasterly along a 160.00 foot radius curve, leading to the right, through a central angle of 4 °41'26" for an are distance of 13.10 feet; thence N71 °35'52 "E along the South line of said Tract "D" for 15.37 feet to the Northwest corner of said Lot 19; thence S00 °00'00 "W along the West line of said Lot 19 for 125.00 feet to the POINT OF BEGINNING. AND: A portion of Tract "A ", of R.K. MARINA APARTMENTS, according to the plat thereof, recorded in Plat Book 157, Page 70 also being a portion of the common elements of Porto Bellagio, a condominium according to the Declaration of CONDOMINIUM recorded in Official Records Book 22644, beginning at Page 643, both being of the Public Records of Miami -Dade County, Florida, - being_ more - particular _l -y - described- as- fol_lo- described-as-follows BEGIN at the Most Northerly, Northeast corner of said Tract "A ", thence S90 °00'00 "W along the North line of Tract "A" for 221.19 feet; thence S00`00'00 "W for 5.43 feet to a point on a circular curve, concave to the Southwest and whose radius point bears SO4° 1.0'44 "W; thence Southeasterly along a 160.00 foot radius curve, leading to the right, through a central angle of 22 °03'24" for an arc distance of 61.59 feet; thence N84 °09'50 "E along the common line of Tract "A" & "D" of said R.K. MARINA APARTMENTS, for 34.30 feet; thence N81'59'43 "E along said common line for 129.26 feet to the Point of Beginning. m:\ realest\ tl\ portbellagiocityofsunnyislesbeach \ingress egress easement feb 22 2005 clean.doc JOINDER AND CONSENT The undersigned owner and holder of a promissory note secured by a MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT dated May 12, 2004, and recorded May 14, 2004, in O.R. Book 22301, commencing at Page 3531 of the Public Records of Miami -Dade County, Florida, given to Lehman Brothers Holding, Inc., a Delaware corporation, upon real property located in Miami - Dade County, Florida, being a portion of which is the same property as described in Exhibit "A" of this Ingress /Egress Easement to be recorded in the Public Records of Miami -Dade County, Florida, ( "Easement "), and to which this Joinder and Consent is attached and hereby joins in and consents to the making of the Easement, and agrees that the lien of its mortgage upon said real property described in Exhibit "A" of the Easement and improvements thereon shall be subject to the terms and conditions of this Easement and subordinate to the Easement. Dated and executed this 7�y of February, 2005, Witnesses: SUNAMERICA LIFE INSURANCE COMPANY an Arizona corporation By: AIG Global Investment Crop., a New Jersey Name: r STATE OF COUNTY OF Uoc , I`h��CI PS Corporation, its Investment Advisor By: MARLA S. CA�ViPAGNA Title: DIRECTOR I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was acknowledged before me by MARLA S. CAMPAGNA in the capacity of Director of AIG Global investment Corp, a New Jersey corporation, on behalf of SUNAMERICA LIFE INSURANCE COMPANY, as its Investment Advisor, freely and voluntarily under authority duly vested in him by said corporation i personally known'to me or has produced as identification. �- WITNESS my hand and official seal in the County and State last aforesaid this day 1,�_6tary Public, State of California at Large Typed, printed or stamped narne of Notary Public My Commission Expires: I 'a CATHERINE NUSLEIN Commission # 1392928 `z 0=.� Notary Public - California Z `, i • Los Angeles County My Comm. Expires Jan 10, 2007 --------------- 4 13 03 rr ro ;a —,: J' ATTACHMENT "B" r S\3 I S4 F F � Y n v x P tiF 9�r FLO�\O 5� C /TY OF SUN P`'o TO: FROM DATE: RE: City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947 -0606 City Hall (305)949 -3113 Fax (305) 947 -2150 Building Department (305) 947 -5107 Fax MEMORANDUM Honorable Mayor and City Commission Hans Ottinot, City Attorney March 20, 2014 City Commission Norman S. Edelcup, Mayor Isaac Aelion, Vice Mayor Jeanette Gatto, Commissioner Jennifer Levin, Commissioner George "Bud" Scholl, Commissioner Christopher J. Russo, City Manager Hans Ottinot, City Attorney Jane A. Hines, MMC, City Clerk Resolution declaring necessity to initiate legal proceedings against Porto Bellagio Condominium Association, Inc. RECOMMENDATION The proposed Resolution declaring necessity to initiate legal proceedings against Porto Bellagio Condominium Association, Inc. is presented for your consideration. REASONS The City of Sunny Isles Beach (the "City ") and Porto Bellagio Condominium Association, Inc. ( "Porto Bellagio ") entered into an Ingress/Egress Easement Agreement on February 23, 2005 (the "Agreement "). The purpose of the Agreement is to provide the City with an easement over and across part of the common elements of Porto Bellagio for pedestrian and emergency vehicle ingress /egress to and from 172nd Street. Porto Bellagio has refused to agree to move a utility box that is currently located on the easement parcel. The placement of the utility box on the easement parcel is a violation of the Agreement and prohibits the City from using the easement parcel for ingress /egress purposes. The City Manager and his staff have attempted in good faith to resolve this issue with Porto Bellagio to no avail. The City Manager has instructed my office to pursue this litigation. Thus, the City's only recourse is to initiate formal legal proceedings against Porto Bellagio in order to enforce the terms and conditions of the Agreement.