OLD BUSINESS  4.

COMMITTEE MEMORANDUM

HISTORY:

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.  Surveys of the the Baywalk Easement and SSDI South Easement are 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 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 City 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 City 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 the City's 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 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’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.

CONCLUSION:

The Administration seeks direction regarding the Landscaping Enhancements installed by the Murano at Portofino along the Easement Areas adjacent to the Miami Beach Marina.