Res. No. 067-03-11616RESOLUTION NO. 67-03-11616
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
CONTRACTS; APPROVING A RIGHT OF WAY AND
MAINTENANCE AGREEMENT WITH SW 70TH APARTMENTS,
LLC; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Mayor and City Commission of the City of South Miami
approved development permits for a mixed -use development located at 6001 SW
70th Street; and,
WHEREAS, the developer, SW 70th Apartments, LLC, desires to use
portions of the city's right of way on SW 59th Place, SW 691h Street, SW 70th
Street and SW 61St Avenue for drainage improvements; and,
WHEREAS, the Mayor and City Commission approve the easement and
maintenance agreement which is attached to this resolution..
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;
Section 1. The right of way easement and maintenance agreement
between the City of South Miami and SW 701h Apartments, LLC, which is
attached to this resolution, is approved. The city manager is authorized to execute
and deliver this agreement.
Section 2. This resolution shall take effect immediately upon approval
and upon being recorded in the public records of Miami -Dade County..
PASSED AND ADOPTED this 6th day of May, 2003.
.� /
CITY CLERK
APPROVED: , Q ,
�-
MAYOR 0
Additions shown by underlining and deletions shown by eveestriktng.
Res. No. 67 -03 -11616
CITY ATTORNEY
COMMISSION VOTE:
4 -0
Mayor Feliu:
Yea
Vice Mayor Russell: out
of room
Commissioner Wiscombe:
Yea
Commissioner Bethel:
Yea
Commissioner McCrea:
Yea
\ \02srvplaw \prolaw \Documents \0022\EGG \17798.doc - CSM Reso- contract -SW 79 Apt ROW
Page 2 of 2
CITY OF SOUTH MIAMI
INTER- OFFICE MEMORANDUM
To: Mayor and City Comm'n. Date: April 30, 2003
Sandy A. Youkilis, Acting City Manager
Ajibola Balogun, Public Works Director
From: Earl G. Gallop, City Attorney Re: Resolution approving ROW
easement and maintenance
agreement
REQUEST
The city attorney requests the commission to approve the resolution approving the right of
way easement and maintenance with SW 70`h Apartments, LLC.
BACKGROUND AND ANALYSIS
The city commission approved development permits for a mixed -use development located at
6001 SW 7Wh Street. T he developer, SW 70`h Apartments, LLC, desires to use portions of
the city's right of way on SW 50 Place, SW 691h Street, SW 70`h Street and SW 61s` Avenue
for drainage improvements. The city attorney prepared a right of way easement and
maintenance agreement to: (1) authorize the developer to use the rights of way for drainage
improvements; (2) require the developer to maintain the facilities in a safe condition and to
correct unsafe or dangerous conditions; (3) provide for indemnification of the city and
payment of the cost to correct any unsafe condition; and (4) provide for the imposition of a
special assessment lien in the event the facilities are not maintained by the owner and the city
expends funds to correct the condition.
Counsel for the developer and the city negotiated the particular language regarding the
special 'assessment lien and were able to reach an agreement, which is expressed in the
contract.
RECOMMENDATION
Approve the resolution.
RIGHT OF WAY EASEMENT AND MAINTENANCE AGREEMENT
BETWEEN CITY OF SOUTH MIAMI AND
SW 7V' APARTMENTS LLC
Whereas, Owner has requested, and the City has agreed, subject to the terms and
conditions in this Agreement, to grant Owner the right to construct off -site drainage
facilities on the City's right -of -way abutting the property as described below (the
"Property "); and,
Whereas, the address of the Property is located at 6001 SW 701h Street, South
Miami, Florida 33143; and,
Whereas, the right -of -way is located on SW 59`h Place, SW 691h Street, SW 70 "'
Street and SW 61" Avenue; and,
Whereas, the drainage improvements consist of four drains and drain fields into
which drainage from the public right -of -ways shall flow; and,
Whereas, the drainage plans and specifications for the property prepared by Sun -
Tech Engineering have been approved by the City.
Now, therefore, this Agreement is entered into this day of May, 2003, by and
between the City of South Miami, Florida, a Florida municipal corporation, and SW 70`'
Apartments, LLC a Florida limited liability corporation, for itself and for its successors.
assigns and heirs (Owner), in and for the consideration of ten dollars ($10.00) and the
mutual covenants contained in this Agreement, the receipt and legal sufficiency of which
is acknowledged by both parties.
as:
I. WHEREAS CLAUSES
1.1. The above Whereas clauses are incorporated into this Agreement.
2. LEGAL DESCRIPTION OF THE PROPERTY AND RIGHT -OF -WAY
2.1 The property which is bound by this Agreement is legally described
Lots I through 25, Block 15, Larkins Townsite Subdivision, City of
South Miami, as recorded in Plat Book 2, at Page 105 of the Public
Records of Dade County, Florida.
2.2 The right -of -way upon which the drainage improvements are to be
constructed and maintained by SW 70 °' Apartments, LLC is legally described as follows:
Page 1 of 7
SW 701h Street between SW 591h Place and SW 61" Avenue; SW 691h
Street between SW 61" Avenue and SW 591h Place; SW 61" Avenue
between SW 691h Street and SW 70`h Street; SW 591h Place between
SW 691h Street and SW 701h Street
3. DRAINAGE IMPROVEMENTS
3.1 Owner shall construct the drainage improvements on the above -
described right -of -way in accordance with the plans which were prepared Sun -Tech
Engineering, dated 2/28/02 as later amended, and which were approved by the City on
12/9/02, and as they may be amended by Owner and approved by the City from time to time
(collectively the "Approved Plans ").
3.2 Owner shall satisfy all state, county and City plan review, permitting
and construction standards, including, but not limited to, limiting the location where
drainage trenches can be installed and specifying the standards for drainage system
construction.
3.2 Owner shall maintain the drainage improvements in good repair at all
times, at its sole expense, and prevent the drainage improvements from becoming traffic and
pedestrian hazards. The Owner shall be entitled to enter the right -of -way as necessary to
perform necessary maintenance, subject to standard permit requirements. The City shall
have the right, but not the obligation, to repair the drainage improvements upon giving the
Owner 30 -days written notice of any necessary repairs, and Owner's failure to perform the
repair within an additional 30 -day period. The cost of the repairs shall be charged to and
shall be reimbursed by the Owner within 30 days of receipt of the invoice from the City.
3.3 Owner shall have the right to enter the right -of -way for the purpose
of constructing and maintaining the drainage improvements. Owner shall secure
necessary permits from the City to perform the work and shall notify the Public Works
Department of its work schedule and work plans.
4. RESERVATION OF RIGHTS
4.1 The City reserves the right to enter upon the right -of -way at any time
for any municipal purpose, including, but not limited to, clearing accidents, maintaining
the right -of -way, placement of telecommunication cables and equipment. The City, or its
agents and licensees, and independent contractors, shall disturb the drainage
improvements as little as possible to accomplish the municipal purpose; and the City
shall be responsible for repairing any damage to the drainage improvements caused by
the City, its agents, licensees and independent contractors.
Page 2 of 7
5. CORRECTION OF UNSAFE CONDITION
5.1 The drainage improvements shall be maintained in a safe condition
at all times by Owner. In the event the City determines that an unsafe or dangerous
condition exists in the right -of -way which is caused in whole or in part by the Owner's
failure to maintain or to restore the improvements as required under this agreement, the
City has the right, after giving the Owner 30 -days written notice, to cure, repair, correct
or modify the drainage improvements and the affected right-of-way at the Owner's
expense.
5.2 If the City determines that the unsafe or dangerous condition is of an
emergency nature, which threatens public safety or damage to property, it may take
immediate action to remedy the situation. The City shall give notice of the emergency
condition and the corrective action to the Owner as soon as is practicable.
6. INDEMNIFICATION AND HOLD HARMLESS
6.1 Owner shall indemnify, defend and hold the City harmless for any
claim, investigation, settlement, judgment or expense, including reasonable attorney's
fees and costs necessarily incurred, arising out of or relating to any claim for death or
bodily injury, property damage, including damage to the right -of -way, or personal injury
that is caused in whole or in part by the construction and maintenance, or the failure to
maintain the drainage improvements.
7. UTILITY AND RIGHT OF WAY IMPROVEMENTS
7.1 Owner shall install additional inlets and pipe to route runoff from the
right -of way to existing inlets pursuant to the approved plans.
7.2 Owner shall upgrade the right-of-way pursuant to the City's current
master plan, as depicted in the approved plans, including streetscapes, wider sidewalks,
landscaping and applicable texture pavements.
8. STORM WATER USER FEES
8.1 Owner shall be responsible for payment of Stormwater User Fees to
Miami -Dade County for the property which shall be determined based solely upon the
on -site and the off -site impervious square footage of the Property.
9. SPECIAL ASSESSMENT LIEN
9.1 Any cost incurred by the City to maintain or repair the drainage
system, either incident to an emergency action or upon the failure of the Owner to
maintain or repair the system as required under this agreement after receipt of written
Page 3 of 7
notice by the City, or to correct a dangerous or unsafe condition, or any cost incurred by
the City to defend or pay any claim, investigation, settlement, judgment or expense,
including reasonable attorney's fees and costs necessarily incurred, arising out of or
relating to any claim for death or bodily injury, property damage, including damage to the
right -of -way, or personal injury that is allegedly caused in whole or in part by the
construction and maintenance, or the failure to maintain the drainage improvements shall
constitute a lien against the property. The lien shall have the status and priority of a
special assessment lien. The City shall have the right and the power to record the lien if
the cost is not paid by the Owner to the City within 30 days of issuing the invoice for
costs and to thereafter enforce the lien by foreclosure and by any other lawful means.
10. PERPETUAL DURATION OF RIGHTS AND OBLIGATIONS
10.1 The rights, powers and obligations under this Agreement shall run
with the property into perpetuity and shall bind the successors, assigns and heirs of the
Owner and the City.
10.2 This Agreement shall be recorded and the property shall be
encumbered by this Agreement.
11. NOTICES
11.1 All notices given or required under this Agreement shall be deemed
sufficient if sent by certified mail, return receipt requested, to the addresses of the Owner
specified in this Agreement, unless the Owner shall specify in writing different address
for the giving of notices, and by telecopier (facsimile) transmission to the telecopier
number specified in this agreement.
12. CONTRACTING OFFICER REPRESENTATIVE
12.1 For the purposes of this Agreement, the contracting representatives are
as follows:
For the City of South Miami
Name: Sanford A. Youkilis, AICP
Title: Acting City Manager
6130 Sunset Drive
South Miami, Florida 33143
"Telephone: (305) 668 -2510
Facsimile: (305) 663 -6345
For SW 70 °i Apartments, LLC
Name: Marc S. Pollack
Title: [][Authorized Agent
5555 Glenridge Connector
Suite 700
Atlanta, GA 30342
Telephone: (404) 459 -6100
Facsimile: (404) 459 -6248
Page 4 of 7
13 JURISDICTION AND VENUE
13.1 For the purposes of this Agreement, Florida law shall govern the
terms of this Agreement. Venue shall be in Miami -Dade County, Florida.
14. NON - WAIVER OF SOVEREIGN IMMUNITY
14.1 The City does not waive sovereign immunity, and shall not be liable,
for the payment of attorney's fees or prejudgment interest.
15. INSURANCE
15.1 Owner will maintain throughout the period of this Agreement
Comprehensive General Liability insurance, All Risk insurance, Builder's Risk Insurance
(to the date of approval of the facilities by the city which shall not be unreasonably
withheld), Workers' Compensation Insurance, Commercial Liability Insurance, and
coverage for legal liability for loss or damage to drainage improvements and the City's
right-of-way arising from negligence of Owner's employees. The policies shall have
minimum limits no less than $1,000,000.00, and name the Citv as an additional insured;
provided, however, Owner's naming of the City as an additional insured shall apply only
to loss or damage to the drainage improvements..
16. SIGNATORY AUTHORITY
16.1 The officials executing this Agreement warrant and represent that
they are authorized by their respective agency to enter into a binding Agreement.
IN WITNESS WHEREOF, this Agreement is accepted and delivered on the date
stated above by the following signatories.
CITY OF SOUTH MIAMI
By.
— ��+'�i
Sanford A. You is ICP,
Acting City Manager
ATTEST:
SW 70`x' Apartments, LLC
Property O yr p
By:
Name: ,L c S. Pll <.el, ]
As:
[Print Corporate Title]
ATTEST:
Page 5 of 7
By: By:
Ronetta Taylor, Vty Clerk [Print
Name:
As:
[Print Corporate Title]
APPROVED AS TO FORM AND
I1
G Gallop, City
STA1 VOF FLORIDA )
) ss:
COUNTY OF MIAMI -DADE )
ACKNOWLEDGEMENT OF PROPERTY OWNER
The foregoing instrument was acknowledged before me this 2 day of
C' by /'7"�c S, '11'e/ of
SiJ 70 &rv�s LLC as i%.urze� /�sen� on behalf of the Property
Owner, who is personally known to me r has produced as
identification.
Notary Public, State of�a
Print name: C o rcv I Ce - ,� co k
Commission No:
Page 6 of 7
STATE OF FLORIDA )
) ss:
COUNTY OF MIAMI -DADE )
ACKNOWLEDGEMENT OF CITY OF SOUTH MIAMI
The foregoing instrument was acknowledged before me this day of
�Lik, , 2003 by SANFORD A. YOUKILIS, AICP, Acting City Manager, and
RONE TA TAYLOR, City Clerk, of the City of South Miami, on behalf of the City, who
are personally known to me.
N4A /Rublia. State of
20
., Nkenga Payne
.p }t J1` *My Commission CC863308
",,z Exoires August 16, 2003
Page 7 of 7