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6001 SW 70 ST_GREEN ROW AGRMT RESOLUTION NO. 67-03-11616 A RESOLUTION OF THE MAN OR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA,.RELATING TO CONTRACTS; APPROVING k RIGHT OF WAY AND MAINTENANCE AGREEMENT WITH SW 7e APARTMENTS, LLC; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Mayor and City 4 ommission of the City of South Miami approved development permits for a mixed-use development located at 6001 SW 70 Street;and, WHEREAS, the developer, SW 7014 Apartments, LLC, desires to use portions of the city's right-of way on SW 59th Place, SW 69th Street, SW 70th Street and SW 61"Avenue for drainage in provements;and, WHEREAS, the Mayor and City ommission approve the easement and maintenance agreement which is attached D this resolution.. NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUI H MIAMI,FLORIDA; Section 1. The right of way Bement and maintenance agreement between the City of South Miami and SW 70'h Apartments, LLC, which is attached to this resolution,is approved. T he city manager is authorized to execute and deliver this agreement. Section 2. This resolution shall t ike effect immediately upon approval and upon being recorded in the public records of Miami-Dade County.. PASSED AND ADOPTED this 66 day of May,2003. ATTEST: APPROVED: CITY CLERK MAYOR Additions shown by undorlining m1eletions shown by sver$tti)Eing. Res. No. 67-03-11616 COMMISSION VOTE: 4-0 READ AND APPROVED AS TO FORM Mayor Feliu: Yea © Vice Mayor Russell: out of room ���• •rte �f°,� Commissioner Wiscombe: Yea CITY ATTORNEY 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 S UTH MIAMI INTER-OFFIA MEMORANDUM To: Mayor and City Comm'n. Date:April 30,2003 Sandy A. Youkilis,Acting City Mauna er 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 706 Apartments,LLC. - - BACKGROUND AND ANALYSIS The city commission approved development permits for a mixed-use development located at 6001 SW 70`"Street. T he developer,SW 70 Apartments,LLC,desires to use portions of the city's right of way on SW 50 Place,SW�9"Street,SW 70'h Street and SW 6ls'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 in fintain 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 con ition;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 an agreement, which is expressed in the contract. RECOMMENDATION - Approve the resolution. RIGHT OF WAY EASEMENT A; MAINTENANCE AGREEMENT BETWEEN CITY OF SOUTH MIAMI AND SW 76 "APARTMENTS.LLC Whereas, Owner has requested, and i he 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 abutt ng the property as described below (the "Property");and, Whereas, the address of the Prope is located at 6001 SW 70th Street, South Miami,Florida 33143;and, Whereas, the right-of-way is located on SW 59th Place, SW 69'h Street, SW 701h 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 hall flow;and, Whereas, the drainage plans and specifications for the property prepared by Sun- Tech Engineering have been approved by the laity. 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 -orporation, for itself and for its successors, .assigns and heirs (Owner), in and for the consideration of ten dollars ($10.0'0)'and the mutual covenants contained in this Agreemei t,the receipt and legal sufficiency of which is acknowledged by both parties. I. WHEREAS CLAUSES 1.1. The above Whereas clan es are incorporated into this Agreement. 2. LEGAL DESCRIPTION OF Tilt PROPERTY AND RIGHT-OF-WAY 2.1 The property which is blund by this Agreement is legally described as: Lots l through 25,Block 15,Larkins Townsite Subdivision,City of South Miami,as recorde in Plat Book 2,at Page 105 of the Public Records of Dade County Florida. 2.2 The right-of-way upon 1hicb the drainage improvements are to be constructed and maintained by.SW 701h Apartments,LLC is legally described as follows: Page I of 7 SW 70`h Street between SW 59`h Place and SW 61St Avenue; SW 60 Street between SW 61 Avenue and SW 590' Place; SW 6151 Avenue between SW 69th Street and SW 70th Street; SW 591h Place between SW 69`h Street and SW 70"Street 3. DRAINAGE IMPROVEMEIN TS 3.1 Owner shall construe 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 amend-d, 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 s 3ecifying the standards for drainage system construction. 3.2 Owner shall maintain tic drainage improvements in good repair at all times,at its sole expense,and prevent the drz itiage improvements from becoming traffic and pedestrian hazards. The Owner shall be en 6ided to enter the right-of-way as necessary to perform necessary maintenance, subject to tandard permit requirements. The City shall have the right, but not the obligation,to rep it the drainage improvements upon giving the Owner 30-days written notice of any necess ry repairs,and Owner's failure to perform the repair within an additional 30-day period. flhe cost of the repairs shall be charged to and shall be reimbursed by the Owner within 30 nays of receipt of the invoice from the City. 3.3 Owner shall have the i'ght to enter the right-of-way for the purpose of constructing and maintaining the dranage improvements. Owner shall secure necessary permits from the City to perfomn the work and shall notify the Public Works Department of its work schedule and work plans. 4. RESERVATION OF RIGHT 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 S. 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 an i the affected right-of-way at the Owner's expense. 5.2 If the City determines t at 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 O ner 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 Dr 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 d age to the right-of-way, or personal injury that is caused in whole or in part by the co situction and maintenance, or the failure to maintain the drainage improvements. 7. UTILITY AND RIGHT OF WAY IMPROVEMENTS 7.1 Owner shall install addi ional inlets and pipe to route runoff from the right-of-way to existing inlets pursuant to they approved plans. 7.2 Owner shall upgrade th 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 pavement. 8. STORM WATER USER FEE - 8.1 Owner shall be responsi le 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 fooltage of the Property. 9. SPECIAL ASSESSMENT LIE 9.1 Any cost incurred by t e 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 u der.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 injuc+,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 Ci y within 30 days of issuing the invoice for costs and to thereafter enforce the lien by for closure 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 'ind 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 telecopie (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 For SW 701"Apartments, LLC Name: Sanford A.Youkilis,AICP ame:Marc S. Pollack Title: Acting City Manager Title: [][Authorized Agent 6130 Sunset Drive 5555 Glenridge Connector South Miami,Florida 33143 Suite 700 Telephone:(305)668-2510 Atlanta,GA 30342 Facsimile: (305)663-6345 Telephone: (404)459-6100 Facsimile: (404)459-624:8 Page 4 o 7 13 JURISDICTION AND VEND 13.1 For the purposes of this Agreement, Florida law shall govern the terms of this Agreement. Venue shall be in 1 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 t roughout the period of this Agreement Comprehensive General Liability insurance, 11 Risk insurance,Buiider's.Risk Insurance (to the date of approval of the facilities b) the city which shall not be unreasonably withheld), Workers' Compensation Insurance, Commercial Liability Insurance, and coverage for legal liability for loss or dam a a 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 City 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 improveme its.. 16. SIGNATORY AUTHORITY 16.1 The officials executing his 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 W 70"A0frtments,LLC roperty ner By: cs..1.�-Ga. y. Sanford A.You ' is ICP, [Print Acting City Manager Name: e f c [Print Corporate Title) ATTEST: TTEST: Page 5 f 7 By: A By: Ronetta Taylor,oTty Clerk {Print - - Name: As: [Print Corporate Title] APPROVED AS TO FORM AND CONT By: ar G aliop,City ttorney STA F FLORIDA ) ss: COUNTY OF MIAMI-DADE- ) ACKNOWLEDGEMENT OF PROPERTY OWNER The foregoing instrument was ackno ledged before ine this day of 2003 by �.� s f 11'w.4 - - of rti/ 7D r# 4p�nh Aix le , as , .n� , on behalf of the Property Owner,who is personally own to me r has,produced as identification. Q..80 Notary Public,State of-lemma Print name: C a ro I Q- co k v de04G Commission No: G vGp a - Page b of 7 STATE OF FLORIDA ) ss: COUNTY OF MIAMI-DADE ) ACKNOWLEDGEMENT O CITY OF SOUTH MIAMI The foregoing instrument was ackno ledged before me this day of C t�6 2003 by SANFORD A. YO LIS, AICP, Acting City Manager, and ROR TAYLOR, City Clerk,of the Ci of South Miami on behalf of the City,who are personally known to me. 6 N u lic.State of Florida Pr t e: C' — Commission No: ~� `aye Nkenga Payne .k���tdy Commission CCB633g8 ExQires August 16.2003 v Page 7 f 7