08-03-04 Item 6CITY OF SOUTH MIAMI
Inter - office Memorandum
TO: Honorable Mayor, Vice Mayor DATE: August 3, 2004
& City Commission
0
FROM: Maria V. Davis AGENDA ITEM No.6
City Manager RE: Authorizing the City Manager to
execute Right -of -way Maintenance agreement
with 6141 Sunset Development, LLC
RESOLUTION:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, AUTHORIZING THE CITY MANAGER TO ENTER INTO
AN AGREEMENT WITH 6141 SUNSET DEVELOPMENT, LLC FOR DISCHARGING
ONSITE DRAINAGE (STORMWATER) INTO OFFSITE DRAINAGE FACILITIES TO
BE CONSTRUCTED AND MAINTAINED BY 6141 SUNSET DEVELOPMENT, LLC IN
PERPETUITY; PROVIDING FOR AN EFFECTIVE DATE
BACKGROUND & ANALYSIS:
A new development (Medical Building) is proposed along SW 61St Court between SW 70t" Street and SW
72nd Street. Due to the magnitude of the proposed structure, the County's Department of Environmental
Resource Management did not allow an on -site drainage system on the property. The only alternative for
the developer (6141 Sunset Development, LLC.) is to drain off -site along SW 61St Court from SW 70"'
Street to SW 72nd Street. Staff has worked with the developer to allow the property to drain along the
rights -of -way by upgrading the existing drainage system and for the developer to maintain the proposed
system in perpetuity.
In addition to the right -of -way drainage system upgrade, 6141 Sunset Development, LLC will be
upgrading utilities within the right -of -way abutting their property including, but not limited to, a potable
drinking water system. 6141 Sunset Development, LLC will also provide improvements along the rights -
of -way, to include new sidewalk, landscaping, roadway resurfacing and pavement marking.
RECOMMENDATION:
It is recommended that the City Commission approve the resolution.
ATTACHMENTS:
U Proposed Resolution
0 Copy of Agreement with 6141 Sunset Development, LLC
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RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, AUTHORIZING THE CITY MANAGER TO ENTER
INTO AN AGREEMENT WITH 6141 SUNSET DEVELOPMENT, LLC FOR
DISCHARGING ONSITE DRAINAGE (STORMWATER) INTO OFFSITE
DRAINAGE FACILITIES TO BE CONSTRUCTED AND MAINTAINED IN
PERPETUITY BY 6141 SUNSET DEVELOPMENT, LLC; PROVIDING FOR AN
EFFECTIVE DATE
WHEREAS, the Mayor and City commission wishes to encourage development, infrastructure
improvements and utilities maintenance within the City of South Miami; and,
WHEREAS, the owner of 6141 Sunset Development, LLC is requesting to construct off -site
drainage facilities on the City's right -of -way abutting the property and to maintain the facility; and,
WHEREAS, the address of the property is 7100 block of SW 61s' Court, South Miami, Florida
33143; and,
WHEREAS, the right -of -way is located on SW 61St Court from SW 70'x' Street to SW 72 °d Street,
all pursuant to the plans and specifications.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISION OF
THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1: That the Mayor and City Commission authorize the City Manager to execute the
Right -of -way Maintenance Agreement.
Section 2: The maintenance agreement must be recorded and the recording fee shall be paid by
6141 Sunset Development, LLC
Section 3: The attached Right -of -way Maintenance Agreement is made part of the resolution.
PASSED AND ADOPTED this
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
day of 12004.
APPROVED:
MAYOR
Commission Vote:
Mayor Russell:
Vice Mayor Palmer:
Commissioner Wiscombe:
Commissioner Birts- Cooper:
Commissioner Sherar:
RIGHT OF WAY MAINTENANCE AGREEMENT
BETWEEN CITY OF SOUTH MIAMI AND
6141 SUNSET DEVELOPMENT, LLC
Whereas, Owner /Contractor has requested, and the City has agreed, subject to the terms
and conditions in this Agreement, to grant Owner /Contractor the right to construct off -site drainage
facilities on the City's right -of -way abutting the property as described below; and,
Whereas, the address of the property is located at 6141 S.W. 72nd Ave, South Miami,
Florida 33143; and,
Whereas, within the right -of -way of SW 61st Court from the north right -of -way of SW
72 Street "Sunset Drive" to south right -of -way line of SW 70th Street, all pursuant to the plans
and specifications; and,
Whereas, the drainage improvements ( "drainage improvements ") consist of three drains and
drain fields into which drainage from the property shall flow; and,
Whereas, the drainage plans and specifications for the property prepared by Pistorino &
Alam, Inc., have been approved by the City and Owner /Contractor ( "plans and specifications ").
Now, therefore, this Agreement is entered into this day of July, 2004, by and
between the City of South Miami, Florida, a Florida municipal corporation, and 6141 Sunset
Development, LLC, a Florida limited liability corporation, for itself and for its successors, assigns
and heirs (Or), in and for the consideration often dollars ($10.00) and the mutual covenants
contained in this Agreement, the receipt and legal sufficiency of which is acknowledged by both
parties.
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 as:
Lots 8 through 15, block 2 less the South 21 feet for right -of -way
dedication of SW 72 Street, Larkin Center according to the plat
thereof, as recorded in Plat Book 27, at Page 67, and lot 5, block 2,
rosewood according to the Plat thereof, as Recorded in Plat Book
13, Page 62.
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SUBJECT TO:
All rights, reservations, restrictions, limitations and easements of
record and all zoning ordinances, restrictions, prohibitions and
other requirements imposed by governmental authorities, without
reimposing the same.
2.2 The right -of -way upon which the drainage improvements are to be
constructed and maintained by 6141 Sunset Development, LLC is legally described as follows:
Whereas, within the right -of -way of SW 61 st Court from the north
right-of-way of SW 72 Street "Sunset Drive" to south right -of -way
line of SW 70th Street, all pursuant to the plans and specifications.
3. DRAINAGE IMPROVEMENTS
3.1 Owner /Contractor shall construct the drainage improvements on the above -
described right -of -way in accordance with the plans and specifications which were prepared by
Pistorino & Alam Consulting Engineers, Inc. dated July _l5_, 2004, and which were approved by
the City on July 2004, and as they may be amended and approved by the City and
Owner /Contractor from time to time.
3.2 Owner /Contractor 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.
3.3 Owner /Contractor 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 /Contractor 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 9w
Owner /Contractor 30 -days written notice of any necessary repairs, and Ors
Owner's /Contractor's failure to perform the repair within an additional 30 -day period. The cost of
repair shall be charged -to and shall be reimbursed by the Owner /Contractor within 30 days of
receipt of the invoice from the City.
3.4 Owner /Contractor shall have the right to enter the right -of -way for the
purpose of constructing and maintaining the drainage improvements. Owner /Contractor 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, and placement of telecommunication cables and equipment. The City, or its agents and
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licensees, and independent contractors, shall disturb the drainage improvements as little as
possible to accomplish the municipal purpose, and shall make any and all repairs resulting
therefrom.
CORRECTION OF UNSAFE CONDITION
5.1 The drainage improvements shall be maintained in a safe condition at all
times by Owner /Contractor. 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 failure to maintain
or to restore the improvements, the City has the right, after giving the Owner /Contractor 30 -days
written notice, to cure, repair, correct or modify the drainage improvements and the affected
right -of -way at the Owner's /Contractor's expense.
0 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 /Contractor as soon as is practicable.
6. INDEMNIFICATION AND HOLD HARMLESS
6.1 Owner /Contractor 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 allegedly
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 /Contractor shall upgrade all storm water systems to 61 Court only
to current code requirements for both storm water quantity and quality to the extent required
pursuant to applicable City of South Miami and Miami -Dade County Codes and pursuant to the
approved plans and specifications.
7.2 Sizing of the system shall be for both the on -site needs and
the needs of the public right -of -way for the entire extent and width
of the right -of -way described above, which shall also include SW
61 st Court from the north right -of -way of SW 72 Street "Sunset
Drive" to south right -of -way line of SW 70th Street, all pursuant to
the plans and specifications.
7.3 Owner /Contractor shall upgrade other utilities within the right -of -way in
accordance with the approved plans and specifications, as amended, including, but not limited to,
potable water distribution systems, storm sewer system (drainage) and sanitary sewer systems.
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7.4 Owner /Contractor shall upgrade the right -of -way pursuant to the approved
plans and specifications, including streetscapes, wider sidewalks, landscaping, applicable texture
pavements, and street lighting.
STORM WATER USER FEES
8.1 Owner shall be responsible for payment of Stormwater User Fees to the
extent, if any, required by the City of South Miami for the property [which shall be determined
by including the sum of the on -site and the off -site impervious square footage of the property
areas described above in paragraph 7.2.]. Charges for this fee shall commence immediately after
foundation and /or impervious area has been constructed.
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 after receipt of written 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, and shall
take precedence of mortgages on the property. 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.
10.2 This Agreement shall be recorded and the property shall be encumbered
by this Agreement.
!10161111410
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.
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12. CONTRACTING OFFICER REPRESENTATIVE
follows:
12.1 For the purposes of this Agreement, the contracting representatives are as
For the City of South Miami
Name: Ajibola Balogun
Title: Public Works Director
6130 Sunset Drive
South Miami, Florida 33143
Telephone: (305) 668 -7206
Facsimile: (305) 668 -7356
13 JURISDICTION AND VENUE
For 6141 Sunset Development, LLC
Name: Marcelo Fernandes
Title: Manager 6141 Sunset Development,
LLC.
7500 Red Road
South Miami, Florida 33143
Telephone: (305) 663 -1293
Facsimile: (305) 665 -0272
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 /Contractor will maintain throughout the period of this Agreement
Comprehensive General Liability insurance, All Risk 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 /Contractor's employees. During construction,
Owner will maintain Builder's Risk Insurance and Worker's Compensation Insurance. The
policies shall have minimum limits no less than $1,000,000.00, and name the City as an
additional insured.
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.
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[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, this Agreement is accepted and delivered on the date stated
above by the following signatories.
CITY OF SOUTH MIAMI
By:
Maria Davis, City Manager
ATTEST:
Maria M. Menendez, City Clerk
APPROVED AS TO FORM AND
CONTENT:
By:
Earl G. Gallop, City Attorney
6141 Sunset Development, LLC
Property Owner
By:
[Print Name: ]
As:
[Print Corporate Title]
ATTEST:
By:
[Print Name:
As:
[Print Corporate Title]
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STATE OF FLORIDA )
ss:
COUNTY OF MIAMI -DADE)
ACKNOWLEDGEMENT OF PROPERTY OWNER
The foregoing instrument was acknowledged before me this day of ,
2004 by of as
on behalf of the Property Owner, who is personally known to me or has
produced as identification.
Notary Public, State of Florida
Print name:
Commission No:
STATE OF FLORIDA )
) ss:
COUNTY OF MIAMI -DADE)
ACKNOWLEDGEMENT OF CITY OF SOUTH MIAMI
The foregoing instrument was acknowledged before me this day of ,
2004 by MARIA DAVIS, City Manager, and MARIA MENENDEZ, City Clerk, of the City of
South Miami, on behalf of the City, who are personally known to me.
Notary Public, State of Florida
Print name:
Commission No:
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