MOU with Sunset Islands III & IV Property Owners, Inc. a o� 2
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MEMORANDUM OF UNDERSTANDING
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
SUNSET ISLANDS III & IV PROPERTY OWNERS, INC.
This Memorandum of Understanding (MOU) is entered into this day of
2012, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation located
at 1700 Convention Center Drive, Miami Beach, Florida 33139 (City), and the SUNSET
ISLANDS III & IV PROPERTY OWNERS, INC., a non - profit Florida corporation, whose principal
address is Guard House, 2003 Sunset Drive, Miami Beach, Florida 33140 (HOA).
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RECITALS:
WHEREAS, in areas of the City, utility lines for services such as telephone, electricity,
end cable television exist overhead; and
WHEREAS, certain residential neighborhoods in the City_ have requested the relocation
of overhead utility lines underground; and
WHEREAS, the 'City recognizes its innate ability to assist with said initiatives and to
provide a collection mechanism, such as those used with special assessment districts created
pursuant to Chapter 170, Florida Statutes, at the request of individual neighborhoods; and
WHEREAS, pursuant to Resolution No. 2002- 24761, adopted on February 20, 2002, the
City Administration has been working with the Sunset Islands 3 and 4 Property Owners
Association (HOA) toward the creation of a special assessment district to fund the conversion of
overhead, utilities to underground on said Islands (the Project); and
WHEREAS, the HOA has been working with the Administration on its proposed
undergrounding district, and has reached the point where the initial Resolution establishing its
district will likely be presented to the City Commission sometime 'in late Summer or early Fall
2012; and
WHEREAS, at its regular meeting on February 8, 2012, the Mayor and City Commission
approved Resolution No. 2012- 27842, attached and incorporated as Exhibit "A" hereto (the
Resolution), approving and allowing the HOA to proceed with the "election" requirement
imposed by the City Commission, which requires that, as a condition precedent to its final
establishment of the proposed special assessment district, at least sixty percent (60 %) of the
benefitted property owners within such district vote in favor of its creation /establishment by the
City, and of the levy of a special assessment to fund the costs of the contemplated
undergrounding project; and
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WHEREAS, the Resolution also adopted guidelines and procedures for the aforestated
election, which will be a mail ballot election (the Election); and
WHEREAS, the HOA has been working with representatives of the City Attorney and
City Clerk's Offices, who are preparing the ballot question and instructions and, accordingly,, has
approved the attached sample ballot question and instructions, both of which are attached, in
substantial form,.as Exhibit "B" hereto; and
WHEREAS, in addition to re- affirming certain benchmarks and timelines pertaining to
the Election, the City and the HOA also wish to confirm, in this MOU, other terms agreed to
between the City and the HOA with respect to the creation and establishment of the proposed
Sunset Islands 3 & 4 Special Assessment District for Undergrounding Utilities (the District).
NOW THEREFORE, in consideration of the mutual promises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the City and HOA hereby agree as follows:
1. The above Recitals are hereby made a part of this MOU and expressly incorporated by
reference herein.
2. Election Timeframe and Additional Conditions.
a. As also set forth in the Resolution attached as Exhibit "A" hereto, the City and
HOA shall use their respective good faith, commercially reasonable efforts to
hold the election sometime in April 2012 (Election Date). For purposes of this
MOU, the term "hold the election" shall refer to the date that the Official Ballots
(as that term is defined in Attachment "A" of the Resolution) are mailed out by the
City, through its City Clerk's Office, to the benefitted property owners within the
District. Notwithstanding the preceding, the April 2012 Election Date is
contingent upon and subject to the City's prior timely receipt of the final binding
estimates from the utilities (FPL, AT &T, and Atlantic Broadband) and, based on
such costs, the calculation, by the City's Finance Department, of the amounts of
the individual assessments for each property owner (both if paid up front, in full,
or in installments over the agreed upon period of ten (10) years, if the property
owner elects to finance).
b. Costs. In order to minimize costs to the HOA, the Election will be prepared and
conducted by the City, "in- house," through its City Attorney and City Clerk's
Offices. The City will be responsible for the costs associated with printing and
copying the sufficient number of Official Ballots (currently estimated at 118) and
the three(3) envelopes accompanying each Ballot (as set forth in Section 4 of
Attachment "A" of the Resolution). The HOA will provide to the City, and be
responsible for any costs associated with: (i) the "Certified List" of benefitted
property owners within the District (containing the names and addresses of the
property owners to whom the City shall mail the Official Ballots to); (ii) the mailing
labels for each address on the Certified List; and (iii) the costs of all postage
associated with mailing out the Official Ballots to the benefitted property owners,
via First Class U.S. Mail.
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3. Funding.
a. The City agrees to fund the following District costs internal to the City; which
costs will not be included as part of the total Project cost for purposes of
calculating the special assessments: the FPL -CIP Liaison, the CIP Management
Fee, annual administration fees, and the internal costs of conducting the Election
(except, as to the latter, costs associated with preparing the Certified List, mailing
labels, and postage costs, all of which will be the responsibility of the HOA).
b. The HOA will be responsible for any and all District third party costs; which costs
will be included as part of the total Project costs for purposes of calculating the
special assessments. Any third party costs associated with obtaining the
financing (including, without limitation, costs for bank/lender's legal counsel, the
City's financial advisor and legal counsel, and other related borrowing costs); as
well as capitalized interest costs that will cover the loan from inception to the
beginning of payments from those property owners who elect to pay the
assessment by using the City's financing option to pay for their portion in
installments, will be shared equally among all of the property owners within the
proposed District, and will be included as part of the total Project costs for
purposes of calculating the special assessments.
4. Traffic Circle and Sidewalk. Following approval of this MOU and execution by the
parties hereto, the City's Capital Improvements Projects Office (CIP) will develop and
provide the HOA with a preliminary cost estimate for (i) a traffic circle, to be located as
one comes over the Sunset Island 4 bridge, from the mainland side onto Sunset Island
4; and (ii) the extension of the sidewalk connecting the Sunset Island 3 & 4 bridges
along Sunset Drive.
5. The City shall use good faith, reasonably commercial efforts to: (i) meet the CIP
timeframe for the Project, which is currently estimated for commencement of
construction in late 2012 or early 2013; (ii) expedite the preparation of the necessary
resolutions, notices, and other work product that the City needs to prepare for the City
Commission's consideration relative to creating and establishing the District (and
including, without limitation, presenting options for financing the Project costs); (iii)
expedite all City issued permits for the Project; and, provided the District is created and
established; (iv) diligently and continuously prosecute construction of the Project. Upon
completion of the Project, in the event that benefitted properties within the District have
not connected their individual residences to the Project (the "resident hook - ups "), the
City will reasonably assist the HOA with such lawful actions, as the City Commission
may deem necessary, to facilitate the completion of all resident. hook -ups within the
District.
Notwithstanding the preceding, or any other term or condition of this MOU, the City and
HOA hereby agree and acknowledge that the City shall have no liability whatsoever to
the HOA, or to third parties (including, without limitation, any benefitted property owners
in the District), for any claims, causes of action, costs, expenses, liabilities, or damages,
whether direct or indirect, arising out of or in connection with any act or failure to act, or
any error or omission, of the City, including without limitation, those arising from its
performance or non - performance of any good faith, reasonably commercial efforts
contemplated by the City under this Section 5, or elsewhere in this MOU; provided,
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however, that the City shall be obligated for those costs that the City has agreed to fund
pursuant to Section 2(b) and Section 3 of this MOU.
6. Notices.
All notices and communications in writing required or permitted hereunder may be
delivered personally to the representatives of the HOA and the City listed below or may
be mailed by registered mail, postage prepaid (or airmailed if addressed to an address
outside of the city of dispatch).
Until changed by notice in writing, all such notices and communications shall be
addressed as follows:
TO HOA: Sunset Islands III & IV Property Owners, Inc.
Attn: Terry Bienstock, President of HOA
Guard House, 2003 Sunset Drive
Miami Beach, Florida 33140
TO CITY: City of Miami Beach
Attn: Fred Beckmann
Public Works Director
1700 Convention Center Drive
Miami Beach, Florida 33139
(305) 673 -7000
Notices hereunder shall be effective:
If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the
day following the date mailed; and if mailed to an address outside the city of dispatch on
the seventh day following the date mailed.
7. This MOU shall be governed by, and construed in accordance with, the laws of the State
of Florida, both substantive and remedial, without regard to principles of conflict of laws.
The exclusive venue for any litigation arising out of this letter of understanding shall be
Miami -Dade County, Florida, if in State court, and the U.S. District Court, Southern
District of Florida, if in Federal court. BY ENTERING INTO THIS MOU, THE CITY AND
THE HOA EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A
TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF,
THIS MEMORANDUM OF UNDERSTANDING.
8. Neither party may assign this MOU. Neither this MOU, nor any of its terms, may be
changed, modified or otherwise amended except by an instrument in writing, signed by i
an authorized representative, which shall be the City Manager (on behalf of the City),
and the HOA President (on behalf of the HOA).
9. The City and HOA acknowledge and agree that they are not joint venturers, partners, or
joint owners with respect to this MOU, the District, or the Project. Nothing contained
herein shall be construed as creating a partnership, joint venture or similar relationship
between the City and the HOA.
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10. This MOU shall be effective following approval by the Mayor and City Commission and,
thereafter, upon the last date signed by the parties hereto (the Effective Date). Except
with respect to the parties' obligations as to their respective costs under Section 2(b)
hereof (i) in the event that, following the Election, the District is not approved by the
required sixty percent (60 %) of the benefitted property owners within such District or (ii)
in the event that the District is not otherwise created, established, or approved by the
Mayor and City Commission, then this MOU shall automatically terminate, without further
action required by the parties, and its terms shall have no further legal force or effect. .
Upon such termination, the City and the HOA shall have no further obligations and /or
liability to each other with respect to this MOU.
[SIGNATURES ON FOLLOWING PAGE]
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I HAVE READ THIS MOU AND, FULLY UNDERSTANIDNG SAME AND, FURTHER, BEING
THE LAWFULLY AUTHORIZED REPRESENTATIVE OF THE PARTY BELOW, DO HEREBY
EXECUTE SAME AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS
CONTAINED HEREIN.
CITY OF MIAMI BEACH, FLORIDA (CITY)
By
Na e: Matti Herrera Bower
Title:_ Mayor — i
Date: __
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ATTEST ,
SUNSET ISLANDS III & IV PROPERTY OWNERS, INC. (HOA)
By:
Name:? 1'
Title: r,u�..
Date: y/3 / !
APPROVED AS TO
FORM & LANGUAGE
'FOR EXECUTION
3�14_Iz
me,�(� �, Date
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Exhibit"A"
Resolution
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RESOLUTION NO. 2012-27842
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, TAKING THE FOLLOWING ACTIONS WITH
RESPECT TO THE ONGOING PROCESS FOR THE PROPOSED CREATION
OF THE SUNSET ISLAND NOS. 3 AND 4 SPECIAL ASSESSMENT DISTRICT
FOR UNDERGROUNDING UTILITIES: 1) APPROVING AND ALLOWING THE
SUNSET ISLANDS 3 AND 4 HOA TO CONDUCT THE ELECTION REQUIRED
BY THE CITY, PRIOR TO THE CITY COMMISSION'S APPROVAL OF THE
FIRST RESOLUTION ESTABLISHING THE PROPOSED SPECIAL
ASSESSMENT DISTRICT, WHICH ELECTION WILL BE A MAIL BALLOT
ELECTION, CONDUCTED BY THE CITY CLERK AND CITY ATTORNEY'S
OFFICE, AND WHICH IS ESTIMATED TO BE HELD SOMETIME IN APRIL
2012; AND 2) FURTHER APPROVING THE ATTACHED "SUNSET ISLANDS 3
AND 4 SPECIAL ASSESSMENT DISTRICT FOR UNDERGROUNDING
UTILITIES MAIL BALLOT ELECTION PROCEDURES", WHICH NOT ONLY
SETS FORTH THE PROCESS AND PROCEDURES FOR THE
AFORESTATED MAIL BALLOT ELECTION, BUT WHICH WILL ALSO SERVE
AS THE TEMPLATE FOR FUTURE MAIL BALLOT ELECTIONS IN THE
EVENT OF SUBSEQUENT REQUESTS BY OTHER HOG'S AND/OR CITY
NEIGHBORHOODS TO PROCEED WITH THE CREATION OF SPECIAL
ASSESSMENT DISTRICTS FOR UNDERGROUND UTILITES IN THEIR
AREAS.
WHEREAS, in areas of the City, utility lines for services such as telephone, electricity,
and cable television exist overhead; and
WHEREAS, certain residential neighborhoods in the City have requested the relocation
of overhead utility lines underground; and
WHEREAS, the City recognizes its innate ability to assist with said initiatives and to
provide a collection mechanism, such as those used with special assessment districts created
pursuant to Chapter 170, Florida Statutes, at the request of individual neighborhoods; and
WHEREAS, pursuant to Resolution No. 2002-24761, adopted on February 20, 2002, the
City Administration has been working with the Sunset Islands 3 and 4 Homeowners'Association
(HOA) toward the creation of a special assessment district to fund the conversion of overhead
utilities to underground on said Islands; and
WHEREAS, although not required pursuant to Chapter 170, Florida Statutes, on or
about 2002, and in light of increased requests by various HOA's throughout the City for the
creation of special assessment districts to fund underground utilities conversions, and in order
to gauge whether there was support for same among the majority of property owners in those
neighborhoods/areas, the City Commission self-imposed certain additional requirements, as a
matter of policy, prior to finalizing the creation of and establishing any such special assessment
district; and
WHEREAS, one of these requirements requires that an election be held within the
proposed district, with at least sixty percent (60%) of the benefited property owners (within the
proposed district) voting in favor of its creation; and
WHEREAS, the City's policies require such election to be held between the City's
approval and adoption of the first Resolution, which establishes the City's intent to create the
proposed special assessment district, and the second and final Resolution, which creates the
district and approves the final assessment roll; and
WHEREAS, the Sunset Islands 3 and 4 HOA has been working with the Administration
on its proposed undergrounding district, and has reached the point where the initial Resolution
establishing its district will likely be presented to the City Commission sometime in late Summer
or early Fall 2012; and
WHEREAS, notwithstanding the above, the HOA has expressed a concern that, as
many of its residents are seasonal residents, and in order to have optimum voter turnout for the
required election to approve the district, it would be in the best interest of the HOA to be able to
hold that election sometime in April 2012 (i.e. before the City's consideration of the first
Resolution initially establishing the proposed district); and
WHEREAS, the proposed election would be a mail ballot election, conducted and
overseen by the City Clerk and City Attorney's Office; and
WHEREAS, as Chapter 170 does not legally require an election, and as the election
requirement was established pursuant to City Commission policy, the City Administration and
City Attorney's Office have no objection to the HOA's request; and
WHEREAS, additionally, the City Clerk and City Attorney's Office have prepared mail
ballot election procedures for the proposed Sunset Islands 3 and 4 Special Assessment District
which procedures are attached and incorporated as Attachment"A" hereto; and
WHEREAS, the Administration and City Attorney's Office recommend approval of the
attached procedures and, if approved, would recommend that such procedures also be herein
adopted and approved as the uniform procedures to satisfy the City's election requirement, in
conjunction with future requests by other HOA's and/or City neighborhoods for the creation of
special assessments districts for undergrounding utilities in their areas.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby take the following actions with respect to the ongoing process for the
proposed creation of the Sunset Island Nos. 3 and 4 Special Assessment District for
Undergrounding Utilities: 1) approving and allowing the Sunset Islands 3 and 4 HOA to conduct
the election required by the City prior to the City Commission's approval and establishment of
the first Resolution establishing the proposed special assessment district; which election will be
a mail ballot election, conducted by the City Cleric and City Attorney's Office, and which is
estimated to be held sometime in April 2012; and 2) further approving the attached the "Sunset
Islands 3 and 4 Special Assessment District for Undergrounding Utilities Mail Ballot Election
Procedures," which not only sets forth the process and procedures for the aforestated mail
ballot election, but which will also serve as the template for future mail ballot elections in the
event of subsequent requests by other HOA's and/or City neighborhoods to proceed with the
creation of special assessment districts for underground utilities in their areas.
PASSED AND ADOPTED this ?4A day of rt6rk4 2012
113 MAYOR
ATTEST: �P''• :�,5
*`:INCORP ORATED:
CITY CLERK ��••.,• •,•'
�cH•26��
F:%ATT0L4GUR%RES0S-0RD1Sunset Islands 3 and 4 Special Assessment District Reso(2-1-12).doc
APPIRMW AS TO
FMM& GUAGE
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Dat
Exhibit "B"
Sample Ballot Question and Instructions
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® MIAMI BEACH
CITY OF MIAMI BEACH
OFFICIAL BALLOT
VOTE TO ESTABLISH SUNSET ISLANDS 3 & 4 SPECIAL ASSESS-
MENT DISTRICT TO PAY FOR UNDERGROUNDING OF UTILITIES
QUESTION
SHOULD THE CITY OF MIAMI BEACH ESTABLISH A
SPECIAL ASSESSMENT DISTRICT ON SUNSET IS-
LANDS 3 AND 4 (THE "DISTRICT") FOR THE PUR-
POSE OF PAYING FOR THE UNDERGROUNDING OF
ELECTRICAL, TELEPHONE, AND CABLE TELEVI-
SION SERVICE UTILITIES (THE "PROJECT"), WHICH
WOULD RESULT IN AN INDIVIDUAL NOT TO EX-
CEED ASSESSMENT TO EACH BENEFITTED PROP-
ERTY WITHIN THE PROPOSED DISTRICT OF: 1)
$ , PER PROPERTY, PER YEAR,
FOR TEN (10) YEARS, FOR A TOTAL OF
$ ; OR, AT THE OPTION OF
THE PROPERTY OWNER (TO BE MADE AT A LATER
DATE), 2) A ONE-TIME NOT TO EXCEED PAYMENT
OF $ , WHICH WOULD BE DUE
PRIOR TO COMMENCEMENT OF CONSTRUCTION
OF THE PROJECT?
I f4cy CIRCLE ONE
*INCOA AMD* YES [ESTABLISH THE DISTRICT]
3y H z6°��•y
NO[DO NOT ESTABLISH THE DISTRICT]
..............................................................................................................................................................
RETURN SEALED BALLOTS BY MAIL NO LATER THAN
The Official Ballots will be opened on at
In the City Clerk's Office, 1700 Convention Center Dr, Miami
Beach, Florida 33139
........................................................................................................................................................................................................................
® MIAMI BEACH
CITY OF MIAMI BEACH
OFFICIAL BALLOT QUESTION
INSTRUCTIONS
1) CONTENTS:
• One"White Envelope"addressed to the City of Miami Beach
• One ballot: "City of Miami Beach Official Ballot"
(Sunset Islands 3"blue ballot"and 4"yellow ballot'; AND
• One envelope labeled "BALLOT ENVELOPE."
2) After reading the"Official Ballot'question, on the ballot, circle one of the
appropriate answer: "Yes"or"No."
3) Place voted "Official Ballot" inside the enclosed "Ballot Envelope" and
seal.
4) Insert "Ballot Envelope" into the pre-stamped "White Envelope"
addressed to the City of Miami Beach and seal.
IMPORTANT
Your Ballot Will Not Be Counted If The Actual Sunset Island
Property Address Is Not Listed On The Top Left Corner Of The
"White Envelope"Addressed To The City Of Miami Beach.
5) Write the actual Sunset Island property address in the top left corner of
the"White Envelope."
6) Mail the "White Envelope," or bring it directly to the City Clerk's Office,
located at City Hall, 1700 Convention Center Drive, First Floor, Miami
Beach, no later than
7) For questions or replacement ballots contact the City Clerk's Office at
305-673-7411.
Ballot opening will be done on:
Date: Time:
Location: