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2017-30042 Resolution RESOLUTION 2017-30042 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE A LANDSCAPE MAINTENANCE MEMORANDUM OF AGREEMENT (MMOA), ATTACHED AS EXHIBIT 1, BETWEEN THE CITY AND THE FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT), WHICH WOULD CONVEY FULL LANDSCAPE MAINTENANCE RESPONSIBILITIES TO THE CITY, FOR THE ENHANCED LANDSCAPING ON THE EAST SIDE OF ALTON ROAD, BETWEEN 7TH STREET AND 8TH STREETS; AND REQUIRE ALTON ROAD DEVELOPMENT, LLC (THE "PROPERTY OWNER") OF 709 ALTON ROAD, TO EXECUTE A DECLARATION OF RESTRICTIONS, ATTACHED HERETO AS EXHIBIT 2, WHICH RESTRICTIONS WOULD ENSURE REIMBURSEMENT TO THE CITY OF THE LANDSCAPING IMPROVEMENTS AND MAINTENANCE COSTS ASSOCIATED WITH THE MMOA. WHEREAS, Alton Road Development, LLC (the "Property Owner"), is the property owner of 709 Alton Road; and WHEREAS, the City of Miami Beach (the "City") requested that the proposed development at 709 Alton Road improve the area between the back of curb and the edge of the Alton Road right-of-way with landscaping; and WHEREAS, the landscaping includes eleven live Oak trees with White Fountain Grass as understory plantings; and WHEREAS, pursuant to this request, FDOT has approved the development's request for work within the Alton Road right-of-way; and WHEREAS, FDOT will allow the private development to install minimal landscaping along urban corridors as part of a private development project, as long as the municipality involved agrees to execute a Landscape Maintenance Memorandum of Agreement (MMOA) with FDOT, accepting full maintenance responsibility over the landscaped area (Exhibit 1); and WHEREAS, there have been similar requests approved by the City, where minimum landscaping was installed. Most recently, the City Commission approved an agreement for maintenance of landscaping, irrigation and bonded aggregate along Alton Road from 5th Street to Michigan Avenue via Resolution No. 2012-27899; and WHEREAS, additionally, the current City Ordinance requires that the adjacent property owner maintain all items to the back of curb. To adherence to approved site plans, and clarify that level of maintenance, the City will have the property owner record a covenant regarding their responsibility to adequately maintain these items (Exhibit 2). NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve and authorize the Mayor and the City Clerk to execute a Landscape Maintenance Memorandum of Agreement (MMOA), attached as Exhibit 1, between the City and the Florida Department Of Transportation (FDOT), which would convey full landscape maintenance responsibilities to the City, for the enhanced landscaping on the east side of Alton Road, between 7th Street and 8th Streets; and require Alton Road Development, LLC (the "Property Owner") of 709 Alton Road, to execute a Declaration of Restrictions, attached hereto as Exhibit 2, which restrictions would ensure reimbursement to the City of the landscaping improvements and maintenance costs associated with the MMOA. PASSED and ADOPTED this 12 day of Ocber 2017. s ATTEST: ` ,�. Philip /vine, r : Resolutions - C7 0 MAM1 BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: October 18, 2017 SUBJECT A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE A LANDSCAPE MAINTENANCE MEMORANDUM OF AGREEMENT (MMOA), ATTACHED AS EXHIBIT 1, BETWEEN THE CITY AND THE FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT), WHICH WOULD CONVEY FULL LANDSCAPE MAINTENANCE RESPONSIBILITIES TO THE CITY, FOR THE ENHANCED LANDSCAPING ON THE EAST SIDE OF ALTON ROAD, BETWEEN 7TH STREET AND 8TH STREETS; AND REQUIRE ALTON ROAD DEVELOPMENT, LLC (THE "PROPERTY OWNER") OF 709 ALTON ROAD, TO EXECUTE A DECLARATION OF RESTRICTIONS, ATTACHED HERETO AS EXHIBIT 2, WHICH RESTRICTIONS WOULD ENSURE REIMBURSEMENT TO THE CITY OF THE LANDSCAPING IMPROVEMENTS AND MAINTENANCE COSTS ASSOCIATED WITH THE MMOA. RECOMMENDATION The Administration recommends adopting the Resolution. ANALYSIS Alton Road Development, LLC (the Owner) is the property owner of 709 Alton Road. The City of Miami Beach requested that the proposed development at 709 Alton Road (Baptist Health) improve the area between the back of curb and the edge of the Alton Road right-of-way with landscaping. The landscaping includes eleven Live Oak trees with White Fountain Grass as understory plantings. Alton Road falls within the jurisdiction of the Florida Department of Transportation (FDOT). Pursuant to this request, FDOT has approved the developer's request to work within the Alton Road right-of-way. FDOT policy allows private developments to install minimal landscaping along urban corridors, as part of its development project, as long as the municipality involved agrees to enter into a Landscape Maintenance Memorandum of Agreement (MMOA) with FDOT, which would convey maintenance responsibilities for the enhanced features installed along the right-of-way to the City after the project is installed. The City of Miami Beach has also executed several similar agreements in the past, where minimum landscaping has been installed (i.e City Commission Resolution No. 2012-27899, an agreement for maintenance of landscaping, irrigation and bonded aggregate along Alton Road from 5th Street to Page 352 of 1633 Michigan Avenue). The City of Miami Beach Ordinance requires the adjacent property owner to maintain all items to the back of curb, as well as to adhere to approved site plans, clarifying the level of maintenance. The City also requires the Owner to record a covenant (the "Declaration") regarding their responsibility to adequately maintain these items to ensure maintenance and reimbursement to the City of any costs incurred due to the installation and maintenance of the enhanced landscaping abutting the Property on Alton Road. The Declaration is consistent with the requirements of Section 98-166 of the City Code, for the Owner to maintain the sidewalks and landscaping fronting the Property. CONCLUSION The Administration recommends that the Mayor and City Commission adopt the Resolution. Legislative Tracking Public Works ATTACHMENTS: Description o MMOA- CMB - Permits 709 Alton Road o FDOT Landscape ROW permit o Executed Restrictive Covenant o RESO Page 353 of 1633 FLORIDA DEPARTMENT OF TRANSPORTATION LANDSCAPE AND BONDED AGGREGATE SURFACES MAINTENANCE MEMORANDUM OF AGREEMENT WITH THE CITY OF MIAMI BEACH This AGREEMENT, entered into on , 20 , by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, an Agency of the State of Florida, hereinafter called the DEPARTMENT, and the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida, hereinafter called the CITY, and collectively referred to as the PARTIES . RECITALS: A. The DEPARTMENT has jurisdiction over State Road (SR) 907 (Alton Road) from 5th Street to 63rd Street, which is located within the limits of the CITY; and B. The CITY, pursuant to Permit Number 2017 L 691 014, has drafted design plans for beautification improvements along SR-907 (Alton Road) , the limits of which are described in the attached Exhibit 'A' (the PROJECT LIMITS) , which by reference shall become a part of this AGREEMENT; and C. The CITY will install landscape and bonded aggregate surfaces along SR-907 within the PROJECT LIMITS, in accordance with the design plans for Permit Number # 2017 L 691 014 (the "Project") ; and D. The PARTIES to this AGREEMENT mutually recognize the need for entering into an agreement designating and setting forth the responsibilities of each party with regards to the maintenance of the landscape and bonded aggregate surfaces installed pursuant to the Project; and E . The CITY, by Resolution No. , dated attached hereto as Exhibit `B' , which by reference shall become a part of this AGREEMENT, desires to enter into this AGREEMENT and authorizes its officers to do so. NOW, THEREFORE, for and in consideration of the mutual benefits contained herein and other good and valuable consideration, the PARTIES covenant and agree as follows : Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 1 of 14 Page 354 of 1633 1 . RECITALS The recitals in this AGREEMENT are true and correct, and are incorporated herein by reference and made a part hereof. 2 . ASSIGNMENT OF MAINTENANCE RESPONSIBILITIES The PARTIES agree that the execution of this AGREEMENT shall constitute an assignment of all maintenance responsibilities pertaining to the landscape and bonded aggregate surfaces (collectively the "IMPROVEMENTS") within the PROJECT LIMITS to the CITY upon the DEPARTMENT' s issuance of the executed Permit to the CITY. 3 . CITY' S MAINTENANCE RESPONSIBILITIES So long as the IMPROVEMENTS remain in place, the CITY shall be responsible for the maintenance of the same . The CITY shall maintain the IMPROVEMENTS in accordance with all applicable DEPARTMENT guidelines, standards, and procedures, which shall include but shall not be limited to the Maintenance Rating Program Handbook, as may be amended from time to time . Additionally, with respect to the landscape, the CITY shall maintain same in accordance with the International Society of Arboriculture standards, guidelines and procedures, the latest edition of the "Maintenance Rating Program", and Index 546 of the latest DEPARTMENT Design Standards, as may be amended from time to time . The CITY shall further maintain the IMPROVEMENTS in accordance with the standards set forth in the Project Plans, and in the Project Specifications and Special Provisions . The CITY' s maintenance obligations shall include but not be limitedto : 3 . 1 General Requirements : a. Removing and disposing of litter from PROJECT LIMITS in accordance with all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time . b. Removing and disposing of all trimmings, roots, branches, litter, and any other debris resulting from the activities described by 3 . 2 through 3 . 3 . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 2 of 14 Page 355 of 1633 c . Maintaining a service log of all maintenance operations that sets forth the date of the maintenance activity, the location that was maintained, and the work that was performed. d. Submitting Lane Closure Requests to the DEPARTMENT when maintenance activities will require the closure of a traffic lane in the DEPARTMENT' s right-of-way. Lane closure requests shall be submitted through the District Six Lane Closure Information System, to the DEPARTMENT' s area Permit Manager and in accordance with the District Six Lane Closure Policy, as may be amended from time to time . 3.2 Landscape and all associated improvements : a. Mowing, cutting and/or trimming and edging the grass and turf within the PROJECT LIMITS . b. Pruning all plant materials, which include trees, shrubs and ground covers, and parts thereof, including all material from private property encroaching into the DEPARTMENT' S Right-of-Way. c . All pruning and trimming will follow the Maintenance Rating Program Handbook which specifically requires no encroachment of trees, tree limbs or vegetation in or over travel way (or clear zone) lower than 14 . 5 feet, or lower than 10 feet over sidewalks . d. Removing and properly disposing of dead, diseased or otherwise deteriorated plants in their entirety, and replacing those that fall below the standards set forth in the Project Plans and in the Project Specifications, incorporated herein by reference, and all applicable DEPARTMENT guidelines, standards and procedures, as may be amended from time to time . All replacement materials shall be in accordance with the Project Plans and the Project Specifications and Special Provisions . e . Mulching all plant beds and tree rings . f. Removing and disposing of all undesirable vegetation including but not limited to weeding of plant beds and removal of invasive exotic plant materials . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 3 of 14 Page 356 of 1633 g. Watering and fertilizing all plants as needed to maintain the plant materials in a healthy and vigorous growing condition. h. Repairing irrigation systems and associated components as needed. Paying for all water use and all costs associated therewith. i . Repairing decorative lighting systems as needed. Paying for all electricity and all costs associated therewith. j . Removing and disposing of litter from roadside and median strips in accordance with all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time . k. Repairing all sidewalks damaged by landscaping found inside and outside the DEPARTMENT' s Right-of-Way. 1 . Removing and disposing of all trimmings, roots, branches, litter, and any other debris resulting from the activities described by 3 .A through 3 .K. 3.3 Bonded Aggregate Surfaces: a. Performing routine and regular inspections of the bonded aggregate surfaces to ensure that the surface is fully functional; identifying damage and/or malfunctions in the surfaces; and repairing and/or replacing damaged bonded aggregate surfaces to ensure surfaces are maintained in accordance with all applicable DEPARTMENT guidelines, standards, and all applicable American with Disabilities Act (ADA) requirements, as amended from time to time . b. The CITY shall conduct annual condition surveys of the bonded aggregate surfaces for gaps, settlement, drop-offs and other deficiencies described in this AGREEMENT for the life of the boned aggregate . Ensure and document in this survey that the surface friction of the bonded aggregate surface meets or exceeds the surface friction of the existing concrete sidewalk areas . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 4 of 14 Page 357 of 1633 c . Gaps within the bonded aggregate surfaces shall not exceed a quarter (1/4) of an inch. Gaps at the interface (perimeter) between the bonded aggregate surfaces and the adjacent concrete sidewalk (s) shall not exceed a quarter (1/4) of an inch. This requirement also applies to adjacent areas of existing concrete sidewalk (s) that have been impacted by the trees planted within the bonded aggregate surfaces . d. Differential settlement within the bonded aggregate surfaces shall not exceed a quarter (1/4) of an inch in depth. Differential settlement at the interface (perimeter) between the bonded aggregate surfaces and the adjacent concrete sidewalk (s) shall notexceed a quarter (1/4) of an inch in depth. This requirement also applies to adjacent areas of existing concrete sidewalk (s) that have been impacted by the trees planted within the bonded aggregate surfaces . e . When remedial action is required in accordance with the above requirements, the CITY at its own expense shall complete all necessary repairs within ninety (90) days of the date the deficiency is identified. The CITY shall submit all services logs, inspections and surveys to the DEPARTMENT Warranty Coordinator as required in the above maintenance responsibilities . The DEPARTMENT may, at its sole discretion, perform periodic inspection of the IMPROVEMENTS to ensure that the CITY is performing its duties pursuant to this AGREEMENT. The Department shall share with the CITY its inspection findings, and may use those findings as the basis of its decisions regarding maintenance deficiencies, as set forth in Section 4 of this AGREEMENT. The CITY is responsible for obtaining copies of all applicable rules, regulations, policies, procedures, guidelines, and manuals, and the Project Specification and Special Provisions, as may be amendedfrom time to time . 4 . MAINTENANCE DEFICIENCIES If at any time it shall come to the attention of the DEPARTMENT that the CITY' s responsibilities as established Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 5 of 14 Page 358 of 1633 herein are not being properly accomplished pursuant to the terms of this AGREEMENT, the DEPARTMENT may, at its option, issue a written notice, in care of the CITY MANAGER, to notify the CITY of the maintenance deficiencies . From the date of receipt of the notice, the CITY shall have a period of thirty (30) calendar days, within which to correct the cited deficiency or deficiencies . Receipt is determined in accordance with Section 5 of this AGREEMENT. If said deficiencies are not corrected within this time period, the DEPARTMENT may, at its option, proceed as follows : a. Maintain the IMPROVEMENTS, or a part thereof and invoice the CITY for expenses incurred; or b. Terminate this AGREEMENT in accordance with Section 7, remove any or all of the IMPROVEMENTS located within the PROJECT LIMITS, and charge the CITY the reasonable cost of such removal . 5 . NOTICES All notices, requests, demands, consents, approvals, and other communication which are required to be served or given hereunder, shall be in writing and shall be sent by certified U. S . mail, return receipt requested, postage prepaid, addressed to the party to receive such notices as follows : To the DEPARTMENT: Florida Department of Transportation 1000 Northwest 111 Avenue, Room 6205 Miami, Florida 33172-5800 Attn: District Maintenance Engineer To the CITY: City of Miami Beach 1700 Convention Drive Miami Beach, Florida 33139 Attention : City Manager Notices shall be deemed to have been received by the end of five (5) business days from the proper sending thereof unless proof of prior actual receipt is provided. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 6 of 14 Page 359 of 1633 6 . REMOVAL, RELOCATION OR ADJUSTMENT OF THE IMPROVEMENTS a . The PARTIES agree that the IMPROVEMENTS addressed by this AGREEMENT may be removed, relocated or adjusted at any time in the future, at the DEPARTMENT' s sole discretion . In the event that the DEPARTMENT relocates or adjusts the IMPROVEMENTS, the CITY' s maintenance responsibilities will survive the relocation or adjustment, as long as the materials remain within the PROJECT LIMITS . b. In the event that the DEPARTMENT is required toreplace the sidewalk at any time as part of maintenance activities, a roadway project, or related construction activities, the DEPARTMENT shall replace the same as a concrete type sidewalk, and the CITY' s maintenance obligations under this AGREEMENT shall terminate . However, the CITY may, with the approval of the DEPARTMENT, upgrade the sidewalk type at its sole cost and expense with the understanding that the CITY shall assume all maintenance obligations for the upgraded sidewalk, and enter into a new maintenance agreement . 7 . TERMINATION In addition to the provisions of Section 6 (b) hereunder, this AGREEMENT is subject to termination under any one of the following conditions : a. By the DEPARTMENT, if the CITY fails to perform its duties under Section 3 of this AGREEMENT, following the thirty (30) days written notice, as specified in Section 4 of this AGREEMENT. b. In accordance with Section 287 . 058 (1) (c) , Florida Statutes, the DEPARTMENT shall reserve the right to unilaterally cancel this AGREEMENT if the CITY refuses to allow public access to any or all documents, papers, letters, or other materials made or received by the CITY pertinent to this AGREEMENT unless the records are exempt from Section 24 (a) of Article I of the State Constitution and Section 119 . 07 (1) , of the Florida Statutes . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 7 of 14 Page 360 of 1633 c . If mutually agreed to by both parties, upon thirty (30) days written advance notice . An agreement to terminate shall be valid only if made in writing and executed with the same formalities as this AGREEMENT. d. By the CITY, upon thirty (30) days advance written notice to the DEPARTMENT. Prior to termination of the AGREEMENT under this Section, the CITY shall, at its sole cost and expense, remove all the IMPROVEMENTS and restore the area to a standard concrete sidewalk, in accordance with the DEPARTMENT' S guidelines, standards, and procedures, and to the satisfaction of the DEPARTMENT, and shall further any remaining IMPROVEMENTS, and restore the area to the same or similar condition as existed prior to the installment of the IMPROVEMENTS, in accordance with the DEPARTMENT' S guidelines, standards, and procedures, and to the satisfaction of the DEPARTMENT. 8 . TERMS a . The effective date of this AGREEMENT shall commence upon execution by the PARTIES and shall continue so long as the IMPROVEMENTS remain in place until termination as set forth in Section 7 . b. E-Verify The CITY shall : i . Utilize the U. S . Department of Homeland Security' s E-Verify system to verify the employment eligibility of all new employees hired by the Vendor/Contractor during the term of the contract; and ii . Expressly require any subcontractors performing work or providing services pursuant to the state contract to likewise utilize the U. S . Department of Homeland Security' s E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the contract term. (Executive Order Number 2011-02) The CITY shall insert the above clause into any contract entered into by the CITY with vendors or contractors Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 8 of 14 Page 361 of 1633 hired by the CITY for purposes of performing its duties under this AGREEMENT. c. This writing embodies the entire AGREEMENT and understanding between the PARTIES hereto and there are no other agreements and understanding, oralor written, with reference to the subject matter hereof that are not merged herein and superseded hereby. d. This AGREEMENT shall not be transferred or assigned, in whole or in part, without the prior written consent of the DEPARTMENT. e . This AGREEMENT shall be governed by and constructed in accordance with the laws of the State of Florida . Any provisions of this AGREEMENT found to be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining portions of the AGREEMENT. f. Venue for any and all actions arising out of or in connection to the interpretation, validity, performance or breach of this AGREEMENT shall lie exclusively in a state court of proper jurisdiction in Leon County, Florida . g. A modification or waiver of any of the provisions of this AGREEMENT shall be effective only if made in writing and executed with the same formality as this AGREEMENT. i . The section headings contained in this AGREEMENT are for reference purposes only and shall not affect the meaning or interpretation hereof. j . No term or provision of this AGREEMENT shall be interpreted for or against either Party because the Party or its legal representative drafted the provision . k. The DEPARTMENT is a state agency, self-insured and subject to the provisions of Section 768 . 28, Florida Statutes, as may be amended from time to time . Nothing in this AGREEMENT shall be deemed or otherwise interpreted as waiving the DEPARTMENT' s sovereign immunity protections, or as increasing the limits of liability as set forth in Section 768 . 28, Florida Statutes . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 9 of 14 Page 362 of 1633 9. INDEMNIFICATION Subject to Section 768 . 28, Florida Statutes, as may be amended from time to time, the CITY shall promptly indemnify, defend, save and hold harmless the DEPARTMENT, its officers, agents, representatives and employees from any and all losses, expenses, fines, fees, taxes, assessments, penalties, costs, damages, judgments, claims, demands, liabilities, attorneys fees, (including regulatory and appellate fees) , and suits of any nature or kind whatsoever caused by, arising out of, or related to the CITY' sexercise or attempted exercise of its responsibilities as set out in this AGREEMENT, including but not limited to, any act, action, neglect or omission by the CITY, its officers, agents, employees or representatives in any way pertaining to this AGREEMENT, whether direct or indirect, except that neither the CITY nor any of its officers, agents, employees or representatives will be liable under this provision for damages arising out of injury or damages directly caused or resulting from the negligence of the DEPARTMENT. The CITY' s obligation to indemnify, defend and pay for the defense of the DEPARTMENT, or at the DEPARTMENT' s option, to participate and associate with the DEPARTMENT in the defense and trial of any claim and any related settlement negotiations, shall be triggered immediately upon theCITY' s receipt of the DEPARTMENT' s notice of claim for indemnification . The notice of claim for indemnification shall be deemed received if the DEPARTMENT sends the notice in accordance with the formal notice mailing requirements set forth in Section 5 of this AGREEMENT. The DEPARTMENT' s failure to notify the CITY of a claim shall not release the CITY of the above duty to defend and indemnify the DEPARTMENT. The CITY shall pay all costs and reasonable attorney' s fees related to this obligation and its enforcement by the DEPARTMENT. The indemnification provisions of this section shall survive termination or expiration of this AGREEMENT, but only with respect to those claims that arose from acts or circumstances which occurred prior to termination or expiration of this AGREEMENT. The CITY' s evaluation of liability or its inability to evaluate liability shall not excuse the CITY' s duty to defend Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 10 of 14 Page 363 of 1633 and indemnify the DEPARTMENT under the provisions of this section . Only an adjudication or judgment, after the highest appeal is exhausted, specifically finding the DEPARTMENT was solely negligent shall excuse performance of this provision by the CITY. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 11 of 14 Page 364 of 1633 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written. CITY OF MIAMI BEACH: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION: BY: BY: CITY Manager District Director of Transportation Operations ATTEST: (SEAL) ATTEST: CITY Clerk Executive Secretary LEGAL REVIEW: BY: BY: CITY Attorney District Chief Counsel Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 12 of 14 Page 365 of 1633 EXHIBIT 'A ' PROJECT LIMITS Below are the limits of the IMPROVEMENTS to be maintained by the CITY under this AGREEMENT. State Road Number: SR-907 Local Street Names : Alton Road Agreement Limits : From 7th Street to 8th Street County: Miami-Dade Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 13 of 14 Page 366 of 1633 EXHIBIT 'B ' CITY OF MIAMI BEACH RESOLUTION To be herein incorporated once ratified by the CITY Board of Commissioners . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 14 of 14 Page 367 of 1633 01 7 N.7 9 1 i 4 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 650-050-09 PERMIT FOR LANDSCAPING ON STATE ROAD RIGHT OF WAYREcEivEMCTIONSUPPORT 01/06 (TURNPIKE AND NON-LIMITED ACCESS ROADWAY ONLY) PERMITS OFFICE' Page 1 oft MI 3 1 2317 THIS SECTION TO BE COMPLETED BY PERMITTEE ,r,,:- •. Date 7/27/2(fil til''';-O .aA Permittee: Name City of Miami Beach Telephone No. 305-673-7080 Address 1700 Convention Center Drive City Miami Beach State FL Zip Code 33139 1. Location of proposed portion of right of way to be landscaped: State Road No. A1A County Miami-Dade Street Name Collins Avenue Address 709 Alton Road Section 87037 Sub-Section 000 Milepost 0.173 2. Is proposed site to be landscaped within corporate limits of municipality? ® Yes ❑ No If yes, name the municipality City of Miami Beach 3. Permittee declares that prior to filing this application for permit, he/she has ascertained the location of all existing utilities, both aerial and underground, and the accurate locations are shown on the landscape plans. A letter of notification was mailed on 4/5/2017 to the following utilities/municipalities: AT&T, Atlantic Broadband, City of Miami Beach PWD, Crown Castle NG, Miami Dade County PWD, Florida Gas, FP&L, Hotwire Communications, Sprint/Nextel, TECP PGS 4. Landscaped areas will not be permitted on state road limited access facilities except on Florida's Turnpike as allowed in Rule 14-40.003(3)(f). 5. It is expressly stipulated that this permit is a license for permissive use only and that the construction within and/or upon public property pursuant to this permit shall not operate to create or vest any property right in said holder. This permit does not relieve the permittee of local or other jurisdictional requirements. 6. The project shall meet the requirements of Rule 14-40.003,Florida Administrative Code. The Permittee shall construct and maintain according to the attached landscape plans, maintenance plans and maintenance of traffic plans. 7. The Permittee shall be responsible for all maintenance of the landscaped area,as described in this permit,for the duration of time the landscaped area exists on Department right of way. The maintenance shall be performed in accordance with Department procedures under the direction of the Area Maintenance Engineer or designee. 8. Whenever it is determined by the Department that it is necessary for the construction, repair, improvement,maintenance,safe and/or efficient operation,alteration or relocation of any portion or all of said highway and/or public transportation facility;any and all landscaping installed by the Permittee shall be immediately removed from said highway or reset or relocated thereon as required by the Department, all at the expense of the Permittee. 9. All material and equipment shall be subject to inspection by the Maintenance Engineer or his/her authorized representative. 10. During construction of landscape project, all safety regulations of the Department shall be observed and the holder must take measures, including placing and displaying of safety devices,that may be necessary in order to safely conduct the public through the project area in accordance with the Department's current edition of Roadway and Traffic Design Standards, Index Series 600,the Manual of Uniform Traffic Control Devices, and the Standard Specifications for Road and Bridge Construction, section 5-8.4. 2017Pag . 68 •' Fc 3 1 :.1 I 650-050-09 PRODUCTION SUPPORT 01/06 Page 2 of 2 PERMITTEE CONT'D 11. The Permittee shall notify the appropriate Area Maintenance Engineer or designee 48 hours prior to starting work and again immediately upon completion of work. 12. In case of non-compliance with the Department's requirements in effect as of the approved date of this permit, this permit is void and the work will have to be brought into compliance or removed from the right of way at no cost to the Department. Any false information supplied on this form renders this permit null and void. 13. The Permittee, shall indemnify, defend, and hold harmless the Department and all of its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any acts, actions, neglect, or omission by the Permittee, its agents, employees, or subcontractors during the performance of the landscape project as approved by this permit, whether direct or indirect, and whether to any person or property to which the Department or said parties may be subject, except that neither the Permittee nor any of its subcontractors will be liable under this Article for damages arising out of the injury or damage to persons or property directly caused or resulting from the negligence of the Department or any of its officers, agents or employees. 14. I, the undersigned, do hereby agree to comply with all requirements established by this permit and Rule Chapter 14-40, Florida Administrative Code. Submitted By: SIG =TUB' PERMITTEE) Carey Osbourne, Right-of-Way Manager (NAME TYPED OR PRINTED) THIS SECTION T BE COMPLETED BY DEPARTMENT PERSONNEL The above landscape project is: pproved El Not Approved If not approved,the reason is: The Permittee shall co en e work within 6 0 days of permit approval date and shall be completed by ci/& / F . Special conditions/instructions by the Department: SED A 9 ili Ei d () A copy of Rule 14-40, F.A.C., is attached hereto and made a part of this permit. ISit, 9/Date Issued: 17 (SI ATURE OF AU ORIZED DEPARTMENT OFFICIAL) 0 1 <----- sr a 4 ;C{QG L t Cz,� 6_ . Permit Not 11 ( n a (TYP D OR PRINTED NAME) ' PE+ OR PRINTED TITLE) Page 369 of 1633 SPECIAL PROVISIONS FOR LANDSCAPE PERMIT # 2017 L 691 14 Section: 87037, State Road 907 / ALTON RD LANDSCAPING PERMIT FOR CITY OF MIAMI BEACH LOCATED AT 709 ALTON RD. 1. PLEASE COORDINATE A PRE-CONSTRUCTION MEETING WITH MR.ALBERT ESTEVEZ at(305)640-7144/(954)699-8873,Email: Albert.Estevez(&,,dot.state.fl.us AT LEAST FORTY-EIGHT(48)HOURS PRIOR TO COMMENCEMENT OF WORK. 2. Submit a detailed lane closure form, noting work and time phases thru the Lane Closure Information System (LCIS) at http://www.fdoticis.com/closures.aspx .The lane closure request shall be approved by the Department at least 2 weeks prior to beginning work within the FDOT Right of Way. There shall be no lane closures (Unless approved by the District Maintenance Engineer/or the District Maintenance of Traffic Specialist)from Thanksgiving Day to New Year's Day,due to Moratorium. 3. WORKING DAYS AND HOURS WITHIN THE F.D.O.T.RIGHT-OF-WAY SHALL BE BETWEEN 9:30 A.M.AND 3:00 P.M.,DAYTIME,OFF-PEAK HOURS(WEEK-END WORK OPTIONAL),OR AS DIRECTED BY THE DEPARTMENT REPRESENTATIVE PRIOR TO COMMENCEMENT OF WORK. 4. APPLICANT SHALL TAKE RESPONSIBILITY FOR THE PROPER MAINTENANCE,SURVIVAL AND CONDITION OF ALL LANDSCAPING AT NO ADDITIONAL COST TO THE DEPARTMENT. 5. TREES BEING PLANTED IN DEPARTMENT'S RIGHT-OF-WAY(FDOT R/W)MUST ADHERE TO STANDARD INDEX 544,546,AND 700.ALL TREES AND LANDSCAPING BEING ACCIDENTLY DESTROYED ON FDOT R/W BY THE PERMITTEE SHALL BE REPLACED TO MATCHING THE SIZE AND SPECIES OF THOSE BEING DESTROYED. 6. WHEN THE PERMITTEE'S OPERATIONS ENCOUNTER OR EXPOSE ANY ABNORMAL CONDITION WHICH MAY INDICATE THE PRESENCE OF A HAZARDOUS WASTE,TOXIC WASTE,OR CONTAMINANTS,SUCH OPERATIONS SHALL CEASE IMMEDIATELY IN THE VICINITY OF THE ABNORMAL CONDITION AND THE DEPARTMENT'S INSPECTOR AND MS.MARIA SALGADO OF THE ENVIRONMENTAL MANAGEMENT OFFICE AT 1000 NW 111 AVE MIAMI FLORIDA 33172 (TELEPHONE NUMBER (305)470-5308)SHALL BE INFORMED OF THE FIELD ASSESSMENT RESULTS. EVERY EFFORT SHALL BE MADE BY THE PERMITTEE TO MINIMIZE THE SPREAD OF ANY CONTAMINATION INTO UNCONTAMINATED AREAS.NOTIFICATION OF PERSONNEL AND SELECTION OF COURSE ACTION SHALL BE IN ACCORDANCE WITH PROCEDURE 650-030-010-B,RESOLUTION OF RIGHT-OF-WAY CONTAMINATION ISSUES.UNDER NO CIRCUMSTANCES WILL THE PERMITTEE RESUME OPERATIONS IN THE AFFECTED AREA UNTIL SO DIRECTED BY THE DEPARTMENT'S INSPECTOR. 7. A COPY OF THIS PERMIT AND PLANS WILL BE ON THE JOB SITE AT ALL TIMES DURING THE CONSTRUCTION OF THIS FACILITY 8. PERMITTEE IS CAUTIONED THAT UTILITIES MAY BE LOCATED WITHIN THE CONSTRUCTION AREA. 9. VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. 10. DAMAGED SIDEWALKS AND/OR CURB AND GUTTER SHALL BE RESTORED WITH FULL 4"THICK FLAGS WITH EXPANSION MATERIAL AND TACTILE FOR HANDICAP RAMPS ACCORDING TO INDEXES 300,304 AND 310 AND SPEC.522. 11. THE PAVEMENT IS NEW.IN THE EVENT THATTHE ROADWAY PAVEMENT IS DAMAGED,IT SHALL BE RESTORED 50-FT.AT EITHER SIDE AND AT FULL LANE WIDTH TO MATCH OR EXCEED EXISTENT CONDITIONS AND IN ACCORDANCE WITH THE DEPARTMENT'S DESIGN STANDARDS AND SPECIFICATIONS.PAVEMENT RESTORATION SCOPE AND METHOD WILL BE AS DIRECTED IN THE FIELD BY THE DEPARTMENT REPRESENTATIVE.DAMAGED PAVEMENT WILL BE RESTORED AT THE EXPENSE OF THE PERMITTEE. 12. IN THE EVENT THAT SOD IS DAMAGED DURING CONSTRUCTION,IT MUST BE REPLACED AND MAINTAINED UNTIL THE SOD IS ESTABLISHED. 13. ALL PORTIONS OF THE STATE RIGHT-OF-WAY DISTURBED IN THE CONSTRUCTION OF THE PROPOSED WORK SHALL BE RESTORED TO F.D.O.T.SPECIFICATIONS. 14. FINAL RESTORATION SHALL BE COORDINATED WITH THE DEPARTMENT REPRESENTATIVE. ALL PORTIONS OF THE STATE RIGHT-OF-WAY DISTURBED IN THE CONSTRUCTION OF THE PROPOSED WORK SHALL BE RESTORED TO F.D.O.T.SPECIFICATIONS WITHIN THIRTY(30)DAYS UPON COMPLETION OF THE PERMITTED INSTALLATION. 15. IF F.D.O.T.ROADWAY IMPROVEMENTS HAVE COMMENCED OR RECENTLY BEEN COMPLETED PRIOR TO THE INSTALLATION OF THE WORK APPROVED UNDER THIS PERMIT,THIS PERMIT SHALL BECOME VOID. 16. BEGINNING ANY WORK WITHIN THE F.D.O.T.RIGHT-OF-WAY ASSOCIATED WITH THIS PERMIT CONSTITUTES ACCEPTANCE OF THESE CONDITIONS. Page 370 of 1633 Page 1/1 Florida Administrative Code Chapter 14-40 LANDSCAPING PERMIT GENERAL PROVISIONS - PERMIT # 2017 L 691 14 14-40.003 Highway Landscape Projects. (1) Department Authorization Required. No landscaping may be altered, removed, or installed on the Department's right of way by any person without written authorization by the Department pursuant to this Rule Chapter. All requirements for restoring the Department's right of way and highway landscape projects, where such restoration is made necessary by the construction or maintenance of utilities, are specified in the Utility Accommodation Manual, incorporated by reference under Rule 14-46.001. Requests to remove, cut, or trim, vegetation that screens outdoor advertising signs for which outdoor advertising sign permits have been issued pursuant to Chapter 479, Florida Statutes, must be made in accordance with Part III of this Rule Chapter. (2)Definitions. (a) "Abutting Private Property Owner" means any person or entity having lawful control of land which adjoins, or is contiguous to, Department non limited access right of way. (b) "Department" means the Florida Department of Transportation. (c) "Highway Landscape Project" means any planned or actual landscape or landscaping on Department right of way, including construction or installation, planning, beautification, and maintenance thereof, by a local government entity,non governmental entity, or abutting private property owner. (d) "Landscape" or "Landscaping" means any vegetation, mulches, irrigation systems, and any site amenities, such as, street furniture, decorative paving, fences, and lighting (excluding public utility street and area lighting). (e) "Local Governmental Entity" means as defined in Section 11.45(1)(e), Florida Statutes. (f) "Non Governmental Entity" means any person or organization, other than a governmental entity, who seeks approval of a highway landscape project. (g) "Screen" or "Screening" means the planting or installation of any vegetation or other landscape material which will reach a height greater than the height of the bottom of the lowest sign face, as viewed from a height of 3.5 feet above the roadway surface at the edge of the travel lane closest to the outdoor advertising sign. (3)Approval Criteria. (a) Approval is based on review of a complete set of landscape plans. The District Landscape Manager can be consulted during preparation of landscape plans. The following plan preparation guidelines must be used: 1. Project data must be included on sheet 1 of the plans, and must include a location map with beginning and end of project mile posts, index of plans included in the set, state road number, local government and contact information, and name and address of the person and firm who prepared the plans. 2. Plans must be drawn to scale, exhibiting an accurate and legible representation of existing conditions (above and below ground), and all proposed work. Plans must show all dimensions necessary to demonstrate compliance with this rule. If there is a baseline survey or centerline of construction, station points must be Page 371 of 1633 Irrigation schedule, supply source, and method of application. Special care required for any hardscape materials, lighting, signage,benches, or other site amenities. Litter pick-up and removal schedule(prior to mowing cycle or as needed). A work zone traffic control plan(if necessary) for installation and maintenance of the project. lAn estimate of manpower and equipment required to achieve an acceptable level of maintenance. 6. As-built plans, or a summary of changes, are required for all landscape projects. 7. Plans prepared by or for Department highway landscape projects must be signed and sealed by a registered landscape architect. (b) No planting or installation of vegetation or other landscape material for landscape projects, or issuance of permits for such planting or installation, including construction and beautification projects, is allowed on Department right of way which screens or which, when mature, will screen an outdoor advertising sign permitted under Chapter 479, Florida Statutes. This prohibition applies to outdoor advertising signs exempt from department permitting requirements that are on the state highway system and located within incorporated municipalities. This prohibition applies to all landscape, construction, and beautification projects on Department right of way regardless of the source of funds for the project, except for landscape projects approved by the Department prior to the date of the original, state sign permit for the sign. For purposes of this rule, a landscape, construction, or beautification project is approved when it is specifically identified in the Department's five year work program, is a permitted landscape project, is part of an executed agreement between the Department and a local government, or has been approved in writing by the Department for installation at a later date by a local government. 1. Screening is prohibited within a permitted vegetation management zone, as defined in Rule 14- 40.030(1)(d). 2. Where there is no permitted vegetation management zone for an outdoor advertising sign, the landscape architect will notify the sign permittee that a highway landscape project is proposed within the view zone. The sign permittee will have 30 days to submit an Application for Vegetation Management that proposes a vegetation management zone (See Part III). The screening prohibition in 1. above will apply upon approval of the Permit for Vegetation Management at Outdoor Advertising Sign. If an Application for Vegetation Management has not been submitted by the sign permittee within 30 days of notification, screening will be prohibited wherever the sign face is not screened within the view zone, beginning at Terminus A and extending along the outside travel lane edge in advance of the sign until the sign face is not screened for a total of 500 feet. Contact information for any permitted sign may be obtained by contacting the State Outdoor Advertising Administrator, Florida Department of Transportation, 605 Suwannee Street, MS 22, Tallahassee, Florida 32399-0450. 3. The limits of the screening prohibition may be adjusted pursuant to a written agreement between the sign permittee and a local governmental entity. (c) A local governmental entity may request approval to alter, remove, or install landscaping on the Department's right of way through submission of a landscape plan . After review by the Department, and the making of any necessary revisions by the local governmental entity, the Department will prepare a written agreement requiring the local governmental entity to properly construct and maintain the landscape project. The landscape plan will become Exhibit A to the agreement. If separate, the maintenance plan as described Subsection(2)(a)7. will become Exhibit B of the agreement. When the agreement is executed, and a Notice to Proceed is issued by the Department, the local governmental entity may proceed with the project. Page 372 of 1633 donated landscape projects by an individual or entity may be erected on the right of way, when the donation includes installation and maintenance pursuant to an executed agreement. Such signs will remain in place for a term of five years, unless otherwise specified in the agreement. The sign must not contain commercial logos or trademarks. Signs will be placed at each end of the landscape project. (a) Interstate Highways: The sign acknowledging donation of landscape projects on the Interstate Highway System will be provided by the Department. This sign will be similar to the Adopt-a-Highway Program sign used by the Department, except that the word "landscaping" will be substituted for the words "litter control" and the colors will be green lettering on white background. The signs shall be installed and maintained by the Department. (b) Arterial Highways: The approved sign design for arterial highways is depicted in Figure 1. The sign panel will be 18 inches tall and 24 inches wide with white background and green lettering, using lettering shown in Figure 1 and fabricated with non-reflective materials. The sign must be mounted on 4 inch by 4 inch pressure treated posts, or break away posts that meet or exceed the requirements of the Roadway and Traffic Design Standards (incorporated by reference under rule 14-85.004, F.A.C.). The top of signs will be a maximum of no more than two feet above grade. Installation of signs is contingent upon an agreement with the appropriate local governmental entity. The approved sign panel(s) must be provided and replaced by the local governmental entity. Signs will be placed according to the approved landscape plan. 3/8- 34‘ SE te• LANDSCAPE z• 2"SERIES "C" By 183 8*SERIES "1 CONTRIBUTOR 1 l ., ..+i ._�_ II Figure I Arial and Limited Access Landscape Roadway Sign Specific Authority 334.044(2), 337.2505 FS. Law Implemented 334.044(25),335.167, 337.2505, 337.405, 339.24, 339.2405, 479.106 FS. History-New 9-22-92,Amended 1-19-99,4-2-02, 5-22-05, 2-8-06. Page 373 of 1633 '12 2 !I -VT-F: 4 3 3 N y ��Q CIw� -, N a..1� 1111f^y m ` a E i . 3 '"o, U I-9 m Q (Yl '�, h h ^ N O N o 0 0 0 0 0 0 "t 1..„...1c. W 2 O a -E " " " " " N 0 V N O O b ry CI O .,C .0�' W•N m tis w I I h 'I' 2 ti N m N b b n n b p c E y_ w h °0 y v o o' _w E c w ! :L U 'p°¢:A 1� W . p 0 :111 u mN _� o ` - " c"; a m k ry C¢UZ°3 � � " '^w h O h O b N a � b M 'C t,N A "N 1:4 b _ _ S�; d iw. B Y O�.h'W Q m N O�. ^ �`! ry m m O O N b n V1.�. 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Biscayne Boulevard, Suite 850 Miami, FL 33131 DECLARATION OF RESTRICTIVE COVENANTS AND MAINTENANCE AGREEMENT KNOW ALL BY THESE PRESENTS that the undersigned Alton Road Development, LLC (the "Owner") hereby makes, declares and imposes on the land herein described, covenants running with the title to the land, which shall be binding on the Owner, its heirs, successors and assigns, personal representatives, mortgagees, lessees, and against all persons claiming by, through or under them (the "Declaration"); WHEREAS, the Owner holds fee simple title to the land in the City of Miami Beach, Florida (the "City"), located at 709-745 Alton Road (Folio Nos. 02-4203- 009-8600, 8610, 8620, 8630), more particularly described as (the "Property"): Lots 9, 10, 11, 12, 13 and 14, Block 106 Ocean Beach Addition No. 3 Subdivision as recorded in Plat Book 2, Page 81, Miami-Dade County, Florida. WHEREAS, the Owner has obtained several development approvals and building permits from the City in connection with its redevelopment of the Property with a commercial development; and WHEREAS, the City requires the Owner to design, construct and install landscaping and architectural features and improvements on the Property and within the public right-of-way adjacent to the Property and further described on Exhibit A attached hereto and incorporated herein by reference (the "Enhancements"); r WHEREAS, the City requests the Declaration from the Owner to ensure that the Owner will maintain or cause to be maintained the Enhancements in a satisfactory matter, without liability or cost to the City; and NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Owner voluntarily • Page 384 of 1633 DECLARATION OF RESTRICTIVE COVENANTS FOR LANDSCAPE MAINTENANCE Page 2 of 9 agree that the Property shall be subject to the following provisions that are intended and shall be covenants running with the land and binding upon the Owner, its successors and assigns, as follows: 1. The Owner shall install all Enhancements in compliance with the conditions described in Historic Preservation Board Order No. 7395, including landscaping and irrigation systems, above-grade utility infrastructure, and pedestrian sidewalk improvements. 2. The Owner agrees to replace, restore, and/or repair the aboveground Enhancements at the Owner's expense following a necessary and permitted utility cut for replacement, construction, or maintenance work of utilities or a major natural disaster. The City shall notify the Owner in writing and provide thirty (30) calendar days' notice in advance of such work and shall make all necessary effort to salvage and store on-site any of the Enhancements' salvageable material and shall provide a temporary restoration surface with a City standard material such as cement or asphaltic concrete. Upon receipt of notice from the City, the Owner shall have forty-five (45) calendar days to undertake any restoration work. Restoration performed within the public right of way should not exceed ten (10) working days following the completion of the repairs/construction activity. This time period may be reasonably extended by the City to account for the impact of permitting delays, unanticipated delays caused by utility providers, and Acts of God (including fire, flood, earthquake, hurricane, or other natural disaster). The City shall remain responsible for all repairs, restorations, or replacement of any underground utilities. Notwithstanding the above, after the completion of any necessary and permitted utility cut for replacement, construction, or maintenance work of utilities, and before the Owner undertakes any restoration work, the Owner and the City shall confer as to whether any party (e.g., the City, any agency, or a private party) intends to perform any work (e.g., any excavation or temporary encroachment) in the future that would be likely to damage, disrupt, disturb, or interfere with any restoration. If such future work is anticipated, then the Owner may request that the City extend the restoration deadline to the date which is forty-five (45) calendar days after such future work is completed (subject to extension to the extent that such restoration cannot be completed using commercially reasonable efforts within such forty-five (45) calendar day period), and such request for an extension shall not be unreasonably withheld, conditioned, or delayed. Furthermore, such deadline shall automatically be extended if the City, any agency, or a private party is scheduled to perform future Page 385 of 1633 DECLARATION OF RESTRICTIVE COVENANTS FOR LANDSCAPE MAINTENANCE Page 3 of 9 work within the area within the six (6) month period following the completion of the prior excavation or temporary encroachment. 3. If the Owner breaches any of its obligations as specified herein (and same are not waived in writing by the City), then the City shall provide the Owner written notice specifying the nature of the default. The Owner shall have thirty (30) calendar days after receipt of such notice within which to cure the specified default, after which time the City may take action to complete the restoration work, at the Owner's expense. However, if the nature of such default is such thatthe same cannot reasonably be cured within such thirty (30) day period, then the Owner shall not be deemed to be in default if the Owner shall, within such period, commence such cure and thereafter diligently prosecute the same to completion. 4. The Owner shall obtain and maintain a liability insurance policy in the covered amount of $1,000,000 per incident, to provide compensation for personal injuries or related claims stemming from any error, omission, negligence, or misconduct on the part of the Owner, or any of its respective officers, agents, servants, employees, or contractors in the installation or maintenance of the Enhancements. The Owner shall add the City as an additional insured on the Certificate of Insurance for Liability. 5. The Owner shall indemnify, hold and save the City, and its officers, agents, contractors, and employees, whole and harmless from and against all claims, demands, actions, damages, losses, costs, liabilities, expenses, and judgments of any nature recovered from or asserted against the City on account of injury or damage to person(s) or property, to the extent that any such damage or injury may be incident to, arise out of, or be caused, either proximately or remotely, wholly or in part, by any act, error, omission, negligence, or misconduct on the part of the Owner, or any of their respective officers, agents, servants, employees, or contractors in the installation or maintenance of the Enhancements. The Owner shall be entitled to select counsel of the Owner's choice to defend the claim; provided, however, that such counsel shall first be approved by the City Attorney, which approval shall not be unreasonably conditioned, withheld or delayed; and provided further, that the City shall be permitted, at its cost and expense, to retain independent counsel to monitor the claim proceeding. Notwithstanding the foregoing, the Owner shall not be obligated or liable to the City, or any third parties, for any claims, demands, actions, damages, losses, costs, liabilities, expenses, or judgments resulting from the negligence, recklessness, or willful misconduct of the City or its officials, Page 386 of 1633 DECLARATION OF RESTRICTIVE COVENANTS FOR LANDSCAPE MAINTENANCE Page 4 of 9 employees, contractors, representatives, or agents. 6. The Owner acknowledges that the City shall have no financial and/or other obligation and/or liability for the maintenance of the Enhancements (including, without limitation, any liability for improper or inadequate maintenance by the Owner); these are the sole obligations of the Owner to maintain. Additionally, it is the intent of the parties hereto that no third party beneficiary rights are created or acknowledged through this Declaration. 7. The provisions of this Declaration shall become effective, and shall be binding upon the Owner, and the Owner's successors and assigns, upon its recordation in the public records of Miami-Dade County, Florida, and shall continue in effect for a period of thirty (30) years after the date of such recordation, after which time they shall be extended automatically for successive periods of ten (10) years each, unless modified, amended or released prior to the expiration thereof. 8. This Declaration sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings or agreements relating thereto. This Declaration may be modified, amended or released as to any portion of the Property by a written instrument executed by the then owners of the fee-simple title to the land to be affected by such modification, amendment or release providing that same has been approved by the Public Works Director. Should this instrument be so modified, amended or released, the Public Works Director shall execute a written instrument in recordable form effectuating and acknowledging such modification, amendment or release. 9. This Declaration shall be recorded in the Public Records of Miami- Dade County, Florida, at the cost of the Owner. 10. It is understood and agreed that any City official has the right during normal business hours to enter and investigate the use of the Property in order to verify compliance with the conditions of this Declaration and the requirements of the City's building, zoning and land development regulations. 11. An action to enforce the terms and conditions of this Declaration may be brought by the City and may be, at law or in equity, against any party or person violating or attempting to violate any provision of this Declaration or Page 387 of 1633 DECLARATION OF RESTRICTIVE COVENANTS FOR LANDSCAPE MAINTENANCE Page 5 of 9 provisions of the building, zoning or land development regulations, either to restrain violations or to recover damages. 12. This Declaration shall be enforceable in Miami-Dade County, Florida. This Declaration 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 Declaration shall be Miami Dade County, Florida. BY ENTERING INTO THIS DECLARATION, THE OWNER AND THE CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS DECLARATION. 1. 13. In any action or proceeding involving this Declaration or the contents hereof, the prevailing party shall be entitled to recover from the other party the prevailing party's reasonable costs and expenses actually incurred in such action or proceeding, including reasonable attorneys' fees of outside counsel incurred at standard hourly rates. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by either the Owner or the City pursuant to this Declaration shall be in writing and addressed as follows: Page 388 of 1633 DECLARATION OF RESTRICTIVE COVENANTS FOR LANDSCAPE MAINTENANCE Page 6 of 9 If to Alton Road Development, LLC: Alton Road Development, LLC Attn: Michael S. Sheitelman 2200 Biscayne Boulevard Miami, Florida 33137 With copies to: Bercow, Radell Fernandez & Larkin Attn: Graham Penn, Esq. 200 S. Biscayne Boulevard, Suite 850 Miami, Florida 33131 If to the City: City of Miami Beach Attn: City Manager 1700 Convention Center Drive 4th Floor Miami Beach, Florida 33139 With copies to: City of Miami Beach Attn: Public Works Director 1700 Convention Center Drive 4th Floor Miami Beach, Florida 33139 Each Party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. [Execution Pages to Follow] Page 389 of 1633 DECLARATION OF RESTRICTIVE COVENANTS FOR LANDSCAPE MAINTENANCE Page 7 of 9 APPROVED AS TO FORM 86 LANGUAGE 1.1/ _./r..r✓ ty orney Date 41,A ill*City Public Wor s Director Date [SIGNATURE PAGE CONTINUES ON NEXT PAGE] Page 390 of 1633 DECLARATION OF RESTRICTIVE COVENANTS FOR LANDSCAPE MAINTENANCE Page 8 of 9 IN WITNESS WHEREOF, Alton Road Development, LLC has caused these presents to be signed in its name by its proper officials. Witnesse : ,,rY Alton Road Development, LLC nature Address: 2200 Biscayne Boulevard -R�-- net.4 Miami, Florida 33 37 Print Name ,...,.,41,,,.,,.**, ,____ , I A ' Ai Si re y arises Galbut, President 'VI rat 14 .des Print Name STA FE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) On the cco1 day of June in the year 2017, before me, the undersigned, personally appeared MARISA GALBUT, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. NOTARY PU IC, e of Florida at Large (NOTARY SEAL) My Commission Expires: "n„ RRA M.Jt>NE 5 MYCOP4MSS ON 4 ff 191524 EXPIRES:May 21,2019 rdxf; .r Bonded NuWiry Put*Undermita,e Page 391 of 1633 DECLARATION OF RESTRICTIVE COVENANTS FOR LANDSCAPE MAINTENANCE Page 9 of 9 EXHIBIT A Description of Enhancements Page 392 of 1633