Resolution 2018-30417RESOLUTION NO. 2018 -30417
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE, AND APPROVING A
FUNDING AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND
THE SUNSET ISLANDS PROPERTY OWNERS, INC., A NOT- FOR - PROFIT
FLORIDA CORPORATION SERVING AS THE HOMEOWNERS ASSOCIATION
FOR THE SUNSET ISLANDS I AND II NEIGHBORHOODS ( "HOA "); WITH SUCH
FUNDING AGREEMENT PROVIDING THE FRAMEWORK AND TERMS FOR THE
HOA TO COVER CONSTRUCTION COSTS IN EXCESS OF THE CITY'S FY14/15
$200,000 CAPITAL BUDGET APPROPRIATION FOR THE SUNSET ISLANDS I
AND II GATE HOUSE PROJECT ( "PROJECT "), INCLUDING SPECIFIED
IMPROVEMENTS TO THE GATE HOUSE STRUCTURE LOCATED AT 1356
WEST 29TH STREET, MODIFICATIONS TO THE MEDIAN, CONSTRUCTION OF
A SECOND GATE HOUSE STRUCTURE ALONG THE 29TH STREET MEDIAN,
MODIFICATIONS TO THE SECURITY ARMS, BRICK PAVERS, LANDSCAPING,
IRRIGATION AND RELATED IMPROVEMENTS; FURTHER, APPROVING A
MAINTENANCE AND USE EASEMENT AGREEMENT TO PROVIDE FOR THE
HOA TO OPERATE AND MAINTAIN THE GATE HOUSE FOLLOWING
COMPLETION OF THE PROJECT; AND FURTHER AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE THE FINAL NEGOTIATED AGREEMENTS.
WHEREAS, the City is the owner of the Sunset Island Gate House located at 1356 W 29
Street, Miami Beach Florida 33140 -4273 (folio # 9388353583 ROW) (the "Gate House "), as well
as the other improvements located in the public right of way along W 29 Street;
WHEREAS, as part of the City's FY14/15 Capital Budget, the Mayor and City Commission
appropriated funding in the amount of $200,000 (the "City Appropriation ") for the design, permitting
and construction of certain improvements to the existing Gate House( "Gate House
Improvements "); and
WHEREAS, the amounts appropriated are insufficient to fund the construction of certain
additional improvements that the City and the HOA believe would be beneficial in the area,
including the construction of a second guardhouse structure in the center median on W 29 Street;
modifications to the median, installation of brick pavers, conduits for the HOA's security system,
modification to security arms, landscaping and irrigation ( "Additional Improvements "); and
WHEREAS, the Gate House Improvements and the Additional Improvements are depicted
in the concept plan attached hereto as Exhibit "A" (the "Project "); and
WHEREAS, the estimated construction cost for the Project, including contingency, is
approximately $462,000; and
WHEREAS, following the City's payment of expenditures for design and related Project
costs, the amount remaining from the City Appropriation, and available for the construction of the
Project, is $104,000, which funds are insufficient to fund the construction of the Project; and
WHEREAS, subject to the terms and conditions of the Agreement, a copy of which is
attached as Exhibit "B" to the Commission Memorandum accompanying this Resolution, the HOA
agrees to provide funding in excess of the City Appropriation (the "HOA Contribution "), in an effort
to collaborate with the City to facilitate the construction of the Project, for the benefit of the HOA,
its residents, and the City; and
WHEREAS, the City and the HOA desire to confirm, in this Agreement, the terms agreed
to between the City and the HOA with respect to the HOA Contribution and the City's construction
of the Project, which terms provide:
• that the City will competitively bid the Project in accordance with its standard
procurement requirements;
• that, prior to award of the construction contract for the Project, the City shall provide
the HOA with the opportunity to confirm its agreement to make the HOA Contribution, based upon
the final bids the City receives for the Project; and
• that the City and the HOA shall have no obligation to proceed with the Project, until
such time as bids are received, and both the City and the HOA mutually agree upon the final
pricing for the Project and the HOA Contribution; and
WHEREAS, on June 29, 2018, the Finance and Citywide Projects Committee reviewed the
Funding Agreement and Maintenance and Use Easement Agreement, and unanimously
recommended approval thereof,
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 accept the recommendation of the Finance and Citywide Projects Committee, and approve
a Funding Agreement between the City of Miami Beach, Florida and the Sunset Islands Property
Owners, Inc., a not- for- profit Florida corporation ( "HOA ") serving as the homeowners association
for the Sunset Islands I and II neighborhoods; with such Funding Agreement providing the
framework and terms for the HOA to cover construction costs in excess of the City's FY14/15
$200,000 Capital Budget appropriation for the Sunset Islands I and II Gate House Project
( "Project "), including specified improvements to the gate house structure located at 1356 west 29th
Street, modifications to the median, construction of a second gate house structure along the 29th
Street median, modifications to the security arms, brick pavers, landscaping and irrigation; further,
approve a Maintenance and Use Easement Agreement to provide for the HOA to operate and
maintain the gate houses following completion of the Project; and further, authorize the Mayor and
City Clerk to execute the final negotiated agreements.
PASSED AND ADOPTED this d5 day of i 2018.
ATTEST:
g/‘,
Rafael E. Granath:), Ci y C
erk
,NCO W
czzussIscsss-
Dan Gelber, ayor
I
1
MIAM
BEACH
Resolutions C7 Al
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 25, 2018
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE, AND APPROVING A
FUNDING AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDAAND
THE SUNSET ISLANDS PROPERTY OWNERS, INC., A NOT -FOR- PROFIT
FLORIDA CORPORATION SERVING AS THE HOMEOWNERS ASSOCIATION
FOR THE SUNSET ISLANDS I AND II NEIGHBORHOODS ( "HOA "); WITH SUCH
FUNDING AGREEMENT PROVIDING THE FRAMEWORK AND TERMS FOR THE
HOA TO COVER CONSTRUCTION COSTS IN EXCESS OF THE CITY'S FY 14/15
$200,000 CAPITAL BUDGET APPROPRIATION FOR THE SUNSET ISLANDS I AND
II GATE HOUSE PROJECT ( "PROJECT "), INCLUDING SPECIFIED
IMPROVEMENTS TO THE GATE HOUSE STRUCTURE LOCATED AT 1356 WEST
29TH STREET, MODIFICATIONS TO THE MEDIAN, CONSTRUCTION OF A
SECOND GATE HOUSE STRUCTURE ALONG THE 29TH STREET MEDIAN,
MODIFICATIONS TO THE SECURITY ARMS, BRICK PAVERS, LANDSCAPING,
IRRIGATION AND RELATED IMPROVEMENTS; FURTHER, APPROVING A
MAINTENANCE AND USE EASEMENT AGREEMENT TO PROVIDE FOR THE
HOA TO OPERATE AND MAINTAIN THE GATE HOUSE FOLLOWING
COMPLETION OF THE PROJECT; AND FURTHER AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE THE FINAL NEGOTIATED AGREEMENTS
RECOMMENDATION
The Administration recommends the City Commission approve the resolution.
ANALYSIS
The City of Miami Beach is the owner of the Sunset Island Guard House located at 1356 W 29
Street, Miami Beach Florida 33140 -4273 (the "Guard House "), as well as the other improvements
located in the public right of way along W 29 Street.
As part of the City's FY14/15 Capital Budget, the Mayor and City Commission appropriated funding
in the amount of $200,000 for the design, permitting, demolition of the existing Guard House,
construction of a new Guard House in the center of the entrance road, with road widening and new
gates.
Based on the Planning Department's determination, the existing Guard House building is individually
designated and listed in the Miami Beach Historic Properties Database and therefore could not be
demolished. The Sunset Islands Property Owners, Inc., the homeowners association for Sunset
Page 757 of 1464
Islands I and II (HOA) requested modifications to the original scope of work, which consist of:
renovation to the existing Guard House, including the restroom, cooling system, lighting, new roof
and the construction of a new Guard House Kiosk in the center of the entrance road (West 29 Street)
including widening of the existing median, hardscape improvements and brick pavers, conduits for the
HOAs security system, new security gates, landscaping and irrigation system ( "Project "). The design
of the modified Project is depicted in the attached concept plan (Exhibit A), with a construction cost
estimate including contingency in the amount of $462,000.
Following the City's payment of expenditures for design and related Project costs, the amount
remaining from the City Appropriation, and available for the construction of the Project, is $104,000,
which funds are insufficient to construct the Project. The HOA has offered to provide funding "HOA
Contribution" in excess of the City's available funding in an effort to collaborate with the City to
facilitate the construction of the Project, which has been outlined in the attached Sunset Island 1 & 2
— Agreement (Exhibit B). This Agreement establishes the following:
1. The City will competitively bid the project according to standard procurement requirements.
2. Prior to award of the construction contract for the Project, the City shall provide the HOA with the
opportunity to confirm its agreement to make the HOA Contribution, based upon the final bids
received by the City for the Project. Per the Agreement, the HOA Contribution must be made by
November 1, 2018.
3. HOA can request that the City make scope reductions to the Project in the event the bids exceed
the sum of City's available funding and the HOA Contribution in an amount necessary for the Project
to be completed.
4. HOA can decline to proceed with the HOA Contribution to the Project in which case the City
Administration shall, based on the lack of funding for the overall Project, reject bids, and in such
event, the City may thereafter work with the HOA to identify potential options for moving forward with
the Project, or any portion thereof, or cancel the Project.
The proposed funding Agreement outlines the process and timeline for payment of the HOA
Contribution, award of the construction contract and issuance of the Notice to Proceed (NT P) to start
construction of the Project; should the HOA wish to continue with the Project.
Also included in this package is the proposed Maintenance and Use Easement Agreement, (Exhibit
C), which establishes the parties' respective obligations with regard to maintenance of the Guard
House following completion of construction.
On June 29, 2018, the Finance and Citywide Project Committee unanimously recommended
approval of the funding Agreement and the Maintenance and Use Easement Agreement to be
executed with the Sunset Islands Property Owners, Inc., the homeowners association for Sunset
Islands I and 11.
CONCLUSION
The Administration recommends the City Commission approve the resolution.
Legislative Tracking
Capital Improvement Projects
Page 758 of 1464
ATTACHMENTS:
Description
�
Form Approved Reso
n
Exhibit A' Concept Plan
� Exhibit B - Form Approved Agreement
o Exhibit 0 - Form Approved Maintenance and Easement Agreement
Page 759 of 1464
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Page 763 of 1464
7
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Exhibit "B"
AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
SUNSET ISLANDS PROPERTY OWNERS, INC.
This Agreement is entered into this day of , 2018, by and between the
CITY OF MIAMI BEACH, FLORIDA, a municipal corporation located at 1700 Convention
Center Drive, Miami Beach, Florida 33139 (the "City "), and the SUNSET ISLANDS PROPERTY
OWNERS, INC., a non - profit Florida corporation, whose principal address is 1620 North View
Drive Miami Beach, Florida 33140 (the "HOA ").
RECITALS:
WHEREAS, the City is the owner of the Sunset Island Gate House located at 1356 W 29
Street, Miami Beach Florida 33140 -4273 (folio # 9388353583 ROW) (the "Gate House "), as well
as the other improvements located in the public right of way along W 29 Street;
WHEREAS, as part of the City's FY14/15 Capital Budget, the Mayor and City
Commission appropriated funding in the amount of $200,000 (the "City Appropriation ") for the
design, permitting, demolition of the existing Gate House and construction of a new Gate House
in the center of entrance road with road widening and new gates; and
WHEREAS, due to the historic nature of the existing Gate House, it could not be
demolished; and
WHEREAS, the HOA has requested modifications to the original scope of work; and
WHEREAS, the new scope would consists of renovations to the existing Gate House
including the restroom, cooling system, lighting, new roof and the construction of a new Gate
House Kiosk in the center of the entrance road (West 29 Street) including widening of the
existing median, hardscape improvement and brick pavers, conduits for the HOA's security
system, new security gates, landscaping and irrigation system (the "Project "); and
WHEREAS, the City Appropriation is insufficient to fund the construction of the modified
Project, which the City and the HOA believe would be beneficial in the area; and
WHEREAS, a portion of City Appropriation has been encumbered for the design,
construction administration and fees for the Project; and
WHEREAS, the design of the Project is depicted in the concept plan attached as
Exhibit "A "; and
1
Page 764 of 1464
WHEREAS, the estimated construction cost for the Project, including contingency, is
approximately $462,000; and
WHEREAS, following the City's payment of expenditures for design and related Project
costs, the amount remaining from the City Appropriation, and available for the construction of
the Project, is $104,000, which funds are insufficient to fund the construction of the Project; and
WHEREAS, subject to the terms and conditions of this Agreement, the HOA agrees to
provide funding in excess of the City Appropriation (the "HOA Contribution "), in an effort to
collaborate with the City to facilitate the construction of the Project, for the benefit of the HOA,
its residents, and the City; and
WHEREAS, the City and the HOA desire to confirm, in this Agreement, the terms agreed
to between the City and the HOA with respect to the HOA Contribution and the City's
construction of the Project.
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. Incorporation of Recitals. The above Recitals are hereby made a part of this
Agreement and expressly incorporated by reference herein.
2. Project. The City shall be responsible for designing, developing, permitting and
constructing the Project in accordance with all City procurement and applicable laws,
and the budget for the Project shall reflect such requirements. The City shall be
responsible for entering into the contract with the architect- engineer, the construction
contractor, and any ancillary professionals or other vendors required to complete the
Project and related improvements. The City's Office of Capital Improvements Projects
shall serve as the Contract Administrator.
3. Procurement of Contractor and Schedule for the Project.
a. Following the execution of this Agreement, the City shall issue a formal
competitive bid ( "Invitation to Bid" or "ITB ") for a general contractor ( "GC ") with the
requisite license and experience necessary to construct the Project. In accordance with
the City's procurement requirements, the award of the ITB shall be to the lowest
responsive, responsible bidder. The HOA shall be invited to the bid opening.
b. Before the Administration makes a recommendation to the Mayor and City
Commission with respect to the award of the ITB, the City shall provide the HOA with the
opportunity to review the pricing submitted by the lowest responsive, responsible bidder,
to permit the HOA to verify whether the proposed pricing (including a standard 10 %
contingency for covering unforeseen Project costs) is in line with the anticipated
construction cost estimates and available HOA Contribution for the Project.
c. In recognition that the City Appropriation is not sufficient to fund the Project and
that the HOA Contribution is critical to the City's ability to move forward with the Project,
as proposed, within thirty (30) days following the ITB bid opening, the HOA shall, at its
reasonable discretion, either:
2
Page 765 of 1464
1) confirm that the HOA has reviewed the bid pricing received from the
lowest, responsive, responsible bidder for the Project, and that the HOA
approves the Project and the HOA Contribution; or
2) request that the City make scope reductions to the Project, in an amount
necessary for the Project to be completed with the available funding (the
City Appropriation and HOA Contribution); or
3) decline to proceed with the HOA Contribution to the Project, in which
case the City Administration shall, based on the lack of funding for the
overall Project, reject bids, and in such event, the City may thereafter
work with the HOA to identify potential options for moving forward with the
Project, or any portion thereof, if any, or cancel the Project.
d. The City shall not proceed with the Project (or any portion thereof) until such
time as (1) the HOA confirms its agreement with respect to the Project and the HOA
Contribution; (2) the City has received the advance deposit of the HOA Contribution, as
provided in Section 4 below; and (3) the City Commission, at its sole and absolute
discretion, approves the award of a contract for construction and authorizes the
Administration to proceed with the Project (or any portion thereof). For the avoidance of
doubt, the City shall have no obligation to proceed with the Project, except as may be
authorized by the City Commission, at its sole discretion.
e. With respect to the schedule for the Project, the City anticipates that following
the issuance of the ITB, the City will execute the contract for construction and issue a
notice to proceed to the contractor to authorize the commencement of construction
activity ( "Notice to Proceed ") by January 4, 2019, at the earliest.
f. Assuming the City and HOA agree to move forward with the Project, the City
shall notify the HOA prior to the issuance of a Notice to Proceed, so that the HOA may
keep residents informed as to the commencement of construction for the Project. The
City shall, on a monthly basis, provide the HOA with an update as to the progress of
construction.
4. Payment of the HOA Contribution to the City.
The HOA shall pay the City the HOA Contribution by November 1, 2018, prior to the City
Commission's award of the contract for construction of the Project, which the City
anticipates will occur no earlier than November 14, 2018. The City shall account for the
HOA Contribution separately from its other funds, in a restricted special revenue fund,
for use solely by the City for the payment of Project costs for the design, permitting and
construction of the Project, as provided herein.
For purposes of payment of the Project costs, the City Appropriation shall be applied
first, prior to the HOA Contribution. In the event that the Project is constructed for less
than the estimated total Project cost (including, for example, if any contingency funds
remain at the conclusion of the Project), any unused portion of the HOA Contribution
shall be returned to the HOA within 60 days following (i) the issuance of a Certificate of
Occupancy for the Project and (ii) receipt of a certificate of final payment/release of all
claims from the construction contractor. In the event the Project experiences additional
3
Page 766 of 1464
Project costs in excess of the 10% contingency, the City shall diligently work with the
HOA to either identify additional funds or adjust the project scope, as necessary.
5. 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:
TO CITY:
Sunset Islands Property Owners, Inc.
Attn: , President of HOA
Guard House, Drive
Miami Beach, Florida 33140
(�)
City of Miami Beach
Attn: David Martinez, P. E.
CIP 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.
6. Governing Law and Venue. This Agreement 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 fetter 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.
7. WAIVER OF JURY TRIAL. BY ENTERING INTO THIS AGREEMENT, 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. No Assignment. Neither party may assign this Agreement. Neither this Agreement,
nor any of its terms, may be changed, modified or otherwise amended except by an
instrument in writing, signed by an authorized representative, which shall be the City
Manager (on behalf of the City), and the HOA President (on behalf of the HOA).
4
Page 767 of 1464
9. No Joint Venture. The City and HOA acknowledge and agree that they are not joint
venturers, partners, or joint owners with respect to this Agreement or the Project.
Nothing contained herein shall be construed as creating a partnership, joint venture or
similar relationship between the City and the HOA.
10. City Ownership of Right of Way. Notwithstanding the HOA Contribution to the Project,
the City retains ownership of the Project, and all public- rights -of -way and improvements
located thereon, with the exception of any security system or other personal property or
equipment the HOA may install at the Guard House structures, which security system or
other personal property or equipment shall be owned by the HOA.
11. No Third Party Beneficiaries. This Agreement is not intended to, and shall not be
construed to give, any third party (including, without limitation, any individual members of
the HOA) any rights or interests whatsoever, nor is it intended that any third party shall
be a third party beneficiary of any provisions hereof.
12. Contractor's Warranty. City shall cause for the contractor to provide a warranty for the
work, for a period of one (1) year from the date the Project is substantially completed (as
evidenced by the date on the Substantial Completion Certificate executed by the Project
Administrator). Except as provided herein, neither City nor HOA make any warranties or
guarantees with respect to the Project,
13. Insurance and Indemnity. City shall cause its construction contractor to indemnify and
hold harmless the HOA, and its officers, employees, and agents, from and against any
and all claims, suits, actions, damages or causes of actions arising from or in connection
with the construction of the Project, and for any personal injury, loss of life or damage to
property sustained in connection with the construction of the Project. In addition, as a
condition precedent to the commencement of any work, City shall cause its construction
contractor to provide proof of the following minimum levels of insurance: (1) Commercial
General Liability Insurance in an amount not less than $ 1 Million combined single limit
per occurrence for bodily injury and property damage, (2) Automobile Liability Insurance
covering all owned, non -owned and hired vehicles used in collection with the operations
of the City's contractor, in an amount not less than $1 million combined single limit per
occurrence for bodily injury and property damage, and (3) Workers' Compensation
Insurance for all employees of City's contractor as required by Florida Statutes. The
HOA shall be an additional insured on all liability coverages, except Workers'
Compensation Insurance.
14. Damage to or Destruction of the Improvements. During the construction of the
Project, the City shall cause for its construction contractor to protect the Project work
against all loss or damage of any nature, and to promptly repair any such loss or
damage prior to completion of the Project. Following the completion of the Project, any
loss or damage to the Project shall be governed by the provisions of the Maintenance
and Use Easement Agreement, attached as Exhibit "B" hereto.
15. City's Sovereign Immunity. No provision contained in this Agreement shall be
construed or deemed a waiver of City's sovereign immunity, or of the limitations set forth
in Section 768.28 of the Florida Statutes.
16. Maintenance and Use Easement. City and the HOA shall execute a "Maintenance
and Use Easement Agreement" to the Guard House area, in the form attached as
5
Page 768 of 1464
Exhibit "B" hereto, to provide for and memorialize the HOA's use of, operation, and
maintenance of the Guard House.
17. Representation on Authority of Parties /Signatories. Each person signing this
Agreement warrants and represents that he or she is duly authorized and has the legal
capacity to execute and deliver this Agreement, and that this Agreement is a valid and
legal agreement binding on such party and enforceable in accordance with its terms.
18. Effective Date. This Agreement 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).
[SIGNATURES ON FOLLOWING PAGE]
6
Page 769 of 1464
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as of the day and year first written above.
BY CITY:
Attest: CITY OF MIAMI BEACH, FLORIDA
Rafael Granado, CITY CLERK Dan Gelber, MAYOR
BY HOA:
Attest
Signature
[HOA Secretary
Print Name]
SUNSET ISLANDS PROPERTY OWNERS,
INC. -
7
Page 770 of 1464
Signature
[Name/title]
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
4."
Ct Attom
A r
ate
Exhibit "A"
Project Description and Concept Plan
8
Page 771 of 1464
Exhibit "B"
Maintenance and Use Easement Agreement
9
Page 772 of 1464
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Page 774 of 1464
This Instrument Was Prepared By
And Should be Returned To,
Raul J. Aguila, City Attorney
City of Miami Beach
1700 Convention Center Drive
4th Floor
Miami Beach, FL 33139
[For Clerk's Use Only]
EXI -IIBIT "C"
MAINTENANCE AND USE EASEMENT AGREEMENT
THIS IS A MAINTENANCE AND USE EASEMENT AGREEMENT ( "Easement ")
dated this day of , 201_, by and between the City of Miami Beach, Florida,
whose address is 1700 Convention Center Drive, Miami Beach, Florida, 33139 (hereinafter
referred to as the "Grantor" or "City ") and Sunset Islands Property Owners, Inc. ( "Grantee" or
"HOA ") (each, a "Party" and collectively, the "Parties ").
WHEREAS, the Grantor is the owner of the Gate House located at 1356 W 29 Street,
Miami Beach Florida 33140 -4273 (folio # 9388353583 ROW) (the "Gate House "), as well as the
other improvements located in the public right of way along W 29 Street, as more particularly
described in Exhibit "1" hereto (the "Easement Area"); and
WHEREAS, the Grantee serves as the homeowners association for Sunset Islands 1 and
2; and
WHEREAS, on or about , 2018, the Mayor and City Commission adopted
Resolution No. 2018- , approving an agreement between the City and the HOA for the
funding of certain improvements to the existing Gate House, and the construction of a new Gate
House Kiosk along the center median of West 29th Street ( "Kiosk "), among other specified
improvements (the "Agreement"); and
WHEREAS, Grantor has agreed to convey a non- exclusive easement to the HOA to
memorialize the IIOA's agreement to maintain, operate and use the Easement Area, including
the Gate House and the Kiosk, for purposes of providing general security guard services for the
benefit of Sunset Islands 1 and 2.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Grantor and the Grantee hereby agree as follows:
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1. Recitals. The foregoing recitals are true and correct and incorporated herein by
reference.
2. Grant of Easement; Use. Grantor hereby grants, bargains, sells and conveys to the
Grantee, its successors and assigns, a perpetual, non - exclusive easement in gross, in, on, over,
through, and across the Easement Area described on Exhibit "A" attached hereto and
incorporated herein by reference, for the operation, maintenance, repair and use of the Easement
Area for the Limited purpose of providing security guard services and management of the
structures or other elements of the entrance features thereon. The easement granted hereunder
shall be subject to all matters of record and all applicable laws, and shall be subordinate to any
public utility easement dedicated to the public, as the term "public utility" is defined in Section
177.031(7)(b), Florida Statutes, including, without limitation, the FPL easement referenced in
Exhibit "I."
3. Grantee Responsibility for Costs and Expenses. Grantee shall operate, maintain,
repair and use the Easement Area at its sole cost and expense. Grantee shall be solely
responsible for the operation and maintenance of the Gate House, Kiosk, security arms and any
related security guard services or equipment provided within the Easement Area, including,
without limitation, providing or contracting with a third -party vendor to provide security
services, security systems and software and repairs thereof, maintenance or repairs of the gate
arm and access control system, and the personal property or other equipment located within the
Easement Area, janitorial, utilities, telephone, removal of trash or other waste or debris material,
hardscape, lighting and landscaping, if any, within the Easement Area. Grantee shall maintain
the Easement area in a clean and neat condition.
In no event shall the Grantor have any responsibility whatsoever for the operation or day -
to -day maintenance or repairs of the Easement Area and the improvements included
therein, or to provide for any security guard services or management of the entrance
features within the Easement Area, including, without limitation, the operation of the
security arms, the Gate House, and Kiosk.
4. Access. Grantee shall be solely responsible for providing card readers, remote
controls, or other means of access for residents of Sunset Islands I and 2, as may be determined
by Grantee, and shall further ensure that access to the general public and emergency vehicles is
not impeded or denied (except for the reasonably limited period of time as necessary to maintain
the visitors log and /or activate the security arms).
5. Alterations to Easement Area. The Grantor shall have the right and privilege
from time to time to alter, improve, enlarge, add to, change the nature or physical characteristics,
and replace, remove or relocate any improvements provided that they are located in, upon, over,
through and across the Easement Area only, along with all rights and privileges necessary or
convenient for the full benefit and use thereof for the purposes described in the Easement,
including but not limited to the right to clear obstructions within and to the Easement Area.
Grantee shall not alter the exterior of the structures located in the Easement Area, except with the
prior written approval of the Grantor's City Manager.
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6. Responsibility for Damages. Each Party shall be responsible for damage caused
to the Easement Area, if and to the extent such damage is due to that Party's own negligence or
willful misconduct in the operation, maintenance or use of the Easement Area, or the negligence
or willful misconduct of its employees, contractors, or agents with respect to the operation,
maintenance or use of the Easement Area.
7. Insurance by Grantee. Grantee shall maintain a general liability insurance policy
with coverage sufficient to cover Grantee's liability exposure related to its operation,
maintenance or use of the Easement Area, provided, however, that such general liability policy
shall be in an amount not less than $1,000,000 combined single limit per occurrence for bodily
injury and property damage. Grantee shall cause for its third -party contractors to maintain
general liability insurance sufficient to cover its liability exposure related to the performance of
any services within the Easement Area, provided, however, that such general liability policy
shall be in an amount not less than $1,000,000 combined single limit per occurrence for bodily
injury and property damage. The City shall be named as an additional insured on such policies.
Grantee shall provide City with a certificate of insurance evidencing the City's additional insured
status upon request. Notwithstanding any provision to the contrary herein, the Grantee shall be
solely responsible for any personal property or equipment maintained within the Easement Area,
and
8. Property Insurance by Grantor; Repairs. Grantor shall insure the Gate House and
Kiosk structure as part of its master property insurance policy. In the event the Gate House and
Kiosk is damaged or destroyed by fire, windstorm or other casualty not due to Grantee's
negligence, and such damage is covered by the Grantor's insurance policy, Grantor shall, as soon
as practicable thereafter, utilize any insurance proceeds (if any) to cause such damage to be
repaired. Grantor shall have no obligation to identify additional funding for such repairs (beyond
application of insurance proceeds, if any), and any such funding appropriation, if any, shall be at
the sole and absolute discretion of the Grantor's City Commission and subject to availability of
funds. If, following any such casualty, the available insurance proceeds, if any, are insufficient
to complete the repairs, Grantee may, at its sole discretion, identify additional funds to complete
the repairs and continue the operation and use of the Easement Area. In the event the Parties
cannot mutually identify sufficient funding to complete any such repairs within 180 days
following any casualty, this Easement shall terminate, and neither Party shall have or owe any
further obligation to the other Party. Notwithstanding the provisions herein, in no event shall
Grantor insure any personal property or equipment located in the Easement Area, as Grantee
shall be solely responsible for any such personal property or equipment located in the Easement
Area.
9. Grantor's Sovereign Immunity. No provision contained in this Agreement shall
be construed or deemed a waiver of Grantor's sovereign immunity, or of the limitations set forth
in Section 768.28 of the Florida Statutes.
10. Indemnity. In consideration for this Easement, Grantee expressly agrees to
indemnify, defend, protect and hold harmless Grantor against any and all claims, losses,
damages, injuries, arising from Grantee's operation, maintenance and /or use of the Easement
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Area. However, nothing herein shall be deemed to indemnify Grantor from any liability or claim
arising out the negligence of Grantor.
11, Covenant Running with the Land. All of the benefits, burdens, easements, and
agreements contained herein shall constitute covenants running with the land, shall be binding
upon the Grantor and shall inure to the benefit of the Grantee, provided the Grantee is not in
default of the terms hereof.
12. Default; Remedies. In the event either Party fails or refuses to perform any term,
covenant, or condition of this Easement, then the non - breaching Party shall give the other
Party written notice specifying the nature of the default, and the breaching Party shall have
thirty (30) days after receipt of such notice, within which to cure the specified default;
provided, however, if the nature of such default is such that the same cannot reasonably be
cured within such thirty (30) day period, the breaching Party shall not be deemed to be in
default if, within such period, it commences a cure and thereafter diligently prosecutes the
same to completion; provided further, however, that the maximum cure period for any
default hereunder shall not exceed one hundred twenty (120) days from the date of the
initial written notice of default. Ifthe default is not cured within the applicable cure period,
then the non - breaching Party may, on written notice to the City, terminate this Agreement, and
may avail itself of any other remedies that may be available at law and in equity.
13. Governing Law. This Easement shall be governed by, construed and enforced in
accordance with the laws of the State of Florida. Venue in an action, suit or proceeding in
connection with this Easement shall be in a state court of competent jurisdiction in Miami -Dade
County, Florida. BY ENTERING INTO THIS AGREEMENT, CITY AND GRANTOR
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY
OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
14. Entire Agreement. This Easement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements,
understandings and arrangements, both oral and written, between the parties with respect thereto.
15, Notices. All notices and communications in writing required or permitted
hereunder may be delivered personally to the representatives of the Grantor and the Grantee
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 notice and communications shall be
addressed as follows:
TO CITY: City of Miami Beach
Attn: City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
Tel: 305 - 673 -7010
TO GRANTEE: Sunset Islands Property Owners, Inc.
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Attn: _, President of HOA
Guard House, Drive
Miami Beach, Florida 33140
)
Notices hereunder shall be effective if delivered by certified mail, return receipt
requested, personal delivery, courier service, evidenced by a delivery receipt or by an overnight
express delivery service addressed to the parties for whom it is intended at the place last
specified; and the place for giving of notice shall remain such until it shall have been changed by
written notice in compliance with the provisions of this paragraph.
16. No Joint Venture. It is not intended by this Easement to, and nothing contained in
this Easement shall, create any partnership, joint venture, limited liability company or other
arrangement between the Grantor and Grantee, other than that of owner and independent
contractor. No term or provision of this Easement is intended to be, or shall be, for the benefit of
any person not a party hereto, and no such other person shall have any right or cause of action
thereunder.
17, Termination. Either Party may terminate this Easement for its convenience,
upon 365 days advance written notice to the other Party.
18, Amendments. Subject to the other provisions hereof, this Easement may not be
amended or modified except by written agreement of the Grantor and the Grantee.
19. Counterpart Signatures. This Easement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument,
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Page 779 of 1464
IN WITNESS WHEREOF, each of the Parties hereto has caused this Easement to be
executed and delivered as of the date first above written.
Witnesses: CITY OF MIAMI BEACH, FLORIDA
(GRANTOR):
Print Name:
Print Name:
Attest:
Rafael Granath), City Clerk
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE)
By:
Dan Gelber, Mayor
The foregoing instrument was acknowledged before me this day of
2011 by , who is the who
is either personally known to me or who has produced as identification.
(NOTARY SEAL)
Signature of Notary Public of Florida
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
APPROVED AS TO
FORM & LANGUAGE
City Attorney Date & FOR EXECUTION
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1
Witnesses: SUNSET ISLANDS PROPERTY
OWNERS, INC. (GRANTEE):
Print Name:
Print Name:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI -DADS)
By:
Print:
Its:
The foregoing instrument was acknowledged before me this day of
2011 by , who is the who
is either personally known to me or who has produced as identification.
(NOTARY SEAL)
Signature of Notary Public of Florida
F:\ATTO \HELD \Easements \Deco Bike \Deco Bike Easement FINAL FINAL 3-23-1 1.doe
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EXHIBIT "1"
LEGAL DESCRIPTION
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SURVEYORS NOTES: