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HomeMy WebLinkAboutReso 2014-2233RESOLUTION NO. 2014--2.133 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING A FIRE FLOW AGREEMENT BETWEEN CITY OF NORTH MIAMI BEACH, AND THE CITY OF SUNNY ISLES BEACH FOR GATEWAY PARK AND PARKING GARAGE, IN SUBSTANTIALLY THE SAME FORM ATTACHED HERETO AS EXHIBIT "A "; PROVIDING THE CITY MANAGER AND THE CITY ATTORNEY WITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the CITY OF SUNNY ISLES BEACH is the owner of that certain parcel of real property legally described in Exhibit "A" attached hereto and has entered into that certain design -build Agreement with 4M INVESTORS, LLC (the "DEVELOPER ") under Resolution 2011 -1735 as amended, to construct a 4 -STORY PARKING GARAGE WITH A 15,532 SQUARE FOOT BANQUET HALL PLUS PARK AND PERFORMANCE STAGE WITH 460 VISITOR CAPACITY AT 151 SUNNY ISLES BOULEVARD, (the "Building "); and WHEREAS, NORTH MIAMI BEACH owns and operates a public water system in Miami -Dade County, Florida (the "County ") and desires to provide fire flow service to CITY OF SUNNY ISLES BEACH under the terms and conditions of this Agreement (the "Agreement "); and WHEREAS, the City Commission wishes to approve the Fire Flow Agreement between City of Sunny Isles Beach and the City of North Miami Beach, in substantially the same form as the attached Exhibit "A ". NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approval of Fire Flow Agreement. The Agreement between City of Sunny Isles Beach and the City of North Miami Beach is hereby approved in substantially the same form attached hereto as Exhibit "A ". Section 2. Authorization of City Manager and City Attorney. The City Manager and City Attorney are hereby authorized to do all things necessary to effectuate the terms of this Resolution. Section 3. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this t]:�`''ay of April 2014. Page 1 of: ATTES Jane A. Hines, City Clerk, MMC APPROVED AS TO FORM ANDATUALAUFFICIENCY: Attorney Vote: 5-0 Mayor Edelcup Vice Mayor Aelion Commissioner Gatto Commissioner Levin Commissioner Scholl Moved by: &_�kpt_ Seconded by: (*-T` O Page 2 of 2 Li(Yes) (No) /(Yes) (No) (Yes) (No) (/(Yes) (No) V(Yes) (No) AGREEMENT THIS AGREEMENT, entered into this day of , 2014, by and between CITY OF SUNNY ISLES BEACH, a corporation organized under the laws of the State of Florida, hereinafter referred to as "OWNER ", and the CITY OF NORTH MIAMI BEACH, a municipal corporation, hereinafter referred to as "CITY." WITNESSETH: WHEREAS, the CITY OF SUNNY ISLES BEACH is the owner of that certain parcel of real property legally described in Exhibit "A" attached hereto and has entered into that certain design -build agreement with 4M INVESTORS, LLC (hereinafter referred to as "DEVELOPER ") under Resolution 2011 -1735 as amended, to construct a 4 -STORY PARKING GARAGE WITH A 15,532 SQUARE FOOT BANQUET HALL PLUS PARK AND PERFORMANCE STAGE WITH 460 VISITOR CAPACITY AT 151 SUNNY ISLES BOULEVARD, hereinafter referred to as "the Building," ; and WHEREAS, the CITY owns and operates a public water system in Miami -Dade County, Florida and desires to provide fire flow service to OWNER under the terms and conditions of this Agreement; and WHEREAS, as a condition precedent to DEVELOPER, Assignees, and Successors in interest obtaining a building permit for the Building, DEVELOPER must evidence reasonable assurances to Metropolitan Miami -Dade County that an adequate water supply for fire suppression will be available for the Building site in accordance with Section 2- 103 -21 of the Metropolitan Miami -Dade County Code, which defines an adequate water supply for fire suppression as "the utility system being capable of delivering not less than 3,000 GPM at 20 psi residual, with each fire hydrant being able to deliver not less than 1,000 GPM "; and WHEREAS, DEVELOPER agrees to install 825 L/F OF 12" C -900 WATER MAIN, 7 L/F OF 8" C -900 WATER MAIN AND MISCELLANEOUS PARTS & ASSEMBLIES AT 151 SUNNY ISLES BOULEVARD, hereafter referred to as the "Improvement "; and hereafter, the Building and Improvement are collectively referred to as "the Project "; and WHEREAS, this proposed Improvement is as indicated on plans submitted by DEVELOTEC, INC. and as approved by the CITY OF NORTH MIAMI BEACH PUBLIC SERVICES DEPARTMENT ( "Public Services Department ") on FEBRUARY 21, 2014; and WHEREAS, the CITY is willing to cooperate with DEVELOPER and permit DEVELOPER, to the extent the CITY has authority to do so, to construct the Improvement, provided this shall be done at the sole cost and expense of DEVELOPER without financial contribution from the CITY of any nature whatsoever; and Page 1 of 7 NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, it is agreed by and between the parties as follows: 1. That the foregoing recitals are true and correct. 2. DEVELOPER shall construct, at its own discretion, its own fire prevention system on the subject Property. DEVELOPER is providing and constructing such system, or choosing not to construct such system, based upon DEVELOPER's own knowledge and for DEVELOPER's own purposes. DEVELOPER will retain ownership and be responsible for the maintenance and operation of the fire prevention system. 3. Any additional costs incurred as a result of changes in the Improvement's design requirements made by a regulatory agency having jurisdiction shall be the responsibility of the DEVELOPER. 4. The CITY agrees to allow DEVELOPER, to the extent of the CITY's authority, to install the Improvement in the easement and/or right -of -way as noted above. Further, the CITY will allow DEVELOPER to tie the Improvement into the existing line, and within six months of completion, the CITY will provide an adequate water supply, as defined in the Metropolitan Miami -Dade County Code, to service the Building. OWNER and DEVELOPER agree that the cost and expense of construction of all consumer installations, including but not limited to appliances, pipes, valves, fixtures, shut -offs, or apparatus of every kind and nature used in connection with or forming a part of an installation for utilizing water services and extending from the CITY's water mains in a public place or easement or reserved strip or on OWNER's property, shall be that of the OWNER. In addition, the CITY agrees to use reasonable efforts to assist DEVELOPER to obtain such governmental approvals as may be necessary to construct the Improvement so long as there is no cost to the CITY and to allow OWNER to use such utility easements as the CITY controls to install the Improvement. 5. DEVELOPER agree to pay for engineering costs and all costs of installing the Improvement. The consent of the CITY to the installation of said Improvement is expressly contingent upon the CITY not incurring any expenditure for the Improvement other than routine administrative costs and subsequent costs of maintenance. 6. OWNER and DEVELOPER agree to convey to the CITY at no charge and the CITY agrees to accept the Improvement when completed and tested, provided said Improvement is constructed in compliance with the approved plans and to the utility's standards and has passed a final inspection by utility personnel. In addition, the following documents are to be submitted to and accepted by the Public Services Department: i) As -Built drawings, one (1) Mylar transparency and one (1) print certified and signed by contractor and engineer of record and meeting the as -built drawing standard of the utility; ii) Contractor's Waiver and Release of Lien; Page 2 of 7 iii) Easement Agreement, if required; iv) Absolute Bill of Sale; v) Developer's Letter of Warranty (one year); and vi) Engineer's Certificate of Completion (DERM). All documents listed above are to be submitted in a form acceptable to the CITY. Sample documents of an acceptable form are available from the Public Services Department. If the above requirements are not fully and completely complied with, the CITY retains the right to withhold any and all water service or connections to be provided to the Improvement or to disconnect any temporary water service until written acceptance of the Improvement is issued by the CITY. 7. Any water service which may be provided as an accommodation to OWNER or DEVELOPER prior to final acceptance of the Improvement is to be considered temporary and subject to disconnection at any time prior to such final acceptance. 8. After completion and acceptance by the CITY, the Improvement shall remain the sole and exclusive property of the CITY, which will have the obligation to maintain the Improvement so long as the CITY operates the existing water system. 9. The Fire Flow Demand Charge for the Building has been calculated to be One Hundred Thirty Four Thousand Four Hundred Twenty Two Dollars and Seventy Six Cents ($134,422.76). One Hundred Five Thousand Four Hundred Sixteen Dollars and Sixty Two Cents ($105,416.62) of the cost of the Improvement shall be credited against the Fire Flow Demand Charge required of the OWNER and DEVELOPER. The additional Twenty Nine Thousand Six Dollars and Fourteen Cents ($29,006.14) has been remitted prior to the issuance of a building pernut. 10. The OWNER and DEVELOPER agree, by this voluntary construction of the Improvement, to provide documentation establishing the cost of the Improvement to substantiate the above - described fire flow demand charge credit. The CITY shall accept, for the purposes of establishing the DEVELOPER'S costs, the actual costs paid for the following items as credits: (a) actual contractor or subcontractor cost for materials and installation of water main; (b) bonding and insurance costs directly attributable to water main construction; (c) permit fees for water main; (d) engineering, inspection and management costs, not to exceed fifteen percent (15 %) of the total of (a), (b) and (c) above. Items which are not included in the cost for which DEVELOPER shall receive credit include, but are not limited to, the following: (e) domestic and fire service lines, meters, detector check valves, etc., downstream of point of connection of water main; (f) permit fees for structures and other on -site facilities. In the event that the actual cost is in an amount less than the credit given by the CITY, the DEVELOPER shall be required to pay the difference between such amounts. In the event the cost is in excess of the fire flow credit, Page 3 of 7 neither the DEVELOPER nor the OWNER shall not be entitled to any future credit on this property, Building, or Improvement. 11. OWNER and DEVELOPER further agree that by the execution of this Agreement, and in consideration of the mutual benefits contained herein, the OWNER and DEVELOPER waive any and all legal claims against the CITY regarding the fire flow demand charge imposed for the Building. 12. Notwithstanding other provisions of this Agreement, it is understood by both parties that this Agreement is contingent upon the issuance of a building permit to DEVELOPER by the appropriate governmental authorities of Miami -Dade County and/or other governmental authorities and DEVELOPER's commencement of construction of the Building. Should said building permit not be obtained or construction of the Building not be commenced within 120 days from the date hereof, this Agreement may be terminated by CITY at any time thereafter upon written notice to the OWNER, provided that OWNER and/or DEVELOPER shall pay all engineering, legal or other costs, other than routine administrative costs which may have been incurred by the CITY in relation to this Agreement, up to the time of receipt of such written notice by the CITY. 13. OWNER and DEVELOPER shall hold the CITY and its officers, agents and employees harmless from all suits, claims or liabilities of any nature, including attorney's fees, costs and expenses for or on account of injuries or damages sustained by any persons or property resulting from activities or omissions of the OWNER and DEVELOPER, its agents, employees, guests or invitees related in any way to the use, maintenance, repair, or failure of operation of the services; and if judgment be rendered or settlement made requiring payment of damages by CITY, which damages are based on the activities or omissions of OWNER and DEVELOPER, its agents, employees, guests or invitees, the OWNER and DEVELOPER shall pay the same. 14. OWNER and DEVELOPER shall indemnify and hold CITY and CITY'S directors, officers, employees and agents harmless from any and all claims, including but not limited to claims for damage to property or personal injury, resulting from or in connection with the work performed or the services provided under this Agreement. Where the CITY seeks indemnification from DEVELOPER under the terms of this provision, DEVELOPER shall be responsible for any compensable damages as well as attorney's fees and court costs, except that which is the result of the gross negligence of the CITY. 15. By signing this Agreement, DEVELOPER warrants that it is a limited liability company in good standing in the State of Florida, that the person signing on DEVELOPER's behalf is authorized to do so and shall bind DEVELOPER and that execution of this Agreement shall not put DEVELOPER in breach of any other agreement, including, but not limited to, financing or security arrangements. Page 4 of 7 16. This Agreement does not create any relationship or obligation to any person or entity other than OWNER and DEVELOPER. The only relationship created between CITY and DEVELOPER is the obligations of DEVELOPER and CITY expressly set forth herein. Similarly, the only relationship created between CITY and OWNER are comprised of the obligations of OWNER and CITY expressly set forth herein. 17. OWNER and DEVELOPER understand and agree that CITY is not acting as an insurer of OWNER or DEVELOPER, or the real property or property of others on the property. CITY shall not be liable for any loss of life, personal injury or loss or damage to the real property or the property of OWNER, its employees, agents, guests or invitees. OWNER and DEVELOPER shall hold CITY and CITY's directors, officers, employees and agents harmless from any such claim. 18. If any provision of this Agreement is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and, provided that the fundamental terms and conditions of this Agreement remain legal and enforceable, the remainder of this Agreement shall remain operative and binding on the Parties. 19. This Agreement constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. The provisions of this Agreement may be modified only where mutually agreed to in writing by the parties. 20. The parties hereto agree and understand that written notice, mailed or delivered to the last known mailing address, shall constitute sufficient notice to the CITY and the DEVELOPER, addressed to the following addresses of record: CITY: To be effective on the CITY, three copies of all notices shall be sent: one to the attention of (1) Procurement Management Division, one to the (2) City Attorney's Office, and one to (3) the City Manager's Office: City of North Miami Beach, Florida 17011 N.E. 19th Ave, Suite 315 North Miami Beach, FL 33162 DEVELOPER: City of Sunny Isles Beach Attn: City Attorney and City Manager 18070 Collins Avenue 4th Floor Sunny Isles Beach, FL 33160 21. Florida law shall govern the interpretation of this Agreement, and venue shall lie in Miami -Dade County, Florida. 22. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed on the City's liability as set forth in Section 768.28, Florida Statutes. Page 5 of 7 IN WITNESS WHEREOF, the CITY OF NORTH MIAMI BEACH, CITY OF SUNNY ISLES BEACH, and 4M INVESTORS, LLC have caused this Agreement to be executed in their respective names by the proper officials, on the day and year first above written. WITNESSES: ATTEST: BY: A L JANE A. HINES, MMC CITY CLERK (SEAL) IM ATTEST: PAMELA L. LATIMORE CITY CLERK (SEAL) 4M INVESTORS LLC Em JOSEPH MILTON MANAGER & MEMBER CITY OF SUNNY ISLES BEACH Y:/ NORMAN S. EDELC MAYOR O FORM: BY:� i ! 2//, ., OTT OT CITY ATTORNEY CITY OF NORTH MIAMI BEACH M. Page 6 of 7 ANA M. GARCIA CITY MANAGER APPROVED AS TO FORM: DOTIE JOSEPH INTERIM CITY ATTORNEY EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY LOTS 2, 3, 4, 5, 6A, 6, 7, AND 8, OF SECOND REVISED PLAT OF BELLA VISTA SUBDIVISION, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 50, PAGE 76 OF THE PUBLIC RECORDS OF MIAMI -DADE COUNTY, FLORIDA, LESS THAT PORTION TAKEN BY STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN ORDER OF TAKING DATED MAY 15, 1985, IN OFFICIAL RECORDS BOOK 12512, PAGE 113 OF THE PUBLIC RECORDS OF MIAMI -DADE COUNTY, FLORIDA. Page 7of7