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HomeMy WebLinkAboutCity of Tamarac Resolution R-2022-134 Tri-party Revocable License Agmt btw BC, Tamarac Apartment Investors and COT for Landscaping Maintenance on Rock Island ROWTemporary Resolution No. 13873 December 14, 2022 Page 1 of 5 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2022 - ISq- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA APPROVING A TRI-PARTY REVOCABLE LICENSE AGREEMENT BETWEEN BROWARD COUNTY, TAMARAC APARTMENT INVESTORS, LLC, AND THE CITY OF TAMARAC, ATTACHED AS EXHIBIT "1", TO ALLOW FOR THE ACCESS, USE, INSTALLATION AND MAINTENANCE OF LANDSCAPING WITHIN A PORTION OF THE RIGHT-OF-WAY DEDICATION OF ROCK ISLAND ROAD AND APPROVING AN AGREEMENT BETWEEN THE CITY OF TAMARAC AND TAMARAC APARTMENT INVESTORS, LLC ALLOWING THE TRANSFER OF THE MAINTENANCE OBLIGATION TO TAMARAC APARTMENT INVESTORS LLC OR ITS THIRD PARTY LANDSCAPE MAINTENANCE PROVIDER, ATTACHED AS EXHIBIT "2"; AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE THE TRI-PARTY REVOCABLE LICENSE AGREEMENT AND AGREEMENT TO MAINTAIN LANDSCAPING; PROVIDING FOR CONFLICTS; SCRIVENER'S ERRORS, SEVERABILITY; AND AN EFFECTIVE DATE. WHEREAS, Florida Statutes provide that municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal service, and exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, Article IV, Section 4.07 of the City Charter of the City of Tamarac empowers the City to adopt, amend, or repeal such ordinances and resolutions as may be required for the proper governing of the City; and WHEREAS, Section 10-4.4(F)(2), City of Tamarac Code of Ordinances, requires street trees be planted in the landscape area of public streets in conjunction with new 140691324.1 Temporary Resolution No. 13873 December 14, 2022 Page 2 of 5 construction and development; and WHEREAS, on June 5, 2019, the Planning Board approved the Board Order granting major site plan approval (with conditions) for the Bailey Square multi -family development to allow for the construction of three (3) story apartment building containing a total of one hundred and twenty (120) dwelling units in three (3) wings; and WHEREAS, Case No. 11-SP-18 for the Bailey Square multi -family development containing the New Site Development Plan reviewed under Electronic Plan Review Project No. PE20-10000001 was finalized by staff on February 21, 2021, and WHEREAS, the Landscape Plan, attached as Sheet No. LP-1.01 and approved under Electronic Plan Review Project No. PE20-10000001 as part of the New Site Development Plan, shows the installation of required street trees within a portion of the swale of the Rock Island Road right-of-way, and WHEREAS, Broward County requires the City of Tamarac and the owner ("Tamarac Apartment Investors LLC") of the property abutting the Rock Island Road right-of-way to enter into a Tri-Party Revocable License Agreement to allow for the access, use, installation, and maintenance of proposed landscaping within the Rock Island Road right- of-way as the right-of-way is owned and maintained by Broward County; and WHEREAS, the Director of Community Development recommends approval of Temporary Resolution No. 13873 to allow for the execution of the Agreements subject to the following condition(s): 1. The applicant shall submit a permanent performance bond in the form of a cash deposit in the amount of $15, 000, which is 125 % of the annual cost of maintenance 140691324.1 Temporary Resolution No. 13873 November 21, 2022 Page 3 of 5 of the required landscape improvements outlined in the Revocable License Agreement prior to obtaining a Certificate of Occupancy for the project. WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the best interest of the business owners, residents, and visitors of the City of Tamarac to authorize the appropriate City officials to execute the Tri-Party Revocable License Agreement between Broward County, Tamarac Apartment Investors LLC, and the City of Tamarac to allow for the access, use, installation and maintenance of landscaping within a portion of the right-of-way dedication of Rock Island Road and to execute an agreement to maintain landscaping between Tamarac Apartment Investors LLC and the City of Tamarac to allow the owner to enter into a written contract with a third -party landscape maintenance provider. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, THAT: Section 1. The foregoing whereas clauses are true and correct and hereby adopted as the legislative and administrative findings of the City Commission and made a specific part of this Resolution; all exhibits attached hereto are incorporated herein and made a specific part of this Resolution. Section 2. The appropriate City officials are authorized to execute the Tri-Party Revocable License Agreement between Broward County, Tamarac Apartment Investors LLC, and the City of Tamarac to allow for the access, use, and installation and maintenance of landscaping within a portion of the right-of-way dedication of Rock Island Road, attached as Exhibit "'I". 140691324.1 Temporary Resolution No. 13873 November 21, 2022 Page 4 of 5 Section 3. The appropriate City officials are authorized to execute the Landscape Maintenance Obligation Agreement between Tamarac Apartment Investors LLC and the City of Tamarac, attached as Exhibit "2". Section 4. All Resolutions or parts of Resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 5. If any clause, section, other part, or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. Section 6. Any scrivener or typographical errors that do not affect intent of this Resolution may be corrected with notice to and authorization of the City Attorney and City Manager without further process. Section 7. If any clause, section, other part, or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. Section 8. This Resolution shall become effective immediately upon its passage and adoption. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 140691324.1 Temporary Resolution No. 13873 November 21, 2022 Page 5 of 5 PASSED AND ADOPTED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA THIS DAY OF �i%JCG{" &6X— ATTEST: KIMBERLY I ILL ON, CMC CITY CLERK &4&y(�M __� MI ELLE 1 GO MAYOR RECORD OF COMMISSION VOTE MAYOR GOMEZ _tj6S DIST 1: COMM. BOLTON L� DIST 2: COMM. WRIGHTJ' DIST 3: COMM. VILLALOBOS DIST 4: COMM. DANIEL APPROVED AS TO FORM AND LEGAL SUFFICIENCY FOR THE USE AND RELIANCE OF THIS CITY OF TAMARAC ONLY. 140691324.1 EXHIBIT A LEGAL DESCRIPTION: All of Parcels “B”, “C” and “D” of THE LAKES OF CARRIAGE HILLS II, according to the plat thereof, recorded in Plat Book 123, Page 7, of the Public Records of Broward County, Florida, LESS the following describing parcel: COMMENCING at the Northeast corner of the said Plat of THE LAKES OF CARRIAGE HILLS II; THENCE South 01°30’24” East, along the east line of Parcels “D”, “C”, and “B”, a distance of 612.63 feet to the POINT OF BEGINNING of this description; THENCE continue South 01°30’24” East, along the last described course, a distance of 135.64 feet; THENCE South 89°33’56” West, along the South line of said Parcel “B”, a distance of 351.07 feet; THENCE North 45°58’14” West, a distance of 42.03 feet; THENCE North 01°30’24” West, along the West line of Parcel “B”, a distance of 106.20 feet; THENCE North 89°33’56” East, along a line parallel with and 135.62 feet North of, as measured at right angles, to the South line of said Parcel “B”, a distance of 380.51 feet to the POINT OF BEGINNING. Said lands situate, lying and being in Broward County, Florida. EXHIBIT A Page 1 of 1 LOCATION MAP Revocable License Agreement between Broward County, Tamarac Apartment Investors, LLC, and the City of Tamarac Broward County Reference No. 210106001 EXHIBIT C Revocable License Agreement between Broward County, Tamarac Apartment Investors, LLC, and the City of Tamarac for the installation of improvements within county right-of-way on Rock Island Road, just south of Bailey Road in the City of Tamarac. SCOPE OF IMPROVEMENTS: This Revocable License Agreement authorizes the installation of landscaping and irrigation improvements for approximately 540 linear feet along the east side of Rock Island Road as shown in Exhibit B, in the City of Tamarac. All work will be according to the approved plans that are on file in Broward County Highway Construction and Engineering Division’s Paving and Drainage Section. A full-sized set of plans are on file with the Broward County Highway Construction and Engineering Division under Project Reference No. 210106001. NOTES: All landscaping shall be properly installed, maintained, and fertilized in accordance with the Broward County NatureScape program and Florida-Friendly Landscaping principles. Broward County NatureScape program information can be found at: http://www.broward.org/NatureScape/Pages/Default.aspx Florida-Friendly Landscaping principles and information can be found at: http://floridayards.org EXHIBIT C Page 1 of 1 EXHIBIT D Broward County Highway Construction and Engineering Division Revocable License Agreement Minimum Maintenance Performance Requirements General Requirements Licensee hereby agrees to provide maintenance in the Revocable License Area as described herein and in accordance with all articles of this Agreement. The specifications herein are the minimum standards and do not prevent the Licensee from performing any additional measures necessary to ensure proper maintenance. The Licensee shall maintain all installed landscape, irrigation, and any decorative specialty hardscape treatments placed in the Revocable License Area as follows: Landscaping •Fertilize all vegetation on a routine timeframe to meet the requirement of each plant species. •Maintain all vegetation free from disease and harmful insects as possible. Mulch the vegetation beds and keep them free from weeds. •All mulched areas will be replenished at a minimum of once a year. Mulch should be maintained to a depth of three (3) inches. •The preferred species of mulch is shredded melaleuca or pine bark. •Cut the grass to maintain a neat and proper appearance. •Prune all plants to remove all dead or diseased parts of plants and all parts of plants which present a visual hazard or physical obstacle to the designated use of the areas. •Remove and replace all vegetation that is dead or diseased or that otherwise falls below the initial level of beautification of the Revocable License Area and ensure that such vegetation is of the same grade as specified in the original approved plans and specifications and the same size as those existing at the time of replacement. •Remove litter and illegal dumping from the Revocable License Area. •Trim all plant material, including ground cover, shrubs, plants, bases of palms and hedges, to maintain a neat and proper appearance. •Maintain shrubs at a maximum height of twenty-four (24) inches to ensure sight visibility per Florida Department of Transportation / Broward County guidelines. •Ground cover and shrub beds, mulch, and other areas must remain weed-free and all undesirable vegetation, including vines, must be removed. Trash/litter must be cleaned regularly. •Trim, prune, and thin all ground cover and shrubs to retain their natural form in proportionate size to one another. Aesthetic pruning of ground cover shall include the removal of dead and/or broken branches. •At the completion of each ground cover trimming operation, all trimmed material, along with any trash/litter within the Revocable License Area shall be removed from the site. •Monitor and control undesirable insects and ant mounds. EXHIBIT D PAGE 1 o Tree and Palm • Tree and palm tree pruning will be done in accordance with Article 11 of the Broward County Natural Resource Protection Code, Code of Ordinances. Tree-trimming will be performed by a contractor that is in possession of a Broward County tree-trimming license (minimum Class “B” license). • Maintain a clearance of 14’- 6” from grade to lowest limbs of tree over vehicular travel lanes and 7’- 0” clearance over pedestrian walkways. • Maintain travel lanes to be clear of any palm fronds, branches or debris. • Dead fronds from palm trees must be removed from the ground immediately. Sabal and Washington Palms must be thinned of dead or dying fronds twice annually. • Canopy Trees must be pruned to remove sucker growth and to maintain clear visibility between grade and a height of at least 7’- 0”. All damaged, dead, or diseased limbs resulting from weather or pests must be removed upon discovery of defective condition. • Ornamental Trees such as Cattley Guava, Ligustrum and Oleander Standards must be pruned on a semi-annual basis by thinning and shaping to maintain the desired shape of the trees. o Tree Fertilization • Canopy Trees (up to three inches (3'') caliper must be fertilized to maintain good health. • All palms must be fertilized three (3) times per year. Irrigation Routine and preventive maintenance and repair of the irrigation system includes but is not limited to the following: • Maintain irrigation in working order, including the maintenance and replacement of pumps, pipes, and sprinkler heads. • Adjust all heads for proper operation and direction to prevent spray into or across roadways, walkways, or other vehicular or pedestrian areas. • Clear grass, debris, or vegetation that may hinder the operation of the sprinkler heads. • Clear vegetation from around all valve boxes to maintain valve box visibility and access at all times. • Inspect irrigation system for clogged or improperly set nozzles and spray heads, adjust heads, and replace them as needed. • Replace broken pipes, solenoids, electric valves, rain sensor heads, and all other related parts that may negatively impact the irrigation system. • Inspect and refill rust inhibitor tank(s) to prevent the development of rust on hard surfaces impacted by irrigation system. EXHIBIT D PAGE 2 Pavers •Damage to pavers that present a visual or physical deficiency must be repaired within thirty (30) days of notification to the Licensee. •Damage to pavers that present a liability to the County must be repaired within twenty- four (24) hours of notification to the Licensee. •Paver surfaces must be maintained to meet the Americans with Disabilities Act (ADA) compliance, including no tripping hazards. •Paver surfaces must be cleaned on a routine basis by an appropriate method to prevent slippery paver surfaces. Tree Grates/Tree Root Ball/Tree Pit “Surround” Zone •Tree grates must be maintained and adjusted in a manner appropriate to prevent interference with the growth of the tree’s trunk. •Tree grates must be maintained in a manner appropriate to maintain ADA compliance on any abutting walking surface. •Damages to tree grates that present a visual or physical deficiency must be repaired within thirty (30) days of notification to the Licensee. •Damages to tree grates that present a liability to the County must be repaired within twenty-four (24) hours of notification to the Licensee. •Tree grates must be pressure washed a minimum of once per year or more frequently, when necessary. Pedestrian Lighting •Periodic maintenance of the lighting system must be conducted to ensure ongoing functionality and safety of the public. •Deficiencies including outages, excess light spillage, low lumens, fixture or pole corrosion, damage to pole and fixture, exposed wiring, and all other issues related to components that impact functionality must be repaired within twenty-four (24) hours of notification to the Licensee. EXHIBIT D PAGE 3 EXHIBIT E INSURANCE REQUIREMENTS Project: Revocable License Agreement with Tamarac Apartment Investors, LLC and City of Tamarac Agency: Highway Construction and Engineering Division CERTIFICATE HOLDER: Broward County 115 South Andrews Avenue Fort Lauderdale, Florida 33301 _________________________________ Risk Management Division TYPE OF INSURANCE ADDL INSD SUBR WVD MINIMUM LIABILITY LIMITS Each Occurrence Aggregate GENERAL LIABILITY - Broad form Commercial General Liability Premises–Operations XCU Explosion/Collapse/Underground Products/Completed Operations Hazard Contractual Insurance Broad Form Property Damage Independent Contractors Personal Injury Per Occurrence or Claims-Made: Per Occurrence Claims-Made Gen’l Aggregate Limit Applies per: Project Policy Loc. Other _______ Bodily Injury Property Damage Combined Bodily Injury and Property Damage $1,000,000 $2,000,000 Personal Injury Products & Completed Operations AUTO LIABILITY Comprehensive Form Owned Hired Non-owned Any Auto, If applicable Note: May be waived if no driving will be done in performance of services/project. Bodily Injury (each person) Bodily Injury (each accident) Property Damage Combined Bodily Injury and Property Damage $1,000,000 EXCESS LIABILITY / UMBRELLA Per Occurrence or Claims-Made: Per Occurrence Claims-Made Note: May be used to supplement minimum liability coverage requirements. WORKER’S COMPENSATION Note: U.S. Longshoremen & Harbor Workers’ Act & Jones Act is required for any activities on or about navigable water. N/A Each Accident STATUTORY LIMITS EMPLOYER’S LIABILITY Each Accident $500,000 PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) All engineering, surveying and design professionals. Each Claim: *Maximum Deductible: POLLUTION / ENVIRONMENTAL LIABILITY Each Claim: *Maximum Deductible: Installation floater is required if Builder’s Risk or Property are not carried. Note: Coverage must be “All Risk”, Completed Value. *Maximum Deductible (Wind and/or Flood): Completed Value *Maximum Deductible: Description of Operations: “Broward County” shall be listed as Certificate Holder and endorsed as an additional insured for liability, except as to Professional Liability. County shall be provided 30 days written notice of cancellation, 10 days’ notice of cancellation for non-payment. Contractors insurance shall provide primary coverage and shall not require contribution from the County, self-insurance or otherwise. Any self-insured retention (SIR) higher than the amount permitted in this Agreement must be declared to and approved by County and may require proof of financial ability to meet losses. Contractor is responsible for all coverage deductibles unless otherwise specified in the agreement. For Claims-Made policies insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of the contract of work. LANDSCAPE MAINTENANCE AGREEMENT THIS LANDSCAPE MAINTENANCE AGREEMENT (hereinafter "Agreement") is executed this 6`b day of December, 2022, by and between TAMARAC APARTMENT INVESTORS, LLC, a Florida limited liability company ("Owner") and ALL SMOOTH LAWN MAINTENANCE & LANDSCAPING, INC, a corporation existing under the laws of the State of Florida ("ALLSMOOTH")(collectively, the Owner and ALLSMOOTH shall be referred to herein as the "Parties"). WITNESSETH: WHEREAS, Owner is the fee simple owner of certain real property located within the CITY OF TAMARAC more particularly located at 6180 Rock Island Road, Tamarac, FL 33319 (the "Property"); and WHERAS, Owner has engaged ALLSMOOTH for landscape maintenance agreement in accordance with City of Tamarac Agreement HCED Ref 4210106001 RLA-2021-05, for the Legacy at Tamarac (FKA Bailey Square) ("Project"); and WHEREAS, ALLSMOOTH will be engaged to maintain the landscaping on the interior and exterior of the property, including sections of the right-of-way as required by City of Tamarac Agreement HCED Ref #210106001 RLA-2021-05, this scope includes but it is not limited to: tree trimming, lawn maintenance, hedge trimming, light trash pickup and clean up. NOW, THEREFORE, in consideration of TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged, the parties intending to be legally bound, do hereby agree as follows: 1. Recitations: The foregoing recitations are true and correct and are incorporated herein by this reference. 2. License: Subject to the terms, conditions and restrictions set forth herein, Owner hereby grants ALLSMOOTH, and ALLSMOOTH hereby accepts from Owner, a revocable license to access the Property for the sole purpose of maintaining the Landscape on the interior and exterior of the subject property. 3. Term. Release and Termination. The rights and privileges granted, made and conveyed herein ("Restrictions") shall be valid from the date of execution of this Agreement by the Parties until the date in which the Owner employs a different entity for landscape maintenance, this agreement shall automatically terminate without the consent of ALLSMOOTH ("Termination"). 4. This Agreement is a license only and is personal to ALLSMOOTH and shall not be deemed or construed to be a lease, nor coupled with an interest, nor as conveying any interest in the Property or any real property whatsoever. This License or any rights or interests created hereby may not be assigned, transferred or hypothecated, either in whole or in part, by ALLSMOOTH. This License supersedes in all respects all prior and contemporaneous oral and written negotiations, understandings and agreements between the parties with respect to the subject matter hereof. THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. Neither this License, or any notice or memorandum thereof, may be recorded among the public records of any county in the State of Florida. If any provision of this Agreement is held invalid by a court of competent jurisdiction, the remaining provisions shall nonetheless be enforceable according to their terms. All notices, requests, demands, or other communications pertaining to this License shall be in writing and shall be deemed duly given when hand delivered with a receipt, or when delivered by a recognized overnight courier service, or when delivered to the addresses as follows, or by electronic delivery to the e-mail addresses set forth below: If to Owner: ATTN:_Erick Valderrama e-mail:_ev@legacyresid'ential.com If to ALLSMOOTH: ATTN: Ismael Garcia e-mail:_ info@allsmooHawn.com This Section shall survive Termination. 5. ALLSMOOTH acknowledges and agrees that Owner shall not bear or assume any liability whatsoever resulting from or arising out of this License. Therefore, ALLSMOOTH agrees to indemnify and h6ld Owner harmless of and from any and all liabilities, claims, demands, causes of action, actions, suits, damages, judgments and expenses ("Claims") which are in any way related to or arise out of this License, the use of the Property by the ALLSMOOTH and the activities of ALLSMOOTH hereunder, and all expenses related thereto including, without limitation, court costs, reasonable attorney's fees (in trial and appellate review) and any and all costs incident thereto. This Section shall survive Termination. 6. Waiver: No waiver of any of the provisions of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted and any such waiver shall only be applicable to the specific instance in which it relates and shall not be deemed to be a continuing or future waiver. 7. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and venue for any litigation arising hereunder shall be Broward County, Florida. 8. Captions: The captions and paragraph headings contained in this Agreement are for reference and convenience only and in no way define, describe, extend or limit the scope or intent of this Agreement, nor the intent of the provisions hereto. [SIGNATURES ON FOLLOWING PAGES] 2 This Instrument prepared by: Christina Bilenki, Esq. DUNAY, MISKEL & BACKMAN, LLP 14 SE 41 Street, Suite 36 Boca Raton, FL 33432 Folio No.: 4941-12-33-0020 & 4941-12-33-0030 AGREEMENT TO MAINTAIN LANDSCAPING I_ This Agreement to Maintain Landscaping is executed this day off 2023, by and between TAMARAC APARTMENT INVESTORS, LLC a Florida limited liability company ("Owner"), and the CITY OF TAMARAC, a municipal corporation organized and existing under the laws of the State of Florida ("City"). WHEREAS, on or about the date hereof, the parties have entered m to that certain Revocable License Agreement with Broward County (the "RLA"); WHEREAS, the RLA obligates the City to perform certain Maintenance Obligations (as defined in the RLA) in the event Owner fails to timely perform such Maintenance Obligations; and WHEREAS, the parties have agreed to execute this agreement to ensure the City that Owner will perform its obligations as and when required under the RLA. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and City agree as follows: Owner, including any successor in interest, agrees to perform the Maintenance Obligations and otherwise comply with its obligations under the RLA, including without limitation: a. to enter into a written contract with a third -party landscape maintenance provider under which the third party must agree to make the Improvements (as defined in the RLA) and/or perform the Maintenance Obligations in accordance with the requirements of the RLA; b. to provide a permanent performance bond in the form of a cash deposit in the amount 125% of the cost of annual maintenance of the Improvements as provided in the attached Exhibit "A" to be held in a separate account by the City. In the event Owner fails to perform its Maintenance Obligations under the RLA, subject to providing prior notice to Owner and a reasonable opportunity to cure the failure, City shall be entitled to recover from the permanent performance bond any costs incurred by the City as a result of Owner's failure to perform under this agreement orthe RLA. Should the City draw upon the permanent performance bond, the City shall promptly notify Owner, and Owner shall promptly restore the cash deposit, as may be necessary, to the full amount; and C. to indemnify and hold harmless City from its actual damages incurred with regard to all claims arising from the failure of Owner to comply with the Owner's obligations set forth in the RLA. d. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above -written. Tamarac Apart e n e tors, LLC By: Name: R ck A . Vi 1 errgYnet Title: Vj City of Tamarac By: Name: Title: } � ! # i \ � \ \\ ) \ \\ \ \ \\ \ \ \\ \ O \ Z )\ , )\ ) E2 \qh