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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 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