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Home My WebLink AboutCity of Tamarac Resolution R-2010-041Temp. Reso. #11788 March 5, 2010 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2010-_41 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO ACCEPT AND EXECUTE A RIGHT-OF-WAY MAINTENANCE AGREEMENT WITH TAMARAC JEWISH CENTER, INC. D/B/A TEMPLE BETH TORAH FOR THE INSTALLATION AND PERPETUAL MAINTENACE OF A PAVER DRIVEWAY TO BE CONSTRUCTED WITHIN THE NW 57T" STREET RIGHT-OF- WAY, ADJACENT TO THE TEMPLE BETH TORAH PROJECT SITE, LOCATED AT 9351 NW 57T" STREET; AUTHORIZING AND DIRECTING THE CITY CLERK TO RECORD SAID AGREEMENT IN THE PUBLIC RECORDS OF BROWARD COUNTY; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Tamarac Jewish Center, Inc. d/b/a Temple Beth Torah is owner of the Temple Beth Torah Project which is located 9351 NW 57"' Street (a copy of which is attached hereto in map form as "Exhibit 1 "); and WHEREAS, Tamarac Jewish Center, Inc. d/b/a Temple Beth Torah has offered a Right -of -Way Maintenance Agreement to the City of Tamarac; and WHEREAS, the developer shall hold the City harmless from any costs or obligation to restore the paver driveway as a result of any repair or maintenance to the right-of-way or infrastructure; and WHEREAS, the Director of Public Works and the Director of Utilities recommends the acceptance and execution of this Right -of -Way Maintenance Agreement for the Temple Beth Torah Project; and Temp. Reso. #11788 March 5, 2010 Page 2 WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in the best interest of the citizens and residents of the City of Tamarac to accept and execute a Right -of -Way Maintenance Agreement with Tamarac Jewish Center, Inc. d/b/a Temple Beth Torah, for the installation and perpetual maintenance of a paver driveway to be constructed within the NW 57"' Street right-of-way, adjacent to the Temple Beth Torah Project site, located at 9351 NW 57"' Street. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, THAT: SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this resolution. All exhibits attached hereto and referenced herein are incorporated and made a specific part of this Resolution. SECTION 2: The appropriate City Officials are hereby authorized to accept and execute a Right -of -Way Maintenance Agreement with Tamarac Jewish Center, Inc. d/b/a Temple Beth Torah for the installation and perpetual maintenance of a paver driveway to be constructed within the NW 57"' Street right-of-way, adjacent to the Temple Beth Torah Project site (a copy of which is attached hereto as "Exhibit 2"), located at 9351 NW 57t' Street. SECTION 3: The City Clerk is hereby authorized and directed to record said agreement in the public records of Broward County. SECTION 4: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Temp. Reso. #11788 March 5, 2010 Page 3 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: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this day of , 2010. BETH TALABISCO, MAYOR �ECORD OF COMMISSION VOTE MARION SWENSO , CMC MAYOR TALABISCO CITY CLERK DIST 1: COMM. BUSHN L DIST 2: COMM. ATKINS-GRAD t/►--� DIST 3: COMM.GLASSER DIST 4: VM. DRESSLER 1 HEREBY CERTIFY that I have approved this RESOLUTION as to form. MUEL S. GOREN CITY ATTORNEY E Temp. Reso. No. 11788 CITY OF TAMARAC scale: V..F.S PUBLIC ROREB DEPARTMENT RNCINEERINC DMSION SHEET 1 OF 1 RIGHT-OF-WAY MAINTENANCE AGREEMENT TR#11788 GAR Q i LIME BA Q BAY % y yWJbo J E > // OF TAMARAC SEC. II id SEC. I COL. W. CLUB HOUSE67 \\ W T O➢ 2 `�'� /%/ ijj%/" % CT / P 66 sr CT Q¢ y y OLF y y y y AhP %j/i A cT % a`u p, y w y V LLAS 96 (SPYGLAS /% a 6 PT y JO�p' 19 gR, 4..S /! y y ° y y y y y SpN�s POLAGDS 77 4 TERR o / 2 0[ y 3 y y y y WEDGES 6S ` I }/E`+IflGD3 3 w j x = y y y LAND_ SEC, 8" WEDGEWO011 L�N f y ro, y 62 ST y y y y y C63 T) y y W y y y y y y � BOARDWALK APTS. `u SANTA ROS DR. 61 ST 3¢ y / ¢ 61 S7 a PARADISE CT PATIO HOMES A 61 ST R m> cu I 6) Tm > PAR. DR BOARDWALK APTS. R as! 60 ST 60 ST II m F � su NORTH u STANLEY LN. /// i - / / X/ /% > w vERHosA Az 59 PI / LANDINGS PARADISE ON / W Q ¢ 59 CT g IS f C fall CYPRESS Z J n InMAINLSam ESTATES / ,—, / m 59 ST m UNADSHAV 141 i GREENS H eoR W. 59 CT j WATERS EDGE \'•��''��' \\\��\\\�\�<\ //j%// wHAMPTON cz jji 5w8 PL wHILLS w> / V.G.C. PARK 58 58 ST m m m ISUAL GRAPHICS) / 57 DR w ST Or / CATALINA w MAI LA DS U T L MILENIUM ¢ /// /j// ////// %/ // ISLES 57 LN n Q REEK P.O,D.S a CO STORAGE MIDDLE m MRA TAMARAC a ACTIVE m 57 PL g 12 SCHOOL SENIOR D JEWISH CINNAMON z CENTER a' LIVING TREE 8741-8767 57 CT 'ERGUSON CHALLENGER 57 ST RESIDENCE A A OFC. BLDG 57 ST CORP. ELEMENTARY SCHOOL WENDYS TAMARAC TAMARAC (CO RD 870) RESTAURANT CHEVRON BRANCH COMMUNIT LYONS C SITE LOCATION WALGREENS LIBRARY CENTER C❑MMERCIAL BLVD .. >.. REVISIONS . — — ..1. 1 — .q .. _. TEMPLE BETH TORAH EXHIBIT 1 na ft WINE (WEM. Pl. CITY OF TAMARAC, BROWARD COUNTY, FLORIDA ti W. ss SEC. 8, TWP. 49. RGE. 41 No Text Exhibit 2 TR#11788 RIGHT-OF-WAY MAINTENANCE AGREEMENT BETWEEN THE CITY OF TAMARAC AND TEMPLE BETH TORAH (TBT) INC. THIS AGREEMENT dated this 3rd day of March, 2010 is made by and between: THE CITY OF TAMARAC, FLORIDA, a municipal corporation organized and operating pursuant to the laws of the State of Florida, with a business address of 7525 NW 881h Avenue, Tamarac, FL 33321, Florida (the "City") and TAMARAC JEWISH CENTER, INC. d/b/a TEMPLE BETH TORAH, a Florida not -for -profit corporation, with a business address of 9101 NW 571h Street, Tamarac, Florida 33351 ("TBT"). The City and TBT may be referred to collectively as the "Parties". RECITALS WHEREAS, TBT desires to install a paver driveway along 57`h Street between the Easternmost property line of the property owned by TBT and NW 941h Avenue as depicted on the most recently approved site plan; and the City is in agreement therewith; and WHEREAS, the City and TBT desire to enter into this Agreement to set forth the rights and obligations of the Parties. NOW, THEREFORE, in consideration of the mutual terms, conditions, promises and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and TBT hereby agree as follows: "L&9dV Recitals. The foregoing Recitals are hereby incorporated as if fully stated herein by this reference. 2. Paver Driveway. TBT shall maintain that certain paver driveway along 571h Street between the Easternmost property line of the property owned by TBT and NW 94`h Avenue, (hereafter "Driveway"). The Driveway shall be of such specifications and installed in such location set forth in the most recently approved by site plan. 2.1 TBT shall ensure that the Driveway shall be maintained at all reasonable times. 2.2 The obligations of TBT shall include the repair, maintenance, and replacement of the Driveway. 2.3 TBT's obligations, as described in this Agreement, shall be in accordance with the requirements of the City's Code of Ordinance or such other state, federal or local regulations which may apply. 3. Term and Termination 3.1 The term of this agreement shall commence on the date it is fully executed by both parties and continue for a perpetual duration. 3.2 This Agreement may only be terminated for cause. If this Agreement is terminated for cause, then a thirty (30) day written notice given by the terminating Party to the other Party setting forth the breach shall be provided. If the breaching party corrects the breach within thirty (30) days after written notice of same, to the satisfaction of the terminating Party, the Agreement shall remain in full force and effect. If such breach is not corrected and improved within thirty (30) days of receipt of notice of breach, the terminating Party may terminate the Agreement. In such an event, the City, at its sole option, may perform TBT's obligations hereunder and TBT shall remain financially responsible for the work performed by the City. 3.3 Termination of this Agreement for cause shall include, but not be limited to, failure of TBT to perform the services required herein. 4. Insurance Requirements. 4.1 Certificates of Insurance: Evidence of the required insurance shall be filed with the City's Rick Manager. Policies shall be issued by companies authorized to do business under the laws of the State of Florida. 4.2 Insurance shall be in force until the obligations required to be fulfilled under the terms of the Contract are satisfied. In the event the insurance certificate provided indicated that the insurance shall terminate and lapse during the period of this contract, then in the event, TBT shall furnish, a renewed certificate of insurance as proof that equal and like coverage for the balance of the period of the contact and extension thereunder is in effect. 4.3 Commercial General Liability insurance shall cover liability, bodily injury and property damage. Coverage must be written on an occurence basis, with the following limits of liability: $1,000,000 Combined Single Limit —each occurrence $1,000,000 Combined Single Limit— each occurrence $1,000,000 Personal Injury 2 4.4 TBT shall have its insurer's name the City of Tamarac as an additional _insured on its General Liability policy. Indemnification. Limited to acts arising out of the performance of this Agreement only, TBT agrees to indemnify and hold harmless the City, its trustees, elected and appointed officers, agents, servants and employees, from and against any and all claims, demands, or causes of action of whatsoever kind or nature, and resulting losses, costs, expenses reasonable attorney's fees liabilities, damages, orders, judgments, or decree, sustained by the City of any third party arising out of, or by reason of, or resulting from negligent acts, errors, or omissions of TBT or its subcontractors(s), except to extent by the negligence of the indemnified party. 6. Independent Contractor. This agreement does not create an employee/employer relationship between the Parties. It is the intent of the Parties that the City and TBT are independent contractors under this Agreement and neither is the employee of the other for all purposes, including, but not limited to, the application of the Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Workers Compensation Act, and the State unemployment insurance law. The Parties shall each retain sole and absolute discretion in the judgment of the manner and means of carrying out their activities and responsibilities hereunder provided, further that administrative procedures applicable to services rendered under this Agreement shall be those of each individual Party. Services provided by each Party pursuant to this Agreement shall be subject to the supervision of such Party. In providing such services, neither Party nor its agents, shall act as officers, employees or agents of the other Party. The Parties agree that they are separate and independent enterprises, that each had the full opportunity to find other business that it has made its own investment in its business, and that it will utilize a high level of skill necessary to perform the work hereunder. This agreement shall not be construed as creating any joint employment relationship between the Parties and neither Party will be liable for any obligation incurred by the other Party, including, but not limited to, unpaid minimum wages and/or overtime premiums. Third Party Beneficiaries. Neither party intends that this Agreement shall directly or substantially benefit any third party by this Agreement. Therefore, the Parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either Party based upon this Agreement. The Parties expressly acknowledge that it is not their intent to create any rights or obligations in any third persons or entity under this Agreement. 8. Legal Representation. It is acknowledged that each party to this Agreement had the opportunity to be represented by counsel in the preparation of the Agreement and, accordingly, the rule that a contract shall be interpreted strictly against the party preparing same shall not apply due to the joint contribution of both Parties. 9. Assi ng ment. This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered, under any circumstances, by the Parties without prior written consent of the other party. 10. Records. Both Parties shall keep, maintain and preserve books and records and require any and all subcontractors to keep books and records as may be necessary in order to record complete and correct entries as is related to personnel hours charged to this engagement, any expenses for which the Parties expect to be reimbursed, or any other records that are related to this Agreement. Such books, accounts and records will be available at all reasonable times for examination and audit by the other party and shall be kept for the required retention period of the Florida Public Records Act (Chapter 119, Florida Statutes) or as may otherwise be required by law. Incomplete or incorrect entries in such books and records will be ground for disallowance by the other Party of any fees or expenses based upon such entries. 11. Public Records. Pursuant to Chapter 119, Florida Statutes, Florida's Public Records laws, the Parties shall maintain and make available for inspection any and all business records generated pursuant to the Agreement as required by law. 12. Notice. Whenever any Party desires to give notice to any other Party, it must be given by written notice, sent by certified United States mail, with return receipt requested, or by facsimile transmission with certification of transmission to the receiving Party addressed to the Party for whom it is intended and the remaining Party, at the places last specified, and the places for giving of notice shall remain such until they have been changed by written notice in compliance with the provisions of this section. For the present, the Parties and the City designate the following as the respective places for giving of notice: TAMARAC Jeffrey Miller, City Manager 7525 NW 88`h Avenue Tamarac, FL 33321 Copies to: John Doherty, City Engineer 6011 Nob Hill Road Tamarac, FL 33321 Samuel S. Goren, City Attorney Goren, Cherof, Doody & Ezrol, PA 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308 4 TBT: Tamarac Jewish Center 5101 NW 571h Street Tamarac, FL 33351 Attn: Executive Director Copies to: Jeffrey R. Eisensmith, PA 5561 N University Drive, #103 Coral Springs, FL 33067 13. Binding Authority. Each person signing this Agreement on behalf of either Party individually warrants the he or she has full legal power to execute this Agreement on behalf of the Party for whom he or she is signing and to bind and obligate such Party with respect to all provisions contained in this Agreement. 14. Exhibits. If an Exhibit is referred to in this agreement, said Exhibit forms an essential part of this Agreement. If the exhibit is not physically attached, it should be treated as part of this Agreement and incorporated herein by reference. 15. Headings. Headings herein are for convenience of reference only and shall not be considered on any interpretation of this Agreement. 16. Severability. If any provision of this Agreement or application thereof to any person or situation shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, and the application of such provisions to person or situations other than those as to which it shall have been held invalid or unenforceable shall not be affected thereby, and shall continue in full force and effect, and be enforced to the fullest extent permitted by law. 17. Governing Law. This Agreement shall be governed by the laws of the State of Florida with venue lying in Broward County, Florida. 18. Disputes. Any claims, objections, or dispute arising out of the terms of this Agreement shall be litigated in the Seventeenth Judicial Circuit Court in and for Broward County, Florida. 19. Joint Defense. In the event that the validity of this Agreement is challenged through legal proceedings or otherwise, the Parties agree to cooperate with each other in defense of the Agreement, with each Party to bear its own attorney's fees and costs associated with such defense. 5 20. Attorneyy s Fees. In the event that either party brings suit for enforcement of Agreement, the prevailing Party shall be entitled to attorney's fees and costs, including paralegal fees, at both the trial and appellate levels, in addition to any other remedy afforded by law. 21. Extent of Agreement. This Agreement together with the attached Exhibits, if any, as amended herein above represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations or agreement, either written or oral. 22. Multiple Counterparts. This Agreement may be executed by facsimile and/or in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 23. Materiality and Waiver. The Parties agree that each requirement, duty and obligation set forth herein is substantial and important to the formation of this Agreement and, therefore, is a material term hereof. Failure of either Party to insist upon strict performance of any provision or condition of this Agreement, or to execute any right therein contained, shall not be construed as a waiver or relinquishment for the future of any such provision, condition, or right, but the same shall remain in full force and effect. 24. Compliance with Laws. The Parties shall comply with all federal, state, and local laws, codes, ordinances, rules and regulations in performing its duties, responsibilities and obligations pursuant to this Agreement. IN WITNESS WHEREOF, City and TBT ha e exe rted this Agreement by their duly authorized officer, this �� day of , 2010. ATTEST: CITY OF TAMARAC 4fBY: 7-e --/� � Marion Swenson, CI C ERK / ,/� its �� 7'� R.4 xJ d e-- e— APPRO D AS TO FORM: B kIOIJ LAI OF OF THE CITY ATTORNEY 31 1uVA"WITX3 TAMARI BY: AAC JEWISH CENTER, INC. �lb W - A its PRESIDENT S: STATE OF FLORIDA COUNTY OF BROWARD ON THIS 3 day of mAkc N 2010, before me, the undersigned notary public, personally appeared R=ciiARD M. SCNopersonally known to me, or who has produced as identification, and is the person who subscribed to the foregoing instrument and who acknowledged that (s)he executed the same on behalf of said City of Tamarac and that (s)he was duly authorized to do so. IN WITNESS WHEREOF, I hereunto set my hand and official seal OTARV P B C ��t`1'rSTCy i—, '57mujt-Z Print or Type Name My Commission Expires 613 (i3 SOW 0-4p, Notary Public State of Florida - Ernesto L Jimenez My Commission DD895768 or �0 Expires 06/03/2013 v