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HomeMy WebLinkAboutCity of Tamarac Resolution R-2009-062Temp. Reso. #11595 March 30, 2009 Page 1 of 3 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2009- �; A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE A STORMWATER EASEMENT WITH SPYGLASS CONDOMINIUM ASSOCIATION, FOR THE STORMWATER BOAT RAMP PROJECT, 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, the City Commission of the City of Tamarac desires to provide adequate boat ramp facilities to enhance access to the waterways throughout the City; and WHEREAS, the installation of a boat ramp on the north side of NW 94t" Terrace will provide safe access to the canal; and WHEREAS, Spyglass Condominium Association as owner of the developed parcel has offered the "City of Tamarac Stormwater Easement", attached hereto as Exhibit 1 "; and WHEREAS, it is the recommendation of the Director of Public Works that this easement be accepted, executed, and recorded; and 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 authorize the appropriate City officials to accept, execute, and record a "City of Tamarac Stormwater Temp. Reso. #11595 March 30, 2009 Page 2 of 3 Easement" with Spyglass Condominium Association as required for the construction of a boat ramp. 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 are incorporated herein and made specific part of this resolution. SECTION 2: The appropriate City Officials are hereby authorized to accept, execute, and record a "City of Tamarac Stormwater Easement" (attached hereto as "Exhibit 1 ") with Spyglass Condominium Association to allow legal access by the Stormwater Division and Emergency Personnel. 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 SECTION 4: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. 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. 1 Temp. Reso #11595 March 30, 2009 Page 3 of 3 SECTION 6: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this_�Zday of R! �, 2009. ATTEST: 1' MARION SWENSON, CMC CITY CLERK I HEREBY CERTIFY that I have approved this RESOLUTION as to form. L S. GOREN ATTORNEY 1 BETH FLANSBAUM TALABISCO MAYOR RECORD OF COMMISSION VOTE: MAYOR FLANSBAUM-TALABISCO L� DIST 1: COMM BUSHNELL DIST 2: VM ATKINS-GRAD r DIST 3: COMM. GLASSER DIST 4: COMM. DRESSLER c BOAT RAMP INSTALLATION AGREEMENT BETWEEN CITY OF TAMARAC AND SPYGLASS CONDO, I C. I THIS AGREEMENT dated this <-� "7 day of 2009 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 88`h Avenue, Tamarac, FL 33321 (hereinafter referred to as "CITY") And Spyglass Condo, Inc. 1, a Florida corporation, with a business address of 7100 West Commercial Boulevard Suite 107 Lauderhill Florida 33319 (hereinafter referred to as "ASSOCIATION"). CITY and ASSOCIATION may sometimes hereafter be referred to collectively as "the Parties". WITNESSETH: WHEREAS, the CITY owns and/or maintains certain public works installations and facilities throughout the CITY of Tamarac, Florida; and WHEREAS, a number of these installation sites and facilities are located on waterways within the CITY, and several of these waterways are located on or near property that belongs to various homeowners' associations; and WHEREAS, in order to effectively access and service these public works installations and facilities the CITY is seeking permission from numerous homeowners' associations to install boat ramps on their property to allow for access to the necessary waterways; and WHEREAS, the CITY is further seeking access easements from the appropriate homeowners' associations providing reasonable and efficient access to the waterways and public works facilities and installations in order to enable the CITY to properly service and maintain these sites; and WHEREAS, once the CITY has obtained permission from the various homeowners' associations to install these boat ramps, the CITY will enter into agreements with contractors to perform the necessary design and installation work; and WHEREAS, the Parties agree that it is in the best interests of the citizens and residents of the CITY for the CITY to have reasonable and efficient access to the necessary waterways in order for the CITY to properly service and maintain the public works installations and facilities located throughout the CITY. 09-Spyglass Boat Ramp Agmt/bl-lewis 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 ASSOCIATION hereby agree as follows: 1. Recitals. The foregoing "WHEREAS" clauses are hereby incorporated herein by this reference. 2. The CITY is currently maintaining and will continue to maintain the public works installations and facilities located within the CITY, including those sites located within the ASSOCIATION. 3. The ASSOCIATION agrees to provide the CITY with a reasonable location, agreeable to both Parties, where the CITY may install a boat ramp to allow for access to necessary waterways in order for the CITY to properly service and maintain the public works installations and facilities located within the ASSOCIATION. 4. The CITY shall engage an outside contractor for the design and installation of a boat ramp, and the design of said boat ramp shall be subject to the ASSOCIATION'S approval. The ASSOCIATION shall not unreasonably withhold its approval of the boat ramp design. 5. The ASSOCIATION shall grant the CITY an access easement to allow for reasonable access to the boat ramp once installed. This easement shall be formally executed by the Parties after the completion and approval of the boat ramp design. 6. The CITY shall be responsible for all recording and other costs associated with this Agreement and the subsequent easement. 7. Indemnification 7.1 The ASSOCIATION 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 the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees, sustained by the CITY or any third party arising out of, or by reason of, or resulting from any negligent acts, errors, or omissions of the ASSOCIATION or its subcontractor(s), except to the extent caused by the negligence of the CITY. The CITY agrees to be responsible to the ASSOCIATION to repair any damages caused to ASSOCIATION's property by CITY. 7.2 The parties recognize that various provisions of this Agreement, including but not necessarily limited to this Section, provide for indemnification by the CITY and that §725.06, Florida Statutes, requires a specific consideration be given therefore. The Parties therefore agree that the sum of Ten Dollars and 00/100 ($10.00), receipt of which is hereby acknowledged, is the specific consideration for such indemnities, and the providing of such indemnities is deemed to be part of the specifications with respect to the services to be provided by CONSULTANT. Furthermore, the parties understand and agree that the covenants and 2 09-Spyglass Boat Ramp Agmdbl-leMs representations relating to this indemnification provision shall survive the term of this Agreement and continue in full force and effect as to the parry's responsibility to indemnify. 7.3 Nothing herein is intended nor shall be construed to waive CITY's rights and immunities under the common law or §768.28, Florida Statutes, as amended from time to time. 8. Independent Contractors. This Agreement does not create an employee/employer relationship between the Parties. It is the intent of the Parties that CITY and ASSOCIATION 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. 9. 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. 10. Legal Representation. It is acknowledged that each party to this Agreement had the opportunity to be represented by counsel in the preparation of this 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, 11. Assi=ments. This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered, under any circumstances, by the Parties without the prior written consent of the other party. 12. 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 3 09-Spyglass Boat Ramp AgmVbl-lewis examination and audit by the other party and shall be kept for the required retention period of the Florida Public Records Act (Chapter 119, Fla. Stat.) or as may otherwise be required by law. Incomplete or incorrect entries in such books and records will be grounds for disallowance by the other party of any fees or expenses based upon such entries. 13. 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 this Agreement as required by law. 14. No Contingent Fees. The Parties warrant that they have not employed or retained any company or person, other than a bona fide employee working solely for such party, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the Parties, any fee, 'commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the CITY shall have the right to terminate the Agreement without liability at its discretion, to deduct from the contract price, or otherwise recover the full amount of such fee, commission, percentage, gift, or consideration. 15. Notice. Whenever any party desires to give notice unto 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 shall 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: CITY: Jeffrey Miller, City Manager City of Tamarac 7525 NW 88 Avenue Tamarac, Florida 33321 Telephone No. (954) 597-3515 Facsimile No. (954) 597-3520 Copies to: Jack Strain, Public Works Director City of Tamarac 6011 Nob Hill Road 33321 Telephone No. (954) 597-3734 Facsimile No. (954) 597-3710 Samuel S. Goren, City Attorney Goren, Cherof, Doody & Ezrol, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 Telephone No. (954) 771-4500 Facsimile No. (954) 771-4923 4 09-Spyglass Boat Ramp Agmt/bl-lewis ASSOCIATION: ,o, j rjl,-n�- Inc Telephone No. -1 ' -Sgl Facsimile No. (454- --) 4 l - ! 16. Binding Authority. Each person signing this Agreement on behalf of either party individually warrants that 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. 17. Exhibits. Each Exhibit referred to in this Agreement forms an essential part of this Agreement. The exhibits if not physically attached should be treated as part of this Agreement and are incorporated herein by reference. 18. Headings. Headings herein are for convenience of reference only and shall not be considered on any interpretation of this Agreement. 19. Severabilily. 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 persons 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. 20. Governing Law. This Agreement shall be governed by the laws of the State of Florida with venue lying in Broward County, Florida. 21. Disputes. Any claim, objection, or dispute arising out of the terms of this Agreement shall be litigated in the Seventeenth Judicial Circuit Court in and for Broward County. 22. 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 this Agreement, with each Party to bear its own attorney's fees and costs associated with such defense. 23. Attorney's Fees. In the event that either party brings suit for enforcement of this Agreement, each party shall bear their own attorney's fees and costs, including paralegal fees, at both the trial and appellate levels, in addition to any other remedy afforded by law, except as may otherwise be provided for in this Agreement. 24. Extent of Agreement. This Agreement together with the attached Exhibits, as amended herein above represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations or agreements, either written or oral. 5 09-Spyglass Boat Ramp Agmt/bl-lewis 25. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 26. Materiali 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. 27. 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 WHEREON, CITY and ASSOCIATION have executed this agreement by their duly authorized officers, this day of 4 _, 2009. CITY OF TAMARAC ATTEST: BY: �6a� . MAYOR BETH FLA SBAUN-TALABISCO MAKTOI�SWENSON, CITY CLERK APPROVED AS TO FORM: i B -V ^+~ FICE OF THE CITY ATTORNEY 09-Spyglass Boat Ramp Agmt/bl-lewis BY - PRESIDENT STATE OF FLORIDA ) ss: COUNTY OF1(po�d ) ON THIS 1QL,_ day of 1` public, personally appeared has produce' subscribed to the foregoing instrument and who behalf of said Association and that (s)he was duly IN WITNESS WHEREOF, I hereunto set my 2009, before me, the undersigned notary as President of personally known to m , who as idenT1r1won who to and official 614 My Commission Expires: _°M P"i THERESA JARRY MY COMMISSION # OD675126 '•'�ori Y~ EXPIRES May 26, 2011 (407) 348-0161 F�oridaNwarySarv.c leeom SSG/JGH �.__,�..._.....__.._..,.._. _. _. HA2009\050164 TAMARACWGMTSV3oat Ramp Agivement.doc 09-Spyglass Boat Ramp Agmtibl-lewis (s)he executed the same on