HomeMy WebLinkAboutCity of Tamarac Resolution R-2006-2181
Temp. Reso. #11098
November 1, 2006
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2006-gjj�_
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 HAMPTON HILLS COMMUNITY ASSOCIATION, INC.,
FOR STREET LIGHTING, LANDSCAPING, IRRIGATION AND
STRUCTURES TO BE CONSTRUCTED AND MAINTAINED
UPON RIGHT-OF-WAY OWNED BY THE CITY, LOCATED
ON NW 91 ST AVENUE BETWEEN THE MAIN ENTRANCE OF
THE HAMPTON HILLS SUBDIVISION AND 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, Hampton Hills Community Association, Inc., is the Home Owner's
Association of the Hampton Hills Project which is located on NW 91 st Avenue (a copy of
which is attached hereto in map form as "Exhibit 1 "); and
WHEREAS, Hampton Hills Community Association, Inc., 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 street lighting, landscaping, irrigation and structures 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
Hampton Hills Project; and
Temp. Reso. #11098
November 1, 2006
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 Hampton Hills Community Association, Inc.,
for street lighting, landscaping, irrigation and structures placed upon right-of-way owned by
the City on the Hampton Hills Project site.
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.
SECTION 2: The appropriate City Officials are hereby authorized to
accept and execute a Right -of -Way Maintenance Agreement with Hampton Hills
Community Association, Inc., for street lighting landscaping, irrigation and structures
placed upon right-of-way owned by the City on the Hampton Hills Project site (a copy of
which is attached hereto as "Exhibit 2°) located at NW 91 st Avenue between the main
entrance of the Hampton Hills Subdivision and 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. #11098
November 1, 2006
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 t1alembel ,
2006.
BETH FLANSBAUM-7ALABISCO
MAYOR
ATTEST:
tik�C �Q,L, T. Qt ECORD OF COMMISSION VOTE:
MARION SWENSON, CMC 1 MAYOR FLANSBAUM-TALABISCO
f CITY CLERK DIST 1: V/M PORTNER
DIST 2: COMM ATKINS-GRAD
DIST 3: COMM. SULTANOF
DIST 4: COMM. DRESSLER
I HEREBY CERTIFY that
I have approved this
RESOLUTION as to form.
0
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Job No.11098
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EXHIBIT 7
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Exhibit 2 TR#11098
RIGHT-OF-WAY MAINTENANCE
AGREEMENT BETWEEN THE
CITY OF TAMARAC AND THE
HAMPTON HILLS ASSOCIATION, INC.
THIS AGREEMENT dated this �_ day of , 2006 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 88th Ave., Tamarac, FL 33321, Florida (the "City") and the
HAMPTON HILLS COMMUNITY ASSOCIATION, INC., a Florida not -for -profit
corporation, with a business address of 7100 W. Camino Real, Suite 117, Boca Raton, FL
33433, Florida (the "Association"). The City and Association may be referred to
collectively as the "Parties".
RECITALS
WHEREAS, the Association desires to install, repair, and maintain ten (10)
streetlights upon right-of-way owned by the City; and the City is in agreement therewith;
and
WHEREAS, the Association desires to install, repair, and maintain landscaping
and irrigation improvements upon right-of-way owned by the City along N W 91" Avenue
between the main entrance of the Hampton Hills Subdivision and NW 57th Street; and the
City is in agreement therewith; and
WHEREAS, the City and the Association 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 Association
hereby agree as follows:
IIfi►
1. Recitals. The foregoing Recitals are hereby incorporated as if fully stated herein
by this reference.
2. Li hts. The Association shall install ten (10) streetlights proximately located
outside the Association's main entrance along Hampton Hills Blvd., (NW 91 Gt Ave.),
(hereafter "Lights"). The Lights shall be of such specifications and installed in such
location set forth in the most recently approved Hampton Hills site plan.
WPB:271068:1 1
2.1 The Association shall ensure that the Lights remain in good working order at
all reasonable times.
2.2 The obligations of the Association shall include the repair, maintenance, and.
replacement of the light poles, light fixtures, bulbs, and other items needed for the
operation of said Lights regardless of their location.
2.3 The Association shall be responsible for the energy costs associated with
operation of the Lights.
2.4 The Association'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. Landscaping. The Association shall be responsible for landscaping and irrigation
improvements ("Improvements") along the area where the Lights are installed.
3.1 The Association shall ensure that the Improvements be installed and maintained
in accordance with any and all applicable City and/or County Ordinances regarding same.
3.2 All plans and specifications related to the Improvements must be reviewed and
approved by the City.
3.3 The obligations of the Association shall include the installation, repair,
maintenance, and replacement of the Improvements along the area where the Lights are
installed and along the traffic way. Notwithstanding, all repair, maintenance, and
replacement of roads and right of ways leading to the Association's entrance shall remain
the responsibility of the City.
4. Term and Termination.
4.1 The term of this Agreement shall commence on the date it is fully executed by
both Parties and continue for a perpetual duration.
4.2 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 the Association's obligations hereunder and the Association shall
remain financially responsible for the work performed by the City.
4.3 Termination of this Agreement for cause shall include, but not be limited to,
failure of the Association to perform the services required herein.
W PB:271068:1 2
5. Insurance Requirements.
5.1 Certificates of Insurance: Evidence of the required insurance shall be filed
with the City's Risk Manager. Policies shall be issued by companies authorized to do
business under the laws of the State of Florida.
5.2 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 that event, the Association shall furnish, a renewed certificate of insurance as
proof that equal and like coverage for the balance of the period of the contract and
extension thereunder is in effect.
5.3 Commercial General Liability insurance shall cover liability, bodily injury and
property damage. Coverage must be written on an occurrence basis, with the following
limits of liability:
$1,000,000 Combined Single Limit — each occurrence
$1,000,000 Combined S Ingle Limit — general aggregate
$1,000,000 Personal Injury
5.4 Association shall have its insurer name the City of Tamarac as an additional
insured on its General Liability policy.
6. Contractor Requirements. In the event that either Party contracts with a third party
to provide the services set forth herein, (hereinafter "Contractor") any agreement with the
Contractor shall include the provisions substantially in conformity herewith:
6.1 Insurance: Contractor shall at all times during the term of this Agreement
keep and maintain in full force and effect, at contractor's sole cost and expense, insurance
of the types and amounts as set forth herein and shall name the City of Tamarac and the
Hampton Hills Property Owners' Association, Inc., as additional insureds.
6.2 Coverage is not to cease and is to remain in full force and effect (subject to
cancellation notice) until all performance required of Contractor is completed. All
policies must be endorsed to provide at least thirty (30) days' notice of cancellation
and/or restriction.
7. Indemnification. Limited to acts arising out of the performance of this Agreement
only, 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 of any third party arising out of, or by reason of, or resulting
WPB:271068:1 3
from negligent acts, errors, or omissions of the Association or it subcontractor(s), except to
the extent caused by the negligence of the indemnified party.
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. Assignments, 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.
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 examination and audit by the other party and shall be
kept for the required retention period of the Florida Public Records Act (Chapter 119,
WPB:271068:1 4
Florida Statutes) 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 Statues, 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. 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 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:
TAMARAC: John Doherty, City Engineer
6011 Nob Hill Road
Tamarac, FL 33321
Copies to: Deborah Ross, Planning and Zoning Manager
6011 Nob Hill Road
Tamarac, FL 33321
Samuel S. Goren, City Attorney
Goren,Cherof, Doody & Ezrol, P.A.
3099 East Commercial Bouleverd
Suite 200
Ft. Lauderdale, FL 33308
Association: Board of Directors
Hampton Hills Community Association, Inc.
c/o Paul Valyo
7100 W. Camino Real, Suite 117
Boca Raton, FL 33433
Copies to: Centex Homes
3301 Quantum Boulevard
First Floor
Boynton Beach, FL 33426
c/o Lewis Birnbaum, Division President
15. 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
WPB:271068:1 5
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.
16. 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.
17. Headings. Headings herein are for convenience of reference only and shall not be
considered on any interpretation of this Agreement.
18. 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.
49, Governing. This Agreement shall be governed by the laws of the State of
Florida with venue lying in Broward County, Florida.
20. 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, Florida.
21. 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.
22. Attorney's Fees. In the event that either party brings suit for enforcement of this
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.
23. 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 agreements, either written
or oral.
24. 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.
25. 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
WPB:271068:1 6
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.
26. 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 Association have executed this Agreement
by their duly authorized officers, this day of 92006.
ATTEST:
CITY OF TAMARAC
:•
Marion Swenson, CITY CLERK its
I: ' ' :Ti]i1�1�7:�•�r�1��7:�ua
BY:
OFFICE OF THE CITY ATTORNEY
WITNESS:
W PB:271068:1 7
WITNESS:
HAMPTON HILLS COMMUNITY
ASSOCIATION, INC.
BY:
its PRESIDENT
4v;'t �oleof 44yerw
STATE OF FLORIDA )
) ss:
COUNTY OF wR )
1
ON THIS -25 day of 006, before
public, personally appeared
who has produced
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.
m ;'09 ,
4pi-4
me, the undersigned notary
U rs0 3/ kn_ n ,_wn to me, or
as identification, and is
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
1011 �Nr pie �
BONNIE SIERRA
Public - State of Florida
jNotary
w -my Commission Expires Jun 23, 2009
O, �Y.•�
Commission # DD 444097
'
Bonded By National Notary Assn.
My Commission Expires:411310 9
WITNESS:
W PB:259733:1
NOTARY PUBLIC
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