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HomeMy WebLinkAboutExhibit 3FLAGSTONE ISLAND GARDENS, ID# 19402 AGREEMENT FOR WATER AND SANITARY SEWAGE FACILITIES • BETWEEN MIAMI-DADE COUNTY AND CITY OF MIAMI AND FLAGSTONE ISLAND GARDENS, LLC This instrument prepared by: Michael Suchogorski New Business Supervisor New Business Section Miami -Dade Water and Sewer Department 3575 S. LeJeune Road Miami, Florida 33146-2221 FLAGSTONE ISLAND GARDENS, ID# 19402 THIS AGREEMENT, made and entered into at Miami -Dade County, Florida, this day of , 2006 by and between Miami -Dade County, a political subdivision of the State of Florida, hereinafter designated as the "COUNTY", whose mailing address is: c/o Miami -Dade Water and Sewer Department, P.O. Box 330316, Miami, Florida 33233-031.6, and City of Miami, a municipal corporation of the State of Florida, hereinafter designated as the "CITY", whose mailing address is: c/o Laura Billberry, Director, Public Facilities, 444 S.W. 2nd Avenue, 3rd Floor, Miami, Florida 33130, and Flagstone Island Gardens, LLC, a Delaware limited liability company, hereinafter designated as the "DEVELOPER", whose mailing address is: c/o Maria Gralia, Shutts and Bowen LLP, 1500 Miami Center, 201 S. Biscayne Boulevard, Miami, Florida 33131. WITNESSETH: WHEREAS, the CITY and DEVELOPER desires water and sewer service to be rendered to property owned by the CITY and to be developed, improved, and based by the DEVELOPER, pursuant to an Agreement to Enter into Ground Lease, dated January 1, 2003 (the "Agreement to Enter into Ground Lease"), and WHEREAS, the Miami -Dade Water and Sewer Department, hereinafter designated as the "DEPARTMENT", operates the water and sewage systems owned by the COUNTY. Page 2 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 WHEREAS, as a condition of the Agreement to Enter into Ground Lease it is necessary to secure the provision of water and sewer services and, in connection therewith, the execution of this Agreement, and, WHEREAS, the CITY as owner of the Property (as set forth in Exhibit A hereto), is required to execute this Agreement, but pursuant to the terms of the Agreement to Enter into Ground Lease, is not required to take any extraordinary actions, nor to incur any expenses, both of which actions and expenses are to be assumed exclusively by DEVELOPER, except as expressly noted herein; WHEREAS, the COUNTY, the CITY and DEVELOPER wish to enter into this Agreement to set forth the terms and conditions pursuant to which the DEPARTMENT will provide water and sewer services to the Property; and WHEREAS, the CITY and DEVELOPER understand that the COUNTY'S obligations to provide water or sewer service to the Property Is contingent on compliance, by either the CITY or DEVELOPER, of the terms and conditions hereof. NOW, THEREFORE, in consideration of the mutual covenants entered into between the parties hereto to be made and performed and in consideration of the benefits to accrue to each of the respective parties, it is covenanted and agreed to as follows: 1. CITY'S PROPERTY. The CITY owns a certain tract of land in Miami -Dade County, Florida, which is legally described in Exhibit "A" attached hereto and made a part hereof, hereinafter sometimes described as the "CITY'S property". Pursuant to the Agreement to Enter into Ground Lease and in reliance upon the covenants of Page 3 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 DEVELOPER thereunder and hereunder, the CITY and DEVELOPER have has requested that the DEPARTMENT render water and sewer service to the CITY'S property and the COUNTY agrees to do so subject to terms, covenants and conditions contained herein., 2. WAIVER. No delay or failure to exercise a right under this Agreement or f any other Agreement shall impair or shall be construed to be a waiver thereof. No waiver or indulgence of any breach of this Agreement or series of breaches shall be deemed or construed as a waiver of any other breach of same or as voiding or altering any other obligation of the parties under this Agreement or any other Agreement. No order or directive given by the COUNTY or its agents shall be considered as waiving any portion of this Agreement unless done in writing by a person having actual authority to grant such waiver. No order or directive given by the CITY or its agents shall be considered as waiving any portion of this Agreement unless done in writing by a person having actual authority to grant such waiver. 3. CITY AND DEVELOPER ACKNOWLEDGMENT. The CITY and the DEVELOPER hereby acknowledge and agree that any right to connect the CITY'S property to the COUNTY'S sewer system is 'subject to the terms, covenants and conditions set forth in the Settlement Agreement between the State of Florida Department of Environmental Protection, hereinafter designated as the "DEP", and the COUNTY dated July 27, 1993, the First Amendment to Settlement Agreement between DEP and the COUNTY dated December 21, 1995, the First Partial Consent Decree and the Second and Final Partial Page 4 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 Consent Decree entered in United States of America Environmental Protection Agency (EPA) vs. Metropolitan Dade County (Case Number93-1109 CIV-Moreno), as currently in effector as amended or modified in future agreements and all other current, subsequent or future agreements, the consent order between DEP and the COUNTY filed on April 4, 2004, court orders, judgments, consent orders', consent decrees and the like entered into between the COUNTY and the United States, State of Florida and/or any other governmental entity, and all other current, subsequent or future enforcement and regulatory actions and proceedings. 4. PROVISION OF SERVICE AND CONNECTION CHARGES. The COUNTY will provide an adequate domestic water supply for the CITY'S property and will receive and dispose of sanitary sewage from the CITY'S property. The DEVELOPER shall pay water and sewer connection charges for all those units to be constructed and connected on the CITY'S property subject to the limitations specified herein. The DEVELOPER • acknowledges that, to the extent that water or sewer service will ultimately be rendered to the property by a volume customer, the DEVELOPER is a new retail user provided water or sewer service from a volume customer, and acknowledges that it is responsible for payment of connection charges; however, in the event that water or sewer is provided directly by the COUNTY, the DEVELOPER acknowledges that it is a new retail customer of the COUNTY'S and accordingly also liable far payment of connection charges. The DEVELOPER may be considered both a new retail customer and a new retail user provided service by a volume customer in the event that the COUNTY provides water Page 5 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 service to the property and a volume customer sewer service, or vice -versa. The connection charges are based on the average daily gallons for the various building units and/or use as shown on Exhibit "B" attached hereto and made apart hereof, multiplied by the applicable rates established by the COUNTY. The DEVELOPER intends to construct and connect a six hundred five (605) room hotel, two hundred twenty-three thousand five hundred (223,500) square feet of store space (dry uses only), four thousand (4,000) square feet of showroom space, seven thousand seven hundred seventy-four (7,774) square feet of food preparation space, one thousand five hundred (1,500) seats full -service • restaurants, and a one thousand three hundred (1,300) seat banquet hall. Therefore, the agreed total average daily gallonage is one hundred eighty-three thousand four hundred sixty-two (183,462) gallons, resulting in combined water and sewer connection charges in the amount of one million two hundred eighty-two thousand three hundred ninety-nine dollars and thirty-eight cents ($1,282,399.38). However, water and sewer connection charges shall be calculated at the rates in effect at the time of actual connection to the COUNTY'S water and sewer systems and shall be paid by the DEVELOPER prior to the DEPARTMENT'S installation of a water meter and/or the rendition of sewer service to the CITY'S property. The DEPARTMENT'S current connection charge rates are one dollar and thirty-nine cents ($1.39) and five dollars and sixty cents ($5.60) per gallon per day for water and sewer, respectively. The water and sewer connection charge rates are subject to revision at any time. The CITY understands that, in the event that this sum is unpaid, the COUNTY has the right to refuse service to the property, discontinue service to the property, and/or lien the property, and the CITY expressly waives any rights or defenses it Page 6 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 may have in opposition to the preceeding COUNTY actions, including but not limited to COUNTY actions to enforce or foreclose any such lien. Specification of the preceding remedies shall not serve as a limit on or waiver of any other rights or remedies the COUNTY may have in the event such fees are unpaid; these COUNTY rights and remedies may be exercised collectively or individually, in the sole discretion of the COUNTY. 5. OTHER USES ON THE PROPERTY. if the DEVELOPER constructs buildings other than those outlined in paragraph 4 above, or otherwise changes the use of structures built such that paragraph 4 is no longer an accurate description of the uses at the CITY'S property, the COUNTY shall determine if additional capacity is needed, as calculated using Exhibit "B" attached hereto. If additional capacity is required, connection charges, computed at prevailing rates, capacity allocation, if available, and construction connection charges, if any, shall be required by the DEVELOPER. If requested by the DEPARTMENT, the DEVELOPER shall provide the COUNTY a list of all tenants and building units and/or use prior to the installation of any water meters by the COUNTY for the CITY'S property. 6. POINTS OF CONNECTION. The COUNTY owns and operates twelve (12) inch water mains located within the CITY'S property and in Mc Arthur Causeway, from which the DEVELOPER shall connect and install minimum twelve (12) inch diameter water mains within the CITY'S property as required to abut and provide service to all portions of the CITY'S property and development therein, in looped system with two (2) points of Page7of31 FLAGSTONE ISLAND GARDENS, ID# 19402 connection. The COUNTY also owns and operates eight (8) and ten (10) inch gravity sewer mains abutting the CITY'S property, from which the DEVELOPER shall connect and install eight (8) inch minimum diameter gravity sewer mains within the CITY'S property as required to abut and serve all portions of the CITY'S property and development, therein, provided that there is sufficient depth and that there are no obstacles which would preclude construction of the sewer. Other points of connection may be established subject to approval of the DEPARTMENT. 7. REMOVAL/RELOCATION OF FACILITIES. The DEVELOPER hereby acknowledges and agrees that any existing COUNTY water and/or sewer facilities and all appurtenances including fire hydrants within the CITY'S property that will conflict with proposed development must be removed and/or relocated, and all easements associated with said facilities vacated and/or relocated. Said relocation and/or removal of facilities shall be performed by or for the DEVELOPER in accordance with plans and specifications to be approved by the COUNTY and in such a manner that there will be no interruption of services to the COUNTY'S existing customers. All costs incurred shall be borne solely by the DEVELOPER. The removal and/or relocation of certain water and/or sewer facilities and vacating and/or relocating of associated easements are conditions precedent to the issuance of water and sewer verification forms for those proposed buildings that conflict with said water and/or sewer facilities. 8. EMERGENCY GENERATOR AND GENERATOR HOUSING. The Page 8 of 31 FLAGSTONE ISLAND GARDENS, 1D# 19402 DEVELOPER hereby agrees to construct on the site of the COUNTY'S Sewage Pumping Station Number 1203 (PS 1203) a standby emergency generator housing, and install permanently therein the portable generator previously provided to the COUNTY by the CITY for PS 1203, connect it to said PS 1203, and thereby function as the standby emergency generator for PS 1203. It shall be the DEVELOPER'S sole responsibility, with assistance from the CITY, as applicable, to obtain all required governmental approvals for the design, construction, installation and operation of said generator facilities, including but not limited to final zoning resolution, permits, and building and inspection approvals. The cost of design, construction, installation, and all appurtenances fora complete installation of the generator facilities shall be the sole responsibility of the DEVELOPER. The construction and installation of the generator facilities shall be performed by or for the DEVELOPER in accordance with plansand specifications to be approved by the DEPARTMENT and the CITY and in such a manner that there will be no interruption of services to the COUNTY'S existing customers. Final zoning resolution and approvals from all building officials, and the construction, installation, completion, and conveyance to the COUNTY of said generator facilities is a condition precedent to any duty of the COUNTY to install water meters and to provide water and/or sewer service for the -CITY'S property. 9. DESIGN AND CONSTRUCTION OF FACILITIES. The DEVELOPER, at its own cost and expense, shall cause to be designed, constructed and installed all of the necessary water and sewer facilities provided for in this Agreement unless otherwise specified. The facilities shall include any and all water mains, valves, fittings, fire hydrants, firelines, Page 9of31 FLAGSTONE ISLAND GARDENS, ID# 19402 service connections, service lines, shutoffs, meter boxes, air release valves, emergency generator and generator housing, and all appurtenances thereto for a complete installation. The final design and construction of the facilities shall meet the requirements set forth in the latest revision of the DEPARTMENT'S "Rules and Regulations for Water and Sewer Service", shall be in accordance with the latest revision of the DEPARTMENT'S "Design and Construction Standard Specifications and Details", and shall be subject to approval by the DEPARTMENT and the CITY. 10. INSPECTION. The COUNTY and the CITY shall have the right but not the obligation to make engineering inspections of all the construction work performed by the DEVELOPER under the terms of this Agreement including private facilities not to be conveyed to the COUNTY. Such inspections shall not be construed to constitute any guarantees on the parts of the COUNTY or the CITY as to the quality and condition of materials and workmanship. Any inspections by the DEPARTMENT or the CITY, as applicable, shall not relieve DEVELOPER of responsibility for the quality and condition of materials and workmanship. 11. TESTS. During construction and at the time when various tests are required, the COUNTY'S engineer or its authorized representative, together with the CITY'S engineer or its authorized representative, and DEVELOPER'S engineer and contractor, shall jointly be present to witness tests for determination of conformance with approved Page 10of31 FLAGSTONE ISLAND GARDENS, ID# 19402 plans and specifications. The DEVELOPER shall notify the COUNTY a minimum of twenty-four (24). hours in advance of the tests. 12. CONSTRUCTION MEETINGS. The COUNTY reserves the right to schedule construction meetings with the CITY'S representatives (Engineer, Project Manager, Construction Superintendent and others) and the DEVELOPER'S representatives (Engineer, Project Manager, Construction Superintendent and others) at a place designed by the COUNTY with respect to project related matters upon twenty-four (24) hours notice. The CITY reserves the right to schedule construction meetings with DEVELOPER'S representatives (Engineer, Project Manager, Construction Superintendent and others) at a place designed by the CITY with respect to project related matters upon twenty-four (24) hours notice. The COUNTY shall make reasonable efforts to be available for meetings requested by the CITY. 13. SUBCONTRACTORS AND CONSULTANTS. The COUNTY and the CITY reserve their respective rights, at any time, to bar any subcontractor or consultant employed by the DEVELOPER from engaging in any sort of work or activity related to this Agreement, if such be in the interests of the COUNTY or the CITY, as applicable. In the event the COUNTY or the CITY.rejects any subcontractor or consultant, said subcontractor or consultant will immediately cease work on anything related to this Agreement. The DEVELOPER shall not be entitled to compensation for any monies previously paid to any Page 11 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 subcontractor or consultant if said subcontractor or consultant is rejected by the COUNTY or the CITY, as applicable. 14. COMPLIANCE WITH ALL LAWS. The DEVELOPER, at its own cost and expense, shall comply with all applicable laws, statutes, rules, and ordinances in carrying out the activities contemplated herein. 15. APPROVALS AND PERMITS. The DEVELOPER shall be fully responsible for obtaining all required approvals from all appropriate governmental and regulatory agencies and all necessary permits for all facilities contemplated in this Agreement. DEVELOPER may request such information and assistance from the CITY as necessary and as are contemplated by the Agreement to Enter into Ground Lease in connection -with required approvals for all facilities contemplated by this Agreement. Notwithstanding anything else contained herein to the contrary, this Agreement shall not constitute or be interpreted as a waiver of any requirements of any other agency of Miami -Dade County and the City of Miami, and/or any requirements of the Code of Miami -Dade County and the Code of the City of Miami, as amended. DEVELOPER is responsible for obtaining all permits as may be required for the work contemplated herein pursuant to the Code of Miami -Dade County and the Code of the City of Miami, as amended. 16, COUNTY AS PERMITTEE. Certain federal, state and county agencies, including but not limited to the State of Florida Department of Transportation, the South Florida Water Management District, the U.S. Army Corps of Engineers and the Florida East Page 12 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 Coast Railroad may require that the COUNTY and/or the CITY, as applicable, be named as permittee for certain construction activities even though the DEVELOPER'S contractor will actually perform the work. To insure that the COUNTY and the CITY will incur no costs or liability as a result of being named permittee on such permits, the DEVELOPER shall provide sufficient security as acceptable to the COUNTY and the CITY which shall indemnify and protect the COUNTY and the CITY from all claims, actions, judgments, liability, loss, cost and expense, including reasonable attorney's fees, related to work performed by the DEVELOPER pursuant to such permits. The security shall be furnished prior to the start of construction and shall be in an amount equal to the COUNTY'S cost estimate for the permit work. The DEVELOPER shall have sixty (60) days to resolve any claims by a perrnittor. Otherwise, the DEPARTMENT and/or the CITY, as applicable shall be entitled to pay said claims from the security. The DEVELOPER shall be liable for all costs in excess of the security. 17. WATER SERVICE LINES. Any water service lines two (2) inches or less in diameter that are required for the CITY'S property which will be directly connected to existing mains owned by the COUNTY shall be installed by COUNTY personnel only. The DEVELOPER hereby agrees to pay to the COUNTY its standard water service line installation charge, permit fees and service fees prior to any such installation. 18. OWNERSHIP OF WATER METER. The COUNTY shall own and install the required water meter as a part of any water service installation. Ownership by the Page 13of31• FLAGSTONE ISLAND GARDENS, ID# 19402 COUNTY shall terminate at the outlet side of each water meter. The DEVELOPER shall pay all applicable installation fees. 19. TREATMENT AND TRANSMISSION CAPACITY. In addition to the covenants and conditions set forth herein, water and sewer service to be rendered by the COUNTY is subject to the following; a. issuance of a valid operation permit by the State of Florida for the COUNTY'S sewage treatment facility serving the CITY'S property which allows additional connections, b. sufficient available capacity in the COUNTY'S sewage system and connection approval, as specified in paragraph three (3) herein, c. available water supply for the COUNTY. d. available water treatment and transmission capacity by the COUNTY. However, in no event will the COUNTY be obligated to supply any more water or sewage treatment capacity in any one year than. is called for by the building connection schedule attached hereto and made a part hereof as Exhibit "C".. Any variation from said connection schedule which results in increased yearly demand on the water resources or sewage treatment facility capacity of the COUNTY not specifically provided for in Exhibit "C" shall be subject to the written approval and consent of the DEPARTMENT and shall be dependent on the availability of the water resource and the various restrictions placed on the supply of water or the disposal of sewage by local, state and federal government agencies and the physical limitations on the COUNTY'S supply and treatment Page 14 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 capacity. If either the DEVELOPER or the CITY, as applicable, does not utilize the yearly amount of water or sewage treatment facility allocation specified in Exhibit "C", said amount will be available either the DEVELOPER or the CITY, as applicable, in the next calendar year subject to the limitations and provisions specified herein. 20. ALLOCATION OF CAPACITY. The COUNTY agrees to include the aforesaid allocation in its regional water supply, production and transmission facilities and regional sanitary sewer system, once the DEVELOPER is granted necessary sewer allocation, as specified in paragraph three (3) hereinabove. However, it is mutually agreed and understood by the COUNTY, the CITY, and the DEVELOPER that the allocation of capacity by the COUNTY does not guarantee the ability of the COUNTY to supply water for the CITY'S property or the ability to receive and dispose of sewage originating from the CITY'S property. Capacity allocation is subject to local, state and federal agencies and other regulatory bodies having jurisdiction. In connection therewith, the DEVELOPER agrees that the COUNTY shall not be liable or in anyway responsible for any costs, claims or losses incurred by the DEVELOPER as a result of actions by regulatory bodies, which are related to capacity allocation. 21. FACILITIES EASEMENTS. If the facilities contemplated herein or any portion thereof are installed within private property "outside of public right-of-way, the facilities shall be installed in the center of a twelve (12) foot wide easement for water facilities and fifteen (15) foot wide easement for sewer facilities. Both require a twenty-five Page 15 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 (25) foot minimum vertical clearance above the finished grade. The DEPARTMENT shall have twenty-four (24) hour access to the easement for emergency purposes. If the facilities are not located in platted easements, then easements shall be granted to the COUNTY by the DEVELOPER and/or the CITY, as necessary, prior to the COUNTY'S installation of a water meter and/or the rendition of sewer service to the C1TY'S property. 22. CONVEYANCE OF TITLE. Conveyance of all easements shall be by separate instruments in recordable form as approved by the COUNTY and shall be accompanied by a written opinion of title by an attorney licensed to practice law in the State of Florida, which states that the CITY is the owner of the property interest to be conveyed, subject only to liens, encumbrances, other easements, and restrictions, including the Agreement to Enter Into Ground Lease and certain easements.with DEVELOPER, as are acceptable to the COUNTY, The opinion shall also state that upon execution by the CITY and DEVELOPER, a valid and enforceable easement will be vested to the COUNTY. The DEVELOPER shall pay for all recording fees and for all documentary stamps. The CITY shall convey to the COUNTY fee simple title, and DEVELOPER shall acknowledge such title conveyance, to the property on which the sewage pumping station emergency generator, to be owned by the COUNTY, is situated, subject only to title exceptions and restrictions that are acceptable to the COUNTY. The land so conveyed shall be sufficient for ownership and proper operation by the COUNTY of said sewage pumping station emergency generator, The details for all conveyances are specified hereinabove. Failure of the CITY and/or DEVELOPER, as applicable, to provide proper conveyances and Page16of31 FLAGSTONE ISLAND GARDENS, ID# 19402 acknowledgements shall be cause for the COUNTY to refuse to render service to the CITY'S property. 23. DRAWINGS AND CONVEYANCE DOCUMENTS. Following completion of the water and/or sewer facilities contemplated herein for COUNTY ownership, the COUNTY shall provide conveyance documents, which may include bills of sale, releases of lien, grants of easement and warranty deed for execution by the CITY and/or the DEVELOPER, as applicable. The properly executed documents shall be delivered to and accepted by the COUNTY prior to the rendition of water and/or sewer service by the COUNTY. The DEVELOPER shall pay, for all recording fees and for all documentary stamps. These conveyances shall be accompanied by copies 'of paid bills and/or lien waivers, releases, or satisfactions from all persons who performed work on the CITY'S property and all persons who incorporate materials into the property, together with a breakdown of the actual cost of said facilities. Concurrently, the DEVELOPER shall furnish each of the COUNTY and the CITY with: one (1) set of mylar as -built drawings showing specific locations and depths among other things, of all facilities as located by a licensed surveyor, along with four (4) prints of the as -built drawings which have been sealed by a surveyor and certified by the engineer of record. Three (3) sets of the appropriate manuals for operation of any sewage pumping station emergency generator and other mechanical and electrical equipment to be owned by the COUNTY along with three (3) certified surveys for the sewage pumping station emergency generator site, after completion, shall also be included. Approval by the COUNTY.of all required conveyance documents, drawings and Page 17 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 survey specified herein shall constitute final acceptance by the COUNTY of said facilities. After final acceptance, the facilities shalt remain at all times the sole, complete, and exclusive property of the COUNTY and under the exclusive control and operation of the COUNTY. 24. WARRANTY AND MAINTENANCE BOND. The DEVELOPER warrants to the COUNTY that the water and sewer facilities to be owned by the COUNTY shall be free' from defects in materials and workmanship for a period of one (1) year from final acceptance by the COUNTY. Simultaneously with the conveyance of the water and/or sewer facilities, the DEVELOPER shall deliver to the COUNTY an executed maintenance bond, which guarantees the warranty. If it becomes necessary to repair and/or replace any of the facilities during the initial one (1) year period, then the warranty as to those items repaired and/or replaced shall continue to remain in effect for an additional period of one (1) year from the date of final acceptance by the COUNTY of those repairs and/or replacement. The bond shall be in the amount equal to the sum of those portions of the actual cost of construction of said facilities as follows: Types of Facilities Percentage of Actual • Construction Cost Water mains 25 Gravity sewers 50 Emergency generator and 100 housing Page 18 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 The bonds shall have as the surety thereon only such surety company as is acceptable to the COUNTY and the CITY and which is authorized to write bonds of such character and amount under the laws of the State of Florida. A surety company must have a Best's Key Rating Guide General Policyholder's Rating of "A" or better and a Financial Category of Class "V" or better or be acceptable to the COUNTY. •The attorney -in -fact or other officer who signs a bond must file with such bonds a certified copy of his power -of -attorney authorizing him to do so. The Maintenance Bond may be written with the DEVELOPER'S contractor as "Principal" and the CITY, the DEVELOPER and the COUNTY as "Co - obligees". In the alternative, the DEVELOPER may be named as "Principal" and the COUNTY as "Obligee". The Maintenance Bond shall remain in force for one (1) year following the date of final acceptance by the COUNTY of the work done pursuant to this Agreement to protect the COUNTY against losses resulting from any and all defects in materials or improper performance of work. if there is no building construction underway within the CITY'S property at the time of conveyance, the COUNTY shall have the right to require that the term of the Maintenance Bond be extended for a period not to exceed an additional two (2) years. Upon demand by the COUNTY, the DEVELOPER shall cause to be corrected all such defects which are discovered within the warranty period or periods as set forth above, failing which the COUNTY shall make such repairs and/or replacements of defective work and/or materials and the DEVELOPER 'and/or its Surety shall be liable to the COUNTY for all costs arising therefrom. The DEVELOPER also warrants that it shall be solely responsible for the repair of any damages to said facilities caused by persons in its employment. Page 19 of 31 • FLAGSTONE ISLAND GARDENS, ID# 19402 25. LIABILITIES, DAMAGES AND ACCIDENTS. The DEVELOPER shall assume and be responsible for, and shall indemnify and save harmless the COUNTY and the CITY against ail claims and demands of all parties whatsoever for damages or for compensation for injuries or accidents to persons, animals and materials due, or claimed to be due, either directly or indirectly, to the DEVELOPER'S operations or to the act or omission of the DEVELOPER, its agents, or workers, until the final acceptance by the COUNTY of the generator facilities on the PS 1203 site. The DEVELOPER shall.pay all judgments obtained by reasons of accidents, injuries or damages or of infringements of patents as specified in suit or suits against .the 'COUNTY and/or the CITY, as applicable, including all legal costs, court expenses and other like expenses and the CITY shall have the right to join in the defense of such suits: The DEVELOPER shall store materials and shall be responsible for and shall maintain partly or wholly finished work during the continuance of this Agreement and until the final acceptance by the COUNTY of the generator facilities on the PS 1203 site. Should any material or Work, in part or in whole, be lost, damaged or destroyed by any cause or means whatsoever, the DEVELOPER shall satisfactorily repair and replace the same at its own cost. 26. INSURANCE. Prior to commencement of work on the COUNTY'S PS 1203 site, the DEVELOPER must obtain all insurance required under this Section and submit same to the COUNTY and to the CITY for their respective approvals. All insurance shall be maintained until work within the COUNTY'S Sewage Pumping Station Number 1203 Page 20 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 has been completed and conveyed to the COUNTY by the CITY and by the DEVELOPER, and accepted by the COUNTY. The DEVELOPER shall furnish to the COUNTY'S Risk Management Division Certificate(s) of Insurance which clearly indicate that the DEVELOPER has obtained the insurance coverage required in paragraphs a, b, c and d herein below. No modifications or.change in insurance shall be made without thirty (30) day written advance notices to Miami -Dade County, c/o the Director of Risk Management Division. a. Workers' Compensation Insurance, as required by Chapter 440, Florida Statutes, b. Public Liability Insurance — on a Comprehensive basis, in an amount not less than five hundred thousand dollars ($500,000.00) per occurrence for Bodily Injury and Property Damage combined. Policy must be endorsed to include Broad Form Property coverage. Insurance shall include coverage for Explosion, Collapse and Underground Hazards, c. Contractual Liability Insurance — covering all liability arising out of the terms of the Agreement, d. Automobile Liability insurance — covering all owned, non -owned and hired vehicles used in connection with the work, in an amount not less than five hundred thousand dollars ($500,000.00) per occurrence for Bodily Injury and Property Damage combined. Al! insurance policies required above shall be issued in companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: The company must be rated no Tess than "A" Page 21 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 management, and no less than "CLASS X" as to strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey. The DEVELOPER shall furnish Certificates of Insurance to the COUNTY prior to commencing any operations under this Agreement within the COUNTY'S Sewage Pumping Station Number 1203 site, which certificates shall clearly indicate that the DEVELOPER has obtained insurance in the type, amount and classifications in strict compliance with this Section. If requested by the COUNTY, the CITY shall furnish its letter of self-insurance to the COUNTY'S Risk Management Division. The DEVELOPER shall furnish to the CITY's Risk Management Director such insurance coverage's and, in such amounts as indicated above. The DEVELOPER shall furnish Certificates of Insurance to the CITY'S Risk Management Director prior to commencing any operations under this Agreement, which certificates shall clearly indicate that the DEVELOPER has obtained insurance in the type(s), amounts(s), and classifications(s) in strict compliance with this Section. 27. TERM OF AGREEMENT. The DEVELOPER, the CITY and the COUNTY recognize that time is of the essence and that this Agreement shall be deemed null and void and unenforceable if the DEVELOPER fails to comply with any of the following conditions, where applicable: a. After execution of this Agreement, work on the water and/or sewer facilities shall commence within one hundred eighty (180) days from the execution date. Work shall be considered to have commenced and be in active progress Page 22 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 when engineering drawings are submitted to the DEPARTMENT for review and approval, and, upon the DEPARTMENT'S issuance of said approval, a full complement of workmen and equipment is present at the site to diligently incorporate materials and equipment into the construction of the water and/or sewer facilities throughout the day on each full working day, weather permitting. b. Once the DEVELOPER commences work on the water and/or sewer facilities, said work cannot be suspended, abandoned, or not in active progress for a period exceeding one hundred eighty (180) days. c. The remedies specified herein are cumulative with and supplemental to any other rights which the COUNTY and/or the CITY may have pursuant to the law or any other provision of this agreement. 28. INDEMNIFICATION CLAUSE. The DEVELOPER shall indemnify and hold harmless the COUNTY and the CITY, and their respective officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorney's fees and costs of defense, which the COUNTY and/or the CITY, as applicable, or their respective officers, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this Agreement by the DEVELOPER or its employees, agents, servants, partners, principals, contractors and/or subcontractors. The DEVELOPER shall pay all claims and losses in connection therewith and shall Page 23 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 investigate and defend all claims, suits or actions of any kind or nature in the name of the COUNTY andlor the CITY, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon. The DEVELOPER expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the DEVELOPER shall in no way limit the responsibility to indemnify, keep and save harmless and defend the COUNTY, the CITY or their respective officers, employees, agents and instrumentalities as herein provided. 29. FORCE MAJEURE. Should either party be prevented from performing any obligations herein, including but not limited to water and/or sewer service, due to or resulting from a forcemajeure or inevitable accident or occurrence, such party shall be excused from performance. As used herein, force majeure shall mean an act of God which includes but is not limited to sudden, unexpected or extraordinary forces of nature such as floods, washouts, storms, hurricanes, fires, earthquakes, landslides, epidemics, explosions or other forces of nature. inevitable accidents or occurrences shall mean those which are unpreventable by any party and shall include but not be Limited to strikes, lockouts, other industrial disturbances, wars, blockades, acts of public enemies, insurrections, riots, federal, state, county and local governmental restraints and restrictions, military action, civil disturbances, explosions, conditions in federal, state, county and local permits, bid protests, manufacturing and delivery delays, unknown or unanticipated soil, water or ground conditions and cave-ins, or otherwise, and other causes reasonably beyond the control of either party, whether or not specifically enumerated herein. Page 24 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402' 30. SERVICE CHARGES. The DEVELOPER agrees to pay to the COUNTY the prevailing service charges for water supply and fire protection, sewage collection and disposal within the CITY'S property as may be applicable until the responsibility for payment of said charges is properly transferred in accordance with the COUNTY'S regulations. 31. USE OF FACILITIES BY COUNTY. The COUNTY reserves the right to make full use of the water and/or sewer facilities to be owned by the COUNTY as contemplated herein to serve other customers at any time. 32. OPINION OF TITLE. With the execution of this Agreement, the DEVELOPER and the CITY, as applicable, shall deliver to the DEPARTMENT respective opinions of title for the CITY'S property, and for the DEVELOPER's easements, as applicable, issued by a qualified attorney licensed to practice law in the State of Florida, which states that the CITY owns fee simple title to the property referred to herein and regarding the easements to DEVELOPER, the CITY, and/or the COUNTY, as applicable. 33. BACTERIOLOGICAL TESTS AND INDEMNIFICATION. DEP requires that prior to the rendition of any new water service by the DEPARTMENT, bacteriological tests must be performed. It is the responsibility of the DEVELOPER to comply with all such requirements and to obtain all necessary approvals. In addition, the use of floating meters for construction purposes is subject to State of Florida requirements and approval by the Page 26 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 COUNTY. The CITY and the DEVELOPER may request approval for the use of floating meters prior to actual conveyance of title to the facilities to the COUNTY. However, the COUNTY may be required to execute documents to the Miami -Dade County Department of Environmental Resources Management (DERM) or State of Florida Department of Health (DOH), which state that the COUNTY has accepted title to the facilities. If the COUNTY is required to execute such documents, the DEVELOPER agrees to indemnify and hold the COUNTY and the CITY harmless from and against all claims, actions, judgments, damages, loss, cost and expense including reasonable attorney's fees which may be incurred by the COUNTY and/or the CITY, as the case may be, in connection with the rendition of water service through. the facilities constructed and installed by the DEVELOPER prior to conveyance of title to the COUNTY, including but not limited to those that result from failure to properly maintain and repair the water facilities. 34. • ASSIGNMENT OF AGREEMENT. No right to'anywater supply and sewage disposal service commitment provided for in this Agreement shall be transferred, assigned or otherwise conveyedto any other party without the express written consent of the Director of the DEPARTMENT or his designee except as noted below. The consent of the DEPARTMENT shall not be required in connection with the sale, lease or other conveyance of property or any residential units or commercial establishments to any party who will be the ultimate user of the property, including but not limited to a bona fide purchaser, lessee, resident or occupant. The intent of this paragraph is to require consent of the DEPARTMENT for assignments or transfers of any water and sewage disposal Page 26 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 . capacity allocation to any party who holds such property as an investment for resale or who intends to develop for sale a portion of the CITY'S property, so that the COUNTY can - adequately determine the demand for water and sewage disposal capacity and plan for the fair and equitable allocation of water and sewage disposal capacity among the residents of Miami -Dade County. Consent, when required, shall not unreasonably be withheld by the DEPARTMENT. If the CITY'S property is transferred or conveyed, the DEVELOPER shall remain liable to the COUNTY and the CITY for any and all sums of money and all obligations due hereunder unless released in writing by the COUNTY and/or the CITY, as applicable. 35. ENTIRE AGREEMENT. This Agreement supersedes all previous agreements and representationg, whether oral or written, between the CITY, DEVELOPER, and the COUNTY, and made with respect to the matters contained herein and when duly executed constitutes the complete Agreement between the CITY, DEVELOPER and the COUNTY. 36. NOTICE. All notices given pursuant to this Agreement shall be mailed by United States Postal Service registered or certified mail to the parties at the addresses specified on page two (2) of this Agreement or addresses otherwise properly furnished. 37. RECORDING OF AGREEMENT. This Agreement is being recorded in the public records of Miami -Dade County, Florida, for the particular purpose of placing all Page 27 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 owners and occupants, their successors and assigns, upon notice of the provisions herein contained. The DEVELOPER shall pay all recording fees. 38. SEVERABILITY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision beyond such extent or in any other. jurisdiction. It is the intention of the parties to this Agreement that if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, the provision shall have the meaning which renders it valid. 39. VENUE AND JURISDICTION. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. Page 28 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officials as of the day and year above written. WITNESSETH: MIAMI-DADE COUNTY signature print name signature print name By: John W. Renfrow, P.E., Director Miami -Dade Water and Sewer • Department STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of , 2006, by John W. Renfrow, P.E., Director, of the Miami - Dade Water and Sewer Department, who is personally known to me and did not take an oath. Notary Public Serial Number print name Page 29 of 31 FLAGSTONE ISLAND GARDENS, tD# 19402 ATTEST: CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORI DA By: By: Priscilla Thompson, Pedro G. Hernandez, City Clerk City Manager Approved as to Form and Correctness Jorge L. Fernandez, Citv Attorney STATE OF FLORIDA • COUNTY OF MIAMI-DADE Approved as to Insurance Requirements LeeAnn Brehn Risk Management Director The foregoing instrument was acknowledged before me this day of , 2006, by Pedro G. Hernandez, City Manager of the Citv of Miami, who is personally known to me and did not take an oath. Notary Public Serial Number print name Approved as to Form and Correctness: Jorge L. Fernandez, Cfty Attorney Page 30 of 31 FLAGSTONE ISLAND GARDENS, ID# 19402 WITNESSETH: FLAGSTONE ISLAND GARDENS, LLC, A FLORIDA LIMITED LIABILITY COMPANY By: signature signature print name print name of managing member signature print name STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of , 2006, by managing member, who is personally known to me or and has/hasn't produced as identification and did/did not take an oath. Notary Public Serial Number print name Approved for Legal Sufficiency: Assistant County Attorney Page 31 of 31