HomeMy WebLinkAboutAgreementFLAGSTONE ISLAND GARDENS, ID# 19402
1111I1I 1111111111 lIII 11111111111111111111111
CFN 2007RO54 9887
OR f;k 25664i F9s 0680 - 715; (36p9s)
RECORDEO'06/01/2007 11:24:38
RARVEY RUVIN► CLERK OF COURT
11IMI-DADE COUNTY? FLORIDA
AGREEMENT
FOR
WATER AND SANITARY SEWAGE FACILITIES
BETWEEN
M1AMI-DADE COUNTY
AND
CITY OF M1AMI
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
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this
THIS AGREEMENT, made and entered into at Miami -Dade County, Florida,
day of
, 2001 by and between
Miami -Dade County, a political subdivision of the State of Florida, hereinafter designated
as the "COUNTY", whose mailing address is: cio Miami -Dade Water and Sewer
Department, P.O. Box 330316, Miami, Florida 33233-0316, 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. 2"d 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 leased 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.
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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 eitherthe
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
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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
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
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Final Partial Consent Decree entered in United States of America Environmental
Protection Agency (EPA) vs. Metropolitan Dade County (Case Number 93-1109 CIV-
Moreno), as currently in effect or 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 for 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
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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 a part hereof, multiplied by
the applicable rates established by the COUNTY. The CITY intends for the DEVELOPER
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 and the
DEVELOPER 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
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property, and the CITY expressly waives any rights or defenses it 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
bulldings.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 diameterwater
mains within the CITY'S property as required to abut and provide service to all portions of
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the CITY'S property and development therein, in looped system with two (2) points of
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 and the CITY.
7. REMOVALlRELOCATION OF FACILITIES. The CITY and 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 by the DEVELOPER. 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 the CITY 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..
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8. EMERGENCY GENERATOR AND GENERATOR HOUSING. The
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 for a 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 orforthe
DEVELOPER in accordance with plans and 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
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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,
service connections, service lines, shutoffs, meter boxes, air release valves, emergency
generator and generator housing, and all appurtenances thereto fora 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
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contractor, shall jointly be present to witness tests for determination of conformance with
approved plans and specifications. The DEVELOPER shall notify the COUNTY and the
CITY 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 Agreernent. The
DEVELOPER shall not be entitled to compensation for any monies previously paid to any
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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
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Florida Water Management District, the U.S. Army Corps of Engineers and the Florida
East 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 attorneys 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 permittor. Otherwise, the DEPARTMENT and/or the CRY,
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 byCOUNTY personnel only. The
DEVELOPER hereby agrees to pay to the COUNTY its standard water service tine
installation charge, permit fees and service fees prior to any such installation.
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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
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
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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
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
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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
(25) foot minimum vertical clearance above the finished grade. The DEPARTMENT and
the CITY 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
CITY'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 easementwill 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
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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 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
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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 survey specified herein shall constitute final acceptance by the COUNTY of
said facilities. After final acceptance, the facilities shall 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 andlor
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
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Gravity sewers
50
Emergency generator and 100
housing
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 Honda. A surety company must have a Bests 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-attomey
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
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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.
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 all 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.
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FLAGSTONE ISLAND GARDENS, ID# 19402
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
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
Tess 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 Tess than five
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FLAGSTONE ISLAND GARDENS, ID# 19402
hundred thousand dollars ($500,000.00) per occurrence for Bodily Injury and
Property Damage combined.
All 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 less than "A"
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
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FLAGSTONE ISLAND GARDENS, ID# 19402
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
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 attomey's fees and
costs of defense, which the COUNTY and/or the CITY, as applicable, or their respective
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FLAGSTONE ISLAND GARDENS, ID# 19402
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
investigate and defend all claims, suits or actions of any kind or nature in the name of the
COUNTY and/or 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 force majeure 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,
Page 24 of 31
Book25664/Page703 CFN#20070549887
Page 24 of 36
FLAGSTONE ISLAND GARDENS, ID# 19402
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.
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
regu lations.
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 attomey 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
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FLAGSTONE ISLAND GARDENS, ID# 19402
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
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, Toss, 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 any water supply and sewage
disposal service commitment provided for in this Agreement shall be transferred, assigned
or otherwise conveyed to 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
Page 26 of 31
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FLAGSTONE ISLAND GARDENS, ID# 19402
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
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 representations, 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.
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FLAGSTONE ISLAND GARDENS, ID# 19402
37. RECORDING OF AGREEMENT. This Agreement is being recorded in the
public records of Miami -Dade County, Florida, for the particular purpose of placing ail
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
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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:
� /cleid
ca Bya
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
MIAMI-DADE COUNTY
John W. Renfrow, P.E., Director
Miami -Dade Water and Sewer
Department
The f going instr ent was acknowledged before me this day of
, 200 , by John W. Renfrow, P.E., Director, of the Miami -
Dade Water nd Sewer D- • : rtm nt, who is personally Y, r;• ..•'
N t3'
1 /AS
NANCY COBB
Notary Pub - State
of Ronda
syo'p fpV B 5''l' Commission Expires Jul 6, 2010
„ A= Commission 0 DO 571699
,,•,• Bonded By National Notary Assn.
Page 29 of 31
Serial Number
Book25664IPage708 CFN#20070549887 Page 29 of 36
FLAGSTONE ISLAND GARDENS, ID# 19402
ATTEST:
Approv
CITY OF MIAMI, A MUNICIPAL
CORPORATION OF THE STATE OF
FLORIDA
i 2-,1,7By:
Pris ' lia Thompson, P dro Hernandez,
City CIo k City Manager ----
Approved as`to Insurance
Requirements
' f 7lv�ro "2
st
Form and Correctness
Jor•e L Fernandez Cit Attorne
STATE OF FLORIDA
COUNTY OF MIAMI-DADS
The foregoing instrument was ackn wledged before me this - day of
�G�n Jai , 2001, by dro G, Hernandez; City Manager of the City of
LeeAnn'Brehn
Risk Management Director
Miami, who
S ficv5, Ac `r5 £(
personally known to me and did not take an oath.
4
Notary Public
print name
Approved as to Form and Correctness:
Jorge L. Fernandez, City Attorney
Ofelia E. Perez
Commission #DD221319
r Expires: Jul 26, 2007
.v ....•'eP:
Bonded Thru
'hen° Atlantic BondingCo., Inc.
Page 30 of 31
Serial Number
Ofelia E. Perez
Commission #DD221319
Expires: Jul 26, 2007
a �o Bonded Thru
Atlantic Bonding Co., inc.
Book25664/Page709 CFN#20070549887 Page 30 of 36
FLAGSTONE ISLAND GARDENS, !D# 19402
INFTNESSETH:
signature
Li-iiiiitruf 4- f:'/&
print name
1C 2
signature
�eSSIc� KIu#JSt,t'
print name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
FLAGSTONE ISLAND GARDENS, LLC
By: FLAGSTONE DEVELOPMENT
CORPORATION, its managing member
::e:
tI ehmet Bayr
Its: President
The foregoing instrument was acknowledged before me this 0 day of
Nov16" , 2006, by T'11i~tMrtE;' +�-
President . who is personally known to me or and has/hasn't produced
as identification and did/did not take an oath.
Notary Public
print name
Approved for legal Sufficiency:
Pefze-28-of"29.
Serial Number
NOTARY PUBLIC -STATE OF FLORIDA
Juan Carlos Echeverria
Commission # DD456072
Expires: JULY 31, 2009
Bonded Thru Atlantic Bonding Co., Inc.
Book25664/Page710 CFN#20070549887 Page 31 of 36