HomeMy WebLinkAboutExhibit5CITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Pedro G. Hernan ez; City Manager
FROM: Jorge L. Fernande C t�'Attorney
DATE: December 4, 2007
RE: Florida Power & Light Company Easements
Matter ID No.: 07-2034 (07-01434), 07-2035 (07-01433) and 07-
2036 (07-01435)
The above referenced resolutions are scheduled to appear on the December 13 City
Commission Agenda. Please attach a copy of this memorandum highlighting to the City
Commission the risks and liabilities that the City would assume if it executes the proposed form
easements. While we have reviewed the form easements for their legal sufficiency, the City
Commission should be apprised of our Office's reservations.
The Office of the City Attorney was asked to review a form easement (the "Easements")
Florida Power & Light ("FPL") has requested that the City execute in connection with several
actual and possible future easements. The actual Easements are for the Little Haiti Park, Fern
Isle Park and Grapeland Park. Please be advised that the terms as proposed in the Easements
could potentially expose the City to unnecessary risk and liability and possibly interfere with the
City's property rights.
I. Indemnification
The Easements do not contain any hold harmless or indemnification language. While
FPL is correct in stating that the City has the right to seek indemnification if FPL has been
negligent, it is much more difficult to obtain 100% indemnification if the parties did not set their
intent out in writing. The Easements should at least contain a minimal hold harmless clause
requiring FPL to indemnify the City for any damages to person or property caused as a result of
the direct and sole negligence of FPL, its employees or agents. The Easements also do not
require FPL to acquire any type of insurance for any damages it causes during its performance of
work on the properties. Without indemnification or insurance, the Easements do not adequately
protect the City.
II. Condition of the subject properties
The Easements do not direct future work on the subject properties to be underground, as
does our proposed easement, nor do the Easements require FPL to restore the subject properties
to the state they were in prior to its performance of any work. Similarly, the Easements do not
guarantee that FPL's work will not conflict with the City's operations.
100095
III. Notices
The Easements do not require FPL to provide the City with any notice whatsoever that it
is entering the subject properties.
IV. Interference with the City's property rights
An important issue to also consider is that the Easements allow FPL the right to permit
any other entity to attach wires and lay cable. This right would allow FPL to grant easements to
other communication companies such as AT&T, Verizon, Cingular, etc., through its own
easement, thereby circumventing the City's property rights and the City's absolute right to
determine who has right of entry into its property. The Easements allow FPL to allow anyone on
the City's property that it chooses.
Notably, the City has traditionally granted non-exclusive easements to utility companies
on City -owned property. Though the City has chosen not to assess a monetary value on the
granting of such easements, such fees may be assessed in the future. At the very least, the City
should require FPL to execute our proposed easement encompassing the above referenced issues.
We have attached a copy of a satisfactory easement that the City Commission authorized
in February of this year for the property at 6421 NE 2 Avenue & 6301-05 NE 2' Avenue. An
easement which includes the clauses contained therein would serve to protect the City above and
beyond the Easements proposed by FPL. We have also included a copy of the Easements for
your reference.
Enclosure(s)
cc: Raphael O. Diaz, Assistant City Attorney
Veronica A. Xiques, Assistant City Attorney
Lori Billberry, Director, Public Facilities
Robert Fenton, Project Manager & Sr. Assistant to the City Manager
Madeline Valdes, Assistant Director, Asset Management
100095
Sec. ,TwpS,RgeE
Name:
Co. Name:
Parcel L.D.it 01-3218-020-0120
Address: 6421 NE 2"d Avenue. Miami. Fla.
Parcel L.D.k 01-32 1 8-020-0250
Address; 6301.05 NE 2"d Avenue, Miami, Fla.
(Maintained by County Appraiser
1111111 1 1111111111111111111111111111111111111
CFN 2Oo7RO 9594i i
OR Bk 25549 P95 1907 - 1915i (999s)
RECORDED 04/19/2007 12:36:43
HARVEY RUVINr CLERK OF COURT
MIA11I-DADE COUNTY, FLORIDA
GRANT OF EASEMENTS
FPL WR 1f
THIS INDENTURE is made this 1 day of __ � , 2007,
between the CITY OF MIAMI, a municipal corporation of the State of Florida
(hereinafter called "GRANTOR"), and FLORIDA POWER & LIGHT COMPANY, its
licensees, agents, successors, and assigns (hereinafter called "GRANTEE").
WITNESSETH:
THAT, the GRANTOR, for and in consideration of the sum of ONE DOLLAR
($1.00) and other good and valuable considerations, the receipt of which is hereby
acknowledged by the GRANTOR, has granted and does hereby grant to the GRANTEE,
its successors and assigns, forever, the right and privilege of: (1) a perpetual, non-
exclusive easement on a five (5) foot wide by approximately two hundred fifty-three
(253) foot long strip of City -owned properly located at 6421 NE 2nd Avenue, Miami,
Florida, and (2) a perpetual, non-exclusive casement on a five (5) foot wide by
approximately four hundred fifty-one (451) foot long strip of City -owned property
located al 6301-05 NE 2nd Avenue, Miami, Florida, shown and described on EXHIBIT
Book25549/Page1907 CFN#20070395940 Page 1 of 9
"A" attached herein and made a part hereof (hereinafter called the "PROPERTIES" or the
"EASEMENTS"), with full right of ingress thereto and egress therefrom, for the purpose
of facilitating the construction, operation and maintenance of overhead and underground
electric utility facilities (including wires, poles, guys, cables, conduits and appurtenant
equipment) to byinstalled from time to time (hereinafter called the "FACILITIES"), with
the right to ree/onstruct, improve, change the voltage of and remove such FACILITIES or
any of them within the EASEMENTS.
The GRANTEE shall regulate the installation, future operations and maintenance
of the FACILITIES so as not to conflict with normal operations of the GRANTOR, or its
licensees, agents, successors, and assigns; however, the GRANTEE shall have full right
to enter upon the EASEMENTS at any time when normal operations or emergency
repairs of the FACILITIES are required.
The GRANTEE agrees to indemnify, defend and hold harmless the GRANTOR
from all and against all suits, claims and judgments, and all loss, damage, costs, attorneys
fees and court costs or charges arising directly or indirectly from the installation or
maintenance, repair, use or existence of the GRANTEE'S FACILITIES or the
EASEMENTS.
The GRANTOR shall be given written notice and the opportunity by the
GRANTEE to attend all preconstruction meetings on installation work of the
FACILITIES within the EASEMENTS and shall be notified in writing well in advance of
the actual start of construction within the EASEMENTS. Notice shall be provided to
City of Miami, City Manager, 444 SW 2" Avenue, le Floor, Miami, FL 33130,
Book25549/Page1908 CFN#20070395940 Page 2 of 9
with a copy to City of Miami, Capital Improvements and Transportation, 444 SW
8'" Floor, Miami, Florida 33130.
2nd Avenue,
It is further understood and agreed by and between the parties hereto that
GRANTOR reserves to itself, its heirs and assigns, all other rights not specifically granted
herein, including, but not limited to, the right to construct streets, cross and recross said
EASEMENTS, and the right to erect light or telephone lines or any other improvements
which do not hinder the operation of the FACILITIES by the GRANTEE on an ongoing
basis.
The GRANTEE shall be held responsible for any damage to adjacent property as a
result of the installation, future operation, use and/or maintenance of the FACILITIES,
and further, shall restore all pavement, sidewalks, curbs and gutters, existing utilities and
landscaping to a condition acceptable to the GRANTOR.
During the course of installation, future operation and/or maintenance of the
FACILITIES, the GRANTEE shall not encroach beyond the boundaries of the
EASEMENTS or any other easement that may be granted by the GRANTOR. Should the
EASEMENTS be abandoned or discontinued by law or otherwise, or should they be used
for a purpose other than as authorized hereunder, the said EASEMENTS shall cease and
revert with the right of immediate possession and right of entry to the GRANTOR or its
successors in interest.
The GRANTEE agrees to restore to a condition acceptable to the City and at
GRANTEE'S. sole cost and expense, any damage to the PROPERTIES/EASEMENTS or
the FACILITIES, or any areas used by GRANTEE'S agents for ingress and egress
thereto, caused as a result of the construction, use, operation and maintenance of the
3
Book25549/Page1909 CFN#20070395940 Page 3 of 9
FACILITIES by the GRANTEE'S agents. Such restoration shall be done as and when
requested by the GRANTOR.
The GRANTOR does hereby fully warrant that it has good title to the
PROPERTIES and that it has full power and authority to grant these EASEMENTS.
IN WITNESS WHEREOF, the Grantor has caused this Grant of Easements to be
executed the day and year first above written.
CITY OF MIAM1, a municipal corporation of
the State of
By:
ATTEST:
�' Pnsci1Ia A. 7`hompson
/` 'dity;Clerk - *
(n n :r
J
,
rf
1 rJ'. � .
APPROVED AS TO FORM AND
Pedro G. 1-teman•ez, City Manager
4
APPROVED AS TO INSURANCE
RE'. S REMENTS:
LeeAnn Brehm, Risk Management Director
Risk Management Department
Book25549/Page1910 CFN#20070395940 Page 4 of 9
Lscig, T wp53 S, Rc E
0132180200120
Parcel I.D. 0132180200250
;Maintained by County Appraiser)
Form 3722 (Stocked) Rev. 7194
,' crk Request No. 2 766393 EAS EM ENT
This Instrument Prepared By
Name
Co. Name. Fonda Power E !-hghf Company
Address:
Go of
The-undersignedt-:-OF.co <.. :.$1.:O0-end-othergood
and valuable consrderartr',; r,e=deaVacy and receipt of which is hereby
acknowledged, grant and give to Florida Power & Light Company, its
licensees, agents, successors, and assigns, an easement forever for the
construction, operation and maintenance of overhead and underground
electric utility facilities (including wires, poles, guys, cables, conduits and
appurtenant equipment) to be installed from time to time; with the right to
reconstruct, improve, add to, enlarge, change the voltage, as well as, the size
of and remove such facilities or any of them within an easement feet in
widih described as follows:
See (Exhibit "A")
Together with the right to permit any other person, firm or corporation to attach wires to any facilities hereunder and lay cable
and conduit within the easement and to operate the same for communications purposes; the right of ingress and egress to said
premises at all limes; the right to clear the land and keep it cleared of all frees, undergrowth and olher obstructions within the
easement area; to Trim and cut and keep trimmed and cut all dead, weak, leaning or dangerous trees or limbs outside of the
easement area which might interfere .with or fall upon the lines or systems of communications or power transmission or
distribution; and further grants, to the fullest extent the undersigned has the power to grant, if at all, the rights hereinabove
granted on the land heretofore described, over, along, under and across the roads, streets or highways adjoining or through
said properly. .
IN WITNESS WHEREOF, the undersigned has signed and sealed This instrument on , 20_.
Signed, sealed and delivered in the presence of:
(Witness' Signature)
Print Name:
(Witness)
(WdInessSignature)
Print Name:
(Witness)
By:
(Corporate s name)
Print Name:
Print Address:
Attest:
(Presioenrs signature)
Print Name:
Print Address:
(Secretary's signature)
(Corporate Seat)
STATE OF AND COUNTY OF The foregoing instrument was acknowledged before me this
day of , 20, by and
respectively the
President and Secretary of
corporation, on behalf of said corporation, who are personally known to me or have produced as
identification, and who did (did not) take an oath. (Type of tdenti canon)
My Commission Expires:
Notary Public, Signature
Print Name
1
vJ K ,9i,