2003-055RESOLUTION NO. 2003-55
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF AVENTURA, FLORIDA, APPROVING AGREEMENT
BETWEEN THE CITY AND FLORIDA POWER AND LIGHT
("FPL") CONCERNING PENDING RELOCATION OF FPL
FACILITIES TO CITY RIGHT OF WAY AND ANY
POTENTIAL FUTURE RELOCATION OF FPL FACILITIES
FROM CITY RIGHT OF WAY LOCATED AT THE
LOEHMANN'S FASHION ISLAND AND APPROVING AND
ACCEPTING RELATED DECLARATION OF
RESTRICTIONS BY THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, SO AS TO FACILITATE FPL
UTILITY RELOCATION WHICH IS NECESSARY TO THE
DEVELOPMENT OF THE TOWN CENTER PURSUANT TO
RESOLUTION NO. 2002-46; PROVIDING FOR EFFECTIVE
DATE.
WHEREAS, the City Commission of the City of Aventura finds that approval of the
Agreement (the "Agreement") between Flodda Power and Light Company ("FPL") and the
City of Aventura (the "City"), and the approval and the acceptance of the Declaration of
Restrictions (the "Declaration") by The Prudential Insurance Company of America
("Prudential") ara in the best interest of the City; and
WHEREAS, the City Commission finds that implementation of the FPL utility
relocation, as described in the Agreement and in the Declaration, will serve to assist in the
implementation of the Town Center development pursuant to Resolution No. 2002-46 of
the City Commission.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
~ ~,~ That each of the above stated recitals are hereby
adopted and confirmed.
Resolution No. 2003-55
Page 2
~ Declaration of Restrictions Approved and Accepted_ That the
Declaration, in substantially the form attached hereto, by The Prudential Insurance
Company of America, is hereby approved and accepted, and the City Manager is
authorized to execute City's acceptance thereof, once the Declaration is approved as to
legal form and sufficiency by the City Attorney.
~ A_are~ment Approved. That the Agreement between FPL and the
City, in substantially the form attached hereto, is hereby approved, and the City Manager
is authorized to execute such Agreement, on behalf of the City, once said Agreement has
been approved as to legal form and sufficiency by the City Attorney.
~ lmla~amm~zL That the City Manager is authorized to take any
action necessary to implement this Resolution, the Agreement and the Declaration.
~ ~ That this Resolution shall be effective immediately
upon adoption hereof.
The foregoing Resolution was offered by Commissioner Cohen, who moved its
adoption. The motion was seconded by Vice Mayor Grossman, and upon being put to a
vote, the vote was as follows:
2
Resolution No. 2003-55
Page 3
Commissioner Zev Auerbach
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Bob Diamond
Commissioner Harry Holzberg
Vice-Mayor Manny Grossman
Mayor Jeffrey M. Pedow
yes
yes
yes
yes
yes
yes
yes
PASSED AND ADOPTED this 17th day of July, 2003.
3
~!tfis instrument prepared by
and when recorded return to:
Clifford A. Schulman, Esq.
Greenberg Traurig LLP
122l Brickell Avenue
Miami, Florida 33131
(Space Above For Recorder's Use Only)
DECLARATION OF RESTRICTIONS
WHEREAS, the undersigned The Prudential Insurance Company of America, a
New Jersey corporation, (the "Owner") is the owner of the following described real
property planned for the construction of apartment buildings with related amenities (the
"Property"), lying, being, and situated in Aventura, Florida, and legally described as:
See Exhibit "A" attached hereto and by this reference made a
part hereof.
WHEREAS, in order for the Property, to be developed as planned and approved
by the City of Aventura (the "City"), Florida Power and Light Company ("FPL") must
relocate certain electrical transmission facilities, consisting of two (2) electrical poles
and their accompanying facilities (the "Electric Facilities") from the existing FPL
easements on the Property to nearby City right-of-way, as more specifically shown at its
approximate future location on the drawing attached hereto as Exhibit "B"; and
WHEREAS, the City of Aventura (the "City") has entered into an agreement (the
"Reimbursement Agreement") dated ~'11, 2003, with Florida Power and Light
Company ("FPL"), attached hereto as Exhibit "C", for the costs of potential future
relocation of the Electric Facilities from or within the City rights-of-way, as shown in
Exhibit "B", at any and all times subsequent to the initial relocation of the Electric
Facilities from the Property onto the City rights-of-way; and
WHEREAS, subsequent City initiated relocation of the Electric Facilities may be
required if the Electric Facilities are unreasonably interfering with the convenient, safe,
or continuous use, or the maintenance, improvement, extension or expansion of the City
right-of-way described as N. E. 29th Avenue between 187th Street and 188th Street,
pursuant to Section 337.403 of Florida Statutes; and
WHEREAS, City has requested that Owner enter into a covenant running with the
land which would obligate Owner to fully indemnify City for any costs incurred by City
for any subsequent required relocation of the Electric Facilities made pursuant to Section
337.403 of Florida Statutes;
NOW THEREFORE, in consideration of the premises, and in order to assure the
Aventura City Commission that the Owner and its successors and assigns will fully
indemnify the City for any costs incurred for the subsequent relocation of the Electric
Facilities, except as otherwise set forth herein, the Owner freely, voluntarily, and without
duress makes the following Declaration of Restrictions covering and running with the
Property:
(1)
Indemnification: In the event that FPL, fi.om time to time, requires the
City to pay for the relocation of the Electric Facilities pursuant to the
City's obligations arising out of the Reimbursement Agreement and
pursuant to section 337.403, Florida Statutes in connection with the City
right-of-way described as N. E. 29th Avenue between 157th Street and
188th Street N.E., the City shall pay FPL for such relocation pursuant to
the City's Reimbursement Agreement. Owner agrees to fully indemnify
and reimburse the City for all actual costs it incurs pursuant to the
Reimbursement Agreement in connection with the relocation of the
Electric Facilities, if determined by the City to be a public necessity
pursuant to section 337.403, Florida Statutes and for no other reason. The
City recognizes and agrees that it cannot require FPL to install the Electric
Facilities underground and that if the City, in the future, should desire to
provide for the underground installation of the Electric Facilities, such
underground installation would require the consent of FPL and would
be at the cost of the City. Notwithstanding the foregoing, in no event
shall Owner be required to reimburse City or FPL for the costs of locating
the Electric Facilities underground and/or the undergrounding of any other
electric transmission facilities existing on the Property or outside the
boundaries of the Property unless such underground installation is
expressly requested by Owner and agreed to by FPL. The City expressly
agrees to consult with FPL at the earliest stages of any plans, and before
adoption of such plans, that would require the relocation of the Electric
Facilities pursuant to section 337.403, Florida Statutes and to use its best
efforts to avoid or to minimize the costs of any such relocation.
After consulting with FPL and prior to adoption of plans which would
require the relocation of the Electric Facilities which would obligate the
Owner to reimburse the cost of such relocation, the City shall obtain from
FPL, FPL's estimated cost of such relocation (excluding the cost of
additional right-of-way, if any, which cost shall be provided by the City)
and shall notify Owner, in writing, of the reason for such relocation, the
proposed new location of the Electric Facilities, and the estimated costs
thereof. Owner shall have thirty (30) days after receipt of said notice to
object to said relocation and the costs thereofi Failure of the Owner to
object to said relocation and the costs related thereto within the above-
noted time period shall constitute Owner's consent thereto. In the event
Owner objects to the planned relocation of the Electric Facilities:
a) Within three (3) working days after receipt of notice of
objection by Owner to the relocation, the City shall provide
(2)
(3)
evidence satisfactory to the Owner that the City met with FPL
and that the City used its best efforts to avoid or minimize the cost
of such relocation,. In addition, the City shall consider any
alternate locations which may be presented by Owner within 15
days after receipt of such notice (including the pre-existing
locations as approved by City), as to whether such existing or
alternate locations do not unreasonably interfere with the
convenient, safe, or continuous use, and the maintenance,
improvement, extension, or expansion of, such public road fight-
of-way, and the property of Owner and the improvements located
thereon. In the event that Owner does not agree with said
determination of the City, then said determination shall be subject
to expedited arbitration, as set forth in paragraph 7 below.
b) In the event that the relocation costs provided by the City
exceeds that costs provided by FPL, then Owner's objections shall
be submitted to FPL for determination as to the reasonableness of
the actual costs of the relocation. In the event that Owner does not
agree with said determination, then said determination shall be
subject to expedited arbitration, as set forth in paragraph 7 below,
however any such arbitration shall not be used to modify the FPL
costs as presented by FPL but only any additions thereto, by the
City.
Within fifteen (15) days of notification, in writing, by City that the
Electric Facilities have been relocated and certification as to the actual
costs incurred by the City in conjunction therewith, Owner shall pay to
City said actual costs. (in the event that the Electric Facilities relocation
involves the exemise of the power of eminent domain or any other
proceeding in condemnation of any property of Owner, nothing set forth
herein shall alter or impair the right of the Owner to propose, plea or
otherwise claim a right of compensation to the extent provided by law).
Covenant Running with the Land. This Declaration on the part of the
Owner shall constitute a covenant running with the land and shall be
recorded in the public records of Miami-Dade County, Florida and shall
remain in full force and effect and be binding upon the Owner and its
successors and assigns until such time as the same is modified or released
pursuant to the terms hereof. These restrictions during their lifetime shall
be for the benefit of, and limitation upon, all present and future owners of
the Property and for the public welfare.
Term. This Declaration is to run with the land and shall be binding on all
parties and all persons claiming by, through or under Owner for a period
of thirty (30) years from the date this Declaration is recorded after which
time it shall be extended automatically for successive periods of ten (10)
(4)
(5)
(6)
years each, unless an instrument signed by a majority of the, then,
owner(s) of the Property has been recorded agreeing to change the
covenant in whole, or in part, provided that the Declaration has first been
modified or released by the City of Aventura, as provided herein.
Modification, Amendment, Release. This Declaration may be modified,
amended, added to, derogated or released as to thc Property herein
described, or any portion thereof, by a written instrument executed by the,
then, owner of the Property, provided that the same is also approved by
the City Commission after public heating, as provided herein.
Notwithstanding the foregoing, no modification, amendment, release of
this agreement shall affect the duty of the City to reimburse FPL pursuant
to its Reimbursement Agreement with FPL.
Should this Declaration be so modified, amended, added to, derogated or
released by the City Commission after a public hearing, the City Manager
shall forthwith execute a written instrument effectuating and
acknowledging such modification, amendment, derogation, or release.
Future Requests. Nothing contained herein should be construed to
bind the City, or any of its boards, departments or agencies to favorable
recommendation or approval of any application, permit, zoning, approval
or other exercise of its police or legislative power ("Applications") and the
City retains its full power and authority to approve or deny such
Application in whole or in part, in accordance with law. Acceptance of
this Declaration does not confer any rights, upon the Owner or its
successors with respect to such Applications.
Enforcement. Enfomement shall be by action against any parties or
person violating, or attempting to violate, any provision of this
Declaration. This Declaration, and the acceptance hereof by the City, is
not intended and should not be construed to confer any rights on any third
parties. The prevailing party in any action or suit, pertaining to or arising
out of this Declaration, shall be entitled to recover, in addition to costs and
disbursements allowed by law, such sum as the Court may adjudge to be
reasonable for the services of its attorney, at trial and appeal, or any other
levels. This enforcement provision shall be in addition to any other
remedies available at law or in equity or both.
Furthermore, should Owner fail to fully indemnify and reimburse City for
the costs it incurs in the subsequent relocation of Electric Facilities within
thirty (30) days after receipt of written notice from City setting forth the
failure to pay specific amounts due, City shall have the right to impose,
file, and enforce a lien upon the Property which will only be released
when all monies due to the City have been paid by Owner or as the City
and Owner may otherwise agree.
(7)
(8)
(9)
(10)
Arbitration. Any dispute or controversy arising under or in connection
with this Declaration shall be settled by arbitration to be held in the
Miami-Dade County, Florida in accordance with the rules of the American
Arbitration Association then in effect. However, the subject of the
arbitration shall not include the reasonableness of FPL costs as presented
by FPL. In addition, in the event that either party to the arbitration
requires the use of FPL witnesses or documents, the requested party shall
be responsible for FPL's costs and fees for said testimony or documents.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction pursuant to the Florida Arbitration Code, Chapter 682, Florida
Statutes, and the parties to this Agreement consent to the jurisdiction of
the Florida courts for this purpose. Any process or other papers under this
provision may be served outside the State of Florida in the same manner
provided with respect to notices under this Declaration, provided a
reasonable time for appearance or response is allowed. Each party to the
arbitration shall appoint one arbitrator and the two arbitrators so appointed
shall appoint a third arbitrator. The arbitration panel shall meet within
thirty (30) days of the date of the notice of the disputing party that it is
invoking the arbitration provision herein, unless otherwise agreed to by
the parties. The parties shall be afforded reasonable preheating disclosure
of relevant information. Each party to the arbitration shall have one day to
present its case to the arbitrators and the arbitrators shall be instructed to
make their award no later than 30 days after the date of the closing of the
heating. The arbitrators may provide that the costs, expenses and
attorneys' fees incurred by the prevailing party in connection with the
proceeding will be paid, in part or full, by the other party to the arbitration.
The parties will be entitled to injunctive relief to restrain any breach or
threatened breach of this Declaration pending the resolution of a dispute
pursuant to this Paragraph. Arbitration hereunder shall be mandatory,
binding and final.
Election of Remedies. All rights, remedies and privileges granted herein
shall be deemed to be cumulative and the exercise of any one or more
shall neither be deemed to constitute an election of remedies, nor shall it
preclude the party exercising the same from exercising such other
additional rights, remedies or privileges.
Severability. Invalidation of any one of these covenants, by judgment of
a Court of competent jurisdiction shall not affect any of the other
provisions which shall remain in full force and effect.
Recording. This Declaration shall be filed of record in the public records
of Miami-Dade County, Florida at the cost of the Owner.
Authority. Owner represents that it has the authority to enter into this
Declaration as a binding instrument in full force and effect.
[THIS PORTION INTENTIONALLY LEFT BLANK]
Signed, witnessed, executed and acknowledged this ~ day of
2003.
The Prudential Insurance Company of
America, a New Jersey corporation.
By: ~t
Barry
Witnessed By:
STATE OF NEW JERSEY }
COUNTY OF %£'hJl..t a~ }ss:
yo he foregoing instrument was acknowledged before me this ~'~O~/d'day of
, 2003 by tl~t~ttt.~Vice President of The Prudential Insurance
f America, a NewOJersey corporation, who is personally known to me or
produced a valid driver's license as identification.
My Commission Expires:
Accepted By City of Aventura:
/
Eric Soroka, Cit~IVlan~er
!,4 Xd
Date
Notary Public
Sign Name:
Serial No. (None, if blank):
[NOTARY SEAL]
MARIA A. DASILVA
NOTARY PUBLIC OF NEW JERSEY
COMMISSION EXPIRES MAR. 22, 2008
Approved as to Legal Form and Sufficiency:
David Wolpi~, Esq.
City Attome# , /~ ~
Attest:~4,._,~]dj~ )~ //~-~
T~;^ t~. bo~, CitylCler'k
(SEAL)
Legal Description
A portion of Tracts B & C, REGINA SQUARE SUBDIVISION, according to the Plat thereof as recorded in
Plat Book ! 13, Page 27, of the Public Records of Minmi-Dade County, Florida, lying in the SW 1/4 of
Section 3, Township 52 South, Range 42 East, City of Aventura, Miami-Dada Comity, Florida and
more particularly described as follows:
Begin at the Northeast comer of said Tract "C"; the following three (3) courses being along the Easterly and
Southerly line of said Tract "C" said line also being along the Westerly right-of-way line of H.E. 29th
Avenue and Northerly right-of-way line ofN.E. ! $Tth Slreet as shown on said Plat of REOINA SQUARE
SUBDIVISION, (1) thence South 00° 38' 10' East for 260.56 feet to a point of curvature; (2) thence
Southerly and Westerly along a 128.90 foot radius curve leading to the fight, through a eenWal angle of 90°
41' 25" for an arc of 204.03 feet to a point oftmigency; (3) thence North 89° 56' 45~ West for 126.02 feet to
the Southwest comer of said Tract nC"; theace continue North 89° 56' 45" West along the South line of said
Tract "BM also being said Northerly right-of-way ofN.E. 187th Slreet for 364.91 feet; thence North 00° 03'
15" East for 443.27 feet; thence South 89° 56' 45" East along a line parallel with said South line of Tract 'B'
for 616.05 feet; thence South 0° 38' 10" East along the East line of said Tract "B" also being the West right-
of-way line of N.E. 29th Avenue for 52.27 feet to the POINT OF BEGINNING.
A-1
RuK 12 03 03:05p
De'
~lopment
305 ~45-1834
EXHIBIT
A
PROPOSED POLE LOCATIONS
SCALE 1/64" = 1'-0"
AGREEMENT
THIS AGREEMENT entered into this }1 )(k _day of ]b~ t,d'J , 2003 by and between
the City of Aventura, a Florida municipal corporation, ("City"), and Florida Power & Light
Company, a Florida corporation ("FPL').
RECITALS
WHEREAS, the City has authority pursuant to s. 2(b), Article VII of the state constitution,
section 166.021, Florida Statutes and the City charter, to encourage and promote development in
accordance with the City's growth management plan and land development regulations; and
WHEREAS, under the provisions of Part III of Chapter 163 of Florida Statutes, the City is
mandated to adopt and, thereafter, implement land development regulations that are consistent
with the provisions of the adopted Comprehensive Plan; and
WHEREAS, the City finds that the development and rehabilitation of Loehmann's Fashion
Island into a Town Center pursuant to the City's adopted Comprehensive Plan and as approved
by the City pursuant to Resolution No. 2002-46 for the conditional use approval for Phase I of
the Loehmann's Fashion Island (hereinafter referred to as "Planned Development") will
contribute to the vitality, economic benefit and general welfare of the City of Aventura and will
implement the provisions of the adopted City Comprehensive Plan; and
WHEREAS, Florida Power & Light Company ("FPL") is the owner of electric utility easements
lying within the Planned Development area and recorded in O.R. Book 12131, Page 967, and
O.R. Book 12131, Page 977, of the Public Records of Miami-Dade County, Florida
("Easements") and has electric transmission facilities on the Easement that must be relocated in
order for the Planned Development to proceed; and
WHEREAS, it has been determined after investigation and study that the only viable alternative
for relocation of the FPL facilities is for two of the electric poles to be relocated onto public road
right-of-way; and
WHEREAS, FPL is willing to relocate certain of its facilities onto public road right-of-way
subject to certain conditions, including the right to reimbursement for subsequent relocations of
these electric facilities, and such agreements are commonly found in subordination agreements
between local governments or the State Department of Transportation, and FPL whenever FPL
must relocate its facilities from an easement onto public road right-of-way; and
WHEREAS, the City is authorized pursuant to section 170.01(1)(d), Florida Statutes, to pay for
the relocation of utilities pursuant to voluntary agreement with the utility; and that such payment
for future relocations is necessary and desirable in this situation in order to promote and ensure
the public welfare of the residents of the City of Aventura, including but not limited to the need
to ensure and provide for the timely construction of City road projects; and
WHEREAS, the present owner of the Planned Development has agreed that the City shall be
indemnified for payment to FPL for furore relocation costs of the subject electric poles by means
of a covenant running with the Planned Development's land whenever the City requires
relocation of the subject electric poles pursuant to section 337.403, Florida Statutes;
NOW THEREFORE, for good and adequate consideration, the City and FPL agree as follows:
1. The above recitals are found to be true and correct and are incorporated herein by reference.
2. After application by FPL and review and approval by the City's engineering department, the
City shall grant FPL a construction permit, consistent with this Agreement, for the installation of
the FPL electric poles within the City right-of-way described as N. E. 29th Avenue between 187th
Street and 188th Street. Such construction permit shall reference this Agreement. In the event of
any conflict between the construction permit and this Agreement, this Agreement shall govern.
3. The initial relocation of the FPL electric poles from the Easement to public right-of way shall
be at no cost to the City and pursuant to a relocation agreement between the owner and/or
developer of the Planned Development and FPL.
4. After the initial relocation of the FPL poles onto the City road right-of-way and pursuant to
the City right-of-way construction permit, the City hereby agrees to pay for any subsequent
relocation of the FPL facilities which the City requires after any City determination that the
facilities are unreasonably interfering with the convenient, safe, or continuous use, or the
maintenance, improvement, extension, or expansion of such public road right-of-way. Nothing
herein shall prevent the City from then seeking indemnification from the then owner of the
Planned Development pursuant to separate agreement or covenant providing for such
reimbursement.
5. This Agreement creates a right of reimbursement as set forth herein and does not create or
grant any title, easement, or other legal interest in or to the City right-of-way or other real
property of the City in or on behalf of FPL.
6. This Agreement shall be construed in accordance with the laws of the State of Florida. If
legal action is necessary by either party with respect to the enforcement of any or all of the terms
or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade
County, Florida. FPL and the City expressly waive any rights either party may have to a trial by
jury of any civil litigation related to or arising out of this Agreement.
7. The parties hereto represent and warrant that they have the authority to enter into this
agreement.
8. This Agreement shall be adopted by the City and Recorded in the Official Records of the
City.
IN WITNESS WHEREOF, the City and FPL have executed this Agreement for the
reimbursement for future relocation of the aforesaid electric facilities.
CITY OF AVENTURA
19200 West Country Club Drive
Aventura, FL ~ ~
By: (~ ~
Eric Soroka, City ~an~r
Date: ff/njV~
Approved as to legal form and sufficiency:
City Attomey
Attest: "~/~
[City Clerk
FLORIDA POWER & LIGHT COMPANY,
700 Universe Blvd.
Ju,~,~ Beacfi:~ 33408
(Print name and title)
Date:
STATE OF FLORIDA )
) SS
COUNTY OF MIAMI-DADE )
On this2~4h day of ~ lu/k ~ _ ,2003, before me personally appeared,
~ar',~etr~.. ~,~l ,~ O~r~ of Florida Pow~ & Li~t
Comply, a Florida co~oration, who is p~sonally ~ow to me ~ v .......
~ Mc.thq~.[~... ~d who did t~e ~ oa~ ~d d~oses ~d says,
· a~e executed the above ins~m~t ~d ac~owledged to me thane h~ the legal authority to
(