HomeMy WebLinkAboutR-2003-025 Encroachment Agreement Fire Station 93 RESOLUTION NO. 2003-025
A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA,
AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE
ENCROACHMENT AGREEMENTS ON BEHALF OF THE CITY OF
DANIA BEACH, WITH VARIOUS OWNERS OF PROPERTIES WHOSE
LANDS ABUT PROPERTY OWNED BY THE CITY, WHICH PROPERTY
IS COMMONLY KNOWN AS THE "FIRE STATION 93 SITE", SUBJECT
TO CERTAIN TERMS AND CONDITIONS; PROVIDING FOR
CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City owns certain property located north of Griffin Road and west
of SW 30th Avenue, which was acquired with the original intention of building a new fire
station Ito be known as the new "Fire Station 93"; and
WHEREAS, plans for such development have been postponed; and
WHEREAS, the City has determined, pursuant to an engineering survey, that a
number of various property owners, whose homes lie immediately adjacent to the south
and west property lines of the City site have various improvements, such as fences,
decks and portions of storage sheds which encroach to a limited degree upon the City's
land; and
WHEREAS, the City is willing to allow such owners to continue to maintain such
encroachments if such owners enter into encroachment agreements with the City, to
provide for the eventual removal of such encroachments, subject to certain conditions;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF DANIA BEACH, FLORIDA:
Section 1. That the City Commission of the City of Dania Beach, Florida,
approves the entry by City Officials into encroachment agreements on behalf of the City
of Dania Beach with various property owners whose properties lie adjacent to the Fire
Station 93 site, subject to certain items and conditions, and a copy of a standard
example of such agreement is attached as Exhibit "A" to this Resolution. The property
owners and descriptions of their respective encroachment are listed on Exhibit "B", a
copy of which is also attached to this Resolution.
F:/566001:/Resolutions:/Fire Station 93 1 RESOLUTION NO.2003-025
Section 2. That the proper City Officials are authorized to execute the
Agreements and the City Manager and City Attorney are authorized to make minor
revisions to such Agreements as are deemed necessary and proper and in the best
interest of the City.
Section 3. That all resolutions or parts of resolutions in conflict with this
resolution are repealed to the extent of such conflict.
Section 4. That this resolution shall be in force and take effect immediately
upon its passage and adoption.
PASSED AND ADOPTED on Febr OOR
003.
7ROT H. CHUNN, J . Y
MA — COMMISSIONER
ATTEST: ROLL CALL:
COMMISSIONER BERTINO - YES
C )0 COMMISSIONER MCELYEA -NO
• CHARLENE JO SON COMMISSIONER MIKES - YES
CITY CLERK VICE-MAYOR FLURY - NO
MAYOR CHUNN - YES
APPROVED AST FORM AND CORRECTNESS:
BY: r, -,AJ �
HOMAS J. ANSBRO
CITY ATTORNEY
F:/566001:/Resolutions:/Fire Station 93 2 RESOLUTION NO.2003-025
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Thomas J. Ansbro, Esq.
WEISS SEROTA HELFMAN
PASTORIZA& GUEDES,P.A.
3107 Stirling Rd, Suite 300
Ft. Lauderdale, FL 33312
(954)763-4242
ENCROACHMENT AGREEMENT
THIS ENCROACHMENT AGREEMENT (the "Agreement") is entered into and
effective on , 2003, between Thomas Cairns, whose address is 3041 SW
46th Court, Dania Beach, FL 33312, (the "Owner") and the City of Dania Beach, a Florida
municipal corporation whose address is 100 West Dania Beach Boulevard, Dania Beach, Florida
33004 (the "City").
RECITALS:
1. Owner is the owner of that certain improved real property located at 3041 SW 46th
Court, Dania Beach, Florida, and further described on Exhibit "A", a copy of which is attached
to this Agreement and made a part of it(the "Owner's Property"); and
2. City is the owner of a Earcel of unimproved real property located north of Griffin Rd.,
west of and adjacent to S.W. 30t Avenue and south of and adjacent to S.W. 45"' Street in the
City and further described on Exhibit "B", a copy of which is attached to this Agreement and
made a part of it (the "City's Property"); and
3. Owner is currently encroaching upon a portion of City's Property, and Owner seeks
permission for City to continue to allow Owner to encroach upon a portion of City's Property, all
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in
this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties,the parties agree as follows:
1. The foregoing Recitals are true and correct, and incorporated into this Agreement by
this reference.
2. Owner has an existing shed and chain link fence (the "Structures"), and a 0.3" portion
(or portions) of a corner of the shed and a 0.3' portion (or portions) of the chain link fence
encroach upon a portion of the City's Property as further described on Exhibit "C", a copy of
which is attached to this Agreement and made a part of it(the "Encroachment").
3. City acknowledges and agrees that Owner may continue to have the Encroachment on
City's Property pursuant to the terms contained in this Agreement. Owner shall bear all costs
associated with removal of the Encroachment when and if removal is required as set forth below.
4. City and Owner agree that the Encroachment shall only be permitted by City to
continue to encroach as shown until whichever of the following first occurs: (a) a period of two
(2) years from the date first appearing above; or (b) Owner sells the property owned by Owner;
or (c) City sends written notice to Owner to remove the Encroachment; or (d) such
Encroachment is wholly or partially destroyed; or (e) Owner seeks to make improvements to the
Structure which have a value of more than fifty percent (50%) of the value of the original
Structure. Upon the occurrence of such first event (that is, the expiration of the two (2) year
period, or such sale, or written notice from City, or, partial or total destruction or application to
make improvements of more than fifty percent (50%) of the value of the original Structure of
which the Encroachment forms a part), Owner shall be required to remove the entire
Encroachment and no further Encroachment shall be permitted. Owner also agrees that it shall
not improve more than fifty percent (50%) of the value of the Structure, a portion of which is
encroaching upon City property without removing the Encroachment.
5. Owner agrees to indemnify, defend (with counsel selected by City) and hold harmless
City, its officials, employees and agents, from and against any loss, damage or expense
(including all costs and reasonable attorneys' fees at both the trial and appellate levels) sustained
by City, its officials, employees and agents, now or in the future, as a result of(a) any breach or
failure by Owner to comply with the terms and conditions of this Agreement; or (b) any claims,
suits, actions, damages or causes of action arising out of any personal injury, loss of life or
property damage in connection with, related to, or arising, directly or indirectly, out of this
Agreement or the Encroachment. The provisions of this Section will survive the termination or
expiration of this Agreement.
6. Owner assumes all financial, administrative, and legal responsibility in connection
with, related to, or arising out of this Agreement or the Encroachment. Except as otherwise set
forth in this Agreement, City shall have no liability to Owner, or Owner's employees,
contractors, agents, guests and invitees in connection with this Agreement and Owner releases
the City with respect to the foregoing. Nothing in this Agreement will be construed to affect in
any way the City's rights, privileges, and immunities, including the monetary limitations of
liability which exist under the doctrine of "sovereign immunity" and as set forth in Section
768.28 of the Florida Statutes. The provisions of this Section will survive the termination or
expiration of this Agreement.
7. At all times during the terms of this Agreement, Owner, at its expense, shall keep or
cause to be kept in effect the following:
a. A general liability insurance policy, in standard form, insuring Owner and the
City as an "additional named insured", against any and all liability for bodily injury, death or
property damage arising out of or in connection with this Agreement and the license granted in
this Agreement with a policy limit of not less than Three Hundred Thousand Dollars
($300,000.00) combined single limits.
b. The insurance provided for in this Agreement: (i) shall be in the form and
substance approved by the Insurance Department of the State of Florida and the City's Risk
Management Consultant, (ii) shall be issued only by companies licensed by the Insurance
Department of the State of Florida, (iii) Certificates of Insurance pertaining to same shall be
delivered to City, on or before the date first appearing in this Agreement, (iv) shall be with a
carrier having an A Best's Rating of not less than A, Class VII, (v) shall bear endorsements
showing the receipt by the respective companies of the applicable premiums or shall be
accompanied by other evidence of payment of such, and (vi) shall provide that they may not be
canceled by the insurer for thirty (30) days after service of notice of the proposed cancellation
upon City and shall not be invalidated as to the interest of City and shall not be invalidated as to
• the interest of City by any act, omission or neglect of Owner. In any case where the original
policy of any such insurance shall be delivered to Owner, a duplicate original or certificate of
such policy shall be delivered to City. All insurance policies shall be renewed by Owner, and
certificates evidencing such renewals, bearing endorsements or accompanied by other evidence
of the receipt by the respective insurance companies of the premiums, shall be delivered to City,
at least thirty (30) days prior to their respective expiration dates.
8. It is understood that this Agreement is granted to Owner for Owner's sole benefit and
neither the Owner nor City intend to directly or substantially benefit a third party by this
Agreement. Therefore, the parties agree that there are no third party beneficiaries to this
Agreement and that no third party shall be entitled to assert a claim against either of them based
upon this Agreement.
9. This Agreement may be canceled by the City upon thirty (30) days written notice to
Owner. Removal of the encroachment shall then immediately be undertaken by Owner at
Owner's sole cost and expense. In the event Owner fails to remove all or any part of the
Encroaclunent within forty-five (45) days after written demand by the City to do so, City is
authorized to remove the Encroachment or any portion of it and all costs associated with the
removal shall become a lien against the Owner's Property, which lien may be enforced through
foreclosure and shall include court costs and reasonable attorneys' fees. Owner agrees to hold
City, including any of its officers, agents and employees, free and harmless for any claim of any
kind arising out of any such removal.
• 10. This Agreement shall not be effective until it has been executed by all parties and
recorded by City in the Public Records of Broward County, Florida, at Owner's sole cost and
expense. Immediately thereafter, a copy of the recorded Agreement shall forthwith be filed with
the City Clerk of City.
11. The provisions of this Agreement are covenants running with the land described as
Owner's property above, and are binding upon Owner and any respective successors and assigns.
12. Owner shall not commit nor permit any violation of any applicable federal, state,
county and municipal law, ordinance, resolution or governmental rule, regulation or order, as
may be in effect now or at any time during the term of this Agreement, all as may be amended,
which are applicable to City, Owner, the City's Property or the Encroachment. A violation of
any such law, ordinance, resolution, rule, regulation or order, as amended, shall constitute a
material breach of this Agreement, and in such event, City shall be entitled to exercise any and
all rights and remedies under this Agreement and at law and in equity, including removal of the
Encroachment as provided in paragraph 9, above.
U. All notices, demands, requests and other communications required under this
Agreement shall be given in writing and may be delivered by hand, or certified mail, return
receipt requested, or by a nationally recognized overnight delivery service such as Federal
Express, shall be deemed to have been given upon receipt or may also be sent by facsimile
provided that such is followed up by notice pursuant to one (1) of the three (3) methods in the
preceding sentence. Any party may designate a change of address by written notice to the other
party, received by such other party at least ten (10) days before such change of address is to
become effective.
If to City:
. City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, FL 33004
Attn: City Manager
With a copy to:
Tom Ansbro, Esq.
Weiss Scrota Helfman Pastoriza& Guedes, P.A.
3107 Stirling Rd., Suite 300
Fort Lauderdale, Florida 33312
If to Owner:
Thomas Cairns
3041 SW 46t" Court
Dania Beach, FL 33312
14. In the event of any litigation arising out of this Agreement, the prevailing party shall
be entitled to recover its attorneys' fees and costs, including the fees and expenses of any
paralegal, law clerks, and legal assistants, and including fees and expenses charged for
representation at the trial level, in all appeals, and in any bankruptcy proceedings.
• 15. Owner shall not assign this Agreement or its right to use any part of the
Encroachment.
16. This Agreement, including the attached exhibits, contains all of the terms, covenants,
conditions and agreements between City and Owner relating in any manner to the Encroachment
on City's Property. No prior agreement or understanding pertaining to the same shall be valid or
of any force or effect, and the terms, covenants, conditions and provisions of the Agreement shall
not be altered, changed, modified or amended, except in writing signed by City and Owner.
17. Nothing contained in this Agreement shall be deemed in any way to constitute City or
Owner a partner of the other in its business or otherwise, or a joint venturer or a member of a
joint enterprise with the other.
18. This Agreement may be executed in two or more counterparts, each of which
constitutes the agreement of the parties and each of which will be treated as an original.
19. If any term, covenant, condition or provision of this Agreement (or the application of it
to any circumstance or person) shall be held or determined to be invalid or unenforceable to any
extent, the remaining terms, covenants, conditions and provisions of this Agreement shall not be
affected; and each remaining term, covenant, condition and provision of this Agreement shall be
valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the
remaining terms, covenants, conditions and provisions of this Agreement would prevent the
accomplishment of the original intent of the agreement between the parties.
20. City cannot, and specifically does not, waive or relinquish any of its regulatory
approval or enforcement rights and obligations as it may relate to regulations of general
applicability which may govern Owner's Property, City's Property or the Encroachment.
Nothing in this Agreement shall be deemed to create an affirmative duty of City to abrogate its
® sovereign right to exercise its police powers and governmental powers by approving or
disapproving or taking any other action in accordance with its ordinances, rules and regulations,
federal laws and regulations and state laws and regulations.
21. City and Owner each warrant and represent to the other that the individuals signing
this Agreement on behalf of the City and Owner, respectively, have full power and authority to
execute and deliver the Agreement and to bind the respective parties to this Agreement. Owner
further warrants and represents that, by executing this Agreement, Owner has the full authority to
bind any and all other co-Owners of the Owner's Property.
22. Owner acknowledges and agrees that the Encroachment onto the City's Property does
not in any way constitute or establish any form of tenancy under Florida law. Owner waives any
claims that its use of the Encroachment constitutes a tenancy or possession of any kind under
Florida law.
23. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT
SHALL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE. THE
PARTIES AGREE THAT VENUE FOR ANY LEGAL ACTION INSTITUTED IN
CONNECTION WITH THIS AGREEMENT SHALL BE IN BROWARD COUNTY,
FLORIDA. THE PARTIES 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.
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals,
effective the day and year first written above.
Witness: OWNER:
Signature
Print Name: Name: Thomas Cairns
Signature
Print Name:
•
CITY:
• CITY OF DANIA BEACH, a Florida municipal
corporation
By:
Ivan Pato, City Manager
Attest:
City Clerk
Approved:
City Attorney
FOR CITY:
STATE OF FLORIDA
COUNTY OF BROWARD
THIS IS TO CERTIFY, that on 2003, before me, an officer duly
authorized to take acknowledgements in the State and County aforesaid, personally appeared Ivan
Pato, as City Manager, of the City of Dania Beach, a Florida municipal corporation, on behalf of
• the City who is (check one) [ ] personally known to me or [ ] produced
as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
FOR OWNER:
STATE OF FLORIDA
COUNTY OF BROWARD
THIS IS TO CERTIFY, that on 2003, before me, an officer duly
authorized to take acknowledgements in the State and County aforesaid, personally appeared
Thomas Cairns, who is (check one) [ ] personally known to me or [ ] produced
as identification.
• NOTARY PUBLIC
Print Name:
My Commission Expires:
•
•
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FLORIDA
OCA., �
® COURTESY NOTICE
January 2, 2003
Property Owners:
We encourage your attendance at the January 28, 2003 Regular Commission meeting
where a Public Hearing will be conducted to adopt a Resolution as follows:
"A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA,
AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE
ENCROACHMENT AGREEMENTS ON BEHALF OF THE CITY OF
DANIA BEACH, WITH VARIOUS OWNERS OF PROPERTIES WHOSE
LANDS ABUT PROPERTY OWNED BY THE CITY, WHICH PROPERTY
IS COMMONLY KOWN AS THE "FIRE STATION 93 SITE", SUBJECT TO
• CERTAIN TERMS AND CONDITIONS; PROVIDING FOR CONFLICTS;
FURTHER, PROVIDING FOR AN EFFECTIVE DATE."
A copy of the advertised Public Hearing Notice has been attached along with a sample
copy of the Resolution and Encroachment Agreement impacting your property.
,If you require any assistance to participate in any of the proceedings, please do not
hesitate to contact me at 954-924-3622.
Sincerely,
-har ene Joh on
City Clerk
"Broward's First City'
100 West Dania Beach Boulevard Dania Beach, Florida 33004 Phone: (954) 921-8700 www.ci.dania-beach.fl.us
SUN- SENTINEL
PUBLISHED DAILY
FORT LAUDERDALE, BROWARD COUNTY, FLORIDA NOTICE
RE HEARING
BOCA RATON, PALM BEACH COUNTY, FLORIDA COMMISSION
® MIAMI, MIAMI DADE COUNTY, FLORIDA c ,
'DANIA BEAACCH,FLORIDA
REGARDING ADOPTION OF
THE FOLLOWING PRO-
POSED RESOLUTION:
NOTICE IS HEREBY GIVEN
STATE OF FLORIDA that the City Commission
l
COUNTY OF BROWARD PALM BEACH/MIAMI DADE F the city of Dania Beach,
Florida, on January 28,
BEFOR E E GNED AUTHORITY, PERSONALLY APPEARED 2003, at 7:00 p.m. or as
:>oon thereafter as the
rmatter may be heard,will
WHO,ON OATH,SAYS THAT conduct i public hearing
H HE IS A DUL AUTHORIZED REPRESENTATIVE OF THE CLASSIFIED in the city commission
room of the Dania Beach
City Hall, too West Dania
PARTMENT OF THE SUN-SENTINEL, DAILY NEWSPAPER PUBLISHED Beach Boulevard, Dania
IN BROWARD/PALM BEACH/MIAMI DADE COUNTY,FLORIDA, AND THAT THE Beach,Florida to consider
the proposed adoption of
ATTACHED COPY OF ADVERTISEMENT, BEING A: the following Resolution
entitled:
A RESOLUTION OF THE
CITY OF DANIA BEACH,
ADOPTION HEARING JAN.28,2003 FLORIDA, AUTHORIZING
THE PROPER CITY OFFI-
CIALS TO EXECUTE EN-
IN THE MATTER OF: CROACHMENT AGREE-
MENTS ON BEHALF OF THE
CITY OF DANIA BEACH,
Adoption Hearing Jan.28 2003 WITH VARIOUS OWNERS
OF PROPERTIES WHOSE
LANDS ABUT PROPERTY
IN THE CIRCUIT COURT,WAS PUBLISHED IN SAID NEWSPAPER IN THE OWNED BY THE CITY,
WHICH PROPERTY IS COM
ISSUES OF: MONLY KNOWN AS THE:
"FIRE STATION 93 SITE
SUBJECT TO CERTAIN:
TERMS AND CONDITIONS;,
01/09,S,13 11236500 PROVIDING FOR CON-:
FLICTS: FURTHER. PRO-'
VIDING FOR AN EFFECTIVE'_
AFFIANT FURTHER SAYS THAT THE SAID SUN-SEIIJTINEL IS A NEWSPAPER DATE.
sed
PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, Reso copy
is onis file n the
AND THAT THE SAID NEWSPAPER HAS HERETOFORE BEEN CONTINUOUSLY city Clerk Department„
City Hall, 100 West Dania:
® PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, Beach Boulevard, Dania.
Beach, Florida, and may
EACH DAY,AND HAS BEEN ENTERED AS SECOND CLASS MATTER AT THE be inspected by the public:
during normal working:
POST OFFICE IN FORT LAUDERDALE,IN SAID BROWARD COUNTY, FLORIDA,
hours.
FOR A PERIOD OF ONE YEAR NEXT PRECEDING THE FIRST PUBLICATION OF Interested parties may ap-
pear at the aforesaid
ATTACHED COPY OF ADVERTISEMENT;AND AFFIANT FURTHER SAYS THAT meeting and be heard
HE/SHE HAS NEITHER PAID,NOR PROMISED,ANY PERSON,FIRM, OR with respect toti the pro
posed Resolution. Any
CORPORATION,ANY DISCOUNT,REBATE,COMMISSION,OR REFUND, FOR THE person who decides to ap-
PURPOSE OF SECURING THIS ADVERTISEMENT FOR PUBLICATION IN SAID the Icity commissiondwbh
respect to any matter con-
NEWSPR. n need a record ot this f theg .
pro-
ceedings and for such pur-
pose may need to ensure
that a verbatim record of.
GNATURE OF AFFIANT) the proceedings is made,'
which record includes the
testimony and evidence
SWORN TO AND SUBSCRIBED BEFORE ME upon which the appeal is
to be based.
ON: 13-January-2003 , A.D. In accordance with the
� / American with Disabilities
Act, persons needing as-
sistance to participate in
any of the proceedings
P Z' 4&:a� should contact Charlene
(SIONATURZ OF NOTARY PU8LIq Johnson, Acting City
Clerk, too West Dania
Tara L.Bezak Beach Boulevard, Dania
Beach, Florida 33004,
MV COM",JISSION# DD024939 EXPIRES (954)924-3622 at least 48
20.ZOOS hours prior to the meet-
lul ing.
�•.. ,? c.vr: e:'-oy i AIN 1NS'j9ANCE,INC Charlene Johnson,CMC
City Clerk
January 09,13,2003
(NAME OF NOTARY,TYPED, PRINTEDr STAMPED)
PERSONALLY KNOWN OR
® PRODUCED IDENTIFICATION
® CITY OF DANIA BEACH
MEMORANDUM
TO: Mayor and Commissioners
cc: Ivan Pato, City Manager
Kenneth Land, Fire Chief
FROM: Tom Ansbro, City Attorney
DATE: December 4, 2002
RE: Proposed Encroachment Agreement for "Fire Station 93" Site
Attached is a revised version of a standard Encroachment Agreement. To address
Commission concerns raised at the last (November 26, 2002) Commission meeting and by the
Fire Chief, the Agreement now provides:
® 1) that the "Encroachment" (typically, a ortion of a fence must be removed p ) o ed
whenever the first of the following occurs: the current "Owner" sells his or her
property; or the City sends written notice directing the removal; or the
"Structure" is wholly or partially destroyed, or the Owner seeks to improve the
Structure (improvements amounting to more than 50% of the value of the
original Structure); whichever first occurs;
2) the Owner agrees to indemnify and hold harmless the City from any injury, loss
of life or property damage;
3) the Owner must provide liability insurance naming and protecting the City;
4) the Agreement is non-transferable to any other person; and
5) the City may remove the Structure and file a lien upon the Owner's property for
removal costs if not timely removed after City's written demand.
The only encroachment which included an above-ground pool has been removed from the
City's property (removal and relocation approved by the Building Official on August 19,
2002).
• This is now read for City Commission y yapproval.
Ivan Pato
August 16, 2002
Page 2 of 2
566.001
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