BRADENTON BEACH – The fully signed agreement between the city and developer Shawn Kaleta for the maintenance of the coconut palm trees on and around Bridge Street was signed by Mayor John Chappie on May 28 and placed into the public record that day.
That comes more than a month after the trees were planted the week of April 24 in a public-private partnership between the city and Kaleta.
On May 29, City Clerk Terri Sanclemente provided The Sun with a copy of the agreement signed by Chappie, Kaleta – as Beach to Bay Construction LLC manager – and Sanclemente as witness. The Sun made multiple requests for the document beginning on May 6.
The maintenance, indemnification and hold harmless agreement in a public-private partnership between the City of Bradenton Beach and Kaleta, through his LLC, designates responsibility for the tree maintenance to Kaleta and indemnifies the city in the event of injury or damage from the trees.
Public-private partnerships between cities and developers are unique to Bradenton Beach among the three Anna Maria Island cities.
Both Mayor Dan Murphy of Anna Maria and Mayor Judy Titsworth of Holmes Beach responded to The Sun’s email asking if either city had partnered with a private entity for city projects.
“If you define a public-private partnership as a “capital improvement project with the city getting dollar funding from a developer” the answer is no, we have had none that I can recall during my tenure of 10 years as mayor. I don’t think we’ve ever had a developer give us any money for a project,” Murphy wrote.
Titsworth wrote, “We have not, to my recollection.”
The partnership with Kaleta for the palm trees’ maintenance and indemnification was approved unanimously on April 3 by the Bradenton Beach Community Redevelopment Agency (CRA).
At that meeting, City Attorney Ricinda Perry assured CRA members that the agreement would be signed by Kaleta prior to the trees being planted.
CRA member Jan Vosburgh expressed concern about the trees’ safety and maintenance.
“I believe everything the city does should be as maintenance-free as possible,” Vosburgh said. “It sounds to me like we’re making a nightmare for the city and the businesses.”
Ultimately, following assurances by Perry that a signed agreement would be in place, Vosburgh voted to approve the agreement, making it a unanimous vote.
In addition to Chappie and Vosburgh, Deborah Scaccianoce, Marilyn Maro, Ed Chiles and Chair Ralph Cole make up the CRA.
OUT OF ORDER
It is unclear when Kaleta signed the agreement.
The city clerk provided The Sun a copy of the receipt for the April 10 $10,000 payment from Kaleta, but based on correspondence between City Attorney Ricinda Perry and Kaleta’s attorneys, it does not appear that he signed the agreement prior to the planting of the palm trees the week of April 24.
On April 25, Kaleta attorney Sean Kelly sent an email to Perry that said, “Shawn asked me to finalize this agreement for the coconut palms on Bridge Street. Will you please send me the Exhibit A site plan and the dollar amount for the CRA’s contribution? Then I can update the document and have Shawn sign. Thanks!”
On May 9, Perry sent an email to Kelly copied to Kaleta that said, “Good morning. It took me a bit to find a way to document in a ‘site plan’ the palms and to make sure we knew exactly where Miguel was planting everything. I ended up flying my drone and then inserting stars where palms are located with a description for areas that have multiple palms at or near an address.” “Miguel” refers to Miguel Mancera, the owner of M&F Lawn Care, Inc., the company that planted the palm trees, who has not yet been paid for his work (see story, page 9).
On May 14, Kaleta attorney, Rainier Altiere, sent Perry an email that said, “Here is the completed maintenance agreement. The only thing missing is the start date. Please provide me with that and let me know if this is OK for us to have Shawn sign.”
On May 15, Perry sent Kaleta, Kelly and Altiere an email that referenced an unnamed limited liability corporation (LLC) Kaleta intended to use as the CRA’s project partner and the party responsible for maintaining the coconut palms for the next 30 years.
“This corp (corporation) named in the document was set up at the end of last month. Is it just a ‘shell company’ with no assets or insurance to cover the harm/damage caused by a falling coconut? At a minimum, the company will need an insurance policy naming the city that actually covers damage caused by the coconuts. I can’t just have a piece of open (missing word) with no actual protection for the public. Ideas?” Perry wrote.
On May 15, The Sun emailed Perry requesting a copy of the fully signed and fully executed agreement. In her May 15 response, Perry wrote, “There is a signed agreement. The clerk is out of the office and can provide further documents upon her return.”
On May 29, Perry sent an email to Sanclemente and Chappie that addressed the date Sanclemente and Chappie signed the agreement.
“Contracts have counterpart signatures that most always have differing dates – hence the reason contracts ALWAYS state an effective date. The effective date controls contracts. In this instance, I always stated that the effective date would be when the date trees were being delivered. The city did not pick nor write the date but found the effective date to be acceptable and within the approval of the CRA. Standard contract law. Feel free to forward to anyone needing legal contract law information,” Perry wrote.
The effective date of the agreement is April 1, which is two days before its approval by the CRA at its April 3 meeting. The city did not respond to The Sun’s request for an explanation of the earlier effective date.
“The city of Bradenton Beach Community Redevelopment Agency (CRA) has approved a CRA beautification project on Bridge Street to be installed at a cost not to exceed forty thousand and no/dollars ($40,000) to be paid for by the CRA and ten thousand and no/dollars ($10,000) to be paid for by the Sponsor (Kaleta). All trees installed in this beautification project shall be maintained at the sole cost of Sponsor,” the agreement states.
The agreement will be in place for 30 years with options to renew every 10 years.
According to the signed agreement, “Sponsor shall at its sole cost and expense maintain the permitted installation in good condition. The city makes no warranties or representation of any kind regarding the suitability of this public property/right-of-way location for the proposed installation.”
The signed agreement includes indemnification language that states, “As consideration for use of the city’s public property to install coconut palm trees, the Sponsor (Kaleta) shall at all times, at its expense, hold harmless and indemnify the city, its officers, employees, agents, elected and appointed officials, and volunteers from and against any and all claims, demands, liens, liabilities, penalties, fines, fees, judgments, losses and damages whether or not a lawsuit is filed, including, but not limited to claims for damage to property or bodily or personal injuries, including death.”
The indemnification language also states that Kaleta is responsible for any costs, expenses and attorney fees associated with a claim or lawsuit associated with the coconut palm trees.
According to the Cornell Law School Legal Information Institute, “To indemnify, also known as indemnity or indemnification, means compensating a person for damages or losses they have incurred or will incur related to a specified accident, incident or event. Typically, parties make a written agreement in which one party promises to indemnify the other party for future specified losses.”
On May 31, The Sun received a copy of Kaleta’s proof of insurance with $1 million in liability per occurrence for personal injury, $5,000 for medical expenses per person, $100,000 damage to rented premises and $2 million general aggregate coverage. The policy expires on Sept. 9.
The insured is listed as Beach to Bay Investments, 102 48th St., Holmes Beach and the producer of the policy is Gulf Insurance, LLC, 301 Manatee Ave. in Holmes Beach.
The Sun has requested an updated site plan since the location of some of the trees has changed due to their FDOT-mandated May 24 removal from Gulf Drive South, a state road.
As of May 31, that site plan has not been received.
According to the maintenance, indemnification and hold harmless agreement Exhibit B, Kaleta’s company is responsible for: “Removing fronds, fruit, seedpods and fruit stalks carefully without damaging the trunk or fronds that are to be retained. All coconut fruit must be removed once it produces on the tree.”
The guidelines continue, “Pruning will be required a minimum of two times a year on municipal property and rights-of-way to manage the hazards of falling coconuts and fronds and to minimize the risk to persons and property within the fall zone.”
People on the Anna Maria Island Sun Facebook page had plenty of comments about the palm trees and the agreement.
Wendy Holcomb wrote, “Not a good idea EVER to put coconut trees where pedestrians walk and vehicles drive.”
Richard Becker wrote, “All this over a palm tree. It’s not about the palm tree, it’s about the politics.”
“Indemnify means to ‘make right again’ not ‘protect,’ so if the city lost a case, Team K would have to pay them back, the settlement ck (check) has to come from the defendant,” Susan Paxton wrote.
According to recent city Scenic WAVES committee meeting agendas, the CRA board did not request a preliminary project review from the city commission-appointed committee
The Scenic WAVES committee acts as the commission’s advisory board on proposed landscaping and beautification projects.
Related coverage:
Editorial: Signed palm tree agreement better late than never
Palm tree landscaper awaiting payment from city
Editorial: Palm trees and other shady endeavors
FDOT: Wrong trees, wrong place
Expert outlines optimum coconut palm maintenance
Signed palm tree agreement remains elusive
