HomeMy WebLinkAboutItem 11 Consideration for Construction and Maintenance Agreement with Oaks of Windermere Subdivision centet of Good Ll,
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AGENDA ITEM COVER SHEET
Meeting Date: July 19, 2005
Item #
Reviewed By:
Contact Name: David A. Wheeler, P.E. Department Director: C,
Contact Number: 407-905-3100, ext. 1504 City Manager:
Subject: Approval of the Construction & Maintenance Agreement Oa dermere verflow
Pipe
Background Summary:
The Oaks of Windermere subdivision is located in unincorporated Orange County at the eastern end of Moore
Road. The development was designed, permitted, and constructed under Orange County development standards
and in compliance with St. Johns River Water Management District regulations.
City staff and our consultant that designed the 7th Avenue road improvements have worked closely with Madden
Engineering, Inc. and the Oaks of Windermere HOA on the design of the overflow pipe and the permitting through
Orange County, St. Johns River Water Management District, and the City of Ocoee. The Oaks of Windermere's
overflow pipe will only discharge when their stormwater system is above their 100-year flood elevation. As a part
of the permitting process staff has asked that a Construction & Maintenance Agreement for the overflow pipe be
executed and in place prior to the start of construction. The agreement sets forth conditions for the construction and
the maintenance of the overflow pipe into the future.
Issue:
The approval of the Construction & Maintenance Agreement for the Oaks of Windermere so that the construction
can commence on the pipe installation.
Recommendations
Staff recommends that the City Commission approve the Agreement and authorize the Mayor and City Clerk to
execute the Construction and Maintenance Agreement Oaks of Windermere Overflow Pipe.
Attachments:
The Construction and Maintenance Agreement for the Oaks of Windermere Overflow Pipe is attached.
Financial Impact:
The City should not be expending any money for maintenance of the overflow pipe unless the HOA fails to meet
their obligations of the Agreement and then the City would perform the repairs and bill the Oaks of Windermere
HOA.
Type of Item: (please mark with an "x")
Public Hearing For Clerk's Dept Use:
Ordinance First Reading Consent Agenda
Resolution Public Hearing
X Commission Approval Regular Agenda
flicni Iccinn R.flirontinn
Original Document/Contract Attached for Execution by City Clerk
X Original Document/Contract Held by Department for Execution
Reviewed by City Attorney Approved by e-mail N/A
Reviewed by Finance Dept. X N/A
Reviewed by ( ) N/A
Mayor ece tex of Good Lip Commissioners
S. Scott Vandergrift Danny Howell, District 1
Scott Anderson, District 2
City Manager Rusty Johnson, District 3
Robert Frank `` Nancy J. Parker, District 4
STAFF REPORT
TO: The Honorable Mayor and City Commissioners
FROM: David A. Wheeler, P.E., City Engineer
DATE: July 12, 2005
RE: Approval of the Construction & Maintenance Agreement for the Oaks of Windermere Overflow
Pipe
ISSUE
The Oaks of Windermere, a neighboring community to Ocoee is experiencing a stormwater flooding condition
again this year. The HOA is requesting that Ocoee allow the installation of an overflow pipe to allow their
stormwater system to discharge excess water through the City and on to Lake Down. Staff has negotiated a
Construction and Maintenance Agreement for the Oaks of Windermere Overflow Pipe. Staff recommends that
the City Commission approve the Agreement and authorize the Mayor and City Clerk to execute the
Construction and Maintenance Agreement Oaks of Windermere Overflow Pipe.
BACKGROUND/DISCUSSION
The Oaks of Windermere subdivision is located in Orange County at the eastern end of Moore Road. The
development was designed, permitted, and constructed under Orange County development standards and
according to St. Johns River Water Management District regulations.
The development's stormwater system is a landlocked system (ie: it has no outfall). The development has
experienced flooding over the past several years, either from regular rainfalls or from the hurricanes of last year.
The City allowed the Home Owners Association and/or its representatives to pump out its stormwater system
and discharge it into the stormwater system on Maguire Road and drain through the City's system and on to
Lake Down during the hurricanes of last year.
The development's original design engineer has designed a overflow pipe that will drain south in the 7th Avenue
right-of-way to the Orange County ditch that parallels Thornbrooke Road and flows west to the wetlands and
onto the Maguire Road system and on to Lake Down. The overflow pipe will pick excess water above the 100-
year flood elevation. The Oaks of Windermere stormwater system will retain the 100-year storm event and
discharge water for a greater event or from multiple events. See attached map.
City staff and our consultant that has designed the 7th Avenue road improvements have worked closely with
Madden Engineering, Inc. and the Oaks of Windermere HOA on the design of the overflow pipe and the
permitting through Orange County, St. Johns River Water Management District, and the City of Ocoee. As a
part of the permitting process staff has asked that a Construction & Maintenance Agreement for the overflow
pipe be executed and in place prior to the start of construction. The agreement sets forth conditions for the
construction and the maintenance of the overflow pipe into the future.
Staff is continuing to negotiate this agreement and will present it at the City Commission meeting. Because of
the emergency pumping that the HOA is currently performing, staff is working to accommodate the HOA.
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THIS INSTRUMENT PREPARED BY
Paul E.Rosenthal,Esq.
FOLEY&LARDNER LLP
111 North Orange Avenue, Suite 1800
Post Office Box 2193
Orlando,Florida 32802-2193
(407)423-7656
THIS INSTRUMENT SHOULD BE
RETURNED TO:
Beth Eikenberry, City Clerk
City of Ocoee
150 N. Lakeshore Drive
Ocoee,Florida 34761
For Recordin• Pur s oses Onl
CONSTRUCTION & MAINTENANCE AGREEMENT
OAKS OF WINDERMERE OVERFLOW PIPE
THIS AGREEMENT (this "Agreement") is made and entered into this day of
, 2005 by and between the OAKS OF WINDERMERE HOMEOWNERS
ASSOCIATION, INC., a Florida not-for-profit corporation, whose address is 2180 W. SR 434,
Suite 5000, Longwood, Florida 32779 (hereinafter referred to as the "HOA"), and the CITY OF
OCOEE, a political subdivision of the State of Florida, whose address is 150 North Lakeshore
Drive, Ocoee, Florida 34761 (hereinafter referred to as the "CITY.")
WITNESSETH:
WHEREAS, the HOA wishes to construct and maintain a gravity stormwater overflow
pipe and related components (collectively, the "Stormwater Pipes") along the 7th Avenue right-
of-way, from the Oaks of Windermere Subdivision to the Orange County ditch along
Thornebrooke Avenue (the "HOA Project'); and
WHEREAS, the HOA has represented to the CITY that the Stormwater Pipes have been
designed per all applicable standards and specifications meeting the State of Florida, Orange
County, and City requirements; and
WHEREAS, a portion of the HOA Project is to be constructed within right-of-way
owned by the CITY(the "City ROW"); and
WHEREAS, subject to the terms conditions and limitations set forth herein, the CITY is
willing to allow the HOA to construct the HOA Project within the City ROW.
7/8/05
006.378449.2
NOW THEREFORE, the HOA and the CITY, for the considerations hereafter set forth,
agree as follows:
1. The above recitals are true and correct, form a material part of this Agreement and are
incorporated herein by reference.
2. The HOA, or entity acting on behalf of the HOA, shall contract with a licensed
Contractor to construct the HOA Project in accordance with plans and specifications
prepared by a professional engineer and permitted by the CITY and all other
governmental entities having jurisdiction with respect thereto. Any modification to the
HOA Project as permitted by the City shall require the prior approval of the City.
Contractor shall meet the CITY's insurance requirements and provide a Certificate of
Insurance naming the CITY as additional insured.
3. The HOA shall obtain a Right-of-Way Utilization Permit from the City and from Orange
County with respect to the HOA Project. This Agreement is subject to the terms and
conditions of such Right-of-Way Utilization Permits. In the event of any conflict
between this Agreement and such Right-of-Way Utilization Permits, the provisions of
such Right-of-Way Utilization Permits shall control.
4. The HOA shall be responsible for performing all routine and emergency maintenance
work to insure the Stormwater Pipes and the HOA Project are in proper working
condition subject to CITY inspection of said activities. HOA or their authorized
representative shall notify the City's Public Works Department at least 48 hours prior to
commencing any maintenance activities. Should the HOA fail to properly operate,
maintain or repair the Stormwater Pipes in accordance with all applicable requirements or
fail to maintain insurance as set forth above, then the CITY shall have the right to take
such actions as are reasonably necessary to correct the violations and may charge the
HOA therefor. The HOA shall reimburse the CITY for the costs thereof within thirty
(30) days of receipt of an invoice for any such expenses incurred by the CITY. The HOA
hereby accepts all liability and responsibility for operation, maintenance and repair of the
Stormwater Pipes.
5. Notwithstanding any provision contained herein to the contrary, the CITY may, at its
option, elect to assume responsibility for the maintenance and repair of the Stormwater
Pipes in the event the CITY in its sole judgment determines that an emergency situation
exists require immediate maintenance or repair. In such event, the HOA shall remain
responsible to reimburse the City for the reasonable cost of any such maintenance and
repair within thirty (30) days of receipt of an invoice for such expenses.
6. The City may, in its discretion, temporarily plug the Stormwater Pipes if the City, in its
discretion determines that such action is warranted based on the conditions in the ditch
into which such Stormwater Pipes discharge.
7. Subject to revocation of the Right-of-Way Utilization Permits described above and
removal of HOA's facilities within the City ROW, the HOA shall, at its sole cost and
expense, repair any damage to (i) the City ROW or any County right-of-way, (ii) the real
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006.378449.2
or personal property of other land owners adjacent to City ROW, and (iii) the property of
entities who may have facilities within the City ROW, which damage results from the
construction and/or maintenance activities relating to the HOA Project or otherwise
arising under this Agreement, such damage to be repaired to the satisfaction of the CITY
and the owner of the damaged property.
8. The HOA shall, at its sole cost and expense, restore any improvements on the City ROW
that are damaged by the HOA incident to its construction of the HOA Project to a
condition which approximates as closely as is reasonably practicable the condition of said
improvements prior to being damaged by the HOA.
9. The HOA agrees to indemnify and hold harmless the CITY from and against any and all
claims, actions, causes of action, loss, damage, injury, liability, cost or expense, including
without limitation attorneys' fees and paralegal fees (whether incurred before, during or
after trial, or upon any appellate level), arising from the HOA's use of the City ROW or
from the exercise by the HOA of any rights granted by this Agreement or from the
design, construction, and maintenance activities related to the gravity stormwater
overflow pipe and related components that are the subject matter of this Agreement. The
HOA acknowledges that the CITY does not warrant or represent that the HOA Project
will function and operate as contemplated by the HOA and that it is relying on its own
engineer's with respect thereto and not upon any review or approval by the CITY.
10. Unless a notice of change of address is given, any and all notices shall be delivered to the
parties at the following addresses:
City
• Public Works Director
City of Ocoee
150 N. Lakeshore Drive
Ocoee, Florida 34761
HOA
Property Manager
Oaks of Windermere Homeowners Association, Inc.
2180 W. SR 434, Suite 5000
Longwood, FL 32779
11. The HOA and it's authorized contractor (s) shall be insured for Worker's Compensation
claims, or will secure and maintain during the course of construction of the HOA Project,
Workers' Compensation Insurance for all of its employees connected with the work of
the HOA Project. If any work is subcontracted, the HOA shall require the subcontractor
similarly to provide Workers' Compensation Insurance for all of the latter's employees.
In case any class of employees engaged in hazardous work under this Agreement is not
protected under Workers' Compensation statutes, the HOA shall provide, and cause each
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006.378449.2
subcontractor to provide, adequate insurance satisfactory to the CITY, for the protection
of his employees not otherwise protected.
12. This Agreement represents the entire agreement of the parties. Any alterations,
variations, changes, modifications or waivers of provisions of this Agreement shall only
be valid when they have been reduced to writing, and duly signed by each of the parties
hereto, unless otherwise provided herein. All modifications are subject to the mutual
agreement of both parties as evidenced in writing.
13. The parties agree that at any time following a request therefore by another party, each
shall execute and deliver to the other party such further documents and instruments, in
form and substance reasonably necessary to confirm and/or effectuate the obligations of
each of the parties hereunder.
14. Nothing in this Agreement shall be construed to prevent the HOA from seeking
indemnification or from bringing any claim against any entity other than the CITY or
Orange County related to the Stormwater Pipes should they fail to function and operate as
contemplated by this Agreement.
15. This Agreement shall be binding upon and inure to the benefit of the parties specified
herein, their respective legal representatives, successors and assigns. Each party warrants
and represents to the other that it has been duly authorized to execute this Agreement.
16. The parties hereto agree that an executed original of this Agreement shall be recorded by
the CITY, at the HOA's expense, in the Public Records of Orange County, Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed
through their duly authorized signatories on the day and year above written.
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006.378449.2
Signed, sealed and delivered in the OAKS OF WINDERMERE
presence of: HOMEOWNERS ASSOCIATION, INC.
BY:
Print Name:
Name:
Title:
Print Name:
(CORPORATE SEAL)
STATE OF FLORIDA )
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid, to take acknowledgements, personally appeared
, well known to me to be the , of the OAKS
OF WINDERMERE HOMEOWNERS ASSOCIATION, INC. and that he acknowledged
executing the same in the presence of two subscribing witnesses freely and voluntarily under
authority duly vested in him by said corporation, and who ❑ is personally known to me, or who
❑ produced as identification, and who
acknowledged that he executed the foregoing instrument freely and voluntarily for the uses and
purposes expressed therein.
WITNESS my hand and official seal in the County and State last aforesaid this day
of , 2005.
Signature of Notary
Name of Notary(Typed, Printed or Stamped)
Commission Number(if not legible on seal):
My Commission Expires (if not legible on seal):_
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006.378449.2
CITY OF OCOEE, FLORIDA:
ATTEST:
Beth Eikenberry, City Clerk By:
S. Scott Vandergrift, Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE,FLORIDA COMMISSION AT A MEETING HELD
APPROVED AS TO FORM AND ON ,2005
LEGALITY this day of UNDER AGENDA ITEM NO.
,2005
FOLEY& LARDNER LLP
By:
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared S. Scott Vandergrift
and Beth Eikenberry, well known to me to be the Mayor and City Clerk, respectively, of the
CITY OF OCOEE, a Florida municipal corporation, and that they severally acknowledged
executing the same in the presence of two subscribing witnesses freely and voluntarily under
authority duly vested in them by said municipality. They are personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid this day
of ,2005.
Signature of Notary
Name of Notary(Typed,Printed or Stamped)
Commission Number(if not legible on seal):
My Commission Expires (if not legible on seal):
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006.378449.2