HomeMy WebLinkAboutIII (C) Approval and Authorization for Mayor and City Clerk to execute Western Beltway: Indemnity Agreement with Orlando-Orange County Expressway Authority AGENDA 9-3-96
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FOLEY & LARDNER Item
ATTORNEYS AT LAW
CHICAGO POST OFFICE BOX 2193 SAN DIEGO
JACKSONVILLE ORLANDO,FLORIDA 32802-2193 SAN FRANCISCO
LOS ANGELES 111 NORTH ORANGE AVENUE,SUITE 1800 TALLAHASSEE
MADISON ORLANDO,FLORIDA 32801-2386 TAMPA
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SACRAMENTO FACSIMILE(407)648-1743 WEST PALM BEACH
WRITER'S DIRECT LINE
MEMORANDUM
TO: The Honorable Mayor and City Commissioners
of the City of Ocoee FROM: Paul E. Rosenthal, Esq. , City Attorney ell"
DATE: August 29, 1996
RE: Western Beltway - Indemnity Agreement with Orlando -
Orange County Expressway Authority
At the request of the Orlando-Orange County Expressway
Authority, the City Commission has previously adopted Resolution
No. 95-19 which approved the route of the Western Beltway to the
extent located within the corporate limits of the City. The
Resolution was required pursuant to the provisions of Section
348.754 (4) , Florida Statutes. In connection with the adoption of
the Resolution, the City required that the Expressway Authority
enter into an indemnity agreement protecting the City against all
claims, suits, or allegations of taking and/or inverse condemnation
relating to the City's approval of the route and adoption of the
Resolution. Attached hereto is a proposed Agreement between the
City of Ocoee and Orlando - Orange County Expressway Authority
which complies with the requirements of the City of Ocoee. The
Agreement has been approved by the Expressway Authority. In our
opinion, the proposed Agreement satisfies the conditions of
approval established by the City.
RECOMMENDATION
It respectfully is recommended that the Mayor and City
Commissioners approve the Agreement between the City of Ocoee and
the Orlando - Orange County Expressway Authority and authorize
execution thereof by the Mayor and City Clerk, and further find
that such Agreement satisfies the requirement for an indemnity
agreement previously established by the City Commission.
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A GREEMENT
THIS AGREEMENT ("Agreement") is entered on the Effective Date (as hereinafter
defined) by and between the City of Ocoee , Florida, a municipal corporation
organized and existing under the laws of the State of Florida (the "City"), and Orlando-Orange
County Expressway Authority, an agency of the State of Florida (the "OOCEA").
WHEREAS, OOCEA has identified the planning and construction of the Western
Beltway as a priority for OOCEA; and
WHEREAS, Section 348.754(4) of the Florida Statutes mandates that OOCEA shall not
initiate right-of-way acquisition for an OOCEA project within the boundaries of any municipality
in Orange County, Florida, until the route of said project within said municipality has been
approved by the municipality; and
WHEREAS, a portion of the proposed route of the Western Beltway lies within the
boundaries of the City, a municipality located in Orange County, Florida; and
WHEREAS, the City desires to join other Cities in Orange County and other applicable
governmental agencies, in assisting and cooperating in the advancement and completion of the
Western Beltway for the benefit of the City and all of Orange County, and has called upon all
interested citizens and affected property owners to cooperate fully to expedite this essential
roadway and to minimize the impact of the Western Beltway, both monetarily and physically;
and
WHEREAS, the City, in a public meeting, duly authorized, attested its desire to provide
support for the Western Beltway and its approval of the proposed route for the Western Beltway
and has duly adopted a resolution providing support for the Western Beltway and approval of
the proposed route for the Western Beltway in accordance with Section 348.754(4), Florida
Statutes conditioned upon an agreement indemnifying and holding harmless the City from all
claims, suits or allegations of taking and/or inverse condemnation relating to the City's approval
of the route and adoption of its resolution; and
WHEREAS, in consideration of the foregoing, OOCEA has agreed to indemnify and
hold harmless and defend the City from and against any claim, action, cause of action, damages,
judgments, awards, costs and expenses (including attorneys' and paralegals' fees and costs for
prelitigation, litigation and on appeal) arising from any claim of taking and/or inverse
condemnation resulting from the City's adoption of the above-referenced resolution and the
City's approval pursuant to Section 348.754(4), Florida Statutes, of the proposed route for that
portion of the Western Beltway planned within the City boundaries (the "Proposed Route"), as
more particularly set forth hereinbelow.
NOW, THEREFORE, for and in consideration of the foregoing premises, and other
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good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are incorporated herein
by this reference.
2. Covenant to Hold Harmless and Defend. OOCEA has obtained approval by the
City of the Proposed Route in compliance with the requirements of Section 348.754(4), Florida
Statutes, and the City has given such approval in order to allow OOCEA to comply with said
statute. The Proposed Route has been approved by the City for planning purposes and the City's
approval of the Proposed Route does not, and is not intended to, evidence any intent by the City
or OOCEA to purchase, acquire, encumber, take or condemn any property in connection
therewith. OOCEA covenants and agrees to indemnify, hold harmless and defend the City from
and against any claim, action, cause of action, damages,judgments, awards, costs and expenses
(including attorneys' and paralegals' fees and costs for prelitigation, litigation and on appeal)
for any claim or allegation of taking and/or inverse condemnation resulting solely from the
City's approval of the Proposed Route or resolution as required by and pursuant to Section
348.754(4), Florida Statutes. There shall be no construction or interpretation of this Agreement
which shall expand, enlarge or increase the scope of OOCEA's indemnification liability beyond
the singular action of the City in adopting the Proposed Route and resolution as hereinabove
described. Notwithstanding the foregoing, OOCEA shall not be relieved of its obligations to
indemnify, hold harmless and defend the City if OOCEA or any other governmental entity shall
be named as a party to such claim or action. Notwithstanding anything to the contrary contained
herein, in the event of any such claim or action resulting from and solely attributable to the
City's approval of the Proposed Route pursuant to Section 348.754(4), Florida Statutes, OOCEA
(at its expense) shall select counsel approved by OOCEA (in its sole and absolute discretion) to
defend OOCEA and the City against such claim or action. The City has the right to select and
employ, as the City's sole cost and expense, additional counsel to participate in such claim or
action. The covenants and agreements contained in this paragraph are intended solely for the
benefit of the parties hereto and are not intended to establish or create any rights or benefits for
any other persons or entities. Nothing contained herein shall constitute, or be deemed to
constitute (i) a commitment by OOCEA to purchase or otherwise acquire any property within
the Proposed Route, or (ii) an admission of liability of OOCEA to any third parties with respect
to any claims, actions or causes of action arising out of the designation and approval of the
Proposed Route or the planning, right-of-way acquisition and construction of the Western
Beltway or any portion thereof.
3. Notice of Claim. Whenever a claim for indemnification arises under this
Agreement as a result of a third-party claim of taking and/or inverse condemnation resulting
solely from the City's approval of the Proposed Route as required by and pursuant to Section
348.754(4), Florida Statutes, or adoption of the resolution approving same (any such claim
hereinafter referred to as a "Covered Claim"), the City shall promptly notify OOCEA in writing
of the Covered Claim, and, if and when known, the facts constituting the basis for the Covered
Claim and the amount or an estimate of the amount of the liability arising therefrom. The City
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shall not negotiate, settle or compromise or enter into any binding agreement to settle or
compromise, or consent to entry of any judgment arising from any Covered Claim except in
accordance with this Agreement. The City shall give OOCEA prompt notice of any Covered
Claim and OOCEA shall undertake and provide for the defense of the Covered Claim, and only
the Covered Claim. In the event OOCEA (within a reasonable time after receipt of a notice of
a Covered Claim) fails to defend the Covered Claim, the City shall have the right to undertake
the defense, compromise or settlement of the Covered Claim at the expense of the OOCEA.
Neither the City nor OOCEA shall, without the written consent of the other, settle or
compromise any Covered Claim or consent to entry of any judgment for any Covered Claim that
does not include (as an unconditional term thereof) the giving by the claimant or the plaintiff to
both the City and OOCEA an unconditional release from all liability with respect to the Covered
Claim.
4. Notices. Any notices which may be permitted or required hereunder shall be in
writing and shall be deemed to have been duly given as of the date and time the same with
required copies are personally delivered, or within three (3) days after depositing with the United
States Postal Service, postage prepaid by first-class mail and registered or certified mail, return
receipt requested, or within one (1) day after depositing with Federal Express or other overnight
delivery service from which a receipt may be obtained, and addressed as follows:
To OOCEA: Orlando-Orange County Expressway Authority
Attn: Executive Director
525 South Magnolia Avenue
Orlando, Florida 32801-4414
Copy to: Broad and Cassel
390 North Orange Avenue, Suite 1100
Orlando, Florida 32801
Attn: C. David Brown, II, P.A.
Copy to: Akerman, Senterfitt & Eidson, P.A.
Post Office Box 231
Orlando, Florida 32802
Attn: Thomas T. Ross
To City: City of Ocoee
150 North Lakeshore Drive
Ocoee, FL 34761
Attn: City Manager
Copy to: Foley & Lardner
111 N. Orange Avenue, Suite 1800
Orlando, FL 32801
Attn: Paul E. Rosenthal , Esq.
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or to such other address as either party hereto shall from time to time designate to the other
party by notice in writing as herein provided.
5. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the transactions contemplated herein, and it supersedes all prior
understandings or agreements between the parties.
6. Governing Law. This Agreement shall be governed by, and construed under the
laws of the State of Florida.
7. Execution and Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all taken together shall constitute one and the same
Agreement.
8. Effective Date. When used herein, the phrase "Effective Date" shall mean the
last date that either OOCEA or the City execute this Agreement.
9. Severability. If any portion of this Agreement is determined by a court of
competent jurisdiction to be void, invalid, ineffective, ultra vires or unconstitutional, the
remainder of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the City and OOCEA have caused this Agreement to be
made and executed as of the Effective Date.
"CITY"
City of Ocoee , Florida,
APPROVED BY THE OCOEE CITY a municipal corporation organized and
COMMISSION AT A MEETING HELD existing under the laws of the State of
ON , 19 Florida
UNDER AGENDA ITEM NO.
By:
S. Scott Vandergrift ,Mayor
DATE:
ATTEST:
By:
Jean Grafton , City Clerk
Ref uae phd reliance billy
RE\12842\0002\RFMRFM02.06A by the City of Ocoee,
960606-5:25pm 4 Approved as to Form Iftla weft
this day of ',$$,
41 .
FOLEY & LAR®
9y
City Attorney •
"OOCEA"
Orlando-Orange County Expressway
Authority, a public corporation organized
and existing under the laws of the State of
Florida
WITNESSES:
By:
Harold W.Worrall,Executive Director
Print Name
Print Name DATE:
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