HomeMy WebLinkAboutVI(N) Discussion/ Action Re: Completion Of Clarke Road - Silvestri Property AGENDA 11-05-96
Ocoee Item VI N
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OF GoO JAMES W.SHIRA,P.E.
CITY ENGINEER/UTILfI'IES DIRECTOR
150 N.LAKESHORE DRIVE•OCOEE,FLORIDA 34761
PHONE(407)656-2322 EXT.142•FAX(407)656-7835
MEMORANDUM
DATE: November 1, 1996
TO: The Honorable Mayor and Board of City Commissioners
FROM: James W. Shira, P.E.
City Engineer/Utilitie irector
SUBJECT: Completion of Clarke Road - Silvestri Property
Attached for your review and action is an agreement between the City of Ocoee and Silvestri
Investments of Florida, Inc. which relates to the completion of Clarke Road including the
intersection of Clarke Road and Clarcona-Ocoee Road.
The referenced Development Agreement required that the city acquire whatever additional lands
as might be needed in order to construct this project. Plans for the project were developed by
Silvestri's engineer and were approved by Orange County and the city. Those plans would have
required that the city acquire property from at least three individual property owners along either
Clark Road or Clarcona-Ocoee Road in order to construct the project. It became evident that at
least one of the acquisitions would not take place without a potentially lengthy and expensive
eminent domain process.
In order to save time and money,the city elected to have the intersection redesigned to eliminate
the need for any of the additional lands. This redesign was performed by the original design
engineer for a fee of $7,000.00. I must stress that the original intersection design was no less
acceptable than the redesigned intersection, but that the engineer had no way to know that the
additional lands required by the original design would not be easily obtainable.
The redesigned intersection has resulted in an increase in the contract amount due to the need for
additional pond excavation, additional and larger diameter pipes, and other increases in quantities
and labor. This increased amount is $91,190.03 which is the city's cost to bear. This amount
will need to be paid from the Road Impact fee fund, and may be adjusted up or down by
approved change orders. It is my opinion that this amount is less than the city would have
expended in an eminent domain action against the owners of the originally required additional
lands. We would have been responsible for all appraisal costs and attorney's fees, both ours and
those of all of the other owners, as well as the final agreed upon value of all of the additional
lands.
I recommend that the City Commission approve and authorize the Mayor and City Clerk to
execute this Agreement Regarding Completion of Clarke Road and authorize the expenditure of
the city's cost from Road Impact fee funds..
THE PRIDE OF WEST ORANGE
AGREEMENT REGARDING COMPLETION OF CLARKE ROAD
THIS AGREEMENT REGARDING COMPLETION OF CLARKE ROAD (this
"Agreement") is made and entered into as of the day of , 1996 by and between
SILVESTRI INVESTMENTS OF FLORIDA, INC., a Florida corporation ("Developer") and
the CITY OF OCOEE, a Florida municipal corporation ("the City").
WITNESSETH:
WHEREAS, the Developer and the City entered into a certain Development Agreement
dated June 18, 1991 as amended by First Amendment thereto dated December 13, 1994 and as
further amended by Second Amendment thereto dated October 3, 1995 ("the Development
Agreement"); and
WHEREAS, pursuant to the Development Agreement, the Developer is obligated to
construct Phase II of the Developer's Clarke Road Segment and the Clarke Road/Clarcona-Ocoee
Road Intersection Improvements (collectively, the "Phase II Project"); and
WHEREAS, pursuant to the Development Agreement, the Developer has submitted to
the City plans for the Phase II Project ("the Phase II Plans") and the City has approved the
Phase II Plans as being in compliance with the requirements of the Development Agreement; and
WHEREAS, pursuant to the Development Agreement, the Developer has submitted to
the City construction contracts with C.A. Meyer Paving and Construction Co. ("the Contractor")
for the construction of the Phase II Project (collectively, "the Phase II Construction Contracts")
and the City has approved the Phase II Construction Contracts; and
WHEREAS, the Phase II Construction Contracts have a total fixed price of$340,474.17
("the Original Contract Price") in order to complete construction of the Phase II Project in
accordance with the Phase II Plans; and
WHEREAS, pursuant to the Development Agreement, the City is required to acquire
such additional land as is necessary for the construction of the Phase II Project in accordance
with the Phase II Plans; and
WHEREAS, the City has acquired, at the City's expense, the land needed for Phase II
of the Developer's Clarke Road Segment, but.has not acquired the lands needed for the
construction of the Clarke Road/Clarcona-Ocoee Road Intersection Improvements and certain
drainage improvements in accordance with the Phase II Plans; and
WHEREAS, in order to avoid the cost, expense and time delay associated with the
acquisition of the remaining lands necessary for construction of the Clarke Road/Clarcona-Ocoee
Road Intersection Improvements and certain drainage improvements in accordance with the
Phase II Plans, the City, at the City's expense, has proceeded to have the Phase II Plans
redesigned and repermitted in order to eliminate the need for the acquisition of additional lands
beyond those already acquired by the City; and
WHEREAS, the City has agreed to pay the increased costs of construction of the Phase
II Project resulting from the redesign of the Phase II Plans.
NOW, THEREFORE, in consideration of the mutual premises contained herein, and
other good and valuable considerations, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Recitals. The above recitals are true and correct and are incorporated herein
by reference.
Section 2. Terms. All terms used herein are as defined in the Development Agreement
unless otherwise indicated.
Section 3. Approval of Final Plans in Construction Contract. The City hereby
approves the following revised plans for the Phase II Project: See Exhibit "A" attached hereto
and by this reference made a part hereof (collectively, "the Revised Phase II Plans"). Further,
the City hereby approves the construction contract(s) dated November 1, 1996 between the
Developer and the Contractor in the total amount of$431,644.20 for completion of construction
of the Phase II Project in accordance with the Revised Phase II Plans ("the Revised Phase II
Construction Contracts").
Section 4. Additional Cost. The City hereby acknowledges that the additional cost to
the Developer in order to have the Contractor construct the Phase II Project in accordance with
the Revised Phase II Plans, rather than the Phase II Plans, is $91,190.03 ("the Additional
Cost"), subject to upward or downward adjustment by change orders approved by both the City
and the Developer.
Section 5. Payment. The Developer reaffirms its obligation to pay to the Contractor
the Original Contract Price as required by the Development Agreement. The City hereby agrees
to pay to the Contractor the Additional Cost, subject to upward or downward adjustment by
change orders approved by both the City and the Developer. The amount to be paid by the City
to the Contractor shall be paid upon request of the Developer, provided, however, that the
Developer shall first have paid the Original Contract Price to the Contractor and submitted to
the City appropriate documentation thereof(i.e., proof of payment from Contractor) and that the
payment draw shall have been approved and be due to the Contractor as provided under the
provisions of the Revised Phase II Construction Contracts. The City shall make such payment
within twenty (20) calendar days of receipt of any such request. If the City fails to make any
such payment when due, then the City shall be responsible for all interest and late charges due
from the Developer to the Contractor as a result of the City's failure to make such payment.
The Developer shall not be entitled to Road Impact Fee credits with respect to the Additional
Cost paid by the City.
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Section 6. Fill. The Developer shall be entitled to and shall receive all fill generated
by the construction of the Phase II Project in accordance with the Revised Phase II Plans. The
fill shall be disposed of within the Developers' Prairie Lake Subdivision in accordance with the
direction of the Developer.
Section 7. Certificates of Occupancy. The City hereby acknowledges that the
Developer shall be entitled to obtain Certificates of Occupancy for the property which is the
subject of the Development Agreement upon commencing construction of the Phase II Project
in accordance with the Revised Phase II Plans and providing the City with an irrevocable letter
of credit in the penal sum of 115% of the Original Contract Price; provided, however, that the
Developer shall otherwise comply with all applicable provisions of the Ocoee City Code which
are conditions precedent to the issuance of Certificates of Occupancy.
Section S. Attorney's Fees. The City and the Developer shall each bear their own
attorney's fees and costs in connection with this Agreement and the construction contracts with
the Contractor.
Section 9. Specific Performance. This Agreement will be enforceable by an action for
specific performance. In the event it becomes necessary for either party to bring an action to
enforce its rights under this Agreement, the prevailing party shall be entitled to recover its
reasonable attorney's fees, paralegal fees and costs, at both the trial and appellate levels. It is
further agreed that the City will be responsible to reimburse the Developer for its reasonable
attorney's fees and costs incurred in defending any action brought by the Contractor against the
Developer arising out of the failure of the City.to perform its obligations under this Agreement.
Section 10. Conflicts. In the event of any conflict between this Agreement and the
Development Agreement, it is agreed that this Agreement shall control.
IN WITNESS WHEREOF, the Developer and the City have caused this Agreement to
be executed by their duly authorized officers or representatives as of the day and year first above
written.
DEVELOPER:
SILVESTRI INVESTMENTS OF
FLORIDA, INC., a Florida corporation
By:
Gustavo F. Silvestri
Vice President
Dated: , 1996
(CORPORATE SEAL)
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CITY:
CITY OF OCOEE, a Florida municipal
corporation
By:
•
S. Scott Vandergrift, Mayor
Attest:
Jean Grafton, City Clerk
Dated: , 1996
(SEAL)
FOR USE AND RELIANCE ONLY APPROVED BY THE OCOW CITY
BY THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING
APPROVED AS TO FORM AND LEGALITY HELD ON , 1996
this day of , 1996. UNDER AGENDA NO.
FOLEY & LARDNER
By:
City Attorney
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EXHIBIT "A"
Construction Plans for Clarke Road/Clarcona Road Intersection Improvements
consisting of sheets 1 through 6, all signed, sealed and dated November 4, 1996
by Hugh W. Harling, Jr., Florida Professional Engineer, #11629.
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