HomeMy WebLinkAboutIII(C) Approval And Authorization For Mayor to Execute Traffic Enforcement Agreement With Wesmere Maintenance Association, Inc Agenda 4-06-99
Item III C
FOLEY & LARDNER
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SACRAMENTO
DENVER ORLANDO, FLORIDA 32802-2193 SAN DIEGO
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LOS ANGELES ORLANDO,FLORIDA 32801-2386 TALLAHASSEE
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244-3245
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scookson@foleylaw.com 020377-0107
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MEMORANDUM
TO: The Honorable Mayor and City Commissioners of the City of Ocoee
FROM: Scott A. Cookson, Assistant City Attorney
THROUGH: Paul E. Rosenthal, Esq., City Attorney
DATE: April 1, 1999
RE: Traffic Enforcement Agreement with Wesmere
Attached is a Traffic Enforcement Agreement ("Agreement") relating to enforcing the
Uniform Traffic Control Laws within the Wesmere subdivision. Execution of this Agreement
would allow the City to enforce the traffic laws upon the private roads within Wesmere. The
Agreement has been reviewed, approved and executed by the Wesmere Maintenance
Association, Inc. (the "Association"). The City staff is recommending approval.
By way of background, municipalities traditionally had no authority to enforce the
traffic laws on private roads such as the roads within the Wesmere subdivision. However,
during the 1987 legislative session, the legislature enacted an amendment to the Florida
Uniform Traffic Control Law which supplied additional authority for municipal law
enforcement officers to enforce traffic laws on certain private property under certain
conditions. This amendment is contained in Florida Statute §316.006(2)(b) which provides in
part:
A municipality may exercise jurisdiction over any private road or roads . . .
located within its boundaries if the municipality and party or parties owning or
controlling such road or roads provide, by written agreement approved by the
governing body of the municipality, for municipal traffic control jurisdiction
over the road or roads encompassed by such agreement . . . .
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Foley & Lardner
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Thus, in accordance with Florida law, it is permissible for the City to have its police
officers enforce the traffic laws over private roads within the City as long as the City and the
party owning or controlling the road enter into a written agreement for traffic control
jurisdiction. In most cases, such an agreement would be entered into with the homeowner's
association.
Additionally, 8 316.006(2)(b) also provides that:
Provision for reimbursement for actual costs of traffic control and enforcement
and for liability insurance and indemnification by the party or parties, and such
other terms as are mutually agreeable, may be included in such an agreement.
While it appears from a reading of the statute that seeking reimbursement for costs is merely
permissible, one Attorney General opinion indicated that seeking reimbursement for the listed
costs is obligatory. In opining as to §316.006(2)(b), the Attorney General read the statute as
requiring the municipality to seek reimbursement for the actual costs of traffic control and
enforcement and for liability insurance and indemnification. According to the Attorney
General's interpretation of the statute, the word "may" in §316.006(2)(b) referred only to the
provision allowing the parties to include additional mutually agreeable terms in the traffic
enforcement agreement and not the reimbursement provision.
While the Attorney General's opinion is merely persuasive rather than authoritative,
our research revealed no cases applying or interpreting §316.006(2)(b). Thus although it is
clear that the City may enter into an agreement to enforce traffic laws on private roads, it is
less clear whether the City is obligated to provide for reimbursement for associated costs, or
whether such reimbursement is merely permissible. Our recommendation is that the City
follow the Attorney General's opinion.
The enclosed Agreement is consistent with the statute and the Attorney General
Opinion. Highlights are as follows:
1. The City, is authorized to enforce the traffic laws within
Wesmere, however, the Agreement does not require any minimum level of
staffing nor create any priority for traffic enforcement vis-a-vis public
roadways. (Section 2 and Section 3).
2. The Association pays the City an Initial Fee of $810.00
to cover expenses relating to installing appropriate traffic control signs within
Wesmere. (Section 5).
3. The Association pays an Annual Fee to the City for
providing the traffic enforcement services. The initial Annual Fee is set at
$750.00 but may be adjusted after the first six (6) months. (Section 6).
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006.133653.2
Foley & Lardner
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4. The Association agrees to indemnify the City for Claims
arising out of the City entering into the Agreement. The indemnification does
not apply to acts of negligence on the part of the City. (Section 7).
5. The Agreement may be terminated by either party upon
sixty (60) days notice. (Section 8).
Recommendation
It respectfully is recommended that the Mayor and City Commissioners approve the
attached Traffic Enforcement Agreement and authorize execution thereof by the Mayor and
City Clerk.
006.133653.2
TRAFFIC ENFORCEMENT AGREEMENT
(WESMERE)
THIS TRAFFIC ENFORCEMENT AGREEMENT ("Agreement") is made
and entered into as of the day of , 1999 (the "Effective Date") by and
between WESMERE MAINTENANCE ASSOCIATION, INC. whose mailing address is
501 Wesmere Parkway, Ocoee, Florida 34761 (hereinafter referred to as the "Association")
and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150
North Lakeshore Drive, Ocoee, Florida 34761 (hereinafter referred to as the "City").
WITNESSETH:
WHEREAS, the Association is a not-for-profit corporation existing pursuant to
and in accordance with Florida Statutes §§ 617.301-617.312; and
WHEREAS, the Association owns and/or controls those private roads within
the Wesmere'subdivision which is located in Orange County, Florida, and,-within the corporate
limits of the City of Ocoee, Florida, said private roads being those roads within the Wesmere
Planned Unit Development (hereinafter referred to as the "Private Roads"); and
WHEREAS, Florida Statutes § 316.006(2)(b) authorizes the City,' subject to
certain provisions, to enter into an agreement with the Association whereby the Association
grants unto the City traffic control jurisdiction over the Private Roads within the subdivision
controlled by the Association; and
WHEREAS, Florida Statutes § 316.640(3) authorizes the City to require that
the City police department enforce the traffic laws of the State of Florida on any private roads
pursuant to a written agreement under Florida Statutes § 316.006(2)(b); and
WHEREAS, the Association and the City desire to have the Association grant
unto the City traffic control jurisdiction over the Private Roads as authorized by Florida
Statutes § 316.006(2)(b) so that the City may enforce the traffic laws of the State of Florida on
the Private Roads; and
WHEREAS, this Agreement has been duly approved and authorized by the
Association in accordance with its Articles of Incorporation, Bylaws and other applicable
governing documents.
NOW, THEREFORE, in consideration of the premises and other good and
valuable considerations exchanged between the parties hereto, 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 incorporated
herein by this reference.
006.123378.8
Section 2. Traffic Control Jurisdiction. The parties agree that the City shall
have traffic control jurisdiction over the Private Roads and that officers of the City police
department are authorized to enter upon the Private Roads for the purpose of exercising this
jurisdiction. Such jurisdiction shall give to the City the authority to enforce the Florida
Uniform Traffic Control Laws on the Private Roads. The exercise of jurisdiction provided for
herein shall be in addition to jurisdictional authority presently exercised by the City under law,
and nothing in this Agreement shall be construed to limit or remove any such jurisdictional
authority. Such existing jurisdiction includes, but is not limited to, the regulation of access to
the Private Roads by security devices or personnel.
Section 3. Traffic Enforcement. The City hereby agrees that the City police
department will enforce the Florida Uniform Traffic Control Laws on the Private Roads;
provided, however, that the foregoing shall not be construed to require any minimum level of
staffing or create any priority for traffic enforcement on the Private Roads vis-a-vis public
roadways or other private roads. All decisions regarding the level of traffic enforcement on
the Private Roads and staffing related thereto shall be within the sole discretion of the City
police department.
Section 4. Traffic Control Signs. The Association hereby grants to the City
the right, privilege and easement to enter upon the Private Roads and common areas within the
Wesmere subdivision for the purpose of installing such traffic control signs and other traffic
control apparatus as the City may deem to be necessary for the enforcement of traffic laws on
the Private Roads.
Section 5. Initial Fee. Upon execution of this Agreement by the Association,
the Association shall pay to the City an Initial Fee of $810.00. The parties agree that this
Initial Fee shall cover all of the expenses incurred by the City in preparing the Private Roads
for traffic enforcement. Such expenses include, but are not limited to, the placing of traffic
control signs along the Private Roads.
Section 6. Traffic Enforcement Fee. In consideration for the City exercising
traffic control jurisdiction over the Private Roads, the Association hereby agrees to pay to the
City an annual Traffic Enforcement Fee ("Annual Fee"). The initial Annual Fee under this
Agreement will be set at $750.00 and shall be prorated based on the Effective Date and due
and payable within thirty (30) days from the Effective Date of this Agreement. ' The parties
agree that during the first six (6) months of this Agreement, the City will monitor the level of
traffic enforcement services actually provided and the actual costs in carrying out this
Agreement. After this initial six (6) month period, the City may increase or decrease the
Annual Fee based on the results of its findings; however, in no event shall the Annual Fee
exceed $1,500.00. Any increase or decrease in the Annual Fee after the first six (6) months
shall not be applied retroactively to affect the fee apportioned to the first six (6) months of this
Agreement. In the event the City increases the Annual Fee after the initial six (6) month
period, the amount of the increase, taking into account any prorations based on the Effective
Date, shall be due and payable within thirty (30) days from receipt of notice of the increase.
In the event the City decreases the Annual Fee after the initial six (6) month period, the
006.123378.8 -2-
amount of the decrease, taking into account any prorations based on the Effective Date, will be
refunded to the Association. Each subsequent Annual Fee, or prorated portion thereof, shall
be due and payable on or before January 30 of each year in which traffic enforcement services
are rendered. The parties hereby agree that the Annual Fee is made as reimbursement for (i)
the actual costs of traffic control and enforcement, (ii) the costs associated with maintaining the
traffic control signs and apparatus, and (iii) the additional liability insurance costs incurred by
the City as a result of this Agreement.
Section 7. Indemnification. The Association hereby agrees to indemnify and
save the City harmless from and against all losses, costs, expenses, claims, damages,
judgments, liabilities and causes of action whatsoever (collectively, "Claims") including
reasonable attorneys' fees and paralegal fees, both at trial and at appellate levels, arising out of
or alleged to have arisen out of the City entering into this Agreement. Nothing herein shall be
construed to include within the foregoing indemnity any liability on the part of the Association
for Claims arising out of acts of negligence by the City. The City shall use its best efforts to
promptly notify the Association in writing of any Claims based on this Agreement and shall
provide the Association with information regarding the Claims based on this Agreement as the
Association may reasonably request, but the failure to give such notice or provide such
information shall not diminish the obligations of the Association under this Section. No
Claims whatsoever shall be made or asserted against the City by the Association for or on
account of anything done or as a result of anything done or omitted to be done in connection
with this Agreement.
Section 8. Term; Termination. The term of this Agreement shall be two (2)
years from the Effective Date (the "Term"); provided, however, that this Agreement may be
terminated by either party upon sixty (60) days written notice to the address first appearing in
this Agreement. In the event of termination by either party the Association is entitled to a pro
rata refund of the Annual Fee paid for the year in which termination occurs. In the event the
Association desires to extend the Term of this Agreement, the Association shall provide
written notice to the City of its desire to do so on or before the December 15` immediately
preceding expiration of the Term.
Section 9. Applicable Law. This Agreement and the provisions contained
herein shall be liberally construed and interpreted according to the laws of the State of Florida.
Section 10. Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties, and supersedes all previous discussions, understandings and
agreements, with respect to the subject matter hereof. Amendments to and waivers of the
provisions of this Agreement shall be made by the parties only in writing by formal
amendment.
Section 11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
006.123378.8 -3-
Section 12. Captions. Captions of the Sections and Subsections of this
Agreement are for convenience and reference only, and the,words contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this Agreement.
Section 13. Severability. If any sentence, phrase, paragraph, provision or
portion of this Agreement is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct .and independent
provision and such holding shall not affect the validity of the remaining portion hereof.
Section 14. Effective Date. The Effective.Date of this Agreement shall be the
date first appearing in this Agreement and shall coincide with the date the Agreement is
executed by the City.
IN WITNESS WHEREOF, the Association and the City have caused this
instrument to be executed by their duly authorized officers as of the day and year first above
written.
ASSOCIATION
Signed, sealed and delivered WESMERE MAINTENANCE
in the presence of : ASSOCIATION, INC.
-ZIA A By:
`am Name: f�r��b P r • P , cc:
Print Name: LO,_{, cCA 1 ) - +F'k Title: e /d eo �
Ate. ,
(CORPORATE SEAL)
Print Name: /Lt ic* i-0c - Executed on:
006.123378.8 -4-
STATE OF FLORIDA
COUNTY OF O 4 f
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State and County aforesaid to . take acknowledgments, personally appeared
as PiLe,v-c-,4e.n„D` of WESMERE
1V1AINTEN E ASSOCIATION, INC., and who [,Q is personally known to me or [
produced as " identification, and that he/she acknowledged
executing the same in the presence of two subscribing witnesses, on behalf of said corporation,
freely and voluntarily, for the uses and purposes therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this
o? day of ,.1999.
•
ignature of Notar
/3Girbt r
Name of Notary (Typed, Printed or Stamped)
Commission Number(if not legible on seal):
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My Commission Expires(if not legible on l Ari_ IMNI 1MN1111I77i1!)llllJl)lmmy
, rU® Barbara Reitz
4 N : Notary Public,State of Florida
CITY: commission No.CC s16254
Of it &ty Commission Expires 12/05/99
t 400.3.NOTARY•Ftn.Notary Service&Bending Co.)
Signed, sealed and delivered in the CITY OF OCOEE, FN"'"""»11»»»»»»»»»»»
presence of:
By:
S. Scott Vandergrift, Mayor
Print Name:
Attest:
Jean Grafton, City Clerk
• (SEAL)
Print Name: Executed on:
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA.
Approved as to form and legality
This _ day of , 1999. •
Foley & Lardner
By:
City Attorney
006.123378.8 -5-
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 JEAN GRAFTON, personally known to me to be the Mayor and City
Clerk, respectively, of the CITY OF OCOEE, FLORIDA 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.
WITNESS my hand and official seal in the County and State last aforesaid this
day of , 1999.
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):
006.123378.8 -6-