HomeMy WebLinkAboutItem #07 Approval of Sleepy Harbour Lift Station Service and Maintenance Agreement
AGENDA ITEM COVER SHEET
Meeting Date: January 20, 2009
Item # 7
Contact Name:
Contact Number:
Charles K. Smith, P.E.
407 -905-3100 ext. 4000
Reviewed By:
Department Director: Charles K. Smit
City Manager: Robert Frank
Subject: Sleepy Harbour Lift Station Service and Maintenance Agreement
Background Summary: The Sleepy Harbour Condominium Association has a private sanitary
sewer Lift Station which historically has been maintained by the City for a nominal annual fee of
$888.00. The Condominium Association and Staff would like to formalize an agreement for the
City's continued maintenance of the station. The agreement will establish a monthly maintenance
fee and levels of service to be provided. In addition, the agreement provides for indemnification
and access rights to the station.
If the agreement is not approved, Utilities recommends the maintenance responsibilities revert to
the Condominium Association.
Issue:
Should the City, through a formal agreement, agree to provide long-term maintenance of the Sleepy
Harbour Condominium private Lift Station for a monthly fee of $274.42?
Recommendations
Motion to accept the Agreement and authorize the Mayor to execute the Agreement.
Attachments:
Service and Maintenance Agreement.
Financial Impact:
See the attached Memo to Job File which provides a monthly maintenance fee based on the City's historical
level of service provided for the station.
Type of Item: (please mark wifh an "x'J
Public Hearing
_ Ordinance First Reading
_ Ordinance Second Reading
Resolution
_ Commission Approval
Discussion & Direction
For Clerk's Deaf Use:
_ Consent Agenda
_ Public Hearing
_ Regular Agenda
----J.- Original Document/Contract Attached for Execution by City Clerk
_ Original Document/Contract Held by Department for Execution
Reviewed by City Attorney
Reviewed by Finance Dept.
Reviewed by ( )
N/A
N/A
N/A
COpy
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Nicholas N. Palmer, Esq.
FOLEY & LARDNER LLP
111 North Orange Avenue, Suite 1800
Post Office Box 2193
Orlando, FL 32802-2193
(407) 423-7656
SERVICE AND MAINTENANCE AGREEMENT
(Slee>>v Harbour Lift Station)
TIllS SERVICE AND MAINTENANCE AGREEMENT (this "Agreement") .
is made, dated and effective as of . 2008 (the "Effective Date"),
by and between the CITY OF OCOEE, whose address is 150 North Lakeshore Drive,
Ocoee, Florida, 34761 (the "City"), and SLEEPY HARBOUR CONDOMINIUM
ASSOCIATION, INC., a Florida not-for-profit corporation, whose mailing address is
408-0 Orlando Avenue, Ocoee, Florida 34761 (the "Association").
WITNESET H:
WHEREAS, the Association, on behalf of its members, operates, manages and
maintains that certain real property located in the City ofOcoee, Orange County, Florida,
more particularly described on Exhibit "A" attached hereto and by this reference made a
part hereof (the "Lift Station Property");
WHEREAS, the Association, on behalf of its members, operates, manages and
maintains those certain lift station and related improvements described on Exhibit "B"
attached hereto and by this reference made a part hereof (the "Lift Station
Improvements");
WHEREAS, the Association has requested that the City operate, manage and
maintain the Lift Station Improvements; and
WHEREAS, the City has agn;ed, subject to the terms hereof: to operate, manage
and maintain the Lift Station Improvements.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by reference.
2. Maintenance. The City agrees to operate, manage, maintain, repair,
and/or reconstruct, as the City and its assigns may deem necessary, the Lift Station
Improvements~ all in accordance with applicable codes and ordinances. The Association
hereby grants to the City an easement and such other rights over~ across~ on and above the
Lift Station Property that may be necessary for the City to accomplish the foregoing. The
easement shall be perpetual unless terminated in accordance with paragraph 5 of this
Agreement.
3. Standard of Care. In connection with its exercise of its obligations
under Section 2 above the City shall (i) use the same standard of care used by the City in
connection with City owned and operated lift stations~ and (ll) be liable for any damage
caused by the City or its representatives in the same manner and to the same extent as the
City would be liable in connection with damage caused by the City or its representatives
in the course of opemtion~ management~ maintenance~ repair andlor reconstruction of City
owned and operated lift stations. Any such liability for damages shall survive the
termination of this Agreement with respect to damages which arose prior to the effective
date of any such termination.
4. Maintenance Fee.
(a) In exchange for the services provided by the City pursuant to this
Agreement~ the Association shall pay to the City a monthly fee in the amount of
$274.42 per month (the "Maintenance Fee~~). The Maintenance Fee may be
included on the City's monthly utility bill sent to the Association or set forth on a
separate monthly bill provided by the City. The Maintenance Fee shall be paid in
the manner set forth in Section 173-4(B) of the Ocoee City Code, and shall be
subject to all of the procedures, requirements~ remedies for non-payment, and
other provisions applicable to the City~s water and sewer fees, as set forth in
Chapter 173 of the City Code, all of which are expressly incorporated herein by
this reference.
(b) The City may increase the Maintenance Fee by providing written
notice of such increase to the Association at least 9 months prior to date on which
the increased Maintenance Fee shall become effective.
5. Term and Termination. The term of this Agreement shall begin on
the Effective Date and be for one (1) year. This Agreement shall automatically renew for
successive one-year terms unless and until terminated pursuant to this paragraph. Either
party hereto may terminate this Agreement by providing the other party with written
notice thereof at least six (6) months prior to the end of any then-current one-year term.
6. Notice. Any notice delivered with respect to this Agreement shall be
in writing and be deemed to be delivered (whether or not actually received) when (i) hand
delivered to the person(s) hereinafter designated, or (ll) when deposited in the United
States Mail, postage prepaid~ certified mai1~ return receipt requested, addressed to a party
at the address set forth opposite the party's name below~ or at such other person or
address as the applicable party shall have specified~ from time to time~ by written notice
to the other party delivered in accordance herewith:
Association: Sleepy Harbour Condominium Association,
Inc.
408-0 Orlando A venue
Ocoee, Florida 34761
copies to:
Paul L. Wean, Esq.
Wean & Malchow, P.A.
646 East Colonial Drive
Orlando, Florida 32803
City:
City of Ocoee
Attn: City Manager
150 North Lakeshore Drive
Ocoee, FL 34761-2258
7. Attornev's Fees. In the event that either party finds it necessary to
commence an action against the other party to enforce any provision of this Agreement or
because of a breach by the other party of any terms hereof, the prevailing party.shall be
entitled to recover from the other party its reasonable attorneys' fees, paralegal fees and
costs incurred in connection therewith, at both trial and appellate levels, including
bankruptcy proceedings, without regard to whether any legal proceedings are commenced
or whether or not such action is prosecuted to judgment.
8. Entire Al!I"eement. This Agreement contains all the terms and conditions
agreed upon by the parties hereto and no other agreement, oral or otherwise, regarding the
subject matter shall be deemed to exist or bind either of the parties hereto.
9. Amendments. No amendment, modification or other change in this
Agreement shall be binding upon the parties unless in writing an executed by all the
parties hereto.
10. Applicable Law. This Agreement and the provisions contained herein
shall be construed, controlled and interpreted according to the laws of the State of
Florida, with venue in the Circuit Court in and for Orange County, Florida.
11. Time Is of the Essence. Time is hereby declared of the essence to the
lawful performance of the duties and obligations contained in this Agreement.
12. Further Documentation. 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.
13. No Third Party Beneficiarv. This Agreement is not a third party
beneficiary agreement, and shall not in any way whatsoever create any rights on behalf of
any third party.
14. Cautions. 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 the Agreement.
15. Severability. If any word, 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 so long as the purpose and intent of this Agreement can still be achieved.
16. Counterparts. This Agreement may be executed 41 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.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANKl
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year set forth above;
ATTEST:
Beth Eikenberry, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this _ day of
.2008
FOLEY & LARDNER LLP
By:
City Attorney
ASSOCIATION:
SLEEPY HARBOUR CONDOMINIUM
ASSOCIATION, INC., a Florida not-for-
profit corpora~
BY:~ .,~
~
PrintName:01LLJA~ I-l. bA s.s.)...€~
Title: r~$I):>w'-
CITY:
CITY OF OCOEE
By:
S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON ,2008
UNDER AGENDA ITEM NO.
EXHIBIT "A"
(Tbe "Lift Station Propertv")
[See at/ached sheet)
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RlGI{(OF WAY L1Ne'THE FOLLOWiNG J COURSfS: SB9'J6.',f6".e: A DISTANCE .OF' 46.67 FEET TO II .
POINT OF CURVATURC 01'. A C:l.qvr CONCAvE S(x;~tii'lEsr~"I."'j.' H.4V1NG .4 RADIUS OF 2779.lI5
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(The "Lift Station ImDrovements")
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