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HomeMy WebLinkAboutItem #05 Approval of License Agreement to Use City Property for Orange Co. Construction Trailers i s a Centex of Good L, \ Vi AGENDA ITEM COVER SHEET Meeting Date: December 4, 2012 Item # 5 Reviewed By: /1 .1 h/ Contact Name: David A. Wheeler, P.E. Department Director: Number: 407 - 905 -3100, ext. 1504 City Manager: `; 71 r — Subject: Approval of License Agreement to Use City Property for Orange County Construction Trailers for the Clarcona -Ocoee Road Project (District 1 — Commissioner Gary Hood) Background Summary: Orange County is proceeding with the widening of the last segment of the Clarcona -Ocoee Road project. That segment is from east of Clarke Road to the bridge at SR 429, the Western Beltway. The County project includes the widening the roadway to four lanes, stormwater collection and treatment, and miscellaneous improvements. The construction project is expected to last until May of 2014; however the contractor is ahead of schedule at this time. The contractor of record, DeWitt Excavating, Inc. is required to furnish trailers for the Orange County inspectors to use as field offices throughout the duration of the project. The contractor of record typically installs the project trailers on property owned by the appropriate agency. However, Orange County does not own any additional property along the project route. DeWitt approached the City shortly after the project started in May of this year about using a small portion of the Forest Lake property for the project trailers. The location of the project trailers was decided to be the southwest corner of the Forest Lake property that is adjacent to Clarcona -Ocoee Road and the road to the maintenance barn for the golf course. After discussion with the Forest Lake Golf LLLP staff, DeWitt proposed to erect a 12 foot high fence on the sides toward the driving range and relocate the access gate for the golf course staff. The trailers would be located behind some trees and away from errant shots from the golf course driving range. DeWitt proposed to provide insurance and hold the City and Forest Lake Golf LLLP harmless against any claims in regards to the trailers. Upon completion of the road project, the affected property will be regraded and sodded, the fence and gate returned to the original position, and the property returned to as good if not new condition. The City decided against rental for the property in consideration for costs for work performed for the City as part of the road widening project. DeWitt is performing intersection improvements at Clarke and Clarcona -Ocoee Roads, a reuse pipeline installation along Ingram Road from Clarcona -Ocoee Road north to the project limits, and pipeline relocations of existing facilities for the water and reuse systems in the project limits. DeWitt has chosen to honor prices for the road improvements for the City using the bid prices provided to Orange County; this is a concept that is not required since the City improvements to the intersection are not a change order to the County's project but a separate agreement. The costs to assist the City in the existing pipeline relocations are based solely upon manpower and equipment with City participation of materials and assistance. The attached agreement was prepared by City legal staff and reviewed and edited by all parties. This agreement is between the City, DeWitt Excavating, Inc., and Forest Lake Golf LLLP. Orange County is not involved in this agreement, although it is for the benefit of their employees. Issue: Should the Mayor and City Commission accept the License Agreement and authorized the execution for use of a portion of City property for the Orange County construction trailers? Recommendations Staff recommends that the City Commission accept the License Agreement and authorized the Mayor and City Clerk to execute the Agreement for the temporary use of City property for the location of the Orange County construction trailers. Attachments: License Agreement Financial Impact: There is no financial impact to the City in relation to this License Agreement. Type of Item: (please mark with an "x") Public Hearing For Clerk's Dept Use: Ordinance First Reading X Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A Reviewed by () N/A 2 LICENSE AGREEMENT THIS LICENSE AGREEMENT (this "Agreement ") is made to be effective as of the day of , 2012 (the "Effective Date") by and between Dewitt Excavating, Inc., a Florida corporation ( "Contractor ") whose address is 14463 West Colonial Drive, Winter Garden, Florida 34787 and the City of Ocoee, Florida, a Florida municipal corporation ( "City ") whose address is 150 N. Lakeshore Drive, Ocoee, Florida 34761 and Forest Lake Golf Club, LLLP, a Florida corporation ( "Forest Lake "), whose address is 505 Deltona Boulevard, Suite # 201A, Deltona, Florida 32725. RECITALS WHEREAS, City is the owner of certain real property known as the Forest Lake Golf Course (the "Property ") located in Orange County, Florida; and WHEREAS, Forest Lake leases the Property from the City for the operation of a golf course; and WHEREAS, Orange County, Florida (the "County ") is making certain road construction improvements to Clarcona -Ocoee Road adjacent to the Property under project # CIP 3038 WEST (the "Road Construction "); and WHEREAS, County has retained Contractor to perform certain work during the Road Construction; and WHEREAS, Contractor has requested that City and Forest Lake allow Contractor to utilize the portion of the Property depicted in Composite Exhibit "A" attached hereto and incorporated herein (the "License Property ") for the purpose of installing two construction trailers for use by employees of County during the Road Construction; and WHEREAS, Contractor, City and Forest Lake have agreed to enter into this Agreement to permit Contractor to install and use the trailers on the License Property. NOW, THEREFORE, in consideration of the above recitals which are incorporated and made a part hereof, and the mutual agreements, covenants and conditions contained herein the parties hereby covenant and agree as follows: 1. Grant of Access. City and Forest Lake do hereby grant to Contractor at no cost, rent or other charge, access over and on and the use of the License Property for purposes of installing and using two construction trailers for use by employees of County during the Road Improvements and in compliance with all rules, regulations and requirements of Orange County and all other applicable governmental entities. All access over, on or through, and use of and activities carried out by Contractor on the License Property and throughout the Property shall be carried out at its own risk. 2. Term. The term of this Agreement shall be until the first to occur of (i) completion of the Road Construction; or (ii) three (3) years from the Effective Date. 3. Maintenance and End of Term Obligations. Contractor agrees to maintain the License Property during the term of this Agreement. Upon the expiration of the term, neither party shall have any further obligation to the other hereunder, except that Contractor shall promptly restore the License Property to its original condition, including relocating any fences and gates moved or installed by Contractor, sodding any disturbed areas and repairing any physical damage caused to the Property by the Contractor. 4. Release and Indemnification. Contractor hereby releases and agrees to indemnify, defend and save harmless City and Forest Lake, and their beneficiaries, successors and assigns, from and against any and all claims, demands, losses, causes of action, costs and expenses of any kind or nature for personal injury, damage or death suffered by Contractor or any other persons or entities as a direct result of County and Contractor's use of the License Property, unless such claims, demands, losses, result from City or Forest Lake's respective wrongful or negligent actions. The foregoing indemnity shall include all costs and expenses incurred by City and /or Forest Lake in defending a claim, demand or cause of action, or incurred in enforcing this indemnity, including, without limitation, any attorneys' fees and paraprofessional charges. Nothing set forth is this Agreement shall be deemed or construed as a waiver of sovereign immunity by the City and the City shall have and maintain at all times and for all purposes any and all rights, immunities and protections available under controlling legal precedent and as provided under Section 768.28, Florida Statutes and other applicable law. This indemnification and hold harmless shall survive any termination of this Agreement for a period of six (6) months thereafter. 5. Insurance. The Contractor shall provide the City proof insurance as required below prior to the installation of the Construction Trailers. Policies other than Workers' Compensation shall be issued only by companies authorized by subsisting certificates of authority issued to the companies by the Department of Insurance of Florida which maintain a Best's Rating of "A" or better and a Financial Size Category of "VII" or better according to the A.M. Best Company. Policies for Workers' Compensation may be issued by companies authorized as a group self- insurer by F.S. 440.57, Florida Statutes. The City and Forest Lake to be named as additional insureds. a) Loss Deductible Clause: The City and Forest Lake shall be exempt from, and in no way liable for, any sums of money which may represent a deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of the Contractor and /or subcontractor providing such insurance. b) Workers' Compensation Insurance: The Contractor shall obtain during the life of the contract, Worker's Compensation Insurance with Employer's Liability Limits of $500,000/$500,000 /$500,000 for all the Contractor's employees connected with the work of this project and, in the event any work is sublet, the Contractor shall require the subcontractor similarly to provide Workers' Compensation Insurance for all of the latter's employees unless such employees are covered by the protection afforded by the Contractor. Such insurance shall comply fully with the Florida Workers' Compensation Law. In case any class of employees engaged in hazardous work is not protected under the Workers' Compensation statute, the Contractor shall provide, and cause each subcontractor to provide adequate insurance, satisfactory to the City, for the protection of the Contractor's employees not otherwise protected. The policy shall include a Waiver of Subrogation in favor of the City and Forest Lake. c) Contractor's Public Liability and Property Damage Insurance: The Contractor shall obtain during the life of this Contract COMMERCIAL AUTOMOBILE COVERAGE, this policy should name the City of Ocoee as an additional insured, and shall protect the Contractor and the City and Forest Lake from claims for damage for personal injury, including accidental death, as well as claims for property damages which may arise from operations under this Contract whether such operations be by the Contractor or by anyone directly or indirectly employed by the Contractor, and the amounts of such insurance shall be the minimum limits as follows: 1) Automobile Bodily Injury Liability & Property Damage Liability • $1,000,000 Combined single limit per occurrence (each person, each accident) • All covered automobile will be covered via symbol 1 • Liability coverage will include hired & non -owned automobile liability • Include Waiver of Subrogation in favor of the City 2) Comprehensive General Liability (Occurrence Form) - this policy should name the City and Forest Lake as additional insureds and should indicate that the insurance of the Contractor is primary and non - contributory. • $2,000,000 GENERAL AGGREGATE • $2,000,000 PRODUCTS - COMPLETED OPERATIONS AGGREGATE • $1,000,000 PER OCCURRENCE • $1,000,000 PERSONAL & ADVERTISING INJURY • Include Waiver of Subrogation in favor of the City and Forest Lake 6. Inurement. The provisions of this Agreement shall apply to and inure to the benefit of City and Forest Lake, and each of their respective members, affiliates, directors, officers, employees and partners or any of them and their respective successors and assigns, including, without limitation, successors in title, and shall bind and apply to Contractor and /or its contractors, subcontractors, agents, guests, invitees, employees, independent contractors, engineers, laborers, and other representatives and their respective successors and /or assigns. 7. Binding Effect. All provisions of this Agreement, including the rights, benefits and burdens hereby bestowed and imposed, shall inure and bind Contractor, City and Forest Lake and their respective successors and assigns. 8. Governing Law. This Agreement shall be construed and governed by the laws of the State of Florida and venue shall lie in Orange County, Florida. 9. Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 10. Waiver of Jury Trial. The parties each hereby knowingly, unconditionally and absolutely waive any and all right to a jury trial in any action brought to interpret or enforce the terms of this Agreement. 11. Notice. All notices required or permitted to be given hereunder shall be in writing and shall be deemed given: (a) when hand delivered, receipt required; (b) the next business day after deposit with Federal Express, UPS or other nationally recognized overnight courier service, with overnight delivery charge prepaid; (c) when transmitted by e-mail notice with confirmed delivery; or (d) when transmitted via facsimile, provided a copy is sent the next day by method (a), (b) or (c). All Notices shall be sent to the addresses above. SIGNATURES TO FOLLOW IN WITNESS WHEREOF, the parties have each caused this Agreement to be executed under seal by their respective duly authorized representatives to be effective as of the day and year first above written. WITNESS: CONTRACTOR: Dewitt Excavating, Inc. By: Print Name: Print Name: Title: Print Name: Date: CITY: ATTEST: CITY OF OCOEE, FLORIDA Beth Eikenberry, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF APPROVED BY THE OCOEE CITY OCOEE, FLORIDA. COMMISSION AT A MEETING HELD ON UNDER AGENDA APPROVED AS TO FORM AND ITEM LEGALITY this day of , 2012 NO. Shuffield Lowman & Wilson P.A. By: City Attorney WITNESS: Forest Lake: Forest Lake Golf Club, LLLP Print Name: By: Print Name: Print Name: Title: