Agenda Item 6A - Resolution 14-06CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM# 6A
JUNE 9, 2014
AGENDA ITEM: Atlantic Beach Country Club Wooden Bridge Maintenance and Hold
Harmless Agreement and Resolution No. 14-06 authorizing the City
Manager to sign the agreement and any related documents.
SUBMITTED BY: Rick Carper, P.E., Public Works Director ,f!__ C
DATE: May 12, 2014
STRATEGIC PLAN LINK: None.
BACKGROUND: As part of the residential development for the new Atlantic Beach Country
Club, the Developer, Atlantic Beach Partners, proposed constructing a wooden bridge to
connect the east (Country Club) and west (residential) sides of Sherman Creek. This
wooden bridge is a high end, structural bridge designed for full H20 (34,000 lb) truck
loading. Because the City of Atlantic Beach does not have bridge maintenance capability,
as part of the Building Permit approval process, Staff requested the Developer enter into a
perpetual maintenance agreement with the City. As part ofthis agreement, the Developer
(initially) and the Country Club will be responsible for routine inspections and maintenance
to ensure bridge is maintained to its design life. Additionally, Section 9 of the agreement
contains indemnification language that holds the City harmless for accidents or events
resulting from the Developer's failure to maintain the bridge in safe and satisfactory
condition.
BUDGET: There is no budget impact to this agreement.
RECOMMENDATION: Approve Resolution No. 14-06 authorizing the City Manager to sign the
attached agreement and any related documents.
ATTACHMENT: 1) Maintenance and Hold Harmless Agreement ABCC Bridge-Final Draft
2) Resolution No. 14-06
REVIEWED BY CITY MANAGER: ----/1 y;__ et«.A..e
MAINTENANCE AGREEMENT
AGENDA ITEM# 6A
JUNE 9, 2014
THIS MAINTENANCE AGREEMENT ("Agreement") is made and entered into by and between
City of Atlantic Beach, Florida ("City") and Atlantic Beach Partners, LLC, a Florida Limited Liability
Company ("Developer"), and Atlantic Beach Country Club Owners Association, Inc., a Florida non for
profit corporation ("Association").
-RECITALS-
1. The Developer, Atlantic Beach Partners, LLC is presently constructing a bridge crossing
("Bridge") located within the City Right of Way in the community known as Atlantic Beach Country Club as
identified in Exhibit "A" hereto ("Property");
2. The Developer desires to assume maintenance of the Bridge in order to improve the aesthetic
appearance of the community until such time as the Developer turns over the obligation to maintain the
common areas of the Property to the Association, at which time the Association shall assume the
obligation to maintain the Bridge;
3. The Property is within or adjacent to the corporate limits of the City; and
4. The City, by resolution number-=-------dated _____ , attached hereto as
Exhibit "B", authorized its officers to enter this Agreement.
NOW THEREFORE, with full knowledge and understanding of the laws governing the subject
matter of this Agreement, and in consideration of the foregoing recitals and the mutual covenants and
conditions contained in this Agreement, the parties, intending to be legally bound, acknowledge and
agree as follows:
1. RECITALS & EXHIBITS
The above recitals and attached Exhibits, if any, are specifically incorporated by reference and made part
of this Agreement.
2. EFFECTIVE DATE
The effective date of this Agreement shall be the date the last of the parties to be charged executes the
Agreement ("Effective Date").
3. TERM
The term of this Agreement shall be for the life of the bridge, commencing on the Effective Date, unless
otherwise terminated by the City in writing.
4. COMPLIANCE
The Developer shall perform its obligations under this Agreement in accordance with all applicable
federal, state, local, administrative, regulatory, safety and environmental laws, codes, rules, regulations,
policies, procedures, guidelines, standards and permits, as the same may be constituted and amended
from time to time, including, without limitation, those of the City, St. Johns River Water Management
District, Florida Department of Environmental Protection, Environmental Protection Agency, and Army
Corps of Engineers.
5. MAINTENANCE
A. The Developer shall maintain the Bridge in a good and workmanlike manner, with reasonable care, in
accordance with the terms and provisions of this Agreement. For purposes of this Agreement, unless
otherwise noted in Exhibit "A", the locations to be maintained by the Developer shall be maintained
pursuant to the maintenance standards as defined in (1) Section 102 of FOOT's Standard Specifications
for Road and Bridge Construction; (2) the Manual on Uniform Traffic Control Devices; (3) the FOOT's
Roadway Design Standards Index 600 Series; and (4) other applicable Governmental Law. Should the
City determine that any item of maintenance related to the Improvement has fallen below the desired
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maintenance standard; the Developer agrees to immediately bring the def icient item up to the
maintenance st andard, at its sole cost and expense. The Developer will not be held responsible for a
failed MRP rating, so long as such rating is no t based on any negligence, intentional or wrongful act,
omission or breach of contract by the Developer.
B. The Parties' representatives and points of contact for the administration of this Agreement shall be
Iden tified in the "Notice" section of th is Agreement.
C. The D eveloper shall maintai n all Brid ge maintenance requirements with in the Property, including,
without limita ti o n , performing the following:
(1) Routinely inspect the B ridge for deficiencies; wear & tear, coating protection, wood
c racking or splintering, structural hardware wear, bolt tightening, railing (safety) conformity, structural
integrity, and main te n ance of stripping and markings; as required by th e FOOT Bridge Maintenance And
Repair Handbook (most recen t Vers ion).
(2) Routinely inspect the Bridge decking and railings for aesthetic pu rposes a nd for the
benefit of th e health, safety and welfare of those members of the public traver sing or otherwise utilizing
the Bridge; and
(3) Routinely r emove any obstructions that may cause harm to the Bridge structure;
(4) Routinely keep the deck surface protected, Inspect any deficiency where the Bridge ties
to the paved roadway system;
(5) Routinely check for piling settl ement of beam, g irder and decking deterioration;
(6) Routinely inspect structure components and hardware connections; and
(7) Routinely keep the Bridge free of debris.
(8) Not less than every two years have a complete brid ge inspection performed by an FOOT
Certi fied Bridge Inspecto r. Report of inspection and corrective action plan including timellne for any
deficiencies noted shall be provided to the City.
D. T he City and the Developer s ha ll be responsible jointly fo r clean-up, removal and disposal of debris
with in th e Property fol lowing and resu lting from natural disasters, including, wi thout li mitation , hurricanes
and tornadoes. For debris to be removed by the City o r its contractors, it must be within the City's r ights
of way.
E. If the City determines th at th e Developer is not maintaining the Bridge In accordance with th e terms
and provisions of thi s Ag reeme nt, the City s ha ll deliver w ri tten notification of such to the Developer. The
Developer s hall have th irty (30} days from the date of the City's written notice, o r such other t ime as the
Ci ty] and the Developer m utuall y agree in writing, to correct the deficiency and provid e the Cit y with
w ri tten notice of the same.
F. If the C ity determines that th e deficiency remains after receipt of the Developer's w ritten notice
indicati ng that the deficiency was correcte d , th e Ci ty, w ith in its d iscretion, m ay: (1) provide the Developer
with w ritt en authorization granting su ch additional time as the City deems appropriate to corr ect the
deficiency; or (2) correct the deficiency at the Developer's sole cost and expense . Should the City elect
to correct th e deficiency, th e City shall provide the Developer with an invoice for th e costs incurred by the
Ci t y to correct th e deficien cy and the Developer shall pay lhe invoice in accordance with the "Payment''
section of this Agreement.
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G . If at any time in the sole determination of the City, the integrity or safety of the Bridge requires
immediate maintenance for the benefit of public health, safety or welfare, the City may perform such
maintenance it deems appropri ate under the circumstances . T he City shall attempt to notify the
Develop er prior to action under this section , but may t ake necessary steps to correct emergency
situa tions prior to such notification in order to prevent eminent danger to public health, safety or welfare.
6. MAINTENANCE OF TRAFFIC
A. The Developer shall be responsib le for the maintenance of traffic ("MOT") at all times during the
performan ce of this Agreement. MOT shall be performed in accordance with applicable Gover nmental
Law and th e most cu rrent edition of each of the following, as the same may be constituted and amended
f rom tim e to time, all of wh ich are Incorporated herein an d made pa rt of this Agreement by reference : (1)
Section 102 of the FOOT's Standard Specifications for Road and Bridge Constru c tion ; (2) the Manual on
Uniform Traffic Contro l Devices; (3) the FOOT's Roadway Design Standards Index 600 Series; and (4)
other applicable Governmental Law.
B. If the Agency f ails to perform MOT as req uired herein , the City, within its discretion, may elect to
perform MOT at the Developer's sole cost and expense. S hould t he City perform MOT, th e City shall
provide t he Developer with an invoice f or the costs incurred by the City and the Developer shall pay the
invoice in accordance with the "Payment" section of this Agreement.
7. PERMISSIVE USE
Thi s Agreement crea tes a permissive use only. The Developer sha ll not acquire any r ig ht, title, interest or
estate in th e Bridge by virtue of t he execution, operation, effect or performance of th is Agreement.
8 . PAYMENTS TO CITY
All City i nvoices subm itted to the Developer for payment pursuant to th e terms a nd provisions of this
Agreement are due and payable w ithin thirty (30) days of th e date of the Invoice ("Due Date"). Any
portion of a n invoice not received by the City by the Due Date shall immediately thereafter begin accrui ng
interest at a ra te of interest estab lished pursuant to §55.03, Fla . Stat., until paid in full .
9. I NDEMNIFICATI ON
A. The Developer s hall promptly defend, ind emnify, hold the Ci ty harm less from a nd pay all demands ,
claims, judgments, liabilities, damages, fin es , fees, taxes, assessments, costs , losses, penalties ,
construction delay costs I penalties, expenses, attorneys' fees and s uits of any nature or k ind whatsoever
caused by, arising out of or related to the Developer's performance, or breach, of this Agreement
("Liabilities"). The term ''Liabilities '' sha ll a lso specificall y include all civil and crim inal environmental
liabi lity arising, directly or indirectly under any Governm enta l Law, inc lud in g , without li mitation , liability
under the Resource Conservation and Recovery Act ("RCRA''), the Comprehensive Enviro nmental
Res pon se, Compensation and Liability Act ("CERCLA"), the Clean Air Act ("CAA") and the Clean Water
Act ("CWA"). The Developer's duty to defend, Indemnify and hold the City harmless specifically does not
encompass ind em nifying the City for its negligence, intentional or wrongful acts, omissions or breach of
contrac t.
B. T he D eveloper shall notify th e City in writing immediately upon becoming aware of an y Liabilities. The
Developer's obligation to defend , Ind emnify and hold the Ci t y harmless from any Liabilities, or at the City's
option to participate and associate with th e Ci ty in the defense and trial of any Liabilit ies, including any
related settlement negotiations, shall be triggered by the City 's w ritten notice of claim for indem nification
to the Developer. The Developer's inability to evaluate liability, or its evaluation of liabilit y, shall not
excuse performance of the provisio ns of thi s par ag rap h .
10. SOVEREIGN IMMUNITY & LIM ITATION OF LIABILITY
Nothing in this Agreement shall be deemed or otherwise interpreted as waiving e ith er party's sovereign
immunity protections, or as increasing the limits of liabili ty set forth in §768 .28 , Florida Statutes, as the
same may be amended from tim e to tim e .
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11 . NOTICE
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All notices, communications a nd determinations between the parties hereto and those required by this
Agreement, including, without limitation , changes to the notification addresses set forth below, shall be in
writing and shall be sufficient if mailed by regular United States Mail, postage prepaid, to the pa rties at the
following addre sses:
City: City of Atlantic Beach
Public Works Director/City Engineer
City of Atlant ic Beach
1200 Sandpiper Lane
Atlantic Beach, FL 32233
PH : (904) 247-5834
Fax: (904) 247-5843
Developer: Atlantic Beach Partners, LLC
Ri ck Wood
The Wood Development Company of Jacksonvill e
414 Old Hard Road , Suite 502
Fleming Island , Florida 32003
904 264-6553 office
904 269-2729 facsimile
904 813-5647 cellular
rwood@wooddev.net
Association: Atlantic Beach Country Club Owners Association , Inc.
The Wood Development Company of Jacksonv ille
414 Old Hard Road, Suite 502
Fleming Island, Florida 32003
904 264-6553 office
904 269-2729 f acsimile
swood @wooddev . net
12. GOVERNING LAW
This Agreement sha ll be govern ed in all respect by the laws of the State of Florida.
13.1NITIAL DETERMINATION OF DISPUTES
The City's Director of Public Works/Engineer shall act as th e initia l arbiter of a ll questions, difficulties, and
disputes conce rnin g the interpretation, validity, performance o r breach of this Agreement.
14. V EN UE AND JURISDICTION
A . Venue for any and all actions arising out of or In any way re lated to the interpretation, validity,
performance or breach of t his Agreement that are not resolved to th e mutual satisfaction of the parties
shall lie exclusively In a state co urt of appropriate jurisdiction in Duval County, Florida.
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B. The Developer, assignees, successors and all persons and entities accepting an assignment of this
Agreement, in whole or in part, shall be deemed as having consented to personal jurisdiction in the State
of Florida and as having forever waived and relinquished all personal jurisdiction defenses with respect to
any proceeding related to the interpretation, validity, performance or breach of this Agreement.
15. JURY TRIAL
THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY DISPUTE CONCERNING
THE INTERPRETATION, VALIDITY, PERFORMANCE OR BREACH OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, DAMAGES ALLEGEDLY FLOWING THEREFROM.
16. ASSIGNMENT
The Developer may not assign, pledge or transfer any of the rights, duties and obligations provided in this
Agreement without the prior written consent of either party. The City has the sole discretion and authority
to grant or deny proposed assignments, with or without cause. Nothing herein shall prevent the
Developer from delegating its duties hereunder, but such delegation shall not release the Developer from
its obligation to perform this Agreement until such time as the Developer turns over control of the
Association to its members. At such time as the Developer turns over control of the Association to its
members as provided in Section 720.307, Florida Statutes, the obligations of the Developer set forth in
this Agreement shall be assumed by the Association immediately as of such date without need for
execution of any further instrument. Developer shall provide notice to the City of the transition of control to
the Association no later than three (3) business days following the turn over of control. From the date of
transition of control from the Developer to the Association forward, the Developer shall have no further
obligation under this Agreement and all references in this Agreement to the Developer shall be read from
that point forward as referring to the Association.
17. THIRD PARTY BENEFICIARIES
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Nothing in this Agreement is intended to confer any rights, privileges, benefits,
obligations or remedies upon any other person or entity except as expressly provided for herein.
18. VOLUNTARY EXECUTION OF AGREEMENT
Each party warrants and represents to the other: (i) that it understands all of the rights and obligations set
forth in this Agreement and the Agreement accurately reflects the desires of said party; (ii) each provision
of this Agreement has been negotiated fairly at arm's length; (iii) it fully understands the advantages and
disadvantages of this Agreement and executes this Agreement freely and voluntarily of its own accord
and not as a result of any duress, coercion, or undue influence; and (iv) it had the opportunity to have
independent legal advice by counsel of its own choosing in the negotiation and execution of this
Agreement.
19. ENTIRE AGREEMENT
This instrument, together with the attached exhibits and documents made part hereof by reference,
contains the entire agreement of the parties and no representations or promises have been made except
those that are specifically set out in this Agreement. All prior and contemporaneous conversations,
negotiations, possible and alleged agreements and representations, covenants, and warranties with
respect to the subject matter of this Agreement, and any part hereof, are waived, merged herein and
superseded hereby.
20. SUFFICIENCY OF CONSIDERATION
By their signature below, the parties hereby acknowledge the receipt, adequacy and sufficiency of
consideration provided in this Agreement and forever waive the right to object to or otherwise challenge
the same.
21. WAIVER
The failure of either party to insist on the strict performance or compliance with any term or provision of
this Agreement on one or more occasions shall not constitute a waiver or relinquishment thereof and all
such terms and provisions shall remain in full force and effect unless waived or relinquished in writing.
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22.1NTERPRETATION
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J UNE 9, 20 14
No term or provision of thi s Agreement shall be interp reted for or agai nst any pa rty because th a t party or
tha t pa rty's lega l representative draft ed the pro vision .
23. CAPTIONS
Pa rag raph ti tl e or ca pti ons contained herein are Inse rt ed as a ma tter of con ve ni ence and ref erence and in
no wa y defin e, lim it, exte nd or describe th e sco pe of this Agree ment or an y provisio n her eof.
24. SEVERANCE
If any section, pa ra grap h, cla use or provis ion of this Agreement is adjudged by a court, agency or
authority of competent jurisdicti on to be in val id, ill ega l or oth erwise unenfo rcea bl e, all r emainin g p art s of
thi s Agreemen t shall re main i n full force and effec t and the parti es s hall be bo und th ereby so lo ng as
pri nciple purposes of th is Agree men t rema in enf orceab le.
25. COMPUTATION OF TIME
In computing any peri od of ti me prescribe d in this Ag reeme nt, the day of the act, eve nt or defa ult from
w hich the desig nated period of tim e begins to run , shall not be incl ud ed . T he last day of the perio d sha ll
be included unl ess it is a Sa turd ay, Sun day or legal ho liday, in which event th e per iod sha ll run until the
end of th e next day w hich is not a Saturday, Sun day or lega l holiday.
26. MODIFICATION OF AGREEMENT
A modificati on or waiver of any of the provisi ons of this Ag reemen t shall be effecti ve only if m ade in
writing and executed wi th the sa me fo rma lity as this Agree ment.
27. CONTRACTUAL SERVICES
In the event thi s Ag re ement is for a "contractu al se rvice" as defi ned by §287.0 12, Fl orid a Statutes, as the
same ma y be ame nde d from tim e to tim e, th en all applica bl e provis ion s of Ch apter 28 7, Florid a Statut es
shall apply.
28. PUBLIC RECORDS
The Ci ty and Develo per sha ll allow public access to all doc um ents, papers, letters, or other material
subj ect to the provi sions of Cha pter 11 9, Fl orid a Statu tes, and made or received by the City in
conjunction wi th this Ag reeme nt.
IN WITNESS WHEREOF , intending t o be lega ll y bo und hereby, the pa rties execute th is
Agree ment.
City of Atlantic Beach Attest:
By: __________________________ ___ By: __________________________ ___
Printed Name:------------Pri nted Name :------------
T itle:---------------Title:---------------
Date:---------------Date:---------------
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Atlantic Beach Partners, LLC Attest:
A GENDA ITEM f/ 6J\
JU NE 9, 20 14
By : By : ________________________ ___
Printed Name : Pr in ted Nam e:------------
Title : Title :--------------
Dat e: Date:---------------
Atlantic Beach Country Club Owners Attest:
Association, Inc.
By : By:--------------------
Printed Name : Printed Name : -----------
Title : Title:--------------
Da te: Date :--------------
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EXHIBIT "A"
(City of Atlantic Beach)
PROPERTY LOCATION
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AGENDA ITEM II 6A
JUN E9,20 14
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AGENDA ITEM# 6A
JUNE 9, 2014
RESOLUTION NO. 14-06
AGENDA ITEM# 6A
JUNE 9, 2014
A RESOLUTION OF THE CITY OF ATLANTIC BEACH AUTHORIZING
THE CITY MANAGER TO EXECUTE A MAINTENANCE CONTRACT
BETWEEN THE CITY OF ATLANTIC BEACH AND THE ATLANTIC BEACH
COUNTRY CLUB DEVELOPMENT REGARDING MAINTENANCE OF A WOODEN
BRIDGE, AND PROVIDING AN EFFECTIVE DATE
WHEREAS, on August 26, 2013, the City approved the Ordinance granting the Special
Planned Area designation for the Atlantic Beach Country Club to be developed by the Atlantic Beach
Partners, LLC; and
WHEREAS, Atlantic Beach Pminers proposed to install a wooden bridge across Sherman's
Creek in the City Right of Way to connect the Country Club area to the residential area of the Atlantic
Beach Country Club to maintain landscaped areas on Atlantic Boulevard and portions of Mayport
Road; and
WHEREAS, the City desires the Atlantic Beach Partners and Atlantic Beach Country Club to
maintain the wooden bridge across She1man' s Creek in the City Right of Way in perpetuity; and
WHEREAS, the areas to be maintained by the Atlantic Beach Partners and Atlantic Beach
Country Club are identified in Attachment "A" of the base agreement.
NOW THEREFORE, be it resolved by the City Commission of the City of Atlantic Beach as
follows:
SECTION 1. The City Manager is hereby authorized to execute the Agreement for
Maintenance with the Atlantic Beach Country Club and any related documents on behalf of the City of
Atlantic Beach.
SECTION 2. This Resolution shall take effect immediately upon its passage and adoption.
PASSED AND ADOPTED by the City of Atlantic Beach, this 9th day of June, 2014.
Approved as to form and correctness:
Richard Komando, ESQUIRE
City Attorney
ATTEST:
DONNA L. BARTLE, CMC
City Clerk
Carolyn Woods
Mayor