Resolution No. 14-06 RESOLUTION NO. 14-06
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 Partners 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 Sherman'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.
,r
Carolyn Woods
Mayor
Appro I • f_ . d correctness:
• Kellfr
Richard Komando,Esquire
City Attorney
ATT ST:
a(.61/114t (Pgialee
Donna L. Bartle, CMC
City Clerk
AGENDA ITEM#6A
JULY 14,2014
MAINTENANCE AGREEMENT
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 MO (o dated b/y/i / , 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 FDOT's Standard Specifications
for Road and Bridge Construction; (2) the Manual on Uniform Traffic Control Devices; (3) the FDOT'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 deficient item up to the
maintenance standard, at its sole cost and expense. The Developer will not be held responsible for a
failed MRP rating, so long as such rating is not 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
identified in the "Notice" section of this Agreement.
C. The Developer shall maintain all Bridge maintenance requirements within the Property, including,
without limitation, performing the following:
(1) Routinely inspect the Bridge for deficiencies; wear & tear, coating protection, wood
cracking or splintering, structural hardware wear, bolt tightening, railing (safety) conformity, structural
integrity, and maintenance of stripping and markings; as required by the FDOT Bridge Maintenance And
Repair Handbook (most recent Version).
(2) Routinely inspect the Bridge decking and railings for aesthetic purposes and for the
benefit of the health, safety and welfare of those members of the public traversing or otherwise utilizing
the Bridge; and
(3) Routinely remove 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 settlement of beam, girder 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 bridge inspection performed by an FDOT
Certified Bridge Inspector. Report of inspection and corrective action plan including timeline for any
deficiencies noted shall be provided to the City.
D. The City and the Developer shall be responsible jointly for clean-up, removal and disposal of debris
within the Property following and resulting from natural disasters, including, without limitation, hurricanes
and tornadoes. For debris to be removed by the City or its contractors, it must be within the City's rights
of way.
E. If the City determines that the Developer is not maintaining the Bridge in accordance with the terms
and provisions of this Agreement, the City shall deliver written notification of such to the Developer. The
Developer shall have thirty (30) days from the date of the City's written notice, or such other time as the
City] and the Developer mutually agree in writing, to correct the deficiency and provide the City with
written notice of the same.
F. If the City determines that the deficiency remains after receipt of the Developer's written notice
indicating that the deficiency was corrected, the City, within its discretion, may: (1) provide the Developer
with written authorization granting such additional time as the City deems appropriate to correct the
deficiency; or (2) correct the deficiency at the Developer's sole cost and expense. Should the City elect
to correct the deficiency, the City shall provide the Developer with an invoice for the costs incurred by the
City to correct the deficiency and the Developer shall pay the 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 appropriate under the circumstances. The City shall attempt to notify the
Developer prior to action under this section, but may take necessary steps to correct emergency
situations 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 responsible for the maintenance of traffic ("MOT") at all times during the
performance of this Agreement. MOT shall be performed in accordance with applicable Governmental
Law and the most current edition of each of the following, as the same may be constituted and amended
from time to time, all of which are incorporated herein and made part of this Agreement by reference: (1)
Section 102 of the FDOT's Standard Specifications for Road and Bridge Construction; (2) the Manual on
Uniform Traffic Control Devices; (3) the FDOT's Roadway Design Standards Index 600 Series; and (4)
other applicable Governmental Law.
B. If the Agency fails to perform MOT as required herein, the City, within its discretion, may elect to
perform MOT at the Developer's sole cost and expense. Should the City perform MOT, the City shall
provide the Developer with an invoice for 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
This Agreement creates a permissive use only. The Developer shall not acquire any right, title, interest or
estate in the Bridge by virtue of the execution, operation, effect or performance of this Agreement.
8. PAYMENTS TO CITY
All City invoices submitted to the Developer for payment pursuant to the terms and provisions of this
Agreement are due and payable within thirty (30) days of the date of the invoice ("Due Date"). Any
portion of an invoice not received by the City by the Due Date shall immediately thereafter begin accruing
interest at a rate of interest established pursuant to §55.03, Fla. Stat., until paid in full.
9. INDEMNIFICATION
A. The Developer shall promptly defend, indemnify, hold the City harmless from and pay all demands,
claims, judgments, liabilities, damages, fines, fees, taxes, assessments, costs, losses, penalties,
construction delay costs / penalties, expenses, attorneys' fees and suits of any nature or kind whatsoever
caused by, arising out of or related to the Developer's performance, or breach, of this Agreement
("Liabilities"). The term "Liabilities" shall also specifically include all civil and criminal environmental
liability arising, directly or indirectly under any Governmental Law, including, without limitation, liability
under the Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, 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 indemnifying the City for its negligence, intentional or wrongful acts, omissions or breach of
contract.
B. The Developer shall notify the City in writing immediately upon becoming aware of any Liabilities. The
Developer's obligation to defend, indemnify and hold the City harmless from any Liabilities, or at the City's
option to participate and associate with the City in the defense and trial of any Liabilities, including any
related settlement negotiations, shall be triggered by the City 's written notice of claim for indemnification
to the Developer. The Developer's inability to evaluate liability, or its evaluation of liability, shall not
excuse performance of the provisions of this paragraph.
10. SOVEREIGN IMMUNITY & LIMITATION OF LIABILITY
Nothing in this Agreement shall be deemed or otherwise interpreted as waiving either party's sovereign
immunity protections, or as increasing the limits of liability set forth in §768.28, Florida Statutes, as the
same may be amended from time to time.
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11. NOTICE
All notices, communications and 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 parties at the
following addresses:
City: City of Atlantic Beach
Public Works Director/City Engineer
City of Atlantic Beach
1200 Sandpiper Lane
Atlantic Beach, FL 32233
PH: (904) 247-5834
Fax: (904) 247-5843
Developer: Atlantic Beach Partners, LLC
Rick Wood
The Wood Development Company of Jacksonville
414 Old Hard Road, Suite 502
Fleming Island, Florida 32003
904 264-6553 office
904 269-2729 facsimile
904 813-5647 cellular
rwoodwooddev.net
Association: Atlantic Beach Country Club Owners Association, Inc.
The Wood Development Company of Jacksonville
414 Old Hard Road, Suite 502
Fleming Island, Florida 32003
904 264-6553 office
904 269-2729 facsimile
swood a(�wooddev.net
12. GOVERNING LAW
This Agreement shall be governed in all respect by the laws of the State of Florida.
13. INITIAL DETERMINATION OF DISPUTES
The City's Director of Public Works/Engineer shall act as the initial arbiter of all questions, difficulties, and
disputes concerning the interpretation, validity, performance or breach of this Agreement.
14. VENUE AND JURISDICTION
A. Venue for any and all actions arising out of or in any way related to the interpretation, validity,
performance or breach of this Agreement that are not resolved to the mutual satisfaction of the parties
shall lie exclusively in a state court 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. INTERPRETATION
No term or provision of this Agreement shall be interpreted for or against any party because that party or
that party's legal representative drafted the provision.
23. CAPTIONS
Paragraph title or captions contained herein are inserted as a matter of convenience and reference and in
no way define, limit, extend or describe the scope of this Agreement or any provision hereof.
24. SEVERANCE
If any section, paragraph, clause or provision of this Agreement is adjudged by a court, agency or
authority of competent jurisdiction to be invalid, illegal or otherwise unenforceable, all remaining parts of
this Agreement shall remain in full force and effect and the parties shall be bound thereby so long as
principle purposes of this Agreement remain enforceable.
25. COMPUTATION OF TIME
In computing any period of time prescribed in this Agreement, the day of the act, event or default from
which the designated period of time begins to run, shall not be included. The last day of the period shall
be included unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the
end of the next day which is not a Saturday, Sunday or legal holiday.
26. MODIFICATION OF AGREEMENT
A modification or waiver of any of the provisions of this Agreement shall be effective only if made in
writing and executed with the same formality as this Agreement.
27. CONTRACTUAL SERVICES
In the event this Agreement is for a "contractual service" as defined by §287.012, Florida Statutes, as the
same may be amended from time to time, then all applicable provisions of Chapter 287, Florida Statutes
shall apply.
28. PUBLIC RECORDS
The City and Developer shall allow public access to all documents, papers, letters, or other material
subject to the provisions of Chapter 119, Florida Statutes, and made or received by the City in
conjunction with this Agreement.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties execute this
Agreement.
City of Atlantic Beach Attest:
By: By:
Printed Name: Printed Name:
Title: Title:
Date: Date:
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• AGENDA ITEM#6A
JULY 14,2014
Atlantic Beach Partners, LLC Attest:
By: By:
Printed Name: Printed Name:
Title: Title:
Date: Date:
Atlantic Beach Country Club Owners Attest:
Association, Inc.
By: By:
Printed Name: Printed Name:
Title: Title:
Date: Date:
MA with COAB-ABP/ABCC FINAL (04-21-14) Page 7
AGENDA ITEM#6A
JULY 14,2014
EXHIBIT "A"
(City of Atlantic Beach)
PROPERTY LOCATION
MA with COAB-ABP/ABCC FINAL (04-21-14) Page 8
AGENDA ITEM#6A
JULY 14,2014
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