Item M1BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 19, 2013 Division: Public Works/Engineering
Bulk Item: Yes _ No X Department: Engineering Services Department
Staff Contact Person/Phone #: Judv Clarke X4329
AGENDA ITEM WORDING: Appeal by the Duck Key Property Owners Association (DKPOA) of
denial of a right of way permit to landscape on county rights -of -way near various wastewater lift
stations.
ITEM BACKGROUND: DKPOA contracted with a landscaping contractor to install landscaping
around the wastewater lift stations that have been constructed in Duck Key. Section 19-33 of the
Monroe County Code prohibits landscaping and placement of boulders on the county public right-of-
way. The Association is appealing the denial as allowed by Monroe County Code Section 19-46.
Appeals.
The item was tabled until the June 2013 meeting so that staff could draft a landscape maintenance
agreement that DKPOA would be required to sign as a condition of approval of the appeal. A draft
agreement is attached.
PREVIOUS RELEVANT BOCC ACTION: BOCC tabled this item at the May 15, 2013 meeting
and directed staff to draft a landscaping maintenance agreement for approval by DKPOA.
CONTRACT/AGREEMENT CHANGES: n/a.
STAFF RECOMMENDATIONS:
TOTAL COST: n/a INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: $0
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County Atty _ OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION:
Revised 7/09
AGENDA ITEM #
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RIGHT-OF-WAY LANDSCAPING AGREEMENT
This agreement entered into this day of , 2013 by The DUCK KEY
PROPERTY OWNERS ASSOCIATION, a not -for -profit Florida Corporation, hereinafter
DKPOA.
WHEREAS, in 2010 the Monroe County Code ("Code") was amended to prohibit
permits to be issued for boulders or landscaping within the County's public right-of-way; and
WHEREAS, with the current and ongoing installation of wastewater systems in Monroe
County, wastewater lift station are being installed in the County's public right-of-way; and
WHEREAS, DKPOA expressed a desire to plant limited landscaping to beautify the area
immediately surrounding the wastewater lift stations in Duck Key; and
WHEREAS, DKPOA in order to obtain a permit should be required to provide an
agreement to maintain the landscaping so the County will not be burdened with the cost of
maintenance;
NOW THEREFORE, for and in consideration of the understanding hereinafter set forth the
DKPOA agrees and covenants as follows:
1. DKPOA will conduct the landscaping in accordance with the terms of the right of way
permit issued by Monroe County Engineering Department. DKPOA will submit the proposed
locations of the landscaping and species of plantings as part of the right of way permit
application for review and approval by the County.
2. DUTIES OF DKPOA. DKPOA will be solely responsible for any and all parties who
perform landscaping installation and/or maintenance and the County will in no way be
responsible or liable for any injury caused by the tools, materials, or equipment used by DKPOA
and its Contractors.
3. PAYMENT. DKPOA is solely responsible for all costs incurred in carrying out the planting
project. It is understood by the parties that the County is to incur no cost for the planting project.
There are no third party beneficiaries to this Agreement, and no contractor or sub -contractor or
any other person or entity that shall look to County for payment.
4. INDEMNIFICATION. DKPOA does hereby hold harmless, indemnify and defend the
County and its commissioners, officers, employees, and agents from any and all claims for
bodily injury (including death), personal injury, and property damage (including property owned
by Monroe County) and any other losses, damages, and expenses (including attorney's fees)
arising from any injury or damage in connection with this Agreement.
5. COMPLIANCE WITH LAWS. DKPOA will comply with all laws, ordinances, and
governmental rules and regulations which apply to its activities on the property. DKPOA will
obtain all necessary permits and or authorization as may be required by the regulatory agencies.
6. JURISDICTION AND VENUE. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Florida applicable to contract made and to be
performed entirely in the State. In the event that any cause of action or administration proceeding
is instituted for the enforcement or interpretation of this Agreement, the Parties agree that venue
will lie in the appropriate court or before the appropriate administrative body in Monroe County,
Florida. Venue for any suits or actions of any kind and any mediation shall be in and governed
by the rules of the 16th Judicial Circuit Court in Monroe County, Florida. This Agreement shall
not be subject to arbitration.
7. TERMINATION/REVOCATION OF PERMIT. Nothing contained in this agreement will
replace or supersede the County's authority to terminate a right of way permit as outlined in
Monroe County Code Section 19 and/or the Monroe County Right of Way permit form.
8. AUTHORIZED SIGNATORY: The signatory for THE ASSOCIATION, below, certifies
and warrants that:
(a) The homeowner's association name in this agreement is its full name as designated in its
corporate charter.
(b) He or she is empowered to act for the Homeowner's association.
(c) This agreement has been approved by the ASSOCIATION's Board of Directors and/or
members.
Further, the Homeowner's association shall, upon execution of this agreement, provide proof of
incorporation, a list of its Board of Directors, and board minutes approving this agreement.
9. BINDING EFFECT. The terms, covenants, conditions, and provisions of this Agreement
shall bind and inure to the benefit of the County and the ASSOCIATION and their respective
legal representatives, successors, and assigns.
ATTEST
By:
WITNESS
By:
WITNESS
DUCK KEY PROPERTY OWNERS
ASSOCIATION
Title:
Engineering Department
MEMORANDUM
To: Board of County Commissioners
From: Judy Clarke
Date: May 6, 2013
Re: Duck Key Property Owners Association (DKPOA) Appeal of After the Fact Right
of Way Permit Denial
This item is an appeal of Engineering staff's denial of an after the fact right of way permit
application to install landscaping around the wastewater lift stations on the County rights of way
in Duck Key. Staff denied the permit request because Section 19-33 of the Monroe County Code
prohibits landscaping on the County right of way.
The Monroe County Engineering Inspector observed the landscaping around seven lift stations
that were recently constructed as part of the Duck Key sewer system. The DKPOA
representative indicated that they had spoken with Florida Keys Aqueduct Authority staff to
confirm that vegetation would not hinder maintenance operations but that they did not contact
the County regarding a permit.
Monroe County code has prohibited landscaping on county rights of way since August 2010.
Prior to this time limited landscaping was permitted but it was determined that over time some
homeowners neglected to maintain and trim landscaping, which could potentially create hazards
on county roads. In addition, in some areas landscaping prevented use of the right of way for its
primary functions of providing off street parking, off street walking areas, and drainage.
Several pictures of the landscaping are attached. The DKPOA has provided a statement from
Second Nature of the Keys, Inc. who will provide landscape maintenance services; the statement
is also attached.
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