Agenda 09/10/2013 Item #16C8 9/10/2013 16.C.8.
EXECUTIVE SUMMARY
Recommendation to approve agreements with the Florida Department of Transportation (FDOT)
and the Florida Department of Financial Services to relocate Collier County Water Sewer District
utilities as a component of FDOT's project to widen U.S. 41 between Greenway Road and 6L's
Farm Road, to establish an interest bearing escrow account to fund the relocations, and direct the
County Attorney to file a declaratory action against the Clerk seeking an order to compel his
advance payment into the State-held escrow.
OBJECTIVE: Minimize the cost to relocate Collier County Water-Sewer District (CCWSD)
infrastructure required by an FDOT project to widen U.S. 41 (Tamiami Trail East) between
Greenway Road and 6L's Farm Road.
CONSIDERATIONS: On June 24, 2009, as Agenda Item 10G, the Board of County
Commissioners (Board) adopted the 2008 Water and Wastewater Master Plan Updates that
identified the requirement for relocating utility infrastructure in coordination with FDOT. The
proposed scope of work is consistent with the 2008 Water Master Plan Update, Project 70045,
"FDOT Joint Project Agreements — Water," Section 8, Table 8-2, page 2 of 5, line 53:, the 2008
Wastewater Master Plan Update, Project 73045, "FDOT Joint Project Agreements -- Sewer,"
Section 8, Table 8-2, page 2 of 5, line 73; the 2010 Potable Water CIP (dated October 5, 2010)
Update, page 3 of 4, line 87, as identified in the 2011 User Fee Rate Study; and, the 2010
Wastewater CIP (dated October 5, 2010) Update, page 2 of 4, line 50, as identified in the 2011
User Fee Rate Study.
On January 22, 2013, as Agenda Item 11D, the Board approved similar agreements for FDOT's
project to widen U.S. 41 between S.R. 951 (Collier Boulevard) and Greenway Road. This item
supports FDOT's next construction phase to widen U.S. 41 between Greenway Road and 6L's
Farm Road. As with the previous phase, the CCWSD has existing underground water and
wastewater infrastructure that will require relocation to accommodate the road widening.
FDOT's estimated cost for construction between Greenway Road and 6L's Farm Road is $19.7
million, excluding the cost for CCWSD utility relocation.
The Utility Work by Highway Contractor Agreement (Attachment 1) allows FDOT's highway
contractor to relocate the CCWSD underground infrastructure at less cost than relocating the
infrastructure under a separate, county-directed project. If, however, FDOT's bid to relocate the
infrastructure exceeds the CCWSD engineer's estimated construction cost by more than 10
percent, the CCWSD has the option to remove the utility work from the contract, or accept the
higher cost.
The standard form Resolution (Attachment 2) authorizes the Board's Chair to execute the
requisite Utility Work by Highway Contractor Agreement.
The Memorandum of Agreement (MOA) (Attachment 3) between the CCWSD, the FDOT, and
the State of Florida, Department of Financial Services, Division of Treasury, establishes an
interest-bearing escrow account with funds the CCWSD agrees to deposit as part of the Utility
Work by Highway Contractor Agreement.
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9/10/2013 16.C.8.
Under these agreements, there will be an FDOT project account for the entire project, including
the road widening and the utility infrastructure relocations. Pay applications are paid directly
from the FDOT project account, not the CCWSD escrow account. Monthly, there is a drawdown
from the escrow account to the project account. There are quarterly reconciliations, and a final
true-up, both of which include a summary of expenditures. Collier County can receive copies of
these reports upon request. At project close out, any funds remaining in escrow are returned to
the CCWSD.
FISCAL IMPACT: The CCWSD's estimated cost to relocate the underground infrastructure is
$2.9 million, based on the previous U.S. 41 widening project. The amount of funds required for
escrow is $3,248,000 ($1,624,000 from both the Water User Fee Fund (412) and the Wastewater
User Fee Fund (414)), which includes the estimated cost of construction plus a 12 percent
contingency required by the MOA. These agreements are presented to the Board now as the
FDOT anticipates a construction award in August 2014. Funding, however, will not be required
until FY2015. The CCWSD will budget the necessary funds in its FY2015 budget.
Water Wastewater Total
CCWSD's air $1,450,000 $1,450,000 $2900,000
2%CEA Caetingmiy $29,000 $29,000 $58,000
10%Project Contingency $145,000 $145,000 $290,000
Tool Est Cast $1,624,000 $1,624,000 $3,248000
•
Using today's dollars, the preliminary total cost (design, construction, and CEI) of the relocation
project is estimated to be $3,587,000. The relocated assets will have an approximate life
expectancy of fifty years and are not expected to generate additional annual operational costs.
LEGAL CONSIDERATIONS: This item is approved as to form and legality, and requires
majority vote for Board approval.—SRT
ADDITIONAL LEGAL CONSIDERATIONS: The Clerk has again raised the issue whether
he can make an advance payment into a State-held escrow for the relocation of the underground
water and wastewater infrastructure owned by the Collier County Water and Sewer District. The
Clerk would like to bring closure to this issue with the County bringing suit against the Clerk
seeking a Court order which would compel his payment. The Clerk and I are of the position that
this should be an expedited process. Accordingly, as part of the approval, I am asking the Board
to direct the County Attorney to file a declaratory action against the Clerk seeking an order to
compel his advance payment into the State-held escrow. -JAK
GROWTH MANAGEMENT IMPACT: This project meets current Growth Management Plan
standards to ensure the adequacy and availability of viable public facilities.
RECOMMENDATION: That the Board of County Commissioners, as Ex-officio the Governing
Board of the Collier County Water-Sewer District, approve
1. a Utility Work by Highway Contractor Agreement with the Florida Department of
Transportation;
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9/10/2013 16.C.8.
2. a Florida Department of Transportation standard form Resolution authorizing the Chair to
execute the Utility Work by Highway Contractor Agreement;
3. a Memorandum of Agreement with the Florida Department of Transportation and the
Florida Department of Financial Services,Division of Treasury; and
4. Direct the County Attorney to file a declaratory action against the Clerk seeking an order
to compel his advance payment into the State-held escrow.
Prepared By: Nathan Beals, Project Manager, Public Utilities Planning and Project Management
Department.
Attachments:
Attachment 1 —Utility Work by Highway Contractor Agreement
Attachment 2—Standard form Resolution
Attachment 3 —Memorandum of Agreement
Attachment 4—Project Public Notice
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9/10/2013 16.C.8.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.C.16.C.8.
Item Summary: Recommendation to approve agreements with the Florida Department of
Transportation (FDOT) and the Florida Department of Financial Services to relocate Collier
County Water-Sewer District utilities as a component of FDOT's project to widen U.S.41
between Greenway Road and 6L's Farm Road, and to establish an interest bearing escrow
account to fund the relocations.
Meeting Date: 9/10/2013
Prepared By
Approved By
Name: HapkeMargie
Title: Operations Analyst,Public Utilities
Date: 8/16/2013 1:27:29 PM
Name: JohnsonScott
Title: Purchasing Agent,Purchasing&General Services
Date: 8/19/2013 5:37:23 PM
Name: Steve Messner
Title:Plant Manager,Water
Date: 8/20/2013 10:34:26 AM
Name: Amia Marie Curry
Date: 8/21/2013 4:34:47 PM
Name: JohnssenBeth
Date: 8/22/2013 5:00:02 PM
Name: ChmelikTom
Title: Director,Public Utilities Engineering
Date: 8/23/2013 10:23:52 AM
Name: JacobsSusan
Title: Operations Analyst,Public Utilities Amok
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9/10/2013 16.C.8.
Date: 8/23/2013 12:37:46 PM
Name: WardKelsey
Title:Manager-Contracts Administration,Purchasing&Ge
Date: 8/23/2013 6:34:21 PM
Name: Evelyn Colon
Title:Purchasing-Procurement Specialist
Date: 8/26/2013 4:30:55 PM
Name: MarkiewiczJoanne
Title:Manager-Purchasing Acquisition,Purchasing&Gene
Date: 8/26/2013 7:17:58 PM
Name: YilmazGeorge
Title: Administrator,Public Utilities
Date: 8/26/2013 7:36:49 PM
Name: TeachScott
Title: Deputy County Attorney,County Attorney
Date: 8/27/2013 8:21:44 AM
Name: KlatzkowJeff
u Title: County Attorney
Date: 8/27/2013 11:48:13 AM
Name: UsherSusan
Title:Management/Budget Analyst, Senior,Office of Manage
Date: 8/30/2013 10:52:55 AM
Name: KlatzkowJeff
Title: County Attorney
Date: 8/30/2013 1:34:50 PM
Name: OchsLeo
Title: County Manager
Date: 8/30/2013 2:29:17 PM
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9/10/2013 16.C.8.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
RESOLUTION No. Form No.
UTILITY AGREEMENT Metes
Rev.00!00
Financial Project ID: 415621-3-56-01 Federal Project ID:
County/Section No: Collier State Road No.90
District Document No:
Utility Agency/Owner(UAO): Collier County Board of Commissioners as the Ex Officio Governing Body of the
Collier County Water-Sewer District
WHEREAS, the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the
"FDOT", proposes to construct or reconstruct a transportation facility identified above, hereinafter referred to as the
"Project"; and
WHEREAS, in order for the FDOT to proceed with the Project, it is necessary for Collier County Water-Sewer
District hereinafter referred to as the"UAO", to execute and deliver to the FDOT the agreement identified as Utility Work
by Highway Contractor Agreement(At Utility Expenses hereinafter referred to as the"Agreement";
NOW,THEREFORE,BE IT RESOLVED BY THE UAO:
That Georgia A. Hiller, Chair of the Collier County Board of County Commissioners and ex-officio the governing
body of the Collier County Water-Sewer District be hereby authorized and directed to execute and deliver the Agreement
to the FDOT.
A certified copy of this Resolution is to be forwarded to the FDOT along with the executed Agreement.
4
THIS RESOLUTION ADOPTED after motion, second, and majority vote favoring same by the UAO,this th
day of 2013.
ATTEST: BOARD OF COUNTY COMMISSIONERS,
DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA,AS THE EX-OFFICIO
GOVERNING BODY OF THE COLLIER
By: COUNTY WATER-SEWER DISTRICT
, DEPUTY CLERK
By:
Georgia A. Hiller, Esq., CHAIRWOMAN
Approved as to form and legality:
Scott R. Teach
Deputy County Attorney
ANN
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9/10/2013 16.C.8.
MEMORANDUM OF AGREEMENT
THIS AGREEMENT, made and entered into this , day of
2013, by and between the State of Florida, Department of Transportation, hereinafter
referred to as "FDOT" and the State of Florida, Department of Financial Services,
Division of Treasury, hereinafter referred to as "TREASURY" and Board of County
Commissioners of Collier County, Florida as the Ex-Officio Governing Body of the
Collier County Water-Sewer District, hereinafter referred to as the"PARTICIPANT".
WITNESSETH
WHEREAS, "FOOT" is currently constructing the following project:
Main Financial Project No.: 415621-3-56-01
County: Collier
hereinafter referred to as the "PROJECT'.
WHEREAS, FDOT and the PARTICIPANT entered into a Locally Funded
Fn,
Agreement dated , 2013, wherein FDOT agreed to perform certain
work on behalf of the PARTICIPANT in conjunction with the PROJECT.
WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in
the best interest of the FDOT and the PARTICIPANT to establish an interest bearing
escrow account to provide funds for the work performed on the PROJECT on behalf of
the PARTICIPANT by the FDOT.
NOW THEREFORE, in consideration of the premises and the covenants
contained herein, the parties agree to the following:
1. An initial deposit in the amount of Three Million Two Hundred and Forty
Eight Thousand Dollars ($3,248,000)will be made by the PARTICIPANT into an interest
bearing escrow account established by the FDOT for the purposes of the PROJECT.
Said escrow account will be opened with the TREASURY on behalf of the FDOT upon
receipt of this Memorandum of Agreement. Such account will be an asset of the FDOT.
2. Other deposits may be made by the PARTICIPANT as necessary to cover
cost increases or the cost of additional work prior to the execution of any Supplemental
Agreements or Amendments.
GP
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9/10/2013 16.C.8.
350-020-300-m
Page 2 of 3
3. Payment will be made as follows (check appropriate payment method):
IN Wire transfer
C1 ACH deposit
❑ Check
A wire transfer or ACH deposit is the preferred method of payment and should be used
whenever possible. Following is the wiring and ACH deposit instructions:
For wire transfers: Bank of America
Account#001009068974
ABA#026009593
Chief Financial Officer of Florida
Re: DOT—K 11-78, Financial Project#
For ACH deposits: Bank of America
Account# 001009068974
ABA#063100277
Chief Financial Officer of Florida
Re: DOT—K 11-78, Financial Project#
If a check is the method of payment, the check shall be made payable to the
Department of Financial Services, Revenue Processing and mailed to the FDOT, OOC-
GAO for appropriate processing at the following address:
Florida Department of Transportation
00C-GAO, LFA Section
605 Suwannee Street, MS 42B
Tallahassee, Florida 32399
A copy of this Agreement should accompany any deposits. When the check is
mailed to Tallahassee, the District Office should instruct the PARTICIPANT to
mail the District Office a copy of the check.
4. The FDOT's Comptroller or designee shall be the sole signatories on the
escrow account with the TREASURY and shall have sole authority to authorize
withdrawals from said account.
5. Unless instructed otherwise by the FDOT, all interest accumulated in the
escrow account shall remain in the account for the purposes of the PROJECT as
defined in the LFA.
6. The TREASURY agrees to provide written confirmation of receipt of funds
to the FDOT.
7. The TREASURY further agrees to provide periodic reports to the FDOT.
c�
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350-020.300-m
Page 3 of 3
STATE OF FLORIDA STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION SERVICESEDIVISION OF TREASURY
COMPTROLLER
Board of County Commissioners, Collier County,
Florida as the Ex-Officio Governing Body of the
Collier County Water-Sewer District
PARTICIPANT SIGNATURE
Georgia A. Hiller, Esq., Chairwoman
PARTICIPANT NAME &TITLE
3299 Tamiami Trail East, Suite 303
PARTICIPANT ADDRESS
Naples, FL 34112-5746
59-6000558
FEDERAL EMPLOYER I.D. NUMBER
ATTEST
DWIGHT E. BROCK, CLERK Approved as to form and legality
BY: Scott R.Teach,Deputy County Attorney
CA
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-Z
urnmes
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-0.5/12
(AT UTILITY EXPENSE)
Financial Project ID:415621-3-56-01- Federal Project ID:
County:Collier State Road No.:90
District Document No: 1
Utility Agency/Owner(UAO): COLLIER COUNTY
THIS AGREEMENT, entered into this day of , year of , by and between the
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FDOT", and
COLLIER COUNTY, hereinafter referred to as the"UAO";
WITNESSETH:
WHEREAS, the FDOT, is constructing, reconstructing, or otherwise changing a portion of a public road or
publicly owned rail corridor, said project being identified as US 41 from Greenwav to Six L's Farm, State Road
No.:90, hereinafter referred to as the"Project"; and
WHEREAS, the UAO owns or desires to install certain utility facilities which are located within the limits of
the Project hereinafter referred to as the"Facilities" (said term shall be deemed to include utility facilities as the
same may be relocated, adjusted, installed,or placed out of service pursuant to this Agreement); and
WHEREAS, the Project requires the location (vertically and/or horizontally), protection, relocation,
installation,adjustment or removal of the Facilities, or some combination thereof, hereinafter referred to as"Utility
Work"; and
WHEREAS, the FDOT and the UAO desire to enter into a joint agreement pursuant to Section
337.403(1)(b), Florida Statutes for the Utility Work to be accomplished by the FDOT's contractor as part of the
construction of the Project and
WHEREAS,the UAO, pursuant to the terms and conditions hereof, will bear certain costs associated with
the Utility Work;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the
FDOT and the UAO hereby agree as follows:
1. Design of Utility Work
a. UAO shall prepare, at UAO's sole cost and expense, a final engineering design, plans, technical
special provisions, a cost estimate, and a contingency Utility Work Schedule (said contingency
schedule to be used in the case of a bid rejection) for the Utility Work(hereinafter referred to as
the"Plans Package')on or before Dec.20, year of 2013.
b. The Plans Package shall be in the same format as the FDOT's contract documents for the
Project and shall be suitable for reproduction.
c. Unless otherwise specifically directed in writing, the Plans Package shall include any and all
activities and work effort required to perform the Utility Work, including but not limited to, all
clearing and grubbing, survey work and shall include a traffic control plan.
d. The Plans Package shall be prepared in compliance with the FDOT's Utility Accommodation
Manual and the FDOT's Plans Preparation Manual in effect at the time the Plans Package is
prepared, and the FDOT's contract documents for the Project. If the FDOT's Plans Preparation
Manual has been updated and conflicts with the Utility Accommodation Manual, the Utility
Accommodation Manual shall apply where such conflicts exist
e. The technical special provisions which are a part of the Plans Package shall be prepared in
accordance with the FDOT's guidelines on preparation of technical special provisions and shall
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710-010-=
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-05/12
(AT UTILITY EXPENSE)
not duplicate or change the general contracting provisions of the FDOT's Standard Specifications
for Road and Bridge Construction and any Supplemental Specifications, Special Provisions, or
Developmental Specifications of the FDOT for the Project.
f. UAO shall provide a copy of the proposed Plans Package to the FDOT,and to such other right of
way users as designated by the FDOT, for review at the following stages: Phase 1111 and Phase
IV. Prior to submission of the proposed Plans Package for review at these stages,the UAO shall
send the FDOT a work progress schedule explaining how the UAO will meet the FDOT's
production schedule. The work progress schedule shall include the review stages, as well as
other milestones necessary to complete the Plans Package within the time specified in
Subparagraph a.above.
g. In the event that the FDOT finds any deficiencies in the Plans Package during the reviews
performed pursuant to Subparagraph f. above, the FDOT will notify the UAO in writing of the
deficiencies and the UAO will correct the deficiencies and return corrected documents within the
time stated in the notice. The FDOT's review and approval of the documents shall not relieve the
UAO from responsibility for subsequently discovered errors or omissions.
h. The FDOT shall furnish the UAO such information from the FDOT's files as requested by the
UAO; however, the UAO shall at all times be and remain solely responsible for proper
preparation of the Plans Package and for verifying all information necessary to properly prepare
the Plans Package, including survey information as to the location (both vertical and horizontal)
of the Facilities. The providing of information by the FOOT shall not relieve the UAO of this
obligation nor transfer any of that responsibility to the FDOT.
The Facilities and the Utility Work will include all utility facilities of the UAO which are located
within the limits of the Project, except as generally summarized as follows: NA.These exceptions
shall be handled by separate arrangement.
j. If any facilities of the UAO located within the project limits are discovered after work on the
project commences to be qualified for relocation at the FDOT's expense, but not previously
identified as such, the UAO shall file a claim with the FDOT for recovery of the cost of relocation
thereof. The filing of the claim shall not necessarily entitle the UAO to payment,and resolution of
the claim shall be based on a determination of fault for the error. The discovery of facilities not
previously identified as being qualified for relocation at the FDOT's expense shall not invalidate
this Agreement.
k. The UAO shall fully cooperate with all other right of way users in the preparation of the Plans
Package. Any conflicts that cannot be resolved through cooperation shall be resolved in the
manner determined by the FDOT.
Upon completion of the Utility Work, the Facilities shall be deemed to be located on the public
road or publicly owned rail corridor under and pursuant to the Utility Permit:TBD
(Note: It is the intent of this line to allow either attachment of or separate reference to the
permit).
2. Performance of Utility Work
a. The FDOT shall incorporate the Plans Package into its contract for construction of the
Project.
b. The FOOT shall procure a contract for construction of the Project in accordance with the
FDOT's requirements.
c. If the portion of the bid of the contractor selected by the FDOT which is for performance of the
Utility Work exceeds the FDOT's official estimate for the Utility Work by more than ten percent
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-Z
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC 0512
(AT UTILITY EXPENSE)
(10%) and the FDOT does not elect to participate in the cost of the Utility Work pursuant to
Section 337.403(1)(b), Florida Statutes, the UAO may elect to have the Utility Work removed
from the FDOT's contract by notifying the FDOT in writing within 1Q days from the date that the
UAO is notified of the bid amount. Unless this election is made, the Utility Work shall be
performed as part of the Project by the FDOT's contractor.
d. If the UAO elects to remove the Utility Work from the FDOT's contract in accordance with
Subparagraph 2. c.,the UAO shall perform the Utility Work separately pursuant to the terms and
conditions of the FDOT's standard relocation agreement, the terms and conditions of which are
incorporated herein for that purpose by this reference, and in accordance with the contingency
relocation schedule which is a part of the Plans Package. The UAO shall proceed immediately
with the Utility Work so as to cause no delay to the FDOT or the FDOT's contractor in
constructing the Project.
e. The UAO shall perform all engineering inspection, testing, and monitoring of the Utility Work to
insure that it is properly performed in accordance with the Plans Package, except for the
following activities:
NA and will furnish the FDOT with daily diary records showing approved quantities and amounts
for weekly, monthly, and final estimates in accordance with the format required by FDOT
procedures.
f. Except for the inspection, testing, monitoring, and reporting to be performed by the UAO in
accordance with Subparagraph 2. e., the FDOT will perform all contract administration for its
construction contract.
g. The UAO shall fully cooperate with the FDOT and the FDOT's contractor in all matters relating to
the performance of the Utility Work.
h. The FDOT's engineer has full authority over the Project and the UAO shall be responsible for
coordinating and cooperating with the FDOT's engineer. In so doing, the UAO shall make such
adjustments and changes in the Plans Package as the FDOT's engineer shall determine are
necessary for the prosecution of the Project.
The UAO shall not make any changes to the Plans Package after the date on which the FDOT's
contract documents are mailed for advertisement of the Project unless those changes fall within
the categories of changes which are allowed by supplemental agreement to the FDOT's contract
pursuant to Section 337.11, Florida Statutes. All changes, regardless of the nature of the change
or the timing of the change,shall be subject to the prior approval of the FDOT.
3. Cost of Utility Work
a. The UAO shall be responsible for all costs of the Utility Work and all costs associated with any
adjustments or changes to the Utility Work determined by the FDOT's engineer to be necessary,
including, but not limited to the cost of changing the Plans Package and the increase in the cost
of performing the Utility Work, unless the adjustments or changes are necessitated by an error or
omission of the FDOT. The UAO shall not be responsible for the cost of delays caused by such
adjustments or changes unless they are attributable to the UAO pursuant to Subparagraph 4.a.
b. The initial estimate of the cost of the Utility Work is $2,900.000.00. At such time as the FDOT
prepares its official estimate,the FDOT shalt notify the UAO of the amount of the official estimate
for the Utility Work. Upon being notified of the official estimate, the UAO shall have five (5)
working days within which to accept the official estimate for purposes of making deposits and for
determining any possible contribution on the part of the FDOT to the cost of the Utility Work,or to
elect to have the Utility Work removed from the FDOT's contract and performed separately
pursuant to the terms and conditions set forth in Subparagraph 2.d.hereof.
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71aoiar
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT ooc-35112
(AT UTILITY EXPENSE)
c. At least Thirty (30 )calendar days prior to the date on which the FDOT advertises the Project for
bids,the UAO will pay to the FDOT an amount equal to the FDOT's official estimate; plus 2%for
mobilization of equipment for the Utility Work, additional maintenance of traffic costs for the Utility
Work, administrative costs of field work, tabulation of quantities, Final Estimate processing and
Project accounting (said amounts are to be hereinafter collectively referred to as the Allowances);
plus 10% of the official estimate for a contingency fund to be used as hereinafter provided for
changes to the Utility Work during the construction of the Project(the Contingency Fund).
d. Payment of the funds pursuant to this paragraph will be made(choose one):
directly to the FDOT for deposit into the State Transportation Trust Fund.
as provided in the attached Memorandum of Agreement between UAO, FDOT and
the State of Florida, Department of Financial Services, Division of Treasury.
Deposits of less than $100,000.00 must be pre-approved by the Department of
Financial Services and FDOT Comptroller's Office prior to execution of this
agreement.
e. If the portion of the contractor's bid selected by the FDOT for performance of the Utility Work
exceeds the amount of the deposit made pursuant to Subparagraph c.above,then subject to and
in accordance with the limitations and conditions established by Subparagraph 2. c. hereof
regarding FDOT participation in the cost of the Utility Work and the UAO's election to remove the
Utility Work from the Project, the UAO shall, within fourteen (14)calendar days from notification
from the FDOT or prior to posting of the accepted bid, whichever is earlier, pay an additional
amount to the FDOT to bring the total amount paid to the total obligation of the UACI for the cost
of the Utility Work, plus Allowances and 10% Contingency Fund. The FDOT will notify the UAO
as soon as it becomes apparent the accepted bid amount plus allowances and contingency is in
excess of the advance deposit amount; however, failure of the FDOT to so notify the UAO shall
not relieve the UAO from its obligation to pay for its full share of project costs on final accounting
as provided herein below. In the event that the UAO is obligated under this Subparagraph 3.e.to
pay an additional amount and the additional amount that the UAO is obligated to pay does not
exceed the Contingency Fund already on deposit, the UAO shall have sixty (60) calendar days
from notification from the FDOT to pay the additional amount, regardless of when the accepted
bid is posted.
f. If the accepted bid amount plus allowances and contingency is less than the advance deposit
amount,the FDOT will refund the amount that the advance deposit exceeds the bid amount, plus
allowances and contingency if such refund is requested by the UAO in writing and approved by
the Comptroller of the FDOT or his designee.
g. Should contract modifications occur that increase the UAO's share of total project costs, the
UAO will be notified by the FDOT accordingly. The UAO agrees to provide, in advance of the
additional work being performed,adequate funds to ensure that cash on deposit with the FDOT is
sufficient to fully fund its share of the project costs. The FDOT shall notify the UAO as soon as it
becomes apparent the actual costs will overrun the award amount; however, failure of the FDOT
to so notify the UAO shall not relieve the UAO from its obligation to pay for its full share of project
costs on final accounting as provided herein below.
h. The FDOT may use the funds paid by the UAO for payment of the cost of the Utility Work. The
Contingency Fund may be used for increases in the cost of the Utility Work which occur because
of quantity overruns or because of adjustments or changes in the Utility Work made pursuant to
Subparagraph 2. h. Prior to using any of the Contingency Fund, the FDOT will obtain the written
concurrence of the person delegated that responsibility by written notice from the UAO. The
delegatee shall respond immediately to all requests for written concurrence. If the delegatee
refuses to provide written concurrence promptly and the FDOT determines that the work is
necessary, the FDOT may proceed to perform the work and recover the cost thereof pursuant to
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILI az
TILfTIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-05/12
(AT UTILITY EXPENSE)
the provisions of Section 337.403(3), Florida Statutes. In the event that the Contingency Fund is
depleted,the UAO shall, within fourteen(14) calendar days from notification from the FDOT, pay
to the FDOT an additional 10%of the total obligation of the UAO for the cost of the Utility Work
established under Subparagraph 3.e.for future use as the Contingency Fund.
Upon final payment to the Contractor, the FDOT intends to have its final and complete
accounting of all costs incurred in connection with the work performed hereunder within three
hundred sixty (360) days. All project cost records and accounts shall be subject to audit by a
representative of the UAO for a period of three (3)years after final close out of the Project. The
UAO will be notified of the final cost. Both parties agree that in the event the final accounting of
total project costs pursuant to the terms of this agreement is less than the total deposits to date, a
refund of the excess will be made by the FDOT to the UAO in accordance with Section 215.422,
Florida Statutes. In the event said final accounting of total project costs is greater than the total
deposits to date, the UAO will pay the additional amount within forty(40)calendar days from the
date of the invoice. The UAO agrees to pay interest at a rate as established pursuant to Section
55.03, Florida Statutes, on any invoice not paid within the time specified in the preceding
sentence until the invoice is paid.
4. Claims Against UAO
a. The UAO shall be responsible for all costs incurred as a result of any delay to the FDOT or its
contractors caused by errors or omissions in the Plans Package(including inaccurate location of
the Facilities)or by failure of the UAO to properly perform its obligations under this Agreement in
a timely manner.
b. In the event the FDOT's contractor provides a notice of intent to make a claim against the FDOT
relating to the Utility Work, the FDOT will notify the UAO of the notice of intent and the UAO will
thereafter keep and maintain daily field reports and all other records relating to the intended ilask
claim.
c. In the event the FDOT's contractor makes any claim against the FDOT relating to the Utility
Work, the FDOT will notify the UAO of the claim and the UAO will cooperate with the FDOT in
analyzing and resolving the claim within a reasonable time. Any resolution of any portion of the
claim directly between the UAO and the FDOT's contractor shall be in writing, shall be subject to
written FDOT concurrence and shall specify the extent to which it resolves the claim against the
FDOT.
d. The FDOT may withhold payment of surplus funds to the UAO until final resolution(including any
actual payment required) of all claims relating to the Utility Work. The right to withhold shall be
limited to actual claim payments made by the FDOT to the FDOT's contractor.
5. Out of Service Facilities
No Facilities shall be placed out of service unless specifically identified as such in the Plans. The
following terms and conditions shall apply to Facilities placed Out-of-Service:
a. The UAO acknowledges its present and continuing ownership of and responsibility for out of
service Facilities.
b. The FDOT agrees to allow the UAO to leave the Facilities within the right of way subject to the
continuing satisfactory performance of the conditions of this Agreement by the UAO. In the event
of a breach of this Agreement by the UAO, the Facilities shall be removed upon demand from the
FDOT in accordance with the provisions of Subparagraph e. below.
c. The UAO shall take such steps to secure the Facilities and otherwise make the Facilities safe in
accordance with any and all applicable local, state or federal laws and regulations and in
Amsk
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710410.22
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT occ-05112
(AT UTILITY EXPENSE)
accordance with the legal duty of the UAO to use due care in its dealings with others. The UAO
shall be solely responsible for gathering all information necessary to meet these obligations.
d. The UAO shall keep and preserve all records relating to the Facilities, including, but not limited
to, records of the location, nature of, and steps taken to safely secure the Facilities and shall
promptly respond to information requests of the FDOT or other permittees using or seeking use
of the right of way.
e. The UAO shall remove the Facilities at the request of the FDOT in the event that the FDOT
determines that removal is necessary for FDOT use of the right of way or in the event that the
FOOT determines that use of the right of way is needed for other active utilities that cannot be
otherwise accommodated in the right of way. Removal shall be at the sole cost and expense of
the UAO and without any right of the UAO to object or make any claim of any nature whatsoever
with regard thereto. Removal shall be completed within the time specified in the FDOT's notice
to remove. In the event that the UAO fails to perform the removal properly within the specified
time, the FOOT may proceed to perform the removal at the UAO's expense pursuant to the
provisions of Sections 337.403 and 337.404, Florida Statutes.
f. Except as otherwise provided in Subparagraph e. above, the UAO agrees that the Facilities shall
forever remain the legal and financial responsibility of the UAO. The UAO shall reimburse the
FOOT for any and all costs of any nature whatsoever resulting from the presence of the Facilities
within the right of way. Said costs shall include, but shall not be limited to, charges or expenses
which may result from the future need to remove the Facilities or from the presence of any
hazardous substance or material in or discharging from the Facilities. Nothing in this paragraph
shall be interpreted to require the UAO to indemnify the FOOT for the FDOT's own negligence;
however, it is the intent that all other costs and expenses of any nature be the responsibility of
the UAO.
6. Default
a. in the event that the UAO breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in this Agreement, the FOOT may exercise one or
more of the following options, provided that at no time shall the FDOT be entitled to receive
double recovery of damages:
(1) Terminate this Agreement if the breach is material and has not been cured within sixty
(60)days from written notice thereof from FDOT.
(2) Pursue a claim for damages suffered by the FDOT.
(3) If the Utility Work is reimbursable under this Agreement, withhold reimbursement
payments until the breach is cured. The right to withhold shall be limited to actual claim
payments made by FDOT to third parties.
(4) If the Utility Work is reimbursable under this Agreement, offset any damages suffered by
the FDOT or the public against payments due under this Agreement for the same
Project. The right to offset shall be limited to actual claim payments made by FDOT to
third parties.
(5) Suspend the issuance of further permits to the UAO for the placement of Facilities on
FOOT property if the breach is material and has not been cured within sixty (60) days
from written notice thereof from FDOT.
(6) Pursue any other remedies legally available.
(7) Perform any work with its own forces or through contractors and seek repayment for the
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-Z
unLmE2 oc
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT c-05112
(AT UTILITY EXPENSE)
cost thereof under Section 337.403(3), Florida Statutes.
b. In the event that the FDOT breaches any provision of this Agreement, then in addition to any
other remedies which are otherwise provided for in the Agreement,the UAO may exercise one or
more of the following options:
(1) Terminate this Agreement if the breach is material and has not been cured within sixty
(60)days from written notice thereof from the UAO.
(2) If the breach is a failure to pay an invoice for Utility Work which is reimbursable under
this Agreement, pursue any statutory remedies that the UAO may have for failure to pay
invoices.
(3) Pursue any other remedies legally available.
c. Termination of this Agreement shall not relieve either party from any obligations it has pursuant to
other agreements between the parties nor from any statutory obligations that either party may have
with regard to the subject matter hereof.
7. Force Majeure
Neither the UAO nor the FDOT shall be liable to the other for any failure to perform under this Agreement
to the extent such performance is prevented by an act of God, war, riots, natural catastrophe, or other
event beyond the control of the non-performing party and which could not have been avoided or
overcome by the exercise of due diligence; provided that the party claiming the excuse from performance
has (a) promptly notified the other party of the occurrence and its estimate duration, (b) promptly
remedied or mitigated the effect of the occurrence to the extent possible, and (c) resumed performance
as soon as possible.
S. Indemnification
FOR GOVERNMENT-OWNED UTILITIES,
To the extent provided by law, the UAO shall indemnify, defend, and hold harmless the FDOT and all of
its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of
any acts, action, error, neglect, or omission by the UAO, its agents,employees, or contractors during the
performance of the Agreement,whether direct or indirect,and whether to any person or property to which
FDOT or said parties may be subject, except that neither the UAO, its agents, employees, or contractors
will be liable under this section for damages arising out of the injury or damage to persons or property
directly caused by or resulting from the negligence of the FDOT or any of its officers, agents, or
employees during the performance of this Agreement.
When the FDOT receives a notice of claim for damages that may have been caused by the UAO in the
performance of services required under this Agreement, the FOOT will immediately forward the claim to
the UAO. The UAO and the FDOT will evaluate the claim and report their findings to each other within
fourteen (14) working days and will jointly discuss options in defending the claim. After reviewing the
claim,the FDOT will determine whether to require the participation of the UAO in the defense of the claim
or to require the UAO to defend the FDOT in such claim as described in this section. The FDOT's failure
to notify the UAO of a claim shall not release the UAO from any of the requirements of this section. The
FDOT and the UAO will pay their own costs for the evaluation, settlement negotiations, and trial, if any.
However, if only one party participates in the defense of the claim at trial,that party is responsible for all
costs.
FOR NON-GOVERNMENT-OWNED UTILITIES,
The UAO shalt indemnify, defend, and hold harmless the FDOT and all of its officers, agents, and
44,
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710-010-22
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION ummes
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT occ-05/12
(AT UTILITY EXPENSE)
employees from any claim, loss, damage, cost, charge, or expense arising out of any acts, action, error,
neglect, or omission by the UAO, its agents, employees, or contractors during the performance of the
Agreement, whether direct or indirect, and whether to any person or property to which FOOT or said
parties may be subject, except that neither the UAO, its agents, employees, or contractors will be liable
under this section for damages arising out of the injury or damage to persons or property directly caused
by or resulting from the negligence of the FOOT or any of its officers, agents, or employees during the
performance of this Agreement.
The UAO's obligation to indemnify, defend, and pay for the defense or at the FDOT's option, to
participate and associate with the FOOT in the defense and trial of any damage claim or suit and any
related settlement negotiations, shall arise within fourteen (14)days of receipt by the UAO of the FDOT's
notice of claim for indemnification to the UAO. The notice of claim for indemnification shall be served by
certified mail. The UAO's obligation to defend and indemnify within fourteen (14) days of such notice
shall not be excused because of the UAO's inability to evaluate liability or because the UAO evaluates
liability and determines the UAO is not liable or determines the FDOT is solely negligent. Only a final
adjudication of judgment finding the FOOT solely negligent shall excuse performance of this provision by
the UAO. The UAO shall pay all costs and fees related to this obligation and its enforcement by the
FOOT. The FDOT's delay in notifying the UAO of a claim shall not release UAO of the above duty to
defend.
9. Miscellaneous
a. Time is of essence in the performance of all obligations under this Agreement.
b. The Facilities shall at all times remain the property of and be properly protected and maintained
by the UAO in accordance with the current Utility Accommodation Manual in effect at the time the
Plans Package is prepared and the current utility permit for the Facilities; provided, however, that
the UAO shall not be obligated to protect or maintain any of the Facilities to the extent the
FDOT's contractor has that obligation as part of the Utility Work pursuant to the FDOT's
specifications.
c. The FDOT may unilaterally cancel this Agreement for refusal by the UAO to 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 UAO in conjunction with this Agreement.
d. This Agreement constitutes the complete and final expression of the parties with respect to the
subject matter hereof and supersedes all prior agreements, understandings, or negotiations with
respect thereto, except that the parties understand and agree that the FDOT has manuals and
written policies and procedures which may be applicable at the time of the Project and the
relocation of the Facilities.
e. This Agreement shall be governed by the laws of the State of Florida. Any provision hereof found
to be unlawful or unenforceable shall be severable and shall not affect the validity of the
remaining portions hereof.
f. All notices required pursuant to the terms hereof may be sent by first class United States Mail,
facsimile transmission, hand delivery, or express mail and shall be deemed to have been
received by the end of five business days from the proper sending thereof unless proof of prior
actual receipt is provided. The UAO shall have a continuing obligation to notify each District of
the FDOT of the appropriate persons for notices to be sent pursuant to this Agreement. Unless
otherwise notified in writing, notices shall be sent to the following addresses:
If to the UAO:
Nathan Beals-Collier County Public Works
3339 Tamiami Trail East-Suite 303
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTIUTl 2`
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC 05/12
(AT UTILITY EXPENSE)
Naples, FL 34112
If to the FDOT:
Gary Beagles-Utilities Supervisor
801 N. Broadway
Bartow, FL 33830
10. Certification
This document is a printout of an FDOT form maintained in an electronic format and all revisions thereto
by the UAO in the form of additions, deletions, or substitutions are reflected only in an Appendix entitled
Changes To Form Document and no change is made in the text of the document itself. Hand notations
on affected portions of this document may refer to changes reflected in the above-named Appendix but
are for reference purposes only and do not change the terms of the document. By signing this document,
the UAO hereby represents that no change has been made to the text of this document except through
the terms of the appendix entitled Changes to Form Document.
You MUST signify by selecting or checking which of the following applies:
® No changes have been made to this Form Document and no Appendix entitled "Changes to Form
Document"is attached.
❑ No changes have been made to this Form Document, but changes are included on the attached
Appendix entitled"Changes to Form Document,"
IN WITNESS WHEREOF,the parties hereto have executed this Agreement effective the day and year first written,
Board of Commissioners of
UTILITY: COLLIER COUNTY as the Ex-Officio Governing Body
of the Collier County Water-Sewer District 'AD
BY%Sinature) DATE:
(Typed Name: Georgia A. Hiller )
d Title: Chairwoman, Board of County Co issioners
Recommend Approval by the District Utility Office
BY:(Signature) DATE;
FOOT Legal review
BY: (Signature) DATE:
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
BY: (Signature) DATE:
(Typed Name: Chris Smith
ATTEST Pages of 10
DWIGHT E. BROCK, CLERK Approved as to form and legality
BY: �
Y� Packet Page 1020- ,• .ntt R.Teach,Deputy County Attorney
9/10/2013 16.C.8.
710-010-Z
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION �tm UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
T ed Title: Director Trans•ortation Day I •ment ,======m
FEDERAL HIGHWAY ADMINISTRATION(if applicable)
BY: DATE:
(Typed Name:
(Typed Title: )'
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-08
ILIT
REQUIRED CONTRACT PROVISIONS FOR FEDERAL AID CONTRACTS OGG-01 Ea
(Appendix A of Assurances) Amok
Financial Project ID: 4156214-52-01 Federal Project ID:
County:COLLIER State Road No.: 90
District Document No: 3
Utility Agency/Owner(UAO): COLLIER COUNTY
During the performance of this Agreement,the Utility Agency Owner(UAO),for itself,its assignees and successors
in interest(hereinafter referred to as the UAO), agrees as follows:
(1) Compliance with Regulations: The UAO will comply with the Regulations of the FLORIDA
DEPARTMENT OF TRANSPORTATION(hereinafter referred to as the DEPARTMENT)relative to nondiscrimination
in Federally-assisted programs of the DEPARTMENT (Title 49, Code of Federal Regulations, Part 21, hereinafter
referred to as the"Regulations"),which are herein incorporated by reference and made a part of this contract.
(2) Nondiscrimination: The UAO,with regard to the work performed by it after award and prior to completion
of the UAO work,will not discriminate on the ground of race, color or national origin in the selection and retention of
subcontractors,including procurement of materials or leases of equipment. The UAO will not participate either directly
or indirectly in the discrimination prohibited by Section 21.5 of the Regulations,including employment practices when the
contract covers a program set forth in Appendix A&B of the Regulations.
(3) Solicitations: In all solicitations either by competitive bidding or negotiation made by the UAO for work to
be performed under a subcontract, including procurement of materials and leases of equipment, each potential
subcontractor or supplier shall be notified by the UAO of the UAO's obligations under this contract and the Regulations
relative to nondiscrimination on the ground of race, color or national origin. Aims
(4) "Buy America"Material Certification Requirements:The UAO will only use steel and iron produced in
the United States, in accordance with the Buy America provisions of 23 CFR 635.410, as amended. The UAO will
ensure that all manufacturing processes for this material occur in the United States. As used in this provision, a
manufacturing process is any process that modifies the chemical content, physical shape or size, or final finish of a
product, beginning with the initial melding and mixing and continuing through the bending and coating stages. A
manufactured steel or iron product is complete only when all grinding,drilling,welding,finishing and coating have been
completed.If a domestic product is taken outside the United States for any process,it becomes foreign source material.
These requirements are applicable to all steel and iron materials incorporated into the finished work, but are not
applicable to steel and iron items that are not incorporated into the finished work.The UAO will provide a certification
from the producer of steel or iron,or any product containing steel or iron as a component,stating that all steel or iron
furnished or incorporated into the furnished product was manufactured in the United States in accordance with the
requirements of this specification and the Buy America provisions of 23 CFR 635.410,as amended.Such certification
shall also include a statement that the product was produced entirely within the United States. The UAO will furnish
each such certification to the Florida Department of Transportation prior to incorporating the material into the project.
(5) Information and Reports: The UAO will provide all information and reports required by the Regulations,
or orders and instructions issued pursuant thereto,and will permit access to its books,records,accounts,other sources
of information,and its facilities as may be determined by the DEPARTMENT or the Federal Highway Administration to
be pertinent to ascertain compliance with such Regulations,orders and instructions. Where any information required of
the UAO is in the exclusive possession of another who fails or refuses to furnish this information, the UAO shall so
certify to the DEPARTMENT or the Federal Highway Administration as appropriate,and shall set forth what efforts it has
made to obtain the information.
(6) Sanctions for Noncompliance: In the event of the UAO's noncompliance with the nondiscrimination
provisions of paragraphs(1)through(4),the DEPARTMENT shall impose such contract sanctions as it or the Federal
Highway Administration may determine to be appropriate, including, but not limited to:
(a) withholding of payments to-the contractor under the Agreement until the UAO complies;and/or
(b) cancellation,termination or suspension of the Agreement, in whole or in part.
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-01DE
REQUIRED CONTRACT PROVISIONS FOR FEDERAL AID CONTRACTS
UTILITIES
(Appendix A of Assurances)
(7) Incorporation of Provisions: The UAO will include the provisions of paragraph(1)through(6)in every
subcontract,including procurement of materials and leases of equipment,unless exempt by the Regulations,order or
instructions issued pursuant thereto. The UAO will take such action with respect to any subcontract, procurement or
lease as the DEPARTMENT or the Federal Highway Administration may direct as a means of enforcing such provisions
including sanctions for noncompliance; provided, however, that in the event the UAO becomes involved in, or is
threatened with,litigation with a subcontractor,supplier or lessor as a result of such direction,the UAO may request the
State to enter into such litigation to protect the interests of the State,and,in addition,the UAO may request the United
States to enter into such litigation to protect the interests of the United States.
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