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Backup Documents 04/26/2011 Item #16C 2 ". 1"1 r fl 00.,_0 _.,. l~rro '. ., T .. ORIGINAL DOCUMENTS CHECKLIST & ROUTING ~~ C 2 TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office, The completed routing slip and original documents are to be forwarded to the Board Office only after the Board has taken action on the item) ROUTING SLIP Complete routing lines # I through #4 as appropriate for additional signatures, dates, and/or information needed, Ifthe document is already complete with the ( fth Ch " d l' th gh , l' #1 h gh #4 I th h kl' d fI diM' h II (I #5) excepllon 0 e alrman's signature, raw a me rou routmg mes t rou , comp ete e c ec' 1St, an orwar to an ItC e me Route to Addressee(s) Office Initials Date (List in routing order) 1. Commissioner Fred W. Coyle, Board of County Commissioners BCC Chairman 2.------------------------------------------ ------------------------------------------ 3.------------------------------------------- ------------------------------------------------- 4.------------------------------------------- ------------------------------------------------- 5. Ian Mitchell, Executive Manager Board of County Commissioners ~ th?-I II 6. Minutes and Records Clerk of Court's Office PRIMARY CONTACT INFORMATION (The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive summary, Primary contact information is needed in the event one of the addressees above, including Ian Mitchell needs to contact staff for additional or missing information, All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the item) Name of Primary Staff Nathan Beals Phone Number 252-2583 Contact Agenda Date Item was April 26, 2011 Agenda Item Number ]6 C 2 Approved by the BCC Type of Document Four of each: Resolution to authorize the Number of Original ]2 Attached chairman to sign an FDOT Utility Work Documents Attached Agreement, the Utility Work Agreement, Resolution to authorize the chairman to sign an FDOT Utility Work by Highway Contractor Agreement, the Utility Work by Highway Contractor Agreement Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is Yes N/A (Not appropriate. (Initial) Applicable) I. Original document has been signed/initialed for legal sufficiency, (All documents to be NB signed by the Chairman, with the exception of most letters, must be reviewed and signed by the Office of the County Attorney. This includes signature pages from ordinances, resolutions, etc. signed by the County Attorney's Office and signature pages from contracts, agreements, etc. that have been fully executed by all parties except the BCC Chairman and Clerk to the Board and possibly State Officials.) 2. All handwritten strike-through and revisions have been initialed by the County Attorney's N/A Office and all other parties except the BCC Chairman and the Clerk to the Board 3. The Chairman's signature line date has been entered as the date ofBCC approval of the NB document or the final negotiated contract date whichever is applicable. 4, "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's NB signature and initials are required. 5. In most cases (some contracts are an exception), the original document and this routing slip N/A should be provided to Ian Mitchell in the BCC office within 24 hours ofBCC approval. Some documents are time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions are nullified. Be aware of your deadlines! 6. The document was approved by the BCC on 04/26/201] (enter date) and all changes NB made during the meeting have been incorporated in the attached document. The Countv Attorney's Office has reviewed the changes, if app]icable. INSTRUCTIONS & CHECKLIST I: Forms/ County Forms/ Bee Forms/ Original Documents Routing Slip WWS Original 9,03,04, Revised 1.26,05, Revised 2,24,05 16C 2 EXECUTIVE SUMMARY Recommendation to a) approve a Utility Work Agreement and a Utility Work by Highway Contractor Agreement with the Florida Department of Transportation for the relocation of water and wastewater lines to facilitate the widening of State Route 84 (Davis Boulevard); b) approve two Florida Department of Transportation standard form resolutions authorizing the Chairman of the Board of County Commissioners to execute each agreement; and, c) approve the requisite budget amendment. OBJECTIVE: To establish the necessary work agreements for the relocation of water and wastewater lines to facilitate the widening of State Route 84 (Davis Boulevard). CONSIDERATIONS: The Florida Department of Transportation (FOOT) is planning to widen State Route 84 (Davis Boulevard) between Santa Barbara Boulevard and Radio Road. The Collier County Water-Sewer District has existing underground water and wastewater facilities that will require relocation to accommodate the road widening project. The relocations will be done by the highway contractor, The FOOT requires that the owners of the utility facilities, located within the limits of the road widening project, execute two agreements: the Utility Work Agreement and the Utility Work by Highway Contractor Agreement. The Utility Work Agreement is a general agreement that utility relocate work is needed during the project, and that the cost of relocation is the responsibility of the owner of the facilities; in this case, the Collier County Water-Sewer District (CCWSD). The Utility Work by Highway Contractor Agreement is an agreement to have the highway contractor perform the utility relocates for the CCWSD, and allows the CCWSD to elect to have the utility work removed from the contract ifthe bid exceeds the estimate by more than ten percent. The attached Resolutions, if approved, will authorize the Chairman of the Board of County Commissioners to execute the requisite agreements. Construction on the road widening project is anticipated to begin in January 2012. FISCAL IMPACT: Estimated construction cost is $247,000 for water facilities, and $265,000 for wastewater facilities (combined total of $512,000). Water user fee funds (Fund 412) in the amount of $247,000 are available in project 70045 for the relocation of water lines. A budget amendment to move $130,000 in wastewater user fee funds (Fund 414) from project 70050 to project 73045 is required to fully fund project 73045 for the relocation of wastewater lines. GROWTH MANAGEMENT IMPACT: This project will support the user fee project that is consistent with and will further the Goals, Objectives, and Policies of the Collier County Growth Management Plan. LEGAL CONSIDERATIONS: Section 337.403(1), Florida Statutes provides that: Any utility heretofore or hereafter placed upon, under, over, or along any public road or publicly owned rail corridor that is found by the authority to be unreasonably interfering in any way with the convenient, safe, or continuous use, or the maintenance, improvement, extension, or expansion, of such public road or publicly owned rail corridor shall, upon 30 days' written notice to the utility or its agent by the authority, be removed or relocated by such utility at its own expense except as provided in paragraphs (a)-(t). (Emphasis Added.) 16C2 The limited exception in paragraphs (a)-(f) do not apply in this instance. This item has been reviewed and approved by the County Attorney's Office and is legally sufficient. This item requires a majority vote. -JBW RECOMMENDATION: That the Board of County Commissioners, as Ex-officio the Governing Board ofthe Collier County Water-Sewer District, approve 1. a Utility Work Agreement with the Florida Department of Transportation; and, 2. a Utility Work by Highway Contractor Agreement with the Florida Department of Transportation; and, 3. two Florida Department of Transportation standard form resolutions authorizing the Chairman to execute each agreement; and, 4. the required budget amendment. PREPARED BY: Nathan Beals, Project Manager, Public Utilities Planning and Project Management Department. 2 16C2 fI-; '.""., '," "" MEMORANDUM Date: April 29, 2011 To: Nathan Beals, Project Engineer Public Utilities Engineering Dept. From: Ann Jennejohn, Deputy Clerk Minutes & Records Department Re: Resolution 2011-78: Authorizing execution of a Utility Work Agreement between the Collier County Water-Sewer District and Florida's DOT Attached for further processing is one (1) certified and three (3) original copies of the Resolution referenced above, adopted by the Board of County Commissioners on April 26, 2011. After forwarding to the appropriate parties for signature, we request a fully executed copy is returned to our office, thereby providing a complete document for the Board's Official Record. If you have any questions, please contact me at 252-8406. Thank you. Attachment STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION RESOLUTION 2011 - 7 8 UTILITY AGREEMENT 16C2 "l , ., 1 Financial Project 10: 195415-4-52-01 Federal Project 10: County/Section No: Collier State Road No. 84 (Davis Blvd.) District Document No: N/A Utility Agency/Owner (UAO): Collier County Water-Sewer District Form No. Utilities Rev, 00100 WHEREAS, the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FOOT", proposes to construct or reconstruct a transportation facility identified above, hereinafter referred to as the "Project"; and WHEREAS, in order for the FOOT to proceed with the Project, it is necessary for the Collier County Water- Sewer District hereinafter referred to as the "UAO", to execute and deliver to the FOOT the agreement identified as UTILITY WORK AGREEMENT (at UAO's Sole Expense), hereinafter referred to as the "Agreement"; NOW, THEREFORE, BE IT RESOLVED BY THE UAO: That Fred W. Coyle, as Chairman of the Collier County Board of County Commissioners and as ex-officio Chairman of the QoverninQ board of the Collier County Water-Sewer District, be hereby authorized and directed to execute and deliver the Agreement to the FOOT. A certified copy of this Resolution is to be forwarded to the FOOT along with the executed Agreement ". "," ATTEST: DWIGI:H~.~f3OFK, CbERK ON MOTION of LO,.,,,,1&Sloner 1=:...14 , seconded by CoN\~ lSSr<)Mt" j./; lItr', the above resolution was'jntroduced and passed by the UAO on the 2." day of AM; I , year of '2.0' I ....\\W..;;;i;,. . '''oS'\. \.\ .,'::~ ii' ,.....,.. ",s,<-,J"" '", :~'I 0..)' " ......... '.... ::: .. -,-:- ::: ,:,-" BOARD OF COUNTY COMMISSIONERS, ::C=e>LLlERCo'UNTY, FLORIDA, AS THE EX-OFFICIO CHAIRM N at:! '~HE GOVERNING BOARD OF THE COLLIER COUNTY WATE -:SE~~ DIST~ICl:. .~:'~ ..../ I' '/i" ~ ..t. '.... .'1" ,'i" 'r..:7' By.. .. By: ',' ..' ; J ! j. 'l ~ .;" Jennife}~~ ~ Assistant County Attorney \ f ^I"'lccc.. 1 ltem# ~,..'. ;".:-.> l' ~~~~: Lf'~-1l C:\Ray's Documents\Forms\Resolution Utility Agreement.doc 16C 2'~ Financial Project 10: 195416-4-52-01 Federal Project 10: County: Collier State Road No.: 84 District Document No: Utility Agency/Owner (UAO): Collier County Water-Sewer District STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) Form No 710-010-55 Utilities 10/04 THIS AGREEMENT, entered into this lb day of Apr;\ , year of 2011 ,by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FOOT, and COLLIER COUNTY WATER-SEWER DISTRICT, hereinafter referred to as the "UAO"; WITNESSETH: WHEREAS, the UAO owns or desires to install certain utility facilities which are located on the public road or publicly owned rail corridor identified below, hereinafter referred to as the "Facilities" (said term shall be deemed to include utility facilities as the same may be relocated, adjusted, or placed out of service); and WHEREAS, the FOOT, is currently engaging in a project which involves constructing, reconstructing, or otherwise changing a public road and other improvements located on a public road or publicly owned rail corridor identified as David Boulevard From East of Santa Barbara Blvd. to West of Radio Rd. (CR 856), State Road No,84, hereinafter referred to as the "Project"; 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, under the law of the State of Florida, the Utility Work must be performed at the sole cost and expense of the UAO; and WHEREAS, the FOOT and the UAO desire to enter into an agreement which establishes the terms and conditions applicable to the Utility Work; NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the FOOT and the UAO hereby agree as follows: 1. Performance of Utility Work a. The UAO shall perform the Utility Work in accordance with the utility relocation schedule attached hereto as Exhibit A and by this reference made a part hereof (the Schedule) and the plans and specifications for the Utility Work which have been previously approved by the FOOT (the Plans), said Plans being incorporated herein and made a part hereof by this reference. If the Schedule and the Plans have not been prepared as of the date of the execution of this Agreement, then the Utility Work Page 1 of 10 16C2 Y';~ STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) shall be performed in accordance with the Plans, and the Schedule that are hereafter prepared in compliance with the notice previously sent to the UAO which established the terms and conditions under which those documents are to be prepared. The FOOT's approval of the Plans shall not be deemed to be an adoption of the Plans by the FOOT nor a substitution for the proper exercise of engineering judgment and the UAO shall at all times remain responsible for any errors or omissions in the Plans. The Utility Work shall include all Facilities located on the Project and neither the failure of the UAO to include all of the Facilities in the Schedule, nor the Plans, nor the failure of the FOOT to identify this omission during its review of the Plans shall relieve the UAO of the obligation to make those Facilities part of the Utility Work. Time shall be of the essence in complying with the total time shown by the Schedule for the Utility Work as well as any and all interim time frames specified therein. The Utility Work shall be performed in a manner and using such methods so as to not cause a delay to the FOOT or its contractors in the prosecution of the Project. The UAO shall be responsible for all costs incurred as a result of any delay to the FOOT or its contractors caused by errors or omissions in the Plans or the Schedule (including location of the Facilities and the proper inclusion of all Facilities as part of the Utility Work as stated above); failure to perform the Utility Work in accordance with the Plans and Schedule; or failure of the UAO to comply with any other obligation under this Agreement or under the law. Form No 710-010-55 Utilities 10/04 b. All Utility Work shall be performed by UAO's own forces or its contractor at the UAO's sole cost and expense. The UAO shall be responsible for obtaining any and all permits that may be necessary to perform the Utility Work. The FOOT's Engineer (as that term is defined by the FOOT's Standard Specifications for Road and Bridge Construction) has full authority over the Project and the UAO shall be responsible for coordinating and cooperating with the FOOT's Engineer. In so doing, the UAO shall make such adjustments and changes in the Plans and Schedule as the FOOT's engineer shall determine are necessary for the prosecution of the Project and shall stop work or modify work upon order of the FOOT's engineer as determined by the FOOT's engineer to be necessary for public health, safety or welfare. 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 1 a. c. After the FOOT has received a proper Schedule and Plans, the FOOT will issue a notice to the UAO which authorizes the Utility Work to proceed. The UAO shall notify the appropriate FOOT office in writing prior to beginning the Utility Work and when the UAO stops, resumes, or completes the Utility Work. The Utility Work shall be performed under the conditions of, and 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 (Note: Intent of this line is to allow either attachment of or separate reference to the permit). 2. Claims Against UAO Page 2 of 10 16C 2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) a. In the event the FOOT's contractor provides a notice of intent to make a claim against the FOOT relating to the Utility Work, the FOOT will, in accordance with the FOOT's procedure, 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 claim. Form No. 710-010-55 Utilities 10/04 b. In the event the FOOT's contractor makes any claim against the FOOT relating to the Utility Work, the FOOT will notify the UAO of the claim and the UAO will cooperate with the FOOT in analyzing and resolving the claim within a reasonable time. Any resolution of any portion of the claim directly between the UAO and the FOOT's contractor shall be in writing, shall be subject to written FOOT concurrence and shall specify the extent to which it resolves the claim against the FOOT. 3. Out of Service Facilities No Facilities shall be left in place on FOOT's Right of Way after the Facilities are no longer active (hereinafter Placed out of service/Deactivated) unless specifically identified as such in the Plans. The following terms and conditions shall apply to Facilities Placed out of service/Deactivated, but only to said Facilities Placed out of service/Deactivated: a. The UAO acknowledges its present and continuing ownership of and responsibility for Facilities Placed out of service/Deactivated, b. The FOOT 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 FOOT in accordance with the provisions of subparagraph 3. 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 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 concerning the Facilities that are Placed out of service/Deactivated of the FOOT or other permittees using or seeking use of the right of way. e. The UAO shall remove the Facilities upon 30 days prior written request of the FOOT in the event that the FOOT determines that removal is necessary for FOOT 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. In the event that the Facilities that are Placed out of Service/Deactivated would Page 3 of 10 16C2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) not have qualified for reimbursement under this Agreement, 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. In the event that the Facilities that are Placed out of Service/Deactivated would have qualified for reimbursement only under Section 337.403 (1 )(a), Florida Statutes, 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 because such a removal would be considered to be a separate future relocation not necessitated by the construction of the project pursuant to which they were Placed out of service/Deactivated, and would therefore not be eligible and approved for reimbursement by the Federal Government. In the event that the Facilities that are Placed out of service/Deactivated would have qualified for reimbursement for other reasons, removal of the out of service Facilities shall be reimbursed by the FOOT as though the Facilities had not been Placed out of service/Deactivated. Removal shall be completed within the time specified in the FOOT'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. Form No 710-010-55 Utilities 10/04 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 the Facilities or the discharge of hazardous substances or materials from the Facilities. Nothing in this paragraph shall be interpreted to require the UAO to indemnify the FOOT for the FOOT's own negligence; however, it is the intent that all other costs and expenses of any nature be the responsibility of the UAO. 4. 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 FOOT be entitled to receive double recovery of damages: (1) Terminate this Agreement if the breach is material and has not been cured within 60 days from written notice thereof from the FOOT. (2) Pursue a claim for damages suffered by the FOOT. (3) 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 60 days from written notice thereof from the FOOT until such time as the Page 4 of 10 16C 2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) Form No, 710-010-55 UliIIties 10104 breach is cured. (4) Pursue any other remedies legally available. (5) Perform any work with its own forces or through contractors and seek repayment for the cost thereof under Section 337.403(3), Florida Statutes. b. In the event that the FOOT 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 60 days from written notice thereof from the UAO. (2) 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 and from any statutory obligations that either party may have with regard to the subject matter hereof. 5. Indemnification FOR GOVERNMENT-OWNED UTILITIES: To the extent provided by law, the UAO shall indemnify, defend, and hold harmless the FOOT 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 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. When the FOOT 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 FOOT 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 FOOT will determine whether to require the participation of the UAO in the defense of the claim or to require the UAO to defend the FOOT in such claim as described in this section. The FOOT's failure to notify the UAO of a claim shall not release the UAO from any of the requirements of this section. The FOOT 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. Page 5 of 10 16C 2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) FOR NON-GOVERNMENT -OWNED UTILITIES; Form No 710-010-55 Utilities 10/04 The UAO shall indemnify, defend, and hold harmless the FOOT 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 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 FOOT'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 FOOT'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 FOOT is solely negligent. Only a final adjudication or 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 FOOT's delay in notifying the UAO of a claim shall not release UAO of the above duty to defend. 6. Force Majeure Neither the UAO nor the FOOT 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. 7. Miscellaneous a. The Facilities shall at all times remain the property of and be properly protected and maintained by the UAO in accordance with the then current Utility Accommodation Manual and the current utility permit for the Facilities. b, Pursuant to Section 287.058, Florida Statutes, the FOOT 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, Page 6 of 10 16C2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) and made or received by the UAO in conjunction with this Agreement. Form No, 710-010-55 Utilities 10/04 c. 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 FOOT has manuals and written policies and procedures which shall be applicable at the time of the Project and the relocation of the Facilities and except that the UAO and the FOOT may have entered into joint agreements for Utility Work to be performed by FOOT's highway contractor. To the extent that such a joint agreement exists, this Agreement shall not apply to Facilities covered by the joint agreement. Copies of FOOT manuals, policies, and procedures will be provided to the UAO upon request. d. 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 provisions hereof. e. Time is of the essence in the performance of all obligations under this Agreement. 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 FOOT 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, Project Manager Collier County Public Utilities Division 3339 East Tamiami Trail, Suite 303 Naples, FL 34112 If to the FOOT: Ra mond Mercer, Utili Pro'ect Mana er FOOT District 1 Utilities Office 801 N. Broadwa Ave., MS 1-11 Bartow, FL 33830 8. Certification This document is a printout of an FOOT form maintained in an electronic format and all revisions thereto by the UAO in the form of additions, deletions, or substitutions are Page 7 of 10 .lOve STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 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." Form No 710-010-55 Utilities 10/04 Page 8 of 10 1~1 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) You MUST signify by selecting or checking which of the following applies: Form No, 710-010-55 Utilities 10/04 cgJ D 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. UTILITY: Collier County Water-Sewer District BY: DATE: Lllu/II \\"\~~ \\\ , iii \,\,\, ." ,,, , III (Typed Name: Fred W. Coyle) ........,\\_' - . 11-; ~ ~,~ . ~ , - ." ::: :-,..... . ~ . (Typed Title: Chairman, Collier Board of County ::: - . " , " Commissioners)AS Ex-Officio the governing board of th~ eqlii~r coun~r ~ Water-Sewer District ~~, . Recommend Approval by the District Utility Office : ;j/ . -:';. '~', <"".> ,~:~ /1 -' . , "r '.' ..', IJJ)) ',,' ",\\\' 11111111111\\\' , , . . .' ~. ~-:-: BY: (Sianature) DATE: FOOT Legal review BY: (Sianature) DATE: District Counsel STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY: (Sianature) DATE: (Typed Name: ) (Typed Title: ) Page 9 of 10 16C2 '4 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) Form No, 71~10.55 Utilities 10/04 FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: ) (Typed Title: ) Approved as to form & legal sufficiency ~. .~-u~ AssI t County Attorney -:L. .,,, "" L :s-~u\rt..(L 9................" -~'...< *' ,~. 'J Page 10 of 10 16C2'1 MEMORANDUM Date: April 29, 2011 To: Nathan Beals, Project Engineer Public Utilities Engineering Dept. From: Ann Jennejohn, Deputy Clerk Minutes & Records Department Re: Resolution 2011-79: Authorizing execution of an agreement (Utility Work by a Highway Contractor) between the Collier County Water-Sewer District and the Florida Department of Transportation Attached for further processing is one (1) certified and three (3) original copies of the Resolution referenced above, adopted by the Board of County Commissioners on April 26, 2011. After forwarding to the appropriate parties for signature, we request a fully executed copy is returned to our office, thereby providing a complete document for the Board's Official Record. If you have any questions, please contact me at 252-8406. Thank you. Attachment STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION RESOLUTION 2011 - 7 9 UTILITY AGREEMENT 16C2 Form No. Utilities Rev, 00100 Financial Project 10: 195415-4-52-01 Federal Project 10: County/Section No: Collier State Road No. 84 (Davis Blvd.) District Document No: N/A Utility Agency/Owner (UAO): Collier County Water-Sewer District WHEREAS, the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FOOT", proposes to construct or reconstruct a transportation facility identified above, hereinafter referred to as the "Project"; and WHEREAS, in order for the FOOT to proceed with the Project, it is necessary for the Collier County Water- Sewer District hereinafter referred to as the "UAO", to execute and deliver to the FOOT the agreement identified as UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE), hereinafter referred to as the "Agreement"; NOW, THEREFORE, BE IT RESOLVED BY THE UAO: That Fred W. Coyle, as Chairman of the Collier County Board of County Commissioners and as ex-officio Chairman of the qoverninq board of the Collier County Water-Sewer District, be hereby authorized and directed to execute and deliver the Agreement to the FOOT. A certified copy of this Resolution is to be forwarded to the FOOT along with the executed Agreement. ON MOTION of COlV\m~;~l\er F.~14 ,seconded by (0,......135;;,_' /l.l1rr ,the above resolution was introduced and passed by the UAO on the 2.(, day of Afro'l , year of 2.011 .....11 \. ATTEST: DWIGHT E. BR0CK"GLERK . ~ ~,;:' BOARD OF COUNTY COMMISSIONERS, COt;UER COUNTY,} FLORIDA, AS THE EX-OFFICIO CHAIRM OF THE GOVERNIN~"i' BOARD OF THE COLLIER COUNTY WAT -SEWE~ DISTRICT ' , { ~ r\.,/ ~. " By: '; (; H~'~ Approval for form and legal sufficiency: ~-6~~ Jennifer B, e Assistant County Attorney Item # C:\Ray's Documents\Forms\Resolution Utility Agreement.doc 16C2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No, 710-010-22 UTILITIES 10/04 Financial Project 10: 195416-4-52-01 Federal Project 10: County: Collier (03001) State Road No.: 84 District Document No: 1 Utility Agency/Owner (UAO): Collier County Water-Sewer District THIS AGREEMENT, entered into this 2. b day of fl~r;l , year of 20 II ,by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FOOT", and Collier County Water-Sewer District, hereinafter referred to as the "UAO"; WITNESSETH: WHEREAS, the FOOT, is constructing, reconstructing, or otherwise changing a portion of a public road or publicly owned rail corridor, said project being identified as State Road No. 84 (Davis Blvd,) From East of Santa Barbara Blvd. to West of Radio Rd. (CR 856), State Road No.: 84, 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 FOOT 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 FOOT'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 FOOT 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 Mav 9th, year of 2011. b. The Plans Package shall be in the same format as the FOOT'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 FOOT's Utility Accommodation Manual and the FOOT's Plans Preparation Manual in effect at the time the Plans Package is prepared, and the FOOT's contract documents for the Project. If the FOOT's Plans Preparation Manual has been updated and conflicts with the Utility Accommodation Manual, the Utility AccommodatioA 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 FOOT's guidelines on preparation of technical special provisions and shall not Page 1 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) 16C 2 Form No 710-010-22 UTILITIES 10104 duplicate or change the general contracting provisions of the FOOT's Standard Specifications for Road and Bridge Construction and any Supplemental Specifications, Special Provisions, or Developmental Specifications of the FOOT for the Project. f. UAO shall provide a copy of the proposed Plans Package to the FOOT, and to such other right of way users as designated by the FOOT, for review at the following stages: Phase 3-r. Prior to submission of the proposed Plans Package for review at these stages, the UAO shall send the FOOT a work progress schedule explaining how the UAO will meet the FOOT'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 FOOT finds any deficiencies in the Plans Package during the reviews performed pursuant to Subparagraph f. above, the FOOT 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 FOOT's review and approval of the documents shall not relieve the UAO from responsibility for subsequently discovered errors or omissions. h, The FOOT shall furnish the UAO such information from the FOOT'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 FOOT. I. 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: N/A 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 FOOT's expense, but not previously identified as such, the UAO shall file a claim with the FOOT 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 FOOT'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 FOOT. I. 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: _ (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 FOOT 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 FOOT's requirements. c. If the portion of the bid of the contractor selected by the FOOT which is for performance of the Utility Work exceeds the FOOT's official estimate for the Utility Work by more than ten percent (10%) and the FOOT 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 FOOT's contract by notifying the FOOT in writing within seven calendar days from the date that the UAO is notified of the bid amount. Unless this election is made, the Utility Work shall be performed Page 2 of 9 16C 2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No 710-010-22 UTILITIES 10104 as part of the Project by the FOOT's contractor. d. If the UAO elects to remove the Utility Work from the FOOT's contract in accordance with Subparagraph 2. c" the UAO shall perform the Utility Work separately pursuant to the terms and conditions of the FOOT'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 FOOT or the FOOT'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: N/A and will furnish the FOOT with daily diary records showing approved quantities and amounts for weekly, monthly, and final estimates in accordance with the format required by FOOT procedures, f. Except for the inspection, testing, monitoring, and reporting to be performed by the UAO in accordance with Subparagraph 2. e., the FOOT will perform all contract administration for its construction contract. g. The UAO shall fully cooperate with the FOOT and the FOOT's contractor in all matters relating to the performance of the Utility Work, h. The FOOT's engineer has full authority over the Project and the UAO shall be responsible for coordinating and cooperating with the FOOT's engineer, In so doing, the UAO shall make such adjustments and changes in the Plans Package as the FOOT's engineer shall determine are necessary for the prosecution of the Project. I. The UAO shall not make any changes to the Plans Package after the date on which the FOOT's contract documents are mailed to Tallahassee for advertisement of the Project unless those changes fall within the categories of changes which are allowed by supplemental agreement to the FOOT'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 FOOT, 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 FOOT'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 FOOT. 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 $457,000. At such time as the FOOT prepares its official estimate, the FOOT shall 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 FOOT to the cost of the Utility Work, or to elect to have the Utility Work removed from the FOOT's contract and performed separately pursuant to the terms and conditions set forth in Subparagraph 2. d. hereof. c. At least!!:l1m (30 ) calendar days prior to the date on which the FOOT advertises the Project for bids, the UAO will pay to the FOOT an amount equal to the FOOT's official estimate; plus .f.% for 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). Page 3 of9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) 16C 2 Form No 710-010-22 UTiliTIES 10104 d. Payment of the funds pursuant to this paragraph will be made (choose one): I:8J directly to the FOOT for deposit into the State Transportation Trust Fund, o as provided in the attached Memorandum of Agreement between UAO, FOOT 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 FOOT Comptroller's Office prior to execution of this agreement. e. If the portion of the contractor's bid selected by the FOOT 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 FOOT 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 FOOT or prior to posting of the accepted bid, whichever is earlier, pay an additional amount to the FOOT to bring the total amount paid to the total obligation of the UAO for the cost of the Utility Work, plus Allowances and 10% Contingency Fund. The FOOT 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 FOOT 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 FOOT 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 FOOT 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 FOOT 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 FOOT accordingly, The UAO agrees to provide, in advance of the additional work being performed, adequate funds to ensure that cash on deposit with the FOOT is sufficient to fully fund its share of the project costs. The FOOT shall notify the UAO as soon as it becomes apparent the actual costs will overrun the award amount; however, failure of the FOOT 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 FOOT 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 FOOT 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 FOOT determines that the work is necessary, the FOOT may proceed to perform the work and recover the cost thereof pursuant to 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 FOOT, pay to the FOOT 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, I. Upon final payment to the Contractor, the FOOT 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 Page 4 of 9 16C 2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10104 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 FOOT 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 FOOT 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 FOOT's contractor provides a notice of intent to make a claim against the FOOT relating to the Utility Work, the FOOT 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 claim, c. In the event the FOOT's contractor makes any claim against the FOOT relating to the Utility Work, the FOOT will notify the UAO of the claim and the UAO will cooperate with the FOOT in analyzing and resolving the claim within a reasonable time, Any resolution of any portion of the claim directly between the UAO and the FOOT's contractor shall be in writing, shall be subject to written FOOT concurrence and shall specify the extent to which it resolves the claim against the FOOT. d. The FOOT 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 FOOT to the FOOT'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 FOOT 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 FOOT 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 loca', state or federal laws and regulations and in 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 FOOT or other permittees using or seeking use of the right of way. e. The UAO shall remove the Facilities at the request of the FOOT in the event that the FOOT determines that removal is necessary for FOOT use of the right of way or in the event that the FOOT Page 5 of 9 16C2 ~ STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No 710'{)10-22 UTILITIES 10104 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 FOOT'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 FOOT'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 FOOT 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 FOOT. (2) Pursue a claim for damages suffered by the FOOT, (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 FOOT to third parties. (4) If the Utility Work is reimbursable under this Agreement, offset any damages suffered by the FOOT 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 FOOT 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 FOOT. (6) Pursue any other remedies legally available. (7) Perform any work with its own forces or through contractors and seek repayment for the cost thereof under Section 337.403(3), Florida Statutes. b. In the event that the FOOT 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. Page 6 of 9 16C2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10/04 (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 FOOT 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, 8. Indemnification FOR GOVERNMENT-OWNED UTILITIES, To the extent provided by law, the UAO shall indemnify, defend, and hold harmless the FOOT 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 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. When the FOOT 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 FOOT 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 FOOT will determine whether to require the participation of the UAO in the defense of the claim or to require the UAO to defend the FOOT in such claim as described in this section. The FOOT's failure to notify the UAO of a claim shall not release the UAO from any of the requirements of this section. The FOOT 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-OWNEO UTILITIES, The UAO shall indemnify, defend, and hold harmless the FOOT 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 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 FOOT'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 FOOT'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 Page 7 of 9 16C 2 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No, 710-010-22 UTILITIES 10/04 UAO is not liable or determines the FOOT 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 FOOT'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 FOOT's contractor has that obligation as part of the Utility Work pursuant to the FOOT's specifications, c. The FOOT 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 FOOT 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 FOOT 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, Project Manager Collier County, Public Utilities Division 3339 E. Tamiami Trail, Suite 303, Naples, FL 33112 If to the FOOT: Raymond Mercer, Utility Project Manager, FOOT District 1 Utilities Office 801 N, Broadway Ave., MS 1-11 Bartow, FL 33830 10. Certification This document is a printout of an FOOT 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. Page 8 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) 1 F6NOCo~2 UTILITIES 10/04 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. o 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, UTILITY: Collier County Water-Sewer District D~~Ii~\:,~!t'Af"ll .. .,... ,~'. lj,/" ~"~' (Typed Name: Fred W. Covle) ~,...,\,.>:.." . ' .,' '< ...::: ,:-; . '..:. (Typed Title: Chairman Collier Board of County Commissioners, As ~~f:fciO _th~ ~ Governing Board of the Collier County Water-sew~~:qi~rict -- ~ "-;" '. .- -:'~ ~~) ". Recommend Approval by the District Utility Office ~ ...;..., J'" ,'~' ,"1", \....,'\' JjJUillIP\"~ ' BY: (Sianature) DATE: FOOT Legal review BY: (Sianature) DATE: District Counsel STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY: (Sianature) DATE: (Typed Name: _) (Typed Title: ) FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: ) ,\~'JI' (Typed Titl~:~l_."" .~,~-). , ~..' (,'IIiF' ~. ATtl5lrl' ~:' t ~-, -} - '.J \" _ !" <:'\: .. . 1JW)8Irr "001, CURl ~ - - - " -,") "\,pproved as to form & legal sufftclency c. Page 9 of 9 ~ h"- ~~)''''~ Asslstan County Attorney :::)~ y0f',.) \ ~E.. ~ ~. ~~ \,.. t: