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Agenda 09/29/2009 Item #16B 7 Agenda Item No. 16B7 September 29,2009 Page 1 of 11 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners approve the Line Relocation Cooperation Agreement with the Orange Tree Utility Company and authorize the Chairman to sign the document- Project #60044. OBJECTIVE: Recommendation that the Board of County Commissioners approve the Line Relocation Cooperation Agreement with Orange Tree Utility Company, and authorize the Chairman to sign the document. CONSIDERATIONS: The Transportation Engineering and Construction Management Department (TECM) is in the process of bidding the Oil Well Road project for construction. During the design process, Orange Tree Utility Company (OTU) was informed of its obligation under Florida Statute S 337.403 to relocate its utility lines located in the County Right-of-Way. Due to pending litigation in the case of Orange Tree Utility Company v. Collier County, Case No. 07-2333 (the "litigation"), OTU has refused to incur the cost of relocating its utility lines. In order to expedite the design process, TECM included the utility relocation design into the road design with the intention of seeking reimbursement for the actual cost of the utility work as authorized under Florida Statute S 337.403." The attached Line Relocation Cooperation Agreement memorializes OTU and the County's agreement to cooperate as necessary to relocate and place in service during the road project. The Agreement also preserves the County's right to seek reimbursement for the actual cost of the utility work, conditioned upon the outcome of the litigation, whereby if the litigation is decided in favor of the County, the County is responsible for the utility relocation costs; alternatively, if OTU prevails it will be responsible for reimbursing the County for the total utility relocation costs. On August 28, 2009, the court entered summary judgment in favor of the County and against OTU but that final order has been appealed to the Second District Court of Appeal. With the upcoming road construction project, it is imperative that the County have cooperation from OTU to safely construct and incorporate the relocated utility system. FISCAL IMPACT: The cost to design the Utility Relocation is $372,000 and the estimated cost to construct the Utility Relocation is $1,800,000. TECM is currently absorbing the cost as part of the Oil Well Road Project; however, TECM will seek reimbursement from Orange Tree Utility Company per Florida Statute 337.403 as provided herein. LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office and is a legally sufficient agenda-SRT. GROWTH MANAGEMENT IMPACT: There are no Growth Management Impacts associated with this Agreement. RECOMMENDA TION: The Board of County Commissioners approves the Line Relocation Cooperation Agreement with Orange Tree Utility Company and authorizes the Chairman to sign the document. Prepared by: Kevin H. Dugan, Project Manager, TECM Agenda Item No. 1687 September 29,2009 Attachments: Line Relocation Cooperation Agreement Page 2 of 11 -~ Page I of2 Agenda Item No. 1687 September 29. 2009 Page 3 of 11 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16B7 Item Summary: Recommendation that the Board of County Commissioners approves the Line Relocation Cooperation Agreement with the Orange Tree Utility Company and authorize the Chairman to sign the Agreement. Project #60044. Meeting Date: 9/29/2009 9:00:00 AM Prepared By Kevin H. Dugan Project Manager Date Transportation Engineering and 7/15/2009 1 :08:27 PM Transportation Services Construction Approved By -. Gary Putaansuu Principal Project Manager Date Transportation Services Transportation Engineering and 7/17/20093:19 PM Construction Approved By Lisa Taylor Management/Budget Analyst Date Transportation Services Transportation Administration 7/17/20093:25 PM Approved By Norm E. Feder, AICP Transportation Division Administrator Date Transportation Services Transportation Services Admin. 7/30/20094:08 PM Approved By Therese Stanley Grants Coordinator Date Transportation Transportation Administration 8/21/2009 4:05 PM Approved By Scott R. Teach Assistant County Attorney Date County Attorney County Attorney Office 9/18/2009 5:08 PM Approved By Najeh Ahmad Director Date Transportation Services Transportation Engineering & Construction Management 9/21/20091:04 PM Approved By Pat Lehnhard Executive Secretary Date Transportation Services Transportation Services Admin 9/21/20093:04 PM Approved By OMS Coordinator OMS Coordinator Date file://C:\Agendatest\export\135-September 29,2009\16. CONSENT AGENDA\16B. TRAN... 9/23/2009 Page 20f2 Agenda Item No. 1687 September 29, 2009 Page 4 of 11 County Manager's Office Office of Management & Budget 9/21/2009 3:44 PM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 9/21/20094:30 PM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County Commissioners County Manager's Office 9/22/2009 1: 19 PM - <'-' file://C:\Agendatest\export\135-September 29,2009\16. CONSENT AGENDA\16B. TRAN... 9/23/2009 --,. ..--- Agenda Item No. 1687 September 29, 2009 Page 5 of 11 LINE RELOCATION COOPERATION AGREEMENT TmS AGREEMENT is made and entered into by and between Collier County, a I political subdivision of the State of Flori~ acting by and through its Board of County Commissioners, ("County"), and Orange Tree Utility Company, a Florida corporation ("Orange Tree"). WITNESSETH WHEREAS, the County is preparing roadway construction plans and contract documents to widen and otherwise improve a segment of Oil Well Road ("Road Project"); and, WHEREAS, the County is relocating, and/or removing existing Orange Tree utility lines within the right.of-way corridor as part of the Road Project; and, WHEREAS, the County and Orange Tree have determined that the Road Project and the Utility Work will be most expeditiously and economically carried out by each party entering into this Line Relocation Cooperation Agreement ("Agreement"); and, WHEREAS, by entering into this Agreement neither party relinquishes any of their rights in the case of Orange Tree Utility Co. v. Collier Connty, Case No. 07-2333-CA, pending in the Circuit Court of the 20th Judicial Circuit in and for Collier County, Flori~ or in the 1986 , Settlement Agreement and the Zoning and Development Document, Collier County Ordinance 87-13, or subsequent, related agreements, ordinances or claims (the "Lawsuit"). NOW, THEREFORE, in consideration of ten dollars, and the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, County and Orange Tree agree as follows: 1. Particioation in the A2reement The County and Orange Tree shall work cooperatively to accomplish all facets of the Utility Work. The County will endeavor to complete as expeditiously as possible all work set forth in this Agreement and any Supplemental Agreement(s) and/or Change Order(s), which may be approved by the parties subsequent to execution of this Agreement. 2. Utility Work The Florida Department of Environmental Protection ("DEP") has issqed Permit No. 294904-001-DS for the water main relocation portion of the Utility Work and Permit No. 50692-025- WDC/CM for the wastewater force main relocation portion of the Utility Work (the "Permits") based on plans and specifications attached hereto or otherwise identified in Exhibit "A" ("Utility Work"). The Utility Work shall be a turnkey project by the County. The County shall be responsible to obtain a Collier County Right-of-Way Use Permit as may be required for the Utility Work. Agenda Item No. 1687 September 29,2009 Page 6 of 11 3. Preparation of Proiect Documents 3.1 The parties acknowledge that the design work (plans and specifications) for the Utility Work as of the date of this Agreement are less than 100% complete. The COWlty agrees to timely provide Orange Tree with updated plans and specifications as available through 100% design completion. After submission of the 100% complete design plans, the parties agree to meet to review the plans. Orange Tree shall provide any comments, recommend modifications, and identify any inconsistencies or inaccuracies. The quality of materials and methods shall be comparable to, or better than recent additions to the Orange Tree facilities currently in place. The County shall make appropriate adjustments to the design, provided the changes do not materially add to the cost or schedule of the project. Thereafter the definition of Utility Work set forth herein shall be modified to reference the 100% complete design plans. 3.2 The County shall provide to Orange Tree the cost estimates, bid tabulations and related bid documents required for the Utility Work. The County shall prepare all Utility Work project documents in accordance with industry standards, the standards adopted by the Florida Deparbnent of Transportation and DEP, and other relevant professional standards. 3.3 The County shall provide Orange Tree with three (3) sets of plans for the Utility Work. The Utility Work represented on these plans, as well as any revisions that might be made, shall be in conformance with all permitting requirements and with the plans and specifications providing the basis for the Utility Work. The County shall provide Orange Tree with three (3) sets of specifications fully describing the Utility Work in detail as the same shall be illustrated on I the aforementioned plans. The format for the Utility Work specifications shall be the same as I I the County's specifications for the Road Project. 3.4 The County's incorporation of the Utility Work into the Road Project shall not operate as a waiver of any of the County's or Orange Tree's rights under the Lawsuit. The County expressly acknowledges and agrees that Orange Tree shall not be held liable or responsible for any claims or damages that may result from any actions, omissions, or negligence of the County either through review, approval, concurrence, or incorporation of any of the Utility Work in the Road Project. 4. Biddin2 & Award 4.1 The County shall assemble a complete bid package for the Road Project that combines the bid documents for the roadway construction and the bid documents for the Utility Work. The County shall provide notice to Orange Tree and a representative of Orange Tree may attend the pre-bid conference and the bid opening at the place and time designated by the County. The County shall provide Orange Tree's representative with copies of all responsive bids following the bid opening. The County shall notify Orange Tree within ten (10) days of the bid opening of the apparent lowest responsible and responsive bidder ("Project Construction Contractor"). 4.2 Based on County plans and specifications for the Utility Work, including engineering design, permitting, and inspection, the County estimates that the construction cost of the Utility 2 L ._-"-,~,," - Agenda Item No. 1687 September 29, 2009 Page 7 of 11 Work will be $1,876,622.00 ("Cost Estimate"). This construction cost. estimate includes a conservative approach to goods and services pricing. If, however, unanticipated costs are incurred during the course of the Utility Work, which raise the actual cost to an amount capped at no greater than 10% above the Cost Estimate ("Utility Work Total Cost"), that amount shall be considered a reasonable and prudent investment by the parties. The parties agree that the Utility Work Total Cost for the Utility Work is considered prudent for cost recovery purposes. 5. Construction 5.1 The County shall provide for all project site inspection, testing, and monitoring of the Utility W orIc. The County's field inspector shall provide Orange Tree with a daily progress report on the Utility Work. The progress report shall describe in detail work completed and accepted by County, any deviations from the plans and/or specifications, a description of Utility Work accomplished that day, and any unusual occurrences. 5.2 All adjustments, relocations, reconnection tie-ins, repair of damaged Orange Tree facilities, and other miscellaneous Utility Work that is not included in the construction contract will be the sole responsibility of County, which may be assigned to the Project Construction Contractor. Any such additional miscellaneous Utility Work will be handled in an expedient manner. Orange Tree shall not be responsible for any damages, cost, and liability due to any delays incurred as a result of such additional and/or miscellaneous Utility Work. 5.3 Attached as Exhibit "B" is contact information for a representative of Orange Tree I - and the County (with the Project Construction Contractor to be added when available), each of I whom will be the contact for decisions to be made with regard to the Road Project and Utility Work including, but not limited to, witnessing and approving testing, tie-ins, hot taps, pressure tests, flushing and other such matters. Each party may change its point of contact by written notice to the other parties. County shall provide Orange Tree with notice of all Project Construction Contractor meetings, all Utility Work inspections, and other meetings relevant to the Utility Work during the construction period, which Orange Tree may elect to attend at its option. 6. Construction Close-Out and Guarantee 6.1 At its optio~ Orange Tree may participate in the County's final inspection of the Utility Work construction, which inspection shall be hereinafter referred to as the "Final Project Inspection. " In the event Orange Tree elects not to participate in the aforementioned Final Project Inspection, Orange Tree shall notify the County in writing of such election. If Orange Tree elects not to participate in the Final Project Inspection and fails to notify the County in writing of its election not to participate, the Utility Work shall be deemed to be fully accepted and approved by Orange Tree in accordance with the Utility Work plans and contract documents. 6.2 Notwithstanding the provisions in section 6.1, in the event Orange Tree has determined that the Utility Work contains deficiencies that require correction. Orange Tree shall so inform the County and the County shall promptly work with the Project Construction Contractor to correct same. Orange Tree may then elect to accept the Utility Work subject to 3 Agenda Item No. 1687 September 29, 2009 Page 8 of 11 subsequent correction by the County or Project Construction Contractor, or delay acceptance subject to correction. 6.3 Final DEP approvals and authorization to place Utility Work in service shall be a County responsibility. Orange Tree shall cooperate as necessary in placing the Utility Work in service. County shall provide timely notice of the interconnection of the Utility Work with the existing Orange Tree facilities and shall take such action as is necessary to limit and remedy any resulting service interruption. 6.4 Orange Tree shall promptly receive three (3) signed and. sealed sets of record drawings and as-built plans for the Utility Work from the County. 6.5 Subject to section 7.3, upon issuance by the County of a Letter of Final Construction -- Acceptance, or its equivalent, to the Project Construction Contractor, all Utility Work performed pursuant to this Agreement shall become the sole property and responsibility of Orange Tree and all utility lines and facilities installed pursuant to this Agreement shall be deemed to be the property of Orange Tree. Such facilities shall be conveyed free and clear of all liens and encumbrances. 6.6 County shall obtain a written warranty, completion, and performance and maintenance bonds from the Project Construction Contractor for a minimum period of twelve (12) months from the Utility Work placed in service date with DEP. i 7. Constmction Pavments 7.1 All payments due the Project Construction Contractor shall be made by the County in accordance with the general provisions of the Road Project and Utility Work contract documents. The County shall provide a copy of paid invoices and contractor releases (including final release oflien) to Orange Tree at 4500 Executive Drive, #110 Naples, FL 34119. 7.2 The County will seek reimbursement for the actual cost of the Utility Work, in an amount not to exceed the Utility Work Total Cost, under Florida Statute 337.403 (3), which states: "Whenever an order of the authority requires such removal or change in the location of any utility .. . and the owner thereof fails to conform to the order ... the authority shall proceed to cause the utility to be removed. The expense thereby incurred shall be paid out of any money available therefore, and such expense shall, except as provided in subsection (1), be charged against the owner and levied and collected and paid into the fund from which the expense of such relocation was paid." 7.3 Notwithstanding the foregoing, the parties agree that Orange Tree's obligation to reimburse the County for the cost of the Utility Work shall be conditioned upon the outcome of the Lawsuit. That is, if the Lawsuit is decided in favor of the County, the County shaH remain responsible for all costs associated with the Utility Work. In the event the Lawsuit is decided in favor of Orange Tree, the Orange Tree facilities will include the Utility Work. In that case, the Utility shall be responsible for reimbursement of the County's costs not to exceed the Total Utility Work Cost. The parties agree that, in that event, Orange Tree shall be given a resonable 4 L .""~~-~,~ " - Agenda Item No. 1687 September 29.2009 Page 9 of 11 period of time to secure financing under commercially-reasonable terms in order to reimburse the County, and to seek approval from the Collier County Water and Wastewater Authority to recover that cost through customer rates and charges as a part ofit's regulated utility operation. I 8.lndemnitv and Claims 1 8.1 The County agrees,.to.the extent permitted by law, to indemnify, defend, and hold Orange Tree and all its officers, agents, and employees harmless from any Claims, .losses, demands, or causes of action of whatever kind or nature that Orange Tree, its officers, agents, or employees, may sustain as a result of the Utility Work, other than as may be the result of the negligence or willful misconduct of Orange Tree. Further, the County and Orange Tree agree to indemnifY, defend, and hold one another, and all their officers, agents, and employees hannless from any claims, losses, demands, or causes of action of whatever kind or nature that either party, its officers-Lagents, or employees, may sustain as a result of or emanating from the terms and conditionscont8ined in this Agreement, other than as may be the result of the negligence or willful misconduct of the party making the claim. Notwithstanding all other provisions in this Agreement, and notwithstanding all existing or future amendments to this Agreement, and notwithstanding all insurance coverage Whatsoever throughout the entire term of this Agreement, including all term extensions, if any, the County's promise to indemnify, defend' and hold harmless shall not constitute a waiver of sovereign immunity beyond the limits set forth in Florida Statutes, Section 768.28, nor shall the same be construed to constitute agreement by either party to indemnifY the other party for such other party's negligent, willful or intentional acts or omissions. i 8.2 If the County or Orange Tree has a claim, or reason to believe it has a claim, asa result of the Project Construction Contractor's performance or lack of performance with regard to the Utility Work, the County agrees to fully pursue such claim, notwithstanding the turnover ; of Utility Work to Orange Tree. Orange Tree shall cooperate With the County in pursuing any such claim and shall provide access to the Utility Work as needed in support thereof. 8.3 The County shall furnish Orange Tree with proof of self insurance or a certificate(s) of insurance prior to commencing construction on the Utility Work written on companies licensed to do business in the State of Florida. Coverage shall be consistent with the insurance requirements for other County projects of this type and shall include commercial general liability insurance coverage written on an occurrence form including bodily injury and property damage liability for premises, operations, independent contractors, products and completed operations, contractual liability, broad form property damages, and personal injury. Said certificate shall provide that, except for non-payment of premiwns, insurance coverage shall not be canceled or reduced by the insurance carrier without at least thirty (30) days prior written notice to Orange Tree. The County reserves the right to alter or amend the insurance requirements from time to time based on scope of the contract, risk factors and liability. Orange Tree and Roberto Bollt Trustee, shall be named an additional insured on any policies related to the Utility Work, except worker's compensation. 5 Agenda Item No. 1687 September 29, 2009 Page 10 of 11 9. Miscellaneous 9.1 The laws of the State of Florida shall govern this Agreement. Venue for any suit involving this Agreement shall be in Collier County, Florida. No assignment, delegation, or transfer, of this Agreement shall be made unless approved in writing by all parties. In the event that any provision of this Agreement shall for any reason be determined invalid, illegal, or unenforceable, all other provisions of this Agreement, as amended, modified, supplemented, or otherwise affected by such action, shall remain in full force and effect. This Agreement may only be amended by in writing duly executed by the County and Orange Tree. This Agreement shall be binding upon and inure to the benefit of the respective successors, permitted assigns, administrators and trustees of the County and Orange Tree. This Agreement may be executed in duplicate originals, any of which shall be regarded for all purposes as an original and all of which shall constitute one and the same instrument. 9.2 Notwithstanding anything herein to the contrary, nothing in this Agreement shall be considered an admission by either party in the Lawsuit, or a compromise of any rights or entitlements with regard to the Agreement, development orders or other documents which are the subject of the Lawsuit. 9.3 The parties acknowledge that it is the County's standard procedure to require third parties to execute agreements in advance, which agreements are then presented to the Board of County Commissioners for approval and execution. However~ there is noset1ime. frame for County approval. Therefore, the parties agree that, in the event this Agreement is not executed I by the County within sixty (60) days of execution by Orange Tree, delivery of the Agreement by Orange Tree shall be considered rescinded, or the Agreement shall be considered voidable on the part of the Orange Tree. ! Remainder of the page intentionally . left blank. 6 L ,u....'''_m....'..... ..~~"- Agenda Item No. 1687 I September 29, 2009 ! Page 11 of 11 IN WITNESS WHEREOF, the parties hereto have executed the foregoing Agreement on this the _ day of September, 2009. (SEAL) Board of County Commissioners of Collier County, Florida Attest: By: By: Dwight E. Brock, Clerk Donna Fiala, Chairman Approved as to Legal Form and Content Office ~ County Attorney - By: H- f? JLA4l- Scott R. Teach Deputy County Attorney I I I Attest: By: 7:Q~ ~~ ' By: PnntName: . Luw;t"t-- - 7