Resolution 2013-025 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
RESOLUTION 2 01 3-2 5 Form No.
UTILITY AGREEMENT Utilities
Rev 00/00
Financial Project ID: 415621-2 Federal Project ID: N/A
County/Section No: Collier State Road No. 90
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
"FDOT", proposes to construct or reconstruct a transportation facility identified above, hereinafter referred to as the
"Project"; and
WHEREAS, in order for the FDOT to proceed with the Project, it is necessary for Collier County Water-Sewer
District, hereinafter referred to as the"UAO", to execute and deliver to the FDOT the agreement identified as Utility Work
by Highway Contractor Agreement(At Utility Expense),hereinafter referred to as the"Agreement";
NOW, THEREFORE, BE IT RESOLVED BY THE UAO:
That(Name) Georgia A. Hiller, Esq., Chairwoman of the Collier County Board of County Commissioners and ex-
officio the governing board of the Collier County Water-Sewer District be hereby authorized and directed to execute and
deliver the Agreement to the FDOT.
A certified copy of this Resolution is to be forwarded to the FDOT along with the executed Agreement.
ON MOTION of Commissioner Coyle, seconded by Commissioner Fiala , the above resolution was introduced
and passed by the UAO on the 22 day of January, year of 2013.
ATTEST: . '•. ".6% BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY,
• ' HT E. BR.CIc, CLERK 4 FLORIDA, AS THE GOV:RNING BODY OF COLLIER COUNTY AND
A f EX-OFFICIO THE GOV.-NING BOARD OF THECOLLIER COUNTY
By: / I e : WATER-S ER DISTRI T
*`lift h toDeaiTY 3
ttO�t A .fit,.. ,:y By: • ,
Geo 17.' it er, Esq., CHAIRWOMAN
ov I for form d le I Sufficiency:
Scott Teach
Deputy County Attorney
MEMORANDUM OF AGREEMENT
THIS AGREEMENT, made and entered into this , day of
201_, by and between the State of Florida, Department of Transportation, hereinafter
referred to as "FDOT" and the State of Florida, Department of Financial Services,
Division of Treasury, hereinafter referred to as "TREASURY" and ( Collier County
Water-Sewer District ), hereinafter referred to as the "PARTICIPANT".
WITNESSETH
WHEREAS, "FDOT" is currently constructing the following project:
Main Financial Project No.: 415621-2-52-01
County: Collier
hereinafter referred to as the "PROJECT".
WHEREAS, FDOT and the PARTICIPANT entered into a Locally Funded
Agreement dated January 22, 2013, wherein FDOT agreed to perform certain work on
behalf of the PARTICIPANT in conjunction with the PROJECT.
WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in
the best interest of the FDOT and the PARTICIPANT to establish an interest bearing
escrow account to provide funds for the work performed on the PROJECT on behalf of
the PARTICIPANT by the FDOT.
NOW THEREFORE, in consideration of the premises and the covenants
contained herein, the parties agree to the following:
1. An initial deposit in the amount of Four Million Five Hundred and Ten
Thousand Three Hundred and Thirty Three Dollars ($4,510,333.00) will be made by the
PARTICIPANT into an interest bearing escrow account established by the FDOT for the
purposes of the PROJECT. Said escrow account will be opened with the TREASURY
on behalf of the FDOT upon receipt of this Memorandum of Agreement. Such account
will be an asset of the FDOT.
2. Other deposits may be made by the PARTICIPANT as necessary to cover
cost increases or the cost of additional work prior to the execution of any Supplemental
Agreements or Amendments.
350-020-300-m
Page 2 of 3
3. Payment will be made as follows (check appropriate payment method):
0 Wire transfer
ACH deposit
(� Check
A wire transfer or ACH deposit is the preferred method of payment and should be used
whenever possible. Following is the wiring and ACH deposit instructions:
For wire transfers: Bank of America
Account # 001009068974
ABA # 026009593
Chief Financial Officer of Florida
Re: DOT— K 11-78, Financial Project#
For ACH deposits: Bank of America
Account # 001009068974
ABA # 063100277
Chief Financial Officer of Florida
Re: DOT— K 11-78, Financial Project#
If a check is the method of payment, the check shall be made payable to the
Department of Financial Services, Revenue Processing and mailed to the FDOT, OOC-
GAO for appropriate processing at the following address:
Florida Department of Transportation
00C-GAO, LFA Section
605 Suwannee Street, MS 42B
Tallahassee, Florida 32399
A copy of this Agreement should accompany any deposits. When the check is
mailed to Tallahassee, the District Office should instruct the PARTICIPANT to
mail the District Office a copy of the check.
4. The FDOT's Comptroller or designee shall be the sole signatories on the
escrow account with the TREASURY and shall have sole authority to authorize
withdrawals from said account.
5. Unless instructed otherwise by the parties hereto, all interest accumulated
in the escrow account shall remain in the account for the purposes of the PROJECT as
defined in the LFA.
6. The TREASURY agrees to provide written confirmation of receipt of funds
to the FDOT.
7. The TREASURY further agrees to provide periodic reports to the FDOT.
350-020-300-m
Page 3 of 3
STATE OF FLORIDA STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION DEPARTMENT OF FINANCIAL
COMPTROLLER SERVICE 41 ISI')N • TREASURY
PARTIC ' i ' I NATURE
Georgia A. Hiller, Esq., Chairwoman
PARTICIPANT NAME & TITLE
3299 Tamiami Trail East, Suite 303
PARTICIPANT ADDRESS
Naples, FL 34112-5746
59-6000558
FEDERAL EMPLOYER I.D. NUMBER
ATTEST APPro to tor.
DWIGHT E. BROCK, CLERK
BY: "AA/tot �..
Attest St DJ Deputy County Attorney
#1.441111 Ng,
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-Z"UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC 1
(AT UTILITY EXPENSE)
Financial Project ID: 415621-2-52-01 Federal Project ID:
County: Collier State Road No.: 90
District Document No:
Utility Agency/Owner(UAO): Collier County Water-Sewer District
THIS AGREEMENT, entered into this day of ,year of , by and between the STATE
OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the"FDOT", and Collier County
Water-Sewer District , hereinafter referred to as the"UAO";
WITNESSETH:
WHEREAS, the FDOT, is constructing, reconstructing, or otherwise changing a portion of a public road or
publicly owned rail corridor, said project being identified as US 41, State Road No.: 90, hereinafter referred to as the
"Project"; and
WHEREAS,the UAO owns or desires to install certain utility facilities which are located within the limits of the
Project hereinafter referred to as the"Facilities"(said term shall be deemed to include utility facilities as the same may
be relocated, adjusted, installed, or placed out of service pursuant to this Agreement); and
WHEREAS,the Project requires the location(vertically and/or horizontally), protection, relocation, installation,
adjustment or removal of the Facilities, or some combination thereof, hereinafter referred to as"Utility Work"; and
WHEREAS,the FDOT and the UAO desire to enter into a joint agreement pursuant to Section 337.403(1)(b),
Florida Statutes for the Utility Work to be accomplished by the FDOT's contractor as part of the construction of the
Project; and
WHEREAS,the UAO, pursuant to the terms and conditions hereof,will bear certain costs associated with the
Utility Work;
NOW,THEREFORE, in consideration of the premises and the mutual covenants contained herein,the FDOT
and the UAO hereby agree as follows:
1. Design of Utility Work
a. UAO shall prepare, at UAO's sole cost and expense, a final engineering design, plans, technical
special provisions, a cost estimate, and a contingency Utility Work Schedule (said contingency
schedule to be used in the case of a bid rejection)for the Utility Work(hereinafter referred to as the
"Plans Package") on or before Nov 14th, year of 2012.
b. The Plans Package shall be in the same format as the FDOT's contract documents for the Project
and shall be suitable for reproduction.
c. Unless otherwise specifically directed in writing,the Plans Package shall include any and all activities
and work effort required to perform the Utility Work, including but not limited to, all clearing and
grubbing, survey work and shall include a traffic control plan.
d. The Plans Package shall be prepared in compliance with the FDOT's Utility Accommodation Manual
and the FDOT's Plans Preparation Manual in effect at the time the Plans Package is prepared, and
the FDOT's contract documents for the Project. If the FDOT's Plans Preparation Manual has been
updated and conflicts with the Utility Accommodation Manual,the Utility Accommodation Manual shall
apply where such conflicts exist.
e. The technical special provisions which are a part of the Plans Package shall be prepared in
accordance with the FDOT's guidelines on preparation of technical special provisions and shall not
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Rio-0TIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-05/12
(AT UTILITY EXPENSE)
duplicate or change the general contracting provisions of the FDOT's Standard Specifications for
Road and Bridge Construction and any Supplemental Specifications, Special Provisions, or
Developmental Specifications of the FDOT for the Project.
f. UAO shall provide a copy of the proposed Plans Package to the FDOT,and to such other right of way
users as designated by the FDOT,for review at the following stages: Phase II. Prior to submission of
the proposed Plans Package for review at these stages, the UAO shall send the FDOT a work
progress schedule explaining how the UAO will meet the FDOT's production schedule. The work
progress schedule shall include the review stages,as well as other milestones necessary to complete
the Plans Package within the time specified in Subparagraph a. above.
g. In the event that the FDOT finds any deficiencies in the Plans Package during the reviews performed
pursuant to Subparagraph f. above,the FDOT will notify the UAO in writing of the deficiencies and the
UAO will correct the deficiencies and return corrected documents within the time stated in the notice.
The FDOT's review and approval of the documents shall not relieve the UAO from responsibility for
subsequently discovered errors or omissions.
h. The FDOT shall furnish the UAO such information from the FDOT's files as requested by the UAO;
however, the UAO shall at all times be and remain solely responsible for proper preparation of the
Plans Package and for verifying all information necessary to properly prepare the Plans Package,
including survey information as to the location (both vertical and horizontal) of the Facilities. The
providing of information by the FDOT shall not relieve the UAO of this obligation nor transfer any of
that responsibility to the FDOT.
The Facilities and the Utility Work will include all utility facilities of the UAO which are located within
the limits of the Project, except as generally summarized as follows: NA. These exceptions shall be
handled by separate arrangement.
j. If any facilities of the UAO located within the project limits are discovered after work on the project
commences to be qualified for relocation at the FDOT's expense, but not previously identified as
such, the UAO shall file a claim with the FDOT for recovery of the cost of relocation thereof. The
filing of the claim shall not necessarily entitle the UAO to payment,and resolution of the claim shall be
based on a determination of fault for the error. The discovery of facilities not previously identified as
being qualified for relocation at the FDOT's expense shall not invalidate this Agreement.
k. The UAO shall fully cooperate with all other right of way users in the preparation of the Plans
Package. Any conflicts that cannot be resolved through cooperation shall be resolved in the manner
determined by the FDOT.
Upon completion of the Utility Work,the Facilities shall be deemed to be located on the public road or
publicly owned rail corridor under and pursuant to the Utility Permit: Pending
(Note: It is the intent of this line to allow either attachment of or separate reference to the permit).
2. Performance of Utility Work
a. The FDOT shall incorporate the Plans Package into its contract for construction of the Project.
b. The FDOT shall procure a contract for construction of the Project in accordance with the FDOT's
requirements.
c. If the portion of the bid of the contractor selected by the FDOT which is for performance of the Utility
Work exceeds the FDOT's official estimate for the Utility Work by more than ten percent(10%)and
the FDOT does not elect to participate in the cost of the Utility Work pursuant to Section
337.403(1)(b), Florida Statutes, the UAO may elect to have the Utility Work removed from the
FDOT's contract by notifying the FDOT in writing within 10 days from the date that the UAO is notified
of the bid amount. Unless this election is made, the Utility Work shall be performed as part of the
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-2`
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-05112
(AT UTILITY EXPENSE)
Project by the FDOT's contractor.
d. If the UAO elects to remove the Utility Work from the FDOT's contract in accordance with
Subparagraph 2. c., the UAO shall perform the Utility Work separately pursuant to the terms and
conditions of the FDOT's standard relocation agreement, the terms and conditions of which are
incorporated herein for that purpose by this reference, and in accordance with the contingency
relocation schedule which is a part of the Plans Package. The UAO shall proceed immediately with
the Utility Work so as to cause no delay to the FDOT or the FDOT's contractor in constructing the
Project.
e. The UAO shall perform all engineering inspection,testing, and monitoring of the Utility Work to insure
that it is properly performed in accordance with the Plans Package, except for the following activities:
NA and will furnish the FDOT with daily diary records showing approved quantities and amounts for
weekly, monthly, and final estimates in accordance with the format required by FDOT procedures.
f. Except for the inspection, testing, monitoring, and reporting to be performed by the UAO in
accordance with Subparagraph 2. e., the FDOT will perform all contract administration for its
construction contract.
g. The UAO shall fully cooperate with the FDOT and the FDOT's contractor in all matters relating to the
performance of the Utility Work.
h. The FDOT's engineer has full authority over the Project and the UAO shall be responsible for
coordinating and cooperating with the FDOT's engineer. In so doing, the UAO shall make such
adjustments and changes in the Plans Package as the FDOT's engineer shall determine are
necessary for the prosecution of the Project.
The UAO shall not make any changes to the Plans Package after the date on which the FDOT's
contract documents are mailed for advertisement of the Project unless those changes fall within the
categories of changes which are allowed by supplemental agreement to the FDOT's contract
pursuant to Section 337.11, Florida Statutes. All changes, regardless of the nature of the change or
the timing of the change, shall be subject to the prior approval of the FDOT.
3. Cost of Utility Work
a. The UAO shall be responsible for all costs of the Utility Work and all costs associated with any
adjustments or changes to the Utility Work determined by the FDOT's engineer to be necessary,
including, but not limited to the cost of changing the Plans Package and the increase in the cost of
performing the Utility Work, unless the adjustments or changes are necessitated by an error or
omission of the FDOT. The UAO shall not be responsible for the cost of delays caused by such
adjustments or changes unless they are attributable to the UAO pursuant to Subparagraph 4.a.
b. The initial estimate of the cost of the Utility Work is $4,027,083.00. At such time as the FDOT
prepares its official estimate,the FDOT 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 FDOT to the cost of the Utility Work, or to elect to have the
Utility Work removed from the FDOT's contract and performed separately pursuant to the terms and
conditions set forth in Subparagraph 2. d. hereof.
c. At least Fourteen (14)calendar days prior to the date on which the FDOT advertises the Project for
bids, the UAO will pay to the FDOT an amount equal to the FDOT's official estimate; plus 2% for
mobilization of equipment for the Utility Work, additional maintenance of traffic costs for the Utility
Work, administrative costs of field work, tabulation of quantities, Final Estimate processing and
Project accounting (said amounts are to be hereinafter collectively referred to as the Allowances);
plus 10% of the official estimate for a contingency fund to be used as hereinafter provided for
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-2:
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC 1 05/12
(AT UTILITY EXPENSE)
changes to the Utility Work during the construction of the Project(the Contingency Fund).
d. Payment of the funds pursuant to this paragraph will be made (choose one):
❑ directly to the FDOT for deposit into the State Transportation Trust Fund.
® as provided in the attached Memorandum of Agreement between UAO, FDOT and the
State of Florida, Department of Financial Services, Division of Treasury. Deposits of less
than $100,000.00 must be pre-approved by the Department of Financial Services and
FDOT Comptroller's Office prior to execution of this agreement.
e. If the portion of the contractor's bid selected by the FDOT for performance of the Utility Work exceeds
the amount of the deposit made pursuant to Subparagraph c. above, then subject to and in
accordance with the limitations and conditions established by Subparagraph 2. c. hereof regarding
FDOT participation in the cost of the Utility Work and the UAO's election to remove the Utility Work
from the Project,the UAO shall,within fourteen(14)calendar days from notification from the FDOT or
prior to posting of the accepted bid, whichever is earlier, pay an additional amount to the FDOT to
bring the total amount paid to the total obligation of the UAO for the cost of the Utility Work, plus
Allowances and 10% Contingency Fund. The FDOT will notify the UAO as soon as it becomes
apparent the accepted bid amount plus allowances and contingency is in excess of the advance
deposit amount; however,failure of the FDOT to so notify the UAO shall not relieve the UAO from its
obligation to pay for its full share of project costs on final accounting as provided herein below. In the
event that the UAO is obligated under this Subparagraph 3.e. to pay an additional amount and the
additional amount that the UAO is obligated to pay does not exceed the Contingency Fund already on
deposit, the UAO shall have sixty (60) calendar days from notification from the FDOT to pay the
additional amount, regardless of when the accepted bid is posted.
f. If the accepted bid amount plus allowances and contingency is less than the advance deposit
amount, the FDOT will refund the amount that the advance deposit exceeds the bid amount, plus
allowances and contingency if such refund is requested by the UAO in writing and approved by the
Comptroller of the FDOT or his designee.
g. Should contract modifications occur that increase the UAO's share of total project costs,the UAO will
be notified by the FDOT accordingly. The UAO agrees to provide, in advance of the additional work
being performed, adequate funds to ensure that cash on deposit with the FDOT is sufficient to fully
fund its share of the project costs. The FDOT shall notify the UAO as soon as it becomes apparent
the actual costs will overrun the award amount; however, failure of the FDOT to so notify the UAO
shall not relieve the UAO from its obligation to pay for its full share of project costs on final accounting
as provided herein below.
h. The FDOT may use the funds paid by the UAO for payment of the cost of the Utility Work. The
Contingency Fund may be used for increases in the cost of the Utility Work which occur because of
quantity overruns or because of adjustments or changes in the Utility Work made pursuant to
Subparagraph 2. h. Prior to using any of the Contingency Fund, the FDOT will obtain the written
concurrence of the person delegated that responsibility by written notice from the UAO. The
delegatee shall respond immediately to all requests for written concurrence. If the delegatee refuses
to provide written concurrence promptly and the FDOT determines that the work is necessary, the
FDOT may proceed to perform the work and recover the cost thereof pursuant to the provisions of
Section 337.403(3), Florida Statutes. In the event that the Contingency Fund is depleted, the UAO
shall, within fourteen (14) calendar days from notification from the FDOT, pay to the FDOT an
additional 10% of the total obligation of the UAO for the cost of the Utility Work established under
Subparagraph 3. e. for future use as the Contingency Fund.
Upon final payment to the Contractor,the FDOT intends to have its final and complete accounting of
all costs incurred in connection with the work performed hereunder within three hundred sixty(360)
days. All project cost records and accounts shall be subject to audit by a representative of the UAO
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010"2`
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC IL0�E2
(AT UTILITY EXPENSE)
for a period of three(3)years after final close out of the Project. The UAO will be notified of the final
cost. Both parties agree that in the event the final accounting of total project costs pursuant to the
terms of this agreement is less than the total deposits to date, a refund of the excess will be made by
the FDOT to the UAO in accordance with Section 215.422, Florida Statutes. In the event said final
accounting of total project costs is greater than the total deposits to date, the UAO will pay the
additional amount within forty(40)calendar days from the date of the invoice. The UAO agrees to
pay interest at a rate as established pursuant to Section 55.03, Florida Statutes, on any invoice not
paid within the time specified in the preceding sentence until the invoice is paid.
4. Claims Against UAO
a. The UAO shall be responsible for all costs incurred as a result of any delay to the FDOT or its
contractors caused by errors or omissions in the Plans Package(including inaccurate location of the
Facilities)or by failure of the UAO to properly perform its obligations under this Agreement in a timely
manner.
b. In the event the FDOT's contractor provides a notice of intent to make a claim against the FDOT
relating to the Utility Work, the FDOT will notify the UAO of the notice of intent and the UAO will
thereafter keep and maintain daily field reports and all other records relating to the intended claim.
c. In the event the FDOT's contractor makes any claim against the FDOT relating to the Utility Work,
the FDOT will notify the UAO of the claim and the UAO will cooperate with the FDOT in analyzing and
resolving the claim within a reasonable time. Any resolution of any portion of the claim directly
between the UAO and the FDOT's contractor shall be in writing, shall be subject to written FDOT
concurrence and shall specify the extent to which it resolves the claim against the FDOT.
d. The FDOT may withhold payment of surplus funds to the UAO until final resolution (including any
actual payment required)of all claims relating to the Utility Work. The right to withhold shall be limited
to actual claim payments made by the FDOT to the FDOT's contractor.
5. Out of Service Facilities
No Facilities shall be placed out of service unless specifically identified as such in the Plans. The following
terms and conditions shall apply to Facilities placed Out-of-Service:
a. The UAO acknowledges its present and continuing ownership of and responsibility for out of service
Facilities.
b. The FDOT agrees to allow the UAO to leave the Facilities within the right of way subject to the
continuing satisfactory performance of the conditions of this Agreement by the UAO. In the event of a
breach of this Agreement by the UAO, the Facilities shall be removed upon demand from the FDOT
in accordance with the provisions of Subparagraph e. below.
c. The UAO shall take such steps to secure the Facilities and otherwise make the Facilities safe in
accordance with any and all applicable local,state or federal laws and regulations and in accordance
with the legal duty of the UAO to use due care in its dealings with others. The UAO shall be solely
responsible for gathering all information necessary to meet these obligations.
d. The UAO shall keep and preserve all records relating to the Facilities, including, but not limited to,
records of the location, nature of, and steps taken to safely secure the Facilities and shall promptly
respond to information requests of the FDOT or other permittees using or seeking use of the right of
way.
e. The UAO shall remove the Facilities at the request of the FDOT in the event that the FDOT
determines that removal is necessary for FDOT use of the right of way or in the event that the FDOT
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Rio-0
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OOUTILITIES
01
(AT UTILITY EXPENSE)
determines that use of the right of way is needed for other active utilities that cannot be otherwise
accommodated in the right of way. Removal shall be at the sole cost and expense of the UAO and
without any right of the UAO to object or make any claim of any nature whatsoever with regard
thereto. Removal shall be completed within the time specified in the FDOT's notice to remove. In the
event that the UAO fails to perform the removal properly within the specified time, the FDOT 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 FDOT
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 FDOT for the FDOT's own negligence; however, it is the intent that
all other costs and expenses of any nature be the responsibility of the UAO.
6. Default
a. In the event that the UAO breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in this Agreement,the FDOT may exercise one or more of
the following options, provided that at no time shall the FDOT be entitled to receive double recovery of
damages:
(1) Terminate this Agreement if the breach is material and has not been cured within sixty(60)
days from written notice thereof from FDOT.
(2) Pursue a claim for damages suffered by the FDOT.
(3) If the Utility Work is reimbursable under this Agreement,withhold reimbursement payments
until the breach is cured. The right to withhold shall be limited to actual claim payments
made by FDOT to third parties.
(4) If the Utility Work is reimbursable under this Agreement,offset any damages suffered by the
FDOT or the public against payments due under this Agreement for the same Project. The
right to offset shall be limited to actual claim payments made by FDOT to third parties.
(5) Suspend the issuance of further permits to the UAO for the placement of Facilities on FDOT
property if the breach is material and has not been cured within sixty(60)days from written
notice thereof from FDOT.
(6) Pursue any other remedies legally available.
(7) Perform any work with its own forces or through contractors and seek repayment for the cost
thereof under Section 337.403(3), Florida Statutes.
b. In the event that the FDOT breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in the Agreement,the UAO may exercise one or more of
the following options:
(1) Terminate this Agreement if the breach is material and has not been cured within sixty(60)
days from written notice thereof from the UAO.
(2) If the breach is a failure to pay an invoice for Utility Work which is reimbursable under this
Agreement, pursue any statutory remedies that the UAO may have for failure to pay invoices.
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-2:
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-05/12
(AT UTILITY EXPENSE)
(3) Pursue any other remedies legally available.
c. Termination of this Agreement shall not relieve either party from any obligations it has pursuant to other
agreements between the parties nor from any statutory obligations that either party may have with regard
to the subject matter hereof.
7. Force Majeure
Neither the UAO nor the FDOT shall be liable to the other for any failure to perform under this Agreement to
the extent such performance is prevented by an act of God, war, riots, natural catastrophe, or other event
beyond the control of the non-performing party and which could not have been avoided or overcome by the
exercise of due diligence; provided that the party claiming the excuse from performance has (a) promptly
notified the other party of the occurrence and its estimate duration, (b) promptly remedied or mitigated the
effect of the occurrence to the extent possible, and (c) resumed performance as soon as possible.
8. Indemnification
FOR GOVERNMENT-OWNED UTILITIES,
To the extent provided by law, the UAO shall indemnify, defend, and hold harmless the FDOT and all of its
officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any
acts, action, error, neglect, or omission by the UAO, its agents, employees, or contractors during the
performance of the Agreement, whether direct or indirect, and whether to any person or property to which
FDOT or said parties may be subject, except that neither the UAO, its agents, employees, or contractors will
be liable under this section for damages arising out of the injury or damage to persons or property directly
caused by or resulting from the negligence of the FDOT or any of its officers,agents,or employees during the
performance of this Agreement.
When the FDOT receives a notice of claim for damages that may have been caused by the UAO in the
performance of services required under this Agreement, the FDOT will immediately forward the claim to the
UAO. The UAO and the FDOT will evaluate the claim and report their findings to each other within fourteen
(14)working days and will jointly discuss options in defending the claim. After reviewing the claim,the FDOT
will determine whether to require the participation of the UAO in the defense of the claim or to require the UAO
to defend the FDOT in such claim as described in this section. The FDOT's failure to notify the UAO of a
claim shall not release the UAO from any of the requirements of this section. The FDOT and the UAO will pay
their own costs for the evaluation, settlement negotiations, and trial, if any. However, if only one party
participates in the defense of the claim at trial, that party is responsible for all costs.
FOR NON-GOVERNMENT-OWNED UTILITIES,
The UAO shall indemnify,defend, and hold harmless the FDOT and all of its officers, agents,and employees
from any claim, loss, damage, cost, charge, or expense arising out of any acts, action, error, neglect, or
omission by the UAO, its agents, employees, or contractors during the performance of the Agreement,
whether direct or indirect, and whether to any person or property to which FDOT or said parties may be
subject, except that neither the UAO, its agents,employees,or contractors will be liable under this section for
damages arising out of the injury or damage to persons or property directly caused by or resulting from the
negligence of the FDOT or any of its officers,agents,or employees during the performance of this Agreement.
The UAO's obligation to indemnify, defend, and pay for the defense or at the FDOT's option, to participate
and associate with the FDOT in the defense and trial of any damage claim or suit and any related settlement
negotiations, shall arise within fourteen (14) days of receipt by the UAO of the FDOT's notice of claim for
indemnification to the UAO. The notice of claim for indemnification shall be served by certified mail. The
UAO's obligation to defend and indemnify within fourteen (14) days of such notice shall not be excused
because of the UAO's inability to evaluate liability or because the UAO evaluates liability and determines the
Page 7 of 9
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-01x2:
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC'L 51112
(AT UTILITY EXPENSE)
UAO is not liable or determines the FDOT is solely negligent. Only a final adjudication of judgment finding the
FDOT 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 FDOT. The FDOT's delay in notifying the UAO
of a claim shall not release UAO of the above duty to defend.
9. Miscellaneous
a. Time is of essence in the performance of all obligations under this Agreement.
b. The Facilities shall at all times remain the property of and be properly protected and maintained by
the UAO in accordance with the current Utility Accommodation Manual in effect at the time the Plans
Package is prepared and the current utility permit for the Facilities; provided, however, that the UAO
shall not be obligated to protect or maintain any of the Facilities to the extent the FDOT's contractor
has that obligation as part of the Utility Work pursuant to the FDOT's specifications.
c. The FDOT may unilaterally cancel this Agreement for refusal by the UAO to allow public access to all
documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida
Statutes, and made or received by the UAO in conjunction with this Agreement.
d. This Agreement constitutes the complete and final expression of the parties with respect to the
subject matter hereof and supersedes all prior agreements, understandings, or negotiations with
respect thereto,except that the parties understand and agree that the FDOT has manuals and written
policies and procedures which may be applicable at the time of the Project and the relocation of the
Facilities.
e. This Agreement shall be governed by the laws of the State of Florida. Any provision hereof found to
be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining
portions hereof.
f. All notices required pursuant to the terms hereof may be sent by first class United States Mail,
facsimile transmission, hand delivery, or express mail and shall be deemed to have been received by
the end of five business days from the proper sending thereof unless proof of prior actual receipt is
provided. The UAO shall have a continuing obligation to notify each District of the FDOT of the
appropriate persons for notices to be sent pursuant to this Agreement. Unless otherwise notified in
writing, notices shall be sent to the following addresses:
If to the UAO:
Nathan Beals
3339 East Tamiami Trail, Suite 303
Naples, Florida 34112
If to the FDOT:
John Faison
801 North Broadway (MS 1-11)
Bartow, FL 33831
10. Certification
This document is a printout of an FDOT form maintained in an electronic format and all revisions thereto by
the UAO in the form of additions, deletions,or substitutions are reflected only in an Appendix entitled Changes
To Form Document and no change is made in the text of the document itself. Hand notations on affected
portions of this document may refer to changes reflected in the above-named Appendix but are for reference
purposes only and do not change the terms of the document. By signing this document, the UAO hereby
represents that no change has been made to the text of this document except through the terms of the
appendix entitled Changes to Form Document.
Page 8 of 9
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-2:
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-0512
(AT UTILITY EXPENSE)
You MUST signify by selecting or checking which of the following applies:
❑ No changes have been made to this Form Document and no Appendix entitled "Changes to Form
Document" is attached.
® No changes have been made to this Form Document, but changes are included on the attached Appendix
entitled"Changes to Form Document."
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written.
UTILITY: Collier County Water-Sewer District
BY:JSignature) DATE: 01/22/13
(Typed Name: orgia A. Hiller, Esq.)
(Typed Title: Chairwoman)
Recommend Approval by the District Utility Office
BY: (Signature) DATE:
FDOT Legal review
BY: (Signature) DATE:
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
BY: (Signature) DATE:
(Typed Name: )
(Typed Title: )
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY: DATE:
(Typed Name: )
(Typed Title: )
{, A A dk{sm►
ATTEST A � �v as t, '
DWIGHT E. FROCK, CLERK
BY: 111.0 ' 'Atame' ' .age 9 of 9 Deputy County Attorney
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