Agenda 09/24/2013 Item #16C3 9/24/2013 16.C.3.
EXECUTIVE SUMMARY
Recommendation to a) accept the utility relocation bid amount of $4,655,380 from the Florida
Department of Transportation; b) direct staff to send a letter to the Florida Department of
Transportation stating that the additional money is on deposit and available to cover the selected
low bid; c) provide $703,692.60 into a Florida Department of Transportation interest bearing
escrow account; and, d) authorize the necessary budget amendment in the amount of$408,114 for
the Florida Department of Transportation project to widen U.S. 41 (Tamiami Trail East) between
County Road 951 (Collier Boulevard) and Greenway Road; and e) approve a Resolution accepting
the utility relocation bid amount and going forward with the Project.
OBJECTIVE: Continue with Collier County Water-Sewer District (CCWSD) participation in a
joint project with the Florida Department of Transportation (FDOT) to widen U.S. 41 (Tamiami
Trail East)between County Road 951 (Collier Boulevard) and Greenway Road.
CONSIDERATIONS: On June 24, 2009, as Agenda Item 10G, the Board of County
Commissioners (Board) adopted the 2008 Water and Wastewater Master Plan Updates that
identified the requirement for relocating utility infrastructure in coordination with FDOT. The
proposed scope of work is consistent with the 2008 Water Master Plan Update, Project 70045,
"FDOT Joint Project Agreements — Water," Section 8, Table 8-2, page 2 of 5, line 53; the 2008
Wastewater Master Plan Update, Project 73045, "FDOT Joint Project Agreements — Sewer,"
Section 8, Table 8-2, page 2 of 5, line 73; the 2010 Potable Water CIP (dated October 5, 2010)
Update, page 3 of 4, line 87, as identified in the 2011 User Fee Rate Study; and, the 2010
Wastewater CIP (dated October 5, 2010) Update, page 2 of 4, line 50, as identified in the 2011
User Fee Rate Study.
On January 22, 2013, as Agenda Item 11D, the Board a) approved a Utility Work by Highway
Contractor Agreement (UWHCA) with the FDOT (reference Attachment 1); b) approved a
FDOT standard form resolution authorizing the Board Chairwoman to execute the agreement
(Attachment 2); and, c) approved a Memorandum of Agreement with the FDOT and the Florida
Department of Financial Services, Division of Treasury, to establish an interest bearing escrow
account(Attachment 3). Further, the Board directed the Clerk of Courts and the County Attorney
to request an Attorney General's opinion and attend an immediate emergency meeting with the
Chief Financial Officer of the State of Florida to resolve any issues regarding prepayment.
On January 31, 2013, the County Attorney's office received an opinion from the Office of the
Chief Financial Officer(CFO) of the State of Florida providing, in part: "...the County needed no
prior approval from the CFO to fund the relocation expenses in question" (reference Attachment
4).
On February 11, 2013, Arthur J. England, Jr., a former Chief Justice of the Supreme Court of
Florida, issued an opinion letter that stated, in part: "...it is my opinion that it is lawful for the
Clerk to make the advance payment of$4,512,333, which has been authorized by the Board of
County Commissioners and approved by FDOT and the Treasury (reference Attachment 5).
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The FDOT later confirmed that the project would be let following a design/build procurement
process instead of design/bid/build. On May 14, 2013, as Agenda Item 16C5, the Board
approved a resolution authorizing an Appendix, Amendment Number 1, to the UWHCA. The
appendix modified the UWHCA so that it was consistent with the design/build process. With
this change in procurement strategy, the awardee would have the ability to make significant
design modifications for both the roadway and utilities. This made the original engineer's cost
estimate for utility relocation irrelavent because the design would most likely undergo significant
change.
On August 12, 2013, prior to the FDOT's August 15, 2013, deadline the Clerk of Courts wire
transfered $4,510,333 into a State-held interest bearing escrow account, per the terms of the
MOA. The $4,510,333 amount was derived from the estimated construction cost ($4,027,083)
plus a 10 percent construction contingency ($402,708), and a 2 percent CEI contingency
($80,542) as required by the UWHCA.
On August 30, 2013, the FDOT opened bids for the project to widen U.S. 41 between County
Road 951 and Greenway Road. On September 10, 2013, staff was notified that the utility
relocation portion of the selected bid was $4,655,380; which was $628,297 (or approximately 16
percent) over the engineer's estimate. Through the design/build process, the configurations of
the roadway and utilities changed significantly. The terms of the UWHCA provide that when the
10 percent construction contingency paid into the State-held escrow account is not enough to
cover the utility relocation cost, the county may either pay the additional bid amount into the
escrow account, plus the associated allowances, or withdraw from the joint FDOT project and
relocate the utilities separately.
The original engineer's cost estimate for utility relocations dates back to December 2012. Since
that time the design has changed, and the utility relocation costs have increased. On two similar
roadway projects, the utility relocation costs came over 30 percent higher than estimate_d. Staff
believes that similar conditions exist as to this project. Overall, the selected low bid was
$37,887,000 as compared to the estimate of$54,000,000.
If the Board wishes to continue with the FDOT joint project,then an additional payment of
$703,692.60 to the State-held escrow account is required.
Relocation bid amount $4,655,380.00
10 percent Construction Allowance for Additional Cost $465,538.00
2 percent CEI Allowance for Additional Cost +$93,107.60
Total Bid Escrow Payment Required $5,214,025.60
Bid Escrow Payment Required $5,214,025.60
August 12, 2013, Escrow Payment —$4,510,333.00
Total Additional Escrow Payment Required $703,692.60
The total additional escrow deposit required by the FDOT is $703,692.60, which includes all
allowances defined by the UWHCA. If the Board chooses not to proceed by forwarding the
additional deposit amount, then the county would withdraw from the agreements, and instead
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relocate the CCWSD utilities in advance as its own separate project. Staff estimates that
relocating the utilities separately would cost approximately $906,892 more, as shown in the
following table.
Joint FDOT Separate County
Project Relocate Project
Construction Cost $4,655,380 $4,655,380
FDOT Construction Contingency (10%) $465,538 $465,538
FDOT CEI Contingency(2%) $93,108 $0
County CEI Cost $100,000 $100,000
County Separate Mobilization, MOT,Project $0 $1,000,000
Management, and Coordination(estimated)
Total $5,314,026 $6,220,918
Staff recommends that the county continue with the UWHCA, Resolution, and MOA approved
by the Board on January 22, 2013, and that the additional escrow funds be provided. In addition
to being the lower cost option, continuing with the Joint FDOT Project results in less impact on
the neighborhoods and a safer environment due to less time under construction.
FISCAL IMPACT: The sources of funding are the Water User Fee Fund (412), and the
Wastewater User Fee Fund (414). A budget amendment in the amount of$408,144 is necessary
from Project 73050, Fund (414).
LEGAL CONSIDERATIONS: This item is approved as to form and legality, and requires
majority vote for Board approval.—SRT
GROWTH MANAGEMENT IMPACT: This project is consistent with and will further the Goals,
Objectives, and Policies of the Collier County Growth Management Plan.
RECOMMENDATION: That the Board of County Commissioners, Ex-officio the Governing
Board of the Collier County Water-Sewer District,
1. accept the utility relocation bid amount of $4,655,380 from the Florida Department of
Transportation and execute the attached Resolution;
2. direct staff to send a letter to the Florida Department of Transportation stating that the
additional money is on deposit and available to cover the selected low bid;
3. provide $703,692.60 into a Florida Department of Transportation interest bearing escrow
account; and,
4. approve the necessary budget amendment in the amount of$408,144.
Prepared By: Tom Chmelik,Public Utilities Planning and Project Management Department Director.
Attachments:
Attachment 1 —Utility Work by Highway Contractor Agreement, dated April 10, 2013
Attachment 2—Standard form Resolution, dated January 22, 2013
Attachment 3—Memorandum of Agreement,dated April 19, 2013
Attachment 4—Letter from the office of the Chief Financial Officer,dated January 31, 2013
Attachment 5—Letter from Arthur J. England, Esq., dated February 11, 2013
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Attachment 6—Proposed letter to FDOT accepting bid amount of$4,655,380
Attachment 7—Resolution Authorizing Acceptance of Utility Bid
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.C.16.C.3.
Item Summary: Recommendation to a) accept the utility relocation bid amount of
$4,655,380 from the Florida Department of Transportation; b) direct staff to send a letter to the
Florida Department of Transportation stating that the additional money is on deposit and
available to cover the selected low bid; c) provide $703,692.60 into a Florida Department of
Transportation interest bearing escrow account; and, d) authorize the necessary budget
amendment in the amount of$408,114 for the Florida Department of Transportation project to
widen U.S. 41 (Tamiami Trail East) between County Road 951 (Collier Boulevard) and Greenway
Road; and e) approve a Resolution accepting the utility relocation bid amount and going
forward with the Project.
Meeting Date: 9/24/2013
Prepared By
Name: ChmelikTom
Title:Director,Public Utilities Engineering
9/17/2013 12:04:59 PM
Submitted by
Title: Director, Public Utilities Engineering
Name: ChmelikTom
9/17/2013 12:05:00 PM
Approved By
Name: Joseph Bellone
Title: Manager-Utility Billing&Cust Serv.,Utilities F
Date: 9/18/2013 7:47:38 AM
Name: HapkeMargie
Title: Operations Analyst,Public Utilities
Date: 9/18/2013 8:14:11 AM
Name: JacobsSusan
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Title: Operations Analyst,Public Utilities
Date: 9/18/2013 8:28:11 AM
Name: YilmazGeorge
Title: Administrator,Public Utilities
Date: 9/18/2013 8:58:30 AM
Name: GreeneColleen
Title: Assistant County Attorney,County Attorney
Date: 9/18/2013 9:03:19 AM
Name: KlatzkowJeff
Title: County Attorney
Date: 9/18/2013 11:55:44 AM
Name: UsherSusan
Title: Management/Budget Analyst, Senior,Office of Manage
Date: 9/18/2013 2:54:33 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 9/18/2013 4:55:18 PM
Name: IsacksonMark
Title: Director-Corp Financial and Mgmt Svs,CMO
Date: 9/18/2013 5:03:07 PM
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION »aa
UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT occ-05112
(AT UTILITY EXPENSE)
1,Financial Project ID:415621-2-V-01 Federal Project ID: At.
County: Collier 6 State Road No.: 90
District Document No:
Utility Agency/Owner(UAO): Collier County Water-Sewer District
THIS AGREEMENT,entered into this /toll day of A,ar,'f ,year of 241x,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 710-010.2:
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT occ-0ShI2
(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 710-010-21-
unuries
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT occ-051,2
(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 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
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-0�E2
(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,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
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 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 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
delegates 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 770.07¢
UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-OSM2
(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 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 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 710-010-=
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT GGO I O�S1E2
(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.
Page 6 of 9
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710.010-z
urnrrEs
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT occ-05112
(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
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9/24/2013 16.0.3.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-2;
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT MC 0912
(AT UTILITY EXPENSE)
UAO is not liable or determines the FOOT 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 FOOT. The FDOT's delay in notifying the UAO
of a claim shall not release UAO of the above duty to defend.
9. Miscellaneous
a. Time is of essence in the performance of all obligations under this Agreement
b. The Facilities shall at all times remain the property of and be properly protected and maintained by
the UAO in accordance with the current Utility Accommodation Manual in effect at the time the Plans
Package is prepared and the current utility permit for the Facilities;provided, however,that the UAO
shall not be obligated to protect or maintain any of the Facilities to the extent the FDOT's contractor
has that obligation as part of the Utility Work pursuant to the FDOT's specifications.
c. The FDOT may unilaterally cancel this Agreement for refusal by the UAO to allow public access to all
documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida
Statutes, and made or received by the UAO in conjunction with this Agreement
d. This Agreement constitutes the complete and final expression of the parties with respect to the
subject matter hereof and supersedes all prior agreements, understandings, or negotiations with
respect thereto,except that the parties understand and agree that the FDOT has manuals and written
policies and procedures which may be applicable at the time of the Project and the relocation of the
Facilities.
e. This Agreement shall be governed by the laws of the State of Florida. Any provision hereof found to ,
be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining
portions hereof.
f. All notices required pursuant to the terms hereof may be sent by first class United States Mail,
facsimile transmission,hand delivery,or express mail and shall be deemed to have been received by
the end of five business days from the proper sending thereof unless proof of prior actual receipt is
provided. The UAO shall have a continuing obligation to notify each District of the FDOT of the
appropriate persons for notices to be sent pursuant to this Agreement. Unless otherwise notified in
writing,notices shall be sent to the following addresses:
If to the UAO:
Nathan Beals
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
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710.010.
UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT OGC-05112
(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 ter-Sewer District
(1‘1"/
BY:(Sig nature) DATE:0/122/13
(Typed Name: Georgia A. Hiller, Esq.)
(Typed Title: Chairwoman)
Recommend Approval by the District Utility Office Le/(44'
IMfir3
BY: (Signature) DATE:
FOOT Legal review
BY:,(Signature) J- ey/ ��J DATE: `f-r'v-t
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
r
BY: (Signature) DATE: 42.07
3
(Typed Name: )G ri- "
(Typed Title: ) Director of Transportation Deveinnment
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY: t ; DATE: NM
(Typed Name: )
(Typed Title: )
ATTEST
Waled ed to fo;` lege'sufficiency
EAVOGHT E. C ,CLERK
��
BY: r Attost I* to Zeros§ Pale 9 of 9 'N-41 Deputy Iowa) rutorn --
SI
Packet Page-1571-
9/24/2013 16.C.3.
APPENDIX
CHANGES TO FORM DOCUMENT
(Amendment Number 1)
The following changes are made to the Utility Work by Highway Contractor Agreement (AT UTILITY
EXPENSE) between the State of Florida Department of Transportation (FDOT)and Collier County Water-
Sewer District(UAO)dated Apr:I /et ',2013:
1. The fourth WHEREAS clause is changed to read: 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 and/or its design consultant as part of the
construction of the Project.
2. Paragraph 1.a. is changed to read: UAO shall prepare, at UAO's sole cost and expense, a final
engineering design, plans, technical special provisions and a cost estimate for the Utility Work
(hereinafter referred to as the"Plans Package")on or before May 13, 2013.
3. Paragraph 1.f.is deleted.
4. Paragraph 1.g. is designated as Paragraph 1.f.and changed to read as follows: In the event that
the FDOT Design/Build Firm finds any deficiencies when reviewing the Plans Package, it 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 Design/Build Firm review
and approval of the documents shall not relieve the UAO from responsibility for subsequently
discovered errors or omissions.
5. Paragraph l.h. is designated as Paragraph 1.g. and changed to add, after each reference to
"FDOT","Design/Build Firm".
6. Paragraphs 1.i. j. k. 1.are designated as Paragraphs 1.h. i.j.k.
7. Paragraph 2.a. is changed to read as follows:The FDOT Design/Build Firm shall incorporate the
Plans Package into its contract for construction of the Project.
8. Paragraph 2.i. is changed to read as follows: The UAO shall not make any changes to the Plans
Package after the date on which the FDOT's RFP documents are mailed. 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.
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9/24/2013 16.C.3.
9. Paragraph 3.c., lines 1 and 2 are changed as follows: At least Fourteen(14)calendar days prior
to the date on which the FDOT receives proposals,the UAO will pay to FDOT an amount equal
to the FDOT's official estimate: plus 2%for
10. Paragraph 4.a. is changed as follows: Delete the word "contractors", add the words
"Design/Build Firm".
11. Paragraph 4.b. is changed as follows: Delete the word "contractor", add the words
"Design/Build Firm
12. Paragraph 9.f. is changed as follows: Delete "John Faison" and substitute, "FDOT District
Utilities Office".
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
RESOLUTION �y13 - 25 Form No
UTILITY AGREEMENT UlAitias
Financial Project ID:415621-2 -$G-at 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
"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 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(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 FOOT.
A certified copy of this Resolution is to be forwarded to the FOOT 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: BOARD OF COUNTY COMMISSIONERS, -.COLLIER COUNTY,
DWIGHT E.SROCK, CLERK FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY AND
I i = h / EX-OFFICIO HE GOVERNING BOARD OF.:TH COLLIER COUNTY
By: AAA,. YAW k itsaili WATER-SE E DISTRICT
DEPUTY C,ER AV I
4441041 de q.
By I
Georgia Al ' e`r,` sq., CHAIRWOMAN
Ap ov-l for form arts! legal Sufficiency: .,✓
m
P i1 �
Scott Teach
Deputy County Attorney
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9/24/2013 16.C.3.
MEMORANDUM OF AGREEMENT
wl
THIS AGREEMENT, made and entered into this iv day of ,PSG- ,
201 3, 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.: 415621-2-56-01
County: Collier
hereinafter referred to as the "PROJECT".
WHEREAS, FDOT and the PARTICIPANT entered into a Locally Funded
Agreement dated April 10, 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 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 FOOT.
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 FDOT for the
purposes of the PROJECT. Said escrow account will be opened with the TREASURY
on behalf of FDOT upon receipt of this Memorandum of Agreement. Such account will
be an asset of 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.
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9/24/2013 16.C.3.
350-020-300-m oft
Page 2 of 3
3. Payment will be made as follows (check appropriate payment method):
L1 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.
;,rcCk9U...
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350-020-300-m
Page 3 of 3
I r
STAT OFFLORIDA ATE OFF ORID
DEPARTMENT OF TRANSPOR TION DEPAR ENT OF INANCIAL
COMPTROLLER SERVI ES, 1 IVISIoN OF TREASURY
PARTI i`r GNATURE
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
ErNIGHtt, BR4PC,Ki:CLEF"'i' A proied as to for & egfl sufficiency
BY A vi Litt
C C /11-4,-
A A.A.
"' e* to awl — Deputy County Attorney
siatiocar*
Packet Page-1577-
From OEPT.OF FINANCIAL SERVICES 18504133029 01/31/2013 14:35
9/24/2013 16.CC
.3.
ro q� :,.
CHIEF FINANCIAL OFFICER
JEFF ATWATER
STATE OF FLORIDA
DATE: t lak.)) ,,
Please deliver the following page(s)to:
NAi E _
% 110. qi I11Lit. S)
. 234 252 ,IC
Sender's Name:
850-413-3010 850-413-3029
Number of pages,including this page:
Comments or Special Instructions:
LEGAL SERVICES/GENERAL CONSTITUTIONAL ISSUES SECTION
200 EAST GAINES STREET•FLETCHER BUILDING,Room 464-A•TALLAHASSEE,FLORIDA 32399-4247
PHONE: 850.413.3010•FACSIMILE: 850.413.3029
Packet Page -1578-
1
From: DEPT OF FINANCIAL SERVICES 18504133029 01 /31 /2013 14.35
9/24/2013 16.C.3.
i4_
REPRESENTING
Jeff Atwater
CHIEF FINANCIAL OFFICER
STATE OF FLORIDA
January 31, 2013
Scott R.Teach,Esq.
Office of the County Attorney
Collier County
3299 East Tamiami Trail
Suite 800
Naples,FL 34112-5749
Re:. Request for Authorization of Advance Payment
Dear Mr. Teach:
Your letter to Chief Financial Officer Atwater dated January 24, 2013,has been referred
to me for response. Your letter is a request for"a waiver under State Bureau of Auditing Rule
691-40.120,to allow the County's Clerk of Courts,Dwight Brock,to make an advance payment
of funds." I am glad to inform you that Mr. Brock does not need any permission from CFO
Atwater in order to make an advance payment from Collier County funds. Because F.A.C. Rule
69I-40.120 applies only to agencies of the State of Florida and not to local governments, no
waiver of the rule in question is either necessary or possible under the circumstances outlined in
your letter.
Your letter reflects that the Collier County Board of County Commissioners, acting in its
capacity as the district board of the Collier County Water and Sewer District("the County"),
recently entered into a standard agreement with the Florida Department of Transportation under
Section 337.403(1)(b),Florida Statutes, for the relocation of district-owned utility infrastructure
affected by FDOT's widening of US 41 in Collier County. The relocation is to be carried out by
FDOT's construction contractor and funded by the County. To facilitate this funding, FDOT and
the County also entered into an agreement under which the sum of$4,510,333.00,representing
the County's lump sum payment for the relocation expenses, is to be held in an interest-bearing
escrow account in the State Treasury, with disbursements therefrom to be authorized only by the
Comptroller of FDOT or her designee.
Although the Division of Treasury is under the administrative supervision of the CFO in
his capacity as statutory head of the Department of Financial Services,the County needed no
prior approval from the CFO to fund the relocation expenses in question. The County, exercising
the authority granted it by Chapter 2003-353, Florida Statutes, agreed to pay FDOT in advance
for the relocation work because the performance of the work by FDOT's contractor would be
more economical for the taxpayers. The CFO applauds the County's good stewardship of public
money in making such a decision.
FLORIDA DEPARTMENT OF FINANCIAL SERVICES
RICHARD T.DONELAN • CHIEF COUNSEL
DIVISION OF LEGAL SERVICES • CONSTITUTIONAL ISSUES
200 EAST GAINES STREET• TALLAHASSEE,FLORIDA 32399-4247 TEL..850-4I3-3010 • FAX 850-413-3029
EMAIL • RICHARD.DONELAN@FLDFS.COM
AFFIRMATIVE ACTION • EQUAL OPPORTUNITY EMPLOYER
Packet Page-1579-
From:DEPT.OF FINANCIAL SERVICES 18504133029 01 /31/2013 14:38 ""'^^ ^ "^ ^^^
9/24/2013 16.C.3.
The County having made the legislative decision to appropriate County funds for advance
payment for the work in question,there can be no question that Mr. Brock, as "district clerk"for
the County as well as Clerk of Courts for the County, has express statutory authority to make an
advance payment to the escrow account in order to carry out the County's decision. See Section
28.235, Florida Statutes (2012). When the Florida Legislature makes an appropriation in the
General Appropriations Act that provides for advance payment to a vendor, the CFO does not
have discretion over whether to approve advance payment. Only in cases where no Iegislative
intent in favor of advance payments has been expressed is the question of CFO approval of
advance payments from the State Treasury involved. Only then do the provisions of F.A.C. Rule
69I-40.120 apply, and only in connection with vouchers for payment from state funds.
Chapter 2003-353, Laws of Florida, created the Collier County Water and Sewer District
as an independent special tax district whose governing board is the Collier County Board of
County Commissioners. Section 21(1)of the special act makes clear that, in administering the
district,the Board's exercise of the powers conferred by the act"shall not be subject to the
limitations or provisions of any other law or laws . . . except to the extent expressly provided
herein." Moreover, this section goes on to state that in the event of any conflict between this act
and any other applicable law, "the least restrictive in favor of the District's powers shall apply."
This plenary grant of authority to the district board—and its district clerk, Mr. Brock—appears to
trump an overbroad interpretation of Section 28.235,Florida Statutes, that would restrict the
Board's ability to spend district-generated funds in advance without the permission of the Chief
Financial Officer. This conclusion is further underscored by the plainly expressed legislative
intent found in Section 6(1)of the special act that the Board's determinations as to rates, fees,
and charges"not be subject to the supervision or regulation by any other commission,board,
bureau, agency, or other political subdivision or agency of the county or the state."
Your letter requested a prompt response from the CFO "in order to avoid the possibility
that the County will not be able to take advantage of the savings to be realized by participating
through FDOT's selected contractor." The CFO neither possesses nor asserts the right to control
the district board's discretion to spend County funds for the purposes of Chapter 2003-353, Laws
of Florida. It was never necessary for the County to seek prior approval by the CFO of its
apparently sound determination to engage the services of FDOT's contractor and to provide
advance payment to FDOT. Whether the County goes forward with this determination rests in
the sole discretion of the County.
Thank you for your attention to this letter. Please contact me if there are any questions.
Sincerely,
Richard T. Donelan, Jr.
cc: The Honorable Dwight E. Brock
3efferey A. Klatzkow, County Attorney
Leo E. Ochs, Jr., County Manager
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1825 Ponce de Leon Boulevard,#512
Coral Gables,Florida 33134
ARTHUR J. ENGLAND, JR. P.A. Telephone:305-967-8489
E-mail: Arthur @ArthurEnglandLaw.com
Arthur J.England,Jr.,Esq. Justice,Supreme Court of Florida
(1975-78,1980-81)
Of Counsel: (1978-80)
Justice,Supreme Court of Florida
(1978-80)
Elliot B.Kula,Esq. Board Certified in Appellate Law
Board Certified in Appellate Law Certified Civil Mediator
Daniel M.Samson,Esq.
February 11, 2013
Dwight E.Brock,
Clerk of the Circuit Court,
3315 Tamiami Trail East, Suite 102
Naples,Florida 34112
and
Scott.R.Teach,Esq.
Deputy County Attorney,
3299 East Tamiami Trail, Suite 800,
Naples,Florida 34112
Re: Legality of an advance payment of funds into escrow
in connection with an FDOT road-widening project.
Gentlemen:
You have asked for my opinion as to whether it is legal for the Clerk of the
County Court to make an advance payment of$4,510,333 into an escrow account
with the Florida Department of Financial Services for the relocation of
underground water and wastewater infrastructure owned by the Collier County
Water and Sewer District("CCWSD"),in order to accommodate the widening of
U.S.41 by the Florida Department of Transportation("FDOT")("the relocation
services").1 The Clerk's concern regarding legality stems from Section 129.09,
Fla. Stat.,which holds the Clerk personally liable for the payment of county funds
Pursuant to Section 2 of the Collier County Water-Sewer District Act,
Chapter 2003-353,Laws of Florida("the District Act"),the Board of County
Commissioners of Collier County is the governing board of the District.
ww w.Arth urE n gl and la w.co m
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in excess of any expenditure allowed by county ordinance,and subject to criminal
penalty if the action is taken willfully and knowingly.
For the reasons set out below, it is my opinion that it is legal for the Clerk to
make the advance payment contemplated for the relocation services.
Analysis
You have provided me with copies of a letter from Mr.Brock requesting an
opinion from the Attorney General,a responsive letter received from the Office of
the Attorney General("the OAG's letter"),a letter from the County Attorney's
office to Florida's Chief Financial Officer("CFO"), a responsive letter received
from Chief Counsel to the CFO("the CFO's letter"),and select other materials.
You have also advised me that the Memorandum of Agreement between the
CCWSD,FDOT, and the Division of Treasury of the Florida Department of
Financial Services("the Treasury" 2)which was attached to the County Attorney's
letter to the CFO and provides for an escrow account of$4,510,333,was approved
and provided to the County by FDOT and Treasury,and was approved by the
Board of County Commissioners on January 22,2013.3 In preparing for this
opinion, I have reviewed these materials, and applicable statutes and administrative
regulations.
Given your familiarity with the four letters you provided,I will not repeat in
detail the contents of those letters.4 For the purpose of my opinion,however, it is
necessary to reference certain statements in those letters.
The AGO's letter declined to provide a fonnal legal opinion on the legality
of an advance payment for the relocation services. Nonetheless,it informally
suggested that the Clerk has broad authority to make advance payments for
2 Section 20.121,Fla. Stat.,provides that the head of the Department of
Financial Services is the Chief Financial Officer, and that the Division of
Treasury is one of the divisions within the Department.
3 I note that the copy of the Memorandum sent to me is a three page document
with signature lines for FDOTG and Treasury,but no signature line for
CCWSD.
4 Although the issue of competitive bidding is discussed in these letters,I do
not interpret your request as asking me whether the relocation project must
be competitively bid. The office of the Attorney General has indicated that
it need not be under the circumstances surrounding the relocation services.
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services which require the expenditure of County funds. The letter pointed to the
statute--section 28.235,Fla. Stat.--which authorizes the Clerk to make advance
payments for services pursuant to rules adopted by the CFO for advance payments
submitted by agencies of the state,and identified Rule 69I-410.120(3)(b)as the
Rule applicable for that purpose. That Rule requires advance approval by the CFO
for any advance payment by a state agency.
When the County Attorney sought CFO approval,the CFO's letter said that
no advance approval by the CFO was required for the advance payment being
contemplated because the District Act which reestablished the current powers of
the CCWSD--Chapter 2003-353,Laws of Florida--gave plenary authority to the
Clerk to carry out the County's decision to make an advance payment for the
relocation services. The letter noted that the Act provides statutory authority for
the County to determine if its interests were served by the arrangements,and that
the Act expressly declared the exercise of powers under the Act is not subject to
limitations or provisions of any other law or supervision by any other
governmental body. Based on that analysis,the AGO's letter states that the
District Act trumps any interpretation of Section 28.235 which would have
required advance approval by the CFO.
Two things are apparent from the AGO's and the CFO's letters. First,the
two letters differ on the effect of the general statute which authorizes the Clerk to
make advance payments on behalf of the County, Section 28.238,and the special
law which reestablished and give powers to the CCWSD. Second,however, both
letters suggested that the legality of the Clerk's advance payment in effect hinges
on whether the contemplated arrangement served a public purpose.
In Alachua County v. Powers, 51 So. 2d 32(1977),the Florida Supreme
Court considered the interaction of various statutes related to the functions of the
Alachua County Commission and the Alachua County Clerk of Court. In the
course of its analysis,the Court commented that the phrase"legality of
expenditure"contemplates,among other things,that the funds are properly spent
for a public purpose. Id. at 37. The Court also reiterated and applied the rule of
statutory construction to the effect that statutes which relate to the same or a
similar subject must be considered in pari material,should be construed together,
and should preserve the force of both without destroying their evident intent. Id. at
40. Accord, e.g., Ferguson v. State, 377 So.2d 709,701 (Fla. 1979).
3
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In my opinion,the CFO's letter presents a more compelling basis than the
AGO's letter for determining whether advance approval by the CFO is required for
the legality of the Clerk's advance payment into escrow for the relocation services.
For one thing,the AGO's letter does not appear to have considered the
District Act,and consequently made no attempt to reconcile its provisions with
those in Section 28.235. This is not a criticism of the letter from the Attorney
General's office,however. The letter was attempting to be helpful to the Clerk by
providing informal comments for guidance on the question of legality, and was not
an opinion of the Attorney General on the issue.
On the other hand,the CFO's letter attempts to construe Section 28.235
together with the District Act in an effort to preserve the force of both statutes
without destroying the evident intent of either. That is,the letter acknowledges the
existence of statutory authorization for advance payments on behalf of a county for
services,but sidesteps the requirement in Section 28.235 that the Clerk should
follow"rules or procedures"adopted by the CFO for advance payments by state
agencies.
In my opinion,the substantive intent of Section 28.235 --which is reflected
in its title"Advance payments by clerk of circuit court"--is to authorize the Clerk
to make advance payments for services on behalf of a county. It is only the
designated procedural vehicle for doing that under a Rule designed for state
advance payments which makes the exercise of that authorization problematic.
The Rule adopted for state agency purchases--Rule 69I-410.120(3)(b) --
not only requires advance approval by the CFO approval, but mandates a specified
level of savings to the state and requires that the services being provided are
essential to the operation of a state agency. For all practical purposes,no county
could meet these latter two requirements. Further,there is no obvious institutional
rationale for requiring the CFO to approve payments duly authorized at the county
level for the expenditure of county funds.
For these reasons,I agree with General Counsel for the CFO that a broad
interpretation of the County's authority under the District Act--the discretionary
authority found in Chapter 2003-353,Laws of Florida,and apparently already
exercised by the County on January 22nd--reconciles and fulfills the general
intent of both Section 28.235 and Chapter 2003-353,Laws of Florida, even though
the procedural steps specified in Section 28.235 pose an obstacle to carrying out
that intent. As a practical matter, it would appear that the CFO in effect has
4
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already given the requisite approval when a division in the Department of which he
is Head,the Treasury,approved and passing along for County approval the
proposed escrow arrangement for the relocation services which is set out in the
Memorandum of Agreement.
One further observation on the question you've posed is warranted in light
of the Clerk's concern for personal liability and possible criminal penalties under
Section 129.09,Fla. Stat. I am satisfied that the Clerk has in good faith exercised
due diligence in attempting to assure himself of the legality of making an advance
escrow payment of$4,510,333 for the relocation services being undertaken on
behalf of the County. After obtaining a legal opinion from his counsel that
advance CFO approval was required,the Clerk endeavored to get a determination
on that issue from the highest legal authority in Florida state government: the
Attorney General. When that was not forthcoming and the informal guidance
provided by that office pointed to the same Rule requirement for prior CFO
approval on which the Clerk's counsel had relied, a request for advance approval
was sought from the CFO. General counsel to the CFO turned aside that request as
being unnecessary,but wrote that"[t[he CFO applauds the County's good
stewardship of public money" in exercising its statutory discretion to pay in
advance for the relocation project by FDOT's contractor.
Short of filing a declaratory action on the issue,which could not have
resulted in a final judicial determination on the issue before the scheduled
commencement for work on the relocation project in March,I know of no other
source for legal advice within state government to which the Clerk could have
turned. Thus,I believe the Clerk has done all that he appropriately could do to
ascertain the substantive intent of Section 28.235 and Chapter 2003-353,Laws of
Florida,and to address to the fullest extent possible the procedural directive in
Section 28.235 in order to satisfy himself of the legality of making an advance
payment for the relocation project.
For the reasons expressed, it is my opinion that it is lawful for the Clerk to
make the advance payment of$4,512,333 which has been authorized by the Board
of County Commissioners and approved by FDOT and the Treasury.
Respectfully yours,
9 /
/ 4
5
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Go ,er county
Public Utilities Division
Planning & Project Management
Jerrold R. Whitt, Special Projects Manager
Hydro Solutions Consulting, LLC
P.O. Box 1249
Bartow, FL 33831-1249
Dear Mr. Whitt,
The Collier County Water-Sewer District accepts the official estimate of$4,655,380.00 for utility
relocation work associated with UWHCA FPID number 415621-2-56-01, "US 41 from SR 951 to
Greenway (Design/Build Project)". The money is on deposit and available for the Department
of Transportation to cover the selected low bid amount plus 2% for C.E.I and 10% for
contingency, for a total deposit of$5,214,025.60.
Sincerely,
Tom Chmelik, P.E.
Director of Planning and Project Management
Loy z -44
auNfiw
Planning&Project Management Department•3339 Tamiami Trail East,Suite 303 •Naples,Florida 34112-5361 •239-2524285•FAX 239-252-5378
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RESOLUTION NO.2013-
A RESOLUTION BY THE BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY FLORIDA,AS THE EX-OFFICIO GOVERNING BODY
OF THE COLLIER COUNTY WATER-SEWER DISTRICT, ACCEPTING
THE UTILITY RELOCATION BID AMOUNT OF $4,655,380 IN
CONNECTION WITH FDOT'S PROJECT TO WIDEN U.S. 41 (TAMIAMI
TRAIL EAST) BETWEEN COUNTY ROAD 951 (COLLIER BOULEVARD)
AND GREENWAY ROAD.
WHEREAS, the State of Florida Department of Transportation (FDOT) and Collier
County("County") entered into a Utility Work by Highway Contractor Agreement(UWHCA)on
or about January 22, 2013, whereby FDOT is to relocate County utilities as part of a
design/build project to widen U.S. 41 between County Road 951 and Greenway Road (the
"Project"); and
WHEREAS,the UWHCA provides that if the portion of the bid for the utility work on the
Project exceeds FDOT's official estimate by more than ten (10) percent, and FDOT does not
elect to participate in the cost of the utility work, the County may elect to remove the utility
relocation work from the Project and perform the work itself, as long as notice is provided within
ten(10) days from bid opening to FDOT; and
WHEREAS, FDOT has notified the County that the low bid for the utility relocation
portion of the Project came in at $4,655,380, which is in excess of ten (10) percent of FDOT's
original estimate dating back to December 2012, and that it will not contribute toward the
relocation of the County's utilities; and
WHEREAS, the County has considered the increased cost of the bid for the utility
relocation work on the Project and has determined that the bid is reasonable and that it should
proceed with the terms of the UWHCA and have FDOT include the utility relocation work as part
of its Project.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA,that:
1. The Board of County Commissioners approves and accepts the low bid for the utility work
on the FDOT project to widen U.S. 41 between County Road 951 and Greenway Road in the
amount of$4,655,380;
2. The Collier County Clerk shall send a certified copy of this Resolution to FDOT; and
3. County staff is directed to take all necessary steps required to fulfill the terms under the
UWHCA consistent with this Resolution.
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This RESOLUTION ADOPTED after motion, second, and majority vote favoring
same, this 24th day of September,2013.
ATTEST:
DWIGHT E.BROCK, Clerk BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORIDA,AS THE
GOVERNING BODY OF COLLIER
COUNTY AND EX-OFFICIO THE
GOVERNING BODY OF THE COLLIER
COUNTY WATER-SEWER DISTRICT
By:
,Deputy Clerk
By:
GEORGIA A. HILLER,ESQ.
Chairwoman
Approved as to form and legality:
OLLEEN M. GREENE,ESQ.
Assistant County Attorney
13-PUW-00222/24
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