Agenda 04/26/2011 Item #16C2
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4/26/2011 Item 16.C.2.
EXECUTIVE SUlVIMARY
Recommendation to a) approve a Utility Work Agreement and a Utility Work by -Highway
Contractor Agreement with the Florida Department of Transportation for the relocation of
water and wastewater lines to facilitate the widening of State Route 84 (Davis Boulevard); b)
approve two Florida Department of Transportation standard form resolutions authorizing the
Chairman of the Board of County Commissioners to execute each agreement; and, c) approve
the requisite budget amendment.
OBJECTIVE: To establish the necessary work agreements for the relocation of water and wastewater
lines to facilitate the widening of State Route 84" (Davis Boulevard).
CONSIDERATIONS: The Florida Department of Transportation (FDOT) is planning to widen State
Route 84 (Davis Boulevard) between Santa Barbara Boulevard and Radio Road. The Collier County
Water-Sewer District has existing underground water and wastewater facilities that will require
relocation to accommodate the road widening project. The relocations will be done by the highway
contractor.
The FDOT requires that the owners of the utility facilities, located within the limits of the road
widening project, execute two agreements: the Utility Work Agreement and the Utility Work by
Highway Contractor Agreement. The Utility Work Agreement is a general agreement that utility
relocate work is needed during the project, and that the cost of relocation is the responsibility of the
owner of the facilities; in this case, the Collier County Water-Sewer District (CCWSD). The Utility
Work by Highway Contractor Agreement is an agreement to have the highway contractor perfbnn the
utility relocates for the CCWSD, and allows the CCWSD to elect to have the utility work removed
from the contract if the bid exceeds the estimate by more than ten percent.
The attached Resolutions, if approved, will authorize the Chainnan of the Board of County
Commissioners to execute the requisite agreements. Construction on the road widening project is
anticipated to begin in January 2012.
FISCAL IMPACT: Estimated construction cost is $247,000 for water facilities, and $265,000 for
wastewater facilities (combined total of $512,000). Water user fee funds (Fund 412) in the amount of
$247,000 are available in project 70045 for the relocation of water lines. A budget amendment to
move $130,000 in wastewater user fee funds (Fund 414) from project 70050 to project 73045 is
required to fully fund project 73045 for the relocation of wastewater lines.
GROWTH MANAGEMENT IMPACT: This project will support the user fee project that is
consistent with and will further the Goals, Objectives, and Policies of the Collier County Growth
Management Plan.
LEGAL CONSIDERATIONS: Section 337.403(1), Florida Statutes provides that:
Any utility heretofore or hereafter placed upon, under, over, or along any public road or
publicly owned rail corridor that is found by the authority to be unreasonably interfering in
any way with the convenient, safe, or continuous use, or the maintenance, improvement,
extension, or expansion, of such public road or publicly ovmed rail corridor shall, upon 30
days' written notice to the utility or its agent by the authority, be removed or relocated by
such utility at its own expense except as provided in paragraphs (a)-(t). (Emphasis Added.)
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4/26/2011 Item 16.C.2.
The limited exception in paragraphs (a)-Cf) do not apply in this instance. This item has been
reviewed and approved by the County Attorney's Office and is legally sufficient. This item
requires a majority vote. -JBW
RECOMMENDATION: That the Board of County Commissioners, as Ex-officio the Governing
Board of the Collier County Water-Sewer District, approve
1. a Utility Work Agreement with the Florida Department of Transportation; and,
2. a Utility Work by Highway Contractor Agreement with the Florida Department of
Transportation; and,
3. two Florida Department of Transportation standard form resolutions authorizing the Chairman
to execute each agreement; and,
4. the required budget amendment.
PREPARED BY: Nathan Beals, Project Manager, Public Utilities Planning and Project Management
Department.
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4/26/2011 Item 16.C.2.
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.C.2.
Item Summary: Recommendation to a) approve a Utility Work Agreement and a Utility
Work by Highway Contractor Agreement with the Florida Department of Transportation; b)
approve two Florida Department of Transportation standard form resolutions authorizing the
Chairman of the Board of County Commissioners to execute each agreement; and, c) approve
the requisite budget amendment.
Meeting Date: 4/26/2011
Prepared By
Name: Nathan Beals
Title: Project Manager, Associate,Public Utilities Engine
4/6/2011 9:41:01 AM
. Approved By
Name: CromerAaron
Title: Project Manager, Principal,Public Utilities Engineering
Date: 4/6/2011 9:56:23 AM
Name: HapkeMargie
Title: VALUE MISSING
Date: 4/6/2011 10:38:47 AM
Name: SunyakMark
Title: Project Manager, PrincipaI,Public Utilities Engineering
Date: 4/6/2011 10:58:03 AM
Name: ParkerNicole
Title: Contracts Specialist,Purchasing & General Services
Date: 4/7/2011 11:14:47 AM
Name: HapkeMargie
Title: VALUE MISSING
Date: 4/7/2011 2:04:21 PM
. Name: Paul Mattausch
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4/26/2011 Item 16.C.2.
Title: Director - Water, Water
Date: 4/7/2011 2:57:14 PM
Name: Carnell Steve
Title: Director - Purchasing/General Services,Purchasing
Date: 4/7/2011 2:57:30 PM
Name: ChmelikTom
Title: Project Manager, Principal,Public Utilities Engine
Date: 4/8/2011 8:30:51 AM
Name: YilmazGeorge
Title: Director - Wastewater, Wastewater
Date: 4/8/2011 9:24:01 AM
Name: WidesTom
Title: Director - Operations Support - PUD,Utilities Fina
Date: 4/8/2011 10:39:26 AM
Name: DeLonyJim
Title: Administrator - Public Utilities,
Date: 4/8/2011 12:42:23 PM
Name: WhiteJennifer
Title: Assistant County Attorney,County Attorney
Date: 4/13/2011 8:41:44 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 4/15/2011 11 :46:44 AM
Name: UsherSusan
Title: ManagementlBudget Analyst, Senior,Office of Manage
Date: 4/15/20111:01:22 PM
Name: OchsLeo
Title: County Manager
Date: 4/16/2011 8:02:09 PM
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4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
RESOLUTION
UTILITY AGREEMENT
Form No.
UtiliUes
Rev. 00/00
. Financial Project ID: 195415-4-52-01
County/Section No: Collier
District Document No: N/A
Utility Agency/Owner (UAO): Collier County Water-Sewer District
Federal Project 10:
State Road No. 84 (Davis Blvd.)
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 the Collier County Water-
Sewer District hereinafter referred to as the "UAO", to execute and deliver to the FDOT the agreement identified as
UTILITY WORK AGREEMENT (at UAO's Sole Expense), hereinafter referred to as the "Agreement";
NOW, THEREFORE, BE IT RESOLVED BY THE UAO:
That Fred W. Covle, as Chairman of the Collier County Board of County Commissioners and as ex-officio
Chairman of the qoverninq board of the Collier County Water-Sewer District, be hereby authorized and directed to
execute and deliver the Agreement to the FOOT.
A certified copy of this Resolution is to be forwarded to the FOOT along with the executed Agreement.
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ON MOTION of
and passed by the UAO on the _ day of
, seconded by
, year of
, the above resolution was introduced
A TIEST:
DWIGHT E. BROCK, CLERK
BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY,
FLORIDA, AS THE EX-OFFICIO CHAIRMAN OF THE GOVERNING
BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT
By:
By:
I DEPUTY CLERK
FRED W. COYLE, CHAIRMAN
Approval for form and legal sufficiency:
~~~~
Jennifer 1f.'White
Assistant County Attorney
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C:\Ray's Documents\Forms\Resolutlon Utility Agreemenldoc
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4/26/2011 Item 16.C.2.
Form No. 710-010-55
ummes
10104
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
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Financial Project 10: 195416-4-52-01
County: Collier
District Document No:
Utility Agency/Owner (UAO): Collier County Water-Sewer District
Federal Project 10:
State Road No,: 84
THIS AGREEMENT, entered into this day of , year of , by and
between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred
to as the "FOOT, and COLLIER COUNTY WATER-SEWER DISTRICT, hereinafter referred to as
the "UAO";
WITNESSETH:
W,HEREAS, the UAO owns or desires to install certain utility facilities which are located on
the public road or publicly owned rail corridor identified below, hereinafter referred to as the
"Facilities" (said term shall be deemed to include utility facilities as the same may be relocated,
adjusted, or placed out of service); and
WHEREAS, the FOOT, is currently engaging in a project which involves constructing,
reconstructing, or otherwise changing a public road and other improvements located on a public
road or publicly owned rail corridor identified as David Boulevard From East of Santa Barbara .
Blvd. to West of Radio Rd. (CR 856), State Road No.84, hereinafter referred to as the "Project";
and
WHEREAS, the Project requires the location (vertically and/or horizontally), protection,
relocation, installation, adjustment, or removal of the Facilities, or some combination thereof,
hereinafter referred to as "Utility Work"; and
WHEREAS, under the law of the State of Florida, the Utility Work must be performed at the
sole cost and expense of the UAO; and
WHEREAS, the FOOT and the UAO desire to enter into an agreement which establishes
the terms and conditions applicable to the Utility Work;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the FOOT and the UAO hereby agree as follows:
1, Performance of Utility Work
a. The UAO shall perform the Utility Work in accordance with the utility relocation
schedule attached hereto as Exhibit A and by this reference made a part hereof (the
Schedule) and the plans and specifications for the Utility Work which have been
previously approved by the FOOT (the Plans), said Plans being incorporated herein .
and made a part hereof by this reference. If the Schedule and the Plans have not
been prepared as of the date of the execution of this Agreement, then the Utility Work
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4/26/2011 Item 16.C.2.
Form No. 710-010-55
Utilities
10/04
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
shall be performed in accordance with the Plans, and the Schedule that are hereafter
prepared in compliance with the notice previously sent to the UAO which established
the terms and conditions under which those documents are to be prepared. The
FOOT's approval of the Plans shall not be deemed to be an adoption of the Plans by
the FOOT nor a substitution for the proper exercise of engineering judgment and the
UAO shall at all times remain responsible for any errors or omissions in the Plans.
The Utility Work shall include all Facilities located on the Project and neither the
failure of the UAO to include all of the Facilities in the Schedule, nor the Plans. nor
the failure of the FOOT to identify this omission during its review of the Plans shall
relieve the UAO of the obligation to make those Facilities part of the Utility Work.
Time shall be of the essence in complying with the total time shown by the Schedule
for the Utility Work as well as any and all interim time frames specified therein. The
Utility Work shall be performed in a manner and using such methods so as to not
cause a delay to the FOOT or its contractors in the prosecution of the Project. The
. UAO shall be responsible for all costs incurred as a result of-any delay to the FOOT
or its contractors caused by errors or omissions in the Plans or the Schedule
(including location of the Facilities and the proper inclusion of all Facilities as part of
the Utility Work as stated above); failure to perform the Utility Work in accordance
with the Plans and Schedule; or failure of the UAO to comply with any other obligation
under this Agreement or under the law.
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b. All Utility Work shall be performed by UAO's own forces or its contractor at the
UAO's sole cost and expense. The UAO shall be responsible for obtaining any and
all permits that may be necessary to perform the Utility Work. The FOOT's Engineer
(as that term is defined by the FOOT's Standard Specifications for Road and Bridge
Construction) has full authority over the Project and the UAO shall be responsible for
coordinating and cooperating with the FOOT's Engineer. In so doing, the UAO shall
make such adjustments and changes in the Plans and Schedule as the FOOT's
engineer shall determine are necessary for the prosecution of the Project and shall
stop work or modify work upon order of the FDOT's engineer as determined by the
FOOT's engineer to be necessary for public health, safety or welfare. The UAO shall
not be responsible for the cost of delays caused by such adjustments or changes
unless they are attributable to the UAO pursuant to subparagraph 1 a.
c. After the FOOT has received a proper Schedule and Plans, the FOOT will issue a
notice to the UAO which authorizes the Utility Work to proceed. The UAO shall notify
the appropriate FOOT office in writing prior to beginning the Utility Work and when the
UAO stops, resumes, or completes the Utility Work. The Utility Work shall be
performed under the conditions of, and upon completion of the Utility Work, the
Facilities shall be deemed to be located on the public road or publicly owned rail
corridor under and pursuant to, the Utility Permit (Note: Intent of this line is to
allow either attachment of or separate reference to the permit).
. 2.
Claims Against UAO
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4/26/2011 Item 16.C.2.
Fonn No. 710-010.55
UUlitiB.
10104
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION .
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
a. In the eventthe FOOT's contractor provides a notice ofintentto make a claim against
the FOOT relating to the Utility Work, the FOOT will, in accordance with the FOOT's
procedure, notify the UAO of the notice of intent and the UAO will thereafter keep and
maintain daily field reports and all other records relating to the intended claim.
b. In the event the FOOT's contractor makes any claim against the FOOT relating to the
Utility Work, the FOOT will notify the UAO of the claim and the UAO will cooperate
with the FOOT in analyzing and resolving the claim within a reasonable time. Any
resolution of any portion of the claim directly between the UAO and the FOOT's
contractor shall be in writing, shall be subject to written FOOT concurrence and shall
specify the extent to which it resolves the claim against the FOOT.
3. Out of Service Facilities
No Facilities shall be left in place on FOOT's Right of Way after the Facilities are no longer
active (hereinafter Placed out of service/Deactivated) unless specifically identified as such
in the Plans. The following terms and conditions shall apply to Facilities Placed out of
service/Deactivated, but only to said Facilities Placed out of service/Deactivated:
a. The UAO acknowledges its present and continuing ownership of and responsibility for
Facilities Placed out of service/Deactivated.
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b. The FOOT agrees to allow the UAO to leave the Facilities within the right of way
subject to the continuing satisfactory performance of the conditions of this Agreement
by the UAO. In the event of a breach of this Agreement by the UAO, the Facilities
shall be removed upon demand from the FOOT in accordance with the provisions of
subparagraph 3. e. below.
c. The UAO shall take such steps to secure the Facilities and othef'\o\lise make the
Facilities safe in accordance with any and all applicable local, state or federal laws
and regulations and in accordance with the legal duty of the UAO to use due care in
its dealings with others. The UAO shall be solely responsible for gathering all
information necessary to meet these obligations.
d. The UAO shall keep and preserve all records relating to the Facilities, including, but
not limited to, records of the location, nature of, and steps'taken to safely secure the
Facilities and shall promptly respond to information requests concerning the Facilities
that are Placed out of service/Deactivated of the FOOT or other permittees using or
seeking use of the right of way.
e. The UAO shall remove the Facilities upon 30 days prior written request of the FOOT
in the event that the FOOT determines that removal is necessary for FOOT use of the
right of way or in the event that the FOOT determines that use of the right of way is
needed for other active utilities that cannot be othef'\o\lise accommodated in the right of .
way. In the event that the Facilities that are Placed out of Service/Deactivated would
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4/26/2011 Item 16.C.2.
FOnT! No. 710-010-55
Ullllties
10/04
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
not have qualified for reimbursement under this Agreement, removal shall be at the
sole cost and expense of the UAO and without any right of the UAO to object or make
any claim of any nature whatsoever with regard thereto. In the event that the
Facilities that are Placed out of Service/Deactivated would have qualified for
reimbursement only under Section 337.403 (1)(a), Florida Statutes, removal shall be
at the sole cost and expense of the UAO and without any right of the UAO to object
or make any claim of any nature whatsoever with regard thereto because such a
removal would be considered to be a separate future relocation not necessitated by
the construction of the project pursuant to which they were Placed out of
service/Deactivated, and would therefore not be eligible and approved for
reimbursement by the Federal Government. In the event that the Facilities that are
Placed out of service/Deactivated would have qualified for reimbursement for other
reasons, removal of the out of service Facilities shall be reimbursed by the FOOT as
though the Facilities had not been Placed out of service/Deactivated. Removal shall
be completed within the time specified in the FOOT's notice to remove. In the event
that the UAO fails to perform the removal properly within the specified time, the FOOT
may proceed to perform the removal at the UAO's expense pursuant to the
provisions of Sections 337.403 and 337.404, Florida Statutes.
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f. Except as otherwise provided in subparagraph e. above, the UAO agrees that the
Facilities shall forever remain the legal and financial responsibility of the UAO. The
UAO shall reimburse the FOOT for any and all costs of any nature whatsoever
resulting from the presence of the Facilities within the right of way. Said costs shall
include, but shall not be limited to, charges or expenses which may result from the
future need to remove the Facilities or from the presence of any hazardous substance
or material in the Facilities or the discharge of hazardous substances or materials
from the Facilities. Nothing in this paragraph shall be interpreted to require the UAO
to indemnify the FOOT for the FOOT's own negligence; however, it is the intent that
all other costs and expenses of any nature be the responsibility of the UAO.
4. Default
a. In the event that the UAO breaches any provision of this Agreement, then in addition
to any other remedies which are otherwise provided for in this Agreement, the FOOT
may exercise one or more of the following options, provided that at no time shall the
FOOT be entitled to receive double recovery of damages:
(1) Terminate this Agreement if the breach is material and has not been cured
within 60 days from written notice thereof from the FOOT.
(2) Pursue a claim for damages suffered by the FOOT.
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(3) Suspend the issuance of further permits to the UAO for the placement of
Facilities on FOOT property if the breach is material and has not been cured
within 60 days from written notice thereof from the FOOT until such time as the
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4/26/2011 Item 16.C.2.
Form No. 710-010-55
Utilities
10104
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
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breach is cured.
(4) Pursue any other remedies legally available.
(5) Perform any work with its own forces or through contractors and seek
repayment for the cost thereof under Section 337.403(3), Florida Statutes.
b. In the event that the FOOT breaches any provision of this Agreement, then in addition
to any other remedies which are otherwise provided for in the Agreement, the UAO
may exercise one or more of the following options:
(1) Terminate this Agreement if the breach is material and has not been cured
within 60 days from written notice thereof from the UAO.
(2) Pursue any other remedies legally available.
c. Termination of this Agreement shall not relieve either party from any obligations it has
pursuant to other agreements between the parties and from any statutory obligations
that either party may have with regard to the subject matter hereof.
5. Indemnification
FOR GOVERNMENT-OWNED UTILITIES:
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To the extent provided by law, the UAO shall indemnify, defend, and hold harmless the
FOOT and all of its officers, agents, and employees from any claim, loss, damage, cost,
charge, or expense arising out of any acts, action, error, neglect, or omission by the UAO,
its agents, employees, or contractors during the performance of the Agreement, whether
direct or indirect, and whether to any person or property to which FOOT or said parties may
be subject, except that neither the UAO, its agents, employees, or contractors will be liable
under this section for damages arising out of the injury or damage to persons or property
directly caused by or resulting from the negligence of the FOOT or any of its officers,
agents, or employees during the performance of this Agreement.
When the FOOT receives a notice of claim for damages that may have been caused by the
UAO in the performance of services required under this Agreement, the FOOT will
immediately forward the claim to the UAO. The UAO and the FOOT will evaluate the claim
and report their findings to each other within fourteen (14) working days and will jointly
discuss options in defending the claim. After reviewing the claim, the FOOT will determine
whether to require the participation of the UAO in the defense of the claim orto require the
UAO to defend the FOOT in such claim as described in this section. The FOOT's failure to .
notify the UAO of a claim shall not release the UAO from any of the requirements of this
section. The FOOT and the UAO will pay their own costs for the evaluation, settlement
negotiations, and trial, if any. However, if only one party participates in the defense of the
claim at trial, that party is responsible for all costs. .
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4/26/2011 Item 16.C.2.
Farm No. 710-010-55
Utilities
10/04
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
FOR NON-GOVERNMENT -OWNED UTILITIES;
The UAO shall indemnify, defend, and hold harmless the FOOT and all of its officers,
agents, and employees from any claim, loss, damage, cost, charge, or expense arising out
of any acts, action, error, neglect, or omission by the UAO, its agents, employees, or
contractors during the performance of the Agreement, whether direct or indirect, and
whether to any person or property to which FOOT or said parties may be subject, except
that neither the UAO, its agents, employees, or contractors will be liable under this section
for damages arising out of the injury or damage to persons or property directly caused by
or resulting from the negligence of the FOOT or any of its officers, agents, or employees
during the performance of this Agreement.
The UAO's obligation to indemnify, defend, and pay for the defense or at the FOOT's
option, to participate and associate with the FOOT in the defense and trial of any damage
claim or suit and any related settlement negotiations, shall arise within fourteen (14) days
of receipt by the UAO of the FOOT's notice of claim for indemnification to the UAO. The
notice of claim for indemnification shall be served by certified mail. The UAO's obligation
to defend and indemnify within fourteen (14) days of such notice shall not be excused
because of the UAO's inability to evaluate liability or because the UAO evaluates liability
and determines the UAO is not liable or determines the FOOT is solely negligent. Only a
final adjudication or judgment finding the FOOT solely negligent shall excuse performance
of this provision by the UAO. The UAO shall pay all costs and fees related to this
obligation and its enforcement by the FOOT. The FOOT's delay in notifying the UAO of a
claim shall not release UAO of the above duty to defend.
6.
Force Majeure
Neither the UAO nor the FOOT shall be liable to the other for any failure to perform under
this Agreement to the extent such performance is prevented by an act of God, war, riots,
natural catastrophe, or other event beyond the control of the non-performing party and
which could not have been avoided or overcome by the exercise of due diligence; provided
that the party claiming the excuse from performance has (a) promptly notified the other
party of the occurrence and its estimate duration, (b) promptly remedied or mitigated the
effect of the occurrence to the extent possible, and (c) resumed performance as soon as
possible.
7. Miscellaneous
a. The Facilities shall at all times remain the property of and be properly protected and
maintained by the UAO in accordance with the then current Utility Accommodation
Manual and the current utility permit for the Facilities.
b. Pursuantto Section 287.058, Florida Statutes, the FOOT may unilaterally cancel this
Agreement for refusal by the UAO to allow public access to all documents, papers,
letters, or other material subject to the provisions of Chapter 119, Florida Statutes,
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4/26/2011 Item 16.C.2.
Form No. 71Q..010-55
Ulilities
10104
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
and made or received by the UAO in conjunction with this Agreement.
.
c. This Agreement constitutes the complete and final expression of the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, or negotiations with respect thereto, except that the parties
understand and agree that the FOOT has manuals and written policies and
procedures which shall be applicable at the time of the Project and the relocation of
the Facilities and except that the UAO and the FOOT may have entered into joint
agreements for Utility Work to be performed by FOOT's highway contractor. To the
extent that such a joint agreement exists, this Agreement shall not apply to Facilities
covered by the joint agreement. Copies of FOOT manuals, policies, and procedures
will be provided to the UAO upon request.
d. This Agreement shall be governed by the laws of the State of Florida. Any provision
hereof found to be unlawful or unenforceable shall be severable and shall not affect
the validity of the remaining provisions hereof.
e. Time is of the essence in the performance of all obligations under this Agreement.
f. All notices required pursuant to the terms hereof may be sent by first class United
States Mail, facsimile transmission, hand delivery, or express mail and shall be .
deemed to have been received by the end of five business days from the proper
sending thereof unless proof of prior actual receipt is provided. The UAO shall have
a continuing obligation to notify each District of the FOOT of the appropriate persons
for notices to be sent pursuant to this Agreement. Unless otherwise notified in
writing, notices shall be sent to the following addresses:
If to the UAO:
Nathan Beals, Proiect ManaQer
Collier County Public Utilities Division
3339 East Tamiami Trail, Suite 303
Naples, FL 34112
If to the FOOT:
Raymond Mercer, Utility Project Manager
FOOT District 1 Utilities Office
801 N. Broadway Ave., MS 1-11
Bartow, FL 33830
8. Certification
This document is a printout of an FOOT form maintained in an electronic format and all .
revisions thereto by the UAO in the form of additions, deletions, or substitutions are
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4/26/2011 Item 16.C.2.
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
reflected only in an Appendix entitled Changes to Form Document and no change is made
in the text of the document itself. Hand notations on affected portions of this document
may refer to changes reflected in the above-named .Appendix but are for reference
purposes only and do not change the terms of the document. By signing this document,
the UAO hereby represents that no change has been made to the text of this document
except through the terms of the appendix entitled "Changes to Form Document.1I
Form No. 710-010-55
UlIlIUes
10/04
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4/26/2011 Item 16.C.2.
Fonn No. 710-010-55
UllliUes
10104
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
You MUST signify by selecting or checking which of the following applies:
.
~
D
No changes have been made to this Form Document and no Appendix entitled
"Changes to Form Document" is attached.
No changes have been made to this Form Document, but changes are included on
the attached Appendix entitled "Changes to Form Document. n
IN WITNESS WHEREOF J the parties hereto have executed this Agreement effective the day and
year first written.
UTILITY: Collier County Water-Sewer District
BY: (Si~mature)
DATE:
(Typed Name: Fred W. Covle)
(Typed Title: Chairman, Collier Board of County
Commissioners) As Ex-Officio the governing board of the Collier County
Water-Sewer District
.
Recommend Approval by the District Utility Office
BY: (Skmature)
DATE:
FDOT Legal review
BY: (Si~:tnature)
DATE:
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
BY: (Siqnature)
DATE:
(Typed Name: )
(Typed Title: )
.
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4/26/2011 Item 16.C.2.
Form No. 710-010-55
Utilities
10/04
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK AGREEMENT
(at UAO's Sole Expense)
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY:
DATE:
{Typed Name:
(Typed Title:
)
1.\!TEST
!\WIGHTI.~'"
Ie
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Packet Page -911-
Approved as to form & legal sufficiency
~-B1V~
Assist t County Attorney
Cf-z..,vJJ 1 'P~ f2.... B. WH ,"i e
4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
RESOLUTION
UTILITY AGREEMENT
Fonn No.
UUlilies
Rev. 0010O
.
Financial Project 10: 195415-4-52-01
County/Section No: Collier
District Document No: N/A
Utility Agency/Owner (UAO): Collier County Water-Sewer District
Federal Project 10:
State Road No. 84 (Davis Blvd.)
WHEREAS, the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the
"FOOT", proposes to construct or reconstruct a transportation facility identified above, hereinafter referred to as the
"Project"; and
WHEREAS, in order for the FOOT to proceed with the Project, it is necessary for the Collier County Water-
Sewer District hereinafter referred to as the "UAO" , to execute and deliver to the FOOT the agreement identified as
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE), hereinafter referred to as the
"Agreement";
NOW, THEREFORE, BE IT RESOLVED BY THE UAO:
That Fred W. Covle, as Chairman of the Collier County Board of County Commissioners and as ex-officio
Chairman of the Qoverninq board of the Collier County Water-Sewer District, be hereby authorized and directed to
execute and deliver the Agreement to the FOOT.
A certified copy of this Resolution is to be forwarded to the FOOT along with the executed Agreement.
.
ON MOTION of
and passed by the UAO on the _ day of
, seconded by
. year of
, the above resolution was introduced
ATTEST:
DWIGHT E. BROCK, CLERK
BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY,
FLORIDA, AS THE EX-OFFICIO CHAIRMAN OF THE GOVERNING
BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT
By:
By:
, DEPUTY CLERK
FRED W. COYLE, CHAIRMAN
Approval for form and legal sufficiency:
Jennifer ~~""D ~
Assistant County Attorney
.
C:\Ray's Documents\Forms\Resolution Utility Agreement.doc
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4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
Form No. 710-010-22
llTlLITIES
10104
Financial Project 10: 195416-4-52-01
County: Collier (03001)
District Document No: 1
Utility Agency/Owner (UAO): Collier County Water-Sewer District
Federal Project 10:
State Road No.: 84
THIS AGREEMENT. entered into this day of , year of , by and between the STATE
OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter refelTed to as the "FOOT", and Collier County
Water-Sewer District, hereinafter referred to as the "UAO";
WITNESSETH:
WHEREAS, the FOOT, is constructing, reconstructing, or otherwise changing a portion of a public road or
publicly owned rail corridor, said project being identified as State Road No. 84 (Davis Blvd.) From East of Santa
Barbara Blvd. to West of Radio Rd. (CR 856), State Road No.: 84, hereinafter referred to as the "Project"; and
WHEREAS, the UAO owns or desires to install certain utility facilities which are located within the limits of the
Project hereinafter referred to as the "Facilities" (said term shall be deemed to include utility facilities as the same may
be relocated, adjusted, installed, or placed out of service pursuant to this Agreement); and
WHEREAS, the Project requires the location (vertically and/or horizontally), protection, relocation, installation,
adjustment or removal of the Facilities, or some combination thereof, hereinafter referred to as "Utility Work"; and
WHEREAS, the FOOT and the UAO desire to enter into a joint agreement pursuant to Section 337.403(1 )(b),
Florida Statutes for the Utility Work to be accomplished by the FOOT's contractor as part of the construction of the
Project; and
WHEREAS, the UAO, pursuant to the terms and conditions hereof, will bear certain costs associated with the
Utility Work;
NOW, THEREFORE, in consideration ofthe premises and the mutual covenants contained herein, the FOOT
and the UAO hereby agree as follows:
1. Design of Utility Work
a. UAO shall prepare, at UAO's sole cost and expense, a final engineering design. plans, technical
special provisions, a cost estimate, and a contingency Utility Work Schedule (said contingency
schedule to be used in the case of a bid rejection) for the Utility Work (hereinafter referred to as the
"Plans Package") on or before Mav 9th, year of 2011.
b. The Plans Package shall be in the same format as the FOOT's contract documents for the Project
and shall be suitable for reproduction.
c. Unless otherwise specifically directed in writing, the Plans Package shall include any and all activities
and work effort required to perform the Utility Work, including but not limited to, all clearing and
grubbing, survey work and shall include a traffic control plan.
d.
The Plans Package shall be prepared in compliance with the FOOT's Utility Accommodation Manual
and the FOOT's Plans Preparation Manual in effect at the time the Plans Package is prepared, and
the FOOT's contract documents for the Project. If the FOOT's Plans Preparation Manual has been
updated and conflicts with the Utility Accommodation Manual, the Utility Accommodation Manual shall
apply where such conflicts exist.
e.
The technical special provisions which are a part of the Plans Package shalf be prepared in
accordance with the FDOT's guidelines on preparation of technical special provisions and shall not
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4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILllY EXPENSE)
Form No. 710-010-22
UTlLmES
10J04
duplicate or change the general contracting provisions of the FOOT's Standard Specifications for
Road and Bridge Construction and any Supplemental Specifications, Special Provisions, or
Developmental Specifications of the FOOT for the Project.
.
f. UAO shall provide a copy of the proposed Plans Package to the FOOT, and to such other right of way
users as designated by the FOOT, for review at the following stages: Phase 3-r. Prior to submission
of the proposed Plans Package for review at these stages, the UAO shall send the FOOT a work
progress schedule explaining how the UAO will meet the FOOT's production schedule. The work
progress schedule shall include the review stages, as well as other milestones necessary to complete
the Plans Package within the time specified in Subparagraph a. above.
g. In the event that the FOOT finds any deficiencies in the Plans Package during the reviews performed
pursuant to Subparagraph f. above, the FOOT will notify the UAO in writing of the deficiencies and the
UAO will correct the deficiencies and return corrected documents within the time stated in the notice.
The FOOT's review and approval of the documents shall not relieve the UAO from responsibility for
subsequently discovered errors or omissions.
h. The FOOT shall furnish the UAO such information from the FOOT's files as requested by the UAO;
however, the UAO shall at all times be and remain solely responsible for proper preparation of the
Plans Package and for verifying all information necessary to properly prepare the Plans Package,
including survey information as to the location (both vertical and horizontal) of the Facilities. The
prOViding of information by the FOOT shall not relieve the UAO of this obligation nor transfer any of
that responsibility to the FOOT.
I.
The Facilities and the Utility Work will include all utility facilities of the UAO which are located within
the limits of the Project, except as generally summarized as follows: N/A. These exceptions shall be
handled by separate arrangement.
.
j. If any facilities of the UAO located within the project limits are discovered after work on the project
commences to be qualified for relocation at the FOOT's expense, but not previously identified as
such, the UAO shall file a claim with the FOOT for recovery of the cost of relocation thereof. The
filing of the claim shall not necessarily entitle the UAO to payment, and resolution of the claim shall be
based on a determination of fault for the error. The discovery of facilities not previously identified as
being qualified for relocation at the FOOT's expense shall not invalidate this Agreement.
k. The UAO shall fully cooperate with all other right of way users in the preparation of the Plans
Package. Any conflicts that cannot be resolved through cooperation shall be resolved in the manner
determined by the FOOT.
I. Upon completion of the Utility Work, the Facilities shall be deemed to be located on the public road or
publicly owned rail corridor under and pursuant to the Utility Permit: _
(Note: It is the intent of this line to allow either attachment of or separate reference to the permit).
2. Performance of Utility Work
a. The FOOT shall incorporate the Plans Package into its contract for construction of the Project.
b. The FOOT shall procure a contractfor construction of the Project in accordance with the FOOT's
requirements.
c.
If the portion of the bid of the contractor selected by the FOOT which is for performance of the Utility
Work exceeds the FOOT's official estimate for the Utility Work by more than ten percent (10%) and
the FOOT does not elect to participate in the cost of the Utility Work pursuant to Section
337.403(1)(b), Florida Statutes, the UAO may elect to have the Utility Work removed from the
FOOT's contract by notifying the FOOT in writing within seven calendar days from the date that the
UAO is notified of the bid amount. Unless this election is made, the Utility Work shall be performed
.
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4/26/2011 Item 16.C.2.
.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
Fonn No. 710-010-22
UTilITIES
10/04
as part of the Project by the FOOT's contractor.
d. If the UAO elects to remove the Utility Work from the FOOT's contract in accordance with
Subparagraph 2. c., the UAO shall perform the Utility Work separately pursuant to the terms and
conditions of the FOOT's standard relocation agreement, the terms and conditions of which are
incorporated herein for that purpose by this reference, and in accordance with the contingency
relocation schedule which is a part of the Plans Package. The UAO shall proceed immediately with
the Utility Work so as to cause no delay to the FOOT or the FOOT's contractor in constructing the
Project.
e. The UAO shall perform all engineering inspection, testing, and monitoring of the Utility Work to insure
that it is properly performed in accordance with the Plans Package, except for the following activities:
N/A and will furnish the FOOT with daily diary records showing approved quantities and amounts for
weekly, monthly, and final estimates in accordance with the format required by FOOT procedures.
f. Except for the inspection, testing, monitoring, and reporting to be performed by the UAO in
accordance with Subparagraph 2. e., the FOOT will perform all contract administration for its
construction contract.
g. The UAO shall fully cooperate with the FOOT and the FOOT's contractor in all matters relating to the
performance of the Utility Work.
h.
The FOOT's engineer has full authority over the Project and the UAO shall be responsible for
coordinating and cooperating with the FOOT's engineer. In so doing, the UAO shall make such
adjustments and changes in the Plans Package as the FOOT's engineer shall determine are
necessary for the prosecution of the Project.
.
I.
The UAO shall not make any changes to the Plans Package after the date on which the FOOT's
contract documents are mailed to Tallahassee for advertisement of the Project unless those changes
fall within the categories of changes which are allowed by supplemental agreement to the FOOT's
contract pursuant to Section 337.11, Florida Statutes. All changes, regardless of the nature of the
change or the timing of the change, shall be subject to the prior approval of the FOOT.
3. Cost of Utility Work
a. The UAO shall be responsible for all costs of the Utility Work and all costs associated with any
adjustments or changes to the Utility Work determined by the FOOT's engineer to be necessary,
including, but not limited to the cost of changing the Plans Package and the increase in the cost of
performing the Utility Work, unless the adjustments or changes are necessitated by an error or
omission of the FOOT. The UAO shall not be responsible for the cost of delays caused by such
adjustments or changes unless they are attributable to the UAO pursuant to Subparagraph 4.a.
b. The initial estimate of the cost ofthe Utility Work is $457.000. At such time as the FOOT prepares its
official estimate, the FOOT shall notify the UAO of the amount of the official estimate for the Utility
Work. Upon being notified of the official estimate, the UAO shall have five (5) working days within
which to accept the official estimate for purposes of making deposits and for determining any possible
contribution on the part of the FOOT to the cost of the Utility Work, or to elect to have the Utility Work
removed from the FOOT's contract and performed separately pursuant to the terms and conditions
set forth in Subparagraph 2. d. hereof.
c.
At leastful!::ty (~ calendar days prior to the date on which the FOOT advertises the Project for bids,
the UAO will pay to the FOOT an amount equal to the FOOT's official estimate; plus 6% for
administrative costs of field work, tabulation of quantities, Final Estimate processing and Project
accounting (said amounts are to be hereinafter collectively referred to as the Allowances); plus 10%
of the official estimate for a contingency fund to be used as hereinafter provided for changes to the
Utility Work during the construction of the Project (the Contingency Fund).
.
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4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
Form No. 71()'{)10-22
UTILITIES
10104
.
d. Payment of the funds pursuant to this paragraph will be made (choose one):
[8] directly to the FOOT for deposit into the State Transportation Trust Fund.
D as provided in the attached Memorandum of Agreement between UAO, FOOT and the
State of Florida, Department of Financial Services, Division of Treasury. Deposits of less
than $100,000.00 must be pre-approved by the Department of Financial Services and
FOOT Comptroller's Office prior to execution of this agreement.
f.
e. If the portion ofthe contractor's bid selected by the FOOT for performance ofthe Utility Work exceeds
the amount of the deposit made pursuant to Subparagraph c. above, then subject to and in
accordance with the limitations and conditions established by Subparagraph 2. c. hereof regarding
FOOT participation in the cost of the Utility Work and the UAO's election to remove the Utility Work
from the Project, the UAO shall, within fourteen (14) calendar days from notification from the FOOT or
prior to posting of the accepted bid, whichever is earlier, pay an additional amount to the FOOT to
bring the total amount paid to the total obligation of the UAO for the cost of the Utility Work, plus
Allowances and 10% Contingency Fund. The FOOT will notify the UAO as soon as it becomes
apparent the accepted bid amount plus allowances and contingency is in excess of the advance
deposit amount; however, failure of the FOOT to so notify the UAO shall not relieve the UAO from its
obligation to pay for its full share of project costs on final accounting as provided herein below. In the
event that the UAO is obligated under this Subparagraph 3.e. to pay an additional amount and the
additional amount that the UAO is obligated to pay does not exceed the Contingency Fund already on
deposit, the UAO shall have sixty (60) calendar days from notification from the FOOT to pay the
additional amount, regardless of when the accepted bid is posted.
If the accepted bid amount plus allowances and contingency is less than the advance deposit
amount, the FOOT will refund the amount that the advance deposit exceeds the bid amount, plus
allowances and contingency if such refund is requested by the UAO in writing and approved by the
Comptroller of the FOOT or his designee.
.
g. Should contract modifications occur that increase the UAO's share of total project costs, the UAO will
be notified by the FOOT accordingly. The UAO agrees to provide, in advance of the additional work
being performed, adequate funds to ensure that cash on deposit with the FOOT is sufficient to fully
fund its share of the project costs. The FOOT shall notify the UAO as soon as it becomes apparent
the actual costs will overrun the award amount; however, failure of the FOOT to so notify the UAO
shall not relieve the UAO from its obligation to pay for its full share of project costs on final accounting
as provided herein below.
h. The FOOT may use the funds paid by the UAO for payment of the cost of the Utility Work. The
Contingency Fund may be used for increases in the cost of the Utility Work which occur because of
quantity overruns or because of adjustments or changes in the Utility Work made pursuant to
Subparagraph 2. h. Prior to using any of the Contingency Fund, the FOOT will obtain the written
conculTence of the person delegated that responsibility by written notice from the UAO. The
delegatee shall respond immediately to all requests for written concurrence. If the delegatee refuses
to provide written concurrence promptly and the FOOT determines that the work is necessary, the
FOOT may proceed to perform the work and recover the cost thereof pursuant to the provisions of
Section 337.403(3), Florida Statutes. In the event that the Contingency Fund is depleted, the UAO
shall, within fourteen (14) calendar days from notification from the FOOT, pay to the FOOT an
additional 10% of the total obligation of the UAO for the cost of the Utility Work established under
Subparagraph 3. e. for future use as the Contingency Fund.
I.
Upon final payment to the Contractor, the FOOT intends to have its final and complete accounting of
all costs incurred in connection with the work performed hereunder within three hundred sixty (360)
days. All project cost records and accounts shall be subject to audit by a representative of the UAO
.
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4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
Form No. 710-010-22
UTILITIES
10/04
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 Jess than the total deposits to date, a refund of the excess will be made by
the FOOT to the UAO in accordance with Section 215.422, Florida Statutes. In the event said final
accounting of total project costs is greater than the total deposits to date, the UAO will pay the
additional amount within forty (40) calendar days from the date of the invoice. The UAO agrees to
pay interest at a rate as established pursuant to Section 55.03, Florida Statutes, on any invoice not
paid within the time specified in the preceding sentence until the invoice is paid.
4.
Claims Against UAO
a. The UAO shall be responsible for all costs incurred as a result of any delay to the FOOT or its
contractors caused by errors or omissions in the Plans Package (including inaccurate location of the
Facilities) or by failure of the UAO to properly perform its obligations under this Agreement in a timely
manner.
b. ' In the event the FOOT's contractor provides a notice of intent to make a claim against the FOOT
relating to the Utility Work, the FOOT will notify the UAO of the notice of intent and the UAO will
thereafter keep and maintain daily field reports and all other records relating to the intended claim.
c. In the event the FOOT's contractor makes any claim against the FOOT relating to the Utility Work,
the FOOT will notify the UAO of the claim and the UAO will cooperate with the FOOT in analyzing and
resolving the claim within a reasonable time. Any resolution of any portion of the claim directly
between the UAO and the FOOT's contractor shall be in writing, shall be subject to written FOOT
concurrence and shall specify the extent to which it resolves the claim against the FOOT.
d.
The FOOT may withhold payment of surplus funds to the UAO until final resolution (including any
actual payment required) of all claims relating to the Utility Work. The right to withhold shall be limited
to actual claim payments made by the FOOT to the FOOT's contractor.
5. Out of Service Facilities
No Facilities shall be placed out of service unless specifically identified as such in the Plans. The following
terms and conditions shall apply to Facilities placed Out-of-Service:
a. The UAO acknowledges its present and continuing ownership of and responsibility for out of service
Facilities.
b. The FOOT agrees to allow the UAO to leave the Facilities within the right of way subject to the
continuing satisfactory performance of the conditions of this Agreement by the UAO. In the event of a
breach of this Agreement by the UAO, the Facilities shall be removed upon demand from the FOOT
in accordance with the provisions of Subparagraph e. below.
c. The UAO shall take such steps to secure the Facilities and otherwise make the Facilities safe in
accordance with any and all applicable 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 FOOT or other permittees using or seeking use of the right of
way.
e.
The UAO shall remove the Facilities at the request of the FOOT in the event that the FOOT
determines that removal is necessary for FOOT use of the right of way or in the event that the FOOT
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4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
Form No. 710-010-22
UTILITIES
10104
determines that use of the right of way is needed for other active utilities that cannot be otherwise
accommodated in the right of way. Removal shall be at the sole cost and expense of the UAO and
without any right of the UAO to object or make any claim of any nature whatsoever with regard
thereto. Removal shall be completed within the time specified in the FOOT's notice to remove. In the
event that the UAO fails to perform the removal properly within the specified time, the FOOT may
proceed to perform the removal at the UAO's expense pursuant to the provisions of Sections 337.403
and 337.404, Florida Statutes.
.
f. Except as otherwise provided in Subparagraph e. above, the UAO agrees that the Facilities shall
forever remain the legal and financial responsibility of the UAO. The UAO shall reimburse the FOOT
for any and all costs of any nature whatsoever resulting from the presence of the Facilities within the
right of way. Said costs shall include, but shall not be limited to, charges or expenses which may
result from the future need to remove the Facilities or from the presence of any hazardous substance
or material in or discharging from the Facilities. Nothing in this paragraph shall be interpreted to
require the UAO to indemnify the FOOT for the FOOT's own negligence; however, it is the intent that
all other costs and expenses of any nature be the responsibility of the UAO.
6. Oefault
a. In the event that the UAO breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in this Agreement, the FOOT may exercise one or more of
the following options, provided that at no time shall the FOOT be entitled to receive double recovery of
damages:
(1)
Terminate this Agreement if the breach is material and has not been cured within sixty (60)
days from written notice thereof from FOOT.
Pursue a claim for damages suffered by the FOOT.
.
(2)
(3) If the Utility Work is reimbursable under this Agreement, withhold reimbursement payments
until the breach is cured. The right to withhold shall be limited to actual claim payments
made by FOOT to third parties.
(4) If the Utility Work is reimbursable under this Agreement, offset any damages suffered by the
FOOT or the public against payments due under this Agreement for the same Project. The
right to offset shall be limited to actual claim payments made by FOOT to third parties.
(5) Suspend the issuance of further permits to the UAO for the placement of Facilities on FOOT
property if the breach is material and has not been cured within sixty (60) days from written
notice thereof from FOOT.
(6) Pursue any other remedies legally available.
(7) Perform any work with its own forces or through contractors and seek repayment for the cost
thereof under Section 337.403(3), Florida Statutes.
b. In the event that the FOOT breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in the Agreement, the UAO may exercise one or more of
the following options:
(1) Terminate this Agreement if the breach is material and has not been cured within sixty (60)
days from written notice thereof from the UAO.
(2)
If the breach is a failure to pay an invoice for Utility Work which is reimbursable under this
Agreement, pursue any statutory remedies that the UAO may have for failure to pay invoices.
.
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4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
Form No. 71 ()..Ol ()"22
lTTlLITIES
10/04
(3) Pursue any other remedies legally available.
c. Termination of this Agreement shall not relieve either party from any obligations it has pursuant to other
agreements between the parties nor from any statutory obligations that either party may have with regard
to the subject matter hereof.
7. Force Majeure
Neither the UAO nor the FOOT shall be liable to the other for any failure to perform under this Agreement to
the extent such performance is prevented by an act of God, war, riots, natural catastrophe, or other event
beyond the control of the non-performing party and which could not have been avoided or overcome by the
exercise of due diligence; provided that the party claiming the excuse from performance has (a) promptly
notified the other party of the occurrence and its estimate duration. (b) promptly remedied or mitigated the
effect of the occurrence to the extent possible. and (c) resumed performance as soon as possible.
8. Indemnification
FOR GOVERNMENT-OWNEO UTILITIES,
To the extent provided by law. the UAO shall indemnify, defend, and hold harmless the FOOT and all of its
officers, agents, and employees from any claim, loss. damage. cost, charge, or expense arising out of any
acts, action, error, neglect, or omission by the UAO. its agents, employees, or contractors during the
performance of the Agreement, whether direct or indirect, aRd whether to any person or property to which
FOOT or said parties may be subject. except that neither the UAO, its agents, employees, or contractors will
. be liable under this section for damages arising out of the injury or damage to persons or property directly
caused by or resulting from the negligence of the FOOT or any of its officers, agents, or employees during the
performance of this Agreement.
When the FOOT receives a notice of claim for damages that may have been caused by the UAO in the
performance of services required under this Agreement, the FOOT will immediately forward the claim to the
UAO. The UAO and the FOOT will evaluate the claim and report their findings to each other within fourteen
(14) working days and will jointly discuss options in defending the claim. After reviewing the claim, the FOOT
will determine whether to require the participation of the UAO in the defense of the claim or to require the UAO
to defend the FOOT in such claim as described in this section. The FOOT's failure to notify the UAO of a
claim shall not release the UAO from any of the requirements of this section. The FOOT and the UAO will pay
their own costs for the evaluation. settlement negotiations, and trial, if any. However, if only one party
participates in the defense of the claim at trial, that party is responsible for all costs.
FOR NON-GOVERNMENT-OWNEO UTILITIES,
The UAO shall indemnify, defend, and hold harmless the FOOT and all of its officers. agents. and employees
from any claim, loss, damage, cost. charge. or expense arising out of any acts. action, error, neglect, or
omission by the UAO, its agents, employees, or contractors during the performance of the Agreement,
whether direct or indirect, and whether to any person or property to which FOOT or said parties may be
subject. except that neither the UAO, its agents, employees. or contractors will be liable under this section for
damages arising out of the injury or damage to persons or property directly caused by or resulting from the
negligence of the FOOT or any of its officers, agents, or employees during the performance of this Agreement.
The UAO's obligation to indemnify, defend, and pay for the defense or at the FOOT's option. to participate
and associate with the FOOT in the defense and trial of any damage claim or suit and any related settlement
negotiations. shall arise within fourteen (14) days of receipt by the UAO of the FOOT's notice of claim for
indemnification to the UAO. The notice of claim for indemnification shall be served by certified mail. The
UAO's obligation to defend and indemnify within fourteen (14) days of such notice shall not be excused
because of the UAO's inability to evaluate liability or because the UAO evaluates liability and determines the
Packet Page -919-
4/26/2011 Item 16.C.2.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
Form No. 710-010-22
UTILITIES
10104
UAO is not liable or determines the FOOT is solely negligent. Only a final adjudication of judgment finding the
FOOT solely negligent shall excuse performance of this provision by the UAO. The UAO shall pay all costs
and fees related to this obligation and its enforcement by the FOOT. The FOOT's delay in notifying the UAO
of a claim shall not release UAO of the above duty to defend.
.
9. Miscellaneous
a. Time is of essence in the performance of all obligations under this Agreement.
b. The Facilities shall at all times remain the property of and be properly protected and maintained by
the UAO in accordance with the current Utility Accommodation Manual in effect atthe time the Plans
Package is prepared and the current utility permit for the Facilities; provided, however, that the UAO
shall not be obligated to protect or maintain any of the Facilities to the extent the FOOT's contractor
has that obligation as part of the Utility Work pursuant to the FOOT's specifications.
c. The FOOT may unilaterally cancel this Agreement for refusal by the UAO to allow public access to all
documents, papers. letters, or other material subject to the provisions of Chapter 119, Florida
Statutes, and made or received by the UAO in conjunction with this Agreement.
d. This Agreement constitutes the complete and final expression of the parties with respect to the
subject matter hereof and supersedes all prior agreements, understandings, or negotiations with
respect thereto, except that the parties understand and agree that the FOOT has manuals and written
policies and procedures which may be applicable at the time of the Project and the relocation of the
Facilities.
e.
This Agreement shall be govemed by the laws of the State of Florida. Any provision hereof found to
be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining
portions hereof.
.
f. All notices required pursuant to the terms hereof may be sent by first class United States Mail,
facsimile transmission, hand delivery, or express mail and shall be deemed to have been received by
the end of five business days from the proper sending thereof unless proof of prior actual receipt is
provided. The UAO shall have a continuing obligation to notify each District of the FOOT of the
appropriate persons for notices to be sent pursuant to this Agreement. Unless otherwise notified in
writing, notices shall be sent to the following addresses:
If to the UAO:
Nathan Beals, Project Manager
Collier County, Public Utilities Division
3339 E. Tamiami Trail, Suite 303, Naples, FL 33112
If to the FOOT:
Raymond Mercer, Utility Project Manager, FOOT District 1 Utilities Office
801 N. Broadway Ave., MS 1-11
Bartow, FL 33830
10. Certification
This document is a printout of an FOOT form maintained in an electronic format and all revisions thereto by
the UAO in the form of additions, deletions, or substitutions are reflected only in an Appendix entitled Changes
To Form Document and no change is made in the text of the document itself. Hand notations on affected
portions of this document may refer to changes reflected in the above-named Appendix but are for reference
purposes only and do not change the terms of the document. By signing this document, the UAO hereby .
represents that no change has been made to the text of this document except through the terms of the
appendix entitled Changes to Form Document.
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.
.
4/26/2011 Item 16.C.2.
UTILITIES
10/04
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written.
UTILITY: Collier County Water-5ewer District
BY: (Sh:mature)
DATE:
(Typed Name: Fred W. Coyle)
(Typed Title: Chairman Collier Board of County Commissioners, As Ex-Officio the
Governing,Board of the Collier County Water-Sewer District
Recommend Approval by the District Utility Office
BY: . {Sh::mature)
DATE: .
FDOT Legal review
BY: (Si!:mature)
DATE:
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
BY: (Si!:mature)
DATE:
(Typed Name: _)
(Typed Title:
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY:
DATE:
(Typed Name: _)
(Typed Title: _)
Approved as to form & legal sufflclenoy
ATTEST,
-~WiGB'i' E. BROmt CLElim
~u~~ .
Assis nt County Attorney
S-~v0~"FL<L.. e.~\\ ~
BY:
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