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Backup Documents 05/26/2009 Item #16B 2 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO 16 8 2 THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE " Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Otnce. The completed routing slip and original documents are to be forwarded to the Board Office only after the Board has taken action on the item.) ROUTING SLIP Complete routing lines # 1 through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the exceotion of 1he Chairman's silmature, draw a line 1hrough routing lines # 1 through #4, complete the checklist, and forward to Sue Filson line # 5). Route to Addressee(s) Office Initials Date (lAst in routing order) 1. 2. 3. 4. 5. Ian Mitchell, Executive Manager Board of County Commissioners 6. Minutes and Records Clerk of Court's Office PRIMARY CONTACT INFORMATION (The primary contact is the holder of1he original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive summary. Primary con1act information is needed in the event one of1he addressees above, inchrJing Sue Filson, need to cmtact staff for additional or missing information. All original documents needing 1he BCC Chairman's signature are to be delivered to the Bce office only after the BCC has acted to approve the item. Name of Primary Staff Michael Greene Contact Agenda Date Item was 05-26-09 A roved b the BCC Type of Docwnent Attached Phone Number Agenda Item Nwnber Resolution & Agreements Number of Original Documents Attached 252-5849 16B 2 5 Yes (Initial) N/A (Not A licable) gJq - { ( 1. INSTRUCTIONS & CHECKLIST Initial the Yes column or mark "N/ A" in the Not Applicable column, whichever is a ro riate. Original docwnent has been signed/initialed for legal sufficiency. (All docwnents to be signed by the Chairman, with the exception of most letters, must be reviewed and signed by the Office of the County Attorney. This includes signature pages from ordinances, resolutions, etc, signed by the County Attorney's Office and signature pages from contracts, agreements, etc. that have been fully executed by all parties except the BCC Chairman and Clerk to the Board and ossibl State Officials.) All handwritten strike-through and revisions have been initialed by the County Attorney's Office and all other arties exce t the BCC Chainnan and the Clerk to the Board The Chairman's signature line date has been entered as the date ofBCC approval of the document or the final ne otiated contract date whichever is a licable. "Sign here" tabs are placed on the appropriate pages indicating where the Chainnan's si ature and initials are re uired. In most cases (some contracts are an exception), the original document and this routing slip should be provided to Sue Filson in the BCC office within 24 hours of BCC approval. Some docwnents are time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions are nullified. Be aware of our deadlines! The document was approved by the BCC on 05-26-09 (enter date) and all changes made during the meeting have been incorporated in the attached document. The Coun Attorne's Office has reviewed the chan es, if a licable. I: Forms/ County Forms/ Bec Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05 2. 3. 4. 5. 6. 1682 I MEMORANDUM Date: March 29, 2009 To: Michael Greene, Planning Manager Planning Department From: Teresa Polaski, Deputy Clerk Minutes & Records Department Re: Resolution 2009-129, Second Amendment and Agreements for 1-75 @ Immokalee Overpass Interchange Improvements Enclosed please find a copy of the Resolution and four (4) Original Documents as referenced above, (Agenda Item #16B2) approved by the Board of County Commissioners on Tuesday, May 26, 2009. Please return a fully executed orieinal to the Minutes and Records Department for the Board's Official Record. If you should have any questions, please contact me at 252-8411. Thank you. Enclosures 1682 RESOLUTION 2009- 1 29 A RESOLUTION OF THE BOARD OF COUNTY COMMISIONERS OF COLLIER COUNTY, FLORIDA MEMORIALIZING THE BOARD'S APPROVAL OF TWO SEPARATE MEMORANDUMS OF AGREEMENT, A LOCALLY FUNDED AGREEMENT, AND A SECOND AMENDMENT TO LOCALLY FUNDED LUMP SUM AGREEMENT BETWEEN THE STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, AND COLLIER COUNTY PERTAINING TO THE DIVISION OF RESPONSIBILITIES, EXPECT A TIONS, AND FUNDING OF THE PROPOSED IMPROVEMENTS TO IMMOKALEE ROAD ASSOCIATED WITH THE 1-75 (SR 93) DESIGN-BUILD PROJECT INCLUDING BUT NOT LIMITED TO UTILITY RELOCATION, INSTALLATION OF INTELLIGENT TRAFFIC SYSTEM, AND CAPACITY IMPROVEMENTS ON IMMOKALEE ROAD ALLOWING FOR AN EIGHT LANE SECTION FROM STRAND BOULEVARD EAST THROUGH THE INTERCHANGE AT T ARPON BAY BOULEV ARD. WHEREAS, at the May 26, 2009, meeting of the Board of County Commissioners the Board approved the following: (1) a Memorandum of Agreement between the State of Florida Department of Transportation ("FDOT") and Collier County to establish an interest bearing escrow account to deposit advance funds in the amount of $352,746.00 for the cost to relocate utilities pertaining to the proposed improvements to Immokalee Road associated with the 1-75 (SR 93) design-build finance project (the "Road Project") from Golden Gate Parkway to South of Colonial Boulevard under FM # 420655-1-56-04, (2) a Memorandum of Agreement between FDOT and Collier County to establish an interest bearing escrow account to deposit advance funds in the amount of $117,254.00 for the cost to install an Intelligent Traffic System in connection with the Road Project (FM # 420655-1-52-06), (3) a Locally Funded Agreement between FDOT and Collier County pertaining to utility relocation on the Road Project (FM #420655-1-56-04), and (4) a Second Amendment to Locally Funded Lump Sum Agreement between FDOT and Collier County For 1-75 at Immokalee Overpass Interchange Improvement pertaining to the installation of lines and facilities for an Intelligent Traffic System (FM # 420655-1-52-01 / FM # 420655-1-52-06) (collectively, the "Agreements"), and authorized the Board of County Commissioners, through its Chairman, to enter into those Agreements with the Florida Department of Transportation; and WHEREAS, the Florida Department of Transportation requires the Board provide a resolution memorializing and confirming the Board's aforementioned affirmative vote to approve those Agreements and authorize its Chairman to execute those Agreements; 1682 NOW, THEREFORE, BE IT RESOL VED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: On May 26, 2009, the Board of County Commissioners approved by majority vote the aforementioned Agreements relating to the Road Project and authorized its chairman, Donna Fiala, to enter into those Agreements with FDOT. A certified copy of this Resolution will be forwarded by the Collier County Clerk to FDOT along with the executed Agreements. This Resolution is hereby adopted after motion, second, and majority vote this 26th day of May 2009. .), ~ EJ?'~, ATTEST: ~ :. . ......, @.,.. DWIGHt;E:;B;ROCK,'G!-ERK W~~~ tao" j !-~. .IUy_....... I. S QA'fiwr.. 0It I . ~ BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA f& I ByX ~~, - D A FIALA, ~~ ~L R. Teach, Deputy County Attorney 2 1682 FM # 42065515201 SECOND AMENDMENT TO LOCALLY FUNDED LUMP SUM AGREEMENT BETWEEN THE STATE OF FLORIDA DEPARTMENT OF TRANSPORT A TION AND COLLIER COUNTY FOR 1-75 @ IMMOKALEE OVERPASS INTERCHANGE IMPROVMENT When signed by COLLIER COUNTY and the State of Florida Department of Transportation in the places provided below, the following shall constitute the Second Amendment: to the LOCALL Y FUNDED LUMP SUM AGREEMENT BETWEEN THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AND COLLIER COUNTY FOR 1-75 @ IMMOKALEE OVERPASS fNTERCHANGE IMPROVEMENT for FM # 420655 ] 52 0] (hereinafter, "AGREEMENT") dated March 20, 2007, as amended by a First Amendment dated March 20, 2007, as in force immediately prior to the execution of this Second Amendment. A. All expressions used herein, unless herein separately defined, shall have the same meaning herein as in the Agreement. B. Except as expressly or by necessary implication modified hereby, all provisions of the Agreement shall remain in full force and effect in accordance with their terms but in the event of any inconsistency(ies) between the provisions of the AGREEMENT and the provisions hereof, the latter shall prevail. C. The following WHEREAS clause 3 is added after WHEAREAS clause 2.d. in the AGREEMENT as amended by the First Amendment: 3. WHEREAS, the DEPARTMENT has agreed to add to the PROJECT the installation of lines and facilities for an Intelligent Traffic System (ITS), and the COUNTY has agreed to provide a lump sum for the ITS installation; and D. The following is added as clause l.h. to the original AGREEMENT, as amended by the first agreement: h. The COUNTY, upon execution of the Second Amendment, shall provide a non- refundable lump sum payment to the DEPARTMENT in the amount of ONE HUNDRED AND SEVENTEEN THOUSAND TWO HUNDRED AND FIFTY-FOUR DOLLARS ($117, 254.00) under FM# 420655-1-52-06 as full payment for the cost of the ITS installation. Rest of this page intentionally left blank. ACKNOWLEDGED AND AGREED TO: 1682 FM # 420655 1 52 01 2ND AMENDMENT TO LFA W/COLLlER COUNTY PAGE20F2 COLLIERCOUNTY, FLORIDA /(J ! I : '-.,...,....,...,."c",..., ~., :~~"... :r~):7~~."ik&.'..'" ~. ~C ~. , ' ':-S'J ' C~~. ,i\ ; .'~ . (SEAL) ~cl"nf~ ,- '~.,:,:J ~',', .., . :1'.;/,]1.... .'., MIo..~ t. DATE -.tU'lt ,:"', to .....- ,'~atwrt Of'1. ,j~ TITLE: Donna Fiala, Chairman, Collier County Board of Commissioners 1)0("\('\0.. ~\O..\a.. PRINT NAME: Donna Fiala s- \ :llc .}p ~ DA E COLLIER COUNTY ATTORNEY LEGAL REVIEW: /J ) BY: ~:;; ~l., :).f)~1 DATE ATTEST STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION .. . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. .. .. .. .. .. .. .. .. EXECUTIVE SECRETARY (SEAL) PRINT NAME DATE BY: :;:~::::::: .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. " .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. DISTRICT SECRETARY OR DESIGNEE DISTRICT ONE PRINT NAME DATE FLA. DEPT. OF TRANS. LEGAL REVIEW: BY: DATE 16.82 FM# 420655-1-56-04 LOCALLY FUNDED AGREEMENT BETWEEN THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AND COLLIER COUNTY FOR 1-75 @ IMMOKALEE OVERPASS INTERCHANGE IMPROVMENT This is an Agreement ("Agreement") between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (hereinafter, the "DEPARTMENT") and COLLIER COUNTY (hereinafter, the "COUNTY"), for the COUNTY to provide funds to the DEP ARMENT for Immokalee Road utility relocations. WITNESSETH I. WHEREAS, the COUNTY desires to have the DEP AR TMENT include Immokalee Road utility relocations (hereinafter, the "PROJECT"); and 2. WHEREAS, the PROJECT is presently in the DEPARTMENT'S Five Year Work Program scheduled for fiscal year 2008/2009; and 3. WHEREAS, the DEPARTMENT is willing to include Immokalee Road utility relocations of FP&L, Embarq, Comcast, Qwest, At&T in connection with the DEPARTMENT'S project identified as FM # 420655-1-56-04 (the "FDOT PROJECT"). The COUNTY is willing to provide the required funds for the PROJECT in accordance with Fla. Stat. ~339.12(3); and 4. WHEREAS, the COUNTY, by Resolution dated the 26th day of May, 2009, a copy of which is attached hereto and made a part hereof, has authorized the Chairman of its Board of Commissioners or designee to enter into this Agreement. NOW THEREFORE, in consideration of the mutual benefits to be derived from joint participation in this Agreement, the parties agree as follows: I. The COUNTY agrees that it will, upon execution of this Agreement, furnish the Department an advance deposit in the amount of THREE HUNDRED FIFTY TWO THOUSAND SEVEN HUNDRED FORTY-SIX DOLLARS ($352,746.00) for full payment of the estimated PROJECT cost for Locally Funded project #426055-1-56-04. The advanced deposit shall be the total estimated PROJECT cost plus allowances. 2. The COUNTY shall deposit the above amount in an interest bearing account with the Department of Financial Services, Division of Treasury, in the name of the Florida Department of Transportation and in accordance with the terms and conditions of the Memorandum of Agreement executed by the DEPARTMENT, the COUNTY and the Department of Financial Services, which is incorporated by reference into this Agreement. All deposits shall be made payable to the Department of Financial Services, Revenue Processing and mailed to the Florida Department of Transportation: I'B2 FM# 420655-1-56-04 COLLIER COUNTY Page 20(5 2. All deposits shall be made to the Florida Department of Transportation and mailed as follows: Florida Department of Transportation Office of the Comptroller A TTN: LF A Section 605 Suwannee Street Mail Station 42B Tallahassee, FL 32399 A copy shall be sent to: Karen Miracola, District One District One LF A /JP A Coordinator Florida Department of Transportation P.O. Box 1030 Fort Myers, Florida 33902-1030 3. Failure of the COUNTY to deposit said amount within the time frame specified above shall be grounds for termination of this Agreement. 4. If the accepted bid amount plus allowance is in excess of the advance deposit amount, the COUNTY will provide an additional deposit within 14 (fourteen) calendar days of notification from the DEPARTMENT or prior to posting of the accepted bid, whichever is earlier, so that the total deposit is equal to the bid amount plus allowances. The DEPARTMENT will notify the COUNTY as soon as it becomes apparent the accepted bid amount plus allowances is in excess of the advance deposit amount; however, failure of the DEPARTMENT to so notify the COUNTY shall not relieve the COUNTY from its obligation to pay for its full participation on final accounting as provided herein below. If the COUNTY cannot provide the additional deposit within 14 (fourteen) days, a letter must be submitted to and approved by the DEPARTMENT's PROJECT manager indicating when the deposit will be made. The COUNTY understands the request and approval of the additional time could delay the PROJECT, and additional costs may be incurred due to a delay of the PROJECT. 5. If the accepted bid amount plus allowances is less than the advance deposit amount, the DEPARTMENT will refund the amount that the advance deposit exceeds the bid amount plus allowances if such refund is requested by the COUNTY in writing. 6. Should PROJECT modifications or changes to bid items occur that increase the COUNTY's share of total PROJECT costs, the COUNTY will be notified by the DEPARTMENT accordingly. The COUNTY agrees to provide, without delay, in advance of the additional work being performed, adequate funds to ensure that cash on deposit with the DEPARTMENT is sufficient to fully fund its share of the PROJECT. The DEPARTMENT shall notify the COUNTY as soon as it becomes apparent the actual costs will overrun the award amount; however, failure of the DEPARTMENT to so notify the COUNTY shall not relieve the COUNTY from its obligation to pay for its full participation during the PROJECT and on final accounting as provided herein below. Funds due from the COUNTY during the PROJECT not paid within 40 (forty) calendar days from the date of the invoice are subject to an interest charge at a rate established pursuant to Fla. Stat. ~55.03. 1682 FM# 420655-1-56-04 COLLIER COUNTY Page 3 of 5 7. The DEPARTMENT intends to have its final and complete accounting of all costs incurred in connection with the work performed hereunder within three hundred and sixty days (360) of fmal payment to the Contractor. The DEPARTMENT considers the PROJECT complete when the final payment has been made to the Contractor, not when the construction work is complete. 8. All PROJECT cost records and accounts shall be subject to audit by a representative of the COUNTY/COUNTY for a period of three (3) years after final closeout ofthe PROJECT. The COUNTY will be notified of the final cost. Both parties agree that in the event the fmal accounting oftotal 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 DEPARTMENT to the COUNTY. If the final accounting is not performed within three hundred and sixty (360) days, the COUNTY is not relieved from its obligation to pay. 9. In the event the final accounting of total PROJECT costs is greater than the total deposits to date, the COUNTY will pay the additional amount within forty (40) calendar days from the date of the invoice from the DEPARTMENT. The COUNTY agrees to pay interest at a rate as established pursuant to Fla. Stat. ~55.03, on any invoice not paid within forty (40) calendar days until the invoice is paid. 10. The DEPARTMENT agrees to provide PROJECT schedule progress reports to the COUNTY in the standard format used by the DEPARTMENT and at intervals established by the DEPARTMENT. The COUNTY will be entitled at all times to be advised, at its request, as to the status of work being done by the DEPARTMENT and of the details thereof. Either party to the Agreement may request and be granted a conference. 11. All tracings, plans, specifications, maps and/or reports prepared or obtained under this Agreement shall be considered works made for hire and shall become the property of the DEPARTMENT without restriction or limitation on their use. 12. The DEPARTMENT shall not be obligated or liable hereunder to any party other than the COUNTY. 13. In no event shall the making by the DEPARTMENT of any payment to the COUNTY constitute or be construed as a waiver by the DEPARTMENT of any breach of covenant or any default which may then exist, on the part of the COUNTY, and the making of such payment by the DEPARTMENT while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to the DEPARTMENT with respect to such breach or default. 14. Unless otherwise specifically stated herein, this Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 15. If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having the jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect provided that the part of this Agreement thus invalidated or declared unenforceable is not material to the intended operation of this Agreement. 1682 FM# 420655-1-56-04 COLLIER COUNTY Page 4 of5 16. The parties recognize and accept the funding restrictions set forth in Fla. Stat. ~339.135(6)(a), which may affect each of the parties' obligations: The Department during any fiscal year shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The Department shall require a statement from the Comptroller of the Department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding one (1) year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years. Section 339. 135(6)(a), Florida Statutes. Accordingly, the State of Florida's performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Legislature. 17. When either party receives a notice of claim for damages that may have been caused by the other party in the performance of services required under this Agreement, that party will immediately forward the claim to the other party. Each party will evaluate the claim and report its findings to each other within fourteen (14) working days and will jointly discuss options in defending the claim. 18. This document incorporates and includes all prior negotiations, correspondence, conversations, agreements, or understandings applicable to the matters contained herein, and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed by both parties. 19. This Agreement shall continue in effect and be binding on the parties until the PROJECT is completed, final costs are known and legislatively appropriated reimbursements, if approved, are made by the DEPARTMENT. 20. All notices under this Agreement shall be directed to the following: TO DEPARTMENT: TO COUNTY: Bill Jones, Project Manager Michael Greene, Planning Manager Florida Department of Transportation Collier County Transportation Services P.O. Box 1249 2885 Horseshoe Drive South Bartow, FL 33831-1249 Naples, FL 34104 1682 FM# 420655-1-56-04 COLLIER COUNTY Page 5 of5 IN WITNESS WHEREOF, COLLIER COUNTY has caused this Agreement to be executed in its behalf, by its Chairman, as authorized by Resolution Number , and the FLORIDA DEPARTMENT OF TRANSPORTATION has caused this Agreementto be executed in its behalf through its District Secretary or authorized designee: COLLIER COUNTY, FLORIDA ~~c $~ I _ ~~. (Seal) Donna Fiala, Chairman CHAIRMAN OR DESIGNEE , Date Print Name: Donna Fiala, 5' \ ')o,lP<"\ I D By: Date STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION ATTEST By: . .. .. . . .. .. .. .. .. .. ..................... .. .. .. .. .. .. .. .. .. .. DISTRICT SECRETARY OR DESIGNEE::::::'::::::::::::: DISTRICT ONE ::~~;~:~::;~::: .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .:~t~.:::.:::::::::: EXECUTrvESECRETARY (Seal) Print Name Date Print Name Fla. Dept. of Trans. Legal Review: By: Date 1682 MEMORANDUM OF AGREEMENT THIS AGREEMENT, made and entered into this ~: day of 'm~ 2009, by and between the State of Florida, Department of Transportation, hereinafter referr to as "FOOT" and the State of Florida, Department of Financial Services, Division of Treasury, hereinafter referred to as "Treasury" and the Collier County Board of County Commissioners, Collier County, Florida, hereinafter referred to as the "Participant." WITNESSETH WHEREAS, "FDOT" is currently constructing the following project: Main Financial Project No.: 420655-1-52-06 Intelligent Traffic System (ITS) installation County: Collier hereinafter referred to as the "Project". WHEREAS, FDOT and the Participant entered into a Locally Funded Agreement and First Amendment dated March 20, 2007 (FM #420655-1-52-1), as amended by the Second Amendment to Locally Funded Agreement dated May 26, 2009, wherein FDOT agreed to perform certain work on behalf of the Participant in conjunction with the Project. WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in the best interest of the FDOT and the Participant to establish an interest bearing escrow account to provide funds for the work performed on the Project on behalf of the Participant by the FDOT. NOW THEREFORE, in consideration of the premises and the covenants contained herein, the parties agree to the following: 1. An advance deposit in the amount of ONE HUNDRED AND SEVENTEEN THOUSAND TWO HUNDRED AND FIFTY -FOUR DOLLARS ($117,254.00) will be made by the Participant into an interest bearing escrow account established by the Department for the purposes of the project. Said escrow account will be opened with the Department of Financial Services, Division of Treasury, Bureau of Collateral Management on behalf of the FDOT upon receipt ofthis Memorandum of Agreement. Such account will be an asset ofFDOT. 2. Other deposits will be made only by the Participant as necessary to cover the cost of additional work prior to the execution of any Supplemental Agreements or Amendments. 3. All deposits shall be made payable to the Department of Financial Services, Revenue Processing and mailed to the FOOT OOC-GAO for appropriate processing at the following address: Florida Department of Transportation OOC-GAO, LF A Section 605 Suwannee Street, MS 42B Tallahassee, Florida 32399 16B2 350-020-300-i Page 2 of 2 4. The FDOT's Comptroller or designee shall be the sole signatories on the escrow account with the Department of Financial Services and shall have sole authority to authorize withdrawals from said account. 5. Unless instructed othetwise 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 LF A. 6. The Department of Financial Services agrees to provide written confirmation of receipt of funds to the FDOT. 7. the FDOT. The Department of Financial Services further agrees to provide periodic reports '~G:.:.:.:.:.:.:.:. . . . . .. . .. .. . . . .. . .. . .. .. . .. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION COMPTROLLER ':'\'" De \~u>~:~ .. .. . .. . . .. . . I . . . . .. . . .. . . . . .. . .. .. .. .. . . .. . . .. .. . .. . . . . . . . . .. .. .. .. . .. .. .. .. .. .. .. .. .. .. STATE OF FLORIDA DEPARTMENT OF FINANCIAL SER CES, DIVISION OF TREASURY ~~d~ Donna Fiala, Chairman PARTICIPANT SIGNA TORE PARTICIPANT NAME & TITLE: Donna Fiala, Chairman, Collier County Board of Commissioners PARTICIPANT ADDRESS: Collier County Government Center 3301 Tarniami Trail, East Naples, Florida 34112 FEDERAL EMPLOYER LD. NUMBER 1682 MEMORANDUM OF AGREEMENT THIS AGREEMENT, made and entered into this ~ day of~, 2009, by and between the State of Florida, Department of Transportation, hereinafter referrei to as "FDOT" and the State of Florida, Department of Financial Services, Division of Treasury, hereinafter referred to as "Treasury" and the Collier County Board of County Commissioners, Collier County, Florida, hereinafter referred to as the "Participant." WITNESSETH WHEREAS, "FDOT" is currently constructing the following project: Main Financial Project No.: 420655-1-56-04 Utility relocations County: Collier hereinafter referred to as the "Project". WHEREAS, FDOT and the Participant entered into a Locally Funded Agreement dated \l\o.... :1~ Jtxf\. wherein FDOT agreed to perform certain work on behalf of the Participant in conj~ction with the Project. WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in the best interest of the FDOT and the Participant to establish an interest bearing escrow account to provide funds for the work performed on the Project on behalf of the Participant by the FDOT. NOW THEREFORE, in consideration of the premises and the covenants contained herein, the parties agree to the following: 1. An advance deposit in the amount of THREE HUNDRED FIFTY TWO . THOUSAND SEVEN HUNDRED FORTY-SIX DOLLARS ($352,746.00) will be made by the Participant into an interest bearing escrow account established by the Department for the purposes of the project. Said escrow account will be opened with the Department of Financial Services, Division of Treasury, Bureau of Collateral Management on behalf of the FDOT upon receipt of this Memorandum of Agreement. Such account will be an asset ofFDOT. 2. Other deposits will be made only by the Participant as necessary to cover the cost of additional work prior to the execution of any Supplemental Agreements or Amendments. 3. All deposits 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 OOC-GAO, LF A Section 605 Suwannee Street, MS 42B Tallahassee, Florida 32399 1682 350-020-300-i Page 2 of 2 4. The FDOT's Comptroller or designee shall be the sole signatories on the escrow account with the Department of Financial Services 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 defmed in the LF A. 6. The Department of Financial Services agrees to provide written confirmation of receipt of funds to the FDOT. The Department of Financial Services further agrees to provide periodic reports .(e: . . . . . . . . . . . . . ' ::~?Y!: I. ...... ;;;;;;::;;;;;;;;;;~ 7. the FDOT. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION COMPTROLLER " Ilr li4 . ,.~':' :' ~ ,:.~Qo , STATE OF FLORIDA DEPARTMENT OF FINANCIAL ~ICES' DIVISIO~ OF TREASURY f ~' c:t.~, D nna Fiala, Chairman PARTICIPANT SIGNATURE PARTICIPANT NAME & TITLE: Donna Fiala, Chairman, Collier County Board of Commissioners PARTICIPANT ADDRESS: Collier County Government Center 3301 Tamiami Trail, East Naples, Florida 34112 FEDERAL EMPLOYER I.D. NUMBER ~ \-." 1682 ...; MEMORANDUM ". Date: March 29, 2009 To: Michael Greene, Planning Manager \ Planning Department , \ From: ~. Teresa Polaski, Deputy Clerk Minutes & Records Department Re: Please return a f Department for If you should have any questions, please contact me at 252-8411. Thank you. Enclosures 16iDl~ FM # 42065515201 SECOND AMENDMENT TO LOCALLY FUNDED LUMP SUM AGREEMENT BETWEEN THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AND COLLIER COUNTY FOR 1-75 @ IMMOKALEE OVERPASS INTERCHANGE IMPROVMENT When signed by COLLIER COUNTY and the State of Florida Department of Transportation in the places provided below, the following shall constitute the Second Amendment: to the LOCALL Y FUNDED LUMP SUM AGREEMENT BETWEEN THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AND COLLIER COUNTY FOR 1-75 @ IMMOKALEE OVERPASS INTERCHANGE IMPROVEMENT for FM # 420655 1 52 01 (hereinafter, "AGREEMENT") dated March 20, 2007, as amended by a First Amendment dated March 20, 2007, as in force immediately prior to the execution of this Second Amendment. A. All expressions used herein, unless herein separately defined, shall have the same meaning herein as in the Agreement. S. Except as expressly or by necessary implication modified hereby, all provisions of the Agreement shall remain in full force and effect in accordance with their terms but in the event of any inconsistency(ies) between the provisions of the AGREEMENT and the provisions hereof, the latter shall prevail. C. The following WHEREAS clause 3 is added after WHEAREAS clause 2.d. in the AGREEMENT as amended by the First Amendment: 3. WHEREAS, the DEPARTMENT has agreed to add to the PROJECT the installation of lines and facilities for an Intelligent Traffic System (ITS), and the COUNTY has agreed to provide a lump sum for the ITS installation; and D. The following is added as clause l.h. to the original AGREEMENT, as amended by the first agreement: h. The COUNTY, upon execution of the Second Amendment, shall provide a non- refundable lump sum payment to the DEPARTMENT in the amount of ONE HUNDRED AND SEVENTEEN THOUSAND TWO HUNDRED AND FIFTY-FOUR DOLLARS ($117, 254.00) under FM# 420655-1-52-06 as full payment for the cost of the ITS installation. Rest of this page intentionally left blank. NC,WL t 1!1l dUJ 10' 1682 ~'''d ~.20n55 i 51: U I: ,\ \H~"IHVIE[\II , J I i\. ','NUll !FH COIi'i! HLHLRCOUNTV Ft,~HO L;.~lU ;~(i (' LE R K C-j/ ?C{ itf) ~' "": ~"j:';;i(t ~""t,~~,^ ,1 ~' f.!',h'l\ '" ,. . , i/ ' ,I ,. c-'tt t. >~i ~(' ~~1,~ i"\ I., 'f I\I\T! ~::t::'- ",,' 'q flT!!i Donrla i' Chilirmnn. { cdi County Board of COlnndssloners -L, c, , C\ ' \ \ \ c. <~ \J.l; ~ C-,,\ PRINT !'-.]/\ 1\1 1"- L'onn:l F!!JLI f).Y I. COl ,\ ,j FR C (HI~JIY /\TT()RN!'~Y RE,Vrl.".W . '\ ."'. I 8 '. '. I . \,:~ . iL IL~ ( . . ~4-__ ~. I.EGAI ., _" . .) {./ J}, ~1 ~. (J . V I .. f)'\TF I fS :\TF ( FI ,O({J n/\ UEPiUH'!VIENT OF 'I Rl\NSPORTArION BY: !AU 1)1')! HI DfSlR ,. /1 ~j.. /. . /' I i " fA. f:>; ire: PINT NAME pI,' , 'f I tJl (({t(.~.. d ',:/i /0) .. I D,yrE I Edward J. Glm/~(,del. PRINT I\!AMr / / l,;-~~// 1;/'(.: / DATI FL<\ DEP'L OFI HANS. LEGAl REV1EW BY: 1 B. AW?mGitwarr ,!.../ -_. b0..);>).:--/ DATE "_"~"'"'""__',""''''."''''_''''__",'''c..~._."~..,_,._..""",,_~,,,_"'~""'~";*.~';i'''''''-''"';"''''''''''''''''''''''''''_''"''''""",_",_~_~__"""~_"___'_'_'_'__'_"'______.~"_'__'_ MEM[ORANDUM OF' AGREEMENT 1682 THIS AGREEMENT.. made and entered into this 1'1n:!, day of _J~ 2009, by and between the State of Florida, Depaliment of Transportation, hereinafter referred to as "FOOT" and the State of Florida, Department of Financial Services, Division of Treasury, hereinafter. referred to as "Treasury" and the Collier County Board of County Commissioners, Collier County, Florida, hereinafter referred to as the "Participant." WITNESSETH WHEREAS, "FDOT" is currently constructing the following project: Main Financial Project No.: 420655-1-56-04 Utility relocations County: Collier hereinafter referred to as the "Project". . ~HEREAS, FOOT and the Participant entered into a l,ocally Funded Agreemen.t dated ~ l ~ / 0 2' _, wherein FDOT agreed to perform certain work on behalf of the Participant in conjunction with the Project. WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in the best interest of the FDOT and the Participant to establish an interest bearing escrow account to provide funds for the vvork perfon:ned on the Project on behalf of the Participant by the FDOT. NOW THEHEFOl~-E, in consideration of the premises and the covenants contained herein, the parties agree to the following: 1. An advance deposit in the amount of THREE HUNDRED FIFTY T\VO THOUSAND SEVEN HUNDRED FORTY-SIX DOLLARS ($352,746.00) will be made by the Participant into an interest bearing escrow account established by the Department for the purposes of the project. Said escrow account will be opened with the Department of Financial Services, Division of Treasury, Bureau of Collateral Management on behalf of the FDOT upon receipt of this Memorandum of Agreement. Such account will be an asset ofFDOT. 2. Other deposits will be made only by the Participant as necessary to cover the cost of additional work prior to the execution of any Supplemental Agreements or Amendments. 3. All deposits shall Revenue Processing and mailed following address: be made payable to the Department of Financialc_Serv~;~s, to the FDOT OOC-GAO for appropriate processfjig at -(ctve n Florida Department of Transportation OOC-GAO, LFA Section 605 Suwannee Street, MS 42B Tallahassee, Florida 32399 1682 j, EjO,"O;Z O..;:(OO,.j 2 of 2. 4k The JFID{)rf's O:mlptroHer or designee shaH be the sole ~~ign.atories on the escrow aCCOulilt \\iiiith the Departrnent of Fhwl1daJ Services ~mdl shaH have sole authority to authorize vqlithdrawals frorim s,aid aecounL 5. Unless instructed. otherwise by tl1e parties hereto, all interest acclIDmlated in the escrow account shaH remain in tIle account for the purpJoses ofthe project as defined in the LF A 6. The DepartmelJt of Financial Services agrees to provide written confirmation of receipt of funds. ~o the FDOT. 7. thyY~OT. . , The Depa,rhnent of Financial, Services further agrees to provide periodic reports to ~, ~~rrC~~ STA .EO, FLORIDA ~ DEl?' ARTMENT OF TRANSPORTATION CnMPTROLLER ----' T wLli STATEO~RIDA DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF TREASURY Dvvfghl E.Broc:k9 Clierk ~ ' l \ Dorma J? iala, Chainnan PARTICIPANT SIGNATURE t"ARTICIPANT NAMfL&JJIl,E: DOlma Fiala, Chaimlan, Comer County Board of Cornrrilissioners Approvt:d W3 to forln ~IIld R~;g81li ::mfficReliK:Y:' I''ARTICIP ANT ADDRESS: Comer County Govermnent Center 3301 'Tamiami Trail, East Naples, Fliorida 34112 County Attorney fEDERAL EMPLOYER LD. NUMBER 1682 FM# 420655-1-56-04 LOCALLY FUNDED AGREEMENT BETWEEN THE STATE OF FLORIDA DEPARTMENT OF TRANSPORT A TION AND COLLIER COUNTY FOR 1-75 @ IMMOKALEE OVERPASS INTERCHANGE IMPROVMENT This is an Agreement ("Agreement") between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (hereinafter, the "DEPARTMENT') and COLLIER COUNTY (hereinafter, the "COUNTY"), for the COUNTY to provide funds to the DEPARMENT for Immokalee Road utility relocations. WITNESSETH 1. WHEREAS, the COUNTY desires to have the DEPARTMENT include Immokalee Road utility relocations (hereinafter, the "PROJECT"); and 2. WHEREAS, the PROJECT is presently in the DEPARTMENT'S Five Year Work Program scheduled for fiscal year 2008/2009; and 3. WHEREAS, the DEPARTMENT is willing to include Immokalee Road utility relocations of FP&L, Embarq, Comcast, Qwest, At&T in connection with the DEPARTMENT'S project identified as FM # 420655-1-56-04 (the "FDOT PROJECT"). The COUNTY is willing to provide the required funds for the PROJECT in accordance with Fla. Stat. ~339.12(3); and 4. WHEREAS, the COUNTY, by Resolution dated the 26th day of May, 2009, a copy of which is attached hereto and made a part hereof, has authorized the Chairman of its Board of Commissioners or designee to enter into this Agreement. NOW THEREFORE, in consideration of the mutual benefits to be derived from joint participation in this Agreement, the parties agree as follows: 1. The COUNTY agrees that it will, upon execution of this Agreement, furnish the Department an advance deposit in the amount of THREE HUNDRED FIFTY TWO THOUSAND SEVEN HUNDRED FORTY-SIX DOLLARS ($352,746.00) for full payment of the estimated PROJECT cost for Locally Funded project #426055-1-56-04. The advanced deposit shall be the total estimated PROJECT cost plus allowances. 2. The COUNTY shall deposit the above amount in an interest bearing account with the Department of Financial Services, Division of Treasury, in the name of the Florida Department of Transportation and in accordance with the terms and conditions of the Memorandum of Agreement executed by the DEPARTMENT, the COUNTY and the Department of Financial Services, which is incorporated by reference into this Agreement. All deposits shall be made payable to the Department of Financial Services, Revenue Processing and mailed to the Florida Department of Transportation: -- l~fJJ~ FM# 420655-1-56-04 COLLIER COUNTY Page 2 of5 2. All deposits shall be made to the Florida Department of Transportation and mailed as follows: Florida Department of Transportation Office of the Comptroller A TTN: LF A Section 605 Suwannee Street Mail Station 42B Tallahassee, FL 32399 A copy shall be sent to: Karen Miracola, District One District One LF A /JP A Coordinator Florida Department of Transportation P.O. Box 1030 Fort Myers, Florida 33902-1030 3. Failure ofthe COUNTY to deposit said amount within the time frame specified above shall be grounds for termination of this Agreement. 4. If the accepted bid amount plus allowance is in excess of the advance deposit amount, the COUNTY will provide an additional deposit within 14 (fourteen) calendar days of notification from the DEPARTMENT or prior to posting of the accepted bid, whichever is earlier, so that the total deposit is equal to the bid amount plus allowances. The DEPARTMENT will notify the COUNTY as soon as it becomes apparent the accepted bid amount plus allowances is in excess of the advance deposit amount; however, failure of the DEPARTMENT to so notify the COUNTY shall not relieve the COUNTY from its obligation to pay for its full participation on final accounting as provided herein below. If the COUNTY cannot provide the additional deposit within 14 (fourteen) days, a letter must be submitted to and approved by the DEPARTMENT's PROJECT manager indicating when the deposit will be made. The COUNTY understands the request and approval of the additional time could delay the PROJECT, and additional costs may be incurred due to a delay of the PROJECT. 5. If the accepted bid amount plus allowances is less than the advance deposit amount, the DEPARTMENT will refund the amount that the advance deposit exceeds the bid amount plus allowances if such refund is requested by the COUNTY in writing. 6. Should PROJECT modifications or changes to bid items occur that increase the COUNTY's share of total PROJECT costs, the COUNTY will be notified by the DEPARTMENT accordingly. The COUNTY agrees to provide, without delay, in advance of the additional work being performed, adequate funds to ensure that cash on deposit with the DEPARTMENT is sufficient to fully fund its share of the PROJECT. The DEPARTMENT shall notify the COUNTY as soon as it becomes apparent the actual costs will overrun the award amount; however, failure of the DEPARTMENT to so notify the COUNTY shall not relieve the COUNTY from its obligation to pay for its full participation during the PROJECT and on final accounting as provided herein below. Funds due from the COUNTY during the PROJECT not paid within 40 (forty) calendar days from the date of the invoice are subject to an interest charge at a rate established pursuant to Fla. Stat. ~55.03. FM# 4206SS-ls94 B 2 COLLIER COUNTY Page 3 of S 7. The DEPARTMENT intends to have its final and complete accounting of all costs incurred in connection with the work performed hereunder within three hundred and sixty days (360) of final payment to the Contractor. The DEPARTMENT considers the PROJECT complete when the final payment has been made to the Contractor, not when the construction work is complete. 8. All PROJECT cost records and accounts shall be subject to audit by a representative of the COUNTY/COUNTY for a period of three (3) years after final closeout of the PROJECT. The COUNTY 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 ofthe excess will be made by the DEPARTMENT to the COUNTY. If the final accounting is not performed within three hundred and sixty (360) days, the COUNTY is not relieved from its obligation to pay. 9. In the event the final accounting of total PROJECT costs is greater than the total deposits to date, the COUNTY will pay the additional amount within forty (40) calendar days from the date of the invoice from the DEPARTMENT. The COUNTY agrees to pay interest at a rate as established pursuant to Fla. Stat. ~55.03, on any invoice not paid within forty (40) calendar days until the invoice is paid. 10. The DEP AR TMENT agrees to provide PROJECT schedule progress reports to the COUNTY in the standard format used by the DEPARTMENT and at intervals established by the DEPARTMENT. The COUNTY will be entitled at all times to be advised, at its request, as to the status of work being done by the DEPARTMENT and of the details thereof. Either party to the Agreement may request and be granted a conference. 11. All tracings, plans, specifications, maps and/or reports prepared or obtained under this Agreement shall be considered works made for hire and shall become the property of the DEPARTMENT without restriction or limitation on their use. 12. The DEPARTMENT shall not be obligated or liable hereunder to any party other than the COUNTY. 13. In no event shall the making by the DEPARTMENT of any payment to the COUNTY constitute or be construed as a waiver by the DEP AR TMENT of any breach of covenant or any default which may then exist, on the part of the COUNTY, and the making of such payment by the DEPARTMENT while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to the DEPARTMENT with respect to such breach or default. 14. Unless otherwise specifically stated here~ this Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 15. If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having the jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect provided that the part of this Agreement thus invalidated or declared unenforceable is not material to the intended operation of this Agreement. 16B2 FM# 420655-1-56-04 COLLIER COUNTY Page 4 of5 16. The parties recognize and accept the funding restrictions set forth in Fla. Stat. ~339.135(6)(a), which may affect each of the parties' obligations: The Department during any fiscal year shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The Department shall require a statement from the Comptroller of the Department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding one (1) year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years. Section 339.13 5(6)( a), Florida Statutes. Accordingly, the State of Florida's performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Legislature. 17. When either party receives a notice of claim for damages that may have been caused by the other party in the performance of services required under this Agreement, that party will immediately forward the claim to the other party. Each party will evaluate the claim and report its findings to each other within fourteen (14) working days and will jointly discuss options in defending the claim. 18. This document incorporates and includes all prior negotiations, correspondence, conversations, agreements, or understandings applicable to the matters contained herein, and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed by both parties. 19. This Agreement shall continue in effect and be binding on the parties until the PROJECT is completed, final costs are known and legislatively appropriated reimbursements, if approved, are made by the DEPARTMENT. 20. All notices under this Agreement shall be directed to the following: TO DEPARTMENT: TO COUNTY: Bill Jones, Project Manager Michael Greene, Planning Manager Florida Department of Transportation Collier County Transportation Services P.O. Box 1249 2885 Horseshoe Drive South Bartow, FL 33831-1249 Naples, FL 34104 16B2 irVtri 4206:,",~i .5....tl4 OUtER COUNT), :5, tlf S IN WTfl'-JESS WHEREOF, ('OU J[]{ COU I,rry causecj this A.greenlcHt to be executed 1ft its behalf, by Chamnan, as cHnhol'iz.ed by R(;solution Nmnbe:r and the: FLORIDA DEI' AR'TMENT ()f T'R/tNSPORIATI0N/\.greement to be executed in its behalfthrollgh its District Secretary or authorized COLLIER COUNTY, F'LORIDA (Seal) Donna Fiala.. Chairman CHA1Rl'v1AN DESIGNEE : 'i ',A" Ii,' , ,,"L-\..~~ If Date Print -N~:rne: r)On~~~l. F~aht ~ COLLIER COUNTY Le.gal Review: . . Ii ) By: ! late STATE OF' FLORIDA DEPARTMENT OF' TRANSPORTATION ATTEST " ,~1';;1_ /~, _ _ _ r f',__ /1.: _ _ _,.J 11/',>://IU~c..~' i/Z-1;;'rb/"~( ;/.)/c~., t /1..,Ii . /., .. ~'. !/.l('lV/'t::'j!t~ r Pnnt Name i ;y /~ t(;fc'/{~ rc<:L_. c.i1C/ i . / DISTRlCT SECRETARY OR DESIGNEE DISTRICT ONE EXECUTIVE SECRET A:RY (Seal) F..rlward J .J}Qnzalez Print Name I /',- ,) ill, , / ;/ (., ;' 1./ It l' ./..... I L.: .___ ( .1' 'I - .. '-:/ r;, ., ,,;1 \c,,''-Q,,:> /1 (i'JU1 '/);Iutt, Fla. Dept. of Trl)fis. Legal Review: By:B.6ntafliG"irjvarr / ~ N p'r{tn Date 4~ 't~1 t.;; .. ~.; 'I ":liF .~~...,:,~"'. ~..'.'. ../',~ ,"Ijy , .. ..-. '.# <I 80~~lS _ < i Jot.. Jr. " iii.:...." -.10-. ..... ....... .. ,,-,". .... .. . - . .-------.-1- - , --- ---'I! ~ t i ........ w w .r: 00 m 01 C ro ..c u ?- m ...... c w i5 (.) 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