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Resolution 2007-356 RESOLUTION NO. 2007 _ 356 A RESOLUTION BY THE BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA, APPROVING, AND AUTHORIZING ITS CHAIRMAN TO EXECUTE, A COUNTY RIGHT-OF-WAY AGREEMENT FOR UNDERGROUND CONVERSIONS WITH THE FLORIDA POWER & LIGHT COMPANY PERTAINING TO THE CONVERSION OF CERTAIN OVERHEAD ELECTRIC DISTRIBUTION FACILITIES LOCATED WITHIN THE VANDERBILT BEACH BEAUTIFICATION MUNICIPAL SERVICE TAXING UNIT (the "MSTU") UNDERGROUND WHEREAS, at the December II, 2007, meeting of the Board of County Commissioners the Board approved a County Right-of-Way Agreement for Underground Conversions (the "Agreement") attached hereto as Exhibit "A," which addresses the terms and conditions agreed upon by the County, the MSTU and the Florida Power & Light Company ("FPL") in connection with the anticipated project to convert certain overhead electric distribution facilities underground, and authorized the Board of County Commissioners, through its Chairman, to enter into that agreement with FPL; and WHEREAS, the FPL requires the Board provide a resolution memorializing and confirming the Board's aforementioned affirmative vote to approve the agreement and authorization for the Chairman to execute the agreement; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that; On December II, 2007, the Board of County Commissioners approved by majority vote the Agreement and authorized its chairman, James Coletta, to execute same. A certified copy of this Resolution will be forwarded by the Collier County Clerk to FPL. THIS RESOLUTION ADOPTED after motion, second, and majority vote favoring same, this II day of December, 2007. ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLO DA J /.' " By: ---.IV A1 A lJ [..~l' {).(. . , eput Clerk Attest as 0 o-.ll"11&A S slQllaturt 001- By: COUNTY RIGHT-OF-WAY AGREEMENT FOR UNDERGROUND CONVERSIONS THIS AGREEMENT (the "Agreement") is made and entered into this lL day of l)E>cel'llh(,.. , 2007 by and between the Vanderbilt Beach Beautification Municipal Service Taxing Unit, by and through its governing body, the Board of Commissioners for Collier County, Florida (hereafter, "Vanderbilt MSTU"), the Board of Commissioners for Collier County, Florida (hereafter, "Local Government") whose mailing address is 3301 Tamiami Trail, East, Naples, Florida 34112 and Florida Power & Light Company ("FPL"), a Florida corporation with an address of P.O. Box 14000, 700 Universe Boulevard, Juno Beach, FL 33408-0429. WHEREAS, Local Government may request that FPL convert certain overhead electric distribution facilities located within and specifically limited to the following boundaries within the Vanderbilt MSTU (the "Conversion"): All of that property lying westerly of thc centerline of Vanderbilt Drive from Vanderbilt Beach Road north to the centerline of the Little Horse Pass Bridge (Collier County Bridge No. 030177); thence, westerly along the meander line of the Cocohatchee River until it meets the Gulf of Mexico. Said lands being more fully depicted on the drawing attached hereto as Exhibit "A" (collectively, the "Existing Overhead Facilities") to underground facilities, including transformers, switch cabinets and other appurtenant facilities some of which may be installed above ground (collectively, the "Underground Facilities") and has further requested that certain of the Underground Facilities be placed in certain of its road rights-of-way ("Local Government ROW") and/or certain road rights-of-way owned by or under the jurisdiction of other agencies ("Other ROW"). Local Government ROW and Other ROW may be referred to collectively as "ROW": and WHEREAS, the Vanderbilt MSTU is considering paying FPL the cost of such Conversion as required by FPL's electric tariff and Section 25-6.115 of the Florida Administrative Code and is also considering entering into a separate Underground Facilities Conversion Agreement with FPL; and WHEREAS, FPL is willing, subject to the terms and conditions set forth in this Agreement, FPL' s electlic tariff and Section 25-6.115 of the Florida Administrative Code, to place certain of the Underground Facilities in the ROW, conditioned upon the Vanderbilt MSTU entering into a separate Underground Facilities Conversion Agreement and agreeing to pay the cost of such Conversion as required by FPL's electric tariff and Section 25-6.115 of the Florida Administrati ve Code. NOW THEREFORE, in recognition of the foregoing premises and the covenants and agreements set f0l1h herein, and other consideration the sufficiency of which is hereby acknowledged, intending to be legally bound hereby, the parties covenant and agree as follows: I. The foregoing recitals are true and correct, and are hereby incorporated by reference into this Agreement. 2. Conditions Precedent to Placement of Underground Facilities in ROW (a) Local Government covenants, represents and warrants that: (i) Local Government has full legal right and authority to enter into this Agreement: (ii) Local Government has full legal right and authority to take all actions and measures necessary to fulfill Local Government's obligations under this Agreement; (iii) Local Government hereby authorizes the use of the ROW by FPL for the purposes stated herein. (b) All applicable permits for FPL to install, construct, or maintain Underground Facilities in ROW must be issued on a timely basis by the appropriate agency. (c) The design and location of the Underground Facilities to which Local Government has agreed are in compliance with all operational and safety guidelines, codes and standards, (d) Local Government agrees to provide within ninety (90) days from the date of this Agreement, at its expense, a legal description that is acceptable to FPL of the ROW to be occupied by the Underground Facilities at a time before FPL initiates the design of the Underground Facilities. Said legal description shall be made part of this Agreement and attached as Exhibit "8." (e) Within a reasonable period of time after receipt of Exhibit B from Local Government not to exceed one hundred and twenty (120) days, FPL agrees to identify and document all existing FPL underground facilities within the ROW that will not be included under this Agreement. Local Government shall reimburse FPL's reasonable costs and expenses to deliver said documentation. Said documentation shall be made part of this Agreement and attached as Exhibit "c." (f) The parties agree that the construction drawings when prepared shall be attached as Exhibit "0" to this Agreement and that the construction drawings may be amended to reflect changes to location of the facilities as required. 3. Relocation and Rearrangement of FPL Facilities. If the Local Government or other agency with control over the Local Government ROW or Other ROW, for any reason whatsoever, requires that FPL relocate or rearrange, in whole or in part, any Underground Faeilities (as they are to exist as a result of this Conversion, or as they may later be modified, upgraded, or otherwise altered) from or within the Local Government ROW or Other ROW, the Loeal Government, notwithstanding any language to the contrary in any applicable permit or franchise agreement, and prior to any such relocation by FPL, shall provide FPL with a substitute loeation, satisfactory to FPL, obtain any easements that may be necessary, and shall pay FPL for the costs of any such relocation, adjustment or rearrangement, now or in the future. Local Government shall reimburse FPL for all costs to locate, expose, proteet or support the Underground Facilities, whether underground or above ground, in the event of future construction or excavation in elose proximity to the Underground Facilities, when such services are required by Loeal Government or other agency with control over the Loeal Govemment ROW or Other ROW Local Govemment shall use its best efforts in any design and construction of its future road improvement projects to avoid or mitigate the necessity of 2 relocating or adjusting the Underground Facilities in Loeal Government ROWand, to the extent reasonably practicable, in Other ROW. 4. Abandonment or Sale of Local Government ROW. If the Local Government desires to subsequently abandon or discontinue use of the Loeal Government ROW, and ownership of the land is transferred to a private party, the Loeal Government, as a condition of and prior to any such sale, abandonment, or vacation, shall grant FPL an easement satisfactory to FPL for the Underground Facilities then existing within the ROW or require the transferee to so grant FPL an easement satisfactory to FPL at the time of transfer. If ownership of the Local Government ROW is transferred to another public entity, that public entity shall take the ROW subject to the terms and conditions of this Agreement. 5, Term. This Agreement shall remain in effeet for as long as FPL or any successor or assign owns or operates the Underground Facilities placed in the ROW, However, this Agreement may be terminated by FPL upon written notice in the event a separate Underground Facilities Conversion Agreement is not entered into within two years of the date of this Agreement. 6, Title and Ownership of Underground Facilities, Title and ownership of Underground Facilities installed by FPL as a result of this Agreement shall, at all times, remain the property of FPL 7, Conversion Outside ROW, In the event that the FPL Underground Facilities are not, for any reason other than the sole error of FPL or its eontraetors, constructed within the ROW, Local Govemment shall grant or secure, at Local Government's sole cost and expense, new easements or ROW grants for the benefit of FPL for the placement of the Underground Facilities in these areas, and shall secure subordinations of any mortgages affecting these tracts to the interest of FPL 8, Agreement Subject to FPL's Electric Tariff. This Agreement is subject to FPL's electric tariff, including but not limited to the general rules and regulations for electric service and the rules of the Florida Public Service Commission, as may be revised, amended or supplemented from time to time, 9. Venue; Waiver of Jury Trial. This Agreement shall be enforceable in Collier County, Florida, and if legal action is neeessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Collier County, Florida. By entering into this Agreement, FPL and the Local Government expressly waive any rights either party may have to a trial by jury of any civil litigation related to or arising out of this Agreement. This Agreement shall be construed in accordance with the laws of the State of Florida, 10, Attorney Fees. In the event it becomes necessary for either party to institute or defend legal proceedings as a result of the failure of the other party to comply with the terms, eovenants, or provisions of this Agreement, each party in such litigation shall bear its own cost and expenses incurred and extended in connection therewith, 3 including, but not limited to attorneys' fees and court costs through all trial and appellate levels. 11. Assignment. The Local Government shall not assign this Agreement without the written consent of FPL 12, Recording. This Agreement shall be adopted by the Loeal Government and maintained in the official records of Local Government for the duration of the term of this Agreement. This Agreement also shall be recorded in the Offieial Records of the County in which the Underground Faeilities are located, in the place and in the manner in whieh deeds are typically recorded, 13, Conflict Between Terms of Permit or Franchise Agreement. In the event of a conflict between the terms of this Agreement and any permit or franchise agreement entered into by Loeal Government and FPL, the terms of this Agreement shall controL 14, Notice. Any notice, instruction or other eommunication to be given to either party hereunder shall be in writing and shall be hand delivered, teleeopied, sent by Federal Express or a comparable overnight serviee or by U, S, registered or certified mail, with return receipt requested and postage prepaid to each party at their respeeti ve addresses set forth below: As to Local Government and Vanderbilt MSTU: Collier County Attorney 3301 Tamiami Trail, East Harmon Turner Building, 8th Floor Naples, Florida 34112 Facsimile No.: (239) 774-0225 With copies to: Norman Feder, Transportation Administrator, A.LC.P. Transportation Serviees Division 2885 Horseshoe Drive South Naples, FL 34104 Facsimile No,: (239) 252-8192 As to FPL: Florida Power & Light Company P,O, Box 14000,700 Universe Boulevard Juno Beaeh, FL 33408-0429 IN WITNESS WHEREOF, Florida Power & Light Company, Vanderbilt MSTU and the Local Government have executed this Agreement on the date first set forth above, 4 For and on behalf of the VANDERBILT MSTU Advisory Committee, through its Chairperson, By: .U~/c-- ( gnatore) Name: f,r/1U-1J f f- fOr:> # and By and through COLLIER COUNTY, FLORIDA as the LOCAL GOVERNMENT and in its capacity as the governing body of the VANDERBILT MSTU: By: #~~ Name: JAMES N. COLETTA Title: CHAIRMAN, BOARD OF COMMISSIONERS OF COLLIER FLORIDA COUNTY COUNTY, ATTEST: DWIGHT E. BROCK, Clerk By: CLuJ J. . ~O.c. ' MtHtv iJetJo 1 S s1gnat.... Oft1- J:;JiRZ~egal Sufficiency: Scott R, Teach, Managmg Assistant County Attorney RECEIVED ! [, N " j L'\OnR Jr.1 '~,.'.Jv 5 1 ra Hspurta UOJl ATM Dept. For I<'LORIDA POWER & LIGHT COMPANY By: .Jiutd~"^-- S Q,~~ (signature) Name: J3zrhA rt'i. S. QL{ {rlJV7P3 (print or type) Title: MCI' y D,5{J<"$/<:J!I.x ~ Pia n 111 he:; '"-(j (print or type) 0 --J RECEIVED 'AN 1 ., 0nn? ,) d ! LV,H., l'ransportu l.JOll ATM Del'\.