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Resolution 2011-078 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION RESOLUTION 201 1 - 7 8 UTILITY AGREEMENT Form No Utilities Re.... 00/00 Financial Project 10: 195415-4-52-01 Federal Project 10: County/Section No: Collier State Road No. 84 (Davis Blvd.) District Document No: N/A Utility Agency/Owner (UAO): Collier County Water-Sewer District WHEREAS, the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FOOT", proposes to construct or reconstruct a transportation facility identified above, hereinafter referred to as the "Project": and WHEREAS, in order for the FOOT to proceed with the Project, it is necessary for 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 AGREEMENT lat UAO's Sole EXDensel, hereinafter referred to as the "Agreement"; NOW, THEREFORE, BE IT RESOLVED BY THE UAO: That Fred W. Covle, as Chairman of the Collier Countv Board of Countv Commissioners and as ex-officio Chairman of the aovernina board of the Collier Countv 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 (""''''''SIMer r:...I. , seconded by Co"""'''$IOMC and passed by the UAO on the Z b day of A " r" I , year of 20 Ii . Ij; lI.r, the above resolution was introduced 1,'.~ 1.'. \ ~" . . , ..\\ " ., ,. " f', I.~;' ATTEST: DWIGHT E..IiRO,CK, CLERK BOARD OF COUNTY COMMISSIONERS, :COLLlER COUNTY, FLORIDA, AS THE EX-OFFICIO CHAIRM N OF. THE GOVERNING BOARD OF THE COLLIER COUNTY WATE -SEWER DISTRIC1': .~ ~- .... .'- , " " > By.: . By: ....., Approv ~~~0-- Jennifer . White Assistant County Attorney C:\Ray's Documents\Forms\Resolution Utility Agreement.doc Financial Project 10: 195416-4-52-01 Federal Project 10: County: Collier State Road No.: 84 District Document No: Utility Agency/Owner (UAO): Collier County Water-Sewer District STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO'a Sol. Expona.) Form No 710-D10-55 Utllltfe, lOIO' THIS AGREEMENT, entered into this l b day of Apr; I , year of 20 II ,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: WHEREAS, 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 ofthe 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 Pag.l of 10 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (8t UAO'. Sole Expen..) 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. Form No 710..()1o.S5 Utll'l'.. 10/001 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 FOOT'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 pag.2 of 10 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (et UAO'. Sole Expen.e) a. 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, 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. FOfmNo 710-010-55 Utillt,e. 10104 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. 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 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 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 otherwise accommodated in the right of way. In the event that the Facilities that are Placed out of Service/Deactivated would Page 3 of 10 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO'. 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. Form No 710-010-55 UtIIlt!es 1010< 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. (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 Page 4 of 10 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (et UAO'a Sole Expenae) Form No 71~1o..55 Vlllit,.. ,"""" 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 ofthis 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: 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 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. Pave 5 of 10 STATE DF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (ot UAO'o Sole Expenao) FOR NON-GOVERNMENT-OWNED UTILITIES; Form No 710-010-55 Ulol",es H'IQ.4 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. Pursuant to 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. Poge 8 01 10 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO'a Sole Expenoe, and made or received by the UAO in conjunction with this Agreement. Form No 710-010-55 Utlll!le. 10104 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 negotiatiDns 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, Project Manager Collier County Public Utilities Division I 3339 East Tamiami Trail, Suite 303 i Naples, FL 34112 If to the FOOT: Ravmond Mercer, Utility Proiect Manager FDOT 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 Page 7 of 10 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (8t UAO'. Sole Expens.) 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." FOITTl No 71(}.Ot0-55 Util,tl.' 10/04 Page 8 of 10 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (et UAO'a Sole Expon.e) You MUST signify by selecting or checking which of the following applies: Form No 710-o'()..55 Ulllille. ,- J:8J o No changes have been made to this Form Document and no Appendix entitled "Changes to Form Document" is attached. No changes have been made to this Form Document, but changes are included on the attached Appendix entitled "Changes to Form Document." IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written. UTILITY: Collier County Water-Sewer District DA~~\:\~I ...\\\ 1'1/ ......' -. ,/~, ......... I...;' -: ~ ...' .:: .~.' .":; -- thaI ~ollier County u BY: (Typed Name: Fred W. Covle) (Typed Title: Chairman. Collier Board of County Commissioners)AS Ex-Officio the governing board of Water-Sewer District Recommend Approval by the District Utility Office >, '/ BY: {Signature) ", I;,' . c' .':' Ilj ,".\\ I j II J II i j " I ~ . \. ' DATE: FOOT Legal review BY: (Signature) DATE: District Counsel STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY: {Signature) DATE: (Typed Name: ) (Typed Title: ) Page 9 of 10 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) Form No 710-010-55 UlIhti.. '0/04 FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: ) (Typed Title: ) ..1rrut .';,. ~, liwI~ B. ~ CUll -.,~... ." \ .- Approved as to form & legal sufficiency .l ,-. <B,j:., .~ t .c. ~'U~ AssI t unty Attomey :)~u\rt.IL ~.~ ,,,L ,. Page 10 0110