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R16-009 1 2 RESOLUTION NO. R16 -009 3 4 A RESOLUTION OF THE CITY OF BOYNTON BEACH, 5 FLORIDA, APPROVING A CONSTRUCTION AGREEMENT 6 BETWEEN THE CITY OF BOYNTON BEACH AND FLORIDA 7 DEPARTMENT OF TRANSPORTATION FOR CERTAIN RIGHT 8 - OF WAY IMPROVEMENTS ALONG SOUTH FEDERAL 9 HIGHWAY AS PART OF THE 500 OCEAN PROJECT AND 10 AUTHORIZING THE CITY MANAGER TO SIGN THE 11 AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. 12 13 WHEREAS, as part of the Florida Department of Transportation permitting 14 process for the 500 Ocean project FDOT requires the local municipality requesting on- 15 street parking located within FDOT right of way to execute a Construction Agreement 16 between the municipality and FDOT; and 17 WHEREAS, simultaneously, the City will be amending the developers agreement 18 approved via R15 -047, approved on May 5 2015 to include language to offset any 19 liabilities and /or risks associated with the execution of the Construction Agreement; and 20 WHEREAS, upon recommendation of staff, the City Commission of the City of 21 Boynton Beach Florida deems it to be in the best interest of the citizens of the City of 22 Boynton Beach to approve and authorize the City Manager to sign the Construction 23 Agreement between the City of Boynton Beach and Florida Department of Transportation 24 for the purpose of constructing certain right of way improvements along South Federal 25 Highway as part of the 500 Ocean project. 26 .NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF 27 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 28 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed 29 as being true and correct and are hereby made a specific part of this Resolution upon C \Users \pylej\Documents\R16 -009 Agreement_ with_FDOT(500_Ocean)_- _Reso.doc 30 adoption. 31 Section 2. The City Commission of the City of Boynton Beach, Florida, hereby 32 approves and authorizes the City Manager to sign a Construction Agreement between the 33 Florida Department of Transportation and City of Boynton Beach for the purpose of 34 constructing certain right of way improvements along South Federal Highway as part of 35 the 500 Ocean project, a copy of the Construction Agreement is attached hereto as Exhibit 36 "A". 37 Section 3. That this Resolution shall become effective immediately. 38 PASSED AND ADOPTED this 19th day of January, 2016. 39 CITY OF BOYNTON BEACH, FLORIDA 40 YES NO 41 42 Mayor — Jerry Taylor 43 44 Vice Mayor — Joe Casello 45 46 Commissioner — David T. Merker 47 48 Commissioner — Mack McCray 49 50 - Commissioner — Michael M. Fitzpatrick 51 52 53 VOTE 54 ATTEST: 55 zfAYMN rv F - y;;•,y, -r '" 56 57 ,42� ,r( ,JJJ yy % F : f .may 58 J ith A. Pyle, CMY E 1 59 If terim City Clerk Ak 60 ='&4;01 ,—c-444' 61 (Corporate Seal) C: \Users \pylej\Documents\R16 -009 Agreement_with_FDOT(500_Ocean)_ = Reso.doc STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION B50- 040-89 CONSTRUCTION AGREEMENT MAINTENANCE OGC — 07/13 Page 1 of 4 Construction Agreement No.: THIS CONSTRUCTION AGREEMENT (this "Agreement ") is made and entered into by and between the State of Florida, Department of Transportation, (Address) (hereinafter referred to as the "DEPARTMENT ") and City of Boynton Beach, Florida 100 East Boynton Beach, Boynton Beach Florida 33435 (hereinafter referred to as the "Construction Coordinator "). • WITNESSETH: WHEREAS, the DEPARTMENT is authorized and required by Section 334.044(13), Florida Statutes, to coordinate the planning, and operation of the State Highway System; and WHEREAS, pursuant to Section 339.282, Florida Statutes, the DEPARTMENT may contract with a property owner to finance, construct, and improve public transportation facilities; and WHEREAS, the Construction Coordinator proposes to construct certain improvements to SR Section Subsection from Begin MP to End MP Local Name City of Boynton Beach, Florida located in Palm Beach County (hereinafter referred to as the "Project "); and WHEREAS, the parties desire to enter into this Agreement for the Construction Coordinator to make improvements within the DEPARTMENT'S right of way to construct the Project, which will become the property of the Department upon acceptance of the work. NOW, THEREFORE, based on the premises above, and in consideration of the mutual covenants contained herein, the parties hereby agree that the construction of the Project shall proceed in accordance with the following terms and conditions: 1. The recitals set forth above are specifically incorporated herein by reference and made a part of this Agreement. The Construction Coordinator is authorized, subject to the conditions set forth herein, to enter the DEPARTMENT'S right of way to perform all activities necessary for the construction of See attached exhibit A scope of services /special provisions. 2. The Project shall be designed and constructed in accordance with the latest edition of the DEPARTMENT'S Standard Specifications for Road and Bridge Construction and DEPARTMENT Design Standards and Manual of Uniform Traffic Control Devices ( "MUTCD "). The following guidelines shall apply as deemed appropriate by the DEPARTMENT: the DEPARTMENT Structures Design Manual, AASHTO Guide Specifications for the Design of Pedestrian Bridges, AASHTO LRFD Bridge Design Specifications, the DEPARTMENT Plans Preparation Manual ( "PPM ") Manual for Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highways (the "Florida Green Book ") and the DEPARTMENT Traffic Engineering Manual. The Construction Coordinator will be required to submit any construction plans required by the DEPARTMENT for review and approval prior to any work being commenced. Should any changes to the plans be required during construction of the Project, the Construction Coordinator shall be required to notify the DEPARTMENT of the changes and receive approval from the DEPARTMENT prior to the changes being constructed. The Construction Coordinator shall maintain the area of the project at all times and coordinate any work needs of the DEPARTMENT during construction of the project. 3. The Construction Coordinator shall notify the DEPARTMENT a minimum of 48 hours before beginning construction within DEPARTMENT right of way. The Construction Coordinator shall notify the DEPARTMENT should construction be suspended for more than 5 working days. 4. Pursuant to Section 7 -13 of the DEPARTMENT Standard Specifications, the Construction Coordinator is required to possess a general liability insurance naming the DEPARTMENT as an additional insured and insuring the DEPARTMENT and the Construction Coordinator against any and all claims for injury or damage to persons and property, and for the loss of life or property that may occur (directly or indirectly) by reason of the Construction Coordinator accessing DEPARTMENT right of way and the Construction Coordinator's performance of the Project. Such amount shall be carried in a minimum amount of not less than and 00/100 Dollars ($ ) for bodily injury or death to any one person or any number of persons in any one occurrence, and not less than and 00/100 Dollars ($ ) for property damage, or a combined coverage of not less than and 00/100 Dollars ($ ). Additionally, the Construction Coordinator shall supply the DEPARTMENT with a payment and performance bond in the amount of the estimated cost of construction, provided by a surety authorized to do business in the State of Florida, payable to the DEPARTMENT. The bond and insurance shall remain in effect until completion of construction and acceptance by the DEPARTMENT. Prior to commencement of the Project and on such other occasions as the DEPARTMENT may reasonably require, the Construction Coordinator shall provide the DEPARTMENT with certificates documenting that the required insurance coverage is in place and effective. If the Construction Coordinator is a governmental entity they will be exempt from these requirements. 5. The Construction Coordinator shall be responsible for monitoring construction operations and the maintenance of traffic ("MOT ") throughout the course of the project in accordance with the latest edition of the DEPARTMENT Standard Specifications, section 102. The Construction Coordinator is responsible for the development of a MOT plan and making any changes to that plan as necessary. The MOT plan shall be in accordance with the latest version of the DEPARTMENT Design Standards, Index 600 series. Any MOT plan developed by the Construction Coordinator that deviates from the DEPARTMENT Design Standards must be signed and sealed by a professional engineer. MOT plans will require approval by the DEPARTMENT prior to implementation. 6. The Construction Coordinator shall be responsible for locating all existing utilities, both aerial and underground, and for ensuring that all utility locations be accurately documented on the construction plans. All utility conflicts shall be fully resolved directly with the applicable utility. , 850- 040-89 MAINTENANCE _ OGC — 07/13 Page 2 of 4 7. The Construction Coordinator will be responsible for obtaining all permits that may be required by other agencies or local governmental entities. 8. It is hereby agreed by the parties that this Agreement creates a permissive use only and all improvements resulting from this agreement shall become the property of the DEPARTMENT. Neither the granting of the permission to use the DEPARTMENT right of way nor the placing of facilities upon the DEPARTMENT property shall operate to create or vest any property right to or in the Construction Coordinator, except as may otherwise be provided in separate agreements. The Construction Coordinator shall not acquire any right, title, interest or estate in DEPARTMENT right of way, of any nature or kind whatsoever, by virtue of the execution, operation, effect, or performance of this Agreement including, but not limited to, the Construction Coordinator's use, occupancy or possession of DEPARTMENT right of way. The parties agree that this Agreement does not, and shall not be construed to, grant credit for any future transportation concurrency requirements pursuant to chapter 163, Florida Statutes. 9. The Construction Coordinator shall perform all required testing associated with the design and construction of the project. Testing results shall be made available to the DEPARTMENT upon request. The DEPARTMENT shall have the right to perform its own independent testing during the course of the Project. 10. The Construction Coordinator shall exercise the rights granted herein and shall otherwise perform this Agreement in a good and workmanlike manner, with reasonable care, in accordance with the terms and provisions of this Agreement and all applicable federal, state, local, administrative, regulatory, safety and environmental laws, codes, rules, regulations, policies, procedures, guidelines, standards and permits, as the same may be constituted and amended from time to time, including, but not limited to, those of the DEPARTMENT, applicable Water Management District, Florida Department of Environmental Protection, Environmental Protection Agency, the Army Corps of Engineers, the United States Coast Guard and local governmental entities. 11. If the DEPARTMENT determines a condition exists which threatens the public's safety, the DEPARTMENT may, at its discretion, cause construction operations to cease and immediately have any potential hazards removed from its right of way at the sole cost, expense, and effort of the Construction Coordinator. The Construction Coordinator shall bear all construction delay costs incurred by the DEPARTMENT. 12. All work and construction shall be completed within days of the date of the last signature affixed to this agreement. If construction is not completed within this time, the DEPARTMENT may make a claim on the bond. The DEPARTMENT may terminate this Agreement at any time, with or without cause and without DEPARTMENT liability to the Construction Coordinator, by providing sixty (60) days prior written notice of termination to the Construction Coordinator. 13. The Construction Coordinator shall be responsible to maintain and restore all features that might require relocation within the DEPARTMENT right of way. 14. The Construction Coordinator will be responsible for clean up or restoration required to correct any environmental or health hazards that may result from construction operations. 15. Upon completion of construction, the Construction Coordinator will be required to submit to the DEPARTMENT final as -built plans and an engineering certification that construction was completed in accordance to the plans. Prior to the termination of this Agreement, the Construction Coordinator shall remove its presence, including, but not limited to, all of the Construction Coordinator's property, machinery, and equipment from DEPARTMENT right of way and shall restore those portions of DEPARTMENT right of way disturbed or otherwise altered by the Project to substantially the same condition that existed immediately prior to the commencement of the Project. 16. If the DEPARTMENT determines that the Project is not completed in accordance with the provisions of this Agreement, the DEPARTMENT shall deliver written notification of such to the Construction Coordinator. The Construction Coordinator shall have thirty (30) days from the date of receipt of the DEPARTMENT'S written notice, or such other time as the Construction Coordinator and the DEPARTMENT mutually agree to in writing, to complete the Project and provide the DEPARTMENT with written notice of the same (the "Notice of Completion "). If the Construction Coordinator fails to timely deliver the Notice of Completion, or if it is determined that the- Project is not properly completed after receipt of the Notice of Completion, the DEPARTMENT, within its discretion may: 1) provide the Construction Coordinator with written authorization granting such additional time as the DEPARTMENT deems appropriate to correct the deficiency(ies); or 2) correct the deficiency(ies) at the Construction Coordinator's sole cost and expense, without DEPARTMENT liability to the Construction Coordinator for any resulting loss or damage to property, including, but not limited to, machinery and equipment. If the DEPARTMENT elects to correct the deficiency(ies), the DEPARTMENT shall provide the Construction Coordinator with an invoice for the costs incurred by the DEPARTMENT and the Construction Coordinator shall pay the invoice within thirty (30) days of the date of the invoice. 17. Nothing in this Agreement shall be deemed or otherwise interpreted as waiving the DEPARTMENT'S sovereign immunity protections, or as increasing the limits of liability as set forth in Section 768.28, Florida Statutes. The DEPARTMENT'S liability for breach of this Agreement is limited in amount and shall not exceed the limitations of liability for tort actions as set forth in Section 768.28(5), Florida Statutes. 18. All formal notices, proposed changes and determinations between the parties hereto and those required by this Agreement, including, but not limited to, changes to the notification addresses set forth below, shall be in writing and shall be sufficient if mailed by regular United States mail, postage prepaid, to the parties at the contact information listed below. 19. The Construction Coordinator shall not cause any liens or encumbrances to attach to any portion of DEPARTMENT right of way. 20. This Agreement shall be governed by the laws of the State of Florida in terms of interpretation and performance. Venue for any and all actions arising out of or in any way related to the interpretation, validity, performance or breach of this Agreement shall lie exclusively in a state court of appropriate jurisdiction in Leon County, Florida. 21. The Construction Coordinator may not assign, pledge or transfer any of the rights, duties and obligations provided in this Agreement without the prior written consent of the DEPARTMENT'S District Secretary or his /her designee. The DEPARTMENT has the sole discretion and authority to grant or deny proposed assignments, with or without cause. Nothing herein shall prevent the Construction Coordinator from delegating its duties hereunder, but such delegation shall not release the Construction Coordinator from its obligation to perform this Agreement. 850- 040 -89 MAINTENANCE OGC — 07/13 Page 3 of 4 22. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement is intended to confer any rights, privileges, benefits, obligations or remedies upon any other person or entity except as expressly provided for herein. 23. This instrument, together with the attached exhibits and documents made part hereof by reference, contain the entire agreement of the parties and no representations or promises have been made except those that are specifically set out in this Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements and representations, covenants, and warranties with respect to the subject matter of this Agreement, and any part hereof, are waived, merged herein and superseded hereby. 24. By their signature below, the parties hereby acknowledge the receipt, adequacy and sufficiency of consideration provided in this Agreement and forever waive the right to object to or otherwise challenge the same. 25. The failure of either party to insist on one or more occasions on the strict performance or compliance with any term or provision of this Agreement shall not be deemed a waiver or relinquished in the future of the enforcement thereof, and it shall continue in full force and effect unless waived or relinquished in writing by the party seeking to enforce the same. 26. No term or provision of this Agreement shall be interpreted for or against any party because that party or that party's legal representative drafted the provision. 27. If any section, paragraph, clause or provision of this Agreement is adjudged by a court, agency or authority of competent jurisdiction to be invalid, illegal or otherwise unenforceable, all remaining parts of this Agreement shall remain in full force and effect and the parties shall be bound thereby so long as principle purposes of this Agreement remain enforceable. 28. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. 29. The Construction Coordinator agrees to promptly indemnify, defend, save and hold harmless the DEPARTMENT and all of its officers, agents and employees from and pay all demands, claims, judgments, liabilities, damages, fines, fees, taxes, assessments, penalties, costs, expenses, attorneys' fees and suits of any nature or kind whatsoever caused by, or arising out of or related to the performance or breach of this Agreement by the Construction Coordinator, including, without limitation, performance of the Project within the DEPARTMENT'S right of way. The term "liabilities" shall specifically include, without limitation, any act, action, neglect or omission by the Construction Coordinator, its officers, agents, employees or representatives in any way pertaining to this Agreement, whether direct or indirect, except that neither the Construction Coordinator nor any of its officers, agents, employees or representatives will be liable under this provision for damages arising out of injury or damages directly caused or resulting from the sole negligence, intentional or wrongful acts of the DEPARTMENT or any of its officers, agents or employees. The Construction Coordinator shall notify the DEPARTMENT in writing immediately upon becoming aware of such liabilities. The Construction Coordinator's inability to evaluate liability, or its evaluation of liability, shall not excuse performance of the provisions of this paragraph. The indemnities assumed by the Construction Coordinator shall survive termination of this Agreement. The insurance coverage and limits required in this Agreement may or may not be adequate to protect the DEPARTMENT and such insurance coverage shall not be deemed a limitation on the Construction Coordinator's liability under the indemnities granted to the DEPARTMENT in this Agreement. 30. Construction Coordinator: (1) shall utilize the U.S. Department of Homeland Security's E- Verify system to verify the employment eligibility of all new employees hired by the Construction Coordinator during the term of the contract; and (2) shall expressly require any subcontractors performing work or providing services pursuant to the state contract to likewise utilize the U.S. Department of Homeland Security's E- Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the contract term. 31. COMPLIANCE WITH LAWS The Construction Coordinator shall 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 Construction Coordinator in conjunction with this Agreement. Specifically, if the Construction Coordinator is acting on behalf of a public agency the Construction Coordinator shall: - (1) Keep and maintain public records that ordinarily and necessarily would be required by the Department in order to perform the services being performed by the Construction Coordinator. (2) Provide the public with access to public records on the same terms and conditions that the Department would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (4) Meet all requirements for retaining public records and transfer, at no cost, to the Department all public records in possession of the Construction Coordinator upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the Department in a format that is compatible with the information technology systems of the Department. Failure by the Construction Coordinator to grant such public access shall be grounds for immediate unilateral cancellation of this Agreement by the Department. The Construction Coordinator shall promptly provide the Department with a copy of any request to inspect or copy public records in possession of the Construction Coordinator and shall promptly provide the Department a copy of the Construction Coordinator's response to each such request. 850 -040-89 MAINTENANCE OGC — 07113 Page 4 of 4 CONSTRUCTION COORDINATOR CONTACT INFORMATION Name Lori LaVerriere Title City Manager Office No. (561) 742 -6010 Cell (561) 876 -7150 Email LaVerriereL(o�bbfl.us Name Andrew P. Mack, P.E. (Alternate Contact) Title Director of Development/City Engineer Office No. (561) 742 -6374 Cell (561) 797 -6628 Email MackAna,bbfl.us Mail Address 100 East Boynton Beach Boulevard, Boynton Beach Florida 33435 IN WITNESS WHEREOF, Construction Coordinator and the DEPARTMENT have executed this Agreement for the purposes herein expressed on the dates indicated below. CONSTRUCTION COORDINATOR DEPARTMENT OF TRANSPORTATION By: (Signature) By: (Signature) Lori LaVerriere (Print Name) (Print Name) City Manager (Title) (Title) (Date) (Date) Legal Review: II EXHIBIT A SCOPE OF SERVICES Provide a description of the improvements proposed within FDOT ROW. II. PROJECT PLANS The Construction Coordinator is authorized to install the Project in accordance with the attached plans prepared by XXXXXXXX, P.E. and dated MM/DD /YYYY. Any revisions must be approved by the DEPARTMENT in writing. III. SPECIAL PROVISIONS FOR CONSTRUCTION Add special conditions that apply to the proposed improvements (i.e. pre - construction conference required, agreement subject to Construction Coordinator obtaining all necessary permits from other agencies, submit as -built plans, etc.) IV. MODIFICATIONS TO BASIC AGREEMENT The following sections shall be modified as indicated below: A. Section 12: The following sentence shall be added: The DEPARMENT and City manager of the CONSTRUCTION COORDINATOR may extend the completion date, if mutually agreed to in writing. B. Section 17: The following shall be added: Nothing in this agreement shall be interpreted as waiving the CONSTRUCTION COORDINATOR'S sovereign immunity protection as set forth in Section 768.28, Florida Statutes.