R09-012
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2 RESOLUTION NO. R09- 0/ J/
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4 A RESOLUTION OF THE CITY COMMISSION OF
5 THE CITY OF BOYNTON BEACH, FLORIDA,
6 AUTHORIZING EXECUTION BY THE CITY
7 MANAGER AND CITY CLERK OF A UTILITY WORK
8 BY HIGHWAY CONTRACTOR AGREEMENT
9 BETWEEN THE CITY OF BOYNTON BEACH AND
10 THE ST ATE OF FLORIDA DEPARTMENT OF
11 TRANSPORT A TION TO PROVIDE UTILITY
12 ADJUSTMENTS IN ASSOCIATION WITH THE
13 MILLING AND RESURFACING OF U.S.I FROM THE
14 C-16 CANAL TO HYPOLUXO ROAD; AND
15 PROVIDING AN EFFECTIVE DATE.
16
17 WHEREAS, the Florida Department of Transportation (FDOT) will be making
18 drainage improvements, milling and resurfacing U.S. 1 from the C-16 Canal to Hypoluxo
19 Road; and
20 WHEREAS, as part of their work, FDOT's contractor will need to adjust surface
21 utility features which are in the roadway or sidewalk; and
22 WHEREAS, City staff recommends that that City Commission approve the Utility
23 Work By Highway Contractor Agreement, a copy of which is attached hereto as Exhibit
24 .'A".
25 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
26 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
27 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
28 being true and correct and are hereby made a specific part of this Resolution upon adoption
29 hereof.
30 Section 2. The City Commission of the City of Boynton Beach, Florida does
31 hereby authorize and direct the City Manager and City Clerk to execute the Utility Work By
32 Highway Contractor Agreement to provide utility adjustments in association with the milling
33 and resurfacing of U.S. 1, a copy of which is attached hereto as Exhibit "A", and
S:\CA\RESO\Agreements\FDOT - Utility Work Agmt (US 1).doc
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1 incorporated herein by reference.
2 Section 3. That this Resolution shall take effect immediately upon passage.
3
4 PASSED AND ADOPTED this ~ day of January, 2009.
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6 CITY OF BOYNTON BEACH, FLORIDA
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M or - Je Taylo
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21 Commissioner - Marlene Ross
22 ATTEST:
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25 J t M. Prainito, CMC
26 ity Clerk
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S:\CA\RESO\Agreements\FDOT - Utility Work Agmt (US 1 ).doc
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710-010-57
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES
(LUMP SUM) 10104
Financial Project 10: 415311-1-52-01 Federal Project 10: 4854-061-P
~- .-..-.-.......-.......-.--.--"...............
County: Palm Beach State Road No.: 5
Oistrict Oocument No: 1
Utility Agency/Owner (UAO): City Of Boynton Beach
THIS AGREEMENT, entered into thiS~ day of rOf~ byand between the STATE
OF FLORIDA OEPARTMENT OF TRANSPORTATIO , referred to as the "FOOT," and
City Of Boynton Beach, hereinafter referred to as the "UAO";
WITNESSETH:
WHEREAS, the UAO owns 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 Federal Hiqhway, State Road No. Q, hereinafter referred to as the "Project"; and
WHEREAS, the Project requires minor modifications to the Facilities or the FOOT's design more particularly
described in Exhibit A attached hereto and by this reference made a part hereof, hereinafter referred to as "Utility
Work," and full plans and technical specifications for the Utility Work are not required; and
WHEREAS, the FOOT will perform the Utility Work as part of the Project; and
WHEREAS, the UAO, pursuant to the terms and conditions hereof, will bear certain costs associated with the
Utility Work; and
WHEREAS, the FOOT and the UAO desire to enter into an agreement which establishes the terms and
conditions applicable to the Utility Work;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the FOOT
and the UAO hereby agree as follows:
1. Performance of Utility Work
a. The FOOT will include the Utility Work in its plans and specifications for the Project and will include
the Utility Work as part of the FOOT's construction of the Project. The preparation of the plans and
specifications and the construction of the Project will be performed in such manner as the FOOT, in
its discretion, deemed appropriate.
b. All location, protection, relocation, adjustment, or removal of the UAO's Facilities which is not listed in
Exhibit A shall be performed pursuant to a separate agreement.
2. Cost of Utility Work
a. The UAO will, at least thirty (30) calendar days prior to the date on which the FOOT advertises the
Project for bids, pay the FOOT the amount of $ 34.496 for tt1e cost of the Utility Work. Said amount
will be deposited into the State Transportation Trust Fund.
b. The FOOT and the UAO acknowledge and agree that the amount stated above includes an additional
ten percent (10%) to cover the UAO's obligation for the cost of the Utility Work as set forth in Section
337.403(1 )(b), Florida Statutes.
Page 1 of 5
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710-010-57
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES
(LUMP SUM) 1 0/04
c. Except for costs associated with any changes or additions to the Utility Work, the FOOT and the UAO
agree that the deposit shall be an asset of the FOOT and that it constitutes a full and final lump sum
payment for the cost of the Utility Work, without any requirement for a subsequent accounting for the
use of the deposit.
d. Pursuant to Section 337.403(1 )(b), Florida Statutes, no changes or additions to the UtilityWork will be
made during the construction of the Project unless the UAO has made an additional deposit to cover
the cost of the changes or additions. To the extent that the amount stated in Subparagraph 2.a. above
exceeds the amount of the FOOT contractor's bid that applies to the Utility Work, such excess may
be applied to cover the cost of the changes or additions. All changes or additions shall be subject to
the limitations on supplemental agreements and change orders contained in Section 337.11 (8), Florida
Statutes.
3. Oefault
a. In the event that the UAO breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in this Agreement, the FOOT may exercise one or more of
the following options, provided that at no time shall the FOOT be entitled to receive double recovery of
damages:
(1 ) Terminate this Agreement if the breach is material and has not been cured within 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 FDOT until such time as the breach is cured.
(4) Pursue any other remedies legally available.
(5) Perform any work with its own forces or through contractors and seek repayment for the cost
thereof under Section 337.403(3), Florida Statutes.
b. In the event that the FOOT breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in the Agreement, the UAO may exercise one or more of
the following options:
(1 ) Terminate this Agreement if the breach is material and has not been cured within 60 days
from written notice thereof from the UAO.
(2) Pursue any other remedies legally available.
c. Termination of this Agreement shall not relieve either party from any obligations it has pursuant to
other agreements between the parties and from any statutory obligations that either party may have
with regard to the subject matter hereof.
4. 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
Page 2 of 5
STATE OF FLORIDA DEPARTMENT OF TRANS PORTA TION Form No. 710-010-57
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES
(LUMP SUM) 1 0/04
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 FDOT and the UAO will pay their
own costs for the evaluation, settlement negotiations, and trial, if any. However, if only one party participates in
the defense of the claim at trial, that party is responsible for all costs.
FOR NON-GOVERNMENT -OWN EO UTILITIES:
The UAO shall indemnify, defend, and hold harmless the FOOT and all of its officers, agents, and employees
from any claim, loss, damage, cost, charge, or expense arising out of any acts, action, error, neglect. or
omission by the UAO, its agents, employees, or contractors during the performance of the Agreement, whether
direct or indirect, and whether to any person or property to which FOOT or said parties may be subject, except
that neither the UAO, its agents, employees, or contractors will be liable under this section for damages arising
out of the injury or damage to persons or property directly caused by or resulting from the negligence of the
FOOT or any of its officers, agents, or employees during the performance of this Agreement.
The UAO's obligation to indemnify, defend, and pay for the defense or at the FOOT's option, to participate and
associate with the FOOT in the defense and trial of any damage claim or suit and any related settlement
negotiations, shall arise within fourteen (14) days of receipt by the UAO of the FOOT's notice of claim for
indemnification to the UAO. The notice of claim for indemnification shall be served by certified mail. The
UAO's obligation to defend and indemnify within fourteen (14) days of such notice shall not be excused
because of the UAO's inability to evaluate liability or because the UAO evaluates liability and determines the
UAO is not liable or determines the FDOT is solely negligent. Only a final adjudication or judgment finding the
FDOT 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 FDOT. The FOOT's delay in notifying the UAO of a
claim shall not release UAO of the above duty to defend.
5. 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.
6. Miscellaneous
a, To 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, and made or received by the UAO in conjunction with
this Agreement.
Page 3 of 5
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710-010-57
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES
(LUMP SUM) 10/04
c. This Agreement constitutes the complete and final expression of the parties with respect to the subject
matter hereof and supersedes all prior agreements, understandings, or negotiations with respect
thereto, except that the parties understand and agree that the FOOT has manuals and written policies
and procedures which shall be applicable at the time of the Project and the relocation of the Facilities
and except that the UAO and the FOOT may have entered into other agreements for work not included
in Exhibit A for Facilities located within the limits of the Project. 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 portions
hereof.
e. Time is of 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:
Kofi BoatenQ P.E.
Director of Utilities
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City of Bovnton Beach Utilities Department
124 E Woolbright Road
Bovnton Beach, FL 33435
If to the FOOT:
Courtney Drummond, P.E.
FDOT, Palm Beach Operations Center
7900 Forest Hill Blvd.
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West Palm Beach, FL 33413
7. Certification
This document is a printout of an FOOT form maintained in an electronic format and all revisions thereto by the
UAO in the form of additions, deletions, or substitutions are reflected only in an Appendix entitled Changes to
Form Document and no change is made in the text of the document itself. Hand notations on affected portions
of this document may refer to changes reflected in the above-named Appendix but are for reference purposes
only and do not change the terms of the document. By signing this document, the UAO hereby represents that
no change has been made to the text of this document except through the terms of the appendix entitled
Changes to Form Document."
You MUST signify by selecting or checking which of the following applies:
D No changes have been made to this Form Document and no Appendix entitled "Changes to Form
Document" is attached.
D No changes have been made to this Form Document, but changes are included on the attached Appendix
entitled "Changes to Form Document."
Page 4 of 5
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710-010-57
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES
(LUMP SUM) 10104
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written.
UTILITY: City Of Boynton Beach
BY: (Slgnalure) ~~ DATE: -
(Typed Name: Kurt Bressner) APPROVED AS TO FORM:
(Typed Title: City of Bovnton Beach City ManaQer) p CE1~
"" f ATTORNEY
;,:;-j;Zd2-00(
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FOOT Legal review
BY: {Signalurel QU4.I~~ ~ DATE~ 1.;1.- / ~ 00 9
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
DATE: ~,h! 9
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY: DATE: -
(Typed Name: _)
(Typed Title: _)
Page 5 of 5
The Citlj ol BoljDtOD Beach
City Clerk's Office
100 E BOYNTON BEACH BLVD
BOYNTON BEACH FL 33435
(561) 742-6060
FAX: (561) 742-6090
e-mail: prainitoj@ci.boynton-beach.f1.us
www.boynton-beach.org
January 26, 2009
Mr. Thuc Le, P.E.
FOOT District 4
3400 West Commercial Blvd
Fort Lauderdale, FL 33309-3421
Re: Resolution R09-012 Utility Work By Highway Contractor Agreement
Dear Mr. Le:
Attached for your handling is three (3) partially executed agreements and a copy of the Resolution
mentioned above. Once the agreements have been signed, please return one original to the City
Clerk's Office for Central File.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
cm OF BOYNTON BEACH
Yn.P~
~ainito' CMC
City Clerk
Attachment
CC: Chris Roschek
tis
s: \ cc \ WP\AFfER COMMISSION\ Other Transmittal Letters After Commission \2009 \R09-0 12 FDOT Highway Contractor Agreement.doc
America's Gateway to the Gulfstream
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Florida Department of Transportation
CHARLIE CRIST STEPHANIE KOPELOllSOS
GOVERNOR 3400 West Commercial Boulevard
Fort Lauderdale, FL 33309-3421 SECRETARY
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February 5, 2009 ..." -<0
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Ms. Janet M. Prainito, City Clerk ~:i
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Dear Ms. Prainito, :t:
Subject: UTILITY WORK BY HIGHWAY CONTRACTOR (LUMP SUM)
SR No.: 5 (US 1)
FP No.: 415311-1-52-01
County: Palm Beach
Description: Adjustment of Value Boxes and Conflict Manhole
Enclosed please find a fully executed Work by Highway Contractor Agreement.
This project will require a check made payable to the Florida Department of Transportation;
therefore, the City must provide the State with its check in the amount of $34,496.00 no later
than Apri129, 2009 as agreed in paragraph 2A of the Agreement.
Type the state project No. 415311-1-52-01 on the face of your check which shall be made
payable to the Department of Transportation, and mail it to the FDOT at the above referenced
address.
Thank you for your cooperation on this community project to improve the transportation system
III your area.
Sincerely,
~. ~
Anne V. Ends y
Utility Proje Manager
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Enclosures
Cc: Kofi Boateng, Boynton Beach; Bonnie McCoy Kirchgessner, Comptroller's MS 42
Antoinette Adams, Work Program; Thuc Le, Project Manager
www.dot.state.fl.us