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R09-012 II I 1 2 RESOLUTION NO. R09- 0/ J/ 3 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 " I 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. 5 6 CITY OF BOYNTON BEACH, FLORIDA 7 ~~r 8 9 M or - Je Taylo 10 ~~ 11 ." 12 ~ 13 14 15 16 17 18 19 20 21 Commissioner - Marlene Ross 22 ATTEST: 23 ~ 24 . 25 J t M. Prainito, CMC 26 ity Clerk 27 28 29 30 31 32 S:\CA\RESO\Agreements\FDOT - Utility Work Agmt (US 1 ).doc lioy -CJ /V 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 .<.----... ___.____~~ _._..m__ 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. ---.--....-.....-...........-.--- 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( I I 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 ~ Florida Department of Transportation CHARLIE CRIST STEPHANIE KOPELOllSOS GOVERNOR 3400 West Commercial Boulevard Fort Lauderdale, FL 33309-3421 SECRETARY n 0 (') -'I \.0 -1-< February 5, 2009 ..." -<0 ,.." n-r1 CX) rr:;o City of Boynton Beach I r"'lo \D . :J ...( Ms. Janet M. Prainito, City Clerk ~:i :r- vi"""'" 100 E. Boynton Beach Boulevard :x 0 - a;z: Boynton Beach, Florida 33435 - ..., .. -.,9J -- {'11 U1 0> C>> ""0 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 AE:af 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