HomeMy WebLinkAboutCity of Tamarac Resolution R-2005-051Temp. Reso. #10666
March 3, 2005
Page 1 of 3
Revised March 17, 2005
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2005-,�J;-�
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE A
RIGHT-OF-WAY BEAUTIFICATION AGREEMENT
BETWEEN BROWARD COUNTY AND THE CITY OF
TAMARAC FOR LANDSCAPING IMPROVEMENTS
WITHIN MCNAB ROAD MEDIANS FROM UNIVERSITY
DRIVE TO SW 83RD AVENUE AND FOR THE
MAINTENANCE THEREAFTER OF SAID LANDSCAPE
IMPROVEMENTS; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City of Tamarac has been assigned funds amounting to $34,131 by
the Broward County Metropolitan Transportation Improvement Program for certain
improvements to the medians along McNab Road from University Drive to the SW 83rd
Avenue; and
WHEREAS, the City of Tamarac proposes to install landscaping, irrigation and brick
pavers within the medians of McNab Road from University Drive to the SW 83rd Avenue;
and
WHEREAS, plans of the proposed improvements must be submitted to and
approved by Broward County Engineering for any work performed within the traffic right-of-
way of a Broward County roadway; and
WHEREAS, Broward County Engineering is requiring the execution of a standard
Right -Of -Way Beautification Agreement with the City of Tamarac (hereto attached as Exhibit
1); and
WHEREAS, the Director of Public Works recommends approval of this Agreement;
and
Temp. Reso. #10666
March $, 2005
Pag� 2 of 3
Revised March 11, 2005
WHEREAS, the City Commission of the City of Tamarac, Florida deems it to he in
the best interest of the citizens and residents of the City of Tamarac to execute a Right -Of —
Way Beautification Agreement between Broward County and the City Of Tamarac �for
landscaping improvements proposed for McNab Road from University Drive to the SW 83rd
Avenue and for the maintenance thereafter of said landscape improvements.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA:
SECTION 1-: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this ResclLdlon
upon adoption hereof,
SECTION 2: The appropriate City Officials are HEREBY authorized to
execute a Right -Of -Way Beautification Agreement between Broward County and the City of
Tamarac for landscaping improvements proposed for McNab Road from University Drive to
SW 83rd Avenue and for the maintenance thereafter of said improvements.
SECTION 3: All Resolutions or parts of Resolutions in conflict herBwi�h are
hereby repealed to the extent of such conflict.
SECTION 4: If any provision of this Resolution or the application theroof to
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any person orcircumstance is held invalid, such invalidity shall not affect other provisi6ns or
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applications of this Resolution that can be given effect without the invalid provision! or
application, and to this end the provisions of this Resolution are declared to be severa le.
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Temp. Reso. #10666
March 3, 2005
Page 3 of 3
Revised March 17, 2005
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passage and adoption.
This Resolution shall become effective immediately upon its
PASSED, ADOPTED AND APPROVED this 23 rd day of March, 2005.
ATTEST:
MARION SWENSON, CMC
CITY CLERK
I HEREBY CERTIFY that
I have approved this
RESOLUTION as to form.
MITCHELL 3-`KR)
CITY ATTORNE
P
JOE SCHREIBER
MAYOR
RECORD OF COMMISSION VOTE:
MAYOR SCHREIBER (2,a
DIST 1: COMM. PORTNER V (
DIST 2: COMM. FILANSBAUM-TAILABISCO
DIST 3: V/M. SULTANOF
DIST 4: COMM. ROBERTS
Exhibit "I"
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AGREEMENT
Between
BROWARD COUNTY
and
THE CITY OF TAMARAC
for
RIGHT OF WAY BEAUTIFICATION FOR
McNAB ROAD MEDIANS FROM UNIVERSITY DRIVE TO S.W. 83' AVENUE
AGREEMENT
Between
BROWARD COUNTY
and
CITY OF TAMARAC
for
RIGHT OF WAY BEAUTIFICATION FOR
McNAB ROAD MEDIANS FROM UNIVERSITY DRIVE TO S.W. 83'AVENUE
THIS IS AN AGREEMENT made and entered into by and between BROWARD
COUNTY, a political subdivision of the state of Florida, its successors and assigns,
hereinafter referred to as "COUNTY," through its Board of County Commissioners,
AND
The City of Tamarac, a municipal corporation located in Broward County, Florida,
organized and existing under the laws of the state of Florida, its successors and assigns,
hereinafter referred to as MUNICIPALITY.
WHEREAS, COUNTY is the owner of real property which lies within the right of
way of McNab Road, a County Road, and is located in the City of Tamarac; and
WHEREAS, it is of mutual benefit to the residents of COUNTY and MUNICIPALITY
to beautify the Right of Way by the installation of landscaping as defined in Article 1,
Section 1.7, herein; and
WHEREAS, MUNICIPALITY has expressed its desire to have the Right of Way
beautified and to undertake the maintenance of the landscaping following installation in the
Right of Way; and
WHEREAS, COUNTY has agreed to permit the use of a portion of the Right of Way
as described in Exhibit "A" attached hereto and incorporated herein (the "Property"),
subject to the terms and conditions of this Agreement; and
WHEREAS, MUNICIPALITY, by resolution of its governing body adopted on the
day of Nard-- '40 has approved the terms of this Agreement, and has
authorized the appropriate officers of MUNICIPALITY to execute this Agreement; and
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WHEREAS, COUNTY, by action of its Board of County Commissioners on the
day of I -, has approved this Agreement for
beautification of the Right of Way and has authorized the appropriate COUNTY officers to
execute this Agreement; NOW, THEREFORE,
IN CONSIDERATION of the mutual terms, conditions, promises and covenants
hereinafter set forth, COUNTY and MUNICIPALITY agree as follows:
ARTICLE 1 - DEFINITIONS AND IDENTIFICATIONS
1.1 Agreement: Agreement shall mean this document, Articles 1 through 8, inclusive.
Other terms and conditions are included in the exhibits and documents that are expressly
incorporated by reference.
1.2 Board: Board shall mean the Broward County Board of County Commissioners.
1.3 Contract Administrator: Contract Administrator shall mean the Director of Highway
Construction and Engineering Division or the designee of such Director. The primary
responsibilities of the Contract Administrator are to coordinate and communicate with
MUNICIPALITY and to manage and supervise execution and completion of the terms and
conditions of this Agreement as set forth herein, In the administration of this Agreement,
as contrasted with matters of policy, all parties may rely on the instructions or
determinations made by the Contract Administrator, provided, however, that such
instructions and determinations do not change the Scope of Participation.
1.4 COUNTY: COUNTY shall mean Broward County, through the Board, a political
subdivision of the State of Florida.
1.5 County Attorney: County Attorney shall mean the chief legal counsel for COUNTY
who directs and supervises the Office of the County Attorney pursuant to Section 4.03 of
the Broward County Charter.
1.6 Division. Division shall mean the Broward County Highway Construction and
Engineering Division.
1.7 Landscape: Landscape or Landscaping shall mean living plant materials such as
grasses, and trees or palms and nonliving durable materials commonly used in
environmental design such as, but not limited to curbing, rocks, pebbles, sand, paving,
decorative pavers, pump systems, grading and irrigation systems as authorized by this
Agreement and pursuant to Exhibit B.
1.8 MUNICIPALITY: MUNICIPALITY shall mean the City of Tamarac, a municipal
corporation of the State of Florida.
1.9 Plans: Plans shall mean the construction documents and specifications depicting
is and defining the Project including but not limited to the materials to be installed within the
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Property all as described in Exhibit B.
1. 10 Project: Project shall mean the participation described in Article 2.
1.11 Property: Property shall mean the beautified Right of Way described in Exhibit A.
ARTICLE 2 - SCOPE OF PARTICIPATION
COUNTY and MUNICIPALITY shall participate in the beautification of the Right of
Way in the manner set forth in this Agreement.
2.1 MUNICIPALITY shall:
2.1.1 MUNICIPALITY shall make application to the Division for a permit or cause
application to be made for a permit, for the installation of the landscaping set forth in
the Plans which have previously been approved by COUNTY. Installation of the
Landscaping authorized by this Agreement shall not proceed until the Division
permit(s) has/have been issued and permit conditions for commencement of
construction have been satisfied.
2.1.2 Once conditions for commencement of construction have been satisfied and
construction has commenced, MUNICIPALITY shall complete to the satisfaction of
the Contract Administrator, all construction in accordance with this Agreement,
applicable provisions of the Broward County Minimum Standards and the Division
permit.
2.1.3 At MUNICIPALITY's sole cost and expense, install and maintain, or cause to
have installed and maintained, consistent with prudent and well reasoned
installation and maintenance procedures and techniques, all Landscaping within the
Right of Way in a manner that will not pose a hazard to persons or vehicles on
adjacent property or the Right of Way, in accordance with the Plans, and install an
automatic irrigation system.
2.1.4 Provide signed and sealed certified as -built drawings detailing the pertinent
information regarding the installation, per the Plans, prior to requesting a final
inspection from the Contract Administrator.
2.1.5 Properly maintain and fertilize all vegetation; keep all vegetation as free from
disease and harmful insects as practicable; properly mulch the vegetation beds,
keeping them free from weeds; periodically mow the grass in order to maintain a
neat and proper appearance; prune all plants so as to remove all dead or diseased
parts of plants and all parts of plants which present a visual hazard or physical
obstacle to the use of the Right of Way; remove and replace all vegetation which is
dead or diseased or which otherwise falls below the initial level of beautification of
the Right of Way and keep litter removed from the Right of Way. Any replacement
of vegetation as required herein, shall be accomplished by the use of plants of the
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same grade as specified in the original Plans and shall be of the same size as those
existing at the time of replacement or with a mutually agreed upon substitution.
2.1.6 Not by its use or occupancy cause damage to the Property.
2.1.7 Give the COUNTY, or its agent, prompt written notice asset forth in Article 5
of any occurrence, incident or accident occurring on the Property.
2.2 COUNTY shall:
2.2.1 Upon receipt of a completed application for permit and the approved Plans,
by the Contract Administrator, review the application for completeness and either
reject the application or process the application for issuance of the permit.
2.2.2. Reserve the right to inspect and reject work which does not meet the
requirements of the Plans.
2.2.3 After receiving the signed and sealed certified as -built drawings detailing the
pertinent information regarding the installation per the Plans and request for a final
inspection the Contract Administrator and other interested parties, perform a final
inspection.
2.2.4 Upon receipt of all paperwork and completion of all inspection, through the
Is Contract Administrator notify MUNICIPALITY as to the status of the Project.
2.2.5 Have no further obligation except as otherwise specifically set forth herein.
2.3 COUNTY and MUNICIPALITY agree that all improvements placed upon the
Property shall remain the property of MUNICIPALITY, and shall be placed upon the
Property at the risk of MUNICIPALITY.
2.4 COUNTY and MUNICIPALITY agree and understand that this Agreement does not
change the County road functional classification.
ARTICLE 3 - TERM AND TERMINATION
3.1 The term of this Agreement shall begin on the date it is fully executed by both
parties and shall terminate as provided for by Sections 3.2 through 3.7 herein below.
3.2 This Agreement may be terminated for cause by COUNTY, through action of the
Board if the MUNICIPALITY has not corrected the breach within thirty (30) day of written
notice given by the COUNTY to the MUNICIPALITY setting forth the breach. If
MUNICIPALITY corrects the breach within thirty (30) days after written notice of same, to
the sole satisfaction of the COUNTY, the Agreement shall remain in full force and effect. If
such breach is not corrected and improved within thirty (30) days of receipt of notice of
breach, the COUNTY may terminate the Agreement. Specifically in the case of
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MUNICIPALITY's requirement to maintain the beautified Right of Way, COUNTY, at the
option of the Contract Administrator, may cause such breach to be corrected and improved
and bill MUNICIPALITY for the costs of such correction and improvement orterminate this
Agreement. If COUNTY opts to correct and improve the breach and bill MUNICIPALITY for
same, MUNICIPALITY shall then remit to COUNTY the amount so billed within thirty (30)
days of MUNICIPALITY's receipt thereof.
3.3 Termination of this Agreement for cause shall include, but not be limited to failure of
the MUNICIPALITY to suitably perform the services required by Article 2 herein, failure of
the MUNICIPALITY to maintain the beautified Right of Way pursuant to the terms of this
Agreement, and failure of the MUNICIPALITY to continuously perform the services
required by the terms and conditions of this Agreement in a manner calculated to meet or
accomplish the objectives set forth herein, notwithstanding whether any such breach was
previously waived or cured.
3.4 This Agreement may be terminated for convenience by COUNTY upon thirty (30)
day written notice given by COUNTY to MUNICIPALITY. This Agreement may also be
terminated by County's Contract Administrator upon such notice as Contract Administrator
deems appropriate in the eventthatthe Contract Administrator determines thattermination
is necessary to protect the public health, safety, or welfare.
- 3.5 In the event this Agreement is terminated for convenience, upon being notified of
election to terminate, the parties shall refrain from performing further services or incurring
additional expenses under the terms of this Agreement. MUNICIPALITY acknowledges
and agrees that ten dollars ($10.00), the adequacy of which is hereby acknowledged by
MUNICIPALITY, is given as specific consideration to MUNICIPALITY for County's right to
terminate this Agreement for convenience.
3.6 Notice of termination shall be provided in accordance with the Article 5, NOTICES,
except that notice of termination by Contract Administrator which Contract Administrator
deems necessary to protect the public health, safety, orwelfare may be verbal notice which
shall be promptly confirmed in writing in accordance with Article 5, NOTICES.
3.7 In the event this Agreement is terminated, or upon being notified of COUNTY's
election to terminate, MUNICIPALITY shall obtain a Division permit and remove from the
Property, at MUNICIPALITY'S sole expense, anything placed upon it unless COUNTY, in
writing, authorizes MUNICIPALITY to leave any landscaping or improvements on the
Property
3.7.1 MUNICIPALITY shall peaceably surrender and deliver the Property to the
COUNTY, or its agents immediately upon termination of this Agreement.
3.7.2 COUNTY shall have no obligation to remove, relocate, reinstall, replace, or in
anyway compensate MUNICIPALITY for any loss resulting from or arising out of the
termination of this Agreement, the requirement to remove improvements or
landscaping, or the removal of the same by the COUNTY upon failure of the
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3.7.3 MUNICIPALITY agrees to return the Property to safe condition following
removal of any improvements or landscaping.
3.7.4 MUNICIPALITY shall be obligated to repair or pay for any damage to
COUNTY property resulting from the removal of landscaping or improvements.
3.7.5 If mitigation is required as a result of termination, MUNICIPALITY shall obtain
a Broward County Department of Planning and Environmental Protection license
pertaining to Chapter 27, Article XIV, Sections 401 through 430 of the Broward
County Tree Preservation and Abuse Ordinance, as last amended, to provide for
relocation, removal and replacement per the tree removal license requirements at
MUNICIPALITY's sole cost and expense.
ARTICLE 4 - CHANGES IN SCOPE OF PARTICIPATION
Any change to the Scope of Participation must be accomplished by a written
amendment, executed by the parties in accordance with Section 8.11 below.
ARTICLE 5 - NOTICES
Whenever either party desires to give notice to the other, such notice must be in
writing, sent by certified United States Mail, postage prepaid, return receipt requested, or
by hand -delivery with a request for a written receipt of acknowledgment of delivery,
addressed to the party for whom it is intended at the place last specified. The place for
giving notice shall remain the same as set forth herein until changed in writing in the
manner provided in this section. For the present, the parties designate the following:
FOR BROWARD COUNTY:
Director, Highway Construction
and Engineering Division
One North University Drive
Suite 300B
Plantation, Florida 33324-2038
FOR MUNICIPALITY:
Director of Public Works
6011 Nob Hill Road
Tamarac, Florida 33321
ARTICLE 6 - INDEMNIFICATION
6.1 MUNICIPALITY is a state agency or political subdivision as defined in Chapter
768.28, Florida Statutes, and agrees to be fully responsible for acts and omissions of its
agents or employees to the extent permitted by law. Nothing herein is intended to serve as
a waiver of sovereign immunity by any party to which sovereign immunity may be
applicable. Nothing herein shall be construed as consent by a state agency or political
subdivision of the State of Florida to be sued by third parties in any matter arising out of
this Agreement or any other contract.
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6.2 In the event that MUNICIPALITY contracts with a third party to provide the services
set forth herein, addressed herein above, any contract with such third party shall include
the following provisions:
6.2.1 Indemnification: MUNICIPALITY's contractor shall at all times hereafter
indemnify, hold harmless and, at County Attorney's option, defend or pay for an
attorney selected by County Attorney to defend COUNTY, its officers, agents,
servants, and employees against any and all claims, losses, liabilities, and
expenditures of any kind, including attorney fees, court costs, and expenses,
caused by negligent act or omission of MUNICIPALITY's contractor, its employees,
agents, servants, or officers, or accruing, resulting from, or related to the subject
matter of this Agreement including, without limitation, any and all claims, demands,
or causes of action of any nature whatsoever resulting from injuries or damages
sustained by any person or property. The provisions of this section shall survive the
expiration or earlier termination of this Agreement. To the extent considered
necessary by Contract Administrator and County Attorney, any sums due
MUNICIPALITY's contractor under this Agreement may be retained by
MUNICIPALITY and/or COUNTY until all of COUNTY's claims for indemnification
pursuant to this Agreement have been settled or otherwise resolved; and any
amount withheld shall not be subject to payment of interest by MUNICIPALITY and/
or COUNTY.
6.2.2 In order to insure the indemnification obligation MUNICIPALITY's contractor
shall, at a minimum, provide, pay for, and maintain in force at all times during the
term of this Agreement (unless otherwise provided), the insurance coverages set
forth in Article 7, Section 7.2, in accordance with the terms and conditions required
by this Article.
6.2.3 The policies referred to in Section 6.2.2 herein above shall be without any
deductible amount and shall be issued by United States Treasury approved
companies authorized to do business in the State of Florida, and having agents
upon whom service of process may be made in Broward County, Florida.
ARTICLE 7 - INSURANCE
7.1 The parties hereto acknowledge that MUNICIPALITY is a self -insured governmental
entity subject to the limitations of Section 768.28, Florida Statutes. The MUNICIPALITY
shall institute and maintain a fiscally sound and prudent risk management program with
regard to its obligations under this Agreement in accordance with the provisions of Section
768.28, Florida Statutes.
7.2 In the event that MUNICIPALITY contracts with a third party to provide the services
set forth herein, any contract with such third party shall include the following provisions:
0 7.2.1 Insurance: MUNICIPALITY's contractor shall at all times during the term of
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this Agreement keep and maintain in full force and effect, at contractor's sole cost
and expense, Comprehensive General Liability with minimum limits of $500,000.00
per occurrence combined single limit for Bodily Injury Liability and Property Damage
Liability and Workers' Compensation insurance with minimum limits of $100,000.00
per occurrence combined single limit for Bodily Injury Liability and Property Damage
Liability. Coverage must be afforded on a form no more restrictive than the latest
edition of the Comprehensive General Liability and Workers Compensation policy,
without restrictive endorsements, as filed by the Insurance Services Office and shall
name COUNTY and Broward County Board of County Commissioners as an
additional insured. and shall name COUNTY and Broward County Board of County
Commissioners as an additional insured.
7.2.2 MUNICIPALITY's contractor shall furnish to the Contract Administrator
Certificates of Insurance or Endorsements evidencing the insurance coverages
specified by this Article prior to the beginning performance of work under this
Agreement.
7.2.3 Coverage is not to cease and is to remain in full force and effect (subject to
cancellation notice) until all performance required of MUNICIPALITY's contractor is
completed. All policies must be endorsed to provide COUNTY with at least thirty
(30) days' notice of cancellation and/or restriction. If any of the insurance
coverages will expire prior to the completion of the work, copies of renewal policies
shall be furnished at least thirty (30) days prior to the date of their expiration.
ARTICLE 8 - MISCELLANEOUS
8.1 AUDIT RIGHT AND RETENTION OF RECORDS. COUNTY shall have the right to
audit the books, records, and accounts of MUNICIPALITY that are related to this Project.
MUNICIPALITY shall keep such books, records, and accounts as may be necessary in
order to record complete and correct entries related to the Project. MUNICIPALITY shall
preserve and make available, at reasonable times for examination and audit by COUNTY,
all financial records, supporting documents, statistical records, and any other documents
pertinent to this Agreement for the required retention period of the Florida Public Records
Act (Chapter 119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not
applicable, for a minimum period of three (3) years after termination of this Agreement. If
any audit has been initiated and audit findings have not been resolved at the end of the
retention period or three (3) years, whichever is longer, the books, records, and accounts
shall be retained until resolution of the audit findings. If the Florida Public Records Act is
determined by COUNTY to be applicable to MUNICIPALITY's records, MUNICIPALITY
shall comply with all requirements thereof; however, no confidentiality or non -disclosure
requirement of either federal or state law shall be violated by MUNICIPALITY. Any
incomplete or incorrect entry in such books, records, and accounts shall be a basis for
COUNTY's disallowance and recovery of any payment upon such entry.
8.2 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND
AMERICANS WITH DISABILITIES ACT. MUNICIPALITY shall not unlawfully discriminate
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against any person in its operations and activities or in its use or expenditure of funds in
fulfilling its obligations under this Agreement. MUNICIPALITY shall affirmatively comply
with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of
providing any services funded by COUNTY, including Titles I and 11 of the ADA (regarding
nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and
standards. In addition, MUNICIPALITY shall take affirmative steps to ensure
nondiscrimination in employment against disabled persons. Such actions shall include, but
not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff, termination, rates of pay, other forms of compensation,
terms and conditions of employment, training (including apprenticeship), and accessibility.
8.2.1 MUNICIPALITY's decisions regarding the delivery of services under this
Agreement shall be made without regard to or consideration of race, age, religion,
color, gender, sexual orientation (Broward County Code, Chapter 162), national
origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lawfully used as a basis for service delivery.
8.2.2 MUNICIPALITY shall not engage in or commit any discriminatory practice in
violation of the Broward County Human Rights Act (Broward County Code,
Chapter 162) in performing any services pursuant to this Agreement.
8.3 THIRD PARTY BENEFICIARIES. Neither MUNICIPALITY nor COUNTY intend to
directly or substantially benefit a third party by this Agreement. Therefore, the parties
agree that there are no third party beneficiaries to this Agreement and that no third party
shall be entitled to assert a claim against either of them based upon this Agreement. The
parties expressly acknowledge that it is not their intent to create any rights or obligations in
any third person or entity under this Agreement.
8.4 ASSIGNMENT AND PERFORMANCE. Neither this Agreement nor any interest
herein shall be assigned, transferred, or encumbered by either party. MUNICIPALITY
represents that all persons delivering the services required by this Agreement have the
knowledge and skills, either by training, experience, education, or a combination thereof, to
adequately and competently perform the duties, obligations, and services set forth in the
Scoop of Participation and to provide and perform such services to COUNTY's satisfaction.
MUNICIPALITY shall perform its duties, obligations, and services under this Agreement in
a skillful and respectable manner. The quality of MUNICIPALITY's performance and all
interim and final product(s) provided to or on behalf of COUNTY shall be comparable to the
best local and national standards.
8.5 MATERIALITY AND WAIVER OF BREACH. COUNTY and MUNICIPALITY agree
that each requirement, duty, and obligation set forth herein is substantial and important to
the formation of this Agreement and, therefore, is a material term hereof. COUNTY's
failure to enforce any provision of this Agreement shall not be deemed a waiver of such
provision or modification of this Agreement. A waiver of any breach of a provision of this
Agreement shall not be deemed a waiver of any subsequent breach and shall not be
construed to be a modification of the terms of this Agreement.
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8.6 COMPLIANCE WITH LAWS. MUNICIPALITY shall comply with all federal, state,
and local laws, codes, ordinances, rules, and regulations in performing its duties,
responsibilities, and obligations pursuant to this Agreement.
8.7 SEVERANCE. In the event a portion of this Agreement is found by a court of
competent jurisdiction to be invalid, the remaining provisions shall continue to be effective
unless COUNTY or MUNICIPALITY elects to terminate this Agreement. An election to
terminate this Agreement based upon this provision shall be made within seven (7) days
after the finding by the court becomes final.
8.8 JOINT PREPARATION. The parties acknowledge that they have sought and
received whatever competent advice and counsel as was necessary for them to form a full
and complete understanding of all rights and obligations herein and that the preparation of
this Agreement has been theirjoint effort. The language agreed to expresses their mutual
intent and the resulting document shall not, solely as a matter of judicial construction, be
construed more severely against one of the parties than the other.
8.9 PRIORITY OF PROVISIONS. If there is a conflict or inconsistency between any
term, statement, requirement, or provision of any exhibit attached hereto, any document or
events referred to herein, or any document incorporated into this Agreement by reference
and a term, statement, requirement, or provision of this Agreement, the term, statement,
requirement, or provision contained in Articles 1 through 8 of this Agreement shall prevail
is and be given effect.
8.10 APPLICABLE LAW AND VENUE. This Agreement shall be interpreted and
construed in accordance with and governed by the laws of the State of Florida. Any
controversies or legal problems arising out of this Agreement and any action involving the
enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction
of the State courts of the Seventeenth Judicial Circuit of Broward County, Florida, the
venue situs, and shall be governed by the laws of the State of Florida. To encourage
prompt and equitable resolution of any litigation that may arise hereunder, each party
hereby waives any rights it may have to a trial by jury of any such litigation.
8.11 AMENDMENTS. No modification, amendment, or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document
prepared with the same or similar formality as this Agreement and executed by the Board
and MUNICIPALITY.
8.12 PRIOR AGREEMENTS. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable
to the matters contained herein and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are
not contained in this document. Accordingly, the parties agree that no deviation from the
terms hereof shall be predicated upon any prior representations or agreements, whether
oral or written. It is further agreed that no modification, amendment or alteration in the
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terms or conditions contained herein shall be effective unless set forth in writing in
accordance with Section 8.11 above.
8.13 INCORPORATION BY REFERENCE. The truth and accuracy of each Whereas
clause set forth above is acknowledged by the parties. The attached exhibits are
incorporated into and made a part of this Agreement.
8.14 MULTIPLE ORIGINALS. This Agreement maybe fully executed in five (5) copies by
all parties, each of which, bearing original signatures, shall have the force and effect of an
original document.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have made and executed this Agreement on
the respective dates under each signature: BROWARD COUNTY through its BOARD OF
COUNTY COMMISSIONERS, signing by and through its Mayor or Vice Mayor, authorized
to execute same by Board action and MUNICIPALITY of the City of Tamarac, signing by
and through its City Commission, duly authorized to execute same.
ATTEST:
County Administrator and
Ex-Officio Clerk of the
Board of County Commissioners
of Broward County, Florida
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COUNTY
BROWARD COUNTY, through its
BOARD OF COUNTY COMMISSIONERS
, Mayor
day of
Approved as to form by
Office of County Attorney
Broward County, Florida
EDWARD A. DION, County Attorney
Governmental Center, Suite 423
115 South Andrews Avenue
Fort Lauderdale, Florida 33301
Telephone: (954) 357-7600
Telecopier: (954) 357-6968
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Pamela M. Kane
Assistant County Attorney
200
day of 1 200_
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AGREEMENT BETWEEN BROWARD COUNTY AND THE CITY OF TAMARAC FOR
RIGHT OF WAY BEAUTIFICATION FOR McNAB ROAD MEDIANS FROM UNIVERSITY
DRIVE TO S.W. 83' AVENUE
FOR THE CITY OF TAMARAC:
ATTEST:
BY:
Marion Swenson, CMC, City Clerk
By:
Joe Schreiber, Mayor
Date: ,Sjas 10-5�
By:
JefflWy L�'Miller, City Manager
Date: 3
AP v
y
STATE OF FLORIDA Ss MitchellA KrW, Ct/Attorney
COUNTY OF
1 HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, personally appeared
dr&&.hrei be and jCf+rev Mill rr to me known to be the person(s) described in and who
executed the foregoing initrument and thexi acknowledged before me and under oath
that executed the same, I
WITNESS my hand and official seal this— A3 day of
20D,5L_.
Personally known to me, or
Produced identification
d CA42
ja�2-- —
NOIARY PU-E7L--IC,- State of Florida
at Large madw Serphos
fQ% my commission D02WV9
(Name of Notary Public: Print, Stamp,
or Type as Commissioned)
Type of I.D. Produced
( ) DlDtakean oath, or( 4DID NOTtakean oath
14
0 EXHIBIT "Apo
11
11
LEGAL DESCRIPTION OF RIGHT-OF-WAY TO BE IMPROVED
The medians within the McNab Road Right -Of -Way from University Drive to S.W.
83 rd Avenue
15
0 EXHIBIT O'B"
Plans, for landscaping, etc. improvements proposed to be installed within the property,
described in Exhibit A and which are on file with the Broward County Highway Construction
and Engineering Division under Project Reference No.
PMK
4/14/2004
PMK\FORMS\ROWBeau.doc
1101
CERTIFICATE OF COVERAGE
Certificate Holder
Administrator Issue Date 05/17/05
ATTN MR HENRY P COOK, PE
Florida League of Cities, Inc.
DIRECTOR HIGHWAY CONSTRUCTION AND
Public Risk Services
ENGINEERING DIVISION
P.O. Box 530065
BROWARD COUNTY BOARD OF COUNTY
Orlando, Florida 32853-0065
COMMISSIONERS
ONE NORTH UNIVERSITY DRIVE SUITE 300B
PLANTATION FL 33324 2038
COVERAGES
1 HIS IS TO CERTIFY THAT THE AGREEMENT BELOW HAS BEEN ISSUED TO THE DESIGNATED MEMBER FOR THE COVERAGE PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,
TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT NTH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE COVERAGE AFFORDED BY THE
AGREEMENT DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH AGREEMENT,
COVERAGE PROVIDED BY: FLORIDA MUNICIPAL INSURANCE TRUST
AGREEMENT NUMBER: FMIT 0584
COVERAGE PERIOD: FROM 10/1/04
1 COVERAGE PERIOD: TO 1011/06 12:01 AM STANDARD TIME
TYPE OF COVERAGE - LIABILITY
TYPE OF COVERAGE - PROPERTY
General Liability
El Buildings L1 Miscellaneous
El Basic Form El Inland Marine
Comprehensive General Liability, Bodily Injury, Property Damage and
Personal Injury
11 Special Form 0 Electronic Data Processing
Errors and Omissions Liability
EJ Personal Property El Bond
Supplemental Employment Practice
133sic Form
Employee Benefits Program Administration Liability
Special Form
Medical Attendants'/Medical Directors' Malpractice Liability
El Agreed Amount ,I- C:) C-)
Ul
i3road Form Property Damage
rf)
El Deductible N/A ;X MIX
=0
Law Enforcement Liability
El coinsurance N/A c7� Fi
Underground, Explosion & Collapse Hazard
El Blanket CD
El Specific
Limits of Liability
El Replacement Cost
Combined Single Limit
M
13 Actual Cash Value Z
Deductible Stoploss $25,000
--1 _J C�,
Automobile Liability
Limits of Liability on File with Administrator
All owned Autos (Private Passenger)
TYPE OF COVERAGE - WORKERS'COMPENSATION
All owned Autos (Other than Private Passenger)
El Hired Autos
El Statutory Workers' Compensation
0 Non -Owned Autos
Employers Liability $1,000,000 Each Accident
$1,000,000 By Disease
$1,000,000 Aggregate By Disease
Limits of Liability
* Combined Single Limit
El Deductible N/A
Deductible N/A
El
Automobile/Equipment — Deductible
El Physical Damage NIA - Comprehensive - Auto N/A - Collision - Auto N/A - Miscellaneous Equipment
Other
The limit of liability is $100,000 Bodily Injury and/or Property Damage per person or $200,000 Bodily Injury and/or Property Damage per occurrence. These
specific limits of liability are increased to $2,000,000 (combined single limit) per occurrence, solely for any liability resulting from entry of a claims bill pursuont to
Section 768,28 (5) Florida Statutes or liability imposed pursuant to Federal Low or actions outside the State of Florida.
Description of Operations/Locations/Vehicies/SpeciaI items
RE: Right -of -Way Beautification Agreement.
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RICHTS UPON THE CERTIPICAIGE HOLDER, THIS CERTIFICATE DO$$ NOT AMUND, IXTEND OR
ALTER THE COVERAGE AFFORDED BY THE AGREEMENT ABOVE.
_.—__?5/13/2005 12: 12 9547714923 GOREN CHEROF ET AL PAGE 01/01
2111S MAY 16 PH 4: 0,,6
REF.EK0 GOFtEN, CHEROP. DOODY & EZROL, P.A.
TAMAFJA(7, 3090 East Commercial Boulevard
-CITY �AANAG:ER Suits 200
Fort Lauderdale, Florida 33308
(954) 771-4600
Facsimile No. (954) 771-4023
DATE: May 13, 2006
RECIPIENT'$ PAX NO. 964-724-2428
TO: Jack Strain, Director, Public Works Dept, City of Tamarac
FROM: Julie F. Klahr, Assistant Interim City Attorney, City of Tamara
This transmission contains ol3e (j) page(s) Including this cover.
FILE NO: 050184
FILE REFERENCE: TameracAGM
COMMENTS:
You forwarded language for a Broward County Grant Agreement that had been revised by
the County, despite this fact that the agreement had previously been approved by the City. I
have reviewed the language you forwarded and have determined that the original language Is
substantially similar to the language proposed to be modified by the County. Since the
proposed revision is a non-substantlal modification to the Agreement, It will NOT be
necessary to resubmit the contract for approval by the City as revised.
Plexe let r8q know If you require anything further.
Uj
4---A
F5
W
The informallan oontalned In this facalmile message end the pauss'following 010 attorney Plivilegmd and confidential Inimmallan
intonded only for the use of the lndfvfdu#1 of enfitY named above, If the reader of We MOS8498 Is not the Intended reciplent, you
are hereby notIfled that ony disoominstion, distribution, or a Of this Communication Is fitrIOVY PrOhlbited.' If you hilve received
this earnmunlastion In arror, 010ase IMMedlately notify uso",
04*490 VIB thO U.S. Pbstal Service. Thank you. by tsI@PhQnQ end return the orlpinst M608890 to US at the 2bove
If any Problems Oocur In receiving thia rnessags. Please call this office at (954) 771,4aoo. Thank you.
AGREEMENT
Between
BROWARD COUNTY
and
THE CITY OF TAMARAC
for
RIGHT OF WAY BEAUTIFICATION FOR
McNAB ROAD MEDIANS FROM UNIVERSITY DRIVE TO S.W. 83rd AVENUE
1
AGREEMENT
Between
BROWARD COUNTY
and
CITY OF TAMARAC
for
RIGHT OF WAY BEAUTIFICATION FOR
McNAB ROAD MEDIANS FROM UNIVERSITY DRIVE TO S.W. 83dAVENUE
THIS IS AN AGREEMENT made and entered into by and between BROWARD
COUNTY, a political subdivision of the state of Florida, its successors and assigns,
hereinafter referred to as "COUNTY," through its Board of County Commissioners,
AND
The City of Tamarac, a municipal corporation located in Broward County, Florida,
organized and existing under the laws of the state of Florida, its successors and assigns,
hereinafter referred to as MUNICIPALITY.
WHEREAS, COUNTY is the owner of real property which lies within the right of
way of McNab Road, a County Road, and is located in the City of Tamarac; and
WHEREAS, it is of mutual benefit to the residents of COUNTY and MUNICIPALITY
to beautify the Right of Way by the installation of landscaping as defined in Article 1,
Section 1.7, herein; and
WHEREAS, MUNICIPALITY has expressed its desire to have the Right of Way
beautified and to undertake the maintenance of the landscaping following installation in the
Right of Way; and
WHEREAS, COUNTY has agreed to permit the use of a portion of the Right of Way
as described in Exhibit "A" attached hereto and incorporated herein (the "Property"),
subject to the terms and conditions of this Agreement; and
WHEREAS, MUNICIPALITY, by resolution of its governing body adopted on the 23 rd day
of March, 2005, has approved the terms of this Agreement, and has authorized the
appropriate officers of MUNICIPALITY to execute this Agreement; and
2
WHEREAS, COUNTY, by action of its Board of County Commissioners on the
day of I -, has approved this Agreement for
beautification of the Right of Way and has authorized the appropriate COUNTY officers to
execute this Agreement; NOW, THEREFORE,
IN CONSIDERATION of the mutual terms, conditions, promises and covenants
hereinafter set forth, COUNTY and MUNICIPALITY agree as follows:
ARTICLE 1 - DEFINITIONS AND IDENTIFICATIONS
1.1 Agreement: Agreement shall mean this document, Articles 1 through 8, inclusive,
Other terms and conditions are included in the exhibits and documents that are expressly
incorporated by reference.
1.2 Board* Board shall mean the Broward County Board of County Commissioners,
1.3 Contract Administrator: Contract Administrator shall mean the Director of Highway
Construction and Engineering Division or the designee of such Director. The primary
responsibilities of the Contract Administrator are to coordinate and communicate with
MUNICIPALITY and to manage and supervise execution and completion of the terms and
conditions of this Agreement as set forth herein. In the administration of this Agreement,
as contrasted with matters of policy, all parties may rely on the instructions or
determinations made by the Contract Administrator, provided, however, that such
instructions and determinations do not change the Scope of Participation.
1.4 COUNTY: COUNTY shall mean Broward County, through the Board, a political
subdivision of the State of Florida.
1.5 County Attorney: County Attorney shall mean the chief legal counsel for COUNTY
who directs and supervises the Office of the County Attorney pursuant to Section 4.03 of
the Broward County Charter.
1,6 Division. Division shall mean the Broward County Highway Construction and
Engineering Division.
1.7 Landscape: Landscape or Landscaping shall mean living plant materials such as
grasses, and trees or palms and nonliving durable materials commonly used in
environmental design such as, but not limited to curbing, rocks, pebbles, sand, paving,
decorative pavers, pump systems, grading and irrigation systems as authorized by this
Agreement and pursuant to Exhibit B.
1.8 MUNICIPALITY: MUNICIPALITY shall mean the City of Tamarac, a municipal
corporation of the State of Florida.
1.9 Plans: Plans shall mean the construction documents and specifications depicting
and defining the Project including but not limited to the materials to be installed within the
3
Property all as described in Exhibft B.
1.10 Project: Project shall mean the participation described in Article 2.
1. 11 Property: Property shall mean the beautified Right of Way described in Exhibit A.
ARTICLE 2 - SCOPE OF PARTICIPATION
COUNTY and MUNICIPALITY shall participate in the beautification of the Right of
Way in the manner set forth in this Agreement.
2.1 MUNICIPALITY shall:
2.1.1 MUNICIPALITY shall make application to the Division for a permit or cause
application to be made for a permit, for the installation of the landscaping set forth in
the Plans which have previously been approved by COUNTY. Installation of the
Landscaping authorized by this Agreement shall not proceed until the Division
permit(s) has/have been issued and permit conditions for commencement of
construction have been satisfied.
2.1.2 Once conditions for commencement of construction have been satisfied and
construction has commenced, MUNICIPALITY shall complete to the satisfaction of
the Contract Administrator, all construction in accordance with this Agreement,
applicable provisions of the Broward County Minimum Standards and the Division
permit.
2.1.3 At MUNICIPALITY's sole cost and expense, install and maintain, or cause to
have installed and maintained, consistent with prudent and well reasoned
installation and maintenance procedures and techniques, all Landscaping within the
Right of Way in a manner that will not pose a hazard to persons or vehicles on
adjacent property or the Right of Way, in accordance with the Plans, and install an
automatic irrigation system.
2.1.4 Provide signed and sealed certified as -built drawings detailing the pertinent
information regarding the installation, per the Plans, prior to requesting a final
inspection from the Contract Administrator.
2.1.5 Properly maintain and fertilize all vegetation; keep all vegetation as free from
disease and harmful insects as practicable; properly mulch the vegetation beds,
keeping them free from weeds; periodically mow the grass in order to maintain a
neat and proper appearance; prune all plants so as to remove all dead or diseased
parts of plants and all parts of plants which present a visual hazard or physical
obstacle to the use of the Right of Way; remove and replace all vegetation which is
dead or diseased or which otherwise falls below the initial level of beautification of
the Right of Way and keep litter removed from the Right of Way. Any replacement
of vegetation as required herein, shall be accomplished by the use of plants of the
N
same grade as specified in the original Plans and shall be of the same size as those
existing at the time of replacement or with a mutually agreed upon substitution.
2.1.6 Not by its use or occupancy cause damage to the Property.
2.1.7 Give the COUNTY, or its agent, prompt written notice asset forth in Article 5
of any occurrence, incident or accident occurring on the Property.
2.2 COUNTY shall:
2.2.1 Upon receipt of a completed application for permit and the approved Plans,
by the Contract Administrator, review the application for completeness and either
reject the application or process the application for issuance of the permit.
2.2.2. Reserve the right to inspect and reject work which does not meet the
requirements of the Plans.
2.2.3 After receiving the signed and sealed certified as -built drawings detailing the
pertinent information regarding the installation per the Plans and request for a final
inspection the Contract Administrator and other interested parties, perform a final
inspection.
2.2.4 Upon receipt of all paperwork and completion of all inspection, through the
Contract Administrator notify MUNICIPALITY as to the status of the Project.
2.2.5 Have no further obligation except as otherwise specifically set forth herein.
2.3 COUNTY and MUNICIPALITY agree that all improvements placed upon the
Property shall remain the property of MUNICIPALITY, and shall be placed upon the
Property at the risk of MUNICIPALITY.
2.4 COUNTY and MUNICIPALITY agree and understand that thisAgreement does not
change the County road functional classification.
ARTICLE 3 - TERM AND TERMINATION
3.1 The term of this Agreement shall begin on the date it is fully executed by both
parties and shall terminate as provided for by Sections 3.2 through 3.7 herein below.
3.2 This Agreement may be terminated for cause by COUNTY, through action of the
Board if the MUNICIPALITY has not corrected the breach within thirty (30) day of written
notice given by the COUNTY to the MUNICIPALITY setting forth the breach. If
MUNICIPALITY corrects the breach within thirty (30) days afterwritten notice of same, to
the sole satisfaction of the COUNTY, the Agreement shall remain in full force and effect, If
such breach is not corrected and improved within thirty (30) days of receipt of notice of
breach, the COUNTY may terminate the Agreement. Specifically in the case of
61
MUNICIPALITY's requirement to maintain the beautified Right of Way, COUNTY, at the
option of the Contract Administrator, may cause such breach to be corrected and improved
and bill MUNICIPALITY for the costs of such correction and improvement or terminate this
Agreement. If COUNTY opts to correct and improve the breach and bill MUNICIPALITY for
same, MUNICIPALITY shall then remit to COUNTY the amount so billed within thirty (30)
days of MUNICIPALITY's receipt thereof.
3.3 Termination of this Agreement for cause shall include, but not be limited to failure of
the MUNICIPALITY to suitably perform the services required by Article 2 herein, failure of
the MUNICIPALITY to maintain the beautified Right of Way pursuant to the terms of this
Agreement, and failure of the MUNICIPALITY to continuously perform the services
required by the terms and conditions of this Agreement in a manner calculated to meet or
accomplish the objectives set forth herein, notwithstanding whether any such breach was
previously waived or cured.
3.4 This Agreement may be terminated for convenience by COUNTY upon thirty (30)
day written notice given by COUNTY to MUNICIPALITY. This Agreement may also be
terminated by County's Contract Administrator upon such notice as Contract Administrator
deems appropriate in the event that the Contract Administrator determines that termination
is necessary to protect the public health, safety, or welfare.
3.6 In the event this Agreement is terminated for convenience, upon being notified of
election to terminate, the parties shall refrain from performing further services or incurring
additional expenses under the terms of this Agreement, MUNICIPALITY acknowledges
and agrees that ten dollars ($10.00), the adequacy of which is hereby acknowledged by
MUNICIPALITY, is given as specific consideration to MUNICIPALITY for County's right to
terminate this Agreement for convenience.
3.6 Notice of termination shall be provided in accordance with the Article 5, NOTICES,
except that notice of termination by Contract Administrator which Contract Administrator
deems necessary to protect the public health, safety, or welfare may be verbal notice which
shall be promptly confirmed in writing in accordance with Article 5, NOTICES.
3.7 In the event this Agreement is terminated, or upon being notified of COUNTY's
election to terminate, MUNICIPALITY shall obtain a Division permit and remove from the
Property, at MUNICIPALITY'S sole expense, anything placed upon it unless COUNTY, in
writing, authorizes MUNICIPALITY to leave any landscaping or improvements on the
Property
3.7.1 MUNICIPALITY shall peaceably surrender and deliver the Property to the
COUNTY, or its agents immediately upon termination of this Agreement.
3.7.2 COUNTY shall have no obligation to remove, relocate, reinstall, replace, or in
anyway compensate MUNICIPALITY for any loss resulting from or arising out of the
termination of this Agreement, the requirement to remove improvements or
landscaping, or the removal of the same by the COUNTY upon failure of the
1.1
MUNICIPALITY to restore the Property.
3.7.3 MUNICIPALITY agrees to return the Property to safe condition following
removal of any improvements or landscaping.
3.7.4 MUNICIPALITY shall be obligated to repair or pay for any damage to
COUNTY property resulting from the removal of landscaping or improvements.
3.7.5 If mitigation is required as a result of termination, MUNICIPALITY shall obtain
a Broward County Department of Planning and Environmental Protection license
pertaining to Chapter 27, Article XIV, Sections 401 through 430 of the Broward
County Tree Preservation and Abuse Ordinance, as last amended, to provide for
relocation, removal and replacement per the tree removal license requirements at
MUNICIPALITY's sole cost and expense.
ARTICLE 4 - CHANGES IN SCOPE OF PARTICIPATION
Any change to the Scope of Participation must be accomplished by a written
amendment, executed by the parties in accordance with Section 8.11 below.
ARTICLE 5 - NOTICES
Whenever either party desires to give notice to the other, such notice must be in
writing, sent by certified United States Mail, postage prepaid, return receipt requested, or
by hand -delivery with a request for a written receipt of acknowledgment of delivery,
addressed to the party for whom it is intended at the place last specified. The place for
giving notice shall remain the same as set forth herein until changed in writing in the
manner provided in this section. For the present, the parties designate the following:
FOR BROWARD COUNTY:
Director, Highway Construction
and Engineering Division
One North University Drive
Suite 300B
Plantation, Florida 33324-2038
FOR MUNICIPALITY:
Director of Public Works
6011 Nob Hill Road
Tamarac, Florida 33321-2401
ARTICLE 6 - INDEMNIFICATION
6.1 MUNICIPALITY is a state agency or political subdivision as defined in Chapter
768.28, Florida Statutes, and agrees to be fully responsible for acts and omissions of its
agents or employees to the extent permitted by law. Nothing herein is intended to serve as
a waiver of sovereign immunity by any party to which sovereign immunity may be
applicable. Nothing herein shall be construed as consent by a state agency or political
subdivision of the State of Florida to be sued by third parties in any matter arising out of
this Agreement or any other contract.
7
6.2 In the event that MUNICIPAL" contracts with a third party to provide the services
set forth herein, addressed herein above, any contract with such third party shall include
the following provisions:
6.2.1 Indemnification: MUNICIPALITY's contractor shall at all times hereafter
indemnify, hold harmless and, at County Attorney's option, defend or pay for an
attorney selected by County Attorney to defend COUNTY, its officers, agents,
servants, and employees against any and all claims, losses, liabilities, and
expenditures of any kind, including attorney fees, court costs, and expenses,
caused by negligent act or omission of MUNICIPALITY's contractor, its employees,
agents, servants, or officers, or accruing, resulting from, or related to the subject
matter of this Agreement including, without limitation, any and all claims, demands,
or causes of action of any nature whatsoever resulting from injuries or damages
sustained by any person or property. The provisions of this section shall survive the
expiration or earlier termination of this Agreement. To the extent considered
necessary by Contract Administrator and County Attorney, any sums due
MUNICIPALITY's contractor under this Agreement may be retained by
MUNICIPALITY and/or COUNTY until all of COUNTY's claims for indemnification
pursuant to this Agreement have been settled or otherwise resolved, and any
amount withheld shall not be subject to payment of interest by MUNICIPALITY and/
or COUNTY.
6.2.2 In order to insure the indemnification obligation MUNICIPALITY's contractor
shall, at a minimum, provide, pay for, and maintain in force at all times during the
term of this Agreement (unless otherwise provided), the insurance coverages set
forth in Article 7, Section 7.2, in accordance with the terms and conditions required
by this Article.
6.2.3 The policies referred to in Section 6.2.2 herein above shall be without any
deductible amount and shall be issued by United States Treasury approved
companies authorized to do business in the State of Florida, and having agents
upon whom service of process may be made in Broward County, Florida.
ARTICLE 7 - INSURANCE
7.1 MUNICIPALITY is an entity subject to Section 768.28, Florida Statutes, and
MUNICIPALITY shall furnish Contract Administrator with written verification of liability
protection in accordance with state law prior to final execution of said agreement.
7.2 In the event that MUNICIPALITY contracts with a third party to provide the services
set forth herein, any contract with such third party shall include the following provisions:
7.2.1 Insurance: MUNICIPALITY's contractor shall'at all times during the term of
this Agreement keep and maintain in full force and effect, at contractor's sole cost
and expense, Comprehensive General Liability with minimum limits of $500,000.00
E.
per occurrence combined single limit for Bodily Injury Liability and Property Damage
Liability and Workers'Compensation insurance with minimum limits of $100,000 .00
per occurrence combined single limit for Bodily Injury Liability and Property Damage
Liability. Coverage must be afforded on a form no more restrictive than the latest
edition of the Comprehensive General Liability and Workers Compensation policy,
without restrictive endorsements, as filed by the Insurance Services Office and shall
name COUNTY and Broward County Board of County Commissioners as an
additional insured. and shall name COUNTY and Broward County Board of County
Commissioners as an additional insured.
7.2.2 MUNICIPALITY's contractor shall furnish to the Contract Administrator
Certificates of Insurance or Endorsements evidencing the insurance coverages
specified by this Article prior to the beginning performance of work under this
Agreement.
7.2.3 Coverage is not to cease and is to remain in full force and effect (subject to
cancellation notice) until all performance required of MUNICIPALITY's contractor is
completed. All policies must be endorsed to provide COUNTY with at least thirty
(30) days' notice of cancellation and/or restriction. If any of the insurance
coverages will expire prior to the completion of the work, copies of renewal policies
shall be furnished at least thirty (30) days prior to the date of their expiration.
ARTICLE 8 - MISCELLANEOUS
8.1 AUDIT RIGHT AND RETENTION OF RECORDS. COUNTY shall have the right to
audit the books, records, and accounts of MUNICIPALITY that are related to this Project.
MUNICIPALITY shall keep such books, records, and accounts as may be necessary in
order to record complete and correct entries related to the Project. MUNICIPALITY shall
preserve and make available, at reasonable times for examination and audit by COUNTY,
all financial records, supporting documents, statistical records, and any other documents
pertinent to this Agreement for the required retention period of the Florida Public Records
Act (Chapter 119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not
applicable, for a minimum period of three (3) years after termination of this Agreement. If
any audit has been initiated and audit findings have not been resolved at the end of the
retention period or three (3) years, whichever is longer, the books, records, and accounts
shall be retained until resolution of the audit findings. If the Florida Public Records Act is
determined by COUNTY to be applicable to MUNICIPALITY's records, MUNICIPALITY
shall comply with all requirements thereof, however, no confidentiality or non -disclosure
requirement of either federal or state law shall be violated by MUNICIPALITY. Any
incomplete or incorrect entry in such books, records, and accounts shall be a basis for
COUNTY's disallowance and recovery of any payment upon such entry.
8.2 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND
AMERICANS WITH DISABILITIES ACT. MUNICIPALITY shall not unlawfully discriminate
against any person in its operations and activities or in its use or expenditure of funds in
fulfilling its obligations under this Agreement. MUNICIPALITY shall affirmatively comply
with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of
providing any services funded by COUNTY, including Titles I and 11 of the ADA (regarding
nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and
standards. In addition, MUNICIPALITY shall take affirmative steps to ensure
nondiscrimination in employment against disabled persons. Such actions shall include, but
not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff, termination, rates of pay, other forms of compensation,
terms and conditions of employment, training (including apprenticeship), and accessibility.
8.2.1 MUNICIPALITY's decisions regarding the delivery of services under this
Agreement shall be made without regard to or consideration of race, age, religion,
color, gender, sexual orientation (Broward County Code, Chapter 162), national
origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lawfully used as a basis for service delivery.
8.2.2 MUNICIPALITY shall not engage in or commit any discriminatory practice in
violation of the Broward County Human Rights Act (Broward County Code,
Chapter 162) in performing any services pursuant to this Agreement.
8.3 THIRD PARTY BENEFICIARIES. Neither MUNICIPALITY nor COUNTY intend to
directly or substantially benefit a third party by this Agreement. Therefore, the parties
agree that there are no third party beneficiaries to this Agreement and that no third party
shall be entitled to assert a claim against either of them based upon this Agreement. The
parties expressly acknowledge that it is not their intent to create any rights or obligations in
any third person or entity under this Agreement.
8.4 ASSIGNMENT AND PERFORMANCE, Neither this Agreement nor any interest
herein shall be assigned, transferred, or encumbered by either party. MUNICIPALITY
represents that all persons delivering the services required by this Agreement have the
knowledge and skills, either by training, experience, education, or a combination thereof, to
adequately and competently perform the duties, obligations, and services set forth in the
Scoop of Participation and to provide and perform such services to COUNTY's satisfaction.
MUNICIPALITY shall perform its duties, obligations, and services under this Agreement in
a skillful and respectable manner. The quality of MUNICIPALITY's performance and all
interim and final product(s) provided to or on behalf of COUNTY shall be comparable to the
best local and national standards.
8,5 MATERIALITY AND WAIVER OF BREACH. COUNTY and MUNICIPALITY agree
that each requirement, duty, and obligation set forth herein is substantial and important to
the formation of this Agreement and, therefore, is a material term hereof. COUNTY's
failure to enforce any provision of this Agreement shall not be deemed a waiver of such
provision or modification of this Agreement. A waiver of any breach of a provision of this
Agreement shall not be deemed a waiver of any subsequent breach and shall not be
construed to be a modification of the terms of this Agreement.
8.6 COMPLIANCE WITH LAWS. MUNICIPALITY shall comply with all federal, state,
10
and local laws, codes, ordinances, rules, and regulations in performing its duties,
responsibilities, and obligations pursuant to this Agreement.
8.7 SEVERANCE. In the event a portion of this Agreement is found by a court of
competent jurisdiction to be invalid, the remaining provisions shall continueto beeffective
unless COUNTY or MUNICIPALITY elects to terminate this Agreement. An election to
terminate this Agreement based upon this provision shall be made within seven (7) days
after the finding by the court becomes final.
8.8 JOINT PREPARATION. The parties acknowledge that they have sought and
received whatever competent advice and counsel as was necessary for them to form a full
and complete understanding of all rights and obligations herein and that the preparation of
this Agreement has been theirjoint effort. The language agreed to expresses their mutual
intent and the resulting document shall not, solely as a matter of judicial construction, be
construed more severely against one of the parties than the other.
8.9 PRIORITY OF PROVISIONS. If there is a conflict or inconsistency between any
term, statement, requirement, or provision of any exhibit attached hereto, any document or
events referred to herein, or any document incorporated into this Agreement by reference
and a term, statement, requirement, or provision of this Agreement, the term, statement,
requirement, or provision contained in Articles I through 8 of this Agreement shall prevail
and be given effect.
8.10 APPLICABLE LAW AND VENUE. This Agreement shall be interpreted and
construed in accordance with and governed by the laws of the State of Florida. Any
controversies or legal problems arising out of this Agreement and any action involving the
enforcement or interpretation of any rights hereunder shall be submifted to the jurisdiction
of the State courts of the Seventeenth Judicial Circuit of Broward County, Florida, the
venue situs, and shall be governed by the laws of the State of Florida. To encourage
prompt and equitable resolution of any litigation that may arise hereunder, each party
hereby waives any rights it may have to a trial by jury of any such litigation.
8.11 AMENDMENTS. No modification, amendment, or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document
prepared with the same or similar formality as this Agreement and executed by the Board
and MUNICIPALITY.
8.12 PRIOR AGREEMENTS. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable
to the matters contained herein and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are
not contained in this document. Accordingly, the parties agree that no deviation from the
terms hereof shall be predicated upon any prior representations or agreements, whether
oral or written. It is further agreed that no modification, amendment or alteration in the
terms or conditions contained herein shall be effective unless set forth in writing in
accordance with Section 8.11 above.
11
8.13 INCORPORATION BY REFERENCE. The truth and accuracy of each Whereas
clause set forth above is acknowledged by the parties. The attached exhibits are
incorporated into and made a part of this Agreement.
8.14 MULTIPLE ORIGINALS. This Agreement may be fully executed in five (5) copies by
all parties, each of which, bearing original signatures, shall have the force and effect of an
original document.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the parties have made and executed this Agreement on
the respective dates under each signature: 13ROWARD COUNTY through its BOARD OF
COUNTY COMMISSIONERS, signing by and through its Mayor or Vice Mayor, authorized
to execute same by Board action and MUNICIPALITY of the City of Tamarac, signing by
and through its City Commission, duly authorized to execute same.
ATTEST:
County Administrator and
Ex-Officio Clerk of the
Board of County Commissioners
of Broward County, Florida
X611111,Y1941
BROWARD COUNTY, through its
BOARD OF COUNTY COMMISSIONERS
M,
, Mayor
day of , 200_
Approved as to form by
Office of County Attorney
Broward County, Florida
EDWARD A. DION, County Attorney
Governmental Center, Suite 423
115 South Andrews Avenue
Fort Lauderdale, Florida 33301
Telephone: (954) 357-7600
Telecopier: (954) 357-6968
B
Pamela M. Kane
Assistant County Attorney,
day of 200.
AGREEMENT BETWEEN BROWARD COUNTY
RIGHT OF WAY BEAUTIFICATION FOR
UNIVERSITY DRIVE TO S.W. 83d AVENUE
FOR THE CITY OF TAMARAC:
ATTEST:
By:
Marion Swenson, CMC, City Clerk
STATE OF FLORIDA
SS
COUNTY OF largiinret:
L-05
AND THE CITY OF TAMARAC FOR
McNAB ROAD MEDIANS FROM
Joe Schreiber, May6r
Date: 5511 lzs�c
By:
Jeffr6/L. Miller, City Manager
Date: C's-
Ap
By
S
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, personally appeared
&x Sa re JeHreW Mil) o me known to be the person(s) described in and
who executed the! foregofng instrument and acknowledged before me and
under oath that —the W executed the sa
j
WITNESS my hand and official seal this 19 day of n012L4
2005. 1
v")Personally known to me, or
) Produced identification
X
NOURY PUBLIC, State of Florida
at �rw meftn S"'A-
'4�.iuq Mv C"n"60" W2WV2
Eyp(e$ CkIoW 24.2WT
(Name of Notary Public: Print, Stamp,
or Type as Commissioned)
Type of I.D. Produced
( ) DID take an oath, or ( vJIDID NOT take an oath
14
EXHIBIT "A"
LEGAL DESCRIPTION OF RIGHT-OF-WAY TO BE IMPROVED
The medians within the McNab Road Right -Of -Way from University Drive to S.W.
83 Id Avenue
15
EXHIBIT "13-1
Plans, for landscaping, etc. improvements proposed to be installed within the property,
descdbed in Exhibit A and which are on file with the Broward County Highway Construction
and Engineering Division under Project Reference No.
13mayO5
i U
AGREEMENT
Between
BROWARD COUNTY
and
THE CITY OF TAMARAC
. for
RIGHT OF WAY BEAUTIFICATION FOR
McNAB ROAD MEDIANS FROM UNIVERSITY DRIVE TO S.W. 83'd AVENUE
AGREEMENT
Between
BROWARD COUNTY
and
CITY OF TAMARAC
for
RIGHT OF WAY BEAUTIFICATION FOR
MCNAB ROAD MEDIANS FROM UNIVERSITY DRIVE TO S.W. 83'AVENUE
THIS IS AN AGREEMENT made and entered into by and between BROWARD
COUNTY, a political subdivision of the state of Florida, its successors and assigns,
hereinafter referred to as "COUNTY," through its Board of County Commissioners,
F.11,21101
The City of Tamarac, a municipal corporation located in Broward County, Florida,
organized and existing under the laws of the state of. Florida, its successors and assigns,
hereinafter referred to as MUNICIPALITY.
WHEREAS, COUNTY is the owner of real property which lies within the right of
way of McNab Road, a County Road, and is located in the City of Tamarac; and
WHEREAS, it is of mutual benefit to the residents of COUNTY and MUNICIPALITY
to beautify the Right of Way by the installation of landscaping as defined in Article 1,
Section 1.7, herein; and
WHEREAS, MUNICIPALITY has expressed its desire to have the Right of Way
beautified and to undertake the maintenance of the landscaping following installation in the
Right of Way; and
WHEREAS, COUNTY has agreed to permit the use of a portion of the Right of Way
as described in Exhibit "A" attached hereto and incorporated herein (the "Property"),
subject to the terms and conditions of this Agreement; and
WHEREAS, MUNICIPALITY, by resolution of its governing body adopted on the 23rd day
of March, 2005, has approved the terms of this Agreement, and has authorized the
appropriate officers of MUNICIPALITY to execute this Agreement; and
K
WHEREAS, COUNTY, by action of its Board of County Commissioners on the
day of - - -_ 1 has approved this Agreemen��folr+
beautification of the Right of Way and has authorized the appropriate COUNTY officers to
execute this Agreement-, NOW, THEREFORE,
IN CONSIDERATION of the mutual terms, conditions, promises and covenants
hereinafter set forth, COUNTY and MUNICIPALITY agree as foi.!ows'
ARTICLE 1 - DEFINITIONS AND IDENTIFICATIONS
1.1 Agreement: Agreement shall mean this document, Articles I through 8, inclusive.
Other terms and conditions are included in the exhibits and documents that are expressly
incorporated by reference.
1.2 Board: Board shall mean the Broward County Board of County Commissioners.
1.3 Contract Administrator: Contract Administrator shall mean the Director of Highway
Construction and Engineering Division or the designee of such Director. The primary
responsibilities of the Contract Administrator are to coordinate and communicate with
MUNICIPALITY and to manage and supervise execution and completion of the terms and
conditions of this Agreement as set forth herein, In the administration of this Agreement,
as contrasted with matters of policy, all parties may rely on the instructions or
determinations made by the Contract Administrator, provided, however, that such
instructions and determinations do not change the Scope of Participation.
1.4 COUNTY: COUNTY shall mean Broward County, through the Board, a political
subdivision of the State of Florida.
1.5 County Attorney: County Attorney shall mean the chief legal counsel for COUNTY
who directs and supervises the Office of the County Attorney pursuant to Section 4.03 of
the Broward County Charter.
1.6 Division. Division shall mean the Broward County Highway Construction and
Engineering Division.
1.7 Landscape: Landscape or Landscaping shall mean living plant materials such as
grasses, and trees or palms and nonliving durable materials commonly used in
environmental design such as, but not limited to curbing,. rocks, pebbles, sand, paving,
decorative pavers, pump systems, grading and irrigation systems as authorized by this
Agreement and pursuant to Exhibit B.
1.8 MUNICIPALITY: MUNICIPALITY shall mean the City of Tamarac, a municipal
corporation of the State of Florida.
1.9 Plans: Plans shall mean the construction documents and specifications depicting
and defining the Project including but not limited to the materials to be installed within the
3
Property all as described in Exhibit B.
1 - 10 Project: Project shall mean the participation described in Article 2.
1. 11 Property: Property shall mean the beautified Right of Way described in Exhibit A.
ARTICLE 2 - SCOPE OF PARTICIPATION
COUNTY and MUNICIPALITY shall participate in the beautification of the Right of
Way in the manner set forth in this Agreement.
2.1 MUNICIPALITY shall:
2.1.1 MUNICIPALITY shall make application to the Division for a permit or cause
application to be made for a permit, for the installation of the landscaping set forth in
the Plans which have previously been approved by COUNTY. Installation of the
Landscaping authorized by this Agreement shall not proceed until the Division
permit(s) has/have been issued and permit conditions for commencement of
construction have been satisfied.
2.1.2 Once conditions for commencement of construction have been satisfied and
construction has commenced, MUNICIPALITY shall complete to the satisfaction of
the Contract Administrator, all construction in accordance with this Agreement,
applicable provisions of the Broward County Minimum Standards and the Division
permit.
2A.3 At MUNICIPALITY's sole cost and expense, install and maintain, or cause to
have installed and maintained, consistent with prudent and well reasoned
installation and maintenance procedures and techniques, all Landscaping within the
Right of Way in a manner that will not pose a hazard to persons or vehicles on
adjacent property or the R i ight of Way, in accordance with the Plans, and install an
automatic irrigation system.
2.1.4 Provide signed and sealed certified as -built drawings detailing the pertinent
information regarding the installation, per the Plans, prior to requesting a final
inspection from the Contract Administrator.
2.1.5 Properly maintain and fertilize all vegetation; keep all vegetation as free from
disease and harmful insects as practicable; properly mulch the vegetation beds,
keeping them free from weeds; periodically mow the grass in order to maintain a
neat and proper appearance; prune all plants so as to remove all dead or diseased
parts of plants and all parts of plants which present a visual hazard or physical
obstacle to the use of the Right of Way; remove and replace all vegetation which is
dead or diseased or which otherwise falls below the initial level of beautification of
the Right of Way and keep litter removed from the Right of Way. Any replacement
of vegetation as required herein,. shall be accomplished by the use of plants of the
4
same grade as specified in the original Plans and shall be of the same size as those
existing at the time of replacement or with a mutually agreed upon substitution.
2.1.6 Not by its use or occupancy cause damage to the Property.
2.1.7 Give the COUNTY, or �ts agent, prompt written notice asset forth in Article 5
of any occurrence, incident or accident occurring on the Property.
2,2 COUNTY shall:
221 Upon receipt of a completed application for permit and the approved Plans,
by the Contract Administrator, review the application for completeness and either
reject the application or process the application for issuance of the permit.
2.2.2. Reserve the right to inspect and reject work which does not meet the
requirements of the Plans.
2.2.3 After receiving the signed and sealed certified as -built drawings detailing the
pertinent information regarding the installation per the Plans and request for a final
inspection the Contract Administrator and other interested parties, perform a final
inspection.
2.2.4 Upon receipt of all paperwork and completion of all inspection, through the
Contract Administrator notify MUNICIPALITY as to the status of the Project.
2.2.5 Have no further obligation except as otherwise specifically set forth herein
2.3 COUNTY and MUNICIPALITY agree that all improvements placed upon the
Property shall remain the property of MUNICIPALITY, and shall be placed upon the
Property at the risk of MUNICIPALITY.
2�4 COUNTY and MUNICIPALITY agree and understand that this Agreement does not
change the County road functional classification.
ARTICLE 3 - TERM AND TERMINATION
3.1 The term of this Agreement shall begin on the date it is fully executed by both
parties and shall terminate as provided for by Sections 3.2 through 3.7 herein below.
3.2 This Agreement may be terminated for cause by COUNTY, through action of the
Board if the MUNICIPALITY has not corrected the breach within thirty (30) day of written
notice given by the COUNTY to the MUNICIPALITY setting forth the breach. If
MUNICIPALITY corrects the breach within thirty (30) days after written notice of same, to
the sole satisfaction of the COUNTY, the Agreement shall remain in full force and effect. If
such breach is not corrected and improved within thirty (30) days of receipt of notice of
breach, the COUNTY may terminate the Agreement. Specifically in the case of
5
MUNICIPALITY's requirement to maintain the beautified Right of Way, COUNTY, at the
option of the Contract Administrator, may cause such breach to be corrected and improved
and bill MUNICIPALITY forthe costs of such correction and improvement orterminate this
Agreement. If COUNTY opts to correct and improve the breach and bill MUNICIPALITY for
same, MUNICIPALITY shall then remit to COUNTY the amount so billed within thirty (30)
days of MUNICIPALITY's receipt thereof.
3.3 Termination of this Agreement for cause shall include, but not be limited to failure of
the MUNICIPALITY to suitably perform the services required by Article 2 herein, failure of
the MUNICIPALITY to maintain the beautified Right of Way pursuant to the terms of this
Agreement, and failure of the MUNICIPALITY to continuously perform the services
required by the terms and conditions of this Agreement in a manner calculated to meet or
accomplish the objectives set forth herein, notwithstanding whether any such breach was
previously waived or cured.
3.4 This Agreement may be terminated for convenience by COUNTY upon thirty (30)
day written notice given by COUNTY to MUNICIPALITY. This Agreement may also be
terminated by County's Contract Administrator upon such notice as Contract Administrator
deems appropriate in the event that the Contract Administrator determines that termination
is necessary to protect the public health, safety, or welfare.
3.5 In the event this Agreement is terminated for convenience, upon being notified of
election to terminate, the parties shall refrain from performing further services or incurring
additional expenses under the terms of this Agreement. MUNICIPALITY acknowledges
and agrees that ten dollars ($10.00), the adequacy of which is hereby acknowledged by
MUNICIPALITY, is given as specific consideration to MUNICIPALITYfor County's right to
terminate this Agreement for convenience.
3.6 Notice of termination shall be provided in accordance with the Article 5, NOTICES,
except that notice of termination by Contract Administrator which Contract Administrator
deems necessary to protect the public health, safety, or welfare may be verbal notice which
shall be promptly confirmed in writing in accordance with Article 5, NOTICES.
37 In the event this AgreerrIent is terminated, or upon being notified of COUNTY's
election to terminate, MUNICIPALITY shall obtain a Division permit and remove from the
Property, at MUNICIPALITY'S sole expense, anything placed upon it unless COUNTY, in
writing, authorizes MUNICIPALITY to leave any landscaping or improvements on the
Property
3.7.1 MUNICIPALITY shall peaceably surrender and deliver the Property to the
COUNTY, or its agents immediately upon termination of this Agreement.
3.7.2 COUNTY shall have no obligation to remove, relocate, reinstall, replace, orin
anyway compensate MUNICIPALITY for any loss resulting from or arising out of the
termination of this Agreement, the requirement to remove improvements or
landscaping, or the removal of the same by the COUNTY upon failure of the
A
MUNICIPALITY to restore the Property.
3.7.3 MUNICIPALITY agrees to return the P,mperty to safe condition following
removal of any i m,,,,) rove ments or landscaping.
3_7A MUNICIPALITY shall be obligated to repair or pay for any damage to
COUNTY property resulting from the removal of landscaping or improvements.
3.7.5 If mitigation is required as a result of termination, MUNICIPALITY shall obtain
a Broward County Department of Planning and Environmental Protection license
pertaining to Chapter 27, Article XIV, Sections 401 through 430 of the Broward
County Tree Preservation and Abuse Ordinance, as last amended, to provide for
relocation, removal and replacement per the tree removal license requirements at
MUNICIPALITY's sole cost and expense.
ARTICLE 4 - CHANGES IN SCOPE OF PARTICIPATION
Any change to the Scope of Participation must be accomplished by a written
amendment, executed by the parties in accordance with Section 8.11 below.
ARTICLE 5 - NOTICES
Whenever either party desires to give notice to the other, such notice must be in
writing, sent by certified United States Mail, postage prepaid, return receipt requested, of
by hand -delivery with a request for a written receipt of acknowledgment of delivery,
addressed to the party for whom it is intended at the place last specified. The place for
giving notice shall remain the same as set forth herein until changed in writing in the
manner provided in this section. For the present, the parties designate the following:
FOR BROWARD COUNTY:
Director, Highway Construction
and Engineering Division
One North University Drive
Suite 300B
Plantation, Florida 33324-2038
rej kla Tj [1] 41 1100] =11 A M
Director of Public Works
6011 Nob Hill Road
Tamarac, Florida 33321-2401
ARTICLE 6 - INDEMNIFICATION
6.1 MUNICIPALITY is a state agency or political subdivision as defined in Chapter
768-28, Florida Statutes, and agrees to be fully responsible for acts and omissions of its
agents or employees to the extent permitted by law. Nothing herein is intended to serve as
a waiver of sovereign immunity by any party to which sovereign immunity may be
applicable. Nothing herein shall be construed as consent by a state agency or political
subdivision of the State of Florida to be sued by third parties in any matter arising out of
this Agreement or any other contract.
VA
6.2 In the event that MUNICIPALITY contracts with a third party to provide the services
set forth herein, addressed herein above, any contract with such third party shall include
the following provisions:
6.2.1 Indemnification: MUNICIPALITY's contractor shall at all times hereafter
indemnify, hold harmless and, at County Attorney's option, defend or pay for an
attorney selected by County Attorney to defend COUNTY, its officers, agents,
servants, and employees against any and all claims, losses, liabilities, and
expenditures of any kind, including attorney fees, court costs, and expenses,
caused by negligent act or omission of MUNICIPALITY's contractor, its employees,
agents, servants, or officers, or accruing, resulting from, or related to the subject
matter of this Agreement including, without limitation, any and all claims, demands,
or causes of action of any nature whatsoever resulting from injuries or damages
sustained by any person or property. The provisions of this section shall survive the
expiration or earlier termination of this Agreement. To the extent considered
necessary by Contract Administrator and County Attorney, any sums due
MUNICIPALITY's contractor under this Agreement may be retained by
MUNICIPALITY and/or COUNTY until all of COUNTY's claims for indemnification
pursuant to this Agreement have been settled or otherwise resolved; and any
amount withheld shall not be subject to payment of interest by MUNICIPALITY and/
or COUNTY.
6.2.2 In order to insure the indemnification obligation MUNICIPALITY's contractor
shall, at a minimum, provide, pay for, and maintain in force at all times during the
term of this Agreement (unless otherwise provided), the insurance coverages set
forth in Article 7, Section 7.2, in accordance with the terms and conditions required
by this Article.
6.2.3 The policies referred to in Section 6.2.2 herein above shall be without any
deductible amount and shall be issued by United States Treasury approved
companies authorized to do business in the State of Florida, and having agents
upon whom service of process may be made in Broward County, Florida.
ARTICLE 7 - INSURANCE
71 MUNICIPALITY is an entity subject to Section 768,28, Florida Statutes, and
MUNICIPALITY shall furnish Contract Administrator with written verification of liability
protection in accordance with state law prior to final execution of said agreement.
7.2 In the event that MUNICIPALITY contracts with a third party to provide the services
set forth herein, any contract with such third party shall include the following provisions:
7.2.1 Insurance: MUNICIPALITY's contractor shall at all times during the term of
this Agreement keep and maintain in full force and effect, at contractor's sole cost
and expense, Comprehensive General Liability with minimum limits of $500,000.00
per occurrence combined single limit for Bodily Injury Liability and Property Damage
Liability and Workers' Compensation insurance with minimum limits of $100,000.00
per occurrence combined single limit for Bodily Injury Liability and Property Damage
Liability. Coverage must be afforded on a form no more restrictive tnan the latest
edition of the Comprehensive General Liability and Workers Compersation policy,
without restrictive endorsements, as filed by the Insurance Services OfFice and shall
name COUNTY and Broward County Board of County Commissiiners as an
additional insured. and shall name COUNTY and Broward County Board of County
Commissioners as an additional insured.
7.2.2 MUNICIPALITY's contractor shall furnish to the Contract Administrator
Certificates of Insurance or Endorsements evidencing the insurance coverages
specified by this Article prior to the beginning performance of work under this
Agreement.
7.2.3 Coverage is not to cease and is to remain in full force and effect (subject to
cancellation notice) until all performance required of MUNICIPALITY's contractor is
completed. All policies must be endorsed to provide COUNTY with at least thirty
(30) days' notice of cancellation and/or restriction. If any of the insurance
coverages will expire prior to the completion of the work, copies of renewal policies
shall be furnished at least thirty (30) days prior to the date of their expiration.
ARTICLE 8 - MISCELLANEOUS
8.1 AUDIT RIGHT AND RETENTION OF RECORDS, COUNTY shall have the right to
audit the books, records, and accounts of MUNICIPALITY that are related to this Project.
MUNICIPALITY shall keep such books, records, and accounts as may be necessary in
order to record complete and correct entries related to the Project. MUNICIPALITY shall
preserve and make available, at reasonable times for examination and audit by COUNTY,
all financial records, supporting documents, statistical records, and any other documents
pertinent to this Agreement for the required retention period of the Florida Public Records
Act (Chapter 119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not
applicable, for a minimum period of three (3) years after termination of this Agreement. If
any audit has been initiated and audit findings have not been resolved at the end of the
retention period or three (3) years, whichever is longer, the books, records, and accounts
shall be retained until resolution of the audit findings. If the Florida Public Records Act is
determined by COUNTY to be applicable to MUNICIPALITY's records, MUNICIPALITY
shall comply with all requirements thereof; however, no confidentiality or non -disclosure
requirement of either federal or state law shall be violated by MUNICIPALITY. Any
incomplete or incorrect entry in such books, records, and accounts shall be a basis for
COUNTY's disallowance and recovery of any payment upon such entry.
8.2 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND
AMERICANS WITH DISABILITIES ACT. MUNICIPALITY shall not unlawfully discriminate
against any person in its operations and activities or in its use or expenditure of funds in
fulfilling its obligations under this Agreement. MUNICIPALITY shall affirmatively comply
we
with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of
providing any services funded by COUNTY, including Titles I and 11 of the ADA (regarding
nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and
standards. In addition, MUNICIPALITY shall take affirmative steps to ensure
nondiscrimination in employment against disabled persons. Such actions shall include, but
not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff, termination, rates of pay, other forms of compensation,
terms and conditions of employment, training (including apprenticeship), and accessibility.
8.2.1 MUNICIPALITY's decisions regarding the delivery of services under this
Agreement shall be made without regard to or consideration of race, age, religion,
color, gender, sexual orientation (Broward County Code, Chapter 162), national
origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lawfully used as a basis for service delivery.
8.2.2 MUNICIPALITY shall not engage in or commit any discriminatory practice in
violation of the Broward County Human Rights Act (Broward County Code,
Chapter 162) in performing any services pursuant to this Agreement.
8.3 THIRD PARTY BENEFICIARIES. Neither MUNICIPALITY nor COUNTY intend to
directly or substantially benefit a third party by this Agreement. Therefore, the parties
agree that there are no third party beneficiaries to this Agreement and that no third party
shall be entitled to assert a claim against either of them based upon this Agreement. The
parties expressly acknowledge that it is not their intent to create any rights or obligations in
any third person or entity under this Agreement,
8.4 ASSIGNMENT AND PERFORMANCE, Neither this Agreement nor any interest
herein shall be assigned, transferred, or encumbered by either party. MUNICIPALITY
represents that all persons delivering the services required by this Agreement have the
knowledge and skills, either by training, experience, education, or a combination thereof, to
adequately and competently perform the duties, obligations, and services set forth in the
Scoop of Participation and to provide and perform such services to COUNTY's satisfaction.
MUNICIPALITY shall perform its duties, obligations, and services under this Agreement in
a skillful and respectable manner. The quality of MUNICIPALITY's performance and all
interim and final product(s) provided to or on behalf of COUNTY shall be comparable to the
best local and national standards.
8.5 MATERIALITY AND WAIVER OF BREACH, COUNTY and MUNICIPALITY agree
that each requirement, duty, and obligation set forth herein is substantial and important to
the formation of this Agreement and, therefore, is a material term hereof. COUNTY's
failure to enforce any provision of this Agreement shall not be deemed a waiver of such
provision or modification of this Agreement. A waiver of any breach of a provision of this
Agreement shall not be deemed a waiver of any subsequent breach and shall not be
construed to be a modification of the terms of this Agreement.
&6 COMPLIANCE WITH LAWS. MUNICIPALITY shall comply with all federal, state,
10
and local laws, codes, ordinances, rules, and regulations in performing its duties,
responsibilities, and obligations pursuant to this Agreement.
8,7 SEVERANCE. In the event a portion of this Agreement is found by a court of
competent jurisdiction to be invalid, the remaining provisions shall continue to be effective
unless COUNTY or MUNICIPALITY elects to terminate this Agreement. An election to
terminate this Agreement based upon this provision shall be made within seven (7) days
after the finding by the court becomes final.
8.8 JOINT PREPARATION, The parties acknowledge that they have sought and
received whatever competent advice and counsel as was necessary for them to form a full
and complete understanding of all rights and obligations herein and that the preparation of
this Agreement has been theirjoint effort. The language agreed to expresses their mutual
intent and the resulting document shall not, solely as a matter of judicial construction, be
construed more severely against one of the parties than the other.
8.9 PRIORITY OF PROVISIONS. If there is a conflict or inconsistency between any
term, statement, requirement, or provision of any exhibit aftached hereto, any document or
events referred to herein, or any document incorporated into this Agreement by reference
and a term, statement, requirement, or provision of this Agreement, the term, statement,
requirement, or provision contained in Articles 1 through 8 of this Agreement shall prevail
and be given effect.
8.10 APPLICABLE LAW AND VENUE. This Agreement shall be interpreted and
construed in accordance with and governed by the laws of the State of Florida. Any
controversies or legal problems arising out of this Agreement and any action involving the
enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction
of the State courts of the Seventeenth Judicial Circuit of Broward County, Florida, the
venue situs, and shall be governed by the laws of the State of Florida. To encourage
prompt and equitable resolution of any litigation that may arise hereunder, each party
hereby waives any rights it may have to a trial by jury of any such litigation.
8.11 AMENDMENTS. No modification, amendment, or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document
prepared with the same or similar formality as this Agreement and executed by the Board
and MUNICIPALITY.
8.12 PRIOR AGREEMENTS. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable
to the matters contained herein and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are
not contained in this document. Accordingly, the parties agree that no deviation from the
terms hereof shall be predicated upon any prior representations or agreements, whether
oral or written. It is further agreed that no modification, amendment or alteration in the
terms or conditions contained herein shall be effective unless set forth in writing in
accordance with Section 8.11 above.
8.13. INCORPORATION BY REFERENCE. The truth and accuracy of each Whereas
clause set forth above is acknowledged by the parties, The attached exhibits are
incorporated into and made a part of this Agreement.
8.14 MULTIPLE ORIGINALS. This Agreement maybe fully executed in five (5) copies by
all parties, each of which, bearing original signatures, shall have the force and effect of an
original document.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the parties have made and executed this Agreement on
the respective dates Under each signature- BROWARD COUNTY through its BOARD OF
COUNTY COMM! SSIONERS, signing by and through its Mayor or Vice Mayor, authorized
to execute same by Board action and MUNICIPALITY of the City of Tamarac, signing by
and through its 113'ity Commission, duly authorized to execute same.
ATTEST:
County Administr tor and
Ex-Officio Clerk of the
Board of County Commissioners
of Broward County, FIqrjqa
(�PE TF
;T. 1 iT
COUNTY
BROWARD COUNTY, through its
BOARD OF COUNTY COMMISSIONERS
B
mayor
7&zday of 200-'57
Approved as to form by
Office of County Attorney
Broward County, Florida
EDWARD A. DION, County Attorney
Governmental Center, Suite 423
115 South Andrews Avenue
Fort Lauderdale, Florida 33301
Telephone: (954) 357-7600
Telecopier: (954)�357.-6968
B
Pa�nela M. Kane
Assistant County Attorney
/day of
191
1200
AGREEMENT BETWEEN BROWARD COUNTY
RIGHT OF WAY BEAUTIFICATION FOR
UNIVERSITY DRIVE TO S.W. 83'd AVENUE
FOR THE CITY OF TAMARAC:
ATTEST. -
By:
Marion Swenson, CMC, City Clerk
STATE OF FLORIDA
Ss
COUNTY OF kujovA
1A
AND THE CITY OF TAMARAC FOR
McNAB ROAD MEDIANS FROM
7 Joe Schreiber, Mayor
Date:
By: Jeff e'y L. giller, City Manager
Date'. 5-
/Y/
me
By:
Sa
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, personally appeared
Milletto me known to be the person(s) described in and
who executed the foregoirig instrument and ffie,. �j acknowledged before me and
under oath that Oic!4 executed the same.
4
WITNESS my hand and official seal this _Lj_ day of ry) 0�
2005.
Personally known to me, or
Produced identification
_M 1��4� - ___
NOVARY PU13LIC, State of Florida
at Large
mamn seq*m
-1 rel:lh� My Comamison DOM279
TJ: Print, Stamp,
or Type as Commissioned)
Type of I.D. Produced
( ) DID take an oath, or ( LI'DID NOT take an oath
14
EXHIBIT "A"
LEGAL DESCRIPTION OF RIGHT-OF-WAY TO BE IMPROVED
The medians within the McNab Road Right -Of -Way from University Drive to S.W.
83 Id Avenue
06i
EXHIBIT "B"
Plans, for landscaping, etc. improvements proposed to be installed within the property,
described in Exhibit A and which are on file with the Broward County Highway Construction
and Engineering Division under Project Reference No. 0 60 6 17 0 01 —
13mayO5
16