HomeMy WebLinkAboutCity of Tamarac Resolution R-2018-066Structure No.: 221T10 — 222T2; 141T3—141T1; 222T10 — 223T2; 140T2 —139T9
Section, Township, Range: 31-32, 48S, 41E; 06, 49S, 41E
Easement No.: s00200320
Parcel ID: 484132000020
(Maintained by County Appraiser)
RIGHT-OF-WAY CONSENT AGREEMENT
(Governmental Entity)
FLORIDA POWER & LIGHT COMPANY, a Florida corporation ("Company"), with a mailing
address at P.O. Box 14000, Juno Beach, Florida 33408-0420, Attn: Corporate Real Estate Department,
hereby consents to the City of Tamarac ("Licensee"), whose mailing address is 7525 NW 88th Avenue
Tamarac, FL 33321 using that certain area within Company's right-of-way granted by that certain agreement
recorded in Official Record Book 4010, at Page 477, Public Records of Broward County, Florida, as more
particularly described on Exhibit A attached hereto ("Lands"). The use of the Lands by Licensee shall be
solely for the purposes of wet retention ponds as approved by Company in advance and shown on the plans
and specifications to be submitted by Licensee to Company for Company's review and approval after the
effective date hereof. Preliminary conceptual plans of the wet retention ponds are attached hereto as Exhibit
B; provided however, Licensee acknowledges and agrees that it shall not use the Lands or commence any
construction thereon until such time as Company has approved Licensee's final plans and specifications,
which such approval shall be in Company's sole but reasonable discretion. Once the Company has approved
said final plans and specifications ("Approval Date"), a copy of same shall be attached to this Right -of -Way
Consent Agreement (Governmental Entity) ("Agreement") as Exhibit B to replace the preliminary
conceptual plans.
In consideration for Company's consent and for the other mutual covenants set forth below, and for
Ten Dollars ($10.00) and other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Licensee agrees to obtain all necessary rights from the owners of the Lands in the event
Licensee does not own said Lands; to obtain any and all applicable federal, state, and local permits required
in connection with Licensee's use of the Lands; and at all times, to comply with all requirements of all
federal, state, and local laws, ordinances, rules and regulations applicable or pertaining to the use of the Lands
by Licensee pursuant to this Agreement.
2. Licensee understands and agrees that the use of the Lands pursuant to this Agreement is
subordinate to the rights and interest of Company in and to the Lands and agrees to notify its employees,
agents, and contractors accordingly. Company specifically reserves the right to maintain its facilities located
on the Lands; to make improvements; add additional facilities; maintain, construct or alter roads; maintain
any facilities, devices, or improvements on the Lands which aid in or are necessary to Company's business or
operations; and the right to enter upon the Lands at all times for such purposes. Licensee understands that in
the exercise of such rights and interest, Company from time -to -time may require Licensee, to relocate, alter,
or remove its facilities and equipment, including parking spaces and areas, and other improvements made by
Licensee pursuant to this Agreement which interfere with or prevent Company, in its opinion, from properly
and safely constructing, improving, and maintaining its facilities. Licensee agrees to relocate, alter, or
remove said facilities, equipment, parking spaces and areas, and other improvements within thirty (30) days
of receiving notice from Company to do so. Such relocation, alteration, or removal will be made at the sole
cost and expense of Licensee and at no cost and expense to Company; provided however, should Licensee,
for any reason, fail to make such relocation, alteration, or removal, Company retains the right to enter upon
the Lands and make said relocation, alteration, or removal of Licensee's facilities, equipment, parking spaces
and areas, and other improvements and Licensee hereby agrees to immediately reimburse Company for all of
its costs and expense incurred in connection therewith upon demand.
100228851.1 2704-0501640}
Form 3740GROW Rev. 09/22/I5
Pale 1 of 5
3. Licensee agrees that it will not use the Lands in any manner which, in the opinion of
Company, may tend to interfere with Company's use of the Lands or may tend to cause a hazardous
condition to exist. Licensee agrees that no hazardous substance, as the term is defined in Section 101 (14) of
the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") (42 USC
Section 9601 [14]), petroleum products, liquids or flammables shall be placed on, under, transported across or
stored on the Lands, which restricts, impairs, interferes with, or hinders the use of the Lands by Company or
the exercise by Company of any of its rights thereto. Licensee agrees further that in the event it should create
a hazardous condition, then upon notification by Company, Licensee shall, within seventy-two (72) hours, at
its sole cost and expense, correct such condition or situation; provided however that the Company retains the
right to enter upon the Lands and correct any such condition or situation at any time and, by its execution
hereof, Licensee hereby agrees to indemnify and hold harmless Company from all loss, damage or injury
resulting from Licensee's failure to comply with the provisions of this Agreement.
4. Licensee hereby agrees and covenants to prohibit its agents, employees, and contractors
from using any tools, equipment, or machinery on the Lands capable of extending greater than fourteen (14)
feet above existing grade and further agrees that no dynamite or other explosives shall be used within the
Lands and that no alteration of the existing terrain, including the use of the Lands by Licensee as provided
herein, shall be made which will result in preventing Company access to its facilities located within said
Lands. Unless otherwise provided herein, Licensee agrees to maintain a one hundred and fifty (150) foot
wide area, clear of any activities, with a lineal measurement of seventy-five (75) feet on each side of the
centerline of Company's existing and planned facilities.
5. Licensee understands and agrees that the planting of trees, shrubs, and other foliage capable
of exceeding fourteen (14) feet in height at full maturity is not permitted within Company's Lands.
6. Outdoor lighting installed or to be installed upon the Lands by Licensee are not to exceed a
height of fourteen (14) feet above existing grade and all poles or standards supporting light fixtures are to be
of a non-metallic material.
7. Sprinkler systems installed or to be installed by Licensee upon the Lands are to be
constructed of a non-metallic material and sprinkler heads are to be set so the spray height does not exceed
fourteen (14) feet above existing grade and does not make contact with any Company's facilities.
Aboveground systems shall not be installed within or across Company patrol or finger roads and underground
systems crossing said patrol and finger roads are to be buried at a minimum depth of one (1) foot below
existing road grade.
8. Licensee agrees to warn its employees, agents, contractors and invitees of the fact that the
electrical facilities and appurtenances installed or to be installed by Company within the Lands are of high
voltage electricity and agrees to use all safety and precautionary measures when working under or near
Company's facilities. Licensee hereby acknowledges the receipt and required execution of Form 360, a copy
of which is attached hereto as Exhibit C, prior to the commencement of any construction within the Lands.
9. Licensee agrees, at all times, to maintain and keep the Lands clean and free of debris.
Except as provided herein, Licensee further understands and agrees that certain uses of the Lands are
specifically prohibited; such uses include but are not limited to recreational purposes, hunting and camping,
and Licensee agrees to notify its employees, agents, contractors, and invitees accordingly.
10. The use of the Lands by Licensee shall be at the sole risk and expense of Licensee, and
Company is specifically relieved of any responsibility for damage or loss to Licensee or other persons
resulting from Company's use of the Lands for its purposes.
(00228851.1 2704-0501640)
Form 3740GROW Rev. 09/22/15
Page 2 of 5
11. Notwithstanding any provision contained herein to the contrary, Licensee agrees to
reimburse Company for all cost and expense for any damage to Company's facilities resulting from
Licensee's use of the Lands and agrees that if, in the opinion of Company, it becomes necessary as a result of
Licensee's use of the Lands for Company to relocate, rearrange or change any of its facilities, to promptly
reimburse Company for all cost and expense involved with such relocation, rearrangement or change.
12. Licensee agrees it will exercise its privileges hereunder at its own sole risk and agrees
subject to the limitations contained in Section 768.28, Florida Statutes, if applicable, to indemnify and save
harmless Company, its parent, subsidiaries, affiliates, and their respective officers, directors, agents and
employees (collectively, the "FPL Entities"), from all liability, loss, cost, and expense, including attorneys'
and paralegals' fees and court costs at all trial and appellate levels, which may be sustained by FPL Entities to
any person, natural or artificial, by reason of the death of or injury to any person or damage to any property,
arising out of or in connection with the herein described purposes by Licensee, its contractors, agents, or
employees; and Licensee agrees subject to the limitations contained in Section 768.28, Florida Statutes, if
applicable, to defend at its sole cost and expense and at no cost and expense to FPL Entities any and all suits
or action instituted against FPL Entities, for the imposition of such liability, loss, cost and expense.
13. Licensee shall, and shall cause each of Licensee's contractors and subcontractors
performing work in connection with the project during the period of this Agreement, to procure and
maintain at Licensee's and such contractors' and subcontractors' sole expense, the following minimum
insurance, (i) General Liability insurance with limits of $3,000,000 for bodily injury or death of person(s)
and property damage per occurrence, which shall insure against obligations assumed by Licensee in
indemnity provision set forth in Section 12 above, (ii) Workers' Compensation Insurance for statutory
obligations imposed by applicable laws, (iii) Employers' Liability Insurance with limits of $1,000,000 for
bodily injury per accident, by disease per policy and disease per employee and, (iv) Automobile Liability
Insurance which shall apply to all owned, non -owned, leased and hired automobiles with limits of
$1,000,000 combined single limit. Except for the Workers' Compensation Insurance. Upon execution of
this Agreement, License shall provide evidence of the required insurance coverage in the form of an
ACORD certificate to Company evidencing that said policy of insurance is in force and will not be
cancelled or non -renewed so as to affect the interests of Company until thirty (30) days written notice has
been furnished to Company. Upon request, copies of policies will be furnished to Company by Licensee.
Licensee understands and agrees that the use of the Lands for the purposes described herein is expressly
contingent upon acceptance and compliance with the provisions contained herein.
Licensee shall be responsible for managing and administering all insurance policies required hereunder,
including the payment of all deductibles and self -insured retention amounts, the filing of all claims and
the taking of all necessary and proper steps to collect any proceeds on behalf of the relevant insured
person or entity. Licensee shall at all times keep Company informed of the filing and progress of any
claim. If Licensee shall fail to perform these responsibilities, Company may take such action as it
determines appropriate under the circumstances. In the event Licensee collects proceeds on behalf of
other persons or entities, it shall ensure that these are paid directly from the insurers to the relevant person
or entity and, in the event that it receives any such proceeds, it shall, unless otherwise directed by
Company, pay such proceed to such party forthwith and prior thereto, hold the same in trust for the
recipient.
Nothing in this Section shall be deemed to limit Licensee's liability under this Agreement regardless of
the insurance coverages required hereunder. No limitation of liability provided to Licensee under this
Agreement is intended nor shall run to the benefit of any insurance company or in any way prejudice,
alter, diminish, abridge or reduce, in any respect, the amount of proceeds of insurance otherwise payable
to Company under coverage required to be carried by Licensee under this Agreement, it being the intent
of the parties that the full amount of insurance coverage bargained for be actually available
notwithstanding any limitation of liability contained in this Agreement, if any. Company assumes no
(00228851.1 270"5016401
Form 3740GROW Rev. 09/22/15
Page 3 of 5
responsibility for the solvency of any insurer or the failure of any insurer to settle any claim. In the event
that the Licensee self -insures, Licensee shall provide Company with a letter of self-insurance in form and
substance satisfactory to Company's Risk Management Department. Licensee's contractors and sub-
contractors may not self- insure. This Section shall survive the expiration or earlier termination of this
Agreement
14. This Agreement will become effective upon execution by Company and Licensee and will
remain in full force and effect until completion of Licensee's use of the Lands pursuant to this Agreement,
unless earlier terminated upon ninety (90) days written notice by Company to Licensee, or at the option of
Company, immediately upon Licensee failing to comply with or to abide by any or all of the provisions
contained herein.
15. The use granted herein as shown on the final approved plans and specifications to be
attached hereto as replacement Exhibit B shall be under construction by Licensee within one (1) year after
the Approval Date and the construction shall be diligently pursued to completion. Licensee shall give
Company ten (10) days prior written notice of its commencement of construction. "Under construction"
means the continuous physical activity of placing the foundation or continuation of construction above the
foundation of any structure or improvement permitted hereunder. Under construction does not include
application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate
local government agency having jurisdiction over the activity, purchasing construction materials, placing
such construction materials on the site, clearing or grading the site (if permitted) in anticipation of
construction, site surveying, landscaping work or reactivating construction after substantially all construction
activity has remained stopped for a period of two (2) months or more. Licensee acknowledges that failure to
have the use under construction within the one (1) year time period will result in immediate termination of
this Agreement in accordance with Section 14 above for failing to comply with the provisions contained
herein unless Company grants a written extension for a mutually agreed upon time. Any request for an
extension of time shall be submitted in writing by Licensee no later than thirty (30) days prior to the
expiration of the one (1) year period for the project to be under construction.
16. The term "Licensee" shall be construed as embracing such number and gender as the
character of the party or parties require(s) and the obligations contained herein shall be absolute and primary
and shall be complete and binding as to each, including its successors and assigns, upon this Agreement being
executed by Licensee and subject to no conditions precedent or otherwise.
17. In the event any term or provision of this Agreement is determined by appropriate judicial
authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be
construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to
be in full force and effect.
18. In the event of any litigation arising out of enforcement of this Agreement, the prevailing
party in such litigation shall be entitled to recovery of all costs, charges and expenses of enforcement,
including reasonable attorneys' and paralegals' fees and court costs at all trial and appellate levels.
19. This Agreement constitutes the entire Agreement between the parties relative to the
transaction contemplated herein and neither this Agreement nor any term or provision hereof may be changed
or waived except by an instrument in writing and executed by both Licensee and Company.
20. This Agreement shall be interpreted and enforced in accordance with the laws of the State of
Florida.
21. This Agreement may be executed simultaneously or in counterparts, each of which together
shall constitute one and the same agreement.
(00229851.1 2704-0501640)
Paae 4 of 5
Form 3740GROW Rev. 09/22/15
22. This Agreement shall not be construed more strictly against one party than against the other,
merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being
recognized that both Licensee and Company have contributed substantially and materially in the negotiation
and preparation of this Agreement, and that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or
any exhibits, schedules, addendums or amendments hereto.
23. Licensee may assign its rights and obligations under this Agreement to a solvent party upon
prior written consent of Company.
24. Licensee agrees that any review or approval by Company of the plans and/or specifications
submitted by Licensee attached hereto as Exhibit B, the approval of the identity of any contractors,
subcontractors and materialmen, or the delivery by Company of any construction specifications to Licensee,
is solely for the purpose of processing this Agreement, and without any representation or warranty
whatsoever to Licensee with respect to the adequacy, correctness or efficiency thereof or otherwise and it is
understood that such Company's approval does not absolve Licensee of any liability hereunder. Further,
Licensee, in connection with the construction, maintenance and/or removal of improvements depicted on
Exhibit B to this Agreement, agrees to observe and fully comply with all construction, operation and
maintenance standards, as well as all applicable laws, rules and regulations of the United States, the State of
Florida, and all agencies and political subdivisions thereof, including without limitation, the National
Electrical Safety Code and the Occupational Safety & Health Administration regulations, standards, rules,
registers, directives or interpretations.
The parties have executed this Agreement this 6 day of
20/ 1•
Witnesses:
Vkf9AAAA
f
�%" (b r 1E V--
Signature:
M1c
Print Name: 1te1teM.Ks�aam►
Signaturd: Wft Hull
Print Name:
Print Name:-�a(,'f K l—(/1 4 Or 1 / )
{00229851.1 2704-0501640)
COMPANY:
FLORID OWER & LIGHT COMPANY,
a Flori c oration
f- ,
By: Q/17tt2
Its: Corporate Real Estate Manager
Print Name: Samantha J. Saucier
LICENSEE:,_. --
City mara
Its: City Manager
Print Name: Michael C. Cernech
Page 5 of 5
�-� • (Corporate
Iasi g63 �
✓ �� ' •. ••1 14 t-0 W Rev.09/22/15
CO
111ij1lI110\
Exhibit "A"
To Right -of -Way Consent Agreement
All that portion of Florida Power & Light Company Easement recorded in Official Record
Book 4010, at Page 477 of the Public Records of Broward County, Florida lying within the
East 1,000 feet of the West 1,600 feet of Section 6, Township 49 South, Range 41 East,
the East 1,000 feet of the West 1,600 feet of Section 31, Township 48 South, Range 41
East, and the East 1,350 feet of the West 3,400 feet of Section 32, Township 48 South,
Range 41 East, all of the above said lands situate, lying and being in Broward County,
Florida.
No Text
Exhibit "C"
0
Customer/Agency
Developer/Contractor Name
Location of Project
FPL Representative
Developer/Contractor Representative
to Right —of —Way Consent Agreement
NOTIFICATION OF FPL FACILITIES
Date of Meeting/Contact:
Project Number/Name:
City:
Phone:
FPL Work Request #/Work Order #:
FPL calls your attention to the fact that there may be energized, high voltage electric lines, both overhead and underground, located in the area of this project. It is
imperative that you visually survey the area and that you also take the necessary steps to identify all overhead and underground facilities prior to commencing
construction to determine whether the construction of any proposed improvements will bring any person, tool, machinery, equipment or object closer to FPUs
power lines than the OSHA -prescribed limits. If it will, you must either re -design your project to allow it to be built safely given the pre-existing power line location,
or make arrangements with FPL to either deenergize and ground our facilities, or relocate them, possibly at your expense. You must do this before allowing any
construction near the power lines. It is impossible for FPL to know or predict whether or not the contractors or subcontractors, and their employees, will operate
or use cranes, digging apparatus or other mobile equipment, or handle materials or tools, in dangerous proximity to such power lines during the course of
construction, and, if so, when and where. Therefore, if it becomes necessary for any contractor or subcontractor, or their employees, to operate or handle cranes,
digging apparatus, draglines, mobile equipment, or any other equipment, tools or materials in such a manner that they might come closer to underground or
overhead power lines than is permitted by local, state or federal regulations, you and any such contractor or subcontractor must notify FPL in writing of such
planned operation prior to the commencement thereof and make all necessary arrangements with FPL in order to carry out the work in a safe manner. Any work
in the vicinity of the electric lines should be suspended until these arrangements are finalized and implemented.
The National Electrical Safety Code ("NESC") prescribes minimum clearances that must be maintained. If you build your structure so that those clearances cannot
be maintained, you may be required to compensate FPL for the relocation of our facilities to comply with those clearances. As such, you should contact FPL prior
to commencing construction near pre-existing underground or overhead power lines to make sure that your proposed improvement does not impinge upon the
NESC clearances.
It is your responsibility and the responsibility of your contractors and subcontractors on this project to diligently fulfill the following obligations:
1. Make absolutely certain that all persons responsible for operating or handling cranes, digging apparatus, draglines, mobile equipment or any
equipment, tool, or material capable of contacting a power line, are in compliance with all applicable state and federal regulations, including but
not limited to U.S. Department of Labor OSHA Regulations, while performing their work.
2. Make sure that all cranes, digging apparatus, draglines, mobile equipment, and all other equipment or materials capable of contacting a
power line have attached to them any warning signs required by U.S. Department of Labor OSHA Regulations.
3. Post and maintain proper warning signs and advise all employees, new and old alike, of their obligation to keep themselves, their tools,
materials and equipment away from power lines per the following OSHA minimum approach distances (refer to OSHA regulations for restrictions):
*Power Line Voltages
**Personnel and Equipment
Cranes and Derricks
(29 CFR 1910.333 and 1926.600)
(29 CFR 1926.1407, 1408)
0 - 750 volts
10 Feet
10 Feet
751 - 50,000 volts
10 Feet
10 Feet
69,000 volts
11 Feet
15 Feet
115,000 volts
13 Feet
15 Feet
138,000 volts
13 Feet
15 Feet
230,000 volts
16 Feet
20 Feet
Travel under or near Power Lines (on construction sites, no load)
(29 CFR 1926.600 — Equipment) (1926.1411 —Cranes and Derricks)
4 Feet 4 Feet
4 Feet
6
Feet
10 Feet
10
Feet
10 Feet
10
Feet
10 Feet
10
Feet
10 Feet
10
Feet
500,000 volts 25 Feet 25 Feet 16 Feet 16 Feet
*When uncertain of the voltage, maintain a distance of 20 feet for voltages up to 350,000 volts and 50 feet for voltages greater than 350,000 volts.
For personnel approaching insulated secondary conductors less than 750 volts, avoid contact (Maintain 10 Feet to bare energized conductors less than 750 volts). For
qualified personnel and insulated aerial lift equipment meeting requirements of 29 CFR 1910.333, distances may be reduced to those shown in 29 CFR 1910.333 Table S-5.
4. All excavators are required to contact the Sunshine State One Call of Florida, phone number 1-800-432-4770 or 811 a minimum of two working days
(excluding weekends) in advance of commencement of excavation to ensure facilities are located accurately.
5. Conduct all locations and excavations in accordance with the Florida Statute 556 of the Underground Facilities Damage Prevention & Safety Act and all
local city and county ordinances that may apply.
6. When an excavation is to take place within a tolerance zone, an excavator shall use increased caution to protect underground facilities.
The protection requires hand digging, pot holing, soft digging, vacuum methods, or similar procedures to identify underground facilities.
A copy of this notification must be provided by you to each contractor and subcontractor on this project, to be shared with their supervision and employees prior to
commencing work on this project.
Means by which this notification was provided to customer and/or contractor
FPL Representative Signature
Customer/Developer/Contractor Representative Signature
Form 360 (Rev. 1/9/12)
Address
Date
Date