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HomeMy WebLinkAboutCity of Tamarac Resolution R-2003-260Temp. Reso. #10214 September 16, 2003 1 Revision 1, November 5, 2003 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2003- .-)-6 U A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE AN AGREEMENT BETWEEN BROWARD COUNTY AND THE CITY OF TAMARAC FOR THE REIMBURSEMENT OF UTILITY REMOVAL COSTS ALONG PINE ISLAND ROAD FROM OAKLAND PARK BOULEVARD TO COMMERCIAL BOULEVARD; AUTHORIZING AN ESTIMATED EXPENDITURE OF $5,000.00 SUBJECT TO ACTUAL QUANTITIES AND BID PRICES; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Broward County plans to widen Pine Island Road from Oakland Park Boulevard to a point several blocks north of Commercial Boulevard in the City of Tamarac; and WHEREAS, the City of Tamarac owns abandoned utility pipelines containing asbestos that conflict with the proposed pipeline construction for this road widening project; and WHEREAS, it has been agreed that the most cost efficient method to eliminate the pipeline conflicts will be to use the County's contractor to remove only what is necessary; and WHEREAS, Craven, Thompson and Associates, the Broward County project consultants, have estimated the pipeline removal costs to be approximately $5,000.00; and WHEREAS, Broward County has submitted an agreement for execution by the City of Tamarac that will reimburse Broward County for the pipeline removal costs (a copy of which is included as "Exhibit 1"); and WHERAS, it is the recommendation of the Director of Utilities that the agreement providing reimbursement to Broward County for expenses estimated to be approximately $5,000.00 to remove Tamarac pipelines that conflict with proposed construction be approved, Temp. Reso. #10214 September 16, 2003 2 Revision 1, November 5, 2003 executed and funded; and WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in the best interest of the citizens and residents of the City of Tamarac to execute an agreement between Broward County and the City of Tamarac for the reimbursement of utility removal costs along Pine Island Road associated with Broward County Project 5121, for an estimated cost of $5,000.00 subject to actual quantities and bid prices to be funded from the appropriate Utilities Operational Account. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, THAT: 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 resolution. SECTION 2: The appropriate City Officials are hereby authorized to execute the agreement between Broward County and the City of Tamarac for the funding of utility removal along Pine Island Road from Oakland Park Boulevard to Commercial Boulevard hereto attached as Exhibit 1. SECTION 3: The estimated reimbursement expense of $5,000.00 is approved to be funded from the appropriate budgeted Utilities Operational account. SECTION 4: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 5: If any clause, section, other part or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. Temp. Reso. #10214 September 16, 2003 3 Revision 1, November 5, 2003 SECTION 6: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this 12th day of November, 2003. ATTEST: MARION SWENSON, CMC CITY CLERK I HEREBY CERTIFY that I have approved this RESOLUTION as to form. MITCHELL S. KRAFT CITY ATTORNEY REG/GW/mg 1 JOE SCHREIBER MAYOR RECORD OF COMMISSION VOTE: MAYOR SCHREIBER DIST 1: COMM. PORTNER DIST 2: COMM. FLANSBAUM-TALABISCO DIST 3: COMM. SULTANOF DIST 4: V/M ROBERTS, :. "EXHIBIT V TR #10214 AGREEMENT BETWEEN BROWARD COUNTY AND THE CITY OF TAMARAC FOR THE FUNDING OF UTILITY REMOVAL ALONG PINE ISLAND ROAD FROM OAKLAND PARK BOULEVARD TO COMMERCIAL BOULEVARD IN THE CITY OF TAMARAC AGREEMENT BETWEEN BROWARD COUNTY AND THE CITY OF TAMARAC FOR THE FUNDING OF UTILITY REMOVAL ALONG PINE ISLAND ROAD FROM OAKLAND PARK BOULEVARD TO COMMERCIAL BOULEVARD IN THE CITY OF TAMARAC. This is an Agreement, made and entered into by and between BROWARD COUNTY, a political subdivision of the State of Florida, through its Board of County Commissioners hereinafter referred to as "COUNTY," THE CITY OF TAMARAC, a municipal corporation organized and existing under the laws of the State of Florida, its successors and assigns, hereinafter referred to as "CITY." WITNESSETH WHEREAS, COUNTY plans to construct improvements on Pine Island Road from Oakland Park Boulevard to Commercial Boulevard in the City of Tamarac, hereinafter referred to as "Project;" and WHEREAS, COUNTY will solicit bids for the Project in accordance with County procedures and will procure a contractor to construct the Project; and WHEREAS, CITY owns abandoned utility lines containing asbestos which conflict with the Project drainage system and are required to be removed; and WHEREAS, CITY has agreed to fund the cost for the removal and disposal of the abandoned lines; NOW THEREFORE, IN CONSIDERATION, of the mutual terms, conditions, promises, covenants and payment hereinafter set forth, COUNTY and CITY agree as follows: ME ARTICLE 1 -SCOPE 1.1 CITY acknowledges that proper notice was provided by COUNTY regarding CITY's utility lines located within the Project's limits, as required by Sec. 337.403 and 337.404, Florida Statutes. 1.2 CITY acknowledges that certain CITY owned utility lines will conflict with proposed drainage pipes and/or structures contained within the Project's limits and that CITY has elected have the abandoned lines removed. 1.3 CITY acknowledges that CITY has requested COUNTY to remove the abandoned lines to accommodate the Project's drainage lines and/or structures and has agreed to reimburse COUNTY for the removal costs. 1.4 CITY acknowledges that the estimate for the cost of removal is Five Thousand and 00/100 Dollars ($5,000.00), and that the number and/or costs of removal may be greater, or less. COUNTY shall furnish CITY with a copy of the contract prices for removal as part of the Project. Following the start of construction of Project, COUNTY shall submit periodic invoices to CITY containing the contractor's charges for removal. CITY shall remit payment to COUNTY within thirty (30) calendar days of the date each invoice is transmitted. CITY shall be responsible for any claims asserted by contractor, arising from CITY's delay in remitting payment. In the event costs for removal are increased by change orders, approved by COUNTY, CITY shall reimburse COUNTYfor all such costs through periodic invoices. ARTICLE 2 - TERM AND TERMINATION 2.1 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 2.2 through 2.6 herein below. 2.2 This Agreement may be terminated for cause by COUNTY, through action of the Board, or by CITY, upon a thirty (30) day written notice given by the terminating party to the other party setting forth the breach. If CITY, or COUNTY, corrects the breach within thirty (30) days after written notice of same, to the satisfaction of the terminating party, 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 terminating party may terminate the Agreement. COUNTY, at the option of the Contract Administrator, may cause such breach to be corrected and improved and bill CITY for the costs of such correction and improvement or terminate this Agreement. If COUNTY opts to correct and improve the breach and bill CITY for same, CITY shall then remit to COUNTY the amount so billed within thirty (30) days of CITY's receipt thereof. 2.3 Termination of this Agreement for cause shall include, but not be limited to: failure of the parties to suitably perform the services required by Article 2 herein, failure of the parties to continuously perform the services required by the terms and conditions of this -2- Agreement in a manner calculated to meet or accomplish the objectives set forth herein, notwithstanding whether any such breach was previously waived or cured. 2.4 This Agreement may be terminated for convenience by either party upon a thirty (30) day written notice given by the terminating party to the other party. 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. 2.5 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. CITY acknowledges and agrees that ten dollars ($10.00), the adequacy of which is hereby acknowledged by CITY, is given as specific, consideration to CITY for COUNTY's right to terminate this Agreement for convenience. 2.6 Notice of termination shall be provided in accordance with the Article 6, "NOTICES," herein 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 4, "NOTICES," herein. ARTICLE 3 - CHANGES IN SCOPE OF SERVICES Any change to :the Scope of Services must be accomplished by a written amendment, executed by the parties in accordance with Section 7.11 below. ARTICLE 4 - 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: Diretor, Engineering Division One North University Drive, Suite 300B Plantation, Florida 33324-2038 FOR CITY: Jeffrey L. Miller, City Manager WITH COPY TO: Mitchell Kraft City of Tamarac City of Tamarac 7525 NW 88th Avenue 7525 NW 88th Avenue Tamarac, FL 33321 Tamarac, FL 33321 -3- ARTICLE 5 - INDEMNIFICATION CITY 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. ARTICLE 6 - INSURANCE 6. The parties hereto acknowledge that CITY is a self -insured governmental entity subject to the limitations of Section 768.28, Florida Statutes. The CITY 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, ARTICLE 7 - MISCELLANEOUS 7.1 AUDIT RIGHT AND RETENTION OF RECORDS. COUNTY shall have the right to audit the books, records, and accounts of CITY that are related to this Project. CITY shall keep such books, records, and accounts as may be necessary in order to record complete and correct entries related to the Project. CITY 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 CITY's records, CITY shall comply with all requirements thereof; however, no confidentiality or non -disclosure requirement of either federal or state law shall be violated by CITY. 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. 7.2 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND AMERICANS WITH DISABILITIES ACT. CITY 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. CITY 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 II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and ME standards. In addition, CITY 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. 7.2.1 CITY'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 161/2), 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. 7.2.2 CITY shall not engage in or commit any discriminatory practice in violation of the Broward County Human Rights Act (Broward County Code, Chapter 16'/2) in performing any services pursuant to this Agreement. 7.3 THIRD PARTY BENEFICIARIES, Neither CITY 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. 7.4 ASSIGNMENT AND PERFORMANCE. Neither this Agreement nor any interest herein shall be assigned, transferred, or encumbered by either party. CITY 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 setforth in the Scope of Services and to provide and perform such services to COUNTY's satisfaction for the agreed compensation. CITY shall perform its duties, obligations, and services under this Agreement in a skillful and respectable manner. The quality of CITY'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. 7.5 MATERIALITY AND WAIVER OF BREACH. COUNTY and CITY 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. 7.6 COMPLIANCE WITH LAWS. CITY 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. 1672 7.7 SEVERANCE. In the event a portion of this Agreement is found by a court of competentjurisdiction to be invalid, the remaining provisions shall continue to be effective unless COUNTY or CITY elects to terminate this Agreement. An election to terminate this Agreement based upon this provision shall be madewithin seven (7) days after the finding by the court becomes final. 7.8 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 their joint 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. 7.9 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 7 of this Agreement shall prevail and be given effect. 7.10 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. 7.11 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 CITY. 7.12 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 7.11 above. 7.13 INCORPORATION BY REFERENCE. The truth and accuracy of each "Whereas" lid clause set forth above is acknowledged by the parties. The attached exhibits are incorporated into and made a part of this Agreement. 7.14 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. THIS PAGE INTENTIONALLY LEFT BLANK -7- IN WITNESS WHEREOF, the parties hereto 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 on the day of , 20_, and CITY OF TAMARAC, signing by and through its duly authorized to execute same. ATTEST: COUNTY BROWARD COUNTY, through its BOARD OF COUNTY COMMISSIONERS County Administrator and Ex -Off icio Clerk of the Board of County By Commissioners of Broward County, Florida , Mayor day of , 2003. 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 QI Pamela M. Kane Assistant County Attorney 1:a AGREEMENT BETWEEN BROWARD COUNTY AND CITY OF TAMARAC FOR THE FUNDING OF UTILITY REMOVAL ALONG PINE ISLAND ROAD FROM OAKLAND PARK BOULEVARD TO COMMERCIAL BOULEVARD IN THE CITY OF TAMARAC WITNESSES: ATTEST: ' City Clerk (CORPORATE SEAL) CITY CITY OF TAMARAC B1� Y Mayor -Commissioner 1 day of ;;,e, 00 // F City Manager 13 day of , 20 APPROVED AS TO FORM: ►'/ ttgVey PMK May 22, 2003 CADocuments and Settings\wstride\Local Settings\Temp\Tamarac1.wpd M 0(31,3 (3',3 01M�T"Tll I r-r Public Works Department ENGINEERING DIVISION 1 N. University Drive, Suite 300B - Plantation, Florida 33324-2038 - 954-577-4555 - FAX 954-577-2338 February 12, 2004 Mr. John E. Doherty Tamarac Utilities Department 6001 Nob Hill Road Tamarac FL 33321 - Subject: Project 5121. Improvements to Pine Island Road, "< from South of Oakland Park Boulevard to North of Commercial Boulevard. =x-' Agreement for the Funding Utility Removal. Dear Mr. Doherty, - Attached please find your original copy of the fully executed Agreement, covering the removal of asbestos pipe. The Agreement was approved by ur Board on February 10, 2004, Item 6B- Other copies of the agreement are distributed herewith as noted below. If you have any questions, please do not hesitate to call me at 954,577.4559. Sincerely, /Wilfrid P.S. Stride, P.E. Project Manager cc: Henry P. Cook, P.E., Director Richard C. Tornese P.E., Assistant Director Pamela M. Kane, Assistant County Attorney, w/original Luce Augustin, w/original Joseph Martin, P.E., Craven, Thompson & Associates, w/copy No 15121agmt.wpd Broward County Board of County Commissioners Josephus Eggelletion, Jr. - Ben Graber - Sue Gunzburger - Kristin D. Jacobs - Ilene Lieberman • Lori Nance Parrish - John E. Rodstrom, Jr - James A. Scott - Diana Wasserman -Rubin www.broward,org No Text AGREEMENT BETWEEN BROWARD COUNTY AND THE CITY OF TAMARAC FOR THE FUNDING OF UTILITY REMOVAL ALONG PINE ISLAND ROAD FROM OAKLAND PARK BOULEVARD TO COMMERCIAL BOULEVARD IN THE CITY OF TAMARAC AGREEMENT BETWEEN BROWARD COUNTY AND THE CITY OF TAMARAC FOR THE FUNDING OF UTILITY REMOVAL ALONG PINE ISLAND ROAD FROM OAKLAND PARK BOULEVARD TO COMMERCIAL BOULEVARD IN THE CITY OF TAMARAC. This is an Agreement, made and entered into by and between BROWARD COUNTY, a political subdivision of the State of Florida, through its Board of County Commissioners hereinafter referred to as "COUNTY," THE CITY OF TAMARAC, a municipal corporation organized and existing under the laws of the State of Florida, its successors and assigns, hereinafter referred to as "CITY." WITNESSETH WHEREAS, COUNTY plans to construct improvements on Pine Island Road from Oakland Park Boulevard to Commercial Boulevard in the City of Tamarac, hereinafter referred to as "Project;" and WHEREAS, COUNTY will solicit bids for the Project in accordance with County procedures and will procure a contractor to construct the Project; and WHEREAS, CITY owns abandoned utility lines containing asbestos which conflict with the Project drainage system and are required to be removed; and WHEREAS, CITY has agreed to fund the cost for the removal and disposal of the abandoned lines; NOW THEREFORE, IN CONSIDERATION, of the mutual terms, conditions, promises, covenants and payment hereinafter set forth, COUNTY and CITY agree as follows: -1- ARTICLE 1 -SCOPE 1.1 CITY acknowledges that proper notice was provided by COUNTY regarding CITY's utility lines located within the Project's limits, as required by Sec. 337.403 and 337.404, Florida Statutes. 1.2 CITY acknowledges that certain CITY owned utility lines will conflict with proposed drainage pipes and/or structures contained within the Project's limits and that CITY has elected have the abandoned lines removed. 1.3 CITY acknowledges that CITY has requested COUNTY to remove the abandoned lines to accommodate the Project's drainage lines and/or structures and has agreed to reimburse COUNTY for the removal costs. 1.4 CITY acknowledges that the estimate for the cost of removal is Five Thousand and 00/100 Dollars ($5,000.00), and that the number and/or costs of removal may be greater, or less. COUNTY shall furnish CITY with a copy of the contract prices for removal as part of the Project. Following the start of construction of Project, COUNTY shall submit periodic invoices to CITY containing the contractor's charges for removal. CITY shall remit payment to COUNTY within thirty (30) calendar days of the date each invoice is transmitted. CITY shall be responsible for any claims asserted by contractor, arising from CITY's delay in remitting payment. In the event costs for removal are increased by change orders, approved by COUNTY, CITY shall reimburse COUNTYfor all such costs through periodic invoices. ARTICLE 2 - TERM AND TERMINATION 2.1 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 2.2 through 2.6 herein below. 2.2 This Agreement may be terminated for cause by COUNTY, through action of the Board, or by CITY, upon a thirty (30) day written notice given by the terminating party to the other party setting forth the breach. If CITY, or COUNTY, corrects the breach within thirty (30) days after written notice of same, to the satisfaction of the terminating party, 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 terminating party may terminate the Agreement. COUNTY, at the option of the Contract Administrator, may cause such breach to be corrected and improved and bill CITY for the costs of such correction and improvement or terminate this Agreement. If COUNTY opts to correct and improve the breach and bill CITY for same, CITY shall then remit to COUNTY the amount so billed within thirty (30) days of CITY's receipt thereof. 2.3 Termination of this Agreement for cause shall include, but not be limited to: failure of the parties to suitably perform the services required by Article 2 herein, failure of the parties to continuously perform the services required by the terms and conditions of this -2- Agreement in a manner calculated to meet or accomplish the objectives set forth herein, notwithstanding whether any such breach was previously waived or cured. 2.4 This Agreement may be terminated for convenience by either party upon a thirty (30) day written notice given by the terminating party to the other party. 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. 2.5 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. CITY acknowledges and agrees that ten dollars ($10.00), the adequacy of which is hereby acknowledged by CITY, is given as specific consideration to CITY for COUNTY's right to terminate this Agreement for convenience. 2.E Notice of termination shall be provided in accordancewith the Article B, "NOTICES," herein 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 4, "NOTICES," herein. ARTICLE 3 - CHANGES IN SCOPE OF SERVICES Any change to :the Scope of Services must be accomplished by a written amendment, executed by the parties in accordance with Section 7.11 below. ARTICLE 4 - 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: Diretor, Engineering Division One North University Drive, Suite 300B Plantation, Florida 33324-2038 FOR CITY: Jeffrey L. Miller, City Manager WITH COPY TO: Mitchell Kraft City of Tamarac City of Tamarac 7525 NW 88th Avenue 7525 N14 88th Avenue Tamarac, FL 33321 Tamarac, FL 33321 -3- ARTICLE 5 - INDEMNIFICATION CITY 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. ARTICLE 6 - INSURANCE 6. The parties hereto acknowledge that CITY is a self -insured governmental entity subject to the limitations of Section 768.28, Florida Statutes. The CITY 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. ARTICLE 7 - MISCELLANEOUS 7.1 AUDIT RIGHT AND RETENTION OF RECORDS. COUNTY shall have the right to audit the books, records, and accounts of CITY that are related to this Project. CITY shall keep such books, records, and accounts as may be necessary in order to record complete and correct entries related to the Project. CITY 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 CITY's records, CITY shall complywith all requirements thereof, however, no confidentiality or non -disclosure requirement of either federal or state law shall be violated by CITY. 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.. 7.2 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND AMERICANS WITH DISABILITIES ACT. CITY 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. CITY 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 II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and me standards. In addition, CITY 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. 7.2.1 CITY'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 161/2), 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. 7.2.2 CITY shall not engage in or commit any discriminatory practice in violation of the Broward County Human Rights Act (Broward County Code, Chapter 16'/2) in performing any services pursuant to this Agreement. 7.3 THIRD PARTY BENEFICIARIES. Neither CITY 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. 7.4 ASSIGNMENT AND PERFORMANCE. Neither this Agreement nor any interest herein shall be assigned, transferred, or encumbered by either party. CITY 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 Scope of Services and to provide and perform such services to COUNTY's satisfaction for the agreed compensation. CITY shall perform its duties, obligations, and services under this Agreement in a skillful and respectable manner. The quality of CITY'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. 7.5 MATERIALITY AND WAIVER OF BREACH. COUNTY and CITY 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. 7.6 COMPLIANCE WITH LAWS. CITY 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. �12 7.7 SEVERANCE. In the event a portion of this Agreement is found by a court of competentjurisdiction to be invalid, the remaining provisions shall continue to be effective unless COUNTY or CITY elects to terminate this Agreement. An election to terminate this Agreement based upon this provision shall be madewithin seven (7) days after the finding by the court becomes final. 7.8 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 their joint 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. 7.9 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 7 of this Agreement shall prevail and be given effect. 7.10 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. 7.11 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 CITY. 7.12 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 7.11 above. 7.13 INCORPORATION BY REFERENCE. The truth and accuracy of each "Whereas" S� clause set forth above is acknowledged by the parties. The attached exhibits are incorporated into and made a part of this Agreement. 7.14 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. THIS PAGE INTENTIONALLY LEFT BLANK S! IN WITNESS WHEREOF, the parties hereto 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 on the !bL4-- day of 20_�y, and CITY OF TAMARAC, signing by and through its duly authorized to execute same. .a ATTEST-) County Administrator an x-5 ficio Clerk of the Board of County Commissioners of Broward County, Florida 5S �pyylNMiY`4P;:11�/ s G�qEATE..t3 OCT. I STal a p COUNTY BROWARD COUNTY, through its BOARD lOFCOUNTY COMMISSIONERS t Mayor Ci7 day of 2001M. 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 Teleco r: (954) 357--6968 By !-6 -0q Pamela M. Kane Assistant County Attorney r-11 AGREEMENT BETWEEN BROWARD COUNTY AND CITY OF TAMARAC FOR THE FUNDING OF UTILITY REMOVAL ALONG PINE ISLAND ROAD FROM OAKLAND PARK BOULEVARD TO COMMERCIAL BOULEVARD IN THE CITY OF TAMARAC WITNESSES: ATTEST. City Clerk (CORPORATE SEAL) CITY CITY OF TAMARAC 'J Mayor -Commissioner day of 1' - 20 City Manager day of 20 APPROVED AS TO FORM: By 14/ C•f y'Attc ey r � F PMK May 22, 2003 C:\Documents and Settings\wstride\Local Settings\Temp\Tamarac1.wpd M