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HomeMy WebLinkAboutCity of Tamarac Resolution (89)Temp. Reso. #9718 March 4, 2002 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2002- S9 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO ACCEPT AND EXECUTE AN AGREEMENT WITH STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FOR FUNDING THE RELOCATION OF UNDERGROUND UTILITY TO ELIMINATE CONFLICTS AT COMMERCIAL BOULEVARD AND FLORIDA'S TURNPIKE FOR A TOTAL CONTRACT AMOUNT OF $121,201; APPROVING FUNDING FOR THIS PROJECT FROM THE APPROPRIATE UTILITIES ACCOUNTS INCLUDING THE APPROPRIATION OF $121,201 FROM RETAINED EARNINGS; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY, AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, State of Florida Department of Transportation will be undertaking the Commercial Boulevard Interchange Improvements Project at Florida's Turnpike and Commercial Boulevard (a copy of which is attached as shown in map form as "Exhibit 1 "); and WHEREAS, City of Tamarac owns and operates existing water and wastewater utilities that are within the FDOT right-of-way and are in conflict with the proposed interchange at Commercial Boulevard and Florida's Turnpike; and 1 Temp. Reso. #9718 March 4, 2002 2 WHEREAS, State of Florida requested that the City relocate its active utilities that lie within the construction boundaries of the project in accordance with State of Florida Department of Transportation standards and under the provisions of Florida Statutes 337.403 and 337.404; and WHEREAS, the State gave the City the option of using the State's contractor or provide another contractor to resolve the conflicts that the City's utilities pose with the proposed improvements located at Commercial Boulevard and Florida's Turnpike; and WHEREAS, it is advantageous and beneficial to execute an agreement between the City and the State to allow the relocation of City utilities that interfere with the proposed interchange by the State's contractor; and WHEREAS, the City of Tamarac is funding the utility relocation work to be done by the state's contractor pursuant to the terms of the agreement. WHEREAS, it is the recommendation of the Director of Utilities that this agreement to resolve conflicts associated with the proposed interchange improvements at Commercial Boulevard and Florida's Turnpike be approved, executed and funded; and WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in Temp. Reso. #9718 March 4, 2002 2 WHEREAS, State of Florida requested that the City relocate its active utilities that lie within the construction boundaries of the project in accordance with State of Florida Department of Transportation standards and under the provisions of Florida Statutes 337.403 and 337.404; and WHEREAS, the State gave the City the option of using the State's contractor or provide another contractor to resolve the conflicts that the City's utilities pose with the proposed improvements located at Commercial Boulevard and Florida's Turnpike; and WHEREAS, it is advantageous and beneficial to execute an agreement between the City and the State to allow the relocation of City utilities that interfere with the proposed interchange by the State's contractor; and WHEREAS, the City of Tamarac is funding the utility relocation work to be done by the state's contractor pursuant to the terms of the agreement. WHEREAS, it is the recommendation of the Director of Utilities that this agreement to resolve conflicts associated with the proposed interchange improvements at Commercial Boulevard and Florida's Turnpike be approved, executed and funded; and WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in 1 Fj Temp. Reso. #9718 March 4, 2002 3 the best interest of the citizens and residents of the City of Tamarac to accept and execute an agreement between the State of Florida and the City of Tamarac for funding the resolution of underground utility conflicts at Commercial Boulevard and Florida's Turnpike and forward it for execution by the appropriate officials of the State of Florida Department of Transportation and provide for the funding of the agreement in the amount of $121,201 with the appropriation of funds from Retained Earnings. 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 accept and execute the State of Florida Department of Transportation Utility Work by Highway Contractor Agreement (Lump Sum) (a copy of which is attached hereto as "Exhibit 2") and forward it for execution by the appropriate officials of the State of Florida Department of Transportation. Temp. Reso. #9718 March 4, 2002 4 SECTION 3: The funding of the Agreement with a budget appropriation in the amount of $121,201 from Retained Earnings to the Utilities Operating Fund account entitled, "Commercial Boulevard Interchange Improvements" is hereby approved for correct accounting purposes. SECTION 4: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 5: If any clauses, 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. 1 Temp. Reso. #9718 March 4, 2002 5 SECTION 6: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this 26T" day of March, 2002. JOE SCHREIBER MAYOR ATTEST: i RECORD OF COMMISSION V TE: MARION S NSON, CMC MAYOR SCHREIBER CITY CLERK DIST 1: V/M. PORTNER DIST 2: COMM. MISHKIN DIST 3: COMM. SULTAI I HEREBY CERTIFY that I DIST 4: COMM. ROBERTS have approved this RESOLUTIC)Pd� as,4'6�orih. MITCHELL S. FT CITY ATTORWEY RG/TR/mg EXHIBIT I TEMP. 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Performance of Utility Work a. The FDOT will include the Utility Work in its plans and specifications for the Project and will include the Utility Work as part of the FDOT's construction of the Project. The preparation of the plans and specifications and the construction of the Project will be performed in such manner as the FDOT, in its discretion, deemed appropriate. b. All location, protection, relocation, adjustment, or removal of the UAO's Facilities which is not listed in Exhibit A shall be performed pursuant to a separate agreement. 2. Cost of Utility Work a. The UAO will, at least fifteen (15 ) calendar days prior to the date on which the FDOT advertises the Project for bids, pay the FDOT the amount of $ 12-11201.0-0 for the cost of the Utility Work. Said amount will be deposited into the State Transportation Trust Fund. b. The FDOT and the UAO acknowledge and agree that the amount stated above includes an additional ten percent (10%) to cover the UAO's obligation for the cost of the Utility Work as set forth in Section 337.403(1)(b), Florida Statutes. C. Except for costs associated with any changes or additions to the Utility Work, the FDOT and the UAO agree that the deposit shall be an asset of the FDOT and that it constitutes a full and final lump sum payment for the cost of the Utility Work, without any requirement for a subsequent accounting for the use of the deposit. 710-010-57 UTILITIES 10/01 Page 2 of 5 Pursuant to Section 337.403(1)(b), Florida Statutes, no changes or additions to the Utility Work will be made during the construction of the Project unless the UAO has made an additional deposit to cover the cost of the changes or additions. To the extent that the amount stated in Subparagraph 2.a. above exceeds the amount of the FDOT contractor's bid that applies to the Utility Work, such excess may be applied to cover the cost of the changes or additions. All changes or additions shall be subject to the limitations on supplemental agreements and change orders contained in Section 337.11(8), Florida Statutes. 3. Default a. In the event that the UAO breaches any provision of this Agreement, then in addition to any other remedies which are otherwise provided for in this Agreement, the FDOT may exercise one or more of the following options, provided that at no time shall the FDOT be entitled to receive double recovery of damages: (1) Terminate this Agreement if the breach is material and has not been cured within 60 days from written notice thereof from the FDOT. (2) Pursue a claim for damages suffered by the FDOT. (3) Suspend the issuance of further permits to the UAO for the placement of Facilities on FDOT property if the breach is material and has not been cured within 60 days from written notice thereof from FDOT until such time as the breach is cured. (4) Pursue any other remedies legally available. (5) Perform any work with its own forces or through contractors and seek repayment for the cost thereof under Section 337.403(3), Florida Statutes. b. In the event that the FDOT breaches any provision of this Agreement, then in addition to any other remedies which are otherwise provided for in the Agreement, the UAO may exercise one or more of the following options: (1) Terminate this Agreement if the breach is material and has not been cured within 60 days from written notice thereof from the UAO. (2) Pursue any other remedies legally available. C. Termination of this Agreement shall not relieve either party from any obligations it has pursuant to other agreements between the parties and from any statutory obligations that either party may have with regard to the subject matter hereof. 4. Indemnification FOR GOVERNMENT -OWNED UTILITIES, To the extent provided by law, the UAO shall indemnify, defend, and hold harmless the FDOT and all of its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any acts, action, error, neglect, or omission by the UAO, its agents, employees, or contractors during the performance of the Agreement, whether direct or indirect, and whether to any person or property to which FDOT or said parties may be subject, except that neither the UAO, its agents, employees, or contractors will be liable under this section for damages arising out of the injury or damage to persons or property directly caused by or resulting from the negligence of the FDOT or any of its officers, agents, or employees during the performance of this Agreement. When the FDOT receives a notice of claim for damages that may have been caused by the UAO in the performance of services required under this Agreement, the FDOT will immediately forward the claim to the UAO. The UAO and the FDOT will evaluate the claim and report their findings to each other within fourteen (14) working days and will jointly discuss options in defending the claim. After reviewing the claim, the FDOT will determine whether to require the participation of the UAO in the defense of the claim or to require the UAO to defend the FDOT in such claim as described in this section. The FDOT's failure to notify the UAO of a claim shall not release the UAO from any of the requirements of this section. The FDOT and the UAO will pay their own costs for the evaluation, settlement negotiations, and trial, if any. However, if only one party participates in the defense of the claim at trial, that party is responsible for all costs. 710-010-57 UTILITIES 10/01 Page 3 of 5 FOR NON -GOVERNMENT -OWNED UTILITIES, The UAO shall indemnify, defend, and hold harmless the FDOT and all of its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any acts, action, error, neglect, or omission by the UAO, its agents, employees, or contractors during the performance of the Agreement, whether direct or indirect, and whether to any person or property to which FDOT or said parties may be subject, except that neither the UAO, its agents, employees, or contractors will be liable under this section for damages arising out of the injury or damage to persons or property directly caused by or resulting from the negligence of the FDOT or any of its officers, agents, or employees during the performance of this Agreement. The UAO's obligation to indemnify, defend, and pay for the defense or at the FDOT's option, to participate and associate with the FDOT in the defense and trial of any damage claim or suit and any related settlement negotiations, shall arise within fourteen (14) days of receipt by the UAO of the FDOT's notice of claim for indemnification to the UAO. The notice of claim for indemnification shall be served by certified mail. The UAO's obligation to defend and indemnify within fourteen (14) days of such notice shall not be excused because of the UAO's inability to evaluate liability or because the UAO evaluates liability and determines the UAO is not liable or determines the FDOT is solely negligent. Only a final adjudication or judgment finding the FDOT solely negligent shall excuse performance of this provision by the UAO. The UAO shall pay all costs and fees related to this obligation and its enforcement by the FDOT. The FDOT's delay in notifying the UAO of a claim shall not release UAO of the above duty to defend. 5. Force Majeure Neither the UAO nor the FDOT shall be liable to the other for any failure to perform under this Agreement to the extent such performance is prevented by an act of God, war, riots, natural catastrophe, or other event beyond the control of the non -performing party and which could not have been avoided or overcome by the exercise of due diligence; provided that the party claiming the excuse from performance has (a) promptly notified the other party of the occurrence and its estimate duration, (b) promptly remedied or mitigated the effect of the occurrence to the extent possible, and (c) resumed performance as soon as possible. 6. Miscellaneous a. The Facilities shall at all times remain the property of and be properly protected and maintained by the UAO in accordance with the then current Utility Accommodation Manual and the current utility permit for the Facilities except to the extent that FDOT's Contractor is obligated to perform these activities during the period of construction. b. Pursuant to Section 287.058, Florida Statutes, the FDOT may unilaterally cancel this Agreement for refusal by the UAO to allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the UAO in conjunction with this Agreement. C. This Agreement constitutes the complete and final expression of the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, or negotiations with respect thereto, except that the parties understand and agree that the FDOT has manuals and written policies and procedures which shall be applicable at the time of the Project and any future location, adjustment, or modification and the relocation of the Facilities and except that the UAO and the FDOT may have entered into other agreements for work not included in Exhibit A for Facilities located within the limits of the Project. Copies of FDOT manuals, policies, and procedures will be provided to the UAO upon request. d. This Agreement shall be governed by the laws of the State of Florida. Any provision hereof found to be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining provisions hereof. e. Time is of the essence in the performance of all obligations under this Agreement. 7. 710-010-57 UTILITIES 10/01 Page 4 of 5 All notices required pursuant to the terms hereof may be sent by first class United States Mail, facsimile transmission, hand delivery, or express mail and shall be deemed to have been received by the end of five business days from the proper sending thereof unless proof of prior actual receipt is provided. The UAO shall have a continuing obligation to notify each District of the FDOT of the appropriate persons for notices to be sent pursuant to this Agreement. Unless otherwise notified in writing, notices shall be sent to the following addresses: If to the UAO: City of Tamarac, Jeffrey Miller, City Manager with copy to: Mitchell Kraft, City Attorney venue Tamarac, Florida33321-2401 If to the FDOT: Florida Department of Turnpike District Certification This document is a printout of an FDOT form maintained in an electronic format and all revisions thereto by the UAO in the form of additions, deletions, or substitutions are reflected only in an Appendix entitled "Changes To Form Document" and no change is made in the text of the document itself. Hand notations on affected portions of this document may refer to changes reflected in the above -named Appendix but are for reference purposes only and do not change the terms of the document. By signing this document, the UAO hereby represents that no change has been made to the text of this document except through the terms of the appendix entitled "Changes To Form Document." You MUST signify by selecting or checking which of the following applies: Q No changes have been made to this Forms Document and no Appendix entitled "Changes To Form Document' is attached. 0 No changes have been made to this Form Document, but changes are included on the attached Appendix entitled "Changes to Forms Document." IN WITNESS THEREOF, the parties hereto have executed this Agreement effective the day and year first written. UTILITY: City of Tamarac Florida BY:(Sionature (Typed Narr%• Joe Schreiber Jeffrey L. Miller ) (Typed Title:: Mayor City Manager ) Recommend Approval by the District Utility Office DATE: &A6 moo ,— BY:(Signature) DATE: FDOT Legal Review BY:(Signature) DATE: 710-010-57 UTILITIES 10/01 Page 5 of 5 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY:(Signature) DATE: (Typed Name: James L. Ely ) (Typed Title: Turnpike District Secretary ) FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY:(Signature) DATE: (Typed Name: ) (Typed Title: DATE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 710-010-57 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES CHANGES TO FORM DOCUMENT 10ro1 The following changes to the standard 'Utility Work by Highway Contractor Agreement (Lump Sum)' form has been requested by the Finance and Legal Departments of the Florida Department of Transportation, Turnpike District, the Department; 1. Section 6, Miscellaneous, add new subsection 'g' as follows: Reimbursement obligation shall be payable solely from the non -ad valorem revenues of the Agency and shall not be or constitute a general obligation or indebtedness of the Agency or a 'bond' within the meaning of any constitutional or statutory provision. 2. Section 2, Cost of Utility Work, subsection 'a', last sentence will be amended as follows: Said amount will be deposited into the Turnpike General Reserve Trust Fund. The parties jointly agree to this change of the form document. Acknowledged by: FLORIDA DEPARTMENT OF TRANSPORTATION, TURNPIKE DISTRICT BY: (Signatu (Typed Name): James L. Ely (Typed Title): Turnpike District Secretary DATE: CITY OF TAMARAC, FL RIDA BY: (Signature) (Typed Name): J creiber (Typed Title): Mayor 3I_�-46-1-ov a - Attest BY: (Signature) e(Typed Name): Jeffrey L. Miller (Typed Title): City Manager DATE: 3 ! (' /� Zo Temp. Reso. #9718 March 4, 2002 4 SECTION 3: The funding of the Agreement with a budget appropriation in the amount of $121,201 from Retained Earnings to the Utilities Operating Fund account entitled, "Commercial Boulevard Interchange Improvements" is hereby approved for correct accounting purposes. SECTION 4: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 5: If any clauses, 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. E