08-21
RESOLUTION NO. 08-21
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, APPROVING THE EXECUTION OF A UTILITY
WORK BY HIGHWAY CONTRACTOR AGREEMENT WITH
THE STATE OF FLORIDA DEPARTMENT OF
TRANSPORTATION REGARDING RELOCATION OF
NATURAL GAS MAINS FOR THE IMPROVEMENT
PROJECT FOR STATE ROAD SR55 (US19) FROM
SOUTH OF SEVILLE to NORTH OF SR 60; PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the State of Florida Department of Transportation (FDOT) has a
project to widen/improve State Road 55 (US 19) from South of Seville to North of SR 60
including roadway, sidewalk, other improvements and utilities to include those existing
Clearwater Gas System facilities which conflict with the design; and
WHEREAS, under the Utility Work By Highway Contractor Agreement, the
FDOT's general contractor will perform the relocation of existing natural gas mains; and
WHEREAS, having FDOT's general contractor relocate the natural gas mains
allows for the work to be done in a timely manner and releases Clearwater Gas System
from penalty payments; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. The City Council hereby accepts and approves the Utility Work By
Highway Contractor Agreement between the City and the State of Florida Department
of Transportation, identified as Utility Work By Highway Contractor Agreement,
Financial Project ID 256881-2-56-07, a copy of which is attached as Exhibit A.
Section 2. The City Council hereby authorizes the Mayor and City Manager to
sign the Utility Work By Highway Contractor Agreement described in this resolution and
associated documents.
Section 3. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 21 st day of August ,2008.
=L,~ t/~
17ank V. Hibbard
Mayor
A~S to form: ~.
Laura LiPOWS~
Assistant City Attorney
~
STATE OF FLORIDA DEPARTMENT OF TRANSPORTAIDN Form No. 710-010-57
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES
(LUMP SUM) 10/04
Financial Project 10: 256881-2-56-07 Federal Project 10: N/A ~ EXHIBIT
County: Pinellas State Road No.: 55 0 A
z
District Document No: i
!j
iii
Utility Agency/Owner (UAO): Clearwater Gas Systems, Inc.
THIS AGREEMENT, entered into this day of , year of , by and between the STATE
OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FOOT," and
Clearwater Gas Systems, Inc., hereinafter r.eferred to as the "UAO";
WITNESSETH:
WHEREAS, the UAO owns certain utility facilities which are located on the public road or publicly owned rail
corridor identified below, hereinafter referred to as the "Facilities" (said term shaH be deemed to include utility facilities
as the same may be relocated, adjusted, or placed out of service); and
WHEREAS, the FOOT, is currently engaging in a project which involves constructing, reconstructing, or
otherwise changing a public road and other improvements located on a public road or publicly owned rail corridor
identified as US 19 from S. Seville to N of SR 60, State Road No. 55, hereinafter referred to as the "Project"; and
WHEREAS, the Project requires minor modifications to the Facilities or the FOOT's design more particularly
described in Exhibit A attached hereto and by this reference made a part hereof, hereinafter referred to as "Utility
Work," and full plans and technical specifications for the Utility Work are not required; and
WHEREAS, the FOOT will perform the Utility Work as part of the Project; and
WHEREAS, the UAO, pursuant to the terms and conditions hereof, will bear certain costs associated with the
Utility Work; and
WHEREAS, the FOOT and the UAO desire to enter into an agreement which establishes the terms and
conditions applicable to the Utility Work;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the FOOT
and the UAO hereby agree as follows:
1. Performance of Utility Work
a. The FOOT will include the Utility Work in its plans and specifications for the Project and will include
the Utility Work as part of the FOOT's construction of the Project. The preparation of the plans and
specifications and the construction of the Project will be performed in such manner as the FOOT, in
its discretion, deemed appropriate.
b. All location, protection, relocation, adjustment, or removal of the UAO's Facilities which is not listed in
Exhibit A shall be performed pursuant to a separate agreement.
2. Cost of Utility Work
a. The UAO will, at least fourteen (14) calendar days prior to the date on which the FOOT advertises
the Project for bids, pay the FOOT the amount of $ 39.427 for the cost of the Utility Work. Said
amount will be deposited into the State Transportation Trust Fund.
b. The FOOT and the UAO acknowledge and agree that the amount stated above includes an additional
ten percent (10%) to cover the UAO's obligation for the cost of the Utility Work as set forth in Section
337.403(1 )(b), Florida Statutes.
Page 1 of 5
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTAlON
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(LUMP SUM)
Form No. 710-010-57
UTILITIES
1 0/04
c. Except for costs associated with any changes or additions to the Utility Work, the FOOT and the UAO
agree that the deposit shall be an asset of the FOOT and that it constitutes a full and final lump sum
payment for the cost of the Utility Work, without any requirement for a subsequent accounting for the
use of the deposit.
d. Pursuant to Section 337.403(1 )(b), Florida Statutes, no changes or additions to the 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 FOOT contractor's bid that applies to the Utility Work, such excess may
be applied to cover the cost of the changes or additions. All changes or additions shall be subject to
the limitations on supplemental agreements and change orders contained in Section 337.11 (8), Florida
Statutes.
3. 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 FOOT may exercise one or more of
the following options, provided that at no time shall the FOOT be entitled to receive double recovery of
damages:
(1) Terminate this Agreement if the breach is material and has not been cured within 60
days from written notice thereof from the FOOT.
(2) Pursue a claim for damages suffered by the FOOT.
(3) Suspend the issuance of further permits to the UAO for the placement of Facilities on FOOT
property if the breach is material and has not been cured within 60 days from written notice
thereof from FOOT until such time as the breach is cured.
(4) Pursue any other remedies legally available.
(5) Perform any work with its own forces or through contractors and seek repayment for the cost
thereof under Section 337.403(3), Florida Statutes.
b. In the event that the FOOT breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in the Agreement, the UAO may exercise one or more of
the following options:
(1) Terminate this Agreement if the breach is material and has not been cured within 60 days
from written notice thereof from the UAO.
(2) Pursue any other remedies legally available.
c. Termination of this Agreement shall not relieve either party from any obligations it has pursuant to
other agreements between the parties and from any statutory obligations that either party may have
with regard to the subject matter hereof.
4. Indemnification
FOR GOVERNMENT-OWNED UTILITIES:
To the extent provided by law, the UAO shall indemnify, defend, and hold harmless the FOOT and all of its
officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any acts,
action, error, neglect, or omission by the UAO, its agents, employees, or contractors during the performance of
the Agreement, whether direct or indirect, and whether to any person or property to which FOOT or said parties
may be subject, except that neither the UAO, its agents, employees, or contractors will be liable under this
Page 2 of 5
STATE OF FLORIDA DEPARTMENT OF TRANSPORTAlON
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(LUMP SUM)
Form No. 710-010-57
UTILITIES
10/04
section for damages arising out of the injury or damage to persons or property directly caused by or resulting
from the negligence of the FOOT or any of its officers, agents, or employees during the performance of this
Agreement.
When the FOOT receives a notice of claim for damages that may have been caused by the UAO in the
performance of services required under this Agreement, the FOOT will immediately forward the claim to the
UAO. The UAO and the FOOT will evaluate the claim and report their findings to each other within fourteen (14)
working days and will jointly discuss options in defending the claim. After reviewing the claim, the FOOT will
determine whether to require the participation of the UAO in the defense of the claim or to require the UAO to
defend the FOOT in such claim as described in this section. The FOOT's failure to notify the UAO of a claim
shall not release the UAO from any of the requirements of this section. The FOOT and the UAO will pay their
own costs for the evaluation, settlement negotiations, and trial, if any. However, if only one party participates in
the defense of the claim at trial, that party is responsible for all costs.
FOR NON-GOVERNMENT -OWNED UTILITIES:
The UAO shall indemnify, defend, and hold harmless the FOOT and all of its officers, agents, and employees
from any claim, loss, damage, cost, charge, or expense arising out of any acts, action, error, neglect, or
omission by the UAO, its agents, employees, or contractors during the performance of the Agreement, whether
direct or indirect, and whether to any person or property to which FOOT or said parties may be subject, except
that neither the UAO, its agents, employees, or contractors will be liable under this section for damages arising
out of the injury or damage to persons or property directly caused by or resulting from the negligence of the
FOOT or any of its officers, agents, or employees during the performance of this Agreement.
The UAO's obligation to indemnify, defend, and pay for the defense or at the FOOT's option, to participate and
associate with the FOOT in the defense and trial of any damage claim or suit and any related settlement
negotiations, shall arise within fourteen (14) days of receipt by the UAO of the FOOT's notice of claim for
indemnification to the UAO. The notice of claim for indemnification shall be served by certified mail. The
UAO's obligation to defend and indemnify within fourteen (14) days of such notice shall not be excused
because of the UAO's inability to evaluate liability or because the UAO evaluates liability and determines the
UAO is not liable or determines the FOOT is solely negligent. Only a final adjudication or judgment finding the
FOOT 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 FOOT. The FOOT's delay in notifying the UAO of a
claim shall not release UAO of the above duty to defend.
5. Force Majeure
Neither the UAO nor the FOOT shall be liable to the other for any failure to perform under this Agreement to the
extent such performance is prevented by an act of God, war, riots, natural catastrophe, or other event beyond
the control of the non-performing party and which could not have been avoided or overcome by the exercise of
due diligence; provided that the party claiming the excuse from performance has (a) promptly notified the other
party of the occurrence and its estimate duration, (b) promptly remedied or mitigated the effect of the
occurrence to the extent possible, and (c) resumed performance as soon as possible.
6. Miscellaneous
a. To the Facilities shall at all times remain the property of and be properly protected and maintained by
the UAO in accordance with the then current Utility Accommodation Manual and the current utility
permit for the Facilities.
b. Pursuant to Section 287.058, Florida Statutes, the FOOT may unilaterally cancel this Agreement for
refusal by the UAO to allow public access to all documents, papers, letters, or other material subject to
the provisions of Chapter 119, Florida Statutes, and made or received by the UAO in conjunction with
this Agreement.
Page 3 of 5
STATE OF FLORIDA DEPARTMENT OF TRANSPORTAlON
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(LUMP SUM)
Form No. 710-010-57
UTILITIES
1 0104
c. This Agreement constitutes the complete and final expression of the parties with respect to the subject
matter hereof and supersedes all prior agreements, understandings, or negotiations with respect
thereto, except that the parties understand and agree that the FOOT has manuals and written policies
and procedures which shall be applicable at the time of the Project and the relocation of the Facilities
and except that the UAO and the FOOT may have entered into other agreements for work not included
in Exhibit A for Facilities located within the limits of the Project. Copies of FOOT manuals, policies,
and procedures will be provided to the UAO upon request.
d. This Agreement shall be governed by the laws of the State of Florida. Any provision hereof found to be
unlawful or unenforceable shall be severable and shall not affect the validity of the remaining portions
hereof.
e. Time is of essence in the performance of all obligations under this Agreement.
f. All notices required pursuant to the terms hereof may be sent by first class United States Mail,
facsimile transmission, hand delivery, or express mail and shall be deemed to have been received by
the end of five business days from the proper sending thereof unless proof of prior actual receipt is
provided. The UAO shall have a continuing obligation to notify each District of the FOOT of the
appropriate persons for notices to be sent pursuant to this Agreement. Unless otherwise notified in
writing, notices shall be sent to the following addresses:
If to the UAO:
Mr. Bruce Griffin
Clearwater Gas System, Inc.
400 Mvrtle Avenue
Clearwater, FI 33755
727-562-4900
If to the FOOT:
Ms. Sally Prescott ( District Utility Administrator)
Florida Department of Transmission VII
11201 N. McKinley Drive, 7-820
Tampa, FI 33612-6456
813-975-6151
7. Certification
This document is a printout of an FOOT form maintained in an electronic format and all revisions thereto by the
UAO in the form of additions, deletions, or substitutions are reflected only in an Appendix entitled Changes to
Form Document and no change is made in the text of the document itself. Hand notations on affected portions
of this document may refer to changes reflected in the above-named Appendix but are for reference purposes
only and do not change the terms of the document. By signing this document, the UAO hereby represents that
no change has been made to the text of this document except through the terms of the appendix entitled
Changes to Form Document."
You MUST signify by selecting or checking which of the following applies:
l I No changes have been made to this Form Document and no Appendix entitled "Changes to Form
Document" is attached.
~ No changes have been made to this Form Document, but changes are included on the attached Appendix
entitled "Changes to Form Document."
Page 4 of 5
STATE OF FLORIDA DEPARTMENT OF TRANSPORTAlON
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(LUMP SUM)
Form No. 710-010-57
UTILITIES
10/04
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written.
UTILITY: Clearwater Gas Systems, Inc.
BY: (SiQnature)
DATE:
(Typed Name: _)
(Typed Title: _)
Recommend Approval by the District Utility Office
BY: (Sh::mature)
DATE:
FDOT Legal review
BY: (Si~nature)
DATE:
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
BY: (Si~nature)
DATE:
(Typed Name: Scott Collister)
(Typed Title: Director of Transportation)
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY:
DATE:
(Typed Name: _)
(Typed Title: _)
Page 5 of 5
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APPENDIX
State of Florida Department of Transportation
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
CHANGES TO FORMS DOCUMENT
FPID: 256881-2-56-07
1. Page 6 of 6, following "IN WITNESS WHEREOF.. .year first within."
Add the following signature blocks following the "Utility.. . (Typed Title)" blank:
Countersigned:
City of Clearwater, Florida
Frank Hibbard
Mayor
By:
William B. Horne, II
City Manager
Approved as to form:
Attest:
Laura Lipowski
Assistant City Attorney
Cynthia E. Goudeau
City Clerk