03-29
~
RESOLUTION NO. 03-29
A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA,
APPROVING THE EXECUTION OF A UTILITY
JOINT PROJECT AGREEMENT WITH THE STATE OF
FLORIDA DEPARTMENT OF TRANSPORTATION REGARDING
RELOCATION OF NATURAL GAS MAINS FOR THE
IMPROVEMENT PROJECT FOR STATE ROAD 688
(ULMERTON ROAD) FROM OAKHURST TO 119TH STREET;
RESCINDING RESOLUTION NO. 03-06; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the State of Florida Department of Transportation (FDOT) has a project to
widen/improve State Road 688 (Ulmerton Road) from Oakhurst to 119th Street including
roadway, sidewalk, other improvements and utilities to include those proposed Clearwater Gas
System facilities; and
WHEREAS, under the Joint Project Agreement, the FDOT's general contractor will
perform the installation of proposed natural gas mains; and
WHEREAS, having FDOT's general contractor install the natural gas mains allows for
the work to be done in a timely manner and releases Clearwater Gas System from penalty
payments; and
WHEREAS, on January 23, 2003, the City Commission approved Resolution 03-06,
which approved execution of the Joint Project Agreement. Resolution 03-06 contained
incorrect information regarding the location of the agreement; now, therefore,
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. The City Commission hereby accepts and approves the Joint Project
Agreement between the City and the State of Florida Department of Transportation, identified
as Utility Work By Highway Contractor Agreement, Financial Project ID 257050-1-56-03, a copy
of which is attached as Exhibit A.
Section 2. The City Commission hereby authorizes the Mayor-Commissioner and City
Manager to sign the Joint Participation Agreement described in this resolution and associated
documents.
Section 3. Resolution 03-06 is hereby rescinded.
Section 4. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this
21st day of
Approved as to form:
(p~
Laura Llpowski
Assistant City Attorney
::.; I A I t: U... ...LUH.IUA Ut:t-'AH. r Mt::N' Ur I KAN::>t-'UI'< I A IIUN
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UTILITIES
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UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
Financial Project 10: 257050-1-56-03
Work Program Item No. (old): 7117138
State Job No. (old): 15120-3527
Federal Project 10: N/A
County/Section No: 15/120
District Document No: N/A
..,'
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
City of Clearwater Gas System , hereinafter referred to as the "UAO";
~
WITNESSETH
WHEREAS, the FOOT is constructing, reconstructing, or otherwise changing a portion of a publie road or publicly
owned rail corridor, said project being identified as Ulmerton Road from Oakhurst to 119th Street
State Road No.: SR 688 ,hereinafter referred to as the "Project"; and
WHEREAS, the UAO owns or desires to install eertain utility faeilities whieh are loeated within the limits of the
Projeet hereinafter referred to as the "Facilities" (said term shall be deemed to include utility facilities as the same may be
relocated, adjusted, installed, or placed out of serviee pursuant to this Agreement); and
WHEREAS, the Project requires the location (vertically and/or horizontally), protection, relocation, installation,
adjustment or removal of the Facilities, or some eombination thereof, hereinafter referred to as "Utility Work"; and
WHEREAS, the FOOT and the UAO desire to enter into a joint agreement pursuant to Seetion 337.403(1 )(b),
Florida Statutes for the Utility Work to be accomplished by the FOOT's contractor as part of the eonstruction of the Prajeet;
and
WHEREAS, the UAO, pursuant to the terms and conditions hereof, will bear eertain costs assoeiated with the
Utility Work;
NOW, THEREFORE, in consideration of the premises and the'mutual covenants eontained herein, the FOOT and
the UAO hereby agree as follows:
1. Design of Utility Work
a. UAO shall prepare, at UAO's sole cost and expense, a final engineering design, plans, teehnieal special
provisions, a eost estimate, and a contingency Utility Work Scedule (said eontingeney schedule to be used
in the case of a bid rejection) for the Utility Work (hereinafter referred to as the "Plans Paekage") on or
before February , year of 2003
b. The Plans Package shall be in the same format as the FOOT's contract documents for the Projeet and
shall be suitable for reproduetion.
e. Unless otherwise specifieally directed in writing, the Plans Package shall include any and all activities and
work effort required to perform the Utility Work, including, but not limited to, all clearing and grubbing,
survey work, and shall include a traffic eontrol plan.
d. The Plans Package shall be prepared in compliance with the FOOT's Utility Accommodation Manual and
the FOOT's Plans Preparation Manual in effect at the time the Plans Package is prepared, and the FOOT's
eon tract doeuments for the Project. If the FOOT's Plans Preparation Manual has been updated and
conflicts with the Utility Accommodation Manual, the Utility Accommodation Manual shall apply where
such conflicts exist.
e. The technical special provisions which are a part of the Plans Package shall be prepared in accordance
with the FOOT's guidelines on preparation of technical special provisions and shall not duplicate or change
the general contracting provisions of the FOOT's Standard Specifications for Road and Bridge Construction
and any Supplemental Specifications, Special Provisions, or Developmental Specifications of the FOOT for
the Project.
Exhjb;~ "Au to Resolution 03- 29
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f. UAO shall provide a copy of the proposed Plans Package to the FOOT, and to sueh other right of way
users as designated by the FOOT, for review at the following stages: Ph IV, Final
Prior to submission of the proposed Plans Package for review at these stages, the UAO shall send the
FOOT a work progress schedule explaining how the UAO will meet the FOOT's produetion schedule. The
work progress schedule shall include the review stages, as well as other milestones necessary to complete
the Plans Package within the time specified in Subparagraph a. above.
g. In the event that the FOOT finds any deficiencies in the Plans Paekage during the reviews performed
pursuant to Subparagraph f. above, the FOOT will notify the UAO in writing of the deficiencies and the UAO
will correct the deficiencies and return corrected documents within the time stated in the notiee. The
FOOrs review and approval of the documents shall not relieve the UAO from responsibility for subsequently
discovered errors or omissions.
h. The FOOT shall furnish the UAO sueh information from the FOOT's files as requested by the UAO;
however, the UAO shall at all time be and remain solely responsible for proper preparation of the Plans
Paekage and for verifying all information neeessary to properly prepare the Plans Paekage, ineluding survey
information as to the loeation (both vertieal and horizontal) of the Facilities. The providing of information by
the FOOT shall not relieve the UAO of this obligation nor transfer any of that responsibility to the FOOT.
i. The Facilities and the Utility Work will include all uti lity facilities of the UAO whieh are located within the
limits of the Project, exeept as generally summarized as follows: N/A
These exeeptions shall be handled by separate arrangement.
j. If any facilities of the UAO located within the project limits are discovered after work on the project
eommences to be qualified for reloeation at the FOOT's expense, but not previously identified as sueh, the
UAO shall file a claim with the FOOT for reeovery of the cost of reloeation thereof. The filing of the claim
shall not necessarily entitle the UAO to payment, and resolution of the elaim shall be based on a
determination of fault fOr the error. The diseovery of facilities not previously identified as being qualified for
relocation at the FOOT's expense shall not invalidate this Agreement.
k. The UAO shall fully cooperate with all other right of way users in the preparation of the Plans Package.
Any eonfliets that eannot be resolved through cooperation shall be resolved in the manner determined by
the FOOT.
I. Upon eompletion of the Utility Work, the Facilities shall be deemed to be located on the publie road or
publicly owned rail eorridor under and pursuant to the Utility Permit: To be applied for at a later date
(Note: It is the intent of this /ine to allow either attachment of or separate reference to the permit).
2. Performance of Utility Work
a. The FOOT shall incorporate the Plans Package into its contract for construction of the Projeet.
b. The FOOT shall procure a contraet for eonstruction of the Project in aeeordanee with the FOOT's
requirements.
c. If the portion of the bid of the contraetor selected by the FOOT which is for performance of the Utility Work
exceeds the FOOT's official estimate for the Utility Work by more than ten percent (10%) and the FOOT
does not elect to participate in the cost of the Utility Work pursuant to Section 337.403(1 )(b), Florida
Statutes, the UAO may elect to have the Utility Work removed from the FOOT's contract by notifying
the FOOT in writing within 14 days from the date that the UAO is notified of the bid amount.
Unless this election is made, the Utility Worl(shall be performed as part of the Project by the FOOT's
contractor.
d. If the UAO elects to remove the Utility Work from the FOOT's contract in accordance with Subparagraph 2.
c., the UAO shall perform the Utility Work separately pursuant to the terms and conditions of the FOOT's
standard relocation agreement, the terms and cond itions of which are incorporated herein for that purpose
by this reference, and in accordance with the contingency relocation schedule which is a part of the Plans
Paekage. The UAO shall proceed immediately with the Utility Work so as to cause no delay to the FOOT
or the FOOT's contractor in constructing the Project.
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e. The UAO shall perform all engineering inspection, testing, and monitoring of the Utility Work to insure that it
is properly performed in accordance with the Plans Package except for the following activities:
N/A
and will furnish the FOOT with daily diary records showing approved quantities and amounts for weekly,
monthly, and final estimates in accordance with the format required by FOOT proeedures.
f. Except for the inspection, testing, monitoring and reporting to be performed by the UAO in accordance with
Subparagraph 2. e., the FOOT will perform all contract administration for its construction contract.
g. The tJAO shall fully eooperate with the FOOT and the FOOT's contractor in all matters relating to the
performance of the Utility Work.
h. The FOOT's engineer has full authority over the Project and the UAO shall be responsible for eoordinating
and cooperating with the FOOT's engineer. In so doing, the UAO shall make such adjustments and
changes in the Plans Paekage as the FOOT's engineer shall determine are neeessary for the prosecution
of the Project.
i. The UAO shall not make any ehanges to the Plans Package after the date on whieh the FOOT's contraet
documents are mailed to Tallahassee for advertisement of the Project unless those changes fall within the
categories of changes whieh are allowed by supplemental agreement to the FOOT's contraet pursuant to
Seetion 337.11, Florida Statutes. All changes, regardless of the nature of the ehange or the timing of the
change, shall be subjeet to the prior approval of the FOOT.
3. Cost of Utility Work
a. The UAO shall be responsible for all costs of the Utility Work and all eosts associated with any
adjustments or ehanges to the Utility Work determined by the FOOT's engineer to be necessary, including,
but not limited to the cost of changing the Plans Package and the inerease in the eost of performing the
Utility Work, unless the adjustments or ehanges are neeessitated by an error or omission of the FOOT.
The UAO shall not be responsible for the cost of delays caused by such adjustments or ehanges unless
they are attributable to the UAO pursuant to Subparagraph" 4.a.
b. The initial estimate of the cost of the Utility Work is $321 ,160.50 . At sueh time as the FOOT
prepares its offieial estimate, the FOOT shall notify the UAO of the amount of the offieial estimate for the
Utility Work. Upon being notified of the offieial estimate, the UAO shall have five (5) working days within
which to aecept the official estimate for purposes of making deposits and for determining any possible
eontribution on the part of the FOOT to the cost of the Utility Work, or to eleet to have the Utility Work
removed from the FOOT's eontract and performed separately pursuant to the terms and eonditions set forth
in Suboaraaraoh 2. d. hereof.
e. At least Fourteen (14- ) calendar days prior to the date on whieh the FOOT advertises
the Project for bids, the UAO will pay to the FOOT an amount equal to the FOOT's official estimate; plus
_ % for administrative costs of field work, tabulation of quantities, Final Estimate proeessing and
Project aecounting (said amounts are to be hereinafter collectively referred to as the "Allowances"); plus
10% of the official estimate for a contingency fund to be used as hereinafter provided for changes to the
Utility Work during the construction of the Project (the "Contingency Fund").
d. Payment of the funds pursuant to this paragraph will be made (choose one):
o
!XI
directly to the FOOT for deposit.
as provided in the attached Memorandum of Agreement between the UAO, the FOOT, and the
State of Florida, Department of Finaneial Serviees, Division of Treasury. Deposits of less than
$100,000 to be escrowed must be pre-approved by the Department of Finaneial Serviees and
FDOT Comptroller's Office prior to execution of this agreement.
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e. If the portion of the eontraetor's bid selected by the FOOT for performance of the Utility Work exeeeds the
amount of the deposit made pursuant to Subparagraph c. above, then subjeet to and in aecordance with the
limitations and eonditions established by Subparagraph 2. c. hereof regarding FOOT partieipation in the
cost of the Utility Work and the UAO's election to remove the Utility Work from the Projeet, the UAO shall,
within fourteen (14) calendar days from notification from the FOOT or prior to posting of the aeeepted bid,
whichever is earlier, pay an additional amount to the FOOT to bring the total amount paid to the total
obligation of the UAO for the cost of the Utility Work, plus Allowances and 10% Contingency Fund. The
FOOT will notify the UAO as soon as it becomes apparent the accepted bid amount plus allowanees and
contingency is in exeess of the advance deposit amount; however, failure of the FOOT to so notify the UAO
shall not relieve the UAO from its obligation to pay for its full share of projeet costs on final aecounting as
provided herein below. In the event that the UAO is obligated under this Subparagraph 3.e. to pay an
additj,onal amount and the additional amount that the UAO is obligated to pay does not exeeed the
Contingency Fund already on deposit, the UAO shall have sixty (60) calendar days from notifieation from
the FOOT to pay the additional amount, reqardless of when the aecepted bid is posted.
f. If the aeeepted bid amount plus allowanees and eontingeney is less than the advanee deposit amount, the
FOOT will refund the amount that the advance deposit exceeds the bid amount, plus allowanees and
eontingency if sueh refund is requested by the UAO in writing and approved by the Comptroller of the FOOT
or his designee.
g. Should eontraet modifieations oeeur that inerease the UAO's share of total projeet eosts, the UAO will be
notified by the FOOT aeeordingly. The UAO agrees to provide, in advance of the additional work being
performed, adequate funds to ensure that cash on deposit with the FOOT is suffieient to fully fund its share
of the projeet eosts. The FOOT shall notify the UAO as soon as it becomes apparent the aetual eosts will
overrun the award amount; however, failure of the FOOT to so notify the UAO shall not relieve the UAO from
its obligation to pay for its full share of project costs on final aeeounting as provided herein below.
h. The FOOT may use the funds paid by the UAO for payment of the cost of the Utility Work. The
Contingeney Fund may be used for increases in the eost of the Utility Work whieh oeeur beeause of
quantity overruns or beeause of adjustments or ehanges in the Utility Work made pursuant to Subparagraph
2. h. Prior to using any of the Contingency Fund, the FOOT will obtain the written eoneurreneeof the
person delegated that responsibility by written notiee from the UAO. The delegatee shall respond
immediately to all requests for written eoncurrence. If the delegatee refuses to provide written eoncurrence
promptly and the FOOT determines that the work is neeessary, the FOOT may proeeed to perform the work
and reeover the eost thereof pursuant to the provisions of Seetion 337.403(3), Florida Statutes. In the event
that the Contingeney Fund is depleted, the UAO shall, within fourteen (14) ealendar days from notifieation
from the FOOT, pay to the FOOT an additional 10% of the total obligation of the UAO for the eost of the
Utility Work established under Subparagraph 3. e. for future use as the Contingeney Fund.
i. Upon final payment to the Contraetor, the FOOT intends to have its final and eomplete accounting of all
eosts ineurred in eonneetion with the work performed hereunder within three hundred sixty (360) days. All
projeet eost records and aecounts shall be subject to audit by a representative of the UAO for a period of
three (3) years after final close out of the Project. The UAO will be notified of the final cost. Both parties
agree that in the event the final aceounting of total project costs pursuant to the terms of this agreement is
less than the total deposits to date, a refund of the excess will be made by the FOOT to the UAO. In the
event said final accounting of total project costs is greater than the total deposits to date, the UAO will pay
the additional amount within forty (40) calendar days from the date of the invoice. The UAO agrees to pay
interest at a rate as established pursuant to Seetion 55.03, Florida Statutes, on any invoice not paid within
the time specified in the preceding sentence until the invoice is paid.
4. Claims Against UAO
a. The UAO shall be responsible for all costs incurred as a result of any delay to the FOOT or its contractors
caused by errors or omissions in the Plans Package (including inaccurate location of the Facilities) or by
failure of the UAO to properly perform its obligations under this Agreement in a timely manner.
b. In the event the FOOT's contractor provides a notice of intent to make a claim against the FOOT relating to
the Utility Work, the FOOT will notify the UAO of the notice of intent and the UAO will thereafter keep and
maintain daily field reports and all other records relating to the intended claim.
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c. In the event the FOOT's contraetor makes any claim against the FOOT relating to the Utility Work, the
FOOT will notify the UAO of the claim and the UAO will cooperate with the FOOT in analyzing and resolving
the claim within a reasonable time. Any resolution of any portion of the claim direetly between the UAO
and the FOOT's contractor shall be in writing, shall be subject to written FOOT coneurrence and shall
specify the extent to which it resolves the claim against the FOOT.
d. The FOOT may withhold payment of surplus funds to the UAO until final resolution (including any actual
payment required) of all c1aimsfelating to the Utility Work. The right to withhold shall be limited to actual
claim payments made by the FOOT to the FOOT's contractor.
5. Out of Service Facilities
No Facilities ~,hall be placed out of service unless specifieally identified as sueh in the Plans. The following terms
and conditions shall apply to Facilities placed Out-of-Service:
a. The UAO acknowledges its present and eontinuing ownership of and responsibility for out of serviee
Facilities.
b. The FOOT agrees to allow the UAO to leave the Facilities within the right of way subject to the eontinuing
satisfactory performance of the conditions of this Agreement by UAO. In the event of a breach of this
Agreement by the UAO, the Facilities shall be removed upon demand from the FOOT in aeeordanee with
the provisions of Subparagraph e. below.
e. The UAO shall take sueh steps to seeure the Facilities and otherwise make the Faeilities safe in
aecordance with any and all applicable local, state or federal laws and regulations and in accordanee with
the legal duty of the UAO to use due care in its dealings with others. The UAO shall be solely responsible
for gathering all information necessary to meet these obligations.
d. The UAO shall keep and preserve all reeords relating to the Facilities, including, but not limited to, records
of the location, nature of, and steps taken to safely secure the Facilities and shall promptly respond to
information requests of the FOOT or other permittees using or seeking use of the right of way.
e. The UAO shall remove the Facilities at the request of the FOOT in the event that the FOOT determines that
removal is necessary for FOOT use of the right of way or in the event that the FOOT determines that use of
the right of way is needed for other active utilities that cannot be otherwise aecommodated in the right of
way. Removal shall be at the sole cost and expense of the UAO and without any right of the UAO to objeet
or make any claim of any nature whatsoever with regard thereto. Removal shall be completed within the
time speeified in the FOOT's notice to remove. In the event that the UAO fails to perform the removal
properly within the specified time, the FOOT may proceed to perform the removal at the UAO's expense
pursuant to the provisions of Seetions 337.403 and 337.404, Florida Statutes.
f. Exeept as otherwise provided in Subparagraph e. above, the UAO agrees that the Faeilities shall forever
remain the legal and financial responsibility of the UAO. The UAO shall reimburse the FOOT for any and all
eosts of any nature whatsoever resulting from the presenee of the Facilities within the right of way. Said
eosts shall inelude, but shall not be limited to, eharges or expenses whieh may result from the future need
to remove the Faeilities or from the presenee of any hazardous substanee or material in or diseharging from
the Facilities. Nothing in this paragraph shall be interpreted to require the UAO to indemnify the FOOT for
the FOOT's own negligence; however, it is the intent that all other costs and expenses of any nature be the
resDonsibilitv of the UAO.
6. Oefault
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 sixty (60) days
from written notice thereof from FOOT.
2. Pursue a claim for damages suffered by the FOOT or the public.
3. If the Utility Work is reimbursable under this Agreement, withhold reimbursement payments until
the breach is cured. The right to withhold shall be limited to actual claim payments made by
FOOT to third parties.
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4. If the Utility Work is reimbursable under this Agreement, offset any damages suffered by the FOOT
or the public against payments due under this Agreement for the same Project. The right to offset
shall be limited to actual claim payments made by FOOT to third parties.
5. 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 sixty (60) days from written notice
thereof from FOOT.
6. Pursue any other remedies legally available.
7. Perform any work with its own forces or through eontraetors 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 sixty (60) days
from written notice thereof from the UAO.
2. If the breach is a failure to pay an invoiee for Utility Work whieh is reimbursable under this
Agreement, pursue any statutory remedies that the UAO may have for failure to pay invoices.
3. 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 nor from any statutory obligations that either party may have with regard to
the subjeet matter hereof.
7. Foree Majeure
Neither the UAO nor the FOOT shall be liable to the other for any failure to perform under this Agreement to the
extent sueh performanee is prevented by an act of God, war, riots, natural catastrophe, or other event beyond the
eontrol of the non-performing party and whieh could not have been avoided or overeome by the exercise of due
diligence; provided that the party claiming the excuse from performanee has (a) promptly notified the other party of
the oceurrence and its estimated duration, (b) promptly remedied or mitigated the effect of the oeeurrence to the
extent possible, and (c) resumed performance as soon as possible.
8. Indemnification
FOR GOVERNMENT -OWNEO 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, eost, charge, or expense arising out of any aets, aetion,
error, neglect, or omission by the UAO, its agents, employees, or contractors during the performaneeof 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 eaused 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 sueh 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.
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FOR NON-GOVERNMENT-OWNEO 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, ~hall 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 sueh notiee shall not be excused beeause 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 exeuse performanee of this provision by the UAO. The UAO shall pay all costs and fees related to this
obligation and its enforeement by the FOOT. The FOOT's delay in notifying the UAO of a claim shall not release
UAO of the above duty to defend.
9. Miscellaneous
a. Time is of essence in the performanee of all obligations under this Agreement.
b. The Facilities shall at all times remain the property of and be properly proteeted and maintained by the
UAO in accordance with the current Utility Aecommodation Manual in effect at the time the Plans Package
is prepared and the eurrent utility permit for the Facilities; provided, however, that the UAO shall not be
obligated to protect or maintain any of the Facilities to the extent the FOOT's contraetor has that obligation
as part of the Utility Work pursuant to the FOOT's specifieations.
e. The FOOT may unilaterally eaneel this Agreement for refusal by the UAO to allow publie aeeess to all
documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, and
made or reeeived by the UAO in eonjunction with this Agreement.
d. This Agreement constitutes the complete and final expression of the parties with respeet to the subjeet
matter hereof and supersedes all prior agreements, understandings, or negotiations with respeet thereto,
except that the parties understand and agree that the FOOT has manuals and written policies and
proeedures whieh may be applicable at the time of the Projeet and the relocation of the Facilities.
e. This Agreement shall be governed by the laws of the State of Florida. Any provision hereof found to be
unlawful or unenforeeable shall be severable and shall not affeet the validity of the remaining portions hereof.
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 reeeived 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, notiees shall be sent to the
followinQ addresses:
If to the Ul~'.o:
Mr. Tom Robertson. Clearwater Gas System
400 N. Mvrtle Avenue. Clearwatr. FL 33755
If to the FOOT:
District Utility f::ngineer
m01 N. MoKlnlev Drive, 7::".?20
Tampa. FL 33612-6456
710-01 Q-22
UTILITIES
02/03
Page 8 of 8
10. 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 doctJment itself. Hand notations on affected portions of
this document may refer to changes reflected in the above-na med Appendix but are for referenee purposes only and
do not change the terms of the doeument. By signing this document, the UAO hereby represents that no change
has been made to the text of this document except through th e terms of the appendix entitled "Changes To Form
Document."
You MUST signify by selecting or checking which, of the following applies:
@ No changes have been made to this Forms Document and no Appendix entitled "Changes To Form
. Document" is attached.
o No changes nave been made to this Form Document, but changes are included on the attached Appendix
entitled "Changes to Forms Document."
IN WlTNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written.
Countersigned: CITY OF CLEARWATER, FLORIDA
Brian J. Aungst
Mayor-Commissioner
By:
William B. Horne, II
City Manager
Approved as to form:
Attest:
Cynthia E. Goudeau
City Clerk
Laura Lipowski
Assistant City Attorney
Recommend Approval by the District Utility Office
BY: (Signature)
DATE:
FOOT Legal Review
BY: (Signature)
DATE:
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
BY: (Signature)
DATE:
(Typed Name:
)
)
(Typed Title:
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY: (Signature)
DATE:
{Typed Name:
(Typed Title:
MEMORANDUM OF AGREEMENT
THIS AGREEMENT, made and entered into this , day of ,
2003, by and between the State of Florida, Department of Transportation, hereinafter
referred to as "FOOT' and the State of Florida, Department of Financial Services, Division of
Treasury and City of Clearwater Gas System, hereinafter referred to as the "Participant" .
WITNESSETH
"'!
WHEREAS, "PDOr' is currently constructing the following project:
MainPinancial Project No.: 257050-1-56-03
County: PINELLAS
hereinafter referred to as the "Project".
NOTE: ONLY THE NEXT TWO PARAGRAPHS MAY BE MODIFIED AS APPROPRIATE
WITHOUT PRIOR APPROVAL OF FDOT'S COMPTROLLER.
WHEREAS, FDOT and the Participant entered into a Locally Funded Agreement
dated , wherein DOT agreed to perform certain work on behalf of the
Participant in conjunction with the Project.
WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in the
best interest of the FDOT and the Participant to establish an interest bearing escrow
account to provide funds for the work performed on the Project on behalf of the Participant
by the FDOT.
NOW THEREFORE, in consideration of the premises and the covenants contained
herein, the parties agree to the following:
1. An initial deposit in the amount of $ 321.160.50
(Three hundred twenty one thousand one hundred sixty dollars and fifty cents) will
be made by the Participant into an interest bea ring escrow account established by the
FDOT for the purposes of the project. Said escrow account will be opened with the
Department of Financial Services, Division of Treasury, Bureau of Collateral Management
on behalf of the FDOT upon receipt of this Memorandum of Agreement. Such account will
be an asset of FDOT.
2. Other deposits will be made only by the Participant as necessary to cover the
cost of additional work prior to the execution of any Supplemental Agreements.
3. All deposits shall be made payable to the Department of Financial Services.
Revenue Processing and mailed to the FDOT Office of Comptroller for appropriate
processing at the following address:
Florida Department of Transportation
Office of Comptroller
3717 Apalachee Parkway, Suite B
Mail Station 24
Tallahassee, Florida 32311
ATTN: LFA Section
A copy of this Agreement should accompany any deposits. When the check is
mailed to Tallahassee, the District Office should instruct the Participant to
mail the District Office a copy of the check.
4. The FDOTs Comptroller and/or her designees shall be the sole signatories on
the escrow account with the Department of Financial Services and shall have sole authority
to authorize withdrawals from said account.
5. Unless instructed otherwise by the parties hereto, all interest accumulated in
the escrow account shall remain in the account for the purposes of the project as defined in
the LFA.
6. The Department of Financial Services agrees to provide written confirmation
of receipt of funds to the FDOT.
7. The Department of Financial Services further agrees to provide periodic
reports to the FDOT. '
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
COMPTROLLER
STATE OF FLORIDA
DEPARTMENT OF FINANCIAL SERVICES
DIVISION OF TREASURY
PARTICIPANT SIGNATURE
William B. Horne, II
City Manager
PARTICIPANTNAlvIE & TITLE
112 S. Osceola Avenue
Clearwater, Florida 33756
P ARTICIP ANT ADDRESS
59-6000289
FEDEl~'\L ElVIPLOYER ID NUMBER