UTILITY WORK BY HIGHWAY CONTRACTOR - FINANCIAL PROJECT ID: 406541-1-52-01
Dyer, Riddle, Mills
& Precourt, Inc.
Principals
Wayne D. Chalifoux
Donaldson K. Barton, Jr.
Lucius J. Cushman, Jr.
Jon S. Meadows
Stephen L. Precourt
Lawrence L. Smith, Jr.
3816 West Linebaugh Avenue
Suite 400
Tampa, Florida 33618
Phon: 813.265.9800
Fax: 813.265.9822
. Bartow, Florida
. Charlotte, North Carolina
. Chipely, Florida
. DeLand, Florida
. Ft. Myers, Florida
· Jacksonville, Florida
· Orlando, Florida
. PlI1la.IDa City Beach, Florida
. Tallahassee, Florida
. Tampa, Florida
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I December 23,2004
Mt:Robert Kalch
City of Clearwater
100 S. Myrtle Avenue
Clearwater, FL 33758
Subject:
FPID: 406541-1-52-01 /County: Pinellas
SR: 60/Description: Gulf to Bay Boulevard from
Fredrica A venue to Highland A venue
Dear Mr. Kalch:
Attached is (1) Original of the approved Utility Work Agreement covering adjustments of
facilities owned by City of Clearwater.
Also attached is (1) copy of the City Council Meeting, City of Clearwater,
Dated October 7, 2004.
If you have any questions, please do not hesitate to call me at
(813) 265-9800.
Enclosures
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STATE OF FLORnJA DEPARTMENT OF TRANSPORTATION
710-010-57
UTILITIES
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Financial Project 10: 406541-1-52-01 Federal Project 10: N/A
Work Program Item No. (old): N/A County/Section No: Pinellas
State Job No. (old): N/A District Document No: N/A
UTILITY WORK BY HIGHWAY CONTRACTOR
(LUMP SUM)
THIS AGREEMENT, made and entered into this d.d- \-)0 day of Dee e \o\A..be r- , year of JO() Lf ,by and
between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the"FDOT", and
City of Clearwater , hereinafter referred 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 shall 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
Cleveland Street from Fredrica Ave. to Highlands Ave.
State Road No. 60 , 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 FDOT 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 Worit in its plans and specifications for the Project and will include the
Utility Work as part of the FOOT's COI'lstruction 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 L..H- ) calendar days prior to the date on which the FOOT
advertises the Project for bids, pay the FDOT the amount of $ 50,000.00 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.
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.
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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 tf1e
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 remard
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 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 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 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.
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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 besubjeot, 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. 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 FOOT's Contractor is obligated to perform these activities during the
period of construction.
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.
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 any future location, adjustment, or
modification 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 hereoffound 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.
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UTILITIES
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1. 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 pl"oof of prior actual receipt is provided. The UAO
shall have a continuil)g 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:
Michael D. Ouillen, P.E., City Enqineer
P.o. Rox 4748
CJearwater. FL 33758-4748
If to the FDOT:
~~g~ ~~~*rr n~~~;~~~ ~~tt~~y A9min~strator
Department ~f Transportation~ District 7
11?()1 I\T MrJ{inlPY nrivp 'T'rJrnprJ. PI. 33612
MS 7-820
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:
(g) No changes have been made to this Forms Document and no Appendix entitled "Changes To Form
Document" is attached.
o 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:
BY:(Signature)
(Typed Name:
(Typed Title:
DATE:
)
)
DATE: ~W
FDOT Legal ReV1::a
BY:(Signature) ~/'11;{t(A
~
DATE:
I'LWtJ 1.1
710-010-57
UTILITIES
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STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
BY:(Signature) JUAU: ?r );.g/fi.-
(Typed Name:
(Typed Title:
DATE:
! 2-}-~ /09'
I '
)
)
FEDERAL HIGHWAY ADMINISTRATION (if appficable)
BY:(Signature)
DATE:
(Typed Name:
(Typed Title:
)
)
Signature Page for City of Clearwater
Utility Work by Highway Contractor
Florida Department of Transportation
Financial Project 10: 406541-1-52-01
Countersigned:
Bri~
Mayor
CITY OF CLEARWATER, FLORIDA
-
By:
~6.~-:u:
William B. Horne II
City Manager
Attest:
- f ]i.- ()...
la E. Goudeau
lerk