QUIET ZONE IMPROVEMENT AGREEMENT - FPN 436014-2-54-13Financial Project No.: 436014- 2 -54 -13
Fund: DPTO
FLAIR Approp: 088808
Contract No: G0D48
Function: 215
FLAIR Obj.: 751000
Contract Amount: $187,322.00
Org. Code: 55 31 00 00 933
DUNS No: 059071860 -0000
Vendor No.: F596000289 -046
CSFA.: 55.021
Title (Rail Development Grants)
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION
QUIET ZONE IMPROVEMENT AGREEMENT
This Quiet Zone Improvement Agreement ( "Agreement "), is entered into this 23rd day of
June, 2016, between the State of Florida, Department of Transportation ( "Department ") and City
of Clearwater ( "Agency "). The Department and the Agency are sometimes referred to in this
Agreement individually as a "Party" and collectively as the "Parties."
RECITALS
A. The Department has determined that the project described in Exhibit "A" attached
to and incorporated in this Agreement is for the public purpose of quiet zone capital
improvements in response to the use of locomotive horns at highway -rail grade crossings, and
the Department is authorized pursuant to Chapter 2014 -51, Laws of Florida, to approve an
expenditure to the Agency for up to fifty percent of the nonfederal and nonprivate share of
project costs, with the remaining share being provided by the Agency.
B. The Department is prepared, in accordance with its adopted work program, to
undertake the project described as the Quiet Zone Improvements, in Fiscal Year 2015/16, which
project is known as FM #436014- 2 -54 -13 (the "Project").
C. The Agency is prepared to complete the Project at an estimated total cost of Three
hundred Seventy Four Thousand Six Hundred Forty Four and 00/100 Dollars ($374,644.00).
D. The Department is prepared to provide 50% of the total cost of construction of the
Project up to One Hundred Eighty Seven Thousand Three Hundred Twenty Two and 00 /100
Dollars ($187,322.00).
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, the Parties agree
as follows:
1. The Recitals above are true and correct and are made a part of this Agreement.
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2. The term of this Agreement shall begin upon the date of signature of the last party
to sign this Agreement ( "Effective Date ") and continue for three (3) years after the Effective
Date. If the Agency does not complete the Project within the time period allotted, this
Agreement will expire on the last day of the term of this Agreement as provided in this
paragraph unless an extension of the time period is requested by the Agency and granted in
writing by the Department prior to the expiration of the Agreement. Expiration of this
Agreement will be considered termination of the Project.
3. The Agency shall furnish the services to design and construct the Project which
consists of: a federally compliant quiet zone, and otherwise the Agency shall perform all other
necessary work to complete the Project, as specified in Exhibit "A ". Nothing in this Agreement
shall be construed as requiring the Agency to perform any activity which is outside of the scope
of services of the Project as defined in Exhibit "A ", which scope shall be limited to only design
and construction work.
4. The Agency shall be responsible for obtaining clearances /permits required for the
construction of the Project from the appropriate permitting authorities.
5. The Agency agrees to contract with CSX TRANSPORTATION, INC., (the
"Railroad ") for the Railroad to undertake the design, construction, and/or Consultant
Construction Engineering Inspection ( "CCEI ") of the Project in accordance with all applicable
federal, state and local statutes, rules and regulations, including Agency standards and
specifications. A professional engineer, registered in Florida, shall provide the certification that
all design and construction for the Project meets the minimum construction standards established
by the Department and the Railroad.
(a) The Agency understands that it is responsible for the preparation of all design
plans for the Project. The Agency shall use its normal procurement procedures
to hire either the Railroad or a consultant engineering firm to perform the
design services for the Project.
(b) Execution of this Agreement by both Parties shall be deemed a Notice to
Proceed to the Agency for the design phase of the Project. Any work
performed prior to the execution of this Agreement is not subject to
reimbursement.
(c) The Agency will provide one (1) copy of the final design plans and
specifications and final bid documents to the Department's Contract Manager,
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who must approve such plans and specifications, and final bid documents in
writing, prior to commencing construction of the Project.
(d) The Agency shall hire the Railroad or a contractor using the Agency's normal
bid procedures to perform the construction work for the Project.
(e) Prior to commencing the construction work described in this Agreement, the
Agency shall request a Notice to Proceed from the Department's Contract
Manager, at (850) 414 -4620 or from an appointed designee. Any construction
work performed prior to the issuance of the Notice to Proceed for
Construction is not subject to reimbursement.
(f) The Agency shall use commercially reasonable efforts to ensure that the
construction work under this Agreement is performed in accordance with the
approved construction documents.
(g) Upon completion of the work authorized by this Agreement, the Agency shall
notify the Department in writing of the completion of construction of the
Project; and for all design work that originally required certification by a
Professional Engineer, this notification shall contain an Engineers
Certification of Compliance, signed and sealed by a Professional Engineer, the
form of which is attached to this Agreement as Exhibit "C ". The certification
shall state that work has been completed in compliance with the Project
construction plans and specifications. If any deviations are found from the
approved plans, the certification shall include a list of all deviations along
with an explanation that justifies the reason to accept each deviation.
(h) The Agency must submit the final invoice to the Department within one
hundred eighty (180) days after the final acceptance of the Project.
6. Upon completion of the Project, the Agency or the Railroad, as set forth in a
separate agreement between the Agency and the Railroad, shall be responsible for the
maintenance of the facilities that are constructed under this Agreement. The terms of this
provision shall survive the termination of this Agreement.
7. If the Agency utilizes its own work force for any services for the Project, all costs
and expenses thereof shall not be subject to reimbursement.
8. Upon request, the Agency agrees to provide quarterly progress reports to the
Department in the standard format used by the Agency. The Department will be entitled at all
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times to be advised, at its request, as to the status of the Project being constructed by the Agency
and of details thereof. Either party to the Agreement may request and shall, within a reasonable
time thereafter, be granted a conference with the other party.
9. The total estimated cost of the Project is Three Hundred Seventy Four Thousand
Six Hundred Forty Four and 00 /100 Dollars ($374,644.00). This amount is based on the
Schedule of Funding, Exhibit `B" attached to and incorporated in this Agreement. The
Department agrees to reimburse the Agency 50% of actual costs incurred, excluding Agency
overhead, up to an amount not to exceed One Hundred Eighty Seven Thousand Three Hundred
Twenty Two and 00 /100 Dollars ($187,322.00). Project costs eligible for reimbursement will be
allowed only from the Effective Date of this Agreement. The funding for this Project is
contingent upon annual appropriation by the Florida Legislature, the availability of funds
pursuant to this Paragraph 10, approval of all plans, specifications, contracts, or other obligating
documents as required by the Department, and all other terms of this Agreement, Department
approval of costs in excess of the approved funding or attributable to actions which have not
received the required approval of the Department and all other terms of this Agreement, and
Department approval of the Project scope and budget at the time appropriation authority is
available. The Agency agrees to bear all expenses in excess of the Department's participation.
Travel costs will not be reimbursed.
(a) A Project budget shall be prepared by the Agency and approved by the
Department. The Agency shall maintain the budget, carry out the Project and
shall incur obligations against Project funds only in conformity with the latest
approved budget for the Project. No budget increase or decrease shall be
effective unless it complies with fund participation requirements established
in this Paragraph 9 of this Agreement, or any amendment thereto.
(b) Unless otherwise permitted, payment will begin in the year the Project or
Project phase is scheduled in the adopted work program as of the Effective
Date of this Agreement. Payment will be made for actual costs incurred as of
the date the invoice is submitted with the final payment due upon receipt of a
final invoice.
(c) The Agency shall provide quantifiable, measurable, and verifiable units of
deliverables. Each deliverable must specify the required minimum level of
service to be performed and the criteria for evaluating successful completion.
The Project, identified as Project Number 436014- 1 -54 -13 and the
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quantifiable, measurable, and verifiable units of deliverables are described
more fully in Exhibit "A ".
(d) Invoices shall be submitted by the Agency in detail sufficient for a proper pre -
audit and post -audit thereof, based on the quantifiable, measurable and
verifiable deliverables as established in Exhibit "A ". Deliverables must be
received and accepted in writing by the Department's Project Manager or
designee prior to reimbursements.
(e) Supporting documentation must establish that the deliverables were received
and accepted in writing by the Agency and must also establish that the
required minimum level of service to be performed based on the criteria for
evaluating successful completion as specified in Paragraph 4. and Exhibit "A"
was met.
(f) There shall be no reimbursement for travel expenses under this Agreement.
(g) Payment shall be made only after receipt and approval of goods and services
unless advance payments are authorized by the Chief Financial Officer of the
State of Florida under Chapters 215 and 216, F.S.
(h) If the Department determines that the performance of the Agency is
unsatisfactory, the Department shall notify the Agency of the deficiency to be
corrected, which correction shall be made within a time -frame to be specified
by the Department. The Agency shall, within five days after notice from the
Department, provide the Department with a corrective action plan describing
how the Agency will address all issues of contract non - performance,
unacceptable performance, failure to meet the minimum performance levels,
deliverable deficiencies, or contract non - compliance. If the corrective action
plan is unacceptable to the Department, the Agency shall be assessed a non-
performance retainage equivalent to 10% of the total invoice amount. The
retainage shall be applied to the invoice for the then current billing period.
The retainage shall be withheld until the Agency resolves the deficiency. If
the deficiency is subsequently resolved, the Agency may bill the Department
for the retained amount during the next billing period. If the Agency is unable
to resolve the deficiency, the funds retained may be forfeited at the end of the
Agreement's term.
(i)
The Agency should be aware of the following time frames. Upon receipt of
an invoice, the Department has twenty (20) days to inspect and approve the
goods and services. The Department has twenty (20) days to deliver a request
for payment (voucher) to the Department of Financial Services. The twenty
(20) days are measured from the latter of the date the invoice is received or
the goods or services are received, inspected and approved. If a payment is
not available within forty (40) days, a separate interest penalty at a rate as
established pursuant to Section 55.03(1), Florida Statutes, will be due and
payable, in addition to the invoice amount. Interest penalties of less than one
dollar ($1.00) will not be enforced unless the Agency requests payment.
Invoices which have to be returned to the Agency because of Agency
preparation errors will result in a delay in the payment. The invoice payment
requirements do not start until a properly completed invoice is provided to the
Department. A Vendor Ombudsman has been established within the
Department of Financial Services. The duties of this individual include acting
as an advocate for entities who may be experiencing problems in obtaining
timely payment(s) from a state agency. The Vendor Ombudsman may be
contacted at (850) 413 -5516 or by calling the Division of Consumer Services
at (877) 693 -5236.
(j) Any Project funds made available by the Department pursuant to this
Agreement which are determined by the Department to have been expended
by the Agency in violation of this Agreement or any other applicable law or
regulation shall be promptly refunded in full to the Department. Acceptance
by the Department of any documentation or certifications, mandatory or
otherwise permitted, that the Agency files shall not constitute a waiver of the
Department's rights as the funding agency to verify all information at a later
date by audit or investigation.
(k) Records of costs incurred under the terms of this Agreement shall be
maintained and made available upon request to the Department at all times
during the period of this Agreement and for five years after final payment is
made. Copies of these documents and records shall be furnished to the
Department upon request. Records of costs incurred include the Other Party's
general accounting records and the project records, together with supporting
documents and records, of the contractor and all subcontractors performing
work on the project, and all other records of the Contractor and subcontractors
considered necessary by the Department for a proper audit of costs.
10. In the event this Agreement is in excess of $25,000.00 (Twenty Five Thousand
Dollars and 00 /100) and a term for a period of more than one (1) year, the provisions of Section
339.135(6)(a), Florida Statutes, are incorporated as follows:
"The Department, during any fiscal year, shall not expend money, incur
any liability, or enter into any contract which, by its terms, involves the
expenditure of money in excess of the amounts budgeted as available for
expenditure during such fiscal year. Any contract, verbal or written, made in
violation of this subsection is null and void, and no money may be paid on such
contract. The Department shall require a statement from the Comptroller of the
Department that funds are available prior to entering into any such contract or
other binding commitment of funds. Nothing herein contained shall prevent the
making of contracts for periods exceeding one (1) year, but any contract so made
shall be executory only for the value of the services to be rendered or agreed to be
paid for in succeeding fiscal years; and this paragraph shall be incorporated
verbatim in all contracts of the Department which are for an amount in excess of
$25,000.00 and which have a term for a period of more than one (1) year."
11. The Department's performance and obligation to pay under this Agreement is
contingent upon an annual appropriation by the Florida Legislature. The Parties agree that in the
event funds are not appropriated to the Department for the Project, this Agreement may be
terminated, which shall be effective upon the Department giving notice to the Agency to that
effect.
12. The administration of resources awarded through the Department to the Agency
by this Agreement may be subject to audits and/or monitoring by the Department. The following
requirements do not limit the authority of the Department to conduct or arrange for the conduct
of additional audits or evaluations of state financial assistance or limit the authority of any state
agency inspector general, the Auditor General, or any other state official. The Agency shall
comply with all audit and audit reporting requirements as specified below.
(a) In addition to reviews of audits conducted in accordance with Section 215.97,
Florida Statutes, monitoring procedures to monitor the Agency's use of state
financial assistance may include but not be limited to on -site visits by
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Department staff and /or other procedures including, reviewing any required
performance and financial reports, following up, ensuring corrective action,
and issuing management decisions on weaknesses found through audits when
those findings pertain to state financial assistance awarded through the
Department by this Agreement. By entering into this Agreement, the Agency
agrees to comply and cooperate fully with any monitoring
procedures /processes deemed appropriate by the Department. The Agency
further agrees to comply and cooperate with any inspections, reviews,
investigations, or audits deemed necessary by the Department, the Department
of Financial Services (DFS) or the Auditor General.
(b) The Agency, a nonstate entity as defined by Section 215.97(2)(m), Florida
Statutes, as a recipient of state financial assistance awarded by the Department
through this Agreement is subject to the following requirements:
i. In the event the Agency meets the audit threshold requirements
established by Section 215.97, Florida Statutes, the Agency must have
a State single or project - specific audit conducted for such fiscal year in
accordance with Section 215.97, Florida Statutes; applicable rules of
the Department of Financial Services; and Chapters 10.550 (local
governmental entities) or 10.650 (nonprofit and for - profit
organizations), Rules of the Auditor General. Exhibit D attached to
this Agreement indicates state financial assistance awarded through the
Department by this Agreement needed by the Agency to further
comply with the requirements of Section 215.97, Florida Statutes. In
determining the state financial assistance expended in a fiscal year, the
Agency shall consider all sources of state financial assistance,
including state financial assistance received from the Department by
this Agreement, other state agencies and other nonstate entities. State
financial assistance does not include Federal direct or pass - through
awards and resources received by a nonstate entity for Federal
program matching requirements.
ii. In connection with the audit requirements, the Agency shall ensure
that the audit complies with the requirements of Section 215.97(8),
Florida Statutes. This includes submission of a financial reporting
package as defined by Section 215.97(2)(e), Florida Statutes, and
Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and
for - profit organizations), Rules of the Auditor General.
iii. In the event the Agency does not meet the audit threshold
requirements established by Section 215.97, Florida Statutes, the
Agency is exempt for such fiscal year from the state single audit
requirements of Section 215.97, Florida Statutes. However, the
Agency must provide a single audit exemption statement to the
Department at FDOTSingleAudit `u)dot.state.fl.us no later than nine
months after the end of the Agency' s audit period for each applicable
audit year. In the event the Agency does not meet the audit threshold
requirements established by Section 215.97, Florida Statutes, in a
fiscal year and elects to have an audit conducted in accordance with
the provisions of Section 215.97, Florida Statutes, the cost of the audit
must be paid from the Agency's resources (i.e., the cost of such an
audit must be paid from the Agency's resources obtained from other
than State entities).
iv. In accordance with Chapters 10.550 (local governmental entities) or
10.650 (nonprofit and for - profit organizations), Rules of the Auditor
General, copies of financial reporting packages required by this
Agreement shall be submitted to:
Florida Department of Transportation
Office of Comptroller, MS 24
605 Suwannee Street
Tallahassee, FL 32399 -0405
Email: FDOTSingleAudit c dot.state.fl.us
And
State of Florida Auditor General
Local Government Audits /342
111 West Madison Street, Room 401
Tallahassee, FL 32399 -1450
Email: flaudgen localgovt �aud.state.fl.us
v. Any copies of financial reporting packages, reports or other
information required to be submitted to the Department shall be
submitted timely in accordance with Section 215.97, Florida Statutes,
and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit
and for - profit organizations), Rules of the Auditor General, as
applicable.
vi. The Agency, when submitting financial reporting packages to the
Department for audits done in accordance with Chapters 10.550 (local
governmental entities) or 10.650 (nonprofit and for - profit
organizations), Rules of the Auditor General, should indicate the date
the reporting package was delivered to the Agency in correspondence
accompanying the reporting package.
vii. Upon receipt, and within six months, the Department will review the
Agency's financial reporting package, including corrective action
plans and management letters, to the extent necessary to determine
whether timely and appropriate corrective action on all deficiencies
has been taken pertaining to the state financial assistance provided
through the Department by this Agreement. If the Agency fails to have
an audit conducted consistent with Section 215.97, Florida Statutes,
the Department may take appropriate corrective action to enforce
compliance.
viii. As a condition of receiving state financial assistance, the Agency shall
permit the Department, or its designee, DFS or the Auditor General
access to the Agency's records including financial statements, the
independent auditor's working papers and project records as
necessary. Records related to unresolved audit findings, appeals or
litigation shall be retained until the action is complete or the dispute is
resolved.
(c) The Agency shall retain sufficient records demonstrating its compliance with
the terms of this Agreement for a period of five years from the date the audit
report is issued and shall allow the Department, or its designee, DFS or the
Auditor General access to such records upon request. The Agency shall ensure
that the audit working papers are made available to the Department, or its
designee, DFS or the Auditor General upon request for a period of five years
from the date the audit report is issued unless extended in writing by the
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Department.
13. The Agency shall permit, and shall require its contractors and subcontractors to
permit, the Department's authorized representatives to inspect all work, materials, payrolls, and
records, and to audit the books, records, and accounts pertaining to the financing and
development of the Project.
14. The Department specifically reserves the right to review and approve any and all
third party contracts with respect to the Project before the Agency executes or obligates itself in
any manner requiring the disbursement of Department funds, including consultant, purchase of
commodities contracts, or amendments thereto. If the Department chooses to review and
approve third party contracts for this Project and the Agency fails to obtain such approval that
shall be sufficient cause for nonpayment by the Department. The Department specifically
reserves unto itself the right to review the qualifications of any consultant or contractor and to
approve or disapprove the employment of same.
15. Execution of this Agreement constitutes a certification that the Agency has and
will maintain the ability to repair or replace any Project equipment or facilities in the event of
loss or damage due to any accident or casualty for the useful life of such equipment or facilities
as set forth in a separate agreement between the Agency and the Railroad. In the event of the
loss of such equipment or facilities, the Agency shall either replace the equipment or facilities or
reimburse the Department to the extent of its interest in the lost equipment or facility. The
Department may waive or modify this section as appropriate.
16. The Agency shall 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
Agency in conjunction with this Agreement. Failure by the Agency to grant such public access
shall be grounds for immediate unilateral cancellation of this Agreement by the Department.
17. The Agency shall comply with all federal, state and local laws and ordinances
applicable to the work or payment for work thereof.
18. Funds may not be used for the purpose of lobbying the Florida Legislature,
judicial branch, or any state agency, in accordance with Section 216.347, Florida Statutes.
19. The Agency and the Department agree that the Agency, its employees, and
subcontractors are not agents of the Department as a result of this Agreement.
20. This Agreement may be canceled by the Department in whole or in part at any
time the interest of the Department requires such termination. The Department also reserves the
right to seek termination or cancellation of this Agreement in the event the Agency shall be
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placed in either voluntary or involuntary bankruptcy. The Department further reserves the right
to terminate or cancel this Agreement in the event an assignment is made for the benefit of
creditors. Additionally, the following provisions apply to termination or cancellation by the
Department:
(a) If the Department determines that the performance of the Agency is not
satisfactory, the Department shall have the option of (a) immediately terminating the
Agreement, or (b) notifying the Agency of the deficiency with a requirement that the
deficiency be corrected within a specified time, otherwise the Agreement will be
terminated at the end of such time, or (c) taking whatever action is deemed appropriate by
the Department.
(b) If the Department requires termination of the Agreement for reasons other
than unsatisfactory performance of the Agency, the Department shall notify the Agency
of such termination, with instructions to the effective date of termination or specify the
stage of work at which the Agreement is to be terminated.
(c) If the Agreement is terminated before performance is completed, the
Agency shall be paid only for that work satisfactorily performed for which costs can be
substantiated.
(d) The Department will consider the employment of unauthorized aliens, by
any contractor or subcontractor, as described by Section 274A (e) of the Immigration and
Nationalization Act, cause for termination of this Agreement.
(e) The Department specifically reserves its right to immediately terminate
this Agreement and demand repayment of the funds the Department has paid to the
Agency, should the Agency fail to complete the Project prior to the expiration of this
Agreement.
21. In no event shall the making by the Department of any payment to the Agency
constitute or be construed as a waiver by the Department of any breach of covenant or any
default which may then exist, on the part of the Agency, and the making of such payment by the
Department while any such breach or default shall exist shall in no way impair or prejudice any
right or remedy available to the Department with respect to such breach or default.
22. This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Florida. Venue for any action arising under this Agreement shall be in Leon
County, Florida. Any provision in this Agreement determined by a court of competent
jurisdiction, or any other legally constituted body having jurisdiction, to be invalid or
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unenforceable shall be severable and the remainder of this Agreement shall remain in full force
and effect, provided that the invalidated or unenforceable provision is not material to the
intended operation of this Agreement.
23. The Agency affirms that it is aware of the provisions of Section 287.133(2) (a),
Florida Statutes. A person or affiliate who has been placed on the convicted vendor list
following a conviction for a public Agency crime may not submit a bid on a contract to provide
any goods or services to a public Agency, may not submit a bid on a contract with a public
Agency for the construction or repair of a public building or public work, may not submit bids on
leases of real property to a public Agency, may not be awarded or perform work as a contractor,
supplier, subcontractor, or consultant under a contract with any public Agency, and may not
transact business with any public Agency in excess of the threshold amount provided in Section
287.017, Florida Statutes, for CATEGORY TWO for a period of thirty six (36) months from the
date of being placed on the convicted vendor list. The Agency agrees that it shall not violate
Section 287.133(2) (a), Florida Statutes, and further acknowledges and agrees that any
conviction during the term of this Agreement may result in the termination of this Agreement.
24. The Agency will not discriminate against any employee employed in the
performance of this Agreement, or against any applicant for employment because of age,
ethnicity, race, religious belief, disability, national origin, or sex. The Agency shall provide a
harassment -free workplace, with any allegation of harassment given priority attention and action
by management. The Agency shall insert similar provisions in all contracts and subcontracts for
services by this Agreement. The Agency affirms that it is aware of the provisions of Section
287.134(2) (a), Florida Statutes. An Agency or affiliate who has been placed on the
discriminatory vendor list may not submit a bid on a contract to provide any goods or services to
a public Agency, may not submit a bid on a contract with a public Agency for the construction or
repair of a public building or public work, may not submit bids on leases of real property to a
public Agency, may not be awarded or perform work as a contractor, supplier, subcontractor, or
consultant under a contract with any public Agency, and may not transact business with any
public Agency. The Agency further agrees that it shall not violate Section 287.134(2)(a), Florida
Statutes, and acknowledges and agrees that placement on the list during the term of this
Agreement may result in the termination of this Agreement.
25. The Agency is encouraged to use small businesses, including minority and
women -owned businesses as subcontractors or sub - vendors under this Agreement.
26. The Department and the Agency acknowledge and agree to the following:
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i. The Agency shall utilize the U.S. Department of Homeland
Security's E- Verify system to verify the employment eligibility of all new
employees hired by the Agency during the term of the contract; and
ii. The Agency shall expressly require any contractors and
subcontractors performing work or providing services pursuant to the state
contract to likewise utilize the U.S. Department of Homeland Security's E- Verify
system to verify the employment eligibility of all new employees hired by the
contractor /subcontractor during the contract term.
27. In the event the Agency desires to modify any of the terms and conditions of this
Agreement, the Agency shall make such request for modification in writing to the Department at
any time during the term of this Agreement.
28. The Agency shall not assign, sublicense, or otherwise transfer its rights, duties, or
obligations under this Agreement without the prior written consent of the Department, which
consent will not be unreasonably withheld. Any assignment, sublicense, or transfer occurring
without the required written approval will be null and void. The Department will at all times be
entitled to assign or transfer its rights, duties, or obligations under this Agreement to another
governmental agency in the State of Florida, upon giving prior written notice to the Agency. In
the event that the Department approves a transfer of the Agency's obligations, the Agency
remains responsible for all work performed and all expenses incurred in connection with this
Agreement.
29. All notices pertaining to this Agreement are in effect upon receipt by either Party,
shall be in writing, and shall be transmitted either by personal hand delivery; United States Post
Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile may
be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses
and the contact persons set forth below for the respective Parties shall be the places where
notices shall be sent, unless prior written notice of change of address is given.
DEPARTMENT:
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION
STATE RAIL OPERATIONS AND PROGRAMS ADMINISTRATOR
605 SUWANNEE STREET, MS 25
TALLAHASSEE, FL 32399 -0450
PHONE: 850- 414 -4620
FAX: 850- 414 -4508
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AGENCY:
CITY OF CLEARWATER
MUNICIPAL SERVICES BUILDING
100 SOUTH MYRTLE AVENUE, SUITE 22
CLEARWATER, FLORIDA 33756
PHONE: (727) 562 - 4750
FAX: (727) 562 - 4755
30. This Agreement embodies the entire agreement of the Parties. There are no
provisions, terms, conditions, or obligations other than those contained in this Agreement. This
Agreement supersedes all previous communication, representation, or agreement, either verbal or
written, between the Parties. No amendment will be effective unless reduced to writing and
signed by an authorized officer of the Agency and the authorized officer of the Department or
his/her delegate.
31. This Agreement may be executed in duplicate originals.
The remainder of this page intentionally left blank
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IN WITNESS WHEREOF, the Parties have executed this AgreemeYit on the date(s) below.
FDOT
State of Florida, Department of Transportation
AGENCY
By: c- V c/ By:
Print ame: 613 6_ '
6a,, Print Name:
ASSISTANT SECRETARY
Title: INTERMODAL SYSTEMS IDFVELOPMENT Title:
/Z3//6. As approved by the Board on:
Date:
Legal I view:
See attached Encumbrance Form for date of
funding approval by Comptroller
Countersigned:
4€Atle\1C( Attof
George N. Cretekos
Mayor
Attest:
Legal Review:
County Attorney
CITY OF CLEARWATER, FLORIDA
By:
Approved as to form: Attest:
off
Ma'hew S ¶ *or'. Rosemarie Call
211,,,J) lLu.,m
William B. Horne II
City Manager
Assistant City Attorney
16
City Clerk
EXHIBIT "A"
SCOPE OF SERVICES
Financial Project Number: 436014- 1 -54 -07
This exhibit forms an integral part of that certain Quiet Zone Improvement Agreement entered
into this day of May, 2016, between the State of Florida, Department of Transportation
( "Department ") and City of Clearwater ( "Agency ").
PROJECT LOCATION:
City of Clearwater in Pinellas County, Florida, USA
The Crossings are located on the CSX Rail Corridor that runs within the City of Clearwater city
limits. The crossing numbers and (local street names) are as follow:
#626647E (Lakeview Road), 626794S (Pinellas Street), 626795Y (Grand Central Street),
626796F (Jeffords Street), 626797M (Druid Road), 626803N (Turner Street), 626804V
(Chestnut Street / SR 60), 626805C (Court Street / SR 60), 626806J (Franklin Street), 626807R
(Pierce Street), 626808X (Park Street), 626809E (Cleveland Street), 626810Y (Laura Street),
626811F (Hendricks Street), 626812M (Grove Street), 626813U (Drew Street)
Project Description:
The Agency requests rail development grant funds to perform Quiet Zone Improvements
associated with at -grade railroad crossings.
SPECIAL CONSIDERATION:
Unless terminated earlier, design work on the Project may commence upon the full execution of
this Agreement, and construction work may commence upon the Department's issuance of a
Construction Notice to Proceed. All work on the Project shall be completed on or before three
(3) years after the Effective Date of this Agreement. If the Agency does not complete the Project
within the time period allotted, this Agreement will expire on the last day of the term of this
Agreement unless an extension of the time period is requested by the Agency and granted in
writing by the Department prior to the expiration of the Agreement. Expiration of this
Agreement will be considered termination of the Project.
Prior to commencing the construction work described in this Agreement, the Agency shall
request a Notice to Proceed from the Department's Contract Manager or from an appointed
designee and provide one (1) copy of the final design plans and specifications and final bid
documents to the department's Contract Manager prior to commencing construction of the
project. Any construction work performed prior to the issuance of the Notice to Proceed for
construction is not subject to reimbursement.
Execution of this Agreement by both Parties shall be deemed a Notice to Proceed to the Agency
for the design phase of the project. Any work performed prior to the execution of this
Agreement is not subject to reimbursement.
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Exhibit "B"
ESTIMATED SCHEDULE OF FUNDING
Financial Project Number 436014- 1 -54 -07
Location: Description of Work: Est. Payment Schedule: Total: State Funds:
626647E Signage N/A N/A
626794S Lights /Gates /Signage N/A N/A
626795Y Signage N/A N/A
626796F Signage (12 mos. after effective)* N/A N/A
626797M Signage N/A N/A
626803N Signage N/A N/A
626804V Signage N/A N/A
626805C Signage N/A N/A
626806J Signage N/A N/A
626807R Signage N/A N/A
626808X Signage N/A N/A
626809E Signage (24 mos. after effective)* N/A N/A
626810Y Signage N/A N/A
626811F Lights /Gates /Median/Signage N/A N/A
626812M Lights /Gates/Median/Signage N/A N/A
626813U Signage (36 mos. after effective)* N/A N/A
Design Cost
$0.00 / Crossing = N/A N/A
(concurrent with const.)
TOTAL
N/A N/A
Project Cost: N/A
State (DPTO) - 50% of total up to N/A
Local N/A
All work is scheduled to be completed by (36 months after execution).
* The estimated payment schedule dates shown are the deadlines to invoice for grant award payments. Invoices may be submitted
prior to the deadline dates if desired. The schedule reflects a minimum of three (3) crossing improvements per year the order of
crossing improvement is arbitrary.
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EXHIBIT "C"
NOTICE OF COMPLETION AND ENGINEER'S CERTIFICATION OF COMPLIANCE
QUIET ZONE IMPROVEMENT AGREEMENT
Between
THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
and
THE CITY OF CLEARWATER
PROJECT DESCRIPTION: See Exhibit "A"
FINANCIAL PROJECT ID# 436014- 1 -54 -13
In accordance with the Terms and Conditions of the Quiet Zone Improvement Agreement, the
undersigned hereby provides notification that the work authorized by this Agreement is complete
as of , 20 .
By:
Name:
Title:
ENGINEER'S CERTIFICATION OF COMPLIANCE
In accordance with the Terms and Conditions of the Quiet Zone Improvement Agreement, the
undersigned hereby certifies that all work which originally required certification by a
Professional Engineer has been completed in compliance with the Project construction plans and
specifications. If any deviations have been made from the approved plans, a list of all
deviations, along with an explanation that justifies the reason to accept each deviation, will be
attached to this Certification. Also, with submittal of this certification, the Agency shall furnish
the Department a set of "as- built" plans certified by the Engineer of Record /CCEI.
SEAL:
By: , P.E.
Name:
Date:
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EXHIBIT "D"
STATE FINANCIAL ASSISTANCE (FLORIDA SINGLE AUDIT ACT)
STATE RESOURCES AWARDED PURSUANT TO THIS AGREEMENT CONSIST OF
THE FOLLOWING:
SUBJECT TO SECTION 215.97, FLORIDA STATUTES:
Awarding Agency: Florida Department of Transportation
State Project Title: RAIL DEVELOPMENT GRANTS
CSFA Number: 55.021
*Award Amount: $420,000.00
*The state award amount may change with supplemental agreements
Specific project information for CSFA Number 55.021 is provided at:
https://apps.fldfs.com/fsaa/searchCatalog.aspx
COMPLIANCE REQUIREMENTS APPLICABLE TO STATE RESOURCES
AWARDED PURSUANT TO THIS AGREEMENT:
State Project Compliance Requirements for CSFA Number 55.021 is provided at:
https://apps.fldfs.com/fsaa/searchCompliance.aspx
The State Projects Compliance Supplement is provided at:
https://apps.fldfs.com/fsaa/compliance.aspx
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CSX TRANSPORTATION, INC. Page 1
FORCE ACCOUNT ESTIMATE
ACCT. CODE : 709 - FL2078
ESTIMATE SUBJECT TO REVISION AFTER: 8/30/2016 DOT NO.: 626794S
CITY: Clearwater COUNTY: Pinellas STATE: FL
DESCRIPTION: Pinellas Street: Modify the crossing to accommodate a quiet zone - install 4 -quad gates with
sidelights, new house with remote monitoring and constant warning detection, and new AC meter
service. Install cantilever /gate combos in the NE and SW quadrants.
DIVISION: Jacksonville SUB -DIV: Clearwater MILE POST: SY 875.58
AGENCY PROJECT NUMBER: City of Clearwater
PRELIMINARY ENGINEERING:
212 Contracted & Administrative Engineering Services $
Subtotal $
CONSTRUCTION ENGINEERING /INSPECTION:
212 Contracted & Administrative Engineering Services $ 4,000
Subtotal $ 4,000
FLAGGING SERVICE: (Contract Labor/
070 Labor (Conductor - Flagman) $
050 Labor (Foreman /Inspector) $
070 Additive 113.98% (Transportation Department) $
050 Additive 118.39% (Engineering Department) $
230 Per Diem (Engineering Department) $
230 Expenses $
Subtotal $
SIGNAL & COMMUNICATIONS WORK: $ 336,586
TRACK WORK: $
PROJECT SUBTOTAL $ 340,586
900 CONTINGENCIES: 10.00% $ 34,059
GRAND TOTAL * * * * * * * * * * * * *, ********** * * * * * * * * * * * * * * * * * ** * * **,k * * * ** $ 374,644
DIVISION OF COST:
Agency 100.00% $ 374,644
Railroad $ -
TOTAL ********************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** $ 374,644
NOTE: Estimate is based on FULL CROSSING CLOSURE during work by Railroad Forces.
This estimate has been prepared based on site conditions, anticipated work duration periods, material prices, labor rates, manpower and resource availability, and
other factors known as of the date prepared. The actual cost for CSXT work may differ based upon the agency's requirements, their contractor's work procedures,
and /or other conditions that become apparent once construction commences or during the progress of the work
Office of Assistant Chief Engineer Public Projects -- Jacksonville, Florida
Estimated prepared by: C. Showman Approved by: JAS CSXT Public Project Group
DATE: 3/3/2016 REVISED: DATE: 03/03/16
Project Summary Sheet
TO: PT941SG@dot.state.fl.us
SUBJECT: FUNDS APPROVAL /REVIEWED FOR CONTRACT GOD48
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
FUNDS APPROVAL
Contract #G0D48 Contract Type: Method of Procurement:
Vendor Name: CLEARWATER
Vendor ID: VF596000289046
Beginning date of this Agmt: 06/21/16
Ending date of this Agmt: 06/30/19
***************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
ORG -CODE *EO *OBJECT *AMOUNT *FIN PROJECT *FCT *CFDA
(FISCAL YEAR) *BUDGET ENTITY *CATEGORY /CAT YEAR
AMENDMENT ID *SEQ. *USER ASSIGNED ID *ENC LINE(6S) /STATUS
***************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
Action: ORIGINAL Funds have been: APPROVED
55 310000933 *AC *751000 * 187322.00 *43601425413 *215 *
2016 *55100500 *088808/16
0001 *00 * *0001/04
TOTAL AMOUNT: *$ 187,322.00 *
FUNDS APPROVED /REVIEWED FOR ROBIN M. NAITOVE, CPA, COMPTROLLER
DATE: 06/22/2016
•
V
DEPARTMENT OF TRANSPORTATION
605 Suwannee Street 'MWrsa. Ronda 517390430 ern 0. WATTS
seueTARY
MEMORANDUM
•
DATE: February 6, 1996
TO: Patrick A. Brady, Transportation Safety Engineer
FROM: John C. Bottcher, Esq.
Office of General Counsel
COPIES: Fred Wise, Mike Melder
RE: Public Railroad- Highway Crossings
FEB — 7 i956
You have asked this office to render a legal opinion regarding the following question:
Brief statement 'of the question:
What is the proper classification and resulting requirements for a railroad- highway crossing when said
crossing was once properly classified as a "private crossing" but is now being used by the public as
a roadway?
Brief answer:
A "private crossing" becomes a "public crossing" when its intersecting road becomes a "public road."
Any other crossing is a "private crossing." A road is a public road when:
1. The state or local government owns the right -of -way.
2. The state or local government has accepted dedication of the roadway.
3. The state or local government constructed and has maintained the road for at
least four years.
4. The public has acquired a public right to use the road by a prescriptive
easement.
DISCUSSION
Subsection 335.141(1)(b), Florida Statutes, defines a public railroad- highway grade crossing
as a location at which a railroad track is crossed at grade by a public road. Section 335.01, Florida
Statutes, states:
335.01. Designation and systemization of public roads --
. (1) All roads which are open and available for use by the public and
dedicated to the public use, according to law or by prescription, are
hereby declared to be, and are established as, public roads.
(2) Public roads shall be divided into four systems:
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PAPER
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(a) The State Highway System; '"t
(b) The State Park Road System; r4
(c) The county road system; and
(d) The city street system.
Since your inquiry involves roads that are not on the State Highway System or the State Park
Road System, it is necessary to explain county road systems and city street systems. Subsection
334.03(8), Florida Statutes, defines "county road systems" to include:
all collector roads in the unincorporated areas of a county and all
=extensions of such collector roads into and through any incorporated
areas, all local roads in the unincorporated areas, and all urban minor
arterial roads not in the State Highway System.
Subsection 334.03(3), Florida Statutes, defines "city street systems" to include:
all local roads within a municipality, and all collector roads inside that
municipality, which are not in the county road system.
A "public crossing" exists when a road listed in 335.01 crosses a railroad. Subsection
351.03(2), Florida Statutes, states:
Advance railroad waming signs and pavement markings shall be installed
and maintained at public railroad- highway grade crossings in accordance
with the uniform system of traffic control devices by the govemmental
entity having jurisdiction over or maintenance responsibility for the
highway or street.
The phrase "highway or street," as used in Subsection 351.03(2), includes all public roads. See also
§ 316.006, Fla. Stat. (defusing the jurisdiction for traffic control purposes for state, county, and
municipal public roads).
Counties are responsible for the maintenance of county roads. S.gm § 336.02, Florida Statutes.
Likewise, municipalities are responsible for city streets. Art. VIII, § 2, Fla. Const.; Chap. 166,
Fla. Stat.
Pursuant to Section 177.081(2), Florida Statutes, when a plat showing roads, streets, alleys and
easements is approved by the appropriate governing body, the relevant roadways are deemed to be
dedicated for public use. Therefore, it is necessary to review the relevant approved plats before
certain roads (e.g., roads within a subdivision) can be said to be "public roads." If the plat shows
a roadway, alley, street, 'right of way that is to be used by the public and the plat has been approved
by the appopriate local government, they become public roads for which the local government becomes
responsible.
Once a county has accepted a dedicated road, it can not refuse to maintain it. Ecological
Development vs Walton County, 558 So. 2d 1069 (Fla. 1st DCA 1990). It can, however, abandon
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and close the road in accordance with the process set forth in Sections 336.09 through 336. I2, Florida
Statutes.
Therefore roads accepted by a county or city government that cross a railroad create a "public
railroad- highway crossing." ,.
Even if a roadway or street in not dedicated to the county or city, the county or city may
acquire the roadway by constructing and maintaining a road for four years. In that regard, Section
95.361(1), Florida Statutes, provides:
95.361. Roads presumed to be dedicated.- -
(1) When a road, constructed by a county, a municipality, or the
Department of Transportation, has been maintained or repaired
continuously and uninterruptedly for 4 years by the county, municipality,
or the Department of Transportation, jointly or severally, the road shall
be deemed to be dedicated to the public to the extent in width that has
been actually maintained for the prescribed period, whether or not the
road has been formally established as a public highway. The dedication
shall vest all right, title, easement, and appurtenances in and to the road
in:
(a) The county, if it is a county road;
(b) The municipality, if it is a municipal street or road; or
(c) The state, if it is a road in the State Highway System or State
Park road System, whether or not there is a record of a
conveyance, dedication, or appropriation to the public use.
Whether a particular roadway has been maintained or repaired continuously and without interruption
for four years is a question of fact that must be determined on a case by case basis.
A formerly private road and railroad crossing can also become public by prescription. In
Downing v. Bird, 100 So 2d 57 (Fla. 1960), the Supreme Court set forth the test for the establishment
of a public road by prescription, stating that it is necessary to prove that:
(1) The public had the continued and uninterrupted use or enjoyment of the lands
for a roadway for more than twenty years,
(2) The identity of the roadway, and
(3) The use or enjoyment was adverse or under a claim of right.
As to whether a railroad highway crossing is a public crossing if the road is public on one side
of the tracks but private on the other, only a crossing whose intersecting road is public on both sides
is a "public crossing." Jones v. Qrem, 605 So. 2d 1017 (Fla. 5th DCA 1992) (The terminus of
a public road is where the public no longer has the right to use the road.). If the public is not allowed
use the road on either side of the tracks, the crossing is not a "public crossing."
There is no "grandfathering" in of public railroad- highway crossings. When the road crossing
a railroad becomes public it becomes subject to the requirements of Sections 316.171, 335.141 and
351.03, Florida Statutes.
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