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07-19 RESOLUTION NO. 07-19 A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA, APPROVING THE EXECUTION OF A UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT WITH THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION REGARDING RELOCATION OF NATURAL GAS MAINS FOR THE IMPROVEMENT PROJECT FOR STATE ROAD SR688 (ULMERTON ROAD) FROM EAST OF 119 TO WEST OF SEMINOLE BYPASS CANAL; 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 119 to West of Seminole Bypass Canal including roadway, sidewalk, other improvements and utilities to include those existing Clearwater Gas System facilities which conflict with the design; and ' WHEREAS, under the Utility Work By Highway Contractor Agreement, the FDOT's general contractor will perform the relocation of existing natural gas mains; and WHEREAS, having FDOT's general contractor relocate the natural gas mains allows for the work to be done in a timely manner and releases Clearwater Gas System from penalty payments; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The City Council hereby accepts and approves the 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 257155-1-56-03, a copy of which is attached as Exhibit A. Section 2. The City Council hereby authorizes the Mayor and City Manager to sign the Utility Work By Highway Contractor Agreement described in this resolution and associated documents. Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 2nd day of August , 2007. :1---/ ~ 'Ffa.f1k V. Hibbard I Mayor Laura Lipowski Assistant City Attorney Resolution No. 07-19 MEMORANDUM OF AGREEMENT THIS AGREEMENT, made and entered into this , day of ,2007, 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 (Clearwater Gas System) hereinafter referred to as the "Participant". WITNESSETH WHEREAS, "FOOT" is currently constructing the following project: Financial Project Number: 257155-1-56-03 County: Pinellas hereinafter referred to as the "Project". NOTE: ONLY THE NEXT TWO PARAGRAPHS. MAY BE MODIFIED AS APPROPRIATE WITHOUT PRIOR APPROVAL OF FOOTS COMPTROLLER. WHEREAS, FOOT 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 FOOT 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 FOOT. 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 $271,500 (Two Hundred One Thousand and 500 Dollars) will be made by the Participant into an interest bearing escrow account established by the FOOT 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 FOOT upon receipt of this Memorandum of Agreement. Such account will be an asset of FOOT. 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. EXHIBIT "A" 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 FDOT's 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 PARTICIPANT NAME & TITLE PARTICIPANT ADDRESS FEDERAL EMPLOYER 1.D. NUMBER STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10/04 Financial Project 10: 257155-1-56-03 Federal Project 10: County: Pinellas State Road No.: 688 District Document No: Utility Agency/Owner (UAO): Clearwater Gas System, Inc. THIS AGREEMENT, entered into this day of , year of , by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FOOT", and Clearwater Gas System, Inc., hereinafter referred to as the "UAO"; WITNESSETH: WHEREAS, the FOOT, is constructing, reconstructing, or otherwise changing a portion of a public road or publicly owned rail corridor, said project being identified as SR 688 (Ulmerton Road) East of 119 to W of Seminole Bvpass Canal, State Road No.: 688, hereinafter referred to as the "Project"; and WHEREAS, the UAO owns or desires to install certain utility facilities which are located within the limits of the Project 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 service 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 combination thereof, hereinafter referred to as "Utility Work"; and WHEREAS, the FOOT and the UAO desire to enter into a joint agreement pursuant to Section 337.403(1 )(b), Florida Statutes for the Utility Work to be accomplished by the FOOT's contractor as part of the construction of the Project; and WHEREAS, the UAO, pursuant to the terms and conditions hereof, will bear certain costs associated with 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. Design of Utility Work a. UAO shall prepare, at UAO's sole cost and expense, a final engineering design, plans, technical special provisions, a cost estimate, and a contingency Utility Work Schedule (said contingency schedule to be used in the case of a bid rejection) for the Utility Work (hereinafter referred to as the "Plans Package") on or before June, year of 2007. b. The Plans Package shall be in the same format as the FOOT's contract documents for the Project and shall be suitable for reproduction. c. Unless otherwise specifically 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 control 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 contract documents 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 Page 1 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10104 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. f. UAO shall provide a copy of the proposed Plans Package to the FOOT, and to such other right of way users as designated by the FOOT, for review at the following stages: Post III Desiqn'prior to Phase IV Desion submittal. 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 production 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 Package 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 notice. The FOOT's 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 such information from the FOOT's files as requested by the UAO; however, the UAO shall at all times be and remain solely responsible for proper preparation of the Plans Package and for verifying all information necessary to properly prepare the Plans Package, including survey information as to the location (both vertical 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 utility facilities of the UAO which are located within the limits of the Project, except as generally summarized as follows: N/A. These exceptions 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 commences to be qualified for relocation at the FOOT's expense, but not previously identified as such, the UAO shall file a claim with the FOOT for recovery of the cost of relocation thereof. The filing of the claim shall not necessarily entitle the UAO to payment, and resolution of the claim shall be based on a determ ination of fault for the error. The discovery 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 conflicts that cannot be resolved through cooperation shall be resolved in the manner determined by the FOOT. I. Upon completion of the Utility Work, the Facilities shall be deemed to be located on the public road or publicly owned rail corridor under and pursuant to the Utility Permit: To be submitted at a later date, (Note: It is the intent of this line to aI/ow 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 Project. b. The FOOT shall procure a contract for construction of the Project in accordance with the FOOT's requirements. c. If the portion of the bid of the contractor 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 1Q days from the date that the UAO is notified Page 2 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10104 of the bid amount. Unless this election is made, the Utility Work 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 conditions 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 Package. 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. 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 procedur,es. 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 UAO shall fully cooperate 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 fo~ coordinating and cooperating with the FOOT's engineer. In so doing, the UAO shall make such adjustments and changes in the Plans Package as the FOOT's engineer shall determine are necessary for the prosecution of the Project. I. The UAO shall not make any changes to the Plans Package after the date on which the FOOT's contract documents are mailed to Tallahassee for advertisement of the Project unless those changes fall within the categories of changes which are allowed by supplemental agreement to the FOOT's contract pursuant to Section 337.11, Florida Statutes. All changes, regardless of the nature of the change or the timing of the change, shall be subject 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 costs associated with any adjustments or changes 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 increase in the cost of performing the Utility Work, unless the adjustments or changes are necessitated by an error or omission of the FOOT.. The UAO shall not be responsible for the cost of delays caused by such adjustments or changes unless they are attributable to the UAO pursuant to Subparagraph 4.a. b. The initial estimate of the cost of the Utility Work is $277.150.00. At such time as the FOOT prepares its official estimate, the FOOT shall notify the UAO of the amount of the official estimate for the Utility Work. Upon being notified of the official estimate, the UAO shall have five (5) working days within which to accept the official estimate for purposes of making deposits and for determining any possible contribution on the part of the FOOT to the cost of the Utility Work, or to elect to have the Utility Work removed from the FOOT's contract and performed separately pursuant to the terms and conditions set forth in Subparagraph 2. d. hereof. c. At least fourteen (.11.) calendar days prior to the date on which the FOOT advertises the Project for bids, the UAO will pay to the FOOT an amount equal to the FOOT's official estimate; plus Q% for administrative costs of field work, tabulation of quantities, Final Estimate processing and Project accounting (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 Page 3 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10/04 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): D directly to the FOOT for deposit into the State Transportation Trust Fund. r8J as provided in the attached Memorandum of Agreement between UAO, FOOT and the State of Florida, Department of Financial Services, Division of Treasury. Deposits of less than $100,000.00 must be pre-approved by the Department of Financial Services and FOOT Comptroller's Office prior to execution of this agreement. e. If the portion of the contractor's bid selected by the FOOT for performance of the Utility Work exceeds the amount of the deposit made pursuant to Subparagraph c. above, then subject to and in accordance with the limitations and conditions established by Subparagraph 2. c. hereof regarding FOOT participation in the cost of the Utility Work and the UAO's election to remove the Utility Work from the Project, the UAO shall, within fourteen (14) calendar days from notification from the FOOT or prior to posting of the accepted 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 allowances and contingency is in excess 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 project costs on final accounting as provided herein below. In the event that the UAO is obligated under this Subparagraph 3.e. to pay an additional amount and the additional amount that the UAO is obligated to pay does not exceed the Contingency Fund already on deposit, the UAO shall have sixty (60) calendar days from notification from the FOOT to pay the additional amount, regardless of when the accepted bid is posted. f. If the accepted bid amount plus allowances and contingency is less than the advance deposit amount, the FOOT will refund the amount that the advance deposit exceeds the bid amount, plus allowances and contingency if such refund is requested by the UAO in writing and approved by the Comptroller of the FOOT or his designee. g. Should contract modifications occur that increase the UAO's share of total project costs, the UAO will be notified by the FOOT accordingly. The UAO agrees to provide, in advarice of the additional work being performed, adequate funds to ensure that cash on deposit with the FOOT is sufficient to fully fund its share of the project costs. The FOOT shall notify the UAO as soon as it becomes apparent the actual costs 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 accounting . 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 Contingency Fund may be used for increases in the cost of the Utility Work which occur because of quantity overruns or because of adjustments or changes in the Utility Work made pursuant to Subparagraph 2. h. Prior to using any of the Contingency Fund, the FOOT will obtain the written concurrence of the person delegated that responsibility by written notice from the UAO. The delegatee shall respond immediately to all requests for written concurrence. If the delegatee refuses to provide written concurrence promptly and the FOOT determines that the work is necessary, the FOOT may proceed to perform the work and recover the cost thereof pursuant to the provisions of Section 337.403(3), Florida Statutes. In the event that the Contingency Fund is depleted, the UAO shall, within fourteen (14) calendar days from notification from the FOOT, pay to the FOOT an additional 10% of the total obligation of the UAO for the cost of the Utility Work established under Subparagraph 3. e. for future use as the Contingency Fund. I. Upon final payment to the Contractor, the FOOT intends to have its final and complete accounting of all costs incurred in connection with the work performed hereunder within three hundred sixty (360) days. All project cost records and accounts shall be subject to audit by a representative of the UAO Page 4 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10/04 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 accounting 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 accordance with Section 215.422, Florida Statutes. 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 Section 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. c. In the event the FOOT's contractor 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 directly between the UAO and the FOOT's contractor shall be in writing, shall be subject to written FOOT concurrence 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 claims relating 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 shall be placed out of service unless specifically identified as such in the Plans. The following terms and conditions shall apply to Facilities placed Out-of-Service: a. The UAO acknowledges its present and continuing ownership of and responsibility for out of service Facilities. b. The FOOT agrees to allow the UAO to leave the Facilities within the right of way subject to the continuing satisfactory performance of the conditions of this Agreement by the UAO. In the event of a breach of this Agreement by the UAO, the Facilities shall be removed upon demand from the FOOT in accordance with the provisions of Subparagraph e. below. c. The UAO shall take such steps to secure the Facilities and otherwise make the Facilities safe in accordance with any and all applicable local, state or federal laws and regulations and in accordance 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 records 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 Page 5 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10104 determines that use of the right of way is needed for other active utilities that cannot be otherwise accommodated 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 object or make any claim of any nature whatsoever with regard thereto. Removal shall be completed within the time specified 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 Sections 337.403 and 337.404, Florida Statutes. f. Except as otherwise provided in Subparagraph e. above, the UAO agrees that the Facilities shall forever remain the legal and financial responsibility of the UAO. The UAO shall reimburse the FOOT for any and all costs of any nature whatsoever resulting from the presence of the Facilities within the right of way. Said costs shall include, but shall not be limited to, charges or expenses which may result from the future need to remove the Facilities or from the presence of any hazardous substance or material in or discharging 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 responsibility of the UAO. 6. 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 sixty (60) days from written notice thereof from FOOT. (2) Pursue a claim for damages suffered by the FOOT. (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. (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 contractors and seek repayment for the cost thereof under Section 337.403(3), Florida Statutes. b. In the event that the FOOT breaches any provision of this Agreement, then in addition to any other remedies which are otherwise provided for in the Agreement, the UAO may exercise one or more of the following options: (1) Terminate this Agreement if the breach is material and has not been cured within sixty (60) days from written notice thereof from the UAO. (2) If the breach is a failure to pay an invoice for Utility Work which is reimbursable under this Agreement, pursue any statutory remedies that the UAO may have for failure to pay invoices. Page 6 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10104 (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 subject matter hereof. 7. 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. 8. 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 FOOT or any of its officers, agents, or employees during the performance of this Agreement. When the FOOT receives a notice of claim for damages that may have been caused by the UAO in the performance of services required under this Agreement, the FOOT will immediately forward the claim to the UAO. The UAO and the FOOT will evaluate the claim and report their findings to each other within fourteen (14) working days and will jointly discuss options in defending the claim. After reviewing the claim, the FOOT will determine whether to require the participation of the UAO in the defense of the claim or to require the UAO to defend the FOOT in such claim as described in this section. The FOOT's failure to notify the UAO of a claim shall not release the UAO from any of the requirements of this section. The FOOT and the UAO will pay their own costs for the evaluation, settlement negotiations, and trial, if any. However, if only one party participates in the defense of the claim at trial, that party is responsible for all costs. FOR NON-GOVERNMENT-OWNED UTILITIES, The UAO shall indemnify, defend, and hold harmless the FOOT and all of its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any acts, action, error, neglect, or omission by the UAO, its agents, employees, or contractors during the performance of the Agreement, whether direct or indirect, and whether to any person or property to which FOOT or said parties may be subject, except that neither the UAO, its agents, em ployees, 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 Page 7 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10104 UAO is not liable or determines the FOOT is solely negligent. Only a final adjudication of 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. 9. Miscellaneous a. Time is of essence in the performance of all obligations under this Agreement. b. The Facilities shall at all times remain the property of and be properly protected and maintained by the UAO in accordance with the current Utility Accommodation Manual in effect at the time the Plans Package is prepared and the current 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 contractor has that obligation as part of the Utility Work pursuant to the FOOT's specifications. c. 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. d. 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 may be applicable at the time of the Project 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 unenforceable shall be severable and shall not affect 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 received by the end of five business days from the proper sending thereof unless proof of prior actual receipt is provided. The UAO shall have a continuing obligation to notify each District of the FOOT of the appropriate persons for notices to be sent pursuant to this Agreement. Unless otherwise notified in writing, notices shall be sent to the following addresses: If to the UAO: Bruce H. Griffin - 727-562-4900x7423 Clearwater Gas System 400 S. Myrtle Avenue Clearwater, Florida 33755 If to the FOOT: Mr. John Kubler 11201 N. McKinley Drive - 7- 820 Tampa, FL 33612 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 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. Page 8 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) Form No. 710-010-22 UTILITIES 10/04 You MUST signify by selecting or checking which of the following applies: o No changes have been made to this Form Document and no Appendix entitled "Changes to Form Document" is attached. [8l No changes have been made to this Form Document, but changes are included on the attached Appendix entitled "Changes to Form Document." IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written. UTILITY: Clearwater Gas System, Inc. BY:(Siqnature) DATE: (Typed Name: See Appendix) (Typed Title: Recommend Approval by the District Utility Office BY: (Si!:mature) DATE: FDOT Legal review BY: (Sianature) DATE: District Counsel STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY: (Siqnature) DATE: (Typed Name: Scott W. Collister P.E..) (Typed Title: Director of Transportation Development) FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: _) (Typed Title: _) Page 9 of 9 APPENDIX State of Florida Department of Transportation UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT CHANGES TO FORMS DOCUMENT FPID: 257155-1-56-03 1. Page 9 of9, following "IN WITNESS WHEREOF...year first within." Add the following signature blocks following the "Utility...(Typed Title)" blank: Countersigned: City of Clearwater, Florida By: Frank V. Hibbard Mayor William B. Horne, II City Manager Attest: ura Lipowski Assistant City Attorney Cynthia E. Goudeau City Clerk . -...N, ;~.'" ..,~..~t " , rJ.. '-,......~,~>. =:\J:.A '{l.~..~ ~l , ~";~:~--,~} i .c,'_ ,,:t:.;;\!,~U .;;"\' " GO, . .....,. "'..,J~ ~).'./:4J.~~-"~'r:"iL~! r i __~'1:."';:",.~_,.-~~ ;~ I' I. ~~---<f ~;{" ,..''::_r~ \.~; "'~<> d~JU ..!. i1 -'~ ) ~' /:.. ~':I ~..;. ....ll~~- '_'-*.....:.i "~.1, I 'j # -t,il I .t.:. . , ,-1 ~ '.' "c ~:~ , " 4j1' . \.. ;1 :\ to '. 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