99-R-150
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
RESOLUTION UTILIFORM
FOR
UTILITY AGREEMENT
RESOLUTION NO. 99-R-15
FIN. PROD. ID
SECTION #
STATE RD.
COUNTY
DOC NO
FAP #
240811-1-52-01
79210-6504
3281 007 P
442
VOLUSIA
1
240812-1-52-01
79210-6505
WHEREAS, the State of Florida Department of Transportation, hereinafter referred to as the" FDOT', proposes to construct
or reconstruct a transportation facility identified above, hereinafter referred to as the "Project", and
WHEREAS, in order for the FDOT to proceed with the Project, it is necessary for the City of Edgewater, Florida, hereinafter
referred to as the "UAO", to execute and deliver to the FDOT the agreement identified as UTILITY RELOCATION AGREEMENT
(AT UTILITY OWNER'S EXPENSE) , hereinafter referred to as the "Agreement';
NOW, THEREFORE, BE IT RESOLVED BY THE HAD:
That(name) Terry Wadsworth ,(tide) Director of Enviroxtmental_ ieryireR behereby
authorized and directed to execute and deliver the Agreement to the FDOT.
A certified copy of this Resolution be forwarded to the FDOT along with the executed Agreement.
ON MOTION of Cnnnri lra ri Li rhtar , seconded by Cram, loran Hanrrcrnll —the above resolution was introduced
and passed by the UAO on the19 tlday of July . 1999.
Title Rand G. Allman
tl Mayor - City of Edgewater
,
~
"WI
STATE OF FLORlDA DEPARTMENT OF TRANSPORTATION
UTILITY DESIGN BY FDOT CONSULTANT AGREEMENT
(AT UTILITY EXPENSE)
FPI# SECTION # STATE RD. COUNTY DOC NO FAP#
240811-1-52-02 79210-3504 442 VOLUSIA 3 3281 007 P
THIS AGREEMENT, entered into this J I_day of ~v5d:::__, 1999, by and between the STATE OF
FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FDOT", and the CITY
OF EDGEW ATER. FLORIDA, hereinafter referred to as the "VAO";
WITNESSETH:
WHEREAS, the FDOT, is constructing, reconstructing, or otherwise changing a portion of a public road
or publicly owned rail corridor, said project being identified as Financial Proiect J.D. Number 240811-1-52-01 ,
State Road No.: 442 (Indian River Blvd.), hereinafter referred to as the "Project"; and
WHEREAS, the VAO 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 ofthe Facilities, or some combination thereof, hereinafter referred to as "Utility
Work"; and
WHEREAS, the DEPARTMENT and the UTILITY have determined that it would be to the best interest
of the general public and to the economic advantage of both parties to enter into an agreement providing for the
design ofthe Utility Work by the engineer designing the Project for the FDOT, hereinafter referred to as the "FDOT
Consultant", which design of the Utility Work shall hereinafter be referred to as the "Utility Design"; and
WHEREAS, the V AO, pursuant to the terms and conditions hereof, will bear certain costs associated with
the Utility Design;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the
FDOT and the VAO hereby agree as follows:
1. Design of Utility Work
a. FDOT Consultant shall prepare, at VAO's sole cost and expense, final engineering design, plans,
other necessary related design documents, and cost estimate for the Utility Work (hereinafter referred
to as the "Plans Package") more specifically described in FDOT's Supplemental Agreement # Q.
to GAl Consultants-Southeast Inc., 201 E. Pine Street. Suite 200, Orlando, FI 32801 Design
Services Contract.
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b. The Plans Package shall be in the same format as the FDOT's contract documents for the Project.
c. 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 FDOT's Utility Accommodation
Manual and the FDOT's Plans Preparation Manual in effect at the time the Plans Package is
prepared, and the FDOT's contract documents for the Project. If the FDOT's Plans Preparation
Manual is updated and conflicts with the FDOT's 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 FDOT's guidelines on preparation of technical special provisions.
f. FDOT Consultant shall provide a copy of the proposed Plans Package to the DAO, for review at
the following stages: Phase II Documents on December 17, 1999; Phase III Documents on June 16,
2000; and Specifications Review Documents on January 5, 2001. DAO shall review the Plans
Package to see that it complies with the requirements of this Agreement.
g. In the event that the DAO finds any deficiencies in the Plans Package during the reviews performed
pursuant to subparagraph f. above, the DAO will notify the FDOT in writing of the deficiencies
within the time specified in the plans review transmittal.
h. The DAO shall furnish the FDOT such information from the DAO files as requested by the FDOT.
1. The Facilities and the Utility Design will include all utility facilities of the DAO 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.
2. Cost of Design
a. The DAO shall be responsible for all costs of the Utility Design.
b. The DAO agrees that it will, at least thirty (30) days prior to the FDOT issuing the Supplemental
Agreement referred to in Paragraph 1 hereof, furnish the FDOT an advance deposit of
$ 28,000 for the payment of said Utility Design. It is understood that the FDOT's
Consultant shall not begin any Utility Design until the FDOT has received the above payment and
that if such payment is not received on or before September 17, 1999 this Agreement shall be null
and void. The FDOT shall utilize this deposit for the payment of Utility Design. Both parties
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further agree that in the event the final billing pursuant to the terms of subparagraph 2. d. below is
less than the advance deposit, a refund of any excess will be made by the FDOT to the VAO. No
work in excess of the advance deposit shall be done. In the event that it is subsequently determined
that work in addition to that described in the Supplemental Agreement described in Paragraph 1
hereof is necessary in order to properly complete the Utility Design, the VAO shall make an
additional deposit in the amount necessary to issue a subsequent Supplemental Agreement to the
FDOT Consultant for the additional work.
c. The payment of funds under this Agreement will be made (choose one):
*
directly to the FDOT for deposit into the State Transportation Trust Fund.
_ as provided in the attached Memorandum of Agreement between the VAO, the FDOT and
the State of Florida, Department ofInsurance, Division of Treasury. Deposits ofless than
$100,000.00 must be pre-approved by the FDOT Comptroller's Office prior to execution of
this agreement.
d. Upon final payment to the FDOT Consultant, the FDOT intends to have its final and complete
accounting of all costs incurred in connection with the Utility Design within three hundred sixty
(360) days. All project cost records and accounts shall be subject to audit by a representative of the
VAO for a period of three (3) years after final close out of the project. The VAO 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 FDOT to the VAO in accordance with Section 215.422, Florida Statutes.
3. Default
a. In the event that the VAO breaches any provision of this Agreement, then in addition to any other
remedies which are otherwise provided for in this Agreement, the FDOT may exercise one or more
of the following options, provided that at no time shall the FDOT 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 FDOT.
2. Pursue a claim for damages suffered by the FDOT or the public.
3. Suspend or terminate the issuance of further permits to the VAO for the placement of
Facilities on FDOT property if the breach is material and has not been cured within 60 days
from written notice thereof from FDOT.
4. Pursue any other remedies legally available.
5. Perform any work with its own forces or through contractors and seek repayment for the cost
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thereof under Section 337.403(3) of the Florida Statutes.
b. In the event that the FDOT breaches any provision ofthis Agreement, then in addition to any other
remedies which are otherwise provided for in the Agreement, the VAO may exercise one or more
of the following options:
1. Terminate this Agreement if the breach is material and has not been cured within 60 days
from written notice thereof from the VAO.
2. Pursue any other remedies legally available.
c. Termination ofthis 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.
4. Indemnification
Check one of the appropriate boxes D below:
~ For government-owned utilities,
To the extent provided by law, the VAO shall indemnify, defend and hold harmless the FDOT 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 VAO, its agents, employees, or
subcontractors during the performance ofthe Agreement, whether direct or indirect, and whether to
any person or property to which FDOT or said parties may be subject, except that neither the VAO,
its agents, employees or subcontractors 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 FDOT receives a notice of claim for damages that may have been caused by the VAO in
the performance of services required under this Agreement, the FDOT will immediately forward the
claim to the VAO. The VAO and the FDOT will evaluate the claim and report their findings to each
other within fourteen (14) Designing days and will jointly discuss options in defending the claim.
After reviewing the claim, the FDOT will determine whether to require the participation ofthe VAO
in the defense of the claim or to require the VAO to defend the FDOT in such claim as described
in this section. The FDOT's failure to notify the VAO of a claim shall not release the VAO from
any of the requirements of this section. The FDOT and the VAO 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.
D For non-government-owned utilities,
The VAO shall indemnify, defend and hold harmless the FDOT 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 VAO, its agents, employees, or subcontractors during the
performance of the Agreement, whether direct or indirect, and whether to any person or property to
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which FDOT or said parties may be subject, except that neither the VAO, its agents, employees or
subcontractors 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.
The VAO's obligation to indemnify, defend, and pay for the defense or at the FDOT's option, to
participate and associate with the FDOT in the defense and trial of any damage claim or suit and any
related settlement negotiations, shall arise within seven (7) days of receipt by the VAO of the
FDOT's notice of claim for indemnification to the VAO. The notice of claim for indemnification
shall be served by certified mail. The VAO's obligation to defend and indemnify within seven (7)
days of such notice shall not be excused because of the VAO's inability to evaluate liability or
because the VAO evaluates liability and determines the VAO is not liable or determines the FDOT
is solely negligent. Only a final adjudication or judgment finding the FDOT solely negligent shall
excuse performance of this provision by the VAO. The VAO shall pay all costs and fees related to
this obligation and its enforcement by the FDOT. The FDOT's delay in notifying the VAO of a
claim shall not release VAO of the above duty to defend.
5. Force Majeure
Neither the VAO nor the FDOT 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 ofthe 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 cg resumed performance as soon as possible.
6. Miscellaneous
a. Time is of the essence in the performance of all obligations under this Agreement.
b. The FDOT may unilaterally cancel this Agreement for refusal by the VAO 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 VAO in conjunction with this Agreement.
c. This Agreement constitutes the complete and final expression ofthe parties with respect to
the subj ect matter hereof and supersedes all prior agreements, understandings, or negotiations
with respect thereto, except that the parties understand and agree that the FDOT has manuals
and written policies and procedures which may be applicable at the time of the Project and
the relocation of the Facilities.
d. This Agreement shall be governed by the laws of the State of Florida. Any provision hereof
found to be unlawful or unenforceable shall be severable and shall not affect the validity of
the remaining portions hereof.
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e. 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 VAO shall have a continuing obligation to notify
each District of the FDOT 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 VAO: Mr. Kenneth Hooper, P.E., City Manager
City of Edgewater
P.O. Box 100
Edgewater, Florida 32132
If to the FDOT: Ms. J. E. Tuttle, Proiect Manager
FDOT District 5
719 S. Woodland Blvd., MS 4-542
DeLand, Florida 32720-6834
7. Certification
This document is a duplication of an FDOT form maintain in an electronic format and all revision thereto
by the VAO 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 ofthis 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
VAO hereby represents that no change has been made to the text of this document except through the terns
of the Appendix entitled "Changes To Form Document."
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first
wri tten .
UTILITY: CITY OF EDGEWATER, FLORIDA
BY:
(Siqnature)~~,(:)~~
(Typed Name: Terry A. Wadsworth
DATE:
7/\q/~q
(Typed Title: Director of Environmental Service~
Recommend Approval by the District Utility Office
BY, (Siqnature)~&_~ ~
:--
DATE:
I/"/? 7
BY:
FDOT Legal review
(Siqn:tur~~
District Counsel
DATE:
~.."..~~
STATE OF FLORIDA
DEPARTMENT OF TRANSPO~ATION .~
BY, (Siqnature) jf#dI#b~.
(Typed Name: R.H. CORTELYOU l )
(Typed Title: DISTRICT DIRECTOR OF PRODUCTION)
DATE:
6.. ;/ c:c:,
o -// - /' /
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY:
DATE:
(Typed Name:
(Typed Title:
)
)
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
UTILITY DESIGN BY FDOT CONSULTANT AGREEMENT
(At Utility Expense)
APPENDIX: "CHANGES TO FORM DOCUMENT"
The following changes are hereby made to the Utility Design By FDOT Consultant Agreement (at Utility Expense)
between the State of Florida Department of Transportation (the"FDOT") and the City of Edgewater, Florida (the
"UAO") dated the ~ dayof~, 1999, for the project identified as Financial ProiectI.D. Number24081 1-1-
52-02 :
A portion of the costs of the Utility Design for this project will be paid for the by the FDOT. Accordingly the
following changes are being made:
1. Subparagraph 2.a. is hereby deleted and the following paragraph is substituted in its place:
"The UAO shall be responsible for a portion of the costs of the Utility Design. The portion of the costs for the Utility
Design for which the UAO shall be responsible shall be equal to the costs of the Utility Design for any non-
reimbursable portions of the Utility Design, plus any credits applicable to any reimbursable portions of the Utility
Design. Credits applicable to the reimbursable portions of the Utility Design shall be determined as follows:
(1) Increase in value credit.
(a) Expired Service Life. If an entirely new Facility is constructed and the old Facility retired, credit
for the normally-expected service life of the old Facility applies.
(b) Upgrading. A percentage of the total cost of the Relocation Work, based on the extent of the
betterment obtained from the new Facilities will be applied.
(2) Salvage Value. The FDOT shall receive fair salvage value credit for any salvage which will become
available to the UAO as a result of the reimbursable portions of Utility Work.
The Utility Design will be reimbursable under this Agreement when the Project is federal aid eligible pursuant to the
provisions of Section 337.403(l)(a), Florida Statutes, when a written agreement incidental to a right-of-way
acquisition process requires the FDOT to compensate the UAO for the costs of any subsequent relocation of the
Facilities, or when the UAO holds a compensable land interest under Florida condemnation law in the existing
location of the Facilities at the time of the Project. In any other circumstances, the Utility Design will be deemed
to be non-reimbursable."
2. All references in the Agreement to the UAO paying for the Utility Design or for costs of the Utility Design are hereby
changed to and shall be deemed to be references to payment of a portion of the costs of the Utility Design as
calculated pursuant to subparagraph 1. of this Addendum.
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