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2000-R-01I STATE OF FIARIDA DEPARMEN I OF TRANSFORI AI ION RESOLUTION FORM UTILITIES UTILITY AGREEMENT RF.SOT.IITTON NO. 9nnn-R-O) FIN. PROD. ID SECTION # STATE RD. COUNTY DOC NO FAP # 240811-1-56-01 1 79210-6504 442 VOLUSIA 2 3281 007 P 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 WORK BY HIGHWAY CONTRACTOR (AT UTILITY EXPENSE), hereinafter referred to as the "Agreement"; NOW, THEREFORE, BE IT RESOLVED BY THE UAO: That(name) Kenneth R. Hooper ,(title) City Manager be hereby 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 Councilman Brown, seconded by Councilman Vincen2fhe above resolution was introduced and passed by the UAO on the z.a day of Tan„ai-,. ,90011- -. TrOe. City Manager RECEI— of zoEDD 9 MEMORANDUM OF AGREEMENT THIS AGREEMENT, made and entered into this , day o-Oy and between the State of Florida, Departrr=t of Transportation, hereinafter referred to as "DEPAR NT" an e S[ate of Florida, Department of Insurance, Division of Treasury, hereinafter referred to as "TREASURY" and the City of Edgewater, hereinafter referred to as the "UTILITY". WITNESSETH WHEREAS, "DEPARTMENT" is currently constructing the following project: Financial Project Identification Number: 240811-1-56-01 State Project No: 79210-6504 F.A.P. No.: N.A. W.P.I. No.: 5119191 County: Volusia hereinafter referred to as the "Project". WHEREAS, the DEPARTMENT and the UTILITY entered into a Joint Participation Agreement dated ZML wherein the DEPARTMENT agreed to perform certain work on behalf ofthe UTILITY in conjunction with the Projec . WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in the best interest of the DEPARTMENT and the UTILITY to establish an interest bearing escrow account to provide funds for work performed on the Project on behalf of the UTILITY by the DEPARTMENT. 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 $750,000.00 (Seven Hundred Fifty Thousand Dollars and no cents) will be made by the UTILITY into an interestbearing escrow account establishedby the DEPARTMENT for the purposes ofthe project. Said escrow accountwil] be opened with the Department oflnsurance, Division ofTreasury, Bureau ofCollateral Securities on behalf ofthe DEPARTMENT upon receipt ofthis Memorandum of Agreement Such account will bean assetofthe DEPARTMENT. 2. Other deposits will be made only by the UTILITY as necessary to cover the cost of additional work prior to the execution of any Supplemental Agreements. 3. All deposits shall be made payable to the Department of Insurance. Revenue Processine and mailed to the DEPARTMENTS Office of Comptroller for appropriate processing at the following address: Florida Department of Transportation Office of Comptroller 3717 Apalachee Parkway, Suite E Mail Station 24 Tallahassee, Florida 32311 ATTN.: JPA Coordinator A copy of the Agreement shall accompany the deposits. ..�r..-.�.��..."..��..ro.... 1 of 2 4. The DEPARTMENTS Comptroller and/orhis designees shall be the sole signatories on the escrow account with the Department of Insurance 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 JPA. 6. The Treasurer agrees to provide written confumation of receipt of fonds to the DEPARTMENT. 7. The Treasurer's Office further agrees to provide periodic reports to the DEPARTMENT. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by their duly authorized officers, and their officials seals hereto affixed, the day and year first written. UTILITY: CITY OF EDGEWATER 7 BY: Kennet o er (Title: City Manager ) ADDRESS: Mr. Kenneth Hopper, P.E., City Manager City of Edgewater P.O. Box 100 Edgewater, FL 32132 UTILITY'S FEDERAL TAX I.D.# 59-6000314 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION COMPTROLLER BY: STATE OF FLORIDA DEPARTMENT OF INSURANCE, DrVIIqSInnON OF TREASURY BY: Tu--4 C.t.IJLR.+ (Title: F-F-IA IL 1 ATTEST: (Title: 2 of 2 IECEI�VEDD tb utuu 6M D19MICT OT UTUTIES RECEIVEDD RECEIVED FEB 7 2000 FEB 21 2000 6S1 DWMICT 6M D1UM= DC7 UTKXnES DDT UTKxnns STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION W, 710U'O 22 UTILITY WORK BY HIGHWAY CONTRACTOR RILRIES (AT UTILITY EXPENSE) Financial Project ID: 240811-1-56-01 Federal Project ID: 3281 007 P Work Program Item No. (old): 5119191 County/Section No: VOLUSIA (79) State Job No. (old): 79210.6504 District Document No: 2 THIS AGREEMENT, entered into thisid day of year of:S��, by and between the STATE OF FLORIDA DEPARTMENT OF TRANS ORTAT N, hereinafter referred to as the "FDOT", and the CITY OF EDGEWATER, FLORIDA , hereinafter referred to as the "UAO"; 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 Project Identification Number 240811-52-01 , State Road No.: 442 (Indian River Blvd.), 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 FDOT and the UAO desire to enter into a joint agreement pursuant to Section 337.403(1)(b) of the Florida Statutes for the Utility Work to be accomplished by the FDOT'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 FDOT and the UAO hereby agree as follows: 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 Pagel of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710.010.22 UTILITY WORK BY HIGHWAY CONTRACTOR Hones ObES (AT UTILITY EXPENSE) relocation schedule (said contingency schedule to be used in the case of a bid rejection) forthe Utility Work (hereinafter referred to as the "Plans Package') on or before March 15, year of 2001. b. The Plans Package shall be in the same format as the FDOT'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 FDOT'S the 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 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 FDOT's guidelines on preparation of technical special provisions and shall not duplicate or change the general contracting provisionsof the FDOT's Standard Specifications for Road and Bridge Construction and any Supplemental Specifications, Special Provisions, or Developmental Specifications of the FDOT for the Project. f. UAO shall provide a copy of the proposed Plans Package to the FDOT, and to such other right of way users as designated by the FDOT, for review at the following stages: Phase II Documents on December 17 1999; Phase III Documents on June 16, 1999 and Specifications Review Documents on January 5 2001. Prior to submission of the proposed Plans Package for review at these stages, the UAO shall send the FDOT a work progress schedule explaining how the UAD will meet the FDOT'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 FDOT finds any deficiencies in the Plans Package during the reviews performed pursuantto subparagraph f. above, the FDOT will notifythe 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 FDOT's review and approval of the documents shall not relieve the UAO from responsibility for subsequently discovered errors or omissions. h. The FDOT shall furnish the UAO such information from the FDOT's files as Page 2 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION F-N. 710.010-22 UTILUTILITY WORK BY HIGHWAY CONTRACTOR T ES 0 (AT UTILITY EXPENSE) 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 bythe FDOT shall not relieve the UAO ofthis obligation nor transfer any of that responsibility to the FDOT. 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: These exceptions shall be handled by separate arrangement. If anyfacilities of the UAO located within the project limits are discovered afterwork on the project commences to be qualified forrelocation atthe FDOT'S expense, but not previously identified as such, the UAD shall file a claim with the FDOT 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 determination of fault for the error. The discovery of facilities not previously identified as being qualified for relocation at the FDOT'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 FDOT. 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: (Note: It is the intent of this line to allow either attachment of or separate to the permit). 2. Performance of Utility Work The FDOT shall incorporate the Plans Package into its contract for construction of the Project. b. The FDOT shall procure a contract for construction of the Project in accordance with the FDOT's requirements. C. If the portion of the bid of the contractor selected by the FDOT which is for performance of the Utility Work exceeds the FDOT'S official estimate for the Utility Work by more than ten percent (10%) and the FDOT does not elect to participate Page 3 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Fam No. 710L10-33 UTILITY WORK BY HIGHWAY CONTRACTOR "�.E DIES (AT UTILITY EXPENSE) in the cost of the Utility Work pursuant to Section 337.403(1)(b) of the Florida Statutes, the UAO may elect to have the Utility Work removed from the FDOT's contract by notifying the FDOT in writing within 5 days from the date that the UAO is notified of the bid amount. Unless this election is made, the Utility Work shall be performed as part of the Project by the FDOT's contractor. d. If the UAO elects to remove the Utility Work from the FDOT's contract in accordance with subparagraph 2. c., the UAO shall perform the Utility Work separately pursuant to the terms and conditions of the FDOT'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 FDOT or the FDOT'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: 1) In -place Density Testing of trench backfill compaction and will furnish the FDOT with daily diary records showing approved quantities and amounts for weekly, monthly, and final estimates in accordance with the format required by FDOT procedures. f. Except for the inspection, testing, monitoring and reporting to be performed by the UAO in accordance with subparagraph 2. e., the FDOT will perform all contract administration for its construction contract. g. The UAO shall fully cooperate with the FDOT and the FDOT's contractor in all matters relating to the performance of the Utility Work. h. The FDOT'S engineer has full authority over the Project and the UAO shall be responsible for coordinating and cooperating with the FDOT'S engineer. In so doing, the UAO shall make such adjustments and changes in the Plans Package as the FDOT'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 FDOT'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 FDOT'S contract pursuant to Section Page 4 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Fwm No.)to 010l2 UTILITIUTILITY WORK BY HIGHWAY CONTRACTOR 02M 25E (AT UTILITY EXPENSE) 337.11 of the 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 FDOT. 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 FDOT'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 FDOT. The LIAO shall not be responsible for the cost of delays caused by such adjustments or changes unless they are attributable to the LIAO pursuant to subparagraph 4.a. b. The initial estimate of the cost of the Utility Work is $750,000.00. At such time as the FDOT prepares its official estimate, the FDOT 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 FDOT to the cost of the Utility Work, or to elect to have the Utility Work removed from the FDOT'S contract and performed separately pursuant to the terms and conditions set forth in subparagraph 2. d. hereof. C. At least thirty ( 30 ) calendar days prior to the date on which the FDOT advertises the Project for bids, the UAO will pay to the FDOT an amount equal to the FDOT'S official estimate; plus N.A. % for mobilization of equipment for the Utility Work, N.A. % for additional maintenance of traffic costs for the Utility Work, and 2 % for administrative costs of fieldwork, tabulation of quantities, Final Estimate processing and Project accounting (said three amounts for mobilization, maintenance of traffic and administrative costs to be hereinafter collectively referred to as the "Allowances'); plus 10% of the official estimate for a contingency fund to be used as hereinafter provided for changes to the Utility Work during the construction of the Project (the "Contingency Fund"). d. Payment of the funds pursuant to this paragraph will be made (choose one): directly to the FDOT for deposit into the State Transportation Trust Fund. as provided in the attached Memorandum of Agreement between UAO, FDOT and the State of Florida, Department of Insurance, Division of Treasury. Deposits of less than $100,000.00 must be pre - approved by the FDOT Comptroller's Office prior to execution of this agreement. Page 5 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710-010.22 UT UTILITY WORK BY HIGHWAY CONTRACTOR "TES ovES (AT UTILITY EXPENSE) e. If the portion of the contractor's bid selected by the FDOT 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 FDOT 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 FDOT or priorto posting of the accepted bid, whichever is earlier, pay an additional amount to the FDOT 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 FDOT 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 FDOT to so notify the LIAO 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 FDOT 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 FDOT will refund the amount that the advance deposit exceeds the bid amount plus allowances and contingency if such refund is requested by the I in writing and approved by the Comptroller of the FDOT 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 FDOT accordingly. The UAO agrees to provide, in advance of the additional work being performed, adequate funds to ensure that cash on deposit with the FDOT is sufficient to fully fund its share of the project costs. The FDOT shall notify the UAO as soon as it becomes apparent the actual costs will overrun the award amount; however, failure of the FDOT 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 FDOT 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 FDOT 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 FDOT determines that the work is necessary, the FDOT may proceed to perform the work and recoverthe cost Page 6 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710max2 UTILITY WORK BY HIGHWAY CONTRACTOR ""FS a (AT UTILITY EXPENSE) thereof pursuant to the provisions of Section 337.403(3) of the Florida Statutes. In the event that the Contingency Fund is depleted, the UAO shall, within fourteen (14) calendar day from notification from the FDOT, pay to the FDOT 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. Upon final payment to the Contractor, the FDOT 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 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 FDOT 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. The FDOT shall have the right to retain out of any payment due the UAO under this Agreement an amount sufficient to satisfy any amount due and owing to the FDOT by the UAO on any other Agreement between the UAO and the FDOT, whether existing now or in the future. 4. Claims Against UAO a. The UAO shall be responsible for all costs incurred as a result of any delay to the FDOT 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 contractor provides a notice of intent to make a claim against the FDOT relating to the Utility Work, the FDOT 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 contractor makes any claim against the FDOT relating to the Utility Work, the FDOT will notify the UAO of the claim and the UAO will cooperate with the FDOT in analyzing and resolving the claim within a reasonable time. Any resolution of any portion of the Page 7 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Fmm No. 710L1022 UTILITY WORK BY HIGHWAY CONTRACTOR UT "IF"s OLES (AT UTILITY EXPENSE) claim directly between the UAO and the FDOT'S contractor shall be in writing, shall be subject to written FDOT concurrence and shall specify the extent to which it resolves the claim against the FDOT. d. The FDOT 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 FDOT to FDOT'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 FDOT 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 FDOT 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 orfederal 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 FDOT or other permitees using or seeking use of the right of way. e. The UAO shall remove the Facilities at the request of the FDOT in the event that the FDOT determines that removal is necessary for MOT use of the right of way or in the event that the FDOT 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 Page 8 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Fm No. nomo-n UTIL UTILITY WORK BY HIGHWAY CONTRACTOR NEs Dues (AT UTILITY EXPENSE) regard thereto. Removal shall be completed within the time specified in the FDOT's notice to remove. In the event that the UAO fails to perform the removal properlywithin the specified time, the FDOT may proceed to perform the removal at the UAO's expense pursuant to the provisions of Sections 337.403 and 337.404 of the Florida Statutes. 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 FDOT 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 FDOT for the FDOT'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 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 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 sixty (60) days from written notice thereof from FDOT. 2. Pursue a claim for damages suffered by the FDOT or the public. 3. If the Utility Work is reimbursable under this Agreement, withhold reimbursement payments until the breach is cured. The right to withhold shall be limited to actual claim payments made by FDOT to third parties. 4. If the Utility Work is reimbursable underthis Agreement, offset any damages suffered by the FDOT 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 FDOT to third parties. 5. Suspend or terminate the issuance of further permits to the UAO for the placement of Facilities on FDOT property if the breach is material and has not been cured within sixty (60) days from written notice thereof from FDOT. Page 9 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Fwm Na. 710-010.22 UTILITY WORK BY HIGHWAY CONTRACTOR UT alias ovss (AT UTILITY EXPENSE) 6. Pursue any other remedies legally available. Perform any work with its own forces or through contractors and seek repayment for the cost thereof under Section 337.403(3) of the Florida Statutes. b. In the event that the FDOT breaches any provision of this Agreement, then in addition to any other remedies which are otherwise provided for in the Agreement, the LIAO may exercise one or more of the following options: 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. 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. Force Majeure Neither the LIAO 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 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. s. Indemnification Check one of the appropriate boxes O below: ❑ For government -owned utilities, To the extent provided by law, the LIAO shall indemnify, defend and hold harmless the FDOT and all of its officers, agents and employees from any claim, loss, Page 10 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710a10-32 UTILITY WORK BY HIGHWAY CONTRACTOR I.I ObES (AT UTILITY EXPENSE) damage, cost, charge or expense arising out of any acts, action, error, neglect or omission by the UAO, its agents, employees, or subcontractors during the performance of the 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 UAO, 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 UAO in the performance of services required under this Agreement, the FDOT will immediately forward the claim to the UAO. The UAO and the FDOT 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 FDOT will determine whether to require the participation of the UAO in the defense of the claim or to require the UAO to defend the FDOT in such claim as described in this section. The FDOT's failure to notify the UAO of a claim shall not release the LIAO from any of the requirements of this section. The FDOT and the UAO will pay their own costs for the evaluation, settlement negotiations, and trial, if any. However, if only one party participates in the defense of the claim at trial, that party is responsible for all costs. ❑ For non -government -owned utilities, The UAO 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 UAO, its agents, employees, or subcontractors during the performance of the 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 UAO, 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 UAO'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 UAO of the FDOT'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 seven (7) days of such notice shall not be excused because of the UAO's inability to evaluate liability or because the UAO evaluates liability and determines the UAO is not liable or determines the FDOT is solely negligent. Only a final adjudication orjudgment Page 11 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Farm No. 710010 z2 UTILITY WORK BY HIGHWAY CONTRACTOR N`NBRIE$ av s (AT UTILITY EXPENSE) finding the FDOT 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 FDOT. The FDOT'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 FDOT'S contractor has that obligation as part of the Utility Work pursuant to the FDOT's specifications. C. The FDOT 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 FDOT 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: Mr. Kenneth Hooper, P.E., City Manager City of Edgewater P.O. Box 100 Edgewater, FL 32132 Page 12 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Poem Nol10-010.03 UTI UTILITY WORK BY HIGHWAY CONTRACTOR OTIE$ ovES (AT UTILITY EXPENSE) If to the FDOT: Mr. Frank O'Dea, P.E., Resident Engineer FDOT Daytona Construction Office 915 S. Clyde Morris Blvd. Daytona Beach, FL 32114 10. Certification This document is a printout of an FDOT 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." IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written. UTILITY: CITY OF EDGEWATER, FLORIDA BY: (Signature1 " / L DATE: (Typed Name: Kenneth R. Hooper ) (Typed Title: City Manager ) Recommend Approval �by the District Utility Office BY: (Signature)���. DATE: ° ° William P. Richards, P.E. Page 13 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form9o. 71"10Q3 UTILITY WORK BY HIGHWAY CONTRACTOR °'IDTEs 035 (AT UTILITY EXPENSE) FDOT Legal review BY: (Signature) 1 DATE: aQ District Counsel STATE OF FLORIDA DEPARTMENT OF TRg SPORTATIO ture I BY: Si naDATE: Z-4---Od (Typed Name: R.H. CORTELYOU ` ) (Typed Title: DISTRICT DIRECTOR OF PRODUCTION I FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: (Typed Name: (Typed Title: _ DATE: Page 14 of 14 m