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HomeMy WebLinkAboutVII (G) Discussion/ Action re: Joint Participant Agreement with FDOT re Maguire Road Bridge Agenda 6-15-99 • Item VII G :y e 0 0It 000 JAMES W. SHIRA,P.E. CITY ENGINEER/UTILITIES DIRECTOR 150 N.LAKESHORE DRIVE•OCOEE,FLORIDA 34761 PHONE(407)656-2322 EXT. 142•FAX(407)656-7835 MEMORANDUM DATE: June 15, 1999 The Honorable Mayor and Board of City Commissioners FROM: James W. Shim, P.E. City Engineer/Utilities I ector SUBJECT: Joint Participation Agreement- Ococc/FDOT Attached for your review and approval is a proposed Joint Participation Agreement (JPA) between the City of Ocoee and the Florida Department offransportation. The purpose of this JPA is to establish the parameters under which the City will be reimbursed by FDOT for some of the costs of the new Maguire Road bridge over the Turnpike. The JPA establishes that FDOT will reimburse the City for up to one million dollars of costs for the design and construction of the bridge. The City Attorney has reviewed this agreement, and a memorandum from him is attached. His memorandum explains in more detail, the constraints that FDOT is under with regard to its promise to reimburse Ocoee at a future date. Also attached is a memorandum from Mr. Ken IIooper, with Professional Engineering Consultants, Inc., outlining Mr. Hooper's experience with similar FDOT agreements. All involved agree that FDOT has the ability and intent to reimburse the City as stated, and I recommend that the City Commission authorize the Mayor and City Clerk to execute the attached JOINT PARTICIPATION AGREEMENT BETWEEN STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AND CITY OF OCOEE FOR THE TURNPIKE/ MAGUIRE ROAD BRIDGE. Attachments �LtL va THE PRIDE OF WEST ORANGE FOLEY & LARDNER MEMORANDUM CLIENT-MATTER NUMBER 0203]Z0107 TO: Ellis Shapiro, City Manager James W. Shira, P.E., City Engineer Kenneth Hooper FROM: Paul E. Rosenthal, Esq., City Attorney DATE: June 8, 1999 RE: Maguire Road Bridge: Joint Participation Agreement with DOT Pursuant to your direction I have spoken with Diane LeRoy and David Tassinari with the Turnpike District. Both of them confirmed that the proposed Joint Participation Agreement contains standard language for similar contracts. They have also directed me to Sections 338.223 and 339.135, Florida Statutes, which confirm that the proposed Joint Participation Agreement is consistent with the statutory program for the funding of DOT and Turnpike projects. Based on my discussions, they have revised Section 3E of the Agreement to confirm that financial project ID 243013-54-01 (presumably a project number which includes the Turnpike bridge) will be included in the 2001-2005 tentative work program to be submitted by the DOT to the Florida Legislature in the next legislative session. Assuming that the project is approved by the Florida Legislature, it will become part of the "adopted work program" and thereafter, subject to legislative appropriation and certain limited circumstances under which priorities can he reorganized, would be funded in FY 2004-2005. Both of the individuals with whom I spoke indicated that they are not aware of any situation in which the DOT entered into a similar agreement and did not obtain legislative approval and funding. The risk to the City would be that the Florida Legislature modified the DOT tentative work program to exclude the project covered by the proposed Agreement. In the event there is a legislative approval, there would then appear to be strong statutory protections which would move the proposed project forward each year along with other projects programmed for FY 2004-2005. The only issue thereafter would be the appropriation of legislative funds necessary to fund the adopted work program for that year and the prospect that there might be a reordering of priorities. The Legislature has attempted to provide assurances that the adopted work programs will move forward by the following provisions set forth in Section 339.135(4)(b)4: 006.142557 1 "It is the intent of the Legislature that the first three years of the adopted work program stand as the commitment of the state to undertake transportation projects that local governments may rely on for planning purposes and in the development and amendment of the capital improvements elements of their local government comprehensive plans." The proposed Turnpike bridge project would become part of the three year program in FY 2001-2002. PER/jh Attachment(s) 006.142557.1 -2- PEC PROFESSIONAL ENGINEERING CONSULTANTS, INC. June 10, 1999 OE-277 1-1.0 Mr. James W. Shira, P.E. City Engineer/Utilities Director City of Ocoee 150 North Lakeshore Drive Ocoee, Florida 34761 RE: Joint Participation Agreement (JPA) Dear Mr. Shira: Enclosed is the completed Joint Participation Agreement (JPA) between FDOT (Turnpike District) and the City of Ocoee for an expanded Maguire Road Bridge over a proposed new ten-lane typical section of the Turnpike at Maguire Road. The purpose of the proposed JPA is to provide a cost-sharing mechanism that is favorable to both FDOT and the City of Ocoee. The City desires to widen Maguire Road from Roberson Road to S.R. 50 from a two-lane section to a modern four-lane section. The roadway widening requires the replacement of the existing bridge over the Turnpike. The Turnpike District desires to expand the Turnpike in the vicinity of Maguire Road from a four-lane section to a ten-lane section (which includes acceleration and deceleration lanes). The JPA allows the City and FDOT to jointly fund the new bridge at a cost savings to both entities. The basis of the JPA is the City will pay its share for widening the bridge and the Turnpike District will pay its share for lengthening the bridge. The JPA authorizes the City to plan, design, permit, construct and inspect a new four-lane bridge (Maguire Road) over the Turnpike. The new bridge will be constructed to span the proposed expansion of the Turnpike from a four-lane to a ten-lane section. The Turnpike District will reimburse the City for the actual cost of the design, permitting construction and inspection of the new bridge up to $1.0 million dollars. Consistent with Florida Statutes Section 338 and 339, FDOT/Turnpike JPA's provide for reimbursement in the fiscal year the proposed project would be constructed by the Department. The Maguire bridge is scheduled within the FDOT work-plan for FY2004-2005, thus the City of Ocoee will received reimbursement in 4-5 years. It is also normal for all JPA agreements to contain language as defined in Section 3e (page 5) indicating all agreements are subject to Legislative approval. The Department is subject to annual appropriation by the Legislature for the Department's budget. PEC has assisted numerous cities and counties through the JPA process and has never witnessed the Department's failure to spa I perform as described by an adopted Joint Participation Agreement. According to FDOT p:a,lr;ems Mr. James W. Shira, P.E. June 10, 1999 Page 2 staff members, the Department executes more than 100 JPA's per year with local governments for similar projects. PEC is pleased to have been able to assist the City of Ocoee with obtaining additional state funding through the JPA process and recommends approval of the Joint Participation Agreement. Very truly yours, PROFESSIONAL ENGINEERING CONSULTANTS, INC. Kenneth R ope Principal KRH/bk.001p Florida Department of Transportation IER BUSH 605 Suwannee Street THOMAS r.anRRv.JR. GOVERNOR Tallahassee, Florida 32399-0450 SECRETARY Turnpike District Office of the General Counsel 1211 Governor's Square Boulevard Suite 100 Tallahassee, Florida 32301 (850) 922-4601 C I V E D APR 2 8 1994 April 27, 1999 ' i-. sFrl.°•`;7ct Fursan Munjed Professional Engineering Consultants, Inc. 200 East Robinson Street Suite 1560 -- -- - ; Orlando, Florida 32801 .mil Re: JPA between FDOT and City of Ocoee for the Turnpike/Maguire Road Bridge Dear Mr. Munjed. Enclosed are four originals of the above-referenced agreement for signature by the City of Ocoee. Please have the agreements signed and attested and return all four to me for signature by the Department. When the agreement has been fully executed, we will forward three originals to your office as requested. Sincerely, H ) Diane G. LeRoy Turnpike District General Counsel DGL/mh Enclosures www_dot-state fl.us ®AFCVCLED PAPra JOINT PARTICIPATION AGREEMENT BETWEEN STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AND CITY OF OCOEE FOR THE TURNPIKE/MAGUIRE ROAD BRIDGE ORANGE COUNTY, FLORIDA THIS AGREEMENT, entered into this day of , 1999, by and between the State of Florida Department of Transportation, a state agency of the State of Florida hereinafter called the "DEPARTMENT", and the City of Ocoee, Florida, hereinafter called the "CITY". WITN ES SET H. WHEREAS, the CITY is currently in the process of accomplishing the design of the replacement bridge structure of Maguire Road, over the Turnpike in Orange County, Florida; and WHEREAS, the CITY is designing and constructing this replacement structure to accommodate the City's widening of Maguire Road, a city owned road, from two to four lanes; and WHEREAS, the CITY has funded the replacement structure ("bridge" or "structure") within its Capital Improvement Program; and WHEREAS, if the bridge were to be constructed to span the existing Turnpike typical section, the DEPARTMENT would be responsible to modify or replace the bridge to accommodate the future widening of the Turnpike; and WHEREAS, the DEPARTMENT has no funds committed at this time to replace the bridge at Maguire Road; and WHEREAS, pursuant to section 338.2275, F.S., the DEPARTMENT will be adding auxiliary lanes to the Turnpike in DEPARTMENT fiscal year 2001, from Western Beltway to the East-West Expressway (Financial Project I.D. 243013-3) and the bridge work is being performed in conjunction with the DEPARTMENT'S auxiliary lane project; and WHEREAS, if the bridge were to be replaced by the DEPARTMENT after having been rebuilt by the CITY, it would cost the DEPARTMENT over $2 million to replace the bridge; and WHEREAS, the DEPARTMENT and the CITY are desirous of cooperating to minimize the cost of providing transportation facilities and minimizing disruption to the public through planning for the prospective Turnpike widening in the bridge design and construction being undertaken by the CITY; and WHEREAS, pursuant to section 338.222 (2), Florida Statutes, the DEPARTMENT is authorized to contract with local governmental entities for certain construction activities of any Turnpike project which the Legislature has approved. WHEREAS, it is a condition precedent to the DEPARTMENT's financial commitments hereunder, that the DEPARTMENT Financial Project I.D. 243013-3 (widening) be approved in the adopted work program; NOW, THEREFORE, in consideration of the mutual benefits to be derived from joint participation on the project and for good and valuable consideration acknowledged hereto, the parties agree to the following. 1. The recitations set forth hereinafter are true, accurate, and correct to the best of the parties knowledge. 2 2. The CITY will accomplish the following: a. Design. As part of the CITY construction of the widening of Maguire Road and the replacement of the bridge structure over the Turnpike, the CITY will design its new bridge to be compatible with a ten-lane Turnpike section. The CITY's designer shall be prequalified pursuant to Rule Chapter 14-75, Florida Administrative Code. The bridge structure shall be designed in accordance with the current Florida Department of Transportation Standard Specifications for Road and Bridge Construction, as amended and supplemented, which is hereby incorporated by reference, and the CITY shall ensure that the Department shall be named as additional insured on the bridge structure's prime contractor's general liability policy, and that said contractor shall maintain a payment and performance bond in effect, and that both shall be maintained in effect during and through the construction of the bridge structure. The CITY will submit the design of the new bridge structure to the DEPARTMENT at a frequency acceptable to the parties, for ultimate approval by the DEPARTMENT. b. Environmental Permits. Prior to advertisement of any construction contract to be funded in whole or in part by the DEPARTMENT,the CITY shall acquire all environmental permits in accordance with local, state and federal permit requirements. It shall be the CITY's responsibility to ensure compliance with all environmental permit requirements. c. Utilities. The CITY shall be responsible for causing the relocation of any easements, permit holders or utilities, if any, from the right-of-way needed for the bridge. d. Construction/CEI. The CITY shall use a construction contractor who is prequalified in the appropriate category, pursuant to Rule Chapter 14-22, F.A.C. The CITY agrees to administer the work so that the bridge is constructed in conformity with the plans and specifications, and in accordance with good engineering practices. The CITY shall cause to be performed all Construction Engineering and Inspection (CEI) and management engineering services necessary to assure proper coordination of all activities and all operations involved, in order to 3 achieve a project constructed in accordance with the plans, permits and specifications. The CEI shall be prequalified pursuant to Rule Chapter 14-75, P.A.C. e. Special Permit. The DEPARTMENT hereby grants and conveys to the CITY for the use and benefit of the CITY, its successors, assigns, agents, employees, contractors and subcontractors, a permit over and across the portion of the Turnpike at Maguire Road for the purpose of construction, maintenance and repair of the Maguire Road overpass structure and to allow the CITY, its successors, assigns, agents, employees, contractors and subcontractors to enter upon DEPARTMENT property with such equipment and materials as are necessary to completely construct the Maguire Road overpass structure, and thereafter to repair and maintain the Maguire Road overpass structure. The rights granted by this permit are subject to the terms and conditions of this Agreement and any additional terms and conditions set forth in the Special Permit to be issued hereunder. The CITY acknowledges and agrees that this permit for the construction of the project upon DEPARTMENT property shall not operate to create any property right or right to compensation in the CITY or its successors. The CITY will apply for a DEPARTMENT Special Permit, prior to entering the DEPARTMENT right-of-way to proceed to construction, to allow the CITY access to the DEPARTMENT's right-of-way. 3. The DEPARTMENT will accomplish the following: a. Design. The DEPARTMENT will provide to the CITY an approved typical section for a ten-lane Turnpike through the project limits to be used in the design of the Maguire Road overpass structure. b. Review. The DEPARTMENT will review the designs of the Maguire Road overpass structure as quickly as possible. c. Special Permit. The DEPARTMENT will expediently process the Special Permit for the construction of the overpass structure upon receipt of the permit application. 4 d. Funding. Subject to section e., immediately below, the DEPARTMENT will provide to the CITY the cost for the additional span length required to accommodate a ten- lane Turnpike facility. This cost will be actual costs incurred by the CITY to include design, CEI and construction costs. The DEPARTMENT plans to reimburse the CITY during fiscal year 2004-2005 provided that the CITY has completed construction and the funds are available pursuant to section 3e. below. However, in no instance shall the DEPARTMENT funding exceed one million dollars ($1,000,000). e. Legislative Funding Approval. It is a condition precedent to the DEPARTMENT's funding obligation that the DEPARTMENT obtain legislative approval of the DEPARTMENT's FY 2001-2005 tentative work program which will include Financial Project I.D. 243013-3-54-01 which will be programmed in FY 2004-2005. f. Payment by the DEPARTMENT. Upon completion of the construction and upon notice by the DEPARTMENT that funds are available to reimburse the CITY, the CITY will submit the invoice setting out the CITY's actual costs of the additional span length in accordance with 3d. above accompanied by copies of Engineer certification of substantial completion of construction of the bridge, the DEPARTMENT, upon review and approval of such invoice, will pay the CITY the funding, pursuant to the provisions of section 215.422, Florida Statutes or per the DEPARTMENT's customary procedure. Payment to the CITY for actual costs shall not exceed one million dollars. The CITY invoice shall be in a form and manner acceptable to the DEPARTMENT. g. Record Keeping. For the purposes of pre-audit and post-audit activities, for all expenses which are to be funded, copies of all bills and invoices received by the CITY relating to the bridge project and resulting documents, vouchers, checks, etc., relating to payments made by the CITY for the bridge project shall be maintained in accordance with Sec. 215.422, P.S. The CITY agrees to keep complete records and accounts in accordance with generally accepted accounting principles,to establish sound internal control, and to require all 5 contractors and subcontractors to keep such records and accounts and to record complete and correct entries as to all costs. Records of costs incurred pursuant to the Agreement shall be maintained and made available upon request to the DEPARTMENT at all times during this Agreement and for three(3) years after final payment is made. Copies of these documents and records shall be furnished to the DEPARTMENT upon request. Records of costs incurred includes the CITY's general accounting records and project records, together with supporting documents and records of the CITY and all contractors performing work on the project, and all other records of the CITY and contractors considered necessary by the DEPARTMENT for a proper audit of costs. h. Invoice Processing. Upon receipt from the CITY of invoices, the DEPARTMENT agrees to pay the invoice as provided in Section 215.422 or in accordance with the DEPARTMENT's customary procedures. Upon receipt of an invoice, the DEPARTMENT will have ten (10) days to inspect and approve the goods and services or invoices. The DEPARTMENT will have twenty (20) days to deliver a request for payment (voucher) to the Department of Banking and Finance. The twenty (20) days are measured from the latter of the date the invoice is received or the goods or services are received, inspected and approved. If a payment is not available within 40 days, a separate interest penalty at a rate established pursuant to Section 215.422, Florida Statutes, will be due and payable, in addition to the invoice amount to the CITY. Interest penalties of less than one (1) dollar will not be enforced unless the CITY requests payment. Invoices which have to be returned to the CITY because of CITY preparation errors will result in a delay in the payment. The invoice payment requirements do not start until a properly completed invoice is provided to the DEPARTMENT. 6 A Vendor Ombudsman has been established within the Department of Banking and Finance. The duties of this individual include acting as an advocate for vendors who may be experiencing problems in obtaining timely payments(s) from a state agency. The Vendor Ombudsman may be contacted at (850) 488-2924 or by calling the State Comptroller's Hotline, 1- 800-848-3792. i. Section 287.1332(a), F.S.. The CITY shall include the following restriction in the letting of the bridge construction contract: A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. j. Maintenance. Upon completion of the structure, the bridge shall be solely owned and maintained by the CITY. 4. The CITY agrees that should the project for any reason be delayed or canceled, the DEPARTMENT shall not be liable to the CITY for any expenses incurred by the CITY concerning this Agreement. In the event that CITY construction has not commenced by June I, 2001, this Agreement may be canceled by either party. 5. The CITY warrants that it has not employed or obtained any company or person, other than bona fide employees or consultants of the CITY, to solicit or secure this agreement and it has not paid or agreed to pay any company, corporation, individual or firm, other than a bona fide 7 employee or consultant employed by the CITY. For the breach or violation of this provision, the DEPARTMENT shall have the right to terminate the agreement without liability at its discretion and to withhold additional payments or funds budgeted and allocated for this Project. 6. This Agreement or any interest herein, shall not be assigned, transferred, or otherwise encumbered under any circumstances by the CITY without prior written consent of the DEPARTMENT. 7. The CITY, to the extent allowed by the laws of Florida, agrees to indemnify, defend and save and hold harmless the DEPARTMENT from all claims, demands, liabilities, and suits of any nature whatsoever arising out of any act, neglect, or omission by the CITY, its agents or employees, in its performance of this Agreement, or because of, or due to the breach of this agreement by the CITY, its agents or employees. 8. The CITY shall require the bridge contractor to indemnify the DEPARTMENT in the language of Exhibit "A" which is attached hereto and made a part of this Agreement. Such requirement shall be made a part of the project specifications or bid documents. The CITY shall provide a copy of the executed contractor's contract to the DEPARTMENT. 9. In the event this contract is in excess of twenty five thousand dollars ($25,000) or has a term for a period of more than one year, the provisions of section 339.135(6), Florida Statutes are hereby incorporated: The department, during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The department shall require a statement from the comptroller of the department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for 8 periods exceeding 1 year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years; and this paragraph shall be incorporated verbatim in all contracts of the department which are for an amount in excess of$25,000 and which have a term for a period of more than I year. In accordance with Florida law, the State of Florida's performance and obligation to pay under this col is contingent upon an annual appropriation by the legislature. 10. Notices/Service of Process. All notices, certificates or other communications shall be sufficient given and shall be deemed given when hand-delivered, mailed by registered or certified mail, postage prepaid, receipt required, or overnight courier service with guaranteed next day delivery to the parties at the following addresses: DEPARTMENT: " Turnpike District Secretary Department of Transportation M.S. 98 605 Suwannee Street Tallahassee, Florida 32399-0450 With a copy to: Turnpike Director of Operations Department of Transportation Post Office Box 9828 Ft. Lauderdale, Florida 33310-9828 With a copy to: Comptroller Department of Transportation M.S. 42 605 Suwannee Street Tallahassee, Florida 32399-0450 CITY OF OCOEE: City Manager City of Ocoee 150 N. Lakeshore Drive Ocoee, Florida 34761-2258 9 With a copy to: City Engineer City of Ocoee 150 N. Lakeshore Drive Ocoee, Florida 34761-2258 Either of the above parties may, by notice in writing given to the other, designate any further or different addresses to which subsequent notices, certificates or other designation of further or different addresses shall be deemed given on the date such notice is delivered by hand by national receipted overnight delivery service (e.g. Federal Express) or three days after the date mailed in the United States Mail, return receipt requested. For purposes of service of process, the parties agree that service on the officer noted, and at the address provided for above marked with an *, or on such replacement person situated in the State of Florida as any of the foregoing may designate in writing from time to time, shall be deemed binding on such party; provided, however, that if the DEPARTMENT cannot effectuate service of process on such person at the address stated above or such other address hereafter designated by such party, service of process on the then most recently designated Registered Agent of such entity in the State of Florida or, if no Registered Agent was previously designated or is then designated, the Florida Secretary of State shall be deemed good service on the party on whom service was attempted to be served. These provisions shall be in addition to any service of process methods provided for by law. 11. Jurisdiction and Venue. The parties to this Agreement expressly consent to the jurisdiction of and agree to suit in any court of general jurisdiction in the State, whether state or local, and further agree that venue shall lie in either Leon County, Florida or Orange County, Florida. 12. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof 10 13. Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 14. Public Records Law. The parties shall allow public access to all documents, papers, letters or other materials made or received in conjunction with this Agreement and the performance thereof, in accordance with the provisions of Chapter 119, Florida Statutes. 15. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 16. Integration. This Agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties, whether oral or written, and there are no other agreements between the parties in connection with the subject matter hereof No waiver, amendment, or modification of these terms hereof will be valid unless in writing, signed by all parties and only to the extent therein set forth. 17. Modifications Amendments or Alterations. No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 18. Recordation. This Agreement may be recorded in the Official Records of Orange County. 11 IN WITNESS WHEREOF, the CITY has caused this Joint Participation Agreement to be executed on its behalf the day of _, 1999, by its Mayor, authorized to enter and execute same by Resolution No. of the Commission on the day of , 1999, and the DEPARTMENT has caused this Joint Participation Agreement to be executed on its behalf on the day of , 1999. ATTEST: CITY OF OCOEE, FLORIDA BY ITS CITY COMMISSION BY: BY: City Clerk Mayor DATED: APPROVED AS TO FORM AND LEGAL SUFFICIENCY: BY: City Attorney STATE OF FLORIDA DEPARTMENT ATTEST: OF TRANSPORTATION BY: BY: Executive Secretary District Secretary ******************************************************************************** FOR DEPARTMENT USE ONLY Fiscal Approval Comptroller Approval // Legal Approval 12 EXHIBIT "A" INDEMNIFICATION/HOLD HARMLESS CLAUSE: In addition to the Indemnification of the City of Ocoee as specified in the contract documents, the Contractor shall indemnify, defend, and hold harmless, the State of Florida Department of Transportation ("Department"), and all of its officers, agents and employees in the amount of the construction contract price, from all suits, actions, loss, damage, cost, charge, expense or claims arising out of any acts, action, neglect or omission by the Contractor during the performance of the construction contract, whether direct of indirect, and whether to any person or property to which the department or said parties may be subject, except that neither the Contractor nor any of its subcontractors will be liable for damages arising out of the injury or damage to persons or property directly caused or resulting from the sole negligence of the Department or any of its officers, agents or employees. This indemnification shall be capped and limited to the amount of this construction contract. The Contractor's obligation to indemnify, defend, and pay for the defense or at the Department's option, to participate and associate with the Department in the defense and trial of any damage claim or suit and any related settlement negotiations, shall arise within 7 days of receipt by the Contractor of the Department's notice of claim for indemnification to the Contractor. The notice of claim for indemnification shall be served by certified mail. The Contractor's obligation to defend and indemnify within 7 days of receipt of such notice shall not be excused because of the Contractor's inability to evaluate liability or because the Contractor evaluates liability and determines the Contractor is not liable or determines the Department is solely negligent. Only a final adjudication of judgment finding the Department solely negligent shall excuse performance of this provision by the Contractor. If ajudgment finding the Department solely negligent is appealed and the finding of sole negligence is reversed the Contractor will be obligated to indemnify the Department for the cost of the appeal(s). The Contractor shall pay all costs and fees related to this obligation and its enforcement by the Department. 13