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HomeMy WebLinkAboutVII(I1) Request To Execute FDOT District Document No.2, Utility Work By Highway Contractor Agreement And District Document No. 3, Utility Work By Highway Contractor Agreement For Relocations On SR 438 Agenda 8-15-2000 Item VII I 1 "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONER - -°Ocoee S.SCOTT VANDERGRIFT CITY OF OCOEE COMMISSIONERS • 150 N.LAKESHORE DRIVE DANNY HOWELL SCOTT ANDERSON OCOEE,FLORIDA34761-2258RUSTYJOHNSON(407)656-2322 NANCY J.PARKER CITY MANAGER ELLIS SHAPIRO MEMORANDUM DATE: July 31, 2000 o TO: The Honorable Mayor and Board of City Commissioners FROM: James W. Shira, P.E., City Engineer/Utilities DirectorAi • SUBJECT: S.R. 438 Widening • On February 15, 2000 the City Commission authorized the execution of an agreement between the City of Ocoee and the Florida Department of Transportation which acknowledged the city's obligation to locate, protect, relocate, install, adjust or remove those city-owned utility facilities which re it xist fn:-nn FDOT right-of-way and are determined to be in the way of the proposed widening project. Under normal circumstances, the cost to move any facility which is currently located in FDOT right-of- way is borne by the utility.. • In the case of SR 438, a different arrangement has been proposed between the City and FDOT. Under that arrangement, FDOT has agreed to credit to the city, up to $633,900 toward the city's costs to design and construct the required relocations. This credit is in consideration of certain right-of-way that the city is to transfer to FDOT. This transfer is the subject of a separate agenda item prepared by the City Attorney for your consideration tonight. Because of this arrangement, we believe that the city's required relocations on this project can be accomplished with little or no actual expense to the city. There are two additional agreements between FDOT and Ocoee which must be executed, and these are attached for your review and action. The first of these two agreements is shown as District Document No, 2, UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT(AT UTILITY EXPENSE)This document says that all of Ocoee's utilities that are within the current FDOT right-of- way, which are deemed to be in conflict with the proposed widening project, must be moved to a location acceptable to FDOT and that the work is to be at the city's expense. This is a standard agreement, and standard language. However, the last page of this agreement, page 14, says that in this particular case, the city and FDOT have a el 0 , 4Y Protect wotir:**-oi,to 4 -oi,, non-standard agreement for the funding of this work. The figure shown on page 14, $575,335, takes into account the credit previously extended by FDOT against the total $633,900 for the city's design contract with Lochrane Engineering. Your authorization of the execution of this document will acknowledge the city's obligation to move the conflicting utility facilities, but will also acknowledge that FDOT has agreed to an arrangement that significantly reduces the city's financial exposure. Please note the reference on page 5 of the Agreement to an initial estimate of the cost of the utility work. This cost is likely to change as final designs are developed, and again based on the actual bid amount. We believe that the final cost will be well below the amount FDOT is willing to credit to the city. The second of these two agreements is shown as District Document No, 3, UTILITY WORKBYHIGHWA Y CONTRACTOR AGREEMENT(AT FDOT EXPENSE)This document says that if there are city utility facilities located outside of current FDOT right-of-way, within an area that is obtained by FDOT as right-of-way, then the cost of design and construction for the relocation of those facilities is to be borne by FDOT. For the SR 438 project, there is a very small area that fits this description, and it is covered by this agreement. I recommend that the City Commission authorize the Mayor and City Clerk to execute District Document No, 2, UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT(AT UTILITY EXPENSE)and District Document No, 3, UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT(AT FDOT EXPENSE) ® Protect Ucoee`s;Water Resources; GAI Consultants-Southeast,Inc. 201 East Pine Street, Suite 200 Orlando,FL 32801 (407)423-8398 •Fax(407) 843-1070 LETTER OF TRANSMITTAL Utility Coordination Documents TO: Mr. James Shira, P.E., City Engineer City of Ocoee 150 North Lakeshore Drive Ocoee, FL 34761-2258 DATE: July 31, 2000 PROJECT: City of Ocoee Utility Work By Highway Contractor, FDOT's FP ID 239289-1-56-01/02 SR 438 from east of Clarke Road to East of Hiawassee Road, Orange County Lead Fin. Project No.: 239289-1-52-01 Old WPI No: 5114625 SPN: 75250-6525 FAP: 8832 007U WE ARE SENDING YOU: Attached ❑ Under separate cover GM-SE 98805.22 COPIES DESCRIPTION Four Sets FDOT's UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT UTILITY EXPENSE) District Document#2 FDOT's UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT (AT FDOT EXPENSE) District Document#3 REMARKS: The enclosed are the revised Agreements that are ready for the City Commission's Agenda and ratification on August 15, 2000. As we have discussed, the amount of the Initial estimate was taken from the figure provided by your consultant. To his figure was added 2% Construction Administrative Costs and a 10% contingency to arrive at the total amount shown in Section 3.b. This number will be revised at the time the Department's Official Estimated is prepared. The City of Ocoee will be notified of any changes by the District Utility office. COPY TO: Roy Brantley/Staci Nestor FDOT D-5 Utility Office . 7// J n . tility Coordinator STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 S UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTIL02/999 (AT UTILITY EXPENSE) Financial Project ID: 239289-1-56-01 Federal Project ID: 8832 007 U Work Program Item No. (old): 5114625 County/Section No: ORANGE (75) State Job No. (old): 75250-6525 District Document No 2 THIS AGREEMENT, entered into this_day of , year of 2000,by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,hereinafter referred to as the"FDOT",and the CITY OF OCOEE , 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 FP ID 239289-1-52-01,State Road No.:438(Sliver Star Road) , 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: 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 relocation 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 December 1, , year of 2000 . Page 1 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITIES UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 02199 (AT UTILITY EXPENSE) 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 provisions of 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 I Review, March 3, 2000; Phase II Review, May 5, 2000, Phase III Review July 28, 2000; Phase IV Review, October 4, 2000; and Specifications Review December 1, 2000 . 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 UAO 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 pursuant to subparagraph f. above,the FDOT 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 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 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 Page 2 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITIES UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 02/99 (AT UTILITY EXPENSE) horizontal)of the Facilities. The providing of information by the FDOT shall not relieve the UAO of this 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: the making of all final connections at the point of service; the operating of all valves on the existing systems of the City of Ocoee's facilities; the relocations of the existing force main installed by other,prior to the start of the project, to be connected to within this project 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 FDOT'S expense,but not previously identified as such, the UAO 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. 1. 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 obtained prior to construction (Note: It is the intent of this line to allow either attachment of or separate reference to the permit). 2. Performance of Utility Work a. 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 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 Page 3 of 14 710-010-22 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. UTILITIES UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 02/99 (AT UTILITY EXPENSE) 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: In Place Density Testing, 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. 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 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 Page 4 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710.010-22 UTILITIES UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 02199 (AT UTILITY EXPENSE) 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 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 $222,385.00 . 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 NA % for mobilization of equipment for the Utility Work, NA % for additional maintenance of traffic costs for the Utility Work, and 2 % for administrative costs of field work,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): X 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. 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 prior to 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 Page 5 of 14 . STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No 710-010-22 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 02/99 (AT UTILITY EXPENSE) accepted bid amount plus allowances and contingency is in excess of the advance deposit 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. 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 UAO 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 recover the cost 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(3 60)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 Page 6 of 14 • • STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITIES UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 02/99 (AT UTILITY EXPENSE) 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. j. 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 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 Page 7 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITIES UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 02199 (AT UTILITY EXPENSE) 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 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 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 FDOT 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 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 properly within 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. 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 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 Page 8 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES 02199 (AT UTILITY EXPENSE) 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 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 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 under this 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. 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) 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 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 Page 9 of 14 • STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTI o2/99 (AT UTILITY EXPENSE) 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. 7. Force Majeure Neither the UAO-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. 8. Indemnification Check one of the appropriate boxes ❑ below: ❑ For government-owned utilities, To the extent provided by law, 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. 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 UAO from any of the Page 10 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTIL 2/99 (AT UTILITY EXPENSE) 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 or judgment 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. Page 11 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES 02/99 (AT UTILITY EXPENSE) 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 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 UAO: Mr. James Shira, P.E., City Engineer City of Ocoee 150 North Lakeshore Drive Ocoee, FL 34761-2258 If to the FDOT: Resident Engineer FDOT Orlando Construction Office 133 S. Semoran Blvd. Orlando, FL 32807 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." Page 12 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UT'oti99 (AT UTILITY EXPENSE) IN WITNESS WHEREOF,the parties hereto have executed this Agreement effective the day and year first written. UTILITY: City of Ocoee BY: (Signature) DATE: (Typed Name: S. Scott Vandergrift ) (Typed Title: Mayor ) Attested: Approved By the Ocoee City Commission At A Meeting Held On - ,2000 Under Agenda Item No. Recommend Approval by the District Utility Office BY: (Signature DATE: William P. Richards, P.E. FDOT Legal review BY: (Signature) DATE: District Counsel STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY: (Signature) DATE: (Typed Name: Robert Courtelvou, P.E. ) (Typed Title: District Director of Production ) FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: - ) (Typed Title: ) Page 13 of 14 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-22 ES UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILI2/9999 (AT UTILITY EXPENSE) APPENDIX: "CHANGES TO FORM DOCUMENT" The following changes are hereby made to the Utility Work by Highway Contractor Agreement (at UAO Expense)between the State of Florida Department of Transportation (the"FDOT") and The City of Ocoee (the"UAO)dated the day of ,2000,for the project identified as FP ID 239289-1-56-01: 1. The UAO shall convey certain real property interest for the project to the FDOT by executing quitclaim deed for FDOT Parcel 113. Upon the UAO's execution of the deed for Parcel 113,the UAO shall be entitled to an offset of$575,335.00 against payment to be made by the UAO under this Agreement. Nothing herein, shall be deemed to relieve the UAO from timely performing all of the UAO's obligations under this Agreement, it being the intent of the parties to merely authorize an offset. • Page 14 of 14