VII (G) Utility Agreement with Sprint re Maguire Road Agenda 11-21-2000
Item VII G
"(7.,NTE2OF GOOD L117A'G-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONFR
Ocoee S. SCOTT VANDFRGRIF1
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MEMORANDUM
DATE: November 8, 2000
TO: The Honorable Mayor and Board of City Commissioners
FROM: James W. Shira, P.E., City Engineer/Utilities Director
SUBJECT: Maguire Road - Ocoee/Sprint Utility Agreement
During the design phase of the Maguire Road widening project, it was determined that
existing underground conduit owned by Sprint-Florida, Inc. (Sprint) was in the way of
proposed utilities and needed to be moved. We determined that Sprint could not move
the conduit until they installed and activated a new conduit system, and that this created
a potential for significant delays to our roadway project.
To eliminate this problem, we discussed with Sprint the idea of putting our contractor in
charge of removing the old conduit as part of his scheduled work after Sprint completed
activation of their new system. Sprint agreed that this would be acceptable, and agreed
to pay for the cost of the removal.
Attached for your review and action is a proposed agreement between the City of
Ocoee and Sprint-Florida, Inc. This agreement establishes the method by which the
existing Sprint conduit is to be removed by the city's Maguire Road project contractor,
and also establishes the funding process.
Under the terms of the agreement, Sprint is to deposit $125,208.33 with the city, which
is the sum of the contractor's bid for the work ($96,314.10) plus 10% of the bid as an
administrative fee ($9,631.41) plus an additional 20% of the bid as a contingency fee
($19,262.82). This money has been deposited in the city's account as required. (A
copy of Sprint's check is attached.)
The agreement was reviewed and approved by the City Attorney, and has been
executed by Sprint.
I recommend that the City Commission authorize the Mayor and City Clerk to execute
the attached Agreement.
Attachments
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POW •• „
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City of Ocoee Financial Project ID: N/A County/Section No: Orange / N/A
City of Ocoee Project Name: Federal/State/County Project ID: N/A
Maguire Road Improvements, Segments 1 and 2
City of Ocoee Project No.: N/A City of Ocoee Document No: N/A
THIS AGREEMENT, entered into this 31 day of Octe>ber 2000, by and between the CITY
OF OCOEE, FLORIDA, hereinafter referred to as the "CITY", and Sprint-Florida, Inc., hereinafter referred
to as "SPRINT"
WITNESSETH
WHEREAS, the CITY, is constructing, reconstructing, or otherwise changing a portion of a public
road, said project being identified as Maguire Road Improvements, Segments 1 and 2, hereinafter referred to
as the "Project"; and
WHEREAS, SPRINT owns and desires to remove certain 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 removed or placed out of service pursuant to this Agreement); and
WHEREAS, the Project requires the removal of the Facilities hereinafter referred to as "Utility
Work;" and
WHEREAS, the CITY and SPRINT desire to enter into a joint agreement pursuant to Section
337.403(1)(b) of the Florida Statutes for a certain portion of the Utility Work to be accomplished by the
CITY's contractor as part of the construction of the Project; and
WHEREAS, SPRINT, pursuant to the terms and conditions hereof, will bear certain costs associated
with the Utility Work; and
WHEREAS, SPRINT is installing new and unrelated telecommunication infrastructure along Maguire
Road contemporaneously under separate contract and pursuant to a Right of Way Utilization Permit issued by
the City, which is not a portion of the work to be performed under this Agreement nor governed by this
Agreement;
NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by
reference, and the mutual covenants contained herein, the CITY and SPRINT hereby agree as follows:
1. Design of Utility Work
SPRINT warrants and represents the following:
a. SPRINT has prepared, at SPRINT's sole cost and expense, final engineering designs,
plans, technical special provisions, a cost estimate, including a separate cost estimate
for the removal of those certain facilities that SPRINT intends to have the City's
contractor remove, and a contingency utility relocation schedule (said contingency
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schedule to he used in the case of a bid rejection) for the Utility Work (hereinafter
referred to as the "Plan's Package").
b. The Plan's Package has been incorporated into the CITY's contract documents for the
Project. Sprint warrants the sufficiency and accuracy of the Plan's Package, excluding,
however, design work, if any, performed by the City's Engineer that relates solely to
the removal of the Facilities.
c. The Plan's Package identifies a complete scope of work and includes all activities and
work effort required to perform the Utility Work, including but not limited to, all
clearing and grubbing, survey work and a traffic control plan.
d. The Plan's Package complies with the requirements of the CITY's contract documents
for the Project.
e. The technical special provisions which are a part of the Plan's Package have been
prepared in accordance with the City's guidelines on preparation of technical special
provisions and do not duplicate or change the general contracting provisions of the
City's Standard Specifications for this project and any Supplemental Specifications,
Special Provisions, or Developmental Specifications of the City for the Project.
f. SPRINT has provided a copy of the proposed Plan's Package to the CITY, and to such
other right-of-way users as designated by the ClI'Y, for review in time for
incorporation into the City's Contract Documents before the scheduled Pre-bid
conference on May 2, 2000 and has attended such Pre-bid conference on that date.
SPRINT has provided the CITY with a work progress schedule explaining how
SPRINT will meet the CITY's schedule for the Project. The work progress schedule
includes milestones necessary to complete the Plan's Package within the time specified
in the Contract Documents for this Project.
g. Sprint warrants the sufficiency and accuracy of the Plan's Package. In the event that
the CITY finds any deficiencies in the Plan's Package, excluding, however, design
work, if any, performed by the City's Engineer that relates solely to the removal of the
Facilities, then the CITY will notify SPRINT of the deficiencies and SPRINT will
correct the deficiencies and return corrected documents as required by the City. The
CITY's review and approval of the documents shall not relieve SPRINT from
responsibility or liability. SPRINT warrants and represents that all materials composed
of asbestos which need to be removed, relocated or handled are in a safe condition that
will allow such removal.
h. SPRINT shall at all times be and remain solely responsible for proper preparation of
the Plan's Package and for verifying all information necessary to properly prepare the
Plan's Package, including survey information as to the location (both vertically and
horizontally) of the Facilities, excluding, however, design work, if any, performed by
the City's Engineer that relates solely to the removal of the Facilities. The providing of
information by the CITY shall not relieve SPRINT of this obligation nor transfer any of
that responsibility to the CITY.
fvarnco„sDoc oe-353wtaiq wvd 2 of 10 DE-353
i. The Plan's Package identifies all Facilities and the Utility Work which are located
within the limits of the Project that Sprint desires to be performed by CITY's
Contractor. Facilities and Utility Work not to be performed by CITY's contractor have
been separately identified for separate permitting.
j. SPRINT agrees that it will fully cooperate in the scheduling of the work with all other
right-of-way users and the CITY's engineer. Any conflicts that cannot be resolved
through cooperation shall be resolved in the manner determined by the CITY in its
absolute discretion.
2. Performance of Utility Work
a. The CITY shall incorporate that portion of the Plan's Package that identifies Utility
Work to be performed by CITY's contractor into its contract for construction of the
Project.
b. The CITY shall procure a contract for construction of the Project in accordance with
the C1TY's requirements.
c. The portion of the bid of the contractor selected by the CITY concerning the
performance of the Utility Work does not exceed SPRINT'S estimate for such work by
more than ten percent (10%). The CITY has elected not to participate in the cost of the
removal of those certain facilities pursuant to Section 337.403(1)(b) of the Florida
Statutes. SPRINT has elected not to have the Utility Work removed from the CITY's
contract. Therefore, the CITY's contractor shall perform the Utility Work as part of
the Project.
d. During the course of performance of the Utility Work, SPRINT shall perform all
engineering inspection, testing, and monitoring of the Utility Work to insure that it is
properly performed in accordance with the Plan's Package, except for soils compaction
testing, but only to the extent that such testing can be most efficiently performed by the
City's testing firm performing related testing on site. (If the City's firm is not
performing such work in the area where Sprint requires testing, then Sprint, upon
receiving notice from the City, shall perform such testing separately at its own
expense.)
e. Except for the inspection, testing, monitoring and reporting to be performed by
SPRINT as required herein, the CITY will perform all contract administration for its
construction contract. Sprint shall provide all testing, inspections and records required
for proper removal and disposal of asbestos material as detailed in Sprint's Plan
package.
f. SPRINT shall fully cooperate with the CITY, City's engineer, and the City's contractor
in all matters relating to the performance of the Utility Work.
g. The City's engineer has full authority over the Project and SPRINT shall he responsible
for coordinating and cooperating with the CITY's engineer. In so doing, SPRINT shall
make such adjustments and changes in the Plan's Package as the CITY's engineer shall
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determine are reasonably necessary for the prosecution of the Project at no cost or
expense to the CITY.
h. SPRINT shall not make any changes to the Plan's Package after the date on which the
CITY's Pre-bid meeting is conducted for the Project, unless those changes fall within
the categories of changes which are allowed by supplemental agreement to the CITY'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 CITY, which approval shall not be unreasonably withheld, conditioned
or delayed.
3. Cost of Utility Work
a. SPRINT 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 CITY's
engineer to be reasonably necessary, including, but not limited to the cost of changing
the Plan's 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 CITY.
SPRINT shall not be responsible for the cost of delays caused by such adjustments or
changes unless they are attributable to SPRINT pursuant to Subparagraph 4.a.
b. Not later than fourteen (14) days from the date of this agreement, SPRINT shall pay to
the CITY the sum of $96,314.10, the amount of the CITY's contractor's bid for the
Utility Work; plus an additional sum of $9,631.41, which is 10% of the CITY's
contractor's hid for the Utility Work, to be applied by the City towards administrative
costs of field work, tabulation of quantities, Final Estimate processing, professional and
engineering fees and Project accounting ("Allowances"); plus an additional sum of
$19,262.82, which is 20% of the CITY's contractor's bid for the Utility Work, for a
contingency fund to be used as hereinafter provided for changes to the Utility Work
(the "Contingency Fund"). The amounts deposited by SPRINT with the City may be
increased at the discretion of the City as provided in this Agreement. Payment of the
funds pursuant to this paragraph will be made directly to the City.
c. If the total of all costs for the Utility Work is less than the advance deposit amount, the
CITY will, within ten (10) days after the completion of the Utility Work, refund the
amount by which the advance deposit exceeds the final costs.
d. Should contract modifications occur that increase the cost of the Utility Work caused by
defects in SPRINT'S Plans package, SPRINT will be notified by the CITY accordingly.
SPRINT agrees to provide, in advance of the additional work being performed,
adequate funds to ensure that cash on deposit with the CITY is sufficient to fully fund
its share of the increased costs. The CITY shall notify SPRINT as soon as it becomes
apparent the actual costs will overrun the award amount; however, failure of the CITY
to so notify SPRINT shall not relieve SPRINT from its obligation to pay for its full
share of project costs on final accounting as provided herein.
e. The CITY may use the Contingency Fund deposited with the City by SPRINT for
payment of increased costs of the Utility Work. The Contingency Fund may be used
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for changes to the Utility Work. Prior to using any of the Contingency Fund, the
CITY shall provide Seven (7) days written notice to SPRINT. The CITY may then
proceed to perform the Utility Work and recover the cost from the Contingency Fund.
In the event that the Contingency Fund is depleted, SPRINT shall, within seven (7)
calendar days from notification by the CITY, pay to the CITY an additional deposit of
S19,262.82 to be used by the City to pay for any additional costs of the Utility Work
established under this agreement. Additional deposits shall be made by SPRINT under
the same procedures as needed by the City. In the event the cost of the Utility Work is
greater than the total deposits made by Sprint to the City, SPRINT shall pay the
additional amount within twenty (20) calendar days from the date of receiving notice
from the City.
f. The CITY shall have the right to retain out of any payment due SPRINT under this
Agreement an amount sufficient to satisfy any amount due and owing to the CITY by
SPRINT on any other Agreement between SPRINT and the CITY, whether existing
now or in the future.
4. Claims Against SPRINT
a. SPRINT shall be responsible for all costs and damages incurred as a result of any delay
to the CITY or its contractors caused by errors or omissions in the Plan's Package
(including inaccurate location of the Facilities) excluding, however, design work, if
any, performed by the City's Engineer that relates solely to the removal of the
Facilities, or by failure of SPRINT 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 CITY
relating to the Utility Work, the CITY will notify SPRINT of the notice of intent and
SPRINT 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 CITY relating to the Utility
Work, the CITY will notify SPRINT of the claim and SPRINT and the City will
cooperate in analyzing and resolving the claim within a reasonable time. Any
resolution of any portion of the claim directly between SPRINT and the CITY's
contractor shall be in writing, and will be mutually agreeable to the CITY and SPRINT.
d. The CITY may withhold payment of surplus funds to SPRINT until final resolution
(including any actual payment required) of all claims relating to the Utility Work. The
cost of resolving any such claim with the CITY's Contractor shall be charged as an
additional cost of the Utility Work and shall be paid by SPRINT to the City as provided
herein in proportion to the fault of Sprint.
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:
gVclerAenns"e oe-353w6r"yYIN 5 of 10 OE353
a. SPRINT acknowledges its present and continuing ownership of and responsibility for
out of service Facilities.
b. The CITY agrees to allow SPRINT to leave the Facilities within the right-of-way
subject to the continuing satisfactory performance of the conditions of this Agreement
by SPRINT. In the event of a breach of this Agreement by SPRINT, the Facilities shall
be removed upon demand from the CITY in accordance with the provisions of
Subparagraph e. below.
c. SPRINT 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 SPRINT to use due care in its
dealings with others. SPRINT shall be solely responsible for gathering all information
necessary to meet these obligations.
d. SPRINT 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 CITY or other
permitees using or seeking use of the right-of-way.
e. SPRINT agrees that the Facilities shall forever remain the legal and financial
responsibility of SPRINT. SPRINT shall reimburse the CITY 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 is this
paragraph shall be interpreted to require SPRINT to indemnify the CITY for the
CITY's own negligence; however, it is the intent that all other costs and expenses of
any nature be the responsibility of SPRINT.
6. Default
a. In the event that SPRINT breaches any provision of this Agreement, then in addition to
any other remedies which are otherwise provided for in this Agreement, the CITY may
exercise one or more of the following options, provided that at no time shall the CITY
be entitled to receive double recovery of damages;
1. Terminate this Agreement if the breach is material and has not been cured
within fifteen (15) days from the receipt of written notice thereof from CITY.
2. Pursue a claim for damages suffered by the CITY or the public.
3. If the Utility Work is reimbursable under this Agreement, withhold
reimbursement payments until the breach is cured.
4. If the Utility Work is reimbursable under this Agreement offset any damages
suffered by the CITY 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 CITY to third parties.
ktrIerkonsr oe oe353vurmiry.wpd 6 of 10 OE-39
5. Suspend or terminate the issuance of further permits to SPRINT for the
placement of Facilities on CITY property if the breach is material and has not
been cured within fifteen (15) days from the receipt of written notice thereof
from CITY.
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 CITY breaches any provision of this Agreement, then in addition
to any other remedies which are otherwise provided for in the Agreement, SPRINT
may exercise one or more of the following options:
1. Terminate this Agreement if the breach is material and has not been cured
within thirty (30) days from written notice thereof from SPRINT.
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 SPRINT
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 SPRINT nor the CITY 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 it 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
To the fullest extent provided by law, SPRINT shall indemnify, defend and hold harmless the
CITY and all of its officers, agents, elected and appointed officials and employees from all
claims, loss, damage, cost, charges or expense including, but not limited to reasonable
attorneys' fees, to the extent caused by the negligence, recklessness on intentional wrongful
misconduct of SPRINT, its agents, employees, or subcontractors during the performance of the
Agreement.
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9. Attorneys' Fees
In the event that either party seeks to enforce this Agreement by way of legal action, and the
matter is placed in the hands of an attorney, then the prevailing party shall recover its
attorneys' fees and paralegal fees and the court shall determine the amount of such fees and
allow recovery to said prevailing party in entering a judgment. 1'he parties agree that
entitlement to attorneys' fees under this Agreement shall be deemed to include all appellate
attorneys' fees.
10. Venue Selection
The parties agree that the exclusive and proper venue for any collection, enforcement or other
action arising out of or under this Agreement, and/or the Project shall be brought in the Circuit
Court of The Ninth Judicial Circuit in and for Orange County, Florida.
11. 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,
insured and maintained by SPRINT.
e. The CITY may unilaterally cancel this Agreement for refusal by SPRINT 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 SPRINT 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
CITY has manuals and written policies and procedures which may he 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 without reference
to its conflict of laws provisions. 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. SPRINT shall have a continuing
obligation to notify each District of the CITY 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:
s\cLer'«N,\oe'«-353warirywpd 8 of 10 OE-353
If to SPRINT:
R. N. .St e11
En-ri neerinq Manger
P.O. Pox 770339
Winter warden, Florida 34777-0339
If to the CITY:
(City Manager)
Ellis Shapiro, City Manager
150 North Lakeshore Drive
Ocoee, Florida 34761
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and
year first written.
SPRINT-FLORIDA, INC. C >
BY: DATE: /0/3i/2000
(Signature)
(Typed Name: f. J :Taylor, Jr.
(Typed Title: pis-l-r; { ,iu9rr - CSD )
Signed, Sealed and Delivered CITY OF OCOEE, FLORIDA
in the Presence of:
By:
S. Scott Vandergrift, Mayor
Print Name:
Print Name: ATTEST:
Name:
Title:
(SEAL)
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FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD
APPROVED AS TO FORM AND ON , 20
LEGALITY this day of UNDER AGENDA ITEM NO.
, 20
FOLEY & LARDNER
By:
City Attorney
oEa9
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Sprint United Management Company 0002726815
Paying Agent on Behalf of Itself and Sprint Corporation's Affiliates
P. 0 Box 1977
Overland Park. Kansas 66211 56-382/412
1-888-283-4636
11/02/2000 PAY **********125,208 COLLARS AND 33 CENTS **********125,208.33
PAY TO THI
VOID IF NOT CASHED WITHIN 180 DAYS
000016 M
CITY OF OCOEE Authorized Signature
ISO N LAKESHORE OR 4
OCOEE FL 34781
0000 27 268 L 511 1:04 & 2038 241: 96000 L6 249e