Item #10 Approval to Execute utility work by Highway Contractor Agreement with the FDOT in connection with widening of SR 50 Sipe Center of Goon] Li
AGENDA ITEM COVER SHEET
Meeting Date: August 2, 2011
Item # ( Q
Reviewed By: /G2
Contact Name: Al Butler, CIP Manager Department Director:
Contact Number: 407 - 905 -3100, ext. 1543 City Manager:
Subject: Approval of and authorization for the Mayor to execute a Utility Work by Highway Contractor
Agreement with the Florida Department of Transportation in connection with the widening of SR 50 that
will add the relocation of City -owned water and sanitary sewer facilities to the highway construction
project. The current estimated cost of the work is $432,839.68, which must be paid by the City by April
20, 2012. (District 2 — Wilsen)
Background Summary:
The Florida Department of Transportation (FDOT) plans to widen SR 50 through the City of Ocoee. The
first part of the project will widen SR 50 from east of the entrance to the West Oaks Mall to Good Homes
Road. We expect this project to begin in mid -2012. FDOT has agreed to allow the City of Ocoee to pay
the additional cost of relocating water and sanitary sewer force main pipelines between Vizcaya Lakes
Blvd. and Vintage Village Pkwy.
Such work is done through a Utility Work by Highway Contractor Agreement whereby the City agrees to
pay the cost of the work based on an engineer's cost estimate provided by the Florida DOT. The current
cost estimate from the City's utility design engineering firm is $386,464. The Agreement calls for the
addition of a 10% contingency allowance and a 2% construction engineering and administration fee,
bringing the total estimated cost to $432,839.68. City staff has included an estimated final cost of
$450,000 in the proposed Utilities capital budget for FY 2012.
Issue:
Should the City enter into an Agreement with FDOT to add the relocation of water and sanitary sewer
pipelines to the planned work to widen SR 50 at a cost of $450,000 or less?
Recommendations
The Engineering and Utilities departments recommend that the City Commission authorize the Mayor to
execute the Utility Work by Highway Contractor Agreement to include the relocation of City utility
pipelines within the scope of work for widening SR 50.
Attachments:
• Utility Work by Highway Contractor Agreement.
• Memorandum of Agreement.
1
Financial Impact:
The cost of the work is part of the proposed funded Utilities CIP budget for FY 2012 at $450,000. The
actual amount to be paid will be determined in early 2012. If the amount required exceeds the budgeted
funds of $450,000, then staff will return to the City Commission to modify the budget or propose to do the
work through a City contract.
Type of Item: (please mark with an "x")
Public Hearing For Clerk's Dent Use:
Ordinance First Reading Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
X Commission Approval
Discussion & Direction
X Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney N/A
Reviewed by Finance Dept. N/A
Reviewed by ( ) N/A
2
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710 -010 -22
UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 10/04
(AT UTILITY EXPENSE)
Financial Project ID: 239535- 5 -56 -01 Federal Project ID: N.A.
County: Orange State Road No.: 50
District Document No: 1
Utility Agency /Owner (UAO): City of Ocoee
THIS AGREEMENT, entered into this day of , year of , by and between the
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FDOT ", and 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 Financial Project No. 239535- 5- 52 -01, State Road
No.: 50, 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), 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 Work 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 March , year of 2012.
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 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
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710- 010-22
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTIL10 /04
(AT UTILITY EXPENSE)
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 II (60 %): Phase
III (90 %): and Final Review. 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 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: NA. 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.
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 applied for at
a later date)
(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
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710 -010-22
UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 10/04
(AT UTILITY EXPENSE)
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), Florida Statutes, the UAO may elect to have the Utility Work removed
from the FDOT's contract by notifying the FDOT in writing within 5 days from the date that the
UAO is notified of the bid amount. Unless this election is made, the Utility Work shall be
performed as part of the Project by the FDOT's contractor.
d. If the UAO elects to remove the Utility Work from the FDOT's contract in accordance with
Subparagraph 2. c., the UAO shall perform the Utility Work separately pursuant to the terms and
conditions of the FDOT's standard relocation agreement, the terms and conditions of which are
incorporated herein for that purpose by this reference, and in accordance with the contingency
relocation schedule which is a part of the Plans Package. The UAO shall proceed immediately
with the Utility Work so as to cause no delay to the FDOT or the FDOT's contractor in
constructing the Project.
e. The UAO shall perform all engineering inspection, testing, and monitoring of the Utility Work to
insure that it is properly performed in accordance with the Plans Package, except for the
following activities:
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, Florida Statutes. All changes, regardless of the
nature of the change or the timing of the change, shall be subject to the prior approval of the
FDOT.
3. Cost of Utility Work
a. The UAO shall be responsible for all costs of the Utility Work and all costs associated with any
adjustments or changes to the Utility Work determined by the FDOT's engineer to be necessary,
including, but not limited to the cost of changing the Plans Package and the increase in the cost
of performing the Utility Work, unless the adjustments or changes are necessitated by an error or
omission of the FDOT. The 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 $386.464.00. 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
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710- 010-22
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTIL10I04
(AT UTILITY EXPENSE)
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 2% for
administrative costs of field work, tabulation of quantities, Final Estimate processing and Project
accounting (said amounts are to be hereinafter collectively referred to as the Allowances); plus
10% of the official estimate for a contingency fund to be used as hereinafter provided for changes
to the Utility Work during the construction of the Project (the Contingency Fund).
d. Payment of the funds pursuant to this paragraph will be made (choose one):
❑ directly to the FDOT for deposit into the State Transportation Trust Fund.
as provided in the attached Memorandum of Agreement between UAO, FDOT and
the State of Florida, Department of Financial Services, Division of Treasury.
Deposits of Tess than $100,000.00 must be pre- approved by the Department of
Financial Services and 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 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
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710- 010-22
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTIL'TI04
(AT UTILITY EXPENSE)
necessary, the FDOT may proceed to perform the work and recover the cost thereof pursuant to
the provisions of Section 337.403(3), Florida Statutes. In the event that the Contingency Fund is
depleted, the UAO shall, within fourteen (14) calendar days 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.
I. Upon final payment to the Contractor, the FDOT intends to have its final and complete
accounting of all costs incurred in connection with the work performed hereunder within three
hundred sixty (360) days. All project cost records and accounts shall be subject to audit by a
representative of the UAO for a period of three (3) years after final close out of the Project. The
UAO will be notified of the final cost. Both parties agree that in the event the final accounting of
total project costs pursuant to the terms of this agreement is less than the total deposits to date, a
refund of the excess will be made by the FDOT to the UAO in accordance with Section 215.422,
Florida Statutes. In the event said final accounting of total project costs is greater than the total
deposits to date, the UAO will pay the additional amount within forty (40) calendar days from the
date of the invoice. The UAO agrees to pay interest at a rate as established pursuant to Section
55.03, Florida Statutes, on any invoice not paid within the time specified in the preceding
sentence until the invoice is paid.
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 FDOT's 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 FDOT's 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 the FDOT to the FDOT's contractor.
5. Out of Service Facilities
No Facilities shall be placed out of service unless specifically identified as such in the Plans. The
following terms and conditions shall apply to Facilities placed Out -of- Service:
a. The UAO acknowledges its present and continuing ownership of and responsibility for out of
service Facilities.
b. The FDOT agrees to allow the UAO to leave the Facilities within the right of way subject to the
continuing satisfactory performance of the conditions of this Agreement by the UAO. In the event
of a breach of this Agreement by the UAO, the Facilities shall be removed upon demand from the
FDOT in accordance with the provisions of Subparagraph e. below.
c. The UAO shall take such steps to secure the Facilities and otherwise make the Facilities safe in
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710- 010-22
UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 10/04
(AT UTILITY EXPENSE)
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 permittees 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, 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 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.
(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 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.
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710 -010-22
UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 10/04
(AT UTILITY EXPENSE)
(7) Perform any work with its own forces or through contractors and seek repayment for the
cost thereof under Section 337.403(3), 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 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
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 contractors 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 contractors
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 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,
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710 - 010-22
UTILITIES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT 10/04
(AT UTILITY EXPENSE)
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 contractors 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 contractors 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 fourteen (14) 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 fourteen (14) 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 of 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.
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:
City Manager,
Page 8 of 10
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710- 010-22
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTIL1
(AT UTILITY EXPENSE)
City of Ocoee
150 N. Lakeshore Drive
Ocoee, FL 34761
If to the FDOT:
Resident Project Engineer;
FDOT Orlando Construction Office
113 South Semoran Blvd.
Orlando FL 32807
10. CerilTlcatfon
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.
You MUST signify by selecting or checking which of the following applies:
❑ No changes have been made to this Form Document and no Appendix entitled "Changes to Form
Document" is attached.
® No changes have been made to this Form Document, but changes are included on the attached
Appendix entitled "Changes to Form Document."
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written.
UTILITY: City of Ocoee
BY:(Signature) DATE:
(Typed Name: )
T . ed Title:
Recommend Approval by the District Utility Office
BY: (Signature) DATE:
FDOT Legal review
BY: (Signature) DATE:
District Counsel
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
BY: (Signature) DATE:
Page 9 of 10
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710- 010-22
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTIL10/04
(AT UTILITY EXPENSE)
(Typed Name: )
(Typed Title: )
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
BY: DATE:
(Typed Name: )
(Typed Title: )
Page 10of9
APPENDIX — City of Ocoee, Florida
"Changes to Form Document"
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT
(AT UTILITY EXPENSE)
UAO: CITY OF OCOEE, FLORIDA UAO ADDRESS:
City of Ocoee,
150 N. Lakeshore Drive
BY: Ocoee, FL 34761
S. Scott Vandergrift, Mayor
59- 6019764
FEDERAL EMPLOYER I.D. NUMBER
ATTEST:
BY:
Beth Eikenberry, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY CITY OF OCOEE
THE CITY OF OCOEE, FLORIDA, COMMISSION AT A MEETING HELD ON
APPROVED AS TO FORM AND LEGALITY
this _ day of UNDER AGENDA ITEM NO.
FOLEY & LARDNER, LLP
BY:
Paul Rosenthal, City Attorney
MEMORANDUM OF AGREEMENT
THIS AGREEMENT, made and entered into this , day of , 20_,
by and between the State of Florida, Department of Transportation, hereinafter referred to as
"FDOT' and the State of Florida, Department of Financial Services, Division of Treasury, and City of
Ocoee, hereinafter referred to as "Participant."
WITNESSETH
WHEREAS, FDOT is currently constructing the following project:
Financial Project Number: 239535- 5 -56 -01
County: Orange
hereinafter referred to as the "Project ".
WHEREAS, FDOT and the Participant entered into a Locally Funded Agreement dated
, wherein FDOT agreed to perform certain work on behalf of the
Participant in conjunction with the Project.
WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in the best
interest of the FDOT and the Participant to establish an interest bearing escrow account to provide
funds for the work performed on the Project on behalf of the Participant by the FDOT.
NOW THEREFORE, in consideration of the premises and the covenants contained herein, the
parties agree to the following:
1. An initial deposit in the amount of $ 386,464.00 (Three Hundred Eighty -Six Thousand
Four Hundred Sixty -Four Dollars) will be made by the Participant into an interest bearing escrow
account established by the FDOT for the purposes of the project. Said escrow account will be
opened with the Department of Financial Services, Division of Treasury, Bureau of Collateral
Management on behalf of the FDOT upon receipt of this Memorandum of Agreement. Such account
will be an asset of FDOT.
2. Other deposits will be made only by the Participant as necessary to cover the cost of
additional work prior to the execution of any Supplemental Agreements.
3. All deposits shall be made payable to the Department of Financial Services, Revenue
Processing and mailed to the FDOT Office of Comptroller for appropriate processing at the following
address:
Florida Department of Transportation
Office of Comptroller
605 Suwannee Street Suite B
Mail Station 42 -B
Tallahassee, Florida 32399 -0450
ATTN: LFA Section
A copy of this Agreement should accompany any deposits. When the check is mailed to
Tallahassee, the District Office should instruct the Participant to mail the District Office
a copy of the check.
4. The FDOT's Comptroller and /or her designees shall be the sole signatories on the
escrow account with the Department of Financial Services and shall have sole authority to authorize
withdrawals from said account.
5. Unless instructed otherwise by the parties hereto, all interest accumulated in the
escrow account shall remain in the account for the purposes of the project as defined in the LFA.
6. The Department of Financial Services agrees to provide written confirmation of
receipt of funds to the FDOT.
7. The Department of Financial Services further agrees to provide periodic reports to the
FDOT.
STATE OF FLORIDA STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION DEPARTMENT OF FINANCIAL SERVICES
COMPTROLLER DIVISION OF TREASURY
PARTICIPANT: CITY OF OCOEE, FLORIDA PARTICIPANT ADDRESS:
City of Ocoee,
150 N. Lakeshore Drive
BY: Ocoee, FL 34761
S. Scott Vandergrift, Mayor
FEDERAL EMPLOYER I.D. NUMBER
ATTEST:
BY:
Beth Eikenberry, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY CITY OF OCOEE COMMISSION
THE CITY OF OCOEE, FLORIDA, AT A MEETING HELD ON
APPROVED AS TO FORM AND LEGALITY , UNDER AGENDA
ITEM NO.
this _ day of ,
FOLEY & LARDNER, LLP
BY:
Paul Rosenthal, City Attorney