Loading...
2013-07 Utility Agmt DOT 70/441 Impr•c RESOLUTION NO. 2013 -07 A RESOLUTION OF THE CITY OF OKEECHOBEE, FLORIDA, APPROVING A UTILITY WORK AGREEMENT WITH THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, FOR IMPROVEMENTS ALONG STATE ROAD 70; AUTHORIZING THE PUBLIC WORKS DIRECTOR TO EXECUTE AGREEMENT; DIRECTING THE CITY CLERK TO PROVIDE CERTIFIED COPIES; PROVIDING FOR CONFLICT; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the State of Florida Department of Transportation, hereinafter referred to as FDOT, proposes to construct or reconstruct a transportation facility identified as Project ID No. 425846- 1- 52 -01, State Road 70, from NW /SW 4th Avenue to NE /SE 3rd Avenue, hereinafter referred to as the Project; and WHEREAS, in order for the FDOT to proceed with the Project, it is necessary for the City of Okeechobee, hereinafter referred to as the Utility Authority Owner (UAO), to execute and deliver to the FDOT the agreement, as identified as Utility Work By Highway Contractor Agreement, hereinafter referred to as the Agreement. NOW, THEREFORE, be it resolved before the City Council for the City of Okeechobee, Florida; presented at a duly advertised public meeting; and passed by majority vote of the City Council; and properly executed by the Mayor or designee, as Chief Presiding Officer for the City: SECTION 1. That David Allen, Public Works Director for the City of Okeechobee is hereby authorized and directed to execute and deliver the Agreement to the FDOT. SECTION 2. The City Clerk is directed to forward a certified copy of this Resolution, along with the executed Agreement to the FDOT. SECTION 3. All resolutions or parts of resolutions in conflict herewith are hereby repealed. SECTION 4. If any section, subsection, sentence, clause, phrase or portion of this Resolution, or application hereof, is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion or provision and such holding shall not affect the validity of the remaining portions or applications here. SECTION 5. This resolution shall become effective immediately upon its adoption. INTRODUCED in regular session this 17th day of September, 2013, and ADOPTED after postponing until this 1st day of October, 2013. ATTEST: JO, Lane Gami otea MC City Clerk REVIEWED FOR LEGAL S'LJFFICIENCY: 'O_J/Ar\ k it John R. Cook, City Attorney Resolution No. 2013 -07 Page 1 of 1 7 James E. Kirk, Mayor a STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 - 010 -55 UTILITIES 10/04 Page 1 of 8 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): CITY OF OKEECHOBEE THIS AGREEMENT, entered into this j-z ?T 11 day of 0- <t1.,, 6,, year of J-c'r 3 , by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "FDOT, and CITY OF OKEECHOBEE, hereinafter referred to as the "UAO "; WITNESSETH: WHEREAS, the UAO owns or desires to install certain utility facilities which are located on the public road or publicly owned rail corridor identified below, hereinafter referred to as the "Facilities" (said term shall be deemed to include utility facilities as the same may be relocated, adjusted, or placed out of service); and WHEREAS, the FDOT, is currently engaging in a project which involves constructing, reconstructing, or otherwise changing a public road and other improvements located on a public road or publicly owned rail corridor identified as SR 70 from NW /SW 4th Ave to NE /SE 3rd Ave, State Road No.70, hereinafter referred to as the "Project "; 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, under the law of the State of Florida, the Utility Work must be performed at the sole cost and expense of the UAO; and WHEREAS, the FDOT and the UAO desire to enter into an agreement which establishes the terms and conditions applicable to 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. Performance of Utility Work a. The UAO shall perform the Utility Work in accordance with the utility relocation schedule attached hereto as Exhibit A and by this reference made a part hereof (the Schedule) and the plans and specifications for the Utility Work which have been previously approved by the FDOT (the Plans), said Plans being incorporated herein and made a part hereof by this reference. If the Schedule and the Plans have not been prepared as of the date of the execution of this Agreement, then the Utility Work shall be performed in accordance with the Plans, and the Schedule that are hereafter prepared in compliance with the notice previously sent to the UAO which established the terms and conditions under which those documents are to be prepared. The STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 - 010 -55 UTILITIES 10/04 Page 2 of 8 FDOT's approval of the Plans shall not be deemed to be an adoption of the Plans by the FDOT nor a substitution for the proper exercise of engineering judgment and the UAO shall at all times remain responsible for any errors or omissions in the Plans. The Utility Work shall include all Facilities located on the Project and neither the failure of the UAO to include all of the Facilities in the Schedule, nor the Plans, nor the failure of the FDOT to identify this omission during its review of the Plans shall relieve the UAO of the obligation to make those Facilities part of the Utility Work. Time shall be of the essence in complying with the total time shown by the Schedule for the Utility Work as well as any and all interim time frames specified therein. The Utility Work shall be performed in a manner and using such methods so as to not cause a delay to the FDOT or its contractors in the prosecution of the Project. 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 or the Schedule (including location of the Facilities and the proper inclusion of all Facilities as part of the Utility Work as stated above); failure to perform the Utility Work in accordance with the Plans and Schedule; or failure of the UAO to comply with any other obligation under this Agreement or under the law. b. All Utility Work shall be performed by UAO's own forces or its contractor at the UAO's sole cost and expense. The UAO shall be responsible for obtaining any and all permits that may be necessary to perform the Utility Work. The FDOT's Engineer (as that term is defined by the FDOT's Standard Specifications for Road and Bridge Construction) 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 and Schedule as the FDOT's engineer shall determine are necessary for the prosecution of the Project and shall stop work or modify work upon order of the FDOT's engineer as determined by the FDOT's engineer to be necessary for public health, safety or welfare. 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 1 a. c. After the FDOT has received a proper Schedule and Plans, the FDOT will issue a notice to the UAO which authorizes the Utility Work to proceed. The UAO shall notify the appropriate FDOT office in writing prior to beginning the Utility Work and when the UAO stops, resumes, or completes the Utility Work. The Utility Work shall be performed under the conditions of, and 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 pending (Note: Intent of this line is to allow either attachment of or separate reference to the permit). 2. Claims Against UAO a. 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, in accordance with the FDOT's procedure, 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. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 - 010 -55 UTILITIES 10/04 Page 3 of 8 b. 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. 3. Out of Service Facilities No Facilities shall be left in place on FDOT's Right of Way after the Facilities are no longer active (hereinafter Placed out of service /Deactivated) unless specifically identified as such in the Plans. The following terms and conditions shall apply to Facilities Placed out of service /Deactivated, but only to said Facilities Placed out of service /Deactivated: a. The UAO acknowledges its present and continuing ownership of and responsibility for Facilities Placed out of service /Deactivated. 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 3. 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 concerning the Facilities that are Placed out of service /Deactivated of the FDOT or other permittees using or seeking use of the right of way. e. The UAO shall remove the Facilities upon 30 days prior written 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. In the event that the Facilities that are Placed out of Service /Deactivated would not have qualified for reimbursement under this Agreement, 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. In the event that the Facilities that are Placed out of Service /Deactivated would have qualified for reimbursement only under Section 337.403 (1)(a), Florida Statutes, 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 because such a STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 - 010 -55 UTILITIES 10/04 Page 4 of 8 removal would be considered to be a separate future relocation not necessitated by the construction of the project pursuant to which they were Placed out of service /Deactivated, and would therefore not be eligible and approved for reimbursement by the Federal Government. In the event that the Facilities that are Placed out of service /Deactivated would have qualified for reimbursement for other reasons, removal of the out of service Facilities shall be reimbursed by the FDOT as though the Facilities had not been Placed out of service /Deactivated. 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 the Facilities or the discharge of hazardous substances or materials 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. 4. 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 60 days from written notice thereof from the FDOT. (2) Pursue a claim for damages suffered by the FDOT. (3) 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 60 days from written notice thereof from the FDOT until such time as the breach is cured. (4) Pursue any other remedies legally available. (5) 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 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) may exercise one or more of the following options: 710 - 010 -55 UTILITIES 10/04 Page 5 of 8 (1) Terminate this Agreement if the breach is material and has not been cured within 60 days from written notice thereof from the UAO. (2) 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 and from any statutory obligations that either party may have with regard to the subject matter hereof. 5. 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; 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. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 - 010 -55 UTILITIES 10/04 Page 6 of 8 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 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. 6. 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. 7. Miscellaneous a. The Facilities shall at all times remain the property of and be properly protected and maintained by the UAO in accordance with the then current Utility Accommodation Manual and the current utility permit for the Facilities. b. Pursuant to Section 287.058, Florida Statutes, 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. c. 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 shall be applicable at the time of the Project and the relocation of the Facilities and except that the UAO and the FDOT may have entered into joint agreements for Utility Work to be performed by FDOT's highway contractor. To the extent that such a joint agreement exists, this Agreement shall not apply to Facilities covered by the joint agreement. Copies of FDOT manuals, policies, and procedures will be provided to the UAO upon request. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 - 010 -55 UTILITIES 10/04 Page 7 of 8 d. 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 provisions hereof. e. Time is of the essence in the performance of all obligations under this Agreement. 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: David Allen City of Okeechobee 55 SE 3111 Ave. Okeechobee, FL 34974 If to the FDOT: FDOT District 1 Utilities Administrator P.O. Box 1249 Bartow, FL 33831 - 1249 8. 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." 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." STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 - 010 -55 UTILITIES 10/04 Page 8 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written. UTILITY: CITY OF OKEECHOBEE BY: (Signature) .,. ---'',1 DATE: 10/2/2013 (Typed Name: David Allen (Typed Title: Public Works Director ) ) Recommend Approval by the District Utility Office BY: (Signature) FDOT Legal review BY: (Signature) »l c , DATE: 12-q- 13 ii i'- &`Yi, DATE: /,Z - 41-i3 District Counsel STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY: (Signature) �����iLr -s ��,� DATE: f z/2/i3 (Typed Name: Chris Smith ) (Typed Title: Director of Transportation Development ) FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: N/A (Typed Title: N/A ) ) Rule 14-46 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 710-010-05 UTILITIES 12/09 Page 1 of 3 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): City of Okeechobee A. Summary of Utility Work And Execution Estimated Time (calendar days) Total Time Prior To FDOT Project Construction 5 /Owner (UAO) to transmit to the Florida Department of Transportation location, relocation, adjustment, installation, and /or protection of their preliminary construction plans dated August 1, 2013 Any Total Time During FDOT Project Construction 4 This document has been developed as the method for a Utility Agency (FDOT), the FDOT's Contractor, and other right -of -way users, the facilities, on this FDOT project. The following data is based on FDOT deviation by the FDOT or its contractor from the plans, as provided, FDOT of such change, this utility may require additional days for assessment responsible for events beyond the control of the UAO that could not by the UAO with the exercise of due diligence at the time of the occurrence. starting, stopping, resuming, or completing work. UAO Project Representative: David Allen may render this work schedule null and void. Upon notification by and negotiation of a new work schedule. This UAO is not reasonably be anticipated by the UAO and which could not be avoided The UAO agrees to notify the Department in writing prior to Telephone Number: 863 - 763 -3372 x 225 UAO Field Representative: Donnie Robertson Telephone Number: 863 - 763 -3372 x 213 This document is a printout of an FDOT form maintained additions, deletions or substitutions are reflected only text of the document itself. Hand notations on affected Appendix but are for reference purposes only and do represents that no change has been made to the text Document ". You MUST signify by selecting or checking which of the in an electronic format and all revisions thereto by the UAO in the form of in an Appendix entitled "Changes to Form Document" and no change is made in the portions of this document may refer to changes reflected in the above -named not change the terms of the document. By signing this document, the UAO hereby of this document except through the terms of the appendix entitled "Changes to Form following applies: attached. Number of Attachment Pages. ►4 No changes to forms document. ■ Appendix "Changes to Forms Document" is Atttfiori: ed Utility Agent: _ * ne a (EOR): Acceptance by District Utilities: 1. 2/ (Signature) (Signature) ignature) David Allen Erik Leschak, PE Shirley McCrary (Printed Name) (Printed Name) (Printed Name) Director of Public Works Engineer of Record District Utilities Administrator (Title) (Title) (Title) October 2, 2013 l 0 Ll l (l3 11 (f i- i 3 (Date) (Date) (Date) (* *When requested by the District, the FOR will attest to compatibility of plans, specifications and Utility Work Schedule) STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 710 -010 -05 UTILITIES 12/09 Page 2 of 3 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: NIA County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): City of Okeechobee B. Special Conditions / Constraints The City maintains an irrigation system within the park area that will be cut and capped prior to construction. The City maintains some electrical outlets within the park area that will be removed prior to construction. There is a buried Emergency Traffic Signal Communications cable within a 2" conduit that runs under the existing sidewalk along the southeast quadrant of the intersection of SR 70 and US 441, between US 441 and SE 3'd Ave. The City of Okeechobee will place new FOC within the proposed conduit to be placed by the contractor. I STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 710 -010 -05 UTILITIES 12/09 Page 3 of 3 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): City of Okeechobee C. Disposition of Facilities (List All Existing & Proposed) on Project: UTILITY FACILITIES BY STATUS/ TYPE /SIZE /MATERIAL/OFFSET TO BASELINE FROM STA TO STA DESCRIPTION OF UTILITY WORK DEPENDENT ACTIVITIES M.O.T. PHASE NUMBER CONSECUTIVE CALENDAR DAYS STA 47 +20, 75' RT to STA 55 +78, 75' RT — 4" PVC WM STA 48 +39, 75' RT to 55' RT, to STA 50 +04, 55' RT, then exiting R/W — 2" PVC WM STA 50 +04 55' RT to STA 50 +76, 55' RT, then exiting R/W — 2" PVC WM STA 52 +07, 60' RT to 58' RT, to STA 54 +48, 58' RT, then exiting R/W — 2" PVC WM STA 55 +78, 60' RT to 57' RT, to STA 58 +16, 57' RT, then exiting R/W — 2" PVC WM STA 60 +60, 46' RT to 62 +30, 46' RT — 2" PVC WM STA 60 +72, 48' RT —12" galv. storm pipe enters into R/W from south and ties into FDOT drainage BE Emergency Traffic cable within 2" conduit 58 +33, 60' Lt. on the NW corner (proposed cabinet) crossing SR 70 from to 58 +20, 60' Rt. to 58 +39, 87' Rt, then cross US 441 to 59 +59, 84' Rt. to 66 +16, 53' Rt. on the SE corner of SE 3rd Avenue. BE Emergency Traffic FOC STA 58 +35, 57' RT to STA 66 +15, 47' RT STA 62 +45, 8" San crossing SR 70 To remain To be removed To be removed To be removed To be removed To be removed To remain Proposed — to be placed within the 2" conduit that will be constructed by FDOT's contractor To be removed To remain None None None None None None None Prior to drainage replacement; ties into temporary traffic signal Placement & activation of new traffic cable None N/A Prior to Const Prior to Const Prior to Const Prior to Const Prior to Const N/A 1 1 N/A 0 1 1 1 1 1 0 2 2 0 Hydro Solutions Consulting, LLC CIO Florida Department of Transportation District One Utilities 801 N. Broadway Ave P.O. Box 1249 Bartow, FL 33830/33831 December 23, 2013 "City of Okeechobee Mr. Donnie Robertson 55 SE 3`d Ave. Okeechobee, FL 34974 RE: FP ID : 425846- 1 -52 -01 Section : 91070 County : Okeechobee SR : 70 Description : SR 70 at US 441 intersection improvement Dear Mr. Robertson: S� For the above referenced project, Hydro Solutions Consulting has been employed by the Department of Transportation to oversee the coordination of relocations and /or adjustments of your facilities. Please address correspondence about coordination, both verbal and written, to Hydro Solutions Consulting, Jerrold R. Whitt, Special Proiect Manager at the FDOT address below /above. The enclosed Utility Work Agreement (At UAO's sole expense) and supporting documents have been approved by the Department. This project is scheduled to be let to construction in March 2014. You are advised to proceed with your utility work as depicted in the approved Utility Work Schedule. Prior to the commencement of your work, you must obtain an approved Utility Permit. This work will need to be coordinated under the direction of the Department's local Operation Center Resident Construction Engineer, and must be performed in accordance with Department regulations. The actual utility work time charges are to begin on or before the Departments Contractor's first chargeable contract day and run in conjunction with your approved Utility Work Schedule. Any changes, revisions, deletions, or additions to the approved Utility Work Schedule must be documented and approved by the Department, by all parties, the Contractor and the Utility Agency Owner. Thank you for your cooperation. If you have any questions, please contact our office. Sincerely, kzeo—d44 t?,4111;- Jerrold R. Whitt, Special Project Manager JRW /JRW /jrw Enclosures xc: Operations Center Engineer, w /Agreement Package (MS 1 -91) Larry Zagardo, District Construction, w /Agreement Package (MS 1 -6) Amy Setchell, P.E., Design Project Manager, w /Agreement Package (MS 1 -) Sally Prescott, Senior Utility Coordinator Katy Valdez, Utilities Administrative Assistant, to be scanned and filed (MS 1 -11) Page 1 3616 Harden Blvd.; Number 110; Lakeland Florida, 33803; Phone (863)- 559 -2471, Fax (863) 701 -9096 City of Okeechobee Office of the City Clerk ,apcie 3, 2013 Ms. Sally Prescott Senior Utility Coordinator State of Florida Department of Transportation 4803 George Road, Suite 350 Tampa, FL 33634 Dear Ms. Prescott: Enclosed herewith please find (4) Utility Work Agreements and the Utility Work Schedule between the State of Florida Department of Transportation and the City of Okeechobee for utility facilities to Okeechobee State Road 70, Financial Project Id. No. 425846- 1- 52 -01. Please sign all contracts and forward (1) one Utility Work Agreement and (1) one Utility Work Schedule back to the Office of the City Clerk in the provided enclosed envelope. Also enclosed for your records(4) certified copies of Resolution No. 2013 -07 authorizing the Public Works Director to execute the agreements. Should you require any additional information please contact my office at (863) 763 -3372 ext. 215. With best regards, I am Sincerely, Lane Gamiotea, CMC City Clerk Enclosures LG /mj cc via email: 0- 9- 3 Lc d Ccod. Brian Whitehall, City Administrator - CM d ttk L David Allen, Public Works Director bias, d (ac - " u ! rut-Y, 4 & --Wok U) ,41, e ei Vk- c E aY1c1 CLt d c ti gis- r cc-E 55 S.E. Third Avenue • Okeechobee, Florida 34974 -2903 • (863) 763 -3372 • Fax: 63) 763 -1686 Sa it Dresc:oti-& e cootr o Co rn AGENDA OCTOBER 1, 2013 - REGULAR MEETING • PAGE 3 OF 7 151 COUNCIL ACTION - DISCUSSION -VOTE VII. UNFINISHED BUSINESS CONTINUED. A. Discussion for motion on the floor made by Council Members Williams and Maxwell to adopt proposed Resolution No. 2013-06, releasing to FOOT easements for Blocks G, L, E, R, and P of FLAGLER PARKS, City of Okeechobee, Plat Book 5, Page 5, and authorizing the Mayor to execute a Quit Claim Deed for the SR 70 Improvements Project continued. B. Discussion for motion on the floor made by Council Members Maxwell and O'Connor to adopt proposed Resolution No. 2013 -07, approving a Utility Work Agreement with FOOT for the SR 70 Improvements Project and authorizing Public Works Director David Allen to execute agreement - City Attorney (Exhibit 2). i Council Member Maxwell conveyed his objections in the City approving the deeds due to FDOT's failure to be forthright in communicating fully with the City. Had the City been aware of all the information, the project could have been approached differently. Concessions were made by the City due to our belief that certain amenities were being approved by FOOT. Discussion then turned to whether the approval of the Quit Claim Deed was necessary for the project to proceed. Attorney Cook explained that FDOT can proceed without the deed according to Florida Statute Chapter 74. Mayor Kirk remarked that even though FDOT can proceed without the City's approval, they must feel the City has an interest in the properties or they would not have made the request. Not approving this may send a clear message of our disappointment on how this was handled. VOTE KIRK - No WATFORD - NO MAXWELL - No O'CONNOR - No WILLIAMS - No MOTION DENIED. Mayor Kirk opened the discussion, motion on the floor postponed from September 17, 2013, made by Council Members Maxwell and O'Connor to adopt proposed Resolution No. 2013 -07, approving a Utility Work Agreement (UWA) with FOOT for the SR 70 Improvements Project and authorizing Public Works Director David Allen to execute agreement, Council asked whether Staff was able to verify the interpretation of the UWA language and when the Okeechobee Utility Authority (QUA) Work Agreement will be approved. Public Works Director Allen has been in communication with FOOT and he is confident that the cost to cure is adequate to cover expenses that FDOT might attempt to shift to the City, such as the replacement of conduits. He was confident the City is not assuming any responsibilities of utilities that are under the OUA's responsibility. There was not an update offered regarding when the OUA's work agreement was or is being approved. Based on action taken on the previous item, discussed the necessity to approve this item. Following discussion, Council noted this resolution and agreement are a different as the Schedule of items coordinate with those listed in the Cost to Cure (approved September 17, 2013), and not approving this could be put them in jeopardy. VOTE KIRK - YEA WATFORD - YEA MAXWELL • YEA Mims - YEA O'CONNOR - YEA MOTION CARRIED. RESOLUTION NO. 2013 -07 A RESOLUTION OF THE CITY OF OKEECHOBEE, FLORIDA, APPROVING A UTILITY WORK AGREEMENT WITH THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, FOR IMPROVEMENTS ALONG STATE ROAD 70; AUTHORIZING THE PUBLIC WORKS DIRECTOR TO EXECUTE AGREEMENT; DIRECTING THE CITY CLERK TO PROVIDE CERTIFIED COPIES; PROVIDING FOR CONFLICT; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the State of Florida Department of Transportation, hereinafter referred to as FDOT, proposes to construct or reconstruct a transportation facility identified as Project ID No. 425846- 1- 52 -01, State Road 70, from NW /SW 4th Avenue to NE /SE 3`d Avenue, hereinafter referred to as the Project; and WHEREAS, in order for the FDOT to proceed with the Project, it is necessary for the City of Okeechobee, hereinafter referred to as the Utility Authority Owner (UAO), to execute and deliver to the FDOT the agreement, as identified as Utility Work By Highway Contractor Agreement, hereinafter referred to as the Agreement. NOW, THEREFORE, be it resolved before the City Council for the City of Okeechobee, Florida; presented at a duly advertised public meeting; and passed by majority vote of the City Council; and properly executed by the Mayor or designee, as Chief Presiding Officer for the City: SECTION 1. That David Allen, Public Works Director for the City of Okeechobee is hereby authorized and directed to execute and deliver the Agreement to the FDOT. SECTION 2. The City Clerk is directed to forward a certified copy of this Resolution, along with the executed Agreement to the FDOT. SECTION 3. All resolutions or parts of resolutions in conflict herewith are hereby repealed. SECTION 4. If any section, subsection, sentence, clause, phrase or portion of this Resolution, or application hereof, is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion or provision and such holding shall not affect the validity of the remaining portions or applications here. SECTION 5. This resolution shall become effective immediately upon its adoption. INTRODUCED in regular session this 17th day of September, 2013, and ADOPTED after postponing until this 1st day of October, 2013. ATTEST: James E. Kirk, Mayor Lane Gamiotea, CMC, City Clerk REVIEWED FOR LEGAL SUFFICIENCY: John R. Cook, City Attorney Resolution No. 2013 -07 Page 1 of 1 c k cL h ouv- Exhibit 2 V Oct 1, 2013 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710.010-55 UTILITIES 10104 Page 1 of 9 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): CITY OF OKEECHOBEE 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 OKEECHOBEE, hereinafter referred to as the "UAO "; WITNESSETH: WHEREAS, the UAO owns or desires to install certain utility facilities which are located on the public road or publicly owned rail corridor identified below, hereinafter referred to as the "Facilities" (said term shall be deemed to include utility facilities as the same may be relocated, adjusted, or placed out of service); and WHEREAS, the FDOT, is currently engaging in a project which involves constructing, reconstructing, or otherwise changing a public road and other improvements located on a public road or publicly owned rail corridor identified as SR 70 from NW /SW 4th Ave to NE /SE 3rd Ave, State Road No.70, hereinafter referred to as the "Project "; 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, under the law of the State of Florida, the Utility Work must be performed at the sole cost and expense of the UAO; and WHEREAS, the FDOT and the UAO desire to enter into an agreement which establishes the terms and conditions applicable to 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. Performance of Utility Work a. The UAO shall perform the Utility Work in accordance with the utility relocation schedule attached hereto as Exhibit A and by this reference made a part hereof (the Schedule) and the plans and specifications for the Utility Work which have been previously approved by the FDOT (the Plans), said Plans being incorporated herein and made a part hereof by this reference. If the Schedule and the Plans have not been prepared as of the date of the execution of this Agreement, then the Utility Work shall be performed in accordance with the Plans, and the Schedule that are hereafter prepared in compliance with the notice previously sent to the UAO which established the terms and conditions under which those documents are to be prepared. The FDOT's approval of the Plans shall not be deemed to be STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710.010 -55 UTILITIES 10/04 Page 2 of 9 engineering judgment and the UAO shall at all times remain responsible for any errors or omissions in the Plans. The Utility Work shall include all Facilities located on the Project and neither the failure of the UAO to include all of the Facilities in the Schedule, nor the Plans, nor the failure of the FDOT to identify this omission during its review of the Plans shall relieve the UAO of the obligation to make those Facilities part of the Utility Work. Time shall be of the essence in complying with the total time shown by the Schedule for the Utility Work as well as any and all interim time frames specified therein. The Utility Work shall be performed in a manner and using such methods so as to not cause a delay to the FDOT or its contractors in the prosecution of the Project. 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 or the Schedule (including location of the Facilities and the proper inclusion of all Facilities as part of the Utility Work as stated above); failure to perform the Utility Work in accordance with the Plans and Schedule; or failure of the UAO to comply with any other obligation under this Agreement or under the law. b. All Utility Work shall be performed by UAO's own forces or its contractor at the UAO's sole cost and expense. The UAO shall be responsible for obtaining any and all permits that may be necessary to perform the Utility Work. The FDOT's Engineer (as that term is defined by the FDOT's Standard Specifications for Road and Bridge Construction) 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 and Schedule as the FDOT's engineer shall determine are necessary for the prosecution of the Project and shall stop work or modify work upon order of the FDOT's engineer as determined by the FDOT's engineer to be necessary for public health, safety or welfare. 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 1 a. c. After the FDOT has received a proper Schedule and Plans, the FDOT will issue a notice to the UAO which authorizes the Utility Work to proceed. The UAO shall notify the appropriate FDOT office in writing prior to beginning the Utility Work and when the UAO stops, resumes, or completes the Utility Work. The Utility Work shall be performed under the conditions of, and 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 pending (Note: Intent of this line is to allow either attachment of or separate reference to the permit). 2. Claims Against UAO a. 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, in accordance with the FDOT's procedure, 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. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710-010-55 UTILITIES 10/04 Page 3 of 9 b. 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. 3. Out of Service Facilities No Facilities shall be left in place on FDOT's Right of Way after the Facilities are no longer active (hereinafter Placed out of service /Deactivated) unless specifically identified as such in the Plans. The following terms and conditions shall apply to Facilities Placed out of service /Deactivated, but only to said Facilities Placed out of service /Deactivated: a. The UAO acknowledges its present and continuing ownership of and responsibility for Facilities Placed out of service /Deactivated. b. The FOOT 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 3. 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 concerning the Facilities that are Placed out of service /Deactivated of the FOOT or other permittees using or seeking use of the right of way. e. The UAO shall remove the Facilities upon 30 days prior written request of the FOOT in the event that the FDOT determines that removal is necessary for FOOT 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. In the event that the Facilities that are Placed out of Service /Deactivated would not have qualified for reimbursement under this Agreement, 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. In the event that the Facilities that are Placed out of STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710-010-55 UTILITIES 10104 Page 4 of 9 Service /Deactivated would have qualified for reimbursement only under Section 337.403 (1)(a), Florida Statutes, 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 because such a removal would be considered to be a separate future relocation not necessitated by the construction of the project pursuant to which they were Placed out of service /Deactivated, and would therefore not be eligible and approved for reimbursement by the Federal Government. In the event that the Facilities that are Placed out of service /Deactivated would have qualified for reimbursement for other reasons, removal of the out of service Facilities shall be reimbursed by the FDOT as though the Facilities had not been Placed out of service /Deactivated. 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 the Facilities or the discharge of hazardous substances or materials 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. 4. 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 60 days from written notice thereof from the FDOT. (2) Pursue a claim for damages suffered by the FDOT. (3) 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 60 days from written notice thereof from the FDOT until such time as the breach is cured. (4) Pursue any other remedies legally available. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 -010 -55 UTILITIES 10104 Page 5 of 9 (5) 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 60 days from written notice thereof from the UAO. (2) 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 and from any statutory obligations that either party may have with regard to the subject matter hereof. 5. 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; 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, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) T10- 010.55 UTILITIES 10/04 Page 6 of 9 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 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. 6. 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. 7. Miscellaneous a. The Facilities shall at all times remain the property of and be properly protected and maintained by the UAO in accordance with the then current Utility Accommodation Manual and the current utility permit for the Facilities. b. Pursuant to Section 287.058, Florida Statutes, 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. c. 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 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710 -010-55 UTILITIES 10104 Page 7 of 9 procedures which shall be applicable at the time of the Project and the relocation of the Facilities and except that the UAO and the FDOT may have entered into joint agreements for Utility Work to be performed by FDOT's highway contractor. To the extent that such a joint agreement exists, this Agreement shall not apply to Facilities covered by the joint agreement. Copies of FDOT manuals, policies, and procedures will be provided to the UAO upon request. d. 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 provisions hereof. e. Time is of the essence in the performance of all obligations under this Agreement. 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: David Allen, Public Works Director City of Okeechobee 55 SE 3rd Avenue Okeechobee, FL 34974 If to the FDOT: FDOT District 1 Utilities Administrator P.O. Box 1249 Bartow, FL 33831 - 1249 8. 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." STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) You MUST signify by selecting or checking which of the following applies: 710 -010-55 UTILITIES 10104 Page 8 of 9 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 OKEECHOBEE BY: (Signature) DATE: (Typed Name: David Allen (Typed Title: Public Works Director 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: (Typed Name: Chris Smith ) (Typed Title: Director of Transportation Development ) FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: N/A (Typed Title: NIA STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) ) ) 710-010-55 UTILITIES 10104 Page 9 of 9 Rule 14-06 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 710 -010 -05 UTILITIES 12109 Page 1 of 3 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 11 District Document No: 1 Utility Agency /Owner (UAO): City of Okeechobee A. Summary of Utility Work And Execution Estimated Time (calendar days) Total Time Prior To FDOT Project Construction 5 _ /Owner (UAO) to transmit to the Florida Department of Transportation location, relocation, adjustment, installation, and /or protection of their preliminary construction plans dated August 1. 2013 . Any Total Time During FDOT Project Construction 4 This document has been developed as the method for a Utility Agency (FDOT), the FDOTs Contractor, and other right -of -way users, the facilities, on this FDOT project. The following data is based on FDOT deviation by the FDOT or its contractor from the plans, as provided, FDOT of such change, this utility may require additional days for assessment responsible for events beyond the control of the UAO that could not by the UAO with the exercise of due diligence at the time of the occurrence. starting, stopping, resuming, or completing work. UAO Project Representative: David Allen may render this work schedule null and void. Upon notification by and negotiation of a new work schedule. This UAO is not reasonably be anticipated by the UAO and which could not be avoided The UAO agrees to notify the Department in writing prior to Telephone Number: 863 - 763 -3372 x 225 UAO Field Representative: Donnie Robertson Telephone Number: 863 - 763 -3372 x 213 This document is a printout of an FDOT form maintained in an additions, deletions or substitutions are reflected only in an Appendix text of the document itself. Hand notations on affected portions Appendix but are for reference purposes only and do not change the represents that no change has been made to the text of this document Document ". You MUST signify by selecting or checking which of the following applies: electronic format and all revisions thereto by the UAO in the form of entitled "Changes to Form Document" and no change is made in the of this document may refer to changes reflected in the above -named terms of the document. By signing this document, the UAO hereby except through the terms of the appendix entitled "Changes to Form _ Number of Attachment Pages. of Record (EOR): Acceptance by District Utilities: No changes to forms document. • Appendix "Changes to Forms Document" is attached. Aft t�orr ed Utility Agent: "Engineer t (Signature) (Signature) (Signature) David Allen Erik Leschak, PE Shirley McCrary (Printed Name) (Printed Name) (Printed Name) Director of Public Works Engineer of Record District Utilities Administrator (Title) (Title) (Title) (Date) (Date) • (Date) ("When requested by the District, the EOR will attest to compatibility of plans, specifications and Utility Work Schedule) STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 710 -010-03 UTILITIES 12109 Page 2 of 3 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): City of Okeechobee ____ ____ B. Special Conditions / Constraints The City maintains an irrigation system within the park area that will be cut and capped prior to construction. The City maintains some electrical outlets within the park area that will be removed prior to construction. There Is a buried Emergency Traffic Signal Communications cable within a 2" conduifthat runs under the existing sidewalk along the southeast quadrant of the intersection of SR 70 and US 441, between US 441 and SE 3'd Ave. The City of Okeechobee will place new FOC within the proposed conduit to be placed by the contractor. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 710.010.05 UTILITIES 121D9 Page 3 of 3 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO); City of Okeechobee C. Disposition of Facilities (List All Existing & Proposed) on Project UTILITY FACILITIES BY STATUS! TYPE /SIZE /MATERIAL/OFFSET TO BASELINE FROM STA TO STA DESCRIPTION OF UTILITY WORK DEPENDENT ACTIVITIES M.O.T. PHASE NUMBER CONSECUTIVE CALENDAR DAYS STA 47 +20, 75' RT to STA 55 +78, 75' RT — 4" PVC WM STA 48 +39, 75' RT to 55' RT, to STA 50 +04, 55' RT, then exiting RNV — 2" PVC WM STA 50+04 55' RT to STA 50+76, 55' RT, then exiting RNV — 2" PVC WM STA 52 +07, 60' RT to 58' RT, to STA 54 +48, 58' RT, then exiting R/W — 2" PVC WM STA 55 +78, 60' RT to 57' RT, to STA 58 +16, 57' RT, then exiting R/W — 2" PVC WM STA 60 +60, 46' RT to 62 +30, 46' RT — 2" PVC WM STA 60 +72, 48' RT —12" galv. storm pipe enters into R/W from south and ties into FDOT drainage BE Emergency Traffic cable within 2" conduit 58 +33, 60' Lt. on the NW corner (proposed cabinet) crossing SR 70 from to 58 +20, 60' Rt. to 58 +39, 87' Rt, then cross US 441 to 59+59, 84' Rt. to 66+16, 53' Rt. on the SE corner of SE 3rd Avenue. BE Emergency Traffic FOC STA 58 +35, 57' RT to STA 66 +15, 47' RT STA 62 +45, 8" San crossing SR 70 To remain To be removed To be removed To be removed To be removed To be removed To remain Proposed — to be placed within the 2" conduit that will be constructed by FDOT's contractor To be removed To remain None None None None None None None Prior to drainage replacement; ties into temporary traffic signal Placement & activation of new traffic cable None N/A Prior to Const Prior to Const Prior to Const Prior to Const Prior to Const N/A 1 1 N/A 0 1 1 1 1 1 0 2 2 0 Fak 1 c SEPTEMBER 17, 2013 - REGULAR MEETING & FINAL BUDGET PUBLIC HEARING- PAGE 4 OF 12 139 AGENDA COUNCIL ACTION - DISCUSSION -VOTE VIII. NEW BUSINESS CONTINUED. A. Motion to adopt proposed Resolution No. 2013 -06, releasing Easements for FDOT for Blocks G, L, E, R, and P of Flagler Parks, City of Okeechobee, Plat Book 1, Page 10, and authorizing the Mayor to execute a Quit Claim Deed for SR 70 Improvements Project continued. B. Motion to adopt proposed Resolution No. 2013-07, approving a Utility Agreement with FOOT for SR 70 and SR 15 Improvements Project, and authorizing Public Works Director, David Allen, to execute the agreement - City Attorney (Exhibit 2). The subject property is identified as: Parcel No. 100A - 5,097 square feet, a portion of Block G of Flagler Park; Parcel No. 100B - 7,650 square feet, a portion of Block L; Parcel No. 100C - 7,781 square feet, a portion of Block E; Parcel No. 1000 - 7,473 square feet, a portion of Block R; and Parcel No. 100E - 6,549 square feet, a portion of Block P, all located in Flagler Park, Okeechobee, a Subdivision in Sections 16 and 21, Township 37 South, Range 35 East, as per plat thereof recorded in Plat Book 5, Page 5, Public Records of Okeechobee County, Florida. A Revised Exhibit 1 was distributed prior to the start of the meeting. Administrator Whitehall requested to remove the amount ($48,000) for the consideration. This was approved at the September 3' meeting as a 'Cost to Cure." Council Member Maxwell led the discussion with concerns that it appears the final project being presented by FOOT is not as it was initially presented. Additionally, based on the most recent version of FDOT's five -year work plan, the funds budgeted for right -of -way acquisitions have increased, while the construction costs were decreased for this project. It was suggested the City may not be receiving their fair share in lieu of losing a part of the parks, and initial design items have been deleted or decreased. The issue with the Hamrick Trust reverter of title complexes the matter. Due to the concerns raised by Council Member Maxwell, Council agreed delaying approval two weeks would be in order to provide sufficient time for FDOT to respond to the questions and concerns. Council Member Williams moved to Dostpone the motion to adopt proposed Resolution No. 2013 -06 until the October 1.2013 meeting: seconded by Council Member Maxwell. VOTE KIRK • ABSENT WATFORD - YEA MAXWELL -YEA O'CONNOR -YEA WILLIAMS - YEA MOTION CARRIED. Council Member O'Connor moved to adopt proposed Resolution No. 2013 -07, approving a Utility Work Agreement with FDOT for the State Road 70 Improvements Project, and authorizing Public Works Director, David Allen, to execute the agreement; seconded by Council Member Williams. Attorney Cook read proposed Resolution No. 2013 -07 by title only as follows: "A RESOLUTION OF THE CITY OF OKEECHOBEE, FLORIDA, APPROVING A UTILITY WORK AGREEMENT WITH THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, FOR IMPROVEMENTS ALONG STATE ROAD 70; AUTHORIZING THE PUBLIC WORKS DIRECTOR TO EXECUTE AGREEMENT; DIRECTING THE CITY CLERK TO PROVIDE CERTIFIED COPIES; PROVIDING FOR CONFLICT; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE." !40 SEPTEMBER 17, 2013 - REGULAR MEETING & FINAL BUDGET PUBLIC HEARING- PAGE 5 OF 12 AGENDA COUNCIL ACTION - DISCUSSION -VOTE VIII. NEW BUSINESS CONTINUED. B. Motion to adopt proposed Resolution No. 2013 -07, approving a Utility Agreement with FDOT for SR 70 Improvements Project, and authorizing Public Works Director, David Allen, to execute the agreement continued. C. Motion to adopt proposed Resolution No. 2013 -08 for items to be supported in the 2014 Legislative Session - City Attorney (Exhibit 3). According to the Work Schedule attached to the Utility Work Agreement, this is for specific items that the City is responsible for within the State Road 70 Improvements Project area. However, there were concerns raised that due to the water and wastewater lines within the project area, the City should not execute this until the Okeechobee Utility Authority (QUA) has approved their agreement to be certain the City is not held responsible for any utility lines or other items that would be under the OUA's authority, and vice versa. Council Member Maxwell asked whether the OUA was sent a similar agreement, and whether they had approved it. Administrator Whitehall responded that FDOT was in contact with them, but he did not know the status of their agreement. The Council requested Staff verify the language and when the OUA's Utility Work Agreement will be approved. Council Member Maxwell moved to postpone the motion to adopt proposed Resolution No. 2013 -07 until the October 1, 2013 meeting; seconded by Council Member O'Connor. VOTE KIRK - ABSENT MAXWELL• YEA O'CONNOR -YEA WATFORD • YEA WILLIAMS • YEA MOTION CARRIED. Council Member Williams moved to adopt proposed Resolution No. 2013-08 for items to be supported in the 2014 Legislative Session; seconded by Council Member O'Connor. Attorney Cook read proposed Resolution No. 2013-08 by title only as follows: "A RESOLUTION OF THE CITY OF OKEECHOBEE, FLORIDA, AUTHORIZING AND REQUESTING THAT ISSUES DENOTED HEREIN BE PRESENTED TO THE OKEECHOBEE COUNTY LEGISLATIVE DELEGATION FOR SUPPORT DURING THE 2014 LEGISLATIVE SESSION; PROVIDING FOR CONFLICT; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE." Items listed for support are: FDOT funding of Planned, Designed and Projects underway; Okeechobee Battlefield Park funding; Okeechobee County and Okeechobee Utility Authority Issues; Storrnwater conveyance funding. Do not support any effort to further dismantle or remove the City's, such as: revenue stream in collection of Business Tax Receipts (business licences); local governments control over imposition of property tax policy; or revenue potential through legislation revising the Communication Service Tax. There was a brief discussion. VOTE KIRK• ABSENT MAXWELL - YEA O'CONNOR•YEA WATFORD - YEA WILLIAMS - YEA MOTION CARRIED. RESOLUTION NO. 2013 -07 Exhibit 2 Sept 17, 2013 A RESOLUTION OF THE CITY OF OKEECHOBEE, FLORIDA, APPROVING A UTILITY WORK AGREEMENT WITH THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, FOR IMPROVEMENTS ALONG STATE ROAD 70; AUTHORIZING THE PUBLIC WORKS DIRECTOR TO EXECUTE AGREEMENT; DIRECTING THE CITY CLERK TO PROVIDE CERTIFIED COPIES; PROVIDING FOR CONFLICT; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the State of Florida Department of Transportation, hereinafter referred to as FDOT, proposes to construct or reconstruct a transportation facility identified as Project ID No. 425846- 1- 52 -01, State Road 70, from NW /SW 4th Avenue to f4F/SE 3d Avenue, hereinafter referred to as the Project; and WHEREAS, in order for the FDOT to proceed with the Project, it is necessary for the City of Okeechobee, hereinafter referred to as the Utility Authority Owner (UAO), to execute and deliver to the FDOT the agreement, as identified as Utility Work By Highway Contractor Agreement, hereinafter referred to as the Agreement. NOW, THEREFORE, be it resolved before the City Council for the City of Okeechobee, Florida; presented at a duly advertised public meeting; and passed by majority vote of the City Council; and properly executed by the Mayor or designee, as Chief Presiding Officer for the City: SECTION 1. That David Allen, Public Works Director for the City of Okeechobee is hereby authorized and directed to execute and deliver the Agreement to the FDOT. SECTION 2. The City Clerk is directed to forward a certified copy of this Resolution, along with the executed Agreement to the FDOT. SECTION 3. All resolutions or parts of resolutions in conflict herewith are hereby repealed. SECTION 4. If any section, subsection, sentence, clause, phrase or portion of this Resolution, or application hereof, is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion or provision and such holding shall not affect the validity of the remaining portions or applications here. SECTION 5. This resolution shall become effective immediately upon its adoption. INTRODUCED AND ADOPTED in regular session this 17" day of September, 2013. ATTEST: James E. Kirk, Mayor Lane Gamiotea, CMC, City.plerk• REVIEWED FOR LEGAL SUFFICIENCY: John R. Cook, City Attorney Resolution No. 2013 -07 Page 1 of 1 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710-010-55 UTILITIES 10104 Page 1 of 9 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): CITY OF OKEECHOBEE 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 OKEECHOBEE, hereinafter referred to as the "UAO "; WITNESSETH: WHEREAS, the UAO owns or desires to install certain utility facilities which are located on the public road or publicly owned rail corridor identified below, hereinafter referred to as the "Facilities" (said term shall be deemed to include utility facilities as the same may be relocated, adjusted, or placed out of service); and WHEREAS, the FDOT, is currently engaging in a project which involves constructing, reconstructing, or otherwise changing a public road and other improvements located on a public road or publicly owned rail corridor identified as SR 70 from NW /SW 4th Ave to NE/SE 3rd Ave, State Road No.70, hereinafter referred to as the "Project"; 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, under the law of the State of Florida, the Utility Work must be performed at the sole cost and expense of the UAO; and WHEREAS, the FDOT and the UAO desire to enter into an agreement which establishes the terms and conditions applicable to 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. Performance of Utility Work a. The UAO shall perform the Utility Work in accordance with the utility relocation schedule attached hereto as Exhibit A and by this reference made a part hereof (the Schedule) and the plans and specifications for the Utility Work which have been previously approved by the FDOT (the Plans), said Plans being incorporated herein and made a part hereof by this reference. If the Schedule and the Plans have not been prepared as of the date of the execution of this Agreement, then the Utility Work shall be performed in accordance with the Plans, and the Schedule that are hereafter prepared in compliance with the notice previously sent to the UAO which established the terms and conditions under which those documents are to be prepared. The FDOT's approval of the Plans shall not be deemed to be STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710-010-55 UTILITIES 10/04 Page 2ofS engineering judgment and the UAO shall at all times remain responsible for any errors or omissions in the Plans. The Utility Work shall include all Facilities located on the Project and neither the failure of the UAO to include all of the Facilities in the Schedule, nor the Plans, nor the failure of the FDOT to identify this omission during its review of the Plans shall relieve the UAO of the obligation to make those Facilities part of the Utility Work. Time shall be of the essence in complying with the total time shown by the Schedule for the Utility Work as well as any and all interim time frames specified therein. The Utility Work shall be performed in a manner and using such methods so as to not cause a delay to the FDOT or its contractors in the prosecution of the Project. 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 or the Schedule (including location of the Facilities and the proper inclusion of all Facilities as part of the Utility Work as stated above); failure to perform the Utility Work in accordance with the Plans and Schedule; or failure of the UAO to comply with any other obligation under this Agreement or under the law. b. All Utility Work shall be performed by UAO's own forces or its contractor at the UAO's sole cost and expense. The UAO shall be responsible for obtaining any and all permits that may be necessary to perform the Utility Work. The FDOT's Engineer (as that term is defined by the FDOT's Standard Specifications for Road and Bridge Construction) 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 and Schedule as the FDOT's engineer shall determine are necessary for the prosecution of the Project and shall stop work or modify work upon order of the FDOT's engineer as determined by the FDOT's engineer to be necessary for public health, safety or welfare. 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 1 a. c. After the FDOT has received a proper Schedule and Plans, the FDOT will issue a notice to the UAO which authorizes the Utility Work to proceed. The UAO shall notify the appropriate FDOT office in writing prior to beginning the Utility Work and when the UAO stops, resumes, or completes the Utility Work. The Utility Work shall be performed under the conditions of, and 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 pending (Note: Intent of this line is to allow either attachment of or separate reference to the permit). 2. Claims Against UAO a. 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, in accordance with the FDOT's procedure, 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. 1 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710-01055 UTILITIES 10/04 Page 3 o19 b. 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. 3. Out of Service Facilities No Facilities shall be left in place on FDOT's Right of Way after the Facilities are no longer active (hereinafter Placed out of service /Deactivated) unless specifically identified as such in the Plans. The following terms and conditions shall apply to Facilities Placed out of service /Deactivated, but only to said Facilities Placed out of service /Deactivated: a. The UAO acknowledges its present and continuing ownership of and responsibility for Facilities Placed out of service /Deactivated. 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 3. 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 concerning the Facilities that are Placed out of service /Deactivated of the FOOT or other permittees using or seeking use of the right of way. e. The UAO shall remove the Facilities upon 30 days prior written 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 FOOT determines that use of the right of way is needed for other active utilities that cannot be otherwise accommodated in the right of way. In the event that the Facilities that are Placed out of Service /Deactivated would not have qualified for reimbursement under this Agreement, 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. In the event that the Facilities that are Placed out of STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710-010-55 UTILITIES 10/04 Page 4 of 9 Service /Deactivated would have qualified for reimbursement only under Section 337.403 (1)(a), Florida Statutes, 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 because such a removal would be considered to be a separate future relocation not necessitated by the construction of the project pursuant to which they were Placed out of service /Deactivated, and would therefore not be eligible and approved for reimbursement by the Federal Government. In the event that the Facilities that are Placed out of service /Deactivated would have qualified for reimbursement for other reasons, removal of the out of service Facilities shall be reimbursed by the FDOT as though the Facilities had not been Placed out of service /Deactivated. 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 the Facilities or the discharge of hazardous substances or materials 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. 4. 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 60 days from written notice thereof from the FDOT. (2) Pursue a claim for damages suffered by the FDOT. (3) 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 60 days from written notice thereof from the FDOT until such time as the breach is cured. (4) Pursue any other remedies legally available. A STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710-010 -55 UTILITIES 10104 Page 5 of 9 (5) 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 60 days from written notice thereof from the UAO. (2) 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 and from any statutory obligations that either party may have with regard to the subject matter hereof. 5. 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; 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, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710-010-55 UTILITIES 10/04 Page 5 of 9 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 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 FOOT. The FDOT's delay in notifying the UAO of a claim shall not release UAO of the above duty to defend. 6. 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. 7. Miscellaneous a. The Facilities shall at all times remain the property of and be properly protected and maintained by the UAO in accordance with the then current Utility Accommodation Manual and the current utility permit for the Facilities. b.. Pursuant to Section 287.058, Florida Statutes, 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. c. 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 FOOT has manuals and written policies and 1 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) 710.01055 UTILITIES 10104 Page 7 of 9 procedures which shall be applicable at the time of the Project and the relocation of the Facilities and except that the UAO and the FDOT may have entered into joint agreements for Utility Work to be performed by FDOT's highway contractor. To the extent that such a joint agreement exists, this Agreement shall not apply to Facilities covered by the joint agreement. Copies of FDOT manuals, policies, and procedures will be provided to the UAO upon request. d. 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 provisions hereof. e. Time is of the essence in the performance of all obligations under this Agreement. 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: David Allen, Public Works Director City of Okeechobee 55 SE 3rd Avenue Okeechobee, FL 34974 If to the FDOT: FDOT District 1 Utilities Administrator P.O. Box 1249 Bartow, FL 33831 - 1249 8. 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." STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) You MUST signify by selecting or checking which of the following applies: 710-010-55 UTILITIES 10/04 Page 8 0( 9 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 OKEECHOBEE BY: (Signature) DATE: (Typed Name: David Allen (Typed Title: Public Works Director ) ) 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: (Typed Name: Chris Smith ) (Typed Title: Director of Transportation Development ) FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: NIA (Typed Title: N/A STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK AGREEMENT (at UAO's Sole Expense) ) ) 710-010-55 UTILITIES 10/04 Page 9 of 9 Rule 14 -46 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 710 -010 -05 UTILITIES 12/09 Page 1 of 3 Financial Project ID: 425846- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): City of Okeechobee A. Summary of Utility Work And Execution Estimated Time (calendar days) Total Time Prior To FDOT Project Construction 5 _ /Owner (UAO) to transmit to the Florida Department of Transportation location, relocation, adjustment, installation, and/or protection of their preliminary construction plans dated August 1. 2013 Any Total Time During FOOT Project Construction 4 This document has been developed as the method for a Utility Agency (FOOT), the FDOTs Contractor, and other right-of-way users, the facilities, on this FDOT project. The following data is based on FOOT deviation by the FDOT or its contractor from the plans, as provided, FOOT of such change, this utility may require additional days for assessment responsible for events beyond the control of the UAO that could not by the UAO with the exercise of due diligence at the time of the occurrence. starting, stopping, resuming, or completing work. UAO Project Representative: David Allen may render this work schedule null and void. Upon notification by and negotiation of a new work schedule. This UAO is not reasonably be anticipated by the UAO and which could not be avoided The UAO agrees to notify the Department in writing prior to Telephone Number. 863- 763 -3372 x 225 UAO Field Representative: Donnie Robertson Telephone Number. 863 -763 -3372 x 213 This document is a printout of an FDOT form maintained in an electronic additions, deletions or substitutions are reflected only in an Appendix text of the document itself. Hand notations on affected portions Appendix but are for reference purposes only and do not change the represents that no change has been made to the text of this document Document ". You MUST signify by selecting or checking which of the following applies: format and all revisions thereto by the UAO in the form of entitled "Changes to Form Document" and no change is made in the of this document may refer to changes reflected in the above -named terms of the document. By signing this document, the UAO hereby except through the terms of the appendix entitled "Changes to Form Number of Attachment Pages. Record (EOR): Acceptance by District Utilities: 0 No changes to forms document. • Appendix "Changes to Forms Document" is attached. MIR?! Agent: * *Engineer of ` y-2.....------- )(Signature) l (Signature) (Signature) David Allen Erik Leschak, PE Shirley McCrary (Printed Name) (Printed Name) (Printed Name) Director of Public Works Engineer of Record District Utilities Administrator (Title) (Title) (Title) (Date) (Date) (Date) (* "When requested by the District, the EOR will attest to compatibility of plans, specifications and Utility Work Schedule) STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 71001045 MOTES 17107 Pioe 2 DIE Financial Project ID: 425848- 1 -52 -01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): City of Okeechobee 8, Special Conditions f Constraints The City maintains an Irrigation system within the park area that will be cut and capped prior to construction. The City maintains some electrical outlets within the park area that will be removed prior to construction. There is a buried Emergency Traffic Signal Communications cable within a 2" conduit that runs under the existing sidewalk along the southeast quadrant of the intersection of SR 70 and US 441, between US 441 and SE 3r° Ave. The City of Okeechobee will place new FOC within the proposed conduit to be placed by the contractor. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITY WORK SCHEDULE 710-010.05 UTILITIES 12/09 Page 3 of 3 Financial Project ID: 425846-1-52-01 Federal Project ID: N/A County: Okeechobee State Road No.: 70 District Document No: 1 Utility Agency /Owner (UAO): City of Okeechobee C. Disposition of Facilities (List All Existing & Proposed) on Project UTILITY FACILITIES BY STATUS/ TYPE/SIZE/MATERIAL/OFFSET TO BASELINE FROM STA TO STA DESCRIPTION OF UTILITY WORK DEPENDENT ACTIVITIES M.O.T. PHASE NUMBER CONSECUTIVE CALENDAR DAYS STA 47 +20, 75' RT to STA 55 +78, 75' RT -4" PVC WM STA 48 +39, 75' RT to 55' RT, to STA 50 +04, 55' RT, then exiting RPM — 2" PVC WM STA 50 +04 55' RT to STA 50 +76, 55' RT, then exiting RIM — 2" PVC WM STA 52 +07, 60' RT to 58' RT, to STA 54 +48, 58' RT, then exiting RAW — 2" PVC WM STA 55 +78, 60' RT to 57' RT, to STA 58 +16, 57' RT, then exiting R/W — 2" PVC WM STA 60 +60, 46' RT to 62 +30, 46' RT — 2" PVC WM STA 60 +72, 48' RT —12" galv. storm pipe enters into RIW from south and ties into FDOT drainage BE Emergency Traffic cable within 2" conduit 58 +33, 60' Lt. on the NW corner (proposed cabinet) crossing SR 70 from to 58 +20, 60' Rt. to 58 +39, 87' Rt, then cross US 441 to 59 +59, 84' Rt. to 66 +16, 53' Rt. on the SE corner of SE 3rd Avenue. BE Emergency Traffic FOC STA 58 +35, 57' RT to STA 66+15, 47' RT STA 62 +45, 8" San crossing SR 70 To remain To be removed To be removed To be removed To be removed To be removed To remain Proposed — to be placed within the 2" conduit that will be constructed by FDOT's contractor To be removed To remain None None None None None None None Prior to drainage replacement; ties into temporary traffic signal Placement & activation of new traffic cable None NIA Prior to Const Prior to Const Prior to Const Prior to Const Prior to Const N/A 1 1 N/A 0 1 1 1 1 1 0 2 2 0