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HomeMy WebLinkAboutR-2015-088 - Executed an Agreement with Broward County relating to Trafficway Illumination for Bryan Rd from Stirling Rd to Old Griffin Rd RESOLUTION 2015-088 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE AN AGREEMENT WITH BROWARD COUNTY, A COPY OF WHICH IS ATTACHED TO THIS RESOLUTION, RELATING TO TRAFFICWAY ILLUMINATION FOR BRYAN ROAD FROM STIRLING ROAD TO OLD GRIFFIN ROAD IN DANIA BEACH, FLORIDA; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH,FLORIDA: Section 1. That the City Commission authorizes the proper City officials to execute an Agreement with Broward County, a copy of which is attached as Exhibit"A", and it is made a part of and is incorporated into this Resolution by this reference, relating to trafficway illumination for Bryan Road from Stirling Road to Old Griffin Road in Dania Beach, Florida. Section 2. That the City Manager and the City Attorney are authorized to make minor revisions to the Trafficway Illumination Agreement as are deemed necessary and proper for the best interests of the City. Section 3. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 4. That this Resolution shall be in force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED on August 25, 2015. ATTEST: 04pwARD•S r A g� LOUISE STILSON, CMC LVINO SR. CITY CLERK AYOR A7'EEU 19�' APPROVED AS TO FO ND CORRECTNESS: THOM S J. SB O CITY ATTORNEY AGREEMENT Between BROWARD COUNTY and CITY OF DANIA BEACH for TRAFFICWAY ILLUMINATION FOR BRYAN ROAD This is an Agreement made and entered into by and between Broward County, a political subdivision of the State of Florida ("County"), and City of Dania Beach a municipal corporation located in Broward County, Florida, organized and existing under the laws of the State of Florida ("Municipality"), (collectively the "Parties"). WHEREAS, Bryan Road from Stirling Rd to Old Griffin Rd is a public trafficway("Trafficway"), classified as a County road and located within the municipal boundaries of Municipality; and WHEREAS, it is of mutual benefit to the residents of County and Municipality to illuminate the Trafficway by installing the lighting system as detailed in Article 2; and WHEREAS, Municipality has expressed its desire to undertake the installation of the lighting system and the continued operation and maintenance of the lighting system following completion of the illumination project; and WHEREAS, County has agreed to permit the illumination of the Trafficway, which is more particularly described in Exhibit "A," attached hereto and incorporated herein (the "Property"), subject to the terms and conditions of this Agreement; and WHEREAS, Municipality, on the day of , 20 , has approved this Agreement, and has authorized the appropriate officers of Municipality to execute this Agreement; Standard Form (Illumination by Municipality) (07-06-15) NOW,THEREFORE, In consideration of the mutual terms, conditions, promises, and covenants hereinafter set forth, County and Municipality agree as follows: ARTICLE 1. DEFINITIONS 1.1 Agreement: Articles 1 through 8, the exhibits and documents that are expressly incorporated herein by reference. 1.2 Approved Plans: The construction documents and specifications depicting and defining the Project, including but not limited to the materials to be installed within the Property, all as described in Exhibit "B,"attached hereto and incorporated herein. 1.3 Board:The Board of County Commissioners of Broward County, Florida. 1.4 Contract Administrator: The Director of the Broward County Highway Construction and Engineering Division, or designee. 1.5 County Administrator:The administrative head of County appointed by the Board. 1.6 County Attorney:The chief legal counsel for County appointed by the Board. 1.7 Division: The Broward County Highway Construction and Engineering Division. - y- 1.8 Illumination or Lightine or Lighting System: Light poles, luminaires, cable, conduit, grounding, load centers, pullboxes, conductors, and cable distribution systems. 1.9 Project: The illumination of the Property as described in Article 2 and the Approved Plans. 1.10 Property:That portion of the Trafficway as described in Exhibit "A." ARTICLE 2.SCOPE OF PARTICIPATION 2.1 Municipality shall: 2.1.1 Before execution of this Agreement, prepare, or cause to be prepared, the Approved Plans. The Approved Plans shall substantially conform to the Standard Specifications for Highway Lighting established by the Florida Department of Transportation, and shall be reviewed and approved by the Contract Administrator. Standard Form (Illumination by Municipality) -2- (07-06-15) 2.1.2 Apply to the Division for a permit, or cause application to be made for a permit, for the installation of the Lighting System as set forth in the Approved Plans. Municipality shall not proceed with installation of the Project until the Division permit(s) has/have been issued and permit conditions for commencement of construction have been satisfied. 2.1.3 In accordance with the Approved Plans, install or cause to be installed the Lighting System on the Property to the Contract Administrator's satisfaction. 2.1.4 Following completion of the Project, provide the County with signed and sealed certified as-built drawings and warranties for any work performed as set forth in the Approved Plans. 2.1.5 Properly operate and maintain the Lighting System of the Project in accordance with the Approved Plans. As part of such maintenance responsibility, Municipality shall keep the Lighting System in good repair and replace defective or worn out Lighting System parts and equipment which system parts and equipment shall include, but not be limited to, poles, luminaires, and circuitry. Municipality's responsibility to keep or cause to keep the system in good repair shall include all necessary maintenance, repair, and replacement of any type or nature, including, but not limited to, maintenance, repair, and replacement due to normal wear and tear, acts of God, vandalism, and accidents. 2.1.6 Not by its use cause damage to the Property. 2.1.7 Provide the County, or its agent, with prompt written notice as set forth in Article 5 of any occurrence, incident, or accident occurring on the Property. 2.2 County, by and through the Contract Administrator, shall: 2.2.1 Upon receipt from Municipality of a completed application for permit and the Approved Plans, review the application for completeness and either reject the application or process the application for issuance of the permit. 2.2.2. Inspect the Project generally, and the installation of the Lighting System specifically, and reject work which does not meet the requirements of the Approved Plans. 2.2.3 After receiving signed and sealed certified as-built drawings, detailing: the pertinent information regarding the installation and that the installation is in conformance with the Approved Plans, and a request for a final inspection, perform a final inspection. Standard Form (Illumination by Municipality) -3- (07-06-15) 2.2.4 Upon receipt of all paperwork and completion of all inspections, notify Municipality as to the status of the Project. 2.2.5 Have no further obligation except as otherwise specifically set forth herein. 2.3 Any relocation, replacement, modification, changes, or alteration of the Lighting System by Municipality shall require the prior submittal of plans by Municipality to the Division and approval by the Contract Administrator, consistent with the requirements above. 2.4 All Lighting placed upon the Property shall remain the property of Municipality, and shall be placed upon the Property at Municipality's risk. 2.5 This Agreement does not change the County road functional classification of the Trafficway. 2.6 Municipality's obligations under this Agreement may be performed by Municipality through the use of its employees, or Municipality may enter into a contract with a third party to perform the services. If Municipality contracts with a third party, Municipality shall remain fully responsible hereunder and shall ensure that the third party complies at all times with each and every term, condition, duty, and obligation set forth herein. 2.7 In the administration of this Agreement, as contrasted with matters of policy, Municipality may rely on the instructions or determinations made by the Contract Administrator, provided, however, that such instructions and determinations do not change the �requitements of this Article 2. ARTICLE 3. COSTS Municipality shall pay for all costs associated with the design, installation, and continued operation, maintenance, repair, and replacement of the Lighting System, including all electrical energy and other utility charges. ARTICLE 4.TERM AND TERMINATION 4.1 This Agreement starts on the date it is fully executed by the Parties and continues in perpetuity unless terminated as provided below. 4.2 This Agreement may be terminated for cause by County, through action of the Board, upon thirty(30) days' written notice given by the Contract Administrator to Municipality setting forth the breach. If Municipality corrects the breach within thirty(30) days after written notice, to the Contract Administrator's satisfaction,this Agreement shall remain in full force and effect. If such breach is not corrected within thirty (30) days after written notice, County may terminate this Agreement. Specifically, if Municipality fails to maintain the Lighting System, Standard Form (Illumination by Municipality) -4- (07-06-15) County, at the option of the Contract Administrator, may cause such breach to be corrected and invoice Municipality for the costs of the correction or terminate this Agreement. If County opts to correct the breach and invoice Municipality for the costs of correction, Municipality shall remit to County the amount invoiced within thirty(30) days of Municipality's receipt of the invoice. 4.3 Cause to terminate this Agreement includes, but is not limited to, Municipality's failure to suitably perform the services required by Article 2, or Municipality's failure to maintain the Lighting System, notwithstanding whether any such breach was previously waived or cured. 4.4 If this Agreement is terminated, Municipality shall remove from the Property, at Municipality's sole expense, any Lighting System placed upon it unless the Contract Administrator, in writing, authorizes Municipality to leave the Lighting System on the Property. If the Lighting System must be removed: 4.4.1 County shall have no obligation to remove, relocate, reinstall, or replace any of the Lighting System, or in any way compensate Municipality for any loss resulting from or arising out of the termination of this Agreement. 4.4.2 Municipality shall obtain a Division permit and return the Property to a safe condition following removal of the Lighting System. 4.4.3 Municipality shall be obligated to repair or pay for any damage to County property resulting from the removal of the Lighting System. ARTICLE S. NOTICES Whenever either party desires to give notice to the other, such notice must be in writing, sent by certified United States Mail, postage prepaid, return receipt requested, or sent by commercial express carrier with acknowledgement of delivery, or by hand-delivery with a request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is intended at the place last specified. The place for giving notice shall remain the same as set forth herein until changed in writing in the manner provided in this article. For the present, the Parties designate the following: FOR COUNTY: Director, Broward County Highway Construction and Engineering Division One North University Drive, Suite 300-B Plantation, Florida 33324 Standard Form (Illumination by Municipality) -S- (07-06-15) FOR MUNICIPALITY: ARTICLE 6. INDEMNIFICATION 6.1 Municipality is an entity subject to Section 768.28, Florida Statutes, as may be amended from time to time, and agrees to be fully responsible for the acts and omissions of its agents or employees to the extent permitted by law. Nothing herein is intended to serve as a waiver of sovereign immunity by any party to which sovereign immunity may be applicable. Nothing herein shall be construed as consent by Municipality to be sued by third parties in any matter arising out of this Agreement or any other contract. 6.2 If Municipality contracts with a third party to provide the services set forth herein, any contract with such third party shall include the following provisions: 6.2.1 Indemnification: Municipality's contractor shall indemnify and hold harmless County, its officers, agents, and employees, from liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of Municipality's contractor and other persons employed or utilized by Municipality's contractor in the performance of this Agreement. These indemnifications shall survive the term of this Agreement. To the extent permitted by law, if any action or proceeding is brought against County by - reason of any such claim or demand, Municipality's contractor shall, upon written notice from County, resist and defend such action or proceeding by counsel satisfactory to County. 6.2.2 To the extent permitted by law, the indemnification provided above shall obligate Municipality's contractor to defend, at its own expense, to and through appellate, supplemental, or bankruptcy proceeding, or to provide for such defense, at County's option, any and all claims of liability and all suits and actions of every name and description covered by subsection 6.2.1 above which may be brought against County, whether services were performed by Municipality's contractor or persons employed or utilized by Municipality's contractor. 6.3 The provisions of this article shall survive the termination of this Agreement. ARTICLE 7. INSURANCE 7.1 Municipality shall provide the Contract Administrator with written verification of liability protection in accordance with state law prior to final execution of this Agreement. Additionally, if Municipality elects to purchase excess liability coverage, Municipality agrees that County will Standard Form (Illumination by Municipality) -6- (07-06-15) be furnished with a Certificate of Insurance listing "Broward County" as certificate holder and an additional insured. 7.2 If Municipality contracts with a third party to provide the services set forth herein, any contract with such third party shall include, at a minimum, the following provisions: 7.2.1 Insurance: Municipality's contractor shall keep and maintain, at the contractor's sole cost and expense, insurance of the types and minimum amounts as set forth on Exhibit "C," and specifically protect County by naming "Broward County" as an additional insured under the Commercial General Liability Insurance policy as well as any Excess Liability policy. 7.2.2 Municipality's contractor, upon request, shall furnish to the Contract Administrator, Certificates of Insurance and Endorsements evidencing the insurance coverage specified above prior to beginning the performance of work under this Agreement. 7.2.3 Coverage is not to cease and is to remain in full force and effect until all performance required of Municipality's contractor is completed. ARTICLE 8. MISCELLANEOUS 8.1 Documents. Copies of any and all reports, photographs, surveys, plans, and other data and documents provided or created in connection with this Agreement shall be provided to County at no cost. 8.2 Independent Contractor. Municipality is an independent contractor under this Agreement. In performing under this Agreement, neither Municipality nor its agents shall act as officers, employees, or agents of County. Municipality shall not have the right to bind County to any obligation not expressly undertaken by County under this Agreement. 8.3 Third Party Beneficiaries. Neither Municipality nor County intends to directly or substantially benefit a third party by this Agreement. Therefore, the Parties acknowledge that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a right or claim against either of them based upon this Agreement. 8.4 Assignment and Performance. Neither this Agreement nor any right or interest herein shall be assigned,transferred, or encumbered by Municipality without the prior written consent of County. If Municipality violates this provision, County shall have the right to immediately terminate this Agreement. Municipality represents that each person and entity that will perform services under this Agreement is duly qualified to perform such services by all appropriate governmental authorities, where required, and is sufficiently experienced and skilled in the area(s) for which such person or entity will render services. Municipality agrees Standard Form (Illumination by Municipality) -7- (07-06-15) that all services under this Agreement shall be performed in a skillful and respectful manner, and that the quality of all such services shall equal or exceed prevailing industry standards for the provision of such services. 8.5 Materiality And Waiver of Breach. Each requirement, duty, and obligation set forth herein was bargained for at arm's-length and is agreed to by the Parties. Each requirement, duty, and obligation set forth herein is substantial and important to the formation of this Agreement, and each is, therefore, a material term hereof. County's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 8.6 Compliance With Laws. Municipality shall comply with all applicable federal, state, and local laws, codes, ordinances, rules, and regulations in performing its duties, responsibilities, and obligations pursuant to this Agreement. 8.7 Severability. If a portion of this Agreement is found to be unenforceable by any court of competent jurisdiction, that part shall be deemed severed from this Agreement and the balance of this Agreement shall remain in full force and effect. 8.8 Joint Preparation. This Agreement has been jointly prepared by the Parties hereto, and shall not be construed more strictly against either Party. 8.9 Interpretation. The headings contained in this Agreemenrt aro#ar reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter," refer to this Agreement as a whole and not to any particular sentence, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section, unless the reference is made to a particular subsection or subparagraph of such Section or Article. 8.10 Priority of Provisions. If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto or referenced or incorporated herein and any provision of Articles 1 through 8 of this Agreement, the provisions contained in Articles 1 through 8 shall prevail and be given effect. 8.11 Law, Jurisdiction, Venue, Waiver Of Jury Trial. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the state of Florida. The Parties agree that the exclusive venue for litigation arising from, related to, or in connection with Standard Form (Illumination by Municipality) -8- (07-06-15) this Agreement shall be in the state courts of the Seventeenth Judicial Circuit in and for Broward County, Florida. If any claim arising from, related to, or in connection with this Agreement must be litigated in federal court, the Parties agree that the exclusive venue for such lawsuit shall be in the United States District Court or United States Bankruptcy Court for the Southern District of Florida. BY ENTERING INTO THIS AGREEMENT, MUNICIPALITY AND COUNTY HEREBY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO THIS AGREEMENT. IF A PARTY FAILS TO WITHDRAW A REQUEST FOR A JURY TRIAL IN A LAWSUIT ARISING OUT OF THIS AGREEMENT AFTER WRITTEN NOTICE BY THE OTHER PARTY OF VIOLATION OF THIS SECTION,THE PARTY MAKING THE REQUEST FOR JURY TRIAL SHALL BE LIABLE FOR THE REASONABLE ATTORNEYS' FEES AND COSTS OF THE OTHER PARTY IN CONTESTING THE REQUEST FOR JURY TRIAL, AND SUCH AMOUNTS SHALL BE AWARDED BY THE COURT IN ADJUDICATING THE MOTION. 8.12 Amendments. No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the Board and Municipality or others delegated authority or otherwise authorized to execute same on their behalf. 8.13 Prior Agreements. This Agreement represents the final and complete understanding of the Parties regarding the subject matter hereof and supersedes all prior negotiations and discussions regarding that subject matter. There is no commitment, agreement, or understanding concerning the subject matter of this Agreement that is not contained in this written document. 8.14 Incorporation By Reference.Any and all Recital or "Whereas" clauses stated above are true and correct and are incorporated by reference. The attached Exhibits "A," "B," and "C" are incorporated into and made a part of this Agreement. 8.15 Representation Of Authority. Each individual executing this Agreement on behalf of a party hereto hereby represents and warrants that he or she is, on the date he or she signs this Agreement, duly authorized by all necessary and appropriate action to execute this Agreement on behalf of such party and does so with full legal authority. 8.16 Counterparts and Multiple Originals. This Agreement may be executed in multiple originals, and may be executed in counterparts, each of which shall be deemed to be an original, but all of which,taken together, shall constitute one and the same agreement. 8.17 Nondiscrimination. No party to this Agreement may discriminate on the basis of race, color, sex, religion, national origin, disability, age, marital status, political affiliation, sexual orientation, pregnancy, or gender identity and expression in the performance of this Agreement. Standard Form (Illumination by Municipality) -9- (07-06-15) 8.18 Changes to Form Agreement. Municipality represents and warrants that there have been no revisions, alterations, or changes whatsoever to this form Agreement without the prior written consent of the County Attorney's Office. Any unapproved changes shall be deemed a default of this Agreement and of no legal effect. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] Standard Form (Illumination by Municipality) -10- (07-06-15) IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement: BROWARD COUNTY, through its BOARD OF COUNTY COMMISSIONERS, signing by and through its Mayor or Vice-Mayor, authorized to execute same by Board action on the _ day of 20_, and , signing by and through its , duly authorized to execute same. COUNTY ATTEST: BROWARD COUNTY, by and through its Board of County Commissioners Broward County Administrator, as By Ex-Officio Clerk of the Broward County Mayor Board of County Commissioners day of , 20_ Approved as to form by Joni Armstrong Coffey Broward County Attorney Governmental Center, Suite 423 115 South Andrews Avenue Insurance requirements Fort Lauderdale, Florida 33301 approved by Broward County Telephone: (954) 357-7600 Risk Management givis on, Telecopier: (954) 357-7641 By By Signature (Date) (Date) Assistant County Attorney Print Name and Title above (Date) Deputy County Attorney 07/06/15 HCED Form-Illumination(Muni instplls Muni maintains)_v2Final-20150706 Standard Form (Illumination by Municipality) -11- (07-06-15) AGREEMENT BETWEEN BROWARD COUNTY AND FOR TRAFFICWAY ILLUMINATION FOR MUNICIPALITY ATTEST: [NAME OF MUNICIPALITY] By Municipal Clerk Mayor-Commissioner (Print or Type Name) (Print or Type Name) day of , 20_. (SEAL) Municipal Manager (Print or Type Name) APPROVED AS TO FORM: By Municipal Attorney Standard Form (Illumination by Municipality) -12- (07-06-15) "This page is not part of the agreement; it is a page marker, detailing what exhibits should be attached" PternowtilftpaW and insert the following(your exhibits) into the hard-copy of the agreement: EXHIBIT"A" (Legal Description or Map Depicting the Limits) EXHIBIT"B" *41t_ p�e A reduced copy of plans illustrating the LtOWM SVstem to be installed within the property described in Exhibit "A" is included herewith. A full-size set of plans are on file with the Broward County Highway Construction and Engineering Division under Project Reference No. The shall substantially conform to the Standard Specifications for Highway Lighting established by the Florida Department of Transportation. EXHIBIT"C" (INSURANCE REQUIREMENTS—referenced in subsection 7.2.1)