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FDOT Utility Design Consultant Agreement Attachment A STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-56 UTILITY DESIGN BY FDOT CONSULTANT AGREEMENT UTILITIES (AT UTILITY EXPENSE) loioa Financial Project ID: Federal Project ID: County: State Road No.: District Document No: Utility Agency/Owner(UAO): 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 hereinafter referred to as the"UAO"; WITNESSETH: WHEREAS, the FDOT, is constructing, reconstructing, or otherwise changing a portion of a public road or publicly owned rail corridor, said project being identified as ,State Road No.: hereinafter referred to as the "Project"; and WHEREAS, the UAO owns or desires to install certain utility facilities which are located within the limits of the Project hereinafter referred to as the"Facilities"(said term shall be deemed to include utility facilities as the same may be relocated, adjusted, installed, or placed out of service pursuant to this Agreement); and WHEREAS,the Project requires the location(vertically and/or horizontally), protection, relocation,installation, adjustment or removal of the Facilities, or some combination thereof, hereinafter referred to as "Utility Work"; and WHEREAS, the DEPARTMENT and the UTILITY have determined that it would be to the best interest of the general public and to the economic advantage of both parties to enter into an agreement providing for the design of the Utility Work by the engineer designing the Project for the FDOT, hereinafter referred to as the"FDOT Consultant," which design of the Utility Work shall hereinafter be referred to as the"Utility Design"; and WHEREAS,the UAO, pursuant to the terms and conditions hereof,will bear certain costs associated with the Utility Design; NOW,THEREFORE, in consideration of the premises and the mutual covenants contained herein,the FDOT and the UAO hereby agree as follows: 1. Design of Utility Work a. FDOT Consultant shall prepare,at the UAO's sole cost and expense,final engineering design, plans, other necessary related design documents,and cost estimate for the Utility Work(hereinafter referred to as the "Plans Package") more specifically described in the FDOT's Supplemental Agreement# to Consultant Design Services Contract. b. The Plans Package shall be in the same format as the FDOT's contract documents for the Project. C. The Plans Package shall include any and all activities and work effort required to perform the Utility Work, including but not limited to, all clearing and grubbing, survey work and shall include a traffic control plan. d. The Plans Package shall be prepared in compliance with the FDOT's Utility Accommodation Manual and the FDOT's Plans Preparation Manual in effect at the time the Plans Package is prepared,and the FDOT's contract documents for the Project. If the FDOT's Plans Preparation Manual is updated and conflicts with the FDOT's Utility Accommodation Manual, the Utility Accommodation Manual shall apply where such conflicts exist. e. The technical special provisions which are a part of the Plans Package shall be prepared in Page 7 of 6 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-56 UTILITY DESIGN BY FDOT CONSULTANT AGREEMENT UTILITIES (AT UTILITY EXPENSE) loioa accordance with the FDOT's guidelines on preparation of technical special provisions. f. The FDOT Consultant shall provide a copy of the proposed Plans Package to the UAO,for review at the following stages: . The UAO shall review the Plans Package to see that it complies with the requirements of this Agreement. g. In the event the UAO finds any deficiencies in the Plans Package during the reviews performed pursuant to Subparagraph f. above, the UAO will notify the FDOT in writing of the deficiencies within the time specified in the plans review transmittal. h. The UAO shall furnish the FDOT such information from the UAO files as requested by the FDOT. I. The Facilities and the Utility Design will include all utility facilities of the UAO which are located within the limits of the Project, except as generally summarized as follows: These exceptions shall be handled by separate arrangement. 2. Cost of Design a. The UAO shall be responsible for all costs of the Utility Design. b. The UAO agrees that it will, at least ( )days prior to the FDOT issuing the Supplemental Agreement referred to in Paragraph 1 hereof,furnish the FDOT an advance deposit of$ for the payment of said Utility Design. It is understood that the FDOT's Consultant shall not begin any Utility Design until the FDOT has received the above payment and that if such payment is not received on or before this Agreement shall be null and void. The FDOT shall utilize this deposit for the payment of Utility Design. Both parties further agree that in the event the final billing pursuant to the terms of Subparagraph 2. d. below is less than the advance deposit, a refund of any excess will be made by the FDOT to the UAO. No work in excess of the advance deposit shall be done. In the event that it is subsequently determined that work in addition to that described in the Supplemental Agreement described in Paragraph 1 hereof is necessary in order to properly complete the Utility Design, the UAO shall make an additional deposit in the amount necessary to issue a subsequent Supplemental Agreement to the FDOT Consultant for the additional work. C. The payment of funds under this Agreement will be made (choose one): ❑ directly to the FDOT for deposit into the State Transportation Trust Fund. ❑ as provided in the attached Memorandum of Agreement between the UAO,the FDOT and the State of Florida, Department of Financial Services, Division of Treasury. Deposits of less than $100,000.00 must be pre-approved by the Department of Financial Services and the FDOT Comptroller's Office prior to execution of this agreement. d. Upon final payment to the FDOT Consultant, the FDOT intends to have its final and complete accounting of all costs incurred in connection with the Utility Design within three hundred sixty (360) days. All project cost records and accounts shall be subject to audit by a representative of the UAO for a period of three(3)years after final close out of the project. The UAO will be notified of the final cost. Both parties agree that in the event the final accounting of total project costs pursuant to the terms of this agreement is less than the total deposits to date,a refund of the excess will be made by the FDOT to the UAO in accordance with Section 215.422, Florida Statutes. 3. Default a. In the event 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: Page 2 of 6 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-56 UTILITY DESIGN BY FDOT CONSULTANT AGREEMENT UTILITIES (AT UTILITY EXPENSE) loioa (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 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 or from any statutory obligations that either parry may have with regard to the subject matter hereof. 4. 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, Page 3 of 6 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-56 UTILITY DESIGN BY FDOT CONSULTANT AGREEMENT UTILITIES (AT UTILITY EXPENSE) loroa 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 orjudgment 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. 5. 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 estimated duration, (b) promptly remedied or mitigated the effect of the occurrence to the extent possible, and (c) resumed performance as soon as possible. 6. Miscellaneous a. Time is of the essence in the performance of all obligations under this Agreement. b. 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 may be applicable at the time of the Project and the relocation of the Facilities. 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 portions hereof. e. 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: Page 4 of 6 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-56 UTILITY DESIGN BY FDOT CONSULTANT AGREEMENT UTILITIES (AT UTILITY EXPENSE) loioa If to the UAO: If to the FDOT: 7. 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." IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first written. UTILITY: BY: (Signature) DATE: (Typed Name: ) (Typed Title: ) Recommend Approval by the District Utility Office BY: (Signature) DATE: FDOT Legal review BY: (Signature) DATE: District Counsel Page 5 of 6 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No.710-010-56 UTILITY DESIGN BY FDOT CONSULTANT AGREEMENT UTILITIES (AT UTILITY EXPENSE) loioa STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY: (Signature) DATE: (Typed Name: ) (Typed Title: ) FEDERAL HIGHWAY ADMINISTRATION (if applicable) BY: DATE: (Typed Name: ) (Typed Title: ) Page 6 of 6