Special Construction Agreement ao I Z- 2 78 90
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SPECIAL CONSTRUCTION AGREEMENT
For the Relocation of Overhead Facilities to Underground
This Special Construction Agreement ("Agreement") is entered into by and between
the CITY OF MIAMI BEACH, a Florida municipal corporation (hereinafter the "City")
and ATLANTIC BROADBAND (MIAMI) LLC a Delaware limited liability
corporation with a place of business at 1681 Kennedy Causeway, North Bay Village, FL
33141 ("ABB" or the "Contractor"). The City and ABB hereby agree to the following
terms and conditions:
1; Special Construction Work & Consideration. This Agreement is for the
Special Construction Work described in Exhibit A and Exhibit A-1 "Scope of
Work", attached hereto and incorporated herein by reference ("Special
Construction Work"). Exhibit A includes conditions precedent to ABB
commencing the Special Construction Work ("Conditions Precedent"). As
consideration for the Special Construction Work, City agrees to pay ABB its
actual costs for the work. The City affirms that the Scope of Work is ABB's
estimate and that actual costs may be higher or lower. Said estimated cost may be
subject to change due to factors including, but not limited to, changing conditions
in the field or changes in the cost of labor or materials. City shall pay to ABB the
total estimated cost of $111,435.00 ("Estimated Special Construction Work
Charges") in three(3) installments according to the following schedule:
a. $55,717.50 within 30 days of the full execution of this Agreement but in
no event later than the commencement of work by ABB under'this
Agreement;
b. $27,858.75 upon completion of two (2) Phases (such Phases as described
in Exhibit A-2); and
c. $27,858.75 upon completion of all Phases of the Special Construction
{ Work.
Payment in full of the amount specified in (a) above is required before the Special
Construction Work will begin. Payment of the amounts specified in (b) and (c)
= : above shall be made within 30 days of invoice. All payments under this Section I
may be made in person or by mail to Atlantic Broadband (Miami) LLC, 1681
Kennedy Causeway, North' Bay Village, FL 33141, Attention: Special
Construction --Accounts Payable.
2. Cost Estimate. The Estimated Special Construction Work Charges amount is
valid for the length of the project.
3. Changes in Scope of Work or Field Conditions. If the City initiates changes in
the scope of work after the date of this Agreement, or that requires ABB to re-
engineer or reconstruct previously completed work, or there exists a condition in
the field or other relevant circumstances discovered after the date of this
Agreement that is materially different from the conditions or circumstances that
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were assumed in preparing the Estimated Special Construction Work Charges,
ABB may require the City to request a new cost estimate, the Estimated Special
Construction Work Charges amount may change, and the parties will cooperate to
sign an amendment to this Agreement incorporating any relevant changes to the
Estimated Special Construction Work Charges or Scope of Work.
4. Breach; Termination. If either party breaches any material provision in this
Agreement, then the other party may terminate this Agreement by written notice
to the breaching party; provided that, prior to any such notice of termination, the
other party provides written notice of the breach to the breaching party, and the
breaching party fails to cure the breach within 30 calendar days from receipt if the
notice of the breach. The time to cure shall be extended for a reasonable time to
allow for cure if the breach cannot be cured within 30 calendar days and if the
breaching party continues expeditiously to cure.
5. Early Termination. In the event of termination of this Agreement for any reason
in advance of completion of the Special Construction Work, in addition to any
other remedies that may be available to ABB, ABB shall have the right to retain
any Special Construction Work Charges previously paid by City that compensate
ABB for Special Construction Work performed, up to the date of termination,
and, additionally, ABB may also complete any segment of the Special
Construction Work in progress prior to such termination date. Following such
termination, ABB shall return to the City any such portion of such prior payment
that is in excess of the amounts that compensate ABB for Special Construction
Work performed up to the date of termination and/or which was in progress prior
to the termination date. If actual costs incurred by ABB for Special Construction
Work exceed the prior payments, the City shall be responsible to pay any such
excess amount within 30 days following receipt of an invoice form ABB.
6. Force Majeure; Time to Complete. Estimated completion dates and Special
Construction Work are subject to circumstances, including without limitation
weather, labor disputes, vendor/contractor disputes and other circumstances or
conditions outside of ABB's control.
7. Damages; No Damages for Delay. In the event of any claims arising from this
Agreement, neither party shall be liable for any special consequential, incidental
or indirect damages. Under no circumstances shall ABB be held liable to City for
any alleged delay in the Special Construction Work-beyond ABB's control.
8. Limitation of Liability. ABB's maximum liability arising in, out of or in any
connected to this Agreement shall in no event exceed the Estimated Special
Construction Work Charges.
9. Insurance. ABB shall secure and maintain throughout the duration of this
Agreement, insurance of such type and in such amounts necessary to protect its
interest and the interest of the City against hazards or risks of loss as specified
below and as required by the City. Such insurance shall, at a minimum, comply
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with all insurance requirements and specifications contained in Exhibit B
attached hereto and made a part hereof.
a. Evidence of ABB's Insurance. Unless, and to the extent, City has agreed
otherwise, ABB shall not commence the Special Construction Work until
ABB has procured the insurance required by the City and under this
Section 9 and such insurance has been approved by City. ABB shall
provide evidence of such insurance in the following manner. ABB shall
furnish City with a fully completed satisfactory Certificate of Insurance
such as a standard ACORD Certificate of Liability Insurance (ACORD
Form 25) or other evidence satisfactory to City, signed by an authorized
representative of the insurer(s) providing the coverage. The Certificate of
Insurance, or other evidence, shall provide that the City shall be given no
less than thirty (30) days' written notice prior to renewal or cancellation.
b. Qualification of ABB's Insurers. Insurers providing the insurance required
by this Agreement must either be: (1) authorized by a subsisting certificate
of authority issued by the State of Florida to transact insurance in the State
of Florida, or (2) except with respect to coverage for the liability imposed
by the Florida Workers' Compensation Act, an eligible surplus lines
insurer under Florida Statutes. Each insurer shall have and maintain
throughout the period for which coverage is required, a Best's Rating of
"A-" or better and a Financial Size Category of "VII" or better according
to A. M. Best Company.
c. Description of Required Insurance. Unless and to the extent City has
agreed otherwise, without limiting any of the other obligations or
liabilities of ABB, ABB shall, at ABB's sole expense, procure, maintain
and keep in force the amounts and types of insurance conforming to the
minimum requirements set forth herein. Except as otherwise specified in
this Agreement, the insurance shall commence prior to the commencement
of Special Construction Work by ABB and shall be maintained in force
until completion of and acceptance of the Special Construction Work.
d. Insurance on Subcontractors. ABB shall require its subcontractors to
maintain any and all insurance required by law and by the City.
10. Severability. Any provision of this Agreement held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the
remainder of this Agreement and the effect thereof shall be confined to the
provision so held to be invalid or unenforceable.
11. Successors and Assigns. This Agreement is binding upon and shall inure to the
benefit of the parties and their respective successors and assigns.
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12. Counterparts. This Agreement may be executed in one or more counterparts,
each of which when so executed shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument.
13. Effect of Waiver. No consent or waiver, express or implied shall be deemed a
consent to or waiver of any other breach of the same or any other covenant,
condition or duty.
14. Nondiscrimination. During the term of this Agreement, ABB shall not
discriminate against any of its employees or applicants for employment because
of their race, color, religion, sex, or national origin, and to abide by all Federal
and State laws regarding nondiscrimination.
15. Attorneys Fees and Waiver of Jury Trial. In the event of any litigation arising
out of this Agreement, the prevailing party shall be entitled to recover its
attorneys' fees and costs, including the fees and expenses of any paralegals, law
clerks and legal assistants, and including fees and expenses charged for
representation at both the trial and appellate levels. In the event of any litigation
arising out of this Agreement, each party hereby knowingly, irrevocably,
voluntarily and intentionally waives its right to trial by jury.
16. Indemnification. ABB shall defend, indemnify, and hold harmless the City, its
officers, agents and employees, from and against any and all third party demands,
claims, losses, suits, liabilities, causes of action,judgment or damages, arising out
of, related to, or any way connected with the Special Construction Work, ABB's
performance or non-performance of any provision of this Agreement, including,
but not limited to, liabilities arising from contracts between ABB and third parties
made pursuant to this Agreement. ABB shall reimburse the City for all its
expenses including reasonable attorneys' fees and costs incurred in and about the
defense of any such third party claim or investigation and for any judgment or
damages arising out of, related to, or in any way connected with the Special
Construction Work and ABB's performance or non-performance of this
Agreement. The provisions of this section shall survive termination of this
Agreement.
17. Notices/Authorized Representatives. Any notices required by this Agreement
shall be in writing and shall be deemed to have been properly given if transmitted
by hand-delivery, by registered or certified mail with postage prepaid return
receipt requested, or by a private postal service, addressed to the parties (or their
successors) at the following addresses:
For the City: Fernando Vazques, Director CEP
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With a copy to: Matilde E. Reyes, RA
Sr. Capital Projects Coordinator
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City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
For The Contractor: Atlantic Broadband
1681 Kennedy Causeway
North Bay Village, FL 33141
Attention SVP and General Manager
Telephone: (305) 861 8069 ext 3101
Facsimile: (305) 864 1327
With a copy to: Atlantic Broadband
One Batterymarch Park
Quincy, MA 02169
Attn: General Counsel
Telephone: (617) 786 8800
Facsimile: (617) 786 8803
18. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Florida. Venue for any litigation arising out
of this Agreement shall be proper exclusively in Miami-Dade County, Florida.
19. Entire Agreement/Modification/Amendment. This writing contains the entire
agreement of the parties and supersedes any prior oral or written representations.
No representations were made or relied upon by either party, other than those that
are expressly set forth herein. No agent, employee, or other representative of
either party is empowered to modify or amend the terms of this Agreement, unless
executed with the same formality as this document. ABB represents that is an
entity validly existing and in good standing under the laws of Florida. The
execution, delivery and performance of this Agreement by each party has been
duly authorized, and this Agreement is binding on the parties and enforceable
against each party in accordance with its terms. No consent of any other person
or entity to such execution, delivery and performance is required.
20. Audit.The City Manager or his designee shall, during the term of this Agreement
and for a period of three (3) years from the date of termination of this Agreement,
have access to and the right to examine and audit any records of ABB involving
transactions related to this Agreement. The right to access and examination of
records in this paragraph shall continue until disposition of any mediation, claims,
litigation or appeals. The City may cancel and terminate this Agreement
immediately for refusal by the ABB to allow reasonable access by the City
Manager or his designee to any records pertaining to work performed under this
Contract that are subject to the provisions of Chapter 119, Florida Statutes.
21. Term. The Term of this Agreement and ABB's exclusive use of the ABB
Conduit System shall be the term of ABB's (and its successors' and assigns')
franchise or other legal authority to operate its systems within the City.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and date first above written.
CITY: CONTRACTOR:
CITY F MIAMI B ACH ATL IC BROADBAND
( , LLC
By:- B
Jame Waldo.
ity Man ger SVP nd Manager
B
Attest:
Cit4 Clerk
PPRO D AS TO M AND `. NCORP GRATED
LEGAL UFFI ENCY:
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EXHIBIT A-1
ATLANTIC BROADBAND—FLORIDA
SCOPE OF WORD
PROJECT FOR RELOCATING EXISTING AERIAL CATV FACILITIES TO
UNDERGROUND IN CONDUITS PROVIDED BY THE CITY OF MIAMI
BEACH'S DESIGNATED CONTRACTOR
Summary:
• Install all coax and fiber in new conduit provided by others with best construction
practices.
• Insure grounding of all the new system in accordance with Atlantic Broadband
specifications and N.E.S.C.
• Test and verify the functionality and specifications of all installed facilities.
• Measure and record all signal readings and tests.
• Move customers from old system to new system.
• Wreck out and dispose of all the existing aerial facilities.
1. Installation
Installation of ABB facilities will follow verification and release of conduit from
the Miami Beach designated contractor. Pull strings are required in all conduits.
All above ground enclosures to be installed and maintained by ABB.
2. Organization,Management, Communications and Reporting
ABB authorized contractor is responsible for all construction planning, scheduling
and reporting. A representative from contractor will attend all planning and
update meeting. Project management is the responsibility of ABB Construction
Manager or designated appointee. All communication with residents in the event
it is necessary will be controlled and responses will be from ABB Construction
Manager.
3. Work Duration
The estimated time frame for the duration of this work is
through
4. Authorization to Proceed
Work will commence upon written notification from Miami Beach City
Manager/Project Manager.
5. Payment and Billing Schedule
Payment schedule will be as follows:
50% before commencement
25% at 50% completion
25% at 100% completion
Notification with invoice will be submitted to Miami Beach City Manager at each
interval.
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6. Vehicles and Equipment
All ABB contractors and personnel will have ID badges and identification. All
vehicles and equipment will have Atlantic Broadband signs affixed to them. All
personnel and equipment will be-utilized with the utmost respect for the City of
Miami Beach's and residents' properties. All equipment left overnight will be
secured per Miami Beach's approval. All personnel will be off site per Miami
Beach's requirements.
7. Insurance
Insurance certificates will be submitted to Miami Beach as required.
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EXHIBIT A-2
WORK AREA
(Copy attached hereto)
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EXHIBIT A-3
BILL OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the City of Miami Beach,
Florida, does hereby bargain, sell, transfer, and convey unto Atlantic Broadband (Miami)
LLC all right title and interest in and to the ABB Conduit, as described in that certain
Agreement between said parties dated 92012.
TO HAVE AND TO HOLD unto the said grantee forever.
INWITNESS WHEREOF, the undersigned has executed this Bill of Sale this_
day of ,2012.
CITY OF MIAMI BEACH, FLORIDA
BY:
Name:
Title
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EXHIBIT B
INSURANCE REQUIREMENTS & SPECIFICATI®NS
(Copy attached hereto)
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INTERLOCAL AGREEMENT BY AND BETWEEN
MIAMI-DADE COUNTY, FLORIDA AND THE CITY
OF MIAMI BEACH FOR THE UNDERGROUND
BURIAL OF EXISTING OVERHEAD ELECTRICAL,
TELEPHONE AND CABLE TELEVISION SERVICE
LINES FOR THE HIBISCUS ISLAND OVERHEAD
SERVICES RELOCATION IMPROVEMENT
SPECIAL TAXING DISTRICT PURSUANT TO
ORDINANCE NO. 10-51
THIS INTERLOCAL AGREEMENT, made and entered into this / as Y of
2012,_by and between MIAMI-DADE COUNTY, FLORIDA (the "COUNTY"),
a political subdivision of the State of Florida, and the CITY OF MIAMI BEACH, FLORIDA
(the "CITY"), a municipality organized and existing under the laws of the State of Florida.
WHEREAS, Section 163.01, Florida Statutes and the Miami-Dade County Home
Rule Charter, as amended, permit the COUNTY and the CITY to enter into interlocal
agreements; and
WHEREAS, the Commission of the City of Miami Beach passed and adopted
Resolution No. 2009-27065, approving the creation of the HIBISCUS ISLAND
OVERHEAD SERVICES RELOCATION IMPROVEMENT SPECIAL TAXING DISTRICT;
and
WHEREAS, the Miami-Dade County Board of County Commissioners, by adoption
of Ordinance No. 10-51 on September 21, 2010, created the HIBISCUS ISLAND
OVERHEAD SERVICES RELOCATION IMPROVEMENT SPECIAL TAXING DISTRICT,
pursuant to Chapter 18 of the Code of Miami-Dade County, Florida, and Section 1.01 (a)
(11) of the Miami-Dade County Home Rule Charter, as amended, and authorized the
County Mayor or the Mayor's designee to enter into this Interlocal Agreement with the
CITY to provide the capital improvements for the District; and
WHEREAS, the District was approved on December 7, 2010, by a majority vote of
qualified electors residing within the District; and
WHEREAS, the parties hereto, for the consideration herein as set forth mutually
agree as follows:
1. The CITY shall design, construct and install or cause to be designed,
constructed and installed for the subject District all capital improvements necessary to
affect the underground burial of existing overhead electrical, telephone and cable
television service lines, in accordance with the minimum standards and requirements set
forth by the CITY, the Florida Power and Light Company, AT&T, and Atlantic Broadband
Cable.
2. The improvements approved to be constructed shall be located within the
public Rights-of-Way. The boundaries of the HIBISCUS ISLAND OVERHEAD SERVICES
RELOCATION IMPROVEMENT SPECIAL TAXING DISTRICT are shown on the attached
Exhibit A.
3. The COUNTY shall reimburse the CITY for all costs of contract
administration, labor, materials and supplies necessary to provide the capital
improvements described herein. Total cost not to exceed $1,834,581.00
4. The COUNTY, from special assessments collected from within the District,
will pay in full to the limit specified in Section 3 all costs incurred by the CITY within 30
days of receipt of itemized final invoicing.
5. The CITY shall indemnify and hold harmless the COUNTY and its officers,
employees, agents and instrumentalities from any and all liability, losses or damages,
including attorneys' fees and costs of defense, which the COUNTY or its officers,
employees, agents or instrumentalities may incur as a result of claims, demands, suits,
causes of actions or proceedings of any kind or nature arising out of, relating to or
resulting from the performance of this Agreement by the CITY or its employees, agents,
servants, partners, principals or subcontractors. The CITY shall pay all claims and losses
in connection therewith and shall investigate and defend all claims, suits or actions of any
kind or nature in the name of the COUNTY whe r e a pp licable including appellate
proceedings, and shall pay all costs, judgments, and attorney's fees which may issue
thereon. Provided, however, this indemnification shall only be to the extent and within the
limitations of Section 768.28 Florida Statutes, subject to the provisions of that Statute
whereby the CITY shall not be held liable to pay a personal injury or property damage
claim or judgment by any one person which exceeds the sum of$100,000, or any claim or
judgment or portions thereof, which, when totaled with all other claims or judgment paid by
the CITY arising out of the same incident or occurrence, exceed $200,000 from any and all
personal injury or property damage claims, liabilities, losses or causes of action which may
arise as a result of the negligence of the CITY.
IN WITNESS WEREOF, the parties having caused this Interlocal Agreement to be
executed by their respective and duly authorized officers.
[Remainder of Page Intentionally Left Blank--Signature Page and Exhibit to Follow]
CITY OF MIAMI BEACH, MIAMI-DADE COUNTY,
FLORIDA FLORIDA
CI A AGE LINTY MAY R OR
By IT CI OMMISSION AYOR'S DESIGNEE
ATTEST: =INCORP ORATED,
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CITY CLERK DEPUTY CLERK
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(SEAL)
RISK MANAGEMENT MANAGEMENT (if applicable)
APPROVED as to Form APPROVED as to Legal Form
nguage aril for Execution
-.C1 T�TOaNEy ASSISTANT COUN
`�� ` ATTORNEY
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