95-21659 RESORESOLUTION NO. 95-21659
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA AUTHORIZING AND DIRECTING THE
MAYOR AND CITY CLERK TO EXECUTE THE ATTACHED AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND BELLSOUTH
TELECOMMUNICATIONS (BELLSOUTH) FOR THE UNDERGROUND
CONVERSION OF DISTRIBUTION FACILITIES ON ALLISON ISLAND
AND AUTHORIZING THE MAYOR, CITY CLERK AND CITY
ADMINISTRATION TO EXECUTE ALL PERMITS AND EASEMENTS
NECESSARY TO ACCOMMODATE THE REQUESTED UNDERGROUND
FACILITIES.
WHEREAS, Resolution No. 95-21572 authorized the creation of a
special assessment district to be known as the Allison Island
utility Improvement District and the levying of special assessments
to provide for the underground conversion of overhead utility
distribution faciities on Allison Island; and,
WHEREAS, the attached agreement between the City and BellSouth
is for the provision of underground distribution facilities in
place of the existing overhead distribution facilities, as
requested by the City; and,
WHEREAS, upon execution of the attached agreement the City
will need to provide all permits and easements necessary to
accommodate the requested underground facilities; and,
WHEREAS, the estimated cost for performing the underground
conversion of these utility distribution facilities is $37,528;
and,
WHEREAS, funding for the underground conversion of these
utility distribution facilities is available in work order
369.2117.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA THAT THE MAYOR AND
CITY CLERK ARE HEREBY AUTHORIZED AND DIRECTED TO EXECUTE THE
ATTACHED AGREEMENT BETWEEN THE CITY AND BELLSOUTH
TELECOMMUNICATIONS FOR THE UNDERGROUND CONVERSION OF DISTRIBUTION
FACILITIES ON ALLISON ISLAND AND THE MAYOR, CITY CLERK AND CITY
ADMINISTRATION ARE AUTHORIZED TO EXECUTE ALL PERMITS AND EASEMENTS
NECESSARY TO ACCOMMODATE THE REQUESTED UNDERGROUND FACILITIES.
PASSED and ADOPTED this
ATTEST:
CITY CLERK
FORM APPROVED
LEGAL DEPT.
By SL9 v
Date
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI REACH FLORIDA 33139
( L
COMMISSION MEMORANDUM NO.
TO: Mayor Seymour GeDror and
Members of the Cky Colnmiu)on DATE: July 26, 1995
FROM: dame GarehaPedrama €
City Manager
SUBJECT: ''�
I) A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF y
THE CITY OF MIAMI BEACH, FLORIDA AUTHORIZING AND
DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE THE
ATTACHED AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND
FLORIDA POWER AND LIGHT COMPANY (FPL) FOR THE
UNDERGROUND CONVERSION OF DISTRIBUTION FACILITIES ON
ALLISON ISLAND AND AUTHORIZING THE CITY TO PROVIDE ALL
PERMITS AND EASEMENTS NECESSARY TO ACCOMMODATE THE
REQUESTED UNDERGROUND FACILITIES.
2) A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA AUTHORIZING AND
DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE THE
ATTACHED AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND
BELLSOUTH TELECOMMUNICATIONS (BELLSOUTH) FOR THE
UNDERGROUND CONVERSION OF DISTRIBUTION FACILITIES ON
ALLISON ISLAND AND AUTHORIZING THE CITY TO PROVIDE ALL
PERMITS AND BASEMENTS NECESSARY TO ACCOMMODATE THE
REQUESTED UNDERGROUND FACILITIES.
3) A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA AUTHORIZING AND DIRECTING THE
MAYOR AND CITY CLERK TO EXECUTE THE ATTACKED AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND GOLD COAST CABLEVISION
(GOLD COAST) FOR THE UNDERGROUND CONVERSION OF DISTRIBUTION
FACILITIES ON ALLISON ISLAND, AND AUTHORIZING THE CITY TO
PROVIDE ALL PERMITS AND EASEMENTS NECESSARY TO ACCOMMODATE
THE REQUESTED UNDERGROUND FACILITIES.
ADMINISTRATION
The Administration recommends that the City Commission adopt the
attached resolutions authorizing the Mayor and the City Clerk to
execute agreements between the City and 1) Florida Power & Light
Company (FPL), 2) BellSouth Telecommunications and 3) Gold Coast
Cablevision to perform the underground conversion of utilities on
Allison Island and authorizing the City Commission to provide all
AGENDA ITEM -7 =1,�
DATE t'Z(0`
Commission Memorandum - July 26, 1995
Conversion Agreements
Page 2
permits and easements necessary to accommodate the requested
underground facilities.
BACRGRODND:
On May 3, 1995, the City Commission adopted Resolution No. 95-21572,
authorizing the creation of the Allison Island Utility Improvement
District, and the levying of special assessments to provide for the
underground conversion of utility distribution facilities on Allison
Island.
The FPL agreement provides that in the event that the actual cost of
the project exceeds the estimated amount, the City will be required
to pay the difference between the estimated cost and the actual cost,
but this amount cannot exceed 10 percent of the estimated cost or
$30,997. If the actual cost of this project is less than the estimated
amount, FPL will refund the difference to the City.
The other pole licensees (BellSouth and Gold Coast) require payment
in the estimated amount. There is no additional cost to the City if
the cost these costs are in excess of the estimated amount.
The City must comply, upon execution of the FPL agreement, with the
terms and conditions of FPL's Electric Tariff including execution of
conversion agreements with all affected pole licensees and the
provision of all permits and easements necessary to accommodate the
requested underground facilities.
The City Attorney has previously expressed legal concerns relative to
the PSC mandated agreements which have been utilized for the Terminal
Island and Sunset Harbour projects. Generally, all City contracts
contain a limitation on liability clause on the part of the City and
provide that the parties are required to arbitrate any monetary
disputes. These clauses are desirable so as to place a cap on any
potential damages and so that the City can limit the cost and time
involved regarding a dispute by sending matters to arbitration rather
than litigation. FPL has alleged it cannot add these clauses to the
agreement.
The agreement also does not state that the City can pursue all
available legal remedies in the event of a breach of the agreement
by FPL. Thus, it is possible that, in the event of such a breach, the
City may be limited to attempting to resolve a dispute through the
administrative process of the PSC. Such a limitation of remedies is
not in the best interest of the City. Again, FPL has alleged it cannot
add this clause to the agreement.
Commission Memorandum - July 26, 1995
Conversion Agreements
Page 3
CONCLUSION:
The execution of these agreements is necessary to perform the
underground conversion of utility distribution facilities on Allison
Island.
rjLqM
AGREEMENT BY AND BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
BELLSOUTH TELECOMMUNICATIONS, INC.
THIS AGREEMENT ( the "Agreement") is dated as of
April s , 1996 and is by and between the CITY OF MIAMI BEACH,
FLORIDA (the "City") and BELLSOUTH TELECOMMUNICATIONS, INC., a Georgia
corporation ('BellSouth"),
IN EXCHANGE for the mutual promises set forth herein, and other good and
valuable consideration, the receipt and adequacy of which is hereby conclusively
acknowledged, the parties agree as follows:
SCOPE OF SERVICES.
BellSouth will diligently, professionally and timely perform the services
described in Exhibit "A", which exhibit is attached hereto and incorporated herein.
2. TERM.
BellSouth will commence construction within thirty (30) days after the
underground utilities construction on Allison Island by Florida Power & Light and Gold
Coast Cablevision has been completed. BellSouth will complete performing all of its
services under this Agreement no later than ninety (90) days after commencement of the
rendition of services under this Agreement. BellSouth will coordinate its conversion with
Florida Power & Light and all other licensees in a timely manner so as not to create
unnecessary delays.
3. COMPENSATION.
The total fees and costs to be paid by the City to BellSouth pursuant
to this Agreement are Thirty -Seven Thousand Five Hundred Twenty -Eight Dollars and
No/100 ($37,528.00). BellSouth will be paid this amount by the City as follows:
The City will pay to BellSouth the amount of Eighteen Thousand Seven
Hundred Sixty -Four Dollars and No/100 ($18,764.00) within five (5) business days of both
parties signing this Agreement. The balance of the total amount, Eighteen Thousand
Seven Hundred Sixty -Four Dollars and No/100 ($18,764.00), will be paid to BellSouth by
the City upon the performance by BellSouth of all the services described in Exhibit "A" and
the presentation by BellSouth to the City of an invoice for that amount.
4. DEFAULTS.
A party shall be in default of this Agreement if it fails to fulfill in a timely
manner or otherwise violates any of the provisions of this Agreement, in the event of such
default, the non -defaulting party shall be entitled to pursue all available legal and equitable
remedies.
5. ATTORNEYS' FEES AND COSTS.
In the event of any arbitration and/or litigation arising out of this
Agreement, the losing party shall pay the prevailing party's reasonable attorneys' fees and
costs, at the trial and all appellate levels.
6. ASSIGNMENT.
Neither party shall assign or transfer this Agreement or any portion of
this Agreement without the prior written consent of the other party.
• 5 •' CM,i
The exclusive venue for any arbitration and/or litigation between the
parties, arising out of or in connection with this Agreement, shall be Dade County, Florida,
& ENTIRE AGREEMENT.
This document embodies the entire Agreement and understanding
between the parties hereto, and there are no other agreements or understandings, oral or
written, with reference to the subject matter hereof that are not merged herein and
superseded hereby.
a
No change in the terms of this Agreement shall be valid unless made
in writing and signed by both parties hereto.
10. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida, without reference to principles of conflict of laws.
11, LIMITATION OF LIABILITY.
The City and BellSouth desire to enter into this Agreement only if in
so doing the City and BellSouth can place a limit on the City's and BellSouth's liability for
any cause of action for money damages due to an alleged breach by the City or BellSouth
of this Agreement, so that the liability of each of the City and BellSouth for any such breach
never exceeds the sum of Thirty -Seven Thousand Five Hundred Twenty -Eight Dollars and
Noll 00 ($37,528.00). Accordingly, and notwithstanding any other term or condition of this
Agreement, BellSouth and the City hereby agree that neither the City nor BellSouth shall
be liable to the other for damages in an amount in excess of Thirty -Seven Thousand Five
Hundred Twenty -Eight Dollars and Noll 00 ($37,528.00) for any action or claim for breach
of contract arising out of the performance or non-performance of any obligations imposed
upon the City or BellSouth by this Agreement. Amounts due under Section 5 of this
Agreement shall not be part of the above -referenced limitation.
12. STATUTORY LIMITATION OF LIABILITY.
Nothing contained in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability as set forth in Florida Statutes,
Section 768.28,
13. NOTICES
All written communications and notices required to be given pursuant
to this Agreement shall be made by certified mail, return receipt requested or by hand -
delivery to the addresses provided below.
10._ ■ • utu .i
Jose Garcia -Pedrosa, City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
With a copy to:
Murray Dubbin, City Attorney
City of Miami Beach City Attorney's Office
1700 Convention Center Drive
Miami Beach, Florida 33139
TO BELLSOUTH
Frank V. Quintero, Manager -Engineer
BellSouth Telecommunications, Inc.
100 N.E. 80 Terrace
Miami, Florida 33138
With a copy to:
Stephen M. Klimacek
BellSouth Legal Department
150 West Flagler Street, Suite 1910
Miami, Florida 33130
15. HEADINGS.
The headings in this Agreement are only for convenience, are not a
substantive part of this Agreement and shall not affect the meaning of any provision of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their appropriate officials.
FOR CITY OF MIAMI BEACH:
ATTEST:
By: R6i�a�By:
Robert Parcher, City Clerk
Date:
FOR BELLSOUTH
TELECOMMUNICATIONS, INC.:
OF MIAMI BEACH
rORM APPROVED
i G
By
Date 3 S-7,6
BELLSOUTH
TELECOMMUNICATIONS, INC.
dSeymour Gelber
WITNESS:
By:�.fu�cr/1.K By: /{J�—.
N sSA 1��L 4��vilTZ �J-� /t' Sri
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Print Name Print Name
Title
Date: 1l1�- Date: 3 /9 G
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SCOPE OF SERVICES
BellSouth will provide and install underground telecommunication distribution
facilities in and throughout all of Allison Island, Miami Beach, Florida and will remove and
discard those existing overhead telecommunication distribution facilities in Allison Island
that will not be part of the underground facilities.
Support structures for the underground telecommunication facilities will be provided
and installed by BellSouth.
The underground facilities will be placed in a joint trench with the other utilities in
accordance with the trench layout contained in the plans provided by Florida Power & Light
to BellSouth on February 22, 1995.
All coordination in the placement of structures will be supervised by BellSouth.
BellSouth will not be responsible for excavation or restoration of the trench or the
cost of such excavation or restoration. All BellSouth splice -pits will be backfilled by
BellSouth or its representatives.
Exhibit "A"