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95-21660 Reso RESOLUTION NO. 95-21660 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 GOLD COAST CABLEVISION (GOLD COAST) 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 levy of special assessments to provide for the underground conversion of overhead utility distribution facilities on Allison Island; and, WHEREAS, the attached agreement between the City and Gold Coast 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 $30, 855; 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 GOLD COAST CABLEVISION 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 26th /:ay of July, 19.5. 19 I/ �O MAYOR ATTEST: ORM ' '.OVED \6tLkk Vats LEGAL EPT. CITY CLERK By _ J Date CITY OF MIAM1 BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 COMMISSION MEMORANDUM NO. .,q p�- 1 S TO: Mayor Seymour Gelber and Members of the City Commission DATE: July 26, 1995 FROM: Jose Garcia-Pedrosa City Manager SUBJECT: 1) A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF (IAMI 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 EASEMENTS 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 ATTACHED 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 RECOMMENDATION: 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 C C-) DATE -1 -2� -9 Commission Memorandum - July 26, 1995 Conversion Agreements Page 2 permits and easements necessary to accommodate the requested underground facilities. BACKGROUND: 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. ANALYSIS: 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. KM:\km AGREEMENT BY AND BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND GOLD COAST CABLEVISION THIS AGREEMENT ( the"Agreement") is dated as of June 10 1996 and is by and between the CITY OF MIAMI BEACH, FLORIDA (the "City") and GOLD COAST CABLEVISION, a Florida corporation ("Gold Coast"). 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: 1. SCOPE OF SERVICES. Gold Coast will diligently, professionally and timely perform the services described in Exhibit "A", which Exhibit is attached hereto and incorporated herein. 2. TERM. Gold Coast will commence construction within thirty (30) days after the underground utilities construction on Allison Island by Florida Power and Light has been completed. Gold Coast 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. Gold Coast will coordinate its conversion with Florida Power and Light and all other licensees in a timely manner so as not to create unnecessary delays. Notwithstanding anything to the contrary, if Gold Coast is required to commence construction pursuant to this Agreement by a date which is later than December 31, 1996, this Agreement will be null and void and of no effect. 3. COMPENSATION. The total fees and costs to be paid by the City to Gold Coast pursuant to this Agreement are Thirty Thousand Eight Hundred Fifty-Five Dollars and No/100 ($30,855.00). Gold Coast will be paid this amount by the City as follows: The City will pay to Gold Coast the amount of Fifteen Thousand Four Hundred Twenty-Seven Dollars and 50/100 ($15,427.50) within five (5) business days of both parties signing this Agreement. The balance of the total amount, Fifteen Thousand Four Hundred Twenty-Seven Dollars and 50/100 ($15,427.50), will be paid to Gold Coast by the City upon the performance by Gold Coast of all the services under this Agreement and the presentation by Gold Coast to the City of an invoice for that amount. In addition, with regard to the services to be performed by Gold Coast pursuant to this Agreement and pertaining to Allison Island, the City agrees either to waive all City permit fees or to reimburse Gold Coast for the cost of any permit fees charged by the City to Gold Coast. 4. DEFAULTS. Gold Coast shall be in default of this Agreement if Gold Coast fails to fulfill in a timely manner or otherwise violates any of the provisions of this Agreement or if Gold Coast is placed either in voluntary or involuntary bankruptcy, becomes insolvent, changes its majority ownership, or makes an assignment for the benefit of creditors. In the event of such default, the City 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. Gold Coast shall not assign or transfer this Agreement or any portion of this Agreement without the prior written consent of the City. 7. EXCLUSIVE ARBITRATION AND/OR LITIGATION VENUE. 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. 8. ENTIRE AGREEMENT. This document embodies the entire Agreement and understanding between the parties hereto, and there are no other agreements or understandings, ora; or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 9. NO MODIFICATION. 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. 2 11. LIMITATION OF LIABILITY. The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of Thirty Thousand Eight Hundred Fifty-Five Dollars and No/100 ($30,855.00). Accordingly, and notwithstanding any other term or condition of this Agreement, Gold Coast and the City hereby agree that the City shall not be liable to Gold Coast for damages in an amount in excess of Thirty Thousand Eight Hundred Fifty-Five Dollars and No/100 ($30,855.00) which amount shall be reduced by the amount actually paid by the City to Gold Coast pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City 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. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "Rules"), and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, except as provided in the Rules, and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. 14. 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. TO THE CITY OF MIAMI BEACH: Jose Garcia-Pedrosa, City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 3 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 GOLD COAST: Mark Figel, Accounting Supervisor Gold Coast Cablevision 1440 - 79th Street Causeway, Suite 201 North Bay Village, Florida 33141 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, as of the date first entered above. FOR CITY OF MIAMI BEACH: CITY OF MIAMI BEACH ATTEST: By: 16 J-Ik6 By: J______ . . . .PROVED Robert Parcher, City Clerk =yo mou Gelber LE AL PT. Date: 4�. . Date: c ✓ 199j By Date S ^% FOR GOLD COAST CABLEVISION GOLD COAST CABLEVISION WITNESS: By: • "' By: 1 -1,0-44.1-- Ge.....er..4 Title Print Name Print Name Date: -C/a</1'4 Date: l 3 ofAMJcw tlattottaglagreemrir oldcoas.ag3 4 SCOPE OF SERVICES Gold Coast will provide and install underground cable television distribution facilities in and throughout all of Allison Island, Miami Beach, Florida and will remove and discard all of the existing overhead cable television distribution facilities in Allison Island. The new 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 and Light to Gold Coast. All coordination in the placement of structures will be supervised by Gold Coast. Gold Coast will not be responsible for excavation or restoration of the trench or the cost of such excavation or restoration. The individual residents of Allison Island will be responsible for costs to install their service drops to Gold Coast's points of presence. Exhibit "A"