Fort Walton Beach Resolution — 2024-18 Authorizing $48,400 to FDOT for Eglin Pkwy Improvements — reading text

Page 7 of 5 Docusign Envelope ID: C46140C1- 66A5- 406E- 851F- 8F4ED224FEB8 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710- 010- 57 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES LUMP SUM) 07114 The FOOT and the UAO acknowledge and agree that the amount stated above includes an additional ten percent ( 10%) to cover the UAO' s obligation for the cost of the Utility Work as set forth in Section 337. 403( 1)( b), Florida Statutes. Except for costs associated with any changes or additions to the Utility Work, the FOOT and the UAO agree that the deposit shall be an asset of the FOOT and that it constitutes a full and final lump sum payment for the cost of the Utility Work, without any requirement for a subsequent accounting for the use of the deposit. Pursuant to Section 337, 403( 1)( b), Florida Statutes, no changes or additions to the Utility Work will be made during the construction of the Project unless the UAO has made an additional deposit to cover the cost of the changes or additions. To the extent that the amount stated in Subparagraph 2. a above exceeds the amount of the FDOT contractor' s bid that applies to the Utility Work, such excess may be applied to cover the cost of the changes or additions. All changes or additions shall be subject to the limitations on supplemental agreements and change orders contained in Section 337. 11( 8), Florida Statutes. Default In the event that the UAO breaches any provision of this Agreement, then in addition to any other remedies which are otherwise provided for in this Agreement, the FOOT may exercise one or more of the following options, provided that at no time shall the FOOT be entitled to receive double recovery of damages: 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 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 that the FOOT 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 and from any statutory obligations that either party may have with regard to the subject matter hereof. 4. Indemnification FOR GOVERNMENT- OWNED UTILITIES: Page 2 of 5 Docusign Envelope ID: C46140C1- 66A5- 406E- 851F- 8F4ED224FEB8 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710- 010. 57 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT uTUTIES 1 -UMP SUM) 07114 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 claire 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 Fli will determine whetherto 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, 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 Fli option, to participate and associate with the FDOT in the defense and trial of any damage claire 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 or judgment 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 Fli 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 parry of the occurrence and its estimate duration, ( b) promptly remedied or mitigated the effect of the occurrence to the extent possible, and ( c) resumed performance as soon as possible. Miscellaneous a. To the Facilities shall at all times remain the property of and be properly protected and maintained by the UAO in accordance with the then current Utility Accommodation Manual and the current utility permit for the Facilities. b. Pursuant to Section 287. 058, Florida Statutes, the FDOT may unilaterally cancel this Agreement for Page 3 of 5 Docusign Envelope ID: C46140C1- 66A5- 406E- 851F- 8F4ED224FEB8 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 71C- 010- 57 UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT UTILITIES LUMP SUM) 07114 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 ali prior agreements, understandings, or negotiations with respect