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Home My WebLink AboutAgenda Packet 02-04-1997CALL TO ORDER: PLEDGE OF ALLEGIANCE: ROLL CALL: ity of Cape Canaveral JL REGULAR MEETING Y HALL ANNEX ae, Cape Canaveral, Florida TUESDAY ,bruary 4, 1997 7:00 P.M. AGENDA PRESENTATIONS: Lt. Steve Salvo, formerly Cape Canaveral Precinct CONSIDERATIONS: 1. Motion to Approve: The City Council Regular Meeting Minutes of January 14 and City Council Regular Meeting Minutes of January 23, 1997. 2. Motion to Approve: Tricon Development request for a ninety (90) day extension to a temporary permit for a construction trailer. 3. Motion to Approve: Quarterly Treasurer's Report and Budget Transfers 4. Motion to Approve: The appropriation of $20,000 for an operations and maintenance manual for the Wastewater Treatment Plant by Hartman & Associates 5. Motion to Approve: Appropriation of Beautification Funds to landscape the Tower Boulevard medians, including annual maintenance fees d:\citycl--t \cityclk\agenda\regular\ 199"\02-04-97. doe 105 POLK AVENUE • POST OFFICE 80X 326 • CAPE CANAVERAL, FL 32920-0326 TELEPHONE (407) 868-1200 0 FAX 1407) 799-3170 City Council Regular Meeting Agenda February 4, 1997 Page 2 RESOLUTIONS: 6. Motion to Approve: Resolution No. 97-04, A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, URGING THE 1997 FLORIDA LEGISLATURE TO CREATE A DEDICATED FUNDING SOURCE FOR STATEWIDE BEACH MANAGEMENT AND SUPPORTING HOUSE BILL 103. PUBLIC HEARINGS ORDINANCE - SECOND READING: 7. Motion to Adopt: Ordinance No. 25-96, AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY FLORIDA, IMPOSING A 180 DAY MORATORIUM ON ISSUING NEW PERMITS FOR CELLULAR TELEPHONE OR SIMILAR TYPE COMMUNICATION ANTENNAS IN THE CITY OF CAPE CANAVERAL; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. ORDINANCE - FIRST READING: 8. Motion to Approve: Ordinance No. 01-97, AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, FLORIDA RELATING TO THE PROVISION OF NATURAL GAS SERVICES BY CITY GAS COMPANY OF FLORIDA WITHIN THE MUNICIPAL BOUNDARIES OF THE CITY, PROVIDING A SHORT TITLE; STATING A PURPOSE AND SEVERAL GOALS; PROVIDING A MARKETING STRATEGY; PROVIDING DEFINITIONS; GRANTING A FRANCHISE; PROVIDING A TERM AND EFFECTIVE DATE; SETTING FORTH TERMS FOR FRANCHISE OPERATION AND TRANSFER OF OWNERSHIP OR CONTROL; PROVIDING FOR FRANCHISE FORFEITURE OR REVOCATION; REQUIRING LIABILITY INSURANCE AND INDEMNIFICATION TO THE CITY; REQUIRING A PERFORMANCE BOND; PROVIDING FOR DESIGN AND CONSTRUCTION PROVISIONS; PERMITTING CITY REVIEW OF BOOKS AND RECORDS OF FRANCHISEE; PROHIBITING PREFERENTIAL OR DISCRIMINATORY PRACTICES; SETTING FORTH SERVICE STANDARDS FOR SEVERABILITY; PROVIDING FOR REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCORPORATION INTO THE CODE; AND PROVIDING FOR AN EFFECTIVE DATE. City Council Regular Meeting Agenda February 4, 1997 Page 3 DISCUSSION: Evaluation of City Engineers, Stottler, Starner & Associates REPORTS: 10. City Manager's Report. ADJOURNMENT: If any person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, he/she will need a record of the proceedings, and for such purpose he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based (FS 28 6.0105). Meeting Type: Regular Meeting Date: 02-04-97 �E C:MA F VERAt AGENDA Hadm� Considerations Item 2 No. City er's Office AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: TRICON DEVELOPMENT REQUEST FOR A 90 -DAY EXTENSION OF A TEMPORARY PERAffr FOR A CONSTRUCTION TRAMER DEPT./DIVISION: BUILDING DEPT./PUBLIC SAFETY Requested Action: That the City Council consider granting a 90 -day extension for Tricon Development's construction trailer. Summary Explanation & Background: This is the 4th request and the building official is recommending approval. Exhibits Attached: Tricon's request dated 01-16-97/Building Official's memo dated 01-20-97 City er's Office Department t .f M E M O R A N D U M Date: January 27, 1997 To: Bennett Boucher, City Manager From: G. J. Moran, Building Official Subject: TRICON DEVELOPMENT (SAND DUNES PROJECT) TEMPORARY PERMIT (#95-00060) CONSTRUCTION TRAILER - 4TH REQUEST Referencing the above request (see attached letter dated January 16, 1997), relating to a ninety (90) day extension to a temporary permit, I am of the opinion, in view of the existing amendment to the Standard Building Code, Section 104.6.1 that the City Council review and consider this request at the next scheduled Council meeting. The Building department has no objections to the granting of this 4th request. GJM:slc TRICON DEVELOPMENT, INC. P.O. BOX 320637 COCOA BEACH, FL 32932-0637 (407)453-5360 (407)453-3618 January 16, 1997 Qr�4L�� City of Cape Canaveral Building Department 105 Polk Avenue P.O. Box 326 Cape Canaveral, FL 32920-0326 ATTENTION: G.J. "Whitey" Moran, Building Official REFERENCE: Sand Dunes Condominium Temporary Sales/Construction Trailor Dear Mr. Moran, On February 13, 1997 our (90) day permit #9600060, for the sales trailor located at 425 Buchanon Avenue, Cape Canaveral, FL 32920 expires. We respectfully request a (90) day extension to this permit. Thank you in advance for your consideration of this matter. If you have any questions do not hesitate to contact me at this office. Sincerely, LZ I Z-`�-XAlan R. Vinacke Project Manager M E M O R A N D U M Date: January 27, 1997 To: Bennett Boucher, City Manager From: G. J. Moran, Building Official Subject: TRICON DEVELOPMENT (SAND DUNES PROJECT) TEMPORARY PERMIT (#95-00060) CONSTRUCTION TRAILER - 4TH REQUEST ------------------------------------------------------------------------------------------------------------- Referencing the above request (see attached letter dated January 16, 1997), relating to a ninety (90) day extension to a temporary permit, I am of the opinion, in view of the existing amendment to the Standard Building Code, Section 104.6.1 that the City Council review and consider this request at the next scheduled Council meeting. The Building department has no objections to the granting of this 4th request. GJM:slc TRICON DEVELOPMENT, INC. P.O. BOX 320637 COCOA BEACH, FL 32932-0637 (407)453-5360 (407)453-3618 January 16, 1997 City of Cape Canaveral Building Department 105 Polk Avenue P.O. Box 326 Cape Canaveral, FL 32920-0326 ATTENTION: G.J. "Whitey" Moran, Building Official REFERENCE: Sand Dunes Condominium Temporary Sales/Construction Trailor Dear Mr. Moran, EA On February 13, 1997 our (90) day permit #9600060, for the sales trailor located at 425 Buchanon Avenue, Cape Canaveral, FL 32920 expires. We respectfully request a (90) day extension to this permit. Thank you in advance for your consideration of this matter. If you have any questions do not hesitate to contact me at this office. Sincerely, r Alan R. Vinacke Project Manager MEMO TO: Bennett Boucher, City Manager Mayor and Members of Council y%� FROM: Deborah Haggerty Barker, City Treasurer o ""� DATE: 01/23/97 RE: QUARTERLY FINANCIAL REPORT AND BUDGET AMENDMENTS FOR QUARTER ENDING 12/31/96 The following is a synopsis of the City's financial position effective 12/31/96. Also included is a list of suggested budget amendments reflecting changes in fiscal activity during the first three months of the new fiscal year. GENERAL FUND REVENUE: "Federal Disaster Relief" has been supplemented via the final F.E.M.A payment for damages incurred from Hurricane Erin in August 1995. That claim has been processed in its entirety; the City received $35,126.in total federal and state funds relating to the Erin disaster. The "Recreation Grant" has been carried forward from prior year. "Cash Forward" is used as a revenue source and has been supplemented accordingly to encompass increased general fund projects and purchases; refer to non -departmental segment for details. Other changes are itemized by department, as follows: EXPENSES BY DEPARTMENT: LEGISLATIVE: There are no budget amendments recommended. ADMINISTRATION: There are no budget amendments recommended. PLANNING AND ZONING: An increase in "Planning Services" has been brought forward from prior in conjunction with the E.A.R. grant funding. Planning Services are attributed to professional planning service fees based on activity with the Comprehensive Plan, Call One and the E.A.R. PUBLIC SAFETY: The "Police Service Contract" for 1996/97*has been downsized by the amount of cash forward received from the 1995/96 Police Service Contract. As per my recollection at 96/97 budget proceedings, the Council was desirous to contemplate the earmarking any surplus funds from the 95/96 contract for the purchase of additional law enforcement vehicles. This surplus (less increases in general fund operating expenses) has been routed to the general fund contingency to cover the cost of additional law enforcement vehicles. A "School Resource Officer" line item has been added to support our City's prorated share of the school resource officer at Cocoa Beach High School for the remainder of the 1996 school year. FIRE: There are no budget amendments recommended. Budget Amendments Q: 12/31/96 Page 2 BUILDING: There are no budget amendments recommended. STREET: There are no budget amendments recommended. RECREATION: The "Rental and Leases" line item has been supplemented for the annual lease expense of the Long Point Road Park Property. "Capital Items" has been increased for the purchase of a pool table for the youth center. ARCHITECTURAL REVIEW BOARD: There are no budget amendments recommended. LEGAL: There are no budget amendments recommended. GARBAGE SERVICE: There are no budget amendments recommended. COMMUNITY DEVELOPMENT: There are no budget amendments recommended. NON -DEPARTMENTAL: "Grant Writing Services" has been supplemented to cover the Emergency Management Grant costs associated with obtaining hurricane shutters and an emergency generator for City facilities. "Ethics Case Reimbursement Fees" were increased to cover expenses incurred by Mayor Porter on the successful defense of a recent E.E.O.C. complaint. "Transfer to Capital Improvement Fund" has been heartily upsized, by project, as follows: •58K was carried forward from prior year for the Sheriff's Department remodeling project. 0$47,748. was carried forward from prior year for the FRDAP grant. 915K was allotted for the City Clerk's Scanning Server to be used in conjunction with the Optical Imaging Computer System. eAn additional $438. was allocated towards the purchase of the Street Department Pick -Up Truck. *The Fire Department Staff Vehicle was appropriated under budget by ($792.) • The BallPark Fencing Project was carried forward from prior year in the amount of $15,193. The culmination of these itemized projects calculate to an additional $135,582. within the 96/97 budget. BEAUTIFICATION FUND The capital purchase of a mulch storage bin was carried forward from the 1995/96 budget; the "Cash Forward" and "Capital" line items have been adjusted commensurately for this purchase. Budget Amendments Q: 12/31/96 Page 3 STORMDRAINAGE FUND "Interest Expense" has been adjusted accordingly to pay interest coupons that were submitted for payment during the quarter. The contingency "Reserve" account was supplemented for this purpose. CAPITAL EXPANSION TRUST FUND "General Government Impact Fees" were allocated for the purchase of the City Clerk's Optical Imaging System. This purchase was supported by "General Government Contingency" and "Cash Forward" as a revenue source. SEWER ENTERPRISE FUND "Interest Income" accounts for the respective State Revolving Loan Fund Accounts have been introduced for this budget year and have been adjusted in accordance with expectations. "Cash Forward" has been utilized to supplement additional expenditures. "Expansion Fund" costs have been increased to support on-going engineering fees related to plant & reuse expansion. 52K has been allocated to the "Tower Boulevard Paving Project." The "Contingency" account has been tapped to offset increased projects. FINANCIAL RECAP The City completed the first quarter of the 1996-97 in a positive financial position in all funds. Within the General Fund, revenues are being received in accordance with projections; within an appropriate overall collection percentage rate of 25%. Expenditures by department are suitable and within expectations. The capital expenditures have increased substantially, however the bulk of such expenses are associated with projects and/or grant activity that has rolled forward from the 1995/96 fiscal year. The Sewer Enterprise Fund continues to illustrate significant fiscal activity in conjunction with Wastewater Plant Expansion and Reuse System implementation. All State Revolving Loan Fund activity, including receipts and disbursements, is transpiring smoothly and in compliance with loan specifications. Budget Amendments Q: 12/31/96 Page 4 The fiscal activity of all other City funds not specifically cited herein is within expected parameters; there are no irregularities to report. As expected, the City will enter the second quarter of the 1996-97 fiscal year in a proper and sound financial position. Thank you for the opportunity to update you on the City's fiscal posture as of December 31, 1996. CITY OF CAPE CANAVERAL BUDGET TRANSFERS FOR THE THREE MONTHS ENDING DECEMBER 31, 1996 LINE ITEM ACCOUNT 10/01/96 BUDGET 12/31/96 NUMBER NAME BALANCE AMENDMENTS BALANCE GENERAL FUND REVENUE 001-300.1000 CASH FORWARD 79,479 78,600 158,079 001-331.5000 FEDERAL DISASTER RELIEF - 6,982 6,982 001-334.7000 RECREATION GRANT - 50,000 50,000 AMENDED GENERAL FUND REVENUE 3,365,396 PLANNING & ZONING 001-0003-515.3100 PLANNING SERVICES 3,000 8,000 11,000 AMMENDED PLANNING & ZONING BUDGET 14,650 PUBLIC SAFETY 001-0004-521.3400 POLICE SERVICE CONTRACT 1,048,028 (51,442) 996,586 001-0004-521.3411 SCHOOL RESOURCE OFFICER - 2,490 2,490 AMENDED PUBLIC SAFETY BUDGET 1,013,697 PARKS & RECREATION 001-0011-572.4400 RENTALS AND LEASES - 1,500 1,500 001-0011-572.6400 CAPITAL ITEMS - 1,200 1,200 AMENDED PARKS & RECREATION BUDGET 182,270 GENERAL FUND NON -DEPARTMENTAL 001-0017-901-3112 GRANT WRITING SERVICES - 2,000 2,000 001-0017-901.4920 ETHICS CASE REIMBURSEMENT FEES - 1,898 1,898 001-0017-901.9110 TRANSFER TO CAPITAL IMPROVEMENT FUND 138,405 135,582 273,987 001-0017-901.9900 CONTINGENCY 6,910 34,354 41,264 AMENDED GENERAL FUND NON -DEPARTMENTAL BUDGET 333,649 BEAUTIFICATION FUND REVENUE 105-301.1000 CASH FORWARD - 3,833 3,833 AMENDED BEAUTIFICATION FUND REVENUE 184,000 BEAUTIFICATION DEPARTMENT 105-0015-539.6400 CAPITAL EQUIPMENT - 3,833 3,833 AMENDED BEAUTIFICATION DEPARTMENT BUDGET 184,000 STORM DRAINAGE FUND - DEBT SERVICE 201-0040-582.7200 INTEREST EXPENSE - 1,150 1,150 201-0040-582.9900 RESERVE 6,300 (1,150) 5,150 AMENDED STORM DRAINAGE FUND - DEBT SERVICE BUDGET 6,300 CAPITAL PROJECTS FUND REVENUE 301-380.5000 TRANSFER FROM GENERAL FUND 138,405 135,582 273,987 AMENDED CAPITAL PROJECTS FUND REVENUE BUDGET 273,987 BDGTXFER.XLS CITY OF CAPE CANAVERAL BUDGET TRANSFERS FOR THE THREE MONTHS ENDING DECEMBER 31, 1996 LINE ITEM ACCOUNT 10/01/96 BUDGET 12/31/96 NUMBER NAME BALANCE AMENDMENTS BALANCE CAPITAL PROJECTS FUND 301-0025-513.6440 CAPITAL EQUIPMENT - ADMINISTRATION - 14,995 14,995 301-0025-522.6400 CAPITAL EQUIPMENT - SHERIFF'S DEPARTMENT 38,320 58,000 96,320 301-0025-522.6440 CAPITAL EQUIPMENT - FIRE DEPARTMENT 8,000 (792) 7,208 301-0025-541.6460 CAPITAL EQUIPMENT - STREET DEPARTMENT 16,500 438 16,938 301-0025-572.6440 CAPITAL EQUIPMENT - RECREATION FRDAP GRANT - 47,748 47,748 301-0025-572.6450 CAPITAL EQUIPMENT - RECREATION DEPARTMENT 38,065 15,193 53,258 AMENDED CAPITAL PROJECTS FUND BUDGET 273,987 CAPITAL EXPANSION FUND REVENUE 302-300.1050 CASH FORWARD - GENERAL GOVERNMENT - 2,991 2,991 AMENDED CAPITAL EXPANSION FUND REVENUE BUDGET 75,001 CAPITAL EXPANSION TRUST FUND 302-0026-519.6000 CAPITAL EXPANSION - GENERAL GOVERNMENT - 16,991 16,991 302-0026-519.9900 CONTINGENCY - GENERAL GOVERNMENT 14,000 (14,000) - AMENDED CAPITAL EXPANSION TRUST FUND BUDGET 75,001 SEWER FUND REVENUE 401-300.1000 CASH FORWARD - 31,385 31,385 401-361.1410 INTEREST INCOME - WATER REUSE ESCROW - 400 400 401-361.1420 INTEREST INCOME - WATER REUSE RESERVE - 600 600 401-361.1430 INTEREST INCOME - WWTP ESCROW - 1,600 1,600 401-361.1440 INTEREST INCOME - WWTP RESERVE - 1,000 1,000 401-361.1450 INTEREST INCOME - WW CONSTRUCTION FUND - 700 700 AMENDED SEWER FUND REVENUE BUDGET 3,555,685 SEWER FUND - NON -DEPARTMENTAL 401-0019-901.6440 EXPANSION FUND COSTS - 20,000 20,000 401-0019-901.6510 TOWER BOULEVARD PAVING AND CONSTRUCTION - 52,002 52,002 401-0019-901.9900 CONTINGENCY 36,317 (36,317) - AMENDED SEWER FUND - NON -DEPARTMENTAL BUDGET 2,467,900 BDGTXFER.XLS 2 Meeting Type: Regular Meeting Date: 02-04-97 AGENDA Heading Considerations Item 4 No. The original contract executed on 02/16/93 with Hartman & Associates had the start-up assistance and O&M AGENDA REPORT CITY COUNCE , OF THE CITY OF CAPE CANAVERAL SUBJECT: AUTHORIZE THE PREPARATION OF A WWTP OPERATIONS & MAINTENANCE MANUAL DEPT./DIVISION: WWTP/PUBLIC WORKS Requested Action: That the City Council consider authorizing Hartman & Associates the task of preparing an operations & maintenance manual for the WWTP in the amount not to exceed $20,000. Summary Explanation & Background: The FDEP permit for this facility requires that an operations & maintenance manual be made available (6) months from the 12/23/96 permit date (page 14 of permit). The original contract executed on 02/16/93 with Hartman & Associates had the start-up assistance and O&M manual as an hourly task. $20,000 has been budgeted for this task with the 3 % loan from the state. . I recommend approval. Exhibits Attached: HAI Proposal/Page 15 of the original contract City Manager's Office i"m-ll /J -C Department I ::,,aminNcmw;►az-04-.aa January 24, 1997 Mr. Bennett C. Boucher City Manager City of Cape Canaveral Post Office Box 326 Cape Canaveral, Florida 32920-0326 Subject: Proposal for Engineering Services WWTP Operations & Maintenance Manual Dear Mr. Boucher: ASSOCIATES: William D. Musser, P.E. Scott C. Quinlan, PE. Timothy A. Hochuli, P.E. Marco H. Rocca, C.M.C. J. Richard Voorhees. PE. Douglas P. Dufresne. P.G. Richard C. Copeland, M.B.A. HAI #92-288.00 As requested, Hartman & Associates, Inc. (HAI) is pleased to submit this proposal to assist the City of Cape Canaveral in preparing an operation and maintenance (O&M) manual for the newly constructed City wastewater treatment plant (WWTP). In addition, HAI will assist the City and its staff in the start-up and training of the operators for the WWTP facilities. The Scope of Services for this project will consist of providing professional engineering consulting services to prepare an O&M manual for the City's WWTP to supplement the O&M manuals and information supplied by the individual equipment suppliers. The operation manual will cover areas such as normal operation, emergency procedures and bypassing of treatment units, process control, design intent, unit sizing and capacities, recommended testing and laboratory analysis, permit requirements, and maintenance checklists. The Scope.of services for the start-up of the plant will consist of multiple visits to the site for observation of operation, training of operators and submissions of all required certificates to the appropriate regulating agencies. Due to the nature of the services to be performed on this project, HAI proposes to base our billings on an Hourly Rate basis. An initial estimate of the manpower and costs will be prepared for your approval prior to proceeding with any task for this project. HAI proposes a not -to - exceed cost for the project of $20,000 without further authorization from the City. 201 EAST PINE STREET - SUITE 1000 - ORLANDO, FL 32801 TELEPHONE (407) 839-3955 - FAX (407) 839-3790 ORLANDO FORT MYERS FORT PIERCE JACKSONVILLE TALLAHASSEE I-IARTMAN & ASSOCIATES, INC. PRINCIPALS: James E. Christopher, PE. engineers, hydrogeologists, surveyors & management consultants Charles W. Drake. P.G. Gerald C. Hartman. P.E. Mark 1. Luke. PL.S. Mark A. Rynning, P.E. Harold E. Schmidt.Jr. P.E. January 24, 1997 Mr. Bennett C. Boucher City Manager City of Cape Canaveral Post Office Box 326 Cape Canaveral, Florida 32920-0326 Subject: Proposal for Engineering Services WWTP Operations & Maintenance Manual Dear Mr. Boucher: ASSOCIATES: William D. Musser, P.E. Scott C. Quinlan, PE. Timothy A. Hochuli, P.E. Marco H. Rocca, C.M.C. J. Richard Voorhees. PE. Douglas P. Dufresne. P.G. Richard C. Copeland, M.B.A. HAI #92-288.00 As requested, Hartman & Associates, Inc. (HAI) is pleased to submit this proposal to assist the City of Cape Canaveral in preparing an operation and maintenance (O&M) manual for the newly constructed City wastewater treatment plant (WWTP). In addition, HAI will assist the City and its staff in the start-up and training of the operators for the WWTP facilities. The Scope of Services for this project will consist of providing professional engineering consulting services to prepare an O&M manual for the City's WWTP to supplement the O&M manuals and information supplied by the individual equipment suppliers. The operation manual will cover areas such as normal operation, emergency procedures and bypassing of treatment units, process control, design intent, unit sizing and capacities, recommended testing and laboratory analysis, permit requirements, and maintenance checklists. The Scope.of services for the start-up of the plant will consist of multiple visits to the site for observation of operation, training of operators and submissions of all required certificates to the appropriate regulating agencies. Due to the nature of the services to be performed on this project, HAI proposes to base our billings on an Hourly Rate basis. An initial estimate of the manpower and costs will be prepared for your approval prior to proceeding with any task for this project. HAI proposes a not -to - exceed cost for the project of $20,000 without further authorization from the City. 201 EAST PINE STREET - SUITE 1000 - ORLANDO, FL 32801 TELEPHONE (407) 839-3955 - FAX (407) 839-3790 ORLANDO FORT MYERS FORT PIERCE JACKSONVILLE TALLAHASSEE Mr. Bennett C. Boucher January 24 1997 Page 2 If you have any questions or comments, please feel free to contact Gary ReVoir or me at any time. %Wi t n eV4 Witness Witness Witness CCA/dt/P-5Boucherl.cca Enclosures cc: Gerald C. Hartman, P.E., HAI Gary J. ReVoir H, P.E., HAI Very truly yours, Hartman & Associates, Inc. Harold E. Schmidt, Jr., . Vice President City of Cape Canaveral Authorized Signature Date ATTACHMENT A GENERAL PROVISIONS Attached to and made a part of LETTER AGREEMENT, dated January 24, 1997, between the City of Cape Canaveral (OWNER) and Hartman & Associates, Inc. (ENGINEER) in respect of the Project described therein. SECTION 1 - BASIC SERVICES OF ENGINEER 1.1 After written authorization to proceed, ENGINEER shall perform the following professional services: 1.1.1. Consult with OWNER to clarify and define OWNER's requirements for the Assignment and review available data; 1.1.2. Advise OWNER as to the necessity of OWNER's providing or obtaining from others special services and data required in connection with the Assignment and assist OWNER in obtaining such data and services; 1.1.3. Provide analyses of OWNER's needs with evaluations and comparative studies of prospective solutions; 1.1.4. ENGINEER shall prepare the O&M Manual and furnish five (5) copies of the Manual to the OWNER and review it in person with OWNER- 1.2. WNER 1.2. The duties and responsibilities of ENGINEER described above are supplemented and amended as indicated in Attachment "B," "Scope of Services" which is attached to and made a part of the Agreement. SECTION 2 - ADDITIONAL SERVICES 2.1. If authorized in writing by OWNER, Additional Services related to the Assignment will be performed by ENGINEER for an additional professional fee. SECTION 3 - OWNER'S RESPONSIBILITIES OWNER shall do the following in a timely manner so as not to delay the services of ENGINEER: 3.1. Provide all criteria and full information as to OWNER's requirements for the Assignment and designate in writing a person with authority to act on OWNER's behalf on all matters concerning the Assignment; 3.2. furnish to ENGINEER all existing studies, reports and other available data pertinent to the Assignment, obtain or authorize ENGINEER to obtain or provide additional reports and data as required, and furnish to ENGINEER services of others required for the performance of ENGINEER's services hereunder, and ENGINEER shall be entitled to use and rely upon all such information and services provided by OWNER or others in performing ENGINEER's services under this Agreement; 3.3. arrange for access to and make all provisions for ENGINEER to enter upon public and private property as required for ENGINEER to perform services hereunder-, 3.4 perform such other functions as are indicated in Attachment "B," " Scope of Services"; and 3.5. bear all costs incident to compliance with the requirements of this Section 3. SECTION 4 - PERIOD OF SERVICE 4.1. ENGINEER's Basic Services will be performed and the O&M Manual submitted within the time period or by the date stipulated in Attachment "B," "Scope of Services." 4.2. ENGINEER's Basic Services under this Agreement will be considered complete at the earlier of (1) the date when the Manual is accepted by OWNER or (2) thirty days after the date when the Manual is submitted for final acceptance, plus in each case, if applicable, such additional time as may be considered reasonable for obtaining approval of governmental authorities having jurisdiction to approve the Manual. 4.3 ENGINEER's Additional Services will be performed and completed within the time period agreed to in writing by the parties at the time such services are authorized. CCA/dt/P-5/gen l.cca HAI#92-288.00 -1- 012497 4.4. If any time period within or date by which any of ENGINEER's services are to be completed is exceeded through no fault of ENGINEER, all rates, measures and amounts of compensation and the time for completion of performance shall be subject to equitable adjustment. SECTION 5 - PAYMENTS TO ENGINEER 5.1. Methods of Payment for Services of ENGINEER- 5.1.1 NGINEER 5.1.1 For Basic Services. OWNER shall pay ENGINEER for all Basic Services rendered under Section 1 (as amended and supplemented by Attachment "B," "Scope of Services") as follows: 5.1.1.1. On hourly basis. 5.1.2. For Additional Services. OWNER shall pay ENGINEER for all Additional Services rendered under Section 2 on the basis agreed to in writing by the parties at the time such services are authorized. 5.1.3. Reimbursable Expenses. In addition to the payments provided for in paragraphs 5.1.1. and 5.1.2, OWNER shall pay ENGINEER the actual costs (except where specifically provided otherwise) of all Reimbursable Expenses incurred in connection with all Basic Services and Additional Services. Reimbursable expenses mean the actual expenses incurred by ENGINEER or ENGINEER's independent professional associates or consultants directly or indirectly in connection with the Project, such as expenses for: transportation, and subsistence incidental thereto, reproduction of the manuals, toll, telephone calls and postage. 5.2. ENGINEER shall submit monthly statements for Basic and Additional Services rendered and for Reimbursable Expenses incurred. OWNER shall make prompt monthly payments in response to ENGINEER's monthly statements. 5.3. ENGINEER's above charges are on the basis of prompt payment of bills rendered and continuous progress of the work on the Assignment until submission of the Report. 5.4. If OWNER fails to make any payment due ENGINEER for services and expenses within thirty days after receipt of ENGINEER's statement therefor, the amounts due ENGINEER will be increased at the rate of 1% per month from said thirtieth day, and in addition, ENGINEER may, after giving seven day's written notice to OWNER, suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses and charges. SECTION 6 - COST CONTROL 6.1. OWNER's budgetary requirements and considerations in respect of the Assignment are set forth in Attachment "B," "Scope of Services". SECTION 7 - GENERAL CONSIDERATIONS 7.1. All documents prepared or furnished by ENGINEER (and ENGINEER's independent professional associates and consultants) pursuant to this Agreement are instruments of service and ENGINEER shall retain an ownership and property interest therein. OWNER may make and retain copies for information and reference; however, such documents are not intended or represented to be suitable for reuse by OWNER or others. Any reuse without written verification or adaptation by ENGINEER for the specific purpose intended will be at OWNER's sole risk and without liability or legal exposure to ENGINEER, or the ENGINEER's independent professional associates or consultants, and OWNER shall indemnify and hold harmless ENGINEER and ENGINEER's independent professional associates and consultants from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Any such verification or adaptation will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 7.2 The obligation to provide further services under this Agreement may be terminated by either party upon thirty days' written notice in the event of substantial failure by the other party to perform in accordance with the terms thereof through no fault of the terminating party. In the event of any termination, ENGINEER will be paid for all services rendered and Reimbursable Expenses incurred to the date of termination and, in addition, all Reimbursable Expenses directly attributable to termination. CCA/dt/P-5/genl.cca HAI#92-288.00 -2- 012497 7.3. 1. OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ENGINEER (and to the extent permitted by paragraph 7.3.2 the assigns of OWNER and ENGINEER) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of each party, in respect of all covenants, agreements and obligations of the Agreement. 7.3.2. Neither OWNER nor ENGINEER shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent ENGINEER from employing such independent professional associated and consultants as ENGINEER may deem appropriate to assist in the performance of services hereunder. 7.4 Nothing under the Agreement shall be construed to give any rights or benefits in the Agreement to anyone other than OWNER and ENGINEER, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and ENGINEER and not for the benefit of any other party. CCA/dt/P-5/genl.cca HAI#92-288.00 -3- 012497 ATTACHMENT "B" SCOPE OF SERVICES A. Operation and Maintenance (O&M) manual for the 1.8 MGD AWT WWTP will be prepared and shall include: Introduction The purpose of the O&M manual, a guide to manual use, and the general responsibilities of the WWTP manager and operator, will be described in this section. In addition, available training and recommended publications and references relating to the WWTP operation will be provided. An overall site plan depicting major process equipment location will also be included in this section. 2. Permits and Regulations The local, state, and federal permits required for the construction and operation of the WWTP will be attached and discussed in this section. 3. Records and Reports The plant physical records including engineering and equipment data, plant operating records including control, laboratory, and maintenance records, plant administrative records, and plant reports both recommended and required by the FDEP regulations will be described by HAI in this section of the O&M manuals. Figures will be provided to be used as record-keeping forms. 4. Personnel The general recommended and FDEP-regulated staffing requirements along with recommended process training, laboratory training, and operator certification will be outlined by HAI in this section. 5. Description. Operating, and Control of Wastewater Treatment Facilities The description, function, operating instructions, pertinent data and drawings for each major equipment item and process shall be provided. HAI will also include an equipment checklist detailing routine operator responsibilities for each item of equipment. A table including a numeric coding system and an alphabetic system will be provided to be utilized as the process equipment numbering system. Wiring diagrams for process equipment will be located in this section. CCA/dt/P-5/scope 1. cca HAI# 92-288.00 012497 ATTACHMENT "B" SCOPE OF SERVICES (cont'd) 6. Process Instrumentation and Control System The instrumentation and control system layout and strategies will be discussed. Manual back-up and system over -ride sequences will also be provided by HAI. Figures will be provided outlining the plant process instrumentation and control system. 7. Utilities Plant utilities provided at the site will be discussed with respect to equipment, control, operation, and maintenance. Plant utilities such as the plant electrical system, plant water system, and plant sanitary sewer system will be discussed in this section of the O&M manuals. 8. Laboratory Testing and Sampling A basic overview of the recommended and required general laboratory testing and sampling parameters and procedures will be provided by HAI in this section. 9. Maintenance The WWTP maintenance record system, preventative maintenance system, equipment lubrication requirements, corrective maintenance system, and parts inventory system will be recommended by HAI in this section. 10. Emergency Operating and Response Program A general description of the program objectives, preparation of a vulnerability analysis, and program implementation will be provided by HAI in this section. The program implementation includes identifying an emergency response center, detailing personnel requirements, responding to natural emergencies, power failures, equipment breakdowns or process failures, chemical leakage, distribution system emergency situations, and emergency equipment and materials inventory. 11. Safety The plant safety management, emergency phone numbers, safety equipment, electrical hazards, mechanical equipment hazards, health hazards, chlorine hazards, and laboratory hazards will be discussed in this section. A summary table including the plant safety equipment will also be provided. CCA/dt/P-5/scope 1. cca HAI# 92-288.00 012497 ATTACHMENT "B" SCOPE OF SERVICES (cont'd) The equipment operation and maintenance for the wastewater treatment plant and reclaimed water reuse transmission system will all be included as separate volumes of one O&M manual. Several volumes of the O&M manuals will consist of suppliers' operation and maintenance manuals for each piece of mechanical and electrical equipment. Also included in the suppliers' O&M manuals are the specific warranties for each item. These volumes of the O&M manuals will be prepared by the Contractor as specified by HAI. The final volume of the O&M manual will be prepared by HAI and will consist of the items outlined above and will include the physical facilities and operation of the wastewater treatment plant in one volume. HAI will provide the necessary number of documents and conduct review meetings at the 90 percent complete stage of this task. Following the City's review of each of these submittals, a review meeting will be held to discuss concerns and/or comments that the City may have regarding these submittals. HAI will then incorporate the comments received from the City regarding the 90 percent submittal and provide the City with five (5) copies of the final O&M manuals. B. Start-up for the 1.8 MGD WWTP will consist of the following tasks: In company with the City, visit the WWTP to observe any apparent defects in the completed construction, assist the City in consultations and discussions with the Contractor concerning correction of such deficiencies, and make recommendations as to replacement or correction of defective work. 2. Visit site on up to six (6) separate occasions for a period of one (1), 8 -hour day each within the first three months following the startup of the proposed facilities to observe operations of the completed project and consult with City concerning the correction of deficiencies. Visits will be coordinated with the City. - Visit site once prior to the end of the first year (Contractor's warranty period) of operation following final completion of construction. Assist City with arranging for the Contractor to correct deficiencies and warranty items prior to the release of the Contractor's bonds and the expiration of the equipment warranties. 4. Prepare and submit certifications of completion of construction as may be required by the regulatory agencies issuing permits for the project. CCA/dt/P-5/scope 1. cca HAI# 92-288.00 012497 IV. COMPENSATION FOR ENGINEER'S SERVICES The City shall pay Hartman & Associates, Inc. (HAI) for the services described in Section II of Authorization No. 1 on the basis of unit hourly rates for all personnel assigned to the project and reimbursement of subconsultant fees and direct costs as detailed in the Contract. Task Description Task Budget W-1 Wetland Conceptual Design and Site Evaluation $10,000 W-2 Baseline Water Quality Collection 33,000 W-3 Preliminary Wetland Design 40,000 W-4 Wetland Permitting Activities(l) 16,000 W-5 Final Wetland Plan and Specifications (Soils, Survey, Aerials) 100,000 W-6 Contract Bidding and Award 6,000 W-7 Wetland Construction(2) 30,000 W-8 Wetland Surveillance and Monitoring Plan Hurl Subtotal(l) 235 000 WWTP-1 FDER Coordination and Data Analysis $3,600 WWTP-2 Water Quality Review 2,000 WWTP-3 Preliminary Design 30,000 W1YVTP-4 Permitting Activities(l) 10,000 WWTP-5 Final Design (Soils, Survey, Aerials) 170,000 WWTP-6 Bidding and Award 7,000 WWTP-7 Construction Management(2) 371400 WWTP-8.:- Start-up and Operational Assistance - Hurl. Subtotal(l) $260,000 GS -1 Value Engineering Wetlands (Best(3)) $9,000 GS -2 Value Engineering WWTP (Vesilind/Schmidt) 4,640 GS -3 Renewal of Revolving Loan Fund Application 5,700 GS -4 Port Negotiations 5,760 GS -5 Special Services as Required Hourly Subtotal $25,100 TOTAL UP -SET LIMIT $520,100 (1) Excludes tasks W-8, WWTP-8 and GS -5, which would be accomplished on an hourly basis and excludes permit application fees which are subject to change. GCH/ch A-2/Cavavrl. No 1 -15- --- Meeting Type: Regular Meeting Date: 02-04-97 �EtwF — YEAAL AGENDA Hadmg Considerations Item 5 No. An appropriation of beautification funds is recommended for this project. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: APPROPRIATION OF BEAUTIFICATION FUNDS TO LANDSCAPE THE TOWER BLVD. MEDIANS AND ANNUAL NIAINTENANCE COSTS DEPT./DIVISION: BEAUTIFICATION/PUBLIC WORKS Requested Action: That the City Council consider the appropriation of $1,195 for the landscaping of the Tower Blvd. medians and maintenance costs. Summary Explanation & Background: Staff received a quote from Nick's Landscaping Service to landscape the Tower Blvd. medians in the amount of $1,195 and the annual mowing and trimming cost is estimated at $1,800. An appropriation of beautification funds is recommended for this project. Please advise. Exhibits Attached: Nick's proposals City Manager's Office Department c: ;► az o4 vIAOWWAOC Landsc�,ping 13rQkA'-S W Quality Interior & Fxteric,r Greenery Cypross 8. Pifle Bark Mulch Parkirg Lot Sweeping M H C [X 1 Z9-�) Interior and Exterior Landscape Maintenance 140 N. Tropical mail, M1 Merritt island, FL 320113 i " Phone 4,53-6910/453-6914 FAX 45x,3409 CITY OF CAFE CANAVERAL, Cape Canaveral, FL. 21 January x,997 Attn: Kay McKee Please review the following proposal offered by Nick'S Lawn Service, Inc., hereafter referred to as NLS. All work is guaranteed to be done as specified and will be completed in a Professional manner, WORK TO BE COMPLETED AT ENTRANCE TO DISCOVERY BAY, 1. 3rd Island off of AIA. Tear out and install 1.5 pallets of sod. Total: $234.00 2. 2nd Island off of AIA. Tear out. and install 2.3 pallets of sod. $350.00. Install Cypress mulch. $58.00 Total: $408.00 3.., 1st Island off Of AlA. Tear out and i.nst.al.l. 4 pallots of sod. $560.00 Install. 5 yards of Cypress mulch. $145.00 Total: $705.00 NOTE: On 21 Jan 97, I spoke with Bill Young of Discovery Bay, he ` Prefers all sod and no mulch on the first island. t; 1 4. lst Island off of AIA. Tear out and .install sod only. Total.: $611.10 `�, IRRTGATION SYSTEM SHOULD BE INSTALLED BEFORE SODDING. 6. ELECTRICAL, WIRING SHOULD BE REMOVED BEFORE TEAR OUT IS STARTED. L rr .. 'Q We hereby agree to provide the labor and equipment to comj)l.e•tt? the work in accordance with the before mentioned speci,fications- 'o Date Signature Date Signature This contract is not valid unloss it is returned to Nick's Lawn Serive, Inc. within 7 working days. I Landscaping Brokers of Quality lnterior & Fxterior Greenery Cypress & pine Berk Mulch Parking Lot Sweeping CITY OF CAPE CANAVERAL Cape Canaveral, FL. Attn: Kay McKee K]HCWPg LNI Interior and Exterior Landscape Maintenance 28 January 1997 Please review the following proposal offered by Nick's Lawn Service, Inc., hereafter referred to as NLS. All work is guaranteed to be done as specified and will be completed in a professional manner. WORK TO BE COMPLETED ON ISLANDS AT ENTRANCE TO DISCOVERY NAY OFF A1A. pig I! LAWN MAINTENANCE: 1. 35.00 PER CUT - WHICH INCLUDES MOWING, WEEDEATING, EDGING AND POWER BLOWING. 2. 50.00 PER HEDGE TRIMMING, We hereby agree to provide the labor and equipment to complete the work in accordance with the before mentioned specifications, it kcD Da e Signature Date Signature This contract is not valid unless it is returned to Nick's Gavin Serive, Inc. within 7 working days. Meeting Type: Regular Meeting Date: 02-04-97 t UKtwF YERAL AGENDA Heading Resolutions Item 6 No. Please advise. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: RESOLUTION NO. 97-04, URGING THE FLORIDA LEGISLATURE TO CREATE A DEDICATED FUNDING SOURCE FOR STATEWIDE BEACH MANAGEMENT AND BB103 DEPT. /DIVISION: LEGISLATIVE Requested Action: That the City Council consider the adoption of Resolution No. 97-04. Summary Explanation & Background: Mr. Stan Tait, President of the Florida Shore & Beach Preservation Association, is urging coastal cities and counties to adopt a resolution supporting HB103 that will generate approximately $20 million annually to insure state matching money is available for beach erosion projects. Please advise. Exhibits Attached: FSBPA Fact Sheet/Resolution No. 97-04 City Manager's Office An- Department g:\adwinNc--il\--insW2-04-97197-04.dw RESOLUTION NO. 97-04 A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, URGING THE 1997 FLORIDA LEGISLATURE TO CREATE A DEDICATED FUNDING SOURCE FOR STATEWIDE BEACH MANAGEMENT AND SUPPORTING HOUSE BILL 103. WHEREAS, beaches are Florida's number one tourist attraction, generating more than $16 billion annually to the state's economy; and WHEREAS, wide sandy beaches are the first line of protection against hurricanes and can reduce damage to coastal properties by more than 50%; and WHEREAS, the Department of Environmental Protection estimates that at least 276 miles of Florida's sandy beaches are experiencing critical erosion, a situation which is hurting both tourism and storm protection along both coasts; and WHEREAS, average appropriations over the last five years have been less than $9million, resulting in long delays in urgently needed beach preservation projects; and WHEREAS, House Bill 103 in the 1997 Legislature will create a dedicated funding source for statewide beach management of approximately $30million annually from cruise ship passengers embarking and debarking in Florida. NOW, THEREFORE, BE IT RESOLVED, that the City council of the City of Cape Canaveral, Florida, that: Section 1. This Council strongly urges the Florida Legislature to enact HB 103 or any other legislative effort to provide long-term dedicated funding for Florida's beaches. Section 2. A copy of this resolution shall be provided to all members of our local delegation in the Florida Legislature and to the Florida Shore & Beach Preservation Association. Section 4. This resolution shall become effective upon its adoption. City of Cape Canaveral Resolution No. 97-04 February 4, 1997 Page 2 ADOPTED BY the City Council of the City of Cape Canaveral, Florida, this 4th day of February, 1997. ATTEST: John K. Porter, MAYOR FOR AGAINST BURT BRUNS TONY HERNANDEZ Sandra Rozar Sims, CITY CLERK BUZZ PETSOS JOHN PORTER ROCKY RANDELS APPROVED AS TO FORM: Kohn Bennett, CITY ATTORNEY d:\Citycl—l\cityclk\res\beaches.doc 01/28/97 TLTE 14:34 FAX 4077838817 1 -` s-1 !D'`--47 1 : CaE-471M FROM COCOA OA BCH -ADM T 1,A ao7sea�22b ao;)ar7 Dain W1:v2r::ry J[ F7C"i00 vt:.f c+i.3:IItulav Brian Ftyru Baa county SECRETARY- MA5URFr7 Roman cCPxgar C per' S.Can ounhpr P&MDBrtT Sregti c%t !oucncssec G1RECT0.25 kicharc 00%ns Ekt5va6fY of SO4 rt 7onac Bfidsa r��r'vr�1 y V�NLrsbtvg BSA slave kO: Gas h�d;�.5 ��.W11 cS�cr, 40•.nry r.ttiiti�4:. ra�cwrC+ LaL' Gee r.crta� ":ncc kc�p laan� +ulrariry Gt3'ScR:Yx1 �gt�1 NK.ham 5,tra'1g= fioY4o .+aL�-re U .w&rsrly Jtix1n wC$.�r l-7rc!'.�el r'Dl3Rar: P E, r:o neo •.Er ntre,rla! EX OFFICIO Flcfica OE? E=:2 salsas Ca Rs or Erc:n. r rs icer+ Crnsr�n-ae Etrk O+tias, Tann SBr,Ou.-r err 12#z.AM Ea7jRrTW AIIZ'f) Ten $rats sz.nuDel lsland FLORIDA SHO! � LIE �• �� G I$G{ysUL* C' 4^i.'., ... 'E f January 16, 1997 To: Coastal City and County Managers From: Stan Tait, President, FSBPA Re: Beach funding X1002 R- 1 Ecr• Poe. ;k ern,+c TcikXrQssaa. 00,igo -)Z=j 0433 7 ?22}-7677,_ (CO41 $p[ -t 172 r -Ag G its ,i Y S, A bill has bore introduced in the Legistature by Representati'.- , --mus Jones to provide a dedi cared handing source for beach prea2ry axion projects. HU103 will ZrnGratr some S30 million nrYnualiv to insuresi-►rc neatci><ina Im nev is available when wou need it for vour crific.-4 L.e•ar"to erosion nroiects The funding source is a $5 embarkation and d4tiat k4lLioa(succharge on cruise ship p: ci-t U; uy[rl 1'l4rlda purr. �a rflL� i of r- i 0 for 1--nos-E patses►gtrs oil cruises over 24 hours) The key to passing this bill is strong support fr onk 3oc;d Qovernments such a5 Yours Who will be the beneficiaries - Therefore this association, which functions as a ''league ofc4ias and counties" on beach issues, urgently asks you and your commission so: I- Strongly endorse this bill .end tuaka it a Isiglr priority on your 1997 legislative agenda_ (samph:- resolution e■iclosed) 2. Contact your legislative delegation and ask them to sut s ort this bill or any other Legislative efforts to ravide lona term dedic sited furlding for Florid; 1s. be -,cities For the first time in our history, we have an oppottuviity to salve our ftAnding problem. Lct's not lcT this opportunity slip away_ Our beaches are Plorida's .#1 tourist attraction and a vital part of the stare's econcsrny, z If you need additional information or a copy of the bill, please call lase at (904) 222-7677. Caine„/sJ �a Post rh Fax Nate 7671 Wig■ 9.6 "� H14 lib —�z c 01/28/97 15:33 TX/RX N0.8164 P.002 0 01/28/97 TUE 14:34 FAX 4077838817 1 —28-1 ,_497 1 - Clb-'Ptl FROM CQC0A EACH—ADMIN 4077S68Z226 "ACRES it �y • k 4 ° d,�: HE 103, Representative Dennis ,zones Sia WHAT 'THE BILL DOES 1_ Levies a stale surcharge on cruise scup passengers when they embark ar debark from Florida ports. Fee schedule is: -- cruises over 24 hours: $s_00 -- erui --ez under 24 hours: $1.44 2- Estimated Manual ia.coxua to the state B- S27 million. (based on 199495 figures.) -- S =iMort cmba;)i[ativuS/debarkations ovem 24 honr5 = a25 miMaxL -- 2 million embas]ctxtioas/dCbarisations under 24 hours = $2 mslTioa 3. Fe:e -0-Uld be purr is the state Ee:asystem Riaxcagtmeat and Restarstion Trust Furtd for repair and xnaixtteaance of Marsda's beaches and fox eaha�rxcca4c�rs to the bench enviroument by. FFosida's deep Prates pests. 4. Phis bill would free up general xevcnue funds exu-rently allocated to the state's beach managemf-nt program. IMPORTAIMCE CF BEACARS To FLORIDA S ZC0M<> Y 1. Reaches are FlOCIda'S aum>beT oMR4 tCrQTier- ''attVWCtioa-` sales g4=Crate mote ti?ays S1S billion to tine States cconamy_ (on atirefage, beach tourists stay four days longer and spend more per capita than tlL*se goitag to other Plarida destivationa) 2_ DEP estimates that at least 276 r=iles of Florida's 787 xailes of tsan,dy beaches frozStCiag the Atlantic or Gaff ar¢--wpersencing critical csm*lea. This Es negatively impacting toufiam. which has been relatival4 stagnant for the past five pears. Hotel 0 nars say ero$esd beaches dries array touxia'tS 'ta other daAt1n&tioas, including the Caribbean and b3cJtiCo_ S. Why the state s beach maaagdmeat proocam ti✓as eaaaeteel In ] 986, lhe. Legislateore A4Ma= recd an intent to-apprapriatr �t Least $3'S ttailiia= anauaUy" to implement the program- (Average appropriati4a5 for the last live years have b•sen $8.6 xMM1011. na.talasag ft impossible to adequately restorer and msixattaxn %lorids's beaehox.) 4. PMP est imatec that to restos¢ and m-aiataixL Flaxida's +276 mxzcs of critically -eroding beaches over the sAawt tureiaty years wM have a. notal annual cost of S9S =wioa- if &truant federal and Iocal cost-sharing formulas ars maintained, the state's annual cost Witt be between $30 and SSs m=illion, reinforelug the vassota OK loss Beate (Only 145 of the stat a'3 276 miles of Ueaches arc aaRcat%r be itsg addr�.szd by the state's beach manag ruxeot progXaLm.) 5. For FY1997-98, local goverrsm+3IIts have requested $27-3 million in state matczLIng Bads fox beach projecCS. (Theses projects e:nfiaile:d $30 million in federal raatchiiag MMOJAcy PIUS $50.6 xt M16n is JOGal ma#ahing money, or a total of more 'thea $2 for erve;ry state doIIaY %Fcxxt.) 14 003 Fl- 2 01/28/97 15:33 TX/RX N0.8164 P.003 m 01/28/97 TITS 14:35 FAX 4077838817 4 005 1-2F,- 1 9 t - 0 7PH FROM COCOA ETH -ADMIN W78683n�g P_ 4. Another major benel`tt of Florida's beach m.anagemeat pregr-am in storm Psetectina_ Tse: prw-genee of a 10040011 crude strip of beach reduees storm damage to coastal properti,es bg mora than SO -o. 7. Beaches are the first line of procaction from Storms and hurricanes. They Protect $150 biliioa in coastal bzsilding :, if we avow Our beaches to erode away, the state and federal governments grill be st¢ck with nasecessari]F large storms reco4er7 costs. l'i'ke Cerps of $nZineexs estim=ated that strualural damage lrom Hurriaaue Opal zt P=L—h-ma City Beach would have been redueed'hy u,pwa,rds of 70% if the parading beach rrvrerashment projaat there Iaad been ¢ompleLGd.) RATrONAM AND N'r`xus Z_ Navigation inlets, including ports, are a significant carie of bcsch erasson in Florida by b104r- ag the sand floor 'that provides "a;.taral beach aaurisbmpnt_- it is sPPrepriat¢ that asaars of theses parrx 11-APr snppore. rc=edies to the beach erosiaza problem. 2. Caribbean c uize destinations typically charge x "head tam" and otb,--r fees on II.5. tourists -while the State of Tlorid:. gets nothing. Following are Port and passenger fees collected by crui-.e lines oa passengers from Florida. ports: 8a]isPaas 4 night cruise 584.30 Jamaica ? night cruise Mexico 7 nixht GSTiise 312ti.SU 3. 3+7early all the crUiZe ;%Uipa doing blasiaCsa in Florida ase registered abroad i= countries such ax Panama and Liberia. They pay virtually no U.S. or Florida t�Ar¢s_ FL shipping related laeonse, such $s craai;.c fares, is tax, exemlat. i?Rt?aiPiCTED IMPACT'S []N FLOKIDIA2S5 Fi, TFfE C1tIIj$� b��s 1_ The overwhelming majoxisy of cruise gassongers dcpart%ng from F30sida ports are residcats of the other 49 states of the U.S. or from Canada_ Thus, ralati'vtly few FYoridiftna will b.s subjact to CkLe proposod susehasgt. (Florida. with the world's thrac busiest emus- ,ports, serQes $7aont 79% of x11 Sorth American hasxxc port passenger zzao4e=&nts_( 2. The big majority of #hese out-of-state cruise passengers do not vacatiotm in Florida_ Rather, they use Florida lax merely a "way statioa" to aZ.d frnm the croIse ship. 3, The average cruise passctsger pays more than $1,000 for his/her trip dnel Spends as additional $125 at each part of cats. Camyllad br eba F.faxlda Share 4. Rc8eb Pre sertiarfar iissoalnrinxi, =,►-vague- afcirtcs and vmantleS � +'Q brach sad �taf �.�.res ! A 01/28/97 15:33 TX/RX N0.8164 P.005 0 Meeting Type: Regular Meeting Date: 02-04-97 CITY YIpA( AGENDA H—Ung Ordinance - 2nd Reading Item 7 No. Please advise. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: ORDINANCE NO. 25-96 IMPOSING A MORATORIUM ON ISSUING NEW PERMITS FOR CELLULAR, TELEPHONE OR SIMILAR TYPE COMMUNICATIONS ANTENNAS DEPT./DIVISION: PLANNING & ZONING Requested Action: That the City Council adopt this ordinance that would place a 180 -day moratorium on the issuance of new permits for cellular, telephone or similar type communications antennas. Summary Explanation & Background: The Planning & Zoning Board has recommended approval of this ordinance with a moratorium of 180 days. This moratorium will give the city time to develop zoning and permitting standards for cell phone facilities. Please advise. Exhibits Attached: Ordinance No. 25-96 Cityger's Office Deparhnent PLANNING & ZONING &:\admin,cmnci►V)24)4-97\25-96.doe ORDINANCE NO. 25-96 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY FLORIDA, IMPOSING A 180 DAY MORATORIUM ON ISSUING NEW PERMITS FOR CELLULAR TELEPHONE OR SIMILAR TYPE COMMUNICATION ANTENNAS IN THE CITY OF CAPE CANAVERAL; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, this Council has determined that recent federal legislation related to the communications industry has produced persistent current interest and is expected to produce new interest in the future in the provision of cellular communication coverage in the City of Cape Canaveral; and WHEREAS, the current Zoning Code of the City of Cape Canaveral was adopted at a time before cellular communication towers were anticipated and, therefore, appropriate siting and development standards do not exist; and WHEREAS, the uncontrolled siting of such communication towers could have significant adverse effects and cause irreparable harm; and WHEREAS, long delays and uncertainty of the permit process due to lack of clear siting and development standards is an unreasonable limitation upon the communication companies seeking to provide cellular service; and WHEREAS, it is necessary for the City to act carefully in a field with rapidly evolving technology and undertake a deliberative public process to establish policies, standards, and procedures related to the siting of antenna towers. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Cape Canaveral, Brevard County, Florida, as follows: City of Cape Canaveral Ordinance No. 25-96 Page 2 SECTION 1. That the above recitals are adopted as Findings of Fact which clearly indicate that an emergency exists and thereby justify the imposition of a 180 day moratorium on the siting of cellular telephone and similar type communication antennas or towers in the City of Cape Canaveral. SECTION 2. During the period of the City Council moratorium, the City will develop appropriate siting criteria and limitations to govern future cellular telephone and similar type communication antennas. These will, at a minimum, include potential number or density limitations for such towers in all zoning districts and on public property. Also, during this moratorium, the City will develop an appropriate permitting process for considering siting requests. The City of Cape Canaveral Planning and Zoning Board will conduct at least one (1) public hearing on the criteria or limitations and permitting process and make recommendations to the City Council SECTION 3. The tasks described in Section 2 will require approximately 180 days to complete; therefore, this Ordinance shall expire on July 6, 1997. SECTION 4. If any section, paragraph, phrase, or word of this Ordinance is held to be unconstitutional or invalid, such portion shall not affect the remaining portions hereof, and it shall be construed to have been a legislative intent to pass this Ordinance without such unconstitutional or invalid part. SECTION 5. Because it is found and declared that a public emergency exists justifying the immediate effectiveness of this Ordinance, this Ordinance shall take effect and be in full force immediately upon its passage. dAcitycl--1\cityclk\ordinanc\zoning\morator. doc City of Cape Canaveral Ordinance No. 25-96 Page 3 ADOPTED BY the City of Cape Canaveral, Florida this 4th day of February, 1997. ATTEST: Sandra O. Sims, CITY CLERK APPROVED AS TO FORM: Kohn Bennett, CITY ATTORNEY d:\citycl—l\cityclk\ordinanc\zoning\morator.doc John K. Porter, MAYOR Burt Bruns Tony Hernandez Buzz Petsos John Porter Rocky Randels FOR AGAINST First Reading: 1/14/97 Posted: 1/3/97 Publish: 1/3/97 Second Reading: 2/4/97 Publish: 1/24/97 01/23/97 11:30 'x'407 242 3546 FLORIDA TODAY This is your proof of your ad# U running in - o , p I&LICAT 'EYAY 9 OATfE If you do not have carrectlons, pt call to release your ad for publication. LOCAL F C80OM33-8449 242-3587 242-3687 . EXT. 3587 Thank You for Advertising with FLORIDA TODAY COMPOSING: TIM/cx sue 01/24 -CAPE -2X7 -R12108 - Composite [a) 001 To Insure Tim$iy Processing Of Your Ad To Meet Our .- IRress Time, Plea**rCall Or Fax Your Pertinent Corrections BEFORE DAY NOTICE OF ZONING AMENDMENT PUBLIC HEARING The City of Cape Canaveral proposes a zoning amendment to impose a 180 day moratorium on issuing new permits for cellular telephone or similar type communication antennas in the City of Cape Canaveral. The SECOND PUBLIC —HEARING on the PROPOSED ZONING MORATORIUM will be held by the City Council of the City of Cape Canaveral, on Tuesday, February 4, 1997, at 7:00 P.M. in the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. The City Council will consider the recommendations made by the City of Cape Canaveral Planning and Zoning Board by reviewing the following proposed amendment to the City's Code of Ordinances: ORDINANCE NO. 25-95 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY FLORIDA, IMPOSING A 180 DAY MORATORIUM ON ISSUING NEW PERMITS FOR CELLULAR TE'L-E'RN'OWE -OR SIMILAR TYPE COMMUNICATION ANTENNAS IN THE CITY OF CAPE CANAVERAL; PROVIDING FOR SEVERABILITY; AND -PROVIDING FOR AN EFFECTIVE DATE.-... A copy of the proposed ordinance and map is on file in the Office of the City Clerk and may be viewed during regular working hours, Monday through Friday, 8:30 a.m. to 5:00 p.m. Interested parties are invited to attend this meeting and be heard. Any person who decides to appeal any decision made with respect to any matter considered at this meeting wilt need to ensure that a vPrhntim ropnrr! e%f +k., 01/23/97 12:30 TX/RX N0.8101 P.001 0 — --.ra "" IVVVI Al VI LI III proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. FRIMY Sandra Rozar Sims, CMC City Clerk OGMIU C I -r-e OF CAPE CP#%&=P-dERPL- C: I TiZO NOT I CE OF ZON I NG PtIE 01121-897 1 1 F 09 1 FRF 01/23/97 12:30 TX/RX N0.8101 P.001 0 1-23-1997 10:31AM FROM AMARI,T-IERIAC,EISEN 407 639 6690 LAW OMCFS AMARI, THERIAC & EISENMENGER, P.A. Attorneys and Cotmaelors At lAw Richard S. Amari Kohn Bre Robert R. Berry Bradly Roger Bettie, Sr. Gregory W. Ebwnwnger Carla Nedley Fredag Aodbmy A. Garpnese !Mitchell S. Goldman George B. aw-din J. Wesley Rowxe; Jr. Mark S. Peters David M. PiwmAck James S. Theliac, III Robin A. Lloyd, Sr., Esquire Robin A. Lloyd, Sr. & Associates, F_ A. 660 Beachland Boulevard, Suite 201 Vero Beach, FL 32963 Dear Robin: P_ 2 Mariner Square Reply To. Cocoa SY6te 302 96 Willi" Street Cocoa, Florida 32922-799s Te)epboue (407} 639-LUO Wax (407) 63946M January 23, 1997 Re: Cape Canaveral )Fraxwhise Sage B104 6769 N. Wickham Road McRmume, Florida 32M TelepBomw (40Z 259.6611 Fax (407) 259-667A The City Manager has informed the that the term of the Franchise will be determined by the City Council at the Council's meeting scheduled for February 4, 1997, at 7:00 p.m. In addition, the City Manager will be recommending to the Council that it is in the. City's best interest to maintain the current definition of "Gross ,Annual Revenue,' unless City Gas can cite to any law which would preclude such a definition. Given the City Manager's position, I look forward to seeing you at the aforementioned Council meeting to discuss these issues and the remaining provisions of the proposed Franchise Agreement. AAG:aa cc: Bunn ucher (by fax) Sincerely, AMAP, THFYIAC & EISENMENGER, P.A. �Anthon A. Gargan , Esquire 01/23/97 10:32 TX/RX N0.8098 P.002 0 Meeting Type: kegular Meeting Date: 02-04-97 GIPEITWA VERAt AGENDA xadi"g Ordinance - 1st reading Item �j Ji - No. l AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: ORDINANCE NO. 01-97, GAS FRANCHISE AGREEMENT WITH NUI CORPORATION, DBA CITY GAS COMPANY OF FLORIDA DEPTJDIVISION: LEGISLATIVE Requested Action: That the City Council consider adoption of this ordinance at first reading. Summary Explanation & Background: Assistant City Attorney Anthony Garganese and I have been negotiating this agreement for quite sometime, and we recommend that the City Council proceed with the formal adoption of this agreement and forward it to NUI for execution. There are (2) points of contention; the first being the term of the agreement. NUI wants 30 years, in exchange for the new marketing strategy language in Section 3.3. Secondly, NUI opposes the definition of "gross annual revenue"; they want a narrow definition. I contend the proposed definition is fair and adequate and unless NUI can show evidence that some of their services are exempt from the assessment of franchise fees, I would recommend that council keep this proposed definition. I recommend approval at first reading. Exhibits Attached: Gas Franchise Agreement City Al n� its Office Department S:\adminXoouwH\modkg\024W97\NL4Aw ORDINANCE NO. 01-97 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, FLORIDA RELATING TO THE PROVISION OF NATURAL GAS SERVICES BY CITY GAS COMPANY OF FLORIDA WITHIN THE MUNICIPAL BOUNDARIES OF THE CITY; PROVIDING A SHORT TITLE; STATING A PURPOSE AND SEVERAL GOALS; PROVIDING A MARKETING STRATEGY; PROVIDING DEFINITIONS; GRANTING A FRANCHISE; PROVIDING A TERM AND EFFECTIVE DATE; SETTING FORTH TERMS FOR FRANCHISE OPERATION AND TRANSFER OF OWNERSHIP OR CONTROL; PROVIDING FOR FRANCHISE FORFEITURE OR REVOCATION; REQUIRING LIABILITY INSURANCE AND INDEMNIFICATION TO THE CITY; REQUIRING A PERFORMANCE BOND; PROVIDING FOR DESIGN AND CONSTRUCTION PROVISIONS; PERMITTING CITY REVIEW OF BOOKS AND RECORDS OF FRANCHISEE; PROHIBITING PREFERENTIAL OR DISCRIMINATORY PRACTICES; SETTING FORTH SERVICE STANDARDS FOR SEVERABILITY; PROVIDING FOR REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCORPORATION INTO THE CODE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Cape Canaveral, Florida is authorized to grant one or more non-exclusive franchises to construct, reconstruct, operate, and maintain a natural gas system within the City; and WHEREAS, after conducting an advertised public hearing, the City Council of the City of Cape Canaveral finds, after careful evaluation and deliberation, that the granting of a natural gas franchise to NUI Corporation, a New Jersey Corporation d/b/a City Gas Company of Florida is in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral. NOW THEREFORE, be it enacted by the City Council of the City of Cape Canaveral, Florida: Section 1. The City Council of the City of Cape Canaveral does hereby approve the franchise agreement between the City of Cape Canaveral and NUI Corporation, a New Jersey Corporation, d/b/a City Gas Company of Florida, for the period February 18, 1997 to February _ . A copy of the franchise agreement is attached hereto as Exhibit "A" and said agreement is incorporated herein by reference. The agreement shall be executed by both parties in duplicate, and the Mayor is hereby authorized to execute said agreement on behalf of the City. City of Cape Canaveral Ordinance No. 01-97 Page 2 Section 2. Severability Clause. In the event that any term, provision, clause, sentence or section of this Ordinance shall be held by a court of competent jurisdiction to be partially or wholly unenforceable or invalid for any reason whatsoever, any such invalidity, illegality, or unenforceability shall not affect any of the other or remaining terms, provisions, clauses, sentences, or sections of this Ordinance, and this Ordinance shall be read and/or applies as if the invalid, illegal, or unenforceable terms, provision, clause, sentence, or section did not exist. Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All ordinances and resolutions or parts of ordinances and resolutions in conflict herewith are hereby repealed to the extent of the conflict. Section 4. Incorporation Into Code. This ordinance shall be incorporated into the Cape Canaveral City Code and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Section 5. Effective Date. This Ordinance shall take effect immediately upon being adopted by the City Council of the City of Cape Canaveral. ADOPTED BY the City Council of the City of Cape Canaveral, Florida, this — day of 1997. ATTEST Sandra O. Sims, CITY CLERK Approved as to Form: Kohn Bennett, CITY ATTORNEY d:\citycl—l\cityclk\ordinanc\fmciiise\gasl.doc John K. Porter, MAYOR Name Burt Bruns Tony Hernandez Buzz Petsos John Porter Rocky Randels For Against First Reading: February 4, 1997 Posted: February 5, 1997 Publish: February 7, 1997 Second Reading: February 18, 1997 GAS FRANCHISE AGREEMENT THIS AGREEMENT is made and entered into as of this day of , 1997, by and between the CITY OF CAPE CANAVERAL, a Florida Municipal Corporation ("City"), and NUI CORPORATION, a New Jersey Corporation, d/b/a City Gas Company of Florida ("Company"). RECITALS: WHEREAS, the City is authorized to grant one or more non-exclusive-, franchises to construct, reconstruct, operate, and maintain a natural gas system within the City; and WHEREAS, the City of Cape Canaveral finds it in the public interest to make available within its corporate limits high-quality and reliable natural gas service; and WHEREAS, the City of Cape Canaveral finds it in the public interest to retain regulatory authority over the provision of natural gas service, to the extent allowed by law, because of the overriding public health, safety and welfare considerations associated with the provision of this service; and WHEREAS, the City of Cape Canaveral finds it in the public interest to retain control over the use of public rights-of-way by providers of natural gas to prohibit interference with the public convenience, to promote aesthetic considerations, to promote planned and efficient use of limited right-of-way space, and to protect the public investment of right-of-way property; and WHEREAS, the City of Cape Canaveral finds it in the public interest to ensure that high quality natural gas service is maintained through a responsive customer service procedure; and WHEREAS, the City Council of the City of Cape Canaveral finds that the granting of a non-exclusive natural gas franchise is the best means of assuring that the above described interests of the City of Cape Canaveral are promoted and maintained; and WHEREAS, the City, after public hearings and due evaluation, has determined that it is in the best interests of the public health, safety and welfare of the City and its residents to approve this Gas Franchise Agreement with the Company. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: I. RECITALS. 1.1 Recitals Incorporated. Each and all of the foregoing recitals are hereby incorporated herein and acknowledged to be true and correct. Failure of any of the foregoing recitals to be true and correct shall not operate to invalidate this Agreement. II. SHORT TITLE. 2.1 This Agreement shall be known and may be cited as "Cape Canaveral Natural Gas Franchise". III. PURPOSE AND GOALS. 3.1 Purpose. The City finds that the development of a natural gas distribution system has the potential of having great benefit and impact upon the people of the City. The City further finds that the public convenience, safety and general welfare can best be served by exercising regulatory powers which are vested in the City or such persons as the City shall designate. It is the intent of this Agreement and subsequent amendments thereto to provide for and specify the means to attain the best possible public interest and public purpose in the distribution of natural gas within the boundaries of the City, and this finding shall be an integral part of this Agreement. Further, the City recognizes that natural gas has, as a fuel source, the capability of providing abundant clean -burning and efficient energy to the City's residents and commercial businesses. 3.2 Goals. For these purposes, the following goals underlie the regulations and provisions contained herein: (a) Natural gas should be made available to all City residents and commercial businesses in accordance with the City Gas Company of Florida Natural Gas tariff original volume no. 4 as filed with the Public Service Commission and any amendments, modifications, or revisions thereto. (b) The natural gas distribution system should be capable of accommodating both the current and reasonably foreseeable future energy needs of the City. (c) The natural gas distribution system should be improved and upgraded, if necessary, during the franchise term so that the new facilities necessary for the operation of this system shall be integrated to the maximum extent possible with existing facilities. 3.3 Markefing,Strategy: The Company, will actively market natural gas: service to.; residences anti<bIIsinesses : of theCit k Thi Cit mai review the- Company's marketing: 2 programs.. as they pertain to the City at a time period not less than every seven: (7) years:__ Should the- City reasonably determine the Company's marketing is. inadequate,. the City may require the Company to provide a market, survey, of the City, limits.. IV. DEFINITIONS. For the purpose of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise: 4.1 "Agreement" or "Franchise" shall mean this Franchise Agreement, as amended from time to time, which shall constitute authorization, voluntarily entered into by the Company and granted by the City, for the purpose of providing the Company authorization to construct or operate a Natural Gas Distribution System in the Franchise Area. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by any city ordinance or resolution. 4.2 "City" means the City of Cape Canaveral, a Florida Municipal Corporation, its successors and assigns. 4.3 "Company" means NUI Corporation, a New Jersey Corporation, d/b/a City Gas Company of Florida, its successors and assigns. 4.4 "Franchise Areas" means all of the territory within the incorporated City, and such additional territory as may be from time to time annexed into the City. 4.5 "Gross Annual Revenue" means all receipts derived directly or indirectly from the operation of the Natural Gas Distribution System in the Franchise Area. 4.6 "Natural Gas" means natural gas in a gaseous state. 4.7 "Natural Gas Distribution System" shall mean the transmission pipelines or any related equipment, facility, or building necessary or desirable to the transportation or delivery of natural gas, or its treatment or storage during the course of transportation or delivery, under the control of the Company, for the transmission, distribution or sale of Natural Gas pursuant to this Agreement, or any part thereof. 4.8 "Public Right -of -Way" means the surface, the air space above the surface, and the area below the surface of any public street, sidewalk, bridge, waterway, utility easement, or other public property, which shall entitle the City and the Company to the use thereof for the purpose of installing and maintaining the Company's Natural Gas Distribution System. No reference herein, or in any Franchise, to the "Public Right -of -Way" shall be deemed to be a representation or guarantee by the City that its title to any property is sufficient to permit its use 3 for such purpose, and the Company shall, by its use of such terms, be deemed to gain only such rights to use property in the City as the City may have the undisputed right and power to give. 4.9 "Transfer" means the disposal by the Company, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of twenty percent (20%) or more at one time of the ownership or controlling interest in the Company, or thirty-five percent (35 %) cumulatively over the term of the Franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert or a change in control. Transfer shall not include any transfer or assignment to a person controlling, controlled by, or under the same common control as the Company. V. GRANT OF FRANCHISE. 5.1 Grant of Franchise. The Company is hereby granted a Natural Gas Franchise, subject to the terms and conditions of this Agreement. Pursuant to this Franchise, the Company may construct, operate, and maintain a Natural Gas Distribution System in, under, over, along, across or upon the Public Rights -of -Way within the City for the purpose of transmission, distribution and sale of Natural Gas for commercial, industrial, and residential use. In exercising rights pursuant hereto, the Company shall not endanger or interfere with the lives of persons, interfere with any structures, buildings, or facilities of the City, any public utility, or any other person permitted to use the Public Rights -of -Way, nor unnecessarily hinder or obstruct the free use of the Public Rights -of -Way. The grant of this Franchise does not establish priority for use.over other present or future permit, license, or utility franchise holders or the City's own use of the Public Rights -of -Way. All rights granted for the construction, reconstruction, maintenance, and operation of the Natural Gas Distribution System shall be subject to the continuing right of the City to approve such reconstruction or relocation of the Natural Gas Distribution System in the Public Rights -of -Way as shall, at the discretion of the City, be in the public interest. 5.2 Franchise Not Exclusive. The grant of this Franchise shall be non-exclusive and shall not affect the right of the City to grant to itself or any other person the right to: build, operate, or own a Natural Gas Distribution System; occupy or use the Public Rights -of -Way for the construction, reconstruction, maintenance, and operation of a Natural Gas Distribution System or for any purpose whatsoever. No privilege or power of eminent domain is bestowed on the Company by the grant of this Franchise, but this Franchise shall not be construed to limit the Company's power of eminent domain under state law. 5.3 Event of Conflict. In the event of conflict between the terms and conditions of the City Code and this Agreement, this Agreement shall control. In all events, the Company shall comply with all laws, ordinances and regulations enacted by the City pursuant to its lawful police and regulatory powers as authorized by law. This Franchise is hereby made subject to the 4 general City code provisions now in effect and hereafter made effective. Nothing in the Franchise shall be deemed to waive the requirements of the various codes of the City regarding permits, taxes, and fees to be paid. VI. EFFECTIVE DATE OF FRANCHISE; TERM. f Agreement. 6.1 Effective Date. The effective date of this Franchise shall be 6.2 Term. The term of this Franchise shall be for a period of ten years from the effective date unless sooner terminated as provided for in this The Franchise shall terminate on VII. FRANCHISE OPERATION. 7.1 Use of Public Rights -of -Way. For the purpose of operating and maintaining a Natural Gas Distribution System in the Franchise Area, the Company may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the Franchise Area such pipes, appurtenances, or related attachments or equipment and other property and equipment as are necessary to the operation of the Natural Gas Distribution System; provided, however, that the Company complies with all design, construction, safety, and performance provisions contained in this Agreement, applicable local ordinances, and state and federal law. 7.2 Right of Condemnation Reserved. Nothing herein shall limit any right the City may have to acquire by eminent domain or otherwise any property of the Company; provided, however, that any such acquisition shall be for a price that values the Company's property as allowed by law. 7.3 City's Right to Perform Public Works. Nothing in this Agreement shall be in hindrance to the right of the City or any governmental authority to perform or carry on, directly or indirectly, any public works or public improvements of any description. Should the Natural Gas Distribution System in any way interfere with the construction, maintenance or repair of such public works or public improvements, the Company shall, at its own cost and expense, protect or relocate its Natural Gas Distribution System, or part thereof, as reasonably directed by the City officials or any governmental authority. 7.4 Emergency Response. The Company shall respond promptly in the case of fire, emergency, or disaster in the City. The Company shall be responsible to take all prudent actions necessary to mitigate any hazardous impact its Natural Gas Distribution System could contribute to any fire, emergency, or disaster at it's own expense. 7.5 Removal or Abandonment. If the Company elects to remove any portion 5 of the Natural Gas Distribution System, the Company shall restore, in accordance with the directions and specifications of all affected departments and agencies of the City and all applicable law, any property, public or private, to its original condition prior to the removal of the Natural Gas Distribution System. 7.6 Time Is of the Essence. Whenever this Agreement shall set forth any time for any act to be performed by or on behalf of the Company, such time shall be deemed to be of the essence, and any failure of the Company to perform within the time allotted shall be sufficient ground for the City to invoke any applicable provision of the City Code or this Agreement. 7.7 No Waiver of Rights. No course of dealing between the Company and the City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of the Company in contravention of the City's rights, except to the extent expressly waived by the City in writing or expressly provided for in the Franchise. VIII. TRANSFER OF OWNERSHIP OR CONTROL. 8.1 Transfer of Franchise. This Franchise shall not be sold, Transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership or other means without the prior written consent of the City, and then only under such reasonable conditions as the City may establish which may include but not be limited to financial guarantees to the Natural Gas Distribution System. 8.2 Transfer Threshold. The Company shall promptly notify the City of any actual or proposed change in, or Transfer of, or acquisition by any other party of, control of the Company. 8.3 City Approval. Every change, Transfer, or acquisition of control of the Company shall make the Franchise subject to cancellation unless and until the City shall have consented thereto in writing. For the purpose of determining whether it may consent to such change, Transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical, and other public interest qualifications of the prospective Transferee or controlling parry, or the terms and conditions of the proposed change, transfer, or acquisition of control, and the Company shall assist the City in obtaining all required information. Failure to provide all reasonable information requested by the City as part of said inquiry shall be grounds for denial of the proposed change, Transfer or acquisition of control. 8.4 Signatory Requirement. Any approval by the City of Transfer of ownership shall be contingent upon the prospective assignee becoming a signatory to the Franchise. 0 IX. FRANCHISE FEES. 9.1 The Company shall pay to the City a Franchise Fee of six percent (6%) of the Gross Annual Revenues excluding bad debts, taxes and fees collected by the Company on behalf of any governmental agency. 9.2 Franchise Fees in Addition to Other Taxes or Payments. Payment of the Franchise Fee made by the Company to the City shall not be considered in the nature of a tax, but shall be in addition to any and all taxes of general applicability which are now or may be required hereafter to be paid by any Federal, State, or local law. 9.3 Acceptance by the City. Subject to applicable law, no acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim that the City may have for further or additional sums payable as a Franchise Fee under this Agreement or for the performance of any other obligation of the Company. 9.4 Failure to Make Required Payment. In the event that any Franchise Fee or recomputed amount is not made on or before the dates specified herein, the Company shall pay as additional compensation an interest charge, computed from such due date, at an annualized rate equal to the commercial prime interest rate of the City's primary depository bank during the period that such unpaid amount is owed. 9.5 Periodic Payments to Be Made. The Company shall make fee payments of monies due hereunder within thirty (30) days of the end of each calendar quarter for Franchise Fees collected during the preceding quarter. Accompanying said payment, the Company shall also provide a written report of its Gross Revenues generated in the Franchise Area for the preceding quarter's period. 9.6 City Right to Inspection. The City, at its discretion, shall have the right to inspect the Company's Gross Annual Revenue records, to audit, and to recompute any fee amounts. Inspections, audits or recomputations may be performed either by the City or an independent firm selected by the City and qualified for such purposes. No audit of the Company's records relating to Gross Annual Revenues shall take place later than thirty-six (36) months following the close of each of the Company's fiscal years. Audits that result in payment of four percent (4%) or more of Franchise Fees during the audit period, shall be at the expense of the Company. Any additional amount due to the City as a result of the audit shall be paid within thirty (30) Days of notice by the City, unless the Company disputes the results of the audit. The Company agrees to meet with the City and will attempt in good faith to resolve any differences. Thereafter, the additional amount due shall be subject to payment within thirty (30) days after said additional amount is determined to be due by the Company and the City, or the City declares an impasse in the negotiations with the Company. 9.7 Payments Due in Event of Termination or Expiration. In the event that 7 the Company continues the operation of any part or all of the Natural Gas Distribution System beyond the termination, revocation, or expiration of the Franchise granted herein, it shall continue to pay to the City the Franchise Fee in the manner set forth in this Agreement. This section sh all not be construed to authorize the operation of the Natural Gas Distribution System beyond the termination, revocation, or expiration of this Franchise. 9.8 Alternative Fee Contingencies. In the event that the Company's obligation to pay a Franchise Fee is held invalid by a decision of any court of competent jurisdiction or due to the actions of any legislative body, the Company shall negotiate with the City in good faith and shall agree, if permissible under then applicable law, to provide compensation to the City in lieu of the Franchise Fee. The amount of compensation shall, to the extent permitted by applicable law, as amended from time to time, be comparable to that which the Company would pay as the Franchise Fee under the terms of this Agreement and shall be passed through to the natural gas customers in a manner similar to the Franchise Fee. 9.9 Other Fees and Taxes. To the extent that any federal or state law or regulation may now forbid the City from assessing any type of fee or tax, upon repeal, modification, or judicial/administrative interpretation of said law or rule that would permit the City to assess said fee or tax, the City shall have the right to assess said fee or tax to the full extent authorized by law; provided, that the City shall first consult with the Company. Upon such occurrence, the parties shall meet and confer within ninety (90) Days of notice from the City to in good faith negotiate Franchise provisions to implement the collection of said fee or tax. X. FORFEITURE OR REVOCATION. 10.1 Grounds for Revocation. The City reserves the right to revoke any Franchise granted hereunder, pursuant to the procedure in paragraph 10.4, and rescind all rights and privileges associated with the Franchise in the following circumstances, each of which shall represent a default and breach of this Agreement: (a) Company has defaulted in the performance of any of the material obligations under this Agreement or any provision of the City Code not conflicting with this Agreement; (b) Company has failed to provide or maintain in full force and effect the liability and indemnification coverage as required herein; (c) Company has violated a material provision of any orders or rulings of any regulatory body having jurisdiction over the Company relative to this Agreement and any regulatory ordinance of the City, and the Company fails to begin cure within five (5) business days of notice from the City and to complete cure within a reasonable time after notice, as determined by the City; customers; (d) Company has committed any act of fraud upon the City or natural gas (e) Company has acted grossly negligently, as defined by general law, in maintaining or operating the Natural Gas Distribution System provided in this Franchise; (f) Company has become insolvent, is unable or unwilling to pay its debts, or is adjudged bankrupt; (g) Company has made a material misrepresentation of fact in the application for or negotiation of the Franchise or any extension or renewal thereof; and (h) Company has failed to pay the Franchise Fee in the manner provided in this Agreement. 10.2 Effect of Circumstances Beyond Control of Franchisee. The Company shall not be declared at fault or be subject to any sanction under any provision of this Agreement in any case, in which performance of any such provision is prevented for reasons beyond the Company's control. For the purposes of this Agreement, causes or events beyond the Company's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. A cause or event shall not be deemed to be beyond the Company's control if committed by a corporation or other business entity in which the Company holds a controlling interest whether held directly or indirectly, when such fault is due to Company's financial inability to perform or comply, economic hardship, or misfeasance, malfeasance or nonfeasance by any of the Company's directors, officers, employees or contractors or agents. 10.3 Effect of Pending Litigation. Pending litigation or any appeal to any regulatory body or court having jurisdiction over the Company shall not excuse the Company from the performance of its obligations under this Agreement, unless specifically provided for by court order or by the regulatory body having jurisdiction over such matters. Failure of the Company to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section. 10.4 Procedure Prior to Revocation. The City Manager shall notify the Company in writing of the exact nature of the alleged violation constituting a ground for termination and give the Company thirty (30) days, or such greater amount of time as the City Manager may specify, to correct such violations or to present facts and arguments to the City Manager to refute the alleged violation ("Cure Period"). If by the end of the Cure Period the Company does not remedy the violation or convince the City Manager there is no violation, the City Manager shall schedule a public meeting of the City Council for purposes of addressing the alleged violation. The Council meeting shall be held within thirty (30) days from the expiration X of the Cure Period. The City Manager shall promptly provide the Company written notice o f the Council meeting. During the Council meeting, the City Manager, Company, and all interested parties shall have the right to be heard in person and through counsel, present evidence, and cros s examine adverse witnesses. At the conclusion of the Council meeting, the Council may suspend or revoke the Franchise, if it determines that there are sufficient grounds which warrant such action; otherwise, the Franchise remains in full force and effect. The Company shall not be held in default nor suffer any penalties where non-compliance or default is caused by an event beyond the Company's control, as stated in Section 10.2. The Company shall have the right of review by a court of competent jurisdiction upon any determination by the City Council to suspend or revoke this Franchise. XI. LIABILITY AND INSURANCE. 11.1 Certificate of Insurance. In no event later than sixty (60) days after the effective date of this Agreement and thereafter continuously throughout the duration of this Agreement and any extensions or renewals thereof, the Company shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this section. Failure to furnish said certificates of insurance in a timely manner shall constitute a failure to faithfully comply with this Agreement. At the City's request, the Company shall furnis h certificates of insurance which are in effect from time to time. 11.2 No Liability Limit. Neither the provisions of this article or any damages recovered by the City hereunder, shall be construed to limit the liability of the Company for damages under this Agreement. 11.3 Endorsement. All insurance policies maintained pursuant to this Agreement shall contain an endorsement in substantially the following form: It is hereby understood and agreed that this insurance policy may not be modified or canceled by the insurance company nor the intention not to renew be stated by the insurance company until thirty (30) days after receipt by the City of Cape Canaveral City Manager by certified mail, of a written notice of such intention to cancel or not to renew. 11.4 State Institution. A44Excep :ftbr self=insuredlpolieies;, all insurance policies provided pursuant to this Agreement shall be written by companies authorized by the Florida Insurance Commissioner to do business in the State of Florida as an insurance company. 11.5 Named Insured. The City shall be an additional named insured for all insurance policies written pursuant to this Agreement. 11.6 Changes in Policy Limits. To offset the effects of inflation and to reflect changing liability limits, all of the coverage, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three (3) year period of this 10 Agreement, applicable to the next three (3) year period, at the City's discretion. 11.7 Commercial General Liability Insurance. The Company shall maintain throughout the term of this Agreement, general liability insurance insuring the Company in the minimum of: (a) $2,000,000 for property damage single limit; (b) $3,000,000 single limit liability for personal bodily injury or death to any one person; and Such general liability insurance must include coverage for all of the following: comprehensive form, premises operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. 11.8 Automobile Liability Insurance. The Company shall maintain throughout the term of this Agreement, automobile liability insurance for owned, non -owned, or rented vehicles in the minimum amount of: (a) $2,000,000 single limit liability for bodily injury and consequent death per occurrence; and (b) $1,000,000 for property damage per occurrence. 11.9 Worker's Compensation. The Company shall maintain throughout the term of this Agreement, worker's compensation in the minimum amount of the statutory limit for worker's compensation, as amended from time to time. XII. INDEMNIFICATION AND HOLD HARMLESS. 12.1 Indemnity and Hold Harmless. The City shall in no way be liable or responsible for any accident or damage caused;.by� �thet'Company, that may occur in the construction, operation, or maintenance by the Company of the Natural Gas Distribution System, and the acceptance of this Franchise on the part of the Company shall be deemed an Agreement on the part of the Company. The Gampafty sha4l to fully indemnify, defend and hold harmless the City and its officers, boards and council, contractors, and City employees against the full amount of any (i) claims, (ii) liabilities, (iii) actions, (iv) suits, (v) proceedings, (vi) payments, (vii) assessments, (viii) judgments, (ix) losses, (x) damages, (xi) costs and (xii) expenses (including interest, penalties and reasonable attorneys' fees and disbursements) claimed against the City in connection with the following: (a) To persons or property, in any way arising out of or through the acts or omissions of the Company, its servants, agents or employees; and 11 (b) Arising out of the Company's failure to comply with the provisions of any federal, state, or local laws, ordinances, or regulations applicable to the Company in its business hereunder. 12.2 Condition. The foregoing indemnity is conditioned upon the City giving the Company prompt notice of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the City from cooperating with the Company and participating in the defense of any litigation by its own counsel at its own costs and expense. 12:3 Bond.: Company shall: execute and: file; with; the Clerk of City its bond uz;the penal, sum of Fifteen Thousand, and: Not100 Dollars($15,000.00), in satisfactory form,, guaranteeingits:performanc -Of all'obligations;under this<Agreement-which;bond`'shally be enlarged o revieweikkom. time -toy time. a� required",thi? City, Council: XIII. DESIGN AND CONSTRUCTION PROVISIONS. 13.1 Authorization to Commence Construction and Application Procedures. Prior to the installation or erection of any pipelines, towers, poles, conduits, fixtures, or other appurtenances thereto, other than minor or emergency excavation and maintenance, or the upgrade or rebuild of the Natural Gas Distribution System, the Company shall fust submit to the City for review a concise description of the facilities proposed to be maintained, erected, removed, or installed, including engineering drawings, if required by the City. No erection, excavation, or installation of any part of the Natural Gas Distribution System, or any other appurtenances thereto, shall be commenced by any person until proper permits have been received from the City, except in the event of an emergency. 13.2 City Maps. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures or utilities. 13.3 Compliance with Construction and Technical Standards. The Company shall install or erect any pipelines, towers, poles, conduits, fixtures, or other appurtenances thereto, in accordance with commonly accepted good engineering practices and technical standards. The Company shall comply with all applicable construction and technical codes adopted by local, state, and federal law. 13.4 Quality of Construction. Construction, installation, reconstruction, operation, and maintenance of the Natural Gas Distribution System shall be performed in an orderly and workmanlike manner, in accordance with then current technological standards. The Company shall use its best efforts to install or erect the Natural Gas Distribution System parallel with existing other utilities located in the rights-of-way. Nothing herein shall preclude underground installation. 12 13.5 Underground Installation. (a) All installations of the natural gas transmission pipelines shall be underground unless otherwise approved by the City in writing. No paved street, alley or other paved Right -of -Way shall be cut unless approved by the City in writing, except in case of emergency. (b) Prior to performing any underground construction, the Company shall use its best efforts to locate, in advance, any water, sewage, gas, electric, cable, drainage, or other utility lines, including compliance with Chapter 556, Florida Statutes, to the extent applicable. Where any damages or alterations occur to said utility lines in the public right-of-way as a result of construction, reconstruction, maintenance, or removal of the Natural Gas Distribution System by the Company, its agents or independent contractors, the cost of such repairs including all services and materials will be the responsibility of the Company. 13.6 Construction Notice. Except with regard to routine maintenance and emergency circumstances, the Company shall give appropriate notice to the City and residents within a reasonable period of time of proposed construction, reconstruction, excavation, laying or stringing of the Natural Gas Distribution System under streets or on poles, but in no event shal 1 such notice be given less than five (5) business days before such commencement. 13.7 Interference with Persons, Public and Private Property, and Utilities. The Company's Natural Gas Distribution System and all appurtenances shall be located, erected and maintained so that such system shall: (a) Not endanger or interfere with the health, safety or lives of persons; (b) Not interfere with any improvements which the City, county or state may deem proper to make; (c) Not interfere with the free and proper use of public rights-of-way, alleys, bridges, easements or other public property, except to the minimum extent possible during actual construction or repair; (d) Not interfere with the rights and reasonable convenience of private property owners, except to the minimum extent possible during actual construction or repairs; and (e) Not obstruct, hinder or interfere with any gas, cable, electric, water, wastewater, reclaimed water, stormwater drainage, telephone, or other utility facilities located within the City. 13.8 Restoration to Prior Condition. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Company shall, at its own cost and expense, and in a manner approved by the City, replace and restore all paving, sidewalk, driveway, landscaping, or surface of any street or alley disturbed, in as good a condition as before said work was 13 commenced and in a good workmanlike, timely manner in accordance with standards for such work set by the City or the governmental entity having operational and maintenance responsibility for the Public Right -of -Way. Unless otherwise approved by the City Manager, such restoration shall be undertaken within ten (10) business days after the damage is incurred and shall be completed as soon as possible thereafter. 13.9 Private Property. The Company shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operating or maintenance of the Natural Gas Distribution System at its sole cost and expense. 13.10 Progress Reports. For work involving Public Right -of -Way excavation for other than in the event of an emergency, prior to commencing construction, the Company shall provide the City with a schedule for completion of said work and keep the City informed of the construction progress as reasonably necessary XIV. BOOKS AND RECORDS AVAILABLE TO CITY. 14.1 Records. With advance written request, the City shall have the right to inspect at any time during normal business hours, all books, records, maps, revenue statements, service complaint logs, performance test results and other like materials of the Company which relate to the operation and enforcement of the Franchise within the City. Access to the aforementioned records shall not be denied by the Company on the basis that said records contain "proprietary" information, unless applicable law exempts said records. 14.2 Review. The Company shall permit, during the Company's normal business hours, any duly authorized representative of the City to examine, at the City's discretion, any and all maps and other records kept or maintained by the Company or under its control concerning the operations, affairs, transactions or property of the Company relative to the Natural Gas Distribution System operations in the City. The examination shall take place at the Company's place of business. 14.3 Reports to Be Filed. The following financial reports for the Franchise area shall be submitted to the City: (a) An annual report prepared by the Company or the parent company of the Company shall be provided annually at the time said report is published. (b) A quarterly financial report showing the Company's quarterly gross revenues and quarterly franchise fees collected in the Franchise Area, pursuant to Paragraph 9.5 herein. 14.4 Other Records. The City may impose reasonable requests for additional information, records and documents from time to time, and the Company shall produce said 14 records within ten (10) business days, so long as such request relates to the City's enforcement abilities under this Agreement or the City's ordinances or resolutions. XV. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED. All services rendered and all rules and regulations adopted by the Company shall have general application to all persons and shall not subject any person to prejudice or disadvantage on account of race, gender, religion, origin, or ethnicity. The Company shall not deny Natural Gas service to any group of potential residential customers within the City because of the income of the residents of the area in which such group resides. The Company shall not charge customers different rates for Natural Gas service for the same class or type of service. XVI. SERVICE STANDARDS 16.1 Operation. The Company shall maintain and operate its Natural Gas Distribution System and render efficient service in accordance with the rules and regulations as are, or may be, set forth by the City Council of the City of Cape Canaveral as provided in this Franchise and by the Public Service Commission. 16.2 Planned Downtime. The Company shall provide reasonable notice to all customers who will be affected by an interruption of service for the purpose of repairs to, and installation of, the Natural Gas Distribution System to customers. XVII. MISCELLANEOUS PROVISIONS. 17.1 No Joint Venture. Nothing herein shall be deemed to create a joint venture or principal -agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. 17.2 Entire Agreement. This Agreement and all City Code provisions regulating the distribution, transmission, or sale of Natural Gas are incorporated herein by reference, represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and supersede all prior oral negotiations between the parties. This Agreement may be amended, supplemented, modified, or changed only by adoption of an Ordinance by the City and execution of an instrument agreeing to said amendment, supplementation, modification, or change in the terms hereof by the Company. 17.3 Provisions Cumulative. The rights and remedies reserved to the City by this Agreement are cumulative and shall be in addition to and not in derogation of any other rights or remedies which the City may have with respect to the subject matter of this Agreement subject to applicable law, and a waiver thereof at any time shall have no effect on the enforcement of such rights or remedies at a future time. 17.4 Notices. All notices from the Company to the City pursuant to this 15 Agreement shall be sent to: City Manager, City of Cape Canaveral, Florida, 105 Polk Avenue, Cape Canaveral, Florida 32920. All notices to the Company shall be sent to: Michael A. Palecki, NUI Corporation, Southern Division, 955 East 25th Street, Hialeah, Florida 33013, and to Randall Harris, NUI Company, 4180 South U.S. Highway 1, Rockledge, Florida 32955. The names and address in this section may be unilaterally amended by either party at anytime by giving written notice to the other party. 17.5 Captions. Captions to sections through this Agreement are solely to facilitate the reading and reference to the sections and provisions of the Agreement. Such captions shall not affect the meaning or interpretation of the Agreement. 17.6 Severability. If any section, subsection, sentence, clause, phrase, or portion of this Agreement is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision. Such holding shall not affect the validity of the remaining portions of this Agreement. 17.7 City's Rights of Intervention. The Company agrees not to oppose intervention by the City if any suit or proceeding to which the Company is a party, concerning or involving the Company and the City's rights under this Agreement. 17.8 Headings; Entire Agreement; Governing Law. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning and interpretation of this Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Florida. 17.9 Jurisdiction and Venue. The parties hereto agree that the state or federal courts located in the State of Florida shall have the exclusive jurisdiction over the parties and the subject matter of any litigation between the parties arising hereunder. For purpose of state court action, venue shall lie within Brevard County, Florida, and for the purpose of federal court action, venue shall lie within Orlando, Florida. THE COMPANY HEREBY WAIVES RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT ON THIS AGREEMENT OR ON ANY MATTER ARISING IN CONNECTION WITH THIS AGREEMENT. 17.10 Attorney's Fees. In the event of any litigation or arbitration arising out of this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney's fees and court costs incurred in such action. 17.11 Franchise Costs. The Company agrees to pay the public advertising costs incurred by the City in granting this Franchise or any renewal or assignment thereof. 17.12 Renegotiation Clause. In the event of a material change in Federal or State law(s) or Public Service Commission rule(s) or in the event the Company enters into a franchise or other agreement with Brevard County or any other city within Brevard County which provides 16 the County or other city more favorable Franchise Fees than provided to the City under this Franchise, the City and the Company mutually agree to renegotiate those particular terms of this Franchise affected by changes in said law(s) rule(s), or franchises or agreements. This Franchise shall remain in full force and effect until any negotiated amendments have been duly approved by both the City and the Company, however, if the Company fails to negotiate said amendments in good faith and in a timely manner, the City shall have the right to terminate this Franchise pursuant to paragraph 10.4 herein. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. WITNESSES: WITNESSES: STATE OF FLORIDA COUNTY OF BREVARD CITY: CITY OF CAPE CANAVERAL, FLORIDA John K. Porter, MAYOR ALGIM M_►`h`� NATIONAL UTILITY INVESTORS The foregoing instrument was acknowledged before me this day of 1997, by JOHN K. PORTER, Mayor of the CITY OF CAPE CANAVERAL, FLORIDA, a Florida Municipal Corporation, on behalf of the aforesaid municipal corporation, who is/is not personally known to me, or has produced as identification. NOTARY PUBLIC 17 STATE OF FLORIDA COUNTY OF BREVARD The foregoing instrument was acknowledged before me this day of 1997, by of NATIONAL UTILITY INVESTORS, on behalf of said corporation, who is/is not personally known to me, or has produced as identification. NOTARY PUBLIC IN n:\cape.c=n ag reemen\ gas. 00 1 Meeting Type: Regular Meeting Date: 024)4-97 AGENDA Heol Discussion Item 9 No. Attached are staff's evaluation of SSA. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: EVALUATION OF CITY ENGINEERING SERVICES DEPT./DIVISION: ADMINISTRATION Requested Action: The City Council evaluate SSA's service to the City and determine whether or not to renew the contract for another year or bid these services. Summary Explanation & Background: Per Section 13 of our agreement with SSA, they are to notify the City in writing (60) days preceding the anniversary date of this agreement that they want to renew this contract for another year. Attached are staff's evaluation of SSA. Please advise. Exhibits Attached: Evaluations/SSA's contract City Manager's Office ,, 1,,-2 a', Department C L `:\.amin\couwa\nxaingw2-o¢97=AAm JAN. -30' 97(THU) 15:14 S. S. A. TEL:407 783 7065 R 002 January 30, 1997 Mr. Bennett C. Boucher City Manager City of Cape Canaveral 105 Polk Avenin ` Cape Canaveral, FL 32920 RE: 'Renewal of City Engineering Services Dear Bennett, Per Resolution No. 9508 with the City of Cape Canaveral, SSA would like to renew and extend our Engineering Agreement for the next one (1) year period which includes February 7, 1997 to February 7, 1999. As noted in Section 13 of the Resolution, the extension of the Agreement is by mutual consent and as such, it is anticipated that the City will forward back to SSA a written response regarding this extension request. We appreciate your support in this matter and look forward to a continuing relationship with the City. Thanks. Sincerely, z/�4,, John A. Pekar, PE Vice President JAP jls cc: Pat Dwyer STOTTLER STAR1MR & ASSOCIATF.5 AFZCMTECTS OF ENGINEERS • PLANNERS. INC. URN Nwih Ane..... A—ma. P, O. B� 3890 .a.i.i •.• a��17am.dm e� ' -'1'WF7vr=3SB20-1830 407 M 1x20 Fos 4D7 7R9 90fi8 Grew To oMc FitW' ... Gf�ter r0 WW* Wdh" 01/30/97 15:14 TX/RX N0.8192 P.002 0 CITY ENGINEERING SERVICES ANNUAL EVALUATION OF STOTTLER. STARKER & ASSOCIATES 2/7/96 - 2/7/97 (1) HAVE YOU OR YOUR DEPARTMENT PERSONNEL CONSULTED OR WORKED ON PROJECTS WITH SSA? IF SO, PLEASE LIST. (2) HOW DO YOU RATE SSA'S PROFESSIONALISM AND KNOWLEDGE IN THEIR PERFORMANCE OF ASSIGNED TASKS? (3) HOW IS SSA'S CUSTOMER SERVICE? DO THEY RESPOND TO INQUIRIES IN A TIMELY MANNER? (4) DO YOU FEEL THAT CHARGES FOR SERVICES ARE (CHECK ONE) T0O LOW JUST RIGHT TOO EXPENSIVE PLEASE COMMENT. (5) WHAT ARE SSA'S STRONG POINTS? (6) ARE THERE ANY AREAS THAT SSA NEEDS TO IMPROVE UPON? (7) OVERALL RATING: UNSATISFACTORY T NEEDS IMPROVEMEN SATISFACTORY VERY GOOD EXCELLENT (8) SHOULD THE CITY COUNCIL RETAIN SSA'S SERVICES FOR ANOTHER YEAR? YES ?� NO J . . COMPLETED BY: City of Cape Canaveral 105 POLK AVENUE • P.O. BOX 326 t CAPE CANAVERAL, FLORIDA 32920 K TELEPHONE 407 783-1100 CITY OF CAPE CANAVERAL MEMORANDUM DATE: DECEMBER 30, 1996 TO: ALL DEPARTMENT HEADS FROM: BENNETTC. BOUCHER CITY MANAGER SUBJECT: EVALUATION OF CITY ENGINEERING SERVICES The City Council has requested that staff evaluate the performance of SSA's service prior to the renewal of their contract on 2/7/97. Please complete the attached evaluation form and return completed to my office no later than 1/10/97. BCB:kmm Attachment THE CITY OF CAPE CANAVERAL SUPPORTS RECYCLING PRINTED ON RECYCLED PAPER CITY ENGINEERING SERVICES ANNUAL EVALUATION OF STOTTLER. STARMER & ASSOCIATES 2/7/96 - 2/7/97 (1) HAVE YOU OR YOUR DEPARTMENT PERSONNEL CONSULTED OR WORKED ON PROJECTS WITH SSA? IF SO, PLEASE LIST. All site plan requests. (2) HOW DO YOU RATE SSA'S PROFESSIONALISM AND KNOWLEDGE IN THEIR PERFORMANCE OF ASSIGNED TASKS? Adequate (3) HOW IS SSA'S CUSTOMER SERVICE? DO THEY RESPOND TO INQUIRIES IN A TIMELY MANNER? Within contract parimeters. (4) DO YOU FEEL THAT CHARGES FOR SERVICES ARE (CHECK ONE) T0O LOW JUST RIGHT T0O EXPENSIVE PLEASE COMMENT. In compliance with contract. (5) WHAT ARE SSA'S STRONG POINTS? Concise information. (6) ARE THERE ANY AREAS THAT SSA NEEDS TO IMPROVE UPON? None known. (7) OVERALL RATING: UNSATISFACTORY NEEDS IMPROVEMENT x SATISFACTORY VERY GOOD EXCELLENT (S) SHOULD THE CITY COUNCIL RETAIN SSA'S SERVICES FOR ANOTHER YEAR? YES NO No conment. COMPLETED BY: CITY ENGINEERING SERVICES ANNUAL EVALUATION OF STOTTLER. STARMER & ASSOCIATES 2/7/96 — 2/7/97 (1) HAVE YOU OR YOUR DEPARTMENT PERSONNEL CONSULTED OR WORKED ON PROJECTS WITH SSA? IF SO, PLEASE LIST. * #j ,, - � � / - " / k " 7' "— ' - (2) HOW DO YOU RATE SSA'S PROFESSIONALISM AND KNOWLEDGE IN THEIR PERFORMANCE OF ASSIGNED TASKS?is (3) HOW IS SSA'S CUSTOMER SERVICE? DO THEY RESPOND TO INQUIRIES IN A TIMELY MANNER? //17� (4) DO YOU FEEL THAT CHARGES FOR SERVICES ARE (CHECK ONE) T0O LOW JUST RIGHT TOO EXPENSIVE PLEASE COMMENT. (5) WHAT ARE SSA'S STRONG POINTS? (6) ARE THERE ANY AREAS THAT SSA NEEDS TO IMPROVE UPON? (7) OVERALL RATING: UNSATISFACTORY NEEDS IMPROVEMENT SATISFACTORY VERY GOOD EXCELLENT (8) SHOULD THE CITY COUNCIL RETAIN SSA'S SERVICES FOR ANOTHER YEAR? YES NO COMPLETED BY: AGREEMENT FOR ENGINEERING SERVICES THIS AGREEMENT made and entered into this 7th day of February , 1995 by and between the CITY OF CAPE CANAVERAL, Florida (hereinafter referred to as "CITY"), and STOTTLER STAGG & ASSOCIATES, Architects, Engineers, Planners, Inc., a Florida Corporation (hereinafter referred to as "CONSULTING ENGINEERS"). WHEREAS, the CITY desires to engage a firm of consulting engineers to serve as City Engineer; and WHEREAS, the CITY has followed the selection and negotiation process set forth in the Florida Consultants' Competitive Negotiation Act, §287.055, Florida Statutes (1993); and WHEREAS, the CITY wishes to obtain the professional services of the CONSULTING ENGINEERS to serve as City Engineer, thereby providing such consulting engineer services as may be authorized by the City. NOW, THEREFORE, for and in consideration of the premises, the mutual covenants hereinafter recited, and for other good, valuable and sufficient consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. CONSULTING SERVICES: The CONSULTING ENGINEERS agree to serve as City Engineer by providing engineering services as further outlined herein. 2. GENERAL: The CONSULTING ENGINEERS agree to provide general engineering, planning and landscape architecture services to the CITY on an as needed basis for the consideration hereinafter set forth. 3. SITE PLAN AND DEVELOPMENT REVIEW SERVICES: The CONSULTING ENGINEERS agree to provide assistance to the CITY in conducting the review of site and other development plans. Included in these services will be assistance in verifying concurrency with the CITY's Comprehensive Plan, preparation of applicable ordinances, and field investigations as required to verify compliance with approved site/development plans. Services will be provided on a project -by -project basis, with scope of services and compensation defined and agreed to prior to authorization to proceed. 4. STUDY AND REPORT SERVICES: The CONSULTING ENGINEERS agree to conduct engineering and landscape architectural investigations and studies, and to prepare engineering and landscape architectural reports and cost estimates pertaining to specific assignments as may be authorized by the CITY. 5. PROJECT DESIGN SERVICES: As may be authorized by the CITY: (a) The CONSULTING ENGINEERS agree to prepare a Design Report for the various improvements. The Design Report shall set forth the design basis, criteria, assumptions, schematics, materials and equipment evaluation, and preliminary selection with capacities, descriptions and such other material as may be appropriate to thoroughly describe the intended design. The CONSULTING ENGINEERS agree not to proceed with detailed project design until such time as the CITY shall approve the Design Report. (b) Detailed design shall include detailed construction drawings, specifications and contract documents suitable for inviting construction bids for such projects as may be authorized by the CITY. The work shall include the preparation of an opinion of the probable cost of construction based upon completed construction plans. Complete sets of drawings, specifications and contract documents, and reproducible drawings on erasable mylar film or computer or electrostatic plots on vellum or plots on other reproducible or erasable media shall be submitted to the CITY by the CONSULTING ENGINEERS for each project. iia (c) The CONSULTING ENGINEERS shall confer as authorized with officials of State, Federal and local agencies having jurisdiction during the preparation of the drawings and specifications and shall assist the CITY in obtaining approval of the same, and in obtaining required permits from, and agreements with, such agencies. (d) The services to be furnished under this paragraph do not include property, boundary, and right-of-way surveys or the making of borings or soil bearing tests, such surveys or tests may be provided as supplementary and special services pursuant to Paragraph 6. 6. GENERAL SERVICES DURING CONSTRUCTION: As may be specifically authorized in writing by the CITY: (a) The CONSULTING ENGINEERS agree to furnish general engineering and landscape architectural services during construction of projects for which drawings, specifications and contract documents have been previously prepared by the CONSULTING ENGINEERS or accepted by the CONSULTING ENGINEERS as being suitable for use. The services shall include advice and assistance to the CITY in the receipt and analysis of bids and the recommendation for award of construction contracts, advice during construction, preparation of such sketches as are needed to resolve actual field conditions, review of shop drawings and working drawings submitted by the contractors, periodic observations of work in progress, review of payment requests submitted by contractors for reimbursement during the progress of and upon completion of the contracts, and observation of the final testing and final inspection of the completed works. (b) The CONSULTING ENGINEERS agree to prepare and submit monthly progress reports covering the general progress of the work and describing problems or factors contributing to delay. -3- 7. RESIDENT ENGINEER OR INSPECTOR SERVICES: As may be specifically authorized in writing by the CITY: (a) The CONSULTING ENGINEERS agree to furnish either a full or part-time chief Resident Engineer or Inspector, and/or a full or part-time construction inspector(s) for inspection of construction and assistants (including other field staff, related office management and clerical staff) as may be needed, all of whom shall be under the general direction and instruction of the CONSULTING ENGINEERS. Resident Engineer or Inspector duties shall be upon such terms as may be mutually agreed. (b) The CONSULTING ENGINEERS agree to prepare and submit daily reports of the field staff describing the general working conditions, areas of construction activity, all tests performed and special and unusual events. (c) The CONSULTING ENGINEERS agree to arrange for and accompany Federal, State and County officials in partial payment and final payment inspections of the construction as may be authorized. 8. SUPPLEMENTARY AND SPECIAL SERVICES: The CONSULTING ENGINEERS agree to furnish any one or more of the following supplementary and special services that pertain to the specific assignments herein when authorized by the CITY from time to time: (a) To assist the CITY in planning and zoning matters, including concurrency assessments and comprehensive plan revisions, preparation of ordinances and resolutions, revisions to ordinances and regulations, and other matters as required to assure compliance with current planning and zoning regulations. (b) To make, or at the option of the CONSULTING ENGINEERS, to have made by -4- others under the direction of the CONSULTING ENGINEERS with written approval of the City, necessary field surveys (including easement plans and descriptions) not otherwise provided by the CITY. (c) To prepare necessary State and Federal grant application forms; to provide additional engineering and landscape architectural services, special plans and descriptions, as may be required to assist the CITY in obtaining various permits and approvals for construction and operation; and to prepare for and attend public meetings and hearings as may be authorized by the CITY. (d) To furnish extra copies of drawings, specifications, contract documents, special drawings, reports and similar documents. (e) To review materials and equipment submittals tendered by bidders and contractors when such submittals are alternatives to those specified or previously approved. (f) To prepare a set of reproducible record drawings on erasable mylar film or electrostatic plots on vellum of the completed work. (g) To update previously approved studies, reports, design documents, drawings and specifications. (h) To prepare detailed renderings, exhibits or scale models for projects. (i) To furnish such services as advice and assistance in the organization of an operation and maintenance staff, in the delegation of routine operating duties, in the organization of sampling and analyses, in the operating and testing of equipment, in the preparation of operating and laboratory report forms, in the adjustment of treatment processes for more efficient performance and to assist in the operation of the facilities. 0) To prepare operation and maintenance manuals for the use of CITY personnel for -5- projects. (k) To conduct investigations and prepare reports pertaining to operations, maintenance and overhead expenses; to prepare rate schedules, earnings and expense statements, feasibility studies, appraisals and valuations; to prepare detailed quantity surveys of material and labor; and to prepare material audits or inventories required for certification of force account construction performed by the CITY. (1) To perform additional services resulting from projects involving more than one general construction contract, separate construction contracts for different building trades, or separate equipment contracts. (m) To perform additional services in connection with the rejection and rebidding of construction projects. (n) To inspect a project prior to the expiration of the guarantee period and to report observed discrepancies under guarantees provided by the construction contract. (o) To perform additional services during construction made necessary by work damaged by fire or other cause during construction; prolongation of the construction contract time by more than twenty-five percent (25%); acceleration of the work schedule involving services beyond normal working hours; or contract default due to delinquency or insolvency. (p) To serve as an expert witness for the CITY in any litigation or arbitration and to assist the CITY in preparing for litigation or arbitration. 9. COVENANTS BY THE CITY OF CAPE CANAVERAL: The CITY hereby covenants and agrees: (a) To promptly pay such fees as are due and payable to the CONSULTING ENGINEERS according to the schedules set forth in this Agreement for services authorized and performed. (b) To appoint a representative with respect to particular work to be performed under this Agreement. This representative shall have authority to transmit instructions, receive information, and transmit written interpretations and definitions of the CITY's policy and decisions pertinent to the work covered by the Agreement. (c) To make available at no cost to the CONSULTING ENGINEERS all existing records, reports, maps, plans, aerial photographs or other data which may be required for work under this Agreement, and to provide full information as to the CITY's requirements for any work authorized hereunder. (d) To make its facilities and properties available and accessible for inspection by the CONSULTING ENGINEERS, and to provide labor and safety equipment as required by the CONSULTING ENGINEERS (if authorized by the CITY), and to guarantee access to and make all provisions for the CONSULTING ENGINEERS to perform his work under this Agreement. 10. AUTHORIZATION OF WORK: All work to be performed by the CONSULTING ENGINEERS under this Agreement shall first be authorized by the CITY Council or their authorized representative, pursuant to the following procedures: (a) An amendment to this Contract shall be approved by the CITY and transmitted to the CONSULTING ENGINEERS through the CITY's representative appointed in accordance with Paragraph 9(b) above. The amendment shall contain a description of the work to be undertaken. (b) The authorization or amendment may contain additional instructions or provisions specific to the authorized work for the purpose of expanding upon certain aspects of this -7- Agreement pertinent to the work to be undertaken. Such supplemental instructions or provisions shall not be construed as a modification of this Agreement. 11. PAYMENT FOR SERVICES: The CITY agrees to pay the CONSULTING ENGINEERS for all services authorized and performed in accordance with the following schedules, subject to the project budget set out in each authorization of work: (a) For the engineering, planning and landscape architecture services described herein, the fee shall be either a lump sum fee mutually agreed to in writing at the time the authorization is authorized, or be based on the following rate scheduled attached hereto as Exhibit A. (1) Other direct charges including: a. Out-of-pocket travel and subsistence expenses when authorized by the CITY in accordance with the CITY's travel policy excluding travel of a distance less than 50 miles round trip from the CONSULTING ENGINEERS office. Mileage rate shall be $0.26 per mile. b. The costs of reproducing documents and plans as outlined below (when performed in-house by the CONSULTING ENGINEERS): ITEM SIZE COST Xerox 8-1/2 x 11 .07 - Xerox 11 x 17 .14 Sepia 24 x 36 .62 ftp or $3.72/sheet Blueline 24 x 36 .14 fe or $ .84/sheet Mylar 24 x 36 1.25 fe or $7.50/sheet Vellum 24 x 36 .95 ft' or $5.70/sheet H C. The actual costs of services performed by persons or entities not related to by common ownership or associated with CONSULTING ENGINEERS and as authorized by the CITY. d. An agreed upon charge for specifically authorized use of CONSULTING ENGINEERS' special computer programs. e. The actual costs of outside computer services at the invoiced cost to the CONSULTING ENGINEER. (2) For all projects other than site plan and development reviews, an estimate of hours and a maximum dollar amount shall be provided in writing prior to authorization to proceed. (b) For residential site plan and development reviews, a fee not to exceed that listed on the schedule attached hereto as Exhibit B shall be charged. The City agrees to collect a deposit equal to the maximum amount stated in the Initial Review Date costs to assure payment by applicant. (c) For commercial site plan and development reviews, a fee of $900.00 for sites covering 10 acres or less shall be paid. The City agrees to collect at application a deposit of $900.00 to assure payment by applicant. For sites covering greater than 10 acres, an additional $75.00 will be added for each acre in excess of 10 acres which the site covers. (d) For the detailed construction drawings, specifications, contract documents and all work described in Paragraph 5, and for the general services during construction described in Paragraph 6, a lump sum to be mutually agreeable at the time when the authorization is considered. (e) In the alternative, such other method or methods for calculating the fee as may In be mutually agreed upon in advance by the parties hereto. (f) All fees shall be invoiced monthly, (lump sum fees will be based on percent complete), and are due and payable monthly. No payment shall be made for fees for any services where the fees exceed the budget amount made as a part of the authorization of work unless the procedures set forth in Paragraph 10 hereof for approval of such excess fees are satisfied. (g) Nothing in this Agreement shall be construed to obligate the CONSULTING ENGINEERS to appear in litigation or hearings in behalf of the CITY or prepare for such appearance except in consideration of compensation for special services as set forth in Paragraphs 8 and 1l(a) hereof. (h) If, during or after the completion of the drawings, specifications and contract documents described in Paragraph 5, and in accordance with the directions of the CITY it becomes advisable to review or revise the drawings, specifications or contract documents for reasons beyond the control of the CONSULTING ENGINEERS such as, but not limited to, changes in Federal or State law, rules, regulations or other requirements or lapses in time between completion of design and bidding, payment for such review, revision or revisions shall be made to the CONSULTING ENGINEERS according to such method or methods of calculating the fee as may be mutually agreed upon in advance in writing. Changes or revisions shall be made only upon written authorization of the CITY directing such changes, reviews or revisions to be made by the CONSULTING ENGINEERS. Work in conjunction with such changes or revisions shall be paid for at a mutually agreed upon lump sum or at the rates of payment for special services under Subparagraph 11(a). -10- 12. PROHIBITION AGAINST CONTINGENT FEES: The CONSULTING ENGINEERS warrant that it has not employed or retained any company or person, other than a bond fide employee working solely for the CONSULTING ENGINEERS, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the firm, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. 13. LIFE AND LIMITATIONS OF AGREEMENT: (a) This agreement shall remain in full force for a one (1) year period, or until terminated by either party, except that as to work completed under this Agreement prior to notice of termination without fault of the CONSULTING ENGINEER, this Agreement shall continue in full force and effect until all of the payments are made to the CONSULTING ENGINEERS for such completed work. The CONSULTING ENGINEERS shall be reviewed as an item of the CITY'S annual budgetary process. This Agreement may be renewed and extended for successive one (1) year periods on each anniversary date hereof by mutual agreement of the parties hereto. Should Consulting Engineer desire to renew this Agreement, Consulting Engineer shall request the extension in writing at least sixty (60) days preceding any anniversary date of this Agreement. (b) It is agreed that this Agreement does not confer an exclusive right on the part of the CONSULTING ENGINEERS to perform all of the CITY'S consulting engineering, planning and landscape architectural work. (c) It is agreed that the CONSULTING ENGINEERS shall not be required to enter upon any facility or property which the CONSULTING ENGINEERS believe to be hazardous, -11- dangerous or unsafe. (d) It is agreed that intellectual property of all reports, tests, specifications, mylar or electrostatic plots on vellum or other reproducible media record drawings will be the property of the CITY. (e) It is agreed that any equipment, materials or supplies for which the CITY pays a direct charge pursuant to Paragraph 11(a)(1) of this Agreement shall become the property of the CITY upon completion of the project for which the particular item was specifically purchased, or in the event the item is to be used in more than one project the completion of the CONSULTING ENGINEERS' use of such item, but in either event not later than termination of this Agreement. 14. AUTHORIZED REPRESENTATIVES: The authorized representative for the CONSULTING ENGINEERS is John A. Pekar, P.E. The CONSULTING ENGINEERS may only substitute the authorized representative if agreed to in writing by the CITY. The authorized representative for the CITY is the City Manager. The CITY may substitute the authorized representative after giving written notice to the CONSULTING ENGINEERS. 15. TERMINATION: This Agreement may be terminated by either party without cause upon sixty (60) days written notice to the other party. If terminated without fault of the CONSULTING ENGINEER, the CONSULTING ENGINEERS shall submit and be paid in accordance with Paragraph 9 herein for all work previously completed under this Agreement. -12- 16. INSURANCE PROVISIONS: (a) Worker's Compensation: Coverage to apply for all employees for Statutory Limits in compliance with the applicable State and Federal laws. The policy must include Employers' Liability with a limit of $100,000 each accident. (b) Comprehensive General Liabilit. Shall have minimum limits of $500,000 Per Occurrence Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include Premises and/or Operations, Independent Contractors, Products and/or Completed Operations, Broad Form Property Damage and XCU Coverage, and a Contractual Liability Endorsement. (c) Business Auto Policy: Shall have minimum limits of $500,000 Per Occurrence Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include, Owned Vehicles, Hired and Non -Owned Vehicles, and Employee Non - Ownership. (d) Professional Liability: Proof of Professional Liability insurance shall be provided to the CITY for the amount of $1,000,000. The CITY shall notify the CONSULTING ENGINEERS to provide a greater amount on a project by project basis, if necessary, and the CONSULTING ENGINEERS shall provide appropriate documentation to the CITY prior to initiating work. (e) Special Requirements: 1. The CITY is to be included as an Additional Insured on both the Comprehensive General Liability and Business Auto Liability Policies. 2. Current, valid insurance policies meeting the requirements herein identified shall be maintained during the duration of the named project. Renewal certificates shall be sent -13- to the CITY 30 days prior to any expiration date. There shall also be a 30 -day notification to the CITY in the event of cancellation or modification of any stipulated insurance coverage. (f) Indemnification: For specific consideration, the receipt and sufficiency of which is hereby acknowledged, the CONSULTING ENGINEERS shall indemnify and save harmless the CITY and its employees from all suits, actions, claims, demands, damages, losses, expenses, including attorney's fees, costs and judgments of every kind and description to which the CITY or its employees may be subjected to by reason of injury to persons or death or property damage, resulting from or growing out of any act of commission, omission, negligence or fault of the CONSULTING ENGINEERS, their agents, employees, or subcontractors committed in connection with this Agreement. 18. CONFLICT OF INTEREST: The CONSULTING ENGINEERS hereby agree that it, its principals, shareholders, or employees shall not represent any third parties in any matters of land development before the City of Cape Canaveral except the providing of services to Brevard County which Consulting Engineer presently provides for the construction of the Library expansion and the City may engage an independent, third party engineer to represent the City in connection with its construction. In addition, the CONSULTING ENGINEERS, its principals, and shareholders agree that they will not develop property owned by them located in the City of Cape Canaveral without prior written consent of the CITY, at which time the CITY may engage ari independent, third party engineer at its election. 19. MISCELLANEOUS: Venue for and litigation for other methods of dispute resolution shall lie exclusively in Brevard County, Florida. This Contract shall be governed by the laws of the State of Florida. -14- WHEREFORE, the parties have executed the Agreement this day and date first written above. Witnesses Witnesses -15- STOTTLER STAGG & ASSOCIATES Architects, Engineers, Planners, Inc. John A. Pekar, P.E. CITY OF CAPE CANAVERAL, FLORIDA Attest: 'Ie - e2 -z' Faith G. Miller, City Clerk EXHIBIT A CITY OF CAPE CANAVERAL, FLORIDA RATE SCHEDULE RATE PRINCIPAL ........................................... $90.00 PROJECT DIRECTOR ...................................... 80.00 PROJECT: Architect, Landscape Architect, Engineer, Construction Manager, Planner ................................ 70.00 ENGINEER, ARCHITECT, LANDSCAPE ARCHITECT, PLANNER, CONSTRUCTION MANAGER ............................... 64.00 SOILS ENGINEER (including equipment) .......................... 59.00 REGISTERED SURVEYOR .................................. 63.00 CONSTRUCTION INSPECTOR II .............................. 59.00 CONSTRUCTION INSPECTOR I ............................... 46.00 JR. ENGINEER, PLANNER, ARCHITECT, LANDSCAPE ARCHITECT, DESIGNER, CADD DESIGNER .............................. 55.00 ARCHITECTURAL DRAFTSMAN, SR. DRAFTSMAN, GRAPHICS ........ 39.00 SURVEY CREW (Add $5.00/hr. for Sr. Party Chief) ................... 69.00 SR. CADD OPERATOR (including Equipment & Programs) .............. 49.00 CADD OPERATOR (including Equipment & Programs) ............... 42.00 WORD PROCESSING ....................................... 38.00 The above rates are currently in effect and may be adjusted annually on the anniversary date hereof in accordance with the Engineering News Record Construction Cost Index, provided that notice of any rate changes shall be given to the City at least ninety (90) days preceding any anniversary date of this Agreement. -16- EXHIBIT B CITY OF CAPE CANAVERAL, FLORIDA LUMP SUM FEE SCHEDULE FOR RESIDENTIAL SITE PLAN AND DEVELOPMENT REVIEWS 2nd and Additional Number of Units Initial Review Date Review(s) Fee 1- 10 $300 $140 11 -50 $450 $275 51- 100 $575 $375 101 - Up $725 $475 d: \faithkontractkity. eng 2/6/95 -17-