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HomeMy WebLinkAboutExecuted Reimbursement Agreement (Pivotal)CITY OF CAPE CANAVERAL/FLORIDA CITY GAS STREETSCAPE REIMBURSEMENT AGREEMENT This Agreement ("Agreement") is made and entered into this L/*d day of i&Z&(,h bew- , 2015, by and between the City of Cape Canaveral, a Florida municipal corporation, whose principal address is 105 Polk Avenue, Cape Canaveral, Florida, 32920 ("City") and Pivotal Utility Holdings, Inc. d/bla Florida City Gas whose principal address is 10 Peachtree Place NE, Location 1466, Atlanta, GA 30309 ("Company"). WITNESSETH: WHEREAS, the Company and City entered into a 30 -year non-exclusive Gas Franchise Agreement, dated February 18, 1997 ("Franchise Agreement"), and this Agreement is entered into in furtherance of the terms and conditions of the Franchise Agreement; and WHEREAS, the Company wishes to conduct a natural gas high pressure infrastructure improvement, project through the entire length of the City of Cape Canaveral ("Pressure Improvement Project"), and; WHEREAS, the City desires to make streetscape improvements to North Atlantic Avenue in accordance with the Streetscape Engineered Plans as defined in Section 2(b) herein ("Streetscape Project") to take place along and within the North Atlantic Avenue right-of-way, extending from near the intersection of Shorewood Dr. south to State Road AIA ("Construction Work Area"), and; WHEREAS, the City desires that construction of Company's utility be routed through the Construction Work Area concurrently with the City's construction of its Streetscape Project; and WHEREAS, for its successful completion, the Company's project will require extensive excavation within the existing paved portion of the Construction Work Area, including the removal and replacement of existing asphalt pavement, road base and fill materials, and; WHEREAS, the Company agrees to reimburse the City's actual and verifiable costs for new asphalt pavement, road base and fill materials associated with the Streetscape Project, including all striping and the restoration of four existing crosswalks; and WHEREAS, the Company further agrees to reimburse City costs associated with any additional required asphalt paving, road base, fill materials and striping in areas excavated by the Company outside of the Construction Work Area, if such are found to exist by the City; and WHEREAS, the City and Company desire to memorialize their understanding regarding the scope of the Company's work, the scope of the City's work and the extent of the Company's reimbursement to be paid to the City as set forth in this Agreement; and Reimbursement Agreement City of Cape Canaveral/Florida City Gas Page 1 of 7 NOW THEREFORE, in consideration of the mutual promises contained herein, the City and Company hereby agree as follows: RECITALS. The foregoing recitals are hereby deemed true and correct and are hereby incorporated by this reference. 2. SCOPE OF WORK AND REIMBURSEMENT. a. The Company's Pressure Improvement Project on North Atlantic Avenue within the City of Cape Canaveral shall be constructed in accordance with the Merritt Island Pressure Improvement Project Plans, for Project No. 141018, prepared by Carnahan, Proctor, Cross, Inc., and dated March 2015, attached hereto as Exiriblt and incorporated herein by this reference. Construction of the Pressure Improvement Project shall include the following improvements to the satisfaction of the City Engineer: Removal of pavement, excavation of road base and fill materials, as required, and placement of the natural gas utilities. ii. Replacement and compaction of appropriate fill materials and road base. iii. Restoration of excavated portion of asphalt pavement (temporary asphalt). iv. Restoration of damaged areas of the right-of-way, including but not limited to any pre-existing utilities which may be damaged during the course of the work. The Company shall obtain appropriate City progress inspection approvals for the items detailed above. b. City shall construct the Strectscape Project in accordance with the engineered plans for Project No. CCO2 prepared by Quentin L. Hampton Associates, Inc., Consulting Engineers, for the City of Cape Canaveral, entitled North Atlantic Avenue Streetscape Improvements, and dated June 2015, ("Streetseape Engineered Plans"), which Streetscape Engineered Plans are on file with the City Clerk's office. In accordance with the Streetscape Engineered Plans, construction for the Streetscape Project shall include: (i) Stormwater, sidewalk, pedway, landscaping, irrigation and other improvements, and; (ii) Milling, resurfacing, and striping of all asphalt on North Atlantic Avenue within the City, which is approximately 1.17 road miles, for the full width of the roadway; and Reimbursement Agreement City of Cape Canaveral/Florida City Gas Page 2 of 7 (iii) Reconstruction of each of the four(4) existing crosswalks located at the intersection of North Atlantic Avenue and Central Boulevard. c. Company agrees to reimburse the City's cost and expense for items (2)(b)(ii) and (2)(b)(iii), above ("Restoration Work"), as follows: i. The total cost of the Restoration Work is estimated to be Three -Hundred, Forty -Eight Thousand, Seven -Hundred and Thirty -Seven Dollars and No/00 ($348,737.00). ii. The Company shall pay to the City the total estimated cost of the Restoration Work, in the amount of Three -Hundred, Forty -Eight Thousand, Seven -Hundred and Thirty- Seven Dollars and No/00 ($348,737.00) ("Reimbursement Amount"} in full prior to October 31, 2015. iii. In the event that the actual total cost of the Restoration Work exceeds the Reimbursement Amount, Company agrees to pay the City all such additional costs within 30 days of receipt of the City's invoice and adequate supporting documentation of the actual and verifiable total cost. Should the actual total cost of the Restoration Work amount to less than the estimated cost, the City shall refund the difference between the actual and estimated cost to Company within 30 days of the completion of the Streetscape Project, as determined by the City. I217TY TO C002 HATE. The Company will work in good faith to substantially complete construction of the Pressure Improvement Project by December 31, 2015 with Company's final completion of the Pressure Improvement Project by January 31, 2015, as may be extended by the City Manager pursuant to the next paragraph ("Final Completion Date'). The City and Company shall coordinate construction of their respective Strectscape and Pressure Improvement Projects to be constructed within the North Atlantic Avenue right- of-way. Further, the City and Company shall have a duty to perform their work set forth in this Agreement in cooperation with one another. In furtherance thereof, each party hereto agrees to keep the designated contact of the other party fully informed of its performance hereunder. The City Manager may grant extensions to the Final Completion Date upon a reasonable request by the Company, and such extensions shall not be unreasonably withheld. However, in the event that the City incurs any additional out-of-pocket costs or actual and verifiable damages due to Company's delay in completion of the Pressure Improvement Project beyond the Final Completion Date, and such costs or damages are outside the City's control, then Company shall be responsible for payment of all such out- of-pocket costs or actual and verifiable damages to the City. 4. ADDITIONAL EEi2MITS. Company recognizes and agrees that it is Company's sole responsibility to duty obtain all required. permits from any applicable local, state, or federal agencies for the construction of the Pressure Improvement Project. Additionally, nothing herein is intended to interfere with or limit the City's right to permit work within the North Atlantic Avenue right-of-way and to regulate the use of, or construction within, North Atlantic Avenue in accordance with law. 5. 1CONEIRLUMN RESIDDISHILITIES, Each party shall be solely responsible for the construction of its own Project. Further, each party shall be solely responsible for the safety of its Reimbursement Agreement City of Cape Canaveral/Florida City Gas Page 3 of 7 own staff and contractors and unsafe conditions related to the work performed by its own employees and contractors within the right-of-way including, but not limited to: Managing the health, safety and environmental activities of its staff and contractors to ensure compliance with applicable health and safety laws and regulations. Coordinating with responsible parties to correct site conditions that do not meet applicable federal, state and local occupational safety and health laws and regulations, when such conditions expose either party's staff, contractors or the public to unsafe conditions. Notifying applicable federal, state and local authorities and affected personnel and contractors of any site conditions posing an imminent danger to them which either party's contractors observe. 6. 01WILM11 =TINCL The parties agree to hold a community meeting within the City of Cape Canaveral to provide residents with necessary and useful information related to the Streetscape and Pressure Improvement Projects. 7, NIGHT 11ME CONaION WJJHK. Section 34-153, City Code, states that it is unlawful for any person within the city to make, continue or cause to be made or continued any loud, unnecessary or unusual noise which either annoys, disturbs or endangers the comfort, repose, health, peace or safety of others. Additionally, Section 34-154, City Code, provides in part that if the building official determines at the time of permit application or during the progress of construction work, that the public health and safety will not be impaired by the excavation of streets and highways between the hours of 7:00 p.m. and 7:00 a.m. and certain specified holiday hours, and further determines that loss or inconvenience would result to any party in interest, then the building official may grant permission for such work to be done between the hours of 7:00 p.m. and 7:00 a.m. and during all hours of the listed holidays. Notwithstanding the foregoing, nothing herein obligates the City to permit night construction and any permission for same may be revoked at any time during the course of the Pressure Improvement Project, in accordance with City Code. 8. Because the construction will simultaneously occur with the North Atlantic Avenue right-of-way, the City's and Company's construction contractor{s} performing the Pressure Improvement Project work shall be required to have, at all times, a minimum of $1,000,000.00 of general liability coverage. The City will be listed as an additional named insured on insurance policies of Company's contractors for all work performed on the Pressure Improvement Project, and the Company will be listed as an additional named insured on the insurance policies of the City's contractor's for all work performed on the Streetscape Project. This paragraph shall survive termination of this Agreement. 9, EN11HE AGELEMN1. The City and the Company agree that this Agreement sets forth the entire agreement between the parties, and there are no promises or understandings other than those stated herein. 10. ASSIGNMENT. This Agreement shall not be assigned in whole or in part by either party without the express written consent of the other party. 11. THIRD P - Nothing in this Agreement shall be construed to give any Reimbursement Agreement City of Cape Canaveral/Florida City Gas Page 4 of 7 rights or benefits to anyone other than City and Company. 12. SEYERASILITY - In the event any portion or part thereof of this Agreement is deemed invalid, against public policy, void or otherwise unenforceable by a court of law, the parties, at their sole discretion and option, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable. 13. MEDIATIONNENUE - The parties agree that should any dispute arise between them regarding the terms or performance of this Agreement, both parties will participate in mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to resolve their differences through mediation, then any cause of action filed hereunder shall be filed pursuant to Section 15, herein. 14. QUYEMING LAW & 3MbILE - This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida, Venue for any state action or litigation shall be Brevard County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 15. ATTORNEY'S FEES.Should either party bring an action to enforce any of the terms of this Agreement, each party shall bear its own costs and expenses for such action including, but not limited to, reasonable attorney's fees, whether at settlement, trial or on appeal. 16. SOVEREIGL —IMMUNITY, Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or ,judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments pard by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). 17. TLE=DLr4J=. This Agreement shall terminate at such time as the Company has completed the Pressure Improvement Project and has made all required payments and reimbursements to the City pursuant to this Agreement. Further, the City and Company may terminate this Agreement by mutual written agreement. 18. CLAIMS SURYIVIDW TEMINATi , Termination of this Agreement shall release both parties from their obligation to effect and to receive future performance hereunder, However, in addition to provisions of this Agreement that expressly survive the termination of this Agreement, termination of this Agreement does not preclude a claim for breach of this Agreement for non-performance. 19. FORCE MAJEURE. Notwithstanding any other provision of this Agreement, neither the City nor the Company shall 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 Reimbursement Agreement City of Cape Canaveral/Florida City Gas Page 5 of 7 prevented for reasons beyond either party's reasonable control. For purposes of this Agreement, causes or events beyond the City's or Company's reasonable control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fres and other natural disasters, acts of public enemies, terrorism, riots or civil disturbances, sabotage, restraints unposed by a formal written order of a governmental agency or court. However, a formal written order of the City shall not be considered beyond the: City's reasonable control unless mandated by state or federal law. Further, a fault shall not be deemed to be beyond the Company's reasonable 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. Mechanical failures or breakdowns of Company's equipment and strikes, or work stoppages held by Company's employees, shall not be considered acts beyond Company's reasonable control. 20. MQUICU Any notice or approval under this Contract shall be sent by certified mail, return receipt requested, and if sent to the City, shall be mailed to: City of Cape Canaveral David Greene, City Manager 105 Polk Avenue Cape Canaveral, FL 32920 Phone: 321-868-1220 Fax: 321-868-1224 With a Copy to: Anthony Garganese, City Attorney P.O. Box 2873 Orlando, Florida 32802-2873 Phone (407) 425-9566 Fax (407) 425-9596 And if sent to the Company, shall be mailed to Pivotal Utility Holdings, Inc. d/b/a Florida City Gas Carolyn Bermudez, Vice President and General Manager, Operations 10 Peachtree Place NE Location 1466 Atlanta, GA 30309 Phone: Fax: Either party may change the notice address by providing the other party written notice of the change. Reimbursement Agreement City of Cape CanaveraUFlorida City Gas Page 6 of 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. WITNESSES: COMPANY: Pivotal Utility Hold so Inc' d/b/ Florida City Gas Print Name: _lavdip, M i �� c� €� Print Nam C iwro d1 l.d r" Pl..'`- � Title:cX Lt m Print Name: Attest: By.. I'LL An la Apperso , City Clerk Date--... h !.3 I15 - CITE': City of Cape Canaveral, Florida, a Florida municipal corporation. By: -� 'L Ll David L. 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