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HomeMy WebLinkAboutReso 2019-3020 RESOLUTION NO. 2019 - 3c2-o A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING AN AGREEMENT WITH ATLANTIC BROADBAND (MIAMI) FOR THE CONVERSION OF OVERHEAD WIRES TO UNDERGROUND THROUGHOUT THE CITY, IN AN AMOUNT NOT TO EXCEED ONE HUNDRED THIRTY-NINE THOUSAND TWO HUNDRED SIXTY-NINE DOLLARS AND NINETY-FOUR CENTS ($139,269.94), ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City is currently proceeding with the Collins Avenue Utilities Undergrounding Project; and WHEREAS, the City Manager has requested that Atlantic Broadband (Miami) convert certain overhead cable distribution facilities located throughout the City ("Services"); and WHEREAS, Atlantic Broadband (Miami) has agreed, and is willing and able, to provide the Services, as moreY articularl describe in Exhibit "A"; and P WHEREAS, the City Commission now wishes to approve an Agreement with Atlantic Broadband (Miami) for the conversion of overhead wires to underground throughout the City, in an amount not to exceed One Hundred Thirty-Nine Thousand Two Hundred Sixty-Nine Dollars and Ninety-Four Cents ($139,269.94), attached hereto as Exhibit "A". NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approval of Agreement. The City Commission hereby approves Agreement with Atlantic Broadband (Miami) for the conversion of overhead wires to underground throughout the City, in an amount not to exceed One Hundred Thirty-Nine Thousand Two Hundred Sixty-Nine Dollars and Ninety-Four Cents ($139,269.94), attached hereto as Exhibit "A". Section 2. Authorization of Mayor. The Mayor is hereby• authorized to execute said Agreement. Section 3. Authorization of City Manager. The City Manager is hereby authorized to do all things necessary to effectuate this Resolution. Section 4. Effective Date. This Resolution will become effective upon adoption. R2019 Atlantic Broadband Agmt Wire Conversion Undergrd Page 1 oft PASSED AND ADOPTED this 21' day of 2 er 2019. George H choll, Mayor ATT 11S4:: \!i\ �, Mauricio Behan ur, CMC, City Clerk r2( r`APPROVED AS TO FORM AND LEGAL SUFFICIENCY Edward A. Dion, City Attorney • Moved by: V(C.61111141017--- vEC LIMA- Second by: COVI-VIA tSg`( r L E2 VOTE: Mayor Scholl (Yes) (No) Vice Mayor Svechin I (Yes) (No) Commissioner Goldman 11(Yes) (No) Commissioner Lama V (Yes) (No) Commissioner Viscarra �— (Yes) (No) 82019 Atlantic Broadband Agmt Wire Conversion Undergrd Page 2 of 2 CITY OF SUNNY ISLES BEACH AGREEMENT FOR UNDERGROUND CONVERSIONS THIS AGREEMENT (the "Agreement') is made and entered into this _day of , 2019 by and between CITY OF SUNNY ISLES BEACH ("City'), a Florida municipal corporation with an address of 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 and ATLANTIC BROADBAND(Miami) LLC ("ABB"), a Delaware corporation with an address of 1681 JF Kennedy Causeway, North Bay Village Florida 33141 WHEREAS, the City has requested that ABB convert certain overhead cable distribution facilities located within the following boundaries (the "C'cnversion'): Along Col linsAve.—from 158th.St.to 195thSt.(TerracinaAve.)and from the Atlantic Ocean (east)and bound to the west by Atlantic Blvd.) (collectively, the "Existing Overhead Facilities') to underground facilities, including switch cabinets, nodes and other appurtenant facilities some of which may be installed above ground (collectively,the "Underground Facilities') and has further requested that certain of the Underground • Facilities be placed in certain of its road rights-of-way (City RO W') and/or certain • • road rights-of-way owned by or under the jurisdiction of other agencies (Other ROW "). City ROW and Other ROW may be referred to collectively as 'RO W"; and WHEREAS, the City has agreed to pay ABB $1 39,269.94 for the cost of such Conversion; and WHEREAS, ABB is willing, subject to the terms and conditions set forth in this Agreement, to place certain of the Underground Facilities in the ROW; and NOW THEREFORE, in recognition of the foregoing premises and the covenants and agreements set forth herein, and other consideration the sufficiency of which is hereby acknowledged, intending to be legally bound hereby, the parties covenant and agree as follows: 1. The foregoing recitals are true and correct, and are hereby incorporated by reference into this Agreement. Page 1 of 8 2. Conditions Precedent to Placement of Underground Facilities in ROW (a) City covenants, represents and warrants that: (i) City has full legal right and authority to enter into this Agreement; (ii) City has full legal right and authority to take all actions and measures necessary to fulfill City' s obligations under this Agreement; (iii) City hereby authorizes the use of the ROW by ABB for the purposes stated herein. (b) All applicable permits for ABB, to be issued by the City, to install, construct, or maintain Underground Facilities in ROW must be issued on a timely basis by the appropriate agency, subject to the timely filing for permits by ABB. (c) ABB warrants that the design of the Underground Facilities to which City has agreed are in compliance with all operational and safety guidelines, codes and standards. ABB and City have mutually agreed upon the location of the facilities within the ROW as per the construction drawings. Said construction drawings shall be attached as Exhibit "A" to this Agreement, are part of this Agreement, and may be amended to reflect changes to location of facilities as required. 3. Relocation and Rearrangement o f ABB Facilities. If the City or other agency with control over the City ROW or Other ROW,for any reason whatsoever, requires that ABB relocate or rearrange, in whole or in part, any Underground Facilities (as they are to exist as a result of this Conversion, or as they may later be modified, upgraded, or otherwise altered) from or within the City ROW or Other ROW, the City, notwithstanding any language to the contrary in any applicabl e permit or franchise agreement, and prior to any such relocation by ABB, shall provide ABB with a substitute location, satisfactory to ABB, obtain any easements that may be necessary, and shall pay ABB for the costs of any such relocation, adjustment or rearrangement, now or in the future. City shall reimburse ABB for all costs to locate, expose, protect or support the Underground Facilities, whether underground or above ground, in the event of future construction or excavation in close proximity to the Underground Facilities, when such services are required by City or other agency with control over the City Page 2 of 8 ROW or Other ROW City shall use its best efforts in any design and construction of its future road improvement projects to avoid or mitigate the necessity of relocating or adjusting the Underground Facilities in City ROW and, to the extent reasonably practicable, in Other .ROW. City shall only be responsible for relocation costs associated with replacement facilities conforming to ABB standards in effect at the time of relocation. Any costs associated with the replacement facilities to • provide increased capacity, improved reliability, future use facilities, or other such enhancements over and above the ABB standards in effect at the time of the relocation shall not be the responsibility of City. Nothing herein shall preclude City from obtaining reimbursement for any and all costs requiring ABB to relocate or rearrange any of its Underground Facilities from that entity which initiated the requirement for the relocation or rearrangement of the facilities, excluding only other agencies which own or have jurisdiction over the ROW. A.BB shall be responsible for any and all costs of removal .or relocation when such removal or relocation is initiated by ABB. Additionally, ABB agrees that when any portion of a street is excavated by ABB in the location, relocation or repair of any of its facilities when said location, relocation or repair is initiated by ABB, the portion of the street so excavated shall, within a reasonable time and as early as practical after such excavation, be replaced by ABB at its expense in a condition as good as it was at the time ofsuch excavation. 4. Abandonment or Sale of City ROW. If the City desires to subsequently abandon or discontinue use of the City ROW, and ownership of the land is transferred to a private party, the City, as a condition of and prior to any such sale, abandonment, or vacation, shall grant ABB an easement satisfactory to ABB for the Underground Facilities then existing within the ROW or require the transferee to so grant ABB an easement satisfactory to ABB at the time of transfer. If ownership of the City ROW is transferred to another public entity, that public entity shall take the ROW subject to the terms and conditions of this Agreement. 5. Term. This Agreement shall remain in effect for as long as ABB or any successor or assign owns or operates the Underground 'Facilities placed in the ROW. Page 3 of 8 6. Title and Ownership of Underground Facilities.Title and ownership of Underground Facilities installed by ABB as a result of this Agreement shall, at all times, remain the property of ABB. 7. Conversion Outside ROW. In the event that the ABB Underground Facilities are not, for any reason other than the sole error of ABB or its contractors, constructed within the ROW, City shall grant or secure, at City's sole cost and expense, new easements or ROW grants for the benefit of ABB for the placement of the Underground Facilities in these areas, and shall secure subordinations of any mortgages affecting these tracts to the interest of ABB. I n the alternative, at the discretion of City. City shall reimburse ABB for all costs incurred to remove said facilities which were constructed outside the ROW and for reinstallation within the ROW. ABB shall be responsible at completion of construction for notifying City in writing of ABB's approval and acceptance of the conversion as being constructed within the ROW. Upon acceptance there shall be no further responsibility on the City for relocations referenced in this'paragraph. 8. Venue; Waiver of Jury Trial. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. By entering into this Agreement, ABB and the City expressly waive any rights either party may have to a trial by jury of any civil litigation related to or arising out of this Agreement. THIS AGREEMENT SHALL BE CONSTRUED 1N ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA. 9. Attorney Fee. In the event it becomes necessary for either party to institute or defend legal proceedings as a result of the failure of the other party to comply with the terms, covenants, or provisions of this Agreement, each party in such litigation shall bear its own cost and expenses incurred and extended in connection therewith, including, but not limited to attorneys' fees and court costs through all trial and appellate levels. • 10. Assignment. The City shall not assign this Agreement without the written consent of ABB. Page 4 of 8 • 11. Recording. This Agreement shall be adopted by the City and maintained in the official records of City for the duration of the term of this Agreement. This Agreement also shall be recorded in the Official Records of the County of Miami'-Dade in which the Underground Facilities are located, in the place and in the manner in which deeds are typically recorded . 12. Conflict between Terms of Permit or Franchise Agreement. In the event of a conflict between the terms of this Agreement and any permit or franchise agreement entered into by City and ABB, the terms of this Agreement shall control. 13. Miscellaneous. A. In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable provisions had been severed and deleted. B. This Agreement may be executed in multiple identical counterparts, each of which shall be deemed an original for all purposes. C. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof, and it shall supersede all previous and contemporaneous oral and written negotiations, commitments, agreements and understandings relating hereto. D. Any modification of this Agreement shall be effective only if in writing and signed by the parties to this Agreement. E. No waiver of any provision of this Agreement shall be valid or enforceable unless such waiver is in writing and signed by the party granting such waiver. F.If either Party breaches any material provision in this agreement, then the other Party may terminate this agreement by written notice to the breaching Party; provided that, prior to any such notice of termination, the other Party provides written notice of the breach to the Breaching Party, and the breaching Party fails to cure the breach within thirty (30) days from receipt of the breach of the breach. The time to cure shall be extended for a reasonable time to allow for the cure if the breach cannot be cured within the thirty (30) calendar days and if the breaching Party continues expeditiously to cure. Page 5 of 8 G. Provided the City terminates this Agreement early, for any reason, the City shall reimburse ABB for its cost and expense relative to its performance herein. Provided ABB has completed partial Conversion of the Underground Facilities , ABB shall maintain title and ownership of such partially converted Underground Facilities in accordance with this agreement. H. Any information provided by ABB, its agents or employees that the project will be complete by a certain date or within a certain time period is an estimate and not binding on ABB, its agents and employees, Estimated completion dates, special construction work, and all other obligations of ABB under this Agreement are subject to circumstances outside the reasonable control of ABB, including, but not limited to: acts of God, flood ,extreme weather, fire explosion, natural calamity, terrorism, any moratorium, law, order, regulation, action or inaction of any governmental entity or civil or military authority, power of utility failures, fiber or cable cuts caused by third parties, unavailability of right-of-way, national emergencies, insurrection,riots, wars, strikes, lock-outs,work stoppages or other labor difficulties, pole hits or material shortages. 1. In the event of termination of this Agreement for any reason in advance of completion of the Conversion of the Overhead Facilities, the City shall have no claim or remedy against ABB for any alleged delay in the Conversion of the Overhead Facilities. J. Notwithstanding any provision of this Agreement to the contrary, in no event shall either Party be liable 'to the other Party for any special, incidental, indirect, punitive, reliance or consequential damages, whether foreseeable or not, arising out of or in conjunction with this Agreement, including, but not limited to, damage or loss of property or equipment, loss of profits or revenue, cost of capital, cost of replacement services, of claims of customers or any other cause whatsoever, including, without limitation, breach of contract, breach of warranty, negligence or strict liability. Either Party's total liability to the other in connection with this Agreement for any and all causes of action and claims, including without limitation, breach of contract, breach 'of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the lessor of: (a) proven direct damages or (b) the cost for ABB to perform the Conversion as detailed herein. In no event shall ABB be liable for any damages arising out of the acts or omissions of third parties or any third-party equipment or services not provided by ABB. K. If the City initiates changes in the scope of the Conversion of the Overhead Facilities to the Underground Facilities in the City ROW after the date of this Agreement or there exists a condition in the field or other relevant circumstances that were presumed in preparing the conversion hereunder,ABB may require the City to reimburse ABB for any such additional work. Page 6 of 8 14. Notice. Any notice, instruction or other communication to be given to either party hereunder shall be in writing and shall be hand delivered, telecopiecl, sent by Federal Express or a comparable overnight service or by U. S. registered or certified mail, with return receipt requested and postage prepaid to each party at their respective addresses set forth below: As to City: City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 ATTN: City Manager As to ABB: Atlantic Broadband 1681 IF Kennedy Causeway North Bay Village, Florida 33141 ATTN: General Manager With a copy to: Atlantic Broadband 2 Batterymarch. Park, Ste 205 Quincy MA 02164 ATTN: General Manager Page 7 of 8 IN WITNESS THEREOF, Atlantic Broadband and the City of Sunny Isles Beach have executed this Agreement on the date first set forth above. For the City of Sunny Isles Beach By: A 1'ES 1161 George H. holl,Mayor Maurici. Betancu,,City Clerk Approved as to Form and Sufficiency: taltMAX • PP Edward A. Dion,City Attorney For Atlantic Broadband By: f`D gitally signed by Danny Jobe (Signature) Danny Jo b.t—Date:2019.11.06 17:21:37 ATLAN O5'O0' Name: (Print or Type) Title: Vice President of System Operations (Print or Type) Page 8 of 8