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HomeMy WebLinkAboutReso 2022-3432RESOLUTION NO. 2022 - A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING AN AGREEMENT WITH BREEZELINE, FORMERLY KNOWN AS ATLANTIC BROADBAND, FOR THE CONVERSION OF OVERHEAD FACILITIES TO UNDERGROUND FACILITIES ALONG THE ATLANTIC BOULEVARD CORRIDOR, IN AN AMOUNT NOT TO EXCEED ONE HUNDRED THOUSAND FIVE HUNDRED EIGHTY-SEVEN DOLLARS ($100,587.00), ATTACHED HERETO, IN SUBSTANTIALLY THE FORM, AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Sunny Isles Beach ("City") is finalizing Phase 3 of the Collins Avenue Utilities Undergrounding Project ("Project"); and WHEREAS, staff has identified additional overhead facilities belonging to Breezeline, formerly known as Atlantic Broadband, along Atlantic Boulevard, between 175th Terrace and 183rd Street ("Atlantic Boulevard Corridor"), that require conversion to underground facilities, prior to achieving Project completion ("Additional Conversions"); and WHEREAS, the City Commission now wishes to approve an agreement with Breezeline in an amount not to exceed One Hundred Thousand Five Hundred Eighty -Seven Dollars ($100,587.00), in substantially the form attached hereto as Exhibit "A," for the Additional Conversions ("Agreement"). 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 the Agreement with Breezeline, in an amount not to exceed One Hundred Thousand Five Hundred Eighty - Seven Dollars ($100,587.00), in substantially the form attached hereto as Exhibit "A," for the Additional Conversions. 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. PASSED AND ADOPTED this 17th day of November 2022. Dana Robin Goldman, Mayor R2022 Breezeline Payment for Overhead Line RemovalConversion Page 1 of 2 Maurikio Betan�ur, CMC, City Clerk APPROVED AS TO FORM AND LEG FFICIENCY: D Edward A. Dion, City Attorney Moved by- Ft.- M Seconded by: Vote: Mayor Goldman _:�IL (Yes ) (No) Vice Mayor Viscarra (Yes) (No) Commissioner Joseph Yes) (No) Commissioner Lama(Yes) (No) Commissioner Stuyvesant (Yes) (No) R2022 Breezeline Payment for Overhead Line RemovalConversion Page 2 of 2 CITY OF SUNNY ISLES BEACH AGREEMENT FOR UNDERGROUND CONVERSIONS THIS AGREEMENT (the "Agreement") is made and entered into this I TP4 day of :P C , 2022, 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 COGECO US,, (Miami), LLC d/b/a Breezeline ("BREEZELINE"), a Delaware limited liability company with an address of 3 Batterymarch Park, Suite 200, Quincy, MA 02169. WHEREAS, the CITY has requested that BREEZELINE convert certain overhead cable distribution facilities located within the following boundaries (the "Conversion"): along Atlantic Boulevard, from 175th Terrace to 183rd Street (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 ROW") 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 "ROW"); and WHEREAS, the CITY has agreed to compensate BREEZELINE in an amount not to exceed One hundred Thousand Five Hundred Eighty -Seven Dollars ($100,587.00) for the cost of such Conversion; and WHEREAS, BREEZELINE is willing, subject to the terms and conditions set forth in this Agreement, to place 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. 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 BREEZELINE for the purposes stated herein. B. All applicable permits for BREEZELINE, 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 BREEZELINE. C. BREEZELINE warrants that the design of the Underground Facilities to which CITY has Page 1 of 6 agreed are in compliance with all operational and safety guidelines, codes and standards. BREEZELIKE 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 of BREEZELINE Facilities. If the CITY or other agency with control over the CITY ROW or Other ROW, for any reason whatsoever, requires that BREEZELINE 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 applicable permit or franchise agreement, and prior to any such relocation by BREEZELIKE, shall provide BREEZELINE with a substitute location, satisfactory to BREEZELIKE, obtain any easements that may be necessary, and shall pay BREEZELINE for the costs of any such relocation, adjustment or rearrangement, now or in the future. CITY shall reimburse BREEZELIKE 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 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 BREEZELINE 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 BREEZELIKE 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 BREEZELINE 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. BREEZELINE shall be responsible for any and all costs of removal or relocation when such removal or relocation is initiated by BREEZELIKE. Additionally, BREEZELINE agrees that when any portion of a street is excavated by BREEZELINE in the location, relocation or repair of any of its facilities when said location, relocation or repair is initiated by BREEZELIKE, the portion of the street so excavated shall, within a reasonable time and as early as practical after such excavation, be replaced by BREEZELINE at its expense in a condition as good as it was at the time of such 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 BREEZELINE an easement satisfactory to BREEZELINE for the Underground Facilities then Page 2 of 6 existing within the ROW or require the transferee to so grant BREEZELINE an easement satisfactory to BREEZELINE 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 BREEZELINE or any successor or assign owns or operates the Underground Facilities placed in the ROW. 6. Title and Ownership of Underground Facilities. Title and ownership of Underground Facilities installed by BREEZELINE as a result of this Agreement shall, at all times, remain the property of BREEZELIKE. 7. Conversion Outside ROW. In the event that the BREEZELIKE Underground Facilities are not, for any reason other than the sole error of BREEZELINE 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 BREEZELINE for the placement of the Underground Facilities in these areas, and shall secure subordinations of any mortgages affecting these tracts to the interest of BREEZELIKE. In the alternative, at the discretion of CITY, CITY shall reimburse BREEZELINE for all costs incurred to remove said facilities which were constructed outside the ROW and for reinstallation within the ROW. BREEZELINE shall be responsible at completion of construction for notifying CITY in writing of BREEZELINE'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, BREEZELIKE and the CITY expressly waive any -rights either parry may have to a trial by jury of any civil litigation related to or arising out of this Agreement. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA. 9. Attorneys Fees. 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 BREEZELIKE. 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. Page 3 of 6 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 BREEZELIKE, the terms of this Agreement shall control. 13. Indemnification. Each party to this Agreement (the "Indemnifying Party") shall defend, indemnify, and hold harmless the other party, including its directors, officers, employees, and agents (collectively, the "Indemnified Parties"), from and against any and all losses, claims, liabilities, judgments, damages, causes of action, penalties, charges, expenses and costs of whatever kind and nature, including attorney fees and legal costs, for death or injury of any person and for loss or damage to any property, occurring or claimed to occur as a result of the negligence or more culpable act or omission of the Indemnifying Party (including any reckless or willful misconduct) in performing its obligations under this Agreement, or the failure of the Indemnifying Party to perform its obligations under this Agreement. Nothing in this Agreement shall be deemed or otherwise interpreted as waiving the CITY's sovereign immunity protections, or as increasing the limits of liability set forth in Chapter 768, Florida Statutes. 14. 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 notice 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. G. Provided the CITY terminates this Agreement early, for any reason, the CITY shall reimburse BREEZELINE for its cost and expense relative to its performance herein. Provided BREEZELINE has completed partial Conversion of the Underground Facilities, BREEZELINE shall maintain title and ownership of such partially converted Underground Facilities in accordance with this agreement. H. Any information provided by BREEZELIKE, its agents or employees that the project will Page 4 of 6 be complete by a certain date or within a certain time period is an estimate and not binding on BREEZELIKE, its agents and employees, Estimated completion dates, special construction work, and all other obligations of BREEZELINE under this Agreement are subject to circumstances outside the reasonable control of BREEZELIKE, 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. I. 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 BREEZELINE for any alleged delay in the Conversion of the Overhead Facilities. J. 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, BREEZELINE may require the CITY to reimburse BREEZELIKE for any such additional work. 15. Notice. Any notice, instruction or other communication to be given to either party hereunder shall be inwriting and shall be hand delivered, telecopied, 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 BREEZELIKE: 3 Batterymarch Park, Ste 200 Quincy MA 02169 ATTN: General Manager [SIGNATURE PAGE TO FOLLOW] Page 5 of 6 IN WITNESS THEREOF, COGECO US (Miami), LLC and the City of Sunny Isles Beach have executed this Agreement on the date first set forth above. R For the CITY of Sunny Isles Beach By: Dana Robin Goldman, Mayor Approved orm and Sufficiency: ,j g--- Edward A. Dion, City Attorney For COGECO US (Miami), LLC d/b/a Breezeline By: ---�,- , 0'' , '/' /-- — 4(Sn(S nature) Name: (Print or Type) Title: - 7 (Pri t or Type) Page 6 of 6 TO: VIA: FROM: DATE: RE: City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305),947-0606 City Hall (305) 949-3113 Fax MEMORANDUM Honorable Mayor and City Commissioners Stan Morris, City Manager Paul Abbott, City Consultant November 17, 2022 Approve Agreement with Breezeline in the Amount for Conversion of Overhead Lines Related to the Collins Avenue Undergrounding Project RECOMMENDATION: Staff recommends approval of this Resolution. REASONS: During the bid document preparation for the utility conversion project along Collins Avenue, it was discovered that the low voltage conversion elements which run along Atlantic Blvd., and are inherently critical to the Collins Avenue conversion, were inadvertently overlooked by the engineers. As we approach the final completion of Phase 3 of the FPL transfer, which includes 175 Terrace to 183 Street, the inclusion of the Breezeline (formerly Atlantic Broadband) overhead facilities must also be removed. Payment of $100,587.00 is required for Breezeline to perform this work to move our conversion project forward to bring down the overhead lines and old poles. ADDITIONAL INFORMATION: After considerable review and negotiations with Breezeline, the cost proposal for this scope of work was reduced from their original submission of $199,997.00 to $100,587.00. ATTACHMENTS: Resolution Agreement: Item Number: 10.0 18