HomeMy WebLinkAboutReso 2024-3608RESOLUTION NO. 2024-a�
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, RATIFYING AN AGREEMENT WITH BREEZELINE FOR THE PAYMENT
MADE PURSUANT TO RESOLUTION NO. 2023-3528 RELATED TO THE GOLDEN
SHORES UTILITY UNDERGROUNDING PROJECT, ATTACHED HERETO AS EXHIBIT
"A"; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO
EFFECTUATE THIS RESOLUTION; PROVIDING FOR. AN EFFECTIVE DATE.
WHEREAS, on August 17th, 2023, via Resolution No. 2023-3528, the City Commission
approved a payment in an amount not to exceed $264,393.34 to Breezeline, f/k/a Atlantic
Broadband, for the installation of main line wiring, transmission equipment, and final
connections to the individual properties (the "Services") related to the Golden Shores Utility
Undergrounding Project (the "Project"); and
WHEREAS, the payment was made with the understanding that an agreement would be
presented to the City Commission for review and ratification; and
WHEREAS, the City now wishes to ratify an agreement with Breezeline for the payment
made pursuant to Resolution No. 2023-3528 for the Services related to the Project, 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 Payment. The City Commission hereby ratifies an agreement with
Breezeline for the payment made pursuant to Resolution No. 2023-3528 for the installation of
main line wiring, transmission equipment, and final connections to the individual properties
related to the Golden Shores Utility Undergrounding Project, attached hereto as Exhibit "A".
Section 2. Authorization of City Manager. The City Manager is hereby authorized to do all
things necessary to effectuate this Resolution.
Section 3. Effective Date. This Resolution will become effective upon adoption.
PASSED AND ADOPTED this 18th day of January, 2024.
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Mauricio Betancgr, CMC, City Clerk
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
"Zo
ain E. Boileau, for Nabors, Giblin
& Nickerson, P.A., City Attorney
Moved by:��//f.� �, Seconded by: G�
Vote:
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Mayor Svechin
✓ (Yes)
(No)
Vice Mayor Lama
- (Yes)
(No)
Commissioner Joseph
(Yes)
(No)
Commissioner Stuyvesant
Yes)
(No)
Commissioner Viscarra
t/ (Yes)
(No)
@BCL@EC0A8101.doc Page 2 of 2 250
CITY OF SUNNY ISLES BEACH
AGREEMENT FOR UNDERGROUND CONVERSIONS
THIS AGREEMENT (the "Agreement") is made and entered into this qday
of JCS tit,,. , , 2024, 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"): Golden Shores
Relocation —185'n St —191 St Terr from Atlantic Blvd — N Bay Road (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 mad 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, pursuant to Resolution No. 2023-3528, dated August 17, 2023, the City
Commission approved a payment to BREEZELINE in an amount not -to exceed Two Hundred
Sixty -Four Thousand Three Hundred Ninety -Three and 34/100 Dollars ($264,393,34) for the cost
of such Conversion, subject to Section 2(D) and Section 3 and any change orders; 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 and receipt of which are
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
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appropriate agency, subject to the timely filing for permits by BREEZELIKE.
C. BREEZELIKE 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.
BREEZELIKE and CITY have mutually agreed upon the location of the facilities within
the ROW as per the construction drawings. Said construction drawings are 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.
D. If the price for any item of materials to be used on the Conversion increases ten percent
(10%) or more between Agreement signing and materials purchase, the CITY shall pay to
BREEZELINE, on request, all sums by which the cost to BREEZELiNE for any materials
item has increased beyond 10%, as demonstrated by BREEZELINE.
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
BREEZELIKE 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
BREEZELINE, 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 BREEZELINE 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 BREEZELINE 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.
BREEZELIKE shall be responsible for any and all costs of removal or relocation when such
removal or relocation is initiated by BREEZELINE. 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 BREEZELINE, the portion
of the street so excavated shall, within a reasonable time and as early as practical after such
excavation, be replaced by BREEZELIKE at its expense in a condition as good as it was at the
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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
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 BREEZELINE.
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 BREEZELINE. 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. BREEZELIKE shall be responsible at completion of
construction for notifying CITY in writing of BREEZ,ELINF'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.
S. 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, BREEZELINE and the CITY
expressly waive any rights either party may have to a trial by jury in 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 patty 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
BREEZELINE.
Page 3 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 BREEZELINE, the terms of this Agreement shall control.
13. Indemnification. To the extent permitted by law, 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 perforin 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.
Page 4 of 8
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 BREEZELIKE 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 BREEZELINE, 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 BREEZELINE, 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 BREEZELINE, 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
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
BREEZELINE for any such additional work.
15. Notice. Any notice, instruction, or other communication to be given to either party
hereunder shall be in writing 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:
Cityof Sunny Isles Beach 18070 Collins Avenue
Sunny Isles Beach, Florida 33160
ATTN: City Manager
As to BREEZELINE:
3 Batterymarch Park, Ste 200
Quincy MA 02169
ATTN: General Manager
[SIGNATURE PAGE TO FOLLOW]
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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.
For the CITY of Sunny Isles Beach
By: •
Stan Morris, City Manager
Approved as to Form and Legal Sufficiency:
*/-
AiTin E. Boileau, for Nabors, Giblin
& Nickerson, P.A., City Attorney
[ADDITIONAL SIGNATURE PAGE TO FOLLOW]
Page 6 of 8
For COGECO US (Miami), LLC d/b/a Breezeline
By:
lignature)
Name: Y-lu tJ e e c
(Print or Type)
Title:
' (Print or Type)
STATE OF O C\ 0
COUNTY OF � 1 t d Dwo�--':
The foregoing instrument was acknowledged before me by means of E(physical presence or O
online notarization, this ZZ) a o SCh �' O a r "` j , 2024, by
ky r •j i. ---A Ek,, , V,2.t as ���j'c�rc� '0`` Q"U of COGLCO US (Miami),
LLC d/b/a. Breezeline. a&- rJ�°�C`�S'
(SEAL)
; "eY
"f'*
': ADRIANACONTRERAS
f W COMMISSION # HH 423413
EXPIRES: September 19, 2027
. SOF FL•.
Personally KnowZ .
n or Produced Identification
Type of Identification Produced: �,,) j A -
Page 7 of 8
Notary Pudic, State of Florida
(Signatur. of Notary Public)
(Print, Type, or Stamp
Commissioned Name of Notary
Public)
i
EXHIBIT "A"
Page 8 of 8
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t,Tx Qf salty h��
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3113 Fax
MEMORANDUM
TO: Honorable Mayor and City Commissioners
VIA: Stan Morris, City Manager
FROM: Susan Simpson, Deputy City Manager
DATE: January 18, 2024
RE: Ratification of Agreement with Breezeline
RECOMMENDATION:
Staff recommends approval of this Resolution.
REASONS:
Through Resolution Number 2023-3528 dated August 17, 2023, the City Commission approved the
payment to Breezeline for the undergrounding of the utility in Golden Shores in the amount of
$264,393.34. The payment was made with the understanding that the agreement would follow. This
agreement further details the obligations of both parties as agreed to in August 2023.
Breezeline, formerly Atlantic Broadband, has had continuous service in the Golden Shore!
neighborhood. In order to remove the poles and overhead lines, the City must pay Breezeline for the
services and materials to move their service from overhead to underground. We are now at the point
in the project in which the conduit is placed and Breezeline is ready to commence the work.
ATTACHMENTS:
Resolution
Agreement
Item Number: 10.J
248