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HomeMy WebLinkAboutExhibit 1ACCESS, INDEMNIFICATION AND ACCEPTANCE AGREEMENT This Access, Indemnification and Acceptance Agreement (the "Agreement") is made and entered into this day of 2011,•by and between the City of Miami, a municipal corporation of the State of Florida ("City" or "Owner") and Florida Community Lighting, Inc. (the "Company"), a corporation organized under the laws of the State of Florida and qualified to transact business in Florida and provides as follows: WHEREAS, the City is the 'owner of public Right -of -Way located along Rice Street between Florida Avenue and Oak Avenue, Miami, Florida, as depicted in Exhibit A, attached hereto and made a part hereof (the "Right -of -Way"); and WHEREAS, the Owner grants to the Company, its agents, representatives, employees or contractors herein after collectively referred to as "the Company", permission to enter upon the Right -of -Way (as such team is defined below) for the purpose of the installation of five (5) light poles, which includes service connection, associated restoration and one year maintenance warranty; and WHEREAS, the Company is generously and graciously giving, devising and quitclaiming to the City said lighting improvements valued at fifty nine thousand, four hundred and fifty dollars (S59,450.00). NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants herein set forth, the parties hereto agree as follows: 1. DUTIES OF THE COMPANY 1.1 The Company will perform the following scope of work on the Right -of -Way: (a) Donate, give, devise and quitclaim to the City, the installation of five (5) light poles, which includes service connection, associated restoration and one year maintenance warranty at final locations to be approved by the City; and (b) The Company will perform this Agreement in a commercially reasonable manner following the best practices of its trade as exercised in South Florida. (c) The Company will be responsible for gaining all necessary or applicable permits (local, state, and federal) for the proposed improvements. 1.2 (a) Prior to the Company, its agents, employees, and contractors, or anyone directly or indirectly employed by any of them entering upon the Right -of -Way for purposes of performing the work described above, the Company, shall obtain and maintain or cause to be. obtained and maintained throughout the Term of the Agreement, the types and amounts of insurance coverages set forth in Exhibit B, the Certificate of Liability Insurance attached hereto and incorporated therein by this reference in such reasonable amounts as approved by the Owner's Risk Management Director protecting the City, its officers and employees, against all claims for personal injury, property damage, and regulatory actions by governmental agencies '(%/9--& 7 arising out of or related to the activities undertaken by the Company upon the Property and naming the City as an additional insured. (b)• • The insurance required hereunder shall be effective for the Term and any extensions or renewals thereof. Owner's Risk Management Administrator shall review the insurance requirements upon any extension or renewal of the Term and reserves the right to make reasonable changes in the types and amounts of insurance coverages as necessary and shall revise Exhibit "B" accordingly as necessary. (c) The Company shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the Term, including any extensions hereof. If insurance certificates are scheduled to expire during the Term and any extension thereof, the Company shall be responsible for submitting new or renewed insurance certificates to the Owner's Risk Management Administrator at least ten (10) calendar days before such expiration. In the event that expired certificates are not replaced, with new or renewed certificates which cover the Term and any extension thereof; the Owner shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the Owner's Risk Management Administrator; and the Company shall not enter the Property nor allow any of its employees, agents or contractors to enter the Property; or the Owner may, at its sole discretion, terminate the Agreement. (d) Compliance with the foregoing insurance requirements shall not relieve the Company of its liabilities and obligations under this Agreement. 1.3 The Company has requested and the Owner has agreed to grant access to the Right -of Way to perform the work described in Section 1.1 above for a period of four (4) months from the date of notice by the Company (the "Term"). If additional time is required, the Company shall notify the Owner at least three (3) days prior to the commencement of the work. 1.4 The Board of Directors of the Company shall approve corporate resolutions in substantially the form attached hereto as Exhibit C. 2. RIGHT OF ACCESS 2.1 The Owner grants to the Company, temporary access rights, subject to the conditions and limitations hereinafter contained, to the Right -of -Way. 2.2 The Company shall indemnify, defend (excluding professional liability) and hold hairuless the Owner, their respective officers, employees, and servants from and against all claims, damages or losses resulting from the work in the Right -of -Way by the Company or any statutory, strict liability or civil action related thereto, bodily injury, including death to anyone injured within the Right -of -Way and property damage to or at the described premises as a result of the negligence, action or omissions of the Company, its employees, sub -contractors, or consultants performing the work or activities on its behalf or even if it is alleged that the City, its 2 officials and/or employees were negligent, unless such injuries or damages are ultimately proven to be the result of grossly negligent or willful acts or omissions on the part of the City, its officials and/or employees. The Company shall insure that adequate safety precautions are in effect at all times during the term of the Agreement. This required indemnification and hold harmless shall survive the revocation or expiration of the Agreement. 2.3 This Section shall survive the cancellation or expiration of the Agreement. This Section shall be interpreted to comply with § 725.06, Fla. Stat. if such Statute is deemed applicable by a court of competent jurisdiction. Ten (S10.00) dollars is given to the company as specific and independent consideration for the granting of this indemnity. 2.4 The Company shall list the City of Miami as an additional insured on its general liability, auto and excess liability policies, and shall require all sub -contractors, if any, to carry equal limits of coverage, including applicable coverage endorsements, as may be applicable in connection to the scope of services being performed. 2.5 The Company hereby voluntarily and knowingly waives any and all claims against the Owner for personal injury or property damage sustained by the Company, its agents, employees, contractors, sub -contractors or consultants arising out of or related to the activities undertaken by the Company, its agents, employees, contractors, sub -contractors, or consultants upon the Property or in connection with the work and releases the Owner for any claims in connection therewith. The Company, its agents, representatives or contractors cannot under Florida law place any type of lien or encumbrance on the Property. 2.6 The Company agrees that in the event of damage to the Right -of -Way caused by the Company outside the general work area, the Company will restore the Right -of -Way to the same or better condition than it was before the work was conducted. 2.6 Notwithstanding any other tern or provision herein it is expressly understood and agreed by the Company that the Owner is not responsible, liable, or otherwise answerable to pay any fee, cost, expense, reimbursement or other monetary compensation to the Company, its agents, representatives, employees or contractors for their work or their services under this Agreement. 2.7 The term of this Agreement shall be for four (4) months from the date of execution of this Agreement or until formal acceptance of the work by the Owner, whichever occurs first. The Owner may for cause grant a written thirty (30) day extension for completion of the work. § 2.2, § 2.4, § 2.5 and § 2.6 shall survive the expiration or cancellation of this Agreement. The City hereby gratefully accepts the grant, devise, and gift from the Company for the installation of five (5) light poles, which includes service connection, associated restoration and one year maintenance warranty. The undersigned hereby acknowledges that he/she has requested permission to perform certain work relating to the installation of light poles on City Right -of -Way located along Rice Street between Florida Avenue and Oak Avenue, Miami, Florida. 3 Dated and executed by the Company this day of , 2011. WITNESS: By: By: Attest: Corporate Secretary Affix Corporate Seal 4 Florida Community Lighting, Inc. By: Name: Title: President IN WITNESS WHEREOF, the Owner has caused this Access, Indemnification and Acceptance Agreement to be executed this day of , 2011. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Priscilla A. Thompson, City Clerk Johnny Martinez, P.E., City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM REQUIREMENTS AND CORRECTNESS By: By: Calvin Ellis , Director Risk Management Department 5 Julie O. Bru City Attorney EXHIBIT A RIGHT -OF WAY MATCH LINE STA.91+60 SHEET L-2 MATCH LINE STA 91+60 SH ET -1 ?5�1? EXHIBIT B INSURANCE REQUIREMENTS -ACCESS AND INDEMNIFICATION Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required $1,000,000 $2,000,000 $1,000,000 $1,000,000 City of Miami included as an additional insured Employees included as insured Contingent and Contractual Liability Explosion, Collapse and Underground Coverage II. Business, Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $500,000 for bodily injury caused by an accident, each accident $500,000 for bodily injury caused by disease, each employee $500,000 for bodilyinjury caused by disease, policy limit V. Umbrella Liability (Excess Follow Form) A. Limits of Liability $1,000,000 Each Occurrence $1,000,000 Policy Aggregate City of Miami included as an additional insured V. Professional Liability/Pollution Liability (If Applicable) A. Limits of Liability Each Claim $2,000,000 Aggregate Limit $2,000,000 The above policies shall provide the City of Miami with written notice of cancellation or material change (defined as "a reduction in policy limits by endorsement during the policy period") in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no Tess than "A-" as to management, and no Tess than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. EXHIBIT C CORPORATE RESOLUTION WHEREAS, desires to enter into an agreement with the City of Miami for the purpose of performing the work described in the contract to which this resolution is attached; and WHEREAS, the Board of Directors at a duly held corporate meeting has considered the matter in accordance with the By -Laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that the (type title of officer) , is hereby authorized (type name of officer) and instructed to enter into a contract, in the name and on behalf of this corporation, with the City of Miami upon the terms contained in the proposed contract to which this resolution is attached and to execute the corresponding performance bond. DATED this day of , 2011 Corporate Secretary Chairperson of the Board of Directors (Corporate Seal)