Placement: Consent Agenda
Action Requested: Motion / Vote
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Authorize the City Manager to Enter into a Right-of-Way Consent Agreement Between Florida Power & Light Company and the City of Port St. Lucie for the Southport Flow Diversion Forcemain Project
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Submitted By: Kevin Matyjaszek
Strategic Plan Link: The City's Goal of high-quality infrastructure and facilities.
Summary Brief (Agreements/Contracts only)
1. Prepared by: Florida Power & Light Company, a Florida Corporation (“FPL”)
2. Parties: City of Port St. Lucie and FPL
3. Purpose: FPL requires the City to execute a Right-of-Way Consent Agreement (“Agreement”) to construct a 24” forcemain from the Westport Wastewater Treatment Facility to the Glades Wastewater Treatment Facility (“Southport Flow Diversion Forcemain Project”).
4. New/Renewal/Modified: New
5. Duration: In perpetuity.
6. Benefits to Port St. Lucie: This Agreement is necessary to cross FPL-owned right-of-way for the Southport Forcemain which will divert flow from the Westport Wastewater Treatment Facility.
7. Cost to Port St. Lucie (Annual and Potential): There is no financial obligation between the parties for this Agreement.
Presentation Information: Staff will be available to answer any questions.
Staff Recommendation: Move that the City Council approve authorizing the City Manager to enter into a Right-of-Way Consent Agreement between FPL and the City of Port St. Lucie for the Southport Flow Diversion Forcemain Project.
Alternate Recommendations:
1. Move that the City Council amend the recommendation and approve authorizing the City Manager to enter into a Right-of-Way Consent Agreement between FPL and the City of Port St. Lucie for the Southport Flow Diversion Forcemain Project.
2. Move that the Council not approve and provide staff with direction.
Background: A 24” forcemain is being constructed to divert flow from the Westport Wastewater Treatment Facility. The proposed path of construction crosses an FPL right-of-way.
Issues/Analysis: This Consent Agreement authorizes the City Manager to enter into the Right-of-Way Consent Agreement between FPL and the City. The Agreement designates and sets forth the responsibilities of each party regarding rights and interest to the lands under the FPL property, maintenance, relocation, and alterations to the existing and proposed facilities, indemnification clauses, prohibited activities and equipment, prohibited plantings, reimbursement to FPL for cost and expense related to damages to FPL’s facilities, and insurance requirements.
It is important to note that the Agreement requires the City to indemnify FPL and its parent, subsidiaries, affiliates, and their officers, directors, agents and employees (FPL Entities), from all liability and loss which may be sustained by FPL Entities to any person, natural or artificial, by reason of the death of or injury to any person or damage to any property, arising out of or in connection with the Crosstown Parkway extension, unless caused by FPL’s gross negligence. The indemnification provision is limited in the amount the City has to pay out per claim to $200,000.00, or when totaled with all other claims arising out of the same incident, to $300,000.00. Therefore, the City would be responsible for paying claims, subject to the monetary limits above, for FPL’s negligence as well as its own.
While the City does not typically agree to indemnify third parties for their own negligence, the City was able to negotiate limits to the indemnification to its sovereign immunity limits set forth in Section 768.28, Florida Statutes.
Financial Information: There is no financial cost to the City except as related to reimbursement for any damages to FPL’s facilities.
Special Consideration: Execution of the Right-of-Way Consent Agreement is critical to the Southport Flow Diversion Forcemain Project.
Location of Project: Westport Wastewater Treatment Facility to the Glades Booster Pumping Station.
Attachments:
1. FPL ROW Consent Agreement and its Exhibits.
NOTE: All of the listed items in the “Attachment” section above are in the custody of the City Clerk. Any item(s) not provided in City Council packets are available upon request from the City Clerk.
Internal Reference Number: 24052-04
Legal Sufficiency Review:
Reviewed by Elizabeth L. Hertz, Senior Deputy City Attorney. Approved as to Legal form and sufficiency by Richard Berrios, Interim City Attorney.