Placement: Resolutions
Action Requested: Motion / Vote
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Resolution 23-R26, Authorizing the City Manager to enter into a Right-of-Way Consent Agreement between Florida Power and Light Company, a Florida Corporation, and the City of Port St. Lucie, necessary for maintaining the extension of Tom Mackie Boulevard.
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Submitted By: Clyde Cuffy, P.E., Public Works
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 (FPL)
2. Parties: City of Port St. Lucie and FPL
3. Purpose: FPL requires the City to execute a Right-of-Way Consent Agreement for the proposed purpose of maintaining the extension of Tom Mackie Boulevard to include a drainage pipe crossing within the FPL easement area.
4. New/Renewal/Modified: New
5. Duration: Perpetuity
6. Benefits to Port St. Lucie: Extension of Tom Mackie Boulevard.
7. Cost to Port St. Lucie (Annual and Potential): There is no financial cost to the City except as related to reimbursement for any damages to FPL’s facilities.
Presentation Information: Staff will be available to answer any questions.
Staff Recommendation: Move that the Council approve the Resolution authorizing the City Manager to enter into a Right-of-Way Consent Agreement between Florida Power and Light Company and the City of Port St. Lucie for the extension of Tom Mackie Boulevard.
Alternate Recommendations:
1. Move that the Council amend the recommendation and approve the resolution.
2. Move that the Council not approve the resolution and provide staff direction.
Background: The extension of Tom Mackie Boulevard will be constructed to provide access for development of the Governmental Financial Corp. The construction of the proposed roadway includes a drainage pipe through the FPL easement, requiring the City to execute a Right-of-Way Consent Agreement with FPL.
Issues/Analysis: This Resolution 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 easement, 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 Tom Mackie Boulevard, 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 Project.
Location of Project: Tom Mackie Boulevard
Attachments:
• Resolution
• Exhibit “A” to Resolution - Right-of-Way Consent Agreement with Exhibits attached
• Location Map
• Legal Memo - Regarding FPL Consent Agreement
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: 9006
Legal Sufficiency Review:
Reviewed by Frank Moehrle, Deputy City Attorney. Approved as to Legal form and sufficiency by James D. Stokes, City Attorney.