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09th Amendment 07/18/2018 DATE: August 2, 2018 TO: Rich Jones, Marine Resources FROM: Sally M. Abrams, D.C. th SUBJECT: July 18 BOCC Meeting - Approved Agenda Item Attached is an electronic copy of the executed agenda item listed below for your handling. J2 Board granted approval and authorized execution of Amendment No. 9 (Amendment) to the Agreement between Monroe County (County) and [[1881,1493,2073,1552][12][B,I,][Calibri]]Pumpout [[413,1551,601,1610][12][B,I,][Calibri]]USA, Inc. [[601,1551,624,1610][12][,,][Calibri]] [[624,1551,1056,1610][12][,,][Calibri]](Contractor) for Keys [[1056,1551,1071,1610][12][,,][Calibri]]- [[1071,1551,2074,1610][12][,,][Calibri]]Wide Mobile Vessel Pumpout Service (Pumpout Service), which is 1) contingent upon sufficient funding sources and levels required, and 2) providing for the term of the Amendment from July 1, 2018 through June 30, 2019. Please contact me at extension 3550 with any questions. CC: County Attorney Finance File AMENDMENT NO. 9 TO AGREEMENT BETWEEN PUMPOUT USA, INC. AND MONROE COUNTY, FLORIDA for KEYS -WIDE MOBILE VESSEL PUMPOUT SERVICE THIS AMENDMENT NO. 9 TO AGREEMENT is made and entered into this 18th day of July, 2018, between Monroe County Board of County Commissioners (hereinafter "County" or "Board ") and Pumpout USA, Inc., a for profit corporation of the State of Florida (hereinafter "Contractor "). WITNESSETH: WHEREAS, the parties entered into an Agreement on December 12, 2012, to provide Keys -wide mobile vessel pumpout service (Service) for two years, including a quota of 1,300 pumpouts per month at a cost of $21.81 per pumpout in the first year; and WHEREAS, the County established the pumpout program initially as a free service to customers in order to optimize utilization of the service and gain compliance with existing No Discharge Zone regulations; and WHEREAS, Amendment No. 1 to the Agreement was approved on March 20, 2013, deleting Section XII Donations and Grants, and including Attachment H- Contract Provisions and Attachment I- Regulations as requested by the Florida Department of Environmental Regulations (DEP) which had a separate agreement with the Contractor for the pumpout service to Monroe County; and WHEREAS, Amendment No. 2 to the Agreement was approved on July 17, 2013, to eliminate the quota and per pumpout cost due to a slow startup of service, and allow for full quarterly payments to be made to the Contractor; and WHEREAS, Amendment No. 3 to the Agreement was approved on December 10, 2014, to extend the Agreement through January 31, 2015; and WHEREAS, Amendment No. 4 to the Agreement was approved on January 21, 2015, to extend the Agreement through March 31, 2015; and WHEREAS, Amendment No. 5 to the Agreement was approved on March 18, 2015, extending the pumpout service for an additional two -year (2 -year) period, establishing a rate of $21.10 per pumpout, establishing a not to exceed annual cost of $379,800 based on an increased quota of 1,500 pumpouts per month, and requiring an annual audit of the Statement of Revenues and Expenses associated with the Agreement with Monroe County; and WHEREAS, the DEP in August 2015 directed its Clean Vessel Act (CVA) Program to provide future grants directly to the County rather than the Contractor, therefore providing uniformity in working with counties throughout the state to build sustainable pumpout programs, using Monroe County's pumpout program as a model; and WHEREAS, Amendment No. 6 to the Agreement was approved on November 17, 2015, providing for up to $729,800 for the Service, extending the Service through October 31, 2016 and 1 of 22 1 reflecting the specific funding sources and levels provided directly to the County from the State, including a $100,000 legislative appropriation and $187,500 in CVA grant funding; and WHEREAS, Amendment No. 7 to the Agreement was approved on August 17, 2016, providing for Service through June 30, 2017 and reflecting the specific funding sources and levels provided directly to the County from the State, including a $500,000 legislative appropriation and $172,350 in CVA grant funding; and WHEREAS, Amendment No. 8 to the Agreement was approved on September 20, 2017, providing for Service through June 30, 2018, increasing the quota to 1800 /month, and increasing the annual cost to $875,760 and reflecting the specific funding sources and levels provided directly to the County from the State, including a $500,000 legislative appropriation and $180,00 in CVA grant funding; and WHEREAS, in 2018 the State has provided a legislative appropriation of $277,650 to the County to help offset the cost of the County's Service for one year from July 1, 2018 through June 30, 2019; and WHEREAS, the DEP CVA Program is providing grant funding in the amount of $180,000 to help offset the cost of the County's Service for one year from July 1, 2018 through June 30, 2018; and WHEREAS, the two State funding sources may provide for most of the cost of the Service of up to $457,650 for one year from July 1, 2018 through June 30, 2019; and WHEREAS, the County desires to continue the Service provided by the Contractor at a total annual cost of $875,760, based on 1,800 pumpouts per month, and recognizes the benefit of receiving funding from the State which may provide for 52% of the cost of the Service for one year; and WHEREAS, the Agreement between the County and the Contractor requires amendment in order to provide for changes in funding sources, and the terms of the Agreement; NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained herein, the parties have entered into this Amendment No. 9 as follows: 2 of 22 Article 1.1.0 Representations and Warranties and Term of Contract By executing this Amendment (hereinafter "Amendment," "Contract," or "Agreement "), CONTRACTOR makes the following express representations and warranties to the COUNTY: 1.1.1 The CONTRACTOR shall maintain all necessary licenses, permits, or other authorizations necessary to act as CONTRACTOR for the COUNTY until the CONTRACTOR'S duties hereunder have been fully satisfied. 1.1.2 The CONTRACTOR shall prepare all documentation required by this Contract in such a manner that they will be accurate, coordinated, and adequate for use in verifying work completed and associated costs and shall be in conformity and comply with all applicable law, codes, and regulations. The CONTRACTOR warrants that the documents prepared as part of this Contract will be adequate and sufficient to document costs in a manner that is acceptable for reimbursement by government agencies, therefore eliminating any additional cost due to missing or incorrect information. 1.1.3 The CONTRACTOR assumes full responsibility to the extent allowed by law with regards to his performance and those directly under his employ. 1.1.4 The CONTRACTOR's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of Tasks expressly assigned by the COUNTY. In providing all services pursuant to this Contract, the CONTRACTOR shall abide by all statutes, ordinances, rules and regulations pertaining to, or regulating the provisions of such services, including those now in effect and hereinafter adopted. Any violation of said statutes, ordinances, rules and regulations shall constitute a material breach of this Contract and shall entitle the COUNTY to terminate this contract immediately upon delivery of written notice of termination to the CONTRACTOR. 1.1.5 At all times and for all purposes under this Contract the CONTRACTOR is an independent contractor and not an employee of the COUNTY. No statement contained in this Contract shall be construed so as to find the CONTRACTOR or any of his/her employees, subcontractors, servants, or agents to be employees of the COUNTY. As an independent CONTRACTOR the CONTRACTOR shall provide independent, professional judgment and comply with all federal, state, and local statutes, ordinances, rules and regulations applicable to the services to be provided. 1.1.6 The CONTRACTOR shall not discriminate against any person on the basis of race, creed, color, national origin, sex, age, or any other characteristic or aspect which is not job related, in its recruiting, hiring, promoting, terminating, or any other area affecting employment under this Contract or with the provision of services or goods under this Contract. 1.1.7 The effective date of this Contract shall be the last day on which this Contract is signed by both of the parties. 1.1.8 Term of Amendment. The term of the Amendment shall be for one -year commencing on July 1, 2018, and ending on June 30, 2019, unless terminated earlier under the terms of the Contract, as amended. However, the Amendment is contingent upon sufficient, continuous funding to the County by the DEP and/or other sources. If the applicable DEP (or other) funding agreement is cancelled or becomes insufficiently funded, this amended Agreement is also void, unless the parties amend it in the same manner as it was originally approved. The term of this amended Agreement shall be renewable in accordance with Section V. 3 of 22 Article 2.0 Scope of Services. The CONTRACTOR shall do, perform, and carry out in a professional and proper manner the Scope of Services described below. CONTRACTOR shall be the exclusive provider of mobile vessel pumpout services for County in all areas of the Florida Keys within Monroe County and shall also coordinate with County and Florida Fish and Wildlife Conservation Commission (FWC) on sewage pumpout compliance within the County. A detailed Scone of Services is attached as Exhibit "A." 2.1 Correction of Errors, Omissions, Deficiencies. The CONTRACTOR shall, without additional compensation, promptly correct any errors, omissions, deficiencies, or conflicts in the work product of the CONTRACTOR. Article 3.0 Amount of Compensation and Availability of Funds. 3.1 CONTRACTOR shall not charge customers of the pumpout service for the services rendered under this amended Agreement. The County, in consideration of the CONTRACTOR satisfactorily performing and carrying out the objectives of the County as to providing mobile vessel pumpout service, shall pay to the • CONTRACTOR up to the sum of Eight Hundred Seventy -Five Thousand Seven Hundred and Sixty DOLLARS ($875,760) for one year, based on a quota of 1800 pumpouts per month. Quarterly payments will be paid based on the monthly quota being reached for each month of the three -month period, however if severe, emergency weather related circumstances beyond the control of the CONTRACTOR occur (e.g. hurricane or other acts of nature) causing less than 1800 pumpouts in each month to be performed, the quarterly payment may be based on the aggregate number of pumpouts equaling at least 5400 pumpouts in that quarter. If funds from DEP or other sources cannot be obtained or cannot be continued at a level sufficient to allow for continued reimbursement of expenditures for services specified herein, this Agreement may be terminated immediately at the option of the Board by written notice of termination delivered to the CONTRACTOR. If CONTRACTOR fails to submit at least $60,000 in quarterly "allowable expenses" during the effective term of this Agreement, this Agreement may be terminated immediately at the option of the Board by written notice of termination delivered to the CONTRACTOR. For the purpose of subsequent construction or interpretation of the aforesaid term "allowable expenses ", an "allowable expense ", shall be deemed to constitute such an expense upon the determination of DEP pursuant to any applicable CVA grant agreement between the County and DEP. The Board shall not be obligated to pay for any services or goods provided by the CONTRACTOR after the CONTRACTOR has received written notice of termination. Payment under this amended Agreement is contingent upon an annual appropriation by the Monroe County Board of County Commissioners. 3.2 Payment. The County shall pay the CONTRACTOR in current funds for the CONTRACTOR's performance of authorized work. Payments of up to $218,940 (Payment) will be made quarterly by the County to the CONTRACTOR. The quarterly payments are based on a quota of 1,800 pumpouts per month, at a per unit rate of $40.544444. Conditions for payment are as follows: (A) At the end of each quarter, the CONTRACTOR shall provide an invoice acceptable to the Monroe County Clerk of Court (hereinafter "Clerk "), along with documentation of service provided including 1) signed monthly pumpout logs (specific to each pumpout vessel) 4 of 22 indicating number of pumpouts performed and volume of sewage pumped out (by service area) and a quarterly pumpout log summarizing the pumpouts provided, and 2) description of additional services or activities provided (as described in the Scope of Services). Quarterly payments shall not exceed $218,940 based on 5,400 pumpouts per quarter. Quarterly invoicing shall be based on a monthly maximum of 1,800 pumpouts at the per unit rate of $40.544444 per pumpout. In the event the CONTRACTOR performs fewer than 1,800 pumpouts in any given month, the difference shall not be made up for in other months in the same quarter (except in the case of severe, emergency related circumstances beyond the control of the CONTRACTOR; e.g. hurricane or other acts of nature), or in other months in other quarters. In the event the CONTRACTOR performs more than 1,800 pumpouts in any given month, the County shall not pay for the additional pumpouts (unless applied towards the aggregate for the quarterly total as described in Article 3.1 above). (B) Travel and lodging are specifically excluded from payment. Payment shall be made only for services provided (i.e., individual pumpouts) and there are no reimbursable items. (C) CONTRACTOR's final invoice must be received within sixty (60) days after the termination or expiration of this contract. In addition, the CONTRACTOR shall provide quarterly invoicing documentation, as described and required in the attached DEP agreement/s with the County, including a list of receipts /invoices for expenditures, defined as allowable in accordance with DEP CVA guidelines. Invoicing shall be made within 15 calendar days of the end of each quarter. 3.3 Local Government Prompt Payment Act. Payment will be made according to the Local Government Prompt Payment Act. Any request for payment must be in a form satisfactory to the Monroe County Clerk of Court. The request must describe in detail the services performed, the payment amount requested, and supporting documentation. Annually, the CONTRACTOR must furnish to the County the following (prior to the payment of any invoices, items (A) through (F) must be provided): (A) List of the CONTRACTOR's Board of Directors. For each board member please indicate when elected to serve and the length of term of service; if the CONTRACTOR is a sole proprietorship, provide name of owner(s) and duration of ownership; (B) If corporate entity, evidence of annual election of officers and directors; (C) If corporate entity, the corporate entity's Articles of Incorporation and Bylaws; (D) Organization's Policies and Procedures Manual, which must include hiring policies for all staff, drug and alcohol free workplace provisions, and equal employment opportunity provisions; (E) Cooperation with County monitoring visits that the County may request during the contract year; and (F) Other reasonable reports and information related to compliance with applicable laws, contract provisions, and the scope of services that the County may request during the contract year. 3.4 Budget. The CONTRACTOR may not be entitled to receive, and the COUNTY is not obligated to pay, any fees or expenses in excess of the amount budgeted for this Contract in each fiscal year (October 1 - September 30) by the COUNTY's Board of County Commissioners. The budgeted amount may only be modified by an affirmative act of the COUNTY's Board of County 5 of 22 Commissioners. The COUNTY's performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Board of County Commissioners and the approval of the Board members at the time of Contract initiation. Article 4.0 Renewal. The County shall have the option to renew this Agreement for an additional half -year (6- month) period. Article 5.0 Contractor's License. The CONTRACTOR shall secure, maintain and pay for any permits and licenses necessary to operate pumpout vessels and associated equipment and. infrastructure. It is the CONTRACTOR's responsibility to maintain all permits and licenses that may be required. By signature hereon, the CONTRACTOR warrants that it is authorized by law to engage in the performance of the activities herein described, subject to the terms and conditions set forth in these contract documents. Proof of such licenses and approvals shall be submitted to the County upon request. The CONTRACTOR has, and shall maintain throughout the term of this contract, appropriate licenses and approvals required to conduct its business, and hereby represents that it will at all times conduct its business activities in a reputable manner. Article 6.1.0 Insurance 6.1.1 The CONTRACTOR shall obtain insurance as specified and maintain the required insurance at all times that this Contract is in effect. In the event the completion of authorized work is delayed or suspended as a result of the CONTRACTOR's failure to purchase or maintain the required insurance, the CONTRACTOR shall indemnify the County from any and all increased expenses resulting from such delay. 6.1.2 Failure to maintain coverage shall be considered a valid reason for the County to terminate this Contract. 6.1.3 The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this Contract. 6.1.4 Delays in the commencement or completion of work, resulting from the failure of the CONTRACTOR to provide satisfactory evidence of the insurance required under this Contract, shall not extend deadlines specified in this Contract, and any penalties and failure to perform assessments shall be imposed as if the work commenced on the specified date and time. 6.1.5 The acceptance and/or approval of the CONTRACTOR'S insurance shall not be construed as relieving the CONTRACTOR from any liability or obligation assumed under this contract or imposed by law. 6.1.6 The Monroe County Board of County Commissioners shall be named as Additional Insured on all of the CONTRACTOR's insurance policies issued to satisfy this Contract's requirements, except for Workers' Compensation. 6.1.7 All insurance policies must specify that they are not subject to cancellation, non - renewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. 6 of 22 6.2.0 General Liability Insurance 6.2.1 As a pre- requisite of the work governed, or other goods supplied under this Contract (including the pre - staging of personnel and material), the CONTRACTOR shall obtain, at his/her own expense, insurance as specified in the attached schedules, which are made part of this Contract. The CONTRACTOR shall require all subcontractors to obtain insurance consistent with the attached schedules. The CONTRACTOR shall ensure that any and all sub - contractors maintain the same types and amounts of insurance required of CONTRACTOR. The CONTRACTOR shall be named as an additional insured on all subcontractors' liability policies. Upon request of County, the CONTRACTOR shall provide such evidence of insurance required of the subcontractor. 6.2.2 The CONTRACTOR will not be permitted to commence work governed by this Contract (including pre - staging of personnel and material) until satisfactory evidence of the insurance required by this Contract has been furnished to the County as specified herein, and where applicable the CONTRACTOR shall provide proof of insurance for all approved subcontractors. 6.2.3 The coverage provided herein shall be provided by an insurer with an A.M. Best rating of VI or better, that is licensed to business in the State of Florida and that has an agent for service of process within the State of Florida. The coverage shall contain an endorsement providing sixty (60) days' notice to the County prior to any cancellation of said coverage. Said coverage shall be written by an insurer acceptable to the County and shall be in a form acceptable to the COUNTY. Prior to the commencement of work governed by this Contract, the CONTRACTOR shall obtain and maintain General Liability insurance. Coverage shall be continuously maintained and include, at a minimum: Insurance Requirement Required Limits Worker's Compensation $100,000 Bodily Injury by Accident $500,000 Bodily Injury by Disease, policy limits $100,000 Bodily Injury by Disease, each employee Recognizing that the work governed by this Agreement involves Maritime Operations (not to be associated with Longshoremen's Insurance) , the CONTRACTOR's Workers' Compensation Insurance Policy shall include coverage for claims subject to the Federal Jones Act (46 U.S.C.A. subsection 688) with limits not less than $1 million. The CONTRACTOR shall be permitted to provide Jones Act Coverage through a separate Protection and Indemnity Policy, insofar as the coverage provided is no less restrictive than would have been provided by a Workers' Compensation policy. General Liability $300,000 Combined Single Limit If split limits are provided, the minimum limits acceptable shall be: $200,000 per person $300,000 per occurrence $200,000 property damage Vehicle Liability $300,000 Combined Single Limit If split limits are provided, the minimum limits acceptable shall 7 of 22 be: $200,000 per person $300,000 per occurrence $200,000 property damage Pollution Liability $1 million per Occurrence Recognizing that the work governed by this Agreement involves the storage, treatment, processing, or transporting of potentially polluting material, the CONTRACTOR shall purchase and maintain, throughout the life of the contract, Pollution Liability Insurance which will respond to bodily injury, property damage, and environmental damage caused by a discharge of wastes which are governed by this Agreement. The policy must specifically identify this contract and specify that coverage will extend to all losses, claiming pollution or environmental impairment, arising out of the services governed by this Agreement. The minimum limits of liability shall be: • $1 million per Occurrence If coverage is provided on a claims made basis, an extended claims reporting period of one (1) year will be required. • Monroe County and its Board of County Commissioners shall be named as an Additional Insured. Watercraft Liability $1 million Combined Single Limit (CSL) Prior to the commencement of work governed by this Agreement, the CONTRACTOR shall obtain Water Craft Liability Insurance with terms no less restrictive than those found in the standard "American Institute Hull Clauses" (June 2, 1977 edition). Coverage shall be maintained throughout the life of this Agreement and include, at a minimum: • Injury (including death) to any Person; • Damage to Fixed or Movable Objects; • Costs Associated with the Removal of Wrecked Vessels; and • Contractual Liability with Respect to this Agreement. If the policy obtained states that coverage applies for the "Acts or Omissions of a Vessel ", it shall be endorsed to provide coverage for the legal liability of the ship - owner. The minimum limits acceptable shall be: $1 million Combined Single Limit (CSL) Coverage provided by a Protection and Indemnity Club (P &I) shall be subject to the approval of the County. Monroe County and its Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. The CONTRACTOR shall maintain the insurance required by this Contract throughout the entire term of the Contract and any extensions specified in the attached schedules. Failure to comply with these provisions may result in the immediate suspension of all work until the required insurance has been reinstated or replaced. 8 of 22 • The CONTRACTOR shall provide, to the COUNTY, as satisfactory evidence of the required insurance, either: • Certificate of Insurance or • A certified copy of the actual insurance policy. 6.2.4 Coverage shall be maintained throughout the entire term of the contract. 6.2.5 Coverage shall be provided by a company or companies authorized to transact business in the state of Florida. 6.2.6 If the CONTRACTOR has been approved by the Florida's Department of Labor as an authorized self - insurer, the COUNTY shall recognize and honor the CONTRACTOR'S status. The CONTRACTOR may be required to submit a Letter of Authorization issued by the Department of Labor and a Certificate of Insurance, providing details on the CONTRACTOR'S Excess Insurance Program. 6.2.7 If the CONTRACTOR participates in a self - insurance fund, a Certificate of Insurance will be required. In addition, the CONTRACTOR may be required to submit updated financial statements from the fund upon request from the County. 6.2.8 The CONTRACTOR shall require its subcontractors to be adequately insured at least to the limits prescribed above, and to any increased limits of the CONTRACTOR if so required by the COUNTY during the term of this Contract. The COUNTY will not pay for increased limits of insurance for subcontractors. 6.2.9 The CONTRACTOR shall provide to the COUNTY certificates of insurance or a copy of all insurance policies including those naming the COUNTY as an additional insured. The COUNTY reserves the right to require a certified copy of such policies upon request. Article 7. Staffing. Since this contract is a service agreement, staffing is of paramount importance. CONTRACTOR shall provide services using the following standards, as a minimum requirement: (A) The CONTRACTOR shall provide at its own expense all necessary personnel to provide the services under this Agreement. The personnel shall not be employees of or have any contractual relationship with the County. (B) All personnel engaged in performing services under this Agreement shall be fully qualified, and, if required, to be authorized or permitted under Federal, State, and local laws to perform such services. Article 8. Utilities. The CONTRACTOR shall be responsible for payment of any utility charges associated with the mobile pumpout service. All utility accounts shall be held in the CONTRACTOR's name. Article 9.0 Indemnification and Hold Harmless. 9 of 22 9.1 The CONTRACTOR covenants and agrees to hold harmless the COUNTY/Monroe County and Monroe County Board of County Commissioners, and its officers and employees, from liabilities, damages, losses, and costs, including but not limited to, all fines, suits, claims, demands, actions, costs, obligations, and attorney's fees, or liability of any kind al arising out of, related to, or in connection with the negligence, recklessness, or intentional wrongful conduct of the CONTRACTOR, subcontractor(s), and other persons employed or utilized by the CONTRACTOR in the performance of the CONTRACT, or al arising out of, related to, or in connection with the willful non - performance of the CONTRACTOR. The CONTRACTOR shall be solely responsible and answerable for any and all accidents or injuries to persons or property arising out of its performance of the Contract, including those of any subcontractors. 9.2 The first ten dollars ($10.00) of remuneration paid to the CONTRACTOR is for the indemnification provided for above. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this Contract. Should any claims be asserted against the COUNTY by virtue of any deficiency or ambiguity in the plans and specifications provided by the CONTRACTOR, the CONTRACTOR agrees and warrants that he shall hold the COUNTY harmless and shall indemnify him from all losses occurring thereby and shall further defend any claim or action on the COUNTY's behalf. 9.3 In the event completion of the work assigned (to include the work of others) is delayed or suspended as a result of the CONTRACTOR's failure to purchase or maintain the required insurance, the CONTRACTOR shall indemnify the COUNTY from any and all increased expenses resulting from such delays. Should any claims be asserted against the COUNTY by virtue of any deficiencies or ambiguity in the plans and specifications provided by the COUNTY or CONTRACTOR, the CONTRACTOR agrees and warrants that the CONTRACTOR shall hold the COUNTY harmless and shall indemnify it from all losses occurring thereby and shall further defend any claims or action on the COUNTY's behalf. 9.4 The CONTRACTOR agrees that no charges or claims for damages shall be made by it for any delays or hindrances attributable to the COUNTY, for whatever cause, during the progress of any portion of the services specified in this Contract. The CONTRACTOR agrees that it shall not be entitled to damages for delay 9.5 The CONTRACTOR shall be responsible for the completeness and accuracy of its work, plan, supporting data, and other documents prepared or compiled under its obligation for this project, and shall correct at its expense all significant errors or omissions therein which may be disclosed. The cost of the work necessary to correct those errors attributable to the CONTRACTOR and any damage incurred by the COUNTY as a result of additional costs caused by such errors shall be chargeable to the CONTRACTOR. 9.6 The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere in this Contract. 9.7 This indemnification shall survive the expiration or early termination of the Contract. Article 10. Facilities and Equipment. The CONTRACTOR hereby accepts the use of any County facilities (e.g., dockage), equipment, or infrastructure that may be provided for use in conjunction with the Keys -Wide Mobile Vessel Pumpout Service in "as is" condition, and the CONTRACTOR 'shall allow the County to inspect said facilities and equipment at any reasonable time. In addition, all operating supplies and any additional equipment shall be the responsibility of the 10 of 22 CONTRACTOR. The County shall provide a slip for CONTRACTOR's pumpout boat at the Murray Nelson Government Center in Key Largo. Article 11. Contractor's Assumption of Premises and Conditions. The CONTRACTOR hereby agrees that it has carefully examined the facilities and equipment provided by the County and has made investigations to fully satisfy itself that such facilities and/or equipment are suitable for this work and it assumes full responsibility therefor. The provisions of this Agreement shall control any inconsistent provisions contained in the Scope of Work. The Scope of Work has been read and carefully considered by the CONTRACTOR, who understands the same and agrees to their sufficiency for the work to be done. Under no circumstances, conditions, or situations, shall this Agreement be more strongly construed against the County than against the CONTRACTOR. Article 12. Maintenance, Improvements, and Capital Assets. The CONTRACTOR shall be responsible for the maintenance, repairs, and upkeep of facilities and equipment conveyed to, or provided for the use of, the CONTRACTOR. The CONTRACTOR shall maintain County dockage, or other facilities, and all equipment in a clean, safe, and sanitary manner. Article 13. Breach of Terms by Contractor. The passing, approval, and/or acceptance by the County of any defect in the services furnished by the CONTRACTOR, shall not operate as a waiver by the County of strict compliance with the terms of this Agreement, and specifications covering the services. Any CONTRACTOR's breach of this Agreement shall be governed by the article below on termination for cause. The CONTRACTOR agrees that the County Administrator may designate representatives to visit any facilities or offices utilized by the CONTRACTOR periodically to inspect CONTRACTOR's maintenance of vessels and equipment. The CONTRACTOR agrees that the County Administrator may designate representatives to visit the facilities or offices periodically to conduct random open file evaluations during the Contractor's normal business hours. Article 14. Termination Without Cause. The County may terminate this Contract without cause by providing the CONTRACTOR with written notice of termination at least thirty (30) days prior to the date of termination. Compensation shall be paid to the CONTRACTOR through the end of provision or services or for the thirty (30) days, whichever is shorter. Article 15. Termination with Cause. In addition to all the terms set forth herein, the County may terminate this Agreement for cause if the CONTRACTOR shall default in the performance of any of its obligations under this Agreement. Default shall include the occurrence of any one of the following events and same is not corrected to the satisfaction of the County within fifteen (15) days after the County provides the CONTRACTOR with written notice of said default: (A) Failure to provide pumpout services to live - aboards as described in this Agreement. (B) Failure to comply with local, state, or federal rules or regulations pertaining to the operation of pumpout vessels or the handling and/or treatment of vessel waste. (C) Breach of any other term, condition, or requirement of this Agreement. Article 16. Maintenance of Records. CONTRACTOR shall maintain all books, records, and documents directly pertinent to performance under this Contract in accordance with generally accepted accounting principles consistently applied. Records shall be retained for a period of 7- years from the termination of this Contract or for a period of 3 years from the date of submission of the final expenditure report in accordance with 2 CFR § 200.333, whichever is greater. Each party 11 of 22 • to this Contract or its authorized representatives shall have reasonable and timely access to such records of each other party to this Contract for public records purposes during the term of the Contract and for four years following the termination of this Contract. If an auditor employed by the COUNTY or Monroe County Clerk of Court determines that monies paid to CONTRACTOR pursuant to this CONTRACTOR were spent for purposes not authorized by this CONTRACTOR, or were wrongfully retained by the CONTRACTOR, the CONTRACTOR shall repay the monies together with interest calculated pursuant to Sec. 55.03, of the Florida Statutes, running from the date the monies were paid by the COUNTY. In addition, the CONTRACTOR shall, at its expense, provide the County with an annual audit, prepared by an independent Certified Public Accountant, which shall conform to generally accepted auditing standards, of the Statement of Revenues and Expenses associated with this Agreement with Monroe County, and which shall be submitted to the County within one hundred twenty (120) days following the close of the Contractor's fiscal year. The CONTRACTOR shall also allow the County to inspect the CONTRACTOR's facilities, equipment, or vessels at any reasonable time. Article 17. Public Access and Public Records Compliance. CONTRACTOR must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of Article I of the Florida Constitution. The COUNTY and CONTRACTOR shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters, or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the COUNTY and CONTRACTOR in conjunction with and in connection with this Contract and related to Contract performance. The COUNTY shall have the right to unilaterally cancel this Contract upon violation of this provision by the CONTRACTOR. Failure of the CONTRACTOR to abide by the terms of this provision shall be deemed a material breach of this Contract and the COUNTY may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the Contract. The CONTRACTOR is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the CONTRACTOR is required to: (1) Keep and maintain public records that would be required by the COUNTY to perform the service. (2) Upon receipt from the COUNTY's custodian of records, provide the COUNTY with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Contract term and following completion of the Contract if the CONTRACTOR does not transfer the records to the COUNTY. (4) Upon completion of the Contract, transfer, at no cost, to the COUNTY all public records in possession of the CONTRACTOR or keep and maintain public records that would be 12 of 22 required by the COUNTY to perform the service. If the CONTRACTOR transfers all public records to the COUNTY upon completion of the contract, the CONTRACTOR shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONTRACTOR keeps and maintains public records upon completion of the Contract, the CONTRACTOR shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the COUNTY, upon request from the COUNTY's custodian of records, in a format that is compatible with the information technology systems of the COUNTY. (5) A request to inspect or copy public records relating to a COUNTY Contract must be made directly to the COUNTY, but if the COUNTY does not possess the requested records, the COUNTY shall immediately notify the CONTRACTOR of the request, and the CONTRACTOR must provide the records to the COUNTY or allow the records to be inspected or copied within a reasonable time. If the CONTRACTOR does not comply with the COUNTY's request for records, the COUNTY shall enforce the public records Contract provisions in accordance with the Contract, notwithstanding the COUNTY's option and right to unilaterally cancel this Contract upon violation of this provision by the CONTRACTOR. A CONTRACTOR who fails to provide the public records to the COUNTY or pursuant to a valid public records request within a reasonable time may be subject to penalties under Section 119.10, Florida Statutes. The CONTRACTOR shall not transfer custody, release, alter, destroy or otherwise dispose of any public records unless or otherwise provided in this provision or as otherwise provided by law. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT PHONE# 305 - 292 -3470 BRADLEY- BRIANa,MONROECOUNTY- FL.GOV, MONROE COUNTY ATTORNEY'S OFFICE 1111 12TH Street, SUITE 408, KEY WEST, FL 33040. Article 18. Compliance with Law. In providing all services pursuant to this Agreement, the CONTRACTOR shall abide by all statutes, ordinances, rules, and regulations pertaining to, or regulating the provisions of, such services, including those now in effect and hereinafter adopted. Any violation of said statutes, ordinances, rules, and regulations shall constitute a material breach of this Agreement and shall entitle the Board to terminate this contract immediately upon delivery of written notice of termination to the CONTRACTOR. The CONTRACTOR shall possess proper licenses to perform work in accordance with these specifications throughout the term of this Agreement. Article 19. Disclosure, Conflict of Interest, and Code of Ethics. 13 of 22 (A) The CONTRACTOR represents that it, its directors, principals and employees, presently have no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required by this Agreement, as provided in Section 112.311, et. seq., Florida Statutes. (B) Upon execution of this Agreement, and thereafter as changes may require, the CONTRACTOR shall notify the County of any financial interest it may have in any and all contracts with Monroe County. (C) County agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. Article 20. Notice Requirements. Any notice required or permitted under this Agreement shall be in writing and hand delivered or mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the following: FOR COUNTY: Monroe County Administrator and Monroe County and Monroe County Attorney 1100 Simonton Street Senior Director 1111 12 St., Suite 408 Key West, FL 33040 Planning & Environmental Key West, FL 33041 Resources Department 2798 Overseas Hwy. Marathon, FL 33050 FOR CONTRACTOR: Donnie Brown, Pumpout USA 1150 Highway 83 North DeFuniak Springs, Florida 32433 Article 21. Taxes. The County is exempt from payment of Florida State Sales and Use taxes. The CONTRACTOR shall not be exempted by virtue of the County's exemption from paying sales tax to its suppliers for materials used to fulfill its obligations under this Agreement, nor is the CONTRACTOR authorized to use the County's Tax Exemption Number in securing such materials. The CONTRACTOR shall be responsible for any and all taxes, or payments of withholding, related to services rendered under this Agreement. Article 22. Financial Responsibility. The CONTRACTOR shall not pledge the County's credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. The CONTRACTOR further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this Agreement. Article 23.1.0 Miscellaneous 23.1.1 Successors and Assigns. The CONTRACTOR shall not assign or subcontract its obligations 14 of 22 under this Contract, except in writing and with the prior written approval of the COUNTY and consistent with the Contract, which approval shall be subject to such conditions and provisions as the COUNTY may deem necessary. This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or subcontractor shall comply with all of the provisions of this Contract. Subject to the provisions of the immediately preceding sentence, each party hereto binds itself, its successors, assigns and legal representatives to the other and to the successors, assigns and legal representatives of such other party. 23.1.2 No Third - Party Beneficiaries. Nothing contained herein shall create any relationship, contractual or otherwise, with or any rights in favor of, any third party. 23.1.3 Termination. (A) In the event the CONTRACTOR shall be found to be negligent in any aspect of the service or work, the COUNTY shall have the right to terminate the Contract after five (5) days' written notification to the CONTRACTOR. (B) The COUNTY may cancel this Contract without cause by giving the CONTRACTOR sixty (60) days' written notice of its intention to do so. 23.1.4 Public Entities Crimes /Convicted Vendor. A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on contracts to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017 of the Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. By signing this Contract, CONTRACTOR represents that the execution of this Contract will not violate the Public Entity Crimes Act (Section 287.133, Florida Statutes). Violation of this section shall result in termination of this Contract and recovery of all monies paid hereto, and may result in debarment from COUNTY's competitive procurement activities. In addition to the foregoing, CONTRACTOR further represents that there has been no determination, based on an audit, that it or any subcontractor has committed an act defined by Section 287.133, Florida Statutes, as a "public entity crime" and that it has not been formally charged with committing an act defined as a "public entity crime" regardless of the amount of money involved or whether CONTRACTOR has been placed on the convicted vendor list. CONTRACTOR will promptly notify the COUNTY if it or any subcontractor or subconsultant is formally charged with an act defined as a "public entity crime" or has been placed on the convicted vendor list. 23.1.5 Claims for Federal Aid. CONTRACTOR and COUNTY agree that each shall be, and 15 of 22 is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Contract; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 23.1.6 Non - Discrimination. CONTRACTOR and COUNTY agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Contract automatically terminates without any further action on the part of any party, effective the date of the court order. CONTRACTOR or COUNTY agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681 -1683, and 1685- 1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101 -6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; 10) Monroe County Code Chapter 13, Article VI, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Contract. 23.1.7 No Solicitation/Payment. The CONTRACTOR and COUNTY warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Contract and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Contract. For the breach or violation of the provision, the CONTRACTOR agrees that the COUNTY shall have the right to terminate this Contract without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 23.1.8 Employees Subject to County Ordinance Nos. 010 - 1990 and 020 - 1990. The CONTRACTOR warrants that it has not employed, retained or otherwise had act on its behalf any former COUNTY officer or employee subject to the prohibition of Section 2 of Ordinance No. 010 -1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 020 -1990. For breach or violation of this provision the COUNTY may, in its discretion, terminate this Contract without liability and may also, in its discretion, deduct from the Contract or purchase price, or otherwise recover the full amount of any fee, 16 of 22 commission, percentage, gift, or consideration paid to the former COUNTY officer or employee. 23.2.0 Covenant of No Interest. CONTRACTOR and COUNTY covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Contract, and that only interest of each is to perform and receive benefits as recited in this Contract. 23.2.1 Federal Contract Requirements. The CONTRACTOR and its subcontractors must follow the provisions as set forth in Appendix II to Part 200, as amended, including but not limited to: 23.2.2 Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract" in 41 CFR Part 60 -1.3 must include the equal opportunity clause provided under 41 CFR 60- 1.4(b). 23.2.3 Davis - Bacon Act, as Amended (40 U.S.C. 3141 - 3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non - Federal entities must comply with the Davis -Bacon Act (40 U.S.C. 3141 -3144, and 3146 -3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction "). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The COUNTY must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The COUNTY must report all suspected or reported violations to the Federal awarding agency. The contractors must also comply with the Copeland "Anti- Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States "). As required by the Act, each contractor or subrecipient is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The COUNTY must report all suspected or reported violations to the Federal awarding agency. 23.2.4 Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 - 3708). Where applicable, all contracts awarded by the COUNTY in excess of $100,000 that involve the employment of mechanics or laborers must comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. 23.2.5 Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets 17 of 22 the definition of "funding agreement" under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. 23.2.6 Clean Air Act (42 U.S.C. 7401 7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 - 1387, as Amended). Contracts and subgrants of amounts in excess of $150,000 must comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). 23.2.7 Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220) must not be made to parties listed on the government -wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. 23.2.8 Byrd Anti - Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non - Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non - Federal award. 23.2.9 Procurement of recovered materials as set forth in 2 CFR § 200.322. 23.3.0 Other Federal Requirements. 23.3.1 Americans with Disabilities Act of 1990 (ADA). The CONTRACTOR will comply with all the requirements as imposed by the ADA, the regulations of the Federal government issued thereunder, and the assurance by the CONTRACTOR pursuant thereto. 23.3.2 Disadvantaged Business Enterprise (DBE) Policy and Obligation. It is the policy of the COUNTY that DBE's, as defined in 49 C.F.R. Part 26, as amended, shall have the opportunity to participate in the performance of contracts financed in whole or in part with COUNTY funds under this Contract. The DBE requirements of applicable federal and state laws and regulations apply to this Contract. The COUNTY and its CONTRACTOR agree to ensure that DBE's have the opportunity to participate in the performance of this Contract. In this regard, all recipients and contractors shall take all necessary and reasonable steps in accordance with applicable federal and state laws and regulations to ensure that the DBE's have the opportunity to compete for and perform contracts. The COUNTY and the CONTRACTOR and subcontractors shall not discriminate on the 18 of 22 basis of race, color, national origin or sex in the award and performance of contracts, entered pursuant to this Contract. 23.3.3 The CONTRACTOR shall utilize the U.S. Department of Homeland Security's E -Verify system to verify the employment eligibility of all new employees hired by the CONTRACTOR during the term of the Contract and shall expressly require any subcontractors or subconsultants performing work or providing services pursuant to the Contract to likewise utilize the U.S. Department of Homeland Security's E- Verify system to verify the employment eligibility of all new employees hired by the subcontractor or subconsultant during the Contract term. 23.3.4 NRCS Regulations. NRCS administers the EWP program through the following authorities: • Section 216, Public Law 81 -516 (33 U.S.C. Section 701b); • Section 403 of Title IV of the Agricultural Credit Act of 1978, Public Law 95 -334; and • Section 382, Title III, of the 1996 Farm Bill Public Law 104 -127; and • Codified rules for administration of the EWP program are set forth in 7 CFR 624. Article 24. Non - Waiver of Immunity. Notwithstanding the provisions of Section 768.28, Florida Statutes, the participation of the CONTRACTOR and the COUNTY in this Contract and the acquisition of any commercial liability insurance coverage, self - insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the COUNTY be required to contain any provision for waiver. Article 25. Privileges and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the COUNTY, when performing their respective functions under this Contract within the territorial limits of the COUNTY shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the COUNTY. Article 26. Legal Obligations and Responsibilities - Non - Delegation of Constitutional or Statutory Duties. This Contract is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Contract is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the COUNTY, except to the extent permitted by the Florida Constitution, state statute, and case law. Article 27. No Personal Liability. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Contract or be subject to any personal liability or accountability by reason of the execution of this Contract. Article 28. Non - Reliance by Non - Parties. No person or entity shall be entitled to rely upon the terms, or any of them, of this Contract to enforce or attempt to enforce any third -party claim or 19 of 22 entitlement to or benefit of any service or program contemplated hereunder, and the CONTRACTOR and the COUNTY agree that neither the CONTRACTOR nor the COUNTY or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Contract separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Contract. Article 29. Governing Law, Venue, Interpretation, Costs and Fees. This Contract shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Contract, COUNTY and CONTRACT agree that venue shall lie in the 16 Judicial Circuit, Monroe County, Florida, in the appropriate court or before the appropriate administrative body. This Contract shall not be subject to arbitration. Mediation proceedings initiated and conducted pursuant to this Contract shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. Article 30. Attorney's Fees and Costs. The COUNTY and CONTRACTOR agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Contract, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out -of- pocket expenses, as an award against the non- prevailing party, and shall include attorney's fees, courts costs, investigative, and out -of- pocket expenses in appellate proceedings. Article 31. Adjudication of Disputes or Disagreements. The COUNTY and CONTRACTOR agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Contract or by Florida law. This provision does not negate or waive the preceding provisions of this Contract concerning termination or cancellation. Article 32. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Contract, COUNTY and CONTRACTOR agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Contract or provision of the services under this Contract. COUNTY and CONTRACTOR specifically agree that no party to this Contract shall be required to enter into any arbitration proceedings related to this Contract. Article 33. Severability. If any term, covenant, condition or provision of this Contract (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Contract, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Contract shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Contract would prevent the accomplishment of the original intent of this Contract. The COUNTY and CONTRACTOR agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 20 of 22 Article 35. Attestations and Truth in Negotiation. CONTRACTOR agrees to execute such documents as COUNTY may reasonably require, including a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement. Signature of this Contract by CONTRACTOR shall act as the execution of a truth in negotiation certificate stating that wage rates and other factual unit costs supporting the compensation pursuant to the Contract are accurate, complete, and current at the time of contracting. The original contract price and any additions thereto shall be adjusted to exclude any significant sums by which the agency determines the contract price was increased due to inaccurate, incomplete, or concurrent wage rates and other factual unit costs. All such adjustments must be made within one year following the end of the Contract. Article 36. Authorized Signatory. The signatory for the CONTRACTOR, below, certifies and warrants that: (A) The CONTRACTOR's name in this Agreement is its full name. (B) He or she is authorized to act and contract on behalf of CONTRACTOR. Article 37. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Contract have been duly authorized by all necessary County and corporate action, as required by law. Article 38. Entire Agreement. This Agreement constitutes the entire Agreement between the County and the CONTRACTOR for the services contemplated herein. Any amendments or revisions to this agreement must be in writing and be executed in the same manner as this Agreement. Article 39. Binding Effect. The terms, covenants, conditions, and provisions of this Contract shall bind and inure to the benefit of the COUNTY and CONTRACTOR and subcontractors and their respective legal representatives, successors, and assigns Article 40. Section Headings. Section headings have been inserted in this Contract as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Contract and will not be used in the interpretation of any provision of this Contract. Article 41. Execution in Counterparts. This Contract may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Contract by ,;; ,:; • ' any such counterpart. ., • • • : Whereof, the parties have executed this Contract as indicated below. gc p : ;+ . BOARD OF COUNTY COMMISSI RS C KEVIN MADOK, CLERK MONROE COUNTY -"' c- E k -.,Ii• Ali S eputy Jerk David e, Mayor MONROE . b Nna F• ATTORNEY 21 of 22 ;• By. „IJ i _ //. A • By: Witness (Signature) / VIP- By: Hirb BO Print name and title: Donnie Brown x tness (Print Name) By: _ *' (14 4)/ On behalf of: Pumpout USA, Inc. tness (Signature) By: /Vdrl� ►`S i S Witness (Print Name) STATE OF F COUNTY OF \IVAtk 0 ,_ he foregoing instrument was acknowledged and attested before me this 22 day of 1 N- 2018 by bbf 1f4 ( Q R.b wo , who is personally known to me or produced L VQr5 ITCf as proof of identification and did take an oath. I INA_IAlill 4 ,/ .4 L._ 'Tot Publi 1 1. e11 o;,,, o�;;,, TAMMY Y. BROWN it iii ° *' MY COMMISSION # FF 947528 '�' EXPIRES: January 4, 2020 �CImrn 13VD03 . - - - Print Name 22 of 22 Exhibit "A." Scope of Services For Mobile Vessel Pumpout Service Pumpout USA will provide mobile vessel pumpout service to vessels located throughout areas of Monroe County within the Florida Keys. The pumpout service is provided to reduce or eliminate environmental impacts associated with the illegal discharge of sewage from vessels, and further enable compliance with regulations of the federal No Discharge Zone and the Proof of Pumpout Ordinance in Monroe County authorized under F.S. 327.60(4). The following sections describe the Scope of Work and Deliverables for the provision of mobile vessel pumpout service. Section A: Scope of Work 1. Mobile Vessel Pumpout Service Pumpout USA will provide mobile vessel pumpout service (Service) consisting of a minimum of four active marine pumpout vessels, and three backup pumpout vessels, to service (i.e. pumpout) recreational vessels located in the waters of Monroe County within the Florida Keys. The Service will be provided 8 hours per day, 5 business days per week. Each pumpout vessel placed into service will be capable of servicing 25 -50 vessels per day and each will be trailerable to locate to other service areas, as needed. The pumpout service will be provided at no charge to all anchored recreational vessels in the waters of Monroe County within the Florida Keys (up to once per week). Pumpout USA may also provide service to vessels at marinas (with priority given to marinas without pumpout facilities), but only after all anchored -out vessels are serviced. The first priority of each pumpout vessel will be servicing anchored vessels. Vessel owners will be encouraged by the County and Pumpout USA to register for routine pumpout service (see Registration of Customers below), which will assist in streamlining the service through the utilization of `identification decals' indicating participation in the pumpout program and orange flags to be flown when in need of a pumpout (decals and flags to be provided by Pumpout USA). Vessel waste will be offloaded and properly disposed of utilizing fixed pumpout stations located throughout the Keys, and when necessary hauled out by licensed haulers. In addition, the Contractor shall adhere to, and provide for, items described in the "Tasks / Deliverables" included in the associated DEP /CVA Agreement (attached). 1 of 4 2. Staffing Pumpout USA, at its own expense, will provide all personnel required to perform this contract and all personnel engaged in performing services under this contract shall be fully qualified, and, if required, to be authorized or permitted under State and local law to perform such services. Pumpout USA personnel shall not be employees of or have any contractual relationship with the County. The Contractor will provide Pumpout Vessel Captains and a Maintenance Captain, as well as a Project Manager that has extensive experience and training in the pumpout industry. The Project Manager will maintain an office and his/her primary duties will include: • Coordinating pump -out schedules; • Registering customers for service; • Obtaining registrants' contact information and location for pump -out service; • Contact point for FWC concerning "Proof of Pumpout" of vessels located in Managed Anchoring Zones. The Pumpout Vessel Captains and Maintenance Captain are employees of the Contractor and duties are: • Operate pumpout vessel on a weekly schedule within their designated service areas; • Maintain a supply of identification decals and orange pumpout flags; • Maintain a written daily log identifying date, miles traveled, pumpouts performed, gallons pumped from each vessel, and fuel purchased with receipt for reporting and reimbursement purposes. 3. Registration of Customers Registration forms for participation in the program will be made available online through the Pumpout USA website. Additionally, registration forms will be made available at the Monroe County Marine Resources Office, various marinas, and directly from pumpout vessel operators in the service areas. Registration to participate in the program is free for recreational vessels. The participant submits his/her registration information, which will be entered into the service schedule. Upon the first visit by the pumpout vessel the pumpout vessel operator will affix the identification decal to the bow of the vessel (adjacent to the state vessel registration decal location), and attach the orange service banner to the bow rail. A service schedule for each pumpout vessel placed in service will be made available on the Pumpout USA website. The registration forms provided on the website will request the mooring location of the vessel (lat/long), registration number and state, size and type of the vessel, the name of the vessel, and a point of contact for the vessel. The registration form must be signed by the vessel owner and/or captain and allows the 2 of 4 Pumpout USA Pumpout Vessel Captain permission to pumpout the participating vessel and board the vessel, if necessary. 4. Public Education Pumpout USA will develop a website, public education materials, instructional materials, marketing materials, and registration packets in support of the mobile vessel pumpout service program. All educational materials will focus on the importance of clean water and the impacts of sewage discharge into the environment. These materials will be made available online through the Pumpout USA website and distributed to participating marinas, local sporting goods merchants, Monroe County Offices, and FWC where they can be accessed by vessel owners and be distributed by FWC and Pumpout Vessel Captains. The Project Manager (or his/her designee) will also participate in, and promote clean water through this pumpout service at public gatherings, marina meetings, Fishing Clubs, Civic Organization Meetings, Secondary Education Science Classes, etc. • 5. Coordination with County staff and FWC Pumpout USA will identify to the FWC any anchored vessels that are not participating in the program or requesting pumpouts. Section B: Deliverables 1. Monthly Pumpout Logs Signed monthly pumpout logs will be submitted, specific to each pumpout vessel and broken down by service area, indicating the number of pumpouts performed, volume of sewage pumped out, and number of individual vessels pumped out. 2. Quarterly Reports Pumpout USA will submit signed, notarized quarterly reports showing: • Number of pumpouts performed in each service area (including number of out of state vessels) and total for the Keys; • Gallons of sewage pumped from each service area and total for the Keys; • Total number of individual vessels pumped out; • Number of in -state and out -of -state vessels pumped out; • The routes and locations of the pumpout vessels; • Gallons of fuel used in support of program; • Education and outreach activities. 3 of 4 3. Invoicing Pumpout USA will submit a signed invoice on Pumpout USA letterhead for each quarter's payment, as stipulated in the contract. The invoice cost (as described in the contract) will be based on a per unit rate. In addition to the above described reporting and invoicing requirements, the Contractor will provide all receipts, invoices and other applicable documents as described in the body of the Agreement, and as required by the DEP funding agreements associated with, and referenced in the Agreement (and attached). 4 of 4 ACORD CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDDIYYYY) 08/01/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Gallagher Charter Lakes (A/C o, Ext): 616-975-3500 FAX N Fax616 975 0670 3455 East Paris Ave SE E -MAIL ADDRESS: Grand Rapids, M149512 INSURER(S) AFFORDING COVERAGE NAIC # INSURERA: XL Specialty Insurarice Company INSURED INSURER B : Pump Out USA INSURERC: 1150 Highway 83 North INSURER D : INSURER E : DefuniakSprings FL 32433 INSURERF: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP W (M LIMITS LTR INSD VD POLICY NUMBER M /DD/YYYY) (MMIDD/YYYY) A COMMERCIAL GENERAL LIABILITY UM00046315MA16A 12/18/201712/18 /2018 EACH OCCURRENCE $ 1,000,000 DAMAGE CLAIMS -MADE X OCCUR PREMISES O (Ea occur ence) $ 100 000 MED EXP (Any one person) $ 10,000 PERSONAL &ADVINJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 A POLICY PRO JECT LOC XLM00000217 12/18/201712/18 /2018 PRODUCTS - COMP /OP AGG $ 2,000,000 X OTHER: POLLUTION LIAB. POLLUTION $ 1,000,000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ (Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS ONLY AUTOS HIRED NON -OWNED PROPERTY DAMAGE AUTOS ONLY AUTOS ONLY (Per accident) UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N STATUTE ER ANYPROPRIETOR/PARTNER/EXECUTIVE N / A Ak�RRnV BY RIS ANAGEMENY E.L. EACH ACCIDENT $ OFFICER/MEMBEREXCLUDED7 (Mandatory In NH) BY —A. a _ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under DA `L E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS below WAI • / • Y S DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) LIABILITY COVERAGE IS EXTENDED TO INCLUDE CREW LIABILITY (JONES ACT) AT A LIMIT OF $1,000,000 SUBJECT TO A $5,000 DEDUCTIBLE ADDITIONAL INSURED: MONROE COUNTY BOARD OF COMMISSIONERS 1100 SIMONTON ST., RM 2268, KEY WEST, FL 33040 CERTIFICATE HOLDER CANCELLATION Additional Insureds: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE State Of Florida, Dept of EPA THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 3900 Commonwealth Blvd. Tallahassee, FL 32399 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Donald Sayer © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD