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03/21/2019 Agreement
County of h `onroe � BOARD OF COUNTY COMMISSIONEIL4 _ Mayor Sylvia Murphy,District 5 The Florida Keys r Mayor Pro Tem Danny Kolhage,District I r Michelle Coldimn,District 2 Heather Carruthers,District 3 David Rice,District 4 County Commission Meeting March 21, 2019 Agenda.Item Summary #5361 ADD ON DAY OF MEETING: IF APPROVED, WILL BE ADD ON ITEM#Q-5 BULK ITEM: Yes DEPARTMENT: County Attorneys Office TIME APPROXIMATE: STAFF CONTACT: Chris Ambrosio(305)292-3470 N/A AGENDA ITEM WORDING: Approval to hire civil and landscape designer and athletic field expert Bill McBride from FTE Sports, to analyze and report on the development, repairs, current conditions and potential future conditions and repair costs of the Bernstein Park athletic fields. ITEM BACKGROUND: Monroe County hired Burke Construction Group, Inc. (Burke) to redevelop Bernstein Park(Park), construct raised natural turf athletic fields and install drainage and irrigation systems. In the final phase of construction, Hurricane Irma caused some damages to the Park and athletic fields. The precise damages,particularly to the fields and its systems, are unknown because Burke submitted inconsistent and varying damage reports and claims to its builder's risk insurance company and to the County. Following the hurricane;in February 2018, Burke submitted a sworn insurance claim for demolition and replacement of the fields, turf and its systems at a total cost of$1,423,513 (as part of its larger claim submitted to the insurer). Burke received an insurance payment for its alleged hurricane repair work on the Park and fields. Then in March 2018, Burke reported to the County that it repaired the fields and cleaned the drainage structure for a total cost of$413,383. The actual repairs that Burke made to the fields and systems are unknown because Burke has not provided the County with sufficient information or an accurate damage repair report.Burke also excluded the County from the entire claims adjustment, assessment, investigation, evaluation and payment of Burke's damage claims. Burke relied on a turf and field evaluation report by Ellis Turf Services, Inc. (Ellis) to support its insurance claim of demolition and replacement of the fields, turf and drainage system. The Ellis report is attached. Essentially, Ellis recommended demolition and replacement of the field, all of the turf,all rootzone mix,and drainage and irrigation pipes.After Burke claims it repaired the fields,the fields have demonstrated flooding and drainage problems during rain events and inability to tolerate normal use.The extent of current and future repairs and costs needed on the fields is unknown. Staff recommends hiring civil and landscape designer and athletic field expert Bill McBride of FTE Sports. Mr. McBride would assess the construction and repairs made by Burke and the current condition of the fields and systems, report on the potential for remedial work on the field, and provide an estimate regarding the necessary repairs and likely costs associated with making the fields fully and properly functional. McBride is the FTE Sports Director of Sports and Lead Playing Field Designer. FTE Sports' fees schedule and the resumes of McBride and his partner, Ravi Devaguptapu, P.E, are attached. McBride requests that they work on an hourly estimated fee not to exceed amount of$20,000.00. That would cover a scope of services for three (3) meetings in Monroe County with County Staff, two day job site visit, review of all related playing field documents and the preparation of findings based on all the information obtained during meetings, project site investigation, review of all related playing field documents provided by the County. McBride's Scope of Services will involve: Phase 1-Project Meetings FTE sports shall attend a total of (3) meetings in Monroe County with County Staff to provide professional playing field engineering support services as it relates to the builders risk claim for Bernstein Park Fields. Task No. 1.01: Meeting with County Staff to obtain historical information about the design, contract agreement and construction schedule between the County and the Contractor. In addition, obtain all the necessary copies of all the related design documents, shop drawings,project progress reports and other supporting documentations. Task No. 1.02: Meeting with County Staff to review FTE sports initial written review report based on the information provided by the County and the findings based on the two day field observation conducted by FTE sports. Task No. 1.03: FTE sports will refine its written report and findings based on any clarifications as of a result of meetings with County Staff and to review the final written report. Phase 2-Pia.in2 Field Observation Report: FTE sports shall prepare a written field observation report of its findings over a course of a two day period. The written report will contain all the necessary background information provided by the County, playing field peer review of the design document, comments related to the storm damage assessment PREVIOUS RELEVANT BOCC ACTION: N/A. CONTRACT/AGREEMENT CHANGES: New contract STAFF RECOMMENDATION: Approval to hire FTESports athletic field expert Bill McBride for the purposes stated above. DOCUMENTATION: Ellis Turf Services Inc,Evaluation Bernstein Park-FTESports Hourly Fee Schedule Exhibit Bernstein Park-Hourly Fee Schedule modified Exhibit Resume Bill McBride FTESports Resume Ravi Devaguptapu FTESports FINANCIAL IMPACT: Effective Date: 21 March 2019 Expiration Date: TBD Total Dollar Value of Contract: NTE$20,000 Total Cost to County: NTE$20,000 Current Year Portion: NTE$20,000 Budgeted: Source of Funds: CPI: N/A Indirect Costs: Staff time involved Estimated Ongoing Costs Not Included in above dollar amounts: N/A Revenue Producing: NO If yes,amount: Grant: N/A County Match: N/A Insurance Required: N/A Additional Details: N/A REVIEWED BY: Chris Ambrosio Completed 03/18/2019 4:52 PM Bob Shillinger Completed 03/18/2019 5:06 PM Kevin Wilson Completed 03/19/2019 3:21 PM Budget and Finance Completed 03/19/2019 3:24 PM Maria Slavik Completed 03/19/2019 3:29 PM Kathy Peters Completed 03/19/2019 4:10 PM Board of County Commissioners Pending 03/21/2019 9:00 AM AGREEMENT FOR PROFESSIONAL FORENSIC TURF TECHNICAL ANALYSIS ON BERNSTEIN PARK ATHLETIC FIELDS, MONROE COUNTY, FL. This Agreement("Agreement")made and entered into April 2,2019 by and between Monroe County, a political subdivision of the State of Florida, whose address is 1100 Simonton St. Key West, FI, 33040, its successors and assigns, hereinafter referred to as"OWNER" or "COUNTY,"and Florida Transportation Engineering, Inc.(d.b.a.)FTE sports,whose address is 8250 Pascal Dr.Punta Gorda, FL 33950, its successors and assigns, hereinafter referred to as "CONSULTANT"or"FTE", WITNESSETH: WHEREAS, COUNTY desires to employ the professional services of FTE, and William McBride, Vice President,and Ravi Devaguptapu, P.E.,for expert forensic natural turf analysis of the Bernstein Park athletic fields located at 6751 5th St., Stock Island, Monroe County, Florida ("Project")and; WHEREAS, CONSULTANT has agreed to provide professional services and deliverables as more fully described below in a scope of services attached hereto as Attachment "A", for the fees and costs set forth below attached hereto as Attachment"B", and at a not to exceed price of$20,000.00 for work on the Project, less and except the direct project reimbursable expenses estimated at expenses per trip of$1,000.00. The professional services required by this Agreement will be for services in the form of a professional services contract, commencing upon the full execution of this Agreement and ending within four(4) months thereafter. COUNTY may add to or remove from the CONSULTANT's scope of services or receive additional services pursuant to a task order issued by the COUNTY and agreed to by the CONSULTANT.Task orders will contain specific scopes of work, time schedules, charges and payment conditions, and additional terms and conditions that are applicable to such task orders,as agreed to by the COUNTY and CONSULTANT. Execution of a task order by the COUNTY and the CONSULTANT constitutes the COUNTY's written authorization to CONSULTANT to proceed with the services described in the task order.The terms and conditions of this Agreement shall apply to each task order, except to the extent expressly modified.When a Task Order is to modify a provision of this Agreement,the Article of this Agreement to be modified will be specifically referenced in the task order and the modification shall be precisely described. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, COUNTY and CONSULTANT agree as follows: ARTICLE 1 1.1 REPRESENTATIONS AND WARRANTIES By executing this Agreement, CONSULTANT makes the following express representations and warranties to the COUNTY: 1 1.1.1 CONSULTANT shall maintain all necessary licenses, permits or other authorizations necessary to perform the work required in this Agreement for the Project until the CONSULTANT's duties hereunder have been fully satisfied. 1.1.2 CONSULTANT has or will soon after execution of this Agreement become familiar with the Project site and the local conditions under which the Work is to be completed. 1.1.3 CONSULTANT shall prepare all documents required by this Agreement including but not limited to, the report(s) referenced in Attachment A, in such a manner that they shall be accurate, adequate for use by COUNTY and shall be in conformity and comply with all applicable law, codes and regulations and industry standards. 1.1.4 CONSULTANT assumes full responsibility to the extent allowed by law with regards to it's performance and those directly under it's employ. 1.1.5 CONSULTANT's services shall be performed as expeditiously as is consistent with professional skill and care in the industry of professional forensic natural turf analysis. In providing all services pursuant to this Agreement, the CONSULTANT 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 COUNTY to terminate this contract immediately upon delivery of written notice of termination to the CONSULTANT. 1.1.6 At all times and for all purposes under this Agreement the CONSULTANT is an independent contractor and not an employee of the Monroe County Board of County Commissioners. No statement contained in this Agreement shall be construed so as to find the CONSULTANT or any of his/her employees, contractors, servants, or agents to be employees of Monroe County. 1.1.7 The CONSULTANT 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 Agreement or with the provision of services or goods under this Agreement. ARTICLE II SCOPE OF BASIC SERVICES 2.1 DEFINITION CONSULTANT's Scope of Services consist of those described in Attachment A.CONSULTANT may also perform for the COUNTY additional services as described in individual task orders in accordance with the requirements outlined in the Agreement and the specific task order as agreed to by the COUNTY and CONSULTANT. CONSULTANT shall commence work on the services provided for in this Agreement and any task order promptly upon his receipt of a written notice to proceed issued by the COUNTY. 2.2 CORRECTION OF ERRORS,OMISSIONS, DEFICIENCIES The CONSULTANT shall,without additional compensation, promptly correct any errors,omissions, deficiencies, or conflicts in the work product of the CONSULTANT or its subconsultants, or both. 2.3 NOTICE REQUIREMENT 2 All written correspondence to the COUNTY shall be dated and signed by an authorized representative of the CONSULTANT. Any notice required or permitted under this Agreement shall be in writing and hand delivered or mailed, postage pre-paid, to the COUNTY by certified mail, return receipt requested,to the following: Mr. Cary Knight. Director of Project Management Monroe County 1100 Simonton Street Room 2-216 Key West, FL 33040 And: Mr. Kevin Wilson, P.E. Monroe County Assistant County Administrator 1100 Simonton Street, Room 2-216 Key West, FL 33040 For the Consultant: William McBride, Vice President, and Ravi Devaguptapu, P.E. Florida Transportation Engineering, Inc. (d.b.a.)FTE sports 8250 Pascal Dr. Punta Gorda, FL 33950 ARTICLE III ADDITIONAL SERVICES 3.1 Additional services are services not included in the Scope of Basic Services. Should the COUNTY require additional services they shall be paid for by the COUNTY at rates or fees negotiated at the time when services are required, but only if approved by the COUNTY before commencement. 3.2 If Additional Services are required, the COUNTY shall issue a letter requesting and describing the requested services to the CONSULTANT. The CONSULTANT shall respond with a fee proposal to perform the requested services.Only after receiving a task order to the Agreement and a notice to proceed from the COUNTY, shall the CONSULTANT proceed with Additional Services. 3.3 Additional professional services will be provided only as agreed upon by COUNTY and FTE sports and shall be provided in writing and in accordance with the attached Hourly Fee Schedule unless otherwise negotiated.Authorized additional professional services shall also be subject to the general contract conditions/requirements. Examples of additional professional services include, but are not limited to,the following: • Additional reviews due to changes in regulations; "SD, DD, BID"document revisions due to changes in the approved "CD's"due to value engineering requests from Monroe County. • project meetings, unless otherwise indicated above • on-site observation meeting, unless otherwise indicated above • playing field fencing 3 • sports lighting • playing field design • playing field underdrain pump station • irrigation system design, unless otherwise indicated above • wall padding design • certification for sports field lighting • state of local permitting • permitting fees, owners shall be responsible for all permitting fees • utility company impact fee studies or utility connection fee negotiations • rezoning application for land use • concurrency studies; economic analyses • Army Corp permitting,flood plain studies and boundary survey • environmental engineering services • geotechnical engineering services • landscape architectural services, unless otherwise indicated above • land surveying services • electrical engineering • structural engineering • soil, environmental, plant tissue laboratory testing • civil or landscape design services are part of this contract unless otherwise indicated above • expert witness testimony • construction administration services • other non-listed professional services ARTICLE IV COUNTY'S RESPONSIBILITIES 4.1 The COUNTY shall provide information and documents related to the Project necessary for the CONSULTANT to perform the scope of services as more fully listed below.The COUNTY shall provide copies of necessary documents required to complete the work.Any information that may be of assistance to the CONSULTANT that the COUNTY has immediate access to will be provided as requested. 1.Complete set of the final signed and sealed playing field construction plans and associated details in PDF format. 2. Complete set of the final project written specifications as it relates to the playing field(s)in PDF format. 3. All As-Built signed and sealed playing field documents in PDF format. 4. An approved copy of the water management district permit (ERP) in PDF format. If applicable. 5. Copy of the initial Contractors bidder complete submission package prior to award. 6.Copy of the fully executed contract signed by the Contractor and or playing field Contractor. 4 • 7. Copies of the plaintiff justification letter(s)and any third party technical reports and or cost 1 estimates. 8. All copies of approved shop drawings associated with the complete construction of the playing field(s). 9. Supporting certified laboratory testing results conducted by a third party environmental laboratory, qualified plant and tissue pathology testing and IJ.S.G.A. certified soil laboratory testing after the hurricane.event had occurred that supports his/her claim that the plant and rootzone contained high levels of contaminations that would, in fact, result in environmental negative impacts to the current growth of a healthy stand of turfgrass and rootzone material. 10.Any original geotechnical engineering reports and or field testing results in PDF format. 11. Copy of all pay application submitted, approved and any outstanding pay applications. 12. FTE sports reserves the rights to request any additional information as a result of its initial on-site field observations and the review of the above information provided. 4.2 The COUNTY designates Cary Knight, Director of Project Management,as representative to act on the COUNTY's behalf with respect to the Project. The COUNTY or its representative shall render decisions in a timely manner pertaining to work submitted by the CONSULTANT in order to avoid unreasonable delay in the orderly and sequential progress of the CONSULTANT's services. 4.3 Prompt written notice shall be given by the COUNTY and its representative to the CONSULTANT if they become aware of any fault or defect in the Project or non-conformance with the Agreement Documents.Written notice shall be deemed to have been duly served if sent pursuant to paragraph 2.3. 4.4 The COUNTY shall furnish the required information and services and shall render approvals and decisions as expeditiously as necessary for the orderly progress of the CONSULTANT's services and work of the contractors. 4.5 The COUNTY's review of any documents prepared by the CONSULTANT or its subconsultants shall be solely for the purpose of determining whether such documents are generally consistent with the COUNTY's criteria, as, and if, modified. No review of such documents shall relieve the CONSULTANT of responsibility for the accuracy, adequacy, fitness, suitability or coordination of its work product. ARTICLE V INDEMNIFICATION AND HOLD HARMLESS AND DEFENSE 5.1 The CONSULTANT covenants and agrees to indemnify and hold harmless COUNTY/Monroe County and Monroe County Board of County Commissioners, its officers and employees from liabilities, damages, losses and costs, including but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentional wrongful conduct of the CONSULTANT, subcontractor(s) and other persons employed or utilized by the CONSULTANT in the performance of the Agreement. 5.2 The first ten dollars ($10.00) of remuneration paid to the CONSULTANT is for the indemnification provided for above. The extent of liability is in no way limited to, reduced,or 5 lessened by the insurance requirements contained elsewhere within this Agreement. Should any claims be asserted against the COUNTY by virtueof any deficiency or ambiguity in the plans and specifications provided by the CONSULTANT, the CONSULTANT 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. 5.3 In the event the completion of the project (to include the work of others) is delayed or suspended as a result of the CONSULTANT's failure to purchase or maintain the required insurance,the CONSULTANT shall indemnify COUNTY from any and all increased expenses resulting from such delays. Should any claims be asserted against COUNTY by virtue of any deficiencies or ambiguity in the plans and specifications provide by the CONSULTANT the CONSULTANT agrees and warrants that CONSULTANT will 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. 5.4 The extent of liability is in no way limited to, reduced or lessened by the insurance requirements contained elsewhere within the Agreement. 5.5 This indemnification shall survive the expiration or early termination of the Agreement. ARTICLE VI PERSONNEL 6.1 PERSONNEL The CONSULTANT shall assign only qualified and licensed personnel as required to perform any work or service concerning the Project. At the time of execution of this Agreement, the parties anticipate that the following named individuals will perform those functions as indicated: NAME FUNCTION William J. (Bill) McBride, Sr. V. P. Project Manager for civil and landscape designer expert Ravi Devaguptapu, P.E. Principal Engineer So long as the individuals named above remain actively employed or retained by the CONSULTANT, they shall perform the functions indicated herein. If they are replaced, the CONSULTANT shall immediately notify the COUNTY of the change in personnel. ARTICLE VII COMPENSATION 7.1 PAYMENT SUM 7.1.1 The COUNTY shall pay the CONSULTANT monthly in current funds for the CONSULTANT's performance of this Agreement based on the hourly rates outlined in Attachment B, or a Not to Exceed Amount negotiated at the time of performance. 7.2 PAYMENTS 6 7.2.1 For its assumption and performances of the duties, obligations and responsibilities'set forth herein,the CONSULTANT shall be paid monthly. Payment will be made pursuant to the Local Government Prompt Payment Act 218.70, et seq. Florida Statutes. (A) If the CONSULTANT's duties,obligations and responsibilities are materially changed by amendment to this Agreement after execution of this Agreement, compensation due to the CONSULTANT shall be equitably adjusted, either upward or downward; (B) As a condition precedent for any payment due under this Agreement, the CONSULTANT shall submit monthly, unless otherwise agreed in writing by the COUNTY, a proper invoice to COUNTY requesting payment for services properly rendered and reimbursable expenses due hereunder. The CONSULTANT's invoice shall describe with reasonable particularity the service rendered. The CONSULTANT's invoice shall be accompanied by such documentation or data in support of expenses for which payment is sought at the COUNTY may require. 7.3 REIMBURSABLE EXPENSES Allowable Reimburasable expenses and travel expense reimbursements are subject to the limitations of Florida Statute 112.061 and Monroe County Codes and Ordinances, and set forth as: - Mileage per Trip: $0.53 Per Mile; Economy flight if necessary. Meals per Trip: $47.00 per day. $6.50 Breakfast, $13.50 Lunch, $27.00 Dinner. Tolls, Rentral, Hotel, Parking:Actual Most Economical Cost Basis. Direct project reimbursable expenses. Estimated direct reimbursable expenses per trip $1,000.00 7.4 COUNTY's performance and obligation to pay under this Agreement 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 and its duration. ARTICLE VIII INSURANCE 8.1 The CONSULTANT shall obtain insurance as specified and maintain the required insurance at all times that this Agreement is in effect. In the event the completion of the project (to include the work of others)is delayed or suspended as a result of the CONSULTANT's failure to purchase or maintain the required insurance, the CONSULTANT shall indemnify the COUNTY from any and all increased expenses resulting from such delay. i8.2 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. 8.3 CONSULTANT shall obtain and maintain the following policies: 7 A. Workers' Compensation insurance as required by the State of Florida, sufficient to respond to Florida Statute 440. B. Employers Liability Insurance with limits of$1,000,000 per Accident,$1,000,000 Disease, policy limits, $1,000,000 Disease each employee. C. Comprehensive business automobile and vehicle liability insurance covering claims for injuries to members of the public and/or damages to property of others arising from use of motor vehicles,including onsite and offsite operations,and owned, hired or non-owned vehicles, with $300,000 per occurrence, $200,000 per person, and $200,000 property damage, or$300,000 Combined Single Limit D. Commercial general liability,including Personal Injury Liability,covering claims for injuries to members of the public or damage to property of others arising out of any covered act or omission of the CONSULTANT or any of its employees, agents or subcontractors or subconsultants, including Premises and/or Operations, Products and Completed Operations, Independent Contractors; Broad Form Property Damage and a Blanket Contractual Liability Endorsement with $1,000,000 Combined Single Limit. An Occurrence Form policy is preferred. If coverage is changed to or provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported must extend for a minimum of forty-eight (48) months following the termination or expiration of this contract. E. Professional Liability Errors and Omissions professional liability insurance of$1,000,000 per occurrence and$2,000,000 annual aggregate. If the policy is a"claims made"policy, CONSULTANT shall maintain coverage or purchase a "tail" to cover claims made after completion of the project to cover the statutory time limits in Chapter 95 of the Florida Statutes. F. COUNTY shall be named as an additional insured with respect to CONSULTANT's liabilities hereunder in insurance coverages identified in Paragraphs C and D. G. CONSULTANT shall require its subconsultants to be adequately insured at least to the limits prescribed above, and to any increased limits of CONSULTANT if so required by COUNTY during the term of this Agreement. COUNTY will not pay for increased limits of insurance for subconsultants. H. CONSULTANT shall provide to the COUNTY certificates of insurance or a copy of all insurance policies including those naming the COUNTY as an additional insured at the discretion and request of COUNTY.The COUNTY reserves the right to require a certified complete copy of such policies, including all amendments, endorsements, exclusions or changes to the policy, upon request. I. If the CONSULTANT participates in a self-insurance fund, a Certificate of Insurance will be required and provided to COUNTY. In addition, the CONSULTANT may be required to submit updated financial statements from the fund upon request from the COUNTY. ARTICLE IX MISCELLANEOUS a • 9.1 SECTION HEADINGS Section headings have been inserted in this Agreement as a matter of convenience pf reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 9.2 OWNERSHIP OF THE PROJECT DOCUMENTS The documents prepared by the CONSULTANT for the Project and provided to the COUNTY may be reproduced and copied without acknowledgement or permission of the CONSULTANT for purposes deemed necessary by the COUNTY. COUNTY agrees that by executing this Agreement, FTE sports retains all legal copyrights and intellectual property(IP)under the copyright act of 1976,codified in title 17 of the United States Code of any and all documents prepared in association with this project. Reuse of any documents, details or specifications is strictly prohibited without prior written authorization. FTE sports retains the right to stop all work and not to release any or all portions of its;reports, designs or specifications in electronic format(AutoCAD or PDF) associated with this project, if any outstanding invoice payments are not paid within sixty(60)days of initial invoices date. 9.3 SUCCESSORS AND ASSIGNS The CONSULTANT shall not assign or subcontract its obligations under this Agreement, except in writing and with the prior written approval of the Board of County Commissioners for Monroe County and the CONSULTANT, which approval shall be subject to such conditions and provisions as the Board 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 Agreement. 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. 9.4 NO THIRD PARTY BENEFICIARIES Nothing contained herein shall create any relationship, contractual or otherwise,with or any rights in favor of, any third party. 9.5 TERMINATION OR SUSPENSION A. In the event that the CONSULTANT shall be found to be negligent in any aspect of service,the COUNTY shall have the right to terminate this Agreement after five (5)days written notification to the CONSULTANT. B. Either of the parties hereto may cancel this Agreement without cause by giving the other party sixty(60)days written notice of its intention to do so. C. Termination for Cause and Remedies: In the event of breach of any contract terms,the COUNTY retains the right to terminate this Agreement. The COUNTY may also terminate this Agreement for cause with CONSULTANT should CONSULTANT fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, prior to termination,the COUNTY shall provide CONSULTANT with seventy-two(72)hours'notice and provide the CONSULTANT with an opportunity to cure the breach that has occurred. If the breach is not cured,the Agreement will be terminated for cause. If the COUNTY terminates this Agreement with the CONSULTANT, COUNTY 9 shall pay CONSULTANT the sum due the CONSULTANT under this Agreement prior to termination, unless the cost of completion to the COUNTY exceeds the funds remaining in the contract. However,the COUNTY reserves the right to assert and seek an offset for damages caused by the breach. The maximum amount due to CONSULTANT shall not in any event exceed the spending cap in this Agreement. In addition, the COUNTY reserves all rights available to recoup monies paid under this Agreement, including the right to sue for breach of contract and including the right to pursue a claim for violation of the COUNTY's False Claims Ordinance, located at Section 2-721 et al. of the Monroe County Code. D. Termination for Convenience: The COUNTY. may terminate this Agreement for convenience, at any time, upon sixty(60)days' notice to CONSULTANT. If the COUNTY terminates this Agreement with the CONSULTANT, COUNTY shall pay CONSULTANT the sum due the CONSULTANT under this Agreement prior to termination, unless the cost of completion to the COUNTY exceeds the funds remaining in the contract. The maximum amount due to CONSULTANT shall not exceed the spending cap in this Agreement. In addition,the COUNTY reserves all rights available to recoup monies paid under this Agreement, including the right to sue for breach of contract and including the right to pursue a claim for violation of the COUNTY's False Claims Ordinance, located at Section 2-721 et al. of the Monroe County Code. E. Scrutinized Companies: For Contracts of any amount, if the County determines that the Consultant has submitted a false certification under Section 287.135(5), Florida Statutes or has been placed on the Scrutinized Companies that Boycott Israel List, or is engaged in a boycott of Israel, the County shall have the option of(1)terminating the Agreement after it has given the Consultant written notice and an opportunity to demonstrate the agency's determination of false certification was in error pursuant to Section 287.135(5)(a), Florida Statutes, or (2) maintaining the Agreement if the conditions of Section 287.135(4), Florida Statutes,are met. For Contracts of$1,000,000 or more, if the County determines that the Consultant submitted a false certification under Section 287.135(5), Florida Statutes, or if the Consultant has been placed on the Scrutinized Companies with Activities in the Sudan List,the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List or been engaged in business operations in Cuba or Syria, the County shall have the option of (1) terminating the Agreement after it has given the Consultant written notice and an opportunity to demonstrate the agency's determination of false certification was in error pursuant to Section 287.135(5)(a), Florida Statutes,or(2)maintaining the Agreement if the conditions of Section 287.135(4), Florida Statutes,are met 9.6 Not used. 9.7 PUBLIC ENTITIES CRIMES 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 10 • Statutes, for CATEGORY TWO for a period of thirty-six (36) months from the date of being placed on the convicted vendor list. By signing this Agreement, CONSULTANT represents that the execution of this Agreement will not violate the Public Entity Crimes Act(Section 287.133, Florida Statutes). Violation of this section shall result in termination of this Agreement and recovery of all monies paid hereto, and may result in debarment from COUNTY's competitive procurement activities. In addition to the foregoing, CONSULTANT further represents that there has been no determination, based on an audit,that it or any subconsultant 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 CONUSULTANT has been placed on the convicted vendor list. CONSULTANT 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. 9.8 MAINTENANCE OF RECORDS CONSULTANT shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Records shall be retained for a period of ten (10)years from the termination of this Agreement. Each party to this Agreement or its authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. If an auditor employed by the COUNTY or Clerk determines that monies paid to CONSULTANT pursuant to this Agreement were spent for purposes not authorized by this Agreement, or were wrongfully retained by the CONSULTANT, the CONSULTANT 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. Right to Audit Availability of Records. The records of the parties to this Agreement relating to the Project, shall be open to inspection and subject to audit and/or reproduction by Owner's representative and/or agents of Owner. Owner may also conduct verifications such as, but not limited to,verifying information and amounts through interviews and written confirmations with employees, subcontractors,suppliers, and contractors representatives.All records shall be kept for ten (10)years after Final Completion. 9.9 GOVERNING LAW,VENUE, INTERPRETATION, COSTS,AND FEES This Agreement 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 Agreement, COUNTY and CONSULTANT agree that venue shall lie in the 16th Judicial Circuit, Monroe County, Florida, in the appropriate court or before the appropriate administrative body.This Agreement shall not be subject to arbitration. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 11 9.10 SEVERABILITY If any term, covenant, condition or provision of this Agreement(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 Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement 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 Agreement would prevent the accomplishment of the original intent of this Agreement.The COUNTY and CONSULTANT agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 9.11 ATTORNEY'S FEES AND COSTS The COUNTY and CONSULTANT 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 Agreement,the prevailing party shall be entitled to reasonable attorney's fees, and court costs, as an award against the non-prevailing party, and shall include attomey's fees, and courts costs in appellate proceedings. 9.12 BINDING EFFECT The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the COUNTY and CONSULTANT and their respective legal representatives, successors, and assigns. 9.13 AUTHORITY Each party represents and warrants to the other that the execution,delivery and performance of this Agreement have been duly authorized by all necessary County and corporate action, as required by law. 9.14 CLAIMS FOR FEDERAL OR STATE AID CONSULTANT and COUNTY agree that each shall be,and is,empowered to apply for,seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 9.15 ADJUDICATION OF DISPUTES OR DISAGREEMENTS COUNTY and CONSULTANT 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 Agreement or by Florida law. This provision does not negate or waive the provisions of paragraph 9.5 concerning termination or cancellation. 9.16 COOPERATION In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, COUNTY and CONSULTANT 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 Agreement or provision of the services under this Agreement. COUNTY and 12 • CONSULTANT specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 9.17 NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY The parties 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 Agreement automatically terminates without any further action on the part of any party,effective the date of the court order. The parties agree 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 VII of the Civil Rights Act of 1964 (PL 88-352), which prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC §§ 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 §794), which prohibits discrimination on the basis of handicaps;4)The Age Discrimination Act of 1975,as amended (42 USC §§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, §§523 and 527 (42 USC §§690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC §§ 3601 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§§ 12101), as amended from time to time, relating to nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter 14, Article II, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11) any other nondiscrimination provisions in any federal or state statutes which may apply to the parties to, or the subject matter of,this Agreement. During the performance of this Agreement, the CONSULTANT, in accordance with Equal Employment Opportunity(30 Fed. Reg. 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, Amending Executive Order 11246 Relating to Equal Employment Opportunity, and implementing regulations at 41C.F.R.Part 60(Office of Federal Contract Compliance Programs,Equal Employment Opportunity, Department of Labor). See 2 C.F.R. Part 200, Appendix II,¶C,agrees as follows: 1) The consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity,or national origin.The consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race,color,religion,sex,sexual orientation,gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination;rates of pay or other forms of compensation;and selection for training, including apprenticeship. The consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this 13 nondiscrimination clause. 2) The consultant will, in all solicitations or advertisements for employees placed by or on behalf of the consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. 3) The consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing,or action, including an investigation conducted by the employer, or is consistent with the consultant's legal duty to furnish information. 4) The consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the consultant's commitments under section 202 of Executive Order 11246 of September 24, 1965,and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 5) The consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 6) The consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, ' and orders. 7) In the event of the consultant's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders,this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24,'1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 9.18 COVENANT OF NO INTEREST CONSULTANT 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 Agreement,and that only interest of each is to perform and receive benefits as recited in this Agreement. 14 9.19 CODE OF ETHICS 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. 9.20 NO SOLICITATION/PAYMENT CONSULTANT 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 Agreement 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 Agreement. For the breach or violation of the provision,the CONSULTANT agrees that the COUNTY shall have the right to terminate this Agreement 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. 9.21 PUBLIC ACCESS. The CONSULTANT and COUNTY shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the CONSULTANT and COUNTY in connection with this Agreement;and the COUNTY shall have the right to unilaterally cancel this Agreement upon violation of this provision by CONSULTANT. CONSULTANT shall be referred to herein also as "Contractor" for this provision only: 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 Constitution of Florida.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 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. 15 (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 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- BRIANt MONROECOUNTY-FL.GOV, MONROE COUNTY ATTORNEY'S OFFICE 1111 12TH Street, SUITE 408, KEY WEST, FL 33040. 9.22 NON-WAIVER OF IMMUNITY Notwithstanding the provisions of Section 758.28, F.S., the participation of the CONSULTANT and the COUNTY in this Agreement 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, 16 nor shall any contract entered into by the COUNTY be required to contain any provision for waiver. 9.23 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 Agreement 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. 9.24 LEGAL OBLIGATIONS AND RESPONSIBILITIES Non-Delegation of Constitutional or Statutory Duties. This Agreement 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 Agreement 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. 9.25 NON-RELIANCE BY NON-PARTIES No person or entity shall be entitled to rely upon the terms,or any of them,of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and the CONSULTANT and the COUNTY agree that neither the CONSULTANT 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 Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 9.26 ATTESTATIONS AND TRUTH IN NEGOTIATION CONSULTANT 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 Agreement by CONSULTANT 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 Agreement 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 Agreement. 9.27 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 Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. I7 9.28 EXECUTION iN COUNTERPARTS This Agreement 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 Agreement by signing any such counterpart. 9.29 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 Agreement. The DBE requirements of applicable federal and state laws and regulations apply to this Agreement. The COUNTY and its CONSULTANT agree to ensure that DBE's have the opportunity to participate in the performance of this Agreement. in this regard, all recipients and contractors shall take ail necessary and reasonable steps in accordance with 2 C.F.R. §200.321(as set forth in detail below),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 CONSULTANT and subconsultants shall not discriminate on the basis of race, color, national origin or sex in the award and performance of contracts, entered pursuant to this Agreement. 2 C.F.R. § 200.321 CONTRACTING WITH SMALL AND MINORITY BUSINESSES, WOMEN'S,BUSINESS ENTERPRISES, AND LABOR SURPLUS AREA FIRMS a. If the CONSULTANT with the funds authorized by this Agreement, seeks to subcontract goods or services, then, in accordance with 2 C.F.R. §200.321, the CONSULTANT shall take the following affirmative steps to assure that minority businesses, women's business enterprises,and labor surplus area firms are used whenever possible. b. Affirmative steps must include: 1. Placing qualified small and minority businesses and women's business enterprises on solicitation lists. 2. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources. 3. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses,and women's business enterprises. 4. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises. 5. Using the services and assistance,as appropriate,of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce. 6. Requiring the Prime consultant, if subconsultant's are to be let, to take the affirmative steps listed in paragraph(1)through(5)of this section. [Signature page on next page] 18 IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized representative. MONROE COUNTY By: grfr, 60.efr. Kevi + iIso P.E.,Assistant County Administrator Date: /049k Zca CONSULTANT Consultant's witness: Florida Transportation Engineering, inc. (d.b.a.) FTE sports i Signature: Signature ': Name: &2/.1i" l'/'1e&-f.le S Name:William J.McBride,Sr Title: I/ryn . J-7J ,Ues rrer Title: Vice President Date: Apr;1 10/ 20/9 Date: April 10,2019 MONROE COUNTY A ORNEY P OVED T ORM CHRIS AMBROSIO AS,I9Tr ATTORNEY Date: 19 ATTACHMENT A Consultant Scope of Services - FTE sports will provide professional forensic natural turf analysis services on the Project based on the builder's risk claim submitted by Burke Construction Group, Inc. ("Burke or Contractor") and in answer to the Ellis Turf Services, Inc. October 10, 2017, opinon letter/report concerning damages to athletic fields at Bernstein Park associated with hurricane Irma. The necessary phases and tasks described herein are based on similar professional forensic turf analysis services provided to other clients for similar purposes. All forensic services shall be under the direct supervision of a professional engineer licensed in the State of Florida. Listed below are the services that will be provided as part of this proposal. Project Meetings Phase 1.00 Task No. 1.01: Meeting with Monroe County Staff to obtain historical information about the design, contract agreement and construction schedule between the Monroe County and the Contractor. In addition,obtain all the necessary copies of all the related design documents, shop drawings, project progress reports, and other supporting documentation. This task is included within the current fee proposal, less and except direct reimbursable expenses per trip. Task No. 1.02: Meeting with Monroe County Staff to review FTE sports initial written review report based on the information provided by the Monroe County and the findings based on the two days(2) field observation conducted by FTE sports.This task is included within the current fee proposal, less and except direct reimbursable expenses per trip. Task No. 1.03: FTE sports will refine its initial written report and findings based on any additional clarifications as a result of the meetings with Monroe County Staff and to review the final written report. This task is included within the current fee proposal, less and except direct reimbursable expenses per trip. Task 1.04 Additional meetings with client FTE sports shall attend and participate in all additional meetings and/or telephone conference calls at the request of the authorized representative of Monroe County. These services shall be provided based on the attached hourly fee schedule and direct reimbursable expenses. No proposed legal mediation meetings are included within the above scope of services associated with this proposal. Any legal mediation or expert witness testimony shall be provided based on the attached hourly fee schedule and direct reimbursable expenses. Forensic Turf Technical Analysis Phase 2.00 Phase 2-Playing Field Observation Report: FTE sports shall prepare a written field observation report of its findings over a course of a two day period. The written report will contain all the necessary background information provided by the County, playing field peer review of the design document, comments related to the storm damage assessment. Task 2.01 Forensic Turf Technical Analysis 20 FTE sports shall prepare its initial written field observation report based on the information provided by Monroe County and its field observation findings and a prepare formal additional recommended list of items that should be provided by the Contractor to Monroe County. This service shall be provided based on the attached hourly fee schedule. The following written forensic turf technical analysis that shall contain the followings information: 1. Report Cover. 2. Index Summary. 3. Review of the original playing field design and written specifications summary analysis based on the athletic natural turf industry standard using the U.S.G.A. 2018 guidelines and the related ASTM standards for high-performance sand base athletic field construction. 4. Summary of findings and a detailed analysis of sequent of events. 5. Field observation narrative, playing field core samples and supporting photographic images. 6. Forensic Turf Technical Analysis Summary Narrative: Shall outline the corrective measures that were conducted by the Contractor on the Bernstein Park field, and professional opinion of the actual recommended measures that should have been considered prior to and before the Contractor commenced with any unnecessary construction corrective measures. In addition, we shall provide an opinion of estimated cost evaluation between both corrective measures. The basic professional services described herein shall be performed at an "HOURLY ESTIMATED FEE FOR MEETINGS, ON-SITE FIELD OBSERVATIONS AND FORENSIC TURF TECHNICAL ANALYSIS AS OUTLINED in Attachment "B" below, excluding out-of-pocket expenses, per the attached hourly fee schedule.Any additional professional services not specifically listed above shall be performed on an hourly basis, in accordance with the attached Hourly Fee Schedule, only per written authorization from Monroe County. A monthly invoice shall be submitted representing the actual applied hourly work completed. All invoices are considered due upon receipt. All direct reimbursable expenses shall be invoiced separately along with all copies of all project related expenses receipts and are considered due upon receipt. 21 ATTACHMENT B CONSULTANT'S FEES SCHEDULE Principal $200.00 Per Hour Project Manager $180.00 Per Hour Project Engineer $170.00 Per Hour Project Landscape Architect $165.00 Per Hour Project Designer $155.00 Per Hour Project Technician $95.00 Per Hour Administrative Assistant $75.00 Per Hour Expert Witness $400.00 Per Hour (Preparation, Mediation, and Testimony) 22 • COUNTY REQUIRED FORMS VENDOR CERTIFICATION REGARDING SCRUTINIZED COMPANIES LISTS Project Description(s): FORENSIC TURF TECHNICAL ANALYSIS ON BERNSTEIN PARK ATHLETIC FIELDS Respondent Vendor Name: Florida Transportation Engineering, Inc.(d.b.a.) FTE sports Vendor FEIN: 65-0183924 Vendor's Authorized Representative Name and Title: William J. McBride, Sr.,Vice President Address: 8250 Pascal Drive City: Punta Gorda State: Florida Zip: 33950 Phone Number 1+941-961-7560 Email Address: bmcbridpafteinc.net Section 287.135, Florida Statutes prohibits a company from bidding on, submitting a proposal for, or entering into or renewing a contract for goods or services of any amount if,at the time of contracting or renewal, the company is on the Scrutinized Companies that Boycott Israel List, created pursuant to Section 215.4725, Florida Statutes, or is engaged in a Boycott of Israel. As the person authorized to sign on behalf of Respondent, I hereby certify that the company identified above in the Section entitled "Respondent Vendor Name" is not listed on the Scrutinized Companies that Boycott Israel List. I understand that pursuant to Section 287.135, Florida Statutes, the submission of a false certification may subject company to civil penalties, attorney's fees, and/or costs. I further understand that any contract with the COUNTY may be terminated, at the option of the COUNTY, if the company is found to have submitted a false certification or has been placed on the Scrutinized Companies that Boycott Israel List or engaged in a boycott of Israel. Certified By: William J. McBride, Sr. ,who is authorized to sign on behalf of the above referenced comp Authorized Signature: —.- Print Name: William J. McBride,Sr. Title: Vice President Note:The List are available at the following Department of Management Services Site: http://www.dms.mvflorida.com/business operations/state purchasing/vendor information/convicte d suspended discriminatory complaints vendor lists 23 NON-COLLUSION AFFIDAVIT I, William J. McBride, Sr. of the city North Port, Florida according to law on my oath, and under penalty of perjury, depose and say that: 1. I am Vice President Of the firm of Florida Transportation Engineering, Inc. (d.b.a.)FTE sports the proposer making the Proposal for the project described in the notice for calling for proposals for: FORENSIC TURF TECHNICAL ANALYSIS ON BERNSTEIN PARK ATHLETIC FIELDS and that I executed the said proposal with full authority to do so; 2. The prices in this proposal have been arrived at independently without collusion, consultation, communication or agreement for the purpose of restricting competition, as to any matter relating to such prices with any other proposer or with any competitor; and 3. Unless otherwise required by law,the prices which have been quoted in this proposal have not been knowingly disclosed by the proposer and will not knowingly be disclosed by the proposer prior to proposal opening, directly or indirectly,to any other proposer or to any competitor; and 4. No attempt has been made or will be made by the proposer to induce any other person, partnership or corporation to submit, or not to submit, a proposal for the purpose of restricting competition; and 5. The statements contained in this affidavit are true and correct, and made with full knowled said pro", t. 7 // April 10, 2019 Signatur:Af •nsultant) (Date) ) STATE OF: F l c:sti; t COUNTY OF: CYIA 61 PERSONALLY APPEARED BEFORE ME, the undersigned authority,871410 M LbY1dt Sw . who, after first being sworn by me, (name of individual signing)affixed his/her signature in the spate provided abov . on this 1 O th day of 1 , 20 11 NOTARY PURL My commission expires: d 7 12 6'°Z! (SEAL) 11:40‘,,,." ter,SIVA KAMARAJUGADDA +: . MY COMMISSION 1 GO 128505 7.,':r Q" EXPIRES:Jury 28,2021 4(; 24 >t ' r;o. Bonded" uNottyPu6NcUndc, tors LOBBYING AND CONFLICT OF INTEREST CLAUSE SWORN STATEMENT UNDER ORDINANCE NO. 010-1990 MONROE COUNTY, FLORIDA ETHICS CLAUSE Florida Transportation Engineering, Inc. (d.b.a.) FTE sports (Company) • °... warrants that he/it has not employed, retained or otherwise had act on his/its behalf any former County officer or employee in violation of Section 2 of Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 010-1990. 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, commission, percentage, gift, or consideration paid to the former County officer or employe Signature) Date: April 10, 2019 STATE OF: at a COUNTY OF: Ck;el,Et ao Subscribed and sworn to (or affirmed) before me on 0411011 q (date) TM by L''"_�' (name of affiant). He/his personally known to me or has produced as identification. (Type of identification) NOTAR UBLIC My commission expires: (71 11a) (SEAL) a}?i ►f1'rs,'E •,. SIVAICAMARAdUGADDA y, p„1 MYCOMMISSION#GG 128505 luu ."481,,NLV Bonded Thru Notary Pub&Undetwaters 25 DRUG-FREE WORKPLACE FORM The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that: Florida Transportation Engineering, Inc. (d.b.a.) FTE sports (Name of Business) 1. Publishes a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. 2. Informs employees about the dangers of drug abuse in the workplace,the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3. Gives each employee engaged in providing the commodities or contractual services that are under proposal a copy of the statement specified in subsection (1). 4. In the statement specified in subsection (1), notifies the employees that, as a condition of working on the commodities or contractual services that are under proposal, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893(Florida Statutes)or of any controlled substance law of the United States or any state,for a violation occurring in the workplace no later than five(5)days after such conviction. 5. Imposes a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, or any employee who is so convicted. 6. Makes a good faith effort to continue to maintain a drug-free workplace through implementation of this section. As the person authorized to sign the statement, I certify that thi . m complies fully with the above requirements. ,:ZSP/ Consultan's Sig -ture April 10, 2019 Date 26 PUBLIC ENTITY CRIME STATEMENT "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 a contract 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 CONTRACTOR 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, Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list." i have read the above and state that neither Florida Transportation Engineering, Inc(d.b.a.)FTE sports (Consultant's name) nor any Affiliate has been placed on co vi vendor list within the last thirty-six(36) months. (Signs ) Date: April 10, 2019 STATE OF: Flog LA, COUNTY OF: C.k La L—f-e Subscribed and sworn to (or affirmed) before me on the 10 day of l'Tr I 20_ 19 , by Mt.6itak_ (name of affiant). He/She is personally known to me or has produced (type of identification)as identification. My Commission Expires: o 712br'Li NOTARY PUBLIC - (SEAL) 11&•-•'" SIVAKAMARAJUGADDA ' . •• MYOOMMISSION 5 GG 128505 EXPIRES:July 28,2021 ;,�. ...4 1`, •'Bonded ThNI Public Undervattes 27 Client#: 1048869 FLORITRA3 ACORD,. CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY)4/19/2019 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 any rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: USI Insurance Services, LLC PHONE 813 321-7500 Fax (NC,No,Ext): (NC,No): 2502 N Rocky Point Drive E-MAIL ADDRESS: Suite 400 INSURER(S)AFFORDING COVERAGE NAIC# Tampa,FL 33607 INSURER A:Phoenix Insurance Company 25623 INSURED INSURER B.Travelers Casualty and Surety Company 19038 Florida Transportation Engineering Inc INSURER C:Argonaut Insurance Company 19801 8250 Pascal Drive Punta Gorda, FL 33950 INSURER D:Travelers Indemnity Co of America 25666 INSURER E: INSURER F: 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. NOTVVITHSTANDING 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. LTRIN TYPE OF INSURANCE INSRL SUBR WVD POLICY NUMBER POLICY EFF POLICY EXP LIMITS {MM/DD/YYYY) (MMIDDIYYYY) A X COMMERCIAL GENERAL LIABILITY X X 6802J775227 07/06/2018 07/06/2019 EACH OCCURRENCE $1,000,000 CLAIMS-MADE X OCCUR PREMISESO(Ea occurrence) $1,000,000 MED EXP(Any one person) $10,000 PERSONAL&ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 POLICY X ECOT LOC PRODUCTS-COMP/OPAGG $2,000,000 OTHER: $ D AUTOMOBILE LIABILITY X X BA3D852116 07/06/2018 07/06/2019 Ea OMBIaccideNEDnt)SI $1rNGLE LIMIT 000r 000 ( X ANY AUTO BODILY INJURY(Per person) $ OWNED SCHEDULED BODILY INJURY(Per accident) $ _ AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE X AUTOS ONLY X AUTOS ONLY (Per accident) $ B )( UMBRELLA LIAB X OCCUR X X CUP9J402167 07/06/2018 07/06/2019 EACH OCCURRENCE $2,000,000 EXCESS LIAR CLAIMS-MADE AGGREGATE $2,000,000 DED X RETENTION$10000 $ _ - _ A WORKERS COMPENSATION X UB8K595812 08/17/2018 08/17/2019 X PER OTH- AND EMPLOYERS'LIABILITY STATUTE ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 C Professional 121AE000092500 06/08/2018 06/08/2019 $1,000,000 per Claim Liability $2,000,000 Annl Aggr. DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Professional Liability coverage is written on a claims-made basis. RE: Forensic Turf Technical Analysis, Bernstein Park Athletic Fields,Monroe County,FL, !oat at 67 5th St.,Stock Island, Monroe County,Florida. lP D B K MA IIMT BY ( WA(VR NMI Y�3 CERTIFICATE HOLDER CANCELLATION Monroe Count apolitical SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE y, THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN subdivision of the state of ACCORDANCE WITH THE POLICY PROVISIONS. Florida, 1100 Simonton St. AUTHORIZED REPRESENTATIVE Key West,FL 33040 • ©1988-2015 ACORD CORPORATION.All rights reserved. ACORD 25(2016/03) 1 of 1 The ACORD name and logo are registered marks of ACORD #525496994/M23593484 PZPZP