Item F24 F.24
BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Sylvia Murphy,District 5
The Florida.Keys l'U � � Mayor Pro Tern Danny Kolhage,District 1
�pw° Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
County Commission Meeting
November 20, 2019
Agenda Item Number: F24
Agenda Item Summary #6259
BULK ITEM: Yes DEPARTMENT: Engineering/Roads
TIME APPROXIMATE: STAFF CONTACT: Judith Clarke (305) 295-4329
N/A
AGENDA ITEM WORDING: Approval to Rescind Landscape Maintenance and Installation
Agreement with the City of Key West for the installation and maintenance of five (5) Royal
Poinciana trees in various locations on the Flagler Ave median as the trees were not installed. The
agreement was approved at the August 21, 2019 meeting under agenda item C37.
ITEM BACKGROUND: The City of Key West requested approval to install five (5) Poinciana
trees in the median of Flagler Ave in July 2019 and a landscape maintenance and installation
agreement for the trees was approved by BOCC at the August 2019 Meeting. Subsequent to that the
City decided not to plant the trees on Flagler Ave therefore the maintenance agreement is being
rescinded.
PREVIOUS RELEVANT BOCC ACTION: At the August 2019 Meeting BOCC approved a
Landscape Maintenance and Installation Agreement with the City of Key West for the installation
and maintenance of five (5) Royal Poinciana trees in various locations on the Flagler Ave median.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Rescind agreement with the City of Key West.
DOCUMENTATION:
Landscaping Agreement with KW 8_6_2019
FINANCIAL IMPACT:
Effective Date: 11/20/19
Expiration Date: N/A
Total Dollar Value of Contract:
Total Cost to County: None
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Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant:
County Match:
Insurance Required: N/A
Additional Details:
REVIEWED BY:
Judith Clarke Completed 11/04/2019 9:56 AM
Christine Limbert Completed 11/04/2019 11:10 AM
Budget and Finance Completed 11/04/2019 11:32 AM
Maria Slavik Completed 11/04/2019 2:05 PM
Kathy Peters Completed 11/04/2019 2:48 PM
Board of County Commissioners Pending 11/20/2019 9:00 AM
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LANDSCAPE MAINTENANCE AND INSTALLATION AGREEMENT
BETWEEN 7
MONROE COUNTY AND
THE CITY OF KEY WEST
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THIS Agreement is made and entered into this day of 2019, by and U'
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between MONROE COUNTY, (hereinafter, "COUNTY") and, THE CITY OF KEY WEST
(hereinafter, "CITY")for the CITY to maintain, at the CITY'S expense, landscaping within the >
area specified below.
WHEREAS, the COUNTY has jurisdiction over and maintains Flagler Avenue as part of
the County Secondary Road System; and U-
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WHEREAS, the CITY seeks to install landscape improvements consisting of five
poinciana trees within the median of the right-of-way of Flagler Avenue from Kennedy Drive to 2
South Roosevelt Boulevard, (hereinafter, "PROJECT") and the CITY has agreed to maintain the
landscape after completion of the PROJECT at its expense; and
NOW THEREFORE, for and in consideration of the mutual benefits to the COUNTY
and CITY, the parties covenant and agree as follows:
1. PROJECT SCOPE OF WORK AND REQUIREMENTS
1.1 The CITY hereby assures the COUNTY, that prior to submitting this Agreement, it has:
a) Ascertained the location of all existing utilities, both aerial and underground and
confirmed that plantings will not impact existing utilities; and U)
b) Complied with all permit requirements from the appropriate agencies (county,
municipality, etc.)in connection with the activities described herein.
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1.2 The CITY will maintain all landscaping so that it does not impact or restrict the public's toi
use of the travel lanes, including the bicycle lanes or any drainage structures that are maintained 00
by the COUNTY. Maintenance will include but not necessarily be limited to the following:
a) maintain landscaping so that sight triangles at driveways and roadway intersections are not
obstructed and roadway signage is not obstructed;
b) maintain trees and vegetation at a height that is acceptable to overhead utility owners; E
c) as needed, sweep up leaves or buds that drop from trees so that plant material does not clog 2
drainage structures;
d) ensure that landscaping will not obstruct utility owners' access to existing utilities for
maintenance purposes
e) The CITY and/or its contractors will coordinate and cooperate with utilities or contractors
who obtain approval from Monroe County to perform work on the County right-of-way.
1.3 The CITY will be solely responsible for any and all parties who perform landscaping
installation and/or maintenance of improvements within the County right-of-way and the
County will in no way be responsible or liable for any injury caused by the tools, materials,
or equipment used by the CITY and its Contractors.
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1.4 If installation has been properly completed, and maintenance by the CITY is not in
compliance with section 1.2, the COUNTY may take action to maintain the landscaping
or a part thereof, with COUNTY staff or Contractor's personnel and invoice the CITY for
expenses incurred, or
The COUNTY may terminate the Agreement, in which case the CITY shall at its own U)
expense and within thirty (30) days after written notice by the COUNTY, remove all off
the landscaping that the COUNTY directs be removed and return the right-of-way to its >
original condition. >
1.5 The above-named functions to be performed by the CITY, shall be subject to periodic
inspections by the COUNTY. The CITY shall not change or deviate from the proposed
planting scope without written approval of the COUNTY. U_
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1.6 The CITY may utilize its employees or third parties to accomplish its obligations under
this Agreement. However, the CITY remains responsible for proper performance under
this Agreement and shall take all steps necessary to ensure that its employees or third
parties perform as required under this Agreement.
1.7 It is understood between the parties hereto that the landscaping covered by this
Agreement may be removed, relocated or adjusted by the COUNTY at any time in the
future as determined to be necessary by the COUNTY in order to widen, alter or
otherwise change the county road to meet with future criteria or planning of the E
COUNTY. The CITY shall be given thirty (30) calendar days' notice to remove said
landscaping after which time the COUNTY may remove the same at the CITY's expense.
1.8 Designated personnel as directed by the COUNTY'S engineer or his/her designee may U)
inspect and evaluate this PROJECT.
1.9 If at any time after the CITY has assumed landscaping maintenance responsibility it shall N
come to the attention of the COUNTY that the landscaped area or a part thereof is not to
properly maintained pursuant to the terms of this Agreement, the COUNTY'S Engineer 00
or his/her designee may issue a written notice to the CITY that a deficiency or
deficiencies exist(s). Upon receipt of the notice, the CITY shall have a period of thirty
(30) calendar days within which to correct the cited deficiencies. If said deficiencies are
not corrected within this time period, the COUNTY may at its option either take action to
maintain the landscaping or part thereof with COUNTY staff or its Contractor's
personnel and invoice the CITY for expenses incurred, which the CITY shall promptly
reimburse the county for the costs, or the COUNTY may terminate the Agreement, in
which case the CITY shall at its own expense and within thirty (30) days after written
notice by the COUNTY, remove all of the landscaping that the COUNTY directs be
removed and return the right-of-way to its original condition.
1.10 The failure of either party to this Agreement to object to or to take affirmative action with
respect to any conduct of the other which is in violation of the terms of this Agreement
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shall not be construed as a waiver of the violation or breach, or of any future violation,
breach or wrongful conduct.
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2. PROJECT COST
2.1 The CITY agrees, at the CITY'S expense, to maintain the landscaping within the median 0
and within the right of way; The CITY is solely responsible for all costs incurred in U)
carrying out the Project as described herein. It is understood by the parties that the c
COUNTY is to incur no cost for the project or maintenance thereof.
2.2 There are no third-party beneficiaries to this Agreement, and no contractor or sub-
contractor or any other person or entity that shall look to COUNTY for payment.
2.3 The CITY shall not cause any liens or encumbrances to attach to any portion of the
COUNTY right-of-way.
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3. EFFECTIVE DATE AND TERM; TERMINIATION r_
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3.1 The term of this AGREEMENT commences upon execution. The CITY shall notify or cause
the COUNTY's Engineer or his/her designee to be notified a minimum of 48 hours, U)
excluding Saturday, Sunday, and legal holidays,prior to starting installation of the landscape 0
work in the right-of-way, unless said Engineer or his/her designee waives this period in 2
writing. When the COUNTY through said Engineer or his designee issues a Notice to I-
Proceed, the CITY may proceed with the project.
3.2 This Agreement shall continue in perpetuity unless terminated by the CITY or COUNTY as
set forth below.
3.3 Termination shall be done in writing giving the other party thirty (30) days' notice.
3.4 Upon notice of termination by either party, all landscape improvements shall be removed by
the CITY and the COUNTY'S right-of-way returned to its original condition. If, after thirty
(30) days, the landscape improvements have not been removed, the COUNTY may, at its
option remove all landscape improvements; return the right-of-way to its original condition
with the COUNTY staff or Contractor's personnel and the CITY shall promptly reimburse
the COUNTY upon receipt of an invoice for the reasonable values of such work. 00
3.5 The COUNTY may terminate the AGREEMENT, in which case the CITY shall at its own
expense and within thirty (30) days after written notice by the COUNTY, remove all of the
landscaping that the COUNTY directs be removed and return the right-of-way to its original
condition. The CITY will own such materials as it removes, and the COUNTY shall own any E
materials remaining. The COUNTY may, in its discretion, remove, relocate or adjust the
landscaping materials, with the CITY being responsible for the cost of any removal. Upon
COUNTY action under one of the above options and upon direction of the COUNTY, the
CITY shall cease installation and maintenance activities under this AGREEMENT.
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4. INSURANCE AND INDEMNIFICATION
4.1 The CITY shall keep in force during the period of this Agreement public liability insurance,
property damage insurance and worker's compensation insurance through an insurance
policy(ies) or the CITY'S self-insurance program.
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4.2 Subject to F.S. 768.28, Florida Statutes, The CITY covenants and agrees to indemnify, hold
harmless and defend COUNTY its commissioners officers employees agents and servants
from any and all claims for bodily injury, including death, personal injury, and property .2
damage, including damage to property owned by Monroe County, and any other losses 0
damages, and expenses of any kind, including attorney's fees, court costs and expenses, U)
which arise out of, in connection with, or by reason of maintenance or installation of the
Project provided by under this Agreement. >
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This indemnification shall survive the expiration or earlier termination of the Agreement.
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4.3 The CITY agrees to include the following indemnification in all contracts with contractors, 0
subcontractors, consultants, and subconsultants, who perform work in connection with this r-
Agreement:
"The contractor/subcontractor/consultant/sub consultant shall indemnify, defend, save and U)
hold harmless Monroe County Board of County Commissioners and all of its officers, agents 0
or employees from all suits, actions, claims, demands, liability of any nature whatsoever 2
arising out of, because of, or due to any negligent act or occurrence of omission or I-
commission of the contractor/subcontractor/consultant/sub consultant, its officers, agents or
employees."
4.4 When the COUNTY receives a notice of claim for damages that may have been caused by 2
the CITY in the performance of services pursuant to this Agreement, the COUNTY will
immediately forward the claim to CITY, and the COUNTY will evaluate the claim and report
their findings to each other within seven working days and will jointly discuss options in U)
defending the claim. After reviewing the claim, the COUNTY will determine whether to
require the participation of the CITY in the defense of the claim or to require that the CITY
defend the COUNTY in such claim pursuant to this section. The COUNTY'S failure to notify
the CITY of a claim shall not release the CITY from any of the requirements of this section. (01
The COUNTY and the CITY will pay their own costs for the evaluation, settlement 00
negotiations, and trial, if any. However, if only one party participates in the defense of the
claim at trial, that party is responsible for all costs, but if the verdict determines that there is
joint responsibility, the costs and liability for damages will be shared in the same percentage3
as that judicially established.
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5. NOTICES
5.1 All notices, requests, demands, elections, consents, approvals and other communications
hereunder must be in writing and addressed as follows, or to any other address which
either party may designate to the other party by mail:
If to COUNTY: Roman Gastesi, Jr.
County Administrator
Monroe County Historic Gato Bldg.
1100 Simonton Street
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Key West, Florida 33040
With a copy to: Christine Limbert-Barrows c
Assistant County Attorney
P.O. Box 1026
Key West, Florida 33041-1026 U'
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If to CITY: James Scholl >
as
City Manager
City of Key West
P.O. Box 1409
Key West, Florida 33041
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With a copy to: Shawn Smith, Esq.
City Attorney 2
City of Key West
P.O. Box 1409
Key West, Florida 2
5.2 Any Notice required by this Agreement to be given or made within a specified period of
time, or on or before a date certain, shall be deemed to have been duly given if sent by
certified mail, return receipt requested, postage and fees prepaid; hand delivered; or sent by E
overnight delivery service. 2
6. GOVERNING LAW AND VENUE.
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This Agreement shall be governed by and construed in accordance with the Laws of the State
of Florida applicable to contract made and to be performed entirely in the State. In the event
that any cause of action or administration proceeding is instituted for the enforcement or c,,
interpretation of this Agreement, the Parties agree that venue will lie in the appropriate court to
or before the appropriate administrative body in Monroe County, Florida, lower Keys 00
Division of the Circuit Court or the Southern District of Florida. Venue for any suits or
actions of any kind and any mediation shall be in and governed by the rules of the 161h
Judicial Circuit Court in Monroe County, Florida. This Agreement shall not be subject to
arbitration.
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7. SEVERABILITY.
If any term or provision of the Agreement is found to be illegal or unenforceable, the
remainder of the Agreement will remain in full force and effect and such term or provision
will be deemed stricken.
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8. PUBLIC RECORDS.
The CITY shall allow public access to all documents,papers, letters, or other material subject
to the provisions of Chapter 119, Florida Statutes, and made or received by the CITY in
conjunction with this Agreement. Failure by the CITY to grant such public access shall be
grounds for immediate unilateral cancellation of this Agreement by the COUNTY.
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9. INDEPENDENT CONTRACTOR.
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The CITY and the COUNTY agree that the CITY, its employees, contractors, subcontractors,
consultants, and sub consultants are not agents of the COUNTY as a result of this 0
Agreement. This Agreement shall not in any way be construed to create a partnership, U)
association or any other kind of joint undertaking, enterprise or venture between the parties. c
10. NON-WAIVER OF SOVEREIGN IMMUNITY.
Nothing herein shall be construed as a waiver of either party's sovereign immunity. a�
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11. ENTIRE AGREEMENT. c
This writing embodies the entire AGREEMENT and understanding between the parties g
hereto and there are no other AGREEMENTS and understanding, oral or written, with
reference to the subject matter hereof that are not merged herein and superseded hereby.
12. ASSIGNMENT.
This AGREEMENT may not be assigned or transferred by the CITY in whole or part
without the consent of the COUNTY.
13. PUBLIC ENTITY CRIME.
A person or affiliate who has been placed on the convicted vendor list following a
conviction for a 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 a 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 Ni
threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO (01
for a period of 36 months from the date of being placed on the convicted vendor list. 00
14. NON-DISCRIMINATION.
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, as
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
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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 2
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 patient records; 8) Title VIII of the
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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, LL
familial status or age; and 11) any other nondiscrimination provisions in any federal or 0
state statutes which may apply to the parties to, or the subject matter of, this Agreement.
15. COMPLIANCE WITH LAWS.
The CITY will comply with all laws, ordinances, and governmental rules and regulations 0
which apply to its activities on the property. The CITY will obtain all necessary permits 2
and or authorization as may be required by the regulatory agencies.
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16. BINDING EFFECT. n
The terms, covenants, conditions, and provisions of this Agreement shall bind and inure 0
to the benefit of the County and the CITY and their respective legal representatives, 2,
successors, and assigns.
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17. ADJUDICATION OF DISPUTES OR DISAGREEMENTS.
COUNTY and CITY 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 Ni
have the right to seek such relief or remedy as may be provided by this Agreement or by to
Florida law. 00
18. 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 CITY 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 CITY
specifically agree that no party to this Agreement shall be required to enter into any
arbitration proceedings related to this Agreement.
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19. SURVIVAL OF PROVISIONS.
Any terms or conditions of this Agreement that require acts beyond the date of the term
of the Agreement, shall survive termination of the Agreement, shall remain in full force
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and effect unless and until the terms or conditions are completed and shall be fully
enforceable by either party.
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20. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which shall be deemed
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an original and such counterparts shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year >
first above written.
(SEAL) BOARD OF COUNTY COMMISSIONERS -
KEVIN MADOK, Clerk OF MONROE COUNTY, FLORIDA r-
By: By:
Deputy Clerk Mayor/Chairperson
ATTEST: CITY OF KEY WEST, FLORIDA 2
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By: By:
City Clerk Mayor 2
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