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Item J05 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 15 December 2004 Division: Growth Management Bulk Item: Yes -L No Department: Marine Resources AGENDA ITEM WORDING: Approval to waive Purchasing Policies and Procedures and also the approval of a Contract between Monroe County and Spirit Marine Towing & Assistance for the emergency removal (costing a total of $49,800) of the Kimilu, a 66' wooden shrimp boat. ITEM BACKGROUND: The owner of the vessel, "Kimilu," abandom~d it in the waters off of Stock Island. . The USCG requested assistance in having the vessel removed as soon as possible, due the pollutants aboard and the threat of sinking. The vessel was in a state of disrepair and with approaching storms and other related hazards it needed to be removed immediately. Two quotes were received, Blue Water Marine Services, Inc.-$69,492.78, and Spirit Marine Towing & Assistance-$49,800. PREVIOUS RELEVANT BOCC ACTION: NA CONTRACT/AGREEMENT CHANGES: New Contract STAFF RECOMMENDATIONS; Approval TOTAL COST: $49.800 BUDGETED: Yes No COST TO COUNTY: $49.800 REVENUE PRODUCING: Yes SOURCE OF FUNDS: BIF Funds No -L AMOUNT Per Month Year DIVISION DIRECTOR APPROVAL: Risk Management ~ APPROVED BY: County Atty --L DOCUMENTATION: Included --X- To Follow Not Required DISPOSITION: AGENDA ITEM NO.: (T5 BC041210 11117/20042:57 PM MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Spirit Marine Towing Contract #_ Effective Date: December 15, 2004 Expiration Date: Completion Contract Purpose/Description: Contract to provide removal and disposal of the Kimilu, a 66' shrimp boat off of Stock Island, Florida, Contract Manager: George Garrett 2507 Marine Resources / 11 (Name) (Ext.) (Department/Stop #) for BOCC meeting on 12/15/04 Agenda Deadline: 12/19/04 CONTRACT COSTS Total Dollar Value of Contract: $ 49,800 Budgeted? YesC8J No D Account Codes: Grant: $ 0 County Match: $ NA Current Year Portion: $ $49,800 157-62600-530340-_-_ - - - --- - - - - ----- - - --- Estimated Ongoing Costs: $~yr (Not included in dollar value above) ADDITIONAL COSTS For: NA (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW O.M.B./Purchasing ~ rt YesD No County Attorney ~1-z.,' J,Do1 YesD NoB" Date Out Changes Date In Needed Division Director ~t.A{ YesD No~ Risk Management Comments: OMB Form Revised 2/27/01 MCP #2 CONTRACT FOR SERVICES THIS CONTRACT is entered into by MONROE COUNTY, a political subdivision of the State of Florida, whose address is the Marathon Government Center, 2798 Overseas Highway, Marathon, Florida 33050, hereafter the County, and Spirit Marine Towing & Assistance, hereafter CONTRACTOR. Section 1. Scope. The CONTRACTOR and the County, for the consideration named agree as follows: CONTRACTOR agrees to remove and legally dispose of the "Kimilu," a shrimp boat located off of Stock Island, Monroe County. Photograph attached as Exhibit A. Section 2. Reporting. In consideration of the services described above, CONTRACTOR agrees to provide photographs of the removal process in all phases. Section 3. Payment. The County will provide payment in the amount of $49,800 to the CONTRACTOR within 30 days of receipt of ~n invoice The invoice must provide supporting documentation of the favorable removal and lawful disposal of the aforementioned vessel for payment to be finalized. Section 4. Contract Termination. Either party may terminate this Contract because of the failure of the other party to perform its obligations BC041221 Spirit Contract Kimilu 11/19/200411:41 AM under the Contract. If the County terminates this Contract because of the CONTRACTOR's failure to perform, then the County must pay the CONTRACTOR the amount due for all work satisfactorily completed as determined by the County up to the date of the CONTRACTOR's failure to perform but minus any damages the County suffered as a result of the CONTRACTOR's failure to perform. The damage amount must be reduced by the amount saved by the County as a result of the Contract termination. If the amount owed the CONTRACTOR by the County is not enough to compensate the County, then the CONTRACTOR is liable for any additional amount necessary to adequately compensate the County up to the amount of the Contract price. Section 5. Records. CONTRACTOR shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their 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 CONTRACTOR pursuant to this Agreement were spent for purposes not Contract 11/19/200411:41 AM 2 authorized by this Agreement, the CONTRACTOR shall repay the monies together with interest calculated pursuant to Sec. 55.03; FS, running from the date the monies were paid to CONTRACTOR. Section 6. Employees Subject to County Ordinance Nos. 010 and 020- 1990. The CONTRACTOR warrants that it has not employed, retained, or otherwise had act on its behalf any former County officer or employee subject to the prohibition of Section 2 of Ordinance No. 010-1990 or. any County officer or employee in violation of Section 3 of Ordinance No. 020-1990. For breach or violation of this provision, the County, in its discretion, may 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 employee. Section 7. Convicted Vendor. A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may ., not submit a bid on 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 perform work as a contractor, supplier, subcontractor, or CONTRACTOR under contract with any public entity, and may not transact business with any public Contract 11/19/200411:41 AM 3 entity in excess of the threshold amount provided in Section 287.017 of the Florida Statutes, for the Category two for a period of 36 months from the date of being placed on the convicted vendor list. Section 8. Insurance. Prior to execution of this agree, the CONTRACTOR shall furnish the County Certificates of insurance indicating the following coverage's or in excess thereof: . Workers - Compensation in the amount of statutory limits as specified in Florida Statutes 440. . Employers Liability with: $100,000 Bodily Injury by Accident; $500,000 Bodily Injury by Disease, policy limits; and $100,000 Bodily Injury by Disease, each employee. . General Liability (Premises operations, blanket contractual, expanded definition of property damage, products & completed operations, personal injury) with: $100,000 per Person; $300,000 per occurrence; and $50,000 property damage. . Vehicle Liability with: $50,000 per Person; Contract 11/19/200411:41 AM 4 $100,000 per occurrence; and $25,000 property damage or $100,000 combined single limit. . Watercraft Liability: $250,000 per Occurrence; and $500,000 Aggregate. . Pollution Liability: 500,000 per Occurrence; and 1,000,000 Aggregate. Section 9. Communication between Parties. All communication between the parties should be through the following individuals or their designees: Monroe County CONTRACTOR Kim McGee-Marine Projects Coordinator Department of Marine Resources Marine Projects Sections 5503 College Rd., Suite 201 Key West, Fl33040 John Coffin Spirit Marine Towing & Assistance PO Box 244 Big Pine Key, FI 33043 Section 10. 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 Contract 11/19/2004 11:41 AM 5 proceeding is instituted for the enforcement or interpretation of this Agreement, the County and CONTRACTOR agree that venue will li~ in the appropriate court or before the appropriate administrative body in Monroe County, Florida. Section 11. The County and CONTRACTOR agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. Section 12. 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 CONTRACTOR 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. Contract 11119/200411:41 AM 6 Section 13. Attorney's Fees and Costs. The County and CONTRACTOR agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. 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. Section 14. Binding Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and CONTRACTOR and their respective legal representatives, successors, and assIgns. Section 15. 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. Section 16. Claims for Federal or State Aid. The CONTRACTOR 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; Contract 11/19/200411:41 AM 7 provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. Section 17. Adjudication of Disputes or Disagreements. The County and CONTRACTOR agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. 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. Section 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 CONTRACTOR agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services unde~ this Agreement. County and CONTRACTOR specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. Section 19. Nondiscrimination. County and CONTRACTOR agree that there will be no discrimination against any person, and it is expressly Contract 11/19/200411:41 AM 8 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. County or CONTRACTOR 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 VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of Contract 11/19/200411:41 AM 9 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. Section 20. Covenant of No Interest. County and CONTRACTOR 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. Section 21. 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. Section 22. No Solicitation/Payment. The County and CONTRACTOR warrant that, in respect to itself, it has neither employed nor retained any Contract 11/19/200411:41 AM 10 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 CONTRACTOR 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. Section 23. Public Access. The County and CONTRACTOR 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 County and CONTRACTOR in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by CONTRACTOR. Section 24. Non-Waiver of Immunity. Notwithstanding he provisions of Sec. 286.28, Florida Statutes, the participation of the County and the CONTRACTOR in this Agreement and the acquisition of any commercial liability msurance coverage, self-insurance coverage, or local government Contract 11/191200411:41 AM 11 liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract .entered into by the County be required to contain any provision for waiver. Section 25. Privileges and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers; agents, or employees of any public agents or employees of the County, when performing their respective functions under this 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. Section 26. 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 Contract 11/19/200411:41 AM 12 County, except to the extent permitted by the Florida constitution, state statute, and case law. Section 27. 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 County and the CONTRACTOR-agree that neither the County nor the CONTRACTOR 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. Section 28. Attestations. CONTRACTOR agrees to execute such documents as the County may reasonably require, including a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free Workplace Statement. Section 29. 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 Contract 11/19/2004 11 :41 AM 13 personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. Section 30. 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 singing any such counterpart. Section 31. Section Headings. Section headings have been inserted in this Agreement as a matter of convenience of 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. Section 32. Indemnify/Hold Harmless. Contractor agrees to indemnify and save County harmless from and against all claims and actions and expenses incidental thereto, arising out of damages or claims for damages resulting from the negligence of Contractor, its agents, or employees while Contractor is cleaning the Airport facilities. However, Contractor shall not be liable for any claims, actions or expenses which arise from the negligent or intentional acts or omissions of the County, its agents or employees. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this agreement. Contract 11/19/200411:41 AM 14 Section 33. Standard of Care. All Services performed by the CONTRACTOR pursuant to this Agreement shall be subject to the standards, protocols and field procedures developed for each Order and will be performed using that degree of skill and care ordinarily exercised under similar conditions by reputable members of the CONTRACTOR'S profession practicing in the same or similar locality at the time the Services are performed. However, to the extent that project-specific written procedures or specifications-are incorporated into an Order, the Services shall be performed in accordance with such procedures or specifications. No other warranty, express or implied, is made or intended. Section 34. The effective date of this Contract is , 2004. THE REMAINDER OF THE PAGE LEFf INTENTIONALLY BLANK Contract 11/191200411:41 AM 15 Section 1. IN WITNESS WHEREOF each party hereto has caused this Agreement to be executed by its duly authorized representativ~. (SEAL) Attest: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FWRlDA By By Deputy Clerk Mayor/Chairman (SEAL) Department of Marine and Environmental Resources2798 Overseas Highway, Suite 420 Marathon, FL 33050 Spirit Marine Towing & Assistance PO Box 244 Big Pine Key, FI 33043 By Title By Title APPROM'~~tffiIAM~E>f LEGAL S ~{5YTO": ATT Contract 11/19/200411:41 AM 16 EXHIBIT A Appendix E 11/19/200411:41 AM EXHIBIT A .';;9-i:'~::~;:~ 'i~~t~ ':'-':_":::':~-_ :.""':-- '-'-'~'~'~t'trl;}i:::~_!"_;<"