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Item P10 BO.'\Rl) OF COli.\JT)' CO!\lM1SSIONERS .\G L' DA n E \1 St. \-1 :\1 ,\ R Y i\.1eetin~ f),lh;" Mardl i 5 2UU6 ... _..___. _. ...L .._ OJ .....~:-,: on. .t'.~~!tnl.Y...~'!.1.01"1}0~.._ Bulk ]leTl"l Yes ;\0 x. Depart IllCIlt: Sn.7.<i I~!~C .:~,_t!Jgt(ln SHlff Conr<1Ci Pers.Oll: ~?cilll[1.~:L.fi'!'!![.~)Jl .-\Gt:~ DA I"I'Ll1 WOROL'IG: Anpw\'al of an imt"! !Ot;a] flgn:>colcm (ll.,-\ I bet we-en the Board of C (1unty C omm [s:->inflcrs and the City or \-1aratlwn kn l rKorp-orat Ion uf il county iibr;lry in the nev." City \)Inces hLlilding HE\-l HA("KGROI~ ~ I): An aJvi:-.ory board ha, recDmill~ndeJ incorporation or a comIty library into the City huilding and [()]" COl,tl[V ~o pnl,' the: rdatcd cos~s rilth~l" Ihan to ~cno\'arc CH' cor;:;tnJcr anew ~ s.~'p<"irilrC i ilH ary to rcpJac<.'.' the eX1~I ~llg tatdity. PR[\,]Ol!S RELEVA~T BOCC ACTION: CO~TRAcr;',-\GkrE'EE,\;T CHA'CES: ST,,\FF l{FCO:\l,\lF:\I)ATlO:\S~ ..\pplO\"i"'l. T01.-\ L COST: \ ,\ H(: [)G t:TF[); '{~'" '\iJ COST TO C01.'YfY: )\':\ SOl'RCE OF l-T'DS: fH:V E<:.....l: t: I~H:O n I' IT\G: Y ("~ ~o !~,MOUl,iT PER ,\IO.'lTU \t'al' APPROVED BY: County AtlY 0\.' H;'I-'un.:h~<;tng _ ,__ I{ i 5k \ lanilgC'"Ill cut //.-.--- ~~ .......... /~/--. DIVISIO~ DtRECTon ..\PPROV,\L: _.__.__..~~ . . ..-;;< :&/ _,.' SU7,"\~"'tF.~t6.{ ,'IJ.::kL\l COljNTY .'\nOR>.JFY .~ - C"/' I nc:ludcd DOC l' :\'1l: i\ T.\ TIO:\": ~... I.L~CK,UP TO rOLI..O\'\", \or H.cqu trcd () I S ros l" r I 0': AGr:'d).\ TTE \1 iI ~{,\ I5-('U ~ '~J:' BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: March 15. 2006 Division: County Attorney Bulk Item: Yes No --X- Department: Suzanne A. Hutton Staff Contact Person: Suzanne A. Hutton AGENDA ITEM WORDING: Approval of an interlocal agreement (ll..A) between the Board of County Commissioners and the City of Marathon for incorporation of a county library in the new City offices building. ITEM BACKGROUND: An advisory board has recommended incorporation of a county library into the City building and for County to pay the related costs rather than to renovate or construct anew a separate library to replace the existing facility. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval. TOTAL COST: NA BUDGETED: Yes No COST TO COUNTY: NA SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONm_Year APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management _ DMSIONDIRECfORAPPROVAL: ~~ suz Jll.. , RIM COUNTY AITORNEY DOCUMENTATION: Included ~ NotRequired_ ** BACK-UP TO FOLLOW. DISPOSITION: AGENDA ITEM # P ..I 0 Revised 2/05 INTERLOCAL AGREEMENT THIS INTER LOCAL AGREEMENT is entered into as of this _ day of March, 2006 between Monroe County, a political subdivision of the State of Florida (hereinafter COUNTY) and the City of Marathon, a municipal corporation organized and existing under the laws of the State of Florida (hereinafter CITY). WITNESSETH: WHEREAS, CITY intends to construct a new city hall building of approximately 15,000 square feet to be located on USl in the City of Marathon (the "City Hall Building"); WHEREAS, COUNTY desires to construct a new library building of approximately 15,000 square feet within the boundaries of the City of Marathon (the "Library"), but currently has no site for such a building; WHEREAS, CITY has proposed, and COUNTY has agreed, to construct a City Hall Building that will be large enough to include the Library as proposed by the COUNTY; WHEREAS, COUNTY and CITY desire to enter into a joint agreement to provide for the construction of the City Hall Building. NOW THEREFORE, in consideration of the mutual promises and covenants herein contained, it is agreed between COUNTY and CITY as follows: Section 1. Construction. (a) The CITY agrees that it shall have primary responsibility for the construction of a City Hall Building that includes at least 15,000 square feet for the Library, as well as certain shared common space, mechanical systems and site facilities (the "Project"). The City's responsibilities shall include selection of the site, selection of the planning professionals, selection of all contractors and subcontractors for the actual design and construction of the Project, and general oversight and management of the Project. The COUNTY hereby agrees that, while the COUNTY may provide input on these decisions, the final decisions shall be made by the CITY. (b) Notwithstanding the foregoing, the COUNTY and the CITY agree that the actual build out of the Library space (including furniture, fixtures and equipment) shall be as determined by the COUNTY in its sole discretion and shall be at the COUNTY's sole expense. The actual build out of the City Hall space (including furniture, fixtures and equipment) shall be as determined by the City in its sole discretion and shall be at the CITY's sole expense. The costs of the build out of shared common space, mechanical systems and site facilities shall be shared equally by the CITY and the COUNTY. (c) The CITY and the COUNTY further agree to use their best efforts to negotiate and enter into, prior to the completion of the construction of the Project, an interlocal agreement regarding the operation of the building, the use and maintenance of shared common space, and such other topics regarding the City Hall Building and the Library as may be agreed to by the parties hereto. P: \ Contracts \ Interlocal Agreements \Interlocal - Library Marathon City Hall sh3 -0 I .doc 3/1/20061:52:00 PM Section 2. Payment. The COUNTY agrees, subject to Section 1 (b) above, to reimburse the CITY for fifty percent (50%) ofthe design and construction costs ofthe Project as follows: 2.1 Reimbursement on a monthly basis. 2.2 To receive payment, the CITY on a monthly basis shall submit an invoice to the Director of the COUNTY's Library Department (the "Director"). The invoice must describe the planning, design and construction services performed, together with proof that payment has been made to the CITY'S contractor(s). 2.3 If the invoice is satisfactory to the Director, he/she shall forward the invoice to the County Clerk for payment. If the Director or County Clerk determines that an invoice contains an error or omission, then within ten (10) days of receipt of the invoice, the Director or County Clerk (as appropriate) shall return the invoice to the CITY with a written explanation of the error or omission. If the invoice contains no error or omission, then the COUNTY shall pay the CITY within ten (10) work days of the Director's receipt of the invoice. If the invoice is returned for correction, then the payment must be made within ten (10) days of the date the County official who requested the correction receives the corrected invoice. 2.4 The parties recognize that the CITY will enter into contractual operations with third parties in order to perform the services required by this Agreement and that the COUNTY shall be the funding source for fifty percent (50%) of the CITY's cost of the Project. Accordingly, the County Clerk shall timely process all invoices received from the CITY as provided hereinabove, 2.5 The COUNTY acknowledges that the CITY has already contracted the services of Keith and Schnars, P.A. to prepare the design/build criteria package for purposes of bidding out the Project, and the COUNTY agrees to reimburse the CITY for fifty percent (50%) of the fees and costs associated with such contract. If additional contracts are awarded, the CITY and the COUNTY will share equally in the fees and costs of such contracts subject to annual appropriations by each party. Section 3. Term. 3.1 This Agreement shall become effective upon execution by both parties and shall remain in effect through the final completion of the Project, unless earlier terminated in accordance with Section 5 herein (the "Term"). 3.2 If such Notice of Termination as specified in Section 5 is given, this Agreement shall terminate within five (5) days thereof, and following such five day period, the parties shall be relieved of all rights and obligations hereunder, except for any rights and obligations that expressly survive termination. lnterlocal - Library Marathon City Hall sh3-0I.doc 3/1/20061:52:00 PM 2 Section 4. Subcontracts, 4.1 In performing the construction of the Project as contemplated by this Agreement, the parties recognize that the CITY may subcontract with a third party(ies) to provide the actual design and construction services. 4.2 Any third party contracts entered into between the CITY and any third party vendor shall not create any privity between the COUNTY and the third party, nor shall any third party vendor be considered a third party beneficiary of the rights of the CITY under this Agreement. 4,3 The CITY shall be responsible for any violations of applicable state, federal, County or City laws, rules or regulations made by the CITY's vendor(s) in performing any services contemplated in this Agreement. 4.4 Any contracts with any subcontractors entered into by the CITY shall include provisions for indemnification, insurance and customer service standards matching those provisions in this Agreement. Section 5. Termination and Default. 5.1 In the event of any failure of compliance by either party hereto with any of its material obligations to the other party as provided for herein such action shall constitute a default under this Agreement. 5.2 Upon any such default, the non-defaulting party shall provide to the defaulting party a written Notice of such default, which Notice (a "Default Notice") shall state in reasonable detail the actions the defaulting party must take to cure the same. 5.3 The defaulting party shall cure any such default, within 30 days following the date of the Default Notice. 5.4 Notwithstanding the provisions of this Section, if any such default by the defaulting party remains uncured at the conclusion of any specified 30 day cure period, and if the nature of the defaulting party's obligations are such that more than 30 days is required to effect cure, then the defaulting party shall not be in default hereunder and the non-defaulting party shall not have the right to exercise its termination rights granted herein as a result of any such default, if the defaulting party commences cure within the applicable cure period and thereafter diligently pursues cure to completion of performance. 5.5 In the event the defaulting party fails to effect any required cure as provided for herein, the defaulting party shall be deemed to be in uncured default hereunder, and the non-defaulting party shall have the right, but shall not be obligated, upon written Notice to the defaulting party, to terminate this Agreement. Interlocal - Library Marathon City Hall sh3-01.doc 3/1/20061:52:00 PM 3 5.6 If such Notice is given, this Agreement shall terminate on the date set forth in the Notice and the parties shall be relieved of all rights and obligations hereunder, except for any rights and obligations that expressly survive termination. Section 6. Indemnification. 6.1 To the extent permitted by law and subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, the COUNTY does hereby agree to defend, indemnify and hold the CITY harmless from and against any and all liability, damages, costs or expenses (including reasonable attorneys' fees, costs, and expenses at both the trial and appellate levels) arising from the acts or omissions of the COUNTY, its officials, agents or employees, in connection with this Agreement. 6.2 To the extent permitted by law and subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, the CITY does hereby agree to defend, indemnify and hold the COUNTY, its officers, agents, or employees, harmless from and against any and all liability, damages, costs or expenses (including reasonable attorneys' fees, costs, and expenses at both the trial and appellate levels) arising from the acts or omissions of the CITY or any third party vendor contracted by the CITY in connection with this Agreement. Section 7. Notices. 7.1 All notices, requests, demands, elections, consents, approvals and other communications hereunder must be in writing (each such, a "Notice") and addressed as follows (or to any other address which either party may designate by Notice): If to County: Mr. Thomas J. Willi County Administrator Monroe County Gato Building 1100 Simonton Street, Suite 2-205 Key West, Florida 33040 With a copy to: County Attorney PO Box 1026 Key West, Florida 33041 If to City: Mike Puto City Manager City of Marathon 11045-55 Overseas Highway Marathon, Florida 33050 lnterlocal - Library Marathon City Hall sh3-01.doc 3/1/20061:52:00 PM 4 With a COpy to: John Herin, Esq, City Attorney Steams Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 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; facsimile; confirmed electronic delivery; or sent by overnight delivery service. Section 8. Insurance. 8.1 The CITY and COUNTY agree to insure or self-insure their respective interests in connection with personal injury, death and personal property damage to the extent each deems necessary or appropriate, 8.2 The CITY shall require any subcontractor performing work during the construction of the City Hall Building to maintain throughout the duration of such construction the following insurance: 8.2.1 Commercial general liability in the amount of $1 ,000,000 per occurrence for bodily injury and property damage. This policy must include coverage for contractual liability and specifically cover the indemnity set forth in this Agreement. The CITY must be named as an additional insured on this policy. 8.2.2 Automobile and marine liability in the amount of $1,000,000 per occurrence for bodily injury and property damage, covering all vehicles owned, leased or used by the subcontractor as part of the construction, The CITY must be named as an additional insured on this policy. 8.2.3 Workers compensation and employer's liability, as required by Florida Statutes. 8.2.4 All companies providing insurance shall be authorized to do business in the State of Florida and rated B+:VI or better by Best's Key Rating Guild, latest edition. 8.2.5 No change or cancellation of this insurance shall be made without 30 days prior written notice to the City, 8.3 The CITY shall require any subcontractor to name the COUNTY as an additional insured on any policies. Interlocal - Library Marathon City Hall sh3-0 I.doc 3/1/20061:52:00 PM 5 Section 9. Regulatory Powers. 9.1 Nothing contained herein shall be construed as waiving either party's regulatory approval or enforcement rights or obligations as it may relate to regulations of general applicability, which may govern the Agreement. 9.2 Nothing herein shall be deemed to create an affirmative duty of either party to abrogate its sovereign right to exercise its police powers and governmental powers by approving or disapproving or taking any other action in accordance with ordinances, rules and regulations, federal laws and regulations and state laws and regulations. Section 10. Attorneys Fees and Waiver of Jury Trial. 10.1 In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to recover its attorneys' fees and costs, including the fees and expenses of any paralegals, law clerks and legal assistants, and including fees and expenses charged for representation at both the trial and appellate levels. 10.2 In the event of any litigation arising out of this Agreement, each party hereby knowingly, irrevocably, voluntarily and intentionally waives its right to trial by Jury. Section 11. Governing Law. 11.1 This Agreement shall be construed in accordance with and governed by the laws of the State of Florida. Exclusive venue for any litigation arising out of this Agreement shall be in Monroe County, Florida, Middle Keys Division of the Circuit Court or the Southern District of Florida, Section 12. Entire AgreementlModificationl Amendment. 12.1 This writing contains the entire Agreement of the parties and supercedes any prior oral or written representations. No representations were made or relied upon by either party, other than those that are expressly set forth herein. 12.2 No agent, employee, or other representative of either party is empowered to modify or amend the terms of this Agreement, unless executed with the same formality as this document. Section 13. Access to Records and Audits. 13,1 The County Clerk or his designee shall, during the term of this Agreement and for a period of three (3) years from the date of termination of this Agreement, have access to and the right to examine and audit any Records of the CITY or its subcontractors involving transactions related to this Agreement. Interlocal - Library Marathon City Hall sh3-0I.doc 3/1/20061:52:00 PM 6 13.2 The COUNTY may cancel this Agreement for refusal by the CITY, or the CITY's subcontractor, to abide by the provisions of Chapter 119, Florida Statutes, or for refusal by City to allow access by the County Clerk or his designee for audit purposes. 13.3 The term Records shall refer to any documents, books, data (electronic or hard copy), papers and financial records that result from the CITY or its subcontractors performance of the Services provided in this Agreement. 13.4 If the inspection or audit discloses that County funds paid to the City under this Agreement were used for a purpose not authorized by this Agreement, then the CITY must refund the funds improperly spent with interest calculated pursuant to Section 55.03, Florida Statutes, with interest running from the date the COUNTY paid the improperly spent funds to the CITY. This paragraph will survive the termination of this Agreement. Section 14. Nonassignability. 14.1 This Agreement shall not be assignable by either party unless such assignment is first approved by both parties. 14.2 The provisions of this Section shall not prohibit the CITY from utilizing the services of subcontractors to perform the Services contemplated in this Agreement. Section 15. Severability. 15.1 If any term or provision of this Agreement shall to any extent be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law. Section 16. Independent Contractor. 16.1 The CITY and its employees, volunteers, agents, vendors and subcontractors shall be and remain independent contractor and not agents or employees of the COUNTY with respect to all of the acts and services performed by and under the terms of this Agreement. This Agreement shall not in any way be construed to create a partnership, association or any other kind of joint undertaking, enterprise or venture between the parties. Section 17. Waiver. 17.1 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 shall not be construed as a waiver of the violation or breach, or of any future violation, breach or wrongful conduct. Interlocal - Library Marathon City Hall sh3-01.doc 3/1/20061:52:00 PM 7 Section 18. Funding. 18.1 The parties agree that the COUNTY's responsibility under this Agreement is to provide funding only. Accordingly, all subcontractors are in privity with the CITY only and may not seek direct payment from the COUNTY, and that the COUNTY has no duty, liability or other obligation to such persons. The CITY agrees to include a sentence similar to the foregoing in all contracts entered into by the CITY for the Project. Section 19. Applicable Laws, 19.1 In awarding contracts for the design and construction of the Project, the CITY agrees to abide by all applicable CITY ordinances and state and federal laws. Section 20. Survival of Provision!. 20,1 Any terms or conditions of either 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 and effect unless and until the terms or conditions are completed and shall be fully enforceable by either party. Section 21. Counterparts. 21.1 This Agreement may be executed in several counterparts, each of which shall be deemed an original and such counterparts shall constitute one and the same instrument. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.] Interlocal - Library Marathon City Hall sh3-0i.doc 3/1120061:52:00 PM 8 9 lnterlocal - Library Marathon City Hall sh3-01.doc 3/1/2006 1:52:00 PM City Attorney BY: APPROVED AS TO FORM AND LEGALALITY FOR THE USE AND RELIANCE OF THE CITY OF MARATHON, FLORIDA ONLY: (City Seal) Cindy L. Ecklund City Clerk ATTEST: John Bartus, Mayor THE CITY OF MARATHON, FLORIDA .~~}~ Deputy Clerk APPROVED AS TO FORM BY: DANNY L. KOLHAGE, CLERK ATTEST: (SEAL) Mayor/Chairperson BY: BOARD OF COUNTY COMMISSIONERS MONROE COUNTY, FLORIDA IN WITNESS WHEREOF, the parties hereto have set their hands and seal the day and year first written above.