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03/19/2003 Agreement Clerk of 1IIe Circul coun Danny L. Kolhage Office (305) 292-3550 Fax (305) 295.3663 Memnrandum To: Dent Pierce, Director Public Works Department Attn: Jo Walters, Administrative Asst. Isabel C. DeSantis, Deputy Cler~ Monday, March 24, 2003 From: Date: At the meeting of March 19, 2003, the Board approved the following: Joint Participation Agreement (with Memorandum of Agreement) between Monroe County and the Florida Department of Transportation to construct a project described as CR5-AIFlagler Avenue in Key West as scheduled in the FDOT's Five-Year Work Plan for fiscal year 2002/2003. Enclosed are four duplicate originals of the above document executed by Monroe County for your handling. Please be sure that sets marked Monroe County Clerk's Office Original and Monroe County Finance Department's Original are returned to my attention as quickly as possible. Should you have any questions, please do not hesitate to contact this office. Copies: Finance, memo only County Attorney File ~ (r) ~o \'> '-' LaserfiKhed on _ date by ~. .iDitiaIS FLORIDA DEPARTMENT OF TRANSPORTATION LOCALLY FUNDED JOINT PARTICIPATION AGREEMENT TillS AGREEMENT, made and entered into this ~ day of March, 2003, by and between the STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, hereinafterreferred to as the "DEPARTMENT", and MONROE COUNTY, hereinafter referred to as the "COUNTY" WITNESSETH: WHEREAS, the Parties have been granted specific legislative authority to enter into this AGREEMENT pursuant to Section 339.12, Florida Statutes; and WHEREAS, the Department is prepared, in accordance with its Five Year Work Program, to construct the project described as CR5-A / Flagler Avenue in Key West, FL, in Fiscal Year 2002/2003, said project designated by the DEPARTMENT as Item No. 251457-2-52- 01, hereinafter referred to as the "PROJECT"; and WHEREAS, the implementation of the PROJECT is in the interests of both the DEPARTMENT and the COUNTY and it would be most practical, expeditious, and economically advantageous for the COUNTY to advance the funds for the Construction Phase of the PROJECT; and WHEREAS, the COUNTY by Action dated March /.!'!L, 2003, a copy of which is attached hereto and made a part hereof, has agreed to advance to the DEPARTMENT an amount of $1,220,000.00 for the Construction of the PROJECT. NOW, THEREFORE, in further consideration of the mutual covenants hereinafter contained, the parties agree as follows: 1. (A) The COUNTYagrees that it will, at least fourteen (14) calendar days prior to the Department's advertising the project for bid, furnish the Department an advance deposit in the amount of $ 1,220,000 (One Million Two-hundred twenty Thousand dollars) for full payment of the estimated project cost for Locally Funded project number 251457-2. The advance deposit shall be the tot~l estimated project cost plus allowances (Allowances: Contingency $75,000). The Department may utilize this deposit for payment of the costs of the project. (B) If the accepted bid amount plus allowances is in excess of the advance deposit amount, the COUNTY will provide an additional deposit within fourteen (14) calendar days of notification from the Department or prior to posting of the accepted bid, whichever is earlier, so that the total deposit is equal to the bid amount plus allowances. The Department will notify the COUNTY as soon as it becomes apparent the accepted bid amount plus allowances is in excess of the advance deposit amount; however, failure of the Department to so notify the COUNTY shall not relieve the COUNTY from its obligation to pay for its full participation on final accounting as provided herein below. If the COUNTY cannot provide the additional deposit within 14 days, a letter must be submitted to and approved by the Department's project manager indicating when the deposit will be made. The COUNTY understands the request and approval of the additional time could delay the project, and additional costs may be incurred due to a delay of the project. (C) If the accepted bid amount plus allowances is less than the advance deposit amount, the Department will refund the amount that the advance deposit exceeds the bid amount plus allowances if such refund is requested by the COUNTY in writing. (D) Should project modifications occur that increase the COUNTY's share oftotal project costs, the COUNTY will be notified by the District accordingly. The COUNTY agrees to provide, without delay, in advance of the additional work being performed, adequate funds to ensure that cash on deposit with the Department is sufficient to fully fund its share of the project. The Department shall notify the COUNTY as soon as it becomes apparent the actual costs will overrun the award amount; however, failure of the Department to so notify the COUNTY shall not relieve the COUNTY from its obligation to pay for its full participation on final accounting as provided herein below. (E) The Department intends to have its final and complete accounting of all costs incurred in connection with the work performed hereunder within three-hundred and sixty days of fmal payment to the Contractor. All project cost records and accounts shall be subject to audit by a representative of the COUNTY for a period of three (3) years after fmal close out of the project. The Participant will be notified of the final cost. Both parties agree that in the event the final accounting of total project costs pursuant to the terms of this agreement is less than the total deposits to date, a refund of the excess will be made by the Department to the COUNTY. (F) In the event said final accounting of total project costs is greater than the total deposits to date, the COUNTY will pay the additional amount within forty (40) calendar days from the date of the invoice from "the Department. The COUNTY agrees to pay interest at a rate as established pursuant to Section 55.03, F. S., on any invoice not paid within forty (40) calendar days until the invoice is paid. (0) Type of Deposit: . The payment of funds under this Locally Funded Agreement will be made directly to the Department for deposit and as provided in the attached MOA between COUNTY, Department and the State of Florida, Department of Insurance, Division of Treasury. (H) Contact Persons: COUNTY: Address: 1100 Simonton St. Rm. 231 Key West, FL 33040 Contact Person: David Koppel Telephone # (305) 292-4560 Fax # (305) 292-4558 DEPARTMENT: District Contact: David J. Mendez Telephone #: (305)470-5207 suncom: 429-5207 Fax # (305L 470-5547 suncom: 429-5547 2. The Department's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature, and nothing herein shall be construed to violate the provisions of Section 339.135 (6)(a), Florida Statutes, which provides: The Department, during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection, is null and void and no money may be paid on such contract. The Department shall require a statement from the Comptroller of the Department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of a contract for periods exceeding one year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years; and this paragraph shall be incorporated verbatim in all contracts of the Department which are for an amount in excess of $25,000 and which have a term for a period of more than one year. 3. The DEPARTMENT agrees to I'rovide the COUNTY's Public Works Department with draft and final copies of all work products for the Construction Phase of the PROJECT, including, but not limited to, technical reports, studies, plans and specifications for the COUNTY's review and records. 4. The community involvement and public information tasks shall be accomplished by the COUNTY in conjunction with the DEPARTMENT. 5. In the event it becomes necessary for the DEPARTMENT to institute suit for the enforcement of the provisions of this AGREEMENT, the COUNTY shall pay the DEPARTMENT's reasonable attorney fees and court costs if the DEPARTMENT prevails. In the event the COUNTY prevails in said suit, the DEPARTMENT shall pay the COUNTY's reasonable attorney fees and court costs. 6. To the extent permitted by law, the COUNTY agrees to indemnify the DEPARTMENT and all of its officers, agents, or employees' from all claims, demands, or liability due to any act or omission, neglect or wrongdoing of the COUNTY or any of its officers, agents, or employees, and the COUNTY agrees to defend the DEPARTMENT against any and all such claims or demands which may be claimed and have arisen as a result of or in connection with the COUNTY's participation in this Agreement. Nothing contained herein shall be construed so as to contravene the provisions of Section 768.28. of the Florida Statutes, nor shall this Article be construed to require the COUNTY to indemnify the DEPARTMENT's own negligence. 7. To the extent permitted by law, the DEPARTMENT agrees to indemnify the COUNTY and all of its officers, agents, or employees from all claims, demands, or liability due to any act or omission, neglect or wrongdoing of the DEPARTMENT or any of its officers, agents, or employees; and the DEPARTMENT agrees to defend the COUNTY against any and all such claims or demands which may be claimed and have arisen as a result of or in connection with the DEPARTMENT's participation in this Agreement. Nothing contained herein shall be construed so as to contravene the provisions of Section 768.28 of the Florida Statutes, nor shall this Article be construed to require the DEPARTMENT to indemnify the COUNTY for the COUNTY's own negligence. 8. This Agreement shall be governed and construed in accordance with the.laws of the State of Florida. 9. If any part of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, if such remainder continues to conform to the terms and requirements of the applicable law. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by their duly authorized officers, and their official seals hereto affixed, the day and year first above written. MONROE COUNTY STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BY: L)jt.. >n ~ BY: ~h~ TITLE: TITLE: fJ1 ~/o,... ,/ c.t. al'r Yn 4^- ~',_. ....' \ \ -., . APPROVED AS TO FORM County Attorney .... ATTEST: ff7~/?n~ TITLE: fhirn ,A /:, na five if1)$; '.s.-~J7.! APPROVED AS TO FORM ~~~o District General Counsel