Item C21 C21
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE i Mayor Holly Merrill Raschein,District 5
The Florida Keys Mayor Pro Tern James K.Scholl,District 3
Craig Cates,District 1
Michelle Lincoln,District 2
' David Rice,District 4
Board of County Commissioners Meeting
March 20, 2024
Agenda Item Number: C21
2023-2155
BULK ITEM: Yes DEPARTMENT: Engineering Services
TIME APPROXIMATE: STAFF CONTACT: Judy Clarke X4329
no
AGENDA ITEM WORDING: Approval of an agreement with Florida Department of Transportation
(FDOT) to allow temporary suspension of toll collection at Card Sound Road during nighttime closures
of US 1 along the 18-mile stretch and detour of traffic to Card Sound Road to allow FDOT contractor
to perform repairs to the road from MM 108.4 to MM 112.8 (18-mile stretch)under FDOT project FM
446005-1, and to provide for reimbursement of lost toll revenue by FDOT to the County when the toll is
suspended during the project.
ITEM BACKGROUND:
FDOT is developing the design for roadway project FM 446005-1, repairs to US 1 between MM 108.4
and MM 112.8 (18-mile stretch). The work will include temporary nighttime closures of US 1 for
approximately 40 days. During the closures traffic will be detoured to Card Sound Road and the toll
will be suspended. The closures are expected to occur in summer 2025.
Under the agreement FDOT will reimburse the County $471 per lane per detour day to make up for the
lost revenue from suspending the toll. It is anticipated that most closures will only be one
lane/direction. The daily reimbursement rate was determined by obtaining the highest nightly toll
revenue from 8 pm to 6 am in a week in August 2023 and increasing that by 5% to account for a CPI
increase in the toll rate next year.
PREVIOUS RELEVANT BOCC ACTION:
none
INSURANCE REQUIRED:
No
CONTRACT/AGREEMENT CHANGES:
none
STAFF RECOMMENDATION: Approval
941
DOCUMENTATION:
Project Funding Agreement with Monroe County rev. 0 1-03-24—sm- MG rev. 3-5-24-signed.pdf
FINANCIAL IMPACT:
none
942
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
FPN: Fund: FLAIR Category:
Org Code: FLAIR Obj:
FPN: Fund: FLAIR Category:
Org Code: FLAIR Obj:
FPN: Fund: FLAIR Category:
Org Code: FLAIR Obj:
County No: Contract No: Vendor No:
This Department Funding Agreement("Agreement") is entered into this day of
(the "Effective Date") between the State of Florida Department of Transportation, an agency of the State of the
Florida (the "Department") and Monroe County, a governmental entity existing under the laws of the State of
Florida(the "Agency") (each a"Parry" and collectively, the "Parties").
RECITALS
WHEREAS,the Department is developing the design for roadway project FM 446005-1, which is more
particularly described in Exhibit "A" to this Agreement (the "Project"), located along SR 5/US 1/Overseas
Highway (the "State Road") from MM 108.4 to MM 112.8 (the "Project Limits"), in Monroe County, Florida;
and
WHEREAS, during construction of the Project, there will be temporary road closures on the State Road
for approximately 40 days; and
WHEREAS,to ensure continued mobility and traveler safety during any required temporary closures of
the State Road in connection with the Project, all traffic will be detoured to CR 905A/Card Sound Road ("Card
Sound Road"), an Agency road; and
WHEREAS, the Agency has agreed to suspend the tolls it currently collects at Card Sound Road for the
duration of the temporary closures of the State Road("Detour Days)"), and the Department has agreed to reimburse
the Agency for its loss of toll revenue at Card Sound Road in connection with the Project("Toll Revenue Loss");
WHEREAS, the Department and the Agency hereto mutually recognize the need for entering into this
Agreement pursuant to Section 163.01, Florida Statutes, setting forth the terms and conditions under which the
Department will reimburse the Agency for its Toll Revenue Loss in connection with the Project; and
NOW, THEREFORE, in consideration of the premises, the mutual covenants and other valuable
considerations contained herein,the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
1. Recitals. The foregoing recitals are true and correct and are incorporated into the body of this Agreement,
as if fully set forth herein.
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943
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
2. Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall
continue until the completion of the Project (the "Completion Date"), unless earlier terminated under Section 7
of this Agreement.
3. Toll Revenue Loss.
a. The estimated Toll Revenue Loss was calculated as set forth in Exhibit `B." However, the total
Department funding available to reimburse the Agency for the Toll Revenue Loss is Thirty Thousand Dollars and
00/100 ($30,000.00) ("Department Funding"). A mutually agreeable amendment to this Agreement is required
for any re-budgeting of Department Funding provided under this Agreement.
b. Any loss of toll revenue at Card Sound Road incurred by the Agency prior to the Effective Date
or after the Completion Date or other termination of this Agreement will not be eligible for reimbursement by the
Department. If the Toll Revenue Loss is not included in the first year of the Department's adopted work program
for the state fiscal year that includes the Effective Date, it is understood that Department funding in eligible Toll
Revenue Loss is subject to:
i. Legislative approval of the Department's appropriation request in the work program year that the
Toll Revenue Loss is scheduled to be incurred;
ii. Availability of funds as stated in Sections 5.c. and 5.d. of this Agreement; and
iii. Approval of all contracts or other obligating documents and all other terms of this Agreement.
4. Requests for Reimbursement.
a. Requests for reimbursement by the Agency shall be in writing and shall include an invoice and
supporting documentation as described in Exhibit "C," as applicable, that are acceptable to the Department. All
invoices shall reference the Project number, FM 446005-1-58-01. Supporting documentation must provide
evidence that the payment requested is commensurate with the Toll Revenue Loss incurred by the Agency. The
Agency shall submit requests for reimbursement to the Department no less than once every ninety (90) days
(quarterly). If the Agency fails to submit quarterly invoices to the Department, and such failure results in the loss
of state appropriation authority the Department will not be obligated to provide any additional funding for the
Toll Revenue Loss.
b. The Agency must submit the final invoice on the Project to the Department within 120 days of the
Completion Date. Invoices submitted after the 120-day time period may not be paid.
C. ❑ If this box is selected, the Project is not included in the first year of the Department's
adopted work program for the state fiscal year that includes the Effective Date. The Department will only
reimburse the Agency in accordance with section 339.12, Florida Statutes. The Agency will not invoice the
Department for Project costs until July 1 of the state fiscal year(s) the Project is scheduled in the Department's
work program as of the Effective Date. After receipt of properly documented invoices and supporting
documentation as otherwise required in this Agreement, payment(s) will be made to the Agency to reimburse
eligible Toll Revenue Loss in annual amounts equal to the amounts programmed in the Department's adopted
Page 2 of 10
944
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
work program in each state fiscal year,up to the amount of eligible Toll Revenue Loss incurred after the Effective
Date.
5. Payment.
a. Subject to other provisions of this Agreement, the Department will reimburse the Agency for
eligible Toll Revenue Loss, up to the amount of the Department Funding. Notwithstanding any other provision
of this Agreement, the Department may elect by written notice not to make a payment if:
i. The Department determines that the Agency has misrepresented a material fact in any
documents submitted to obtain the Department Funding under this Agreement, or any document or data
furnished pursuant to this Agreement;
ii. There is any pending litigation with respect to any acts by the Agency which may
jeopardize or adversely affect the Project, this Agreement, or payments for the Toll Revenue Loss;
iii. There has been any violation of the conflict-of-interest provisions contained in this
Agreement; or
iv. The Department determines the Agency is otherwise in default under any provisions of this
Agreement.
b. The Department has twenty(20)days to deliver a request for payment(voucher)to the Department
of Financial Services. The twenty (20) days are measured from the date the invoice is received.
If a payment is not available within forty (40) days, a separate interest penalty at a rate as established pursuant to
Section 55.03(1),F.S.,will be due and payable,in addition to the invoice amount,to the Agency. Interest penalties
of less than one (1) dollar will not be enforced unless the Agency requests payment. Invoices that have to be
returned to an Agency because of Agency preparation errors will result in a delay in the payment. The invoice
payment requirements do not start until a properly completed invoice is provided to the Department.
C. The Department's performance and obligation to pay under this Agreement is contingent upon an
annual appropriation by the Legislature.
d. In the event this Agreement is in excess of$25,000 and has a term for a period of more than one
year, the provisions of Section 339.135(6)(a), Florida Statutes, are hereby incorporated:
"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 contracts for periods exceeding 1 year, but any
contract so made shall be executory only for the value of the services to be rendered or agreed to
Page 3 of 10
945
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
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 1 year."
6. Records.
a. Any records of Toll Revenue Loss incurred shall be maintained and made available upon request
to the Department at all times during the period of this Agreement and for five years after final payment is made.
Copies of these documents and records shall be furnished to the Department upon request. Records of Toll
Revenue Loss incurred include the Agency's general accounting records. If any litigation, claim,or audit is started
before the expiration of the required retention period, the records shall be retained until all litigation, claims, or
audit findings involving the records have been resolved.
b. The Agency shall permit the Department's authorized representatives to access and inspect all
records, and to audit the books,records and accounts pertaining to the Toll Revenue Loss.
C. The Agency shall submit to the Department such data, reports, records, contracts, and other
documents relating to the Toll Revenue Loss as the Department or FHWA may require.
7. Termination and Suspension.
a. Generally. If: (i) the Department abandons the Project prior to the Agency suspending the tolls
it currently collects at Card Sound Road; or(ii)the Agency fails to comply with applicable law or the terms of this
Agreement,the Department may,by written notice to the Agency, suspend any or all of its obligations under this
Agreement until such time as the event or condition resulting in such suspension has ceased or been corrected,
or the Department may terminate any or all of its obligations under this Agreement.
b. Actions Upon Termination or Suspension. Upon receipt of any final termination or suspension
notice from the Department, the Agency shall proceed promptly to carry out the actions required in such notice,
which may include any or all of the following: (1)necessary action to terminate or suspend,as the case may be, any
suspension of toll collections at Card Sound Road;and(2)remitto the Department such portion of the Department
Funding previously received as is determined by the Department to be due under the provisions of the Agreement.
The termination or suspension shall be carried out in conformity with the latest schedule, plan, and budget as
approved by the Department. The approval of a remittance by the Agency shall not constitute a waiver of any claim
which the Department may otherwise have arising out of this Agreement.
8. Miscellaneous Provisions.
a. Compliance with Public Records Laws. The Agency agrees to comply with all provisions
provided in Chapter 119 Florida Statutes. If the Agency receives a public records request concerning the
Toll Revenue Loss or Department Funding pursuant to this Agreement, the Agency must take appropriate
action as required by Chapter 119, Florida Statutes. The Department reserves the right to unilaterally cancel
this Agreement for refusal by the Agency to comply with the provisions of Chapter 119, Florida Statutes.
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946
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
b. Interest of Members of, or Delegates to, Congress or Legislature. No member or
delegate to the Congress of the United States, or the State of Florida legislature, shall be admitted to any share
or part of the Agreement or any benefit arising therefrom.
C. Department Not Obligated to Third Parties. The Department shall not be obligated or liable
under this Agreement to any party other than the Agency. It is specifically agreed between the Parties executing
this Agreement that it is not intended by any of the provisions of any part of this Agreement to create in the public
or any member thereof, a third parry beneficiary under this Agreement, or to authorize anyone not a parry to this
Agreement to maintain a suit pursuant to the terms or provisions of this Agreement.
d. Relationship of Parties. The Agency, its employees, contractors, subcontractors, consultants, and
subconsultants are not agents of the Department as a result of this Agreement.
e. When Rights and Remedies Not Waived.In no event shall the making by the Department of any
payment to the Agency constitute or be construed as a waiver by the Department of any breach of covenant or
any default which may then exist, on the part of the Agency, and the making of such payment by the Department
while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to
the Department with respect to such breach or default.
f. Governing Law. This Agreement shall be governed by and construed in accordance with the laws
of the State of Florida.
g. Sovereign Immunity. Nothing in this Agreement shall constitute a waiver by either parry of its
sovereign immunity for any damages claimed by third parties.
It. Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining
provisions shall be construed and enforced as if such invalid or unenforceable provision had not been contained
in this Agreement, unless the omission of the invalid or unenforceable provision would cause this Agreement to
violate any applicable law or fail its fundamental purpose.
i. Bonus or Commission. By execution of the Agreement, the Agency represents that it has not
paid and, also, agrees not to pay, any bonus or commission for the purpose of obtaining an approval of the
Department funding hereunder.
j. Notices. Any notice, demand, or request which is required to be given under this Agreement in
writing shall be delivered in the following manner:
If to the Department:
Auraliz Benitez, P.E.
1000 NW 111 Ave, Room 6251, Miami, FL 33172
Office: (305) 470-5471
Auraliz.Benitez@dot.state.fl.us
Page 5 of 10
947
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
If to Agency: Judith Clarke, P.E., Director of Engineering Services
Monroe County Engineering Department
1100 Simonton Street, Key West FL 33040
Office: (305) 295-4329
Clarke-judith@monroecounty-fl.gov
k. Agreement Format. All words used in this Agreement in the singular form shall extend to and
include the plural. All words used in the plural form shall extend to and include the singular. All words used in
any gender shall extend to and include all genders.
1. JURY TRIAL WAIVER. THE AGENCY AND THE DEPARTMENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
In. Limitation on Liability. Notwithstanding anything to the contrary in this Agreement, in no event
shall the Agency or the Department be liable to each other for any indirect, punitive, special or consequential
damages (including, but not limited to, loss of profits, interest, earnings or use) whether arising in contract, tort
or otherwise, even if the parry has been advised that such damages are possible. The limitation of remedies
provided in the preceding sentence shall survive the expiration or termination of this Agreement.
n. Execution of Agreement. This Agreement may be simultaneously executed in a minimum of
two counterparts, each of which so executed shall be deemed to be an original, and such counterparts together
shall constitute one in the same instrument.
o. State Lobbying. No funds received pursuant to this Agreement may be expended for lobbying
the Legislature, the judicial branch or a state agency.
P. Agreement not Assignable. The Agency may not assign any of its rights or obligations under
this Agreement.
q. Amendments. This Agreement may not be amended, except by a writing signed by both Parties.
r. Exhibits. The following Exhibits are attached and incorporated into this Agreement:
❑ Exhibit"A": Project Description
❑ Exhibit"B": Toll Revenue Loss
❑ Exhibit"C": Supporting Documents for Agency Requests for Reimbursement
❑ Additional Exhibit(s): , are attached and are part of this Agreement
Page 6 of 10
948
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date.
STATE OF FLORIDA, MONROE COUNTY
DEPARTMENT OF TRANSPORTATION
By: By:
Mayor
(SEAL)
Attest: KEVIN MADOK, Clerk
By:
As Deputy Clerk
Date
Legal Review (Department) Legal Review
MC3NROE COUNTY ATTORNEY
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ASSISTANT COUNTY ATTORNEY
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Page 7 of 10
949
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
EXHIBIT "A"
PROJECT DESCRIPTION
A. Project Description (description of the Department's Project to provide context):
This Project,FM 446005-1-52-01 is a Resurfacing,Restoration,and Rehabilitation(RRR)of SR 5/US-1/Overseas
Highway from MM 108.4 to MM 112.8 (90060000 - MP 34.346 to MP 38.777) and access road to Gilbert's
Resort(90060115 —MP 0.000 to MP 0.219 and 90060116—MP 0.000 to MP 0.552) in Monroe County, Florida.
Safety and design improvements under this project include:
• Cross slope and shoulder drop-off corrections;
• Widening at auxiliary lanes (3 locations)to accommodate bicycle keyhole lanes;
• Pavement reconstruction at select locations to address base failure;
• Guardrail upgrades; and
• Signing and pavement marking upgrades and refurbishments
B. Project Location (limits, city, county):
❑ Illustration/graphic/map of project area is applicable and attached to this Exhibit"A."
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C. Department Project Manager. The Department's Project Manager for the Project, and contact
information, is:
Auraliz Benitez, P.E.
1000 NW 111 Ave, Room 6251, Miami, FL 33172
Office: (305) 470-5471
Aural iz.Benitez(a dot.state.fl.us
Page 8 of 10
950
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
EXHIBIT`B"
TOLL REVENUE LOSS
Toll Revenue Loss Calculation:
Loss of Toll Revenue is established as $ 471.00 per Detour Day per direction (i.e., souhbound, northbound).
Total loss of Toll Revenue assuming one direction per Detour Day:
Loss of Toll Revenue over a 40-day period: $ 471.00 x 40 days = $ 18,840.00
Contingency Allocation: $ 11,160.00
Total Loss of Toll Revenue: $ 30,000.00
Detours from the State Road onto Card Sound Road shall only occur between the hours of 8:00 PM and 6:00 AM
Sunday through Thursday (for example, starting Sunday night from 8:00 PM to Monday morning 6:00 AM, then
starting Monday night from 8:00 PM to Tuesday morning 6:00 AM,and so on).During construction of the Project,
the Department shall notify the Agency of any necessary State Road lane closures at least seventy two (72)hours
in advance to coordinate the Detour Days.
In the event that the Department maintains the State Road lanes closed and continues to detour traffic to Card
Sound over the approximated 40 Detour Days, the Department shall reimburse the Agency for each day over the
approximated 40 Detour Days at the rate of$471.00 per direction pursuant to this Agreement, except in the event
of Force Majeure Days as defined below.
Notwithstanding the above, in the event that the Engineer deems it necessary to maintain the State Road lanes
closed during any of the approximated 40 Detour Days as a result of conditions beyond the control of the
Department or its contractor, including, but not limited to, catastrophic events, accidents not related or caused by
the Department or its contractor's operations, etc. ("Force Majeure Days"), such Force Majeure Days will not be
counted towards the approximated 40 Detour Days under this Agreement.
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951
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE HIGHWAY SYSTEM
DEPARTMENT FUNDING AGREEMENT
EXHIBIT"C"
SUPPORTING DOCUMENTS FOR AGENCY REQUESTS FOR REIMBURSEMENT
I. Email from the Department project construction administration team (Resident Engineer,
Consultant Construction Engineering and Inspection (CEI), etc.) requesting toll
suspension, identifying the date and direction for which toll suspension is requested; and
2. Email from the Card Sound Toll Authority confirming the suspension of tolls for the
requested date and direction as per the Department's request.
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952