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2. 02/16/2005 Agreement DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DA TE: March 22, 2005 TO: Richard Collins County Attorney FROM: Kathy Peters Executive Assistant Pamela G. Hanc~ Deputy Clerk c:u A TTN: At the February 16, 2005, Board of County Commissioner's meeting the Board granted approval and authorized execution of an Interlocal Agreement between Monroe County and the City of Key Colony Beach for their administration of a contract with A vcon, Inc. for designlbuild of Sadowski Causeway Bridge repairs. Enclosed are two duplicate originals for your handling. Should you have any questions please do not hesitate to contact this office. cc: County Administrator w/o document Finance File' INTERLOCAL AGREEMENT KEY COLONY BEACH AND MONROE COUNTY THIS INTERLOCAL AGREEMENT Is entered Into pursuant to Sec. 163.01, FS., by and between Monroe County (County), a political subdivision of the State of Florida, and the City of Key Colony Beach (City), an munidpal corporation In the State of Florida. WHEREAS, on July 15, 2003, the parties entered Into an Interlocal Agreement to share equally the costs of outside (non-County) engineering services for and the costs of repairs to Sadowski Causeway BrIdge; and WHEREAS, said agreement provided for the County to assign to City the State of Florida easement for the bridge and causeway or to deed same to City If owned by the County at the time repairs are completed; and WHEREAS, Avcon, Inc. has submitted design build proposals In the amount of $601,400 for Bridge Deck Replacement and $878,000 for Complete Bridge Replacement; and WHEREAS, the County and the City desire to put in place procedures for the expenditure and reimbursement of the funds; now therefore IN CONSIDERATION of the mutual consideration and premises set forth below, the parties agree as follows: 1. FUNDING. The County shall pay to the City a maximum of $439,000 for the administration, planning and construction of the Sadowski Causeway BrIdge replacement. City shall let the construction contract and administer same. The City must establish fiscal control and fund accounting procedures that comply with generally accepted government accounting principles in order to assure that the funds proVided to the City are spent for the purposes set forth In this agreement. Any funds transferred by the County to the City under this agreement that are detennlned by the Clerk or an auditor employed by the other party or employed by the State to have been spent on a purpose not contemplated by this agreement must be paid back to the County with Interest calculated pursuant to Sec. 55.03(1), FS, from the date the auditor determines the funds were expended for a purpose not authorized by this agreement. The City agrees to provide the Clerk of Monroe County with quarterly status reports concerning the expenditure of these funds in suffident detail to demonstrate compliance with the provisions of this agreement. Funding under this Agreement Is contingent upon annual appropriation by the County. Payment for expencfltures pennissible by law and County policies shall be made through reimbursement to City upon presentation of Application for Payment Summary- AlA Document G702, invoices, canceled checks and other documentation necessary to support a daim for reimbursement. Included in said documentation shall be proof that the City has applied to the property matching funds equivalent to or greater than the amount invoiced to the County. The application for payment document must be certified through a statement signed by an officer of the City and notarized, declaing that representations in the invoice are true and factual. City shall also provide partial releases of liens if applicable. Colriy shall retain 10% of any payment on work in progress until the City has accepted the County's ownership interest in the bridge and causeway and responsibility for maintenance thereof. Final payment will not be made until the following documents are complete and submitted to the COlI'lty: AlA Document G-702 Application for Payment Summary AlA Document G-704 Certificate of Substantial Completion AlA Document G-706 Contractor's Affidavit of Debts & Claims AlA Document G-706A Contractor's Affidavit of Release of Liens AlA Document G-707 Consent of Surety to Final Payment Final Release of Lien Affidavit and Partial Release of Lien 2. USE OF fUNDS. The City shall utilize those funds described In Paragraph 1 for the administration, planning and construction of the Sadowski Causeway Bridge replacement. 3. TERM. this Agreement shall commence on March 1, 2005, and terminate on February 28, 2006, unless terminated earlier pursuant to section 31, below, or unless extended by an amendment approved in writing by both parties. 4. RECORDS - ACCESS AND AUDITS. Each party shall maintain adequate and complete records for a period of four years after termination of thIS Agreement. The State, each party, their officers, employees, agents and contractors shall have access to the other party's books, records, and documents related to this Agreement upon request. The access to and Inspection of such books, records, and documents by the aforementioned government representatives shall occur at any reasonable time. 5. RELAnONSHIP OF PARnES. City Is, and shall be an Independent contractor and not an agent or servant of the County. City shall exercise control, direction, and supervision over the means and manner that Its personnel, contractors and volunteers perfonn the work for which purpose this Agreement is entered. City shall have no authority whatsoever to act on behalf and/or as agent for the County In any promise, agreement or representation other than spectfically provided for in this Agreement. The County shall at no time be legally responsible for any negligence on the part of City, its employees, agents or volunteers resulting in either bodily or personal injury or property damage to any individual, property or corporation. 6. TAXES. City must pay all taxes and assessments, if any, Including any sales or use tax, levied by any government agency with respect to City's operations related to this agreement. 7. INSURANCE. The parties to this agreement stipulate that each is a state governmental agency as defined by Florida Statutes and represents to the other that it has purchased suitable Public Uablllty, Vehlde Uabillty, and Workers' Compensation Insurance, or Is self-Insured, In amounts adequate to respond to any and all claims under federal or state actions for dvll rights violations, which are not limited by Florida Statutes Section 768.28 and Chapter 440, as well as any and all daims within the limitations of Rorida Statutes Section 768.28 and Chapter 440, arising out of the activities governed by this agreement. 2 To the extent allowed by law, each party shall be responsible for any acts of negligence on the part of its employees, agents, contractors, and subcontractors and shall defend, indemnify and hold the other party harmless from all claims arising out of such actions. City agrees to keep in full force and effect the required insurance coverage during the term of this Agreement. If the Insurance policies originally purchased which meet the requirements of this lease are canceled, terminated or reduced In coverage, then Oty must Immediately substitute complying pOliCies so that no gap In coverage occurs. Copies of current policy certificates shall be flied with the County whenever acquired or amended. 8. HOLD HARMLESS. To the extent allowed by law, each party Is liable for and must fully defend, release, discharge, indemnify and hold harmless the other party, Its officers and employees, agents and contractors, , from and against any and all claims, demands, causes of action, losses, costs and expenses of whatever type - induding investigation and witness costs and expenses and attorneys' fees and costs - that arise out of or are attributable to the other party's operations in connection with this Agreement except for those daims, demands, damages, liabilities, actions, causes of action, losses, costs and expenses that are the result of the sole negligence of the other party. Purchase of the insurance required under this Agreement does not release or vitiate a party's obligations under this paragraph. Neither party waives any of its sovereign immunity rights indudlng but not limited to those expressed in Section 768.28, Florida Statutes. 9. NON-DISCRIMINAnON. County and City 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 oa:urred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. County and City agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These indude but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits disaimlnation on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 use 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 dlsalmlnatlon on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC 55. 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 CPL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, 55. 523 and 527 (42 USC 55. 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 1968 (42 use s. et seq.), as amended, relating to nondiscrimination in the sale, rental or flnandng 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) Monroe County Code prohibitions against dIsCrimination on the bases of race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender Identity or expression, familial status or age; and 11) any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. 3 10. RESTRlC119NS ON AGREEMENTS ENTEREQ P~RSUANT TO THIS AGREEMENT. The City shall include in all agreements funded under this agreement the following terms: a) Anti-disaimination. Contractor agrees that they will not discriminate against any employees or applicants for employment or against persons for any other benefit or service under this agreement because of their race, color, religion, sex, national origin, or physical or mental handicap where the handicap does not affect the ability of an individual to perfonn in a position of employment, and to abide by all federal and state laws regarding non-discrimination. b) Anti-kickback. Contractor warrants that no person has been employed or retained to solicit or secure this agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, and that no employee or officer of the City has any interest, financially or otherwise, in contractor. For breach or violation of this warranty, the Contractor shall have the right to amul this agreement without liability or, in its discretion, to deduct from the agreement price or consideration, the full amount of such commission, percentage, brokerage or contingent fee. Contractor acknowledges that it is aware that funding for this agreement is available at least in part through the County and that violation of this paragraph may result in the County withdrawing funding for the Project. c) Hold harmless/indemnification. Contractor acknowledges that this agreement is funded at least in part by the County and agrees to indemnify and hold harmless the County and any of its officers and employees from and against any and all daims, liabilities, litigation, causes of action, damages, costs, expenses (indudlng but not limited to fees and expenses arising from any factual Investigation, discovery or preparation for litigation), and the payment of any and all of the foregoing or any demands, settlements or judgments (collectively daims) arising directly or Indirectly from any negligence or aiminal conduct on the part of Contractor in the performance of the tenns of this agreement. The Contractor shall immediately give notice to the County of any suit, claim or action made against the Contractor that is related to the activity under this agreement, and will cooperate with the County In the investigation arising as a result of any suit, action or claim related this agreement. d) Insurance. Contractor agrees that it maintains in force at Its own expense a liability insurance policy which will Insure and indemnify the City and the County from any suits, claims or actions brought by any person or persons and from all costs and expenses of litigation brought against the Contractor for such injuries to persons or damage to property occurring during the agreement or thereafter that results from perfonnance by Contractor of the obligations set forth In this agreement. At all times during the tenn of this agreement and for one year after acceptance of the project, Contractor shall maintain on file with the County a certificate of the Insurance of the carriers showing that the aforesaid insurance policy Is in effect. The following coverage's shall be provided: 1. Workers Compensation insurance as required by Florida Statutes. 2. Commercial General Liability Insurance with minimum limits of $500,000 per occurrence for bodily injury, personal injury and property damage. 4 3. Comprehensive Auto Uabillty Insurance with minimum limits of $300,000 combined single limit per occurrence. The City and the County shall be named as additional insured on all insurance policies except exempt workers compensation. The policies shall provide no less than 30 days notice of cancellation, non-renewal or reduction of coverage. At all times during the term of this agreement and for one year after acceptance of the project, Contractor shall maintain on file with the County a certificate of insurance showing that the aforesaid Insurance coverage's are in effect. e) Ucensing and Permits. Contractor warrants that it shall have, prior to commencement of work under this agreement and at all times during said work, all required licenses and permits whether federal, state, County or City. f) Right to Audit. The Contractor shall keep such records as are necessary to document the performance of the agreement and expenses as incurred, and give access to these records at the request of the County, the State of florida or authorized agents and representatives of said government bodies. 11. GOVERNING LAW. VENUE. INTERPRETAnON. 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 proceeding is instituted for the enforcement or interpretation of this Agreement, the County and City agree that venue will lie In the appropriate court or before the appropriate administrative body in Monroe County, Florida. The COunty and City 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. 12. SEVERABIUTY. If any term, covenant, condition or proVision of this Agreement (or the application thereof to any drcumstance 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 City 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. 13. ATTORNEY'S FEES AND COSTS. The County and City 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 5 the Ronda Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 14. BINDING EFFECI'. The terms, covenants, conditions, and provisions of this Agreement shall bind and Inure to the benefit of the County and City and their respective legal representatives, successors, and assigns. 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 governmental approval, as required by law. 16. CLAIMS FOR FEDERAL OR STATE AID. County and City 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; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 17. ADJUDI~TlQN 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 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 Rorida law. 18. COOPERAnON. 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 partidpate, 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. 19. COVENANT OF NO INTEREST. County and City covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its perfonnance under this Agreement, and that only interest of each is to perfonn and receive benefits as recited In this Agreement. 20. CODE OF ETHICS. Each party agrees that officers and employees of that party 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, solidtation 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. 21. NO SOLlCITAnON/PAYMENT. The COunty and City warrant that, in respect to itself, it has neither employed nor retained any 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 wor1<ing solely for It, any fee, commission, percentage, gift, or other 6 consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, each party agrees that the other party 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, gjft, or consideration. 22. PUBUC ACCE$S. The County and City 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, Ronda Statutes, and made or received by the County and City in conjunction with this Agreement; and the non-breaching party shall have the right to unilaterally cancel this Agreement upon violation of this provision by the other party. 23. NON-WAIVER OF IMMUNITY. Notwithstanding he provisions of Sec. 286.28, Ronda Statutes, the partidpation of the County and City In this Agreement and the acquisition of any commerdal liability insurance coverage, self-insurance coverage, or local government 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 City be required to contain any proviSion for waiver. 24. PRIVILEGES AND IMMUNnIES. 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. 25 . LEGAL OBUGADONS AND I\ESPONSIBILInE$. Non-Delegation of Constitutional or Statutory Duties. This Agreement is not Intended to, nor shall it be construed as, relieving any partfdpating 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 County, except to the extent permitted by the Florida constitution, state statute, and case law. 26. NON..RELlANCE BY NON-PARnES. 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 City agree that neither the County nor the City 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. 7 27. ATTEST~nONS. Each party agrees to execute such documents as the other party may reasonably require, to Indude a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free WOrkplace Statement. 28. 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 personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 29. EXEcunON 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. 30. 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. 31. TERMINAnON. The County may treat City In default and terminate this Agreement Immediately, without prior notice, upon failure of City to comply with any provision related to compliance with all laws, rules and regulations. This Agreement may be tenninated by County due to breaches of other provisions of this Agreement If, after written notice of the breach is delivered to City does not cure the breach within 7 days following delivery of notice of breach. The City may terminate this Agreement upon giving sixty (60) days prior written notice to County. Any waiver of any breach of covenants herein contained shall not be deemed to be a continuing waiver and shall not operate to bar either party from declaring a forfeiture for any succeeding breach either of the same conditions or covenants or otherwise. 32. ASSIGNMENT. Neither party may assign this Agreement or aSSign or subcontract any of its obligations under this Agreement without the approval of the other party's governing board. All the obligations of this Agreement will extend to and bind the legal representatives, successors and assigns of County and City. 33. SUBORDINAnON. This Agreement is subordinate to the laws and regulations of the United States, the State of flOrida, and the County, whether in effect on commencement of this Agreement or adopted after that date. 34. INCONSISTENCY. If any item, condition or obligation of this Agreement is in conflict with other Items In this Agreement, the inconsistencies shall be construed so as to give meaning to those terms which limit each party's responsibility and liability. 35. GOVERNlftG LAWS/VENUE. This Agreement is governed by the laws of the State of Florida and the United States. Venue for any dispute arising under this Agreement must be in Monroe County, Florida. In the event of any litigation, the prevailing party is entitled to a reasonable attorney's fee and costs. 8 36. ETHICS CLAUSE. City 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. 010-1990. For breach or violation of this provision, the County may, in Its discretion, terminate this Agreement without liability and may also, In Its disaetion,deduct from the Agreement 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. 37. CONSTRUCTION. This Agreement has been carefully reviewed by County and City. Therefore, this Agreement Is not to be construed against any party on the basis of authorship. 38. NOnce;. Notices In this Agreement, unless otherwise Specified, must be sent by certified mall to the following: fOR COUNTY: County Administrator 1100 Simonton 5treet Key West, Fl 33040 FOR CI1Y: Thomas O. Wright City Attorney for Key COlony Beach 9711 Overseas Highway Marathon, FL 33050 39. FULL UNDERSTANDING. This Agreement Is the parties' final mutual understanding. It replaces any earlier agreements or understandings, whether written or oral. This Agreement cannot be modified. or replaced except by another written and signed agreement. '/~~~;;~~:.'" .~:'''' ",",:.~~'~.:"~ .....;:.":;::.;.~~.-.. .~.':.r!f~~.r:. 5...5 WHEREOF, the parties hereto have set their hands and seals the day ;"'~ rAJrst\ebQve written. i,~i,~.~~l~()UiAGE' Cktrk .BG~ BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BV-'j;a m~ Mayorl alrperson nIXIE M. SPEHAR (SEAL) ,~ttest: By~~t,~~ Clerk BOARD OF em COMMISSI~ERS OF KEY COLONY ... . By :,;'1 '..) ,\,) -.::) -""1,,,__, .... r' ~) c.l'! Ie;")