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HomeMy WebLinkAboutexhibit2ORIGINAL SOUTH FLORIDA WATER MANAGEMENT DISTRICT LOCAL GOVERNMENTAL AGREEMENT AGREEMENT NO. OT050648 BETWEEN THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT AND CITY OF MIAMI THIS AGREEMENT is entered into as of the by and between the. South Florida Water Management District (DISTRICT) and the City of Miami (CITY). WHEREAS, the DISTRICT is a public corporation of the State of Florida, created by the Florida Legislature and given those powers and responsibilities enumerated in Chapter 373, Florida Statutes, to include entering into contracts with public agencies, private corporations or other persons; and WHEREAS, the DISTRICT desires to provide financial assistance to the CITY for Avalon Storm Sewer Project, Phases 1 & 11 WHEREAS, the CITY warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms and conditions of this AGREEMENT; and WHEREAS, the Governing Board of the DISTRICT at its February 9, 2005 meeting, approved entering into this AGREEMENT with the CITY; NOW, THEREFORE, in consideration of the covenants and representations set forth herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. The DISTRICT agrees to contribute funds and the CITY agrees to perform the work set forth in Exhibit "A" attached hereto and made a part hereof, subject to availability of funds and in accordance with their respective authorities for design and construction of storm sewer improvements to include exfiltration trenches, cross drains, catch basins, manholes, a storm sewer force main, an emergency pump -out wet well, and surface restoration of all rights -of -way. 2. The period of performance of this AGREEMENT shall commence on the date of execution of this AGREEMENT and shall continue for a period of twenty-four (24) months. 3. The total DISTRICT contribution shall not exceed the amount of Seven Hundred Fifty Thousand Dollars and No Cents ($750,000.00). The DISTRICT will provide the full amount based on the Payment and Deliverable Schedule set forth in Exhibit "B", which is attached hereto and made a part of this AGREEMENT. The DISTRICT's contribution is subject to adequate documentation to support actual expenditures within the not -to -exceed AGREEMENT funding limitation of $750,000.00. In no event shall the DISTRICT be liable for any contribution hereunder in excess of this amount. If the total consideration for this AGREEMENT is subject to multi -year funding allocations, funding for each applicable fiscal year of this AGREEMENT will be subject to Governing Board budgetary appropriation. In the event the DISTRICT does not approve funding for any subsequent fiscal year, this AGREEMENT shall terminate nr �f- ,-/fr) Agreement No. OT050648 - Page 1 of 5 upon expenditure of the current funding, notwithstanding other provisions in this AGREEMENT to the contrary. The DISTRICT will notify the CITY in writing after the adoption of the final DISTRICT budget for each subsequent fiscal year if funding is not approved for this AGREEMENT. 4. The CITY shall submit quarterly financial reports to the DISTRICT providing a detailed accounting of all expenditures incurred hereunder throughout the term of this AGREEMENT. The CITY shall report and document the amount of funds expended per month during the quarterly reporting period and the AGREEMENT expenditures to date within the maximum not -to -exceed AGREEMENT funding limitation. 5. The CITY shall cost share in the total amount of Four Million Five Hundred One Thousand Fifty Dollars and No Cents ($4,501,050.00) in conformity with the laws and regulations governing the CITY. 6. All work to be performed under this AGREEMENT is set forth in Exhibit "A", Statement of Work, which is attached hereto and made a part of this AGREEMENT. The CITY shall submit quarterly progress reports detailing the status of work to date for each task. The work specified in Exhibit "A" shall be under the direction of the CITY but shall be open to periodic review and inspection by either party. No work set forth in Exhibit "A" shall be performed beyond the expiration date, unless authorized through execution of an amendment to cover succeeding periods. 7. The CITY is hereby authorized to contract with third parties (subcontracts) for services awarded through a competitive process required by Florida Statutes. The CITY shall not subcontract, assign or transfer any other work under this AGREEMENT without the prior written consent of the DISTRICT's Project Manager. The CITY agrees to be responsible for the fulfillment of all work elements included in any subcontract and agrees to be responsible for the payment of all monies due under any subcontract. It is understood and agreed by the CITY that the DISTRICT shall not be liable to any subcontractor for any expenses or liabilities incurred under the subcontract(s). 8. Both the DISTRICT and the CITY shall have joint ownership rights to all work items, including but not limited to, all documents, technical reports, research notes, scientific data, computer programs, including the source and object code, which are developed, created or otherwise originated hereunder by the other party, its subcontractor(s), assign(s), agent(s) and/or successor(s) as required by the Exhibit "A", Statement of Work. Both parties' rights to deliverables received under this AGREEMENT shall include the unrestricted and perpetual right to use, reproduce, modify and distribute such deliverables at no additional cost to the other party. Notwithstanding the foregoing, ownership of all equipment and hardware purchased by the CITY under this AGREEMENT shall be deemed to be the property of the CITY upon completion of this AGREEMENT. The CITY shall retain all ownership to tangible property. 9. The CITY, to the extent permitted by law, assumes any and all risks of personal injury, bodily injury and property damage attributable to negligent acts or omissions of the CITY and the officers, employees, servants and agents thereof. The CITY represents that it is self -funded for Worker's Compensation and liability insurance, covering bodily injury, personal injury and property damage, with such protection being applicable to the CITY, its officers and employees while acting within the scope of their employment during performance of under this AGREEMENT. In the event that the CITY subcontracts any part or all of the work hereunder to any third party, the CITY shall require each and every subcontractor to identify the DISTRICT as an additional insured on all insurance policies as required by the CITY. Any contract awarded by the CITY shall include a provision whereby the CITY's subcontractor agrees to indemnify, pay on behalf, and hold the DISTRICT harmless from all damages arising in connection with the CITY's subcontract. 10. The CITY and the DISTRICT further agree that nothing contained herein shall be construed or interpreted as (1) denying to either party any remedy or defense available to such party under the laws of the State of Florida; (2) the consent of the State of Florida or its agents and agencies to be sued; or (3) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28, Florida Statutes. 11. The parties to this AGREEMENT are independent entities and are not employees or agents of the other parties. Nothing in this AGREEMENT shall be interpreted to establish any relationship other than that of independent entities, between the DISTRICT, the CITY, their employees, agents, subcontractors or assigns, during or after the term of this AGREEMENT. The parties to this AGREEMENT shall not assign, delegate or otherwise transfer their rights and obligations as set forth in this AGREEMENT Agreement No. OT050648 - Page 2 of 5 without the prior written consent of the other parties. Any attempted assignment in violation of this provision shall be void. 12. The parties to this AGREEMENT assure that no person shall be excluded on the grounds of race, color, creed, national origin, handicap, age or sex, from participation in, denied the benefits of, or be otherwise subjected to discrimination in any activity under this AGREEMENT. 13. The CITY, its employees, subcontractors or assigns, shall comply with all applicable federal, state and local laws and regulations relating to the performance of this AGREEMENT. The DISTRICT undertakes no duty to ensure such compliance, but will attempt to advise the CITY, upon request, as to any such laws of which it has present knowledge. 14. Either party may terminate this AGREEMENT at any time for convenience upon thirty (30) calendar days prior written notice to the other party. In the event of termination, all funds not expended by the CITY for authorized work performed through the termination date shall be returned to the DISTRICT within sixty (60) days of termination. 15. The CITY shall allow public access to all project documents and materials in accordance with the provisions of Chapter 119, Florida Statutes. Should the CITY assert any exemptions to the requirements of Chapter 119 and related Statutes, the burden of establishing such exemption, by way of injunctive or other relief as provided by law, shall be upon the CITY. 16. The CITY shall maintain records and the DISTRICT shall have inspection and audit rights below. The CITY shall similarly require each subcontractor to maintain and allow access to such records for audit purposes: A. Maintenance of Records: The CITY shall maintain all financial and non -financial records and reports directly or indirectly related to the negotiation or performance of this AGREEMENT including supporting documentation for any service rates, expenses, research or reports. Such records shall be maintained and made available for inspection for a period of five (5) years from the expiration date of this AGREEMENT, B. Examination of Records: The DISTRICT or designated agent shall have the right to examine in accordance with generally accepted governmental auditing standards all records directly or indirectly related to this AGREEMENT. Such examination may be made only within five (5) years from the expiration date of this AGREEMENT. C. Extended Availability of Records for Leal Disputes: In the event that the DISTRICT should become involved in a legal dispute with a third party arising from performance under this AGREEMENT, the CITY shall extend the period of maintenance for all records relating to the AGREEMENT until the final disposition of the legal dispute. All such records shall be made readily available to the DISTRICT. 17. Whenever the DISTRICT's contribution includes state or federal appropriated funds, the CITY shall, in addition to the inspection and audit rights set forth in paragraph #16 above, maintain records and similarly require each subcontractor to maintain and allow access to such records in compliance with the requirements of the Florida State Single Audit Act and the Federal Single Audit Act, as follows: A. Maintenance of Records: The DISTRICT shall provide the necessary information to the CITY as set forth in Exhibit "C". The CITY shall maintain all financial/non-financial records through: (1) (2) (3) (4) (5) Identification of the state or federal awarding agency, as applicable Project identification information included in the Catalog of State Financial Assistance (CSFA) or the Catalog of Federal Financial Assistance (CFDA), as applicable Audit and accountability requirements for state projects as stated in the Single Audit Act and applicable rules of the Executive Office of Governor, rules of the Chief Financial Officer and rules of the Auditor General and the State Projects Compliance Supplement Audit/accountability requirements for federal projects as imposed by federal laws and regulations Submission of the applicable single audit report to the DISTRICT, as completed per fiscal year B. Examination of Records: The DISTRICT or designated agent, the state awarding agency, the state's Chief Financial Officer and the state's Auditor General and/or federal awarding agency shall have the right to examine the CITY's financial and non -financial records to the extent necessary to monitor the CITY's Agreement No. OT050648 - Page 3 of 5 use of state or federal financial assistance and to determine whether timely and appropriate corrective actions have been taken with respect to audit findings and recommendations which may include onsite visits and limited scope audits. 18. All notices or other communication regarding this AGREEMENT shall be in writing and forwarded to the attention of the following individuals: South Florida Water Management District Attn: Evan Skomick, Project Manager Telephone No. (305) 377-7274 ext. 7290 Attn: Rupert Giroux, Contract Specialist Telephone No. (561) 682-2532 Address: P.O. Box 24680 3301 Gun Club Road West PalmBeach, FL 33416-4680 City of Miami Attn: Dianne Johnson, Project Manager Telephone No. (305) 416-1285 Address: Grants Section 444 SW 2n° Avenue 5th Floor Miami, FL 33130 19. CITY recognizes that any representations, statements or negotiations made by DISTRICT staff do not suffice to legally bind DISTRICT in a contractual relationship unless they have been reduced to writing and signed by an authorized DISTRICT representative. This AGREEMENT shall inure to the benefit of and shall be binding upon the parties, their respective assigns, and successors in interest. 20. This AGREEMENT may be amended, extended or renewed only with the written approval of the parties. The DISTRICT shall be responsible for initiating any amendments to this AGREEMENT, if required. 21. This AGREEMENT, and any work performed hereunder, is subject to the Laws of the State of Florida. Nothing in this AGREEMENT will bind any of the parties to perform beyond their respective authority, nor does this AGREEMENT alter the legal rights and remedies which the respective parties would otherwise have, under law or at equity. 22. Should any term or provision of this AGREEMENT be held, to any extent, invalid or unenforceable, as against any person, CITY or circumstance during the term hereof, by force of any statute, law, or ruling of any forum of competent jurisdiction, such invalidity shall not affect any other term or provision of this AGREEMENT, to the extent that the AGREEMENT shall remain operable, enforceable and in full force and effect to the extent permitted by law. 23. Failures or waivers to insist on strict performance of any covenant, condition, or provision of thin AGREEMENT by the parties shall not be deemed a waiver of any of its rights or remedies, nor shall it relieve the other party from performing any subsequent obligations strictly in accordance with the terms of this AGREEMENT. No waiver shall be effective unless in writing and signed by the party against whom enforcement is sought. Such waiver shall be limited to provisions of this AGREEMENT specifically referred to therein and shall not be deemed a waiver of any other provision. No waiver shall constitute a continuing waiver unless the writing states otherwise. 24. Any dispute arising under this AGREEMENT which cannot be readily resolved shall be submitted jointly to the signatories of this AGREEMENT with each party agreeing to seek in good faith to resolve the issue through negotiation or other forms of non -binding alternative dispute resolution mutually acceptable to the parties. A joint decision of the signatories, or their designees, shall be the disposition of such dispute. 25. This AGREEMENT states the entire understanding and agreement between the parties and supersedes any and all written or oral representations, statements, negotiations, or agreements previously existing between the parties with respect to the subject matter of this AGREEMENT. 26. Any inconsistency in this AGREEMENT shall be resolved by giving precedence in the following order: (a) Terms and Conditions outlined in preceding paragraphs 1 — 24 (b) Exhibit "A" Statement of Work Agreement No. OT050648 - Page 4 of 5 (c) all other exhibits, attachments and documents specifically incorporated herein by reference IN WITNESS WHEREOF, the parties or their duly authorized representatives hereby execute this AGREEMENT on the date first written above. SFWMD procureme approved Rv Date: ATTEST: lt,.\%5`• Priscilla A. Thompson City Clerk SOUTH FLORIDA WATER MANAGEMENT DISTRICT BY ITS GOVERNING BOARD By: Frank Hayden, Director of Procurement CITY OF MIAMI By: Title: City Manager Approved as to Legal Form and Correctness: Approved as to Insurance Requirements Jorge L. Fernandez Dania F. Carrillo City Attorney Administrator, Risk Management Agreement No. OT050648 - Page 5 of 5