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HomeMy Public PortalAbout1994-41 South Florida Water Management District AgreementRESOLUTION NO. 94-41 A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE, FLORIDA; AUTHORIZING THE VILLAGE MANAGER TO ENTER INTO A COOPERATIVE AGREEMENT, ON BEHALF OF THE VILLAGE, WITH THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT, FOR STORMWATER RETROFIT PROJECT (CONTRACT NO. C-6109); PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village submitted a proposal in response to the South Florida Water Management District's solicitation for stormwater management cooperative cost -share agreements; and WHEREAS, the Governing Body of the South Florida Water Management District, at its October 1994 meeting, authorized entering into such an agreement with the Village; NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF KEY BISCAYNE AS FOLLOWS: Section 1. That the Village Manager is hereby authorized to enter into a cooperative agreement, attached as Exhibit A, on behalf of the Village, with the South Florida Water Management District, for a stormwater retrofit project (Contract No. C-6109). Section 2. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 15th day of November , 1994. 3 ( 07‘..-. R JOHN F. FESTA ATTEST: U' '1(1)1261117 1�dG G IDO H. UANZO, JR., VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: RICItARD J. WEISS, VILLAGE ATTORNEY EXHIBIT A ORIGINAL C-6109 COOPERATIVE AGREEMENT BETWEEN THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT AND THE VILLAGE OF KEY BISCAYNE, FLORIDA This AGREEMENT is entered into on , 1994, between "the Parties," the South Florida Water Management District, a public corporation of the State of Florida ("the DISTRICT"), and the Village of Key Biscayne, Florida, a political subdivision of the State of Florida ("the VILLAGE"). WITNESSETH THAT: 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 funding to assist the VILLAGE with a stormwater outfall system retrofit; and WHEREAS, the DISTRICT has funds in its current fiscal year budget (1994-1995), which are available for its funding of this AGREEMENT; and WHEREAS, the VILLAGE 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 VILLAGE has submitted a proposal in response to the DISTRICT'S solicitation for stormwater management cooperative cost -share agreements by Request for Proposals opened on May 11, 1994; and WHEREAS, the Governing Board of the DISTRICT, at its October 1994 meeting, has authorized entering into -this AGREEMENT with the VILLAGE; NOW THEREFORE, the DISTRICT and the VILLAGE, in consideration of the mutual benefits flowing from each to the other, do hereby agree as follows: Contract No. C-6109 - Page 1 of 9. ARTICLE 1 - STATEMENT OF WORK 1.1 The VILLAGE shall, to the satisfaction of the DISTRICT, fully and timely perform all work items described in the "Statement of Work," attached hereto as Exhibit "A," and made a part of this AGREEMENT. 1.2 As part of the services to be provided by the VILLAGE under this AGREEMENT, the VILLAGE shall substantiate, in whatever forum reasonably requested by the DISTRICT, such as, the methodology, scientific theories, data, reference materials, research notes, any work completed by assistants, models, concepts, analytical theories, computer programs and conclusions utilized as the basis for the final work product required by this AGREEMENT. These additional services are subject to AGREEMENT amendment for fair consideration. This paragraph shall survive the expiration or termination of this AGREEMENT. ARTICLE 2 - TERM OF THE AGREEMENT 2.1 The period of performance of this AGREEMENT shall commence on the date of execution and terminate on September 30, 1995. 2.2 The parties agree that time is of the essence in the performance of each and every obligation under this AGREEMENT. ARTICLE 3 - COMPENSATION/CONSIDERATION 3.1 As consideration for providing the services required by this AGREEMENT, the DISTRICT shall pay the VILLAGE an amount not to exceed One Hundred Sixty Six Thousand Six Hundred Eighty -One Dollars and No Cents ($166,681.00), as specified in Exhibit "A." Such amount includes travel and other expenses which the VILLAGE may or may not incur and therefore no additional consideration shall be authorized. The total amount of consideration for this AGREEMENT shall not exceed One Hundred Sixty Six Thousand Six Hundred Eighty -One Dollars and No Cents ($166,681.00). 3.2 The VILLAGE anticipates a total project cost of Four Hundred Sixteen Thousand Seven Hundred Three Dollars and No Cents ($416,703.00), with the balance of cost sharing funds to be obtained from the VII.,LAGE. In the event such funding becomes unavailable, that shall be good and sufficient cause for the DISTRICT to terminate the AGREEMENT pursuant to Paragraph 7.2 below. Contract No. C-6109 - Page 2 of 9 ARTICLE 4 - INVOICING AND PAYMENT 4.1 The VILLAGE'S invoice shall reference the DISTRICT'S Contract Number C-6109 and shall be sent to the following address: South Florida Water Management District Attn: Division of Procurement and Contract Administration P.O. Box 24680 3301 Gun Club Road West Palm Beach, FL 33416-4680 The VILLAGE should not submit the invoice to any other address at the DISTRICT. 4.2 The VILLAGE shall submit one invoice, upon completion of all required deliverables, pursuant to the schedule outlined in the Statement of Work, attached as Exhibit "A". 4.3 The DISTRICT shall pay the full amount of the invoice within thirty (30) days of receipt and acceptance, provided the VILLAGE has performed the work according to the terms and conditions of this AGREEMENT. However, failure by the VILLAGE to follow the foregoing instructions shall result in an unavoidable delay of payment by the DISTRICT. ARTICLE 5 - PROJECT MANAGEMENT/NOTICE 5.1 The Project Manager for the DISTRICT is Tom Singleton, at 1550 Madruga Avenue, Suite 412, Coral Gables, Florida 33146, telephone (305) 669-6944. The Project Manager for the VILLAGE is Sam Kissinger, at 85 West McIntyre Street, Key Biscayne, Florida 33149, telephone (305) 365-5514. The parties shall direct all matters arising in connection with the performance of this AGREEMENT, other than invoices and notices, to the attention of the Project Managers for attempted resolution or action. The Project Managers shall be responsible for overall coordination and oversight relating to the performance of this AGREEMENT. 5.2 All notices, demands, or other communications to the VILLAGE under this AGREEMENT shall be in writing and shall be deemed received if sent by certified mail, return receipt requested, to: The Village of Key Biscayne 85 West McIntyre Street Key Biscayne, FL 33149 Contract No. C-6109 - Page 3 of 9 All notices to the DISTRICT under this AGREEMENT shall be in writing and sent by certified mail to: South Florida Water Management District Attn: Division of Procurement and Contract Administration 3301 Gun Club Road P. 0. Box 24680 West Palm Beach, FL 33416-4680 The VILLAGE shall also provide a copy of all notices to the DISTRICT'S Project Manager. All notices required by this AGREEMENT shall be considered delivered upon receipt. Should either party change its address, written notice of such new address shall promptly be sent to the other party. All correspondence to the DISTRICT under this AGREEMENT shall reference the DISTRICT'S Contract Number C-6109. ARTICLE 6 - INDEMNIFICATION 6.1 The VILLAGE assumes any and all risks of personal injury, bodily injury and property damage, including expenses, costs and attorney fees, attributable to the negligent acts or omissions of the VILLAGE and the officers, employees, servants, and agents thereof. The VILLAGE, as a state agency, warrants and represents that it is self -funded for liability insurance, or has liability insurance, both public and property, with such protection being applicable to the VILLAGE officers, employees, servants and agents while acting within the scope of their employment with the VILLAGE. The VILLAGE 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. ARTICLE 7 - 'TERMINATION/REMEDIES 7.1 If either party fails to fulfill its obligations under this AGREEMENT in a timely and proper manner, the other party shall have the right to terminate this AGREEMENT by giving written notice of any deficiency. The party in default shall then have ten (10) calendar days from receipt of notice to correct the deficiency. If the defaulting party fails to correct the deficiency within this time, this AGREEMENT shall terminate at the expiration of the ten (10) day time period. Contract No. C-6109 - Page 4 of 9 7.2 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, the DISTRICT shall compensate the VILLAGE for all authorized work performed through the termination date. The DISTRICT may withhold all payments to the VILLAGE for such work until such time as the DISTRICT determines the exact amount due to the VILLAGE. 7.3 If either party initiates legal action, including appeals, to enforce this AGREEMENT, the prevailing party shall be entitled to recover a reasonable attorney's fee, based upon the fair market value of the services provided. 7.4 In the event a dispute arises which the project managers cannot resolve between themselves, the parties shall have the option to submit to nonbinding mediation. The mediator or mediators shall be impartial, shall be selected by the parties, and the cost of the mediation shall be borne equally by the parties. The mediation process shall be confidential to the extent permitted by law. ARTICLE 8 - RECORDS RETENTION/OWNERSHIP 8.1 The VILLAGE shall maintain records and the DISTRICT shall have inspection and audit rights as follows: A. Maintenance of Records: The VILLAGE 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 years from completing performance and receiving final payment under this AGREEMENT. B. Examination of Records: The DISTRICT or its 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 years from the date of final payment under this AGREEMENT and upon reasonable notice, time and place. Records which relate to any litigation, appeals or settlements of claims arising from performance under this AGREEMENT shall be made available until a final disposition has been made of such litigation, appeals or claims. ARTICLE 9 - STANDARDS OF COMPLIANCE 9.1 The VILLAGE, its employees, subcontractors or assigns, shall comply with all Contract No. C-6109 - Page 5 of 9 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 VILLAGE, upon request, as to any such laws of which it has present knowledge. 9.2 The laws of the State of Florida shall govern all aspects of this AGREEMENT. In the event it is necessary for either party to initiate legal action regarding this AGREEMENT, venue shall be in the Fifteenth Judicial Circuit for claims under state law and in the Southern District of Florida for any claims which are justiciable in federal court. 9.3 The VILLAGE shall allow public access to all project documents and materials in accordance with the provisions of Chapter 119, Florida Statutes. Should the VILLAGE 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 VILLAGE. 9.4 Pursuant to Section 216.347, F. S. , the VILLAGE is prohibited from the expenditure of any funds under this AGREEMENT to lobby the Legislature, the judicial branch, or another state agency. 9.5 The VILLAGE shall obtain, at its sole expense, all necessary licenses, authorizations and permits from the appropriate private party or federal, state, municipal or local agency, and other governmental approvals, prior to commencing performance of this AGREEMENT. 9.6 The VILLAGE hereby assures 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. The VILLAGE shall take all measures necessary to effectuate these assurances. ARTICLE 10 - RELATIONSHIP BETWEEN THE PARTIES 10.1 The VILLAGE is an independent contractor and is not an employee or agent of the DISTRICT. Nothing in this AGREEMENT shall be interpreted to establish any relationship other than that of an independent contractor, between the DISTRICT and the VILLAGE, its employees, agents, subcontractors, or assigns, during or after the performance of this AGREEMENT. The VILLAGE is free to provide similar services for others. 10.2 The VILLAGE shall not assign, delegate, or otherwise transfer its rights and obligations as set forth in this AGREEMENT without the prior written consent of Contract No. C-6109 - Page 6 of 9 the DISTRICT. Any attempted assignment in violation of this provision shall be void. ARTICLE 11 - GENERAL PROVISIONS 11.1 Notwithstanding any provisions of this AGREEMENT to the contrary, the parties shall not be held liable for any failure or delay in the performance of this AGREEMENT that arises from fires, floods, strikes, embargoes, acts of the public enemy, unusually severe weather, outbreak of war, restraint of Government, riots, civil commotion, force majeure, act of God, or for any other cause of the same character which is unavoidable through the exercise of due care and beyond the control of the parties. Failure to perform shall be excused during the continuance of such circumstances, but this AGREEMENT shall otherwise remain in effect. This provision shall not apply if the "Statement of Work" of this AGREEMENT specifies that performance by VILLAGE is specifically required during the occurrence of any of the events herein mentioned. 11.2 The documents listed below, by this reference, shall become a part of this AGREEMENT as though physically attached: DISTRICT'S Request for Proposals No. C-6100 VILLAGE'S Proposal dated May 6, 1994. 11.3 In the event any provisions of this AGREEMENT shall conflict, or appear to conflict, the AGREEMENT, including all exhibits, attachments and all documents specifically incorporated by reference, shall be interpreted as a whole to resolve any inconsistency. 11.4 Failures or waivers to insist on strict performance of any covenant, condition, or provision of this AGREEMENT by the parties, their successors and assigns 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. 11.5 Should any term or provision of this AGREEMENT be held, to any extent, invalid or unenforceable, as against any person, entity 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. Contract No. C-6109 - Page 7 of 9 11.6 This AGREEMENT may be amended only with the written approval of the parties hereto. 11.7 Prior to engaging in any discussions with the news media pertaining to this AGREEMENT, the VILLAGE shall notify the DISTRICT'S Office of Government and Public Affairs. This includes news releases, media requests for interviews, feature articles, fact sheets, or promotional materials. 11.8 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. The VILLAGE recognizes that any representations, statements or negotiations made by DISTRICT staff do not suffice to legally bind the 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. Contract No. C-6109 - Page 8 of 9 IN WITNESS WHEREOF, the parties or their duly authorized representatives hereby execute this AGREEMENT on the date first written above. LEGAL FORM APPROVED SFWMD OFFICE OF COUNSEL iiii4 ,,,,,,__67.„7(17,40" DATE: /0 ---20 --fr SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ITS GOVERNING BOARD By: Deputy Executive Director Attest: THE VILLAGE OF KEY BISCAYNE, FLORIDA By: Title: Contract No. C-6109 - Page 9 of 9 C-6109 Exhibit "A" Statement of Work Village of Key Biscayne Stormwater Retrofit INTRODUCTION During average rainfall events, the residential area served by Island Drive, Cape Florida Drive and Mariner Drive (Drainage Basins 4 & 5) is subject to severe flooding and access to the area by car is not possible. This condition places a major burden on approximately 600 residents (15 % of the village population) who travel these streets to get to and from their homes and inhibits police, fire, and rescue operations. To address these flooding conditions and similar conditions within the local community, the Village of Key Biscayne created a Local Stormwater Utility, and adopted a Stormwater Management Master Plan, dated September, 1993. The Village has adopted an annual maintenance plan and budget for existing and future stormwater facilities. The plan provides for semiannual cleaning of catch basins, biannual cleaning of drainage wells and the cleaning of grass swales to insure maximum infiltration. A state certified engineer will perform periodic inspections and site evaluations to insure that the system is properly operated and maintained. OBJECTIVES Retrofit an existing stormwater outfall to Biscayne Bay to provide water quality treatment and natural resource protection. SCOPE OF WORK The "Basins 4 & 5 Project" involves the construction of an interconnected stormwater management system for the Island Drive, Cape Florida Drive and Mariner Drive residential area (approximately 30 acres), that will improve the flooding condition and provide water quality treatment. The District will pay 40 % of the actual cost of the improvements up to a maximum of $166,681.00. WORK BREAKDOWN STRUCTURE Task 1.1 Complete Final Design of the proposed improvements Task 1.2 Obtain approval of all regulatory agencies having jurisdiction over the project Task 1.3 Obtain competitive bids for the proposed improvements Page 1 of 2, Exhibit "A" - C-6109 Task 1.4 Construct the proposed improvements and provide final certification STUDY AREA Village of Key Biscayne, Florida DELIVERABLES No Task Description Due Date 1 1.1 Final Drawings and Specifications (Key Biscayne to fund) 10/31/94 2 1.2 Final Permits (Key Biscayne to fund) 1/31/95 3 1.3 Construction Contract Awarded (Key Biscayne to fund) 3/31/95 4 1.4 Improvements completed with final certification and three (3) copies of "as -built" plans (District and Key Biscayne funding) 9/30/95 PAYMENT SCHEDULE Full payment to the Village of Key Biscayne shall be made on a reimbursement basis upon 100 % completion of the project (i.e. Task 1.4) . The payment by the District shall not exceed the lesser of 40% of the actual contractual costs or $166,681.00. Together with the invoice, Key Biscayne shall supply the District with copies of all cancelled checks showing the total payment made to its subcontractor. The Village will also supply the District with all engineer reports associated with inspections to verify satisfactory completion of construction. CONTINGENCIES In the event that inclement weather or a natural disaster delays activities, a request for a time extension shall be supplied by the Village to the District which indicates the causes, tasks delayed, estimated time to complete and any recommendations for other modifications. Page 2 of 2, Exhibit "A" - C-6109