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HomeMy Public PortalAbout2001 Contract number 01-DR-14-11-23-02-008STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS "Helping Floridians create safe, vibrant, sustainable communities" JEB BUSH Governor May 4, 2001 Mr. C. Samuel Kissinger Village Manager Village of Key Biscayne 85 West McIntyre Street Key Biscayne, Florida 33149 Re: Contract Number 01 -DR -14-11-23-02-008 Dear Mr. Kissinger: STEVEN M. SEIBERT Secretary Enclosed is an original executed contract between the Department of Community Affairs and the Village of Key Biscayne which covers the funding you will receive under the Local Government and Comprehensive Planning Program during the current fiscal year. Please note that this contract expires on November 15, 2001. All work products specified in this contract must be received by the Department of Community Affairs by the above date for release of the funds under this contract. It is very important that these items be received by this date. If you intend to subcontract the work authorized by this program, please note Section 13 on page 11 of this contract. Your contract with the subcontractor must bind the subcontractor by the terms and conditions of this contract with the Department and must hold the Department and the grant recipient harmless against all claims arising out of the subcontractor's performance. Additionally, you must send the Department a copy of the executed subcontract before any work products under this contract are submitted to the Department. 2555 SHUMARD OAK BOULEVARD • TALLAHASSEE, FLORIDA 32399-2100 Phone: (850) 488-8466/Suncom 278-8466 FAX• (850) 921-0781/Suncom 291-0781 Internet address: http://www.dca.state.fl.us FLORIDA KEYS GREEN SWAMP Area of Critical State Cnnrern Field (lffire C L 1141 Mr. C. Samuel Kissinger May 4, 2001 Page Two If you have any questions, please contact me at (850) 922-1752 or facsimile number (850) 488-3309. JA62-d Senior Management Analyst I Enclosures Contract Number: DI-DQ-Iij-l1 ,73-Cb3-00g AGREEMENT THIS AGREEMENT is entered into by and between the State of Florida, Department of Community Affairs, with headquarters in Tallahassee, Florida (hereinafter referred to as the "Department"), and the Village of Key Biscayne, (hereinafter referred to as the "Recipient"). THIS AGREEMENT IS ENTERED INTO BASED ON THE FOLLOWING FACTS: A. WHEREAS, the Recipient represents that it is fully qualified, possesses the requisite skills, knowledge, qualifications and experience to provide the services identified herein, and does offer to perform such services, and B. WHEREAS, the Department has a need for such services and does hereby accept the offer of the Recipient upon the terms and conditions hereinafter set forth, and C. WHEREAS, the Department has authority pursuant to Florida law to disburse the funds under this Agreement. NOW, THEREFORE, the Department and the Recipient do mutually agree as follows: (1) SCOPE OF WORK. The Recipient shall fully perform the obligations in accordance with the Budget and Scope of Work, Attachment A of this Agreement. (2) INCORPORATION OF LAWS, RULES, REGULATIONS AND POLICIES. Both the Recipient and the Department shall be governed by applicable State and Federal laws, rules and regulations, including but not limited to those identified in Attachment B. (3) PERIOD OF AGREEMENT. This Agreement shall begin upon execution by both parties and shall end November 15, 2001, unless terminated earlier in accordance with the provisions of paragraph (9) of this Agreement. (4) MODIFICATION OF CONTRACT; REPAYMENTS Either party may request modification of the provisions of this Agreement. Changes which are mutually agreed upon shall be valid only when reduced to writing, duly signed by each of the parties hereto, and attached to the original of this Agreement. All refunds or repayments to be made to the Department under this Agreement are to be made payable to the order of "Department of Community Affairs", and mailed directly to the Department at the following address: Department of Community Affairs Cashier Finance and Accounting 2555 Shumard Oak Boulevard Tallahassee FL 32399-2100 (5) RECORDKEEPING (a) If applicable, Recipient's performance under this Agreement shall be subject to the federal "Common Rule: Uniform Administrative Requirements for State and Local Governments" (53 Federal Register 8034) or OMB Circular No. A-110, "Grants and Agreements with Institutions of High Education, Hospitals, and Other Nonprofit Organizations," and either OMB Circular No. A-87, "Cost Principles for State and Local Governments," OMB Circular No. A-21, "Cost Principles for Educational Institutions," or OMB Circular No. A-122, "Cost Principles for Nonprofit Organizations." If this Agreement is made with a commercial (for-profit) organization on a cost -reimbursement basis, the Recipient shall be subject to Federal Acquisition Regulations 31.2 and 931.2. (b) All original records pertinent to this Agreement shall be retained by the Recipient for three years following the date of termination of this Agreement or of submission of the final close-out report, whichever is later, with the following exceptions: 1. If any litigation, claim or audit is started before the expiration of the three year period and extends beyond the three year period, the records will be maintained until all litigation, claims or audit findings involving the records have been resolved. 2 2. Records for the disposition of non -expendable personal property valued at $5,000 or more at the time of acquisition shall be retained for three years after final disposition. 3. Records relating to real property acquisition shall be retained for three years after closing of title. (c) All records, including supporting documentation of all program costs, shall be sufficient to determine compliance with the requirements and objectives of the Budget and Scope of Work - Attachment A - and all other applicable laws and regulations. (d) The Recipient, its employees or agents, including all subcontractors or consultants to be paid from funds provided under this Agreement, shall allow access to its records at reasonable times to the Department, its employees, and agents. "Reasonable" shall be construed according to the circumstances but ordinarily shall mean during normal business hours of 8:00 a.m to 5:00 p.m., local time, on Monday through Friday. "Agents" shall include, but not be limited to, auditors retained by the Department. (e) Any additional terms and conditions pertaining to recordkeeping are set forth in Attachment C and all terms and conditions pertaining to property management and procurement under this Agreement are set forth in Attachment H. (6) REPORTS (a) At a minimum, the Recipient shall provide the Department with quarterly reports, and with a close-out report. (b) Quarterly reports are due to be received by the Department no later than 30 days after the end of each quarter of the program year and shall continue to be submitted each quarter until submission of the administrative close-out report. The ending dates for each quarter of the program year are March 30, June 30, September 30 and December 31. (c) The close-out report is due 60 days after termination of this Agreement or upon completion of the activities contained in this Agreement. (d) If all required reports and copies, prescribed above, are not sent to the Department or are not completed in a manner acceptable to the Department, the Department may withhold further 3 payments until they are completed or may take such other action as set forth in paragraph (9). The Department may terminate the Agreement with a Recipient if reports are not received within 30 days after written notice by the Department. "Acceptable to the Department" means that the work product was completed in accordance with generally accepted principles and is consistent with the Budget and Scope of Work. (e) Upon reasonable notice, the Recipient shall provide such additional program updates or information as may be required by the Department. (f) The Recipient shall provide additional reports and information as identified in Attachment D. (7) MONITORING. The Recipient shall constantly monitor its performance under this Agreement to ensure that time schedules are being met, the Budget and Scope of Work is being accomplished within specified time periods, and other performance goals are being achieved. Such review shall be made for each function or activity set forth in Attachment A to this Agreement. (8) LIABILITY. (a) Except as otherwise provided in subparagraph (b) below, the Recipient shall be solely responsible to parties with whom it shall deal in carrying out the terms of this agreement, and shall save the Department harmless against all claims of whatever nature by third parties arising out of the performance of work under this agreement. For purposes of this agreement, Recipient agrees that it is not an employee or agent of the Department, but is an independent contractor. (b) Any Recipient who is a state agency or subdivision, as defined in Section 768.28, Fla. Stat.. agrees to be fully responsible for its negligent acts or omissions or tortious acts which result in claims or suits against the Department, and agrees to be liable for any damages proximately caused by said acts or omissions. Nothing herein is intended to serve as a waiver of sovereign immunity by any Recipient to which sovereign immunity applies. Nothing herein shall be construed as consent by a state agency or subdivision of the State of Florida to be sued by third parties in any matter arising out of any contract. 4 (9) DEFAULT; REMEDIES; TERMINATION. (a) If the necessary funds are not available to fund this agreement as a result of action by the Legislature, the Office of the Comptroller or the Office of Management and Budgeting, or if any of the following events occur ("Events of Default"), all obligations on the part of the Department to make any further payment of funds hereunder shall, if the Department so elects, terminate and the Department may, at its option, exercise any of its remedies set forth herein, but the Department may make any payments or parts of payments after the happening of any Events of Default without thereby waiving the right to exercise such remedies, and without becoming liable to make any further payment: 1. If any warranty or representation made by the Recipient in this Agreement or any previous Agreement with the Department shall at any time be false or misleading in any respect, or if the Recipient shall fail to keep, observe or perform any of the terms or covenants contained in this Agreement or any previous agreement with the Department and has not cured such in timely fashion, or is unable or unwilling to meet its obligations thereunder; 2. If any material adverse change shall occur in the financial condition of the Recipient at any time during the term of this Agreement from the financial condition revealed in any reports filed or to be filed with the Department, and the Recipient fails to cure said material adverse change within thirty (30) days from the time the date written notice is sent by the Department. 3. If any reports required by this Agreement have not been submitted to the Department or have been submitted with incorrect, incomplete or insufficient information; 4. If the Recipient has failed to perform and complete in timely fashion any of the services required under the Budget and Scope of Work attached hereto as Attachment A. (b) Upon the happening of an Event of Default, then the Department may, at its option, upon written notice to the Recipient and upon the Recipient's failure to timely cure, exercise any one or more of the following remedies, either concurrently or consecutively, and the pursuit of any one of the following remedies shall not preclude the Department from pursuing any other remedies contained herein or otherwise provided at law or in equity: 5 1. Terminate this Agreement, provided that the Recipient is given at least thirty (30) days prior written notice of such termination. The notice shall be effective when placed in the United States mail, first class mail, postage prepaid, by registered or certified mail -return receipt requested, to the address set forth in paragraph (10) herein; 2. Commence an appropriate legal or equitable action to enforce performance of this Agreement; 3. Withhold or suspend payment of all or any part of a request for payment; 4. Exercise any corrective or remedial actions, to include but not be limited to, requesting additional information from the Recipient to determine the reasons for or the extent of non- compliance or lack of performance, issuing a written warning to advise that more serious measures may be taken if the situation is not corrected, advising the Recipient to suspend, discontinue or refrain from incurring costs for any activities in question or requiring the Recipient to reimburse the Department for the amount of costs incurred for any items determined to be ineligible; 5. Exercise any other rights or remedies which may be otherwise available under law; (c) The Department may terminate this Agreement for cause upon such written notice as is reasonable under the circumstances. Cause shall include, but not be limited to, misuse of funds; fraud; lack of compliance with applicable rules, laws and regulations; failure to perform in a timely manner; and refusal by the Recipient to permit public access to any document, paper, letter, or other material subject to disclosure under Chapter 119, Fla. Stat., as amended. (d) Suspension or termination constitutes final agency action under Chapter 120, Fla_ Stat., as amended. Notification of suspension or termination shall include notice of administrative hearing rights and time frames. (e) The Recipient shall return funds to the Department if found in non-compliance with laws, rules, regulations governing the use of the funds or this Agreement. (f) This Agreement may be terminated by the written mutual consent of the parties. 6 (g) Notwithstanding the above, the Recipient shall not be relieved of liability to the Department by virtue of any breach of Agreement by the Recipient. The Department may, to the extent authorized by law, withhold any payments to the Recipient for purpose of set-off until such time as the exact amount of damages due the Department from the Recipient is determined. (10) NOTICE AND CONTACT. (a) All notices provided under or pursuant to this Agreement shall be in writing, either by hand delivery, or first class, certified mail, return receipt requested, to the representative identified below at the address set forth below and said notification attached to the original of this Agreement. (b) The name and address of the Department contract manager for this Agreement is: Ms. Beth Frost, Senior Management Analyst I Division of Community Planning Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 (850) 922-1752 Fax: (850) 488-3309 (c) The name and address of the Representative of the Recipient responsible for the administration of this Agreement is: e. Samuel-Nss;nler Villagc Manager V;lloe of fey Biscayne X McIrliwe 54• d� B i sceidn , FL 33i'{-1 (d) In the event that different representatives or addresses are designated by either party after execution of this Agreement, notice of the name, title and address of the new representative will be rendered as provided in (10)(a) above. (11) OTHER PROVISIONS. (a) The validity of this Agreement is subject to the truth and accuracy of all the information, representations, and materials submitted or provided by the Recipient in this Agreement, in any subsequent submission or response to Department request, or in any submission or response to fulfill the requirements of this Agreement, and such information, representations, and materials are incorporated by reference. The lack of accuracy thereof or any material changes shall, at the option of 7 the Department and with thirty (30) days written notice to the Recipient, cause the termination of this Agreement and the release of the Department from all its obligations to the Recipient. (b) This Agreement shall be construed under the laws of the State of Florida, and venue for any actions arising out of this Agreement shall lie in Leon County. If any provision hereof is in conflict with any applicable statute or rule, or is otherwise unenforceable, then such provision shall be deemed null and void to the extent of such conflict, and shall be deemed severable, but shall not invalidate any other provision of this Agreement. (c) No waiver by the Department of any right or remedy granted hereunder or failure to insist on strict performance by the Recipient shall affect or extend or act as a waiver of any other right or remedy of the Department hereunder, or affect the subsequent exercise of the same right or remedy by the Department for any further or subsequent default by the Recipient. Any power of approval or disapproval granted to the Department under the terms of this Agreement shall survive the terms and life of this Agreement as a whole. (d) The Agreement may be executed in any number of counterparts, any one of which may be taken as an original. (e) The Recipient agrees to comply with the Americans With Disabilities Act (Public Law 101-336, 42 U.S.C. Section 12101 et seq.), if applicable, which prohibits discrimination by public and private entities on the basis of disability in the areas of employment, public accommodations, transportation, State and local government services, and in telecommunications. (f) A person or affiliate who has been placed on the convicted vendor list or on the discriminatory vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity, and may not transact business with any public entity in excess of Category Two for a period of 36 months from the date of being placed on the convicted vendor or discriminatory vendor list. 8 (12) AUDIT REQUIREMENTS. (a) The Recipient agrees to maintain financial procedures and support documents, in accordance with generally accepted accounting principles, to account for the receipt and expenditure of funds under this Agreement. (b) These records shall be available at all reasonable times for inspection, review, or audit by state personnel and other personnel duly authorized by the Department. "Reasonable" shall be construed according to circumstances, but ordinarily shall mean normal business hours of 8:00 a.m. to 5:00 p.m., local time, Monday through Friday. (c) The Recipient shall also provide the Department with the records, reports or financial statements upon request for the purposes of auditing and monitoring the funds awarded under this Agreement. (d) In the event that the Recipient expends a total amount of State awards (i.e., State financial assistance provided to recipient to carry out a State project) from all state sources equal to or in excess of $300,000 in any fiscal year of such Recipient, the Recipient must have a State single or project -specific audit for such fiscal year in accordance with Section 216.3491, Florida Statutes; applicable rules of the Executive Office of the Governor and the Comptroller, and Chapter 10.600, Rules of the Auditor General. In determining the State awards expended in its fiscal year, the Recipient shall consider all sources of State awards, including State funds received from the Department, except that State awards received by a nonstate entity for Federal program matching requirements shall be excluded from consideration. The funding for this Agreement was received by the Department as a Grant and Aid appropriation. 1. The annual financial audit report shall include all management letters and the Recipient's response to all findings, including corrective actions to be taken. 2 The annual financial audit report shall include a schedule of financial assistance specifically identifying all Agreement and other revenue by sponsoring agency and Agreement number. 9 3. The complete financial audit report, including all items specified in (12)(d) 1 and 2 above, shall be sent directly to: Department of Community Affairs Office of Audit Services 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 and State of Florida Auditor General Attn: Ted J Sauerbeck Room 574, Claude Pepper Building 111 West Madison Street Tallahassee, Florida 32302-1450 5. In connection with the audit requirements addressed in (d) above, the Recipient shall ensure that the audit complies with the requirements of Section 216.3491(7), Florida Statutes. This includes submission of a reporting package as defined by Section 216.3491(2)(d), Florida Statutes, and Chapter 10.600, Rules of the Auditor General. 6. If the Recipient expends less than $300,000 in State awards in its fiscal year, an audit conducted in accordance with the provisions of Section 216.3491, Florida Statutes, is not required. In the event that the Recipient expends less than $300,000 in State awards in its fiscal year and elects to have an audit conducted in accordance with the provisions of Section 216.3491, Florida Statutes, the cost of the audit must be paid from non -State funds (i.e., the cost of such an audit must be paid from recipient funds obtained from other than State entities). (e) In the event the audit shows that the entire funds disbursed hereunder, or any portion thereof, were not spent in accordance with the conditions of this Agreement, the Recipient shall be held liable for reimbursement to the Department of all funds not spent in accordance with these applicable regulations and Agreement provisions within thirty (30) days after the Department has notified the Recipient of such non-compliance. (f) The Recipient shall retain all financial records, supporting documents, statistical records, and any other documents pertinent to this contract for a period of three years after the date of submission of the final expenditures report. However, if litigation or an audit has been initiated prior to 10 the expiration of the three-year period, the records shall be retained until the litigation or audit findings have been resolved. (g) The Recipient shall have all audits completed by an independent certified public accountant (IPA) who shall either be a certified public accountant or a public accountant licensed under Chapter 473, Fla. Stat. The IPA shall state that the audit complied with the applicable provisions noted above. (13) SUBCONTRACTS. (a) If the Recipient subcontracts any or all of the work required under this Agreement, a copy of the executed subcontract must be forwarded to the Department within thirty (30) days after execution of the subcontract. The Recipient agrees to include in the subcontract that (i) the subcontractor is bound by all applicable state and federal laws and regulations, and (ii) the subcontractor shall hold the Department and Recipient harmless against all claims of whatever nature arising out of the subcontractor's performance of work under this Agreement, to the extent allowed and required by law. (14) TERMS AND CONDITIONS. The Agreement contains all the terms and conditions agreed upon by the parties. (15) ATTACHMENTS. (a) All attachments to this Agreement are incorporated as if set out fully herein. (b) In the event of any inconsistencies or conflict between the language of this Agreement and the attachments hereto, the language of such attachments shall be controlling, but only to the extent of such conflict or inconsistency. (c) This Agreement has the following attachments: Attachment A: Scope of Work and Schedule of Deliverables Attachment E: Federal Lobbying Prohibitions (16) FUNDING/CONSIDERATION This is a fixed fee agreement. As consideration for performance of work rendered under this Agreement, the Department agrees to pay a fixed fee of up to $40,000.00. Payment will be made in accordance with the provisions of Attachment A (Scope of Work and Schedule of Deliverables). 11 (17) STANDARD CONDITIONS. The Recipient agrees to be bound by the following standard conditions: (a) The State of Florida's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature, and subject to any modification in accordance with Chapter 216, Fla. Stat. or the Florida Constitution. (b) If otherwise allowed under this Agreement, the Agreement may be renewed on a yearly basis for a period of up to two (2) years after the initial agreement or for a period no longer than the term of the original agreement, whichever period is longer, specifying the terms under which the cost may change as determined in the invitation to bid, request for proposals, or pertinent statutes or regulations. (c) All bills for fees or other compensation for services or expenses shall be submitted in detail sufficient for a proper preaudit and postaudit thereof. (d) If otherwise allowed under this Agreement, all bills for any travel expenses shall be submitted in accordance with s. 112.061, Fla. Stat. (e) The Department of Community Affairs reserves the right to unilaterally cancel this Agreement for refusal by the Recipient to allow public access to all documents, papers, letters or other material subject to the provisions of Chapter 119, Fla. Stat., and made or received by the Recipient in conjunction with this Agreement. (f) If the Recipient is allowed to temporarily invest any advances of funds under this Agreement, any interest income shall either be returned to the Department or be applied against the Department's obligation to pay the contract amount. (g) The State of Florida will not intentionally award publicly -funded contracts to any contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 U.S.C. Section 1324a(e) [Section 274A(e) of the Immigration and Nationality Act ("INA")]. The Department shall consider the employment by any contractor of unauthorized aliens a violation of Section 274A(e) of the INA. Such violation by the Recipient of the 12 employment provisions contained in Section 274A(e) of the INA shall be grounds for unilateral cancellation of this Agreement by the Department. (18) STATE LOBBYING PROHIBITION. No funds or other resources received from the Department in connection with this Agreement may be used directly or indirectly to influence legislation or any other official action by the Florida Legislature or any state agency. Refer to Attachment E for additional terms and provisions relating to lobbying. (19) COPYRIGHT, PATENT AND TRADEMARK If applicable to this Agreement, refer to Attachment G for terms and conditions relating to copyrights, patents and trademarks. (20) LEGAL AUTHORIZATION. The Recipient certifies with respect to this Agreement that it possesses the legal authority to receive the funds to be provided under this Agreement and that, if applicable, its governing body has authorized, by resolution or otherwise, the execution and acceptance of this Agreement with all covenants and assurances contained herein. The Recipient also certifies that the undersigned possesses the authority to legally execute and bind Recipient to the terms of this Agreement. (21) VENDOR PAYMENTS. Pursuant to Section 215.422, Fla. Stat., the Department shall issue payments to vendors within 40 days after receipt of an acceptable invoice and receipt, inspection, and acceptance of goods and/or services provided in accordance with the terms and conditions of the Agreement. Failure to issue the warrant within 40 days shall result in the Department paying interest at a rate as established pursuant to Section 55.03(1) Fla. Stat. The interest penalty shall be paid within 15 days after issuing the warrant. Vendors experiencing problems obtaining timely payment(s) from a state agency may receive assistance by contacting the Vendor Ombudsman at (850) 488-2924 or by calling the State Comptroller's Hotline at 1-800-848-3792. 13 IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed by their undersigned officials as duly authorized. VILLAGE OF K BY: Name and title: Date: April 4, 2001 SAMAS # N/A STATE OF FLORIDA FID# 65-0291811 DEPARTMENT OF COMMUNITY AFFAIRS BY: Name and Title: Date: �6//A of C014404 P 14 Attachment A Scope of Work and Schedule of Deliverables Scope of Work 1. Retain engineering firm to provide engineering services for the sidewalk construction program. 2. Hold public hearing for the project on April 24, 2001, followed by bid on April 30, 2001. 3. Completion of engineering drawings; notification of property owners to remove landscape materials from right-of-way by May 1, 2001. 4. Award contract for sidewalk construction by May 8, 2001. 5. Substantial completion of sidewalk construction. Schedule of Deliverables Deliverable Payment Due Date 1. Copies of resolutions from public $20,000 (50%) June 1, 2001 hearings; copies of engineering design contract and design/ construction documents 2. Site progress reports, to include $20,000 (50%) November 15, 2001 total linear feet constructed to date, specific street names, and sidewalk construction photographs 15 Attachment E Federal Lobbying Prohibitions The Recipient certifies, by its signature to this Agreement, that to the best of his or her knowledge and belief: (a) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan or cooperative agreement. (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (c) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representative of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 16