Fort Walton Beach Resolution — 2022-05--Bridge Maintenance Agreement — reading text

AGENCY. Upon issuance of the Notice of Final Acceptance, the LOCAL AGENCY shall be immediately responsible for the perpetual maintenance of the PROJECT or the portion of the The DEPARTMENT shall PROJECT that is located on the LOCAL AGENCY' S right- of-way. also have the right to assign interim maintenance responsibility to the LOCAL AGENCYSaid for specified portions of the PROJECT before the issuance of the Notice of Final Acceptance. assignment of maintenance responsibility shall be sent by the DEPARTMENT to the LOCAL AGENCY in writing with sufficient description to place the LOCAL AGENCY on notice of the interim responsibility. maintenance Notwithstanding the issuance of the Notice of Final Acceptance, the DEPARTMENT shall have the right to assure completion of any punch list by the contractor. Additionally, the LOCAL AGENCY understands and agrees that the DEPARTMENT shall transfer all permits to the LOCAL AGENCY as the operational maintenance entity and the LOCAL AGENCY agrees to accept said transfer and to become fully responsible to comply with all operational and maintenance conditions of the permits. 14. This Agreement shall become effective as of the date both Parties hereto have executed the Agreement and shall continue in full force and effect until the PROJECT is completed by the DEPARTMENT and the improvements have been turned over to the LOCAL from the DEPARTMENT. The the DEPARTMENT by formal notice AGENCY by DEPARTMENT reserves the right to unilaterally cancel its performance hereunder if it determines that it is in the best interest of the public to do so. This discretion shall include but shall not be limited to budgetary and bid cost considerations. 15. The DEPARTMENT may unilaterally cancel this Agreement for refusal by the LOCAL AGENCY to allow public access to all documents, papers, letters or other material subject to the provisions of Chapter 119, Florida Statutes and made or received by the LOCAL AGENCY in conjunction with this Agreement. 16. It is understood that the DEPARTMENT' S participation in said PROJECT is subject to Legislative approval of the DEPARTMENT' s appropriation request in the work program year that the PROJECT is scheduled. 17. The DEPARTMENT' S performance and obligations to pay under this Agreement is contingent upon an annual appropriation by the Legislature. If the DEPARTMENT' S funding for this PROJECT is in multiple years, funds approved from the DEPARTMENT' S Comptroller must be received every year prior to costs being incurred. 18. In the event this Agreement is in excess of$ 25, 000.00 and has a term for a period of more than one year, the provisions of Section 339. 135( 6)( a), Florida Statutes are hereby incorporated: The Department, during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The department shall require a statement from the comptroller of the Department that funds are Page 3 of 6  FPID#.: 415474- 2- 52- 01 Rev.: 9/ 21 LOCAL AGENCY: Fort Walton Beach available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding 1 year but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid in succeeding fiscal years, and this paragraph shall be incorporated verbatim in all contracts of the Department which are for an amount in excess of$ 25, 000.00 and which have a term for a period of more than 1 year." 19. This Agreement shall be governed by the laws of the State of Florida. Any provision hereof found to be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining portions hereof. 20. To the extent permitted by law, LOCAL AGENCY shall indemnify, defend, and hold harmless the DEPARTMENT and all of its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission or negligent act by LOCAL AGENCY, its agents, or employees, during the performance of the Agreement, except that neither LOCAL AGENCY, its agents, or its employees will be liable under this paragraph for any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission, or negligent act by the DEPARTMENT or any of its officers, agents, or employees during the performance of the Agreement. Nothing herein shall be deemed a waiver of the rights of sovereign immunity of either Party. overruns, supplemental agreements ( specifically 21. In the event there are cost incurred in the areas located off the State Highway System), and or liquidated damages not eligible to be paid for by federal funds due to the Federal Highway Administration determining that said costs are non-participating costs, the LOCAL AGENCY shall be responsible for one- hundred percent ( 100%) of the funds required to make up the shortfall not paid by federal funds. The PROJECT is off of the " State Highway System," therefore, in accordance with Section 339. 08( 1), State funding cannot be used for payments of non-participating costs on this F. S., PROJECT. ( Examples of non-participating items could be fishing piers; premium costs due to design or CEI errors or omissions; material or equipment called for in the plans but not used in the construction, as referenced in the Federal Aid Policy Guide 23, CFR Section 635. 120). a. Should such shortfalls occur due to a determination that said costs are non- participating, the LOCAL AGENCY agrees to provide, without from delay,thea deposit within fourteen ( 14) calendar days of notification DEPARTMENT, to ensure that cash on deposit with the DEPARTMENT is sufficient to fully fund the shortfall. The DEPARTMENT shall notify the LOCAL AGENCY as soon as it becomes apparent there is a shortfall; however, failure of the DEPARTMENT to so notify the LOCAL AGENCY shall not relieve the LOCAL AGENCY of its obligation to pay for its full participation of non-participating costs during the PROJECT and on final accounting, as provided herein below. If the LOCAL AGENCY cannot provide the deposit within fourteen ( 14) days, a letter must be submitted to and approved by the DEPARTMENT' S contract manager indicating when the deposit will be made. The LOCAL AGENCY understands the request and Page 4 of 6  FPID#.: 415474- 2- 52- 01 Rev.: 9/ 21 LOCAL AGENCY: Fort Walton Beach approval of the additional time could delay the PROJECT, and additional non- participating costs may be incurred due to the delay of the PROJECT. The DEPARTMENT intends to have its final and complete accounting of all costs incurred in connection with the work performed hereunder within three hundred sixty days ( 360) of final payment to the Contractor. The DEPARTMENT considers the PROJECT complete when the final payment has been made to the Contractor, not when the construction work is complete. All non-participating Project cost records and accounts shall be subject to audit by a representative of the LOCAL AGENCY for a period of three ( 3) years after final close out of the PROJECT. The LOCAL AGENCY will be notified of the final non-participating cost of the PROJECT. Both Parties agree that in the event the final accounting of total non-participating costs pursuant to the terms of this Agreement is less than the total deposits to date, a refund of be the DEPARTMENT to the LOCAL AGENCY. If the final the excess will made by accounting is not performed within three hundred and sixty (360) days, the LOCAL AGENCY is not relieved from its obligation to pay. In the event the final accounting of total non- participating costs are greater than the total deposits to date, the LOCAL AGENCY will pay the additional amount within forty (40) calendar DEPARTMENT. The LOCAL AGENCY agrees to days from the date of the invoice from the pay interest at a rate as established pursuant to Section 55. 03, F. S., on any invoice not paid within forty (40) calendar days until the invoice is paid. Any payment of funds under this Agreement provision will be made directly to the DEPARTMENT for deposit. 22. LOCAL AGENCY: a) Shall utilize the U.S. Department of Homeland Security' s E-Verify system to verify the employment eligibility of all new employees hired by the LOCAL AGENCY during the term of the contract; and b) Shall expressly require any subcontractors performing work or providing services pursuant to the state contract to likewise utilize the U.S. Department of Homeland Security' s E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the contract term. 23. All notices required pursuant to the terms hereof may be sent by first class United States Mail, facsimile transmission, hand delivery or express mail and shall be deemed to have been received by the end of five business days from the proper sending thereof unless proof of prior actual receipt is provided. Each Party hereto shall have the continuing obligation to notify each other of the appropriate persons for notices to be sent to pursuant to the terms of this agreement. Unless otherwise notified in