Fort Walton Beach — 2014- 4 - Agreement with MOEX

RESOLUTION 2014 - 4 A RESOLUTION OF THE CITY OF FORT WALTON BEACH, FLORIDA, ACCEPTING FUNDING THROUGH THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION THROUGH AN APPROPRIATION FROM FUNDS RECEIVED FROM THE DEEP WATER HORIZON OIL SPILL SETTLEMENT WITH MOEX; AUTHORIZING THE MAYOR TO EXECUTE THE GRANT AGREEMENT; AUTHORIZING THE CITY MANAGER TO ADMINISTER THE PROJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the U. S. Department of Justice, U. S. Coast Guard, and U. S. Environmental Protection Agency entered into a settlement with MOEX Offshore 2007, LLC related to the Deepwater Horizon oil spill; WHEREAS, the Florida Department of Environmental Protection .( Department) has been appointed to administer the funding from this settlement for projects approved by the Department; WHEREAS, the City of Fort- Walton Beach ( City) and the Department agree that the stormwater project located at 214 and 225 Miracle Strip Parkway SW is an appropriate use of the awarded funds; WHEREAS, the total amount of funds for this project are not -to- exceed $ 963, 824. 00; WHEREAS, the City agrees to complete this project on a reimbursement basis. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF CITY OF FORT WALTON BEACH, FLORIDA AS FOLLOWS: SECTION 1. That the City Council finds the above stated recitals to be true and correct and incorporates them herein by reference. SECTION 2. That the City Council hereby supports the proposed stormwater water quality project. SECTION 3. That the City Council hereby instructs its staff to coordinate and cooperate with the Department in designing, developing, managing, and inspecting this Project. SECTION 4. That the City Council hereby authorizes the Mayor to execute the Agreement and any accompanying grant documents, pending legal review and approval, between the Department, the City and the Contractor. SECTION 5. That the City Council hereby authorizes the City Manager to administer the Agreement to complete the design and construction of the project. SECTION 6. That this Resolution shall take effect immediately upon adoption by the City Council. ADOPTED this day of 2014.  RESOLUTION 2014 - 4 Mike Anderson, Mayor Attes : Approved for form, legal suffi _ - - ! L4LW7 -41 - - Helen Spencer, Cit - lerk 71, Dykes, Jr., ity orney  C: C0PY CO DEP Agreement No. S0693 GRANT AGREEMENT THIS AGREEMENT is entered into between the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, whose address Is 3900 Commonwealth Boulevard, Tallahassee, Florida 32399 3000 ( hereinafter referred to as the' Departmenf) and the CITY OF FORT WALTON BEACH, whose address is City Hall, 105 Miracle Strip Parkway, Fort Walton Beach, Florida 32548 ( hereinafter referred to as ' City, a local government, to provide financial assistance for the construction of a Stormwater Management Facility. In consideration of the mutual benefits to be derived herefrom, the Department and the City -do hereby agree as follows: The City does hereby agree to perform in accordance with the terms and conditions set forth in this Agreement Attachment A, Grant Work Plan, and all attachments and exhibits named herein which are attached hereto and incorporated by-reference. 2. This Agreement shall begin upon execution by both parties and remain in effect for a period of thirty -six ( 36) months, inclusive. The City shall be eligible for reimbursemerit for work performed on or after the date of execution through the expiration of this Agreement 3. A. As consideration for the satisfactory completion of services rendered by the City under the terms of this Agreement, the Department shall pay the City on a cost reimbursement basis up to a maximum of 963, 824. 00. The City hereby agrees to pay for all costs of completing the construction of the Stormwater Management Facility ( Project), which are in _excess of the funding provided under this Agreement, inclusive of any changes or amendments to the Project scope and any authorized elective or required change. orders between the City and their consultants and /or construction contractor. B. The City shall be reimbursed on a cost reimbursement basis for all .eligible project costs, upon the completion, submittal and approval of deliverables identified in Attachment A Reimbursement shall be requested in accordance with the schedule in Attachment A. All bills for amounts due under this Agreement shall be submitted in detail sufficient for a. proper pre -audit and post -audit thereof. A final payment request should be submitted to the Department no later than sixty ( 60) days following the completion date of the Agreement, to assure the availability of funds for payment Each payment request submitted shall document that all costs in excess of the funding- provided under this Agreement have been paid. In the event that all tasks outlined in Attachment A are not satisfactorily completed within the terms of this Agreement, the City shall return all funds provided under this Agreement to the Department. C. The State Chief Financial Officer requires detailed- supporting documentation of all costs under a cost reimbursement agreement. In accordance with the Attachment B, Contract Payment Requirements, the City shall comply with the minimum requirements set forth therein. The Payment Request Summary Form shall be accompanied by supporting documentation and other requirements as follows: Salaries/ Wages — The City shall not be reimbursed for direct salaries or multipliers ( i. e., fringe benefits, overhead, and /or general and administrative rates) for City employees. DEP Agreement No. S0693, Page 1 of 8  Contractual ( Subcontractors) - Reimbursement requests for payments to subcontractors must be substantiated by copies of invoices with backup documentation identical to that required from the City. Subcontracts which involve payments for direct salaries shall clearly identify the personnel involved, salary. rate per hour, and hours/ time spent on the project. All multipliers used ( i. e. fringe benefits, overhead, and/or general and administrative rates) shall be supported by audit. If the Department determines that multipliers charged by any subcontractors exceeded the rates supported by audit, the City shall be required to reimburse such funds to the Department within thirty ( 30) days of written notification. Interest on the excessive charges shall be calculated based on the prevailing rate used by the State Board of Administration. Additionally, independent of the City's contract obligations to the subcontractor, the Department shall not reimburse any of the following types. of,charges: cell phone. usage, attomeys' fees,. civil or administrative penalties, handling fees, such as set percent -overages associated with purchasing supplies or equipment For fixed price ( vendor) subcontracts, the following provisions shall apply: The. City may award, on a competitive basis, fixed price subcontracts to consultants/ contractors in performing the work described in Attachment A. Invoices submitted to the Department for fixed price subcontracted activities shall be supported With a copy of the subcontractor' s invoice and a copy of the tabulation form for the competitive procurement process ( Invitation to Bid or Request for Proposals) resulting in the fixed price subcontract. b. The City may request approval from the Department to award a fixed price subcontract resulting from procurement methods other than those identified in the paragraph above. In this instance, the City shall request the advance written approval from the Department's Project Manager of the fixed price negotiated by the City. The letter of request shall be supported by a detailed budget and Scope of Services to be performed by the subcontractor. Upon receipt of the Department Project Manager' s approval of the fixed price amount, the City may proceed in finalizing the fixed price subcontract. C. All subcontracts are subject to the provisions of. paragraph 12 and any other appropriate provisions of this Agreement which affect subcontracting activities. iii. Travel - Reimbursement for travel expenses is not authorized under this. Agreement iv. Equipment - ( Capital outlay costing $ 1, 000 or more) - Reimbursement for the purchase of equipment is not authodzed under this Agreement Other Expenses - e.g., Materials, supplies, construction materials, must be documented by itemizing and. including copies of receipts or invoices. D. In addition to the invoicing requirements contained in paragraph 3. 8 and . 3. C. above, the Department will periodically request proof of a transaction ( invoice, payroll register, etc.) to evaluate the appropriateness of costs to the Agreement pursuant to State and Federal guidelines ( including cost allocation guidelines), as appropriate. This information, when requested, must be provided within thirty 30) calendar days of such request. The City may also be required to submit a cost allocation plan to the Department in support of its multipliers ( overhead, indirect, general administrative costs,- and fringe benefits). State guidelines for allowable costs can be found in the Department of Financial Services' Reference Guide for State Expenditures at http: / /www. fldfs. com /aadir /reference % 5Fquide. DEP Agreement No. S0693, Page 2 of 8  E. i. The accounting systems for the City must ensure that these funds are not commingled with funds from other agencies. Funds from each agency must be accounted for separately. The City is prohibited from commingling funds on either a program -by- program or a project -by- project basis. Funds specifically budgeted and /or received for one project may not be used to support another project. Where a City's, or subrecipient' s, accounting system cannot comply with this requirement,` the City, or subrecipient, shall establish a system to provide adequate fund accountability for each project it has been awarded. If the Department finds that these funds have been commingled, the Department shall have. the right to demand a refund, either in whole or in part, of the funds provided to the City under -this Agreement for non -compliance with the material terns of this Agreement The City, upon such written notification from the Department -shall refund, and shall forthwith pay to the Department, the amount of money demanded by the Department Interest on any refund shall be calculated based on the prevailing rate used by the State Board of Administration. Interest shall be calculated from the date( s) the original payment( s) are received from the Department by the City to the date repayment is made by the City to the Department. iii. In the event that the City recovers costs, incurred under this Agreement and- reimbursed by the Department, from another source(s), the City shall reimburse the Department for all recovered funds originally provided under this Agreement. Interest on any refund shall be calculated based on the prevailing rate used by the State Board of Administration. Interest shall be calculated from the date( s) the payments) are recovered by the City to the date repayment is made to the Department by the City. 4. The State of Florida' s performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature. The parties hereto understand that this Agreement is not a commitment of future appropriations. 5. The City shall submit Monthly Construction Progress Reports as required in Attachment A. The Department' s Project Manager shall have ten ( 10) calendar days to review the required reports and deliverables- submitted by the City. 6. Each party hereto agrees that it shall be solely responsible for the negligent or wrongful acts of its employees and agents. However, nothing contained herein shall constitute a waiver by either party of its sovereign immunity or the provisions of Section 768.28, Florida Statutes. A. The Department may terminate this Agreement at any time in the event of the failure of the City to fulfill any of its obligations under this Agreement Priorto termination, the Department shall provide thirty 30) calendar days written notice of its intent to terminate and shall provide the City an opportunity to consult with -the Department regarding the reason( sj for termination. The Department may terminate this Agreement for convenience by providing the City with thirty ( 30) calendar days written notice. Regardless of termination for convenience, neither party shall be relieved of its obligation to pay its share of the costs for services satisfactorily provided prior to the notice of termination for convenience. C. This Agreement may -be unilaterally canceled by the Department for refusal by the City -to allow public access to all documents, papers, letters, or other material made or received by the City in conjunction with this Agreement, unless the records are exempt from Section 24( a) of Article I of the State Constitution and Section 119. 07( 1)( a), Florida Statutes. DEP Agreement No. S0693, Page 3 of 8  L • B. No payment will be made for deliverables deemed unsatisfactory by the Department. In the event that a deliverable is deemed unsatisfactory by the Department, the City shall re- perform the services needed for submittal of a satisfactory deliverable, at no additional cost to the Department, within thirty (30) days of being notified of the unsatisfactory deliverable. If a satisfactory deliverable is not submitted within the specified timeframe, the Department may, in its sole discretion, either. 1) terminate the Agreement for failure to perform, or 2) Department Project Manager may, by letter specifying the failure of performance under the Agreement, request that a proposed Corrective Action Plan ( CAP) be submitted by the. City to the Department, All CAPs must be able to be implemented and performed in no more than sixty ( 60) days. A. A CAP shall be submitted within ten ( 10). calendar days of the date of the letter request from the Department. The CAP shall be sent to the Department Project Manager for review and approval. Within ten ( 10) business days of receipt of a CAP, the Department shall notify the City in writing whether the CAP proposed -has been accepted. If the CAP is not accepted, the-City-shall have ten ( 10) calendar days from receipt of the Department letter rejecting the proposal to submit a revised proposed CAP. Failure to obtain Department approval of a CAP as specified above shall result in the Department' s termination of the Agreement for cause as authorized in the Agreement. B. Upon the Department' s notice of acceptance of a proposed CAP, the City shall have ten ( 10) calendar days to commence implementation of the accepted plan. Acceptance of the proposed CAP by the Department does not relieve the City of any of its obligations under the Agreement. In -the event the CAP fails to correct or eliminate performance deficiencies by the City, the Department shall retain the right to require additional or further remedial steps, or to terminate the Agreement for failure to perform. No actions approved by the Department or steps taken by City shall serve to estop the Department from subsequently asserting any deficiencies in performance. City shall continue to implement the CAP until all deficiencies are corrected. Reports on the progress of the CAP will be made to Department as requested by the -Department Project Manager. C. Failure, -to respond to a Department request for a CAP or failure to correct a deficiency in the performance of the Agreement as specified by the Department may result in termination of the Agreement. The remedies set forth above are not exclusive and the Department. reserves the right to exercise other remedies in addition to or in lieu of those set forth above, as permitted by the Agreement. 9. The City shall maintain books, records and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. The Department, the State, or their authorized representatives shall have access to such records for audit purposes during the term of this Agreement and for five ( 5) years following Agreement completion. In the event any work is subcontracted, the City shall similarly require each subcontractor to maintain and allow access to such records for audit purposes. 10. A. in addition to the requirements of the preceding paragraph, the City shall comply with the: applicable provisions contained in Attachment C, Special ,Audit Requirements, attached hereto and made a part hereof. Exhibit 1 to Attachment summarizes the funding sources supporting the Agreement for purposes of-assisting the City in complying with the requirements of Attachment C. A revised copy of Exhibit 1 must. be provided to the City for each amendment which authorizes a funding increase or decrease. If the City fails to receive a revised copy of Exhibit 1, the City shall notify the Department' s Grants Development and Review Manager at ( 850) 245 -2361 to request a copy of the updated information. DEP Agreement No. S0693, Paged of 8  B. The City is hereby advised that the Federal and/or Florida Single Audit Act Requirements may further apply to lower fier transactions that may be a result of this Agreement The City shall consider the type of financial assistance ( federal and/ or state) identified in Attachment C, Exhibit 1 when making its determination. For federal financial assistance; the City shall utilize the guidance provided under OMB Circular A -133, Subpart B, Section _. 210 for determining whether the relationship represents that of a subrecipient or vendor. For state financial assistance, the City shall utilize the form entitled Checklist for Nonstate Organizations Recipient/ Subrecipient vs Vendor Determination' ( form number DFS- A2 -NS) that can be found under the' Links/ Forms' section appearing at the following website: https: i /apps. fldfs. com/ fsaa The City should confer with its chief financial officer, audit director or contact the Department for assistance with questions pertaining to the applicability of these requirements. 11, A. The City may subcontract work under this Agreement without the prior written consent- of the Departments Project Manager. Regardless of any subcontract, the City is ultimately responsible for all work to be performed under this Agreement The City shall submit a copy of the executed subcontract to the Department within ten ( 10) days after execution. The City agrees to tie 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 Department shall not be liable to any subcontractor for any expenses or liabilities incurred under the subcontract and that the City shall be solely liable to the subcontractor for all expenses and liabilities incurred under the subcontract. B. The Department of Environmental Protection supports diversity in its procurement program and requests that all subcontracting opportunities afforded by this Agreement embrace diversity enthusiastically. The award of subcontracts should reflect the full diversity of the citizens of the State of Florida. A list of minority owned firms that could be offered subcontracting opportunities may be obtained by contacting the Office of Supplier Diversity at 850- 487 -0915. 12. In accordance with Section 216.347, Florida Statutes, the City is hereby- prohibited using funds provided by this Agreement for the purpose of lobbying the Legislature, the judicial branch or a state agency. 13. The City shall comply with all applicable federal, state and local rules and regulations in providing services to the Department under this Agreement. The City acknowledges that this requirement includes, but is not limited to, compliance with all applicable federal, state and local health and safety rules and regulations. The City further agrees to include this provision in all subcontracts issued as a result of this Agreement. 14. Any notices between the parties shall be considered delivered when posted by Certified Mail, return receipt requested, or overnight courier service, or delivered in person to the Project Managers at the addresses below. 15. The Department' s Project Manager for this Agreement is identified below. Pearce Barrett, P. E. Florida Department of Environmental Protection 3900 Commonwealth Boulevard, MS# 240 Tallahassee, Florida 32399- 3000 Telephone No.: 8501245- 2106 Fax No.: - 850 245 - 2190 DEP Agreement No_ S0693, Page 5 of 8  E -mail Address: I Pearce. Barrett de . state fl.us 16. The City' s Project Manager for this Agreement is identified below. Daniel J. Payne, P. E. City Engineer City of Fort Waliorr:Beach 203' Noll ood Blvd. N. W. Fort Walton Beach; Florida 325:48 Telephone No.: - 850 833 -9615` Fax No.; 850 461 - 0239 E -mail Address: dpayne@fwb. org 17. To the extent required by law, the City will be self- insured against, or will secure and maintain during the life of this Agreement, Workers' Compensation Insurance for all of its employees connected with the work of this project and, in case any work is subcontracted, the City shall require the -subcontractor similarly to provide Workers' Compensation Insurance for all of the. latter' s employees unless such employees are covered by the protection afforded by the City. Such. setf_insurance program or insurance coverage shall comply fully with the Florida Workers' Compensation law. In case any class of employees engaged in hazardous work under this Agreement is not protected under Workers' Compensation statutes, :the City shall provide, and cause each subcontractor to provide, adequate insurance satisfactory to the Department, for the protection of his employees not otherwise protected. 18. The City warrants and represents that it is self -funded for liability insurance, appropriate and allowable under Florida law, and that such self -insurance offers protection applicable to the City' s officers, employees, servants and agents while acting within the scope of their employment with the City. 19. The City covenants that it presently has no interest and shall not acquire any interest which would conflict in any manner or degree with the performance of services required. 20. The Department may at any time, by written order designated to be a change order, make any change in the Project Manager information or task timelines within the current authorized Agreement period. All change orders are subject to the mutual agreement of both parties as evidenced in writing. Any change, which causes an increase or decrease in the City's cost or time, shall require formal amendment to this Agreement. 21. The employment of unauthorized aliens by any Citylvendor is considered a violation of Section 274A( e) of the Immigration and Nationality. -Act. If the City /vendor knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Agreement. The ,City shall be responsible for including this provision in all subcontracts with private organizations issued as a result of this. Agreement. 22. A. No person, on the grounds of race, creed, color, national origin, age, sex, or disability, shall be excluded from participation in; be denied the proceeds or benefits of; or be- otherwise subjected to discrimination in performance of this Agreement B. An entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid on a contract to provide 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 award or perform work as a City, supplier, subcontractor, or consultant under contract with any public entity, and may not transact business with any public entity. DEP Agreement No. S0693, Page 6 of 8  The Florida Department of Management Services is responsible for maintaining the discriminatory vendor list and intends to post the list on its website. Questions regarding the discriminatory vendor list may be directed to the Florida Department of Management Services, Office of Supplier Diversity, at 850) 487 -0915. 23. Land acquisition is not authorized under the terms of this Agreement. 24. This Agreement has been delivered in the State of Florida and shall be construed in accordance with the laws of Florida. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited -or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Any action hereon or in connection herewith shall be brought in Leon County, Florida. 25. This Agreement represents the entire agreement of the parties. Any alterations, variations, changes, modifications or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing, duly signed by each of the parties hereto, and attached to the original of this Agreement, unless otherwise provided herein. IN WITNESS WHEREOF, the patties have caused this Agreement to "be duly executed, the day and year last written below. CITY OF FORT WALTON BEACH STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION r/I By: By: , Z Title: ' Mike, Anderson' - Mayor Secretary or designee .ril -15 AP.. ZOI4 Date: ATTEST: wCity' " Clerk FEID No.:. 59- 6000323 7j'l 41t_m _ DEP Contracts Administrat r Approved as to form and legality: Z,t, 2t:e& DEP Attomey For Agreements with governmental boardsicommissions: If someone other than the Chairman signs this Agreement, a resolution, statement or other document authorizing that person to sign the Agreement on behalf of the City must accompany the Agreement. DEP Agreement No. S0693, Page 7 of 8  E, is List of attachments/ exhibits included as part of this Agreement: Specify Letter/ Type Number Description ( include number of pages) Attachment A Grant Work Plan ( 9 Pages) Attachment B Contract Payment Requirements ( 1 page) Attachment C Special Audit Requirements ( 5 pages) REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Agreement No. SOM, Page 8 of 8