HomeMy WebLinkAbout2006-061 7-
AGREEMENT
for
PROFESSIONAL SERVICES
THIS AGREEMENT for PROFESSIONAL SERVICES ("Agreement" ) , entered into
as of this 21St day of February, 2006 by and between INDIAN RIVER COUNTY , a political
subdivision of the State of Florida ("COUNTY" ) , and Malcolm Pirnie , Inc. , a New York
corporation ("Consultant" ) .
BACKGROUND RECITALS :
A. In accordance with the Consultants' Competitive Negotiations Act, Florida
Statutes Section 287 . 055 , the COUNTY has selected Consultant to provide certain
professional services relating to the design of the Rockridge Subdivision Surge Protection
Project ("Services" ) as more fully set forth in Exhibit 1 attached to this Agreement and
made a part hereof by this reference .
B . The Consultant is willing and able to perform the Services for the COUNTY
on the terms and conditions set forth below;
C . The Consultant acknowledges and agrees that the Rockridge Subdivision
Surge Protection Project is funded , in part , by grant funds as more specifically set forth
herein .
D . The COUNTY and the Consultant wish to enter into this Agreement for the
Services .
NOW THEREFORE , in accordance with the mutual covenants herein contained and
other good and valuable consideration , the receipt and sufficiency of which are hereby
acknowledged , the parties agree as follows :
1 . GENERAL .
1 . 1 All professional services provided by the Consultant for the COUNTY shall
be identified in Work Orders and performed in a timely, efficient, cost effective manner,
and in accordance with the current professional standards of the applicable discipline .
Work Orders shall include a description of services to be performed ; a statement of fees ; a
schedule of deliverables ; proposed schedule for compensation and whether compensation
is lump sum maximum amount not to exceed task based , or any combination of the
foregoing ; a budget establishing the amount of compensation to be paid with sufficient
detail so as to identify all of the various elements of costs ; a projected schedule for
completion of the work to be performed by the Consultant; and any other additional
instructions or provisions relating to the specific Services authorized pursuant to each
Work Order that does not conflict with the terms of this Agreement.
1 . 2 Whenever the term "Work Order" is used herein , it is intended to mean that
formal document that is dated ; serially numbered ; and executed by both the COUNTY and
the Consultant by which the COUNTY accepts Consultant' s proposal for specific services
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and Consultant indicates a willingness to perform such specific services for the terms and
under the conditions specified in this Agreement. Each Work Order must be fully executed
by the COUNTY prior to issuance of the related Notice-to- Proceed .
1 . 3 Services related to any individual Work Order which would increase ,
decrease or which are otherwise outside the scope of Services or level of effort
contemplated by a Work Order shall be Services for which the Consultant must obtain the
prior written approval of the COUNTY as provided by this Agreement. All terms for the
performance of such Services must be agreed upon in a written document prior to any
deviation from the terms of a Work Order, and when properly authorized and executed by
both the Consultant and the COUNTY shall become an amendment to the Work Order or a
new Work Order, at the sole option of the COUNTY. A separate Notice to Proceed may, at
the sole option of the COUNTY, be given for each phase of the services contained in any
Work Order hereunder.
1 .4 Work Order shall not give rise to any contractual rights until it meets the
foregoing requirements . Each written Notice to Proceed and specific Work Order, as
approved by the COUNTY , shall be an addendum to this Agreement . Nothing contained in
any Work Order shall conflict with the terms of this Agreement, and the terms of this
Agreement shall be deemed to be incorporated in each individual Work Order as if fully set
forth therein .
1 . 5 A schedule of current hourly billing rates is set forth in Exhibit 2 attached to
this Agreement and made a part hereof by this reference .
1 . 6 The Background Recitals are true and correct and form a material part of this
Agreement .
2 . COUNTY OBLIGATIONS .
2 . 1 The COUNTY will provide the Consultant with a copy of any preliminary data
or reports available as required in connection with the work to be performed under this
Agreement , together with all available drawings , surveys , right-of-way maps , and other
documents in the possession of the COUNTY pertinent to the Services . The Consultant
shall satisfy itself as to accuracy of any data provided . The Consultant is responsible for
bringing to the COUNTY's attention , for the COUNTY's resolution , material inconsistencies
or errors in such data that come to the Consultant's attention .
2 . 2 The COUNTY shall arrange for access to , and make provisions for the
Consultant to enter upon , public and private property (where required ) as necessary for the
Consultant to perform its Services , upon the timely written request of Consultant to
COUNTY .
2 . 3 The COUNTY shall promptly execute all permit applications necessary to the
Services .
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2 .4 The COUNTY shall examine any and all studies , reports , sketches , drawings ,
specifications , proposals and other documents presented by the Consultant, and render, in
writing , decisions pertaining thereto within a reasonable time .
2 . 5 Approval by the COUNTY of any of the Consultant's work, including but not
limited to drawings , design specifications , written reports, or any work products of any
nature whatsoever furnished hereunder, shall not in any way relieve the Consultant of
responsibility for the technical accuracy and adequacy of the work. Neither the COUNTY's
review, approval or acceptance of, or payment for, any of the Services furnished under this
Agreement shall be construed to operate as a waiver of any rights under this Agreement or
of any cause of action arising out of the performance of this Agreement . The Consultant
shall be and remain liable in accordance with all applicable laws for all damages to the
COUNTY caused by the negligent performance by the Consultant of any of the Services
furnished under this Agreement .
2 . 6 The COUNTY reserves the right to appoint one or more Project Managers for
the specific Services in connection with any Work Order. The Project Manager shall : (a )
act as the COUNTY's agent with respect to the Services rendered hereunder; (b ) transmit
instructions to and receive information from the Consultant; (c) communicate the
COUNTY's policies and decisions to the Consultant regarding the Services ; and (d )
determine , initially, whether the Consultant is fulfilling its duties , responsibilities , and
obligations hereunder.
2 . 7 The COUNTY shall give prompt written notice to the Consultant whenever
the COUNTY observes or otherwise becomes aware of any development that affects the
timing or delivery of the Consultant's Services . If the Consultant has been delayed in
completing its Services through no fault or negligence of either the Consultant or any sub-
consultant , and , as a result, will be unable to perform fully and satisfactorily under the
provisions of this Agreement, then the Consultant shall promptly notify the Project
Manager. In the COUNTY's sole discretion , and upon the submission to the COUNTY of
evidence of the causes of the delay, the Work Order shall be modified in writing as set
forth in this Agreement, subject to the COUNTY'S rights to change , terminate , or stop any
or all of the Services at any time in accordance with this Agreement.
2 . 8 The Consultant shall not be considered in default for a failure to perform if
such failure arises out of causes reasonably beyond the Consultant's control and through
no fault or negligence of the Consultant. The parties acknowledge that adverse weather
conditions , acts of God , or other unforeseen circumstances of a similar nature , may
necessitate modifications to this Agreement. If such conditions and circumstances do in
fact occur, then the COUNTY and Consultant shall mutually agree , in writing , to the
modifications to be made to this Agreement.
3 . RESPONSIBILITIES OF THE CONSULTANT .
3 . 1 The Consultant agrees to perform all necessary professional engineering ,
project design , construction phase services , and other Services in connection with the
Services as set forth in the Work Orders and in this Agreement.
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3 . 2 The Consultant will endeavor not to duplicate any previous work done on in
connection with the Services . Before execution of a Work Order, the Consultant shall
consult with the COUNTY to clarify and define the COUNTY's requirements for the
Services .
3 . 3 The Consultant agrees to complete the Services within the time frame
specified in the Work Order.
3 .4 The Consultant will maintain an adequate staff of qualified personnel .
3 . 5 The Consultant will comply with all present and future federal , state , and
local laws , rules , regulations , policies , codes , and guidelines applicable to the Services
performed under this Agreement .
3 . 6 The Consultant , as a part of the consideration hereof, does hereby covenant
and agree that : ( 1 ) in connection with the furnishing of Services to the COUNTY
hereunder, no person shall be excluded from participation in , denied the benefits of, or
otherwise subjected to discrimination in regard to the services to be performed by
Consultant under this Agreement on the grounds of such person's race , color, creed ,
national origin , religion , physical disability, age or sex; and (2 ) the Consultant shall comply
with all existing requirements concerning discrimination imposed by any and all applicable
local , state , and federal rules , regulations , or guidelines , as such rules , regulations , or
guidelines may be from time to time amended .
3 . 7 The Consultant shall , during the entire term of this Agreement , procure and
keep in full force , effect, and good standing any and all necessary licenses , registrations ,
certificates , permits , and any and all other authorizations as are required by local , state , or
federal law, in order for the Consultant to render its Services as described in this
Agreement. The Consultant shall also require all sub-consultants to comply by contract
with the provisions of this section .
3 . 8 The Consultant will prepare all necessary sketches and completed
application forms to accompany the COUNTY' s applications for any required federal , state ,
or local permits .
3 . 9 The Consultant will cooperate fully with the COUNTY in order that all phases
of the work may be properly scheduled and coordinated .
3 . 10 The Consultant will cooperate and coordinate with other COUNTY
consultants , as directed by the COUNTY.
3 . 11 The Consultant shall report the status of the Services under this Agreement
to the County Project Manager upon request and hold all drawings , calculations and
related work open to the inspection of the County Project Manager or his authorized agent
at any time , upon reasonable request.
3 . 12 All documents , reports , tracings , plans , specifications , field books , survey
notes and information , maps , contract documents , and other data developed by the
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Consultant for the purpose of this Agreement, are and shall remain the property of the
COUNTY . The foregoing items will be created , maintained , updated , and provided in the
format specified by the County. When all work contemplated under this Agreement is
complete , all of the above data shall be delivered to the County Project Manager.
3 . 13 The Consultant will confer with the COUNTY during the further development
of improvements for which the Consultant has provided design or otherservices , and the
Consultant will interpret plans and other documents ; correct errors and omissions ; and
prepare any necessary plan revisions not involving a change in the scope of the work
required , at no additional cost to the COUNTY , within thirty (30 ) calendar days of notice by
the COUNTY , or upon a determination of the Consultant of the existence of such errors or
omissions , whichever event shall first occur. The foregoing is not intended to include
construction management services provided by the Consultant.
3 . 14 The Consultant agrees to maintain complete and accurate books and records
("Books") , in accordance with sound accounting principles and standards for all Services ,
costs , and expenditures under this Agreement . The Books shall identify the Services
rendered during each month of the Agreement and the date and type of each expense
related to the Services . The COUNTY shall have the right, at any reasonable time and
through any of its designated agents or representatives , to inspect and audit the Books for
the purpose of verifying the accuracy of any invoice . The CONSULTANT shall retain the
Books , and make them available to the County, the Florida Department of Community
Affairs , the U . S . Department of Housing and Urban Development, the Comptroller General
of the United States , and any of their duly authorized representatives , for the purpose of
making audit , examination , excerpts , and transcriptions . as specified above , until the later
of five (5) years after the date of termination of this Agreement, or such longer time as
required by any federal , state , or other governmental law, regulation , or grant requirement .
3 . 15 The Consultant shall not assign or transfer any work under this Agreement
without the prior written consent of the COUNTY. When applicable and upon receipt of
such consent from the COUNTY , the Consultant shall cause the names of the engineering
and surveying firms responsible for the major portions of each separate specialty of the
work to be inserted on the reports or other data .
3 . 16 All documents , including but not limited to drawings and specifications ,
prepared by the Consultant pursuant to this Agreement are related exclusively to the
Services described herein and are not intended or represented to be suitable for reuse by
the COUNTY or others on any other project. Reuse of any document or drawing shall be
at the COUNTY's own risk. The Consultant shall not be held liable for any modifications
made to the documents by others .
3 . 17 Community Development Block Grant Requirements .
3 . 17 . 1 . Indian River County, as the "Recipient" under Contract No . 06DB-3C- 10-40-
01 -W14 [Federally Funded Disaster Recovery Subgrant Agreement between the State of
Florida , Department of Community Affairs and Indian River County] agrees to include , in
any subcontract awarded thereunder, the following : ( i ) the Consultant is bound by the
terms of CDBG Contract # : 06DB-3C- 10-40-01 -W 14 , attached to this Agreement as
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Exhibit C and made a part hereof by this reference , to the extent applicable to this
Agreement for Professional Services ; (ii ) the Consultant is bound by all applicable state
and federal laws and regulations ; and ( iii ) the Consultant shall hold the Florida Department
of Community Affairs harmless against all claims of whatever nature arising out of the
Contractor's performance of work under this Agreement for Professional Services , to the
extent allowed and required by law.
3 . 17 . 2 . Indian River County, as the " Recipient" under Contract No . 06DB-3C- 10-40-
01 -W14 [Federally Funded Disaster Recovery Subgrant Agreement between the State of
Florida , Department of Community Affairs and Indian River County] agrees to include , in
any subcontract awarded thereunder, the following certification : "No Federal appropriated
funds have been paid or will be paid , by or on behalf of the undersigned Consultant , 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 ay cooperative
agreement, and the extension , continuation , renewal , amendment or modification of any
Federal contract, grant, loan or cooperative agreement . "
4 . TERM ; TIME FOR COMPLETION .
4 . 1 This Agreement shall remain in effect for a term of two (2 ) years ("Term " ) ,
unless otherwise sooner terminated as provided herein . The Term may be extended by
the COUNTY if the Services are not completed by the end of the Term . The decision to
extend the Term shall be at the sole discretion of the COUNTY. The Consultant shall be
notified in writing of the intent to extend the Agreement. The extended Term , if any, is
subject to sooner termination in accordance with the terms of this Agreement .
5 . COMPENSATION .
5 . 1 The COUNTY shall pay to the Consultant a mutually agreed upon lump sum
or maximum amount not-to-exceed professional fee for each task in the Work Order, to be
paid in monthly installments or on a deliverable basis , all as set forth in a Work Order.
Duly certified invoices , in triplicate , phased as per the Work Order, shall be submitted to
the County Project Manager, in detail sufficient for proper prepayment and post payment
audit . Upon submittal of a proper invoice the County Project Manager will determine if the
tasks or portions thereof have been satisfactorily completed . Upon a determination of
satisfactory completion , the County Project Manager will authorize payment to be made .
All payments for services shall be made to the Consultant by the COUNTY in accordance
with the Local Government Prompt Payment Act, as may be amended from time to time
( Florida Statutes Section 218 . 70 , et seq . ) .
5 . 1 . 1 The Consultant shall include on the invoices any identifiable per diem , meals
and lodgings , taxi fares and miscellaneous travel -connected expenses for Consultant' s
personnel subject to the limitations of Florida Statutes section 112 . 061 , as may be
amended from time to time . Travel expenses , if any, shall not be on a direct pay basis by
the COUNTY . Notwithstanding the foregoing , the Consultant acknowledges and agrees
that it will not be reimbursed for any travel within Indian River County, both after a
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Consultant arrives from outside of Indian River County, and where a Consultant maintains
an office in Indian River County.
5 . 1 . 2 The COUNTY shall make direct payment of all permit fees paid to regulatory
agencies for approvals directly attributable to the Services . These permit fees do not
include those permits required for any construction contractor.
5 . 2 The COUNTY may at any time notify the Consultant of requested changes to
the Services under an existing Work Order, and thereupon the COUNTY and the
Consultant shall execute a mutually agreeable amended Work Order or a new Work Order.
5 . 3 The COUNTY shall have the sole right to reduce or eliminate , in whole or in
part , any portion of the Services under any Work Order at any time and for any reason ,
upon written notice to the Consultant specifying the nature and extent of the reduction . In
such event , the Consultant shall be paid for the Services already performed and also for
the Services remaining to be done and not reduced or eliminated , upon submission of
invoices as set forth in this Agreement.
5 . 4 The COUNTY may, at any time and for any reason , direct the Consultant to
suspend Services , in whole or in part under this Agreement . Such direction shall be in
writing , and shall specify the period during which Services shall be stopped . The
Consultant shall resume its Services upon the date specified , or upon such other date as
the COUNTY may thereafter specify in writing . Where the COUNTY has suspended the
services under this Agreement for a period in excess of six (6 ) months , the compensation
of Consultant for such suspended Services may be subject to modification . The period
during which the Services are stopped by the COUNTY shall be added to the time of
performance of this Agreement .
6 . ADDITIONAL WORK .
6 . 1 If services in addition to the Services provided hereunder are required or
desired by the County, the COUNTY may, at the sole option of the COUNTY: separately
obtain same outside of this Agreement; or request the Consultant to provide , either directly
by the Consultant or by a sub-consultant, such additional services by a new Work Order or
by a written amendment to a specific Work Order.
7 . INSURANCE AND INDEMNIFICATION .
7 . 1 The Consultant shall not commence work on this Agreement until it has
obtained all insurance required under this Agreement and such insurance has been
approved by the County's Risk Manager.
7 . 2 Consultant shall procure and maintain , for the duration of this Agreement, the
minimum insurance coverage as set forth herein . The cost of such insurance shall be
included in the Consultant' s fee :
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7 . 2 . 1 Workers' Compensation : Workers' Compensation as required by the State of
Florida . Employers' Liability of $ 100 ,000 each accident, $ 500 , 000 disease policy limit, and
$ 100 , 000 disease each employee .
7 . 2 .2 General Liability: commercial general liability coverage , including contractual
liability and independent contractor, with a minimum combined single limit of $ 100 , 000 per
occurrence and personal injury coverage of $50 , 000
7 . 2 . 3 Business Automobile Liability: owned , hired , and non-owned vehicles at a
minimum combined single limit of $ 100 , 000 per occurrence and personal injury coverage
of $50 , 000 for bodily injury and property damage for owned and non-owned vehicles .
7 . 2 .4 Professional Liability Insurance : providing coverage for negligent acts , errors ,
or omissions committed by Consultant with a limit of $ 1 , 000 , 000 per claim/annual
aggregate . This insurance shall extend coverage to loss of interest , earning , profit, use ,
and business interruption , cost of replacement power, and other special , indirect, and
consequential damages .
7 . 3 Consultant' s insurance coverage shall be primary.
7 .4 All required insurance policies shall be placed with insurers licensed to do
business in Florida and with a Best' s rating of A VII or better.
7 . 5 The insurance policies procured shall be occurrence forms , not claims made
policies with the exception of professional liability.
7 . 6 A certificate of insurance shall be provided to the County's Risk Manager for
review and approval , ten ( 10 ) days prior to commencement of any work under this
Agreement . The COUNTY shall be named as an additional insured on all policies except
workers' compensation and professional liability.
7 . 7 The insurance companies selected shall send written verification to the
County Risk Manager that they will provide 30 days prior written notice to the County Risk
Manager of its intent to cancel or modify any required policies of insurance .
7 . 8 Consultant shall include all sub-consultants as insured under its policies or
shall furnish separate certificates and endorsements for each sub-consultant. All
coverages for sub-consultants shall be subject to all of the requirements stated herein .
7 . 9 The COUNTY, by and through its Risk Manager, reserves the right
periodically to review any and all policies of insurance and reasonably to adjust the limits
of coverage required hereunder, from time to time throughout the term of this Agreement.
In such event , the COUNTY shall provide the Consultant with separate written notice of
such adjusted limits and Consultant shall comply within thirty (30 ) days of receipt thereof.
The failure by Consultant to provide such additional coverage shall constitute a default by
Consultant and shall be grounds for termination of this Agreement by the COUNTY.
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7 . 10 The Consultant shall indemnify and hold harmless the COUNTY , and its
officers and employees , from liabilities , damages , losses , and costs , including , but not
limited to, reasonable attorneys' fees , to the extent caused by the negligence ,
recklessness , or intentionally wrongful conduct of the Consultant and other persons
employed or utilized by the Consultant in the performance of this Agreement .
8 . TERMINATION .
8 . 1 This Agreement may be terminated : (a ) by the COUNTY, for any reason ,
upon thirty (30) days' prior written notice to the Consultant; or (b ) by the Consultant, for
any reason , upon thirty (30 ) days' prior written notice to the COUNTY; or (c) by the mutual
Agreement of the parties ; or d ) as may otherwise be provided below. In the event of the
termination of this Agreement , any liability of one party to the other arising out of any
Services rendered , or for any act or event occurring prior to the termination , shall not be
terminated or released .
8 . 2 In the event of termination by the COUNTY , the COUNTY's sole obligation to
the Consultant shall be payment for those portions of satisfactorily completed work
previously authorized by approved Work Order. Such payment shall be determined on the
basis of the hours of work performed by the Consultant, or the percentage of work
complete as estimated by the Consultant and agreed upon by the COUNTY up to the time
of termination . In the event of such termination , the COUNTY may, without penalty or
other obligation to the Consultant, elect to employ other persons to perform the same or
similar services .
8 . 3 The obligation to provide services under this Agreement may be terminated
by either party upon seven (7) days prior written notice in the event of substantial failure by
the other party to perform in accordance with the terms of this Agreement through no fault
of the terminating party.
8 .4 In the event that the Consultant merges with another company, becomes a
subsidiary of, or makes any other substantial change in structure , the COUNTY reserves
the right to terminate this Agreement in accordance with its terms .
8 . 5 In the event of termination of this Agreement, the Consultant agrees to
surrender any and all documents prepared by the Consultant for the COUNTY in
connection with this Agreement.
8 . 6 The COUNTY may terminate this Agreement for refusal by the Consultant to
allow public access to all documents , papers , letters , or other material subject to the
provisions of Florida Statutes Chapter 119 and made or received by the Consultant in
conjunction with this Agreement .
8 . 7 The COUNTY may terminate this Agreement in whole or in part if the
Consultant submits a false invoice to the COUNTY.
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9 . TRUTH -IN -NEGOTIATION CERTIFICATE ; CONTINGENCY FEES .
9 . 1 Execution of this Agreement by the Consultant shall act as the execution of a
truth- in- negotiation certificate certifying that the wage rates and costs used to determine
the compensation provided for in this Agreement are accurate , complete and current as of
the date of the Agreement and no higher than those charged the Consultant's most
favored customer for the same or substantially similar service . The wage rates and costs
shall be adjusted to exclude any significant sums should the COUNTY determine that the
wage rates and costs were increased due to inaccurate , incomplete or noncurrent wage
rates or due to inaccurate representations of fees paid to outside consultants . The
COUNTY shall exercise its rights under this "Certificate" within one ( 1 ) year following final
payment. COUNTY has the authority and right to audit Consultant's records under this
provision . The COUNTY does not hereby waive any other right it may have pursuant to
Section 287 . 055 , Florida Statutes , as it may be from time-to-time amended .
9 . 2 Pursuant to the Consultants' Competitive Negotiations Act, Florida Statutes
section 287 . 055 , the Consultant warrants that it has not employed or retained any
company or person other than a bona fide employee working solely for the Consultant to
solicit or secure this Agreement and that it has not paid or agreed to pay any company or
person other than a bona fide employee working solely for the Consultant any fee ,
commission , percentage fee , gifts or any other considerations , contingent upon or resulting
from the award or making of this contract. For breach of violation of this provision , the
COUNTY shall have the right to terminate this Agreement without liability and , at its
discretion , to deduct from the contract price , or otherwise recover, the full amount of such
fee , commission , percentage , gift, or consideration .
10 . MISCELLANOUS PROVISIONS .
10 . 1 Independent Contractor. It is specifically understood and acknowledged by
the parties hereto that the Consultant or employees or subconsultants of the Consultant
are in no way to be considered employees of the COUNTY, but are independent
contractors performing solely under the terms of the Agreement and not otherwise .
10 .2 Merger; Modification . This Agreement incorporates and includes all prior
and contemporaneous negotiations , correspondence , conversations , agreements or
understandings applicable to the matters contained herein and the parties agree that there
are no commitments , agreements , or understandings of any nature whatsoever concerning
the subject matter of the Agreement that are not contained in this document. Accordingly,
it is agreed that no deviation from the terms hereof shall be predicated upon any prior or
contemporaneous representations or agreements , whether oral or written . No alteration ,
change , or modification of the terms of this Agreement shall be valid unless made in
writing and signed by the Consultant and the COUNTY.
10 . 3 Governing Law; Venue . This Agreement , including all attachments hereto ,
shall be construed according to the laws of the State of Florida . Venue for any lawsuit
brought by either party against the other party or otherwise arising out of this Agreement
shall be in Indian River County, Florida , or, in the event of federal jurisdiction , in the United
States District Court for the Southern District of Florida .
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10 . 4 Remedies ; No Waiver. All remedies provided in this Agreement shall be
deemed cumulative and additional , and not in lieu or exclusive of each other or of any
other remedy available to either party, at law or in equity. Each right, power and remedy of
the parties provided for in this Agreement shall be cumulative and concurrent and shall be
in addition to every other right, power or remedy provided for in this Agreement or now or
hereafter existing at law or in equity or by statute or otherwise . The failure of either party
to insist upon compliance by the other party with any obligation , or exercise any remedy,
does not waive the right to so in the event of a continuing or subsequent delinquency or
default. A party' s waiver of one or more defaults does not constitute a waiver of any other
delinquency or default. If any legal action or other proceeding is brought for the
enforcement of this Agreement or because of an alleged dispute , breach , default or
misrepresentation in connection with any provisions of this Agreement , each party shall
bear its own costs .
10 . 5 Severability. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall , to any extent , be held invalid or unenforceable
for the remainder of this Agreement, then the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or unenforceable
shall not be affected , and every other term and provision of this Agreement shall be
deemed valid and enforceable to the extent permitted by law.
10 . 6 Availability of Funds. The obligations of the COUNTY under this Agreement
are subject to the availability of funds lawfully appropriated for its purpose by the Board of
County Commissioners of Indian River County.
10 . 7 No Pledge of Credit. The Consultant shall not pledge the COUNTY's credit
or make it a guarantor of payment or surety for any contract, debt , obligation , judgment ,
lien or any form of indebtedness .
10 . 8 Public Records . The Consultant shall comply with the provisions of Florida
Statutes Chapter 119 , ( Public Records Law) in connection with this Agreement.
10 . 9 Notices : Any notice , request, demand , consent, approval , or other
communication required or permitted by this Agreement shall be given or made in writing
and shall be served , as elected by the party giving such notice , by any of the following
methods : (a ) Hand delivery to the other party; ( b) Delivery by commercial overnight courier
service ; or (c) Mailed by registered or certified mail (postage prepaid ) , return receipt
requested at the addresses of the parties shown below:
County: Indian River County
Attn : Keith McCully, P . E
Capital Projects Manager
1840 25t ' Street
Vero Beach , FL 32960-3365
Telephone : (772 ) 226- 1562
Facsimile : (772 ) 778-9391
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Consultant : Malcolm Pirnie , Inc,
Attn : Victor A. Hurlburt, P . E .
2301 Maitland Center Parkway
Suite 425
Maitland , FL 32751
Telephone : (407 ) 660- 1133
Facsimile : (407 ) 660-9550
Notices shall be effective when received at the address as specified above .
Facsimile transmission is acceptable notice effective when received , provided , however,
that facsimile transmissions received (i . e . , printed ) after 5 : 00 p . m . or on weekends or
holidays , will be deemed received on the next day that is not a weekend day or a holiday.
The original of the notice must additionally be mailed . Either party may change its
address , for the purposes of this section , by written notice to the other party given in
accordance with the provisions of this section .
10 . 10 Survival . Except as otherwise expressly provided herein , each obligation in
this Agreement to be performed by Consultant , shall survive the termination or expiration
of this Agreement.
10 . 11 Construction . The headings of the sections of this Agreement are for the
purpose of convenience only, and shall not be deemed to expand , limit, or modify the
provisions contained in such Sections . All pronouns and any variations thereof shall be
deemed to refer to the masculine , feminine or neuter, singular or plural , as the identity of
the party or parties may require . The parties hereby acknowledge and agree that each
was properly represented by counsel and this Agreement was negotiated and drafted at
arm's-length so that the judicial rule of construction to the effect that a legal document shall
be construed against the draftsperson shall be inapplicable to this Agreement
10 . 12 Counterparts . This Agreement may be executed in one or more
counterparts , each of which shall be deemed to be an original copy and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first written above .
Consultan • MALCOLM PIRNIE , INC . INDIAN RIVER COUNTY
BOARD OF COUNT OMMISSIONERS
BY A 14 0 1B
(-
Printed Name: �� �, A . �U� A ur R . Neuber r, Chairm n,�,-F•
Title : .11co¢ AiA-nom
Date ApproY�ci by $ C>is 02 - 21 - 06
Attest J K Barton , Clergy
BY
De pUt E4&k
Approved :
oseph A . Baird
County Administrator
Approved as to form and legal
/. i ' ncy:
rian E . F
Assistant County Attorney
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EXHIBIT 1 to the AGREEMENT FOR PROFESSIONAL SERVICES
GENERAL DESCRIPTION OF THE PROJECT SCOPE
In 2004 , Hurricane Frances caused serious flooding damage to homes in the
Rockridge subdivision . The homes were flooded during the hurricane by storm
surges from the Indian River Lagoon . The Work under this Agreement includes
but may not be limited to professional land surveying , engineering design ,
permitting , bidding , and construction administration services for a flood protection
system for the Rockridge Subdivision , hereinafter referred to as the "Rockridge
Surge Protection Project. " Particular services are described in general detail
below:
1 . Perform initial land surveying services (vertical and horizontal ) as
necessary to allow the preparation of a Preliminary Engineering Design
Report.
2 . Prepare a Preliminary Engineering Design Report . Said report will provide
an analysis of the alternative recommended in the Rockridge Subdivision
Surge Protection Project — Hazard Mitigation Grant Program/Flood
Mitigation Assistance (HMGP/FMA) Application , prepared on May 2 , 20057
by PBS &J .
3 . Based on the results of the Preliminary Engineering Design Report ,
provide final land surveying services , prepare final construction drawings ,
bid documents , construction contract documents , and technical
specifications for the Rockridge Surge Protection Project. Also provide
related permitting and bidding services . Improvements include but may
not be limited to , the installation of one or more pump stations , weirs ,
gates , and jersey barriers installed at the inlets/outfalls or overflows into
the subdivision and sized based on a design flood elevation of no less
than 6 . 5 feet MSL (final design flood elevation to be selected by County) .
4 . Provide construction administration services , including construction
inspection services .
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n
EXHIBIT
STAFF CATEGORIES AND HOURLY BILLING RATES
Indian River County
Stormwater Engineering
Maximum Billing Rate represents the maximum hourly Dming rata uy emi ployee
classifications that may be billed on this Contract , over the duration of the
Contract. Therefore , these rates allow for salary escalation over time .
Maximum Billing
Staff Category Rate Per Hour
Project Officer $220
Princioal QA/QC $210
Sr. Project Manager $182
Project Mana er 5172
Sr. Proiect Engineer / Scientist 5142
Project Desian Engineer / Scientist $116
Design Engineer l Scientist $85
Sr. Technician $124
Technician $78
Clerical $70
[EXX H I BR If 11011
Contract Number: 06DB-3C-10-40-01 -W 14
CFDA Number: 14.228
FEDERALLY-FUNDED DISASTER RECOVERY SUBGRANT 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 Indian River County, (hereinafter referred to as the "Recipient").
THIS AGREEMENT IS ENTERED INTO BASED ON THE FOLLOWING REPRESENTATIONS:
A. WHEREAS , the Recipient represents that it is fully qualified and eligible to receive these grant
funds to provide the services identified herein; and
B. WHEREAS, the Department has received these grant funds from the U . S . Department of
Housing and Urban Development, and has the authority to subgrant these funds to the Recipient upon the
terms and conditions hereinafter set forth; and
C. WHEREAS , the Department has authority pursuant to Florida taw 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, the Activity Work Plan(s) by service area, Attachment B of this Agreement,
and the Grant Application , which was due on April 4 , 2005 , and submitted by the Recipient including
subsequent revisions that are mutually agreed to by both parties, which are incorporated herein by
reference ("the Grant Application").
(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 C.
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(3) PERIOD OF AGREEMENT.
This Agreement shall begin upon execution by both parties, and shall end twenty-four
(24) months after the last date signed, unless terminated earlier in accordance with the provisions of
Paragraph (10) of this Agreement. CONTRACT EXTENSIONS WILL NOT BE GRANTED UNLESS
RECIPIENT IS ABLE TO PROVIDE SUBSTANTIAL JUSTIFICATION AND THE DIVISION DIRECTOR
APPROVES SUCH EXTENSION.
(4) MODIFICATION OF CONTRACT
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.
(5) RECORDKEEPING
(a) As 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) The Recipient shall retain sufficient records demonstrating its compliance with
the terms of this Agreement, and the compliance of all subcontractors or consultants to be paid from
funds provided under this Agreement, for a period of five years from the date the audit report is issued,
and shall allow the Department or its designee, Chief Financial Officer, or Auditor General access to such
records upon request. The Recipient shall ensure that audit working papers are made available to the
Department or its designee, Chief Financial Officer, or Auditor General upon request for a period of five
years from the date the audit report is issued , unless extended in writing by the Department, with the
following exceptions:
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1 . If any litigation, claim or audit is started before the expiration of the five-year
period and extends beyond the five-year period , the records will be maintained until all litigation, claims or
audit findings. involving the records have been resolved.
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 five years after final disposition .
3. Records relating to real property acquisition shall be retained for five years
after closing of title.
(c) The Recipient shall maintain all records for the Recipient and for all
subcontractors or consultants to be paid from funds provided under this Agreement, including supporting
documentation of all program costs, in a form sufficient to determine compliance with the requirements
and objectives of the Budget and Scope of Work, Attachment A, Attachment B, Activity Work Plan(s) , the
Grant Application and subsequent revisions that are mutually agreed to by both parties, 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: b0 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.
(6) 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.
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(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) If the Recipient is a State or local government or.a non-profit organization as
defined in OMB Circular A-133, as revised, and in the event that the Recipient expends $500,000 or more
in Federal awards in its fiscal year, the Recipient must have a single or program-specific audit conducted
in accordance with the provisions of OMB Circular A-133, as revised. EXHIBIT 1 to this Agreement
indicates Federal resources awarded through the Department by this Agreement. In determining the
Federal awards expended in its fiscal year, the Recipient shall consider all sources of Federal awards,
including Federal resources received from the Department The determination of amounts of Federal
awards expended should be in accordance with the guidelines established by OMB Circular A-133 , as
revised. An audit of the Recipient conducted by the Auditor General in accordance with the provisions of
OMB Circular A-133, as revised, will meet the requirements of this paragraph.
In connection with the audit requirements addressed in Paragraph 6(d) above, the Recipient shall
fulfill the requirements relative to auditee responsibilities as provided in Subpart C of OMB Circular A-133,
as revised.
If the Recipient expends less than $500,000 in Federal awards in its fiscal year, an budit
conducted in accordance with the provisions of OMB Circular A-133, as revised , is not required. In the
event that the Recipient expends less than $500,000 in Federal awards in its fiscal year and elects to
have an audit conducted in accordance with the provisions of OMB Circular A-133, as revised, the cost of
the audit must be paid from non-Federal resources (i. e. , the cost of such audit must be paid from
Recipient resources obtained from other than Federal entities).
(e) Copies of reporting packages for audits conducted in accordance with OMB
Circular A-133, as revised , and required by subparagraph (d) above shall be submitted, when required by
Section .320 (d), OMB Circular A-133, as revised, by or on behalf of the Recipient directly to each of the
following:
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The Department of Community Affairs at each of the following addresses:
Department of Community Affairs
Office of Audit Services
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100 .
and
Department of Community Affairs
Small Cities Community Development Block Grant Program
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
The Federal Audit Clearinghouse designated in OMB Circular A-133 , as revised (the number of copies
required by Sections . 320(d)(1 ) and (2), OMB. Circular A-1 33, as revised, should be submitted to the
Federal Audit Clearinghouse) , at the following address:
Federal Audit Clearinghouse
Bureau of the Census
1201 East 10'" Street
Jeffersonville, IN 47132
Other Federal agencies and pass-throughentities in accordance with .Sections .320 (e) and (f), OMB
Circular A-133 , as revised .
(f) Pursuant to Section .320 (f), OMB Circular A-133, as revised , the Recipient shall
submit a copy of the reporting package described in Section .320 (c) , OMB Circular A-133, as revised,
and any management letter issued by the auditor, to the Department at each of the following addresses:
Department of Community Affairs
Office of Audit Services
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
and
Department of Community Affairs
Small Cities Community Development Block Grant Program
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
(g) Any reports, management letter, or other information required to be submitted to
the Department pursuant to this Agreement shall be submitted timely in accordance with OMB Circular
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A-133, Florida Statutes, and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-
profit organizations), Rules of the Auditor General, as applicable.
(h) Recipients, when submitting financial reporting packages to the Department for
audits done in accordance with OMB Circular A-133 or Chapters 10.550 (local governmental entities) or
10 .650 (nonprofit and for-profit organizations) , Rules of the Auditor General, should indicate the date that
the reporting package was delivered to the Recipient in correspondence accompanying the reporting
package.
(i) 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. i
(j) 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. The audit must be submitted to the Department no later than seven (7) months from the end of
the Recipient's fiscal year.
(7) REPORTS
(a) At a minimum, the Recipient shall provide the Department with quarterly
progress reports, and with a closeout report.
(b) Quarterly progress reports are due to be received by the Department no later
than fifteen .( 15) 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 15, June 15, September 15 and December 15.
(c) The closeout report is due forty-five (45) days after termination of this
Agreement or upon completion of the activities contained in this Agreement, whichever first occurs.
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(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 payments until they are completed or may take such other action as set forth in
Paragraph (11 ) REMEDIES. "Acceptable to the Department" means that the work product was
completed in accordance with the Budget and Scope of Work and the Activity Work Plan(s), Attachments
A and B of the Agreement, and the Grant Application and subsequent revisions that are mutually agreed
to by both parties.
(e) The Recipient shall provide such additional program updates or information as
may be required by the Department.
(f) The Recipient shall comply with the Environmental Assessment and Request for
Release of Funds process as set forth in 24 C. F. R. Part 58 within 90 days from the date of execution of
this Agreement.
(g) The Recipient shall provide additional reports and information as identified in
Attachment D.
(8) MONITORING.
The Recipient shall monitor its performance under this Agreement, as well as that of its
subcontractors, subrecipients, and consultants who are paid with funds under this Agreement, to ensure
that time schedules are met, the Budget, Scope of Work and Grant Application activities are
accomplished within the specified time periods, and other performance goals stated in this Agreement are
achieved . Such review shall be made for each function or activity set forth in Attachments A and B of this
Agreement and the Grant Application including subsequent revisions that are mutually agreed to by both
parties. .
i .
In addition to reviews of audits conducted in accordance with OMB Circular A- 133, as revised and
Section 215. 97, Fla. Stat. (see Paragraph (6) AUDIT REQUIREMENTS, above) , monitoring procedures
may include, but not be limited to, on-site visits by Department staff, limited scope audits as defined by
OMB Circular A-133, as revised, and/or other procedures. By entering into this Agreement, the Recipient
agrees to comply and cooperate with all monitoring procedures/processes deemed appropriate by the
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Department. In the event that the Department determines that a limited scope audit of the Recipient is
appropriate, the Recipient agrees to comply with any additional instructions provided by the Department
to the Recipient regarding such audit. The Recipient further agrees to comply and cooperate with any
inspections, reviews, investigations or audits deemed necessary by the Chief Financial Officer or Auditor
General . In addition, the Department will monitor the performance and financial management by the
Recipient throughout the contract term to ensure timely completion of all tasks.
(9) LIABILITY
(a) Unless Recipient is a State agency or subdivision, as defined in Section 768.28,
Fla. Stat. , the Recipient shall be solely responsible to parties with whom it shall deal in carrying out the
terms of this agreement, and shall hold 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. 282 Fla. Stat. , agrees to be fully responsible to the extent provided by Section 768. 28 Fla. Stat. 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. Nothing1herein 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.
( 1g} DEFAULT
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 in Paragraph 11 , 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:
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(a) 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 obligations, 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;
(b) If any material adverse change shall occur in the financial condition of the
Recipient at any time during the term of this Agreement, 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.
(c) If any reports required by this Agreement have not been submitted to the
Department or have been submitted with incorrect, incomplete or insufficient information;
(d) If the Recipient has failed to perform and complete in timely fashion any of its
obligations under this Agreement.
( 11 ) REMEDIES
Upon the happening of an Event of Default, then the Department may , at its option, upon
thirty (30) calendar days prior written notice to the Recipient and upon the Recipient's failure to cure within
said thirty (30) day period , exercise any one or more of the following remedies, either concurrently or
consecutively:
(a) 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 ( 13) herein ;
(b) Commence an appropriate legal or equitable action to enforce performance of
this Agreement;
(c) Withhold or suspend payment of all or any part of a request for payment;
(d) Exercise any corrective or remedial actions , to Include but not be limited to:
1 . requesting additional information from the Recipient to determine the
reasons for or the extent of non-compliance or tack of performance;
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2. issuing a written notice of noncompliance to advise that more serious
measures may be taken if the situation is not corrected ;
3. advising the Recipient to suspend , discontinue or refrain from incurring costs
for any activities in question; or
4. requiring the Recipient to reimburse the Department for the amount of costs
incurred for any items determined to be ineligible;
(e) Require that the Recipient return to the Department any funds which were used
for ineligible purposes under the program laws, rules and regulations governing the use of funds under
this program.
(f) Exercise any other rights or remedies which may be otherwise available
underlaw.
(g) The pursuit of any one of the above remedies shall not preclude the Department from
pursuing any other remedies contained herein or otherwise provided at law or in equity. 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.
( 12) TERMINATION
(a) 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 .
(b) The Department may terminate this Agreement when it determines, in its sole
discretion, that the continuation of the Agreement would not produce beneficial results commensurate
with the further expenditure of funds, by providing the Recipient with thirty (30) calendar days prior written
notice.
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(c) The parties may agree to terminate this Agreement for their mutual convenience
as evidenced by written amendment of this Agreement. The amendment shall establish the effective date
of the termination and the procedures for proper closeout of the Agreement.
(d) When this Agreement is terminated, the Recipient wilt. not incur new obligations
for the terminated portion of the Agreement after the Recipient has received the notification of termination .
The Recipient will cancel as many outstanding obligations as possible. Costs incurred after the date of
receipt of notice of the termination will be disallowed. 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.
( 13) 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 thiss Agreement
is:
Shannon Shiver
Department of Community Affairs
Small Cities Community Development Block Grant Program
Disaster Recovery Initiatives
2555 Shumard Oak Boulevard
Tallahassee , FL 32399-2100
- - Telephone: 850/410-0215
Fax: 850/922-5609
Email: shannon. shiver@dca. state.fl. us
(c) The name and address of the Representative of the Recipient responsible for
the administration of this Agreement is:
Robert M . Keating , Com . Dev . Dir .
1840 25th Street
Vern Beach FL 39960 - 3365
Telephone: 77Z - 226 - 1254
Fax: 772 - 978 - 1806
Email: hkenting(gircgov . com
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(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 ( 13)(a) above.
( 14) SUBCONTRACTS
If the Recipient subcontracts any or all of the work required under this Agreement, a copy
of the signed subcontract must be forwarded to the Department within ninety (90) days after execution of
the subcontract. The Recipient agrees to include in the subcontract that (i) the subcontractor is bound by
the terms of this Agreement to the extent applicable to the subcontract, (ii) the subcontractor is bound by
all applicable state and federal laws and regulations, and (iii) 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. Each
subcontractor's progress in performing its work under this Agreement shall be documented in the
quarterly report submitted by the Recipient.
( 15) TERMS AND CONDITIONS
This Agreement contains all the terms and conditions agreed upon by the partes.
( 16) 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:
Exhibit 1 - Funding Sources
Attachment A — Budget and Scope of Work
Attachment B — Activity Work Plan(s)
Attachment C — Program Statutes, Regulations and Program Conditions
Attachment D — Reporting Requirements
Attachment F — Warranties and Representations
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Attachment H — Certification Regarding Debarment, Suspension , Ineligibility
And Voluntary Exclusion
Attachment J — Special Conditions
Attachment K — FloridaPAPERS ID and Password Request Login Form
(17) FUNDING/CONSIDERATION
(a) The funding for this Agreement shall not exceed $7, 500,000 subject to the
availability of funds.
(b) The Recipient agrees to expend funds in accordance with the Budget and
Scope of Work, Attachment A of this Agreement, and the Grant Application including revisions.
(c) All funds shall be requested electronically through FloridaPAPERS.
The Recipient must complete a FloridaPAPERS ID and Password Request Login Form , Attachment K of
this Agreemenrt, identifying an individual authorized to submit a Request For Funds (RFFs) on behalf of
the Recipient utilizing the intuitive web portal.
(d) Pursuant to 24 C.F. R. Section 570.489(b), pre-agreement costs reflected in the
grant application as originally submitted that relate to preparation of the Grant Application are considered
eligible costs and may be reimbursed to the Recipient, if they are otherwise in compliance with all other
requirements of this contract.
(e) Funds expended for otherwise eligible activities prior to the effective date of
the Agreement, except for those provided for in this Agreement or prior to the effective date of the
enabling amendment wherein the Department agrees to their eligibility, fundability, or addition to the
Agreement, is ineligible for funding with Disaster funds.
If the necessary funds are not available to fund this . Agreement as a result of action by
Congress, the state Legislature, the Office of the Comptroller or the Office of Management and Budgeting,
all obligations on the part of the Department to make any further payment of funds hereunder shall
terminate, and the Recipient shall submit its closeout report within thirty (30) days of receipt of notice from
the Department.
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(18) REPAYMENTS
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
In accordance with Section 215 .34(2), Fla. Stat. , if a check or other draft is returned to the Department for
collection, the Department must add to the amount of the check or draft a service fee of Fifteen Dollars
($ 15.00) or Five Percent (5%) of the face amount of the check or draft, whichever is greater.
(19) 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.
(20) STANDARD CONDITIONS
- (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
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.
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(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) 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 seg. ), 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 following a
conviction for a public entity crime or on the discriminatory vendor list 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
list or on the discriminatory vendor list.
(g) 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 contractor,
supplier, subcontractor, or consultant under contract with any public entity, and may not transact business
with any public entity.
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(h) With respect to any Recipient which is not a local government or state agency,
and which receives funds under this Agreement from the federal government, by signing this Agreement,
the Recipient certifies, to the best of its knowledge and belief, that it and its principals:
1 . are not presently debarred , suspended , proposed for debarment,
declared ineligible, or voluntarily excluded from covered transactions by a federal department or agency;
2. have not, within a five-year period preceding this proposal been
convicted of or had a civiljudgment rendered against them for commission of fraud or a criminal offense
in connection with obtaining , attempting to obtain, or performing a public (federal, state or local)
transaction or contract under public transaction; violation of federal or state antitrust statutes or
commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
3. are not presently indicted or otherwise criminally or civilly charged by a
governmental entity (federal, state or local) with commission of any offenses enumerated in paragraph
18 (h)2. of this certification; and
4 . have not within a five-year period preceding this Agreement had one or
more public transactions (federal, state or local) terminated for cause or default.
Where the Recipient is unable to certify to any of the statements in this certification such
Recipient shall attach an explanation to this Agreement.
In addition, the Recipient shall submit to the Department (by email or by facsimile transmission)
the completed "Certification Regarding Debarment, Suspension, Ineligibility And Voluntary Exclusion"
(Attachment H) for each prospective subcontractor which Recipient intends to fund under this Agreement.
Such form must be received by the Department prior to the Recipient entering into a contract with any
prospective subcontractor. SUBMISSION OF ATTACHMENT H DOES NOT PRECLUDE THE
RECIPIENT'S COMPLETION AND SUBMISSION OF THE "BIDDING INFORMATION AND
CONTRACTOR ELIGIBILITY FORM."
16
(i) 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.
Q) All bills for fees or other compensation for services or expenses shall be
submitted in detail sufficient for a proper preaudit and postaudit thereof.
(k) If otherwise allowed under this Agreement, all bills for any travel expenses
Shall be submitted in accordance with Section 112.061 , Fla. Stat.
(1) 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.
(m) If the Recipient is allowed to temporarily invest any advances ofrfunds 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.
(n) 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 employment provisions
contained in Section 274A(e) of the INA shall be grounds for unilateral cancellation of this Agreement by
the Department.
(21 ) LOBBYING PROHIBITION
(a) 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.
(b) The Recipient certifies, by its signature to this Agreement, that to the best of his
or her knowledge and belief:
17
1 . 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 ofany 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.
2. 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.
3. 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 representation 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,
(22) COPYRIGHT PATENT AND TRADEMARK
ANY AND ALL PATENT RIGHTS ACCRUING UNDER OR IN CONNECTION WITH THE
PERFORMANCE OF THIS AGREEMENT ARE HEREBY RESERVED TO THE STATE OF FLORIDA.
ANY AND ALL COPYRIGHTS ACCRUING UNDER OR IN CONNECTION WITH THE PERFORMANCE
18
OF THIS AGREEMENT ARE HEREBY TRANSFERRED BY THE RECIPIENT TO THE STATE OF
FLORIDA.
(a) If the Recipient brings to the performance of this Agreement a pre-existing
patent or copyright, the Recipient shall retain all rights and entitlements to that pre-existing patent or
copyright unless the Agreement provides otherwise.
(b) If any discovery or invention arises or is developed In the course of or as a
result of work or services performed under this Agreement, or in any way connected herewith, the
Recipient shall refer the discovery or invention to the Department for a determination whether patent
protection will be sought in the name of the State of Florida. Any and all patent rights accruing under or in
connection with the performance of this Agreement are hereby reserved to the State of Florida. In the
event that any books, manuals, films, or other copyrightable material are produced, the Recipient shall
notify the Department. Any and all copyrights accruing under or in connection with the performance under
this Agreement are hereby transferred by the Recipient to the State of Florida.
(c) Within thirty (30) days of execution of this Agreement, the Recipient shall .
disclose all intellectual properties relevant to the performance of this Agreement, which he or she knows
or should know, could give rise to a patent or copyright. The Recipient shall retain all rights and
entitlements to any pre-existing intellectual property which is so disclosed . Failure to disclose will indicate
that no such property exists. The Department shall then , under Paragraph (b) , have the right to all
patents and copyrights which accrue during performance of the Agreement.
(23) 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.
19
(24) ASSURANCES.
The Recipient shall comply with any Statement of Assurances incorporated as
Attachment I.
IN WITNESS WHEREOF, the parties. hereto have caused this contract to be executedby their
undersigned officials as duly authorized .
RECIPIENT:
Indian R' er u ty
BY:
Nameandtitle: Robert t munity Development Director
Date: 7 / 6 / 05
FID#: 596000674
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
BY:
Name and Title : Janice Browning Director
Division of Housing and Community Development
Date:
20
EXHIBIT 1
Federal Resources awarded to the Recipient pursuant to this Agreement consist of the
following:
Federal Program: U.S . Department of Housing and Urban Development
CFDA # 14.228 $7,500,000
Compliance requirements applicable to the federal resources awarded pursuant to this
Agreement are as follows:
Note• If the resources awarded to the recipient represent more than one Federal program, list
applicable compliance requirements for each Federal program in the same manner. as shown
below.
Federal Program:
The Recipient will fully perform the obligations in accordance with the Budget and Scope
of Work, Attachments A and B of this Agreement and the Application incorporated
herein by reference.
The Recipient shall be governed by applicable State and Federal laws, rules and .
regulations, including but not limited to those identified in Attachment C .
Note: Section .400(d) of OMB Circular A-133, as revised, and Section 215.97(5)(a), Florida
Statutes, require that the information about Federal programs and State projects included
in Exhibit 1 be provided to the Recipient.
21
RECIPIENT: Indian River County CONTRACT #:06DB-3C-10-40-01 -W 14
ATTACHMENT A - DISASTER RECOVERY INITIATIVE PROGRAM
PROGRAM BUDGET AND SCOPE OF WORK SUMMARY PAGE
1 2 3 4 5 7 8 9 10 11
ACTIVITY - ACCOMPLISHMENTS BENEFICIARIES BUDGET
NATL.
NUMBER DESCRIPTION UNIT NUMBER LMI TOTAL CDBGAMOUNT 'OTHER FUNDS 'SOURCE # OBJECTIVE
21A ADMINISTRATION $562,500.00
21B ENGINEERING
$10125,000.00
031 Flood & Drainage Facilities 2 1 ,049 1 ,667 $1 ,900,000.00 $1 ,185,000.00 1
03J Sewer Facilities LF 21 ,500 $1 ,619,500.00 $1 ,505,500.00 . 2
03J Potable Water Lines LF 7,050 916 1 ,592 $825,000.00
030 Fire Station Rehab Building 1 5,328 10,802 $210,000.00 $45,998.00 3
030 Fire Station Replacement Buildin 1 10,190 25,669 $1 ,200,000.00 $88,315.00 3
030 Fire Station Rehab Building 1 1 ,289 3,331 $58,000.00 $6,918.00 3
TOTALS 28,555 18,772 43,061 $7,500,000.00 $2,831 ,731 .00
SOURCES AND AMOUNTS OF "OTHER FUNDS" (COLUMNS 9 AND 10 ABOVE)
1 Local Gov't Reserves/FEMA/Private Contributions $1 , 185,000.00 5
----------- ---—---------------------------------------- --------- ---- —' --$---------------------------
2 Local Govt Reserves/FEMA/Utilities Reserve $ 1 ,505,500.00 6 $
---------------------'------------------------------` ------------ --- --------' -------- -----------------------------
3 Insurance/Local Gov't Reserves/FEMA $ 141231 .00 7 $
- -------------------------------------------- ---------------------------
4 '-------------------------------- ----' $----------------------- 8 •----------------------' $
Indian River County
06D6-3C-10-40-01 -W 14
ATTACHMENT A - DISASTER RECOVERY INITIATIVE PROGRAM
PROGRAM BUDGET AND SCOPE OF WORK: SA 1 - Rockridge Subdivision Surge/Flood Protection
1 2 3 4 5 7 8 9 10 11
ACTIVITY ACCOMPLISHMENTS BENEFICIARIES BUDGET
RATL
NUMBER DESCRIPTION UNIT NUMBER - LMI TOTAL CDBG AMOUNT FOTHER FUNDS `SOURCE # OBJECTIVE
031 Flood & Drainage Facilities 2 11049 1 ,667 $1 ,900,000.00 $1 , 185,000.00 1 LMI
TOTALS 2 1 ,049 1 ,667 $1 ,900,000.00 $1 ,185,000.00
• SOURCES AND AMOUNTS OF "OTHER FUNDS" (COLUMNS 9 AND 10 ABOVE)
1 Local Gov't Reserves/FEMA/Private Contributions $1185 000.00 5
----------------------------
g
Indian River County
06DB-3C-10-40-01 -W 14 -
ATTACHMENT A - DISASTER RECOVERY INITIATIVE PROGRAM
PROGRAM BUDGET AND SCOPE OF WORK: SA 2 - Rockridge Subdivision Sanitary Sewer
1 2 3 4 5 7 8 9 10 11
ACTIVITY ACCOMPLISHMENTS BENEFICIARIES BUDGET
NUMBER DESCRIPTION UNIT NUMBER LMI TOTAL CDBGAMOUNT 'OTHER FUNDS 'SOURCE # OBJECTIVE
03J Sewer Facilities LF 21 ,500 1 , 049 1 ,667 $1 ,619,500.00 $1 ,505,500.00 2 LMI
TOTALS 21 ,500 1 ,049 1 ,667 $1 ,619,500.00 $1 ,505,500.00
SOURCES AND AMOUNTS OF "OTHER FUNDS" (COLUMNS 9 AND 10 ABOVE)
1 -----"---------—---— -------- ------
2 Logl Gov't Reserves/FEMAAItilities Reserve -�-------------'---"
3 ----------------------- $1 ,5---- 00 6
4 ---------- ------- ------ - $
$
Indian River County 06DB-3C-10-40-01 -W 14
ATTACHMENT - DISASTER RECOVERY INITIATIVE PROGRAM
PROGRAM BUDGET AND SCOPE OF WORK: SA 3 - West Wabasso Water Line Extension
1 2 3 4 5 7 8 9 10 11
ACTIVITY ACCOMPLISHMENTS BENEFICIARIES BUDGET
NATL.
NUMBER DESCRIPTION UNIT NUMBER UMI TOTAL CDBGAMOUNT 'OTHERFUNDS `SOURCE # OBJECTIVE
03J Potable Water Lines LF 7,050 916 11592 $825,000.00 LMI
TOTALS 7,050 916 1 ,592 $825,000.00 . $0.00
• SOURCES AND AMOUNTS OF "OTHER FUNDS" (COLUMNS 9 AND 10 ABOVE)
1
3 ------------------------ --- -- .
---------------------
'--------------------- -----------------------------
4 ---------------------------------------=-
8
---------------------
-- -------------------------------------------------
Indian River County .
O6DB-3C-10-40-01 -W 14
ATTACHMENT A - DISASTER RECOVERY INITIATIVE PROGRAM
PROGRAM BUDGET AND SCOPE OF WORK: SA 4 - Fire Station #3
1 2 3 4 5 - 7 8 9 10 11
ACTIVITY ACCOMPLISHMENTS BENEFICIARIES BUDGET
NATL.
NUMBER DESCRIPTION UNIT NUMBER LMI TOTAL CDBG AMOUNT 'OTHERFUNDS 'SOURCE # OBJECTIVE
030 Fire Station Rehab Building 1 - 5,328 10,802 $210,000.00 $45,998.00 3 Urgent Need
TOTALS 1 5,328 10,802 $210,000.00 $45,998.00
' SOURCES AND AMOUNTS OF "OTHER FUNDS" (COLUMNS 9 AND 10 ABOVE)
1
2 ------------------------------------------------------ ------------------------- 5
5
3 lnsura--- $45,998.00 7
--------------------------------
--------------------- $ - -
Indian River County
0668-3C-10-40-01-W 14
ATTACHMENT A - DISASTER RECOVERY INITIATIVE PROGRAM
PROGRAM BUDGET AND SCOPE OF WORK: SA 5 . Fire Station #4
1 2 3 4 5 7 8 9 10 11 ,
ACTIVITY ACCOMPLISHMENTS BENEFICIARIES BUDGET
NATL.
NUMBER DESCRIPTION UNIT NUMBER LMI TOTAL CDBG AMOUNT `OTHER FUNDS `SOURCE # OBJECTIVE
030 Fire Station Replacement Building 1 10, 190 25,669 $1 ,200,000.00 . $68,315.00 4 Urgent Need-
TOTALS 1 10,190 25,669 $1 ,200,000.00 $68,315.00
" SOURCES AND AMOUNTS OF "OTHER FUNDS" (COLUMNS 9 AND 10 ABOVE)
1
2 ------------------------ ---------------------- 5
_
------------------------------------------------ ------------------------
7 ------------------ •--- --
-------Gov't Res -------- MA----------- ------------ 88,315..00- ---------------------- $
4 Insurance/Looal Gov't Reserves-FEMA -- ------------------------------
---------------8,315_00 8 ---------------------- $ -
Indian River County
- 06DB-3C-1040-01-W 14
ATTACHMENT A - DISASTER RECOVERY INITIATIVE PROGRAM
PROGRAM BUDGET AND SCOPE OF WORK: SA 6 . Fire Station #10
1 2 3 4 5 7 8 9 10 11
ACTIVITY ACCOMPLISHMENTS BENEFICIARIES BUDGET
NUMBER DESCRIPTIONNATL.
UNIT NUMBER LMI TOTAL CDBGAMOUNT 'OTHERFUNDS `SOURCE # OBJECTIVE
030 Fire Station Rehab Building 1 1 ,289 3,331 $58,000.00 $6,918.00 3 Urgent Need
TOTALS 1 1 ,289 - 3,331 $58,000.00 $6,918.00
SOURCES AND AMOUNTS OF "OTHER FUNDS" (COLUMNS9 AND 10 ABOVE) -
1
2 ------------------------------ 5
3lnsurance ------— 18.00 ------ .
-------------------------------------------------
4 ------------- 6.918_00 8 -------------------- $
---- --------------
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Attachment C
State and Federal Statutes, Regulations and Program Conditions
By signature of this Agreement, the local government. hereby certifies that it will comply with the following
applicable federal and state requirements: .
Section I : State and Federal Statutes and Regulations
1 . Community Development Block Grant, Final Rule, 24 35. Protection of Historic and Cultural Properties under
C.F.R., Part 570; HUD Programs, 24 C.F.R. Part 59;
2. Florida Small and Minority Business Act, s. 288.702-
288.714, F.S.; 36. Coastal Zone Management Act of 1972, P.L. 92-583;
3. Florida Coastal Zone Protection Act, s. 161 .52161 .58, 37. - Architectural and Construction Standards;
F.S.; 38. Architectural Barriers Act of 1968, 42 U.S.C. 4151 ;
4. Local Government Comprehensive Planning and Land 39. Executive Order 11296, relating to evaluation of flood
Development Regulation Act. Ch. 163, F.S.; hazards;
5. Title I of the Housing and Community Development Act 40. Executive Order 11288, relating to prevention, control
of 1974, as amended and abatement of water pollution;
6. Treasury Circular 1075 regarding drawdown of CDBG 41 . Cost-Effective Energy Conservation Standards, 24
funds C.F. R.
7. Sections 290.0401 -290.049, F.S.; Part 39;
B. Rule Chapter 96-43, Fla. Admin, Code.; 42. Section 8 Existing Housing Quality Standards, 24
9. Department of Community Affairs Technical C.F.R.
Memorandums; - Part 882;
10. HUD Circular Memorandums applicable to the Small 43. Coastal Barrier Resource Act of 1982;
Cities CDBG Program; . 44. Federal Fair Labor Standards Act, 29 U. S.C. , s. 201 at.
11 Single Audit Act of 1984; seq.;
12. National Environmental Policy Act of 1969 and other 45. Title VI of the Civil Rights Act of 1964 - Non-
provisions of:law which furtherthe purpose of this Act; discrimination; _
13. National Historic Preservation Act of 1966 (Public 46. . Title VII of the Civil Rights Act of 1968 Non-
Law89-665) discrimination in housing; .
as amended and Protection of Historic Properties (24 47. Age Discrimination Act of 1975:
C.F.R. Part 800); 48. Executive Order 12892- Fair Housing
14. Preservation of Archaeological and Historical Data Act 49. Section 109 of the Housing and Community
of 1966; Development Act of 1974, Nan-discrimination;
15. Executive Order 11593 - Protection and Enhancement 50. Section 504 of the Rehabilitation Act of 1973 and 24
of Cultural Environment; C.F.R. 1
16. Reservoir Salvage Act; Part 8;
17. Safe Drinking Water Act of 1974, as amended; 51 . Executive Order 11063 - Equal Opportunity in
18. Endangered Species Act of 1958, as amended; Housing;
19. Executive Order 12898 - Environmental Justice 52. Executive Order 11246 - Non-discrimination;
20. Executive Order 11988 and 24 C.F,R. Part 55 - 53. Section 3 of the Housing and Urban Development Act
Floodplain Management; of 1968, as amended - Employment/Training of Lower
21 . The Federal Water Pollution Control Act of 1972, as Income Residents and Local Business Contracting;
amended (33 U .S.C., s. 1251 etseq.); 54. Uniform Relocation Assistance and Real Property
22. Executive Order 11990 - Protection of Wetlands; Acquisition Policies Act of 1970. P.L., 100-17, and 49
23. Coastal Zone Management Act of 1968, as amended; C.F.R. Part 24;
. . . 24. Wild and Scenic,Rivers Act of 1968, as amended; 55. Copeland Anti-Kickback Act of 1934;
25. Clean Air Act of 1977; 56. . Hatch Act;
26. HUD Environmental Standards (24 C.F.R. Part 58); 57. Title IV Lead-Based Paint Poisoning Prevention Act
27. Farmland Protection Policy Act of 1981 ; - '(42 U.S.C., s. 1251 el. seq.);
28. Clean Water Act of 1977; 58. OMSCirculars A-87, A-122, and A-133, as revised;
29. Davis - Bacon Act; 59. Adminlstrative Requirements for Grants, 24 C.F.R.
30. Contract Work Hours and Safety Standards Act of Part 85;
1962, 40 U.S.C. s. 327 et seq.; 60. Section 102 of the Department of Housing and Urban
31 . The Wildlife Coordination Act of 1958, as amended; Development Reform Act of 1989 and 24 C.F.R. Part
32. The Solid Waste Disposal Act, as amended by the 12;
Resource Conservation and Recovery Act of 1975 (42 61 . Emergency Rule 9BER05-2, CDBG Disaster Recovery
U.S.C., s. 6901 at. seq.); Funds;
33. Noise Abatement and Control: Departmental Policy 62. HUD program requirements for disaster recovery
Implementation, Responsibilities, and Standards, 24 projects as published In Federal Register, Vol. 69,
C. F.R. Part 51 , Subpart B; No. 237 (December 10, 2004) [Docket No. FR-4959 -
34. Flood Disaster Protection Act of 1973, P.L. 92-234; N-011.
24
i
Section II : Program Conditions - Disaster Recovery Initiative Program
1 . Prior to the obligation or disbursement of any funds, except for administrative expenses not to
exceed Fifteen Thousand Dollars ($ 15, 000) , but in any case, no later than ninety-days (90) from the
effective date of this Agreement, the Recipient shall complete the following:
a. Comply with procedures set forth in 24 C. F. R. Part 58, Environmental Review
Procedures for Title I Community Development Block Grant Programs and 40 C. F. R. Section
1500-1508, National Environmental Policy Act Regulations. When this condition has been
fulfilled to the satisfaction of the Department, the Department will issue a Notice of Removal of
Environmental Conditions;
b. If special assessments or impact fees are to be charged to each household that is to be
hooked up to the sewage system, document the source of those funds and that they are
dedicated to the project for the purpose of funding said special assessments or impact fees;
C. The Recipient shall not enter into a contract to be paid with Disaster funds based on a
sole source or single proposal procurement action without prior written approval from the
Department. Failure to secure the prior written approval shall relieve the Department of any
obligation to fund the said procurement contract. Any previous payments to the Recipient to fund
said contract shall be ineligible and shall be repaid to the Department by the Recipient; and
d. The documentation required in paragraph 3 below for any professional services contract
procured prior to the start date of this agreement.
e. Submit to the Department copies of all adopted required policies not provided at the time
of original Application, which the Recipient certified would be adopted . Also, unless submitted
with the grant application or reviewed at the site. visit and determined to be acceptable; submit an
executed copy of the required inter-local Agreement if more than one local government is covered
by this contract.
2 . For each procured and executed professional services contract for which Disaster funding will be
requested, or within five (5) days of the execution of any yet to be procured professional services for
which Disaster funding will be requested, submit a copy of the following procurement documents:
a. Public notice of the terms of the request for proposals in a newspaper of regional
circulation , including affidavit of publication;
b. List of entities to whom a notificgtion of the request for proposals was provided by mail or
by fax;
C. _ . List of firms that submitted a proposal (only if short-listing procedure was used);
d. ' Completed short-listing evaluation / ranking. forms, including any ranking summary
document, and document transmitting the short-listed firms to the commission (only if short-listing
procedure used);
e. Completed final evaluation / ranking forms;
f. Portion of commission minutes dealing with contract award;
9. Cost breakout from selected firm used for completion of the cost analysis (if pricing
information was not submitted with proposals);
25
h. Contract (signed or proposed);
I. Truth-in-Negotiation certification (if not in the contract) for engineering contracts over
$60, 000;
j . If a protest was filed, a copy of the protest and documentation of resolution;
k. A request for the, Department's approval of a single source procurement if only one firm
was Considered and the contract exceeds $25,000;
I. If a regional planning council or local government is performing the services, submit only
a copy of the contract and cost analysis information ; and
M. If professional services procurement will not be undertaken, so advise the Department.
3. For any activity that requires construction plans and specifications prepared by an engineer or
architect:
a. Provide to the Department a copy of all engineering specifications and construction
plans. The Recipient shall also furnish the Department, prior to soliciting bids or proposals, a
copy of all bid documents for all services and/or materials to provide those services and/or
materials for all construction activities when the bids are expected to exceed $25, 000. These
submissions are for the limited purpose of identifying the extent of the activities to be
accomplished with Disaster funds under this Agreement, and inclusion of program requirements,
and in no way does it indicate that the Department has conducted a technical review of, or
approved the plans or other bidding documents;
b. The Recipient shall not publicize any request for bids for construction purposes or
distribute bid packages until the Department has provided to the Recipient, written
acceptance of the engineering specifications, construction plans, and bid documents; and
C. In any service area which requires construction plans and specifications prepared by an
engineer or architect, no more than twenty-five percent (25%) of the grant administration
amount allocable to that service area may be requested until the construction plans and
specifications for that service area have been received for review by the Department. For
the purpose of this condition, the allocable grant administration amount for each service
area is calculated by first determining each service area's percentage of total project
costs, excluding administrative costs, and then multiplying the service area's percentage
of total project costs by the total administrative budget. This calculation results in a
percentage of total administrativg costs per service area based on each service areas
percentage of the grants total project costs, excluding administrative costs.
4. For. activities requiring acquisition of property, the Recipient shall:
a. Should the Recipient be undertaking any. acfivity.subject to the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) , as amended ,
and Disaster funds willotot be used for the cost of acquisition, the Recipient shall document
completion of the acquisition by submitting all documentation required for a desk monitoring of
the acquisition, including notice to the property owner of their rights under URA, invitation to
accompany the appraiser, all appraisals, offer to the owner, acceptance, contract for sale,
statement of settlement costs, copy of deed , waiver of rights (for donations), as applicable. The
documentation shall be submitted within 45 days of acquiring the property and prior to advertising
for construction bids for any activity that required the acquisition.
26
i
b. Should the Recipient be undertaking any activity subject to the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA), as amended,
and Disaster funds will be used for the cost of acquisition, the Recipient shall document
completion of all pre-acquisition activities by submitting all documentation required for a desk
monitoring of those activities, Including notice to the property owner of their rights under URA,
invitation to accompany the appraiser, all appraisals, offer to the owner, acceptance, contract for
sale, waiver of rights (for donations), . and estimated settlement costs, as applicable. The
documentation shall be submitted to the Department for review prior to closing on the property. A
copy of the final statement of settlement costs and a copy of recorded deed, with any required
deed restrictions, shall be submitted within 45 days of the acquisition.
5. If the project involves installation of new sewer lines, or a new sewer treatment
plant funded (partially or wholly) from Disaster funds and new sewer lines funded by another source, the
Recipient shall document notification to appropriate households of the requirement in Section
381 . 00655( 1 ), Fla. Stat. (1995) to hookup to the sewer system within 365 days of its availability. (Note
that the notification is to be provided at least one year prior to the anticipated availability of the system.)
6. The Recipient shall obtain approval from the Department prior to obligating Disaster funds for
any engineering activities and costs related thereto under the Rural Utilities Service (RUS) engineering
fee schedule. The Department will not reimburse or fund engineering activities or costs that are not
eligible under the RUS fee schedule and Emergency Rule 9BER05-2 CDBG Disaster Recovery Funds.
7. The Recipient, by executing this Agreement, does thereby certify that program income received
and retained by the local government before closeout of the grant will be used to continue grant activities
in compliance with all applicable requirements of 25 C . F. R. Section 570.489(e). The. amount of program
income earned and expended must be reported to the Department on a quarterly basis. Quarterly
progress 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 .
1
8. The Recipient shall annually undertake an activity to affirmatively further fair housing pursuant to
24 C. F. R. Section 570.487(b)(4). Annually shall be defined as an activity for each year or one-third
thereof from the effective date of the contract to the date of submission of the administrative closeout.
9. A deed restriction shall be recorded on any real property or facility acquired with Disaster funds.
This restriction shall limit the use of that real property or facility to the use stated in the Application and
that title shall remain in the name of the Recipient. Such deed shall be made a part of the public records
in the Clerk of Court of the County in which the Recipient is located. Any future disposition of that real
property shall be in accordance with 24 C. F. R. Section 85. 31 . Any future change of use shall be in
accordance with 24 C . F. R. Section 570.4890).
10. The Recipient shall conduct all public hearings relating to this Agreement and performance
hereunder in a location that is accessible to physically handicapped persons or make such
accommodations as necessary to provide for active participation of handicapped persons desirous of
attending such public hearings.
11 . All amendments to the activities contained in the application, including proposed new activities
must be approved by the Department in writing prior to the date of initiation of that activity or the
execution of any contract with any third party relating to such activity. The Department reserves the right
27
a
to require that deletion of an activity meeting the LMI national objective be replaced with another activity
meeting the LMI national objective.
12. The Recipient shall update and submit Form HUD 2880 to the Department within 30 days of the
Recipient's knowledge of changes in situations which would require that updates be prepared. A final
Form HUD 2880 shall be provided to the Department with the request for administrative closeout, and its
absence or incompleteness shall be cause for rejection of the administrative closeout and assessment of
any penalties which otherwise would have occurred .
13. The Recipient shall comply with the historic preservation requirements of 24 C. F. R . 58. 17 and the
Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings.
14. Conflicts of interest relating to procurement shall be addressed pursuant to 24 C. F. R. Section
570.489(g). Conflicts of interest relating to acquisition or disposition of real property; Disaster financial
assistance to beneficiaries, businesses, or other third parties; or any other financial interest, whether real
or perceived, shall be addressed pursuant to 24 C. F.R. Section 570.489(h). All procurement actions shall
be conducted pursuant to 24 C. F. R. Section 85.36 and Rule 96-43, Fla Admin. Code.
15. The Recipient shall maintain records of its expenditure of funds from all sources that will allow
accurate and ready comparison between the expenditures and the contracted budget line items by
service area contracted activity as defined on Attachment A and on the Activity Work Plan(s).
16. If an activity is designed by an engineer, architect, or other licensed professional, it shall be
certified upon completion by a licensed professional as meeting the specifications of the design, as may
have been amended by change orders. The date of completion of construction shall be noted as part of
the certification. This certification shall be accomplished prior to submission of an administrative closeout
package, and a copy of the certification shall be submitted with the administrative closeout package.
17. Payment for the acquisition of property, right-of-way, . or easement must be approved in writing by
the Department prior to distribution of funds. Should the Recipient fail to obtain Department approval, any
portion of the cost of the acquisition exceeding Fair Market Value as established in HUD Handbook 1378
shall not be paid with Disaster funds.
18. If, as a result of a site visit, the Department identifies any issues affecting the eligibility for funding
any activity in the application , the local government shall provide information necessary to establish
eligibility for the activity under the Disaster Recovery initiative program requirements or replace the
activity with a new activity meeting such requirements, within the provisions of Program Condition
Number 10.
19. Any debris removal on private property approved by the Department as a result of a HUD waiver
will be treated as "direct benefit" and the project file shall document that the property owner qualifies as a
low or moderate income ( LMI) person. If documentation that the person qualifies as an LMI person is not
provided; then, the cost of debris removal is not allowed ,
20. Following demolition of a structure on private property, the local government shall place 'a lien
against the real property for the cost of demolition. If the lien is not recorded against the real property,
then the demolition cost is not an eligible cost under the grant. A lien is not required when the demolition
is needed for residential reconstruction completed during the sub-grant period. A copy of the lien shall be
maintained in the project files. When the lien is paid, the funds shall be treated as program income in
accordance with CDBG regulations in in 24 CFR 570.
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21 . For any activity performed as an "urgent need," the project files shall document that the activity
meets the requirements of 24 CFR 570.483 (d) to qualify under the "urgent need" national objective. For
these disaster recovery funds, the " threat to health or welfare" portion of the requirements may be
established in the context of the 2004 hurricane season damage.
22. If grant funds are used for acquisition of property for, or infrastructure in support of, LMI housing
construction, construction of the housing must be completed and LMI benefit documented during the sub-
grant period.
23. If grant funds are used for "slum and blight," the project files shall document that the activity took
place in an area officially designated as a "slum" or "blighted" area and meets HUD requirements for
"slum and blight" national objective, or that the activity qualifies under HUD requirements for "spot blight."
24. If grant funds are used for acquisition, the requirements of 24 CFR 570. 83 (e) (2) regarding final
use or disposition shall be met.
25. For any construction contract that requires payment of prevailing wages under the Davis-Bacon
and Related Acts (DBRA), the Recipient shall take the following actions so that the Department may meet
its DBRA tracking and reporting requirements to HUD for these funds:
a. Obtain a wage decision from the Department using its Wage Decision Request form or a
similar document with the same information; and
b. Prior to awarding the construction contract, submit the Bidding Information and
Contractor Eligibility form, or document with the same information , and obtain the Department's
confirmation that the contractor is not excluded from participation in federally funded projects.
26 If any funds are used for housing rehabilitation, the project files shall document that, following
completion of each home, all code violations have beeh .corrected and the home meets Section 8.
Housing Quality Standards.
27. Within thirty (30) days of execution of any construction contract between the Recipient and a
contractor, all construction contractors shall provide a schedule for completion of work activities under
that construction contract.
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28. Pursuant to Federal RegisterNolume 69, Number 237 [Docket Number FR-4959-N-01 ] and the
Robert T. Stafford Disaster Assistance and Emergency Relief Act (42 U . S.C. 5155), no activity may
receive assistance from these funds with respect to any cost that is reimbursable by FEMA, eligible for
Small Business Administration assistance or from any other program, insurance or any other sources.
The Recipient's project files shall document how compliance with this prohibition on duplication of
benefits was determined for each activity, including sub-recipients and , for housing or other direct benefit
activity, individual beneficiaries. Duplication of benefits identified during monitoring, by an audit, or other
means may .require repayment of duplication of benefit funds.
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Attachment D
Reporting Requirements
The following reports must be completed and submitted to the Department in the time frame
indicated. Failure to timely file these reports constitutes an event of default, as defined in Paragraph ( 10)
of this Agreement.
1 . The Contractual Obligation and MBE Report must be submitted to the Department by
April 15 and October 15 annually. The form must reflect all contractual activity for the period. If
no activity has taken place during the reporting period, the form must indicate "no activity".
2. The Request for Funds (RFF) Form must be submitted to the Department electronically
at a minimum of once per quarter. If no activity has taken place during the reporting period for
which funds will be requested, the form must indicate, "no funds are required". A breakout of
expenditures by service area must be submitted that supports expenditures reflected on the
RFF. These service area breakouts must be received and reviewed prior to approving the RFF
for processing .
3. The Projection of Contract Payments and Report on Accomplishments To Date Form
must be submitted to the Department (4) times a year: May 1 , August 1 , November 1 and
February 1 . In Section I Funding Projection , indicate the amount of funds that will be required for
the applicable reporting period. If no funds will be required, a zero should be reflected in the
applicable reporting period . In Section It Accomplishments; all accomplishments must be
reported from implementation to date of report.
4. The Project Generated Income Report, if applicable, must be submitted to the
Department on a quarterly basis on the form provided by the Department. The form must reflect
all earned or expended income and show the available balance as of the end of the reporting
period.
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Attachment F
Warranties and Representations
Financial Management
Recipient's financial management system shall provide for the following:
( t ) Accurate, current and complete disclosure of the financial results of this project or program
(2) Records that adequately identify the source and application of funds for all activities. These
records shall contain information pertaining to grant awards, authorizations, obligations,
unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds, property and other assets. Recipient
shall adequately safeguard all such assets and assure that they are used solely for
authorized purposes.
(4) Written procedures for determining the reasonableness, allocability and allowability of costs
in accordance with the provisions. of the applicable cost principles and the terms and
conditions of this grant.
(5) Accounting records, including cost accounting records that are supported by source
documentation .
Competition .
All procurement transactions shall be conducted in a manner to provide, to the maximum extent practical,
open and free competition. The Recipient shall be alert to conflicts of interest as well as noncompetitive .
practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order
to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that
develop or draft specifications, requirements, statements of work, invitations for bids and/or requests for
proposals shall be excluded from competing for such procurements. Awards shall be made to the bidder
or offeror whose bid or offer is responsive to the solicitation and is most advantageous to the Recipient,
price, quality and other factors considered . Solicitations shall clearly set forth all requirement§ that the
bidder or offeror shall fulfill in order for the bid or offer to be evaluated by the Recipient. Any and all bids
or offers may be rejected when it is in the Recipient's interest to do so.
Codes of Conduct
The Recipient shall maintain written standards of conduct governing the performance of its employees
engaged in the award and administration of contracts. No employee, officer, or agent shall participate in
the selection, award, or administration of a contract supported by public grant funds if a real or apparent
conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent,.
any member of his or her immediate family, his or her partner, or an organization which employs or is
about to employ any of the parties 'indicated herein , has a financial or other interest in the firm selected for
an award. The officers, employees, and agents of the Recipient shall neither solicit nor accept gratuities,
favors, or anything of monetary value from contractors, or parties to subcontracts. The standards of
conduct shall provide for disciplinary actions to be applied for violations of such standards by officers,
employees, or agents of the recipient.
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Business Hours
The Recipient shall have its offices open for business, with the entrance door open to the public, and at
least one employee on site, from 9:00 A. M. to 5:00 P.M.
Licensing and Permitting
All subcontractors or employees hired by the Recipient shall have all current licenses and permits
required for all of the particular work for which they are hired.
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Attachment H
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Contractor Covered Transactions
(1 ) The prospective contractor of the Recipient, Indian River County, certifies, by submission of this
document, that neither it nor its principals is presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) Where the Recipient's contractor is unable to certify to the above statement, the prospective
contractor shall attach an explanation to this form.
Indian River County
Contractor's Name and Title Recipient's Name
06DB-3C-10-40-01 -W 14
Signature DCA Contract Number
Firm
Street Address
City, State, Zip
Date
NOTE: SUBMISSION OF THIS. FORM DOES NOT PRECLUDE RECIPIENT'S COMPLETION AND
SUBMISSION OF THE "BIDDING INFORMATION AND CONTRACTOR ELIGIBILITY FORM."
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Attachment J
Special Conditions
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