HomeMy WebLinkAbout2022-122STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
LOCAL TRANSPORTATION PROJECT FUNDING AGREEMENT
INDIAN RIVER COUNTY - BRIGHTLINE
SUBRECIPIENT AGREEMENT
THIS STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION LOCAL
TRANSPORTATION PROJECT FUNDING AGREEMENT INDIAN RIVER COUNTY —
BRIGHTLINE SUBRECIPIENT AGREEMENT ("Agreement") is entered into as of the
day of June, 2022 by and between Indian River County, a political subdivision of the State of
Florida, whose address is 1801 27" Street, Vero Beach, Florida, 32960 ("Recipient"), and
Brightline Trains Florida, LLC, whose address is 161 NW 6th Street, Suite 900, Miami, Florida,
33136 (the "Subrecipient').
RECITALS
WHEREAS, the State of Florida Department of Transportation ("FDOT") and Recipient
have entered into a State of Florida Department of Transportation Local Transportation Project
Funding Agreement ("FDOT Agreement"), dated • 42022 for certain improvements at
railroad crossings within Indian River County, a copy of which is attached as Exhibit "A"; and
WHEREAS, the improvements described in the FDOT Agreement will be performed by
Subrecipient; and
WHEREAS, in order to ensure that the requirements of the FDOT Agreement are met and
that Subrecipient is paid for the work described in the FDOT Agreement, Recipient and
Subrecipient agree to enter into this Agreement;
NOW THEREFORE, in consideration of the mutual undertakings herein and other good
and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties
agree, as follows:
1. Recitals. The above recitals are true and correct and are incorporated herein.
2. Compliance Requirements. Subrecipient agrees that in order to receive funding under
the FDOT Agreement, Subrecipient shall comply with all obligations and requirements set
forth in the FDOT Agreement.
3. Monitoring. Subrecipient grants to Recipient and FDOT access to the Project, as
described in the FDOT Agreement, along with all records and progress reports required to
be made available to FDOT.
Page 1 of 3
4. Financial Penalties. Any financial penalties incurred by Recipient under the MOT
Agreement shall be borne by Subrecipient and paid in the manner set forth in the FDOT
Agreement, unless such penalties are solely the result of Recipient's actions or omissions.
5. Maintenance. Facilities constructed under the FDOT Agreement shall be maintained for
their useful life and used for the purpose of supporting public transportation. This
requirement shall not be construed to require modification of crossing or maintenance
agreements between the Recipient, Subrecipient, and/or any third parties that otherwise
assign responsibility for maintenance of the facilities constructed under the FDOT
Agreement. The terms of this provision shall survive the termination of the FDOT
Agreement and this Agreement.
6. Subrecipient Payments. Promptly after Subrecipient completes the work within the scope
of each individual milestone identified in the FDOT Agreement, Subrecipient shall submit
an invoice for such work to Recipient, with detail sufficient for a proper pre -audit and post -
audit thereof, based on the quantifiable, measurable, and verifiable deliverables established
in the FDOT Agreement. Recipient shall use best efforts to review and either approve or
reject each such invoice within 15 business days, and in no event more than 20 business
days, and it shall promptly submit each approved invoice to FDOT within 5 days thereafter,
along with any other information that the Recipient is obligated to provide FDOT in
connection with requests for funding under the FDOT Agreement. Once Recipient has
received funds from FDOT under the FDOT Agreement, it shall use best efforts to pay
such funds to Subrecipient within 5 business days, and in no event more than 7 business
days. Subrecipient will not receive payment for any work performed under this Agreement,
until Recipient receives funds for such payments from FDOT.
7. Single Audit. Subrecipient shall comply with single audit requirement set forth in the
FDOT Agreement.
Indemnification. To the fullest extent permitted by law, Subrecipient shall indemnify and
hold harmless the Recipient and FDOT, including FDOT's officers and employees, from
liabilities, damages, losses and costs, including, but not limited to, reasonable attorney's
fees, to the extent caused by the negligence, recklessness or intentional wrongful
misconduct of Subrecipient and persons employed or utilized by Subrecipient in the
performance of this Agreement.
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9. E -Verify System. Subrecipient shall utilize the U.S. Department of Homeland Security's
E -Verify system to verify the employment eligibility of all new employees hired by the
contractor/subcontractor during the term of this Agreement.
10. Termination. To the extent the FDOT Agreement is terminated for any reason, this
Agreement shall be deemed terminated. Any obligations still required of Recipient after
the termination of this Agreement shall continue to be borne by Subrecipient.
IN WITNESS WHEREOF, Recipient and Subrecipient have executed this instrument this —
day of June, 2022.
BRIGHTLINE TRAINS FLORIDA, LLC
By:
Patrick Goddard, President
INDIAN RIVER COUNTY ti;�Y,jSSIOrJF••.
BOARD OF COUNTY COMMISSIONEP,9.• 9s'•.,
By:
Peter D. O' Bryan, Chairman
�•1 fir'•, -'
Date approved: June 21, 2022 '
ATTEST: Jeffrey R. Smith,
Clerk of Court and Comptroller
By:
Deputy Clerk
Jason F. Blown, County"Administrator
ApproYed as to form and legal
sufficiency:
D an Reingold, County Attorney
Page 3 of 3
DocuSign Envelope ID: 040FC894-7C5D-41A0-9BCA-5735C18E02D6
9. E -Verify System. Subrecipient shall utilize the U.S. Department of Homeland Security's
E -Verify system to verify the employment eligibility of all new employees hired by the
contractor/subcontractor during the term of this Agreement.
10. Termination. To the extent the FDOT Agreement is terminated for any reason, this
Agreement shall be deemed terminated. Any obligations still required of Recipient after
the termination of this Agreement shall continue to be borne by Subrecipient.
IN WITNESS WHEREOF, Recipient and Subrecipient have executed this instrument this
day of June, 2022.
BRIGHTLINE TRAINS FLORIDA, LLC
Oocuftnsd by:
B l�
Pat W C'SP1MYffl President 6/27/2022
INDIAN RIVER COUNTY
BOARD OF COUNTY COMMISSIONERS
By:
Peter D. O'Bryan, Chairman
Date approved:
ATTEST: Jeffrey R. Smith,
Clerk of Court and Comptroller
By:
Deputy Clerk
Approved:
Jason E. Brown, County Administrator
Approved as to form and legal
sufficiency:
D an Reingold, County Attorney
Page 3 of 3
"A"
Financial Project No.: 449221-1-94-01 Fund: EM22 FLAIR Approp:
Function: FLAIR Obj.: 751000
Contract No-• G2A83 Contract Amount: $2,584,099 Org.
DUNS No: Code: 55042010429
Vendor No.:
CFDA No and Title: NIA Agency DUNS No: F596000674001
CSFA No. and Title: 55.034 l.ncnl'I rnnsPnrGdion
Projects
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
LOCAL TRANSPORTATION PROJECT FUNDING AGREEMENT
This Local Transportation Project Funding Agreement ("Agreement"), is entered between
the State of Florida, Department of Transportation ("Department") and Indian River County,
Florida, a political subdivision of the State of Florida (the "County"). The Department and the
County are sometimes referred to in this Agreement individually as a "Party" and collectively as
the "Parties."
RECITALS
A. The Department is authorized pursuant to Specific Appropriation 1915A of the
2021-2022 General Appropriations Act, Chapter 2021-36, Section 5, Laws of Florida, to provide
funding for the project described in Exhibit "A" attached to and incorporated in this Agreement
(the "Project").
B. On June -D* , 2022, the Indian River County Board of County Commissioners
authorized the County to enter into this Agreement.
AGREEMENT
1. The Recitals above are true and correct and are made a part of this Agreement.
2. The term of this Agreement shall begin upon the date of signature of the last party
to sign this Agreement ("Effective Date") and continue for thirty six (36) months after the Effective
Date, unless terminated earlier. The Effective Date will be treated as the Department's issuance of
a Project notice to proceed. The Department shall have the immediate option to terminate this
Agreement if the Project is not completed within the term of this Agreement, unless an extension
of the time period is requested by the County in writing and granted in writing by the Department
prior to the expiration of the Agreement. Expiration of this Agreement will be considered
termination of the Project.
3. The County shall deliver the Project, as specified in Exhibit "A", to the extent
funding is available under this Agreement. The Department acknowledges that all work being
designed, permitted, and constructed as part of this agreement will be performed by the County's
subrecipient, Brightline Trains Florida, LLC ("Brightline"), and that the County is entering into
this Agreement in reliance upon Brightline's commitments to the County under the terms of the
Settlement Agreement between the County and Brightline Trains Florida, LLC, dated effective as
of June 8, 2021 (the "Settlement Agreement"). Nothing in this Agreement shall be construed as
requiring the County to perform any activity which is outside of the scope of services of the Project
as defined in Exhibit "A", or which is in excess of the funding available under this Agreement.
The County shall provide quantifiable, measurable, and verifiable units of deliverables. The
Project, the quantifiable, measurable, and verifiable units of deliverables, the minimum level of
service to be performed and the criteria for evaluating successful completion are described more
fully in Exhibit "A".
4. The County, either itself or through the County's subrecipient, shall be responsible
for obtaining clearances/permits required for the construction of the Project from the appropriate
permitting authorities. Execution of this Agreement constitutes a certification by the County that
the Project will be carried out in conformance with all applicable environmental regulations
including the securing of any applicable permits. The Department shall have no liability in the
event of non-compliance with applicable environmental regulations, including the securing of any
applicable permits.
5. The County will require its subrecipient to undertake the design, permitting,
construction, and oversight of the Project in accordance with all applicable federal, state and local
statutes, rules and regulations, including the Federal Railroad Administration and County
standards and specifications.
a. The County will task its subrecipient with responsibility for preparation of
all design plans that are necessary for the Project. All design work on the Project shall be
performed in accordance with the requirements of all applicable laws and governmental
rules and regulations and federal and state accepted design standards for the type of
construction contemplated by the Project, including, as applicable, but not limited to, the
applicable provisions of the Manual of Uniform Traffic Control Devices (MUTCD),
Federal Railroad Administration requirements, and the AASHTO Policy on Geometric
Design of Streets and Highways.
b. Execution of this Agreement by both parties shall be deemed a Project
notice to proceed to the County for the Project. Any work performed prior to the execution
of this Agreement or after the expiration or earlier termination of this Agreement is not
subject to reimbursement.
C. The Department shall have the right, but not the obligation, to independently
evaluate the work being performed on the Project.
d. The County is responsible for ensuring that the work under this Agreement
is performed in accordance with the approved Project documents, and that it will meet all
applicable County requirements, including the requirements of the Settlement Agreement.
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e. Upon completion of the work authorized by this Agreement, the County
shall notify the Department in writing of the completion of the Project.
6. Facilities constructed under this Agreement shall be maintained for their useful life
and used for the purpose of supporting public transportation. This requirement shall not be
construed to require modification of crossing or maintenance agreements between the County, its
subrecipient, and/or any third parties that otherwise assign responsibility for maintenance of the
facilities constructed under this Agreement. The terms of this provision shall survive the
termination of this Agreement.
7. Costs and expenses incurred by the County in utilizing its own work force for any
services for the Project shall not be subject to reimbursement.
8. The County will require its subrecipient to provide progress reports to the
Department in the standard format used by the Department and at intervals established by the
Department. The Department will be entitled at all times to be advised, at its request, as to the
status of the Project and of details thereof. Either party to the Agreement may request and shall,
within a reasonable time thereafter, be granted a conference with the other party.
9. The total estimated cost to complete all the work included in the description of the
Project is Two Million Five Hundred Eighty Four Thousand Ninety Nine and 00/100 Dollars
($2,584,099) and is allocated among the Project activities. in the Project Budget in Exhibit `B".
10. The Department agrees to reimburse the County in an amount not to exceed Two
Million Five Hundred Eighty Four Thousand Ninety Nine and 00/100 Dollars ($2,584,099) (the
"Department Contribution") for actual costs incurred for the Project, excluding County overhead,
pursuant to the milestones identified in Exhibit `B". Project costs eligible for reimbursement will
be allowed only from the Effective Date of this Agreement. Travel costs will not be reimbursed.
a. The County shall establish for the Project, consistent with the Department's
program guidelines/procedures, separate accounts to be maintained within its existing
accounting system or separate independent accounts. Records of costs incurred under terms
of this Agreement shall be maintained by the County and made available upon request to
the Department at all times during the period of this Agreement and for five (5) years -after
final payment is made for the applicable state fiscal year. Copies of these documents and
records shall be furnished to the Department upon request. Records of costs incurred
include the County's general accounting records and the Project records, together with
supporting documents and records, of the County and all sub -recipients performing work
on the Project and all other records of the County and sub -recipients considered necessary
by the Department for a proper audit of costs. If any litigation, claim, or audit is started
before the expiration of the five (5) year period, the records shall be retained until all
litigation, claims, or audit findings involving the records have been resolved.
b. The County shall charge to the Project accounts all eligible costs of the
Project.
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C. Payments shall be made by the Department for completion of the work
specified in each individual milestone in Exhibit "B". Payment for work within the scope
of each milestone identified in Exhibit `B" shall be made only after receipt and approval
of goods and services for the relevant milestone by the County, unless advance payments
are authorized by the Chief Financial Officer of the State of Florida under Chapters 215
and 216, F.S., or the Department's Comptroller under Section 334.044(29), F.S.
d. If the Department determines that the performance of the Project is
unsatisfactory, the Department shall notify the County of the deficiency to be corrected,
which correction shall be made within a time -frame to be specified by the Department. The
County shall, within five days after notice from the Department, provide the Department
with a corrective action plan describing how all issues of contract non-performance,
unacceptable performance, failure to meet the minimum performance levels, deliverable
deficiencies, or contract non-compliance will be addressed. If the corrective action plan is
unacceptable to the Department, the Department will assess a non-performance retainage
equivalent to 10% of the total invoice amount. The retainage shall be applied to the invoice
for the then -current billing. The retainage shall be withheld until the deficiency is resolved.
If the deficiency is subsequently resolved, the County may bill the Department for the
retained amount. If the deficiency remains unresolved, the funds retained will be forfeited
at the end of the Agreement's term.
e. Invoices shall be submitted by the County upon completion of the
individually identified milestones and in detail sufficient for a proper pre- audit and post -
audit thereof, based on the quantifiable, measurable and verifiable deliverables as
established in Exhibit "A". Deliverables must be received and accepted in writing by the
Department's Project Manager or designee prior to reimbursements.
£ Supporting documentation must establish that the deliverables were
received and accepted in writing by the County and must also establish that the required
minimum level of service to be performed based on the criteria for evaluating successful
completion as specified in Exhibit "A" was met.
g. All costs charged to the Project by the County shall be supported by detailed
invoices, proof of payments, contracts or vouchers evidencing in proper detail the nature
and propriety of the charges, as described in Exhibit "C" Contract Payment Requirements.
h. The County shall submit the final invoice to the Department within one
hundred eighty (180) days after the final acceptance of the Project. Upon expiration or
earlier termination of this Agreement, any balance of unobligated funds which has been
advanced or paid to the County must be refunded to the Department.
L Any Project funds made available by the Department pursuant to this
Agreement which are determined by the Department to have been expended by the County
in violation of this Agreement or any other applicable law or regulation, or are otherwise
in excess of the amount to which the County is entitled under the terms and conditions of
this Agreement, shall be promptly refunded in full to the Department. Acceptance by the
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Department of any documentation or certifications, mandatory or otherwise permitted, that
the County files shall not constitute a waiver of the Department's rights as the funding
agency to verify all information at a later date by audit or investigation.
11. The County should be aware of the following time frames. Upon receipt of an
invoice, the Department has twenty (20) days to inspect and approve the goods and services. The
Department has twenty (20) days to deliver a request for payment (voucher) to the Department of
Financial Services. The twenty (20) days are measured from the latter of the date the invoice is
received or the goods or services are received, inspected and approved. If a payment is not
available within forty (40) days, a separate interest penalty at a rate as established pursuant to
Section 55.03(1), Florida Statutes, will be due and payable, in addition to the invoice amount.
Interest penalties of less than one dollar ($1.00) will not be enforced unless the County requests
payment. Invoices which have to be returned to the County because of County preparation errors
will result in a delay in the payment. The invoice payment requirements do not start until a properly
completed invoice is provided to and accepted by the Department. A Vendor Ombudsman has
been established within the Department of Financial Services. The duties of this individual include
acting as an advocate for entities who may be experiencing problems in obtaining timely
payment(s) from a state agency. The Vendor Ombudsman may be contacted at (850) 413-5516 or
by calling the Division of Consumer Services at (877) 693-5236.
12. In the event this Agreement is in excess of $25,000.00 (Twenty Five Thousand
Dollars and 00/100) and a term for a period of more than one (1) year, the provisions of Section
339.135(6)(a), Florida Statutes, are incorporated as follows:
"The Department, during any fiscal year, shall not expend money, incur any
liability, or enter into any contract which, by its terms, involves the expenditure of
money in excess of the amounts budgeted as available for expenditure during such
fiscal year. Any contract, verbal or written, made in violation of this subsection is
null and void, and no money may be paid on such contract. The Department shall
require a statement from the Comptroller of the Department that funds are available
prior to entering into any such contract or other binding commitment of funds.
Nothing herein contained shall prevent the making of contracts for periods
exceeding one (1) year, but any contract so made shall be executory only for the
value of the services to be rendered or agreed to be paid for in succeeding fiscal
years; and this.paragraph shall be incorporated verbatim in all contracts of the
Department which are for an amount in excess of $25,000.00 and which have a
term for a period of more than one (1) year."
13. The administration of the State resources awarded through the Department to the
County by this Agreement may be subject to audits and/or monitoring by the Department. The
following requirements do not limit the authority of the Department to conduct or arrange for the
conduct of additional audits or evaluations of Federal awards or State financial assistance or limit
the authority of any state agency inspector general, the State of Florida Auditor General, or any
other state official. The County shall comply with all audit and audit reporting requirements as
specified below and shall further require its subrecipient to comply with all audit and audit
reporting requirements as specified below.
a. In addition to reviews of audits conducted in accordance with Section 215.97,
Florida Statutes, monitoring procedures to monitor the County's use of state financial
assistance may include but not be limited to on- site visits by Department staff and/or other
procedures including, reviewing any required performance and financial reports, following
up, ensuring corrective action, and issuing management decisions on weaknesses found
through audits when those findings pertain to state financial assistance awarded through
the Department by this Agreement. By entering into this Agreement, the County agrees to
comply and cooperate fully with any monitoring procedures/processes deemed reasonably
appropriate by the Department. The County further agrees to comply and cooperate with
any inspections, reviews, investigations, or audits deemed necessary by the Department,
the Department of Financial Services (DFS) or State of Florida Auditor General.
b. The County, a nonstate entity as defined by Section 215.97(2)(m), Florida Statutes,
as a recipient of state financial assistance awarded by the Department through this
Agreement is subject to the following requirements:
i. In the event the County meets the audit threshold requirements
established by Section 215.97, Florida Statutes, the County must have a State single
or project -specific audit conducted for such fiscal year in accordance with Section
215.97, Florida Statutes; applicable rules of the Department of Financial Services;
and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-
profit organizations), Rules of the Auditor General. Exhibit "D" to this Agreement,
State Financial Assistance (Florida Single Audit Act), indicates state financial
assistance awarded through the Department by this Agreement needed by the
County to further comply with the requirements of Section 215.97, Florida Statutes.
In determining the state financial assistance expended in a fiscal year, the County
shall consider all sources of state financial assistance, including state financial
assistance received from the Department by this Agreement, other state agencies
and other nonstate entities. State financial assistance does not include Federal direct
or pass- through awards and resources received by a nonstate entity for Federal
program matching requirements.
ii. In connection with the audit requirements, the County shall ensure that the
audit complies with the requirements of Section 215.97(8), Florida Statutes. This
includes submission of a financial reporting package as defined by Section
215.97(2)(e), Florida Statutes, and Chapters 10.550 (local governmental entities)
or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General.
iii. In the event the County does not meet the audit threshold requirements
established by Section 215.97, Florida Statutes, the County is exempt for such fiscal
year from the state single audit requirements of Section 215.97, Florida Statutes.
However, the County must provide a single audit exemption statement to the
Department at FDOTSingleAudit@dot.state.tl.us no later than nine months after
the end of the County's audit period for each applicable audit year. In the event the
County does not meet the audit threshold requirements established by Section
215.97, Florida Statutes, in a fiscal year and elects to have an audit conducted in
accordance with the provisions of Section 215.97, Florida Statutes, the cost of the
audit must be paid from the County's resources (i.e., the cost of such an audit must
be paid from the County's resources obtained from other than State entities).
iv. In accordance with Chapters 10.550 (local governmental entities) or 10.650
(nonprofit and for- profit organizations), Rules of the Auditor General, copies of
financial reporting packages required by this Agreement shall be submitted to:
Florida Department of Transportation
Office of Comptroller, MS 24
605 Suwannee Street
Tallahassee, Florida 32399-0405
FDOTSingleAudit@dot.state.fl.us
and
State of Florida Auditor General
Local Government Audits/342
111 West Madison Street, Room 401
Tallahassee, FL 32399-1450
Email: flaudgen localgovt@aud.state.fl.us
V. Any copies of financial reporting packages, reports or other
information required to be submitted to the Department shall be submitted timely
in accordance with Section 215.97, Florida Statutes, and Chapters 10.550 (local
governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of
the Auditor General, as applicable.
vi. The County, when submitting financial reporting packages to the
Department for audits done in accordance with Chapters 10.550 (local
governmental entities) or 10.650 (nonprofit and for- profit organizations), Rules of
the Auditor General, should indicate the date the reporting package was delivered
to the County in correspondence accompanying the reporting package.
vii. Upon receipt, and within six (6) months, the Department will review the
County's financial reporting package, including corrective action plans and
management letters, to the extent necessary to determine whether timely and
appropriate corrective action on all deficiencies has been taken pertaining to the
state financial assistance provided through the Department by this Agreement. If
the County fails to have an audit conducted consistent with Section 215.97, Florida
Statutes, the Department may take appropriate corrective action to enforce
compliance.
viii. As a condition of receiving state financial assistance, the County
shall permit the Department, or its designee, DFS or the Auditor General access to
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the County's records including financial statements, the independent auditor's
working papers and project records as necessary. Records related to unresolved
audit findings, appeals or litigation shall be retained until the action is complete or
the dispute is resolved.
C. The County shall retain sufficient records demonstrating its compliance
with the terms of this Agreement for a period of five years from the date the audit report is
issued and shall allow the Department, or its designee, DFS or State of Florida Auditor
General access to such records upon request. The County shall ensure that the audit
working papers are made available to the Department, or its designee, DFS or State of
Florida 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.
14. The County shall permit, and shall require its subrecipient to permit, the
Department's authorized representatives to inspect all work, materials, payrolls, and records, and
to audit the books, records, and accounts pertaining to the financing and development of the
Proj ect.
15. If the Project involves a contract for construction pursuant to Chapter 255, Florida
Statutes, and at the time of the competitive solicitation for the Project construction contract fifty
(50) percent or more of the cost of the Project construction contract is to be paid from state -
appropriated funds, then the County must comply with the requirements of Section 255.099(1),
Florida Statutes. If the Project involves a consultant contract for engineering, architecture or
surveying services, the County shall comply in full with provisions of Section 287.055, Florida
Statutes, Consultants' Competitive Negotiation Act.
16. The Parties agree to comply with Section 20.055(5), Florida Statutes, and to
incorporate in all subcontracts the obligation to comply with Section 20.055(5), Florida Statutes.
17. The County shall allow public access to all documents, papers, letters, or other
material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the
County in conjunction with this Agreement. Failure by the County to grant such public access shall
be grounds for immediate unilateral cancellation of this Agreement by the Department.
18. The County shall comply with all federal, state and local laws and ordinances
applicable to the work or payment for work thereof.
19. Funds provided under this Agreement may not be used for the purpose of lobbying
the Florida Legislature, judicial branch, or any state agency, in accordance with Section 216.347,
Florida Statutes.
20. This Agreement does not involve the purchase of Tangible Personal Property, as
defined in Chapter 273, Florida Statutes.
21. The County and the Department agree that the County, its employees, subrecipient,
contractors, and subcontractors are not agents of the Department as a result of this Agreement. The
Department shall not be obligated or liable hereunder to any person or entity other than the County.
22. The Department may, by written notice to the County, terminate this Agreement or
suspend any or all of the Department's obligations under this Agreement for the County's failure
to comply with applicable laws or the terms of this Agreement until such time as the event or
condition resulting in such suspension has ceased or been corrected.
a. If the Department terminates the Agreement, the Department shall notify
the County of such termination in writing within thirty (30) days of the Department's
determination to terminate the Agreement, with instructions as to the effective date of
termination or to specify the stage of work at which the Agreement is to .be terminated.
b. The Parties to this Agreement may also terminate this Agreement when its
continuation would not produce beneficial results commensurate with the further
expenditure of funds. In this event, the Parties shall agree upon the termination conditions
through mutual written agreement.
C. If the Agreement is terminated before performance is completed, the
County shall be paid only for that work satisfactorily performed for which costs can be
substantiated. Such payment, however, may not exceed an amount which is the same
percentage of the contract price as the amount of work satisfactorily completed is a
percentage of the total work called for by this Agreement.
d. Upon termination of this Agreement, the County shall, within thirty (30)
days, refund to the Department any funds determined by the Department to have been
expended in violation of this Agreement.
23. In no event shall the making by the Department of any payment to the County
constitute or be construed as a waiver by the Department of any breach of covenant or any default
which may then exist, on the part of the County, and the making of such payment by the
Department while any such breach or default shall exist shall in no way impair or prejudice any
right or remedy available to the Department with respect to such breach or default.
24. This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Florida. Venue for any action arising under this Agreement shall be in Leon County,
Florida. Any provision in this Agreement determined by a court of competent jurisdiction, or any
other legally constituted body having jurisdiction, to be invalid or unenforceable shall be severable
and the remainder of this Agreement shall remain in full force and effect, provided that the
invalidated or unenforceable provision is not material to the intended operation of this Agreement.
25. The County affirms that it is aware of the provisions of Section 287.133(2)(a),
Florida Statutes. A person or affiliate who has been placed on the convicted vendor list following
a conviction for a public entity crime may not submit a bid on a contract to provide any goods or
services to a public entity, may not submit a bid on a contract with a public entity for the
construction or repair of a public building or public work, may not submit bids on leases of real
property to a public entity, may not .be awarded or perform work as a contractor, supplier,
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subcontractor, or consultant under a contract with any public entity, and may not transact business
with any public entity in excess of the threshold amount provided in Section 287.017, Florida
Statutes, for CATEGORY TWO for a period of thirty six (36) months from the date of being placed
on the convicted vendor list. The County agrees that it shall not violate Section 287.133(2)(a),
Florida Statutes, and further acknowledges and agrees that any conviction during the term of this
Agreement may result in the termination of this Agreement.
26. The County will not discriminate against any employee employed in the
performance of this Agreement, or against any applicant for employment because of age, ethnicity,
race, religious belief, disability, national origin, or sex. The County shall provide a harassment -
free workplace, with any allegation of harassment given priority attention and action by
management. The County shall insert similar provisions in all contracts for services to be provided
to the County under this Agreement.
27. It is not intended by any of the provisions of any part of this Agreement to create
in the public or any member thereof, a third party beneficiary under this Agreement, or to authorize
anyone not a party to this Agreement to maintain a suit for personal injuries or property damage
pursuant to the terms or provisions of this Agreement. The County guaranties the payment of all
just claims for materials, supplies, tools, or labor and other just claims against the County in
connection with this Agreement. Additionally, to the extent permitted by law and as limited by
and pursuant to the provisions of Section 768.28, Florida Statutes, the County agrees to indemnify
and hold harmless the Department , including the Department's officers and employees, from
liabilities, damages, losses and costs, including, but not limited to, reasonable attorney's fees, to
the extent caused by the negligence, recklessness or intentional wrongful misconduct of the County
or persons employed or utilized by the County in the performance of this Agreement. This
indemnification shall survive the termination of this Agreement. Nothing contained in this
paragraph is intended to nor shall it constitute a waiver of the State of Florida and the County's
sovereign immunity. Additionally, the County agrees to include the following indemnification in
all contracts it enters into for the performance of work in connection with this Agreement:
"To the fullest extent permitted by law, [the County's
subrecipient/contractor/consultant] shall indemnify and hold harmless the County and the State of
Florida, Department of Transportation, including the Department's officers and employees, from
liabilities, damages, losses and costs, including, but not limited to, reasonable attorney's fees, to
the extent caused by the negligence, recklessness or intentional wrongful misconduct of the
[subrecipient/contractor/consultant] and persons employed or utilized by the
[subrecipient/contractor/consultant] in the performance of this Agreement.
28, The Department and the County acknowledge and agree to the following:
a. The County shall utilize the U.S. Department of Homeland Security's E -
Verify system to verify the employment eligibility of all new employees hired by the
County during the term of the contract; and
b. The County shall expressly require any contractors and subcontractors
performing work or providing services pursuant to the state contract to likewise utilize the
I0
U.S. Department of Homeland Security's E -Verify system to verify the employment
eligibility of all new employees hired by the contractor/subcontractor during the contract
term.
29. All notices pertaining to this Agreement are in effect upon receipt by either Party,
shall be in writing, and shall be transmitted either by personal hand delivery; United States Post
Office, return receipt requested; or, overnight express mail delivery. E-mail and facsimile may be
used if the notice is also transmitted by one of the preceding forms of delivery. The addresses and
the contact persons set forth below for the respective parties shall be the places where notices shall
be sent, unless prior written notice of change of address is given.
Department:
State of Florida Department of Transportation
Jessie Smiley
Florida Department of Transportation
District 4 Rail Administration
3400 West Commercial Blvd.
Ft. Lauderdale, FL 33309
954-777-4667
jessie.smiley@dot.state.fl.us
County:
Indian River County
Public Works Director
1801 27`h Street, Building A.
Vero Beach, FL 32960
With a copy to:
Indian River County
County Attorney's Office
1801 27h Street, Building A
Vero Beach, FL 32960
A copy of any notice from the Department to the County shall also be sent to:
Brightline Trains Florida LLC
161 NW 6th Street Suite 900
Miami, FL 33I36
Attn: General Counsel
Email Cynthia.bergmann@gobrightline.com
30. This instrument embodies the entire agreement of the Parties. There are no
provisions, terms, conditions, or obligations other than those contained in this Agreement. This
Agreement supersedes all previous communication, representation, or agreement, either verbal or
written, between the parties. No amendment will be effective unless reduced to writing and signed
by an authorized officer of the County and the authorized officer of the Department or his/her
delegate.
31. This Agreement may be executed in duplicate originals.
12
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year written above.
INDIAN RIVER COUNTY
By:
Name:
Title:
Legal Review:
13
STATE OF FLORIDA,
DEPARTMENT OF TRANSPORTATION
By:
Name:
Title:
Legal Review:
EXHIBIT A
PROJECT DESCRIPTION
A. Project Description (description of County's project to provide context, description of project components funded via
this Agreement (if not the entire project)):
Safety improvements and upgrades at Indian River County roadway crossings necessary for higher -speed rail service through
the county to provide added protection for the residents of Indian River County due to the proposed higher -speed rail service,
including installation of sidewalk protection, second train warnings for pedestrians and motorists, and road widening to
accommodate bicyclists at existing railway crossings. Particularly, the Additional Crossing Improvements, as that term is
defined in the Settlement Agreement between the County and Brightline Trains Florida, LLC, dated effective as of ,lune 8,
2021, and as more particularly described in Exhibit C to such Settlement Agreement, a copy of which is attached to this
Exhibit A as Attachment A-1, not including the work identified in the columns for "FDOT Best Practice" or "Brightline',
and excluding the fencing at trespass/pedestrian generators and the railroad crossing panels to be installed ata width sufficient
to accommodate future Indian River road widening projects planned at 41 st Street,45th Street, and 49th Street.
B. Project Location (limits, city, county):
Indian River County, Florida
At grade rail/roadway crossings included in list attached to this Exhibit A.
Illustration/graphic/map of project area is applicable and attached to this Exhibit A.
C. Project Scope (allowable costs: describe project components, improvement type/service type, approximate timeline,
project schedule, project size):
The elements to be constructed within are site-specific to the individual crossings located from milepost 212.57 and 232.86
as described below:
1. Second Train Warning
Quantity: 74
Schedule: Work to be completed after crossings go into operation as part of local preference crossing improvements
Scope: Blank -out signs and horns will be installed at sidewalks to warn pedestrians of an oncoming train on the
second track.
2. Widen Crossing Panels 1'
Quantity: 8
Schedule: Work to be completed prior to each crossing going into operation
Scope: This work focuses on widening the existing crossing panels to provide the additional sidewalks and bike
lanes at certain crossings and sufficient width to accommodate future Indian River County roadway and sidewalk
improvements at the designated locations.
3. Mill & Resurface StripingLimits
imits
Quantity: 32
Schedule: Work to be completed prior to each crossing going into operation
Scope: This work will include milling and resurfacing all thirty-two crossings within the limits of new enhanced
striping that will be installed at each crossing. The enhanced striping is not funded through this grant agreement.
14
4. Additional Sidewalk
Quantity: 1
Schedule: Work to be completed prior to crossing going into operation
Scope: At one crossing, sidewalks with ADA ramps will be installed across the tracks. The new sidewalk will
improve connectivity and access for pedestrians.
5. Road Widen Bypass/Bike Lane
Quantity: 8
Schedule: Work to be completed prior to each crossing going into operation
Scope: At several crossings, improvements will be made to provide a safe passage for bicyclists. This work will
focus on pavement markings and widening.
See Attachment A-2 for a breakdown of the crossings and quantities.
D. Unallowable Costs (including but not limited to):
Recipient overhead or administrative fees.
E. Department Project Manager. The Department's Project Manager for the Project, and contact information, is:
Jessie Smiley
Florida Department of Transportation
District 4 Rail Administration
3400 West Commercial Blvd.
Ft. Lauderdale, FL 33309
954-777-4667
j essie.smiley@dot.state.fl.us
15
Attachment "A-1"
Exhibit C to the Settlement Agreement between Indian River County and Brightline Trains Florida, LLC,
dated effective as of June S, 2021
This attachment is part of Exhibit "A" to that certain Local Transportation Project Funding Agreement between the State
of Florida, Department of Transportation and Indian River County.
16
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Attachment "A-2"
This attachment is part of Exhibit "A" to that certain Local Transportation Project Funding Agreement between the
State of Florida, Department of Transportation and Indian River County.
17
Second
Train
Warning
Widen Mill & Sidewalks
Crossing Resnrface Ins tallatio
Panels Striping n
Bike
Lane
Installatio
n
Crossing Name
MP
Quantity
Quantity
Quantity Quantity
Quantitri
Crossing 272159U - Roseland Road
212.57
2
1
Crossing 27216 IV - Main Street
214.42
4
1
Crossing 273063H - CR 512 WB (Sebastian Blvd)
214.83
2
2
1
1
Crossing 272162C - CR 512 EB (Sebastian Blvd)
215.06
2
2
1
1
Crossing 272163) - Old Dixie Hwy
216
1
Crossing 272164R - Schtnnann Dr
216.59 1
2
1
Crossing 272165X - 99th Street (Vickers Rd)
217.61 1
1
Crossing 272974H - Barber Street
218.03
4
1
Crossing 272168T - Wabasso Rd/CR 510/85th St
219.58
4
1
Crossing 272170U - 77th Street (Hobart Rd)
220.7
2
1
Crossing 272172H - 69th Street (N Winter Beach)
221.57
2
1
2
Crossing 272173P - 65th Street (S Winter Beach Rd)
222.32
2
1 1
Crossing 272175D - Hawks Nest Rd
223.18
1
Crossing 273108M - 53rd Street
223.9
4
1
2
Crossing 2721775 - 49th Street
224.42 1
4
1
2
Crossing 272178Y - 451h Street
224.94
4
1
Crossing 272179F - 43rd Street
225.12
1
Crossing 272180A - 41st Street
225.46
4
1
Crossing 273047Y - 32nd Street (Aviation Blvd)
226.65
1
Crossing 272189L - 26th Street
227.06 1
2
1
Crossing 272190F - 14th Ave
227.14
1
Crossing 272191M - 23rd Street
227.31
1-227.48
2
1
Crossing 272192U - 21st Street
2
1
Crossing 272193B - 20th Street
227.55
4
1
Crossing 272958Y - 19th Place
227.61
4
1
Crossing 272195P - 17th Street/16th Street
228.02
4
1
Crossing 272196W - 12th Street
228.66
4
1
Crossing 272197D - Glendale Rd
229.19
1
Crossing 273049M - 4th Street (Indian River Blvd)
229.75
4
1
Crossing 2721995 - 1st Street
230.15
2
1
Crossing 2722003 - Oslo Rd
231.31
4
1
Crossing 272201R - Holands Dr
232.86
4
1
I
Subtotal
74
8
32 1
8
17
EXHIBIT B
PROJECT BUDGET
This exhibit forms an integral part of that certain Local Transportation Project Funding Agreement between the State
of Florida, Department of Transportation and Indian River County.
LOCAL PREFERENCE IMPROVEMENTS
Estimate
Second Train Warning
$1,017,726
Widen Crossing Panels 1'
$73,445
Traffic Signal Yellow Trap (flashing yellow arrow)
$0
Mill & Resurf. Striping Limits
$583,194
Addl. Sidewalks (65th Street Only)
$754,999
Road Widen Bypass/Bike Lanes
$154,735
Total Local Preference
$2,584,099
Total $2,584,099.00
I8
3x
41
`.'1Vlax�mum Limrtiag Amounci, ent 1VLlestone
Pa ment Amount
:., _Y.,..:
Milestone 1: Completed I-8 Crossings
$0
Milestone 2: Com leted 9-16 Crossings
$0
Milestone 3: Completed 17-24 Crossings
$1,292,049.50
Milestone 4: Completed 25-32 Crossings
$1,292,049.50
Total $2,584,099.00
I8
EXHIBIT C
CONTRACT PAYMENT REQUIREMENTS
Florida Department of Financial Services, Reference Guide for State Expenditures
Cost Reimbursement Contracts
Invoices for cost reimbursement contracts must be supported by an itemized listing of expenditures by category (salary,
travel, expenses, etc.). Supporting documentation shall be submitted for each amount for which reimbursement is being
claimed indicating that the item has been paid. Documentation for each amount for which reimbursement is being claimed
must indicate that the item has been paid. Check numbers may be provided in lieu of copies of actual checks. Each piece of
documentation should clearly reflect the dates of service. Only expenditures for categories in the approved agreement budget
may be reimbursed. These expenditures must be allowable (pursuant to law) and directly related to the services being
provided.
Listed below are types and examples of supporting documentation for cost reimbursement agreements:
(l) Salaries: A payroll register or similar documentation should be submitted. The payroll register should show
gross salary charges, fringe benefits, other deductions and net pay. If an individual for whom reimbursement is
being claimed is paid by the hour, a document reflecting the hours worked times the rate of pay will be acceptable.
(2) Fringe Benefits: Fringe Benefits should be supported by invoices showing the amount paid on behalf of the
employee (e.g., insurance premiums paid). If the contract specifically states that fringe benefits will be based on a
specified percentage rather than the actual cost of fringe benefits, then the calculation for the fringe benefits amount
must be shown.
Exception: Governmental entities are not required to provide check numbers or copies of checks for fringe benefits.
(3) Travel: Reimbursement for travel must be in accordance with Section 112.061, Florida Statutes, which includes
submission of the claim on the approved State travel voucher or electronic means.
(4) Other direct costs: Reimbursement will be made based on paid invoices/receipts. If nonexpendable property is
purchased using State funds, the contract should include a provision for the transfer of the property to the State when
services are terminated. Documentation must be provided to show compliance with Department of Management
Services Rule 60A-1.017, Florida Administrative Code, regarding the requirements for contracts which include
services and that provide for the contractor to purchase tangible personal property as defined in Section 273.02,
Florida Statutes, for subsequent transfer to the State.
(5) In-house charges:Charges which may be of an internal nature (e.g., postage, copies, etc.) may be reimbursed on
a usage log which shows the units times the rate being charged. The rates must be reasonable.
(6) Indirect eosts:If the contract specifies that indirect costs will be paid based on a specified rate, then the
calculation should be shown.
Contracts between state agencies, and or contracts between universities may submit alternative documentation to
substantiate the reimbursement request that may be in the form of FLAIR reports or other detailed reports.
The Florida Department of Financial Services, online Reference Guide for State Expenditures can be found at this web
address hllp://www.fldfs.com/aadir/reference auide.htm.
19
EXHIBIT D
State Financial Assistance (Florida Single Audit Act)
THE STATE RESOURCES AWARDED PURSUANT TO THIS AGREEMENT CONSIST OF THE FOLLOWING:
SUBJECT TO SECTION 215.97, FLORIDA STATUTES:
Awarding Agency: Florida Department of Transportation
State Project Title: LOCAL TRANSPORTATION PROJECTS
CSFA Number: 55.039
*Award Amount: $2,584,099.00
*The state award amount may change with supplemental agreements
Specific project information for CSFA Number 55.039 is provided at: https•//apps fldfs com/fsaa/searchCataloa.aslix
COMPLLANCE RE UIREMENTS APPLICABLE TO STATE RESOURCES AWARDED PURSUANT TO THIS
AGREEMENT:
State Project Compliance Requirements for CSFA Number 55.039 are
hUs://aRps.fldfs.com/fsWsearchCompliance.aspx
The State Projects Compliance Supplement is provided at: https://4pps.fldfs.coTn/fsaa/comi?li.anc--.aspx
20
provided at: