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10/31/2023
LORtij BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY FLORIDA COMMISSION AGENDA TUESDAY, OCTOBER 31, 2023 - 9:00 AM Commission Chambers Indian River County Administration Complex 1801 27th Street, Building A Vero Beach, Florida, 32960-3388 www.indianriver.gov COUNTY COMMISSIONERS Joseph H. Earman, District 3, Chairman John A. Titkanich, Jr., County Administrator Susan Adams, District 1, Vice Chairman William K DeBraal, County Attorney Joseph Flescher, District 2 Ryan L. Butler, Clerk of the Circuit Court and Comptroller Deryl Loar, District 4 Laura Moss, District 5 1. CALL TO ORDER 2.A. A MOMENT OF SILENT REFLECTION FOR FIRST RESPONDERS AND MEMBERS OF THE ARMED FORCES 2.11. INVOCATION Chaplain Lou Tropf, IRC Jail 3. PLEDGE OF ALLEGIANCE Commissioner Susan Adams 4. ADDITIONS/DELETIONS TO THE AGENDA / EMERGENCY ITEMS 5. PROCLAMATIONS and PRESENTATIONS S.A. Presentation of Proclamation Honoring Mike Rozier on His Retirement From the Indian River County Sheriffs Department Attachments: Proclamation S.B. S.C. Presentation of Proclamation Honoring Deputy Jerry Montanaro on his Retirement from the Indian River County Sheriffs Office Attachments: Proclamation Presentation of Proclamation Commending Friends After Diagnosis Attachments: Proclamation October 31, 2023 Page 1 of 7 S.D. Presentation of Proclamation in Support of Unity Attachments: Proclamation 6. APPROVAL OF MINUTES 6.A. Regular Meeting of September 26, 2023 Attachments: 09-26-2023 BCC - Draft 6.B. Regular Meeting of October 3, 2023 Attachments: 10032023 BCC Draft 7. INFORMATION ITEMS FROM STAFF OR COMMISSIONERS NOT REQUIRING BOARD ACTION 7.A. 4th Quarter FY 2022/2023 Budget Report Attachments: Staff Report 4th Quarter Budget Report 7.B. Sebastian River Improvement District Fiscal Year 2023/2024 Regular Board Meeting Schedule Attachments: SRID Meeting FY23-24 Schedule 7.C. Children's Services Advisory Committee - District 4 Appointee Seat - Resignation & Appointment Attachments: Memorandum Michele Falls - Resignation Email Jeff Andros - CSAC District 4 Appointee 8. CONSENT AGENDA 8.A. Resolution Cancelling Taxes - Purchased from Harish and Deepti Sadhwani Attachments: Staff Report Resolution Warranty Deed 8.11. Approval of Updated Statewide Mutual Aid Agreement between Indian River County and the Florida Division of Emergency Management Attachments: Staff Report Mutual Aid Agreement Resolution October 31, 2023 Page 2 of 7 8.C. Acceptance and Approval of Expenditures of Emergency Management Program Grant (EMPG) Federally -Funded Subgrant Agreement; Agreement Number: G0440 Attachments: Staff Report IRC Grant Form EMPG Agreement 8.D. Second Amendment for Sandridge Golf Club Maintenance Attachments: Staff Report IGM Agreement IGM Request 2022 IGM Request 2023 IGM First Amendment IGM Second Amendment 8.E. Florida Inland Navigation District Project Agreement for the Environmental Learning Center Dock Replacement Part 2, Project #IR -23-77 Attachments: Staff Report Grant Agreement 8.F. Revision to AM -503.1 Holiday Schedule (Personal Day) Attachments: Staff Report AM -503.1 Holiday Schedule 8.G. Work Order No. 5 - Morgan & Eklund, Inc., 2024 Beach Profile Monitoring Surveys (WINTER) Attachments: Staff Report Morgan and Eklund IRC Winter 2024 WO No. 5 Work Order No. 5 Agreement Execution 8.H. Designation of Excess Equipment as Surplus and Authorization for Disposal Attachments: Staff Report Excess List 8.I. Interfund Borrowing Fiscal Year 2022/2023 Attachments: Staff Report 8.J. Ratification of Increase to Purchase Order 94330 Attachments: Staff Report 8.K Award of RFP 2024007 for Banking and Lockbox Services Attachments: Staff Report Agreement October 31, 2023 Page 3 of 7 8.L. Award of Bid 2023046 for Hosie Shumann Park Restroom Construction Attachments: Staff Report Agreement 8.M. Award of Bid 2023047 for Kiwanis Hobart Park New Restroom and Sewer Connection Attachments: Staff Report Agreement 8.N. Waiver of Requirement for Bids to Procure Road Base Materials Attachments: Staff Report 8.0. Final Ranking of Firms and Authorization to Negotiate - RFQ 2023061 for Continuing Geotechnical Engineering Consulting Services Attachments: Staff Report 8.P. Waiver of Requirement for Bids for Tagmarshal Attachments: Staff Report Tagmarshal Terms and Conditions 8.Q. Final Ranking of Firms and Authorization to Negotiate - RFQ 2023062 for Continuing Architectural Consulting Services Attachments: Staff Report 8.R. Award of Bid No. 2024006 and FDOT FM No. 440673-1-58-01 Local Agency Program (LAP) Supplemental Agreement No. 1 and Resolution Authorizing the Chairman's Signature for the Trans -Florida Railway Trail from Fellsmere to West of I-95 Attachments: Staff Report LAP Supplemental Agreement No. 1 Authorizing Resolution Sample Agreement 9. CONSTITUTIONAL OFFICERS and GOVERNMENTAL AGENCIES 10. PUBLIC ITEMS A. PUBLIC HEARINGS October 31, 2023 Page 4 of 7 10.A.1. Consideration of an Ordinance of Indian River County, Florida, Amending the Future Land Use Map of the Comprehensive Plan by Changing the Future Land Use Map Designation for +1.65 Acres Located on the East Side of US Highway 1 Between Jackson Street and 132nd Street from M-1, Medium Density Residential (up to 8 Units per Acre) to CA, Commercial/Industrial- -LEGISLATIVE Attachments: Staff Report Proposed Future Land Use Map Existing Future Land Use Map Application LUDA Ordinance LUDA October 2023 (SJP) 10.A.2. Consideration of a Land Development Regulation (LDR) Amendment for the Site Plan Review and Approval Procedures for Solar Facilities (LDRA-23-10-01 / 2022020086-95412) LEGISLATIVE Attachments: Staff Report Draft Ordinance B. PUBLIC DISCUSSION ITEMS C. PUBLIC NOTICE ITEMS 11. COUNTY ADMINISTRATOR MATTERS 12. DEPARTMENTAL MATTERS A. Community Services B. Emergency Services C. Human Resources D. Information Technology E. Natural Resources F. Office of Management and Budget G. Parks, Recreation, and Conservation H. Planning and Development Services 12.11.1. Update Regarding On -Call and Weekend Hours for Code Enforcement Staff Attachments: Staff Report 12.H.2. Stormwater Inspection Fees for Solar Facilities Attachments: Staff Report Draft Fee Resolution I. Public Works October 31, 2023 Page 5 of 7 J. Utilities Services 13. COUNTY ATTORNEY MATTERS 14. COMMISSIONERS MATTERS A. Commissioner Joseph Ii. Earman, Chairman B. Commissioner Susan Adams, Vice Chairman C. Commissioner Joseph E. Flescher D. Commissioner Deryl Loar E. Commissioner Laura Moss 15. SPECIAL DISTRICTS AND BOARDS A. Emergency Services District B. Solid Waste Disposal District C. Environmental Control Board 16. ADJOURNMENT Except for those matters specifically exempted under the State Statute and Local Ordinance; the Board shall provide an opportunity for public comment prior to the undertaking by the Board of any action on the agenda, including those matters on the Consent Agenda. Public comment shall also be heard on any proposition which the Board is to take action which was either not on the Board agenda or distributed to the public prior to the commencement of the meeting. Anyone who may wish to appeal any decision which may be made at this meeting will need to ensure that a verbatim record of the proceedings is made which includes the testimony and evidence upon which the appeal will be based. Anyone who needs a special accommodation for this meeting may contact the County's Americans with Disabilities Act (ADA) Coordinator at (772) 226-1223 at least 48 hours in advance of meeting. Anyone: who needs special accommodation with a hearing aid for this meeting may contact the Board of County Commission Office at 772-226-1490 at least 20 hours in advance of the meeting. The full agenda is available on line at the Indian River County Website at www.indianrivergov The full agenda is also available for review in the Board of County Commission Office, the Indian River County Main Library, and the North County Library. October 31, 2023 Page 6 of 7 Commission Meetings are broadcast live on Comcast Cable Channel 27 Rebroadcasts continuously with the following proposed schedule: Tuesday at 6:00 p.m. until Wednesday at 6:00 a.m., Wednesday at 9:00 a.m. until 5:00 p.m., Thursday at 1:00 p.m. through Friday Morning, and Saturday at 12:00 Noon to 5:00 p.m. October 31, 2023 Page 7 of 7 and Proclamation HONORING MIKE ROZIER ON HIS RETIREMENT FROM THE INDIAN RIVER COUNTY SHERIFF'S OFFICE -Whereas, Mike Rozier is retiring from the Indian River County Sheriff's Office, effective October 31, 2023; -Whereas, Mike began his journey at the Indian River County Sheriff's Office on October 1, 1987, and has served with distinction for over thirty-six years; and -Whereas, Mike was employed in the Fleet Services Unit for the duration of his career and reached the position of Fleet Services Manager; and Whereas, over his tenure, Mike received many acknowledgements and commendations for his efforts, including Civilian Employee of the Year, Exceptional Duty and Grand Cordon; and Whereas, Mike worked diligently under five sheriffs to protect and serve the citizens of Indian River County and the State of Florida, Mike's remarkable dedication to his profession has earned him the appreciation of Sheriff Flowers and all those who have had the honor of working with him. Now, 111herefore, be it Proclaimedby the Boardof County Commissioners of Indian River County, Florida, that the Board lauds the contributions Mike Rozier has made to the citizens of Indian River County during his highly successful law enforcement career, and wishes him a happy and prosperous retirement. Adopted this 31st day of October, 2023. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Joseph Earman, Chairman Susan Adams, Vice Chairman Joseph E. Flescher Deryl Loar Laura Moss ProcCamatio'on HONORING JERRY MONTANARO ON HIS RETIREMENT FROM THE INDIAN RIVER COUNTY SHERIFF'S OFFICE -Whereas, Jerry Montanaro is retiring from the Indian River County Sheriff's Office, effective October 27, 2023; and -Whereas, Jerry began his journey in law enforcement January 16, 1995 and has served with distinction for over twenty-eight years, working diligently under four sheriffs to protect and serve the citizens of Indian River County and the State of Florida; and -Whereas, Jerry was employed as a Corrections Deputy in the Corrections Division and became dual certified on September 26, 1995. He transferred to Courthouse Security in 1997; and -Whereas, over his tenure, Jerry received many acknowledgements and commendations for his efforts, including the Tactical Award; and -Whereas, Jerry's remarkable dedication to his profession has earned him the appreciation of Sheriff Flowers and all those who have had the pleasure of working with him. Wow, 7 -herefore, be it Proclaimed by the Board of County Commissioners of Indian River County, Florida, that the Board lauds the contributions Jerry Montanaro has made to the citizens of Indian River County during his highly -successful law enforcement career and wishes him a happy and prosperous retirement. Adopted this 31 st day of October, 2023. BOARD OF COUNTY COMMISSIONERS, INDIAN RIVER COUNTY, FLORIDA Joseph H. Earman, Chairman Susan Adams, Vice Chairman Joseph E. Flescher Deryl Loar Laura Moss ProcCamatw'00'n COMMENDING FRIENDS AFTER DIAGNOSIS -Whereas, Friends After Diagnosis is an Indian River County, 501(c)(3) organization dedicated to enhancing the lives of women diagnosed with cancer; and 1Whi.ereas, at present, Florida has the second-highest cancer burden in the nation and since 2014, cancer has been the second leading cause of death in Florida following heart disease; and -Whereas, an average of 115,000 new cancers are diagnosed, and reported each year to the statewide cancer registry, the Florida Cancer Data System; and -Whereas, Friends After Diagnosis has served local women diagnosed with cancer, and their caregivers for 14 years providing support groups, wellness programming, personal services, financial navigation, and mental health referrals; and 'Whereas, events and networking are offered to help survivors feel connected and secure in a genuinely caring community, which is inclusive and diverse, welcoming all ages, stages of life, and belief systems without question; and -Whereas, it is the hope and vision of Friends After Diagnosis to see that all women diagnosed with cancer and their loved ones have lives filled with wisdom, wellness, fellowship, and peace. Wow,'Pherefore, be it Proclaimed dy the Board of County Commissioners ofIndian River County, Fforida, that Friends After Diagnosis is to be commended for their compassionate and continuing, supportive care of women with cancer in Indian River County on October 31, 2023, which is fitting as October is designated as Breast Cancer Awareness Month by the American Cancer Society, and that all residents are encouraged to obtain their routine cancer screenings in order to safeguard their health and well-being. Adopted this 31st day of October, 2023. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Joseph Earman, Chairman Susan Adams, Vice Chairman Joseph E. Flescher Deryl Loar Laura Moss ProcCamatt"'M A PROCLAMATION IN SUPPORT OF KINDNESS AND UNITY IN INDIAN RIVER COUNTY -Whereas, In light of recent events around the world, the Indian River County BOCC presents a proclamation in support of kindness and unity among all our residents and guests; and -Whereas, the Jewish community, including different organizations and individuals, is vibrant and involved in enriching life in Indian River County; and -Whereas, Indian River County stands united with all citizens and communities against hatred of any form and recognizes our diversity as a strength for the County; and -Whereas, A response to hate transcends partisan beliefs; together, we are and will remain forever stronger. Now, 1,r&refore, be it Proclaimed by the Board of County Commissioners of Indian River County, ,Florida, that any display of hate shall not be welcomed or tolerated in our community, and that all our citizens stand and remain strong in that belief as we are all "One Nation Under God". Adopted this 31St day of October, 2023. BOARD OF COUNTY COMMISSIONERS, INDIAN RIVER COUNTY, FLORIDA Joseph H. Earman, Chairman Susan Adams, Vice Chairperson Joseph E. Flescher Deryl Loar Laura Moss _�A INFORMATIONAL ITEM Indian River County Inter -Office Memorandum Office of Management and Budget TO: Members of the Board of County Commissioners DATE: October 9, 2023 SUBJECT: 4th Quarter FY 2022/2023 Budget Report FROM: Kristin Daniels Director, Office of Management & Budget Following is the quarterly report for the fourth quarter of fiscal year 2022/2023. k M L- C -4 - O � N N N } 'q O v Ci m 0 d U C ri N CC G 0) C r u 0) D L C O R O U ° o m �7- m N M w N v N d V O _CV � O N � d } CSW C CL O E o ). ul CL V a c M >d O O d N u d c _o � a � m p d C 6� CL ra LO u u y u O CL a � o c LL x a a O N O V -° -C D -C cq N ^ ° N O ° p a 04 — °° m co Cl OL o ° m e Ci d} . '° T o V '°� O T ` F C Ci o gE o 2 O aa) a g pcn c O O 0 O ° U E E 3 ^ O o •- U n ° a N C N C of n a. Cl U co D. T c E ri vi o 9 C �, a) O N - E CL v 0 o C-4 eR r 3 v> u m E b\ o > > ° a) ° N a o a U a) � c � m O 0 a c .� O 6� 0) N '° Q Q m a) r> > C ° Z t °) t °) U c U N 69. 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Lo C7 O LO O Cn CC) N Cn za P Vco q N 4149+ CCS Lq n 9 I- 165- T �O 5 U s LU LU D /n Q13 Q e Z _O H LLL 7 O u E w e = 1- e O O V_ P V Cl) M J O 7 Ch n Ln Cr <t V N 0 h D LO O co C10 CV P Cf} P 10 C`7 r. N CA CID CD CD O CD tog- LU frW Q a LU Q '3 QDQ� Q oc W CL CL O U O M U') M O M Nt N Cn O LO CD h M t,4 N MM Vi t.4 00 I- «fr H W z O 1� O J O N Cl) O CM Nt N Lo O n N O 0 P% _P a C4 O C9 O� K P O M N 1- 0 O t N SEBASTIAN RIVER IMPROVEMENT DISTRICT FISCAL YEAR 2023/2024 REGULAR BOARD MEETING SCHEDULE File ID: a1?—/fit NOTICE IS HEREBY GIVEN that the Sebastian River Improvement District ("SRID") will hold Regular Board Meetings of the Board of Supervisors at the Indian River County Administration Complex, Building A, Room Al -102, Vero Beach, Florida 32960 at 10:00 a.m. (**unless otherwise noted**) on the following dates: October 18, 2023 November 15, 2023 December 20, 2023 January 17, 2024 February 21, 2024 March 20, 2024 April 17, 2024 May 15, 2024 **June 19, 2024** July 17, 2024 August 21, 2024 September 18, 2024 **On June 19, 2024, the Sebastian River Improvement District Annual Landowners' Meeting will be held at the Indian River County Administration Complex, Building A, Room Al -102, Vero Beach, Florida 32960 and will commence at 9:00 a.m. The Regular Board Meeting will immediately follow the Annual Landowners' Meeting at the same location.** The purpose of the meetings is to conduct any business which may properly come before the Board. The meetings are open to the public and will be conducted in accordance with the provisions of Florida law. Copies of the Agenda for any of the meetings may be obtained from the District's website or by contacting the District Manager at (561) 630-4922 and/or toll free at 1-877-737-4922. From time to time a Supervisor may participate by telephone; therefore, a speaker telephone may be present as required, at the meeting location so that Supervisors may be fully informed of the discussions taking place. Said meeting(s) may be continued as found necessary to a time and place specified on the record. If any person decides to appeal any decision made with respect to any matter considered at these meetings, such person will need a record of the proceedings and such person may need to insure that a verbatim record of the proceedings is made at his or her own expense and which record includes the testimony and evidence on which the appeal is based. In accordance with the provisions of the Americans with Disabilities Act, any person requiring special accommodations or an interpreter to participate at any of these meetings should contact the District Manager at (561) 630-4922 and/or toll free at 1-877-737-4922 at least seven (7) days prior to the date of the particular meeting. Meetings may be cancelled from time to time without advertised notice. SEBASTIAN RIVER IMPROVEMENT DISTRICT www.sridfl.org PUBLISH: INDIAN RIVER PRESS JOURNAL 10/06/23 2u io/t3tA; Aeh:j SEBASTIAN RIVER IMPROVEMENT DISTRICT c/o Special District Services, Inc. 2501 Burns Road, Suite A Palm Beach Gardens, Florida 33410 (561) 630-4922 Fax: (561) 630-4923 September 29, 2023 VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED Clerk of the Circuit Court Indian River County P.O. BOX 1028 Vero Beach, FL 32961-1028 Re: Sebastian River Improvement District To Whom It May Concern: Pursuant to Florida law, enclosed please find a copy of the Fiscal Year 2023/2024 Regular Meeting Schedule for Sebastian River Improvement District, as will be published. If you have any questions and/or comments, please do not hesitate to contact our office. Sincerely, SPECIAL DISTRICT SERVICES, INC. Laura J. Archer Enclosure �c October 31, 2023 Informational Item INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER -OFFICE MEMORANDUM TO: Members of the Board of County Commissioners DATE: October 25, 2023 SUBJECT: Children's Services Advisory Committee — District 4 Appointee Seat FROM: Commissioner Deryl Loar, District 4 Informational Item: Please be advised that Michele Falls has submitted in writing her resignation from the Children's Services Advisory Committee as the District 4 appointee. Michele has served for many years on CSAC in both the Main Committee as well as on the sub -committees. Michele has been a valuable asset for the children and families of Indian River County and I wish great success in her future endeavors. I would like to appoint Mr. Jeff Andros as the District 4 Appointee to the Children's Services Advisory Committee. Jeff has a wealth of historic knowledge of Indian River County and of the inner workings of our county government. Attachment: 1. Michele Falls — Resignation from CSAC 2. Jeff Andros — Resume & Application 27 From: mmfalls@bellsouth.net <mmfalls@bellsouth.net> Sent: Monday, October 16, 2023 8:15 PM To: Deryl Loar <dloar@indianriver.gov> Subject: CSAC Resignation This message is from an external source. Please use caution when opening attachments or clicking links. Commissioner Loar, Please accept my resignation from the Children's Services Advisory Committee. It has been an honor to serve my community on both the CSAC Main Committee and the CSAC Grant Review Committee. Thank you for having appointed me to this invaluable Advisory Committee that serves the children and families of Indian River County. Mlohele Falls mmfalls@bellsouth.net 772-538-0637 28 OBJECTIVE EFFREY ANDROS 62010th St SW, Vero Beach, FL 32962 772-584-5163 1 jeffreyandrosl@gmail.com To educate, protect, and assist individuals, businesses, corporations, and municipalities in all cybersecurity and IT -related fields. SKILLS & ABILITIES Audits. Risk Management. Incident Response. Cybercrimes. Digital Forensics. Remote Support. Threat Detection. Cloud Support. Backup and Restoration. Management. Project Lead. Malware Analysis. Policy and Protocols. Data Analysis. Network design, setup, security, and implementation. Cybersecurity. IT hardware and software. Big Data. Certified ADA website compliance consultant. Professional web design. IT project planning and management. WORK EXPERIENCE 2002-2004 Fiber Optic Tech, IBM Setup and connection of massive -scale computing equipment utilizing fiber optic equipment. • Government security clearance. 2004 —2007 Support, CIA Security UL trainer for security protocols on central station equipment. Programing of financial institution accounts. Equipment maintenance, setup and implementation. Present President, JA Mack Consultants, LLC IT Consulting, Management and Cybersecurity Corporate, Small Business, and Municipal customers. Website design and ADA compliance • Cybercrime investigations & Digital Forensics Custom Computing Systems, Data Servers, Networking EDUCATION 7/2020 BS in Information Technology, Summa Cum Laude— SNHU 7/2021 MS in Cybercrime, USF 7/2021 Cybersecurity Digital Forensics Graduate Cert, USF 5/2022 MS in Digital Forensic, UCF 11/2023 MS in Cybersecurity, SNHU 12/2024 MS in Information Systems Management — FIT— In Progress 29 E CONSENT: 10/31/2023 Of -,e of INDIAN RIVER COUNTY ATTORNEY William K. DeBraal, County Attorney Susan J. Prado, Deputy County Attorney lu 1 Do to) ;7_1►111"0 TO: Board of County Commissioners THROUGH: John A. Titkanich, Jr., County Administrator FROM: William K. Debraal, County Attorney DATE: October 18, 2023 SUBJECT: Resolution Cancelling Taxes — Purchased from Harish and Deepti Sadhwani A resolution has been prepared for the purpose of earmarking the public use of the following property and cancelling any delinquent, omitted or current taxes which may exist on the property obtained by Indian River County: Public Purpose: Right -Of -Way & Stormwater Retention Pond for 66th Ave. Location/Description: 6600 65TH ST— PID 32390700001008000002.0 Purchased from: Harish and Deepti Sadhwani Instrument: Warranty Deed, recorded in Book 3653, Page 2193 of the public records of Indian River County FUNDING: There is no cost associated with this item. RECOMMENDATION: Authorize the Chairman of the Board of County Commissioners to execute the Resolution to cancel certain taxes upon the property purchased by or donated to Indian River County for a public purpose, and the Clerk to send a certified copy of the Resolution to the Tax Collector and the Property Appraiser so that any delinquent or current taxes can be cancelled. ATTACHMENTS: Resolution Warranty Deed cc: Carole Jean Jordan - Tax Collector Wesley Davis - Property Appraiser 30 Purchased from Harish and Deepti Sadhwani Public Purpose: Right-Of-Way & Stormwater Retention Pond for 661' Ave. Tax Parcel No(s).: 32390700001008000002.0 RESOLUTION NO. 2023- A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA, CANCELLING CERTAIN TAXES UPON PUBLICLY OWNED LANDS, PURSUANT TO SECTION 196.28, FLORIDA STATUTES. WHEREAS, section 196.28, Florida Statutes, allows the Board of County Commissioners of each County to cancel and discharge any and all liens for taxes, delinquent or current, held or owned by the county or the state, upon lands heretofore or hereafter conveyed to or acquired by any agency, governmental subdivision, or municipality of the state, or the United States, for road purposes, defense purposes, recreation, reforestation, or other public use; and WHEREAS, such cancellation must be by resolution of the Board of County Commissioners, duly adopted and entered upon its minutes properly describing such lands and setting forth the public use to which the same are or will be devoted; and WHEREAS, upon receipt of a certified copy of such resolution, proper officials of the county and of the state are authorized, empowered, and directed to make proper entries upon the records to accomplish such cancellation and to do all things necessary to carry out the provisions of section 196.28, F.S.; 1 31 RESOLUTION NO. 2023 - NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that any and all liens for taxes delinquent or current against the following described lands which were purchased by Indian River County from Harish and Deepti Sadhwani for Right -Of -Way and Stormwater Retention Pond, are hereby cancelled pursuant to the authority of section 196.28, F.S. See Warranty Deed describing lands, recorded in O.R. Book 3653, Page 2193 of the Public Records of Indian River County, Florida. The resolution was moved for adoption by Commissioner , and the motion was seconded by Commissioner , and, upon being put to a vote, the vote was as follows: Joseph H. Earman, Chairman Susan Adams, Vice Chairman Joseph E. Flescher, Commissioner Deryl Loar, Commissioner Laura Moss, Commissioner The Chairman thereupon declared the resolution duly passed and adopted this 31 st day of October, 2023. 2 32 RESOLUTION NO. 2023 - BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA LM Joseph H. Earman, Chairman ATTEST: Ryan L. Butler, Clerk of Court and Comptroller Deputy Clerk Tax Certificates Outstanding _ X Yes No Current Prorated Tax Received and Deposited with Tax Collector $0.00 Approved as to form and legal sufficiency: By: William K. DeBraal County Attorney 3 33 3120230050102 RECORDED IN THE PUBLIC RECORDS OF RYAN L. BUTLER, CLERK OF COURT INDIAN RIVER COUNTY FL BK: 3653 PG., 2193 Page 1 of 4 1014/2023 1:17 PM D DOCTAX PD $0.70 Prepared by and return to: This instrument prepared by: Jason Beal Atlantic Coastal Land Title Company LLC 855 21st Street, Suite C Vero Beach, FL 32960 (772) 569-4364 File No.: 2023-6902 [Space Above This Line For Recording Data] WARRANTY DEED This Warranty Deed Made this 19th day of September, 2023 by Harish Sadhwani and Deepti Sadhwani, husband and wife, hereinafter called the grantor, whose post office address is: 1840 Bayview Court, Vero B=h FL32963 to; Indian River County, a political subdivision at the Stat#t of Florida, whose post office address is: 180127x` Street, Vero Beach FL 32960, hereinafter called the grantee, WITNESSETH: That said grantor, for and in consideration of sum of Ten ($10.00) Dollars, and other valuable considerations, receipt whereof is hereby acknowledged, hereby grants, bargains, sells, aliens, remises, releases, conveys and conf m into the grantee, all that certain land situated in Indian River County, Florida, vim SEE ATTACHED MR= A — LEGAL DISCREMMUN TOGETHER with all the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining. To Have and to Hold, the same in fee simple forever. And the grantor hereby covenants with said grantee lhat the grantor is lawfully seized of said land in fee simple; that the grantor has good right and lawful authority to sell and convey said land; that the grantor hereby fully warrants the title to said land and will defend the same against the lawful claims of all persons whomsoever; and that said land is free of all encumbrances, except taxes accruing subsequent to , reservations, restrictions and easements of record, if -any. (The terms "grantor" and "grantee" herein shall be ctt tt mW to include all genders and singular or plural as the context indicates) Pursuant to ,Rule 12B-4.013(4), FAC, dift deed is beinggiwn to a overs modal end >ra r threat of condemnation or as a part of ars or t-*.: est seakinent ofcarrdamna&w prorwdkp and is not subject to tax. RE: 2023-6902 PAV160 34 Witness Primed Name: a „7+zL Lu kkoL . State of Florida County of Indian River Deep-6- eep Sadhwani The foregoing instrument was acknowledged before me by means of ysical presence or (j online no zation, this 19th day of September, 2023 by Harish Sadhwani and Deepti Sadhwani who LAare personally known or U have produced drivers' licenses as identification.. [Seal] p" , JASON A. BEAL )OKUPublic Notary Public - State of Florida Print Name: Commission # HH 012213 My Comm. Expires Oct 11, 2024 My Commission Expires' Bonded through National Notary Assn. POW1 03 r. 35 EXHIBIT A — LEGAL DESCRIPTION The East 30 acres of Tract 8, Section 7, Township 32 South, Range 39 East, less the West 10 acres thereof, Indian River Farms Company, according the map or plat thereof as recorded in Plat Book 2, Page 25, of the Public Records of Saint Lucie County, Florida; said land now lying and being in Indian River County, Florida. LESS AND EXCEPT therefrom the following: Less the South 30 feet thereof. Also, less Parcel 105, as described in Official Records Book 3370, Page 1074: All that certain piece, parcel or tract of land situate, lying and being a portion of Tract 8, Section 7, Township 32 South, Range 39 East, according to the last general plat of lands of the Indian River Farms Company as recorded in Plat Book 2, Page 25 of the Public Records of Saint Lucie County, Florida, now lying and being in Indian River County, Florida; said lands being more particularly described as follows, to wit; Commencing for reference at the East 1/4 corner of said Section 7; Thence, bearing North 00 degrees 00 minutes 25 seconds East, along the East line of said Section 7, a distance of 30.72 feet, to a point; Thence, leaving said East line, bearing North 89 degrees 59 minutes 35 seconds West, a distance of 50.00 feet to a point on the North right of way line of 65th Street and the Point and Place of Beginning of the herein described Parcel; Thence bearing North 89 degrees 10 minutes 25 seconds West, along said North line, a distance of 651.57 feet to a point of the West line of the East 20 acres of said Tract 8; Thence leaving said North line, bearing North 00 degrees 00 minutes 25 seconds East, along said West line, a distance of 50.01 feet to as point; Thence leaving said West line, bearing South 89 degrees 10 minutes 25 seconds East, a distance of 455.55 feet to a point; Thence bearing North 45 degrees 25 minutes 00 seconds East, a distance of 56.16 feet to a point; Thence bearing North 00 degrees 00 minutes 25 seconds East, a distance of 1,218.73 feet to a point on the North line of said Tract 8.- Thence ;Thence bearing South 89 degrees 24 minutes 50 seconds East, along said North line, a distance of 156.01 feet to a point on the East line of said Tract 8; Thence bearing South 00 degrees 00 minutes 25 seconds West, along the East line of said Tract 8, a distance of 1,309.39 feet to the Point of Beginning. Subject to all easements, conditions and restrictions as contained within the chain of title. Also, less Parcel 105 Stormwater Management Facility, as described in Official Records Book 3370, Page 1074: All that certain piece, parcel or tract of land situate, lying and being a portion of Tract 8, Section 7, Township 32 South, Range 39 East, according to the last general plat of lands of the Indian River Farms Company as recorded 36 in Plat Book 2, Page 25 of the Public Records of Saint Lucie County, Florida, now lying and being in Indian River County, Florida; said lands being more particularly described as follows, to wit; Commencing for reference at the East 1/4 corner of said Section 7; Thence, bearing North 00 degrees 00 minutes 25 seconds East, along the East line of said Section 7, a distance of 1,339.60 feet, to a point; Thence, leaving said East line, bearing North 89 degrees 24 minutes 50 seconds West, a distance of 50.00 feet to the Northeast corner of said Tract 8; Thence bearing North 89 degrees 24 minutes 50 seconds West, along the North line of said Tract 8, a distance of 156.01 feet to the Point and Place of Beginning of the herein described Parcel; Thence leaving said North line, bearing South 00 degrees 00 minutes 25 seconds West, a distance of 50.00 feet to as point; Thence bearing North 89 degrees 24 minutes 50 seconds West, a distance of 163.00 feet to a point; Thence bearing South 21 degrees 12 minutes 15 seconds West, a distance of 347.22 feet to a point; Thence bearing North 89 degrees 24 minutes 50 seconds West, a distance of 206.97 feet to a point on the West line of the East 20 acres of said Tract 8; Thence bearing North 00 degrees 00 minutes 25 seconds East, along said West line, a distance of 375.00 feet to the point on the aforementioned North line of said Tract 8; Thence leaving said West line, bearing South 89 degrees 24 minutes 50 seconds East, along said North line, a distance of 495.53 feet to the Point of Beginning. Subject to all easements, conditions and restrictions as contained within the chain of title. 37 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Board of County Commissioners THROUGH: John A. Titkanich, Jr., County Administrator David Johnson, Director of Emergency Services Ryan Lloyd, Emergency Management Coordinator FROM: Rachel Ivey, Emergency Management Planner II Department of Emergency Services DATE: October 11, 2023 SUBJECT: Approval of Updated Statewide Mutual Aid Agreement between Indian River County and the Florida Division of Emergency Management It is respectfully requested that the information contained herein be given formal consideration by the Board of County Commissioners at the next scheduled meeting. BACKGROUND: On April 24, 2001, the Board of County Commissioners approved Indian River County's participation in the Statewide Mutual Aid Agreement (SMAA). The agreement was then updated in 2018. The Florida Division of Emergency Management is requesting that all counties update their agreements to the 2023 version. To summarize the agreement, Florida is vulnerable to a wide range of disasters that are likely to cause a disruption of essential services and the destruction of the infrastructure needed to deliver those services. Such disasters may exceed the capability of any one county to respond but other local governments may be able to provide assistance. This Statewide Mutual Aid Agreement provides the assistance for reciprocal emergency aid and assistance in case the disaster exceeds our ability to respond. The 2023 Update to the agreement includes the following provisions: 1. Revises language for adoption by signatories on the signature pages. Provides clarification and direction on any documentation requirements, procedures and disputes regarding reimbursement between the requestor and providing entity. 2. Removes the references to the Form B Attachment to the Resource Support Agreements found on the Division Approved Documents SharePoint site. 3. Add references to the Division's F -ROC documentation and specifies requirements for signatories to use the Division's processes (i.e., F -ROC Forms, Digital reimbursement via DEMES, etc.) for state requested missions. FUNDING: There is no funding related to this agreement. 38 RECOMMENDATION: Staff recommends approval of the attached Resolution and updated 2023 Statewide Mutual Aid Agreement between Indian River County and the Florida Division of Emergency Management. ATTACHMENTS: 1. Original of the Statewide Mutual Aid Agreement. 2. Resolution approving the updated 2023 Statewide Mutual Aid Agreement. 39 for Ron DeSantis, Governor Kevin Guthrie, Executive Director STATEWIDE MUTUAL AID AGREEMENT - 2023 This Agreement is an acknowledgment of receipt by the Florida Division of Emergency Management ("the Division") and the local government ("Participating Party") signing this Agreement. Execution of this agreement replaces all previous iterations and is active until a new agreement is drafted and requested by The Division. This Agreement is based on the existence of the following conditions: A. The State of Florida is vulnerable to a wide range of emergencies and disasters that are likely to cause the disruption of essential services and the destruction of the infrastructure needed to deliver those services. B. Such emergencies and disasters often exceed the emergency response and recovery capabilities of any one county or local government. C. Such incidents may also give rise to unusual and unanticipated physical and technical needs which a local government cannot meetwith existing resources, but that other local governments within the State of Florida may be able to provide. D. The Emergency Management Act, chapter 252, Florida Statutes, provides each local government of the state the authority to develop and enter into mutual aid agreements within the state for reciprocal emergency aid in case of emergencies too extensive to be dealt with unassisted, and through such agreements ensure the timely reimbursement of costs incurred by the local governments which render such assistance. E. Pursuant to chapter 252.32, Florida Statutes, the Division renders mutual aid among the political subdivisions of the state to carry out emergency management functions and responsibilities. F. Pursuant to chapter 252, Florida Statutes, the Division has the authority to coordinate and direct emergency management assistance between local governments and concentrate available resources where needed. Based on the existence of the foregoing conditions, the Parties agree to the following articles: ARTICLE I: DEFINITIONS As used in this Agreement, the following expressions shall have the following meanings: A. The "Agreement" is this Agreement, which shall be referred to as the Statewide Mutual Aid Agreement ("SMAA"). D I V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER 2555 Shumard Oak Boulevard www.FloridaDisaster.ora 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-56,3,] Ron DeSantis, Governor Kevin Guthrie, Executive Director B. The "Division" is the Florida Division of Emergency Management. C. A "Requesting Party" to this Agreement is a Participating Party who requests assistance under this agreement. D. An "Assisting Party" to this Agreement is a Participating Party who provides assistance to a Requesting Party under this agreement. E. The "Period of Assistance" is the time during which an Assisting Party renders assistance to a Requesting Party under this agreement and includes the time necessary for the resources and personnel of the Assisting Party to travel to the place specified by the Requesting Party and the time necessary to return to their place of origin. F. A "Mission" is a documented emergency response activity performed during a Period of Assistance, usually in reference to one operational function or activity. G. A "local government" is any educational district, special district, or any entity that is a "local governmental entity" within the meaning of section 11.45(1)(g), Florida Statutes. H. An "educational district" is any school district within the meaning of section 1001.30, Florida Statutes, and any Florida College System Institution or State University within the meaning of section 1000.21, Florida Statutes. I. A "special district" is any local or regional governmental entity which is an independent special district within the meaning of section 189.012(3), Florida Statutes, established by local, special, or general act, or by rule, ordinance, resolution, or interlocal agreement. J. A "tribal council" is the respective governing bodies of the Seminole Tribe of Florida and Miccosukee Tribe of Indians recognized as special improvement district by section 285.18(1), Florida Statutes. K. An "interlocal agreement" is any agreement between local governments within the meaning of section 163.01(3)(a), Florida Statutes. L. A "Resource Support Agreement" as used in this Agreement refers to a supplemental agreement of support between a Requesting Party and an Assisting Party. M. "Proof of work" as used in this Agreement refers to original and authentic documentation of a single individual or group of individuals' emergency response activity at a tactical level. DIVISION HEADQUARTERS Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER 2555 Shumard Oak Boulevard www.FloridaDisaster.org 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-56,31 Ron DeSantis, Governor Kevin Guthrie, Executive Director N. "Proof of payment" as used in this Agreement refers to original and authentic documentation of an emergency response expenditure made by an Assisting Party. O. A "Reimbursement Package" as used in this Agreement refers to a full account of mission response documentation supported by proof of work and proof of payment. P. Any expressions not assigned definitions elsewhere in this Agreement shall have the definitions assigned them by the Emergency Management Act, Chapter 252, Florida Statutes. ARTICLE II: APPLICABILITY OF THE AGREEMENT Any Participating Party, including the Division, may request assistance under this Agreement for a "major disaster" or "catastrophic disaster" as defined in section 252.34, Florida Statutes, minor disasters, and other such emergencies as lawfully determined by a Participating Party. ARTICLE III: INVOCATION OF THE AGREEMENT In the event of an emergency or anticipated emergency, a Participating Party may request assistance under this Agreement from any other Participating Party or the Division if, in the judgement of the Requesting Party, its own resources are inadequate to meet the needs of the emergency or disaster. A. Any request for assistance under this Agreement may be oral, but within five (5) calendar days must be confirmed in writing by the Requesting Party. All requests for assistance under this Agreement shall be transmitted by the Requesting Party to another Participating Party or the Division. If the Requesting Party transmits its request for Assistance directly to a Participating Party other than the Division, the Requesting Party and Assisting Party shall keep the Division advised of their activities. B. The Division shall relay any requests for assistance under this Agreement to such other Participating Parties as it may deem appropriate and coordinate the activities of the Assisting Parties to ensure timely assistance to the Requesting Party. All such activities shall be carried out in accordance with the State's Comprehensive Emergency Management Plan. ARTICLE IV: RESPONSIBILITIES OF REQUESTING PARTIES To the extent practicable, all Requesting Parties shall provide the following information to their respective county emergency management agency, the Division, and the intended Assisting Party or Parties. In providing such information, Requesting Parties should utilize Section I of the I D 1 V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER I 2555 Shumard Oak Boulevard www.FloridaDisaster.ora 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-5( Kevin Guthrie, Executive Director Resource Support Agreement (RSA) Form, available via the Division approved documents SharePoint site'. A. A description of the Mission to be performed by the Assisting Party; B. A description of the resources and capabilities needed to complete the Mission successfully; C. The location, date, and time personnel and resources from the Assisting Party should arrive at the incident site, staging area, facility, or other location designated by the Requesting Party; D. A description of the health, safety, and working conditions expected for deploying personnel; E. Lodging and meal availability; F. Any logistical requirements; G. A description of any location or facility outside the territorial jurisdiction of the Requesting Party needed to stage incoming resources and personnel; H. The location date, and time for personnel of the Requesting Party to meet and receive the personnel and equipment of the Assisting Party; and I. A technical description of any communications equipment needed to ensure effective information sharing between the Requesting Party, any Assisting Parties, and all relevant responding entities. ARTICLE V: RESPONSIBILITIES OF ASSISTING PARTIES Each Party shall render assistance under this Agreement to any Requesting Party to the extent practicable that its personnel, equipment, resources, and capabilities can render assistance. If upon receiving a request for assistance under this Agreement a Party determines that it has the capacity to render some or all of such assistance, it shall provide the following information without delay to the Requesting Party, the Division, and the Assisting Party's County emergency management agency. In providing such information, the Assisting Party should utilize the Section II of the Resource Support Agreement (RSA) Form, available via the Division approved documents SharePoint site. ' FDEM approved documents such as activity logs and mutual aid forms can be found at: https://portal.floridadisaster.org/projects/FROC/FROC_Documents/Forms/Allitems.aspx?View=%7B6F3CF7BD % 2DCOA4 % 2D4BE2%,2DB809 % 2DC8009D7D068 6%7D I D I V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER I 2555 Shumard Oak Boulevard www.FloridaDisaster.ora 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-51 Ron DeSantis, Governor Kevin Guthrie, Executive Director A. A description of the personnel, equipment, supplies, services and capabilities it has available, together with a description of the qualifications of any skilled personnel; B. An estimate of the time such personnel, equipment, supplies, and services will continue to be available; C. An estimate of the time it will take to deliver such personnel, equipment, supplies, and services to the location(s) specified by the Requesting Party; D. A technical description of any communications and telecommunications equipment available for timely communications with the Requesting Party and other Assisting Parties; E. The names and contact information of all personnel whom the Assisting Party has designated as team leaders or supervisors; and F. An estimated cost for the provision of assistance. ARTICLE VI: RENDITION OF ASSISTANCE The Requesting Party shall afford the emergency response personnel of all Assisting Parties, while operating within the jurisdictional boundaries of the Requesting Party, the same powers, duties, rights, and privileges, except that of arrest unless specifically authorized by the Requesting Party, as are afforded the equivalent emergency response personnel of the Requesting Party. Emergency response personnel of the Assisting Party will remain under the command and control of the Assisting Party, but during the Period of Assistance, the resources and responding personnel of the Assisting Party will perform response activities under the operational and tactical control of the Requesting Party. A. Unless otherwise agreed upon between the Requesting and Assisting Party, the Requesting Party shall be responsible for providing food, water, and shelter to the personnel of the Assisting Party. For Missions performed in areas where there are insufficient resources to support responding personnel and equipment throughout the Period of Assistance, the Assisting Party shall, to the fullest extent practicable, provide their emergency response personnel with the equipment, fuel, supplies, and technical resources necessary to make them self-sufficient throughout the Period of Assistance. When requesting assistance, the Requesting Party may specify that Assisting Parties send only self-sufficient personnel and resources but must specify the length of time self-sufficiency should be maintained. I D I V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER 2555 Shumard Oak Boulevard www.FloridaDisaster.ora 2702 Directors Raw Tallahassee, FL 32399-2100 Orlando, FL 32809-5f Ron DeSantis, Governor Kevin Guthrie, Executive Director B. Unless the Requesting Party has specified the contrary, it shall, to the fullest extent practicable, coordinate all communications between its personnel and the responding personnel of the Assisting Parties, and shall determine and share the frequencies and other technical specifications of all communications equipment to be used, as appropriate, with the deployed personnel of the Assisting Parties. C. Personnel of the Assisting Party who render assistance under this Agreement shall receive the usual wages, salaries, and other compensation as are normally afforded to personnel for emergency response activities within their home jurisdiction, and shall have all the immunities, rights, interests, and privileges applicable to their normal employment. If personnel of the Assisting Party hold local licenses or certifications limited to the jurisdiction of issue, then the Requesting Party shall recognize and honor those licenses or certifications for the duration of the Period of Assistance. ARTICLE VII: REIMBURSEMENT After the Period of Assistance has ended, the Assisting Party shall have 45 days to develop a full reimbursement package for services rendered and resources supplied during the Period of Assistance. All expenses claimed to the Requesting Party must have been incurred in direct response to the emergency as requested by the Requesting Party and must be supported by proof of work and proof of payment. To guide the proper documentation and accountability of expenses, the Assisting Party should utilize the Claim Summary Form, available via the Division approved documents SharePoint site as a guide and summary of expense to collect information to then be formally submitted for review by the Requesting Party. To receive reimbursement for assistance provided under this agreement, the Assisting Party shall provide, at a minimum, the following supporting documentation to the Requesting Party unless otherwise agreed upon between the Requesting and Assisting Parties: A. A complete and authentic description of expenses incurred by the Assisting Party during the Period of Assistance; B. Copy of a current and valid Internal Revenue Service W-9 Form; C. Copies of all relevant payment and travel policies in effect during the Period of Assistance; D. Daily personnel activity logs demonstrating emergency response activities performed for all time claimed (for FDEM reimbursement Division approved activity logs will be required for personnel activity claims); D I V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER 2555 Shumard Oak Boulevard www.FloridaDisaster.oro 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-56,3,j Kevin Guthrie, Executive Director E. Official payroll and travel reimbursement records for all claimed personnel expenses; F. Neat and comprehensive fringe benefit calculations for each position class or category of claimed personnel; G. Written justification for all additional expenses/purchases incurred during the Period of Assistance; H. Proof of payment for additional/miscellaneous expenses incurred during the Period of Assistance Equipment activity logs demonstrating equipment use and operation in support of emergency response activities for all time claimed (for FDEM reimbursement Division approved forms will be required for equipment activity claims); J. Proof of reimbursement to all employees who incurred emergency response expenses with personal money; K. Justification for equipment repair expenses; and L. Copies of any applicable supporting agreements or contracts with justification. If a dispute or disagreement regarding the eligibility of any expense arises, the Requesting Party, Assisting Party, or the Division may elect binding arbitration. If binding arbitration is elected, the Parties must select as an arbitrator any elected official of another Participating Party, or any other official of another Participating Party whose normal duties include emergency management, and the other Participating Party shall also select such an official as an arbitrator, and the arbitrators thus chosen shall select another such official as a third arbitrator. The three (3) arbitrators shall convene by teleconference or videoconference within thirty (30) calendar days to consider any documents and any statements or arguments by the Division, the Requesting Party, or the Assisting Party concerning the protest, and shall render a decision in writing not later than ten (10) business days after the close of the hearing. The decision of a majority of the arbitrators shall bind the parties and shall be final. If the Participating Parties do not elect binding arbitration, this agreement and any disputes arising thereunder shall be governed by the laws of the State of Florida and venue shall be in Leon County, Florida. Nothing in this Agreement shall be construed to create an employer-employee relationship or a partnership or joint venture between the participating parties. Furthermore, nothing contained herein shall constitute a waiver by either Party of its sovereign immunity or the provisions of section 768.28, Florida Statutes. Nothing herein shall be construed as consent by either Party to be sued by third parties. I D I V 1 S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER I 2555 Shumard Oak Boulevard www.FloridaDisaster.orQ 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-51 Ron DeSantis, Governor Kevin Guthrie, Executive Director ARTICLE VIII: COST ELIGIBLE FOR REIMBURSEMENT The costs incurred by the Assisting Party under this Agreement shall be reimbursed as needed to make the Assisting Party whole to the fullest extent practicable. A. Employees of the Assisting Party who render assistance under this Agreement shall be entitled to receive from the Assisting Party all their usual wages, salaries, and any and all other compensation for mobilization, hours worked, and demobilization. Such compensation shall include any and all contributions for insurance and retirement, and such employees shall continue to accumulate seniority at the usual rate. As between the employees and the Assisting Party, the employees shall have all the duties, responsibilities, immunities, rights, interests, and privileges incident to their usual employment. The Requesting Party shall reimburse the Assisting Party for these costs of employment. B. The costs of equipment supplied by the Assisting Party shall be reimbursed at the rental rate established in FEMA' s Schedule of Equipment, or at any other rental rate agreed to by the Requesting Party. In order to be eligible for reimbursement, equipment must be in actual operation performing eligible work. The labor costs of the operator are not included in the rates and should be approved separately from equipment costs. The Assisting Party shall pay for fuels, other consumable supplies, and repairs to its equipment as needed to keep the equipment in a state of operational readiness. Rent for the equipment shall be deemed to include the cost of fuel and other consumable supplies, maintenance, service, repairs, and ordinary wear and tear. With the consent of the Assisting Party, the Requesting Party may provide fuels, consumable supplies, maintenance, and repair services for such equipment at the site. In that event, the Requesting Party may deduct the actual costs of such fuels, consumable supplies, maintenance, and services from the total costs otherwise payable to the Assisting Party. If the equipment is damaged while in use under this Agreement and the Assisting Party receives payment for such damage under any contract of insurance, the Requesting Party may deduct such payment from any item or items billed by the Assisting Party for any of the costs for such damage that may otherwise be payable. C. The Requesting Party shall pay the total costs for the use and consumption of any and all consumable supplies delivered by the Assisting Party for the Requesting Party under this Agreement. In the case of perishable supplies, consumption shall be deemed to include normal deterioration, spoilage, and damage notwithstanding the exercise of reasonable care in its storage and use. Supplies remaining unused shall be returned to the Assisting Party in usable condition upon the close of the Period of Assistance, and the Requesting Party may deduct the cost of such returned supplies from the total costs billed by the Assisting Party for such supplies. If the Assisting Party agrees, the Requesting Party may also replace any and all used consumable supplies with like D I V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER 2555 Shumard Oak Boulevard www. Florid aDisaster.ora 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-56,3,1 Kevin Guthrie, Executive Director supplies in usable condition and of like grade, quality and quantity within the time allowed for reimbursement under this Agreement. D. The Assisting Party shall keep records to document all assistance rendered under this Agreement. Such records shall present information sufficient to meet the audit requirements specified in the regulations of FEMA and any applicable circulars issued by the State of Florida. Upon reasonable notice, the Assisting Party shall make its records available the Requesting Party for inspection or duplication between 8:00 a.m. and 5:00 p.m. on all weekdays, except for official holidays. ARTICLE IX: INSURANCE Each Participating Party shall determine for itself what insurance to procure, if any. With the exceptions in this Article, nothing in this Agreement shall be construed to require any Participating Party to procure insurance. A. Each Participating Party shall procure employers' insurance meeting the requirements of the Workers' Compensation Act, as amended, affording coverage for any of its employees who may be injured while performing any activities under the authority of this Agreement, and shall be provided to each Participating Party. B. Any Participating Party that elects additional insurance affording liability coverage for any activities that may be performed under the authority of this Agreement shall be provided to each Participating Party. C. Subject to the limits of such liability insurance as any Participating Party may elect to procure, nothing in this Agreement shall be construed to waive, in whole or in part, any immunity any Participating Party may have in any judicial or quasi-judicial proceeding. D. Each Participating Party which renders assistance under this Agreement shall be deemed to stand in the relation of an independent contractor to all other Participating Parties and shall not be deemed to be the agent of any other Participating Party. E. Nothing in this Agreement shall be construed to relieve any Participating Party of liability for its own conduct and that of its employees. F. Nothing in this Agreement shall be construed to obligate any Participating Party to indemnify any other Participating Party from liability to third parties. I D I V 1 S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER I 2555 Shumard Oak Boulevard www.FloridaDisaster.orQ 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-56,3A ARTICLE X: GENERAL REQUIREMENTS Kevin Guthrie, Executive Director Notwithstanding anything to the contrary elsewhere in this Agreement, all Participating Parties shall be subject to the following requirements in the performance of this Agreement: A. All Participating Parties shall allow public access to all documents, papers, letters, or other materials subject to the requirements of the Public Records Act, as amended, and made or received by any Participating Party in conjunction with this Agreement. B. No Participating Party may hire employees in violation of the employment restrictions in the Immigration and Nationality Act, as amended. C. No costs reimbursed under this Agreement maybe used directly or indirectly to influence legislation or any other official action by the Legislature of the State of Florida or any of its agencies. D. Any communication to the Division under this Agreement shall be sent via either email, the Division of Emergency Managements Enterprise System (DEMES), or mail to the Response Bureau, Florida Division of Emergency Management, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-2100. E. Any communication to a Participating Party shall be sent to the official or officials specified by that Participating Party. For the purpose of this section, any such communication may be sent by the U.S. Mail, e-mail, or other electronic platforms. ARTICLE XI: EFFECTS OF AGREEMENT Upon its execution by a Participating Party, this Agreement shall have the following effect with respect to that Participating Party: A. The execution of this Agreement by any Participating Party which is a signatory to the Statewide Mutual Aid Agreement of 1994 shall terminate the rights, interests, duties, responsibilities, and obligations of that Participating Party under the Statewide Mutual Aid Agreement of 1994, but such termination shall not affect the liability of the Participating Party for the reimbursement of any costs due under the Statewide Mutual Aid Agreement of 1994, regardless of whether such costs are billed or unbilled. B. The execution of this Agreement by any Participating Party which is a signatory to the Public Works Mutual Aid Agreement shall terminate the rights, interests, duties, responsibilities and obligations of that Participating Party under the Public Works Mutual Aid Agreement, but such termination shall not affect the liability of the Participating Party for the reimbursement of any costs due under the Public Works Mutual Aid Agreement, D I V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER 2555 Shumard Oak Boulevard www. Florid aDisaster. ora 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-56,3,j FDE Ron DeSantis, Governor regardless of whether such costs are billed or unbilled. Kevin Guthrie, Executive Director C. Upon the activation of this Agreement by the Requesting Party, this Agreement shall supersede any other existing agreement between it and any Assisting Party to the extent that the former may be inconsistent with the latter. D. Upon its execution by any Participating Party, this Agreement will continue in effect for one (1) year from its date of execution by that Participating Party, and it shall automatically renew each year after its execution, unless within sixty (60) calendar days before the renewal date the Participating Party notifies the Division, in writing, of its intent to withdraw from the Agreement. E. The Division shall transmit any amendment to this Agreement by sending the amendment to all Participating Parties not later than five (5) business days after its execution by the Division. Such amendment shall take effect not later than sixty (60) calendar days after the date of its execution by the Division and shall then be binding on all Participating Parties. Notwithstanding the preceding sentence, any Participating Party who objects to the amendment may withdraw from the Agreement by notifying the Division in writing of its intent to do so within that time in accordance with section E of this Article. F. A Participating Party may rescind this Agreement at will after providing the other Participating Party a written SMAA withdrawal notice. Such notice shall be provided at least 30 days prior to the date of withdrawal. This 30 -day withdrawal notice must be: written, signed by an appropriate authority, duly authorized on the official letterhead of the Participating Party, and must be sent via email, the Division of Emergency Managements Enterprise System (DEMES), or certified mail. ARTICLE XII: INTERPRETATION AND APPLICATION OF AGREEMENT The interpretation and application of this Agreement shall be governed by the following conditions: A. The obligations and conditions resting upon the Participating Parties under this Agreement are not independent, but dependent. B. Time shall be of the essence of this Agreement, and of the performance of all conditions, obligations, duties, responsibilities, and promises under it. C. This Agreement states all the conditions, obligations, duties, responsibilities, and promises of the Participating Parties with respect to the subject of this Agreement, and there are no conditions, obligations, duties, responsibilities, or promises other than those expressed in this Agreement. D I V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER 2555 Shumard Oak Boulevard www.FloridaDisaster.ora 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-5(L3,1 Kevin Guthrie, Executive Director D. If any sentence, clause, phrase, or other portion of this Agreement is ruled unenforceable or invalid, every other sentence, clause, phrase, or other portion of the Agreement shall remain in full force and effect, it being the intent of the Division and the other Participating Parties that every portion of the Agreement shall be severable from every other portion to the fullest extent practicable. The Division reserves the right, at its sole and absolute discretion, to change, modify, add, or remove portions of any sentence, clause, phrase, or other portion of this Agreement that conflicts with state law, regulation, or policy. If the change is minor, the Division will notify the Participating Party of the change and such changes will become effective immediately; therefore, please check these terms periodically for changes. If the change is substantive, the Participating Parties may be required to execute the Agreement with the adopted changes. Any continued or subsequent use of this Agreement following the posting of minor changes to this Agreement shall signify implied acceptance of such changes. E. The waiver of any obligation or condition in this Agreement by a Participating Party shall not be construed as a waiver of any other obligation or condition in this Agreement. NOTE: This iteration of the State of Florida Statewide Mutual Aid Agreement will replace all previous versions. The Division shall provide reimbursement to Assisting Parties in accordance with the terms and conditions set forth in this Article for missions performed at the direct request of the Division. Division reimbursement eligible expenses must be in direct response to the emergency as requested by the State of Florida. All required cost estimations and claims must be executed through the DEMES Mutual Aid Portal and assisting agencies must use all required FDEM forms for documentation and cost verification. If a Requesting Party has not forwarded a request through the Division, or if an Assisting Party has rendered assistance without being requested to do so by the Division, the Division shall not be liable for the costs of any such assistance. FDEM reserves the right to deny individual reimbursement requests if deemed to not be in direct response to the incident for which asset was requested. IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the date specified below: I D I V I S 1 0 N H E A D Q U A R T E R S Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER I 2555 Shumard Oak Boulevard www.FloridaDisaster.ora 2702 Directors Row Tallahassee, FL 32399-2100 Orlando, FL 32809-54,,31 STATE OF FLOR&A DIVISION OF EMERGENCY Ron DeSantis, Governor Kevin Guthrie, Executive Director FOR ADOPTION BY AN AUTHORITY STATE OF FLORIDA DIVISION OF EMERGENCY MANAGEMENT By: Date: Kevin Guthrie, Executive Director or Ian Guidicelli, Authorized Designee ATTEST: BOARD OF TRUSTEES OF AUTHORITY, STATE OF FLORIDA By: By: Clerk Chairman Date: Approved as to Form: By: Attorney for Board D VISIOaN HEADQUARTERS Telephone: 850-815-4000 STATE LOGISTICS RESPONSE CENTER 5Shuard Oak Boulevard www.FloridaDisaster.ora 2702 Directors Row Tall 2100 FL 32809 5hssee, FL 32399 , RESOLUTION NO. 2023 - Resolution of the Board of County Commissioners of Indian River County, Florida, for Adoption of this Statewide Mutual Aid`Agreement WHEREAS, the State of Florida Emergency Management Act, Chapter 252, authorizes the State and its political subdivisions to provide emergency aid and assistance in the event of a disaster or emergency; and WHEREAS, the statutes also authorize the State to coordinate the provision of any equipment, services, or facilities owned or organized the State or its political subdivisions for use in the affected area upon the request of the duly constituted authority of the area; and WHEREAS, this Resolution authorizes the request, provision, and receipt of interjurisdictional mutual assistance in accordance with the Emergency Management Act, Chapter 252, among political subdivisions within the State; and NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA that: In order to maximize the prompts, full and effective use of resources of all participating governments in the event of an emergency or disaster we hereby adopt the Statewide Mutual Agreement which is attached hereto and incorporated by reference. The foregoing Resolution was offered by Commissioner its adoption. The motion was seconded by Commissioner upon being put to a vote, the vote was as follows: Chairman Vice -Chairman Commissioner Commissioner Commissioner Joseph H. Earman Susan Adams Joseph E. Flescher Deryl Loar Laura Moss The Chair thereupon declared the Resolution duly passed and adopted this .2023. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA BY: Attest: Ryan L. Butler, Clerk of Court and Comptroller Joseph H. Earman, Chairman who moved . and day of 60 INDIAN RIVER COUNTY, FLORIDA CONSENT MEMORANDUM TO: Honorable Board of County Commissioners THROUGH: John A. Titkanich, Jr., County Administrator David Johnson, Director of Emergency Services Ryan Lloyd, Emergency Management Coordinator FROM: Erin Sawyer, Mitigation & Recovery Specialist Department of Emergency Services DATE: October 26, 2023 SUBJECT: Acceptance and Approval of Expenditures of Emergency Management Program Grant (EMPG) Federally -Funded Subgrant Agreement Agreement Number: G0440 It is respectfully requested that the information contained herein be given formal consideration by the Board of County Commissioners at the next scheduled meeting. DESCRIPTION AND CONDITIONS: The intent of the EMPG Base Grant Agreement is to provide each county with the means to successfully maintain and operate an Emergency Management Program. Counties must be able to prepare for, respond to, recover from, and mitigate against natural and man-made disasters/ emergencies. EMPG Base Grant funding is intended to enhance county emergency management plans and programs that are consistent with the State Comprehensive Emergency Management Plan and Program (reference Rule Chapter 27P-6, Florida Administrative Code and Chapter 252, Florida Statutes). The Scope of Work recognizes that each recipient is at a varying level of preparedness, and it is understood that each county has a unique geography, faces unique threats and hazards, and serves a unique population. The State of Florida, Division of Emergency Management provides funding to Indian River County Emergency Management. The total funding allocated with this agreement (G0440) is $80,833. EMPG allowable costs are divided into the following categories as referenced in the 2021-2024 Emergency Management Strategic Plan: organizational, planning, training, exercise & equipment. This is a 100% funded agreement with a non-federal match provided by the Emergency Management Preparedness Assistance (EMPA) grant, there are no additional funds required from Indian River County. The term of the agreement is from October 1, 2023 through March 31, 2025. The state recognizes line -item changes may occur after execution of the contract (i.e. due to cost savings or reprioritization by the Florida Division of Emergency Management (FDEM), with their written approval. For these reasons, staff requests authorization to make these adjustments rather than return the funding for reallocation to other counties. 61 FUNDING: Funds in the amount of $80,833 will be spent out of the General Fund/Emergency Management/EMPG account, 00120825. The full breakdown of use of funds are as follows: Item Amount Account Number Account Desc. Software Services (Annual recurring costs - "Sole Source") $37,346 00120825-035120-05050 Computer Software • WebEOC Quvare-ESI Acquisition, Inc.) • Mobile A uickSeries Travel to emergency management $13,250 00120825-034020-05050 All Travel conferences/classes Registration fees for emergency management $2,750 00120825-035430-05050 Tuition/Registration conferences/classes THIRA Update $27,487 00120825-033190-05050 Other Professional Services TOTAL $80,833 RECOMMENDATION: Staff recommends approval of the EMPG Federally -Funded Subgrant Agreement (G0440), associated expenditures, and authorization of the Chairman to execute this agreement between Indian River County Emergency Management and the State of Florida, Division of Emergency Management. ATTACHMENTS: 1. Two (2) Original Copies of FY 23-24 EMPG Agreement (G0440) 2. IRC Grant Form 62 GRANT NAME: EMPG Grant AGREEMENT# G0440 AMOUNT OF GRANT: $ 80,833 DEPARTMENT RECEIVING GRANT: Emergency Services CONTACT PERSON: David Johnson PHONE NUMBER: 772-226-3947 1. How long is the grant for? 18 Months Starting Date: October 1. 2023 2. Does the grant require you to fund this function after the grant is over? Yes X No 3. Does the grant require a match? X Yes No If yes, does the grant allow the match to be In Kind Services? Yes X No 4. Percentage of match 100% N/A 5. Grant match amount required $ 80,833.00 N/A 6. Where are the matching funds coming from (i.e. In Kind Services; Reserve for Contingency)? EMPA Grant 7. Does the grant cover capital costs or start-up costs? N/A Yes No If no, how much do you think will be needed in capital costs or startup costs? N/A (Attach a detail listing of costs) $ N/A 8. Are you adding any additional positions utilizing the grant fiords? If yes, please list. (If additional space is needed, please attach a schedule.) Yes X No Acct. Descri tion Position Position Position Position Position 011.12 Regular Salaries N/A N/A N/A N/A N/A 011.13 Other Salaries & Wages T N/A N/A N/A N/A N/A 012.11 Social Security N/A N/A N/A N/A N/A 012.12 1 Retirement -Contributions N/A N/A N/A N/A N/A 012.13 Insurance -Life & Health N/A N/A N/A N/A N/A 012.14 Worker's Compensation N/A N/A N/A N/A N/A 012.17 S/Sec. Medicare Matching N/A N/A N/A N/A N/A TOTAL N/A N/A N/A N/A N/A 9. What is the total cost of each position including benefits, capital, start-up, auto expense, travel and operating? Salary and Benefits Operating Costs Capital Total Costs N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A 10. What is the estimated cost of the grant to the county over five years? $ N/A Signature of Preparer: David Johnson Date: October 10, 2023 63 Grant Other Match Costs First Year N/A N/A N/A N/A Second Year N/A N/A N/A N/A Third Year N/A N/A N/A N/A Fourth Year N/A N/A N/A N/A Fifth Year N/A N/A N/A N/A Signature of Preparer: David Johnson Date: October 10, 2023 63 Agreement Number: G0440 FY2023 EMERGENCY MANAGEMENT PERFORMANCE GRANT FEDERALLY FUNDED SUBAWARD AND GRANT AGREEMENT 2 C.F.R. § 200.1 states that a "subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract." As defined by 2 C.F.R. § 200.1, "pass-through entity" means "a non-federal entity that provides a subaward to a Sub -Recipient to carry out part of a federal program." As defined by 2 C.F.R. § 200.1, "Sub -Recipient" means "a non-federal entity that receives a subaward from a pass-through entity to carry out part of a federal award." As defined by 2 C.F.R. § 200.1, "Federal award" means "federal financial assistance that a non-federal entity receives directly from a federal awarding agency or indirectly from a pass-through entity." As defined by 2 C.F.R. § 200.1, "subaward" means "an award provided by a pass-through entity to a Sub -Recipient for the Sub - Recipient to carry out part of a federal award received by the pass-through entity." The following information is provided pursuant to 2 C.F.R. § 200.332: Sub -Recipient's name: Sub -Recipient's unique entity identifier: Federal Award Identification Number (FAIN): Federal Award Date: Subaward Period of Performance Start and End Date: Budget Period Start and End Date: Amount of Federal Funds Obligated by this Agreement: Total Amount of Federal Funds Obligated to the Sub -Recipient by the pass-through entity to include this Agreement: Total Amount of the Federal Award committed to the Sub -Recipient by the pass-through entity: Federal award project description (see FFATA): Name of Federal awarding agency: Name of pass-through entity: Contact information for the pass-through entity: Assistance Listings Number and Title Whether the award is R&D: Indirect cost rate for the Federal award: Indian River County DHS -23 -GPD -042-04-01 10/1/2022 — 09/30/2025 10/1/2023 — 03/31//2025 10/1/2022 — 03/31/2025 $80,833.00 $80,833.00 $80,833.00 See Article 1, Agreement Articles Dept. of Homeland Security FL. Division of Emergency Mgmt. Kevin Guthrie, Executive Director 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 97.042 -Emergency Management Performance Grant (EMPG) Program N/A 31.90% 64 THIS AGREEMENT is entered into by the State of Florida, Division of Emergency Management, with headquarters in Tallahassee, Florida (hereinafter referred to as the "Division"), and Indian River County, (hereinafter referred to as the "Sub -Recipient"). For the purposes of this Agreement, the Division serves as the pass-through entity for a federal award, and the Sub -Recipient serves as the recipient of a subaward. THIS AGREEMENT IS ENTERED INTO BASED ON THE FOLLOWING REPRESENTATIONS: A. The Sub -Recipient represents that it is fully qualified and eligible to receive these grant funds to provide the services identified herein; B. The State of Florida received these grant funds from the Federal Government, and the Division has the authority to subgrant these funds to the Sub -Recipient upon the terms and conditions outlined below; and, C. The Division has statutory authority to disburse the funds under this Agreement. THEREFORE, the Division and the Sub -Recipient agree to the following: (1) APPLICATION OF STATE LAW TO THIS AGREEMENT 2 C.F.R. § 200.302(a) provides: "Each state must expend and account for the Federal award in accordance with state laws and procedures for expending and accounting for the state's own funds..." Therefore, section 215.971, Florida Statutes, entitled "Agreements funded with federal or state assistance," applies to this Agreement. (2) LAWS, RULES, REGULATIONS AND POLICIES a. The Sub -Recipient's performance under this Agreement is subject to 2 C.F.R. Part 200, entitled "Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards." b. As required by Section 215.971(1), Florida Statutes, this Agreement includes: A provision specifying a scope of work that clearly establishes the tasks that the Sub - Recipient is required to perform. A provision dividing the agreement into quantifiable units of deliverables that must be received and accepted in writing by the Division before payment. Each deliverable must be directly related to the scope of work and specify the required minimum level of service to be performed and the criteria for evaluating the successful completion of each deliverable. iii. A provision specifying the financial consequences that apply if the Sub -Recipient fails to perform the minimum level of service required by the agreement. iv. A provision specifying that the Sub -Recipient may expend funds only for allowable costs resulting from obligations incurred during the specified agreement period. A provision specifying that any balance of unobligated funds which has been advanced or paid must be refunded to the Division. vi. A provision specifying that any funds paid in excess of the amount to which the Sub - Recipient is entitled under the terms and conditions of the agreement must be refunded to the Division. c. In addition to the foregoing, the Sub -Recipient and the Division shall be governed by all applicable State of Florida and Federal laws, rules and regulations, including those identified in Attachment D. Any express 2 65 reference in this Agreement to a particular statute, rule, or regulation in no way implies that no other statute, rule, or regulation applies. (3) CONTACT a. In accordance with section 215.971(2)(a)1, Florida Statutes, the Division's Grant Manager shall be responsible for enforcing performance of this Agreement's terms and conditions and shall serve as the Division's liaison with the Sub -Recipient. The Grant Manager for the Division shall: i. Monitor and document Sub -Recipient performance; and, ii. Review and document all deliverables for which the Sub -Recipient requests payment. b. The Division's Grant Manager for this Agreement is: Brandi Kina 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 Telephone: 850-815-4340 Email: Shenycia.Lora(c-)em.myflorida.com c. The name and address of the Representative of the Sub -Recipient responsible for the administration of this Agreement is: David Johnson, Director 4225 43rd Avenue Vero Beach, FL 32967 Telephone: 772-226-3947 Fax: 772-978-1848 Email: djohnson@indianriver.gov 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 shall be provided to the other party. (4) TERMS AND CONDITIONS This Agreement contains all the terms and conditions agreed upon by the parties. (5) EXECUTION This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. This Agreement shall be signed by the Sub -Recipient and returned to the Division for execution no later than forty-five (45) days following initial notification of receipt. Failure to return the signed agreement by the deadline may result in termination of the grant award. (6) MODIFICATION Either party may request modification of the provisions of this Agreement. Changes which are agreed upon shall be valid only when in writing, signed by each of the parties, and attached to the original of this Agreement. 3 66 Subrecipients may initiate a one-time extension of the period of performance by up to six (6) months unless one or more of the conditions outlined in (i) through (iii) of this section apply. For one-time extensions, the subrecipient shall notify the Division in writing with the supporting reasons and revised period of performance at least one hundred eighty (180) calendar days before the end of the period of performance. This one-time extension shall not be exercised merely for the purpose of spending down the award balance. Extensions require explicit prior Division approval when: (i) The terms and conditions of the federal award prohibit the extension. (ii) The extension requires additional federal funds. (iii) The extension involves any change in the approved objectives or scope of the project. (7) SCOPE OF WORK. The Sub -Recipient shall perform the work in accordance with the Budget and Scope of Work, Attachments A and B of this Agreement. (8) PERIOD OF AGREEMENT. This Agreement shall begin October 1, 2023 and shall end March 31, 2025 unless terminated earlier in accordance with the provisions of Paragraph (17) of this Agreement. Consistent with the definition of "period of performance" contained in 2 C.F.R. § 200.1, the term "period of agreement" refers to the time during which the Sub - Recipient "may incur new obligations to carry out the work authorized under" this Agreement. In accordance with 2 C.F.R. § 200.1, the Sub -Recipient may receive reimbursement under this Agreement only for "allowable costs incurred during the period of performance." In accordance with section 215.971(1)(d), Florida Statutes, the Sub -Recipient may expend funds authorized by this Agreement "only for allowable costs resulting from obligations incurred during" the period of agreement. (9) FUNDING a. This is a cost -reimbursement agreement, subject to the availability of funds. b. 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 either Chapter 216, Florida Statutes, or the Florida Constitution. c. The Division shall reimburse the Sub -Recipient only for allowable costs incurred by the Sub -Recipient in the successful completion of each deliverable. The maximum reimbursement amount for each deliverable is outlined in Attachment A and B of this Agreement ("Budget and Scope of Work"). The maximum reimbursement amount for the entirety of this Agreement is $80,833.00 d. As required by 2 C.F.R. § 200.415(a), any request for payment under this Agreement shall include a certification, signed by an official who is authorized to legally bind the Sub -Recipient, which reads as follows: "By signing this report, I certify to the best of my knowledge and belief that the report is true, complete, and accurate, and the expenditures, disbursements and cash receipts are for the purposes and objectives set forth in the terms and conditions of the Federal award. I am aware that any false, fictitious, or fraudulent information, or the omission of any material fact, may subject me to criminal, civil or administrative penalties for fraud, false statements, false claims or otherwise. (U.S. Code Title 18, Section 1001 and Title 31, Sections 3729-3730 and 3801-3812)." C! 67 e. The Division shall review any request for reimbursement by comparing the documentation provided by the Sub -Recipient against a performance measure, outlined in Attachment B, that clearly delineates: The required minimum acceptable level of service to be performed; and, The criteria for evaluating the successful completion of each deliverable. f. The performance measure required by section 215.971(1)(b), Florida Statutes, remains consistent with the requirement for a "performance goal", which is defined in 2 C.F.R. § 200.1 as "a target level of performance expressed as a tangible, measurable objective, against which actual achievement can be compared." It also remains consistent with the requirement, contained in 2 C.F.R. § 200.329, that the Division and the Sub -Recipient "relate financial data to performance goals and objectives of the Federal award." g. If authorized by the federal awarding agency, then the Division shall reimburse the Sub -Recipient for overtime expenses in accordance with 2 C.F.R. § 200.430 ("Compensation—personal services") and 2 C.F.R. § 200.431 ("Compensation—fringe benefits"). If the Sub -Recipient seeks reimbursement for overtime expenses for periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause (see 29 U.S.C. § 207(e)(2)), then the Division shall treat the expense as a fringe benefit. 2 C.F.R. § 200.431(a) defines fringe benefits as "allowances and services provided by employers to their employees as compensation in addition to regular salaries and wages." Fringe benefits are allowable under this Agreement as long as the benefits are reasonable and are required by law, Sub -Recipient -employee agreement, or an established policy of the Sub -Recipient. 2 C.F.R. § 200.431(b) provides that the cost of fringe benefits in the form of regular compensation paid to employees during periods of authorized absences from the job, such as for annual leave, family -related leave, sick leave, holidays, court leave, military leave, administrative leave, and other similar benefits, are allowable if all of the following criteria are met: They are provided under established written leave policies; ii. The costs are equitably allocated to all related activities, including federal awards; and, iii. The accounting basis (cash or accrual) selected for costing each type of leave is consistently followed by the non-federal entity or specified grouping of employees. h. If authorized by the federal awarding agency, then the Division shall reimburse the Sub -Recipient for travel expenses in accordance with 2 C.F.R. § 200.475. Reimbursement for travel shall be in accordance with section 112.061, Florida Statutes, which includes submission of the claim on the approved state travel voucher. If the Sub - Recipient seeks reimbursement for travel costs that exceed the amounts stated in section 112.061(6)(b), Florida Statutes ($6 for breakfast, $11 for lunch, and $19 for dinner), then the Sub -Recipient shall provide documentation that: The costs are reasonable and do not exceed charges normally allowed by the Sub -Recipient in its regular operations as a result of the Sub -Recipient's written travel policy; and, ii. Participation of the individual in the travel is necessary to the Federal award. i. The Division's grant manager, as required by section 215.971(2)(c), Florida Statutes, shall reconcile and verify all funds received against all funds expended during the grant agreement period and produce a final reconciliation report. The final report shall identify any funds paid in excess of the expenditures incurred by the Sub - Recipient. j. As defined by 2 C.F.R. § 200.1, the term "improper payment" means or includes: 68 Any payment that should not have been made or that was made in an incorrect amount (including overpayments and underpayments) under statutory, contractual, administrative, or other legally applicable requirements; and, Any payment to an ineligible party, any payment for an ineligible good or service, any duplicate payment, any payment for a good or service not received (except for such payments where authorized by law), any payment that does not account for credit for applicable discounts, and any payment where insufficient or lack of documentation prevents a reviewer from discerning whether a payment was proper. k. Any advance payment under this Agreement is subject to section 216.181(16), Florida Statutes. All advances are required to be held in an interest-bearing account and may not exceed fifty percent of the grant award. If an advance payment is requested, an estimated expense table and justification statement shall be included with this Agreement as indicated in Attachment E, Justification of Advance Payment. Attachment E shall specify the amount of advance disbursement requested and provide an explanation of the necessity for and proposed use of the funds. (10) RECORDS a. As required by 2 C.F.R. § 200.337, the federal awarding agency, Inspectors General, the Comptroller General of the United States, and the Division, or any of their authorized representatives, shall enjoy the right of access to any documents, papers, or other records of the Sub -Recipient which are pertinent to the Federal award, in order to make audits, examinations, excerpts, and transcripts. The right of access also includes timely and reasonable access to the Sub -Recipient's personnel for the purpose of interview and discussion related to such documents. Finally, the right of access is not limited to the required retention period but lasts as long as the records are retained. b. As required by sections 20.055(6)(c) and 215.97(5)(b), Florida Statutes, the Division, the Chief Inspector General of the State of Florida, the Florida Auditor General, or any of their authorized representatives, shall enjoy the right of access to any documents, financial statements, papers, or other records of the Sub -Recipient which are pertinent to this Agreement, in order to make audits, examinations, excerpts, and transcripts. The right of access also includes timely and reasonable access to the Sub -Recipient's personnel for the purpose of interview and discussion related to such documents. c. As required by 2 C.F.R. § 200.334, the Sub -Recipient shall retain sufficient records to show its compliance with the terms of this Agreement, as well as the compliance of all subcontractors or consultants paid from funds under this Agreement for a period of three (3) years from the date of submission of the final expenditure report. The following are the only exceptions to the three (3) year requirement: Financial records, supporting documents, statistical records, and all other non-federal entity records pertinent to a federal award shall be retained for a period of three (3) years from the date of submission of the final expenditure report or, for federal awards that are renewed quarterly or annually, from the date of the submission of the quarterly or annual financial report, respectively, as reported to the federal awarding agency or pass-through entity in the case of a Sub -Recipient. federal awarding agencies and pass- through entities shall not impose any other record retention requirements upon non-federal entities. i. If any litigation, claim, or audit is started before the expiration of the three (3) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved and final action taken. 0 69 ii. When the non-federal entity is notified in writing by the federal awarding agency, cognizant agency for audit, oversight agency for audit, cognizant agency for indirect costs, or pass-through entity to extend the retention period. iii. Records for real property and equipment acquired with federal funds shall be retained for three (3) years after final disposition. iv. When records are transferred to or maintained by the federal awarding agency or pass-through entity, the three (3) year retention requirement is not applicable to the non-federal entity. V. Records for program income transactions after the period of performance. In some cases, recipients shall report program income after the period of performance. Where there is such a requirement, the retention period for the records pertaining to the earning of the program income starts from the end of the non-federal entity's fiscal year in which the program income is earned. vi. Indirect cost rate proposals and cost allocations plans. This paragraph applies to the following types of documents and their supporting records: Indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates). 1. If submitted for negotiation. If the proposal, plan, or other computation is required to be submitted to the federal Government (or to the pass-through entity) to form the basis for negotiation of the rate, then the three (3) year retention period for its supporting records starts from the date of such submission. 2. If not submitted for negotiation. If the proposal, plan, or other computation is not required to be submitted to the federal Government (or to the pass-through entity) for negotiation purposes, then the three (3) year retention period for the proposal, plan, or computation and its supporting records starts from the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation. d. In accordance with 2 C.F.R. § 200.335, the federal awarding agency shall request transfer of certain records to its custody from the Division or the Sub -Recipient when it determines that the records possess long-term retention value. However, in order to avoid duplicate recordkeeping, the federal awarding agency may make arrangements for the non-federal entity to retain any records that are continuously needed for joint use. e. In accordance with 2 C.F.R. § 200.336, the Division shall always provide or accept paper versions of Agreement information to and from the Sub -Recipient upon request. If paper copies are submitted, then the Division shall not require more than an original and two copies. When original records are electronic and cannot be altered, there is no need to create and retain paper copies. When original records are paper, electronic versions may be substituted through the use of duplication or other forms of electronic media provided that they are subject to periodic quality control reviews, provide reasonable safeguards against alteration, and remain readable. f. As required by 2 C.F.R. § 200.303(e), the Sub -Recipient shall take reasonable measures to safeguard protected personally identifiable information and other information the federal awarding agency or the Division designates as sensitive or the Sub -Recipient considers sensitive consistent with applicable federal, state, local, and tribal laws regarding privacy and obligations of confidentiality. g. Section 286.011, Florida Statutes (Florida's Government in the Sunshine Law), provides the citizens of Florida with a right of access to governmental proceedings and mandates three, basic requirements: (1) meetings of 70 public boards or commissions shall be open to the public; (2) reasonable notice of such meetings shall be given; and (3) minutes of the meetings shall be taken and promptly recorded. The mere receipt of public funds by a private entity, standing alone, is insufficient to bring that entity within the ambit of the open government requirements. However, Section 286.011, Florida Statutes (Florida's Government in the Sunshine Law), also applies to private entities that provide services to governmental agencies and that act on behalf of those agencies in the agencies' performance of their public duties. If a public agency delegates the performance of its public purpose to a private entity, then, to the extent that private entity is performing that public purpose, Section 286.011, Florida Statutes, the Government in the Sunshine Law applies. For example, if a volunteer fire department provides firefighting services to a governmental entity and uses facilities and equipment purchased with public funds, then Section 286.011, Florida Statutes, (Government in the Sunshine Law) applies to board of directors for that volunteer fire department. Thus, to the extent that the Government in the Sunshine Law applies to the Sub -Recipient based upon the funds provided under this Agreement, the meetings of the Sub -Recipient's governing board or the meetings of any subcommittee making recommendations to the governing board may be subject to open government requirements. These meetings shall be publicly noticed, open to the public, and the minutes of all the meetings shall be public records, available to the public in accordance with chapter 119, Florida Statutes. h. Chapter 119, Florida Statutes (Florida's Public Records Law), provides a right of access to the records of the state and local governments as well as to private entities acting on their behalf. Unless specifically exempted from disclosure by the Legislature, all materials made or received by a governmental agency (or a private entity acting on behalf of such an agency) in conjunction with official business which are used to perpetuate, communicate, or formalize knowledge qualify as public records subject to public inspection. The mere receipt of public funds by a private entity, standing alone, is insufficient to bring that entity within the ambit of the public record requirements. However, when a public entity delegates a public function to a private entity, the records generated by the private entity's performance of that duty become public records. Thus, the nature and scope of the services provided by a private entity determine whether that entity is acting on behalf of a public agency and is therefore subject to the requirements of chapter 119, Florida Statutes. i. The Sub -Recipient shall maintain all records for the Sub -Recipient and for all subcontractors or consultants to be paid from funds provided under this Agreement, including documentation of all program costs, in a form sufficient to determine compliance with the requirements and objectives of the Program Budget and Scope of Work - Attachment A and B - and all other applicable laws and regulations. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (850) 815-7671, Records@em.myflorida.com, or 2555 Shumard Oak Boulevard, Tallahassee, FL 32399. (11) AUDITS F n. a. The Sub -Recipient shall comply with the audit requirements contained in 2 C.F.R. Part 200, Subpart 71 b. In accounting for the receipt and expenditure of funds under this Agreement, the Sub -Recipient shall follow Generally Accepted Accounting Principles ("GAAP"). As defined by 2 C.F.R. § 200.1, GAAP "has the meaning specified in accounting standards issued by the Government Accounting Standards Board (GASB) and the Financial Accounting Standards Board (FASB)." c. When conducting an audit of the Sub -Recipient's performance under this Agreement, the Division shall use Generally Accepted Government Auditing Standards ("GAGAS"). As defined by 2 C.F.R. § 200.1, GAGAS, "also known as the Yellow Book, means generally accepted government auditing standards issued by the Comptroller General of the United States, which are applicable to financial audits." d. If an audit shows that all or any portion of the funds disbursed were not spent in accordance with the conditions of this Agreement, the Sub -Recipient shall be held liable for reimbursement to the Division of all funds not spent in accordance with these applicable regulations and Agreement provisions within thirty (30) days after the Division has notified the Sub -Recipient of such non-compliance. e. The Sub -Recipient shall have all audits completed by an independent auditor, which is defined in section 215.97(2)(i), Florida Statutes, as "an independent certified public accountant licensed under chapter 473." The independent auditor shall state that the audit complied with the applicable provisions noted above. The audit shall be received by the Division no later than nine (9) months from the end of the Sub -Recipient's fiscal year. f. The Sub -Recipient shall send copies of reporting packages for audits conducted in accordance with 2 C.F.R. Part 200, by or on behalf of the Sub -Recipient, to the Division at the following address: DEMSingleAudit@em.myflorida.com OR Office of the inspector General 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 g. The Sub -Recipient shall send the Single Audit reporting package and Form SF -SAC to the Federal Audit Clearinghouse by submission online at: https://facides.census.gov h. The Sub -Recipient shall send any management letter issued by the auditor to the Division at the following address: DEMSingleAudit(cbem.myflorida.com OR Office of the Inspector General 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 (12) REPORTS a. Consistent with 2 C.F.R. § 200.328, the Sub -Recipient shall provide the Division with quarterly reports and a close-out report. These reports shall include the current status and progress by the Sub -Recipient and all I 72 subcontractors in completing the work described in Attachment B -Scope of Work and the expenditure of funds under this Agreement, in addition to any other information requested by the Division. b. Quarterly reports are due to the Division no later than thirty (30) days after the end of each quarter of the program year and shall be sent each quarter until submission of the close-out report. The ending dates for each quarter of the program year are March 31, June 30, September 30, and December 31. c. The close-out report is due sixty (60) days after termination of this Agreement or thirty (30) days after completion of the activities contained in this Agreement, whichever first occurs. d. If all required reports and copies are not sent to the Division or are not completed in a manner acceptable to the Division, then the Division may withhold further payments until they are completed or may take other action as stated in Paragraph (16) REMEDIES. "Acceptable to the Division" means that the work product was completed in accordance with Attachments A and B of this Agreement. the Division. e. The Sub -Recipient shall provide additional program updates or information that maybe required by f. The Sub -Recipient shall provide additional reports and information identified in Attachment B. (13) MONITORING. a. Consistent with 2 C.F.R. § 200.328 the Sub -Recipient shall monitor its performance under this Agreement, as well as that of its subcontractors and/or consultants who are paid from funds provided under this Agreement, to ensure that time schedules are being met, the Schedule of Deliverables and Scope of Work are being accomplished within the specified time periods, and other performance goals are being achieved. A review shall be done for each function or activity in Attachment B to this Agreement and reported in the quarterly report. b. In addition to reviews of audits, monitoring procedures may include, but not be limited to, On-site visits by Division staff, limited scope audits, and/or other procedures. The Sub -Recipient agrees to comply and cooperate with any monitoring procedures/processes deemed appropriate by the Division. In the event that the Division determines that a limited scope audit of the Sub -Recipient is appropriate, the Sub -Recipient agrees to comply with any additional instructions provided by the Division to the Sub -Recipient regarding such audit. The Sub -Recipient further agrees to comply and cooperate with any inspections, reviews, investigations or audits deemed necessary by the Florida Chief Financial Officer or Auditor General. In addition, the Division shall monitor the performance and financial management by the Sub -Recipient throughout the contract term to ensure timely completion of all tasks. (14) LIABILITY a. Unless Sub -Recipient is a State agency or subdivision, as defined in section 768.28(2), Florida Statutes, the Sub -Recipient is solely responsible to parties it deals with in carrying out the terms of this Agreement; as authorized by section 768.28(19), Florida Statutes, Sub -Recipient shall hold the Division harmless against all claims of whatever nature by third parties arising from the work performance under this Agreement. For purposes of this Agreement, Sub -Recipient agrees that it is not an employee or agent of the Division but is an independent contractor. b. As required by section 768.28(19), Florida Statutes, any Sub -Recipient which is a state agency or subdivision, as defined in section 768.28(2), Florida Statutes, agrees to be fully responsible for its negligent or tortious acts or omissions which result in claims or suits against the Division, and agrees to be liable for any damages proximately 10 73 caused by the acts or omissions to the extent set forth in Section 768.28, Florida Statutes. Nothing herein is intended to serve as a waiver of sovereign immunity by any Sub -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. c. As defined in section 200.310 Insurance Coverage: The non-federal entity shall, at a minimum, provide the equivalent insurance coverage for real property and equipment acquired or improved with federal funds as provided to property owned by the non-federal entity. Federally -owned property need not be insured unless required by the terms and conditions of the federal award. (15) DEFAULT If any of the following events occur ("Events of Default"), all obligations on the part of the Division to make further payment of funds shall terminate and the Division has the option to exercise any of its remedies set forth in Paragraph (16); however, the Division may make payments or partial payments after any events of default without waiving the right to exercise such remedies, and without becoming liable to make any further payment if: a. Any warranty or representation made by the Sub -Recipient in this Agreement or any previous agreement with the Division is or becomes false or misleading in any respect, or if the Sub -Recipient fails to keep or perform any of the obligations, terms or covenants in this Agreement or any previous agreement with the Division and has not cured them in timely fashion, or is unable or unwilling to meet its obligations under this Agreement; b. Material adverse changes occur in the financial condition of the Sub -Recipient at anytime during the term of this Agreement, and the Sub -Recipient fails to cure this adverse change within thirty (30) days from the date written notice is sent by the Division; c. Any reports required by this Agreement have not been submitted to the Division or have been submitted with incorrect, incomplete, or insufficient information; or, d. The Sub -Recipient has failed to perform and complete on time any of its obligations under this Agreement. (16) REMEDIES If an Event of Default occurs, then the Division shall, after thirty (30) calendar days written notice to the Sub -Recipient and upon the Sub -Recipient's failure to cure within those thirty (30) days, exercise any one or more of the following remedies, either concurrently or consecutively: a. Terminate this Agreement, provided that the Sub -Recipient is given at least thirty (30) days prior written notice of the termination. The notice shall be effective when placed in the United States, first class mail, postage prepaid, by registered or certified mail -return receipt requested, to the address in paragraph (3) herein; b. Begin 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. Require that the Sub -Recipient refund to the Division any monies used for ineligible purposes under the laws, rules and regulations governing the use of these funds. e. Exercise any corrective or remedial actions, to include but not be limited to: Request additional information from the Sub -Recipient to determine the reasons for or the extent of non-compliance or lack of performance, 11 74 not corrected, ii. Issue a written warning to advise that more serious measures may be taken if the situation is iii. Advise the Sub -Recipient to suspend, discontinue or refrain from incurring costs for any activities in question or iv. Require the Sub -Recipient to reimburse the Division for the amount of costs incurred for any items determined to be ineligible; f. The Division may Administratively close an Agreement. The Division may use the administrative close- out process when a Sub -Recipient is not responsive to reasonable efforts to collect required reports needed to complete the standard close-out process. The Division shall make three (3) written attempts to collect required reports before initiating administrative close-out. In addition, if an agreement is administratively closed, the Division may decide to impose remedies for noncompliance per 2 C.F.R. § 200.339, consider this information in reviewing future award applications, or apply special conditions to existing or future awards. If the Division needs to administratively close an agreement, this may negatively impact a Sub -Recipient's ability to obtain future funding; and g. Exercise any other rights or remedies which may be available under law. Pursuing any of the above remedies shall not stop the Division from pursuing any other remedies in this Agreement or provided at law or in equity. If the Division waives any right or remedy in this Agreement or fails to insist on strict performance by the Sub -Recipient, it shall not affect, extend or waive any other right or remedy of the Division, or affect the later exercise of the same right or remedy by the Division for any other default by the Sub -Recipient. (17) TERMINATION a. The Division may terminate this Agreement for cause after thirty days (30) written notice. Cause can include misuse of funds, fraud, lack of compliance with applicable rules, laws and regulations, failure to perform on time, and refusal by the Sub -Recipient to permit public access to any document, paper, letter, or other material subject to disclosure under chapter 119, Florida Statutes, as amended. b. The Division may terminate this Agreement for cause after rejecting an appeal submitted due to noncompliance, nonactivity, and/or a lack of expenditures for four (4) consecutive quarterly reporting periods. c. The Division may terminate this Agreement for convenience or when it determines, in its sole discretion, that continuing the Agreement would not produce beneficial results in line with the further expenditure of funds, by providing the Sub -Recipient with thirty (30) calendar days prior written notice. d. The parties may agree to terminate this Agreement for their mutual convenience through a written amendment of this Agreement. The amendment shall state the effective date of the termination and the procedures for proper closeout of the Agreement. e. In the event that this Agreement is terminated, the Sub -Recipient shall not incur new obligations for the terminated portion of the Agreement after the Sub -Recipient has received the notification of termination. The Sub - Recipient shall cancel as many outstanding obligations as possible. Costs incurred after receipt of the termination notice shall be disallowed. The Sub -Recipient shall not be relieved of liability to the Division because of any breach of Agreement by the Sub -Recipient. The Division may, to the extent authorized by law, withhold payments to the Sub - 12 75 Recipient for the purpose of set-off until the exact amount of damages due the Division from the Sub -Recipient is determined. (18) PROCUREMENT a. The Sub -Recipient shall ensure that any procurement involving funds authorized by the Agreement complies with all applicable federal and state laws and regulations, to include 2 C.F.R. §§ 200.318 through 200.327 as well as Appendix II to 2 C.F.R. Part 200 (entitled "Contract Provisions for Non -Federal Entity Contracts Under Federal Awards"). b. As required by 2 C.F.R. § 200.318(i), the Sub -Recipient shall "maintain records sufficient to detail the history of procurement. These records shall include but are not necessarily limited to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price." c. As required by 2 C.F.R. § 200.318(b), the Sub -Recipient shall "maintain oversight to ensure that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders." In order to demonstrate compliance with this requirement, the Sub -Recipient shall document, in its quarterly report to the Division, the progress of any and all subcontractors performing work under this Agreement. d. Except for procurements by micro -purchases pursuant to 2 C.F.R. § 200.320(a)(1) or procurements by small purchase procedures pursuant to 2 C.F.R. § 200.320(a)(2), if the Sub -Recipient chooses to subcontract any of the work required under this Agreement, then the Sub -Recipient shall forward to the Division a copy of any solicitation (whether competitive or non-competitive) at least ten (10) days prior to the publication or communication of the solicitation. The Division shall review the solicitation and provide comments, if any, to the Sub -Recipient within seven (7) business days. Consistent with 2 C.F.R. § 200.325, the Division shall review the solicitation for compliance with the procurement standards outlined in 2 C.F.R. § 200.318 through 200.327 as well as Appendix II to 2 C.F.R. Part 200. Consistent with 2 C.F.R. § 200.318(k), the Division shall not substitute its judgment for that of the Sub -Recipient. While the Sub -Recipient does not need the approval of the Division in order to publish a competitive solicitation, this review may allow the Division to identify deficiencies in the vendor requirements or in the commodity or service specifications. The Division's review and comments shall not constitute an approval of the solicitation. Regardless of the Division's review, the Sub -Recipient remains bound by all applicable laws, regulations, and agreement terms. If during its review the Division identifies any deficiencies, then the Division shall communicate those deficiencies to the Sub -Recipient as quickly as possible within the seven (7) business day window outlined above. If the Sub -Recipient publishes a competitive solicitation after receiving comments from the Division that the solicitation is deficient, then the Division may.- Terminate ay: above; and, Terminate this Agreement in accordance with the provisions outlined in paragraph (17) Refuse to reimburse the Sub -Recipient for any costs associated with that solicitation. e. Except for procurements by micro -purchases pursuant to 2 C.F.R. § 200.320(a)(1) or procurements by small purchase procedures pursuant to 2 C.F.R. § 200.320(a)(2), if the Sub -Recipient chooses to subcontract any of the work required under this Agreement, then the Sub -Recipient shall forward to the Division a copy of any contemplated contract prior to contract execution. The Division shall review the unexecuted contract and provide comments, if any, to the Sub -Recipient within seven (7) business days. Consistent with 2 C.F.R. § 200.325, the Division shall review the unexecuted contract for compliance with the procurement standards outlined in 2 C.F.R. § 200.318 through 200.327 as 13 76 well as Appendix II to 2 C.F.R. Part 200. Consistent with 2 C.F.R. § 200.318(k), the Division shall not substitute its judgment for that of the Sub -Recipient. While the Sub -Recipient does not need the approval of the Division in order to execute a subcontract, this review may allow the Division to identify deficiencies in the terms and conditions of the subcontract as well as deficiencies in the procurement process that led to the subcontract. The Division's review and comments shall not constitute an approval of the subcontract. Regardless of the Division's review, the Sub -Recipient remains bound by all applicable laws, regulations, and agreement terms. If during its review the Division identifies any deficiencies, then the Division shall communicate those deficiencies to the Sub -Recipient as quickly as possible within the seven (7) business day window outlined above. If the Sub -Recipient executes a subcontract after receiving a communication from the Division that the subcontract is non-compliant, then the Division may: above -land, Terminate this Agreement in accordance with the provisions outlined in paragraph (17) ii. Refuse to reimburse the Sub -Recipient for any costs associated with that subcontract. f. The Sub -Recipient agrees to include in the subcontract that (i) the subcontractor is bound by the terms of this Agreement, (ii) the subcontractor is bound by all applicable state and federal laws and regulations, and (iii) the subcontractor shall hold the Division and Sub -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. effected g. As required by 2 C.F.R. § 200.318(c)(1), the Sub -Recipient shall "maintain written standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award and administration of contracts." h. As required by 2 C.F.R. § 200.319(b) contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals shall be excluded from competing for such procurements. The Sub -Recipient or pass-thru entity shall disclose to the Division, in writing, any real or potential conflict of interest that may arise during the administration of the Federal award, as defined by federal statutes or regulations, or their own existing policies, within five (5) days of learning of the conflict of interest. "Conflict of interest" is considered as any situation where an employee, officer, or agent, any members of his or her immediate family, or his or her partner has a close personal relationship, business relationship, or professional relationship, with a recipient or Sub -Recipient. i. As required by 2 C.F.R. § 200.319(a), the Sub -Recipient shall conduct any procurement under this agreement "in a manner providing full and open competition." Accordingly, the Sub -Recipient shall not: i. Place unreasonable requirements on firms in order for them to qualify to do business; ii. Require unnecessary experience or excessive bonding; iii. Use noncompetitive pricing practices between firms or between affiliated companies; iv. Execute noncompetitive contracts to consultants that are on retainer contracts; V. Authorize, condone, or ignore organizational conflicts of interest; vi. Specify only a brand name product without allowing vendors to offer an equivalent; vii. Specify a brand name product instead of describing the performance, specifications, or other relevant requirements that pertain to the commodity or service solicited by the procurement; viii. Engage in any arbitrary action during the procurement process; or, 14 77 ix. Allow a vendor to bid on a contract if that bidder was involved with developing or drafting the specifications, requirements, statement of work, invitation to bid, or request for proposals. j. "Except in those cases where applicable Federal statutes expressly mandate or encourage" otherwise, the Sub -Recipient, as required by 2 C.F.R. § 200.319(c), shall not use a geographic preference when procuring commodities or services under this Agreement. k. The Sub -Recipient shall conduct any procurement involving invitations to bid (i.e. sealed bids) in accordance with 2 C.F.R. § 200.320(b)(1) as well as section 287.057(1)(a), Florida Statutes. I. The Sub -Recipient shall conduct any procurement involving requests for proposals (i.e. competitive proposals) in accordance with 2 C.F.R. § 200.320(b)(2) as well as section 287.057(1)(b), Florida Statutes. m. For each subcontract, the Sub -Recipient shall provide information to the Division as to whether that subcontractor is a minority business enterprise, as defined in Section 288.703, Florida Statutes, except for the requirement the subcontractor be domiciled in Florida, on the required Procurement Method Report (Form 5). Additionally, the Sub -Recipient shall comply with the requirements of 2 C.F.R. § 200.321 ("Contracting with small and minority businesses, women's business enterprises, and labor surplus area firms"). n. The Federal Emergency Management Agency (FEMA) has developed helpful resources for Sub - Recipients using federal grant funds for procurements. These resources are generally available at https://www.fema.gov/grants/procurement. FEMA periodically updates this resource page so please check back for the latest information. While not all the provisions discussed in the resources are applicable to this subgrant agreement, the Sub -Recipient may find these resources helpful when drafting its solicitation and contract for compliance with the Federal procurement standards outlined in 2 C.F.R. §§ 200.318 through 200.327 as well as Appendix II to 2 C.F.R. Part 200. (19) ATTACHMENTS AND EXHIBITS a. All attachments to this Agreement are incorporated as if set out fully. b. In the event of any inconsistencies or conflict between the language of this Agreement and the attachments, the language of the attachments shall control, but only to the extent of the conflict or inconsistency. c. This Agreement has the following attachments: i. Exhibit 1 - Funding Sources i. Exhibit 2 — Certification Regarding Telecommunications and Video Restrictions iii. Exhibit 3 — Certification Regarding Lobbying iv. Attachment A — Program Budget V. Attachment B — Scope of Work vi. Attachment C — Deliverables and Performance vii. Attachment D — Program Statutes and Regulations viii. Attachment E — Justification of Advance Payment ix. Attachment F — Warranties and Representations X. Attachment G — Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion xi. Attachment H — Statement of Assurances 15 78 xii. Attachment I — Mandatory Contract Provisions xiii. Attachment J — Financial and Program Monitoring Guidelines xiv. Attachment K — EHP Guidelines xv. Attachment L — Reimbursement Checklist xvi. Attachment M— Foreign Country of Concern Affidavit — Personal Identifying Information Contract (20) PAYMENTS a. If the necessary funds are not available to fund this Agreement as a result of action by the United States Congress, the Federal Office of Management and Budgeting, the State Chief Financial Officer or under subparagraph (9)b. of this Agreement, all obligations on the part of the Division to make any further payment of funds shall terminate, and the Sub -Recipient shall submit its closeout report within thirty (30) days of receiving notice from the Division. b. Invoices shall be submitted at least quarterly and shall include the supporting documentation for all costs of the project or services. The final invoice shall be submitted within thirty (30) days after the expiration date of the agreement. An explanation of any circumstances prohibiting the submittal of quarterly invoices shall be submitted to the Division grant manager as part of the Sub -Recipient's quarterly reporting as referenced in Paragraph (12) of this Agreement. c. Any advance payment under this Agreement is subject to 2 C.F.R. § 200.305 and, as applicable, section 216.181(16), Florida Statutes. All requests for advance payments shall be reviewed and considered on a case-by- case basis. All advances are required to be held in an interest-bearing account and shall not exceed fifty percent of the grant award. If an advance payment is requested, an estimated expense table and justification statement shall be included in this Agreement. All advance requests shall be submitted at the time of execution of the original agreement, unless an Environmental Historical Preservation (EHP) review is required. If an EHP is required advance payments shall not be processed until approval from FEMA has been received. Advance requests can only be made by completing Attachment E and shall specify the amount of advance payment needed and provide an explanation of the necessity for and proposed use of these funds. No advance shall be accepted for processing if a reimbursement has been paid prior to the submittal of a request for advanced payment. After the initial advance, if any, payment shall be made on a reimbursement basis as needed. (21) REPAYMENTS a. All refunds or repayments due to the Division under this Agreement are to be made payable to the order of "Division of Emergency Management", and mailed directly to the following address: Division of Emergency Management Cashier 2555 Shumard Oak Boulevard Tallahassee FL 32399-2100 16 79 b. In accordance with section 215.34(2), Florida Statutes, if a check or other draft is returned to the Division for collection, Sub -Recipient shall pay the Division a service fee of $15.00 or 5% of the face amount of the returned check or draft, whichever is greater. (22) MANDATED 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 Sub -Recipient in this Agreement, in any later submission or response to a Division request, or in any submission or response to fulfill the requirements of this Agreement. All of said information, representations, and materials are incorporated by reference. The inaccuracy of the submissions or any material changes shall, at the option of the Division and with thirty (30) days written notice to the Sub -Recipient, cause the termination of this Agreement and the release of the Division from all its obligations to the Sub -Recipient. b. The laws of the State of Florida shall govern this Agreement. The Division and the Sub -Recipient submit to the jurisdiction of the courts of the State of Florida exclusively for any legal action related to this Agreement. Further, the Sub -Recipient hereby waives any and all privileges and rights relating to venue it may have under chapter 47, Florida Statutes, and any and all such venue privileges and rights it may have under any other statute, rule, or case law, including, but not limited to those grounded on convenience. The Sub -Recipient hereby submits to venue in the county chosen by the Division, to wit: Leon County, Florida. c. Any power of approval or disapproval granted to the Division under the terms of this Agreement shall survive the term of this Agreement. d. The Sub -Recipient agrees to comply with the Americans With Disabilities Act (Public Law 101-336, 42 U.S.C. Section 12101 et seg.), which prohibits discrimination by public and private entities on the basis of disability in employment, public accommodations, transportation, State and local government services, and telecommunications. e. Those who have been placed on the convicted vendor list following a conviction for a public entity crime or on the discriminatory vendor list shall not submit a bid on a contract to provide any goods or services to a public entity, shall not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, shall not submit bids on leases of real property to a public entity, shall not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity, and shall not transact business with any public entity in excess of $25,000.00 for a period of thirty-six (36) months from the date of being placed on the convicted vendor list or on the discriminatory vendor list. f. Any Sub -Recipient which is not a local government or state agency, and which receives funds under this Agreement from the Federal Government, certifies, to the best of its knowledge and belief, that it and its principals: Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by a federal department or agency; Have not, within a five (5) year period preceding this proposal been convicted of or had a civil judgment rendered against them for 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; 17 80 iii. 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 (22) f. ii. of this certification; and, iv. Have not within a five (5) year period preceding this Agreement had one or more public transactions (federal, state or local) terminated for cause or default. g. If the Sub -Recipient is unable to certify to any of the statements in this certification, then the Sub - Recipient shall attach an explanation to this Agreement. h. In addition, the Sub -Recipient shall send to the Division (by email or by facsimile transmission) the completed "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion" (Attachment G) for each intended subcontractor which Sub -Recipient plans to fund under this Agreement. The form shall be received by the Division before the Sub -Recipient enters into a contract with any subcontractor. i. The Division reserves the right to unilaterally cancel this Agreement if the Sub -Recipient refuses to allow public access to all documents, papers, letters or other material subject to the provisions of chapter 119, Florida Statutes, which the Sub -Recipient created or received under this Agreement. j. If the Sub -Recipient is allowed to temporarily invest any advances of funds under this Agreement, any interest income shall either be returned to the Division or be applied against the Division's obligation to pay the contract amount. k. The State of Florida shall 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 Division shall consider the employment by any contractor of unauthorized aliens a violation of Section 274A(e) of the INA. Such violation by the Sub -Recipient of the employment provisions contained in Section 274A(e) of the INA shall be grounds for unilateral cancellation of this Agreement by the Division. I. Section 287.05805, Florida Statutes, requires that any state funds provided for the purchase of or improvements to real property are contingent upon the contractor or political subdivision granting to the state a security interest in the property at least to the amount of state funds provided for at least five (5) years from the date of purchase or the completion of the improvements or as further required by law. m. Unless preempted by federal law, the Division may, at its option, terminate the Contract if the Contractor is found to have submitted a false certification as provided under section 287.135(5), F.S., or been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in business operations in Cuba or Syria, or to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel. (23) LOBBYING PROHIBITION a. 2 C.F.R. § 200.450 prohibits reimbursement for costs associated with certain lobbying activities. b. Section 216.347, Florida Statutes, prohibits "any disbursement of grants and aids appropriations pursuant to a contract or grant to any person or organization unless the terms of the grant or contract prohibit the expenditure of funds for the purpose of lobbying the Legislature, the judicial branch, or a state agency." IN 81 c. No funds or other resources received from the Division under this Agreement may be used directly or indirectly to influence legislation or any other official action by the Florida Legislature or any state agency. d. The Sub -Recipient certifies, by its signature to this Agreement, that to the best of his or her knowledge and belief: No federal appropriated funds have been paid or shall be paid, by or on behalf of the Sub - Recipient, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. ii. If any funds other than federal appropriated funds have been paid or shall 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 Sub -Recipient shall complete and submit Standard Form -LLL, "Disclosure of Lobbying Activities." iii. The Sub -Recipient shall require that this certification be included in the award documents for all subawards (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all Sub -Recipients shall certify and disclose. iv. 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. If this subgrant agreement amount is $100,000 or more, the Sub -Recipient, and subcontractors, as applicable, shall sign Attachment M — Certification Regarding Lobbying. (24) COPYRIGHT, PATENT AND TRADEMARK EXCEPT AS PROVIDED BELOW, ANY AND ALL PATENT RIGHTS ACCRUING UNDER OR IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT ARE HEREBY RESERVED TO THE STATE OF FLORIDA; AND, ANY AND ALL COPYRIGHTS ACCRUING UNDER OR IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT ARE HEREBY TRANSFERRED BY THE SUB -RECIPIENT TO THE STATE OF FLORIDA. a. If the Sub -Recipient has a pre-existing patent or copyright, the Sub -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 is developed in the course of or as a result of work or services performed under this Agreement, or in any way connected with it, the Sub -Recipient shall refer the discovery or invention to the Division for a determination whether the State of Florida shall seek patent protection in its name. Any patent rights accruing under or in connection with the performance of this Agreement are reserved to the State of Florida. If any books, manuals, films, or other copyrightable material are produced, the Sub -Recipient shall notify the Division. Any 19 82 copyrights accruing under or in connection with the performance under this Agreement are transferred by the Sub - Recipient to the State of Florida. c. Within thirty (30) days of execution of this Agreement, the Sub -Recipient shall disclose all intellectual properties relating to the performance of this Agreement which he or she knows or should know could give rise to a patent or copyright. The Sub -Recipient shall retain all rights and entitlements to any pre-existing intellectual property which is disclosed. Failure to disclose shall indicate that no such property exists. The Division shall then, under Paragraph (24) b., have the right to all patents and copyrights which accrue during performance of the Agreement. d. If the Sub -Recipient qualifies as a state university under Florida law, then, pursuant to section 1004.23, Florida Statutes, any invention conceived exclusively by the employees of the Sub -Recipient shall become the sole property of the Sub -Recipient. In the case of joint inventions, that is inventions made jointly by one or more employees of both parties hereto, each party shall have an equal, undivided interest in and to such joint inventions. The Division shall retain a perpetual, irrevocable, fully -paid, nonexclusive license, for its use and the use of its contractors of any resulting patented, copyrighted or trademarked work products, developed solely by the Sub -Recipient, under this Agreement, for Florida government purposes. (25) LEGAL AUTHORIZATION The Sub -Recipient certifies that it has the legal authority to receive the funds under this Agreement and that its governing body has authorized the execution and acceptance of this Agreement. The Sub -Recipient also certifies that the undersigned person has the authority to legally execute and bind Sub -Recipient to the terms of this Agreement. (26) EQUAL OPPORTUNITY EMPLOYMENT a. In accordance with 41 C.F.R. § 60-1.4(b), the Sub -Recipient hereby agrees that it shall incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the federal government or borrowed on the credit of the federal government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause: During the performance of this contract, the contractor agrees as follows i. The contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. ii. The contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants shall receive considerations for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. 20 83 iii. The contractor shall not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. iv. The contractor shall send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. V. The contractor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. vi. The contractor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and shall permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. vii. In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. viii. The contractor shall include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions shall be binding upon each subcontractor or vendor. The contractor shall take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency the contractor may request the United States to enter into such litigation to protect the interests of the United States. b. The Sub -Recipient further agrees that it shall be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the 21 84 applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract. c. The Sub -Recipient agrees that it shall assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it shall furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it shall otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. d. The Sub -Recipient further agrees that it shall refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive order and shall carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive order. In addition, the Sub -Recipient agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the Sub -Recipient under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such Sub -Recipient; and refer the case to the Department of Justice for appropriate legal proceedings. (27) COPELAND ANTI -KICKBACK ACT The Sub -Recipient hereby agrees that, unless exempt under federal law, it shall incorporate or cause to be incorporated into any contract for construction work, or modification thereof, the following clause: i. Contractor. The contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this contract. ii. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clause above and such other clauses as the FEMA may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses. iii. Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12. (28) CONTRACT WORK HOURS AND SAFETY STANDARDS If the Sub -Recipient, with the funds authorized by this Agreement, enters into a contract that exceeds $100,000 and involves the employment of mechanics or laborers, then any such contract shall include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of forty (40) hours. Work in excess of the standard work week is permissible provided that 22 85 the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of forty (40) hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation. (29) CLEAN AIR ACT AND THE FEDERAL WATER POLLUTION CONTROL ACT If the Sub -Recipient, with the funds authorized by this Agreement, enters into a contract that exceeds $150,000, then any such contract shall include the following provision: Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387) and shall report violations to FEMA and the Regional Office of the Environmental Protection Agency (EPA). (30) SUSPENSION AND DEBARMENT If the Sub -Recipient, with the funds authorized by this Agreement, enters into a contract, then any such contract shall include the following provisions: i. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the contractor is required to verify that none of the contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). ii. The contractor shall comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and shall include a requirement to comply with these regulations in any lower tier covered transaction it enters into. iii. This certification is a material representation of fact relied upon by the Division. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the Division, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. iv. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. (31) BYRD ANTI -LOBBYING AMENDMENT If the Sub -Recipient, with the funds authorized by this Agreement, enters into a contract, then any such contract shall include the following clause: Byrd Anti -Lobbying Amendment, 31 U.S.C. § 1352 (as amended). Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it shalll not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the recipient. 23 86 If the Sub -Recipient enters into a contract with a subcontractor for an award of $100,000 or more, the subcontractor shall sign Exhibit 3 — Certification Regarding Lobbying. (32) CONTRACTING WITH SMALL AND MINORITY BUSINESSES, WOMEN'S BUSINESS ENTERPRISES, AND LABOR SURPLUS AREA FIRMS a. If the Sub -Recipient, with the funds authorized by this Agreement, seeks to procure goods or services, then, in accordance with 2 C.F.R. § 200.321, the Sub -Recipient shall take the following affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used whenever possible: solicitation lists; Placing qualified small and minority businesses and women's business enterprises on Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; iii. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises; iv. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and vi. Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs i. through v. of this subparagraph. b. The requirement outlined in subparagraph a. above, sometimes referred to as "socioeconomic contracting," does not impose an obligation to set aside either the solicitation or award of a contract to these types of firms. Rather, the requirement only imposes an obligation to carry out and document the six affirmative steps identified above. c. The "socioeconomic contracting" requirement outlines the affirmative steps that the Sub -Recipient shallt take; the requirements do not preclude the Sub -Recipient from undertaking additional steps to involve small and minority businesses and women's business enterprises. d. The requirement to divide total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises, does not authorize the Sub -Recipient to break a single project down into smaller components in order to circumvent the micro - purchase or small purchase thresholds so as to utilize streamlined acquisition procedures (e.g. "project splitting"). 24 (33) ASSURANCES The Sub -Recipient shall comply with any Statement of Assurances incorporated as Attachment H. 87 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. SUB -RECIPIENT: Indian River County By: Name and Title: Joseph H. Earman, Chairman Date: FID# 59-6000674 If signing electronically: By providing this electronic signature, 1 am attesting that I understand that electronic signatures are legally binding and have the same meaning as handwritten signatures. I am also confirming that internal controls have been maintained, and that policies and procedures were properly followed to ensure the authenticity of the electronic signature. 1 acknowledge that typewritten and/or script fonts are not acceptable as a digital signature. All electronic signatures shall be certified digital signatures and include: the signee's name, time and date stamp. This statement is to certify that 1 confirm that this electronic signature is to be the legally binding equivalent of my handwritten signature and that the data on this form is accurate to the best of my knowledge. STATE OF FLORIDA DIVISION OF EMERGENCY MANAGEMENT By: Name and Title: Kevin Guthrie, Executive Director Date: 25 RE EXHIBIT— 1 Federal Programs and Resources Awarded THE FOLLOWING FEDERAL RESOURCES ARE AWARDED TO THE SUB -RECIPIENT UNDER THIS AGREEMENT: Federal Program: EMERGENCY MANAGEMENT PERFORMANCE GRANT (EMPG) PROGRAM Federal Agency: U.S. Department of Homeland Security, Federal Emergency Management Catalog of Federal Domestic Assistance title and number: 97.042 Award amount: $80,833.00 THE FOLLOWING COMPLIANCE REQUIREMENTS APPLY TO THE FEDERAL RESOURCES AWARDED UNDER THIS AGREEMENT: Federal Program: Emergency Management Performance Grant (EMPG) Program List applicable compliance requirements as follows: Sub -Recipient is to use funding to perform eligible activities as identified FY 2023 Department of Homeland Security Notice of Funding Opportunity. 2. Sub -Recipient is subject to all administrative and financial requirements as set forth in this Agreement or shall not be in compliance with the terms of the Agreement. 3. Sub -Recipient shall comply with specific laws, rules, or regulations that pertain to how the awarded resources shall be used or how eligibility determinations are to be made. NOTE: 2 C.F.R. Part 200, 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 Sub -Recipient. Sub -Recipient: Indian River County By: Joseph H. Earman, Chairman Printed Name and Title Date: If signing electronically: By providing this electronic signature, I am attesting that 1 understand that electronic signatures are legally binding and have the same meaning as handwritten signatures. I am also confirming that internal controls have been maintained, and that policies and procedures were properly followed to ensure the authenticity of the electronic signature. 1 acknowledge that typewritten andlor script fonts are not acceptable as a digital signature. All electronic signatures shall be certified digital signatures and include: the signee's name, time and date stamp. This statement is to certify that 1 confirm that this electronic signature is to be the legally binding equivalent of my handwritten signature and that the data on this form is accurate to the best of my knowledge. 26 89 EXHIBIT — 2 Certification Regarding Telecommunications and Video Restrictions Effective August 13, 2020, DHS/FEMA Sub -Recipients, as well as their contractors and subcontractors, shall not use grant funds under the Emergency Management Performance Grant (EMPG) Program covered by this Agreement and provided in FY 2023 or previous years to: 1. Procure or obtain, extend or renew a contract to procure or obtain, or enter into a contract to procure or obtain any equipment, system, or service that uses "covered telecommunications equipment or services" as a substantial or essential component of any system, or as critical technology of any system; or 2. Enter into, extend or renew contracts with entities that use or provide, as part of its performance of this agreement or any other contractual instrument, any equipment, system, or service that uses "covered telecommunications equipment or services" as a substantial or essential component of any system, or as critical technology as part of any system. This prohibition regarding certain telecommunications and video surveillance services or equipment is mandated by section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (FY 2019 NDAA), Pub. L. No. 115-232 (2018), and 2 C.F.R. § 200.216, 200.327, 200.471, AND Appendix II to 2 C.F.R. Part 200. Sub -Recipients may use DHS/FEMA grant funding to procure replacement equipment and services impacted by this prohibition, provided the costs are otherwise consistent with the requirements of the FY 2023 Preparedness Grants Manual, applicable appendix to the Manual, and applicable NOFO. DHS/FEMA shall publish additional guidance in a subsequent Information Bulletin or similar notice. Per section 889(f)(2)-(3) of the FY 2019 NDAA, covered telecommunications equipment or services means: Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation, (or any subsidiary or affiliate of such entities); For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); Telecommunications or video surveillance services provided by such entities or using such equipment; or Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the People's Republic of China. In the event the Sub -Recipient identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance or at any time or by any other source, the Sub -Recipient shall report the information to the Division: 27 1. Within one (1) business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended. 2. Within ten (10) business days of submitting the aforementioned information: Any further available information about mitigation actions undertaken or recommended. In addition, the Sub -Recipient shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that shall be incorporated to prevent future use or submission of covered telecommunications equipment or services. 90 Sub -Recipient: Indian River County By: Date: Joseph H. Earman, Chairman Printed Name and Title If signing electronically: By providing this electronic signature, 1 am attesting that I understand that electronic signatures are legally binding and have the same meaning as handwritten signatures. 1 am also confirming that internal controls have been maintained, and that policies and procedures were properly followed to ensure the authenticity of the electronic signature. l acknowledge that typewritten andlor script fonts are not acceptable as a digital signature. All electronic signatures shall be certified digital signatures and include: the signee's name, time and date stamp. This statement is to certify that l confirm that this electronic signature is to be the legally binding equivalent of my handwritten signature and that the data on this form is accurate to the best of my knowledge. 91 EX HIBIT — 3 CERTIFICATION REGARDING LOBBYING Check the appropriate box: ❑ This Certification Regarding Lobbying is required because the Contract, Grant, Loan, or Cooperative Agreement shall exceed $100,000 pursuant to 2 C.F.R. Part 200, Appendix II(I); 31 U.S.C. § 1352; and 44 C.F.R. Part 18. ❑ This Certification is not required because the Contract, Grant, Loan, or Cooperative Agreement shall be equal to or less than $100,000. APPENDIX A, 44 C.F.R. PART 18 — CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: 1. No federal appropriated funds have been paid or shall be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. 2. If any funds other than federal appropriated funds have been paid or shall 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 Sub -Recipients 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. The Sub -Recipient or subcontractor, , certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Ch. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any. Signature of Sub-Recipient/subcontractor's Authorized Official Name and Title of Sub-Recipient/subcontractor's Authorized Official Date ATTACHMENT A Program Budget 29 92 Below is a general budget which outlines eligible categories and their allocation under this award. The Sub -Recipient is to utilize the "Program Budget" as a guide for completing the "Budget Detail Worksheet" below. The Equipment category shall require Authorized Equipment List (AEL) reference number. The Authorized Equipment List (AEL) is a list of approved equipment types allowed under FEMA's preparedness grant programs. The intended audience of this tool is emergency managers, first responders, and other homeland security professionals. This equipment is limited to select items on the Authorized Equipment List (AEL), as further provided in Attachment B, Section II. Subsection C: A detailed list of the allowable prevention and protection categories and equipment standards for the Emergency Management Performance Grant (EMPG) Program are listed at the following website: http://www.fema.gov/authorized- equipment-list. The transfer of funds between the categories listed in the "Program Budget and Scope of Work" is permitted. However, the transfer of funds between Issues is strictly prohibited. 30 Grant FY2023 Emergency Management Performance Grant (EMPG) Program Recipient Agency Indian River Coun Category(s) Project Title Amount Allocated Planning Expenditures THIRA Update $27,487 Organizational Expenditures Software Services (Annual Recurring) WebEOC & Mobile App $37,346 Exercise Expenditures Training Expenditures Travel to EM Conferences $16,000 Equipment Expenditures Management and Administration (up to 5%) Total Award $ 80,833.00 93 BUDGET DETAIL WORKSHEET The Sub -Recipient is required to provide a completed budget detail worksheet, to the Division, which accounts for the total award as described in the "Proposed Program Budget". If any changes need to be made to the "Budget Detail Worksheet", after the execution of this agreement, contact the Grant Manager listed in this agreement via email or letter. 31 Provide the "AEL item number" and "Title" in the necessary columns below. Allowable Planning Costs Quantity Unit Cost Total Cost Project Development and enhancement of security plans and protocols 1 $27,487 $27,487 Development or further strengthening of security assessments Emergency contingency plans Evacuation/Shelter-in-place plans Coordination and information sharing with fusion centers Other project planning activities with prior approval from DHS/FEMA Total Planning Expenditures $ 27,487 Allowable Organizational Costs: Eligible Organizational expenses are for Salaries and Fringe Benefits, Utilities (electric, water and sewage), Supplies/Materials, Service/Maintenance agreements, Memberships, Publications, Postage, and Storage. Quantity Unit Cost Total Cost Project Annual WebEOC Recurring Cost 1 $30,346 $30,346 QuickSeries (Mobile Application Recurring Cost) 1 $7,000 $7,000 Total Organizational Expenditures $ 37,346.00 Allowable Exercise Cos Quantity Unit Cost Total Cost Project Exercise Planning Workshop - Grant funds may be used to conduct exercises to include costs related to planning, meeting space and other meeting costs, facilitation costs, materials and supplies, and documentation. Total Exercise Expenditures $ Allowable Training Costs Quantity Unit Cost Total Cost Project " 94 32 Allowable training -related costs includes Salaries and Fringe Benefits, Develop, Deliver Training, Workshops and Conferences, Certification/Recertification of Instructors, supplies, and Overtime and Backfill . Travel to Emergency Mgmt related Training/Classes/Conferences 1 $16,000 $16,000 Total Training Expenditures $ 16,000 Eligible EMPG Equipment Categories: Include only those selected items listed under Section II. C of this grant agreement. Allowable Equipment Costs (Purchasing equipment from either of the two categories below). The two allowable prevention and protection categories and equipment standards for the EMPG are listed at the following website http://www.fema.gov/authorized-equipment-list. Quantity Unit Cost Total Cost Pro ect 1 Physical Security Enhancement Equipment (14 - Inspection and Screening Systems (15 -XX) Notification and Warning Systems Radios and Public Address Systems Encryption Software and Remote Authentication Generators Installations and Service Contracts Total Equipment Expenditures $ 0.00 Management and Administration (shall not exceed 5% of the total award amount) Quantity Unit Cost Total Cost Project 95 Hiring of full-time or part-time staff or co ntractors/con s u Itants: • To assist with the management of the EMPG • To assist with design for, requirements and implementation of the EMPG *Time & Effort documentation shall be required for hired staff. *Contract between the organization and contractor/consultant shall be required for reimbursement. Meeting related expenses directly related to management and administration of the EMPG Total M&A Expenditures $ 0.00 TOTAL EMPG AWARD EXPENDITURES $80,833.00 [Remainder of page intentionally left blank] 33 96 FY 2023 — 2024 EMPG AGREEMENT ATTACHMENT B — SCOPE OF WORK I. GENERAL POLICY The EMPG Program contributes to the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities. Core capabilities are essential for the execution of critical tasks for each of the five mission areas outlined in the National Preparedness Goal. Based on Florida's FY2022 Threat and Hazards and Risk Assessment (THIRA), Stakeholders Preparedness Review (SPR) and other relevant sources, the FEMA Administrator and Executive Director identified the below core capabilities as priorities to address gaps across the State: • Planning • Public Information and Warning • Operational Coordination • Economic Recovery • Cybersecurity The EMPG Program's allowable costs support efforts to build and sustain core capabilities across the Prevention, Protection, Mitigation, Response, and Recovery mission areas described in the Goal Grant funds under this program may be charged to one of the below listed activities: • Planning • Organization • Equipment • Training • Exercise • Management and Administration H. TASK(S) AND DELIVERABLE(S): The Subrecipient must successfully complete the following tasks and deliverables throughout the period of performance. TASK 1: GRANT REQUIREMENTS A. QUARTERLY MATCH The FY 2023 EMPG Program has a match requirement. Federal funds provided under the EMPG agreement shall be matched by the Subrecipient dollar -for -dollar totaling the award amount. The subrecipient contribution can be cash (hard match) or third -party in-kind (soft match). DHS/FEMA administers cost -matching requirements in accordance with 2 C.F.R. § 200.306. Emergency Management and Preparedness Assistance (EMPA) grant funds may be used by the Sub -Recipient as match for EMPG funding. 34 DELIVERABLES • Provide Quarterly Match to identify the non-federal match amount. • If using EMPA as match, no additional supporting documentation is required. • Supporting documentation is required if the federal obligation exceeds the EMPA award amount or you are using other non -Federal funds (such as local general revenue) to satisfy the match requirement. 97 Reporting Requirements. Quarter 1 Quarter 2 Quarter 3 Quarter 4 Deliverables Due Deliverables Due Deliverables Due Deliverables Due Supporting Documentation: For non-EMPA funds used as match, the following documents are required to satisfy the deliverable: invoices, receipts, paystubs, earning statements, credit card or bank statements for proof of payment at least equal to the amount of reimbursement requested for each quarter. TASK 2: IMPLEMENTATION OF THE NATIONAL PREPAREDNESS SYSTEM A. NATIONAL INCIDENT MANAGEMENT SYSTEM (NIMS) IMPLEMENTATION EMPG Program Subrecipients are required to implement NIMS. NIMS provides a common approach to state and local response that enables responders at all levels to work together more effectively to manage domestic incidents through a core set of guidelines, standards, and protocols for command, control and communications in emergency situations. All Subrecipients must certify that they have achieved or are working towards achieving NIMS implementation objectives. All Subrecipients must complete and submit the NIMS Data Collection Worksheet Local annually. To demonstrate successful completion of task 2A for Quarter 1, the Sub -Recipient must submit the following item in DEMES: DELIVERABLES • The Sub -Recipient shall complete the annual NIMS Data Collection Worksheet _Local, provided by the Preparedness Bureau during the month of September and uploaded into DEMES not later than December 1, 2023. Reporting Requirements: Quarter 1 Quarter 2 Quarter 3 Quarter 4 Deliverables Due N/A N/A N/A Supporting Documentation: The NIMS Data Collection Worksheet Local. B. OPERATIONAL COORDINATION The EMPG grant program supports the building or sustainment of core capabilities across the five mission areas that are necessary to prepare for incidents that pose the greatest risk to the State of Florida. Effective operational coordination results from the establishment and maintenance of a unified and coordinated operational structure and process that appropriately integrates all critical stakeholders and supports the execution of core capabilities. Subrecipients must engage with whole community stakeholders, on a quarterly basis: either bYparticipating in regional meetings of existing multi -agency organizations (i.e., Regional Domestic Security Task Forces, Local Emergency Planning Committees, Regional Health Care Coalitions, Local Voluntary/Community Organizations Active in Disaster) or b,, hag/conducting meetings with whole community stakeholders. To demonstrate successful completion of task 2B for Quarters 1-4, the Sub -Recipient must submit the following items in DEMES: 35 d-11 DELIVERABLES • Provide proof of participation by the Subrecipient in quarterly meetings with whole community stakeholders (i.e., fire, law enforcement, health and health care coalitions, public works, public and private sector, and Volunteer Organizations). Reporting Requirements Quarter 1 Quarter 2 Quarter 3 Quarter 4 Deliverables Due Deliverables Due Deliverables Due Deliverables Due Supporting Documentation: Provide proof of participation in quarterly meetings with whole community stakeholders to include sign -in sheets and agendas, if applicable. Meetings hosted by subrecipient must include meeting minutes. C. PUBLIC INFORMATION AND WARNING The Integrated Public Alert & Warning System (IPAWS) is FEMA's national system for local alerting that provides authenticated emergency and life-saving information to the public through mobile phones using Wireless Emergency Alerts, to radio and television via the Emergency Alert System, and on the National Oceanic and Atmospheric Administration's Weather Radio. The Subrecipient must provide proof of current executed IPAWS Memorandum of Agreement (MOA), applicable only if IPAWS have expired. To demonstrate successful completion of task 2C for Quarter 4, the Subrecipient must submit the following items in DEMES: DELIVERABLES • The Subrecipient shall upload their updated FEMA IPAWS County executed MOA signed form no later than August 30, 2024. Reporting Requirements Quarter 1 Quarter 2 Quarter 3 Quarter 4 N/A N/A NA Deliverables Due Supporting Documentation: Submission of executed IPAWS County MOA for the county.. ---------------------- TASK 3: TRAINING AND EXERCISE A. INTEGRATED PREPAREDNESS PLAN (IPP) Subrecipients are required to engage senior leaders and other whole community stakeholders to identify preparedness priorities specific to training and exercise needs, which will guide development of the county's multi-year IPP. The IPP should identify a combination of planning, training and exercise activities that address preparedness priorities and capability gaps based on planning efforts, hazard and risk assessments, and exercise/incident after -action reviews (AARs). 36 11 The State of Florida uses Regional Integrated Preparedness Plan Workshop (IPPW) process to synchronize local IPP's into a statewide IPP. Subrecipients shall have a representative participate in their Regional IPPW, and EMPG funded personnel are encouraged to attend. To demonstrate successful completion of task 3A for Quarter 2, the Subrecipient must submit the following items in DEMES. DELIVERABLES • Submit the County 2025-2027 IPP Data Sheets by January 12, 2024, in DEMES • Proof of participation by a representative of the Subrecipient in the appropriate Regional IPP Workshop (IPPW) to be provided by the Division's Training and Exercise Unit. Reporting Requirements: Quarter 1 Quarter 2 Quarter 3 Quarter 4 NA Deliverables Due NA NA Supporting Documentation: Submission of IPP Data Sheets Only in DEMES not later than January 12, 2024. Proof of Participation by Subrecipient at the appropriate Regional IPP Workshop (IPPW). B. TRAINING All EMPG funded personnel must complete either the NIMS Independent Study courses and the Professional Development Series, or the FEMA National Emergency Management Basic Academy delivered either by EMI or at a sponsored state, local or other designated location. • NIMS Training, Independent Study (IS) -100 (any version), IS -200 (any version), IS -700 (any version), and IS - 800 (any version)4, and, and • Professional Development Series (PDS) or the Emergency Management Professionals Program (EMPP) Basic Academy courses listed in the chart below. To demonstrate successful completion of task 3B for Quarters 1-4, the Subrecipient must submit the following items to DEMES: 37 100 IS -120.a: An Introduction to Exercises IS -100 (any version): Introduction to the Incident Command System IS -230A Fundamentals of IS -700 (any version): National Incident Emergency Management Management System (NIMS)-An IS -235.b: Emergency Planning IS -800 (any version): National Res onse Framework, An IS -240.b: Leadership and Influence IS -230A Fundamentals of Emergency Management IS -241.b: Decision Making E/L101: Foundations of and Problem Solving Emergency Management IS -242.b: Effective Communication E/L102: Science of Disasters IS -244.b: Developing and E/L 103: Planning Emergency Operations Managing Volunteers IS -244.b: Developing and E/L104: Exercise Design Volunteers -Managing IS -244.b: Developing and E/L 105: Public Information & Warning Managing Volunteers To demonstrate successful completion of task 3B for Quarters 1-4, the Subrecipient must submit the following items to DEMES: 37 100 DELIVERABLES • Staffing Detail for all EMPG funded personnel. • Training verifications for EMPG funded personnel will be provided by the FDEM Training and Exercise (T&E) Unit to the FDEM Grant Management Staff. Reporting Requirements Quarter 1 Quarter 2 Quarter 3 Quarter 4 Deliverables Due Deliverables Due Deliverables Due Deliverables Due NOTE: Additional course completion documentation is required only if new personnel are listed on the Staffing Detail. C. VALIDATING CAPABILITIES THROUGH EXERCISE Exercises play a vital role in preparedness by testing capabilities, familiarizing emergency management personnel with role and responsibilities, fostering meaningful interaction and communicating across organizations. Exercises bring together and strengthen the whole community in its efforts to prevent, protect against, mitigate, respond to, and recover from all hazards. To demonstrate successful completion of task 3 C for Quarter 2-4. All EMPG funded personnel must participate in a minimum of three (3) exercises during the agreement period. Submit the following item in DEMES: DELIVERABLES • Subrecipient must provide sign -in sheets for exercise in which EMPG funded personnel participated. • If a local jurisdiction has experienced a major disaster and they would like to request exemptions for a scheduled exercise, the recipient should send this request to its assigned Grants Manager utilizing the quarterly report. Exemptions will be reviewed/approved by the State on a case-by-case basis. Reporting Requirements Quarter 1 Quarter 2 Quarter 3 Quarter 4 Deliverables Due Deliverables Due Deliverables Due Deliverable (Not required if Accepted completed in Q 1-3) Supporting Documentation: Submission of sign -in sheets for exercises in which EMPG funded personnel participated. ATTACHMENT C ALLOWABLE COST AND ELIGIBLE ACTIVITY cU2 101 Sub -Recipients shall comply with all the requirements in 2 C.F.R. Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards). Funding is provided to perform eligible activities as identified in the FY 2023 Emergency Management Performance Grant (EMPG) Program Notice of Funding Opportunity (NOFO), consistent with the Department of Homeland Security (DHS) State Strategy. Eligible activities are outlined in the Allowable Cost and Eligible Activity for each category below: Categories and Eligible Activities FY 2023 EMPG allowable costs are divided into the following categories: Planning, Organization, Equipment, Training, Exercise, and Management and Administration in this Agreement. Each category's allowable costs have been listed in the "Budget Detail Worksheet" above. A. Allowable Planning Related Costs Funding may be used for security or emergency planning expenses and the materials required to conduct planning activities. Planning shall be related to the protection of the facility and the people within the facility and should include with access and functional needs as well as those with limited English proficiency. Examples of planning activities allowable under this program include: • Development and enhancement of security plans and protocols; • Development or further strengthening of security assessments; • Emergency contingency plans; • Evacuation/Shelter-in-place plans; • Coordination and information sharing with fusion centers, and • Other project planning activities with prior approval from DHS/FEMA. Planning Costs Supporting Documentation: • Copies of completed plan, contracts, Memorandum of Understanding or agreements with consultants or sub -contractors providing services and documenting hours worked and proof employee was paid (paystubs, earning statements, payroll expenditure reports). • Copies of invoices, receipts and cancelled checks, or credit card statements, or bank statements for proof of payment. B. Allowable Organization Related Costs 39 EMPG Program funds may be used for all -hazards emergency management operations, staffing, and other day- to-day activities in support of emergency management. Personnel costs, including salary, overtime and backfill, compensatory time off, and associated fringe benefits are allowable costs with EMPG Program funds. These costs must comply with 2 C.F.R. Part 200, Subpart E — Cost Principles. Eligible "Organization Cost" items include, but are not limited to: • Salaries and Fringe Benefits • Copies of certified timesheets with employee and supervisor signature documenting hours worked or Division Form 6 - Time and Effort and proof employee was paid (paystubs, earning statements, and payroll expenditure reports). • Position descriptions for funded EMPG personnel and any position being used as match; • Utilities (electric, water and sewage) • Service/Maintenance agreements (provide vendor debarment and service agreement for contractual services) • Office Supplies/Materials • IT Software Upgrades • Memberships • Publications • Postage • Storage 102 • Other Personnel/Contractual Services • Reimbursement for services by a person(s) who is not a regular or full-time employee filling established positions. This includes but is not limited to temporary employees, student or graduate assistants, fellowships, part time academic employment, board members, consultants, and other services. • Consultant Services require a pre -approved Contract or purchase order by the Division. Copies of additional quotes should also be supplied when requesting pre -approval. These requests should be sent to the grant manager for the Division for review. • Maintenance and Enhancement • Major repairs to the County Emergency Operations Center (Need prior EHP approval) • Central Heat/Air (Need prior EHP approval) • Out buildings for storage of Emergency Management Equipment (Need prior EHP approval) • Security Improvements (i.e. Cameras and equipment to operate) • Generators and Installation (Need prior EHP approval) Organization Costs Supporting Documentation If the recipient seeks reimbursement for operational activities, then the following shall be submitted: • For salaries, provide copies of certified timesheets with employee and supervisor signature documenting hours worked or Division Form 6 - Time and Effort and proof employee was paid (paystubs, earning statements, payroll expenditure reports). • Expense items need to have copies of invoices, receipts and cancelled checks, or credit card statements, or bank statements for proof of payment. All documentation for reimbursement amounts must be clearly visible and defined (i.e., highlighted, underlined, circled on the required supporting documentation). C. Allowable Equipment Related Costs Allowable equipment categories for the EMPG Program are listed on the web -based version of the Authorized Equipment List (AEL) at https://www.fema.gov/authorized-equipment-list. Unless otherwise stated, equipment must meet all mandatory regulatory and/or FEMA -adopted standards to be eligible for purchase using these funds. In addition, agencies will be responsible for obtaining and maintaining all necessary certifications and licenses for the requested equipment. Allowable equipment includes equipment from the following AEL categories: • Personal Protective Equipment (PPE) (Category 1) • Information Technology (Category 4) • Cybersecurity Enhancement Equipment (Category 5) • Interoperable Communications Equipment (Category 6) • Detection Equipment (Category 7) • Power Equipment (Category 10) • Chemical, Biological, Radiological, Nuclear, and Explosive (CBRNE) Reference Materials (Category 11) • CBRNE Incident Response Vehicles (Category 12) • Physical Security Enhancement Equipment (Category 14) • CBRNE Logistical Support Equipment (Category 19) • Other Authorized Equipment (Category 21) In addition to the above, general-purpose vehicles can be procured in order to carry out the responsibilities of the EMPG Program. If Sub -Recipients have questions concerning the eligibility of equipment not specifically addressed in the AEL, they should contact their Grant Manager for clarification. Sub -Recipients should analyze the cost benefits of purchasing versus leasing equipment, especially high cost items and those subject to rapid technical advances. Large equipment purchases must be identified and explained. For more information regarding property management standards for equipment, please reference 2 C.F.R. Part 200, including 2 C.F.R. §§ 200.310, 200.313, and 200.316. .m 103 Requirements for Small Unmanned Aircraft System All requests to purchase Small Unmanned Aircraft System (SUAS) must comply with Information Bulletin (IB) 426 and must include the policies and procedures in place to safeguard individuals' privacy, civil rights, and civil liberties in the jurisdiction that will purchase, take title to, or otherwise use the SUAS equipment. Funding for Critical Emergency Supplies Critical emergency supplies—such as shelf stable products, water, and basic medical supplies—are an allowable expense under EMPG. DHS/FEMA must approve a state's five-year viable inventory management plan prior to allocating grant funds for stockpiling purposes. The five-year plan should include a distribution strategy and related sustainment costs if the grant expenditure is over $100,000. Equipment Acquisition Costs Supporting Documentation • Provide copies of invoices, receipts and cancelled checks, credit card statements, bank statements for proof of payment. • Provide the Authorized Equipment List (AEL) # for each equipment purchase. Unauthorized Equipment - Related Costs • Unallowable Equipment: Grant funds must comply with IB 426 and may not be used for the purchase of the following equipment: firearms, ammunition, grenade launchers, bayonets, or weaponized aircraft, vessels, or vehicles of any kind with weapons installed. • Expenditures for weapons systems and ammunition. • Costs associated with hiring, equipping, training, etc. sworn public safety officers whose primary job responsibilities include fulfilling traditional public safety duties such as law enforcement, firefighting, emergency medical services, or other first responder duties. • Costs that supplant traditional public safety positions and responsibilities. • Activities and projects unrelated to the completion and implementation of the EMPG Program. • Clothing used for everyday wear by emergency management employees or other personnel. As defined in section 200.310 Insurance Coverage: The non-federal entity must, at a minimum, provide the equivalent insurance coverage for real property and equipment acquired or improved with Federal funds as provided to property owned by the non-federal entity. Federally -owned property need not be insured unless required by the terms and conditions of the Federal award. D. Allowable Training Related Costs EMPG Training funds may be used for a range of emergency management -related training activities to enhance the capabilities of local emergency management personnel through the establishment, support, conduct, and attendance of training. Training activities should align to a current IPP developed through an annual Integrated Preparedness Program Workshop (IPPW). Training should foster the development of a community -oriented approach to emergency management that emphasizes engagement at the community level, strengthens best practices, and provides a path toward building sustainable resilience. 41 All EMPG-funded personnel are expected to be trained emergency managers. In addition to training activities aligned to and addressed in the IPP, all EMPG -funded personnel (including full- and part-time state, local, tribal, and territorial (SLTT) recipients and Sub -Recipients) shall complete the following training requirements and record proof of completion: (1) NIMS Training, Independent Study (IS) -100 (any version), IS -200 (any version), IS -700 (any version), and IS - 800 (any version) AND; (2) Professional Development Series (PDS) OR the Emergency Management Professionals Program (EMPP) Basic Academy listed in the chart below. Professional Development Series or Basic Academy 104 42 PDS Professional Development Series IS -120.a An Introduction to Exercises IS -230.d Fundamentals of Emergency Management IS -235.b Emergency Planning IS -240.b Leadership and Influence IS -241.b Decision Making and Problem Solving IS -242.b Effective Communication IS -244.b Developing and Managing Volunteers Basic Academy Basic Academy Pre -requisites and Courses IS -100 (any version) Introduction to the Incident Command System IS -700 (any version) National Incident Management System (NIMS)-An Introduction IS -800 (any version) National Response OR Framework, An Introduction IS -230.d Fundamentals of Emergency Management E/L101 Foundations of Emergency E/L102 Science of Disasters E/L103 Planning Emergency Operations L-146 HEEP E/L105 Public Information & Warning Additional types of training or training related activities include, but are not limited to, the following: • Developing/enhancing systems to monitor training programs • Conducting all hazards emergency management training • Attending Emergency Management Institute (EMI) training or delivering EMI train -the -trainer courses • Attending other FEMA -approved emergency management training • State -approved, locally sponsored CERT training • Mass evacuation training at local, state, and tribal levels For training, the number of participants must be a minimum of 15 in order to justify the cost of holding a course. For questions regarding adequate number of participants, please contact the Division State Training Officer for course specific guidance. Unless the recipient receives advance written approval from the State Training Officer for the number of participants, then the Division must reduce the amount authorized for reimbursement on a pro - rata basis for any training with less than 15 participants. When conducting an training that shall include meals for the attendees, the recipient shall submit a request for approval to the Division no later than 25 days prior to the event to allow for both the Division and the Department of Financial Services to review. The request for meals must be submitted on letterhead and must include the date of exercise, agenda, number of attendees, and costs of meals. Allowable training -related costs include the following: Develop, Deliver, and Evaluate Training. This includes costs related to administering the training: planning, scheduling, facilities, materials and supplies, reproduction of materials, and equipment. Training should provide the opportunity to demonstrate and validate skills learned, as well as to identify any gaps in these skills. Any training or training gaps, including those for children and individuals with disabilities or access and functional needs, should be identified in the Integrated Preparedness Program (IPP) and addressed in the training cycle. States are encouraged to use existing training rather than developing new courses. When developing new courses states are encouraged to apply the Analyze, Design, Develop, Implement and Evaluate (ADDIE) model for instruction design. Overtime and Backfill. The entire amount of overtime costs, including payments related to backfilling personnel, which are the direct result of attendance at FEMA and/or approved training courses and programs are allowable. These costs are allowed only to the extent the payment for such services is in accordance with the policies of the state or unit(s) of local government and has the approval of the state 105 43 or FEMA, whichever is applicable. In no case is dual compensation allowable. That is, an employee of a unit of government may not receive compensation from their unit or agency of government AND from an award for a single period of time (e.g., 1:00 p.m. to 5:00 p.m.), even though such work may benefit both activities. Travel. Travel costs (e.g., airfare, mileage, per diem, and hotel) are allowable as expenses by employees who are on travel status for official business related to approved training. Hiring of Full or Part -Time Staff or Contractors/Consultants. Full or part-time staff or contractors/consultants may be hired to support direct training -related activities. Payment of salaries and fringe benefits must be in accordance with the policies of the state or unit(s) of local government and have the approval of the state or FEMA, whichever is applicable. Certification/Recertification of Instructors. Costs associated with the certification and re- certification of instructors are allowed. States are encouraged to follow the FEMA Instructor Quality Assurance Program to ensure a minimum level of competency and corresponding levels of evaluation of student learning. This is particularly important for those courses which involve training of trainers. Conferences The Division recognizes the important role that conferences can play in the professional development of emergency managers. 2 C.F.R. §200.432 defines the term conference as "a meeting, retreat, seminar, symposium, workshop or event whose primary purpose is the dissemination of technical information beyond the non -Federal entity and is necessary and reasonable for successful performance under the Federal award." Rule 691-42.002(3), Florida Administrative Code, defines the term conference as: The coming together of persons with a common interest or interests for the purpose of deliberation, interchange of views, or for the removal of differences or disputes and for discussion of their common problems and interests. The term also includes similar meetings such as seminars and workshops which are large formal group meetings that are programmed and supervised to accomplish intensive research, study, discussion, and work in some specific field or on a governmental problem or problems. A conference does not mean the coming together of agency or interagency personnel. For travel to a conference or convention to qualify for reimbursement, the cost must be reasonable and attendance at the conference must be necessary for the successful completion of a task required by this Agreement. Provided the cost qualifies as reasonable and necessary for the successful completion of a task required by this Agreement, travel to a conference that complies with the requirements of Rule 691-42.004, Florida Administrative Code, satisfies the minimum level of service for conference travel under this Agreement. In pertinent part, Rule 691-42.004(1), Florida Administrative Code, states "No public funds shall be expended for attendance at conferences or conventions unless: • The main purpose of the conference or convention is in connection with the official business of the state and directly related to the performance of the statutory duties and responsibilities of the agency participating; • The activity provides a direct educational or other benefit supporting the work and public purpose of the person attending; • The duties and responsibilities of the traveler attending such meetings are compatible with the objectives of the conference or convention; and • The request for payment of travel expenses is otherwise in compliance with these rules. Provided the cost qualifies as reasonable and necessary for the successful completion of a task required by this Agreement, and provided any related travel complies with the requirements of Rule 691-42.004, Florida Administrative Code, conferences may qualify for reimbursement under this Agreement: 106 Requests for reimbursement for payment of the registration fee or for a conference or convention must include: • A statement explaining how the expense directly relates to the Recipient's successful performance of a task outlined in this Agreement; • A copy of those pages of the agenda that itemizes the registration fee; • A copy of local travel policy; and, • A copy of the travel voucher or a statement that no travel costs were incurred, if applicable. When a meal is included in a registration fee, the meal allowance must be deducted from the reimbursement claim, even if the traveler decides for personal reasons not to eat the meal. See section 112.061(6)(c), Florida Statutes ("No one, whether traveling out of or in state, shall be reimbursed for any meal or lodging included in a convention or conference registration fee paid by the state"). A continental breakfast is considered a meal and must be deducted if included in a registration fee for a convention or conference. However, in the case where a meal is provided by a hotel or airline, the traveler shall be allowed to claim the meal allowance provided by law. Class A, Class B, and Class C Travel: • Class A travel is continuous travel of 24 hours or more away from official headquarters. The travel day for Class A is based on a calendar day (midnight to midnight). • Class B travel is continuous travel of less than 24 hours which involves overnight absence away from official headquarters. The travel day for Class B travel begins at the same time as the travel period. • Class C travel is short or day trips in which the traveler is not away from his/her official headquarters overnight. Class C allowances are currently not authorized for reimbursement. Meal Allowance and Per Diem: Section 112.061(6)(b), Florida Statutes, establishes the meal allowance for each meal during a travel period as follows: $6 for breakfast (when travel begins before 6 a.m. and extends beyond 8 a.m.); $11 for lunch (when travel begins before 12 noon and extends beyond 2 p.m.); $19 for dinner (When travel begins before 6 p.m. and extends beyond 8 p.m. or when travel occurs during nighttime hours due to special assignment.). Section 112.061(a), Florida Statutes, establishes the per diem amounts. All travelers are allowed: The authorized per diem for each day of travel; or, If actual expenses exceed the allowable per diem, the amount allowed for meals as provided in s. 112.061(6) (b), F.S., plus actual expenses for lodging at a single occupancy rate. Per diem shall be calculated using four six -hour periods (quarters) beginning at midnight for Class A or when travel begins for Class B travel. Travelers may only switch from actual to per diem while on Class A travel on a midnight to midnight basis. A traveler on Class A or B travel who elects to be reimbursed on a per diem basis is allowed $20.00 for each quarter from the time of departure until the time of return. Reimbursement for Meal Allowances That Exceed the State Rates The Division shall not reimburse for any meal allowance that exceeds $6 for breakfast, $11 for lunch, or $19 for dinner unless: • For counties — the requirements of section 112.061(14), Florida Statutes, are satisfied; • The costs do not exceed charges normally allowed by the Recipient in its regular operations as the result of the Recipient's written travel policy (in other words, the reimbursement rates apply 107 uniformly to all travel by the Recipient); and, • The costs do not exceed the reimbursement rates established by the United States General Services Administration ("GSA") for that locale (see https://www.gsa.gov/portal/content/l04877). Hotel Accommodations • A traveler may not claim per diem or lodging reimbursement for overnight travel within 50 miles (one-way) of his or her headquarters or residence unless the circumstances necessitating the overnight stay are fully explained by the traveler and approved by the Division. • Absent prior approval from the Division, the cost of any hotel accommodation shall not exceed $225 per night. Training Costs Supporting Documentation • Copies of contracts or agreements with consultants providing services; • Copies of invoices, receipts and cancelled checks, credit card statements and bank statements for proof of payment. • Copies of the agenda, certificates and/or sign in sheets (if using prepopulated sign in sheets they must be certified by the Emergency Management Director or Lead Instructor verifying attendance). For travel and conferences related to EMPG activities: • Copies of all receipts must be submitted (i.e., airfare, proof of mileage, toll receipts, hotel receipts, car rental receipts, etc.) Receipts must be itemized and match the dates of travel/conference; • Copies of Conferences must be providing an agenda. Proof of payment is also required for all travel and conferences. If the Sub -Recipient seeks reimbursement for travel costs that exceed the amounts stated in section 112.061(6)(b), Florida Statutes ($6 for breakfast, $11 for lunch, and $19 for dinner), then the Sub -Recipient must provide documentation that: The costs are reasonable and do not exceed charges normally allowed by the Sub -Recipient in its regular operations as a result of the Sub -Recipient 's written travel policy; and participation of the individual in the travel is necessary to the Federal award. Certain trainings may trigger Environmental Planning and Historic Preservation (EHP) requirements. Please reference the EHP sections in the NOFO and this Agreement for more information. E. Allowable Exercise Related Costs Exercises conducted with grant funds should test and evaluate performance towards meeting capability targets established in a jurisdiction's THIRA for the core capabilities needed to address its greatest risks. Exercise priorities should align to a current Integrated Preparedness Program (IPP) developed through an annual Integrated Preparedness Program Workshop (IPPW). GL Allowable Exercise -Related Costs • Design, Develop, Conduct and Evaluate an Exercise. This includes costs related to planning, meeting space and other meeting costs, facilitation costs, materials and supplies, travel, and documentation. Sub -Recipients are encouraged to use free public space/locations/facilities, whenever available, prior to the rental of space/locations/facilities. Exercises should provide the opportunity to demonstrate and validate skills learned, as well as to identify any gaps in these skills. Gaps identified during an exercise including those for children and individuals with disabilities or access and functional needs, should be identified in the AAR/IP and addressed in the exercise cycle. • Hiring of Full or Part -Time Staff or Contractors/Consultants. Full or part—time staff may be hired to support direct exercise activities. Payment of salaries and fringe benefits must be in accordance with the policies of the state or unit(s) of local government and have the approval of the state or FEMA, whichever is applicable. The services of contractors/consultants may also be procured to support the design, development, conduct and evaluation of exercises. • Overtime and Backfill. The entire amount of overtime costs, including payments related to backfilling personnel, which are the direct result of time spent on the design, development and 108 conduct of exercises are allowable expenses. These costs are allowed only to the extent the payment for such services is in accordance with the policies of the state or unit(s) of local government and has the approval of the state or FEMA, whichever is applicable. In no case is dual compensation allowable. That is, an employee of a unit of government may not receive compensation from their unit or agency of government AND from an award for a single period of time (e.g., 1:00 p.m. to 5:00 p.m.), even though such work may benefit both activities. Travel. Travel costs (e.g., airfare, mileage, per diem, hotel) are allowable as expenses by employees who are on travel status for official business related to the planning and conduct of the exercise activities. Supplies. Supplies are items that are expended or consumed during the course of the planning and conduct of the exercise activities (e.g., gloves, non-sterile masks, and disposable protective equipment). Other Items. These costs are limited to items consumed in direct support of exercise activities such as the rental of space/locations for planning and conducting an exercise, rental of equipment, and the procurement of other essential nondurable goods. Sub -Recipients are encouraged to use free public space/locations, whenever available, prior to the rental of space/locations. Costs associated with inclusive practices and the provision of reasonable accommodations and modifications that facilitate full access for children and adults with disabilities are allowable. When conducting an exercise that shall include meals for the attendees, the Sub -recipient shall submit a request for approval to the Division no later than twenty-five (25) days prior to the event to allow for both the Division and the Department of Financial Services to review. The request for meals must be submitted on letterhead and must include the date of exercise, agenda, number of attendees, and costs of meals. Unauthorized Exercise - Related Costs • Reimbursement for the maintenance and/or wear and tear costs of general use vehicles (e.g., construction vehicles) and emergency response apparatus (e.g., fire trucks, ambulances). The only vehicle costs that are reimbursable are fuel/gasoline or mileage; • Equipment that is purchased for permanent installation and/or use, beyond the scope of exercise conduct (e.g., electronic messaging signs); • Durable and non -durable goods purchased for installation and/or use beyond the scope of exercise conduct. 109 Exercise Costs Supporting Documentation • Copies of contracts, MOUs or agreements with consultants or sub -contractors providing services; • Copies of invoices, receipts and cancelled checks, credit card statements and bank statementsfor proof of payment; • Copies of Exercise Plan (EXPLAN), After -Action Report/improvement Plan (AAR/IP) and sign in sheets for conducted exercises (if using prepopulated sign in sheets they must be certified by theEmergency Management Director or Lead Exercise Planner verifying attendance). Certain exercises may trigger Environmental Planning and Historic Preservation (EHP) requirements. Please reference the EHP sections in the NOFO and this Agreement for more information. F. Management and Administration No more than 5% of each Sub -Recipient's total award shall be expended on Management and Administration costs. • Hiring of full-time or part-time staff or contractors/consultants responsible for activities relating to the management and administration of EMPG funds. Hiring of contractors/consultants shall follow applicable federal procurement requirements at 2 C.F.R. §§ 200.318-200.327. • Meeting -related expenses directly related to M&A of EMPG funds. G. Maintenance and Sustainment The use of DHS/FEMA preparedness grant funds for maintenance contracts, warranties, repair or replacement costs, upgrades, and user fees are allowable, as described in DHS/FEMA Policy FP 205-402-125-1 (Additional guidance is provided in DHS/FEMA Policy FP 205-402-125-1, Maintenance Contracts and Warranty Coverage Funded by Preparedness Grants, located at: http://www.fema.gov/medialibrary/assets/documents/32474, under all active and future grant awards, unless otherwise noted. Preparedness grant funds may be used to purchase maintenance contracts or agreements, warranty coverage, licenses and user fees. These contracts may exceed the period of performance if they are purchased incidental to the original purchase of the system or equipment as long as the original purchase of the system or equipment is consistent with that which is typically provided for, or available through, these types of agreements, warranties, or contracts. When purchasing a stand-alone warranty or extending an existing maintenance contract on an already -owned piece of equipment system, coverage purchased shall not exceed the period of performance of the award used to purchase the maintenance agreement or warranty. As with warranties and maintenance agreements, this extends to licenses and user fees as well. H. Construction and Renovation EMPG funding shall not be used for construction and renovation projects without prior written approval from the Division and DHS/FEMA. In some cases, the installation of equipment may constitute construction and/or renovation. All Sub -Recipients of EMPG funds shall request and receive approval from the Division and DHS/FEMA before any EMPG funds are used for any construction or renovation. Indirect Facilities & Administrative (F&A) Costs Indirect costs are allowable under this program as described in 2 C.F.R. Part 200, including 2 C.F.R. § 200.414. Sub -Recipients with a current negotiated indirect cost rate agreement that desire to charge indirect costs to an award shall provide a copy of their negotiated indirect cost rate agreement at the time of application. Sub -Recipients that are not 47 110 required by 2 C.F.R. Part 200 to have a negotiated indirect cost rate agreement but are required by 2 C.F.R. Part 200 to develop an indirect cost rate proposal shall provide a copy of their proposal at the time of application. Post -award requests to charge indirect costs shall be considered on a case-by-case basis and based upon the submission of an agreement or proposal as discussed above. Disposition When original or replacement equipment, including excepted and controlled items, acquired under a federal award is no longer needed for the original project or program or for other activities currently or previously supported by a federal awarding agency, except as otherwise provided in federal statutes, regulations, or federal awarding agency disposition instructions, the Sub - Recipient shall request disposition instructions from their Grant Manager and the State Administrative Agency (SAA) shall request disposition instructions from federal awarding agency as required by the terms and conditions of the federal award. Excepted or controlled equipment shall not be transferred and shall remain in the possession of the original FEMA grant recipient. The Sub -Recipient shall notify their Grant Manager via email one (1) year in advance of the expiration of the equipment's posted shelf -life or normal life expectancy or when it has been expended. The Sub -Recipient shall notify their Grant Manager immediately if the equipment is destroyed, lost, or stolen. K. Ensuring the Protection of Civil Rights As the Nation works towards achieving the National Preparedness Goal, it is important to continue to protect the civil rights of individuals. Sub -Recipients shall carry out their programs and activities, including those related to the building, sustainment, and delivery of core capabilities, in a manner that respects and ensures the protection of civil rights for protected populations. Federal civil rights statutes, such as Section 308 of the Stafford Act, Section 504 of the Rehabilitation Act of 1973, and Title VI of the Civil Rights Act of 1964, Age Discrimination Act, along with DHS and FEMA regulations, prohibit discrimination on the basis of race, color, national origin, sex, religion, age, disability, limited English proficiency, or economic status in connection with programs and activities receiving federal financial assistance from FEMA. Monitoring and oversight requirements in connection with Sub -Recipient compliance with federal civil rights laws are also authorized pursuant to 44 C.F.R Part 7. In accordance with civil rights laws and regulations, Sub -Recipients shall ensure the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment. L. SAFECOM Emergency communications systems and equipment shall meet applicable SAFECOM Guidance. Sub -Recipients shall coordinate with the Statewide Interoperability Coordinator (SWIC) and the State Interoperability Governing Body (SIGB) to ensure interoperability and long-term compatibility. M. Procurement The purpose of the procurement process is to ensure a fair and reasonable price is paid for the services provided. All procurement transactions shall be conducted in a manner providing full and open competition and shall comply with the standards articulated in: • 2 C.F.R. Part 200; • Chapter 287, Florida Statues; and, 111 • Sub -Recipient's local procurement policy. To the extent that one standard is more stringent than another, the Sub -Recipient shall follow the more stringent standard. For example, if a state statute imposes a stricter requirement than a federal regulation, then the Sub -Recipient shall adhere to the requirements of the state statute. The State of Florida procurement policy and procedure is as follows: Amount Documentation Required Shall be carried out using good purchasing practices which may include Up to $2,499 certification of written or telephone quotes $2,500 but less Submit summary of 2 (minimum) written quotes, signed by the vendor than 35,000 representative. For vendors not on STC; submit documentation of Invitation to Bid > $35,000 Process (ITB), Request for Proposal (RFP) or Intent to Negotiate (ITN) All Sole Source FDEM pre -approval is required Alternative Commodities or Services available to the State via outside contract Contract Source vehicle. A copy of the executed contract shall be submitted along with additional quotes if GSA 70 or GSA 84. Formal Competitive Solicitations: $35,000 and above and not available on STC include Invitation to Bid (ITB), Request for Proposal (RFP), or Invitation to Negotiate (ITN). Each requires a Scope of Work that meets all statutory requirements and formal posting or publication processes. Subrecipients shall submit their formal solicitation documentation and subsequent vendor selection documentation for approval prior to initiating any work. The Division shall review the solicitation and provide comments, if any, to the Sub -Recipient. Consistent with 2 C.F.R. § 200.325, the Division shall review the solicitation for compliance with the procurement standards outlined in 2 C.F.R. § 200.318 through 200.327 as well as Appendix II to 2 C.F.R. Part 200. Consistent with 2 C.F.R. § 200.318(k), the Division shall not substitute its judgment for that of the Sub -Recipient. While the Sub -Recipient does not need the approval of the Division in order to publish a competitive solicitation, this review may allow the Division to identify deficiencies in the vendor requirements or in the commodity or service specifications. The Division's review and comments shall not constitute an approval of the solicitation. Regardless of the Division's review, the Sub -Recipient remains bound by all applicable laws, regulations, and agreement terms. If during its review the Division identifies any deficiencies, then the Division shall communicate those deficiencies to the Sub -Recipient as quickly as possible. If the Sub -Recipient publishes a competitive solicitation after receiving comments from the Division that the solicitation is deficient, then the Division may: • Terminate this Agreement in accordance with the provisions outlined in paragraph (17) above; and, • Refuse to reimburse the Sub -Recipient for any costs associated with that solicitation. Examples of when to use each method: Invitation to Bid: Procurement by sealed bidding is a method where bids are publicly solicited through formal advertising. It is when a Sub -Recipient can establish precise specifications for a commodity or service defining, with specificity, as further outlined in the scope of work. EEO 112 Under this procurement method, the solicitation document used is known as the ITB. Sealed bidding is often utilized when the Sub -Recipient's requirements are known and specific in detail. The sealed bid method is the preferred method for procuring construction services and is appropriate when the following conditions are present: • Complete, adequate, and realistic specifications or purchase descriptions are available; • Two or more responsible bidders are willing and able to compete effectively for the business; The Sub -Recipient primarily selects the successful bidder based on price. This includes the price - related factors included within the solicitation. Other than the responsibility determination, the Sub -Recipient shall not select a contractor on the basis of non -price -related factors. Sub -Recipients shall publicly advertise the ITB. The precise manner of advertising depends upon the facts and circumstances of the procurement, subject to any applicable state, local, and/or tribal requirements. Sub -Recipients shall solicit bids from an adequate number of known suppliers. The regulation does not provide specific guidance regarding the method for soliciting additional bids or what constitutes an adequate number of qualified sources. These determinations shall be dependent upon the facts and circumstances of the procurement, subject to any relevant state, local, and/or federal requirements. The general requirements for an ITB are as follows: • The ITB shall define the items or services including any specifications and pertinent attachments so potential bidders can properly respond. • The subrecipient shall provide potential bidders sufficient time to prepare and submit bids prior to the date set for bid opening. • All bids shall be opened at the date, time, and location established in the ITB. • After the official bid opening procedures are completed, the subrecipient shall award a contract to the lowest price bid provided by a responsive and responsible bidder. If specified in the bidding documents, the subrecipient may consider discounts, transportation costs, and life cycle costs to determine which bid is the lowest. If using the Sealed Bidding method of procurement, the subrecipient shall document the procurement history. Examples of circumstances under which a subrecipient may reject an individual bid include but are not limited to: • The bid fails to conform to the essential requirements or applicable specifications as outlined in the ITB; • The bid fails to conform to the delivery schedule as outlined in the ITB; • The bid imposes conditions that would modify the requirements as outlined in the ITB; • The Sub -Recipient determines that the bid price is unreasonable; • The bid is submitted by a suspended or debarred vendor; and/or • A bidder fails to furnish a bid guarantee when such a guarantee is required. The contract should then be awarded to the responsible and responsive vendor who submits the lowest responsive bid. The Subrecipient shall also provide a justification letter to the Division supporting their selection. Request for Proposal: Under this procurement method, the solicitation document used is also known as the RFP. Proposals are an acceptable method of procurement when the nature of the 50 113 procurement does not lend itself to sealed bidding and when a cost -reimbursement contract is appropriate. Through this process, vendors can compete on a cost basis for like items or services. The request for proposals method of procurement is an acceptable method of procurement, where non -state entities cannot base the contract award exclusively on price or price -related factors due to the nature of the service or property to be acquired. Simply put, the Sub -Recipient can describe what it wants to accomplish but the methods or means to accomplish the desired outcome cannot be easily defined. An RFP is appropriate when the following conditions are present: • The Sub -Recipient cannot base the contract award exclusively on price or price - related factors due to the nature or the service or property to be acquired; • The requirements are less definitive, more development work is required, or there is a greater risk of performance; • Technical capability, past performance, and prior experience considerations play a dominant role in source selection; and/or • Separate discussions with individual offerors are expected to be necessary after they have submitted proposals. This is a key distinction from the sealed bidding method of procurement where discussions with individual bidders are prohibited and the contract shall be awarded based on price and price -related factors alone. The Sub -Recipient shall publicize their RFP. The manner of the advertising depends upon the facts and circumstances of the procurement, subject to state, local, and/or tribal requirements. Within the advertisement, the Sub -Recipient shall identify all evaluation factors and their relative importance. The following provides several considerations for developing evaluation factors: • The evaluation factors for a specific procurement should reflect the subject matter and elements that are most important to the Sub -Recipient. • The evaluation factors may include such things as technical design, technical approach, length of delivery schedules, past performance, and quality of proposed personnel. • The Sub -Recipient may use any one or a combination of source selection approaches as permitted under state, local, and/or tribal laws, regulations, and procedures, and these approaches will often differ based on the relative importance of price or cost for the procurement. • If permitted by the Sub -Recipient, written procurement procedures, and applicable state, local, and/or tribal law, the Sub -Recipient may award a contract to the offeror whose proposal offers the "best value" to the Sub -Recipient. The solicitation shall also inform potential offerors that the award shall be made on a "best value" basis, which should include a statement that the Sub -Recipient reserves the right to award the contract to other than the lowest -priced offeror. • The RFP shall identify evaluation factors and their relative importance; however, they need not disclose numerical or percentage ratings or weights. • FEMA does not require any specific evaluation factors or analytic process, but the evaluation factors shall support the purposes of the grant or cooperative agreement. The Sub -Recipient shall consider any response to a publicized request for proposals to the maximum extent practical. In addition to publicizing the request for proposals, non -state entities shall solicit proposals from an adequate number of offerors, providing them with sufficient response time before the date set for the receipt of proposals. Determining an adequate number of sources shall depend upon the facts and circumstances of the procurement, subject to relevant state, local, and/or tribal requirements. The Sub -Recipient shall have a written method for conducting their technical evaluations of the proposals received and for selecting offerors. When evaluating proposals, FEMA expects the Sub -Recipient to consider all evaluation factors specified in its solicitation documents and 51 114 evaluate offers only on the evaluation factors included in the solicitation documents. A Sub - Recipient shall not modify its evaluation factors after proposals have been submitted without re- opening the solicitation. In awarding a contract that will include options, FEMA expects the Sub - Recipient to evaluate proposals for any option quantities or periods contained in the solicitation if it intends to exercise those options after the contract is awarded. The contract shall be awarded to the responsible offeror whose proposal is most advantageous to the program with price and other factors considered. Invitation to Neqotiate: If the Sub -Recipient has determined that an ITB or an RFP will not result in the best value, the Sub -Recipient may procure commodities and contractual services using the ITN process. The procurement file shall be documented to support why an ITB and a RFP will not result in best value (287.057(1)(c), Florida Statutes). Contracts that exceed $1 million require a Florida Certified Contract Negotiator. Contracts more than $10 million in any fiscal year, requires a Project Management Professional on the team. Formal competitive solicitation postings or publication on an organization's website shall not be accepted as it discourages true competition. Effective FY2023 such postings shall be via a public forum for example the Florida Administrative Registry, local newspaper, etc. The Division shall pre -approve all scopes of work for projects funded under this agreement. Also, to receive reimbursement from the Division, the Sub -Recipient shall provide the Division with a suspension and debarment form for each vendor that performed work under the agreement. Furthermore, if requested by the Division, the Sub -Recipient shall provide copies of solicitation documents including responses and justification of vendor selection. Contracts may include: State Term Contract: A State Term Contract is a contract that is competitively procured by the Division of State Purchasing for selected products and services for use by agencies and eligible users. Florida agencies and eligible users may use a request for quote to obtain written pricing or services information from a state term contact vendor for commodities or contractual services available on a state term contract from that vendor. Use of state term contracts is mandatory for Florida agencies in accordance with section 287.056, Florida Statutes. Alternate Contract Source: An Alternate Contract Source is a contract let by a federal, state, or local government that has been approved by the Department of Management Services, based on a determination that the contract is cost-effective and in the best interest of the state, for use by one or all Florida agencies for purchases, without the requirement of competitive procurement. Alternate contract sources are authorized by subsection 287.042(16), Florida Statutes, as implemented by Rule 60A-1.045, Florida Administrative Code. General Services Administration Schedules: The General Services Administration (GSA) is an independent agency of the United States Government. States, tribes, and local governments, and any instrumentality thereof (such as local education agencies or institutions of higher education) may participate in the GSA Cooperative Purchasing Program.). Refer to the appropriate GSA Schedule for additional requirements. N. Piggybacking The practice of procurement by one agency using the agreement of another agency is called piggybacking. The ability to piggyback onto an existing contract is not unlimited. The Sub - Recipient's written procurement policy shall be submitted to the Division and shall allow for piggybacking. The existing contract shall contain language or other legal authority authorizing third parties to make purchases from the contract with the vendor's consent. The terms and conditions of the new contract, including the Scope of Work, shall be substantially the same as those of the existing contract and approved by the Division. The piggyback contract shall not 52 115 exceed the existing contract in scope or volume of goods or services. A Sub -Recipient shall not use the preexisting contract merely as a "basis to begin negotiations" for a broader or materially different contract. Section 215.971, Florida Statutes Statutory changes enacted by the Legislature impose additional requirements on grant and Sub Recipient agreements funded with federal or state financial assistance. Section 215.971(1) states: An agency agreement that provides state financial assistance to a Recipient or Sub -Recipient, as those terms are defined in section215.97, Florida Statutes, or that provides federal financial assistance to a Sub -Recipient, as defined by applicable United States Office of Management and Budget circulars, shall include all of the following: • A provision specifying a Scope of Work that clearly establishes the tasks that the Recipient or Sub -Recipient is required to perform. • A provision dividing the agreement into quantifiable units of deliverables that shall be received and accepted in writing by the agency before payment. Each deliverable shall be directly related to the Scope of Work and specify the required minimum level of service to be performed and the criteria for evaluating the successful completion of each deliverable. A provision specifying the financial consequences that apply if the Recipient or Sub - Recipient fails to perform the minimum level of service required by the agreement. The provision can be excluded from the agreement only if financial consequences are prohibited by the federal agency awarding the grant. Funds refunded to a state agency from a Recipient or Sub -Recipient for failure to perform as required under the agreement may be expended only in direct support of the program from which the agreement originated. • A provision specifying that a Recipient or Sub -Recipient of federal or state financial assistance may expend funds only for allowable costs resulting from obligations incurred during the specified agreement period. • A provision specifying that any balance of unobligated funds which has been advanced or paid shall be refunded to the state agency. • A provision specifying that any funds paid in excess of the amount to which the Recipient or Sub -Recipient is entitled under the terms and conditions of the agreement shall be refunded to the state agency. • Any additional information required pursuant to s. 215.97. O. Unallowable Procurement Practices Noncompetitive Pricing Practices: Noncompetitive pricing practices between firms or between affiliated companies are prohibited. Subrecipients shall undertake reasonable efforts to ensure that prospective vendors have not engaged in noncompetitive pricing practices when responding to a solicitation, and that they themselves have not when soliciting vendors. If noncompetitive pricing practices are identified, the activity shall be reported to the Division. Below are common noncompetitive pricing practices: • Bid rigging: Occurs when conspiring competitors raise prices under a process where a purchaser acquires goods or services by soliciting competing bids. Competitors agree in advance who will submit the lowest priced or winning bid on a contract. Bid rigging takes many forms, but conspiracies usually fall into one or more of the following categories: bid suppression, complementary bidding, and bid rotation. 53 116 • Bid suppression: Where one or more competitor(s), who otherwise would be expected to bid or who have previously bid, agree to refrain from bidding or withdraw a previously submitted bid so that the designated winning competitor's bid will be accepted. Complementary bidding: Also known as "cover" or "courtesy" bidding, occurs when some competitors agree to submit bids that are either too high to be accepted or contain special terms that will not be acceptable to the buyer. Such bids are not intended to secure the buyer's acceptance but are merely designed to give the appearance of genuine competitive bidding while making the designated winning competitor's bid appear most attractive. Complementary bidding schemes are a frequent form of bid rigging. They defraud purchasers by creating the appearance of competition to conceal secretly inflated prices. • Bid rotation: A scheme where all conspirators submit bids but take turns being the lowest bidder. The terms of the rotation may vary. For example, competitors may take turns on contracts according to the size of the contract, allocating equal amounts to each conspirator, or allocating volumes that correspond to the size of each conspirator company. P. Unique Entity Identifier (UEI) and System for Award Management (SAM) Sub -Recipients for this award shall: • Be registered in SAM; • Provide a valid DUNS number; and • Continue to maintain an active UEI with current information at all times during which it has an active federal award. Q. Reporting Requirements 1. Quarterly Programmatic Reporting: The Quarterly Programmatic Report is due within thirty (30) days after the end of the reporting periods (March 31, June 30, September 30, and December 31) for the life of this contract. • If a report(s) is delinquent, future financial reimbursements shall be withheld until the Sub -Recipient's reporting is current. • If a report goes three (3) consecutive quarters from date of execution without the Sub - Recipient reflecting any activity and/or expenditures it shall result in the issuance of a noncompliance letter, and a written justification shall then be provided. o Based on the Division's determination, the Sub -Recipient shall have thirty (30) days to submit a letter of appeal to the Division. o Sub -Recipients shall only be allowed one opportunity to appeal. o If the appeal is denied, or if there is no response to the notification of noncompliance, the Sub -Recipient's funds shall be terminated. • If a report goes four (4) consecutive quarters from date of execution without the Sub - Recipient reflecting any activity and/or expenditures, it shall result in termination of the agreement. Programmatic Reporting Schedule Reporting Period Report due to FDEM no later than January 1 through March 31 April 30 54 117 April 1 through June 30 July 31 July 1 through September 30 October 31 October 1 through December 31 January 31 Programmatic Reporting- Biannual Strategic Implementation Report (BSIR): After the end of each reporting period, for the life of the contract unless directed otherwise, the Division, shall complete the Biannual Strategic Implementation Report in the Grants Reporting Tool (GRT) https://www.reporting.odp.dhs.gov. The reporting periods are January 1 -June, July 1 -December 31. Data entry is scheduled for December 1 and June 1 respectively. Future awards and reimbursement may be withheld if these reports are delinquent. 3. Reimbursement Requests: A request for reimbursement may be sent to your grant manager for review and approval at any time during the contract period. Reimbursements shall be requested within ninety (90) calendar days of expenditure of funds, and quarterly at a minimum. Failure to submit request for reimbursement within ninety (90) calendar days of expenditure shall result in denial of reimbursement. The Sub -Recipient should include the category's corresponding line -item number in the "Detail of Claims" form. This number can be found in the "Proposed Program Budget". A line -item number is to be included for every dollar amount listed in the "Detail of Claims" form. 4. Close-out Programmatic Reporting: The Close-out Report is due to the Florida Division of Emergency Management no later than sixty (60) calendar days after the agreement is either completed or the agreement has expired. 5. Administrative Closeout An administrative closeout may be conducted when a recipient is not responsive to the Division's reasonable efforts to collect required reports, forms, or other documentation needed to complete the standard award and/or closeout process. The Division shall make three (3) written attempts to collect required information before initiating an administrative closeout. If an award is administratively closed, the Division may decide to impose remedies for noncompliance per 2 C.F.R. § 200.339, consider this information in reviewing future award applications, or apply special conditions to existing or future awards. R. Period of Performance (POP) Extensions An extension to the period of performance identified in the agreement is allowable under limited circumstances and shall only be considered through formal, written requests to the Division. All extension requests shall contain specific and compelling justifications as to why an extension is required, and shall address the following: The grant program, fiscal year, and agreement number; Reason for the delay—including details of the legal, policy, or operational challenges that prevent the final expenditure of awarded funds by the deadline; Current status of project activity; Requested POP termination date and new project completion date; Amount of funds reimbursed to date; Remaining available funds; Budget outlining how the remaining funds shall be expended; Plan for completion, including milestones and timeframes for achieving each milestone and the position or person responsible for implementing the plan for completion; and M 118 S T to 9. Certification that the activity(ies) shall be completed within the extended POP without any modification to the original statement of work, as described in the investment justification and as approved by FEMA. Extension requests are typically granted for no more than a six (6) month period, and shall be granted only due to compelling legal, policy, or operational challenges. Extension requests shall only be considered for the following reasons: • Contractual commitments by the recipient or Sub -Recipient with vendors prevent completion of the project within the existing POP; • The project shall undergo a complex environmental review that cannot be completed within the existing POP; • Projects are long-term by design, and therefore acceleration would compromise core programmatic goals; or • Where other special or extenuating circumstances exist. Subrecipient's shall be limited to one (1) extension over the grant period of performance. Extension requests shall not be considered within the last one hundred eighty (180) days of the grant period of performance. Programmatic Point of Contact Contractual Point of Contact Programmatic Point of Contact Brandi King Teresa Warner FDEM FDEM 2555 Shumard Oak Blvd. 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 Tallahassee, FL 32399-2100 (850) 815-4351 (850) 815-4351 Brandi.King(cDem.myflorida.com Teresa.warner@em.myflorida.com Contractual Responsibilities • The Division shall determine eligibility of projects and approve changes in Scope of Work. • The Division shall administer the financial processes. Failure to Comply • Failure to comply with any of the provisions outlined above shall result in disallowance of reimbursement for expenditures. 119 ATTACHMENT D Program Statutes and Regulations 1) Age Discrimination Act of 1975 42 U.S.C. § 6101 et seq. 2) Americans with Disabilities Act of 1990 42 U.S.C. § 12101-12213 3) Chapter 473, Florida Statutes 4) Chapter 215, Florida Statutes 5) Chapter 252, Florida Statutes 6) Title VI of the Civil Rights Act of 1964 42 U.S.C. § 2000 et seq. 7) Title VIII of the Civil Rights Acts of 1968 42 U.S.C. § 3601 et seq. 8) Copyright notice 17 U.S.C. §§ 401 or 402 9) Assurances, Administrative Requirements, Cost Principles, Representations and Certifications 2 C.F.R. Part 200 10) Debarment and Suspension Executive Orders 12549 and 12689 11) Drug Free Workplace Act of 1988 41 U.S.C. § 701 et seq. 12) Duplication of Benefits 2 C.F.R. Part 200, Subpart E 13) Energy Policy and Conservation Act 42 U.S.C. § 6201 et seq. 14) False Claims Act and Program Fraud Civil Remedies 31 U.S.C. § 3729-3733 also 31 U.S.C. § 3801-3812 15) Fly America Act of 1974 49 U.S.C. § 41102 also 49 U.S.C. § 40118 16) Hotel and Motel Fire Safety Act of 1990 15 U.S.C. § 2225a 17) Lobbying Prohibitions 31 U.S.C. § 1352 18) Patents and Intellectual Property Rights 35 U.S.C. § 200 et seq. 19) Procurement of Recovered Materials section 6002 of Solid Waste Disposal Act 20) Terrorist Financing Executive Order 13224 21) Title IX of the Education Amendments of 1972 (Equal Opportunity in Education Act) 20 U.S.C. § 1681 et seq. 22) Trafficking Victims Protection Act of 2000 22 U.S.C. § 7104 23) Rehabilitation Act of 1973 Section 504, 29 U.S.C. § 794 24) USA Patriot Act of 2001 18 U.S.C. § 175-172c 25) Whistleblower Protection Act 10 U.S.C. § 2409, 41 US.C. § 4712, and 10 U.S.C. § 2324, 41 U.S.C. § 4304 and § 4310 26) 53 Federal Register 8034 27) Rule Chapters 27P-6, 27P-11, and 27P-19, Florida Administrative Code 28) Section 287.138, Florida Statutes 57 120 ATTACHMENT E JUSTIFICATION OF ADVANCE PAYMENT SUB -RECIPIENT: Requests for an advance shall be submitted at the time of agreement execution or approval of the EHP, if required. If you are requesting an advance, indicate same by checking the box below and completing the Estimated Expenses table. [ ] ADVANCE REQUESTED (Maximum request amount may not exceed fifty percent.) Advance payment of $ is requested. Balance of payments will be made on a reimbursement basis. This advance will be used on equipment specific projects within the budget of the agreement. We would not be able to operate the program without this advance. ESTIMATED EXPENSES Project Days to complete Funding amount requested LINE -ITEM JUSTIFICATION (For each line item, provide a detailed justification explaining the need for the cash advance. The justification shall include supporting documentation that clearly shows the advance shall be expended within the first ninety (90) days of the contract term or approval of the EHP, if required. Support documentation should include but is not limited to the following: quotes for purchases, delivery timelines, salary and expense projections, etc. to provide the Division reasonable and necessary justification. Any advance funds not expended within the specified timeframe shall be returned to the Division Cashier, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399, within thirty (30) days, along with any interest earned on the advance) *REQUESTS FOR ADVANCE PAYMENTS SHALL BE CONSIDERED ON A CASE BY CASE BASIS* **EHP SHALL BE COMPLETED AND APPROVED BY FEMA PRIOR TO ADVANCE** Signature of Sub -Recipient Name and Title of Sub -Recipient W Date: 121 ATTACHMENT F WARRANTIES AND REPRESENTATIONS 59 122 Financial Management The Sub -Recipient's financial management system shall comply with 2 C.F.R. § 200.302. Procurements Any procurement undertaken with funds authorized by this Agreement shall comply with the requirements of 2 C.F.R. § 200, Part D—Post Federal Award Requirements—Procurement Standards (2 C.F.R. §§ 200.318 through 200.327). Business Hours The Sub -Recipient shall have its offices open for business, with the entrance door open to the public, and at least one employee on site, from: Monday -Friday 8:30AM-5:OOPM Licensinq and Permitting All subcontractors or employees hired by the Sub -Recipient shall have all current licenses and permits required for the particular work for which they are hired by the Sub -Recipient. 123 ATTACHMENT G CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION Subcontractor Covered Transactions The prospective subcontractor, , of the Sub -Recipient certifies, by submission of this document, that neither it, its principals, nor its affiliates are presently debarred, suspended, proposed for debarment, declared ineligible, voluntarily excluded, or disqualified from participation in this transaction by any federal department or agency. SUB -CONTRACTOR: By: Signature Name and Title Street Address City, State, Zip Date Sub -Recipient's Name FDEM Agreement Number 61 124 ATTACHMENT H STATEMENT OF ASSURANCES All of the instructions, guidance, limitations, and other conditions set forth in the Notice of Funding Opportunity (NOFO) for this program are incorporated here by reference in the terms and conditions of your award. All Sub -Recipients shall comply with any such requirements set forth in the program NOFO. All Sub -Recipients who receive awards made under programs that prohibit supplanting by law shall ensure that federal funds do not replace (supplant) funds that have been budgeted for the same purpose through non-federal sources. All Sub -Recipients shall acknowledge their use of federal funding when issuing statements, press releases, requests for proposals, bid invitations, and other documents describing projects or programs funded in whole or in part with federal funds. Any cost allocable to a particular federal award provided for in 2 C.F.R. Part 200, Subpart E shall not be charged to other federal awards to overcome fund deficiencies, to avoid restrictions imposed by federal statutes, regulations, or terms and conditions of the federal awards, or for other reasons. However, this prohibition would not preclude a Sub -Recipient from shifting costs that are allowable under two or more federal awards in accordance with existing federal statutes, regulations, or the terms and conditions of the federal award. Sub -Recipients are required to comply with the requirements set forth in the government -wide Award Term regarding the System for Award Management and Universal Identifier Requirements located at 2 C.F.R. Part 25, Appendix A, the full text of which incorporated here by reference in the terms and conditions of your award. All Sub -Recipients shall acknowledge and agree to comply with applicable provisions governing DHS access to records, accounts, documents, information, facilities, and staff. 1. Sub -Recipient shall cooperate with any compliance review or compliant investigation conducted by the State Administrative Agency or DHS. 2. Sub -Recipient shall give the State Administrative Agency, DHS or through any authorized representative, access to and the right to examine and copy, records, accounts, and other documents and sources of information related to the federal financial assistance award and permit access to facilities, personnel, and other individuals and information as may be necessary, as required by DHS regulations and other applicable laws or program guidance. 3. Sub -Recipient shall submit timely, complete, and accurate reports to the Division and maintain appropriate backup documentation to support the reports. Sub -Recipients shall also comply with all other special reporting, data collection and evaluation requirements, as prescribed by law or detailed in program guidance. 4. Sub -Recipient shall acknowledge their use of federal funding when issuing statements, press releases, requests for proposals, bid invitations, and other documents describing projects or programs funded in whole or in part with federal funds. 5. Sub -Recipient who receives awards made under programs that provide emergency communications equipment and its related activities shall comply with SAFECOM Guidance for Emergency Communications Grants, including provisions on technical standards that ensure and enhance interoperable communications. 6. When original or replacement equipment acquired under this award by the Sub -Recipient is no longer needed for the original project or program or for other activities currently or previously 62 125 supported by DHS/FEMA, you shall request instructions from the Division to make proper disposition of the equipment pursuant to 2 C.F.R. § 200.313. 7. DHS/FEMA funded activities that may require an EHP review are subject to FEMA's Environmental Planning and Historic Preservation (EHP) review process. This review does not address all federal, state, and local requirements. Acceptance of federal funding requires recipient to comply with all federal, state, and local laws. Failure to obtain all appropriate federal, state, and local environmental permits and clearances may jeopardize federal funding. If ground disturbing activities occur during construction, applicant shall monitor ground disturbance, and if any potential archeological resources are discovered, applicant shall immediately cease work in that area and notify the pass-through entity, if applicable, and DHS/FEMA. 8. Sub -Recipients are required to comply with the Build America, Buy America Act (BABAA), which was enacted as part of the Infrastructure Investment and Jobs Act Sections 70901- 70927, Pub. L. No. 117-58 (2021); and Executive Order 14005, Ensuring the Future is Made in All of America by All of America's Workers. 9. Sub -Recipient shall comply with the applicable provisions of the following laws and policies prohibiting discrimination: a. Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination based on race, color, or national origin (including limited English proficiency). b. Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination based on disability. c. Title IX of the Education Amendments Act of 1972, as amended, which prohibits discrimination based on sex in education programs or activities. d. Age Discrimination Act of 1975, which prohibits discrimination based on age. e. U.S. Department of Homeland Security regulation 6 C.F.R. Part 19, which prohibits discrimination based on religion in social service programs. 63 126 ATTACHMENT MANDATORY CONTRACT PROVISIONS Provisions: Any contract or subcontract funded by this Agreement shall contain the applicable provisions outlined in Appendix II to 2 C.F.R. Part 200. It is the responsibility of the Sub -Recipient to include the required provisions. The following is a list of sample provisions from Appendix II to 2 C.F.R. Part 200 that may be required:' Appendix II to Part 200—Contract Provisions for Non -Federal Entity Contracts Under Federal Awards In addition to other provisions required by the federal agency or non-federal entity, all contracts made by the non-federal entity under the federal award shall contain provisions covering the following, as applicable. (A) Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, shall address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. (B) All contracts in excess of $10,000 shall address termination for cause and for convenience by the non-federal entity including the manner by which it will be affected and the basis for settlement. (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract' in 41 CFR Part 60-1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." (D) Davis -Bacon Act, as amended (40 U.S.C. 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-federal entities shall include a provision for compliance with the Davis -Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The non-federal entity shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract shall be conditioned upon the acceptance of the wage determination. The non-federal entity shall report all suspected or reported violations to the federal awarding agency. The contracts shall also include a provision for compliance with the Copeland "Anti - Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or Sub -Recipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non- federal entity shall report all suspected or reported violations to the federal awarding agency. (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers shall include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. § 3702 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a ' For example, the Davis -Bacon Act is not applicable to other FEMA grant and cooperative agreement programs, including the Public Assistance Program or Hazard Mitigation Grant Program; however, Sub - Recipient may include the provision in its subcontracts. 64 127 standard work week of forty (40) hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of forty (40) hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. (F) Rights to Inventions Made Under a Contract or Agreement. If the federal award meets the definition of "funding agreement" under 37 CFR § 401.2(a) and the recipient or Sub -Recipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or Sub -Recipient shall comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. (G) Clean Air Act (42 U.S.C. §§ 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended—Contracts and subgrants of amounts in excess of $150,000 shall contain a provision that requires the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. §§ 1251-1387). Violations shall be reported to the federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). (H) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR § 180.220) shall not be made to parties listed on the governmentwide Excluded Parties List System in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR Part 1986 Comp., p. 189) and 12689 (3 CFR Part 1989 Comp., p. 235), "Debarment and Suspension." The Excluded Parties List System in SAM contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (1) Byrd Anti -Lobbying Amendment (31 U.S.C. § 1352)—Contractors that apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it shall not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. (J) See 2 C.F.R. § 200.323 Procurement of recovered materials. (K) See 2 C.F.R. § 200.216 Prohibition on certain telecommunication and video surveillance services or equipment. (L) See 2 C.F.R. § 200.322 Domestic preferences for procurements (Appendix H to Part 200, Revised Eff. 1111212020). Please note that the Sub -Recipient alone is responsible for ensuring that all language included in its contracts meets the requirements of 2 C.F.R. § 200.327 and 2 C.F.R. Part 200, Appendix H. ATTACHMENT J FINANCIAL AND PROGRAM MONITORING GUIDELINES Florida has enhanced state and local capability and capacity to prevent, prepare and respond to terrorist threats since 1999 through various funding sources including federal grant funds. The Division has a responsibility to track and monitor the status of grant activity and items purchased to ensure compliance with applicable Emergency Management Performance Grant (EMPG) Program guidance and statutory regulations. The monitoring process is designed to assess a Sub -Recipient agency's compliance with applicable state and federal guidelines. 65 128 Monitoring is accomplished utilizing various methods including desk monitoring and on-site visits. There are two primary areas reviewed during monitoring activities - financial and programmatic monitoring. Financial monitoring primarily focuses on statutory and regulatory compliance with administrative grant requirements. It involves the review of records associated with the purchase and disposition of property, projects and contracts. Programmatic monitoring seeks to validate and assist in the grant progress, targeting issues that may be hindering project goals and ensuring compliance with the purpose of the grant and overall grant program. Programmatic monitoring involves the observation of equipment purchased, protocols and other associated records. Various levels of financial and programmatic review may be accomplished during the monitoring process. Pursuant to 2 C.F.R. § 200.337, the Division has the right, at all reasonable times, to make site visits or conduct desk reviews to review project accomplishments and management control systems to review award progress and to provide any required technical assistance. During site visits or desk reviews, The Division shall review recipients' files related to the award. As part of any monitoring and program evaluation activities, recipients shall permit the Division, upon reasonable notice, to review grant -related records and to interview the organization's staff and contractors regarding the program. Recipients shall respond in a timely and accurate manner to the Division's requests for information relating to the award. Monitoring Selection and Scheduling: Each year the Division shall conduct monitoring based on a "Risk Assessment". The risk assessment tool is used to help in determining the priority of Sub -Recipients that should be reviewed and the level of monitoring that should be performed. Note that although a given grant may be closed, it is still subject to either desk or on-site monitoring for a five (5) year period following closure. Areas that shall be examined include: • Management and administrative procedures; • Grant folder maintenance; • Equipment accountability and sub -hand receipt procedures; • Program for obsolescence; • Status of equipment purchases; • Status of training for purchased equipment; Status and number of response trainings conducted to include number trained; • Status and number of exercises; • Status of planning activity; • Anticipated projected completion; • Difficulties encountered in completing projects; • Agency NIMS/ICS compliance documentation; • Equal Employment Opportunity (EEO Status); • Procurement Policy The Division may request additional monitoring/information of the activity, or lack thereof, generates questions from the region, the sponsoring agency or the Division's leadership. The method of gathering this information shall be determined on a case-by-case basis. Monitoring Activities: Desk reviews and site visits are two forms of monitoring. Desk monitoring is the review of projects, financial activity and technical assistance between the Division and the applicant via e-mail and telephone. On-site monitoring are actual visits to the Sub -Recipient agencies by Division representatives who examines records, procedures and equipment. Desk monitoring is an on-going process. Sub -Recipients shall be required to participate in desk top monitoring as determined by the Division. This contact shall provide an opportunity to identify the need 129 for technical assistance (TA) and/or a site visit if the Division determines that a Sub -Recipient is having difficulty completing their project. As difficulties/deficiencies are identified, the respective region or sponsoring agency shall be notified by the program office via email. Information shall include the grant Sub -Recipient agency name, year and project description and the nature of the issue in question. Many of the issues that arise may be resolved at the regional or sponsoring agency level. Issues that require further TA shall be referred to the division for assistance. Examples of TA include but are not limited to: • Equipment selection or available vendors • Eligibility of items or services • Coordination and partnership with other agencies within or outside the region or discipline • Record Keeping • Reporting Requirements • Documentation in support of a Request for Reimbursement On-site monitoring shall be conducted by the Division or designated personnel. On-site monitoring visits shall be scheduled in advance with the Sub -Recipient agency POC designated in the grant agreement. The Division shall also conduct coordinated financial and grant file monitoring. Subject matter experts from other agencies within the region or state may be called upon to assist in the form of a peer review as needed. On -Site Monitorinq Protocol On-site monitoring visits shall begin with those grantees that are currently spending or have completed spending for that federal fiscal year (FFY). Site visits may be combined when geographically convenient. There is a financial/ programmatic On-site monitoring checklist to assist in the completion of all required tasks. Site Visit Preparation A letter shall be sent to the Sub -Recipient agency Point of Contact (POC) outlining the date, time and purpose of the site visit before the planned arrival date. The appointment shall be confirmed with the grantee in writing (email is acceptable) and documented in the grantee folder. The physical location of any equipment located at an alternate site should be confirmed with a representative from that location and the address should be documented in the grantee folder before the site visit. On -Site Monitoring Visit Once Division personnel have arrived at the site, an orientation conference shall be conducted. During this time, the purpose of the site visit and the items the Division intends to examine shall be identified. All objectives of the site visit shall be explained during this time. Division personnel shall review all files and supporting documentation. Once the supporting documentation has been reviewed, a tour/visual/spot inspection of equipment shall be conducted. Each item selected for review shall be visually inspected whenever possible. Larger items (computers, response vehicles, etc.) shall have an asset decal (information/serial number) placed in a prominent location on each piece of equipment as per Sub -Recipient agency requirements. The serial number shall correspond with the appropriate receipt to confirm purchase. Photographs shall be taken of the equipment (large capital expenditures in excess of $1,000. per item). If an item is not available (being used during time of the site visit), the appropriate documentation shall be provided to account for that particular piece of equipment. Other programmatic issues can be discussed 67 130 at this time, such as missing quarterly reports, payment voucher/reimbursement, equipment, questions, etc. Post Monitorinq Visit Division personnel shall review the On-site monitoring worksheets and backup documentation as a team and discuss the events of the On-site monitoring. Within forty-five (45) calendar days of the site visit, a post monitoring letter shall be generated and sent to the grantee explaining any issues and corrective actions required or commendations. Should issues or findings be identified, a noncompliance letter to that effect shall be generated and sent to the Sub - Recipient. The Sub -Recipient shall submit a Corrective Action Plan (CAP) within a timeframe as determined by the Division. Noncompliance on behalf of sub -grantees is resolved by management under the terms of the Sub -Grant Agreement. The On-site monitoring report and all back up documentation shall then be included in the Sub -Recipient's file. Monitoring Responsibilities of Pass-thru Entities Sub -Recipients who are pass-through entities are responsible for monitoring their Sub -Recipients in a manner consistent with the terms of the Federal award at 2 C.F.R. Part 200, including 2 C.F.R. § 200.332. This includes the pass-through entity's responsibility to monitor the activities of the Sub - Recipient as necessary to ensure that the subaward is used for authorized purposes, in compliance with federal statutes, regulations, and the terms and conditions of the subaward; and that subaward performance goals are achieved. Sub -Recipient responsibilities also include but are not limited to: accounting of receipts and expenditures, cash management, maintaining adequate financial records, reporting and refunding expenditures disallowed by audits, monitoring if acting as a pass-through entity, other assessments and reviews, and ensuring overall compliance with the terms and conditions of the award or subaward, as applicable, including the terms of 2 C.F.R. Part 200. [Remainder of page intentionally left blank] ATTACHMENT K EHP GUIDELINES ENVIRONMENTAL PLANNING & HISTORIC PRESERVATION (EHP) COMPLIANCE GUIDELINES As a federal agency, FEMA is required to consider the effects of its actions on the environment and/or historic properties to ensure that all activities and programs funded by the agency, including grants - funded projects, comply with federal EHP regulations, laws and Executive Orders as applicable. Sub - Recipient's proposing projects that have the potential to impact the environment, including but not limited to construction of communication towers, modification or renovation of existing buildings, structures and facilities, or new construction including replacement of facilities, must participate in the FEMA EHP review process. The EHP review process involves the submission of a detailed project description that explains the goals and objectives of the proposed project along with supporting documentation so that FEMA may determine whether the proposed project has the potential to impact environmental resources and/or historic properties. In some cases, FEMA also is required to consult with other regulatory agencies and the public in order to complete the review process. The EHP review process must be completed and approved before funds are released to carry out the proposed project. FEMA will not fund projects that are initiated without the required EHP review. WE 131 Additionally, all Sub -Recipients are required to comply with DHS/FEMA EHP Policy Guidance, FEMA Policy #108-023-1. Some training and exercise activities require Environmental and Historic Preservation (EHP) Review, including exercises, drills or trainings that require any type of land, water, or vegetation disturbance or building of temporary structures or that are not located at facilities designed to conduct training and exercises. A thorough, detailed description of projects listed under these categories shall be required in order to determine allowability. Additional information on training requirements and EHP review can be found online at Environmental & Historic Preservation Guidance for FEMA Grant Applications FEMA.gov. Once the grant agreement has been executed by both parties the EHP Screening Form shall be submitted to the Division within forty-five (45) days. EHP SCREENING FORM SUBMISSION For projects requiring EHP review, the Sub -Recipient shall submit the EHP Screening Form to the State Administrative Agency (SAA) for review prior to funds being expended. The SAA Point of Contact for EHP review is: Mr. Terence Blakely Bureau of Preparedness Grants — EMPG Programmatic Manager 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Telephone: 850-815-4367 Terence. Blakely(cD_em.myflorida.com The SAA POC shall forward EHP Screening Forms to DHS/FEMA for review and approval. III. Sub -Recipient's shall receive written approval from the SAA prior to the use of grant funds for project implementation. THE PROJECT SHALL NOT BEGIN UNTIL FINAL FEMA APPROVAL IS RECEIVED. .' 132 ATTACHMENT L REIMBURSEMENT CHECKLIST PLANNING 1. Does the amount billed by consultant add up correctly? ❑ 2. Has all appropriate documentation to denote hours worked been properly signed? ❑ 3. Have copies of all planning materials and work product (e.g. meeting documents, copies of plans) been included? (Note - If a meeting was held by Sub -Recipient or contractor/consultant of Sub - Recipient, an agenda and signup sheet with meeting date El 4. Has proof of payment been included? Canceled check, or bank statement or transaction history (Showing the transaction was processed by the bank) Electronic Funds Transfer (EFT) Confirmation Credit Card Statement or payment to credit card company for that statement ❑ 5. Has Attachment G (found within Agreement with FDEM) been completed for this contractor/consultant and included in the reimbursement package? 6. Has proof of purchase methodology been included? Sole Source (approved by FDEM for purchases) State Contract (page showing contract #, price list) Competitive bid results (e.g. Quotewire, bid tabulation page) Consultants/Contractors (Note: this applies to contractors also billed under Organization) TRAINING 1. Is the course DHS approved? 2. Is there a course or catalog number? ❑ 3. If not, has FDEM approved the non -DHS training? ❑ 4. Have Sign -In Sheets, or signed rosters, preprinted, been provided? ❑ 5. If billing for overtime and/or backfill, has documentation been provided that lists attendee names, department, # of hours spent at training, hourly rate and total amount paid to each attendee? Have documentation from entity's financial system been provided as proof attendees were paid? For backfill, has a clear delineation/cross reference been provided showing who was backfilling who? ❑ 6. Have the names on the sign -in sheets been cross-referenced with the names of the individuals for whom training reimbursement costs are being sought? ❑ 7. Have any expenditures occurred in support of the training such as printing costs, costs related to administering the training, planning, scheduling, facilities, materials and supplies, reproduction of materials, and equipment? If so, receipts and proof of payment shall be submitted. Canceled check, or bank statement or transaction history (Showing the transaction was processed by the bank) Electronic Funds Transfer (EFT) Confirmation Credit Card Statement or payment to credit card company for that statement ❑ 8. Has proof of purchase methodology been included?. Sole Source (approved by FDEM for purchases) 70 133 State Contract (page showing contract #, price list) Competitive bid results (e.g. Quotewire, bid tabulation page) FXFRCISF ❑ 1. Has documentation been provided on the purpose/objectives of the exercise? Situation Manual or Exercise Plan After -action report Sign -in sheets or preprinted roster ❑ 2. If billing for overtime and backfill, has a spreadsheet been provided that lists attendee names, department, # of hours spent at exercise, hourly rate and total paid to each attendee? Have documentation from entity's financial system been provided to prove attendees were paid? For backfill, has a clear delineation/cross reference been provided showing who was backfilling who? 3. Have the names on the sign -in sheets been cross-referenced with the names of the individuals for whom exercise reimbursement costs are being sought? ❑ 4. Have any expenditures occurred on supplies (e.g., copying paper, gloves, tape, etc) in support of the exercise? If so, receipts and proof of payment shall be included. Canceled check or Bank statement or transaction history (Showing the transaction was processed by the bank) Electronic Funds Transfer (EFT) Confirmation Credit Card Statement or payment to credit card company for that statement ❑ 5. Have any expenditures occurred on rental of space/locations for exercises planning and conduct, exercise signs, badges, etc.? If so, receipts and proof of payment shall be included. Canceled check or bank statement or transaction history (Showing the transaction was processed by the bank) Electronic Funds Transfer (EFT) Confirmation Credit Card Statement or payment to credit card company for that statement 7. Has proof of purchase methodology been included? Sole Source (approved by FDEM for purchases) State Contract (page showing contract #, price list) Competitive bid results (e.g. Quotewire, bid tabulation page) EQUIPMENT ❑ 1. Has the zero dollar invoice and signed from the consultant/contractor been include? 2. Has an AEL # been identified for each purchase? ❑ 3. If service/warranty expenses are listed, are they only for the performance period of the grant? ❑ 4. Has proof of payment been included? Canceled check, bank statement or transaction history (Showing the transaction was processed by the bank) Electronic Funds Transfer (EFT) Confirmation Credit Card Statement or payment to credit card company for that statement ❑ 5. If EHP form needed, has a copy of the approval DHS been included? ❑ 6. Has proof of purchase methodology been included? Sole Source (approved by FDEM for purchases) State Contract (page showing contract #, price list) 71 134 Competitive bid results (e.g. Quotewire, bid tabulation page) TRAVEL/CONFERENCES ❑ 1. Have all receipts been turned in, itemized and do the dates on the receipts match travel dates? Airplane receipts Proof of mileage (Google or Yahoo map printout or mileage log) Toll and/or Parking receipts Hotel receipts (is there a zero balance?) Car rental receipts Registration fee receipts Note: Make sure that meals paid for by conference are not included in per diem amount 2. If travel is a conference has the conference agenda been included? ❑ 3. Has proof of payment to traveler been included? Canceled check or bank statement or transaction history (Showing the transaction was processed by the bank Electronic Funds Transfer (EFT) Confirmation Credit Card Statement & payment to credit card company for that statement Copy of paycheck if reimbursed through payroll SALARY POSITIONS 1. Has a signed timesheet by employee and supervisor been included? Timesheet shall certify the hours and information presented as true and correct. 2. Has proof for time worked by the employee been included? Is time period summary included? Statement of Earnings Copy of Payroll Check Payroll Register For fusion center analysts, have the certification documents been provided to the Division to demonstrate compliance with training and experience standards? For fusion center analysts, has documentation of PPR submission via the annual Fusion Center Assessment been provided to the Division to demonstrate compliance with performance measurement requirements? ORGANIZATION ❑ 1. If billing for overtime and backfill, has a spreadsheet been provided that lists attendee names, department, # of hours spent at exercise, hourly rate and total paid to each attendee? Have documentation from entity's financial system been provided to prove attendees were paid? For backfill, has a clear delineation/cross reference been provided showing who was backfilling who? For Contract Security has time & effort documentation been submitted? Is a time period summary included? (Signed & certified timesheets reflecting the name and number of hours spent) *A signed contract between subrecipient and vendor shall be provided that outlines the agreement — number of officers, hourly rate, frequency, price, etc...) Please note: FDEM reserves the right to update this checklist throughout the life of the grant to ensure compliance with applicable federal and state rules and regulations. 72 135 ATTACHMENT M FOREIGN COUNTRY OF CONCERN AFFIDAVIT — PERSONAL IDENTIFYING INFORMATION CONTRACT Section 287.138, Florida Statutes, prohibits a Florida "Governmental entity"2 from entering into or extending contracts with any other entity whereby such a contract, or extension thereof, could grant the other entity access to an individual's personal identifying information if that entity is associated with a "Foreign Country of Concern." 3 Specifically, section 287.138(2), Florida Statutes, prohibits such contracts with any entity that is owned by the government of a Foreign Country of Concern, any entity in which the government of a Foreign Country of Concern has a "controlling interest, 114 and any entity organized under the laws of or which has its principal place of business in a Foreign Country of Concern. As the person authorized to sign on behalf of Respondent, I hereby attest that the company identified above in the section entitled "Respondent Vendor Name" is not an entity owned by the government of a Foreign Country of Concern, no government of a Foreign Country of Concern has a controlling interest in the entity, and the entity has not been organized under the laws of or has its principal place of business in a Foreign Country of Concern. I understand that pursuant to section 287.138, Florida Statutes, I am submitting this affidavit under penalty of perjury. Respondent Vendor Name: Vendor FEIN: Vendor's Authorized Representative Name and Title: Address: City: State: Phone Number: Email Address: Certified By: AUTHORIZED SIGNATURE Print Name and Title: Date: 2 As defined in Section 287.138 (1)(d), Florida Statutes. 3 As defined in Section 287.138 (1)(c), Florida Statutes. 4 As defined in Section 287.138 (1)(a), Florida Statutes. 73 Zip: 136 RAN INDIAN RIVER COUNTY, FLORIDA CONSENT AGENDA ITEM BCC 3 0 3 Deputy County Administrator Sandridge Golf Date: October 17, 2023 To: The Honorable Board of County Commissioners Thru: John Titkanich, Jr., County Administrator From: Michael C. Zito, Deputy County Administrator Subject: Second Amendment for Sandridge Golf Club Maintenance BACKGROUND: International Golf Maintenance (IGM) has been providing course maintenance services at Sandridge Golf Club since 1996. The current contract with IGM was approved by the Board on July 7, 2020, and began on October 1, 2020. It has a term of 5 years with two five-year renewals available dependent upon vendor performance. IGM has been outstanding in their efforts to create better golf course conditions year after year through their maintenance practices and has been an integral part of the success of Sandridge Golf Club. Over the past three years, the golf course has encountered a substantial increase in rounds played with a record number of rounds in the 2022-23 fiscal year of over 124,000 rounds. Over the past twelve months, labor, equipment and general supplies have increased substantially. In April 2022, due to the increase of fertilizer, equipment and fuel costs, IGM submitted a request for a discretionary price adjustment due to these unforeseen costs of 15% and Staff negotiated with IGM a 9.5% increase for fiscal year 2022/2023, for a total contract cost of $1,337,331.00. IGM has submitted a request for the 2023-24 fiscal year of 8% and Staff has negotiated with IGM a 6.5% for fiscal year 2023/24 for a total cost of $1,424,257.52. This is an increase of $86,926.52 annually, or $7,243.88 per month. Course conditions remain a significant factor the golfer considers when they choose a course to play. In order to provide the patrons of Sandridge Golf Club the same service and conditions of the golf course, Staff recommends the approval of the price increase through the attached Second Amendment to Agreement for Sandridge Golf Club Maintenance. FUNDING: Funds, in the amount of $1,424,257.52, are budgeted and available in the Sandridge/Golf Maintenance/Other Contractual Services account, number 41822172-033490. Description I Account Number IAmount Sandridge/Golf Maintenance/Other Contractual Services 41822172-033490 1 $1,424,257.52 C:\Granicus\Legistar5\L5\Temp\79bade I f-7ec6-455c-9657-fbd1753 ea4fe.&cx 137 RECOMMENDATION: Staff respectfully requests that the Board of County Commissioners approve the First Amendment to International Golf Maintenance (IGM) agreement and authorize Chairman to sign. ATTACIIEMENTS: 1. IGM Agreement For Sandridge Golf Club Maintenance (effective Oct. 1, 2020) 2. IGM's Request for Maintenance Fee Increase (Letter dated 4/15/2022) 3. IGM's Request For Maintenance Fee Increase (Letter dated 04/11/2023) 4. First Amendment to Agreement for Sandridge Golf Club Maintenance 5. Second Amendment to Agreement for Sandridge Golf Club Maintenance APPROVED AGENDA ITEM FOR October 31, 2023 C:\Granicus\Legistar5\L5\Temp\79bade 1 f-7ec6-455c-9657-fbd1 753ea4fe.docx 138 Agreement for Sandridge Golf Club Maintenance Agreement THIS MAINTENANCE AGREEMENT ("Agreement") is by and between INDIAN RIVER CDIX.TY, a Political Subdivision of the State of Florida organized and existing under the Laws ofthe Stale ofl Rad,1K (hereinafter called OWNER) and International Golf Maintenance Inc. (hereinafter called CONTRAC",. OWNER and CONTRACTOR, in consideration of the mutual cnrenert s hereinafter set forth, agree as follows: ARTICLE 1 WORK CONTRACTOR shall complete all Work as specified or indicated in the Contract Document, generally described as agronomic; horticultural and recurring services ("Services") for Sandridge Golf Club ("Club"), located at 5300 73rd Street, Vero Beach, Florida. Services will be provided as detailed in Request for Proposals (RFP) 2020034 and Contractor's response to the RFP. ARTICLE 2 -TERM This,Agreement shall be effective for a period of five years from the Effective Date (October 1r Q20), unless earlier terminated as provided here)n. OWNER shall have the option to renew this agreement for two additional five year terms, based on`Contractor concurrence and determination that renewal is in the best interest of the OWNER. ARTICLE -.PAYMENT Owner shall make monthly payments, equal to one twelfth of the_woual total price, on the last Friday of each month. Year 1 total contract price$1,1,1111%722.50 Year 2 total contract price $ 1,nL7.23 Year 3 total contract price $ 1.ML45230 Year 4 total contract price $ Year 5 total contract price $1,347' S2 All payments for services shall be made to the CONTRACTOR by the COUNTY in accordance with the L+ial Government Prompt Payment Act, as maybe amended from time to time (Section 218.70,C4orida motes, et seq.). Any payment, however, final or otherwise, shall not release tw CONTRACTOR or #s sureties from any obligations under this Agreement, the RFP, or the Public Construction Bond. ARTICLE 4 CONTRACT PRICE ADJUSTMENT The Contractor may request an annual rate adjustment in writing to the Cou*,Ao laet+er than June 1 of the year in which Contractor would like the rate adjustmeritto go intoeftt..Buh rate adjustments am subject to approval by the Board of irft-,Commissioners. if approved, the rate adjustment would become effective October 1 of that year. No adjustment will be considered prior to 202-5, . The rate of adjustment shall be based on 75 -percent of the change in the iC,o� Pride !hear ( between the month of April in the prior year (CPI1) and the month of April Iii Ow eurrent?W, The CPI shall be the South Urban Region, All Items, Ur'I n Wage � apd Clerical yil a' published by the United hates Department;of Labor, Department of LaborSitatistics (Series tp; CWURD300SAO). The tatal rate adjustment is rourtded.to the n`eares#.hundredth; of a percent n i n given year shall not exceed three per (%;0%) of ft previous rate, 1 139 Agreement for Sandridge Golf Club Maintenance FORMULA FOR CALCULATING ANNUAL RATE ADJUSTMENT Annual Adjustment (as a Percentage) AA = (((CPI2 - CP11) / CP11) * 0.75)); New Rate = Round ((Current Rate + AA*Current Rate), 2) When there is a CPI decrease, the County may request a commensurate decrease in the same manner. ARTICLES - INDEMNIFICATION CONTRACTOR shall indemnify and hold harmless the OWNER, and its 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 CONTRACTOR and persons employed or utilized by the CONTRACTOR in the performance of the Work. ARTICLE 6 — INSURANCE CONTRACTOR shall not commence work until they have obtained all the insurance required under this section, and until such insurance has been approved by the OWNER. CONTRACTOR's insurance shall be primary. OWNER shall be named as an additional insured for both General Liability and Automobile Liability. CONTRACTOR shall maintain the following limits of insurance during the term duration of this agreement. General Liability Each Occurrence $500,000 Fire Damage -any one fire $50,000 Medical Expenses -any one person $5,000 Personal and Advertising Injury $500,000 General Aggregate $500,000 Combined Single Limit $500,000 Automobile Liability — Combined Single Limit $500,000 Worker's Compensation as required by the State of Florida Each accident $100,000 Each Disease — Each employee $100,000 Each disease — policy limit $500,000 The policy shall cover the CONTRACTOR, all employees, and/or volunteers, and all independent contractors, subcontractors and professional contractual persons hired or retained by CONTRACTOR. All above insurance policies shall be placed with insurers with a Best's rating of no less than A -VII. The insurer chosen shall also be licensed to do business in Florida. The insurance policies procured shall be "Claims Made" policies or as generally available on the open insurance market. The Insurance Carriers shall supply Certificates of Insurance evidencing such coverage to the OWNER's Management Department prior to the execution of this Agreement. The insurance companies selected shall send written verification to the OWNER's Risk Management Department that they will provide 30 days written notice to OWNER's Department of Risk Management of its intent to cancel or terminate. 140 Agreement for Sandridge Golf Club Maintenance ARTICLE 7 - CONTRACTOR'S REPRESENTATIONS CONTRACTOR makes the following representations: A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related data identified in the Request for Proposal documents. B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. CONTRACTOR has given OWNER written notice of all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof by OWNER is acceptable to CONTRACTOR. E. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. ARTICLE 8 - CONTRACT DOCUMENTS The Contract Documents consist of the following: (1) This Agreement (pages 1 to 7, inclusive); (2) Public Construction Bond (pages 40 to 42, inclusive); (3) Certificate(s) of Liability Insurance (4) Request for Proposals 2020034 (5) Addenda (numbers 1 to 2, inclusive); (6) CONTRACTOR'S Submitted Proposal (pages 1 to 61, inclusive); (7) Drug Free Workplace Form (pages 31 to 31, inclusive) (8) Sworn Statement UnderSection 105.08, Indian River County Code, on Disclosure of Relationships (pages 27 to 28, inclusive); (9) Certification Regarding Prohibition Against Contracting with Scrutinized Companies (10) Certification Regarding Lobbying (11) The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a) Written Amendments; 3 141 Agreement for Sandridge Golf Club Maintenance b) Work Change Directives; c) Change Order(s). ARTICLE 9 - MISCELLANEOUS 9.01 Terms Terms used in this Agreement will have the meanings indicated in the Request for Proposals. 9.02 Assignment of Contract No assignment by a party hereto of any rights under or interests in the Agreement will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 9.03 Successors and Assigns OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 9.04 Severability Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 9.05 Venue This Agreement shall be governed by 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 a federal jurisdiction, in the United States District Court for the Southern District of Florida. 9.06 Public Records Compliance A. Indian River County is a public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall: (1) Keep and maintain public records required by the County to perform the service. (2) Upon request from the County's Custodian of Public Records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of 142 Agreement for Sandridge Golf Club Maintenance: the contract term and following completion aft r84 if the contra +cWdoes mottransfer the records to the County. (4) Upon completion of the contract, transfer, at no cam, to the Dau* all public records in possession of the Contrioictor or keep and maintain public,.ftewds required. by the County to perform the service. If the Contractor transfers all public rev ".Wthe County Upon completion of the contract, the Contractor shall destroy, any duplicate public records that are exempt or confidential and exempt hom public records disclosure requirements. Ifecontractor keeps and maintains public records upon completion of the contra4 the Contras i meet all,applicable requirements for retaihk% public. rero*; AM reords stood eleworticelly M.9 be provides to the County, upon request from the Custodian of Public 0twords, in a format that is compatible with the information technology systems of the County. B. IF THE CO111TRACrOR HAS QUWT REGARDING THE .APPI TIOIII OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOWS► DUTtit TO PROVIDE PUBLIC RECORDS RELATING TI'S THISr ONTRA T, CWTACT THE CUSTODIAN OF PUBLIC WWRDS AT ggblicMrds@ircgov.com Indian River County Office of the County Attorney 180127th Street Vero Beach, FL 32960 C. Failure of the Contractor to comply with these requirements shall be a material breach dfis Agreement. Article 10-TERMINATIQN OFtANTRACT A. The occurrence of anyal the following shall constitute a deftult by CONTRACTM-and ft#PMYWe the OWNER with aright to terminate thh L patract in accordance with tJ*Arl e;:In- ri to pursuing any other remedies which the OWNER may have under this taontract or under law: (1) if in the OWNER's opinion CONTRACTQR.isimproperly pe0koWng work or violating a1* pro*,ion(s( of the Contract Documents; (2) if CONTRACTOR neglects or refuses to correct defective work or replace defective parts or equipment, as directed by the iCounty's Wesena.U" pursuant to an lriopoctb (3) if In the OWNER's opinion # N'T ► 's Wit i5 being unnecessary delayed and will not be finished within the prescribed ttf (4) ' if CONTRACTOR assigns this Cidnt or any kyr or appre ed thereon; or (S) if CONTRACTOR abandons the work, is adjudged bankrupt, or if he makes a So' W assign exit for the benefit of his t sli m Or if a trustee r % W. for CONTRACTOR or for any of his property. Ilse OWNER shall, before triinating the Contract for any of the foregoing reasons, notif}� CONTRACTOR In writing of the grounds for termination and provide CONTRACTOR with ten (10) calendar days to cure the default to the reasonable satisfaction of the ow"M 5 143 Agreement for Sandridge Golf Club Maintenance C. If the CONTRACTOR fails to carr.0 t or cure withinft, fte provided in the preceding Sub-Afficle B, OWNER may terminate this Contractby noft-ing COWRACTOR`in writing. Upon receivingsuch notification, CONTRACTOR shag Immediately all work hwaunder *W.shall for%'it any further right to possess or occupy the site or any materials thereon, pmvkf*4 however, thAlhe _OWNER may authorize CONTRACTOR to restore any work sites. D. The CONTRACTOR shall be liable for: (1) any new cost incurred by the OWNER In sollrg bids or proposals for and letting a new contract; and (2) the difference between the cost of tx ieftthe new aomad wW tie.cog of oeti this Contract; (3) any court costs and attorney's fees associated with any lawstdt undertaken by OWNER ie enforce its rights herein. E. The OWNER shall pay CONTRACTOR for all work satisfactorily completed prior to the effective date of termination. F. TERMINATION FOR CONVENIENCE: OWNER may ;at ,±atty 1e Riad for Orly reason terminate CONTRACTOR's senAces and work for OWNER's convenience. Upon receiprof notice Of -such termination CONTRACTOR shall, unless the notice directs otherwise, immediately disft0nue the work and immediately cease ordering of any matierals, labor, equipment, facilites, or supplies in connection with the performance of thfs Contra& Upon such termination Cos actor shall be entitled to payment only as follows: (1) the actual cost of the work completed In tinformity wA..Oft QxWtadtine specifications; plus, (2) such other costs actually incurred by CONTRACTOR as are. permitted bY' prime contract and approved by the OWNER. Contractor shall not be entitled to any other claim for, compensation or damages against the County in the event of such termination. G. TERMINIATION 1N REGARDS TO F.S. 2$7.135: Tli i -TION IN REGARDS TCl ;FSS. W.M— CONTRACTOR certifies that It those related entities tiif CONTRACTOR as defined by Flora law are not on the Scrutinized Companies that Boycott Israel List, created pursuant to s, 215.4725 of the Florida Statutes, and are not engaged in a boycott of Israel. in addition, ifth%s agreement is for goods or services of one million dollars or more, CONTRACW certiftes that It and goose related entities of Ct31VTRACTOR as defined by FliorJOS law are rot on theSautird ed maples with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Peralleurn Energy Sector List, created pursuant to Section 235;473 of the Florida Statutes and'tire Clot engaged in business operations in Cuba or Syriay OWNER may terminate this Contract if CONTRACTOR is fowdto hoe $06TWO oid a false certification as provided under semen 287.1`$0, F4orida Statutes,. been plaosd an titins 'Scrutinized Companies with Activities in Sudan List orthe Scrutinized Companies withAdVogtftlo the Iran Petroleum Energy Sector List, or been engaged in business operations in C" �w +t, as defined by section 287.135, Florida Statute OWNER may terminate this Contract if CONTRACT00,'inmlta fft all wholly owned subsidiaries, majority-owned subsidiaries, and parent companies Drat exist for the purpose of making profit,,is found to have been placed on the Scrutinized Companies that B ricott Israel List or IsRngaged th a boycott of Israel asset forth in section 21S,�-Fiorida Statutes. 6 144 Agreement for Sandridge Golf Club Maint. IN WITNESS WHEREOF, OWNER and CTR have signed this Agreement In.duplicate: One counterpart each has been delivered toOWMERindCONTRACTOR, All portionsof the COntractDocurnents have been signed or identified by OWNER ems! C-0MMCTO R or On their behalf. This Agreement was approved on lulu 7.,W201 with an effective date ofUcUlbeT 1, 2020. INDIAN RIVER COUNTY Attest: Deputy Clerk (SEAL) Designated Representative: Name: Bela NagV Title: Director 6f Golf Address: 5300 731 Street, Vero Beach, FL Phone: 772-770-5003 Email: bnagy@ircgov.com 7 145 71912n Detail by Entity Name Detail by Entity Name Foreign Profit Corporation INTERNATIONAL GOLF MAINTENANCE, INC. fling Information Document Number F98000000631 FEI/EIN Number 59-3489578 Date Filed 02/03/1998 State DE Status ACTIVE Last Event CORPORATE MERGER Event Date Filed 02/13/1998 Event Effective Date NONE Principal Address 5385 GATEWAY BLVD SUITE 12 LAKELAND, FL 33811 Changed: 04/18/2016 Mailing Address 5385 GATEWAY BLVD SUITE 12 LAKELAND, FL 33811 Changed: 04/18/2016 Registered Agent Name & Address CORPORATION SERVICE COMPANY 1201 HAYS STREET TALLAHASSEE, FL 323012525 Officer/Director Detail Name & Address Title CFO BURK, K ERIC 5385 GATEWAY BLVD SUITE 12 LAKELAND, FL 33811 search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetaiI?inquirytype=EntityName&directionType=1 nitiai&searchNameOrder-INTER146ONA April 15, 2022 Bela Nagy Director of Golf Sandridge Golf Club 5300 73rd Street Vero Beach, Florida 32967 Dear Bela: International Golf Maintenance, Inc. 5385 Gateway Boulevard, Suite 12 • Lakeland, Florida 33811 (800) 413-5500 • (407) 589-7200 • Fax: (407) 589-7216 www.golfmaintenance.com International Golf Maintenance, Inc. (IGM) is proud to be an integral part of the success of Sandridge Golf Club. Over the last eighteen months, we have witnessed remarkable growth in golf participation, but we have also encountered substantial increases in golf course maintenance costs. Labor, equipment and general supply price increases have outpaced our contract increase of 1% per year, and fertilizer, equipment and fuel costs have increased dramatically. These cost increases could not have been anticipated when we provided our proposal in 2020. We have attached new cost forms showing the original contract amounts and the FY 2023 adjusted amounts based on the rising costs and increased fertility requirements due to the higher number of golf rounds. We understand our Agreement does not allow for a Price Adjustment prior to 2025, but these increases are unprecedented. We would like to formally request a price adjustment due to these unforeseen circumstances. Course conditions remain a significant factor golfers consider when they choose a course to play, so we would like to address the uncontrollable cost increases in order to provide the same service and conditioning the Sandridge players have come to expect. Please let us know if this is possible within the confines of our Agreement. Best Regards, ..! ; 1 4;0� A50Z Steve Gano Vice President of Operations 147 April 11, 2023 Bela Nagy Director of Golf Sandridge Golf Club 5300 73rd Street Vero Beach, Florida 32967 Dear Bela: International Golf Maintenance, Inc. 5385 Gateway Boulevard, Suite 12 • Lakeland, Florida 33811 (800) 413-5500 . (407) 589-7200 • Fax: (407) 589-7216 www.ito lfmainterka n c e. c o m We have had another great year at Sandridge Golf Club, and the course has remained in excellent condition. On June 8, 2022 when we met with Mr. Mike Zito, we discussed the unprecedented escalation of costs we had encountered in materials, equipment and labor. At the time, we requested a 15% price increase to cover those expenses. At the conclusion of the meeting, we agreed to battle through FY 23 with an 8% increase and agreed to revisit another unscheduled increase for FY 24. We would like to formally request an additional 8% increase including the other 7% from last year's request combined with the 1% increase previously outlined in the Agreement. The proposed cost for FY 24 is $1,445,254. As always, we are grateful for your continued business and look forward to maintaining the course at the same level of conditioning the Sandridge players have come to expect. Best Regards, Steve Gano Vice President of Operations FIRST AMENDMENT TO AGREEMENT FOR SANDRIDGE GOLF CLUB MAINTENANCE THIS FIRST AMENDMENT TO AGREEMENT FOR SANDRIDGE GOLF CLUB MAINTENANCE ("Amendment") is entered into as of the 16 day of August 2022 by and between Indian River County, a political subdivision of the State of Florida, whose address is 1801 27`h Street, Vero Beach, Florida, 32960 ("OWNER"), and International Golf Maintenance, Inc., a Delaware corporation, whose address is 5385 Gateway Boulevard, Suite 12, Lakeland, FL, 33811 ("CONTRACTOR"). RECITALS WHEREAS, OWNER and CONTRACTOR entered into the Agreement for Sandridge Golf Club Maintenance, effective October 1, 2020, (the "Agreement"); and WHEREAS, the Agreement states that there are no price adjustments prior to 2025; and WHEREAS, due to the current levels of inflation OWNER and CONTRACTOR are agreeable to allowing for a one time increase in price and moving up the contract price adjustment time limitation; and WHEREAS, OWNER and CONTRACTOR are agreeable to updating the Agreement to reflect the State of Florida E -Verify requirements; 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. Amendment of Article 3 (Payment). The chart set forth in Article 3 (Payment) of the Agreement is amended to read as follows: Year 1 total contract price $ 1,188,722.50 Year 2 total contract price $ 1,221,307.23 Year$ total contract price $ 1,337,331.42 3. Amendment of Article 4 (Contract Price Adjustment). The last sentence of first paragraph of Article 4 shall be amended to read as follows: No adjustment will be considered prior to 2023. 4. Amendment of Article 9 (Miscellaneous). A new 9.07 is added to Article 9 (Miscellaneous) of the Agreement as follows: Page I of 2 149 9.07. E -Verify CONTRACTOR is registered with and will use the Department of Homeland Security's E - Verify system (www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for the duration of this agreement, as required by Section 448.095, F.S. CONTRACTOR is also responsible for obtaining proof of E -Verify registration and utilization for all subcontractors utilized in the provision of service to OWNER. 5. All other provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Amendment in duplicate. One counterpart each has been delivered to OWNER and CONTRACTOR. This Amendment was approved on August 16, 2022 with an effective date of OWNER: INDIAN RIVER COUNTY By: PeJsyD.O'Bryan, man By: - - �-- oQQ= (Contractor) By: " (C RATE SEAL) Jason . Br wn, County Administrator Attest APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: Dy an Reingold, County Attorney Jeffrey R. Smith, Clerk of Court and Comptroller Attest: Deputy Clerk (SEAL) Address forgiving notices: 2 ('Z 381 Zz� v License No. (Where applicable//) Agent for service of process: e �C vt16 IWq�N�'% a•''o�p w�►r�''• Fy': x� 'Go gEA1' m= Page 2 oft 150 SECOND AMENDMENT TO AGREEMENT FOR SANDRIDGE GOLF CLUB MAINTENANCE THIS SECOND AMENDMENT TO AGREEMENT FOR SANDRIDGE GOLF CLUB MAINTENANCE ("Amendment") is entered into as of the day of 2023 by and between Indian River County, a political subdivision of the State of Florida, whose address is 180127 1h Street, Vero Beach, Florida, 32960 ("OWNER"), and International Golf Maintenance, Inc., a Delaware corporation, whose address is 5385 Gateway Boulevard, Suite 12, Lakeland, FL, 33811 ("CONTRACTOR"). RECITALS WHEREAS, OWNER and CONTRACTOR entered into the Agreement for Sandridge Golf Club Maintenance, effective October 1, 2020, (the "Agreement"); and WHEREAS, the Agreement states that there are no price adjustments prior to 2025; and WHEREAS, due to the levels of inflation OWNER and CONTRACTOR agreed to allow for an increase in price and moved up the contract price adjustment time limitation in fiscal year 2022-23; and WHEREAS, OWNER and CONTRACTOR are agreeable to updating the Agreement to reflect the State of Florida E -Verify requirements; WHEREAS, due to the current levels of inflation OWNER and CONTRACTOR are agreeable to allowing for an increase in price for fiscal year 2023-24; 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. Amendment of Article 3 (Payment). The chart set forth in Article 3 (Payment) of the Agreement is amended to read as follows: Year 1 total contract price $ 1,188,722.50 Year 2 total contract price $ 1,221,307.23 Year 3 total contract price $ 1,337,331.42 Year 4 total contract price $1,424,257.52 Year 5 total contract price $1,438,500.10 3. Amendment of Article 4 (Contract Price Adjustment). The last sentence of first paragraph of Article 4 shall be amended to read as follows: No adjustment will be considered prior to 2023. 4. Amendment of Article 9 (Miscellaneous). A new 9.07 is added to Article 9 (Miscellaneous) of the Agreement as follows: 151 By: 9.07. E -Verify CONTRACTOR is registered with and will use the Department of Homeland Security's E - Verify system (www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for the duration of this agreement, as required by Section 448.095, F.S. CONTRACTOR is also responsible for obtaining proof of E -Verify registration and utilization for all subcontractors utilized in the provision of service to OWNER. 5. All other provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Amendment in duplicate. One counterpart each has been delivered to OWNER and CONTRACTOR. This Amendment was approved on with an effective date of OWNER: CONTRACTOR: INDIAN RIVER COUNTY Joseph H. Earman, Chairman By: John A. Titkanich, Jr., County Administrator APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: William K. Debraal, County Attorney Ryan L. Butler, Clerk of Court and Comptroller Attest: Deputy Clerk (SEAL) !ss By: Attest License No. (Contractor) (CORPORATE SEAL) Address for giving notices: (Where applicable) 152 INDIAN RIVER COUNTY, FLORIDA AGENDA ITEM Parks, Recreation & Conservation Conservation Division Date: October 12, 2023 To: The Honorable Board of County Commissioners Thru: John A. Titkanich, Jr., County Administrator Michael C. Zito, Deputy County Administrator Beth Powell, Parks, Recreation & Conservation Director From: Wendy Swindell, Conservation Lands Manager Subject: Florida Inland Navigation District Project Agreement for the Environmental Learning Center Dock Replacement Part 2, Project #IR -23-77 BACKGROUND: On May 18, 2021, the Board approved the third modification to the lease between the Environmental Learning Center (ELC) and Indian River County, and adopted Resolution 2021-036 for the purpose of applying for a grant to the Florida Inland Navigation District (FIND) in partnership with the ELC to replace the dock on the ELC campus (constructed in 1992). The approved project included a complete reconstruction of the existing dock in the same footprint as the current structure. In June 2021, County staff submitted a Waterways Assistance Program (WAP) grant application to FIND in partnership with the ELC. The application was accepted by FIND, and subsequently approved for funding. The grant agreement included an award of $100,000, to be matched with an equal cash match provided through private donations that have been raised, as well as cash in hand by the ELC. On December 7, 2021 the Board accepted the FIND Grant, and authorized the Chairman to execute the FIND Agreement IR -21-71. The County solicited bids for the construction of the project in June 2022. The bids received exceeded the project budget, and were subsequently rejected. In response to the funding shortfall, the ELC coordinated with FIND to solicit feedback on whether additional project funding would be feasible in the 2023 WAP cycle. Based on this coordination, the County applied for an additional $50,000 in project funding in the 2023 WAP funding cycle. The ELC has raised an additional $100,000 towards the construction of the project, bringing their contribution to $200,000. With the additional $50,000 from FIND, the sum of the ELC contribution and FIND funding will bring the project budget to a revised total of $350,000. A fourth modification to the lease agreement between the County and the ELC reflecting these changes was approved by the Board on December 13, 2022. In January 2023, the County solicited bids for the replacement of the ELC Dock. The project was awarded by the Board to Indian River Docks, LLC on March 28, 2023, in the amount of $331,456. The project was scheduled to be completed August 2023; thus, staff applied for an extension to the FIND Agreement to allow for unanticipated delays (due to the construction occurring during hurricane season). The extension was approved by FIND, and a project amendment was approved 153 CONSENT AGENDA BCC Meeting 10-31-2013 INDIAN RIVER COUNTY, FLORIDA AGENDA ITEM Parks, Recreation & Conservation Conservation Division Date: October 12, 2023 To: The Honorable Board of County Commissioners Thru: John A. Titkanich, Jr., County Administrator Michael C. Zito, Deputy County Administrator Beth Powell, Parks, Recreation & Conservation Director From: Wendy Swindell, Conservation Lands Manager Subject: Florida Inland Navigation District Project Agreement for the Environmental Learning Center Dock Replacement Part 2, Project #IR -23-77 BACKGROUND: On May 18, 2021, the Board approved the third modification to the lease between the Environmental Learning Center (ELC) and Indian River County, and adopted Resolution 2021-036 for the purpose of applying for a grant to the Florida Inland Navigation District (FIND) in partnership with the ELC to replace the dock on the ELC campus (constructed in 1992). The approved project included a complete reconstruction of the existing dock in the same footprint as the current structure. In June 2021, County staff submitted a Waterways Assistance Program (WAP) grant application to FIND in partnership with the ELC. The application was accepted by FIND, and subsequently approved for funding. The grant agreement included an award of $100,000, to be matched with an equal cash match provided through private donations that have been raised, as well as cash in hand by the ELC. On December 7, 2021 the Board accepted the FIND Grant, and authorized the Chairman to execute the FIND Agreement IR -21-71. The County solicited bids for the construction of the project in June 2022. The bids received exceeded the project budget, and were subsequently rejected. In response to the funding shortfall, the ELC coordinated with FIND to solicit feedback on whether additional project funding would be feasible in the 2023 WAP cycle. Based on this coordination, the County applied for an additional $50,000 in project funding in the 2023 WAP funding cycle. The ELC has raised an additional $100,000 towards the construction of the project, bringing their contribution to $200,000. With the additional $50,000 from FIND, the sum of the ELC contribution and FIND funding will bring the project budget to a revised total of $350,000. A fourth modification to the lease agreement between the County and the ELC reflecting these changes was approved by the Board on December 13, 2022. In January 2023, the County solicited bids for the replacement of the ELC Dock. The project was awarded by the Board to Indian River Docks, LLC on March 28, 2023, in the amount of $331,456. The project was scheduled to be completed August 2023; thus, staff applied for an extension to the FIND Agreement to allow for unanticipated delays (due to the construction occurring during hurricane season). The extension was approved by FIND, and a project amendment was approved 153 by the Board on August 15, 2023. This amendment extends the grant completion period through September 30, 2025. DESCRIPTION AND CONDITIONS: On October 6, 2023 staff received notification from FIND that the agreement for the additional $50,000 in funding was approved. The project agreement for Environmental Learning Center Dock Replacement Part 2, Project #IR -23-77, is included with this agenda item for consideration by the Board. FUNDING: The dock expenses are funded out of the Florida Boating Improvement Fund/FIND Grant/ELC Main Dock Replacement account number 13321072-066510-22013, with a total budget of $350,000. Revenue Source Account Number Amount FL Boating Improvement Fund/FIND Grant/ELC Main Dock Replacement 13321072-066510-22013 $350,000.00 RECOMMENDATION: Staff respectfully recommends the Board accept the Project Agreement for Environmental Learning Center Dock Replacement Part 2, Project #IR -23-77, and authorize the Chairman to execute the Agreement after review and approval by the County Attorney. ATTACHMENTS: • FIND Project Agreement Environmental Learning Center Dock Replacement Part 2, #IR - 23 -77 APPROVED AGENDA ITEM FOR OCTOBER 31, 2023 154 FLORIDA INLAND NAVIGATION DISTRICT PROJECT AGREEMENT PROJECT NO. IR723-77 This PROJECT AGREEMENT ("AGREEMENT") made and entered into this day of , 20 by and between the Florida Inland Navigation District (hereinafter the "DISTRICT"), and Indian River_Cou=, (hereinafter the "PROJECT SPONSOR"). In consideration of the mutual promises and covenants contained herein, the parties agree as follows: 1. PROJECT - Subject to the provisions of this AGREEMENT and Rule 66B-2 of the Florida Administrative Code (a current copy of which is attached as Exhibit "B"), the DISTRICT has approved assistance funding to the PROJECT SPONSOR in furtherance of an approved project ("PROJECT") consisting of the Environmental Learning enter Dock Replacement Part 2. Said PROJECT is more specifically described in the PROJECT SPONSOR'S Waterways Assistance Application, which is on file at the DISTRICT's headquarters. AM modifications to the PROJECT'S scope of work shall require written advance notice and Justification from the PROJECT SPONSOR and the prior written approval of the DISTRICT. 2. TERM - The PROJECT SPONSOR shall not commence work on the PROJECT prior to the execution of this AGREEMENT unless specifically authorized by the DISTRICT Board and shall complete the PROJECT and submit all required payment reimbursement information on or before September 30, 2025 ("PROJECT PERIOD"), unless the PROJECT PERIOD has been extended with the prior written approval of the DISTRICT. Any request for an extension of the PROJECT PERIOD shall require submittal by the PROJECT SPONSOR of a request for extension to the DISTRICT no later than 60 days prior to the original expiration date of the PROJECT PERIOD. This request will then be considered by the DISTRICT Board, whose decision shall be final. In no event other than a declared state of emergency that affects the project completion shall the PROJECT be extended beyond September 30, 2026. The PROJECT SPONSOR acknowledges this is the only provision to carry over the DISTRICT assistance funding under this AGREEMENT beyond September 30, 2025, and that any extension of funding beyond this date shall be at the sole discretion of the DISTRICT. 1 155 3. ASSISTANCE AMOUNT - The DISTRICT shall contribute ("ASSISTANCE AMOUNT") no more than fi yft percent50% ("MATCHING PERCENTAGE") of the PROJECT SPONSOR'S eligible out-of-pocket costs for completion of this PROJECT ("PROJECT AMOUNT"). Payment of funds by the DISTRICT to the PROJECT SPONSOR (the "ASSISTANCE AMOUNT") will be on a reimbursement basis only, and only for those authorized out of pocket costs as shown in Exhibit A, Project Cost Estimate ("PROJECT COSTS") and meeting the requirements of Section 5 below and shall not, in any event, exceed $ 50,000.00 Any modifications to the PROJECT's Cost Estimate (Exhibit A) shall require written advance notice and justification from the PROJECT SPONSOR and the prior written approval of the DISTRICT. 4. MATCHING FUNDS - The PROJECT SPONSOR warrants and represents that it has the PROJECT SPONSOR Match Amount (the PROJECT AMOUNT less the ASSISTANCE AMOUNT) available for the completion of the PROJECT and shall, prior to the execution of this AGREEMENT, have provided the DISTRICT with suitable evidence of the availability of such funds using the DISTRICT's Form #95-01 (Exhibit C, Matching Funds Certification) and, upon request, providing the DISTRICT with access to applicable books and records, financial statements, and bank statements. 5. PROJECT COSTS - To be eligible for reimbursement under this AGREEMENT, PROJECT COSTS must be necessary and reasonable for the effective and efficient accomplishment of the PROJECT and must be directly allocable thereto. PROJECT COSTS are generally described in Exhibit B, Chapter 66B-2, F.A.C.. PROJECT COSTS must be incurred, and work performed within the PROJECT PERIOD, with the exception of pre -AGREEMENT costs, if any, consistent with Section 6 below, which are also eligible for reimbursement by the DISTRICT. If the PROJECT SPONSOR receives additional funding for the PROJECT COSTS from another source that was not identified in the original application and that changes the AGREEMENT MATCHING PERCENTAGE, the PROJECT SPONSOR shall proportionately reimburse the DISTRICT's program funds equal to the MATCHING PERCENTAGE in this AGREEMENT. The PROJECT SPONSOR shall promptly notify the DISTRICT of any project payments it receives from a source other than the DISTRICT. 6. PRE -AGREEMENT COSTS - The DISTRICT and the PROJECT SPONSOR fully understand and agree that there shall be no reimbursement of funds by the DISTRICT for any obligation or expenditure made prior to the execution of this AGREEMENT unless previously 2 156 delineated in Exhibit A, consistent with Exhibit B, and previously approved by the DISTRICT Board during the grant review process. 7. REIMBURSEMENT PROCEDURES - PROJECT COSTS shall be reported to the DISTRICT and summarized on the Payment Reimbursement Request Form (Form #90-14) attached as Exhibit D. Supporting documentation including bills and canceled payment vouchers for expenditures shall be provided to the DISTRICT by the PROJECT SPONSOR or LIAISON AGENT with any payment request. All records in support of the PROJECT COSTS included in payment requests shall be subject to review and approval by the DISTRICT or by an auditor selected by the DISTRICT. Audit expenses shall be borne by the PROJECT SPONSOR. Project funds may be released in installments, at the discretion of the DISTRICT, upon submittal of a payment request by the PROJECT SPONSOR or LIAISON AGENT. The DISTRICT shall retain ten percent (10%) of each installment payment until the completion of the PROJECT. The following costs, if authorized in the attached Exhibit B, shall be reimbursed only upon completion of the PROJECT to the reasonable satisfaction of the DISTRICT and in accordance with Exhibit B: personnel, equipment, project management, administration, inspection, and design, permitting, planning, engineering, and/or surveying costs. Assuming the PROJECT SPONSOR has otherwise fully complied with the requirements of this AGREEMENT, reimbursement for a PROJECT approved as Phase I project will be made only upon commencement of construction of the PROJECT for which the Phase i planning, designing, engineering and/or permitting were directed, which may or may not involve further DISTRICT funding. Procedures set forth below with respect to reimbursement by the DISTRICT are subject to this requirement of commencement of construction. The DISTRICT shall have the right to withhold any payment hereunder, either in whole or part, for non-compliance with the terms of this AGREEMENT. 8. FINAL REIMBURSEMENT - The PROJECT SPONSOR., upon completion of the PROJECT, shall submit to the DISTRICT a request for final reimbursement of the ASSISTANCE AMOUNT less any prior installment payments. The payment amounts previously retained by the DISTRICT shall be paid upon (1) receipt of the Final Audit report of expenses incurred on the PROJECT by the DISTRICT, (2) full completion of the PROJECT to the reasonable satisfaction of the DISTRICT, (3) submission of Project Completion Certification Form No. 90-13 (Exhibit E), (4) submission of a photograph of the PROJECT showing the sign required by Section 18, and (5) a Final Project Report as described in Exhibit G, Assistance Project Schedule. As part of the documentation 3 157 accompanying the request for final reimbursement, PROJECT SPONSOR shall provide proof of payment of all contractors, material suppliers, engineers, architects, and surveyors with whom PROJECT SPONSOR has directly contracted (each a "DIRECT PROVIDER") to provide services or materials for the PROJECT. The final reimbursement amount shall be adjusted as necessary such that neither the total ASSISTANCE AMOUNT nor the MATCHING PERCENTAGE is exceeded. Unless otherwise determined by the DISTRICT, the final reimbursement check shall be presented by a DISTRICT representative to the PROJECT SPONSOR during a public commission meeting or public dedication ceremony for the PROJECT. 9. RECORDS RETENTION - The PROJECT SPONSOR shall retain all records supporting the PROJECT COSTS for three (3) years after the end of the fiscal year in which the Final Payment is released by the DISTRICT, except that such records shall be retained by the PROJECT SPONSOR until final resolution of matters resulting from any litigation, claim, or special audit that starts prior to the expiration of the three-year retention period. 10. DEFAULT AND REMEDIES — In the event of a breach of any of the terms of this AGREEMENT by the PROJECT SPONSOR, the DISTRICT shall provide written notice to the PROJECT SPONSOR, which shall have sixty (60) days in which to cure the breach. If the PROJECT SPONSOR fails to cure the breach within the cure period, the DISTRICT shall have the right, but not the obligation, to demand that the PROJECT SPONSOR immediately refund the ASSISTANCE AMOUNT to the extent paid. PROJECT SPONSOR shall refund to the DISTRICT the full amount of the ASSISTANCE AMOUNT paid to PROJECT SPONSOR, whereupon this AGREEMENT, and all further rights thereunder, shalt be terminated. If the DISTRICT does not demand reimbursement as aforesaid, the DISTRICT may exercise any and all other remedies available at law or in equity. With respect to the PROJECT SPONSOR's obligations under Sections 15, 17, and 20, PROJECT SPONSOR acknowledges that breach by the PROJECT SPONSOR of one or more of its obligations under said sections might cause the DISTRICT to suffer irreparable harm, namely harm for which damages would be an inadequate remedy. PROJECT SPONSOR further acknowledges that the DISTRICT might suffer irreparable harm due to delay if, as a condition to obtaining an injunction, restraining order, or other equitable remedy with respect to such a breach, the DISTRICT was required to demonstrate that it would suffer irreparable harm. The parties therefore intend that if the PROJECT SPONSOR breaches one or more of its obligations under Sections 15, 17, or 20, the DISTRICT, in addition to such other remedies which may be available, shall have the right to seek specific performance and injunctive relief, and for purposes of determining whether to grant an equitable 4 158 remedy any court will assume that the breach would cause the DISTRICT irreparable harm. The provisions of this section shall survive completion of the PROJECT. 11. DISTRICT PROJECT MANAGER - The Executive Director, or his designee, is hereby designated as the DISTRICT's Project Manager for the purpose of this AGREEMENT and shall be responsible for monitoring performance of its terms and conditions and for approving all reimbursement requests prior to payment. 12. PROJECT SPONSOR'S LIAISON AGENT - The PROJECT SPONSOR shall appoint a LIAISON AGENT, whose name and title shall be submitted to the DISTRICT upon execution of this AGREEMENT, to act on behalf of the PROJECT SPONSOR relative to the provisions of this AGREEMENT. 13. STATUS REPORTS - The PROJECT SPONSOR or LIAISON AGENT shall submit to the DISTRICT project status reports during the PROJECT term. These Quarterly Reports are to be on Form #95-02 (Exhibit F, Assistance Program Project Quarterly Status Report). Project design drawings, engineering drawings, and a copy of the Project bid award construction item cost list will be submitted as available. Photographs shall be submitted when appropriate to reflect the work accomplished. NON-COMPLIANCE by the PROJECT SPONSOR with the reporting schedule in Exhibit G, Assistance Project Schedule, may result in revocation of this AGREEMENT. 14. LAWS - The PROJECT SPONSOR agrees to obtain and to abide by all federal, state, and local permits and proprietary authorizations, and all applicable laws and regulations in the development of the PROJECT. The PROJECT SPONSOR agrees that all PROJECT facilities shall be designed and constructed in compliance with applicable state and federal statutory requirements for accessibility by handicapped persons, as well as all other federal, state and local laws, rules, and requirements. 15. NON-DISCRIMINATION - The PROJECT SPONSOR agrees that when completed, the PROJECT shall be readily accessible, on a non-exclusive basis, to the general public of DISTRICT member counties without regard to age, sex, race, physical handicap, or other condition, and without regard to residency of the user in another political subdivision. 16. PARKING FACILITIES -Adequate parking shall be made available by the PROJECT SPONSOR to accommodate vehicles for the number of persons for which the PROJECT is being developed. 17. SITE DEDICATION — FOR LAND-BASED DEVELOPMENT PROJECTS The PROJECT SPONSOR also agrees that the PROJECT site shall be dedicated for the public use 5 159 for which the PROJECT was intended for a minimum period of thirty-five (35) years from the completion of the PROJECT, such dedication to be in the form of a deed, lease, management AGREEMENT or other legally binding document. Any change in such dedication shall require the prior approval of the DISTRICT. The PROJECT SPONSOR shall record evidence of such dedication within the Public Records of the County in which the PROJECT is located. 18. ACKNOWLEDGMENT — For construction projects, the PROJECT SPONSOR shall erect a permanent sign, approved by the DISTRICT, in a prominent location such as the PROJECT entrance of the completed PROJECT, which shall indicate that the DISTRICT contributed funds for the PROJECT. The wording of the sign required by this section shall be approved by the DISTRICT's staff before construction and installation of said sign. This sign shall contain the DISTRICT logo (Exhibit H) unless otherwise stipulated by the DISTRICT. In the event that the PROJECT SPONSOR erects a temporary construction sign, it shall also indicate the DISTRICT's participation. For all other types of projects, the PROJECT SPONSOR shall acknowledge the DISTRICT where feasible, in concurrence with the DISTRICT staffs recommendations. 19. PROJECT MAINTENANCE - When and as applicable, the PROJECT SPONSOR agrees to operate, maintain, and manage the PROJECT for the life of the PROJECT improvements and will pay all expenses required for such purposes. The PROJECT improvements shall be maintained in accordance with the standards of maintenance for other local facilities owned and operated by the PROJECT SPONSOR, and in accordance with applicable health standards. PROJECT facilities and improvements shall be kept reasonably safe and in reasonable repair to prevent undue deterioration and to encourage public use. The PROJECT SPONSOR warrants and represents that it has full legal authority and financial ability to operate and maintain said PROJECT facilities and improvements. 20. FEES — Any fees charged for this PROJECT shall be reasonable and the same for the general public of all member counties. The PROJECT SPONSOR must demonstrate that a minimum of fifty percent (50%) of the PROJECT fees will be utilized for project maintenance and improvements throughout the anticipated useful life of a development project or the design life of other project types, as applicable. 21. SOVEREIGN IMMUNITY - Each party hereto agrees that it shall be solely responsible for the wrongful acts of its employees, contractors, and agents. However, nothing contained herein shall constitute a waiver by either party of its sovereign immunity under Section 768.28, Florida Statutes. The PROJECT SPONSOR acknowledges that the DISTRICT, its 160 employees, commissioners, and agents are solely providing funding assistance for the PROJECT and are not involved in the design, construction, operation, or maintenance of the PROJECT. 22. INSPECTIONS - The DISTRICT reserves the right, upon reasonable request, to inspect said PROJECT and any and all records related thereto at any time. 23. RIGHTS AND DUTIES - The rights and duties arising under this AGREEMENT shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, and shall, unless the context clearly requires otherwise, survive completion of the PROJECT. The PROJECT SPONSOR may not assign this AGREEMENT nor any interest hereunder without the express prior written consent of the DISTRICT. 24. WAIVERS - Waiver of a breach of any provisions of this AGREEMENT shall not be deemed a waiver of any other breach of the same or different provision. 25. NOTICE - Any notice required to be given pursuant to the terms and provisions of this AGREEMENT shall be in writing, postage paid, and shall be sent by certified mail, return receipt requested, to the DISTRICT or PROJECT SPONSOR at the addresses below. The notice shall be effective on the date indicated on the return receipt. To the DISTRICT at: Florida Inland Navigation District 1314 Marcinski Road Jupiter, Florida 33477-9498 To the PROJECT SPONSOR at: Indian River County Attention: Conservation Lands Manager, 1801 27th Street Vero Beach, FL 32960 26. NO JOINT VENTURE - The DISTRICT's role with respect to the PROJECT is that of a funding assistance authority only and the DISTRICT is not, and shall not be considered to be, an agent, partner, or joint venturer with the PROJECT SPONSOR. 27. GOVERNING LAW - The validity, interpretation, and performance of this AGREEMENT shall be controlled and construed according to the laws of the State of Florida. 28. TRANSFERENCE - It is the intent of the DISTRICT to issue this funding assistance to the PROJECT SPONSOR who has made application for this assistance. In the event the PROJECT i7 161 SPONSOR transfers ownership or management of the PROJECT to a party or parties not now a part of this AGREEMENT, other than another governmental entity that agrees to assume, in writing, PROJECT SPONSOR'S obligation hereunder, the DISTRICT retains the right to full reimbursement from the PROJECT SPONSOR to the full extent of the funding assistance provided by the DISTRICT including, but not limited to, any costs and reasonable attorney's fees (regardless of whether litigation ensues) incurred by the DISTRICT in collecting said reimbursement. 29. ENTIRE UNDERSTANDING - This AGREEMENT, including any exhibits made a part hereof, embodies the entire AGREEMENT and understanding of the parties and supersedes all prior oral and written communications between them. The terms hereof may be modified only by a written amendment signed by both parties hereto. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day, month and year aforesaid. FLORIDA INLAND NAVIGATION DISTRICT By: Executive Director Date: Indian River County By: Title: Date: 162 8 Exhibit A PROJECT COST ESTIMATE WATERWAY ASSISTANCE PROGRAM FY 2023 -- - - • ..:Ii 11: • - • �� • Project Title* Environmental Learning Center Main Dock Replacement Part II Applicant: Indian River County Project Elements (Please list the MAJOR project elements and provide general costs for each one. For Phase 1 Projects please list the major elements and products expected) Total Estimated Cost Applicant's Cost (To the nearest $50) FIND Cost (To the nearest $50) Demolition of FIND -funded dock Part 1-$50,00 Part 1-$25,000 Part 1-$25,000 Construction of new Environmental Education Dock Part 1- $150,000 Part ll -$100,000 Part 1-$75,000 Part 11-$50,000 Part 1-$75,000 Part II -$50,000 **TOTALS = 1$300,000-00 $ $150,000.00 *The ELC has committed to providing sufficient funding should the project exceed the estimated budget Form No, 90-25 (New 10/14/92, Revised 04-24-06) 163 Exhibit B 2023 CHAPTER 6613-2 WATERWAYS ASSISTANCE PROGRAM 6613-2.001 Purpose 66B-2.002 Forms 66B-2.003 Definitions 66B-2.004 Policy 663-2.005 Funds Allocation 66B-2.006 Application Process 66B-2.0061 Emergency Applications 66B-2.008 Project Eligibility 66B-2.009 Project Administration 66B-2.011 Reimbursement 66B-2.012 Accountability 66B-2.013 Acknowledgement 66B-2.014 Small -Scale Spoil Island Restoration and Enhancement Projects 66B-2.015 Small -Scale Derelict Vessel Removal Projects 663-2.016 Waterways Cleanup Events 66B-2.001 Purpose. Recognizing the importance and benefits of inland navigation channels and waterways, as well as noting problems associated with the construction, continued maintenance and use of these waterways, the Florida Legislature created Section 374.976, F.S. This law authorizes and empowers each inland navigation district to undertake programs intended to alleviate the problems associated with its waterways. The purpose of this rule is to set forth the District's policy and procedures for the implementation of an assistance program under Section 374.976, F.S., for local governments, member counties and navigation related districts within the District. This program will be known hereafter as the Florida inland Navigation District's Waterways Assistance Program. Rulemaking Authority 374.976(2) FS Lav Implemented 374.976(1) FS. History—New 12-17-90, Formerly 16T-2.001. 6613-2.002 Forms. All forms for the administration of this program are available from the District office located at 1314 Marcinski Road, Jupiter, Florida 33477. Rulemaking Authority 374.976(2) FS. Lav Implemented 374.976(1) FS History—New 12-17-90, Formerly 16T-2.002. 66B-2.003 Definitions. The basic terms utilized in this rule are defined as follows: (1) "APPLICANT" means an eligible governmental agency submitting an application through this program. (2) "APPLICATION" means a project proposal with the required documentation. (3) "AUTHORIZED SUBMISSION PERIOD" means the established period for submitting applications to the District. (4) "BEACH RENOURISHMENT" means the placement of sand on a beach for the nourishment, renourishment or restoration of a beach. (5) "BOARD" means the Board of Commissioners of the Florida Inland Navigation District. (6) "DISTRICT' means the Florida inland Navigation District (FIND). (7) "ELIGIBLE GOVERNMENTAL AGENCY" means member counties, local governments and navigation related districts within the taxing boundaries of the District. (8) "ENVIRONMENTAL PERMITS" means those permits, proprietary authorizations, exemptions, or general permits for construction below mean high water line of a navigable waterway required and issued by or on behalf of the U.S. Army Corps of Engineers, the Florida Department of Environmental. Protection, and the South Florida or the St. Johns River Water Management Districts or their successors. (9) "EXECUTIVE DIRECTOR" means the Executive Director of the Florida Inland Navigation District. 164 (10) "LIAISON AGENT" means the contact person officially designated to act on behalf of the applicant or the project sponsor. (11) "LOCAL GOVERNMENTS" means municipalities, cities, or consolidated county governments, which are located within the member counties. (12) "MARITIME MANAGEMENT PLAN" means a written plan containing a systematic arrangement of elements specifically formulated to identify, evaluate and promote the benefits of eligible waterway accessibility and enjoyment, with consideration and respect to the physical, environmental and economic parameters of the planning area. (13) "MATCHING FUNDS" means those funds provided by the local sponsor to the project. (14) "MEMBER COUNTY" means a county located within the taxing boundaries of the District which includes Nassau, Duval, St. Johns, Flagler, Volusia, Brevard, Indian River, St. Lucie, Martin, Palm Beach, Broward and Miami -Dade Counties. (15) "NAVIGATION RELATED DISTRICTS" means port authorities, inlet districts or any other agency having legally authorized navigation related duties in waterways of the District. (16) "PRE -AGREEMENT COSTS" means project costs approved by the District Board which have occurred prior to the execution of the project agreement. (17) "PROGRAM" means the Florida Inland Navigation District Waterways Assistance Program. (18) "PROGRAM FUNDS" means financial assistance awarded by the Board to a project for release to the project sponsor pursuant to the terms of the project agreement. (19) "PROJECT" means a planned undertaking consisting of eligible program facilities, improvements or expenses for the use and benefit of the general public. (20) "PROJECT AGREEMENT" means an executed contract between the District and a project sponsor setting forth mutual obligations regarding an approved project. (21) "PROJECT MAINTENANCE" means any usual action, activity, expense, replacement, adjustment or repair taken to retain a project or grant item in a serviceable, operational or normal condition, or the routine efforts and expenses necessary to restore it to serviceable or normal condition, including the routine recurring work required to keep the project or grant item in such condition that it may be continuously used at its original or designed capacity and efficiency for its intended purpose. (22) "PROJECT MANAGER" means the District employee who is responsible for monitoring the performance of the Project and compliance with the project agreement. (23) "PROJECT PERIOD" means the approved time during which costs may be incurred and charged to the funded project. (24) "PROJECT SPONSOR" means an eligible governmental agency receiving program funds pursuant to an approved application. (25) "PUBLIC BUILDING" means a building or facility on government owned property that is owned or operated by a governmental entity, or operated by a third party operator. The building or facility must provide waterway related information, public meeting space, or educational services and be open to members of the public on a continual basis without discrimination. (26) "PUBLIC MARINA" means a harbor complex used primarily for recreational boat mooring or storage, the services of which are open to the general public on a first come, first served basis without any qualifying requirements such as club membership, stock ownership, or differential in price. (27) "PUBLICLY OWNED COMMERCIAL OR INDUSTRIAL WATERWAY ACCESS" means any publicly owned area specifically designed to be used for staging, launching, or off-loading by commercial or industrial waterway users on a first come, first served, short-term basis, to gain entry to or from the District's waterways to serve the infrastructure needs of the District's waterway users. (28) "WATERWAYS" means the Atlantic Intracoastal Waterway, the Okeechobee Waterway, the Barge Canal in Brevard County west of the Port Canaveral Locks, those portions of the Dania Cut -Off Canal and the Hillsboro Canal east of the water control structures, all navigable natural rivers, bays, creeks or lagoons intersected by said waterways and all navigable natural creeks, rivers, bays or lagoons entering or extending from said waterways. (29) "WATERWAY RELATED ENVIRONMENTAL EDUCATION" means an interdisciplinary holistic process by which the learner: develops an awareness of the natural and manmade environments of waterways; develops knowledge about how the environment of the waterways works; acquires knowledge about the technological, social, cultural, political, and economic relationships occurring in waterway related environmental issues; and, becomes motivated to apply action strategies to maintain balance between quality of life and quality of the environment of waterways. Rulemaking Authority 374.976(2) FS. Law Implemented 374.976(1) FS History --New 12-17-90, Amended 9-2-92, 2-6-97, Formerly 16T-2.003, 165 Amended 5-17-98, 3-21-01, 3-20-03, 3-3-04, 4-21-05, 4-24-06, 4-15-07, 3-25-08, 3-7-11, 3-25-21. 668-2.004 Policy. The following constitutes the policy of the District regarding the administration of the program: (1) Financial Assistance Eligibility: Financial assistance, support and cooperation may be provided to eligible governmental agencies for approved projects as follows: (a) Member counties may be provided financial assistance, support or cooperation in planning, acquisition, development, construction, reconstruction, extension, improvement, operation or the maintenance of public navigation, local and regional anchorage management, beach renourishment, public recreation, inlet management, environmental education, maritime management plans, and boating safety projects directly related to the waterways. (b) Eligible local governments may also be provided financial assistance, support and cooperation in planning and carrying out public navigation, local and regional anchorage management, beach renourishment, public recreation, inlet management, environmental education, and boating safety projects directly related to the waterways. (c) Navigation related districts may be provided with financial assistance to pay part of the costs of the planning and acquisition of dredge material management sites if the Board finds that the site is required for the long-range maintenance of the Atlantic Intracoastal Waterway channel. All such sites must meet the development and operational criteria established by the District through a long-range dredge material management plan for that county. Navigation related districts may also be provided with assistance for waterway related access projects, environmental mitigation projects associated with waterway improvement related activities, and inlet management projects if the Board finds that the project benefits public navigation in the Atlantic Intracoastal Waterway. All navigation related districts shall contribute at least equal matching funds to any District financial assistance provided. Seaports may also be furnished assistance and support in planning and carrying out environmental mitigation projects. All seaport projects shall benefit publicly maintained channels and harbors. Each seaport shall contribute matching funds for funded projects. (d) Eligible projects shall include the acquisition and development of public boat ramps and launching facilities, including those in man-made, navigable waterways contiguous to "waterways" as defined in Rule 66B-2.003, F.A.C. (2) Notification: The District will notify by direct mail, email and/or advertised public notice all eligible governmental agencies of the program and the upcoming authorized submission period. (3) Project Approval: Approval of projects by the District shall be in accordance with these rules. (4) Project Accessibility: Facilities or programs funded in whole or in part by program funds shall be made available to the general public of all of the member counties on a non-exclusive basis without regard to race, color, religion, age, sex or similar condition. Additionally, facilities funded in whole or in part by program funds, shall not require a paid membership for the general public of all of the member counties as a condition to use the facilities. User or entrance fees may be charged for the use of facilities funded in whole or in part by program funds, however such fees shall be reasonable and shall be the same for the general public of all of the member counties. (5) Waterway Impacts: All development projects must be designed so as not to impact navigation along the District's waterways through the placement of structures, attendant uses, or the necessity of a boating speed zone for safety purposes. Before applying for boating speed zone designation in District waterways because of a project funded by this program, the sponsor shall first receive approval from the Board. The Board will use the criteria found in Section 327.46(1), F.S., in determining whether to approve the proposed boating speed zone. (6) Project Maintenance: The project sponsor shall be responsible for the operation, maintenance, and management of the project for the anticipated life of the project and shall be responsible for all expenses required for such purposes. The project shall be maintained in accordance with the standards of maintenance for other similar local facilities and in accordance with applicable health standards. Project facilities and improvements shall be kept reasonably safe and in reasonable repair to prevent undue deterioration and to encourage public use. The project sponsor shall have full legal authority and financial ability to operate and maintain the project facilities. (7) Education Facilities and Programs: Waterways related environmental education facilities and programs sponsored by the District shall occur at specially designated environmental education facilities located adjacent and contiguous to the waterways. It is the District's intent to consolidate its environmental education efforts in the least number of facilities within an area that will adequately serve the education needs of that area of the District. (8) Public Information Availability: Public information produced with assistance from this program shall not be copyrighted and 166 shall be provided free ofcost, except for the cost, of reproduce at,, to dw p (9) Third -Party Project Operators Projects that are being operated ly s paray shall .hoft sufficient oversight by *t eligible projectsponsor as determined by the Board. Such oversight, at a minimum, will include a ptttject liaison that is a;staff member of the .eligible project sponsor, and oversight of the operating hours and admission fees of the Adfily tW the elite ptqject sponsor through a legal agreement. All 6ird party projects shall be open to the public in accordance with this rule+: (10) Non-compliance: The District shall terminate a project -agreement and demand return of program funds ttisbu md'to the -project sponsor for non-compliance with any of the terms of the project agreement or this rule; if such non-compliance calls into question the ability of the applicant to complete the project. Failure of a project sponsor io comply with the provisionsof this rule .or the project agreement shall result in the District declaring the project sponsor ineligible for further participation in the program 11WI such time as compliance has been met to the satisfaction of the ». (11) Fees: Any public project eligible for District programfunds that charges a fee or will charge a fee must create and maintain an enterprise fund for the public project that shall plant for and retain at all times sufficient funds for the on-going maintenance of the facility during its project life. Accounting records of the previous five years of the publW project's :enterprise fund will be submitted as part of any subsequent assistance program application to the District Rulemaking Authorky 374.976() M. Law Impfwwnted 3748 9M(I); (2) FS M&O 12,17;f it*&%".24-p4, :U47, F#r*wy 16T-2,04. Amended 5-18=48, 3:31-99.5-23=00. 3 21-09. 7-30.0,4-3-K 4.21-03: 4-1 Z42-10: $44 4 3-7-12, 1 -1#,,24711 66B-2.005 Funds Allocation. The Board will'allecate funding for thisprogram based upon the Districes overall goals, management policies, fiscal responsibilities and operational needs for the upcoming year. Ftm&ug allocations la navigation related districts, member Mies and :local governments shall be based upon the proportional share of the District's ad valorem tax collections from each oetmly. If funds are determined to be available for the program, the District will notify potential eligible governmental agencies. ofavailability of program funding. Applications will be reviewed by the Board utilizing District Furnas No. W-15 and 41.0 (A) through (F) Waterways Assistance Program Application and Evaluation 1Wdrksheet (dbc#W date 1/2014 het&Y 6y reforwice and available at: 1o:llwww flrules.or Gateway/reference.asp?No=Ref-0 and available from the Vt Qin or by download from the District's webpage at: www.aicw.org. (1) Funding Assistance Availability: In as much as the District has other fiscal responsibilities and operational needs; futartcial assistance to eligible government agencies shall not exceed an amount equal to eighty (80) percent oft ptvportional shaire of District's ad valorem tax collections from each county in which such agencies are located. The DiaWdInq make an-excw. tion to this funding limitation, if funds are determined to be available based upon the District's overall goals, management policies, fiscal responsibilities and operational needs, or in counties that are recovering from a state of emergency declared under Chapter 252, FS. (2) Project Funding Ratio: All financial assistance and support to eligible; governmental agencies Sl 4 require, at, a-ml0mum, equal matching finds from the project sponsor, with the exception of public navigation projects that meet the provisions -of subsection 663-2.005(6), 05(6), F.A.C., land acquisition projects in accordance with subsection 66B 2A,5(7), Rule 66B-2-009, F.A.C., small-scale spoil island restoration and enhancement projects that meet the provisions of Rule�,.*, F.A,C., derolict vessel projects consistent with Rule 66B-2,0015; F.A:C., and Waterway Cleanup P jects approved under Rule,460-Z. I6, P.A.C., and projects approved in counties recovering from a state .atemergency. Ap$icant's in-kouse costs #6 limited pursuant to paragraph 66B-2.OI?8(l)(c), F.A.C. All financial assistance to seaports shall require equal match* ice, The Disttit shall contribute no more than M percent (305,o) of the local share of the cost of an inlet numagement or beach renourishment,pmj ect. The District shall not contribute funding to both the state and local shares.'of an itttdt management or beach renour shment pr%cot. (3) Pre -agreement Expenses: The project sponsor shall trot comniarice we.*,, on an approved i ptW to the execution of the project agreement unless authorized by the Board during the review and funding apprwW .process. Board authorization of pre -agreement expenses will be given for the commencement 4wotk prior to the execution of t project agreement if the Board determines that there is a benefit to the District, its waterways or its eitnstituents. All project costs trust be incurred and work performed within the project period as stipulated in the project agreement ,unless pre -agreement costs are approved by the Board. Pre -agreement expenses will ;be approved if they are consistent with the provisions of Rule 66B -2M8, F.A.C,, and occur witbio the fiscal year of the grant application submission ( MID September 30th). Pte-agrOOMM expenses, except for projects approved by the Board as multi year proja ts, will be Bruit to flAy (54) puvM eUthe prcjeet"'s total cost and if the expenses are eligible project expenses in accordance with this nde. ` me4ialf (1/) or ku of the approved pre -agreement 167 expenses will be eligible for reimbursement funding from the District, except for projects approved by the Board as multi-year projects. The Board shall consider a waiver of the limitation on pre -agreement expenses for Small -Scale Derelict Vessel grants and land acquisition projects when the applicant demonstrates a direct need and benefit and the project is in accordance with the applicable provisions of Chapter 6611-2, F.A.C. (4) Multi -Year Funding: The construction phase of projects that are large scale, involve multiple phases, have a construction time line of one year or longer, or are requesting a significant amount of assistance funding in relation to the total assistance available for the county where the project is located, will be reviewed and approved by the District Board for a multiple year period subject to budgeting and allocation pursuant to the provisions of Chapter 200, F.S. The determination by the Board to provide assistance funding on a multi-year basis can be made at any time during the application review process. All approved multi-year projects are limited to a maximum of two (2) additional funding requests. (5) Inlet Management and Beach Renourishment: Projects and project elements in the categories of inlet management and beach renourishment shall be subject to the following provisions. The District shall contribute no more than fifty percent of the local share of the cost of the project. The District shall not contribute funding to both the state and local shares of an inlet management or beach renourishment project. Funding for the construction phase of an inlet management or beach renourishment project may be approved by the District Board for a multiple year period subject to budgeting and allocation pursuant to the provisions of Chapter 200, F.S. Additionally the following provisions shall be met for inlet management or beach renourishment projects: (a) Inlet Management: Inlet management projects shall benefit public navigation within the District and shall be consistent with Department of Environmental Protection approved inlet management plans and the statewide beach management plan pursuant to Section 161.161, F.S. Prior to funding any inlet management project, the Board shall make a finding that the project is a benefit to public navigation in the District. Inlet management projects that are determined to be consistent with Department of Environmental Protection approved inlet management plans are declared to be a benefit to public navigation. (b) Beach Renourishment: All projects in this category shall be consistent with the statewide beach management plan. Beach renourishment projects shall only include those beaches that have been adversely impacted by navigation inlets, navigation structures, navigation dredging, or a navigation project. Prior to funding any beach renourishment project, the Board shall make a finding that the beaches to be nourished have been adversly impacted by navigation inlets, navigation structures, navigation dredging or a navigation project. The determination of beach areas that are adversely impacted by navigation for the purposes of this program shall be made by Department of Environmental Protection approved inlet management plans. If state funding is not provided for a beach project, public access with adequate parking must be available in accordance with Chapter 161, F.S. (6) Public Navigation: Projects or project elements in the category of public navigation that will qualify for up to seventy-five percent (75%) program funds must be within the Intracoastal Right -of -Way (ROW), or provide public navigation channel access to two or more publicly accessible launching, mooring or docking facilities. In addition, the following shall apply: (a) Navigation channel dredging: The project sponsor must demonstrate that the source of channel sedimentation has been identified and is in the process of, or has been controlled, or that the frequency and amount of shoaling is such that dredging will provide an improvement to the channel that will last for twenty (20) years or more and therefore is more cost effective than identifying and correcting the cause of shoaling, or that the cost of identifying the source of channel sedimentation exceeds the cost of the dredging project. (b) Navigation channel lighting and markers must be located on primary or secondary public navigation channels. Navigation projects or project elements that have one facility open to the public will qualify for up to fifty percent (50%) program funding. Dredging that is associated or ancillary to another use (such as a boat ramp, marina or pier) will be prioritized according to the associated use. (7) Land Acquisition: Land acquisition projects shall qualify for a maximum of fifty (50) percent funding. All pre -agreement expenses for land acquisition must be completed within one-year of the date of application for funding. Except for acquisition of publicly owned spoil disposal site, all funded land acquisition projects must construct the required boating access facility within 7 years of completion of the land acquisition, or the District may require the applicant to refund the program funding. Immediately upon acquiring title to the land, the applicant shall record a declaration of covenants in favor of the District stating that if the required boating access facility is not constructed within 7 years and dedicated for the public use as a boating access facility in perpetuity after completion of construction, the District shall require the applicant to refund the program funding. (8) Seaport Funding Eligibility: Financial assistance to seaports may exceed the proportional share of the District's ad valorem tax collections as set forth in subsection 668-2.005(1), F.A.C., from the county in which such seaport is located if the seaport can 168 demonstrate that a regional benefit occurs from the port's activities. Financial assistance to a seaport project that demonstrates a regional benefit shall not exceed an amount equal to (i) the proportional share of the District's ad valorem tax collections as set forth in subsection 66B-2.005(1), F.A.C., from the counties where the benefit is demonstrated less (ii) funding allocated in the same fiscal year to all other local government projects funded in those counties. Rulemaking Authority 374.976(2) FS. Law Implemented 374.976(1), (3) FS. History—New 12-17-90, Amended 6-24-93, 9-5-96, 2-6-97, Formerly 16T-2.005, Amended 5-17-98, 8-26-99, 3-21-01, 7-30-02, 3-3-04, 4-21-05, 4-24-06, 4-15-07, 3-25-08, 4-1-09, 3-7-11, 3-7-12, 4-10-13, 1-27-14, 5- 15-16,3-25-21. 66B-2.006 Application Process. (1) Application Period: With the exception of eligible Disaster Relief Projects, eligible Small -Scale Spoil Island Restoration and Enhancement Projects eligible Small -Scale Derelict Vessel Applications and Waterway Cleanup Events, all applications for assistance through this program will be submitted during the authorized submission period that shall be established by vote of the Board at a scheduled meeting. (2) Application Forms: Florida Inland Navigation District Waterways Assistance Program Project Application FIND Form Number 90-22 (effective date 4-24-06) and the Waterway Assistance Program Application and Evaluation Worksheet No. 91-25 and 91-25 (A) through (F) (effective date 1/2014) are hereby incorporated by reference and available from the District office. With the exception of projects eligible under the Small -Scale Spoil Island Restoration and Enhancement program, the Small -Scale Derelict Vessel program, and eligible Waterway Cleanup Events, alt applications for financial assistance and support through this program from member counties and local governments shall be made on Form Number FIND 90-22 and the Waterway Assistance Program Project Application and Evaluation Worksheet No. 91-25 and 91-25 (A) through (F) and shall include a detailed cost estimate submitted on FIND Form No. 90-25, Florida Inland Navigation District Assistance Program Project Cost Estimate, (effective date 4- 24-06), hereby incorporated by reference and available from the District office. In addition, all applicants shall submit a complete and detailed Project Timeline (FIND FORM No. 96-10) (effective date 4-15-07). (3) Sponsor Resolution: The project sponsor shall approve the submission of an application by official resolution from its governing board or commission. Said resolution shall be made on FIND Form No. 90-21, Resolution for Assistance Under the Florida inland Navigation District Waterways Assistance Program (effective date 10-14-92), hereby incorporated by reference and available from the District office. (4) Attorney's Certification: If the application is for a project that is a land based development project the applicant shall submit an Attorney's Certification of Title, FIND Form Number 94-26 (effective date 5-25-00). hereby incorporated by reference and available from the District office. (5) Maps and Geographic Information: All applicants shall be required to submit, at minimum, the following geographic information: A County location map, a project location map, a project boundary map, and a clear and detailed site development map for land development projects. (6) Application Review: Applicants shall obtain the local FIND Commissioner's initials on Form No. 90-26 prior to submitting the application to the District office. It is the applicant's responsibility to make timely arrangements for the local FIND Commissioner's review. In the absence of extenuating circumstances outside of the applicant's control as determined by the Board of Commissioners, an application shall not be considered complete if it does not include the local FIND commissioner's initials on Form No. 90-26. Upon receipt in the District office, staff will review the applications for completeness of the informational requirements identified in the Application Checklist, FIND Form Number 90-26 (effective date 7-30-02), and for compliance with the eligibility requirements of this rule. When an application is determined by staff to be incomplete or ineligible, staff will immediately inform the applicant by mail. The applicant will then have until the date established by the Board in the application package to bring the application into compliance. If the applicant fails to provide a complete application in compliance with these rules, the application will not be considered for funding. In order to have a complete application, the applicant shall not only submit the forms required under Rule 66B-2.006, F.A_C., and any other information requirements identified in the Application Checklist (FIND Form Number 90-26), but such forms and other submitted information must be completely filled out, executed as applicable, and also establish compliance with Chapter 6613-2, F.A.C. (7) Interlocal Agreements: Applications that the Board determines will directly benefit the maintenance of the Atlantic Intracoastal Waterway channel as documented by the District's long range dredged material management plans, will directly benefit the maintenance of the Okeechobee Waterway channel as documented by the District's long range dredged material management 169 plan, will directly benefit the maintenance or improvement of District property, right-of-way or navigation interests, or have multiple funding partners including the Corps of Engineers as the project manager can qualify for project assistance through an interlocal agreement pursuant to Chapter 163 or Section 374.984(6)(a), F.S. District staff will identify these applications and present them to the Board for their determination as to funding. Interlocal agreement projects shall comply with all other provisions of this rule, except for pre -agreement expenses, permitting and property control requirements. (8) Application Presentations: Applications determined to be complete and in compliance with this rule will be forwarded to the Board for review and then scheduled for presentation to the Board at a scheduled meeting of the Board. Applicants can decline to make a presentation to the Board by submitting a written request. (9) Application Evaluation and Rating Score: Following the presentations, the Board will review the applications and evaluate them using the Waterways Assistance Program Application and Evaluation Worksheets No. 91-25 (A) through (F) for Waterways Assistance Program applications. The total points awarded to each application by the Commissioners will be averaged to determine an application's final rating score. The final rating score for each application must equal or exceed 35 points for the application to be considered for funding assistance. Reconsideration of any application with a final rating score of less than 35 points will only occur if the majority of the Commissioners evaluating the project rated the project equal to or exceeding 35 points and two-thirds of the Commissioners vote for reconsideration of the application. Only Applicants that are eligible under Rule 66B-2.0061, F.A.C., "Disaster Relief Applications," shall complete FIND Form No. 91-25F Emergency Re -Construction (effective date 4-24-06, 1/2014). (10) Funding Determination: The Board will hold a funding allocation meeting at which time the Board will determine the allocation of funds, if any, to each project and the projects will be ranked by overall average score to facilitate final funding decisions by the Board. Allocations will be based in part upon the cumulative score of the applications as calculated from the Project Evaluation and Rating Form. Allocations will also be based upon the specific needs of the individual counties. Rulemaking Authority 374.976(2) FS. Lav Implemented 374.976(1) FS. History—New 12-17-90, Amended 9-2-92, 6-24-93, 4-12-95, Formerly 16T- 2.006, Amended 5-25-00, 3-21-01. 7-30-02,3-20-03, 4-21-05,4-24-06,4-15-07, 3-25-08,3-7-11, 1-27-14. 66B-2.0061 Disaster Relief Applications. Disaster Relief applications may be submitted to the District and considered by the Board at any time during the year to provide assistance to an eligible applicant for the removal of navigation obstructions and repair or replacement of waterway facilities damaged by a declared natural disaster. Applicants for Disaster Relief shall use the same forms listed in subsection 66B-2.006(2), F.A.C. The District shall consider these applications in accordance with these rules. Rulemaking Authority 374.976(2) FS Law Implemented 374.976(1) FS. History—New 6-24-93, Amended 2-6-97, Formerly 16T-2.0061, Amended 4-24-06, 3-25-21. 66B-2.008 Project Eligibility. (1) Eligible Projects: Financial assistance and support through this program shall be used to plan or carry out public navigation and anchorage management, public recreation, environmental education, boating safety, acquisition and development of spoil sites and publicly owned commercial/industriaI waterway access directly related to the waterways, acquisition and development of public boat ramps, launching facilities and boat docking and mooring facilities, inlet management, maritime management planning, environmental mitigation and beach renourishment. (a) Program funds may be used for projects such as acquisition, planning, development, construction, reconstruction, extension, or improvement, of the following types of projects for public use on land and water. These project types will be arranged into a priority list each year by vote of the Board. The priority list will be distributed to applicants with the project application. 1. Public navigation channel dredging, 2. Public navigation aids and markers, 3. Inlet management projects that are a benefit to public navigation in the District, 4. Public shoreline stabilization directly benefiting the District's waterway channels, 5. Acquisition and development of publicly owned spoil disposal site and public commercial industrial waterway access, 6. Waterway signs and buoys for safety, regulation or information, 7. Acquisition, dredging, shoreline stabilization and development of public boat ramps and launching facilities, 8. Acquisition, dredging, shoreline stabilization and development of public boat docking and mooring facilities, 170 9. Derelict Vessel Removal, 10. Waterways related environmental education programs and facilities, 11. Public fishing and viewing piers, 12. Public waterfront parks and boardwalks and associated improvements, 13. Maritime Management Planning, 14. Waterways boating safety programs and equipment, 15. Beach renourishment on beaches adversely impacted by navigation inlets, navigation structures, navigation dredging, or a navigation project; and, 16. Environmental restoration, enhancement or mitigation projects; and, 17. Other waterway related projects. Waterway projects that do not meet specific criteria in subsection 66B-2.005(5) or (6) or subparagraphs 66B-2.008(1)(a)l.-16., F.A.C., but are located on eligible waterways shall be considered for funding under the priority listing of "other waterway related project" and eligible for 251/o funding. (b) Ineligible Projects or Project Elements. Project costs ineligible for program funding or matching funds will include: contingencies, miscellaneous, reoccurring personnel related costs, irrigation equipment, ball -courts, park and playground equipment, and any extraneous recreational amenities not directly related to the waterway such as the following: 1. Landscaping that does not provide shoreline stabilization or aquatic habitat, 2. Restrooms for non -waterway users, 3. Roadways providing access to non -waterway users, 4. Parking areas for non -waterway users, 5. Utilities for non -waterway related facilities, 6. Lighting for non -waterway related facilities, 7. Project maintenance and maintenance equipment, 8. Picnic shelters and furniture for non -waterway related facilities, 9. Vehicles to transport vessels; and, 10. Operational items such as fuel, oil, etc. 11. Office space that is not incidental and necessary to the operation of the main eligible public building; and, 12. Conceptual project planning, including: public surveys, opinion polls, public meetings, organizational conferences; and, 13. Inlet maintenance. (c) Project Elements with Eligibility Limits: Subject to approval by the Board of an itemized expense list: 1. The following project costs will be eligible for program funding or as matching funding if they are performed by an independent contractor: a. Project management, administration and inspection, b. Design, permitting, planning, engineering or surveying costs for completed construction project, c. Restoration of sites disturbed during the construction of an approved project, d. Equipment costs. Before reimbursement is made by the District on any of the costs listed in subparagraph 1., above, a construction contract for the project, approved and executed by the project sponsor and project contractor must be submitted to the District. 2. Marine fire -fighting, Marine law enforcement and other vessels are eligible for a maximum of $100,000 in initial District funding. All future replacement and maintenance costs of the vessel and related equipment will be the responsibility of the applicant. 3. Waterway related environmental education facility funding will be limited to those project elements directly related to the District's waterways. (d) Phasing of Projects: Applications for eligible waterway projects may be submitted as a phased project where Phase I will include the design, engineering and permitting elements and Phase ti will include the construction of the project. A description and cost estimate of the Phase It work shall be submitted along with the Phase I application for Board review. (2) Property Control: The site of a new proposed land-based development project, with the exception of those projects requesting Small -Scale Spoil Island Restoration and Enhancement funding, shall be dedicated for the public use for which the project was intended for a minimum period of 35 years after project completion_ Such dedication shall be in the form of a deed, lease, management agreement or other legally binding document and shall be recorded in the public property records of the county in which the property is located. This property control requirement also applies to a project site owned by another governmental 171 entity. The governmental entity that owns the project site may be joined as a co -applicant to meet this property control requirement. Existing land based development projects that are being repaired, replaced or modified must demonstrate that the project site has been dedicated for public use for at least 25 years with at least 10 years remaining on the dedication document. Property shall also be deemed dedicated for public use if: (a) The property has been designated for the use for which the project is intended (even though there may have been no formal dedication) in a plat or map recorded prior to 1940, or (b) The project sponsor demonstrates that it has had exclusive control over the property for the public use for which the project is intended for a period of at least 30 years prior to submission of the application, or (c) There is no ongoing litigation challenging the designated use of the property as shown on the plat or map, nor has there been any judicial determination contrary to the use by the public for the use shown on the plat or map. (3) Permits: The project sponsor is responsible for obtaining and abiding by any and all federal, state and local permits, laws, proprietary authorizations and regulations in the development and operation of the project. Applicants for construction projects that include elements that require state or federal environmental permits or proprietary authorizations will demonstrate that all required environmental permitting and authorizations will be completed by the third Monday in September. This demonstration will be by submission of the required environmental permit(s) and authorizations, or by submission of a letter from the agency(s) stating that a permit or authorization is not required. Failure to timely submit the required environmental permits and authorizations or letters stating such permits or authorizations are not required shall result in the application not being considered for funding. (4) Public Marina Qualifications: All public marina projects funded through this program shall include sewage pumpout facilities for vessels, unless the applicant can demonstrate that inclusion of such a facility is physically, operationally or economically impracticable. All public marina projects funded through this program shall have at least ten percent (10%) of their slips or mooring areas available for transient vessels. Public marina dockage rates shall be within market comparison of the dockage rates of other area marinas. The public marina will be required to establish and maintain an accounting of the funds for the facility and shall plan for and retain at all times sufficient funds for the on-going maintenance of the facility during its project life. (5) The District may assist eligible local governments with efforts to prepare and implement a comprehensive maritime management plan. The plan shall be utilized by the eligible government to promote and maximize the public benefit and enjoyment of eligible waterways, while identifying and prioritizing the waterway access needs of the community. The plan should not duplicate any existing or ongoing efforts for the same waterway or water shed, nor shall the District participate in any effort that does not address the basic maritime needs of the community. (a) Existing plans may be updated at reasonable intervals or amended to include waterway areas previously not included in the original effort. Public, government, environmental, industry and other pertinent interest groups shall be solicited and included for input in the planning process. (b) The plan shall be utilized as a tool to provide a minimum 5 -year planning analysis and forecast for the maritime needs of the community, and shall include, at minimum, the following: t. Public boat ramp and ramp parking inventory and analysis. 2. Public mooring and docking facility analysis, including day docks and transient slips. 3. Commercial and working waterfront identification and needs analysis. 4. The identification, location, condition and analysis of existing and potential navigation channels. 5. An inventory and assessment of accessible public shorelines. 6. Public Waterway transportation needs. 7. Environmental conditions that affect boat facility siting, a current resource inventory survey, and restoration opportunities. S. Economic conditions affecting the boating community and boating facilities. 9. Acknowledgment and coordination with existing data and information, including an emphasis on the Intracoastal Waterway. (c) Projects requested for assistance program funding shall be consistent with the applicant's maritime management plan. The applicant should utilize the plan to assist in prioritizing waterway improvement projects. (6) All eligible environmental restoration, enhancement or mitigation projects as well as the environmental restoration, enhancement or mitigation components of other types of projects shall be required to pursue and assign any available mitigation credits to the District for that share of the project funded through the District's Assistance Program. All eligible environmental restoration, enhancement or mitigation projects shall provide public access where possible. (7) Final Decisions: The Board will make all final decisions on the eligibility of a Project or specific project costs. 172 Ridemaking Authority 374.976(2) FS. Law Implemented 374.976(1)-(3) FS Histort—New 12-17-90, Amended 9-2-92, 6-24-93, 2-3-94, 4-12-95, 9- 5-96, 2-6-97, Formerly 16T-2.008, Amended 5-17-98, 3-31-99, 5-25-00, 3-21-01, 7-30-02, 3-20-03, 3-3-04, 4-15-07, 3-25-08, 4-1-09, 2-22-10, 3-7- 11, 3-7-12, 1-2744, 2-17-15, 2-21-16, 3-25-21, 3-9-23. 6613-2.009 Project Administration. The District will appoint a project manager who shall be responsible for monitoring the project and the project agreement. The project manager shall also be responsible for approving all reimbursement requests. The project sponsor shall appoint a liaison agent, who will be a member of the eligible applicant's staff, to act on its behalf in carrying out the terms of the project agreement. Administration of the project will be as follows: (1) Project Agreement: For each funded project, the District and the project sponsor will enter into a project agreement. The project agreement shall be executed and returned by the project sponsor within six (6) months of the approval of the project funding and prior to the release of program funds, setting forth the mutual obligations of the parties concerning the project. The project agreement shall incorporate the applicable policies and procedures of the program as outlined in this rule. Project agreements will be for a two-year period with the possibility for one, one-year extension. Any request for a one-year extension of funding shall require submittal by the PROJECT SPONSOR of a request for extension to the DISTRICT no later than July of fiscal year two of the approved project. This request will then be considered by the DISTRICT Board, whose decision shall be final. In review of these requests, the Board will take into consideration the current status and progress of the project and the ability of the applicant to complete the project within one additional year. (2) Matching Funds: The project sponsor shall clearly identify and enumerate the amount and source of the matching funds it will be using to match the program funds supplied by the District for an approved project. The project sponsor shall provide suitable evidence that it has the matching funds available at the time the project agreement is executed. (3) Agreement Modification: All proposed changes to the project agreement must be submitted to the District in writing by the project sponsor accompanied by a statement of justification for the proposed changes. All project agreement amendments shall be approved by the District Board, except that the Executive Director may approve a minor project agreement amendment for a proj ect within a county with the local District commissioner's concurrence. A minor project amendment shall not change the approved project's category, result in a reallocation of more than 35% of the approved funding of the project among project elements, nor allow for a greater than 35% change in the project scale or scope of work. Project agreement amendments will not include a change to the approved project's location or a change in the approved project's purpose or project type. Agreed changes shall be evidenced by a formal amendment to the project agreement and shall be in compliance with these rules. (4) Project Reporting: The liaison agent will submit quarterly reports to the project manager summarizing the work accomplished since the fast report, problems encountered, percentage of project completion and other appropriate information. These reports shall continue throughout the length of the project period until completion of the project. The report shall be submitted on Form 95-02, "Assistance Program Project Quarterly Status Report," dated 7-30-02, hereby incorporated by reference and available at the District office. A Final Project Report shall be submitted at the completion of the project and shall at minimum include: project summary, photo of completed project, final cost, project benefits to the waterway and location address. (5) Reimbursement Requests: The liaison agent may submit periodic reimbursement requests during the project period in accordance with Rule 66B-2.011, F.A.C. The project manager will approve or disapprove all reimbursement requests. The final payment of program funds will be made upon certified completion of the project by the District. (6) Project Inspection: Upon reasonable request, the project manager shall have the right to inspect the project and any and all records relating to the project. (7) Project Completion: The project shall be completed within three (3) years of the date of the beginning of the District's first fiscal year for which the project was approved. If the completion of a project is impacted by a declared state of emergency and the Board waives this rule section, the extension of time granted shall not exceed one additional three (3) year period. (8) Project Completion Requirements: Upon completion of the project, the liaison agent shall provide the following to the project manager: (a) A Project Completion Certificate, FIND Form No. 90-13 (effective date 7-30-02), hereby incorporated by reference and available from the District office, which certifies that the project was completed in accordance with the project agreement and the final project plans. (b) A final reimbursement request accompanied by all required billing statements and vouchers. 173 (c) Photograph(s) showing the installation of the sign required by Rule 66B-2.013, F.A.C. (d) Photograph(s) of the completed project clearly showing the program improvements. (9) Project Completion Review: The project manager will review the project completion package and will authorize or reject the final reimbursement payment which will include all retained funds from previous requests. Rulemaking Authority 374.976(1) FS. Law Implemented 374.976(1) FS. History—New 12-17-90, Formerly 16T-2.009, Amended 3-21-01, 7-30-02. 3-7-11, 1-27-14,3-25-21. 66B-2.011 Reimbursement. The District shall release program funds in accordance with the terms and conditions set forth in the project agreement. This release of program funds shall be on a reimbursement only basis. The District shall reimburse the project sponsor for project costs expended on the project in accordance with the project agreement. Project funds to be reimbursed will require the submission of a Reimbursement Request Form and required supporting documents, FIND Form No. 90-14 (effective date 7-30-02) hereby incorporated by reference and available from the District office. (1) Authorized Expenditures: Project funds shall not be spent except as consistent with the project agreement cost estimate that was approved by the Board, which shall be an attachment to the project agreement. This cost estimate will establish the maximum funding assistance provided by the District and the percentage of funding provided by each party to the project. The District will pay the lesser of: (a) The percentage total of project funding that the Board has agreed to fund, or (b) The maximum application funding assistance amount. (2) Phase I Reimbursement: In accordance with these rules, reimbursement cannot be made on a Phase I application until a construction contract is executed by the applicant for the construction phase of the project. If the Phase I project is completed but a construction contract is not executed by the three (3) year project deadline, then the District shall only allow one (1) year from the Phase I project deadline to enter into the required construction contract before the Phase I funding is cancelled. (3) Reimbursement Requests: All project costs shall be reported to the District and summarized on the Reimbursement Request Form. All requests for reimbursement shall include supporting documentation such as billing statements for work performed and cancelled payment vouchers for expenditures made. (4) Retainage: The District shall retain ten percent (10%) of all reimbursement payments until final certification of completion of the project. The District shall withhold any reimbursement payment, either in whole or part, for non-compliance with the terms of this agreement. (5) Check Presentations: A District representative shall present the final reimbursement check to the project sponsor during a public commission meeting or public dedication ceremony for the project facility. (6) Recovery of Additional Project Funding: If the project sponsor receives additional funding for the project costs from another source that was not identified in the original application and that changes the agreement cost -share percentage, the project sponsor shall proportionately reimburse the District's program funds equal to the cost -share percentage in the approved project agreement. The project sponsor shall promptly notify the District of any project payments it receives from a source other than the District. Rulemaking Authority 374.976(2) FS. Law Implemented 374.976(1) FS. History—New 12-17-90, Amended 6-24-93, Formerly 16T-2.011, Amended 3-31-99, 7-30-02,3-7-11- 6613-2.012 -30-02,3-7-11. 6613-2.012 Accountability. The following procedures shall govern the accountability of program funds: (1) Accounting: Each project sponsor is responsible for maintaining an accounting system which meets generally accepted accounting principles and for maintaining such financial records as necessary to properly account for all program funds. (2) Quarterly Reports: The project sponsor shall submit quarterly project status reports to FIND in accordance with subsection 66B-2.009(4), F.A.C_ (3) Completion Certification: All required final completion certification documents and materials as outlined in subsection 66B- 2.009(8), F.A.C., of this rule shall be submitted to the District prior to final reimbursement of program funds. (4) Auditing: All project records including project costs shall be available for review by the District or by an auditor selected by the District for 3 years after completion of the project. Any such audit expenses incurred shall be borne entirely by the project sponsor. 174 (5) Project Records: The project sponsor shall retain all records supporting project costs for three years after either the completion of the project or the final reimbursement payment, whichever is later, except that should any litigation, claim, or special audit arise before the expiration of the three year period, the project sponsor shall retain all records until the final resolution of such matters. (6) Repayment: If it is found by any State, County, FIND, or independent audit that program funds have not been used in accordance with this rule and applicable laws, the project sponsor shall repay the misused program funds to the District. Rulemaking Authority374.976(2) FS. Law Implemented 374.976(1) FS. History—New 12-17-90, Formerly 16T-2.012, Amended 7-30-02. 6613-2.013 Acknowledgement. The project sponsor shall erect a permanent sign, approved by the District, at the entrance to the project site which indicates the District's participation in the project. This sign shall contain the FIND logo. In the event that the project sponsor erects a temporary construction sign, this sign shall also recognize the District's participation. If the final product of the project is a report, study or other publication, the District's sponsorship of that publication shall be prominently indicated at the beginning of the publication. If the project results in an educational display, the District's logo and a statement of the District's participation in the project shall be contained in the display. Rulemaking Authority 374.976(2) FS_ Law Implemented 374.976(1) FS. History --New 12-17-90, Formerly 16T-2.013, Amended 2-22-10. 6613-2.014 Small -Scale Spoil Island Restoration and Enhancement Projects. Proposals shall be accepted for the restoration or enhancement of spoil islands and natural islands within the District's waterways for recreational, navigational, educational, and environmental purposes. The applicable provisions of this rule apply to these applications with the following additions or exceptions: (1) Application Procedure — A Request for Proposals procedure will be used to request proposals for consideration. Proposals shall follow the format described in FIND Document #03-02, Call for Proposals — Small -Scale Spoil Island Restoration and Enhancement Program (effective date 7-30-02), hereby incorporated by reference and available from the District office. Proposals may be submitted to the District and considered by the Board at any time during the year. (2) Matching Funds: Small-scale spoil island restoration and enhancement may qualify for up to ninety percent (90%) program funds. The applicant's ten percent (10%) matching funds may include in-kind contribution pursuant to paragraph 66B -2.014(4)(b), F.A.C. (3) Eligibility: All proposals must meet the following eligibility criteria to be considered for funding: (a) Management Plan Compliance: Projects shall be in compliance with the provisions of any Spoil Island Management Plans or other management plans that govern the Project site. (b) Property Control: The Project Sponsor must have written property rights on the Project site to construct and maintain the Project for a minimum of five years. Such property rights can be in the form of a lease, interlocal agreement, use agreement or other legal form approved by the District. The applicant shall include a map clearly delineating the location of all proposed work included in the application. (4) Funds Allocation: Funds shall be allocated pursuant to Rule 6613-2.005, F.A.C., subject to the exceptions identified in this rule, and with the following additions: (a) The District shall fund a maximum of up to $7,500 per project, not to exceed $22,500 per County, per fiscal year. (b) The Project Sponsor may contribute in-kind construction labor; such in-kind construction labor costs will not be counted by the District as exceeding $10.00 per hour. No administrative costs can be incorporated into the Project as Project costs. (c) The funding provided by the District shall only be allocated for specific Project expenses such as construction materials, plant materials, herbicides, etc. The funding provided by the District shall not be allocated for parties, food or beverages. Rulemaking Authority 374.976(2) FS. Law Implemented 374.976(1) FS. History—New 7-30-02, Amended 4-24-06, 3-7-11,3-25-21. 6613-2.015 Small -Scale Derelict Vessel Removal Projects. Proposals shall be accepted for financial assistance for the removal of derelict vessels within the District's waterways. The applicable provisions of this rule apply to these applications with the following additions or exceptions: (1) Application Procedure — Applications shall be submitted on a completed FIND Form No. 05-01 (Small -Scale Derelict 175 Vessel Removal Program) (effective date 4-24-06), and FMD Form No. 01-06 (Small -Scale Derelict Vessel Removal Program — Project Cost Estimate), (effective date 4-24-06), hereby incorporated by reference and available from the District office. Applications may be submitted to the District and considered by the Board at any time during the year. (2) The District shall only fund applicants that have identified derelict vessels to be removed and have a current bid for removal for such vessels, or have completed the removal of such vessels within the 6 months preceding the application, subject to eligibility under these program rules. (3) The program must be sponsored by an eligible government agency or not-for-profit organization. (4) District funding shall be limited to $75,000.00 per county, per year, provided on a reimbursement basis only, The limitation on pre -agreement expenses may be waived by the Board in accordance with subsection 66B-2.005(3), F.A.C. (5) The eligible applicant must provide the remaining matching funds for project completion. In no case shall the District's cost - share contribution exceed 75% of the total project costs. In-house project management or administration costs are not eligible costs or matching costs. (6) The derelict vessel must be located in the District's Waterways, as defined in Rule 66B-2.003, F.A.C. The applicant shall include a map clearly delineating the location of all vessels included in the application. (7) The District shall be recognized when possible in all written, audio or video advertising and promotions as a participating sponsor of the program. (8) The funding provided by the District shall only be allocated for removal of derelict vessels. The District is providing program reimbursement funds only and shall be held harmless with regards to the activities initiated by the applicant. (9) The applicant shall be responsible for all maintenance, management, disposal and operating expenses associated with the program. (10) Funds derived from the sale of any derelict vessels or vessel parts removed through this grant program must be reinvested into the applicant's derelict vessel removal program. (11) The District Board shall make all final decisions concerning the provision of funding for this program. Rulemaking Authority 374.976(2) FS. Law Implemented 374.976(1) FS. History—New 4-24-06, Amended 4-I5-07, 3-25-08, 3-7-11, 1-27-14, 3-25- 21,3-9-23. 66B-2.016 Waterways Cleanup Events. Proposals shall be accepted for financial assistance for the organized removal of refuse within the District's waterways. The applicable provisions of this rule apply to these applications with the following additions or exceptions: (1) Application Procedure: Prior to the event, a request for funding shall be submitted to the District by means of a cover letter detailing the occurrence of the cleanup, contact information, a map of the cleanup locations and the general parameters of the event. In addition, the Applicant will submit a detailed budget clearly delineating the expenditure of all District funds, as well as the overall general budget of the event. Proposals may be submitted to the District and considered by the Board at any time during the year. (2) Availability: The District shall fund a maximum of one clean-up program per waterway, per year within a county, with exception to the provisions of subsections (8) through (10), below. (3) Applicant Eligibility: The clean-up program must be sponsored by a government agency or a registered not-for-profit corporation. (4) Funding: District funding shall be limited to $5,000 per waterway, per county, except for the provisions of subsections (8) through (10), below. (5) The District shall be recognized in all written, online, audio or video advertising and promotions as a participating sponsor of the clean-up program. (6) Funding Eligibility: The funding provided by the District shall only be allocated to reimburse the applicant for out of pocket expenditures related to specific cleanup program expenses such as trash bags, trash collection, haul and landfill fees, gloves, advertising, T-shirts, and related expenses. The funding provided by the District shall not be allocated for parties, meetings, food or beverages. (7) The District Board shall make all final decisions concerning the provision of funding for a clean-up program. In addition to the requirements stated above, a cleanup program implementing all of the following additional incentives will qualify for up to additional $5,000 in clean up funds. (8) The clean-up program budget must provide equal or greater matching funds for all Navigation District funding. 176 (9) The applicant shall tally and report the composition and location of the waterway -related debris, with the goal to show definitive progress in the amount of refuse collected, a reduction in the overall debris in the waterway, or an increase in the number of additional waterway areas included in the clean up. (10) For each additional $1,000 in Navigation District funding, the applicant shall coordinate a minimum of one waterway collection point or clean up area, or an applicant can conduct an additional waterway cleanup program for the waterway areas_ Rulemaking Authority 374.976(2) FS. Law Implemented 374.976(1) FS. History—Nem 3-7-11. 177 EXHIBIT C FLORIDA INLAND NAVIGATION DISTRICT ASSISTANCE PROGRAM Matching Funds Certification Sponsor: Indian River County Board of County Commissioners Project Title: Environmental Learning Center Dock Replacement Part 2 Project #: IR -23-77 Source of Matching Funds: Cash Match Amount of Matching Funds: $50,000 I hereby certify that the above referenced project Sponsor, as of October 01, 2022, has the required matching funds for the accomplishment of the referenced project in accordance with the Waterways Assistance Program Project Agreement between the Florida Inland Navigation District and the Sponsor, dated Project Liaison Name: Wendy Swindell Project Liaison Signature: Date: XS. 837.06 Florida Statutes, False official statements. - Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 F.S. FIND Form No. 95-01 New 9/9/95 (revised 7-30-02) 178 EXHIBIT D FLORIDA INLAND NAVIGATION DISTRICT ASSISTANCE PROGRAM PAYMENT REIMBURSEMENT REQUEST FORM PROJECT NAME: PROJECT SPONSOR: PROJECT #: BILLING #: Amount of Assistance Less Previous Total Disbursements and Less Previous Total Retainage Held Balance Available Funds Requested This Disbursement A. B. Funds Requested C. Less Retainage (-10% unless final) D. Check Amount = Amount of Assistance Less Total Prior and Current Payments Including all retainage held (B+C) _ = Balance Remaining Expense Description (Should correspond to Cost Estimate Sheet Categories in Exhibit "A") FIND - Form No. 90-14 Effective Date 7-30-02) SCHEDULE OF EXPENDITURES Check No. Total Applicant Vendor Name and Date Cost Cost (NOTE: Signature Required on Page 2) FIND Cost 179 FIND - Form No. 90-14 Page Two Expense Description (Should correspond to Cost Estimate Sheet Categories in Exhibit "A") EXHIBIT D (CONTINUED) SCHEDULE OF EXPENDITURES Check No. Total Vendor Name and Date Cost Applicant FIND Cost Cost Certification for Reimbursement: I certify that the above expenses were necessary and reasonable for the accomplishment of the approved project and that these expenses are in accordance with Exhibit "A" of the Project Agreement. " Project Liaison Date *S. 837.06 Florida Statutes, False official statements. - Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 F.S. FIND - Form No. 90-14 Effective Date 7-30-02) 180 EXHIBIT E FLORIDA INLAND NAVIGATION DISTRICT ASSISTANCE PROGRAM Sponsor: Project Title: Project Completion Certification Project #: I hereby certify that the above referenced project was completed in accordance with the Assistance Program Project Agreement between the Florida Inland Navigation District and , dated ,20 , and that all funds were expended in accordance with Exhibit "A" and Paragraph 1 of the Project Agreement. * Project Liaison Name: Project Liaison Signature: Date: *S. 837.06 Florida Statutes, False official statements. - Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 F.S. FIND Form No. 90-13 (Effective Date: 12-17-90, Revised 7-30-02) 181 EXHIBIT F ASSISTANCE PROGRAM PROJECT QUARTERLY STATUS REPORT PROJECT NO. PROJECT TITLE: PROJECT SPONSOR: REPORT PERIOD Oct 1-D _ ; -Mar _ -June _ ; Ju -Sep Report Due: (Dec 30) (March 3) (June 30) (Sep 3 ) WORK ACCOMPLISHED: PROBLEMS ENCOUNTERED: PERCENTAGE COMPLETION: OTHER NOTABLE ITEMS: Form No. 95-02 (Effective Date: 7-30-02) 182 EXHIBIT G ASSISTANCE PROJECT SCHEDULE OCTOBER 20 3- Project Agreement Executed, Project Initiates. DECEMBER 30, 20 3 First Quarterly Report Due. - Use Quarterly Status Report Form Exhibit F http://www.aicw.org/assistance_programs/ MARCH 3 , 20 4- Second Quarterly Report Due. waterway_assistance_programs/index.php JUNE 30, 2024- Third Quarterly Report Due. SEPTEMBER 3 , 2024 - Fourth Quarterly Report Due. DECEMBER 30,2024- Fifth Quarterly Report Due. MARCH 3 20 5- Sixth Quarterly Report Due. JUNE 30, 20 5- Seventh Quarterly Report Due. NOTE: If the project will not be completed and all close out paperwork submitted by September 30th , a request for a ]-year extension of the completion date of the project should be submitted with the June 2025 quarterly report. SEPTEMBER 1-30,20 5- loseout paperwork Closeout paperwork consists of : 1. Project Completion Certificate, FIND Form No. 90-13 (effective date 7-30-02), which certifies that the project was completed in accordance with the project agreement and the final project plans. 2. A final reimbursement request accompanied by all required supporting documentation including bills and canceled payment vouchers for expenditures. 3. Photograph(s) showing the installation of the sign required by Rule 6613-2.013, F.A.C. 4. Photograph(s) of the completed project clearly showing the program improvements. Opg or of format) 5. A Final Project Report (1-2 pages) that shall at minimum include: project name and address, project summary, final cost, and project benefits to the waterway. SEPTEMBER 30, 20 5 - End of Grant. All work must be complete closeout paperwork submitted. October 20 5- finish processing closeout paperwork, perform project inspection and submit final reimbursement check check presentation sponsor. NOTE: ANY MODIFICA TIONS to the PROJECT shall require advance notice and prior written approval of the District. The appropriate timing for modifications to the project cost estimate, Exhibit A, would be after receipt of bids. *NON-COMPLIANCE by the PROJECT SPONSOR with the reporting schedule in Exhibit G may result in revocation of this agreement pursuant to Section 13 of the project agreement. 183 EXHIBff H AljbM.a,icw.orglstudes attd information bids files plans logos **-Rhcument center u617 184 CONSENT INDIAN RIVER COUNTY MEMORANDUM TO: Honorable Board of County Commissioners THROUGH: John A. Titkanich, Jr., County Administrator FROM: Suzanne Boyll, Human Resources Director DATE: October 13, 2023 SUBJECT: Revision to AM -503.1 Holiday Schedule (Personal Day) M6 BACKGROUND: Indian River County has established administrative policies outlining various policies, practices and procedures applicable to County employees. AM -503.1 Identifies the Holidays observed by the County and includes a Personal Day. Staff is requesting the policy be updated to reflect the Personal Day holiday hours may be requested in hourly increments. This is consistent with the use of Personal Day leave under the Teamsters collective bargaining agreement. Staff is also clarifying that the Personal Day for non-union shift employees working a 112 -hour schedule biweekly will equal to one full shift. FUNDING: There is no additional cost. The policy reflects benefits which have already been funded in the FY2023/2024 budget. RECOMMENDATION: Staff respectfully requests the Board of County Commissioners approve staff's recommendation the revise AM -503.1 Holiday Schedule clarifying the Personal Day ATTACHMENTS: AM -503.1 Holiday Schedule 185 :1015MWA It is the policy of the County to observe holidays each year on a schedule determined by the County Administrator. For each observed holiday, employees will receive an average day's wage as holiday pay. COMMENT: 1. A schedule of holidays to be observed during each calendar year will be published by the Human Resources Department. 2. Employees will receive holiday pay regardless of whether they are regularly scheduled to work on that day. An average day's wage is defined as an employee's scheduled bi- weekly pay divided by ten days. Employees normally scheduled to work on the day of the week the holiday is being observed shall receive holiday pay for the number of hours they are normally scheduled to work, even if that is more or less than an average day's wage. 3. Temporary employees, employees on unpaid leave of absence, employees on layoff, and part-time employees hired on or after June 22, 2001, are not eligible for holiday pay. 4. To receive holiday -pay, an employee must be in an "active pay status" on the scheduled work days immediately preceding and immediately following the day on which the holiday is observed. 5. A holiday that occurs on a Saturday or Sunday may be observed on either the preceding Friday or following Monday. 6. Holidays which occur during an employee's annual leave or medical leave will be paid as holiday pay and shall not be charged against such annual leave or medical leave. 7. The County reserves the right to schedule work on an observed holiday in order to maintain essential services to the public. This work schedule will be approved by the department head in advance. 8. Any work performed on an observed holiday by a nonexempt employee will be paid at time and one-half rate, and these hours will not be included when counting toward a 40- hour work week for overtime purposes. 186 SECTION NUMBER EFFECTIVE DATE Human AM -503.1 10-31-2023 ADMINISTRATIVE Resources POLICY SUBJECT PAGE MANUAL Holiday Schedule 1 of 2 It is the policy of the County to observe holidays each year on a schedule determined by the County Administrator. For each observed holiday, employees will receive an average day's wage as holiday pay. COMMENT: 1. A schedule of holidays to be observed during each calendar year will be published by the Human Resources Department. 2. Employees will receive holiday pay regardless of whether they are regularly scheduled to work on that day. An average day's wage is defined as an employee's scheduled bi- weekly pay divided by ten days. Employees normally scheduled to work on the day of the week the holiday is being observed shall receive holiday pay for the number of hours they are normally scheduled to work, even if that is more or less than an average day's wage. 3. Temporary employees, employees on unpaid leave of absence, employees on layoff, and part-time employees hired on or after June 22, 2001, are not eligible for holiday pay. 4. To receive holiday -pay, an employee must be in an "active pay status" on the scheduled work days immediately preceding and immediately following the day on which the holiday is observed. 5. A holiday that occurs on a Saturday or Sunday may be observed on either the preceding Friday or following Monday. 6. Holidays which occur during an employee's annual leave or medical leave will be paid as holiday pay and shall not be charged against such annual leave or medical leave. 7. The County reserves the right to schedule work on an observed holiday in order to maintain essential services to the public. This work schedule will be approved by the department head in advance. 8. Any work performed on an observed holiday by a nonexempt employee will be paid at time and one-half rate, and these hours will not be included when counting toward a 40- hour work week for overtime purposes. 186 9. Holiday pay will be counted as time worked for overtime calculations. 10. This policy does not apply to employees working a "112" hour schedule bi-weekly.* 11. The Personal Day (1) must be used in accordance with departmental vacation policies and must be scheduled and used by the employee within each fiscal year. A Personal Day not scheduled and used each fiscal year will be lost and not carried over or paid out in any fashion. The purpose of this Personal Day off is so employees may schedule time off (in advance) for a day that may be of importance to them on an individual basis. This Personal Day shall only be denied as a result of serious operational needs. Personal Day time off may be requested in hourly increments. 12. The holidays which shall be observed under this policy are: 1. New Year's Day 2. Martin Luther King Day 3. Good Friday 4. Memorial Day 5. Independence Day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day After Thanksgiving 10. Day Before Christmas 11. Christmas Day 12. Personal Day' "The Personal Day for non-union employees working a 112" hour schedule bi-weekly will equal one full shift 187 SECTION NUMBER EFFECTIVE DATE Human AM -503.1 10-31-2023 ADMINISTRATIVE Resources POLICY SUBJECT PAGE MANUAL Holiday Schedule 2 of 2 9. Holiday pay will be counted as time worked for overtime calculations. 10. This policy does not apply to employees working a "112" hour schedule bi-weekly.* 11. The Personal Day (1) must be used in accordance with departmental vacation policies and must be scheduled and used by the employee within each fiscal year. A Personal Day not scheduled and used each fiscal year will be lost and not carried over or paid out in any fashion. The purpose of this Personal Day off is so employees may schedule time off (in advance) for a day that may be of importance to them on an individual basis. This Personal Day shall only be denied as a result of serious operational needs. Personal Day time off may be requested in hourly increments. 12. The holidays which shall be observed under this policy are: 1. New Year's Day 2. Martin Luther King Day 3. Good Friday 4. Memorial Day 5. Independence Day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day After Thanksgiving 10. Day Before Christmas 11. Christmas Day 12. Personal Day' "The Personal Day for non-union employees working a 112" hour schedule bi-weekly will equal one full shift 187 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Board of County Commissioners THROUGH: John A. Titkanich, Jr., County Administrator FROM: Eric Charest, Interim Natural Resources Director SUBJECT: Work Order No. 5 - Morgan & Eklund, Inc., 2024 Beach Profile Monitoring Surveys (WINTER) DATE: October 17, 2023 DESCRIPTION AND CONDITIONS On October 4, 2022, the Board of County Commissioners (BCC) approved a contract with Morgan and Eklund, Inc. (M&E) for Professional Land Surveying and Mapping Services for a two- year term. M&E is the selected County Consultant for professional onshore/offshore hydrographic surveying services. The County's Beach Preservation Plan recommends semi-annual beach profile surveys in order to monitor the seasonal, summer and winter, fluctuations of the beach. Proposed Work Order No. 5 provides winter -time hydrographic surveying (beach profile) services forthe Sectors 3 and 5 Beach Nourishment Projects, the proposed Sector4 Dune Nourishment Project, and additional surveying to begin a 2024 countywide (22.4 miles) monitoring effort. All onshore and offshore beach profile surveys are conducted along the Florida Department of Environmental Protection (FDEP) Range Monuments at approximately 1,000 foot intervals (alongshore) and extend from the vegetated dune seaward to a location approximately 3,000 feet offshore (cross -shore) to an estimated depth of -40 feet. For project tracking purposes, Work Order No. 5 is divided into four (4) separate tasks. Task 1: Winter 2024 Sector 3 Phase 1 Phvsical Monitorine Survev (R-15 to R-60. 46 Onshore/Offshore Profile Lines) The County is required by the FDEP Permit to monitor the physical changes associated with the Sector 3 nourishment project semi-annually to determine the long-term performance of the project and if infrastructure may be vulnerable to storm damage. The hydrographic survey data collected from this task is required for the year 2 post construction monitoring of the Sector 3, Phase 1 Nourishment Project and the year 1 post construction monitoring of the Sector 3, Phase 2 Nourishment Project. Task 1 includes surveying (approx. 7.5 miles) to provide on-going 2024 physical monitoring data for the Sector 3 Beach and Dune Nourishment Project area. Task 1 totals a lump sum amount of $27,597.50. Task 2: Winter 2024 Sector 4 Physical Monitoring Survey (R-61 to R-64, 4 Onshore/Offshore Lines The Sector 4 Dune Nourishment Project is currently in the design and permitting phase and is 188 Page 2 of 3 Winter 2024 Hydrographic Beach Surveys October 31, 2023 BCC Meeting anticipated to provide dune restoration to approximately 2.8 miles of coastline from FDEP Range Monument 55 to R -Monument 70. This stretch of coastline has not been previously nourished by the County and sustained significant erosional impacts from Hurricanes Ian and Nicole in 2022 leading to the upcoming dune nourishment project. The permit the County is to receive for the Sector 4 dune nourishment project is expected to contain requirements for the County to monitor the physical changes associated with a nourishment project on a semi-annual basis to determine the long-term performance of the project and if infrastructure may be vulnerable to storm damage. Task 2 includes surveying (approx. 3/4 mile) for the winter semi- annual monitoring of the Sector 4 Dune Nourishment Project area. Task 2 totals a lump sum amount of $2,434.50. Task 3: Winter 2024 Sector 5 Physical Monitoring Survey (R-65 to R-91, 27 Onshore/Offshore Lines Sector 5 Beach and Dune Nourishment Project was completed in February 2020. The County is required by the FDEP Permit to monitor the physical changes associated with the nourishment project semi-annually to determine the long-term performance of the project and if infrastructure may be vulnerable to storm damage. Task 3 includes surveying (approx. 4.5 miles) required for the winter semi-annual monitoring of the Sector 5 Beach and Dune Nourishment Project area. Task 3 totals a lump sum amount of $16,381.00. Task 4: Winter 2024 Countywide Beach Monitoring (R-92 to R-119, 28 Onshore/Offshore lines) For the shoreline outside of the Sectors 3, 4 and 5 beach project areas, countywide beach profile surveys are necessary to identify areas of chronic beach erosion and determine if infrastructure may be vulnerable to storm damage. The beach profile surveys will then be used to determine appropriate projects to mitigate erosion as identified in the County Beach Preservation Plan, including the upcoming Nourishment Projects. Task 4 includes the remaining countywide (approx. 5.3 miles) beach profile surveys. Task 4 totals a lump sum amount of $16,565.50. Plaaca nnta- The Sebastian Inlet District (District), as part of their Inlet Management Plan, conducts semiannual beach profile surveys along the northern 5.6 miles of the County. The District continues to partner with the County and has agreed to provide their certified 2024 beach profile survey data to the County, resulting in a complete 22.4 mile countywide beach profile survey and a combined annual savings of approximately $30,000 to the County. FUNDING Funding for these tasks comes to a total lump sum fee of $62,978.50. Funding for the individual tasks are as follows: Task 1: Winter 2024 Sector 3 Physical Monitoring Survey (R-15 to R-60, 46 Onshore/Offshore Profile Lines) Funding for Task 1 is budgeted and available for design of the Sector 3 Beach Nourishment Project area in the Coastal Engineering Fund/Sector 3 Post -Construction Monitoring, Account No. 12814472-033490-05054. Task 1 totals a lump sum amount of $27,597.50. Task 2: Winter 2024 Sector 4 Physical Monitoring Survey (R-61 to R-64, 4 Onshore/Offshore 189 Page 3 of 3 Winter 2024 Hydrographic Beach Surveys October 31, 2023 BCC Meeting Lines Funding for Task 2 is budgeted and available for physical monitoring of the Sector 4 Dune Nourishment Project area in the Coastal Engineering Fund/Hurricane Ian —Sector 4 Account No. 12814472-066515-22601, and in the Coastal Engineering Fund/Storm Nicole —Sector 4 Account No. 12814472-066515-23007. Task 2 totals a lump sum amount of $2,434.50. Task 3: Winter 2024 Sector 5 Physical Monitoring Survey (R-65 to R-91, 27 Onshore/Offshore Lines Funding for Task 3 is budgeted and available for physical monitoring of the Sector 5 Beach Nourishment Project area in the Coastal Engineering Fund/Sector 5 Post -Construction Monitoring, Account No. 12814472-033490-15021. Task 3 totals a lump sum amount of $16,381.00. Task 4: Winter 2024 Countywide Beach Monitoring (R-92 to R-119, 28 Onshore/Offshore lines) Funding for Task 4 is budgeted and available for physical monitoring of non -project areas in the Coastal Engineering Fund/Other Professional Services, Account No. 12814472-033190. Task 4 totals a lump sum amount of $16,565.50. Account Name Account No. Amount Coastal Engineering Fund/Sector 3 Post -Construction Monitoring 12814472-033490-05054 $27,597.50 Coastal Engineering Fund/ Sector 4 — Hurricane Ian 12814472-066515-22601 $535.59 Coastal Engineering Fund/ Sector 4—Storm Nicole 12814472-066515-23007 $1,898.91 Coastal Engineering Fund/Sector 5 Beach Renourishment j 12814472-033490-15021 $16,381.00 Coastal Engineering Fund/Other Professional Services 1 12814472-033190 $16,565.50 RECOMMENDATION The recommendation of staff is for the BCC to approve Work Order No. 5 to the Professional Land Surveying and Mapping Services contract with Morgan and Eklund, Inc., in the amount of $62,978.50 and authorize the Chairman to sign the Work Order on behalf of the County. ATTACHMENT 1. Morgan and Eklund IRC Winter 2024 WO No. 5 2. Work Order No. 5 Agreement Execution APPROVED AGENDA ITEM FOR: October 31, 2023 190 Indian River County Public Works Coastal Division Attn: Eric Charest, Natural Resources Manager 1801 27th Street Vero Beach, FL 32960 RE: 2024 Winter Semi -Annual Indian River County Coastal Monitoring Survey; Onshore/Offshore Profiles along FDEP Range Lines R-15 to R-119 Dear Eric: Morgan & Eklund, Inc. (M&E) is pleased to provide you with the following proposal to furnish professional land and hydrographic survey services for the above referenced project. Beach profiles will include R-15 through R-119, a total of 105 beach profile lines. All data collected will be in accordance with the FDEP-approved Physical Monitoring Plan. M&E will provide the County with beach profile data in ASCII file format together with AutoCAD drawings signed by the surveyor. We will also provide FDEP submittal package. The survey will be performed in January/February 2024 with drawings and reports completed by the end of March 2024. In accordance with the scope of work as provided, our prices will be as follows: I. Sector 3 (R-15 to R-60, 46 Onshore/Offshore Profile Lines) Chief Surveyor 4 hours @ $171/hr........................................ $ 684.00 Senior Project Manager 9 hours @ $132/hr........................................$ 1,188.00 Assistant Project Manager 1.5 hours @$85/hr....................................... $ 127.50 Hydrographic Lead Surveyor 16 hours @ $107/hr......................................$ 1,712.00 191 Survey Technician (Boat) 16 hours @$82/hr........................................ $ 1,312.00 Three Man Survey Crew 76 hours @ $180/hr...................................... $ 13,680.00 26' Parker Survey Boat 2 days @ $600/day....................................... $ 1,200.00 Trimble WS500 Inert System 2 days @ $500/day....................................... $ 1,000.00 Single Beam Digital Fathometer 2 days @ $100/day....................................... $ 200.00 Hypack Navigation Software & Computer 2 days @ $120/day....................................... $ 240.00 Trimble RTK 8 days @ $450/day....................................... $ 3,600.00 Beach UTV 8 days @ $100/day....................................... $ 800.00 Senior Survey Computer Technician 18 hours @ $103/hr...................................... $ 1.854.00 TotalI ......................................................... $ 27,597.50 H. Sector 4 (R-61 to R-64, 4 Onshore/Offshore Profile Lines) Chief Surveyor 1 hour @ $171/hr......................................... $ 171.00 Senior Project Manager 1 hour @ $132/hr.........................................$ 132.00 Assistant Project Manager .5 hour @$85/hr.......................................... $ 42.50 Hydrographic Lead Surveyor 2 hours @ $107/hr........................................ $ 214.00 Survey Technician (Boat) 2 hours @ $82/hr......................................... $ 164.00 Three Man Survey Crew 5 hours @ $180/hr........................................ $ 900.00 26' Parker Survey Boat .25 day @ $600/day..................................... $ 150.00 Indian River County 2 10/9/2023 192 Trimble MPS500 Inert System .25 day @ $500/day..................................... $ 125.00 Single Beam Digital Fathometer .25 day @ $100/day..................................... $ 25.00 Hypack Navigation Software & Computer .25 day @ $120/day..................................... $ 30.00 Trimble RTK .5 day @ $450/day....................................... $ 225.00 Beach UTV .5 day @ $100/day....................................... $ 50.00 Senior Survey Computer Technician 2 hours @ $103/hr........................................ $ 206.00 TotalII ........................................................ $ 2,434.50 M. Sector 5 (R-65 to R-91, 27 Onshore/Offshore Lines) Chief Surveyor 2 hours @ $171/hr........................................ $ 342.00 Senior Project Manager 6 hours @ $132/hr........................................ $ 792.00 Assistant Project Manager 1 hour @$85/hr........................................... $ 85.00 Hydrographic Lead Surveyor 9 hours @ $107/hr........................................ $ 963.00 Survey Technician (Boat) 9 hours @ $82/hr......................................... $ 738.00 Three Man Survey Crew 45 hours @ $180/hr...................................... $ 8,100.00 26' Parker Survey Boat 1.25 days @ $600/day.................................. $ 750.00 Trimble MPS500 Inert System 1.25 days @ $500/day.................................. $ 625.00 Single Beam Digital Fathometer 1.25 days @ $100/day.................................. $ 125.00 Indian River County 3 10/9/2023 193 Hypack Navigation Software & Computer 1.25 days @ $120/day.................................. $ 150.00 Trimble RTK 4.5 days @ $450/day.................................... $ 2,025.00 Beach UTV 4.5 days @ $100/day.................................... $ 450.00 Senior Survey Computer Technician 12 hours @ $103/hr...................................... $ 1.236.00 Total III ...................................................... $ 16,381.00 1V. Countywide (R-92 to R-119, 28 Onshore/Offshore Lines) Chief Surveyor 2 hours @ $171/hr........................................$ 342.00 Senior Project Manager 6 hours @ $132/hr........................................ $ 792.00 Assistant Project Manager 1 hour @$85/hr........................................... $ 85.00 Hydrographic Lead Surveyor 9.5 hours @ $107/hr.....................................$ 1,016.50 Survey Technician (Boat) 9.5 hours @$82/hr....................................... $ 779.00 Three Man Survey Crew 45.5 hours @ $180/hr................................... $ 8,190.00 26' Parker Survey Boat 1.25 days @ $600/day.................................. $ 750.00 Trimble MPS500 Inert System 1.25 days @ $500/day.................................. $ 625.00 Single Beam Digital Fathometer 1.25 days @ $100/day..................................$ 125.00 Hypack Navigation Software & Computer 1.25 days @ $120/day.................................. $ 150.00 Trimble RTK 4.5 days @ $450/day.................................... $ 2,025.00 Indian River County 4 10/9/2023 194 Beach UTV 4.5 days @ $100/day....................................$ 450.00 Senior Survey Computer Technician 12 hours @ $103/hr...................................... $ 1.236.00 Total IV ...................................................... $ 16,565.50 TOTAL FIXED PRICE FEE I-IV .................. $ 62,978.50 As always, Morgan & Eklund, Inc. is looking forward to working with you and Indian River County on this project. Sincerely, Douliy signed by David W. Coggin ON: n David W. Coggin, David W. Coggin -11= gin�arga eldundixo MC -Us Date: 2023.10.09163138 -04'00' David W. Coggin, PSM Vice President DWC:dmc Billing: project will be invoiced monthly based on percentage completed Indian River County 5 1019/2023 195 Board of County Commissioners Administration - Building A 1801 27th Street Vero Beach, Florida 32960 Telephone: (772) 567-8000 FAX: 772-778-9391 Project: Post Hurricane Ian Beach Profile Monitoring Surveys WORK ORDER NO. 5 (Hydrographic Surveying) FOR PROFESSIONAL SERVICES AGREEMENT ANNUAL SURVEYING and MAPPING/GIS SERVICES WITH MORGAN AND EKLUND, INC In accordance with Contract No. 2022064 This Work Order No. 4 is in accordance with the existing AGREEMENT dated October 4, 2022 between Morgan and Eklund, Inc., (SURVEYOR) and Indian River County (COUNTY); This Work Order No. 5 amends the agreement as follows: SECTION I — PROJECT LIMITS This Work Order No. 5 is for the SURVEYOR to perform all related field and office Surveying and Mapping services in connection with the Winter 2024 County -wide Onshore/Offshore Beach Profile Monitoring Surveys; Florida Department of Environmental Protection Reference Monuments R-20 — R-119. SECTION II - SCOPE OF SERVICES As agreed upon between SURVEYOR and COUNTY, the SURVEYOR shall provide Professional Land Surveying services to complete all tasks as outlined in this Work Order No. 5; specifically detailed in the attached proposal Exhibit A. SECTION III — TIME FOR COMPLETION & DELIVERABLES/WORK PRODUCT 1. Project shall be completed as follows: a. 100% "Paper" review submittal (final review prior to request for final deliverables) shall be made within 90 calendar days of receipt of Notice to Proceed for review by County Staff prior to preparing the final submittal package. b. Time of FINAL project completion shall be within 10 calendar days of receipt of the County's review comments from the 100% "Paper Submittal". 2. Deliverables -The SURVEYOR shall provide the COUNTY: a. 100% Phase Submittal for COUNTY review and comment. All submittals shall include one (1) paper "hardcopy" along with AutoCad Files and an ASCII file for all 196 Winter 2024 Beach Profile Surveying BCC Agenda October 31, 2023 Page 2 of 3 survey points. COUNTY shall strive to provide review comments within 10 calendar days of the preliminary submittal. b. FINAL Deliverables, one (1) paper "hardcopy" signed and sealed sets. Sheeted and model space (as applicable) AutoCad drawing file in release 2009 through Civil 3D 2013, PDF formats and an ASCII file for all survey points, all electronic files to be on CD. c. Survey set/sheets shall include a cover sheet with location sketch, survey certifications, related title and project number, survey notes, legend and abbreviations and plan view sheets. d. Work Product and digital versions are to be prepared and submitted so that the COUNTY or other consultants can readily use it for the design and analysis of the area, as defined. It shall contain all information necessary for third -party surveyor to independently recreate and/or utilize the survey work. It is acknowledged all final products become property of Indian River COUNTY and will be available for use by the public at large. e. The SURVEYOR'S work product shall meet or exceed the minimum standards as defined by Sections Il, III and IV or the COUNTY will not approve the SURVEYOR'S request for payment. SECTION IV — COMPENSATION The COUNTY agrees to pay, and the SURVEYOR agrees to accept, for the above described services rendered as identified in Sections I, II, III and IV of this Work Order No. 5, for a total lump sum fee of $62,978.50. All and/or any additional services not described hereon shall be pre -approved by the COUNTY. Approved additional services shall be invoiced at the rates disclosed in the approved fee schedule with the SURVEYOR for the contract year(s) of October 4, 2022 through October 3, 2024. All invoicing shall include Work Order No. 5 (WO 5), Contract Number (2022064). Payments shall be in accordance with the original Professional Surveying and Mapping Services Agreement, Contract No: 2022064 with the COUNTY and as stated in Section Il, III and IV hereon. The AGREEMENT is hereby amended as specifically set forth herein. All remaining sections of the AGREEMENT shall remain in full force and effect, and are incorporated herein. 197 Winter 2024 Beach Profile Surveying BCC Agenda October 31, 2023 Page 3 of 3 IN WITNESS WHEREOF the parties hereto have executed these presents this of 2023. OWNER Morgan and Eklund, Inc. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA (Signature) Joseph Earman Chairman Approved by BCC, ATTEST: Ryan L. Butler Clerk of Court and Comptroller (Seal) Deputy Clerk Approved: John A. Titkanich, Jr. COUNTY Administrator Approved as to Form and Legal Sufficiency: William K. DeBraal COUNTY Attorney (Signature) (Printed name and title) Witnessed by: (Signature) day 198 MW CONSENTAGENDA INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 19, 2023 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Budget Director Jennifer Hyde, Purchasing Manager PREPARED BY: Shelby Ball, Purchasing Specialist SUBJECT: Designation of Excess Equipment as Surplus and Authorization for Disposal BACKGROUND: The equipment on the attached list has been determined excess to the needs of Indian River County and requires disposal in accordance with Florida Statutes and Finance Policies. Included in these items are approximately 4,575 square sign post anchors from Traffic Engineering. Staff has determined that these were ordered before our standard sign dimensions were changed several years ago and are no longer needed. The anchors can still be used for their intended purpose with no issues. To offset the cost of their purchase, Staff will post these for sale online to any interested municipality. Any equipment that is not sold to a municipality will be sold via online auction as previously authorized by the Board, and funds received from the sale of these items will be returned to the appropriate accounts. R INnMr.- There is no cost to the County associated with these requests. RECOMMENDATION: Staff recommends the Board declare the items on the Excess List for 103123 Agenda as surplus, and authorize their disposal. ATTACHMENT: Excess List for 103123 199 Excess List for 103123 Dept# Asset Fleet Description YIN/Serial Working Disposal Method 241 30485 Dell Optiplex 7060 6FFNH03 N SELL 245 178600 GE RCNIDDO Remote Base Radio 9641003REVJ N SELL 245 23541 Ma/Comm Portable Radio 9110771 N SELL 245 23540 Ma/Comm Portable Radio 9110770 N SELL 269 28281 Kyocera Taskaga 2551ci N SELL 210 1 18996 331 12000 Ford F250 1FTNF20F6YEB78492 Y SELL 210 21401 105 2003 Ford E35015 Passenger Van IFBSS31LXHB21500 N SELL 210 19315 118 2001 Dodge Dakota 4X2 Extended Cab Truck 1B7GL22X81S351529 y SELL 210 24381 452 2007 Ford F45O IFDXF46Y38EC52689 y SELL 210 25506 140 John Deere 60" 2 -Track Mower TC997SB040390 N SELL 210 26363 41 John Deere 60" 2 -Track Mower I1C9975BKCT070414 N SELL 210 25507 43 John Deere 60" 2 -Track Mower TC997SB040384 N SELL 210 22830 Helen Hanson Playground Equipment I N I DISCARD 300 1 22501 1HP Colorjet Printer SJPEC547004 N SELL 245 3' Square Post Anchors (4,575 qty) y SELL MUNICIPALITIES TO OTHER 200 CONSENT AGENDA INDIAN RIVER COUNTY INTER -OFFICE MEMORANDUM OFFICE OF MANAGEMENT AND BUDGET TO: Members of the Board of County Commissioners DATE: October 20, 2023 SUBJECT: Interfund Borrowing — Fiscal Year 2022/2023 THROUGH: John A. Titkanich, Jr. County Administrator FROM: Kristin Daniels Director, Office of Management & Budget At the end of the fiscal year, it occasionally becomes necessary to cover cash deficits in individual funds with interfund borrowing. Staff anticipates the need for interfund borrowing in the funds below: Interfund borrowing is necessary in most funds due to the fact that the County is awaiting reimbursement from the State or Federal government for various grant eligible expenditures. Staff is requesting approval from the Board of County Commissioners for interfund borrowing in the funds listed above as well as other funds as necessary. Staff Recommendation Staff recommends approval for interfund borrowing as necessary to cover any cash deficits of individual funds that may occur. Distribution: Elissa Nagy, Chief Deputy Comptroller 201 Fiscal Year Fiscal Year Due from Fund Due to Fund 2021/22 2022/23 Est. Metropolitan Planning General Fund - 001 $90,000 $223,000 Organization (MPO) - 124 Beach Restoration Fund - 128 General Fund — 001 $5,750,000 $4,000,000 Community Development Block General Fund - 001 $50,000 $0 Grant (CDBG) - 129 Federal/State Grants Fund - 136 General Fund — 001 $7,000 $0 Fleet Fund - 501 General Fund — 001 $35,000 $0 Interfund borrowing is necessary in most funds due to the fact that the County is awaiting reimbursement from the State or Federal government for various grant eligible expenditures. Staff is requesting approval from the Board of County Commissioners for interfund borrowing in the funds listed above as well as other funds as necessary. Staff Recommendation Staff recommends approval for interfund borrowing as necessary to cover any cash deficits of individual funds that may occur. Distribution: Elissa Nagy, Chief Deputy Comptroller 201 INDIAN RIVER COUN'T'Y OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 18, 2023 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Director, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Ratification of Increase to Purchase Order 94330 BACKGROUND: Blanket Purchase orders are issued at the request of using departments to enable as needed purchases over the course of the fiscal year. The Purchasing Manager may approve purchase orders up to $35,000 (not associated with a bid or contract), and the Administrator is authorized in Section 105.01 of the County Code to approve purchase orders up to $75,000. A significant amount of dealer repairs to Chevrolet vehicles were necessary in the previous fiscal year. The County Administrator had approved work up to $72,700 on Purchase Order 94330 to Auto Partners, LLC, dba Dyer Chevrolet. At the conclusion of the fiscal year, staff was presented with invoices exceeding that amount. To facilitate the processing of 2022/2023 fiscal year invoices by October 27, 2023, as required by the Comptroller, the County Administrator approved an increase to the purchase order to $87,700 on October 11, 2023. Staff now requests the Board ratify that increase above the Administrator's authority. FUNDING• Funds for sublet repairs come from the Fleet Fund/Vehicle Maintenance/Other Contractual Services Account, 50124291-033490. RECOMMENDATION: Staff recommends the Board of County Commissioners ratify the increase of Purchase Order 94330 to $87,700. 202 sm INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET DATE: October 19, 2023 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Director, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Award of RFP 2024007 for Banking and Lockbox Services BACKGROUND: On behalf of the Clerk of the Circuit Court's Comptroller Division, a Request for Proposals ("RFP") was issued for Banking and Lockbox services. The current RFP, awarded by the Board to TD Bank for banking, and Regions Bank for Lock Box services, on October 18, 2o16, and agreement, approved by the Board on November 15, 2016, expire on December 31, 2023. The term of the award of this RFP is three years, with two, two-year renewals available, based on negotiations with the Bank. DISCUSSION: A selection committee comprised of Elissa Nagy, Chief Deputy Comptroller, Raeanne Cone, Assistant Chief Deputy Comptroller, Kristin Daniels, Budget Director, and Bryan Beavers, Utilities Finance Manager, independently reviewed and scored the received proposals, based on the criteria established in the RFP. The committee then met to compile an initial ranking of firms. After discussions, the committee determined no interviews were necessary, and declared the ranking final. The final ranking of firms, and a summary of proposed costs and rates are shown on the table below. Firm Annual Banking Services Base Cost Annual Lock Box Cost Interest Rate Earnings Credit Rate 1. TD Bank $4o,680.24 $15,899.o1 4.8o% 4.00% 2. Synovus Bank $6o,721.48 $31,782.47 5.45% 1.5% 3. Wells Fargo $65715.56 $44973.01 2% 2.75% 4. JP Morgan $33,471.67 1 $32,619.34 1 3.62% 1 3.72% 5. BankUnited $44,785.38 1 $94,700.71 1 4.797% 1 4.26% As part of its proposal, TD Bank indicated all service fees will be waived for the first eight months, and the County will be paid interest on all collected balances for those eight months. No compensating balances will be deducted when calculating interest during that period. JP Morgan, Synovus and Wells Fargo also proposed a waiver of service fees during an initial period of service. 203 FUNDING: Banking service fees are offset by compensating balances. Utilities lockbox fees are charged directly to the Utilities Operating Fund, Customer Service, Other Professional Services Account 47126536-033190. Utilities Operating Funds come from water and sewer sales. Account Number Account Description Fees for FY 23/24 47126536-033190 Utilities/ Customer Service/Other Professional Services $15,899•ol RECOMMENDATION: Staff recommends the Board approve the final ranking of firms, award the RFP to TD Bank, approve the agreement, and authorize the Chairman to execute it, after review and approval by the County Attorney as to form and legal sufficiency. ATTACHMENT Agreement 204 Bank CASH MANAGEMENT MASTER AGREEMENT Customer: INDIAN RIVER COUNTY TD Bank, N.A. ("Bank") provides a broad range of non -consumer cash management products and services to its customers. The customer identified above ("Customer") wishes to use, and Bank is willing to provide to Customer, those services that have been checked below: 1. TD eTreasury Services (Appendix I)........................................................................... 2. TD ACH Origination Services (Appendix II).............................................................. 3. TD Wire Transfer Services (Appendix III) .................................................................. 19 4. TD Sweep Services (Appendix IV) .............................................................................. ❑ 5. TD Positive Pay Services (Appendix V)...................................................................... ❑ 6. TD Controlled Disbursement Services (Appendix VI) ................................................ ❑ 7. TD Lockbox Services (Appendix VII) ......................................................................... 8. TD Digital Express Services (Appendix VIII)............................................................. 9. TD Account Reconcilement Services - Full (Appendix D) ........................................ ❑ 10. TD Account Reconcilement Services — Partial (Appendix X) ..................................... 11. TD Deposit Reconcilement Services (Appendix XI) ................................................... ❑ 12. TD Check Imaging Services (Appendix XII)............................................................... ❑ 13. TD Zero Balance Account Services (Appendix XIII) .................................................. 14. TD Currency Services (Appendix XIV)....................................................................... ❑ 15. TD EscrowDirect Services (Appendix XV)................................................................. ❑ 16. TD Information Reporting File Transmission Services (Appendix XVI) .................... ❑ 17. TD Data Exchange Services (Appendix XVII) ............................................................ 18. TD ACH Third Party Sender Services (Appendix XVIII) ........................................... ❑ 19. TD Image Cash Letter Services (Appendix XIX) ........................................................ ❑ 20. TD Healthcare Remittance Management Services (Appendix XX) ............................. ❑ 21. TD Data Transmission Services (Appendix XXI)........................................................ ❑ 22. TD ACH Positive Pay Services (Appendix XXII)....................................................... 23. TD Currency Services for Smartsafe (Appendix XXIII) .............................................. ❑ I of 54 1018 205 24. TD Electronic Bill Payment Presentment & Payment Services (Appendix XXIV) .... ❑ 25. TD Integrated Payables Processing Services (Appendix XXV).................................. ❑ 26. TD Electronic Lockbox (Bill Payment Aggregation) Services (Appendix XXVI)..... ❑ 27. TD Paymode-X Services (Appendix XXVII)............................................................. ❑ 28. TD Integrated Receivables Services (Appendix XXVIII) ........................................... ❑ The "Cash Management Service(s) " or "Service(s) " shall hereafter mean the cash management service(s) identified above and provided by Bank (and/or Bank's third -party service providers) to Customer pursuant to this Agreement, the Appendices, including Amended Appendices, as defined below, exhibits, Setup Form(s), and any service guides or manuals made available to Customer by Bank. Agreement This Cash Management Master Agreement (this "Agreement") is by and between Bank and Customer. Bank agrees to provide to Customer and Customer agrees to use certain Cash Management Services (as defined above) offered and approved by Bank for Customer's use. Bank and Customer agree that the Cash Management Services will be governed by the general terms and conditions of this Agreement and the rules and procedures applicable to each of the Services (collectively, the "Rules"). The Rules are contained in the Appendices to this Agreement, and are hereby incorporated in and made a part of this Agreement. By signing this Agreement, Customer agrees to be bound by the terms and conditions of this Agreement and all applicable Appendices, as the same may be amended from time to time as further described below. This Agreement becomes effective with respect to a Cash Management Service(s) described herein when this Agreement has been executed without modification by Customer, and the Agreement becomes effective for any subsequent Cash Management Service(s) that Customer may wish to use when any relevant Appendices have been executed without modification by Customer. Bank will provide use of a Cash Management Service when Bank has received all required and properly executed agreements and forms and when Customer has satisfactorily completed Bank's implementation, testing and training requirements, if any, in the use of the Service(s). Customer may not modify any portion of this Agreement or any Appendices to this Agreement without Bank's prior written consent and agreement, and any attempt by Customer to do otherwise shall render Customer's Agreement null and void. The following terms and conditions are applicable to all Cash Management Services provided to Customer hereunder. 1. Definitions. Capitalized terms used in this Agreement and in any Appendix, unless otherwise defined herein or therein, shall have the meanings set forth below: "Access Devices" means collectively all security, identification and authentication mechanisms, including, without limitation, security codes or tokens, PINs, electronic identities or signatures, encryption keys and/or individual passwords associated with or necessary for Customer's access to and use of any Cash Management Services. "Account" means an Account, as such term is defined in the Account Agreement, used in connection with any Cash Management Services. "Account Agreement" means the Business Deposit Account Agreement issued by Bank and governing Customer's deposit relationship with Bank, as the same may be amended from time to time. "AfZiate(s)" means, with respect to any party, any company controlled by, under the control of, or under common control with such party. 2 of54 "Amended Appendix" means an amendment to an Appendix that supplements or revises, but does not revoke in its entirety, a prior Appendix for a particular Service. "Appendix" means a description of the rules and procedures applicable to a particular Service to be provided by Bank to Customer. Each such Appendix, including any Amended Appendix, is incorporated herein by reference and made a part hereof, and all references herein to Agreement shall be deemed to include all Appendices unless otherwise expressly provided. If there is any conflict between the provisions of this Agreement and any Appendix or Amended Appendix, the Appendix or Amended Appendix shall govern, but only to the extent reasonably necessary to resolve such conflict. "Authorized Representative" means a person designated by Customer as an individual authorized to act on behalf of Customer with respect to certain matters and/or authorized to access and use the Services, as evidenced by certified copies of resolutions from Customer's board of directors or other governing body, if any, or other certificate or evidence of authority satisfactory to Bank, including, without limitation, any Customer enrollment or Setup Form(s) completed by Customer. 1018 206 "Bank Internet System" means Bank's Internet - based electronic information delivery and transaction initiation system, as may be offered by Bank from time to time, including but not limited to Bank's eTreasury Services. "Bank Internet System Appendix" means the agreement issued by Bank that governs Customer's use of the Bank Internet System. "Business Day" has the meaning given to it in the Account Agreement. "Calendar Day " has the meaning given to it in the Account Agreement. "Primary Account" means the Account designated by Customer to which any direct Service fees due Bank may be charged in accordance with this Agreement. Unless otherwise agreed upon in writing by Bank, the address for Customer associated with the Primary Account shall be the address to which all notices and other communications concerning the Services may be sent by Bank. "Substitute Check" has the meaning given to it in Section 3(16) of the Check Clearing for the 215' Century Act ("Check 21"), P.L. 108-100, 12 U.S.C. § 5002(16). 2. The Services. 2.1 Bank shall provide to Customer, subject to this Agreement and the applicable Appendix, all Cash Management Services that Customer may request and that Bank may approve from time to time. Bank shall not be required to provide any Services specified in an Appendix unless Customer also provides all information reasonably required by Bank to provide to Customer the Service(s) specified therein. 2.2 Customer, through its Authorized Representative, may use the Services solely in accordance with the terms and conditions of this Agreement and the related Appendices. 2.3 With the exception of scheduled off- peak downtime periods, Bank shall make all reasonable efforts to make the Services available to Customer each Business Day. 2.4 Access to on-line or Internet -based Services may be denied for various reasons, including if invalid Access Devices are used or if the user exceeds the number of invalid attempts allowed by Bank. 2.5 Customer is authorized to use the Services only for the purposes and in the manner contemplated by this Agreement. 2.6 Customer agrees to cooperate with Bank, as Bank may reasonably request, in conjunction with the performance of the Services. 3 of 54 2.7 Customer agrees to comply with the Rules, as they may be amended from time to time by Bank. 2.8 A number of Bank's Services are subject to processing cut-off times on a Business Day. Customer can obtain information on Bank's current cut-off time(s) for Service(s) by reviewing the relevant Service's Setup Form(s), as applicable, or by calling Treasury Management Services Support at 1-866-475-7262, or by contacting Customer's Treasury Management Services Representative. Instructions received after a cut-off time or on a day other than a Business Day will generally be deemed received as of the next Business Day. 2.9 Bank may make changes to this Agreement and any Appendix at any time by providing notice to Customer in accordance with the terms of this Agreement or as may be required by applicable law. Notwithstanding anything to the contrary herein, any Appendix that provides for an alternative form and method for making changes to such Appendix and for providing notice of the same shall govern for that Service. Further, notwithstanding anything to the contrary in this Agreement or in any Appendix, if Bank believes immediate action is necessary for the security of Bank or Customer funds, Bank may immediately initiate changes to any security procedures associated with the Services and provide prompt subsequent notice thereof to Customer. 2.10 In connection with this Agreement and the Services, Customer agrees that it shall present, and Bank shall have a duty to process, only Substitute Checks that are created by financial institutions; provided, however, that this limitation shall not apply to Substitute Checks created with data from Customer pursuant to any Appendix for Services involving the creation of electronic check images using check conversion technology. 3. Covenants, Representations and Warranties. 3.1 Customer represents and warrants that the individual(s) executing this Agreement and any other agreements or documents associated with the Services has/have been authorized by all necessary Customer action to do so, to issue such instructions as may be necessary to carry out the purposes and intent of this Agreement and to enable Customer to receive each selected Service. Each Authorized Representative whom Customer permits to access and use the Services is duly authorized by all necessary action on the part of Customer to (i) access the Account(s) and use the Services; (ii) access any information related to any Account(s) to which the Authorized Representative has access; and (iii) engage in any transaction relating to any Account(s) to which the Authorized Representative has access. 3.2 Bank may unconditionally rely on the validity and accuracy of any communication or transaction made, or purported to be made, by an Authorized Representative and in accordance with the terms of this Agreement. 10188 207 3.3 Customer shall take all reasonable measures and exercise all reasonable precautions to prevent the unauthorized disclosure or use of all Access Devices associated with or necessary for Customer's use of the Services. 3.4 Customer is not a "consumer" as such term is defined in the regulations promulgated pursuant to the Gramm -Leach -Bliley Act, 15 U.S.C. § 6801 et seq., nor a legal representative of a "consumer." 3.5 Customer shall use the Services only for its own lawful business purposes. Customer shall not use the Services for or on behalf of any third party, except as may otherwise be approved by Bank in its sole and exclusive discretion, and as further described in Section 33. Customer shall take all reasonable measures and exercise reasonable precautions to ensure that Customer's officers, employees and Authorized Representatives do not use the Services for personal, family or household purposes, or for any other purpose not contemplated by this Agreement. 3.6 Customer agrees not to use or attempt to use the Services (a) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulation, (b) to breach any contract or agreement by which Customer is bound, or (c) to engage in any Internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, or (d) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement. Customer acknowledges and agrees that Bank has no obligation to monitor Customer's use of the Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of this Agreement. 3.7 Customer and Bank shall comply with (i) all applicable federal, state and local laws, regulations, rules and orders; (ii) the Account Agreement; (iii) all applicable National Automated Clearing House Association ("NACHA") rules, regulations, and policies; (iv) the Uniform Commercial Code; (v) Office of Foreign Asset Control ("OFAC") requirements; and (vi) all applicable laws, regulations and orders administered by the U.S. Department of the Treasury's Financial Crimes Enforcement Network ("FinCEN") (collectively (i) through (vi), "Compliance Laws"). 4. Account Agreement; Service Fees. 4.1 Bank and Customer agree that any Account established by Customer in connection with Services offered by Bank shall be governed by the Account Agreement, including one or more fee schedules issued by Bank for the Account. If there is any conflict between the terms and provisions of this Agreement and the Account Agreement, the terms and provisions of this Agreement shall govern, but only to the extent reasonably necessary to resolve such conflict. 4 of54 4.2 Customer agrees to compensate Bank for all Accounts and Services that Bank provides pursuant to this Agreement, including any Appendices, in accordance with the applicable fee schedules or agreements between Bank and Customer in effect from time to time that apply to the Services (the "Service Fees"). By signing below, Customer acknowledges receipt of the Account Agreement and acceptance of the Service Fees, and agrees to be bound by their terms, as those terms may be amended from time to time in accordance with the terms of this Agreement. 4.3 Customer authorizes Bank to charge the Primary Account for all applicable charges and fees to the extent that such charges and fees are not offset by earnings credits or other allowances for Customer's Account(s). If the balance of available funds in the Primary Account is not sufficient to cover such fees, Bank may charge such fees to any other deposit Account maintained on Bank's records in Customer's name. Customer also agrees to pay all sales, use or other taxes (other than taxes based upon Bank's net income) that may be applicable to the Services provided by Bank hereunder. 4.4 Bank may amend Service Fee(s), in aggregate or individually, at any time. To the extent that such changes adversely affect Customer, Bank will use commercially reasonable efforts to give notice to Customer of such changes, in accordance with applicable law, or as may otherwise be agreed to by the parties. 5. Customer Information. Customer agrees to provide to Bank, before Bank begins providing any Services to Customer, any and all information required to comply with applicable law and Bank's policies and procedures relating to customer identification and authority. Such information may include, without limitation, official certificates of customer existence, copies of Customer formation agreements, business resolutions or equivalent documents, in a form acceptable to Bank authorizing Customer to enter into this Agreement and to receive Services from Bank pursuant hereto, and designating certain individuals as Customer's Authorized Representatives. 6. Software. 6.1 Bank may supply Customer with certain software owned by or licensed to Bank to be used by Customer in connection with the Services ("Software"). Customer agrees that all such Software is and shall remain the sole property of Bank and/or the vendor of such Software. Customer agrees to comply with all of the terms and conditions of all license and other agreements which are provided to Customer by Bank and/or the Software vendor and/or which govern Customer's use of Software associated with the Services. Unless otherwise agreed in writing between Bank and Customer, Customer shall be responsible for the payment of all costs of installation of any Software provided to Customer in connection with the Services, as well as for selection, installation, maintenance and repair of all hardware required on Customer's premises for the successful operation of the Software. 1018 208 6.2 Except as otherwise expressly prohibited or limited by applicable law, Customer shall indemnify, defend and hold harmless Bank, its successors and assigns, from and against any loss, damage or other claim or liability attributable to Customer's unauthorized distribution or disclosure of any Software provided with the Services or any other breach by Customer of any Software license. The provisions of this paragraph shall survive termination of this Agreement. 6.3 Any breach or threatened breach of this Section will cause immediate irreparable injury to Bank, and Customer agrees that injunctive relief, including preliminary injunctive relief and specific performance, should be awarded as appropriate to remedy such breach, without limiting Bank's right to other remedies available in the case of such a breach. Bank may apply to a court for preliminary injunctive relief, permanent injunctive relief and specific performance, but such application shall not abrogate Bank's right to proceed with an action in a court of competent jurisdiction in order to resolve the underlying dispute. 7. Computer Requirements. For certain Cash Management Services, Customer will need to provide, at Customer's own expense, a computer or similar Internet - enabled device, software and Internet or other connections and equipment as needed to access the Services (collectively, the "Computer"). Customer's Internet or other web browser software must support a minimum 128 -bit SSL encryption or other security measures as Bank may specify from time to time. Customer's browser must be one that is certified and supported by Bank for optimal performance. Customer is responsible for the installation, maintenance and operation of the Computer and all related charges, including without limitation all Internet service provider, telephone and other similar charges incurred in connecting to the Services. Customer is responsible for installing and maintaining appropriate virus protection software on Customer's Computer. Bank recommends that Customer routinely scan the Computer using reliable virus protection products, and to remove any viruses found using such products. Bank is not responsible for any errors or failures caused by any malfunction of the Computer. Bank is not responsible for any Computer virus or related problems that may be associated with access to or use of the Services, any Software, the Computer or other Internet access, including but not limited to any virus, Trojan horse, worm, keystroke logger, rootkit, spyware, dishonest adware, crimeware or other malicious or unwanted software or related problems that may be associated with access to or use of the Services, any Software or the Computer. Bank also is not responsible for any losses or delays in transmission of information Customer provides to Bank or otherwise arising out of or incurred in connection with the use of any Internet or other service provider providing Customer's connection to the Internet or any browser software. From time to time, Bank may require that Customer upgrade or install software to the Computer to ensure the proper operation of the Services. Customer agrees to promptly load any such upgrades or additional installations upon Bank's notice to Customer. sofs4 8. Bank Third Parties. 8.1 Customer acknowledges that certain third parties, agents or independent service providers (hereinafter "Third Parties") may, from time to time, provide services ("Third Party Services") to Bank in connection with Bank's provision of the Services to Customer and that accordingly, Bank's ability to provide the Services hereunder may be contingent upon the continuing availability of certain services from such Third Parties. Third Party Services may involve the processing and/or transmission of Customer's data, instructions (oral or written) and funds. In addition, Customer agrees that Bank may disclose Customer's financial information to such Third Parties (i) where it is necessary to provide the Services requested; (ii) in order to comply with laws, government agency rules or orders, court orders, subpoenas or other legal process or in order to give information to any government agency or official having legal authority to request such information; or (iii) when Customer gives its written permission. 8.2 Bank will be responsible for the acts and omissions of its Third Parties in the same manner as if Bank had performed that portion of the Services itself, and no claim may be brought by Customer against such Third Parties. Notwithstanding the foregoing, any claims against Bank (with respect to the acts or omissions of its Third Parties) or its Third Parties shall be subject to the limitations of liability set forth herein to the same extent as if Bank had performed that portion of the Services itself. However, Bank will not be deemed to be the agent of, or responsible for, the acts or omissions of any person (other than its Third Parties), and no such person shall be deemed Bank's agent. 9. Customer Communications; Security Procedures. 9.1 In providing the Services, Bank shall be entitled to rely upon the accuracy of all information and authorizations received from Customer or an Authorized Representative and, where applicable, the authenticity of any signatures purporting to be of Customer or an Authorized Representative. Customer agrees promptly to notify Bank of any changes to any information or authorizations provided to Bank in connection with the Services, and further agrees to promptly execute any new or additional documentation Bank reasonably deems necessary from time to time in order to continue to provide the Services to Customer. 9.2 Customer agrees that it shall be solely responsible for ensuring its compliance with any commercially reasonable security procedures established by Bank in connection with the Services, as such may be amended from time to time, and that Bank shall have no liability for any losses sustained by Customer as a result of a breach of security procedures if Bank has complied with the security procedures. 9.3 Bank shall be entitled to rely on any written list of Authorized Representatives provided to Bank by Customer until revoked or modified by Customer in 1018 209 writing. Customer agrees that Bank may refuse to comply with requests from any individual until Bank receives documentation reasonably satisfactory to it confirming the individual's authority. Bank shall be entitled to rely on any notice or other writing believed by it in good faith to be genuine and correct and to have been signed by an Authorized Representative. Bank may also accept verbal instructions from persons identifying themselves as an Authorized Representative, and Bank's only obligation to verify the identity of such person as an Authorized Representative shall be to call back such person at a telephone number(s) previously provided to Bank by Customer as part of the Account or Services' Setup Form(s). Bank may, but shall have no obligation to, call back an Authorized Representative other than the Authorized Representative from whom Bank purportedly received an instruction. Bank may, but shall have no obligation to, request additional confirmation, written or verbal, of an instruction received from an Authorized Representative via telephone at any time or for any reason whatsoever prior to executing the instruction. Bank may also in its discretion require the use of security codes for Authorized Representatives and/or for receiving instructions or items from Customer. Customer understands and agrees, and Customer shall advise each Authorized Representative that, Bank may, at Bank's option, record telephone conversations regarding instructions received from an Authorized Representative. 9.4 Any security procedures maintained by Bank are not intended to detect errors in the content of an instruction received from Customer or Customer's Authorized Representative. Any errors in an instruction from Customer or Customer's Authorized Representative shall be Customer's sole responsibility. Customer agrees that all security procedures described in this Agreement and applicable Appendix are commercially reasonable and that Bank may charge Customer's Account for any instruction that Bank executed in good faith and in conformity with the security procedures, whether or not the transfer is in fact authorized. 9.5 Customer agrees to adopt and implement its own commercially reasonable internal policies, procedures and systems to provide security to information being transmitted and to receive, store, transmit and destroy data or information in a secure manner to prevent loss, theft or unauthorized access to data or information ("Data Breaches"). Customer also agrees that it will promptly investigate any suspected Data Breaches and monitor its systems regularly for unauthorized intrusions. Customer will provide timely and accurate notification to Bank of any Data Breaches when known or reasonably suspected by Customer and will take all reasonable measures, which may include, without limitation, retaining and/or utilizing competent forensic experts, to determine the scope of and data or transactions affected by any Data Breaches, and promptly providing all such information to Bank, subject to any limitation imposed on Customer by law enforcement or applicable law. 6 of 54 9.6 BANK'S SECURITY PROCEDURES ARE STRICTLY CONFIDENTIAL AND SHOULD BE DISCLOSED ONLY TO THOSE INDIVIDUALS WHO ARE REQUIRED TO KNOW THEM OR AS OTHERWISE PROVIDED BY LAW. IF A SECURITY PROCEDURE INVOLVES THE USE OF ACCESS DEVICES, THE CUSTOMER SHALL BE RESPONSIBLE TO SAFEGUARD THESE ACCESS DEVICES AND MAKE THEM AVAILABLE ONLY TO DESIGNATED INDIVIDUALS. CUSTOMER HAS THE SOLE RESPONSIBILITY TO INSTRUCT THOSE INDIVIDUALS THAT THEY MUST NOT DISCLOSE OR OTHERWISE MAKE AVAILABLE TO UNAUTHORIZED PERSONS THE SECURITY PROCEDURE OR ACCESS DEVICES. CUSTOMER HAS THE SOLE RESPONSIBILITY TO ESTABLISH AND MAINTAIN ITS OWN PROCEDURES TO ASSURE THE CONFIDENTIALITY OF ANY PROTECTED ACCESS TO THE SECURITY PROCEDURE. 10. Fraud Detection / Deterrence; Positive Pay. Bank offers certain products and services such as Positive Pay (with or without payee validation), ACH Positive Pay, and Account blocks and filters that are designed to detect and/or deter check, automated clearing house ("ACH") or other payment system fraud. While no product or service will be completely effective, Bank believes that the products and services it offers will reduce the likelihood that certain types of fraudulent items or transactions will be paid against Customer's Account. Failure to use such products or services could substantially increase the likelihood of fraud. Customer agrees that if, after being informed by Bank or after Bank otherwise makes information about such products or services available to Customer consistent with Section 27 of this Agreement, Customer declines or fails to implement and use any of these products or services, or fails to follow these and other Bank -identified or recommended precautions reasonable for Customer's particular circumstances, Customer will be precluded from asserting any claims against Bank for paying any unauthorized, altered, counterfeit or other fraudulent item that such product, service, or precaution was designed to detect or deter, and Bank will not be required to re -credit Customer's Account or otherwise have any liability for paying such items, except to the extent that Bank has failed to exercise the required standard of care under the Uniform Commercial Code. 11. Duty to Inspect. Customer is responsible for monitoring all Services provided by Bank, including each individual transaction processed by Bank, and notifying Bank of any errors or other problems within ten (10) Calendar Days (or such longer period as may be required by applicable law) after Bank has made available to Customer any report, statement or other material containing or reflecting the error, including an Account analysis statement or on-line Account access. Except to the extent otherwise required by law, failure to notify Bank of an error or problem within such time will relieve Bank of any and all liability for interest upon correction of the error or problem (and for any loss from any subsequent transaction involving the same error or problem). In the event Customer fails to report such 1018 210 error or problem within thirty (30) Calendar Days after Bank made available such report, statement or on-line Account access, the transaction shall be deemed to have been properly authorized and executed, and Bank shall have no liability with respect to any error or problem. Customer agrees that its sole remedy in the event of an error in implementing any selection with the Services shall be to have Bank correct the error within a reasonable period of time after discovering or receiving notice of the error from Customer. 12. Overdrafts; Set-off. Bank may, but shall not be obligated to, complete any transaction in connection with providing the Services if there are insufficient available funds in Customer's Account(s) to complete the transaction. In the event any actions by Customer result in an overdraft in any of Customer's Accounts, including but not limited to Customer's failure to maintain sufficient balances in any of Customer's Accounts, Customer shall be responsible for repaying the overdraft immediately, without notice or demand. Bank has the right, in addition to all other rights and remedies available to it, to set off the unpaid balance of any amount owed it in connection with the Services against any debt owing to Customer by Bank, including, without limitation, any obligation under a repurchase agreement or any funds held at any time by Bank, whether collected or in the process of collection, or in any other Account maintained by Customer at, or evidenced by any certificate of deposit issued by, Bank. Except as otherwise expressly prohibited or limited by law, if any of Customer's Accounts become overdrawn, under -funded or for any reason contain a negative balance, then Bank shall have the right of set-off against all of Customer's Accounts and other property or deposit Accounts maintained at Bank, and Bank shall have the right to enforce its interests in collateral held by it to secure debts of Customer to Bank arising from notes or other indebtedness now or hereafter owing or existing under this Agreement, whether or not matured or liquidated. 13. Transaction Limits. 13.1 In the event that providing the Services to Customer results in unacceptable credit exposure or other risk to Bank, or will cause Bank to violate any law, regulation, rule or order to which it is subject, Bank may, in Bank's sole and exclusive discretion, without prior notice, limit Customer's transaction volume or dollar amount and refuse to execute transactions that exceed any such limit, or Bank may terminate any Service then being provided to Customer. Bank will provide notice of such limits to Customer in accordance with the terms of this Agreement. 13.2 Customer shall, upon request by Bank from time to time, provide Bank with such financial information and statements and such other documentation as Bank reasonably determines to be necessary or appropriate showing Customer's financial condition, assets, liabilities, stockholder's equity, current income and surplus, and such other information regarding the financial condition of Customer as Bank may reasonably request to enable Bank to evaluate its exposure or risk. Any limits established by Bank hereunder shall be made in Bank's sole discretion and shall be communicated promptly to Customer. 7 of 54 14. Term and Termination. 14.1 This Agreement shall be effective when (i) signed by an Authorized Representative of Customer and accepted by Bank, and (ii) Customer delivers to Bank all documents and information, including any Setup Form(s) and electronic data, reasonably required by Bank prior to commencing to provide the Services. Bank will determine the adequacy of such documentation and information in its sole discretion and may refuse to provide the Services to Customer until adequate documentation and information are provided. 14.2 This Agreement shall continue in effect until terminated by either party with thirty (30) Calendar Days' prior written notice to the other. Either party may terminate an Appendix in accordance with the provisions of this Section without terminating either this Agreement or any other Appendix. Upon termination of this Agreement or any Appendix, Customer shall, at its expense, return to Bank, in the same condition as when delivered to Customer, normal wear and tear excepted, all property belonging to Bank and all proprietary material delivered to Customer in connection with the terminated Service(s). 14.3 If an Appendix is terminated in accordance with this Agreement, Customer must contact Treasury Management Services Support for instructions regarding the cancellation of all future dated payments and transfers. Bank may continue to make payments and transfers and to perform other Services that Customer has previously authorized or may subsequently authorize; however, Bank is not under any obligation to do so. Bank will not be liable if it chooses to make any payment or transfer or to perform any other Services that Customer has previously authorized or subsequently authorizes after an Appendix had terminated. 14.4 Notwithstanding the foregoing, Bank may, without prior notice, terminate this Agreement and/or terminate or suspend any Service(s) provided to Customer pursuant hereto (i) if Customer or Bank closes any Account established in connection with the Service(s) that is necessary for the ongoing use of the Service(s) or necessary for Bank to charge Service Fees, including, but not limited to, closure of the Primary Account, (ii) if Bank determines that Customer has failed to maintain a financial condition deemed reasonably satisfactory to Bank to minimize any credit or other risks to Bank in providing Services to Customer, including the commencement of a voluntary or involuntary proceeding under the United States Bankruptcy Code or other statute or regulation relating to bankruptcy or relief of debtors, (iii) in the event of a material breach, default in the performance or observance of any term, or material breach of any representation or warranty by Customer, (iv) in the event of default by Customer in the payment of any sum owed by Customer to Bank hereunder or under any note or other agreement, as may be defined therein, (v) if there has been a seizure, attachment, or garnishment of Customer's Accounts, assets or properties, (vi) if Bank believes immediate action is necessary for the 1018 211 security of Bank or Customer funds or (vii) if Bank reasonably believes that the continued provision of Services in accordance with the terms of this Agreement or any Appendix would violate federal, state or local laws or regulations, or would subject Bank to unacceptable risk of loss. In the event of any termination hereunder, all fees due Bank under this Agreement as of the time of termination shall become immediately due and payable. Notwithstanding any termination, this Agreement shall remain in full force and effect with respect to all transactions initiated prior to such termination. 14.5 TERMINATION IN REGARDS TO F.S. 287.135: Bank certifies that it and those related entities of Bank as defined by Florida law are not on the Scrutinized Companies that Boycott Israel List, created pursuant to s. 215.4725 of the Florida Statutes, and are not engaged in a boycott of Israel. Customer may terminate this Contract if Bank, including all wholly owned subsidiaries, majority- owned subsidiaries, and parent companies that exist for the purpose of making profit, is found to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel as set forth in section 215.4725, Florida Statutes. In addition, if this agreement is for goods or services of one million dollars or more, Bank certifies that it and those related entities of Bank as defined by Florida law are not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to Section 215.473 of the Florida Statutes and are not engaged in business operations in Cuba or Syria. Customer may terminate this Contract if Bank is found to have submitted a false certification as provided under section 287.135(5), Florida Statutes, been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in business operations in Cuba or Syria, as defined by section 287.135, Florida Statutes. 15. Limitation of Liability; Disclaimer of Warranties. 15.1 Customer acknowledges that Bank's fees and charges for the Services are very small in relation to the amounts of transfers initiated through the Services and, as a result, Bank's willingness to provide the Services is based on the limitations and allocations of liability contained in this Agreement. Unless expressly prohibited or otherwise restricted by applicable law, the liability of Bank in connection with the Services will be limited to actual damages sustained by Customer and only to the extent such damages are a direct result of Bank's gross negligence, willful misconduct, or bad faith. In no event shall Bank be liable for any consequential, special, incidental, indirect, punitive or similar loss or damage that Customer may suffer or incur in connection with the Services, including, without limitation, attorneys' fees, lost earnings or profits and loss or damage from subsequent wrongful dishonor resulting from Bank's acts, regardless of whether the likelihood of such loss or damage was known by Bank and regardless of the basis, theory or nature of the action on which a claim is asserted. Unless expressly prohibited by or otherwise restricted by 8 of 54 applicable law, and without limiting the foregoing, Bank's aggregate liability to Customer for all losses, damages, and expenses incurred in connection with any single claim shall not exceed an amount equal to the monthly billing paid by, charged to or otherwise assessed against Customer for Services over the three (3) month -period immediately preceding the date on which the damage or injury giving rise to such claim is alleged to have occurred or such fewer number of preceding months as this Agreement has been in effect. Notwithstanding any of the foregoing, for transactions which are subject to Article 4A of the UCC, Bank shall be liable for such damages as may be required or provided under Article 4A or the Fedwire Regulations, as applicable, except as otherwise agreed in this Agreement. This Agreement is only between Bank and Customer, and Bank shall have no liability hereunder to any third party. 15.2 Except as otherwise expressly provided in Section 8 of this Agreement, Bank shall not be liable for any loss, damage or injury caused by any act or omission of any third party; for any charges imposed by any third party; or for any loss, damage or injury caused by any failure of the hardware or software utilized by a third party to provide Services to Customer. 15.3 Bank shall not be liable or responsible for damages incurred as a result of data supplied by Customer that is inaccurate, incomplete, not current, or lost in transmission. It is understood that Bank assumes no liability or responsibility for the inaccuracy, incompleteness or incorrectness of data as a result of such data having been supplied to Customer through data transmission. 15.4 Bank is not liable for failing to act sooner than required by any Appendix or applicable law. Bank also has no liability for failing to take action if Bank had discretion not to act. 15.5 Bank shall not be responsible for Customer's acts or omissions (including, without limitation, the amount, accuracy, timeliness of transmittal or due authorization of any entry, funds transfer order, or other instruction received from Customer) or the acts or omissions of any other person, including, without limitation, any Automated Clearing House processor, any Federal Reserve Bank, any financial institution or bank, any transmission or communication facility, any receiver or receiving depository financial institution, including, without limitation, the return of an entry or rejection of a funds transfer order by such receiver or receiving depository financial institutions, and no such person shall be deemed Bank's agent. Bank shall be excused from failing to transmit or delay in transmitting an entry or funds transfer order if such transmittal would result in Bank's having exceeded any limitation upon its intra -day net funds position established pursuant to Federal Reserve guidelines or otherwise violating any provision of any risk control program of the Federal Reserve or any nile or regulation of any other U.S. governmental regulatory authority. In no event shall Bank be liable for any damages resulting from Bank's action or inaction which is consistent with regulations issued by the Board of Governors of the Federal Reserve System, operating circulars issued by a Federal Reserve Bank or /0!8 212 general banking customs and usage. To the extent required by applicable laws, Bank will compensate Customer for loss of interest on funds as a direct result of Bank's failure to comply with such laws in executing electronic transfers of funds, if such failure was within Bank's control. Bank shall not be liable for Customer's attorney's fees in connection with any such claim. 15.6 EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT CUSTOMER'S SOLE RISK, AND THE SERVICE IS PROVIDED "AS IS," AND BANK AND ITS SERVICE PROVIDERS AND AGENTS DO NOT MAKE, AND EXPRESSLY DISCLAIM ANY, WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON -INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WITHOUT BREACHES OF SECURITY OR WITHOUT DELAYS. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIABILITY OF BANK AND ITS SERVICE PROVIDERS AND AGENTS IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW. 15.7 The provisions of this Section 15 shall survive termination of this Agreement. 16. Indemnification. 16.1 Except as otherwise expressly prohibited or limited by law, Customer shall indemnify and hold Bank harmless from any and all liabilities, losses, damages, costs, and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel in connection with any investigative, administrative or judicial proceedings, whether or not Bank shall be designated a party thereto) which may be incurred by Bank due to any claim or action by any person, entity or other third -party against Bank to the extent such claim or action relates to or arises out of: (i) any claim of any person that (a) Bank is responsible for any act or omission of Customer or (b) a Customer payment order contravenes or compromises the rights, title or interest of any third party, or contravenes any law, rule, regulation, ordinance, court order or other mandate or prohibition with the force or effect of law; (ii) any failure by Customer to observe and perform properly all of its obligations hereunder or any wrongful act of Customer or any of its Affiliates; (iii) any breach by Customer of any of its warranties, representations or agreements; 9 of 54 (iv) any action taken by Bank in reasonable reliance upon information provided to Bank by Customer or any Affiliate or subsidiary of Customer; and (v) any legal action that Bank responds to or initiates, including any interpleader action Bank commences, involving Customer or Customer's Account(s), including without limitation, any state or federal legal process, writ of attachment, execution, garnishment, tax levy or subpoena. 16.2 The provisions of this Section 16 shall survive termination of this Agreement. 17. RESERVED. 18. Force Majeure. Neither party shall bear responsibility for non-performance of this Agreement to the extent that such non-performance is caused by an event beyond that party's control, including, but not necessarily limited to, fire, casualty, breakdown in equipment or failure of telecommunications or data processing services, lockout, strike, unavoidable accident, act of God, riot, war or the enactment, issuance or operation of any adverse governmental law, ruling, regulation, order or decree, or an emergency that prevents Bank or Customer from operating normally. 19. Documentation. The parties acknowledge and agree that all documents evidencing, relating to or arising from the parties' relationship may be scanned or otherwise imaged and electronically stored and the originals (including manually signed originals) destroyed. The parties agree to treat such imaged documents as original documents and further agree that such reproductions and copies may be used and introduced as evidence at any legal proceedings including, without limitation, trials and arbitrations, relating to or arising under this Agreement. 20. Entire Agreement. Bank and Customer acknowledge and agree that this Agreement and any amendments hereto, all other documents incorporated by reference therein, and Appendices constitute the complete and exclusive statement of the agreement between them with respect to the Services, and supersede any prior oral or written understandings, representations, and agreements between the parties relating to the Services. 21. Amendments. Bank may, at any time, amend this Agreement, the Services or Appendices in its sole discretion and from time to time. Except as expressly provided otherwise in this Agreement, any such changes generally will be effective as provided in the notice to Customer as described below. Customer will be deemed to accept any such changes if Customer accesses or uses any of the Services after the date on which the change becomes effective. Customer will remain obligated under this Agreement and any Appendices, including without limitation, being obligated to pay all amounts owing thereunder, even if Bank amends this Agreement or any Appendices. Notwithstanding anything to the contrary in this Agreement or in any Appendix, if Bank believes 1018 213 immediate action is necessary for the security of Bank or Customer funds, Bank may immediately initiate changes to any security procedures and provide prompt subsequent notice thereof to Customer. As set forth in Section 14.2, Customer may terminate this Agreement or any Appendix upon its receipt of any notice of change that is not acceptable to Customer. 22. Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be unenforceable as written, that provision shall be interpreted so as to achieve, to the extent permitted by applicable law, the purposes intended by the original provision, and the remaining provisions of this Agreement shall continue intact. In the event that any statute, regulation or government policy to which Bank is subject and that governs or affects the transactions contemplated by this Agreement, would invalidate or modify any portion of this Agreement, then this Agreement or any part thereof shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and Bank shall incur no liability to Customer as a result of Bank's compliance with such statute, regulation or policy. 23. Assignment and Delegation. Bank may assign any of its rights or delegate any of its responsibilities in whole or in part without notice to or consent from Customer. Customer may not assign, delegate or otherwise transfer its rights or responsibilities under this Agreement without Bank's prior written consent, which consent Bank may grant or withhold in its sole discretion. 24. Successors. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. 25. Non -Waiver. No deviation from any of the terms and conditions set forth or incorporated in this Agreement shall constitute a waiver of any right or duty of either party, and the failure of either party to exercise any of its rights hereunder on any occasion shall not be deemed to be a waiver of such rights on any future occasion. 26. Governing Law. Any claim, controversy or dispute arising under or related to this Agreement shall be governed by and interpreted in accordance with federal law and, to the extent not preempted or inconsistent therewith, by the laws of the State of New Jersey. 27. Notices. 27.1 Except as otherwise expressly provided in this Agreement, all notices that are required or permitted to be given by Customer (including all documents incorporated herein by reference) shall be sent by first class mail, postage prepaid, and addressed to Bank at the address provided to Customer in writing for that purpose. All such notices shall be effective upon receipt. 27.2 Customer authorizes Bank to, and Customer agrees that Bank may, send any notice or communication that Bank is required or permitted to give to 10.f54 Customer under this Agreement, including but not limited to notice of any change to the Services, this Agreement or any Appendix, to Customer's business mailing address or Customer's business e-mail address as it appears on Bank's records, or electronically by posting the notice on Bank's website, on an Account statement or via facsimile, and that any such notice or communication will be effective and deemed delivered when provided to Customer in such a manner. Customer agrees to notify Bank promptly about any change in Customer's business mailing or Customer's business e-mail address and acknowledges and agrees that no such change will be effective until Bank has had a reasonable opportunity to act upon such notice. Customer agrees that Bank may consider any such notice or communication as being given to all Account owners when such notice or communication is given to any one Account owner. 28. Jury Trial Waiver. BANK AND CUSTOMER EACH AGREE THAT NEITHER BANK NOR CUSTOMER SHALL (1) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER ACTION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY ACCOUNT OR THE DEALINGS OF THE RELATIONSHIP BETWEEN BANK AND CUSTOMER, OR (H) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANOTHER IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER BANK NOR CUSTOMER HAS AGREED WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES. BANK AND CUSTOMER EACH ACKNOWLEDGE THAT THIS WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE. The provisions of this Section 28 shall survive termination of this Agreement. 29. Beneficiaries. This Agreement is for the benefit only of the undersigned parties hereto and is not intended to and shall not be construed as granting any rights to or otherwise benefiting any other person. 30. Recording of Communications. Customer and Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with this Agreement and related to the Services may be recorded and retained by either party by use of any reasonable means, except as otherwise expressly prohibited or limited by applicable law. 31. Facsimile Signature. The parties acknowledge and agree that this Agreement and any Appendix or Amended Appendices may be executed and delivered by facsimile, and that a facsimile signature shall be treated as and have the same force and effect as an original signature. Notwithstanding the foregoing, Bank may, in its sole and exclusive discretion, also require Customer to deliver this Agreement and any Appendix or Amended Appendices with an original signature for its records. 1018 214 32. Relationship. Customer and Bank are not, and Customer and Bank's licensors are not, partners, joint venturers or agents of each other as a result of this Agreement. 33. Third -Party Service Provider Activities. 33.1 Customer As a Third -Party Service Provider. Subject to Bank's prior approval and in its sole and exclusive discretion, Customer may be permitted to use one or more of the Services provided hereunder on behalf of and in conjunction with Accounts that belong to Customer's clients, who may or may not otherwise be customers of Bank, as well as on Customer's own behalf (hereinafter, when acting in such capacity, referred to as "Customer As Service Provider"). Customer shall execute any such other agreement(s) or documents as deemed necessary or appropriate by Bank prior to the initiation or continuation by Customer of any Services in such capacity. Customer agrees that Bank retains the right to reject any request by Customer to engage in Customer As Service Provider activities as well as any transactions initiated by Customer in such capacity, in Bank's sole discretion. In the event Bank approves Customer's use of the Services in the capacity of Customer As Service Provider, then the following shall also apply: (a) Customer represents and warrants to Bank that each Customer client has given Customer authority to access and conduct transactions with respect to its Accounts through use of any of the Services to the same extent as if Customer owned them, including in the capacity of a "third party service provider;" (b) each reference to "Customer" in the Agreement will be deemed to be a collective reference to Customer and each Customer client whose Accounts are included in Bank's implementation of Customer's set-up for the Services; (c) all of the provisions set forth in the Agreement will apply to Customer client's Account(s) as if Customer owned them; (d) each person who is authorized to act on Customer's behalf with respect to a Service is also authorized to act on Customer's behalf to the same extent with respect to the Accounts of each Customer client whose Accounts are included in Bank's implementation of Customer's set-up for that Service; and (e) Customer shall be liable for all monetary, confidentiality and other obligations to Bank under this Agreement as they relate to Customer's use of the Services for itself as well as each such Customer client. Bank may require written confirmation from each Customer client that it has authorized Customer to include its Accounts in Bank's 11 of 54 implementation of Customer's set-up for the Services, and Customer agrees to notify Bank immediately if that authority is revoked or changed. 33.2 Customer Engaging a Third -Party Service Provider. Subject to Bank's prior approval and in its sole and exclusive discretion, Customer may appoint a third -party service provider to act as Customer's agent to use one or more of the Services (hereinafter such third -party to be referred to as "Customer's Third -Party Service Provider"). In such event, all transactions received by Bank from Customer's Third -Party Service Provider are hereby authorized by Customer. All acts and omissions of Customer's Third -Party Service Provider shall be the acts, omissions and responsibility of Customer and shall be governed by the provisions of this Agreement. Customer agrees, jointly and severally with Customer's Third -Party Service Provider, to indemnify and hold Bank harmless from any and all liabilities, losses, damages, costs and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel in connection with any investigative, administrative or judicial proceedings, whether or not Bank shall be designated a party thereto) which may be incurred by Bank relating to or arising out of the acts or omissions of Customer's Third -Party Service Provider on behalf of Customer. Customer and Customer's Third -Party Service Provider shall execute any such other agreement(s) or documents as deemed necessary or appropriate by Bank prior to the initiation or any continuation by Customer's Third -Party Service Provider of any Services on Customer's behalf. Notice of any termination of Customer's Third -Party Service Provider's authority to use one or more of the Services on Customer's behalf shall be given to Bank in writing. The effective date of such termination shall be ten (10) Business Days after Bank receives written notice of such termination. Customer agrees that Bank retains the right to reject any transactions initiated by Customer's Third -Party Service Provider in its sole discretion. 34. Section Headings. The section headings used in this Agreement are only meant to organize this Agreement, and do not in any way limit or define Customer's or Bank's rights or obligations. 35. E -Verify. Bank is registered with and will use the Department of Homeland Security's E -Verify system (www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for the duration of this agreement, as required by Section 448.095, F.S. Bank is also responsible for obtaining an affidavit from all subcontractors, as required in Section 448.095(5)(b), F.S., stating the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. 1018 215 IN WITNESS WHEREOF, Customer and Bank have duly caused this Agreement, including all applicable Appendices, to be executed by an Authorized Representative. Date: INDIAN RIVER COUNTY (Customer) (Address) By: (Signature of Authorized Representative) Print Name: Joseph H. Earman, Title: Chairman By: John A. Titkanich, Jr., County Administrator By: Ryan L. Butler, Clerk of the Circuit Court and Comptroller Attest: By: _ Approved as to Form and Legal Sufficiency: By: William K. DeBraal, County Attorney Governmental TD Bank, N.A. By: (Signature of Authorized Representative) Print Name: Title: 12 of 54 1018 216 EXHIBIT TO CASH MANAGEMENT MASTER AGREEMENT: GOVERNMENTAL ENTITY SERVICES This Exhibit is incorporated by reference into the parties' Cash Management Master Agreement (the "Agreement") and applies to all Cash Management Services made available by Bank to Customer, as a governmental entity or unit. All capitalized terms used herein without definition shall have the meanings given to them in the Agreement. Bank and Customer agree that, notwithstanding anything to the contrary contained in the Agreement, the following terms and provisions shall apply to the Agreement: TERMS AND CONDITIONS 1. Section 26, "Governing Law," of the Agreement is hereby deleted in its entirety and replaced with the following: 26. Governing Law. Any claim, controversy or dispute arising under or related to this Agreement shall be governed by and interpreted in accordance with the laws of the jurisdiction pursuant to which Customer was incorporated or otherwise organized, except where applicable federal law is controlling. In the event of a conflict between the provisions of this Agreement and any applicable law or regulation, this Agreement shall be deemed modified to the extent necessary to comply with such law or regulation. 2. The following new Section 35 is hereby added immediately after Section 34: 35. Additional Representations and Warranties. For purposes of this Section, "Governmental Unit" means: (A) any town, city, county or similar local governmental unit, including without limitation any school district or school administrative unit of any nature, water district, sewer district, sanitary district, housing authority, hospital district, municipal electric district or other political subdivision, agency, bureau, department or other instrumentality thereof, or similar quasi - governmental corporation or entity defined by applicable law, and (B) any state government or any agency, department, bureau, office or other instrumentality thereof. (a) If Customer is a Governmental Unit of the type included in (A) above, Customer and the individual signing below represent, warrant and agree: (i) that this Agreement has been duly executed by the Treasurer, Finance Director, or other officer authorized by law with signatory authority to enter into banking services agreements; (ii) that this Agreement has been duly authorized and approved HC# 4818-1426-3481 v.l 0521 13 of 54 by the governing body of Customer in accordance with applicable law, and, at Bank's request, as evidenced by the certification of the Secretary or other legal authority of the governing body and provided with this Agreement; (iii) that only persons authorized to disburse Customer funds from any Account will be enrolled as Authorized Users having access to wire transfer, ACH or Account transfer functions; (iv) that if this Agreement remains in effect for more than one budget year, upon request of Bank, Customer will ratify and provide evidence of the renewal of this Agreement in subsequent years; and (v) that this Agreement is the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms. (b) If Customer is a Governmental Unit of the type included in (B) above, Customer and the individual signing below represent, wan -ant and agree: (i) that this Agreement has been duly executed by a financial or other officer authorized by law with signatory authority to enter into banking services agreements on behalf of Customer; (ii) that this Agreement has been duly authorized by a senior or similar officer of Customer; (iii) that Customer has complied with all state laws and regulations, including any regulations or policies adopted by Customer with respect to electronic commerce in entering into and performing this Agreement and any related ACH or wire transfer service agreement; (iv) that only persons authorized to disburse Customer funds from any Account will be enrolled as Authorized Users having access to wire transfer, ACH or Account transfer functions; and (v) that this Agreement is the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms. (c) For a Customer of the type included in either (A) or (B) above, Customer and the individual signing below finther represent, warrant and agree: (i) that upon Bank's request, Customer shall provide evidence of those persons authorized to disburse Customer funds as described in (a)(iii) and (b)(iv) 217 above; (ii) that upon Bank's request, Customer will certify its compliance with (a) or (b), as applicable, on an annual or other periodic basis; and (iii) that Customer will provide notice to Bank if any person authorized to disburse Customer fimds as described in (a)(iii) and (b)(iv) is no longer so authorized or his/her position of such authority is terminated for any reason. HC# 4818-2426-3481 v.l 0511 3. Effectiveness. Customer agrees to all the terms and conditions of this Exhibit. The liability of Bank under this Exhibit shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Exhibit shall remain in full force and effect until such time as a different or amended Exhibit is accepted in writing by Bank or the Cash Management Master Agreement is terminated. Remainder of page intentionally left blank. 14 of 54 218 �-.1.1_l_I, APPENDIX I TD eTREASURY SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and governs Customer's use of the Bank Internet System (the "Services" or "eTreasury"). All capitalized terms used herein without definition shall have the meanings given to them in the parties' Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Definitions. "Account(s) " means, with respect to eTreasury, a checking, regular statement savings, money market deposit, certificate of deposit, investment or commercial loan or line of credit account(s) Customer maintains with Bank for business or non -consumer purposes that is designated by Customer for use with the Services, as described below. "Account Agreement" means, in addition to the meaning contained in the parties' Cash Management Master Agreement, any and all agreements between Customer and Bank which govern Customer Accounts (as defined above) and which were provided to Customer when Customer opened its Account(s), or any other documents governing Customer's Account(s), each as may be amended from time to time. "Administrator" or `Account Administrator" means Customer's employee(s) or other person(s) that Customer (or any Administrator designated by Customer) designates on the Services' Setup Form(s) (or by on-line changes to such designations as described below) as being its Authorized Representative, or as authorized to act on Customer's behalf, with respect to the Services. "Authorized User" means any person Customer's Administrator designates as being authorized to access or use any of the Services on Customer's behalf. "Login ID" means the electronic identification, in letters and numerals, assigned to Customer by Bank or to any additional Authorized Users designated by Customer's Account Administrator. "Payment" means a transfer of fimds to or from Customer's Account(s). 2. Services. 2.1 This Appendix describes the terms and conditions under which Bank will provide Customer with access to and use of any of the electronic information delivery and transaction initiation services that Bank makes available using the Bank Internet System. 2.2 By accessing the Services with the Access Devices (as defined in the Cash Management Master Agreement), Customer may perform any or all of the Services described in this Appendix and selected for use in the Services' Setup Form(s) and that Bank has approved for Customer's use. Bank reserves the right to reject Customer's Services' Setup Form(s), schedules and other required documents and to refuse Customer access to or use of the Services for any reason and in Bank's sole discretion. Bank may, in its sole and exclusive discretion, introduce new features of the Services from time to time but is not required to notify Customer of the availability of any such new features. 2.3 By subscribing to the Services, Customer will have access to the Services' basic features, which include but may not be limited to, in Bank's sole and exclusive discretion, the following: 2.3.1 Previous -Day Balance Reporting. Previous -Day Balance Reporting allows Customer to review the balances and transaction history in Customer's checking, savings, money market deposit and loan Account(s) for such period of time as described in the Services' Setup Form(s). Customer may also view images of deposit tickets, deposit items, paid checks and return deposited items. This information may be viewed upon implementation of the Services. The scope of the time periods for which transactional history and check images may be viewed (including pre -implementation periods) may vary and depend upon various factors, such as when Account(s) were opened and when the Services were first implemented and set-up. 2.3.2 Real -Time Balance Reporting. Real -Time Balance Reporting allows Customer to review current Account balance(s) and transaction activity in real-time. 2.3.3 Book Transfers. Book Transfers allows Customer to make intra -Bank fund transfers between Customer's checking, savings and loan Accounts. 15 of 54 0522 219 2.3.3.1 General. Book Transfers may be made as one-time or recurring, same-day or in the future. Book Transfers may also be initiated from (i) one -Account -to -one -Account, (ii) one -Account -to -many - Accounts, or (iii) many -Accounts -to -one -Account. Recurring Book Transfers may utilize one of several repeating frequency options (weekly, monthly, etc.), as set forth in the Services. Book Transfer templates may be created and saved for frequently executed transfers. Pending Book Transfers and templates may be edited or deleted (cancelled) through the Services by Authorized Users at any time prior to the Business Day on which the associated transfer is scheduled to occur. Book Transfer amounts and the order in which such transfers occur are limited to the available balance in the Account(s) on the effective date of the transfer. For same-day transactions, Customer will need to have a sufficient available balance in the Account from which funds are to be transferred to cover the amount of the Book Transfer. For future or recurring Book Transfers, Customer will need to have sufficient available funds on the day the transaction is to occur. The number of Book Transfers from interest bearing checking and savings Accounts are subject to the terms of the Account Agreement and federal regulations. Book Transfers that Customer transmits by Bank's cut-off time as set forth on the Services' designated website or the Services' Setup Form(s) on a Business Day will be posted to the Account as of that Business Day; however, a request (whether a same-day funds transfer or a future -dated transfer) may not result in an immediate transfer of funds or immediate availability because of the time required to process the transaction. Customer is solely responsible for the review of the previous day's transaction report and the status of the Book Transfer request within the Services to ensure that the transaction was processed. Only Book Transfers initiated through the Services will be displayed on the Services' "Transfer" reports tab. All transfers are subject to the Account Agreement. 2.3.3.2 Future -Dated Book Transfer. In conjunction with Book Transfers, a request to transfer funds between Customer's Accounts may be initiated and approved for a future date. The future transfer date may be scheduled for such date in advance as may be permitted from time to time by Bank and as set forth within the Bank Internet System. Future -dated transfers may be scheduled as a one-time request or a recurring request in a pre -determined amount, based on the instructions entered by Customer with the request. Future -dated Book Transfers will be initiated on the Business Day requested by Customer, not on the date Customer entered the transaction using the Services. 2.3.4 Stop Payment. Stop payments of checks drawn on Customer's Account(s) are subject to the terms and conditions of the Account Agreement. Notwithstanding anything in the Account Agreement to the contrary, Customer may use the Services to initiate stop payment orders for an individual check or a range of checks. Bank shall have no responsibility for losses resulting from any delay in Bank's receipt of stop payment orders transmitted by means of the Bank Internet System or for Customer not taking additional actions when a response message from the Bank Internet System indicates a response other than a successful confirmation. Customer must provide Bank with the EXACT CHECK NUMBER OR RANGE OF CHECK NUMBERS. When known, Customer should also provide the EXACT AMOUNT OF THE CHECK. If the check number is incorrect in any way or the amount of the check is inaccurate by one cent or more in the stop payment order, payment will not be stopped and Bank will not be responsible for resulting losses. All other information must be reasonably accurate. Requests are generally effective when successfully entered and submitted by Customer via the Services. Notwithstanding the foregoing, Customer understands that if the stop payment request comes too late for Bank to have a reasonable time to act on it prior to paying, settling for, posting or becoming accountable for the check described in the request, then Customer's stop payment request shall be of no effect. Stop payments requested using the Bank Internet System are effective for three hundred sixty-five (365) Calendar Days unless renewed before the end of the 365 -day period. Customer is solely responsible for confirming the status of a stop payment order. Except as otherwise provided by Compliance Laws or the terms of the Cash Management Master Agreement, Customer shall not have the right to stop payment on or recall any electronic fund transfers or similar payment order or transfer request given hereunder after it has been transmitted to Bank. Only stop payment orders initiated or recalled through the Bank Internet System will be displayed on the Bank Internet System's Stop Payments" screen. Stop payment orders that are not initiated through the Bank Internet System may also be cancelled through the Bank Internet System. 2.3.5 E -Learning. E-Leaming is a self -paced, interactive educational tool available via the Services that Customer may use to learn more about the various features or modules related to the Services, as well as how to use them. 2.3.6 Customizable Dashboard. Using this feature, Customer can configure and save Account balance views, as well as command one -click access to detailed information, balance and payment reports, and high -use transaction initiation features. It is Customer's responsibility to view the "Dashboard" for Bank notices when designating another section of the Bank Internet System as the desired landing page. 2.3.7 FedWire 1031 Drawdown Request Origination. When made available by Bank, Customer may originate an outgoing service message to a specified third -party financial institution ("Receiving Financial Institution") to request a transfer of funds from an account at the Receiving Financial Institution to Customer's Account at Bank via FedWire (a method of electronic funds or wire transfer operated by the Federal Reserve System for participating financial institution members). Customer is responsible for completing all required information, which may include, but is not limited to, the following: the routing number of the Receiving Financial Institution, the account number at the Receiving Financial Institution and the amount of the requested wire drawdown. Bank shall have no 16 of54 0522 220 responsibility for losses resulting from any action or failure to act by Receiving Financial Institution. 2.4 In addition to the Services as described in this Appendix and/or in the Services' Setup Form(s), additional features, modules or other Cash Management Services related to eTreasury may be offered from time to time by Bank, in its sole and exclusive discretion, including but not limited to the following: 2.4.1 Wire Transfers. Wire transfers are subject to the terms and conditions of the TD Wire Transfer Services Appendix. Once approved by Bank for use by Customer, this Service allows Customer to transfer funds electronically using the Fedwire or similar funds transfer system, typically from Customer's Account(s) to other account(s) with Bank or to account(s) at other banks. Domestic or foreign wire transfers entered through the Services will be processed as set forth in the TD Wire Transfer Services Appendix. 2.4.2 ACH Originations. ACH originations are subject to the terms and conditions of the TD Automated Clearing House (ACH) Origination Appendix, the TD Third -Party Sender Services Appendix or the TD ACH Third Party Service Provider Agreement, as applicable. Once approved by Bank for use by Customer, this Service allows Customer to initiate and approve ACH transactions that Customer desires Bank to enter into the ACH network on Customer's behalf. ACH transactions entered through the Services will be processed and settled) as set forth in the TD Automated Clearing House (ACH) Origination Appendix, the TD Third -Party Sender Services Appendix or the TD ACH Third Party Service Provider Agreement, as applicable. 2.4.3 File Transfers. File transfers is a method for Customer and Bank to send and receive reports and files (including, but not limited to, ACH, Reconciliation, Lockbox, and BAI files) to each other through the Internet and are subject to the terms and conditions of applicable Appendices. Such reports and files may also be auto -generated and auto -delivered. 3. Hours of Access. Customer generally may access the Services 24 hours a day, seven (7) days a week. Customer may not be able to access some or all of the Services from time to time, however, during any special or other scheduled maintenance periods, or during emergencies, interruptions or delays due to causes beyond Bank's control. 4. Account Designation. 4.1 Customer may designate any of Customer's Accounts maintained with Bank for business or non -consumer purposes for use with the Services. Generally, the taxpayer identification number for each Account must be the same, and each Account is subject to the other conditions set forth in this Appendix, except as Bank, in its sole discretion, may otherwise permit. Bank reserves the right to deny any Account designation for use with the Services in its sole discretion. 4.2 Customer may at any time add or delete any Account that Customer has designated for use with any of the Services, or change the Services associated with any Account, by notifying Bank in writing. 5. Administrator(s) and Authorized Users. 5.1 Customer shall designate Administrator(s) with Bank as set forth in the Services' Setup Form(s). Customer is solely responsible for designating its Administrator(s). 5.2 The Administrator(s) may designate other Administrators and/or Authorized Users. Customer accepts as its sole responsibility the Administrator's designation of other Administrators and Authorized Users. Customer understands that the Administrator(s) will control, and Customer authorizes the Administrator(s) to control, access by other Administrators and Authorized Users of the Services through the issuance of Access Devices. The Administrator(s) may add, change or terminate Customer's Authorized User(s) from time to time and in his/her sole discretion. Bank does not control access by any of Customer's Authorized Users to any of the Services. If Customer designates more than one (1) Administrator, Bank recommends that Customer manage its use of the Services and its Administrators by requiring dual control to set up new Authorized Users. Bank also recommends that Customer review and assign limits for Authorized Users that create and/or approve wire transfers and ACH transactions, as established on the Services' Setup Form(s). In the event that Bank, in its sole and exclusive discretion, assists Customer in any way with the establishment, addition or general set-up of Authorized Users, Customer understands and agrees that the Administrator(s) shall remain responsible for verifying the accuracy thereof and shall otherwise control access by any of Customer's Authorized Users to any of the Services. 5.3 Customer will require each Administrator and each Authorized User to comply with all provisions of this Appendix and all other applicable agreements. Customer acknowledges and agrees that it is fully responsible for the failure of any Administrator or any Authorized User to so comply. Customer is responsible for any Payment, transfer and other use of the Services and charges incurred by any Administrator and any Authorized User, even if such Administrator or Authorized User exceeds his/her authorization. Bank recommends that Customer require its Administrator(s) to review all entitlement reports available through the Services with respect to Customer's Authorized User(s). 5.4 Customer acknowledges and agrees that an Authorized User is not permitted to authorize other persons/entities to use its Access Devices. Notwithstanding the foregoing, if an Authorized User does authorize other persons/entities to use the Authorized User's Access Devices in any manner, such authorization will be considered by Bank as unlimited in amount and manner, and Customer is responsible for any transactions made by such persons/entities, until Customer's Administrator has 17 of 54 0522 221 deactivated the subject Authorized User's Access Devices. Bank will not be liable for and will not reimburse Customer for any losses that may occur as a result of this authorized use of an Authorized User's Access Devices. 5.5 Whenever any Authorized User leaves Customer's employ or Customer otherwise revokes the authority of any Authorized User to access or use the Services, the Administrator(s) are solely responsible for de- activating such Authorized User's Access Devices. Customer shall notify Bank in writing whenever a sole Customer Administrator leaves Customer's employ or Customer otherwise revokes a sole Administrator's authority to access or use the Services. 6. Access Devices; Security Procedures. 6.1 Upon successful enrollment, Customer can access the Services from Bank's designated website by using Customer's Computer or, as may be permitted by Bank from time to time in its sole discretion and in accordance with Bank's terms and conditions for such access, using mobile or other Internet -enabled system(s) or device(s), along with the Services' security procedures as described from time to time. A company ID assigned to Customer by Bank, a unique Login ID and an individual password will be used for log -in by Customer's Administrator(s) and Authorized User(s). The Administrator(s) and Authorized User(s) must change his or her individual password from time to time for security purposes, as prompted by the Bank Internet System or more frequently (subject to the additional security procedures described below). 6.2 Customer acknowledges that the Administrator(s) will, and Customer authorizes the Administrator(s) to, select other Administrators and Authorized Users by issuing to any person a unique Login ID and password (subject to the additional security procedures described below). Customer further acknowledges that the Administrator(s) may, and Customer authorizes the Administrator(s) to, change or de -activate the unique Login ID and/or password from time to time and in his or her sole discretion (subject to the additional security procedures described below). 6.3 Customer acknowledges that, in addition to the above individual passwords, access to the Services includes, as part of the Access Devices, additional security procedures, including as described below: 6.3.1 Additional security procedures include a risk-based authentication security procedure for Customer, including Customer's Administrator and Authorized Users. This additional security procedure involves an additional credential for each user that is in addition to Login IDs and individual password security (hereinafter "Enhanced Authentication Security," and/or "Enhanced Log -in Security"). With Enhanced Authentication Security, additional information regarding each Authorized User's Computer and method of website access will be collected and validated automatically with the set-up process. An electronic access identity will be created for each Authorized User by combining a number of key identification points, such as IP address, Internet service provider, PC and browser settings, time of day and geographic location. These access identities are used by Bank to authenticate Authorized Users. Further authentication may occur automatically due to the detection of unusual source occurrences in relation to that access identity. 6.3.2 An additional security procedure incorporates use of a physical security device or token ("Token") for, by way of example only, initial log -in and/or certain transactional or administrative functionality. A Token may be issued to any Authorized User(s), for example, for use in initiating and/or approving ACH transactions and wire transfers, to log in to the Services, as well as with certain administrative functionality, and/or for the creation of ACH and wire templates. Physical security of each Token is Customer's sole responsibility. With the Token, each Authorized User will receive a PIN number that the Authorized User must keep in a secure place. When an Authorized User (or Administrator) leaves Customer's employ, his or her Login ID must be deleted by Customer (or by Bank upon Customer's request) and, if a Token had been issued to such Authorized User (or Administrator), Bank must be promptly notified so that Bank may deactivate such Authorized User's (or Administrator's) Token. Any additional Authorized User requiring a Token must be authorized, in writing by Customer to Bank, for Token creation or re-creation and deployment. If applicable, fees may be assessed for additional Tokens. 6.4 Customer further acknowledges and agrees that all wire transfers and ACH transactions initiated through the Services require "dual control" or separation of duties. With this additional security feature, one Authorized User will create, edit, cancel, delete and restore ACH batches or wire transfer orders under his/her unique Login ID, password and Token; a second different Authorized User with his/her own unique Login ID, password and Token will be required to approve, release or delete ACH batches or wire transfer orders. 6.5 Customer accepts as its sole responsibility the selection, use, protection and maintenance of confidentiality of, and access to, the Access Devices. Customer agrees to take reasonable precautions to safeguard the Access Devices and keep them confidential. Customer agrees not to reveal the Access Devices to any unauthorized person. Customer further agrees to notify Treasury Management Services Support immediately at 1-866-475- 7262 if Customer believes that the confidentiality of the Access Devices has been compromised in any manner. 6.6 The Access Devices identify and authenticate Customer (including the Administrator and Authorized Users) to Bank when Customer accesses or uses the Services. Customer authorizes Bank to rely on the Access Devices to identify Customer when Customer accesses or uses any of the Services, and as signature authorization for any Payment, transfer or other use of the Services. Customer acknowledges and agrees that Bank is authorized to act on any and all communications or instructions received using the Access Devices, where such communications were provided to Bank in accordance with 18 of54 0522 222 the security procedures and other terns as set forth in the Cash Management Master Agreement, regardless of whether the communications or instructions are authorized. Bank owns the Access Devices, and Customer may not transfer them to any other person or entity. 6.7 Customer acknowledges and agrees that the Access Devices and other security procedures applicable to Customer's use of the Services and set forth in this Appendix, as well as such security best practices as described by Bank from time to time and made available on the Bank Internet System, are a commercially reasonable method for the purpose of verifying whether any Payment, transfer or other use of the Services was initiated by Customer. Customer also agrees that any election Customer may make to change or waive any optional security procedures recommended by Bank is at Customer's risk and that any loss resulting in whole or in part from such change or waiver will be Customer's responsibility. Customer further acknowledges and agrees that the Access Devices are not intended, and that it is commercially reasonable that the Access Devices are not intended, to detect any errors relating to or arising out of a Payment, transfer or any other use of the Services. 6.8 If Customer has reason to believe that any Access Devices have been lost, stolen or used (or may be used) or that a Payment or other use of the Services has been or may be made with any Access Devices without Customer's permission, Customer must contact its Administrator and Bank. In no event will Bank be liable for any unauthorized transaction(s) that occurs with any Access Devices, where such communications or instructions were provided to Bank in accordance with the security procedures and other terms as set forth in the Cash Management Master Agreement. 6.9 Bank may, from time to time, propose additional or enhanced security procedures to Customer. Customer understands and agrees that if it declines to use any such additional or enhanced procedures, it will be liable for any losses that would have been prevented by such procedures. Notwithstanding anything else contained in this Appendix, if Bank believes immediate action is required for the security of Bank or Customer fiords, Bank may initiate additional security procedures immediately and provide prompt subsequent notice thereof to Customer. 7. Debiting Customer's Account(s). Customer authorizes Bank to charge and automatically deduct the amount of any Payment from Customer's Account(s) (or any other Account that Customer maintains with Bank, if necessary), in accordance with the Cash Management Master Agreement and the Account Agreement. 8. Electronic Statements. 8.1 As an eTreasury user, and subject to Bank's approval and applicable set-up and enrollment requirements, Customer may elect to stop or resume the mailing of paper statements for eligible Accounts by requesting this feature from Bank. 8.2 Only Accounts accessible via the Services may be enrolled for electronic statement delivery. Eligible Accounts are displayed on the "Statements" page of the Services. If Customer currently receives a consolidated periodic statement that includes multiple Accounts and Customer selects electronic statement delivery, all Accounts shown on the consolidated statement will be automatically enrolled for electronic statement delivery. For joint Accounts, only one Account owner need enroll for electronic statement delivery; provided, that each Account owner must separately enroll if that Account owner wishes to receive and have access to its Account statements electronically. 8.3 Customer's electronic statement will generally be available within 24 hours after the statement cut-off date. The statement cut-off date for Customer's electronic statement is the same as Customer's paper statement. Once made available as described herein, the information contained in Customer's electronic statement shall be deemed to have been delivered to Customer personally, whether actually received or not. Customer may view, print and download current statements and such period of statement history as set forth on the Bank Internet System. To view or print an electronic statement, Customer must have an appropriate version of Adobe Acrobat software installed on Customer's Computer sufficient to support access to a PDF file. 8.4 At Customer's request, Bank will send Customer a paper copy of Customer's electronic statement previously delivered through the Services at any time. Bank's standard fee then in effect and charged for paper delivery of copies of Account statements will apply. A request for a paper copy does not cause a termination of the electronic statement feature. A paper copy can be obtained until the copy is no longer required to be maintained by Bank as a record for the designated Account under applicable law or regulation. 8.5 Customer may revoke consent for the electronic statement feature for Customer's Accounts at any time by contacting Customer's Relationship Manager. Electronic posting of Customer's electronic statement on the Services' site and transmission of related email notices will continue until: (i) termination of the electronic statement feature; (ii) termination of Customer's designated Accounts with Bank; or (iii) termination of this Appendix, the Cash Management Master Agreement or Customer's use of the Services. 8.6 Bank may discontinue the electronic statements feature at any time in Bank's discretion and resume mailing paper statements to Customer. Bank may also add, modify or delete any feature of the electronic statements feature in Bank's discretion. Bank will provide Customer with notice of any change or termination in the electronic statement feature in accordance with the terms of the parties' Cash Management Master Agreement. 9. Alerts. 19 of54 0522 223 9.1 The Services allow Customer to voluntarily choose alert messages regarding Customer's Account(s), including but not limited to messages to alert Customer about high or low Account balance thresholds, debit or credit transactions cleared, and payment status for ACH and wire transactions. Bank may add new alerts from time to time, or cancel existing alerts. If Customer has opted to receive an alert that is being canceled, Bank will notify Customer in accordance with the terms of the parties' Cash Management Master Agreement. Each alert has different options available, and Customer will be asked to select from among these options upon activation of Customer's alerts service. 9.2 Voluntary Alerts. 9.2.1 Electronic alerts will be sent to the email address Customer has provided as Customer's primary email address for the Services or via the Services' secure messaging feature. If Customer's email address changes, Customer is responsible for informing Bank of the change. Customer can also choose to have alerts sent to a secondary email address. Changes to Customer's primary and secondary email addresses will apply to all of Customer's alerts. 9.2.2 Customer understands and agrees that Customer's alerts may be delayed or prevented by a variety of factors. Bank will use commercially reasonable efforts to provide alerts in a timely manner with accurate information. Bank neither guarantees the delivery nor the accuracy of the contents of any alert. Customer also agrees that Bank shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by Customer or any third party in reliance on an alert. Customer agrees that Bank is not responsible for any costs or fees incurred as a result of alerts sent to email addresses or phone numbers connected with mobile or similar devices. 9.2.3 Alerts are not encrypted and will never include Customer's Access Devices or full Account number(s). However, alerts may include Customer's name and some information about Customer's Accounts, depending upon which alert(s) Customer selects. Anyone with access to Customer's email address will be able to view the contents of these alerts. 9.2.4 Customer may, at its option, customize the subject line of Customer's alerts for easier identification by Customer. Customer acknowledges and agrees that Customer should not include full Account number(s) or other sensitive Customer or Account information in any customized subject line. 10. Use of Financial Management (FM) Software. Use of the Services may be supplemented by use of certain FM software. Compatibility and functionality of the FM software with the Services may vary depending upon the FM software Customer is using, and Bank makes no representations or guarantees regarding use of the Services with Customer's FM software. Customer is responsible for obtaining and maintaining the FM software. Customer's use of the FM software is governed by the software license agreement(s) included with each software application. Customer must agree to the terms and conditions of the software license agreement(s) during the installation of the FM software on Customer's Computer. Customer is responsible for the correct set-up and installation of the FM software, as well as maintenance, updates and upgrades to the FM software and/or Customer's Computer. Bank will provide Customer with reasonable assistance, when requested, to enable Customer's use of the Services with FM software. Bank is not responsible for any problems related to the FM software itself, Customer's Computer or Customer's ability to connect using the FM software as described in this Appendix. Customer should verify all Account data obtained and any transactions that may be executed on Customer's Accounts using FM software, as applicable. Bank's records of transactions, instructions and communications regarding Customer's Accounts and use of the Services supersede any records stored or created on Customer's Computer through the use of FM software. Customer is responsible for any and all obligations to any software vendor arising from Customer's use of that vendor's FM software. Customer acknowledges and agrees that the FM software versions supported by Bank for purposes of use with the Services shall be in accordance with the sunset policy of the FM software provider. 11. Additional Security Terms. In addition to the other terms of this Appendix and of the parties' Cash Management Master Agreement, Customer agrees not to disclose any proprietary information regarding the Services to any third party (except to Customer's Administrator(s) and Authorized User(s)). Customer acknowledges that there can be no guarantee of secure transmissions over the Internet and agrees to comply with any operating and commercially reasonable security procedures Bank may establish from time to time with respect to the Services. Customer will be denied access to the Services if Customer fails to comply with any of these procedures. Customer is responsible for reviewing the transaction reports Bank provides on-line and in Customer's monthly statements to detect unauthorized or suspicious transactions. In addition to any other provision hereof regarding authorization of transactions using the Services or in the parties' Cash Management Master Agreement, all transactions will be deemed to be authorized by Customer and to be correctly executed thirty (30) Calendar Days after Bank first provides Customer with a statement or online transaction report showing that transaction, unless Customer has provided written notice that the transaction was unauthorized or erroneously executed within that period. In order to minimize risk of loss, Customer agrees to cause its Administrator or designated Authorized User(s) to review the transaction audit log available with the Services to detect unauthorized or erroneous transactions not less frequently than once every five (5) Calendar Days. 12. Terminating this Appendix; Liability. 20 oj54 0522 224 12.1 This Appendix may be terminated in accordance with the terms and conditions of the Cash Management Master Agreement. 12.2 The provisions of this Appendix relating to Customer's and Bank's liability and the disclaimer of warranties set forth in the Cash Management Master Agreement and incorporated herein by reference shall survive the termination of this Appendix. 13. Changes to the Services and this Appendix. Bank may change the Services and this Appendix (including any amendments hereto) in accordance with the terms and conditions of the Cash Management Master Agreement. 14. Notices. Notices required by this Appendix shall be provided in accordance with the terms and conditions of the Cash Management Master Agreement. 15. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. Remainder of page intentionally left blank. 2, of 54 0522 225 --1 Bank APPENDIX II TD ACH ORIGINATION SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and the parties' Bank Internet System Agreement, as applicable. This Appendix applies to all automated clearing house ("ACH") Services made available to Customer, in Customer's cgRacity as an Originator by Bank, as an Originating Depository Financial Institution ("ODFI"). All capitalized terms used herein without definition shall have the meanings given to them in either the Cash Management Master Agreement or the NACHA Rules (as defined below), as applicable. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The ACH network is a funds transfer system which provides for the interbank clearing of electronic credit and debit Entries for participating financial institutions. The ACH system is governed by the National Automated Clearing House Association's ("NACHA") Operating Rules and Operating Guidelines (collectively the "NACHA Rules"). 2. Customer Obligations. 2.1 Customer will comply and shall cause its employees, officers, directors, agents and its Authorized Representative(s) and Administrator(s) to comply with (i) the NACHA Rules as amended from time to time and (ii) any specifications, advisories, interim policies, or instructions related to ACH transactions issued, from time to time, by Bank, NACHA or any federal or state regulatory authorities. The duties of Customer set forth in this Appendix in no way limit the requirement that Customer comply with the NACHA Rules. Customer specifically adopts and makes to Bank all representations and warranties of an Originator under the NACHA Rules, including that Customer will not initiate Entries in violation of the laws of the United States. Customer has access to a copy of the NACHA Rules and acknowledges receipt of a copy. (The NACHA Rules maybe obtained at NACHA's website at www.NACI-A.org or by contacting NACHA directly at 703-561-1100.) Customer agrees to subscribe to receive revisions to the NACHA Rules directly from NACHA. 2.2 Customer will maintain a checking Account ("Settlement Account') at Bank with available balances as of the Effective Entry Date sufficient to offset any Entries submitted and against which any rejected or returned Entries may be credited or debited. Bank reserves the right, in its sole and exclusive discretion and at any time, to require ACH pre -funding of credit Entries requested by Customer, in accordance with the terms and conditions of any agreement between Bank and Customer relating to pre -funding of such Entries, including as otherwise set forth in this Appendix. Bank also reserves the right, in its sole and exclusive discretion and at any time, to delayed settlement of debit Entries requested by Customer, in accordance with the terms and conditions of any agreement between Bank and Customer relating thereto. 2.3 Customer agrees from time to time, upon Bank's request and in accordance with this Appendix and the parties' Cash Management Master Agreement, to promptly provide Bank with information pertaining to Customer's financial condition as Bank may request, including without limitation, the name(s) of other financial institutions that Customer is using to originate Entries. 2.4 Nothing in this Appendix or any course of dealing between Customer and Bank (i) constitutes a commitment or obligation of Bank to lend money to Customer, (ii) obligates Bank to extend any credit to Customer, to make a loan to Customer or otherwise to advance funds to Customer to pay for any payment order contrary to Bank's published availability schedules and the settlement timing as reflected herein, and in such other documents and materials as may be provided to Customer by Bank with regard to the Services from time to time, (iii) constitutes a modification of this Appendix, the NACHA Rules, or the Security Procedures, or (iv) otherwise constitutes an agreement between Bank and Customer regardless of whatever practices and procedures Bank and Customer may use. 2.5 Customer is responsible for all tariffs, duties or taxes (excluding U.S. federal, state and local taxation of the income of Bank) that may be imposed by any government or governmental agency in connection with any payment order executed pursuant to this Appendix, including without limitation any international tariffs, duties or taxes related to international ACH Entries as further described in Section 6 below. 2.6 Customer shall be liable for all fines including without limitation any international fines related to international ACH Entries as further described in Section 6 below, that may be incurred by Bank that are attributable to Customer's failure to comply with (i) the NACHA Rules, or (ii) the laws, regulations and orders administered by the U.S., including without limitation, the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC") and the U.S. Department of the Treasury's Financial Crimes Enforcement Network ("FinCEN"). CAP 7D 88442 0722 226 3. Risk Exposure Limits. 3.1 Bank will establish for Customer, in Bank's sole and exclusive discretion, a transactional "Credit Exposure Limit" and a "Debit Exposure Limit" ("Exposure Limit(s)"). Each Exposure Limit will be established as an aggregate limit over multiple Settlement Dates with other not -yet -settled transactions issued by Customer through any ACH application with Bank. The Exposure Limits are based on Customer's financial condition and anticipated or historical level(s) of Entry instructions with Bank. Bank will notify Customer of Customer's Exposure Limits prior to implementation of the Services. 3.2 Customer shall promptly notify Bank if Customer anticipates a significant increase or decrease in the dollar amount of any of its ACH transactions. Bank may, from time to time, in its sole discretion, change the amount of Customer's Exposure Limits. Bank may, on an annual or more frequent basis, in Bank's sole discretion, review Customer's Exposure Limits and make any adjustments to Customer's Exposure Limits that Bank may deem appropriate. 3.3 Bank monitors all Exposure Limits for every customer that originates ACH transactions. Bank may suspend or reject processing of any Entry instructions if such Entry exceeds Customer's Exposure Limit(s). Bank may, in its sole and exclusive discretion, but shall have no obligation, to elect to process occasional Entry instructions that would exceed Customer's Exposure Limit(s). If Customer's Entry instructions exceed its Exposure Limit(s), Bank may elect to process such instructions subject to there being sufficient available funds in the Settlement Account, or in any other Customer Account(s) authorized by Bank for ACH transaction purposes, for the total amount of all credit Entries submitted to Bank for processing. In such event, Bank may elect to reduce available funds in the Settlement Account, as well as place a hold on available funds in any other Customer Account(s) authorized by Bank for ACH transaction purposes to the extent necessary to cover the total amount of the ACH credit Entries, on the Business Day that Bank begins processing Customer's ACH file. Customer's Settlement Account will be debited on the effective Settlement Date of the file, simultaneously with removal of the hold on funds in the other Customer Account(s). Alternatively, if Customer's Entry instructions exceed Customer's Exposure Limit(s), Bank may elect to process such instructions and release a file against insufficient collected funds, subject to Customer promptly depositing collected funds in the Settlement Account in the form of a cash deposit, wire transfer, intra -bank fund transfer or loan advance to cover Customer's funding obligation. 4. File Transmission Methods; Addenda. 4.1 Customer may elect, in accordance with the Services' Setup Form(s), to transmit a NACHA-formatted file to Bank via the following methods, or via such other methods as Bank may permit from time to time in its sole and exclusive discretion: 4.1.1 Bank Internet System Transmission. Customer may transmit a NACHA- formatted file to Bank via the service described in the Bank Internet System Appendix. Customer agrees to the terms of the Bank Internet System Appendix and its related security procedures when initiating Entries as described therein. 4.1.2 Direct Electronic Transmission. Customer may transmit a NACHA-formatted file directly to Bank, as described in or as otherwise permitted by Bank's Appendix for Data Transmission Services. Connectivity between Bank and Customer must be established and successfully tested prior to live transactions. 4.2 Electronic Data Interchange ("EDI"). EDI consists of the electronic movement of data between Customer and Bank in a structured, computer -retrievable data format that permits information to be transferred between a computer program at Customer's location and a computer program at Bank's location without re -keying. Customer and Bank may transmit between each other an ACH file that contains ACH Addenda which conform to the NACIM Rules via EDI, and as described in or as otherwise permitted by Bank's Appendix for Data Transmission Services. Bank will process and forward Addenda information along with financial transactions through the ACH network. Bank will, upon Customer's request, forward Addenda information to Customer within two (2) Business Days of Bank's receipt of such information. 5. Transmittal of Entries by Customer. 5.1 Customer will send file(s) of credit and debit Entries to Bank (i) with computer readable information; (ii) with an ACH file and format consistent with current NACHA file and Bank specifications; and (iii) on the medium as agreed by the parties and in accordance with the security procedures associated with that transmission medium. Customer agrees to initiate Entries described herein in accordance with the requirements of, and in compliance with its responsibilities, representations and warranties as an Originator under, the NACHA Rules. 5.2 With respect to any credit and debit Entries initiated and transmitted by Customer that involve consumers, Customer will comply with, each as may be amended from time to time: (i) all authorization, disclosure and other requirements of the NACHA Rules and (ii) all applicable federal and state laws and regulations, including, without limitation, any applicable requirements of Regulation E of the Consumer Financial Protection Bureau (or any successor entity who administers Regulation E) (hereinafter "Regulation E") and the Federal Electronic Funds Transfer Act. 5.3 Customer acknowledges the right of a consumer Receiver of an unauthorized debit Entry, as applicable and as described in the NACHA Rules, to obtain a refund of the funds debited from Receiver's account by such Receiver sending a written notice to Receiver's Receiving CAP /D 88442 0711 227 Depository Financial Institution ("RDFI") in accordance with the NACHA Rules (i.e., a Written Statement of Unauthorized Debit), and where such notification is received in time and in a manner that reasonably allows the RDFI to meet the deadline for transmitting a Return Entry as provided in the NACHA Rules. Customer also acknowledges the right of a corporate Receiver of a debit Entry, as applicable and as described in the NACHA Rules, to obtain a refund of the funds debited from such Receiver's account by such Receiver sending a notice to Receiver's RDFI within two (2) Business Days following the Settlement Date of the original Entry. Customer indemnifies Bank against any such claim for a refund by any Receiver. 5.4 In accordance with this Appendix, Customer may use the Services to initiate and transmit credit and debit Entries with certain Standard Entry Class ("SEC") Codes. Authorized SEC Codes include PPD, PPD+, CCD, CCD+ and CTX. All other SEC Codes may be used with proper designation on the Services' Setup Form(s) and in accordance with additional instructions from and requirements by Bank, as applicable. Bank may also suspend or terminate Customer's use of one or more SEC Codes at any time in Bank's sole and exclusive discretion. 5.5 Bank may suspend Customer's use of one or more inactive ACH set-ups after 12 months of inactivity and subsequently terminate Customer's use of the inactive ACH set-up on one or more channels of delivery, after 16 months of inactivity. Non-use of ACH Origination for 16 months, mal result in the termination and removal of the ACH Service. 6. International ACH Transactions ("IAT Entries"). 6.1 An IAT Entry is a debit or credit Entry that is part of a payment transaction involving a Financial Agency located outside of the territorial borders of the United States, which is processed through the domestic ACH network, pursuant to the NACHA Rules, including the rules pertaining to International ACH Transactions. IAT Entries also include those that are funded directly by an incoming international wire or similar funding source. The NACHA Rules establish SEC Code "IAT" for all International ACH Transactions. Customer agrees to be bound by the NACHA Rules and all other statutes and regulations pertaining to IAT Entries, including all applicable OFAC and FinCEN rules and regulations associated with IAT Entries. Customer acknowledges that IAT Entries require additional mandatory information, according to special formatting requirements, in the computer record for such Entries within an ACH batch file. Customer expressly agrees to identify and properly initiate all IAT Entries. Bank will facilitate IAT Entries to Receivers located in foreign countries approved by Bank and facilitated by the ACH or the Gateway Operator (hereinafter in this Section, collectively, "ACH Operator"). Bank will process each IAT Entry in accordance with (a) the laws and payment system rules and requirements of the receiving foreign country ("Foreign Country Rules"), (b) any agreement governing IAT Entries between Bank and the ACH Operator through which Bank processes the IAT Entry, the terms of which Bank communicates to Customer prior to Customer's use of the Services or from to time thereafter, and (c) the NACHA Rules. 6.2 Customer acknowledges and agrees that IAT Entries may be subject to laws, regulations and restrictions of U.S. and foreign governments relating to foreign exchange transactions. Before initiating an IAT Entry, Customer agrees to understand and accept the Foreign Country Rules. An IAT Entry must be authorized by the Receiver. The form and content of the Receiver's authorization, including whether such authorization is oral, electronic or written, is governed by Foreign Country Rules. Customer assumes the risk of rejection of its Entries according to Foreign Country Rules, Bank and the ACH Operator. Customer expressly acknowledges and agrees that Outbound IAT Entries, once transmitted, are irrevocable and are subject to the Foreign Country Rules; furthermore, the time frames for return of an Entry are determined by the Foreign Country Rules and may exceed the sixty (60) day return window for consumer Entries defined by the U.S. ACH system and the NACHA Rules, as well as the return window for non -consumer Entries. Customer also agrees that IAT Entries may not be dishonored, reversed or settled upon a specific date, and that pre -notifications are not permitted with respect to IAT Entries involving certain foreign countries. To the extent not otherwise prohibited by law, in connection with IAT Entries, (1) Customer assumes the risk of all fluctuations in foreign exchange rates or availability, and (2) Customer assumes the risk of loss for creating any and all erroneous IAT Entries. Customer acknowledges and agrees that the processing, settlement and/or availability of such Entries may be delayed or suspended in the event that Bank determines that enhanced scrutiny or verification of such Entries is necessary under the NACHA Rules and/or applicable U.S. law. The ACH Operator through which Bank processes the IAT Entry, in its sole discretion, may also refuse to handle IAT Entries. Customer acknowledges that Bank shall have no liability for such delay or refusal. 6.3 In addition to the provisions of Section 22 of this Appendix, Customer makes the following additional representations and warranties with respect to any IAT Entry submitted by Customer or on Customer's behalf: 6.3.1 Customer is in compliance with U.S. law, including, but not limited to, Customer's obligations under programs administered by OFAC and FinCEN; and 6.3.2 The origination of an Outbound IAT Entry is in compliance with the Foreign Country Rules, including any requirements regarding authorization with respect to an IAT Entry. 6.4 Bank will not be liable for (a) any failure or delay by the ACH Operator, any intermediary financial institution, or the financial institution designated to receive the IAT Entry in the receiving country in processing or failing to process any IAT Entry that is transmitted to the receiving country, or (b) the acts or omissions by a third party, including without limitation, the delay or failure of any third party to process, credit or debit any IAT Entry. Bank is also not responsible for the transmission or CAP /D 88441 0722 p 220 settlement of IAT Entries on foreign holidays or other days on which foreign countries may not process Entries. 6.5 With respect to credit IAT Entries that Customer wishes to originate in the currency of a designated foreign government or intergovernmental organization ("Foreign Currency"), Bank will originate the IAT Entries in U.S. dollars ("USD") only. Once the Entry is transmitted by Bank to the ACH Operator, the ACH Operator will convert the amount to be transferred from USD to the Foreign Currency. If the financial institution designated to receive the funds does not pay the Receiver specified in the Entry, or if the Entry is subsequently determined to be erroneous, the ACH Operator will convert the amount to be returned from the Foreign Currency to USD. Bank will not be liable for any difference in the amount of the original Entry after it has been converted from the Foreign Currency to USD. Further, if Customer designates the currency to arrive at the receiving financial institution in Foreign Currency, and the designated Receiver account at the receiving financial institution is a USD account, Customer acknowledges that the receiving financial institution may: (1) elect to convert the currency back to USD and post the transfer to the Receiver's account accordingly, or (2) return the Entry, in which case the amount transferred is converted from Foreign Currency back to USD to post back to Customer's account. Customer assumes all foreign exchange risk associated with any of the foregoing. 7. Security Procedures. 7.1 Customer and Bank shall comply with the security procedures set forth or incorporated by reference in this Appendix, the Cash Management Master Agreement, the Bank Internet System Appendix, Data Transmission Services Appendix and/or associated documents provided by Bank, including without limitation the Services' Setup Form(s) (collectively the "Security Procedures"), with respect to Entries transmitted by Customer to Bank. Customer acknowledges and agrees the Security Procedures are a commercially reasonable method for the purpose of verifying the authenticity of Entries (or any request for cancellation or amendment thereof). Customer further acknowledges that the purpose of the Security Procedures is not to detect an error in the transmission or content of an Entry. No security procedures have been agreed upon between Bank and Customer for the detection of any such error. 7.2 Customer is strictly responsible for establishing, implementing, maintaining and (as appropriate) updating its own security procedures (a) to safeguard against unauthorized transmissions, and (b) relating to the initiation, processing and storage of Entries. As required by the NACHA Rules with respect to the protection of ACH information (non- public information, including financial information of Receivers and Customer's customers, used to create, or contained within, an ACH Entry and any related addenda record), Customer shall ensure that its security policies, procedures and systems: • Protect the confidentiality and integrity of the protected information, Protect against anticipated threats or hazards to the security or integrity of protected information until its destruction, and Protect against unauthorized use of protected information that could result in substantial harm to the Receiver/customer. Abide by all rules pertaining to commercially reasonable data security as prescribed within the NACHA Rules Customer warrants to Bank that no individual will be allowed to initiate transfers in the absence of proper supervision and safeguards, and Customer agrees to take reasonable steps to maintain the confidentiality of the Security Procedures and any passwords, codes, security devices and related instructions Bank provides in connection with the Security Procedures. If Customer believes or suspects that any such information or instructions have been known or accessed by an unauthorized person, Customer agrees to notify Bank immediately by calling 1-866-475-7262, followed by written confirmation to TD Bank, N.A., Attn: Treasury Management Services Support, 6000 Atrium Way, Mt. Laurel, New Jersey, 08054. The occurrence of unauthorized access will not affect any transfers Bank makes in good faith prior to, and within a reasonable time period after, its receipt of such notification. 7.3 Bank may, from time to time, propose additional or enhanced security procedures to Customer. Customer understands and agrees that if it declines to use any such enhanced procedures, it will be liable for any losses that would have been prevented by such procedures. Notwithstanding anything else contained in this Appendix, if Bank believes immediate action is required for the security of Bank or Customer funds, Bank may initiate additional security procedures immediately and provide prompt subsequent notice thereof to Customer. S. Compliance with Security Procedures. 8.1 If an Entry (or a request for cancellation or amendment of an Entry) received by Bank purports to have been transmitted or authorized by Customer, it will be deemed effective as Customer's Entry (or request), and Customer shall be obligated to pay Bank the amount of such Entry (or request) even though the Entry (or request) was not authorized by Customer, provided Bank acted in compliance with the Security Procedures. 8.2 If an Entry (or a request for cancellation or amendment of an Entry) received by Bank was transmitted or authorized by Customer, Customer shall be obligated to pay the amount of the Entry as provided herein, whether or not Bank complied with the Security Procedures and whether or not that Entry was erroneous in any respect or that error would have been detected if Bank had complied with the Security Procedures. 9. Recording and Use of Communications. Customer and Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with this Appendix may be electronically recorded and retained by either party by use of any reasonable means. CAP ID 88442 0711 229 10. Processing, Transmittal and Settlement of Entries by Bank. 10.1 Bank will process, transmit and settle for credit and debit Entries initiated by Customer as provided in the NACHA Rules as in effect from time to time, and pursuant to this Appendix. Exclusive of "Same Day ACH Entries," which are described in Section 23 below, Bank will transmit such Entries as an ODFI to the ACH Operator by the deadline of the ACH Operator, provided such Entries are received by Bank prior to 8:00 p.m. Eastern Time ("ET") and the ACH Operator is open for business on such Business Day. Entries received after 8:00 p.m. ET will be deemed received the following Business Day. If the Effective Entry Date falls on a non -Business Day, final settlement will occur on the next Business Day. Customer may submit a NACHA-formatted file up to the time limit in advance of the Effective Entry Date as the Services permit, or as may otherwise be permitted by Bank under the terms of this Appendix. Customer will hold Bank harmless from all charges and liabilities that may be incurred as a result of the delivery of late Entries. 10.2 If the file of Entries is received other than in specified NACHA and Bank format, Customer will be required to provide Bank with a corrected file. If a corrected file of Entries is received later than 8:00 p.m. ET on the delivery date with an intended Effective Entry Date of next -Business Day, Customer will hold Bank harmless from all charges and liabilities that may be incurred as a result of the processing of late Entries. 10.3 For purposes of this Appendix, Entries shall be deemed received by Bank, in the case of electronic file transmission, when the transmission is completed as set forth in Bank's Appendix for Data Transmission Services and/or the Services' Setup Form(s). 10.4 If any of the requirements of this Section 10 (or of Section 23 with respect to Same Day ACH Entries) are not met, Bank shall use reasonable efforts to transmit such Entries to the ACH Operator by the next deposit deadline on which the ACH Operator is open for business. Any stale dated Effective Entry Date, may result in "Same Day ACH Entries". 11. On -Us Entries. Except as otherwise provided herein, in the case of an Entry received for credit or debit to an account maintained by Bank (an "On -Us Entry"), Bank will credit or debit the Receiver's account in the amount of such Entry on the Effective Entry Date, provided the requirements set forth herein are otherwise met. If those requirements are not met, by reason of stale or same-day Effective Entry Dates on such Entries, Bank will credit or debit the Receiver's account in the amount of such Entry on the date the Entry was received by Bank, or if the Entry was received on a non -Business Day, Bank will credit or debit the Receiver's account in the amount of such Entry on the next Banking Day following the date the Entry was received by Bank. Bank will have the right to reject an On -Us Entry as described in Section 12, Returned or Rejected Entries. In the case of an On -Us Entry, Bank will have all rights of an RDFI including, without limitation, the rights set forth in NACHA Rules. 12. Returned or Rejected Entries. 12.1 In the event any Entry is returned or rejected by the ACH Operator or any RDFI or Intermediary Depository Financial Institution, it shall be the responsibility of Customer to (i) remake and resubmit such Entry, (ii) with respect to an ACH Debit Entry, enroll in Bank's Auto- Redeposit service or (iii) otherwise resolve the returned Entry in accordance with the NACHA Rules. 12.2 Bank shall remake such Entry in any case where rejection by the ACH Operator was due to mishandling of such Entry by Bank and sufficient data is available to Bank to permit it to remake such Entry. In all other instances, Bank's responsibility will be to receive rejected or retumed Entries from the ACH Operator, perform necessary processing, control and settlement functions, and to forward such Entries to Customer. Except for an Entry retransmitted by Customer in accordance with the requirements of Section 5, Transmittal of Entries by Customer, or the enrollment in Bank's Auto- Redeposit service for ACH Debit Entries, Bank shall have no obligation to retransmit a retained Entry to the ACH Operator if Bank complied with the terms of this Appendix with respect to the original Entry. 12.3 Bank may reject any Entry which does not comply with the requirements of Section 5, Transmittal of Entries by Customer, or Section 7, Security Procedures. Bank may also reject any Entry which contains a future Settlement Date that exceeds the limits set forth within the Services. Bank may reject an On -Us Entry for any reason for which an Entry may be returned under the NACHA Rules. Bank may reject any Entry or file if Customer has failed to comply with its Settlement Account balance obligations under Section 2, Customer Obligations, or Customer's Exposure Limit under Section 3, Risk Exposure Limits. Notices of rejection shall be effective when given. Bank shall have no liability to Customer by reasons of the rejection of any such Entry or the fact that such notice is not given at an earlier time than that provided for herein. Bank may monitor Customer's rejected or returned Entries. Bank reserves the right, in its sole and exclusive discretion, to require Customer to establish a reserve Account in the event that an excessive number of Customer's debit Entries are rejected or returned 12.4 In accordance with NACHA Rules, Bank may monitor returned Entries, and in its sole discretion, may: (1) require Customer to lower its return rates, (2) invoke premium penalty fees for unauthorized or excessive return rates, and/or (3) invoke termination or suspension of the Services and/or this Appendix in conjunction with Section 31 of this Appendix. 12.5 In Bank's sole discretion, and upon Customer request, Bank may enroll eligible customers in the ACH Auto-Redeposit service for ACH debit origination. The service automates Customers redeposit of eligible returns due to insufficient funds (RO1) and uncollected funds (R09), one or two additional times, within nine (9) calendar days as selected by Customer at the time of enrollment in the service. Customer CAP ID 88441 0722 230 will receive notice of each return attempt and be responsible for any associated fees. Customer's account will be setoff for the amount of the returned Debit Entry after the final attempt to Auto-Redeposit the Entry is determined by Bank to be unsuccessful. 13. Cancellation or Amendment by Customer. Customer shall have no right to cancel or amend any Entry or file after its receipt by Bank. However, if such request complies with the Security Procedures applicable to the cancellation of data, Bank shall use reasonable efforts to act on a request by Customer for cancellation of an Entry prior to transmitting it to the ACH Operator, or in the case of an On -Us Entry, prior to crediting or debiting a Receiver's account, but Bank shall have no liability if such cancellation is not effected. Customer shall reimburse Bank for any expenses, losses, or damages Bank may incur in effecting or attempting to effect the cancellation or amendment of an Entry. 14. Reversing Entries/Files. If Customer discovers that any Entry or file Customer has initiated was in error, it may use the Services to correct the Entry or file by initiating a reversal or adjustment, or Customer may notify Bank of such error and Bank will utilize reasonable efforts on behalf of Customer, consistent with the MUM Rules, to correct the Entry or file by initiating a reversal or adjustment of such Entry or file. In all such cases, it shall be the responsibility of Customer to notify the affected Receiver that an Entry or file has been made which is at variance with the authorization or is otherwise erroneous. Customer indemnifies Bank against any claim by any Receiver that a reversing Entry or file requested by Customer is wrongful. Customer understands and acknowledges that certain RDFIs may not or cannot comply with such reversal and that, in such an event, Bank will debit Customer's Settlement Account in the amount of the provisional credit applied to the Settlement Account for such Entry or file. 15. Notice of Returned Entries. Bank will use reasonable efforts to notify Customer by electronic transmission of the receipt of a returned Entry from the ACH Operator no later than one (1) Business Day after the Business Day of such receipt. Except for an Entry re- transmitted by Customer in accordance with the requirements of Section 5, Transmittal of Entries by Customer, or the enrollment in Bank's Auto-Redeposit service for ACH Debit Entries, Bank shall have no obligation to re- transmit a returned Entry to the ACH Operator if Bank complied with the terms of this Appendix with respect to the original Entry. 16. Notifications of Change. Bank will use reasonable efforts to notify Customer of each Notification of Change ("NOC") or Corrected Notification of Change ("Corrected NOC") received by Bank related to Entries transmitted by Customer within two (2) Business Days after receipt thereof. Customer shall ensure that changes requested by the NOC or Corrected NOC are made within six (6) Business Days of Customer's receipt of the NOC or Corrected NOC information from Bank or prior to initiating another Entry to the Receiver's account, whichever is later. In the event that Customer has not updated the NOC, the Bank will undertake this correction on the Customer's behalf, before each subsequent Entry is placed into the Network, in order to be compliant with the NACHA Rules. Bank will access a fee for updating the NOC as outlined in the fee schedule. 17. Pre -Notification and Rejection of Pre - Notification. Bank recommends that, as permitted by the NACHA Rules or applicable law, Customer send pre - notifications at least three (3) Business Days prior to initiating an authorized Entry to a particular account in a format and medium approved by the NACHA Rules. Customer may also initiate a new pre -notification (i) when any changes are made to an account number, financial institution, or individual identification number or (ii) as otherwise stated in the NACHA Rules. Customer understands and acknowledges that once a pre -notification has been initiated using the Services, Customer will be restricted from initiating any Entry to such customer(s) for three (3) Business Days. 18. Participant Authorization for Entries. 18.1 To the extent required by the NACHA Rules or applicable law, Customer will obtain all consents and written authorizations for all Entries in accordance therewith. Such authorizations and any related disclosures shall be in a form that complies with (i) all requirements of the NACHA Rules and (ii) all applicable federal and state laws and regulations, as the same may be amended from time to time, including, without limitation, any applicable requirements of Regulation E, the Federal Electronic Funds Transfer Act, and sanctions enforced by OFAC. Customer shall obtain and maintain current information regarding OFAC enforced sanctions. (This information may be obtained directly from the OFAC Compliance Hotline at (800) 540-OFAC or by visiting the OFAC website at www.ustreas.gov/ofac.) Each Entry will be made according to such authorization and shall comply with the NACHA Rules. No Entry will be initiated by Customer after such authorization has been revoked or the arrangement between Customer and such Receiver or other party has terminated. 18.2 Customer shall retain all consents and authorizations for the period required by the NACHA Rules. Customer will furnish to Receiver, or to Bank upon its request, an original or a copy of an authorization as required under or for any purpose required by the NACHA Rules. No investigation or verification procedure undertaken by Bank shall be deemed to limit or waive Customer's obligations under this Section. 19. Re-initiation of Entries. Customer may not re- initiate Entries except as prescribed by the NACHA Rules. 20. Payment by Customer for Entries; Payment by Bank for Entries. 20.1 Except as may otherwise be agreed by Bank in its sole and exclusive discretion, Customer shall pay Bank the amount of each credit Entry transmitted by Bank pursuant to this Appendix at such time on the date of CAP 7D 88441 0711 231 transmittal by Bank of such credit Entry as Bank, in its discretion, may determine. 20.2 Customer shall promptly pay Bank the amount of each debit Entry returned by an RDFI pursuant to this Appendix. 20.3 Bank will pay Customer the amount of each debit Entry transmitted by Bank pursuant to this Appendix at such time on the Settlement Date with respect to such debit Entry as Bank, in its discretion, may determine, and the amount of each On -Us Entry at such time on the Effective Entry Date as Bank, in its discretion, may determine. 20.4 Bank will use reasonable efforts to promptly pay Customer the amount of each credit Entry returned by an RDFI that was transmitted by Bank pursuant to this Appendix. 20.5 Customer acknowledges and agrees that any failure of Customer to make payment to Bank as described in this Section may constitute an event of default under any other agreement for credit that Customer or any of Customer's Affiliates has with Bank or any Affiliate of Bank. Customer further acknowledges and agrees to execute and deliver any further documents and instruments as Bank may require to effectuate the cross -default contemplated hereby. 21. Third -Party Service Provider; Third -Party Sender Activities. 21.1 Subject to Bank's prior approval and in its sole and exclusive discretion, Customer may appoint a third party to act as Customer's agent to process Entries on Customer's behalf and for purposes of the services provided hereunder ("Third -Party Service Provider"), as set forth in the Services' Setup Form(s). All data received by Bank from Third -Party Service Provider, including Entries and instructions (and corrections or adjustments thereto), are hereby authorized by Customer. All acts and omissions of Third -Party Service Provider shall be the acts, omissions and responsibility of Customer and shall be governed by the provisions of this Appendix. Customer agrees, jointly and severally with Third -Party Service Provider, to indemnify and hold Bank harmless from any and all liabilities, losses, damages, costs and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel in connection with any investigative, administrative or judicial proceedings, whether or not Bank shall be designated a party thereto) which may be incurred by Bank relating to or arising out of the acts or omissions of Third - Party Service Provider on behalf of Customer. Customer and Third -Party Service Provider shall execute any such other agreement(s) or documents as deemed necessary or appropriate by Bank prior to the initiation or continuation by Third -Party Service Provider of any services on Customer's behalf, including without limitation Bank's Third -Party Service Provider Agreement, as the same may be modified by Bank from time to time. Notice of any termination of Third -Party Service Provider's authority to transmit data and instructions to Bank on Customer's behalf shall be given to Bank in writing. The effective date of such termination shall be ten (10) Business Days after Bank receives written notice of such termination. Customer agrees that Bank retains the right to reject any Third -Party Service Provider and any Entries initiated by Customer's Third -Party Service Provider in its sole discretion. 21.2 Customer may not use the services provided hereunder to process Entries on behalf of Customer's clients (defined as a "Third -Party Sender" under the NACHA Rules), except where Customer has formally requested to engage in such activity in advance and where Bank has provided its prior approval, which Bank may grant or withhold in its sole and exclusive discretion. In the event Bank approves of such use, Customer shall execute such other agreement(s) or documents as deemed necessary or appropriate by Bank prior to the initiation or continuation by Customer of any ACH services in the capacity of a Third - Party Sender. Customer agrees that Bank retains the right to reject any request by Customer to engage in Third -Party Sender activities as well as any Entries initiated by Customer in such capacity, in Bank's sole discretion. 22. Customer Representations and Agreements; Indemnity. In addition to Customer representations, agreements and warranties otherwise described in this Appendix, Customer further represents and warrants to Bank and agrees, with respect to each and every Entry transmitted by Customer or any Third -Party Service Provider on Customer's behalf, that: (i) Each person shown as the Receiver of an Entry received by Bank from Customer has authorized the initiation of such Entry and the crediting or debiting of its account in the amount and on the Effective Entry Date shown on such Entry; (ii) Such authorization is operative at the time of transmittal or crediting or debiting by Bank as provided herein; (iii) Entries transmitted to Bank by Customer are limited as set forth in Sections 3 and 5; (iv) Customer shall perform its obligations under this Appendix in accordance with the laws of the United States and all other applicable laws, regulations and orders, including, but not limited to, the transaction screening and sanctions laws, regulations and orders administered by OFAC; laws, regulations and orders administered by FinCEN; and any state laws, regulations or orders applicable to the providers of ACH payment services; (v) Customer shall be bound by and comply with the provisions of the NACHA Rules (among other provisions of the NACHA Rules) that make payments of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Entry; (vi) Customer specifically acknowledges that it has received notice of the rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount of the Entry; CAP 7D 88442 0721 232 (vii) with respect to each International ACH Transaction ("IAT") that Customer may be permitted by Bank to initiate, Customer shall (a) classify and format payments transmitted to or received from a financial agency outside the U.S. as an IAT in accordance with the NACHA Rules, (b) provide data necessary to accompany the transaction in compliance with the Bank Secrecy Act's "Travel Rule," (c) screen the IAT prior to transmitting any file(s) of Entries to the Bank in accordance with the requirements of OFAC and comply with OFAC sanctions, and (d) otherwise comply with and be subject to all other requirements of U.S. law, the NACHA Rules, OFAC and FinCEN, as well as the Foreign Country Rules; (viii) with respect to each Internet- initiated/mobile ("WEB") (as defined under the NACM Rules) ACH Entry that Customer may be permitted by Bank to initiate, (a) Customer employs (1) commercially reasonable detection systems to minimize risk of fraud related to Internet -initiated payments, (2) commercially reasonable procedures to verify validity of routing numbers, (3) commercially reasonable methods of authentication to verify the identity of the Receiver, and (4) a commercially reasonable level of encryption technology, and (b) where required by the NACHA Rules and/or Bank, Customer conducts annual audits as to its security practices and procedures that include, at a minimum, verification of adequate levels of (1) physical security to protect against theft, tampering, or damage, (2) personnel and access controls to protect against unauthorized access and use and (3) network security to ensure secure capture, storage, and distribution, and will provide proof of such audits to Bank upon request; (ix) with respect to each Telephone -Initiated ("TEL") Entry that Customer may be permitted by Bank to initiate, Customer has (a) employed commercially reasonable procedures to verify the identity of the Receiver, and (b) utilized commercially reasonable procedures to verify that routing numbers are valid; (x) with respect to each Accounts Receivable ("ARC") Entry that Customer may be permitted by Bank to initiate, (a) the amount of the Entry, the routing number, the account number and the check serial number are in accordance with the source document, (b) Customer will retain a reproducible, legible image, microfilm or copy of the front of the Receiver's source document for each ARC Entry for two (2) years from the Settlement Date of the ARC Entry, (c) Customer has employed commercially reasonable procedures to securely store (1) all source documents until destruction and (2) all banking information relating to ARC Entries, (d) Customer has established reasonable procedures under which the Receiver may notify Customer that receipt of Receiver's checks does not constitute authorization for ARC Entries to the Receiver's account and that Customer will allow the Receiver to opt -out of check conversion activity, and (e) the source document to which each ARC Entry relates may not be presented or returned such that any person will be required to make payment based on the source document unless the ARC Entry is returned; (xi) with respect to each Back Office Conversion ("BOC") Entry that Customer may be permitted by Bank to initiate, (a) Customer has employed commercially reasonable procedures to verify the identity of the Receiver, (b) Customer has established and maintains a working telephone number for Receiver inquiries regarding the transaction that is answered during normal business hours and that such number is displayed on the notice required by the NACHA Rules for BOC Entries, (c) the amount of the Entry, the routing number, the account number and the check serial number are in accordance with the source document, (d) Customer will retain a reproducible, legible image, microfilm or copy of the front of the Receiver's source document for each BOC Entry for two (2) years from the Settlement Date of the BOC Entry, (e) Customer has employed commercially reasonable procedures to securely store (1) all source documents until destruction and (2) all banking information relating to BOC Entries, and (f) the source document to which each BOC Entry relates will not be presented or returned such that any person will be required to make payment based on the source document unless the BOC Entry is returned; (xii) with respect to each Point -of -Purchase ("POP") Entry that Customer may be permitted by Bank to initiate, the source document provided to Customer for use in obtaining the Receiver's routing number, account number, and check serial number for the initiation of the POP Entry (a) is returned voided to the Receiver after use by Customer and (b) has not been provided to the Receiver for use in any prior POP Entry; and (xiii) with respect to each Returned Check ("RCK") Entry that Customer may be permitted by Bank to initiate, (a) all signatures on the item are authentic and authorized, (b) the item has not been altered, (c) the item is not subject to a defense or claim, (d) the Entry accurately reflects the item, (e) the item will not be presented unless the related Entry has been returned by the RDFI, (f) the information encoded after issue in magnetic ink on the item is correct, and (g) any restrictive endorsement placed on the item is void or ineffective. Customer shall indemnify and hold Bank harmless from any loss, liability or expense (including reasonable attorneys' fees and costs) resulting from or arising out of any breach of the foregoing warranties, representations or agreements. Customer shall also indemnify and hold Bank harmless from any claim of any person that Bank is responsible for any acts or omissions of Customer regarding any Entry received from Customer, or those of any other person related thereto, including, without limitation, any Federal Reserve Bank, ACH Operator or transmission or communications facility, any Receiver or RDFI. 23. Same Day ACH ("SDA"). Customer may be permitted, in Bank's sole and exclusive discretion, to initiate SDA Entries. In the event Bank approves Customer's initiation of SDA Entries, either on a one time or other periodic basis, Customer agrees as follows: 23.1 Customer shall be solely responsible for transmitting its SDA Entries with the appropriate intended CAP 1D 88442 0721 233 Effective Entry Date to qualify as an SDA Entry under the NACHA Rules. 23.2 Customer shall only initiate individual Entries that comply with the transaction limit per SDA Entry, as provided in the NACHA Rules 23.3 Customer will not initiate an SDA Entry as an IAT, as IATs are not eligible for same-day processing under the NACHA Rules. 23.4 Customer will transmit its SDA Entries to Bank in accordance with Bank's SDA Entry processing deadlines, as established by Bank from time to time and disclosed to Customer. 23.5 Customer acknowledges and agrees that if Customer sends an Entry with a stale or invalid Effective Entry Date, such Entry may be deemed and processed by Bank as an SDA Entry if transmitted in accordance with Bank's SDA Entry processing deadlines. 23.6 Customer acknowledges and agrees that if any of the requirements of this Section 23 are not met, including without limitation a failure by Customer to meet Bank's or the ACH Operator's deadline for SDA, Bank shall use reasonable efforts to transmit such Entries to the ACH Operator by the next available processing deadline on which the ACH Operator is open for business. 23.7 Customer further acknowledges that Bank will not consider the content of the Company Descriptive Date indicator when determining Customer's intent for processing and settlement of SDA Entries. 23.8 Customer will not initiate SDA Entries that are otherwise ineligible for SDA Entry processing and settlement in accordance with the NACHA Rules. 23.9 Customer otherwise agrees to and will comply with all other requirements under the NACHA Rules and by Bank with respect to SDA Entries, including as the same may be amended from time to time. 23.10 Customer will indemnify and hold Bank harmless from any SDA Entry processing and settlement that is performed by Bank as described herein and in accordance with the NACHA Rules, notwithstanding Customer's intent. 23.11 Customer will indemnify and hold Bank harmless from any intended SDA Entry not meeting the ACH Operator deadline due to Customer delays, or due to Bank processing delays that are beyond Bank's reasonable control. 24. Inconsistency of Name and Account Number. Customer acknowledges and agrees that if an Entry describes a Receiver inconsistently by name and account number, then (i) payment of such Entry transmitted to an RDFI may be made by the RDFI (or by Bank for an On -Us Entry) on the basis of the account number, even if it identifies a person different from the named Receiver and (ii) Customer's obligation to pay the amount of Entry to Bank is not excused in such circumstances. Similarly, if an Entry describes an RDFI inconsistently by name and routing number, payment of such Entry may be made based on the routing number, and Customer shall be liable to pay that Entry. 25. Banks Unable to Accept ACH Transactions. If Customer submits an Entry to Bank relating to an RDFI which is not a participant in the ACH, then (i) Bank may reject such Entry and use reasonable efforts to notify Customer of such rejection or (ii) if Bank does not reject such Entry, upon receiving a return transaction related to the Entry from the ACH Operator, Bank may offset the Settlement Account and notify Customer of such transaction. 26. Notices, Instructions, Etc. 26.1 Except as otherwise expressly provided herein, Bank shall not be required to act upon any notice or instruction received from Customer or any other person, or to provide any notice or advice to Customer or any other person with respect to any matter. 26.2 Bank shall be entitled to rely on any written notice or other written communication believed by it in good faith to be genuine and to have been provided in accordance with the provisions of the parties' Cash Management Master Agreement. 27. Data Retention. Customer shall retain data on file adequate to permit remaking of Entries for five (5) Business Days following the date of their transmittal by Bank as provided herein and shall provide such data to Bank upon request. Without limiting the generality of the foregoing provision, Customer specifically agrees to be bound by and comply with all applicable provisions of the NACHA Rules regarding the retention of documents or any record, including, without limitation, Customer's responsibilities to retain all items, source documents and records of authorization, in accordance with the NACHA Rules. 28. Data Breaches. 28.1 Customer agrees that it will adopt and implement commercially reasonable policies, procedures and systems to provide security as to the information being transmitted and to receive, store, transmit and destroy data or information in a secure manner to prevent loss, theft, or unauthorized access to data or information ("Data Breaches"), including but not limited to, Consumer -Level ACH Data. 28.2 Customer agrees that it will promptly investigate any suspected Data Breaches and monitor its systems regularly for unauthorized intrusions. 28.3 Customer will provide timely and accurate notification to Bank by calling 1-866-475-7262 with regard to any Data Breaches when known or reasonably suspected by Customer, including but not limited to, Data Breaches to Consumer -Level ACH Data, and will take all CAP ID 88441 0722 234 reasonable measures, including, without limitation, retaining computer forensic experts, to determine the scope of any data or transactions affected by any Data Breaches, providing all such determinations to Bank. 29. Audit. Bank has the right to periodically audit Customer's compliance with the NACHA Rules, U.S. law and Bank policies, including, but not limited to, this Appendix. 30. Records. All electronic or other files, Entries, Security Procedures and related records used by Bank for transactions contemplated by this Appendix shall be and remain Bank's property. Bank may, in its sole discretion, make available such information upon Customer's request. Any expenses incurred by Bank in making such information available to Customer shall be paid by Customer. 31. Termination. The parties may terminate this Appendix in accordance with the terms and conditions of the parties' Cash Management Master Agreement. In addition, if Customer breaches the NACHA Rules or causes Bank to breach the NACHA Rules, this Appendix may be terminated or suspended by Bank upon ten (10) Business Days' notice, or such shorter period as may be provided in the parties' Cash Management Master Agreement. Any termination of this Appendix shall not affect any of Bank's rights and Customer's obligations with respect to Entries initiated by Customer prior to termination, the payment obligations of Customer with respect to services performed by Bank prior to termination, or any other obligations or provisions that by the nature of their terms survive termination of this Appendix, including without limitation Sections 2, 5, 10, 12, 13, 14, 18, 20, 21, 22, 27, 32, 33 and 34. 32. Cooperation in Loss Recovery Efforts. In the event of any damages for which Customer or Bank may be liable to the other or to a third party relative to the Services, both parties shall undertake reasonable efforts to cooperate with the other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that Customer or Bank may be obligated to defend or elects to pursue against a third party. 33. Governing Law. In addition to the terms and conditions of the parties' Cash Management Master Agreement, the parties agree that if any payment order governed by this Appendix is part of a funds transfer subject to the federal Electronic Funds Transfer Act, then all actions and disputes as between Customer, or any Third -Party Service Provider acting on Customer's behalf, and Bank shall be governed by Article 4-A of the Uniform Commercial Code, as varied by this Appendix. 34. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the services described herein and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. CAP /D 88442 0722 235 APPENDIX III TD WIRE TRANSFER SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement, and the parties' Bank Internet System Appendix, and applies to all TD Wire Transfer Services ("Services") made available to Customer by Bank via the Bank Internet System. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement or the Bank Internet System Appendix, as applicable. To the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, or with the terms and conditions of the Bank Internet System Appendix, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Description of the Services. 1.1 The Services described in this Appendix provide Customer with the capability to transfer funds from specific Account(s) with Bank to other accounts (the "Recipient Account(s)") as directed via the Bank Internet System. The Recipient Account(s) may be Customer accounts or third -party accounts, and may be with Bank or with domestic or foreign third -party financial institutions. Customer may use the Services to initiate one-time wire transfers, or to create templates for wire transfers made on a repetitive basis which involve the same Customer Account and Recipient Account ("Repetitive Transfer(s)"). All wire transfers must be initiated by an Authorized Representative of Customer. 1.2 Prior to Customer's use of the Services, Customer must first agree to and transmit all instructions in accordance with all of the terms, conditions and security procedures associated with the Bank Internet System, as further set forth in the Cash Management Master Agreement, including the Bank Internet System Appendix. 2. Execution of Wire Transfers. 2.1 By submitting a wire transfer, Customer authorizes Bank to withdraw the amount of any requested wire transfer which Customer may authorize and instruct via the Bank Internet System, plus any applicable fees and charges, which may be withdrawn from Customer's designated Account or from the wire transfer amount. Subject to the terms of this Appendix, Bank will accept and execute a wire transfer received from Customer that has been authenticated by Bank and that is in conformity with the Security Procedure (as further described below), cut-off times and other requirements as described in this Appendix and associated Bank Setup Form(s) and other documentation. 2.2 All wire transfers to accounts at other depository institutions are transmitted using the Fedwire funds transfer system owned and operated by the Federal Reserve Bank, or a similar wire transfer system used primarily for funds transfers between financial institutions. Notwithstanding the foregoing or anything to the contrary in this Appendix, Bank may use any means of transmission, HC# 4811-7511-8896 v.1 32 of 54 funds transfer system, clearing house, intermediary or correspondent bank that Bank reasonably selects to transfer funds from time to time. 2.3 Each wire transfer must include the following information in addition to any information which Bank may require for proper identification and security purposes: (i) Account number from which the funds are to be withdrawn, (ii) amount to be transferred, (iii) currency type, (iv) Customer's address, (v) name and ABA routing number or SWIFT BIC of the payee's (i.e., beneficiary's) bank, and (vi) name, address and account number of the payee (i.e., beneficiary). In the event a wire transfer describes an account number for the payee that is in a name other than the designated payee, Bank may execute the wire transfer to the account number so designated notwithstanding such inconsistency. 2.4 Templates created by Customer for Repetitive Transfers are the sole and exclusive responsibility of Customer. Except as otherwise expressly prohibited or limited by law, Customer agrees to release and hold Bank harmless from any loss or liability which Customer may incur after Bank has executed a Repetitive Transfer, including without limitation, any loss due to Customer error in creating the Repetitive Transfer template. 3. Time of Execution. 3.1 Bank will execute each authenticated wire transfer that is in conformity with all security procedures, cut-off times and other requirements set forth herein. Bank may require additional authentication of any wire transfer request. Bank reserves the right to reject a wire transfer request that cannot be properly authenticated. Cut- off times may be established and changed by Bank from time to time. Instructions for wire transfers received after such cut-off times may be treated by Bank for all purposes as having been received on the following Business Day. 3.2 Except for future -dated wire transfers, domestic wire transfers (U.S.-based receivers) initiated and approved by Bank's cut-off time on a Business Day will be processed that same day if that day is also a Business Day for Bank's correspondent facility and the recipient bank; wire transfers initiated and approved after Bank's cut-off time for domestic wire transfers will be processed the next Business Day if that day is also a Business Day for Bank's correspondent facility and the recipient bank. Future -dated 0621 236 domestic wire transfers will be initiated on the effective date requested by Customer, not on the date Customer entered the transaction using the Services. 3.3 Bank may handle wire transfers received from Customer in any order convenient to Bank, regardless of the order in which they are received. 4. International Wires. 4.1 International wire transfers (non -U.S. receivers) of foreign currency initiated and approved by Bank's cut-off time for international wire transfers of foreign currency on a Business Day, and an international wire transfer of U.S. currency initiated and approved by Bank's cut-off time for international wire transfers of U.S. currency on a Business Day, will be processed within the industry standard delivery time (in most, but not all cases, two (2) Business Days). Foreign wire transfers may be subject to delays based on tune -zone issues; the remote location of the recipient bank; cultural differences with respect to holidays and times of observation, etc.; and incorrect or incomplete information supplied by Customer. 4.2 Bank shall send Customer's authorized and authenticated wire transfers to foreign banks through any bank which is a member of Bank's correspondent network. Neither Bank nor any of Bank's correspondents shall be liable for any errors, delays or defaults in the transfer of any messages in connection with such a foreign wire transfer by any means of transmission. Customer acknowledges that foreign currency wire transfers must be based on a currency that Bank trades and that all rates of exchange will be the rate in effect at the time of execution of the wire transfer order, or at any other rate as may be agreed to by the parties. If the financial institution designated to receive the funds does not pay the payee (beneficiary) specified in a wire transfer order that is payable in foreign currency and the funds are returned to Bank, Bank will not be liable for a sum in excess of the value of the funds after they have been converted from foreign currency to U.S. dollars at Bank's buy rate for exchange at the time the cancellation of the wire transfer order is confirmed by Bank, less any charges and expenses incurred by Bank. If Customer elects to initiate an international wire transfer in U.S. currency, Customer acknowledges that the receiving bank may elect to pay the payee (beneficiary) in foreign currency at an exchange rate determined by the receiving bank. Customer agrees to bear all risk of loss due to fluctuation in exchange rates, and Customer shall pay Bank any costs and expenses of foreign currency conversion at Bank's then - prevailing rates, terns and conditions. Customer is advised that Bank's prevailing exchange rates may be less favorable to Customer than market exchange rates. 4.3 Bank makes no guarantee or representation as to the availability of funds at the foreign destination. Bank makes no express or implied warranty as to the time or date the wire transfer will arrive at the receiving bank, the amount of any fees to be charged by the receiving bank, or the time or date the payee (beneficiary) will receive credit for funds. 4.4 Customer understands and acknowledges that if the named payee (beneficiary) does not HC# 4811-7511-8896 v.l match the account at the receiving bank, there is a risk the payee may not receive the wired funds. If the transfer is not received or credited in a timely manner, Bank will follow normal and customary procedures to complete the wire transfer, determine the location of the wired funds and/or return the funds to Customer. If Bank is unable to determine that the funds have been credited to the payee's account or have the funds returned, Customer assumes all financial liability or risk of loss for the amount of the wire transfer. 4.5 International wire transfers are subject to any and all applicable regulations and restrictions of U.S. and foreign governments relating to foreign exchange transactions. Bank has no obligation to accept any international wire transfer(s) directed to or through persons, entities or countries restricted by government regulation or prior Bank experience with particular countries. To the extent not otherwise prohibited by law, in connection with any international wire transfer(s) involving a transfer to or from any country outside of the U.S., and except as otherwise expressly prohibited or limited by law, Customer agrees to release and hold Bank harmless from any loss or liability which Customer may incur after Bank has executed the international wire transfer(s), including without limitation, any loss due to failure of a foreign bank or intermediary to deliver the funds to a payee (beneficiary). 5. Cancellation and Amendment of a Wire. 5.1 An Authorized Representative may request that Bank attempt to cancel or amend a wire transfer previously received from Customer. If a cancellation or amendment request is received by Bank before the wire transfer is executed and with sufficient time to afford Bank an opportunity to act upon Customer's request, Bank may, on its own initiative but without obligation, make a good faith effort to act upon such request. In the event Customer's cancellation or amendment request is received after execution of Customer's wire transfer request, Bank will attempt to have the wire transfer returned. Notwithstanding the foregoing, Bank shall have no liability for the failure to effect a cancellation or amendment, and Bank makes no representation or warranty regarding Bank's ability to amend or cancel a wire transfer. Except as otherwise expressly prohibited or limited by law, Customer agrees to indemnify Bank against any loss, liability or expense which Bank incurs as a result of the request to cancel or amend a wire transfer and the actions Bank takes pursuant to such request. Without limiting the foregoing, Customer agrees to be responsible for any losses arising from currency conversions effected by Bank pursuant to any foreign currency wire transfer order previously received from Customer that Customer subsequently requests be cancelled or amended. 5.2 Customer acknowledges and agrees that after a wire transfer order has been accepted by the payee's (beneficiary's) financial institution, return of such fiords must be authorized by the beneficiary, and Bank has no responsibility to procure the return of such funds. If Customer asks Bank to recover funds which Bank has already transferred, Bank shall be under no obligation to do so. If Customer deposits with Bank an amount reasonably determined in good faith by Bank to approximate the costs and expenses (including attorney's fees) which Bank may incur in attempting to recover the fiords 33 of 54 0611 237 transferred, Bank may, in its sole discretion make an attempt to recover the funds. In lieu of such a deposit, Bank may request Customer to provide a bond or other assurance of payment reasonably satisfactory to Bank. Upon such deposit, or the supplying of such other assurance, Bank may take such action as it deems reasonable under the circumstances, including, for example, sending a request to reverse the transfer to any financial institution that received such fiords. In no event, however, shall Bank be deemed to have guaranteed or otherwise assured the recovery of any portion of the amount transferred, nor to have accepted responsibility for any amount transferred. 6. Notice of Rejection or Return. Bank shall have no liability for wire transfers sent by Bank as directed by Customer which cannot be completed or which are returned due to incorrect information furnished by Customer. Customer is required to fully complete payee (beneficiary) name, and address, as the payee (beneficiary) bank may elect to return an otherwise valid wire transfer for incomplete payee (beneficiary) information. Bank may reject or impose conditions that must be satisfied before it will accept Customer's instructions for any wire transfer, in its sole discretion, including without limitation Customer's violation of this Appendix, Customer's failure to maintain a sufficient Account balance, or Bank's belief that the wire transfer may not have in fact been authorized. A wire transfer may also be rejected by an intermediary or payee (beneficiary) bank other than Bank, or by operation of law. If a wire transfer is rejected by Bank, Bank will notify Customer by telephone, by electronic means, by facsimile or by mail, depending on the method of origination. Upon rejection or return, Bank shall have no further obligation to act upon a wire transfer, nor shall Bank have any liability to Customer due to rejection by another person in the wire transfer process, or the fact that notice was not given or was not given at an earlier time, or within any specified time of receipt, acceptance, execution or payment of any wire transfer. 7. Security Procedure. 7.1 Customer agrees that the security procedures used by Customer and set forth or incorporated by reference in this Appendix and/or associated documents, including but not limited to the Bank Internet System Appendix, are a commercially reasonable method of providing security against unauthorized wire transfers and for all other instructions from Customer to Bank (hereinafter the "Security Procedure"). Any wire transfer by Customer shall bind Customer, whether or not authorized, if transmitted in Customer's name and accepted by Bank in compliance with the Security Procedure. Customer also agrees that any election Customer may make to change or refuse the Security Procedure is at Customer's risk and that any loss resulting in whole or in part from such change or refusal will be Customer's responsibility. 7.2 Bank may, from time to time, modify the Security Procedure. Except as expressly provided otherwise in this Appendix or in the parties' Cash Management Master Agreement, any such changes generally will be effective immediately upon notice to Customer as described in the parties' Cash Management Master Agreement. Customer will be deemed to accept any such changes if Customer HC# 4811-7511-8896 el accesses or uses any of the Services after the date on which the change becomes effective. 7.3 Bank may, from time to time, propose additional or enhanced security procedures to Customer. Customer understands and agrees that if it declines to use any such additional or enhanced procedures, it will be liable for any losses that would have been prevented by such procedures. Notwithstanding anything else contained in this Appendix, if Bank believes immediate action is required for security of Bank or Customer funds, Bank may initiate additional security procedures immediately and provide prompt subsequent notice thereof to Customer. 7.4 Customer hereby acknowledges that the Security Procedure is neither designed nor intended to detect errors in the content or verify the contents of a wire transfer by Customer. Accordingly, any errors contained in wire transfers from Customer shall be Customer's responsibility, and Customer shall be obligated to pay or repay (as the case may be) the amount of any such wire transfer. No security procedure for the detection of any such Customer error has been agreed upon between Bank and Customer. 7.5 Customer is strictly responsible for establishing and maintaining its own procedures to safeguard against unauthorized wire transfers. Customer covenants that no employee or other individual will be allowed to initiate wire transfers in the absence of proper authority, supervision and safeguards, and agrees to take reasonable steps to maintain the confidentiality of the Security Procedure and any Access Devices and related instructions provided by Bank in connection with any Security Procedure utilized by Bank and/or Customer. If Customer believes or suspects that any such Access Devices, Security Procedure, information or instructions have been disclosed to or accessed by unauthorized persons, Customer agrees to notify Bank immediately by calling 1-866-475- 7262, followed by written confirmation to TD Bank, N.A., Attn: Treasury Management Services Support, 6000 Atrium Way, Mt. Laurel, New Jersey, 08054. The occurrence of unauthorized access will not affect any transfers made in good faith by Bank prior to receipt of such notification and within a reasonable time period thereafter. 8. Accuracy; Inconsistency of Receiving Beneficiary Name and Account Number. In submitting any order or related instructions, Customer shall be responsible for providing all necessary information required by Bank in conjunction with the Services. The Services are only designed to respond to information provided by Customer. Accordingly, any inaccuracy in any information provided by Customer may result in an unintended transfer of funds. Bank bears no responsibility and shall not be liable to Customer for any information provided by Customer in an order or related instructions that are inaccurate, incomplete or otherwise incorrect. -When placing an international wire transfer order, Customer may be responsible for entering certain information provided to Customer by Bank, which may include, but is not limited to, the applicable exchange rate and/or a contract number. Customer acknowledges and agrees that Bank will not be liable for any loss, liability or expense incurred as a result of a Customer error related to entry of such required information. Customer acknowledges and agrees that, in accordance with Article 4A of the 34 of 54 0611 238 Uniform Commercial Code, Bank shall be entitled to rely upon the numbers supplied by Customer to identify banks, payees (beneficiaries) and other parties to the wire transfer, even if those numbers disagree or are inconsistent with the names of those parties as provided by Customer. Bank and any other receiving financial institution shall have no obligation to determine whether a name and number identify the same person or institution. Customer acknowledges that payment of an order or related instructions may be made by the payee's (beneficiary's) bank on the basis of an identifying or bank account number even if it identifies a person different from the named payee (beneficiary). 9. Payment; Authorization to Charge Account. Customer agrees to pay Bank the amount of each wire transfer received from Customer on the Business Day Bank executes said wire transfer or at such other time as Bank may determine. Bank will validate that sufficient funds are available in Customer's Account prior to a wire transfer being executed. Generally, if sufficient funds are not available in Customer's Account, the wire transfer will not be executed by Bank. Bank may, without prior notice or demand, obtain payment of the amount of each wire transfer by debiting the Account designated. In the event there are not sufficient funds available in the Account, Bank also reserves the right to debit any other Account that Customer maintains with Bank. 10. Wire Confirmation; Account Reconciliation. Customer may confirm the execution of a wire transfer via the Bank Internet System. Completed wire transfers will also be reflected in Customer's periodic Account statement. Customer acknowledges and agrees that Bank is not obligated to provide Customer with a separate advice or notice for each completed wire transfer. If Customer requests that Bank provide a special notice and Bank agrees to do so, Bank reserves the right to impose a Service Fee for such notice in accordance with the Cash Management Master Agreement. 11. Service Providers. Bank may use a service provider to perform, as Bank's agent, all or any portion of Bank's obligations under this Appendix. Customer may be required to direct wire transfers and other requests to said provider. 12. Bank Reliance; Authentication. HC# 4811-7512-8896 v.1 12.1 Bank shall be entitled to rely in good faith on communications it receives as being given or sent by an Authorized Representative and as being genuine and correct. Bank shall not be liable to Customer for the consequences of such reliance. 12.2 BANK MAY TAKE SUCH ADDITIONAL STEPS AND IMPLEMENT SUCH PROCEDURES AS IT MAY DEEM APPROPRIATE TO VERIFY THE AUTHENTICITY OF ANY WIRE TRANSFER. BANK MAY DELAY THE EXECUTION OF ANY WIRE TRANSFER PENDING COMPLETION OF A CALL-BACK, OR RECEIPT OF ANOTHER FORM OF VERIFICATION WHICH IS SATISFACTORY TO BANK. IF BANK IS UNABLE TO OBTAIN SATISFACTORY VERIFICATION, BANK, IN ITS SOLE DISCRETION, MAY REFUSE TO EXECUTE ANY WIRE TRANSFER. In no event shall Bank be liable for any delay in executing a wire transfer or for failure to execute a wire transfer due to the absence of satisfactory verification. 12.3 Bank may electronically record any telephone conversations between Bank personnel and Customer with respect to the Services, in accordance with applicable law. 12.4 Wire transfer transactions are subject to all the foregoing and all regulations governing electronic transactions, including but not limited to Article 4A of the Uniform Commercial Code. 13. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. 35 of 54 0621 239 Bank APPENDIX VII TD LOCKBOX SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Lockbox Retail and TD Lockbox Wholesale Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The Services described in this Appendix provide Customer with a remittance or payment processing arrangement that offers an efficient method for the collection and processing of certain payment items payable to Customer, and the accompanying documents or information associated with such payment items. Through the Services, Bank receives, opens and processes checks and credit card payment authorizations (if authorized) for Customer, and the accompanying documents for such payments, that are addressed to Customer and delivered to U.S. Post Office Boxes or locations designated by Bank. 1.1 Retail Lockbox. The Services consolidate and expedite the automated processing of high volume, low dollar remittance payments received by Customer, as applicable, from its retail clients. 1.2 Wholesale Lockbox. The Services also consolidate and expedite the automated processing of low volume, large dollar remittance payments received by Customer, as applicable, from its vendors or other third parties. 2. Customer Obligations & Authorizations. 2.1 Customer will maintain an Account at Bank as the designated depository Account for the Services ("Designated Account"). Customer will maintain balances in the Designated Account or other Customer Account(s) sufficient to offset any returns for payments that cannot be deposited. 2.2 Customer authorizes Bank to establish United States Postal Service ("USPS") Caller Boxes (as such terms are defined by the USPS) (collectively, the "PO Box(es)" or "Lockbox(es)") at pre -determined postal facilities, or to utilize existing Customer -established PO Boxes, to collect payments and accompanying documents remitted for the benefit of Customer. If a Customer - established PO Box will be used for purposes of the Services, Customer is solely responsible for any and all charges related to the rental and use of the PO Box. HCO 4853-3056-9514 v.1 0716 2.3 Customer agrees to provide Bank with unrestricted and exclusive access to Customer -established Lockbox location(s) and contents, and Bank has the sole right to process remittance materials contained therein. 2.4 Prior to deposit into the Designated Account, the Lockbox contents will not be available to Customer, except upon request to Bank, and only with Bank's consent. 2.5 Customer is responsible for instructing all of its clients about the requirements of the Services as they relate and apply to payments and accompanying documents remitted by those clients for the benefit of Customer. 2.6 Customer authorizes Bank to endorse all payments received by Bank with a standard lockbox endorsement used by Bank and without the signature of payee, date or payor name, and to deposit payments, including those with restrictive legends and endorsements, into Customer's Designated Account. 2.7 Bank may delegate all or a portion of its duties or rights regarding the Services and as set forth in this Appendix to Bank Third Parties (as defined in the Cash Management Master Agreement). Bank may change the Bank Third Parties to which it delegates these responsibilities in its sole and exclusive discretion. 3. Mail Collection and Processing. 3.1 Mail Collection and Pre -Processing. Bank shall collect the mail from Lockboxes in accordance with Bank's schedule, as such schedule may change from time to time. Bank will transport mail by courier to its processing location(s), open the mail containing checks, share drafts, money orders, credit card payment information (if authorized), invoices or other contents (hereinafter referred to collectively as "Lockbox Item(s)"). Bank will also accept overnight delivery packages as part of the Services, when the same are properly addressed to and receipt properly confirmed by Services' personnel at Bank's processing location(s), and will process the same in accordance with this Appendix. For each Lockbox Item Page 36 of 54 240 received, using ordinary care, Bank will date stamp, inspect and process the Lockbox Item as specified in the Services' Setup Form(s). 3.2 Item Processing. Lockbox Items will be processed according to the Account Agreement, except as modified by this Appendix. 3.2.1 Domestic Checks. Bank may accept for deposit to Customer's Account all items made payable to or endorsed by Customer as an individual payee or joint payee, regardless of whether those items bear Customer's endorsement, subject to Bank's verification and final inspection. Customer may also provide a list of acceptable payee(s) (an "Acceptable Payee") on the Services' Setup Form(s). 3.2.2 Foreign Checks. Foreign check deposits are processed in accordance with the Services' Setup Form(s). Checks drawn on U.S. banks in U.S. dollars will be deposited. Checks drawn in foreign currency (including Canadian checks in CAD) will be processed according to the Services' Setup Form(s). 3.2.3 Cash. Cash deposits are not accepted for processing under the Services. Customer shall advise its clients not to send currency or coin to the Lockbox. Bank is not responsible for cash intentionally sent to the Lockbox, but never processed. Notwithstanding the foregoing, in the event cash is received in the Lockbox, Bank will make a good faith effort to deposit cash into Customer's Designated Account and provide a control report regarding these items to Customer. 3.2.4 Credit Cards. (a) Credit card payments may only be processed through the Lockboxes upon approval by Bank and execution by Customer of all required agreements and related documentation, including without limitation a merchant credit card processing services agreement ("Card Processing Agreement") and associated merchant account with Bank and/or another financial institution. Customer is responsible for complying with the terms of Customer's Card Processing Agreement, and with all applicable card network rules with respect to credit card payments. (b) In order to be eligible for processing by Bank, written authorizations to charge payments due Customer to the payors' credit cards ("Charge Authorizations") must be received through the Lockboxes. A Charge Authorization received in the Lockbox must contain the name of the account debtor, the account debtor's credit card number, expiration date, the three digit security code, and the amount of the payment authorized, all of which must be written or imprinted on the authorization form in a reasonably legible manner. If any one of these items of information is missing from a Charge Authorization, or is, in the sole judgement of Bank or its service provider, not sufficiently legible for processing purposes, the Charge Authorization will not be processed, and will be forwarded to Customer as set forth below. (c) Bank will proceed to process for approval each' Charge Authorization received in the Lockbox which contains the information required above and is otherwise eligible for processing. Bank will seek approval from the issuer of the applicable credit card for the payment transaction set forth on the Charge Authorization. Bank will submit for settlement each Charge Authorization approved in this manner. (d) Credit card payments will be batched independently from regular payment items in the Lockbox. Following processing of Charge Authorizations for approval, Bank will segregate those Charge Authorizations which are approved from those Charge Authorizations which are declined. Reports will be sent to Customer regarding these deposits based on the Services' Setup Form(s). 3.2.5 Other Items. Items received from the Lockbox other than Lockbox Items or cash will be forwarded to Customer as unprocessed items. Except for its gross negligence or willful misconduct, Bank shall not be responsible for any claimed loss or disappearance of cash or other payments in bearer form. 3.2.6 Additional Terms. (a) Customer guarantees to Bank the payment of all deposited items identified in this Section 3.2. Bank will return to Customer any payments that cannot be deposited. Lockbox Items with apparent alterations will not be deposited. Under no circumstances shall Bank be responsible or liable for identifying or failing to identify stale -dated and post-dated checks or checks specifying "payment in full" (or similar statements) in Customer's Lockbox Items, or for processing such items. Customer acknowledges that if checks specifying "payment in full" (or similar statements) are negotiated, that could adversely affect Customer's ability to collect any balance owed on the related liability. Customer understands and agrees that Bank makes no representation or warranty that it will apply an endorsement intended to preserve Customer's rights to collect the full amount owed or that any endorsement that applies to a Lockbox Item will in fact preserve Customer's HC 4814-6754-1549 Page 37 of 54 0410 241 right to collect the full amount owed. Customer assumes all risks of negotiation of such items. (b) Bank's receipt of Customer's mail hereunder shall not make Bank a bailee of the Lockbox Items. With respect to the Lockbox Items that are deposited and become part of the balance in Customer's Designated Account, Bank and Customer will have a debtor -creditor relationship as normally exists between a depository bank and its depositors. If Customer is a governmental entity, Customer agrees that, in performing the Services, Bank is not acting as an agent for the collection of taxes. 3.3 Remittance Transaction Processing. 3.3.1 Transactions processed as part of the Services are comprised of two separate documents: the remittance coupon, stub or invoice (hereinafter "Coupon(s)") and the drawer's payment. High- speed image -enabled devices capture Customer's retail remittance documents, including checks and Coupons. Transactions are captured using image -enabled capture devices that collect both financial and non-financial information. The actual document capture requirements are set forth in the Services' Setup Form(s). 3.3.2 Bank will process transactions with (i) one payment and one Coupon, (ii) multiple payments and/or multiple Coupons, and (iii) one or more payments and no Coupon, as specified in the Services' Setup Form(s). Bank will process remittance transactions as set forth in the Services' Setup Form(s). 3.3.3 To accomplish high-speed automated processing, Bank does not examine checks (including, without limitation, any inspection for missing signatures, dates, payees, or endorsements) except as the parties may otherwise be described in the Services' Setup Form(s). Customer agrees that Bank does not assume any responsibility or liability for its failure to discover and forward to Customer items bearing restrictive legends or endorsements (e.g., "paid in full," "final payment" or words of similar meaning). Bank will use a standard endorsement that will be considered Customer's payee endorsement. 3.3.4 Transaction totals are captured and balanced against individual check totals generated and with the Coupon (if applicable) supplied by Customer's client. Full check MICR line capture is supported during the capture process. Once balanced, transactions are released for deposit processing. 3.3.5 As part of the Services, wholesale payments will be imaged, and such payments may be re -associated with the Coupon (if enclosed), to the extent set forth in the Services' Setup Form(s). 4. Deposit Processing. 4.1 Bank prepares items for deposit into Customer's Designated Account. These deposited items are memo posted throughout the Business Day and reflect the amount of items processed. The credit and collection of these items are subject to the terms and conditions of the Account Agreement. 4.2 Bank reserves the right to not process any item received for deposit if Bank decides not to handle that item. If Bank makes this decision, Bank will forward the item to Customer for further handling. 4.3 Transactions processed after Bank's cut-off time or during a non -Business Day will be credited on the next Business Day, as set forth in the Services' Setup Form(s). 5. Insufficient Funds and Returned Items. 5.1 Bank may deduct the amount of an item deposited to the Designated Account or other Account if Bank receives notice that the item has not been paid and has been returned. Returned items are processed in accordance with the Services' Setup Form(s). Returned items that are not re -deposited, or that have been returned a second time, will be debited from the Designated Account or another Account at Bank, as set forth in the Services' Setup Form(s), even if Bank could have made a claim for reimbursement on the item from the bank on which the item was drawn or from another bank. Bank may charge an item against the Designated Account or other Account even if the charge results in an overdraft. 5.2 Bank may incur losses or expenses due to a delay in returning an unpaid item if the item's endorsement is obscured by other material on the back of the item. If an item is issued with material on the back (for example, a carbon band), Customer agrees to indemnify Bank against any related losses and expenses, including any finance charges, legal fees and court costs incurred in Bank's attempt to receive payment on the item. 6. Remittance Reporting. 6.1 Remittance Package. At the end of each Business Day on which Customer has Lockbox activity, Bank may send a remittance package with contents as selected in the Services' Setup Form(s). 6.2 CD-ROM. Bank may create a CD- ROM of images of processed checks and remittance detail, at Customer's request, on a daily, weekly, or monthly basis. If the documents are unable to be imaged, Bank reserves the right to forego scanning and forward the original documents to Customer. Bank has no liability for illegible images created from a damaged or illegible original document, and such original document will be forwarded to Customer, if requested, assuming that such original has not yet been destroyed. 6.3 Electronic Transmission. 6.3.1 Subject to the terms and conditions of and in accordance with Bank's Appendix for Data Transmission Services, remittance data will be HC 4814-6754-1549 Page 38 of54 0420 242 transmitted to Customer electronically at such time(s) as selected in the Services' Setup Form(s). 6.3.2 Retail Lockbox. As applicable, the optical character recognition ("OCR") scan line is captured from a retail remittance Coupon with check digit validation (when supplied on the Coupon), as outlined in the Services' Setup Form(s). Bank will provide scan line requirements for this purpose. Bank may accommodate additional fields by mutual agreement and designation in the Services' Setup Form(s). Bank may provide a daily file of retail payments formatted to interface with Customer's accounts payable system. 6.3.3 Wholesale Lockbox. As applicable, information is taken from the wholesale remittance Coupon together with payment information, as outlined in the Services' Setup Form(s), to create a data transmission of receivables information. 6.3.4 Reporting fields will be determined based on Customer's capture specifications and available fields or information on the Coupon, as set forth in the Setup Form(s). All Customer requests for re- transmission of a failed transmission should occur within one (1) Business Day of the originally scheduled transmission. 6.4 Web Access. 6.4.1 As may be made available by Bank from time to time, Customer may use a Web -based service to access a variety of reporting options for the Services ("Web Access"), including reporting of deposits, images of Lockbox Items, and online review of deposit details subject to pre -established data entry fields. Information is available for review by Customer as the Lockbox Items are processed. 6.4.2 A user guide and procedures shall be provided to Customer as well as hardware requirements. Customer agrees not to use Web Access in connection with any activity other than those permitted by this Appendix, unless Bank provides prior written approval. Customer shall use Web Access solely for the purposes described in this Appendix. When Bank uses Web Access, Customer accepts the Terms of Use for Web Access, as posted on Web Access pages from time to time, and all selected features and functions of the modules on Web Access. 6.4.3 Bank shall use commercially reasonable efforts to notify Customer promptly of any system interruption, and notify Customer in advance of any update releases or other permitted changes that may reasonably be expected to affect Customer. Bank may make available to Customer new service releases and enhancements from time to time. 6.4.4 Bank offers its general security system capabilities to protect the integrity of the account transaction and remittance information. If a password, PIN, or other security device or identifier is used in connection with Web Access, Customer is responsible for the safekeeping of that device or identifier. Customer shall not disclose the security device or identifier to any unauthorized individual. Bank will establish for Customer a logon ID ("user ID"). Customer will establish a unique password. Bank recommends that Customer change its password periodically. Customer agrees to notify Bank immediately if Customer becomes aware of (i) any loss or theft of Customer's user ID and/or password; or (ii) any unauthorized use of Customer's user ID and/or password. Within established security procedures, Bank will be responsible for: (i) restricting Web Access to valid user IDs/passwords, (ii) restricting access to customer information only to valid user IDs/passwords assigned to such user, and (iii) properly acting upon instructions and communications associated with a valid user ID/password assigned to a specific user. Bank may provide optional security features to include such features as passwords that expire at pre -established time periods or restrict log -on user ID to certain times in the day. Bank may cancel any user ID/password if Bank has reason to suspect improper use. Prior to cancellation, Bank shall confer with Customer, unless in Bank's reasonable opinion it would be impracticable or imprudent to do so. 7. Retail Lockbox Remittance Document Testing. Customer and Bank understand and agree that the Services are dependent on the successful testing and pre -approval by Bank of Customer's remittance documents. Customer agrees that it will not change, in any respect, any remittance document or its contents without thirty (30) days' minimum prior written notification to Bank, and subsequent acceptance, testing, and approval by Bank. Bank reserves the right to test Customer's remittance documents from time to time to assess poor quality Coupons that may require manual processing by Bank. All custom, non-standard assessment, testing and review, and any required custom handling, may be subject to additional Bank fees. 8. Liability. Remittance processing is a highly automated service, and Bank uses commercially reasonable efforts to process items. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement and the Account Agreement. 9. Termination of this Appendix. In the event that Customer terminates the Services, Bank may forward mail from a closed Lockbox to the address designated by Customer, in writing, for a period of ninety (90) calendar days. Bank charges apply and are payable in advance of Bank providing such forwarding service. If Customer does not select forwarding service, mail will be returned to sender. Customer understands that PO Box numbers may not be transferable, as the PO Box may be issued within Bank's unique zip code, and, therefore, must be refired. 10. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies HC 4814-6754-1549 Page 39 of 54 0410 243 available from Bank. This Appendix replaces and supersedes time as a different or amended Appendix is accepted in all prior agreements on file with respect to the Services and writing by Bank or the Cash Management Master Agreement shall remain in full force and effect until termination or such is terminated. HC 48/4-6754-/549 Page 40 of U 0420 244 APPENDIX VIII TD DIGITAL EXPRESS SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Digital Express Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The Services provide Customer with an Internet -based system designed to expedite check depositing services by enabling Customer to use check conversion technology to submit to Bank, for deposit to Customer's Account(s), electronic check images and associated information ("Check Images") in lieu of the original checks from which such Check Images were obtained. These Services are provided in accordance with the Check Clearing for the 21 s' Century Act ("Check 21"). 2. Hardware Requirements. 2.1 In order to use the Services, Customer must utilize certain Bank -approved image/scanner hardware (the "Hardware"). Customer must either (a) have or obtain the Hardware, as approved by Bank ("Customer Hardware"), or (b) utilize Hardware provided by Bank (`Bank Hardware"). Customer must also have a Computer as outlined in the Cash Management Master Agreement, as Bank may specify and approve from time to time. 2.2 If Customer elects option (a), Customer Hardware, Customer is solely responsible for the purchase, maintenance, performance and adequacy of Customer Hardware. Bank makes no representations or warranties concerning, and has no responsibility or liability for, Customer Hardware or its use with the Services. Bank shall have no liability or responsibility whatsoever for errors, including but not limited to processing or transmission errors, resulting from any Check Images transmitted by Customer using Customer Hardware. 2.3 If Customer elects option (b), Bank Hardware, Customer agrees as follows: (i) Bank will retain ownership of Bank Hardware provided by Bank for use with the Services. (ii) Customer will not use Bank Hardware in connection with any remote check deposit service offered by any other financial institution other than Bank. (iii) Customer acknowledges that Bank did not manufacture Bank Hardware and has provided the same to Customer on an "AS IS" basis, and warrants only that, upon delivery, Bank Hardware will conform to Bank's then current applicable standards for use of the Services. Bank Hardware is provided to Customer with a standard manufacturer's warranty. Customer shall thereafter be responsible for purchasing any and all additional manufacturer warranty period(s) beyond the standard warranty, as may be made available by the manufacturer, for complying with all manufacturer recommendations for preventive maintenance, or for repairing or replacing Bank Hardware. (iv) Customer shall bear the entire risk of loss, theft, damage or destruction of Bank Hardware from the date of receipt until return shipment to a Bank branch or shipped postage -paid to Bank. Such loss, damage or destruction of Bank Hardware shall not relieve Customer of the obligation to make payments or to comply with any other obligation under this Appendix. (v) Upon termination of this Appendix by either party for any reason, Customer shall return Bank Hardware in the same condition as when originally provided to Customer, except for ordinary wear and tear resulting from proper use. Bank Hardware shall be packed for proper return shipment to such place as Bank shall specify. In the event Bank Hardware has not been returned within fifteen (15) Business Days of termination of this Appendix, Customer shall make payment to Bank in an amount equivalent to the depreciated value for Bank Hardware. Where agreed to by Bank in its sole discretion, Customer may purchase Bank Hardware from Bank, subject to the terms and conditions of Bank's bill of sale or similar agreement. 3. Check Images; Image Replacement Documents. 3.1 Customer may use the Services to deposit original paper checks using the Hardware to scan, capture and submit Check Images to Bank through the Services' Internet site ("Services Site"). Eligible items for deposit include original checks that Customer has received for payment or deposit, and obligations of financial institutions (travelers' checks, cashier checks, official checks, and money orders). 3.1.1 The following check types are not eligible for use with and may not be processed using the Services: (i) Checks drawn on banking institutions outside the U.S. or in currencies other than U.S. Dollars; (ii) Irregular checks (e.g., where the numerical and written amounts are different); HC#4823-607/-2503 v.! 41of54 0520 245 (iii) Previously -returned checks; (iv) Checks payable to or in cash; (v) Checks exceeding any Customer transaction or file limits as Bank may establish from time to time; and (vi) Checks that are postdated or more than six (6) months old. 3.1.2 The following check types are restricted for use with and may only be processed using the Services with prior approval by Bank (as further described below): (i) Checks payable to a third party (rather than to Customer) (hereinafter "Third Party Checks"); and (ii) Remotely -created checks (or remotely created payment orders deposited into or cleared through the check clearing system) (hereinafter, collectively referred to simply as "remotely -created checks" unless otherwise expressly specified). Notwithstanding the foregoing, under no circumstances may Customer use the Services to deposit any check types that Customer is banned or prohibited from using or accepting under applicable law, including, by way of example only, the use or acceptance by sellers and telemarketers of remotely created payment orders (which include remotely -created checks) as defined and described in the Federal Trade Commission's Telemarketing Sales Rule. 3.2 Third Party Checks. Customer shall request approval from Bank prior to any use of the Services to process Third Party Checks, which permission Bank may grant or refuse in its sole and exclusive discretion. Such use of the Services and the scope of permitted Third Party Checks may be limited or restricted by Bank in its sole and exclusive discretion, including without limitation to those Third Party Checks that have been properly endorsed over to Customer as further described below. 3.2.1 If approved to use the Services to process Third Party Checks, Customer shall make the following additional representations and warranties upon each delivery to Bank of an Electronic File (as defined below) containing Third Party Checks: (i) All endorsement(s) on the original Third Party Checks are legible, genuine and accurate; Customer has instituted procedures to ensure that each original Third Party Check was authorized by the drawer in the amount stated on the original Third Party Check and to the payee(s) stated on the original Third Party Check; Each Third Party Check contains all endorsements applied by the prior payee(s) stated on the original Third Party Check and has been properly endorsed by such payee(s) for payment over to Customer; Customer is authorized to enforce each Third Party Check that is transmitted to Bank using the Services, and Customer is authorized to obtain payment of and each Third Party Check is properly payable to and enforceable by Customer; Consistent with the terms of this Appendix as well as the Account Agreement, if a Third Party Check is returned, Customer owes Bank the amount of the Third Party Check, regardless of when the Third Party Check is returned. Bank may withdraw funds from Customer's Account to pay the amount owed to Bank, and if there are insufficient funds in Customer's Account, Customer will owe the remaining balance; and Except where otherwise provided, all other provisions of this Appendix shall apply to Third Party Checks and to Customer's use of the Services in conjunction with Third Party Checks. 3.3 Remotely -Created Checks. A remotely -created check, unlike a typical check or draft, is not created by the paying or drawer bank and does not contain the signature of the account -holder (or a signature purporting to be the signature of the account -holder). In place of a signature, the check generally has a statement that the account -holder authorized the check or has the account -holder's name typed or printed on the signature line. Customer shall request approval from Bank prior to any use of the Services to process remotely -created checks, which permission Bank may grant or refuse in its sole and exclusive discretion. Such use of the Services and the scope of permitted remotely - created checks may be limited or restricted by Bank in its sole and exclusive discretion, and/or by applicable law. 3.3.1 If approved to use the Services to process remotely -created checks, Customer shall be deemed to make the following additional representations and warranties upon each delivery to Bank of an Electronic File containing remotely -created checks: (i) Customer has received express and verifiable authorization to create the check in the amount and to the payee that appears on the check; (ii) Customer will maintain proof of the authorization for at least two (2) years from the date of the authorization, and supply Bank with such proof, if Bank requests it, within five (5) Business Days of the request; and (iii) Consistent with the terms of this Appendix as well as the Account Agreement, if a remotely -created check is returned, Customer owes Bank the amount of the check, regardless of when the check is returned. Bank may withdraw funds from Customer's Account to pay the amount owed to Bank, and if there are insufficient funds in Customer's Account, Customer will owe the remaining balance. (iv) All other provisions of this Appendix shall apply to remotely -created checks and to Customer's use of the Services in conjunction with remotely -created checks. 3.3.2 Customer agrees to operate in accordance with applicable laws and regulations regarding remotely -created checks, including but not limited to, Regulation CC and applicable warranties, the Uniform Commercial Code and applicable warranties, the Bank HC04823-6071-2503vJ 42of54 0520 246 Secrecy Act, USA Patriot Act, and the Federal Trade Commission Telemarketing Sales Rule, as the same may be amended from time to time. Without limiting the foregoing, Customer represents, warrants and covenants that it will not use the Services to deposit any check types that Customer is banned or prohibited from using or accepting under applicable law. 3.4 If at any time Bank believes that Customer's use of the Services to deposit Third Party Checks and/or remotely -created checks may create a risk of financial loss or otherwise result in unacceptable exposure to Bank, including but not limited to unacceptable rates of returned items, or may be subject to or otherwise involve irregular, unauthorized, fraudulent or illegal activity, Bank may, at its sole discretion, immediately and without prior notice to Customer, suspend or terminate Customer's use of the Services, and/or Customer's use in conjunction with Third Party Checks and/or remotely -created checks, in addition to but not in lieu of all other rights and remedies available to Bank under this Appendix and the Agreement. 3.5 Customer shall enter check information into the Services Site, imaging the front and the back of each paper check and capturing the information contained in the MICR line of the paper check. Customer shall review each Check Image for clarity to ensure that the item is legible and can be reproduced as an Image Replacement Document ("IRD(s)" or "Substitute Check(s)"). Using the Services, an electronic file will be created ("Electronic File") that contains electronic information relating to and converted from the paper checks that have otherwise been truncated or removed from the forward collection and payment process (each an "Electronic Item"). To ensure accuracy, Customer shall balance the dollar total of each deposit to the sum of the Electronic Items prior to transmitting the Electronic File to Bank. 3.6 Customer authorizes and agrees that Bank may, in conjunction with and via the Services, add the image of an endorsement, an electronic endorsement or a `virtual endorsement" for Customer to the Check Image of any check or item deposited under the terms of this Appendix, and that such endorsement shall be legally enforceable against Customer even though the endorsement did not appear and was not placed on the original paper check or item. In the event Bank does supply a virtual or similar endorsement, Bank may instruct Customer not to otherwise endorse the check or item so as to minimize any conflict with the legibility of the virtual endorsement. 3.7 Customer shall determine that the Electronic File has been received based on the confirmation page of the Services Site. Bank will indicate acceptance of the transactions and any transactions rejected by the Services on the Services Site. Customer shall process any rejected transactions as paper checks through the normal paper check deposit process. 3.8 Customer shall enter the dollar amount of a paper check(s), along with any other optional information that Customer would like retained by the Services Site. The Services Site provides for reports and exporting of the information that has been entered. 3.9 Bank shall electronically deliver to Customer, through the Services Site, a confirmation of receipt for each deposit submitted, and the deposit shall be considered received by Bank when such confirmation is delivered to Customer. Deposits received via the Service by 9:00 p.m. Eastern Time on any Business Day or at any time on any Calendar Day that is not a Business Day will be posted to Customer's Account on the same Business Day, with next Business Day availability of deposits based on Bank's Account Agreement. Bank reserves the right to reject any single Check Image or group of Check Images for any reason, before or after delivery of confirmation of receipt. 3.10 Customer acknowledges and agrees that in the event any deposited item converted to a Check Image is returned for any reason (for example, non -sufficient funds), Bank may return the item to Customer by delivery of either a Substitute Check or the Check Image, including all return information. Return items will be handled in the same manner as check deposits in accordance with the Account Agreement. 4. Customer Responsibilities and Obligations. 4.1 Customer represents, warrants and covenants that after truncation of an original check, Customer shall safeguard the Electronic Items and original checks identified in any Electronic File previously sent to Bank in order to ensure that such original checks and Electronic Items: (i) shall not be submitted for deposit with Bank or any other financial institution, except in accordance with the terms and conditions of this Appendix related to un- processable Electronic Items and (ii) shall not be transferred for value to any other person or other entity. As an additional security control, Customer shall ensure that the front of each original check is properly marked with wording or other marking in order to reflect that the deposit has been sent for processing. 4.2 Upon receipt of any transmitted Electronic File, Bank shall be the lawful owner of such Electronic File and each Electronic Item with respect to original checks imaged in that Electronic File. Customer shall retain all original checks truncated pursuant to this Appendix for a period of thirty (30) Calendar Days in a manner that is mutually agreed upon between the parties hereto. However, for accounting, auditing and other legal purposes, Customer may keep electronic records regarding its receipt and deposit of such checks, provided such internal electronic records cannot be used to generate duplicate Electronic Files for purposes of depositing and presenting such checks for payment. 4.3 Customer shall deliver promptly to Bank, upon its request, the original check if a request is made within the retention period provided above, or Substitute Check or Sufficient Copy thereof, for each Electronic Item created by Customer. The term "Sufficient Copy" means a copy of an original check that accurately represents all of the information on the front and back of the original check as of HC# 4823-6071-2503 v.1 43 of 54 0520 247 the time the original check was truncated or is otherwise sufficient to determine whether or not a claim is valid. 4.4 Customer shall not create at any time an Electronic File under this Appendix or otherwise use the Services to capture or maintain tax identification numbers or non-public personal information of any third -party from whom Customer has received an original check for payment or deposit or which Customer has selected for truncation. 4.5 Customer agrees to abide by all federal and state laws, and rules and regulations applicable to banking transactions. 4.6 If Bank receives a returned item for a check deposited by Customer after Customer has terminated this Appendix, then Customer agrees that Bank may debit Customer's Account, or if such Account has been closed by Customer, Bank will send a request for payment to Customer, and Customer agrees to pay Bank within a commercially reasonable period of time. 4.7 Customer agrees to have controls in place to ensure that the Services, including the Hardware and checks processed through the Hardware, are properly safeguarded and stored in accordance with the timeframe set forth in Section 4.2 above and in a secure location, under effective control, in order to safeguard against unauthorized access and use. Customer shall ensure that all such checks are thereafter destroyed by a cross -shredder, and/or pulped or otherwise destroyed in such a manner that does not permit recovery, reconstruction or future use of the checks. Customer agrees that it will not simply throw out such paper checks with other classes of records or with miscellaneous trash. Customer agrees to be responsible for all damages resulting from lack of proper controls over processed checks. 4.8 Customer shall notify Bank of any interruptions in, delay or unavailability of, or errors caused by the Services immediately upon discovery thereof. Notwithstanding the foregoing, in the case of any error caused by the Services and subject to Section 11 of the parties' Cash Management Master Agreement, Customer shall provide such notice within thirty (30) Calendar Days of the date of the earliest notice to Customer which reflects the error. Failure of Customer to provide such notice to Bank shall relieve Bank of any liability or responsibility for such error, omission or discrepancy. 5. Customer Warranties, Covenants. Customer makes the following representations, warranties and covenants as of the effective date of this Appendix and upon each delivery of an Electronic File to Bank: 5.1 An Electronic File may include an electronic representation of a Substitute Check. Customer shall redeposit a returned original check or a returned Electronic Item by delivering the same to any Bank branch location. A returned original check or returned Electronic Item may not be re -submitted by Customer using the Services. Customer may only use the Services to re -submit an IRD or Substitute Check that has been returned to Customer for non -sufficient funds. 5.2 With respect to each Electronic Item in any Electronic File delivered to Bank, the Electronic Item accurately represents all of the information on the front and back of the original check as of the time that the original check was created by the payor; contains all required and valid endorsements; replicates the MICR line of the original check; and meets all FRB standards of and technical requirements for sending Electronic Items to any as set forth in the applicable FRB operating circular, or as established by the American National Standards Institute ("ANSI") or any other regulatory agency, clearing house or association. Specifically, each Electronic Item of each original check shall be of such quality that the following information can clearly be read and understood by sight review of such Electronic Item: (i) the amount of the check; (ii) the payee of the check; (iii) the signature of the payor of the check; (iv) the date of the check; (v) the check number; (vi) the information identifying the payor and the paying bank that is preprinted on the check, including the MICR line; and (vii) all other information placed on the original check prior to the time an image of the original check is captured, such as any required identification written on the front of the check and any endorsements applied to the back of the check. 5.3 Customer shall also ensure that the following information is captured from the MICR line of each original check: (i) the American Bankers Association routing transit number ("RTN"); (ii) the number of the account on which the check is drawn; (iii) when encoded, the amount of the check; and (iv) when encoded, the auxiliary on -us field (serial number) and the process control field of the check. 5.4 The Electronic Item bears all endorsements, if any, applied by previous parties that handled the check in any form (including the original check, as Substitute Check, or another paper or electronic representation of such original check or Substitute Check) for transfer, forward collection or return. 5.5 Customer is entitled to enforce the original check, or Customer is authorized to obtain payment of the original check on behalf of a person who is either entitled to enforce the original check or is authorized to obtain payment on behalf of a person entitled to enforce the original check. 5.6 Customer will submit financial and/or other additional information to Bank upon request in order for Bank to establish or amend Customer's deposit and file limits as further described in Section 6 and as established by HC# 4823-6071-2503 v.l 44 oj54 0520 248 Bank and communicated to Customer, or to otherwise monitor or audit Customer's use of the Services and compliance with this Appendix. Customer will also notify Bank of any change in transaction volumes or financial condition that may have an effect on this Appendix or Customer's use of the Services. 5.7 Customer shall also request permission from Bank in advance of any change in locations at which the Services are used or change in the physical location or address of any Hardware from its original Bank -approved location or address, which permission Bank may grant or refuse in its sole and exclusive discretion. In addition to but not in lieu of the foregoing, Customer shall request advance permission from Bank prior to using the Services and/or any Hardware outside the continental United States and/or outside of those states (including the District of Columbia) in which Bank operates from time to time. Bank may grant or decline such request in its sole and exclusive discretion and in consideration of applicable law. 5.8 Both Customer and the clients with whom it does business are reputable and are not using Bank as a conduit for money laundering or other illicit purposes. 5.9 None of Customer's transactions to be processed by Bank are prohibited by any applicable law, regulation, order, rule or judgment. 5.10 Customer Electronic Files will not contain viruses that originate from Customer's Computer, in accordance with the requirements of Section 7 of the Cash Management Master Agreement. 5.11 None of Customer's employees are a national of a designated blocked country or "Specially Designated National", "Blocked Entity", "Specially Designated Terrorist", "Specially Designated Narcotics Trafficker", or "Foreign Terrorist Organizations" as defined by the United States Office of Foreign Assets Control. 5.12 Customer is responsible for implementing operational controls and risk -monitoring processes, as well as conducting periodic self -assessments of the security of the Services and its processes and practices with regard to use of the Services. 6. Deposit and File Limits. Customer's use of the Services is limited as more particularly described in the Services' Setup Form(s), and as the parties may otherwise agree from time to time. Such limits may include but are not limited to, e.g., maximum total daily dollar amounts; maximum per item dollar amounts; maximum percentage of monthly transactions returned; and maximum number of items to be deposited per day. Administrator(s) and Authorized Users. 7.1 Customer may designate Administrator(s) relative to the Services, as set forth in the Services' Setup Form(s). Customer is solely responsible for designating its Administrator(s). Customer agrees to provide Bank, upon Bank's request, with any certificate or documentation that is acceptable to Bank specifying the name of the person who is authorized to be designated as Administrator(s) from time to time. 7.2 The Administrator(s) may designate other Administrators and/or Authorized Users. Customer accepts as its sole responsibility an Administrator's designation of other Administrators and Authorized Users. Customer understands that the Administrator(s) will control, and Customer authorizes the Administrator(s) to control, access by other Administrator(s) and Authorized Users of the Services through the issuance of passwords. The Administrator(s) may add, change or terminate Customer's Authorized Users from time to time and in his/her sole discretion. Bank does not control access by any of Customer's Authorized Users to any of the Services. 7.3 Customer will require each Administrator and each Authorized User to comply with all provisions of this Appendix and all other applicable agreements. Customer acknowledges and agrees that it is fully responsible for the failure of any Administrator or any Authorized User to so comply. 7.4 Whenever any Authorized User leaves Customer's employ or Customer otherwise revokes the authority of any Authorized User to access or use the Services, Customer must notify the Administrator immediately, and the Administrator is solely responsible for de -activating such Authorized User's password. Whenever an Administrator leaves Customer's employ or Customer otherwise revoke an Administrator's authority to access or use the Services, Customer remains fully responsible for all use of the passwords and the Services. 8. Security Procedures. 8.1 Upon successful enrollment, Customer can access the Services via the Services Site, or any website that Bank may designate from time to time, using the security procedures as described from time to time. Bank will provide Customer with an organizational or User ID that is the electronic identification, in letters and numerals, assigned to Customer by Bank that will be used for log -in by Customer's Administrator(s) and Authorized User(s). Bank will also provide the Administrator(s) initially designated by Customer with an initial individual password to gain access to the Services. The Administrator(s) and Authorized User(s) must change his or her individual password from time to time for security purposes, as prompted by the Services Site, or more frequently. 8.2 Customer acknowledges that Administrator(s) will, and Customer authorizes Administrator(s) to, select other Administrators and Authorized Users by issuing to any person an individual password. Customer fiuther acknowledges that Administrator(s) may, and Customer authorizes Administrator(s) to, change or de -activate the individual password and/or any individual password from time to time and in his or her sole discretion. 8.3 Customer acknowledges that, in addition to the above individual passwords, access to the Services includes, as part of the Access Devices, a multi- factor authentication security procedure at log -in for Customer, including Administrator(s) and Authorized Users. HC# 4823-6071-2503 v.1 45 Of 54 0520 249 This additional security procedure involves an additional access code and Computer registration that is in addition to User ID and individual password security (hereinafter "Enhanced Log -in Security"). 8.4 Bank does recommend as a commercially reasonable security procedure that Customer implement dual control of the Services, whereby one Authorized User creates, edits, cancels, deletes and restores an Electronic File, and a second different Authorized User reviews the Electronic File prior to it being released. 8.5 Customer accepts as its sole responsibility the selection, use, protection and maintenance of confidentiality of, and access to, the Access Devices. Customer agrees to take reasonable precautions to safeguard the Access Devices and keep them confidential. Customer agrees not to reveal the Access Devices to any unauthorized person. Customer further agrees to notify Bank immediately if Customer believes that the confidentiality of the Access Devices has been compromised in any manner. 8.6 The Access Devices identify and authenticate Customer (including Administrator(s) and Authorized Users) to Bank when Customer accesses or uses the Services. Customer authorizes Bank to rely on the Access Devices to identify Customer when Customer accesses or uses any of the Services, and as signature authorization for any transaction, transfer or other use of the Services. Customer acknowledges and agrees that Bank is authorized to act on any and all communications or instructions received using the Access Devices, regardless of whether the communications or instructions are authorized. Bank owns the Access Devices, and Customer may not transfer them to any other person or entity. If this Appendix is terminated, Customer's access to the Services will be immediately terminated. 8.7 Customer acknowledges and agrees that the Access Devices and other security procedures applicable to Customer's use of the Services are a commercially reasonable method for the purpose of verifying whether any transaction, transfer or other use of the Services was initiated by Customer. Customer agrees to be responsible for any transmission Bank receives through the Services that is processed by Bank in accordance with the security procedures, even if such transmission is not authorized by Customer, including any fraudulent transmission by Customer's employees or agents. Customer agrees that any election Customer may make to change or waive any optional security procedures recommended by Bank is at Customer's risk and that any loss resulting in whole or in part from such change or waiver will be Customer's responsibility. Customer further acknowledges and agrees that the Access Devices are not intended, and that it is commercially reasonable that the Access Devices are not intended, to detect any errors relating to or arising out of a transaction, transfer or any other use of the Services. 8.8 If Customer has reason to believe that any Access Devices have been lost, stolen or used (or may be used) or that a transaction, transfer or other use of the Services has been or may be made with any Access Devices without Customer's permission, Customer must contact its Administrator. Customer also agrees to provide Bank with immediate notice of any actual or suspected breach in the security of or other unauthorized access to the Services through use of Customer's Computer. Such notice shall include a description of the incident in general terms; a description of the type of information or data related thereto that was the subject of unauthorized access or use; a description of what Customer has done to protect the information or data from further unauthorized access; and a telephone number or other contact information so that Bank can call for further information or inquiry. In no event will Bank be liable for any unauthorized transaction(s) that occurs with any Access Devices. 9. Limitation of Liability. In addition to but not in lieu of the limitations of liability and related provisions contained in the parties' Cash Management Master Agreement, Bank shall have no liability for any error or delay in performing the Services and shall have no liability for not affecting a Check Image, if: (i) Bank receives actual notice or has reason to believe that Customer has filed or commenced a petition or proceeding for relief under any bankruptcy or similar law; (ii) The ownership of funds involving a Check Image or Customer's authorized representative's authority to transmit a Check Image is in question; (iii) Bank suspects a breach of the security procedures; (iv) Bank suspects that Customer's Account has been used for illegal or fraudulent purposes; or (v) Bank reasonably believes that a Check Image is prohibited by federal law or regulation, or otherwise so provided in the Appendix. Further, Bank will not be liable to Customer for any unauthorized actions or fraud initiated or caused by Customer or its employees or agents. Bank will also be excused from failing to transmit or delay in transmitting a Check Image if such transmittal would result in it exceeding any limitation imposed on it by any governmental or regulatory body. 10. Audit Rights and Site Visits; Internal Controls. Bank, its accountants, auditors or agents shall have the right to conduct site visits of Customer, as well as review, inspect and audit, at Bank's expense and with reasonable notice, and at any time as Bank may in good faith deem necessary or reasonable during or after the term of this Appendix, Customer's compliance with the terms of this Appendix, including but not limited to Customer's use of the Services, its Computer and security infrastructure, and the books and records of Customer related to: (i) Customer's activities hereunder and/or (ii) conformance with Customer's obligations hereunder. In addition, Bank reserves the right, in its sole and exclusive discretion, to require Customer to HC# 4823-6071-1503 v.1 46 of 54 0520 250 implement additional internal controls at Customer location(s) where use of the Services occurs and to request information from Customer relative to Customer's security infrastructure. Any review, inspection or audit to be performed by or for Bank pursuant to this Section 10 shall be conducted only during normal business hours, using reasonable care not to cause damage and not to interrupt the normal business operations of Customer. 11. Survival. The provisions of Section 9, as well as Customer's obligation to produce the original of, or a Sufficient Copy of, any item accepted within any deposit upon Bank's request in accordance with Section 4 hereof, and Customer's liability for breach of any representation and/or warranty made in Sections 3, 4 and 5 hereof shall survive termination of this Appendix and/or the Cash Management Master Agreement. 12. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. HC# 4813-6071-2503 v.1 47 of 54 0520 251 APPENDIX X TD ACCOUNT RECONCILEMENT SERVICES - PARTIAL This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Account Reconcilement Services — Partial (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The Services described in this Appendix will assist Customer in reconciling and managing the check activity in Customer's designated demand deposit account(s) ("Authorized Accounts"). Use of the Services does not affect any of Customer's obligations, which are described in the Account Agreement, to discover and report unauthorized or missing signatures and endorsements, or alterations on checks drawn on Customer's Accounts. 2. Submission of Data. 2.1 The Services allow Customer to periodically receive a file and/or report of paid check data to include paid check date, paid check amount and paid check serial number, in accordance the Services' Setup Form(s) ("Paid Check Data"). Customer shall have its checks prepared in accordance with Bank specifications and will supply Bank with 25 voided checks to be used for testing. The checks will be tested to ensure the paper stock is of a minimum weight and is encoded with Bank's ABA (routing and transit) number, account number and check number to ensure the readability of the MICR line on Bank's equipment. 2.2 Customer agrees to receive Paid Check Data in the specified format and medium, on the scheduled day(s) and at the place(s) specified by Bank and agreed to by Customer as set forth in the Services' Setup Form(s). 2.3 Prior to receiving a Paid Check Data file, Customer will be provided a test file by Bank to ensure the readability of the Paid Check Data on Customer's equipment. Customer agrees to report any test file failures. M482576.3) 2.4 In accordance with Customer's Account schedule, Bank will provide a file of Paid Check Data in accordance with the Services' Setup Form(s) and a paper listing of paid checks, stop payments, missing checks, and paid date. Bank shall report Substitute Checks (as defined in the Cash Management Master Agreement) on the same basis as ordinary checks / items. 3. Statement of Transactions. Within three (3) Business Days following the scheduled date for reconcilement, as set forth in the Services' Setup Form(s), Bank will provide a report including a listing of paid checks, checks that have been identified as stop payments and checks missing in sequence. Customer shall review the listing and report any errors as set forth in the Cash Management Master Agreement between Bank and Customer. Customer's use of the Services or Bank's receipt of information associated with the Services does not increase Bank's duties or obligations with respect to Customer's Accounts. 4. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Partial Reconcilement Services Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. 0110 252 APPENDIX XIII TD ZERO BALANCE ACCOUNT SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Zero Balance Account Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The Services described in this Appendix permit Customer to maintain a zero or other pre- selected target balance in certain secondary or sub -accounts that are associated with a primary commercial checking account, all as further described below. 1.1 Customer will designate a primary checking Account (the "ZBA Parent Account"), and one or more secondary Accounts (the "ZBA Sub -Accounts") to be associated with the Services, as set forth in the Services' Setup Form(s). 1.2 Through the Services, Customer authorizes Bank to transfer funds between the ZBA Parent Account and ZBA Sub -Accounts in order to bring the respective balances of the ZBA Sub-Account(s) to the pre- selected target balance(s), as set forth in the Services' Setup Form(s). 1.3 Customer may select a target balance for each Sub -Account in the amount of $0 or a pre -defined collected or ledger balance amount. 1.4 After posting all debits and credits to the ZBA Sub -Accounts each Business Day, each ZBA Sub - Account's balance in excess of the target balance, including both collected and uncollected balances, will be transferred automatically to the ZBA Parent Account, unless Customer elects to transfer collected balances only. 1.5 In the event that, after posting of all debits and credits to the ZBA Sub -Accounts each Business Day, the balance in any ZBA Sub -Account is less than the target balance, sufficient funds from the ZBA Parent Account will, to the extent available, be transferred to the ZBA Sub -Account to reach the target balance. 1.6 Bank is under no obligation to transfer funds to any one or more ZBA Sub -Accounts to the extent (W1040745.1) that such transfers) would cause an overdraft of collected balances in the ZBA Parent Account. Bank may, in its sole discretion, determine the priority in which funds from the ZBA Parent Account are applied to ZBA Sub-Account(s). 1.7 Customer agrees that Bank is not acting as a fiduciary with respect to funds in either the ZBA Parent Account or in any ZBA Sub -Account. 1.8 If any of the ZBA Sub -Accounts are owned by an Affiliate of Customer, then: (1) Customer represents and warrants it has all necessary power and authority to transfer funds into and out of such ZBA Sub- Account(s), and (2) Customer will indemnify Bank from any claim by any owner(s) of such ZBA Sub-Account(s) or any third party with respect to a transfer into or out of such ZBA Sub-Account(s). 2. Termination; Effectiveness. 2.1 The parties may terminate this Appendix and/or the Services in accordance with the terms and conditions of the Cash Management Master Agreement. This Appendix and associated Services shall automatically and immediately terminate if the ZBA Parent Account and/or the ZBA Sub-Account(s) are closed. 2.2 Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. 49 oJ54 0820 253 APPENDIX XVII TD DATA EXCHANGE SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to TD Data Exchange Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The Services provide Customer with financial information and/or data delivery services that allow Customer to consolidate multi -bank account balance and related transaction information to one financial institution's information delivery platform. With the Services, Bank may send Customer's Account information to another financial institution (the "Outbound Data Exchange" feature), or Bank may receive Customer's account information from other financial institution(s) (the "Inbound Data Exchange" feature), and report the consolidated information to Customer via the Bank Internet System and/or other similar online systems, some of which may also include a single sign -on feature. 2. Use of Third Parties. The Services involve the movement of financial information and/or data between financial institutions using third -party clearing house arrangements. Financial institutions contract with participating third parties to send and receive their customers' account balance and transaction information and/or data. For purposes of this Appendix, the financial institution receiving financial information and/or data on behalf of and at the instruction of its client is considered the "Lead Bank". The financial institution(s) sending financial information and/or data to the Lead Bank on behalf of and at the instruction of its client is considered the "Reporting Bank". 3. Outbound Data Exchange. 3.1 Bank acts as a "Reporting Bank" when Bank transmits Customer's designated Account(s) balance and/or related transaction information (the "Customer - Designated Outbound Data") to Bank's contracted third - party clearing house. This third -party clearing house will arrange for delivery of the Customer -Designated Outbound Data to the Lead Bank. The Lead Bank will be responsible for delivery of the Customer -Designated Outbound Data to Customer. 3.2 Customer authorizes Bank to transmit the Customer -Designated Outbound Data associated with CAP ID 0722 the previous Business Day, as set forth in the Services' Setup Form(s) and approved by Bank. 3.3 Customer will work with the Lead Bank to facilitate the receipt of the Customer -Designated Outbound Data from Bank's third -party clearing house. Customer acknowledges and agrees that the Lead Bank must be able to receive the Customer -Designated Outbound Data from Bank's third -party clearing house through the standard file layouts in use by Bank and/or Bank's third -party clearing house from time to time. 3.4 Bank will transmit the Customer - Designated Outbound Data associated with the previous Business Day to facilitate Customer's daily review of account balance and related transaction information through the Lead Bank's information delivery system. 3.5 Bank is not responsible for the correctness, accuracy, completeness, redundancy, integrity or timeliness of the Customer -Designated Outbound Data delivered to Customer through the Lead Bank's information delivery system. Bank is not responsible for the acts or omissions of Customer's Lead Bank or its participating third -party clearing house(s), as the same may change from time to time. 3.6 Customer acknowledges and agrees that use of the Services' Outbound Data Exchange feature requires that non-public Customer Account and financial information (including, without limitation, balance and transaction details) be transmitted by Bank to a specified third party, for further transmission to Customer's designated Lead Bank and possibly through third -party clearing house(s) of the Lead Bank. By selecting the Services' Outbound Data Exchange feature, Customer expressly authorizes Bank to disclose such non-public Customer Account and financial information as necessary in its performance and delivery of the Services. 4. Inbound Data Exchange. 50 of 5488076 254 4.1 Bank acts as the "Lead Bank" when Bank receives Customer's previous Business Day's account(s) balance and/or associated transaction information relating to Customer's accounts at other financial institutions ("Foreign Account(s)"), from such other financial institutions (as Reporting Banks) designated by Customer through designated third -party clearing house(s). All Foreign Account balance and/or associated transaction information received by Bank from such Reporting Banks' designated third -party clearing house(s) (the "Customer - Designated Inbound Data") shall be delivered by Bank to Customer through the Bank Internet System. 4.2 The Services' Inbound Data Exchange feature is an information delivery service only, and Bank reserves the right to limit the Customer -Designated Inbound Data provided to Customer to specific fields of information. 4.3 Bank cannot guarantee the delivery, content or accuracy of Reporting Banks' Customer - Designated Inbound Data. 4.4 Bank's sole responsibility with respect to Customer -Designated Inbound Data is to display data actually received by Bank in a format or file layout acceptable to Bank. Bank shall have no responsibility or liability with respect to unavailability of, errors in, or other aspect of Customer -Designated Inbound Data. In the event that Foreign Accounts are denominated in currencies other than U.S. dollars, Customer agrees that reporting under this Appendix may not accurately reflect the applicable currency of the Foreign Account, and Customer bears sole responsibility for properly interpreting Customer - Designated Inbound Data in foreign currencies. 4.5 Bank requires prior written notice from Customer of any modification to the Customer -Designated Inbound Data. CAP ID 0711 4.6 Customer acknowledges and agrees that use of the Services' Inbound Data Exchange feature requires that certain non-public Customer account and financial information (including, without limitation, balance and transaction details) be transmitted to Bank from specified Reporting Banks and the use of third -party clearing house(s) of Reporting Banks and Bank. By selecting the Services, Customer expressly authorizes Bank to use such non-public Customer account and financial information as necessary in its performance and delivery of the Services via the Bank Internet System. 4.7 By selecting the Services, Customer represents and warrants to Bank that it has executed and delivered to the applicable Reporting Banks all necessary authorizations for such Reporting Banks to transmit Customer's non-public account and financial information to Bank. Bank is not responsible for the acts or omissions of Customer's Reporting Bank(s) or its participating third - party clearing house(s), as the same may change from time to time. 5. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. Remainder of page intentionally left blank. 5/ of 5488076 255 APPENDIX XXII TD ACH POSITIVE PAY SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Automated Clearing House ("ACH") Positive Pay Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement or the NACHA Rules (as defined below). Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Definitions. "Authorized Account" means Customer's Account(s) designated by Customer and maintained at Bank to which the Services will apply. "ACH Entry" means an order or request for the transfer of money to an Authorized Account (a "Debit Entry") as also defined in the NACHA Rules. ACH Authorizations" means Customer's written instructions and authorization criteria provided to Bank in conjunction with the set-up and implementation of the Services, including the Services' Setup Form(s) and/or via a separate ACH block and filter agreement with Bank (hereinafter the "Filter Agreement"), and/or otherwise in accordance with the Services as described in this Appendix, which either prohibits all ACH Entries or permits only the posting of specified ACH Entries to an Authorized Account. "Exception Entry" means an ACH Entry (excluding ARC, BOC, POP, RCK, or XCK SEC Codes) that does not meet Customer's ACH Authorizations previously provided to Bank (and may also be referred to within the Services as a "Rejected" Entry), and that is therefore scheduled to be returned to the Originator of the ACH Entry. "NACHA Rules" means the National Automated Clearing House Association's ("NACHA") Operating Rules and Operating Guidelines, which govern the ACH system. "Pay Decision(s)" means Customer's confirmation instruction to Bank to pay/post an Exception Entry. "Return Decision(s)" means Customer's confirmation instruction to Bank to not pay/post an Exception Entry but to instead return the ACH Entry to the Originator. "Return Default Disposition" means the Services' automatic default disposition of all ACH Entries that do not meet Customer's ACH Authorizations, whereby all such ACH Entries are scheduled to be returned to the Originator of the ACH Entry. 2. Services. 2.1 The Services described in this Appendix will provide Customer with a means to: (1) review ACH Entries received on a particular Customer Account that are scheduled to be returned to the Originator as an Exception Entry in accordance with Customer's ACH Authorizations and the Return Default Disposition; and (2) confirm the return of the Exception Entry through a Return Decision, or to override the Return Default Disposition and instruct Bank to pay/post the Exception Entry to Customer's Account through a Pay Decision. 2.2 Customer acknowledges that the Services have been identified by Bank as a service that can reduce the risk of fraudulent ACH Entries being posted against Customer's Account(s) when such Services are adopted and properly utilized by Customer. By conforming to the terms and conditions of this Appendix, Customer acknowledges and agrees that it may significantly reduce the chance that fraudulent ACH Entries will post to Customer's Account(s) by electronically matching incoming ACH transactions to ACH Authorizations. 3. Customer Authorizations. 3.1 Customer will designate Authorized Account(s) to be used with the Services via the Services' Setup Form(s). 3.2 As applicable, Customer shall begin use of the Services with either: (a) any ACH Authorizations initially submitted by Customer to Bank and then established by Bank on Customer's behalf in conjunction with the set- up and implementation of the Services, or (b) any existing ACH Authorizations on Customer's Authorized Account(s) that have been established via a Filter Agreement. Customer may add to or modify those initial or existing ACH Authorizations from time to time as set forth herein. Customer shall be responsible for the accuracy and completeness of all information provided to Bank both through the use of the Services and via the Services' Setup Form(s). 3.3 Customer may submit additional ACH Authorizations, make changes to initial or existing ACH Authorizations, or delete initial or existing ACH CAP 1D 52 of 5488102 0722 256 Authorizations related to the Authorized Account(s) online via the Services' module of the Bank Internet System. Such changes shall become effective on the next Business Day following the day on which the changes were made by Customer. Each Business Day, Bank will provide an updated list of successfully processed ACH Authorizations to Customer via the Services. In the event Customer submits a change or addition to the ACH Authorizations that is incomplete, contains an error or that cannot otherwise be processed by Bank, Bank will use commercially reasonable efforts to notify Customer on the next Business Day that the associated ACH Authorization(s) has been rejected. Until such time as Customer reviews and corrects it, the rejected ACH Authorization(s) will not appear on the updated list of successfully processed ACH Authorizations that Customer receives. 3.4 In the event Customer fails to fully and accurately populate or complete all requested fields associated with the ACH Authorizations, the following will also apply: (a) If Customer does not insert a specified maximum dollar amount, then no maximum dollar amount shall apply with respect to the applicable ACH Entry(ies) or transaction(s) subject to the ACH Authorization(s). (b) If Customer does not insert a specified expiration date, then no expiration date shall apply to the applicable ACH Entry(ies) or transaction(s) subject to the ACH Authorization(s). 4. Processing of ACH Entries and Reporting of Exception Entries. Bank will electronically compare each ACH Entry presented to Bank for settlement against Customer's Authorized Account(s) on a Business Day (including those presented by other depository institutions, ACH Operators or by Bank) with Customer's ACH Authorizations. In accordance with that review, on each Business Day, Bank will: (a) allow incoming ACH Entries that match Customer's ACH Authorizations to post to Customer's Authorized Account(s); and (b) treat as Exception Entries all incoming ACH Entries that do not match Customer's ACH Authorizations and will provide to Customer, through the Bank Internet System, a listing of all Exception Entries that are otherwise scheduled for Return Default Disposition. Customer must monitor, review and issue a Pay Decision or Return Decision on each Exception Entry reported through the Bank Internet System by the pre -established deadline set forth within the Services. Customer may also set up alerts to be sent to Customer by a pre -established time each Business Day advising Customer whether or not there are any Exception Entries to be reviewed that Business Day. 5. Payment and Dishonor of Exception Entries. 5.1 Customer may choose to confirm the Return Default Disposition of individual Exception Entries presented via the Services by providing a Return Decision to Bank by the pre -established deadline set forth within the Services, in which case such Exception Entries will be automatically returned to the Originator. 5.2 Customer may choose to override the Return Default Disposition of individual Exception Entries presented via the Services by providing a Pay Decision to Bank by the pre -established deadline set forth within the Services, in which case such Exception Entries will be paid/posted to Customer's Authorized Account(s) at the end of the current Business Day. 5.3 Customer may choose not to or may otherwise fail to review and provide a Pay Decision or a Return Decision for any Exception Entries by the pre- established deadline, in which case the Return Default Disposition will apply and all such Exception Entries will be automatically returned to the Originator. 6. Customer and Bank Communications. 6.1 Customer shall use the Services' module of the Bank Internet System to report all Pay Decisions or Return Decisions. Bank shall not be obligated to comply with any Pay Decision or Return Decision received in a format or medium, after a pre -established deadline, or at a place not permitted under this Appendix or the Services' Setup Form(s), and may instead treat any such communication from Customer as a Return Decision or otherwise apply the Return Default Disposition to such communication. 6.2 Bank is not responsible for detecting any Customer error contained in any ACH Entries presented, decisioned, returned or processed, or in any Pay Decision or Return Decision by Customer. 6.3 In the event that Bank is unable to provide Customer with a listing of Exception Entries through the Bank Internet System for Customer's Pay Decision or Return Decision as described in Section 4, the Return Default Disposition shall apply in accordance with Customer's previously established ACH Authorizations. 6.4 Customer's ACH Authorizations hereunder will be accepted by Bank subject to the condition that ACH transactions have not already been posted or are not otherwise in the process of posting, and that Bank will have a reasonable opportunity to act on Customer's ACH Authorizations before any such processing. 6.5 Bank shall have a reasonable time after receipt of Customer's request to implement the Services and shall not assume responsibility for stopping ACH transactions that have already been posted to Customer's Account(s). 6.6 Bank shall be bound only to exercise ordinary care in attempting to post or return ACH Entries as described in this Appendix. 7. Remedies. 7.1 Bank Liability. To the extent permitted by applicable law, the liability of Bank under this Appendix shall in all cases be subject to the provisions of the parties' Cash Management Master Agreement, including, without CAP /D 53 of 5488701 0722 257 limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. 7.2 Wrongful Payment/Posting. It shall constitute wrongful payment/posting by Bank if Bank pays/posts an Exception Entry for which Customer has provided a Return Decision by the pre -established deadline set forth within the Services and otherwise in accordance with the other terms of this Appendix. In the event that there is wrongful payment/posting, Bank shall be liable to Customer for the lesser of the amount of the wrongfully paid/posted Exception Entry or Customer's actual damages resulting from Bank's posting of the Exception Entry, subject to the terms of the parties' Cash Management Master Agreement. 7.3 Rightful Payment and Return. 7.3.1 If Bank honors an Exception Entry in accordance with a Pay Decision by Customer as described in Section 5.2, such payment/posting shall be rightful, and Customer waives any right it may have to assert otherwise. 7.3.2 If Bank returns an Exception Entry in accordance with a Return Decision by Customer as described in Section 5.1, or otherwise pursuant to a Return Default Disposition as described in this Appendix, the return shall be rightful, and Customer waives any right it may have to assert otherwise. 7.3.3 Customer agrees that Bank exercises ordinary care whenever it rightfully pays/posts or returns an Exception Entry consistent with the provisions of this Appendix. 8. Other Terms of the Services. 8.1 Customer acknowledges that the Services do not preclude Bank's standard ACH processing procedures or the application of the NACHA Rules, which may cause an ACH Entry to be dishonored even if Customer's instructions do not otherwise require Bank to return such ACH Entry. 8.2 Customer acknowledges that the Services do not apply to transactions between Customer and Bank, including any Bank affiliates and subsidiaries, such as loan or credit card payments ("Bank -Related Entries"). Bank is permitted to pay Bank -Related Entries whether or not Customer has included these in Customer's ACH Authorizations as reflected in this Appendix and until such time as Customer's authorization with respect to the underlying Bank -Related Entries is revoked or otherwise terminated. 8.3 Customer acknowledges that the Services are intended to be used to identify and return ACH Entries which Customer suspects in good faith are fraudulent, unauthorized or otherwise unwarranted. The Services are NOT intended to be a substitute for authorization instructions or to delay Customer's decision on ACH Entries, including but not limited to stop payment orders on ACH Entries which are not suspected in good faith to be unauthorized. If Bank suspects or deems, in Bank's sole discretion, that Customer is using the Services contrary to those intentions, Bank may require Customer to provide evidence that ACH Entries that Bank returns pursuant to Customer's instructions were in fact unauthorized. In addition, Bank may hold Customer liable for losses that Bank sustains on ACH Entries which Bank is requested to return under the Services and which Customer does not reasonably establish as unauthorized ACH Entries, including as under the NACHA Rules. 9. Termination; Effectiveness. 9.1 The parties may terminate this Appendix and/or the Services in accordance with the terms and conditions of the Cash Management Master Agreement. This Appendix and the associated Services shall automatically terminate in the event the underlying Authorized Account(s) are closed. In the event of termination of this Appendix and the associated Services, Customer's ACH Authorizations in effect as of the date of termination will remain in effect with respect to Customer's Authorized Accounts, and all ACH Entries will thereafter be processed in accordance with such ACH Authorizations. 9.2 Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services, except for any existing ACH Authorizations currently on record with regard to the Authorized Account(s) as of the date of this Appendix. Remainder of page intentionally left blank. CAP ID 54 of 5488/01 0711 258 RE I INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 19, 2023 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Director, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Award of Bid 2023046 for Hosie Shumann Restroom Construction BACKGROUND: On behalf of the Parks and Recreation Division, sealed bids were solicited for the construction of a restroom facility at the Hosie Shumann Park, located at 1760 39th Street, Vero Beach, and the connection of the facility to water and installation of a gravity sewer system. ANALYSIS Advertising Date: Bid Opening Date: Solicitation Broadcast to: Bid Documents Requested by: Replies: August 17, 2023 September 19, 2023 974 Subscribers 33 Firms 4 Firms West Building Contractor's bid was disqualified for failure to acknowledge required addenda, and failure to submit a properly -executed Trench Safety Form, per 553.60, Florida Statute. Don Hinkle Construction's bid was disqualified for lack of unit prices on the bid form. Unit prices are the basis of award, and payment for completed work, per the bid and contract documents. Close Construction's bid price as read in the bid opening was $296,688.00, however, during verification of the bids, it was noted the unit price for one of the line items, with a quantity of 105, was also listed as the total price. Per the bid and contract documents, mathematical errors are resolved in favor of the unit price listed, rather than the total. No errors were noted in the Jobear Contracting bid. The design engineer for the project, Kimley-Horn and Associates, reviewed the responsive bids, and determined Jobear Contracting to be the lowest, responsive, responsible bidder, and has recommended award to them. The Division concurs with this recommendation. Jobear has recently completed the Hallstrom Farmstead Restroom and Parking project. 259 Jobear Contracting, Inc. Palm Ba $333,313-00 Don Hinkle Construction Fort Pierce $290,193.76/DQ Close Construction Services, LLC Okeechobee $603,788.00 West Building Contractors Palm City D West Building Contractor's bid was disqualified for failure to acknowledge required addenda, and failure to submit a properly -executed Trench Safety Form, per 553.60, Florida Statute. Don Hinkle Construction's bid was disqualified for lack of unit prices on the bid form. Unit prices are the basis of award, and payment for completed work, per the bid and contract documents. Close Construction's bid price as read in the bid opening was $296,688.00, however, during verification of the bids, it was noted the unit price for one of the line items, with a quantity of 105, was also listed as the total price. Per the bid and contract documents, mathematical errors are resolved in favor of the unit price listed, rather than the total. No errors were noted in the Jobear Contracting bid. The design engineer for the project, Kimley-Horn and Associates, reviewed the responsive bids, and determined Jobear Contracting to be the lowest, responsive, responsible bidder, and has recommended award to them. The Division concurs with this recommendation. Jobear has recently completed the Hallstrom Farmstead Restroom and Parking project. 259 FUNDING: Expenses, in the amount of $333313, for this project will come from the Optional Sales Tax/Parks/Hosie Shumann Park Improvements account, number 31521072 -o66390 - 18o11. Optional Sales Tax/Parks/Hosie Shumann Park Improvements I 31521072 -o66390 -18o11 1 $333313 RECOMMENDATION: Staff recommends the Board award Bid 2023046 to Jobear Contracting, Inc., approve the agreement, and authorize the Chairman to sign the agreement after receipt and approval of the agreement and the required public construction bond by the County Attorney as to form and legal sufficiency, and after receipt and approval of the required insurance by the Risk Manager. So long as there are no changes in the dollar amount under the agreement, upon adequate completion of the work set forth in the agreement, staff is directed to make final payment and release any retainage to Jobear Contracting, Inc., after review and approval by the Purchasing Manager and the County Attorney's Office. ATTACHMENT Agreement 260 SECTION 00520 Agreement THIS AGREEMENT is by and between INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida organized and existing under the Laws of the State of Florida, (hereinafter called OWNER) and Jobear Contracting, Inc., (hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1 -WORK 1.01 CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: The proposed project consists of construction of a new restroom building, and installation of a gravity sewer, as described and shown on the bid documents, construction drawings and specifications. ARTICLE 2 - THE PROJECT 2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Project Name: Hosie -Schumann Park Restroom Construction and Water and Sewer Connection Bid Number: 2023046 Project Address: 17603 9th Street, Vero Beach, FL 32960 ARTICLE 3 - ENGINEER 3.01 Kimley-Horn and Associates, Inc. is hereinafter called the ENGINEER and will act as OWNER's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. ARTICLE 4 - CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.02 Days to Achieve Substantial Completion, Final Completion and Final Payment A. The Work will be substantially completed on or before the 180th calendar day after the date when the Contract Times commence to run as provided in paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with paragraph 14.07 of the General Conditions on or before the 210th calendar day after the date when the Contract Times commence to run. 00520-1 261 4.03 Liquidated Damages A. CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the times specified in paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. Liquidated damages will commence for this portion of work. The parties also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTOR shall pay OWNER 566.00 for each calendar day that expires after the time specified in paragraph 4.02 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER $566.00 for each calendar day that expires after the time specified in paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment. ARTICLE 5 - CONTRACT PRICE 5.01 OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents, an amount in current funds equal to the sum of the amounts determined pursuant to paragraph 5.01.A and summarized in paragraph 5.01.13, below: A. For all Work, at the prices stated in CONTRACTOR's Bid, attached hereto as an exhibit. B. THE CONTRACT SUM subject to additions and deductions provided in the Contract: Numerical Amount: $333,313 Written Amount: Three hundred thirty three thousand, three hundred thirteen dollars ARTICLE 6 - PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions and the Contract Documents., 6.02 Progress Payments. A. The OWNER shall make progress payments to the CONTRACTOR on the basis of the approved partial payment request as recommended by ENGINEER in accordance with the provisions of the Local Government Prompt Payment Act, Florida Statutes section 218.70 et. seq. The OWNER shall retain five percent (5%) of the payment amounts due to the CONTRACTOR until substantial completion. B. For construction projects less than $10 million, at the time the Owner is in receipt of the Certificate of Substantial Completion, the Owner shall have 30 calendar days to provide a list to the Contractor of items to be completed and the estimated cost 00520-2 262 to complete each item on the list. Owner and Contractor agree that the Contractor's itemized bid shall serve as the basis for determining the cost of each item on the list. For projects in excess of $10 million, owner shall have up to 45 calendar days following receipt of Certificate of Substantial Completion of the project to provide contractor with said list. C. Within 20 business days following the creation of the list, Owner shall pay Contractor the remaining contract balance including all retainage previously withheld by Owner except for an amount equal to 150% of the estimated cost to complete all of the items on the list. Upon completion of all items on the list, the Contractor may submit a payment request for the amount of the 150% retainage held by the Owner. If a good faith dispute exists as to whether one or more of the items have been finished, the owner may continue to withhold the 150% of the total cost to complete such items. The owner shall provide Contractor written reasons for disputing completion of the list. 6.03 Pay Requests. A. Each request for a progress payment shall be submitted on the application provided by OWNER and the application for payment shall contain the CONTRACTOR'S certification. All progress payments will be on the basin of progress of the work measured by the schedule of values established, or in the case of unit price work based on the number of units completed. 6.04 Paragraphs 6.02 and 6.03 do not apply to construction services work purchased by the County as OWNER which are paid for, in whole or in part, with federal funds and are subject to federal grantor laws and regulations or requirements that are contrary to any provision of the Local Government Prompt Payment Act. In such event, payment and retainage provisions shall be governed by the applicable grant requirements and guidelines. 6.05 Acceptance of Final Payment as Release. A. The acceptance by the CONTRACTOR of final payment shall be and shall operate as a release to the OWNER from all claims and all liability to the CONTRACTOR other than claims in stated amounts as may be specifically excepted by the CONTRACTOR for all things done or furnished in connection with the work under this Contract and for every act and neglect of the OWNER and others relating to or arising out of the work. Any payment, however, final or otherwise, shall not release the CONTRACTOR or its sureties from any obligations under the Contract Documents or the Public Construction Bond. ARTICLE 7 - INDEMNIFICATION 7.01 CONTRACTOR shall indemnify OWNER, ENGINEER, and others in accordance with paragraph 6.20 (Indemnification) of the General Conditions to the Construction Contract. 11111101iae3 263 ARTICLE 8 - CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following representations: A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. CONTRACTOR has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which have been identified in the Supplementary Conditions as provided in paragraph 4.06 of the General Conditions. E. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by CONTRACTOR, including applying the specific means, methods, techniques, sequences, and procedures of construction, if any, expressly required by the Contract Documents to be employed by CONTRACTOR, and safety precautions and programs incident thereto F. CONTRACTOR does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents. H. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. I. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. 00520-4 264 K. Contractor is registered with and will use the Department of Homeland Security's E -Verify system (www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for the duration of this agreement, as required by Section 448.095, F.S. Contractor is also responsible for obtaining an affidavit from all subcontractors, as required in Section 448.095(5)(b), F.S., stating the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. ARTICLE 9 - CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 00520-1 to 00520-9, inclusive); 2. Notice to Proceed (page 00550-1); 3. Public Construction Bond (pages 00610-1 to 00610-3, inclusive); 4. Sample Certificate of Liability Insurance (page 00620-1); 5. Contractor's Application for Payment (pages 00622-1 to 00622-6 inclusive); 6. Certificate of Substantial Completion (pages 00630-1 to 00630-2, inclusive); 7. Contractor's Final Certification of the Work (pages 00632-1 to 00632-2, inclusive); 8. Professional Surveyor & Mapper's Certification as to Elevations and Locations of the Work (page 00634-1 9. General Conditions (pages 00700-1 to 00700-38, inclusive); 10. Supplementary Conditions (pages 00800-1 to 00800-12, inclusive); 11. Architectural Plans for IRC Hosie Schumann Park Restroom prepared by Edlund Dritenbas Binkley (Sheets ACC, A-1 through A-3, S-1 and MEP -1) 12. Site Development Plans for Hosie Shumann Park prepared by Kimley-Horn and Associates, Inc. (Sheets C-000, S-1, C-100, C-200, C-300, C-350, C-351, and A-1) 13. Addenda 1 to 2. 14. Appendices to this Agreement (enumerated as follows): Appendix A — Permits 15. CONTRACTOR'S BID (pages 00310-1 to 00310-6, inclusive); 16. Bid Bond (page 00430-1 17. Sworn Statement Under Section 105.08, Indian River County Code, on Disclosure of Relationships (pages 00452-1 to 00452-2, inclusive); 00520-5 265 18. Sworn Statement Under the Florida Trench Safety Act (pages 00454-1 to 00454-2, inclusive); 19. Qualifications Questionnaire (page 00456-1 to 00456-2, inclusive); 20. List of Subcontractors (page 00458-1); 21. Certification Regarding Prohibition Against Contracting with Scrutinized Companies (page 00460-1); 22. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a) Written Amendments; b) Work Change Directives; c) Change Order(s); ARTICLE 10 - MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings indicated in the General Conditions. 10.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Venue 00520-6 266 A. This Contract shall be governed by 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 Contract shall be in Indian River County, Florida, or, in the event of a federal jurisdiction, in the United States District Court for the Southern District of Florida. 10.06 Public Records Compliance A. Indian River County is a public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall: (1) Keep and maintain public records required by the County to perform the service (2) Upon request from the County's Custodian of Public Records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Contractor or keep and maintain public records required by the County to perform the service. If the Contractor transfers all public records to the County upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the Custodian of Public Records, in a format that is compatible with the information technology systems of the County. B. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (772) 226-1424 publicrecords(a--)indianriver.gov Indian River County Office of the County Attorney 1801 27' Street Vero Beach, FL 32960 C. Failure of the Contractor to comply with these requirements shall be a material breach of this Agreement. 11I11.MI&A 267 IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and CONTRACTOR. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or on their behalf. This Agreement will be effective on day of 20 (the date the Contract is approved by the Indian River County Board of County Commissioners, which is the Effective Date of the Agreement). OWNER: INDIAN RIVER COUNTY By: Joseph H. Earman, Chairman By: John A. Titkanich, Jr., County Administrator APPROVED AS TO FORM AND LEGAL SUFFICIENCY: t� William K. DeBraal, County Attorney Ryan L. Butler, Clerk of Court and Comptroller Attest: Deputy Clerk (SEAL) Designated Representative: Joe Tilton, CPRP, Recreation Manager Indian River County 5500 77th Street Vero Beach, Florida 32967 (772) 226-1881 jtilton@ircgov.com CONTRACTOR: By: (Contractor) (CORPORATE SEAL) Attest Address for giving notices: License No. (Where applicable) Agent for service of process: Designated Representative: Name: Title: Address: Phone: Facsimile: (If CONTRACTOR is a corporation or a partnership, attach evidence of authority to sign.) * * END OF SECTION * * 00520-8 268 W INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 19, 2023 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Director, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Award of Bid 2023047 for Kiwanis Hobart Park New Restroom and Sewer Connection BACKGROUND: On behalf of the Parks and Recreation Division, sealed bids were solicited for the construction of a restroom facility at the Kiwanis Hobart Park, located at 5555 lit' Street, Vero Beach, installation of a force main and lift station, decommissioning of existing septic system, and demolition of the existing restroom building. ANALYSIS• Advertising Date: Bid Opening Date: Solicitation Broadcast to: Bid Documents Requested by: Replies: August 17, 2023 September 19, 2023 1058 Subscribers 3o Firms 3 Firms Close Construction Services, LLC Okeechobee $636,185 Jobear Contracting, Inc. Palm Ba $771,622.25 Don Hinkle Construction Fort Pierce $94o,865.75/DQ Don Hinkle Construction's bid was disqualified for lack of unit prices on the bid form. Unit prices are the basis of award, and payment for completed work, per the bid and contract documents. Mathematical errors were corrected in the Close Construction bid. The design engineer for the project, Kimley-Horn and Associates, reviewed the responsive bids, and determined Close Construction, to be the lowest, responsive, responsible bidder, and has recommended award to them. The Division concurs with this recommendation. Close Construction has performed work on projects for the County, including Osprey Marsh and Egret Marsh Stormwater facilities. 269 FUNDING: Expenses, in the amount of $636,185, for this project will come from the Impact Fees/Parks/Hobart Park Restroom account, number 10321072-066390-18013. Account Name Account Number Amount Impact Fees/Parks/Hobart Park Restroom I 10321072-o663go-18ojL3 $636,185 RECOMMENDATION: Staff recommends the Board award Bid 2023047 to Close Construction Services, LLC, approve the agreement, and authorize the Chairman to sign the agreement after receipt and approval of the agreement and the required public construction bond by the County Attorney as to form and legal sufficiency, after the Contractor has reactivated its status with the Building Division, and after receipt and approval of the required insurance by the Risk Manager. So long as there are no changes in the dollar amount under the agreement, upon adequate completion of the work set forth in the agreement, staff is directed to make final payment and release any retainage to Close Construction Services, LLC, after review and approval by the Purchasing Manager and the County Attorney's Office. ATTACHMENT Agreement 270 SECTION 00520 Agreement THIS AGREEMENT is by and between INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida organized and existing under the Laws of the State of Florida, (hereinafter called OWNER) and Close Construction Services, LLC (hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1 - WORK 1.01 CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: The proposed project consists of installation of a lift station and force main, construction of a new restroom building, decommissioning of existing septic system, and demolition and removal of existing restroom, as described and shown on the bid documents, construction drawings and specifications. ARTICLE 2 - THE PROJECT 2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Project Name: Kiwanis Hobart Park Restroom and Sewer Connection Bid Number: 2023047 Project Address: 5555 77th Street, Vero Beach, FL 32967 ARTICLE 3 - ENGINEER 3.01 Kimley-Hom and Associates, Inc. is hereinafter called the ENGINEER and will act as OWNER's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. ARTICLE 4 - CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.02 Days to Achieve Substantial Completion, Final Completion and Final Payment A. The Work will be substantially completed on or before the 180th calendar day after the date when the Contract Times commence to run as provided in paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with paragraph 14.07 of the General Conditions on or before the 210th calendar day after the date when the Contract Times commence to run. 271 4.03 Liquidated Damages A. CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the times specified in paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. Liquidated damages will commence for this portion of work. The parties also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTOR shall pay OWNER 566.00 for each calendar day that expires after the time specified in paragraph 4.02 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER $566.00 for each calendar day that expires after the time specified in paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment. ARTICLE 5 - CONTRACT PRICE 5.01 OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents, an amount in current funds equal to the sum of the amounts determined pursuant to paragraph 5.01.A and summarized in paragraph 5.01.8, below: A. For all Work, at the prices stated in CONTRACTOR's Bid, attached hereto as an exhibit. B. THE CONTRACT SUM subject to additions and deductions provided in the Contract: Numerical Amount: $636,185 Written Amount: Six hundred thirty six thousand, one hundred eighty-five dollars ARTICLE 6 - PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions and the Contract Documents. 6.02 Progress Payments. A. The OWNER shall make progress payments to the CONTRACTOR on the basis of the approved partial payment request as recommended by ENGINEER in accordance with the provisions of the Local Government Prompt Payment Act, Florida Statutes section 218.70 et. seq. The OWNER shall retain five percent (5%) of the payment amounts due to the CONTRACTOR until substantial completion. B. For construction projects less than $10 million, at the time the Owner is in receipt of the Certificate of Substantial Completion, the Owner shall have 30 calendar days to provide a list to the Contractor of items to be completed and the estimated cost to complete each item on the list. Owner and Contractor agree that the Contractor's 272 itemized bid shall serve as the basis for determining the cost of each item on the list. For projects in excess of $10 million, owner shall have up to 45 calendar days following receipt of Certificate of Substantial Completion of the project to provide contractor with said list. C. Within 20 business days following the creation of the list, Owner shall pay Contractor the remaining contract balance including all retainage previously withheld by Owner except for an amount equal to 150% of the estimated cost to complete all of the items on the list. Upon completion of all items on the list, the Contractor may submit a payment request for the amount of the 150% retainage held by the Owner. If a good faith dispute exists as to whether one or more of the items have been finished, the owner may continue to withhold the 150% of the total cost to complete such items. The owner shall provide Contractor written reasons for disputing completion of the list. 6.03 Pay Requests. A. Each request for a progress payment shall be submitted on the application provided by OWNER and the application for payment shall contain the CONTRACTOR'S certification. All progress payments will be on the basis of progress of the work measured by the schedule of values established, or in the case of unit price work based on the number of units completed. 6.04 Paragraphs 6.02 and 6.03 do not apply to construction services work purchased by the County as OWNER which are paid for, in whole or in part, with federal funds and are subject to federal grantor laws and regulations or requirements that are contrary to any provision of the Local Government Prompt Payment Act. In such event, payment and retainage provisions shall be governed by the applicable grant requirements and guidelines. 6.05 Acceptance of Final Payment as Release. A. The acceptance by the CONTRACTOR of final payment shall be and shall operate as a release to the OWNER from all claims and all liability to the CONTRACTOR other than claims in stated amounts as may be specifically excepted by the CONTRACTOR for all things done or furnished in connection with the work under this Contract and for every act and neglect of the OWNER and others relating to or arising out of the work. Any payment, however, final or otherwise, shall not release the CONTRACTOR or its sureties from any obligations under the Contract Documents or the Public Construction Bond. ARTICLE 7 - INDEMNIFICATION 7.01 CONTRACTOR shall indemnify OWNER, ENGINEER, and others in accordance with paragraph 6.20 (Indemnification) of the General Conditions to the Construction Contract. ARTICLE 8 - CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following representations: 273 A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. CONTRACTOR has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which have been identified in the Supplementary Conditions as provided in paragraph 4.06 of the General Conditions. E. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by CONTRACTOR, including applying the specific means, methods, techniques, sequences, and procedures of construction, if any, expressly required by the Contract Documents to be employed by CONTRACTOR, and safety precautions and programs incident thereto F. CONTRACTOR does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents. H. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. I. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. K. Contractor is registered with and will use the Department of Homeland Security's E -Verify system (www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for the duration of this agreement, as required by Section 448.095, F.S. Contractor is also responsible for obtaining an affidavit from all subcontractors, as required in Section 448.095(5)(b), F.S., stating the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. 4 274 ARTICLE 9 - CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 00520-1 to 00520-9, inclusive); 2. Notice to Proceed (page 00550-1); 3. Public Construction Bond (pages 00610-1 to 00610-3, inclusive); 4. Sample Certificate of Liability Insurance (page 00620-1); 5. Contractor's Application for Payment (pages 00622-1 to 00622-6 inclusive); 6. Certificate of Substantial Completion (pages 00630-1 to 00630-2, inclusive); 7. Contractor's Final Certification of the Work (pages 00632-1 to 00632-2, inclusive); 8. Professional Surveyor & Mapper's Certification as to Elevations and Locations of the Work (page 00634-1 9. General Conditions (pages 00700-1 to 00700-38, inclusive); 10. Supplementary Conditions (pages 00800-1 to 00800-12, inclusive); 11. Architectural Plans for Hobart Park Restroom prepared by Edlund Dritenbas Binkley (Sheets ACC, A-1 through A-3, S-1 and MEP -1_ 12. Site Development Plans for Hobart Park prepared by Kimley-Hom and Associates, Inc. (Sheets C-000, S-1 through S-5, C-100, C-200, C-300, C-350, C-351, A-1, UCP 2422 and LS -1) 13. Addenda 1 to 2; 14. Appendices to this Agreement (enumerated as follows): Appendix A — Permits 15. CONTRACTOR'S BID (pages 00310-1 to 00310-6, inclusive); 16. Bid Bond (page 00430-1 17. Sworn Statement Under Section 105.08, Indian River County Code, on Disclosure of Relationships (pages 00452-1 to 00452-2, inclusive); 18. Sworn Statement Under the Florida Trench Safety Act (pages 00454-1 to 00454-2, inclusive); 19. Qualifications Questionnaire (page 00456-1 to 00456-2, inclusive); 20. List of Subcontractors (page 00458-1); E 275 21. Certification Regarding Prohibition Against Contracting with Scrutinized Companies (page 00460-1); 22. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a) Written Amendments; b) Work Change Directives; c) Change Order(s); ARTICLE 10 - MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings indicated in the General Conditions. 10.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Venue A. This Contract shall be governed by 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 Contract shall be in Indian River County, Florida, or, in the event of a federal jurisdiction, in the United States District Court for the Southern District of Florida. 10.06 Public Records Compliance 276 A. Indian River County is a public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall: (1) Keep and maintain public records required by the County to perform the service (2) Upon request from the County's Custodian of Public Records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Contractor or keep and maintain public records required by the County to perform the service. If the Contractor transfers all public records to the County upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the Custodian of Public Records, in a format that is compatible with the information technology systems of the County. B. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (772) 226-1424 publicrecords(-ircgov.com Indian River County Office of the County Attorney 180127 th Street Vero Beach, FL 32960 C. Failure of the Contractor to comply with these requirements shall be a material breach of this Agreement. IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and CONTRACTOR. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or on their behalf. rA 277 This Agreement will be effective on day of 20 (the date the Contract is approved by the Indian River County Board of County Commissioners, which is the Effective Date of the Agreement). OWNER: CONTRACTOR: INDIAN RIVER COUNTY 0 Joseph H. Earman, Chairman By: John A. Titkanich, Jr., County Administrator APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: By: (Contractor) (CORPORATE SEAL) Attest William K. DeBraal, County Attorney Address for giving notices: Ryan L. Butler, Clerk of Court and Comptroller Attest: Deputy Clerk (SEAL) Designated Representative: Joe Tilton, CPRP, Recreation Manager Indian River County 5500 77th Street Vero Beach, Florida 32967 (772) 226-1881 jtilton@ircgov.com License No. (Where applicable) Agent for service of process: Designated Representative: Name: Title: Address: Phone: Facsimile: (If CONTRACTOR is a corporation or a partnership, attach evidence of authority to sign.) * * END OF SECTION * * E3 278 INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 19, 2023 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Director, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Waiver of Requirement for Bids to Procure Road Base Materials BACKGROUND: The Public Works Department's Road & Bridge Division currently maintains 250 miles of unpaved roadways throughout the county. This maintenance requires the purchase, delivery, and placement of material such as coquina base or stabilizer to ensure that the roadways are passable. This material is picked up in Road and Bridge dump trucks from Blue Goose (mines in Fellsmere and on 82nd Avenue), Stewart Materials (Fort Pierce), and Wild Turkey (82nd Avenue) mines, as appropriate, based on the mine's location in relation to the roads being maintained, and availability of product at each mine. Staff is also working to enroll Stavola Aggregate in Fellsmere as another road base supplier. 10 LITrI«ireT-kil Due to the limited number of sources, and fluctuation in availability and price, a formal bid will likely be unsuccessful in garnering supplier participation. Utilizing non -local mines will only increase both the costs of hauling and staff time. Therefore, Staff is requesting the Board waive the requirement for bids for road base materials, so materials can be purchased as needed and available. Prices for stabilizer currently range between $7.75 to $8.50 per ton, and coquina base from $9 to $9.50 per ton. Purchases in the previous fiscal vear are reflected in the table below. Mine 22/23 Quantity (tons) Total Amount Spent FY 22/23 Blue Goose 26,013.55 $193,233.69 Stewart 261.20 $1,485.63 Wild Turkey 2,392.41 $21,669.40 Stavola Aggregate 0 $0 279 FUNDING/BUDGET AMENDMENT: Staff anticipates expenditures of up to $350,000 for road base materials to be necessary during the current fiscal year. Funds are budgeted in the following accounts: Account Name Account Number Account Budget for FY 23/24 Secondary Roads Fund/Secondary Roads/Roads 10921441-035390-16032 $140,000 and Bridges/Other Road Material/Supplies/Fellsmere Road Stabilization Secondary Roads Fund/Secondary Roads/Roads 10921441-035390-17019 $60,000 and Bridges/Other Road Material/Supplies/North County Road Stabilization Transportation Fund/ Roads and Bridges/Other 11121441-035390 $250,000 Road Material/Supplies RECOMMENDATION: Staff recommends the Board of County Commissioners waive the requirement for bids and authorize the Purchasing Division to issue purchase orders to the four local mines, as needed, up to the amount approved by the Budget Department. 280 INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 20, 2023 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Director, Office of Management and Budget Jennifer Hyde, Purchasing Manager FROM: Shelby Ball, Purchasing Specialist SUBJECT: Final Ranking of Firms and Authorization to Negotiate — RFQ 2023o6i for Continuing Geotechnical Engineering Consulting Services BACKGROUND: The current professional continuing consulting geotechnical engineering services agreements expire on December 3, 2023. In accordance with section 287.055, Florida Statute (Consultants Competitive Negotiation Act), a request for qualifications (RFQ) was issued on July 19, 2023, to solicit statements of qualifications (SOQs) from professional geotechnical engineering firms interested in providing services under a new continuing agreement. ANALYSIS• Nearly six hundred firms were notified of the RFQ, and 8 firms submitted SOQs prior to the August 22, 2023 deadline. A selection committee, comprised of Kirstin Leiendecker, Assistant Public Works Director, Mark Winslow, Project Manager, and Harrison Youngblood, Utilities Engineer, independently reviewed, scored, and ranked the received SOQs in accordance with FS 287.055, the RFQ, and the Purchasing Manual. The committee met to reveal the individual committee member ranking, and establish an initial ranking of firms. The committee subsequently met to discuss the number of firms that should be awarded, based on the scores and rankings, and developed a short list of firms to be considered for award. Chapter 287.055, Florida Statute requires the County to hold discussions with a minimum of three firms. The committee identified four firms they wished to obtain more information from, and those firms participated in discussions via Zoom on October 6, 2023. Scoring and ranking documents are available for review in the Purchasing Division. 281 Initial ranking of firms is shown below: 1 Andersen Andre Consulting Engineers* 2 Ardaman & Associates* 3 Terracon Consultants* 4 Tierra South Florida* 5 Professional Services Industries* 6 GFA International dba Universal Engineering Sciences* 7 Madrid Engineering Group dba Madrid CPWG 8 Hi hS ans Engineering *indicates firms invited to participate in discussions with the committee After the discussions were completed, the committee reviewed the short list ranking of firms. No changes to the rankings, or to the list of firms to be considered for award, were made. The initial ranking of firms was declared final. The committee recommended award to the top 6 ranked firms. Staff is prepared to begin negotiations with the identified firms, and bring the final agreements to the Board at a future meeting. FUNDING: Funding for work orders under the agreements will vary, based on project and department. RECOMMENDATION: Staff recommends the Board approve the final ranking of firms, and authorize negotiations with the recommended firms, in accordance with FS 287.055• 282 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Board of County Commissioners THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Director, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager DATE: October 20, 2023 SUBJECT: Waiver of Requirement for Bids for Tagmarshal BACKGROUND AND DISCUSSION: Indian River County owns and operates Sandridge Golf Club, a 36 -hole daily fee golf facility. Over the past 5 years, revenue and round counts at Sandridge Golf Club have steadily risen to record numbers with over 119,000 annual rounds in fiscal year 2021-22 and will finish with close to 125,000 rounds of golf for fiscal year 2022-23. In 2019, the Golf Club installed Tagmarshal in their golf carts to improve the pace and flow of play to optimize the capacity of rounds of golf played at the golf course. Tagmarshal offers operational oversight of every golf cart in the Golf Club fleet through GPS technology. Golf Cart GPS tracking systems deliver helpful and real-time location information, shown on a screen for golf course operators or managers to see. It has increased efficiency through automation for our rangers to help monitor play and improve our patron's experience while playing the golf courses. On January 17, 2023 the Board approved the advance purchase of a replacement golf cart fleet for Sandridge Golf Club and authorized the Purchasing Division to issue a Request for Proposals for 16o gasoline golf cart, utility cart, range cart and beverage cart. On March 28, 2023, the Board approved the purchase of a new golf cart fleet and Yamaha was awarded the bid. The delivery of the new golf cart fleet will be January 1, 2024. Under a newly proposed lease agreement, Tagmarshal will install 8" screens on all 16o golf carts adding a new level of service where customers will have an interactive map of each hole, the ability to order food on the tablet as well as the ability to receive real-time alerts or notifications. Tagmarshal also is the exclusive GPS company who has partnered with Golf Genius who currently provides the Golf Club's Tournament Management Software. Customers will be able to use the tablets to enter scores and look at live leaderboards while they play in the Golf Club's events, further enhancing their playing experience at Sandridge Golf Club. Once executed, the lease will be effective through March 30, 2028. FUNDING Tagmarshal services, in the amount of $36,109.32 annually, are budgeted and available in the Sandridge Golf Course/Admin/Clubhouse Operations/Computer Software Account #41823672-035120. z_ mak,IM; WA Sandridge Golf Course/Admin/Clubhouse 41823672-035120 Operations/Computer Software $36,109.32 283 RECOMMENDATION Staff recommends the Board waive the requirement for bids, approve the Terms and Conditions, authorize the Chairman to execute the Terms and Conditions document, and authorize the Purchasing Manager to execute any necessary lease documents, after review and approval by the County Attorney as to form and legal sufficiency. ATTACHMENTS: Tagmarshal Terms and Conditions 284 DocuSign Envelope ID: 4AFOCB68-37D8-4980-8870-BO84765D9EF5 TAGMARSHAL INTERNATIONAL LIMITED TERMS AND CONDITIONS 1 st Floor, 6 Lapps Quay, Cork, Ireland TERMS AND CONDITIONS This agreement is entered into between; TAGMARSHAL INTERNATIONAL LIMITED (Ireland), Incorporation Number 627199, addressed at 1st Floor, 6 Lapps Quay, Cork, Ireland ("Tagmarshal") And Indian River County's Sandridge Golf Club, addressed at 5300 73rd St, Vero Beach, FL 32967 he Client") i. DEFINITIONS 1.1. "Service" means the work to be performed by Tagmarshal pursuant to this Agreement and detailed in the scope of work in services listed in 2 hereof; as well as per the system feature breakdown on Tagmarshal's website, www.tagmarshai.comlproductoffen ng 1.2. 'GPS Unit" means global positioning system unit that communicates directly with both the cellular network and the global positioning satellite system; 1.3. "Hardware" means the hardware supplied by Tagmarshal to enable the Client to use and access the Software; further details as to the Hardware supplied by Tagmarshal are annexed hereto marked "A".. 1.4. "Software" means the Tagmarshal internet browser -based computer program that provides the Client with course monitoring and pace of play management; 1.5. "Licence Fee" means the monthly fee payable by the Client to Tagmarshal monthly in advance. 1.6. "Installation Date" means the date that Tagmarshal completes the supply of the Hardware to and the setup of the Software for the Client. At this time training is provided to the Client and the system is optimized for use at the Client's course. 1.7. "Live Date" means the date at which the contract period starts (as per Annexure A) and the Software is functional. 2. SERVICE AND SCOPE OF WORK 2.1. Tagmarshal is the owner and operator of a professional golf course management solution that allows for pre-emptive and efficient field management. The Client has agreed to purchase the Hardware and wants to make use of the Software under the terms and conditions fully described herein. 2.2. All terms, conditions, and costs described herein address the use of the Hardware and Software on facilities located at the Client's designated address. Use of the Hardware at any other facility is not permitted under this agreement.c 2.3. With effect from the signature date and for a period spedfied in Annexure A of this agreement ("the Contract Period") from the Live Date, Tagmarshal will make available its Software to the Client and provide the Services as set out herein. 2.4. Tagmarshal shall carry out the Services set out hereunder. Further details as to the duration and timing of the services Tagmarshal will provide are annexed hereto marked "A". 2.5. Tagmarshal shall be responsible for providing the customer access to the Software for the duration of the Contract period starting on the Live date as specified in Annexure "A" of this agreement. 2.6. Tagmarshal will provide service support (Software and Hardware) over the full duration of this agreement via the following routes: 2.6.1. A web -based FAQ/ knowledge page with an online support form/email address. 2.6.2. Online support via email will be available to the Client (support@tagmarshal.com) between 7.00 am and 3.00 pm EST seven days a week with a minimum response time of 3 (Three) hours. 2.6.3. Telephonic support will be available to the Client via the following telephone number, 725-333-7354 between 7.00 am and 4.00 pm eastern standard time from Monday to Friday. 2.6.4. Off-site repair and maintenance of the Hardware. Faulty Hardware, covered by the terms stipulated in section 8 of this agreement, couriered by the Client to Tagmarshal will be repaired or replaced at the discretion of Tagmarshal, at no cost to the Client for the duration of the Contract Period. 2.7. Tagmarshal will provide 5 hours of training at no cost to the Client on or around the installation Date and will provide the Client with instructions on how to use and, where necessary, install Hardware components. In the event that the Client requires further instructions and/or training in respect of the use of the Hardware and/or the Software, Tagmarshal agrees to attend to such further instruction and/or training where reasonably possible and the Client agrees that it shall be liable for and shall pay to Tagmarshal its charges in respect thereof at the then prescribed rate that Tagmarshal so charges, therefore. The Client agrees that it may not cede and/or assign any of its rights and/or obligations under this Agreement without the prior written consent of Tagmarshal. 2.8. Tagmarshal shall provide notification to the Client on Software upgrades and Service improvements. 2.9. Tagmarshal shall ensure that the Client has access to the latest version of the Software on a continuous basis. 2.10. The Installation Date, on which Tagmarshal will supply the Hardware and provide access to the Software for the Client as specified as per Annexure "A" of this agreement. 2.11. All GSM data costs incurred through the use of the GPS Units will be the responsibility of Tagmarshal for the duration of the Contract Period. 3. OBLIGATIONS OF THE CLIENT 3.1. The Client will ensure suitable hardware such as a PC and, or tablet computer as well as internet connectivity is available in orderfor their internal staff and stakeholders to access and work with the Tagmarshal Software. 3.2. The Client shall advise Tagmarshal without delay of any fad, matter or issue which would have an impact on the delivery of the Service, to enable Tagmarshal to properly and effectively carry out the Service. 4. LICENCE FEES AND HARDWARE PAYMENT 4.1. The Client shall be authorized to use the Tagmarshal Software at each facility specified in Annexure "A" of this agreement for the duration of the contract period specified therein. 4.2. The client will be charged a Software License Fee per facility specified in Annexure "A'. These fees will be payable by the Client to Tagmarshal monthly in advance via automated account debit (ACH payment) or cheque. 4.3. The Client agrees to rent, lease or purchase the Hardware specified in Annexure "A" of this agreement at the specified amount. These fees will be payable by the Client to Tagmarshal via automated account debit (ACH payment) or cheque. 4.4. The Client may be liable for any customs duty and/or tax considerations due on the Hardware's entry into the Client's state or country. 4.. All inquiries regarding the billing by Tagmarshal for its services should be sent to billing@tagmarshal.com. S. OWNERSHIP 5.1. All documents, reports, data, information, and all other computer records brought into existence by Tagmarshal as a consequence of the implementation of this Agreement, shall remain the property of the Client on condition that accounts are in good standing as per clauses 4.1, 4.2 and 4.3 above. 5.2. Tagmarshal reserves the right to use the Client's course data for marketing and research purposes from time to time. In regards to marketing, Tagmarshal shall not refer to the Client by name without the Client's permission which shall be obtained in writing in advance of its public use. 6. EXCLUSION OF LIABILITY 6.1. No warranty given by Tagmarshal to the Client regarding the accuracy of any information, opinion or report which is generated by Tagmarshal or by the Client through access to the Software will confer any liability to Tagmarshal, including any contingent liability of whatever nature. The Client hereby holds Tagmarshal harmless against any claim, of any nature as a result of the Client's access to the Software, the Hardware, and/or the Service provided by Tagmarshal. 7. CONFIDENTIALITY 7.1. Tagmarshal shall at all times hold as confidential any of the Client's information which is of a confidential nature and no disclosure thereof shall be made, save with the consent of the Client, the aforegoing not being deemed to restrict disclosures as would be required in the regular, normal and ordinary course of business to such third party who would normally be entitled to receive such confidential information. 7.2. The confidential information shall extend to and include all information relating to the dient's principals, financial policies, intellectual property, products, services, employees, consultants, contractors and without derogating from the generality of the aforegoing, any information which, if conveyed to a third party, could prejudice the Client and/or procure an unfair advantage insofar as the third party to whom such disclosure has been made, and which would not be available to it in the regular, normal and ordinary course of business. 7.3. The obligation to maintain such confidentiality shall survive the termination of this Agreement for any reason or cause whatsoever. 8. HARDWARE REPLACEMENT COST, STORAGE, AND GUARANTEE 8.1. Tagmarshal will guarantee the hardware supplied by Tagmarshal for the Contract period, normal wear and tear expected. 8.2. This guarantee does not extend to any conduct of the client or any person and/or thing that relates to acddenlal breakage, theft, misuse or abuse, malfunction due to improper Client installation (if applicable), damage caused by accident, fire, liquid contact, other external cause, golf cart damage or any other action by any party which may cause damage to the hardware. 8.3. Replacement or repair of damaged, lost or broken units outside of the guarantee can be arranged via Tagmarshal, subject to the client paying Tagmarshal the relevant fees for such a repair or replacement as well as associated shipping and handling. 8.4 Tagmarshal will reimburse the customer for license and/or service fees on a pro -rata basis for the period that each device is out of service due to Hardware failure subject to the guarantee conditions determined in item 8.2. 8.5 CLIENT HARDWARE SELF INSTALL 8.5.1 In the event of the Client electing to self -install the hardware, the Client agrees to waver all of its rights and daims in terms of all hardware and or system warrantees and or guarantees, express or implied whic"9)93e attributed to the installation and or wiring of the hardware. ( S 1 Initia 285 DocuSign Envelope ID: 4AFOCB68-37D8-4980-8B70-BO84765D9EF5 TAGMARSHAL INTERNATIONAL LIMITED TERMS AND CONDITIONS 1 st Floor, 6 Lapps Quay, Cork, Ireland 8.5.2 Should the client prove beyond all reasonable doubt that any hardware or system failure is not as a result of the hardware installation and or wiring, Tagmarshal shall repair or replace the faulty hardware in terms of clause 8.1 8.5.3 All self -install methodologies must be approved and signed off by Tagmarshal prior to the installation of hardware, failing which, all warrantees and or guarantees express or implied will be made null and void and the client acknowledges that it shall have no claim against Tagmarshal for any Hardware or System failures. 9. RENEWAL AND OTHER OPTIONS 9.1. Tagmarshal agrees that the Client will have the right to renew any of the contract periods specified in Annexure "A" for a further 3 (three) year period on the terms and conditions stipulated in this agreement if the Client notifies Tagmarshal three (3) months prior to the conclusion of the Contract period. All fees and the schedule of payment relating to the extended period shall be in accordance with Tagmarshal's market rates on that date or by special arrangement at renewal. 10. EVENTS OF DEFAULT 10.1. In the event of any amount due in terms hereof not being paid within 30 (Thirty) days following the due date or in the event of the Client breaching any of the terms of this Agreement (all of which terms are deemed material and going to the route of this Agreement), Tagmarshal shall have the right to suspend or terminate the Service including access to and use of the Software and cancel this Agreement with immediate effect. Tagmarshal is entitled to claim all amounts which are in arrears at the date of cancellation, and claim (without prejudice to any other relief which it may have against the Client in lieu of the relief provided to Tagmarshal in this clause, whether in common law or otherwise) as pre -estimated liquidated damages equal to three times the agreed-upon Active License fee (as defined in section 4.1 of this agreement). 10.2 Should Tagmarshal at its own discretion elect not to cancel the Agreement, the Client shall be liable to pay interest on any outstanding portion of the License Fee or any other amount payable at 9% per annum in addition to any penalties and/or reactivation fees incurred by Tagmarshal at their data provider 10.3. The Parties agree that, in the first instance, they will try and resolve any dispute amicably, and if they are unable to do so to refer the dispute to arbitration. 11. NOTICES AND DOMICILIUM 11.1. The Parties choose as their domicilium cltandi et executandi their respective addresses as set out on the first page of this Agreement for all purposes arising out of or in connection with this Agreement at which addresses all the processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the parties, or at such other address, not being a post office box or poste restante, of which the party concerned may notify the others in writing. 11.2. Any notice given in terms of this Agreement shall be in writing and shall - 11.2.1. If delivered by hand be deemed to have been duly received by the addressee on the date of delivery; 11.3. Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of the parties from another shall be adequate written notice or communication to such Party. 12. MISCELLANEOUS 12.1. Warranty of authority Each Party warrants to the other Party that it has power, authority, and legal right to sign and perform this Agreement and that this Agreement has been duly authorized by all necessary actions of its directors and constitutes valid and binding obligations on it in accordance with the terms of this Agreement. 12.2. Implementation and good faith 12.2.1. The Parties undertake to do all such things, perform all such acts, and take all steps to procure the doing of all such things and the performance of all such ads, as may be necessary or incidental to give or, conducive to the giving of effect to the terms, conditions, and import of this Agreement. The Parties shall at all times during the continuance of this Agreement observe the principles of good faith towards one another in the performance of their obligations in terms of this Agreement.: 12.2.2. This implies, without limiting the generality of the aforegoing, that they 12.2.2.1. will at all times during the term of this Agreement act reasonably, honestly, and in good faith; 12.2.2.2. will perform their obligations arising from this Agreement diligently and with reasonable care; and 12.2.2.3. will make full disclosure to each other of any matter that may affect the execution or implementation of this Agreement. 12.3. Non -assignment Neither Party shall assign any of its rights or delegate any of its obligations under this Agreement without the express prior written consent of the other Party. 12.4. Whole agreement This Agreement constitutes the whole agreement between the Parties as to the subject matter hereof and no agreements, representations or warranties between the parties other than those set out herein are binding on the parties. 12.5. Variation No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by the parties or their duly authorized representatives. 12.6. Severability 12.6.1. The agreements and undertakings of the Parties contained in this Agreement shall each be construed as an agreement and undertaking independent of any other provision of this Agreement. 12.6.2. The Parties hereby expressly agree that it is not the intention of any party to violate any public policy, statutory or common law and that if any sentence, paragraph, clause, or combination of the same is in violation of the Law of the State of Georgia, United States of America., such sentence, paragraph, clause or combination of the same alone shall be void in the jurisdiction where it is unlawful, and the remainder of such clause and this Agreement shall remain binding upon the Parties hereto. 12.7. Relaxation No latitude, extension of time or other indulgence which may be given or allowed by any party to the other parties in respect of the performance of any obligation hereunder or enforcement of any right arising from this Agreement and no single or partial exercise of any right by any party shall under any circumstances be construed to be an implied consent by such party or operate as a waiver or a novation of, or otherwise affect any of that party's rights in terms of or arising from this Agreement or estop such party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof. 12.8. Counterparts This Agreement (and each amendment, modification, and waiver in respect of 0) may be executed in any number of counterparts (including by way of facsimile transmission or electronic mail) and this has the same effect as if the signature on the counterparts were on a single copy of this Agreement. 12.9. Governing law; This agreement shall be governed by and construed in accordance with the Law of the State of Georgia, United States of America. 12.10. Costs 12.10.1. All costs (which shall include legal costs of the attorney and own client scale), incurred by an aggrieved party which enjoys success or substantial success in enforcing its rights (whether action has been instituted or not) arising out of the breach of this Agreement by the other party of any of the provisions of this Agreement shall be borne by that other party. Signed on behalf of the parties as duly authorized in accordance with section 12.1 of this agreement - DocuSigned by: Tagmarsha,,,,[}xl IU�E 7': ,L ttr Signature:.. ....Dos7Bl=CU47s.... ......... Date: ............... August 31, 2023........... Place:...... ......................................... The Client By: By: Joseph H. Earman, Chairman John A. Titkanich, Jr., County Administrator APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: William K. DeBraal, County Attorney Ryan L. Butler, Clerk of Court and Comptroller Attest: Deputy Clerk (SEAL) DS S�2 Initia 286 DocuSign Envelope ID: 4AFOCB68-37D8-4980-8B70-BO84765D9EF5 TAGMARSHAC 3 golf course optimization i AnamrsIM R... All leasing programs are subject to credit approval - Leasing programs are facillated by our pa lyst Finance Com (btrree/FaIM¢ - Sandridge Golf Club t Address:5300 73rd St, Vero IBehok FL :>!�I Contact: Bata Nagy- .Contract Period: October 1, 20=411le mh A Sale - + - Course Type: Public ...- Tagmarshal Contact Ashleigh Bryant CorteleetDate: +W1ff02i _ __. i _ } --.-„ 4 PRODUCT OPTION _Number of golf ceurses .: ;Active season months* : ._ .._. >teMe11M_ _ ... 1.. - Rounds per annum: 77- • Nw r Swig cPs sa «I inattlled Np $0.00' $000 'Frq�lla2wsaks pdorio the aadract alert deN rN includes aourae htewYl�; aldlaY/gB. and Gaal � atMlra t�v _.,_._ . ,._ �. �__ —_ • New B' 2wW GPS Bogert YleleFM Monthly Data Fee for tablet at $19 plm each - - 2S1la ` ll:'8500.1 _. .. ___.. -... .. _._.__ .. ... .,._. ___. _.._.l Monthly Tee Sheet integration fee- - P,eldemonedy inadvaltaa : :Natslnowia0a!rReballe _T _.-�f c pdrVW MB t�epSwiYar 16 2i�s _ - -j _ ! s�Fwe (Meehrow+nwlkatlikiti twy _, I MMMaestk w - I r "W" WrAm %a a NO&i�alltpr- p�etatl�reeat�lltrlt�el)rr�t f �' Y.-.._,...,_._.--.. .,--. uMeNreaetelete k iaBanid eta .109.32 t2tldpe�t _ ,waa2i :.: `Metawralseietaip115reNtat� .. .. .. ,036,109.3'2] I iwh��aelekeArs ,036.109.3}]. : k, =."!! _.__ - _ _w.. ._ _- __ fltatitaui:mouttrlltr;:It�6: - ; a ..•3111! - • Ongoing fees are payable monthly in advance (54 installments). The ongoing fee includes all GSM data tees and product support. :-We offer optional tablet packages to enhance starker & marshall performance -Samsung flinch tablet! a!1'10buBce'Yv, a 1G8 data plan, set-up 6 fnd product support - for $245 up front with a $19/m data plan ' - - All prices excludetatere andlorduties which ate the 41W* responsibility (International- outside of k1w -•Too sheet integration fees may apply depending ori Courses Provider, ask your rep for more info. . • Lease prices offered through Tagmarshal 3rd partyyertners 8 subject to credit approval ! I If I 1 t "t 'Nems: Signature LLisyAtyeetit > 1. This lease agreement can be amended at any time during the 54 months for Hardware additions and Upgrades y ! 2. The financing is through Catalyst Finance Company Bryon Edwards, Senior lease Specialist at Catalyst Finance Company can be contacted at - Ph: 778fi86-1304 should you require any assistance with the application form, or have any questions regarding the Financing facility. � Funds will be released to Ta marshal an _ � _--, g elotlllaoaatt<teFMleltoei0wettlri,iotaaO�aFewYinalallaaonalaloniWetptt���loutpowae, j 4 Installation Schedule: +"m delivery and training will be fadlitagdtty7 /MOMtilei�Mrrtl�Mdet i. ... •4A Hardware delivery: Witlun2weeW ofinslaillailliksk, 14.2 Full system go live: 5. Please indicate (if applicable): 5.1 Golf Cart Model .... ........_ ......... - - ;i. Tee Sheet Integration Requirement? (AddltIoMt0fWpet9gap",,,.,,_ 8.1 Please indicate if Tee Sheet Integration is requded -8.2PleaNaWieaMTMSheet amripngnestleused- :287 I DocuSign Envelope ID: 4AFOCB68-37D8-4980-8B70-BO84765D9EF5 Tagmarshal International Limited 1st Floor, 6 Lapps Quay, Cork County Cork , Ireland T12 SP62 Tel: +353 21 2120003 (Europe) TeL +1 7253 337354 (USA) Email: Contact@tagmarshal.com 7 September 2023 To Sandridge Golf Club 5300 73rd St, Vero Beach, FL 32967, United States For the attention: Mr Bela Nagy Confirmation of 24 Month lease termination clause. Dear Bela Thank you for signing with Tagmarshal and leasing your contract with Catalyst. As discussed, we have removed the option for the 24 -month termination from the contract as it will affect the lease application. This letter serves to provide you our assurance that despite that, we will honor the termination clause. In the event that after an initial 24 month period of service that Sandridge Golf Club wishes to terminate the Agreement, Tagmarshal undertakes to take over the remainder of the lease agreement with Catalyst. This is conditional on the following: 1. Sandridge Golf Club must inform Tagmarshal of their intention to exercise their right to Terminate the contract in writing 3 (three) months prior to the end of the initial 24 month period, providing reasons for the intended termination. Tagmarshal will then have 10 (ten) working days to assess the reasons provided and propose a resolution. 2. If Sandridge Golf Club is not satisfied with the proposed resolution then they must inform Tagmarshal in writing within a further 14 (fourteen days) of receipt of the resolution proposal. 3. Tagmarshal will then make arrangements with Catalyst to take over the remainder of the lease period. 4. The hardware must be returned in good working condition. Sandridge Golf Club will be invoiced for any damaged hardware that we will be unable to reuse. 5. Tagmarshal certifies that it and those related entities of Tagmarshal as defined by Florida law are not on the Scrutinized Companies that Boycott Israel List, created pursuant to s. 215.4725 of the Florida Statutes, and are not engaged in a boycott of Israel. Client may terminate this Contract if Tagmarshal, including all wholly owned subsidiaries, majority-owned subsidiaries, and parent companies that exist for the purpose of making profit, is found to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel as set forth in section 215.4725, Florida Statutes. We trust the above will be in order. 288 DocuSign Envelope ID: 4AFOCB68-37D8-4980-8870-B084765D9EF5 John Willmore, CRO Incorporation number - 627199 Directors : Stephen Knoop, Bodo Sieber, Craig Kleu, John Willmore Tagmarshal International Limited 1st Floor, 6 Lapps Quay, Cork County Cork , Ireland T12 SP62 Tel: +353 21 2120003 (Europe) Tel: +1 7253 337354 (USA) Email: Contact@tagmarshal.com 289 Ed INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 20, 2023 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: John A. Titkanich, Jr., County Administrator Kristin Daniels, Director, Office of Management and Budget Jennifer Hyde, Purchasing Manager FROM: Shelby Ball, Purchasing Specialist SUBJECT: Final Ranking of Firms and Authorization to Negotiate — RFQ 2023o62 for Continuing Architectural Consulting Services BACKGROUND: The current professional continuing architectural consulting services agreements expire on November 12, 2023. In accordance with section 287.055, Florida Statute (Consultants Competitive Negotiation Act), a request for qualifications (RFQ) was issued on July ii, 2023, to solicit statements of qualifications (SOQs) from professional architecture firms interested in providing services under a new continuing agreement. ANALYSIS• Nearly eight hundred firms were notified of the RFQ, and io firms submitted SOQs prior to the August ii, 2023 deadline. One firm, BEA Architects, was declared non-responsive for failure to submit the notarized statement regarding disclosure of relationships, required in Section 105.o8, Indian River County Code, and their SOQ was not considered. A selection committee, comprised of Kirstin Leiendecker, Assistant Public Works Director, David Rattray, Fire Chief, Rich Szpyrka, Former Public Works Director, Beth Powell, Parks, Recreation & Conservation Director, and Ron Jones, SWDD Assistant Managing Director, independently reviewed, scored, and ranked the received SOQs in accordance with FS 287.055, the RFQ, and the Purchasing Manual. The committee met to reveal the individual committee member ranking, and establish an initial ranking of firms. The committee subsequently met to discuss the number of firms that should be awarded, based on the scores and rankings, and developed a short list of firms to be considered for award. Chapter 287.055, Florida Statute requires the County to hold discussions with a minimum of three firms. The committee identified four firms they wished to obtain more information from, and those firms participated in discussions via Zoom on October 19-20, 2023. Scoring and ranking documents are available for review in the Purchasing Division. 290 Initial ranking of firms is shown below: 1 CPZ Architects* 2 S iezle Architecture Group* 3 CPH* 4 Edlund, Dritenbas, Binkley Architects & Associates* 5 Dewberry Architects 6 Ohlson Lavoie Corporation 7 Architecture Design Collaborative 8 Ritacco & Chan Architecture Group 9 West Architecture + Design * indicates firms invited to participate in discussions with the committee After the discussions were completed, the committee reviewed the short list ranking of firms. No changes to the rankings, or to the list of firms to be considered for award, were made. The initial ranking of firms was declared final. The committee recommended award to the top 4 ranked firms. Staff is prepared to begin negotiations with the identified firms, and bring the final agreements to the Board at a future meeting. FUNDING: Funding for work orders under the agreements will vary, based on project and department. RECOMMENDATION: Staff recommends the Board approve the final ranking of firms, and authorize negotiations with the recommended firms, in accordance with FS 287.055• 291 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Board of County Commissioners THROUGH: John A. Titkanich, Jr., County Administrator Sean A. Lieske, Acting Public Works Director Kirstin Leiendecker, P.E., Assistant Public Works Director FROM: Mark Winslow, P.E., Project Engineer SUBJECT: Award of Bid No. 2024006 and FDOT FM No. 440673-1-58-01 Local Agency Program (LAP) Supplemental Agreement No. 1 and Resolution Authorizing the Chairman's Signature for the Trans -Florida Railway Trail from Fellsmere to West of 1-95 DATE: October 9, 2023 DESCRIPTION AND CONDITIONS On May 16, 2023, the Board of County Commissioners approved Local Agency Program (LAP) Agreement FM No. 440673-1-58-01 with the Florida Department of Transportation (FDOT) for the construction of the Trans - Florida Railway Trail from Fellsmere to West of 1-95 to provide $865,885.00 reimbursement for eligible construction costs. The trail consists of a coquina base and an asphalt surface, approximately 1.4 miles long that will include some drainage improvements and trail signage. It will run within an abandoned railroad line from the City of Fellsmere to west of 1-95 at the terminus of the Pedestrian Overpass. The FDOT has requested that Indian River County execute and deliver to the FDOT the attached LAP Supplemental Agreement No. 1 to increase the original grant amount of $865,885.00 by $109,613.00 for construction costs to $975,498.00, as well as a Resolution authorizing the Board of County Commissioners to execute FDOT LAP Supplemental Agreement No. 1. The County's portion will decrease to $122,001.00. A bid opening for project was held on October 4, 2023. Five (5) responsive bids were received and announced during a public meeting. A detailed bid tabulation is on file and available for viewing in the Public Works Engineering Division. Bid totals are as follows: COMPANY BID Timothy Rose Contracting, Inc., Vero Beach, FL $1,097,499.00* Dickerson Infrastructure, Inc. dba Dickerson Florida, Inc., Fort Pierce, FL $1,172,962.50 Jobear Contracting, Inc., Palm Bay, FL $1,199,694.78 M & M Asphalt Maintenance Inc. dba All County Paving, Delray Beach, FI $1,256,000.00* Cathcart Construction Company — Florida, LLC, Winter Springs, FL $1,682,582.00* *Denotes mathematical error on bid form corrected 292 Award of Bid No. 2024006 and FDOT LAP SA No. 1 and Resolution Trans -Florida Railway Trail from Fellsmere to West of 1-95 For October 31, 2023 BCC Meeting Staff completed a detailed comparison of the bids received and the estimated costs for the project, and found the lowest bid submitted to be feasible. FDOT has concurred that Timothy Rose Contracting, Inc. is considered to be the lowest, responsive, responsible bidder for the project with a bid totaling $1,097,499.00, which is $264,480.60 above the Engineer's Cost Estimate of $833,018.40. Timothy Rose Contracting, Inc. has completed various projects for the County in a satisfactory manner. FUNDING Per the LAP grant agreement, the County must fund the project and then request reimbursement of the grant share from FDOTto a maximum amount of $865,885.00 of the total cost for the project. Funding for the project is programmed in the 2023 Capital Improvement Element. Account Description Account Number Amount Optional Sales Tax/Trans Florida Greenway PH II 31521441-066510-21035 $1,097,499.00 RECOMMENDATION Staff recommends approval of FDOT LAP Supplemental Agreement No. 1 (FM No. 440673-1-58-01) and adopting the Resolution and authorizing the Chairman to sign FDOT LAP Supplemental Agreement No. 1. Staff further recommends the project be awarded to Timothy Rose Contracting, Inc. in the amount of $1,097,499.00 and recommends the Board approve the sample agreement and authorize the Chairman to execute said agreement after review and approval of both the agreement and required Public Construction Bond by the County Attorney as to form and legal sufficiency, and the receipt and approval of required insurance by the Risk Manager. The Federal Highway Administration (FHWA) has issued an updated FHWA 1273, "Required Contract Provisions Federal -Aid Construction Contracts" and this update will be incorporated into the contract documents for the project. ATTACHMENTS FDOT LAP Supplemental Agreement No. 1— FM No. 440673-1-58-01 Authorizing Resolution Sample Agreement AGENDA ITEM FOR OCTOBER 31. 2023 CAGnnicuslxgistar5\L5\Temp\040f1497- 439-47d6-8057-8fe0efea5f3d. doe 293 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION LOCAL AGENCY PROGRAM 525-010-32 SUPPLEMENTAL AGREEMENT PROGRAM MANAGEM0=2 Page 1 of $ SUPPLEMENTAL NO. FEDERAL ID NO. (FAIN) 01 D422-074-B CONTRACT NO. FPN 446073-1-58-01 FEDERAL AWARD DATE 11/10/2022 RECIPIENT UNIQUE ENTITY ID SAM NO. FB3SLJJZ38K9 Recipient, Indian River County desires to supplement the original Agreement entered into and executed on 06/01/2023 as identified above. All provisions in the original Agreement and supplements, if any, remain in effect except as expressly modified by this supplement. The changes to the Agreement and supplements, if any, are described as follows: PROJECT DESCRIPTION Name Trans -Florida Railway Trail from Fellsmere to West of 1-95 Phase 1 &2 project Length 1.39 Termini Trail from Fellsmere to West of 1-95 Description of Work: Project scope consist of the construction of a multi-purpose path along an abandoned railroad right-of-way from Fellsmere to the west side of 1-95 through St Sebastian River Preserve State Park, known as the Trans Florida Central "Rails -to -Trails" Corridor project. This project is part of the North County Greenways Plan. Project length is 1.39 miles. Reason for Supplement and supporting engineering and/or cost analysis: This Supplemental Agreement reconciles the original LAP Agreement of $1,391,676.00 with the Department's bid concurrence and Local Agency construction contract bid award amount of $ 1,097,499.00 as follows: The additional federal funds being added via this SA#1 is $ 109,613.00 The original Local Funds of $525,791.00 is being reduced via this SA#1 by -$403,790.00 to a total of $ 122,001.00. The new amount via this SA# 1 is $ 1,097,499.00 Please refer to Exhibit "B" attached hereto and made apart hereof which replaces Exhibit "B" that is to the Original Agreement. 294 Ln LU LY D Q C7 Z J J m 06 w Z Z w a U w w LY w CO U Z Z U N w) O O of Q a J J Q Q U U z W Z LL WLL O SMO O O aQw J O ZQ0 O O W Q J Q � N J Q J m va_ O oa. 00 O 00 cf.)m O = X o W N (•, W U (DLL (75 U N m Q (° o O orn ��> Ln LU LY D Q C7 Z J J m 06 w Z Z w a U w w 0 3 uj o Fm p� 0 oa) J LL -0 Ln N 7 N co m m Nm z CD O c F o L) w m m } L p o W O Lij L) � U � O m Q -0 u E c Z o .0 0 '= 0 Q) � UL o LL_ H 0) U N m (n O "O U h } .LU• O J T Q O Q y o FwO (nrs 0 a) N U — E 295 O O 000 O O O O O O O O O O O O O O O J Q O O O 00 O 00 O O O 00 orn vw va va 6-1 to 0 - LL Z Cl) (D Cr) Q LL F- O F 0 O O O O O O z z 0 0 0 0 0 0 L=L. es sn to u4 e), LU Q F- U) M a 0 0 0 0 0 0 0 0 O O O O C V u3 61)o o O N N N v Z Q Z) ss va LL O Z 000 0 0 0 0 0 D o 0 Z O O 0) 0 00 LL O O O 0) Q 0 llT Z O7 v> y3 M 00 . r r- 613 yq V r ~LLm((o� -N C 0 �z U 6969 LLI LU� v3 O U a O 0 O 0 O C 0 0 O o O O O o 0 CO 0 0 r_i 0 0 0 0 Z O n te a fR 64 EPi di .� ZLL O O �� @ m ��L) LU z� a O O 0 0 0 O O O O O O 0 0 0 O O O O ao 0 0 0LO� ~ co 0 O to Z M60) r- (O lc �7 fA V3 co r- Lo b9 64 LL (D C) N O) CA ^ F_ Cl) V Lr) M M v U) U 616969 O w iti 64 0 LU LY as fA U U U U O W C W U N m G .5 W U U c O 0 L1 Ow CO O LU w L C .2 ~N _ L- Y o o a c LL 0 d a a a a a a A m m ;o c a a a c a a~ E E E E E E o E E o o E E E E E m O p LL m m m ZZZ m m m F- ZZZ O O L- c m m m mZZZ m m QZZ H U O v EEE EEE Q Q� rn E E E c E E Q W N 2 m N m m 2 m C N (0 f6 ,� (0 N N LL Qm o 0 0 aaa 0 0 o aaa m m r ��om d o 0 o r o o = oa caaa col a`a` rrr r� ill-N c c rn�rr UJ N N y OrCnmC N 0)NV) V!N�. -- w G- O F- F v G -S-0. C F C C O �.... `. O V M V co O V V O X 0 0 0 C Am- y N N N n7�-. N N L c 0 L LLLL XLLLLLL ULL- LLLL ULL LL LL LLLL LL 0 3 uj o Fm p� 0 oa) J LL -0 Ln N 7 N co m m Nm z CD O c F o L) w m m } L p o W O Lij L) � U � O m Q -0 u E c Z o .0 0 '= 0 Q) � UL o LL_ H 0) U N m (n O "O U h } .LU• O J T Q O Q y o FwO (nrs 0 a) N U — E 295 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION LOCAL AGENCY PROGRAM SUPPLEMENTAL AGREEMENT IN WITNESS WHEREOF, the parties have executed this Agreement on the date last ascribed herein. RECIPIENT Indian River County By: Name: Joseph H. Earman Title: Chairman 525-010-32 PROGRAM MANAGEMENT 08/19 € Page 3 of 31 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: Name: John P. Krane, P.E. Title: Director of Transportation Development Date: Legal Review: 296 RESOLUTION NO. 2023 - RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA AUTHORIZING THE CHAIRMAN'S EXECUTION OF LOCAL AGENCY PROGRAM (LAP) SUPPLEMENTAL AGREEMENT NO. 1 WITH THE FLORIDA DEPARTMENT OF TRANSPORTATION FOR TRANS -FLORIDA RAILWAY TRAIL FROM FELLSMERE TO WEST OF 1-95 PHASE 1 & 2 WHEREAS, the construction of a Trans -Florida Railway Trail from Fellsmere to West of 1-95 is an Indian River County priority project; and WHEREAS, the Florida Department of Transportation (FDOT) is prepared to provide funds to pay a portion of the cost for the construction of the 12 -foot Trail consisting of a coquina base and an asphalt surface, approximately 1.4 miles long under the Local Agency Program (LAP); and WHEREAS, the State of Florida, Department of Transportation, has requested Indian River County execute and deliver to the State of Florida, Department of Transportation, Local Agency Program (LAP) Supplemental Agreement No. 1 increasing funding the amount of the grant from $865,885.00 to $975,498.00. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that the Chairman of the Board is hereby authorized to make, execute, and deliver to the State of Florida, Department of Transportation, Local Agency Program (LAP) Supplemental Agreement No. 1 for the aforementioned project. The foregoing resolution was offered by Commissioner who moved its adoption. The motion was seconded by Commissioner and, upon being put to a vote, the vote was as follows: Chairman Joseph H. Earman Vice -Chairman Susan Adams Commissioner Laura Moss Commissioner Joseph E. Flescher Commissioner Deryl Loar The Chairman thereupon declared the resolution passed and adopted this day of .2023. BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA By Attest: Ryan L. Butler, Clerk of Court and Comptroller By: Deputy Clerk Approved as to Form and Legal Sufficiency William K. DeBraal, County Attorney Joseph H. Earman, Chairman C:\Granicus\Legistar5\L5\Temp\c42ec18c-ee36-463e-be68-9f22fd2b974d.doc 297 SECTION 00520 Agreement (Public Works) TABLE OF CONTENTS Title ARTICLE1- WORK................................................................................................... ARTICLE2 - THE PROJECT....................................................................................... ARTICLE 3 - ENGINEER............................................................................................ ARTICLE 4 - CONTRACT TIMES................................................................................ ARTICLE 5 - CONTRACT PRICE................................................................................. ARTICLE 6 - PAYMENT PROCEDURES..................................................................... ARTICLE 7 - INDEMNIFICATION.............................................................................. ARTICLE 8 - CONTRACTOR'S REPRESENTATIONS................................................... ARTICLE 9 - CONTRACT DOCUMENTS.................................................................... ARTICLE 10 - MISCELLANEOUS............................................................................... [The Remainder of THIS Page WAS LEFT BLANK INTENTIONALLY] Page 2 2 2 2 3 3 5 5 6 8 Agreement (Public Works) REV 04-07 - 00520 - 1 C:\Granicus\Legistar5\L5\Temp\758b42f7-c110-47a3-b179-958ecc09291c.docc 298 THIS AGREEMENT is by and between INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida organized and existing under the Laws of the State of Florida, (hereinafter called OWNER) and (hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1 -WORK 1.01 CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: FM# 446073-1-58-1 includes the construction of a 12 -foot Trail consisting of a coquina base and an asphalt surface. The project further includes some drainage improvements, trail signage and sod. ARTICLE 2 - THE PROJECT 2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Project Name: TRANS -FLORIDA RAILWAY TRAIL FROM FELLSMERE TO WEST OF 1-95 County Project Number: IRC -2115 FM Number: 446073-1-58-01 Bid Number: 2024006 Project Address: 11090 Co Rd 512, Fellsmere, FL 32948 ARTICLE 3 - ENGINEER 3.01 The Indian River County Public Works Department is hereinafter called the ENGINEER and will act as OWNER's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. ARTICLE 4 - CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.02 Days to Achieve Substantial Completion, Final Completion and Final Payment A. The Work will be substantially completed on or before the 210th calendar day after the date when the Contract Times commence to run as provided in paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with paragraph 14.07 Agreement (Public Works) REV 04-07 - 00520 - 2 C:\Gra nicu s\Legistar5\L5\Temp\758b42f7-c110-47a3-b179-958ecc09291c.docx 299 of the General Conditions on or before the 240th calendar day after the date when the Contract Times commence to run. ************************************************************************************************************ 4.03 Liquidated Damages A. CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the times specified in paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. Liquidated damages will commence for this portion of work. The parties also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTOR shall pay OWNER $1,694.00 for each calendar day that expires after the time specified in paragraph 4.02 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER $1,694.00 for each calendar day that expires after the time specified in paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment. ARTICLE 5 - CONTRACT PRICE 5.01 OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents, an amount in current funds equal to the sum of the amounts determined pursuant to paragraph 5.01.A and summarized in paragraph 5.01.13, below: A. For all Work, at the prices stated in CONTRACTOR's Bid, attached hereto as an exhibit. B. THE CONTRACT SUM subject to additions and deductions provided in the Contract: Numerical Amount: $ Written Amount: ARTICLE 6 - PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions and the Contract Documents. 6.02 Progress Payments. A. The OWNER shall make progress payments to the CONTRACTOR on the basis of the approved partial payment request as recommended by ENGINEER in accordance with the provisions of the Local Government Prompt Payment Act, Agreement (Public Works) REV 04-07 - 00520 - 3 C:\G ran icus\Legistar5\L5\Temp\758b42f7-c110-47x3-b179-95Beccc09291c. docx Florida Statutes section 218.70 et. seq. The OWNER shall retain five percent (5%) of the payment amounts due to the CONTRACTOR until substantial completion of all work to be performed by CONTRACTOR under the Contract Documents. B. For construction projects less than $10 million, at the time the Owner is in receipt of the Certificate of Substantial Completion, the Owner shall have 30 calendar days to provide a list to the Contractor of items to be completed and the estimated cost to complete each item on the list. Owner and Contractor agree that the Contractor's itemized bid shall serve as the basis for determining the cost of each item on the list. For projects in excess of $10 million, owner shall have up to 45 calendar days following receipt of Certificate of Substantial Completion of the project to provide contractor with said list. C. Payment of Retainage - Within 20 business days following the creation of the list, Owner shall pay Contractor the remaining contract balance including all retainage previously withheld by Owner except for an amount equal to 150% of the estimated cost to complete all of the items on the list. Upon completion of all items on the list, the Contractor may submit a payment request for the amount of the 150% retainage held by the Owner. If a good faith dispute exists as to whether one or more of the items have been finished, the owner may continue to withhold the 150% of the total cost to complete such items. The owner shall provide Contractor written reasons for disputing completion of the list. 6.03 Pay Requests. A. Each request for a progress payment shall be submitted on the application provided by OWNER and the application for payment shall contain the CONTRACTOR'S certification. All progress payments will be on the basis of progress of the work measured by the schedule of values established, or in the case of unit price work based on the number of units completed. 6.04 Paragraphs 6.02 and 6.03 do not apply to construction services work purchased by the County as OWNER which are paid for, in whole or in part, with federal funds and are subject to federal grantor laws and regulations or requirements that are contrary to any provision of the Local Government Prompt Payment Act. In such event, payment and retainage provisions shall be governed by the applicable grant requirements and guidelines. 6.05 Acceptance of Final Payment as Release. A. The acceptance by the CONTRACTOR of final payment shall be and shall operate as a release to the OWNER from all claims and all liability to the CONTRACTOR other than claims in stated amounts as may be specifically excepted by the CONTRACTOR for all things done or furnished in connection with the work under this Contract and for every act and neglect of the OWNER and others relating to or arising out of the work. Any payment, however, final or otherwise, shall not release the CONTRACTOR or its sureties from any obligations under the Contract Documents or the Public Construction Bond. Agreement (Public Works) REV 04-07 - 00520 - 4 C:\Gran icus\Legistar5\L5\Tem p\758b42f7-c 110-47a3-b179-958ecc09291c.docx 301 ARTICLE 7 - INDEMNIFICATION 7.01 CONTRACTOR shall indemnify OWNER, ENGINEER, and others in accordance with paragraph 6.20 (Indemnification) of the General Conditions to the Construction Contract. ARTICLE 8 - CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following representations: A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. CONTRACTOR has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which have been identified in the Supplementary Conditions as provided in paragraph 4.06 of the General Conditions. E. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by CONTRACTOR, including applying the specific means, methods, techniques, sequences, and procedures of construction, if any, expressly required by the Contract Documents to be employed by CONTRACTOR, and safety precautions and programs incident thereto F. CONTRACTOR does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents. H. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. I. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. Agreement (Public Works) REV 04-07 - 00520 - 5 C:\Granicus\Legistar5\l5\Tem p\758b420-c110-47a3-b179-958ecc09291 c.doa 302 J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. K. Contractor is registered with and will use the Department of Homeland Security's E -Verify system (www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for the duration of this agreement, as required by Section 448.095, F.S. Contractor is also responsible for obtaining proof of E -Verify registration for all subcontractors. L. Neither the Recipient nor any of its CONTRACTORS or their subcontractors shall enter into any contract, subcontract or arrangement in connection with the Project or any property included or planned to be included in the Project in which any member, officer or employee of the Recipient or the locality during tenure or for 2 years thereafter has any interest, direct or indirect. If any such present or former member, officer or employee involuntarily acquires or had acquired prior to the beginning of tenure any such interest, and if such interest is immediately disclosed to the Recipient, the Recipient, with prior approval of the Department, may waive the prohibition contained in this paragraph provided that any such present member, officer or employee shall not participate in any action by the Recipient or the locality relating to such contract, subcontract or arrangement. The Recipient shall insert in all contracts entered into in connection with the Project or any property included or planned to be included in any Project, and shall require its CONTRACTORS to insert in each of their subcontracts, the following provision: "No member, officer or employee of the Recipient or of the locality during his tenure or for 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof." The provisions of this paragraph shall not be applicable to any agreement between the Recipient and its fiscal depositories or to any agreement for utility services the rates for which are fixed or controlled by a governmental agency. ARTICLE 9 - CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 00520-1 to 00520-11, inclusive); 2. Notice to Proceed (page 00550-1); 3. Public Construction Bond (pages 00610-1 to 00610-3, inclusive); 4. Sample Certificate of Liability Insurance (page 00620-1); 5. Contractor's Application for Payment (pages 00622-1 to 00622-6 inclusive); 6. Certificate of Substantial Completion (pages 00630-1 to 00630-2, inclusive); 7. Contractor's Final Certification of the Work (pages 00632-1 to 00632-2, inclusive); 8. Professional Surveyor & Mapper's Certification as to Elevations and Locations of the Work (page 00634-1 9. General Conditions (pages 00700-1 to 00700-37, inclusive); Agreement (Public Works) REV 04-07 - 00520 - 6 C:\G ran icus\LegiMr5\LS\Temp\758b42f7-c110-47x3-b179-958ecc09291cdocz 303 10. Supplementary Conditions (pages 00800-1 to 00800-12, inclusive); 11. Specifications as listed in Division 1 (General Requirements) and Division 2 (Technical Provisions); 12. Drawings consisting of a cover sheet (C1), and sheets numbered C1 through C30, inclusive, with each sheet bearing the following general title: Historic Trans Florida Rail Trail Extension; 13. Addenda (if applicable ); 14. Appendices to this Agreement (enumerated as follows): Appendix A — Permits Appendix B — Indian River County Fertilizer Ordinances Appendix C — Indian River County Traffic Engineering Special Conditions for Right of Way Construction Appendix D — Required Contract Provisions Federal -Aid Construction Contracts Appendix E — General Wage Decision Number: fl20230170, 1/6/2023 Appendix F — Vendor Eligibility Check Prior To Contract Award 15. CONTRACTOR'S BID (pages 00310-1 to 00310-6, inclusive); 16. Bid Bond (page 00430-1); 17. Sworn Statement Under Section 105.08, Indian River County Code, on Disclosure of Relationships (pages 00452-1 to 00452-2, inclusive); 18. Sworn Statement Under the Florida Trench Safety Act (pages 00454-1 to 00454-2, inclusive); 19. Qualifications Questionnaire (pages 00456-1 to 00456-3, inclusive); 20. List of Subcontractors (page 00458-1); 21. Certification Regarding Prohibition Against Contracting with Scrutinized Companies (page 00460-1); 22. DBE Package (pages 00470-1 to 00470-2, inclusive); 23. Non -Collusion Affidavit (pages 00472-1 to 00472-4, inclusive); 24. Certification for Disclosure of Lobbying Activities on Federal Aid Projects (pages 00474-1 to 00474-3, inclusive); 25. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — Lower Tier Covered Transactions for Federal Aid Contracts (pages 00476-1 to 00476-2, inclusive); 26. Certification of Non -Segregation & Non -Discrimination (pages 00490-1 to 00490-2, inclusive); 27. Buy America Certification of Compliance (page 00492-1); Agreement (Public Works) REV 04-07 - 00520 - 7 C\Gran icus\Legistar5\LS\Temp\758b42f7-c110-47a3-b 179-95Becc09291c.d- 304 28. Drug Free Workplace Certification (page 00494-1); 29. LAP Certification of Capacity/Status of Contracts on Hand (pages 00496-1 to 00496-2, inclusive); 30. Certification to Sublet Work (pages 00500-1 to 00500-2, inclusive); 31. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a) Written Amendments; b) Work Change Directives; c) Change Order(s); ARTICLE 10 - MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings indicated in the General Conditions. 10.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Venue A. This Contract shall be governed by 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 Contract shall Agreement (Public Works) REV 04-07 - 00520 - 8 C\Gran icus\Legistar5\L5\Temp\758b42t7-c110-47a3-b179-958ecc09291c.docx 305 be in Indian River County, Florida, or, in the event of a federal jurisdiction, in the United States District Court for the Southern District of Florida. 10.06 Public Records Compliance A. Indian River County is a public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall: (1) Keep and maintain public records required by the County to perform the service. (2) Upon request from the County's Custodian of Public Records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Contractor or keep and maintain public records required by the County to perform the service. If the Contractor transfers all public records to the County upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the Custodian of Public Records, in a format that is compatible with the information technology systems of the County. B. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (772) 226-1424 publ icrecordsAircgov.com Indian River County Office of the County Attorney 180127 th Street Vero Beach, FL 32960 C. Failure of the Contractor to comply with these requirements shall be a material breach of this Agreement. 10.07 Indemnification and Insurance A. Recipient agrees to include the following indemnification in all contracts with CONTRACTORS, subcontractors, consultants, or subconsultants (each referred to as Agreement (Public Works) REV 04-07 - 00520 - 9 C:\Gran icus\Legistar5\LS\Temp\758b42f7-c110-47a3-b179-958ecc09291c.doa 306 "Entity" for the purposes of the below indemnification) who perform work in connection with this Agreement: "To the extent provided by law, [ENTITY] shall indemnify, defend, and hold harmless the [RECIPIENT] and the State of Florida, Department of Transportation, including the Department's officers, agents, and employees, against any actions, claims, or damages arising out of, relating to, or resulting negligent or wrongful act(s) of [ENTITY], or any of its officers, agents, or employees, acting within the scope of their office or employment, in connection with the rights granted to or exercised by [ENTITY] hereunder, to the extent and within the limitations of Section 768.28, Florida Statutes. The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the limits set forth in Florida Statutes, Section 768.28. Nor shall the same be construed to constitute agreement by [ENTITY] to indemnify [RECIPIENT] for the negligent acts or omissions of [RECIPIENT], its officers, agents, or employees, or third parties. Nor shall the same be construed to constitute agreement by [ENTITY] to indemnify the Department for the negligent acts or omissions of the Department, its officers, agents, or employees, or third parties. This indemnification shall survive the termination of this "Agreement." 10.08 Miscellaneous Provisions A. The Parties agree to comply with s.20.055(5), Florida Statutes, and to incorporate in all subcontracts the obligation to comply with s.20.055(5), Florida Statutes. [The remainder of this page was left blank intentionally] Agreement (Public Works) REV 04-07 - 00520 - 10 C\Gran icus\Legistar5\L5\Temp\758b42f7-c130-47a3-b179-958ecc09291c.doa 307 IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and CONTRACTOR. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or on their behalf. This Agreement will be effective on day of 20 (the date the Contract is approved by the Indian River County Board of County Commissioners, which is the Effective Date of the Agreement). OWNER: INDIAN RIVER COUNTY By: Joseph Earman, Chairman By: John A. Titkanich, Jr., County Administrator APPROVED AS TO FORM AND LEGAL SUFFICIENCY: am William K. DeBraal, County Attorney Ryan L. Butler, Clerk of Court and Comptroller Attest: Deputy Clerk (SEAL) Designated Representative: Name: Richard B. Szpyrka, P.E. Title: Public Works Director 1801 27th Street Vero Beach, Florida 32960 (772) 226-1379 Facsimile: (772) 226-1371 CONTRACTOR: By: (Contractor) (CORPORATE SEAL) Attest Address for giving notices: License No. (Where applicable) Agent for service of process: Designated Representative: Name: Title: Address: I Phone: Facsimile: (If CONTRACTOR is a corporation or a partnership, attach evidence of authority to sign.) * * END OF SECTION * * Agreement (Public Works) REV 04-07 - 00520 - 11 C:\Gran icus\LegistarS\L5\Temp\758b42f7-c110-47x3-b179-958ecc09291c.dou ON INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Board of County Commissioners THROUGH: John A. Titkanich, Jr., County Administrator PREPARED BY: Andrew Sobczak, Planning & Development Services Director DATE: September 29, 2023 SUBJECT: Consideration of an Ordinance Amending the Future Land Use Map of the Comprehensive Plan by Changing the Future Land Use Map for a +1.65 Acre Property Located on the East Side of US Highway 1 Between Jackson Street and 132nd Street. (LUDA 2003040050-95390) [Legislative] It is requested that the data herein presented be given formal consideration by the Board of County Commissioners at its regular meeting of October 31, 2023. DESCRIPTION AND CONDITIONS The subject property, as depicted in Attachment 1, consists of two (2) contiguous parcels totaling f 1.65 acres. The north parcel is owned by New Car Wash, LLC. and is currently undeveloped. The south parcel is owned by Fountain Towers, LLC. and is developed as a two -unit office complex. The parcels together are located on the east side of U.S. Highway 1 between Jackson Street and 132nd Street, in the Roseland area. The purpose of the request is to correct and amend the Future Land Use designation to ensure consistency between the County's adopted Future Land Use Map and the Zoning Map pursuant to Florida State Statues Chapter 163.3187(1), and Policy 14.3 of the County's Comprehensive Plan and to allow the subject property to develop with commercial uses. The proposed amendment will correct the existing inconsistency by amending the future land use designation from Medium Density 1 (M-1) to Commercial/Industrial (C/I) (see Attachment 1), thus permitting the commercial uses that are allowable in the CL zoning district. Comprehensive Plan Amendment Review Procedures Although the number of standard plan amendments that the County may consider each year is not limited, the frequency with which the County can amend its comprehensive plan is regulated. According to the County's Comprehensive Plan, standard plan amendment application submittals are currently limited to four times per calendar year. For that reason, the county accepts standard plan amendment applications only during the months of January, April, July, and October. In this case, the subject application was submitted during the July 2023 window. No other plan amendment applications were received in that window. 309 The procedures for reviewing a comprehensive plan amendment involve several steps. First, the Planning and Zoning Commission, as the Local Planning Agency, conducts a public hearing to review the request. At that hearing, the Commission makes a recommendation to the Board of County Commissioners to approve, approve with modification, or deny the requested amendment. Following the Planning and Zoning Commission action, the Board of County Commissioners conducts one public hearing. If the Board approves the request, the approved amendment becomes effective 31 days after the hearing. Future Land Use Pattern As shown in Attachment 2 the property to the north and south are within the boundaries of the City of Sebastian. Within the City of Sebastian, the property to the north is designated as "Riverfront Mixed Use" and the property to the south is designated as "Institutional" and is developed as an existing cemetery. To the east of the property is the M-1 designation on the County's future land use map and is developed as an existing mobile home subdivision. The majority of commercial property in this area, with frontage along Highway U.S. 1, has a commercial or mixed-use future land use designation. The existing future land use patterns in this area contain commercial, mixed use and institutional designations. The existing M-1 future land use designation is not consistent with the rest of the commercialized U.S. Highway 1 corridor which is primarily designated for commercial or mixed-use development. Environment A portion of the subject property has previously been cleared and developed as commercial. The north parcel is vacant with overgrown vegetation. County records show no wetlands and no environmentally sensitive habitats have been identified on the property. According to Flood Insurance Rating Maps, the subject property is within Flood Zone X. According to the Applicant, New Car Wash LLC.: "The proposed use will not negatively impact the environment. Advances in technology have revitalized the operation of stand-alone self-service car wash facilities. The automation of the car wash process has allowed the entire washing process to occur within a small, enclosed building envelope with detailing occurring on an enclosed automated conveyor belt. Cars will enter through the south side of the car wash tunnel and if an interior wash is also included in their selected service they will then enter through the north side of the enclosed conveyor belt for employees to complete interior cleaning, detailing and waxing. The enclosure of the car wash process reduces noise and other potential effects on neighboring property. Additionally, the introduction of the automated, self-service pay station has streamlined the payment and service process to efficiently move customers through the car wash cycle. All of these innovations have spurred an opportunity for development of these modem, environmentally friendly facilities that provide a desirable and sustainable service to members of the community. 2 310 Lastly, the proposed car wash will utilize a water reclamation system to reduce water consumption and minimize impacts on the natural environment. The water reclamation system will remove contaminants such as grease, oil, and rust and prevent release into the storm drain system. This water reclamation system will allow the recapture and reuse of water to conserve freshwater resources. The Project will have a positive impact on the natural environment by providing a more environmentally friendly alternative to washing a vehicle at home." Any further development on either parcel of the subject property will be required to comply with all state, local and federal regulations in place at the time of development, regardless of the property's land use designation. Utilities and Services The site is within the Urban Service Area of the County. As infill development, wastewater service is available to the property with the nearest connection points being along the U.S. 1 frontage. Potable water service is also available, with the nearest connection points being along the U.S. 1 corridor. According to the Applicant, New Car Wash LLC.: "This amendment will not negatively impact the public facilities and services. As an infill development, the Project will connect to the existing utility connections already in place and will not negatively impact the County's level of service for public utilities." Transportation System The subject property has frontage on U.S. Highway 1. In this area, U.S. Highway 1 is a four -lane divided road with approximately 120 feet of existing public road right-of-way, and is classified as a Principal Arterial on the Future Roadway Thoroughfare Plan Map. According to the County's comprehensive plan, this segment of U.S. Highway 1 needs a total of between 120 feet and 160 feet of right-of-way for future roadway needs. Jackson Street is a local two-lane street with approximately 50 feet of existing public road right-of-way. No improvements to these roads are currently programmed. Future Land Use Differences In terms of uses, the major differences between the C/I and M-1 land use designations are the location and the ability to develop the property with commercial uses. The commercial land use category includes land used for retail and wholesale trade, offices, hotels, motels, restaurants, service outlets, automobile service stations and repair facilities. Commercial uses are generally located in proximity to concentrations of population and along major thoroughfares. The largest area of commercial land use is within the SR 60 corridor. As stated in the Future Land Use Element, within the unincorporated county's 34 commercial/industrial nodes, there are approximately 5,235 acres of land. Currently, 43% of the total C/I node acreage (or 2,394 acres) is developed with commercial and/or industrial uses. The remaining 57% of C/I node acreage is either vacant or developed with noncommercial or 3 311 nonindustrial uses such as agricultural, residential, public, and other uses. Multiple -family uses generally ranging in density from 3 to 10 units/acre, can be found throughout the unincorporated county, but are concentrated in three areas. These areas are along Indian River Boulevard, along U.S. Highway 1 in the south part of the County, and along SR 60 between 58th and 82nd Avenues. The multiple -family districts are established to implement the policies of the Indian River County Comprehensive Plan for managing land designated for residential uses, providing opportunities for multiple -family residential units, and ensuring adequate public facilities to meet the needs of residents. These districts are also intended to implement the county's housing policies by providing opportunities for a varied and diverse housing supply. ANALYSIS In this section, an analysis of the reasonableness of the future land use amendment will be presented. Specifically, this analysis will address: • Plan amendment review standards; • The request's impact on public facilities; • The request's consistency with the county's comprehensive plan; • The request's compatibility with the surrounding area; and • The request's potential impact on environmental quality. Concurrency of Public Facilities The subject property is located within the County's Urban Service Area, an area deemed suited for urban scale development. Within the Urban Service Area, the comprehensive plan establishes standards for transportation, potable water, wastewater, solid waste, stormwater management, schools, and recreation. Adequate provision of those services is necessary to ensure the continued quality of life enjoyed by the community. To ensure that the minimum acceptable standards for those services and facilities are maintained, the comprehensive plan requires that new development be reviewed for compliance with concurrency requirements. For a future land use designation amendment, that review is undertaken as part of the conditional concurrency determination application process. It is important to note that the adoption of the proposed future land use amendment will not have any additional impact on any public facilities or services. As with all projects, a detailed concurrency analysis will be done in conjunction with review of an application for site development. That concurrency analysis will address facility service levels and demand based on a specific development plan. As infill development, there is minimal impact to this area. 4 312 Consistency with Comprehensive Plan Future Land Use Element Policy 14.3 In evaluating a future land use element map amendment request, the most important consideration is Future Land Use Element Policy 14.3. This policy requires that one of the following "four criteria be met in order to approve a land use amendment request: • The proposed amendment will correct a mistake in the approved plan; • The proposed amendment will correct an oversight in the approved plan; • The proposed amendment is warranted based on a substantial change in circumstances affecting the subject property; or • The proposed amendment involves a swap or reconfiguration of land use designations The proposed land use amendment meets the policy's first criterion. The future land use designation is not consistent with the existing CL, Limited Commercial, zoning district. An amendment to the future land use map would correct the inconsistency and allow the properties to continue to develop commercially, as other adjacent properties to the north and west have developed. According to the Applicant, New Car Wash LLC.: "The property currently contains a multiple family residential land use designation of M-1 and a commercial zoning designation of CL. The M-1 land use designation is not compatible with the CL zoning district. This amendment will correct this inconsistency by amending the Land use designation to Commercial/Industrial, permitting the commercial uses that are permitted in the CL zoning district. Furthermore, this amendment is in harmony with Policy 14.3 of the County's Comprehensive Plan." This amendment meets the criteria listed in this policy for the approval of a future land use designation amendment as it will correct a mistake in the approved plan as the future land use designation currently applied to the parcels is not consistent with the surrounding land use patterns and zoning designation. Future Land Use Element Policy 1.20 Future Land Use Element Policy 1.20 states that nodes shall be located along roads with functional classifications appropriate to the level of activity. According to the Applicant, New Car Wash LLC.: "The Property is located within the commercial node located along U.S. Highway 1, adjacent to and within the City of Sebastian. This node is identified in Table 2.5 of the County's Comprehensive Plan. As these commercial nodes have been identified as places appropriate for commercial development, this amendment will provide a land use designation on the Property that is consistent with this policy and the intent of the commercial node designations in the County's Comprehensive Plan." 5 313 The proposed location for the Commercial Industrial future land use designation is along a major arterial road and can appropriately serve commercial uses. Therefore, the proposed amendment is consistent with Policy 1.20. Summary of Consistency with the Comprehensive Plan While the referenced policies are particularly applicable to this request, other Comprehensive Plan policies and objectives also have relevance. For that reason, staff evaluated the subject request for consistency with all plan policies and objectives. Based upon that analysis, staff determined that the request is infill development and consistent with the Comprehensive Plan. Compatibility with the Surrounding Area The current Medium Density (M-1) residential future land use designation is not compatible with the abutting property to the north and south that share frontage along the Highway U.S. 1 corridor. The property is surrounded by and partially developed with commercial uses, with the exception of the property to the east and south. The adjacent mixed-use properties are within the City of Sebastian. As the subject property is not annexed, it wasn't given the commercial designation along the corridor. According to the Applicant, New Car Wash LLC.: "The Property is located within the commercial node located along U.S. Highway 1 that includes the City of Sebastian and the Unincorporated areas adjacent to the municipal boundaries. This area is anode of various commercial and retail service. Specifically, the property surrounding the Property to the north, south and east contain commercial uses, with a mobile home park containing a multiple family residential land use designation to the east. The commercial uses permitted within the C/I land use designation are compatible with the surrounding commercial use. Furthermore, the design and operations of the proposed car wash facility will reduce any possible impacts on the surrounding property as all of the activities taking place within and enclosed structure." If approved, the proposed land use amendment will be compatible with surrounding properties. Potential Impact on Environmental Ouality The subject property contains no environmentally sensitive land, such as wetlands or sensitive uplands. Thus, any further development of the site is anticipated to have little or no impact on environmental quality. No adverse environmental impacts associated with this request are anticipated. CONCLUSION This amendment will correct the future land use designation to Commercial/Industrial (C/I), permitting the commercial uses that are allowed in the Limited Commercial, (CL) zoning district. This land use amendment is consistent with Policy 14.3 of the County's Comprehensive Plan. The proposed future land use map amendment is consistent with the comprehensive plan, compatible with surrounding land uses, and will cause no adverse impacts on the environment or 314 provision of public services. The proposed change accommodates an efficient land use and facilitates economic development at a site located close to a highly developed area along Highway U.S. 1. RECOMMENDATION Based on the analysis, staff and the Planning and Zoning Commission recommend that the Board of County Commissioners approve the proposed future land use map amendment and change the future land use designation on the subject property from M-1 to C/l. ATTACHMENTS 1. Proposed Future Land Use Map 2. Existing Future Land Use & Zoning Map 3. Land Use Amendment Application 4. Land Use Amendment Ordinance 7 315 316 7 APPLICATION FORM LAND USE DESIGNATION AMENDMENT (LUDA) ATTACHMENT 3 INDIAN RIVER COUNTY Planning Division accepts Land Use Designation Amendment applications only during the months of January, April, July and October of each year. Each application must be complete when submitted and must include all required attachments. An incomplete application will not be processed and will be returned to the applicant. Assigned Project Number: LUDA - Signature of Owner or Agent: Property Information Site Address: 12950 US Highway 1, Sebastian, FL 32958 Site Tax Parcel I.D. #s: 30382100001000000024.0 Property #1 Existing Land Use Designation: M-1 Requested Land Usecommercig Desi ation: ; Industrial Total (gross) Acreage of Parcel: ; +J_ 0.93 Existing Use on Site: vacant lot Property #2 Proposed Use on Site: Tunnel carwash with 16 vacuum stalls Existing Zoning District: Requested Zoning District: Acreage (net) to be Amended: Property Pr #1 #2 CL CL APPLICANTS) MUST ATTEND A PRE -APPLICATION CONFERENCE WITH LONG-RANGE PLANNING SECTION STAFF PRIOR TO APPLYING. 318 Current Owner Applicant (Contract Agent Purchaser Name: New Car wash LLC Same Dwayne Dickerson, Esq. Dunay, Miskei & Backman, LLP Complete Mailing PO Box 570576 Same 14 SE 4th Street, Suite 36 Address: Atlanta, GA 30357 Boca Raton, FL 33432 Phone # (including area 404-216-3331 Same 561-405-3336 code Fax # (includingarea code 561-409-2341 E -Mail: Martin@dirtydogscarwash.com Same ddickerson@dmbbiaw.com Contact Person: Martin Emmett Same Dwayne Dickerson, Esq. Signature of Owner or Agent: Property Information Site Address: 12950 US Highway 1, Sebastian, FL 32958 Site Tax Parcel I.D. #s: 30382100001000000024.0 Property #1 Existing Land Use Designation: M-1 Requested Land Usecommercig Desi ation: ; Industrial Total (gross) Acreage of Parcel: ; +J_ 0.93 Existing Use on Site: vacant lot Property #2 Proposed Use on Site: Tunnel carwash with 16 vacuum stalls Existing Zoning District: Requested Zoning District: Acreage (net) to be Amended: Property Pr #1 #2 CL CL APPLICANTS) MUST ATTEND A PRE -APPLICATION CONFERENCE WITH LONG-RANGE PLANNING SECTION STAFF PRIOR TO APPLYING. 318 LAND USE DESIGNATION AMENDMENT APPLICATION CHECKLIST Please attach the following items to this application. Do not ignore any of the items. Indicate "N/A" if an item is not applicable. 1. Fee: Property Size LUDA Only: LUDA and Rezoning - 10 Acres or less small scale LUDA S3,000.00 $3,000.00 - 1,MMr than 10 Acres $5,000-00--- $6,000.00 YES NO 2. Completed LURA A2plication Form ifront page) X 3. Completed Rezoning Application Form if applicable) NIA 4. Letter of Authorization from Current Owner(s) OR Current Owner is Applicant X 5. Verified statement (separate letter) naming every individual or entity having legal orequitable ownership in the ro perty. x 6. One 1 Copy of the Owner's Deed X 7. A Current Owner's Title Policy OR A Certificate of Title from a Title Company OR An attorney's written opinion evidencing fee ownership of the property. x 8. One (1) SEALED boundary survey of the area to be amended. The boundary survey shall include, but not be limited to the following: ❑ a legal description of the land proposed for resdesignation; ❑ the size of the land proposed for redesignation; ❑ the public road right-of-way width of adjacent roads; and ❑ a north arrow 9. Electronic version S Word is preferable of the legal description X 10. Copy of Approved Concurrency Certificate OR Copy of filed application for Concurrency Certificate, including traffic study, if applicable per Section 910.08 (2)(a)(4) of the County Land Develo went Re rations x 11. Written statement discussing the following: X ❑ The proposed amendment's consistency with the goals, objectives, and policies of the comprehensive plan; ❑ The proposed amendment's impact on public facilities and services ❑ The proposed amendment's environmental impacts; and ❑ The proposed amendment's compatibility with surrounding areas. NOTE: ITEMS 2-7 MUST INDICATE THE SAME OWNERSHIP OF THE SUBJECT PROPERTY. Revised: October 7, 2022 FAConununity DevelopmenAAPPL1CATIONSTomp. Plan and Rezoning applicationslCPAAMENDMENTFORM - Updated 2019.docx 9RC Indian River County Future Land Use Map Amendment/Rezoning Authorization Form TO: Planning Division Indian River County 180127" Street Vero Beach, FL 32960 FROM: New Car Wash LLC (Property Owner) PO Box 570576 Atlanta, GA 30357 Property Tax 1. D. #: 30382100001000000024.0 Property Address: 12950 us Highway 1, Sebastian, FL 32958 The undersigned is hereby authorized Dwayne Dickerson, Esq. to act as agent and/or make application to Indian River County for the above referenced property for the following applications (please mark the appropriate box): 1a Future Land Use Amendment u Rezoning Owners Name (Print) Ov 0drs kgriature STATE OF FLORIDA COUNTY OF INDIAN RIVER 7_ t1 Date The foregoing instrument was acknowl ged before me by means of 52 hysical presence or online notarization, this day of 202_ by &j -R6 :;1AA4-C Personally know �ORproduced identification ❑__ (SEAL) TAMARA JONES -SMITH NOTARY PUBLIC COBB County State of Georgia My Comm. Expires member 29, 2026 NOTARY Printed Namee nrldt 1''k t S•t't j'(,�,, Commission Number: W -Do 594S52— Commission Expiration: .d7. EC ,lr2T2d F1Co n nunity Dcvclopn=t\APPL1CATl0NS!Comp. Plan and Rmning applications\CPAAMENDMENTFORM - Updated 2019.docx 320 DU NAYGary Duney Hope Calhoun Christina Bitenki Bonnie Misket Dwayne Dickerson David F. Milledge M#SKE. Scott Backman Ete Zachariades Jeffrey Schneider BAC K M AB 1 LLP Eric Coffman A A aRFE Matthew H. Scott Sara Thompson Dirty Dog's Car Wash Land Use Designation Amendment (LUDA) Justification Narrative New Car Wash, LLC ("Petitioner") is the owner of the +/- 0.93 -acre parcel located at 12950 US Highway 1 (Parcel ID: 30382100001000000024.0) ("Property"), which is generally located on the east side US Highway 1 between Jackson Street and 132nd Street in the City of Sebastian, in Indian River County, Florida ("County"). The Property is designated Medium -Density Residential -1 (M-1) on the County's Future Land Use Map and is zoned Limited commercial district (CL) on the County's Zoning Map. The Property has been vacant and underserving the community and the County tax base and is due for redevelopment with a use that will serve community needs. Petitioner intends to revitalize the Property with development of a +/- 3,766 square foot car wash, self-service ("Project"), which will provide a convenient, affordable, and environmentally friendly option for County residents and visitors to keep their vehicles clean. The proposed car wash facility is a permitted use in the CL zoning district pursuant to Code Section 911.10 (4). As such, Petitioner has recently submitted approval for a Site Plan for the Project. During the site plan review process, it was discovered that the Property's underlying land use designation (M-1, Medium - Density Residential -1) is inconsistent with the zoning designation; therefore, Petitioner is submitting a request for a Land Use Designation Amendment (LUDA) to change the land use designation to Commercial/Industrial. Per the County's LUDA application form, Petitioner must demonstrate compliance with the below criteria to receive LUDA application approval. The criteria is provided in Bold text with the response provided below each criterion. 1. The proposed amendment's consistency with the goals, objectives, and policies of the comprehensive plan; As previously stated, the Property currently contains a multiple family residential land use designation of M-1 and a commercial zoning designation of CL. The M-1 land use designation is not compatible with the CL zoning district, as it does not permit the commercial uses permitted within the CL zoning district. This amendment will correct this inconsistency by amending the land use designation to Commercial/Industrial, permitting the commercial uses that are permitted in the CL zoning district. Furthermore, this amendment is in harmony with Policy 14.3 of the County's Comprehensive Plan which states the following: Policy 14.3: Indian River County shall approve plan amendments only upon a showing that one of the following criteria has been met: The proposed amendment will correct an oversight in the approved plan. The proposed amendment will correct a mistake in the approved plan. 14 S.E. 4th Street, Suite 36, Boca Raton, FL 33432 Tet: €561) 405-3300 Fax. 15611409-2341 www.dmbbLaw.com 321 • The proposed amendment is warranted based on a substantial change in circumstances. For Future Land Use Map amendments, the change in circumstances must affect the subject property. For Future Land Use Map amendments, the proposed amendment involves a swap or reconfiguration of land use designations at separate sites and, that that swap or reconfiguration will not increase the overall land use density or intensity depicted on the Future Land Use Map. This amendment meets the criteria listed in this policy for the approval of a land use designation amendment as it will correct an oversight in the approved plan with the Property containing a land use designation that is not compatible with the zoning designation. In addition, the amendment is consistent with the following policies listed in the County's Comprehensive Plan: Policy 1.20: Commercial/industrial designated areas shall be structured as nodes. These nodes shall be located along roads with functional classifications appropriate to the level of activity & Policy 1.29: Node locations and estimated sizes shall be listed in Table 2.5. The Property is located within the commercial node located along US Highway 1, adjacent to and within the City of Sebastian. This node is identified in Table 2.5 of the County's Comprehensive Plan. As these commercial nodes have been identified as places appropriate for commercial development, this amendment will provide a land use designation on the Property that is consistent with this policy and the intent of the commercial node designations in the County's Comprehensive Plan. 2. The proposed amendment's impact on public facilities and services; This amendment will not negatively impact the public facilities and services. As an infill development, the Project will connect to the existing utility connections already in place and will not negatively impact the County's level of service standards for public utilities. 3. The proposed amendment's environmental impacts; The proposed use will not negatively impact the environment. Advances in technology have revitalized the operation of stand-alone self-service car wash facilities. The automation of the car wash process has allowed the entire washing process to occur within a small, enclosed building envelope with detailing occurring on an enclosed automated conveyor belt. Cars will enter through the south side of the car wash tunnel and if an interior wash is also included in their selected service they will then enter through the north side of the enclosed conveyor belt for employees to complete interior cleaning, detailing, and waxing. The enclosure of the car wash process reduces noise and other potential effects on neighboring properties. Additionally, the introduction of the automated, self-service pay station has streamlined the payment and service process to efficiently move customers through the car wash cycle. All of these innovations have 322 spurred an opportunity for the development of these modern, environmentally friendly facilities that provide a desirable and sustainable service to members of the community. Lastly, the proposed car wash will utilize a water reclamation system to reduce water consumption and minimize impacts on the natural environment. The water reclamation system will remove contaminants such as grease, oil, and rust and prevent release into the storm drain system. This water reclamation system will allow the recapture and reuse of water to conserve freshwater resources. The Project will have a positive impact on the natural environment by providing a more environmentally friendly alternative to washing a vehicle at home. 4. The proposed amendment's compatibility with surrounding areas. As previously stated, the Property is located within the commercial node located along US Highway 1 that includes the City of Sebastian and the Unincorporated areas adjacent to the municipal boundaries. This area is a node of various commercial and retail services. Specifically, the properties surrounding the Property to the north, south and east contain commercial uses, with a mobile home park containing a multiple family residential land use designation to the west. The commercial uses permitted within the C/I land use designation are compatible with the surrounding commercial use. Furthermore, the design and operations of the proposed car wash facility will reduce any possible impacts on the surrounding properties as all of the activities taking place within an enclosed structure. 3 323 ORDINANCE NO. 2023 - AN ORDINANCE OF INDIAN RIVER COUNTY, FLORIDA, AMENDING THE FUTURE LAND USE MAP OF THE COMPREHENSIVE PLAN BY CHANGING THE LAND USE MAP DESIGNATION FOR +_1.65 ACRES LOCATED ON THE EAST SIDE US HIGHWAY 1 BETWEEN JACKSON STREET AND 132nd STREET FROM MEDIUM DENSITY (M-1) TO COMMERCIAL INDUSTRIAL(C/I), AMENDING THE FUTURE LAND USE MAP AND PROVIDING CODIFICATION, SEVERABILITY, AND EFFECTIVE DATE. WHEREAS, the Board of County Commissioners adopted the Indian River County Comprehensive Plan on February 13, 1990, and WHEREAS, the County received the subj ect comprehensive Plan amendment application during its July 2023 amendment submittal window, and WHEREAS, the Local Planning Agency held a public hearing on this comprehensive plan amendment request on September 28, 2023 after due public notice pursuant to Section 163.3184(l 1), FS, and WHEREAS, the Local Planning Agency voted to recommend approval of this comprehensive plan amendment to the Board of County Commissioners, and WHEREAS, this Comprehensive Plan Amendment meets the criteria established in Chapter 163.3187(1)(c), FS, for small scale development amendments, and WHEREAS, the Board of County Commissioners of Indian River County held a Comprehensive Plan Amendment Adoption Public Hearing on October 31, 2023 pursuant to Sections 163.3184(11) and 163.3187(2), FS after advertising pursuant to Section 125.66(5), FS; WHEREAS, the Amendment to the Indian River County Comprehensive Plan identified in Section 2 is hereby adopted as a small-scale development amendment, is less than 50 acres, not an area of critical state concern, and only proposes a land use change to the future land use map for a site-specific small-scale development activity pursuant to Chapter 163.3187(1), of the Florida State Statutes. NOW, THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of Indian River County, Florida, that: SECTION 1. Comprehensive Plan Amendment Page 1 of 4 324 ORDINANCE NO. 2023 - FROM MEDIUM DENSITY (M-1) TO COMMERCIAL INDUSTRIAL(C/I) SECTION 2. Amendments to the Comprehensive Plan The land use designation of the following described property situated in Indian River County, Florida to wit: That part of Lot 24, lying East of U.S. Highway # 1, of TOWN OF WAUREGAN, as described as follows: From a point on the Northeasterly Fleming Grant line in Section 30 of Fleming Grant, at a concrete monument marking the boundary between Lots 25 and 26 of TOWN of WAUREGAN, run Southwesterly on the boundary between Lots 25 and 26 of TOWN OF WAUREGAN 322.38 feet to the Easterly right of way of U.S. Highway #1 (120 foot highway width); thence run Northwesterly along the Easterly right ow way of U. S. Highway No. l a distance of 318.03 feet to a Point of Beginning, this being the point at which the boundary of lots 24 and 25 intersect with the Easterly right of way of U.S. Highway No. 1 From said Point of Beginning, continue Northwesterly on said line Easterly right of way a distance of 150 feet; thence run Northeasterly on a line parallel to the Southwesterly boundary between Lots 25 and 26 of TOWN OF WAUREGAN, a distance of 266.16 feet, more or less, to the Fleming Grant line, Thence run Southeasterly along the Northeasterly side of said Lot 24 on the Fleming Grant line, a distance of 148.59 feet to a point marking the boundary of Lots 24 an 25; thence run Southwesterly on the boundary line between Lots 24 and 26 (this line being Parallel to the Southwesterly boundary of Lots 25 and 26 of TOWN OF WAUREGAN) a distance of 283.8 feet to a Point of Beginning. ALL IN TOWN OF WAUREGAN, Fleming Grant, according to the Plat filed in the Office of the Clerk of the Circuit Court of Brevard County, Florida in Plat Bookl, Page 75; and refiled in the office of the Clerk of the Circuit Court of St. Lucie County, Florida, in Plat Book 1, Pages 178 and 179; said land now lying and being in Indian River County, Florida. Parcel Number: 30-38-21-0000100000024.0 And Begin at the Easterly Right of way of U.S. Highway #1 where this line intersects with the boundary between Lots 25 and 24 of WAUREGAN (iron pipe), this being the point of beginning; thence run Northeasterly on the boundary between Lots 25 and 24 a distance of 283.8 feet to the intersection with the Fleming Grant line in Section 30 of Fleming Grant, Thence run Southeasterly on a line parallel to the boundary of Lots 25 and 24 of WAUREGAN (same line also parallel to the boundary of Lots 25 and 26 of WAUREGAN), a distance of 298.17 feet more or less, to the intersection with the Easterly right-of-way of U.S. Highway 1 (iron pipe); Thence run Northwesterly along the Easterly right of way of US Highway 1, a distance of 118.03 feet to the Point of Beginning. ALL IN WAUREGAN, Fleming Grant, according to the Plat filed in the Office of the Clerk of the Circuit Court of Brevard County, Florida in Plat Bookl, Page 75; and refiled in the office of the Clerk of the Circuit Court of Page 2 of 4 325 ORDINANCE NO. 2023 - St. Lucie County, Florida, in Plat Book 1, Pages 178 and 179; said land now lying and being in Indian River County, Florida. Parcel Number: 30-38-21-0000100000025.0 SUBJECT TO ALL EASEMENTS, RIGHTS OF WAY, RESERVATIONS AND RESTRICTIONS, IF ANY. SECTION 3. Repeal of Conflicting Provisions All previous ordinances, resolutions, or motions of the Board of County Commissioners of Indian River County, Florida, which conflict with the provisions of this ordinance are hereby repealed to the extent of such conflict. SECTION 4. Severability It is declared to be the intent f the Board of County Commissioners that, if any provision of this ordinance and therefore the Indian River County Comprehensive Plan Amendment is for any reason finally held invalid or unconstitutional by any court of competent jurisdiction, such provision shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining provisions. SECTION 5. Effective Date Unless challenged, the effective date of this ordinance, and therefore, this plan amendment, shall be November 30, 2023. If challenged, the effective date of this ordinance, and therefore, this plan amendment, shall be the date a final order is issued by the Department of Community Affairs or Administration Commission finding the amendment in compliance with Section 163.3184, Florida Statutes, whichever occurs earlier. Approved and adopted by the Board of County Commissioners of Indian River County, Florida, on this 31 St day of October 2023. This ordinance was advertised in the Press -Journal on the 15th day of October, 2023 for a public hearing to be held on the 31' day of October, 2023, at which time it was moved for adoption by Commissioner seconded by Commissioner , and adopted by the following vote: Joseph H. Earman, Chairman Susan Adams, Vice Chairman Deryl Loar, Commissioner Laura Moss, Commissioner Joseph E. Flescher, Commissioner Page 3 of 4 326 ORDINANCE NO. 2023 - BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY Joseph H. Earman, Chairman ATTEST BY: Ryan L. Butler, Clerk of Circuit Court and Comptroller APPROVED AS TO FORM AND LEGAL SUFFICIENCY William K. DeBraal, County Attorney APPROVED AS TO PLANNING MATTERS Andrew Sobczak, Planning and Development Services Director Page 4 of 4 327 • ✓ ��. j. . . y Pul r ; t The proposed amendment will correct the existing inconsistency by amending the future land use designation from Medium Density 1 (M-1) to Commercial/Industrial (C/I). is, This will permit commercial uses allowable in the CL zoning district. PZC Action On September 28, 2023 the PZC recommend that the BCC approve the request to amend the future land use map designation from M-1 to C/I for the subject properties. Future Land Use Pattern Existing Land Uses ® North: City of Sebastian, Riverfront Mixed Use, Existing Commercial Office Center m East: M-1, Existing Mobile Home Park � South: City of Sebastian, Existing Cemetery po, West: City of Sebastian Riverfront, Mixed Use, Existing Wal-Mart Criteria Analyzed Impact Upon Public Facilities; o, Consistency with the Comprehensive Plan; Compatibility with surrounding area; and Potential Impact on Environmental quality Impact Upon Public Facilities Sufficient capacity in all concurrency related facilities Transportation ► Water ► Wastewater ► Solid Waste ► Stormwater Management ► Recreation ► A detailed concurrency review will be done at the time of project development Consistency with the Comprehensive Plan Future Land Use Element Policy 14.3 The proposed amendment is consistent with the second criterion of Policy 14.3, a mistake in the approved plan. The amendment will correct an inconsistency with the existing zoning. Environmental Impacts Compatibility Ili,. North: Within the City of Seoastian Riverfront Mixed Use, (existin Commercial Office Center ► South: Within the City of Sebastian Institutional, (existing Ceme'ery) ► East: M-1 Medium Density, (existing mobile home subdivision) ► West: Within the City of Sebastian Riverfront Mixed use, Across Highway US I (Wal-Mart Supercenter) "i Impacts are anticipated Ww P As this is infill development lop 114.ft�vl"`' no adverse Environmental "i Impacts are anticipated Conclusion ► The Amendment will correct the future land use designation to Commercial Industrial (C/I); ► Will permit the commercial uses that are allowed in the Limited Commercial, CL zoning district; ► Is consistent with Policy 14.3 of the County's Comprehensive Plan; ► Is compatible with surrounding uses; ► Is consistent with the overall Comprehensive Plan ► Will have no additional environmental impacts ► Staff supports the request Recommendation ► Staff recommends that the BCC approve the request to amend the future land use map designation from M-1 to C/I for the subject properties. I0 -3 (• 23 LocaliQ Florida PO Box 631244 Cincinnati,OH 45263-1244 GANNETT PROOF OF PUBLICATION Indian River County Planning Kathy Charest Indian River County Planning 1 801 27Th Street Vero Beach FL 32960 STATE OF WISCONSIN,COUNTY OF BROWN Before the undersigned authority personally appeared,who on oath says that he or she is the Legal Advertising Representative of the Indian River Press Journal/St Lucie News Tribune/Stuart News,newspapers published in Indian River/St Lucie/Martin Counties, Florida;that the attached copy of advertisement,being a Legal Ad in the matter of Classified Legal CLEGL,was published on the publicly accessible websites of Indian River/St Lucie/Martin Counties, Florida,or in a newspaper by print in the issues of,on: 10/15/2023 Affiant further says that the website or newspaper complies with all legal requirements for publication in chapter 50, Florida Statutes. Subscribed and sworn to before me,by the legal clerk,who is personally known to me,on 10/15/2023 Legal rk Notar, tat} of ,Cou rows .S',/5'' c9 My commision expires Publication Cost: $470.40 Order No: 9366954 #of Copies: Customer No: 1125971 1 PO#: TI-IIS IS NOT AN INVOICE! Please do no!use ibis form for payment remittance. NANCY HEYR MAN Notary Public r7. State of Wisconsin Page 1 of 2 �i� , BEFORE THE BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY NOTICE OF FUTURE LAND USE MAP AMMENDMENT - PUBLIC HEARING The Board of County Commissioners of Indian River County, Florida, will consider recommending the adoption of a County Ordinance amending the Future Land Use Map designation for land within the unincorporated portions of Indian River County. A public hearing, at which parties in interest and citizens shall have an opportunity to be heard, will be held on Tuesday,October 31,2023 at 9:00 a.m.in the County Commission Chambers of the County Administration Building located at 1801 27th Street,Vero Beach,Florida.The proposed ordinance is entitled: AN ORDINANCE OF INDIAN RIVER COUNTY, FLORIDA,AMENDING THE FUTURE LAND USE MAP OF THE COMPREHENSIVE PLM BY CHANGING THE LAND USE MAP DESIGNATION FOR +1.65 ACRES LOCATED ON THE EAST SIDE US HIGHWAY 1 BETWEEN JACKSON STREET AND 132nd STREET FROM MEDIUM DENSITY (M-1) TO COMMERCIAL INDUSTRIAL (CA), FUTURE LAND USE MAP AND PROVIDING CODIFICATION,SEVERABILITY,AND EFFECTIVE DATE. The applications may be inspected by the public at the Planning and Development Services Department of the County Administration Building A, located at 1801 27th Street, Vero Beach, Florida, between the hours of 8:30 a.m.and 5:00 p.m.on weekdays. For more Information,contact Cindy Thurman at(772)226-1243. Anyone who may wish to appeal any decision that may be made at this meeting will need to ensure that a verbatim record of the proceedings is made,which includes the testimony and evidence upon which the appeal is based. Anyone who needs a special accommodation for this meeting must contact the county's Americans with Disabilities Act Coordinator at (772)226-1223,at least 48 hours in advance of the meeting. Indian River County Planning and Zoning Commission By:-s-Joseph H.Earman,Chairman ..,.....„ .,,, vii, --\ <'. • ' -.N ' -.4rij.4--171 ' '.'S T / Y....,, \ M/ \\1FA. y t .....,;=.77...;-,,i, "n I.MV IC M Au 4� ��i me TCPALM,COM I SUNDAY.OCTOBER 15,2023 I 711 EAYiB73 iii�iliY µDieeETsC ed+tarsIMEMIIIII ?LA Public COMP Nooses, a GIS Pubtie NDtle 172111.41. .IA JQ{JS • aerr d Na < a+ mN.k W.we ISLAND COMP°FIENSIVE FoNE ' vs..cern E.feV41. xam▪ EE (aE PE!• Ero F I ETOWN I ER SU°. newk "�l.p r.j. .NI . .OPER TV MONTS ELEMEiw. M•RTIN CO11!ircNOI U 00 - ,� ahrrlaa<ol1iar3iWl PROVIDING TOE CNDIn4 8 '«s<lieRll�.T_hlaltEER Autos Wanted �ik�w.I LK .«<nn nl"'rac"a^: w • FNeHDin"coil% -x°i Tot rinvl-A -or nsl ADI Ix e,"lnui N "Baaaere OPPORTJUVE0 pR 101.ROTIE ip,prI i AAA AUTO Analysis 1s10O'"F' °""":r ov:wxa TIE oM.RCxenflvE PUN 1111111 el•t W All moires•All Price '"i:aWe,:AZ-4,dN_0Oc ewe'. ELONRLI0TI OE NOV10oORG ON PRC'PELRTY RIOErt LLEMEI"IE Eau000000p•rator g Ranges,We Mir Car, IN THE CIRCUIT COVET FOR areal .w ... sevens61LNV1 :DING FROVIOIN° FOR 100E Okeechobee,FL 10 Trucks SAINT WOE COUNTY, ellen a«a.rri m i EFFECTIVE TR•HSNITTAL Of supervise wall,drilling W Motorcycles,Est.IMI OMMM mVM10N AN ROI OF PUBLIC ARR.°WILL • •MENO oat;10 EFCLORIW Doer t the rip. 772-260.9707 Riven <Mary, FLORIDA. FOLLOWS:,as r oop.AR*HENT Di' coNOMIc FIN Na.1NCp.lnl INDIAN ''''5,4[414 Rl.r ece:iuNITVEol 9111.10100 1IN Doer Inspection at all RouTf;Veil: 4 .ace nXGO " drilling mob,Incl,drilling .N Pl1 EfTATe°F (Oee NEPNL HD 'L aor'm CLmlPtl<TI OR AUTO ALL VEARSI • CIAANNE BRUufTTI SROCEWNEHo non“ITC A swK supe," jk moNa iFvf.ABI fIfT�OV V40VIDiN° rigs,hvdro &airwinchJ ru or Used Cars,VOM, PATRICIACN%,iYR 1 '1.000 PLA sun N nor fF T1VE •E. W n rol i air Trucks.Running OF Na. TR •,eN11MITI AAUA •• .111 a 1>1V@LtC E. N awl.L 0E COmOrets00 OpeO“e 'TTI R ° "A`« m M1FdcM CASN PAID“ NlTIAl o CR EDI TORS katw s1n0°GTX! OOt Gmm vi Cnn E.O AS collOws: We Came TO You! UrNIw r,=--..... W Nwla a Oi D▪ein COUNTY: stabilize mpchinn i 1 Cell 561.7@6901!est.1116 grarN.1 NA AROV-A.R COxPLICT,HO 3wN,ilr„„0,1a.,RMA n Mewnxwsn Oiln�rN.1 „, plap.0°0 ullan“Fills.004AM.. n"i-..sur 1 a.0 A. 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P0000!reerceaas Bent-ROI-SUM River Or., re,r t 1ST 'a" Select i attach drill bits Silver Esl.i IM.114650 MINS :a1 e•P 1'Iso w.:F1.aN .loll.°1«%I111r',Neste!e,m iw,d «0014,113 a:%.-neon and rods S.ptomaine drill Perfect Condition.03.00 r "w"pf1dF,•I rP, nn umfRrl<r e a .m�1 wM' bits as needed.Drive/guide or Bet Oft..Is 011 el6iee m.s.rrrrrm....f a nal rewire I14 1 a p mons% v. n nmr 1 101- w led Equipment _ a aNarav a.wI welaeia llrw'sr�"ax Iw.l a'anpr"ee11. �<IUm«" RIM.,.lWlne'ri<e %Including&Ming ria 10 VOW Swam " or• a oaaT te.fht°dill,.Ensure soh r pr1w10.rFlw�im""w..°ens% IM IMgn River me 4 reseed 4m rn °^;w ro nsDDrt°t;Maldrilling eht tr mites ether e aa.n<I heel. e.F.' suncear �I;�sass» ..plate Of...Travel caw .h m“k N a k0Imleli0 0l Can... ,t,„,,.... M n 'wr"ai00901 to varlaue un°ntkl led flit !u�r 1°°"'0'o.M mN corn'A o� o`°°^ °r a ya "'4`ka mnnb_ '-.1- n worksites within the same ton flit IMPOL... lEPOR i“I LAreR MOEP W 4 - I Cp1°w fo app NPN <m1 =,=1.0 rbnmn,w linty Incl0enl 1 la MpxTNT AcrFa T a� li rens%Reeve iwn cNM a1 rii N fr It.11 rosiHon.Rea:HS ONIoF i T. ICAiOx Or •'„� 1 OV 10 soh MYae4 •`•' Ond 1a ma.pap in ',j rite'“.OTIC'Ol n NOTICE APTEI gllmwn 01w.eb'10d,, 0 some rel..slflon. CY Oe°THIN NOTICE EON N < < TE(YDAar no.0 vertglini 11BI Sm mord Ins a R<wI 0 MI's T FO G rOr mown l E Ike foe.N 'kn«101*NOP O..Nbxw r.--:.:.-.nwrK rn. TZIti rronlg[ansirvCliMlm OVLLIFICATIONt IRFaI WX YO0° TOWNOJYPRER 1iLAN° Nfamakn, F1em. IITF X. gma.LcOm. Caaar ra a cPm P"*"a'' n Nnni„wa xpPOSED Nawlr nes,Tam P aem.ws 'r•gl suet i'... wry i G2YI r...<rN WSEMOEENT T°FLE CprnJwwNn rnGsl ion ion realms Mln Pass '• m ynV°' C efXFMNVE PLAN P°�W MDN<per is,X210 hCJa DNubn N I ONTHT AFTER%T. ra.• 1 le hen.Oven Heel She Two TCN%siren Si01A1"del p.nt rROot •E Of r AN ONF Kona xl EDiA eEi ML lraluWM1`WN. PVBLIC•T:OMK Tont NOTI<e3 CMMO•uUON FOR 00'6 raw II GIF cnwnU:14 " ewEeemrrtln W ALL ClA1Ms NOr GILED WITXIu NN 1 (11� bitla SMu1m YY . TXE TIME F[ 003 BET SECTION COyNTV 5 EII.Ifttg T T 4 Me aN1« • wTVOkl4W 0.'r A S <ar0i ie 2s Fbrlee l ow IN FLORIDA A10 i5 B SECTION ITIE.......CT.T. Ce�m RN lnNMf b<. Town age BtiltOND 3.OLI m r Nevr el l MILDER 0["AsOR t. e I Wino alb i Commitir llM NIS esnnao OURS IN ADVANCE I-p• 1°"'da s DEVELOPMENT INC °Care Ca.. nTANOFa TIME Or TOltaint i t cm...PION,e1 ann.ne residential and commercial Corm:•. Cwmr. ri-c T ORT. DOVE. a ry ins a'101.1, building contracting wlaa is W'er.'"°a 3.ai.m.nM1 r 'loinsonIMM RE'A DI1n Ix01AtH RAVER COUNTY s"O.2„..„... .”..,......!_,L,'•dOw Ir1m Capon.High Schaal O«'1 curt ii: MORE ITER E 0 ZMINO D.CENT•fa TE.DEATNIS "LXM„'ala.:n BEFORE THE BOARD OF OlolOma OM 11 monlhf of LONSbITCNGrp O�Me •RRED. kmkn N MM1 N.CernwA Ower experience am a Blacksmith s1 w; lanes% nTTMk. 1 �, resume meto ABOVE Mae °°" `"' -, „e " ' :' N1S'^' COUNTY COMMISSIONERS naume BEYOND AND until n 1. N.r BEYOND m awns“ 4WOIO. JOHN ICE OC PCigi=INO SW orts L TTM wwmWN.,l1w1rINa,4wm.i tent r„;;;;;.,,.. P.A.P,A.J MOT“CEOADOPTI aNEARIMO Sw Eria Sr.,119321. Lucie, 'lk,,,,<,® ,:;;,: J me.. ° .Era.i AROINANC,aNPON INDIAN RIVER COUNTY FL]e99. aaawrn.r Marlin n"1'4“1r Lit. prraY,rreea0.frol TOWN OR JLPIITERISLAND. -D,ev;^m''d'a�°^a ;ern'_ F°I«°" NOTICE OF FUTURE LAND USE Narver. TAMIL fin fw AwrHn Dwnn eon..sip. TM Town ori Ju hens mer. Real Estelle w1A'on NWls ms iiliN�lfInn3 uM�i10 v00"anMaN.xa les NAMCEOFTXET00N MAP AMMENDMENT- A j, f ��i, GOMN.IS'fION OF TXF TOWN OF Rentals h� 6.. T !Oulu FOR i"s b•[ YCwcr HNTTV fIOM1"IGA�IMF'NO X4 .,5gg C003 TOIL•OD DevELa.MENT PUBLIC HEARING IR cal a NfN EGUNTroNs OF TXE TOW N P 4494.+EB'S NOTICE "' rawer cowry w.e a CaaN+ h Gr JUPITE AT'C o..v Na lnm k1Nlanx p..- • EoOIOOE0TKu11I. rant if..Ervin,N .Nd nNH .ie MIN.no.a _amllx41 n1CRIt.3, uoN i the Board of County Commissionersinnt of code River County,RIN '.aM;N>`w,m. Prw,NA ha iia..:.FL3me fwB""1p GIF" HMI T Eci0,000a, Rask.WB coiV der recommending the.800000 o a Courtly w EM„le ll.rl.. ROHi�ITiO ullsr o1VIHON i ry.,110.5 P.0011Ns,para.. PP'e-.t DISTRICT,SECTION in, Ordnance amending are Fare Lord Use Map designation :°..,.oW..400 by.moa •R.a1 For.1N... C 00 50ED VIEs:grvINONA n wSiew rnwn weN.wW °"m.Nf r -al,'Fi IR".,t,11„xAFL ton land wither BW unincorporated portions of Indian River ''''''''7L'::;'' Mr,,0011 r.,,,.n,,,I.l 1. iv. 110000 000 Ael "nIaPRa1A1.ITEDV30 SI0nnANi ,�Py''or'm lVwmNwm eepr a Cw0n mI0T•,Amnon AN, County16,.. 1 Dubs .0,9 t. which 00.1 g imerelt and �m:wiila'wM... �� PL�"DinMOCi�Ete[iiOM l0. tieiem shNl have an OppOHuNly IJ be head,w11 be lag On .. +• 1 110 sg10,I1ne S000u°My11.a CIRCmT eau.°P rm. EEq,101TCD°SEs'0“vHg r3. Tccr N°xiTicNTN ooIC1AL L*RILT',sfETloN rA1. Members er ainty dren:stram,In the Countyled M 1801 F Y'a,,Nn0 an 11:1. x vRR '0 00 neo uics DrvINON L 10001* of OR Dainty Adntlnlstratlon Build'mp baled at 1801 GON11L5t'0 00 <NR<nr10 f0a N01•w R '7Ds3Ti .0 10.0 e.M, n 1almR o wnr"-m MICw6Li:`I'tlecaR, perk IMO^I°ITINDRKYLEMLL 27th Street Vere Beach,Florida.TM prodreedordnante Is elNdotl: PornonOSIOr 4wi - T3.V AM0xOIG _Nava"n10•r I. mg 0 "."''''''''''''''''''"•G ;:'*:°°..."'"' w.e teteuleeecnon Fr Ml ORDINANCE OF INDIAN RIVER COUNTY.FLORIDA,AMENDING IOU "'""" •RESPONDE•+1LAuo.rnav Oa Aev°ei::Iui°I reonolNo 100E FUTURE tAND USE MAP OF THE CONWREHENSNE PIAN BY IIIP CondolTo mbome Root < a`....0 ml.a FOR Tx!rii;oP ALL nmrporlle w v.1 cans.OtVori +e ti.I couRlleF 1w DnDNAx<eslElN coufuttr LOCATEDO TNT LEND USE MAP DEBIGNATION FOR EN J CMOS teuel 0M0010, H DI<1LL “ LOCATED ON 101E FAST SIDE US H0IHWAY I BETWEEN JACKSON r"VIfit:rIONI/RWlae4 AN rd°ai.°`I:r1...N Mon 1001.100 i Fwl.eGIAw ..w&" E E<1:wE o•rF. STREET AND 182nd STREET FROM MEDIUM DENSITY M-11 TO °�>,NM COMMERCIAL INDUSTRIAL IGD,FUTURE 1ANO USE MAP ANO ' ;1 1C1.110.1 b`" moo Ei E FAR, PET marAlrirle.,1m PROVIDING CODIRCATION,SEVEIIABILI/Y,AND EFFECTIVE DATE. as fre „�.: pisJ•M xf LAuo ink TA fSo oENT a • � Mhl a�raN °TI EOF ACT p»rca.r x Twam a MPO Manor Anmm�weNN. MON. OF ACT IDN , and a0p opo en may De impeded by f t h 00IOO a1 the Pl00100 P.N.,PN rw+,o Hera 4 T 'e Im°N`r old Development Services Department of the County gdmini3fietion II 0,p,E NOTICE1001 NERRe0y GIVEN 040 SSOlOO 1 oilier R+.i' 010."�'N°°•°rs�""N'w F'°"°°' Bolding A.located al 1801 2701 Street,Vero Beach,Florida, `L °"P am°a:una41rbe Nwn Ave ext John... ; «.ea....,,0a'°:r w.ken 60(0000 the hallo N 8:70 Lm.and 5100 p.m.on weekdays Fon %%1111'1 K'h'awfT.eO Inc IN1wIm WAS w mN1 „ bxkewMr ME mf rN. .D. 1,D. NOTIFIED inns Casio J'ai,.,nam n mwe!nlomMt'Iwl,contact Cindy Thurman at(772)226-1243. mem... AEr.Nn'''''Wk Na or pan .W. iam'.ol s IDE SI I.W.1.0. `a 1...,Ilio, %ever i'Nor 10S""F° i i."v1ev Anyone who may cash to appeal 009 8300400 0161 mop be Castle _ FaM.bn mea erlM ggi m i"1.°,"k LN a!:.iL r-�,.,,.I�b,ween%%.seen N et this meeting will need to ensure that a verbatim retold al Pm Ame°`"wo Ng, aNmipnr s N A f 9.-9. T iba.d a.sun B made,which includes 00 Ie101RMy and evidence a 1 n ' Neo. r I`0.n FFN FF E a"<e o',a er em.X11 nae a DPOT hen eaimla»caii Aa+:Nry ie em 00"e .Renee nun <0SL a Mi Vp010Ali:h the 0Dpeal it bife0 'Neem° '%'"Pte w i.Ana.u•aI"N<pa;aroN,wr =,7,..,=,,,r",mraa`.0000. M nr 300 PM. L01Mmn 0 0 IM ,aJd ems F1",a+esu",r:,.lA°r<a�i-u',e'0Ai .nh in<�n rw,r.:77 viral Myons who reeds a special accommodation for Vs mean must alae« N. Fn. IMO AM Cha°n'C er got.TNnn w ml. 00000.° c001001 0 county's Americana with DseblfAes Act CoaNna;a at ar.E�N'.Cllrallm n-Naweaa.rr.w.ar4NIN. fJr.:... ';'0.787...."'"M«fin.. 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OAQ INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Board of County Commissioners THROUGH: John A. Titkanich, Jr.; County Administrator FROM: Ryan Sweeney; Interim Assistant Planning & Development Services Director DATE: October 10, 2023 SUBJECT: Consideration of a Land Development Regulation (LDR) Amendment for the Site Plan Review and Approval Procedures for Solar Facilities (LDRA-23-10-01 / 2022020086- 95412) It is requested that the data herein presented be given formal consideration by the Board of County Commissioners (BCC) at its regular meeting of October 31, 2023. BACKGROUND Lucido & Associates, on behalf of Florida Power and Light (FPL), submitted a formal amendment application to the County's land development regulations (LDRs) to amend the review and approval procedures for solar facilities located within the A-1, A-2, and A-3 zoning districts. As proposed, the amendment will allow solar facilities in the A-1, A-2, and A-3 zoning districts to be reviewed and approved via the minor site plan review process, which can be approved by the Planning & Development Services Director (i.e. staff level), and will no longer require PZC approval. Over the past several years, Planning Division staff has processed a total of six separate site plan applications for solar facilities located on agriculturally zoned parcels. Originally, the County's LDRs required solar facilities to be processed and approved via the special exception review process, which required two public hearings (one by the PZC, and a second by the BCC). In February 2022, the LDRs were amended to allow solar facilities as permitted uses in the A-1, A-2, and A-3 Zoning Districts, eliminating the special exception requirement. However, Section 914.06(1) still requires solar facilities to be processed as a major site plan. If the project's total new impervious area exceeds 150,000 square feet (SF), then the major site plan requires the PZC approval. The BCC shall now conduct a public hearing to consider the proposed LDR amendment, and adopt, adopt with modifications, or deny the proposed amendment. PLANNING AND ZONING COMMISSION (PZC) RECOMMENDATION: At its regular meeting of September 28, 2023, the PZC conducted a public hearing and considered the proposed LDR amendment. The PZC voted 6-0 to recommend that the BCC adopt the proposed LDR amendment. 328 ANALYSIS Pursuant to Section 911.06(4), solar facilities in the A-1, A-2, and A-3 zoning districts are classified as permitted uses. The regulations state that site plan review shall be required for the construction, alteration and use of all structures and buildings (except single-family dwellings and permitted agricultural uses) in these districts. However, under the current LDRs, a solar facility that exceeds 150,000 SF of new impervious area also requires PZC approval. The proposed amendment would create a new subsection "c." within Section 914.06(1)(a)4., and would allow solar facilities in the A-1, A-2, and A-3 zoning districts to be reviewed and approved via the minor site plan review process, regardless of new impervious area. If approved, the amendment would allow solar facilities in the A-1, A-2, and A-3 zoning districts to be approved by the Planning & Development Services Director (i.e. staff level). This amendment would not remove or nullify any other LDR requirements for site plan review and approval, or the requirements for meeting all applicable local, state, and/or federal building and construction requirements. It should be noted that staff did not receive any negative feedback during the review and approval process for the six currently approved solar facilities. Also, five of the six solar facilities are currently in operation, and staff has not received any negative feedback on the operation of those facilities. Planning staff supports the proposed amendment as requested by the applicant. RECOMMENDATION Staff recommends that the Board of County Commissioners adopt the proposed solar facilities amendment. ATTACHMENTS 1. Draft Ordinance 2 329 ORDINANCE 2023 - AN ORDINANCE OF INDIAN RIVER COUNTY, FLORIDA, AMENDING SECTION 914.06 (GENERAL THRESHOLDS AND PROCEDURES FOR SITE PLAN REVIEW AND APPROVAL) OF CHAPTER 914 (SITE PLAN REVIEW AND APPROVAL PROCEDURES), OF THE CODE OF INDIAN RIVER COUNTY; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR CODIFICATION; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA THAT THE INDIAN RIVER COUNTY LAND DEVELOPMENT REGULATIONS (LDRS) CHAPTER 914, SITE PLAN REVIEW AND APPROVAL PROCEDURES BE AMENDED AS FOLLOWS: SECTION #1: Amend LDR Section 914.06, as follows: Section 914.06. - General thresholds and procedures for site p review and approval. (1) Site plan thresholds. (a) Major site plans. The following projec all abnstitute ajor site plan projects and shall require, except as noted in paragraph 4 b ajor site plan approval. 1. Residential projects having t or dwelling units. 2. Nonresidential project pn f fi-VTthousand(5,000) square feet or more or new impervious surfa a or p ects comprised of new impervious surface area representing more ten t of the site/area of development, whichever is less. 3. Where t (3) o re�inor site plan requests or six (6) or more administrative approval re is for Ingle project area/site have been submitted and approved over any five- p d of time; where potential cumulative impacts exceed the criteria of a majo plan application or together may create a substantial impact, the director of the community development department may require any subsequent minor site plan or administrative approval application to be reviewed pursuant to the criteria of a major site plan. 4. The following major site plan projects shall require the same approval process required of minor site plan projects: a. Residential projects that constitute a permitted use and that propose less than twenty-five (25) residential units. b. Nonresidential projects involving less than one hundred fifty thousand (150,000) square feet of new impervious surface area, regardless of new building area amount. c. Solar facilities located in the A-1, A-2, and/or A-3 zoning districts regardless of new impervious area. Bold Underline: Additions to Ordinance Strike threugl� Deleted Text from Existing Ordinance F:\Community Development\CurDev\Ordmances\2023 Ordinances\2023-_ FPL Solar Facihties.docx 330 ORDINANCE 2023 - SECTION #2: SEVERABILITY If any clause, section or provision of this Ordinance shall be declared by a court of competent jurisdiction to be unconstitutional or invalid for any cause or reason, the same shall be eliminated from this Ordinance and the remaining portion of this Ordinance shall be in full force and effect and be as valid as if such invalid portion thereof had not been incorporated therein. SECTION #3: REPEAL OF CONFLICTING ORDINANCES The provisions of any other Indian River County ordinance that are inconsistent or in conflict with the provisions of this Ordinance are repealed to the extent of such inconsistency or conflict. SECTION #4: INCLUSION IN THE CODE OF LAWS AND ORDINANCES The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Indian River County, Florida. The sections of th rdinance may be renumbered or relettered to accomplish such, and the word 'ordinance" ma changed to "section", "article", or any other appropriate word. SECTION #5: EFFECTIVE DATE This Ordinance shall take effect upon filing wi the D ent of State. This ordinance was advertised in the Indian RI r urnal on the 15ffi day of October, 2023, for a public hearing to be held on the y ctober, 2023, at which time it was moved for adoption by Commissioner se ded by Commissioner and adopted by the following vote: VinnS I. Earman Susan Adams CommiAioner Joseph E. Flescher Commissioner Deryl Loar Commissioner Laura Moss The Chairman there upon declared the ordinance duly passed and adopted this day of , 2023. BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY BY: Joseph H. Earman, Chairman Bold Underline: Additions to Ordinance 2 S4ik td3reegir Deleted Text from Existing Ordinance F:\Co Ordinances\2023-_ FPL Solar Facilities.docx 331 ORDINANCE 2023 - ATTEST: Ryan L. Butler, Clerk of Court and Comptroller ILot", Deputy Clerk This ordinance was filed with the Department of State on the following date: APPROVED AS TO FORM AND LEGAL SUFFICIENCY William K. DeBraal, County Attorney APPROVED AS TO PLANNING MATTERS Andrew Sobczak; Planning and Development L*1 Bold Underline: Additions to Ordinance exgl� Deleted Text from Existing Ordinance F:\CommunityDevelopment\CurDev\Ordinances\2023 Ordinances\2023-_ FPL Solar Facilities.docx 332 10/31/2023 Item 10.A.2. Land Development Regulation (LDR) Amendment for the Site Plan Review and Approval Procedures for Solar Facilities Board of County Commissioners October 31, 2023 LDR Amendment Process • Legislative in nature • Requires a public hearing by the PZC with a recommendation to the BCC • Final public hearing by the BCC PZC Recommendation • On September 28, 2023, the PZC recommended approval by a vote of 6-0 z 33Z - I 10/31/2023 Item 10.A.2. Background / Analysis • Applicant (FPL) submitted an LDR amendment application to amend the review and approval procedures for solar facilities located within the A-1, A-2, and A-3 zoning districts • Solar facilities originally required special exception approval; including 2 public hearings (first by the PZC, second by the BCC) In February 2022, and in conjunction with FPL and recent Florida statutory requirements, the BCC approved a staff -initiated LDR amendment that changed solar facilities to a permitted use. However, most solar facilities still required PZC approval due to their size (net impervious area exceeds 150,000 SF) Background / Analysis • The proposed LDR amendment will keep solar facilities as a major site plan, but they can be reviewed and approved via the minor site plan review and approval process • Minor site plans can be approved by the Planning & Development Services Director (i.e. staff level approval) • Solar facilities will still require a comprehensive site plan review and must meet all applicable LDR requirements • Staff supports the requested LDR amendment 332- 2 Staff Recommendation ➢ That the BCC adopt the proposed solar facilities LDR amendment io - 3 ( - �3 to. A-, z , LocaIiQ Florida PO Box 631244 Cincinnati,OH 45263-1244 GANNETT NOTICE OF PUBLIC HEARING PROOF OF PUBLICATION NOTICE IS HEREBY GIVEN that the Board of County Commissioners of Indian River County, Florida Indian River County Planning shall hold a Public hearing of which parties in interest and citizens shall Kathy Clearest have an opportunity to be heard, In the County Commission Chambers Indian River County Planning of the County Administration Build. inn located of 1501 27th Street,Vero l 801 27 Th Street Beach,Florida,on Tuesday,October 31,2023 at 9:00 AM to consider adap- Vero Beach FL 32960 tion of on ordinoncel entitled: AN ORDINANCE OF INDIAN RIVER COUNTY, FLORIDA, AMENDING SECTION 914.06 STATE OF WISCONSIN,COUNTY OF BROWN (GENERAL THRESHOLDS AND PROCEDURES FOR SITE PLAN REVIEW AND APPROVAL) OF CHAPTER 914 (SITE PLAN Before the undersigned authority personally appeared,who REVIEW AND APPROVAL PROCEDURES), OF THE CODE on oath says that he or she is the Legal Advertising OF INDIAN RIVER COUNTY; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING Representative of the Indian River Press Journal/St Lucie FOR CODIFICATION; AND PROVIDICGDIFI ANI EFFECTIVE FEC ND News Tribune/Stuart News,newspapers published in Indian DATE. River/St Lucie/Martin Counties, Florida;that the attached A vote will be taken on the proposed ordinance.If adopted,the ordinance copy of advertisement, being a Legal Ad in the matter of will amend the approval process for solar facilities located In the A-1,A-2 and for the A.]zoning districts,and Public Notices,was published on the publicly accessible shall require the some approval process required of minor site alas websites of Indian River/St Lucie/Martin Counties, Florida, protects(i.e,staff level approval). or in a newspaper print in the issues of,on: A draft of the proposed ordinance Is by available at the Indian River County Planning Division office located in the Community Development Deportment on the first floor of the 10/15/2023 County Administration Complex Building"A'.Anyone who may wish to appeal any decision,which mol' be mode at this meeting,will need Affiant further p com says that the website or newspaperlies to ensure toot a verbatim record of ythe proceedings Is mode, which with all legal requirements for publication in chapter 50, includes testimony and evidenceupon which the appeal is based. Florida Statutes. Please direct planning-reloted ques- tions to the Current Development Subscribed and sworn to before me,by the legal clerk,who Section at 772.226.1239. is personally known to me,on 10/15/2023 ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING MUST CONTACT THE COUNTY'S AMERICANS WITH —'��' yam.'"-. DISABILITIES ACT (ADA) COOR• DINATOR AT 772.226.1223 AT LEAST 4B HOURS IN ADVANCE —..- ,._............._. OF THE MEETING. Legal 'ark INDIAN RIVER COUNTY PLANNING AND ZONING r COMMISSION �`�,.,/ ; ..wRr_I •." BY •s• Joseph H. Earman, Choir- +otal Sate of ountvRown mon ye -yam•• `J ` < ,,. Pub:October 15,2023 C// ro,_,,,+/7 / .+� TCN9367464 My commision expires ✓ oL Publication Cost: $145.04 Order No: 9367464 #of Copies: Customer No: 1125971 1 PO#: THIS IS NOT AN INVOICE! Please do not use this form for po nten7 remittance. NANCY HEYRMAN Notary Public Wisconsin s,. State of Page 1 of 1 352 .4 r ,; ,* : .r. ',\_ _\_ \\„ ),, \ , __ ‘,,s\ 001,., ,i,,,.., 1,.,,4" "401..."::::,,,,,,:;" T .. b -,: v \\,v,t‘ , 0'"'";:7:..' fififi e (.._,:i __,,ii_j_L_T.....i,aria,trF, i 1.71% i Fr \_____..__ ,40 0 r • , 4OP -:-.- :4 4%41 Aii , i Ago , 4 N Mil AL„ - , . ----- -- - ...„, ,„:. , FPL Solar in IRC Will Sabayrac Lead Project Manager, Development Indian River County0 Florida Power & Light Company October 31 2023 FPL. 10/31/2023 Item 10.A.2. 3 32 • 5 FPL operates 66 universal solar energy centers lo ' Am ` - fl ) 11 different Florida counties AiravAmprAnrAmenrAmmor x 22 New Sites Under Construction: Terrill Creek,Clay County 11 •Silver Palm,Palm Beach County7� ,� —--=- — -- � Ibis,Brevard County 4dirt T ter r '��*�sew „ mamma Armor���_ Orchard,St Lucie/Indian River County AllE1�,-� 1, Beautyberry, Hendry County4 !-4 I I rd r4d I riliWAVarA >>� Turnpike, Indian River County PSI Monarch,Martin County ; i • WM Caloosahatchee, Hendry County Whitetail,Martin County % A...... • •Prairie Creek, DeSoto " ` Pineapple,Okaloosa County • Canoe, Putnam County Sparkleberry, Escambia County : , } . ,' Sambucus, Manatee County • •/. Fourmile Creek,Calhoun County f Creek,Santa Rosa CountyFPL represents • . • • Big Juniperee , Pecan Tree,Walton County r Wild Quail,Walton County Hawthorne Creek,DeSoto Nature Trail,Baker County ! � , -. f iIrc. z' rrutl,nrN Woodyard, Hendry County • "" /[•` Three Creeks,Manatee 10/31/2023 Item 10.A.2. 332 -� Indian Ri v'--r .. ounty has been a great supporter of solar and we are committed to continuing our positive relationship _-` FPL serves:„.,._---_,,,,,,,t-,,---t,.!),-rtr Fi , : `: .,, r,'� "i-,,,,,,,,,;,- --,F,„. .. ..„71. ,,/ t Currently operating „'' -.__. .f ., ,„__ L.,--:::„.„.-:,,;_„,, Fel Ismere (FPL Indian RiverSolar(Energy Cenfe N Estates`teess Vero Reach FPL Blue Cypress Solar Energy Center I: FPL Orange Blossom Solar Energy Center,- Indian River x FPL Grove Solar Energy Center ... Gifford FPL Turnpike Solar Energy Center (Jan. 2024) ,, - �,, FPL Orchard Solar Energy Center (Jan. 2024) Fort11411” Nthvc:Cyl.,ese Wildlife County's solar to be capable of rnana�e�tnc Mrer a ' c `, r Flontla Ridge !,!::":„. -__Fiorlt -TPk-North_ _°'. :, _ _ Inttlen River and Orchard mood ---C Park FPL provided 0 FPL:. 1 0/31/2023 Item 10.A.2. ,332 - -1 Solar facilities are low im • act K. • . IP 1111m. k f .'.,`, / - N ' �.: re -�,nPLe '+surae+,{� 0 "b'aN,it k §� 'r .: •••: P`H t, . '.,.. . µ¢•.x, x ,n.. ,v 9:. " :eye„ ft• i. ... +nom w. " - \ 1,--'''‘'illi&f.'•-•--;-_--:,,,-.:-• . - . ‘ ., -,;:.:4-k.-37.--._'..7W.,-,•-\.-Ik„-\;-„cAtz-N.,..- '`- -\1: T Z. t ft , _ k i vkte °e, q .. • • . ��� „\\ �,�.`` \\•---,--\---\\'''-'\\\- X1 �- ���'-� .. r w ; ... ' a. gym V 1 Y� ,'��� — `A 1� t _ - _ 1). / r \ ��� 4 \\ ���y l- +° �� ; 4 1 k 'IIPP ,» i .r -\ }: � "mak 1111,111111i111110111111 I -/ �L FPL: 33 Z r 10/31/2023 Item 10.A.2. Solar energy centers make great neighbors and preserve the agricultural chara:cte r of the area -:::,,Aiii-E.4:.;i„:• •• ',14.1'"5,12;;Itififi':::::',`..::::,':,7:','.,',',-.-1:::-:..-,.. ,-. :,;,';,.':2:;:iiik.7'1,-'s,;-.:.'''''' ' ,'.,VZ.....7i:-.. ''.."- :'-'4..,,,,,,';',' ,..,'. , FPL Solar Energy Center Characteristics --- - . --, CA Q ..,, Pose no concernfor water Zero emissions carbon 111°ri,. „ .. '' ' suppl b health or d nal risk I#00,00 011ii. noiseNolouodfetrhtehnaenigthhebaomthboloednit Clean additional ,W ....21.012117.SPAIL le 111111 ,. . ,,.. ,....., 11.11,011 , Nosy& L... Each center ir, ....,. .40.-- u740..., 7. 141Wite 11111111111111 MIN•IRS ,,, It.4t, ',,,,:.;,, powers 43,),,,,,,,,,,,,,, ...,....,.., ,,,., -,..„,,, Stewardship 00,1 Great Neight)ors /:,. ..:,...-.-' - NI ..... ...., .. ,....,_ Protect landwater. investrnetrt No lights at night,no increase to ,and wildlife Add to the county tax base traffic,panels sit low to the ground , ir, -,,..... - ..e.„ and are often visually buffered -_ 1' Equivalent .. , to taking ... , .. it* [FPL has]been accommodating from day one They v,'cre very inclusive with US as to , exactly what would be done. They listened to our concerns and addressed them 70;::,,,„1, , off the road , ,. ,4^• V ,--",...' ..,..' 1$11,.... .,4„,;,:, accordingly I was actually very impressed at the.speed of the project There is no 5P lit '''' 7 --,-,0- ,,,,•,., ..,„.... notse There is no added traffic because 0f,( It's very peaceful- /164:: .k,"::,,• ,,,,,.,.. Elizabeth Accommando,solar farm neighbor;Loxahatchee, FL .-- 10/31/2023 Item 10.A.2. . ""°,"...,,,,,„ • ,)!.'.,,:,,,','1:.J. ,.',PIA,'' , ' 1",,,*.`, gy', , . '','., '."."y,rt,-._ ''' ,_, ,,,%. '``.'... - �. f rr Y �/ ;//ree, / �iDl l /lo ._. <: x ///// °iii•Ks ill,/ ////% ///////f/ a�%%///// . :,45 w, , � .,,,,..„: ...,.. ,, . .. . .. ._ ,,.,,, y *t'i ,.,,.,1,1:,„.,', •/#2 " • s ti tll •: tey r /• jl / _f".•';:e ,;///e, , //���j///� ..•Yr . .. :L.... �' `"`" y1 % % ' % fir % % , .,c . ...7.,...t.,:.-c; ,...,,„, ,, ,:...,,,:„,: 4 � �a'���. '��i. '. ,1 ''l :'Y`y+f .....a'24. w..•,. j �/� % ,fphi.' t,r..!'•,z F, -• ..4.R1.: %/////�' %// //�////� �/ %ii/ . • %%///iii %/ ;� / _ f " • „iss'i.. 6. ' 41-/s ..4.....r/;^ . .Y /4.1„A''''',1%,4 41) frs . JP, .°io -• w5 ;t., ,°= Yr,r•. •`�:� J yL.1,"i.t • • �y '▪ ' 7.,,,..1,- "1 ' 1,?„..0lVk' /..4'^ ' i : 4 . , ►� rrM+�yi, .M v, ' ' � -'� .F14i"I',. J i" ,fr+4. . 4 .'4''''')1 a I Cy.r.;, Fx9' 4 / . � u,,s '.31 .os',,,i,..,,,.,'YM - 7... ' q• " ' • ' , 'n» +rRy,,`,,',, t :u l � ; rt �" � ys,� M4i; s�'o�4 � R �ty•�� y�ai �^ c � '+ w �' -4y asK , �� ' *' *',-64N, -‘6.—„it!".„,.c• ,- s ...`,• 10 1(,s • n tai rs "„I!'- °�- ,.. • FPLyFp 1i +f"' fgi+ M **` :? Y, x '. `p, t , ir".. . J � 's a ;^e'r' , .0 *f.,n :., * • �,, .s A--,:'s--4.,,,q./4-. -,. •4..,y� , i ,, ?�'2�: '. S .�i,^.ron ? + r. ,, •+.rkL' ha-• t,1 *v' " -.4-.,-,.:1.--.,,-, t :-. , ^., frR..lr `'- ••••, ...'i1y4*4 �,ycetRaJ , a ::` fi , <--- ,-,..,,,,,..,:-,,,,,,,,,,,t,!„,•, , . �ovyYk, ^ '`r Y � . -• � .. <mat .=�. ., -_,,,,,,4„, ii.„, '.u i^'kn :k,ear' 'P . ; f+ka, . ',.K '1 •± it ' '.15u:.4i...` 332 • " IC• 10/31/2023 Item 10.A.2. INDIAN RIVER COUNTY MEMORANDUM TO: Board of County Commissioners THROUGH: John Titkanich, Jr., ICMA-CM, AICP County Administrator PREPARED BY: Rebeca A. Guerra, AICP, LEED-AP, CPD Chief, Code Enforcement Division DATE: October 16, 2023 SUBJECT: Update Regarding On -Call and Weekend Hours for Code Enforcement Staff It is requested that the Board of County Commissioners (BCC) formally consider the following information at its regular meeting of October 31, 2023. BACKGROUND On June 20, 2023, the BCC discussed the establishment of expanded Code Enforcement services, including the addition of a Short -Term Vacation Rental (STVR) Officer. On September, 20, 2023, the Board approved the budget to include a new Code Enforcement Officer (STVR) position. That position has now been filled, and in order to address the BCC's desire for additional Code Enforcement services, the following new services will begin on November 3, 2023: 1. On-call Code Officer • One on-call Code Officer will be available Monday -Friday from 5PM to 9PM, and from 11 AM to 9PM Saturday and Sunday, excluding County -observed holidays. The phone number for the on-call Code Officer is (772) 290-1408. 2. Weekend hours There will be a full-time and part-time Code Officer available each Saturday during normal working hours. FUNDING Funding for the additional time incurred by the on-call Code Officer is available using funds from the MSTU / Code Enforcement / Overtime Account #00420724-011140. RECOMMENDATION This is an informational item only. 333 10/31/2023 Item 12.H.1. Planning & Development Services - Item 3.z.H.i. Y3 ® 1 10/31/2023 Item 12.1-1.1. 333-2 iz. INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Board of County Commissioners THROUGH: John A. Titkanich, Jr.; County Administrator FROM: Andrew Sobczak, Planning & Development Services Director DATE: October 19, 2023 SUBJECT: Stormwater Inspection Fees for Solar Facilities It is requested that the data herein presented be given formal consideration by the Board of County Commissioners (BCC) at its regular meeting of October 31, 2023. BACKGROUND In 2018, The Board of County Commissioners approved by resolution a schedule of inspection fees for multi -family and commercial development projects. The inspection fees are for site inspections completed by Public Works Department staff. Within the approved schedule, there is a $1,000 per - acre fee for commercial site plans that is applied to large commercial projects, including solar facilities. While solar facilities in the county were brand new at the time the fee schedule was approved, since that time, a total of six solar facilities have now been approved with additional facilities proposed. Earlier this year, Florida Power and Light (FPL) staff reached out to county staff asking for a second look at the $1,000 per acre inspection fee that was being applied to its solar facilities in the county. While solar facilities are generally large sites (100's of acres), the extent of formal site improvements within them, aside from the solar panels, is generally very limited. For this reason, county staff looked at several options for developing a more appropriate inspection fee category specific to solar facilities. ANALYSIS Most commercial and multi -family developments consist of 60% to 75% impervious area, with complex drainage systems and stormwater improvements. The $1,000 per acre commercial site plan inspection fee is appropriate for these types of projects because they often involve multiple inspections and detailed onsite review by Public Works staff. By comparison, solar facilities generally consist of 3% to 5% impervious area, and have significantly less complex drainage and stormwater systems. For that reason, they are much less demanding with regards to the time and resources needed for county staff to inspect them. C:\Granicus\Legistar5\L5\Temp\55cd447f-e3ca-4860-9e61-c82650a74d3f docx 1 334 To address this issue, county staff developed a special inspection category for solar facilities that includes a $1,000 per acre of impervious area fee. Based on discussions with FPL staff, and research on how other local jurisdictions assess inspection fees for solar facilities, the $1,000 per acre of impervious area fee is appropriate and proportional to the level of staff time involved in inspecting solar facility projects. Implementing the new category would reduce the inspection fee cost for the typical 400 -acre solar facility site from $400,000, to between $12,000 and $20,000. It is anticipated that this fee will adequately cover county costs, while not overcharging the applicant. RECOMMENDATION Staff recommends that the Board of County Commissioners adopt the proposed inspection fee for solar facilities and the associated fee resolution. ATTACHMENTS 1. Draft Fee Resolution C:\Granicus\Legistar5\L5\Temp\55 cd447f-e3ca4860-9e61-c82650a74d3f. docx 2 335 RESOLUTION 2023 - RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, ESTABLISHING A PUBLIC WORKS INSPECTION FEE FOR SOLAR FACILITIES. WHEREAS, the Board of County Commissioners has the authority to establish fees pursuant to Florida Statutes Chapter 125; and WHEREAS, a generic Public Works inspection fee was established for multi -family and commercial site plan projects in 2018 based on overall project size; and WHEREAS, a new Public Works inspection fee specifically for solar facilities based on impervious area is warranted. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA that the attached Public Works fee schedule (see Exhibit "A") is hereby adopted with an effective date of October 31, 2023. Exhibit "A" is hereby attached to and incorporated as part of this resolution. The foregoing resolution was offered by Commissioner who moved its adoption. The motion was seconded by Commissioner , and upon being put to a vote, the vote was as follows: Chairman Joseph H. Earman Vice Chairman Susan Adams Commissioner Joseph E. Flescher Commissioner Deryl Loar Commissioner Laura Moss The Chairman thereupon declared the resolution duly passed and adopted this day of , 2023. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA MM Joseph H. Earman, Chairman ATTEST: Ryan L. Butler, Clerk of Court and Comptroller BY: Deputy Clerk State of Florida County of Indian River 336 RESOLUTION 2023- I HEREBY CERTIFY that on this day, before me, an officer duly authorized in this State and County to take acknowledgments, personally appeared , and as Chairman of the Board of County Commissioners and Deputy Clerk, respectively, to me known to be the persons described in and who executed the foregoing instrument and they acknowledged before me that they executed the same. WITNESS my hand and official seal in the County and State last aforesaid this day of , 2023. Notary Public APPROVED AS TO LEGAL SUFFICIENCY 1!-11A William K. DeBraal, County Attorney APPROVED AS TO PLANNING MATTERS Andrew Sobczak, Planning & Development Services Director 337 EXHIBIT "A" FEE SCHEDULE BCC Approved: 10-31-2023 Effective Date: 10-31-2023 Public Works Application Fees FEE SCHEDULE CATEGORY FEE Stormwater Permit (Type A) $850.00 Stormwater Permit (Type B) $850.00 Stormwater Permit (Type C) $225.00 Single Family ROW & Drainage Review (Private) $180.00 Single Family ROW & Drainage Review / Permit (Public) $180.00 Utility Right -of -Way Permit $800.00 LDP Right -of -Way Permit $800.00 Commercial R/W Permit (includes turn lanes, culverts, sidewalks) $800.00 Commercial R/W Permit (no culverts, turn lanes, sidewalks) $300.00 Re -inspection Fee (each occurrence) After 2nd Re -inspection $400.00 Plan Review Fee (each occurrence) After 3rd Resubmittal $400.00 Inspection Fee Single -Family Subdivision $100.00 per lot Inspection Fee Major Site Plan Multi -Family Project $75.00 per unit Inspection Fee Major Site Plan Commercial Project $1,000.00 per project site acre Inspection Fee Commercial Subdivision $1,000.00 per project site acre Inspection Fee Solar Facility $1,000.00 per impervious acre Land Development Permit (LDP) — Subdivision Fees 0 - 5 Acres $2,000.00 5 — 20 Acres $2,900.00 20 — 40 Acres $3,900.00 Over 40 Acres $3,900.00 + $250.00 per additional 20 acres Land Development Permit (LDP) — Planned Development Fees 0 - 5 Acres $1,500.00 5 — 20 Acres $2,400.00 20 — 40 Acres $3,400.00 Over 40 Acres $3,400.00 + $250.00 per additional 20 acres Notes: 1. Inspection Fees for single-family subdivisions and commercial subdivisions will be due prior to issuance of a Certificate of Completion for each phase. For multi -family projects, commercial projects, and solar facilities, inspection fees are due prior to issuance of a site Certificate of Occupancy (C.O.) for the project (or project phase). 2. For major site plan commercial projects, commercial subdivisions, and solar facilities the inspection fee shall be applied to fractional acreage amounts. For example a 1.7 acre commercial project/commercial subdivision inspection fee would be calculated as 1.7 x $1,000 = $1,700. 338 _, � ,.. .. ��_._ _:� �a.,y„� ,� --�ir■ir -s,_ ,. .., � � �� �” � � I t. a ,..,. ....,K......y as .,. s . f.r...�. ...,.. .,.. .., ._:... ,. y.,w.„. �� «.. y d`�... _�p.«. a v.�..�H.� _ ....��.. �,�.. _,e.,e,,,y Hit SCHEDULE CATEGORY $tarn "ter Permh (type A) -- Sto BjSip� C . Drainage Revkw htM ) . . ........... i Drain Revkw/Fermk Public lermR -MOM es turn lanes wiverb, sldewalh Com 'ahem tum hoes, sldewaW .W A ebtvtrcnce Aker2mRe4nsp6Cftn $aW.W Plat mumnce After 3'e Resub - SJW.OD In Fami SubdM an $100.00 P., lot In - Site Plan Multi-Family Project -' '. $75.00perunit In She Plan CammemWPmjact $1,000.00 per project ske ave In mrcial Subdivision lOW.W a ect ske 1 Sala,F-iE S,WD.W sous