MOU with Talmudic University T r_661 j - icrn 2 x12 -2 71Qi
MEMORANDUM OF UNDERSTANDING BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA, AND
TALMUDIC UNIVERSITY REGARDING TALMUDIC UNIVERSITY'S
WINDSTORM PRE- DISASTER MITIGATION PROJECT
PURSUANT TO STATE CONTRACT NUMBER PDMC- PJ- 04 -FL- 2012 -014
This Memorandum of Understanding (the Agreement) is made and executed on this
day Gcy3_yA_ ` 2012 (Effective Date), between the City of Miami Beach, a municipal
corporation of the State of Florida whose address is 1700 Convention Center Drive, Miami
Beach, Florida 33139 (City), and Talmudic University, a Florida non -profit corporation with its
principal address at 4000 Alton Road, Miami Beach Florida; 33140 (University).
RECITALS
Whereas, the City, on behalf of the University, proposes to enter into Contract Number,
PDMC- PJ- 04 -FL- 2012 -014 ( "State Contract ") with the State of Florida, Division of Emergency
Management (DEM), which is attached and incorporated as Exhibit "1" hereto; and
Whereas, the State Contract requires the completion of FEMA Project No.: PDMC -PJ-
04-FL- 2012 -014, which scope of work is more specifically described in Attachment "A1" to the
State Contract (said Scope of Work may also be collectively referred to herein_ as the "Project ");
and
Whereas, at its regular meetings of November 5, 2008 and June 6, 2012 the Mayor and
City Commission approved Resolution No. 2008 -26928 and Resolution No. 2012 -27908
(attached and incorporated as Exhibit "2" hereto), which authorized the City to enter into the
State Contract on behalf of the University, subject further to the terms and conditions of this
Agreement; and
Whereas, the University will be undertaking the scope of work under the State Contract,
subject to the terms and conditions of said Contract, and subject further to this Agreement; and
Whereas, the University acknowledges and agrees that, but for the fact that the University
needs to prosecute and complete the aforestated scope of work for the betterment of its facility,
and but for the fact that the City, and not the University, is an eligible party that can enter into
the State Contract on behalf of the University, the City would not otherwise be entering into said
Contract; and
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Whereas, accordingly, the City and University wish to enter into this Agreement for the
express purpose of the University indemnifying, holding harmless, and otherwise assuming, on
behalf of the City, any liability that the City may have as a result of the University's failure to
prosecute and complete any work required under the State Contract, or as a result of the
University's failure to comply, on behalf of the City, with any term or condition of the State
Contract, as if the University itself were a party thereto (instead of the City).
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NOW THEREFORE, in consideration of the conditions and covenants hereinafter contained, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1 Recitals. The foregoing recitals are hereby acknowledged as true and correct, and are
incorporated herein by reference.
2 Purpose. The purpose of this Agreement is to ensure the University's compliance with
all requirements under the State Contract, and to ensure that the University, and not the City, shall
be the ultimate party responsible for complying with the terms and conditions of the State
Contract. Accordingly, the University hereby agrees to be fully responsible and liable for any act
or omission under the State Contract, as if the University — and not the City — were a party
thereto..
3 University's Obligations.
a) The University shall be solely responsible for, and shall assume all cost, work, and
liabilities associated in any way with, or pertaining to, the Scope of Work contemplated under
the State Contract (as such Scope of Work is referenced in Attachment "Al" to the State
Contract). Notwithstanding the preceding, and without limitation, the University shall also
assume, and be solely responsible for complying with, any and all other requirements and /or
obligations of the City under the State Contract. Accordingly, the University herein agrees, and
warrants and represents to the City, that it shall be bound by the terms of the State Contract as if
it were a party thereto (instead of the City), and that it shall at all times comply with all terms,
conditions, and any other requirements, duties, and /or obligations imposed upon the City under
the State Contract, so as to at all times maintain the City in good standing and free from default
under said Contract.
b) The University agrees to be bound by all applicable State and federal laws and
regulations.
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C ) The University agrees, at its sole cost and expense, to transmit any necessary reporting
documents to the City, as same may be required by the City in order to comply with any
reporting and or other requirements under the State Contract, within five (5) business days prior
to an y reporting (or other) deadlines. The University shall document, in quarterly reports and a
close -out report, its progress in performing and completing the Scope of Work (and any other
required milestones) under the State Contract. 'The University shall retain sufficient records for
an audit.
d) The University shall provide a written statement as to whether it is a minority vendor,
as defined in Section 288.703, Fla. Statutes - and as required under the State contract.
e) The University shall provide the Certification Regarding Debarment, Suspension and
Ineligibility and Voluntary Exclusion Form, as required under the State Contract.
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f) The University shall comply with the requirements of the Budget and Scope of Work
(as described in Attachment "Al" to the State Contract) regarding the requirement of matching
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funds. The University acknowledges that the Project contemplated under the Scope 'of Work
requires a non- federal match, in the amount of $235,608.41, and agrees to contribute the required
non- federal match, in the amount of $235,608.41, to this Project. The University further
acknowledges and agrees that this non - federal match ( "Local Share ") will not be reimbursed.
g) The University shall transmit to the City, within five (5) business days prior to the
deadlines in the State Contract,. and with such supporting documentation, and in such manner as
may be reasonably requested by the City, in its reasonable discretion and judgment, the required
Request for Reimbursements ( "RFR's "), which include proof of the University's payment of
Project expenses, in the amount of $942,433.53 (which amount includes the State Contract
funds, in an amount not to exceed $706,825.12, and the University's required Local Share, in the
amount of $235,608.41).
h). The University acknowledges that the City will receive reimbursement funding
pursuant to the State Contract, through a FEMA Pre - Disaster Mitigation Program. The City
agrees to : submit the RFR's to the State of Florida and, if approved by the State, to accept
payment from the State on behalf of the University, in an amount determined by the State but not
to exceed $706,825.12. Notwithstanding the preceding, or any other term.or condition of this
Memorandum of Understanding or the State Contract, the City shall have no liability to the
University or to third parties (including, without limitation, any contractors or subcontractors
retained by the University to prosecute the Scope of Work), for any costs or payments as a result
of any RFR'S which are not approved and /or disallowed by the State.
i) Notwithstanding subsection (h) above, if DEM, upon subsequent review or audit, finds
any disallowed and /or unapproved costs of the Project, which will not be reimbursed, or if funds -
for the Project are not received from the State, then the University shall immediately reimburse to
the City any and all such disallowed and /or unapproved costs previously provided by the City.
j) The University shall own, maintain and repair the scope "of work (such scope of work
as described in Attachment "Al" to the State Contract) and shall follow procurement procedures
approved by the State DEM.
4 Indemnification.
The University shall fully indemnify and hold the City and its respective officers, employees,
agents, contractors, instrumentalities, and assigns, harmless from any and all liability, losses or
damages, including attorneys'. fees and costs of defense, which the University, and /or its
- respective officers, employees, agents, contractors, instrumentalities and assigns, may incur as a
result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising .
out of, relating to, or resulting from the State Contract and /or this Agreement. The University
shall hold the. State of Florida, Division of Emergency Management harmless against all claims
of whatever nature arising out of the performance of work under the Scope of Work and this
Agreement, to the extent allowed and required by law.
Further, the University agrees and acknowledges that, but for the University's need to prosecute
and complete the - Scope of Work contemplated under the State Contract for the continued
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maintenance, preservation and improvement of the its facility, and but for the City being the only
eligible party that can enter into the State Contract, that the City would not otherwise be entering
into the State Contract, and is doing so for the sole and express purpose of assisting the
University and for the University's sole benefit.
Accordingly, and in addition to (and without limiting) the indemnification provision in the
preceding paragraph, the University shall fully indemnify, defend and hold harmless the City of
Miami Beach, and its officials, - employees, agents, contractors, successors and assigns (the "City
Indemnitees "), from and against all liabilities, obligations, losses, damages, penalties, claims,
actions, costs, charges, subrogations, and expenses (including, without limitation, reasonable
legal and other professional fees and expenses) which may be imposed upon, or incurred by, or
asserted against the'City Indemnitees (collectively, the "Damages "), or any of them, by reason of
actual or alleged (1) injury or death to persons (including, without limitation, one or more of the
City Indemnitees or of the University and/or its officers, directors, employees, contractors,
agents, successors or assigns, or of any other third parties); or (2) damage to the property of any
person or legal entity (including, without limitation, the property of one or more of the City
Indemnitees, or of the University and /or its officers, directors, employees, contractors, agents,
successors or assigns, or of any,other third parties); and /or (3) any monetary losses which may be
sustained by any of the City Indemnitees; all, as referenced in the aforestated subsections,
subsections (1) — (3), as a direct or proximate cause, ,resulting from, or arising from any act or
omission, and /or any work, services, and /or other obligations performed and /or otherwise
provided and /or improved by virtue of the University's agreement herein to perform and /or
provide any and all of the City's obligations as a party to the State Contract. Notwithstanding
the specific language of this paragraph, nothing in this paragraph shall in any way serve as an
indemnification, duty to defend or hold harmless by the University against any gross negligence
or willful misconduct by any of the City Indemnitees.
Notwithstanding anything contained in this Agreement, any and each of the University's
obligations to' indemnify, defend or hold harmless the City or the City Indemnitees shall be
subject to the City's obligation to act in good faith regarding the State contract and the Project.
The provisions of this Section 4 shall survive termination or expiration of this Agreement, and of
the State Contract.
5 Severability
In the event any paragraph, clause, or sentence of this Agreement or any future amendment is
declared invalid by a court of, competent jurisdiction, such paragraph, clause or sentence shall be
stricken.from the subject Agreement and the balance of the Agreement shall not be affected by the
deletion, provided to do so would not render interpretation of the Agreement provisions
ambiguous or a nullity.
6 Notice
Any notices to be given hereunder shall be in writing and shall be deemed to have been given if
sent by hand delivery or recognized overnight courier (such as Federal Express), or if by certified
U.S. mail, with return receipt requested, addressed to the party for whom it is intended, at .the
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place specified. For the present, the parties designate the following as the respective places for
notice purposes, which includes electronic mail address'as indicated for copies of notices given.
If to the University: Rabbi Yitzchak Zweig, President
Talmudic University
4000 Alton Road
Miami Beach, Florida 33140
If to the City: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
7. Compliance with Federal, State, and Local Law
All parties hereby agree that they shall comply with all applicable Federal, State, Miami -Dade,
and City laws, ordinances and codes, including the Americans with Disabilities Act, as they
apply to this Agreement.
8. Entire Agreement
This Agreement and its Exhibits represent the entire agreement between the parties. It is further
understood, and agreed to and acknowledged by University, that — notwithstanding and Event of
Default under the State Contract which, if incurred, results in termination of such contract, the
University's liability to the City, and to the City Indemnitees; and to any other third parties shall
not in any way be limited or affected by same.
IN WITNESS WHEREOF, the City and University have caused this Agreement to be executed
by their respective and duly authorized officers the day and year indicated above.
CITY: UNIVERSITY:
CITY OF MIAMI BEACH TALMUDIC UNIVERSITY
B B
Y• . Y
ATTEST:. AT
By: / By
KGB /JMH
APPROVED AS TO
INCORP ORATED' FORM & LANGUAGE
&- FOR EXECUTION
Cit orne Date
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Exhibit "1"
State Contract
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Exhibit "2"
City of Miami Beach Resolutions
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- DRAFT -
Exhibit "2"
Contract Number:
CFDA Number:97.047
FEMA No.:
FEDERALLY FUNDED SUBGRANT AGREEMENT
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, the City of Miami
Beach(hereinafter referred to as the "Recipient").
THIS AGREEMENT IS ENTERED INTO BASED ON THE FOLLOWING REPRESENTATIONS:
A. The Recipient represents that it is fully qualified and eligible to receive these grant funds to
provide the services identified herein; and
B. The Division has received these grant funds from the Federal Emergency Management
Agency, and has the authority to subgrant these funds to the Recipient upon the terms and conditions
below; and
C. The Division has statutory authority to disburse the funds under this Agreement.
THEREFORE, the Division and the Recipient agree to the following:
(1) SCOPE OF WORK
The Recipient shall perform the work in accordance with the Budget and Scope of Work,
Attachment A-2 of this Agreement.
(2) INCORPORATION OF LAWS, RULES, REGULATIONS AND POLICIES
The Recipient and the Division shall be governed by applicable State and Federal laws,
rules and regulations, including those identified in Attachment B.
(3) PERIOD OF AGREEMENT
This Agreement shall begin upon execution and shall end unless
terminated earlier in accordance with the provisions of Paragraph (12)of this Agreement.
(4) MODIFICATION OF CONTRACT
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.
(5) RECORDKEEPING
(a) As applicable, Recipient's performance under this Agreement shall be subject to the
federal OMB Circulars:
States, local governments, and Indian Tribes follow:
• A-87 for Cost Principles, Relocated to 2 CFR, Part 225
• A-102 for Administrative Requirements, and
• A-133 for Audit Requirements
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Educational Institutions(even if part of a State or Local government)follow:
• A-21 for Cost Principles, Relocated to 2 CFR, Part 220
• A-110 for Administrative Requirements, Relocated to 2 CFR, Part 215, and
• A-133 for Audit Requirements
Non-Profit Organizations follow:
• A-122 for Cost Principles, Relocated to 2 CFR , Part 230 (362k)
• A-110 for Administrative Requirements, Relocated to 2 CFR, Part 215, and
• A-133 for Audit Requirements
If this Agreement is made with a commercial (for-profit)organization on a cost-reimbursement basis, the
Recipient shall be subject to Federal Acquisition Regulations 31.2 and 931.2.
(b) The Recipient shall retain sufficient records to show its compliance with the terms of
this Agreement,and the compliance of all subcontractors or consultants paid from funds under this
Agreement, for a period of five years from the date the audit report is issued, and shall allow the Division
or its designee, the State Chief Financial Officer or the State Auditor General access to the records upon
request. The Recipient shall ensure that audit working papers are available to them upon request for a
period of five years from the date the audit report is issued, unless extended in writing by the Division.
The five year period may be extended for the following exceptions:
1. If any litigation, claim or audit is started before the five year period expires,
and extends beyond the five year period, the records shall be retained until all litigation, claims or audit
findings involving the records have been resolved.
2. Records for the disposition of non-expendable personal property valued at
$5,000 or more at the time it is acquired shall be retained for five years after final disposition.
3. Records relating to real property acquired shall be retained for five years after
the closing on the transfer of title.
(c) The Recipient shall maintain all records for the Recipient and for all subcontractors or
consultants to be paid from funds provided under this Agreement, including documentation of all program
costs, in a form sufficient to determine compliance with the requirements and objectives of the Budget
and Scope of Work-Attachment A-and all other applicable laws and regulations.
(d) The Recipient, its employees or agents, including all subcontractors or consultants to
be paid from funds provided under this Agreement, shall allow access to its records at reasonable times
to the Division, its employees, and agents. 'Reasonable"shall ordinarily mean during normal business
hours of 8:00 a.m. to 5:00 p.m., local time, on Monday through Friday. "Agents"shall include, but not be
limited to, auditors retained by the Division.
(6) AUDIT REQUIREMENTS
(a) The Recipient agrees to maintain financial procedures and support documents, in
accordance with generally accepted accounting principles, to account for the receipt and expenditure of
funds under this Agreement.
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(b) These records shall be available at reasonable times for inspection, review, or audit
by state personnel and other personnel authorized by the Department or the Division. 'Reasonable"shall
ordinarily mean normal business hours of 8:00 a.m. to 5:00 p.m., local time, Monday through Friday.
(c) The Recipient shall provide the Department with the records, reports or financial
statements upon request for the purposes of auditing and monitoring the funds awarded under this
Agreement.
(d) If the Recipient is a State or local government or a non-profit organization as defined
in OMB Circular A-133, as revised, and in the event that the Recipient expends $500,000 or more in
Federal awards in its fiscal year, the Recipient must have a single or program-specific audit conducted in
accordance with the provisions of OMB Circular A-133, as revised. EXHIBIT 1 to this Agreement shows
the Federal resources awarded through the Division by this Agreement. In determining the Federal
awards expended in its fiscal year, the Recipient shall consider all sources of Federal awards, including
Federal resources received from the Division. The determination of amounts of Federal awards
expended should be in accordance with the guidelines established by OMB Circular A-133, as revised.
An audit of the Recipient conducted by the Auditor General in accordance with the provisions of OMB
Circular A-133, as revised, will meet the requirements of this paragraph.
In connection with the audit requirements addressed in this Paragraph 6(d)above, the
Recipient shall fulfill the requirements for auditee responsibilities as provided in Subpart C of OMB
Circular A-133, as revised.
If the Recipient expends less than $500,000 in Federal awards in its fiscal year, an audit
conducted in accordance with the provisions of OMB Circular A-133, as revised, is not required. In the
event that the Recipient expends less than $500,000 in Federal awards in its fiscal year and chooses to
have an audit conducted in accordance with the provisions of OMB Circular A-133, as revised,the cost of
the audit must be paid from non-Federal funds.
(e) Send copies of reporting packages for audits conducted in accordance with OMB
Circular A-133, as revised, and required by subparagraph (d)..above,.when required by Section .320(d),
OMB Circular A-133, as revised, by or on behalf of the Recipient to:
The Division at each of the following addresses:
Department of Community Affairs
Office of Audit Services
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
[also send an electronic copy to aurilla.parrish0dca.state.fl.usl
and
Division of Emergency Management
Bureau of Mitigation
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Send the Single Audit reporting package and Form SF-SAC to the Federal Audit Clearinghouse by
submission online at:
http://harvester.census.gov/fac/collect/ddeindex.html
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And to any other Federal agencies and pass-through entities in accordance with Sections .320(e)and(f),
OMB Circular A-133, as revised.
(f) Pursuant to Section .320(f), OMB Circular A-133, as revised, the Recipient shall send
a copy of the reporting package described in Section .320(c), OMB Circular A-133, as revised, and any
management letter issued by the auditor,to the Division at the following addresses:
Department of Community Affairs
Office of Audit Services
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
(also send an electronic copy to aurilla.aarrish(&-dca.state.fl.usl
and
Division of Emergency Management
Bureau of Mitigation
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
(g) By the date due, send any reports, management letter, or other information required
to be submitted to the Division pursuant to this Agreement in accordance with OMB Circular A-133,
Florida Statutes, and Chapters 10.550(local governmental entities)or 10.650(nonprofit and for-profit
organizations), Rules of the Auditor General, as applicable.
(h) Recipients should state the date that the reporting package was delivered to the
Recipient when submitting financial reporting packages to the Division for audits done in accordance with
OMB Circular A-133 or Chapters 10.550(local governmental entities)or 10.650(nonprofit and for-profit
organizations), Rules of the Auditor General,
(i) If the audit shows that all or any portion of the funds disbursed were not spent in
accordance with the conditions of this Agreement, the 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 days after the Division has notified the Recipient of such non-compliance.
0) The Recipient shall have all audits completed by an independent certified public
accountant(IPA), either a certified public accountant or a public accountant licensed under Chapter 473,
Fla. Stat. The IPA shall state that the audit complied with the applicable provisions noted above. The
audit must be received by the Division no later than nine months from the end of the Recipient's fiscal
year.
(7) REPORTS
(a) The Recipient shall provide the Division with quarterly reports and a close-out report.
These reports shall include the current status and progress by the Recipient and all sub recipients and
subcontractors in completing the work described in the 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 15 days after the end of each
quarter of the program year and shall be sent each quarter until submission of the administrative close-
out report. The ending dates for each quarter of the program year are March 31, June 30, September 30
and December 31.
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(c) The close-out report is due 60 days after termination of this Agreement or 60 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, the Division may withhold further payments until they are completed or
may take other action as stated in Paragraph (11) REMEDIES. "Acceptable to the Division"means that
the work product was completed in accordance with the Budget and Scope of Work.
(e) The Recipient shall provide additional program updates or information that may be
required by the Division.
(f) The Recipient shall provide additional reports and information identified in
Attachment F.
(8) MONITORING
The 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 A to this Agreement, and reported in the quarterly report.
In addition to reviews of audits conducted in accordance with paragraph (6)above,
monitoring procedures may include, but not be limited to, on-site visits by Division staff, limited scope
audits, and/or other procedures. The Recipient agrees to comply and cooperate with any monitoring
procedures/processes deemed appropriate by the Division. In the event that the Division or the
Department determines that a limited scope audit of the Recipient is appropriate, the Recipient agrees to
comply with any additional instructions provided by the Division or the Department to the Recipient
regarding such audit. The Recipient further agrees to comply and cooperate with any inspections,
reviews, investigations or audits deemed necessary by the Florida Chief Financial Officer or Auditor
General. In addition, the Division will monitor the performance and financial management by the
Recipient throughout the contract term to ensure timely completion of all tasks.
(9) LIABILITY
(a) Unless the Recipient is a State agency or subdivision, as defined in Section 768.28,
Fla. Stat., the Recipient is solely responsible to parties it deals with in carrying out the terms of this
Agreement, and 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, the Recipient
agrees that it is not an employee or agent of the Division, but is an independent contractor.
(b) Any Recipient which is a state agency or subdivision, as defined in Section 768.28,
Fla. Stat., agrees to be fully responsible for its negligent or tortuous acts or omissions which result in
claims or suits against the Division, and agrees to be liable for any damages proximately caused by the
acts or omissions to the extent set forth in Section 768.28, Fla. Stat. Nothing herein is intended to serve
as a waiver of sovereign immunity by any Recipient to which sovereign immunity applies. Nothing herein
shall be construed as consent by a state agency or subdivision of the State of Florida to be sued by third
parties in any matter arising out of any contract.
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(10) 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, if the Division elects, terminate and the Division has the
option to exercise any of its remedies set forth in paragraph (11). 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:
(a) If any warranty or representation made by the Recipient in this Agreement or any
previous agreement with the Division is or becomes false or misleading in any respect, or if the 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) If material adverse changes occur in the financial condition of the Recipient at any
time during the term of this Agreement and the Recipient fails to cure this adverse change within thirty
days from the date written notice is sent by the Division.
(c) If any reports required by this Agreement have not been submitted to the Division or
have been submitted with incorrect, incomplete or insufficient information;
(d) If the Recipient has failed to perform and complete on time any of its obligations
under this Agreement.
(11) REMEDIES
If an Event of Default occurs, then the Division may, after thirty calendar days written
notice to the Recipient and upon the Recipient's failure to cure within those thirty days, exercise any one
or more of the following remedies, either concurrently or consecutively:
(a) Terminate this Agreement, provided that the Recipient is given at least thirty 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(13)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 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:
1. Request additional information from the Recipient to determine the reasons
for or the extent of non-compliance or lack of performance;
2. Issue a written warning to advise that more serious measures may be taken if
the situation is not corrected;
3. Advise the Recipient to suspend, discontinue or refrain from incurring costs
for any activities in question or
4. Require the Recipient to reimburse the Division for the amount of costs
incurred for any items determined to be ineligible.
(f) Exercise any other rights or remedies which may be available under law;
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(g) Pursuing any of the above remedies will 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 Recipient, it will 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 Recipient.
(12) TERMINATION
(a) The Division may terminate this Agreement for cause after thirty days 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 Recipient to permit public access to any document, paper,
letter, or other material subject to disclosure under Chapter 119, Fla. Stat., as amended.
(b)The 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 Recipient with thirty calendar days prior written notice.
(c) The parties may agree to terminate this Agreement for their mutual convenience
through a written amendment of this Agreement. The amendment will state the effective date of the
termination and the procedures for proper closeout of the Agreement.
(d) In the event that this Agreement is terminated, the Recipient will not incur new
obligations for the terminated portion of the Agreement after the Recipient has received the notification of
termination. The Recipient will cancel as many outstanding obligations as possible. Costs incurred after
receipt of the termination notice will be disallowed. The Recipient shall not be relieved of liability to the
Division because of any breach of Agreement by the Recipient. The Division may, to the extent
authorized by law, withhold payments to the Recipient for the purpose of set-off until the exact amount of
damages due the Division from the Recipient is determined.
(13) NOTICE AND CONTACT
(a) All notices provided under or pursuant to this Agreement shall be in writing, either by
hand delivery, or first class, certified mail, return receipt requested, to the representative named below, at
the address below, and this notification attached to the original of this Agreement.
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(b) The name and address of the Division project manager for this Agreement is:
Project Manager Name: Mr. Quinton Williams, Planner
Bureau Name: Bureau of Mitigation
Division Name: Division of Emergency Management
Address: 2555 Shumard Oak Boulevard
City, State, Zip Tallahassee, Florida 32399
Telephone Number: 850-487-7584
Fax Number: 850-413-9857
Email Address: auinton.williams(cDem.mvflorida.com
(c) The name and address of the Representative of the Recipient responsible for the
administration of this Agreement is:
CONTACT NAME:
RECIPIENT NAME: City of Miami Beach
ADDRESS: 1700 Convention Center Drive
CITY, STATE, ZIP Miami Beach, Florida 33139-18191
Telephone: 305-673-7510
Fax: 786-394-4675
Email:
(d) In the event that different representatives or addresses are designated by either party
after execution of this Agreement, notice of the name, title and address of the new representative will be
provided as outlined in(13)(a)above.
(14) SUBCONTRACTS
If the Recipient subcontracts any of the work required under this Agreement, a copy of the
fully executed subcontract must be forwarded to the Division within ten days of execution for review and
approval. The 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 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. The Recipient shall document in the quarterly report the
subcontractor's progress in performing its work under this Agreement.
For each subcontract, the Recipient shall provide a written statement to the Division as to
whether that subcontractor is a minority vendor, as defined in Section 288.703, Fla. Stat.
(15) TERMS AND CONDITIONS
This Agreement contains all the terms and conditions agreed upon by the parties.
(16) ATTACHMENTS
(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:
Exhibit 1 -Funding Sources
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Attachment A—Budget and Scope of Work
Attachment B— Program Statutes and Regulations
Attachment C— Statement of Assurances
Attachment D— Request for Reimbursement
Attachment E— Justification of Advance
Attachment F— Quarterly Report Form
Attachment G—Warranties and Representations
Attachment H—Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion
(17) FUNDING/CONSIDERATION
(a) This is a cost-reimbursement Agreement. The Recipient shall be reimbursed for
costs incurred in the satisfactory performance of work hereunder in an amount not to exceed $750,000.00
subject to the availability of funds. All requests for reimbursement of administrative costs must be
accompanied by the back-up documentation evidencing all such administrative costs.
(b) Any advance payment under this Agreement is subject to Section 216.181(16),
Fla.Stat., and is contingent upon the Recipient's acceptance of the rights of the Division under Paragraph
(12)(b)of this Agreement. The amount which maybe advanced may not exceed the expected cash
needs of the Recipient within the first three(3)months of the contract term. For a federally funded
contract, any advance payment is also subject to federal OMB Circulars A-87,A-110, A-122 and the Cash
Management Improvement Act of 1990. If an advance payment is requested,the budget data on which
the request is based and a justification statement shall be submitted to the Division Contact in
accordance with Attachment E. Attachment E will specify the amount of advance payment needed and
provide an explanation of the necessity for and proposed use of these funds.
(c) After the initial advance, if any, payment shall be made on a reimbursement basis as
needed. The Recipient agrees to expend funds in accordance with the Budget and Scope of Work,
Attachment A of this Agreement.
(d) Request for Reimbursement should be submitted at least quarterly and should
include the supporting documentation for all costs of the project submitted on the Request for
Reimbursement. The supporting documentation must comply with the documentation requirements of
applicable OMB Circular Cost Principles. Attachment D must be completed and signed by an authorized
representative of the recipient. Any Requests for Reimbursement that fail to include Attachment D with
the supporting documentation may be returned or delayed in processing. The final invoice shall be
submitted within 60 days after the expiration date of the agreement.
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(19)(h)of this Agreement, all obligations on the part of the Division to
make any further payment of funds shall terminate, and the Recipient shall submit its closeout report
within thirty days of receiving notice from the Division.
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(18) REPAYMENTS
All refunds or repayments due to the Division under this Agreement are to be made
payable to the order of"Department of Community Affairs,"and mailed directly to the Division's Contact
listed above.
In accordance with Section 215.34(2), Fla. Stat., if a check or other draft is returned to the
Division for collection, the 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.
(19) 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 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 days written notice to the Recipient, cause the termination of this Agreement and
the release of the Division from all its obligations to the Recipient.
(b) This Agreement shall be construed under the laws of the State of Florida, and venue
for any actions arising out of this Agreement shall be in the Circuit Court of Leon County. If any provision
of this Agreement is in conflict with any applicable statute or rule, or is unenforceable, then the provision
shall be null and void to the extent of the conflict, and shall be severable, but shall not invalidate any other
provision of this Agreement.
(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 Agreement may be executed in any number of counterparts,any one of which
may be taken as an original.
(e) The Recipient agrees to comply with the Americans With Disabilities Act(Public Law
101-336, 42 U.S.C. Section 12101 et seg.), 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.
(f) Those who have been placed on the convicted vendor list following a conviction for a
public entity crime or on the discriminatory vendor list may not submit a bid on a contract to provide any
goods or services to a public entity, may not submit a bid on a contract with a public entity for the
construction or repair of a public building or public work, may not submit bids on leases of real property to
a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or
consultant under a contract with a public entity, and may not transact business with any public entity in
excess of$25,000.00 for a period of 36 months from the date of being placed on the convicted vendor list
or on the discriminatory vendor list.
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(g) Any 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:
1. Are not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from covered transactions by a federal department or agency;
2. Have not, within a five-year period preceding this proposal been convicted of or
had a 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;
3. Are not presently indicted or otherwise criminally or civilly charged by a
governmental entity(federal, state or local)with commission of any offenses enumerated in paragraph
19(g)2. of this certification; and
4. Have not within a five-year period preceding this Agreement had one or more
public transactions(federal, state or local)terminated for cause or default.
If the Recipient is unable to certify to any of the statements in this certification,then the
Recipient shall attach an explanation to this Agreement.
In addition,the Recipient shall send to the Division (by email or by facsimile
transmission)the completed "Certification Regarding Debarment, Suspension, Ineligibility And
Voluntary Exclusion" (Attachment H)for each intended subcontractor which the Recipient plans
to fund under this Agreement. The form must be received by the Division before the Recipient
enters into a contract with any subcontractor.
(h) The State of Florida's performance and obligation to pay under this Agreement is
contingent upon an annual appropriation by the Legislature, and subject to any modification in
accordance with Chapter 216, Fla. Stat. or the Florida Constitution.
(i) All bills for fees or other compensation for services or expenses shall be,submitted in
detail sufficient for a proper preaudit and postaudit thereof.
0) Any bills for travel expenses shall be submitted in accordance with Section 112.061,
Fla. Stat.
(k) The Division reserves the right to unilaterally cancel this Agreement if the Recipient
refuses to allow public access to all documents, papers, letters or other material subject to the provisions
of Chapter 119, Fla. Stat., which the Recipient created or received under this Agreement.
(1) If the 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.
(m) The State of Florida will not intentionally award publicly-funded contracts to any
contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment
provisions contained in 8 U.S.C. Section 1324a(e)[Section 274A(e)of the Immigration and Nationality Act
("INA")]. The Division shall consider the employment by any contractor of unauthorized aliens a violation
of Section 274A(e)of the INA. Such violation by the Recipient of the employment provisions contained in
Section 274A(e)of the INA shall be grounds for unilateral cancellation of this Agreement by the Division.
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All contractors must E-Verify the employment status of their employees and subcontractors to the extent
permitted by federal law and regulation.
(n) The Recipient is subject to Florida's Government in the Sunshine Law(Section
286.011, Fla. Stat.)with respect to the meetings of the Recipient's governing board or meetings of any
subcommittee making recommendations to the governing board. All of 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, Fla. Stat.
(o) All unmanufactured and manufactured articles, materials and supplies which are
acquired for public use under this Agreement must have been produced in the United States as required
under 41 U.S.C. 10a, unless it would not be in the public interest or unreasonable in cost.
(20) LOBBYING PROHIBITION
(a) 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.
(b) The Recipient certifies, by its signature to this Agreement,that to the best of his or
her knowledge and belief:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf
of the undersigned, to any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with the awarding 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 will be
paid to any person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan or cooperative agreement, the Recipient shall complete
and submit Standard Form-LLL, "Disclosure Form to Report Lobbying."
3. The 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 subrecipients shall certify and disclose.
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.
(21) COPYRIGHT, PATENT AND TRADEMARK
ANY AND ALL PATENT RIGHTS ACCRUING UNDER OR IN CONNECTION WITH
THE PERFORMANCE OF THIS AGREEMENT ARE HEREBY RESERVED TO THE STATE OF
FLORIDA. ANY AND ALL COPYRIGHTS ACCRUING UNDER OR IN CONNECTION WITH THE
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PERFORMANCE OF THIS AGREEMENT ARE HEREBY TRANSFERRED BY THE RECIPIENT TO
THE STATE OF FLORIDA.
(a) If the Recipient has a pre-existing patent or copyright,the Recipient shall retain all
rights and entitlements to that pre-existing patent or copyright unless the Agreement provides otherwise.
(b) If any discovery or invention 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 Recipient shall refer the
discovery or invention to the Division for a determination whether the State of Florida will 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 Recipient shall notify the Division. Any copyrights accruing under or in
connection with the performance under this Agreement are transferred by the Recipient to the State of
Florida.
(c) Within thirty days of execution of this Agreement,the 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 Recipient shall retain all rights and entitlements to any
pre-existing intellectual property which is disclosed. Failure to disclose will indicate that no such property
exists. The Division shall then, under Paragraph (b), have the right to all patents and copyrights which
accrue during performance of the Agreement.
(22) LEGAL AUTHORIZATION
The 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 Recipient also certifies that the undersigned person has the authority to legally execute and bind the
Recipient to the terms of this Agreement.
(23) ASSURANCES
The Recipient shall comply with any Statement of Assurances incorporated as
Attachment C.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF MIAMI BEACH:
BY:
Name and title:
Date:
FID#
STATE OF FLORIDA
DIVISION OF EMERGENCY MANAGEMENT
BY:
Name and Title: Bryan W. Koon, Director
Date
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