HomeMy WebLinkAboutR-2021-086 Seacor Island Lines LLC Grant Application and Cooperative Endeavor AgreementRESOLUTION NO.2021-086
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, RELATING TO APPLYING FOR TWO POSSIBLE
FEDERAL GRANTS BY THE US DEPARTMENT OF TRANSPORTATION
UNDER THE (1) PORT INFRASTRUCTURE DEVELOPMENT PROGRAM,
("PDIP") AND (2) THE REBUILDING AMERICAN INFRASTRUCTURE
WITH SUSTAINABILITY AND EQUITY ("RAISE") PROGRAM, TO BE
UTILIZED ON SEACOR ISLAND LINES LLC (SEACOR) PROPERTY, TO
REPLACE THE EXISTING RORO RAMP AT THE TERMINAL, TO
REPLACE ITS WEST AND NORTH BULKHEADS AND REHABILITATE A
DILAPIDATED CARGO WAREHOUSE MARINE TERMINAL AT PORT
LAUDANIA, USED BY SEACOR TO SUPPORT ITS OPERATIONS AT THE
TERMINAL; TO AUTHORIZE THE CITY TO APPLY FOR THE ABOVE
REFERENCED GRANTS; TO ENTER INTO A COOPERATIVE ENDEAVOR
AGREEMENT WITH SEACOR; AUTHORIZING PASS -THROUGH OF THE
FEDERAL FUNDING, IF AWARDED, TO SEACOR, AND TO HAVE
SEACOR REIMBURSE THE CITY FOR ALL OF ITS COSTS ASSOCIATED
WITH HIRING GOVERNMENT SERVICES GROUP, INC., TO ACT AS THE
GRANT ADMINISTRATOR TO ENSURE COMPLIANCE WITH ALL
FEDERAL GUIDELINES; AUTHORIZING THE PROPER CITY OFFICIALS
TO EXECUTE ALL ASSOCIATED GRANT AGREEMENTS AND
REIMBURSEMENT AND INDEMNIFICATION AGREEMENTS;
PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Seacor Island Lines, LLC, a Delaware limited liability company
corporation authorized to do business in the State of Florida ("Seacor"), with its principal
mailing address of 1300 Eller Drive, Fort Lauderdale, Florida 33316, is doing business within
the jurisdictional limits of Dania Beach, and is seeking federal grant funding and the City's
assistance; and
WHEREAS, Seacor desires to join with the City of Dania Beach, in order to apply for
two possible federal grants being issued by the US Department Of Transportation (1) under the
Port Infrastructure Development Program, and (2) the Rebuilding American Infrastructure With
Sustainability And Equity (Raise) Program; and
WHEREAS, to be awarded the grant, the grant recipient must be a governmental entity,
that can pass -through the funding to a third party; and
WHEREAS, the City would sponsor and submit in partnership with Seacor a grant
application to U.S. Department of Transportation; and
WHEREAS, the City would be required to be the named grant applicant, and if awarded,
the City is expected to request approximately $4.9 million in discretionary federal Port
Infrastructure Development Program ("PIDP") grant funding to complement approximately $2.1
million (approximately 30%, 20% is the minimum requirement) in private funding by Seacor) for
an approximate $7 million project (Project); and
WHEREAS, this Project will replace the west and north bulkheads of the Seacor Island
Lines marine terminal, replace the existing roro ramp, and rehabilitate a dilapidated cargo
warehouse, all of which are located within the City; and
WHEREAS, Seacor is committed to matching funds of $2.1 million; upon completion,
this Project will ensure Seacor's continued transport of over 42,000 tons of cargo between Port
Everglades and islands in the Bahamas, provide 135 jobs in support of the movement of over
approximately 846,000 tons of cargo annually, and assist the City in its efforts to diversify and
distribute economic opportunities and offer jobs generated by operations associated with Seacor
and conducted in Port Everglades; and
WHEREAS, to ensure proper administration of the funds, the City requires Seacor to
enter into a cooperative endeavor agreement, which provides for indemnification and
reimbursement of the City's costs, including but not limited to, the costs of hiring an outside
consultant to be the grant administrator for the Project; and
WHEREAS, to ensure that the City has thought of and addressed all possible issues
associated with the grant and association with Seacor, Seacor executed a pre -grant agreement,
which reimbursed the city for outside counsel costs to review and revise the proposed
cooperative endeavor agreement; and
WHEREAS, the City hired Akerman, LLP as outside counsel to review and revise the
proposed cooperative endeavor agreement to ensure compliance with grant requirements and to
ensure proper accountability;
WHEREAS, the cooperative endeavor agreement would also have Seacor pay for the
expenses associated with hiring the third party grant administrator consultant, Government
Services Group, Inc.; and
WHEREAS, the City is seeking authorizing to engage Government Services Group, Inc.;
2 RESOLUTION #2021-086
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That the above "Whereas" clauses are ratified and confirmed as being true
and correct, and they are made a part of and incorporated into this Resolution by this reference.
Section 2. That the Commission authorizes the proper City officials to apply for two
possible federal grants by the US Department Of Transportation under the (1) Port Infrastructure
Development Program ("PDIP") and (2) the Rebuilding American Infrastructure with
Sustainability and Equity ("RAISE") Program, to be utilized on Seacor Island Lines, LLC
(Seacor) property, to replace the existing roro ramp at the terminal, replace two bulkheads and
rehabilitate a dilapidated cargo warehouse marine terminal at Port Laudania, used by Seacor to
support its operations at the terminal.
Section 3. That the Commission authorizes the proper City officials to enter into an
cooperative endeavor agreement with Seacor, to authorize pass -through of the federal funding to
Seacor, and to have Seacor reimburse the City for its costs associated with hiring Government
Services Group, Inc., to act as the grant administrator to ensure compliance with all federal
guidelines and requirements.
Section 4. That the Commission authorizes the proper City officials to execute all
associated grant agreements and reimbursement and indemnification agreements; provided,
however that no agreement will be effective unless and until City officials complete the
execution of the applicable agreement(s).
Section 5. That the City Manager and City Attorney are authorized to make minor
revisions to the agreement(s) related to the grants as are deemed necessary and proper for the
best interests of the City.
Section 6. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 7. That this Resolution shall be in force and take effect immediately upon its
passage and adoption.
3 RESOLUTION #2021-086
PASSED AND ADOPTED on June 22, 2021.
ATTEST:
THOM SCHNEIDER, CMC AMARA JAMES
CITY CLERK MAYOR i
�gellSHE'py� l'
APPROVED AS TO FORM)AND CORRECTNESS:
4 RESOLUTION #2021-086
COOPERATIVE ENDEAVOR AGREEMENT
BY AND BETWEEN
THE CITY OF DANIA BEACH
AND
SEACOR ISLAND LINES LLC
COOPERATIVE ENDEAVOR AGREEMENT
This COOPERATIVE ENDEAVOR AGREEMENT ("Agreement"), effective ,
2021 ("Effective Date"), is made by and between the CITY OF DANIA BEACH, FLORIDA, a
Florida municipal corporation (the "City"), who is duly authorized to enter into this Agreement
pursuant to Resolution No. of the City, approved at a duly constituted public meeting on
, 2021, and SEACOR ISLAND LINES LLC, a Delaware limited liability
company duly authorized to do business in the State of Florida (the "Company").
(the above is collectively referred to as "parties" and singularly referred to as "party")
WHEREAS, the parties agree that in consideration of, and pursuant to, the mandates of the
U.S. Department of Transportation's grant award to the City and the Grant Agreement entered into
by the City pursuant to the U.S. Department of Transportation's Port Infrastructure Development
Program ("PIDP") and/or Rebuilding American Infrastructure with Sustainability and Equity
("RAISE") program, attached hereto and made a part hereof as Exhibit "A" ("Grant Agreement"),
the City will distribute grant funds to the Company for the Project defined in Section 1.01 below; and
WHEREAS, Article VII, Section 10 of the Florida Constitution prohibits municipalities
from becoming joint owners with, or stockholders of, or giving, lending, or using their taxing
power or credit to aid any corporation, association, partnership, or person, but the Florida
Constitution expressly allows municipalities to invest public trust funds and other public funds in
obligations of, or insured by, the United States or any of its instrumentalities, and it permits the
funding of projects that advance a public purpose; and
WHEREAS, the Project will use federal funds to deliver tangible public benefits to the
City, including ensuring the retention of jobs and economic opportunities generated by port
operations in the City; and
WHEREAS, the parties desire to enter into this Agreement to memorialize the obligations
and tangible benefits flowing to the parties from the Project.
NOW, THEREFORE, in consideration of the premises and mutually dependent
covenants herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.01 Definitions
"Agreement" means this Cooperative Endeavor Agreement and any written amendments
or modifications thereto executed by the parties.
"City" is defined in the preamble to this Agreement.
"Company" is defined in the preamble to this Agreement.
"Company Parties" is defined in Section 5.02 of this Agreement.
"Default Notice Period" is defined in Section 5.14 of this Agreement.
"Effective Date" is defined in the preamble to this Agreement.
"Facility" means, collectively, the Company's marine terminal (including its roro ramp)
located at 950 Eller Drive, Dania Beach, Florida, and the Company's cargo warehouse located at
1300 Eller Drive, Fort Lauderdale, Florida.
"Force Majeure" is defined in Section 4.01 of this Agreement.
"Grant" means the approximately $4.9 million in discretionary PIDP and/or RAISE grant
funding pursuant to this Agreement, awarded by the U.S. Department of Transportation to the City
for the Project.
"Grant Administrator" means Government Services Group, Inc., the third party charged
with administrating the Grant on the City's behalf.
"Grant Agreement" is defined in the recitals to this Agreement.
"Grant Period" means the relevant term of the Grant specified in the Grant Agreement.
"Indemnitees" is defined in Section 5.02 of this Agreement.
"Legal Requirements" means every statute, law, ordinance, regulation, rule, policy,
procedure, directive, order, or other requirement of any federal, state, municipal, or other authority,
or any of their respective subdivisions or instrumentalities, that is in any way applicable to the
Project, the Grant, or this Agreement.
"Project" means the approximately $7 million renovation project the Company will
undertake to its Facility and port operations, including replacing the west and north bulkheads of
the Company's marine terminal at Port Laudania, replacing the existing roro ramp at the terminal,
and rehabilitating a dilapidated cargo warehouse used by the Company to support its operations at
the terminal. The Project will be funded by approximately $4.9 million in discretionary PIDP
and/or RAISE grant funding pursuant to this Agreement, and approximately $2.1 million (30% of
the total cost of the Project) in anticipated private funding by the Company. The Company is
obligated to contribute at least $1.4 million (20% of the total cost of the Project) of its own funds
to the Project and may commit additional private funds to the Project at the Company's sole
discretion. Upon completion, the Project will ensure the Company's continued transport of more
than 42,000 tons of cargo between Port Everglades and the Bahamas, will provide 135 jobs in
support of the movement of more than 846,000 tons of cargo annually, and will assist the City to
diversify and distribute economic opportunities and jobs generated by port operations in the City.
"Working Day" means any day except Saturdays, Sundays, federal legal holidays in the
United States, and days on which banking institutions or governmental offices in the State of
Florida are authorized or required by law or other governmental action to close.
Section 1.02 Interpretation
(a) Capitalized terms used but not defined in this Agreement are as defined in any
document, certificate, report, or agreement referenced or furnished in connection with this
Agreement, or otherwise take their ordinary dictionary meaning, unless the context clearly requires
otherwise.
(b) Words indicating the singular number shall include the plural number and vice
versa, and words of the masculine gender shall include correlative words of the feminine and
neutral genders and vice versa, unless the context clearly requires otherwise.
(c) The words "hereof' and "herein" shall be construed to refer to the entirety of this
Agreement and shall not be restricted to the particular portion of this Agreement in which they
appear.
(d) Section numbers shall refer to sections of this Agreement.
(e) When any period of time is referred to in this Agreement by days, it will be computed
to exclude the first and include the last day of such period. If the last day of any such time period
falls on a day other than a Working Day, such day will be omitted from the computation, and the time
period shall be automatically extended through the close of business on the next regularly scheduled
Working Day. A calendar day of twenty-four (24) hours measured from midnight to the next midnight
shall constitute a day.
(f) The parties acknowledge an agree that the recitals to this Agreement are true and
correct and are incorporated as if fully reproduced in the body of this Agreement.
ARTICLE II
OBLIGATIONS
Section 2.01 City and Company Obligations
(a) Distribution of Funds. The City shall distribute the Grant funds to the Company in
phases as completion of the Project advances continuously to completion, and, in each case, upon
verification, to the City's and the Grant Administrator's reasonable satisfaction, that the Company
has satisfied all conditions precedent to distribution of the Grant funds in the Grant Agreement,
this Agreement, and under the applicable Legal Requirements. Notwithstanding the foregoing, the
City reserves the right, in its sole discretion, to withhold distribution of all or any portion of the
Grant funds, at any time and from time to time, if the Company is then in breach of this Agreement,
the Grant Agreement, or any of the Legal Requirements.
(b) Use of Funds. The Company shall use the Grant funds solely for purposes of
completing the Project. All other uses are expressly prohibited.
(c) Compliance with Legalquirements and the Grant Award. The Company is solely
responsible for complying, and hereby agrees to comply, with all of the Legal Requirements and with
the terms and conditions of the federal Grant award as memorialized in the Grant Agreement. This
includes, without limitation, the obligation to obtain and maintain, at the Company's sole cost and
expense, all permits, approvals, and authorizations required by any and all authorities having
jurisdiction over the Project, the Grant, or this Agreement.
(d) Ownership of Improvements. As between the Company, the federal government, and
the City, the Company shall own all renovations and improvements made to the Facility in connection
with the Project, including, without limitation, all drawings and other work product relating thereto,
subject to applicable public records laws and disclosure requirements as provided in this Agreement.
(e) Non -Discrimination. The Company agrees to abide by the requirements of the
following laws (as amended), to the extent applicable: Title VI of the Civil Rights Act of 1964, Title
VII of the Civil Rights Act of 1964 and Equal Employment Opportunity Act of 1972; Federal
Executive Order 11246; the Rehabilitation Act of 1973; the Vietnam Era Veteran's Readjustment
Assistance Act of 1974; the Uniformed Services Employment and Reemployment Rights Act of
1994; Title IX of the Education Amendments of 1972; the Age Discrimination Act of 1975; the Fair
Housing Act of 1968; and the Americans with Disabilities Act of 1990. The Company agrees that,
to the extent required by law, it shall not discriminate in its employment practices and shall render its
services without discrimination, and without regard to race, color, religion, sex, national origin,
veteran status, political affiliation, or disabilities.
ARTICLE III
TERM
Section 3.01 Term
The term of this Agreement shall commence on the Effective Date and shall terminate
automatically on the last day of the Grant Period, unless earlier terminated as provided in this
Agreement.
ARTICLE IV
FORCE MAJEURE
Section 4.01 Force Majeure
(a) Neither party shall be considered in default in the performance of any duty or
obligation under this Agreement (except the obligation to make payments or reimbursements when
due) if such performance is prevented or delayed during the pendency of any Force Majeure event,
but for no longer time period. "Force Majeure" shall mean acts of God, lightning, earthquakes,
fires, storms, floods, explosions, epidemics, riots, civil disturbances, wars, and acts of terrorism,
but specifically excludes any delays caused by or resulting from any acts or omissions of the party
claiming Force Majeure. Any delay caused by Force Majeure shall not be recognized unless the
party claiming Force Majeure shall contact the other party within thirty (30) Working Days after
the event of Force Majeure commences. The parties shall use commercially reasonable efforts to
remedy the Force Majeure even with all due diligence. Neither economic impracticality nor the
inability of either parry to perform in whole or in part for economic reasons shall constitute an
event of Force Majeure. Notwithstanding anything to the contrary, the City's obligation to
distribute the Grant funds within the deadline provided in Section 2.01(a) is subject to extension
for Force Majeure and shall not be deemed a payment or monetary obligation.
(b) The Force Majeure period shall continue from the date of such notice until the
effects of such Force Majeure are removed, remedied or repaired, or otherwise no longer prevent
performance of the Company's or the City's obligations hereunder. During the Force Majeure
period, the obligations of the parties under this Agreement shall be suspended to the extent
impeded by such Force Majeure event. No Force Majeure period arising from a single event of
Force Majeure shall be deemed to exist for longer than one year from the date of such notice, and
the aggregate Force Majeure period during the term of this Agreement shall not exceed two years.
(c) Any repair to the Facility necessitated by an event of Force Majeure shall be the
sole obligation of the Company and not the City. The Company must proceed expeditiously with
due diligence to effect repairs to the Facility or undertake efforts to remedy or mitigate the effects
of Force Majeure, and within sixty (60) Working Days after the event of Force Majeure shall
provide the City with a report showing the efforts made and to be made to remedy or mitigate such
effects, and a timetable to return to full performance.
ARTICLE V
LIABILITY; JURISDICTION; OTHER OBLIGATIONS; DEFAULT AND CURE
Section 5.01 No Personal Liability
No covenant or agreement contained in this Agreement shall be deemed to be the covenant
or agreement of any official, director, officer, agent or employee of any party hereto in his
individual capacity, and neither the officers of any party hereto nor any official executing this
Agreement shall be liable personally with respect to this Agreement or be subject to any personal
liability or accountability by reason of the execution and delivery of this Agreement, other than in
an action for fraud.
Section 5.02 Defense and Indemnification
(a) To the fullest extent permitted by law, the Company shall protect, defend,
indemnify, and hold harmless the City, its officers, commissioners, subsidiaries, agents, servants,
representatives and employees (collectively, "Indemnitees") of, from, and against any and all
losses, costs, claims, charges, expenses, penalties, damages, liabilities, obligations, fines, liens,
suits, demands, judgments, injuries, reasonable attorney's fees, interest, and actions arising out,
resulting from, or in connection with any of the following to the extent relating in any way to the
Project, the Grant, or this Agreement: (i) any breach of this Agreement by the Company; (ii) any
bodily injury (including death) or personal injury to any person; (iii) any injury or damage to any
real or personal property; (iv) any act or omission of the Company, its contractors, subcontractors
(of each and every tier), consultants, agents, servants, representatives, employees, or any other
person or entity acting by, through, or in any way on behalf of any or all of them (collectively, the
"Company Parties"); (v) any violation of any of the Legal Requirements by the Company or any
of the Company Parties; and (vi) any suit or other action brought or threatened by any third party
regarding the legality, validity, or enforceability of all or any part of this Agreement.
(b) When in the course of fulfilling its obligations under this Section, the Company
must engage attorneys to defend the Indemnitees, and the Company shall obtain the prior written
consent of the City to the attorneys to be engaged, which consent shall not be unreasonably
withheld.
(c) The Company shall be responsible for all reasonable attorney's fees and costs
which the City may incur if the City must sue to enforce the provisions of this indemnity, provided
the City prevails in its litigation against the Company.
(d) Nothing in this Section shall be construed as indemnifying the City or any other
Indemnitees against its own or their negligence as determined by a judgment of a court of
competent jurisdiction.
(e) This Section 5.02 shall survive any expiration or termination of this Agreement.
Section 5.03 Insurance Requirements
(a) The Company shall obtain and maintain, at no cost to the City, the following
minimum insurance:
Commercial General Liability
Limits of Liability
Bodily Injury & Property Damage Liability
Each Occurrence
$5,000,000
Policy Aggregate
$10,000,000
Personal & Advertising Injury
$5,000,000
Products & Completed Operations
$10,000,000
Coverage / Endorsements Required
Contingent & Contractual Liability
Premises and Operations Liability
Primary Insurance Clause Endorsement
No exclusion for Explosion, Collapse & Underground Hazard
Waiver of Subrogation in favor of the City with respect to the liabilities assumed
by the Company under this Agreement.
Completed Operations coverage must be valid and applicable for a minimum of 3
years following completion of the Project.
Business Automobile Liability
Limits of Liability
Bodily Injury and Property Damage
Combined Single Limit
Any Auto/Owned Autos or Scheduled Autos
Including Hired and Non -Owned Autos
Any One Accident $2,000,000
Coverage / Endorsement Required
Employees are covered as insureds
Workers Compensation
Statutory - State of Florida
Include Employers' Liability Limits:
$1,000,000 for bodily injury caused by an accident, each accident
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
Workers Compensation insurance is required for all persons fulfilling this contract
on behalf of the Company, whether employed, contracted, temporary or
subcontracted. The policy must include a Waiver of Subrogation in favor of the
City with respect to the liabilities assumed by the Company under this Agreement.
In addition, the Company must be in compliance with all applicable state and
federal workers' compensation laws, including US Longshore and Harbor Workers
Compensation Act and Jones Act.
Umbrella/Excess Liability
Umbrella/Excess Liability can be utilized to provide the required limits. Coverage
shall be in excess of and provide substantially the same coverage as the underlying
insurance policy coverages, including all special endorsements. Umbrella should
include Employer's Liability.
(b) All above coverage must remain in full force and effect without interruption for the
term of this Agreement and until the completion of the Project (or for such longer period as may
be required by applicable law). All policies required by this Agreement shall provide 30 days'
written notice of cancellation or material change from the insurer (or 5 days' written notice in the
event of cancellation due to non-payment of premium). If the insurance policies do not contain
such a provision, it is the responsibility of the Company to provide such written notice within 10
days of the change or cancellation. In addition, the insurance policies required by this Agreement
shall also provide that an act or omission of one of the named insureds shall not reduce or void
coverage to the other named insureds, and shall afford coverage for claims based on acts,
omissions, injury, and damage that arose during the policy period.
(c) The Company must deliver Certificates of Insurance evidencing all of the insurance
required by this Agreement to the City no later than three (3) Working Days after the Effective
Date of this Agreement. All such certificates must include a reference to this Agreement and other
identifying references as appropriate, and shall be issued to the following:
Certificate Holders:
SEACOR ISLAND LINES LLC,
1300 ELLER DRIVE
FORT LAUDERDALE, FL 33316
CITY OF DANIA BEACH
100 West Dania Beach Boulevard
Dania Beach, FL 33004
(d) All insurance companies utilized by the Company must be authorized to do
business in the State of Florida and must be rated no less than "A-" as to management, and no less
than "Class V" as to financial strength, by the latest edition of AM Best's Insurance Guide, or its
equivalent.
(e) Certificates of Insurance are subject to review and verification by City Risk
Management. The City reserves the right but not the obligation to reject any insurer providing
coverage due to poor or deteriorating financial condition. These insurance requirements shall not
limit the liability of the Company in any way. Further, the City does not represent these types or
amounts of insurance to be sufficient or adequate to protect the Company's interests or liabilities,
but are merely minimums.
(f) Safety and loss control shall be exercised at all times by the Company for the
protection of all persons, employees, and property. Any hazardous conditions must be promptly
identified, reported, and action taken to mitigate as soon as possible.
Section 5.04 Tag Liability
The Company agrees that the responsibility for the payment of any taxes caused by the
funds received under this Agreement or any other tax levied on the Facility shall be the Company's
obligation.
Section 5.05 Jurisdiction and Venue; Jury Trial Waiver
(a) This is a contract which shall be subject to, governed by, and interpreted pursuant
to the laws of the State of Florida without regard to applicable conflicts of laws principles. The
laws of the state of Florida will govern the Agreement, and disputes will be resolved in the 17th
Judicial Circuit Court of Broward County, or in the federal courts in the Southern District of
Florida, whichever jurisdiction is appropriate. The Agreement is not subject to arbitration.
THE PARTIES EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY FOR ANY
DISPUTES ARISING FROM, OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT. THE PARTIES UNDERSTAND AND AGREE THAT THIS WAIVER IS
A MATERIAL AGREEMENT TERM.
(b) All claims, counterclaims, disputes and other matters in question between the
City and the Company arising out of, relating to or pertaining to the Agreement, the breach
of it, the services of it, or the standard of performance required in it, are to be addressed by
resort to non -binding mediation as authorized under the laws and rules of Florida; provided,
however, that in the event of any dispute between the parties, the parties agree to first
negotiate with each other for a resolution of the matter or matters in dispute and, upon failure
of such negotiations to resolve the dispute, the parties shall resort to mediation. If mediation
is unsuccessful, any such matter may be determined by litigation in the appropriate courts
having venue and jurisdiction as provided in Section 5.05(a) above.
Section 5.06 Other ObliEations
(a) Except as otherwise provided in this Agreement, the rights and remedies available to
the parties in this Agreement, and, in particular but without limitation, the obligations imposed upon
the Company and all of the rights and remedies available to the City under them, are in addition to,
and are not to be construed in any way as a limitation of, any rights and remedies available to any or
all of them which are otherwise imposed or available to any or all of them which are otherwise
imposed or available by laws or regulations or by other provisions of this Agreement, and the
provisions of this paragraph will survive final payment and termination or completion of the
Agreement.
(b) The Company shall not assign or transfer this Agreement nor its rights, title or interests
in it without the City's prior written approval as evidenced by a resolution duly adopted by the City
Commission, which approval the City may withhold for any or no reason in its sole discretion. The
obligations undertaken by the Company pursuant to the Agreement shall not be delegated or assigned
to any other person or firm unless the City shall first consent in writing to the assignment or transfer
of it. Any violation of the terms of this paragraph shall constitute a breach of Agreement by the
Company and the City may, at its discretion, cancel the Agreement and all rights, title, and interest of
the Company shall thereupon cease and terminate.
(c) The Company and its employees, volunteers, subcontractors, and agents shall be and
remain independent contractors and not agents or employees of the City with respect to all of the acts
and services performed by and under the terms of this Agreement. This Agreement shall not in any
way be construed to create a partnership, association or any other kind of joint undertaking or venture
between the parties to this Agreement.
(d) The Company agrees that it shall be held fully responsible, except as otherwise
prohibited by law, for all acts of its employees while in its employ.
(e) Neither party, nor its employees, shall have or hold any continuing or frequently
recurring employment or contractual relationship that is substantially antagonistic or incompatible
with that party's performance of its obligations under this Agreement.
(f) This Agreement may not be amended or modified except in writing, approved and
executed by the parties with the same formalities and dignity as this Agreement.
Section 5.07 Nondiscrimination and Equal Opportunity Employment
During the performance of this Agreement, the Company agrees as follows:
(a) The Company will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. The Company will take
affirmative action to ensure that applicants are employed, and that employees are treated during
employment without regard to their race, color, religion, sex, 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 Company 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.
(b) The Company will, in all solicitations or advertisements for employees placed
by or on behalf of the Company, state that all qualified applicants will receive considerations
for employment without regard to race, color, religion, sex, or national origin.
(c) The Company will send to each labor union or representative of workers with
which it has a collective bargaining agreement or other agreement or understanding, a notice
to be provided advising the labor union or workers' representatives of the Company's
commitments under this section and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
(d) The Company will 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.
(e) The Company will 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 will 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.
(f) In the event of the Company's noncompliance with the nondiscrimination clauses
of this Agreement or with any of the rules, regulations, or orders specified herein, this Agreement
may be canceled, terminated, or suspended in whole or in part and the Company may be declared
ineligible for further government contracts or federally assisted contracts in accordance with
procedures authorized in Executive Order 11246 of September 24, 1965, and such other
sanctions as 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.
(g) The Company will include the portion of the sentence immediately preceding
paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase
order related to the Project 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 will be binding upon each subcontractor or vendor. The Company will
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 that the Company becomes involved in, or is threatened
with, litigation with a subcontractor or vendor as a result of such direction by the administering
agency, the Company may request the United States to enter into such litigation to protect the
interests of the United States.
Section 5.08 Compliance with the Copeland "Anti -Kickback" Act
(a) The Company 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 Agreement.
(b) The Company shall insert in any contracts or subcontracts related to the Project
the clause above and such other clauses as the City or the federal government (or any of its
instrumentalities) may by appropriate instructions require, and also a clause requiring the
Company's contractors and subcontractors (of each and every tier) to include these clauses
in any lower- tier subcontracts. The Company shall be solely responsible for the compliance
by any contractor, subcontractor, and lower- tier subcontractors with all of these Agreement
clauses.
(c) A breach of this Section 5.08 is grounds for termination of the Agreement.
Section 5.09 Access to Records
(a) The Company agrees to provide the City, the Comptroller General of the United
States, and each of their respective authorized representatives access to any books, documents,
papers, and records of the Company which are directly pertinent to this Agreement for the
purposes of making audits, examinations, excerpts, and transcriptions.
(b) The Company agrees to permit each of the foregoing parties to reproduce by any
means whatsoever or to copy excerpts and transcriptions as reasonably needed.
(c) The Company agrees to provide each of the foregoing parties access to work sites
pertaining to the work being completed under this Agreement.
Section 5.10 Compliance with Federal Law, Regulations, and Executive Orders
(a) This is an acknowledgement that federal funding under the U.S. Department of
Transportation's FY2021 Infrastructure for Rebuilding America ("INFRA") Program will be used
to fund the Agreement only. The Company will comply will all applicable federal law, regulations,
executive orders, procedures, and directives.
(b) The parties acknowledge and agree that this Agreement is intended to comply with
all of the Legal Requirements applicable to the PIDP, RAISE, and fNFRA programs, to the extent
applicable to the Project and this Agreement, and it is further agreed that with respect to any Legal
Requirements now or hereinafter in effect and affecting the validity or enforceability of this
Agreement, all such Legal Requirements are made a part of this Agreement to the extent necessary
to bring this Agreement into conformity with law, and, as so modified, this Agreement shall
continue in full force and effect.
Section 5.11 Obligation by Federal Government
The federal government is not a parry to this Agreement and is not subject to any
obligations or liabilities to the City, the Company, or any other parry pertaining to any matter
resulting from the Agreement.
Section 5.12 Grant Submittals
The Company, at its sole cost and expense, is solely responsible for fully and promptly
complying, and hereby agrees to fully and promptly comply, with any and all requests or directives
made or given to the Company by the federal government, the City, or the Grant Administrator in
the solicitation or administration of the Grant. This includes, without limitation, the obligation to
complete and submit all necessary applications, forms, paperwork, documents, payments,
certifications, affidavits, and other instruments that the federal government, the City, the Grant
Administrator, or any other authority may require at any time and from time to time in connection
with the Grant, the Project, or this Agreement.
Section 5.13 Reimbursable Expenses
The Company is solely responsible for any and all costs and expenses associated with the
Grant, the Project, and this Agreement. This includes, without limitation, all costs and expenses
incurred by or charged to the City (whether before or after the Effective Date of this Agreement)
in connection with the Grant -administration services rendered to the City by the Grant
Administrator. The Company agrees to reimburse the City for all such costs and expenses no later
than thirty (30) calendar days after the City's delivery of an invoice therefor. All sums owed to the
City under this Agreement and not reimbursed by the Company when due will bear and accrue
interest at a rate of ten percent (10%) per annum from the date due until the date such sums are
fully and finally paid. The Company's reimbursement obligations in this Section 5.13 are in
addition to the Company's separate obligation to reimburse the City for legal expenses incurred
by the City in the preparation and negotiation of this Agreement, as memorialized in a separate
agreement between the parties. This Section 5.13 shall survive any expiration or termination of
this Agreement.
Section 5.14 Default, Cure, and Remedies
(a) If the Company breaches any term or condition of this Agreement or of the Grant
Agreement on the part of the Company to be adhered to or performed, and such breach continues
uncured for five (5) Working Days after the City's delivery of a written notice of default to the
Company or for such longer period as is stated in the City's default letter (such period, the "Default
Notice Period"), then the City may, in its discretion, take any or all of the following actions against
the Company: (i) terminate this Agreement; (ii) receive immediate reimbursement from the
Company for all or any portion of the Grant funds that have been distributed to the Company; (iii)
receive immediate reimbursement from the Company for attorney's fees and collection costs
incurred by the City with respect to such breach; (iv) obtain specific performance, an injunction,
or other equitable relief, (v) record one or more liens against the Facility (or any other real property
of the Company in the City's corporate limits) for an amount deemed sufficient, in the City's
reasonable discretion, to cure such breach (but not as a penalty); (vi) withhold or revoke any
permits, approvals, consents, or other authorizations issued by the City for the Project or the
Facility; (vii) obtain any other remedy available to the City at law or in equity.
(b) Notwithstanding the foregoing, if the Company's breach does not concern the
failure to pay (or reimburse) the City any money owed under this Agreement and such breach is
susceptible to cure but cannot reasonably be cured during the Default Notice Period, and the
Company has promptly commenced and is making diligent and expeditious efforts during the
Default Notice Period to cure such breach (substantiated to the City's reasonable satisfaction), but
the Company is unable by reason of the nature of the breach to cure the same within the Default
Notice Period, then the time period to complete such cure shall be reasonably extended for so long
as the Company is making diligent and expeditious efforts to complete such cure, but in no event
shall the total cure period, with all extensions, run longer than twenty-one (21) Working Days from
the date of the City's delivery of the initial notice of default to the Company regarding such breach.
ARTICLE VI
NOTICES
Section 6.01 Notices
Any notice required or permitted to be given under or in connection with this Agreement
shall be in writing and shall be (1) hand -delivered by courier, with signed receipt; (2) mailed
through the United States Postal Service, postage prepaid, first-class, with return receipt requested;
(3) delivered by private, commercial carrier, such as Federal Express, with signature for delivery;
or (4) sent by telegram, electronic facsimile transmission or other similar form of rapid
transmission and confirmed by written notice sent by one of the first three methods described
above at substantially the same time as such transmission. All such communications shall be
delivered to the officer (or their successor) at the address set forth below, or to such other person
and address as may be subsequently designated by such party in written notice to the other parties.
Notice shall be deemed given upon the earlier of actual receipt; one Working Day after sending by
private, commercial carrier; or three Working Days after sending by United States Postal Service.
To the City:
Ana Garcia, ICMA-CM, City Manager
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, FL 33004
With a copy to:
City Attorney
100 West Dania Beach Blvd.
Dania Beach, FL 33004
To the Company:
SEACOR Island Lines, LLC,
1300 Eller Drive
Fort Lauderdale, FL 33316
ARTICLE VII
MISCELLANEOUS
Section 7.01 Waiver of Certain Damages
Except in an action for fraud, in no event shall either party be liable for any special,
punitive, exemplary, indirect or consequential damages of any kind, loss of contract or business
opportunity, loss of profit or revenue or business interruption losses arising out of or in connection
with this Agreement, whether such liability is based in contract, tort (including negligence), statute
or otherwise.
Section 7.02 Cautions
The captions or headings in this Agreement are for convenience only and do not define or
limit the scope or extent of this Agreement.
Section 7.03 Counterpart
This Agreement may be executed in several counterparts, each of which shall be deemed
an original, and all of which when taken together shall be deemed one and the same Agreement.
Section 7.04 Severability
To the fullest extent possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provisions of this Agreement
shall be deemed by final order of a court of competent jurisdiction to be prohibited or invalid under
such law, such provision shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this Agreement, but
only so long as the fundamental terms and conditions of this Agreement remain legal and
enforceable.
Section 7.05 Scrutinized Companies
The Company certifies that it is not on the Scrutinized Companies that Boycott Israel List
created pursuant to Section 215.4725, Florida Statutes (2020), and that it is not engaged in a
boycott of Israel. The City may terminate this Agreement at the City's option if the Company is
found to have submitted a false certification as provided under subsection (5) of Section 287.135,
Florida Statutes (2020), as may be amended or revised, or has been placed on the Scrutinized
Companies that Boycott Israel List created pursuant to Section 215.4725, Florida Statutes (2020),
as may be amended or revised, or is engaged in a boycott of Israel.
Section 7.06 Verification of Employment Eligibility
The Company represents to the City that the Company has registered with and uses the E-
Verify system maintained by the United States Department of Homeland Security to verify the
work authorization status of all newly hired employees in compliance with the requirements of
Section 448.095, Florida Statutes, and that entry into this Agreement will not violate that statute.
If the Company violates this section, the City may immediately terminate this Agreement for cause
and the Company shall be liable for all costs incurred by the City due to the termination.
Section 7.07 Public Records
(a) The Company agrees to keep and maintain public records in the Company's
possession or control in connection with the Company's performance under this Agreement. The
Company additionally agrees to comply specifically with the provisions of Section 119.0701,
Florida Statutes. The Company shall 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 Agreement, and following completion of the Agreement until the records
are transferred to the City, if applicable.
(b) Upon request from the City's custodian of public records, the Company shall
provide the City 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 by Chapter 119, Florida
Statutes, or as otherwise provided by law.
(c) Upon completion of this Agreement or in the event of termination by either party,
any and all public records relating to the Agreement in the possession of the Company shall be
delivered by the Company to the City Manager, at no cost to the City, within seven (7) days of
such termination. All such records stored electronically by the Company shall be delivered to the
City in a format that is compatible with the City's information technology systems.
Section 119.0701(2)(a), Florida Statutes
IF THE COMPANY HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE COMPANY'S DUTY
TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:
Custodian of Records: THOMAS SCHNEIDER, CITY CLERK
Mailing Address: 100 W. Dania Beach Boulevard
Dania Beach, Florida 33004
Telephone number: 954-924-9800, Ext. 3623
Email: tschneider(a),daniabeachfl.gov
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
WITNESSES:
Printed Name:
Printed Name:
SEACOR ISLAND LINES LLC,
a Delaware limited liability company
Name:
Title:
�Y
STATE OF )
ss . .
COUNTY OF )
The foregoing instrument was acknowledged before me by means of ❑ physical presence or
❑ online notarization, this day of 2021, by ,
as of SEACOR ISLAND LINES LLC, a Delaware
limited liability company, on behalf of the Company. He/She is personally known to me or has
produced as identification.
Notary Seal
Print Name:
Notary Public, State of
THOMAS SCHNEIDER, CMC
CITY CLERK
APPROVED AS TO LEGAL FORM
AND CORRECTNESS;
THOMAS J. ANSBRO, CITY ATTORNEY
STATE OF FLORIDA
) SS
COUNTY OF BROWARD )
CITY OF DANIA BEACH, FLORIDA,
a Florida municipal corporation
TAMARA JAMES, MAYOR
ANA M. GARCIA, ICMA-CM
CITY MANAGER
The foregoing instrument was acknowledged before me by means of ❑ physical presence or
❑ online notarization, this day of 2021, by Tamara James, as Mayor of the
CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation, on behalf of the City. She
is personally known to me or has produced as identification.
Notary Seal
Print Name:
Notary Public, State of