HomeMy WebLinkAboutR-2009-187 BC Public Transportation Services RESOLUTION NO. 2009-187
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, APPROVING THE INTERLOCAL AGREEMENT FOR
PUBLIC TRANSPORTATION SERVICES BETWEEN BROWARD COUNTY
AND THE CITY OF DANIA BEACH FOR PUBLIC TRANSPORTATION
SERVICES FOR A TERM EXTENDING TO SEPTEMBER 30, 2012;
PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA:
Section 1. That the Interlocal Agreement to provide Public Transportation Services
between Broward County and the City of Dania Beach for public transportation services through
September 30, 2012 is approved and the proper City officials are authorized to execute it (the
Agreement in substantial form as Exhibit "A" is attached).
Section 2. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 3. That this Resolution shall be in force and take effect immediately upon its
adoption.
PASSED AND ADOPTED on September 22, 2009.09
ANNE CASTRO
�,S F1 YOR-COMMISSIONER
ATTEST: Qo�P pr`
LOUISE STILSON, CMC ,
CITY CLERK
APPROVED AS Nt
AND CORRECTNESS:
r
THOM S J. B O
CITY ATTO EY
INTERLOCAL AGREEMENT
between
BROWARD COUNTY
and
CITY OF DANIA BEACH
for
COMMUNITY BUS SERVICE
2 RESOLUTION#2009-187
INTERLOCAL AGREEMENT
between
BROWARD COUNTY
and
CITY OF DANIA BEACH
for
COMMUNITY BUS SERVICE
This is an Agreement made and entered into by and between: BROWARD COUNTY, a
political subdivision of the state of Florida, hereinafter referred to as "COUNTY,"
AND
CITY OF DANIA BEACH, a municipal corporation organized and existing under the laws
of the state of Florida, its successors and assigns, hereinafter referred to as "CITY."
WHEREAS, public transportation services provided by COUNTY need to be
supplemented to serve a greater number of people traveling within and throughout CITY; and
WHEREAS, public transportation resources are limited and must be used in the most
efficient manner to maintain citizen support; and
WHEREAS, both COUNTY and CITY agree that better public transportation for
residents of CITY and those persons traveling within or throughout CITY is needed; and
WHEREAS, it is desirable to provide an alternative form of public transit service to the
residents of CITY and those persons traveling within or throughout CITY; and
WHEREAS, it is the intent of the parties that the alternative form of public transit shall
not duplicate the existing mass transit system in COUNTY; and
WHEREAS, CITY has expressed an interest in providing an alternate form of
transportation by utilizing vehicles provided by COUNTY; NOW, THEREFORE,
IN CONSIDERATION of the mutual terms, conditions, promises, covenants and
payments hereinafter set forth, COUNTY and CITY agree as follows:
ARTICLE 1
3 RESOLUTION#2009-187
DEFINITIONS AND IDENTIFICATIONS
1.1 ADA - American with Disabilities Act of 1990, 42 USC Sections 12101 et seq. and the
implementing regulations found in 29 CFR Parts 1630, 1602; 28 CFR Part 35, 49 CFR
Parts 27,37,38, 28 CFR Part 36, and 47 CFR Sections 64.601 et seq.
1.2 Agreement - means this document, Articles 1 through 10, inclusive. Other terms and
conditions are included in the exhibits and documents that are expressly incorporated
by reference.
1.3 Board - The Broward County Board of County Commissioners.
1.4 BCT - The Broward County Transit Division.
1.5 Contract Administrator - The Broward County Administrator, the Director of the Broward
County Transportation Department, or designee of such County Administrator or
Director. The primary responsibilities of the Contract Administrator are to coordinate and
communicate with CITY and to manage and supervise execution and completion of the
Scope of Services and the terms and conditions of this Agreement as set forth herein.
In the administration of this Agreement, as contrasted with matters of policy, all parties
may rely on the instructions or determinations made by the Contract Administrator;
provided, however, that such instructions and determinations do not change the Scope
of Services.
1.6 County Administrator - The administrative head of COUNTY pursuant to Sections 3.02
and 3.03 of the Broward County Charter.
1.7 County Attorney - The chief legal counsel for COUNTY who directs and supervises the
Office of the County Attorney pursuant to Section 2.10 of the Broward County Charter.
1.8 Emergency Service - Emergency Service shall mean service scheduled at the direction
of COUNTY during periods of adverse weather or other emergency conditions as
determined by COUNTY including, but not limited to, inclement weather, hurricane,
earthquake, fire, flood, cloudburst, cyclone, or other natural phenomenon of a severe
and unusual nature, act of a public enemy, epidemic, quarantine, restriction, embargo,
or other periods of extreme or catastrophic events.
1.9 Vehicle(s) - The wheelchair accessible, passenger Vehicle(s), as described in Exhibit
„E „
ARTICLE 2
SCOPE OF SERVICES
4 RESOLUTION#2009-187
SERVICES TO BE PROVIDED BY CITY
2.1 CITY shall provide public transportation services within the CITY at the locations and
according to schedules as contained in Exhibit "A," a copy of which is attached hereto
and made a part hereof. The provision of transportation services may be performed by
CITY through the use of its employees or CITY may enter into a contract with a third
party to perform the services. In the event CITY contracts with a third party, CITY shall
remain fully responsible hereunder and shall ensure that its contractor complies at all
times with each and every term, condition, duty, and obligation set forth herein. Any
changes to Exhibit "A" made by CITY shall be effective only upon the written consent of
Contract Administrator.
The services to be provided shall include the following:
2.1.1 Service shall be provided a minimum of twenty four (24) hours a week to certain
locations and at scheduled intervals as listed on the attached Exhibit "A." CITY
acknowledges and agrees that it shall not deviate or make changes to the
service routes established in Exhibit "A," including but not limited to a decrease
or increase in revenue service hours, without the prior written consent of Contract
Administrator. CITY further acknowledges and agrees that compensation under
this Agreement is as set forth in Section 5.1, and COUNTY shall not compensate
CITY for any deviations or changes from the service routes established in Exhibit
"A" without the prior written consent of Contract Administrator.
2.1.2 If CITY determines a fare to be appropriate prior to beginning service under the
terms of this Agreement, CITY may institute such fare; provided, however, that
such fare shall never exceed one-half (1/2) of the fixed-route, full adult COUNTY
fare. A public hearing shall be held by the CITY prior to the institution of any
proposed fare or fare increase. COUNTY must approve, in writing, the
imposition of a fare prior to implementation by CITY.
2.1.3 CITY, in compliance with the provisions of 49 USC Section 5307(d)(1), shall hold
a public hearing before its City Commission as follows:
(1) Prior to the implementation or change in fares.
(2) Prior to any change in service affecting twenty-five percent (25%) or more
to the route miles, when calculated on total route miles or on daily revenue
miles.
(3) Prior to establishing a new transit route.
(4) Prior to discontinuing any transit route in its entirety.
(5) Prior to implementing headway adjustments of more than ten (10) minutes
during peak service hours or more than twenty (20) minutes during non-
peak hours.
5 RESOLUTION#2009-187
At least one Notice of Intent to Hold a Public Hearing must be published in a
newspaper of general circulation in Broward County no less than ten (10) days
prior to the date of the public hearing. The notice shall contain, at a minimum:
(1) A description of the contemplated service or fare change, as appropriate.
(2) The date, time, and accessible location of the hearing.
(3) The location and addressee to whom written comments may be sent.
(4) Criteria for requesting available accommodations and alternative formats.
In the event that service changes are necessitated by road closures or road
construction/repair, interruptions due to hurricane or other natural disaster,
Contract Administrator may authorize service reductions on a temporary basis,
without a prior public hearing, for a period not to exceed six (6) months. The
temporary change in service shall be given widest possible advance notice
through the use of Flyers, handouts, or other printed material and shall include a
telephone number to inquire further about the change or through which individual
patrons may seek alternative format information.
2.1.4 CITY shall provide COUNTY with the notice and minutes of all public hearings
held to satisfy the requirements of 49 USC Section 5307(d)(1)(1).
2.1.5 It shall be the responsibility of CITY to obtain any necessary permission to
access or encroach upon any private property for use as an origin and/or
destination associated with this Agreement.
2.1.6 Within six (6) months after the start of service, CITY shall maintain a minimum
average of 7.1 passengers per revenue service hour per vehicle operated by
CITY. It is understood and agreed between COUNTY and CITY that CITY's
failure, to maintain a minimum average of 7.1 passengers per revenue service
hour, per vehicle, during any six (6) month period shall constitute a breach of this
Agreement, entitling COUNTY to immediately terminate the same in accordance
with the terms hereof and shall entitle COUNTY to pursue any and all other
remedies provided under this Agreement or any remedies available to COUNTY
at law or in equity. CITY shall be paid for services properly performed under the
Agreement through the termination date specified in the written notice of
termination. CITY shall return any and all funds paid in advance to CITY for
services that were not performed prior to the date specified in the written notice
of termination. CITY shall return the funds within ten (10) days of receipt by
CITY of the notice of termination.
2.1.7 Vehicle(s) shall be operated by properly licensed operators (Florida Commercial
Driver's License minimum Class C with a passenger endorsement or, if air-
brakes are applicable, a Florida Commercial Driver's License Class B with a
passenger endorsement) employed by CITY or its contractors. These employees
shall provide full utilization of Vehicle(s) to disabled passengers. CITY or its
contractor shall obtain driving and criminal background checks for all operators
6 RESOLUTION#2009-187
from the State of Florida Department of Law Enforcement or other sources
approved by Contract Administrator. CITY and/or its contractor shall require its
operators performing the services hereunder to notify CITY within 24 hours of
any conviction for any traffic violation (except parking).
2.1.8 CITY, or its third party contractor, shall not permit any driver to operate a Vehicle
provided herein whose driving record, as compiled by the Department of Motor
Vehicles of the State of Florida, does not meet the following criteria:
(a) Driver must have been a licensed driver for at least three (3) years (Time
spent driving on a learner's permit does not count towards this
requirement).
(b) No more than one (1) moving violation in the past three (3) years.
(c) No AT-FAULT accidents in the last three (3) years.
(d) No Failures to Appear or Failures to Pay in the last three (3) years.
(e) No Reckless Driving within the last seven (7) years.
(f) No Driving Under the Influence within the last seven (7) years. Two
convictions (lifetime) for DUI is an automatic disqualification.
(g) No suspensions within the last three (3) years (one suspension for PIP
permitted).
(h) No Manslaughter resulting from the operation of a motor vehicle.
(i) No Hit-Run or Hit-Run Property Damage.
Q) No Reckless Driving causing injury.
(k) No Driving Under the Influence causing injury.
(1) No combination of any violations that indicate a pattern of irresponsibility
or poor judgment.
2.1.9 Florida Commercial Driver's License operators hired by CITY or its contractors
shall issue COUNTY bus route timetables or other transit information to any
passenger requesting such material.
2.1.101nsofar as possible, scheduled service shall be coordinated with existing
COUNTY bus service. It is the intent of the parties that CITY's scheduled service
shall not duplicate existing COUNTY bus service.
7 RESOLUTION#2009-187
2.1.11 CITY shall maintain the Vehicle(s) provided to it by COUNTY in accordance with
manufacturer's standards and keep Vehicle(s) in reasonable condition at all
times.
2.1.12 CITY while providing the community bus activities addressed herein shall
comply, and assures the compliance of any third party contractor, with the
applicable laws and regulations relating to nondiscrimination on the basis of
disability:
1. Section 504 of the Rehabilitation Act of 1973, as amended (Section 504),
29 U.S. C. Section 794, prohibits discrimination on the basis of disability
by recipients of Federal financial assistance.
2. The Americans with Disabilities Act of 1990, as amended (ADA), 42
U.S.C. Sections 12101 et seq., prohibits discrimination against qualified
individuals with disabilities in all programs, activities, and services of
public entities, as well as imposes specific requirements on public and
private providers of transportation.
3. DOT Public Transportation Regulations implementing Section 504 and the
ADA. These regulations include DOT regulations, "Nondiscrimination on
the Basis of Handicap in Programs and Activities Receiving or Benefiting
from Federal Financial Assistance," 49 CFR Part 27, DOT regulations,
"Transportation Services for Individuals with Disabilities (ADA)," 49 CFR
Part 37, and Architectural and Transportation Barriers Compliance Board
(ATBCB)/DOT regulations, "Americans With Disabilities (ADA)
Accessibility Specifications for Transportation Vehicles," 36 CFR Part
1192 and 49 CFR Part 38, all as currently enacted or as may be amended
from time to time.
2.1.13 In accordance with Broward County Ordinance 92-8, CITY certifies by means of
Exhibit "B," which is attached hereto and incorporated herein by reference as if
set forth in full herein, that it will have a Drug-Free Workplace Program. In the
event CITY contracts with a third party to perform the services addressed herein,
such contractor shall comply with COUNTY's Drug-Free Workplace Program
requirements.
2.1.14 CITY agrees to participate in BCT's drug and alcohol testing program, or
establish and implement subject to BCT review and approval, its own drug and
alcohol testing program that complies with 49 CFR Part 655. In the event CITY
subcontracts all or part of the community bus services to a third party, a similar
requirement including review and approval by Contract Administrator must be
included in any subsequent agreement. CITY further agrees to certify, prior to
the commencement of services under this Agreement and annually thereafter,
compliance with current Federal Transit regulations to the BCT Director (a model
format for certifying compliance is attached as Exhibit "D").
8 RESOLUTION#2009-187
2.1.15 CITY agrees to prepare, maintain, and submit annual reports to COUNTY
summarizing its drug and alcohol testing program results from the previous year.
The annual reports covering the prior calendar year must be submitted to
COUNTY by a date determined by Contract Administrator, but no later than
February 15`h of each year. Additionally, CITY shall provide quarterly reports to
COUNTY summarizing its drug and alcohol testing results and shall permit
COUNTY to inspect its records during site visits, to ensure compliance with
program requirements.
2.1.16 CITY agrees that throughout the term of this Agreement the Broward County
Board of County Commissioners' official logo(s) and COUNTY-assigned
identification number shall be conspicuously displayed on the rear of the
Vehicle(s) at all times.
2.1.17 CITY shall maintain certain records of information and data in the format
prescribed by COUNTY. CITY shall supply the reports listed below to COUNTY
pursuant to the schedule as set forth below. Reports shall be transmitted to
COUNTY in a format that can be read and updated using standard software tools
compatible with COUNTY's system, such as Microsoft Excel, Microsoft Word and
Acrobat Reader.
Immediately:
Reports of all accidents/incidents (loss of life, injuries, stoppage, or major
disruption of service)
Monthly by the seventh (7) business day of each month:
Ridership report (# of passengers, revenue miles, Vehicle miles, per Vehicle)
Current roster of drivers
Revenue Vehicle System Failure (mechanical failure of Vehicle that occurs in
revenue service).
Fuel usage for revenue service Vehicles in gallons
Complaint summary as required in Article 3 herein
Yearly:
Vehicle inventory and mileage on each Vehicle
Current insurance certificate in accordance with COUNTY requirements
National Transit Database Operating Expenses Summary Form
9 RESOLUTION#2009-187
Safety Certification to COUNTY no later than February 15`h annually for the prior
calendar year period. The certification shall attest to compliance with the adopted
System Safety Security Program Plan (SPP), and the performance of safety
inspections on all Vehicles operated by CITY or its contractors. The Safety
Certifications shall comply with the standards set forth in Rule14-90, Florida
Administrate Code, Equipment and Operation Safety Standards for Bus Transit
Systems as currently in enacted or as may be amended from time to time.
2.1.18 CITY shall at all times have and maintain in proper working order a dedicated
TTY number.
2.1.19 In the event that the Vehicle(s) is not equipped with an audio/visual system to
automatically announce major intersections, destination points and transfer
points with other fixed routes, internally both audibly and on a signboard, the
operator shall use the internal announcement feature of the on-board public
address (PA) system to make the announcements set forth below. In the event
that the PA system is not available or is inoperable, the operator shall make the
following required announcements using his/her own voice loudly and clearly to
be heard by all passengers:
a. transfer points with other fixed-routes; and
b. other major intersections and destination points; and
C. intervals along a route to orient individuals with visual impairments or
other disabilities to his or her location, especially if there is a long distance
between other announcements; and
d. any stop requested by a passenger with a disability, even if it does not
meet any of the other criteria for announcement.
2.1.20 CITY shall be solely responsible to provide, during the term of this Agreement, a
high quality community bus service which shall include, but not be limited to, all
Vehicles, equipment, personnel, training, labor, and materials necessary to
provide the transportation, scheduling, dispatching, reporting, and monitoring of
the community bus service required herein throughout the term of this
Agreement.
2.1.21 CITY service shall connect with regular COUNTY bus routes and community bus
routes, as set forth in Exhibit "A."
2.1.22 CITY agrees to comply with 49 U.S.C. 5323(d) and 49 CFR Part 604, which
provide that recipients and subrecipients of FTA assistance are prohibited from
providing charter service using federally funded equipment or facilities if there is
at least one private charter operator willing and able to provide the service,
except under one of the exceptions set forth in 49 CFR Part 604. Any charter
10 RESOLUTION#2009-187
service provided under one of the exceptions must be "incidental," i.e., it must
not interfere with or detract from the provision of mass transportation.
2.1.23 CITY shall comply with the provisions of 69 U.S.C. 5323(f) and 49 CFR Part
605, and may not engage in school bus operations exclusively for the
transportation of students and school personnel in competition with private
school bus operators unless qualified under specified exemptions. When
operating exclusive school bus service under an allowable exemption, recipients
and subrecipients may not use federally funded equipment, Vehicles, or facilities
2.2 Maintenance of Vehicles. CITY shall have a continuing obligation to ensure safe and
proper mechanical condition and cleanliness of the Vehicle(s). CITY shall perform
additional cleaning and extermination for pests in the Vehicle(s). All equipment on the
Vehicle(s) shall be maintained in a fully and proper operable condition at all times (by
way of example, but not as a method of exclusion, "all equipment" shall include, but in
no way shall be limited to, fully functioning air-conditioning system, turn signals,
wheelchair lifts, etc.). CITY agrees to maintain all Vehicle(s) in first class appearance
and mechanical condition throughout the duration of this Agreement.
2.2.1 CITY shall maintain all Vehicle(s) and equipment in accordance with a preventive
maintenance schedule from the Vehicle manufacturer (Scheduled Maintenance
Guide). CITY shall conduct and document pre-trip and post-trip/Bus Defect
Vehicle inspections each day and shall utilize the form attached hereto attached
hereto as Exhibit "G." In addition, CITY shall perform all necessary maintenance
to ensure the continued and safe operation of all Vehicle(s).
2.2.2 COUNTY may conduct periodic inspections using its own or contracted service
personnel to ensure compliance with all maintenance and cleaning requirements
specified in this Agreement or in manufacturers' specification and any Vehicle not
determined by COUNTY to be acceptable will be removed from service by CITY
and all deficiencies corrected immediately. At COUNTY's request, CITY shall
take the Vehicle(s) to a location designated by Contract Administrator for
inspection.
2.2.3 CITY agrees to allow such on-board surveys and/or inspections as may be
requested by COUNTY. COUNTY shall have the right to inspect the Vehicle(s)
during CITY's regular hours or at any time in case of emergency to determine
whether CITY has complied with and is complying with the terms and conditions
of this Agreement. COUNTY may, at its discretion, require CITY to effect repairs.
2.3 CITY shall ensure that all personnel providing services pursuant to this Agreement
comply with all applicable federal, state, and COUNTY regulations, laws, and licensing
requirements prior to and at all times while operating Vehicle(s) or performing any
duties or functions relating to the requirements of this Agreement.
11 RESOLUTION#2009-187
2.4 Safety and Security Reporting Requirements. CITY shall notify Contract Administrator
as indicated below and shall submit a monthly report to Contract Administrator
summarizing the following:
(a) CITY shall notify Contract Administrator within two (2) hours of the occurrence
and provide a full incident report of any Maior Incident involving a transit Vehicle.
A Major Incident involves one of the following conditions:
$ A fatality due to an incident which shall include suicides, but does not
include deaths by natural causes, or death not associated with an incident
$ Injuries requiring immediate medical attention away from the scene for
one or more persons
$ Total property damage is equal to or in excess of $25,000.00
$ An evacuation due to life safety reasons
(b) A summary report of all Non-Maior Incidents involving a transit Vehicle. A Non-
Major Incident involves one of the following conditions:
$ Where one person is transported for off-site medical care
$ Total property damage is equal to or in excess of $7,500.00, but less than
$25,000.00
$ All non-arson fires not qualifying as Major Incidents
$ All crimes aboard transit Vehicle(s) and resulting arrests.
2.5 Minimum Standards. CITY agrees to comply with the following minimum standards:
(a) CITY, as a contracted public transit provider, shall comply with the
requirements of Rule 14-90, "Equipment and Operation Safety Standards for Bus
Transit Systems" Florida Administrative Code, as currently enacted or as may be
amended from time to time, (Rule 14-90).
(b) CITY agrees to comply with the following minimum standards:
(1) Develop and adopt a System Safety Program Plan (SSPP) and Security
Program Plan (SPP)) that complies, with the safety standards set forth in
Rule 14-90.
(2) Make the SSPP and SPP available for review and/or inspection at
least annually and upon request of COUNTY.
(3) Permit inspections, safety and security review by COUNTY and/ or
the state of Florida.
(4) Comply with CITY's adopted SSPP and ensure that safety
inspections have been performed no less than annually on all Vehicle(s)
operated pursuant to the provisions of this Agreement by person meeting
the requirements of Rule 14-90.
12 RESOLUTION#2009-187
(5) All Vehicle(s) shall be kept clean and orderly during all times
of active service.
(6) All accidents shall be reported immediately to the police.
(7) Vehicle(s) shall not be operated if the top or interior lights or
the headlights or taillights are not functioning properly. Likewise, a
Vehicle shall not be driven unless the brakes, steering mechanism, tires,
horn, windshield wipers, and side and rearview mirrors are in good
working order.
(8) Advertising, if allowed by COUNTY on any Vehicle, shall not
obstruct the driver's view and shall not obstruct the Vehicle's top lights or
other lights. No Vehicle shall have within it, or on its exterior, any sign
which encourages, advertises for, or otherwise solicits tips.
(9) All Vehicle(s) shall be equipped with rearview mirror and
side mirrors on driver's and passenger's side.
(10) Speedometer shall be properly installed, in good working
order, and exposed to the view of both the driver and the passenger(s).
(11) The interior of the Vehicle(s) shall be clean, sanitary, free
from torn or damaged upholstery or floor coverings and from damages or
broken seats.
(12) Door hinges and latches shall be in good mechanical
working order and all doors shall operate easily and close securely.
(13) Vehicle(s) shall be structurally sound and operate with a
minimum of noise, vibration, and visible exhaust fumes.
(14) The body, fenders, doors trim and grill of the Vehicle(s) shall
be free from cracks, breaks and dents, and painted.
(15) Vision shall be unobstructed on all four (4) sides of the Vehicle(s).
SERVICES TO BE PROVIDED BY COUNTY
2.6 EQUIPMENT
2.6.1 COUNTY shall lease to CITY two (2) wheelchair accessible, passenger
Vehicle(s), as described on Exhibit "E" to be used in regular route service as set
forth in Exhibit "A." Such Vehicle(s) shall comply with the Americans with
Disabilities Act of 1990 and all applicable federal and state regulations. These
Vehicle(s) shall be leased to CITY for Ten Dollars ($10.00) per Vehicle, per year.
13 RESOLUTION#2009-187
Prior to the acceptance of the Vehicle(s) by CITY, CITY at its own cost shall have
the right to inspect, or cause to be inspected, the Vehicle(s) by a mechanic
designated by CITY.
2.6.2 Vehicle(s) used by CITY, or its subcontractor, to provide services pursuant to this
Agreement, shall be equipped with bicycle racks or similar device used to
transport non-motorized bicycles.
2.6.3 COUNTY shall provide the manufacturers' warranties and maintenance shop
manuals to CITY.
2.6.4 COUNTY shall provide CITY with sufficient bus stop signs and sign posts to
cover the route described in Exhibit "A." Bus stop sign installation shall be the
responsibility of CITY and must comply with Roadway and Traffic Design
Standards Index #11865, published by the Florida Department of Transportation.
In the event, CITY desires to supply its own signage at its own expense such
signage must be approved by COUNTY.
2.6.5 COUNTY, in its sole discretion, acting through its Contract Administrator, may
authorize a replacement Vehicle(s). In the event that a Vehicle(s) is replaced,
Exhibit "E" shall be updated. CITY's use of any replacement Vehicle(s) shall be
subject to all terms and conditions of this Agreement.
2.7 TECHNICAL ASSISTANCE
2.7.1 COUNTY shall provide Florida Commercial Driver's License operators hired by
CITY or its contractors with training in passenger relations, rules of the road, and
transit system information. All Florida Commercial Driver's License operators
shall be required to attend and successfully complete COUNTY's training
program prior to operating the Vehicle(s) addressed herein. This requirement
shall extend to any and all Florida Commercial Driver's License operators
employed at any time during the term of this Agreement. In the event training is
not available, Contract Administrator may provide a written extension, not to
exceed sixty (60) days from the date the driver begins operating the Vehicle(s),
for Florida Commercial Driver's License operators to attend and complete
COUNTY's training.
2.7.2 COUNTY shall assist CITY staff with any aspect of planning and scheduling of
public transit routing that CITY might request.
2.7.3 COUNTY shall print and provide CITY with bus route timetables sufficient to
inform CITY residents and passengers of service made available as described in
Exhibit "A" or any modification thereto.
14 RESOLUTION#2009-187
2.8 CITY acknowledges and agrees that Contract Administrator, unless specifically
authorized herein, has no authority to make changes that would increase, decrease, or
otherwise modify the Scope of Services to be provided under this Agreement.
2.9 EMERGENCY SERVICE.
2.9.1 In addition to the scheduled community bus service as set forth in Exhibit "A,"
CITY, upon direction of BCT, may be required to provide Emergency Service.
Emergency Service may include, but shall not be limited to, evacuation and
reverse evacuation transportation for individuals, as well as any other
transportation deemed necessary by COUNTY staff. The parties agree that
extreme conditions or catastrophic events may not affect the operations of all
cities equally and at COUNTY's discretion, COUNTY may require CITY to
authorize the use of Vehicle(s) leased to CITY herein by any other city that that
has an agreement with COUNTY for Community Bus Service. CITY shall not be
entitled to any compensation for the use of any Vehicle that is utilized by another
CITY as set forth above. Fares shall not be collected from passengers during
Emergency Service.
2.9.2 Suspension of Operations: CITY may suspend all or a portion of service when
said performance is made impossible by inclement weather, hurricane,
earthquake, fire, flood, cloudburst, cyclone, or other natural phenomenon of a
severe and unusual nature, act of a public enemy, epidemic, quarantine,
restriction, embargo, or any other unforeseeable cause beyond control of CITY or
its contractor. CITY shall request verbal or written approval of COUNTY prior to
suspending operations.
2.9.3 Emergency Response Plan: CITY shall have a plan, updated on an annual basis,
to maintain operations during the occurrence of emergencies such as, but not
limited to, natural disasters and acts of terrorism. Plans for backup
telecommunications such as cellular phones, backup generators and backup fuel
sources and other alternatives shall be detailed in a written plan and submitted to
COUNTY thirty (30) days from the effective date of this Agreement.
2.10 ADVERTISING
2.10.1 CITY shall not place advertisements of any kind or nature on any Vehicle(s)
without the prior written approval of Contract Administrator. In the event that
advertisements are allowed, all advertising shall conform to the Broward County
Transit Division Advertising Guidelines and Regulations, as currently enacted or
as may be amended from time to time. Additionally, CITY, subject to approval of
Contract Administrator, may obtain advertising services pursuant to the terms
and conditions of the agreement between Broward County and Direct Media, Inc.
for Transit Advertising Program dated April 28, 2009.
15 RESOLUTION#2009-187
ARTICLE 3
COMPLAINTS
3.1 CITY shall respond to complaints regarding the quality of service brought by patrons or
by COUNTY on its own initiative or otherwise. Such response shall be provided by
CITY verbally within two (2) calendar days of complaint and in writing within five (5)
calendar days. CITY shall copy Contract Administrator on all correspondence. At the
request of COUNTY, CITY shall meet with Contract Administrator to review any
complaints or concerns and to promptly correct any deficiencies. Contract
Administrator's determination as to quality of operation or services shall be conclusive,
and curative measures shall be implemented by CITY as expeditiously as possible.
3.1.1 CITY shall be required to resolve all written and oral complaints received from
the public or COUNTY. CITY shall be required to conduct the necessary
investigation, impose disciplinary action on employees where appropriate and
respond in writing to each complainant with the results of such investigation
and/or disciplinary action. Copies of all such correspondence shall be provided to
Contract Administrator on a weekly basis.
3.1.2 CITY shall submit a monthly report to Contract Administrator summarizing
complaints and damage or other claims received during the preceding month as
well as the resolution, if known, of such matters. In addition, CITY shall prepare
and furnish such other reports as Contract Administrator may, from time to time,
require.
ARTICLE 4
TERM AND TIME OF PERFORMANCE
4.1 The term of this Agreement shall begin on the date it is fully executed by both parties
and shall end on September 30, 2012; the term may be extended for up to two (2)
additional one (1) year periods upon written approval of Contract Administrator ninety
days prior to the expiration date of the current term. If the term of this Agreement
extends beyond a single fiscal year of COUNTY, the continuation of this Agreement
beyond the end of any fiscal year shall be subject to the availability of funds from
COUNTY in accordance with Chapter 129, Florida Statutes.
4.2 Prior to beginning the performance of any services under this Agreement, CITY must
receive a Notice to Proceed from Contract Administrator.
ARTICLE 5
FINANCIAL ASSISTANCE
5.1 COUNTY agrees to pay CITY Fifteen Dollars ($15.00) per revenue service hour, per
vehicle in revenue service under the terms of this Agreement, during the term of this
Agreement. CITY shall submit its vehicle revenue service hour calculations on the form
and pursuant to instructions prescribed by Contract Administrator as set forth in Exhibit
16 RESOLUTION#2009-187
"F" attached hereto and made a part hereof. The funds addressed herein shall be used
by CITY solely for the purpose of maintaining, operating, and properly equipping the
vehicle(s) and for no other purpose. On the effective date of this Agreement, COUNTY
shall pay CITY, in advance, the anticipated amount due through the first quarter. All
payments for subsequent quarters, if applicable, shall be paid in advance on a quarterly
basis.
5.1.1 Advance payments made by COUNTY to CITY for any quarter based on
projected revenue service hours will be adjusted by COUNTY in future quarterly
payments based on the actual revenue hours achieved.
5.2 The name of the official payee to whom COUNTY shall issue checks shall be the CITY
OF DANIA BEACH.
5.3 METHOD OF BILLING AND PAYMENT
5.3.1 CITY shall submit invoices for compensation, in advance, on a quarterly basis.
To be deemed proper, all invoices must comply with the requirements set forth in
this Agreement and include a list of all Florida commercial licensed drivers,
including drivers' license numbers, for each individual permitted to operate the
Vehicle(s) under this Agreement. Each invoice must be submitted on the form
and pursuant to instructions prescribed by Contract Administrator as set forth in
Exhibit "F" attached hereto and made a part hereof.
ARTICLE 6
CHANGES IN SCOPE OF SERVICES
6.1 Except for those changes permitted in Section 2.1 herein, any change to the Scope of
Services must be accomplished by a written amendment, executed by the parties in
accordance with Section 10.16 below.
6.2 Any appreciable changes in the level of services, as determined by Contract
Administrator's sole discretion, to be provided by CITY as set forth herein shall only be
implemented after COUNTY and CITY have entered into a modified agreement
describing the changed services. Nothing in this Agreement precludes the possibility of
COUNTY once again providing public transportation services if ridership levels warrant
expanded service.
6.3 The parties agree to renegotiate this Agreement if applicable federal, state, or local laws
or revisions of said laws make changes in the Agreement necessary or desirable, as
determined by Contract Administrator.
ARTICLE 7
INDEMNIFICATION / GOVERNMENTAL IMMUNITY
7.1 Nothing herein is intended to serve as a waiver of sovereign immunity by any party nor
shall anything included herein be construed as consent to be sued by third parties in
17 RESOLUTION#2009-187
any matter arising out of this Agreement or any other contract. CITY is a state agency
or political subdivision as defined in Chapter 768.28, Florida Statutes, and agrees to be
fully responsible for the acts and omissions of its agents or employees to the extent
permitted by law.
ARTICLE 8
INSURANCE
8.1 The parties hereto acknowledge that CITY is an entity subject to Section 768.28, Florida
Statutes, and CITY shall furnish Contract Administrator with written verification of
liability protection in accordance with state law prior to final execution of said
agreement. CITY shall institute and maintain a fiscally sound and prudent risk
management program with regard to its obligations under this Agreement in accordance
with the provisions of Section 768.28, Florida Statutes.
8.2 If CITY contracts with a third party to provide the transportation service addressed
herein, any contract with such third party shall include the following provisions:
Indemnification: CITY's contractor shall at all times hereafter indemnify, hold harmless
and, at County Attorney's option, defend or pay for an attorney selected by the County
Attorney to defend COUNTY, its officers, agents, servants, and employees from and
against any and all causes of action, demands, claims, losses, liabilities and
expenditures of any kind, including attorney fees, court costs, and expenses, caused or
alleged to be caused by intentional or negligent act of, or omission of, CITY's contractor,
its employees, agents, servants, or officers, or accruing, resulting from, or related to the
subject matter of this Agreement including, without limitation, any and all claims, losses,
liabilities, expenditures, demands or causes of action of any nature whatsoever resulting
from injuries or damages sustained by any person or property. In the event any lawsuit
or other proceeding is brought against COUNTY by reason of any such claim, cause of
action or demand, CITY's contractor shall, upon written notice from COUNTY, resist and
defend such lawsuit or proceeding by counsel satisfactory to COUNTY or, at COUNTY's
option, pay for an attorney selected by County Attorney to defend COUNTY. The
provisions and obligations of this section shall survive the expiration or earlier
termination of this Agreement. To the extent considered necessary by Contract
Administrator and County Attorney, any sums due CITY's contractor under this
Agreement may be retained by COUNTY until all of COUNTY's claims for
indemnification pursuant to this Agreement have been settled or otherwise resolved;
and any amount withheld shall not be subject to payment of interest by COUNTY.
Insurance: CITY's contractor shall at all times during the term of this Agreement keep
and maintain in full force and effect, at contractor's sole cost and expense, insurance of
the types and amounts as set forth on Exhibit "C," a copy of which is attached hereto
and incorporated herein by reference as if set forth in full, and shall name COUNTY as
an additional insured.
18 RESOLUTION#2009-187
Provisions Applicable to Insurance: At or prior to the commencement of CITY's
performance pursuant to the provisions of any agreement with CITY involving the
Vehicle(s) provided hereunder, CITY shall deliver the original certificate of
insurance required herein to COUNTY. CITY shall pay the premiums for all
insurance required by this Agreement. CITY shall cause all policies of insurance
required by this Agreement to be renewed from time to time so that at all times
the insurance protection required by this Agreement shall continuously exist. The
policy shall not be canceled or materially changed without the giving of at least
thirty (30) days' prior written notice thereof to COUNTY, and in such event, a
policy pursuant to the above terms must be substituted.
ARTICLE 9
TERMINATION
9.1 This Agreement may be terminated for cause by action of the Board or by CITY upon
thirty (30) days' written notice by the party that elected to terminated, or for convenience
by action of Board upon not less than sixty (60) days' written notice by Contract
Administrator. This Agreement may also be terminated by Contract Administrator upon
such notice as Contract Administrator deems appropriate under the circumstances in
the event Contract Administrator determines that termination is necessary to protect the
public health, safety, or welfare.
9.2 Termination of this Agreement for cause shall include, but not be limited to, failure to
suitably perform the work, failure to continuously perform the work in a manner
calculated to meet or accomplish the objectives of COUNTY as set forth in this
Agreement, or multiple breach of the provisions of this Agreement notwithstanding
whether any such breach was previously waived or cured.
9.3 Notice of termination shall be provided in accordance with the "NOTICES" section of
this Agreement except that notice of termination by Contract Administrator which
Contract Administrator deems necessary to protect the public health, safety, or welfare
may be verbal notice which shall be promptly confirmed in writing in accordance with
the "NOTICES" section of this Agreement.
9.4 CITY acknowledges and agrees that Ten Dollars ($10.00) of the compensation to be
paid by COUNTY, the adequacy of which is hereby acknowledged by CITY, is given as
specific consideration to CITY for COUNTY's right to terminate this Agreement for
convenience.
9.5 Upon termination of this Agreement for whatever reason, CITY shall return the Vehicle
leased herein to COUNTY within seven (7) days of the termination date. CITY shall
return the equipment to COUNTY in the condition it was received at the onset of this
Agreement, normal wear and tear excepted. CITY's obligation to return the equipment
to COUNTY in the condition it was received shall include the removal of any painting or
wrapping of the Vehicle for advertisement purposes. Any costs necessary to restore
and/or prepare the Vehicle for return to COUNTY shall be the sole responsibility of
19 RESOLUTION#2009-187
CITY. COUNTY, through its Maintenance Transit Manager, shall have the right to
inspect and to approve the condition of the Vehicle prior to acceptance and should the
Maintenance Transit Manager determine that the Vehicle is not in the proper condition,
CITY shall at its sole cost and expense remedy any and all deficiencies indentified by
the Maintenance Transit Manager.
ARTICLE 10
MISCELLANEOUS
10.1 RIGHTS IN DOCUMENTS AND WORK
Any and all reports, photographs, surveys, and other data and documents provided or
created in connection with this Agreement are and shall remain the property of
COUNTY; and, if a copyright is claimed, CITY grants to COUNTY a non-exclusive
license to use the copyrighted item(s) indefinitely, to prepare derivative works, and to
make and distribute copies to the public. In the event of termination of this Agreement,
any reports, photographs, surveys, and other data and documents prepared by CITY,
whether finished or unfinished, shall become the property of COUNTY and shall be
delivered by CITY to Contract Administrator within seven (7) days of termination of this
Agreement by either party. Any compensation due to CITY shall be withheld until all
documents are received as provided herein.
10.2 AUDIT RIGHT AND RETENTION OF RECORDS
COUNTY shall have the right to audit the books, records, and accounts of CITY and its
subcontractors that are related to this Agreement. CITY and its subcontractors shall
keep such books, records, and accounts as may be necessary in order to record
complete and correct entries related to the Agreement. All books, records, and
accounts of CITY and its subcontractors shall be kept in written form, or in a form
capable of conversion into written form within a reasonable time, and upon request to
do so, CITY or its subcontractor, as applicable, shall make same available at no cost to
COUNTY in written form.
CITY and its subcontractors shall preserve and make available, at reasonable times for
examination and audit by COUNTY, all financial records, supporting documents,
statistical records, and any other documents pertinent to this Agreement for the required
retention period of the Florida Public Records Act, Chapter 119, Florida Statutes, as
may be amended from time to time, if applicable, or, if the Florida Public Records Act is
not applicable, for a minimum period of three (3) years after termination of this
Agreement. If any audit has been initiated and audit findings have not been resolved at
the end of the retention period or three (3) years, whichever is longer, the books,
records, and accounts shall be retained until resolution of the audit findings. If the
Florida Public Records Act is determined by COUNTY to be applicable to CITY's and its
subcontractors' records, CITY and its subcontractors shall comply with all requirements
thereof; however, no confidentiality or non-disclosure requirement of either federal or
state law shall be violated by CITY or its subcontractors. Any incomplete or incorrect
20 RESOLUTION#2009-187
entry in such books, records, and accounts shall be a basis for COUNTY's disallowance
and recovery of any payment upon such entry.
CITY shall, by written contract, require its subcontractors to agree to the requirements
and obligations of this Section 10.2.
10.3 EEO COMPLIANCE
CITY shall not unlawfully discriminate on the basis of race, color, national origin, sex,
religion, age, marital status, political affiliation, familial status, disability, sexual
orientation, pregnancy, or gender identity and expression in the performance of this
Agreement, the solicitation for or purchase of goods or services relating to this
Agreement, or in subcontracting work in the performance of this Agreement and shall
not otherwise unlawfully discriminate in violation of the Broward County Code, Chapter
16'Y2, as may be amended from time to time. CITY shall include the foregoing or similar
language in its contracts with any subcontractors or subconsultants, except that any
project assisted by the U.S. Department of Transportation funds shall comply with the
non-discrimination requirements in 49 C.F.R. Parts 21 and 26, as amended. Failure to
comply with the foregoing requirements is a material breach of this Agreement, which
may result in the termination of this Agreement or such other remedy as COUNTY
deems appropriate.
CITY shall not unlawfully discriminate against any person in its operations and activities
or in its use or expenditure of funds in fulfilling its obligations under this Agreement.
CITY shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act (ADA) in the course of providing any services funded by COUNTY,
including Titles I and 11 of the ADA (regarding nondiscrimination on the basis of
disability), and all applicable regulations, guidelines, and standards. In addition, CITY
shall take affirmative steps to ensure nondiscrimination in employment against disabled
persons.
By execution of this Agreement, CITY represents that it has not been placed on the
discriminatory vendor list (as provided in Section 287.134, Florida Statutes, as may be
amended from time to time). COUNTY hereby materially relies on such representation
in entering into this Agreement. An untrue representation of the foregoing shall entitle
COUNTY to terminate this Agreement and recover from CITY all monies paid by
COUNTY pursuant to this Agreement, and may result in debarment from COUNTY's
competitive procurement activities.
Consistent with the provisions of the Title VI, FTA Circular 4702.1A, CITY, as a grant
recipient of FTA assisted funds, CITY shall ensure that transit services and related
benefits shall be distributed in an equitable manner with no discrimination on the
grounds of race, color, or national origin. Accordingly, CITY shall provide information to
the public regarding its Title VI complaint procedures and apprise members of the public
of protections against discrimination afforded to them by Title VI, including, but not
limited to posting notices on its vehicle(s), website, and bus schedules.
21 RESOLUTION#2009-187
10.4 PUBLIC ENTITY CRIME ACT
CITY represents that the execution of this Agreement will not violate the Public Entity
Crime Act, Section 287.133, Florida Statutes, as may be amended from time to time,
which essentially provides that a person or affiliate who is a contractor, consultant, or
other provider and who has been placed on the convicted vendor list following a
conviction for a public entity crime may not submit a bid on a contract to provide any
goods or services to COUNTY, may not submit a bid on a contract with COUNTY for the
construction or repair of a public building or public work, may not submit bids on leases
of real property to COUNTY, may not be awarded or perform work as a contractor,
supplier, subcontractor, or consultant under a contract with COUNTY, and may not
transact any business with COUNTY in excess of the threshold amount provided in
Section 287.017, Florida Statutes, as may be amended from time to time, for category
two purchases for a period of 36 months from the date of being placed on the convicted
vendor list. Violation of this section shall result in termination of this Agreement and
recovery of all monies paid by COUNTY pursuant to this Agreement, and may result in
debarment from COUNTY's competitive procurement activities.
In addition to the foregoing, CITY further represents that there has been no
determination, based on an audit, that it committed an act defined by Section 287.133,
Florida Statutes, as a "public entity crime" and that it has not been formally charged with
committing an act defined as a "public entity crime" regardless of the amount of money
involved or whether CITY has been placed on the convicted vendor list.
10.5 INDEPENDENT CONTRACTOR
CITY is an independent contractor under this Agreement. Services provided by CITY
pursuant to this Agreement shall be subject to the supervision of CITY. In providing
such services, neither CITY nor its agents shall act as officers, employees, or agents of
COUNTY. No partnership, joint venture, or other joint relationship is created hereby.
COUNTY does not extend to CITY or CITY's agents any authority of any kind to bind
COUNTY in any respect whatsoever.
10.6 THIRD PARTY BENEFICIARIES
Neither CITY nor COUNTY intends to directly or substantially benefit a third party by
this Agreement. Therefore, the parties agree that there are no third party beneficiaries
to this Agreement and that no third party shall be entitled to assert a right or claim
against either of them based upon this Agreement.
10.7 NOTICES
Whenever either party desires to give notice to the other, such notice must be in writing,
sent by certified United States Mail, postage prepaid, return receipt requested, or sent
by commercial express carrier with acknowledgement of delivery, or by hand delivery
22 RESOLUTION#2009-187
with a request for a written receipt of acknowledgment of delivery, addressed to the
party for whom it is intended at the place last specified. The place for giving notice shall
remain the same as set forth herein until changed in writing in the manner provided in
this section. For the present, the parties designate the following:
FOR COUNTY:
Director
Broward County Transit Division
3201 West Copans Road
Pompano Beach, FL 33069
FOR CITY:
City of Dania Beach
10.8 ASSIGNMENT AND PERFORMANCE
Neither this Agreement nor any right or interest herein shall be assigned, transferred, or
encumbered without the written consent of the other party. In addition, CITY shall not
subcontract any portion of the work required by this Agreement, except as authorized
herein. COUNTY may terminate this Agreement, effective immediately, if there is any
assignment, or attempted assignment, transfer, or encumbrance, by CITY of this
Agreement or any right or interest herein without COUNTY's written consent.
CITY represents that each person who will render services pursuant to this Agreement
is duly qualified to perform such services by all appropriate governmental authorities,
where required, and that each such person is reasonably experienced and skilled in the
area(s) for which he/she will render his/her services.
CITY shall perform its duties, obligations, and services under this Agreement in a skillful
and respectable manner. The quality of CITY's performance and all interim and final
product(s) provided to or on behalf of COUNTY shall be comparable to the best local
and national standards.
10.9 CONFLICTS
Neither CITY nor its employees shall have or hold any continuing or frequently recurring
employment or contractual relationship that is substantially antagonistic or incompatible
with CITY's loyal and conscientious exercise of judgment and care related to its
performance under this Agreement.
23 RESOLUTION#2009-187
CITY further agrees that none of its officers or employees shall, during the term of this
Agreement, serve as an expert witness against COUNTY in any legal or administrative
proceeding in which he, she, or CITY is not a party, unless compelled by court process.
Further, CITY agrees that such persons shall not give sworn testimony or issue a report
or writing, as an expression of his or her expert opinion, which is adverse or prejudicial
to the interests of COUNTY in connection with any such pending or threatened legal or
administrative proceeding unless compelled by court process. The limitations of this
section shall not preclude CITY or any persons in any way from representing
themselves, including giving expert testimony in support thereof, in any action or in any
administrative or legal proceeding.
In the event CITY is permitted pursuant to this Agreement to utilize subcontractors to
perform any services required by this Agreement, CITY agrees to require such
subcontractors, by written contract, to comply with the provisions of this section to the
same extent as CITY.
10.10 MATERIALITY AND WAIVER OF BREACH
COUNTY and CITY agree that each requirement, duty, and obligation set forth herein
was bargained for at arms'-length and is agreed to by the parties in exchange for quid
pro quo, that each is substantial and important to the formation of this Agreement and
that each is, therefore, a material term hereof.
COUNTY's failure to enforce any provision of this Agreement shall not be deemed a
waiver of such provision or modification of this Agreement. A waiver of any breach of a
provision of this Agreement shall not be deemed a waiver of any subsequent breach
and shall not be construed to be a modification of the terms of this Agreement.
10.11 COMPLIANCE WITH LAWS
CITY shall comply with all applicable federal, state, and local laws, codes, ordinances,
rules, and regulations in performing its duties, responsibilities, and obligations pursuant
to this Agreement.
10.12 SEVERANCE
In the event a portion of this Agreement is found by a court of competent jurisdiction to
be invalid, the remaining provisions shall continue to be effective unless COUNTY or
CITY elects to terminate this Agreement. An election to terminate this Agreement
based upon this provision shall be made within seven (7) days after the finding by the
court becomes final.
10.13 JOINT PREPARATION
Each party and its counsel have participated fully in the review and revision of this
Agreement and acknowledge that the preparation of this Agreement has been their joint
24 RESOLUTION#2009-187
effort. The language agreed to expresses their mutual intent and the resulting document
shall not, solely as a matter of judicial construction, be construed more severely against
one of the parties than the other. The language in this Agreement shall be interpreted
as to its fair meaning and not strictly for or against any party.
10.14 PRIORITY OF PROVISIONS
If there is a conflict or inconsistency between any term, statement, requirement, or
provision of any exhibit attached hereto, any document or events referred to herein, or
any document incorporated into this Agreement by reference and a term, statement,
requirement, or provision of Articles 1 through 10 of this Agreement, the term,
statement, requirement, or provision contained in Articles 1 through 10 shall prevail and
be given effect.
10.15 JURISDICTION, VENUE, WAIVER OF JURY TRIAL
This Agreement shall be interpreted and construed in accordance with and governed by
the laws of the state of Florida. All parties agree and accept that jurisdiction of any
controversies or legal problems arising out of this Agreement, and any action involving
the enforcement or interpretation of any rights hereunder, shall be exclusively in the
state courts of the Seventeenth Judicial Circuit in Broward County, Florida, and venue
for litigation arising out of this Agreement shall be exclusively in such state courts,
forsaking any other jurisdiction which either party may claim by virtue of its residency or
other jurisdictional device. BY ENTERING INTO THIS AGREEMENT, CITY AND
COUNTY HEREBY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE
TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO THIS AGREEMENT.
10.16 AMENDMENTS
No modification, amendment, or alteration in the terms or conditions contained herein
shall be effective unless contained in a written document prepared with the same or
similar formality as this Agreement and executed by the Board and CITY or others
delegated authority to or otherwise authorized to execute same on their behalf.
10.17 PRIOR AGREEMENTS
This document represents the final and complete understanding of the parties and
incorporates or supersedes all prior negotiations, correspondence, conversations,
agreements, and understandings applicable to the matters contained herein. The
parties agree that there is no commitment, agreement, or understanding concerning the
subject matter of this Agreement that is not contained in this written document.
Accordingly, the parties agree that no deviation from the terms hereof shall be
predicated upon any prior representation or agreement, whether oral or written.
10.18 HIPAA COMPLIANCE
25 RESOLUTION#2009-187
It is expressly understood by the parties that COUNTY personnel and/or its agents have
access to protected health information (hereinafter known as "PHI") that is subject to the
requirements of 45 CFR 164.502 and related regulations. In the event CITY is
considered by COUNTY to be a covered entity or business associate and/or is required
to comply with the Health Insurance Portability and Accountability Act of 1996
(hereinafter known as "HIPAA"), CITY shall fully protect individually identifiable health
information as required by HIPAA and, if requested by COUNTY, shall execute a
Business Associate Agreement in the form attached hereto as Exhibit "H" for the
purpose of complying with HIPAA. Where required, CITY shall handle and secure such
PHI in compliance with HIPAA and its related regulations and, if required by HIPAA or
other laws, include in its "Notice of Privacy Practices" notice of CITY's and COUNTY's
uses of client's PHI. The requirement to comply with this provision and HIPAA shall
survive the expiration or earlier termination of this Agreement. COUNTY hereby
authorizes the County Administrator to sign Business Associate Agreements on its
behalf.
10.19 PAYABLE INTEREST
10.19.1 Payment of Interest. Except as required by the Broward County Prompt
Payment Ordinance, COUNTY shall not be liable for interest for any
reason, whether as prejudgment interest or for any other purpose, and in
furtherance thereof CITY waives, rejects, disclaims and surrenders any
and all entitlement it has or may have to receive interest in connection with
a dispute or claim based on or related to this Agreement.
10.19.2. Rate of Interest. In any instance where the prohibition or limitations of
Section 10.19.1 are determined to be invalid or unenforceable, the annual
rate of interest payable by COUNTY under this Agreement, whether as
prejudgment interest or for any other purpose, shall be .025 percent
simple interest (uncompounded).
10.20 INCORPORATION BY REFERENCE
The truth and accuracy of each "Whereas" clause set forth above is acknowledged by
the parties. The attached Exhibits A, B, C, D, E, F, G and H are incorporated into and
made a part of this Agreement.
10.21 REPRESENTATION OF AUTHORITY
Each individual executing this Agreement on behalf of a party hereto hereby represents
and warrants that he/she is, on the date he/she signs this Agreement, duly authorized
by all necessary and appropriate action to execute this Agreement on behalf of such
party and does so with full legal authority.
10.22 MULTIPLE ORIGINALS
26 RESOLUTION#2009-187
Multiple copies of this Agreement may be executed by all parties, each of which,
bearing original signatures, shall have the force and effect of an original document.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
27 RESOLUTION#2009-187
IN WITNESS WHEREOF, the parties hereto have made and executed this Interlocal
Agreement: BROWARD COUNTY through its BOARD OF COUNTY COMMISSIONERS,
signing by and through its Mayor or Vice-Mayor, authorized to execute same by Board action
on the day of , 2009, and CITY, signing by and through its
duly authorized to execute same.
COUNTY:
ATTEST: BROWARD COUNTY, by and through
its Board of County Commissioners
Broward County Administrator, as By
Ex-officio Clerk of the Broward County Mayor
Board of County Commissioners
day of
Insurance requirements Approved as to form by
approved by Broward County Office of County Attorney
Risk Management Division Broward County, Florida
JEFFREY J. NEWTON, County Attorney
Governmental Center, Suite 423
115 South Andrews Avenue
By Fort Lauderdale, Florida 33301
Telephone: (954) 357-7600
Telecopier: (954) 357-6968
By
Sharon V. Thorsen
Senior Assistant County Attorney
28 RESOLUTION#2009-187
INTERLOCAL AGREEMENT BETWEEN BROWARD COUNTY AND CITY OF DANIA BEACH
FOR USE OF VEHICLES FOR COMMUNITY BUS SERVICE
CITY:
Approved by Resolution No.
Dated
ATTEST: CITY OF
By:
City Clerk City Manager
day of , 20 .
(CORPORATE SEAL)
APPROVED AS TO FORM:
By:
City Attorney
SVT:slw
8/26/09
2009DAN IABCHstanda rd
08-114.20
29 RESOLUTION#2009-187
EXHIBIT H
BUSINESS ASSOCIATE ADDENDUM TO AGREEMENT BETWEEN
BROWARD COUNTY, FLORIDA
AND
[INSERT COMPANY NAME HERE]
FOR
[INSERT AGREEMENT DESCRIPTION]
This BUSINESS ASSOCIATE ADDENDUM amends the following Agreement by
and between Broward County, Florida (hereinafter called "County"), and [INSERT
COMPANY NAME HERE] (hereinafter called 'Business Associate"), [INSERT
COMPANY ADDRESS HERE], for [INSERT AGREEMENT DESCRIPTION HERE]:
[Date of original contract and date of most recent amendment], [hereinafter the "Existing
Agreement."]
IN CONJUNCTION WITH the Existing Agreement, this Business Associate
Addendum is made and entered into by and between the County and the Business
Associate.
WHEREAS, the County and the Business Associate have previously entered into
an Agreement related to the operation of certain activities related to the provision of
health care;
WHEREAS, the operation of such programs is subject to the federal Health
Insurance Portability and Accountability Act of 1996 (HIPAA);
WHEREAS, the requirements of HIPAA mandate that certain responsibilities of
contractors with access to Protected Health Information as defined under HIPAA must
be documented through a written agreement;
WHEREAS, the County and the Business Associate desire to comply with the
requirements of HIPAA and acknowledge respective responsibilities;
NOW, THEREFORE, the parties enter into this Business Associate Addendum
for the consideration set out below, all of which is deemed to be good and sufficient
consideration in order to make this Business Associate Addendum a binding legal
instrument.
Section 1: Definitions.
All terms used in this Addendum not otherwise defined shall have the meaning
as those terms in 45 CFR , 164 [hereinafter called, the "HIPAA Privacy Rule"].
Section 2: Obligations and Activities of the Business Associate.
2.1 Business Associate agrees to not use or disclose Protected Health Information
other than as permitted or required by this special agreement or as required by
law.
2.2 Business Associate agrees to use appropriate safeguards to prevent use or
disclosure of the Protected Health Information other than as permitted or required
by this Addendum or as required by law.
2.3 Business Associate agrees to mitigate, to the extent possible, any harmful effect
that is known to Business Associate of a use or disclosure of Protected Health
Information by Business Associate in violation of the requirements of this
Addendum.
2.4 Business Associate agrees to report to the County any use or disclosure of the
Protected Health Information not provided for by this Addendum of which it
becomes aware.
2.5 Business Associate agrees to ensure that any agent, including a subcontractor,
to whom it provides Protected Health Information received from the County or
created or received on behalf of the County by the Business Associate, agrees to
the same restrictions and conditions that apply through this Addendum to the
Business Associate with respect to such information.
2.6 Business Associate agrees to provide access to the County to all Protected
Health Information in Designated Record Sets in a timely manner in order to
meet the requirements under 45 CFR , 164.524.
2.7 Business Associate agrees to make any amendments to Protected Health
Information in a Designated Record Set as directed or agreed to by the County
pursuant to 45 CFR - 164.526 in a timely manner.
2.8 Business Associate agrees to make internal practices, books, and records,
including policies and procedures and Protected Health Information, relating to
the use and disclosure of Protected Health Information received from the County
or created or received on behalf of the County available to the County or to the
Secretary of Health and Human Services or designee within five business days
for the purposes of determining the Business Associate's compliance with the
Privacy Rule.
2.9 Business Associate agrees to document such disclosures of Protected Health
Information and information related to such disclosures as would be required for
the County to respond to an individual for an accounting of disclosures of
Protected Health Information in accordance with 45 CFR , 164.528.
31 RESOLUTION#2009-187
2.10 Business Associate agrees to provide the County, or an individual under
procedures approved by the County, information and documentation collected in
accordance with the preceding paragraph to respond to an individual requesting
an accounting for disclosures as provided under 45 CFR , 164.528.
Section 3: Permitted Uses and Disclosures.
3.1 Except as otherwise limited in this Addendum, Business Associate may use or
disclose Protected Health Information to perform functions, activities, or services
for, or on behalf of, the County as specified in the Existing Agreement, provided
that such use or disclosure would not violate the Privacy Rule if done by the
County or the minimum necessary policies and procedures of the County that are
communicated to the Business Associate in writing.
3.2 Except as otherwise limited in this Addendum, Business Associate may use
Protected Health Information for the proper management and administration of
the Business Associate or to carry out the legal responsibilities of the Business
Associate.
3.3 Except as otherwise limited in this Addendum, Business Associate may use
Protected Health Information to provide Data Aggregation services to the County
as permitted by 42 CFR , 164.504 (e)(2)(i)(B).
3.4 Business Associate may use Protected Health Information to report violations of
law to appropriate federal and state authorities, consistent with 42 CFR
164.504 0)(1).
Section 4: Obligations of the County.
4.1 The County shall notify Business Associate of any limitations in its notice of
privacy practices in accordance with 45 CFR , 164.520, to the extent that such
limitation may affect Business Associate's use of Protected Health Information.
4.2 The County shall notify Business Associate of any changes in, or revocation of,
permission by an individual to use or disclose Protected Health Information, to
the extent that such changes may affect Business Associate's use of Protected
Health Information.
4.3 The County shall notify Business Associate of any restriction to the use or
disclosure of Protected Health Information to which the County has agreed in
accordance with 45 CFR , 164.522, to the extent that such changes may affect
Business Associate's use of Protected Health Information.
32 RESOLUTION#2009-187
4.4 The County shall not request Business Associate to use or disclose Protected
Health Information in any manner that would not be permissible under the
Privacy Rule if done by the County.
Section 5: Term.
The term of this Addendum shall be effective upon execution by all parties, and shall
terminate when all of the Protected Health Information provided by the County or
contractors for the County, or created or received by the Business Associate on behalf
of the County, is destroyed, turned over to the County, or turned over to Contractors
designated by the County.
Section 6: Amendment.
The parties agree to take such action as is necessary to amend this Addendum from
time to time as is necessary for the County to comply with the requirements of the
Privacy Rule and the Health Insurance Portability and Accountability Act of 1996, Public
Law No. 104-191.
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33 RESOLUTION#2009-187
BUSINESS ASSOCIATE ADDENDUM TO AGREEMENT BETWEEN BROWARD
COUNTY, FLORIDA AND for
WHEREAS, the parties have made and executed this Business Associate
Addendum to Agreement between COUNTY and for , on the
respective dates under each signature: Broward County through its County
Administrator, authorized to execute same, and duly authorized to
execute same on behalf of
COUNTY
BROWARD COUNTY
WITNESSES:
By:
County Administrator
_day of 20_
Approved as to form by
Office of County Attorney
By:
(Date)
Assistant County Attorney
BUSINESS ASSOCIATE
WITNESSES: [INSERT NAME OF COMPANY]
By:
[TYPE NAME AND TITLE]
Dated _day of 20_.
34 RESOLUTION#2009-187