Item D5
I
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: APRIL 17/1812002
Division:
TDC
Bulk Item: Yes -X- No
Department:
AGENDA ITEM WORDING:
Approval of Amendment to Agreement with Friends of Mallory Square to
Amendment Agreement for the Lighting and Bust Project to clarify scope of
services.
ITEM BACKGROUND:
TDC approved same at their meeting of April 3, 2002.
PREVIOUS REVELANT BOCC ACTION:
BOCC approved original Agreement at their meeting of March 22, 2001.
BOCC approved Amendment at their meeting of December 20, 2001.
BOCC approved FY 2002 Budget at their meeting of September 19, 2001.
CONTRACT/AGREEMENT CHANGES:
Amendment to clarify scope of services
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $50.000
COST TO COUNTY: $50.000
BUDGETED: Yes -L No
REVENUE PRODUCING: Yes -2L No
AMOUNT PER MONTH_ Year
DIVISION DIRECTOR APPROVAL:
Risk Management X(JJ. r<- .
APPROVED BY: County Atty -X- OMB/Purchasing ~
(Lynda Stuart)
DOCUMENTATION:
Included X
To Follow_
Not Required_
DISPOSITION:
AGENDA ITEM # ~
Revised 2/27/01
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Friends of Mallory Contract #
Square Effective Date:
Expiration Date:
Contract Purpose/Description:
Approval of Amendment to Agreement with Friends of Mallory Square to
Amendment Agreement for the Lighting and Bust Project to clarify scope of
services.
Contract Manager: Maxine Pacini 3523 TDC#3
(Name) (Ext. ) (Department/Stop #)
for BOCC meeting on 4/17-18/02 Agenda Deadline: 4/3/02
CONTRACT COSTS
Total Dollar Value of Contract: $ 50,000
Budgeted? Yes[8J No D Account Codes:
Grant: $
County Match: $
Current Year Portion: $
117-77040-530340-T17M-384Y 530340
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ADDITIONAL COSTS
Estimated Ongoing Costs: $_/yr For:
(Not included in dollar value above) (eg. maintenance, utilities, ianitorial, salaries, etc.)
CONTRACT REVIEW
Changes
Date In Needed ~~'W=--
Division Director 8/~/~z.-YeSDNoer' ~//r~~
RiskManagement Y-(r)OrL YesDNorulC( II dOT- K~~oY\
O.M.B./Purchasing ~ \ \ \ 02. YesD No~ (1 A-b SLD
I / / ()
County Attorney '3 If t.?r- Y esD NoEJ S.Hutton
Date Out
Comments:
AMENDMENT TO AGREEMENT
THIS ADDENDUM to agreement is made and entered into this _ day of
2002, between the County of Monroe and the Friends of Mallory Square.
WHEREAS, the parties entered into a contract on March 22, 2001, to fund
certain projects in the Key West Historic Memorial Sculpture Garden, and
WHEREAS, the contract was amended on December 20, 2001 to extend the
agreement to September 30,2002, and
WHEREAS, it has become necessary to revise the contract to allow for the
project to be completed as originally contemplated but fully explained in the application
and award documents;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
the parties agree to the amended agreement as follows:
1.
follows:
The second paragraph of the agreement shall be revised to read as
2. SCOPE OF AGREEMENT. The contractor shall provide installation of
a lighting system in the Key West Historic Memorial Sculpture Garden,
and for installation in said garden and transfer of ownership to the City of
Key West of those busts of the individuals specified in the application, to
wit:
Maitland Adams, Livingstone Wellesley Bethel, Nelson Francis de Sales
English, Maria Valdez Gutsens, Dr. Jeptha Vining Harris, and Elisabetha
Merklin Knight Beiglett Smith.
2. The third paragraph of said agreement shall be revised to read as follows:
3. AMOUNT OF AGREEMENT AND PAYMENT. The County shall
provide an amount not to exceed $50,000. Up to $25,000 shall be
provided for the installation of a lighting system. Up to $25,000 shall be
provided for the acquisition, installation, or transfer of ownership to the
City of Key West combined with installation of the busts specified in
paragraph 2. The Board of County Commissioners and the Tourist
Development Council assume no liability to fund this agreement for an
amount in excess of this award. Payment for expenditures permissible by
law and County policies shall be made through reimbursement to
Contractor upon presentation of invoices, canceled checks and other
documentation necessary to support a claim for reimbursement. For any
such bust as may have been created but not installed nor ownership
transferred to the City of Key West prior to the inception of this agreement,
upon such installation and transfer of ownership, County shall reimburse
the Contractor no more than the amount paid for acquisition plus
associated costs incurred after the original date of this agreement for the
dedicatory/explanatory plaque and installation of the plaque and bust.
Included in said documentation shall be proof that the Contractor has
received and applied to the property matching funds equivalent to or
greater than the amount invoiced to the County. Monroe County's
performance and obligation to pay under this agreement is contingent
upon an annual appropriation by the BOCC.
3. The remaining provisions of the contract dated March 22, 2001, and
amended December 20, 2001, remain in full force and effect.
IN WITNESS WHEREOF, the parties have set their hands and seal on the day
and year first above written.
Friends of Mallory Square
President
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Deputy Clerk
Mayor/Chairman
AMENDMENT TO AGREEMENT
. ,/'J A II
>--/ /' THIS ADDENDUM to agreement is made and entered into this ~ day of
~ 2001, between the County of Monroe and the Friends of Mallory Square.
WHEREAS, there was a contract entered into on March 22, 2001, between the
parties, awarding $50,000 to the Friends of Mallory Square, and
WHEREAS, it has become necessary to extend the contract for an additional
period to allow time for the Friends of Mallory Square to complete the project;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
the parties agree to the amended agreement as follows:
1. Contract period as outlined in Paragraph 1 be extended to September 30,
2002.
2. The remaining provisions of the contract dated March 22, 2001, remain in
full force and effect.
IN WITNESS WHEREOF, the parties have set their hands and seal on the day
and year first above written.
Friends of Mallory Square
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BOARD OF COUNTY
COMMISSIONERS OF
MONROE CO TV, FLORIDA
APPROVED AS TO FORM
AND L. '''Al SUFFlC1EN~&_
BY ~~1""..P' ~ . ~,-,
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r"lATE !~."/ e'f
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GRANT OF FUNDS
This AGREEMENT dated thS2.2-- day of M!rI2C1!-2001, is entered into by and
between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY,
hereinafter "County," on behalf of the TOURIST DEVELOPMENT COUNCIL, hereinafter
"TDC" and Friends of Mallory Square, a Florida not-for-profit corporation, hereinafter"
Contractor" .
WHEREAS, the third penny of Tourist Development Tax may be used to acquire,
construct, extend, enlarge, remodel, repair, improve, maintain, or promote museums,
zoological parks, fishing piers, nature centers or sports arenas which are publicly owned
and operated or owned and operated by not-for-profit corporations, and
WHEREAS, Contractor has applied for funding for the Key West Historic
Memorial Sculpture Garden - Improvement II project to renovate and improve the
Sculpture Garden hereinafter "the Property"; and
WHEREAS, the County and TDC have determined that it is in the best interest of
the County, for purposes of promoting tourism and preserving the heritage of the
community, to acquire, construct, repair and rehabilitate the property for use as a
museum open to the public;
NOW, THEREFORE, in consideration of the mutual covenants and payments
contained herein, the Contractor and the County have entered into this agreement on
the terms and conditions as set forth below.
1. AGREEMENT PERIOD. This agreement is for the period March 22 through
September 30, 2001. This agreement shall remain in effect for the stated period unless
one party gives to the other written notification of termination pursuant to and in
compliance with paragraphs 7,12 and 13 below.
2. SCOPE OF AGREEMENT. The Contractor shall provide the installation of a
lighting system and the creation of busts of individuals that are not yet sponsored in the
Key West Historic Memorial Sculpture Garden.
3. AMOUNT OF AGREEMENT AND PAYMENT. The County shall provide an
amount not to exceed $50,000 ($25,000 for the installation of the lighting system and
$25,000 for the creation of the busts) in reimbursement for materials and services used
to acquire, improve, rehabilitate, repair and renovate the property. The Board of County
Commissioners and the Tourist Development Council assume no liability to fund this
agreement for an amount in excess of this award. Payment for expenditures
permissible by law and County policies shall be made through reimbursement to
Contractor upon presentation of invoices, canceled checks and other documentation
necessary to support a claim for reimbursement. Included in said documentation shall
be proof that the Contractor has received and applied to the property matching funds
equivalent to or greater than the amount invoiced to the County. Monroe County's
Friends of Mallory Square
Capital Project Funding FY 2001
performance and obligation to pay under this agreement is contingent upon an annual
appropriation by the BOCC.
Friends of Mallory Square
Capital Project Funding FY 2001
2
4. REPORTS. The Contractor shall provide financial reports in summary of activity
on forms provided or approved by the TDC, and quarterly narrative reports of activity
under the approved work plan. The Contractor shall keep such records as are
necessary to document the performance of the agreement and expenses as incurred,
and give access to these records at the request of the TDC, the County, the State of
Florida or authorized agents and representatives of said government bodies. It is the
responsibility of the Contractor to maintain appropriate records to insure a proper
accounting of all funds and expenditures. The Contractor understands that it shall be
responsible for repayment of any and all audit exceptions which are identified by the
Auditor General for the State of Florida, the Clerk of Court for Monroe County, the
Board of County Commissioners for Monroe County, or their agents and
representatives. In the event of an audit exception, the current fiscal year grant award
or subsequent grant awards will be offset by the amount of the audit exception. In the
event the grant is not renewed or supplemented in future years, the Contractor will be
billed by the County for the amount of the audit exception and shall promptly repay any
audit exception.
5. MODIFICATIONS AND AMENDMENTS. Any and all modifications of the terms of
this agreement shall be only amended in writing and approved by the Board of County
Commissioners for Monroe County.
6. INDEPENDENT CONTRACTOR. At all times and for all purposes hereunder, the
Contractor is an independent contractor and not an employee of the Board of County
Commissioners of Monroe County. No statement contained in this agreement shall be
construed as to find the Contractor or any of its employees, contractors, servants or
agents to the employees of the Board of County Commissioners of Monroe County, and
they shall be entitled to none of the rights, privileges or benefits of employees of Monroe
County.
7. COMPLIANCE WITH LAW. In carrying out its obligations under this agreement,
the Contractor shall abide by all statutes, ordinances, rules and regulations pertaining to
or regulating the provisions of this agreement, including those now in effect and
hereafter adopted. Any violation of said statutes, ordinances, rules or regulations shall
constitute a material breach of this agreement and shall entitle the County to terminate
this agreement immediately upon delivery of written notice of termination to the
Contractor.
8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS
AGREEMENT. The Contractor shall include in all agreements funded under this
agreement the following terms:
a) Anti-discrimination. Contractor agrees that they will not discriminate against
any employees or applicants for employment or against persons for any other benefit or
service under this agreement because of their race, color, religion, sex, national origin,
or physical or mental handicap where the handicap does not affect the ability of an
individual to perform in a position of employment, and to abide by all federal and state
laws regarding non-discrimination.
Friends of Mallory Square
Capital Project Funding FY 2001
3
b) Anti-kickback. Contractor warrants that no person has been employed or
retained to solicit or secure this agreement upon an agreement or understanding for a
commission, percentage, brokerage or contingent fee, and that no employee or officer
of the Contractor has any interest, financially or otherwise, in Contractor. For breach or
violation of this warranty, the Contractor shall have the right to annul this agreement
without liability or, in its discretion, to deduct from the agreement price or consideration,
the full amount of such commission, percentage, brokerage or contingent fee.
Contractor acknowledges that it is aware that funding for this agreement is available at
least in part through the County and that violation of this paragraph may result in the
County withdrawing funding for the Project.
c) Hold harmless/indemnification. Contractor acknowledges that this agreement
is funded at least in part by the County and agrees to indemnify and hold harmless the
County and any of its officers and employees from and against any and all claims,
liabilities, litigation, causes of action, damages, costs, expenses (including but not
limited to fees and expenses arising from any factual investigation, discovery or
preparation for litigation), and the payment of any and all of the foregoing or any
demands, settlements or judgments (collectively claims) arising directly or indirectly
from any negligence or criminal conduct on the part of Contractor in the performance of
the terms of this agreement. The Contractor shall immediately give notice to the County
of any suit, claim or action made against the Contractor that is related to the activity
under this agreement, and will cooperate with the County in the investigation arising as
a result of any suit, action or claim related this agreement.
d) Insurance. Contractor agrees that it maintains in force at its own expense a
liability insurance policy which will insure and indemnify the Contractor and the County
from any suits, claims or actions brought by any person or persons and from all costs
and expenses of litigation brought against the Contractor for such injuries to persons or
damage to property occurring during the agreement or thereafter that results from
performance by Contractor of the obligations set forth in this agreement. At all times
during the term of this agreement and for one year after acceptance of the project,
Contractor shall maintain on file with the County a certificate of the insurance of the
carriers showing that the aforesaid insurance policy is in effect. The following
coverage's shall be provided:
1. Workers Compensation insurance as required by Florida Statutes.
2. Commercial General Liability Insurance with minimum limits of $500,000 per
occurrence for bodily injury, personal injury and property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000
combined single limit per occurrence.
The Contractor, the County and the TDC shall be named as additional insured, exempt
workers compensation. The policies shall provide no less than 30 days notice of
cancellation, non-renewal or reduction of coverage.
At all times during the term of this agreement and for one year after acceptance of the
project, Contractor shall maintain on file with the County a certificate of insurance
showing that the aforesaid insurance coverage's are in effect.
e) Licensing and Permits. Contractor warrants that it shall have, prior to
commencement of work under this agreement and at all times during said work, all
required licenses and permits whether federal, state, County or City.
Friends of Mallory Square
Capital Project Funding FY 2001
4
9. HOLD HARMLESS/INDEMNIFICATION. The Contractor hereby agrees to
indemnify and hold harmless the BOCCrrDC and any of its officers and employees from
and against any and all claims, liabilities, litigation, causes of action, damages, costs,
expenses (including but not limited to fees and expenses arising from any factual
investigation, discovery or preparation for litigation), and the payment of any and all of
the foregoing or any demands, settlements or judgments arising directly or indirectly
under this agreement. The Contractor shall immediately give notice to the County of
any suit, claim or action made against the County that is related to the activity under this
agreement, and will cooperate with the County in the investigation arising as a result of
any suit, action or claim related to this agreement.
10. ANTI-DISCRIMINATION. The Contractor agrees that they will not discriminate
against any of their employees or applicants for employment or against persons for any
benefit or service because of their race, color, religion, sex, national origin, or physical
or mental handicap where the handicap does not affect the ability of an individual to
perform in a position of employment, and to abide by all federal and state laws
regarding non-discrimination.
11. ANTI-KICKBACK. The Contractor warrants that no person has been employed'
or retained to solicit or secure this agreement upon an agreement or understanding for
a commission, percentage, brokerage or contingent fee, and that no employee or officer
of the County or TOe has any interest, financially or otherwise, in the said funded.
project, except for general membership. For breach or violation of this warranty, the
County shall have the right to annul this agreement without liability or, in its discretion,
to deduct from the agreement price or consideration, the full amount of such
commission, percentage, brokerage or contingent fee.
12. TERMINATION. This agreement shall terminate on September 30,2001.
Termination prior thereto shall occur whenever funds cannot be obtained or cannot be
continued at a level sufficient to allow for the continuation of this agreement pursuant to
the terms herein. In the event that funds cannot be continued at a level sufficient to
allow the continuation of this agreement pursuant to the terms specified herein, this
agreement may then be terminated immediately by written notice of termination
delivered in person or by mail to Contractor. The County may terminate this agreement
without cause upon giving written notice of termination to provider. The County shall
not be obligated to pay for any services or goods provided by Contractor after
Contractor has received written notice of termination.
13. TERMINATION FOR BREACH. The County may immediately terminate this
agreement for any breach of the terms contained herein. Such termination shall take
place immediately upon receipt of written notice of said termination. Any waiver of any
breach of covenants herein contained to be kept and performed by Contractor shall not
be deemed or considered as a continuing waiver and shall not operate to bar or prevent
the County from declaring a forfeiture for any succeeding breach either of the same
conditions or of any other conditions. Failure to provide County with certification of use
Friends of Mallory Square
Capital Project Funding FY 2001
5
c I
of matching funds or matching in-kind services at or above the rate of request for
reimbursement or payment by is a breach of agreement, for which the County may
terminate this agreement upon giving written notification of termination.
14. ENTIRE AGREEMENT. This agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and all prior
agreements with respect to such subject matter between the Contractor and the County.
15. CONSENT TO JURISDICTION. This agreement, its performance, and all
disputes arising hereunder, shall be govemed by the laws of the State of Florida, and
both parties agree that the proper venue for any actions shall be in Monroe County.
16. ETHICS CLAUSE: Contractor warrants that he has not employed, retained or
otherwise had act on his behalf any former County officer or employee in violation of
Section 2 or Ordinance No. 10-1990 or any County officer or employee in violation of
Section 3 of Ordinance No. 10-1990. For breach or violation of the provision the County
may, at its discretion terminate this agreement without liability and may also, at its
discretion, deduct from the agreement or purchase price, or otherwise recover, the full
amount of any fee, commission, percentage, gift, or consideration paid to the former or
present County officer or employee.
17. PUBLIC ENTITY CRIME STATEMENT: A person or affiliate who has been
placed on the convicted vendor list following a conviction for public entity crime may not
submit a bid on an agreement to provide any goods or services to a public entity, may
not submit a bid on a agreement with a public entity for the construction or repair of a
public building or public work, may not submit bids on leases of real property to public
entity, may not be awarded or perform work as a Contractor, supplier, sub-contractor, or
consultant under a agreement with any public entity, and may not transact business with
any public entity in excess of the threshold amount provided in Section 287.017, for
CATEGORY TWO for a period of 36 months from the date of being placed on the
convicted vendor list.
18. AUTHORITY: Contractor warrants that it is authorized by law to engage in the
performance of the activities encompassed by the project herein described. Each of the
signatories for the Contractor below certifies and warrants that the Contractor's name in
this agreement is the full name as designated in its corporate charter (if a corporation);
they are empowered to act and contract for the Contractor, and this agreement has
been approved by the Board of Directors of Contractor or other appropriate authority.
19. LICENSING AND PERMITS: Contractor warrants that it shall have, prior to
commencement of work under this agreement and at all times during said work, all
required licenses and permits whether federal, state, County or City.
20. INSURANCE: Contractor agrees that it maintains in force at its own expense a
liability insurance policy which will insure and indemnify the Contractor and the County
from any suits, claims or actions brought by any person or persons and from all costs
Friends of Mallory Square
Capital Project Funding FY 2001
6
and expenses of litigation brought against the Contractor for such injuries to persons or
damage to property occurring during the agreement or thereafter that results from
performance by Contractor of the obligations set forth in this agreement. At all times
during the term of this agreement and for one year after acceptance of the project,
Contractor shall maintain on file with the County a certificate of the insurance of the
carriers showing that the aforesaid insurance policy is in effect. The following
coverage's shall be provided:
1. Workers Compensation insurance as required by Florida Statutes.
2. Commercial General Liability Insurance with minimum limits of $500,000 per
occurrence for bodily injury, personal injury and property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000
combined single limit per occurrence.
The Contractor, the County and the TDC shall be named as additional insured, except
workers compensation. The policies shall provide no less than 30 days notice of
cancellation, non-renewal or reduction of coverage.
At all times during the term of this agreement and for one year after acceptance of the
project, Contractor shall maintain on file with the County a certificate of insurance
showing that the aforesaid insurance coverage's are in effect.
21. NOTICE. Any written notice to be given to either party under this agreement or
related hereto shall be addressed and delivered as follows:
For Friends of Mallory Square: Edwin O. Swift, III
201 Front Street
Key West, FL 33040
For County: Lynda Stuart
Monroe County Tourist Development Council
1201 White Street, Suite 102
Key West, FL 33040
and
Suzanne Hutton, Asst. County Attorney
310 Fleming St.
Key West, FL 33040
Friends of Mallory Square
Capital Project Funding FY 2001
7
e Y L. KOLHAGE, CLERK
(SEAL)
ATTEST:
By:
Secretary
Friends of Mallory Square
Capital Project Funding FY 2001
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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MaYOr/C~an
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Friends of Mallory Square
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~,~ C. Sw'f=-7,jJI. President
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.Jun-13-01 01:29P Risk" Management
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305 295 4364
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MONROE COUNTY, ll'LORIDA
Request Fo.. Waiver
of
wuraDCC RequireDleats
[t is requested tlult the . Rq11imn~Dt5. as spa:ificd iu the CoUdtYJ Scbalulc: of~ llcqUimneats, ba
waived or modified OIl die: oUowioC ~
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PoJicia Waiver
willllpply to:
SipJdDR of ContmdOC':
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County Administrator'
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NOt Approved:
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Meeting Date:
AdnJinjsnUon Imtruction
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Approved:
Not ApPrOved:
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