Item D7
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: JUNE 17, 2009 Division: TDC
Bulk Item: Yes --L- No - Department:
Staff Contact Person/Phone #:Maxine Pacini - 206-1552
AGENDA ITEM WORDING:
Approval of an Amendment to the Agreement with Schooner Western Union Preservation Society,
Inc., to revise Exhibit A for the Schooner Western Union Maritime Museum Refit project in an amount
not to exceed $405,000, DAC I, FY 2009 Capital Resources.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
BOCC approved original Agreement at their meeting of November 19, 2008
CONTRACT/AGREEMENT CHANGES:
Amend project segments in Exhibit A to better manage the work flow
STAFF RECOMMENDATIONS:
Approval
TOT AL COST: $405,000 INDIRECT COST: N/A BUDGETED: Yes -1L No -
COST TO COUNTY: $405,000 SOURCE OF FUNDS: TDC
REVENUE PRODUCING: Yes.lL No AMOUNT PER MONTH_ Year -
APPROVED BY: County Atty -L OMB/Purchasing -L Risk Management X
DOCUMENT ATION: Included X Not Required_
DISPOSITION: AGENDA ITEM #
Revised 1/09
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Schooner Western Union Contract #_ TDC #: 515
Preservation Society, Inc. Effective Date: 11/19/08
Expiration Date: 3/31/2010
Contract Purpose/Description:
Approval of an Amendment to the Agreement with Schooner Western Union
Preservation Society, Inc., to revise Exhibit A for the Schooner Western Union
Maritime Museum Refit proiect in an amount not to exceed $405,000, DAC 1. FY 2009
Capital Resources.
Contract Manager: Maxine Pacini 3523 TDC # 3
(Name) (Ext.) (Department/S top #)
for BOCC meeting on 6/17/09 Agenda Deadline 6/2/09
CONTRAC:r COSTS
/
Total Dollar Value of Contract: $ 405,000 Current Year Portion: $/
Budgeted? Y es~ NoD Account Codes : 117-77040-530340-T-B-97-645-X-530340
Grant: $
County Match: $ - - - -
-----
- - - -
- ---
ADDITIONAL COSTS
Estimated Ongoing Costs: $~yr For:
(Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Changes Date Out
Date In Needed I~
Division Director 04/1~
Risk Mana~ment S' (J tYi YeSDNoB. ~_. :.. ~ d,f]
I\; / YesD NoB '. 1
~ ~~\ YesD Nog p &~frJ
O.M.B./Purch sing _
County Attorney 5WV"\ YesD NO~ C. Hall
Comments:
OMB Form Revised 2/27/0 I Mep #2
AMi.:NDMENT (1st AfV1EI'!DMENTl TO AGREEMENT
THIS AMENUMENT to agreemenl dated the_day of 2009, is ontered into by and between the Board
of County Commissioners for Monroe County, on behalf of the Tourist Development Council, and Schooner Western
Union Preservation Society, Inc. a not for profit entity organized and operating under the laws of the state of
Florida.
WHEREAS, there was a contract entered into on Novem ber 19, 2008 between the parties, awarding $405,000
for the Schooner Western Union Maritime Museum RefIt project; and
WHEREAS, it has become necessary to revise Exhibit A of the Agreement to revise project segments to
better manage the work flow;
NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties agree to the
amended agreement as foil ows:
1. Exhibit A of the Agreement shall be revised and attached hereto.
2. Paragraph 2 of the Agreement shall read as follows: SCOPE OF AGREEMENT. The Grantee shall provide
the following scope of services: Seaments 1 , 2, 3. 4 and 5. Segment(s) of the work is/are more particularly
described in the Revised Exhibit(s) A, detailing the work and the cost allocable to each segment, attached hereto and
incorporated herein by reference. All work for which grant funds are to be expended must be completed by the stated
termination date of March 31, 2010 and all invoices pertaining to this project shall be submitted to the Finance
Department of Monroe County no late r than March 31, 2010 to be considere d for paym ent.
3. The remaining provisions of the contract dated Novem ber 19, 2009 remai n in full force and effe ct.
IN WITNESS WHEREOF, the parties have set their ha nds and seal on the day and year first above written.
(SEAL) Board of County Commissioners
Attest: Danny L. Kol hage, Clerk of Monroe County
Deputy Clerk Mayor/Chairman
(CORPORATE SEAL) SChooner,::'" Union p\er7on Society, Inc.
Attest:
By. ~/~~~~
Secretary r;. presideft ( '. \ .~
Print Name (=^-~\L~~
Prin . Name
OR TWO WITN ESSES
(1 ) (2)
(1 ) (2)
Print Name Print Name
Amendment # I
Schooner Western Union
Contract # 515
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Grant Award A~reement
( THIS AGREEMENT (Agreement) is entered into this ) '7':Yday of
\ r:!
/' . cf t ,2008 by and between MONROE COUNTY, a political subdivision of the state of
Florida (County) and Schooner Western Union Preservation Society, Inc. a not for
profit organized and operating under the laws of the state of Florida (Grantee).
WHEREAS, the third penny of Tourist Development Tax may be used to
acquire, construct, extend, enlarge, remodel, repair or improve, convention centers, sports
stadiums, sports arenas, coliseums, auditoriums, fishing piers, museums, zoological parks,
nature centers, beach improvements and beach park facilities which are publicly owned
and operated or owned and operated by not-for-profit corporations, and
WHEREAS, Grantee has applied for funding for the Schooner Western
Union Maritime Museum Refit project; and
WHEREAS, the Grantor 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 attract tourists, and repair the property for use as museum open to the
public;
NOW, THEREFORE, in consideration of the mutual covenants and
payments contained herein, the Grantee and the Grantor have entered into this Agreement
on the terms and conditions as set forth below.
1. GRANT AGREEMENT PERIOD. This Agreement is for the period of November
19,2008 through to March 31, 2010. 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 or 13 below.
2. SCOPE OF AGREEMENT. The Grantee shall provide the following scope of
services: Seqments 1 , 2, 3 and 4. Segment(s) of the work is/are more particularly
described in Exhibit(s) A, detailing the work and the cost allocable to each segment,
attached hereto and incorporated herein by reference. All work for which grant funds are
to be expended must be completed by the stated termination date of March 31, 2010 and
all invoices pertaining to this project shall be submitted to the Finance Department of
Monroe County no later than March 31, 2010 to be considered for payment.
a) There shall be a project manager to acknowledge receipt of goods or work
performed. This Project Manager shall be Guy DeBoer, Coldwell Banker Real Estate,
1201 White Street, Key West, FL 33040 (Tel: 305-766-5832/E-mail:
quydeboer@yahoQ,com). Should there be a change in the project manager specified in
the Grantee's application, a new project manager shall be designated and notice with new
contact information shall be provided in writing to the TDC administrative office,
Schooner Western Union
FY 2009 Funding
Contract 10#: 515
I
b) If, and to the extent that, Grantee contracts for any of the work funded under this
Agreement to be performed or completed, Grantee shall give notice to County of the
contractual relationship, provide County with a copy of any and all contracts and shall
require the contractor(s) to comply with all the terms of this contract. Should Grantee
contract the work and then decrease the scope of work to be performed by a contractor,
Grantee shall provide County with an amended contract executed by Grantee and its
contractor.
(i) A Grantee which is a governmental entity shall comply with the procurement
regulations and policies to which it is subject, and shall provide Grantor documentation of
the procurement requirements applicable to the project and compliance therewith.
(ii) A Grantee which is a not-for-profit entity shall undergo procurement processes
for those parts of the project to be contracted (not performed by the entity's employees),
which shall, at a minimum, require the acquisition of two written quotes for work expected
to be under $25,000 or a notarized statement as to why such written quotes were not
feasible. For work expected to be $25,000 or more, a competitive bid process must be
performed. County procurement policies and procedures may be used by the Grantee as
a guideline.
c) Grantee shall exercise good internal controls to assure that the project as described in
the funding application shall be completed on a timely basis within the proposed budget
and shall provide to County any certifications, including those by the architect, engineer,
contractor or an independent consultant if necessary, required to establish that materials
which are purported to be applied to the project are in fact so applied. Further verification
shall be required to show that equipment and other fixtures and personal property covered
by this Agreement are delivered to and installed in the project site. When any permit is
required by any governmental agency, copies of plans and other documents which are
submitted to the applicable agency shall be submitted to the County Engineering Division
to enable verification that the scope of services under this Agreement has been provided.
d). All work completed must be in compliance with the Schooner Western Union Historic
Vessel Conveyance Agreement signed on October 22, 2007 and attached hereto as
Exhibit B. The Vessel shall remain within the corporate boundaries of the City of Key West
for 60% of the year, and shall be made available for public viewing opportunities during
that time. This provision shall survive the expiration of the term of this Agreement for a
period of 10 years.
3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an
amount not to exceed $405,000 (Four Hundred and Five Thousand Dollars) for materials
and services used to repair the property. Reimbursement request must show that Grantee
has paid in full for materials and services relating to the segment prior to seeking the 50%
Schooner Western Union
FY 2009 Funding
ContractlD#: 515
2
(fifty percent) reimbursement from Grantor. Payment shall be 50% (fifty percent)
reimbursement of the total cost of the segment, subject to the cap on expenditures for that
segment as set forth in Exhibit A. Reimbursement can be sought after each segment of
the Agreement is completed and signed by the Monroe County Engineering Department as
outlined in 3.a. The Soard of County Commissioners and the Tourist Development
Council assume no liability to fund this Agreement for an amount in excess of this award.
Monroe County's performance and obligation to pay under this Agreement is contingent
upon an annual appropriation by the SOCC.
a) Payment shall be made upon the completion of a specific segment as outlined in
the Scope of Services and Exhibit A. Payment for expenditures permissible by law and
County policies shall be made through reimbursement to Grantee upon presentation of
Application for Payment Summary- AlA Document G702 or similar certification as required
below for governmental entities and not-for-profit entities, invoices, canceled checks and
other documentation necessary to support a claim for reimbursement. Included in said
documentation shall be proof that the Grantee has received the property, realty or
personalty, for each segment of Agreement as outlined in Exhibit A and paid an amount
equal to or greater than the amount invoiced to the Grantor. It shall be necessary for the
Grantee to contact the County Engineering Division and to arrange for inspections upon
the completion of each segment. The documentation needed to support the payment
request shall be in the form necessary for submission and available to the County
Engineer at the time of inspection. All submissions for payment shall have a proposed
schedule of values for segment(s) and indicate the percentage of completion of the overall
project as of the submission. This document should be signed by the project architect,
engineer, general contractor or project manager. Photos of the progress of the work shall
also be submitted with the payment application. It shall be the responsibility of the project
architect, engineer, general contractor or project manager to initiate the communication
with the Monroe County Engineering Division to facilitate the inspection(s) of the segment
of the project. All submissions requesting payment shall be approved in writing, and
signed, by the Monroe County Engineering Division as to the completion of the segment of
the project for which payment is requested. The application for payment document must
be certified through a statement signed by an officer of the organization and notarized,
declaring that representations in the invoice are true and factual. Grantee shall also
provide partial releases of liens or certifications of non-lien if applicable. Grantor shall
retain 10% of any payment on work in progress until the Grantee has provided a Final
Release of Lien for each vendor/Contractor for whom payment is requested. For projects
exceeding $25,000 in TDC funding under this Agreement, final payment will not be made
until the following documents are complete and submitted to the Grantor:
AlA Document G-702 Application for Payment Summary
AlA Document G-704 Certificate of Substantial Completion
AlA Document G-706 Contractor's Affidavit of Debts & Claims
AlA Document G-706A Contractor's Affidavit of Release of Liens
AlA Document G-707 Consent of Surety to Final Payment (when applicable)
Schooner Western Union
FY 2009 Funding
Contract 10#: 515
3
Final Release of Lien or Affidavit and Partial Release of Lien
For projects for which TDC funding under this Agreement is $25,000 or less, the AlA
documentation is not required, but sufficient documentation must be submitted to County
to provide similar assurances that the work has been completed and contractors/suppliers
paid.
All payment requests must be submitted no later than the completion of project of March
31, 2010. Invoices received after March 31, 2010 will not be considered for payment.
b) Documentation shall be submitted to the TDC Administrative Office to show the
receipt and application of in-kind donations of goods, professional services, and materials.
Said documentation should include invoices, bills of lading, etc., and be verified as
received and applied to the project through a notarized statement of the project architect,
engineer, general contractor or project manager. The receipt and application to the project
of volunteer labor are to be documented and verified by notarized signature of the project
architect, engineer, general contractor or project manager, and said documentation
submitted to the TDC Administrative Office. All submissions shall identify the items
included in Exhibit A and grantee shall complete the Application for Payment form which is
provided within the payment/reimbursement kit provided to the grantee, listing the
schedule of values which are sought to be reimbursed and shall indicate the percentage of
completion of the overall project as of the submission. This document should be signed by
the project architect, engineer, general contractor or project manager.
Photographs showing progress on project shall be included in any payment request. The
Project Manager shall certify delivery to the project site and installation therein of any
goods or services provided other than through an architect, engineer or contractor. All
work performed and goods received on site and incorporated into the project shall be
verified by one of the foregoing. Submission of any documentation which is untrue,
falsified, or otherwise misrepresents the work which has been completed, paid, or donated
shall constitute a breach of agreement, for which breach the contract may be immediately
terminated at the discretion of the County, whose decision shall be final.
c) Grantee must submit all documentation for final payment on or before the termination
date of this grant of March 31,2010. Invoices received after March 31, 2010 will not be
considered for payment.
d) At any time that the documentation requirement policies of Monroe County are
revised, such as to require annual inventory reports for equipment purchased under a TDC
capital project grant, Grantee shall comply thereafter with such increased requirements, or
further funding under the Agreement may be terminated by County.
e) Upon successful completion of this Grant Agreement, the Grantee may retain
ownership of the real and personal property acquired and/or improved with funding under
this Grant Agreement. However, the Grantee shall maintain, preserve and operate the
Schooner Western Union
FY 2009 Funding
Contract 10#: 515
4
property which was acquired or improved under this Agreement for the uses and purposes
which qualified the Grantee for tourist development tax funding. Grantee shall complete
and sign a Property Reporting Form (provided within payment/reimbursement package) for
personal property and forward said completed form with the appropriate invoice to the TDC
Administrative Office. Real property acquired or improved through funding under this
Agreement shall remain dedicated for the purposes set forth herein or for other purposes
which promote tourism and ownership of said property shall be retained by the Grantee.
The following terms shall apply:
(i) The Grantee shall have the use of the property, including both realty and personalty
acquired with funding under this agreement, at the project site for so long as the facility is
operated by Grantee, open to the public, and has a primary purpose of promoting tourism.
At such time as any of the conditions in the preceding sentence shall cease to exist, the
Grantee shall transfer ownership and possession of equipment and personal property to a
local government or another not-for-profit organization which is a facility for which tourist
development taxes may be used pursuant to Florida Statute with prior approval from TDC
and SOCC.
(ii) If at any time the Grantee (a) moves the vessel for more than the time limitations
expressed in paragraph 2.d. below and in the attached Conveyance Agreement; (b) elects
not to continue with or fails to complete the Schooner Western Union Maritime Museum
Refit project as described in the application for grant award submitted to the TDC, or
otherwise decides not to place into service for tourist-promotion-related purposes the
facility acquired, constructed, or renovated with tourist development tax funding; (c)
demolishes the project facility or divests itself of ownership or possession of the real
property; or (d) ceases the use of the property with a primary purpose of promoting
tourism, Grantee shall, pursuant to the formula set forth hereafter, refund to the County
any and all funding given to Grantee pursuant to this Agreement. This provision shall
survive the termination date of all other provisions of this contract for a period of ten years.
Should the move, failure to complete, demolition, transfer of ownership, or change of use
to a non-tourist-promotion related purpose occur after the facility has been used for tourist-
related purpose occur after the facility has been used for tourist related purposes for at
least three (3) years from the date of this Agreement, the amount of refund shall be pro-
rated based on a useful life often (10) years.
(iii) The Grantee is responsible for the implementation of adequate maintenance
procedures to keep the real and personal property in good operating condition.
(iv) The Grantee is responsible for any loss, damage, or theft of, and any loss, damage
or injury caused by the use of, real or personal property or equipment purchased through
funding under this Agreement.
4. RECORDS AND REPORTS. The Grantee 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
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FY 2009 Funding
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agents and representatives of said government bodies. The Grantee shall also provide
such access to the personal property and equipment purchased under this Agreement. It is
the responsibility of the Grantee to maintain appropriate records in accordance with
generally accepted accounting principles consistently applied to insure a proper
accounting of all funds and expenditures. The Grantee 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 Grantee will be billed by the Grantor for the
amount of the audit exception and shall promptly repay any audit exception.
(a) Public Access. The County and Grantee shall allow and permit reasonable access to,
and inspection of, all documents, papers, letters or other materials in its possession or
under its control subject to the provisions of Chapter 119, Florida Statutes, and made or
received by the County and Grantee in conjunction with this Agreement; and the County
shall have the right to unilaterally cancel this Agreement upon violation of this provision by
Grantee.
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. The terms, covenants, conditions, and provisions of
this Agreement shall bind and inure to the benefit of the County and Grantee and their
respective legal representatives, successors, and assigns.
6. INDEPENDENT CONTRACTOR. At all times and for all purposes hereunder, the
Grantee 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 Grantee 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.
(a) No Personal Liability. No covenant or Agreement contained herein shall be deemed to
be a covenant or Agreement of any member, officer, agent or employee of Monroe County
in his or her individual capacity, and no member, officer, agent or employee of Monroe
County shall be liable personally on this Agreement or be subject to any personal liability
or accountability by reason of the execution of this Agreement.
7. COMPLIANCE WITH LAW. In carrying out its obligations under this Agreement, the
Grantee 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
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FY 2009 Funding
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material breach of this Agreement and shall entitle the Grantor to terminate this Agreement
immediately upon delivery of written notice of termination to the Grantee.
8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS AGREEMENT.
The Grantee shall include in all Agreements funded under this Agreement the following
terms:
a) Anti-discrimi nation. Contractor agrees that it 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.
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
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FY 2009 Funding
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Ag reement 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 TOC 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.
f) Right to Audit. 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 TOC, the County, the State of Florida or authorized
agents and representatives of said government bodies.
9. HOLD HARMLESS/lNOEMNIFICATION. The Grantee hereby agrees to indemnify and
hold harmless the BOCCfTOC and the 3406 North Roosevelt Blvd. Corporation or 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 Grantee shall immediately give notice to
the Grantor of any suit, claim or action made against the Grantor that is related to the
activity under this Agreement, and will cooperate with the Grantor in the investigation
arising as a result of any suit, action or claim related to this Agreement.
(a) Non-Waiver of Immunity. Notwithstanding he provisions of Sec. 768.28, Florida
Statutes, the participation of the County and the Grantee in this Agreement and the
acquisition of any commercial liability insurance coverage, self-insurance coverage, or
local government liability insurance pool coverage shall not be deemed a waiver of
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FY 2009 Funding
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immunity to the extent of liability coverage, nor shall any contract entered into by the
County be required to contain any provision for waiver.
(b) Privileges and Immunities. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or
employees of any public agents or employees of the County, when performing their
respective functions under this Agreement within the territorial limits of the County shall
apply to the same degree and extent to the performance of such functions and duties of
such officers, agents, volunteers, or employees outside the territorial limits of the County.
10. NONDISCRIMINATION. County and Grantee agree that there will be no
discrimination against any person, and it is expressly understood that upon a
determination by a court of competent jurisdiction that discrimination has occurred, this
Agreement automatically terminates without any further action on the part of any party,
effective the date of the court order. County or Grantee agree to comply with all Federal
and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination.
These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352)
which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the
Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686),
which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act
of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of
handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107)
which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and
Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis
of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health
Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended,
relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil
Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the
sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42
use s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on
the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state
statutes which may apply to the parties to, or the subject matter of, this Agreement.
11. ANTI-KICKBACK. The Grantee 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 TOC has any interest, financially or otherwise, in the said funded project,
except for general membership. For breach or violation of this warranty, the Grantor 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.
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FY 2009 Funding
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12. TERMINATION. This Agreement shall terminate on March 31, 2010. 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
Grantee. The Grantor may terminate this Agreement without cause upon giving written
notice of termination to Applicant. The Grantor shall not be obligated to pay for any
services or goods provided by Grantee after Grantee has received written notice of
termination.
13. TERMINATION FOR BREACH. The Grantor 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 Grantee shall not be
deemed or considered as a continuing waiver and shall not operate to bar or prevent the
Grantor from declaring a forfeiture for any succeeding breach either of the same conditions
or of any other conditions. Failure to provide Grantor with certification of use of matching
funds or matching in-kind services at or above the rate of request for reimbursement or
payment is a breach of Agreement, for which the Grantor 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 Grantee and the Grantor.
15. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES.
This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts made and to be performed entirely in the State.
This Agreement is not subject to arbitration. Mediation proceedings initiated and
conducted pursuant to this Agreement shall be in accordance with the Florida Rules of
Civil Procedure and usual and customary procedures required by the circuit court of
Monroe County.
(a) Venue. In the event that any cause of action or administrative proceeding is
instituted for the enforcement or interpretation of this Agreement, the County and Grantee
agree that venue shall lie in the appropriate court or before the appropriate administrative
body in Monroe County, Florida.
(b) Severability. If any term, covenant, condition or provision of this Agreement (or the
application thereof to any circumstance or person) shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining terms,
covenants, conditions and provisions of this Agreement, shall not be affected thereby; and
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FY 2009 Funding
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each remaining term, covenant, condition and provision of this Agreement shall be valid
and shall be enforceable to the fullest extent permitted by law unless the enforcement of
the remaining terms, covenants, conditions and provisions of this Agreement would
prevent the accomplishment of the original intent of this Agreement. The County and
Grantee agree to reform the Agreement to replace any stricken provision with a valid
provision that comes as close as possible to the intent of the stricken provision.
(c) Attorney's Fees and Costs. The County and Grantee agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party relative
to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an
award against the non-prevailing party, and shall include attorney's fees, courts costs,
investigative, and out-of-pocket expenses in appellate proceedings.
(d) Adjudication of Disputes or Disagreements. County and Grantee agree that all
disputes and disagreements shall be attempted to be resolved by meet and confer
sessions between representatives of each of the parties. If the issue or issues are still not
resolved to the satisfaction of the parties, then any party shall have the right to seek such
relief or remedy as may be provided by this Agreement or by Florida law. This agreement
shall not be subject to arbitration.
(e) Cooperation. In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach of this
Agreement, County and Grantee agree to participate, to the extent required by the other
party, in all proceedings, hearings, processes, meetings, and other activities related to the
substance of this Agreement or provision of the services under this Agreement. County
and Grantee specifically agree that no party to this Agreement shall be required to enter
into any arbitration proceedings related to this Agreement.
16. ETHICS CLAUSE: Grantee 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 em ployee in violation of
Section 3 of Ordi nance No. 10-1990. For breach or violation of the provision the Grantor
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. The County and Grantee warrant that, in respect to
itself, it has neither employed nor retained any company or person, other than a bona fide
employee working solely for it, to solicit or secure this Agreement and that it has not paid
or agreed to pay any person, company, corporation, individual, or firm, other than a bona
fide employee working solely for it, any fee, commission, percentage, gift, or other
consideration contingent upon or resulting from the award or making of this Agreement.
For the breach or violation of the provision, the Grantee agrees that the County shall have
Schooner Western Union
FY 2009 Funding
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the right to terminate this Agreement without liability and, at its discretion, to offset from
monies owed, or otherwise recover, the full amount of such fee, commission, percentage,
gift, or consideration.
(a) Covenant of No Interest. County and Grantee covenant that neither presently has
any interest, and shall not acquire any interest, which would conflict in any manner or
degree with its performance under this Agreement, and that only interest of each is to
perform and receive benefits as recited in this Agreement.
(b) Code of Ethics. County agrees that officers and employees of the County recognize
and will be required to comply with the standards of conduct for public officers and
employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to,
solicitation or acceptance of gifts; doing business with one's agency; unauthorized
com pensation; misuse of public position, conflicting employment or contractual
relationship; and disclosure or use of certain information.
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. By
executing this document grantee warrants that it is in compliance with this paragraph.
18. AUTHORITY: Grantee 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 Grantee below certifies and warrants that the Grantee'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 Grantee, and this Agreement has been
approved by the Board of Directors of Grantee or other appropriate authority.
19. LICENSING AND PERMITS: Grantee 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: Grantee agrees that it maintains in force at its own expense a liability
insurance policy which will insure and indemnify the Grantee and the Grantor from any
suits, claims or actions brought by any person or persons and from all costs and expenses
of litigation brought against the Grantee for such injuries to persons or damage to property
occurring during the Agreement or thereafter that results from performance by Grantee of
the obligations set forth in this Agreement. At all times during the term of this Agreement
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FY 2009 Funding
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and for one year after acceptance of the project, Grantee shall maintain on file with the
Grantor 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
Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable
shall be $250,000 per Person $500,000 per occurrence $50,000 property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000
combined single limit per occurrence.
The Grantee, the Grantor and the TOC 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.
Grantee shall provide, to the County, as satisfactory evidence of the required insurance,
including the insurance policy application and either:
. Original Certificate of Insurance
or
. Certified copy of the actual insurance policy
Or
. Certificate of Insurance e-mailed from Insurance Agent/Company to County
Risk Management - Telephone Maria Slavik at 295-3178 for details
(Certificates can be e-mailed directly from the insurance agency to:
Slavik-Maria@MonroeCounty-FL.Gov - The e-mail must state that this is a
certificate for a TOC project and should be forwarded to Maxine Pacini
at the TOC administrative office)
An original certificate or a certified copy of any or all insurance policies required by
this contract shall be filed with the Clerk of the BOCC prior to the contract being
executed by the Clerks office. The Insurance policy must state that the Monroe
County BOCC and Monroe County TOC is the Certificate Holder and additional
Insured for this contract. Insurance should be mailed to:
Monroe County Board of County Commissioners
C/O Risk Management
P ,0, Box 1026
Key West, FL 33041
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FY 2009 Funding
Contract 10#: 515
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21. NOTICE. Any notice required or permitted under this agreement shall be in writing
and had delivered or mailed, postage prepaid, to the other party by certified mail, returned
receipt requested to the following:
For Grantee: Guy DeBoer
Coldwell Banker Real Estate
1201 White Street
Key West, FL 33040
For Grantor: Lynda Stuart
Monroe County Tourist Development Council
1201 White Street, Suite 102
Key West, FL 33040
and
Cynthia Hall, Asst. County Attorney
P.O. Box 1026
Key West, FL 33041-1026
22. CLAIMS FOR FEDERAL OR STATE AID. Contractor and County agree
that each shall be, and is, empowered to apply for, seek, and obtain federal and state
funds to further the purpose of this Agreement; provided that all applications, requests,
grant proposals, and funding solicitations shall be approved by each party prior to
submission.
23. NON-DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES. This
Agreement is not intended to, nor shall it be construed as, relieving any participating entity
from any obligation or responsibility imposed upon the entity by law except to the extent of
actual and timely performance thereof by any participating entity, in which case the
performance may be offered in satisfaction of the obligation or responsibility. Further, this
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the County, except to the extent permitted by the
Florida constitution, state statute, and case law.
24. NON-RELIANCE BY NON-PARTIES. No person or entity shall be entitled to rely
upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any
third-party claim or entitlement to or benefit of any service or program contemplated
hereunder, and the County and the Grantee agree that neither the County nor the Grantee
or any agent, officer, or employee of either shall have the authority to inform, counsel, or
otherwise indicate that any particular individual or group of individuals, entity or entities,
have entitlements or benefits under this Agreement separate and apart, inferior to, or
superior to the community in general or for the purposes contemplated in this Agreement.
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FY 2009 Funding
Contract 10#.' 515
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25. A TTESTA TIONS. Grantee agrees to execute such documents as the County may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a
Drug-Free Workplace Statement.
26. NO PERSONAL LIABILITY. No covenant or Agreement contained herein shall be
deemed to be a covenant or Agreement of any member, officer, agent or employee of
Monroe County in his or her individual capacity, and no member, officer, agent or
employee of Monroe County shall be liable personally on this Agreement or be subject to
any personal liability or accountability by reason of the execution of this Agreement.
27. FORCE MAJEURE. The Grantee shall not be liable for delay in performance or
failure to complete the project, in whole or in part, due to the occurrence of any
contingency beyond its control or the control of its contractors and subcontractors,
including war or act of war whether an actual declaration thereof is made or not, act of
terrorism impacting travel in the United States, insurrection, riot or civil commotion, act of
public enemy, epidemic, quarantine restriction, storm, flood, drought or other act of God, or
act of nature (including presence of endangered animal species which cannot be timely
removed in a safe manner or any act of any governmental authority which prohibits the
project from proceeding as described in the scope of services and incorporated references
and which the Grantee has exercised reasonable care in the prevention thereof.
However, lack of planning for normal and expected weather conditions for the time of year
the project is to be executed shall not constitute an act of God excusing a delay. Any
delay or failure due to the causes stated shall not constitute a breach of the Agreement;
however, the BDCC shall have the right to determine if there will be any reduction to the
amount of funds due to the Grantee after consideration of all relevant facts and
circumstances surrounding the delay in performance or failure to complete the project
within the contract period. Upon demand of TDC or BOCC, the Grantee must furnish
evidence of the causes of such delay or failure. BOCC shall not pay for any goods
received or services provided after the date(s) described in paragraph 1 and Scope of
Services.
28. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be regarded as an original, all of which taken
together shall constitute one and the same instrument and any of the parties hereto may
execute this Agreement by singing any such counterpart.
29. SECTION HEADINGS. Section headings have been inserted in this Agreement as
a matter of convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the interpretation of any provision of
this Agreement.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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FY 2009 Funding
Contract 10#: 515
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
(SEAL) Board of County Commissioners
Attest: Danny L Kolhage, Clerk of Monroe County
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OR TWO WITNESSES
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Print Name Print Name
Date: Date;
MONROE COUNTY ATTORNEY
AP~~Sl~:
YNTHIA L. HALL
ASSISTANT COUNTY ATTORNEY
Schooner Western Un/on Date 1- ().. 9- J.O 0 r7
FY 2009 Funding
Contract 10#: 515
16
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EXHIBIT B
SCHOOiVER fVESTERN UN/OiV
!!1~ TORlC VESSEL CONVEYANCE AGREE:\IENT
THIS SC?lOONER ~VESTERN UNION HISTORIC VESSEL
CONVEY ANCE AGREEMENT ("Agreement") is entered into this 22nd day of
October, 2007 ("Agreement Date"), between HISTORIC TOURS OF AMERICA,
INC. ("HT A"), 'vhose principal business address is 201 Front Street, Suite 224,
Key West, Flo~lja 303040 and whose FEIN is 59-2512154, and THE SCHOONER
WESTERN UN (ON PRESERVATION SOCIETY, INC. ("Foundation"), whose
principal businJ(ns address is P.O. Box 4379, Key West, Florida 33041 and whose
FEIN is 20-59j)g968.
I, RECITALS
A. HJ A is a Florida, for-profit corporation which, through various
affiliates and subsidiaries, operates sightseeing tours, themed retail establishments,
and attractions ,throughout the United States.
B. HTA owns a 130-foot historic "tall ship schooner" Schooner Western
Union ("the Vc ;sel"), free and clear of all liens and encumbrances. A copy of the
Vessel's most' ~ccnt1y issued Certificate of Documentation and Certificate of
Inspection are cttached hereto as Composi te Exhibit "A".
C. The Vessel has great historical significance to Key 'vVest and the State
of Florida. The Vessel "vas constructed in Key \Vest in approximately 1939 and
was a working s ~hooner laying communication cable throughout the Caribbean. It
was one of the last tall ships built in the State of Florida.
D. From approximately 1997 through 2006, HTA, through its wholly-
owned operatin!~ subsidiary, Schooner Western Union, Inc. ("SWU"), operated the
V essel as a tOUiI~~ st attraction. S WU sailed the Vessel approximately twice daily.
During the sailing experience, guests/passengers hoisted sails and partook in a
vintage historicd tall ship sailing cruise.
E. On or about August 5,1997, by virtue of Resolution No. 97-301, the
Ci ty of Key W~~;t designated the Vessel as the Official Flagship of the City of Key
West. A copy c f that Resolution is attached hereto as Exhibit "B".
I
F. F4)llndation is a Florida-chartered not-for-profit corporation, whose
mission is to ad v'ance and protect historical aspects of the Florida Keys.
Foundation has applied to the Internal Revenue Service ("IRS") for 501(c)(3)
status and is aV/aiting an IRS determination on that application.
G. F {undation specifically acknowledges that the V essells of historical
significance to he State of Florida, the Florida Keys, and Key West in particular.
2
H. G: \en its historic vintage, maintenance costs for the Vessel are
significant. Be.:ause they are "for-profit" entities, neither HT A nor S\VlJ are able
to secure and 01: tain grant and public funding for maintenance of the Vesse!.
I. Gi"en the Vessel's historical significance to the State of Florida, the
Florida Keys, arid Key "Vest in particular, and given the Foundation's mission to
restore, maintain and operate the Vessel in imparting the Vessel's history and
education to a1l who view and sail her, HTA desires to give the Vessel to the
Foundation as a gift under the conditions outlined in this Agreement.
II. CONVEYANCE AGREEMENT
A. H"~ A agrees to donate to the Foundation, as a gift, and the Foundation
agrees to accep>~ from HT A, as a gift, the Vessel, free and clear of all liens and
other encumbrI3,;lces, except as may be expressly outlined herein. The Foundation
agrees to cooperate with HT A in any manner reasonably requested by HT A to
maximize any t~~onomic and/or tax benefit to be realized by HT A as a result of
HT A's gift of He Vessel to the Foundation as contemplated herein.
B. Th ~ Foundation expressly acknowledges that HT A makes no
representations Jr warranties whatsoever regarding the condition of the Vesse!. In
fact, upon infarnation and belief, HT A believes that the Vessel needs significant
3
repair work in order to be seaworthy (see Composite Exhibit "A"). Hence, the
Foundation agr~es to take the Vessel "AS IS - WHERE IS."
C. Tlw Vessel is currently moored at the Historic Seaport pursuant to a
quasi-Sub-Leas(~ Agreement between SWU and the owners of the Schooner Wharf
Bar. Upon infolmation and belief, the owners of the Schooner Wharf Bar lease the
mooring area from the City of Key West, and, then sub-lease the mooring area to
SWU. The Fou1dation acknowledges that the Foundation shall acquire mooring
,
space for the v~ ssel either where the Vessel is currently moored or elsewhere
within the City of Key West.
III. FOUNDATION COVENANTS
A. Foundation expressly covenants and acknowledges that material
provisions ofth~ conveyance contemplated herein is the Foundation's agreement
to:
(1) at Foundation's sole cost and expense (including any grants,
loans, or gifts acquired by the Foundation) take all reasonable
and necessary steps to renovate the Vessel so that same is
sea'vvorthy and fully operational in every respect;
4
(2) once the Foundation renders the Vessel seaworthy, operate the
Vessel as a functioning vessel within the waters of Key West;
and
(3) permanently moor and operate the Vessel in Key \Vest.
B. Fo lndation expressly covenants and warrants as follows:
(I) within 180 days from the Agreement Date, Foundation shall, at
Foundation's sole cost and expense (including any grants, loans
or gifts acquired by the Foundation), take all reasonable and
necessary steps to renovate the Vessel, so that same is
seaworthy and fully operational as a commercial passenger
vessel in every respect;
(2) once the Foundation renders the Vessel seaworthy, the
Foundation, at the Foundation's sole cost and expense, shall
obtain and maintain all required licenses and appropriate
approvals from any and all governmental entities to operate the
Vessel as a commercial passenger vessel and the Foundation
shall operate the Vessel as a functioning vessel in the waters of
Key \Vest in perpetuity;
5
(3:1 the Vessel will be permanently moored in Key \N est;
( 4-) the Foundation shall, within ninety (90) days of the Agreement
Date, obtain 50 I (c )(3) status;
(5) the Vessel shall not sail more than six and one-half (6-1/2)
miles outside the corporate boundaries of the City of Key West
with the exception of sailings for Vessel maintenance;
(6) all Vessel maintenance shall occur within the United States;
(7) no Vessel maintenance (including the initial Vessel renovation)
shall take more than ninety (90) days, and, upon completion of
all such maintenance, the Vessel shall return directly to Key
West. The above notwithstanding, said ninety (90) day
limitation shall not apply for extraordinary repairs or
unforeseen events and acts of God;
($~ the Vessel shall be operated (i.e. for a minimum of 275 days
each year excluding time the vessel is out of service of
maintenance and repairs) primarily for public use (i.e. ticketed
sales);
6
(9~ the Vessel shall not be used for pleasure sails by the
Foundation's officers or board of directors;
(l0) the Vessel shall return to berth each day and shall not be used
for overnight charters; and
(It) at all times that Foundation, or any assignee of Foundation,
owns or controls the Vessel, at least 2 out of the initial 9
member board) of the Foundation's (or any assignee entity's)
board of directors shall be composed of HT A appointees. In
the event that the board shall ever be expanded, then in that
event HT A shall be awarded one board position for every 5
appointments (20% of all appointments).
c. If, It any time after the conveyance outlined herein, Foundation
receives a bona fide offer from a potential transferee of the Vessel, or Foundation,
itself, makes a '~ona fide offer to a potential transferee of the Vessel ("Offer"), then
Foundation, within three (3) days of either the Foundation's receipt or making of
the Offer, shaU provide to HT A a photocopy of the Offer includingl but not limited
to, all essentialerms related to the Offer (collectively, "Offer Package"). HT A (or
its assigns) shall then have fifteen (15) days from HT A's receipt of the Offer
Package in Whld1 to evaluate the Offer Package and, HT A (or its assigns) may
7
exercise the Off~r in the stead of the Offer's initial transferee. During this fifteen
(15) day evaluation period, Foundation shall promptly respond to all reasonable
inquiries from VT A (or its assigns) regarding the Vessel, the Offer Package, and
any other information within the purview of Foundation to assist HT A in
evaluating the (Iffer. \Vithin three (3) days after the expiration of the fifteen (I 5)
day evaluation period, HTA (or its assigns) shall notify Foundation, in writing, as
to whether HTA (or its assigns) wishes to exercise its covenanted right of first
refusal hereunder. If HT A (or its assigns) chooses not to exercise HT A's right of
first refusal (o~, if HT A fails to respond within three (3) days after the expiration of
the fifteen (IS) day evaluation period), then Foundation shall be free to convey the
Vessel to the illi tial transferee pursuant to the terms of the Offer, and this
covenanted right of first refusal will be of no further force and effect; however, all
I
other covenams outlined herein shall remain in full force and effect.
D. Th,~ parties specifically acknowledge and agree that the Foundation's
I
breach of any F' the covenants outlined in this Section III shall result in irreparable
I
harm to HTA, which harm cannot be remedied by money damages. Therefore, the
Foundation ex;yessly agrees that, if the Foundation breaches any of the above-
referenced cov.~nants, HTA (or its assigns) shall be entitled to (in addition to any
other remedies available at law or in equity) injunctive relief, mandatorily
enjoining the Foundation to perform the covenants as expressly agreed herein.
8
E. Ea ~h of these covenants, including HT A's right of first refusal
outlined in Section III(C), above, shall survive the closing and shall be covenants
"running wi th the V esse 1. "
IV. CLOSING LOGISTICS
A. Th~ closing shall take place within thirty (30) days of the date of this
Agreement at a closing agent, time and place to be selected by HT A. HT A shall
provide notice: ) the Foundation as to the closing time, date and place.
B. AH Vessel transfer costs associated with closing shall be borne by
HT A, and all q(ler costs shall be borne by the Foundation.
V. lVIISCELLANEOUS
I
,
A. Except as provided in Article Il(A), above, each party is responsible
for its own tax .;onsequences arising from this Agreement.
B. EA2H PARTY AGREES TO WAIVE A JURY TRIAL ON ANY
DISPUTE ARIl5ING UNDER THIS AGREEMENT AND EACH PARTY
,
AGREES TO fiA VE ANY DISPUTE HEARD BY THE COURT WITHOUT A
JURY.
C. Ei~ept as specifically outlined herein, no party shall be deemed an
agent, employee partner, etc. of the other party by virtue of this Agreement.
9
D. Fe] the purposes of interpreting any ambiguity arising under this
Agreement, no party shall be considered the "drafter" of same.
E. In the event of any litigation resulting from this Agreement, the
prevailing party shall be entitled to the recovery of reasonable costs and attorneys'
fees from the n(n-prevailing party.
F. All parties acknowledge and agree that, notwithstanding any provision
of maritime law to the contrary, in the event of any dispute arising under this
Agreement, the )Ole jurisdiction for any such dispute shall be in Monroe County,
Florida, and FIe> ida law shall govern any such dispute.
G. F<1lcndation specifically acknowledges that, unless expressly outlined
in this Agreement, HT A, SWU, or their agents, make no warranties whatsoever
with regard to 1Je Vessel or any other portion of the transaction hereunder. Any
and all negotiati)ns, statements, or representations preceding this Agreement
(whether oral dr written) shall be considered merged into this written Agreement.
No change, alteration, revision or amendment to this Agreement shall be effective
unless reduced:r) writing and signed by both parties.
H. All notices required hereunder shall be provided as follows:
10
To the Fl~undation: The Schooner Western Union Preservation
Society, Inc.
c/o Theo Glorie
P.O. Box 4379
Key West, Florida 33041
To HTA: Historic Tours of America, Inc.
c/o Ed Swift, III, President
201 Front Street, Suite 224
Key West, Florida 33040
Either p~uty may change the designation outlined in this provision by
providing written notice to the other party.
IfHT A bt~comes a non-viable entity and fails to provide the notice of change
as contemplated herein, all notices hereunder due to HT A shall be sent to:
Historic: lorida Keys Foundation, Inc.
510 Greene Street
Key West, Florida 33040
VI. ATTORNEY REPRESENTATION
The Fou~dation acknowledges, covenants, agrees and represents that the
Foundation has ,:onsulted independent legal counsel, and there have been no legal
representations made by Edwin A. Scales, III upon which the Foundation has
relied. Each P<Hty acknowledges, covenants, agrees, understands, and represents
that Edwin A. S~ales, III, has acted as counsel solely for HT A, and that no party to
II
this Agreemen': other than HT A, has relied in any way, shape or form on any
representation: y Edwin A. Scales, III, in this transaction, or any related
transaction. HTA expressly acknowledges that Edwin A. Scales, III has provided
no tax advice whatsoever regarding the conveyance contemplated herein. HTA
further acknowledges and represents that HT A has sought independent tax advice
regarding the proposed transaction.
XI. SIGNATURES
HISTORIC TOURS OF AMERICA, INC.
bj:~~~-" ..._~ -=-.-~
Print Name: EdlN:toJ (;, S~,.ft JIC
Title: ~.. f.s ~d e.v +-
Date: lfiZ"l.{Z061
THE SCHOONER WESTERN
PRESERVATION SOCIETY, INC.
I
I
BY'
Prin
Title:
Date:
12
EXHIBIT A
- .
rkpJlllncnt '.If H"'''c'l.md S,yunt\
l'nited Stat...:s Coast Guard
Certificate of Inspection I
C:niticltlon Date: 'i
Page: of:
,e, i::SH:R' L'ION Il3Jui20011 I
" I
:1
~C?SAIL AND JIB TOPSAIL FROM THE FULL SAIL CCNDITION. ,i
"
i
PM .;;NI) 6 :;0 AM WHEN I
~ATCH PATROL SERVICE TO BE PROVIDED BETWEEN THE HOURS OF 10:00 i
PASSENGERS ARE ON BOARD.
THE MINIMUM NUMBER OF CHILD-SIZE LIFE PRESERVERS REQUIRED IS NINE (:1, . ADDITIONAL CHILD-
SIZE LIFE PRESERVERS SHALL BE PROVIDED AS NEEDED FOR THE VESSEL TO H),;E A.'J APPROVED LIFE
PRESERVER SUITABLE FOR EACH CHILD ON BOARD.
---Bull Exams- --
Exam Type Next Exam Last Exam Prior E:xam
Drydock 30Apr2010 04Apr2Q08 29Nov2CJ4
Wood Hull Fastener 30Apr2013 04Apr2008
Wood Keel Bolt 29Nov2009 29Nov2004 I
I
I
---Lifesaving Equipment--- I
~umber Persons Required
70tal ~~~ipment :~r 93 Life Preservers (Adult) :33
~i:ecoats 7a~a:~ 0 0 Life Preservers (Child) :)
LifeccatsPcri::* 0 0 Ring Buoys (Total) 3
Lifeboats (Starbd)* 0 0 With Lights* 1
:-1otor Lifeboats* 0 0 With Line Attached* 1
Lifeboats W/Radio* 0 0 Other* .-
Rescue Boats/Platforms 0 0 Immersion Suits ()
Inflatable Rafts 2 40 Portable Lifeboat Radios il
Life Floats/E~oyant App 1 8 Equipped with EPIRB? 'res
(* included in totals) I
I ---l'ire Fighting Equipment---
Number of Fireman Our.fitsl 0 Number of Fire pumpsl 3
*Hose information*
Qty Diameter I.,ength
2 1.5 Other
*Fixed Extinguishing Systems*
Capaci ty Agent Space Protect~d
79 Halocarbon (Formerly: FM 200, FE241 ) Engineroom
*Fire Extinguishers Hand portable and ~emi-portablc.
I Qty Class Type I
1 B-I II
5 B- II
II
II
Ii
II
· · · END. * · Jj
" ~~
!:'l d':' p~' ',n < \1'11,'. r, ..0 d"n.{ ,f " . " ~n '."
I...,en:r:c; I Ion UCllt::l. v.:> ..JUI ,,-vvo
United States of America I Expirati ~~, Date: 03 Jul 2013
Department of Homeland Security IMO Nu-ber:
United States Coast Guard I
Certificate of Inspe('tion I:
Ii
"
"
'i
II
- . ---!i
';~s::~, 1'-.)11"1 C04 C,], ~ .p....:er 1:]4 S WI Ser.r':&
WESTERN UNION 238443 WCZ6537 Passenger (Inspected) i
- - 1
ra -,"9 Port ..-l,~ ',\":11 ,.1 -o'~epc"""er ?r0pi,.~ en
,KEY WEST Wood 220 Auxiliary Sail I
FL -j
Ip-ac. 8", I - .
[d'r,er', Call :]f~ o(n-e ;...) ~ I:' ,)~S T.:,..s f\....t -'-:-~'O. "/y-'- I.ength I
KEY WEST FL, UNITED STATES 15Dec1939 =1-91 1-72 R-86 8
,-
- .
:)WI'", :;=eralor I
THE SCHOONER WESTERN UNION THE SCHOONER WESTERN UNION PRI:SERVATION
PRESERVATION SOCIETY INC SOCIETY INC
1201 WHITE ST SUITE 101 1201 WHITE ST SUITE 101
KEY WEST, FL 33040 KEY WEST, FL 33040
UNITED STATES UNITED STATES
,.
This vessel must be manned with the following licensed and unlicensed personnel. Incluc:-ed in which there must be
o certified Iifeboatmen o certified tankermen o HSC tvoe ratina. and 0 GMDSS ODerat(~:s.
1 Master o Master & 1 st Class pilot o Radio Officer(s) o Chief E r !llneer QMED/Rating
o Chief Mate Mate & 15t Class Pilot o Able Seamen/ROANW o 1 st As~ t Engr/2nd Engr. o Oilers
o 2nd Mate/OICNW Lic. Mate/OICNW o Ordinary Seamen o 2nd As; Engr/3rd Engr. 1 AUX SL I
3rd Mate/OICNW 1 st Class Pilot 4 Oeckhands 3rd Ass! : "gr :1
I LIC Eng . I'
--
In addition, this vessel may carry 27 passengers, 0 other persons in crew, 0 persons in additi)rl to crew, and no others, Total
persons allowed: 33
:
Route Permitted and Conditions of Operation:
---Lakes, Bays, and Sounds plus Limited Coastwise---
ATLANTIC OCEAN AND GULF OF MEXICO BETWEEN CAESAR CREEK, KEY WEST &~D 8VERGLADES CITY ( LOPEZ
RIVER) , FLORIDA, NOT MORE THAN TWENTY (20) MILES FROM A HARBOR OF SAl':: REFUGE, CARRYING NOT
MORE THAN THIRTY-THREE (33) TOTAL PERSONS.
IF THE VESSEL IS AWAY FROM THE DOCK, OR PASSENGERS ARE ON BOARD OR H~,.\lE ACCESS TO THE
VESSEL, FOR A PERIOD EXCEEDING 12 HOURS IN ANY 24 HOUR PERIOD, AN AL l'3RNATE CREW SHALL BE
PROVIDED.
WHEN OPERATING DURING DAYLIGHT HOURS ONLY, THE VESSEL MAY CARRY NOT ':JRE THAN SEVENTY SEVEN
(77 ) PASSENGERS, PROVIDED THAT THE APPROVED SAIL PLAN IS REDUCED TO EKCLUDE THE MAIN
".SEE NEXT PAGE FOR ADDITIONAL CERTIFICATE INFORMATION".
I
I
With this Inspection for Certif cation haVing been completed at Key West, FL. the Officer In Chaqe Manne Inspection. Key ,
I
West, Florida certified the vessel, In all respects, IS In conformity with the applicClble 'Jesselw'3pefi'lon laws and the rules and
reaulatlons orescribed thereunder. I
::wr--= =:
Annual/PenodiclQuarterlv Reinspections This certiftC<!te.. isgued by: '.
Date Zone A/P/Q Siqnature r,,_/, /' '_
, ,/ - .
, ,
I - I- I- 1- M. L, H[RRING, LCDR U::5CG ~)f Direction
I _ I- I ~ I- ,)ti'cer r ':t ,]('.;U. ~.I.)r,r.. Ii'.:; t !I~r I
I: I ~ I ~ l i !
Key West. Flonda -- I
( "iOC~"JI~ Z--:. I~ I
- -
[_',,~,~ ,JH'/'-l" ,,,t!' ,S~"';G_ '-':'~-1141 ,RtI'l ~ ~CC".'~'/~" ~~IS '" It'
r. .., ,,. ~ I"~ "'~ ~ ~""'~~HI~\~t~I~~'f/~\.!-); " ~,! "t",
~. . .'oos. usdJ d:i::J~i:O\~Y, ~e" . :. - I, "~.': ,'. q. '< q\1B':.\PPRq\go .
UNITED STATES OF AMERICA "(~OIl6 I
v
DEPART)lENT OF HO~IELAND SECURITY f
UNITED STATES COAST GUARD ~
.-,
,
\
NA TIO~AL VESSEL DOCVMENT A TION CE;\TER
CERTIFICATE OF DOCUMENTATION ~'
(
VESSEL NAME OFFICIAl NUMBER IMO OR OTHER NUMBER 1 f,
I ,
WESTERN UNION 238443 ' "',
HAILING PORT HULL MATERIAl f
WOOD YES r;
NET TONNAGE LENGTH DEPTH ~
[-
72 NRT 86.8 23.4 6,7 r
W.
I~
.....:
~
OPERATIONAL ENDORSEMENTS ~
COASTWISE
REGISTRY
RECREATION
MANAGING OWNER
HISTORIC TOURS OF AMERICA INC
201 FRONT STREET SUITE 224
KEY WEST, FL 33040
ENTITLEMENTS
NONE
REMARKS
NONE
I
:SSUE DATE
DECEMBER 19,2006
THIS CERTIFICATE EXPIRES c:t-A.r ~ ~
DECEMBER 31, 2007 DIRECTOR NATIoNAL VESSEL DOCUMENT A TlON CENTER
RAJ
il<I5lIl5
PREVIOLS f'OITIO:--' OBSOLC:E rHIS "IRTI}:f(',\' F \I:, V \:1 'Tlr \ I : I QJ "