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HomeMy WebLinkAboutD. Tourist Development Council BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: JUNE 16,2010 Division: TDC Bulk Item: Yes -X- No Department: Staff Contact Person/Phone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Agreement with Marathon Garden Club, Inc. in an amount not to exceed $13,549, DAC III, FY 2010 Capital Resources for the Roof Repair project. ITEM BACKGROUND: TDC approved same at their meeting of April 27, 20 I 0 PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval TOTAL COST: $13,549 BUDGETED: Yes No COST TO COUNTY: $13,549 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes -X- No AMOUNT PER MONTH Year \ - 7Purc~Sing -X- Risk Management x APPROVED BY: County Atty ~ DOCUMENT ATION: Included Not Required_ DISPOSITION: AGENDA ITEM Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Marathon Garden Club, Inc. Contract # 689 - Effective Date: 6/16/1 0 Expiration Date: 9/30/10 Contract Purpose/Description: Approval of an Aqreement with Marathon Garden Club, Inc. in an amount not to exceed $13,549, DAC III, FY 2010 Capital Resources for the Roof Repair project. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext. ) (Department/Stop #) for BOCC meeting on 6/16/1 0 Agenda Deadline 6/1/1 0 CONTRACT COSTS Total Dollar Value of Contract: $ 13,549 Budgeted? YeslZJ No D Account Codes: Grant: $ County Match: $ Current Year Portion: $ 119-79040-530340- TB09-692-X-530340 ADDITIONAL COSTS Estimated Ongoing Costs: $_/yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW County Attorney Changes Needed YesD NolJ6 YesD No0 /=. YesD Nom YesDNo~ Date Out Risk Managetllent tILt ~}~~~ O.~fB./Purchasmg C. Hall Division Director Comments: OMB Form Revised 2/27/01 Mep #2 Grant Award Agreement THIS AGREEMENT (Agreement) is entered into this day of , 2010 by and between MONROE COUNTY, a political subdivision of the State of Florida (County or Grantor) and Marathon Garden Club, Inc. a not for profit business organized and operating under the laws of the state of Florida (Grantee). WHEREAS, the district pennies 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 Marathon Garden Club Roof Repair project; and WHEREAS, the Grantor and Tourist Development Council (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 a nature center 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 June 16, 2010 through to September 30, 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: Seqment 1: Roof Repair. 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 September 30, 2010 and all invoices pertaining to this project shall be submitted to the Finance Department of Monroe County no later than September 30,2010 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 Bonnie Eldridge, PO Box 500826, Marathon, FL 33050. Telephone: (305) 289-1685 or (269) 806-6531. E-mail: 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. Marathon Garden Club FY 2010 Funding Contract 10#: 689 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. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $13,549 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% (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 Board 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 BOCC. Marathon Garden Club FY 2010 Funding Contract 10#: 689 2 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) 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. Marathon Garden Club FY 2010 Funding Contract 10#: 689 3 All payment requests must be submitted no later than the completion of project of September 30, 2010. Invoices received after September 30, 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 September 30, 2010. Invoices received after September 30, 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 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 Marathon Garden Club FY 2010 Funding Contract 10#: 689 4 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 BOCC. (ii) At any time that the Grantee: (a) elects to stop the project or otherwise decide not to place into service for tourist-related purposes the facility acquired, constructed, or renovated with tourist development tax funding, (b) demolishes the project facility or divests itself of ownership or possession of the real property, or (c) 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 the Tourist Development funding. This provision shall survive the termination date of all other provisions of this contract for a period of ten years. Should the demolition, transfer of ownership, or change to a non- tourist related purpose occur after the facility has been used for tourist-related purposes for at least three (3) years, the amount of refund shall be pro-rated based on a useful life of ten (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 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 Marathon Garden Club FY 2010 Funding Contract 10#: 689 5 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 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-discrimination. 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 Marathon Garden Club FY 2010 Funding Contract 10#: 689 6 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 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. Marathon Garden Club FY 2010 Funding Contract 10#: 689 7 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. 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 TDC, the County, the State of Florida or authorized agents and representatives of said government bodies. 9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold harmless the BOCCITDC 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 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 Marathon Garden Club FY 2010 Funding Contract 10#: 689 8 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 USC 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 TDC 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. 12. TERMINATION. This Agreement shall terminate on June 30,2011. 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 Marathon Garden Club FY 2010 Funding Contract 10#: 689 9 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 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. Marathon Garden Club FY 2010 Funding Contract 10#: 689 10 (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 employee in violation of Section 3 of Ordinance NO.1 0-1990. 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 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 Marathon Garden Club FY 2010 Funding Contract 10#: 689 11 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 compensation; 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, Florida Statutes, 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 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. Marathon Garden Club FY 2010 Funding Contract 10#: 689 12 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 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. 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 (305) 295-3178 for details (Certificates can be e-mailed directly from the insurance agency to: Slavik-Maria@MonroeCountv-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 (certificate only for worker's compensation coverage). Insurance information should be mailed to: Monroe County Board of County Commissioners clo Risk Management P.O. Box 1026 Key West, FL 33041 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: Marathon Garden Club FY 2010 Funding Contract 10#: 689 13 For Grantee: Bonnie Eldridge PO Box 500826 Marathon, FL 33050 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. 25. ATTESTATIONS. 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. Marathon Garden Club FY 2010 Funding Contract 10#: 689 14 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 BOCC 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. Marathon Garden Club FY 2010 Funding Contract 10#: 689 15 IN WITNESS WHEREOF. the parties hereto have caused this Agreement to be executed the day and year first above written. (SEAL) Attest Danny L. Kolhage, Clerk Board of County Commissioners of Monroe County Deputy Clerk Mayor/Chairman (CORPORATE SEAL) Attest: By, UJCLU tJ "- IE fA ILL " Secretary C II:tC41{~ ~/A'll\"ck Print Name Date: y /~ cl j;~t / [, I / OR TWO WITNESSES Marathon Garden Club, Inc. Date: (1) (2) (1 ) Print Name (2) Print Name Date: Date: Marathon Garden Club FY 2010 Funding Contract 10#: 689 MO,/,1ROE, COUN""T,Y ATT,O"RNEY t~t~~:~~t&:P?M: ~J CYNTHIA L. HALL ASSISTANT COUNTY ATTORNEY Date 4 \';1 - ,.,.lo! 9 16 <( .... - e:Q - ::J: X w ).: I- ..... i=0 Zo::: w a.. u.. u.. 00 w w :E:E << ZZ e a:E -- r:: r:: 0,) 0,) E E tn>" ~~ .c: a... 0,2 o r:: 0,) _.0 .t::: o 0 Or:: .0 .::: :co. j!Q. Q.~ E 0,) o.c: 0- a... tn : .r:: o .8 :- .t::: "'0 :::) 0,)- ~ r:: o 0,) ::::: E o 0,) ~~ r:: :::) 0.0 1:.S 0,) 0,) E :: 0,),2 ~ . :::) >..:t:: ~I .0 - ~ I' E 0.- ...- g.~ G~1;;E w a... :::) 0,) J,2E~ Or::O,):::) ~ .2 0,) .0 (L .; 1: .S o E e: f-.o<..!)....... (/):::) .1: f-fI):t::O,) Z"'O:9E w r::.c: >.. -.:;:: 0 >< 0 ..:::::It::0,)a.. o o.~ 0,) wr::.c:.c: (/).~-- u.. fI).5 r:: ~ '- Or::~:S ~:::)-~ wor::- coUO,)~ ~ '. E "'0 :J ~I G .2 ZZoo "'0.5 c o :;:: I.- o CL. U o I- (]) ::J o > t+- O (]) ::J -0 (1) ..c () (/) +- +- o 0 ~ >-~ ,<<- ="'0 ..c<<- 00) +-0 UI- o I- .- 0 :!:: 00 c- 0 EO) 00 c..c Vl I- ..c U 0 a. oa.' ~c B 0 EO). :::> EE ~o VI 0 VI :::> * 0) 0 .~ ..c <<-"'0 OI-l- o 0 0-. 0) "'0 0) .~ e+- ow>O) =:= +-0) 0) ._ - 0) c "'0 ..c "<t 1:= 0) VI .- 0) VI 0.l E "'0 a. :!:: (j) ._ 0 0 7'"< 0) 0) :=-l= E v "'0 _ 0 2 E c ~ .~ 0:::> 0)>:""'0 0 cO) E.,g VlVIO) O'~<>=c O)I-+- .000) o "'0 0) cO)O) (/) - 0 7'"< :: c v> .~ <>= a. 0) ...:. 0) I- C 0)00) 1-"'0 oE..c"'O> "'0 0 c O)co VlO)-O) ~-t o+- a.E I- ~ 0) I- >-~~ .!;!! 0) a. 0) 0 VI 0 0) VI 0) CL -0 E 0) 0)>< "'0 _ <<- a. l.() +-0) C ..00 a. VI 0 I- :!::: o . I- O>-EO)VI 0) 0) +- ..0 .~ ~ E 0) ..0 +- CL a. ..0 _O)OVl > = 0 > ..0 E C0 0 ~ "'0 0 .....J 0) 0 >- = .~ 00 _1--'0) ~_~CLOa. E~= OO=EO)Vl==+-~O):::> 0)0C0+- 0 0---7'"< '> _ I VI 1;; +- 0 C 0 0 - .~ c Ck::>C0CCCO)01;;1;;+-E> 0 __Vla.CccVleO) __cCLU . . . . . . . . . . BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: JUNE 16.2010 Division: TDC Bulk Item: Yes -X- No Department: Staff Contact PersonlPhone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Agreement with Key West Players, Inc. covering the Stage Repair and Rigging Renovation at the Waterfront Playhouse in an amount not to exceed $25,000, DAC I, FY 2010 Capital Resources. ITEM BACKGROUND: TDC approved same at their meeting of April 27, 2010 PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: ST AFF RECOMMENDATIONS: Approval TOTAL COST: $25,000 COST TO COUNTY: $25,000 BUDGETED: Yes ~ No SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes -X- No AMOUNTPERMONTH_ Year f(;hasing Risk Management X APPROVED BY: County Atty DOCUMENT ATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Key West Players, Inc. Contract #_ 692 Effective Date: 6/16/10 Expiration Date: 12/31/10 Contract Purpose/Description: Approval of an Aqreement with Key West Players, Inc. coverinq the Staqe Repair and Riqqinq Renovation at the Waterfront Playhouse in an amount not to exceed $25.000, DAC I, FY 2010 Capital Resources. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext.) (Department/Stop #) for BOCC meeting on 6/16110 Agenda Deadline 6/1/10 CONTRACT COSTS Total Dollar Value of Contract: $ 25,000 Budgeted? YeslZJ No D Account Codes: Grant: $ County Match: $ Current Year Portion: $ 117-77040-530340-TB07-688-X-530340 - - ----- ADDITIONAL COSTS Estimated Ongoing Costs: $_/yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Division Director Changes Needed YesD No[:r Date Out Risk Management ~r-T yJ O.M~B7urchasing County Attorney /' YesD No0 YesD NoE2f C. Hall YesD NoIT Comments: OMB Form Revised 2/27/01 Mep #2 Grant Award Agreement THIS AGREEMENT (Agreement) is entered into this day of , 2010 by and between MONROE COUNTY, a political subdivision of the State of Florida (County or Grantor) and Key West Players, Inc. a not for profit business organized and operating under the laws of the state of Florida (Grantee). WHEREAS, the district pennies 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 Waterfront Playhouse Stage Repair and Rigging Renovation project; and WHEREAS, the Grantor and Tourist Development Council (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 and improve the property for use as an auditorium which is 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 June 16, 2010 through to December 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: Seqment 1: Stage Repair and Rigging Renovation. 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 December 31, 2010 and all invoices pertaining to this project shall be submitted to the Finance Department of Monroe County no later than December 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 Thomas Lavender, PO Box 724, Key West, FL 33040. Telephone: 305-304-7577. E-mail: kwtoml@yahoo.com. Should there be a change in the project manager specified in the Grantee's application, a new project Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 manager shall be designated and notice with new contact information shall be provided in writing to the TDC administrative office. 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. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $25,000 for materials and services used to repair and improve 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% (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 Board 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 Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 2 obligation to pay under this Agreement is contingent upon an annual appropriation by the BOCC. 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) 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. Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 3 All payment requests must be submitted no later than the completion of project of December 31, 2010. Invoices received after December 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 December 31, 2010. Invoices received after December 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 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 Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 4 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 BOCC. (ii) At any time that the Grantee: (a) elects to stop the project or otherwise decide not to place into service for tourist-related purposes the facility acquired, constructed, or renovated with tourist development tax funding, (b) demolishes the project facility or divests itself of ownership or possession of the real property, or (c) 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 the Tourist Development funding. This provision shall survive the termination date of all other provisions of this contract for a period of ten years. Should the demolition, transfer of ownership, or change to a non- tourist related purpose occur after the facility has been used for tourist-related purposes for at least three (3) years, the amount of refund shall be pro-rated based on a useful life of ten (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 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 Waterfront Playhouse Stage Repair FY 20 1 0 Funding Contract 10#: 692 5 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 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-discrimination. Contractor agrees that it will not discriminate against any employees or applicants for employment or against persons for any other benefit or Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 6 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 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. Waterfront Playhouse Stage Repair FY 20 10 Funding Contract 10#: 692 7 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. 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 TDC, the County, the State of Florida or authorized agents and representatives of said government bodies. 9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold harmless the BOCCITDC 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 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 Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 8 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 use 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 USC 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 TDC 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. 12. TERMINATION. This Agreement shall terminate on December 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 Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 9 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 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. Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 10 (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 employee in violation of Section 3 of Ordinance 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 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 Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 11 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 compensation; 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, Florida Statutes, 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 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. Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 12 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 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. 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 (305) 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 TOe 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 (certificate only for worker's compensation coverage). Insurance information should be mailed to: Monroe County Board of County Commissioners c/o Risk Management P.O. Box 1026 Key West, FL 33041 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: Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 13 For Grantee: Thomas Lavender Waterfront Playhouse PO Box 724 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. 25. ATTESTATIONS. 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. Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 14 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 BOCC 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. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Waterfront Playhouse Stage Repair FY 2010 Funding Contract 10#: 692 15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. (SEAL) Attest: Danny L. Kolhage, Clerk Board of County Commissioners of Monroe County Deputy Clerk Mayor/Chairman (CORPORATE SEAL) Attest: By. By Secretary Date: iZert wt.fiu..~~*e. Print Name Date: 4' . c... 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Q) 0 0 "0 :J :J re I... ..0 ..0 > Q) - Q) :J I... :J Vl u u Vl I- <+= BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: JUNE 16,2010 Division: TDC Bulk Item: Yes -X- No Department: Staff Contact Person/Phone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Amendment to Agreement with Key West Symphony Orchestra, Inc. covering the Key West Symphony Orchestra between November, 2009 and July, 2010 to revise schedule and budget. ITEM BACKGROUND: TDC approved same at their meeting of April 27, 2010 PREVIOUS RELEVANT BOCC ACTION: BOCC approved original agreement at their meeting of October 21, 2009 CONTRACT/AGREEMENT CHANGES: Amendment ST AFF RECOMMENDATIONS: Approval TOTAL COST: $13,391 BUDGETED: Yes ~ No COST TO COUNTY: $13,391 SOURCE OF FUNDS: TDC AMOUNTPERMONTH_ Year REVENUE PRODUCING: Yes-X- B/~rchasing Risk Management X APPROVED BY: County Atty ~ Not Required_ DOCUMENTATION: Included X DISPOSITION: AGENDA ITEM # Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Key West Symphony Orchestra, Inc. Contract Effective Date: Expiration Date: TDC ID#: 591 10/1/09 10/29/10 Contract Purpose/Description: Approval of an Amendment to Agreement with Key West Symphony Orchestra, Inc. covering the Key West Symphony Orchestra between November, 2009 and July. 2010 to revise schedule and budget. Contract Manager: Maxine Pacini (Name) 3523 (Ext. ) TDC # 3 (Department/Stop #) for BOCC meeting on 6/16/10 Agenda Deadline: 6/1/1 0 CONTRACT COSTS Total Dollar Value of Contract: $ 13,391 Budgeted? YeslZJ No D Account Codes: Grant: $ County Match: $ Current Year Portion: $ 115-75011-530340- TC-05-308-X-530480 115-75011-530340- TC-05-308-X-53041O ADDITIONAL COSTS Estimated Ongoing Costs: $~yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Division Director Changes Needed YesD No!!] YesD Nol2r YesDNoD YesD Nor:( Date Out O. . '/Pfchasing County Attorney Risk Management Comments: OMB Form Revised 2/27/01 Mep #2 AMENDMENT (1st AMENDMENT) TO AGREEMENT THIS AMENDMENT to agreement dated the day of 2010, is entered into by and between the Board of County Commissioners for Monroe County, Florida, a political subdivision of the state of Florida ("County"), and Key West Symphony Orchestra, Inc. ("Event Sponsor"). WHEREAS, there was an agreement entered into on October 21. 2009 between the parties, awarding $16,739 for the production of Key West Symphony Orchestra between November, 2009 and July, 2010; and WHEREAS, it has become necessary to revise the schedule of activities within the agreement outlined as exhibit C; and WHEREAS, due to a reduction in the number of activities the event sponsor will produce, the funding allocation shall be reduced from the original allocation and the event budget shall be revised; and NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties agree to the amended agreement as follows: 1. Paragraph 1 of the agreement shall be revised to read as follows: Amount: County shall pay a sum not to exceed $13,391 (Thirteen Thousand, Three Hundred and Ninety One Dollars) effective October 1, 2009 for promotion and related expenditures, as described in the event budget, attached hereto as Exhibit "0", for production of the Key West Symphony Orchestra between November, 2009 and July, 2010. No amendments shall be made to Exhibit "0" after approval of contract. Payment will be made only after Event Sponsor submits invoices and support documentation acceptable to the County's Finance Department. The advertising and promotion budget using County funding may be altered as to the individual line items, or components, within 10% of the amount stated for that item or component, without increasing the total dollar amount and without requiring a written amendment to this agreement. The general non-allocated section of an Umbrella event budget shall not exceed 15% of the total budget and may be utilized for unforeseen permissible expenditures and for those budget lines that may require additional funds. Monroe County's performance and obligation to pay under this agreement is contingent upon an annual appropriation by the County. 2. Exhibit C - Schedule of Events shall be revised and attached hereto. 3. Exhibit 0 - Event Budget Breakdown shall be revised and attached hereto. 4. The remaining provisions of the contract dated October 21, 2009, remain in full force and effect. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Amendment # I Key West Symphony FY 20 lO eontract #: 591 fax l'rOM ; ~~"l ~GG tI"l;:J11 115-115-111 11;:J:;:Jl:Ip Pg: 1 -- -~ -- --~--~ -~ : IN WfTlriESS WHEREOF, the parties have set their hands and seal on the d~ and year lIrst above writ1en. (SEAL) Attest: Oanny L. Kolhage, Clerk Board of County Commissioners of Monroe County Deputy Clerk Mayol1ChatrTnan {CORPORATE SEAL} AttasI: I By. rid d(~ , Seeretary ftu.J.c Vt".t7cr- &2' eJ34:~ ~ 4L}~ At So Print Name Key West Symphony Orchestra, me. --' /' .../, -~/~,.., 0Il;""~""""',/"">/~.,,,,- ~, ,."-. ~4':7g ./~. 1.17.' " ~/ /.- PresIftii. ...- nttEwiftt Sponsor {nc-- . , .~C ~ ~ L~~~ !:!.tf.1Jf3't-- Print Name t J OR TWO wrTNESSES (1) (2) (1) Print Name (2) .ti.\'" Prirlt Name ~meot #) Key WC$tS)'n1pboa)' - fY 2010 C~~:$jJ t t EXHIBIT C MONROE COUNTY TOURIST DEVELOPMENT COUNCIL CULTURAL UMBRELLA SCHEDULE OF EVENTS FISCAL YEAR 2010 EVENT NAME: KW Symphony Orchestra/KW Symphony Broadway Bound Productions List scheduled event activities in date order. If pre-promotion is included, indicate the event dates of the next season. If funded, funds will be reimbursed only for the promotion of event activities listed here. December 15, 16 Master Concerts I January 13, 14 Master Concerts II April 22 Master Concerts III June 2010 Artists 1-10 Concerts throuqhout Key West with Younq July 2010 Sol Fest Finale Concert IF FUNDED, EXHIBITS A AND B WILL BECOME PART OF YOUR CONTRACT AND TRANSMITTED TO THE OFFICE OF THE CLERK OF THE COURT. EXHIBIT 0 MONROE COUNTY TOURIST DEVELOPMENT COUNCil CULTURAL UMBRELLA EVENT BUDGET BUDGET BREAKDOWN line items listed below must be approved by the appropriate agency of record There will be no amendments to this budget (Exhibit D) after BOCC approval of Agreement FISCAL YEAR 2010 EVENT NAME: Key West Symphony 2010 MEDIA PLACEMENT & PRODUCTION COSTS: newspaper, radio, magazines, TV, website/internet advertising only TOTAL: 11,391 $ $ $2,000 $ $ $ $13,391 PROMOTIONAL SIGNS: posters/banners PROMOTIONAL ITEMS: t-shirts, hats, jackets, koozie cups DIRECT MAIL PROMOTIONS: brochures/pamphlets/ postage & Shipping PROGRAMS: PUBLIC RELATIONS 'GENERAL NON-ALLOCATED 'GENERAL NON ALLOCATED MAY NOT EXCEED 15% OF THE ABOVE BUDGET. AND CAN ONLY BE UTILIZED FOR ACCEPTABLE TDC ITEMS. ACTUAL EXPENDITURES MAY DEVIATE NO MORE THAN 10% FROM THE BUDGETED LINE ITEMS NOTED ABOVE. MARKETING EXPENSES FOR EVENTS HELD OUTSIDE MONROE COUNTY SHALL NOT BE REIMBURSED/DIRECT PAID FUNDING AGREEMENT THIS AGREEMENT is made and entered into by and between Monroe County, Florida, a political subdivision of the state of Florida ("County"), and Key West Symphony Orchestra, Inc. ("Event Sponsor") on this _ _ day of ~ o~r _,2009. WHEREAS, the umbrella Organization)under contract to the County has recommended to the Monroe County Tourist Development Council ("TOG"), which has endorsed the recommendation, that certain monies be allocated for promotion of an event by Event Sponsor; NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1 . Amount: County shall pay a sum not to exceed $16,739 (Sixteen Thousand, Seven Hundred and Thirty Nine Dollars) effective October 1, 2009 for promotion and related expenditures, as described in the event budget, attached hereto as Exhibit "0", for production of the Key West Symphony Orchestra between November, 2009 and July, 2010. No amendments shall be made to Exhibit "0" after approval of contract. Payment will be made only after Event Sponsor submits invoices and support documentation acceptable to the County's Finance Department. The advertising and promotion budget using County funding may be altered as to the individual line items, or components, within 10% of the amount stated for that item or component, without increasing the total dollar amount and without requiring a written amendment to this agreement. The general non- allocated section of an Umbrella event budget shall not exceed 15% of the total budget and may be utilized for unforeseen permissible expenditures and for those budget lines that may require additional funds. Monroe County's performance and obligation to pay under this agreement is contingent upon an annual appropriation by the County. 2. Duties of Event Sponsor: Event Sponsor shall provide promotion and related services as described in the Schedule of Events, Exhibit "C", attached hereto. All advertising and public relations services or supervision of advertising and public relations will be provided through the contracted agencies of the TDC and County. 3. Invoicing: A list of Acceptable Event Marketing Expenses is attached to the contract as Exhibit "A". The contracted agencies of record shall receive payment of work in progress upon submission of documented invoices associated with the event. Event sponsor fully understands that funding is obtained from tourist development taxes for which the fiscal year ends September 30, 2010. Event sponsor also understands that the funding process through which this contract was made available by County requires event sponsors to submit their payment requests as quickly as possible and to finalize all such requests before the end of the fiscal year, if at all possible. In order for the tourist development taxes to be utilized most effectively for the purpose for which they were authorized, attracting and promoting tourism, the budgeting process of the County requires the event's funding to be concluded in a timely manner. In recognition that the timeliness of payment requests is of extreme importance to the funding of future advertising and promotion for the stability of the tourist-based economy, Event Sponsor agrees to submit by September 30, 2010, all invoices and support documentation as required by the County's Finance Department rules and policies. Event Key West Symphony Cultural Umbrella Funding FY 2010 Contract 10#: 591 Sponsor shall not be reimbursed nor will Event Sponsor's vendors be paid directly for any invoices received by the County after September 30, 2010, except that for events with promotional expenditures incurred between July 1 and September 30, 2010, invoices must be submitted within ninety (90) days of the conclusion of the event. 4. Reimbursement to County: Event Sponsor shall reimburse County for any amount of funds expended by County in connection with an event which does not occur as a result of any act or omission by Event Sponsor. 5. Indemnification: Event Sponsor covenants and agrees to indemnify and hold harmless Monroe County, the Tourist Development Council, the 3406 North Roosevelt Corporation (Visit Florida Keys), their officers, employees and agents from any and all claims for bodily injury (including death), personal injury, and property damage (including property owned by Monroe County) and any other losses, damages, and expenses (including attorney's fees) which arise out of, in connection with, or by reason of the services provided, event sponsored, or other activities and funding associated with this agreement. 6. Claims and Venue: Event Sponsor agrees to notify County immediately of any claims suits, or action made against the Event Sponsor that is related to the activity under this agreement, and will cooperate with County in the investigation arising as a result of any action, suit, or claim related to this Agreement. Any legal proceedings arising out of this agreement shall be in accordance with the laws of the State of Florida in the 16th Judicial Circuit for Monroe County; venue shall be in Monroe County, Florida. 7. Records: Event Sponsor shall maintain records pursuant to generally accepted accounting principles for four (4) years after the event and shall permit County and its agents and employees access to said records at reasonable times. 8. Termination: County may terminate this agreement without cause by providing written notice to Event Sponsor, through its officer, agent, or representative, no less than sixty (60) days prior to the event and may terminate for breach upon providing to Event Sponsor, through its officer, agent or representative, notice at least seven (7) days prior to the effective date of the termination. Notice is deemed received by Event Sponsor when hand delivered, delivered by national courier with proof of delivery, or by U.S. mail upon verified receipt or upon the date of refusal or non-acceptance of delivery. 9. Conflicts: Event sponsor is an independent contractor and shall disclose any potential conflicts of interest as defined by Florida Statutes, Chapter 112 and Monroe County Code, Article XXI. 10. Non-Collusion: By signing below, Event Sponsor warrants that he/she/it has not employed, retained or otherwise had act on his/her/its behalf any former County officer or employee in violation of Section 2 of 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 contract without liability and may also, at its discretion, deduct from the contract 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. Key West Symphony Cultural Umbrella Funding FY 20 10 Contract 10#: 591 2 11. Public Entities Crimes: 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 a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract 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. 12. LOQo: Logo Usage guidelines are attached to this contract as Exhibit "B". All promotional literature and display advertising with the exception of generic advertising must display the "Florida Keys & Key West Come As You Are" logo/trade mark (as per attached logo sample). This logo/trade mark was adopted by the TDC and County in December 2006. In-Countv Logo: The logo that includes the "Monroe County Tourist Development Council" designation is to be utilized in all approved in-county print newspaper ads, magazine ads, street banners, posters and other approved signage efforts. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council". To seek approval, clarification and/or logo in electronic format (eps or jpg file), contact John Underwood with Tinsley Advertising at 305-856- 6060. Out of County Loao: The out of county logo does NOT include the "Monroe County Tourist Development Council" designation and is to be utilized in all other efforts including any approved out- of-county print newspaper ads, magazine ads, television commercials, internet advertising (banners, buttons, e-mail blasts), direct mail promotions (brochures and pamphlets) and any approved promotional items including programs, T-shirts, hats, jackets, trophies and koozie cups. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council". To seek approval, clarification and/or logo in electronic format (eps or jpg file), contact Sharon Joseph or John Underwood at Tinsley Advertising at 305-856-6060. 13. Insurance Requirements: Event Sponsor, as a pre-requisite of the Special Event governed by this agreement, shall obtain, at its own expense, insurance as specified in this section. Event Sponsor will not be permitted to commence work associated with the Event (including pre-staging of personnel and material) until satisfactory evidence of the required insurance has been furnished to the county as specified below. Event Sponsor shall maintain the required insurance throughout the entire duration of the Special Event and any extensions specified in any attached schedules. Failure to comply with this provision may result in the immediate suspension of the Event until the required insurance has been reinstated or replaced. Event Sponsor shall provide, to the County, as satisfactory evidence of the required insurance, either: * Certificate of Insurance or * Certified copy of the actual insurance policy 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 Event. All insurance policies must specify that they are not subject to cancellation, non-renewal, material change or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. Key West Symphony Cultural Umbrella Funding FY 2010 Contract 10#: 591 3 Acceptance and/or approval of Event Sponsor's insurance shall not be construed as relieving Event Sponsor from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, its employees and officials will be included as "Additional Insured" on all policies. Any deviations from these General Insurance Requirements must be requested in writing on the County form titled "Request for Waiver of Insurance Requirements" and must be approved by Monroe County Risk Management. Event Sponsor shall furnish the County with a certificate evidencing the insurance required by this paragraph not later than twenty (20) days prior to the event. Prior to commencement of work governed by this contract, Event Sponsor shall obtain General Liability Insurance. Coverage shall be maintained through out the life of the contract and include, as a minimum: * Premises Operations * Products and Completed Operations * Blanket contractual Liability * Personal Injury Liability * Expanded Definition of Property Damage The minimum limits acceptable shall be: * $1,000,000.00 combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: * $500,000.00 per person * $1,000,000.00 per Occurrence * $100,000.00 Property Damage An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the acceptance of work by the County. Should the Event involve the serving or distribution of alcoholic beverages, Event Sponsor shall obtain prior to the Event, a Liquor Liability insurance policy naming Monroe County as a co- insured. The Event Sponsor's General Liability Insurance policy shall include Liquor Liability with limits equal to those of the basic coverage. A separate Liquor Liability policy is acceptable if the coverage is not more restrictive than the Sponsor's General Liability policy. REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK Key West Symphony Cultural Umbrella Funding FY 2010 Contract 10#: 591 4 Board of County Commissioners of Monroe County a~~~ Deputy Clerk (CORPORA TE SEAL) Attest: ~i!'-~' >n......,~ Mayor/Chairman Key West Symphony Orchestra, Inc. By. Secretary By 1) J l "--f .... I -~~"~ Print Name , / f ... /r / {i,X"\-- ('... ~ Print Name ...., ,-J ~T Date: OR TWO WITNESSES (1 ) (2) Print Name Print Name Date: Date: Key West Symphony Cultural Umbrella Funding FY 20 to Contract 10#: 591 MONROE COUNTY ATTORNEY ;j)PP~ AS. ra~9JM: ~YNTHlkRALL ASSI~T~NT q~~'f7a ~b10RNEY Date . 5 EXHIBIT A Acceptable Event MarketinQ Expenses (Desti nationlTurn Key/Cultura IIFishi n9 Events) soee 9/20106 ADVISORY COMMITTEES (UMBRELLAS/DISTRICT ADVISORY COMMITTEES) AND EVENT COORDINATORS' RESPONSIBILITY: It is the responsibility of the Advisory Committees (Umbrella/District Advisory Committees (DAC)) and Event Coordinators to keep apprised of all Monroe County Tourist Development Council's policies and procedures pertaining to event funding. 01/22/92 When DAC event proposals are received, they will be distributed to DACs for review and recommendations to the TDC. Upon approval of the TDC of any event funding recommendations, a contract will be entered into by the applicant and SOCC. The SOCC has final approval of all contracts. Any Request for Proposal (RFP) response received after the specified deadline, as determined within the RFP, will not be accepted. TDC 7/21/93 This policy mirrors that of the Soard of County Commissioners. SOCC 9/8/93 EVENT FUNDING: The TDC has established several categories of events that may receive funding. There are four categories of events that may receive funding from the TDC; Destination Events; Turnkey Events; Cultural Events and Fishing Events. All advertising and promotional items shall follow the logo/guidelines for the Monroe County Tourist Development Council. TDC funded items are NOT to be sold. 9/14/94 Only the items listed will be reimbursed for the described events. All event coordinators will receive a reimbursement/direct payment packet that includes an executed copy of the funding agreement. The packet provides guidelines required for reimbursement/direct payment of Acceptable Event Marketing Expenses. No individual applications for Event funding will be considered out of the Two Penny Event Fund other than the Umbrellas (Cultural, Fishing & Diving). 7/26/95 DESTINATION EVENTS: Destination events will be paid as per the scope of services within the contract and those acceptable items/expenses listed below. Destination events may utilize up to 10% of their approved line item budgets for in-county hard media and public relations. A general non-allocated line item is not to exceed 15% of the total budget and can only be utilized for acceptable TDC items as listed in this section. There cannot be more than a 10% deviation on the approved line item budget. Media Placement & Production Costs: newspaper; magazines, radio; TV; website/internet advertising onll Promotional Siqns: posters and banners Promotional Items: T-shirts; hats; jackets; koozie cups. Refer to Sales/Resale statement. Key West Symphony Cultural Umbrella Funding FY 2010 Contract IOU: 591 6 Direct Mail Promotions: brochures and pamphlets including postage/shipping. This is a direct mail promotional brochure/pamphlet utilized for pre-event advertising. Programs: ToC will pay for an event program of listed or schedule of activities and information on the event, an amount not to exceed 50% of cost, including production and printing, of program as outlined in contract budget. Public Relations: Public relations expenses that are approved by public relations agency of record. TURNKEY EVENTS: TurnKey events will be paid based upon the scope of services within the contract. CUL TURALJFISHING UMBRELLA EVENT FUNDING: Any event of a fishing or artistic/special/dramatic nature shall apply for funding under the appropriate umbrella organization. Within the Cultural and Fishing Umbrella events funding process, the monies received by the event coordinator is to be used within the approved acceptable list of ToC expenses listed below without any restriction as to out-of-county advertising. Each Umbrella shall appropriate a minimum of 30% of the funds of the Umbrella for out-af-county advertising and public relations. 70% or the remainder that has not been allocated to the advertising/public relations agencies of record within the Umbrellas, shall be allocated by the Umbrella to the applicants for event funding. The budget, which is included with the application, will be individually reviewed by the Umbrella, the applicant and the advertising/public relations agencies of record. There cannot be mare than a 10% deviation on the approved line item budget. No amendments to budgets will be permitted after this approval process. 9/14/94 General non allocated line item is not to exceed 15% of the total budget and can only be utilized for acceptable ToC items listed below. If an Umbrella does not allocate all the funds earmarked for direct event funding within a district, the remaining funds shall be allocated and utilized to advertise that specific district as recommended by the Umbrella committee. Any event receiving funding under the Umbrella organization will not be eligible for additional funding under another ToC event category. 08/14/91 CULTURAL EVENTS: Media Placement & Production Costs: newspaper; magazines, radio; TV; website/internet advertising onll Promotional Siqns: posters and banners Promotional Items: T-shirts; hats; jackets; koozie cups. Refer to Sales/Resale statement. Direct Mail Promotions: brochures and pamphlets including postage/shipping. This is a direct mail promotional brochure/pamphlet utilized for pre-event advertising. Proqrams: ToC will pay for an event program of listed or schedule of activities and information on the event, an amount not to exceed 50% of cost, including production and printing, of program as outlined in contract budget. Public Relations: Public relations expenses that are approved by public relations agency of record. Key West Symphony Cultural Umbrella Funding FY 2010 Contract 10#: 591 7 FISHING EVENTS: Media Placement & Production Costs: newspaper; magazines, radio; TV; website/internet advertising onll Promotional Siqns: posters and banners Promotional Items: T-shirts; hats; jackets; koozie cups; trophies/awards (Fishing Tournaments only) 1. Refer to Sales/Resale statement. Direct Mail Promotions: brochures and pamphlets including postage/shipping. This is a direct mail promotional brochure/pamphlet utilized for pre-event advertising. Programs: TDC will pay for an event program of listed or schedule of activities and information on the event, an amount not to exceed 50% of cost, including production and printing, of program as outlined in contract budget. Public Relations: Public relations expenses that are approved by public relations agency of record. 1 TROPHIES: framed art work, framed photography, engraved crystal and glass, plaques, trophies, sculptures (fiberglass, metal, glass & wood) and framed certificates shall constitute a trophy. All such trophies must include the appropriate information as outlined in the policies (tournament name, date, and location). 9/14/94 For TROPHY reimbursement, Tournament Directors must present the original invoice of the trophies, a notarized list of winners of the event, and a notarized list of the plates and/or glass etching from the engraving company. 8/20/03. 2 ADVERTISING THROUGH THE INTERNET: The TDC will pay for Internet advertising on web sites (banners, buttons, website links), and E-mail blasts. Internet advertising links may go to the event website. Logo is required on banners and E-blasts. No payment will be made for development or operation (hosting) of website. sacc 5/16/06 SALE/RESALE OF TOC FUNDED ITEMS: Items funded, including creative and resulting work product, by the BOCCfTDC, in accordance with Florida Public Records Law, are owned by the BOCCfTDC and as such may not be sold. 09/14/94 Key West Symphony Cultural Umbrella Funding FY 2010 Contract 10#: 591 8 EXHIBIT B LOQo/Acknowledqement Usaqe Guidelines For Events DestinationrrurnKey/CulturallFishing Events soee 12120106 Color ads four (4) color processing printing 06/12;91 Black & white ads shall include the Florida Keys and Key West logo in PMS black. 06/12/91 Use on all printed material as listed under the Acceptable Event Marketing Expenses list TV: logo must appear at the conclusion of commercial Hats/t-shirts/jackets/koozie cups: must carry the "The Florida Keys & Key West" logo Radio Advertising: No logo is required. All radio announcements must say "Brought to you by the Monroe County Tourist Development Council" Trophies: Logos are not required on trophies. In-Countv L020 The below logo that includes the "Monroe County Tourist Development Council" designation is to The Floridd Keys &~ey~~tre' ..- be utilized in all approved in-county print newspaper ads, magazine ads, street banners, posters and other approved signage efforts. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council". To seek approval, clarification and/or logo in electronic format (eps or jpg file), contact Sharon Joseph or John Underwood with Tinsley Advertising at 305-856-6060. MONROE COUNTY TOURIST DEVELOPMENT COUNCil Out-or-County L020 The below logo that does NOT include the "Monroe County Tourist Development Council" The designation is to be utilized in all other efforts including any approved out-of-county print newspaper ads, magazine ads, FI d V television commercials, internet advertising (banners, ori d l\.eys buttons, e-mail blasts), direct mail promotions (brochures and K W pamphlets) and any approved promotional items including & ey est ,~ programs, T-shirts, hats, jackets, trophies and koozie cups. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council". To seek . · come dS you dre I I 'f" d/ I . I . f ( · · · approva , can Icatlon an or ogo In e ectronlc ormat eps or jpg file), contact Sharon Joseph or John Underwood at Tinsley Advertising at 305-856-6060. Key West Symphony Cuitural Umbrella Funding FY 2010 Contract 10#: 591 9 In-County Logo The Floridd Keys -.- MONROE COUNTY TOURIST DEVELOPMENT COUNCil Out-of-County Logo The Floridd Keys -.- Key West Symphony Cultural Umbrella Funding FY 2010 Contract 10#: 591 10 EXHIBIT C CULTRUAL UMBRELLA SCHEDULE OF EVENTS FISCAL YEAR 2010 EVENT NAME: Kev West Symphony Orchestra/Kev West Symphony Broadway Bound Productions November, 2009 November, 2009 December, 2009/January, 2010 January, 2010 February, 2010 April, 1010 June, 2010 July, 2010 Master Concerts 1 KWSO Broadway Bound Productions KWSO Broadway Bound Productions Master Concerts II Master Concerts III Master Concerts IV 15 Concerts Sol Fest Finale Concerts EXHIBIT D MONROE COUNTY TOURIST DEVELOPMENT COUNCIL CULTURAL UMBRELLA EVENT BUDGET BUDGET BREAKDOWN Line items listed below must be approved by the appropriate agency of record There will be no amendments to this budget (Exhibit D) after BOCC approval of Agreement EVENT NAME: Key West Symphony/ Key West Symphony Broadway Bound Productions MEDIA PLACEMENT & PRODUCTION COSTS: newspaper, radio, magazines, TV, website/internet advertising only $14,239 PROMOTIONAL SIGNS: posters/banners $ PROMOTIONAL ITEMS: t-shirts, hats, jackets, koozie cups $ DIRECT MAIL PROMOTIONS: brochures/pamphlets/postage & shipping $2,500 PROGRAMS: $ PUBLIC RELATIONS: $ *GENERAL NON-ALLOCATED: $ TOTAL: $ 16,739 *GENERAL NON ALLOCATED MAY NOT EXCEED 15% OF THE ABOVE BUDGET AND CAN ONLY BE UTILIZED FOR ACCEPTABLE TDC ITEMS AeTUAL EXPENDITURES MAY DEVIATE NO MORE THAN 10% FROM THE BUDGETED LINE ITEMS NOTED ABOVE. r 19% Edition MONROE COUNTY, FLORIDA Request For \Vaiver of Insurance Requirements It is requested that the insurance requirements, as specitied in the County's Schedule ofInsurancc Requirements, be \vaived or modi tied on the following contract. Contractor: See Event Attachment - eUL Tl'RAL Name of Entity: J~_e 'I vJ e,~ -t Name of Event:~.( \/ we s i- f SyrhphClfl\./ ere h€SkC:'i lnc / ~ -h, ~.~ (}1 (J he (\ '-I () r( ~,e S' IT 2\. I Contract for: Services Address of Contractor: c/o TDC Att: Maxine Phone: Scope of Work: Advertising and Promotion Reason for Waiver: Providing funds to promote event only. ... Minimal exposure to county Policies Waiver will apply to: Insurance Requirements outlined within attached contract Signature of Contractor: 1 Risk Management: Date: County Administrator Appeal: Approved Not Approved Date: Board of County Commissioners :\ppeal: . \pproved :\ot\pprovcd \reeting Date: ,\dministration IlIStrllction !i470Q.2 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: JUNE 16,2010 Bulk Item: Yes -X- No Staff Contact PersonlPhone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Agreement with Pigeon Key Foundation, Inc. in an amount not to exceed $4,925, DAC III, FY 2010 Capital Resources for the Paint Foremans Building Restoration project. ITEM BACKGROUND: TDC approved same at their meeting of April 27, 2010 PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval TOTAL COST: $4,925 BUDGETED: Yes No COST TO COUNTY: $4,925 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes X No AMOUNT PER MONTH P?~T'\ '7?/Iqwchasing -X- ? ", Year APPROVED BY: County Atty Risk Management X DOCUMENTATION: Included Not Required_ DISPOSITION: AGENDA ITEM # Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Pigeon Key Foundation, Inc. Contract # 686 Effective Date: 0 Expiration Date: 1 Contract Purpose/Description: Approval of an Aqreement with Piqeon Kev Foundation, Inc. in an amount not to exceed $4,925, DAC III, FY 2010 Capital Resources for the Paint Foremans Buildinq Restoration proiect. Contract Manager: Maxine Pacini (Name) 3523 (Ext. ) TDC # 3 (Department/Stop #) for BOCC meeting on 6/16/1 0 Agenda Deadline 6/1 /10 CONTRACT COSTS Total Dollar Value of Contract: $ 4,925 Budgeted? YeslZJ No D Account Codes: Grant: $ County Match: $ Current Year Portion: $ 119-79040-530340- TB09-693-X-530340 ADDITIONAL COSTS Estimated Ongoing Costs: $~yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) - --- CONTRACT REVIEW D Changes Needed Y esD No[~l YesD NoEf /' YesDNo&f YesDNo~ Date Out Risk Management ~ h' O.M.B.lPcrrc asmg County Attorney C. Hall Division Director Comments: OMB Form Revised 2/27/01 Mep #2 Grant Award Agreement THIS AGREEMENT (Agreement) is entered into this day of , 2010 by and between MONROE COUNTY, a political subdivision of the State of Florida (County or Grantor) and Pigeon Key Foundation, Inc. a not for profit business organized and operating under the laws of the state of Florida (Grantee). WHEREAS, the district pennies 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 Pigeon Key Foremans Building Restoration Paint project; and WHEREAS, the Grantor and Tourist Development Council (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 a museum and nature center that is 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 June 16, 2010 through to March 31, 2011. 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: Seqment 1: Repair wood and paint Foremans Building. 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, 2011 and all invoices pertaining to this project shall be submitted to the Finance Department of Monroe County no later than March 31, 2011 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 Kelly McKinnon, PO Box 500130, Marathon, FL 33050. Telephone: (305) 509-0345. E-mail: Should there be a change in the project manager specified in the Grantee's application, a new project Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 manager shall be designated and notice with new contact information shall be provided in writing to the TDC administrative office. 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. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $4,925 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% (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 Board of County Commissioners and the Tourist Development Council assume no liability to fund Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 2 ~ r 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 BOCC. 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) 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 Pigeon Key Foreman '8 Building FY 2010 Funding Contract 10#: 686 3 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, 2011. Invoices received after March 31, 2011 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, 2011. Invoices received after March 31, 2011 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 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 Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 4 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 BOCC. (ii) At any time that the Grantee: (a) elects to stop the project or otherwise decide not to place into service for tourist-related purposes the facility acquired, constructed, or renovated with tourist development tax funding, (b) demolishes the project facility or divests itself of ownership or possession of the real property, or (c) 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 the Tourist Development funding. This provision shall survive the termination date of all other provisions of this contract for a period of ten years. Should the demolition, transfer of ownership, or change to a non- tourist related purpose occur after the facility has been used for tourist-related purposes for at least three (3) years, the amount of refund shall be pro-rated based on a useful life of ten (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 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 Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 5 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 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: Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 6 a) Anti-discrimination. 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 County. 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. 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 Ag reement. 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. Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 7 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. 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 TDC, the County, the State of Florida or authorized agents and representatives of said government bodies. 9. HOLD HARMLESS/lNDEMNIFICA TION. The Grantee hereby agrees to indemnify and hold harmless the BOCCITDC 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 immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. Pigeon Key Foreman '8 Building FY 2010 Funding Contract 10#: 686 8 (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. 1 O. 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 USC 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 TDC 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. Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 9 12. TERMINATION. This Agreement shall terminate on March 31, 2011. 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 Pigeon Key Foreman '5 Building FY 2010 Funding Contract 10#: 686 10 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 employee in violation of Section 3 of Ordinance 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. Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 11 " " For the breach or violation of the provision, the Grantee agrees that the County shall have 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 compensation; 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, Florida Statutes, 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 Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 12 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 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 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. 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 (305) 295-3178 for details (Certificates can be e-mailed directly from the insurance agency to: - 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 (certificate only for worker's compensation coverage). Insurance information should be mailed to: Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 13 Monroe County Board of County Commissioners c/o Risk Management P.O. Box 1026 Key West, FL 33041 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: Kelly McKinnon PO Box 500130 Marathon, FL 33050 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 Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 14 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. 25. ATTESTATIONS. 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 BOCC 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. Pigeon Key Foreman's Building FY 2010 Funding Contract 10#: 686 15 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. (SEAL) Attest: Danny L. Kolhage, Clerk Board of County Commissioners of Monroe County Deputy Clerk Mayor/Chairman (CORPORATE SEAL) Attest: Pigeon Key foundation, Inc. By. By ~-t /7 ~'c G L"CYr-~ 7rt;:;:II"~ ;w1 ( Print Name Date: :1'~/cJ . t. 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V') 000 ..c ..c ro~'-Ooo:!:: .= 0 - - __.-~NO - Q)+--O (]) (]) (]) (]) - -.Q 0) C +--00 (]) o c 0 U u""OuU(])(])(])O)c :;Eo~ O..co~oouuUc:.;:: E - - .- - - 0 0 0 .- c ~ . 0- U 0- :J 0- 0- 0- 0- 0- "ti .- (]) 0 (]) 0"" (]) (]) (]) (]) (]) 'x 0 (/) l:k: 0- l:k: (]) l:k: l:k: ~ ~ ~ (]) 0- I I ~ I I I I I I I BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: JUNE 16,2010 Bulk Item: Yes -X- No Department: Staff Contact Person/Phone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Agreement with Dolphin Research Center, Inc. in an amount not to exceed $140,000, DAC III, FY 2010 Capital Resources for the construction of the Family Spray- Ground Park project. ITEM BACKGROUND: TDC approved same at their meeting of April 27, 2010 PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval TOTAL COST: $140,000 BUDGETED: Yes No COST TO COUNTY: $140,000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes-X- No AMOUNT PER MONTH Year APPROVED BY: County Atty urchasing -X- Risk Management DOCUMENTATION: Included X Not Required_ DISPOSITION: AGENDA ITEM Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Dolphin Research Center, Inc. Contract # 690 - Effective Date: 6/16/1 0 Expiration Date: 3/31/11 Contract Purpose/Description: Approval of an Aqreement with Dolphin Research Center, Inc. in an amount not to exceed $140,000, DAC III, FY 2010 Capital Resources for the construction of the Family Spray-Ground Park proiect. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext. ) (Department/Stop #) for BOCC meeting on 6/16/1 0 Agenda Deadline 6/1 /1 0 CONTRACT COSTS Total Dollar Value of Contract: $ 140,000 Budgeted? YeslZJ No D Account Codes: Grant: $ County Match: $ Current Year Portion: $ 119-79040-530340- TB09-691-X-530340 ADDITIONAL COSTS Estimated Ongoing Costs: $~yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Changes DivisionDirector F)" Ye~D~~~ Date Out l f C. Hall Risk Management YesD Not:( O. . .!Purchasing r County Attorney IbYesD NoQ] YesD NoO-= Comments: OMB Form Revised 2/27/01 Mep #2 Grant Award Agreement THIS AGREEMENT (Agreement) is entered into this day of , 2010 by and between MONROE COUNTY, a political subdivision of the State of Florida (County or Grantor) and Dolphin Research Center, Inc. a not for profit business organized and operating under the laws of the state of Florida (Grantee). WHEREAS, the district pennies 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 Construction of the Dolphin Research Center Family Spray-Ground Park project; and WHEREAS, the Grantor and Tourist Development Council (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 construct the property for use as a zoological park which is 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 June 16, 2010 through to March 31, 2011. 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: Seqment 1: Materials and labor necessary to family spray ground park. 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, 2011 and all invoices pertaining to this project shall be submitted to the Finance Department of Monroe County no later than March 31, 2011 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 Bette Zirklebach, 58901 Overseas Highway, Grassy Key, FL 33050. Telephone: (305) 289-1121 ext. 263. E-mail: Should there be a change in the project manager specified in the Oolphin FamHy Spray-Ground Park FY 2010 Funding Contract 10#: 690 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. 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. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $140,000 for materials and services used to construct 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% (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 Board 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 Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 2 obligation to pay under this Agreement is contingent upon an annual appropriation by the BOCC. 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) 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. Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 3 All payment requests must be submitted no later than the completion of project of March 31,2011. Invoices received after March 31, 2011 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, 2011. Invoices received after March 31, 2011 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 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 Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 4 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 BOCC. (ii) At any time that the Grantee: (a) elects to stop the project or otherwise decide not to place into service for tourist-related purposes the facility acquired, constructed, or renovated with tourist development tax funding, (b) demolishes the project facility or divests itself of ownership or possession of the real property, or (c) 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 the Tourist Development funding. This provision shall survive the termination date of all other provisions of this contract for a period of ten years. Should the demolition, transfer of ownership, or change to a non- tourist related purpose occur after the facility has been used for tourist-related purposes for at least three (3) years, the amount of refund shall be pro-rated based on a useful life of ten (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 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 Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 5 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 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-discrimination. 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 Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 6 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 County. 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. 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. Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 7 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. 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 TDC, the County, the State of Florida or authorized agents and representatives of said government bodies. 9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold harmless the BOCCITDC 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 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 Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 8 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 USC 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 TDC 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. 12. TERMINATION. This Agreement shall terminate on March 31, 2011. 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 Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 9 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 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. Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 10 (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 employee in violation of Section 3 of Ordinance 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 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 Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 11 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 compensation; 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, Florida Statutes, 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 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. Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 12 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 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. 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 (305) 295-3178 for details (Certificates can be e-mailed directly from the insurance agency to: - 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 (certificate only for worker's compensation coverage). Insurance information should be mailed to: Monroe County Board of County Commissioners clo Risk Management P.O. Box 1026 Key West, FL 33041 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: Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 13 For Grantee: Bette Zirklebach Dolphin Research Center 58901 Overseas Highway Grassy Key, FL 33050 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. 25. ATTESTATIONS. 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. Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 14 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 BOCC 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. Oolphin Family Spray-Ground Park FY 2010 Funding Contract 10#: 690 15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. (SEAL) Attest: Danny L. Kolhage, Clerk Board of County Commissioners of Monroe County Deputy Clerk Mayor/Chairman (CORPORATE SEAL) Attest: Dolphin Research Center, Inc. / /"".r..,; / / I By. Secretary !~/ :'~l y./><../ ;; {,/ / . . By y/iL/{.. {v! " t,,/~~~ l h ^." President Date: RrrA JR.-LvfA} Print Name Date: ,C; L~ lo t I Print Name OR TWO WITNESSES (1 ) (2) . (1) Print Name (2) Print Name Date: Date: Dolphin Family Spray-Ground Park FY 2010 Funding Contract JD#: 690 ASSIS Date 16 <( ..... - ~ - :J: X w )..: .... ..., t=0 zo:: W A- LL. LL. 00 W W :e:e << zz ~ a:E -- c:: c:: Q) Q) E E 0))., Q) 0 ",0.. .c ... u.E g c:: _ .0 .::: o 0 Oc:: . U .::: :;::0.. Q)o.. 1i~ E Q) o.c u- ... 0) ~ .c:: o .8 :;: " ::;) Q)- ~ c:: o Q) ==E o Q) ~~ c:: ::;) 0.0 1:.E Q) Q) E ... Q) ... .E ~ . ::;) ).,::: ~-I.Q - ~ I'E 0.._ .. '- g. ~ I-Q)-E U...", w...::;)Q) ,.EE~ 08Q),E 0:::: '- Q) E CL ~ 1: '- .- Q) OEec.:: I-.Q~::;::' U')::;) . c:: I- "'::: Q) z,,:9E w c:: .c )., -.:::::::0><0 ..::::t::Q)o.. (9 o.~ Q) w So.;: .c U') .VI - " i;;.S c:: '-'- ~ .- Oc::"g:5 0::::::;)1:~ w 0 Q) " a::lUEQ) ~.. " ::::> -51 a .a zzou " .S c o :;:: ~ o 0... U o I- <D ::> o > '-+- o <D ::> 1J <D ..c U U') en U (]):..= ......0. o 0 U '- o (]) (])..o 0:::::';:: .-0 -0 c (]) :) ..c 0 Vl '- c 2' o (]) '> -0 o c (]) :) U ...... (])'C 0............ U 0 U o U (]) -o(]) (])-l 0:::: -0 vi c (]) E 0 ......- 'Vi 0 Q) (]) 0. c '-..c:':= o U '- 0....... (]) (])o...... '- ..c 0 o.........~ . -0 o 0. >- ~-o 0.0 Vl 0. ~ 0) :..= c U'C o (]) ,--0 (]) '- ...... 0 .~ ..0 ........:::.t:.(]) o U U o (])'- 4- > (]) -0 '- '- ...... (]) o 0 Vl :) 0 U 0" 4- 'C Vl(])...... '<t'-u oo(]) r--...:)(]) ...... 0" > U Vl > :) I.() (]) ..:::oc Vlr--...- c -0 0 oc...... Uoc . . Vl (]) '- :) ...... o (]) 4- >- o 0. -0 c o ...... c (]) E .Q- :) 0" (]) c o :..= o '- ...... :.;:: o ...... Vl C . :sz f= ...... U :) '- ...... Vl C o U . o (]) '- o :sz :..= .~ Vl '- (]) > o 0. -0 c o >- o ~ o ~ '- (]) > o 0. o ...... Vl C . -0 o 0. >- o '- 0. Vl 0) .~ -0 c :) o '- '- :) Vl Vl -0 c :) o '- 0) (]) 0. o U Vl -0 c o -l . o o o o """ o o c5 o o o <X) C'I Vl (]) :0 ..0 :) U -0 c o Vl (]) ..0 o ...... Vl (]) ..c U c (]) ..0 o ...... Vl C (]) 0) o c 0) 'Vi o ...... Vl C . . BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: JUNE 16,2010 Bulk Item: Yes X No Department: Staff Contact Person/Phone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Amendment to Agreement with 218 Duval Street Corp. for Fight Night in the Keys - III to revise scope of services for District IV. ITEM BACKGROUND: PREVIOUS RELEVANT BOCC ACTION: BOCC approved original Agreement at their meeting of October 21, 2009 BOCC approved amendment at their meeting of February 17, 2010 CONTRACT/AGREEMENT CHANGES: Amendment STAFF RECOMMENDATIONS: Approval TOTAL COST: $15,000 BUDGETED: Yes X No COST TO COUNTY: $15,000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes X AMOUNTPERMONTH_ Year APPROVED BY: County Atty Risk Management DOCUMENTATION: Included X Not Required_ DISPOSITION: AGENDA ITEM Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: 218 Duval Street, Corp. Contract 659 Effective Date: 10/21/09 Expiration Date: 9/30/10 Contract Purpose/Description: Approval of an Amendment to Agreement with 218 Duval Street Corp. for Fight Night in the Keys - In to revise scope of services for District IV. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext. ) (Department/Stop #) for BOCC meeting on 6/16/1 0 Agenda Deadline 6/1/1 0 CONTRACT COSTS Total Dollar Value of Contract: $ 15,000 Budgeted? YeslZJ No D Account Codes: Grant: $ County Match: $ Current Year Portion: $ 15,000 120-70030-530340- T-S-00-624-X-530340 ADDITIONAL COSTS Estimated Ongoing Costs: $----.!yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Changes .~~~In~ Needed Division Director ./'1./ YesD NoEJ Date Out O. . ./Purchasing r County Attorney YesD NoEj- YesD NoGY YesDNoG- C. Hall Risk Management Comments: OMB Form Revised 2/27/01 Mep #2 AMENDMENT (2nd AMENDMENT) TO AGREEMENT THIS AMENDMENT to agreement dated the day of 2010, is entered into by and between the 30ard of County Commissioners for Monroe County, Florida, a political subdivision of the state of Florida ("County"), md 218 Duval Street Corp. ("Event Sponsor"). WHEREAS, there was a contract entered into on October 21, 2009, between the parties, awarding $55,000 District I allocation = $40,000, District IV allocation = $15,000) for the production of Fight Night in the Keys in January 2010; and WHEREAS, the Event Sponsor met the requirements of District I and have been paid the District I allocation )f $40,000; and WHEREAS, it has become necessary to revise the scope of services outlined within the agreement for )istrict IV; NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties agree to the ~mended agreement as follows: l. Paragraph 2 of the agreement shall be revised to read: Scope of Services: The Event Sponsor agrees to )rovide the County with an event as specified in the Scope of Services below (Event): bl. District IV: . A Saturday night boxing match . A minimum of 30 seconds of FOX coverage specifically about Islamorada as a destination. !. The remaining provisions of the contract dated October 21,2009, and amended February 17,2010 remain in ull force and effect. IN WITNESS WHEREOF, the parties have set their hands and seal on the day and year first above written. (SEAL) \ttest: Danny L. Kolhage, Clerk Board of County Commissioners of Monroe County . f . Deputy Clerk Mayor/Chairman CORPORATE SEAL) \.ttest: Secretary By ~ 3y. )rint Name )R TWO WITNESSES (1 1) (2) (2) Print Name Print Name MO~~OE COUNTY ATTORNEY 1fGrRJ~~~D,AS;lTO)70~.~tl '. }j'{l.I.{<,._<1~ tt~ /ICYNTHIA L":"HALL ASSIS"rA~T COUbl:r~tAvTORNEY . \ I v. Date :). ~.' \mendment #2 ~ight Night in the Keys - III .::ontract #: 659 NDMENT 1st AMENDMENT TO AGREEMENT THIS AMENDMENT to agreement dated the J) .L!day of ;eA 2010, is entered into by and between the Board of County Commissioners for Monroe County, Florida, a political subdivision of the state of Florida ("County"), 3nd 218 Duval Street Corp. ("Event Sponsor"). WHEREAS, there was a contract entered into on October 21, 2009, between the parties, awarding $55,000 :District I allocation = $40,000. District IV allocation = $15,000) for the production of Fight Night in the Keys in January 2010; and WHEREAS, it has become necessary to revise the date of the event and the scope of services outlined within :he agreement; NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties agree to the :tmended agreement as follows: t. Paragraph 1 of the agreement shall be revised to read: Payment: The COUNTY agrees to pay $55,000 :Fifty Five Thousand Dollars: District I allocation = $40,000, District IV allocation:: $15,000) for. Fight Night in the <eys - III on March 20, 2010 from tourist development tax funds provided Event Sponsor meets all of its obligations Jnder this agreement. 2. Paragraph 2 of the agreement shall be revised to read: SCODe of Services: The Event Sponsor agrees to Jrovide the County with an event as specified in the Scope of Services below (Event): a). District I: . A Saturday night boxing match · FOX Coverage of boxing match b). District IV: . A Saturday night boxing match · A minimum of 30 seconds of FOX coverage specifically about Islamorada as a destination, and an Islamorada press day ). The remaining provisions of the contract dated October 21, 2009, 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. (SEAl) !\ Board of County Commissioners of Monroe Cou~ _~ ~an ~ MONROE COUNTY ATTORNEY ~.PP YEDfiWO FORM: CYN{~IA . HALL ASS STANT COUNTY ATTORNE' Date / - 7-- )..010 :CORPORATE SEAL) '\ttest: Secretary 218 Duval Street Corp. B~ n Event Sponsor ~\)~ ~~1\.". Print Name 3y. =>rint Name :>R TWO WITNESSES (1 ) 1) (2) (2) Print Name Print Name \mendment # 1 ~ight Night in the Keys - ill ~ "'ontract #: 659 Turn Key Events Agreement THIS AGREEMENT (Agreement) is entered into this day of 2009, by and between MONROE COUNTY, a political subdivision of the state of Florida (County) and 218 Duval Street Corp. a business organized under the laws of the state of Florida (Event Sponsor). WITNESSETH: In consideration of the mutual covenants contained herein the parties agree as follows: 1. Payment: The COUNTY agrees to pay $55,000 (Fifty Five Thousand Dollars: District I allocation = $40,000, District IV allocation = $15,000)) for: Fight Night in the Keys -III in January, 2010 from tourist development tax funds provided Event Sponsor meets all of its obligations under this agreement. 2. Scope of Services: The Event Sponsor agrees to provide the County with an event as specified in the Scope of Services below (Event): a). District I: . A Friday night boxing match · ESPN Coverage of boxing match b). District IV: · A Friday night boxing match · A minimum of 30 seconds of ESPN coverage specifically about Islamorada as a destination and an Islamorada press day 3. Payment: Upon receipt from Event Sponsor of documentation, reviewed and verified by the Tourist Development Council (TDC) Administrative Office, proving that event has been produced and promoted through marketing literature, advertising program/publication ads, television coverage, publicity and on-site advertising, and that the required insurance was obtained no less than twenty days prior to the event, COUNTY shall pay the sum in Paragraph 1. Monroe County's performance and obligation to pay under this contract is contingent upon an annual appropriation by the COUNTY. Fight Nigl1t in the Keys FY 2010 Contract 10#.' 659 1 4. Accountinq: Financial records of Sponsor pertaining to this project shall be kept according to generally recognized accounting principles and shall be available to the COUNTY or to an authorized representative for audit. Records shall be retained a minimum of three years after contract has been performed. 5. Modification: Any changes to this contract may be made only by written mutual agreement, recommended by the TDC and approved by the COUNTY. 6. Termination: This Agreement terminates on September 30,2010. All invoices must be submitted prior to September 30,2010. 7. Non Occurrence of Event: The Event Sponsor shall give written notice to the Monroe County Tourist Development Council if it is found necessary to cancel an event. The notice shall contain the following specifics: 1) reason for cancellation, 2) documentation of the reason for cancellation and 3) person authorized to cancel including title and stated affiliation. 8. Indemnification and Hold Harmless: The Event Sponsor covenants and agrees to indemnify and hold harmless and defend Monroe County, its officers, employees and agents including the Tourist Development Council and Visit Florida Keys from any and all claims for bodily injury (including death), personal injury, and property damage (including property owned by Monroe County) and any other losses, damages, and expenses (including attorney's fees) which arise out of, in connection with, or by reason of the services provided, event sponsored, or other activities and funding associated with this agreement, except those losses or damages caused by COUNTY or its agents. 9. Insurance Requirements: Event Sponsor, as a pre-requisite of the Special Event governed by this agreement, shall obtain, at its own expense, insurance as specified in this section. Event Sponsor will not be permitted to commence work associated with the Event (including pre-staging of personnel and material) until satisfactory evidence of the required insurance has been furnished to the County as specified below. Event Sponsor shall maintain the required insurance through out the entire duration of the Event and any extensions specified in any attached schedules. Failure to comply with this provision shall release County of any obligation to compensate event sponsor. Further, any material misstatement in the application for insurance coverage shall release County from it's obligations to pay under this agreement. Event Sponsor 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 Fight Night in the Keys I"-y 2010 Contract 10#. 659 2 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 COUNTY prior to the Event. The insurance policy must state that the Monroe County is the certificate holder and additional Insured. Insurance should be mailed to: Monroe County Board of County Commissioners C/O Risk Management 1100 Simonton Street Room 1-213 Key West, FL 33040 All insurance policies must specify that they are not subject to cancellation, non- renewal, material change or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. Acceptance and/or approval of Event Sponsor insurance shall not be construed as relieving Event Sponsor from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, its employees and officials shall be included as "Additional Insured" on all policies, exempt workers compensation. Any deviations from these General Insurance Requirements must be requested in writing on the County form titled "Request for Waiver of Insurance Requirements" and must be approved by Monroe County Risk Management. Event Sponsor shall furnish the County with a certificate evidencing the insurance required by this paragraph not later than twenty (20) days prior to the event. Prior to commencement of work governed by this contract, Event Sponsor shall obtain General Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: * Premises Operations * Products and Completed Operations * Blanket contractual Liability * Personal Injury Liability * Expanded Definition of Property Damage The minimum limits acceptable shall be: * $1,000,000.00 combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: * $500,000.00 per Person * $1,000,000.00 per Occurrence Fight Night In the Keys FY 2010 Contract /0#. 659 3 * $100,000.00 Property Damage An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the acceptance of work by the County. Recognizing that the work governed by this contract involves the sales and/or distribution of alcoholic beverages, the Contractor's General Liability Insurance policy shall include Liquor Liability with limits equal to those of the basic coverage. A separate Liquor Liability policy is acceptable if the coverage is not more restrictive that the contractor's General Liability policy. A Workers Compensation insurance is required by Florida Statutes. 10. Permits: The Event Sponsor will secure all required permits, licenses including but not limited to occupational licenses. 11. Laws and Requlations: Any and all services, materials and equipment shall comply fully with all Local, State and Federal laws and regulations. 12. Taxes: The COUNTY and ToC are exempt from Federal Excise and State of Florida Sales Tax. 13. Finance Charqes: The COUNTY and ToC will not be responsible for any finance charges. 14. Relation of COUNTYffoC: It is the intent of the parties hereto that the Event Sponsor shall be legally considered as an independent contractor and that neither it nor its employees shall, under any circumstances, be considered servants or agents of the COUNTY and ToC, and the COUNTY and ToC shall at no time be legally responsible for any negligence on the part of said Event Sponsor, its employees or agents, resulting in either bodily or personal injury or property damage to any individual, firm, or corporation. 15. Disclosure: The Event Sponsor shall be required to list any or all potential conflicts or interest, as defined by Florida Statute 112 and Monroe County Code. The Event Sponsor shall disclose to the COUNTY and ToC all actual or proposed conflicts of interest, financial or otherwise, direct or indirect, involving any client's interest which may conflict with the interest of the COUNTY and ToC. 16. Assiqnment: The Event Sponsor shall not assign, transfer, convey, sublet or otherwise dispose of this agreement, or of any or all of its right, title or interest therein, or his or its power to execute such agreement to any person, company or corporation without prior consent of the ToC and COUNTY. 17. Compliance with laws - Nondiscrimination: The Event Sponsor, shall comply with all federal, state and local laws and ordinances applicable to the work or payment for work Fight Night in the Keys FY 2010 Contract 10#. 659 4 thereof, and shall not discriminate on the grounds of race, color, religion, sex, age, or national origin in the performance of work under this Agreement. This Agreement shall be subject to all federal, state, and local laws and ordinances. 18. Security Protection: The Event Sponsor agrees to provide adequate security for the event. 19. Ethics Clause: The Event Sponsor warrants that it has not employed, retained or other wise had act on its behalf, any former County office 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. 20. Media riqhts: The TDC shall have the right to broadcast, rebroadcast, use, reproduce or transmit for any purpose whatsoever, radio, television, pictures, sound, film and tape motion pictures and still photographs paid for by the COUNTY and TDC under this agreement. 21. Lo~o: All promotional literature and display advertising with the exception of generic advertising must display the "Florida Keys & Key West Come As You Are" logo/trade mark (as per attached logo sample). This logo/trade mark was adopted by the TDC and County in December 2006. In-County Loqo: The logo that includes the "Monroe County Tourist Development Council" designation is to be utilized in all approved in-county print newspaper ads, magazine ads, street banners, posters and other approved signage efforts. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council". To seek approval, clarification and/or logo in electronic format (eps or jpg file), contact John Underwood with Tinsley Advertising at 305-856-6060. Out of County Loqo: The out of county logo does NOT include the "Monroe County Tourist Development Council" designation and is to be utilized in all other efforts including any approved out-of-county print newspaper ads, magazine ads, television commercials, internet advertising (banners, buttons, e-mail blasts), direct mail promotions (brochures and pamphlets) and any approved promotional items including programs, T-shirts, hats, jackets, trophies and koozie cups. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council". To seek approval, clarification and/or logo in electronic format (eps orjpg file), contact Emerson Fales or John Underwood at Tinsley Advertising at 305-856- 6060. Fight Night in the Keys FY 2010 Contract 10#. 659 5 22. Severability: If any provision of this Agreement shall be held by a Court of competent jurisdiction to be invalid or unenforceable, all remaining provisions shall not be affected thereby; and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 23. Authority: Each of the signatories for the sponsor below certifies and warrants that: a) The Sponsor's name in the agreement is the full name as designated in its corporate charter, and b) they are empowered to act and execute the agreement for the Sponsor and c) this Agreement has been approved by the Sponsor's Board of Directors. 24. Public Entity Crimes: "A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a proposal on a contract to provide any goods or services to a public entity, may not submit a proposal on a contract with a public entity for the construction or repair of a public building or public work, may not submit proposals on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract 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 T\NO for a period of 36 months from the date of being placed on the convicted vendor list". By execution of this Agreement, Sponsor warrants that it is in compliance with this requirement. 25. Governinq LawNenue: 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. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of the agreement, the County and Sponsor agree that venue shall lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. This Agreement shall not be subject to arbitration. 26. 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: David E. Johnson 218 Duval Street Key West, Florida 33040 Fight Night in the Keys FY 2010 Contract 10#. 659 6 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 27. Entire Aoreement: The parties agree that the Agreement above constitutes the entire agreement between the COU NTY and Event Sponsor IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. (SEAL) Attest: Danny L. Kolhage, Clerk Board of County Commissioners of Monroe County /-? 0 tl ( 1Jtvv~ff...~).Jt:tALL v' ~/4~" DepUty Clerk . ~ J!,. n~#5 .. Mayor/Chairman (CORPORATE SEAL) Attest: 218 Duval Street Corp. Secretary By ;/ J~ Prriident S-,' S 1e-L;.,j Print Name Date: ?r? By. Print Name Date: OR TWO WITNESSES (1 (2) Print Name: Print Name: Date: Fight Night in the Keys FY 2010 Contract ID#: 659 Date: 7 MONROE COUNTY ATTORNEY APPROVED AS IO ,FORM' :m i.,; ,,\ l~'J 'm,) " l 1 ,r"( . n;YNTHIA L HALL _ _.__. ...... ""t"\IIII.ITV ~TTnRNEY In-County lOQO The Floridd Keys ... MONROE COUNTY TOURIST DEVELOPMENT COUNCIL Out-or-County lOQO The Floridd Keys ... Fight Night in the Keys FY 2010 Contract 10#. 659 8 BOARD OF COUNTY COMMISSIONERS AGENDAITEMSU~ARY Meeting Date: JUNE 16, 2010 Division: TDC Bulk Item: Yes -X- No Department: Staff Contact PersonlPhone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Agreement with Old Island Restoration Foundation, Inc. covering the Oldest House Museum & Garden ADA Access Ramp and Upgrade project in an amount not to exceed $15,810, DAC I, FY 2010 Capital Resources. ITEM BACKGROUND: TDC approved same at their meeting of April 27, 2010 PREVIOUS RELEVANT BOCC ACTION: CONTRACT! AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval TOT AL COST: $15.810 COST TO COUNTY: $15.810 BUDGETED: Yes No SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes-X- AMOUNTPERMONTH_ Year APPROVED BY: County Atty-X- Risk Management X DOCUMENT ATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Old Island Restoration Contract 688 Foundation, Inc. Effective Date: 6/16/1 0 Expiration Date: 11/30/1 0 Contract Purpose/Description: Approval of an Aqreement with Old Island Restoration Foundation, Inc. coverinq the Oldest House Museum & Garden ADA Access Ramp and Upqrade project in an amount not to exceed $15,810, DAC I, FY 2010 Capital Resources. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext. ) (Department/Stop #) for BOCC meeting on 6/16/1 0 Agenda Deadline 6/1/10 CONTRACT COSTS Total Dollar Value of Contract: $ 15,810 Current Year Portion: $ Budgeted? YesC8J No D Account Codes: 117-77040-530340-TB07-690-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 Division Director Changes Needed~ YesDNo~ Date Out County Attorney YesD YesD YeSDNO~ C. Hall Risk Management ~ j ~ ~\(\V~ OJ.;:r.B.lPurchaslng Comments: OMB Form Revised 2/27/01 Mep #2 Grant Award Agreement THIS AGREEMENT (Agreement) is entered into this day of , 2010 by and between MONROE COUNTY, a political subdivision of the State of Florida (County or Grantor) and Old Island Restoration Foundation, Inc. a not for profit business organized and operating under the laws of the state of Florida (Grantee). WHEREAS, the district pennies 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 Oldest House Museum & Garden ADA Access Ramp and Upgrades project; and WHEREAS, the Grantor and Tourist Development Council (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 improve the property for use as a museum which is 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 June 16, 2010 through to December 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: Materials and labor and permits necessary for the construction and installation of a ramp; rear door to museum and bathroom renovation. 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 December 31, 2010 and all invoices pertaining to this project shall be submitted to the Finance Department of Monroe County no later than December 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 William Beck, PO Box 689, Key West, FL 33041. Telephone: 305-923-4088. E-mail: oldisland@comcast.net. Should there be a change in the project manager specified in the Grantee's application, a new project Oldest House Museum FY 2010 Funding Contract 10#: 688 manager shall be designated and notice with new contact information shall be provided in writing to the TDC administrative office. 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. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $15,810 for materials and services used to improve 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% (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 Board 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 Oldest House Museum FY 2010 Funding Contract ID#: 688 2 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) 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. Oldest House Museum FY 2010 Funding Contract 10#: 688 3 All payment requests must be submitted no later than the completion of project of December 31, 2010. Invoices received after December 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 December 31,2010. Invoices received after December 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 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 Oldest House Museum FY 2010 Funding Contract 10#: 688 4 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) At any time that the Grantee: (a) elects to stop the project or otherwise decide not to place into service for tourist-related purposes the facility acquired, constructed, or renovated with tourist development tax funding, (b) demolishes the project facility or divests itself of ownership or possession of the real property, or (c) 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 the Tourist Development funding. This provision shall survive the termination date of all other provisions of this contract for a period of ten years. Should the demolition, transfer of ownership, or change to a non- tourist related purpose occur after the facility has been used for tourist-related purposes for at least three (3) years, the amount of refund shall be pro-rated based on a useful life of ten (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 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 Soard 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 Oldest House Museum FY 2010 Funding Contract 10#: 688 5 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 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-discrimination. Contractor agrees that it will not discriminate against any employees or applicants for employment or against persons for any other benefit or Oldest House Museum FY 2010 Funding Contract 10#: 688 6 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 County. 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. 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. Oldest House Museum FY 2010 Funding Contract ID#: 688 7 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. 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 TDC, the County, the State of Florida or authorized agents and representatives of said government bodies. 9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold harmless the BOCCrrDC 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 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 Oldest House Museum FY 2010 Funding Contract 10#: 688 8 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 USC 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 TDC 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. 12. TERMINATION. This Agreement shall terminate on December 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 Oldest House Museum FY 2010 Funding Contract ID#: 688 9 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 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. Oldest House Museum FY 2010 Funding Contract ID#: 688 10 (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 employee in violation of Section 3 of Ordinance 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 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 Oldest House Museum FY 2010 Funding Contract 10#: 688 11 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 compensation; 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, Florida Statutes, 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 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. Oldest House Museum FY 2010 Funding Contract ID#: 688 12 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 (305) 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 TDC 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 TDC is the Certificate Holder and additional Insured for this contract (certificate only for worker's compensation coverage). Insurance information should be mailed to: Monroe County Board of County Commissioners c/o Risk Management P.O. Box 1026 Key West, FL 33041 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: Oldest House Museum FY 2010 Funding Contract 10#: 688 13 For Grantee: William Beck PO Box 689 Key West, FL 33041 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. 25. ATTESTATIONS. 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. Oldest House Museum FY 2010 Funding Contract 10#: 688 14 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 BaCC 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. Oldest House Museum FY 2010 Funding Contract 10#: 688 15 WHEREOF I the parties hereto have caused this Agreement to be exe ytar flNt above written. r ;.;t [; Board of County Commissioners at Monroe County Deputy Clerk Mayor/Chairman (CORPORATE SEAL) Attest Old rsrand Restoration Foundation, Inc. By. ~. Secretary By Ck~LY;;;;- Pr..rdent Print Name A(\\-~'oj\j\l S. f1INOCC Print Name i- II (1, J[J/O Date: .J:J 0... 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ITEM BACKGROUND: PREVIOUS RELEVANT BOCC ACTION: BOCC approved original agreement at their meeting of October 19, 2005 CONTRACT/AGREEMENT CHANGES: Amendment STAFF RECOMMENDATIONS: Approval TOTAL COST: $380.000 per year BUDGETED: Yes --K- No COST TO COUNTY: $380.000 per year SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes -1L No AMOUNT PER MONTH Year , - Risk Management X APPROVED BY: County Atty DOCUMENT ATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: City of Key West Contract Effective Date: Expiration Date: 134 10/1/10 5 Contract Purpose/Description: Approval of an amendment to Inter-local agreement with the City of Key West to exercise option to extend Smathers and Rest beach maintenance services to September 30,2015. Contract Manager: Maxine Pacini (Name) 3523 (Ext. ) TDC # 3 (Department/Stop #) for BOCC meeting on Agenda Deadline CONTRACT COSTS Total Dollar Value of Contract: $ 380,000 Budgeted? YeslZJ No 0 Account Codes: Grant: $ County Match: $ Current Year Portion: $ 117-77040-530460-T-K-07-422-X-530460 ADDITIONAL COSTS Estimated Ongoing Costs: $--.Jyr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Division Director Changes Needed YesDNo~ YesDNo~ / YesDNo~ YesDNoif Date Out County Attorney C. Hall Ri~ Manage~ent O.tfB./Pur~aSing Comments: o MB Form Revised 2/27/01 Me? #2 AMENDMENT {1st AMENDMENT} TO INTER-LOCAL AGREEMENT THIS AMENDMENT to agreement dated the day of 2010, is entered into by and between the Board of County Commissioners for Monroe County, Oft behalf of the T wrist Development Council, and The City of Key West, a municipal corporation; WHEREAS, there was an agreement entered into on October 19, 2005 between the parties, awarding $380,000 to the City of Key West for the Smathers and Rest Beach Maintenance Services; and WHEREAS, the agreement has an option to extend for a five year period; and NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties agree to the amended agreement as follows: 1. The agreement period as outlined in Paragraph 1 is extended to September 30,2015. 2. The reference to the Project Manager as Roland Flowers, City Engineer, along with his contact information, contained in the second sentence of paragraph 2(a) is deleted and replaced with Greg Veliz, Director of Community Services, telephone: (305) 809~3767; email: gveliz@keywestcity.com. 3. The reference to section 286.28, Florida Statutes, contained in the first sentence of paragraph 9(a) is deleted and replaced with section 768.28, Florida Statutes. 4. The language contained in paragraph 10 is deleted in its entirety and replaced with the following: NON-DISCRIMINATION. The parties agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of f 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. The parties 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 VII of the Civil Rights Act of 1964 (PL 88-352), which prohibit discrimination in .employment on the basis of race, color, religion, sex, and national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ~~ 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 ~ 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ~~ 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, ~~ 523 and 527 (42 USC ~~ 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 ~~ 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC ~~ 1201), as amended from time to time, Amendment #1 City of Key West: Smathers and Rest Beach Maintenance Services ID# 134 relating to nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter 13, Article VI, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial sta1us or age; and 11) any other nondiscrimination provisions in any federa1 or state statutes which may apply to the parties to, or the subject matter of, this Agreement. 5. The contact information for written notice to the Grantee as Roland Flowers, City Engineer, along with his contact information, in paragraph 21 is deleted and replaced with Greg Veliz, Director of Community Services, P.O. Box 1409, Key West, FL, 33041. 6. The remaining provisions of the agreement dated October 19, 2005, 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. (SEAL) Attest: Danny L. Kolhage, Clerk Board of County Commissioners of Monroe County Deputy Clerk Mayor/Chairman The City of Key West ( . Print Name Cf'a~ Print Nam' es MONF3..0E COUNTY ATTORNEY ~l'jR~YJGr1-: ,YNTHIA L. ALL ASSIST NT COUNTY ATTORNEY Date -to>' rt-fl-- U>IO Amendment # 1 City of Key West: Smathers and Rest Beach Maintenance Services ID# 134 Inter-local Aareement With The City of Kev West This AGREEMENT dated the )'j~day of 2005, is entered into by and between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, hereinafter "County" or "GRANTOR," on behalf of the TOURIST DEVELOPMENT COUNCIL, hereinafter "TDC" and the City of Key West, hereinafter "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 publidy owned and operated or owned and operated by not-for-profit corporations, and WHEREAS, Grantee owns and contracts to a not-for-profit corporation for the operation of a beach facility which is open to the public; and WHEREAS, Grantee has applied for funding for Smathers and Rest Beach Maintenance Services; 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 maintain the property for use as a beach which is 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 October 1, 2005 through to September 30 2010 with one option to extend for a five year period. 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 Grantee shall provide deaning and maintenance services for Smathers Beach from waters edge (the mean water line) to the edge of the bike/pedestrian walk (approximately 3,000 feet beach frontage) and up to the end of the wall on the eastern most portion, seven days a week; and for C.B Harvey/Rest Beach (approximately 800 feet beach frontage), seven days a week, induding but not limited to: trash and debris removal, sweeping of walkovers, management of environmental hazards, erosion control and beach repair, coordination of all activities with the Florida Department of Environmental Protection, and notices to appropriate state agencies regarding any sea turtle nesting activity. Grantee shall provide for seaweed dean up from below the high water mark and around the groins for both beaches and disposal of the seaweed. The Grantee may fulfill this obligation through use of its own employees and/or by contracting with an independent contractor. a) There shall be a project manager to acknowledge receipt of goods or work performed. This Project Manager shall be Roland Flowers, City Engineer, 604 Simonton Street, Key West, Fl33040 (Telephone: 305-809-3965/Fax: 305-809-3978/e- mail: rflowers@kevwestcitv.com). Should there be a change in the project manager, a new project manager shall be designated and notice of the designation shall be provided to TDC/County. 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. Grantee is a governmental entity which 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. 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. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide the amount of $380,000 per year to pay for cleaning and maintenance as outlined in the scope of services for Smathers and Rest Beach. Payment shall be made in twelve (12) equal installments on a monthly basis, in arrears. Payment will be made directly to the Grantee. The Grantee shall, commencing November 1, 2005, provide a monthly invoice on the 1st day of each month to the Grantor's administrative office for the Tourist Development Council, with documentation showing the work which was performed during the preceding month, and payment shall be made in accordance with the Florida Prompt Payment Act. Grantee shall submit original copy of paid invoice, copy of cleared check paying for services, and a signed letter stating that the contractor has complied with the scope of services as outlined in paragraph 2. of this Agreement. Documentation shall include a notarized statement signed by the project manager as to the completion of the services for which Grantee is invoicing the County. Payment for each fiscal year outlined in paragraph 1 of this agreement, ending September 30, 2010, shall not exceed $380,000, and no payment shall be made for any documentation and invoice received after the close of the fiscal year of September 30, 2010. If option to extend agreement is exercised by Grantee 2 City of Key West: Smathers and Rest Beach Maintenance and Cleaning and Grantor for one additional five year period, compensation for the additional term may be negotiated prior to approval of extension. Should this agreement be terminated pursuant to Section 13, The Grantor will not be obligated to pay for any services provided by the Grantee after the effective termination date for which Grantee has received written notice. 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. Monroe County's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the BOCC. 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 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 3 City of Key West: Smathers and Rest Beach Maintenance and Cleaning 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 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-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. 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 4 City of Key West: Smathers and Rest Beach Maintenance and Oeaning 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 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. 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/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold harmless the COUNTYITOC 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 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. 5 City of Key West: Smathers and Rest Beach Maintenance and Cleaning (a) Non-Waiver of Immunity. Notwithstanding he provisions of Sec. 286.28, 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 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. 1 o. 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 and 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 use 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 USC 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 TDC 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, 6 City of Key West: Smathers and Rest Beach Maintenance and Cleaning 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, 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 by 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. (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 will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. (b) Mediation. The County and Grantee agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. (c) 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 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 7 City of Key West: Smathers and Rest Beach Maintenance and Cleaning 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. (d) 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. 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. (e) 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 no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. 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. (f) 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 employee in violation of Section 3 of Ordinance 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 the right to terminate this Agreement without liability and, at its discretion, to offset 8 City of Key West: Smathers and Rest Beach Maintenance and Cleaning 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 compensation; 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. 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 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. 9 City of Key West: Smathers and Rest Beach Maintenance and Cleaning 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 Grantee, the Grantor 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. 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 AgenVCompany to County Risk Management (Telephone Maria Slavik at 295-3178 for details) 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.O. Box 1026 Key West, FL 33041 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 Grantee: Mr. R. Flowers City Engineer 604 Simonton Street Key West, FL 33040 For Grantor: Lynda Stuart Monroe County Tourist Development Council 1201 White Street, Suite 102 Key West, FL 33040 10 City of Key West: Smathers and Rest Beach Maintenance and Cleaning and Suzanne Hutton, 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. 25. ATTESTATIONS. 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 11 City of Key West: Smathers and Rest Beach Maintenance and Cleaning 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 BOCC 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. (SEAL), ATTESt DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA .', . .. . ... . ~. ~y~~iE:lC. !Q;:;;j~ Deputy Clerk By ~1ff in ~ Mayor Chairman (SEAL) ATTES~ ~ By: Clerk OF KEY WEST / 12 City of Key West: Smathers and Rest Beach Maintenance and Cleaning BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: JUNE 16, 2010 Division: TDC Bulk Item: Yes X No Department: Staff Contact Person/Phone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Agreement with Key West Botanical Garden Society, Inc. covering the Renovation of Nature Chapel and Chapel Area in an amount not to exceed $98,000 DAC I, FY 2010 Capital Resources. ITEM BACKGROUND: TDC approved same at their meeting of April 27, 2010 PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: ST AFF RECOMMENDATIONS: Approval TOT AL COST: $98,000 BUDGETED: Yes -X- No COST TO COUNTY: $98,000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes.lL No AMOUNTPERMONTH_ Year Risk Management X APPROVED BY: County Atty -X- DOCUMENTATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Key West Botanical Garden Contract 687 Society, Inc. Effective Date: 6/16/1 0 Expiration Date: ~/3U/l1 Contract Purpose/Description: Approval of an Aqreement with Key West Botanical Garden Society, Inc. coverinq the Renovation of Nature Chapel and Chapel Area in an amount not to exceed $98,000 DAC I. FY 2010 Capital Resources. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext. ) (Department/Stop #) for BOCC meeting on 6/16/1 0 Agenda Deadline 6/1/10 CONTRACT COSTS Total Dollar Value of Contract: $ 98,000 Budgeted? Yestz:;J No D Account Codes: Grant: $ County Match: $ Current Year Portion: $ 117-77040-530340- TB07-689-X-530340 - ----- ADDITIONAL COSTS Estimated Ongoing Costs: $~yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Division Director Changes Needed YesD Nor:] YesDNo~ Date Out Risk Manag~ent ;J F{) ~ '-:10\ o M.B.lPurchasing I YesD NoS] YeSDNO~ C. Hall County Attorney Comments: OMB Form Revised 2/27/01 Mep #2 Grant Award A~:areement THIS AGREEMENT (Agreement) is entered into this day of , 2010 by and between MONROE COUNTY, a political subdivision of the State of Florida (County or Grantor) and Key West Botanical Garden Society, Inc. a not for profit business organized and operating under the laws of the state of Florida (Grantee). WHEREAS, the district pennies 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 Renovation of Nature Chapel and Chapel Area project; and WHEREAS, the Grantor and Tourist Development Council (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 improve the property for use as a nature center that is 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 June 16, 2010 through to September 30, 2011. 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: Materials and Labor necessary to complete chapel renovations; tiki hut; ADA bathroom facility; outdoor kitchen and a sign on US1. 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 September 30, 2011 and all invoices pertaining to this project shall be submitted to the Finance Department of Monroe County no later than September 30, 2011 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 Carolann Sharkey, 5210 College Road, Key West, FL 33040. Telephone: (305) 304-3666. E-mail: KWBGS@bellsouth.net. 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. Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 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. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $98,000 for materials and services used to improve 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% (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 Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 2 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) 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 September 30, 2011. Invoices received after September 30, 2011 will not be considered for payment. Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 3 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 September 30, 2011. Invoices received after September 30, 2011 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 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 Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 4 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 BOCC. (ii) At any time that the Grantee: (a) elects to stop the project or otherwise decide not to place into service for tourist-related purposes the facility acquired, constructed, or renovated with tourist development tax funding, (b) demolishes the project facility or divests itself of ownership or possession of the real property, or (c) 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 the Tourist Development funding. This provision shall survive the termination date of all other provisions of this contract for a period of ten YE~ars. Should the demolition, transfer of ownership, or change to a non- tourist related purpose occur after the facility has been used for tourist-related purposes for at least three (3) years, the amount of refund shall be pro-rated based on a useful life of ten (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 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. Botanical Garden Society Nature Chapel Project FY 2010 Funding Contract 10#: 687 5 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 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-discrimination. 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 County. 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. Contractor acknowledges that it is aware that funding for this Agreement is available at least in part through the County and Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 6 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. Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 7 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 TDC, the County, the State of Florida or authorized agents and representatives of said government bodies. 9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold harmless the BOCC/TDC 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 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, Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 8 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 USC 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 TDC 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. 12. TERMINATION. This Agreement shall terminate on September 30, 2011. 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. Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 9 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 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. Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 10 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 employee in violation of Section 3 of Ordinance 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 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 compensation; 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, Florida Statutes, 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 Botanical Garden Society Nature Chapel Project FY 2010 Funding Contract 10#: 687 11 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 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 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. 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 (305) 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) Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 12 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 BOCe prior to the contract being executed by the Clerks office. The Insurance policy must state that the Monroe County BOCe and Monroe County TOC is the Certificate Holder and additional Insured for this contract (certificate only for worker's compensation coverage). Insurance information should be mailed to: Monroe County Board of County Commissioners c/o Risk Management P.O. Box 1026 Key West, FL 33041 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: Carolann Sharkey Key West Botanical Garden Society 5210 College Road 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 Botanical Garden Society Nature Chapel Project FY 2010 Funding Contract 10#: 687 13 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. 25. ATTESTATIONS. 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 BOCe 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 Botanical Garden Society - Nature Chapel Project FY 2010 Funding Contract 10#: 687 14 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. (SEAL) Attest: Danny L. Kolhage, Clerk Board of County Commissioners of Monroe County Deputy Clerk Mayor/Chairman (CORPORATE SEAL) Attest: ~' ,,)} ...~ I, / , ~ !.. 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