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05/18/2011 AgreementDANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: May 19, 2011 TO: Lynda Stuart, Office Manager (via e-mail) Tourist Development Council ATTN: Maxine Pacini Administrative Assistant FROM: Pamela G. Hanc ck, . C. At the May 18, 2011, Board of County Commissioners meeting, the Board granted approval and authorized execution of the following: Item Dl Agreement with Dolphin Research Center, Inc. for the Gift Shop Doors project, in an amount not to exceed $3,725 DAC III FY 2011 Capital Resources. Item D2 Agreement with The Marathon Community Theatre, Inc. covering the kitchen and bathroom renovation project in an amount not to exceed $8,000 DAC III FY 2011 Capital Resources. Item D3 Agreement with Key West Film Society, Inc. for the Tropic Cinema Phase Six: Renovations and Upgrades project in an amount not to exceed $35,000 DAC I FY 2011 Capital Resources. Item D4 Agreement with Marine Mammal Conservancy, Inc. to extend agreement for the Marine Mammal Conservancy Phase II Project in an amount not to exceed $28,180. Item D5 Agreement with Key West Players, Inc. covering the Air Conditioning Modernization project in an amount not to exceed $24,950 DAC I FY 2011 Capital Resources. Item D6 Agreement with the Studios of Key West, Inc. for the Nature Center project in an amount not to exceed $60,000 DAC I, FY 2011 Capital Resources. Item D7 Agreement with The City of Marathon for the Installation of a Kayak Dock and Boardwalk in an amount not to exceed $20,000 DAC III, FY 2011 Capital Resources. Item D8 Agreement with The City of Marathon for the Volley Ball project on Sombrero Beach in an amount not to exceed $19,750 DAC III, FY 2011 Capital Resources. Item D9 Agreement with The Key West Harry S Truman Foundation, Inc. covering the Energy Conservation at The Little White House project in an amount not to exceed $5,250 DAC I, FY 2011 Capital Resources. Item D 10 Agreement with Mitchell Wolfson Family Foundation, Inc. covering the Interpreting History — Audubon House Outbuildings project in an amount not to exceed $61,780, DAC 1, FY 2011 Capital Resources. Item D 11 Agreement with The Studios of Key West, Inc. covering the Replacement of Central Air conditioning project at the Historic Armory in an amount not to exceed $25,000, DAC I, FY 2011 Capital Resources. Item D12 Agreement with Florida Keys Land & Sea Trust, Inc. covering the Crane Point Eco- Adventure Canopy Tour Program in an amount not to exceed $85,000, DAC III, FY 2011 Capital Resources. Item D 13 Agreement with Dolphin Research Center, Inc. to purchase land for the purpose of additional parking for the Dolphin Research Center in an amount not to exceed $152,250, DAC III, FY 2011 Capital Resources. Item D15 Amendment to Agreement with Florida Keys Community College and the Letters FKCC covering the FKCC Keys Chorale Concert Series to revise Exhibit C — Schedule of Events. Attached is the electronic copy of the above - mentioned for your handling. Should you have any questions, please feel free to contact me. cc: County Attorney Finance via e -mail File Grant Award Agreement A1 4v THIS AGREEMENT (Agreement) is entered into this day of 2011 by and between MONROE COUNTY, a political subdivision of the State of Flori a (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 acquisition of land to provide for additional parking as part of the existing zoological park, which will be open to the public (the "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, and to attract tourists; 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 May 18, 2011 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: a). Acquire /Purchase property ( "Property ") as described below: Section - Township- Range: 30 -65 -34 Property Location: 58949 Overseas Hwy Marathon Subdivision: Sans Souci Subd Legal Description: SANS SOUCI SUB P132 -160 GRASSY KEY PT SW 100' TR 14 OR822 -1092 OR1006- 279/280 OR1154- 2233/36/TR OR1606- 971/75AFF OR1606- 979/80QC b). A restrictive covenant, enforceable by the County, shall be filed in the Official Records of Monroe County, Florida within three (3) days following the receipt Dolphin Research Center— Land Purchase FY 2011 Funding — 2" round Contract ID #. 858 of funds under this Agreement, for the purpose of ensuring that tourist development dollars are expended for a project permissible under State Statute and County Code. The restrictive covenant shall provide that in the event the property to be acquired under this Agreement is ever sold or is diverted to any use other than a parking area, the monies paid under this agreement from the tourist development revenue shall be repaid to the County within thirty (30) days after sale of the Property or change of use. Failure of the Grantee to allocate sufficient funds to close on the purchase of the property on or before September 30, 2011 shall constitute a breach of this agreement for which the agreement shall terminate immediately at 12:01 a.m., October 1, 2011, without any notice other than this agreement, and County's obligation to pay shall terminate at that time. c). The property to be purchased shall be as described below: Section - Township- Range: 30 -65 -34 Property Location: 58949 Overseas Hwy Marathon Subdivision: Sans Souci Subd Legal Description: SANS SOUCI SUB PB2 -160 GRASSY KEY PT SW 100' TR 14 OR822 -1092 OR1006- 279/280 OR1154- 2233/36/TR OR1606- 971/75AFF OR1606- 979/80QC Acknowledgement Grantee shall be required to permanently display and maintain at Grantee's expense, public acknowledgement of the support of the Monroe County Tourist Development Council in a publicly prominent area of their facility in the following form: "This project was made possible with the financial support of the Monroe County Tourist Development Council." If the Grantee has already complied with this requirement through previous funding, said acknowledgement fulfills this condition. A photograph of said acknowledgment shall be provided with the final request for reimbursement. a) There shall be a project manager to acknowledge receipt of goods or work performed. This Project Manager shall be Bette Zirklebach, 58901 Overseas Hwy, Grassy Key, FL 33050 (Telephone: 305 - 289 -1121 ext. 263/e -mail: bette _dolphins.org 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. 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. Dolphin Research Center — Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 2 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 required to establish that the transaction in question has occurred. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $152,250 (or 50% of 87% of the final purchase price) for the acquisition of the property described in the scope of services in paragraph 2 of this agreement. 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. a) Payment shall be made upon the completion of the acquisition of the Property in question. In order to obtain reimbursement, the Grantee must submit proof to the County that it has obtained marketable title free and clear of any encumbrances, mortgages, or liens of any kind with the exception of easements for rights -of -way or utilities, including but not limited to gas, electric, telephone, internet and cable. In addition, in order to be eligible prior to reimbursement, the Grantee must certificate evidence of an owner's title insurance policy held by the Grantee, showing fee simple title to be vested in the Grantee free and clear of any encumbrances, mortgages, or liens of any kind. b) By entering into this Agreement, the Grantee warrants that (a) it has used due diligence in order to ensure that the title acquired by the Grantee is free and clear of any encumbrances, mortgages or liens of any kind, and (b) title to the Property is in the name of the Grantee and is in fact free and clear of any encumbrances, mortgages, or liens of any kind. In the event of breach, the County shall give notice to the Grantee of the breach in accordance with the conditions set forth in paragraph 13, below. Thereafter, the Grantee shall have a period of twenty -one (21) days within which to cure the breach. If the breach is not cured within that time period, then the Grantee understands and agrees to repay the entire amount of funds granted to the Grantee under this Agreement within thirty (30) days following the expiration of the period within which to cure the breach referenced in the previous sentence. 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. b) Documentation shall be submitted to the TDC Administrative Office to show the purchase of the Property. Dolphin Research Center — Land Purchase FY 2011 Funding — 2" round Contract lD #: 858 3 All requests for reimbursement shall be verified by the notarized signature of an officer or director of the Grantee. 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, 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. 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; (c) ceases ownership or possession of the real property, whether voluntarily or involuntarily; 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 granted under this Agreement. 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 Property 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. Should the demolition, transfer of ownership, or change to a non - tourist related purpose occur after the Property has been used for tourist - related purposes for less than three (3) years, Dolphin Research Center— Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 4 then the amount of the refund shall be one hundred per cent (100 %) of the funds granted under this Agreement. (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. 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. Dolphin Research Center— Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 (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 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 Dolphin Research Center— Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 D 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) 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. e) 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 the 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 Dolphin Research Center — Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 7 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 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 Dolphin Research Center— Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 E3 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. (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 Dolphin Research Center — Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 M 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 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 Dolphin Research Center— Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 10 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. 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: Bette Zirklebach 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 21. 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. Dolphin Research Center— Land Purchase FY 2011 Funding — 2nd round Contract ID #: 858 11 22. 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. 23. 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. 24. 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. 25. 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. 26. 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 Dolphin Research Center — Land Purchase FY 2011 Funding — 2" round Contract ID #: 858 12 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. 27. 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. 28. 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. '[N.:WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed thOOay and year first above written. Board of County Commissioners tte$t' Dann I,. Kolhage, Clerk of Monroe County r: Deputy Clerk May /Ch it an (CORPORATE SEAL) Attest: By. Secretary Print Name Date: OR TWO WITNESSES (1) (1) Print Name Date: Dolphin Research Center — Land Purchase FY 2011 Funding — 2" round Contract IDA 858 Dolphin Research Center, Inc. By 7i1 President ITA JRw /N Print Name Date: (2) (2) Print Name Date: - r, -J c c •• o N CD MO OE COUNTY ATTORNEY A RO DA T F t' j 13 YNT IA L. HALL ASSIS NT COUNTY ATTORNEY Date_ 3- 91 9' 20 it