Item C07
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 15. 2002
Division:
Public Works
Bulk Item: Yes X
No
Department:
Facilities Maintenance
AGENDA ITEM WORDING: Approval to give 14 days notice of termination of the Agreement with
the Key West Botanical Garden Society, concerning temporary office space at the Public Service
Building, for non-payment of utility and maintenance costs, and authority to disconnect electric service
at the end ofthe 14-day period.
ITEM BACKGROUND: The Key West Botanical Garden Society currently leases space at the Public
Service Building for an amount of $100,00 per month for utility consumption and upkeep costs. The
KWBGC has not paid the $100.00 per month charge since August 2001. In accordance with a County
Attorney opinion, and paragraph 23 (a) of the original lease agreement dated August 11, 1999, either party
may provide notice of tennination upon breach of contract by providing 14 days prior written notice.
PREVIOUS RELEVANT BOCC ACTION: On August 11, 1999, the BOCC approve a lease agreement
with the Botanical Garden Society in the amount of $100,00 per month for utilities consumption. On
February 16, 2000, the BOCC rejected the Botanical Garden Society's request to provide $100,00 in-kind
services per month in lieu of payment. On July 26, 2000, the BOCC approved the 2nd year renewal
agreement, and on July 18, 2001, the BOCC approved the current and final year's agreement.
CONTRACT/AGREEMENT CHANGES: To end lease agreement with the Botanical Garden Society
by providing a 14 day notice of termination,
STAFF RECOMMENDATIONS: Same as above.
TOTAL COST:
N/A
COST TO COUNTY: N/A
BUDGETED: Yes
No N/A
REVENUE PRODUCING: Yes
No X
AMOUNTPERMONTH_ Year
APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management _
ITEM PREPARED BY: ~J A'\ vJ h. 1ft
~, Sr. D1fector'?9~ Keys Operations
DIVISION DIRECTOR APPROVAL: (' fl / ~
Dent Pierce, Director of b c Works
\
DOCUMENTATION:
Included X
To Follow__
Not Required_
DISPOSITION:
AGENDA ITEM #9-
Revised 2/21/01
OK~~~Y ~~~~~E
(:lO!.) 29~.~&l'
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BOARD OF COUNTY COMMISSIONERS
MAYOR Charles 'Sonny. McCoy, District 3
Mayor Pro tem Dixie Spehar, District 1
Murray Nelson, District 5
George Neugent, District 2
Nora Williams, District 4
Office of the County Attorney
P.O. Box 1026
Key West, FL 33041-1026
305/292-3470 - Phone
305/292-3516 - Fax
MEMORANDUM
TO: John W. King, Acting Sr. Director
Public Facilities Maintenance
FROM: Suzanne A. Hutton CI7/1.....---
Assistant County Attor~
DATE: April 15, 2002
SUBJECT: Key West Botanical Garden Society
You have inquired as to what action you should take with regard to the non-payment for
utility consumption and upkeep under a lease between Monroe County and the Key West
Botanical Garden Society (KWBGS), You note that payment of $100 is due under the
original lease agreement dated August 11, 1999, as renewed on July 26, 2000, and July 18,
2001. By way of a copy of Ann Mytnik's March 25,2002 letter to Ms. Sharkey, it is apparent
that since September 1, 2001, no payments have been made to reimburse the County for
utility consumption and upkeep, You note in your memo that Ms, Sharkey stated in a
telephone conversation with Ann Mytnik that her lawyers instructed her not to pay
additional reimbursement because the land the office is situated on is owned by the
KWBGS.
I have seen a survey showing that some, if not all, of the portion of the Public Service
Building which is occupied by the KWBGS, is owned by the City of Key West, not the
KWBGS. I have no documents which clearly show that the KWBGS lease with the City
encompasses that segment which is occupied by a small portion of the Public Service
Building. Further, it is clear by the lease document that the payment is not for the right to
occupy the premises but is for utility consumption and upkeep only. Therefore, it is my
opinion that the KWBGS has a contractual obligation to reimburse the County for its utilities
and upkeep as provided by the lease agreement.
Inasmuch as there has been a material breach to the agreement, the lease may be
terminated under paragraph 23(a) of the original agreement as incorporated into the
subsequent renewals, This provides for termination upon breach of contract upon 14 days
notice in writing to effect termination. I would suggest placing on the next possible County
Commission agenda a request for approval to give 14 days notice of termination to the
KWBGS, with authority to turn off the electric at the end of 14 days for non-payment of
utility and maintenance costs according to the contract.
cc:
James L. Roberts
Dent Pierce
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RENEWAL AGREEMENT
(The Botanical Garden Society)
TInS Renewal is made and entered into this 18th day of July, 2001, between the
COUNTY OF MONROE and the BOTANICAL GARDEN SOCIETY in order to renew the
agreement between the parties dated August 11, 1999, and renewed July 26, 2000 (copies of
which are incorporated hereto be reference); as follows:
1. In accordance with Article 1 of the ,original agreement, the COUNTY exercises its final
option to renew the Agreement for one (1) additional year, provided the BOTANICAL
SOCIETY complies with all requirements of the new county policy dated 11109/99 for
non-profit organizations desiring office space in County facilities.
2. Payment by the BOTANICAL GARDEN SOCIETY for utility consumption and upkeep
remains at $100.00 per month.
3. The term of the renewed agreement will commence on August 11,2001, and terminate on
August 10, 2002.
4. In the event that the COUNTY vacates the Public Service Building, this agreement may
be terminated by providing thirty (30) days written notice to the BOTANICAL GARDEN
SOCIETY.
5. In all other respects, the original agreement between the parties dated August 11, 1999
remains in full force and effect.
BOARD OF COUNTY COMMISSIONERS
~NROE COUNTY, FLORIDA
b.L. By ~,e ~CLd
BOTANICAL GARDEN SOCIETY
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BL Jtlt!Z7111 /. . {l /
/(, President
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BJiliBW At AGREEMENJ:
(The Botanical Garden Society)
TI-IIS Renewal is made and entered into this 26th day of July, 2000, between the
COUNTY OF MONROE and the BOTANICAL GARDEN SOCIETY in order to renew the
agreement between the parties dated August 11, 1999, ( a copy of which is incorporated hereto
be reference); as follows:
1. In accordance with Article 1 of the original agreement, the COUNTY exercises its option
to renew the Agreement. The renewal term shall be for one (1) year. The COUNTY may
exercise an option to extend this agreement for one (1) additional year provided the
BOT ANICAL SOCIETY complies with all requirements of the new county policy dated
11/09/99 for non-profit organizations desiring office space in County facilities.
2. Payment by the BOTANICAL GARDEN SOCIETY for utility consumption and upkeep
remains at $ I 00.00 per month.
3. The term of the renewed agreement will commence on August 1 1,2000, and terminate on
August 10,2001.
4. In the event that the COUNTY vacates the Public Service Building, this agreement may
be terminated by providing thirty (30) days written notice to the BOTANICAL GARDEN
SOCIETY,
5. In all other respects, the original agreement between the panics dated August II, 1999
remains in full force and effect.
ITNESS WHEREOF, the parties have hereunto set their hands and seal, the d,ay and
t written above.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BycS~-F~
B .
ROBERT t-J, 'oN r.
DAn: r - ( -(9.(;J>
BOTANICAL GARDEN SOCIETY
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' THIS ~G~EEMENT, made !his 111h...day Qr August. 1999, by and between the Board ..
County CommIssioners or Monroe County. Florida (hereinafter referred Lo as SQCC) and Sot "Of
G d S . t (h 'r f ' . anlcal
ar en oc(e Y ereUla ter re erred to as The Society). a nOI-for-pront corporalion incorpOrated'
the Stale or Florida. 'In
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WHEREAS, IheBOCc has approved for Ihe Administrator to make limited, temporary office
space available to nonprofit organizations serving the County community On the condilion that the
organizations are responsible for their own cleaning. telephone and similar cosls and provide a
reasonable payment to the County for the cost of electricity: and
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WHEREAS. IIle Botanical Garden Society mainta,ns hundreds of Records. piclures. and
history of the Gardens that was started in 1939' and
WHr,Rr,AS, Il1e GOCC has dele'mll'er! 111"1 " " 'n Il1e besl 'nleresls 01 Monroe COunly 10
enl~r Inlo thiS aql cCln(~nt.
NOW. THEREFORE. lor ilnd in conSideration 01 Il1e mulual covenants conlained herein. the
parties agree as follows:
1, Contract Term and Sum. This agreement is for the period commencing August 11.
1999, and through August 10, 2000, unless earlier terminated pursuant to paragraplls 6 or 23 below.
Upon providing wrillen notice to the Society atleasl sixty days prior to the expiration date, GOce
may exercise an oplion to extend lhis agreement for two (2) additional years under the same ferms
and conditions. The Society hereby agrees to pay IIle GOCC the sum of $100.00 per month for the
utility consumption and upkeep costs.
2. SCOi2!' of Services. The Sociely shall provide Ihe program development. and
sponsorship necessary 10 accomplish wilhin Monroe Counly Il1e goals and purposes sel lorth by (he
Sociely in ils leller dated April 24, 1999, allached hereto as Exl1ibitA The Sociely shall install ils
own,lelephones, SUpply ils Own ollice .turnilure and equipmenl, and provide lor ils own janitorial
service
3. GOee Responsibililv. The GOee shall di'ecl ils Admin'slrator. l)opa,lmenl Heads.
eounly Allorney and s'alllo provide certain (acilities and support 10 Ihe Society as can be provided
wilhoul requi,ing an increase in personnel 0, any purchase' or lease ot real property The GOee
shall provide to Ihe Sociely, within (he aloremenlioned (imitalion, as well as all rules applicable 10
County, the fOllOWing'
a) One eXi5'inq oll,e", in ",; is condi\r"n, localer! ,n 11", I'oblrr. :;e,v'e<, lJuildinq,
~)I()() C()II(:~j(: 1~();Jd. ~:;loc:k 1~;I;Jnd. Key VV('SI. i'IUIICLJ
" / ~"C<)"k. Ace.,';,;. iJ',d .Au,/,/:_ n ". SO"",,\, ,"all """"/a", ade'1u."" a. ,,' complele
1 CU)/ <J~) 101 ;~ pC/lod 01 IOlll Y(~;jl~) alt~!l con~plct,on 01 ~'JI)y event or progr:Jm 111(: I:lOCe slwll 1):Jve
<Jccc~)s 10 the !)OOI~s. record:'.. and documenl:; 01 Ihe Soci(~ly Ti,e access to and In~~peClion 01 such
I)U01~:,. I <>COIO:; ;In<J docurnenh by IIw 130CC Sl1311 occur al any reasonal)le lime
. S "'! 'a' ~"''''!I'"oUc. a,.""",. 'I I", Soo;..,,, ,. '". <l" d s""" b~, '" '''0 p,,, I." .""".KO 0/:" works i
:,CIVIl.C':, ;jl\(j ;'Jc:tIV(tl(.~:; lJl\(lel 11'11:. I\~)((!.ern(~nl, .an Indcp(~I1<.1enl conll.lclol and not ,In unploy,.c, agen
'" ,." ". '"'' 01 "".' "'(lee 'II><. Soeiol \' .;""" "xe, e,so co"t,ol, di,ection, and SI,pe'v";,,,,, over Ihe
"""'''''. """''',,, p." ';0"''''' 'I'" / vOlu...'""" """uDh W",c11 ., pertorm5 "", wo, I. Althougll /hrs
^q". "... """ e; ;1 ':O)U""'o I,v" "Dr """'''''', ',i",,/o, i" "'any re'.peclS (but '"'' a") 10 a p." ''''''';1"", 1110
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. . ',. ....".au"" "mer '!han specifically provIded lor In !hIs Agreement ' 'r Y I
Civt;t; shall at no bme be legally respon~lbl~ lor. any negligence on the part 01 the. SOCiety, ~~ '
entPloy~?s, agents or volunteers resulling In either bOdily or personal injury or property 'damage io'
any mdJVldual. property or corporallon"
6, 'Modilicalion. 'Additions la, mOdification la, or deletions lrom lhe Provision of this
conlract may be made only in wriling and execuled by lhe BOCC. No modificalion shall become
effective wilhoul wrillen approval of both parties,
7. ' Breach and Penalties. Tile parties agree 10 full performance of the covenants
contained in IIlis contract Both parties reseNe Ihe right, at the discretion of each, 10 terminate the
seNices in this contract for any misfeasance, maifeasance or nonperformance of the Contract terms
or negligent performance of the contract lerms by the other party. Any waiver of any breach 01
covenants heroin Contained shall not be deemed to be a continuing waiver and shall not operate to
bar eilher party lrom deClaring a lorft"lu", 10. any SUcceeding breach either 01 the same Conditions
,or covCnal1ls or OI!1cr\,,'ise
8. Insurance Reguirements. The Society sllall carry, during the lerm of this agreement,
pUblic Iiabilily insurance. inctuding bodily injury and property loss damage 10 cover all claims,
demands or actions by any person or enlity in any way arising lrom Ihe operation of the Agreement.
Such liability insurance shall meel Ihe requirements 01 the Insurance Requirement Allachmenls
hereto. Monroe County shall be named as an additional insured under the insurance policy and
Such insurance shall be primary and non-contributing with any insurance carried by the BOCC, The
Sociely shall furnish Ihe County with a certificale evidencing the insurance required by this
paragraph at the lime of executing Ihis Agreement.
9. lndemnilicalion and.!.i9ld Harmless, Tile Society shall indemnify and hold harmless
the GOCC, their departments, agencies, olficials, employees, agents, servants and Contractors
againSI any claims, liabilities and expenses (inclUding reasonable allorney's fees) arising as a resull
01 any direcl and/or indirect action otllle Sociely, ils employees, agents, servants, volunteers and/or
contractors in Iho performance of the terms of this agreement or olherwise related to activity
conducted in IIle furthe.ance 01 Ihis agreement except to the exlent Ihat, in the case of any act 01
negligence, IIle Sociely reasonably relied upon material or services supplied by Ihe GOCC or any
employee of IIle GOCC. The Sociely shall immediately give notice to the SOCC of any suit, claim or
aClion made againsl ilthat is related to any activily under Ihis Agreement and will cooperate wilh Ihe
SOCC in lIle investigalion arising as a resull ot any suit, claim or action related 10 this Agreement
10. Pe!.f!lfu, The Society shall sec~re all required permits and/or licenses necessary to
carry oul any of the services rendered under Ihis Agreement,
11 {;Jw:; ;~.IY!_J~.~;51~11;J1i.()n:;
a} 'I I"" A~Jreell1<"" "1"111 lx, Con,; Ir ued by and governed unde, rhe laws 01 Ihe S'a Ie 01
I 10. "fa un((,,; s '" an ar ca of law pr e, ernpled by I e(le,al law The Society ag.ees lor vellU,. 01 any
dlSpule 10 lie in Monroe COunly, FlolI<1<3
b) rhe Soc,e.y sl'lall CCHnply wilh all tederal, slale and local laws and O.drnances
a P pli Co ble 10 I he wo r k 0' po yr ne III 10. worl, Uw re ot, and shall no I discrimina loon {(1 e g rOil nd s of
"'ee. COlor. .elig,o", s'''. aue 0, nal,onal o';g,n in 'he perrormance 01 worl, undc" Ihi" Ag.eerr"""
....
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. , ,. -g-.....I.l..,,,~ C;l.lluexeCU(ive ord'
-.--...... "" Ull~ t\~reemenl and 'shall entiUe the 80ee lo lermln ' ers ,
I\yreemenllmmedialely upon delivery of Wollen notice 10 the Society, . .... ale thIs
.12. laxes, The soee is exempl from Federal, Excise and Slale of Florida Sales Tax.
I
13. Finance Chames. The SOCC will not be responsible for any finance charges.
14. Severability. If any Provision of this contract shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this contract, or the application of such
provision other than those as to which it is invalid or unenforceable, shall not be affected thereby;
and each Provision of this contract shall be "'alid and enforceable to 1I1e fullesl extent permilled by
law,
15. fort;!' Majeure. The Society sl'"lInot be liable for delay 111 performance or failure to
perform 111 whole or in part, the services due to Ihe OCcurrence of any contingency beYond ils control
or Ihe Control 01 any 01 its s"b.conlraclors 01 Suppliers, including labor dispute. strike, labor Shortage;
war or acl 01 war, wl'elhcr an actual declaration thereof is made or not, insurrection, sabotage, riot or
civil commotion, act of public enemy, epidemic,' quarantine restriction, accident, fire, explosion,
storm, flood, drought or other act' of God, act of any governmental aUlllorily, jurisdiclional action, or
insuffici en t s u ppl Y 01 f ue I, electricity, or materi al s or sup plies, or tecll nical failure where the Socie ty
has exercised reasonable care in the prevention thereof, and any such delay or failure shall not
constitute a breach Of the Agreement. The Society shall notify lhe Soee of any delay or failure to
perform within five (5) days of Such action. Upon demand of the GOCC, the Society must furnish
evidence of the causes of such delay or failure,
16. Assiqnment. The Society Shall not assign, transfer, sublease, pledge, hypothecate,
surrender, Or otherwise encumber or dispose of this contract or any estale crealed by this contract or
any interesl in any portion of the same,' Or permit any other person or persons, Company or
corporation to perform services under this Contract without first obtaining Ihe wrillen consent of 1I1e
GOCC. In the event 01 Such consent, III is agreelnent shall be binding upon the Sociely's successors
and ?ssigns,
17. Disclosure. The Sociely shall be required to list any or all .potential conflicts of
interest, as defined by Florida Statutes Chapler 112, Part III and Ihe Monroe County Ethics
Ordinance. The Society shall disclOse to Ihe GOCC all actual or proposed conllicls of interest,
financial or otherwise, direct or indirect, inVOlving any client's iilteresl which may conslilule a conflict
under said laws.
13. AdditLonal Conditions. The Society agrees 10 accept additional conditions gOverning
Ihe USe of lundo or performance of work as may be required by federal, $I"le 01 local slalLM,
or d in;'III(<.' Or I e'l u 1;'11 fon 0 r by ot he r polie y adopted by 111 e BOC C S u eh ;r ddi I 'on 01 con (I i Iron s 0 ho II
not I'e e om e ell cr: Irv c until the Sod el y 11<, s I'e c n nol,lre d rn w, i t,n g and no suel) "d dilr 0 nal co nd i Iro n s
shall !)(~ Inlp()~;e<i ielroaClively
1 ~l. . !r:rrj~""de..fll p fC!fr!..o,;lQrWLJ ~rjHI!lr'D.L The SOCI" I Y shall a I all tlln e 0 exere,se
"'dcPC"'dent l"oleSSrclnal Judgment and shall assume lull responsrbility lor Ihe s'",vice to be prov,ded
and vvorh to I)e cOlnpleled.
20. ,:a...~..QU'roQertv The SOCiety shall be responsrble 10 the BOee 101 Il1e safelceeping
and proper use 01 the property entrusted to tile Society's care, and to plOCeSS all documents
n Cee ss a I y 10 Con linn", will lout in t e flll p Iro n", any main te n a nce 01 se rvrcc eon II " el s r cia tin g 10 S UCll
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~~. .....,~" "UIVI<;eS MOnday through Fnday, 8:0011""',.
-~. -..._" u.at lhelr 'Palrons do nol lofter or COngregale on !he PUblicS '1Il," _. I
. llunding property. .. . ~ ety ce
-21. . !:thlcs Claus~. The Soclely warranls lhal il has nol employed, relained or o!herwi
had acl on ils behalf any former COunty officer or employee Subject 10 !he prohibiUon of Section 2 ~~
Ordinance No. 010-1990 or any SOCC officer or employee in violalion of Seclion 3 of Ordinance No
010-1990. For breach Or viola[ion of Ihis provision, Ihe County may, in its discretion. lerminale [hi~
Contracl wilhout liabilily and may also. in its discrelion, deduct Irom the contracl Or purcllase price, or
OUlelWise recover, [he full amount 01 any lee, Commission. percentage, gift orconsidcralion paid [0
Ule former Ihe SOciely or GOee olficer Or employee.
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22. !ioti~ Any nolice required or permiUed under this' Agreemenl shall be in wriling and
hand-delivered or mailed, POstage prepaid, by certified mail, return receipt requested, to the other
pariy as follows:
T9_.Jll~~~:L
I<cy \!Vest Botanical Garden SOCIC:ly
p.O. Box 2436
Key West, FL 33045
.I<L~un.!y
Monroe COunly Facililies MainlQnance
3583 S. Roosevelt Boulevard
Key West, FL 33040
23. I.erminalio!l, Termination 01 this Agreement shall Occur at the natural'ending date, or
earlier shOuld either party determine that there has oCCurred any matenal breach of any covenanls
herein contained, or either party OthelWise deems il in their best interest to terminate~ Termination
may be with or without cause. and shall require wrillen notice 10 be given [0 the Other party as
fallows:
a) In Ihe evenl either party terminates lor breach of contract, termination shall be
effective at such time as the terminating party shall declare in its acllo terminale lor cause, with a
minimum of fourteen days notice in Writing required prior to effective terminalion
b) In [he event eilller party terminates without cause. the terminalion shall nof
t<Jke.effect until atteast sixty days SUbseQuent to written nOlice to the other party, and Ihe effeclive
d~le ollerminalion Sllall be specilied in said nolice.
24. Eull AQreemenl. This Agreement constitutes the enlire and lull underslanding
belween the parties hereto and neither party shall be bound by any represenlalions, statements,
promises Or agreements not expressly set 10rlh herein and in duty execuled amendments under
paragraph 6 hereof.
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A ;~t~~~~Y~:-K LHAGE, Clerk
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- -. · ""G "", ues have executed !hIs aoreementiiie daY' iiriit';e"s' "rfi ", t
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D'L,
(SEAL)
Allesl:
By_____._.____._____._
Tille
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BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BycSILJ~-F~
Mayor/Chairman
BOT AN/CAL GARDEN SOCIETY
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