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Item D3 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: JULY 15.2003 Division: TDC Bulk Item: Y es ~ No Department: AGENDA ITEM WORDING: Approval to rescind Agreement with Keys Marine Conservancy for the acquisition and construction of a nature center. ITEM BACKGROUND: The contract has not been executed due to not being able to meet insurance requirements because no land has been acquired to commence the project. The District IV Advisory Committee from which the funds were allocated voted at their meeting of June 3, 2003 to rescind these funds. TDC approved same at their meeting of June 25, 2003. PREVIOUS REVELANT BOCC ACTION: SOCC approved original Agreement at their meeting of March 22, 2001. CONTRACT/AGREEMENT CHANGES: Rescind STAFF RECOMMENDATIONS: Approval TOTAL COST: $250.000 BUDGETED: Yes ---X- No COST TO COUNTY: $250.000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes X- No AMOUNT PER MONTH_ Year APPROVED BY: County Ally -1L OMBIPurc~:.. ---1LA' ~sk Management X DIVISION DIRECTOR APPROVAL: (Lynda Stmirt) DOCUMENTATION: Included X To Follow_Not Required_ AGENDA ITEM #Q3 DISPOSITION: Revised 2/27/01 GRANT OF FUNDS This AGREEMENT dated the~day of J:MJ!..c112001, is entered into by and between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, hereinafter "County," on behalf of the TOURIST DEVELOPMENTCOUNCIL, hereinafter "TDC" and Keys Marine Conservancy, a Florida not-far-profit corporation, hereinafter II Contractor" . WHEREAS, the third penny of Tourist Development Tax may be used to acquire, construct, extend, enlarge, remodel, repair, improve, maintain, or promote museums, zoological parks, fishing piers, nature centers or sports arenas which are publicly owned and operated or owned and operated by not-for-profit corporations, and WHEREAS, Contractor has applied for funding for the Keys Marine Conservancy project for the acquisition and construction of a nature center, hereinafter "the Property"; and WHEREAS, the County and TDC have determined that it is in the best interest of the County, for purposes of promoting tourism and preserving the heritage of the community, to acquire, construct, repair and rehabilitate the property for use as a nature center open to the public; NOW, THEREFORE, in consideration of the mutual covenants and payments contained herein, the Contractor and the County have entered into this agreement on the terms and conditions as set forth below. 1. AGREEMENT PERIOD. This agreement is for the period March 22, 2001 through September 30, 2005. This agreement shall remain in effect for the stated periOd unless one party gives to the other written notification of termination pursuant to and in compliance with paragraphs 7,12 and 13 below. 2. SCOPE OF AGREEMENT. The Contractor shall acquire and construct.a nature center to be used to promote and advance ecotourism in the Tourist Development District IV of Monroe County, Florida. 3. AMOUNT OF AGREEMENT AND PAYMENT. The County shall provide an amount not to exceed $250,000 in reimbursement for materials and services used to acquire, improve, rehabilitate, repair and renovate the property, with $50,000 (which is approximately 10% of the total project) to be budgeted each year for five years to fulfill this contract. The Board of County Commissioners and the Tourist Development Council assume no liability to fund this agreement for an amount in excess of this award. Payment for expenditures permissible by law and County policies shall be made through reimbursement to Contractor upon presentation of invoices, canceled checks and other documentation necessary to support a claim for reimbursement. Included in said documentation shall be proof that the Contractor has received and applied to the property matching funds equivalent to or greater than the amount invoiced to the Keys Marine Conservancy Capital Project Funding FY 2001 - FY 2005 County. Monroe County's performance and obligation to pay under this agreement is contingent upon an ann.ual appropriation by the BOCC. 4. REPORTS. The Contractor shall provide financial reports in summary of activity on fonns provided or approved by the TDC, and quarterly narrative reports of activity under the approved work plan. The Contractor shall keep such records as are necessary to document the perfonnance 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 govemment bodies. It is the responsibility of the Contractor to maintain appropriate records to insure a proper accounting of all funds and expenditures. The Contractor understands that it shall be responsible for repayment of any and all audit exceptions which are identified by the Auditor General for the State of Florida, the Clerk of Court for Monroe County, the Board of County Commissioners for Monroe County, or their agents and representatives. In the event of an audit exception, the current fiscal year grant award or subsequent grant awards will be offset by the amount of the audit exception. In the event the grant is not renewed or supplemented in future years, the Contractor will be billed by the County for the amount of the audit exception and shall promptly repay any audit exception. 5. MODIFICATIONS AND AMENDMENTS. Any and all modifications of the terms of this agreement shall be only amended in writing and approved by the Board of County Commissioners for Monroe County. 6. INDEPENDENT CONTRACTOR. At all times and for all purposes hereunder, the Contractor is an independent contractor and not an employee of the Board of County Commissioners of Monroe County. No statement contained in this agreement shall be construed as to find the Contractor or any of its employees, contractors, servants or agents to the employees of the Board of County Commissioners of Monroe County, and they shall be entitled to none of the rights, privileges or benefits of employees of Monroe County. 7. COMPLIANCE WITH LAW. In carrying out its obligations under this agreement, the Contractor shall abide by all statutes, ordinances, rules and regulations pertaining to or regulating the provisions of this agreement, including those now in effect and hereafter adopted. Any violation of said statutes, ordinances, rules or regulations shall constitute a material breach of this agreement and shall entitle the County to terminate this agreement immediately upon delivery of written notice of termination to the Contractor. Keys Marine Conservancy Capital Project Funding FY 2001 - FY 2005 2 8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS AGREEMENT. The Contractor shall include in all agreements funded under this agreement the following tenns: 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 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. Keys Marine Conservancy Capital Project Funding FY 2001 - FY 2005 3 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 Pennits. 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 pennits whether federal, state, County or City. 9. HOLD HARMLESS/INDEMNIFICATION. The Contractor hereby agrees to indemnify and hold harmless the BOCC/TDC and any of its officers and employees from and against any and all claims, liabilities, litigation, causes of action, damages, costs, expenses (including but not limited to fees and expenses arising from any factual investigation, discovery or preparation for litigation), and the payment of any and all of the foregoing or any demands, settlements or judgments arising directly or indirectly under this agreement. The Contractor shall immediately give notice to the County of any suit, claim or action made against the County that is related to the activity under this agreement, and will cooperate with the County in the investigation arising as a result of any suit, action or claim related to this agreement. 10. ANTI-DISCRIMINATION. The Contractor agrees that they will not discriminate against any of their employees or applicants for employment or against persons for any benefit or service because of their race, color, religion, sex, national origin, or physical or mental handicap where the handicap does not affect the ability of an individual to perform in a position of employment, and to abide by all federal and state laws regarding non-discrimination. 11. ANTI-KICKBACK. The Contractor warrants that no person has been employed or retained to solicit or secure this agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, and that no employee or officer of the County or TDC has any interest, financially or otherwise, in the said funded project, except for general membership. For breach or violation of this warranty, the County shall have the right to annul this agreement without liability or, in its discretion, to deduct from the agreement price or consideration, the full amount of such commission, percentage, brokerage or contingent fee. Keys Marine Conservancy Capital Project Funding FY 2001 - FY 2005 4 12. TERMINATION. This agreement shall terminate on September 30,2005. Termination prior thereto shall occur whenever funds cannot be obtained or cannot be continued at a level sufficient to allow for the continuation of this agreement pursuant to the terms herein. In the event that funds cannot be continued at a level sufficient to allow the continuation of this agreement pursuant to the terms specified herein, this agreement may then be terminated immediately by written notice of termination delivered in person or by mail to Contractor. The County may terminate this agreement without cause upon giving written notice of termination to provider. The County shall not be obligated to pay for any services or goods provided by Contractor after Contractor has received written notice of termination. 13. TERMINATION FOR BREACH. The County may immediately terminate this agreement for any breach of the terms contained herein. Such termination shall take place immediately upon r~ceipt of written notice of said tennination. Any waiver of any breach of covenants herein contained to be kept and performed by Contractor shall not be deemed or considered as a continuing waiver and shall not operate to bar or prevent the County from declaring a forfeiture for any succeeding breach either of the same conditions or of any other conditions. Failure to provide County with certification of use of matching funds or matching in-kind services at or above the rate of request for reimbursement or payment by is a breach of agreement, for which the County may terminate this agreement upon giving written notification of tennination. 14. ENTIRE AGREEMENT. This agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements with respect to such subject matter between the Contractor and the County. 15. CONSENT TO JURISDICTION. This agreement, its perfonnance, and all disputes arising hereunder, shall be govemed by the laws of the State of Florida, and both parties agree that the proper venue for any actions shall be in Monroe County. 16. ETHICS CLAUSE: Contractor warrants that he has not employed, retained or otherwise had act on his behalf any former County officer or employee in violation of Section 2 or Ordinance No. 10-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 10-1990. For breach or violation of the provision the County may, at its discretion tenninate 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. Keys Marine Conservancy Capital Project Funding FY 2001 - FY 2005 5 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 perfonn work as a Contractor, supplier, sub-contractor, or consultant under a agreement with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 18. AUTHORITY: Contractor warrants that it is authorized by law to engage in the performance of the activities encompassed by the project herein described. Each of the signatories for the Contractor below certifies and warrants that the Contractor's name in this agreement is the full name as designated in its corporate charter (if a corporation); they are empowered to act and contract for the Contractor, and this agreement has been approved by the Board of Directors of Contractor or other appropriate authority. 19. LICENSING AND PERMITS: Contractor warrants that it shall have, prior to commencement of work under this agreement and at all times during said work, all required licenses and permits whether federal, state, County or City. 20. INSURANCE: Contractor agrees that it maintains in force at its own expense a liability insurance policy which will insure and indemnify the Contractor and the County from any suits, claims or actions brought by any person or persons and from all costs 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 perfonnance by Contractor of the obligations set forth in this agreement. At all times during the term of this agreement and for one year after acceptance of the project, Contractor shall maintain on file with the County a certificate of the insurance of the carriers showing that the aforesaid insurance policy is in effect. The following coverage's shall be provided: 1. Workers Compensation insurance as required by Florida Statutes. 2. Commercial General Liability Insurance with minimum limits of $500,000 per occurrence for bodily injury, personal injury and property damage. 3. Comprehensive Auto Liability Insurance with minimum limits of $300,000 combined single limit per occurrence. The Contractor, the County and the TDC shall be named as additional insured, except workers compensation. The policies shall provide no less than 30 days notice of cancellation, non-renewal or reduction of coverage. At all times during the term of this agreement and for one year after acceptance of the project, Contractor shall maintain on file with the County a certificate of insurance showing that the aforesaid insurance coverage's are in effect. Keys Marine Conservancy Capital Project Funding FY 2001 - FY 2005e 6 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 Keys Marine Conservancy: Joseph Pinder 1/1 102 East Ridge Road Islamorada, FL 33036 For County: Lynda Stuart Monroe County Tourist Development Council 1201 White Street, Suite 102 Key West, FL 33040 and Suzanne Hutton, Asst. County Attorney 310 Fleming St. Key West, FL 33040 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first above written. (SEAL) ATTEST: DANNYL. KOLHAGE,CLERK BOARD OF COUNTY OMMISSIONERS OF MONROE COUNTY, FLORIDA By: Deputy Clerk By: Mayor/Chairman (SEAL) ATTEST: Secretary Keys Marine conservan~ A By: ~g ~;;? tI President By: 7 Keys Marine Conservancy Capital Project Funding FY 2001 - FY 2005