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Item D03 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20. 2004 Division: TDC Bulk Item: Y es ~ No Department: AGENDA ITEM WORDING: Approval of an Agreement the City of Key West for improvements to the McCoy Indigenous Park bird habitats to better serve the injured birds rehabilitated at the facility; overall ADA improvements to the park walkways in the butterfly garden, pond and bird enclosure areas to also serve to allow bird waste to be processed by the sewer system project located at McCoy Indigenous Park in an amount not to exceed $127,000, FY 2005, DAC I, Third Penny Capital Resources ITEM BACKGROUND: OAC III approved recommendation at their meeting of August 11, 2004, TOC approved same at their meeting of August 25, 2004 PREVIOUS REVELANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: New agreement STAFF RECOMMENDATIONS: Approval TOTAL COST: $127,000 BUDGETED: Yes -L No COST TO COUNTY: $127.000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes X- No AMOUNTPERMONTH_ Year APPROVED BY: County Alty ---X- o~ ~--f~ Management-L DIVISION DIRECTOR APPROVAL: Lynda M. Stuart DOCUMENTATION: Included X To Follow_ Not Required_ DISPOSITION: AGENDAITEM# I) -,,3 Revised 2/27/01 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: City of Key West Contract#_ Effective Date: Expiration Date: 10/1/04 9/30/05 Contract Purpose/Description: Approval ofa capital grants agreement with the City of Key West for improvements to the McCoy Indigenous Park bird habitats to better serve the injured birds rehabilitated at the facility; overall ADA improvements to the park walkways in the butterfly garden, pond and bird enclosure areas to also serve to allow bird waste to be processed by the sewer system project located at McCoy Indigenous Park in the amount of $127,000, FY 2005, DAC I Capital Project Resources Contract Manager: Maxine Pacini (Name) 3523 (Ext. ) TDC # 3 (Department/Stop #) for BOCC meeting on 10/20/04 Agenda Deadline: 10/5/04 CONTRACT COSTS Total Dollar Value of Contract: $ $127,000 Current Year Portion: $ $127,000 Budgeted? YeslZl No 0 Account Codes: Grant: $ $127,000 County Match: $ 117-77040-530340 -T57M 532X-530340 ADDITIONAL COSTS Estimated Ongoing Costs: $-'yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) - - --- CONTRACT REVIEW Changes tl~M Needed,.,., Division Director h Y esO N~ S.Hutton Risk Management I D~ i)l( YesO NoG O.M.B./Purchasing YesO No!E( County Attorney ~~ YesDN~ Comments: SEP-30-04 11.01 FROM.MONROE COUNTY ATTY OFFICE 10.3052823516 PAGE 2/13 GralJt Award Aaf1l8fll8r}t This lnter10caJ AGREEMENT dated the day of 200tis entered into by and betWeen the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, heretnafter .County" or .GRANTOR. - on behalf of the TOURiST DEVELOPME~ COUNCil. hereinafter -TOC.. and CITY OF KEY WEST, it munjcjpal corporation, herein r cGrantee-. , i WHEREAS, the third penny of Tourist Development Tax may be U$8d ~o acquire, construct. extend, enlarge. remodel. repair or improve. convention centers, spons stadiums, sports arenas, coliseums. auditoriums, fishing piers, museul11$. ZOOlogical parks, nature centers and beaches which are publicly owned and operatecl or owned and operated by not-for-profit corporations, and WHEREAS. Grantee has included operations and maintenance costs of the facility in its annual budget; and WHEREAS. Grantee has applied for funding for the McCoy Indigenous Part< Habitat and ADA Improvements project to improve and rehabilitate the Mc:Coy Indigenous Park property hereinafter "the Property"; and WHEREAS. the Grantor and TOe have determined that it is in the best interest of the County, for purposes of promoting toLlism and preserving the heritage of the community, to improve, 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 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 October 1, 2004 through September 30, 2005. This agreement shalJ 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 construction of pennanent bird habitat structures, connection of bird waste disposaJ system to sewer, and trail improvements induding stip-resistant SUI'fa<>>s, ramps and swing gates, as described in the funOng application. All work for which grant funds are to be expended must be compfeted by the stated termination date of September 30, 200S and an invoices pertaining to this project shall be submiUed to the Finance Depaihrram of Monroe County no later than September 30. 2005 to be ~fot payment. a) There shall be a project manager to aacnOWledge receipt of goods or work performed. This Project Manager ShaD be Annalise Mannix-Lachner. P.t;.. Manager, EnsJneering Services. City of ~ West. ~ address and phone number are 604 Simonton street. Key West. FI. 33040, and 305-292-8195. Should there be a change in the] project manager SEP-30-04 11,01 FROM,MONROE COUNTY ATTY OFFICE 10,3062823618 PAGE 3/13 specified in the Grantee's application. a new project manager shall be designated and notice of the desiSJlation shall be provided to TDClCounty. b) If, and to the extent that, Grantee contracts for any of the work funded under this agreement to be performed or completed, Grantee sha" give notice to County of the contractuaJ relationship, provide County with a copy of the contract and shall require the contractor to comply with all the terms of this contract. Should grantee contrad the work and then decrease the scope eX work to be peJformed by the contractor, Grantee shall provide County with an amended contract executed by Grantee and its oontractor. c) Grantee shall exerci8e good internal controls to 8SSl.I'8 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 an independent consultant if necessary. requjred to establish that materials which are putpOtted to be applied to the project are in fact so applied. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not: to exceed 5127.000 for matetiats and services used to improve, rehabilitate, repair and renovate the property. 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 W1der this agreement is contingent upon ... annual appropriation by the BOCC. a) Payment for expenditu"es permissibte by law and County policies shall be made through reimbursement to Grantee upon presentation of Application for Payment Summary _ AlA Document G702, invoices. canceled chedcs and other doaJmentation necessary to support a claim for reimbursement. Included in said documentation shall be proof that the Grantee has receiVed and applied to the property matching funds equivalent to or greater than the amount invoiced to the Grantor. The appUc:ation 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 snaJl also proVide partial releases Of liens or certifications Of non-fien if appIicabIe_ GIantor Shall retain 10% Of any payment on work in progress until the Grantee has provided a Final Release of Uen for each vendor/Contractor for whom payment is rRql aested. Final payment will not be made until the following document& are complete and submitted to file Grantor: AlA Document (7702 Application for Payment Summary AlA Document G-704 Certificate of Substantial Completion AlA Document G-7(1) Contracto(s Affidavit of Debts & Claims AJA Document G-7Q6A Contractor's Affidavit of ReIea8e of Liens AlA Document G-7C1l Consent c:A Surety to Final Payment Final Release of Usn Affidavit and Partial Release at Uen All payment requests must be submitted no later than the completion of project of September 30. 2005_ Invoices received after September 30. 2005 will not be oonsidered for payment. 2 SEP-30-04 11.01 FROM.MONROE COUNTY ATTY OFFICE 10.3052823516 PAGE 4/13 b) Grantee may elect to have vendors and oontractors paid through the direct vendor method, upon submission of appropriate documentation as outlined above and a specific request tf)at payment be made directly to the vendor or conti actor rather than to Grantee. c) Application of matching funds requires actuaf payment of the matching funds, or. in the alternative. a commitment of said funds and that the portion of the project for which the matching funds are to be used has been sufficiently completed to require payment of said matching funds. Mere obligation through execution of a oontract or approval of a budget item to be paid from matching funds will not sufliaa. d) Documentation shall be submitted to the me Administrative Office to show the receipt and application of in-kind donations of goods, professional services. and materials. Said dOQ,unentation sh~ld include invoices. bills of lading. etc., and be verified as received and applied to the project thro~ a notarized statement of the project architect, engineer. general contract~ or project manager. The receipt and application to the project of volunteer labor are to be documented and verified by notarizsd signature d the project architect. engineer, general <xx.tram- or project manager. and said documentation submitted to the TOC Adminls~tive Office. All Submissions sh~/' identify the items included in the schedule of values attached hereto and incorporated herein as Exhibit A which arB 60Ught to be reimbw'sed and shall indicate the percer atagc of completion of the overaU project as of the submission. This document should be signed by the project architect. engineer. genera' contractor or project manager. Photographs showing progress on project shall be included in any payment request. e) Grantee must submit all documentation for finaJ payment on or before the termination date of this ~t pf September 30, 2005. Invoices received after September 30, 2005 will not be considered for payment 1) At any time that the documentation requirement polides of Monroe County are revised, Grantee shall co~/y thereafter with such increased requirements, or further funding under the agreement may be terminated by County. g) Upon s. ~ssful completion of this Grant agreement. the Grantee may retain ownership Of the ,., and personal property acquif'8d and/or improved with funcfing under this Grant Agreement. ,However. the Grantee shaJl complete and sign a Property Reporting Form for personal property and forward said completed form with the appropriate invoice to the TDC AdministnJtive Offia!. Real property 8<XlUired Of' improved through funding U1der this agreement shall remain dedicated for the purposes set forth herein or for other purposes which promote tourism and retain ownership of said property in the Gnnee. The following terms shafl apply: (i) The Grantee shall have the use of the equipment and other personal property at the project site for so long as the faality is operated by Gra..-ee, open to the public. and has a primary purpose of promoting tourism. (0) At such tirr14t as any of the conditions in $Ub-paragraph (i) above cease to exist, the Grantee shalt tran$fer ownership and posseSsion of equipment and personal property to alanother not-for -profit organization which is a facility for which tourist develOpment taxes may be used ptnUant to Florida Statute; and refund to the County the amount of Tourist Dewfopmet'lt funding received for the real property phases of the project at such time that the Grantee demolishes the project facility or divests itself of ownership or possession d the real ] SEP-30-04 11,02 FROM,MONROE COUNTY ATTY OFFICE IO'305282351S PAGE 5/13 property, or the use of the property no longer has a primary purpose of promoting touri&m. This provision shaJl 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 OCQJr 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 toss, damage or injury caused by the use of. real or personal property or equipment purohased through funding under this Agreement 4. RECORDS AND REPORTS. The Grantee shafl provide finandal repons in summary of activity on forms provided or approved by the me. and quarterly narrative reports of activity LI1der the approved work plan- The Grantee shall keep such records as are necessary to document the performance d 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. It is the responsibifity of the Grantee to maintain appropriate recordS in accordance with generally accepted accounting principles consistenUy applied to insure a proper accounting of all funds and expenditures. The Grantee Ln1erstandS that it shalf be responsible for repayment of any and all audit exceptions whim are identified by the Auditor General for the State of Florida. the Clerk of Court for Monroe County, the 8oa'd of County Commissioners for Monroe County, or their agents and representatives. In the event of an aLKIit elCC8Ption, the aJ1l'ent fiscal year grant award or subsequent grant awards will be offset by the amount of the audit exception. fn!he 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. (s) Public Access. The County and Grantee shall allow and permit reasonable access to. and inspection of, aU 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 canjunction with this Agreement; and the County shall have the right to unilaterally cancef this Agreement upon violation of this proviSion by Grantee. 5- MODIFICATIONS AND AMENDMENTS. Any and all modifications of the terms of this agreement shaU be only amended in writing and approved by the Board of County Commissioners for Monroe County. The terms, covenants. condi~ and provisions of this Agreement shall bind and inure to the benefit of the County and Grantee and their respective legal representatives. successors, and assiQn$_ 6. INDEPENDENT CONTRACTOR. At au timea 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. conttacturs, servants or agents to the employees of the Board of County Commissioners Of Monroe County, and they shall be entitIQd to none of the rights. privileges or benefits of employees of Monroe County. 4 SEP-30-04 11,02 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 8/13 (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 d 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 earrying out its obligations under this a9lJement, the Grantee shall -abide by aU statutes, ordinances, rules and regulations pertaining to or regulating the provisions of this agreement, including those now in effect and hereafter adapted- .. Any viOlation of said statutes, ordinances, rules or regulations shall constitute a material breach of this agreement and shalf entitle the Grantor to terminate this 89"eement immediately upon deliYary 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 tenns: a) AntkIi8crimination. ConlraQor agrees that they will not discriminate against any employees or applicants for employment or against persons for any other benefit or service W1der 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 individuaf to perform in a position of employment. and to abide by an federal and state laws regarding non- cisaiminatian. b) Anfi.kickback. Contractor wcmmts 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 offtcer of the Contractor has any interest. fmancially 01' otherwise, in contractor. For breach or violation of this warranty. the Contractor shall have the right to annu' this agreement without liability or, in its discnttion. to deduct from the agreement price or consideration, the full amount of SUch commission, percetdaQe. brokerage or oonti'Igent 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 hannlessftndemnification. Contractor acknowledges that this agreement is funded at least in part by the County and agrees to indemnify and hold hannless the CoU1ty and any of its officers and employees from and against any and atl claims, liabiDties, litigation, causes of action, damages. costs. expenses (induding but not limited to fees and expenses arising from any factual investigation, discowry or preparation for litigation), and the payment of any and all of the foregoing or any demands, settlements or judgrrients (colfectivety Claims) arising directly or indirectly from any negligence or aiminal 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 daim related this agreement. d) 1nstGt'lCe. Contractor agrees that it maintains in force at its own expense a liability insurance policy which will insure and indemnifY the Contrador and the County from any suit&. Claims or actia1s 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 5 SEP-30-04 11,03 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 7/13 occurring during the agreement or thereafter that results from perfonnance by Contractor of the obligations set forth ;n 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 inSUla'1ce 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 S3OO,OOO combined singae limit per occurrence. The Contractor. the County and the TOC shall be named as additional insu-ed. exempt workers compen$8tion. The poJicies shall provide no less than 30 days notice of cancelJation. non-tenewaJ or reduction of coverage. At. all times during the term of this agreement and for one year after acceptance of the project. Contractor shall maintain on file with the County a certificate of insurance showing that the aforesaid insurance coverage's are in effect. e} licensing and Permits. Contractor warrants that it shall have, prior to commencement of work under this agreement and at all times during said work. all required licenses and permits whether federal, state. County or City. 1) Right to Audit. The Contrador shall keep such records as are necessary to document the performance of the agreement and expenses as incurred, and give access to these rec::ords at the request of the TOC, the County. the State of Florida or authorized agents and representatives of said government bodies. 9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold hannless the BOCClTDC and any of its officers and employees from and against any and all claims. liabilities, litigation. causes of action. damages. costs, expenses (including but not limited to fees and expen$e$ arising from any factual investigation, discovery or preparation for litigation). and the payment of any and atl 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, daim or action made against the Grantor that is related to the activity under this ~nt. and wiD cooperate wi1h the Grantor in the investigation arising as a result of any suit, action Of claim related to this agreement. (a) Non-Waiver d 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, seIf-in8lnrlC8 coverage. or local government liability inswance pool coverage shsJ. not be deemed a waiver of immunity to the 8Jdent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. 6 SEP-30-04 11,03 FROM,MONROE COUNTY ATTY OFFICE ID'30S2823S1S PAGE 8/13 (b) PriVileges and Immunities. All of the prhriJeges and immunities from liability_ exemptions from laws, ordinances, and rules a'ld pensions and relief. disability. workers' compensation. and other benefits whim apply to the activity of officers, agents, or employees of any pubtic agents or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shaD apply to the same degree and axtent to the performance of such functions and duties of such officers, agents, voll.l1teers, or employees outside the territorial limits of the County. 10. NONDISCRIMINATION. County and Grantee __ that there will be no discrimination against any person, and it is expressly understood that ~ a determination by a court of competent jurisdiction that diScrimination has occurred, thi. Agreement automatically terminates without any ftdler action on the part of any party, etrective the date of the court order. COU1ty or Grantee agree to comply with aJl Federal and Florida statutes, and aJllocal ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) litre va of the Civil Rights Ad Of 1964 (Pl 88-352) which prohjbits discrimination on the b8s;s of race, cofor or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 use ss. 1681-1683, and 1685-1686), which prohibits cisc;rimination on the basis of sex; 3) Section 504 of the Rehabilitation Ad. of 1913_ as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps: 4) The Age Discrimination Ad. of 1975, as amended (42 use 55. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Ad Of 1972 CPl 92-255), 8$ amended, relating to nondisaimination on the basis of drug abuse; 6) The Comprehensive AlCOhOl Abuse and AImhaIism Prevention. Treatment and Rehabilitation Ad <<1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The PubHc Health Service Ad of 1912. ss. 523 land 527 (<42 use ss. 69Odd-3 and 29Qee..3), as amended, relating to confidentiality of alcohol and drug abuse patent recads; 8) ntle VIII of the Civil Rights Ad of 1968 (42 use s. et seq.), as amended. relating to nondiscrimination in the sale. rental or financing of housing; 9) The Americans with Oi6abiJities A1:;t of 1990 (42 use s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondisaimination provisions in any Federal or state statutes which may apply to the parties to, ex the subject matter c:A, this Agreement 11. ANTI-KICKBACK The Grantee warrants that no person has been employed a retained to solicit or seQJre 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, financiaUy or otherwise, in the said funded project. except for general membership_ For breach or violation of this warranty, the Grantor shaI have the right to amul 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. 2005. Termination prior thereto shall occur whenever funds cannot be obtained Of camot be continued at a Je~1 sufficient to altow for the oontinuation of this agreement pwsuart to the terms herein. In the event that foods C3VlOt be continued at a level sufficient to aJJow the continuation of this agreement pursua'lt to the terms specified herein. this agraement may then be terminated immediately by written notice of termination delivered in person or by mail to Grantee. The Grantor may tenninate this agreement without cause upon giving written notice of termination 7 SEP-30-04 11.04 FROM.MONROE COUNTY ATTY OFFICE 10.3062823616 PAGE 8/13 to Applicant The Grantor ShaJl 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 shaJl 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 forfeihn 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 rats of request for reimbursement or payment by is II breach of agreement. for which the Grantor may terminate this agreement upon giving written notification d ter,nination 14. ENTIRE~ EEMENT. This agreement constitutes the entire ~nt of the parties hereto with to the subject matter hereof and sUpersedes any and aJl prior agreements with respect to 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 fie 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 shafl be submitted to mediation prior to the institution of any other administrative or legal proceeding. (e) Severability. If any term. covenant. conditial or proviSion of this Agreement (or the application thereof to any circumstance or person) shal' be declared invalid or l618IlforceabIe to any extent by a court of competent jurisdiction. the remaining terms, covenantS. amditions and provisions of this Agreement. shaD 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 accompljshment of the original intent of this Agreement. The County and Grantee agree to reform the Agreement to repJac:e any stricken prOVision with a valid provision that comes as dose 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 pmceedng is initiated or defended by any party relative to the enforcement or interpretation of this Agreement. the prevailing party shall be entitled to reasonable attorneys fees, court costs, investigative. and out-of-pocket expenses, as an award against the noll-preVailing party. and shall include attorney's fees, auts costs, investigative, and out-of-pocket expenses in appellate pmceedngs_ Mediation proceedings 8 SEP-30-04 11,04 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 10/13 initiated and conduded 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) Aqudication of Disputes or Disagreements. County and Grantee agree that all disputes and disagreements shalf be attempted to be resolved by meet and confer sessions between representatives of ead1 of the parties. tf no resolution can be agreed upon within 30 days after the first meet and confer session. the issue or i&&ue& shaJl 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 CX' legal proceeding is instituted against either party reJating 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 arbitratian proceecings related to this Agreement 18. ETHICS CLAUSE: Grantee warrants that he has not employed, retained or otherwise had ad on his behalf any former County officer 01' employee in violation of Section 2 or Ordinance No. 10-1990 or any County oIficer 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 tenninate this agreement without liability and may also, at its discretion, deduct from the agreement or purchase price, or otherwise recover. tile full amount of any fee. commission, percentage, gift, or consideration paid to the former or present County officer or emplOyee. The County and Grantea warrant that. in respect to itself. it has neither employed nor retained any company or person. other than a bona fide employee working soi~ for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person. company. corpott:ItiQo, individual, or finn. other than a bona fide employee working solely for it, any fee. conmission, percentage. gift, Of other consideration contingent upon or resutti'l:l from the award or making of this Agreement For the breach IX 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 fuU atnou'rt of such fee, commission, percentage, gift, or consideration. (a) Covenant of No Interest. County and Grantee covenant that neither presently has any interest. and shaD not acquire any interest, which WOUld con1fict in any manner or degree WIth its performance under this Agreement, and that only interest of ~ is to perform and receive benefits as recited in this Agreement. (b) Code of Ethics. County agrees that ofIicers and employees of the County recognize and will be required to comply with the standards of conduct for public offlcers and employees as delineated in Section 112.313. Florida Statutes, mgarclng, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation: misuse 01 public position. confticting employment or contractual relationstWp; and disclosure or use of certain irtormation. 9 SEP-30-04 11,05 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 1 1/1 3 17. PUBLIC ENTITY CRIME STATEMENT: A person or affiliate who has been placed on the convicted vendor list following a conviction for pubiic entity crime may oot 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 c::onstn4dJon 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 8S a contractor, supplier, SlJb.contractor, or consultant under a agreement with 81y public entity, and may not transad 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 1he oonvicted 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 signatot'ie$ for the Grantee below certifies and warrants that the Grantee's name in this agreement is the full name as designated in its COrpcrate charter (if a corporation); they are empowered to ad and ca ~bact 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 federat, 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 broLght against the Grantee tot such. injuries to persons or danlage to property occurring dLmng the agreement or thereafter that resutts from performance by Gnnee of the obligations set forth in this agreement. At. all times during the leon of this agreement and for one year after acceptance of the project, Grantee shall maintain on file with the Grantor a certificate of the illQ'8nCe 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 at $5OOtOOO per occurrence for bodily injury, personal injury and property damage. 3. Comprehensive Auto Liability Insurance with minimum fimits of $300,000 combined single limit per occurrence. The Grantee, the Grantor and the TOC shail be named as additional insured, except workers COmpensation. The policies shalr provide no less than 30 days notice of cancellation, non- renewal or reduction of coverage. At ail times during the term of this asJ8ement and for one year after acooptance of the project, Grantee shall maintain on file with the Grantor a certificate of insurance showing that the aforesaid insurance coverage's are in effect. 21. NOTICE. Any written notice to be given to either party under this agreement or related hereto shalf be addressed and delivered as follows: 10 SEP-30-04 11,06 FROM.MONROE COUNTY ATTY OFFICE 10.3062823616 PAGE 12/13 For Grantee: Annalise Mannix-lachner. P.E. Manager, Engineering City d Key West 604 Simonton Street Key West, Florida 33040 For Grantor: Lynda Stuart Monroe County Tourist Development Council 1.201 White Street, Suite 102 Key West, FL 33040 and Suzanne Hutton, Assl County Attorney P.O. Box 1026 Key West, Fl33041-1026 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 CONSmUTIONAL OR STATUTORY DUTIES. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposect upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the perfonnance 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 Roode constitutian, state statute, and case law. 24. NON-RELIANCE BY NON-PART~ES. No person or entity shall be entiUed to rely upon the tenns, or any of them, of this Ac7eement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any servic9 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 othenvise indicate fhat any partiCUlar individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate am apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement.. 25. ATTESTATIONS. Grantee agrees to exeQJte such documents as the Cotmty may reasonably require. to incfude 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 eX Monroe County in his or her individual capacity, and no member, officer, agent or employee of 11 SEP-30-04 11,08 FROM,MONROE COUNTY ATTV OFFICE ID'3052923518 PAGE 1 3/1 3 Monroe County shall be liable personally C)fl this Agreement or be subject to any personal liability ex accountability by reason of the execution of this Agreement. 27. FORCE MAJEURE. The Grant88 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, induding war or act of war whether an actual decfaration thereof is made or not, act of terrorism impacting traveJ in the United States. insurrection, riot or civil commotion, act d 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 8 safe manner ex any act of any governmental authority which prohibits the project from proceeding as desaibed in the scope of services and incorporated references and which the Grantee has exercised reasonable care in the prevention thereof. However, I~ of planning for nannal and expected weather conditions for the time of year the project is to be executed shall not constitute an ad of God excusing a deJay. Any delay or failure due to the causes stated shall not constitute a breach of the Agreement; however. the SOCC shall have the right to determine if there will be any' re<1lction to the amount of funds due to the Grantee after consideration of all relevant facts and circumstances surrounding the delay in pert'ormance or failure to complete the project within the conhi:lct period. Upon demand of TOe 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 nwnber of counterparts. each of which shall be regarded as an original, aU 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 oounterpart. 29. SECTION HEADINGS. Section headings have been inserted in this Agreement as a matter of convenience of reference only, a'ld it is agreed that &uch section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. IN WrrNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first above written. (SEAL) ATTEST: DANNYl.KOLHAGE,CLERK By: Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: . "', _ .~.~. . .__.. ..~., Mayor/Chairman ,..~.,,-;v.;; l".,,_.;.., .. ,'~l ,. .. ~~ CITY OF KEY WEST ).;1, m,>: ~~,<pJ~~"" (SEAL) A lTEST: By:~ Clerk By: Mayor 12 ') I ) 6\J.~//J;T ,1 I I I I I j J J J I PART V: PROJECT BUDGET AND TIMETABLE - ALL PROJECTS 1. Cost Estimates: List all major work items and the estimated costs of each. If the project is phased, segregate clearly those costs for the phase to be assisted by the TDC funds requested. All phases and total estimated cost of the entire project must be listed here. Phase I: Construction: Total cost of phase/project for which funds are requested: (not to exceed 50% of the total project cost: a)Phase b ) Project 1 J254.000 Percentage of TOC funds requested of Total Budget: (not to exceed 50% of the total project cost) a)Phase b) Project 1 50% ($127.000) 2. Confirmation that signed, sealed bid process was utilized for acquiring architectural services, or that project does not require architectural services. Design development has been performed by the City Engineering Department Construction will be bid out to a private contractor. 3. Matching Funds. List the sources and amounts of confirmed matching funds. (For items involving personnel, include the number of hours to be spent on the project activities and their per-hour value). These funds must not be expended before execution of a Capital Project Agreement. Prior donated services or expenditures are not acceptable as match for grant funds. No more than fifty (50%) percent of matching funds or twenty-five (25%) percent of the total project shall be in-kind services. a) Hard-dollar '127.000 City of Kev West Infrastructure Fund Budaet b) In-Kind (50%) limit: I / -/ I I I 1 J J 1 I ) ') .. e) f) g) h) Please indicate any critical dates and explain why they are critical. 4. What is the total project cost: $ 254.000 5. Length of time for project completion (months and year(s): ~ months ( .. # EXHIBIT B PROPERTY REPORTING FORM FOR TDC CAPITAL PROJECT GRANT AWARD. GRANTEE: List non-expendable equipment/personal property (not including software) costing $1,000 or more and purchased under the above Contract. Complete the serial number, cost, location, address, and control number assigned to item by Grantee in appropriate columns of this form. The Grantee shall establish a unique identifier for tracking all personal property, and shall provide access to said property by the TDC, BOeC, or any agents thereof, or the State Controller, upon request. DESCRIPTION SERIAL NO./COST LOCA nON/ADDRESS GRANTEE ASSIGNED CONTROL NUMBER Attach copy of invoice, bill of sale, or other documentation to support purchase. GRANTEE: Signed by Grantee's Project Manager: DATE: