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Item D09 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20. 2004 Division: TDC Bulk Item: Yes ~ No Department: AGENDA ITEM WORDING: Approval of an Agreement with Dolphin Research Center, Inc. for the renovation of existing waterfall, rebuild pond area with landscape boulders and pladS & install pumps to operate system in an amount not to exceed $25,000, DAC III, FY 2005, Capital Resources ITEM BACKGROUND: DAC III approved recommendation at their meeting of August 11, 2004, TDC approved same at their meeting of August 25, 2004 PREVIOUS REVELANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: New agreement STAFF RECOMMENDATIONS: Approval TOTAL COST: $25,000 BUDGETED: Yes --X- No COST TO COUNTY: $25.000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes -X- No AMOUNTPERMONTH_ Year APPROVED BY: County Atty --K- OMB. /P/J:"'ururc~ha .>>..;2 Ri~anagement-L ~ / /~~-/L----t/ Lynda M. Stuart DIVISION DIRECTOR APPROVAL: DOCUMENTATION: Included X ToFollow_ NotRequired_ AGENDA ITEM #0 - q DISPOSITION: Revised 2/27/01 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Dolphin Research Center Contract # - Effective Date: 10/1/04 Expiration Date: 9/30/05 Contract Purpose/Description: Approval of a capital grants agreement with the Dolphin Research Center, Inc. to renovate the existing waterfall, rebuild pond area with landscape boulders and plants and install pumps to operate the system. DRC has confirmed 100% hard dollar match for the project Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext.) (Department/Stop #) for BOCC meeting on 10/20/04 Agenda Deadline: 10/5/04 CONTRACT COSTS Total Dollar Value of Contract: $ $25,000 Budgeted? YeslZl No D Account Codes: Grant: $ $25,000 County Match: $ Current Year Portion: $ $25,000 ,~f~ / 119-79040- T59M-535X-530340 ADDITIONAL COSTS Estimated Ongoing Costs: $_/yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) - - --- CONTRACT REVIEW cf~te };1... Division Director /~/ Risk Management {()5-oQ YesD NoLa- O.M.B./Purchasing /0/4/01 Y esD NO~ County Attorney ~ YesD No~ Changes Needed~ YesD No~ _ Date Out , -5-(j(/ S.Hutton Comments: SEP-30-04 11,08 FROM,MONROE COUNTY ATTY OFFICE 10,305282351B PAGE 2/14 Grant Award Aarvement This AGREEMENT dated the day of 200 . is entered into by and between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, hereinafter .COUntY' or IoGRANTOR." on behalf of the TOURIST DEVELOPMENT COUNCIL. hereinafter --roC- and DOLPHIN RESEARCH CENTER, INC., a not-for-profrt corporation, hereinafter "Grantee". WHEREAS. the third penny of Tourist Development Tax may be used to acquire, oonstruct, extend. enlarge, remodel, repair or improve. convention centers, sports stadiums. sports arenas. coliseums, auditoriums, fishing piers. museums. zoological parks. nature centers and beaches which are publicly owned and operated or owned and operated by not-for-profit corporations, and WHEREAS. Grantee owns and operates a zoological park open to the public: and WHEREAS. Grantee has applied for funding for the Waterfall & Pond Renovation projeCt to restore the waterfaU and pOnd originally constructed in 1972; and WHEREAS. the Grantor and TDC have determined that it is in the best interest of the County, for purposes of promoting tourism and preserving the heritage eX the commut'Jity. to improve. repair and rehabilitate the property for use as a nature center open to the ptbIic; I NOW. THEREFORE. in consideration of the mutual covenants and payments oontained herein, the Grantee and the Grantor have entered into this agreement on the terms and conditions as set forth below- 1. GRANT AGREEMENT PERIOD. This agreement i$ for the period October 1. 2004 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 parB9"sphs 7, 12 and 13 belOw. 2. SCOPE OF AGREEMENT. The Grantee shall provide digging of pond where previously fitled. strip the existing pump room, rebuild the waterfall and pond including boulders, install and hook up a new pump system and landscape. as desaibed in the funding application. AU work for which grant funds are to be expended must be oompleted by the stated termination date and all invoices pertaining to said project shall be submitted to. the Finance Department of Monroe County no later than September 30, 2005 to be considered for reimbursement a) There :ttafl be a project manager to acknowledge receipt of goods or work performed. This Project Manager shall be Armando (Mandy) Rodriguez. Exeartive VICe President. Dolphin Research Center. whose address and phone number are 58901 Overti888 Highway, Grassy Key. Fl. 330500. and 305-743-76227. Should there be a change in the project manager specified in the Grantee's application. a 5EP-30-04 11,08 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 3/14 new project manager shall be designated and notice of the designation shall be provided to TOe/County. b) If. and to the extent that. Grantee contracts for any of the work funded under this agreement to be performed or completed, Grantee shan give notice to County of the contractual relationship. provide County with a copy of any and an contracts and shall require the contractor(s) to comply with all the terms of this contract. Should grantee a)I'ltrad the work and then deaease the scope of work to be performed by a contractor, Grantee shall provide County with an amended contract executed by Grantee and its contractor. c) Grantee shall exercise good internal oontroIs to assure that the project as desctibed in the funding application shall be completed on a timely basis within the proposed budget and shall provide to County any certifications, including those by the architect, engineer, contractor or an independent consultant if necessary, required to estabrlSh that materials which are purported to be applied to the project are in fad so applied. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $25,000 for materials and services used to improve. rehabilitate. repair and renovate the property_ The Board of County Commissioners and the Tourist Development Council assume no rtability to fund this agreement for an amount in excess of this award. Monroe Countys performance and obligation to pay under this agreement is contingent upon an annuaf appropriation by the BOCC_ a) Payment for expenditures permissible by law and County policies shall be made through reimbursement to Grantee upon presentation of Application for Payment Summary - AlA Document G702, invoices. canceted checks and other documentation necessary to support a claim for reimbursement Included in said doa.rnentation shal be proof that the Grantee has received and appfted to the property matching funds equivalent to or greater than the amount invoiced to the Grantor. The application for payment doaJment must be certified through a statement signed by an officer of the organization and notarized, declaring that representations in the invoice are true and factual. Grantee shall also provide partiaj releases of liens or certifications of non--lien if applicable. Grantor Shall retain 10% of any payment on work in progress until the Grantee has provided a Final Refease of lien for each vendor/Contractor for whom payment is requested. Final payment will not be made until the foUowing dowments are complete and submitted to the Grantor. AlA Document G-702 Application for Payment Summary AJA Document G-704 Certificate of Substantial Completion AlA Document G-706 Contrado(s Affidavit d Debts & Ctaims AlA DOQJrnent G-706A Contractor's Affidavit of Release of Liens AlA Document G-707 Consent of Surety to Final Payment FinaJ Release of lien Affidavit and Partial Release of Uen 2 SEP-30-04 11,08 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 4/14 AU payment requests must be submitted no later than the completion or project of September 30, 2005. Invoices received after September 30, 2005 will not be considered for reimbursement. b) Grantee may elect to have vendors and contractors paid through the direct vendor method, upon submission of appropriate documentation as outfined above and a speciffc request that payment be made directly to the vendor or contractor rather than to Grantee. c) Application of matching funds requires actual payment of the matdling funds, or. in the alternative, a commitment of said funds and that the portion of the project for whic::h the matching funds are to be used has been sufficiently completed to require payment of said matching funds. Mere obligation through execution of a contract or approval of a budget item to be paid from matching funds will not suffice. d) Documentation shall be submitted to the TOC Administrative Office to show the receipt and application of in-kind donations of goods, professional serviC2$. and materials. Said doaJmentation should include invoices. bills of lading, etc., and be verified as received and applied to the project through a notarized statement of the project architect.. engineer. genera! contractor or project manager. The receipt and application to the project of volunteer rabor are to be documented and verified by notarized signature of the project architect, engineer, general contractor or project manager. and said documentation submitted to the mc Administrative Office. All submissions shall identify the items induded in the schedule of values attached hereto and inoorporated herein as Exhibit A which are sought to be reimbursed and shall indicate the percentage of completion of the overall project as of the submission. This doaJment should be signed by the project arChitect, engineer, general contractor or project manager. Photographs showing progress on project shall be included in any payment request The Project manager shaD certify delivery to the project site and installation 1herein of any goods or services provided other than through an architect, engineer or contractor. All work perfonned and goods received on site and incorporated into the project shall be verified by one of the foregoing. e) Grantee must submit all documentation for final payment on or before the termination date of this grant of September 30, 2005. Invoices received after September 30, 2005 will not be considered for payment. f) At any time that the doaJmentation requirement policies of Monroe County are revised, Grantee shall comply thereafter with such ioa-eased requirements, or further funding under the agreement may be terminated by County. g) Upon sua:888ful 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 complete and sign a Property Reporting Form for personal property and forWard said completed form with the appropriate invoice to the TOC Administrative Office. Real property acquired or improved through funding under this agreement shalf remain dedicated for the 3 SEP-30-04 11,08 FROM,MONROE COUNTY ATTV OFFICE 10,3052823516 PAGE 5/14 purposes set forth herein or for other purposes whidl promote tourism and retain ownership of said property in the Grantee. The following terms shall apply: (il The Grantee shall have the U$& of the equipment and other personal property at the project site for so long a6 the facility is operated by Grantee, open to the public. and has a primary purpose of promoting tourism. (ii) At such time as any of the conditions in sub-paragraph (I) above cease to exist, the Grantee shall transfer ownership and possession of equipment and personal property to a/another not-for1JrOfit organization which is a facility for which tourist development taxes may be used pursuant to Florida Statute; and refund to the County the amount of Tourist Development funding received for the real property phases of the project at such time that the Grantee demolishes the project facili1y or divests itself of ownership or possession of the real property, or the use of the property no longer has a primary purpose of promoting tourism. This provision shall survive the tennination date of all other provisions of this contract for a period of ten years. Should the demolition, transfer of ownership, or change to a non-tourist related purpose occur after the facility has been used for tourist;-elatEK1 purposes for at least three (3) years, the amount of refund shall be pro..rated based on 8 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 purchased through funding under this Agreement 4. RECORDS AND REPORTS. The Grantee Shall provide financial reports in summary of activity on forms provided or approved by the TDC, and quarterty narrative reports of activity under the approved work plan. The Grantee shall keep such records 85 are necessary to document the performance of the agreement and expenses as inClU'Ted. 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. It is the responsibility of the Grantee to maintain appropriate records in accordance with generatly accepted accounting principles consistently applied to insure 8 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 !he 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 aualt exception. In the event the grant is ~ renewed or supplemented in Mure years. the Grantee will be billed by the Grantqr for the amount of the audit exception and shall promptly repay any audit exception./ (a) Public Access. The County. ~ Grantee shall allow and permit reasonable access to, and inspection of, all ~ents, papers, letters or other materials in its possession or under its controt 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 shalt have the right to unilaterally cancel this Agreement upon violation of this proviSion by Grantee. 4 SEP-30-04 11,08 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 8/14 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 85 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 entitted to none of the rights, privileges or benefits of employees of Monroe County. (a) No Personal Liability. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity. and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution d 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 regtJlating the provisions rI this agreement. induding those rlO\N in affect and hereafter adopted. Any violation of said statutes, ordinances, rules or regutations shall constitute a material bread1 of this agreement and shalf entitte 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 shari include in all agreements fUnded under this agreement the following terms: a) Anti-disaimination. Contractor agrees that they wiU 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 d an individual to perform in a position d employment. and to abide by all federal and state laws regarding non-disaimination. b) Anti-kickback. Contractor warrants that no person has been employed or retained to solicit or seaJre 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 contrador. For breach or violation d this warranty. the COIltJador shall have the right to annul this agreement without Uabi'ity Of. in ;ts disaetion. to deduct from the agreement price ex consideration. the fUU amount of such commission, peramtage, brokerage or contingent fee. Contrador acknowledges that it is aware th;lt funding for this s SEP-30-04 11,10 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516 PAGE 7/14 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 acknowfedges 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, litigatio", cawes of action. damages, costs, expenses (induding but not limited to fees and expenses arising from any factual investigation, discovery or prepanrtion for litigation), and the payment of any and aU of the foregoing or any demands, settlements or judgments (collectively claims) arising directly or indnctly 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 oooperate with the Cculty in the investigation arising as a result of any suit, action or claim related this agreement. d) Insurance. Contrador 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 Contractcr 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 ooe year after acceptance of the project, Contractor shaU maintain on file with the County a certificate of the insurance of the carriers $hawing 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 Ir1suranat with minimum limits of $500,000 per oca..wrence for bodily injury, personal injury and property damage- 3. Comprehensive Auto Uabitity Insurance with minimum limits of $300,000 combined single 'imit per occurrence. The Contractor, the County and the TOC 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 tenn 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) Lic8n5ing and Permits. Contractor warrants that it shall have, prior to commencement of work under this agreement and at all times during said worI<. all required licenses and permits whether federa', state. County or City. f) Right to Audit. The Contractor shall keep such records as are necessary to document the performance of the agreement and expenses as incurred, and give 6 SEP-30-04 11,10 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 8/14 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 BOCCIfOC and any of its officers and employees from and against any and all daims. liabilities. litigation. causes of action, damages, costs. expenses (induding 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 at1y demands. settfements or judgments arising directty or indirectJy 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 asJ"eemenia and will cooperate with the Grantor in the investigation ariSing as a result of any sui~ action or claim related to this agreement. (a) Non-Waiver of Immunity. Notwi1hstanding he provisions of See. 286.28. FIOOda Statutes. the participation of the County and the Grantee in this Agreement and the acquisition of any commercial liability insurance coverage, self-inslM1lt'lCe coverage. or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shafI 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' oompensation. ana 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 shaD apply to the same degree and extent to the performance of SUdl 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 disaimination 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 ai' Federal and Aorida statutes, and all local ordinances. as applicable, relating to nondisaimination. These indude but are not limited to: 1) Title VI of the Civil Rights AJ:;t of 1964 (Pl 88-352) which prohibits disaimination on the basis of race. color or national origin; 2) Tdle IX of the Education Amendment of 1972. as amended (20 use 5$- 1681-1683. and 1E)85..1686). which prohibits discrimination on the basis of sex: 3) Section 504 of the Rehabilitation Ad of 1973. as amended (20 use s. 794). which prohibits discrimination on the basis c:A handicaps: 4) The Age Discrimination Aa of 1975, as amended (42 use 55. 6101-6107) which prohibits disaimination on the basis of age; 5) The Drug Abuse Office and Treatment Ad. Of 1972 (PL 92-255). as amended. relating to nondisaimination on the basis of drug abuse; 6) The Comprehensive Afcohol Abuse and Alcoholism Prevention. Treatment and Rehabilitation A/:;t of 1970 CPl 91-616). as amended. relating to nondisaimination on the baSis Of alcohol abuse or alcoholism; 7) The Public Heatth Service Ad of 1912, ss. 523 and 527 (42 use as. 69Odd-3 and 290ee--3), as 7 SEP-30-04 11,11 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 8/14 amended, relating to confidentiality of alCOhol and drug abuse patent records; 8) Title VIII of the Civil Rights Ad of 1968 (42 use s. at seq.). as amended. relating to nondisaimination in 1he sale. rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 use s. 1201 Note). as maybe amended from time to time, relating to nondisaimination 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 COtrty or TOe has any interest. frnanciaUy or Otherwise, .in the said fmded project. except for general membership_ For breach or viaatioo 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 a~ shall terminate on September 30. 2005. Tennination prior thereto shall occur whenever funds cannot be obtained or cannot be cantinued at a level sufficient to allow for the continuation of this agreement pursuant to the terms herein. In the event that funds calnot be continued at a level sufficient to allow the continuation of this agreement plnU8nt to the terms specified herein. this agreement may then be tenninated immediatety 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 obftgated to pay for any serviCes or goods provided by Grantee after Grantee has received written notice of tennination 13. TERMIHAnON FOR BREACH_ The Grantor may immediately terminate 1his agreement for any breaCh of the terms contained herem. Such termination shaff take pface immediately upon receipt of written notice eX said termination. Any waiver of any breach of covenants herein contained to be ~pt and performed by Grantee shall not be deemed or considered as a continuing waiver and shall not operate to bar or prevent the Grantor from declaring a forfeiture for any succeedi~ breach either of the same conditions or of any other mnditions. Failure to provide Grantor with certification of use of matching ~ or matching in-kind services at or above the rate of request far reimbufsement or payment by is a breach of agreement. for whidl the Grantor may terminate tIlis agreement upon giving written notification of tenninatioo. 14. ENTIRE AGREEMENT. This agreement consti1utes the emre qeement of the parties hereto with respect to the subject matter hereof and SLpersedes 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. 8 SEP-30-04 11,11 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516 PAGE 10/14 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 witt [18 in the appropriate court or before the appropriate administrative body in Monroe County. Florida (b) Mediation. The County and Grantee agree that. in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of an~ other administrative or legal proceeding. (e) Severability. If any term~ covenant. condition or provision of this Agreement (or the application thereof to a1y circumstance or person) shall be declared invalid or Lnmforc8abIe to any extent by a court of oompetent jurisdiction, the remaining terms. coveoants, 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 shatl be enforceable to the fullest extent permitted by taw unless the eRor'cement of the remaining terms. covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent a this Agreement. The County and Grantee agree to reform the Agreement to replace any s1ricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. (d) Attorney's Fees and Costs. The County and Grantee agee that in the event any cause of aetion a administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this AgJeement. 1he prewiling party shall be entitled to reasonabJe attorneys fees, court ~ investigative. and out-d- pocket QpenSeSa as an award against the non-preyaifing party, and shall include attorneys fees. COUrts coat$. ~ve. anq 0Yt-Q{~~ ~n,=annP-Il_A . proceedifGS. Mediation proceedings initiated and ~~~~.... Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. (e) ~ication of Disputes or Disagreements. County and Grantee agrge that all disputes and disagreements shail be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resotution can be agreed upon within 30 days after the first meet and confer session. the issue or issues shaN be discussed at a public meeting of the Board of County Cornmissioners_ If the .issue or iSSU8$ are $tin not resolved to the satisfaction of the partiq. then any party shalf have the right 10 seek such relief or remedy as may be provided by this Agreement or by Florida law. (t) Coopefation- In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, perfonnance. or breach of this Agreement, County and Grantee agree to participate, to the extent required by the other party. in aU proceedings. hearings. processes, meetings, and other activities 9 SEP-30-04 11,12 FROM,MONROE COUNTY ATTY OFFICE 10,3052823618 PAGE 11/14 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 a1)I arbitration proceedings ~ated 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 Ordnance No. 10-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 1()..1990. For breach or violation at the provision the Grantor may, at its discretion terminate this agreement without liability and may also, at its disaetion. deduct from the agreement or purchase price, or otherwise recover, the fuR amount of any fee. commission, percentage, gift. or consideration paid to the former or present County officer or employee. The County and Grantee wamn that, in respect to itself, it has neither employed t1()f. retained any oompany or person, other than a bona fide employee working solely for it, to soticit or sean 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 worlcing solely for it, any fee, commission. percentage. gift. or other consideration contingent upon or resulting from the award or making lot this Agreement. For the breach or violation of the provision, the Grantee agrees that the County shaU have the right to terminate this Agreement without liability ~ at its discretion. to offset from monies owed. or otherwise recover. the full ~ of such fee. commission. percentage. gifla or consideration. I (a) Covenant of No Interest. Ccurty and Grantee covenant that neither presently has any interest. and shall not acquire any interest, whjc;h ~&Q c;qpfIict jQ c ~y manner or degree with its performance under this Agreement. and that only interest of each is to perfonn and receive benefits as recited in this Agreement. (b) Code of Ethics. COlriy agrees that officers and employees of the County recognize and wiD be required to ~ with the sta1dards of conduct for public ot'fioors 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: lRIUthorized compensation; misuse of public position, conflicting empJoyment or contractual relationship; and disclosure or use of certain information. 17. PUBUC ENTITY CRIME STATEMENT: A person or aftiIiate who has been placed on the convicted vendor list following a conviction for public enti1y aime 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 publJc entity for the construction 01 repair of a public building or pubtic 'Mlfk. 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 ~ under a agreement with any public entity, and may not transact business with any public entity in excess of the ttveshold amount provided in Section 215l.017. for CATEGORY TWO for a period d 36 months from the date of being Paced on the convicted vendor list. 18. AUTHORITY: Grantee warrants that it is authorized by law to engage in 1he performance of the activities encompassed by the project herein described. Each of the signatories for the Grantee bekJw oertifies and warrants that the Grantee.s name 10 SEP-30-04 11,12 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516 PAGE 12/14 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 aU times during said work. all required licenses and permits whether federal. state. County or City. 20. INSURANCE: Grantee agr~ that it maintakls in foroe at its own expense a liability insurance policy which wiD insure and indemnify the Grantee and the Grantor from any suits. claims or actions brought by any person or persons and from all coats and expenses of litigation brought against the Grantee for such injuries to persons or damage to property occurring during the cveement or thereafter Ulat resufts from performance by Grantee of the obligations set forth in this agreement At. all times during the term of this agreement and for one year after acceptance eX the project. Grantee shall maintain on file with the Grantor a celtifacate of the insurance of the caniers showing that the afaesaid insnnce poficy is in effect. The following coverage's shafl 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, pe~ injury and property damage_ 3. Comprehensive Auto ~Iity Insurance with minimum limits of $300.000 combined single limit per occurrence. The Grantee. the Grantor and the TOC shall be named as additionaJ insured, except workers compensation. The policies shall provide no less than 30 days notice of cancellation. non-renewaJ or reduction of coverage. At all times during the term of this agreement and for me year after &caJptance of the project. Grantee shalt maintain on file with the Grantor a certificate of insurance showing that the afore$Sid insurance coverage's are in effect 21. NOTICE. Any \Witten notice to be given to either party t.I1der this agreement or reJated hereto shall be addressed and delivered 8$ fo~: For Grantee: Mr. Armando Rodriquez Executive Vice President Dolphin Research Center. Inc. 58901 Overseas Hi!ttway Grassy Key, Florida 33040 For Grantor: Lynda Stuart Monroe County Touis! Devefopment Council 1201 V\lhite Street. Suite 102 Key West. Fl 33040 11 SEP-30-04 11,13 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516 PAGE 13/14 and Suzanne Hutton, Asst. County Attorney P.O. Box 1026 Key West. FL 33041-1026 22- CLAIMS FOR FEDERAl OR STATE AID. Contractor and County agree that each shall be, and is, empowered to apply for, seek. and obtain federal and state funds to further the purpose of this Agreement; provided that all apptications. requests.. grant proposals. and funcfing solicitations shall be approved by each party prior to submission. 23- NON-DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES. This Agreement is not intended to. nor shaJl it be construed as. relieving any participating entiy 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 shan it be construed 8$. authorizing the delegation of the constitutional or statutory duties of the County. except to the extent permitted by the Aorida oonstitution. state statute, and case law. 24. NON-RELlANCE BY NON-PARTIES. No person or entity shalf be entitled to rely upon the tenns, or any of them. of this Agreement to enforce or attempt to enforce any fhird..party daim or entitlement 10 or benefit of any service or pnvam contemplated hereunder. and the County and the Grantee agree that neither the County nor the Grantee or any agen~ officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or (J'OUP of indivic:kIaIs. entity or entities, have entitiemenls or benefits under this Agreement separate and apart, inferior to. or superior to the CXlI'Dmunity in general or for the purposes contemplated in this Agreement 25. ATTEST A TrONS. Grantee agrees to execute such documents as the County may reasonably require, to incJude a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free WorkpIaoo Statement 26- NO PERSONAl LIABILITY. No covenant or agreement contained herein shaJl be deemed to be a covenant or agreement of any member. officer. agent or employee of Monroe County in his or her indivicbaJ 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 exea.Jtion d this Agreement. 27. FORCE MAJEURE. The Grantee shall not be liable for delay in performance or failure to complete the project. in whole ex in part. due to the occurrence of any contingency beyond its eudtd or the contn:d Of its COtlttadOfs and subeord1adors. including war or act of war whether an actuat declaration thereof is made or not. act of terrorism impacting travel in the United States, insl.nection. riot or Qvif commotion, act of public enemy. epidemic, quarantine restriction. storm, flOOd, drought or other 12 SEP-30-04 11,13 FROM,MONROE COUNTY ATTY OFFICE 10,3052823518 PAGE 14/14 act of God, or act of nature (induding 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 descnbed in the scope of services and incorporated references and which the Grantee has exercised reasonablecara-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 shan 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 comptete the project within the contract period. Upon demand of TOC or BOCC, the Gtantee must furnish evidence of the ca IS8S of such delay or faiJure_ HOCC shall not pay for any goods received or services provided after the date{s) desaibed in paragraph 1 and Scope of Services. 28- EXECUTION IN COUNTERPARTS. This Agreement may be executed .n any number fA counterparts, each of which shall be regarded as an original, all of which taken together shall ~e one and the same instn.ment and any of the parties hereto may exeaJte this Agreement by singing any such counterpart. 29. SECTION HEADINGS. Section headings have been inserted in this Agreement as a matter d convenience d 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 d this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be exeaJted the day and year first above written. (SEAL) BOARD OF COUNTY COMMISSIONERS A TIEST: DANNY L KOlHAGE. CLERK OF MONROE COUNTY, FLORIDA By: By: Deputy Clerk Mayor/Chairman (SEAL) DOLPHIN RESEARCH CENTER. INC_ ATTEST: By: By: Secretary President 13 ( ( Also, list any specific factors or problems, which contribute to the present condition of the property. Existina structure is in a state of disreoair and it detracts from the surrounding environment. 9 List and describe all major work items included in the proposed project: 1) Dia oond: 2) Strio existina oumo room: 3) Rebuild waterfall and oond. includina boulders: 4) Install and hook-uo new oumo svstem: 5) landscaoe area. 10. Status of Project Planning: 11. not yet initiated Initiated schematics complete design development documents complete construction documents complete x Name and Address of project consultant (architect, engineer, contractor, etc.): Thomas Blodaett Enchanted Creations ~O. Box 9466 Tavernier. Fl 33070 Enclose planning or architectural documents completed to date (1 set). 12. Has a contract for architectural services or constructional services been executed? If so, indicate the scope of services to be provided under this contract and whether these services were obtained through competitive negotiations, requests for bids or other process. . No 13. Describe the means by which the structure(s) affected by this project will be maintained subsequent to restorationlrehabilitation. Include sources and estimated amounts of funding for such maintenance. It is the County's policy not to fund operations and maintenance costs of organizations notwithstanding any tourism promotional value of a project. ORe Environmental Services Staff will be resoonsible for aeneral maintenance and reoairs. Fundina for maintenance and reoairs will be orovided throuah eneral su ort donations from our member and donor base and DRC ro ram fees and admissions. 21 r ~ ~x.IJ/b,~ ~ 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 TOC funds requested. All phases and total estimated cost of the entire project must be listed here. Renovate waterfall. rebuild oond and landscape immediate surroundin~ area will cost $50.000 _ Total cost of phase/project for which funds are requested: (not to exceed 50% of the total project cost: a)Phase b )Project $25.000 $25.000 Percentage of TOC funds requested of Total Budget: (not to exceed 50% of the total project cost) a )Phase 50% b )Project 50% 2. Confirmation that signed, sealed bid process was utilized for acquiring architectural services, or that project does not require architectural services. N/A 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: Felix Jarczvk - $20.000 in-hand; ORe Members - $5.000 in- hand - see attachment item (f) b) In-Kind (50%) limit: NOT APPLICABLE Total confirmed matching Hard-dollar funds: $25.000 NOT APPLICABLE Total confirmed matching In-kind funds: This amount should equal or exceed TOC Funds requested. 22 (' ( Proiected in-kind services and aoods shall be allocated the followina values. subiect to neQotiation with TDC/County. List here all such anticipated values: NOT APPLICABLE 4. Outline of expansion opportunity for acquiring further match grants. ORe's development staff will be aaaressivelv fundraisina for this proiect with our existina and new donors. 23 ( I 3. Tentative timetable. Indicate all major project activities and the anticipated time required to complete each stage of the project on the graph below. Project Timetable (in months) Proiect Activity 1 2 3 4 5 ~ r .... Li. . I!' ~ ~ __ _ F"'_" b) Con~.~terJaD & pond; Hoole up. pumps. , c) d) e) f) g) h) Please indicate any critical dates and explain why they are critical. NONE 4. What is the total project cost: $ $50.000 5. Length of time for project completion (months and year(s): 4 months 24 EXHIBIT B PROPERTY REPORTING FORM FOR Toe 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 fonn. The Grantee shall establish a unique identifier for tracking all personal property, and shall provide access to said property by the TDC, BOCC, or any agents thereof, or the State Controller, upon request. DESCRIPTION SERIAL NO./COST LOCA TION/ 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: