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Item G07 t BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY ( Meeting Date:~OVeHm.,~004 Division: TDC Bulk Item: Yes..1l..... No Department: AGENDA ITEM WORDING: Approval of an Agreement the City of Marathon for the design and construction of a Birdair architectural tensile membrane structure amphitheatre with climate controlled storage/dressing rooms, lighting, sound and a minimum of 2000 sq. ft. stage area contingent upon the City of Marathon providing three additional sets of bleachers upon the completion of the project in an amount not to exceed $250,000, FY 2005, DAC III, 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: $250,000 BUDGETED: Yes ---X- No COST TO COUNTY: $250.000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes .X- No AMOUNT PER MONTH Year APPROVED BY: County Atty.-.X- OMB~ri~nt _X DIVISION DIRECTOR APPROVAL: ~ / /' ..4 Lynda M. Stuart DOCUMENT ATION: Included X To Follow_ Not Required_ AGENDA ITEM # c;- r,_ DISPOSITION: Revised 2/27/01 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS ( CONTRACT SUMMARY City of Marathon Contract #_ Effective Date: Expiration Date: 10/1/04 9/30/05 Contract with: Contract Purpose/Description: Approval of a capital grants agreement with the City of Marathon for the design and construction of a Birdair architectural tensile membrane structure amphitheatre with climate controlled storage/dressing rooms, lighting, sound and a minimum of2000 sq. ft. stage area contingent upon the City of Marathon providing three additional sets of bleachers upon the completion of the project in an amount not to exceed $250,000, FY 2005, DAC ill, Capital Resources Contract Manager: Maxine Pacini (Name) for BOCC meeting on Ll J I Y , 0"-'" TDC # 3 (Department/Stop #) Agenda Deadline: It / '1,,' otr 3523 (Ext. ) CONTRACT COSTS Total Dollar Value of Contract: $ $250,000 Current Year Portion: $ $250,000 Budgeted? Yes[8J No 0 Account Codes: Grant: $ $250,000 County Match: $ 119-79040-530340 - T59M 467X-530340 - - --- ADDITIONAL COSTS Estimated Ongoing Costs: $----1yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW 1!te ~:~~ Division Director ~ YesD NoE1 Risk Management ~iJ{ YesO NoE] O.M.B./Purchasing YesO No County Attomey # YesDNo~ Comments: l a~~ S.Hutton NOV-01-04 11.47 FROM:MONROE COUNTY ATTY OFFICE 10:3052823516 PAGE 13/25 Grant Award Aareement This I terlocal AGREEMENT dated the day of 200 . is entered into by an between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUN~~ hereinafter "County" or lIGRANTOR," on behalf of the TOURIST DEVEL9PMENT COUNCIL, hereinafter "TOC" and CITY OF MARATHON, a munTiPal corporation, hereinafter "Grantee". WH REAS, the third penny of Tourist Development Tax may be used to acquire, con truct, extend, enlarge, remodel, repair or improve, convention centers, sports stad urns, sports arenas, coliseums, auditoriums, fishing piers, museums, zoological parks, nature centers and beaches which are publicly owned and operated or own d and operated by not-for-profit corporations, and WHERr.AS, Grantee has included operations and maintenance costs of the facility in lits annual budget; and WHER,AS, Grantee owns and operates the Marathon Community Park; and WHE~EAS, Grantee has applied for funding for the Coliseum at Marathon Community Park her1inafter "the Property"; and WHE~~AS, the District Advisory Committee (DAC III) and TOe recommend funding of the project as an amphitheater; and WHE~EAS. the Grantor and TDC have determined that it is in the best interest of the County, for putposes of promoting tourism and preserving the heritage of the community, to improve, repair an~ rehabilitate the property for use as an amphitheater open to the public; NOW~ THEREFORE, in consideration of the mutual covenants and payments contained herein. th Grantee and the Grantor have entered into this agreement on the terms and conditions as set forth below. I 1. GRANT AGR~EMENT PERIOD. This agreement is for the period October 1. 2004 through September ~O, 2005. This agreement shall remain in effect for the stated period unless one party gires to the other written notification of termination pursuant to and in compliance with para~raPhs 7,12 and 13 below. 2. SCOPE OF GREEMENT. The Grantee shall provide design and construction of an amphitheater consist ng of a Birdair architectural tensile membrane structure amphitheater with climate controlled st rageJdressing rooms, lighting, sound, and a minimum 2,000 square foot stage area, as desc ibed in the funding application, and four pads for wheelchair handicap seating and portable bleachers to provide seating for amphitheater as well as other park events as described in the q;rantee's Project Managers undated letter regarding response to July 26, 2004. request for injrmation and addressed to the Tourist development Council. All work for I I I I. I NOV-01-04 11.47 FROM.MONROE COUNTY ATTY OFFICE 10.3052923516 PAGE 14/25 which grant funds a e to be expended must be completed by the stated termination date of September 30, 2005 and all invoices pertaining to this project shall be submitted to the Finance Department of Mon e County no later than September 30, 2005 to be considered for payment. unless pursuant to circumstances noted in paragraph 26, a contract amendment duly executed by both 1rties Is entered all_ing an extension of the contract term.. a) There shall b~ a project manager to acknowledge receipt of goods or work perfonned. This Project Manag~r shall be Susie Thomas, City of Marathon, whose address and phone number are 10045-5i5 Overseas Highway, Marathon, FI. 33050, and 305-743-0033. Should there be a change inl the project manager specified in the Grantee's application, a new project manager shall be de ignated and notice of the designation shall be provided to TOC/County. b) If, and to the extent that, Grantee contracts for any of the work funded under this agreement to be pe~ rmed or completed, Grantee shall give notice to County of the contractual relationship, provide i County with a copy of the contract and shall require the contractor to comply with all the terms of this contract. Should grantee contract the work and then decrease the scope of work ~ be performed by the contractor, Grantee shall provide County with an amended contract e~ecuted by Grantee and its contractor. Failure to provide County with an amended contract d1creasing the scope of the work to be pelformed by the contractor may render any goods 0 services provided other than through the contractor of record as not reimbursable. , i c) Grantee shall exJrcise good internal controls to assure that the project as described in the funding application s~all 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 consul~nt if necessary, required to establish that materials, equipment and other fixtures and personall property covered by this agreement are delivered to and installed in the project site. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed S250'OOOJr materials and services used to improve, rehabilitate, repair and renovate the property. The oard of County Commissioners and the Tourist Development Council assume no liability fund this agreement for an amount in excess of this award. Monroe County's perfonnan and obligation to pay under this agreement is contingent upon an annual appropriation by the aOCC. I a) Payment for ~xpenditures permissible by law and County policies shall be made through reimbursement to ~ntee upon presentation of Application for Payment Summary - AlA Document G702, inv ices, canceled checks and other documentation necessary to support a claim for reimburse n1. 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 Gra~r. The application for payment document must be certified through a statement signed by rn officer of the organization and notarized, declaring that representations in the invoice are tr~e and factual. Grantee shall also provide partial releases of liens or certifications of non-IJen if applicable. Grantor shall retain 10% of any payment on work in progress until the G,ntee has provided a Final Release of Lien for each vendor/Contractor for ! i I 2 I I I NOV-01-04 11,48 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516 PAGE 15/25 whom payment is relestedo Final payment will not be made until the following documents are complete and SUbmi,d to the Grantor: AlA Documen~ G-702 Application for Payment Summary AlA Documen~ G-704 Certificate of Substantial Completion AlA Document! G-706 Contractor's Affidavit of Debts & Claims AlA Documenti G-706A Contractor's Affidavit of Release of Liens AlA Documentl G-707 Consent of Surety to Final Payment Final Release f Lien Affidavit and P rtial Release of Lien All payment request must be submitted no later than September 30, 2005. Invoices received after September 30, 005 will not be considered for payment. b) Grantee may elect to have vendors and contractors paid through the direct vendor method, upon subm~ssion of appropriate documentation as outlined above and a specific request that paymentjbe made directly to the vendor or contractor rather than to Grantee. c) Application of,matching funds requires actual payment of the matching funds, or, in the altemative, a commit ent of said funds and that the portion of the project for which the matching funds are to be use has been sufficiently completed to require payment of said matching funds. Mere obligati n through execution of a contract or approval of a budget item to be paid from matching funds ~i11 not suffice. d) Documentation ~hall be submitted to the TDC Administrative Office to show the receipt and application of in-ki~d donations of goods, professional services, and materials. Said documentation ShOU~' include invoices, bills of lading, etc., and be verified as received and applied to the proje through a notarized statement of the project architect, engineer, general contractor or project anager. The receipt and application to the project of volunteer labor are to be documented a verified by notarized signature of the project architect, engineer, general contractor or project I manager, and said documentation submitted to the TOe Administrative Office. All submissi~ns shall identify the items included in the schedule of values attached hereto and incorpo~ted herein as Exhibit A which are sought to be reimbursed and shall indicate the percenta~e of completion of the overall project as of the submission. This document should be signed b}1 the project architect, engineer, general contractor or project manager. Photographs ShOWi~' progress on project shall be included in any payment request. The Project manager sha I certify delivery to the project site and installation therein of any goods or services provided 0 er than through an architect. engineer or contractor. All work performed and goods received n site and incorporated into the project shall be verified by one of the foregoing. I e) Grantee must su~mit all documentation for final payment on or before the termination of this grant of September I 30, 2005. Invoices received after September 3D, 2005 will not be considered for paym1nt. I I I I I 3 NOV-01-04 11.48 FROM.MONROE COUNTY ATTY OFFICE 10.3052923516 PAGE 16/25 f) At any time that he documentation requirement policies of Monroe County are revised and notice of same is p vided to Grantee, Grantee shall comply thereafter with such increased requirements, or the jCounty shall not be required to reimburse for any work subsequent to the notice for which documentation does not comply with the requirements. i g) Upon succes I ul completion of this Grant agreement, the Grantee may shall retain ownership of the rea and personal property acquired and/or improved with funding under this Grant Agreement. H wever, the Grantee shall complete and sign a Property Reporting Form for personal property a d forward said completed form with the appropriate invoice to the TOC Administrative Office. Real property acquired or improved through funding under this agreement shall remain dedicat d for the purposes set forth herein or for other purposes which promote tourism and retain oYl1nership of said property in the Grantee. The following terms shall apply: (i) The Grimtee shall have the use of the equipment and other personal property at the project site for s9 long as the facility is operated by Grantee, open to the public, and has a primary purpose of p~moting tourism. ii) At such time as any of the conditions in sub-paragraph (i) above cease to exist, the Grantee shall tran r ownership and possession of equipment and personal property to a/another not-far-pro It organization which is a faCility for which tourist development taxes may be used pursuant 0 Florida Statute; and refund to the County the amount of Tourist Development fundin received for the real property phases of the project at such time that the Grantee demolishes he project facility or divests itself of ownership or possession of the real property, or the use Qf the property no longer has a primary purpose of promoting tourism. This provision shall surviv~ the termination date of all other provisions of this contract for a period of ten years. Should te demolition. transfer of ownership, or change to a non-tourist related purpose occur after e facility has been used for tourist-related purposes for at least three (3) years, the amount of fund shaU be pro-rated based on a useful life of ten (10) years. (iii) The G~ntee is responsible for the implementation of adequate maintenance procedures to keep e real and personal property in good operating condition. (iv) The G ntee is responsible for any loss, damage, or theft of, and any loss, damage or injury caused by I the use of, real or personal property or equipment purchased through funding under this Agrement. I 4. RECORDS AND! REPORTS. The Grantee shall provide financial reports in summary of activity on forms pro~'ded or approved by the TDC, and quarterly narrative reports of activity under the approved work plan. The Grantee shall keep such records as are necessary to document the perfo ance of the agreement and expenses as incurred, and give access to these records at the equest of the TDC, the County, the State of Florida or authorized agents and representatives qf said government bodies. It is the responsibility of the Grantee to maintain appropriate records In accordance with generally accepted accounting principles consistently applied to insure a ~roper accounting of all funds and expenditures. The Grantee shall also allow access to theh' same government agents and representatives to inspect any and all equipment, fixtures a d personal property acquired through funding under this agreement. The Grantee understand~ that it shall be responsible for repayment of any and all audit exceptions which are identified f the Auditor General for the State of Florida, the Clerk of Court for Monroe County, the Board of County Commissioners far Monroe County, or their agents and representatives. In he event of an audit exception, the current fiscal year grant award or I I ! 4 i I NOV-01-04 11,48 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516 PAGE 17/25 \ I I subsequent grant a~rds will be offset by the amount of the audit exception. In the event the grant is not renewed lor 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. ! i (a) Public Access. The County and Grantee shall allow and permit reasonable access to, and inspection of, all doquments, papers, letters or other materials in its possession or under its control subject to thel provisions of Chapter 119, Florida Statutes, and made or received by the County and Grantee lin conjunction with this Agreement; and the County shall have the right to unilaterally cancel thi, Agreement upon violation of this provision by Grantee. 5. MODIFICATION~ 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 ~onroe County. The terms, covenants, conditions, and provisions of this Agreement shall binq and inure to the benefit of the County and Grantee and their respective legal representatives'i successors, and assigns. i 6. INDEPENDENT tNTRACTOR. At all times and for all purposes hereunder, the Grantee is an independent con ctor 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 jemployees, contractors, servants or agents to the employees of the Board of County Commissicpners of Monroe County, and they shall be entitled to none of the rights, privileges or benefits rf employees of Monroe County. (a) No perso~al Liability. No covenant or agreement contained herein shall be deemed to be a covenant or ~greement of any member, officer, agent or employee of Monroe County in his or her individuallcapacity, and no member, officer, agent or employee of Monroe County shall be liable peinallY on this Agreement or be subject to any personal liability or accountability by rea on of the execution of this Agreement. 7. COMPLIANCE W TH LAW. In carrying out its obligations under this agreement, the Grantee shall abide by all st~tutes, ordinances, rules and regulations pertaining to or regulating the provisions of this ag~ement, including those now in effect and hereafter adopted. Any material violation of said stat~. tes, ordinances, rules or regulations shall constitute a material breach of this agreement and shall entitle the Grantor to terminate this agreement immediately upon delivery of written no ce of termination to the Grantee. I 8. RESTRICTIONS ~N AGREEMENTS ENTERED PURSUANT TO THIS AGREEMENT. The Grantee shall inClUde! in all agreements funded under this agreement the following terms: a) Anti-discriminatio~. Contractor agrees that they will not discriminate against any employees or applicants for amp-Ioyment 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 andicap does not affect the ability of an individual to perform in a position of employment, and t abide by all federal and state laws regarding non-discrimination. 5 NOV-01-04 11:48 FROM:MONROE COUNTY ATTY OFFICE 10:3052823516 PAGE 18/25 I I I I I b) Anti-kickback. Cohtractor 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 conting,nt fee, and that no employee or officer of the Contractor has any interest, financially or otherwi~e, in contractor. For breach or violation of this warranty, the Contractor shall have the right t9 annul this agreement without liability or, in its discretion, to deduct from the agreement Pri!' or consideration, the full amount of such commission, percentage, brokerage or contin ent fee. Contractor acknowledges that it is aware that funding for this agreement is availab e at least in part through the County and that violation of this paragraph may result in the Cou ty withdrawing funding for the Project. c) Hold harmlessJin~emnification. Contractor acknowledges that this agreement is funded at least in part by the C~unty and agrees to indemnify and hold harmless the County and any of its officers and employ~es from and against any and all claims, liabilities, litigation, causes of action, damages, co. ,expenses (including but not limited to fees and expenses arising from any factual investiga on. discovery or preparation for litigation), and the payment of any and all of the foregoing or a y demands, settlements or judgments (collectively claims) arising directly or indirectly from a y negligence or criminal conduct on the part of Contractor in the performance of the t rms of this agreement. The Contractor shall immediately give notice to the County of any suit. 41aim 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 ~Iaim related this agreement. d) Insurance. con~ctor agrees that it maintains in force at its own expense a liability insurance policy whi h will insure and indemnify the Contractor and the County from any suits, claims or actions bro ght by any person or persons and from all costs and expenses of litigation brought against the ontractor for such injuries to persons or damage to property occurring during the agreemen or thereafter that results from performance by Contractor of the obligations set forth in this agre ent. At all times during the term of this agreement and for one year after acceptance of the prpject, 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 prvided: 1. Workers rmpensation insurance as required by Florida Statutes. 2. Commerpial General Liability Insurance with minimum limits of $500,000 per occurrence for bodilylinjurv, personallnjurv and property damage- 3. Compreh~nsive Auto Liability Insurance with minimum limits of $300,000 combined single limit per occur~nce. The Contractor, the $ounty and the TDC shall be named as additional insured, exempt workers compensation. The f,poliCies shall provide no less than 30 days notice of cancellation, non- renewal or reduction f coverage. ! 6 NOV-01-04 11:50 FROM:MONROE COUNTY ATTY OFFICE 10:3052923516 PAGE 19/25 At all times during th, term of this agreement and for one year after acceptance of the project, Contractor shall mai~tain on file with the County a certificate of insurance showing that the aforesaid insurance cpverage's are in effect. I e} Licensing and per~' its. 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. f) Right to Audit. The Contractor shall keep such records as are necessary to document the performance of the aareement 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 saif government bodies. 9. HOLD HARMLES~INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold harmless the BOCCf1rOC and any of its officers and employees from and against any and all claims, liabilities, Iitig*ion, causes of action, damages, costs, expenses (including but not limited to fees and expensf3s arising from any factual investigation, discovery or preparation for litigation). and the p,yment of any and all of the foregoing or any demands, settJements or judgments arising dir!ectly or indirectly under this agreement. The Grantee shall immediately give notice to the G~ntor of any suit, claim or action made against the Grantor that is related to the activity under thiSI agreement, and will cooperate with the Grantor in the investigation arising as a result of any suitl action or claim related to this agreement. I I (a) Non-Waiver of Immunity. Notwithstanding he provisions of Sec. 286.28, Florida Statutes, the participation of tije County and the Grantee in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool cove.tage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. (b) Privileges and Imrpunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, an9,rules and pensions and relief, disability, workers' compensation, and other benefits which applYlto the activity of officers, agents, or employees of any public agents or employees of the C~unty, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of suchl functions and duties of such officers, agents, volunteers, or employees outside the territorial t,imits of the County. , 10. NONDISCRIMINATION. County and Grantee agree that there will be no discrimination against any person. land it is expressly understood that upon a detennination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further a~ion on the part of any party, effective the date of the court order. County or Grantee agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating tq nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 19t)4 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Titl1a IX of the Education Amendment of 1972. as amended (20 USC ss. 1681. 7 NOV-01-04 11:50 FROM:MONROE COUNTY ATTY OFFICE 10:3052923516 PAGE 20/25 1683, and 1685-1686~, which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC S. 794), which prohibits discrimination on the basis of handicaps; 1) The Age Discrimination Act of 1975, as amended (42 USC 5$. 6101- 6107) which Pl10hibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 197~ (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The qomprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 use $S. 690dd-3 an~ 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent record~; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating tQ nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabflities Act of 1990 (42 use s. 1201 Note), as maybe amended from time to time, relating to nondiF,crimination on the basis of disability; 10) Any other nondiscrimination provisions in any FEjeral or state statutes which may apply to the parties to, or the subject matter of, this Agreellrent. 11. ANTI-KICKBAC~. The Grantee warrants that no person has been employed or retained to solicit or secure thi~ agreement upon an agreement or understanding for a commission, percentage, brokeragf3 or contingent fee, and that no employee or officer of the County or TDC has any interest, fi~ancially or otherwise, in the said funded project, except for general membership. For br~ach or violation of this warranty, the Grantor shall have the right to annul this agreement withqut liability or, in its discretion, to deduct from the agreement price or consideration, the fulllamount of such commission, percentage, brokerage or contingent fee- 12. TERMINATION. fhis agreement shall terminate on September 30.2005. Termination prior thereto shall occur whenever funds cannot be obtained or cannot be continued at a level sufficient to allow fori the continuation of this agreement pursuant to the terms herein. In the event that funds ca~not be continued at a level sufficient to allow the continuation of this agreement pursuant ita the terms specified herein, this agreement may then be terminated immediately by wrttt~n notice of termination delivered in person or by mail to Grantee. The Grantor may terminar this agreement without cause upon giving one hundred twenty (120) prior written notice 0 termination to Applicant. The Grantor shall not be obligated to pay for any services or goods pro ided by Grantee after Grantee has received written notice of termination. I 13. TERMINATION f10R BREACH. The Grantor may immediately terminate this agreement for any breach of the terms contained herein. Such termination shall take place immediately upon receipt of written notice of said termination. Any waiver of any breach of covenants herein contained to be kept and performed by Grantee shall not be deemed or considered as a continuing waiver an~ shall not operate to bar or prevent the Grantor from declaring a forfeiture for any succeeding breach either of the same conditions or of any other conditions. Failure to provide Grantor with i certification of use of matching funds or matching in-kind services at or above the rate of req~est for reimbursement or payment by is a breach of agreement, for which the Grantor may termInate this agreement upon giving written notification of termination. I 8 NOV-01-04 11,51 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516 PAGE 21/25 i 14. ENTIRE AGRE~MENT. This agreement constitutes the entire agreement of the parties hereto with respect t the subject matter hereof and supersedes any and all prior agreements with respect to such ubject matter between the Grantee and the Grantor. 15. GOVERNING W, VENUE, INTERPRETATION, COSTS, AND FEES. This Agreement shal be governed by and construed in accordance with the laws of the State of Florida applicable to ~ntracts made and to be performed entirely in the State. (a) Venue. In th~ event that any cause of action or administrative proceeding is instituted for the enforcement pr interpretation of this Agreement, the County and Grantee agree that venue will lie in the ,pprOPriate court or before the appropriate administrative body in Monroe County, Florida. I (b) Mediation. Thr County and Grantee agree that, in the event of conflicting interpretations of the terms or a terTll of this Agreement by or between any of them the issue shall be submitted to mediation prior to t~e institution of any other administrative or legal proceeding. (c) Severability. 'f any term, covenant, condition or provision of this Agreement (or the application thereof tolany circumstance or person) shall be declared invalid or unenforceable to any extent by a courll of competent jurisdiction, the remaining terms. covenants, conditions and provisions of this Agr~ement, shall not be affected thereby; and each remaining term, covenant, condition and provisicPn of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by I,w unless the enforcement of the remaining terms, covenants, conditions and provisions of thisl Agreement would prevent the accompliShment of the original intent of this Agreement. The Co~nty and Grantee agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. (d) Attorney's Fee~ and Costs. The County and Grantee agree that in the event any cause of action or administraJive proceeding is initiated or defended by any party relative to the enforcement or intetpretation of this Agreement, the prevailing party shall be entitled to reasonable attomey'~ fees. court Costs. investigative, and out-of-pocket expenses, as an award against the non-prev~iling party, and shall include attorney's fees. courts costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant ~ this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual ~nd customary procedures required by the circuit court of Monroe County. , (e) Adjudication of Disputes or Disagreements. County. and Grantee agree that all disputes and disagreements ~hall be attempted to be resolved by meet and confer sessions between representatives of eaph of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of CountV 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 tl!1is Agreement or by Florida law. 9 NOV-01-04 11,51 FROM,MONROE COUNTY ATTY OFFICE 10,3052923516 PAGE 22/25 (f) Cooperation. !In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, County and Grante~ agree to participate, to the extent required by the other party, in all proceedings, hearing" processes, meetings, and other activities related to the substance of this Agreement or provisi9n of the services under this Agreement. County and Grantee specifically agree that no party tq this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 16. ETHICS CLAUSE: Grantee warrants that he has not employed, retained or otherwise had act on his beh,1f any former County officer or employee in violation of Section 2 or Ordinance No. 10-19'0 or any County officer or employee in violation of Section 3 of Ordinance No. 10-1990. For br~ach or violation of the proVision the Grantor may, at its discretion terminate this agreement without liability and may also, at its discretion, deduct from the agreement or purchase price, or ot~erwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former or present County officer or employee. The County and Grantee warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fid. employee working solely for it, to solicit or secure this Agreement and that it has not paid or agr~ed to pay any person, company, corporation, individual, or firm, other than a bona fide employ1e working solely for it, any fee, commission, percentage. gift, or other consideration conting~nt upon or resulting from the award or making of this Agreement. For the breach or violation ot the provision, the Grantee agrees that the County shall have the right to I terminate this Agreerl'lent without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. (a) Covenant of No Interest. County and Grantee covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perfonn and receive benefits as recited in this Agreement. ! (b) Code of EthiC~. County agrees that officers and employees of the County recognize and will be required to cqmply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 17. PUBLIC EN]ITY CRIME STATEMENT: A person or affiliate who has been placed on the convicted vendor Ust following a conviction for public entity crime may not submit a bid on an agreement to provid, any goods or services to a public entity, may not submit a bid on a agreement with a public entity for the construction or repair of a public building or public work, may not submit bids pn leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, sub-contractor, or consultant under a agreement with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the cOnvicted vendor list. 10 NOV-01-04 11:52 FROM:MONROE COUNTY ATTY OFFICE 10,3052923516 PAGE 23/25 18. AUTHORITY~ Grantee warrants that it is authorized by law to engage in the performance of the \activities encompassed by the project herein described. Each of the signatories for the Grantee below certifies and warrants that the Grantee's name in this agreement is the full! name as designated in its corporate charter (if a corporation); they are empowered to act and contract for the Grantee, and this agreement has been approved by the Board of Directors of Grantee or other appropriate authority. 19. LICENSING ANDI PERMITS: Grantee warrants that it shall have, prior to commencement of work under this agre,ment and at all times during said work, all required licenses and permits whether federal, state, County or City. I 20. INSURANCE: ~rantee 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 bro49ht by any person or persons and from all costs and expenses of litigation brought against the ~rantee for such injuries to persons or damage to property occurring during the agreement or theF;eafter that results 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 of the prbject. Grantee shall maintain on file with the Grantor a certificate of the insurance of the carri~rs showing that the aforesaid insurance policy is in effect. The following coverage's shall be p~vided: 1. Workers CQmpensation insurance as required by Florida Statutes. 2. Commerci(!ll General Liability Insurance with minimum limits of $500,000 per occurrence for bodily injUry, personal injury and property damage. 3. Comprehe~sive Auto Liability Insurance with minimum limits of $300,000 combined single limit per occurr~nce. i The Grantee, the G~ntor and the TDC shall be named as additional insured, except workers compensation. The policies shall provide no less than 30 days notice of cancellation, non- renewal or reduction ~f coverage. At all times during th~ term of this agreement and for one year after acceptance of the project, Grantee shall mainuJin on file with the Grantor a certificate of insurance showing that the aforesaid insurance cpverage's are in effect. 21. NOTICE. ArYy written notice to be given to either party under this agreement or related hereto shall be addre~sed and delivered as follows: For Grantee: Susie Thomas City of Marathon ,10045-55 Overseas Highway Marathon, FI. 33050 For Grantor: . Lynda Stuart 11 NOV-01-04 11,52 FROM,MONROE COUNTY ATTY OFFICE 10,3052923516 PAGE 24/25 ; Monroe County Tourist Development Council 1201 White Street, Suite 102 , Key West, FL 33040 and I Suzanne Hutton, Asst. County Attorney , P.O. Box 1026 i : Key West, FL 33041-1026 , 22. CLAIMS FOR fEDERAL OR STATE AID. Contractor and County agree that each shall be, and is, empowe~ to apply for, seek. and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests. grant proposals, and funding solicitations shall be ~pproved by each party prior to submission. 23. NON-DELEGATION OF CONSTITUTIONAL OR 8T ATUTORY DUTIES. This Agreement is not intended to, ~or shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance ~ereof by any participating entity, in which case the performance may be offered in satisfaction I of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be con$trued as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida constitution. state statute, and case law. 24. NON-RELIANCE BY NON-PARTIES. No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement tb or benefit of any service or program contemplated hereunder. and the County and the Gran~ee agree that neither the County nor the Grantee or any agent, officer, or employee of either s~all have the authority to inform. counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separ~te and apart, inferior to. or superior to the community in general or for the purposes contempla~ in this Agreement. 25. ATTESTATIONS. Grantee agrees to execute such documents as the County may reasonably require, tp include a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free Workplacei Statement. I 26. NO PERSON.+.L 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 irdividual 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 reaspn of the execution of this Agreement. I 27. FORCE MAJE~RE. The Grantee shall not be liable for delay in performance or failure to complete the project, I in whole or in part, due to the occurrence of any contingency beyond its control or the control lot its contractors and subcontractors, including war or act of war whether 12 NOV-01-04 11,52 FROM,MONROE COUNTY ATTY OFFICE 10,3052923516 PAGE 25/25 i an actual declaration thereof is made or not, act of terrorism impacting travel in the United States, insurrection, riot or civil commotion, act of public enemy, epidemic, quarantine restriction, storm, flood, drought or other act of God, or act of nature (including presence of endangered animal species whiqh cannot be timely removed in a safe manner or any act of any governmental author~y which prohibits the project from proceeding as described in the soope of services and incorpollated references and which the Grantee has exercised reasonable care in the prevention thereot. However, lack of planning for normal and expected weather conditions for the time of year t~e project is to be executed shall not constitute an act of God excusing a delay. Any delay o~ failure due to the causes stated shall not constitute a breach of the Agreement and the q:ontract may be amended to extend for an additional period of time, with BOCC approv~1 thereof not to be unreasonably withheld; however, the BOCC shall have the right to det~rmine if there will be any reduction to the amount of funds due to the Grantee after consid,ration of all relevant facts and circumstances surrounding the delay in performance or failu~ to complete the project within the contract period. Upon demand of TDC or BOCC, the Grante, must furnish evidence of the causes of such delay or failure. BOCC shall not pay for any gOOd, received or services provided after the date(s) described in paragraph 1 and Scope of Service,. 28. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number 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 counterpart. 29. SECTION HE~DINGS_ Section headings have been inserted in this Agreement as a matter of convenien~ of reference only, aod it is agreed that such section headings are not a part of this Agreem~nt and will not be used in the interpre~tion of any provision of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this agreement ,to be executed the day and year first above written. (SEAL) , ATTEST: DANNYL.KOLHAGE,CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: DeputY Clerk By: Mayor/Chainnan "~~~~~ TV RAT ~ I \ OF MA {/" Date A8S1sTAN~?~7;~RNEY '\ By: By: 13 ( ( /;-;.;j~ ~, -/ /.) ( 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 TOe funds requested. All phases and total estimated cost of the entire project must be listed here. Architectural services for desian (In kind donation) = $40.000 Construction of Birdair Architectural Tensile Membrane Structure Coliseum $460.000 Total cost of phase/project for which funds are requested: (not to exceed 50% of the total project cost: a)Phase b )Project I J500.000 Percentage of TDC funds requested of Total Budget: (not to exceed 50% of the total project cost) a)Phase b )Project I -'250.000 ( 2. Confirmation that signed, sealed bid process was utilized for acquiring architectural services, or that project does not require architectural services. 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 City of Marathon CaDitallnfrastructure $210.000 b) In-Kind (SO%) limit: Recreation Desion & Construction. Inc.. architectural desian services = $40.000 Total confirmed matching Hard-dollar funds: exhibit M) --.J210.000 {See Total confirmed matching In-kind funds: 40.000 23 ( ( ( This amount should equal or exceed TOe Funds requested. Proiected in-kind services and aoeds shall be allocated the followina values. subiect to neaotiation with TDC/Countv. List here all such anticiDated values: Standard acceDtable desion service contracts run 10% to 12% of the comDleted Droiect. The in-kind services of Recreational Desion and Construction. Inc. for architectural desian services fall within these auidelines 4. Outline of expansion opportunity for acquiring further match grants. ( N/A 24 ( ( ( 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 6 7 8 9 10 11 12 a) b) c) d) e) Oesian (60 davs) Permittina (90 davs) Construction (210 davs) f) g) ( h) Please indicate any critical dates and explain why they are critical. The critical timine of this oroiect is to run concurrentlv with the desien and construction of Community Park Phase " 4. What is the total project cost: $ 500.000 5. Length of time for project completion (months and year(s): One (1) Year 25 , . ( 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 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 LOCATION/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: