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Item D3 \ BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: July 20 1 2005 Division: TDC Bulk Item: Yes -X- No - Department: Staff Contact Person: Maxine Pacini AGENDA ITEM WORDING: Approval of an Amendment to Agreement with the City of Key West to extend agreement for the McCoy Indigenous Park Habitat and ADA Improvements project to March 31,2006. ITEM BACKGROUND: PREVIOUS RELEVANT BOCC ACTION: BOCC approved original Agreement at their meeting of October 20, 2004. CONTRACT/AGREEMENT CHANGES: Amendment to extend STAFF RECOMMENDATIONS: Approval TOTAL COST: $127.000 BUDGETED: Yes -2L No - COST TO COUNTY: $127,000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes -K.. No AMOUNT PER MONTH - Year - APPROVED BY: County Arty -X- OMB/Purchasing --X- Risk Management -K- DIVISION DIRECTOR APPROVAL: _/~.7?/2/a.t.-:_",.,-.../t (Lynda Stuart) DOCUMENTATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Revised 2/05 MONROE C01JNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SuMMARY Contract with: The City of Key West Contract #_ Effective Date: 6/15/05 Expiration Date: Contract Purpose/Description: Approval of an Amendment to Agreement with the City of Key West to extend agreement for the McCoy Indigenous Park Habitat and ADA Improvements proiect to March 31 , 2006. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext. ) (Department/Stop #) for BOCC meeting on 7 / 20/05 Agenda Deadline 7/5/05 CONTRACT COSTS Total Dollar Value of Contract: $ 127,000 Current Year Portion: $ Budgeted? YescgJ NoD Account Codes 117-77040-530340-T57B-532X-530340 { Grant: $ County Match: $ - - - - --~~- - - - - - --- ADDITIONAL COSTS Estimated Ongoing Costs: $~yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Date Out Division Director Risk Management O.M.B./Purchasing '5-t.l -D5 YesD No 5~ ~ County Attorney ~S YesD NoC,}-' S.Hutton ~ Z~- Comments: OMB Form Revised 2/27/01 MCP #2 AMENDMENTTOINTERLOCALAGREEMgN! THIS ADDENDUM to agreement is made and entered into this _ day of 2005, between the County of Monroe and The City of Kay West. WHEREAS, there was a contract entered into on October 20, 2004, between the parties awarding $127,000 to the City of Key West for the McCoy Indigenous Park Habitat and ADA Improvements project; and WHEREAS, it has become necessary to extend the agreement for an additional six month period to allow for completion of the project; NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties agree to the amended agreement as follows: 1. Contract period as outlined in Paragraph 1 shall be extended to March 31,2006. 2. The remaining provisions of the contract dated October 20, 2004 remain in full force and effect. IN WITNESS WHEREOF, the parties have set their hands and seal on the day and year first above written. (SEAL) ATTEST: City of Key West Clerk . (SEAL) ATTEST: DANNY L KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Deputy Clerk Mayor/Chairman Annalise Mannix-Lachner, PeE, 627 Palm Ave. Key West City Stormwater Engineer (305) 292 175 J April 25, 2005 Maxine Pancini Monroe County Tourist Development Council PO Box 866 Key West, FL 33040 RE: Grant Extension Request for McCoy Indigenous Park Bird Aviary Dear Ms. Pancini: The City of Key West respectfully requests a 6 month extension for the McCoy Indigenous Park Bird Aviary. The project is partially complete; however, it is not know if the project will be fully complete and billable by the end of September. We ask that the grant contract end date be extended for 6 months and 50% of the project cost be rolled over in to FY 2006. Sincerely, .0~~ Annalise Mannix- Lachner City Stormwater Engineer CC: David Fernandez " . r' " t ~ Grant AwarU Aa~ This InterIocal AGREEMENT dated the 2€.yI~ay of I'JcT ~S entered into by and between the BOARD OF COUNTY COMMISSIONERS FO MONROE COUNTY, hereinafter .County" or "GRANTOR,. on behatf of the TOURIST DEVElOPMEHT COUNCil. hereinafter .TOC,. and CITY OF KEY WEST, a municipal corporation. hereinafter "Grantee. . WHEREAS, the third peMy of Tourist Development Tax may be used to acquire, construct. 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 has included operations and maintenance costs of the facility in its annual budget; and WHEREAS, Grantee has appfied for funding for the McCoy Indigenous Park Habitat and ADA Improvements project to improve and rehabilitate the McCoy Indigenous Park property hereinafter "the Property"; and WHEREAS, the Grantor and TOC have determined that it is in the best interest of the County, for purposes of promoting tourism and preserving the heritage of the community. to improve, repair and rehabilitate the property for use as a nature center open to the public; NOW, THEREFORE. in consideration of the mutual covenants and payments contained herein, the Grantee and the Grantor have entered into this agreement on the terms and conditions as set forth befow. 1. GRANT AGREEMENT PERIOD. This agreement is 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 tennination pursuant to and in oompliance with paragraphs 7 t 12 and 13 bekM>. 2. SCOPE OF AGREEMENT. The Grantee shafl provide construction of permanent bird habitat structures, connection of bird waste disposal system to sewer. and trail improvements incfuding sfip-.resistant surfaces. ramps and swing gates. as described in the funding application. All work for which grant funds are to be expended must be completed by the stated termination date of September 30t 2005 and all invoices pertaining to this project shaN be submitted to the Finance Department of Monroe County no later than September 30, 2005 to be considered for payment. a) There shalf be a project manager to acknowtedge receipt of goods or work performed. This Project Manager shalt be AnnaJise Mannix-lac:hner, P.E., Manager, Engineering Services, City of Key West. whose address and phone number are 604 Simonton Street, Key West. FI. 33040, and J05..292-8195. Should there be a change in the] project manager . ( " specified in the Grantee's application. a new project manager shall be designated 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 performed or completed. Grantee shall give notice to County of the contractual relationship. provide County with a copy of the contract and shaU require the contractor to comply with all the terms of this centrad. Should grantee contract the work and then decrease the scope of wor1( to be performed by the contractor, Grantee shall provide County with an amended contract executed by Grantee and its contractor. c) Grantee shalt exercise good internal controls to aSSU"e that the project as described in the funding application shall be completed on a timely basis within the proposed budget and shall provide to County any certifications. inducting those by an independent consultant if necessary. required to establish that materials which are purported to be apptied to the project are in fact so applied. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $127.000 for materials and services used to improve. rehabilitate. repair and renovate the property. The Boan:t of County Commissioners and the Tourist Development Council assume no liability 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 annuat appropriation by the BOCC. a) Payment for expenditlres permiSSible by law and County poticies shaH be made through reimbursement to Grantee upon presentation of Application for Payment Summary _ AlA Document G702. invoices. canceled dlecks and other documentation necessary to support a claim for reimbursement Included in said documentation shall be proof that the Grantee has received and apptied to the property matching funds equivalent to or greater than the amount invoiced to the Grantor. The application for payment document must be certified through a statement signed by an officer of the organization and notarized, decfaring that representatioos in the invoice .e true and factual. Grantee shaJl also provide partiat releases of liens or certifications of norHien if applicable. Grantor shall retain 10% of any payment on W'OI'X in progress until the Grantee has provided a Final Release of Lien for each vendor/Contractor for whom payment is requested. Final payment will not be made until the following documents are complete and submitted to the Grantor: AlA Document G-702 Application for Payment Summary AlA Doa.llnent G-704 Certificate of Substantial Completion AlA Document G-706 Contracto(s Affidavit eX Debts & Clams AlA Document G-706A Contractor's Affidavit of Release of Uens AlA Document G-707 Consent of Surety to Final Payment Final Release of lien Affidavit and Partial Release of Lien All payment requests must be submitted no later than the completion of project of September 30, 2005. Invoices received after September 30, 2005 will not be considered for payment. 2 b) Grantee may elect to have vendors and contractors paid through the direct vendor ( method, upon submission of appropriate documentation as outlined above and a specific 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 matching funds, or. in the alternative, a commitment of said funds and that the portion of the project for which the matching funds are to be used has been sufficiently completed to require payment of said matching funds. Mere obfigation 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 roc Administrative Office to show the receipt and application of in-kind donations of goods. professional services, and materials. Said documentation should incfude invoices, bills of lading, etc., and be verified as received and applied to the project through a notaized statement of the project archit~ engineer, general contractor or project manager. The receipt a1d application to the project of volunteer labor are to be docunented and verified by notarized signabxe eX the project architect, engineer, general cmtractor or project manager, and said documentation submitted to the roc Administrative Office. All submissions shall identify the items included in the schedule of values attached hereto and incorporated herein as Exhibit A whid'l are sought to be reimbursed and shall indicate the percentage of completion of the overaU project as of the submission. This document should be signed by the project architect, engineer, general contractor or project manager. Photographs showing progress on project shall be induded in any payment request. 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. #) At any time that the documentation requirement policies of Monroe County are revised, Grantee shaff comply thereafter with such increased requirements, or further funding under the agreement may be terminated by County. g) Upon successfuJ completion of this Grant agreement, the Grantee may retain ownership of the rea. and personal property acquired and/or improved with funding under this Grant Agreement However. the Grantee shaft complete and sign a Property Reporting Form for personal property and forward said completed form with the appropriate invoice to the TDC Administrative Office. Real property acquired or improved through ft.r1dng under this agreement shaff remain dedicated for the purposes set forth herein or for other purposes which promote tourism and retain ownership of said property in the Gra'ltee. The following terms shan apply: (i) The Grantee shall have the use of the equipment and other persona property at the project site for so long as the fadlity 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 suf>..paragraph (i) above cease to exist, the Grantee shall tra1sfer ownership and possessjon of equipment and persona, property to a1another not..for-profit 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 facility or divests itself eX ownership or possession of the real 3 . ( property, or the use of the property no longer has a primary purpose of promoting tourism. This provision shall survive the termination date of all other provisions of this confract for a period of ten years. Shoutd the demolition, transfer of ownership, or change to a non-tourist related purpose occur after the facility has been used for tourist-related purposes for at least three (3) years, the amount of refund shall be pro-rated based on a useful life of ten (10) years. (iii) The Grantee is responsible for the implementation of adequate maintenance procedt.J"es to keep the real and persona, property in good operating condition. (iv) The Grantee is responsibfe for any loss, damage, or theft of, and any loss, 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 TOe, and quarterty narrative reports of activity under tle approved work pfan. The Grantee shall keep such records as en necessary to document the performance of the aoreement and expenses as incurred, and give access to these records at the request of the TOe, 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 generally accepted accotsIting principles consistenUy applied to insure a proper accounting of all funds and expenditures. The Grantee understands that it shaH be responsible for repayment of any and all audit exceptions which are identified by the Auditor General for the State of Florida. the Clerk of Court fer Monroe County, the Board of COU1ty Commissioners for Monroe County, or their agents and representatives. In the event of an audit exception, the current fiscal year ~ award or subsequent grant awards will be offset by the amount of the audit exception. In Ihe event the grant is not renewed or supplemented in future years, the Grantee will be billed by the Grantor for 1he amount of the audit exception and shall promptly repay any audit exception. (a) Public Access. The COtIIty and Grantee shall allow and permit reasonabfe access to, and inspectioo of, all documents. papers, letters or other materials in its POssession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the ColIlty and Grantee in conjunction with this Agreement; and the County shafl have the right to unilaterally cancel this Agreement upon violation of this provision by Grantee. 5. MODIFICATIONS AND AMENDMENTS. Any and all modifications of the terms of this agreement shan be only amended in writing and approved by the Board of County Commissioners for Monroe ColIlty. The terms, covenants, conditions. and provisions of this Agreement shall bind and inure to the benefit of the County and Grantee and their respective Iegaf 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 shalf be construed as to find the Grantee or any of its employees. contractors. servants Of agents to the employees of the Board of County Commissioners of Monroe County, and they shaM be entitled to none of the rights, privileges or benefits of employees of Monroe County. 4 (a) No Personal liabtlity. 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 shaff be liable personally on this Agreement or be subject to any persona' liability or accountability by reason of the execution of this Agreement. 7. COMPLIANCE WITH LAW. In carrying out its obligations under this agreement, the Grantee shaflabide by all statutes. ordinances, rules and regulations pertaining to or regulating the provisions of this agreement. including those now in effect and hereafter adopted. Any violation of said staMas. ordinances. rules or regulations shall constitute a material breach of this agreement and shall entitle the Grantor to terminate this ~eement immediately upon delivery of written notice of termination to the Grantee. 8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS AGREEMENT. The Grantee shall include in aD agreements funded under this agreement the following terms: a) Antkfiscrimination. Con1ractor agrees that they wiD not discriminate against any employees or appficants for employment or against persoos for any other benefit or service under this agreement because of their race. cofor. religion. sex. nationat origin, or physical or mental handicap where the handicap does not affect the ability of an individual to perform in a position of employment. and to abide by aD federal and state laws regarding non- disaimination. b) Anti-kickback. Contractor warrants that no person has been employed or retained to solicit or S8aJre this agreement upon an agreement or understanding for a commission. percentage, brokerage or contingent fee. ald that no employee or officer of the Contractor has any interest. financially or otherwise. in contractor. For breach or violation of this warranty. the Contractor shaH 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. Contrador acknowledges that it is aware that funding for this tVeemeot is available at least in part through the County met that violation of this paragraph may result in the County withdrawing funding for the Project c) Hold harmfessrllldemniflCation. Contractor acknowledges that this agreement is funded at least in part by the County and agrees to indemnify and hold harmless the County and any of its officers and employees from and against any and all cfaims. liabilities, litigation, caJses of action. damages, costs. expenses (including but not limited to fees and expenses arising from any factual investigatim, discovery or preparation for litigation), and the payment of any and aI. of the foregoing or any demands, settlements or judgments (COllectively cfaims) arising directly or indirectfy from any negligence or criminal conduct on the part 01 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 wi" cooperate with the County in the investigation arising as a result of any suit. action or claim related this agreement. d) Insurance. Contractor agrees that it maintains in force at its own expense a liability insurance policy which witl iOSlSe and indemnify the Contractor and the County from any suits, dams or actions brought by any person or persons and from aU costs and expenses of litigation brought against the Contractor for such injuries to persons or damage to property 5 ( 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 teon of this agreement and for one year after acceptance of the project, Contractor shatl maintain on file with the County a certificate of the insura1C8 of the carriers showing that the aforesaid insurance policy is in effect. The following coverage's shall be provided: 1. Workers Compensation insurance as required by Florida Statutes. 2. Commercial Generat liability Insurance with minimum limits of $500,000 per occurrence for bodily injury. personal injury and property damage. 3. Comprehensive Auto liability Insurance with minimum 'imits of $300.000 combined single limit per OCClITence. The Contractor. the County and the TOe shall be named as additional insured. exempt workers compensation. The policies shall provide no less than 30 days notice of cancellation, I'1On-I8Il8WaI Of" reduction of coverage. At all times during the term of this agreement and for one year after acceptance of the project. Contractor shall maintain on file with the County a certificate of insurance showing that the aforesaid insurance coverage's are in effect. s) licensing and Pennits. Contractor warrants that it shan 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 agreement and expenses as inct.rred. 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. 9. HOLD HARMlESSlfNDEMNIFICA TION. The Grantee hereby agrees to indemnify and hold harmless the BOCCITDC and any of its officers and employees from and against any and all claims, liabilities. litigation, causes of action. damages, costs, expenses (including but not limited to fees and expenses aising from any factual investigation. discovery or preparation for litigation), and the payment of any and all d the foregoing or any demands, settlements or jUdgments arising directly or indirectly under this agreement. The Grantee shall immediatefy give notice to 1he Grantor of any suit. dam or action made against the Grantor that is related to the activity under this agreement, and will cooperate with the Grantor in the investigation arising as a resutt of any suit. action or dam related to this agreement. (a) Non-Waiver of Immunity. Notwithstanding he provisions of Sec. 286.28, Frorida Statutes, the participation of the County and the Grantee ;n this AQreement and the acquisition of any commercialliabi'ity insurance coverage, self-insurance coverage, or focal government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shalf any contract entered into by the County be required to contain any provision for waiver. 6 (b) Privileges and Immunities. All of the privileges and immunities from liability. exemptions from laws, ordinances, and rules and pensions and refief. disability, workers' compensation. and other benefits whidl apply to the activity of officers, agents, or employees of any pubtic agents or employees of the County, when performing their respective functions under this Agreement within the territoriaf limits of the County shaU apply to the same degree and extent to the performance of such 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 disaimination against any person, and it is expressly understOOd that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any fu1her action on the part of any party. effective the date of the court order. COl6lty or Grantee agree to comply with aU Federaf and Florida statutes, and aU local ordinances, as applicable. relating to nondisaimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (Pl 88-352) which prohibits discrimination on the basis of race, cokJr or national origin; 2) Title IX of the Education Amendment of 1972. as amended (20 USC SSw 1681-1683, and 1685-1686). which prohibits cisaimination on the basis of seX; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 use s. 794). which prohibits discrimination on the basis C'I handicaps; 4) The Age Discrimination Act of 1975, as amended (42 use SSw 6101- 6107) which prohibits disaimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (Pl 92-255), as amended. relating to nondisaimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse a1d Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (Pl 91-616), as amended, relating to nondisaimination on the basis of alcohof abuse or afcoholism; 7) The Public Haalth Service Ad of 1912, ss. 523 and 527 (42 USC ss. 69Odd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 use s. at seq.), as amended. relating to nondiscrimination in the sale, rentaf or financing of housing; 9) lhe 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 nondisaimination provisions in any Federal or state statutes which may apply to the parties to. or the subject matter of, this ~eement. 11. ANTI-KlCKBACK The Grantee warrants that no person has been employed or retained to soficit or secure this agreement upon an agreement or understanding for a commission. percentage. brokerage or contingent fee, and that no employee or officer of the County or TOe has any interest. financially or otherwise. in the said funded project. except for general membership. For breach or violation 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 agreement shall tenninate on September 30, 2005. T ennination prior thereto sha" occur whenever funds cannot be obtained or cannot be continued at a level sufficient fo allow for the CO'1tinuation of this agreemem pursuant to the terms herein. 'n the event that funds canot be continued at a leve' sufficient to allow the continuation of this agreement pursuant to the terms specified herein, this aoreement may then be terminated immediately 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 1 to Applicant. The Grantor shall not be obligated to pay for any services or goods provided by Grantee after Grantee has received written notice of termination. 13. TERMINATION FOR BREACH. The Grantor may immediately terminate this agreement for any breach of the terms contained herein. Such termination 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 shal' not be deemed or considered as a contirJJing waiver and shall not operate to bar or prevent the Grantor from declaring a forfeitlr'e for any succeeding breach either of the same conditions or of any other conditions. Failure to provide Grantor with certification of use of matching funds or matching irH<ind services at or above the rate of request for reimbursement or payment by is a breach of agreement. for which the Grantor may terminate this agreement upon giving written notification of termination. 14. ENTIRE AGREEMENT. This agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements with respect to such subject matter between the Grantee and the Grantor. 15. GOVERNING LAW. VENUE, INTERPRETATION. COSTS. AND FEES. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. (a) Venue. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement. the County and Grantee agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County. FJaida. (b) Mediation. The County and Grantee agree that. in the event of conflicting interpretations of the teons or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. (c) Severability. If any term, covenant. condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction. the remaining terms, covenants, conditions and provisions of this Agreement. shall not be affected thereby; and eadl remaining teon, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms. covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The County and Grantee agree to reform the Agreemem to replace any stricken provision with a valid provision that comes as dose as possible to the intent of the stricken provision. (d) Attorney's Fees and Costs. The County and Grantee agree that in the event any cause of action or administrative proceeding is initiated 0( defended by any party relative to the enforcement or interpretation of ths Agreement. the prevailing party shaM be entitled to reasonable attorneys fees, court costs, investigative, and out-of-pocket expenses. as an award against the l1Ot'l-prevaifing party. and shall indude attorney's fees, COU1s costs. investigative. and out-of-pocket expenses in appellate proceedings. Mediation proceedings 8 initiated and conduded pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usuat and customary procedures required by the circuit court of Monroe County. (e) Adjudication of Disputes or Disagreements. County and Grantee agree that aU disputes and disagreements shalf be attempted to be resolved by meet and confer sessions between representatives of each 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 County Commissioners. If the issue or issues are stiU not resolved to the satisfaction of the parties, then any party shaJJ have the right to seek such refief or remedy as may be provided by this Agreement or by Florida Jaw. (f) Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the fonnation. execution. performance. or breach of this Agreement, County and Grantee agree to participate, to the extent required by the other party, in aU proceedings, hearings, pt"OC8SSe$. meetings. and other activities related to the substance of this Agreement or provision of the services under this Agreement County and Grantee specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 16. ETHICS CLAUSE: Grantee warrants that he has not employed, retained or otherwise had act on his behalf any famer County officer or employee in violation of Section 2 or Ordinance No. 1 ()"1990 or any County ofticer or employee in violation of Section 3 of Ordinance No. 10-1990. For breach or violation of the provision the Grantor may. at its discretion terminate this agreement without liability and may also, at its discretion, deduct from the agreement or purchase price. or otherwise recover, the full amount of any fee. commission. percentage. gift. or consideration paid to the former or present County officer or employee. The County Md Grantee warrant that. in respect to itself. it has neither employed nor retained any company or person, other than a bona fide employee working solely for it. to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individuaf. or finn, other than a bona fide employee working solely for it. any fee. commission. percentage, gift. or other consideration conti1gent upon or resulting from the award or making of this Agreement For the breach or vDation 01 the provision, the Grantee agrees that the County shal' have the right to terminate this Agreement without liability and. at its disaetion. 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 presentfy has any interest. and shall not acquire any interest, which would conftict in any manner or degree with its performance tSIder this A(J"eement. and that only interest of each is to perfonn and receive benefits as recited in this Agreement. (b) Code of Ethics. County agrees that officers and employees of the County recognize and will be required to comply 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 blJsjness with one's agency; l.IllaJthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 9 ( 17. PUBLIC ENTITY CRIME STATEMENT: A person or affiliate who has been placed on the convicted vendor list following a convidion for public entity 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 public entity for the constnJction or repair of a public building or public work. may not submit bids on leases of real property to ~ic entity, may not be awarded or perform work as a contractor, supplier, sub-contracta, or consultant under a agreement with any public entity, and may not transact business with any public entity in excess of the threshofd amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 18. AUTHORITY: Grantee warrants that it is authorized by law to engage in the performance of the activities encompassed by the project herein desaibed. Each of the signatories fa 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 caporation); 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 all times during said work. all required licenses and permits whether federal, state. County or City. 20. INSURANCE: Grantee agrees that it maintains in force at its own expense a liability insurance policy which will insure and indemnify the Grantee and the Grantor from any suits, dams or actions brought by any persoo or persons and from all oosts and expenses of litigation brought against the Grantee for such injuries to persons or damage to property occuning dlling the agreement or thereafter that results from performance by Grantee of the obligations set forth in this agreement. At all times during the tenn of this agreement and for one yeti after acceptance of the project, Grantee shaD maintain on file with the Grantor a certificate of the inst.rance of the carriers showing that the aforesaid insurance policy is in effect The following coverage's shall be provided: 1. Workers Compensation insurance as required by Florida Statutes. 2. Commercial General liability Insurance with minimum limits of $500,000 per occurrence for bodily injury, personal injury and property damage. 3. Comprehensive Auto liability Insurance with minimum limits of $300,000 combined singte Umit per occurrence. The Grantee, the Grantor and the TDC shaD be named as additionaf inSll'ed. except workers compensation. The policies shaJl provide no less than 30 days notice of ca1C8Ilation, non- renewal or rec1Idion of coverage. At aU times during the tenn of this agreement and for one year atter acceptance of the project, Grantee shall maintain on file with the Grantor a certificate of inStlance showing that the aforesaid iflSll"anc8 coverage's are in effect. 21. NOTICE. Any written notice to be given to either party under this agreement or related hereto shall be addressed and delivered as follows: 10 For Grantee: Annalise Mannix-lachner, P.E. Manager. Engineering City cI Key West 604 Simonton Street Key West. Florida 33040 For Grantor: lynda Stuart Monroe County Tourist Development Council 1201 White Street, Suite 102 Key West. Fl 33040 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 applications. requests. grant proposals. and funding 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 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 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 shall it be construed as. authorizing the delegation of the constitutional or statutory duties of the County, except to the extent pennitted by the Aorida constitutiOn. state statute. and case law. 24. NON-RElfANCE 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 daim or entitlement to or benefit of any service or program contempfated hereunder, and the County and the Grantee agree that neither the County nor the Grantee or any agent, officer. or employee of either shall have the authority to inform, counsel. or otherwise indicate that any particular individual or group of individuals, entity or entities. have entitlements or benefits under this Agreement separate and apart. inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 25. ATTESTATIONS. Grantee agrees to execute sudl documents as the County may reasonably require, to include a Pubfic Entity Crime Statement, an Ethics Statement. and a Drug-Free Workplace Statement. 26. NO PERSONAl lIABILITY. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member. officer. agent or employee of 11 Monroe County shall be liable personally on this Agreement or be subject to any persona, liability or accountability by reason of the execution of this Agreement. 27. FORCE MAJEURE. The Grantee shall not be liable for delay in performance or failll"8 to complete the project, in whole or in part, due to the occurrence of any contingency beyond its control or the control of its contractors and subcontractors, including war or act of war whether an actual declaration thereof is made or not, act of terrorism impacting travei 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 which cannot be timely removed in a safe manner or any act of any governmental authority which prohibits the project from proceeding as described in the scope of services and incorporated references and which the Grantee has exercised reasonable ca-e 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 sha" not constitute a breach of the Agreement; however, the BOCC shall have the right to determine if there will be any. reciJction to the amount of funds due to the Grantee after consideration of aU refevant facts and circumstances surrounding the delay in performance or failure to complete the project within the contrad period. Upon demand of TOC or BOCe. the Grantee must furnish evidence of the causes of such delay or failure. BOCC shall not pay for any goods received or services provided after the date(s) described in paragraph 1 and Scope of Services, 28. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all 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 HEADINGS. Section headings have been inserted in this Agreement as a matter of convenience of 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 of this Agreement. I,!:~~SS WHEREOF, the 'parties hereto have caused this agreement to be executed ~daY; and yew first above written. (SEAl) BOARD OF COUNTY COMMISSIONERS ;G~CLERK OF MONROE COUNTY, FLORIDA By: ~it (~ .. Deputy Clerk Mayor/eha; an .'A'P.~~~;E'--i'... i ')J:e=__ 9(~y--'RNEY I '. { ~b/P;T 4 . . I / I ... [' \ I PART V: 1 PROJECT BUDGET AND TIMETABLE ~ ALL PROJECTS 1 1. Cost Estimates: List aU 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. AU phases and total estimated cost of the I entire project must be listed here. I Pha..':Conattuction: I Total cost of phase/project for which funds are requested: (not to exceed f 50% of the total project cost: a) Phase 1 b) Project --1254.000 I Percentage of TOC funds requested of Total Budget: (not to exceed 50% of the total project cost) a)Phase 1 f b)Project 50% ($127.00Q) f 2. Confirmation that signed, sealed bid process was utilized for acquiring architectural services, or that project does not require architectural services. Design development has been performed by the City Engineering Department Construction wUJ be bid out to a private contractor. 3. Matching Funds. List the sources and amounts of confirmed matching funds. (For items involving personne', 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. b} In-Kind (50%) limit: ~ . . I " ( I e) I 1 f) I g) 1 h) I Please indicate any critical dates and expra in why they are critical. , 4. What is the total project cost: $ 254.000 5. Length of time for project completion (months and year(s): -1a I months ~ r , , -~ ( EXHIBIT 8 PROPERTY REPORTING FORM FOR TDC CAPITAL PROJECT GRANT AWARD- GRANTEE: List non-expendable equipment/personal property (not including software) costing $),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 shaU establish a unique identifier for tracking aU 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 NOJCOST LOCATION/ADDRESS GRANTEE ASSIGNED CONTROL NUMBER Atfa(:h copy of invoice. bill of sale, or other documentation to support purchase. GRANTEE: Signed by Grantee's Project Manager: DATE: