Item D04BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: OCTOBER 17, 2012
Bulk Item: Yes X No
Division: TDC
Department:
Staff Contact Person/Phone #:- Maxine Pacini
296-1552
AGENDA ITEM WORDING:
Approval of an Agreement with the Florida Keys History of Diving Museum, Inc. covering the
Exterior Improvements project in an amount not to exceed $119,283, DAC IV, FY 2013
Capital Resources.
ITEM BACKGROUND:
TDC to approve same at their meeting of July 31, 2012
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $119,283 — BUDGETED: Yes X No
COST TO COUNTY: $119,283 SOURCE OF FUNDS: TDC
REVENUE PRODUCING: Yes X No A OUNT PER MONTH— Year
APPROVED BY: County Atty X OMB/Pur asing X Risk Management X
DOCUMENTATION:
DISPOSITION:
Revised 11/06
Included X Not Required,
AGENDA ITEM #
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
I Contract with: The Florida Keys History
Of Diving Museum, Inc.
Contract #
Effective Date:
Expiration Date:
1053
10/17/12
9/3 0/13
Contract Purpose/Description:
Approval of an Agreement with the Florida Keys History of Diving Museum, Inc.
covering the Exterior Improvements project in an amount not to exceed
$119,283, DAC IV, FY 2013 Capital Resources.
Contract Manager: Maxine Pacini 3523 TDC 4 3
(Name) (Ext.) (Department/Stop 4)
for BOCC meeting on 10/17/12 Agenda Deadline 10/2/12
CONTRACT COSTS
Total Dollar Value of Contract: $ 119,283 Current Year Portion: $
Budgeted? Yes® No F-1 Account Codes: 120-70040-530TB30-498-X-530340
Grant: $
County Match: $
ADDITIONAL COSTS
Estimated Ongoing Costs: $-/yr For:
(Not included in dollar value above) (eg. maintenance4
iti
etc.
CONTRACT REVIEW
Changes
Dat Out
Division Director
Tate In Needed wei
(esF-j NoFj--�
Risk Management
Yes[:] No
O.M.B./Pur4asing
YesF-1 No7'
County Attorney
IYes[:] NoJ2--� C. Hall
L
-7 13c,11 1-2--
Comments:
OMB Form Revised 2/27/01 MCP #2
Grant Award Agreement
THIS AGREEMENT (agreement) is entered into this day of _,
2012 by and between MONROE COUNTY, a political subdivision of the State of Florida (County or
Grantor) and The Florida Keys History of Diving Museum, Inc. a not for profit business organized
and operating under the laws of the state of Florida (Grantee).
WHEREAS, the district pennies 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, beach
improvements and beach park facilities which are publicly owned and operated or owned and
operated by not -for -profit corporations, and
WHEREAS, Grantee has applied to TDC District IV for funding for the Exterior
Improvements project at the Florida Keys History of Diving Museum, 82990 Overseas Highway,
Islamorada, Florida, 33036; and
WHEREAS, the Grantor and Tourist Development Council (TDC) have determined that
it is in the best interest of the County, for purposes of promoting tourism and preserving the heritage
of the community, to attract tourists, and improve the property for use as a museum that is open to
the public;
NOW, THEREFORE, in consideration of the mutual covenants and payments
contained herein, the Grantee and the Grantor have entered into this agreement on the terms and
conditions as set forth below.
1. GRANT AGREEMENT PERIOD. This agreement is for the period of October 17, 2012
through to September 30, 2013. This agreement shall remain in effect for the stated period unless
one party gives to the other written notification of termination pursuant to and in compliance with
paragraphs 7, 12 or 13 below.
2. SCOPE OF AGREEMENT. The representations made by the Grantee in its proposal
submitted to the TDC are incorporated herein by reference. The Grantee shall provide the following
scope of services: Materials and labor required to complete the exterior improvements project.
Segment(s) of the work is/are more particularly described in Exhibit(s) A, detailing the work and the
cost allocable to each segment, attached hereto, and incorporated herein by reference. Anything
not referenced within exhibit A will not be reimbursed. All work for which grant funds are to be
expended must be completed by the stated termination date of September 30, 2013 and all invoices
pertaining to this project shall be submitted to the Finance Department of Monroe County no later
than September 30, 2013 to be considered for payment. Acknowledgement: Grantee shall be
required to permanently display and maintain at Grantee's expense, public acknowledgement of the
support of the Monroe County Tourist Development Council in a publicly prominent area of their
facility in the following form: "This project was made possible with the financial support of the Monroe
County Tourist Development Council." If the Grantee has already complied with this requirement
through previous funding, said acknowledgement fulfills this condition. A photograph of said
acknowledgment shall be provided with the final request for reimbursement outlined in Exhibit A of
this agreement.
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a.) There shall be a project manager to acknowledge receipt of goods or work performed.
This Project Manager shall be Dr. Sally Bauer, 82990 Overseas Hwy. Islamorada, FL 33036
(e-mail: 5aiIy@Qivin_qMuseum.orq /Tel: (305) 664-9737). Should there be a change in the
project manager specified in the Grantee's application, a new project manager shall be
designated, and notice with new contact information shall be provided in writing to the TDC
administrative office.
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 any and all contracts and shall require
the contractor(s) to comply with all the terms of this contract. Should Grantee contract the
work and then decrease the scope of work to be performed by a contractor, Grantee shall
provide County with an amended contract executed by Grantee and its contractor.
(i) A Grantee which is a governmental entity shall comply with the procurement
regulations and policies to which it is subject, and shall provide Grantor documentation
of the procurement requirements applicable to the project and compliance therewith.
(ii) A Grantee which is a not -for -profit entity shall use procurement processes for those
parts of the project to be contracted (not performed by the entity's employees) as
follows. For work expected to be under $50,000, the not -for -profit shall document in the
file two written quotes or a notarized statement as to why such written quotes were not
feasible for the goods or services. For work expected to be $50,000 or more, a
competitive bid process must be performed following Monroe County's procurement
policies and procedures must be followed, unless the commodities or services will be
provided by a "sole source" provider, in which case the not -for -profit must submit a
notarized statement with its request for payment explaining why the vendor is the only
source for the commodities or services.
c.) Grantee shall exercise good internal controls to assure that the project as described in
the funding application shall be completed on a timely basis within the proposed budget and
shall provide to County any certifications, including those by the architect, engineer, contractor
or an independent consultant if necessary, required to establish that materials which are
purported to be applied to the project are in fact so applied. Further verification shall be
required to show that equipment and other fixtures and personal property covered by this
agreement are delivered to and installed in the project site. When any permit is required by any
governmental agency, copies of plans and other documents which are submitted to the
applicable agency shall be submitted to the County Engineering Division to enable verification
that the scope of services under this agreement has been provided.
3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to
exceed $119,283 (TDC District IV funding) for materials and services used to improve the property
(Total in kind services should not exceed $11,216 or 4.7% of total project cost). Reimbursement
request must show that Grantee has paid in full for materials and services relating to the segment
prior to seeking the 50% (fifty percent) reimbursement from Grantor. Payment shall be 50% (fifty
percent) reimbursement of the total cost of the segment, subject to the cap on expenditures for that
segment as set forth in Exhibit A. Reimbursement can be sought after each segment of the
agreement is completed and signed by the Monroe County Engineering Department as outlined in
3.a. The Board of County Commissioners and the Tourist Development Council assume no liability to
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fund this agreement for an amount in excess of this award. Monroe County's performance and
obligation to pay under this agreement is contingent upon an annual appropriation by the BOCC.
a.) Payment shall be made upon the completion of a specific segment as outlined in the
Scope of Services and Exhibit A. Payment for expenditures permissible by law and County
policies shall be made through reimbursement to Grantee upon presentation of Application for
Payment Summary, AIA Document G702 or similar certification as required below for
governmental entities and not -for -profit entities, invoices, canceled checks and other
documentation necessary to support a claim for reimbursement. Included in said
documentation shall be proof that the Grantee has received the property, realty or personally,
for each segment of agreement as outlined in Exhibit A and paid an amount equal to or greater
than the amount invoiced to the Grantor. It shall be necessary for the Grantee to contact the
County Engineering Division and to arrange for inspections upon the completion of each
segment. The documentation needed to support the payment request shall be in the form
necessary for submission and available to the County Engineer at the time of inspection. All
submissions for payment shall have a proposed schedule of values for segment(s) and
indicate the percentage of completion of the overall project as of the submission. This
document should be signed by the project architect, engineer, general contractor or project
manager. Photos of the progress of the work shall also be submitted with the payment
application. It shall be the responsibility of the project architect, engineer, general contractor or
project manager to initiate the communication with the Monroe County Engineering Division to
facilitate the inspection(s) of the segment of the project. All submissions requesting payment
shall be approved in writing, and signed, by the Monroe County Engineering Division as to the
completion of the segment of the project for which payment is requested. The application for
payment document must be certified through a statement signed by an officer of the
organization and notarized, declaring that representations in the invoice are true and factual.
Grantee shall also provide partial releases of liens or certifications of non -lien if applicable.
Grantor shall retain 10% of any payment on work in progress until the Grantee has provided a
Final Release of Lien for each vendor/Contractor for whom payment is requested. For
projects exceeding $50,000 in TDC funding under this agreement, final payment will not be
made until the following documents are complete and submitted to the Grantor:
AIA Document
G-702 Application for Payment Summary
AIA Document
G-704 Certificate of Substantial Completion
AIA Document
G-706 Contractor's Affidavit of Debts & Claims
AIA Document
G-706A Contractor's Affidavit of Release of Liens
AIA Document
G-707 Consent of Surety to Final Payment (when applicable)
Final Release of Lien or Affidavit and Partial Release of Lien
For projects for which TDC funding under this agreement is $50,000 or less, the AIA
documentation is not required, but sufficient documentation must be submitted to County to
provide similar assurances that the work has been completed and contractors/suppliers paid.
All payment requests must be submitted no later than the completion of project of September
30, 2013. Invoices received after September 30, 2013 will not be considered for payment.
b.) If in -kind services were noted within your application, and you are applying them to this
project, documentation shall be submitted to the TDC Administrative Office to show the receipt
and application of in -kind donations of goods, professional services, and materials. Said
documentation should include invoices, bills of lading, etc., and be verified as received and
Florida Keys History of Dive Museum — Exterior Improvements
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applied to the project through a notarized statement of the project architect, engineer, general
contractor or project manager. The receipt and application to the project of volunteer labor are
to be documented and verified by notarized signature of the project architect, engineer,
general contractor, or project manager, and said documentation submitted to the TDC
Administrative Office. All submissions shall identify the items included in Exhibit A and
Grantee shall complete the Application for Payment form which is provided within the
payment/reimbursement kit provided to the Grantee, listing the schedule of values which are
sought to be reimbursed and shall indicate the percentage of completion of the overall 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 included in any payment request. The
Project Manager shall certify delivery to the project site and installation therein of any goods or
services provided other than through an architect, engineer or contractor. All work performed
and goods received on site and incorporated into the project shall be verified by one of the
foregoing. Submission of any documentation which is untrue, falsified, or otherwise
misrepresents the work which has been completed, paid, or donated shall constitute a breach
of agreement, for which breach the contract may be immediately terminated at the discretion of
the County, whose decision shall be final.
c.) Grantee must submit all documentation for final payment on or before the termination
date of this grant of September 30, 2013. Invoices received after September 30, 2013 will not
be considered for payment.
d.) At any time that the documentation requirement policies of Monroe County are revised,
such as to require annual inventory reports for equipment purchased under a TDC capital
project grant, Grantee shall comply thereafter with such increased requirements, or further
funding under the agreement may be terminated by County.
e.) Upon successful completion of this Grant agreement, the Grantee may retain ownership
of the real and personal property acquired and/or improved with funding under this Grant
agreement. However, the Grantee shall maintain, preserve, and operate the property which
was acquired or improved under this agreement for the uses and purposes which qualified the
Grantee for tourist development tax funding. Grantee shall complete and sign a Property
Reporting Form (provided within payment/reimbursement package) for personal property and
forward said completed form with the appropriate invoice to the TDC Administrative Office.
Real property acquired or improved through funding under this agreement shall remain
dedicated for the purposes set forth herein or for other purposes which promote tourism and
ownership of said property shall be retained by the Grantee. The following terms shall apply:
(i) The Grantee shall have the use of the property, including both realty and
personalty acquired with funding under this agreement, at the project site for so long as
the facility is operated by Grantee, open to the public, and has a primary purpose of
promoting tourism. At such time as any of the conditions in the preceding sentence
shall cease to exist, the Grantee shall transfer ownership and possession of equipment
and personal property to a local government or another not -for -profit organization which
is a facility for which tourist development taxes may be used pursuant to Florida Statute
with prior approval from TDC and BOCC.
Florida Keys History of Dive Museum — Exterior Improvements
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(1i) At any time that the Grantee: (a) elects to stop the project or otherwise decide not
to place into service for tourist -related purposes the facility acquired, constructed, or
renovated with tourist development tax funding, (b) demolishes the project facility or
divests itself of ownership or possession of the real property, or (c) ceases the use of
the property with a primary purpose of promoting tourism, Grantee shall, pursuant to
the formula set forth hereafter, refund to the County the Tourist Development funding,
This provision shall survive the termination date of all other provisions of this contract
for a period of ten years. Should the demolition, transfer of ownership, or change to a
non -tourist related purpose 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
procedures to keep the real and personal property in good operating condition.
(iv) The Grantee is responsible for any loss, damage, or theft of, and any 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 keep such records as are necessary to
document the performance of the agreement and expenses as incurred, and give access to these
records at the request of the TDC, the County, the State of Florida or authorized agents and
representatives of said government bodies. The Grantee shall also provide such access to the
personal property and equipment purchased under this agreement. It is the responsibility of the
Grantee to maintain appropriate records in accordance with generally accepted accounting principles
consistently applied to insure a proper accounting of all funds and expenditures. The Grantee
understands that it shall be responsible for repayment of any and all audit exceptions which are
identified by the Auditor General for the State of Florida, the Clerk of Court for Monroe County, the
Board of County Commissioners for Monroe County, or their agents and representatives. In the
event of an audit exception, the current fiscal year grant award or subsequent grant awards will be
offset by the amount of the audit exception. In the event the grant is not renewed or supplemented in
future years, the Grantee will be billed by the Grantor for the amount of the audit exception and shall
promptly repay any audit exception.
a.) Public Access. The County and Grantee shall allow and permit reasonable access to,
and inspection 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 County and Grantee in conjunction with this agreement; and the County shall 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 shall be only amended in writing and approved by the Board of County Commissioners for
Monroe County. The terms, covenants, conditions, and provisions of this agreement shall bind and
inure to the benefit of the County and Grantee and their respective legal representatives, successors,
and assigns.
6. INDEPENDENT CONTRACTOR. At all times and for all purposes hereunder, the Grantee is
an independent contractor and not an employee of the Board of County Commissioners of Monroe
County. No statement contained in this agreement shall be construed as to find the Grantee or any of
its employees, contractors, servants or agents to the employees of the Board of County
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Commissioners of Monroe County, and they shall be entitled to none of the rights, privileges or
benefits of employees of Monroe County.
a.) No Personal Liability. No covenant or agreement contained herein shall be deemed to
be a covenant or agreement of any member, officer, agent or employee of Monroe County in
his or her individual capacity, and no member, officer, agent or employee of Monroe County
shall be liable personally on this agreement or be subject to any personal liability or
accountability by reason of the execution of this agreement.
7. COMPLIANCE WITH LAW. In carrying out its obligations under this agreement, the Grantee
shall abide by all statutes, ordinances, rules and regulations pertaining to or regulating the provisions
of this agreement, including those now in effect and hereafter adopted. Any violation of said statutes,
ordinances, rules or regulations shall constitute a material breach of this agreement and shall entitle
the Grantor to terminate this agreement immediately upon delivery of written notice of termination to
the Grantee.
8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS AGREEMENT. The
Grantee shall include in all agreements funded under this agreement the following terms:
a.) Anti -discrimination. Contractor agrees that it will not discriminate against any
employees or applicants for employment or against persons for any other benefit or service
under this agreement because of their race, color, religion, sex, national origin, or physical or
mental handicap where the handicap does not affect the ability of an individual to perform in a
position of employment, and to abide by all federal and state laws regarding non-
discrimination.
b.) Anti -kickback. Contractor warrants that no person has been employed or retained to
solicit or secure this agreement upon an agreement or understanding for a commission,
percentage, brokerage or contingent fee, and that no employee or officer of the Contractor has
any interest, financially or otherwise, in County. For breach or violation of this warranty, the
County shall have the right to annul this agreement without liability or, in its discretion, to
deduct from the agreement price or consideration, the full amount of such commission,
percentage, brokerage or contingent fee. Contractor acknowledges that it is aware that
funding for this agreement is available at least in part through the County and that violation of
this paragraph may result in the County withdrawing funding for the Project.
c.) Hold harm less/indemnification. Contractor acknowledges that this agreement is funded
at least in part by the County and agrees to indemnify and hold harmless the County and any
of its officers and employees from and against any and all claims, liabilities, litigation, causes
of action, damages, costs, expenses (including but not limited to fees and expenses arising
from any factual investigation, discovery or preparation for litigation), and the payment of any
and all of the foregoing or any demands, settlements or judgments (collectively claims) arising
directly or indirectly from any negligence or criminal conduct on the part of Contractor in the
performance of the terms of this agreement. The Contractor shall immediately give notice to
the County of any suit, claim or action made against the Contractor that is related to the activity
under this agreement, and will cooperate with the County in the investigation arising as a result
of any suit, action or claim related to this agreement.
d.) Insurance. Contractor agrees that it maintains in force at its own expense a liability
insurance policy which will insure and indemnify the Contractor and the County from any suits,
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claims or actions brought by any person or persons and from all costs and expenses of
litigation' brought against the Contractor for such injuries to persons or damage to property
occurring during the agreement or thereafter that results from performance by Contractor of
the obligations set forth in this agreement. At all times during the term of this agreement and
for one year after acceptance of the project, Contractor shall maintain on file with the County a
certificate of the insurance of the carriers showing that the aforesaid insurance policy is in
effect. The following coverage's shall be provided:
1. Workers Compensation insurance as required by Florida Statutes.
2. Commercial General Liability Insurance with minimum limits of $500,000 per
occurrence for bodily injury, personal injury and property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000 combined
single limit per occurrence.
The Contractor, the County and the TDC shall be named as additional insured, exempt
workers compensation. The policies shall provide no less than 30 days notice of cancellation,
non -renewal or reduction of coverage.
At all times during the term of this agreement and for one year after acceptance of the project,
Contractor shall maintain on file with the County a certificate of insurance showing that the
aforesaid insurance coverage's are in effect.
e.) Licensing and Permits. Contractor warrants that it shall have, prior to commencement of
work under this agreement and at all times during said work, all required licenses and permits
whether federal, state, County or City.
f.) Right to Audit. The Contractor shall keep such records as are necessary to document
the performance of the agreement and expenses as incurred, and give access to these
records at the request of the TDC, the County, the State of Florida or authorized agents and
representatives of said government bodies.
9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold
harmless the BOCC/TDC and the 3406 North Roosevelt Blvd. Corporation or any of its officers and
employees from and against any and all claims, liabilities, litigation, causes of action, damages, costs,
expenses (including but not limited to fees and expenses arising from any factual investigation,
discovery or preparation for litigation), and the payment of any and all of the foregoing or any
demands, settlements or judgments arising directly or indirectly under this agreement. The Grantee
shall immediately give notice to the Grantor of any suit, claim 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 result of any suit, action or claim related to this agreement.
a.) Non -Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida
Statutes, the participation of the 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 coverage 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.
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b.) Privileges and Immunities. All of the privileges and immunities from liability, exemptions
from laws, ordinances, and rules and pensions and relief, disability, workers' compensation,
and other benefits which apply to the activity of officers, agents, or employees of any public
agents or employees of the County, when performing their respective functions under this
agreement within the territorial limits of the County shall 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 discrimination
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
further action 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 to
nondiscrimination. 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, color or national origin; 2) Title IX of the
Education Amendment of 1972, as amended (20 USC ss. 1681-1683, 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; 4) The Age
Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination on
the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended,
relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive 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 USC ss. 690dd-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 USC s. et seq.),
as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The
Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time,
relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions
in any Federal or state statutes which may apply to the parties to, or the subject matter of, this
agreement.
lt ANTI -KICKBACK. The Grantee warrants that no person has been employed or retained to
solicit or secure this agreement upon an agreement or understanding for a commission, percentage,
brokerage or contingent fee, and that no employee or officer of the County or TDC has any interest,
financially or otherwise, in the said funded project, except for general membership. For breach or
violation of this warranty, the 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 terminate on September 30, 2013. Termination prior
thereto shall occur whenever funds cannot be obtained or cannot be continued at a level sufficient to
allow for the continuation of this agreement pursuant to the terms herein. In the event that funds
cannot be continued at a level sufficient to allow the continuation of this agreement pursuant to the
terms specified herein, this agreement may then be terminated immediately by written notice of
termination delivered in person or by mail to Grantee. The Grantor may terminate this agreement
without cause upon giving written notice of termination to Grantee. The Grantor shall not be obligated
to pay for any services or goods provided by Grantee after Grantee has received written notice of
termination.
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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 shall not be deemed or considered as a continuing waiver and
shall not operate to bar or prevent the Grantor from declaring a forfeiture for any succeeding breach
either of the same conditions or of any other conditions. Failure to provide Grantor with certification
of use of matching funds or matching in -kind services at or above the rate of request for
reimbursement or payment 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. This agreement is not subject to arbitration.
Mediation proceedings initiated and conducted pursuant to this agreement shall be in accordance
with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit
court of Monroe County.
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 shall lie in the appropriate court or before the appropriate administrative body in Monroe
County, Florida.
b.) 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 each remaining term,
covenant, condition and provision of this agreement shall be valid and shall be enforceable to
the fullest extent permitted by law unless the enforcement of the remaining terms, covenants,
conditions and provisions of this agreement would prevent the accomplishment of the original
intent of this agreement. The County 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.
c.) Attorney's Fees and Costs. The County and Grantee agree that in the event any cause
of action or administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an
award against the non -prevailing party, and shall include attorney's fees, court costs,
investigative, and out-of-pocket expenses in appellate proceedings.
d.) Adjudication of Disputes or Disagreements. County and Grantee agree that all disputes
and disagreements shall be attempted to be resolved by meet and confer sessions between
representatives of each of the parties. 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
Florida Keys History of Dive Museum — Exterior Improvements
FY 2013 Funding
Contract 1D#: 1053
9
may be provided by this agreement • by Florida law. This agreement shall not •" subject to
?rbitrati6n.
e.) 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 Grantee agree to participate, to the extent required by the other party, in all
proceedings, hearings, processes, meetings, and other activities related to the substance of
this agreement or provision of the services under this agreement. County and Grantee
specifically agree that no party to this agreement shall be required to enter into any 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 former County officer or employee in violation of Section 2 or Ordinance No. 10-
1990 or any County officer or employee in violation of Section 3 of Ordinance No. 10-1990. For
breach or violation of the provision the 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 and 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, individual, or firm, other than a bona fide employee working solely for it, any
fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this agreement. For the breach or violation of the provision, the Grantee agrees that the
County shall have the right to terminate this agreement without liability and, at its discretion, to offset
from monies owed, or otherwise recover, the 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 perform 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 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 ENTITY CRIME STATEMENT: A person or affiliate who has been placed on the
convicted vendor list following a conviction for public entity crime may not submit a bid on an
agreement to provide any goods or services to a public entity, may not submit a bid on an agreement
with a public entity for the construction or repair of a public building or public work, may not submit
bids on leases of real property to public entity, may not be awarded or perform work as a contractor,
supplier, sub -contractor, or consultant under an 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, Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being
placed on the convicted vendor list. By executing this document grantee warrants that it is in
compliance with this paragraph.
Florida Keys History of Dive Museum — Exterior Improvements
FY 2013 Funding
Contract ID#: 1053
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 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, claims or actions
brought by any person or persons and from all costs and expenses of litigation brought against the
Grantee for such injuries to persons or damage to property occurring during the agreement or
thereafter 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 project, Grantee
shall maintain on file with the Grantor a certificate of the insurance of the carriers showing that the
aforesaid insurance policy is in effect. The following coverage's shall be provided:
Workers Compensation insurance as required by Florida Statutes.
2. Commercial General Liability Insurance with minimum limits of $500,000 Combined
Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be
$250,000 per Person $500,000 per occurrence $50,000 property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000 combined
single limit per occurrence.
The Grantee, the Grantor and the TDC shall be named as additional insured, except workers
compensation. The policies shall provide no less than 30 days notice of cancellation, non -renewal or
reduction of coverage. Grantee shall provide to the County, as satisfactory evidence of the required
insurance, including the insurance policy application and either:
0 Original Certificate of Insurance, OR
* Certified copy of the actual insurance policy, OR
Certificate of Insurance e-mailed from Insurance Agent/Company to County Risk
Management - Telephone Maria Slavik at (305) 295-3178 for details (Certificates
can be e-mailed directly from the insurance agency to: S ' lavik-
Maria61VIon roeCou ntv-FL, Gov — The e-mail must state that this is a certificate for a
TDC project and should be forwarded to Maxine Pacini at the TDC administrative
office)
An original certificate or a certified copy of any or all insurance policies required by this contract shall
be filed with the Clerk of the BOCC prior to the contract being executed by the Clerks office. The
Insurance policy must state that the Monroe County BOCC and Monroe County TDC is the Certificate
Florida Keys History of Dive Museum — Exterior Improvements
FY 2013 Funding
Contract ID#: 1053
il
Holder and additional Insured for this contract (certificate only for worker's compensation coverage).
Insurance information should be mailed to:
Monroe County Board of County Commissioners
c/o Risk Management
P.O. Box 1026
Key West, FL 33041
21. NOTICE. Any notice required or permitted under this agreement shall be in writing and had
delivered or mailed, postage prepaid, to the other party by certified mail, returned receipt requested to
the following:
F-or Grantee: Dr. Sally Bauer
82990 Overseas Hwy
Islamoracla, FL 33036
For Grantor: Lynda Stuart
Monroe County Tourist Development Council
1201 White Street, Suite 102
Key West, FL 33040
M.9
Cynthia Hall, 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
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 to or benefit of any service or program contemplated hereunder, and the County and the
Grantee agree that neither the County nor the Grantee or any agent, officer, or employee of either
shall have the authority to inform, counsel, or 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.
Florida Keys History of Dive Museum — Exterior Improvements
FY 2013 Funding
Contract 1D#: 1053
12
25. ATTESTATIONS. Grantee agrees to execute such documents as the County may reasonably
require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace
Statement.
26. NO PERSONAL LIABILITY. No covenant or agreement contained herein shall be deemed to
be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or
her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable
personally on this agreement or be subject to any personal liability or accountability by reason of the
execution of this agreement.
27. FORCE MAJEURE. The Grantee shall not be liable for delay in performance or failure to
complete the project, in whole or in part, due to the occurrence of any contingency beyond its control
or the control of its contractors and subcontractors, including war or act of war whether 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 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 care in the prevention thereof. However, lack of planning for
normal and expected weather conditions for the time of year the project is to be executed shall not
constitute an act of God excusing a delay. Any delay or failure due to the causes stated shall not
constitute a breach of the agreement; however, the BOCC shall have the right to determine if there
will be any reduction to the amount of funds due to the Grantee after consideration of all relevant
facts and circumstances surrounding the delay in performance or failure to complete the project within
the contract period. Upon demand of TDC or BOCC, the Grantee must furnish evidence of the
causes of such delay or failure. BOCC shall not pay for any goods received or services provided
after the date(s) described in paragraph 1 and Scope of Services.
28. EXECUTION IN COUNTERPARTS. This agreement may be executed in any 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
signing 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.
Florida Keys History of Dive Museum — Exterior Improvements
FY 2013 Funding
Contract 1D#: 1053
13
IN WITNESS WHERE
=3=
(SEAL)
Aftest: Danny L. Kolhage, Clerk
Deputy Clerk
(CORPORATE SEAL)
Attest:
BY.
Secretary
Print Nam
Date:
OR TWP WITNESSES
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Print Name
Date:
1 01 T-fil T','T-q ',*I a IzI IN
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MayodChairmain
The Florida Kays HIMMy of Diving Museum, Inc.
Print Name
Date:
Date.
MON E COUNTY ATTORNEY
AP
1A L. MAI;L
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Florida Keys Hisby of Dore Museum — Exterior Improvements
FY 2013 Funding
Conftd 1D* 1063
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