Item D3BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: APRIL 16, 2008
Bulk Item: Yes X No
Division: TDC
Department:
Staff Contact Person/Phone #: Maxine Pacini
296-1552
AGENDA ITEM WORDING:
Approval of an Amendment to extend Agreement with the City of Key West for the White Street Pier
Rip Rap Installation Project.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
BOCC approved original Agreement at their meeting of October 18, 2006
BOCC approved Amendment to Agreement at their meeting of April 18, 2007
CONTRACT/AGREEMENT CHANGES:
Amendment to extend
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $ 43 750 BUDGETED: Yes X No
COST TO COUNTY: $43,750
REVENUE PRODUCING: Yes X No
APPROVED BY: County Atty X
DOCUMENTATION: Included X
DISPOSITION:
Revised 11 /06
SOURCE OF FUNDS: TDC
AMOUNT PER MONTH Year
OMB/Purchasing Risk Management X
Not Required
AGENDA ITEM #
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: City of Key west Contract # TDC #: 280
Effective Date: 10/18/06
Expiration Date: 3/31/09
Contract Purpose/Description:
Approval of an Amendment to extend Agreement with the City of Key West for the
White Street Pier Rip Rap Installation Project.
Contract Manager: Maxine Pacini 3523 TDC # 3
(Name) (Ext.) (Department/Stop #)
for BOCC meeting on 4/16/08 Agenda Deadline 4/1/08
CONTRACT COSTS
Total Dollar Value of Contract: $ 43,750
Budgeted? Yes® No ❑ Account Codes
Grant: $
County Match: $
Estimated Ongoing Costs: $_
(Not included in dollar value above
Current Year Portion: $ 24,450
117-77040-530340-T77K-596-Y-530340
ADDITIONAL COSTS
/yr For:
(eg. maintenance, utilities, janitorial, salaries, etc
CONTRACT REVIEW
Changes
Date In Needed
Division Director Yes❑ No[r
Risk Managem nt Yes❑ No❑
CG
M.B./Purchasing la 6 Yes❑ No[,
County Attorney Zz- C<� Yes❑ No2-- -- C. Hall
Comments:
OMB Form Revised 2/27/01 MCP 42
Date Out
.�;II2..Ioe
kA
AMENDMENT (2nd AMENDMENT) TO INTER -LOCAL AGREEMENT
THIS AMENDMENT to agreement dated the day of 2008, is entered into by
and between the Board of County Commissioners for Monroe County, on behalf of the Tourist
Development Council, and The City of Key West, a municipal corporation;
WHEREAS, there was an agreement entered into on October 18, 2006 between the
parties, awarding $43,750 to the City of Key West for the White Street Pier Rip Rap Installation
Project; and
WHEREAS, the agreement was amended on April 18, 2007 to extend the agreement to
March 31, 2008; and
WHEREAS, it has become necessary to request a further extension to agreement to
allow time to resolve permitting issues; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein the
parties agree to the amended agreement as follows:
1. The contract period as outlined in Paragraph 1 is extended to March 31, 2009.
2. The remaining provisions of the contract dated October 18, 2006 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) Board of County Commissioners
Attest: Danny L. Kolhage, Clerk of Monroe County
Deputy Clerk
CCJIA SEAL)
City Clerk
Print Nam
Mayor/Chairman
The City of Key
Mayor
Print NaIiie
Amendment # 1
City of Key West: White Street Pier Rip Rap
',Ct J T.J'- '� t:
t
THE CITY OF KEY WEST
P.O. BOX 1409
KEY WEST, FL 33041A409
February 21, 2008
Maxine Parini
Monroe County TDC
1201 Whitc St., Suite 102
Key West, FL 33041
Re: White Street Pier Rip Rap Installation
Dear District l Advisory Committee,
The City of Key West respectfully requests an extension of inter -local agreement for the
White Street Pier Rip Rap Project_
The City's engineering consultant, GM Selby, submitted the design and permit
applications for the above —mentioned project to the Army Corps of Engineers & the
Florida Department of Environmental Protection in early March 2007_ The FDEP issued
the City a letter of exemption on August 2, 2007. The USAGE did not acknowledge our
application for G months.
In. October 2007 the USAGE informed us the Florida Kcys National Marine Sanctuary is
requiring the transplantation of coral from the pier onto the new and existing rip rap as a
USACE permit condition. We have agreed to the procedure in an effort to maintain and
enhance the benthic communities in the keys waters,
At this time the City of Key West is requesting an extension of the irder-local agreement
for the White St Pier Rip Rap project to March 31, 2009. Phase I (permitting & design) of
the agreement has been reimbursed and a balance of $24,450 (Phase IT) remains for
construction.
Under the best of circumstances permitting is a lengthy process and in the future we will
seek to better quantify the permitting period on the TDC grant applications.
Sin ��,_.---- -
an uccino
Project Manager
CC: Annalise Mannix, CKW
Key to the Caribbean - Average yearly temperature 77 ° F.
AMENDME. J1st AMENDMENT) TO INTERLC I AGREEMENT
THIS AMENDMENT to agreement (Amendment) dated the � day of 2007, is
entered into by and between the Board of County Commissioners for Monroe ounty, Florida On behalf
of the Tourist Development Council, and The City of Key West, a municipal corporation;
WHEREAS, there was an agreement (Agreement) entered into on October 18, 2006, between
the parties, awarding $43,750 to the City of Key West for the White Street Pier Rip Rap Installation
Project; and
WHEREAS, It has become necessary to extend the Agreement for an additional period of time
to allow for completion of work; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties
agree to amend the Agreement as follows:
1. The contract period as outlined in Paragraph 1 is extended from September 30, 2007 to
March 31, 2008.
2. The remaining provisions of the Agreement dated October 1 e, 2006 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: Danny L Kolhage, Clerk
De uty Clerk
(SEAL)
Attest:
By: 1.
�herCity 'Coerk
�lS
f6
Amendment #1
City of Key West: White Street Pier Rip Rap
Board of County Commissioners
of Monroe County, Florida
By:
Mayor/Chairman
MONAOL COUNTY ATTORNEY
#—PPAOVPft AS TO FORM:
8U8�M-GRIMSLE
All1aTA CO NTY ATTORNEY
Dift
The City of Key West
By:
ayor
Print Name
1
Inter -local Agreement with The City of Key West
This AGREEMENT dated the l day of Oc�A 2006, is entered into by and
between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, hereinafter
"County" or "GRANTOR," on behalf of the TOURIST DEVELOPMENT COUNCIL, hereinafter
"TDC" and the City of Key West, hereinafter "Grantee".
WHEREAS, the third penny 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 for funding for the White Street Pier Rip Rap
Installation project; and
WHEREAS, the Grantor and TDC have determined that it is in the best interest of
the County, for purposes of promoting tourism and preserving the heritage of the community, to
improve the property for use as a fishing pier 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 18, 2006
through to September 30, 2007. 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 and 13 below.
2. SCOPE OF AGREEMENT. The Grantee shall provide the following scope of services:
Segment 1: Design, permitting and project management. Segment 2: Enter into contract for
construction services; Place 1000 feet of protective rip rap at a 2:1 slope along the Westside
and end of White Street Pier; Project management. 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. All work for which grant funds are to be
expended must be completed by the stated termination date of September 30, 2007 and all
invoices pertaining to this project shall be submitted to the Finance Department of Monroe
County no later than September 30, 2007 to be considered for payment.
a) There shall be a project manager to acknowledge receipt of goods or work performed.
This Project Manager shall be Janet Muccino, Project Manager, P.O. Box 1409, Key West,
FL 33041 (Telephone: 305-296-0232/Fax: 305-296-7909/E-mail: rflowers(cD-keywestcity.com).
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
TDC/County.
City of Key West — White Street Pier Rip Rap
Capital Project Funding FY 2007
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 undergo procurement processes for
those parts of the project to be contracted (not performed by the entity's employees), which
shall, at a minimum, require the acquisition of two written quotes for work expected to be under
$25,000 or a notarized statement as to why such written quotes were not feasible. For work
expected to be $25,000 or more, a competitive bid process must be performed. County
procurement policies and procedures may be used by the Grantee as a guideline. In the event
that the monetary contractual process commenced prior to the effective date of this funding
grant Agreement, and the guidelines above were not followed, Grantee shall submit with its
reimbursement request a notarized statement which details the Grantee's procurement efforts to
ensure the best service for the most economical price. Grantee shall provide Grantor detailed
documentation of the procurement process used.
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 $43,750 (Forty Three Thousand, Seven Hundred and Fifty Dollars) for materials
and services used to improve the property. 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 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.
City of Key West White Street Pier Rip Rap
Capital Project Funding FY 2007
2
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. Payment is a 50% (fifty
percent) reimbursement of the total cost of each segment of the project, 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. Included in said documentation shall be proof that the Grantee
has received the property, realty or personalty, 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 $25,000 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 $25,000 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, 2007. Invoices received after September 30, 2007 will not be considered for payment.
City of Key West - White Street Pier Rip Rap
Capital Project Funding FY 2007
3
b) 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
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, 2007. Invoices received after September 30, 2007 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
City of' Key West White Street Pier Rip Rap
Capital Project Funding FY 2007
4
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.
(ii) 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.
City ol' Key West White Street Pier Rip Rap
Capital Project Funding FY 2007
5
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 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 they 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 contractor. For breach or violation of this warranty, the Contractor
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 harmless/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
City of Key West - White Street Pier Rip Rap
Capital Project funding FY 2007
6
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 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,
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 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
City of Key West White Street Picr Rip Rap
Capital Project Funding FY 2007
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 he 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.
(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.
11. ANTI -KICKBACK. The Grantee warrants that no person has been employed or retained to
solicit or secure this Agreement upon an agreement or understanding for a commission,
percentage, brokerage or contingent fee, and that no employee or officer of the 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
City of Key West - White Street Pier Rip Rap
Capital Project Funding FY 2007
8
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, 2007. 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
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 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.
(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, 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.
City of Key West White Street Pier Rip Rap
Capital Proiect funding FY 2007
T
(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, courts costs, investigative,
and out-of-pocket expenses in appellate proceedings. 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.
(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 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 still not resolved to the
satisfaction of the parties, then any party shall have the right to seek such relief or remedy as
may be provided by this Agreement or by Florida law.
(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.
City ot'Key West White Street Pier Rip Rap
Capital Project Funding FY 2007
10
(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 a
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 a Agreement with any public
entity, and may not transact business with any public entity in excess of the threshold amount
provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of
being placed on the convicted vendor list.
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:
1. 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.
City of Key West White Street Pier Rip Rap
Capital Project Funding FY 2007
The Grantee, the Grantor and the TDC shalt 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:
• 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 295-3178 for details)
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 Holder and additional Insured for this contract.
Insurance 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 written notice to be given to either party under this Agreement or related
hereto shalt be addressed and delivered as follows:
For Grantee: Janet Muccino
City of Key West
P.O. Box 1409
Key West, FL 33041
For Grantor: Lynda Stuart
Monroe County Tourist Development Council
1201 White Street, Suite 102
Key West, FL 33040
and
Susan Grimsley, Asst. County Attorney
P.O. Box 1026
Key West, FL 33041-1026
22. CLAIMS FOR FEDERAL OR STATE AID. Contractor and County agree
City of Key West — White Street Pier Rip Rap
Capita( Project Funding FY 2007
12
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.
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
City of Key West - White Street Pier Rip Rap
Capital Project Funding FY 2007
13
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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
(SEAL)
Attest: Danny L. Kolhage, Clerk
Deputy Clerk
"e",�q f3f -E SEAL)
itt `-4
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151'vt t
Print Name
OR TWO WITNESSES
(1)
Print Name
City ot`Key West White Street Pier Rip Rap
Capital Project Funding FY 2007
Board of County Commissioners
of Monroe County
Mayor/Chair an
City of Key West
Mayo
Print Name
(2
Print Name
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
SU N M. GRIMSL Y
14 ASSISTA T�COUNTYATTORNEY
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