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02/13/2003GRANT OF FUNDS ; RECEIVED JAN 2 9 2003 f 2003, is entered into b and between This AGREEMENT dated the %' day of 1- " �- y the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, hereinafter "County," on behalf of the TOURIST DEVELOPMENT COUNCIL, hereinafter "TDC," and Florida Keys Wild Bird Rehabilitation Center, a Florida not -for -profit corporation, hereinafter " Contractor". 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 and beaches which are publicly owned and operated or owned and operated by not -for -profit corporations, and WHEREAS, Contractor has applied for funding for the Exhibit Habitat project to repair and improve the Exhibit Habitat hereinafter "the Property"; and WHEREAS, the County 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 repair and improve the property for use as a nature center open to the public; NOW, THEREFORE, in consideration of the mutual covenants and payments contained herein, the Contractor and the County have entered into this agreement on the terms and conditions as set forth below. 1. AGREEMENT PERIOD. This agreement is for the period February 19, 2003 through September 30, 2003. 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 Contractor shall provide such services and materials as are necessary to replace sections of rusted galvanized fencing on habitats; replace old viewing windows and dispose of old fencing and windows. The recipient of TDC capital project funding shall designate a project manager if no licensed architect, engineer or general contractor is involved in the project. If the project is performed by County or City personnel, the project manager shall be the Engineer, Building Official or Construction Manager of that local government. 3. AMOUNT OF AGREEMENT AND PAYMENT. The County shall provide an amount not to exceed $3,860 in reimbursement for materials and services used to improve and repair the property. 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. a). Payment for expenditures permissible by law and County policies shall be made through reimbursement to Contractor upon presentation of invoices, canceled checks and other documentation necessary to support a claim for reimbursement. Included in said documentation shall be proof that the Contractor has received and applied to the property matching funds equivalent to or greater than the amount invoiced to the County. Submission of invoices must be Florida Keys Wild Bird Rehabilitation Center Capital Project Resources FY 2003 certified through a statement signed by an officer of the organization and notarized, declaring that representations in the invoice are true and factual. b) Application of matching funds requires actual payment of the matching funds, or, in the alternative, a commitment of said funds and that the portion of the project for which the matching funds are to be used has been sufficiently completed to require payment of said matching funds. Mere obligation through execution of a contract or approval of a budget item to be paid from matching funds will not suffice. c) 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 should have a proposed schedule of values for phases 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. 4. REPORTS. The Contractor shall provide financial reports in summary of activity on forms provided or approved by the TDC, and quarterly narrative reports of activity under the approved work plan. 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. It is the responsibility of the Contractor to maintain appropriate records to insure a proper accounting of all funds and expenditures. The Contractor 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 Contractor will be billed by the County for the amount of the audit exception and shall promptly repay any audit exception. 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. 6. INDEPENDENT CONTRACTOR. At all times and for all purposes hereunder, the Contractor 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 Contractor 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. 7. COMPLIANCE WITH LAW. In carrying out its obligations under this agreement, the Contractor 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 County to terminate this agreement immediately upon delivery of written notice of termination to the Contractor. Florida Keys Wild Bird Rehabilitation Center Capital Project Resources FY 2003 8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS AGREEMENT. The Contractor 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 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. Florida Keys Wild Bird Rehabilitation Center Capital Project Resources FY 2003 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. 9. HOLD HARMLESS/INDEMNIFICATION. The Contractor 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 Contractor shall immediately give notice to the County of any suit, claim or action made against the County 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. 10. ANTI -DISCRIMINATION. The Contractor agrees that they will not discriminate against any of their employees or applicants for employment or against persons for any benefit or service 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. 11. ANTI -KICKBACK. The 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 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 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. 12. TERMINATION. This agreement shall terminate on September 30, 2003. 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 Contractor. The County may terminate this agreement without cause upon giving written notice of termination to provider. The County shall not be obligated to pay for any services or goods provided by Contractor after Contractor has received written notice of termination. 13. TERMINATION FOR BREACH. The County 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 Contractor shall not be deemed or considered as a continuing waiver and shall not operate to bar or prevent the County from declaring a forfeiture for any succeeding breach either of the same conditions or of any other conditions. Failure to provide County with certification of use of matching funds or matching in -kind services at or above the rate of request for reimbursement or payment by is a breach of agreement, for which the County may terminate this agreement upon giving written notification of termination. Florida Keys Wild Bird Rehabilitation Center Capital Project Resources FY 2003 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 Contractor and the County. 15. CONSENT TO JURISDICTION. This agreement, its performance, and all disputes arising hereunder, shall be governed by the laws of the State of Florida, and both parties agree that the proper venue for any actions shall be in Monroe County. 16. ETHICS CLAUSE: Contractor 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 County 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. 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: Contractor 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 Contractor below certifies and warrants that the Contractor'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 Contractor, and this agreement has been approved by the Board of Directors of Contractor or other appropriate authority. 19. 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. 20. 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. Florida Keys Wild Bird Rehabilitation Center Capital Project Resources FY 2003 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, except 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. 21. NOTICE. Any written notice to be given to either party under this agreement or related hereto shall be addressed and delivered as follows: For Florida Keys Wild Bird Rehabilitation Center: Bruce Horn 93600 Overseas Hwy Tavernier, FL 33070 For County: Lynda Stuart Monroe County Tourist Development Council 1201 White Street, Suite 102 Key West, FL 33040 and Suzanne Hutton, Asst. County Attorney P.O. Box 1026 Key West, FL 33041-1026 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first above written. (SEAL) ATTEST: DANMC_.-_-:_Q_LHAGE, CLERK :- Joshua P Gallo • My Commission DD158802 (SEAL) �,*F Expires ocftw 16, 2006 ATTEST: By: Secretary Florida Keys Wild Bird Rehabilitation Center Capital Project Resources FY 2003 BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA S/.00�; 5n ✓mow Mayor/Chairman Florida Keys Wild Bird Rehabilitation Center B Vice President *s`c vrrv.N" APPROVED AS TO FORM AND LEJr&AL SUFF1CiEN Y 'A BY tftelp NNE A. UTTO SPECIAL BOARD MEETING FLORIDA KEYS WILD BIRD REHABILITATION CENTER, INC. Convened: January 24, 2003 Present: Susan Sorensen, VP; Bruce Horn, Sec.; Terry Timberlake, Tr. (By telephone); Absent: Richard Nelson, Pres. (Traveling by motor home). Subject: The TDC Grant for the Exhibit Habitat Project. Richard is unavailable, exploring the far west with his wife in their motor home and evidently out of cell phone range. The Agreement for this grant specifies that the President sign the agreement and that the signed copies be returned no later than Friday, January 31 st In view of the this time constraint and the difficulty in locating and getting the Agreement to Richard, this special meeting is convened pursuant to the By -Laws, Section 3, with Terry's participation by telephone from Loxahatchee, Florida, pursuant to Section 5., to authorize Susan Sorensen to execute this Agreement. Bruce Horn so moved, the motion was seconded by Terry Timberlake, and passed unanimously by voice vote. f BY-LAWS OF FLORIDA KEYS WILD BIRD REHABILITATION CENTER, INC. (A Florida Not -for -Profit Corporation) ARTICLE I MEMBERS l.' Membership. The members of the Corporation shall consist of the initial directors of the corporation and thereafter such persons who are elected as members by majority of the members of the corporation. 2. Termination of Membership. Membership shall be terminated by the death or resignation of a member or expulsion of -a member by a majority of the members of the Corporation. 3. Annual Meetings. The annual meeting of members of the Corporation shall beheld on the first Tuesday of October. Notice of the time and place of holding the annual meeting shall be given personally or mailed by first class mail to each member at least ten days previous thereto. The meeting shall be held at the office of the corporation or at such other place fixed by the directors. 4. Special Meetings. Special meetings of members may be called by the President at any time on his own initiative or by the President or Secretary upon request of three members to such office made in writing. Notice of the meeting shall be given personally or mailed by first class mail to each member at least ten days previous to the meeting, and at such special meeting there shall only be considered such business as is specified in the notice of meeting. Unless otherwise provided by the directors, such meetings shall be held at the office of the corporation. 5. Quorum. At all meetings of the corporation, either regular or special, a presence of a majority of all members in good standing shall constitute a quorum. If a quorum is not present, the presiding officer may adjourn the meeting to a day and hour fixed by him. 6. Proxies. Every member of the Corporation entitled to vote at any meeting thereof may vote in proxy. A proxy shall be in writing and revocable at the pleasure of the member executing it. Unless the duration of the proxy is specified, it shall be invalid after eleven months from the date of its execution. 7. Voting. Each membership shall entitle the holder thereof to one vote. In the election of directors, a plurality of the votes. cast shall elect. Any other action shall be authorized by a majority of the votes cash except where the applicable law prescribes a different proportion of votes provided that the said majority of the affirmative votes cash shall be at least equal to a quorum. 8. Waiver of Notice. Any requirement of furnishing a notice shall be waived ay any member who signs a waiver of notice before or after the meeting, or who attends the meeting without protesting, prior thereto or'at its commencement, the lack of notice to him. 9. Membership Action Without Meetings. Whenever members are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all membership. ARTICLE II DIRECTORS 1. Number of Directors. The property, affairs, activities, and concerns of the Corporation shall be vested in a Board of Directors, consisting of such number of directors as shall be fixed by the members, but not less than three. Upon election, the members of the board shall enter upon the performance of their duties and shall continue in office until their successors shall be duly elected and qualified. 2. Election and Term. The first board of directors shall consist of those persons named as the initial directors and shall hold office until the first annual meeting of members and until their successors have been elected and qualified. Thereafter, directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of members and auntil their successors have been elected and qualified. In the interim between annual meetings of members or of special meeting of members called for the election of directors, newly created directorships and any vacancies in the Board of Directors, including vacancies resulting from the removal of directors for cause or without cause, may be filled by the vote of the remaining directors then in office. 3. Meetings. Meetings shall be held at such time and place -2- as the Board shall fix, except that the first meeing of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the president or of a majority of the directors in office. 4. Notice. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat unless the lapse of such time has been waived. The notice of any meeting need not specify the purpose of the meeting. Any requirement of furnishing a notice shall be waived by any director who signs a waiver of notice before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him. 5. Participation by Telephone. Any one or more members of the board or any committee thereof may participate in a meeting of such board or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. 6. Quorum and Action. Except as hereinafter provided, a majority of the entire board shall constitue a quorum. Whenever a vacancy or vacancies in the board shall prevent a quorum from con- sisting of a majority of the entire board as aforesaid, a quorum shall consist of at least one-third of the entire board, but not less than two. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as otherwise provided by the applicable law and except as in these By-laws otherwise provided, the act of the Board shall be the act, at a meeting duly assembled, by vote of a majority of the directors present at the time of the vote, a quorum being present at such time. 7. Removal of Directors. Any or all of the directors may be removed for cause or without cause by the members. One or more of the directors may be removed for cause by the board of directors. 8. Committees. Whenever the Board of Directors shall consist of more than three members, the board of directors, by resolution adopted by a majority of the entire Board of Directors, may designate from their number three or more directors to constitue an Executive