FY2001 03/22/2001
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3111 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL (305) 289-6027
FAX (305) 289-1745
MONROE COUNTY COURTHOUSE
500 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL (305) 292-35SO
FAX (305) 295-3663
BRANCH OFFICE
PLANTATION KEY
GOVERNMENT CENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-1146
MEMORANDUM
DATE:
June 20, 2001
TO:
Lynda Stuart, Office Manager
Tourist Development Council
AnN:
Maxine Pacini
Administrative Assistant
PaIl1ela G. Hancoc0lv
Deputy Clerk U
FROM:
At the March 22, 2001, Board of County Commissioner's meeting the Board granted
approval and authorized execution of a Grant of Funds between Monroe County and Friends of
Mallory Square for the Key West Historic Memorial Sculpture Garden-Lighting and Busts in an
amount not to exceed $50,000, DAC I, Capital Resources, FY 2001.
Enclosed are two duplicate originals of the above mentioned for your handling. Should
you have any questions please do not hesitate to contact this office.
Cc: County Administrator wlo document
Risk Management wlo document
County Attorney
Finance
File/"
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GRANT OF FUNDS
This AGREEMENT dated the2---2--- day oftJ.A;eLH 2001, is entered into by and
between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY,
hereinafter "County," on behalf of the TOURIST DEVELOPMENT COUNCIL, hereinafter
"TDC" and Friends of Mallory Square, 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, improve, maintain, or promote museums,
zoological parks, fishing piers, nature centers or sports arenas which are publicly owned
and operated or owned and operated by not-for-profit corporations, and
WHEREAS, Contractor has applied for funding for the Key West Historic
Memorial Sculpture Garden - Improvement II project to renovate and improve the
Sculpture Garden 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 acquire, construct, repair and rehabilitate the property for use as a
museum 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 March 22 through
September 30, 2001. 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 the installation of a
lighting system and the creation of busts of individuals that are not yet sponsored in the
Key West Historic Memorial Sculpture Garden.
3. AMOUNT OF AGREEMENT AND PAYMENT. The County shall provide an
amount not to exceed $50,000 ($25,000 for the installation of the lighting system and
$25,000 for the creation of the busts) in reimbursement for materials and services used
to acquire, improve, rehabilitate, repair and renovate 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. 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. Monroe County's
Friends of Mallory Square
Capital Project Funding FY 200 1
performance and obligation to pay under this agreement is contingent upon an annual
appropriation by the SOCC.
Friends of Mallory Square
Capital Project Funding FY 2001
2
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.
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.
Friends of Mallory Square
Capital Project Funding FY 2001
3
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.
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.
Friends of Mallory Square
Capital Project Funding FY 2001
4
9. HOLD HARMLESS/INDEMNIFICATION. The Contractor hereby agrees to
indemnify and hold harmless the BOCCfTDC 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 30,2001.
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
Friends of Mallory Square
Capital Project Funding FY 2001
5
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.
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
Friends of Mallory Square
Capital Project Funding FY 2001
6
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, 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 Friends of Mallory Square: Edwin O. Swift, III
201 Front Street
Key West, FL 33040
For County: Lynda Stuart
Monroe County Tourist Development Council
1201 White Street, Suite 102
Key West, FL 33040
and
Suzanne Hutton, Asst. County Attorney
310 Fleming St.
Key West, FL 33040
Friends of Mallory Square
Capital Project Funding FY 2001
7
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
~e day and year first above written.
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(SEAL)
ATTEST:
By:
Secretary
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