Item E2 E.2
County of Monroe P W
;� w 1rJ� BOARD OF COUNTY COMMISSIONERS
r,�� Mayor Craig Cates,District 1
The Florida Keys Mayor Pro Tem Holly Merrill Raschein,District 5
y Michelle Lincoln,District 2
James K.Scholl,District 3
Ij David Rice,District 4
County Commission Meeting
March 22, 2023
Agenda Item Number: E2
Agenda Item Summary #11763
BULK ITEM: Yes DEPARTMENT: Tourist Development Council
TIME APPROXIMATE: STAFF CONTACT: Ammie Machan (305) 296-1552
N/A
AGENDA ITEM WORDING: Approval of an Amendment to Agreement with the City of Key
West to extend the Agreement for the Mallory Square Sunshade Project to March 31, 2024.
ITEM BACKGROUND: See attached request from the City of Key West to extend the completion
date of the project to March 31, 2024 to allow for the project to be incorporated into the Mallory
Square master Plan.
DAC I approved at their meeting of January 11, 2023
TDC approved same at their meeting of January 31, 2023
PREVIOUS RELEVANT BOCC ACTION: BOCC approved original Agreement at their meeting
of March 17, 2021 and 1st Amendment to Agreement at their meeting of March 16, 2022.
CONTRACT/AGREEMENT CHANGES:
Amendment to Extend Agreement
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
Mallory Square Sunshade Request, Amendment and Original Agreement
FINANCIAL IMPACT:
Effective Date: March 17, 2021
Expiration Date: March 31, 2024
Total Dollar Value of Contract: $167,890 (Segment 1 of the project in the amount of$12,000 has
been completed and paid out)
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Total Cost to County: No Cost to County
Current Year Portion: $155,890 (Segment 2 of the project)
Budgeted: Yes
Source of Funds: TDC
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant:
County Match:
Insurance Required: Yes —to be provided after BOCC approval
Additional Details:
03/22/23 117-77040 - TDC BRICKS & MORTAR 117 $155,890.00
REVIEWED BY:
Maxine Pacini Completed 02/27/2023 3:06 PM
Christine Limbert Completed 02/27/2023 9:27 PM
Purchasing Completed 02/28/2023 10:48 AM
Budget and Finance Completed 02/28/2023 3:35 PM
Brian Bradley Completed 02/28/2023 3:45 PM
Lindsey Ballard Completed 03/01/2023 9:54 AM
Board of County Commissioners Pending 03/22/2023 9:00 AM
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,ll...HE CITY OF KEY WEST U)
Posk 011-1ce Box W09 Kev West,FL 33041-1409(.30-5)809-..3700 c�
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December 2, 2022
Monroe County Tourist Development Council
District I Advisory Committee
1201 White Street, Suite 102 2
Key West, FL 33040
RE: Mallory Square Sunshades (Public Facilities Category)
Contract ID# 2485; $167,890 in capital funding
Request for 11-month time extension to grant award agreement -
Dear District I Advisory Committee: U
The City of Key West respectfully requests an 11-month time extension to March 31, 2024 to the
Grant Agreement Period for the Mallory Square Sunshades (Public Facilities Category) Project to
coincide with the time extension request for the Mallory Square Public Restrooms Project.
A previous time extension for the sunshades project was approved through April 30, 2023.
Project progress consists of completing public outreach, going through a Request for
Qualifications procurement process to select a master plan consultant (Sasaki) for Mallory
Square, and getting City Commission approval to contract with Sasaki. Once onboard in July
2022, Sasaki began work on the first of three phases of Mallory Square master plan E
development. The Sunset Celebration at Mallory Square Visioning Hub website was established
at II��� � ui'ui a1'll iu p„ , :a : mll : iiu and Phase 1 completed in September 2022. Phase E
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1 was the Discovery Phase where the community was engaged through conversations, a survey U)
and research to build a robust foundation of knowledge to assist with future planning efforts.
Phase 2, Visioning and Programming, is coming to a close in December. There are two dates
scheduled where the Planning Team will share concepts for the future of Mallory Square in
person to take public input: December 9, 2022, 5pm — 9pm at the Custom House during the
Holiday Concert & Bazaar and December 10, 2022, 4pm — 7pm at the Mallory Square Sunset
Celebration. A second survey will be released in late November giving the community another
way to provide input through online engagement. The final phase, Phase 3 Master Plan, is
planned for January—April 2023 during which both a draft master plan and final master plan will
be completed.
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With the master planning process well-defined at this point,this time extension, if approved,will
ensure the Mallory Square Sunshades Project (Contract ID# 2485) and the Mallory Square Public
Restrooms Project (Contract ID# 2630) are incorporated into the master plan and are an E
integrated part of the City's efforts to revitalize Mallory Square.
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City of Key West
Mallory Square Sunshades 9
Request for Time Extension
Page 2
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Once the final design is approved, the goal is to prioritize the completion of the sunshades and
restrooms projects as the first phase of construction with milestone dates as follows:
2
Construction Drawings April—June 2023
Construction procurement June—Aug 2023
Construction Sept 2023- Mar 2024 2
Your continued support and patience are much appreciated. Thank you for considering this
request for a time extension. If you have any questions, please contact me at (305) 809-3741 or
via email sh6 o"iii )c of qy g
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Sincerely,
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Carolyn D. Sheldon
Senior Grants Administrator
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AMENDMENT 2nd AMENDMENT TO AGREEMENT S
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THIS AMENDMENT to Agreement dated this day of 2023, is entered into by and w
between the Board of County Commissioners for Monroe County, on behalf of the Tourist
Development Council, and The City of Key West a Government agency organized and operating
under the laws of the state of Florida (Grantee).
WHEREAS, there was an Agreement entered into on March 17, 2021 between the parties,
awarding $167,890 to Grantee for the Mallory Square Sunshades (Public Facilities Category)
("Agreement"); and
WHEREAS, the was an amendment to Agreement on March 16, 2022 to revise the termination
date of the Agreement to April 30, 2023; and
WHEREAS, it has become necessary to revise the termination date of the project to March 31,
2024 to allow for the project to be incorporated into the Mallory Square Master Plan, and
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NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties
agree to the amend Agreement as follows: U
1. Paragraph 1 of the agreement shall be revised to read as follows: This Agreement is for
the period of March 17, 2021 to March 31, 2024. 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 0
compliance with paragraphs 7, 12 or 13 of the original Agreement dated March 17, 2021 and ra
Amended on March 16, 2022..
2. Reimbursement request for Segment 2 of the project, in an amount not to exceed
$155,890, may not be submitted until October 1, 2023.
3. Any references to termination date and submission of invoices shall be revised to read
March 31, 2024.
4. The remaining provisions of the Agreement dated March 17, 2021 and amended on
March 16, 2022 shall remain in full force and effect.
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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Amendment#2
City of Key West--Mallory Square Sunshades(Public Facility Category)
ID#2485
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IN WITNESS WHEREOF, the parties have set their hands and seal on the day and year first
above written.
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(SEAL) Board of County Commissioners
Attest: Kevin Madok, Clerk of Monroe County
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CHMSUNE LI MBERT•BARROWS
ASSISTANT COUNTY ATTORNEY qy
The City of Key West DATE 2/13/23
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City of Key West—Mallory Square Sunshades(Public Facility Category)
ID#2485
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AMENDMENT Ost AMENDMENT) TO AGREEMENT
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THIS AMENDMENT to Agreement dated this 16th day of March 2022, is entered into by and
between the Board of County Commissioners for Monroe County, on behalf of the Tourist W
Development Council, and The City of Key West a Government agency organized and operating
under the laws of the state of Florida (Grantee).
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WHEREAS, there was an Agreement entered into on March 17, 2021 between the parties,
awarding $167,890 to Grantee for the Mallory Square Sunshades (Public Facilities Category)
("Agreement"); and
WHEREAS, it has become necessary to revise the termination date of the project to April 30
2023 due to delays, and
NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties
agree to the amend Agreement as follows-
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1. Paragraph 1 of the agreement shall be revised to read as follows: This Agreement is for
the period of March 17, 2021 to April 30, 2023. This Agreement shall remain in effect for the stated t'-
period unless one party gives to the other written notification of termination pursuant to and in
compliance with paragraphs 7, 12 or 13 of the original Agreement dated March 17, 2021.
2. Reimbursement request for Segment 2 of the project, in an amount not to exceed
$155,890, may not be submitted until October 1, 2022.
3. Any references to termination date and submission of invoices shall be revised to read °�'
April 30, 2023.
4. The remaining provisions of the agreement dated March 17, 2021 shall remain in full
force and effect.
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REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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Amendment#1
City of Key West—Mallory Square Sunshades(Public Facility Category)
ID#2485
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.IN WITNESS WHEREOF, the parties hav6.se.t their hands and seal on the daybnd year first U)
above written:
,(SEAL) Board of"County Commissioners
qst Kevin Madok,C[erk' of Monroe County
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Mayor/Chairman 0
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MONROE COUNTY ATTORNEY
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CHRISTINE LINIDERT-HARROWS.7
ASSISTANT COUNTY ATTORNEY
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Amendinent#1
City of Key West—Mallory Square.Sunshades(Public Facility Category)
IDN 2485
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Grant Award Agreement S
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THIS AGREEMENT (agreement) is entered into this 17th day of
March , 2021 by and between MONROE COUNTY (County or Grantor), a political
subdivision of the State of Florida and City of Key West (Grantee) a Government organized
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and operating under the laws of the State of Florida.
WHEREAS, the district pennies of Tourist Development Tax may be used
for the following purposes only: To acquire, construct, extend, enlarge, remodel, repair,
improve, maintain, one or more a. Publicly owned and operated convention centers, sports
stadiums, sports arenas, coliseums, or auditoriums within the boundaries of the county or
subcounty special taxing district in which the tax is levied; or b. Auditoriums that are publicly
owned but are operated by organizations that are exempt from federal taxation pursuant to
26 U.S.C. s. 501(c)(3) and open to the public; c. Aquariums or museums that are publicly
owned and operated or owned and operated by not-for-profit organizations and open to the
public, within the boundaries of the county or subcounty special taxing district in which the -
tax is levied; or 5. To finance beach park facilities or beach, channel, estuary, or lagoon
improvement, maintenance, re-nourishment, restoration, and erosion control; or 6. public �?
facilities if needed to increase tourist related business activities and in accordance with F.S.
125.0104(5)(a)(6.) and (b) zoological parks, fishing piers or nature centers which are public
owned and operated or owned and operated by not-for-profit organizations and open to the
public; and
WHEREAS, Grantee has applied to TDC District I for funding for the Mallory
Square Sunshades (Public Facilities Category) capital project; and
WHEREAS, the Grantor and Tourist Development Council (TDC) have
determined that it is in the best interest of the County, for purposes of promoting tourism and
preserving the heritage of the community, to attract tourists, and improve the property for
use as a Public Facility 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 March 17, 2021
through to April 30, 2022. This agreement shall remain in effect for the stated period unless
one party gives to the other written notification of termination pursuant to and in compliance
with paragraphs 7, 12 or 13 below. The project work described in Exhibit A must
commence within the fiscal year funded which is October 1, 2020 to September 30,
2021. Proof that the project commenced within the fiscal year funded may be
requested by the TDC administrative office. Segment #1 must be completed on or 0
before September 30, 2021. Segment #2 will only be funded if the independent
professional tourism impact analysis shows a positive impact on tourist related
businesses as required by F.S. 125.0104(5)(a)(6.)(e.). This Agreement will terminate
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Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
1 Packet Pg. 2193
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and will not reimburse for Segment#2 work in the event that the project does not have S
a positive impact on tourist related businesses.
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2. SCOPE OF AGREEMENT. The representations made by the Grantee in its proposal W
submitted to the TDC are incorporated herein by reference. The Grantee shall provide the
following scope of services: Materials and Labor required to complete the above mentioned
project. Segment(s) of the work is/are more particularly described in Exhibit A, detailing the
work and the cost allocable to each segment, attached hereto, and incorporated herein by
reference. Anything not referenced within Exhibit A will not be reimbursed. Segment
1 work must be completedon or before ptemb r 30, 2021. Segment #2 work will
not be eligiblefor reimbursement in the v nt that the conditions of F.S.
5. 4(5)( )( .)( .) are not reef. All work for which grant funds are to be expended must 2
be completed by the stated termination date of April 30, 2022 and all invoices pertaining to
this project shall be submitted to the TDC administrative office no later than April 30, 2022
to be considered for payment. Acknowledgement: Grantee shall be required to
permanently display and maintain at Grantee's expense, public acknowledgement of the
support of the Monroe County Tourist Development Council in a publicly prominent area of
their facility in the following form: "This project was made possible with the financial support
of the Monroe County Tourist Development Council." If the Grantee has already complied U
with this requirement through previous funding, said acknowledgement fulfills this
condition. A photograph of said acknowledgment shall be provided with the final request for
reimbursement outlined in Exhibit A of this agreement.
a.) There shall be a project manager to acknowledge receipt of goods or work
performed. This Project Manager shall be Steve McAlearney (Telephone: (305) 809-
3747; Email: smcalearneycityofkeywest-fl.gov; csheldon@cityofkeywest-fl.gov ).
Should there be a change in the project manager specified in the Grantee's
application, a new project manager shall be designated, and notice with new contact
information shall be provided in writing to the TDC administrative office.
b.) If, and to the extent that, Grantee contracts for any of the work funded under
this agreement to be performed or completed, Grantee shall give notice to County of E
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.
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(i) A Grantee which is a governmental entity shall comply with the procurement
regulations and policies to which it is subject, and shall provide Grantor
documentation of the procurement requirements applicable to the project and
compliance therewith.
(ii) A Grantee which is a not-for-profit entity shall use procurement processes
for those parts of the project to be contracted (not performed by the entity's
employees) as follows. For work expected to be under $50,000, the not-for-
profit shall document in the file three written quotes or a notarized statement E
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FY 2021 Capital Project Funding
Contract ID#2485
2 Packet Pg. 2194
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as to why such written quotes were not feasible for the goods or services. For S
work expected to be $50,000 or more, a competitive bid process must be
performed following Monroe County's procurement policies and procedures,
unless the commodities or services will be provided by a "sole source" W
provider, in which case the not-for-profit must submit a notarized statement
with its request for payment explaining why the vendor is the only source for
the commodities or services. Refer to: hops://www.monroecounty-
fl.gov/DocumentCenter/View/23168/PURCHASING-POLICY--3-18-2020
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 2
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 U
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 $167,890 (One Hundred Sixty-Seven Thousand Eight Hundred and Ninety
Dollars TDC District I funding) 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 reimbursement from Grantor. Payment of
segment 1 shall be 100% (one hundred percent) reimbursement of the total cost of the
segment, subject to the cap on expenditures for that segment as set forth in Exhibit A.
Payment of segment 2 shall be 70% (seventy 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.
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, invoices, canceled checks, before
and after pictures, County Project Manager signature of inspection and other
documentation necessary to support a claim for reimbursement. Included in said
documentation shall be proof that the Grantee has received the property, real or
personal, 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 (Steven Sanders- phone:
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FY 2021 Capital Project Funding
Contract ID#2485
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305-295-4338 email: Sanders-Steven@MonroeCounty-Fl.gov or Cary Knight-phone: S
305-292-4527 email: Knight-Cary@MonroeCounty-Fl.gov) and to arrange for
inspection upon the completion of each segment. It shall be the responsibility of the
project manager to initiate the communication with the Monroe County Engineering W
Division to facilitate the inspection of the segment of the project. 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.
All payment requests must be submitted to the TDC administrative office no later than
April 30, 2022. Invoices received by the TDC administrative office after April 30, ,
2022 will not be considered for payment. 2
b.) If in-kind services were noted within your application, and you are applying
them to this project, documentation shall be submitted to the TDC Administrative
Office to show the receipt and application of in-kind donations of goods, professional
services, and materials. Said documentation should include invoices, bills of lading,
etc., and be verified as received and applied to the project through a notarized
statement of the project manager and said documentation submitted to the TDC U
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 packet. This document should be signed by the project
manager.
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 the
contract may be immediately terminated at the discretion of the County, whose
decision shall be final.
c.) 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.
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d.) 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 upon request for
personal property and forward said completed form 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
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FY 2021 Capital Project Funding
Contract ID#2485
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promote tourism and ownership of said property shall be retained by the Grantee. 0
The following terms shall apply:
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(i) The Grantee shall have the use of the property, including both real and W
personal, acquired with funding under this agreement, at the project site for so
long as the facility is operated by Grantee, open to the public, and has a
primary purpose of promoting tourism. At such time as any of the conditions
in the preceding sentence shall cease to exist, the Grantee shall transfer
ownership and possession of equipment and personal property to a local
government or another not-for-profit organization which is a facility for which
tourist development taxes may be used pursuant to Florida Statute 125.0104 ,
with prior approval from TDC and BOCC. 2
(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 U
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, low
or change to a non-tourist related purpose occur, 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. If an audit determines that monies
paid to the Grantee pursuant to this agreement were spent for purposes not authorized by
this agreement, the Grantee shall repay the monies together with interest calculated
pursuant to Sec. 55.03, F.S. running from the date the monies were paid to Grantee. In the
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event of an audit exception, the current fiscal year grant award or subsequent grant awards S
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. W
a.) Public Access. The County and Grantee shall allow and permit reasonable
access to, and inspection of, all documents, papers, letters or other materials in its
possession or under its control subject to the provisions of Chapter 119, Florida
Statutes, and made or received by the County and Grantee in conjunction with this
agreement; and the County shall have the right to unilaterally cancel this agreement
upon violation of this provision by Grantee. ,
5. MODIFICATIONS AND AMENDMENTS. Any and all modifications of the terms of
this agreement shall be only amended in writing and approved by the Board of County
Commissioners for Monroe County. The terms, covenants, conditions, and provisions of
this agreement shall bind and inure to the benefit of the County and Grantee and their
respective legal representatives, successors, and assigns.
6. INDEPENDENT CONTRACTOR. At all times and for all purposes hereunder, the U
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. E
7. COMPLIANCE WITH LAW. In carrying out its obligations under this agreement, the E
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.
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8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS
AGREEMENT. The Grantee shall include in all agreements funded under this agreement
the following terms:
a.) Anti-discrimination. Contractor agrees that it will not discriminate against any
employees or applicants for employment or against persons for any other benefit or
service under this agreement because of their race, color, religion, sex, national
origin, or physical or mental handicap where the handicap does not affect the ability
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FY 2021 Capital Project Funding
Contract ID#2485
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of an individual to perform in a position of employment, and to abide by all federal S
and state laws regarding non-discrimination.
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b.) Anti-kickback. Contractor warrants that no person has been employed or LU
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 the County. For
breach or violation of this warranty, the County shall have the right to annul this
agreement without liability or, in its discretion, to deduct from the agreement price or
consideration, the full amount of such commission, percentage, brokerage or
contingent fee. Contractor acknowledges that it is aware that funding for this ,
agreement is available at least in part through the County and that violation of this 2
paragraph may result in the County withdrawing funding for the project.
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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 U
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, wrongful acts or omissions or criminal conduct on the part of
contractor in the performance of the terms of this agreement. The contractor shall
immediately give notice to the County of any suit, claim or action made against the
contractor that is related to the activity under this agreement, and will cooperate with
the County in the investigation arising as a result of any suit, action or claim related
to this agreement.
d.) Insurance. Contractor agrees that it maintains in force at its own expense a
liability insurance policy which will insure and indemnify the contractor and the County
from any suits, 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. The
following coverage's shall be provided:
1. Workers' Compensation insurance as required by Florida Statutes.
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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.
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The contractor, the County and the TDC shall be named as additional insured on ..
insurance policies, except workers' compensation. The policies shall provide no less
than 30 days' notice of cancellation, non-renewal or reduction of coverage.
c�
Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
7 Packet Pg. 2199
E.2.a
S
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 are in effect. W
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 2
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or authorized agents and representatives of said government bodies.
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9. HOLD HARMLESS/INDEMNIFICATION. Grantee and COUNTY are subdivisions as
defined in 768.28, Florida Statutes, and each party agrees to be fully responsible for the
respective negligent acts and omissions of its agents or employees to the extent permitted -
by law. Nothing herein is intended to serve as a waiver of sovereign immunity by any party
to which sovereign immunity may be applicable. Nothing herein shall be constructed as a U
consent by a state agency or subdivision of the State of Florida to be sued by third parties
in any manner arising out of this agreement or any other contract. To the extent authorized
by law and subject to 768.28, the Grantee hereby agrees to defend, indemnify and hold
harmless the BOCC/TDC and the 3406 North Roosevelt Blvd. Corporation or any of its
officers and employees from and against any and all losses, 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 in
connection with any action, proceeding, or claims for injury, including death to any person
or persons, or damage to, loss of the use of, or loss of tangible property of any person, firm
or corporation, including the parties hereto, arising or resulting directly or indirectly out of the
performance of this contract, but only to the extent caused or incurred by the negligence or
other actionable fault of the Grantee or its agent. This obligation shall be limited to a
maximum amount of the sovereign immunity limits of liability prescribed in 768.28, Florida
Statutes, namely $200,000 per person or $300,000 per occurrence, and the Grantee will
have no further obligation to defend or hold harmless BOCC/TDC and the 3406 North
Roosevelt Blvd. Corporation in the event said limits are paid or are otherwise exhausted.
Nothing contained herein shall be construed to alter or waive the COUNTY or Grantee's
sovereign immunity under 768.28, Florida Statutes.
The Grantee shall immediately give notice to the Grantor of any suit, claim or action made
against the Grantor that is related to the activity under this agreement and will cooperate
with the Grantor in the investigation arising as a result of any suit, action or claim related to
this agreement.
a.) Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28,
Florida Statutes, the participation of the County and the Grantee in this agreement
and the acquisition of any commercial liability insurance coverage, self-insurance
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Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
8 Packet Pg. 2200
E.2.a
coverage, or local government liability insurance pool coverage shall not be deemed 0
a waiver of immunity to the extent of liability coverage, nor shall any contract entered
into by the County be required to contain any provision for waiver.
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b.) Privileges and Immunities. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability,
workers' compensation, and other benefits which apply to the activity of officers,
agents, or employees of any public agents or employees of the County, when
performing their respective functions under this agreement within the territorial limits
of the County shall apply to the same degree and extent to the performance of such
functions and duties of such officers, agents, volunteers, or employees outside the ,
territorial limits of the County. 2
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 U
not limited to: 1) Title VII 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 E
ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse
patient records; 8) Title VI I I of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, E
relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans
with Disabilities Act of 1990 (42 USC s. 12101 Note), as maybe amended from time to time,
relating to nondiscrimination on the basis of disability; 10) Monroe County Code Chapter 14,
Article II, which prohibits discrimination on the basis of race, color, sex, religion, national
origin, ancestry, sexual orientation, gender identity or expression, familial status or age; 11)
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 this agreement without liability or, in its discretion, to deduct from the
c�
Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
9 Packet Pg. 2201
E.2.a
agreement price or consideration, the full amount of such commission, percentage, S
brokerage or contingent fee.
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12. TERMINATION. This agreement shall terminate on April 30, 2022. Termination prior W
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 the TDC administrative office providing written notice of termination delivered
in person or by mail to Grantee. The Grantor may terminate this agreement without cause
upon giving written notice of termination to Grantee. The Grantor shall not be obligated to ,
pay for any services or goods provided by Grantee after Grantee has received written notice 2
of termination.
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13. TERMINATION FOR BREACH. The Grantor may immediately terminate this
agreement for any breach of the terms contained herein. Such termination shall take place
immediately upon receipt of written notice of said termination. Any waiver of any breach of
covenants herein contained to be kept and performed by Grantee shall not be deemed or
considered as a continuing waiver and shall not operate to bar or prevent the Grantor from U
declaring a forfeiture for any succeeding breach either of the same conditions or of any other
conditions. Failure to provide Grantor with certification of use of matching funds or matching
in-kind services at or above the rate of request for reimbursement or payment is a breach of
agreement, for which the Grantor may terminate this agreement upon giving written
notification of termination.
14. ENTIRE AGREEMENT. This agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and all prior
agreements with respect to such subject matter between the Grantee and the Grantor.
15. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES. This
agreement shall be governed by and construed in accordance with the laws of the State of
Florida applicable to contracts made and to be performed entirely in the state. This
agreement is not subject to arbitration. Mediation proceedings initiated and conducted
pursuant to this agreement shall be in accordance with the Florida Rules of Civil Procedure
and usual and customary procedures required by the circuit court of Monroe County.
a.) Venue. In the event that any cause of action or administrative proceeding is
instituted for the enforcement or interpretation of this agreement, the County and
Grantee agree that venue shall lie in the appropriate court or before the appropriate
administrative body in Monroe County, Florida.
b.) Severability. If any term, covenant, condition or provision of this agreement
(or the application thereof to any circumstance or person) shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining terms,
covenants, conditions and provisions of this agreement, shall not be affected thereby;
and each remaining term, covenant, condition and provision of this agreement shall
be valid and shall be enforceable to the fullest extent permitted by law unless the
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Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
10 Packet Pg. 2202
E.2.a
enforcement of the remaining terms, covenants, conditions and provisions of this S
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 W
stricken provision.
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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 it
attorney's fees, court costs, investigative, and out-of-pocket expenses in appellate
proceedings.
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d.) Adjudication of Disputes or Disagreements. County and Grantee agree that
all disputes and disagreements shall be attempted to be resolved by meet and confer
sessions between representatives of each of the parties. If the issue or issues are 0
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. This agreement shall not be subject to arbitration.
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.
E
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 E
2 of 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.
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Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
11 Packet Pg. 2203
E.2.a
a.) Covenant of No Interest. County and Grantee covenant that neither presently S
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. W
b.) Code of Ethics. County agrees that officers and employees of the County
recognize and will be required to comply with the standards of conduct for public
officers and employees as delineated in Section 112.313, Florida Statutes, regarding,
but not limited to, solicitation or acceptance of gifts; doing business with one's agency;
unauthorized compensation; misuse of public position; conflicting employment or
contractual relationship; and disclosure or use of certain information. ,
17. PUBLIC ENTITY CRIME STATEMENT: A person or affiliate who has been placed
on the convicted vendor list following a conviction for public entity crime may not submit a
bid on an agreement to provide any goods or services to a public entity, may not submit a
bid on an agreement with a public entity for the construction or repair of a public building or
public work, may not submit bids on leases of real property to public entity, may not be -
awarded or perform work as a contractor, supplier, sub-contractor, or consultant under an
agreement with any public entity, and may not transact business with any public entity in U
excess of the threshold amount provided in Section 287.017, Florida Statutes, for
CATEGORY TWO for a period of 36 months from the date of being placed on the convicted
vendor list. By executing this document grantee warrants that it is in compliance with this
paragraph.
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. E
19. LICENSING AND PERMITS: Grantee warrants that it shall have, prior to E
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.
c�
Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
12 Packet Pg. 2204
E.2.a
2. Commercial General Liability Insurance with minimum limits of $500,000 S
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. LU
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3. Comprehensive Business Auto Liability Insurance with minimum limits of
$300,000 combined single limit per occurrence.
The Grantee, the Grantor and the TDC shall be named as additional insured, except
workers' compensation. The policies shall provide no less than 30 days' notice of
cancellation, non-renewal or reduction of coverage. Grantee shall provide to the County, as ,
satisfactory evidence of the required insurance, including the insurance policy application 2
and either:
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• Original Certificate of Insurance, OR
• Certified copy of the actual insurance policy, OR
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• Certificate of Insurance e-mailed from Insurance Agent/Company to �?
County Risk Management - Telephone Maria Slavik at (305) 295-3178 for
details (Certificates can be e-mailed directly from the insurance agency to:
Slavik- aria onroeounty-FL. ov — The e-mail must state that this is
a certificate for a TDC project and should be forwarded to Ammie Machan
at the TDC administrative office)
An original certificate or a certified copy of any or all insurance policies required by this
contract shall be filed with the Clerk of the BOCC prior to the contract being executed by the
Clerk's 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 (certificate only
for workers' compensation coverage). Insurance information should be mailed to:
Monroe County Board of County Commissioners
c/o Risk Management
P.O. Box 1026
Key West, FL 33041
21. NOTICE. Any notice required or permitted under this agreement shall be in writing
and hand delivered or mailed, postage prepaid, to the other party by certified mail, returned
receipt requested to the following:
For Grantee: Steve McAlearney
City of Key West
1300 White St ,
Key West, FL 33040 2
For Grantor: Maxine Pacini
Monroe County Tourist Development Council
1201 White Street, Suite 102
Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
13 Packet Pg. 2205
E.2.a
Key West, FL 33040 S
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and
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Ms. Christine Limbert-Barrows, Asst. County Attorney
P.O. Box 1026
Key West, FL 33041-1026
22. CLAIMS FOR FEDERAL OR STATE AID. Grantee and County agree that each shall
be, and is, empowered to apply for, seek, and obtain federal and state funds to further the
purpose of this agreement. Any conditions imposed as a result of funding that effect the ,
Project will be provided to each party. 2
23. NON-DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES. This U)
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 U
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. 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
c�
Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
14 Packet Pg. 2206
E.2.a
shall not constitute a breach of the agreement; however, the Grantor shall have the right to S
determine if there will be any reduction to the amount of funds due to the Grantee after
consideration of all relevant facts and circumstances surrounding the delay in performance
or failure to complete the project within the contract period. Upon demand of TDC or W
Grantor, the Grantee must furnish evidence of the causes of such delay or failure. Grantor
shall not pay for any goods received or services provided after the date(s) described in
paragraph 1 and Scope of Services.
27. EXECUTION IN COUNTERPARTS. This agreement may be executed in any number
of counterparts, each of which shall be regarded as an original, all of which taken together
shall constitute one and the same instrument and any of the parties hereto may execute this ,
agreement by signing any such counterpart. 2
28. 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.
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29. MISCELLANEOUS: As used herein, the terms "contract" and "agreement" shall be U
read interchangeably.
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Mallory Square Sunshades (Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
15 Packet Pg. 2207
E.2.a
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NESS WHEREOF, the parties hereto have caused this agreement to be executed U)W- z nd year first above written.
a Board of County Commissioners
} evin Madok, Clerk of Monroe Co tv
As Deputy Clerk Mayor/Chairman
............................................................................................................
�+ Y Key
( MONRM COUNTY ATTORNEY
Lit o Ke West pPPRpV�o A$Tfl g�R)yt
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CHRISTINE UMBERT-BARROWS
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Date: Date: March 3, 2021
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Mallory Square Sunshades(Public Facilities Category)
FY 2021 Capital Project Funding
Contract ID#2485
16
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