Item E07
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: APRIL 19. 2006
Division:
TDC
Bulk Item: Yes X No
Department:
Staff Contact Person: Maxine Pacini
AGENDA ITEM WORDING:
Approval is requested to extend Agreement with The Florida Keys History of Diving Museum for their
Phase IB project to March 31,2007, and to update the name of the Project Manager.
ITEM BACKGROUND:
Current Agreement expires on September 30,2006.
PREVIOUS RELEVANT BOCC ACTION:
Original Agreement was approved by BOCC at their meeting of March 16,2005.
CONTRACT/AGREEMENT CHANGES:
Amendment to extend and change name of the Project Manager
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $116,021
BUDGETED: Yes --X- No
COST TO COUNTY: $116,021
SOURCE OF FUNDS:
TDC
REVENUE PRODUCING: Yes ~ No
AMOUNT PER MONTH_ Year
APPROVED BY: County Atty ~ OMB/Purchasing ~
Risk Management ~
DIVISION DIRECTOR APPROVAL:
(Lynda Stuart)
DOCUMENTA TION:
Included X
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 2/05
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTR.,\,CT SUMMARY
Contract with: The Florida Keys History of Contract
Diving Museum, Inc. Effective Date:
Expiration Date:
4/19/06
Contract Purpose/Description:
Approval is requested to extend Agreement with The Florida Keys History of Diving
Museum for their Phase 1 B proiect to March 31, 2007 , and to update the name of the
Project Manager.
Contract Manager:
Maxine Pacini
(Namel
11
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,
C '0
3523
(Ext.)
TDC # 3
.(D~partment/Stop #)
>>f4l
wi
for BOCC meeting on
Agenda Deadline
CONTRACT COSTS
Total Dollar Value of Contract: $ 116,021
Budgeted? Y es~ No 0 Account Codes:
Grant: $
County Match: $
Current Year Portion: $ 85,000
120-70040-530340- T50M-498Y -530340
115-75011-530340- T65C-498X-53041O
115-75011-530340-T65C-498X-530480
- -
---
ADDITIONAL COSTS
Estimated Ongoing Costs: $_/yr For:
(Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Changes Date Out
Division Director #JJ;}j Ye~~~rtr; {//?~t~[;:tt/u~//
Risk Managemen~
~ ~".J
O.M:.B./Purchasing
YesD NoGj'
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County Attorney
~o YesDNoc:::f
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I
Comments:
OMB Form Revised 2/27/01 MCP #2
AMENDMENT TO AGREEMENT
THIS ADDENDUM to agreement is made and entered Into this _ day of
2006, between the County of Monroe (County) and The Florida Keys History of
Diving Museum, Inc. (Grantee).
WHEREAS, there was a contract entered into on March 16, 2005, between the
parties. awarding $116,021 to Grantee for the History of Diving Museum - Phase 1 B
project to improve, repair and rehabilitate the property for use as a museum open to the
public; and
WHEREAS, it has become necessary due to construction delays to phase 1A,
which delayed construction for phase 1 B, to extend the contract for an additional period
of time to allow the Grantee time to complete the project; and
WHEREAS, it has become necessary to change the name of the Project
Manager;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
the parties agree to the amended agreement as follows:
1 . The contract period as outlined in Paragraph 1 is extended to March 31,
2007.
2. The Project Manager as outlined in Paragraph 2.a. shall be Mrs. Sally
Bauer.
3. The remaining provisions of the contract dated March 16, 2005 shall
remain In full force and effect.
IN WITNESS WHEREOF, the parties have set their hands and seal on the day
and year first above written.
The Florida Keys History of Diving
Museum, Inc.
f\ ~
"),1) . cJfl.M.L~
President
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
BOARD OF COUNTY
COMMISSIONERS OF
MONROE COUNTY, FLORIDA
Deputy Clerk
Florida Keys History of Diving Museum Amendment
& O'v/~9
JJ' ,
~ i
The Florida Keys History of Diving Museum, Inc.
Man. Quest to Explore Under the Se.
82990 Ov.,..... Hwy - MM 83
PO Box 887 '.'amorada, FL 33038
Phon..: 30&-.884-9737/2784
Em.'I: ~lvlnamu..um"ol.com
Website: www.lflvingmuaeum.con)
Sent by fax and mail
February 21. 2006
Maxine Pacinit Administrative Assistant
Finance Office
Monroe County Tourist Development Council
1201 White Street, Suite 102
Key West, Florida 33040
Dear Maxine Pacini:
Fax 305.296-0788
Ph. 296.1552
Re: Request for roll over of the TOC Bricks and Mortar 2005 Grant (2)
# 120 70040 530340 T50B498X 530340
The 10 month construction delay in beginning our first (2004) Bricks and Mortar
Grant has contributed to a delay in initiating and completing the second (2005) Grant.
Due to ongoing construction delays, the Museum anticipates that it will be difficult to
complete alt of the contract items in the 2005 Grant by September 30, 2006.
We are therefore requesting a roll over of approximately $75,000 (of the remaining
$105,946) into the TOC fiscal year that begins Oct.1, 2006. We are aSking for our roll
over extension to be granted until March 31, 2007.
Thank you for your help in developing this new Museum for the Islamorada area. We
look forward to your approval of this roll over request.
since~Y,
~ ~ OM/v--
Sally . ~~~
Grant Project Manager
The Florida Keya Hietory of Olving Muaeum. Inc. is !Ill ind~llIldent, nol-for-pro1lt $Of(e){3) organl2atlon. n. MusetMll 1$ dedicated to m.
preMMlIon, edue.auol'l end emibltion ot \he Hi&tory Of OMng, willl emptIUllJ Olllhe COOIlibl.Jtionll of SOuth FIorid8 and The Florid. f(ey$.
9rant Award Aa~
This AGREEMENT dated the )V %ay of ~2005. is entered
into by and between the BOARD OF COUNTY COMMISSIONERS FOR MONROE
COUNTY, hereinafter.CountY' or .GRANTOR,- on behalf of the TOURIST
DEVELOPMENT COUNCIL, hereinafter "TOC- and The Florida Keys History of
Diving Museum, Inc., hereinafter "Grantee-.
WHEREAS. the third penny of Tourist Development Tax may be used
to acquire, construct, extend, enlarge, remodel, repair or improve. convention
centers, sports stadiums, sports arenas, coliseums, auditoriums, fishing piers,
museums, zoological parks, nature centers and beaches which are publicly owned
and operated or owned and operated by not-for-profit corporations, and
WHEREAS. Grantee owns and contracts to a not-for-profit corporation
for the operation of a museum open to the public; and
WHEREAS. Grantee has applied for funding for the History of Diving
Museum - Phase 1 B project; and
WHEREAS, the Grantor and TDC have determined that it is in the best
interest of the County, for purposes of promoting tourism and preserving the heritage
of the community, to improve, 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 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 March 16,
2005 through September 30, 2006. This agreement shall remain in effect for the
stated period unless one party gives to the other written notification cI termination
pursuant to and in compliance with paragraphs 7,12 and 13 below.
2. SCOPE OF AGREEMENT. The Grantee shafl provide such materials and
services as are required for the renovation of facility and Exhibit Design and
Construction whim will incfude: (a) extermination; window wall reconstruction; roof
repair; sign electricalJtrenching; engineering/permits; (b) landscaping; parking area;
fire hydrant; engineeringfpermits (c) interactive technology; educational interactive
exhibits enhancement; interpretive/content for exhibits as described in the funding
application; and acquisition and installation of remote vehicle tank and remote vehicle
equipment. All work for which grant funds are to be expended must be completed by
the stated termination date of September 30, 2006 and all invoices pertaining to this
project shall be submitted to the Finance Department of Monroe County no later than
September 30, 2006 to be considered for payment
a) There shall be a project manager to acknowtedge receipt of goods or work
performed. This Project Manager shall be Mr. Daniel W. Kunz. P.O. Box 897.
Islamorada. FL 33036 (Telephone: (305) 664..0190). Should there be a change in
the project manager specified in the Grantee's application. a new project manager
shall be designated and notice of the designation shafl be provided to TOC/County.
b) If. and to the extent that. Grantee contracts for any of the work funded under
this agreement to be performed or completed, Grantee shall give notice to County of
the contractual relationship, provide County with a copy of any and aU contracts and
shall require the contractor(s) to comply with all the terms of this contract. Should
grantee contract the work and then deaease the scope of work to be performed by a
contractor, Grantee shall provide County with an amended contract executed by
Grantee and its contractor.
c) Grantee shaft 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, induding those by
the architect, engineer, contractor or an independent consultant if necessary,
required to establish that materials which are purported to be applied to the project
are in fad 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.
3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shan provide an
amount not to exceed $116, 021 (One Hundred and Sixteen Thousand and Twenty
One dollars) for materials and services used to 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. Monroe County's
performance and obligation to pay under this agreement is contingent upon an
annual appropriation by the BOCC.
a) Payment shan be made upon the completion of a specific phase as outlined in
the Scope of Services. Payment for expenditures permissible by law and County
policies shall be made through reimbursement to Grantee upon presentation of
Application for Payment Summary- AlA Document G702, invoices, canceled checks
and other documentation necessary to support a claim for reimbursement. Included
in said documentation shall be proof that the Grantee has received and applied to the
property matching funds equivalent to or greater than the amount invoiced to the
Grantor. All submissions for payment shall 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. Photos of the progress of the work shall also
be submitted with the payment application. When the project requires a county
and/or municipal building permit(s), it shan be the responsibility of the project
architect, engineer, general contractor or project manager to initiate the
communication with the Monroe County Construction Management Department to
facilitate the inspection of said phase and obtain the signature of a Monroe County
Florida Keys Histoty of Dive Museum 2005
2
Construction Manager as to the completion of said phase at which time the
documentation shall be submitted for payment.
The application for payment document must be certified through a statement signed
by an officer of the organization and notarized, declaring that representations in the
invoice are true and factual. Grantee shall also provide partial releases of liens or
certifications of non-lien if applicable. Grantor shall retain 10% of any payment on
work in progress until the Grantee has provided a Final Release of Lien for each
vendor/Contractor for whom payment is requested. Final payment will not be made
until the talowing documents are complete and submitted to the Grantor:
AlA Document G-702 Application for Payment Summary
AlA Document G-704 Certificate of Substantial Completion
AlA Document G-706 Contractor's Affidavit of Debts & Claims
AlA Document G-706A Contractor's Affidavit of Release of liens
AlA Document G-707 Consent of Surety to Final Payment
Final Release of Lien
Affidavit and Partial Release of Lien
All payment requests must be submitted no later than the completion of project of
September 3D, 2006. Invoices received after September 30, 2006 will not be
considered for payment.
b) Grantee may elect to have vendors and contractors paid through the direct
vendor method, upon submission of appropriate documentation as outlined above
and a specific request that payment be made directly to the vendor or contractor
rather than to Grantee.
c) 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.
d) Documentation shan be submitted to the Toe Administrative Office to show the
receipt and application of in-kind donations of goods, professional services, and
materials. Said documentation should indude 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 TOe Administrative Office. AU
submissions shan identify the items included in the schedule of values attached
hereto and incorporated herein as Exhibit A which are sought to be reimbursed and
shall indicate the percentage of completion of the overall project as of the
submission. This document should be signed by the project architect, engineer,
general contractor or project manager. Photographs showing progress on project
shall be included in any payment request. The Project manager shall certify delivery
to the project site and installation therein of any goods or services provided other
Florida Keys History of Dive Museum 2005
3
than through an architect, engineer or contractor. All work perfonned and goods
received on site and incorporated into the project shall be verified by one of the
foregoing.
e) Grantee must submit all documentation for finat payment on or before the
termination date of this grant of September 30, 2006. Invoices received after
September 30, 2006 will not be considered for payment.
f) At any time that the documentation requirement policies of Monroe County are
revised, such 8$ to require annual inventory reports for equipment purchased under a
TOe capitat project grant, Grantee shall comply thereafter with such increased
requirements, or further funding under the agreement may be terminated by County.
g) Upon successfut completion of this Grant agreement, the Grantee may retain
ownership of the real and personal property acquired and/or improved with fu1ding
under this Grant Agreement However, the Grantee shall complete and sign a
property Reporting Form for personal property and forward said completed form with
the appropriate invoice to the roc Administrative Office. Real property acquired or
improved through funding under this agreement shall remain dedicated for the
purposes set forth herein or for other purposes which promote tourism and retain
ownership of said property in the Grantee. The following terms shall apply:
(i) The Grantee shall have the use of the equipment and other personal property
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 tOllism.
(ii) At such time as any of the conditions in sub-paragraph (i) above cease to
exist, the Grantee shall transfer ownership and possession of equipment and
personal property to aJanother not-for-profit organization which is a facility for which
tourist development taxes may be used pursuant to Florida Statute; and refund to the
County the amount of Tourist Development funding received for the real property
phases of the project at such time that the Grantee demolishes the project facility or
divests itself of ownership or possession of the real property. or the use of the
property no longer has a primary purpose of promoting tourism. This provision shall
survive the termination date of all other provisions of this contract for a period of ten
years. Should the demolition, transfer of ownership, or change to a non-tourist
related purpose occur after the facility has been used for tourist-related purposes for
at least three (3) years, the amount of refund shall be pro-rated based on a useful fife
of ten (1 0) 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 foss, damage, or theft of, and any loss,
damage or injury caused by the use of, reat or personal property or equipment
purchased through funding under this Agreement
4. RECORDS AND REPORTS. The Grantee shall provide financial reports in
summary of activity on forms provided or approved by the TOC, and quarterfy
narrative reports of activity under the approved work plan. 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 TOC,
Florida Keys History of Dive Musewn 2005
4
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 accot.I1ting of aU 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 Coulty, or their agents and representatives. In the event
of an audit exception, the ClIT9f1t fiscat year grant award or subsequent grant awards
will be offset by the amount of the audit exception. In the event the grant is not
renewed or supplemented in future years, the Grantee will be billed by the Grantor for
the amount of the audit exception and shalt promptly repay any audit exception.
(s) PubUc Access. The County and Grantee shalt allow and permit reasonable
access to, and inspection of, aU 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 Coulty 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 aU purposes hereunder. the
Grantee is an independent contractor and not an employee of the Board of County
Commissioners of Monroe County. No statement contained in this agreement shall
be construed as to find the Grantee or any of its employees, contractors, servants or
agents to the employees of the Board of County Commissioners of Monroe County,
and they shall be entitled to none of the rights, privileges or benefits of employees of
Monroe County.
(a) No Personal Uability. 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 individuaf capacity, and no member. officer,
agent or employee of Monroe County shall be liable personally on this Agreement or
be subject to any personal liability or accountability by reason of the execution of this
Agreement.
7. COMPLIANCE WITH LAW. In carrying out its obligations under this agreement,
the Grantee shall abide by aU 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, rufes or regulations .
shall constitute a material breach of this agreement and shall entitle the Grantor to
Florida Keys History of Dive Museum 200S
5
tenninate this agreement immediately upon delivery of written notice of termination to
the Grantee.
8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS
AGREEMENT. The Grantee shall include in all agreements funded under this
agreement the following terms:
a) Anti--discrimination. Contractor agrees that they will not discriminate against any
employees or applicants for employment or against persons for any other benefit or
service under this agreement because of their race, color, reUgion, 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<Jiscrimination.
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 harmlessJindemnification. Contractor acknowledges that this agreement is
funded at least in part by the County ancl agrees to indemnify and hold harmless the
County and any of its officers and employees from and against any and all daims,
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 perfamance
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 daim 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 shan 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:
Florida Keys History of Dive Museum 2005
6
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 InSll"ance with minimum limits of $300,000
combined single limit per occurrence.
The Contractor, the County and the TOC 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.
Ai aU times during the term of this agreement and for one year after acceptance of
the project, Contractor shall maintain on file with the County a certificate of insurance
showing that the aforesaid insurance coverage's are in effect.
e) Licensing and Permits. Contractor warrants that it shall have, prior to
commencement of work under this agreement and at all times during said work, all
required licenses and permits whether federal, state, County or City.
f) Right to Audit The Contractor shall keep such records as are necessary to
document the performance of the agreement and expenses as incurred, and give
access to these records at the request of the TOe, the County, the State of Florida or
authorized agents and representatives of said government bodies.
9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to
indemnify and hold harmless the BOCCITOC and any of its officers and employees
from and against any and alt claims, liabilities, litigation, causes of action, damages,
costs, expenses (including but not limited to fees and expenses arising from any
factual investigation, discovery or preparation for litigation), and the payment of any
and all of the foregoing or any demands, settlements or judgments arising directly or
indirectly under this agreement. The Grantee shall immediately give notice to the
Grantor of any suit, daim or action made against the Grantor that is related to the
activity under this agreement, and win cooperate with the Grantor in the investigation
arising as a result of any suit, action or daim related to this agreement.
(a) Non-Waiver of Immunity. Notwithstanding he provisions of Sec. 286.28, Florida
Statutes, the participation of the County and the Grantee in this Agreement and the
acquisition of any commercial liability insurance coverage. self-insurance coverage,
or locat government liability insurance pool coverage shall not be deemed a waiver of
immunity to the extent of liability coverage, nor shall any contract entered into by the
County be required to contain any provision for waiver.
(b) Privileges and Immunities. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability,
workers' compensation, and other benefits which apply to the activity of officers,
Aorida Keys History of Dive Museum 2005
7
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 shalf apply to the same degree and extent to the performance of such
functions and duties of such officers, agents, volunteers, or employees outside the
territorial limits of the County.
10. NONDISCRIMINATION. County and Grantee agree that there will be no
discrimination against any person, and it is expressly understood that upon a
determination by a court of competent jurisdiction that discrimination has occurred,
this Agreement automatically terminates without any further action on the part of any
party, effective the date of the court order. County or Grantee agree to comply with
all Federal and Florida statutes, and aU local ordinances, as applicable, relating to
nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights
Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or
national origin; 2) Title IX of the Education Amendment of 1972, as amended (20
use 55. 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 use $S. 6101-6107) which prohibits discrimination on
the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (Pl92-255),
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 (Pl91-616), as amended, relating to nondiscrimination on
the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912,
58. 523 and 527 (42 use 85. 690dd-3 and 290ee-3), as amended, relating to
confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil
Rights Act. of 1968 (42 use s. et seq.), as amended, relating to nondiscrimination in
the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990
(42 use s. 1201 Note), as maybe amended from time to time, relating to
nondisaimination on the basis of disability; 10) Any other nondiscrimination
provisions in any Federal or state statutes which may apply to the parties to, or the
subject matter of, this Agreement
11. ANTI-KlCKBACK The Grantee warrants that no person has been employed or
retained to solicit or secure this agreement upon an agreement or understanding for
a commission, percentage, brokerage or contingent fee, and that no employee or
officer of the County or TDC has any interest, financially or otherwise, in the said
funded project, except for general membership. For breach or violation of this
warranty, the Grantor shall have the right to annul this agreement without liability or,
in its discretion, to deduct from the agreement price or consideration, the full amount
of such commission, percentage, brokerage or contingent fee.
12. TERMINATION. This agreement shall terminate on September 30, 2006.
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 tenninated immediately by written notice of
Florida Keys HistOty of Dive Museum 2005
8
tennination delivered in person or by mail to Grantee. The Grantor may terminate
this agreement without cause upon giving written notice of tennination to Applicant
The Grantor shall not be obligated to pay for any services or goods provided by
Grantee after Grantee has received written notice of termination.
13. TERMINATION FOR BREACH. The Grantor may immediately terminate this
agreement for any breach of the terms contained herein. Such tennination shall take
place immediately upon receipt of written notice of said termination. Any waiver of
any breach of covenants herein contained to be kept and performed by Grantee shall
not be deemed or considered as a continuing waiver and shall not operate to bar or
prevent the Grantor from declaring a forfeit....e 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 by 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 appUcable to contracts made and to be perfonned entirely in the
State.
(a) Venue. tn 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 witt lie in the appropriate court or before the appropriate
administrative body in Monroe County, Florida.
(b) Mediation. The Cotsrty and Grantee agree that. in the event of conflicting
interpretations of the terms or a term of this Agreement by or between any of them
the issue shall be submitted to mediation prior to the institution of any other
administrative or legal proceeding.
(c) Severability. If any lenn. covenant, condition or provision of this Agreement
(or the application thereof to any circumstance or person) shall be dedared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining terms,
covenants, conditions and provisions of this Agreement, shall not be affected
thereby; and each remaining term, covenant, condition and provision of this
Agreement shall be valid and shall be enforceable to the fullest extent permitted by
law unless the enforcement of the remaining terms, covenants, conditions and
provisions of this Agreement would prevent the accomplishment of the original intent
of this Agreement. The County and Grantee agree to reform the Agreement to
replace any stricken provision with a valid provision that comes as close as possible
to the intent of the stricken provision.
Florida Keys History of Dive Museum 200S
9
(d) 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 entitted to reasonable attorney's fees, court costs, investigative, and out-of-
pocket expenses, as an award against the non--prevailing party, and shall include
attorneys fees, courts costs. investigative, and out..of-pocket expenses in appellate
proceedings. Mediation proceedings initiated and conducted pursuant to this
Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual
and customary procedures required by the circuit court of Monroe County.
(e) Adjudication of Disputes or Disagreements. County and Grantee agree that aU
disputes and disagreements shall be attempted to be resolved by meet and confer
sessions between representatives of eadl of the parties. If no resolution can be
agreed upon within 30 days after the first meet and confer session. the issue or
issues shall be discussed at a public meeting of the Board of County Commissioners.
If the issue or issues are still not resolved to the satisfaction of the parties, then any
party shafl have the right to seek such relief or remedy as may be provided by this
Agreement or by Florida law.
(f) 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 partidpate, 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
shalf be required to enter into any arbitration proceedings related to this Agreement.
16. ETHICS CLAUSE: Grantee warrants that he has not employed, retained or
otherwise had act on his behalf any former County officer or employee in violation of
Section 2 or Ordinance No. 10-1990 or any County officer or employee in violation of
Section 3 of Ordinance No. 10-1990. For breach or violation of the provision the
Grantor may, at its discretion terminate this agreement without liability and may also,
at its discretion, deduct from the agreement or purchase price, or otherwise recover,
the full amount of any fee, commission, percentage, gift, or consideration paid to the
former or present County officer or employee. The County and Grantee warrant that,
in respect to itself, it has neither employed nor retained any company or person,
other than a bona fide employee working solely for it, to solicit or secure this
Agreement and that it has not paid or agreed to pay any person. company,
corporation. individual, or firm, other than a bona fide employee working solely for it,
any fee, commission. percentage, gift, or other consideration contingent upon or
resulting from the award or making of this Agreement. For the breach or violation of
the provision, the Grantee agrees that the County shalf 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.
Florida Keys History of Dive Museum 2005
10
(a) Covenant of No Interest. CQtJlty and Grantee covenant that neither presently
has any interest, and shall not acquire any interest. which would conflict in any
manner or degree with its performance under this Agreement. and that only interest
of each is to perform and receive benefits as recited in this Agreement.
(b) Code of Ethics. County agrees that officers and employees of the County
recognize and will be required to comply with the standards of conduct for public
officers and employees as delineated in Section 112.313, Florida Statutes, regarding,
but not limited to, solicitation or acceptance of gifts; doing business with one's
agency; LI1authorized compensation; misuse of public position, conflicting
employment or contractual relationship; and disclosure or use of certain information.
17. PUBLIC ENTITY CRIME STATEMENT: A person or affiliate who has been
placed on the convicted vendor list following a conviction for public entity crime may
not submit a bid on an agreement to provide any goods or services to a public entity,
may not submit a bid on a agreement with a public entity for the construction or repair
of a public building or public work. may not submit bids on leases of real property to
public entity, may not be awarded or perfonn work as a contractor, supplier, sub.-
contractor, or consultant under a agreement with any public entity, and may not
transact business with any public entity in excess of the threshold amount provided in
Section 287.017, for CATEGORY TWO for a period of 36 months from the date of
being placed on the convicted vendor list.
18. AUTHORITY: Grantee warrants that it is authorized by law to engage in the
performance of the activities encompassed by the project herein described. Each of
the signatories for the Grantee below certifies and warrants that the Grantee's name
in this agreement is the full name as designated in its corporate charter (if a
corporation); they are empowered to act and contract for the Grantee, and this
agreement has been approved by the Board of Directors of Grantee or other
appropriate authority.
19. LICENSING AND PERMITS: Grantee warrants that it shall have, prior to
commencement of work under this agreement and at all times during said work, all
required licenses and permits whether federal, state, County or City.
20. INSURANCE: Grantee agrees that it maintains in force at its own expense a
liability insurance policy which will insure and indemnify the Grantee and the Grantor
from any suits, claims or actions brought by any person or persons and from all costs
and expenses of litigation brought against the Grantee for such injuries to persons or
damage to property OCQJrring during the agreement or thereafter that results from
performance by Grantee of the obligations set forth in this agreement. At aU 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:
Florida Keys History of Dive Museum 2005
11
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 singte 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 ct coverage.
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 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 Grantee: Dr. Daniel W. Kunz
Florida Keys History of Diving Museum, Inc.
PO Box 897
Islamorada, FL 33036
For Grantor: Lynda Stuart
Monroe County Tourist Development Council
1201 VVhite Street, Suite 102
Key West, FL 33040
and
Suzanne Hutton, Asst. County Attorney
P.O. Box 1026
Key West, Fl 33041-1026
22. CLAIMS FOR FEDERAl OR STATE AID. Contractor and County agree
that each shall be, and is, empowered to apply for, seek, and obtain federal and state
funds to further the purpose of this Agreement; provided that all applications,
requests, grant proposals, and funding solicitations shall be approved by each party
prior to submission,
23. NON-DElEGATION OF CONSTITUTIONAl OR STATUTORY DUTIES. This
Agreement is not intended to, nor shall it be construed as, relieving any participating
entity from any obligation or responsibility imposed upon the entity by law except to
the extent of actual and timely performance thereof by any participating entity, in
which case the performance may be offered in satisfaction of the obligation or
responsibility. Further, this Agreement is not intended to, nor shall it be construed as,
Florida Keys History of Dive Museum 2005
12
authorizing the delegation of the constitutional or statutory duties of the County,
except to the extent permitted by the Florida constitution, state statute, and case law.
24. NON-RELIANCE BY NON-PARTIES. No person or entity shall be entitled to
rely upon the terms, or any of them, of this Agreement to enforce or attempt to
enforce any third-party daim 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 Workptace Statement.
26. NO PERSONAL lIABILITY. No covenant or agreement contained herein shall
be deemed to be a covenant or agreement of any member, officer, agent or
employee of Monroe County in his or her individual capacity, and no member, officer,
agent or employee of Monroe County shan be liable personally on this Agreement or
be subject to any personal liability or accountability by reason of the execution of this
Agreement.
27. FORCE MAJEURE, The Grantee shall not be liable for delay in performance
or failure to complete the project, in whole or in part, due to the occurrence of any
contingency beyond its control or the control of its contractors and subcontractors.
induding 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 natlre (including presence of endangered animal species which
cannot be timely -removed in a safe manner or any act of any governmental authority
which prohibits the project from proceeding as described in the scope of services and
incorporated references and which the Grantee has exercised reasonable care in
the prevention thereof. However, lack of planning for normal and expected weather
conditions for the time of year the project is to be executed shall not constitute an act
of God excusing a delay. Any delay or failure due to the causes stated shall not
constitute a breach of the Agreement; however, the sace shall have the right to
detennine if there will be any reduction to the amount of funds due to the Grantee
after consideration of all relevant facts and cjrcumstances surrounding the delay in
performance or failure to complete the project within the contract period. Upon
demand of TOC or BaCC, the Grantee must furnish evidence of the causes of such
delay or failure. BOCC shan not pay for any goods received or services provided
after the date(s) described in paragraph 1 and Scope of Services.
28. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be regarded as an original, all of which
Florida Keys History of Dive Museum 200S
13
taken together shaJl constitute one and the same instrument and any of the parties
hereto may execute this Agreement by singing any such counterpart
29. SECTION HEADINGS. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that such
section headings are not a part of this Agreement and will not be used in the
interpretation of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be executed the day and year first above written.
.'. " - '. .
.. -.. -'
...SEAL....:.> }:.. ,.:>., :, ..:.... '. "
(. '.' ... '.': ...... ".
. . >. _ J.~ _ .,. ,_ .
, _? ""- ,: - " " ~ ,. .. ~
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A 1'.If:;$T:. OANNY IL. KOUiAGE, CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
'...... ...... .... '.' ...'
no ,.-' . ,. ,--..
"c-,:" :-'--,'"'-"". '_'- ,_' - -' ,:;
",-...". ".::' ,.'
.Bi~-eh~J{~
./ Deputy Clerk
By:
L);# >n ~a,U
~aYO.rlChai~an ,
:D j x(~ I~ -S~r'
(SEAL)
ATTEST:
Florida Keys History of Diving Museum, Inc.
By:
'bO'n~
Secretary
By:
~~
President
Date
Florida Keys Histoty of Dive Museum 2005
14
E,x1~\,;\- A
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PART V:
P~ECT eylXiU AND TIMETABLE - ALL PROJECT&
1. Cost Estimates: List all major work items and the estimated costs of
each. If the project is phased. segregate dearly those costs for the phase to be
assisted by the TOO funds requested. All phases and total estimated cost of the
entire project must be listed here.
Phase 1 B: a) BuIlding Renovation S 51,271
b) AddItional Physical Requirements $ 21.757
c)TechnoIogy I!nhanc8fll8l1tslexhlblts .I1IIJIII
Total Phase 1 B: $232,042
(TOe Aaaiat at 50% or 1118.021).
Total MUSEUM PROJECT Phases 1-5 (10 Vear): $5.845.388
Total colt of phaHlQrOjoct (PhaM 1 B) for whig, funds are requelted:
(not to exceed 50% of the total project cost:
me - PhaH 1 B S 111.021 (TDC Grant Request - 50%)
Total - PhaM 18 $ 232,042
percentage of TOe funds requnted of Total Budget: (not to exceed 50%
of the total project cost)
Ph_ 1 B (TDC Request 1118,021) a) Ph_ 1 B: 50% (by TOC)
All Phases -10 Vears ($1,845,388) b) % of Project 1.5%
2. Confirmation that signed. sealed bid process was utilized for acquiring
architectural services. or that project does not require architectural services.
Architectural services are NOT required and sealed bids are not required
for project segments under $25,000. Museum shall serve as General
Contractor.
c
3. Matching Funds. list the sources and amounts of confirmed matching
funds. (For items involving personnel, indude the number of hours to be spent
on the project activities and their per-hour value). These funds must not be
expended before execution of a Capital Project Agreement Prior donated
services or expenditures are not acceptable as match for grant funds. No more
than fifty (50%) percent of matching funds or twenty-five (25%) percent of the
tota, project shalf be in--kind services. (A rr ACHMENT f - matching funds by
Prlncipafs.
a) Hard..Qollar: Elnatein Fund. Village of Je.amorada, Eaay Storage,
Principals of Museum (Bauers), Friends of the Museum, Gate, etc. up to
$58.011. (ATTACHMENT', EXHIBIT 8)
b) rn-Kind (50%) limit
Total confirmed matching In.KJnd Products:. 14,500 Products
Totaf contfrme<f matching 'n-klnd Servic..: , 1.140 Labor (S131hr/596hrsJ
Exhibit Development by Ora. Bauer S 35.171 Expertise
TOTAL 1 58,011
This amount should equal or exceed TOC Funds requested. (YES. Equal To)
23
(
prqecteq in-kind services a"q aoods shan be aJlocat~ the foUowina va'ues.
S\t~ to negotiation with TOC/Countv. list here all such anticioated values:
(ATTACHMENT f - Valuing In-KInd) The Museum received a TOC BrIck.
and Mortar grant In 2004 for building renovation and exhibit design and
cOMtructlon (PhaH 1A). For the Exhibits. the in-Kind cost figure of
S1801sq.. ft. to build the structure of static, object-based exNbits was
propoeec:I and accepted by the TOe and County Finance Offtce. This wa
the lowest of all documented exhibit design and construction coats
AlCeIved..
c
w. have used a similar approach for determining the cost of technology-
based Interactive exhibits. Such exhibits normally cost subetantlally more
than static object-baed displays. l1IMe rates average 1870 per sq. ft. We
have used a conservative estimate of $431 per sq. ft. IntenJl'8IIve In-KintJ
~ estimated to be ~ fit the total Dtoduct and Installation cost for ttJ.
technololN Intense IntenJctJve exhibits or ~1.771 fA TT.ACHMgNT f- .~
letters for cost estImatesl,
Volunteer labor.. for productlonlaS88mb1ynnstallatlon of exhibit structures
is valued at $131hour based on comparative rates for semi skilled day labor.
In addition. contribution of In-kind product8 or servlcee shall be booked at
the value stated in the providers estimate for those products or services
(ATTACHMENT f).
4. Outline of expansion opportunity for acquiring further match grants.
The Museum hu been requnted to submit a new grant request to the
Einstein Fund and has done so.. We expect to receive a generous grant to
help fMtGlI the roc funding. W. have already ralHd a auntanaal amount
of the matching funds required for the prior TDC grant and have another 13
months to reach our goal. Other Grant ProposalslRequests are pending.
In addition. we have had competent aclvice from retail experts who have
indicated that the Museum Shop. with its contracts to sell original David
Dunleavy and Guy Harvey art should produce significantly greater income
than Initially projected. Reflected In budget (EXHIBIT 5 - budgets)
Reanalysis of the gate potential was also previously underestimated
(EXHIBIT 3 - Conwnunity Benefit AnalysIs). In addition, recent
development of inte....t in cCHnarketing the Museum by focal businesses.
hotefs and clive shops shouJd slgnlficantfy Increase estimated revenue.
Further.. Arts Council. Village of Ie'amorada and Community Fund of the
Rorida Keys grants have been sought.
24
\.n
c
3. Tentative timetable. IOOme all major project activities and the
anticipated time required to COf11)lete each stage of the project on the graph
below.
project Timetable (in months)
MAJOR SEGMENTS OF WORK
Proiect is Seamented into Activities - Each an Individual Comoonent
~ Monthe:
a) Building Renovation
L Ext8nnInatIon 3-4
II. Roof 4-8
ill. Window Wall 1-2
Iv. SlgnlFrame 4-5
b) Additional Phyelcal Requlrementa
I. landscaping
il. Parking Lot
ill. Flnt Hydrant
8-9
11-12
9-10
c
c) Techn01ogicai EnhancementslExhibita
I. Interactive ElectIonlcs
Design
Installation
lL Helmet AquarIum
ill. Chlldntn'. Interactive
1-3
4-8
3- 5
4-8
Please indicate any critical dates and explain why they are critical.
Critical datu. are influenced by the time nec_1Y to navigate the Village
Planning and Building Departments. Further, careful planning of
potantIalIy overlapping activities Is nec...ary to enaunt adequate cash
flow and cash .....rv...
4.
What is the total project cost
Pha.. 1B:
Total Project Coat - Pha... 1-5
$ 232,042
$5,845,368
5. Length of time for project COfll)Ietion (months and year(s):
Phase 18: 12 Montha
Total Project - Pha... 1-5 10 Years
25
EXHIBIT 6 SUMMARY OF COSTS - Contract exhibit A
HISTORY Of OMMO MuseUM
TDCIBOCC BRICKS AND MORTAR CONTRACT 1)5..'06
MUSEUM PHASE 1B
Submissions for reimbursement will be by the categories below and will be by
percentage completed In each area for each reimbursement submission.
a) Building Renovation
1. Extermination
2. Window Wall
3. Roofing
4. Electrical and Trenching for Sign
5. DesignlEngineeringlPennits
TOTAL (a) BUILDING RENOVATION
b) Additional Physical and Code Requirements
1. Landscaping
2. Parking Lot
3. Fire Hydrant
4. DesignlEngineeringlPennits
TOTAL (b) CODe SPECIFICATIONS
c) Technology Enhancements/Exhibits
1A. Technology/Helmet Exhibit. Engineering
B. Technology/Helmet Exhibit. Construction
2A. Interactive Helmet Aquarium
B. Interactive Gas Effects Exhibit
C. Interactive Water Pressure Exhibit
3A Interactive Robotic Tank
B. Interactive Equipment
4. Installation of Technology Enhancements
5. Interpretive/Content Development
TOTAL C INTERACTIVE EXHIBITS
TOTAL PHASE 18 COST (1000k):
TOC Grant Contribution (50%) (a+b+c):
Museum Hard Dollar Match (50%):
Museum In-Kind Match (50%):
a. Products
b. Volunteer/Donated labor@ $13JHr.
b. Principals Professional Services
"PROJECT COST"
1,475
20,804
20,150
5,640
7,210
55,279
5,829
2,640
10,450
2,828
21.757
5,500
25,000
11,825
8,750
7,940
21,477
18,871
19,873
35,771
155,006
232.042
116.021
58,011
58,011
15% of a) 1-4
15% of b) 1~3
20% of c) 1-3
30% of c) 1-4
14,500
7,740
35,771
EXHIBIT B
PROPERTY REPORTING FORM FOR TDC CAPITAL PROJECT
GRANTAWARD.
GRAi'lTEE: List non--expendable equipment/personal property (not including software) costing $1,000 or
more and purchased under the above Contract. Complete the serial number, cost:, location, address. and
control number assigned to item by Grantee in appropriate columns of this form. The Grantee shall
establish a unique identifier for tracking all personal property, and shall provide access to said property by
the lDC, BOCC, or any agents thereof, or the State Controller, upon request.
DESCRIPTION SERIAL NO.lCOST LOCATION/ADDRESS GRANTEE ASSIGNED
CONTROL NUMBER
Attach copy of invoice, bill of sale, or other documentation to support purchase.
GRANTEE:
Signed by Grantee's Project Manager:
DATE: