Item D2
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: APRIL 15,2009
Division:
TDC
Bulk Item: Yes -2L- No
Department:
Staff Contact PersonlPhone #:Maxine Pacini - 296-1552
AGENDA ITEM WORDING:
Approval of an Amendment to Inter-local Agreement with the City of Key West to extend termination
date of agreement for the White Street Pier Rip Rap Installation Project.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
BOCC approved original Agreement at their meeting of October 15, 2008
CONTRACT/AGREEMENT CHANGES:
Amendment to extend termination date of agreement
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $73,500
INDIRECT COST: N/ A
BUDGETED: Yes -X-No
COST TO COUNTY: $73,500 SOURCE OF FUNDS: TDC
REVENUE PRODUCING: Yes X No
AMOUNT PER MONTH Year
APPROVED BY: County Arty -2L OMB/Purchasing ~
Risk Management -L
DOCUMENTATION:
Included X
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 1/09
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: City of Key West Contract # TDC #: 505
-
Effective Date: 10/15/08
Expiration Date: 3/31/2010
Contract Purpose/Description:
Approval of an Amendment to Inter-local Agreement with the City ofKev West to
extend termination date of agreement for the White Street Pier Rip Rap Installation
Proiect.
Contract Manager: Maxine Pacini 3523 TDC # 3
(Name) (Ext. ) (Department/Stop #)
for BOCC meeting on 4/15/09 Agenda Deadline 3/31/09
CONTRACT COSTS
Total Dollar Value of Contract: $ 73,500
Budgeted? Yes~ No D Account Codes:
Grant: $
County Match: $
Current Year Portion: $
117-77040-53040- T-K-97-596-X-530340
ADDITIONAL COSTS
Estimated Ongoing Costs: $~yr For:
(Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Division Director
Changes
I?~e }n Needed f:!J!!iReVi ;w~ ,/ ~
4l:/I21 YesDNo[5 L~ ',.tI~
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~., YesDNo~ C.Hall
Date Out
Risk Management
V h
OiYB ./Purch~ing
County Attorney
Comments:
OMB Form Revised 2/27/01 Mep #2
AMENDMENT (1st AMENDMENTI TO INTER-LOCAL AGREEMENT
THIS AMENDMENT to agreement dated the day of 2009, is entered into by and
between the Board of County Commissioners for Monroe County, on behalf of the Tourist
Development Council, and The City of Key West, a municipal corporation;
WHEREAS, there was an agreement entered into on October 15, 2008 between the parties,
awarding $73,500 to the City of Key West for the White Street Pier Rip Rap Installation Project; and
WHEREAS, it has become necessary to request an extension to agreement to allow time to
resolve permitting issues; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties
agree to the amended agreement as follows:
1. The agreement period as outlined in Paragraph 1 is extended to March 31, 2010, and all
references within the agreement to September 30, 2009 shall be changed to March 31, 2010.
2. The remaining provisions of the agreement dated October 15, 2008, remain in full force and
effect.
IN WITNESS WHEREOF, the parties have set their hands and seal on the day and year first
above written.
(SEAL)
Attest: Danny L. Kolhage, Clerk
Board of County Commissioners
of Monroe County
Deputy Clerk
Mayor/Chairman
-... rVJ-,~
M~~\ MCPH!rSLn
Print ame
Amendment # 1
eity of Key West: White Street Pier Rip Rap - $ 73,500
ID# 505
Inter-local Grant Award AQreement
"~
, THIS AGREEMENT (Agreement) is entered into this ) '-, - day of
/1 ' I
L\ k.l2;'f-, 2008 by and between MONROE COUNTY, a political subdivision of the state of
Florida (County) and the City of Key West a Government organized and operating under
the laws of the state of Florida (Grantee).
WHEREAS, the third penny of Tourist Development Tax may be used to
acquire, construct, extend, enlarge, remodel, repair or improve, convention centers, sports
stadiums, sports arenas, coliseums, auditoriums, fishing piers, museums, zoological parks,
nature centers, beach improvements and beach park facilities which are publicly owned and
operated or owned and operated by not-for-profit corporations, and
WHEREAS, Grantee has applied for funding for the White Street Pier Rip
Rap Installation project; and
WHEREAS, the Grantor and TDC have determined that it is in the best interest
of the County, for purposes of promoting tourism and preserving the heritage of the
community, to attract tourists, and improve the property for use as fishing pier open to the
public;
NOW, THEREFORE, in consideration of the mutual covenants and payments
contained herein, the Grantee and the Grantor have entered into this Agreement on the
terms and conditions as set forth below.
1. GRANT AGREEMENT PERIOD. This Agreement is for the period of October 15,
2008 through to September 30, 2009. 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.
2. SCOPE OF AGREEMENT. The Grantee shall provide the following scope of
services: Seqment 1: rnstallatlon of Rip Rap; Bids/pram; and Project Management.
Segment(s) of the work is/are more particularly described in Exhibit(s) A, detailing the work
and the cost allocable to each segment, attached hereto and incorporated herein by
reference. All work for which grant funds are to be expended must be completed by the
stated termination date of September 30, 2009 and all invoices pertaining to this project shall
be submitted to the Finance Department of Monroe County no later than September 30,
2009 to be considered for payment.
a) There shall be a project manager to acknowledge receipt of goods or work performed.
This Project Manager shall be Janet Muccino, 525 Angela St., Key West, FL 33040 (Tel:
305-8093867/E-mail: jrnucclllo(wkeV'Nestcitvcorn). 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.
City of Key West
FY 2009 Funding
Contract 10#: 505
b) If, and to the extent that, Grantee contracts for any of the work funded under this
Agreement to be performed or completed, Grantee shall give notice to County of the
contractual relationship, provide County with a copy of any and all contracts and shall
require the contractor(s) to comply with all the terms of this contract. Should Grantee
contract the work and then decrease the scope of work to be performed by a contractor,
Grantee shall provide County with an amended contract executed by Grantee and its
contractor.
(i) A Grantee which is a governmental entity shall comply with the procurement
regulations and policies to which it is subject, and shall provide Grantor documentation of
the procurement requirements applicable to the project and compliance therewith.
(ii) A Grantee which is a not-for-profit entity shall undergo procurement processes for
those parts of the project to be contracted (not performed by the entity's employees), which
shall, at a minimum, require the acquisition of two written quotes for work expected to be
under $25,000 or a notarized statement as to why such written quotes were not feasible. For
work expected to be $25,000 or more, a competitive bid process must be performed.
County procurement policies and procedures may be used by the Grantee as a guideline.
c) Grantee shall exercise good internal controls to assure that the project as described in
the funding application shall be completed on a timely basis within the proposed budget and
shall provide to County any certifications, including those by the architect, engineer,
contractor or an independent consultant if necessary, required to establish that materials
which are purported to be applied to the project are in fact so applied. Further verification
shall be required to show that equipment and other fixtures and personal property covered
by this Agreement are delivered to and installed in the project site. When any permit is
required by any governmental agency, copies of plans and other documents which are
submitted to the applicable agency shall be submitted to the County Engineering Division to
enable verification that the scope of services under this Agreement has been provided.
3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount
not to exceed $73,500 (Seventy Three Thousand and Five Hundred Dollar) for materials and
services used to improve the property: Reimbursement request must show that Grantee has
paid in full for materials and services relating to the segment prior to seeking the 50% (fifty
percent) reimbursement from Grantor. Payment shall be 50% (fifty percent) reimbursement
of the total cost of the segment, subject to the cap on expenditures for that segment as set
forth in Exhibit A. Reimbursement can be sought after each segment of the Agreement is
completed and signed by the Monroe County Engineering Department as outlined in 3.a.
The Soard 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 SOCC.
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
City of Key West
FY 2009 Funding
Contract 10#: 505
2
for Payment Summary- AlA Document G702 or similar certification as required below for
governmental entities and not-for-profit entities, invoices, canceled checks and other
documentation necessary to support a claim for reimbursement. Included in said
document3tion shall be proof that the Grantee has received the property, realty or
personalty, for each segment of Agreement as outlined in Exhibit A and paid an amount
equal to or greater than the amount invoiced to the Grantor. It shall be necessary for the
Grantee to contact the County Engineering Division and to arrange for inspections upon the
completion of each segment. The documentation needed to support the payment request
shall be in the form necessary for submission and available to the County Engineer at the
time of inspection. All submissions for payment shall have a proposed schedule of values
for segment(s) and indicate the percentage of completion of the overall project as of the
submission. This document should be signed by the project architect, engineer, general
contractor or project manager. Photos of the progress of the work shall also be submitted
with the payment application. It shall be the responsibility of the project architect, engineer,
general contractor or project manager to initiate the communication with the Monroe County
Engineering Division to facilitate the inspection(s) of the segment of the project. All
submissions requesting payment shall be approved in writing, and signed, by the Monroe
County Engineering Division as to the completion of the segment of the project for which
payment is requested. The application for payment document must be certified through a
statement signed by an officer of the organization and notarized, declaring that
representations in the invoice are true and factual. Grantee shall also provide partial
releases of liens or certifications of non-lien if applicable. Grantor shall retain 10% of any
payment on work in progress until the Grantee has provided a Final Release of Lien for each
vendor/Contractor for whom payment is requested. For projects exceeding $25,000 in TDC
funding under this Agreement, final payment will not be made until the following documents
are complete and submitted to the Grantor:
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 (when applicable)
Fina~ Release of Lien or Affidavit and Partiat Release- of Lien--
For projects for which TDC funding under this Agreement is $25,000 or less, the AlA
documentation is not required, but sufficient documentation must be submitted to County to
provide similar assurances that the work has been completed and contractors/suppliers
pard.
All payment requests must be submitted no later than the completion of project of
September 30, 2009. Invoices received after September 30, 2009 will not be considered for
payment.
b) Documentation shall be submitted to the TDC Administrative Office to show the receipt
and application of in-kind donations of goods, professional services, and materials. Said
City of Key West
FY 2009 Funding
Contract 10#: 505
3
documentation should include invoices, bills of lading, etc., and be verified as received and
applied to the project through a notarized statement of the project architect, engineer,
general contractor or project manager. The receipt and application to the project of
volunteer labor are to be documented and verified by notarized signature of the project
architect, engineer, general contractor or project manager, and said documentation
submitted to the TOC Administrative Office. All submissions shall identify the items included
in Exhibit A and grantee shall complete the Application for Payment form which is provided
within the payment/reimbursement kit provided to the grantee, listing the schedule of values
which are sought to be reimbursed and shall indicate the percentage of completion of the
overall project as of the submission. This document should be signed by the project
architect, engineer, general contractor or project manager.
Photographs showing progress on project shall be included in any payment request. The
Project Manager shall certify delivery to the project site and installation therein of any goods
or services provided other than through an architect, engineer or contractor. All work
performed and goods received on site and incorporated into the project shall be verified by
one of the foregoing. Submission of any documentation which is untrue, falsified, or
otherwise misrepresents the work which has been completed, paid, or donated shall
constitute a breach of agreement, for which breach the contract may be immediately
terminated at the discretion of the County, whose decision shall be final.
c) Grantee must submit all documentation for final payment on or before the termination
date of this grant of September 30, 2009. Invoices received after September 30, 2009 will
not be considered for payment.
d) At any time that the documentation requirement policies of Monroe County are revised,
such as to require annual inventory reports for equipment purchased under a TOC capital
project grant, Grantee shall comply thereafter with such increased requirements, or further
funding under the Agreement may be terminated by County.
e) Upon successful completion of this Grant Agreement, the Grantee may retain
ownership of the real and personal property acquired and/or improved with funding under
this Grant Agreement. However, the Grantee shall maintain, preserve and operate the
property which was acquired or improved under this Agreement for the uses and purposes
which qualified the Grantee for tourist development tax funding. Grantee shall complete and
sign a Property Reporting Form (provided within payment/reimbursement package) for
personal property and forward said completed form with the appropriate invoice to the TOC
Administrative Office. Real property acquired or improved through funding under this
Agreement shall remain dedicated for the purposes set forth herein or for other purposes
which promote tourism and ownership of said property shall be retained by the Grantee.
The following terms shall apply:
(i) The Grantee shall have the use of the property, including both realty and personalty
acquired with funding under this agreement, at the project site for so long as the facility is
operated by Grantee, open to the public, and has a primary purpose of promoting tourism.
At such time as any of the conditions in the preceding sentence shall cease to exist, the
Grantee shall transfer ownership and possession of equipment and personal property to a
local government or another not-for-profit organization which is a facility for which tourist
City of Key West
FY 2009 Funding
Contract 10# 505
4
development taxes may be used pursuant to Florida Statute with prior approval from TDC
and BOCC.
(ii) At any time that the Grantee: (a) elects to stop the project or otherwise decide not to
place into service for tourist-related purposes the facility acquired, constructed, or renovated
with tourist development tax funding, (b) demolishes the project facility or divests itself of
ownership or possession of the real property, or (c) ceases the use of the property with a
primary purpose of promoting tourism, Grantee shall, pursuant to the formula set forth
hereafter, refund to the County the Tourist Development funding. This provision shall survive
the termination date of all other provisions of this contract for a period of ten years. Should
the demolition, transfer of ownership, or change to a non-tourist related purpose occur after
the facility has been used for tourist-related purposes for at least three (3) years, the amount
of refund shall be pro-rated based on a useful life of ten (10) years.
(Hi) The Grantee is responsible for the implementation of adequate maintenance
procedures to keep the real and personal property in good operating condition.
(iv) The Grantee is responsible for any loss, damage, or theft of, and any loss, damage or
injury caused by the use of, real or personal property or equipment purchased through
funding under this Agreement.
4. RECORDS AND REPORTS. The Grantee shall keep such records as are necessary to
document the performance of the Agreement and expenses as incurred, and give access to
these records at the request of the TDC, the County, the State of Florida or authorized
agents and representatives of said government bodies. The Grantee shall also provide
such access to the personal property and equipment purchased under this Agreement. It is
the responsibility of the Grantee to maintain appropriate records in accordance with
generally accepted accounting principles consistently applied to insure a proper accounting
of all funds and expenditures. The Grantee understands that it shall be responsible for
repayment of any and all audit exceptions which are identified by the Auditor General for the
State of Florida, the Clerk of Court for Monroe County, the Board of County Commissioners
for Monroe County, or their agents and representatives. In the event of an audit exception,
the current 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
shall promptly repay any audit exception.
(a) Public Access. The County and Grantee shall allow and permit reasonable access to,
and inspection of, all documents, papers, letters or other materials in its possession or under
its control subject to the provisions of Chapter 119, Florida Statutes, and made or received
by the County and Grantee in conjunction with this Agreement; and the County shall have
the right to unilaterally cancel this Agreement upon violation of this provision by Grantee.
5. MODIFICATIONS AND AMENDMENTS. Any and all modifications of the terms of this
Agreement shall be only amended in writing and approved by the Board of County
Commissioners for Monroe County. The terms, covenants, conditions, and provisions of
City of Key West
FY 2009 Funding
Contract 10#' 505
5
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
Grantee is an independent contractor and not an employee of the Board of County
Commissioners of Monroe County. No statement contained in this Agreement shall be
construed as to find the Grantee or any of its employees, contractors, servants or agents to
the employees of the Board of County Commissioners of Monroe County, and they shall be
entitled to none of the rights, privileges or benefits of employees of Monroe County.
(a) No Personal Liability. No covenant or Agreement contained herein shall be deemed to
be a covenant or Agreement of any member, officer, agent or employee of Monroe County in
his or her individual capacity, and no member, officer, agent or employee of Monroe County
shall be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
7. COMPLIANCE WITH LAW. In carrying out its obligations under this Agreement, the
Grantee shall abide by all statutes, ordinances, rules and regulations pertaining to or
regulating the provisions of this Agreement, including those now in effect and hereafter
adopted. Any violation of said statutes, ordinances, rules or regulations shall constitute a
material breach of this Agreement and shall entitle the Grantor to terminate this Agreement
immediately upon delivery of written notice of termination to the Grantee.
8. RESTRICTIONS ON AGREEMENTS ENTERED PURSUANT TO THIS AGREEMENT.
The Grantee shall include in all Agreements funded under this Agreement the following
terms:
a) Anti-discrimination. Contractor agrees that 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 of an individual to perform in a
position of employment, and to abide by all federal and state laws. regarding non-
discrimination. . .. .
b) Anti-kickback. Contractor warrants that no person has been employed or retained to
solicit or secure this Agreement upon an Agreement or understanding for a commission,
percentage, brokerage or contingent fee, and that no employee or officer of the Contractor
has any interest, financially or otherwise, in contractor. For breach or violation of this
warranty, the Contractor shall have the right to annul this Agreement without liability or, in its
discretion, to deduct from the Agreement price or consideration, the full amount of such
commission, percentage, brokerage or contingent fee. Contractor acknowledges that it is
aware that funding for this Agreement is available at least in part through the County and
that violation of this paragraph may result in the County withdrawing funding for the Project.
City of Key West
FY 2009 Funding
Contract 10#: 505
6
c) Hold harmless/indemnification. Contractor acknowledges that this Agreement is funded
at least in part by the County and agrees to indemnify and hold harmless the County and
any of its officers and employees from and against any and all claims, liabilities, litigation,
causes of action, damages, costs, expenses (including but not limited to fees and expenses
arising from any factual investigation, discovery or preparation for litigation), and the
payment of any and all of the foregoing or any demands, settlements or judgments
(collectively claims) arising directly or indirectly from any negligence or criminal conduct on
the part of Contractor in the performance of the terms of this Agreement. The Contractor
shall immediately give notice to the County of any suit, claim or action made against the
Contractor that is related to the activity under this Agreement, and will cooperate with the
County in the investigation arising as a result of any suit, action or claim related this
Agreement.
d) Insurance. Contractor agrees that it maintains in force at its own expense a liability
insurance policy which will insure and indemnify the Contractor and the County from any
suits, claims or actions brought by any person or persons and from all costs and expenses
of litigation brought against the Contractor for such injuries to persons or damage to property
occurring during the Agreement or thereafter that results from performance by Contractor of
the obligations set forth in this Agreement. At all times during the term of this Agreement
and for one year after acceptance of the project, Contractor shall maintain on file with the
County a certificate of the insurance of the carriers showing that the aforesaid insurance
policy is in effect. The following coverage's shall be provided:
1. Workers Compensation insurance as required by Florida Statutes.
2. Commercial General Liability Insurance with minimum limits of $500,000 per
occurrence for bodily injury, personal injury and property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000
combined single limit per occurrence.
The Contractor, the County and the TOC shall be named as additional insured, exempt
workers compensation.u The policies- shaft provide no less than 30- days notice of
cancellation, non-renewal or reduction of coverage.
At all times during the term of this Agreement and for one year after acceptance of the
project, Contractor shall maintain on file with the County a certificate of insurance showing
that the aforesaid insurance coverage's are in effect.
e) Licensing and Permits. Contractor warrants that it shall have, prior to commencement of
work under this Agreement and at all times during said work, all required licenses and
permits whether federal, state, County or City.
f) Right to Audit. The Contractor shall keep such records as are necessary to document
the performance of the Agreement and expenses as incurred, and give access to these
City of Key West
FY 2009 Funding
Contract 10#: 505
7
records at the request of the TDC, the County, the State of Florida or authorized agents and
representatives of said government bodies.
9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and
hold harmless the BOCC/TDC and the 3406 North Roosevelt Blvd. Corporation or any of its
officers and employees from and against any and all claims, liabilities, litigation, causes of
action, damages, costs, expenses (including but not limited to fees and expenses arising
from any factual investigation, discovery or preparation for litigation), and the payment of any
and all of the foregoing or any demands, settlements or judgments arising directly or
indirectly under this Agreement. The Grantee shall immediately give notice to the Grantor of
any suit, claim or action made against the Grantor that is related to the activity under this
Agreement, and will cooperate with the Grantor in the investigation arising as a result of any
suit, action or claim related to this Agreement.
(a) Non-Waiver of Immunity. Notwithstanding he provIsions of Sec. 768.28, Florida
Statutes, the participation of the County and the Grantee in this Agreement and the
acquisition of any commercial liability insurance coverage, self-insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of immunity to
the extent of liability coverage, nor shall any contract entered into by the County be required
to contain any provision for waiver.
(b) Privileges and Immunities. All of the privileges and immunities from liability, exemptions
from laws, ordinances, and rules and pensions and relief, disability, workers' compensation,
and other benefits which apply to the activity of officers, agents, or employees of any public
agents or employees of the County, when performing their respective functions under this
Agreement within the territorial limits of the County shall apply to the same degree and
extent to the performance of such functions and duties of such officers, agents, volunteers,
or employees outside the territorial limits of the County.
10. NONDISCRIMINATION. County and Grantee agree that there will be no discrimination
against any person, and it is expressly understood that upon a determination by a court of
competent jurisdiction that discrimination has. occurred, this. Agreem~nt automatically
terminates without any further action on the part of any party, effective the date of the court
order. County or Grantee agree to comply with all Federal and Florida statutes, and all local
ordinances, as applicable, relating to nondiscrimination. These include but are not limited to:
1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the
basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as
amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the
basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794),
which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of
1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination on the basis of
age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended,
relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol
Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as
amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The
Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as
Cify of Key West
FY 2009 Funding
Contract 10#. 505
8
amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of
the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in
the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42
U SC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on
the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state
statutes which may apply to the parties to, or the subject matter of, this Agreement.
11. ANTI-KICKBACK. The Grantee warrants that no person has been employed or retained
to solicit or secure this Agreement upon an agreement or understanding for a commission,
percentage, brokerage or contingent fee, and that no employee or officer of the County or
TOC 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 30,2009. Termination
prior thereto shall occur whenever funds cannot be obtained or cannot be continued at a
level sufficient to allow for the continuation of this Agreement pursuant to the terms herein.
In the event that funds cannot be continued at a level sufficient to allow the continuation of
this Agreement pursuant to the terms specified herein, this Agreement may then be
terminated immediately by written notice of termination delivered in person or by mail to
Grantee. The Grantor may terminate this Agreement without cause upon giving written
notice of termination to Applicant. The Grantor shall not be obligated to pay for any services
or goods provided by Grantee after Grantee has received written notice of termination.
13. TERMINATION FOR BREACH. The Grantor may immediately terminate this
Agreement for any breach of the terms contained herein. Such termination shall take place
immediately upon receipt of written notice of said termination. Any waiver of any breach of
covenants herein contained to be kept and performed by Grantee shall not be deemed or
considered as a continuing waiver and shall not operate to bar or prevent the Grantor from
declaring a forfeiture for any succeedinRbreach either of the same conditions or ofanJ'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
City of Key West
FY 2009 Funding
Contract 10#. 505
9
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 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.
(c) Attorney's Fees and Costs. The County and Grantee agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party relative to
the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an
award against the non-prevailing party, and shall include attorney's fees, courts costs,
investigative, and out-of-pocket expenses in appellate proceedings.
(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 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.
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
City of Key West
FY 2009 Funding
Contract 10#. 505
10
discretion terminate this Agreement without liability and may also, at its discretion, deduct
from the Agreement or purchase price, or otherwise recover, the full amount of any fee,
commission, percentage, gift, or consideration paid to the former or present County officer or
employee. The County and Grantee warrant that, in respect to itself, it has neither employed
nor retained any company or person, other than a bona fide employee working solely for it,
to solicit or secure this Agreement and that it has not paid or agreed to pay any person,
company, corporation, individual, or firm, other than a bona fide employee working solely for
it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting
from the award or making of this Agreement. For the breach or violation of the provision, the
Grantee agrees that the County shall have the right to terminate this Agreement without
liability and, at its discretion, to offset from monies owed, or otherwise recover, the full
amount of such fee, commission, percentage, gift, or consideration.
(a) Covenant of No Interest. County and Grantee covenant that neither presently has
any interest, and shall not acquire any interest, which would conflict in any manner or degree
with its performance under this Agreement, and that only interest of each is to perform and
receive benefits as recited in this Agreement.
(b) Code of Ethics. County agrees that officers and employees of the County recognize
and will be required to comply with the standards of conduct for public officers and
employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to,
solicitation or acceptance of gifts; doing business with one's agency; unauthorized
compensation; misuse of public position, conflicting employment or contractual relationship;
and disclosure or use of certain information.
17. PUBLIC ENTITY CRIME STATEMENT: A person or affiliate who has been placed
on the convicted vendor list following a conviction for public entity crime may not submit a
bid on an Agreement to provide any goods or services to a public entity, may not submit a
bid on a Agreement with a public entity for the construction or repair of a public building or
public work, may not submit bids on leases of real property to public entity, may not be
awarded or perform work as a contractor, supplier, sub-contractor, or consultant under a
Agreement with any public entity, and may not transact business with .any public entity in
- ,- - - - - -- - - - - - - --
excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a
period of 36 months from the date of being placed on the convicted vendor list. 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.
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.
City of Key West
FY 2009 Funding
Contract 10#. 505
11
20. INSURANCE: Grantee agrees that it maintains in force at its own expense a liability
insurance policy which will insure and indemnify the Grantee and the Grantor from any suits,
claims or actions brought by any person or persons and from all costs and expenses of
litigation brought against the Grantee for such injuries to persons or damage to property
occurring during the Agreement or thereafter that results from performance by Grantee of
the obligations set forth in this Agreement. At all times during the term of this Agreement and
for one year after acceptance of the project, Grantee shall maintain on file with the Grantor a
certificate of the insurance of the carriers showing that the aforesaid insurance policy is in
effect. The following coverage's shall be provided:
1. Workers Compensation insurance as required by Florida Statutes.
2. Commercial General Liability Insurance with minimum limits of $500,000
Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall
be $250,000 per Person $500,000 per occurrence $50,000 property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000
combined single limit per occurrence.
The Grantee, the Grantor and the TOC 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 and either:
· Original Certificate of Insurance
or
· Certified copy of the actual insurance policy
Or
· Certificate of Insurance e-maile<t from Insurance Agent/Company to County
Risk Management - Telephone Maria Slavik at 295-3178 for details
(Certificates can be e-mailed directly from the insurance agency to:
Slavik-Maria@MonroeCountv-FL.Gov - The e-mail must state that this is a
certificate for a TDC project and should be forwarded to Maxine Pacini 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 Clerks office. The Insurance policy must state that the Monroe
County BOCC and Monroe County TDC is the Certificate Holder and additional
Insured for this contract. Insurance should be mailed to:
City of Key West
FY 2009 Funding
Contract 10#: 505
12
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 had delivered or mailed, postage prepaid, to the other party by certified mail, returned
receipt requested to the following:
For Grantee: Janet Muccino
City of Key West
525 Angela St.
Key West, FL 33040
For Grantor: Lynda Stuart
Monroe County Tourist Development Council
1201 White Street, Suite 102
Key West, FL 33040
and
Cynthia Hall, 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 shalt it be construed as, relieving any participating entity
from any obligation or responsibility imposed upon the entity by law except to the extent of
actual and timely performance thereof by any participating entity, in which case the
performance may be offered in satisfaction of the obligation or responsibility. Further, this
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the County, except to the extent permitted by the Florida
constitution, state statute, and case law.
24. NON-RELIANCE BY NON-PARTIES. No person or entity shall be entitled to rely
upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-
party claim or entitlement to or benefit of any service or program contemplated hereunder,
and the County and the Grantee agree that neither the County nor the Grantee or any agent,
officer, or employee of either shall have the authority to inform, counsel, or otherwise
indicate that any particular individual or group of individuals, entity or entities, have
City of Key West
FY 2009 Funding
Contract 10#: 505
13
entitlements or benefits under this Agreement separate and apart, inferior to, or superior to
U1e community in general or for the purposes contemplated in this Agreement.
25. ATTESTATIONS. Grantee agrees to execute such documents as the County may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a
Drug-Free Workplace Statement.
26. NO PERSONAL LIABILITY. No covenant or Agreement contained herein shall be
deemed to be a covenant or Agreement of any member, officer, agent or employee of
Monroe County in his or her individual capacity, and no member, officer, agent or employee
of Monroe County shall be liable personally on this Agreement or be subject to any personal
liability or accountability by reason of the execution of this Agreement.
27. FORCE MAJEURE. The Grantee shall not be liable for delay in performance or
failure to complete the project, in whole or in part, due to the occurrence of any contingency
beyond its control or the control of its contractors and subcontractors, including war or act of
war whether an actual declaration thereof is made or not, act of terrorism impacting travel in
the United States, insurrection, riot or civil commotion, act of public enemy, epidemic,
quarantine restriction, storm, flood, drought or other act of God, or act of nature (including
presence of endangered animal species which cannot be timely removed in a safe manner
or any act of any governmental authority which prohibits the project from proceeding as
described in the scope of services and incorporated references and which the Grantee has
exercised reasonable care in the prevention thereof. However, lack of planning for normal
and expected weather conditions for the time of year the project is to be executed shall not
constitute an act of God excusing a delay. Any delay or failure due to the causes stated
shall not constitute a breach of the Agreement; however, the BOCC shall have the right to
determine if there will be any reduction to the amount of funds due to the Grantee after
consideration of all relevant facts and circumstances surrounding the delay in performance
or failure to complete the project within the contract period. Upon demand of TDC or BOCC,
the Grantee must furnish evidence of the causes of such delay or failure. BOCC shall not
pay for any goods received or services provided after the date(s) described in paragraph 1
and Scope of Services.
28. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be regarded as an original, all of which taken
together shall constitute one and the same instrument and any of the parties hereto may
execute this Agreement by singing any such counterpart.
29. SECTION HEADINGS. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are not
a part of this Agreement and will not be used in the interpretation of any provision of this
Agreement.
City of Key West
FY 2009 Funding
Contract 10#.' 505
14
IN WITNESS WHEREOF, the parties
executedJhELday and year first above written.
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City of Key West
FY 2009 Funding
Contract 10#, 505
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