Item D04BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: DECEMBER 17, 2008 Division: TDC
Bulk Item: Yes X No _ Department:
Staff Contact Person/Phone #: Maxine Pacini
296-1552
AGENDA ITEM WORDING:
Approval of an Amendment to Agreement with Key West Botanical Garden Society, Inc. to extend
termination date to July 30, 2009.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
BOCC approved original Agreement at their meeting of November 14, 2007
CONTRACT/AGREEMENT CHANGES:
Amendment to extend
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $265,000 BUDGETED: Yes X No
COST TO COUNTY: $265,000 SOURCE OF FUNDS: TDC
REVENUE PRODUCING: Yes X No AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing X Risk Management X
DOCUMENTATION:
DISPOSITION:
Revised 11/06
Included X Not Required
AGENDA ITEM #
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Key West Botanical Garden Contract # 394
Society, Inc. Effective Date: 11/14/07
Expiration Date: 9/30/09
Contract Purpose/Description:
Approval of an Amendment to Agreement with Key West Botanical Garden Society,
Inc. to extend termination date to July 30, 2009.
Contract Manager: Maxine Pacini 3523 TDC # 3
(Name) (Ext.) (Department/Stop #)
for BOCC meeting on 12/17/08 Agenda Deadline 12/2/08
CONTRACT COSTS
Total Dollar Value of Contract: $ 265,000 Current Year Portion: $
Budgeted? Yes® No ❑ Account Codes : 117-77040-530340-T-B-87-614-Y-530340
Grant: $
County Match:
Estimated Ongoing Costs: $_
(Not included in dollar value above
ADDITIONAL COSTS
/yr For:
(eg. maintenance,
CONTRACT REVIEW
Changes
Date In Needed ieWer
Division Director la*V Yes[:] No❑E , tC_
Risk Management ��7_s� Yes❑ NoF- f
O.M.B./Purchasing 0 a 4 f Yes❑ No�
County Attorney Yes❑ No C. Hall
Comments:
umb t'orm Kevlsea G/L //U I W-F q/-
salaries, etc.
Date Out
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THIS AMENDMENT to agreement dated the day of 2008, is entered into by and between the Board
of County Commissioners for Monroe County, on behalf of the Tourist Development Council, and Key West
Botanical Garden Society, Inc.
WHEREAS, there was a contract entered into on November 14, 2007 between the parties, awarding $265,000
to the Key West Botanical Garden Society, Inc. for the Creation of a Nationally Acclaimed Aviary Eco-Tourism
Attraction — Phase III; and
WHEREAS, the contract will expire on April 30, 2009; and
WHEREAS, contract needs to be extended for an additional period of time to allow time for completion of
project; and 1'
WHEREAS, the date for submission of invoices to the County Finance Department needs to be revised;
NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties agree to the
amended agreement as follows:
1. Paragraph 1 of the Agreement shelf read as follows: GRANT AGREEMENT PERIOD. This Agreement is for the
period of November 14, 2007 through to July 30, 2009.
2. All date references to submission of invoices to the Finance Department shall be changed to September 30,
2009. invoices received after September 30, 2009 wlll not be considered for payment.
3. The remaining provisions of the contract dated November 14, 2007 remain in full force and effect.
IN WITNESS WHEREOF, the parries have set their hands and seal on the day and year first above written.
(SEAL) Board of County Commissioners
Attest: Danny L. Kolhage, Clerk of Monroe County
Deputy Clerk
(CORPORATE SEAL)
Attest;
By.
Secretary
Print Name
OR TWO WITNESSES
(1)
(1}
Print Name
Amendment #1
Key West Botanical Garden Society - $265,000
Contract #: 394
Mayor/Chairman
Key nical Garden Society, Inc.
WeZ7President
Print Name
(2)
(2)
Print Name
MONROE COUNTY ATTORNEY
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October 15, 2008
Ms, Maxine Pacini
Monroe County Tourist Development Council
White Street
Key West, Florida 33040
Dear Maxine:
The Key West Botanical Garden Society is requesting a ninety day
extension for its current 2008 contract from April 2009 to July 30 2009,
due to a critical issue with the City and soil removal from the site.
We are working on a solution and should have this resolved no later than
November 2008.
Please let me know if you need any further information.
Thank you so much,
Carolann Sharkey
Chairman and full time volunte
Grant Award Agreement
THIS AGREEMENT (Agreement) is entered into this % ��—day of
Z 2007 by and between MONROE COUNTY, a political subdivision of the state
of Florida (County) and Key West Botanical Garden Society, Inc. a not for profit,
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 Phase III: Creation
of a Nationally Acclaimed Aviary Eco-Tourism Attraction; 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 a museum and
nature center 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 November
14, 2007 through to April 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 and 13 below.
2. SCOPE OF AGREEMENT. The Grantee shall provide the following scope of
services: Project Management; Labor and materials for boardwalks; Labor and material
for the bridges and platforms; Labor and material for digging the pond and creating
berms or hills (earth moving); Purchase and installation of plants and trees; ADA
compliant pathways; security and safety fencing and safety signage; visitor signage (not
plant labels or labeling machine); payment of expenses related to updated documents
that includes engineering, hydrology, surveys and "as Built" documents deemed
necessary for any further permitting and for final Certificate of Occupancy and
Inspections. All of the above mentioned work will be completed within the section
outlined in Exhibit B of this contract showing TDC '08 project. Segment(s) of the work
is/are more particularly described in Exhibit(s) A and B, 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 April 30, 2009 and all invoices pertaining to this project shall be
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
submitted to the Finance Department of Monroe County no later than May 15, 2009 to
be considered for payment.
a) There shalt be a project manager to acknowledge receipt of goods or work
performed. This Project Manager shalt be Carotann Sharkey, 5210 College Road, Key
West, FL 33040 (Telephone: 305-304-3666/e-mail: sharkeyfun(@,aot.com). Should
there be a change in the project manager specified in the Grantee's application, a new
project manager shalt be designated and notice of the designation shalt be provided to
TDC/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 shalt give notice to County of the
contractual relationship, provide County with a copy of any and all contracts and shalt
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 shalt provide County with an amended contract executed by Grantee and its
contractor.
(i) A Grantee which is a governmental entity shalt comply with the procurement
regulations and policies to which it is subject, and shalt provide Grantor documentation
of the procurement requirements applicable to the project and compliance therewith.
(ii) A Grantee which is a not -for -profit entity shalt undergo procurement processes
for those parts of the project to be contracted (not performed by the entity's employees),
which shalt, 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. In the event that the monetary contractual process commenced
prior to the effective date of this funding grant Agreement, and the guidelines above
were not followed, Grantee shalt submit with its reimbursement request a notarized
statement which details the Grantee's procurement efforts to ensure the best service for
the most economical price. Grantee shalt provide Grantor detailed documentation of
the procurement process used.
c) Grantee shalt exercise good internal controls to assure that the project as described
in the funding application shalt be completed on a timely basis within the proposed
budget and shalt 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 shalt be submitted to the
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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 $265,000 (Two Hundred and Sixty Five Thousand Dollars) 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 Board of County Commissioners and
the Tourist Development Council assume no liability to fund this Agreement for an
amount in excess of this award. Monroe County's performance and obligation to pay
under this Agreement is contingent upon an annual appropriation by the BOCC.
a) Payment shall be made upon the completion of a specific segment as outlined in
the Scope of Services and Exhibit A. Payment for expenditures permissible by law and
County policies shall be made through reimbursement to Grantee upon presentation of
Application for Payment Summary— AIA 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. Payment is a 50% (fifty percent) reimbursement of the total cost of each
segment of the project, 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.
Included in said documentation 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
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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:
AIA Document
G-702 Application for Payment Summary
AIA Document
G-704 Certificate of Substantial Completion
AIA Document
G-706 Contractor's Affidavit of Debts & Claims
AIA Document
G-706A Contractor's Affidavit of Release of Liens
AIA Document
G-707 Consent of Surety to Final Payment (when applicable)
Final Release of Lien or Affidavit and Partial Release of Lien
For projects for which TDC funding under this Agreement is $25,000 or less, the AIA
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 paid.
All payment requests must be submitted no later than the completion of project of April
30, 2009. Invoices received after May 15, 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 documentation should include invoices, bills of lading, etc., and be
verified as received and applied to the project through a notarized statement of the
project architect, engineer, general contractor or project manager. The receipt and
application to the project of volunteer labor are to be documented and verified by
notarized signature of the project architect, engineer, general contractor or project
manager, and said documentation submitted to the TDC Administrative Office. All
submissions 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.
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
c) Grantee must submit all documentation for final payment on or before the termination
date of this grant of April 30, 2009. Invoices received after May 15, 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
TDC 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 TDC Administrative Office. Real property
acquired or improved through funding under this Agreement shall remain dedicated for
the purposes set forth herein or for other purposes which 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 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
often (10) years.
(iii) The Grantee is responsible for the implementation of adequate maintenance
procedures to keep the real and personal property in good operating condition.
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
(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 fiscal year grant award or subsequent grant
awards will be offset by the amount of the audit exception. In the event the grant is not
renewed or supplemented in future years, the 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 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
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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 fora commission,
percentage, brokerage or contingent fee, and that no employee or officer of the
Contractor has any interest, financially or otherwise, in contractor. For breach or
violation of this warranty, the Contractor shall have the right to annul this Agreement
without liability or, in its discretion, to deduct from the Agreement price or consideration,
the full amount of such commission, percentage, brokerage or contingent fee.
Contractor acknowledges that it is aware that funding for this Agreement is available at
least in part through the County and that violation of this paragraph may result in the
County withdrawing funding for the Project.
c) Hold harmless/indemnification. Contractor acknowledges that this Agreement is
funded at least in part by the County and agrees to indemnify and hold harmless the
County and any of its officers and employees from and against any and all claims,
liabilities, litigation, causes of action, damages, costs, expenses (including but not limited
to fees and expenses arising from any factual investigation, discovery or preparation for
litigation), and the payment of any and all of the foregoing or any demands, settlements
or judgments (collectively claims) arising directly or indirectly from any negligence or
criminal conduct on the part of Contractor in the performance of the terms of this
Agreement. The Contractor shall immediately give notice to the County of any suit,
claim or action made against the Contractor that is related to the activity under this
Agreement, and will cooperate with the County in the investigation arising as a result of
any suit, action or claim related this Agreement.
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
d) Insurance. Contractor agrees that it maintains in force at its own expense a liability
insurance policy which will insure and indemnify the Contractor and the County from any
suits, claims or actions brought by any person or persons and from all costs and
expenses of litigation brought against the Contractor for such injuries to persons or
damage to property occurring during the Agreement or thereafter that results from
performance by Contractor of the obligations set forth in this Agreement. At all times
during the term of this Agreement and for one year after acceptance of the project,
Contractor shall maintain on file with the County a certificate of the insurance of the
carriers showing that the aforesaid insurance policy is in effect. The following
coverage's shall be provided:
1. Workers Compensation insurance as required by Florida Statutes.
2. Commercial General Liability Insurance with minimum limits of $500,000 per
occurrence for bodily injury, personal injury and property damage.
3. Comprehensive Auto Liability Insurance with minimum limits of $300,000
combined single limit per occurrence.
The Contractor, the County and the TDC shall be named as additional insured, exempt
workers compensation. The policies shall provide no less than 30 days notice of
cancellation, non -renewal or reduction of coverage.
At all times during the term of this Agreement and for one year after acceptance of the
project, Contractor shall maintain on file with the County a certificate of insurance
showing that the aforesaid insurance coverage's are in effect.
e) Licensing and Permits. Contractor warrants that it shall have, prior to commencement
of work under this Agreement and at all times during said work, all required licenses and
permits whether federal, state, County or City.
f) Right to Audit. The Contractor shall keep such records as are necessary to
document the performance of the Agreement and expenses as incurred, and give
access to these records at the request of the TDC, the County, the State of Florida 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
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #. 394
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
Agreement automatically terminates without any further action on the part of any party,
effective the date of the court order. County or Grantee agree to comply with all Federal
and Florida statutes, and all local ordinances, as applicable, relating to
nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act
of 1964 (PI_ 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 (PI_ 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 (PI_ 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 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 USC 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.
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
11. ANTI -KICKBACK. The Grantee warrants that no person has been employed or
retained to solicit or secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage or contingent fee, and that no employee or officer of
the County or TDC has any interest, financially or otherwise, in the said funded project,
except for general membership. For breach or violation of this warranty, the Grantor
shall have the right to annul this Agreement without liability or, in its discretion, to deduct
from the Agreement price or consideration, the full amount of such commission,
percentage, brokerage or contingent fee.
12. TERMINATION. This Agreement shall terminate on September 30, 200_.
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 succeeding breach either of the same
conditions or of any other conditions. Failure to provide Grantor with certification of use
of matching funds or matching in -kind services at or above the rate of request for
reimbursement or payment is a breach of Agreement, for which the Grantor may
terminate this Agreement upon giving written notification of termination.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and all prior
Agreements with respect to such subject matter between the Grantee and the Grantor.
15. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES.
This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts made and to be performed entirely in the State.
This Agreement is not subject to arbitration. Mediation proceedings initiated and
conducted pursuant to this Agreement shall be in accordance with the Florida Rules of
Civil Procedure and usual and customary procedures required by the circuit court of
Monroe County.
(a) Venue. In the event that any cause of action or administrative proceeding is
instituted for the enforcement or interpretation of this Agreement, the County and
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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 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 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 discretion terminate this Agreement without liability and may also, at its
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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.
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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 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 TDC shall be named as additional insured, except
workers compensation. The policies shall provide no less than 30 days notice of
cancellation, non -renewal or reduction of coverage.
Grantee shall provide, to the County, as satisfactory evidence of the required insurance,
including the insurance policy application and either:
• Original Certificate of Insurance
or
• Certified copy of the actual insurance policy
Or
• Certificate of Insurance e-mailed 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-Mariaa-Mon roeCounty-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
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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:
Monroe County Board of County Commissioners
CIO 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: Carolann Sharkey
5210 College Road
Key West, FL 33040
For Grantor: Lynda Stuart
Monroe County Tourist Development Council
1201 White Street, Suite 102
Key West, FL 33040
and
Susan Grimsley, 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, 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.
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
24. NON -RELIANCE BY NON-PARTIES. No person or entity shall be entitled to rely
upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any
third -party claim or entitlement to or benefit of any service or program contemplated
hereunder, and the County and the Grantee agree that neither the County nor the
Grantee or any agent, officer, or employee of either shall have the authority to inform,
counsel, or otherwise indicate that any particular individual or group of individuals, entity
or entities, have entitlements or benefits under this Agreement separate and apart,
inferior to, or superior to the community in general or for the purposes contemplated in
this Agreement.
25. ATTESTATIONS. Grantee agrees to execute such documents as the County may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and
a Drug -Free Workplace Statement.
26. 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.
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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)
Attest: Danny L. Kolhage, Clerk
De uty Clerk
(CORPORATE SEAL)
Attest:
By.
Secretary
Print Name
Date:
OR TWO WITNESSES
(1)
(1)
Print Name
Date:
Key West Botanical Garden Society
FY 2008 Capital Funding
Contract #: 394
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