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Item F16 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: NOVEMBER 19, 2008 Division: TDC Bulk Item: Yes X No - Department: Staff Contact PersonlPhone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Agreement with Schooner Western Union Preservation Society, Inc. covering the Schooner Western Union Maritime Museum Refit project in an amount not to exceed $405,000, DAC I, FY 2009 Capital Resources. ITEM BACKGROUND: TDC approved same at their meeting of September 23,2008. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/ AGREEMENT CHANGES: New Contract STAFF RECOMMENDATIONS: Approval TOTAL COST: $405,000 BUDGETED: Yes X No - COST TO COUNTY: $405,000 SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes -X- No SMOUNT PER MONTH_ Year-::- '~ C'J ~ 'z{ APPROVED BY: County Atty -X- !Purchasing ~ Risk Management DOCUMENT A TION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Schooner Western Union Contract #_ TDC#: 515 Preservation Society, Inc. Effective Date: 11/19/08 Expiration Date: 3/31/2010 Contract Purpose/Description: Approval of an Agreement with Schooner Western Union Preservation Society, Inc. covering the Schooner Western Union Maritime Museum Refit proiect in an amount not to exceed $405,000, DAC 1, FY 2009 Capital Resources. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext.) (Department/Stop #) for BOCC meeting on 11/19/08 Agenda Deadline 11/4/08 CONTRACT COSTS Total Dollar Value of Contract: $ 405,000 Current Year Portion: $ Budgeted? Yes[g] NoD Account Codes: 117-77040-530340- T-B-97-645-X-530340 / Grant: $ County Match: $ - - - - ----- - - - - - --- ADDITIONAL COSTS Estimated Ongoing Costs: $ ~yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Changes Date Out t;;/v; Needed ~ Division Director <~< ~ YesONoEl, < ~ Risk Man~menll (O;;IU{ Y esO No0' 'D1l < "=< O~.BjP Ch~g ~O'i YeSONor6~~ ~/ County Attorney ~"'t' Y esO NO~ C. Hall Comments: OMB Fonn Revised 2/27/01 MCP #2 Grant Award A~reement THIS AGREEMENT (Agreement) is entered into this day of , 2008 by and between MONROE COUNTY, a political subdivision of the state of Florida (County) and Schooner Western Union Preservation 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 Schooner Western Union Maritime Museum Refit 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 repair the property for use as museum open to the public; NOW, THEREFORE, in consideration of the mutual covenants and payments contained herein, the Grantee and the Grantor have entered into this Agreement on the terms and conditions as set forth below. 1. GRANT AGREEMENT PERIOD. This Agreement is for the period of November 19, 2008 through to March 31, 2010. 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: Seqments 1 , 2. 3 and 4. 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 March 31, 2010 and all invoices pertaining to this project shall be submitted to the Finance Department of Monroe County no later than March 31, 2010 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 Guy DeBoer, Coldwell Banker Real Estate, 1201 White Street, Key West, FL 33040 (Tel: 305-766-5832/E-mail: quydeboer@yahoo.com). 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. Schooner Western Union FY 2009 Funding Contract 10#: 515 I 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. d). All work completed must be in compliance with the Schooner Western Union Historic Vessel Conveyance Agreement signed on October 22, 2007 and attached hereto as Exhibit B. The Vessel shall remain within the corporate boundaries of the City of Key West for 60% of the year, and shall be made available for public viewing opportunities during that time. This provision shall survive the expiration of the term of this Agreement for a period of 10 years. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $405,000 (Four Hundred and Five Thousand Dollars) for materials and services used to repair 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% Schooner Western Union FY 2009 Funding Contract ID#: 515 2 (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 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 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 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) Schooner Western Union FY 2009 Funding Contract 10#: 515 3 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 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 paid. All payment requests must be submitted no later than the completion of project of March 31,2010. Invoices received after March 31,2010 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. c) Grantee must submit all documentation for final payment on or before the termination date of this grant of March 31, 2010. Invoices received after March 31, 2010 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 Schooner Western Union FY 2009 Funding Contract 10#: 515 4 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 development taxes may be used pursuant to Florida Statute with prior approval from TOC and SOCC. (ii) If at any time the Grantee (a) moves the vessel for more than the time limitations expressed in paragraph 2.d. below and in the attached Conveyance Agreement; (b) elects not to continue with or fails to complete the Schooner Western Union Maritime Museum Refit project as described in the application for grant award submitted to the TOC, or otherwise decides not to place into service for tourist-promotion-related purposes the facility acquired, constructed, or renovated with tourist development tax funding; (c) demolishes the project facility or divests itself of ownership or possession of the real property; or (d) 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 any and all funding given to Grantee pursuant to this Agreement. This provision shall survive the termination date of all other provisions of this contract for a period of ten years. Should the move, failure to complete, demolition, transfer of ownership, or change of use to a non-tourist-promotion related purpose occur after the facility has been used for tourist- related purpose occur after the facility has been used for tourist related purposes for at least three (3) years from the date of this Agreement, the amount of refund shall be pro- rated based on a useful life of ten (10) years. (iii) The Grantee is responsible for the implementation of adequate maintenance procedures to keep the real and personal property in good operating condition. (iv) The Grantee is responsible for any loss, damage, or theft of, and any loss, damage or injury caused by the use of, real or personal property or equipment purchased through funding under this Agreement. 4. RECORDS AND REPORTS. The Grantee shall keep such records as are necessary to document the performance of the Agreement and expenses as incurred, and give access to these records at the request of the TOC, the County, the State of Florida or authorized Schooner Western Union FY 2009 Funding Contract ID#: 515 5 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 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 Schooner Western Union FY 2009 Funding Contract 10#: 515 6 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. 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 Schooner Western Union FY 2009 Funding Contract 10#: 515 7 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 BOCCrrDC 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 Schooner Western Union FY 2009 Funding Contract ID#: 515 8 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 (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 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. 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. Schooner Western Union FY 2009 Funding Contract 10#: 515 9 12. TERMINATION. This Agreement shall terminate on March 31, 2010. 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 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 Schooner Western Union FY 2009 Funding Contract 10#: 515 10 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 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 Schooner Western Union FY 2009 Funding Contract 10#: 515 11 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. 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 Schooner Western Union FY 2009 Funding Contract 10#: 515 12 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-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-Maria@MonroeCounty-FL.Gov - The e-mail must state that this is a certificate for a TOC project and should be forwarded to Maxine Pacini at the TOC 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 TOC is the Certificate Holder and additional Insured for this contract. Insurance should be mailed to: Monroe County Board of County Commissioners C/O Risk Management P.O. Box 1026 Key West, FL 33041 Schooner Western Union FY 2009 Funding Contract 10#: 515 13 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: Guy DeBoer Coldwell Banker Real Estate 1201 White Street 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 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. 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. Schooner Western Union FY 2009 Funding Contract ID#: 515 14 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 BaCC 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. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Schooner Western Union FY 2009 Funding Contract 10#: 515 15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. (SEAL) Board of County Commissioners Attest: Danny L Kolhage, Clerk of Monroe County Deputy Clerk Mayor/Chairman (CORPORATE SEAL) Schooner Western Union Preservation Society, Inc. Attest By. 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Q) C/) ~ ~ ~ ~ _ 0 ~ ~ _ m ~ ~ X 2 w u o -----------------------------------------------------------~------------------- o o o Ll) - V') o U o - o I- - Q) (/) -0 E 0 o U-o 0- -0 Q) ~ ~ a os C'J - 0- o 0 Q) C'J >~ 000 _ c 0. 0)0) c .c o~ = U') -0 00 c 0.::>- ~ 0- U Q) .2 -S;c-O Q) 0- '7""l ~ .cV')v o U c c _ coo c ::> :.;= V') o ou.:::.L. :.;= IQ)O 'f'1 ~ ~ 9- ~ 00 0 00 c Q) :J:I= Q..:::.L. _ = -= c Q)U::>oo ~ 0 0 c c ~ D...-oIi1:i1: 0) . ... Q) (/) EXHIBIT B SCHOONER WESTERN UNION !!UTORIC VESSEL CONVEYANCE AGREEMENT THIS SCll00NER WESTERN UNION HISTORIC VESSEL CONVEY ANCE AGREEMENT ("Agreement") is entered into this 22nd day of October, 2007 (' 'Agreement Date"), between HISTORIC TOURS OF AMERICA, , INC. ("HT A")r1vhose principal business address is 201 Front Street, Suite 224, I I Key West, Flotda 303040 and whose FEIN is 59-2512154, and THE SCHOONER , WESTERN U11'f(ON PRESERVATION SOCIETY, INC. ("Foundation"), whose I I principal businl€,s address is P.O. Box 4379, Key West, Florida 33041 and whose I I FEIN is 20-59$g968. I I I. RECITALS A. Hll A is a Florida, for-profit corporation which, through various affiliates and +bsidiarieS, operates sightseeing tours, themed retail establishments, I and attraction~ Ithroughout the United States. i I B. I-frIA owns a 130-foot historic "tall ship schooner" Schooner Western I Union ("the Ve: ;sel"), free and clear of all liens and encumbrances. A copy of the I Vessel's most r~cently issued Certificate of Documentation and Certificate of Inspection are ~ ttached hereto as Composite Exhibit "A". C. Th~ Vessel has great historical significance to Key West and the State of Florida. The Vessel was constructed in Key West in approximately 1939 and was a workings ::hooner laying communication cable throughout the Caribbean. It was one of the last tall ships built in the State of Florida. D. Ft~)m approximately 1997 through 2006, HT A, through its wholly- I owned operatiIjl~~ subsidiary, Schooner Western Union, Inc. ("SWU'~), operated the V essel as a t01n st attraction. SWU sailed the Vessel approximately twice daily. During the sailii1lg experience, guests/passengers hoisted sails and partook in a I vintage histori~Hl tall ship sailing cruise. i r I E. On or about August 5,1997, by virtue of Resolution No. 97-301, the City of Key wje,t designated the Vessel as the Official Flagship of the City of Key [ I West. A copYrcfthat Resolution is attached hereto as Exhibit "B". i I i F. F~)llndation is a Florida-chartered not-for-profit corporation, whose I mission is to atlvance and protect historical aspects of the Florida Keys. Foundation has applied to the Internal Revenue Service ("IRS") for 501(c)(3) I status and is awaiting an IRS determination on that application. I G. FGundation specifically acknowledges that the Vessel is of historical significance to .he State of Florida, the Florida Keys, and Key West in particular. 2 H. Gi\en its historic vintage, maintenance costs for the Vessel are significant. Btkause they are "for-profit" entities, neither HT A nor SWU are able to secure and attain grant and public funding for maintenance of the Vesse!. 1. Gh'en the Vessel's historical significance to the State of Florida, the Florida Keys, cUld Key West in particular, and given the Foundation's mission to I restore, maint~ill and operate the Vessel in imparting the Vessel's history and I I education to alii who view and sail her, HT A desires to give the Vessel to the Foundation as !a gift under the conditions outlined in this Agreement. II. CONVEYANCE AGREEMENT I I A. HIT A agrees to donate to the Foundation, as a gift, and the Foundation ! I agrees to acce~l from HT A, as a gift, the Vessel, free and clear of all liens and other encumbrances, except as may be expressly outlined herein. The Foundation agrees to cooperate with HT A in any manner reasonably requested by HT A to maximize any :e~onomic and/or tax benefit to be realized by HT A as a result of I HTA's gift oftLe Vessel to the Foundation as contemplated herein. ! I . B. Th~ FoundatIOn expressly acknowledges that HTA makes no representationr Jr warranties whatsoever regarding the condition of the Vesse!. In I fact, upon infdr nation and belief, HT A believes that the Vessel needs significant 3 repair work in prder to be seaworthy (see Composite Exhibit "A"). Hence, the Foundation agj'~es to take the Vessel "AS IS - WHERE IS." C. Tlll~ Vessel is currently moored at the Historic Seaport pursuant to a quasi-Sub-Leasl; Agreement between SWU and the owners of the Schooner Wharf Bar. Upon infoJmation and belief, the owners of the Schooner Wharf Bar lease the , mooring area from the City of Key West, and, then sub-lease the mooring area to SWU. The Foundation acknowledges that the Foundation shall acquire mooring I ! ! space for the Vessel either where the Vessel is currently moored or elsewhere I I I within the City of Key West. I III. FOUNDATION COVENANTS A. FQ)lmdation expressly covenants and acknowledges that material I f provisions oftl:/(~ conveyance contemplated herein is the Foundation's agreement to: (Ii) at Foundation's sole cost and expense (including any grants, loans, or gifts acquired by the Foundation) take all reasonable and necessary steps to renovate the Vessel so that same is seaworthy and fully operational in every respect; f 4 I (2~ once the Foundation renders the Vessel seaworthy, operate the Vessel as a functioning vessel wi thin the waters of Key West; and q) permanently moor and operate the Vessel in Key West. I I B. Fblndation expressly covenants and warrants as follows: I I I , d) within 180 days from the Agreement Date, Foundation shall, at I I Foundation's sole cost and expense (including any grants, loans or gifts acquired by the Foundation), take all reasonable and necessary steps to renovate the Vessel, so that same is seaworthy and fully operational as a commercial passenger vessel in every respect; (f;) once the Foundation renders the Vessel seaworthy, the I I ! Foundation, at the Foundation's sole cost and expense, shall I I obtain and maintain all required licenses and appropriate approvals from any and all governmental entities to operate the Vessel as a commercial passenger vessel and the Foundation shall operate the Vessel as a functioning vessel in the waters of Key West in perpetuity; 5 (3) the Vessel will be permanently moored in Key West; (4) the Foundation shall, within ninety (90) days of the Agreement Date, obtain 50 I (c)(3) status; (5) the Vessel shall not sail more than six and one-half (6-1/2) miles outside the corporate boundaries of the City of Key West with the exception of sailings for Vessel maintenance; I (6i) all Vessel maintenance shall occur within the United States; I (7) no Vessel maintenance (including the initial Vessel renovation) 1 I i i shall take more than ninety (90) days, and, upon completion of , , I all such maintenance, the Vessel shall return directly to Key West. The above notwithstanding, said ninety (90) day limitation shall not apply for extraordinary repairs or unforeseen events and acts of God; 1 ($1) the Vessel shall be operated (i.e. for a minimum of275 days I each year excluding time the vessel is out of service of maintenance and repairs) primarily for public use (i.e. ticketed sales); 6 (90 the Vessel shall not be used for pleasure sails by the Foundation's officers or board of directors; (10) the Vessel shall return to berth each day and shall not be used for overnight charters; and (1l) at all times that Foundation, or any assignee of Foundation, owns or controls the Vessel, at least 2 out of the initial 9 member board) of the Foundation's (or any assignee entity's) board of directors shall be composed of HT A appointees. In the event that the board shall ever be expanded, then in that event HT A shall be awarded one board position for every 5 appointments (20% of all appointments). C. Inlt any time after the conveyance outlined herein, Foundation I I receives a bonb {ide offer from a potential transferee of the Vessel, or Foundation, I I I itself, makes a, ~'ona fide offer to a potential transferee of the Vessel ("Offer"), then I Foundation, w,~thin three (3) days of either the Foundation's receipt or making of I I the Offer, shal~ provide to HT A a photocopy of the Offer including, but not limited I to, all essential :erms related to the Offer (collectively, "Offer Package"). HT A (or its assigns) Sh2ull then have fifteen (15) days from HTA's receipt of the Offer Package in which to evaluate the Offer Package and, HT A (or its assigns) may 7 exercise the Ofbr in the stead of the Offer's initial transferee. During this fifteen , (15) day evalualion period, Foundation shall promptly respond to all reasonable inquiries from]- [T A (or its assigns) regarding the Vessel, the Offer Package, and I any other information within the purview of Foundation to assist HT A in evaluating the Offer. Within three (3) days after the expiration of the fifteen (15) I day evaluation! period, HTA (or its assigns) shall notify Foundation, in writing, as I I to whether HT~ (or its assigns) wishes to exercise its covenanted right of first I refusal hereunJi<:r. IfHTA (or its assigns) chooses not to exercise HTA's right of I first refusal (Olf, if HT A fails to respond within three (3) days after the expiration of ! the fifteen (15~ day evaluation period), then Foundation shall be free to convey the Vessel to the illi rial transferee pursuant to the terms of the Offer, and this i I covenanted right of first refusal will be of no further force and effect; however, all I I other covenanl$ outlined herein shall remain in full force and effect. I i D. Tl11~ parties specifically acknowledge and agree that the Foundation's I breach of any 1):' the covenants outlined in this Section III shall result in irreparable I harm to HT A, \phich harm cannot be remedied by money damages. Therefore, the Foundation exp'essly agrees that, if the Foundation breaches any of the above- , referenced cow~nants, HT A (or its assigns) shall be entitled to (in addition to any other remedies available at law or in equity) injunctive relief, mandatorily ! enjoining the froundation to perform the covenants as expressly agreed herein. 8 E. Ea ~h of these covenants, including HT A's right of first refusal outlined in Se~tion IIl(C), above, shall survive the closing and shall be covenants "running with the Vesse!." IV. CLOSING LOGISTICS A. Th~ closing shall take place within thirty (30) days of the date of this Agreement at a closing agent, time and place to be selected by HT A. HT A shall ! provide notice:!) the Foundation as to the closing time, date and place. B. Aim Vessel transfer costs associated with closing shall be borne by HT A, and all dther costs shall be borne by the Foundation. V. MISCELLANEOUS I I A. E*cept as provided in Article Il(A), above, each party is responsible fi . I " fr h' or Its own tax consequences ansmg om t IS Agreement. I , B. E4~,=H PARTY AGREES TO WAIVE A JURY TRIAL ON ANY DISPUTE ARJl~~ING UNDER THIS AGREEMENT AND EACH PARTY ! AGREES TO ~iA VE ANY DISPUTE HEARD BY THE COURT WITHOUT A JURY. , C. Except as specifically outlined herein, no party shall be deemed an agent, employ~e partner, etc. of the other party by virtue of this Agreement. 9 D. Fhr the purposes of interpreting any ambiguity arising under this Agreement, no party shall be considered the "drafter" of same. E. Inlhe event of any litigation resulting from this Agreement, the prevailing pa~ shall be entitled to the recovery of reasonable costs and attorneys' fees from the nen-prevailing party. F. AU parties acknowledge and agree that, notwithstanding any provision of maritime la'iV to the contrary, in the event of any dispute arising under this , , Agreement, th~ ;ole jurisdiction for any such dispute shall be in Monroe County, ! i Florida, and FIIJ ida law shall govern any such dispute. I , G. F~l.ndation specifically acknowledges that, unless expressly outlined in this Agreem~Jlt, HT A, SWU, or their agents, make no warranties whatsoever , I with regard to fie Vessel or any other portion of the transaction hereunder. Any and all negotia1:J.)ns, statements, or representations preceding this Agreement i I (whether oral qr written) shall be considered merged into this written Agreement. , I No change, alt~[ation, revision or amendment to this Agreement shall be effective , I unless reduced,!,) writing and signed by both parties. , I H. AU notices required hereunder shall be provided as follows: 10 To the FtJundation: The Schooner Western Union Preservation I' Society, Inc. c/o Theo Glorie P.O. Box 4379 Key West, Florida 33041 To HTA: Historic Tours of America, Inc. c/o Ed Swift, III, President 201 Front Street, Suite 224 Key West, Florida 33040 I i I Either P~lty may change the designation outlined in this provision by ! providing written notice to the other party. I I ! I If HT A ~Jc:comes a non-viable entity and fails to provide the notice of change as contemplatelcl herein, all notices hereunder due to HT A shall be sent to: I Historic iF lorida Keys Foundation, Inc. 5 10 Greb le Street I Key We~1, Florida 33040 ! I I VI. ATTORNEY REPRESENTATION i I i The Fourdation acknowledges, covenants, agrees and represents that the Foundation ha$ I~onsulted independent legal counsel, and there have been no legal representations made by Edwin A. Scales, III upon which the Foundation has relied. Each p4lJrty acknowledges, covenants, agrees, understands, and represents that Edwin A. S.~ales, III, has acted as counsel solely for HT A, and that no party to 11 this Agreemem other than HT A, has relied in any way, shape or form on any representation t y Edwin A. Scales, III, in this transaction, or any related transaction. 1-rIA expressly acknowledges that Edwin A. Scales, III has provided no tax advice whatsoever regarding the conveyance contemplated herein. HTA further acknowledges and represents that HT A has sought independent tax advice regarding the proposed transaction. XI. SIGNATURES HISTORIC TOURS OF AMERICA, INC. ~= ~ . . . .:~-::N-~ ~ Print Name: E "-J:N U ( Scv,.ff m; ......... i Title: c> f e s ~d e.v +- I Date: If:iz"l. ( Z 06 -? THE SCHOONER WESTERN PRESERVATION SOCIETY, INC. i BY' Prin Title: Date: I 12 EXHIBIT A .. DeraIlment of Homeland Security United States Coast Guard Certificate of Inspection Certification Date: WESTERN CNION Page 2 of2 03Jul2008 .' TOPSAIL AND JIB TOPSAIL FROM THE FULL SAIL CONDITION. WATCH PATROL SERVICE TO BE PROVIDED BETWEEN THE HOURS OF 10:00 PM Am) 6:00 AM WHEN PASSENGERS ARE ON BO"~. THE MINIMUM NUMBER OF CHILD-SIZE LIFE PRESERVERS REQUIRED IS NINE (9; . ADDITIONAL CHILD- SIZE LIFE PRESERVERS SHALL BE PROVIDED AS NEEDED FOR THE VESSEL TO Hl::E AN APPROVED LIFE PRESERVER SUITABLE FOR EACH CHILD ON BOARD. ---Hull Exams--- Exam Type Next Exam Last Exam Pr i or E:xam Drydock 30Apr2010 04Apr2008 29Nov2CJ4 Wood Hull Fastener 3 OApr2 013 04Apr2008 Wood Keel Bolt 29Nov2009 29Nov2004 i II II 11- - -Lifesaving Equipment--- i Number Persons Required Total Equipment for 83 Life Preservers (Adult) :33 Lifeboats (Total) 0 0 Life Preservers (Child) 9 Lifeboats (Pert) * 0 0 Ring Buoys(Total) J Lifeboats (Starbd)* 0 0 With Lights* 1 Motor Lifeboats* 0 0 With Line Attached* 1 Lifeboats W/Radio* 0 0 Other* 1 Rescue Boats/Platforms 0 0 Immersion Suits 0 Inflatable Rafts 2 40 Portable Lifeboat Radios l) Life Floats/Buoyant App 1 8 Equipped with EPIRB? ~~es (* included in totals) ---Fire Fighting Equipment--- Number of Fireman Outfits/ 0 Number of Fire Pumps/ 3 *Hose information* Qty Diameter Length 2 1.5 Other *Fixed Extinguishing Systems* Capacity Agent Space Protect,~d 79 Halocarbon (Formerly: FM 200 I FE241) Engineroom *Fire Extinguishers - Hand portable and semi-portable* Qty Class Type 1 B-1 5 B-II *"'*END**'" .. D{")lf pt H,'nlt')n . I ~CiJ. CC.x.41 iilrv 4-_'\IOl'lin11 ''''.ffi''J.<, ;r(,,-,,t:"" L-enITIC; lion Ualtl. v.,) .JUt 4VVO United States of America Ex irati:n Date: 03 Jul 2013 Department of Homeland Security IMO Nurber: United States Coast Guard Certificate of Inspec'tion - VeSSel Name Off'c:aJ Numoer CaW S,9" SefV!ce WESTERN UNION 238443 WCZ6537 Passenger (Inspected) I -- Ha'1lr19 Port Hull Matenal Horsepower PropulsIOn KEY WEST Wood 220 Auxiliary Sail FL -- taee Burlt Oeltvery Date Date Keel Lald Gross T 01'15 Net T on'S :YNT Length KEY WEST FL, UNITED STATES 15Dec1939 R-91 R-72 R-86.8 I. I. I. -- Owner OD~ator THE SCHOONER WESTERN UNION THE SCHOONER WESTERN UNION PRI:SERVATION PRESERVATION SOCIETY INC SOCIETY INC 1201 WHITE ST SUITE 101 1201 WHITE ST SUITE 101 KEY WEST, FL 33040 KEY WEST, FL 33040 UNITED STATES UNITED STATES -- This vessel must be manned with the following licensed and unlicensed personnel. Inclucl~d in which there must be o certified Iifeboatmen o certified tankermen. 0 HSC tunA ratino. and 0 GMDSS Onarator&. 1 Master o Master & 1 st Class pilot o Radio Officer(s) o Chief Ergineer QMED/Ratlng o Chief Mate Mate & 1 st Class Pilot o Able Seamen/ROANW o 1st AsH Engr/2nd Engr. o Oilers I o 2nd MatelOICNW Lie. Mate/OICNW o Ordinary Seamen o 2nd As; Engr/3rd Engr. 1 AUX SL 3rd Mate/OICNW 1 st Class Pilot 4 Deckhands 3rd Ass! ::ngr Lie. Eng . -- In addition, this vessel may carry 27 passengers, 0 other persons in crew, 0 persons in additi)n to crew, and no others. Total oersons allowed: 33 -- Route Permitted and Conditions of Operation: ---Lake., Bays, and Sound. plus Limited Coastwise--- ATLANTIC OCEAN AND GULF OF MEXICO BETWEEN CAESAR CREEK, KEY WEST ANDSVERGLADES CITY (LOPEZ RIVER) , FLORIDA, NOT MORE THAN TWENTY (20) MILES FROM A HARBOR OF SAF8 REFUGE, CARRYING NOT MORE THAN THIRTY-THREE (33) TOTAL PERSONS. IF THE VESSEL IS AWAY FROM THE DOCK, OR PASSENGERS ARE ON BOARD OR H~,."E ACCESS TO THE VESSEL, FOR A PERIOD EXCEEDING 12 HOURS IN ANY 24 HOUR PERIOD, AN AL1'8RNATE CREW SHALL BE PROVIDED. WHEN OPERATING DURING DAYLIGHT HOURS ONLY, THE VESSEL MAY CARRY NOT "lORE THAN SEVENTY SEVEN (77) PASSENGERS, PROVIDED THAT THE APPROVED SAIL PLAN IS REDUCED TO E:XCLUDE THE MAIN ***SEE NEXT PAGE FOR ADDITIONAL CERTIFICATE INFORMATION**'" ; With this Inspection for Certifcation having been completed at Key West, FL, the Officer in Chal~Je. Marine Inspection. Key West, Florida certified the vessel, in all respects, is in conformity 'Nith the appli&able vessellnspec!jon laws and the rules and reoulations orescribed thereunder. - _. Annual/Periodic/Quarterly Reinspections This cert~t~)s8ue~ by: ) . Date Zone AJP/Q SiQnature ,,~.::~/ .... ~'< '.C' . . . ., - - - - - M. L. HERRING, LCDR. l,lSCO-2yDirection - - - - Ufflcer in '";r1arge. ~.'ar;ni; InSl <f {lIOn - - - - Key West, Flonda -. - - - - 1(;;:pectjOO Z0~f~ .- Oepf 01 Home SIl'C uSCG. CG.841 iRe... 4'2000~'12} ')l"lS N., 1115.C~ 17 .'~";SCh"O: '7~V'~ ". ,.,~~~,':~\~~~~{l~\;tF: ,.<" ".,,\'1.~',.. . ""'~'~"lID . ~ 5 V C H' ~" :," ,,' ," ',', ;, ' , ,',. ;i '.:.' ';, OMB QV ~ \ l ': , " "tIN"lfED STA:fES OF AMERlcA~lii-o';'i'd' "',': ~ - ~ , t . , " '" ' ' . " t,,~ DEP ARTMENT OF HOMELAND S~CURITY ,f UNITED STATES COAST GUARD '~ NA TIONAL VESSEL DOCUMENT A TION CENTER Ii CERTIFICATE OF DOCUMENTATION ~ VESSEL NAME OFFICIAl NUMBER IMO OR OTHER NUMBER ~~ ,~ WESTERN UNION 238443 ~.~ rr HAlLING PORT HULL MATERIAl .'{.o( t'i WOOD YES ,'-* NET TONNAGE LENGTH DEPTH :1 ,~ 72 NRT 86,8 23.4 6.7 j <; ~ '(;<; ~" OPERA T/ONAL ENDORSEMENTS ~ COASTWISE ,~ ),,= REGISTRY ..~ RECREATION ~ "~ :~ t:(~ MANAGING OWNER ~ ~~ HISTORIC TOURS OF AMERICA INC 201 FRONT STREET SUITE 224 KEY WEST. Fl 33040 ~ :..i" ~~ ~,~ ...:~ ':'~ ,,~~ ~~ .~j t.<~ "'i,; ~.... vtJ:ti;. ;~ "m THIS CERTIFICATE exPIRES ;\''; OE;CEM~ER 31, 2007 : DIRECTOR, NATIONAL VESSElL C>OCUMENTATIQN CENTER ~ W~ 'i,.'i':~ i~ , .\, PREVIOUS EDITIO:-; OBSOLETE. THIS CFRTI FIr A TF \fA Y \:()T nF .\1 rr R i' f)