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FY2004 01/21/2004 DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: February 3, 2004 TO: Lynda Stuart, Office Manager Tourist Development Council ATTN: FROM: Maxine Pacini Administrative Assistant Pamela G. Hanc~ Deputy Clerk U At the January 21, 2004, Board of County Commissioner's meeting the Board granted approval and authorized execution of the following: Grant In Aid Award Agreement between Monroe County and the Florida Keys History of Diving Museum, Inc. for a diving museum development project in an amount not to exceed $293,162 - DAC IV, FY 2004 Capital Project Resources. v'Grant In Aid Award Agreement between Monroe County and the National Marine Sanctuary Foundation for the Dr. Nancy Foster Florida Keys Environmental Center - Florida Keys Ecosystem Exhibit project in an amount not to exceed $222,500 - DAC I, FY 2004 Capital Project Resources. Enclosed are two duplicate originals of each of the above-mentioned for your handling. Should you have any questions please do not hesitate to contact tbis office. cc: County Administrator w/o documents County Attorney Finance File ./ Grant In Aid Award Aareement This AGREEMENT dated the 2/~y of -.JA--N 2004, is entered into by and between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, hereinafter "County" or "GRANTOR," on behalf of the TOURIST DEVELOPMENT COUNCIL, hereinafter "TDC" and National Marine Sanctuary Foundation, a Michigan not-for-profit corporation headquartered in Maryland and authorized to do business in the State of Florida, hereinafter "Grantee". WHEREAS, the third penny of Tourist Development Tax may be used to acquire, construct, extend, enlarge, remodel, repair or improve, convention centers, sports stadiums, sports arenas, coliseums, auditoriums, fishing piers, museums, zoological parks, nature centers and beaches which are publicly owned and operated or owned and operated by not-for-profit corporations, and WHEREAS, Grantee has applied for Grant in Aid funding for the Dr. Nancy Foster Florida Keys Environmental Center - Florida Keys Ecosystem Exhibit project to extend, remodel and improve the Florida Keys Ecosystem Exhibit, hereinafter "the Property"; 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 extend, remodel and improve the property for use as a museum/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 January 21, 2004 through April 30, 2005. 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. All work for which grant funds are to be expended must be completed by the stated termination date. 2. SCOPE OF AGREEMENT. The Grantee shall provide materials and services to include design, production, and project management as are required to produce and install the exhibit items for the Visitor Center which would include Center Sign; Entrance Wall Art; Habitat Signage; Outdoor Welcome Signage; Lobby Banners; map/model of center; Information Area Brochures; Self-help; counter and graphics. This project shall be completed and invoices submitted to the County Finance Department no later than April 30, 2005. The Grant in Aid funds must be expensed in the fiscal year ending September 30, 2005. No funds will be available for use for this project agreement after September 30,2005. 1 The Grantee shall designate a project manager if no licensed architect, engineer or general contractor is involved in the project. If the project is performed by County or City personnel, the project manager shall be the Engineer, Building Official or Construction Manager of that local government agency. This designation must be made and notice pursuant to paragraph 20 provided to TDC/County prior to commencement of work covered by this agreement. Documentation of said notice shall be submitted in the first payment application. Should any signage be erected acknowledging the development of the project, said signage shall acknowledge the Tourist Development Council of Monroe County. If the amount of award exceeds $25,000, the Grantee agrees to dedicate the project property for a period of ten years, absent any acts not in control of the Grantee such as hurricane or terrorist damage, to the public purpose for which the funds are hereunder to be paid by County. If, project does not encompass structural improvements to real property and for any reason the project property ceases such public purpose use before the expiration of the ten years, the personalty (property other than realty) acquired under this agreement shall be delivered to the County or a not-for-profit organization which shall use the items for purposes which are related to the promotion of tourism in Monroe County. 3. AMOUNT OF AGREEMENT AND PAYMENT. The Grantor shall provide an amount not to exceed $222,500 for materials and services used to extend, remodel and improve the property. The Board of County Commissioners and the Tourist Development Council assume no liability to fund this agreement for an amount in excess of this award. Monroe County's performance and obligation to pay under this agreement is contingent upon an annual appropriation by the BOCC. a) Payment for expenditures permissible by law and County policies shall be made through reimbursement to Grantee upon presentation of Application for Payment Summary- AlA Document G702, invoices, canceled checks and other documentation necessary to support a claim for reimbursement. Included in said documentation shall be proof that the Grantee has received and applied to the property matching funds equivalent to or greater than the amount invoiced to the Grantor. 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 if applicable. Grantor shall retain 10% of any payment on work in progress until the Grantee has provided a Final Release of Lien for each vendor/Contractor for whom payment is requested. Final payment will not be made until the 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 Final Release of Lien Affidavit and Partial Release of Lien 2 b) Matching funds in an amount no less than the funds provided under this agreement are required to be applied to the project. Application of matching funds requires actual payment of the matching funds. Mere obligation through execution of a contract or approval of a budget item to be paid from matching funds will not suffice. In order for funds to be deemed matching, they shall have been expended for the services and materials required for the specific project described in the Scope of Services paragraph. Any funds applied to any use on the real property other than the project shall not be used as matching funds required under this agreement. In order to be considered matching funds for the project funded by grant under this agreement, the matching funds must be applied to the project during the term of this agreement. c) Oocumentation shall be submitted to the TOC 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 TOC Administrative Office. All submissions shall identify the items included in the schedule of values attached hereto and incorporated herein as Exhibit A which are sought to be reimbursed and shall indicate the percentage of completion of the overall project as of the submission. This document should be signed by the project architect, engineer, general contractor or project manager. Photographs showing progress on project shall be included in any payment request. c) Funding granted under this Grant in Aid Agreement must be expended by the County no later than September 30, 2005. Any amount of the grant funds not expended by County by that date shall no longer be available to Grantee, unless prior to April 30, 2005, an amendment extending this agreement has been approved in writing and executed by both parties. 4. REPORTS. The Grantee shall provide financial reports in summary of activity on forms provided or approved by the TOC, and quarterly narrative reports of activity under the approved work plan. The Grantee shall keep such records as are necessary to document the performance of the agreement and expenses as incurred, and give access to these records at the request of the TOC, the County, the State of Florida or authorized agents and representatives of said government bodies. It is the responsibility of the Grantee to maintain appropriate records to insure a proper accounting of all funds and expenditures. The Grantee understands that it shall be responsible for repayment of any and all reasonable and uncured 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 and which are not cured within a reasonable period of time. 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 3 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. 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. 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. 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 they will not discriminate against any employees or applicants for employment or against persons for any other benefit or service under this agreement because of their race, color, 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 4 limited to fees and expenses arising from any factual investigation, discovery or preparation for litigation), and the payment of any and all of the foregoing or any demands, settlements or judgments (collectively claims) arising directly or indirectly from any negligence or criminal conduct on the part of Contractor in the performance of the terms of this agreement. The Contractor shall immediately give notice to the County of any suit, claim or action made against the Contractor that is related to the activity under this agreement, and will cooperate with the County in the investigation arising as a result of any suit, action or claim related this agreement. d) Insurance. Contractor agrees that it maintains in force at its own expense a liability insurance policy which will insure and indemnify the Contractor and the County from any suits, claims or actions brought by any person or persons and from all costs and expenses of litigation brought against the Contractor for such injuries to persons or damage to property occurring during the agreement or thereafter that results from performance by Contractor of the obligations set forth in this agreement. At all times during the term of this agreement and for one year after acceptance of the project, Contractor shall maintain on file with the County a certificate of the insurance of the carriers showing that the aforesaid insurance policy is in effect. The following coverage's shall be provided: 1. Workers Compensation insurance as required by Florida Statutes. 2. Commercial General Liability Insurance with minimum limits of $500,000 per occurrence for bodily injury, personal injury and property damage. 3. Comprehensive Auto Liability Insurance with minimum limits of $300,000 combined single limit per occurrence. The Contractor, the County and the TOC shall be named as additional insured, exempt workers compensation. 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. All insurance certificates should be mailed directly to: Monroe County Board of County Commissioners C/O Risk Management 1100 Simonton Street Room 2-277 Key West, FL 33040 Re-imbursement shall not move forward until the above insurance certificates have been received and approved by the County Risk Management Department. 5 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. 9. HOLD HARMLESS/INDEMNIFICATION. The Grantee hereby agrees to indemnify and hold harmless the BOCCrrDC 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 arising directly or indirectly from the negligence of Grantee in the performance of services 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. 10. ANTI-DISCRIMINATION. The Grantee agrees that they will not discriminate against any of their employees or applicants for employment or against persons for any benefit or service 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. 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 April 30, 2005. 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. If the Agreement does not receive an approved extension beyond the grant agreement period, as defined in-paragraph 1, the grant in aid funds will expire on the fiscal year ending date of September 30, 2005. 13. TERMINATION FOR BREACH. The Grantor may immediately terminate this agreement for any breach of the terms contained herein which are not cured within ten days of notice by Grantor or its designated agent of said breach. Such termination shall 6 take place immediately upon receipt of written notice of said termination. Grantee shall be given notice of any breach by Grantor or its designated agent and failure of Grantee to cure such breach to the reasonable satisfaction of Grantor within 10 days of its receipt of notice shall be a basis for immediate 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 by is a breach of agreement, for which the Grantor may terminate this agreement upon giving written notification of termination. 14. ENTIRE AGREEMENT. This agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements with respect to such subject matter between the Grantee and the Grantor. 15. CONSENT TO JURISDICTION. This agreement, its performance, and all disputes arising hereunder, shall be governed by the laws of the State of Florida, and both parties agree that the proper venue for any actions shall be in Monroe County. 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. 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. 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. 7 19. LICENSING AND PERMITS: Grantee warrants that it or any contractor it shall hire 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 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 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. At all times during the term of this agreement and for one year after acceptance of the project, Grantee shall maintain on file with the Grantor a certificate of insurance showing that the aforesaid insurance coverage's are in effect. All insurance certificates should be mailed directly to: Monroe County Board of County Commissioners C/O Risk Management 1100 Simonton Street Room 2-277 Key West, FL 33040 Re-imbursement shall not move forward until the above insurance certificates have been received and approved by the County Risk Management Department. 21. NOTICE. Any written notice to be given to either party under this agreement or related hereto shall be addressed and delivered as follows: 8 For Grantee: Lori Arguelles 8601 Georgia Avenue Silver Spring, MD 20910 For Grantor: Lynda Stuart Monroe County Tourist Development Council 1201 White Street, Suite 102 Key West, FL 33040 and Suzanne Hutton, Asst. County Attorney P.O. Box 1026 Key West, FL 33041-1026 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first above written. (SEAL) ATlEST:DANNYL.KOLHAGE,CLERK BOARD OF COlNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BG-~~ /Deputy Clerk By: ~ (~ Mayor/Chciman (SEAL) National Marine Sanctuary Foundation BY:~ ~L~ reslden 6i7t~c.u.;;I,'./c~ .ra..dt:Jr 3. o Co) -;r :P- ;c,,~?; 0,...... m:;x-< (")n' 0_:"'_ C::o-~' :;z:. C> -tGC :< :--; ~~.. ...,., r - .'~-, 'r-:Jo 9 f'o-.) .1"'1 c=::> c::::> r ..z:- -" fT1 1"""1 0 CD I -" c..> 0 ;0 -0 :::0 ::t: ('1 c...> (; ..~~~) U1 .",," ...:> I r r [ I C f8.'...'.t,'.. L",! I I ~ EXHIBIT A PART V: PROJECT BUDGET AND TIMETABLE - ALL PROJECTS 1. Cost Estimates: List all major work items and the estimated costs of each. If the project is phased, segregate clearly those costs for the phase to be assisted by the TOC funds requested.. All phases and total estimated cost of the entire project must be listed here. The exhibit budget is attached indicating Phase I and Phase II components and contract dates for each. Funds requested are indicated in bold. Total cost of phase/project for which funds are requested: (not to exceed 50% of the total project cost: a)Phase ..$767.500 b) Project $2.300.000 Percentage of TOC funds requested of Total Budget: (not to exceed 50% of the total project cost) a) Phase 29% b) Project 9% 2. Confirmation that signed, sealed bid process was utilized for acquiring architectural services, or that project does not require architectural services, Guidry/Beazley has performed its work through an Indefinite Quantity Contract with the National Oceanic and Atmospheric Administration (NOAA). ..." , "'" 3. Matching Funds. List the sources and amounts of confirmed matching funds. (For items involving personnel, include the number of hours to be spent on the project activities and their per-hour value). These funds must not be expended before execution of a Capital Project Agreement. Prior donated services or expenditures are not acceptable as match for grant funds. No more than fifty (50%) percent of matching funds or twenty-five (25%) percent of the total project shall be in-kind services. a) Hard-dollar National Fish and Wildlife Foundation - $245.000. Deparbnent of Interior/National Park Service - $250.000 and Sanctuary Friends of the Florida Keys - $50.000 b) In-Kind (50%) limit: None Total confirmed matching Hard-dollar funds: ----'545.000 --.JO Total confirmed matching In-kind funds: This amount should equal or exceed TOC Funds requested. Page 1 of 3 23 [ . ( [ ( PART V Question 1: Project Budget -', :' .:....,-,~ l..-.- Foew lIIIdII K.,. EnvInnnenIIII C8nbr ~~e.ttm8t. I :.H.2008 Ph..... IT {MUc.1 -rm>:CAV (Av .HardWare . ProductiOD ~ E '.1 . - . . . -I - ") IwWUI . . - j . . - iJIOOI . - . . - iJIUOl . . - 1 JJOIII . . ] iJIUOl . - - .'':.~ .1 - - . -I . - - ofl 30...1' . - - . . oJ A- I .I I :: ....- rool - - 7.5111 . - ,~ 3 lOGl - .. . ~ 2OJIOOT 10.0001 2_ . I=- . . .' - - - :" - - 5 :" 13.000 - 30.0001 - - - 'lICI\ IVVl - . I ~veRaiJs - , - - - - - - - ' - - 1. - - ve VidI!loII 10011001 . - -r 30.0001 .y- - :HJ.OOOl - -I -'U.UlA.l - - - 25.0001 '. - - - - - - - - - - - - - - - $400,000 - 2SO - - - l_~~ 15.000 l~. - 30..000 - - - - - fiI - 5.000 - - - l). , - - .: 6.000 ~ ~ - - - . - - ~=I B - - - - . . 20: - - 7J - - - - :RJ19..500 s~ - 165.000 - ~ - Total : ~ '1:1 f!AI\I\ NV\- , - November. 2004 AullllAt. 2004 AuJEDlt. 2004 Novomber, 2004 -. 2.004 -23- Page 2 of 3 r, f f f f I C E I ! ~ L D r I , I Proiected in-kind services and qoods shall be allocated the followinq values. subiect to neqotiation with TOC/County. List here all such anticipated values: none 4. Outline of expansion opportunity for acquiring further match grants. The project is planned as a public-private partnership. Public funds have been secured to build the facility and pay for a limited number of exhibits. Funds to cover the remaining exhibit costs will be sought from private sources including corporations. foundations and individuals. A three- pronged committee structure to secure national. state and local funds has been created. An honorary committee has already been established to help in the fund raising efforts. This committee Is being chaired by Congresswoman Ileana Ros-Lehtinen. Additionally, two local co-chairs Bob Holston and Cece Roycraft have agreed to take the lead in efforts to secure funds. A number of special events will be held to help raise awareness about the project and funds. A wide-range of recognition opportunities have been developed Including namina opportunities for individual exhibits and the multi-media theater. 24 Page 3 of 3 6 sanCfUCj ~\'0 IJ.> ~ro ^'o ~ /~ ~ ~ 0- .2 . ~ ~ -. ro~" 0 Z '- ~ :J ~ RECEIVED DEe 2 9 2003 ..- December 22,2003 [), D. Ms. Maxine Puccini Monroe County Tourist Development Council PO Box 866 Key West, FL 33041-0866 Board of Trustees Dear Ms. Puccini, r\1 L)j IJ Care,] Per your request, I have signed and returned five original copies of the agreement between the National Marine Sanctuary Foundation and the Monroe County Tourist Development Council for elements of the visitor facility at the Dr. Nancy Foster Florida Keys Environmental Center. In addition, I have enclosed a copy of both our bylaws and my employment agreement with the National Marine Sanctuary Foundation. As noted on page 8 of our bylaws and page 2 of my employment agreement, signature authority on NMSF contracts is delegated to me as Executive Director. Pa1rlCla I hope this information suffices as evidence that my signature can be accepted in lieu of our president, who is based in Michigan. Please let me know if additional information is required. Sincerely, ~ /;J. / W ~~es ~... ~7 Executive Director 8601 Georgia Avenue. Suite 201 . Silver Spring, MD 20910 (t) 301.608.3040 · (f) 301.608.3044 · www.NMSFocean.org EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into effective as of the 1st day of June, 2002, by and between the National Marine Sanctuary Foundation, a nonprofit corporation located at 1320 Old Chain Bridge Road, Suite 330, McLean, Virginia 22101 ("Corporation") and Lori Arguelles ("Employee"), residing at 1726 Park Rd. NW, Ground Floor, Washington DC 20010. RECITALS WHEREAS, the Corporation is in need of an executive director and a variety of specialized program services; and WHEREAS Employee is thoroughly familiar with the operations of Corporation and has the experience and expertise to perform executive director and specialized program services; and WHEREAS Corporation desires to provide and the Corporation desires to receive the program services of Employee provided for by this Agreement; NOW, THEREFORE, for and in consideration of the premises and the mutual covenants, agreements and undertakings of the parties hereinafter set forth, the parties do hereby agree as follows: 1. Scope of Services. Employee shall be hired by Corporation as an employee and shall devote her best efforts to providing the Corporation with full-time Executive Director services, including such of the following program services as may be requested: a. Subject to Board of Directors approval, assist in developing and implementing a public education and advocacy program designed to advance the Corporation's principles and purposes and increase public participation; b. Assist in drafting and editing various publications; c. Supervise, organize and help implement all aspects of the Corporation's budgetary and programmatic initiatives and conferences; d. Assist in policy development and implementation for, and provide oversight of, the Corporation's programs; e. Develop a comprehensive Corporation strategy for the future, formulate and propose potential new programs and policies, and make recommendations to 1 the Board of Directors regarding the foregoing; and f. Perform such other executive director services as the Corporation may from time to time agree. 2. periodic Reports. Subject to such procedures and format as the Board of Directors of the Corporation may provide, Employee shall periodically submit brief reports to the Board of Directors of the Corporation outlining the services rendered during the preceding period, the progress of the Corporation's program activities, and, to the extent appropriate, the intended services to be provided during the coming period. 3. Powers of Employee. In accordance with such procedures and limitations as the Corporation's Board of Directors may from time to time prescribe, Employee may consult with the Corporation's lawyers and accountants, enter into service contracts and temporary help agreements, negotiate and deliver documents and instruments executed by an authorized official of the Corporation, and take such other reasonable action as may be necessary to accomplish the foregoing services. 4. Term. This Agreement shall have be for a term of one year. Unless either party indicates otherwise in writing within 30 days prior to the end of the initial term, this Agreement shall automatically be renewed for additional one-year terms thereafter. Notwithstanding the foregoing, however, this Agreement shall be subject to termination by either party in accordance with paragraph 6 below. 5. Compensation. For services rendered pursuant to this Agreement, Corporation shall compensate Employee as follows: a. Monthly Executive Director Compensation: performance of all services pursuant to this Agreement, shall be paid $7,000 per month, payable every two weeks such other intervals as the parties shall agree. For the Employee or at b. Expenses. The Corporation shall also reimburse Employee for all reasonable and necessary out-of-pocket expenses incurred in performing the services under this Agreement. Employee shall present to the Corporation from time to time an itemized accounting of such expenses and receipts in any form required by the Corporation. Notwithstanding the foregoing, Employee may not incur total expenses of more than $4,000 per month during any month while this agreement is in force without the prior written consent of the Corporation's President or Chairman of the Board. c. Employee Benefits. Employee shall be entitled to three weeks of paid vacation each year; up to ten days of annual 2 sick leave; 10 holidays--to include New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the following day, Christmas Day and the following Day, and one floating holiday; and such health insurance as the Corporation may purchase, and such other employee benefits as the Corporation's board of directors may approve from time to time. The Board of Directors may change employee benefits at any time, depending upon the finances of the Corporation. d. Employee Status. The parties recognize that the relationship of the parties shall be that of an employer and an employee and that Employee shall follow the instructions of the Board of Directors and its officers. The Corporation may withhold from any compensation payable under this Agreement all federal, state, and local taxes as shall be required under any law. 6. Termination. a. Notice of Termination or Modification. Either party may request to terminate or modify this Agreement for any reason at any time upon 30 days advance written notice to the other party. In the event the other party does not agree with any proposed modifications, the Agreement shall be deemed terminated on the day a written rejection of the modification{s) is received by the other party. b. Disability or Death. In the event that the Employee shall be prevented from rendering services under this Agreement by reason of death or by reason of illness, disability, incapacity or injury for a period of 30 consecutive days during the term of this Agreement, then Corporation may immediately terminate this Agreement by providing written notice to Employee. c. Termination by Corporation "For Cause". The Corporation shall have the right to terminate this Agreement for cause if Employee (i) materially breaches her obligations and agreements hereunder, or (ii) commits and/or demonstrates gross neglect in the conduct of her duties hereunder. d. Termination by Employee "For Cause". Employee shall have the right to terminate this Agreement for cause in the event of any material breach by the Corporation of its obligations and agreements hereunder. e. Procedure for Termination for Cause. In order to terminate this Agreement for cause, and as a condition to exercising such right to terminate for cause, the Corporation or the Employee, as the case may be, shall be obligated to give the other party, at least 15 days' prior written notice of such intention to terminate, specifying in detail the grounds or reasons for such termination for cause. Following any such 3 notice of termination for cause, the party receiving such notice shall be permitted a reasonable opportunity, and the party giving such notice shall be obligated in good faith to permit the party receiving such notice, to endeavor during such 15-day notice period to cure such claimed cause to the reasonable satisfaction of the party desiring to terminate the Agreement. f. Effect of Termination. Upon termination of this Agreement, the Corporation shall be obligated to pay all salary and out-of-pocket expenses to Employee in accordance with the terms and provisions of this Agreement, accrued through the effective date of such termination. This Agreement shall thereafter remain in effect, however, with respect to any continuing obligations of the parties specifically provided for in this Agreement. 7. Notices. All notices required or permitted to be given under this Agreement shall be given by certified mail, return receipt requested or by overnight delivery service or hand delivery, to the parties at the parties' addresses noted above or to such other addresses as each party may designate in writing to the other parties. Employee shall also give notice to the President or Chairman of the Board of the Corporation at such person's last known home or business address. 8. Governina law. This Agreement shall be construed and enforced in accordance with the laws of the District of columbia. 9. Entire contract. This Agreement constitutes the entire understanding and agreement between the parties with regard to all matters herein. There are no other agreements, conditions or representations, oral or written, express or implied, with regard thereto. This Agreement may be amended only in writing, signed by all parties. 10. Non-waiver. A delay or failure by any party to exercise a right under this Agreement, or a partial or single exercise of that right, shall not constitute a waiver of that or any other right. 13. Arbitration. Any dispute, difference or controversy arising out of, in connection with, under or pursuant to this Agreement shall be determined by arbitration before a single arbitrator in the District of Columbia under the then existing rules of the American Arbitration Association, which determination shall be final, conclusive and binding upon the parties hereto, and judgment thereon may be entered by any court of competent jurisdiction. 14. Work for Hire: Employee understands and agrees that all work product produced by Employee during the term of this agreement and during any renewal term is a "work made for hire" 4 and that the Corporation has the sole intellectual property rights to such work product. 15. Confidentiality: Employee acknowledges that, during the course of employment, she will have access to confidential, proprietary information of the Corporation which is not publicly known and is valuable, special and unique to the Corporation, including but not limited to consumer lists, contracts, computer data, and general information about the Corporation's methods of operation (hereinafter the "Confidential Information"). Employee further acknowledge that the disclosure or unauthorized use of the Corporation's Confidential Information shall cause irreparable harm and loss which may not be adequately compensated for by money damages alone. Employee agrees to maintain confidentiality with respect to all Confidential Information that she receives in the course of your employment. Employee also agrees that upon the termination of this Agreement for any reason, she shall return to the Corporation all Confidential Information in her possession or control. Employee further agree that in the event of a breach or threatened breach of this Section IS, the Corporation shall be entitled to injunctive and/or other preliminary or equitable relief, in addition to any other remedies available at law. This Section 15 shall indefinitely survive the termination of this Agreement. 16. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the day, month, and year first written above. ::~~:.;:::z Pa omanowski President LORI ARGUELLES ~'-~/;t) t~'c/:;;~ 5 BYLA WS As Amended 9/20/02 OF NATIONAL MARINE SANCTUARY FOUNDATION ARTICLE I Purpose and Powers Subject to Article II of the Articles ofIncorporation, the specific and primary purposes for which the corporation is formed are to: (1) Increase national and international awareness and protection of and support the National Marine Sanctuary Program. (2) Raise revenue for the National Marine Sanctuary Program through grants, bequeaths, donations, and earnings from products and services. (3) Develop a constituency to support the National Marine Sanctuary Program. (4) Educate the public and decision makers about the value of sanctuaries, (5) Support sanctuary related education, outreach and research through the creation of actual and virtual visitor center experiences; (6) Participate in special projects related to the National Marine Sanctuary Program; (7) Support the activities of NOAA's Office of Exploration; (8) Exercise all of the general powers permitted to a Michigan Nonprofit Corporation under Michigan law, insofar as these powers are consistent with the Articles of Incorporation. ARTICLE II Non-Partisan Activities This corporation has been formed under the Michigan Nonprofit Corporation Act, for the beneficial purposes described above, and it shall be nonprofit and nonpartisan. The corporation shall not participate in or intervene in any political campaign on behalf of or in opposition to any candidate for public office including the publishing or distribution of statements. The Corporation shall not, except in an insubstantial degree, attempt to influence legislation or regulations or engage in activities or exercise any powers that are not in furtherance of the purpose described above. -1- ARTICLE III Offices of the Corporation Section 2.1 Principal Office. The principal office for the transaction of activities and business of the corporation (principal office) is located in Grand Blanc, Michigan. The Board of Trustees ("Board") may change the principal office from one location to another by resolution. Any change of location of the principal office shall be noted by the Secretary on these Bylaws opposite this Section, or this Section may be amended to state the new location. Section 2.2 Other Offices. The Board may at any time establish branch or subordinate offices at any place or places where the corporation is qualified to conduct activities. ARTICLE IV Board of Trustees Section 1. Election and Term of Office. The first board of trustees consists of those persons the incorporator designates in the Articles oflncorporation. Thereafter, trustees may be elected at any trustees= meeting and shall hold office for a specified term or until a successor is elected. The board may change the number of trustees. However, in no event shall the board consist ofless than one or more than twenty-five (25) trustees. Trustees must be adults and be willing to undertake the duties of Trustee, but need not be residents of the State of Michigan. Section 2. Independence From the Department of Commerce. This organization is legally and financially entirely independent of the Department of Commerce=s National Oceanic and Atmospheric Administration (NOAA), any division thereof, or any other government agency. The Director of the National Marine Sanctuary Program shall serve as an ex-officio member of the Board of Trustees. Section 3. Resignation and Removal. A trustee may resign by written notice to the President or corporation Secretary. The resignation shall be effective when the notice is received unless it specifies a later time for the resignation to become effective, and shall also constitute resignation from the Board of Trustees in the same terms. A majority of trustees then in office may remove a trustee with or without cause. In addition, any director who fails to be present (in person or by telephone or by designee) at four consecutive trustee meetings shall automatically be removed from office, unless a special exception is granted by the unanimous vote of the remaining directors. -2- Section 4. Vacancies. Trustees then in office may fill a vacancy or newly created position on the board by majority vote for a specified term or until a successor is elected. Section 5. New Trustees. The corporation Secretary shall provide each new trustee with current copies of the Articles of Incorporation, bylaws, and other pertinent information regarding the organization and operation of the corporation. Section 6. Powers. The board manages the corporation=s business and may exercise all the corporation=s powers, Section 7. Committees of Trustees. The board may appoint committees of trustees in its sole and absolute discretion. Any such committee, to the extent provided in the Board resolution, shall have all the authority of the Board, except that no committee, regardless of any Board resolution, may: (1) Take any final action on any matter that, under the Michigan Nonprofit Corporation Act, also requires approval of members or approval of the Board of Trustees; (2) Fill vacancies on the Board or any committee that has the authority of the Board; (3) Fix compensation for Trustees for serving on the Board or on any committee; (4) Amend or repeal Bylaws or adopt new Bylaws; (5) Amend or repeal any resolution of the Board that by its express terms is not so amendable or repealable; (6) Create any other committees of the Board or appoint the members of committees of the Board; (7) Expend corporate funds to support a nominee for Trustee after more people have been nominated for Trustee than can be elected; (8) Approve any contract or transaction to which the corporation is a party. Meetings and actions of the committees of the Board shall be governed by, held, and taken in accordance with the provisions of these Bylaws concerning meetings and the Board actions, except that the time for regular meetings of such committees and the calling of special meetings of such committees may be determined either by Board resolution, or if there is none, by resolution of the committee of the Board. Minutes of each meeting of any committee of the Board shall be kept and filed with the corporate records. The Board may adopt rules for the governance of any committee provided they are consistent with these Bylaws, or in absence of rules adopted by the Board, the committee may adopt such rules. Section 8. Restrictions on Interested Persons as Trustees. No more than 49-percent of the persons serving on the board may be interested persons. An "interested person" is (a) any person compensated by the corporation for services rendered to it within the previous 12 months, whether as a full-time or part-time employee, independent contractor or otherwise, excluding -3- reasonable compensation paid to a Trustee as a Trustee; and (b) any brother, sister, ancestor, descendant, spouse, brother-in-law, sister-in-law, son-in-law, daughter-in-law, mother-in-law, or father-in-law of such person. However, any violation of the provisions of this paragraph shall not affect the validity or enforceability of any transaction entered into by the corporation. Section 9. Advisory Committee(s). The Board may establish one or more Advisory Committees which may include members that are not Trustees, and will delegate to them such specific duties and powers as it sees fit (except that no committee can be authorized to exercise powers set forth in Section 8 above which are prohibited to a committee of the Board), provided that the affairs and activities of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board. ARTICLE V Trustees= Meeting Section 1. Regular Meetings. Regular board meetings will be held at the time and place fixed in advance by the board at a board meeting. No notice of such meetings to a trustee is necessary, if the trustee was present at the board meeting at the time that the time and place of the upcoming regular meeting was scheduled. Section 2. Special Meeting. The President may call a special meeting of the board at any time. Section 3. Notice of a Special Meeting. Notice of a special meeting of the board stating the time, place, and purposes of the meeting must be given to each trustee by one of the following methods: (a) by mailing a written notice of such meeting to such address as the trustee designates from time to time or, in the absence of designation, to the last known address of the trustee at least 5 days before the date set for such meeting; (b) by personally delivering a written notice of such meeting to the trustee at least 2 days in advance of such meeting; (c) by orally notifying the trustee of such meeting at least 2 days in advance, either personally or by telephone; or (d) in advance: by transmitting notice of such meeting to the trustee at least 2 days (i) by telecopier or telex to the trustee=s last known office or home or to such other location as the trustee designates from time to time, -4- or (ii) by electronic mail message to the trustee=s last known electronic mail address or to such other electronic mail address as the trustee designates from time to time, except that, if the transmitted notice is returned as undeliverable, a different permitted method of notification must be used. Section 4. Waiver of Notice of Meetings. A trustee=s attendance at or participation in a meeting waives any required notice to the trustee of the meeting, unless, at the beginning of the meeting or upon the trustee=s arrival, the trustee objects to the meeting or the transacting of business at the meeting and does not thereafter vote for or assent to any action taken at the meeting.. A trustee may waive in writing any right to notice before or after a meeting. Section s. Quorum. A majority of the trustees constitutes a quorum for the transaction of business. The act of a majority of those trustees present at any meeting at which there is a quorum is the act of the board, except as provided by law, the Articles oflncorporation, or these bylaws. Section 6. Vote Required. The board shall elect trustees by a plurality of votes cast. The board shall authorize all other board actions by a majority of votes cast. Section 7. Voting Rights. Except as provided for below, each trustee present in person at a board meeting is entitled to one vote. Trustees may not vote by proxy. Neither the Executive Director nor any ex-officio member of the Board of Trustees shall be entitled to the right to vote on any issue coming before the Board of Trustees. Section 8. Conduct of Meetings. Trustees= meetings shall generally follow accepted rules of parliamentary procedure. The presiding official has authority over matters of procedure and may adopt any other form of procedure suited to the business being conducted. Section 9. Action Without a Meeting. Unless otherwise provided by the Articles of Incorporation, any action may be taken without a meeting, prior notice, or vote if all trustees consent to the action in writing. Section 10. Electronic Participation in Meeting. A trustee or a member of a committee may participate in a meeting by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Such participation in a meeting constitutes presence in person at the meeting.. Section 11. Adjournment. A majority of the trustees present, whether or not a quorum is present, may adjourn any meeting to another time and place. -5- Section 12. Notice of Adjourned Meeting. If the original meeting is adjourned for more than 24 hours, notice of any adjournment to another time and place shall be given, before the time the adjourned meeting resumes, to the trustees who were not present at the time of the adjournment. Section 13. Compensation and Reimbursement. Trustees and members shall serve without compensation for their services but may receive such reasonable compensation for expenses as the board may determine by resolution to be just and reasonable reimbursement. ARTICLE VI Officers Section 1. Appointment. The board of trustees shall appoint a President, Secretary, and Treasurer and may elect from their number a Chairperson. The board may also appoint one or more Vice Presidents and other officers and agents that it deems necessary. The board need not appoint or elect an officer to an office that is already filled and whose term has not expired. The same person may hold two or more offices, but an officer may not execute, acknowledge, or verify an instrument in more than one capacity if the instrument is required by law, the Articles of Incorporation, or these bylaws to be executed, acknowledged, or verified by two or more officers. Section 2. Term, Removal, and Vacancies. An officer shall hold office for the term the board specifies upon appointment or until a successor is elected or appointed and qualified, or until the officer=s death, resignation, or removal. The board may remove an officer with or without cause. An officer may resign by written notice to the President or corporation Secretary. The resignation is effective upon its receipt by the corporation or at a later date specified in the notice. The resignation need not be accepted to be effective. Any resignation shall be without prejudice to the rights, if any, of the corporation under any contract to which officer is a party. Section 3. Chairperson of the Board. The Chairperson of the board, if one is elected, shall preside when present at all meetings of trustees. The Chairperson shall have such other duties and have such powers as the board specifies. Section 4. President. The President is the chief executive officer and, unless there is a Chairperson of the board and he or she is present, shall preside at all trustees= meetings. The President shall sign bonds, mortgages, and other contracts and agreements on the corporation=s behalf, except when the board specifies the same to be done by some other officer or agent. The President shall see that all orders and resolutions of the board are carried into effect and shall perfonn all other duties necessary or appropriate to the office of President.. -6- Section 5. Vice Presidents. The board may designate one or more Vice Presidents to perform the duties and exercise the authority of the President during the President=s absence or disability. Each Vice President shall perform other duties that the President assigns or the board prescribes. Section 6. Secretary. The Secretary shall cause to be recorded and maintained minutes of all meetings of the board and board committees. The Secretary shall cause to be given all notices required by law, these bylaws, or resolution of the board and shall perform other duties that the President assigns or the board prescribes. Section 7. Treasurer. Except as otherwise prescribed by the board, the Treasurer shall oversee the custody of the corporate funds and securities; cause to be kept in books belonging to the corporation a full and accurate account of all receipts, disbursements, and other financial transactions of the corporation; and deposit all funds to the credit of the corporation in such depositories as the board designates.. The Treasurer shall perform other duties that the President assigns or the board prescribes. (a) Books of Account. The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and accounts of the corporation=s properties and transactions. The Treasurer shall send or cause to be given to Trustees such financial statements and reports as are required to be given by law, by these Bylaws, or by the Board. The books of account shall be open to inspection by any Trustee at all reasonable times. (b) Deposit and Disbursement of Money and Valuables. The Treasurer shall disburse the corporation=s funds as the Board may order; shall render to the President and the Board, when requested, an account of all transactions as Treasurer and of the financial condition of the corporation; and shall have such other powers and perform such other duties as the Board or these Bylaws may prescribe. (c) Bond. If required by the Board, the Treasurer shall give the corporation a bond in the amount and with surety of sureties specified by the Board for faithful performance of the duties of the office and for restoration to the corporation of all its books, papers, vouchers, money, and other property of every kind in the possession of or under control of the Treasurer upon death, resignation, retirement, or removal from office. Section 8. Other Officers. The board may from time to time appoint other officers to perform duties and exercise authority that the President assigns or the board prescribes. -7- ARTICLE VII Executive Director The Board may employ an Executive Director who will, in time, employ or contract staff to perform work on behalf of the corporation. The terms and conditions of such employment and/or contracts shall be determined by the Board of Trustees. ARTICLE VIII Indemnification Section 1. Scope of Indemnity. The corporation shall indemnify its trustees and officers against expenses (including attorneys= fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by them in connection with any actions or suits brought or threatened against them, including actions by or in the right of the corporation, by reason of the fact that such person was serving as a trustee or officer, employee, nondirector volunteer, or agent of the corporation, to the fullest extent permitted by both the Michigan Nonprofit Corporation Act and Chapter 42 of the Internal Revenue Code. The corporation may indemnify persons who are not trustees or officers to the extent authorized by resolution of the board of trustees or by contractual agreement authorized by the board of trustees. A change in the Michigan Nonprofit Corporation Act, the Articles of Incorporation, or these bylaws that reduces the scope of indemnification shall not apply to any action or omission that occurs before the change. Section 2. Authorization of Indemnification. Unless ordered by a court or otherwise provided by law, the corporation shall indemnify a person only upon determination that the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the corporation=s best interests. Such determination shall be made (1) by majority vote of a quorum of the board consisting of trustees who were not parties to the action or suit, (2) if a quorum of disinterested trustees is not obtainable, by a majority vote of a committee of trustees who were not parties to the action and consisting of not less than two disinterested trustees, or (3) by independent legal counsel in a written opinion. Section 3. Insurance. The corporation may purchase and maintain insurance on behalf of any person who is or was a trustee, officer, employee, nondirector volunteer, or agent of this corporation or is or was serving at the corporation=s request in any other enterprise against any liability incurred in such capacity. -8- ARTICLE IX General Provisions Section 1. Checks. All corporation checks or demands for money and notes shall be signed by such persons as the board designates. Section 2. Fiscal Year. The corporation=s fiscal year ends December 31. ARTICLE X Dedication of Assets Section 1. Use of Funds. The corporation=s funds and property shall be used exclusively for the corporation=s purposes set forth in the Articles ofIncorporation. No part of the income or assets of the corporation shall inure to the benefit of any individual or trustee. Section 2. Dissolution and Liquidation. If the corporation=s purposes fail or if the corporation ceases to be approved as a tax-exempt organization under the federal Internal Revenue Code, and any such defect is not cured by appropriate amendment, or in the event of voluntary dissolution, then all of the corporation=s assets and accumulated income shall be distributed to such other organizations as the trustees (or in default of designation by the trustees, the Circuit Court for the County of Genesee, Michigan) designate as best accomplishing the purposes for which the corporation was formed.. An organization receiving such distribution must be qualified as tax-exempt under Section 501(c)(3) of the federal Internal Revenue Code or the corresponding provisions of any subsequent federal tax laws. The corporation shall be dissolved after all its property has been so distributed. ARTICLE XI Records and Reports Section 1. Maintenance of Corporate Records. The corporation shall keep: (1) adequate and correct books and records of account; (2) written minutes of the proceedings of meetings of the Board, and committees of the Board; and (3) true and accurate copies of the Articles of Incorporation and Bylaws of the corporation, with any amendments thereto; The corporation shall also maintain such other records as are designated by the Board or which are necessary for the conduct of corporation business. Section 2. Inspection of Records By Trustees and Officers. Every Trustee and officer of the corporation shall have the absolute right at any reasonable time to inspect the corporation=s books, records, documents of every kind, physical properties, and the records of -9- each of its subsidiaries. The inspection may be made in person or by the Trustee=s agent or attorney. The right inspection includes the right to make copies and extracts of documents. Section 3. Annual Report. The Board shall cause an annual report to be made available to the Trustees within 120 days after the end of the corporation=s fiscal year. That report shall contain the following information, in appropriate detail, for the fiscal year preceding it: (1) The assets and liabilities, including the trust funds, of the corporation as of the end of the fiscal year; (2) The principal changes in assets and liabilities, including trust funds; (3) The revenue or receipts of the corporation, both unrestricted and restricted to particular purposes; ( 4) The expenses or disbursements of the corporation for both general and restricted purposes; The annual report shall be accompanied by any report on it of independent accountants or, if there is no such report, by the certificate of an authorized officer of the corporation that such statements were prepared without audit from the corporation=s books and records. The requirement of an annual report shall not apply if the corporation receives less than $25,000 in gross receipts during the fiscal year, provided, however, that the information specified above for inclusion in an annual report must be made available annually to all Trustees. ARTICLE XII Construction and Definitions Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the Michigan Nonprofit Corporation Act shall govern the construction of these Bylaws. Without limiting the generality of the preceding sentence, the masculine gender includes the feminine and neuter, the singular includes the plural, the plural includes the singular, and the term "person" includes both legal entities and a natural person. ARTICLE XIII Standards of Conduct of Trustees A Trustee shall perform the duties of a Trustee, including duties as a member of any committee of the Board upon which the Trustee may serve, in good faith, in a manner such -10- Trustee believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. In performing the duties of a Trustee, a Trustee shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by: (1 ) One or more officers or employees of the corporation whom the Trustee believes to be reliable and competent in the matters presented; (2) Counsel, independent accountants or other persons as to matters which the Trustee believes to be within such person=s professional or expert confidence; or (3) A committee of the Board upon which the Trustee does not serve, as to matters within its designated authority, which committee the Trustee believes merit confidence, so long as, in any such case, the Trustee acts in good faith, after reasonable inquiry when the need therefore is indicated by the circumstances and without knowledge that would cause reliance to be unwarranted. No Trustee or officer shall be liable to the corporation or to any third party for any act or omission committed in good faith and in accordance with the standard conduct set forth above. Trustees and officers shall not be personally liable for debts and obligations of the corporation. ARTICLE XIV Amendments The board may amend or repeal these Bylaws by vote of a majority of trustees entitled to vote at any regular or special meeting. As Adopted September 6, 2000 As Amended: (1) October 25,2000 (2) September 20, 2002 557471-1 -11- JRN~9-2aeq 11:B3R FROM: TO: 1311152954364 1'''11 t.dilfotl MONROF. COUNTY, FLORIDA R~(llIt'!C1 Fur WlIin'r ur Jnsuran&:e Requi...m~nt~ It is rr.(IUf'lOtl'd th:u the msuranc.t' requirements. ;u sptcitied in Ill(' CUlIlIly's 5(;hcJuk: l,f IlIsurum:c I{tqllire~nts. lw wllived or moditied ,)1111'.., r..II..,winy cVlltracl. Contractor: i"lptiol1al Marille SalldUllr,Y FIIl.nthllill"_ .. Coatract ror: I.)r. N..c)' lioster Florida I\cy~ F.ll\oir'OIlIllCllh.1 {"t"IIIt"r-Jilllri,h. Kl')'S [CUS)stt!lal ~xhibit Address of (;onrrltttor: Hc.fll (:eorgia Av~nu,', Spill-lOa SlIvl'r Spri"., MD 2Q91U Phone: (J01) riOR-.,\040 S("(\Pf of Work: !'he N:tlional Ml1l'ille Swll~luillY FmlluJutilln .shllll l'rll\'illc rnlllcriltl.s Ilnd ~l'rvi('f'.s to include de!;ign. production, lUlll pllljlol'l 1Il1l1lltgenll:nl liS are l'eqUlred to produce and Install the exhibil i,cnu; lil' 11\0, Visi"H (\'IIWI' whidl wl\uld inc:lude l'enter Siln; cnlnllKc Willi Art; HllbitDt Si~.llnll.c; Outdlllll Welcolne ::'ignagc; I.obhy Hanners; IlHlpi/1lmkl ul' ~cJlI~'r; IFll'uflnltliun An.'lt BW4.:hurc'",; '\df-ht'lp: ('OllnTtr ilnd graphics. He.sun fut WlIIi'llt!r: _The Nlftiun:t' MArlD. S~nct"l~ Foundation has no clDplo~.:cs b"s~d ill Fluritlll. thus tile state's Workman'5 Compc.15srimt 1'1I1~ dOllnl "pply" Tit" NMSf dues h:tn :. pulity ha,rc1 Oil M.r)'lIInd slllint.'s. Tn lItllliliun, 'hI NMSF will en!ou re that all S.b-(t)lItra(tol'S cany Wf1,'lulUUl'~ '.'''ID'ltmslf'iun inslI rllnr" ill th("lr na.e 01' o.-lglD. PolfeK:!I Waiver will apply'...: WM . SIlt:nIUUre 01' (.'ontl'lldlll': ./ Approved ~ /\01 AI~I.runcJ RiJlk MAlINII'""'III: Date: .. LI.1 1/1 ('l)unty AdministrAtor Ap~lIl: 41'11""\'1$11 Not Apl>l'oved Date:: Bourd orCounty Co.....iss.io.u:rll AIIIK:lIl: i\....pru\".d _" Not Apl"'ov&:c1 Mcdi/l~ Dille: Adml"isn"aflon Insfruetion 114'109.2 P:3/3 JAN;-9-2004 11 : 02A FR(J'1: TD:13l2l5295q3f>q 1".l.&IWn. MONROE ('OlJNTV, lLOIUOA Re""t~t hr W:Ainlr of Insurance Itl'quirf'mt'ot' II is ~qtlested that t11~ illlillr"nrt. rCO'lUin.'ml'lIb. lIS spctllied ill tJw CUIII'Il)"., Scnedule Oflll.;""i1I1('C: KcqulI"emcnl'l, be waived or mnditklll)1I thl: follo~ illg contract. ("olllraranr: National Marine SllIIcllI:lry .'f)Und8Iio"_ ('onttntt for: Dr. N:'RC)' tOiler Flurida Kt)'s t:nvil'olllllclltal ('thler Flori!!ll Kry~ rt'lI~~'steln f:ll.ibit Add..e~~ fit Cun'nletor: 8601 (;enr~llI AVt'RIIC, Suile 101 SilvC'r Sprint. MD 20910 PI'.me: (J01. 6U8.JO,.O Scope of Wllrk: I1tt: National MlII illl' ~lIllctU3f)' l'oun.1..li\1I1 shall I1TOVtde maatcrinllo a'MI ~l"rvi\.'C's to i",'lmh: Jl!:siAIl, pl'Oducti'1n. llll'\ projecr m\lnagcmcnt II!'; life' rClluired to pltlllucc ,mtlln.stall the exhibIt items for the Visit"r \t'ntf!r which would itldutlc r f!nl~ Sign; fntHIIIl:\.' Wall Art: llab1mt Siv.nile\:. OUldnOT Wcknmc ~i!~nap,t; Lobby Bann<.'rs: Il1l1rJmodtl of ,elite., IIlfl.\rnlation Al'ca llrochure!<.. ~I'lr-hdp; coulller /lnd graphics. Rel'$I)n Fn.. W>>tj"l.'r: _ Th~ National MII.jlll' ~lUlrtU:lry "ollndatinn ..leilh..r O\lllD5 Ill)" luses nil," \'(~hil'l~. III :.ddition, lb~ ~MSF will rllSIIR tllat all s.h-cllnrraefors wbo us~ autolllobiles .~ rl'lt!u.t to this pro.ictt, providt: lhelr IIwn RUlfllnsurallt.'t:. P."'''' W.lm wi" 'pply '~U"';;(",.lIIl1 Sijtnal.rc of ClInrraC,"tor: .. ~~ Aprrovtd ~ #- /_NOI ^pproycd .~. M........." ~~ Dath:: dtJL<{ Count). Ad..illu;tril'(tt APPC81; A1)llrO~e" Not A pprovfd Dllh': Board IIr ('1111 nty l'o"lI'Ii~sione,'s ^1'I't!i1l: AI'I'nl\ ,.tI _. t'\ul ^ppl'ov(;d Ml!t!tlnJ U."e: _ ^dD1ini~ln"ion Indrllrtlon #4709.2 t-':C;..) ACORQ CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDNYVY) 01/09/2004 PRODUCER (989)354-3185 FAX (989)354-2364 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Lappan Agency, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 180 South Ripley Blvd. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Alpena, MI 49707 Steven Lappan INSURERS AFFORDING COVERAGE NAIC# INSURED National Marine Sanctuary Foundation INSURER A, Cincinnati Insurance Co. 10677 8601 Georgia Avenue INSURER B, Suite 201 INSURER c, Silver Spring, MD 70910 INSURER D, INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDIN' ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I~f: ~~~~ TYPE OF INSURANCE POLICY NUMBER P~}~~Y EFFECTIVE POLICY EXPIRATION LIMITS GENERAL LIABILITY CPP0737718 08/15/2003 08/15/2004 EACH OCCURRENCE $ 1,000,000 f-- DAMAGE TO RENTED X COMMERCIAL GENERAL LIABILITY $ 500,000 ~ CLAIMS MADE 0 OCCUR MED EXP (Anyone person) $ 10,000 f-- l,OOO,OO(] A PERSONAL & ADV INJURY $ I-- GENERAL AGGREGATE $ 2,000,000 f-- GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS. COMP/OP AGG $ 2,000,000 Ii nPRO- n POLICY JECT LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT f-- (Ea accident) $ ANY AUTO I-- SK MA~M ~NT ALL OWNED AUTOS ~" J BODILY INJURY f-- ~y \ 1.; ~ (Per person) $ SCHEDULED AUTOS JAu I 'A I-- ., ~ "c;. ~lJ HIRED AUTOS BODILY INJURY f-- _~' -1 (Per accident) $ NON.OWNED AUTOS I-- DATE: .--.., A, "~YES / I-- WAIVER PROPERTY DAMAGE $ T'J. (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ R ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ o OCCUR D CLAIMS MADE AGGREGATE $ $ R DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND I T~~~T~J#s I 10J~- EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? E.L. DISEASE, EA EMPLOYEE $ If yes, describe under $ SPECIAL PROVISIONS below E.L. DISEASE. POLICY LIMIT OTHER If1ESCRJPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS t is hereby agreed and understood that the Monroe County Tourist Development Council and the Monroe ~ounty Board of County Commissioners are additional insured but only as this policy provides. Monroe County Board of County Commissioners C/O Risk Management 1100 Simonton Street Room 2-277 Key West, FL 33040 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Steven La n - ACORD 25 (2001/08) ACORD CORPORATION 1988