HomeMy WebLinkAboutR-2020-143 1000 Mermaids Project Corp. Design, Construction and Installation of Artistic Artificial ReefRESOLUTION NO.2020-143
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE EXPENDITURE OF UP TO ONE
HUNDRED THOUSAND DOLLARS ($100,000.00) TOWARDS THE
INSTALLATION OF AN ARTISTIC ARTIFICIAL REEF ALONG DANIA
BEACH'S BEACHFRONT; EXECUTING AN AGREEMENT WITH 1000
MERMAIDS PROJECT CORP. RELATED TO THE DESIGN,
CONSTRUCTION AND INSTALLATION OF THE ARTIFICIAL REEF, AND
TO PROVIDE EDUCATIONAL OPPORTUNITIES TO THE COMMUNITY
RELATING TO REEFS AND PROTECTION OF REEFS; PROVIDING FOR
CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the 1000 Mermaids Project Corp. (1000 Mermaids) is a 501(c) that is an
artificial reef project doubling as a public art installation serving as an underwater eco-friendly
destination for eco-tourism and research; and
WHEREAS, the 1000 Mermaids works with the Ocean Rescue Alliance (ORA) which is
a marine conservation and restoration non-profit organization that implements innovative
techniques to restore the marine environment; and
WHEREAS, ORA creates artificial reefs, develops coral restoration strategies,
educational outreach, conservation awareness and research which fulfills its mission to save
oceans one reef at a time; and
WHEREAS, ORA strives to restore marine ecosystems; aiding in the creation of reef
habitat along with helping the economic development of coastal communities through eco-
tourism; and
WHEREAS, public art efforts create a more unique dive experience that boosts eco-
tourism and the associated economic benefits to local coastal communities, while education
programs seek to empower and inspire future generations to protect and maintain marine
environments; and
WHEREAS, ORA's citizen science program, Coral Rangers, engages local communities
in protecting oceans, reef monitoring and coral restoration efforts; and
WHEREAS, 1000 Mermaids and ORA work with Reef Cells, a South Florida builder of
artificial reef structures in addition to operating a research lab dedicated to developing strategies
regarding fish habitat, coral restoration and estuarine enhancement; and
WHEREAS, Reef Cells was founded by Sculptor and Landscape Architect Christopher
O'Hare, and the organization occupies over five (5) acres and 50,000 sq. ft. of research and a
production facility in Palm Beach County, Florida; and
WHEREAS, Reef Cells has been deploying artificial reef structures in Florida's coastal
waters since 1990 and will assist ORA and 1000 Mermaids in installing artificial reefs; and
WHEREAS, 1000 Mermaids Project Corporation and the Ocean Rescue Alliance,
utilizing Reef Cells issued a proposal to the City of Dania Beach in August -September 2020,
pertaining to the installation of a project for an artificial reef in ocean waters adjacent to the
City's Beach for the protection and enjoyment of the tourists and residents of Dania Beach; and
WHEREAS, the artificial reef is to help restore and enhance the local marine ecosystem;
and
WHEREAS, the proposed project is to be constructed of pH neutral concrete mix
reinforced with natural fibers and marine friendly minerals and would be created under the
direction and supervision of Reef Cells and Ocean Rescue Alliance; and
WHEREAS, the artificial reef seeks to build habitat for marine organisms by providing
complex modules, provide land -based artificial module replicas with sculptures to serve as an
educational and outreach tool to provide an example of how the artificial reefs function for
marine life, and would create a unique diving experience for residents, guests and visitors of
Dania Beach; and
WHEREAS, the City of Dania Beach has reserved funding from the general fund to
proceed with the proposed artificial reef, and the parties desire to memorialize the terms and
conditions for the installation of the artificial reef; and
WHEREAS, the Charter of the City of Dania Beach, Part III, Article 3, Section 4,
Subsection 0), authorizes the City Manager to purchase supplies, services, equipment and
materials for the City government in amounts in excess of the established monetary threshold
without competitive bidding and without advertisement for bids if she is authorized to do so in
advance by a resolution adopted by the City Commission; and
WHEREAS, the Dania Beach Code of Ordinances, Chapter 2, Article 1, Section 2-10,
"Monetary thresholds for certain purchases and payment disbursement authorizations,"
subsection (a), sets the monetary threshold at Twenty -Five Thousand Dollars ($25,000.00) for a
vendor for each fiscal year; and
2 RESOLUTION #2020-143
WHEREAS, the City desires to contract with 1000 Mermaids Project Corp. (1000
Mermaids) related to providing the unique services of creating, constructing, and installing an
artificial reef adjacent to the City's beach; and
WHEREAS, approval is sought to exceed Twenty -Five Thousand Dollars ($25,000.00)
for necessary future services for Fiscal Year 2020-2021, and the funding was appropriated in the
current budget year and made in accordance with the City of Dania Beach Purchasing Policy;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That the above "WHEREAS" clauses are ratified and confirmed, and they
are made a part of and incorporated into this Resolution by this reference.
Section 2. That the City Commission authorizes the City to contract with the 1000
Mermaids Project Corp. related to the design, construction and installation of an artistic artificial
reef adjacent to the City's beachfront, as provided in the Agreement attached as Exhibit "A" to
this Resolution. The Agreement exceeds the annual purchase threshold of the City Manager of
Twenty -Five Thousand Dollars ($25,000.00) for a single vendor for Fiscal Year 2020-2021 but
due to the unique character of the project the City waives all competitive bidding requirements
and authorizes the expenditure of up to One Hundred Thousand Dollars ($100,000.00) this fiscal
year.
Section 3. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 4. That this Resolution shall become effective upon its passage and adoption.
PASSED and ADOPTED on November__10. 2020.
ATTEST:
THOMAS SCHNEIDER, CMC
CITY CLERK
APPROVED AS TO RM ND
THOMAS J.
CITY ATTO
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3 RESOLUTION #2020-143
ARTIFICIAL REEF INSTALLATION AGREEMENT
This Agreement ("Agreement") is made on November , 2020 by and between 1000
MERMAIDS PROJECT CORP. (1000 MERMAIDS or the "First Party"), a Florida non-profit
corporation and the CITY OF DANIA BEACH, a municipal corporation and political subdivision
of the State of Florida (the "Second Party" or "City"). First Party and Second Party may be referred
to individually as the "Party", or as the "Parties".
WHEREAS, Ocean Rescue Alliance (ORA) is a marine conservation and restoration non-
profit organization that implements innovative techniques to restore the marine environment; and
WHEREAS, ORA creates artificial reefs, develops coral restoration strategies, educational
outreach, conservation awareness and research which fulfills its mission to save oceans one reef
at a time; and
WHEREAS, ORA strives to restore marine ecosystems, aiding in the creation of reef
habitat along with helping the economic development of coastal communities through eco-tourism;
and
WHEREAS, public art efforts create a more unique dive experience that boosts eco-
tourism and the associated economic benefits to local coastal communities, while education
programs seek to empower and inspire future generations to protect and maintain marine
environments; and
WHEREAS, ORA's citizen science program, Coral Rangers, engages local communities
in protecting oceans, reef monitoring and coral restoration efforts; and
WHEREAS, Reef Cells is a South Florida builder of artificial reef structures in addition
to operating a research lab dedicated to developing strategies regarding fish habitat, coral
restoration and estuarine enhancement; and
WHEREAS, Reef Cells was founded by Sculptor and Landscape Architect Christopher
O'Hare, and the organization occupies over 5 acres and 50,000 square feet of a research and
production facility located in Palm Beach County, Florida; and
WHEREAS, Reef Cells has been deploying artificial reef structures in Florida's coastal
waters since 1990 and will assist ORA and 1000 Mermaids in installing artificial reefs; and
WHEREAS, 1000 Mermaids Project Corporation and the Ocean Rescue Alliance,
utilizing Reef Cells, issued a proposal to the City of Dania Beach in August -September 2020, to
install a project for an artificial reef along the City's Beach for the protection and enjoyment of
the tourists and residents of Dania Beach; and
WHEREAS, the artificial reef will help restore and enhance the local marine ecosystem;
and
WHEREAS, the proposed project is to be constructed of pH neutral concrete mix
reinforced with natural fibers and marine friendly minerals and would be created under the
direction and supervision of Reef Cells and Ocean Rescue Alliance; and
WHEREAS, the artificial reef seeks to build habitat for marine organisms by providing
complex modules; provide land -based artificial module replicas with sculptures to serve as an
educational and outreach tool to provide an example of how the artificial reefs function for marine
life; and would create a unique diving experience for residents, guests and visitors of Dania Beach;
and
WHEREAS, the City of Dania Beach has reserved funding from the general fund in order
to proceed with the proposed artificial reef, and the parties desire to memorialize the terms and
conditions for the installation of the artificial reef;
NOW, THEREFORE, in consideration of mutual covenants contained in this Agreement,
the receipt and legal sufficiency of which is acknowledged and agreed upon, the parties agree as
follows:
1. Whereas Clauses. The foregoing recitations contained in the "Whereas Clauses" are true and
correct and are incorporated into and made a part of this Agreement by this reference.
2. Purpose. The First Party seeks to provide for the construction of an artificial reef that creates
habitat for various marine life and an underwater sculpture dive destination; a public art
sculpture to support community awareness of the artificial reef; and to hold specific events at
which the parties intend to raise awareness about the current issues affecting coral reefs, marine
life and the ocean. The proposed events are intended to promote ocean stewardship and
environmental awareness and are intended to maintain a product and service that meets or
exceeds all business and industry standards.
3. Artificial Reef Project Scope. The City shall provide the First Party access to the City's beach
and oceanfront, in order for First Party to provide for construction of an artificial reef. The
site characteristics for the proposed artificial reef are as follows (and shall be arranged to be
installed by the First Party):
a. Reef Size
The artificial reef shall consist of approximately 175 feet by 175 feet, at approximately a 40 foot
water depth, with a sandy bottom sea floor. The parties shall agree in writing on one of several
locations for the placement of the artificial reef, as delineated in Composite Exhibit A, after
consultation and written approval is obtained by First Party from both Florida Atlantic University
(Sea Tech facility) and the U.S. Navy.
b. Reef Layout
The first Party is to provide twenty (20) artificial reef modules including five (5) artistic sculptures
to be deployed off Dania Beach in Broward County's approved Dania Artificial Reef Permit Zone
(Dania Memphis Zone, Distance from Shore Less Than One (1) Nautical Mile, Depth Approx. 40
feet). The artificial reef will consist of 20 modular reef units organized in two to three (2-3) loosely
staggered rows and also contain three to five (3-5) sculptures to be chosen by the City. The entire
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reef will have a configuration that will run parallel to the shoreline. Each reef module will have a
minimum footprint of approximately 21 square feet and be positioned to create a three to six (3-
6) foot gap of exposed seafloor between each unit. Reef modules will vary in height from three
and a half (3.5) feet to eight (8) feet high.
c. Reef Material
Each reef module will be composed of three major physical elements:
• Cellular walls of the upper structure which will be fabricated from concrete made with "ductile"
cement additives and coated with granular calcium carbonate.
• Ballasted base concrete required for stability and resistance to localized dynamic forces will be
3000 psi concrete mix.
• Each reef module will be fabricated with pH neutral concrete material.
d. Reef Physical Characteristics
Each reef module will consist of:
• Interior chambers of varying sizes for both large and small marine organisms.
• Pass through perforations of varying sizes for water exchange, sunlight penetration and habitat
variation.
• A ballasted base providing increased stability and resistance to local dynamic forces.
e. Reef Specifications
The reef specifications shall consist of.
Dimensions: 3.5 feet wide x 6 feet long (21 square feet each)
Height range: 3.5 feet, 6 feet and 8 feet high
Weight: Each approximately 2200-3300 pounds
Material Composition: Cellular and Habitat Portion of Module: pH neutral, "ductile" concrete
matrix, Graded CaCo 3 coating
Ballast Portion of Module: 3,000 PSI locally sourced concrete with additives
Coral Attachment: Coral Lok frag receivers and attachment plugs.
Defining "Coral Lok. " All reef modules will be fabricated with Coral Lok receivers which are
designed to facilitate the rapid attachment of rescued and cultivated corals nursery grown on Coral
Lok plugs. This system of mechanically attaching coral fragments to the reef structure potentially
eliminates many of the challenges inherent in traditional coral out -planting. Corals attached using
Coral Lok devices can be planted more quickly, and potentially suffer less trauma. It also
eliminates the use of epoxy when out -planting coral. Fragmented corals are able to merge onto the
surrounding calcium carbonate coated reef structure.
f. Logistics
A sea -going barge and crane is required for final deployment of the reef modules. The project
scope does not include the cost of the barge and crane. The parties shall be conducting fund raising
and seeking the donation of barge and crane services.
g. Method of Construction
• Ocean Rescue Alliance and Reef Cells will cooperate to fabricate 20 modules producing artificial
reef modules designed to meet project goals and objectives and will supervise local transit and
deployment of reef modules.
• The First Party shall make arrangements so that the reef modules will be transported by local
machinery and operators from the staging/construction site to an ocean-going barge for
deployment at the City beach site.
h. Land Artistic Sculptures.
The First Party will provide two (2) land -based "selfie tails" and two (2) land -based artistic reef
replica modules with sculptures to be used as a public art and educational opportunity to raise
community awareness about the issues that coral reefs and marine life face. The land replicas of
the artistic sculptures for educational and tourist purposes to advise the community of the
installation of the artificial reefs will be placed in public spaces selected by the City.
4. Responsibilities of the City. The City will work with First Party, but it is the responsibility
of First Party to provide all necessary information to acquire county or state permits and
provide event permits as required by local and state regulations for all agreed -upon events and
functions to facilitate community involvement and impact during the planning phases and
leading up to the deployment day of the artificial reef. The City will work with First Party to
fundraise as necessary to provide a barge and crane for the deployment along with other
necessary port authority charges and other unforeseen fees as necessary to finalize the
deployment of twenty (20) artificial reef modules off Dania Beach. The barge and crane are
not part of the cost estimate included in this Agreement. The City will determine the exact
locations for the installation of the artificial reef based upon the renderings located in
Composite Exhibit A.
Time/ Schedule. The term of this Agreement shall be for a period of two (2) years from the
date of this Agreement and the term may be extended upon written mutual agreement of both
Parties. The estimated deployment of the artificial reef will be June 2021. Four (4) citizen
science opportunities will also be provided by First Party such as beach clean-ups, coral bleach
watch training, or other public ocean minded events to educate the public on marine issues and
how this project will impact the City and Broward County. The specific dates of these events
will be discussed with the City in advance and will be coordinated with the City to provide
ample community and resident involvement. First Party will work with the City to create and
execute the necessary fundraising and marketing campaigns to raise funds to finalize the
project as well. All artistic direction and events will be coordinated and finalized at the
direction of the City.
6. Price. Project costs are detailed into construction of land -based and underwater artificial reef
modules with artistic sculptures, environmentally centered educational and outreach events,
and pre and post deployment site monitoring. The price does not include the cost of the barge
or crane utilized in installation. The proposed budget is as follows:
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Land Based Selfie Tails
2
$2,000
$4,000
Land -Based Replica Reef Sculpture
Modules
2
$3,000
$6,000
Underwater Modules
15
$2,500
$37,500
Underwater Modules with Sculptures
5
$5,500
$27,500
Coral Rangers Programming 4 events
4
$2,250
$9,000
Pre -site Inspection/Site Monitoring1
$2,000
$2,000
Post Deployment Monitoring1
$3,000
$3,000
Travel Expenses
1
$1,000
$1,000
Marketing for
Events/Fundraising/Deployment
2
$3,000
$6,000
Permitting
1
$2,000
$2,000
Administrative Fees
1
$2,000
$2,000
TOTAL
100,000.00
The City's performance and obligation to perform under this Agreement for subsequent fiscal
years is contingent upon annual appropriations for its purpose by the City Commission.
7. Change in Scope of Services. Either party may request changes that increase, decrease or
otherwise modify the services, as described in this Agreement. These changes may affect the
compensation, and, if so, they must be described in a written Amendment to this Agreement,
executed by the authorized agents of both of the parties, prior to any deviation from the terms
of this Agreement. In no event will First Party deviate or permit deviation from the services
described above without the City's advance written consent.
EEO Compliance. No party to this Agreement may discriminate on the basis of race, color,
sex, religion, national origin, disability, age, marital status, political affiliation, sexual
orientation, pregnancy, or gender identity and expression in the performance of this
Agreement. Failure by any party to carry out any of the requirements of this section shall
constitute a material breach of this Agreement, which shall permit any other party to terminate
this Agreement or to exercise any other remedy provided under applicable law, all such
remedies being cumulative.
9. Termination
(a) This Agreement may be terminated for cause by an aggrieved party if a party in breach
has not corrected the breach within ten (10) days after receipt of written notice from
the aggrieved party identifying the breach. This Agreement may also be terminated for
convenience by the Parties' respective agents, boards or commissions. Termination for
convenience shall be effective on the termination date stated in the written notice
provided pursuant to the Notices section, which termination date shall be not less than
thirty (30) days after the date of such written notice. This Agreement may also be
terminated by the City Manager upon such notice as the City Manager deems
appropriate under the circumstances in the event the City Manager determines that
termination is necessary to protect the public health, safety, or welfare. If either party
erroneously, improperly, or unjustifiably terminates for cause, such termination shall
be deemed a termination for convenience, which shall be effective thirty (30) days after
such notice of termination is provided.
(b) Notice of termination shall be provided in accordance with the "NOTICES" section of
this Agreement except that notice of termination by the City Manager, which the City
Manager deems necessary to protect the public health, safety, or welfare may be verbal
notice that shall be promptly confirmed in writing in accordance with the "NOTICES"
section of this Agreement.
(c) In the event this Agreement s terminated for convenience by the City, the cost of any
services properly performed under the Agreement through the termination date
specified in the written notice of termination shall be paid.
10. Protection of City's Property. At all times during the performance of this Agreement, the
First Party shall protect the City's property and the property of others, from all damage
whatsoever on account of First Parry's performance of the requested services, including
services performed by others at First Party's request or direction.
11. Indemnification. First Party shall, in addition to any other obligation to indemnify the City
and to the fullest extent permitted by law, protect, defend, indemnify and hold harmless the
City, including its agents, elected officials and employees from and against all claims, actions,
liabilities, losses (including economic losses), or costs arising out of any actual or alleged:
(a) bodily injury, sickness, disease or death, or injury to or destruction of tangible property
including the loss of use resulting therefrom, or any other damage or loss arising out of
or resulting or claimed to have resulted in whole or in part from any actual or alleged
act or omission of the First Party, anyone directly or indirectly employed by it, or
anyone for whose acts any of them may be liable in the performance of the services; or
any of its Subcontractors in the performance of or related in any way to the service and
reef components;
(b) liens, claims, actions made by the First Party or any other authorized party performing
the services;
(c) claims of whatsoever nature related to collection practices or any actions of a
contradictory nature pursuant to contract or in an attempt to collect monies due or
claimed to be due to the City.
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12. Insurance.
(a) The First Parry shall not commence any services under the Agreement until First Party has
obtained all insurance required under this Article, and not until such time that the coverages
are approved by the Risk Manager of the City. The First Party shall not allow any
employee of it or any Subcontractor entity or person to commence any services on any
subcontract until the Subcontractor and all coverages required of any Subcontractor have
been obtained and approved by the Risk Manager of the City. In addition, the First Party
shall be responsible for any and all policy deductibles and self -insured retentions.
(b) All certifications of insurance must clearly identify the Agreement to which they pertain,
including a brief description of the subject matter of the Agreement. Insurance policies for
required coverages shall be issued by companies authorized to do business under the laws
of the state of Florida and any such companies' financial ratings must be no less than A-
VII in the latest edition of the `Best's Key Rating Guide", published by A.M. Best Guide.
In the event that the insurance carrier's rating shall drop, the insurance carrier shall
immediately notify the City in writing.
(c) Coverages shall be in force until all services required to be performed under the terms of
the Agreement are satisfactorily completed as evidenced by the formal written acceptance
by the City. In the event insurance certificates provided to City indicate that the insurance
shall terminate and lapse during the period of the Agreement, then in that event, the First
Party shall furnish, at least thirty (30) days prior to the expiration of the date of such
insurance, a renewed Certificate of Insurance as proof that equal and like coverages for the
balance of the period of the Agreement. THE FIRST PARTY AND ANY
SUBCONTRACTOR SHALL NOT PERFORM OR CONTINUE ANY SERVICES
PURSUANT TO THE AGREEMENT, UNLESS ALL COVERAGES REMAIN IN
FULL FORCE AND EFFECT. ANY DELAY IN THE SERVICES CAUSED BY A
LAPSE IN COVERAGE SHALL BE NON -EXCUSABLE, SHALL NOT BE
GROUNDS FOR A TIME EXTENSION, AND WILL BE SUBJECT TO ANY
OTHER APPLICABLE PROVISIONS DESCRIBED IN THE AGREEMENT
CONCERNING THE FIRST PARTY'S DELAY.
(d) The following are requirements that must be met regarding the First Party's delivery
of Certificates of Insurance for all coverages required under the Request for
Proposals and this Agreement:
Insurance Requirements
The below coverages are minimum limit requirements. Umbrella or Excess Liability policies are
acceptable to provide the total required liability limits, as long as the Risk Manager of the City
reviews and approves in writing the insurance limits on each of the policies. The City must
approve any changes to these specifications and has the right to review and amend coverage
requirements. The First Party shall be held responsible for any modifications, deviations, or
omissions in these insurance requirements.
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General Liability Insurance is to include bodily injury, broad form property damage, products and
completed operations, blanket contractual liability with limits of no less than One Million Dollars
($1,000,000.00) per occurrence, and Two Million Dollars ($2,000,000.00) annual
aggregate. Annual Aggregate shall apply "Per Job".
Special Provisions as To General Liability Insurance (to be confirmed on or attached to the
Official Certificate of Insurance)
30 Days' Notice of Cancellation or modification to City (if not available on the
insurance policies, then First Party has responsibility for notification); and
• "The City of Dania Beach, Florida" is named as an Additional "Named" Insured;
The products and completed operations coverage shall apply for the City as additional
"named" insured for a period of no less than five (5) years following the completion of the
Project. First Party's products and completed operations policy shall have no time
limitation on the coverages for the City's additional "named" insured status. Additional
insured coverage shall be no more restrictive than Insurance Services Office (ISO) form
CG 2037 (07 04);
• First Party's insurance shall be primary and non-contributory;
• Waiver of Subrogation in favor of the City.
Workers' Compensation Insurance shall be maintained by First Party and any
Subcontractor during the term of the Agreement, and it is to apply to all "statutory employees" of
the First Party (and any entity or person involved directly or indirectly with the work of this
Agreement, including barge and deployment activities) as that phrase is defined by Chapter 440,
Florida Statutes), in compliance with the "Workers' Compensation Law" of the State of Florida
and all applicable federal laws, for the benefit of the First Party, its employees, and
Subcontractors.
• In the case any services are subcontracted as otherwise addressed in the Agreement the
First Party shall require any Subcontractor similarly to provide Workers' Compensation Insurance
for all of the latter's employees, in addition to any coverage afforded by the First Party, by
furnishing statutory limits Part A.
• Employer's Liability Part B shall be in an amount of no less than One Million Dollars
($1,000,000.00) each accident, and One Million Dollars ($1,000,000.00) annual aggregate.
In no event shall the First Party be permitted to utilize in the prosecution of the services, the
following:
i) any employee, Subcontractor or Subcontractor employees, who is exempted or
purported to be exempt from Workers' Compensation insurance coverage; or
ii) any employee, Subcontractor or Subcontractor employees, who will be covered by an
employee leasing arrangement.
Special Provisions As To Workers' Compensation Insurance: (to be confirmed on or attached to
the Official Certificate of Insurance)
• 30 Days' Notice of Cancellation or modification to City (if not available on the
insurance policies, then First Parry has responsibility for notification); and
• Waiver of Subrogation in favor of the City.
Automobile Liability Insurance shall be maintained by First Parry and all Subcontractors with
combined single limits of no less than One Million Dollars ($1,000,000.00) per occurrence, and
no less than Two Million Dollars ($2,000,000.00) annual aggregate, to include coverage for
owned, hired, and non -owned vehicles.
Special Provisions As To Automobile Liability Insurance: (to be confirmed on or attached to the
Official Certificate of Insurance)
• "The City of Dania Beach, Florida" is named as an Additional "Named" Insured;
30 Days' Notice of Cancellation or modification to City (if not available on the
insurance policies, then First Party has responsibility for notification); and
• Waiver of Subrogation in favor of City.
If any Subcontractor is used for any portion of any services, then such Subcontractor Party
shall provide all insurance coverages to the same extent as the First Party.
The First Party shall hold the City, its agents and employees, harmless on account of claims for
damages to persons, property or premises arising out of the operations related to the services. The
City reserves the right to require First Parry to provide and pay for any other insurance coverage
the City deems necessary, depending upon the possible exposure to liability. Current Certificates
of Insurance shall be provided and on file with the City at all times.
13. Bankruptcy. It is agreed that if the First Party is adjudged bankrupt, either voluntarily or
involuntarily, then this Agreement shall terminate effective on the date and at the time the
bankruptcy petition is filed. Upon such filing of Bankruptcy, First Party will automatically be
in default of this Agreement and provisions of Article 3 will be enforced at City's discretion.
14. Default of Agreement and Remedies. In case of any default by First Party, the City shall
notify the First Party in writing of such default and direct First Parry to comply with all terms
and conditions of this Agreement. If First Party does not timely cure such default within seven
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(7) days after notice was sent by City, City may declare a default of this Agreement, and may
notify the First Parry of such declaration of default in writing, and terminate the Agreement.
15. Dispute Resolution
(a) Venue; Fees. All claims, counterclaims, disputes and other matters in question between
City and First Party arising out of, relating to or pertaining to this Agreement, or the breach
of it, or the services of it, or the standard of performance required in it, shall be addressed
by resort to non -binding mediation as authorized under the laws and rules of Florida;
provided, however, that in the event of any dispute between the parties, the parties agree
to first negotiate with each other for a resolution of the matter or matters in dispute and,
upon failure of such negotiations to resolve the dispute, the parties shall resort to
mediation.
(b) If mediation is unsuccessful, any such matter may be determined by litigation in a court
of competent jurisdiction in Broward County, Florida, or the Federal District Court of the
Southern District of Florida and appropriate appellate courts for such venue and
jurisdiction. In any litigation, the parties agree to each waive any trial by jury of any and
all issues. In the event of any litigation which arises out of, pertains to, or relates to this
Agreement, or the breach of it, or the standard of performance required in it, each party
shall bear its own attorney fees and costs.
(c) Operations during Dispute. In the event that a dispute, if any, arises between the City
and the First Party relating to this Agreement, or its performance or compensation, the First
Party agrees to continue to render services in full compliance with all terms and conditions
of this Agreement as required by the City until the dispute is resolved.
16. Rights in Documents and Work. Any and all reports, photographs, surveys, and documents
created by either party in connection with performing the services under this Agreement shall be
owned by the City. If a copyright is claimed by City, the City grants the First Party a non-exclusive
license to use the copyrighted item(s) indefinitely to prepare derivative works and to make and
distribute copies to the public. In the event of termination of this Agreement, any reports,
photographs, surveys, and other documents prepared by First Party whether finished or unfinished,
shall remain City's property, and if in the possession of First Party, shall be delivered by the First
Party to the City's Contract Administrator within seven (7) days of termination of this Agreement
by either parry.
17. Public Records. First Party and to the extent Subcontractors are used in the performance of
services of this Agreement, all of them shall abide by the Florida Public Records Laws.
First Party shall maintain books, records, documents and other evidence directly pertinent
to performance of work under this Agreement in accordance with generally accepted accounting
principles and practices. The First Party shall also maintain the financial information and data
used by the First Party in the preparation of support of any claim for reimbursement for any out-
of-pocket expense or cost. The City shall have access to such books, records, documents and other
evidence for inspection, audit and copying during normal business hours. The First Parry will
provide proper facilities for such access and inspection. Audits conducted under this section shall
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observe generally accepted auditing standards and established procedures and guidelines of the
City. The Florida Public Records Act, Chapter 119 of the Florida Statutes, may have application
to records or documents pertaining to this Agreement and First Party acknowledges and agrees
that such laws have possible application and agrees to comply with all such laws.
Upon request from the City custodian of public records, First Party and any
Subcontractors shall provide the City with a copy of the requested records or allow the records to
be inspected or copied within a reasonable time at a cost that does not exceed the cost provided by
Chapter 119, Florida Statutes, or as otherwise provided by law.
Unless otherwise provided by law, any and all records, including but not limited to reports,
surveys, and other data and documents provided or created in connection with this Agreement are
and shall remain the property of the City.
Upon completion of the services under this Agreement or in the event of termination by
either party, any and all public records relating to the Agreement in the possession of the First
Party shall be delivered by the First Party to the City Manager, at no cost to the City, within seven
(7) days. All such records stored electronically by First Party shall be delivered to the City in a
format that is compatible with the City's information technology systems. Once the public records
have been delivered upon completion or termination of this Agreement, the First Party shall
destroy any and all duplicate public records that are exempt or confidential and exempt from public
records disclosure requirements.
Any compensation due to First Party shall be withheld until all records are received as
provided in this Agreement.
First Party's failure or refusal to comply with the provisions of this section shall result in
the immediate termination of this Agreement by the City.
Section 119.0701(2)(a), Florida Statutes
IF THE FIRST PARTY HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE FIRST
PARTY'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS
AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS.
Custodian of Records:
Mailing Address:
Telephone number:
THOMAS SCHNEIDER, CMC
CITY CLERK
100 W. Dania Beach Boulevard
Dania Beach, Florida 33004
954-924-9800, Ext. 3624
Email: tschneider(a,daniabeachfl.2ov
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18. Independent First Party. First Parry agrees that it is not the City's employee for any
purposes, including but not limited to, the application of the Fair Labor Standards Act, minimum
wages' laws and overtime payments, Federal Insurance Contribution Act, the Social Security Act,
the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the Florida
Workers' Compensation Act, and the Florida unemployment insurance laws as well as any other
law or regulation of any kind. The First Party shall retain sole and absolute discretion and exercise
its judgment as to the manner and means of carrying out First Parry's activities and responsibilities
toward completion of services. Administrative procedures applicable to services rendered under
this Agreement shall be those of First Party, which policies of First Party shall not conflict with
City, H.U.D., or United States policies, rules or regulations relating to the use of First Party's funds
provided for in this Agreement. The First Party agrees that it is a separate and independent
enterprise from the City, that it has full opportunity to find other business, that it has made its own
investment in its business, and that it will utilize a high level of skill necessary to perform the
services. This Agreement shall not be construed as creating any joint employment relationship
between the First Party and the City and the City will not be liable for any obligation incurred by
First Party, including those of any of its contractors and Subcontractors, and including but not
limited to unpaid minimum wages, overtime premiums or both.
19. Third -Party Beneficiaries. Neither Party intends to directly or substantially benefit a third
parry by this Agreement. Therefore, the Parties acknowledge and agree that there are no third -
party beneficiaries to this Agreement and that no third party shall be entitled to assert a right or
claim against either of them based upon this Agreement.
20. Notices. In order for a notice to a party to be effective under this Agreement, notice must be
sent via U.S. first-class mail, hand delivery, or commercial overnight delivery, each with a
contemporaneous copy via e-mail, to the addresses listed below and shall be effective upon mailing
or hand delivery (provided the contemporaneous e-mail is also sent). The addresses for notice
shall remain as set forth in this section unless and until changed by providing notice of such change
in accordance with the provisions of this section.
As to FIRST PARTY:
1000 Mermaids Project Corp.
501 SE 2°a Street, #637
Fort Lauderdale, Florida 33301
As to CITY/ SECOND PARTY:
Ms. Ana Garcia
City Manager
City of Dania Beach
100 W. Dania Beach Boulevard
Dania Beach, Florida 33004
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with a copy to:
Thomas J. Ansbro, Esq.
City Attorney
City of Dania Beach
100 W. Dania Beach Boulevard
Dania Beach, Florida 33004
21. Subcontractors. All Subcontractor must be expressly identified in this Agreement or
otherwise approved in advance and in writing by the City Manager. Except for subcontracting
approved by the City Manager in advance, neither this Agreement nor any right or interest herein
may be assigned, transferred, subcontracted, or encumbered without the prior written consent of
the respective Party. If any Party violates this provision, the other parry shall have the right to
immediately terminate this Agreement.
22. Materiality and Waiver of Breach. Each requirement, duty, and obligation set forth in this
Agreement was bargained for at arm's-length and is agreed to by the Parties. Each requirement,
duty, and obligation set forth in this Agreement is substantial and important to the formation of
this Agreement, and each is, therefore, a material term of it. Each of the Party's failure to enforce
any provision of this Agreement shall not be deemed a waiver of such provision or modification
of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed
a waiver of any subsequent breach and shall not be construed to be a modification of the terms of
this Agreement.
23. Compliance with Laws. The Parties shall comply with all applicable federal, state, and local
laws, codes, ordinances, rules, and regulations in performing its services, duties, responsibilities,
and obligations pursuant to this Agreement.
24. Severability. In the event any part of this Agreement is found to be unenforceable by any
court of competent jurisdiction, that part shall be deemed severed from this Agreement and the
balance of this Agreement shall remain in full force and effect.
25. Joint Preparation. This Agreement has been jointly prepared by the Parties and shall not be
construed more strictly against either Party.
26. Interpretation. The titles and headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of this Agreement. All
personal pronouns used in this Agreement shall include the other gender, and the singular shall
include the plural, and vice versa, unless the context otherwise requires. Whenever reference is
made to a section or article of this Agreement, such reference is to the section or article as a whole,
including all of the subsections of such section, unless the reference is made to a particular
subsection or subparagraph of such section or article. Any reference to "days" means calendar
days, unless otherwise expressly stated. Any provision of this Agreement.
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27. Priority of Provisions. If there is a conflict or inconsistency between any term, statement,
requirement, or provision of any document or exhibit attached to or referenced or incorporated
in this Agreement, the provisions contained in Articles 1 through 9 shall prevail and be given
effect.
28. Law, Jurisdiction, Venue, Waiver of Jury Trial. This Agreement shall be interpreted and
construed in accordance with and governed by the laws of the state of Florida. The Parties agree
that the exclusive venue for any lawsuit arising from, related to, or in connection with this
Agreement shall be in the state courts of the Seventeenth Judicial Circuit in and for Broward
County, Florida. If any claim arising from, related to, or in connection with this Agreement must
be litigated in federal court, the Parties agree that the exclusive venue for any such lawsuit shall
be in the United States District Court or United States Bankruptcy Court for the Southern District
of Florida. BY ENTERING INTO THIS AGREEMENT, THE PARTIES EXPRESSLY
WAIVE ANY RIGHTS THE PARTIES MAY HAVE TO A TRIAL BY JURY OF ANY
CIVIL LITIGATION RELATED TO THIS AGREEMENT.
29. Amendments. No modification, amendment, or alteration in the terms or conditions contained
in this Agreement shall be effective unless contained in a written document prepared with the same
or similar formality as this Agreement and executed by the Parties.
30. Prior Agreements. This Agreement represents the final and complete understanding of the
Parties regarding the subject matter and supersedes all prior and contemporaneous negotiations
and discussions regarding that subject matter. There is no commitment, agreement, or
understanding concerning the subject matter of this Agreement that is not contained in this written
document.
31. Payment of Interest. Each of the Parties shall not be liable to pay any interest to any of the
other Parties for any reason, whether as prejudgment interest or for any other purpose, and in
furtherance of that statement, both of the Parties waive, reject, disclaim, and surrender any and all
entitlement it has or may have to receive interest in connection with a dispute or claim arising
from, related to, or in connection with this Agreement. This paragraph shall not apply to any claim
for interest, including for post judgment interest, if such application would be contrary to
applicable law. If, for whatever reason, the preceding subsection is determined to be invalid or
unenforceable by a court of competent jurisdiction, the annual rate of interest payable by any of
the Parties under this Agreement, whether as prejudgment interest or for any other purpose, shall
be, to the full extent permissible under applicable law, 0.25% (one quarter of one percent) simple
interest (uncompounded).
32. Incorporation by Reference. The attached Exhibits are incorporated into and made a part of
this Agreement.
33. Counterparts and Multiple Originals. This Agreement may be executed in multiple
originals, and may be executed in counterparts, each of which shall be deemed to be an original,
but all of which, taken together, shall constitute one and the same agreement.
34. Use of City Logo. First Party shall not use City's name, logo, or otherwise refer to this
Agreement in any marketing or publicity materials without the prior written consent of the City.
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35. Representation of Authority. Each individual executing this Agreement on behalf of a parry
represents and warrants that he or she is, on the date he or she signs this Agreement, duly
authorized by all necessary and appropriate action to execute this Agreement on behalf of such
parry and does so with full legal authority.
36. Contingency Fee. Each of the Parties represents that it has not paid or agreed to pay any
person or entity, other than a bona fide employee working solely for a party, any fee, commission,
percentage, gift, or other consideration contingent upon or resulting from the award or making of
this Agreement.
37. Force Majeure. If the performance of this Agreement, or any obligation under it, is prevented
by reason of hurricane, earthquake, or other casualty caused by nature, or by labor strike, war, or
by a an epidemic or pandemic or by law, order, proclamation, regulation, or ordinance of any
governmental agency, the party so affected, upon giving prompt notice to the other parry, shall be
excused from such performance to the extent of such prevention, provided that the Party so affected
shall first have taken reasonable steps to avoid and remove such cause of non-performance and
shall continue to take reasonable steps to avoid and remove such cause, and shall promptly notify
the other Party in writing and resume performance whenever such causes are removed; provided,
however, that if such non-performance exceeds sixty (60) days, the Party that is not prevented
from performance by the force majeure event shall have the right to terminate this Agreement upon
written notice to the other Party. This section shall not supersede or prevent the exercise of any
right the Parties may otherwise have to terminate this Agreement.
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IN WITNESS OF THE FOREGOING, the Parties have executed this Agreement
effective on the date first above written.
ATTEST:
THOMAS SCHNEIDER, CMC
CITY CLERK
APPROVED AS TO FORM AND
CORRECTNESS:
THOMAS J. ANSBRO
CITY ATTORNEY
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CITY:
CITY OF DANIA BEACH, FLORIDA,
a Florida municipal corporation
LORI LEWELLEN
MAYOR
ANA M. GARCIA, ICMA-CM
CITY MANAGER
WITNESSES:
Signature
PRINT Name
Signature
PRINT Name
STATE OF FLORIDA)
COUNTY OF BROWARD)
FIRST PARTY:
1000 Mermaids Project Corp.
a Florida non-profit corporation
Signature
PRINT Name
Title
Dated: , 2020
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, on , 2020, by
as of 1000 Mermaids Project Corp., a Florida non-profit corporation,
on behalf of the corporation. He is personally known to me or has produced
as identification.
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Notary Public, State of Florida
Print Name