Item E5
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: FEBRUARY 17, 2000
Division: TDC
Bulk Item: Yes XXX No
Department:
N/A
AGENDA ITEM WORDING:
Approval of an Agreement with Smith Travel Research, Inc to provide local
market research reports.
ITEM BACKGROUND:
TDC to approve same at their meeting of February 9,2000.
PREVIOUS RELEVANT BOCC ACTION:
BOCC approved FY 2000 budget at their meeting of September 22, 1999.
STAFF RECOMMENDATION:
Approval Requested
TOTAL COST:$3,840.00
BUDGETED: YES
COST TO COUNTY: $3,840.00 /TOURIST PAY
APPROVED BY: County Attorney ~ OMB/Purchasing~ Risk Management X
DIVISION APPROVAL: ~/";J/l/t2czUvL-/
Lynda M. Stuart
(Type/print name)
DOCUMENTATION: Included: X To Follow: Not Required
Agenda Item #1"~
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract #
Contract with: Smith Travel Research, Inc. Effective Date: 2/17/2000
Contract Purpose/Description: Approval of an Agreement with Smith Travel Research, Inc. to provide local
market research reports in an amount not to exceed $3,840.00 for the first year and an amount to be adjusted
thereafter for CPI, effective January 1, 2000 through December 31, 2000 with an option to extend agreement
for two (2) additional 12 month periods.
Contract Manager: Maxine Pacini
(Name)
X3523
(Ext)
Tourist Development Council
(Department)
For BOCC meeting on 2/17/2000
Agenda Deadline:2/2/2000
Contract Costs
Total Dollar Values of Contract: $$3,840.00 Current Year Portion: $
Budgeted? Yes ~ No Account Codes: 116-76065-530340-T06G 250 X
Grant: $
County Match: $
Estimated Ongoing Costs: $
(not included in dollar value above)
ADDITIONAL COSTS
tyro For:
(e.g. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
DATE IN
CHANGES
NEEDED?
Yes No
REVIEWER
DA TE OUT
Division Director
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(Final reviewer should return con~ originator)
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Risk Management
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Comments:
LOCAL MARKET REPORT AGREEMENT
This AGREEMENT is made effective this the ~ day of ,2000 by and between SMITH TRAVEL
RESEARCH, INC., 105 Music Village Boulevard, Hendersonville, Tennessee 37075 (hereinafter referred to as "STR"),
and MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC), in care of the Monroe County Tourist
Development Council, 1201 White Street, Suite 102, Key West, Florida 33040, (hereinafter referred to as "Client").
Introduction
STR is a leader in the lodging research industry. STR has developed a series of local market reports, which are
designed to present data on the relative performance of lodging industry properties in selected competitive markets and
segments of the lodging industry. Client desires to become a participant in the local market report program. Therefore, by
entering into this Agreement, Client becomes a participant in the local market report program. This Agreement outlines the
obligations and responsibilities of the respective parties participating in the local market report program.
Agreement
In consideration of the following mutual covenants, STR and Client agree as follows:
DURA TION. Client shall participate in the local market report program for a period of thirty-six (36) months,
commencing January 1,2000 (November data), and ending on December 31, 2002. (October data) Client has the option
to extend this agreement for two (2) additional 12-month periods, and can do so by providing 60 days prior written notice
to STR.
REPORTS. As consideration for the PAYMENT described below and Client's participation in the local market report
program, Client shall receive a set of twelve (12) monthly reports prepared by STR. The first set of reports shall be issued
to Client on or about January 5, 2000, and subsequent reports will be forvvarded thereafter to Client on or about the first
week of each month. The reports forvvarded to Client shall include the type of market and market segment information
contained in the sample reports attached as Exhibit "A" (Lodging Outlook Survey),which is fully incorporated to this
Agreement by this reference.
PAYMENT. As consideration for participating in the Local Market Report program, Client agrees to pay STR for the
first year of this agreement (January 1,2000 through December 31,2000) the total annual sum of three thousand, eight
hundred forty dollars ($3,840.00), with three hundred twenty dollars ($320.00) payable per month, within ten (10) days
after the last day of the month for which payment is due, and thereafter the amount shall be adjusted for CPI. Client shall
also provide STR with t~e (3) copies of each edition of Client's local market report, newsletter, publication (if any) in
which the STR data (defined below) is printed as they are published, produced and/or disseminated. Payments for
subsequent years of this agreement shall be agreed upon by both Client and STR.
PUBLICATION FORMAT. If the local market report data is published or re-printed by Client in a newsletter or other
such periodic report that is primarily based on STR data, Client must inform STR of their intent to so incorporate such
information or data and allow STR, at STR's election, to be cited as the source of such information or data. The citation of
STR as the source of such data and information may include mention of STR in the masthead and/or title of the
publication in such a way as to clearly indicate that the newsletter or report is a "joint publication of Client and Smith
Travel Research, Inc.", "published in cooperation with Smith Travel Research, Inc." or any other suitable joint recognition
requested by STR. In addition, the masthead or title must be approved by STR prior to the initial publication of such
newsletter, report, or publication. Any modifications to the masthead and/or title after STR has approved the format of the
same, unless re-approved by STR, shall be considered a breach of this Agreement and allow STR to terminate this
Agreement immediately in accordance with the other provisions set forth below.
If STR determines or othervvise agrees that the local market report data is merely a small part of the information regularly
presented in Client's newsletter or periodic report (Le., in addition to other topics of discussion such as member issues and
industry news), after inquiry and disclosure by Client, STR may opt to instruct Client not to include the aforementioned
joint recognition of STR and Client in the masthead and/or title.
ANY AND ALL REFERENCES TO OR INCLUSION OF STR'S LOCAL MARKET REPORT DATA IN ANY AND ALL
TEXT, TABLES, GRAPHS, CHARTS, ETC., MUST BE CLEARLY ATTRIBUTED TO STR AS THE SOURCE OF THE
DATA WHEREVER IT APPEARS AND IN WHATEVER FORM IT APPEARS. STR RESERVES THE RIGHT TO
WITHHOLD MONTHLY LOCAL MARKET REPORT DATA IF CLIENT'S PUBLICATION OF THE STR DATA DOES NOT
CONFORM TO THE PROVISIONS OF THIS AGREEMENT
FURTHERMORE, IF STR DETERMINES THAT CLIENT HAS INTENTIONALLY OR REPEATEDLY FAILED TO CITE
STR AS THE SOURCE OF THE DATA OR INFORMATION INCLUDED IN ANY CLIENT PUBLICATION, STR SHALL
HAVE THE FURTHER RIGHT(S) TO DO SUCH THINGS AS: IMMEDIATELY TERMINATE THIS AGREEMENT,
PROHIBIT CLIENT FROM FURTHER REPRODUCTION OR USE OF THE STR DATA OR INFORMATION, OR BRING A
CAUSE OF ACTION AGAINST CLIENT FOR INFRINGEMENT OF STR'S COPYRIGHTS.
IF STR EXCUSES ANY FAILURE BY CLIENT TO CITE STR AS THE SOURCE OF THE DATA AND INFORMATION
ATTRIBUTABLE TO STR, AND STR THEREFORE WAIVES A RIGHT OF ACTION AGAINST CLIENT, SUCH WAIVER
OR ACQUIESCENCE SHALL NOT BE CONSTRUED AS A WAIVER OF EACH OR ANY SUBSEQUENT RIGHT OF
ACTION, OCCURRENCE OR BREACH BY CLIENT
DEFAULT. In the event that Client shall not make payment when due, STR shall be under no obligation to provide
monthly reports to Client until such time as the overdue payment is paid. In the event that payment shall remain unpaid
for a period of 60 days after its due date, this Agreement shall automatically terminate and otherwise become null and
void, and STR shall have no further obligations; provided, however, that STR shall have the right to declare due and
payable all sums due under the terms of this Agreement.
DEFAULT COSTS. In the event of Client's default under the terms of this Agreement, STR shall be entitled to receive
from Client, in addition to all other amounts due, the costs of collection, including reasonable attorney's fees, incurred in
the collection of amounts due under the terms of this Agreement.
OWNERSHIP OF THE DATA. All of STR's data, without regard to the form or content of the report in which it is
incorporated, is, will be, and shall remain STR's exclusive property and proprietary information. Client shall not license or
sublicense, or in any way lay claim, in copyright or otherwise, to any of STR's data or information for any reason, nor shall
Client enable any third party to do any of the same. The parties agree that any and all data sets, information, and reports.
irrespective of form, prepared by STR and provided to Client are not and do not constitute works for hire under the
copyright laws. STR has the right to authorize and assign publication rights of the local market report data under this
Agreement to other subscribers of the local market report program. STR recognizes that upon provision of any reports to
Client, those documents become public records and are subject to Florida Statutes (F.S.), Chapter 119. Section
119.07(1 )(a), F.S. requires the TDC to permit such records to be inspected by any person desiring to do so, and to provide
a copy of said record upon payment of a duplication fee.
Client shall credit STR as the source of the data in each publication using local market report data with the following
notation:
SOURCE: COPYRIGHT 2000. SMITH TRAVEL RESEARCH,
ALL RIGHTS RESERVED
Such notation shall conspicuously appear immediately below or in conjunction with any and all graphs, charts, tables, etc.
derived by Client from STR's data, and all such graphs, charts, tables, etc. shall become the property of STR, because of
Client's derivation of STR's data. However, STR shall not be liable for, and shall be indemnified by Client from, any and
all liability due to Client's improper or inaccurate derivation of the STR data. Documents and reports which have been
produced on paper and have become public records in the Client's custody shall be retained by Client. The production
under Section 119.07, F.S. is for informational purposes only and not for commercial release. The County has no policy
allowing commercial use of the Client's public records other than those specifically developed for commercial use by the
Client.
Upon termination of this Agreement for any reason, or, with respect to any particular data, on such earlier date that such
data will be no longer required by Client in order to perform under this Agreement, such data will be either erased from the
data files maintained by Client or, if STR so elects, Client shall return the data to STR. Any such erasure of STR's data
will be verified and confirmed in writing by Client. Documents and reports which have been produced on paper and have
become public records in the Client's custody shall be retained by Client.
CLIENT'S USE OF THE STR DATA. Client is authorized to use STR data, results and/or the local market reports In the
ope.r:ation or its business. The initial Historical TREND data (if any) supplied by STR to Client is confidential and
proprietary information, and the Client shall not disclose the Historical TREND data to any person or entity not authorized
in writing to receive such information.
Client shall not make or report any projections regarding room rates, in its advertising or marketing efforts or in any of its
publications, that are based on the information presented in the local market report. Client expressly agrees and
understands that the data contained in any and all STR reports is of extraordinary value to STR. Furthermore, any and all
forecasts and/or projections provided by Client and included with any data belonging to STR shall be clearly and
conspicuously referenced as the projection or forecast of the Client and not STR so that all associated liability rests on
Client and not STR.
To the extent Client desires to disclose any of STR's data or confidential or proprietary information, for any purpose, to
anyone or any entity outside of Client's own internal business operations, Client agrees to protect the secrecy,
confidentiality, and proprietary nature of STR's data and information by: (i) first informing STR in writing of the identity of
the intended recipient of the disclosure, AND specifying the purpose of the disclosure, in order to provide STR with an
opportunity to refuse authorization of such intended disclosure; (ii) requiring the intended recipient to sign a suitable
confidentiality agreement between Client and the recipient protecting STR's data and information; and, (iii) delivering a
copy of the signed confidentiality agreement to STR.
Prior to using local market report data in its publications, advertising or marketing efforts, Client agrees to provide STR
with a copy of the proposed publication masthead, advertisement, or marketing plan to the extent STR believes necessary
to protect the integrity of STR's product. STR and Client further agree that STR has the right to amend or change the
masthead, advertisement, marketing plan or other materials to the extent STR believes necessary to give proper
attribution to STR, or to protect the integrity and secrecy of STR's data and information. If STR determines that its data,
results, and/or the local market report(s) have been misstated, misquoted, used in any manner as to be misleading, or in
any way reflect negatively upon STR's product, STR shall have the absolute right to revoke its authorization for client to
use such data, results, and/or the local market report.
DISCLAIMER. Client acknowledges the local market reports are generated from information received through
independent surveys and research from sources considered reliable in the hotel and motel industry. STR will use its best
efforts to insure the information contained in the local market reports are accurate and complete. STR TAKES NO
RESPONSIBILITY FOR THE ACCURACY AND VALIDITY OF THE RAW DATA PROVIDED TO STR FOR USE IN ITS
LOCAL MARKET REPORT(S). CLIENT AGREES THAT STR SHALL NOT BE LIABLE FOR DAMAGES INCLUDING
CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OF ITS DATA AND/OR THE LOCAL MARKET
REPORT(S). STR MAKES, AND CLIENT RECEIVES NO WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING THE PERFORMANCE OF DATA OR THE RESULTS THAT MAY BE OBTAINED USING THE DATA.
ACCORDINGLY, THE DATA IS LICENSED "AS IS" WITHOUT WARRANTY AS TO ITS PERFORMANCE,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND
PERFORMANCE OF THE DATA IS ASSUMED BY CLIENT.
LIMITATION OF STR LIABILITY. The parties further agree that in no event shall STR's .total liability relating to
STR's performance under this agreement, or any report or data provided to Client by STR, exceed the sums payable by
Client and received by STR, and in no event shall STR be liable for special, indirect, consequential, incidental, or
exemplary damages.
MODIFICATION. This Agreement represents the entire understanding between the parties and there are no
representations. agreements or understandings either oral or written, other than those set forth in this Agreement. Any
modification to this Agreement shall be in writing signed by both parties.
CHOICE OF LAW. This Agreement shall be construed under the laws of the State of Florida. The parties further
agree that the Court of Competent Jurisdiction be the United States District Court for the Southern District of Florida, or
Courts of the 16th Circuit of the State of Florida.
The parties to this agreement sign below, intending to create a legally binding, agreement.
INDEMNIFICA nON. Smith Travel Research covenants and agrees to indemnify and hold harmless Monroe County
Board of County Commissioners from any losses, damages, and expenses (including attorney's fees) which arise out of,
in connection with, or by reason of services provided by Smith Travel Research, occasioned by the negligence, errors. or
other wrongful act or omission of Smith Travel Research or its employees, or agents.
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 a contract to provide any goods or services to a public entity.
may not submit a bind on a contract 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, subcontractor, or consultant under a contract 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.
ETHICS CLAUSE. The FIRM warrants that no person has been employed or retained to solicit or secure this contract
upon an Agreement or understanding for a commission, percentage, brokerage, or contingent fee and that no member of
the Monroe County government or the TOC has any interest, financially or otherwise, in the FIRM or its subcontractors.
(SEAL)
Attest: Danny L. Kolhage, Clerk
Board of County Commissioners
of Monroe County
Deputy Clerk
Mayor/Chairman
WITNESS:
Smith Travel Research, Inc.
By.
By
President
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