Item D1 BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: JULY 15, 2009 Division: TDC
Bulk Item: Yes x No _ Department:
Staff Contact Person/Phone #:Maxine Pacini —296-1552
AGENDA ITEM WORDING:
Approval of an Agreement with Monroe Council of the Arts Corporation, d/b/a Florida Keys Council
of the Arts, to supplement costs of tourist related programs in an amount not to exceed$72,500
between October 1, 2009 and September 30, 2010.
ITEM BACKGROUND:
TDC approved same at their meeting of July 28, 2009
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $72,500 INDIRECT COST: N/A BUDGETED: Yes X No _
COST TO COUNTY: $72,500 SOURCE OF FUNDS: TDC
REVENUE PRODUCING: Yes X No AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing X Risk Management X
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM#
Revised 1/09
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Florida Keys Council of Contract # TDC #: 590
-
the Arts Effective Date: 10/1/09
Expiration Date: 9130/1 0
Contract Purpose/Description:
Approval of an Agreement with MOlioe Council of the Arts Corporation, d/bla Florida
Keys Council of the Arts, to supplement costs of tourist related programs in an amount
not to exceed $72,500 between October L 2009 and September 30, 2010.
Contract Manager: Maxine Pacini 3523 TDC # 3
(Name) (Ext. ) (Department/Stop #)
for BOCC meeting on 7 },$709 Agenda Deadline 6130ft)9
CONTRACT COSTS
/
Total Dollar Value of Contract: $ 72,500 Current Year Portion: $
Budgeted? YescgJ NoD Account Codes: 116-76007-530340- T-O~6-331-X-530340
Grant: $ 0
,
County Match: $
ADDITIONAL COSTS
Estimated Ongoing Costs: $ _/yr For:
(Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Changes Date Out
~ NeOOed ~
Division Director 5 % 'I YesO NoB , _ ~'
Risk Manag~ment 5:1.2:D7 YesO NoE(' -
~ ~]~ p ~ . 5-27-0)
O.M.B.lPurch sing _ YesDNog . ~17J
County Attorney 5~'1 YesD No~ C. Hall tZ- Cf~
Comments:
OMB Form Revised 2/27/01 Mep #2
AGREEMENT
THIS Agreement (Agreement) is entered Into this day of ,
2009 by and between MONROE COUNTY, Florida (County), and Monroe Council of
the Arts Corporation, d/b/a Florida Keys Council of the Arts (Provider),
WITNESSETH:
WHEREAS, Provider has requested funding to supplement costs of tourist
related programs; and
WHEREAS, County desires to fund tourist related programs; and
WHEREAS, the County finds that Provider is an appropriate tourist-related
program.
NOW THEREFORE, in consideration of the. mutual covenants contained
herein, the parties agree as follows:
1. TERM: The tenn of this contract is for a period of one year beginning
October 1, 2009 and expiring on September 30,2010.
2. SCOPE OF SERVICES: Provider shall provide the following services:
The administration. and promotion of cultural/arts tourist related programs, including
but not limited to: publishing and distribution for use by tourism industry of annual
calendar of cultural events; a gallery guide and the production of an events guide;
weekly cultural calendar infonnation provided to print media keys-wide; brochure of
locations/map of galleries/museums and other places of historic or cultural interest
for tourists; and the maintenance of culturaUarts infonnation services that include
Florida Keys Council of the Arts website (www.keysarts.com). Provider shall
maintain rotating displays of visual art at the Key West and Marathon airports and
several public buildings, including the historic Gato Cigar Factory County Complex,
as well as answering any inquiries from potential travelers or visitors looking for
cultural information.
3. COMPENSATION: For the services described in paragraph 2 above,
the County shall provide an amount not to exceed $72,500 per year for the period of
October 1, 2009 through September 30, 2010, subject to any adjustment for an
invoice as described in the last sentence of this paragraph. Payments will be in
eleven (11) installments of $6,040 and one (1) installment of $6,060. Last payment
contingent upon providing proof of the following items: An Arts Gallery Guide, an
3nnual C~lendar of events, 3n Events Guide, Brochure with map of locations of
museums & historic/Cultural site for tourists to visit, Web site for visitors. Monroe
County's performance and obligation to pay under this agreement is contingent upon
Florida Keys Council of the Arts Agreement l
FY 20 l 0
ID# 590
an 3nnu31 appropriation by the SOCC. SaId payment shall occur in compliance with
the Local Government Prompt Payment Act upon the TDC Adm1nistrative Office
receiving an invoice as outlined in Exhibit A. Included with the invoice shall be a
statement verifying and certifying that the requirements and duties set forth within
this agreement have been fully performed for the month for which the invoice is
being submitted and that payment for the services have not been duplicated within
other grant contracts with the BOCC, State of Florida Division of Cultural Affairs or
the National Endowment of the Arts.
4. RECORDS - ACCESS AND AUDITS: The Provider shall maintain all
books, record s, and documents directly pertinent to performance under this
Agreement in accordance with generally accepted accounting principles consistently
applied. The records to justify all charges, expenses and costs incurred in
performing the work shall be maintained by the Provider for at least four (4) years
after completion of this contract. The County shall have reasonable and timely
access to such books, records, and documents concerning the contracted services.
If an auditor employed by the County or Clerk determines that monies paid to
Provider pursuant to this Agreement were spent for purposes not authorized by this
Agreement. the Provider shall repay the monies together with interest calculated
pursuant to Sec. 55.03, FS, running from the date the monies were paid to Provider.
(a) PUBLIC ACCESS. The County and Provider shall allow and permit
reasonable access to, and inspection of, all documents, papers, letters or other
materials in its possession or under its control subject to the provisions of Chapter
119, Florida Statutes, and made or received by the County and Provider in
conjunction with this Agreement; and the County shall have the right to unilaterally
cancel this Agreement upon violation of this provision by Provider.
5. INDEPENDENT CONTRACTOR RELATIONSHIP: The Provider is
and shall be, in the performance of all works, services, and activities under this
contract, an independent contractor and not an employee, agent or servant of the
County. The Provider shall exercise control, direction, and supervision over the
means and manner and personnel in which it and its employees perform the work.
In all respects, the Provider's relationship and the relationship of its employees to the
County shall be that of an independent contractor and not as employees or agents of
the County. Moreover, the Provider shall have no authority whatsoever to act on
behalf and/or as agent for the County in any promise, contract, or representation
other than specifically provided for in this contract. The County shall at no time be
legally responsible for any negligence on the part of said Provider, its employees or
agents, resulting in either bodily or personal injury or property damage to any
individual, form, or corporation.
6 ". MODIFICA nON: Additions to, modification to, or deletions from the
. . Scope of Work and/or costs of work set forth in this contract may be made only by
Florida Keys Council of the Arts Agreement 2
FY 2010
fl)# ~()(}
amendment to this contract V'vhich must be approved in writing by the County. No
modification shall become effective without written approval of County.
7. BREACH AND PENAL TIES: The parties agree to full performance of
the covenants contained in this contract, and the County reserves the right at its
discretion, provided any breach is material, to terminate the services in this contract
for any misfeasance, malfeasance or nonperformance of the contract terms or
negligent performance of the contract terms by Provider. Any waiver of any breach
of covenants herein contained shall not be deemed to be a continuing waiver and
shall not operate to bar the County from declaring a forfeiture for any succeeding
breach either of the same conditions or covenants or otherwise.
8. INDEMNIFICATION AND HOLD HARMLESS: The Provider shall
indemnify and hold harmless the County, its departments, agencies, officials,
employees, agents, servants and contractors, against any claims, liabilities and
expenses (including reasonable attorney's fees) arising as a result of any direct
and/or indirect action of Provider, its employees, agents, servants and/or contractors
in the performance of the terms of this contract or otherwise related to activity
conducted in the furtherance of this contract. Provider shall immediately give notice
to County of any suit, claim or action made against Provider that is related to any
activity under this contract and will cooperate with the County in the investigation
arising as a result of any suit, claim or action related to this Agreement. The first
$10.00 of compensation shall be consideration for this indemnification. This
provision shall survive .the termination of this Agreement.
9. LAWS AND REGULATIONS: It shall be understood and agreed that
any and all services, materials and equipment shall comply fully with all Local, State
and Federal laws and regulations.
10. TAXES: The County is exempt from Federal, Excise and State of
Florida Sales Tax.
11. FINANCE CHARGES: The County will not be responsible for any
finance charges.
12. SEVERABILITY: If any term, covenant, condition or provision of this
contract shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining terms, covenants, conditions and provisions of this
contract, or the application of such provision other than those as to which it is invalid
or unenforceable, shall not be affected thereby; and each remaining term, covenant,
condition and provision of this contract shall be valid and enforceable to the fullest
extent permitted by law unless the enforcement of the remaining terms, covenants,
condition$- and provisions of this Agreement would prevent the accomplishment of
the original intent of this Agreement. The County and Provider agree to reform the
Florida Keys Council 0 r the Arts Agreement 3
FY 20 I 0
IOJi '::;Oll
Agreement to replace any str:cken provision with a valid provision that comes as
close as possible to the intent of the stricken provision.
13. FORCE MAJEURE: The Provider shall not be liable for delay in
performance or failure to perform in whole or in part, the services due to the
occurrence of any contingency beyond its control or the control of any of its sub-
Providers or suppliers, including labor dispute, strike, labor shortage, war or act or
war whether an actual declaration thereof if made or not, insurrection, sabotage, riot
or civil commotion, act of public enemy, epidemic, quarantine restriction, accident,
fire, explosion, storm, flood, drought, or other act of God, act of any governmental
authority, jurisdictional action, or insufficient supply of fuel, electricity, or materials or
supplies, or technical failure where the Provider has exercised reasonable care in
the prevention thereof, and any such delay or failure shall not constitute a breach of
the contract. The Provider shall notify the TOC of any delay or failure to perform
within five (5) days of such action. Upon demand of TDC, the Provider must furnish
evidence of the causes of such delay or failure. The Provider shall not resume its
performance hereunder unless provided for in the Scope of Services.
14. ASSIGNMENT: Provider shall not assign, transfer, sublease, pledge,
hypothecate, surrender, or othelWise encumber of dispose of this contract or any
estate created by this contract or any interest in any portion of the same, or permit
any other person or persons, company or corporation to perform services under this
contract without first obtaining the written consent of the COl;lnty. In the event of
such consent, this contract shall be binding upon the Provider's successors and
assigns.
15. DISCLOSURE: The Provider shall be required to list any or all
potential conflicts of interest, as defined by Florida Statute 112 and Monroe County
Ethics Ordinances. The Provider shall disclose to the County all actual or proposed
conflicts of interest, financial or othelWise, direct or indirect, involving any client's
interest which may conflict with the interest of the County.
16. ADDITIONAL CONDITIONS: Provider agrees to accept additional
conditions governing the use of funds or performance of work as may be required by
federal, state or local statute, ordinance or regulation or by other policy adopted by
County. Such additional conditions shall not become effective until Provider has
been notified in writing and no such additional conditions shall be imposed
retroactively.
17. INDEPENDENT PROFESSIONAL JUDGEMENT: Provider shall at all
times exercise independent professional judgment and shall assume full
responsibility for the service to be provided and work to be completed.
18. CARE OF PROPERTY: The Provider shall be responsible to the
County for the safekeeping and proper use of the property entrusted to Provider's
Florida Keys Council of lhe Arts Agreement 4
FY 2010
I n# "QU
care, to include any and all insurance for the value of the equiprl'ent and any
fT13intenailce or service contracts relating to such equipment for its service life.
19. ETHICS CLAUSE: The Provider 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, County agrees that officers
and employees of the County recognize and will be required to comply with the
standards of conduct for public officers and employees as delineated in Section
112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of
gifts; doing business with one's agency; unauthorized compensation; misuse of
public position, conflicting employment or contractual relationship; and disclosure or
use of certain information.
The Provider warrants that it has not employed, retained or otherwise had act
on his/its behalf any former County officer or employee in violation of Section 2 of
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 this provision the County may, in
its discretion, terminate this contract without liability and may also, in its discretion,
deduct from the contract or purchase price, or otherwise recover, the full amount of
any fee, commission, percentage, gift, or consideration paid to the former County
officer or employee.
20. COVENANT OF NO INTEREST. County and Provider covenant that
neither presently has any interest, and shall not acquire any interest, which would
conflict in any manner or degree with its performance under this Agreement, and
that only interest of each is to perform and receive benefits as recited in this
Agreement.
21. NO SOLICITATION/PAYMENT. The County and Provider warrant
that, in respect to itself, it has neither employed nor retained any company or
person, other than a bona fide employee working solely for it, to solicit or secure
this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual, or firm, other than a bona fide employee working solely for it,
any fee, commission, percentage, gift, or other consideration contingent upon or
resulting from the award or making of this Agreement. For the breach or violation of
the provision, the Provider agrees that the County shall have the right to terminate
this Agreement without liability and, at its discretion, to offset from monies owed, or
otherwise recover, the full amount of such fee, commission, percentage, gift, or
consideration.
22. NOTICE: Any notice required or permitted under this contract shall be
in writing:.and hand-delivered or mailed, postage prepaid by certified mail, return
receipt requested, to the other party as follows:
Florida Keys Council of the Alis Agreement 5
FY 20 to
ID# 590
For Provider: President, Florida Keys Council of the Arts
1100 Simonton Street
Room 2-263
Key West, FL 33040
For Monroe County TOC: Ms. Lynda Stuart
1201 'vVhite Street
Suite 102
Key West, FL 33040
For County: County Attorney
P.O. Box 1026,
Key West, FL 33041-1026
County shall give notice to Provider of any meetings on which is an agenda item
pertaining to Providers contract. Said notice shall be given so that Provider has
ample time to make travel arrangements for an Executive Board member to attend
the meeting.
23. TERMINATION: Either party shall have the right to cancel this
contract at its sole discretion with or without cause upon sixty (60) days prior written
notice to the other party. Provider shall deliver to the County all papers, equipment
and other material related to the work perfonned under this contract upon
tennination thereof.
24. 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 perfonn 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.
25. APPROVALS AND CHANGES OF SPECIFICATIONS OF SERVICES:
The TOC shall have the sole and exclusive right to approve, modify, reject, or cancel
any and all plans, proposals, submissions and other work in process, in which event
the TOC's directions shall be immediately implemented. However, nothing in this
contract. shall be construed as requiring the Provider to violate any contractual
commitments to vendors contracted on TOC's behalf. All contractual commitments
to contracted vendors require the TOe's prior written approval. The County shall
Florida Keys Council of the Arts Agreement 6
FY 2010
r 0# 590
only be liable for charges approved in wr:ting prior to the Provider's entering into
such contractual commitment.
The performance of all services between Provider as described and otllerwise
provided under this contract will be in full cooperation with and under the direct
supervision of the TDC. Whenever approval is required from the TDC, said approval
shall be in writing from the TDC Administrative Director or a designee, according to
TDC policy.
26. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND
FEES: This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida applicable to contracts made and to be performed
entirely in the State. In the event that any cause of action or administrative
proceeding is instituted for the enforcement or interpretation of this Agreement, the
County and Provider agree that venue shall lie in the appropriate court or before the
appropriate administrative body in the 16th Judicial Circuit in and for Monroe County,
Florida.
27. ATTORNEY'S FEES AND COSTS: The County and Provider agree that
in the event any cause of action or administrative proceeding is initiated or defended
by any party relative to the enforcement or interpretation of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, court costs,
investigative, and out-of-pocket expenses, as an award against the non-prevailing
party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket
expenses in appellate proceedings. Mediation proceedings in"itiated and conducted
pursuant to this Agreement shall be in accordance with the Florida Rules of Civil
Procedure and usual and customary procedures required by the circuit court of
Monroe County.
28. ADJUDICATION OF DISPUTES OR DISAGREEMENTS. County and
Provider agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between representatives of each of the
parties. If the issue or issues are still not resolved to the satisfaction of the parties,
then any party shall have the right to seek such relief or remedy as may be provided
by this Agreement or by Florida law. This agreement is not subject to arbitration.
29. COOPERA TION. In the event any administrative or legal proceeding is
instituted against either party relating to the formation, execution, performance, or
breach of this Agreement, County and Provider agree to participate, to the extent
required by the other party, in all proceedings, hearings, processes, meetings, and
other activities related to the substance of this Agreement or provision of the
services under this Agreement. County and Provider specifically agree that no party
to this Agreement shall be required to enter into any arbitration proceedings related
to this Agreement.
Florida Keys Council of the Arts Agreement 7
FY 2010
IDff 590
30. BINDING EFFECT. The terms, covenants, conditions, and provisions
of this Agreement shall bind and inure to the benefit of the County and Provider and
their respective legal representatives, successors, and assigns,
31. AUTHORITY. Each party represents and warrants to the other that the
execution, delivery and performance of this Agreement have been duly authorized
by all necessary County and corporate action, as required by law.
32. NONDISCRIMINATION. County and Provider agree that there will be
no discrimination against any person, and it is expressly understood that upon a
determination by a court of competent jurisdiction that discrimination has occurred,
this Agreement automatically terminates without any further action on the part of any
party, effective the date of the court order. County or Provider agree to comply with
all Federal and Florida statutes, and all local ordinances, as applicable, relating to
nondiscrimination. These include but are not limited to: 1) Title VII of the Civil
Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race,
color or national origin; 2) Title IX of the Education Amendment of 1972, as
amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on
the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20
USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age
Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits
discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of
1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug
abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment
and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health
Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as
amended, relating to confidentiality of alcohol and drug abuse patent records; 8)
Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to
nondiscrimination in the sale, rental or financing of housing; 9) The Americans with
Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to
time, relating to nondiscrimination on the basis of disability; 10) Any other
nondiscrimination provisions in any Federal or state statutes which may apply to the
parties to, or the subject matter of, this Agreement.
33. NON-RELIANCE BY NON-PARTIES. No person or entity shall be
entitled to rely upon the terms, or any of them, of this Agreement to enforce or
attempt to enforce any third-party claim or entitlement to or benefit of any service or
program contemplated hereunder, and the County and the Provider agree that
neither the County nor the Provider or any agent, officer, or employee of either shall
have the authority to inform, counsel, or otherwise indicate that any particular
individual or group of individuals, entity or entities, have entitlements or benefits
under this. Agreement separate and apart, inferior to, or superior to the community in
general or for the purposes contemplated in this Agreement.
f10rida Keys Council of the Arts Agreement 8
FY 2010
ID# 590
34. ATTESTATIONS. Provider agrees to execute such documents as the
County may reasonably require, to include a Public Entity Crime Statement, 3n
Ethics Statement, and a Drug-Free Workplace Statement.
35. OWNERSHIP: All work performed under the contract shall be the
property of the TOC and County, for whatever use and/or dispositIon the TDC and
County may deem appropriate. Such property shall include: a) all plans, documents
and recommendations; b) All manuscripts, copy, graphics, and videotapes. The
TOC and County shall have the full right to reproduce and/or use any products
derived from the Provider's work under the contract without payment of any royalties,
or fees.
36. FULL CONTRACT: This writing embodies the entire contract and
understanding between the parties hereto, and there are not other
contracts/agreements and understandings, oral or written, with reference to the
subject matter hereof that are not merged herein and superseded hereby. In order
to be effective, any amendment and/or change to this contract shall be in writing
recommended by the TOC and approved by the County and signed by both parties.
37. SECTION HEADINGS; Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that such
section headings are not a part of this Agreement and will not be used in the
interpretation of any provision of this Agreement.
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Florida Keys Council of the Alis Agreement I)
FY 2010
1D# 590
38. CONSTRUCTION: This contract has been carefully reviewed by legal
counsel for beth parties. Therefore. this contract shall not be strictly construed
against either party on the basis of authorship.
(SEAL) Board of County Commissioners
Attest: Oanny L. Kolhage, Clerk of Monroe County
Oeputy Clerk Mayor/Chairman
(CORPORATE SEAL) Florida Keys Council of the Arts
Attest:
By.
Secretary
Print Name
OR
(1) Witness
Print Name
MONROE COUNTY ATTORNEY
(2) Witness ApPROVED AS TO FORM:
,
I r " . .
Print Name . CYNTHIA L. HALL
ASSISTANT COUNTY ATTORNEY
"
Date -
Florida Keys Council of thc Arts Agrcement 10
FY 20 I 0
rD# 590
Exhibit A
INVOICE
The administration and promotion of cultural/arts tourist related programs, including
but not limited to: publishing and distribution for use by tourism industry of annual
calendar of cultural events; a gallery guide; An events guide; weekly cultural
calendar information provided to print media keys-wide; brochure of locations/map of
galleries/museums and other places of historic or cultural interest for tourists.
Maintain cultural/arts information services that include Florida Keys Council of the
Arts website (www.keysarts.com). Answering any inquiries from potential travelers
or visitors looking for cultural information.
Florida Keys Council of the Arts
The Florida Keys Council of the Arts certified that all services and provisions
specified within the agreement have been met for the month of ,
200
The Florida Keys Council of the Arts requests payment of $6,040 for 11 months and
$6,060 for one month made payable to the Florida Keys Council of the Arts.
Onlv for the Invoice dated September 1 - 30. 2010 the following documents must be attached
before final payment can be considered:
- Arts Gallery Guide
- Annual Calendar of Events
- Events Guide
- Brochure with map of locations of museums & historic/Cultural site for tourists to visit
- Web site for Visitors
Signature Date
Sworn to and subscribed for me this day of ,200_
Notary Public
Personally known _ or produced identification _
Type of identification produced
............................................................................
Monroe County Tourist Development Council Date
Administrative Office
Florida Keys Council ofthc Arts Agreement II
FY 2010
10# 590