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FY2010-FY2012 08/19/2009 DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: August 24, 2009 TO: Lynda Stuart, Office Manager Tourist Development Council A TTN: FROM: Maxine Pacini Administrative Ass~~ Pamela G. Hanc~~. At the August 19, 2009, Board of County Commissioners meeting the Board granted approval and authorized execution of the following: 1 st Amendment to Agreement between Monroe County and the Lower Keys Chamber of Commerce, Inc. covering the Big Pine and Lower Keys Island Art Festival to revise date of event to December 5,2009. Contract between Monroe County and The Ameurop Group, Inc. who is the only entity that provides multilingual tourist assistance for 24 hours; 7 days a week; 365 days a year. The Ameurop Group, Inc. provides live assistance through to 1-800-771-KEYS and provides a monthly detailed report. Agreement between Monroe County and Keys Association of Dive Operators, Inc. to act as a County Wide Dive Umbrella. ~greement between Monroe County and Florida Keys Fishing Tournaments, Inc. to act as a County Wide Fishing Umbrella. Enclosed are two duplicate originals of the above-mentioned for your handling. Item D3 is being returned to you as the automobile insurance expired August 23, 2009: 1st Amendment to extend the Agreement between Monroe County and 3406 North Roosevelt Boulevard Corporation d/b/a Visit Florida Keys for the provision of services for operating an executive office for tourism promotion by Monroe County Code Sections 2-299. Item D6 is being returned to you as there has been no insurance since 2004: Agreement between Monroe County and Key West Business Guild, Inc. for Visitor Information Services which promote gay and lesbian tourism for Key West. It should be noted that this contract has not had insurance since 2004. Should you have any questions please feel free to contact our office. cc: County Attorney Financ~ File ./ FISHING UMBRELLA AGREEMENT JI THIS AGREEMENT ("Agreement"), made and entered into this Ir~day of tlapd; 2009, A.D., by and between MONROE COUNTY, FLORIDA, (hereinafter sometimes called the "Owner"), and Florida Keys Fishing Tournaments, Inc., (hereinafter called the "Contractor"). WHEREAS, the County wishes to enter into this agreement with Florida Keys Fishing Tournaments, Inc., so that Florida Keys Fishing Tournaments, Inc. will act as a County wide Fishing Umbrella to make recommendations to the Tourist Development Council ("TDC") and the Monroe County Board of County Commissioners ("BOCC") concerning funding for tourism related fishing activities, NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties agree as follows: That the parties hereto, for the consideration hereinafter set forth, mutually agree as follow: 1. THE CONTRACT The contract between the Owner and the Contractor, of which this Agreement is a part, consists of the contract documents, which are as follows: This Agreement and any amendments executed by the parties hereafter, together with the response to Request for Proposals (RFP) and all required insurance documentation. In the event of a discrepancy between the documents, precedence shall be determined by the order of the documents as just listed. 2. SCOPE OF THE WORK The Contractor shall provide Fishing Umbrella services for the County as described below: Contractor shall establish an annual recommended line item breakdown of a budgetary allocation provided by the Monroe County Tourist Oevelopment Council (TOC) to include, but not be limited to the followi ng: 1. Contractor shall recommend a minimum of thirty percent (300/0) of the Fishing Umbrella budget to national media advertising and public relations. 2. Contractor shall make recommendations to the TOC by those members who sit on the Fishing Umbrella Recommendation Committee. There shall be five (5) members, one each representing the five TOC districts. Recommended appointments will be approved by the TOC. Any subsequent changes to the Recommendation Committee shall be provided in writing to the TOC Administrative Office for approval by the TOC. 3. Contractor shall seek approval by the TOC of the Fishing Umbrella application that conforms with all TOC policies and procedures. 4. Contractor shall advertise the availability of the Fishing Umbrella program through which event coordinators may apply for promotional funding. The advertisement shall be placed at a minimum, in a newspaper of general circulation, in each of the three primary areas of the county, to wit: Lower Keys, Middle Keys and Upper Keys. The advertisement shall give notice of the availability of funding, the restriction of such funding to promotional expenditures, and any other information which the Contractor deems necessary to conduct the Fishing Umbrella program. The Contractor may place the advertisements and be reimbursed pursuant to paragraph 3, or may request the TOC to place the advertisements and pay the newspapers directly by providing details in writing. Florida Keys Fishing Tournament Fishing Umbrella Agreement ID#: 638 5. Contractor shall conduct at least one (1) educational workshop(s) each year within two (2) weeks after the release of the request for application, to explain the application process and TOC procedures and permissible expenditures to all potential applicants. 6. Contractor shall make recommendations to the TOC for the equitable district-wide percentage distribution of Fishing Umbrella funding allocations for all qualified events/activities on an annual basis. 7. Contractor shall review with each fishing event applicant the permissible expenditures of advertising and promotional within the budget and submit to appropriate agency of record for approval. 8. Contractor shall notify TOC Administrative Office in writing, regarding the Contractor's approval of any deviations from approved contracts including events dates and tournament name. 9. Contractor shall assist fishing event coordinators with reimbursement or direct payment to vendor requests ensuring that all documentation comply with permissible expenditures and is provided to the Monroe County Finance Department. 10. Contractor shall provide a schedule of Fishing Umbrella meeting dates, to include start time and venue, to the TOC Administrative Office on an annual basis, providing the TOC Administrative Office with the information required to place all public notices announcing Fishing Umbrella meetings under the same rules as required by all governmental meetings under F.S. 286.11. If a meeting has been duly publicly noticed and subsequently cancelled, Contractor shall notify the media by public service announcements (PSA's) or place the appropriate advertisement in the media. 11. Contractor shall provide the TOC Administrative Office a copy of the agenda and all attachments seven (7) working days prior to a regularly scheduled meeting. 12. Contractor may establish a county-wide photo program to be distributed to national trade and consumer publications. Photos to be provided by the Contractor to the public relations agency of record. Photos to represent award winners and media attractive fishing photos. 13. Contractor may solicit sponsorships other than advertising media to offset Contractor's administrative and operational costs. Contractor shall not receive any administration compensation, directly or indirectly, out of the TOC Fishing Umbrella funds. 14. Upon the request of the TOC, Contractor shall be required to provide a representative at a public meeting to address Fishing Umbrella issues and/or make a presentation. The Contractor warrants that it is authorized by law to engage in the performance of the activities herein described, subject to the terms and conditions set forth in these contract documents. The provider shall at all times exercise independent, professional judgment and shall assume professional responsibility for the services to be provided. Contractor shall provide services using the following standards, as a minimum requirement: I. The Contractor shall maintain adequate staffing levels to provide the services required under the contract resulting from this RFP process. II. The personnel shall not be employees of or have any contractual relationship with the County. To the extent that Contractor uses subcontractors or independent contractors, this contract specifically requires that the level of independence normally exercised by such subcontractors and independent contractors be curtailed and that they be supervised by the Contractor. Florida Keys Fishing Tournament Fishing Umbrella Agreement ID#: 638 2 III. All personnel engaged in performing services under this contract shall be fully qualified, and, if required, to be authorized or permitted under State and local law to perform such services. 3. PAYMENTS The contractor is responsible to assist event sponsors in submitting invoices and support documentation acceptable to the County's Finance Department for reimbursement. 4. TERM OF CONTRACT The term of the contract is for three years, commencing on the 1 st day of October, 2009, and ending on the 30th day of September, 2012, with an option to extend for one additional two (2) year period. 5. CONTRACTOR'S ACCEPTANCE OF CONDITIONS A. The Contractor hereby agrees to carefully examine the specifications for which the Contractor shall provide services and assumes full responsibility therefore. The provisions of the Contract shall control any inconsistent provisions contained in the specifications. Under no circumstances, conditions, or situations shall this Contract be more strongly construed against the County than against the Contractor. B. Any ambiguity or uncertainty in the specifications shall be interpreted and construed by the County, and the County's decision shall be final and binding upon all parties. C. The passing, approval, and/or acceptance by the County of any of the services furnished by the Contractor shall not operate as a waiver by the County of strict compliance with the terms of this Contract, and specifications covering the services. Failure on the part of the Contractor, immediately after Notice to Correct shall entitle the County, if it sees fit, to correct the same and recover the reasonable cost of such replacement and/or repair from the Contractor, who in any event shall be jointly and severally liable to the County for all damage, loss, and expense caused to the County by reason of the Contractor's breach of this Contract and/or his failure to comply strictly and in all things with this Contract and with the specifications. D. The Contractor agrees that the TDC may designate representatives to visit the Contractor's facility(ies) periodically to conduct random open file evaluations during the Contractor's normal business hours. E. The Contractor warrants that it has, and shall maintain throughout the term of this contract, appropriate licenses and approvals required to conduct its business, and that it will at all times conduct its business activities in a reputable manner. Proof of such licenses and approvals shall be submitted to the County upon request. 6. CONTRACTOR'S FINANCIAL RECORDS Contractor shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. If an auditor employed by the County or Clerk determines that monies paid to Florida Keys Fishing Tournament 3 Fishing Umbrella Agreement ID#: 638 Contractor pursuant to this Agreement were spent for purposes not authorized by this Agreement, the Contractor shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to Contractor. 7. PUBLIC ACCESS The County and Contractor 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 Contractor in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by Contractor. 8. HOLD HARMLESS The Contractor covenants and agrees to indemnify and hold harmless Monroe County Board of County Commissioners and the TDC from any and all claims for bodily injury (including death), personal injury, and property damage (including property owned by Monroe County) and any other losses, damages, and expenses (including attorney's fees) which arise out of, in connection with, or by reason of services provided by the Contractor or any of its Subcontractor(s) in any tier, occasioned by the negligence, errors, or other wrongful act of omission of the Contractor or its Subcontractors in any tier, their employees, or agents. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this Agreement. 9. INDEPENDENT CONTRACTOR At all times and for all purposes under this Agreement the Contractor is an independent contractor and not an employee of the Board of County Commissioners of Monroe County. No statement contained in this Agreement shall be construed so as to find the Contractor or any of his employees, contractors, servants, or agents to be employees of the Board of County Commissioners of Monroe County. 10. NONDISCRIMINATION The parties 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. The parties 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 prohibit discrimination in employment on the basis of race, color, religion, sex, and national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC 99 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 9 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC 99 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 Florida Keys Fishing Tournament 4 Fishing Umbrella Agreement ID#: 638 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, 99 523 and 527 (42 USC 99 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 99 3601 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 99 1201), as amended from time to time, relating to nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter 13, Article VI, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11) any other nondiscrimination provisions in any federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. 11. ASSIGNMENT/SUBCONTRACT The Contractor shall not assign or subcontract its obligations under this Agreement, except in writing and with the prior written approval of the Board of County Commissioners of Monroe County and Contractor, which approval shall be subject to such conditions and provisions as the Board may deem necessary. This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or subcontractor shall comply with all of the provisions of this Agreement. 12. COMPLIANCE WITH LAW In providing all services/goods pursuant to this Agreement, the Contractor shall abide by all statutes, ordinances, rules and regulations pertaining to, or regulating the provisions of, such services, including those now in effect and hereinafter adopted. Any violation of said statutes, ordinances, rules and regulations shall constitute a material breach of this Agreement and shall entitle the Board to terminate this contract immediately upon delivery of written notice of termination to the contractor. The contractor shall possess proper licenses to perform work in accordance with these specifications throughout the term of this contract. 13. DISCLOSURE AND CONFLICT OF INTEREST The Contractor represents that it, its directors, principles and employees, presently have no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required by this contract, as provided in Sect. 112.311, et seq., Florida Statutes. 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. Upon execution of this contract, and thereafter as changes may require, the Contractor shall notify the County of any financial interest it may have in any and all programs in Monroe County which the Contractor sponsors, endorses, recommends, supervises, or requires for counseling, assistance, evaluation, or treatment. This provision shall apply whether or not such program is required by statute, as a condition of probation, or is provided on a voluntary basis. Florida Keys Fishing Tournament 5 Fishing Umbrella Agreement ID#: 638 The County and Contractor 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 Contractor 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. 14. ARREARS The Contractor shall not pledge the County's credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. The Contractor further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this contract. 15. NOTICE REQUIREMENT Any notice required or permitted under this Agreement shall be in writing and hand delivered or mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the following: FOR TDC: Lynda Stuart 1201 White St. Suite 102 Key West, FL 33040 FOR CONTRACTOR: Capt. Jim Sharpe 24386 Overseas Hwy Summerland Key, FL 33042 FOR COUNTY: and County Attorney PO Box 1 026 Key West, FI. 33041-1026 16. TAXES The County is exempt from payment of Florida State Sales and Use taxes. The Contractor shall not be exempted by virtue of the County's exemption from paying sales tax to its suppliers for materials used to fulfill its obligations under this contract, nor is the Contractor authorized to use the County's Tax Exemption Number in securing such materials. The Contractor shall be responsible for any and all taxes, or payments of withholding, related to services rendered under this Agreement. Florida Keys Fishing Tournament Fishing Umbrella Agreement ID#: 638 6 17. TERMINATION A. The County may terminate this contract for cause with seven (7) days notice to the Contractor. Cause shall constitute a breach of the obligations of the Contractor to perform the services enumerated as the Contractor's obligations under this contract. B. Either of the parties hereto may terminate this contract without cause by giving the other party sixty (60) days written notice of its intention to do so. 18. GOVERNING LAW, VENUE, INTERPRETATION, COSTS AND FEES A. 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. B. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and Contractor agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. C. The County and Contractor agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. D. Severability. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The County and Contractor agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. E. Attorney's Fees and Costs. The County and Contractor 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 initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. F. Adjudication of Disputes or Disagreements. County and Contractor 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. Florida Keys Fishing Tournament 7 Fishing Umbrella Agreement ID#: 638 G. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, County and Contractor 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 Contractor specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 19. BINDING EFFECT The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Contractor and their respective legal representatives, successors, and assigns. 20. 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. 21. CLAIMS FOR FEDERAL OR STATE AID Contractor and County agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 22. PRIVILEGES AND IMMUNITIES All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 23. LEGAL OBLIGATIONS AND RESPONSIBILITIES Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating Contractor from any obligation or responsibility imposed upon the Contractor by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida constitution, state statute, and case law. Florida Keys Fishing Tournament Fishing Umbrella Agreement ID#: 638 8 24. NON-RELIANCE BY NON-PARTIES No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and the County and the Contractor agree that neither the County nor the Contractor 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. 25. ATTESTATIONS Contractor agrees to execute such documents as the County may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free Workplace Statement. 26. NO PERSONAL LIABILITY No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 27. EXECUTION IN COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. 28. 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. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Florida Keys Fishing Tournament Fishing Umbrella Agreement ID#: 638 9 , . IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and date first written above in four (4) counterparts, each of which shall, without proof or accounting for the other counterparts, be deemed an original contract. (SEAL) Attest: Danny L. Kolhage,jClerk u:.. .~~ Deputy Clerk Board of County Commissioners of Monroe County ~"..I!. )f)oI.A4.'~ Mayor/Chairman (CORPORATE SEAL) Attest Florida Keys Fishing Tournaments, Inc. By Secretary "- By J1 /Y) ~ident '" )tw) Print Name ~~ S h ll--lC:jle..-- Print Name Date: 7- zZ --01 Date: OR TWO WITNESSES (1 ) (2) (1 ) Print Name (2) Print Name Date: "':lr c;t.l~~ ;'::P'" \) };;,. ~ _ :.:-? r- ~ .- r- ~- ,J Iq .m" ,.~ c::::: ,." I .) :::0 --<( Q"') t::) \) .:~.~ j- '" .,., ;/3~ii : ~ :-(g~ ~ ~ -- ("') C) .. <::) f"l1 ~ ~ Date: 4 Florida Keys Fishing Tournament Fishing Umbrella Agreement ID#: 638 10 . Y H A. 'L ASSIS ANTr;.O~'1TY ~~TOANEY Date - - 0