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FY2017 10/19/2016AMY HEAVILIN, CPA CLERK OF CIRCUIT COURT & COMPTROLLER IVIONROE FLORIDA DATE: November 4, 2016 TO: Maxine Pacini, Office Manager Tourist Development Council ATTN: Amy Machan Administrative Assistant FROM.- Cheryl Robertson Executive Aide to the Clerk of Court & Comptroller UL At the October 19, 2016 Board of County Commissioner's meeting the Board granted approval and authorized execution of Item D12 Approval of Cultural Umbrella Event Agreements for FY 2017 as per attached spreadsheet totaling $733,943. CC: County Attorney (Electronic Copy) Finance (Electronic Copy) File (Electronic Copy) 500 Whitehead Street Suite 101, PO Box 1980, Key West FL 33040 Phone: 305- 295 -3130 Fax: 305- 295 -3663 3117 Overseas Highway, Marathon, FL 33050 Phone: 305- 289 -6027 Fax: 305- 289 -6025 88820 Overseas Highway, Plantation Key, FL 33070 Phone: 852 -7145 Fax: 305 - 852 -7146 CULTURAL EVENT FUNDING AGREEMENT THIS Agreement is made and entered into by and between Monroe County, Florida, a political TWA ivision of the S to of Florida (County), and South Florida Symphony Orchestra, Inc. on this day of , 2016. WHEREAS, Florida Keys Council of the Arts, the Umbrella organization under contract to the County has recommended to the Monroe County Tourist Development Council (TDC), which has endorsed the recommendation, that certain monies be allocated for promotion of an event by Event Contractor; and WHEREAS, the Umbrella organization recommends allocation of funds for the South Florida Symphony Orchestra on November 2016 - July 2017. NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. Amount County shall pay a sum not to exceed $22,443 (Twenty -two thousand four hundred forty-three Dollars — TDC District DAC I Funding Allocation) effective October 1, 2016 for promotion and related expenditures, as described in the event budget, attached hereto as Exhibit D for production of the Event Of this amount, no more than 30% or $5,833 shall be expended on advertising media placement and production costs line item attributable to in- county placement. No amendments shall be made to the Budget as set forth in Exhibit D after approval of agreement. Payment will be made only after Event Contractor submits invoices and support documentation acceptable to the County's Finance Department. The advertising and promotion budget using county funding may be altered as to the individual line items, or components, within 10% of the amount stated for that item or component, without increasing the total dollar amount and without requiring a written amendment to this agreement. The general non - allocated section of an Umbrella event budget shall not exceed 15% of the total budget and may be utilized for unforeseen permissible expenditures and for those budget lines that may require additional funds. Monroe County's performance and obligation to pay under this agreement is contingent upon an annual appropriation by the Board of County Commissioners. 2. Duties of Event Contractor Event Contractor shall provide promotion and related services as described in the Schedule of Events, Exhibit C, attached hereto. All advertising and public relations services or supervision of advertising and public relations will be provided through the contracted agencies of the TDC and County. 3. Invoicing Event Contractor agrees to submit all invoices and support documentation as required by the County's Finance Department rules and policies no later than September 29, 2017 unless the date of the event is amended upon written approval of the Cultural Umbrella and TDC Director. Event Contractor shall not be reimbursed nor will Event Contractor's vendors be paid directly for any invoices received by the County after September 29, 2017 unless the date of the event is amended upon written approval of the Cultural Umbrella and TDC Director, and the County shall not be obligated to pay for any services provided by Event Contractor under this agreement if documentation as noted above is not received on or before this reimbursement deadline date. To be eligible for reimbursement, the request for reimbursement and supporting documents (checks, Event Name: South Florida Symphony Orchestra Cultural Umbrella Funding FY 2017 Contract ID #: 1751 invoices, credit card statements, bank statements, etc.) must show that the items were paid for directly by the same entity named on the agreement with the County. For clarification on reimbursements, please refer to the reimbursement packet provided to you upon execution of your funding agreement. 4. Expiration of Agreement This agreement expires on September 29, 2017 and the County shall not be obligated to pay for any services provided by Event Contractor under this agreement if documentation as noted above is not received on or before this reimbursement deadline date, unless the date of the event is amended upon written approval of the Cultural Umbrella and TDC Director. 5. Reimbursement to County Event Contractor shall reimburse County for any amount of funds expended by County in connection with an event which does not occur as a result of any act or omission by Event Contractor. 6. _Media Rights The TDC shall have the right under this agreement to broadcast or rebroadcast, for any purpose whatsoever, radio, television, sound, video or film production, and still photographs, paid by the TDC and County, and produced by the TDC agencies of record. 7. Indemnification and Hold Harmless The Event Contractor covenants and agrees to indemnify and hold harmless and defend Monroe County, its officers, employees and agents including the TDC and Visit Florida Keys 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 the services provided by Event Contractor, or other activities and funding associated with this agreement, except those losses or damages caused by the negligent or wrongful act or omission of County or its agents. 8. Non - Waiver of Immunity Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the Event Contractor and the County in this Agreement and the acquisition of any commercial liability insurance coverage, self- insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. 9. Ethics Clause The Event Contractor warrants that it has not employed, retained or otherwise had act on 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 the provision the County may, at its discretion, terminate this agreement without liability and may also, at its discretion, deduct from the agreement or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift or consideration paid to the former or present County officer or employee. 10. Claims and Venue Event Contractor agrees to notify County immediately of any claims suits or action made against the Event Contractor that is related to the activity under this agreement and will cooperate with County in the investigation arising as a result of any action, suit or claim related to this agreement. Any legal proceedings arising out of this agreement shall be in accordance Event Name: South Florida Symphony Orchestra Cultural Umbrella Funding FY 2017 Contract ID #: 1751 2 with the laws of the State of Florida in the 16 Judicial Circuit for Monroe County; venue shall be in Monroe County, Florida. 11. Severabilitv If any provision of this agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby; and each provision of this agreement shall be valid and enforceable to the fullest extent permitted by law. 12. Governing Law/Venue 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 the agreement, the County and Event Contractor agree that venue shall lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. This agreement shall not be subject to arbitration. 13. Accountinq and Records Event Contractor shall maintain records pursuant to generally accepted accounting principles for four (4) years after the event and shall permit County and its agents and employees access to said records at reasonable times. 14. Termination of Agreement County may terminate this agreement without cause by providing written notice to Event Contractor, through its officer, agent or representative, no less than sixty (60) days prior to the event and may terminate for breach upon providing to Event Contractor, through its officer, agent or representative, written notice at least seven (7) days prior to the effective date of the termination. Notice is deemed received by Event Contractor when hand delivered, delivered by national courier with proof of delivery, or by U.S. mail upon verified receipt or upon the date of refusal or non - acceptance of delivery. 15. Public Entities Crimes 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 bid 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. 16. Logo Logo Usage guidelines are attached to this agreement as Exhibit "B ". All promotional literature and display advertising must display the "Florida Keys & Key West Come As You Are" logo /trademark (as per attached logo sample — Exhibit B). This logo /trademark was adopted by the TDC and County in April, 2010. In- County Lo-go The logo that includes the "Monroe County Tourist Development Council' designation is to be utilized on in- county print newspaper and magazine ads, brochures, postcards, pamphlets, programs, posters, banners (hanging and displayed outdoors) and digital advertising on websites, website links, pre roll video, banners, mobile and email blasts. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council'. To seek approval, clarification and /or logo in electronic format (eps or jpg file), contact Ashley Miller or John Underwood with Tinsley Advertising at 305 - 856 -6060. Event Name: South Florida Symphony Orchestra Cultural Umbrella Funding FY 2017 Contract ID #: 1751 3 Out -of- County Logo The logo that does NOT include the "Monroe County Tourist Development Council' designation is to be utilized in out -of- county newspapers and magazines, brochures, postcards, pamphlets, programs, posters and digital advertising on websites, website links, pre roll video, banners, mobile and email blasts. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council ". To seek approval, clarification and /or logo in electronic format (eps or jpg file), contact Ashley Miller or John Underwood at Tinsley Advertising at 305 -856- 6060. 17. Permits The Event Contractor will secure all required permits, licenses and shall pay all appropriate business taxes. 18. Assignment The Event Contractor shall not assign, transfer, convey, sublet or otherwise dispose of this agreement, or of any or all of its right, title or interest therein, or his or its power to execute such agreement to any person, company or corporation without prior consent of the County. 19. Modification The event name, time & date of the event and Schedule of Activities may be amended upon written approval of the Advisory Committee and TDC Director. Any changes to said contract other than stated above require approval by the Advisory Committee, TDC and the County. 20. Non Occurrence of Event The Event Contractor shall give written notice to the TDC if it is found necessary to cancel an event. The notice shall contain the reason for the cancellation. If the event does not take place for any reason under control of Event Contractor, then Event Contractor agrees to refund to the County any amounts already paid to them under this agreement and relieve the County from any further payments. 21. Laws and Regulations Any and all services, materials and equipment shall comply fully with all Local, State and Federal laws and regulations. 22. Taxes The County and TDC are exempt from Federal Excise and State of Florida Sales Tax, but this in no way exempts the Event Contractor from applicable Federal and State taxes. 23. Finance Charges The County and TDC will not be responsible for any finance charges. 24. Relation of County/TDC It is the intent of the parties hereto that the Event Contractor shall be legally considered as an independent contractor and that neither it nor its employees shall, under any circumstances, be considered servants or agents of the County and TDC, and the County and TDC shall at no time be legally responsible for any negligence on the part of said Event Contractor, its employees or agents, resulting in either bodily or personal injury or property damage to any individual, firm or corporation. 25. Disclosure The Event Contractor shall be required to list any or all potential conflicts of interest, as defined by Florida Statutes Chapter 112 and Monroe County Code. The Event Contractor shall disclose to the County and TDC all actual or proposed conflicts of interest, financial Event Name: South Florida Symphony Orchestra Cultural Umbrella Funding FY 2017 Contract ID #: 1751 0 or otherwise, direct or indirect, involving any client's interest which may conflict with the interest of the County and TDC. 26. Compliance with Laws - Nondiscrimination The Event Contractor, shall comply with all Local, State and Federal laws, regulations and ordinances applicable to the work or payment for work thereof, and shall not discriminate on the grounds of race, color, religion, sex, age or national origin in the performance of work under this agreement. This agreement shall be subject to all Local, State and Federal laws, regulations and ordinances. 27. Security Protection The Event Contractor agrees to provide adequate security for the event. No TDC funds will be used for this purpose. 28. Authority: Each of the signatories for the Event Contractor below certifies and warrants that: a) the Event Contractor's name in the agreement is the full name as designated in its corporate charter, and b) they are empowered to act and execute the agreement for the Event Contractor and c) this agreement has been approved by the Event Contractor's governing board. 29. Miscellaneous As used herein, the terms "contract" and "agreement" shall be read interchangeably. 30. Breach and Penalties The parties agree to full performance of the covenants contained in this agreement, and the County reserves the right at its discretion, provided such breach is material, to terminate this agreement for any misfeasance, malfeasance or nonperformance of the agreement terms or negligent performance of the agreement terms by the Event Contractor. 31. Notice Any notice required or permitted under this agreement shall be in writing and hand delivered, emailed or mailed, postage prepaid, to the other party by certified mail, returned receipt requested to the following: For Grantee: Jacqueline Lorber South Florida Symphony Orchestra, Inc. 221 SW 3rd Avenue Ft. Lauderdale, FL 33312 For Grantor: Maxine Pacini Monroe County Tourist Development Council 1201 White Street, Suite 102 Key West, FL 33040 And Christine Limbert- Barrows, Asst. County Attorney P.O. Box 1026 Key West, FL 33041 -1026 32. Force Maieure The Event Contractor 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 subcontractors or suppliers, including labor dispute, strike, labor Event Name: South Florida Symphony Orchestra Cultural Umbrella Funding FY 2017 Contract ID #: 1751 5 shortage, war or act of 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 Event Contractor has exercised reasonable care in the prevention or mitigation of damages and delay, any such delay or failure shall not constitute a breach of the agreement. Upon demand of TDC or County, the Event Contractor must furnish evidence of the causes of such delay or failure. County shall not pay for any services or activities, promotional or otherwise, connected with an event produced after the date(s) described in paragraph 1. 33. Entire Agreement The parties agree that the agreement above constitutes the entire agreement between the County and Event Contractor. IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. (SEAL) Heavilin, Clerk / t/0 .jc,o South Florida Board of County Commissioners of Monroe County *1 4&--- Mayor /C irm MONROE COUNTY ATTORNl =Y A ROV -0 A5 T O ' YNTHIA L. HALL Inc. ASSISTANT COUNTY ATTORNEY Date __�- �'_�1 Print Name a Date: AND TWO WITNE SES Print Name: t om•. 1 Date: Event Name: South Florida Symphony Orchestra Cultural Umbrella Funding FY 2017 Contract 1[* 1751 C-1 Print Name: _ (5� n e (O s P,' ,�,� Date: -� �J I �, A o 1 �z ry 1= (2) Print Name: _ (5� n e (O s P,' ,�,� Date: -� �J I �, A o 1 EXHIBIT A Acceptable Event Marketing Expenses for Cultural Events Within the Cultural Umbrella events funding category, the allocation received by the Event Contractor is to be spent on the list of items that have been approved. Only the TDC expenses listed below may be included in the proposed budget. The following are the only acceptable expenses: Media Placement & Production Costs: Newspapers and magazines (inserts will also be considered), radio and TV. The TDC will pay for the following digital advertising on websites, website links, pre roll video, banners, mobile and email blasts. Digital advertising links may go to the event website. The TDC Logo must be placed on all print, TV, websites, pre roll video, banners and email blasts. Radio advertising does not require the logo but all radio announcements must say "Brought to you by the Monroe County Tourist Development Council ". No payment will be made for development or operations (hosting) of websites. No more than 30% of the Media Placement and Production Costs line item shall be expended on advertising media costs attributable to in- county placement. Promotional Signs: Posters and banners (hanging and displayed outdoors). Promotional Items: T- shirts and hats *. *Sales /Resale of TDC funded items: Items funded, including creative and resulting work product, by the BOCC/TDC, in accordance with Florida Public Records Law, are owned by the BOCC/TDC and as such may not be sold. Direct Mail Promotions Brochures /postcards and pamphlets including postage and shipping. This is a direct mail promotional brochure, postcard or pamphlet utilized for pre -event advertising. Programs /Play Bills TDC will pay up to fifty percent (50 %) of the cost of production and printing of an event program /play bills showing scheduled activities and information on the event as outlined in contract budget. Public Relations MR): Print and electronic public relations materials for distribution to media, such as, but not limited to, press releases, public service announcements, photography and videography as approved by the public relations agency of record. Only permissible PR material produced by the TDC agency of record and /or a professional public relations agency shall be acceptable. In -House Production: In -house production of any permissible expenditure will not be considered for reimbursement. Event Marketing Reimbursement: TDC will only consider reimbursement of permissible marketing expenditures that highlight the special event versus the regular programming of a business, organization or the facility. Amendments to Contract Budgets; No amendments to the line item budget will be permitted after the contract has been reviewed and approved. Event Name: South Florida Symphony Orchestra Cultural Umbrella Funding FY 2017 Contract ID #: 1751 7 Logo /Acknowledgement Usage Guidelines For Cultural Events EXHIBIT Color ads four (4) color processing printing Black & white ads shall include the Florida Keys and Key West logo in high resolution Use on all printed material as listed under the Acceptable Event Marketing Expenses list TV: logo must appear at the conclusion of commercial Hats and t- shirts: must carry the "The Florida Keys & Key West" Out -of- County logo Radio Advertising: No logo is required. All radio announcements must say "Brought to you by the Monroe County Tourist Development Council" In- County Logo The logo below indicating the "Monroe County Tourist Development Council" designation is to be utilized on in- county print newspaper and magazine ads, brochures, postcards, pamphlets, programs, posters, banners (hanging and displayed outdoors) and digital advertising on websites, website links, pre roll video, banners, mobile and email blasts. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council ". To seek approval, clarification and /or logo in electronic format (eps or jpg file), contact Ashley Miller or John Underwood with Tinsley Advertising at 305 - 856 -6060. The FloriddKeu &Ke v �\►/est come as you are MONROE COUNTY TOURIST DEVELOPMENT COUNCIL Out -of- County Logo The logo below that does NOT include the "Monroe County Tourist Development Council' designation is to be utilized in out -of- county newspapers and magazines, brochures, postcards, pamphlets, programs, posters and digital advertising on websites, website links, pre roll video, banners, mobile and email blasts. Radio commercials should include "Brought to you by The Monroe County Tourist Development Council'. To seek approval, clarification and /or logo in electronic format (eps or jpg file), contact Ashley Miller or John Underwood at Tinsley Advertising at 305 - 856 -6060. The FloriddKeyrs &Ke y� / est comeds you the Event Name: South Florida Symphony Orchestra Cultural Umbrella Funding FY 2017 Contract ID #: 1751 8 EXHIBIT C MONROE COUNTY TOURIST DEVELOPMENT COUNCIL CULTURAL UMBRELLA SCHEDULE OF ACTIVITIES FISCAL YEAR 2017 October 1, 2016 — September 30, 2017 EVENT NAME: SOUTH FLORIDA SYMPHONY ORCHESTRA List scheduled event activities in Monroe Coun in date order * ( must match oaoe 10 Activities Month Event Occurs Num ber of Days SHOW 1 NOV 1 SHOW 2 JAN 1 SHOW 3 FEB 1 SHOW 4 MARCH 1 SHOW 5 APRIL 1 SHOW 6 MAY 1 SHOW 7 JUNE 1 SHOW 8 JULY 1 *If part of your funding request for this fiscal year is to promote event activities taking place in the next fiscal year (pre - promotion), then the following rules will apply: 1. Pre - promotion is only allowed for an event taking place during the months of October and November. If your event takes place after that, you must apply for funding in the next fiscal year. 2. All pre - promotion funding MUST be spent prior to September 30 of the fiscal year you are funded in. (For example: If pre - promotion is for a November Th event, you must place that ad and spend the money prior to September 30 ) EXHIBIT D CULTURAL UMBRELLA EVENT BUDGET - FISCAL YEAR 2017 APPLICANT IS ADVISED PRIOR TO COMPLETING THIS BUDGET TO REFER TO THE FUNDING APPLICATION SHOWING THE ALLOWABLE MARKETING EXPENSES THAT WILL BE CONSIDERED FOR REIMBURSEMENT THERE WILL BE NO AMENDMENTS TO THIS BUDGET {EXHIBIT D} AFTER BOCC APPROVAL OF AGREEMENT South Florida Symphony Orchestra EVENT NAME *MEDIA PLACEMENT & PRODUCTION COST: ( Only 30% of this line item may be spent on in-county advertisin $19,443 PROMOTIONAL SIGNS: PROMOTIONAL ITEMS: DIRECT MAIL PROMOTIONS: PROGRAMS /PLAY BILLS: PUBLIC RELATIONS: $3,000 * *GENERAL NON - ALLOCATED: (Funds applied to Media Placement & Production Cost may only be applied to out-of-county advertisin TOTAL $22,443 *No more than 30% of the Media Placement and Production Costs line item shall be expended on advertising media costs attributable to in- county placement (see Exhibit A of Application). * *The General Non - Allocated line item should not exceed 15% of the total funding allocation, and may only be utilized for acceptable event marketing expenses (see Exhibit A of application). Actual expenditures may deviate no more than 10% from the budgeted line items noted above. TDC will only consider reimbursement of permissible marketing expenditures that highlight the special event versus the regular programming of a business, organization or the facility.