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10/15/2008 Agreement DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: October 22, 2008 TO: Dave Koppel, County Engineer Engineering Division A TTN: Ann Riger _y Isabel C. DeSantis / p' Deputy Clerk V FROM: At the October 15, 2008, Board of County Commissioner's meeting the Board granted approval and authorized execution of an Administrative Agreement with the Florida Keys Council of the Arts to utilize 10% of the I % allocation for art funding, for the reimbursement of administrative expenses. Enclosed is a fully executed duplicate-original of the above-mentioned for your handling. Should you have any questions please do not hesitate to contact this office. cc: County Attorney Finance File , .. Monroe County Art in Public Places Administrative Al!:reement This AGREEMENT dated the 15th day of October, 2008, is entered into by and between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, ("County"), and Florida Keys Council of the Arts ("FKCA" or "Contractor"). WHEREAS, the Art in Public Places Ordinance #022-2001, codified at MCC 92- 322(A), provides for an appropriation of I % of the construction costs for new construction exceeding $500,000 and renovations exceeding $100,000, for the acquisition, commission, installation, and maintenance of works of art in said buildings; and WHEREAS, the ordinance establishes an Arts in Public Places (AIPP) Committee to advise the County Commission regarding art to be acquired and installed in each public construction project subject to the AIPP allocation; and WHEREAS, the AIPP Committee has elected to utilize 10% of the art funding for each project for certain reimbursements of administrative expenses incurred by the Florida Keys Council of the Arts (FKCA); and NOW, THEREFORE, in consideration of the mutual covenants and payment contained herein, the parties have entered in to this agreement on the terms and conditions as set forth below: I. AGREEMENT PERIOD: This agreement is for the period of one year beginning October 1. 2008 and ending September 30.2009, (with reimbursable expenses retroactive to August I, 2008). There are options to renew this Agreement for three one-year terms. 2. PERSONNEL: The Florida Keys Council of the Arts personnel listed below are qualified personnel to perform services concerning the project. At the time of execution of this contract, the AIPP anticipates the following named individuals will perform those functions as indicated: NAME Elizabeth Young Andrea Comstock Reen Stanhouse FUNCTION Administration Administration Administration RATE per hour $20.00 $20.00 $15.00 The services performed by the above personnel shall be reimbursed at their hourly rate. A schedule of services must be approved by the Director of Facilities Development. 3. REIMBURSABLE ADMINISTRATIVE EXPENSES: The County shall reimburse up to 10% of the funds allocated for Art in Public Places funding for each project to the Florida Keys Council of the Arts for expenditures directly related to each project. Expenses shall be reimbursed only after properly invoiced by the FKCA with supporting receipts and documents. . , Reimbursable expenses shall include: a. The Florida Keys Council of the Arts may be reimbursed for personnel as listed above for their time spent associated with a project, at their hourly rate, including but not limited to issuance of RFQ's and RFP's, collating and distributing responses, providing administrative support during evaluation meetings, and preparation and processing of contracts. b. Expense of transportation and living expenses, but only to the extent and in the amounts authorized by Section 112.061, Florida Statutes. c. Postage and handling of documents associated with the project. d. Costs for printing, binding, copying costs, associated with the project. 4. MODIFICATIONS AND AMENDMENTS: Any and all modifications of the terms of this agreement shall be only amended in writing and approved by the Board of County Commissioners for Monroe County. 5. SEPARATE ENTITY: At all times and for ail purposes hereunder, the Florida Keys Council of the Arts is a separate entity and not an employee of the Board of County Commissioners of Monroe County. No statement contained in this agreement shall be construed as to find the FKCA or any of its employees, contractors, servants or agents to be employees of the Board of County Commissioners of Monroe County, and they shall be entitled to none of the rights, privileges or benefits of employees of Monroe County. 6. HOLD HARMLESS/INDEMNIFICATION: The Florida Keys Council of the Arts hereby agrees to indemnify and hold hannless the BOCC, and any of its officers and employees from and against any and all claims, liabilities, litigation, causes of action, damages, costs, expenses (including but not limited to fees and expenses arising from any factual investigation, discovery or preparation for litigation), and the payment of any and all of the foregoing or any demands, settlements or judgments arising directly or indirectly under this agreement. The Florida Keys Council of the Arts shall immediately give notice to the County of any suit, claim or action made against the County that is related to the activity under this agreement, and will cooperate with the County in the investigation arising as a result of any suit, action or claim related to this agreement. 7. CONSENT TO JURISDICTION: This agreement, its performance, and all disputes arising hereunder, shall be governed by the laws of the State of Florida, and both parties agree that the proper venue for any actions shall be in Monroe County. 8. ETHICS CLAUSE: The Florida Keys Council of the Arts warrants that it has not employed, retained or otherwise had act on his 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 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. 9. PUBLIC ENTITY CRIME STATEMENT: A person or affiliate who has been placed on the convicted list following a conviction for public entity crime may not submit a bid on an agreement to provide any goods or services to a public entity, may not submit a bid on an agreement 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, sub-contractor, or consultant under an agreement 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. Artist represents that Artist is not on the Convicted Vendor list. 10. NOTICE: Any written notice to be given to either party under this agreement or related hereto shall be addressed and delivered as follows: For AIPP & Florida Kevs Council of the Arts For Countv Florida Keys Council of the Arts 1100 Simonton Street Key West, FL 33040 Monroe County Facilities Development 1100 Simonton Street Room 2-216 Key West, FL 33040 & Monroe County Attorney IIII 12'h Street, Suite 408 Key West, FL 33040 II. The parties further agree as follows: a) 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 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. b) Interpretation, Costs, and Fees: 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. 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, court costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initialed 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. c) 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 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. d) 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. e) 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. t) 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. g) 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 no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any part shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. h) 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. i) Nondiscrimination. County and Contractor 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 Contractor 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: I) Title VI 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) Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and II) any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. j) Covenant of No Interest. County and Contractor 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. k) Code of Ethics. 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. I) No Solicitation/Payment. 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 that 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 Contactor 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. , m) 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 the provision by Contractor. n) Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation ofthe County and the Contractor 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. 0) 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. p) 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 entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by and 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. q) 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. r) 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. s) 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. t) 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 any of the parties hereto may execute this Agreement by signing any such counterpart. u) 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. IN WITNESS WHEREOF, the parties have caused these presents to be executed in their reSPFftive names. (SEAL) Atlest; DANNY L. KOLHAGE, Clerk By: g"..c:J.. Q (... &s6~ Deputy Clerk AIPP Witness: By: Title: Date: Q/30/()}J BOARD OF COUNTY COMMISSIONERS ::~;a;~ Mayor/Chairman - o :;,: -'.j CJ <) ,-"~, ;--.- ". .. ~ ~ R -., "v "v " ~ -J ~'I r-- "v , ....', " J ~ , MONROE COUNTY AHORNE A R~VED AS TO FOR . / jJ C'.J",J.-) NATILEENE W. CASSEL ASSISTANT COUN~TTOANEY ata /'J/'" / C> /