07/20/2016 Agreement •
AMY NEAVILIN, CPA
CLERK OF CIRCUIT COURT & COMPTROLLER
MONROE COUNTY,FLORIDA
DATE: September 14, 2016
TO: Doug Spasito, Director
Project Management
ATTN.: Ann Riger, Contracts Administrator
FROM: Cheryl Robertson Executive Aide to the Clerk of Court & Comptroller ef-
At the July 20, 2016 Board of County Commissioner's meeting the Board granted approval and
execution of the following Item Cl 1 Approval of an Administrative Agreement with the Florida Keys
Council of the Arts (FKCA) to utilize 10% of the 1%Art in Public Places allocation for capital projects,
to pay for administrative expenses.
Enclosed is a duplicate original of the above-mentioned for your handling. Should you have any
questions,please feel free to contact our office.
cc: County Attorney
Finance
File /
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 Fox:305-852-7146
MONROE COUNTY ARTS IN PUBLIC PLACES
ADMINISTRATIVE AGREEMENT
This AGREEMENT dated the 20th day of July, 2016, is entered into by and between the
BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, ("County"), and the
Florida Keys Council of the Arts ("FKCA").
WHEREAS, the Art in Public Places Ordinance #022-2001, codified at MCC §2-233,
provides for an appropriation of 1% of the construction costs for new construction exceeding
$500,000.00 and renovations exceeding $100,000.00 for the acquisition, commission,
installation, and maintenance of works of art in said buildings; and
WHEREAS, the ordinance establishes an Arts in Public Places Committee (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 FKCA; and
WHEREAS, an Administrative Agreement for the FKCA to utilize 10% of the art
funding for administrative expenses has been continuously in effect since the first BOCC action
on October 15, 2008;
WHEREAS, the current Administrative Agreement will expire on September 30, 2016
with no additional options available to renew the Agreement; and
WHEREAS, the FKCA has authorized its Executive Director to request to enter into a
new Administrative Agreement to utilize 10% of the art funding for administrative expenses
effective October 1, 2016 and expiring on September 30, 2019; 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:
1. REIMBURSABLE ADMINISTRATIVE EXPENSES: The County shall reimburse up to
10% of the funds allocated for each project to the FKCA 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 FKCA may be reimbursed for personnel (as listed below) for their time spent
associated with a project, at their hourly rate, including but not limited to issuance of
Page I 1
RFQ's and RFP's, collating and distributing responses, providing administrative
support during evaluation meetings, and preparation and processing of contracts:
NAME FUNCTION HOURLY RATE
Elizabeth Young Administration $30.00
Allison Carroll Administration $25.00
Shannon Lynch Administration $20.00
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 Project
Management.
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.
2. MODIFICATIONS AND AMENDMENTS: Any and all modifications of the terms of
this Agreement shall be amended in writing and approved by the Board of County
Commissioners of Monroe County.
3. AGREEMENT PERIOD: This Agreement is for the period of three years beginning
October 1, 2016 and ending September 30, 2019. There will be I option to renew this
Agreement for one additional three-year term. Renewal must be requested in writing by
the FKCA and approved by the Board of County Commissioners of Monroe County.
4. SEPARATE ENTITY: At all times and for all purposes hereunder, the FKCA 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.
5. HOLD HARMLESS/INDEMNIFICATION: The FKCA hereby agrees to indemnify and
hold harmless 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 FKCA 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
Page 12
with the County in the investigation arising as a result of any suit, action or claim related
to this Agreement.
6. 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.
7. ETHICS CLAUSE: The FKCA 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,
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.
8. 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 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 perfonn 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 represents that Artist in not on the Convicted Vendor list.
9. 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 & FKCA For County
Executive Director
Florida Keys Council of the Arts Monroe County Project Management
1100 Simonton Street 1100 Simonton Street Rm 2-216
Key West, FL 33040 Key West, FL 33040
Monroe County Attorney
1111 121h Street, Suite 408
Key West, FL 33040
Page 13
10. The parties further agree as follows:
a. Public Records Compliance. FKCA must comply with Florida public records laws,
including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the
Constitution of Florida. The County and FKCA shall allow and permit reasonable access to,
and inspection of, all documents, records, papers, letters or other"public record" 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 FKCA in conjunction with this contract and related
to contract performance. The County shall have the right to unilaterally cancel this contract
upon violation of this provision by the FKCA. Failure of the FKCA to abide by the terms of
this provision shall be deemed a material breach of this contract and the County may enforce
the terms of this provision in the form of a court proceeding and shall, as a prevailing party,
be entitled to reimbursement of all attomey's fees and costs associated with that proceeding.
This provision shall survive any termination or expiration of the contract.
The FKCA is encouraged to consult with its advisors about Florida Public Records
Law in order to comply with this provision.
Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the FKCA is
required to:
(1) Keep and maintain public records that would be required by the County to
perform the service.
-- (2) Upon receipt from the County's custodian of records, provide the County with a
copy of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in this chapter or as
otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by law
for the duration of the contract term and following completion of the contract if the
FKCA does not transfer the records to the County.
(4) Upon completion of the contract, transfer, at no cost, to the County all public
records in possession of the FKCA or keep and maintain public records that would be
required by the County to perform the service. If the FKCA transfers all public
records to the County upon completion of the contract, the FKCA shall destroy any
duplicate public records that are exempt or confidential and exempt from public
records disclosure requirements. If the FKCA keeps and maintains public records
upon completion of the contract, the FKCA shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the
County, upon request from the County's custodian of records, in a format that is
compatible with the information technology systems of the County.
(5) A request to inspect or copy public records relating to a County contract must be
made directly to the County, but if the County does not possess the requested records,
the County shall immediately notify the FKCA of the request, and the FKCA must
Page 14
provide the records to the County or allow the records to be inspected or copied
within a reasonable time.
If the FKCA does not comply with the County's request for records, the County shall
enforce the public records contract provisions in accordance with the contract,
notwithstanding the County's option and right to unilaterally cancel this contract
upon violation of this provision by the FKCA. A contractor who fails to provide the
public records to the County or pursuant to a valid public records request within a
reasonable time may be subject to penalties under sectionI 19.10, Florida Statutes.
The FKCA shall not transfer custody, release, alter, destroy or otherwise dispose of
any public records unless or otherwise provided in this provision or as otherwise
provided by law.
IF THE FKCA HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE FKCA'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY
AT PHONE# 305-292-3470 BRADLEY-BRIAN(i MONROECOUNTY-
FL.GOV, MONROE COUNTY ATTORNEY'S OFFICE 1111 12TH Street,
SUITE 408, KEY WEST, FL 33040.
b. Interpretation, Costs, and Fees. The County and FKCA 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 FKCA 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 attomey's fees, court costs, investigative, and out-of-
pocket expenses, as an award against the non-prevailing party, and shall include
attomey's fees, court 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.
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
Page 15
Agreement. The County and FKCA 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 FKCA 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.
f. Claims for Federal or State Aid. FKCA 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 FKCA 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 FKCA 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 FKCA 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 FKCA 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 FKCA 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 VI of the Civil Rights Act of 1964 (PL
88-352) which prohibits discrimination on the basis of race, color or national origin;
Page 16
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.
j. Covenant of No Interest. County and FKCA 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.
1. No Solicitation/Payment. The County and FKCA 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 Jinn, 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, FKCA 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.
Page 17
m. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida
Statues, the participation of the County and FKCA 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.
n. 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.
o. 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 a
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.
p. 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 FKCA agree that neither the County nor FKCA 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.
q. Attestations. FKCA agrees to execute such documents as the County may reasonably
require, to include a Public Entity Crime Statement, and Ethics Statement, and a
Drug-Free Workplace Statement
r. 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
Page 18
•
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.
s. 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.
t. 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 respective names.
BOARD OF COUN COMMISSIONERS
to-
`' HEAVILIN, Clerk OF MONROE CO Y RIDA
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A .i = - r t✓putt'Clerk 9 Ito co ayo airman
AIPP FLORIDA • YS COUNCIL OF THE ARTS
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Title: nLi_ 2-Date: t3i 20/,el
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AF,PROMEO AS TO FORM
CHRIS AMBROSIO
ASSSTANT COUNTY gTTORNEY
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Page 19
LOBBYING AND CONFLICT OF INTEREST CLAUSE
SWORN STATEMENT UNDER ORDINANCE NO. 010-1990
MONROE COUNTY, FLORIDA
ETHICS CLAUSE
K-CA „
(Company)
... warrants that he/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.
010-1990 or any County officer or employee in violation of Section 3 of Ordinance No.
010-1990. For breach or violation of this provision the County may, in its discretion,
terminate this Agreement without liability and may also, in its discretion, deduct from the
Agreement or purchase price, or otherwise recover, the full amount of any fee,
commission, percentage, gift, or consideration .< . to the fo uer County officer or
employee".
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Hat-. �s: • -5, ), "
STATE OF: fn 1-44.-
COUNTY OF: / /c,,.L,L65.-
Subscribed and sworn to (or affirmed) before me on o/,3r'J/C7
(date)by fE � - r p� t� (name of affiant). HIS is
personally kno to me or has p duced W/
------a-s identification. (type of identification)
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DRUG-FREE WORKPLACE FORM
The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies
that: ,+� /�
ri-o f r bA- is&-liS (-c,�NC(L o f� � L FKCA)
(Name of Business)
1. Publish a statement notifying employees that the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance is prohibited in the workplace
and specifying the actions that will be taken against employees for violations of such
prohibition.
2. Inform employees about the dangers of drug abuse in the workplace, the business's
policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation,
and employee assistance programs, and the penalties that may be imposed upon
employees for drug abuse violations.
3. Give each employee engaged in providing the commodities or contractual services
that are under bid a copy of the statement specified in subsection (1).
4. In the statement specified in subsection (1), notify the employees that, as a condition
of working on the commodities or contractual services that are under bid, the employee
will abide by the terms of the statement and will notify the employer of any conviction of,
or plea of guilty or nob contendere to, any violation of Chapter 893 (Florida Statutes) or
of any controlled substance law of the United States or any state, for a violation
occurring in the workplace no later than five (5) days after such conviction.
5. Impose a sanction on, or require the satisfactory participation in a drug abuse
assistance or rehabilitation program if such is available in the employee's community, or
any employee who is so convicted.
6. Make a good faith effort to continue to maintain a drug-free workplace through
implementation of this section.
As the person authorized to sign the statement, I certify that this firm complies fully with
the above requirem- ts.
j� espon •ig nature
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23i 2°'k
Date
•
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 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."
I hay- j. a and acknowledge the Public Entity Crime Statment
iikDate: A ZOl i