04/16/1997 Agreement
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JBannA' I. l1o(blge
BRANCH OFFICE
3117 OVERSEAS HIGHWAY
MARAmON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289-1745
CLERK OF THE CIRcurr COURT
MONROE COUNTY
SOO WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
FAX (305) 295-3660
~RANCH OFFICE
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
MEMORANDUM
TO:
James T. Hendrick,
County Attorney
FROM:
Isabel C. DeSantis, 0 ' , ,(7
Deputy Clerk \.. /. ( ./'1.
April 25 , 1997
DATE:
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At the April 16, 1997 Commissioner's meeting, the Board granted approval and authorized execution of
an Agreement between the County and Monroe Council for the Arts Corporation, as revised.
Attached hereto is a duplicate original of the Agreement for your return to the MCAC.
Should you have any questions concerning the above, please do not hesitate to call.
cc:
County Administrator, w/o doc.
Finance
J File
AGREEMENT
THIS AGREEMENT, made this 16th
day of
April
, 1997, by and between the Board of
County Commissioners of Monroe County, Florida (hereinafter referred to as BOCC) and Monroe
Council for the Arts Corporation (hereinafter referred to as MCAC) , a not-for-profit corporation
incorporated n the State of Florida.
WHEREAS, the BOCC is authorized to contract for the provision of cultural facilities and
programs; and
WHEREAS, MCAC was created for the purpose of promoting, coordinating, educating and
otherwise enhancing cultural enrichment and the arts in Monroe County; and
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WHEREAS, MCAC is the designated local arts agency for Monroe Coun~n~ -..J
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WHEREAS, the BOCC has determined that it is in the best interests of MonrO. Coun~to e~er into
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this agreement;
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NOW, THEREFORE, for and in consideration of the mutual covenants: contain~ her~n, the
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parties agree as follows:
1. Contract Period: This agreement is for the period commencing /~ P (2..1 L / 0,
1997, and through September 30, 2016, unless earlier terminated pursuant to paragraphs 6 or 23
below. Upon providing written notice to MCAC at least sixty days prior to the expiration date, BOCC
may exercise an option to extend this agreement for fifteen years under the same terms and
conditions.
2. Scope of Services:
MCAC shall provide the program development. and sponsorship
necessary to accomplish within Monroe County the goals and purposes set forth by the State
Legislature in the Florida Fine Arts Act of 1980.
3. BOCC Responsibilitv: The BOCC shall direct its Administrator, Department Heads, County
Attorney and staff to provide certain facilities and support to MCAC as can be provided without
requiring an increase in personnel or any purchase or lease of real property. The BOCC shall provide
to MCAC, within the aforementioned limitation, as well as all rules applicable to County, the
following:
a) One office in Key West.
b) Support services from County departments to assist in such activities as moving office
furniture, and equipment, preparing legal documents, risk management (insurance) consultation,
and any other activities which are already performed by County staff which can be performed to
further the goals of this agreement without requiring any increase in County staff.
c) Inclusion of said office space in BOCC's provisions for cleaning and maintenance of
County offices; and
d) Priority in donation to non-profit organizations of any surplus County property which
can be utilized by MCAC to further the purposes of the Florida Fine Arts Act of 1980.
4. Records - Access and Audits: The MCAC shall maintain adequate and complete records
for a period of four years after completion of any event or program. The BOCC shall have access to
the books, records, and documents of MCAC. The access to and inspection of such books, records
and documents by the BOCC shall occur at any reasonable time.
5. Relationship of Parties:
MCAC is, and shall be, in the performance of all works, services
and activities under this Agreement. an independent contractor and not an employee, agent or
servant of the BOCC. MCAC shall exercise control, direction, and supervision over the means,
manner personnel and volunteers through which it performs the work. Although this Agreement is a
cooperative agreement. similar in many respects (but not all) to a partnership, MCAC shall have no
authority whatsoever to act on behalf and/or as agent for the BOCC in any promise, agreement or
representation other than specifically provided for in this Agreement. The BOCC shall at no time be
legally responsible for any negligence on the part of MCAC, its employees, agents or volunteers
resulting in either bodily or personal injury or property damage to any individual, property or
corporation.
6. Modification:
Additions to, modification to, or deletions from the provision of this
contract may be made only in writing and executed by the BOCC. No modification shall become
effective without written approval of both parties.
7. Breach and Penalties: The parties agree to full performance of the covenants contained n
this contract. Both parties reserve the right, at the discretion of each, to terminate the services in this
contract for any misfeasance, malfeasance or nonperformance of the contract terms or negligent
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performance of the contract terms by the other party. Any waiver of any breach of covenants
herein contained shall not be deemed to be a continuing waiver and shall not operate to bar either
party from declaring a forfeiture for any succeeding breach either of the same conditions or
covenants or otherwise.
8. Insurance Requirements:
MCAC shall carry, during the term of this agreement public
liability insurance, including bodily injury and property loss damage to cover all claims, demands or
actions by any person or entity in any way arising from the operation of the Agreement. Such liability
insurance shall meet the requirements of the Insurance Requirement Attachments hereto. Monroe
County shall be named as an additional insured under the insurance policy and such insurance shall
be primary and non-contributing with any insurance carried by the BOCC. MCAC shall furnish the
County with a certificate evidencing the insurance required by this paragraph at the time of
executing this Agreement.
9. Indemnification and Hold Harmless:
MCAC shall indemnify and hold harmless the BOCC.
their departments, agencies, officials, employees, agents, servants and contractors against any
claims, liabilities and expenses (including reasonable attorney's fees) arising as a result of any direct
and/or indirect action of MCAC. its employees, agents, servants, volunteers and/or contractors in the
performance of the terms of this agreement or otherwise related to activity conducted in the
furtherance of this agreement except to the extend that, in the case of any act of negligence,
MCAC reasonably relied upon material or services supplied by the BOCC or any employee of the
BOCC. MCAC shall immediately give notice to the BOCC of any suit claim or action made against
that is related to any activity under this Agreement and will cooperate with the BOCC in the
investigation arising as a result of any suit, claim or action related to this Agreement.
10. Permits:
The MCAC shall secure all required permits and/or licenses necessary to carry
out any of the services rendered under this Agreement.
11. Laws and Requlations.
(a) This Agreement shall be construed by and governed under the laws of the State of
Florida unless in an area of law pre-empted by federal law. MCAC agrees for venue of any dispute
to lie in Monroe County, Florida.
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(b) MCAC shall comply with all laws, including but not limited to those listed in Exhibit C.
(c) MCAC shall comply with all federal, state and local laws 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.
(d) Any violation of said statutes, ordinances, rules, regulations and executive orders shall
constitute a material breach of this Agreement and shall entitle the BOCC to terminate this
Agreement immediately upon delivery of written notice to the MCAC.
12. Taxes: The BOCC is exempt from Federal, Excise and State of Florida Sales Tax.
13. Finance Charqes: The BOCC will not be responsible for any finance charges.
14. Severability: If any provision of this contract shall be held by a court of competent
jurisdiction to be invalid or unenforceable. the remainder of this contract, or the application of such
provision other than those as to which it is invalid or unenforceable, shall not be affected thereby;
and each provision of this contract shall be valid and enforceable to the fullest extent permitted by
law.
15. Force Maieure: MCAC shall not be liable for delay in performance or failure to perform in
whole or in part, the services due to the occurrence of any contingency beyond its control or the
control of any of its sub-contractors or suppliers, including labor dispute. strike. labor shortage, war or
act of war, whether an actual declaration thereof is 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 MCAC has
exercised reasonable care in the prevention thereof. and any such delay or failure shall not
constitute a breach of the Agreement. MCAC shall notify the BOCC of any delay or failure to
perform within five (5) days of such action. Upon demand of the BOCC. MCAC must furnish
evidence of the causes of such delay or failure.
16. Assignment:
MCAC shall not assign. transfer, sublease, pledge, hypothecate, surrender,
or otherwise encumber or dispose of this contract or any estate created by this contract or any
interest in any portion of the same, or permit any other person or persons, company or corporation
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to perform services under this contract without first obtaining the written consent of the BOCC. In the
event of such consent, this agreement shall be binding upon MCAC's successors and assigns.
17. Disclosure: MCAC shall be required to list any or all potential conflicts of interest, as
defined by Florida Statutes Chapter 112, Part III and the Monroe County Ethics Ordinance. MCAC
shall disclose to the BOCC all actual or proposed conflicts of interest. financial or otherwise, direct or
indirect, involving any client's interest which may constitute a conflict under said laws.
18. Additional Conditions: MCAC agrees to accept additional conditions governing the use
of funds or performance of work as may be required by federal. state or local statute, ordinance or
regulation or by other policy adopted by the BOCC. Such additional conditions shall not become
effective until MCAC has been notified in writing and no such additional conditions shall be imposed
retroactively.
19. Independent Professional Judament: MCAC shall at all times exercise independent
professional judgment and shall assume full responsibility for the service to be provided and work to
be completed.
20. Care of Property: The MCAC shall be responsible to the BOCC for the safekeeping and
proper use of the property entrusted to MCAC's care, and to process all documents necessary to
continue, without interruptions, any maintenance or service contracts relating to such equipment for
its service life.
21. Ethics Clause: The MCAC warrants that it has not employed, retained or otherwise had
act on its behalf any former County officer or employee subject to the prohibition of Section 2 of
Ordinance No. 010-1990 or any BOCC 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
contract without liability and may also, in its discretion, deduct from the contract or purchase price,
or otherwise recover, the full amount of any fee, commission, percentage, gift or consideration paid
to the former Monroe County Arts Councilor BOCC officer or employee.
22. Notice: Any notice required or permitted under this Agreement shall be in writing and
hand-delivered or mailed, postage prepaid, by certified mail. return receipt requested, to the other
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party as follows:
To MCAC:
Nance Frank
1 71 7 George Street
Key West FL 33040
To: BOCC/Countv
County Attorney
310 Fleming Street
Second Floor
Key West FL 33040
Termination of this Agreement shall occur at the natural ending date, or
23. Termination:
earlier should either party determine that there has occurred any material breach of any covenants
herein contained, or either party otherwise deems it in their best interest to terminate. Termination
may be with or without cause, and shall require written notice to be given to the other party as
follows:
(a) In the event either party terminates for breach of contract, termination shall be
effective at such time as the terminating party shall declare in its act to terminate for cause, with a
minimum of fourteen days notice in writing required prior to effective termination.
(b) In the event either party terminates without cause, the termination shall not take effect
until at least sixty days subsequent to written notice to the other party, and the effective date of
termination shall be specified in said notice.
24. Full Aoreement: This Agreement constitutes the entire and full understanding between the
parties hereto and neither party shall be bound by any representations, statements, promises or
agreements not expressly set forth herein and in duly executed amendments under paragraph 6
hereof.
IN WITNESS WHEREOF, the parties have executed this agreement the day and year first above
written.
(SEAL)
Attest:
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'<li~~iB;:-6ANNY L. KOLHAGE, Clerk
MONROE COUNCIL FOR THE
ARTS CORPd _
By ~(~
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
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By .1'xLLc {t. llJfj alL ,Gv:J
Deputy Clerk
By
aa/contracts/macOOl