FY2007 09/20/2006
Clerk Dllhe
Circul COUll
Danny L. Kolhage
Phone: 295-3130 Fax: 295-3663
Memnrandum
To:
Lynda Stuart, OffICe Manager
Tourist Development Council
Attn:
Maxine Pacini
Isabel C. DeSantis, . _ ~
Deputy Clerk fJI
From:
Date:
Thursday, September 28, 2006
At the BOCC meeting on September 20, 2006, the Board approved the following:
Agreement with Monroe Council of the Arts Corporation, d/b/a Florida Keys
/ Council of the Arts to supplement costs of tourist programs in an amount not to exceed
$72,500
Amendment to Agreement with the City of Key West to extend the Agreement for
the White Street Pier Lighting Replacement Project in an amount not to exceed $100,000,
DAC I, Capital Project Resources.
Destination Event Agreement with Take Chances at the Helm, Inc. covering the
21 ,I Annual Key Largo Steeplechase on December 10-11, 2006 in an amount not to
exceed $5,000, DAC V, FY 2006 Event Resources.
Agreement with Tinsley Advertising and Marketing, Inc. to provide advertising
services for the Monroe County TDC and County.
Amendment to Agreement with Keys Association of Dive Operators to replace the
District III Dive Umbrella Representative
Attached hereto are two (2) duplicate originals of each document for your
handling. Should you have any questions concerning the above, please do not hesitate to
contact me at 295-3130.
cc: Finance
County Attorney
File
AGREEMENT
THIS Agreement (Agreement) is entered into this d6~ day ofMjjv~ .."
2006, by and between the BOARD OF COUNTY COMMISSIONERS, M@ro.Co~ty, E:,
Florida (County), and Monroe Council of the Arts Corporation, d/b/a ~jQ~a ~ys ''''
Council of the Arts (Provider). ~;:JI':-' N ;j
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WHEREAS, Provider has requested funding to supplement costS ~ toij5ist 5
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related programs; and \D
WHEREAS, County desires to fund tourist related programs;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. TERM: The term of this contract is for a period of one year beginning
October 1,2006 and expiring on September 30, 2007.
2. SCOPE OF SERVICES: Provider shall provide the following services:
A) The administration and promotion of cultural/arts tourist related
programs, including but not limited to: publishing and distribution for use by tourism
industry of annual calendar of cultural events, a gallery guide and the quarterly Who
What When & Where events guide, weekly cultural calendar information provided to
print media keys-wide, brochure of locations/map of galleries/museums and other
places of historic or cultural interest for tourists, maintenance of cultural/arts information
services that include Monroe Council of the Arts website (www.keysarts.com). Provider
shall maintain rotating displays of visual art at the Key West and Marathon airport and
several public buildings, including the historic Gato Cigar Factory County Complex, as
well as answering any inquiries from potential travelers or visitors looking for cultural
information.
B) LEASING OF THE CORAL SHORES PERFORMING ARTS
CENTER. This segment of the agreed services requires the Provider to facilitate the
leasing by not-for-profit organizations of the Coral Shores Performing Arts Center
("Center") for tourist related events. Payment for the leasing of the Center shall be
limited to direct rental/leasing costs including maintenance and box office costs for the
Center for tourist related events, as described in the normal contractual terms of the
Coral Shores Performing Arts Center rental policies, for an amount not to exceed
$2,000 per event i.e. whether that event has one or more performances. The total
funding of the leasing of the Center for these events as defined shall not exceed
$30,000 per year. Provider shall submit for reimbursement under this agreement
copies of the invoices and contracts entered into with the Coral Shores Performing Arts
Center.
Florida Keys Council of the Arts Agreement I
FY 2007
3. COMPENSATION: A) For the services described in 2A, above, the
County shall provide an amount not to exceed $42,500 per year for the period of
October 1, 2006 through September 30, 2007, subject to any adjustment for an invoice
as described in the last sentence of this paragraph. Payments will be in eleven (11)
installments of $3,541.67 and one (1) installment of $3,541.63. Monroe County's
performance and obligation to pay under this agreement is contingent upon an annual
appropriation by the BOCC. Said payment shall occur in compliance with the Local
Government Prompt Payment Act upon the TDC Administrative Office receiving an
invoice as outlined in Exhibit A. Included with the invoice shall be a statement verifying
and certifying that the requirements and duties set forth within this agreement have
been fully performed for the month for which the invoice is being submitted and that
payment for the services have not been duplicated within other grant contracts with the
BOCC, State of Florida Division of Cultural Affairs or the National Endowment of the
Arts. B) Payment for the leased use of the Coral Shores Performing Arts Center, as
described in 2B, above, shall be made in compliance with the Florida Prompt Payment
Act upon receipt from the provider of a proper invoice for an amount not to exceed
$2,000 per event as defined in 2. B). If, at the end of the fiscal year, Provider has been
able to achieve economies in the leasing of the Center and has not utilized the entire
$30,000 allocated for this function, the difference between the $30,000 and the amount
actually expended may be paid to the Provider, upon submission of an invoice (similar
to that shown in Exhibit A) to the Tourist Development Council administrative office,
contingent upon verification of the provision of tourist-related services.
4. RECORDS - ACCESS AND AUDITS: The Provider shall maintain all
books, records, and documents directly pertinent to performance under this Agreement
in accordance with generally accepted accounting principles consistently applied. The
records to justify all charges, expenses and costs incurred in performing the work shall
be maintained by the Provider for at least four (4) years after completion of this
contract. The County shall have reasonable and timely access to such books, records,
and documents concerning the contracted services. If an auditor employed by the
County or Clerk determines that monies paid to Provider pursuant to this Agreement
were spent for purposes not authorized by this Agreement, the Provider shall repay the
monies together with interest calculated pursuant to Sec. 55.03, FS, running from the
date the monies were paid to Provider.
(a) PUBLIC ACCESS. The County and Provider 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 Provider in conjunction with
this Agreement; and the County shall have the right to unilaterally cancel this
Agreement upon violation of this provision by Provider.
5. INDEPENDENT CONTRACTOR RELATIONSHIP: The Provider, is and
shall be, in the performance of all works, services, and activities under this contract, an
independent contractor and not an employee, agent or servant of the County. The
Florida Keys Council of the Arts Agreement 2
FY 2007
Provider shall exercise control, direction, and supervision over the means and manner
and personnel in which it and its employees perform the work. In all respects, the
Provider's relationship and the relationship of its employees to the County shall be that
of an independent contractor and not as employees or agents of the County. Moreover,
the Provider shall have no authority whatsoever to act on behalf and/or as agent for the
County in any promise, contract, or representation other than specifically provided for in
this contract. The County shall at no time be legally responsible for any negligence on
the part of said Provider, its employees or agents, resulting in either bodily or personal
injury or property damage to any individual, form, or corporation.
6. MODIFICATION: Additions to, modification to, or deletions from the
Scope of Work and/or costs of work set forth in this contract may be made only by
amendment to this contract which must be approved in writing by the County. No
modification shall become effective without written approval of County.
7. BREACH AND PENALTIES: The parties agree to full performance of the
covenants contained in this contract, and the County reserves the right at its discretion,
provided any breach is material, to terminate the services in this contract for any
misfeasance, malfeasance or nonperformance of the contract terms or negligent
performance of the contract terms by Provider. Any waiver of any breach of covenants
herein contained shall not be deemed to be a continuing waiver and shall not operate to
bar the County from declaring a forfeiture for any succeeding breach either of the same
conditions or covenants or otherwise.
8. INDEMNIFICATION AND HOLD HARMLESS: The Provider shall
indemnify and hold harmless the County, 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 Provider, its employees, agents, servants and/or contractors in the
performance of the terms of this contract or otherwise related to activity conducted in
the furtherance of this contract except to the extent that, in the case of any act of
negligence, Provider reasonably relied upon material supplied by the County or any
employee of County. Provider shall immediately give notice to County of any suit, claim
or action made against Provider that is related to any activity under this contract and will
cooperate with the County in the investigation arising as a result of any suit, claim or
action related to this Agreement. The first $10.00 of compensation shall be
consideration for this indemnification. This provision shall survive the termination of this
Agreement. .
9. LAWS AND REGULATIONS: It shall be understood and agreed that any
and all services, materials and equipment shall comply fully with all Local, State and
Federal laws and regulations.
10. TAXES: The County is exempt from Federal, Excise and State of Florida
Sales Tax.
Florida Keys Council of the Arts Agreement 3
FY 2007
11. FINANCE CHARGES: The County will not be responsible for any finance
charges.
12. SEVERABILITY: If any term, covenant, condition or provIsion of this
contract shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining terms, covenants, conditions and provisions 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 remaining term, covenant,
condition and provision of this contract shall be valid and 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 Provider 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.
13. FORCE MAJEURE: The Provider 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-Providers or
suppliers, including labor dispute, strike, labor shortage, war or act or 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 Provider has exercised reasonable care in the prevention thereof, and
any such delay or failure shall not constitute a breach of the contract. The Provider
shall notify the TDC of any delay or failure to perform within five (5) days of such action.
Upon demand of TDC, the Provider, must furnish evidence of the causes of such delay
or failure. The Provider shall not resume its performance hereunder unless provided for
in the Scope of Services.
14. ASSIGNMENT: Provider shall not assign, transfer, sublease, pledge,
hypothecate, surrender, or otherwise encumber of 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 to perform services under this contract
without first obtaining the written consent of the County. In the event of such consent,
this contract shall be binding upon the Provider's successors and assigns.
15. DISCLOSURE: The Provider shall be required to list any or all potential
conflicts of interest, as defined by Florida Statute 112 and Monroe County Ethics
Ordinances. The Provider shall disclose to the County all actual or proposed conflicts
of interest, financial or otherwise, direct or indirect, involving any client's interest which
may conflict with the interest of the County.
16. ADDITIONAL CONDITIONS: Provider 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
Florida Keys Council of the Arts Agreement 4
FY 2007
County. Such additional conditions shall not become effective until Provider has been
notified in writing and no such additional conditions shall be imposed retroactively.
17. INDEPENDENT PROFESSIONAL JUDGEMENT: Provider shall at all
times exercise independent professional judgment and shall assume full responsibility
for the service to be provided and work to be completed.
18. CARE OF PROPERTY: The Provider shall be responsible to the County
for the safekeeping and proper use of the property entrusted to Provider's care, to
include any and all insurance for the value of the equipment and any maintenance or
service contracts relating to such equipment for its service life.
19. ETHICS CLAUSE: The Firm warrants that no person has been employed
or retained to solicit or secure this contract upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee and that no member of the
Monroe County government or the TDC has any interest, financially or otherwise, in the
Firm or its subcontractors. 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.
20. COVENANT OF NO INTEREST. County and Provider 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.
21. NO SOLICITATION/PAYMENT. The County and Provider 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 Provider
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.
22. NOTICE: Any notice required or permitted under this contract shall be in
writing and hand-delivered or mailed, postage prepaid by certified mail, return receipt
requested, to the other party as follows:
For Provider:
President, Monroe County of the Arts Corporation
1100 Simonton Street
Room 2-263
Florida Keys Council of the Arts Agreement 5
FY 2007
Key West, FL 33040
For Monroe County TOC:
Ms. Lynda Stuart
1201 White Street
Suite 102
Key West, FL 33040
For County:
County Attorney
P.O. Box 1026
Key West, FL 33041-1026
County shall give notice to Provider of any meetings on which is an agenda item
pertaining to Providers contract. Said notice shall be given so that Provider has ample
time to make travel arrangements for an Executive Board member to attend the
meeting.
23. TERMINATION: Either party shall have the right to cancel this contract
at its sole discretion with or without cause upon sixty (60) days prior written notice to the
other party. Provider shall deliver to the County all papers, equipment and other
material related to the work performed under this contract upon termination thereof.
24. 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 bind 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.
25. APPROVALS AND CHANGES OF SPECIFICATIONS OF SERVICES:
The TOC shall have the sole and exclusive right to approve, modify, reject, or cancel
any and all plans, proposals, submissions and other work in process, in which event the
TOC's directions shall be immediately implemented. However, nothing in this contract
shall be construed as requiring the Provider to violate any contractual commitments to
vendors contracted on TOC's behalf. All contractual commitments to contracted
vendors require the TOC's prior written approval. The County shall only be liable for
charges approved in writing prior to the Provider's entering into such contractual
commitment.
The performance of all services between Provider as described and otherwise
provided under this contract will be in full cooperation with and under the direct
supervision of the TOC. Whenever approval is required from the TOC, said approval
shall be in writing from the TOC Administrative Oirector or a designee, according to
TOC policy.
Florida Keys Council of the Arts Agreement 6
FY 2007
26. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES:
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 this Agreement, the County and Provider agree that
venue shall lie in the appropriate court or before the appropriate administrative body in
the 16th Judicial Circuit in and for Monroe County, Florida.
27. ATTORNEY'S FEES AND COSTS: The County and Provider 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.
28. ADJUDICATION OF DISPUTES OR DISAGREEMENTS. County and
Provider 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 party shall have the right to seek such relief or remedy as may be
provided by this Agreement or by Florida law.
29. 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 Provider 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 Provider specifically agree that no party to this
Agreement shall be required to enter into any arbitration proceedings related to this
Agreement.
30. BINDING EFFECT. The terms, covenants, conditions, and provisions of
this Agreement shall bind and inure to the benefit of the County and Provider and their
respective legal representatives, successors, and assigns.
31. 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.
Florida Keys Council ofthe Arts Agreement 7
FY 2007
32. NONDISCRIMINATION. County and Provider 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 Provider 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; 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.
33. 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 Provider agree that neither the
County nor the Provider 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.
34. ATTESTATIONS. Provider 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.
35. OWNERSHIP: All work performed under the contract shall be the
property of the TDC and County, for whatever use and/or disposition the TDC and
County may deem appropriate. Such property shall include: a) all plans, documents
and recommendations; b) All manuscripts, copy, graphics, and videotapes. The TDC
and County shall have the full right to reproduce and/or use any products derived from
the Provider's work under the contract without payment of any royalties, or fees.
Florida Keys Council of the Arts Agreement 8
FY 2007
36. FULL CONTRACT: This writing embodies the entire contract and
understanding between the parties hereto, and there are not other
contracts/agreements and understandings, oral or written, with reference to the subject
matter hereof that are not merged herein and superseded hereby. In order to be
effective, any amendment and/or change to this contract shall be in writing
recommended by the TDC and approved by the County and signed by both parties.
37. 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.
38. CONSTRUCTION: This contract has been carefully reviewed by legal
counsel for both parties. Therefore, this contract shall not be strictly construed against
either party on the basis of authorship.
IN WITNESS WHEREOF, the parties have executed this contract the day and year first
above written.
""'<fN'~ESS WHEREOF, the parties hereto have executed this agreement the
~y arn{yegf'ftrStabove written
;}
,($EAL) iL' .',
,Attest: Di,lnny L. Kolhage, Clerk
~c.,,&v~
r
Deputy Clerk
Board of County Commissioners
of Monroe County
~hairman
Florida Keys Council of the Arts
(CORPORATE SEAL)
Attest:
By.
Secretary
By (};~~
President
;1A0V\ ~ c.,.. 't-(r;..s k e l (
Print Name
6~t NameM) &J ....c.---
(1) &, SJ, ,J...
~~__Q ol.JS"~
Print Name
CkAUA ~)( C
(2) Witness
Print Name ft0d,\eI:;. Co/l'1~hlc.K.
MONROE COUNTY ATTORNEY
A""P\OVED AS TO FORM:
qfYYJ ~/)~~
~ sus, M. GRIMSL
ASSISTA T/OUNTY ATTORNEY
Date " 10 - 0 ~
Florida Keys Council of the Arts Agreement
FY 2007
9
Exhibit A
INVOICE
The administration and promotion of cultural/arts tourist related programs, including but
not limited to: publishing and distribution for use by tourism industry of annual calendar
of cultural events, a gallery guide and the quarterly Who What When & Where events
guide, weekly cultural calendar information provided to print media keys-wide, brochure
of locations/map of galleries/museums and other places of historic or cultural interest
for tourists. Maintain cultural/arts information services that include Monroe Council of
the Arts website (www.keysarts.com). Rotating displays of visual art at the Key West
and Marathon airport and several public buildings, including the historic Gato Cigar
Factory County Complex. Answering any inquiries from potential travelers or visitors
looking for cultural information.
Monroe Council of the Arts Corporation
The Monroe Council of the Arts Corporation certified that all services and
provisions specified within the agreement have been met for the month of_
,200
The Monroe Council of the Arts Corporation requests payment of
$3,541.67 for 11 months and $3,541.63 for one month made payable to
the Monroe Council of the Arts Corporation.
Signature
Date
Sworn to and subscribed for me this
day of
,2006
Notary Public
Personally known _
or produced identification _
Type of identification produced
...............................................................................
Monroe County Tourist Development Council
Administrative Office
Date
Florida Keys Council of the Arts Agreement 10
FY 2007