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FY2013-2014 07/18/2012DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: July 24, 2012 TO: Lynda Stuart, Office Manager Tourist Development Council ATTN. • Maxine Pacini Administrative Assistant FROM. • Pamela G. Hanco�&C. At the July 18, 2012, Board of County Commissioners meeting, the Board granted approval and authorized execution of the following: Item C 1 Agreement with Monroe Council of the Arts Corporation, d/b /a Florida Keys Council of the Arts to provide funding to supplement costs of tourist related programs. Item C2 Amendment to the Agreement with Keys Association of Dive Operators, Inc. to exercise option to extend the agreement for two (2) additional years to September 30, 2014. Item C4 Amendment to the Agreement with Pigeon Key Foundation, Inc. to extend the termination date for the Pigeon Key Solar Energy Project (Phase 1) to December 31, 2012. Attached are electronic copies of each of the above - mentioned for your handling. Should you have any questions, please feel free to contact me. cc: County Attorney w/o documents Finance File AGREEMENT THIS Agreement (Agreement) is entered into this day of , 2012 by and between MONROE COUNTY, Florida (County), and M nroe ouncil of the Arts Corporation, d /b /a Florida Keys Council of the Arts (Provider). WITNESSETH: WHEREAS, Provider has requested funding to supplement costs of tourist related programs; and WHEREAS, County desires to fund tourist related programs; and WHEREAS, the County finds that Provider is an appropriate tourist - related program. NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. TERM The term of this agreement is for a period of two (2) years beginning October 1, 2012 and expiring on September 30, 2014. 2. SCOPE OF SERVICES Provider shall provide the following services: 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 production of an 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; and the maintenance of cultural /arts information services that include Florida Keys Council of the Arts website (www.keysarts.com). Provider shall maintain rotating displays of visual art at the Key West and Marathon airports 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. 3. COMPENSATION For the services described in paragraph 2 of agreement the County shall provide an amount not to exceed $72,500 per fiscal year, with the fiscal year commencing on October 1, and terminating on September 30, 2014. Reimbursement shall be made to Provider upon receipt of invoices showing payment for services relating to the provision and completion of the scope of services outlined in paragraph 2, and completion of Exhibit A, attached hereto, together with supporting receipts and other applicable documents for each expense. Provider shall be reimbursed an amount up to $72,500 upon receipt of invoices, together with supporting receipts and other documentation, showing prior payment for services Florida Keys Council of the Arts Agreement FY 2013 relating to the provision and completion of the scope of services outlined in paragraph 2, and completion of Exhibit A. To be eligible for reimbursement, as to each expense, the Provider must show that the expense was used directly and primarily for the promotion of tourism. Payment will be made periodically, but no more frequently than monthly. 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. 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 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 Florida Keys Council of the Arts Agreement 2 FY 2013 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, its 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. 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. 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 Florida Keys Council of the Arts Agreement 3 FY 2013 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 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 Florida Keys Council of the Arts Agreement 4 FY 2013 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 Provider 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. The Provider warrants that 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. 10 -1990 or any County officer or employee in violation of Section 3 of Ordinance No. 10 -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 County officer or employee. 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: Florida Keys Council of the Arts Agreement 5 FY 2013 For Provider: President, Florida Keys Council of the Arts 1100 Simonton Street Room 2 -263 Key West, FL 33040 For Monroe County TDC: 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 TDC 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 TDC'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 TDC's behalf. All contractual commitments to contracted vendors require the TDC's prior written approval. The County shall Florida Keys Council of the Arts Agreement 6 FY 2013 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 TDC. Whenever approval is required from the TDC, said approval shall be in writing from the TDC Administrative Director or a designee, according to TDC policy. 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 16 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 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. This agreement is not subject to arbitration. 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. Florida Keys Council of the Arts Agreement 7 FY 2013 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. 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 VII 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. Florida Keys Council of the Arts Agreement 8 FY 2013 34. ATTESTATIONS. Provider agrees to execute such documents as the County may reasonably require, including 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. 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. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Florida Keys Council of the Arts Agreement 9 FY 2013 88. CONSTRUCTION; This contract has been carefully reviewed by legs! counsel 190 both parties. Therefore, this contract shall not be strictly constnjed against,0 r party on the basis of authorship. ' 1 t (SEAL) Board of County Commissioners Attest Danny L Kolhage, Clerk of Monroe unit' Deputy Clerk Mayor/ Irman (CORPORATE SEAL) Attest By. Secretary Print Name OR (1) Witness Print Name (2) Witness Print Name MO OE COUNTY ATTORNEY RO D-A Tq fVO ASSIS ANTs;OUNTY ATTORNEY Dat IA2L— Council of the Arts Print Name P1.5 r V T ,J 'I N r-T 0 0 Florida Keys Council of the Arts Ag re i= 10 FY 2013 EXHIBIT A Monroe County TDC 1201 White Street Suite 102 Key West, FL 33040 Date: FEIN Reimbursement FY 201_ Invoice # The following is a summary of the expenses for Florida Keys Council of the Arts for the time period of: Date Check Payee Reason Amount Req. Total: Total prior payments: Total requested and paid: Total contract amount: Balance of contract: I certify that the above checks have been submitted to the vendors as noted and that the expenses are accurate and in agreement with the records of this organization. Furthermore, these expenses are in compliance with this organization's contract with the Monroe County Board of Commissioners and will not be submitted for reimbursement to any other funding source. Elizabeth S. Young, Executive Director Attachments STATE OF FLORIDA COUNTY OF MONROE SWORN TO AND SUBSCRIBED before me this day of by who is personally known to me _ presented as identification: 201 Notary Public, State of Florida at Large My Commission Expires: Florida Keys Council of the Arts Agreement 11 FY 2013