FY2015-2016 08/20/2014AMY NEAVILIN, CPA
CLERK OF CIRCUIT COURT 8 COMPTROLLER
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DATE: August 27, 2014
TO: Lynda Stuart, Office Manager
Tourist Development Council
ATTN.• Maxine Pacini
Administrative Assistant
FROM: Lindsey Ballard, D.C�y
At the August 20, 2014, Board of County Commissioner's meeting the Board granted approval and authorized
execution of the following items:
Item D1 Agreement with Key West Business Guild, Inc. to provide visitor information services
which promote gay and lesbian tourism. Agreement will commence on October 1, 2014 and terminate
on September 30, 2017 with an option to extend for one additional two-year period.
Item D2 Agreement with Florida Keys Fishing Tournaments, Inc. to oversee the TDC Fishing
Umbrella, an advisory committee to make recommendations to the TDC and BOCC concerning funding
for tourism related fishing activities and marketing.
Item D3 Agreement with Monroe Council of the Arts Corporation, d/b/a Florida Keys Council of
the Arts to supplement costs of tourist related programs.
Attached is a duplicate original of the above mentioned for your handling. Should you have any questions, please feel free to
contact our office. Thank you.
cc: County Attorney (Electronic Copy)
Finance (Electronic Copy)
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 Fax: 305-852-7146
AGREEMENT
THIS AGREEMENT ("Agreement"), made and entered into this day of
2014, A.D., by and between MONROE COUNTY, FLORIDA, (hereinafter
c Iled the "County"), and Monroe Council of the Arts Corporation, d/b/a Florida Keys
Council of the Arts (hereinafter called the "Contractor").
WITNESSETH:
WHEREAS, Contractor has requested funding to supplement costs of tourist
related programs; and
WHEREAS, Monroe County Tourist Development Council (TDC) and County
desires to fund tourist related programs; and
WHEREAS, the TDC and County finds that Contractor 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, 2014 and expiring on September 30, 2016.
2. Scope of Services: Contractor 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). Contractor 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 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, 2016.
Reimbursement shall be made to Contractor 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,
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together with supporting receipts and other applicable documents for each expense.
Contractor 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 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 Contractor 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 TDC and
County. Said payment shall occur in compliance with the Local Government Prompt
Payment Act.
4. Term of Agreement: The term of the Agreement is for two years, commencing
on the 1S day of October, 2014, and ending on the 30th day of September, 2016.
5. Contractor's Acceptance of Conditions: The Contractor hereby agrees to
carefully examine the scope of services and assumes full responsibility therefore.
Under no circumstances, conditions, or situations shall this Agreement be more
strongly construed against the County than against the Contractor.
A. Any ambiguity or uncertainty in the scope of services shall be interpreted
and construed by the County, and the County's decision shall be final and
binding upon all parties.
B. The passing, approval, and/or acceptance by the County of any of the
services furnished by the Contractor shall not operate as a waiver by the
County of strict compliance with the terms of this Agreement. Failure on the
part of the Contractor, immediately after Notice to Correct a default shall
entitle the County, if it sees fit, to correct the same and recover the reasonable
cost of such replacement and/or repair from the Contractor, who in any event
shall be jointly and severally liable to the County for all damage, loss and
expense caused to the County by reason of the Contractor's breach of this
Agreement and/or his failure to comply strictly and in all things with this
Agreement and with the specifications.
C. The Contractor agrees that the TDC may designate representatives to visit
the Contractor's facility (ies) periodically to conduct random open file
evaluations during the Contractor's normal business hours.
D. The Contractor warrants that it has, and shall maintain throughout the term
of this Agreement, appropriate licenses and permits required to conduct its
business, and that it will at all times conduct its business activities in a
reputable manner. Proof of such licenses and permits shall be submitted to
the County upon request.
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6. Contractor's Financial Records: Contractor shall maintain all books, records,
and documents directly pertinent to performance under this Agreement in
accordance with generally accepted accounting principles consistently applied. Each
party to this Agreement or their authorized representatives shall have reasonable
and timely access to such records of each other party to this Agreement for public
records purposes during the term of the Agreement and for four years following the
termination of this Agreement.
7. Public Access: The County and Contractor shall allow and permit reasonable
access to, and inspection of, all documents, papers, letters or other materials in its
possession or under its control subject to the provisions of Chapter 119, Florida
Statutes, and made or received by the County and Contractor in conjunction with this
Agreement; and the County shall have the right to unilaterally cancel this Agreement
upon violation of this provision by Contractor.
Pursuant to F.S. 119.0701, Contractor and its subcontractors shall comply with all
public records laws of the State of Florida, including but not limited to:
A. Keep and maintain public records that ordinarily and necessarily would be
required by Monroe County in order to perform the service.
B. Provide the public with access to public records on the terms and
conditions that Monroe County would provide the records and at a cost that
does not exceed the cost provided in Florida Statutes, Chapter 119 or as
otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized
by law.
D. Meet all requirements for retaining public records and transfer, at no cost,
to Monroe County all public records in possession of the Contractor upon
termination of the Agreement and destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure
requirements. All records stored electronically must be provided to Monroe
County in a format that is compatible with the information technology systems
of Monroe County.
8. Hold Harmless: The Contractor covenants and agrees to indemnify and hold
harmless Monroe County BOCC and the TDC from any and all claims for bodily
injury (including death), personal injury, and property damage (including property
owned by Monroe County) and any other losses, damages and expenses (including
attorney's fees) which arise out of, in connection with, or by reason of services
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provided by the Contractor or any of its Subcontractor(s) in any tier, occasioned by
the negligence, errors or other wrongful act of omission of the Contractor or its
subcontractors in any tier, their employees or agents.
9. Independent Contractor: At all times and for all purposes under this
Agreement the Contractor is an independent Contractor and not an employee of the
BOCC. No statement contained in this Agreement shall be construed so as to find
the Contractor or any of his employees, contractors, servants or agents to be
employees of the BOCC.
10. Nondiscrimination: The parties 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. The parties 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 I of the Civil Rights Act of 1964 (PL 88-352),
which prohibit discrimination in employment on the basis of race, color, religion, sex,
and national origin; 2) Title IX of the Education Amendment of 1972, as amended (20
USC §§ 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 § 794),
which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination
Act of 1975, as amended (42 USC §§ 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,
§§ 523 and 527 (42 USC §§ 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 §§ 3601 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 §§ 1201), as amended from time to time, relating to
nondiscrimination in employment on the basis of disability; 10) Monroe County Code
Chapter 13, Article VI, which prohibits discrimination on the basis of race, color, sex,
religion, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; and 11) any other nondiscrimination provisions in any Federal
or State statutes which may apply to the parties to, or the subject matter of, this
Agreement.
11. Assignment/Subcontract: The Contractor shall not assign or subcontract its
obligations under this Agreement, except in writing and with the prior written approval
of the BOCC and Contractor, which approval shall be subject to such conditions and
provisions as the BOCC may deem necessary. This paragraph shall be incorporated
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by reference into any assignment or subcontract and any assignee or subcontractor
shall comply with all of the provisions of this Agreement.
12. Compliance with Law: In providing all services/goods pursuant to this
Agreement, the Contractor shall abide by all statutes, ordinances, rules and
regulations pertaining to, or regulating the provisions of, such services, including
those now in effect and hereinafter adopted. Any violation of said statutes,
ordinances, rules and regulations shall constitute a material breach of this
Agreement and shall entitle the BOCC to terminate this Agreement immediately upon
delivery of written notice of termination to the Contractor. The Contractor shall
possess proper licenses to perform work in accordance with these specifications
throughout the term of this Agreement.
13. Disclosure and Conflict of Interest: The Contractor represents that it, its
directors, principles and employees, presently have no interest and shall acquire no
interest, either direct or indirect, which would conflict in any manner with the
performance of services required by this Agreement, as provided in Sect. 112.311, et
seq., Florida Statutes. 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.
Upon execution of this Agreement, and thereafter as changes may require, the
Contractor shall notify the County of any financial interest it may have in any and all
programs in Monroe County which the Contractor sponsors, endorses, recommends,
supervises, or requires for counseling, assistance, evaluation or treatment. This
provision shall apply whether or not such program is required by statute, as a
condition of probation, or is provided on a voluntary basis.
The County and Contractor warrant that, in respect to itself, it has neither employed
nor retained any company or person, other than a bona fide employee working solely
for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any
person, company, corporation, individual or firm, other 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 Contractor 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.
14. Arrears: The Contractor shall not pledge the County's credit or make it a
guarantor of payment or surety for any Agreement, debt, obligation, judgment, lien or
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any form of indebtedness. The Contractor further warrants and represents that it has
no obligation or indebtedness that would impair its ability to fulfill the terms of this
Agreement.
15. Notice Requirement: Any notice required or permitted under this Agreement
shall be in writing and hand delivered or mailed, postage prepaid, to the other party
by certified mail, returned receipt requested, to the following:
FOR TDC: Maxine Pacini
Monroe County TDC
1201 White Street #102
Key West, FL 33040
FOR COUNTY: Christine Limbert-Barrows, Assistant County
Attorney
PO Box 1026
Key West, FL 33041-1026
FOR CONTRACTOR: Executive Director, Florida Keys Council of the Arts
1100 Simonton Street
Room 2-263
Key West, FL 33040
16. Taxes: The County is exempt from payment of Florida State Sales and Use
taxes. The Contractor shall not be exempted by virtue of the County's exemption
from paying sales tax to its suppliers for materials used to fulfill its obligations under
this Agreement, nor is the Contractor authorized to use the County's Tax Exemption
Number in securing such materials. The Contractor shall be responsible for any and
all taxes, or payments of withholding, related to services rendered under this
Agreement.
17. Termination:
A. The County may terminate this Agreement for cause with seven (7) days'
notice to the Contractor. Cause shall constitute a breach of the obligations of
the Contractor to perform the services enumerated as the Contractor's
obligations under this Agreement.
B. Either of the parties hereto may terminate this Agreement without cause by
giving the other party sixty (60) days written notice of its intention to do so.
18. Governing Law Venue, Interpretation, Costs and Fees:
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A. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida applicable to Agreements made and to be
performed entirely in the State.
B. In the event that any cause of action or administrative proceeding is
instituted for the enforcement or interpretation of this Agreement, the County
and Contractor agree that venue will lie in the appropriate court or before the
appropriate administrative body in Monroe County, Florida.
C. The County and Contractor agree that, in the event of conflicting
interpretations of the terms or a term of this Agreement by or between any of
them the issue shall be submitted to mediation prior to the institution of any
other administrative or legal proceeding.
D. 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 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 Contractor agree to reform the Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the
intent of the stricken provision.
E. Attorney's Fees and Costs. The County and Contractor agree that in the
event any cause of action or administrative proceeding is initiated or defended
by any party relative to the enforcement or interpretation of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, court costs,
investigative and out-of-pocket expenses, as an award against the non -
prevailing party, and shall include attorney's fees, 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.
F. Adjudication of Disputes or Disagreements. County and Contractor agree
that all disputes and disagreements shall be attempted to be resolved by meet
and confer sessions between representatives of each of the parties. If 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.
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G. Cooperation. In the event any administrative or legal proceeding is
instituted against either party relating to the formation, execution, performance
or breach of this Agreement, County and Contractor agree to participate, to
the extent required by the other party, in all proceedings, hearings, processes,
meetings and other activities related to the substance of this Agreement or
provision of the services under this Agreement. County and Contractor
specifically agree that no party to this Agreement shall be required to enter
into any arbitration proceedings related to this Agreement.
19. Binding Effect: The terms, covenants, conditions and provisions of this
Agreement shall bind and inure to the benefit of the County and Contractor and their
respective legal representatives, successors and assigns.
20. 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.
21. Claims for Federal or State Aid: Contractor and County agree that each shall
be, and is, empowered to apply for, seek, and obtain Federal and State funds to
further the purpose of this Agreement; provided that all applications, requests, grant
proposals and funding solicitations are not for funding already provided under this
Agreement.
22. 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.
23. 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 any
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.
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24. Non -Reliance by Non -Parties: No person or entity shall be entitled to rely
upon the terms, or any of them, of this Agreement to enforce or attempt to enforce
any third -party claim or entitlement to or benefit of any service or program
contemplated hereunder, and the County and the Contractor agree that neither the
County nor the Contractor or any agent, officer or employee of either shall have the
authority to inform, counsel or otherwise indicate that any particular individual or
group of individuals, entity or entities, have entitlements or benefits under this
Agreement separate and apart, inferior to, or superior to the community in general or
for the purposes contemplated in this Agreement.
25. Attestations: Contractor agrees to execute such documents as the County
may reasonably require, to include a Public Entity Crime Statement, an Ethics
Statement and a Drug -Free Workplace Statement.
26. No Personal Liability: No covenant or Agreement contained herein shall be
deemed to be a covenant or Agreement of any member, officer, agent or employee
of Monroe County in his or her individual capacity, and no member, officer, agent or
employee of Monroe County shall be liable personally on this Agreement or be
subject to any personal liability or accountability by reason of the execution of this
Agreement.
27. 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 and any of the parties hereto
may execute this Agreement by singing any such counterpart.
28. 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.
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ESS WHEREOF, the parses hereto have cruised this ABrmnwtt to be
the day and year first above wntten.
((011PORATE SEAL)
By
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Maim oe Co11ncH of the Arts COrpOradOn, cilth
Florida Kep Camuli of the Arts
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AND TWO WITNESSES
17
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MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
CHRMNE M. U BERT BAH dW8
18T�I #_W A
10 9fTTOf�IEY
Monroe County TDC
1201 White Street
Suite 102
Key West, FL 33040
EXHIBIT A
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 Pa ee Reason Amount R .
i
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:
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201
Notary Public, State of Florida at Large
My Commission Expires: