Item E9
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
APRIL 20, 2000
Division: TDC
Bulk Item: Yes XXX No
Department:
N/A
AGENDA ITEM WORDING:
Approval of an Agreement with The Market Share Company, Inc. to provide
mail fulfillment services to promote and advertise the Florida Keys resulting
from the data collected by the five (5) chambers of commerce.
ITEM BACKGROUND:
TDC approved same at their meeting of March 14, 2000.
PREVIOUS RELEVANT BOCC ACTION:
BOCC approved FY 2000 budget at their meeting of September 22, 1999.
STAFF RECOMMENDATION:
Approval
TOTAL COST: Not to exceed $80,000 per year
BUDGETED: YES
COST TO COUNTY: Not to exceed $80,000 per yearlTOURIST PAY
APPROVED BY: County Attorney~ OMB/Purchasing~ Risk Management X
DIVISION APPROVAL: ~;-
Lynda M. Stuart
(Type/print name)
DOCUMENTATION: Included: X To Follow: Not Required
Agenda Item #_a. ~
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract #
Contract with: The Market Share Company, Inc. Effective Date: 4/20/2000
Contract Purpose/Description: Approval of an Agreement with The Market Share Company, Inc. to provide
mail fulfillment services to promote and advertise the Florida Keys resulting from the data collected by the five
(5) chambers of commerce.
Contract Manager: Maxine Pacini . X3523 Tourist Development Council
(Name) (Ext) (Department)
For BOCC meeting on 4/20/2000 Agenda Deadline:4/5/2000
Contract Costs
Total Dollar Values of Contract: Not to Exceed $80,000 Current Year Portion: $
Budgeted? Yes ~ No Account Codes: 115-75035-530340-T05E-230 X
Grant: $
County Match: $
Estimated Ongoing Costs: $
(not included in dollar value above)
ADDITIONAL COSTS
tyro For:
(e.g. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
DATE IN CHANGES REVIEWER DA TE OUT
NEEDED?
Yes No
Division Director ~~!~ 1/ ~~ ~r0&lZJ
- -
Risk Management ~/ ')gf ~() ,/ Cl,l~~~~ 3 /:2.~ [)(j
- - ---
(//
cp AttlY 3/o3/ClD S. Hutton '3/03/ciD
- -
O.M.B./Purc ~g lR-'-//oo _.L ~;1tt-t~ 3j2L~
(Final reviewer should return con ct to originator)
Comments:
AGREEMENT FOR MAIL FULFILLMENT
THIS AGREEMENT, entered this day of , 2000,
by and between The The Market Share Company Inc. (hereinafter "Provider"), and the
Board of County Commissioners of Monroe County (hereinafter "County").
WHEREAS, the Tourist Development Council and County have individual
agreements with the five (5) chambers of commerce to provide telemarketing serices,
the County and the Tourist Development Council (hereinafter "TDC") shall contract with
the Provider for mail fulfillment services to promote and advertise the Florida Keys
resulting from the data collected by the five (5) chambers of commerce.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. Scope of Services: Provider shall process and mail material provided by
County pursuant to data downloaded from each of five chambers of commerce in the
Florida Keys. Down loading shall occur each Monday through Friday between the
hours of 9:00 a.m. and 11 :00 a.m. to the TDC office central computer unit. Mailing
information will then be down loaded from the central unit to the The Market Share
Company Inc. Only TDC approved materials may be inserted and mailed. Mailing
information is to be used for TDC business only. Provider shall ink jet address with a
bar-code, insert advertising and promotional materials as described below, and place
each piece into U.S. mail according to the following specifications:
(a) District Fulfillment Insertion and Label: Up to five (5) brochures or
similar promotional materials shall be inserted into envelopes ink jet addressed with a
bar-code to send pursuant to data downloaded from the five chambers of commerce.
The envelopes shall be #11 Ink jet process only. Mail shall be bulk-mail or first-class as
further specified in sub-paragraph (e).
(b) Keys Guide Insertion and Label: A guide to the Florida Keys and
Key West shall be mailed, per direction in sub-paragraph (d), with a pre-printed indesia,
in a 6-1/4" x 9-1/2" envelope bar-coded and labeled pursuant to data downloaded from
the five (5) chambers of commerce, with the total weight of 6.60 ounces. Ink jet
process only. Mail shall be bulk-mail or first-class as further specified in sub-paragraph
(e).
(c) Case and Tube Handling: Provider shall mail out case and tube
mailings per County request
(d) Provider shall store three months supply of the materials supplied
by County for mail-out. Provider shall be reimbursed the cost of storage of collateral
materials, including applicable taxes, in excess of the three month supply.
(e) Provider shall mail out first-class mail, as required by the
downloaded data, within twenty-four (24) hours of receipt of data, and bulk mail, as
required by the downloaded data, within forty-eight (48) hours of accumulating sufficient
number of bulk-mail pieces to qualify for U.S. Postal Service bulk-mail rates. County
shall pay for the rental of a postage meter compatible with Provider's mailing machine
of Providers choice and used solely for County. Any postal cost required by the U.S.
Postmaster shall be paid directly to the U.S. Postmaster by County.
(f) Provider shall insert written materials into the envelopes with
machines except where in size of the material is incompatible with Provider's equipment
described in Provider's price quote which is incorporated herein by reference.
(g) Provider shall issue to County the following monthly reports:
Inventory Report: Reporting, beginning inventory plus material
received less material mailed out, and ending inventory.
Postage Accounts Reconciliation Report: Reconciliation of postage
funds in first class meter account and bulk mail account.
2. Term: This agreement shall commence on the first day of June, 2000,
and terminate on May 31, 2003. County may elect to renew this agreement for an
additional one year period, subject to an annual adjustment in the monetary terms.
Either party shall have the right to cancel this contract with or without cause upon
providing ninety (90) days written notice to the other party. Firm shall deliver to County
all papers and other materials related to the work performed under this contract upon
termination thereof. The County shall not be responsible for any expenses incurred by
FIRM after the effective date of termination.
3. Compensation:
a. Provider shall charge eighteen thousand ($18,000) dollars as an
annual administration fee to cover costs of preparing reports, maintaining equipment,
downloading time, three (3) months storage and other administration costs. Payment
will be made in monthly installments of fifteen hundred ($1,500) dollars.
b. Provider shall receive .23 cents per piece processed in
consideration for the District Fulfillment Insertion and Label and Keys Guide Insertion
and Label services described in paragraph 1, sub-paragraphs (a) and (b) in accordance
with all specifications of paragraph 1. Provider shall receive five dollars and seventy
five cents ($5.75) per each pre-packed box or case for handling and one dollar and
twenty five ($1.25) cents per poster tube handling.
c. Provider will be responsible for the removal, transport and disposal
of unused outdated collateral material as directed by the TDC. All costs associated with
this service is reimbursable by the TDC.
d. The compensation under this agreement shall not exceed eighty
thousand dollars ($80,000), annually, subject to CPI increase if renewal is elected, and
is subject to availability of funds.
e. Monroe County's performance and obligation to pay under this
contract, is contingent upon an annual appropriation by the Board of County
Commissioners.
4. Records - Access and Audits: The Provider shall maintain adequate and
complete records to justify all charges, expenses and costs incurred in performing the
work for at least three (3) years after completion of this agreement. The County shall
have access to such books, records, and documents concerning the contracted
services. The access to and inspection of such books, records, and documents by the
County shall occur at any reasonable time. Provider understands that it shall be
responsible for repayment of any and all audit exceptions identified by County. Any
current or subsequent contract awards will be offset by the amount of any audit
exceptions. In the event there are not funds still held by County for a contract award,
the amount of audit exception shall be billed to Provider who shall promptly pay same.
2
5. Independent Contractor Relationship: The Provider, 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 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, agreement, or representation other than specifically provided for
in this agreement. The County shall at no time be legally responsible for any
negligence on the part of said contractor, 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 agreement 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. Insurance: See "Exhibit A" for insurance requirements.
9. 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 agreement or otherwise related to activity conducted in the furtherance of
this agreement 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 agreement and will cooperate
with the County in the investigation arising as a result of any suit, claim or action related
to this agreement.
10. Permits: The Provider shall secure all required permits, and/or licenses
necessary for this project.
11. Laws and Regulations: (a) 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. Should Provider be incorporated in, and/or perform
services under this agreement in, a state other than Florida, Provider shall comply fully
with the laws and regulations of all applicable states, including the State of Florida.
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. Provider agrees for venue
of any dispute to lie in Monroe County, Florida. .
"'I
.)
(b) Provider shall comply with all laws, including but not limited to:
(1) The National Environmental Policy Act of 1969 (42 U.S.C. s. 4321 et
seq.) and 24 C.FR. Part 59:
(2) Executive Order 11988, Flood plain Management;
(3) Executive Order 11990, Protection of Wetlands;
(4) The Endangered Species Act of 1973, as amended (16 U.S.C. s. 1531 et
seq.);
(5) The Fish and Wildlife Coordination Act of 1958, a amended, (16 U.S.C. s
661 et seq.);
(6) . The Wild and Scenic Rivers Act of 1968, as amended, (16 U.S.C. s 1271
et seq.);
(7) The safe Drinking Water Act of 1974, as amended (42 U.S.C. s 300f et
seq.);
(8) Section 401 (f) of the Lead-Based Paint Poisoning Prevention Act, as
amended (42 U.S.C. s 4831 (b) et seq.);
(9) The Clean Air Act of 1970, as amended (42 U.S.C. s. 7401 et seq.);
(10) The Federal Water Pollution Control Act of 1072, as amended (33 U.S.C.
s 1251 et seq.);
(11) The Clean Water Act of 1977 (Public Law 95-217);
(12) The Solid Waste Disposal Act, as amended by the Resource
Conservation
and Recovery Act of 1975 (42 U.S.C. s. 6901 et seq.);
(13) Noise Abatement and Control: Departmental Policy Implementation
Responsibilities, and Standards, 24 C.F.R. Part 52; Subpart B;
(14) Flood Disaster Protection Act of 1973, P.L. 93-234;
(15) Protection of Historic and Cultural Properties under HUD Programs, 24
C.F.R. Part 59;
(16) Coastal Zone Management Act of 1972, P.L. 92-583
(17) Executive Order 11593, "Protection and Enhancement of The Cultural
Environment";
(18) Architectural and Construction Standards;
(19) Architectural Barriers Act of 1968, 42 U.S.C. 4151;
(20) Executive Order 11296, relating to evaluation of flood hazards;
(21) Executive Order 11288, relating to the prevention, control and abatement
of water pollution;
(22) Cost-Effective Energy Conservation Standards, 24 C.F.R. Part 39;
(23) Section 8 Existing Housing Quality Standards, 24 C.F.R. Part 882;
(24) Section 319 of Public Law 101-121, as provided in the "Government wide
Guidance for New Restrictions on Lobbying; Interim Final Guidance"
published in the December 20, 1989 Federal Register, which prohibits
recipients of federal contracts or grants from using appropriated funds
for lobbying in connection with a grant or contract, and requires that
each which requests or receives a federal contract or grant, and their
sub-recipients, disclose lobbying undertaken with non-fed~ral funds
(See attachment D); and .
4
(25) Executive Order No. 11246 of September.
(c) The Provider shall comply with all federal, state and local laws and
ordinances applicable to 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 County
to terminate this agreement immediately upon delivery of written notice to the Provider.
12. Taxes: The County s exempt from Federal, Excise and State of Florida
Sales Tax.
13. Finance Charges: The County 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 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 agreement. The Provider shall notify
the TOC of any delay or failure to perform within five (5) days of such action. Upon
demand of TOC, 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.
16. 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 agreement shall be binding upon the Provider's successors and assigns.
17. 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.
18. Advertising: Prior to any advertising, publicity, or promotional materials
initiated by the Provider relating to the services under this agreement, the Provider
shall obtain prior written approval regarding said promotional material for the TOC
before such material can be released. Materials shall be presented to th~ TOC for
approval and shall be returned to the Provider in a timely manner. All promotional
5
material related to services under this agreement shall include references to the Florida
Keys and Key West, and the Monroe County Tourist Development Council.
19. 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.
20. Independent Professional Judgment: 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.
21 . 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 eql:Jipment and any maintenance or service
contracts relating to such equipment for its service life.
22. 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.
23. 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 party as follows:
To Provider:
The Market Share, Inc.
605 United St.
Suite 1
Key West. Florida 33040
To County:
TDC Administrative Office
1201 White St.
Suite 102
Key West, FL 33040
County shall give note to Provider of any meetings on which is an agenda item
pertaining to telemarketing. Said notice shall be given so that provider has ample time
to make travel arrangements for an Executive Board member to attend the meeting.
24. Termination: Termination of this agreement shall occur at the natural
ending date or earlier should either party terminate with or without cause.
25. Time: Time shall be of the essence as to this agreement.
26. 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
TVVO for a period of 36 months from the date of being placed on the convicted vendor
list.
27. Full Agreement: This writing embodies the entire Agreemen~ and
understanding between the parties hereto, and there are not other agreements and
6
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 Agreement shall be in writing recommended by the TDC and approved
by the COUNTY and signed by both parties.
28. 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 agreement the day and year
first above written.
(SEAL)
Attest:
The Market Share Company, Inc.
By:
(SEAL)
Attest
Monroe County Board of County
Commissioners
DANNY L. KOLHAGE, Clerk
Clerk
Mayor/Chairman
Approved as to form and legal sufficiency:
Date:
7
EXHIBIT A
1996 Edition
WORKERS' COMPENSATION
INSURANCE REQUIREMENTS
FOR
CONTRACT
BETWEEN
MONROE COUNTY, FLORIDA
AND
Prior to the commencement of work governed by this contract, the Contractor shall obtain
Workers' Compensation Insurance with limits sufficient to respond to Florida Statute 440.
In addition, the Contractor shall obtain Employers' Liability Insurance with limits of not less
than:
$100,000 Bodily Injury by Accident
$500,000 Bodily Injury by Disease, policy limits
$100,000 Bodily Injury by Disease, each employee
Coverage shall be maintained throughout the entire term of the contract.
Coverage shall be provided by a company or companies authorized to transact business in the
state of Florida.
If the Contractor has been approved by the Florida's Department of Labor, as an authorized self-
insurer, the County shall recognize and honor the Contractor's status. The Contractor may be
required to submit a Letter of Authorization issued by the Department of Labor and a Certificate
of Insurance, providing details on the Contractor's Excess Insurance Program.
If the Contractor participates in a self-insurance fund, a Certificate of Insurance will be required.
In addition, the Contractor may be required to submit updated financial statements from the fund
upon request from the County.
wel
Administration Instruction
#4709.2
88
1996 Edition
GENERAL LIABILITY
INSURANCE REQUIREMENTS
FOR
CONTRACT
BETWEEN
MONROE COUNTY, FLORIDA
AND
Prior to the commencement of work governed by this contract, the Contractor shall obtain
General Liability Insurance. Coverage shall be maintained throughout the life of the contract and
include, as a minimum:
· Premises Operations
· Products and Completed Operations
· Blanket Contractual Liability
· Personal Injury Liability
· Expanded Definition of Property Damage
The minimum limits acceptable shall be:
$300,000 Combined Single Limit (CSL)
If split limits are provided, the minimum limits acceptable shall be:
$100,000 per Person
$300,000 per Occurrence
$ 50,000 Property Damage
An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its
provisions should include coverage for claims filed on or after the effective date of this contract.
In addition, the period for which claims may be reported should extend for a minimum of twelve
(12) months following the acceptance of work by the County.
The Monroe County Board of County Commissioners shall be named as Additional Insured on
all policies issued to satisfy the above requirements.
GLl
Administration Instruction
#4709.2
54
1996 Edition
VEHICLE LIABILITY
INSURANCE REQUIREMENTS
FOR
CONTRACT
BETWEEN
MONROE COUNTY, FLORIDA
AND
Recognizing that the work governed by this contract requires the use of vehicles, the Contractor,
prior to the commencement of work, shall obtain Vehicle Liability Insurance. Coverage shall be
maintained throughout the life of the contract and include, as a minimum, liability coverage for:
· Owned, Non-Owned, and Hired Vehicles
The minimum limits acceptable shall be:
$100,000 Combined Single Limit (CSL)
If split limits are provided, the minimum limits acceptable shall be:
$ 50,000 per Person
$100,000 per Occurrence
$ 25,000 Property Damage
The Monroe County Board of County Commissioners shall be named as Additional Insured on
all policies issued to satisfy the above requirements.
VLl
Administration Instruction
#4709.2
81
1996 Edition
RISK MANAGEMENT
POLICY AND PROCEDURES
CONTRACT ADMINISTRA nON
MANUAL
General Insurance Requirements
for
Other Contractors and Subcontractors
As a pre-requisite of the work governed, or the goods supplied under this contract (including the
pre-staging of personnel and material), the Contractor shall obtain, at his/her own expense,
insurance as specified in any attached schedules, which are made part of this contract. The
Contractor will ensure that the insurance obtained will extend protection to all Subcontractors
engaged by the Contractor. As an alternative, the Contractor may require all Subcontractors to
obtain insurance consistent with the attached schedules.
The Contractor will not be permitted to commence work governed by this contract (including pre-
staging of personnel and material) until satisfactory evidence of the required insurance has been
furnished to the County as specified below. Delays in the commencement of work, resulting from
the failure of the Contractor to provide satisfactory evidence of the required insurance, shall not
extend deadlines specified in this contract and any penalties and failure to perform assessments
shall be imposed as if the work commenced on the specified date and time, except for the
Contractor's failure to provide satisfactory evidence.
The Contractor shall maintain the required insurance throughout the entire term of this contract
and any extensions specified in the attached schedules. Failure to comply with this provision may
result in the immediate suspension of all work until the required insurance has been reinstated or
replaced. Delays in the completion of work resulting from the failure of the Contractor to
maintain the required insurance shall not extend deadlines specified in this contract and any
penalties and failure to perform assessments shall be imposed as if the work had not been
suspended, except for the Contractor's failure to maintain the required insurance.
The Contractor shall provide, to the County, as satisfactory evidence of the required insurance,
either:
.
Certificate of Insurance
or
· A Certified copy of the actual insurance policy.
The County, at its sole option, has the right to request a certified copy of any or all insurance
policies required by this contract.
All insurance policies must specify that they are not subject to cancellation, non-renewal, material
change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given
to the County by the insurer.
The acceptance and/or approval of the Contractor's insurance shall not be construed as relieving
the Contractor from any liability or obligation assumed under this contract or imposed by law.
Administration Instruction
#4709.3
14
1996 Edition
The Monroe County Board of County Commissioners, its employees and officials will be included
as "Additional Insured" on all policies, except for Workers' Compensation.
Any deviations from these General Insurance Requirements must be requested in writing on the
County prepared form entitled "Request for Waiver of Insurance Requirements" and approved
by Monroe County Risk Management.
Administration Instruction
#4709.3
15