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Item D09 J BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY ( Meeting Date: FEBRUARY 18.2004 Division: TDe Bulk Item: Yes ---1L- No Department: AGENDA ITEM WORDING: Approval of an Amendment to Agreement with Smith Travel Research, Inc. to revise scope of services. ITEM BACKGROUND: TOC approved same at their meeting of January 27,2004. PREVIOUS REVELANT BOCC ACTION: Original Agreement was approved by soce at their meeting February 17, 2000. Amendment to Agreement was approved by SOCC at their meeting of November 20, 2002. CONTRACT/AGREEMENT CHANGES: Amendment to Agreement STAFF RECOMMENDATIONS: Approval TOTAL COST: $5.700 BUDGETED: Yes ----X- No COST TO COUNTY: $5.700 SOURCE OF FUNDS: TDe REVENUE PRODUCING: Yes -L.. No AMOUNTPERMONTH_ Year APPROVED BY: County Atty ....1L.- OMBIPurc~ X /7 ~sk ~~emeot ~ DIVISION DIRECTOR APPROVAL: ~~/ (Lynda Stuart) DOCUMENTATION: Included X To Follow_ Not Required_ AGENDAITEM~J DISPOSITION: Revised 2/27/01 ( ( MONROE eOUNTY BOARD OF eOUNTY eOMMISSIONERS eONTRAeTSUMMARY eontract with: Smith Travel Research eontract #_ Effective Date: 111/04 Expiration Date: 12/31104 eontract Purpose/Description: Approval of an Amendment to Agreement with Smith Travel Research, Inc. to revise scope of services. eontract Manager: Maxine Pacini 3523 TDe#3 (Name) (Ext. ) (Department/Stop #) for BOee meeting on 2/18/04 Agenda Deadline: 2/3/04 eONTRAeT eOSTS Total Dollar Value of eon tract: $ 5,700 Budgeted? Yes[gl No 0 Account eodes: Grant: $ eounty Match: $ eurrent Year Portion: $ 116-76065-530340- T 46G-25OX -530340 - - - - ----- - - - --- ADDITIONAL eOSTS Estimated Ongoing eosts: $_/yr For: (Not included in dollar value above) (e~. maintenance, utilities, ianitoria1, salaries, etcJ eONTRAeT REVIEW Division Director 1$r //21/f/1 ehanges Needed YesD NofEj Date..out eo Risk Management O.M.B./Purchasing County Attorney OMB Form Revised 2/27/01 MCP #2 ( THIS ADDENDUM to agreement is made and entered into this _ day of 2004, between the Boatd of County Commlulon8l8, Monroe County, Florida, hereinafter referred to as the County and Smith Travel Research. Inc. hereinafter referred to as .STR-. WHEREAS, there was a COntract entered into on February 17, 2000, between the parties, and WHEREAS, the contract was amended on November 20. 2002 to increase payment and expand scope of services, and WHEREAs, it has become necessary to re'lise the scope of services; NOW, THEREFORE, in consideration of the mutua' covenant& contained herein the parties agl88 to the amended agl'88ment as follows; 1. Reports as outlined in Paragraph 2, and amended in Amendment to Agreement on November 20, 2002 shall be nwIsed to l'8quire that STR no longer provide twelve (12) monthly trend reports for the 9ay-excluslve competitive set. and In place of these reports provide fifty two (52) Florfda Keys Weekly Reports commencing January 1. 2004. 2. The following pmvlslon i8 hereby added to the original agreement: -Payment under this agl8ement is contingent upon annual appropriation by the County.- 3. The remaining Provisions of the contract dated February 17. 2000, and amended November 20, 2002 remain In full foroe and effect. IN WITNESS WHEREOF, the parties have set their hands and seal on the day and year first above written. Smith Travel Research, Inc. President (SEAL) ATTEST: DANNYL.KOLHAGE,CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Deputy Clerk MayorlCha;nnan AMENDMENT TO AGREEMENT ( THIS ADDENDUM to agreement is made and entered into this _ day of 2004, between the Board of County Commissioners, Monroe County, Florida, hereinafter referred to as the County and Smith Travel Research, Inc. hereinafter referred to as "STR". WHEREAS, there was a contract entered into on February 17, 2000, between the parties, and WHEREAS, the contract was amended on November 20, 2002 to increase payment and expand scope of services, and WHEREAS, it has become necessary to revise the scope of services; NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties agree to the amended agreement as follows: 1. Reports as outlined in Paragraph 2, and amended in Amendment to Agreement on November 20, 2002 shall be revised to require that STR no longer provide twelve (12) monthly trend reports for the gay-exclusive competitive set, and in place of these reports provide fifty two (52) Florida Keys Weekly Reports commencing January 1, 2004. 2. The remaining provisions of the contract dated February 17, 2000, and amended November 20, 2002 remain in full force and effect. IN WITNESS WHEREOF, the parties have set their hands and seal on the day and year first above written. Smith Travel Research, Inc. President (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Deputy Clerk Mayor/Chairman ( ( " ADDENDUM TO AGREE~cNT This Addendum is entered into this 7 ~ tJ day of Nt) V. 2002, by and between the BOARe OF COUNTY COMMISSIONERS, Monroe County, Florida, hereinafter referred to as the COUNTY and SMITH TRAVEL RESEARCH, INC. hereinafter referred to as "STR". WITNESSETH WHEREAS, the parties entered into an agreement on February 17, 2000; and WHEREAS, the agreement allows for an extension; and WHEREAS, the agreement allows for a payment increase to be agreed upon by both client and STR; and WHEREAS, the scope of services has expanded; NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to hereby amend the agreement entered into on February 17, 2000, as follows: 1. Paragraph 1. DURATION, shall be amended by adding the following: This agreement is extended for two (2) additional years commencing January 1, 2003 and expiring on December 31, 2004. 2. Paragraph 2. REPORTS, In addition to the reports outlined in original agreement, STR shall provide twelve (12) monthly trend reports for the gay-exclusive competitive set. 3. Paragraph 3. COMPENSATION, shall be amended by adding the following: For the period of January 1,2003 through December 31,2004 STR's annual fee shall be five thousand and seven hundred dollars ($5,700), with four hundred and seventy five dollars ($475) payable per month, within ten (10) days after the last day of the month for which payment is due. ~-:----~ ~'G~(~ C aining provisions of the agreement dated February 17,2000 shall remain in full l~~ an 10 I ~ : arties hereto have agreed to the terms herein, the date first above-written. L. KOLHAGE, Clerk CZ-;;?~ Board of Co ty Commissioners of Monroe Co airman (CORPORATE SEAL) Witness President .. ( ( ( LOCAL MARKET REPORT AGREEMENT ,,{ This AGREEMENT is made effective this the /7t1, day of J~ ,2000 by and between SMITH TRAVEL RESEARCH. INC., 105 Music Village Boulevard. Hendersonville, Tennessee 37075 (hereinafter referred to as "STR"), and MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC). in care of the Monroe County Tourist Development Council. 1201 White Street. Suite 102, Key West. Florida 33040, (hereinafter referred to as "Client"). Introduction ~ STR is a leader in the lodging research industry. STR has developed a series of local market reports. which are designed to present data on the relative performance of lodging industry properties in selected competitive markets and . segments of the lodging industry. Client desires to become a participant in the local market report program. Therefore, by entering into this Agreement. Client becomes a participant in the local market report program. This Agreement outlines the obligations and responsibilities of the respective parties participating in the local market report program. Agreement In consideration of the following mutual covenants, STR and Client agree as follows: DURA nON. Client shall participate in the local market report program for a period of thirty-six (36) months, commencing January 1, 2000 (November data), and ending on December 31, 2002. (October data) Client has the option to extend this agreement for two (2) additional 12-month periods, and can do so by providing 60 days prior written notice to STR. REPORTS. As consideration for the PAYMENT described below and Client's participation in the local market report program, Client shall receive a set of twelve (12) monthly reports prepared by STR. The first set of reports shall be issued to Client on or about January 5. 2000, and subsequent reports will be forwarded thereafter to Client on or about the first week of each month. The reports forwarded to Client shall include the type of market and market segment information contained in the sample reports attached as Exhibit "A" (Lodging Outlook Survey),which is fully incorporated to this Agreement by this reference. PAYMENT. As consideration for participating in the Local Market Report program, Client agrees to pay STR for the first year of this agreement (January 1. 2000 through December 31. 2000) the total annual sum of three thousand, eight hundred forty dollars ($3,840.00), with three hundred twenty dollars ($320.00) payable per month, within ten (10) days after the last day of the month for which payment is due, and thereafter the amount shall be adjusted for CPI. Client shall also provide STR with three (3) copies of each edition of Client's local market report, newsletter, publication (if any) in which the STR data (defined below) is printed as they are published, produced and/or disseminated. Payments for subsequent years of this agreement shall be agreed upon by both Client and STR. PUBLICA nON FORMAT. If the local market report data is publiShed or re-printed by Client in a newsletter or other such periodic report that is primarily based on STR data, Client must inform STR of their intent to so incorporate such information or data and allow STR, at STR's election, to be cited as the source of such information or data. The citation of STR as the source of such data and information may include mention of STR in the masthead and/or title of the publication in such a way as to clearly indicate that the newsletter or report is a "joint publication of Client and Smith Travel Research, Inc.", "published in cooperation with Smith Travel Research. Inc." or any other suitable joint recognition requested by STR. In addition, the masthead or title must be approved by STR prior to the initial publication of such newsletter, report. or publication. Any modifications to the masthead and/or title after STR has approved the format of the same, unless re-approved by STR. shall be considered a breach of this Agreement and allow STR to terminate this Agreement immediately in accordance with the other provisions set forth below. If STR determines or otherwise agrees that the local market report data is merely a small part of the information regularly presented in Client's newsletter or periodic report (Le., in addition to other topics of discussion such as member issues and industry news), after inquiry and disclosure by Client, STR may opt to instruct Client not to include the aforementioned joint recognition of STR and Client in the masthead and/or title. ANY AND ALL REFERENCES TO OR INCLUSION OF STR'S LOCAL MARKET REPORT DATA IN ANY AND ALL TEXT, TABLES, GRAPHS, CHARTS, ETC., MUST BE CLEARLY ATTRIBUTED TO STR AS THE SOURCE OF THE ( ( DATA WHEREVER IT APPEARS AND IN WHATEVER FORM IT APPEARS. STR RESERVES THE RIGHT TO WITHHOLD MONTHLY LOCAL MARKET REPORT DATA IF CLIENTS PUBLICATION OF THE STR DATA DOES NOT cq. 1RM TO THE PROVISIONS OF THIS AGREEMENT. FURTHERMORE, IF STR DETERMINES THAT CLIENT HAS INTENTIONALLY OR REPEATEDLY FAILED TO CITE STR AS THE SOURCE OF THE DATA OR INFORMATION INCLUDED IN ANY CLIENT PUBLICATION, STR SHALL HAVE THE FURTHER RIGHT(S) TO DO SUCH THINGS AS: IMMEDIATELY TERMINATE THIS AGREEMENT, PROHIBIT CLIENT FROM FURTHER REPRODUCTION OR USE OF THE STR DATA OR INFORMATION, OR BRING A CAUSE OF ACTION AGAINST CLIENT FOR INFRINGEMENT OF STR'S COPYRIGHTS. IF STR EXCUSES ANY FAILURE BY CLIENT TO CITE STR AS THE SOURCE OF THE DATA AND INFORMATION ATTRIBUTABLE TO STR, AND STR THEREFORE WAIVES A RIGHT OF ACTION AGAINST CLIENT, SUCH WAIVER OR ACQUIESCENCE SHALL NOT BE CONSTRUED AS A WAIVER OF EACH OR ANY SUBSEQUENT RIGHT OF ACTION, OCCURRENCE OR BREACH BY CLIENT. DEFAULT. In the event that Client shall not make payment when due, STR shall be under no obligation to provide monthly reports to Client until such time as the overdue payment is paid. In the event that payment shall remain unpaid for a period of 60 days after its due date, this Agreement shall automatically terminate and otherwise become null and loid, and STR shall have no further obligations; provided, however. that STR shall have the right to declare due and Jayable all sums due under the terms of this Agreement. lEFAUL T COSTS. In the event of Client's default under the terms of this Agreement, STR shall be entitled to receive 'rom Client. in addition to all other amounts due, the costs of collection, including reasonable attorney's fees, incurred in he collection of amounts due under the terms of this Agreement. )WNERSHIP OF THE DATA. All of STR's data. without regard to the form or content of the report in which it is 1corporated. is, will be. and shall remain STR's exclusive property and proprietary information. Client shall not license or ;ubr"'nse, or in any way lay claim, in copyright or otherwise. to any of STR's data or information for any reason, nor shall :Ii. ,nable any third party to do any of the same. The parties agree that any and all data sets. information, and reports, 'respective of form. prepared by STR and provided to Client are not and do not constitute works for hire under the opyright laws. STR has the right to authorize and assign publication rights of the local market report data under this .greement to other subscribers of the local market report program. STR recognizes that upon provision of any reports to :lient, those documents become public records and are subject to Florida Statutes (F.S.), Chapter 119. Section 19.07(1)(a), F.S. requires the TDC to permit such records to be inspected by any person desiring to do so, and to provide copy of said record upon payment of a duplication fee. Iient shall credit STR as the source of the data in each publication using local market report data with the following :Jtation: SOURCE: COPYRIGHT 2000. SMITH TRAVEL RESEARCH, ALL RIGHTS RESERVED Jch notation shall conspicuously appear immediately below or in conjunction with any and all graphs, charts, tables, etc. !rived by Client from STR's data. and all such graphs, charts, tables, etc. shall become the property of STR, because of ient's derivation of STR's data. However, STR shall not be liable for, and shall be indemnified by Client from, any and liability due to Client's improper or inaccurate derivation of the STR data. Documents and reports which have been oduced on paper and have become public records in the Client's custody shall be retained by Client. The production Ider Section 119.07, F.S. is for informational purposes only and not for commercial release. The County has no policy owing commercial use of the Client's public records other than those specifically developed for commercial use by the ient. Ion termination of this Agreement for any reason, or, with respect to any particular data, on such earlier date that such ta will be no longer required by Client in order to perform under this Agreement, such data will be either erased from the ta files maintained by Client or. if STR so elects, Client shall return the data to STR. Any such erasure of STR's data I. ' verified and confirmed in writing by Client. Documents and reports which have been produced on paper and have ~ ~ public records in the Client's custody shall be retained by Client. ( ( CLIENrs USE OF THE STR DATA. Client is authorized to use STR data, results and/or the local market reports in the operation of its business. The initial Historical TREND data (if any) supplied by STR to Client is confidential and proprietary information, and the Client shall not disclose the Historical TREND data to any person or entity not authorized in writing to receive such information. Client shall not make or report any projections regarding room rates, in its advertising or marketing efforts or in any of its publications. that are based on the information presented in the local market report. Client expressly agrees and understands that the data contained in any and all STR reports is of extraordinary value to STR. Furthermore, any and all forecasts and/or projections provided by Client and included with any data belonging to STR shall be clearly and conspicuously referenced as the projection or forecast of the Client and not STR so that all associated liability rests on Client and not STR. To the extent Client desires to disclose any of STR's data or confidential or proprietary information, for any purpose, to anyone or any entity outside of Clienfs own internal business operations, Client agrees to protect the secrecy, confidentiality. and proprietary nature of STR's data and information by: (i) first informing STR in writing of the identity of the intended recipient of the disclosure, AND specifying the purpose of the disclosure, in order to provide STR with an opportunity to refuse authorization of such intended disclosure; (ii) requiring the intended recipient to sign a suitable confidentiality agreement between Client and the recipient protecting STR's data and information; and, (iii) delivering a copy of the signed confidentiality agreement to STR. Prior to using local market report data in its publications, advertising or marketing efforts, Client agrees to provide STR with a copy of the proposed publication masthead, advertisement, or marketing plan to the extent STR believes necessary to protect the integrity of STR's product. STR and Client further agree that STR has the right to amend or change the masthead, advertisement. marketing plan or other materials to the extent STR believes necessary to give proper attribution to STR. or to protect the integrity and secrecy of STR's data and information. If STR determines that its data, results, and/or the local market report(s) have been misstated, misquoted, used in any manner as to be misleading, or in any way reflect negatively upon STR's product, STR shall have the absolute right to revoke its authorization for client to use such data, results, and/or the local market report. DISCLAIMER. Client acknowledges the local market reports are generated from information received through independent surveys and research from sources considered reliable in the hotel and motel industry. STR will use its best efforts to insure the information contained in the local market reports are accurate and complete. STR TAKES NO RESPONSIBILITY FOR THE ACCURACY AND VALIDITY OF THE RAW DATA PROVIDED TO STR FOR USE IN ITS LOCAL MARKET REPORT(S). CLIENT AGREES THAT STR SHALL NOT BE LIABLE FOR DAMAGES INCLUDING CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OF ITS DATA AND/OR THE LOCAL MARKET REPORT(S). STR MAKES, AND CLIENT RECEIVES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE PERFORMANCE OF DATA OR THE RESULTS THAT MAY BE OBTAINED USING THE DATA. ACCORDINGLY, THE DATA IS LICENSED "AS IS" WITHOUT WARRANTY AS TO ITS PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE DATA IS ASSUMED BY CLIENT. LIMITATION OF STR LIABILITY. The parties further agree that in no event shall STR's.total liability relating to STR's performance under this agre~ment, or any report or data provided to Client by STR, exceed the sums payable by Client and received by STR, and in no event shall STR be liable for special, indirect, consequential, incidental, or exemplary damages. MODIFICA TION. This Agreement represents the entire understanding between the parties and there are no representations. agreements or understandings either oral or written, other than those set forth in this Agreement. Any modification to this Agreement shall be in writing signed by both parties. CHOICE OF LAW. This Agreement shall be construed under the laws of the State of Florida. The parties further agree that the Court of Competent Jurisdiction be the United States District Court for the Southern District of Florida, or Courts of the 16th Circuit of the State of Florida. The parties to this agreement sign below, intending to create a legally binding, agreement. ( ( INDEMNIFICATION. Smith Travel Research covenants and agrees to indemnify and hold harmless Monroe County Board of County Commissioners from any losses, damages. and expenses (including attorney's fees) which arise out of, in connection with. or by reason of services provided by Smith Travel Research. occasioned by the negligence, errors, or other wrongful act or omission of Smith Travel Research or its employees, or agents. ( 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. 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 Monr. unty government or the TDC has any interest. financially or otherwise, in the FIRM or its subcontractors. ~~~, ~~ \t ';... F.,~.\ \"'~. o ~ ~, :- ,") ':'J Board of County Commissioners ': ~~ ~.r io~~~ge, Clerk of Monroe County ~~. ~i€!t; \-)';,~; t1rye ~~ ."" ' -;;;: '.J '.- >1' Q,) ~ " '-.';'~)p"" Mayor/Chairman WITNESS: Smith Travel Research, Inc. By. ( f - CIl: III ~I ~- CIl: !III ...~ ... >-~ ~ CIl: :z: i= :II ~ffi -~ ~~ ~ ~~ :a :z ~ (; ~ 8 ~ III ~o ~~ III ... C o o ... III~ ~i ~c ~ ~~ ~III ~ III ... ~ ~ ! CIl: - ! ~ ... :z III u CIl: III 4- >- U ~ 4- i3 ~ ct :z: u ac ct :z: u ac ct :z: u ac ct :z: u ac ! - c.::I :z: u ac I - ! - N ,., ~ GO 00 on ,., o N . :;; - It on ,., - II! ~ ,., $ -I -I ~ .., N ,..: II! 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