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08/28/1991 DISTRICT TELEMARKETING SERVICES WHEREAS, the Board of County Commissioners of Monroe County, wishes to enter into a contract with the Greater Marathon Chamber of Commerce to provide district telemarketing services for the Tourist Development Council; WHEREAS, the Greater Marathon Chamber of Commerce represents that it is capable and qualified to provide district telemarketing services in addition to its operation as the Chamber of Commerce, the Tourist Development Council will hereinafter be referred to as the "TDC". WHEREAS, the Board of County Commissioners has on prior occasions as of the contracts entered into on the 12th day of September, 1990; and WHEREAS, the Board of County Commissioners recognizes the unique experience and high degree of confidence that this has fostered with the Greater Marathon Chamber of Commerce; and WHEREAS, the Board of County Commissioners hereby makes a finding of fact that this proven experience, efficiency and ability will best serve the public purpose of tourism development by continuation of those services by the Greater Marathon Chamber of Commerce; and WHEREAS, the Board of County Commissioners does accordingly determine that the aforesaid public purpose underlying this contract is best served by waiver of the procurement regulations/policies and procedures for purchasing which would otherwise indicate the necessity for a Request for Proposal. This contract is made this ~ day of t1~..t4, u. ~ 'f 1991, by and between the Board of County Com'hiissioners of Monroe County, Florida, hereinafter referred to as the "County" , and the Greater Marathon Chamber of Commerce hereinafter referred to as "Provider". In consideration of the mutual covenants the parties agree as follows: 1 . Funding Availability: This agreement shall be funded from tourist funds allocated by district advisory committees and the TDC. All obligations in this contract shall be subject to the availability of funds imposed under taxes imposed within Fla. Stat. 125.0104 and the cu~t -" r- net revenues. --' m -.:1 .....'j c;~ T1 ".~ w --" (-.--) > , , ) :J ~ '-:J --' ',C I 2. District Telemarketing: The Provider's responsibility under this contract IS to provide responses to phone inquiries, which services to be performed by "Provider" for the benefit of Monroe County as a whole and not for the benefit of the "Provider", or any member or members of "Provider", but only as to the general benefit of Monroe County. These services are to be performed by "Provider" but are necessarily limited to the following: A) The "Provider" shall respond to all district phone inquiries with generic information that is all inclusive of the district and does not discriminate between Chamber and non-Chamber members. All mail fulfillment generated as a result of telephone inqUIrIeS through TDC's 1- 800 telephone network will be handled and charged for by a central fulfillment center selected by the TDC. B) Under the TDC's Networked Telephone System, the Provider will notify the TDC Administrative Office of the days of the week and hours of each day when they will respond to calls generated by the TDC's comprehensive advertising campaign, assuring that all inquiries are responded to in a timely manner. The "Provider" will give the TDC Administrative Office three (3) days notice of any changes pertaining to days or hours. If a conflict exists between "Provider" and Telemarketing center, priority shall be given to the "Provider". The networked phone calls routed through 1-800-FLA-KEYS and 1- 800 842 9580 will be automatically transferred to the appropriate provider with approval of the TDC. Call flow through the networked system shall have the ability to transfer calls to and from all points under the pre-determined auto transfer system. C) All tourist-related collateral requests shall be provided to the mail fulfillment house of record through the computer network system on a daily basis to be fulfilled in bulk by the mail fulfillment house of record and mailed utilizing "Bulk Rate" mail. D) Any collateral material to be used in the fulfillment of the District Services Agreement will be approved or disapproved by the TDC. 2 3. Contract Supervision: Services of the "Provider" shall be under the general direction of the TDC Administrative Office, telephone number (305) 296-2228, who shall act as the TDC/County representative, hereinafter referred to as "Representative", during the performance of the contract. 4. Payment: The "County" shall pay to the "Provider" for services rendered an amount not to exceed eighty-four thousand ($84.000). Said payment shall occur upon the presentation of the form Exhibit "A" evidencing that the Administrative Office hereby verifies and certifies that the requirement and duties as set forth within the contract entered into by and between the Greater Marathon Chamber of Commerce ("Provider") and the Board of County Commissioners of Monroe County ("County"), have been fully performed and that the supporting documentation therefor has been provided to the "TDC" Administrative Office, and that said documentation will be provided to the Clerk of the Circuit Court, who has accepted same and has acknowledged adequate performance by the "Provider" pursuant to said contract. All subsequent payments shall be conditioned upon the satisfactory documentation/submission of the monthly production report to the "TDC" Administrative Office whose authorized representative shall acknowledge the sufficiency thereof. A) The "County" shall pay the "Provider no less than $7,000.00 per month, the "Minimum", payable on the first day of each month beginning with October 1, 1991 and each month thereafter. B) In addition to the "Minimum", at such time as 73,043 calls have been received in each contract year, the "Provider" will receive on a monthly basis additional reimbursement of any calls over 73,043 at the rate of $1.15 per call. C) Price based upon the "County" supplying all mail fulfillment services and incoming 800 line services. If, based upon the request and direction of the "County", it is necessary to exceed the contract total, then it will be necessary to execute a supplement to this contract providing for those additional services, which shall be thereupon considered and, if deemed necessary, approved by the Monroe County Board of County Commissioners, provided sufficient funds are available and the necessity shown, and the "County" is otherwise legally, and monetarily and factually obligated and it is otherwise considered by the "County" prudent to do so. This payment is all inclusive. No other out-of-pocket expenses are reimbursable. 3 5. Hours: The "Provider" shall at a mInImUm provide sufficient personnel to respond to telephone requests during the hours of 9:00 a.m. to 5 :00 p.m., Monday through Friday, Thanksgiving and Christmas, New Year's Day, Memorial Day, Fourth of July, and Labor Day holidays excepted. 6. Normal Provider Services: A Chamber of Commerce (The "Provider" herein) is a voluntary organization of business and professional people dedicated to the economic well-being of their community. By working for a healthy economic climate of good jobs, capitol creation and honest, efficient government, a Chamber of Commerce helps to solve many community problems of a growing area. A Chamber of Commerce is not a department of local government. A Chamber of Commerce's basic function is that of economic development In a plan or philosophy accepted by its community. Community factors which affect economic development, education, culture, transportation, health care services, local government, and others may come under the scrutiny and the programs of the Chamber of Commerce. Additional functions of the Chamber of Commerce include research and information. Market statistics and facts, information about community activities are disseminated by the Chamber of Commerce to a variety of the public, economic prospects, existing businesses, mass media, the membership, newcomers, students and others. 7. Favored Nations Clause: It is additionally understood and contracted by and between the parties ("Provider" and "County") that at all times Monroe County shall be treated as one of "Provider's" preferred clients for purpose of charging the lowest possible rate that "Provider" charges to any client. It is also agreed by and between the parties that at no time shall the rates charged to the "County" ever exceed the amount charged by "Provider" to any other person, business entity, or governmental entity. If at any time the rates charges aforementioned preferred clients/customers and/or any other business or government entities fall below those rates to which the parties have herein agreed, then this contract shaJJ automatically be amended to reflect those lowered rates, costs and charges. However, at no time shall the rates be higher than those stated herein. 4 8. Term - Renewal: The term of this contract shall be for a period of twenty-four (24) months, commencing October 1, 1991, and terminating on September 30, 1993. The TDC shall, with the consent of the "County", have the option of renewing this contract by written notification to "Provider" at least six (6) months prior to the expiration date. Said renewal shall be for an additional two (2) years on the same terms and conditions as herein set forth, however, the parties shall have the option to renegotiate the payment amount. 9. Subcontracting: The "County" reserves the right, to accept or reject, with or without cause, the use of a subcontractor and/or consultant. The "Provider" is encouraged to seek minority enterprises/consultants. 10. Termination: This contract may be terminated with or without cause by the "Provider" upon one hundred-twenty (120) days prior written notice to the "County" with proof of receipt thereof (directly to the "Representative"). It may also be terminated by the "County" with or without cause upon one hundred-twenty (120) days prior written notice to the "Provider". Unless the "Provider" is in breach of this contract, the "Provider" shall be paid for services rendered to the county's satisfaction to the date of termination. Any and all product resulting from work performed by the "Provider" must be forthwith delivered to the Clerk of the Board of County Commissioners and shall be the exclusive property of the "County". 11. LiabilitieslIndemnification and Save and Hold Harmless: It is understood that the "Provider" shall be liable to the "County" for any negligent acts, malpractice (whether common or otherwise), omissions, etc. The "Provider" shall also indemnify and save and hold harmless and defend the "County", its agents, servants and employees from and against all claims, liability, losses, and/or causes of actions which may arise from any negligent act or omission or malpractice as well as any and all other and further claims, demands, or causes of action of whatsoever kind or nature arising out of any mis-conduct of the "Provider" and for which the "County", its agents, servants, and/or employees are alleged to be liable, may be liable, and/or otherwise is or may be harmed thereof by the "Provider", its agents, servants, and/or employees in the performance of services under this contract. 5 The CountyfTDC has no obligation to provide legal counsel to the "Provider" in the event of any suit, action or claim arising as a result of the performance of this contract. The CountylTDC has no obligation to pay for any judgment or settlement of any claim made against the "Provider" as a result of any activity under this contract. The "Provider" will immediately give notice to the TDC if any suit, claim or action made against the "Provider" that is related to the activity under this contract. It IS incumbent upon the "Provider" to carry appropriate insurances. 12. Successor and Assigns: Except as specifically provided, the "Provider" shall neither assign, subcontract, convey, transfer, sub-lease, pledge, hypothecate, surrender or otherwise encumber or dispose of its interest in this contract, or any interest in any portion of same, or permit any other person or persons, company or corporation or any other entity whatsoever to perform services under this contract without first obtaining the written consent of the "County". Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of the "County" nor shall it be construed as giving any rights or benefits hereunder to anyone other than the "County" and the "Provider". When and where so provided, and there exists or will exist such successor(s) and assign(s), those successor(s), assign(s), its partners, counter principles, associates, executives, administrators and (where applicable) assigns of such parties shall be bound by each and every and all covenants of this contracts. 13. Remedies: Any and all legal actions necessary to enforce this contract will be held in Monroe County, Florida and the contract will be interpreted and governed according to the laws of the State of Florida. No remedy herein conferred uron the "County" is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to any, all and every other remedy given hereunder or now or hereafter existing at law, or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power or remedy hereunder shall preclude further exercise thereof. 14. "Provider" shall not bind "County". The "Provider" will not pledge the "County's" credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgement, lien, or any form of indebtedness. Moreover, the "Provider" shall not enter into any contract(s) 6 or sub-contract(s) which, either directly or indirectly would require any expenditures of monies by the "County". The "Provider" further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this contract. Should it be necessary for the "Provider" to engage a consultant or otherwise enter into a sub- contract, the "Provider" can only do so pursuant to a full disclosure of the proposed sub-service provider and pursuant to the "County's" written consent. 15. Proprietary Rights and Public Inspection Records: Total records, as defined in Fla. Stat. Chapter 119, prepared or obtained under this contract, shall be the property of CountyffDC without restriction or limitation on their use; and shall be made available, promptly upon request, to TDC. All records prepared hereunder shall be subject to the provisions of Fla. Stat. Chap. 119. Public information will be provided on a monthly basis at cost to requesting parties. 16. 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" or the TDC. The "Provider" shall exercise control, direction, and supervision over the means and manner 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 of employees or agents of the county. Moreover, the "Provider" shall have no authority whatsoever to act on behalf of and/or as agent for the "County". The "Provider" does not have the power or authority to bind the "County" in any promise, agreement, or representation other than specifically provided for in this contract. 1 7 . 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 contract. 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. 7 18. Funding and Performance: The terms of representation under this contract and services are anticipated to extend beyond the "County's" current fiscal year. Accordingly, both parties mutually agree that performance payment during subsequent fiscal years is contingent upon funds being appropriated, allocated, or otherwise made available. 19. 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 pennitted by law. 20. Compliance with Laws - Nondiscrimination: The "Provider" shall comply with all federal, state, and local laws and ordinances applicable to the work or payment of 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 contract. This contract shall be subject to all federal, state, and local laws and ordinances. 21 . 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 subcontractors or suppliers, including labor dispute, strike, labor shortage, 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, hurricane, 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. Any such delay or failure shall not constitute a breach of this contract. Upon demand of "County", the "Provider" must furnish evidence of the causes of such delay or failure. The "Provider" shall thereafter resume its performance hereunder as soon as such resumption is reasonably practicable. 22. Standards of Conduct: The "Provider" covenants and agrees that it shall at all times comply with all applicable state and local laws, rules, regulations and ordinances governing its conduct as an independent contractor with a public agency, and shall not knowingly allow the breach 8 or violation thereof by any of its officers, directors or employees in regard to work performed under this contract. 23. Assignment: The Greater Marathon Chamber of Commerce. shall not assign, transfer, sublease, pledge, hypothecate, surrender, or otherwise encumber or 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 contact without first obtaining the written consent of the County. 24. N on-wai ver: Any waiver by the "County" of any breach of covenants herein contained to be kept and performed by "Provider" Greater Marathon Chamber of Commerce shall not be deemed or considered as a continuing waiver and shall not operate to bar or prevent the County from declaring a forfeiture for any succeeding breach either of the same condition or covenant or otherwise. 25. 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 Ordinance. The "Provider" shall disclose to the County/TDC all actual or proposed conflicts of interest, financial or otherwise, direct or indirect, involving any interest which may conflict with the interest of the CountyrrDC. 26 Antisolicitation: The "Provider" warrants that it has not knowingly employed, retained or otherwise had act on its behalf any former county officer or employee subject to the prohibition of Section 2 of Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 010-1990. For breach or violation of this provision the County may, in its discretion, terminate this contract without liability to the "Provider" and will subject the "Provider" to sanctions in accordance with the ordinances and any and all other applicable laws of Monroe County, the State of Florida and the United States of America. The County 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. 9 27. Mutuality of Contract: It is expressly understood that this agreement between the CountyrrDC and the "Provider" has been mutually negotiated and any vague terms or procedures shall not be construed to one party or another and shall be construed to both parties. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA . ... ~\ ~..t\~IGyv. ~~ ~~ By:. ~ Mayor (SEAL) Attest: DANNY L. KOLHAGE Clerk .. . . J . erk Accepted for, and beha f of, as agent for, with authority to bind By: (SEAL) At~,,~~l~ , Approved as to form and legal sufficiency by : r<j~ 10 EXHIBIT ' A ' Set-up charges of the computer and telemarketing network system shall be borne directly by the TDC and not considered as a part of this contract with said service provider. Call Char~es: Calls per month: as recorded on the computer network system. Take: Name, Address City, State, Zip, Ad Source, Arrival Date, District Code as coded or any other information as deemed necessary by agreement between Provider and TDC: $1.15 Per Call above Calls The "Provider" shall furnish the TDC a monthly computer report of calls received indicating the name, address, city, zip, arrival date, District and District code. The Administrative Office hereby verifies and certifies that the requirements and duties as set forth within the contract and entered into by and between the Greater Key West Chamber of Commerce ("Provider") and the Board of County Commissioners of Monroe County ("County"), have been fully performed and that the supporting documentation therefor, has been provided to the "TDC" Administrative Office and that said documentation will be provided to the Clerk of the Circuit Court, who has accepted same and has acknowledged adequate performance by the "Provider" pursuant to said contract. Administrative Director date: 1 1