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FY2005 03/16/2005 DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: April 4, 2005 TO: Lynda Stuart, Office Manager Tourist Development Council ATTN: Maxine Pacini Administrative Assistant FROM: Pamela G. Han~ Deputy Clerk V At the March 16, 2005, Board of County Commissioner's meeting the Board granted approval and authorized execution of the following: Agreement between Monroe County and Barley's Bay Festival, Inc. covering Barley's Bay Music Festival on May 21, 2005 in an amount not to exceed $10,000, DAC V, FY 2005, Third Penny Event Resources. Amendment to Agreement between Monroe County and Smith Travel Research, Inc. to amend scope of service to allow for an additional report, and increase compensation for additional report. Turn Key Events Agreement between Monroe County and Classic Sports Events, Inc. covering the Holiday Isle Classic on November 27 through December 4,2005 in an amount not to exceed $40,000, DAC IV, FY 2005 Event Funding. Agreement between Monroe County and The Florida Keys History of Diving Museum, Inc. for the History of Diving Museum - Phase IB in an amount not to exceed $116,021, DAC IV, FY 2005, Third Penny Capital Project Resources. J Turn Key Events Agreement between Monroe County and Key West Tourist Development Association covering Fantasy Fest on October 21-30, 2005 in an amount not to exceed $95,000, DAC I, FY 2005 Event Resources and $5,000, DAC II, FY 2005 Event Resources. Destination Events Agreement between Monroe County and Upper Keys Youth Soccer, Inc. covering the Upper Keys Youth Shootout on October 1-2, 2005 in an amount not to exceed $5,000, DAC IV, FY 2005 Event Resources. Turn Key Events Agreement between Monroe County and Super Boat International Productions, Inc. covering the Marathon Super Boat Grand Prix 2005 in an amount not to exceed $71,000, DAC III, FY 2005 Third Penny Event Resources. Amendment to Agreement between Monroe County and Florida Keys Fishing Tournaments, Inc. to revise Exhibit A showing members of the Fishing Umbrella Recommendation Committee. Enclosed are two duplicate originals of each of the above-mentioned for your handling. Should you have any questions please do not hesitate to contact this office. cc: County Administrator w/o documents County Attorney Finance File Turn Kev Events Aareement This AGREEMENT dated the J& 1!... day of /J(ZU.L 2005, is entered into by and . between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY, hereinafter "County" or "BOCC," on behalf of the TOURIST DEVELOPMENT COUNCIL, hereinafter "TDC" and Key West Tourist Development Association, hereinafter "Event Sponsor". WHEREAS, Event Sponsor has proposed the presentation of a Turnkey Event as described below; and WHEREAS, the BOCC finds it in the best interest of the County to promote tourism by entering into this agreement, NOW, THEREFORE, and in consideration of the mutual covenants, contained herein the parties agree as follows: 1. The BOCC agrees to pay from tourist development tax funds $120,000 (One Hundred and Twenty Thousand Dollars) for Fantasy Fest on October 21-30, 2005, provided Event Sponsor meets all of its obligations under this agreement. 2. ScoDe of Services: Event Sponsor agrees to provide the County with an event as specified in the Scope of Services described in the funding application, including the following: 1. Event Sponsor shall provide national or international marketing exposure which will guarantee TV, radio and newspaper marketing coverage 2. A one day Street Fair with food, beverage, and arts and crafts vendors 3. An evening Masquerade March through the streets, originating at the City Cemetery and terminating at the Street Fair 4. A Duval Street Promenade of food and beverage vendors 5. Provide Fantasy Fest parade 6. Coordination and promotion of a minimum of thirty (30) activities sanctioned by Fantasy Fest 3. Payment: Payment of the sum set forth in Section 1 above will be made upon the completion of the event and upon national and/or international marketing exposure pre or post event. Upon receipt from Event Sponsor of a proper invoice with documentation, reviewed and verified by the Tourist Development Council (TDC) Administrative Office, Fantasy Fest 2005 1 proving that event has been produced and promoted through print advertising, news releases, and the required insurance was obtained no less than twenty days prior to the event, BOCC shall pay pursuant to the Florida Prompt Payment Act. Monroe County's performance and obligation to pay under this contract is contingent upon an annual appropriation by the BOCC. 4. Accountino: Event Sponsor 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. If an auditor employed by the County or Clerk determines that monies paid to Contractor pursuant to this Agreement were spent for purposes not authorized by this Agreement, the Event Sponsor shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to Event Sponsor. 5. Modification: Any changes to this contract may be made only by written mutual agreement, recommended by the TDC and approved by the BOCC. 6. Termination: This Agreement will terminate on January 31, 2006, unless earlier terminated pursuant to Section 7 below. All invoices must be submitted prior to January 31,2006. 7. Non Occurrence of f;vent: Event Sponsor shall give written notice to the Monroe County Tourist Oevelopment Council if it is found necessary to cancel an event. The notice shall contain the following specifics: 1) reason for cancellation, 2) documentation of the reason for cancellation and 3) person authorized to cancel including title and stated affiliation. 8. Indemnification and Hold Harmless: Event Sponsor agrees to indemnify and hold harmless Monroe County Board of County Commissioners 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 the event sponsored by Event Sponsor. 9. Insurance Reauirements: Event Sponsor, as a pre-requisite of the Special Event governed by this agreement, shall obtain, at its own expense, insurance as specified in this section: Work associated with the Event (including pre-staging of personnel and material) shall not commence until satisfactory evidence of the required insurance has been furnished to the County as specified below. Event Sponsor shall maintain the required insurance throughout the entire duration of the Special Event, and any extensions specified in any attached schedules. Failure to comply with this provision shall release County of any obligation to compensate event sponsor. Further, any material misstatement in the application for Fantasy Fest 2005 2 insurance coverage shall release County from it's obligations to pay under this agreement. Event Sponsor shall provide, to the County, as satisfactory evidence of the required insurance, including the insurance policy application and either: .. Original Certificate of Insurance or .. Certified copy of the actual insurance policy An original certificate or a certified copy of any or all insurance policies required by this contract shall be filed with the Clerk of the BOCC prior to the Event. The Insurance policy must state that the Monroe County BOCC and Monroe County TDC is the Certificate Holder and additional Insured for this event. Insurance should be mailed to: Monroe County Board of County Commissioners C/O Risk Management P.O. Box 1026 Key West, FL 33041 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. Acceptance and/or approval of Event Sponsor "s insurance shall not be construed as relieving Event Sponsor from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commi$Sioners, its employees and officials will be included as "Additional Insured" on all policies. Any deviations from these General Insurance Requirements must be requested in writing on the County form titled "Request for Waiver of Insurance Requirements" and must be approved by Monroe County Risk Management. Event Sponsor shall furnish the County with a certificate evidencing the insurance required by this paragraph not later than twenty (20) days prior to the event. Prior to commencement of work governed by this contract, Event Sponsor shall obtain General Liability Insurance Coverage that 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: * $1,000,000.00 combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: Fantasy Fest 2005 3 * $500,000.00 per Person * $1,000,000.00 per Occurrence ... $100,000.00 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. 10. Permits: Event Sponsor will secure all required permits, licenses including but not limited to occupationallicensesl 11. Laws and Reaulations: Any and all services, materials and equipment shall comply fully with all Local, State and Federal laws and regulations. 12. Taxes: The BOCC and TDC are exempt from Federal Excise and State of Florida Sales Tax. 13. Finance C;haroes: The BOCC and TDC will not be responsible for any finance charg\s. 14. Relation of BOCCITDC: It is the intent of the parties hereto that Event Sponsor shall be legally considered as an independent contractor and that neither it nor its employees shall, under any circumstances, be considered servants or agents of the BOCC and TOe, and the BOCC and TDC shall at no time be legally responsible for any negligence on the part of said Event Sponsor, its employees or agents, resulting in either bodily or personal injury or property damage to any individual, firm, or corporation. 15. Oisclosure: Event Sponsor shall be required to list any or all potential conflicts or interest, as defined by Florida Statute 112 and Monroe County Code. Event Sponsor shall disclose to the BOCC and TDC 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 BOCC and TOC. 16. Assionment: Event Sponsor shall not assign, transfer, convey, sublet or otherwise dispose of this agreement, or of any or all of its right, title or interest therein, or his or its power to execute such agreement to any person, company or corporation without prior consent of the TDC and BOCC. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Event Sponsor and their respective legal representatives, successors, and assigns. 17. Nondiscrimination: County and Event Sponsor agree that there will be no discrimination against any person, and it is expressly understOod that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement.automatically terminates without any further action on the part of any party, effective the date of the court order. County and Event Sponsor agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include Fantasy Fest 2005 4 but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC $S. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd- 3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9} The Americans with Disabilities Act of 1990 (42 use s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex, religion, disability, 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. 18. Security Protection: Event Sponsor agrees to provide adequate security for the event. 19. Ethics Clause: Event Sponsor warrants that it has not employed, retained or other wise had act on its behalf, any former County office or employee in violation of Section 2 or Ordinance No. 10-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 10-1990. For breach or violation of the provision the County may, at its discretion terminate this agreement without liability and may also, at its discretion, deduct from the agreement or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former or present County officer or employee. 20. Loco: All promotional literature and display advertising with the exception of generic advertising must display the "Florida Keys & Key West, Monroe County Tourist Development Council Come As You Are" logoltrade mark (as per enclosed). This logo/trade mark was adopted by the TDC and County in November 2000. Radio Advertising should read "Brought to you by the Monroe County Tourist Development Council". No reimbursement or direct payment will be considered unless this logo/trade mark is utilized. 21. Severability: If any provision of this Agreement shall be held by a Court of competent jurisdiction to be invalid or unenforceable, all remaining provisions shall not be Fantasy Fest 2005 5 affected thereby; and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 22. Authoritv: Each of the signatories for the sponsor below certifies and warrants that: a) The sponsor's name in the agreement is the full name as designated in its corporate charter, and b) they are empowered to act and execute agreement for the sponsors and c) this agreement has been approved by the sponsor's Board of Directors. 23. Public Entitv Crimes: "A person or affiliate who has been placed on the convicted vendor list following a convidion 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 bid 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 contrador, supplier, subcontractor, or consultant under a contrad 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". 24. Force Maieure: The Event Sponsor shall not be liable for delay in performance or failure to produce the event in whole or in part-due to the occurrence of any contingency beyond its control or the control, including war or act of war whether an actual declaration thereof is made or not, act of terrorism impacting travel in the United States, insurrection, riot or civil commotion, act of public enemy, epidemic, quarantine restriction, storm, flood, drought or other act of God, act of nature (including presence of endangered animal species which cannot be timely removed in a safe manner or any act of any governmental authority which prohibits the event to be produced, in full or in part, as described and for which the Event Sponsor has exercised reasonable care in the prevention thereof. Any delay or failure due to the causes stated shall not constitute a breach of the Agreement; however, the BOCC shall have the right to determine if there will be any reduction to the amount of funds due to the Event Sponsor after consideration of all relevant facts and circumstances surrounding the delay in performance or failure to produce the event. Upon demand of TOC or BOCC, the Event Sponsor must furnish evidence of the causes of such delay or failure. BOCC shall not pay for any services or activities, promotional or otherwise, connected with an event produced after the date( s) described in paragraph 1 and Scope of Services. 25. Governina Law. Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and Event Sponsor agree that Fantasy Fest 2005 6 venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. 26. 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 shaJJ 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 Event Sponsor 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. 27. Claims for Federal or State Aid. Event Sponsor 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 shall be approved by each party prior to submission. 28. Adiudication of OisPUtes or Oisaoreements. County and Event Sponsor 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 no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commi$Sioners. If the i$Sue 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. 29. No Solicitation/Pavment. The County and Event Sponsor 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 agrees that the County shall have the right to tenninate 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. 30. Public Access. The County and Event Sponsor 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 Event Sponsor in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by Event Sponsor. Fantasy Fest 2005 7 31. Privileaes and Immunities: AU 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. 32. Leaal Oblioations and Resoonsibilities: Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shaU 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. 33. Non~Waiver of Immunitv: Notwithstanding he provisions of Sec. 286.28, Florida Statutes, the participation of the County and the Event Sponsor in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. 34. Non-Reliance bv 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 Event Sponsor agree that neither the County nor the Event Sponsor 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. 35. Attornev's Fees and Costs: The County and Event Sponsor 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. Fantasy Fest 2005 8 36. Section Headinos: 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. 37. Entire Agreement: The parties agree that the Agreement above constitutes the entire agreement between the BOCC and Event Sponsor. IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. (SEAL) Association Attest: Key West Tourist Development By Presi //' ,,/ BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By ~~)~ >n ~ Mayor/Chairman \:)Xie.- ~,Sp~~ (SEAL) Attest: DANNY L. KOLHAGE, Clerk BG~ ./ Deputy Clerk 3: =:l I ~ ;: (.11 :z: F > :0(") ;;::~ -0 .. , Or- :..~; A1 '..,..~" 'f,:W: m::::l'-'''' I -i"j (") . r- .;:- 0(")' c:.:;o ::r:~ :!> %. c; ~;..\} -{ - :x ~(")!:: 1'1 - -l-~ co C') ..,.,. ::>- ... -t:::, r- C) W ':/] l> .....1 ~ ~~! 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