Item D05
Meeting Date: AUGUST 19,2009
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
/
Division:
TDC
Bulk Item: Y es ~ No
Department:
Staff Contact PersonlPhone #:Maxine Pacini - 206-1552
AGENDA ITEM WORDING:
Approval of an Agreement with Keys Association of Dive Operators, Inc. to act as a County Wide
Dive Umbrella.-
ITEM BACKGROUND:
TDC approved same at their meeting of July 28, 2009
/
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
New Contract
/
STAFF RECOMMENDATIONS:
Approval
,
TOT AL COST: $450,000 / INDIRECT COST: N/ A
BUDGETED: Yes ~No
COST TO COUNTY: $450,000 SOURCE OF FUNDS: TDC
REVENUE PRODUCING: Yes X No AMOUNT PER MONTH Year
- -
APPROVED BY: County Atty ---"'- ~ChaSing ~ Risk Management X
DOCUMENT A TION:
Included X
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 1/09
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Keys Association of I Contract # TDC #: 639
-
Dive Operators, Inc. Effective Date: 10/1/09 J
Expiration Date: 9/30/12
Contract Purpose/Description:
Approval ofan Agreement with Keys Association of Dive Operators, Inc. to act as a
County Wide Dive Umbrella. /
Contract Manager: Maxine Pacini 3523 TDC # 3
(Name) (Ext. ) (Department/Stop #)
for BOCC meeting on 8/19/09 , Agenda Deadline 8/4/09
Current Year Portion: $
U501J503J..53034b- TDO;.5239-X-530480/
115-75033-530340-TDO-5239-X-530470
115-75033-530340- TDO-5239-X-530410
115-75033-530340- TDO-5239-X-530400
115-75033-530340- TDO-5239-X-530540
<115-7503.6-530340- TDO-5239?"X-530340
ADDITIONAL COSTS
Estimated Ongoing Costs: $_/yr For:
(Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT COSTS
/
Total Dollar Value of Contract: $ 450,000
Budgeted? Yes0 No 0 Account Codes:
Grant: $
County Match: $
CONTRACT REVIEW
Division Director
Changes Date Out
/ ~/;;~~ln Needed
~f YesDN00
Ci&D1 YesD NO~
CoflcfoiYesDNO ~~ ~30 0
#0"1 YcsDNo~ c. Hall Z3 .?1
~Irfv1anagement
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O.M.B.lPurch~sing
County Attorney
Comments:
OMB Form Revised2/27/0l Mep #2
DIVE UMBRELLA AGREEMENT
THIS AGREEMENT ("Agreement"), made and entered into this _ day of
2009, A.D" by and between MONROE COUNTY, FLORIDA, (hereinafter sometimes
called the "Owner"), and Keys Association of Dive Operators, Inc., (hereinafter
called the "Contractor").
WHEREAS, the County wishes to enter into this agreement with Contractor, so that
Contractor will oversee the TDC Dive Umbrella, an advisory committee to make
recommendations to the Tourist Development Council ("TDC") and the Monroe County
Board of County Commissioners ("BOCC") concerning dive related marketing
activities,
NOW THEREFORE, in consideration of the mutual covenants and provIsIons
contained herein and for the consideration hereinafter set forth, the parties mutually
agree as follows:
1. THE CONTRACT
The contract between the Owner and the Contractor, of which this Agreement is a
part, consists of the contract documents, which are as follows: This Agreement and
any amendments executed by the parties hereafter, together with the response to
Request for Proposals (RFP) and all required insurance documentation. In the event
of a discrepancy between the documents, precedence shall be determined by the
order of the documents as just listed.
2. SCOPE OF THE WORK
Contractor shall provide Dive Umbrella services for the County as described below:
A. Contractor shall establish an annual recommended line item breakdown of a
budgetary allocation provided by the Monroe County Tourist Development
Council (TDC) to include, but not be limited to the following:
1. Media placement advertising for Florida Keys diving industry.
2. Any diving event to be sponsored by the TDC.
3. Assist with the public relations for the Florida Keys diving industry.
B. Contractor shall make recommendations to the TDC by those members who sit
on the Dive Umbrella Recommendation Committee. There shall be five (5)
members, one each representing the five TDC districts. Recommended
appointments will be approved by the TDC. Any subsequent changes to the
Recommendation Committee shall be provided in writing to the TDC
Administrative Office for approval by the TDC.
C, Contractor shall, through the Dive Umbrella Recommendation Committee,
distribute on an equitable district-wide basis those monies recommended for all
qualified diving marketing activities.
Keys Association of Dive Operators
Dive Umbrella
10#: 639
D. Contractor shall not receive any administration compensation, directly or
indirectly, out of the TDC Dive Umbrella funds, TDC shall pay advertising and
promotional vendors direct upon receipt of properly approved invoices.
E. Contractor shall provide a schedule of Dive Umbrella meeting dates, to
include start time and venue, to the TDC Administrative Office.
F, Contractor shall advertise all Dive Umbrella meetings under the same rules as
required for all governmental meetings under F. S. 286.011. The advertisement
shall be placed at a minimum, in a newspaper of general circulation, in each of
the three primary areas of the county, to wit: Lower Keys, Middle Keys and
Upper Keys. The advertisement shall give notice of meeting date, location and
reason for meeting, and any other information which the Contractor deems
necessary to conduct the Dive Umbrella program. Contractor may place the
advertisements and be reimbursed, or may request the TDC to place the
advertisements and pay the newspapers directly by providing details in writing.
If a meeting has been duly publicly noticed and subsequently cancelled,
Contractor shall notify the media by public service announcements (PSA's) or
place the appropriate advertisement in the media.
G. Contractor shall provide a copy of the agenda and all attachments to the TDC
Administrative Office no later than seven (7) working days prior to each
regularly scheduled meeting.
H. Contractor may provide research information and contribute statistics and
scientific information for the TDC and the dive industry.
I. Contractor shall maintain adequate staffing levels to provide the services
required under the contract.
J. Contractor, upon the request of the TDC, shall be required to provide a
representative at a public meeting to address Dive Umbrella issues and/or
make a presentation.
3. PAYMENTS
Contractor is responsible to assist event sponsors in submitting invoices and support
documentation acceptable to the County's Finance Department for reimbursement.
4. TERM OF CONTRACT
The term of the contract is for three years, commencing on the 15t day of October,
2009, and ending on the 30th day of September, 2012. In addition the County, at its
sole choice, has the option to extend the contract for one additional two (2) year
period.
Keys Association of Dive Operators
Dive Umbrella
lD#: 639
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5. CONTRACTOR'S ACCEPTANCE OF CONDITIONS
A. The Contractor hereby agrees to carefully examine the specifications for which
the Contractor shall provide services and assumes full responsibility therefore.
The provisions of the Contract shall control any inconsistent provisions
contained in the specifications. Under no circumstances, conditions, or
situations shall this Contract be more strongly construed against the County
than against the Contractor.
B. Any ambiguity or uncertainty in the specifications shall be interpreted and
construed by the County, and the County's decision shall be final and binding
upon all parties.
C. The passing, approval, and/or acceptance by the County of any of the services
furnished by the Contractor shall not operate as a waiver by the County of strict
compliance with the terms of this Contract, and specifications covering the
services. Failure on the part of the Contractor, immediately after Notice to
Correct shall entitle the County, if it sees fit, to correct the same and recover
the reasonable cost of such replacement and/or repair from the Contractor, who
in any event shall be jointly and severally liable to the County for all damage,
loss, and expense caused to the County by reason of the Contractor's breach
of this Contract and/or his failure to comply strictly and in all things with this
Contract and with the specifications.
D. The Contractor agrees that the TDC may designate representatives to visit the
Contractor's facility(ies) periodically to conduct random open file evaluations
during the Contractor's normal business hours.
E. The Contractor warrants that it has, and shall maintain throughout the term of
this contract, appropriate licenses and approvals required to conduct its
business, and that it will at all times conduct its business activities in a
reputable manner. Proof of such licenses and approvals shall be submitted to
the County upon request.
6. CONTRACTOR'S FINANCIAL RECORDS
Contractor shall maintain all books, records, and documents directly pertinent to
performance under this Agreement in accordance with generally accepted accounting
principles consistently applied. Each party to this Agreement or their authorized
representatives shall have reasonable and timely access to such records of each
other party to this Agreement for public records purposes during the term of the
Agreement and for four years following the termination of this Agreement. 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 Contractor shall repay the monies together with interest calculated pursuant to
Sec, 55,03, FS, running from the date the monies were paid to Contractor.
Keys Association of Dive Operators
Dive Umbrella
10#: 639
3
7. PUBLIC ACCESS
The County and Contractor shall allow and permit reasonable access to, and
inspection of, all documents, papers, letters or other materials in its possession or
under its control subject to the provisions of Chapter 119, Florida Statutes, and made
or received by the County and Contractor in conjunction with this Agreement; and the
County shall have the right to unilaterally cancel this Agreement upon violation of this
provision by Contractor.
8. HOLD HARMLESS
The Contractor covenants and agrees to indemnify and hold harmless Monroe County
Board of County Commissioners and the TDC from any and all claims for bodily injury
(including death), personal injury, and property damage (including property owned by
Monroe County) and any other losses, damages, and expenses (including attorney's
fees) which arise out of, in connection with, or by reason of services provided by the
Contractor or any of its Subcontractor(s) in any tier, occasioned by the negligence,
errors, or other wrongful act of omission of the Contractor or its Subcontractors in any
tier, their employees, or agents.
The extent of liability is in no way limited to, reduced, or lessened by the insurance
requirements contained elsewhere within this Agreement.
9. INDEPENDENT CONTRACTOR
At all times and for all purposes under this Agreement the Contractor is an
independent contractor and not an employee of the Board of County Commissioners
of Monroe County. No statement contained in this Agreement shall be construed so
as to find the Contractor or any of his employees, contractors, servants, or agents to
be employees of the Board of County Commissioners of Monroe County.
10. NONDISCRIMINATION
The parties agree that there will be no discrimination against any person, and it is
expressly understood that upon a determination by a court of competent jurisdiction
that discrimination has occurred, this Agreement automatically terminates without any
further action on the part of any party, effective the date of the court order. The
parties agree to comply with all Federal and Florida statutes, and all local ordinances,
as applicable, relating to nondiscrimination. These include but are not limited to: 1)
Title VII of the Civil Rights Act of 1964 (PL 88-352), which prohibit discrimination in
employment on the basis of race, color, religion, sex, and national origin; 2) Title IX of
the Education Amendment of 1972, as amended (20 USC 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 SS 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
Keys Association of Dive Operators 4
Dive Umbrella
10#: 639
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 SS 3601 et seq.), as
amended, relating to nondiscrimination in the sale, rental or financing of housing; 9)
The Americans with Disabilities Act of 1990 (42 USC SS 1201), as amended from time
to time, relating to nondiscrimination in employment on the basis of disability; 10)
Monroe County Code Chapter 13, Article VI, which prohibits discrimination on the
basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender
identity or expression, familial status or age; and 11) any other nondiscrimination
provisions in any federal or state statutes which may apply to the parties to, or the
subject matter of, this Agreement.
11. ASSIGNMENT/SUBCONTRACT
The Contractor shall not assign or subcontract its obligations under this Agreement,
except in writing and with the prior written approval of the Board of County
Commissioners of Monroe County and Contractor, which approval shall be subject to
such conditions and provisions as the Board of County Commissioners may deem
necessary. This paragraph shall be incorporated by reference into any assignment or
subcontract and any assignee or subcontractor shall comply with all of the provisions
of this Agreement.
12. COMPLIANCE WITH LAW
In providing all services/goods pursuant to this Agreement, the Contractor shall abide
by all statutes, ordinances, rules and regulations pertaining to, or regulating the
provisions of, such services, including those now in effect and hereinafter adopted.
Any violation of said statutes, ordinances, rules and regulations shall constitute a
material breach of this Agreement and shall entitle the Board of County
Commissioners to terminate this contract immediately upon delivery of written notice
of termination to the contractor. The contractor shall possess proper licenses to
perform work in accordance with these specifications throughout the term of this
contract.
13, DISCLOSURE AND CONFLICT OF INTEREST
The Contractor represents that it, its directors, principles and employees, presently
have no interest and shall acquire no interest, either direct or indirect, which would
conflict in any manner with the performance of services required by this contract, as
provided in Sect. 112,311, et seq., Florida Statutes. County agrees that officers and
employees of the County recognize and will be required to comply with the standards
of conduct for public officers and employees as delineated in Section 112.313, Florida
Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing
business with one's agency; unauthorized compensation; misuse of public position,
Kl:Ys Association of Dive Operators
Dive Umbrella
10#: 639
5
conflicting employment or contractual relationship; and disclosure or use of certain
information.
Upon execution of this contract, and thereafter as changes may require, the
Contractor shall notify the County of any financial interest it may have in any and all
programs in Monroe County which the Contractor sponsors, endorses, recommends,
supervises, or requires for counseling, assistance, evaluation, or treatment. This
provision shall apply whether or not such program is required by statute, as a
condition of probation, or is provided on a voluntary basis.
The County and Contractor warrant that, in respect to itself, it has neither employed
nor retained any company or person, other than a bona fide employee working solely
for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any
person, company, corporation, individual, or firm, other than a bona fide employee
working solely for it, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. For the
breach or violation of the provision, the Contractor agrees that the County shall have
the right to terminate this Agreement without liability and, at its discretion, to offset
from monies owed, or otherwise recover, the full amount of such fee, commission,
percentage, gift, or consideration.
14. ARREARS
The Contractor shall not pledge the County's credit or make it a guarantor of payment
or surety for any contract, debt, obligation, judgment, lien, or any form of
indebtedness. The Contractor further warrants and represents that it has no obligation
or indebtedness that would impair its ability to fulfill the terms of this contract.
15. NOTICE REQUIREMENT
Any notice required or permitted under this Agreement shall be in writing and hand
delivered or mailed, postage prepaid, to the other party by certified mail, returned
receipt requested, to the following:
FOR TDC:
Lynda Stuart
1201 White St. Suite 102
Key West, FL 33040
FOR COUNTY:
and County Attorney
PO Box 1026
Key West, FI. 33041-1026
FOR CONTRACTOR:
Bob Holston
Keys Association of Dive Operators, Inc.
3128 North Roosevelt Blvd
Key West, FL 33040
16. TAXES
The County is exempt from payment of Florida State Sales and Use taxes. The
Contractor shall not be exempted by virtue of the County's exemption from paying
Keys Association of Dive Operators 6
Dive Umbrella
10#: 639
sales tax to its suppliers for materials used to fulfill its obligations under this contract,
nor is the Contractor authorized to use the County's Tax Exemption Number in
securing such materials. The Contractor shall be responsible for any and all taxes, or
payments of withholding, related to services rendered under this Agreement.
17. TERMINATION
A. The County may terminate this contract for cause with seven (7) days notice to
the Contractor. Cause shall constitute a breach of the obligations of the
Contractor to perform the services enumerated as the Contractor's obligations
under this contract.
B. Either of the parties hereto may terminate this contract without cause by giving
the other party sixty (60) days written notice of its intention to do so.
18. GOVERNING LAW, VENUE, INTERPRETATION, COSTS AND FEES
A. 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.
B. In the event that any cause of action or administrative proceeding is instituted
for the enforcement or interpretation of this Agreement, the County and
Contractor agree that venue will lie in the appropriate court or before the
appropriate administrative body in Monroe County, Florida.
C. The County and Contractor agree that, in the event of conflicting interpretations
of the terms or a term of this Agreement by or between any of them the issue
shall be submitted to mediation prior to the institution of any other
administrative or legal proceeding.
D. Severability, If any term, covenant, condition or provision of this Agreement (or
the application thereof to any circumstance or person) shall be declared invalid
or unenforceable to any extent by a court of competent jurisdiction, the
remaining terms, covenants, conditions and provisions of this Agreement, shall
not be affected thereby; and each remaining term, covenant, condition and
provision of this Agreement shall be valid and shall be enforceable to the fullest
extent permitted by law unless the enforcement of the remaining terms,
covenants, conditions and provisions of this Agreement would prevent the
accomplishment of the original intent of this Agreement. The County and
Contractor agree to reform the Agreement to replace any stricken provision with
a valid provision that comes as close as possible to the intent of the stricken
provision.
E. Attorney's Fees and Costs. The County and Contractor agree that in the event
any cause of action or administrative proceeding is initiated or defended by any
party relative to the enforcement or interpretation of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, court costs,
Keys Association of Dive Operators 7
Dive Umbrella
10#: 639
investigative, and out-of-pocket expenses, as an award against the non-
prevailing party, and shall include attorney's fees, courts costs, investigative,
and out-of-pocket expenses in appellate proceedings. Mediation proceedings
initiated and conducted pursuant to this Agreement shall be in accordance with
the Florida Rules of Civil Procedure and usual and customary procedures
required by the circuit court of Monroe County,
F, Adjudication of Disputes or Disagreements. County and Contractor agree that
all disputes and disagreements shall be attempted to be resolved by meet and
confer sessions between representatives of each of the parties. If the issue or
issues are still not resolved to the satisfaction of the parties, then any party
shall have the right to seek such relief or remedy as may be provided by this
Agreement or by Florida law.
G. Cooperation. In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach
of this Agreement, County and Contractor agree to participate, to the extent
required by the other party, in all proceedings, hearings, processes, meetings,
and other activities related to the substance of this Agreement or provision of
the services under this Agreement. County and Contractor specifically agree
that no party to this Agreement shall be required to enter into any arbitration
proceedings related to this Agreement.
19. BINDING EFFECT
The terms, covenants, conditions, and provisions of this Agreement shall bind and
inure to the benefit of the County and Contractor and their respective legal
representatives, successors, and assigns.
20. AUTHORITY
Each party represents and warrants to the other that the execution, delivery and
performance of this Agreement have been duly authorized by all necessary County
and corporate action, as required by law.
21. CLAIMS FOR FEDERAL OR STATE AID
Contractor and County agree that each shall be, and is, empowered to apply for, seek,
and obtain federal and state funds to further the purpose of this Agreement; provided
that all applications, requests, grant proposals, and funding solicitations shall be
approved by each party prior to submission.
22. PRIVILEGES AND IMMUNITIES
All of the privileges and immunities from liability, exemptions from laws, ordinances,
and rules and pensions and relief, disability, workers' compensation, and other
benefits which apply to the activity of officers, agents, or employees of any public
agents or employees of the County, when performing their respective functions under
this Agreement within the territorial limits of the County shall apply to the same degree
Keys Association of Dive Operators 8
Dive Umbrella
10#: 639
and extent to the performance of such functions and duties of such officers, agents,
volunteers, or employees outside the territorial limits of the County.
23. LEGAL OBLIGATIONS AND RESPONSIBILITIES
Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended
to, nor shall it be construed as, relieving any participating entity from any obligation or
responsibility imposed upon the entity by law except to the extent of actual and timely
performance thereof by any participating entity, in which case the performance may be
offered in satisfaction of the obligation or responsibility. Further, this Agreement is not
intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the County, except to the extent permitted by the
Florida constitution, state statute, and case law.
24. NON-RELIANCE BY NON-PARTIES
No person or entity shall be entitled to rely upon the terms, or any of them, of this
Agreement to enforce or attempt to enforce any third-party claim or entitlement to or
benefit of any service' or program contemplated hereunder, and the County and the
Contractor agree that neither the County nor the Contractor or any agent, officer, or
employee of either shall have the authority to inform, counsel, or otherwise indicate
that any particular individual or group of individuals, entity or entities, have
entitlements or benefits under this Agreement separate and apart, inferior to, or
superior to the community in general or for the purposes contemplated in this
Agreement.
25. ATTESTATIONS
Contractor agrees to execute such documents as the County may reasonably require,
to include a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free
Workplace Statement.
26. NO PERSONAL LIABILITY
No covenant or agreement contained herein shall be deemed to be a covenant or
agreement of any member, officer, agent or employee of Monroe County in his or her
individual capacity, and no member, officer, agent or employee of Monroe County
shall be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
27. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall
be regarded as an original, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by singing
any such counterpart.
Keys Association of Dive Operators
Dive Umbrella
10#: 639
9
..:CTION HEADINGS
.on headings have been inserted in this Agreement as a matter of convenience of
~rence only, and it is agreed that such section headings are not a part of this
\greement and will not be used in the interpretation of any provision of this
Agreement
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the
day and date first written above in four (4) counterparts, each of which shall, without
proof or accounting for the other counterparts, be deemed an original contract
(SEAL)
Attest: Danny L. Kolhage, Clerk
Board of County Commissioners
of Monroe County
Deputy Clerk
Mayor/Chairman
(CORPORATE SEAL)
Attest:
Keys Association of Dive Operators, Inc.
Secretary
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MONROE COUNTY ATTO~~EY
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Keys Association of Dive Operators 10
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