01/16/2014 Agreement 0,
1.111 41 p 0 . AMY HEAVILIN, CPA
<_ CLERK OF CIRCUIT COURT & COMPTROLLER
MONROE COUNTY,FLORIDA
40.
DATE: January 23, 2014
TO: Dent Pierce, Director
Public Works Division
ATTIC: Beth Leto, Assistant Director
Public Works Division
FROM: Lindsey Ballard, D.C.Lt7.,
At the January 16`h, 2014, Board
of County Commissioner's meeting the Board granted approval
of the following Item C14 Property Management Agreement for the Bandstands on Higgs Beach.
Enclosed is a duplicate original of the above-mentioned for your handling. Should you have any
questions,please feel free to contact our office
cc: County Attorney
Finance
File
500 Whitehead Street Suite 101,PO Box 1980, Key West,FL 33090 Phone 305 295 3130 Fax 305 295 3663
3117 Overseas Highway,Marathon,FL 33050 Phone..305-289-6027 Fax 305-289-6025
88820 Overseas Highway,Plantation Key, FL 33070 Phone:852-7145 Fax 305-852-7146
PROPERTY MANAGEMENT AGREEMENT
This Agreement is made and entered into this IC FIN day of J 0A J pi 1' , 2014,
between MONROE COUNTY, FLORIDA ("County"), a political subdivision of the State of
Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, and Tropical
Watersports, LLC. (Manager), whose address is 1717 Rose St., Key West, Florida 33040.
WHEREAS, the County owns two covered, raised, concrete structures on Higgs Beach
known as the"Bandstands"; and,
WHEREAS, County policy requires that individuals wishing to use County property
submit a County"use of Property' request form; and,
WHEREAS, the Bandstands are frequently used without County knowledge by
individuals unaware of County policy; and,
WHEREAS, County desires to enforce its County use of property policy in a manner
that is the least restrictive but that allows the County to exercise its authority over the
bandstands; and,
WHEREAS, Tropical Watersports LLC., operates a concession seven days a week on
Higgs Beach; and,
WHEREAS,Tropical Watersports is willing to act as the County's agent and manage the
use of the Bandstands in accordance with County policy; and,
WHEREAS, the County desires to enter into a Property Management Agreement with
Tropical Watersports, LLC.; now, therefore,
IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree
as follows:
1. Term. This Agreement shall be a month to month agreement with the right to terminate by
either party via written 30 day notice.
2. Duties of Manager. County hereby appoints Manager as its exclusive agent with the
following duties:
A. To advertise the availability of the Bandstands or any part thereof, in media which, in the
Manager's sole discretion, are suitable for the property and market condition's.
B. To receive applications and collect non-refundable fees and/or security deposits pursuant to
the Monroe County Use of Public Facilities policy.
C. To ensure the bandstands are only used by individuals or groups who have submitted a
completed Use of Property application along with the appropriate fees and/or deposits.
D. To contact local law enforcement officers to request removal of anyone using the Bandstands
without first having submitted a Use of Property form.
E. To make inspections of the bandstands for damage following any use of the bandstands.
F. To inform County of any damage or hazardous conditions found following any use of the
bandstands.
G. To manage the Property in accordance with standards of reasonable care and diligence.
3. Duties of County.County accepts and agrees to perform,the following duties:
A. Take notice of the condition of the Property and, subject to the availability of funds, establish
goals to upgrade and maintain the Property.
B. To pay all expenses incurred by the Manager, including without limitation, attorneys' fees for
counsel employed to represent the Manager, the County or both of them in any proceeding,
controversy or suit involving the property, the ownership or operation thereof. Nothing herein
contained shall require the Manager to employ counsel to represent the County in any such
proceeding or suit. In this regard, to the extent set forth in F.S. 768.28 County agrees to
indemnify, defend and save the Manager harmless from all claims, investigations and suits with
respect to any alleged or actual violations of State, Federal, City or County labor laws, it being
expressly agreed and understood that as between the County and the Manager, all persons
employed in connection with the Property are employees of the Manager. However, protection is
not afforded by applicable insurance coverage where the claim is based upon the willful
negligence of the Manager or its employees.
D. To the extent set forth in F.S. 768.28 indemnify, defend and save Manager harmless from all
suits in conjunction with the property and from liability for damage to property and injuries to or
death of an employee or other person whomsoever. County further agrees that Manager shall not
be liable to County for any damages caused by tenant or others to either interior or exterior of the
property.
E. County agrees that Manager does not assume and is given no responsibility for compliance of
the property or any equipment therein with the requirements of any statue, ordinance, law, or
regulation of any governmental body or of any public authority or official thereof having
jurisdiction, except to notify County promptly or forward to County promptly any complaints,
warnings, notices or summonses received by Manager relating to such matters. County represents
that to the best of his/her knowledge the property and equipment comply with all such
requirements and authorizes Manager to disclose the ownership of the property to any such
official and agrees to indemnify and save harmless the Manager, its representatives, servants and
employees, of and from all loss, cost, expense and liability whatsoever which maybe imposed on
them by reason of any present or future violation or alleged violation of such laws, ordinances,
statues, or regulations.
4. Repairs and Maintenance. Manager shall regularly inspect the interior and exterior of the
bandstands and shall promptly inform County of any condition requiring repair or maintenance.
Manger shall close the bandstand(s)until the repair or maintenance work has been completed.
5. Disclosures.
A. County represents and warrants that:
1. County is the legal owner of the Property or legal entity which owns the property and has full
authority to enter into this Agreement and to employ the Manager under the terms of this
Agreement.
2. There are no written or oral agreements affecting the management of the Property.
3. To the best of the County's knowledge the building, its construction and operation do not
violate any applicable statues, laws, ordinances, rules, regulations, orders, or the like including,
but not limited to,those relating to hazardous or toxic substances.
4. To the best of the County's knowledge the bandstands do not contain any toxic substances
such as, but not limited to: Lead based paint asbestos, urea, formaldehyde, radon, or other
hazardous substances and that no unsafe condition exists except as disclosed in writing at the
time of this agreement.
B. Manager represents and warrants that:
1. Manager, from time to time, employs personnel as managers, maintenance workers, clerical
and accounting staff. In such event, such personnel shall be deemed, for all purposes, the
employees of the Manager. All employee compensation, taxes and other benefits including
payroll and bookkeeping costs shall be paid through the Manager's central payroll account.
6. Accounts and Reports. Manager shall prepare and furnish, to County, monthly statements
of all fees and/or security deposits received and disbursed on or around the 20th day of each
month of the subject activity.
7. Records Retention. Pursuant to Florida Statute §119.0701, Manager shall comply with all
public records laws of the State of Florida, including but not limited to:
(a) Keep and maintain public records that ordinarily and necessarily would be
required by Monroe County in the performance of this Agreement.
(b) Provide the public with access to public records on the same terms and
conditions that Monroe County would provide the records and at a cost that does
not exceed the cost provided in Florida Statutes, Chapter 119 or as otherwise
provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law.
(d) Meet all requirements for retaining public records and transfer, at no cost, to
Monroe County all public records in possession of the contractor upon
termination of this Agreement and destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure requirements.
All records stored electronically must be provided to Monroe County in a format
that is compatible with the information technology systems of Monroe County.
All original documents required by law shall be retained by Manager for a period of six years
after their expiration or such other period as mandated by law. At the end of such retention
period, Manager may destroy or otherwise dispose of all such documents.
8. Compensation. The Manager shall be compensated for its services according to the
following schedule:
A. In any month in which fees are collected pursuant to the County's Use of Property policy,
Manager shall be entitled to retain the fees as a management fee. Such fee shall represent full
compensation for the operation and management of the bandstands.
9. Hold Harmless. Manager shall indemnify, defend and save County harmless from all
liability, claims and suits arising because of willful negligence or intentional torts by Manager or
its employees. To the extent set forth in F.S. 768.28 County shall indemnify, defend and save
Manager harmless from all liability, claims and suits arising out of the duties lawfully performed
by the Manager under this agreement other than those arising because of willful negligence or an
intentional tort by Manager or its employees. Furthermore, to the extent set forth in F.S. 768.28
County shall indemnify and hold Manager, its employees, officer and directors, ("Indemnities")
harmless from all damage, loss, cost or attomey's fees Indemnities may sustain on account of: (1)
any damage to or destruction of any property; (2) any injury to or death of any person; and (3)
any error of judgment by Indemnities or any mistake of law or fact by Indemnities. This
indemnity provision applies if the claim arises out of the sole negligence of Manager. However, it
shall not apply if it is finally adjudicated that an officer, director or home office employee of
Manager acted with gross negligence or willful misconduct. Owner agrees to carry liability
insurance adequate to protect the interest of the parties hereto; and insurance shall be written as to
protect Manager in the same manner and to the same as it protects Owner.
Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the County
and the Manager 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.
10. Warranties. Manager agrees to use its best efforts to perform the services requested of it by
Owner in accordance with this Agreement, but makes no warranties of any kind, express or
implied, with respect to the services to be provided hereunder. IN NO EVENT SHALL
MANAGER BE LIABLE TO OWNER FOR CONSEQUENTIAL DAMAGES OF ANY KIND
WHATSOEVER. MANAGER'S liability with respect to its performance or nonperformance of
its obligations under this Agreement shall in no event exceed the sums paid to Manager pursuant
to this Agreement.
10. Termination. Either party may terminate this agreement without cause by giving not less
than thirty days written notice to the other at the address specified herein or at the address most
recently provided in writing. Notices shall be deemed sufficient if personally delivered or sent by
registered mail.
11. Assignability. Neither party shall directly or indirectly assign, sell or otherwise transfer all
or any part of the legal or beneficial interest or all or any part of the rights or obligations created
by this Agreement without first obtaining the written approval of the other.
12. Disputes. County and Manager agree that all disputes and disagreements shall be attempted
to be resolved by meet and confer sessions between representatives of each of County and
Manager. 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
Commissioners. If the issue or issues are still not resolved to the satisfaction of County and
Manager, then any party shall have the right to seek such relief or remedy as may be provided by
this Agreement or by Florida law.
13. Entire Agreement. This Agreement incorporates all of the terms, covenants and conditions
agreed to by the parties and all prior and contemporaneous agreements are superseded hereby.
This Agreement can only be modified or amended in writing, signed by both parties.
14. Severability. If any part of this Agreement is determined by a court of competent
jurisdiction to be unenforceable, all other parts of this Agreement shall remain in full force and
effect.
15. Notices. All notices, reports and statements required to be sent here under to Owner or
Manager by the other shall be mailed to the address set forth herein or such other address as
spccificd in writing.
16.Governing Law.This Agreement shall be governed by the laws of the State of Florida.
17. Mutual Review. This agreement has been carefully reviewed by Manager and the County,
therefore this agreement is not to be construed against either party on the basis of authorship.
IN WITNESS WHEREOF County and Manager hereto have executed this Agreement on the day
first written above in three (3) counterparts, each of which shall, without proof or
the other counterparts,be deemed an original contract.
A? zs A 1
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SHAI2 BOARD OF COUNTY COMMISSIONERS
S r•,nY HEAVILIN, s ERR OF MONROE COUNTY, FLORIDA
By -111I lilt! By re=7;eter
Clerk , ]Ma
Mayor Pro-Tern
Witnesses for CONTRACTOR: TROPICAL
�WA R�PQIOTS, LLC.
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