07/17/2019 Agreement (J�°°`CA�RTgco Kevin Madok, CPA
Q i•5,UM C`oLF.�
O~R�EGOJN, Clerk of the Circuit Court& Comptroller Monroe County, Florida
DATE: July 19, 2019
TO: Ainmie Machan,Administrative Assistant
Tourist Development Council
FROM: Pamela G. Hancock,
SUBJECT: June 19th/July 17th BOCC Meetings
Attached are electronic copies of the following items for your handling:
June 19t
E2 1"Amendment to extend Agreement with the City of Marathon for the Oceanfront
Park Renovation Project to December 31, 2019.
July 17h
El Agreement with Keys Association of Dive Operators, Inc. to act as a Dive Umbrella
to make recommendations to the Monroe County TDC and BOCC concerning dive/snorkeling
related marketing activities commencing October 1, 2019 and terminating on September 30, 2022
with an option to extend for an additional two (2) year period.
Should you have any questions, please feel free to contact me at (305) 292-3550. Thank you.
cc: County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070
305-294-4641 305-289-6027 305-852-7145 305-852-7145
DIVE UMBRELLA AGREEMENT
THIS AGREEMENT ("Agreement"), made and entered into this 1114 day of 41,1 , 2019,
A.D., by and between MONROE COUNTY, FLORIDA, (hereinafter called the "County"), 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 Monroe County Tourist Development Council ("TDC") Dive Umbrella, an
advisory committee to make marketing recommendations to the TDC and the Monroe County
Board of County Commissioners ("BOCC") concerning dive/snorkeling 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 Agreement: This Agreement constitutes the entire Agreement between the
County and the Contractor for the services contemplated herein. Any amendments or revisions
to this Agreement must be in writing and be executed in the same manner as this Agreement.
2. Scope of 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 TDC, including but not limited to the following:
1. Media placement advertising for Florida Keys diving/snorkeling industry.
2. Any diving event (Trade Show) to be sponsored by the TDC.
3: Public relations for the Florida Keys diving/snorkeling industry.
B. Contractor shall make marketing recommendations to the TDC by those members who
sit on the Dive Umbrella Recommendation Committee based on proposals by the
Agencies of Record. 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 not receive any administration compensation, directly or indirectly, out
of the TDC Dive Umbrella funds. TDC shall pay advertising and promotional vendors
directly upon receipt of properly approved invoices.
D. Contractor shall provide a schedule of Dive Umbrella meeting dates, to include start
time and venue, to the TDC Administrative Office.
E. Contractor shall inform the TDC administrative office of all Dive Umbrella meetings no
later than 20 days prior to the meeting date. Contractor shall provide the date, time,
venue and reason for the meeting. Upon receipt of the meeting information, the TDC
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administrative office shall place a public notice on the Monroe County official website
under Notice of Meetings.
F. 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.
G. Contractor may provide research information and contribute statistics and scientific
information for the TDC and the dive/snorkeling industry.
H. Contractor shall maintain adequate staffing levels to provide the services required under
the Agreement.
I. 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 the agencies of record and TDC staff in
submitting invoices and support documentation acceptable to the County's Finance
Department for reimbursement.
4. Term of Agreement: The term of the Agreement is for three years, commencing on
October 1, 2019, and terminating on September 30, 2022. In addition, the County shall have
the option to extend the Agreement for one additional two (2) year period.
5. Contractor's Acceptance of Conditions: The Contractor hereby agrees to carefully
examine the scope of services and assumes full responsibility therefore. Under no
circumstances, conditions, or situations shall this Agreement be more strongly construed
against the County than against the Contractor.
A. Any ambiguity or uncertainty in the scope of services shall be interpreted and construed
by the County, and the County's decision shall be final and binding upon all parties.
B. 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 Agreement. Failure on the part of the Contractor,
immediately after Notice to Correct a default 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 Agreement and/or his failure to comply strictly and in all things with this
Agreement and with the specifications.
C. 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.
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D. The Contractor warrants that it has, and shall maintain throughout the term of this
Agreement, appropriate licenses and permits 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 permits 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.
7. Public Records Compliance: Contractor must comply with Florida public records laws,
including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the
Constitution of Florida. The County and Contractor shall allow and permit reasonable access
to, and inspection of, all documents, records, papers, letters or other "public record" 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 contract and
related to contract performance. The County shall have the right to unilaterally cancel this
contract upon violation of this provision by the Contractor. Failure of the Contractor to abide by
the terms of this provision shall be deemed a material breach of this contract and the County
may enforce the terms of this provision in the form of a court proceeding and shall, as a
prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with
that proceeding. This provision shall survive any termination or expiration of the contract.
The Contractor is encouraged to consult with its advisors about Florida Public Records Law in
order to comply with this provision.
Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Contractor is
required to:
(1) Keep and maintain public records that would be required by the County to perform the
service.
(2) Upon receipt from the County's custodian of records, provide the County with a copy
of the requested records or allow the records to be inspected or copied within a reasonable
time at a cost that does not exceed the cost provided in this chapter or as otherwise provided
by law.
(3) Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
contract term and following completion of the contract if the contractor does not transfer the
records to the County.
(4) Upon completion of the contract, transfer, at no cost, to the County all public records in
possession of the Contractor or keep and maintain public records that would be required by
the County to perform the service. If the Contractor transfers all public records to the County
upon completion of the contract, the Contractor shall destroy any duplicate public records that
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are exempt or confidential and exempt from public records disclosure requirements. If the
Contractor keeps and maintains public records upon completion of the contract, the Contractor
shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the County, upon request from the County's custodian of
records, in a format that is compatible with the information technology systems of the County.
(5) A request to inspect or copy public records relating to a County contract must be made
directly to the County, but if the County does not possess the requested records, the County
shall immediately notify the Contractor of the request, and the Contractor must provide the
records to the County or allow the records to be inspected or copied within a reasonable time.
If the Contractor does not comply with the County's request for records, the County shall
enforce the public records contract provisions in accordance with the contract, notwithstanding
the County's option and right to unilaterally cancel this contract upon violation of this provision
by the Contractor. A Contractor who fails to provide the public records to the County or
pursuant to a valid public records request within a reasonable time may be subject to penalties
under section119.10, Florida Statutes.
The Contractor shall not transfer custody, release, alter, destroy or otherwise dispose of any
public records unless or otherwise provided in this provision or as otherwise provided by law.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY
TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT
PHONE# 305-292-3470 BRADLEY-BRIANna,MONROECOUNTY-FL.GOV,
MONROE COUNTY ATTORNEY'S OFFICE 1111 12TH Street, SUITE 408, KEY
WEST, FL 33040.
8. Hold Harmless: The Contractor covenants and agrees to indemnify and hold harmless
Monroe County BOCC 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.
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 BOCC. 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 BOCC.
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Nondiscrimination: County and Contractor 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 or
PROVIDER 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 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 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 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 patient 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 s. 12101 Note), as maybe amended from time
to time, relating to nondiscrimination on the basis of disability; 10) Monroe County Code
Chapter 14, Article II, which prohibits discrimination on the basis of race, color, sex, religion,
national origin, ancestry, sexual orientation, gender identity or expression, familial status or
age; 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.
10. 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 BOCC and
Contractor, which approval shall be subject to such conditions and provisions as the BOCC
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.
11. 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 BOCC to terminate this Agreement
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 Agreement.
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 Agreement, 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
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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, conflicting
employment or contractual relationship; and disclosure or use of certain information.
Upon execution of this Agreement, 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.
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 Agreement, 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 Agreement.
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: Maxine Pacini
Monroe County TDC
1201 White Street
Key West, FL 33040
FOR COUNTY: Christine Limbert-Barrows, Assistant County Attorney
PO Box 1026
Key West, FL 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 sales tax to
its suppliers for materials used to fulfill its obligations under this Agreement, nor is the
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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 Agreement 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 Agreement.
B. Either of the parties hereto may terminate this Agreement 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 Agreements 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, investigative, and out-of-pocket
expenses, as an award against the non-prevailing party, and shall include attorney's
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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. Any conditions imposed as a result of funding that effect this Agreement or
scope of work will be provided to each party..
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 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
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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.
28. Section Headings: 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.
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SSA ia
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.; NESS WHEREOF, the parties hereto have caused this Agreement to be executed the
`'c ear first above written.
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MONROE COUNTY ATTORNEY
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