Attachment_A_-_Draft_Contract.pdf

Brevard County Parks and Recreation Department

NON-MOTORIZED ECO-TOUR VENDOR

AGREEMENT

THIS AGREEMENT (“Agreement”), made and entered into on the ___ day of ________ _____, by and between the BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as the “County”), and <ECO TOUR VENDOR NAME> (hereinafter referred to as “Permittee”).

WHEREAS, the County operates and regulates parks, watercraft launch access areas and appurtenances as active and passive public recreation facilities; and

WHEREAS, the County has a unique ecosystem on the coast of Florida that affords an eco-tourism experience for visitors and residents alike through the services provided by eco-tour vendors; and

WHEREAS, the County wishes to maintain and enhance the watercraft users’ experience while protecting the various waterways’ fragile ecosystem; and

WHEREAS, the locations that provide watercraft launch access have limited parking and launch capacity requiring a need for regulation and control; and

WHEREAS, the provisions for limited commercial tourism is compatible with public use;

and

WHEREAS, pursuant to Brevard County Code, Chapter 78-107, “no person shall sell, keep, or offer for sale any tangible or intangible object, merchandise or thing nor solicit for any trade, occupation, business or profession for consideration within any park, recreational facility, or department managed lands without a permit from the department”; and

WHEREAS, there are a limited number of locations that may provide commercial services on the waterways at this time; and

WHEREAS, it is the County’s desire to serve the public in accordance with this Agreement and under the regulation of the County; and

WHEREAS, the County and the Permittee desire to set forth the terms and conditions for public service in parks with watercraft launch access per Request for Proposal #RFP-4-25-04 __________/ Concession Services for non-motorized watercrafts Kayak/Canoe and Standup Paddle Board Eco-Tours and Rentals;

W I T N E S S E T H:

NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration passing between the parties hereto, receipt of which is hereby acknowledged, the parties hereto agree as follows:

RECITALS. The foregoing recitals are true and are incorporated herein by reference.

1. Grant. The County hereby grants to Permittee an Eco-Tour Vendor Restricted Use Permit, attached hereto as Exhibit A, to conduct commercial non-motorized eco-tours at specific location(s) as described in relevant permits. Permittee must comply with all applicable rules and regulations.

2. Duration of Agreement. This Agreement shall continue in force and effect for a term of two (2) years and commencing on________ and terminating at midnight on ______, hereinafter the Effective Date of this Agreement. The initial term may be extended, by mutual agreement, for up to two additional periods of two (2) years and one (1) year, respectively for a total of five (5) years. On or before the effective date of this Agreement, the Permittee shall deliver to the County the policies of insurance required hereunder.

Should the Permittee fail to comply with the foregoing, it shall acquire no right, privilege or authority under the Agreement whatsoever.

3. Annual Fee/Bond. All fees shall be paid in full on an annual basis with initial payment received by the County on or before _________ and annually thereafter on or before the anniversary. No fee amount quoted herein includes any applicable taxes or fees assessed in connection with the business or operation conducted under this Agreement. Failure to make payment in full as specified shall constitute a breach of this Agreement. No refunds will be given after date of issue.

a.) Restricted Permit Fee: An Eco-Tour Vendor General Permit Fee shall be established at:

Manatee Cove Park - $ annually Kelly Park East - $ annually

4. Accounting Procedure: The Permittee shall maintain complete and accurate financial and performance records in accordance with good and accepted accounting procedures, which records shall be available for inspection upon request by the County or any duly authorized representative thereof. The Permittee hereby agrees to maintain financial records and to adopt accounting procedures requested by the County. The Permittee shall cooperate with and provide the County or its duly authorized representative with any additional information or reports concerning its activities, income, revenues, expenses, and disbursements when so requested.

5. Right to Audit Records: The Permittee shall prepare an annual financial statement and shall submit same to the Area Manager ninety (90) days prior to expiration of contract.

In performance of this Agreement, the Permittee shall keep books, records, and account of all activities related to this Agreement in compliance with generally accepted accounting procedures, all documents, papers, books, records and accounts made or received by the Contractor in conjunction with this Agreement and the performance of this Agreement shall be open to inspection during regular business hours by an authorized representative of the County. The Permittee shall retain all documents, books and records for a period of five (5) years after termination of this Agreement, unless such records are exempt from section 24(a) of Article I of the State Constitution and Chapter 119, Florida Statutes. All records or documents created by or provided to the Permittee by the County in connection with this Agreement are public records subject to Florida Public Records Law, Chapter 119, Florida Statutes. All records stored electronically must be provided to the County in a format compatible with the information technology systems of the County.

The Permittee shall ensure the public records which are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the Agreement and following termination of the Agreement if the Permittee does not transfer the records to the public agency. In lieu of retaining all public records upon termination of this Agreement, the Permittee may transfer at no cost to the County, all public records in possession of the Permittee. If the Permittee transfers all public records to the County upon termination of the Agreement, the Permittee shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements.

6. Florida Public Records Law. Pursuant to section 119.0701, Florida Statutes, a request to inspect or copy public records relating to this Agreement must be made directly to the County. If the County does not possess the requested records, the County shall immediately notify the Permittee of the request, and the Permittee must provide the records to the County or allow the records to be inspected or copied within twenty-four (24) hours (not including weekends or legal holidays) of the request so the County can comply with the requirements of section 119.07. The Permittee may also provide a cost estimate to produce the requested documents consistent with the policy set forth in Brevard County Administrative Order AO- 47, incorporated herein by this reference. A copy of AO-47 is available upon request from the County’s public records custodian designated below.

If Permittee fails to provide the requested public records to the County within a reasonable time, the Permittee may face civil liability for the reasonable cost of enforcement incurred by the party requesting the records and may be subject to criminal penalties. Sections 119.0701, 119.110, Florida Statutes. The Permittee’s failure to comply with public records requests is considered a material breach of this Agreement and grounds for termination.

Should the County face any legal action to enforce inspection or production of the records within the Permittee’s possession and control, the Permittee agrees to indemnify the County for all damages and expenses, including attorney’s fees and costs. The Permittee shall hire and compensate attorney(s) to represent the Permittee and County in defending such action.

The Permittee shall pay all costs to defend such action and any costs and attorney’s fees awarde3d pursuant to section 119.12.

IF THE PERMITTEE HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER

119, FLORIDA STATUTES, TO THE PERMITTEE’S DUTY TO PROVIDE PUBLIC

RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC

RECORDS-Diana Marquardt at (321) 633-2046 or by email at diana.marquardt@brevardfl.gov.

7. Indemnification and Insurance: The Permittee agrees to indemnify and hold harmless the County from any and all liability, claims, damages expenses (including attorney’s fees and costs), proceedings and causes of action of every kind and nature, arising out of or connected with the activities of the Permittee or with the use, occupation, management or control of the facilities or any improvements thereon or any furniture, furnishings, equipment and fixtures utilized in connection therewith. The Permittee agrees to defend at his expense any and all actions, suits or proceedings which may be brought against the County arising from the Permittee’s activities and that he will satisfy, pay, and discharge any and all judgments that may be entered against the County in any such action or proceeding. It is agreed by the parties hereto that specific consideration has been paid under this Agreement for this indemnification and hold harmless provision. The Permittee shall notify the County immediately in writing of any potentially hazardous condition existing on or about the premises utilized in conducting said program(s). All personal property utilized at a County facility shall be at the risk of the Permittee, and the County shall have no liability for any damage or loss to any personal property located thereon for any cause whatsoever.

The Permittee agrees and understands that the County does not and shall not carry liability, fire, or theft insurance on the operation of these facilities to cover the Permittee’s interest therein. The Permittee agrees to provide and maintain at all times during the term of this Agreement, without cost or expense to the County, policies of insurance generally known as comprehensive general liability policies insuring the Permittee against any and all claims, demands and causes of action whatsoever for injuries received and damage to property incurred in connection with the use, occupation, and management or control of the property during any activities conducted thereon by Permittee. Such policies of insurance shall insure the Permittee in the amount of not less than $1,000,000 to cover any and all liability claims arising in connection with any particular accident or occurrence.

Permittee is responsible for Workers Compensation in accordance with State law.

Said insurance policies shall be endorsed to name the County as an additional insured and shall be entitled to thirty (30) days prior notice of any changes or cancellation in said policies.

The Permittee shall provide the described insurance on policies and with insurers acceptable to the County. These insurance requirements shall not relieve or limit the liability of the Permittee. The County does not in any way represent that these types or amounts of insurance are sufficient or adequate to protect the Permittee’s interests or liabilities, but are merely minimums. A certificate of insurance indicating the Permittee has coverage in accordance with the requirements of this Agreement shall be furnished by the Permittee to the Brevard County Parks and Recreation Department, 840 Forrest Avenue, Cocoa, FL 32922 on or before the effective date of this agreement.

8. Independent Contractor. The Permittee shall perform the terms and conditions of this Agreement as an independent contractor, and nothing contained herein shall be construed to be inconsistent with this relationship or status. Nothing in this Agreement shall, in any way, be construed to constitute the Permittee or any of its agents or employees as the representative agents or employees of the County.

9. Background Investigation Check.

Prior to the execution of this Agreement, the Concessionaire shall complete and successfully pass a High-Level Background Screening. The High-Level Background Screening must include fingerprinting with retention fees to ensure the County receives post information should the vendor have any arrests following the initial High-Level Background Screening. The Concessionaire shall perform a rescreening at the same

High-Level Background Screening with retention fees annually or every five years prior to the Concessionaire’s High-Level Background Screening expiring.

The Contractor shall be responsible for:

a. Submitting information for all employees, agents, representatives or volunteers to the State of Florida Criminal History Record Check to the Florida Department of Law Enforcement (FDLE) https://www.fdle.state.fl.us/Criminal-History- Records/Florida-Checks

b. The Contractor shall conduct and maintain such standards for the employment for personnel throughout the Contract term, including any renewal periods as follows:

i. The Contractor shall be responsible for, and pay the cost of, having Criminal History Record Checks performed on all the Concessionaire’s employees, agents, representatives, or volunteers.

ii. The Contractor shall not allow any employees, agents, representatives, or volunteers to work unsupervised with at risk populations prior to such person successfully completing the State of Florida Criminal History Record Check.

iii. The Contractor shall refer to criteria as outlined in this bid and reference Florida State Statutes 435.04 in determining if a person shall be disqualified from working/volunteering at the Park.

iv. An Attestation of Compliance, stating Florida Criminal History Record Checks have been performed on all Contractor employees, agents, representatives, or volunteers, shall be submitted prior to the Contract being awarded.

v. An Attestation of Compliance form shall be submitted at a minimum, annually or when new employees, agents, representatives or volunteers join the Contractor’s business.

vi. The Contractor shall notify the Parks and Recreation Director, in writing, within 24 hours’ notice of any arrest or change in criminal status, regarding any of their employees, agents, representatives or volunteers.

vii. i. For Vendor employees, agents, representatives, or volunteers under the age of 18, when applicable and allowed in lieu of fingerprinting, a Department of Juvenile Justice check shall be completed.

viii. The Vendor shall be responsible for completing reference checks and prior employment checks, any pre-employment testing and verification, and the following screening: (1) Education/Licensing Verification, (2) Driver’s Licensing Check, and (3) Drug Testing.

ix. The Director may deny the Vendor the ability to utilize an employee, agent, representative, volunteer, or any other person providing a service at the Park based on the results of the background screening. The Director shall refer to criteria as outlined in this RFP and reference Florida State Statutes and Brevard County policy on background screening in determining if a person shall be disqualified from working/volunteering at the Park.

10. Music Performance. The Permittee shall not use, play or perform copyrighted music without appropriate licensing or other permission. The Permittee shall be solely responsible for obtaining appropriate licensing or permission to use, play or perform copyrighted music. The use or performance of copyrighted music without appropriate licensing or other permission shall constitute a breach of this Agreement. The Permittee agrees to indemnify and hold harmless the County from damages for unauthorized use or performance of copyrighted music.

11. Attorney’s Fees. In the event of any legal action to enforce the terms of this Agreement each party shall bear its own attorney’s fees and costs.

12. Governing Law. This Agreement shall be deemed to have been executed and entered into within the State of Florida and this Agreement, and any dispute arising hereunder, shall be governed, interpreted and construed according to the laws of the State of Florida.

13. Venue and Waiver of Right to Trial by Jury. Venue for any legal action brought by any party to this Agreement to interpret, construe or enforce this Agreement shall be in a court of competent jurisdiction in and for Brevard County, Florida. BOTH PARTIES AGREE TO

WAIVE ANY RIGHT TO TRIAL BY JURY.

14. Unauthorized Alien Workers. Brevard County will not intentionally award publicly-funded contracts to any Contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 U.S.C. Section 1324a(e)(Section 274A(e) of the Immigration and Nationality Act “INA”). The County shall consider the employment by the Contractor of unauthorized aliens a violation of Section 274A(e) of the INA. Such violation by the Recipient of the employment provisions contained in Section 274A(e) of the INA shall be grounds for unilateral cancellation of the Agreement by the County.

15. Public Entity Crimes. A person or affiliate who has been placed on the convicted Vendor list following a conviction for a 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 a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity, and may not transact business with any public entity in excess of Category Two for a period of thirty-six (36) months from the date of being placed on the convicted Permittee list.

16. Emergencies. In the case of a declared state of emergency in Brevard County by the Board of County Commissioners, the County retains the right to immediately resume occupation, management, and maintenance of the facility, to use the facility to meet any emergency needs of the citizens of Brevard County for the period of that emergency and a reasonable period of time thereafter as deemed necessary by the County.

17. Copyright. No reports, data, programs or other materials produced, in whole or in part for the benefit and use of the County, under this Agreement shall be subject to copyright by the Permittee in the United States or any other country.

18. Modification. No modification of this agreement shall be binding on County or the Permittee unless reduced to writing and signed by a duly authorized representative of County and the Permittee.

19. Standards of Operation.

a. Permittee is only authorized to utilize Kayaks/Canoes and Standup Paddle Boards.

Under no circumstances shall Permittee utilize other watercraft other then as permitted herein.

b. Permittee agrees to adhere to the rules and regulations attached hereto as Exhibit B.

c. Permittee agrees to secure and maintain all licenses and permits required to operate.

Permittee shall meet all federal, state, county and municipal laws, ordinances, policies and rules. A Permittee, conducting tours in the designated area of parks, shall have the appropriate Business Tax Receipt and proof of liability insurance in force.

d. Permittee is responsible for payment and remittance to the proper governmental authority of all taxes and fees, whether local, state, or federal, which shall be imposed or assessed by any and all governmental authorities in connection with the business or operation conducted under this Agreement.

e. Permittee is responsible for requiring and maintaining on file Patron’s signed waiver form of liability absolving Brevard County Board of County Commissioners of any liability for death, injuries, or property damage incurred while participating in the commercial operation; copies of the waiver forms are subject to audit.

f. All eco-tour patrons must wear lifejackets and guides must ensure adequate operable audio warning devices are available to all patrons in accordance with U.S. Coast Guard requirements while on the waterways.

g. Permittees agree to remain ashore in the threat of severe or inclement weather and/or to immediately seek safe harbor upon the first indication that an impending weather conditions might endanger the patron.

h. The Permittee must supervise the conduct of its patrons and/or employees to ensure that any such activities are not inconsistent with the proper safety, enjoyment, and protection of visitors; any improper actions or activities must be corrected immediately and effectively.

i. The Permittee must maintain an alcohol and drug-free commercial operation.

j. The eco-tour must not interfere with the general public’s use of park facilities.

k. All eco-tours shall be conducted during park operation hours and authorized night park hours per Exhibit A.

20. Administration. The Permittee, in accepting this agreement, acknowledges and agrees that the County shall have the right and the authority, but not the obligation, to adopt Rules and Regulations regulating the Permittee’s conduct of its business when operating in County parks; to set schedules and times for operation and for use of all facilities; to resolve disputes between Permittees, or with County residents or County property owners; and to take such other or further action as may, in the County sole discretion, be necessary to further or promote the public health, safety, and welfare. Any decisions by any member of the County administration as relates to the above authority may be appealed by the Permittee to the Parks and Recreation Director, or designee, whose decision shall be final.

21. Areas of Operation. The County shall designate the parking location for Permittee vehicles and trailers.

22. Maintenance and Housekeeping.

a. Storage of watercraft, trailers or related equipment is permitted on County property only in designated areas; all watercraft, equipment, and trailers shall be removed from the park at the conclusion of the daily tours.

b. Permittee agrees to limit signage to that signage permanently affixed to the vehicle(s) used to conduct the business.

c. The Permittee agrees to clean and remove paper, trash and debris generated by the eco-tour operator and/or patrons of the business.

23. Termination of Agreement.

a. The Permittee agrees to notify the County, in writing, of its intentions to terminate this agreement.

b. The rights of the Permittee may be immediately terminated by the County upon written notice by certified U.S. mail to the Permittee of failure of the Permittee to comply with the terms, limitations or conditions specified in this agreement. Fees paid are non-refundable.

c. Either party may terminate this Agreement for their own convenience upon providing thirty (30) days’ written notice to the other party. In the event of a termination for convenience, permit fees shall not be refunded.

24. Non-Exclusivity. The Permittee and the County agree that the use of the designated parks and recreational areas as a commercial eco-tour location is non-exclusive. The Permittee shall not interfere with the general public’s or other Permitee’s use and enjoyment of the park.

25. Business Interruption. The County shall not be liable to the Permittee for any damages arising out of the temporary prohibition of use and/or access to the designated parks, docks or launch areas which prohibits the Permittee from being present and/or engaging in its business activities.

26. Notice. Notice under this Agreement shall be given to the County by mailing written notice postage prepaid, to the Brevard County Parks and Recreation Department at 840 Forrest Avenue, Cocoa, FL 32922; and notice shall be given to the Organization by mailing written notice, postage prepaid, to <ECO TOUR VENDOR NAME>

27. Assignment. The Permittee shall not assign any portion of this Agreement.

28. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)

IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day and year first above written.

BREVARD COUNTY PARKS AND

RECREATION DEPARTMENT:

By: ________________________________________ Ian Golden, Director

Parks and Recreation Department

Date

WITNESS: PERMITTEE:

____________________________ By:_______________________________________

<ECO TOUR VENDOR NAME>

Date

Exhibit A

ECO-TOURS RESTRICTED PERMIT INFORMATION

Approved Eco-Tour Vendor Restricted Permit Launch Sites:

Manatee Cove

Tours may be operated at the Manatee Cove location five (5) days per week, Monday - Friday.

Tours and rentals of watercraft are not to exceed twenty (20) total watercrafts operating at a time per vendor.

Additional days and times may be allowed at the discretion of management.

An appropriate number of tours per day may be allowed at the discretion of management, with no more than one tour operating at a time per vendor.

Hours of Operation: 24 Hours a day

Kelly Park

Tours may be operated at the above location seven (7) days per week with no holiday restrictions.

Tours and rentals of watercraft are not to exceed thirty (30) total watercrafts operating at a time per vendor.

Unlimited tours per day with no more than one tour operating at a time per vendor.

Hours of Operation: 24 hours/7 days a week (Park with Boat Ramps)

Exhibit B

RULES & REGULATIONS GOVERNING COMMERCIAL

ECO-TOURS IN COUNTY PARKS

All commercial operations within or from any County park must have Permittee rights granted to the business owner.

The Permittee agrees to abide by the terms and conditions of the eco-tour permit agreement. Violations will result in termination of the agreement and loss of rights and privileges to conduct specified commercial operations.

Permittees are responsible for the supervision and conduct of their patrons.

Permittees must educate patrons to respect the fragile environment, waterways and wildlife and to discourage patrons from feeding, touching, petting or otherwise disturbing wildlife.

Permittees agree to clean and remove trash and debris generated by their operations or patrons.

Storage of watercraft, trailers and related equipment on County property within approved areas designed by Central Area Parks Manager; all such items must be removed from park at the conclusion of the contract.

Permittees shall not charge patrons a parking fee.

Permittees agree to restrict commercial signage to that permanently affixed to their vehicles and approved sign area designated and approved by Central Area Parks Manager.

Permittees agree to comply with schedule and location restrictions as outlined in Exhibit A.

All patrons must wear lifejackets and guides must ensure adequate operable audio warning devices are available to all patrons in accordance with U.S. Coast Guard requirements.

Permittees agree to conduct themselves and their businesses in an ethical and cooperative manner and to facilitate a harmonious locale by getting along with other operators and private park users.

Any problems, disputes or concerns are to be directed to the Parks and Recreation Director located at 2725 Judge Fran Jamieson Way, Bldg. B Suite 203, Viera, Florida, 32940.