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1st Renewal 08/19/2009 DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: August 24, 2009 TO: Peter Horton, Director of Airports VIA: Revette Moore, Director of Operations Pamela G. Hanco(Jt.c. FROM: At the August 19, 2009, Board of County Commissioners meeting, the Board granted approval and authorized execution of a Renewal Agreement between Monroe County and Orion Bank for an Automated Teller Machine at the Key West International Airport. 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 w/o document Finance File / RENEWAL AGREEMENT AUTOMATED TELLER MACHINE KEY WEST INTERNATIONAL AIRPORT This Agreement is made and entered into by and between Monroe County, a political subdivision of the State of Florida, owner of Key West International Airport, whose address is 3491 South Roosevelt Boulevard, Key West, Florida 33040, hereinafter referred to as "Lessor", and Orion Bank, a State of Florida chartered, locally owned, independent bank, whose address is 2150 Goodlette Road North, Naples, Florida, 34102, hereinafter referred to as "Lessee". WHEREAS, on the 17th day of March, 2004, the parties entered into an agreement granting the Lessee the right to maintain and operate an automated teller machine at the Key West international Airport. A copy of the original agreement is attached to this renewal agreement and made a part of it; and WHEREAS, the original agreement term ended on January 12, 2009 but the Lessee desires to exercise its option to renew the original agreement an additional 5 years; now, therefore, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: 1. Paragraph 2 of the original agreement is amended to read: 2. Term. The term of this Agreement is for a term of five (5) years, commencing on July 1,2009, and terminating on June 30, 2014. 2. Paragraph 3 of the original agreement is amended to read: 3. Rental and Fees. The rent for the premises for the initial year of this renewal agreement shall be $699.43 per month, plus applicable sales tax. Rental rates are subject to revision annually, in accordance with the percentage change in the Consumer Price Index for all urban consumers (CPI-U) for the most recent 12 months available. In the event the A TM terminal has to be relocated Lessee shall be responsible for all work, including the hiring of a contractor, related to the relocation. The County will bear the cost of relocation in the event the A TM terminal has to be relocated during the existing terminal renovation phase of the Key West International Airport - New Terminal Construction and Renovation project. The County, at its sole discretion and upon presentation of invoices for the relocation work, shall either reimburse the Lessee for the cost of the relocation work or shall offset any future rents in the form of a rent credit up to the cost of the relocation work. 3 The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 29. 29. Severabilitv. 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 Lessor and Lessee 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. 4. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 30. 30. Attornev's Fees and Costs. The Lessor and Lessee agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 5. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 3] . 31. Binding Effect. The terms, covenants, conditions, and prOVISIOns of this Agreement shall bind and inure to the benefit of the Lessor and Lessee and their respective legal representatives, successors, and assigns. 6. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 32. 32. 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. 7. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 33. 33. Adjudication of Disputes or Disagreements. Lessor and Lessee agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session. the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. 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. 8. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 34. 34. 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, Lessor and Lessee 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. Lessor and Lessee specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 9. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 35. 35. Nondiscrimination. Lessee agrees 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. Lessor and Lessee 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 patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the patties to, or the subject matter of, this Agreement. 10. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 36. 36. Covenant of No Interest. Lessor and Lessee covenant that neither presently has any interest, and shall not acquire any interest, which would contlict in any manner or degree with its performance under this Agreement, and that only interest of each is to perfOlm and receive benefits as recited in this Agreement. 11. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 37. 37. Code of Ethics. Lessor 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, conflicting employment or contractual relationship; and disclosure or use of certain information. 12. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 38. 38. No Solicitation/Payment. The Lessor and Lessee 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 Lessee agrees that the Lessor shall have the right to tenninate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 13. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 39. 39. Public Access. The Lessor and Lessee 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 Lessor and Lessee in conjunction with this Agreement; and the Lessor shall have the right to unilaterally cancel this Agreement upon violation of this provision by Lessee. 14 The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 40. 40. Non- Waiver of Immunity. Notwithstanding he provisions of Sec. 768.28, Florida Statutes, the participation of the Lessor and the Lessee 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 Lessor be required to contain any provision for waiver. 15. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 41. 41. 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 Lessor, 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. 16. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 42. 42. 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 Lessor, except to the extent permitted by the Florida constitution, state statute, and case law. 17. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 43. 43. 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 Lessor and the Lessee agree that neither the Lessor nor the Lessee 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. 18. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 44. 44. 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 Lessor in his or her individual capacity, and no member, officer, agent or employee of Lessor shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 19. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 45. 45. 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. 20. The following paragraph is appended to the Renewal Agreement and incorporated into the original agreement as paragraph 46. 46. Mutual Review. This agreement has been carefully reviewed by Lessor and Lessee, therefore this agreement is not to be construed against either party on the basis of authorship. 21. Except as set forth in paragraphs one (1) through twenty (20) of this Renewal Agreement, in all other respects, the terms and conditions of the original agreement remain in full force and effect. \ ..d~ \YlTNESS WHEREOF, each party has caused this Agreement to be executed by its duly aut~~yrl representative. \ \ , \ (SEALY ATTEST: DANNY L. KOLHAGE, CLERK Bt:?~ Deputl' Clerk AUG 1 9 2009 Date (Qb~Me ~~all./1+l. ~~ ), lrt.-. ~2i' \ 'v'- Witnesses "j"'-NcJ L- BenL Date & - lq-.o't BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By A,;-~. >nolA4.'~ Mayor George Neugent ORION BANK. By /Jv JeFF;e bevt/&/ Title ---Y ~ ~Gi I,'k $ ~.sfv~~"t1 d as to form by: ~ - 0 S2 )':> ~.:t.~ ('"") __ :::Or-";;;" 9 r-r1 4: i" q :z) -<: ~--") ;,::,< j-- (:) . .._ C) --- ::;: ~- """" ..:e.::tiO . r- .::! 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